Bardon of Hollywood

National Labor Relations Board - Board Decisions

Apr 10, 1943

48 N.L.R.B. 1055 (N.L.R.B. 1943)

In the Matter of S. S . SLATE, AN INDIVIDUAL , DOING BUSINESS AS BARDON:
OF HOLLYWOOD , and AMALGAMATED CLOTHING WORKERS OF AMERICA,,
C. I. O.
Case No. C-2513.-Decided April 10, 1943
Jurisdiction : garment manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements, instigation by-
forelady of circulation of petition offering not to join Union if raises were
granted; speech by employer stating knowledge of union's solicitation , telling
employees that if they signed union cards they would be working for union,
and announcing wage increase.
D isci vnnnation: lay-off of, one employee ; discharge of, and subsequent reinstate-
ment to non-substantirlly equivalent employment of, one employee; charges of,
dismissed as to discharge of two employees and as to allegation that one of
these was discriminated against upon reinstatement.
Remedial Orders : employer ordered to cease and desist unfair labor practices,
reinstate one employee with back pay, and make whole another-for loss during
d'scrimiantory hay-off
DECISION
AND
ORDER
On January 19, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that he cease and,desist therefrom and take certain
affirmative action as set forth in the copy of the Intermediate Report
annexed hereto. Thereafter the respondent and the Union filed
exceptions to the Intermediate Report and the respondent filed a brief
in support of his exceptions.
During the hearing, the Trial Examiner ruled upon various motions
and upon objections to the admission of evidence. The Board has
reviewed the rulings of the Trial Examiner and finds that no preju-
dicial errors were committed. The rulings are hereby affirmed.
Pursuant to notice, a hearing for the purpose of oral argument was
held before the Board on March 9, 1943, at Washington, D. C. They
Union was represented by counsel and presented argument. Thee
respondent did not appear. The Board has considered the hitermedi-
48 N. L R B. No. 130 -
1055
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.ate Report, the exceptions and brief, and the entire record ni the case,
and hereby adopts the findings, conclusions, and recommendations
made by the Trial Examiner, with the exceptions and qualifications
.noted below : -
A. Interference, restraint, and coercion
We agree with the conclusions of the Trial Examiner that the
respondent interfered with, restrained, and coerced his employees-by
his statements to Fernandez on February 15, 1942; by the action of
Forelady Weingarten in instigating the circulation of petitions in the
plant on February 20; by the respondent's speech on February 20 in
which he told employees he knew the Union was soliciting their mem-
bership, warned them that they would' be "working for the Union" if
they signed application cards, and announced an increase in wages;
and by granting a wage increase immediately following the receipt
of a petition wherein employees represented, in effect, that they would
not join the union if the respondent granted wage increases.'
` 'In addition, we credit the testimony of employee Amelia Alcala that,
shortly before February 20, Weingarten asked her and Aurora Parra
whether union organizers had been to see them, and told them not to
join the Union. Although, on cross-examination, Alcala testified
that Weingarten also told them that "it was entirely up,to the girls if
they wanted to join or not to join," we consider that Weingarten's
advice not to join the Union nevertheless constituted unlawful inter-
ference with the employees' rights to self-organization. Weingarten's
purpose to discourage membership in the Union is further illustrated
by the testimony of Edith Jenkins that shortly after the respondent
Slate had made the speech to the employees on February 20, 1942,
Forelady Weingarten told Jenkins and several other employees in the
cloak room that she "knew everybody that had joined the Union, and
that we wouldn't be one big happy family any more." Weingarten
denied( making this statement, but we do not credit her denial. We
find in accordance with Jenkins' testimony.
We find that by the above-recited acts of Weingarten the respondent
has interfered with, restrained, and coerced his employees in the exer-
cise of the rights guaranteed them in Section 7 of the Act.
B. The discharges
Mary Elias
The Trial Examiner found that Mary Elias was discriminatorily dis-
charged on February 10, 1942. We do- not agree with this finding.
' See Matter of Medo Photo Supply Corporation and American Federation of Photo
Employees Union, Local 21314, A. F. of L, 43 N . L. R. B. 989.
BARDON OF HOLLYWOOD 1057
The evidence shows that when Slate saw the garnishment on the desk
of Mildred, the bookkeeper, he asked who Elias was, whether she was
a 'good operator, and whether other garnishments had been received.
Mildred told him that Elias was a good operator, that no other garnish-
ments had been received on her salary, but that "we have received
numerous telephone calls for. her, and I have taken messages back to
her ... she stays out a lot. She goes and comes as she pleases."
Although the respondent's action in discharging Elias, without inquir-
ing into the circumstances or allowing her an opportunity to explain
them, was clearly harsh and impulsive, there is no showing that he
was acting otherwise than in good faith and for the reasons given by
him.2 Furthermore, there is no evidence in the record to contradict
the testimony of Weingarten that Elias was the first employee of the
respondent whose wages had been garnisheed. We are not convinced
that Elias' discharge on February 10, 1942, was because of her union
membership and activity.
Nor do we agree with the Trial Examiner's finding that the termina-
tion of Elias' employment on May 28, 1942, was tantamount to a dis-,
charge and that the respondent thereby discriminated in regard to her
hire and tenure of employment. It appears from the record that 'al-
though the machine to which Elias was assigned was somewhat slower
than the one she had previously used and was not operating properly
even after it had been partially repaired on May 20, Elias did not
inform either Foreman Noon or Forelady Weingarten of this fact but
complained only to the machinist, who continued his attempts to repair
the machine. Under these circumstances, we do not believe that the
respondent's failure to inquire into the cause of Elias' low production
record before giving her the notice of May 27 was unreasonable. Elias
did not protest the receipt of the notice nor attempt to justify her
failure to meet the minimum wage requirement. Thus, although the
respondent is presumed to have known that Elias would earn from
15 to 50 cents less per day on the Lewis machine, because it was a slower
machine, it.does not appear that there was any reason for him to know
why her earnings fell almo8t $4 below the minimum for 17_ hours of
work.
We find that the voluntary termination by Elias of her employment
on May 28 was not discriminatory.
Nellie Skinner
The Trial Examiner found that Nellie Skinner was discharged on
February 17, 1942, for reasons other than her, union membership and
ewe note also the uncontradicted testimony of Noon'that on February 4, when the gar-
nishment was first received, he prophesied to Elias the reaction of 'Slate if he learned of
the writ. '
1058 DECISIONS OF NATIONAL LABOR RELAT202,6 BOARD
activity. We disagree with this finding. It is clear that whatever
faults Skinner had as an employee were known to the respondent
throughout the entire period of her employment. On February 17,
she was summarily discharged, and the respondent points to `no inci-
dent which is alleged to have precipitated such action. Skinner testi-
fied that on the day of her discharge she, spoke to Weingarten in a
loud voice about'something relating to her work, but it is not shown
that Weingarten was annoyed by" this or attached any particular
importance to the incident at the time of its occurrence. In addition,
we are impressed by the- fact that Noon and Weingarten gave Skinner
inconsistent reasons for her discharge. Skinner testified without con-
tradiction that on the day after her discharge Foreman Noon told
her that she had been dismissed for failure to earn the minimum wage.
Although, according to Weingarten's version 'of what occurred, she
told Skinner, "Well, you don't produce no work," it is clear that
Weingarten gave as the principal reason for Skinner's discharge her
"singing and . . . whistling and . . . hollering." We credit Skinner's
testimony that she had never been told that she was not earning the
minimum wage.
We find that Skinner's discharge on February 17, 1942, was due to
her union membership and activity and that the respondent has thereby
interfered with, restrained, and coerced his employees in the exercise
of the rights guaranteed in Section 7 of the Act.
We agree with the conclusion of the Trial Examiner that the re-
spondent discriminated in regard to the hire and tenure of employment
of Skinner after her reinstatement of May 20, 1942. As we have found
above, Skinner's discharge on February 17 was discriminatory. The
respondent was therefore under a duty to reinstate her to her former
or substantially'equivalent employment on May 20. The respondent
was aware of Skinner's inability to perform the collar operation arid,
prior to her discharge, had not required her to do it. Upon her re-
instatement she was given collars to work on, over her protest. Wein-
garten's explanation of the reason for the change is unconvincing,
especially in view of the fact that the employee Margaiet was per-
mitted to work on collars only at the stfine time. We find that Nellie
Skinner, was not reinstated to her former or substantially equivalent
employment. Under these circumstances her reinstatement did not
remedy the respondent's discrimination against her and cannot be
considered as compliance with the respondent's duty under the Act.,-
I See Matter of A. Sartorious C Co, Inc, and United Mine TV071 ers of America, Dish let
#50, Local #15090, 40 N. L R B. 107 (141, 142) in which we said, "Moreover, an offer
of reinstatement . . followed by the assignment of positions not substantially equivalent
to their former positions . . . can hardly be considered to have been an offer presented
in good faith. Reinstatement or an offer thereof under such circumstances constitutes no
i einstatement or offer at all."
BARDON OF HOLLYWOOD 1059
Moreover, we agree with.the Trial Examiner that the respondent's
insistence that 'Skinner perform a type of work at which she was
known not to be proficient constituted' further discrimination, against
her, and that under the circumstances the termination of her employ-
ment,on May 22, 1942, when she quit her job, was in legal effect a
discharge.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, S. S. Slate, an individual,
doing business as Bardon of Hollywood, Los Angeles, California, his
agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in the Amalgamated Clothing
Workers of America, C. I. 0., or any other labor organization, by
discharging, laying off, or refusing to reinstate any of his employees,
or in any other manner discriminating in regard to their hire and
tenure of employment, or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the rights to self-organization, to
form, join, or assist labor organizations, •to bargain collectively
through representatives of their own choosing; or to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of, the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole Fernnnda Fernandez for any, loss of pay she may
have suffered by reason of the respondent's discrimination against
her, by paying to her a sum of money equal to that which she nor-
mnally would have earned as wages during the period of the respond-
ent's discrimination against her, less her net earnings during said
period ;
(b) Offer to Nellie Skinner immediate and full reinstatement to her
former or substantially equivalent position without prejudice to her
seniority or other rights and privileges;
(c) Make whole Nellie Skinner for any loss of earnings she may
have suffered by reason of the respondent's discrimination against
her, by paying to her a sum of money equal to that which she nor-
mally would have earned as wages during the period from February
17, 1942, to the date of the respondent's offer of reinstatement, less
her net earnings during that period;
(d) Post immediately in conspicuous places throughout his Los
Ai uples, California, plant and maintain for a period of at least
521247---43--o1 48-68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sixty (60) consecutive days from the date of posting, notices stating:
(1) that the respondent will not engage in the conduct from which
-he has been ordered to cease and desist in paragraphs 1 (a) and (b)
of this Order; (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3)
that the respondent's employees are free to become or remain mem-
bers of Amalgamated Clothing Workers of America, C. I. O. and that
the respondent will not discriminate against any employee because of
membership in or activity on behalf of that organization ;
(e) Notify the Regional Director for the Twenty-first Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
And it is further ordered, That the complaint be, and it hereby is;
dismissed insofar as it alleges that the respondent discriminated in
regard to the hire and tenure of employment of Fernanda Fernandez
by discharging her on-June 1, 1942, and of Mary Elias by discharging
her on February 10, 1942, and by discriminating against her following
her reinstatement on May 20, 1942.
INTERMEDIATE REPORT
Mr. Daniel J. Harrington, for the Board.
Mr. Leo Shapiro, of Los Angeles, Calif., for the respondent.
STATEMENT OF THE CASE
Upon an amended charge duly filed on October 8, 1942 , the Amalgamated Cloth-
ing Workers of America, an affiliate of the Congress of Industrial Organizations,
herein called the Union, the National Labor Relations Board, herein called the
Board, by its Regional Director for the Twenty-first Region (Los Angeles, Cali-
fornia), issued its complaint dated October 8, 1942, against S. S. Slate, an indi-
vidual, doing business as BARDON OF HOLLYWOOD, herein called the respond=
ent, alleging that the respondent has engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (1) and (3),
and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. , A copy of the complaint, accompanied by notice of hearing
was duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged: (1) that the
respondent during November or December of 1941, and during the period from
February 1942, up to and including the date of this complaint, engaged in sur-
veillance of employees for the purpose of determining their union membership
and activities, solicited employees to spy on fellow employees who were in favor
of labor organizations, questioned employees about the Union and their member
ship therein, threatened employees that he would terminate his business if em-
ployees joined the Union or engaged in organizational activities, told employees
that the Union had compelled other plants to terminate their operations, caused
and permitted the circulation among his employees during working hours of
petitions for increases in wages in order to defeat the Union's organizational
BARDON OF. HOLLYWOOD 1061
campaign , promised employees increases in wages if they would'not join the
Union, threatened employees with discharge if they joined the Union or engaged
in organizational activities, told employees that he had knowledge of those em-
ployees who were members of the Union, expressed to employees his opposition
to the Union, advised employees to form their own unaffiliated labor organization,
referred to union officials, as racketeers, and informed employees that they should
pay no attention to union organizers, (2) that the respondent on or about'
February 10, 1942, discharged Mary Elias, on or about February 19, 1942, dis-
charged Nellie Skinner, and on or about April 8, 1942, discharged Frankie Deming,
and at all times since said dates has refused- to reinstate said employees and
each of them, except that on or-about May 20, 1942, respondent reemployed Mary
Elias and Nellie Skinner, with prejudice, however, to the rights and privileges
to which said employees were and are entitled, for the reason that said employees,
and each of them, joined and assisted the Union and engaged in concerted activi-
ties with other employees for their mutual aid and protection, and (3) that the
respondent laid off Fernanda Fernandez from on or about April 30, 1942, to on
or about May 11, 1942, furnished said employee with less employment than said
employee would normally have received from on or about May 11, 1942, to on or
about June 1, 1942, and on or about June 1, 1942, discharged and at all times
since said date has refused to reinstate said employee, for the-reason that said
employee joined and assisted the Union and engaged in concerted activities with
other employees for their mutual aid and protection.
On or about October 15, 1942, the respondent filed its answer admitting that
it ` was engaged in interstate commerce within the meaning of the, Act, and
that the, Union was a labor organization. The respondent, however, denied
that he had committed any of the unfair labor practices alleged in the com-
plaint.
Pursuant to notice, a hearing was held in Los Angeles, California, from
November 10 to November 17, 1942, before the undersigned, the Trial Exami-
ner duly designated by the Chief Trial Examiner. The Board and the re-
spondent were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties. '
At the close of the Board's case, counsel for the Board moved to dismiss
the allegations of the complaint pertaining to\ Frankie Deming. The motion
was granted. At this time the respondent's counsel also offered 13 motions
(numbered 1 to 13) : The first 9 being motions to strike certain testimony;
the remaining four motions, in the order presented, respectively prayed that
the allegations of paragraphs, 4, 5 and 6 and all of the allegations of complaint
be dismissed, the latter, on the ground that the amended charge filed by the
Union was signed by a person not authorized to make a charge. ' The under-
signed granted the 7th motion,and the 10th motion in part.'. The 13th motion,
' The 7th motion was to strike certain testimony of Board's witness Skinner , as follows :
Skinner; in substance testified that on the morning of May 20, shortly after she had been
reinstated to her job in the plant that "Pauline" a non -supervisory employee and sister
of Forelady Weingarten had said to other employees , that she, Pauline , wondered why
Skinner had returned to the plant , since she had worked in every plant in town and could
not hold a job. The 10th motion prayed for the dismissal of all allegations in paragraph
4 of the complaint , namely the specific ,allegations of interference , restraint , and coercion.
The motion was granted as to the following allegations therein : "Threatened employees
that he would terminate his business if employees joined , the Union , told employees that
the Union had compelled other plants to terminate their operations "
I
1062 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to dismiss the, complaint , was denied All other motions were denied without
prejudice to later renewal . At the close of the hearing , all motions previously
denied without prejudice were renewed and are hereby denied, excepting the two
motions asking for the dismissal of the allegations in paragraphs 4 and 5 of the
complaint , pertaining to discrimination in regard to hire and tenure of employ-
ment of the employees named in the said paragraphs , which have been treated,
in the findings , conclusions and recommendations of- this report . Also at the
close of the hearing the respondent ' further moved that the complaint be dis-
missed for failnie of the -evidence to show that respondent was engaging In
interstate conunelce , which motion was denied 2 .
At the conclusion of the healing , the parties were informed that they, might
present oral arguments before the undersigned Both parties presented oral
arguments.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following
FINDINGS OF FACT
I THE 13USINESS OF THE RESPONDENT'
The respondent , S. S. Slate, an individual, doing business as BARDON OF
HOLLYWOOD , is engaged in the manufacture of men 's and boys ' garments at
its plant in Los Angeles , California. The principal raw materials used in con-
nection with the business are cotton, rayon and wool piece goods. During the
year of 1941 the respondent purchased raw materials , as mentioned above, having
an approximate value of $250 ,000, of which approximately 80 percent was trans-
ported in interstate commerce to the respondent 's plant from outside the State
of California . Also in the year of 1941 the respondent 's sales of processed goods
were approximately $400,000 of which approximately 25 percent were made to
customers in States other-than California.
II. TIE ORGANIZATION INVOLVED
The Amalgamated Clothing Workers of America, is a labor organization
afhliated with the Congress of Industrial Organizations , and admits to member-
ship employees of the respondent.
11I THE UNFAIR LABOR PRACTICES
A Interference,. restraint , and coercion
Prior to February 1942 there has been no labor organizational activities among
the employees of the respondent . In the early part of February . Griselda Kuhl-
man, an organizer for the Union , started to call at the homes of the employees to
solicit them to sign union application cards. The Union held seveial organiza-
tional meetings , some of which were held on unspecified dates in February.
The evidence shows that approximately 40 out of a total of about 140 production
employees signed application cards from early February to the time of the
hearing. On February 17, 1942, and at various times thereafter , union literature
was passed out near the door of the plant by Union representatives.
Mary Elias, a machine operator, signed a union apphcation, card on February
6, 1942 . On February 10, 1942 ,• she was discharged . On February 12, 1942, the
I
=In the Matter of Botany Worsted Mills and Textile Wor7,ers Union of Amertica, C I C_
41 N. L. R B. 218.
BARDON OF HOLLYWOOD- 1063
Regional Director in the Los Angeles office for the Board, notified Slate by letter
that the Union had filed a charge claiming that Elias had been discharged for
engaging in union activities, which letter was received in due course.'
Fernanda Fernandez, a working group leader in the pressing department,
testified that on or about February 15, 1942, she went into Slate's office and
asked his advice concerning her joining the Union; that in substance, Slate then
told her that the Union was not a good. union to join; that a factory union
organized by the employees in the plant would be a better organization ; and
that the Union then organizing was made up of racketeers Slate denied in his
testimony that he had ever held a conversation with Fernandez concerning
unions. Upon a consideration of all the evidence in the -record, especially
as found below, the evidence concerning a petition circulated in the plant and
Slate's speeches to the employees on February 20, 1942, and April 25, 1942,ithe
undersigned accepts the above testimony of Fernandez as credible and true.
Considerable testimony was offered concerning the initiation, drafting, and
circulation of a petition for wage increases in the ' plant on the morning of
February 20, 1942. Fernandez testified that on February 19, 1942, Forelady
Weingarten asked if she had heard there was to be a strike in the plant on
February 20; that Foreman Noon was taking steps concerning the strike ; that
she, Weingarten, had to do something to stop this trouble ; that on the morning
of February 20, 1942, she, Fernandez, saw Noon standing near the door of the
plant with three, police officers, but that all employees reported to work and no
strike occurred ; that shortly after the plant commenced operations on the 20th
Weingarten came over to her iwhile Fernandez was working, asked her before
joining the Union, to give Slate a chance and for her to prepare a paper request-
ing Slate to grant a wage increase and to circulate it among the pressers and
hand sewers; that Weingarten at this time also said that she had asked em-
ployee "Pancho"' to circulate a similar paper in other departments of the
plant; that after Weingarten had spoken to Fernandez, Fernandez asked Connie
Santos, another presser, if she had heard Weingarten's request to circulate a
paper and Santos admitted that she had ; that Fernandez then requested Santos
to write out a petition, which thereafter was circulated among the pressers and
handsewers ; and that "Pancho" also on the morning of February 20 told Fer-
nandez that Weingarten had asked her to circulate a paper among the em-
ployees asking for a wage increase. According to testimony by Board witnesses
Jenkins and Montoya, "Pancho" circulated a petition in the plant, at the same
time the so-called Fernandez petition was circulated. According to Jenkins,
when "Pancho" asked her to sign the paper the latter told her that the purpose
of securing the signatures was to indicate that the subscribers thereto desired
a wage increase and wanted no union in the plant.
Weingarten admitted as a witness that she had spoken with Fernandez on
February 19, 1942, but denied that she had said 'anything concerning a strike on
February 20 She testified that Fernandez told her that dissatisfaction con-
cerning wages existed in the pressing department. She told Fernandez to select
one or two others from'the pressing group, take them to Slate's office and request
wage increases. Weingarten denied that she had talked with Fernandez on
the morning of February 20 until about 10: 30 at which time Fernandez had
shown her a petition signed by a group of employees; at which time she told Fer-
nandez to select one or two other pressers and hand the petition to Slate. Wein-
garten also denied that she had requested either Fernandez or "Pancho" to cir-
8 The discharge of Elias is more fully treated in Section III B below, wherein it is found
that this discharge was based upon h_er union activities.
' Issura Navario.
1064 DEGLSIONS OF' NATIONAL LABOR. RELATIONS BOARD
culate any papers in the plant and testified that she had no knowledge that
such papers had been-circulated until Fernandez showed her the one'she cir-
culated, and.that she had never seen the one circulated by "Pancho."
Although he was a witness , Noo'u did not deny that he was standing near the
entrance of the plant with .a group of police officers on the morning of February
20. "Pancho" was not called as a witness, so that the testimony of Jenkins and
Montoya concerning the circulation of the petition by "Pancho" stands uncontra-
ldicted.. Santos, a witness for the respondent testified that she did not see Wein-
garten talking to Fernandez on the morning of February 20 until after the peti-
tion had been drafted and circulated at which time she saw Fernandez show it
to,Weingarten, but did not•hear their conversation. ' Santos denied that she told
Fernandez that she heard Weingarten tell Fernandez to write out a paper before
the petition was drafted and circulated Santos impressed the undersigned as
a truthful witness and he accordingly finds that she did not hear any conversa-
tion between Weingarten and Fernandez before the petition had been circulated
on the morning of February 20. -
Obviously there is a contradiction between the testimony of Weingarten and
Fernandez concerning the responsibility for the initiation and circularization, of
the petitions However, at the time of these activities it appears-tliat Fernan-
dez's interests leaned toward the employer.' Weingarten by reason of these
circumstances therefore would probably be inclined to discuss with Fernandez
the apprehension of the management concerning the organization of the em-
ployees by the Union. The activities of "Pancho", who 'still continues to be
employed in the plant were not explained or contradicted A consideration of
the above testimony together with all other evidence in the record has convinced
the undersigned that Weingarten instigated the circulation of the petition by
Fernandez and "Pancho" to discourage union activities among the employees.
On the morning of February 20, 1942, after a brief discussion among the
pressing group concerning the form of the petition, Fernandez requested Connie
Santos, one of the pressers, to write it and told Santos what the caption of the
petition should state. Santos wrote out the petition and read it to Fernandez
who signed it. It was then passed from hand to hand among the other girls
-in the pressing and hand sewing departments for their approval and signatures.
At or about the same time the petition was being circulated in that department,
"Pancho" was circulating a paper in one of the other departments stating to
those to whom it was. presented that the purpose of soliciting the signatures
thereon was to indicate that the subscribers desired a wage increase without
-having to join a union. According to the evidence the "Pancho" document was
destroyed about noon on February 20.
Fernandez showed the signed petition to Weingarten about 10: 30 a. in. on
February 20, 1942. After reading it Weingarten returned it to Fernandez and
told her to pick out two or three of the girls who had signed it and present it to
Slate.
Shortly before noon on February 20, 1942, Fernandez presented the petition to
Slate in his office. The petition was as follows'
Mr. Slade: (sic)
Speaking for all the pressers and hand sewers , I have this to say. None
of us have signed with the Union , because we have appreciation ( sic)'; for
what you have done for us. And naturally we want to give you first
chance to tell us u-hats ( sic) on your mind and what you think about the
'Fernandez did not sign an application card for membership in the Union until March
30, 1942. ,
BAR.DON OF HOLLYWOOD 1065-
situation. We will await your opinion. What we want is a raise, ;the Union
promises the Pressers & Sewers the - minimum ( sic) of $20 to the newer girls.
If -such suggestions are not convient (sic) for you then as head of the
Pressing Dept. I won't be responsible, if the girls do sign with the Union.
But first we want to give you the fair trail (sic) you deserve. - We will be
waiting to hear from you. -_
FmtNANDEZ
A. Alcala - Genevieve C. Delgado
Nelle Pollom Gilorma Fratello
Jeannette Watson Frances Salagar •
Mary Gonzales Leandra Lopez
Epefania Zuniga Connie Santos
Stella Rodriguez Eva Smith
Maxine Zuniga Moyne Arnold
Anne Martinez Rita 0livas
Benedicta Martinez Maria Orozco -
Clara Ledesnia , Adelin Padilla
Josephine Espionsa Antonia Banha
Nellie De Leon / Manuela Lopez
Lupe Montoya Sally Rocha
After_ Slate. read - the petition, he asked who had` drawn it up. Fernandez
replied that it had been written up by some of the girls in the pressing department.
Slate then stated that he would consider the matter and would inform the em-
ployees concerning it later in the day.
A few hours thereafter Weingarten notified all the employees that Slate would
speak to them at the end of the day The power was turned off about 15 minutes
before closing time and Slate spoke to the entire employee group There was no
substantial disagreement in the testimony given by witnesses for the Board and
that -given by Slate concerning what he stated in his speech to, the employees.
Montoya, Jenkins, and Fernandez, witnesses for the Board testified, in substance,
that Slate told the group that he knew union organizers were calling at the homes
of employees to solicit them to join the Union; that before joining the Union they
should be sure that they understood what they were signing, because, should they
sign union application cards, they would then be working for the Union rather
than for him ; that if the employees had any complaints to bring them to Noon
or to him and they would be straightened out ; and that he was going to give them
a 10 percent pay increase, due to the increase in the cost of living Slate, in his
testimony, said that it was his recollection that he had Spoken to them as
follows : -
Your have a right as an American to sign or not to sign No one can tell
you what to do. You have got to use your own judgment. But just be sure
you know what you're signing, because once you sign you're working under
their [the Union's] supervision. They tell you, what to do and what not to
do. I haven't got a thing to say about it -6
Slate in his testimony explained that the idea he desired to convey to his employees was
as follows :
When you sign with the Union you're working under their supervision ; they can pull
you out of my plant, send you to another plant, or send you to picket some drug store,
a restaurant, or whatever it might be ; . . . _ 4
He said that some pickets whom he had previously talked with told him that they were
required by their Union to spend some of their time on picket lines at struck plants
although not employees . This explanation is rather convincing that he was opposed to a
union in his ' plant and intended that his employees should so construe his speech.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Slate made his speech he knew that some, of his employees were engaging
in concerted organizational activities. Moreover, the petition which had been
presented to him had been submitted by the employees of two departments only.
It was signed by 27 of a total of approximately, 140 employees. Slate obviously
took advantage of the situation to call all the employees together to convey, to
theni 'his disapproval of nationally affiliated unions. Under the existing circum-
stances his'statement that either he or Noon would entertain and straighten out
any employee grievances submitted by an employee was tantamount to telling the
employees that they did not need to organize to protect their rights. By induc-
ing Fernandez and "Pancho" to circulate the petitions in the plant which, in
effect, indicated that the employees would prefer pay increases to a union organ-
ization, Weingarten sought to discourage self-organization among the employees.
Since Weingarten was a major supervisor with power to hire and discharge em-
ployees, the respondent is responsible for her activities Also, by granting a
general pay increase when requested by the employees of two departments only
at a time when Slate knew that the employees were engaging in organizational
activities, it is obvious that the respondent's purpose was to discourage such activi-
ties. When it is considered that employees are economically dependent upon
the employer, the speech of Slate on February 20 would be construed by them as
a threat of discharge should they join the Union, and it was so construed accord-
ing to the evidence. Under the circumstances Slate's remarks transcended his
right of free speech.
The undersigned finds that by expressing opposition to the Union, by causing
and permitting the circulation of a petition among his employees for wage in-
creases,which were subsequently-granted, to, discourage self-organization among
the employees, and by threatening employees with discharge if they joined the
Union, the respondent has interfered with, restrained, and coerced his employees
in the exercise of the rights guaranteed in Section 7 of the Act.
B. The discharges
1. Fernanda Fernandez
a.' The lay off of Fernandez
t
The complaint alleged that the respondent laid off Fernandez from on or about
April 30 to on or about May 11, 1942, and thereafter furnished'her with less
employment than she ordinarily would have been entitled to receive and on or
about June 1, 1942, discharged her, all because of her union activities.
Fernandez commenced working for the respondent in the pressing department
of the plant in 1935. In the early part of the year 1936 she became a group,
leader of the employees in the pressing department. As group leader she did
work similar to that of the other pressers, but only Fernandez or Eva Smith,
another presser, folded and pressed special garments intended for use as samples.
She had no power to hire or discharge employees. She was paid on an hourly
rate, her average wages being $23.10 per week, and the other pressers received
$18.70. Foreman Noon testified that she, was an efficient operator who turned
out work faster and better than the others. The record shows that Fernandez
had never been laid off during slack periods until April 30, 1942.
On March 30, 1942, Fernandez signed an application card for the Union and
on April 1, while working with the other pressers, she informed the group col-
lectively that she had joined the Union the night before. On April 2, 1942,
following the above announcement to the pressers, Weingarten requested Fer-
nandez to teach Connie Santos, another presser, how to press and fold samples,
I
BARD O_N' OF HOLLYWOOD - ' 1067
telling her site, Weingarten, wanted Fernandez to press coat linings Later
in the month of April. Fernandez invited Weingarten to attend a union meeting,
but Weingarten refused to go with her stating that she ,had another engagement
On the morning of April 25, 1942" Slate stopped, Fernandez as she was on her
way to the wash room and accused her of having stated that he was paying lower
wages than union plants. About 11: 30 on this same day Fernandez and Montoya
went to Slate's office where both complained to Slate that Weingarten was treat-
ing them unfairly. Slate told them he did not believe Weingarten was treating
them differently than she did any other employee. Upon this occasion Slate
told them that there was a lot of commotion in the pressing department and that
production had fallen so low the pressing work was costing him a fortune At
4: 30 that afternoon he called a meeting of all employees stating the reason to be
that the Union had been circulating literature accusing him of operating a
sweat shop and paying his employees the lowest wages in the industry 8 At that
time he read to them piece rate prices which he stated were being paid to the
employees working for a competitor When he i ead the rates paid for pressing
work by this competitor, he asked Fernandez to take note of these particular rates.
On April 30, 1942, 5 days later, Fernandez was laid off This lay-off lasted
from April 30 to May 8. The following week she worked from Monday to Thurs-
day but was laid off on Friday, May 15. During a period of nearly 7 years' em-
ployment Fernandez had never been laid off before during slack employment
periods. Weingarten and Mildred, the pay roll clerk, testified that some of the
other pressers who had been laid off earlier in April had protested that it was
unfair to permit Fernandez to work full time while they were being laid offf
Weingarten testified that because of these complaints she decided to share the
work among the group and accordingly laid Fernandez off. The pay roll records
in evidence disclose that work was slack during April, May, and June 1942: There
were 13 pressers working in March, 12 in April, 11 in May, and 10 in June.
However, these same records also disclose that Fernandez was laid off for a total
of approximately 81/2 days. from the 30th of April to the 15th of May inclusive,
while several of the other employees in the pressing department lost only 4 or 5
days employment during the period from April 1 to May 15, 1942.
It appears from the above facts that Fernandez was forced to lose more time
due to lay-offs in April and May 1942 than several of the other pressers. Fer-
nandez was the most competent employee in the group. She had never been laid
off previously during-periods of slack employment. It is significant to the, under-
signed that 5 days before she was laid off an April 30, 1942, the respondent
accused 'her of disseminating union statements among the employees concerning
low wages paid in the respondent's plant. It is obvious that when the respondent
spoke of the commotion among the pressing group that he believed it to be due
to wage discussions initiated by Fernandez. The undersigned is convinced and
finds that Fernandez was laid off from April 30 to May 8 inclusive and on May
15, 1942, because the respondent believed her to be engaging in union activities.
b. The discharge of Fernandez on June 1, 1942
After'her lay-off on May 15, discussed above, Fernandez returned to work on
the morning of May 18 and worked the entire day. As mentioned above, Fern-
andez had been group leader of the pressing and folding operators and as such
she had distributed the work to the employees for a number of years. Shortly
° This date was fixed by witness Montoya as April 25, 1942.
8 Slate testified that these accusations had incensed him and that he called the employees
together to try to convince them that the union accusations were unjustified.
1068 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
after work had commenced on the morning of May 18, Forelady • Weingarten
came over to the, pressing group, told Santos o that the government shirts were
coming through that day and instructed her to have the best operator fold them.
According to Santos' testimony, Fernandez was the best folder and she told Fer-
nandez to fold the government shirts.
Fernandez testified that she had heard Weingarten tell Santos to give her
government shirts to fold ; that shortly after work had commenced she had
nothing to do ; that she told Santos she wanted work ; that Parra, the group
leader in the finishing department, then remarked to Santos that the latter need
not take orders from Fernandez, since Fernandez was no longer her boss. There-
after a quarrel started between Fernandez and Parra.
Santos testified that the pressers were slow; that the work was being delayed;
that she observed Fernandez turn around apparently to see if more work was
available; that - Parra was then facing Fernandez; that Santos then heard
Fernandez ask Parra what she was looking at and that Parra then, in substance,
said that she was looking at Fernandez' beautiful figure, whereupon the quarrel
mentioned above started. The testimony of Parra and Salazar, witnesses called
by the respondent, was in substantial agreement with the testimony of Santos
concerning the incident that led to the quarrel. Based upon his observation of
the witnesses, the undersigned accepts the testimony of Santos as being credible
and true.
Salazar testified, and the testimony was not contradicted, that Fernandez dur-
ing the quarrel made some particularly obscene comments concerning Parra and
the latter's husband. - Weingarten and Noon were attracted by the noise, came
over and told both Fernandez and Parra to behave themselves and stop quarrel-
ing. Parra told Weingarten that if Fernandez did not stop aggravating her she
intended to quit her job. Weingarten told Fernandez that she would have to
stop quarreling with Parra or Weingarten would discharge her. Noon at 'the
time also told Fernandez that she would have to work and produce results or
that he would discharge her. Fernandez was evidently apprehensive concerning
the threat of Weingarten to discharge her because Fernandez asked Weingarten
before leaving for the day if she should return to work on the following morning.
Weingarten said that she had not been discharged and told her to return to
work on May 19.
Upon returning to her home on the evening of May 18 Fernandez found a letter
requesting her to report to a medical clinic for a physical -examination on May
19, 1942.'0 On the morning of May 19 Fernandez requested a neighbor to call the
respondent's office to report that she would be absent for the day. Mildred, the
pay roll clerk who received the telephone call, testified that he understood the
message to be that Fernandez was ill. Mildred informed Forelady Weingarten of
the call and testified that she thereafter told the, person on the telephone to request
Fernandez to return to work on May 20.
Fernandez testified that she did not go to the plant on May 20 because her
sister, Stella Rodriguez also an employee of the,respondent, telephoned her on
the late afternoon of May 19 and said that Weingarten had requested Rodriguez
to tell Fernandez not to return to work until Weingarten sent for her. Concerning
these incidents Weingarten testified that she had not spoken to Rodriguez con-
cerning Fernandez until May 20, 1942 when she asked Rodriguez what was wrong
°Santos had attended a union meeting with Fernandez and other employees and signed
an application card for membership in the Union.
10 Fernandez' husband was afflicted with tuberculosis. " Fernandez was given two medical
examinations a yearras ' a' precautionary measure because of the above illness of her hus-
band. These examinations did not' concern ' her employment by the respondent.
BARDO,N OF HOLLYWOOD 1069
with Fernandez. Rodriguez replied that Fernandez was ill . ) Weigarten said
that she then told" Rodriguez that since that was the case Fernandez should re-
main home until Monday, May 25. Rodriguez testified concerning only one
conversation with Weingarten during this week. She said that on or about
Wednesday, May 20 Weingarten told her to tell Fernandez to remain away until
Monday, May 25. When 'it is considered that the respondent's clerk had told
the person who called respondent's office to inform Weingarten that Fernandez
would be absent on the 19th and that this person had been told to ask Fernandez
to return to work on Wednesday the 20th, Weingarten's version of the above inci-
dents appear to the undersigned to be more credible than Fernandez' testimony
and he accordingly finds that the respondent expected Fernandez to report for,
work on May 20, 1942.
Fernandez did not report for work on May 20. On May 21 she went to the
office of the Social Security Board to ask for help and assistance in securing
another job. The clerk in this office with whom she had talked telephoned to
the respondent's office. The respondent told the clerk at the Social Security Board
that Fernandez was still on the respondent's pay roll but was temporarily absent
from employment because of illness. After leaving the office of the Social Security
Board Fernandez went to the respondent's plant to see Slate. Fernandez, in
substance, testified that Slate reprimanded' her for going to the Social Security
Board and also said that Slate told her that she had caused him a lot of trouble
by fighting with Parra and by organizing employees in the plant. She testified
further that she denied she had attempted to organize the employees, but had
joined the Union herself, that she asked him who was now teaching the other
operators how to do the work, and if she was going to get her job back. She
said that Slate told her he intended to give her job to some one,else who would
make the girls work faster. Slate in his testimony denied that the conversation
was in accordance with Fernandez' version, said he had not mentioned union
activities, but said she had criticized him for. preventing her from getting assist-
ance at the Social Security Board. Slate then told her that she could come in to
work, on the following morning, Friday, May 22. Fernandez said that since
production- in the plant was low it might be better if she waited for work to pile
up and come in on Monday. Foreman Noon was passing by at the time and Slate
asked him if it would be satisfactory for Fernandez to return on Monday, May 25
and Noon replied that it would be. In view of the offer of the respondent to give
Fernandez work on Friday, May 22 the undersigned concludes that Slate's version,
of the above conversation is credible and true.
Fernandez testified that when she went to the plant on the morning of May
25, she walked into Noon's office and asked him if she could work, that Noon
told her that he had no work for her, whereupon she left the plant Noon
denied that Fernandez had appeared in his office on the morning of May 25
or that he had seen her during the entire day. Slate testified that as he was
going through the plant on the morning of May 25 be noticed that Fernandez
was not working and asked Noon where she was, that Noon told him that she
had not appeared for work'whereupon Slate told Noon to give her job to
someone else It is significant to the undersigned that Fernandez should
have gone to Noon's office on Monday, May 25, rather than to proceed to her
work table There is no other testimony in the record that Fernandez had been
seen at or near the plant on the morning of May 25. In view of the above
testimony the undersigned concludes that Fernandez did not appear at the plant
on -this morning. ,
On June, 1, 1942, a week later, Fernandez returned to the plant to ask Noon
for work. He replied that since -she had not returned, to work on May 25
according to their earlier understanding he was discharging her -
1070 ' DECISION S OF'NATLONAL LABOR RELATIONS BOARD
From the above it is conceivable that Fernandez' reasons, for remaining away
from work on May 20, for not coming to work' on May 22, when accorded an
opportunity to work and for failing to report for work on May 25, 1942, after
telling Slate that she was coming back may have been due to Fernandez
resentment because of the treatment previously accorded her. However, ac-
cording to the evidence, Fernandez failed at any time to indicate 'that site
intended to terminate her employment. The evidence shows that'she definitely
stated that the respondent afforded her no opportunity to work on May 20
or May 25, 1942, which testimony the undersigned found above to be incredible
and not true Although the circumstances surrounding Fernandez discharge on,
June 1, 1942, are not free of doubt, a consideration of all the evidence has failed
to convince the undersigned that her discharge on June 1, 1942, was based upon
her membership or activities on behalf of the Union.
2. The discharges of Elias and Skinner in February 1942
(a) Mary Elsas
The complaint alleged that the respondent discrnuuaatorily discharged Elias
on or about February 10, 1942, and later reemployed her on or about May 20,
1942, with prejudice, however, to her rights and privileges as an employee
Elias commenced, her employment with the respondent in August 1940 and
.was regularly employed as a blind-stitch-machine" operator until her discharge
on February 10, 1942. She worked on a piece-rate basis. Her average earn-
ings were approximately $25 to $26 per week at a time when the minimum rates
were 40 cents per hour or $16 per week. It clearly appears, therefore, that
Elias .was a competent employee and the respondent did not deny it.
On February 4, 1942, Noon, as an agent of the respondent, accepted service
of a, writ of execution which writ had been served for the purpose of attaching
the wages.of Elias Shortly after receiving the writ, Noon held a conversation
with Elias, as follows :
Look, Mary,-We have a garnishment here against you, and if Mr Slate
ever found out that there was any garnishment-he wouldn't stand for it
'He is going to raise the devil with me, or with somebody, you know, so please
go and straighten this thing out before Mr. Slate finds out.
,According to Noon :
She [Elias] said she'll straighten. or she'll try and straighten it out-and I
suppose she did.
Elias testified that Noon and Weingarten were sympathetic concerning the-matter
and told her where to go and what to do to arrange some plan of settlement
Elias left the plant for a few hours on the day the writ was served, and apparently
entered,into some ,arrangement with her creditor concerning payment of the
judgment. Obviously Elias must have, informed Noon or Weingarten of the
arrangements made by her, because later that day she received her entire check
for wages previously earned.' There is no evidence that the respondent was
otherwise inconvenienced by the service of the writ other than as herein stated.
On February 6, Elias signed an application card for membership in the Union,
presumably at her home,'as other evidence discloses that this was the 'general
method of organizing followed by the Union at this time ' On February 10. 1942,
"A blind stitch machine is a sewing machine so designed that the stitches, are locked lu
the,material sewed so that the stitching is not visible on the exposed face of the goods.
32 February 4; 1942 fell on Wednesday , the regular pay day in the plant.
P
BARDO, OF HO,l1LYWOO,D- - 1071
she went to lunch at a nearby restaurant with Skinner, Alcarez and another em-
ployee known as "Pancho " While the group was eating lunch together,- Skinner
asked Elias if the latter had requested the union organizer to call upon Skinner.
Elias replied that she had done so and inquired if Skinner had joined the Union.
Skinner replied that she had. Elias then stated that she had also joined. Elias
said that after returning to the plant after lunch she saw "Pancho" who was very
friendly with Forelady Weingarten and Foreman Noon talking to Weingarten
and that when "Pancho" saw Elias looking at them, she said "I am not telling
her anything . I am just discussing my home affairs with her." As found below,
Foreladv Weingarten on March 1, 1942, admitted to Fernandez that Elias had
been discharged on February 10 because she was trying to organize the employees.
Slate testified that on the morning of February 10, 1,942, he saw the writ of
execution above mentioned lying on Mildred's desk and inquired about it. Mildred
told him what it was and told him that it concerned Elias. Thereafter Slate is
took the writ to Noon and asked him :
Why do youlallow anything like this to occur in our plant? You know what
this means. You will be subpoenaed to go to court and -you will- have to
-peed your time, or maybe I will have to go, or we will have to get an
attorney I don't want anything like that in this plant You get rid of
this girl.
Slate, in his testimony, definitely stated that the service of the writ was the sole
cause for the discharge of Elias, and that when he ordered her discharge he had
no knowledge of her union membership or activities until the Board notified
him that an unfair labor practice charge had been filed by the Union concerning
her discharge ii Following Slate's instructions to Noon to discharge Elias, Noon
told Weingarten to discharge her On February -10, 1942, at,about 4: 30 p. m.
Weingarten walked over to Elias and told her that she was sorry but that she
had to discharge Elias as Slate had seen the garnishment and knew about the
telephone calls and had ordered that Elias be discharged.
The record shows that the respondent employed approximately 140 operators
in the 'plant. Weingarten testified that prior to the Elias' matter no other
employee, had ever had his wages garnisheed or attached by a creditor. This
testimony was not contradicted, but the undersigned finds it to be almost incred-
ible iince the plant had been operated by the respondent for 15 years. The evi-
dence disclosed that no rule had been established in the plant providing that
surnmary discharge would follow the service of a writ of garnishment or attach-
ment.
Fernandez testified that on or about March 1, 1942, she had asked Weingarten
what had happened to Elias and that Weingarten replied that Elias had been
11 Slate also stated in his testimony that at the time he inquired about the writ Mildred
had also told him that Elias had been receiving a large number of telephone calls which
took up much of her time in writing memorandums and taking them bark to Elias in the
plant . Before Slate testified, the respondent's counsel had offered other evidence tending
to show that Elias quarrelled with other employees which necessitated the moving of her
machine on 2 or 3 occasions ; that she ,engaged in , iahd,encouraged other employees to,engage
in, unnecessary conversation which slowed down production ; and that on several occasions,
Elias had remained away from work and failed to report Ito her supervisors that she would
be absent Elias admitted that , on one occasion , another employee had threatened to leave
her employment unless Elias' machine was moved to another shaft, and that thereafter it
was moved , but she denied the other alleged derelictions. The record fails to show that
at the tunes the above-mentioned incidents occurred that they were tieatcd as seiious by
the respondent Also in view of Slate's testimony that the sole ieason foi her dischaige
was the service of the garnishment, the above testimony would be immaterial.
11 His 'testimony concerning his lack of knowledge , of Tier union activities is contradicted
by the testimony of Weingarten below
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged for attempting to organize the employees, and passing out union cards.
Weingarten admitted having a 5conversation concerning Elias with Fernandez at
or about this time, but testified that she merely told Fernandez that Elias had
been discharged because of a garnishment and denied that she had told Fernandez
the discharge had been due to union organizational activities. There is no
testimony by other witnesses tending to corroborate the version of either Fer-
nandez or Weingarten concerning this conversation. However, when it is con-
sidered, as found above, that Weingarten had, on or about February 20, induced
Fernandez to aid Weingarten discourage union activities ; that Fernandez by
reason thereof had circulated the petition on February 20, 1942, which afforded
Slate an opportunity, to make his anti-union speech on the same day ; it would
seem probable that Weingarten, believing Fernandez' sympathies to be with the
respondent rather than with the Union, would be inclined to disclose to Fernandez
the real reason for the discharge of Elias 15 A consideration of all of the evidence
in the record has convinced the undersigned that Fernandez' version of the
above conversation with Weingarten is credible and true. It likewise explains
the harsh and unusual treatment accorded Elias concerning the garnishment.
It must be determined whether the respondent discharged Elias, for the
reason that her salary had been attached or because of her union membership
and activities.
As above shown, no rule had ever been established in the plant that service
of a writ of garnishment or attachment would result in summary discharge of
an employee involved in such proceedings. It would seem inconceivable that an
employer would discharge the first employee unfortunate enough to become
involved in such proceedings, especially where the employee concerned is shown
by her record to be competent. The employer in, such a case would ordinarily
investigate the circumstances. Had the respondent here done so, he would have
learned that the employee had arranged to pay off her obligation. In the
absence of a rule that service of a writ of garnishment would be cause for
summary discharge, Slate afforded her no opportunity to explain the circum-
stances or defend herself.16 Nor did he, according to the evidence, make inquiry
of Noon concerning the status of the proceedings on February. 10, 1942 before
ordering her discharge. Under the circumstances the manner in which Elias was
discharged contributes to the conviction of the undersigned that Elias received
special treatment which ordinarily would not be accorded a competent employee.
A consideration of the above together with a consideration of all of the
evidence in the, record has convinced the undersigned that Elias was discrimina-
torily discharged on February 10, 1942 because of her union activities.
D. Nellie Skinner
The, complaint alleged that,the respondent discriminatorily discharged Nellie
Skinner on or about February 19, 1942; and thereafter reemployed her on or
about May 20, 1942, with prejudice; however, to her rights and privileges as an
employee.
Skinner was first employed by the respondent as a learner on April 7, 1941.
During this period of her employment she received as wages 25 cents per hour
or $10 per, week. After 8 or 9 weeks she, received earnings of approximately
$14 per week as an, operator until a change in minimum rates was effected.
Shortly thereafter the minimum rate was increased to a base rate of 40 cents
is It appears below that Fernandez did not sign a union application card until March 30,
1942.
18 Cf. In the Matter of Polaon Logging Company and Brotherhood of Railroad Trainmen,
40 N. L. R. B. 736.
BAR 'DON't OF , HODLYWOOD- " 1073
or. $16, for a 40-hour week.17 As an operator Skinner received, bundles con-
taining pieces of material which she processed into pockets for shirts., Other
bundles contained both collar and pocket parts. During the early term of her
employment it developed that her piece rate earnings while working on bundles
containing both collar and pocket materials were lower than when she worked
on bundles containing pocket parts only. Thereafter, , Skinner was not re-
quired to take any more collar work. For the last 7 or 8 months prior to her
-discharge on February 10 her work was confined to the pocket operation. She
generally was paid $16 per week, except for a short period during 'September
and October 1941 when her weekly earnings ran from $19 to $23 per 'week.
This was at a time when the respondent was manufacturing a special type of
shirt which is no longer manufactured in the plant.
Skinner joined the Union by February 10, 1942. On February 10 she was
eating lunch in a restaurant with Elias and other employees on the occasion
discussed above when Skinner and Elias stated in the presence of other employees
that each of them had joined the Union.
On February 17, 1942, Kuhlman, the union representative, and an organizer
for the Union named Genovese were circulating union literature near the entrance
to the respondent's plant. Skinner testified that on this occasion she stopped,
asked Kuhlman how her organizational work was progressing, took one of the
union circulars, then turned away from Kuhlman to enter the plant. At this
time she noticed Foreman Noon standing in the door of the plant about 3 feet
away. She went into the plant and proceeded to her place of work. Noon when
testifying denied that he had any recollection concerning such an incident. He
further testified that he frequently left the plant to attend to business matters
and that the incident as testified to by Skinner might have happened but that he
had no-recollection of having seen Kuhlman or Skinner under the circumstances as
above related by Skinner. No other witness testified concerning this incident.
In view of Skinner's testimony above the undersigned was not convinced that
Noon had seen Skinner taking union literature I from Kuhlman or that he had
overheard the conversation which Skinner testified had taken place between
Kuhlman and Skinner, but since Weingarten as found above had learned of
Elias' union affiliation it is a fair inference that she also knew that Skinner had
signed an application card in the Union prior to her discharge. Skinner testified
that shortly before the end of that same day the following, incident occurred :
... before quitting time, before she [Weingarten] went back and made out
my check and all,-I went over to get some thread. Before that we girls
could go and get any amount of thread we wanted, because we knew where
it was. And I went over and I called her [Weingarten], she, was'standing
up by a bundle of coats as though she was trimming the thread off them,
and I called her and she didn't ,seem to hear, so I raised my voice a little
louder; and she came over and she said, "Skinner, what is the matter with
you?-Can't you wait?" ' '
Following the above conversation, Weingarten came up to Skinner and handed
her a check for her'current wages and discharged her. According, to Skinner's
testimony, a conversation between them occurred, as follows :
Miss Skinner,-I just can't stand this confusion any more. I, [Skinner].
said, "Well, Lillian, what seems to be the trouble?" and she said, your,sing-
ing and your whistling and your hollering at me the way you have has got
me all upset, and I just can't stand it any more.
' 37 The minimum rates above mentioned are rates established by State law. It , appears
in the evidence that changes' were made ' in 'these rates ' shortly after Skinner began her
employment but the record fails to disclose the exact dates when the changes were
effected.
1074 DECISIONS OF NATIONAL - LABOR , RELATIONS BOARD
Weingarten's verson of the conversation at the time of the discharge was,
as follows :
A. I told her-I call her Skinner, you-I don't, call -her Nellie. I told her,
"Skinner, I am going to fire you. I am firing you tonight." She says,
"Why?" I said, "Well, you don't produce no work. You sit and sing all
day long. I have told you many a time, I told you that the girls were
going to Mr. Slate, but you didn't pay any attention to me, and it is getting
onto my nerves already." And she says, "Well, it isn't that, Lillian. It is
because of the Union." And I didn't even know if she belonged or not.
A consideration of that conversation preceding Skinner's discharge and the
version of both Weingarten and Skinner concerning the reasons stated by Wein-
garten for the discharge is convincing to the undersigned that Skinner's boister-
ous conduct was the basic reason for the discharge.'$ Skinner's union activities
were not outstanding, but the undersigned is convinced that the respondent had
knowledge that she had affiliated with the Union prior to her discharge.
is The respondent offered other testimony most of which was contradicted for the pur-
pose of supporting its contention that Skinner was incompetent Weingarten testified
that Skinner spent much time talking with other employees which prevented both from
performing as much work as otherwise they might have accomplished. She also said that
Skinner's habit of singing and whistling loudly while working was disturbing to other
employees some of whom had complained to Weingarten that if she did not make Skinner
stop they would go to Slate direct with complaints Weingaiten said that since August
1941 she had reprimanded Skinner frequently concerning this habit and at one period
lasting approximately 2 or 3 weeks she had reprimanded Skinner as often as five or six
times per day. Weingarten further said that Skinner visited the washroom too frequently
and spent too much time in it away from her work. She said that on or about the day
of her discharge she had "timed" Skinner while the latter was in the wash room and
mentioned that Skinner remained there some "10 to 15" minutes. When Skinner returned
from the wash room Weingarten said she told her, "Skinner, if you take less time in there,
maybe you could at least ' make your money," and that Skinner replied : "What do I give
a damn? You have to pay me any ways." Weingarten, said that she reported this inci-
dent to Slate and told him that she would like to discharge Skinner. According to Wein-
garten's testimony, Slate then checked the production records and after checking them
Slate asked Weingarten why she had'kept Skinner on the pay roll as long as she had.
According to Weingarten, Slate then said, "All right, go ahead and fire her." It is sig-
nificant that - although Slate was a witness he gave no testimony in support of Wein-
garten's testimony concerning this last incident. Skinner denied in her testimony that
she had had any such conversation with Weingarten. A consideration of the above
has convinced the undersigned that the denial of Skinner is credible and true.
Skinner in her testimony said that she had never been reprimanded or criticized because
of low production and that nothing had ever been said to her concerning minimum rates.
She admitted that her earnings had been low when,given bundles requiring performance
of both the pocket and collar- operations and that her earnings during her employment
seldom exceeded the minimum rate paid her. The evidence in the record tends to show
that while most of the operators on either the pocket or collar operation ordinarily per-
formed both operations, all of them did not.
Skinner admitted that she may have visited the wash room more frequently than some
of the other employees but said that she did not remain away from work unnecessarily.
A consideration of evidence as a whole shows this contention of the respondent to be
unjustified.
Skinner also admitted that she sang and whistled frequently in the plant while working
iind tliat she had been reprimanded for it on•several occasions by Weingarten . Skinner
further testified that Weingarten had failed to impress upon Skinner that the latter's
habit of singing, and whistling was annoying to Weingarten but Skinner admitted that
on a few occasions Weingarten had said to her, "Skinnei,,-If you don't stop this singing
and whistling, the way you do,-the girls are all going to be nutty." Skinner also testi-
fied that on some of-these occasions, Weingarten after reprimanding her for annoying
other employees had further stated "not that I care, for may part, but,-It is for the
girls " Skinner testified that after being reprimanded by Weingaiten for singing and
whistling she would stop for a few hours and then unconsciously begin to do it again.
BARDON OF HOLLYWOOD 1075
In view of all the evidence and the contention of the respondent that Skinner-
was an unsatisfactory employee, it is-difficult for the undersigned to understand
why' she"was retained for over 10 months as an' employee While the circum-
stances surronudiiab' Skinner's dischrgge on February 17,• 1942. are not free of
doubt;" from thF evidence as a whole the undersigned is not convinced that Skri-
ner was discharged on Febriuny 17, 1942, because of affil iation with or activities
on behalf of the Union. _
3. Discrimination as to Elia;` and Skinner :after their reinstatement
(a) Notices . ' ' ' '
Prior to May 15, 1942, the Union had' filed charges at the Regional Office of
the Board that Mary Elias, Nellie Skinner and Frankie-Deming" had been dis-
charged by the respondent. because they had engaged in'tlnion activities.
On or about May 15, 1942, counsel for the respondent conferred with the Re-
gional Director of the Los Angeles office of the Boaid concerning steps the re-
spondent night take to stop the running of a hack-pax award in the'event that
the Board should later-decide to issue a complaint. hold a hearing and' thereafter
find that the respondent had violated the Act. The Regional Director, advised
the respondent to offer reemployment to the discharged employees and 'to post
a notice on the bulletin board in its plant, as follows.
NOitcE
BAR isc or ITot Li wo,au, recognizing the right of .its employees to self-
orgamz .itioaa. to fora. loci, or assist labor oig:naizations, to h: again collec-
nvely through representatives of thcii,choosnig, and to engage ill concerted
.1ctivitics, for the purpose of collective havgainiug or other mutual aid or,
protection, as guaranteed in Section 7 of the National Labor Relations Act,
states that it and its officers and agents:
1. Will not in any manner interfere with, restrain or coerce its employees
in the exercise of the above rights
2 Will not discourage membership in :lily labor organization of its em-
ployees by discharging or threatening to discharge any of its employees
for joining oa :assistnag :aiiv lnhor organization of its employees -
3 Will not an any other manner disciimimate against any of its employees
in regard to hire or tenure of employment ur any term or condition of
employment for Joining or 'assisting any labor organization of its em-
ployees. o r; ° ,
„ . ; , B.AEDON OP HOLLYWOOD
By S S. SL A rt,.
MAY 15, 1942 ' -
At this same conference the i espondent also stated to the Regional Director that
the woik production ol'soine of the employees fell below the California minimiun
wage rntes Be asked what piocedure to adopt in order to avoid the prosecution
of changes that discharges bases upon a tailnae of employees to earn,the mininium
rates were nni'nii' Inhor prae?ices within- the nic:niing of the Act ' The Regional
Dn-eetor suggested the posting of the following:
_At the close of the Beni (1 a en se the undersigned granfed i% ithotit obleetion the Board's
nwtioii to disnust the atlo,:ihon^ in the corn plaint concerning Frankie,Deming -
521247-4 a-i of 48------6i, '
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No i ICE
Effective today all girls on,piece work that do not earn within $2 50 of the
weekly minimum wages according to Federal and State Minimum is [sic]
subject to dismissal without notice.
BARDON OF HOLLYWOOD
S. S SLATE
Copies of both of the above'notices were posted on respondent's bulletin board iii
the plant on or about May 18, 1942, and have remained posted until removed to
exhibit at this hearing . On or about May 18, 1942 the respondent mailed letters to
Elias, Skinner and Deming These letters read as follows :
The undersigned, Baidon of Hollywood, does hereby offer to re-employ
and reinstate-each of you You are requested to report to work immediately
upon receipt of this notice.
You are further advised that the,undersigned intends to and will immedi-
ately post upon its bulletin hoard a notice on the.form provided by the
National Labor ]Relations Board to the effect that it will not in any manner
interfere with, restrain or coerce its employees in the exercise of the rights
guaranteed them by, the National Labor Relations Act; that it will not
discourage membership in any labor organization of its employees by dis-
charging or threatening to discharge any of its employees for joining or
assisting any labor organization of its employees; and that it will not'in
any other manner discriminate against any of its employees in regard to hire
or tenure of employment of any term or condition of employment for joining
or assisting any labor organization of its employees
The undersigned specifically denies that it has engaged in or that it is now
engaging in any unfair labor practices within the meaning of Section 8, Sub-
sections 1 and 3 of the N L R A, or that it has interfered with, restrained
or coerced any of its employees in the exercise of the rights guaranteed in
Section 7, of'said Act, in violation of Section 8, Sub-section 1 thereof, or that
it has in any other manner violated any of the terms or provisions whatsoever
of said Act
The undersigned specifically denies that your employment was terminated
because of membership and activities in behalf of any labor organization and
specifically denies that you were in any manner disuiminated against by
reason of union membership or union activities. The foregoing offer to re-
employ and reinstate you and to post the notice hereiibefore referred to is
made without 'in any manner admitting.or conceding, that the undersigned
has been guilty of any unfair lal5or practices whatsoever, or of any violations
of the National Labor Relations Act, and is without prejudice to any and all
rights, ' claims and defenses that the undersigned may have, and is without
admitting that any of the charges heretofore made by you or any of you.
are true.
Very truly yours,
BARDON OF HOLLYWOOD
By S. S SLATE
In, response to' the above letters Elias and Skii ner returned to work at the
i espondent's plant on,May 20, 1942.
b Ma) y Elias
On May '20 after Elias had been reinstated , she was assigned to the blind
stitching operation , which was similar to the work she had been doing prior
BARDOX OF HOLLYWOOD 1077
to her discharge on February 10, 1942. Elias prior to that discharge had per-
formed substantially all of the blind stitching operations on coats other than
blind stitching work on pockets This latter operation had been performed by
another operator named Gleason and had represented only a small percentage3
of the blind stitching work. Gleason was a versatile operator skilled on many
types of machines. Previous to Elias' discharge oil February 10, the major por-
tion of Gleason's time, was spent on• other types of operations arid performed
on machines other than blind stitching machines Before February 10, Gleason
did her blind stitching work on a Lewis machine, which had been previously
prepared so that it could be used by Gleason, while Elias performed her writ-
on a• United States machine. When Elms was reinstated on May 20, 1942;,
Gleason was working on the United States machine and Elias was assigned C'
the Lewis. The United States machine was driven from a faster shaft than
the Lewis and consequently an operator could earn more money on a piece rate
basis than she could in the same tune on the Lewis machine. Forelady Wein-
garten admitted that an`operator could earn from 15 to 50 cents, more per day
oil the United States machine.
The evidence shows that the period from March until June was a slack season
in the coat, department Forelady Weingarten and Slate testified that because
of a change in manufacturing methods, some of the operations which Gleason
had previously performed had been curtailed or abolished so that it became
necessary for the respondent to give Gleason more of theliblind stitching work
than had been formerly assigned to her Weingarten afso testified thkt in
order to continue to give employment to Gleason in May after Elias returned-
she had been rbliged to divide the blind stitching work between Elias and
Gleason After Elias returned both Elias and Gleason were employed on a part-
time basis. •
Elias found the Lewis machine to be in a very poor operating condition and
reported it to Foreman Noon. Noon ordered Alti, respondent's machinist, to
repair it. Alti spent considerable time in testing and adjusting the machine on,
May 20 and succeeded in getting it to function somewhat better than it had
before he worked on it Thereafter Elias continued to complain about the
machine to Alti Alti testified, that on testing it on several occasions over al
period of 3 or 4 days lie thought the machine was in a fair condition and that
ut first he belies ed that Elias was unduly critical. However, he admitted that
after working on it on numerous occasions over a period of 3 or.,4 days he
discovered that a needle guide was missing After securing a replacement part,
he installed it and thereafter the machine was operating. satisfactorily. Alti
also testified that he had failed to discover the defect responsible for the poor
operating condition until either the day before or the day after May 27, 1942.
May 26 was the last day Elias worked in the plant
Foreman Noon and Forelady Weingarten both testified that the machine h,la7
been satisfactorily repaired on May 20, 1942. Noon further testified that Elias
had told him that it was working satisfactorily in the late afternoon of May-
20. In view of the testimony of Alti, who impressed the undersigned as being
an exceptionally frank and truthful witness, lie finds that this machine had not
,been placed in a satisfactory operating condition until at or about the time Elias
terminated her employment
Elias worked on May 20 and Dlay 21. She was laid off for lack of work until
May 25. She returned and worked on May 25 and 26 and was again laid off
until May 29. On May 27 when Elias called at the respondent's office for her
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1 `
pay check foi her work on May 20 and 21, 1942, she was given the following
notice:
MAY 27, 1942
?Hiss \'I,xRY ECIAS'
This is to inform you that according; to your,piece rate earnings for the
17 honrs,^ou worked last week; you made $3.55 The minimum to this
factory is 440 an hour or $748 for the 17 hours you worked If you can
_not come np to this amount by next week, we will be forced to let you go
BARDON O HOLLYWOOD
After'reading this notice Elias'decided to quit. She returned to the plant on
or, about May 28, 1942, and told Noon that'she was leaving and wanted to get
some personal belongings Noon asked her: "What's the matter :nary'>" She
replied.-"I quit," whereupon lie said, "Ail right, go ahead and quit, then."'
When it is considered that Elias had been ofteied reinstatement by the respond-
ent after tit earlier discharge which was found above to be based on her union
activities, it is clear that the respondentt upon her ietuin to work was under r
.duty to assign her to her founei job or to offer, her substantially equivalent
employment While the respondent reinstated her to her former work, she was
assigned to apother machine winch the respondent knew to be a slower maclniii
than that wluch's1ie had previously operated and that her earnings would be
snbstantia]lh reduced Likewise, the machine was to poor operating condition
Although Foreman Noon and Forelady Weingarten testified that the machine was
repaired and placed in good condition as Coon as they were informed by Elias
that it was out of order, tile'evidence iii, the record is to'the contrary Other
evidence in the tecord shows that work assignments were made by either Noon
,or Weingarten. Since the respondent knew Elias to be a very competent operator
it is significant that they did itot seek the cause of bet low production for that
17 hour pet hod. Nevertheless, without making an investigation concei Ding the
circumstances, the respondent served upon Elias the notice mentioned aho^e.
Under the above cir cumstances the tei inination of her employment by Elias
was not unreasonable. The Board has held that whenever any substantial change
III the status of an employee is made upon a discrtnnnitoty basis, the refusal
of the employee to accept the changed status cannot be considered as a resigna-
non front o ii iloyment" The, undersigned accotdingl^ thuds in new of the cir-
cumstances ,urronndnig the reemployment of ]Etas in the plant in llay, that the
terinin:iti in of her cinplo menr was tint:nnount to a discharge
The undersigned finds that the respondent has discriminated *in Iegard to hire
and tenure of employment of Jeu•y Elias, thereby discouraging i ieiiibership iii
the Union.
'Vellie Skinner
oil or about Mayv19, 1942, the respondent also sent Skinner a letter offering
het rentstatentent, this letter being similar in form-to the one mentioned above
us having been sent to Elias. -
()it h\Iay 220,,1942, Skinner repot tell to Work Fur several months prior to her
•dtsc in rte in February I, Ii ppeai s' above. Skinner had been employed tit making
_and setting pockets on shirts A• appears above, when Skinner fitst began to
work foi the enipio>ei as :1 regular operator she had been given two or ,htee
bnudle^ of nlatet utl to be processed into pockets and collars for shirts After
11
n']latira of II"aggoner lielirnnp Compainl, etc :tit([ Interiialtonal Association of Oil Field.
Gas Well. and Re/inci p II orkei. of Amei hell, (i N L It B 7'll Cf Matter of Cloi,e; Fork
Coal Compaq and Distitct 19, Darted Mine A"oikeis,of 4menca, 4 N L It B 202,
,Lnf'q 97 I' (_d) 331
S.ARDO\ OF NOLLIIVOOD 1079
she had worked on these coutbuled operations it developed ' that Skinnei 's produc-
tion oil the Coll r ope : atioil from a p:ece-rate standpoint was lower than her'
earnings were on Ilie pocket oher: ttio:::tnd"that Weingarten relieved her from
undertak i ng any more collar work ' i'hereat i er for the last several 'months of
her emplo}went prior to her d:seharge on February 17 Skinner had been per-
forming the pocket'operation exclusively
On her return on May 20 Wenigai tea gave Skinner mixed bundles contai n ing
both the pocket and collar parts to w oik on At the time Skinner turned ill the
lust two or three completed bundles, Wcing: rten handed her a number of linings
for collies Skinner testified that she told Weingarten that she way not ,Ding
to make aiiy more ciillais and further told her that Weingarten knew from
Skinner 's enIIici experteuce that the latter ea rnings from the costar operation
were unsatisfactory Skinner also complained to Noon Concerning , the collar
work and he told her to tike it up with Weingarten . According to Skinners
tes(nnon^, A \• etagaitell said , and it was not denied . "Well, you will,have to do
it now Don't think you can come rep here and do things the "wa y, you want to-
) oii wilt have to do what i say " Skinner continued with the work and on 'May
21, the follow ing day , she again complained to Foreman Noon concerning the
types of work Weinga rten was insisting that Skinner perform Accoi'$ ing to
her testinionv Noon told hei to continue to work for the balance of the day and
see what she could accaonpirsh
Weingarten testified th.it during this period the work was slow ui coining
through from the cutting room and that it was necess a ry to give all the operators
woiking on the pocket of collar oper :itroits both types of work to complete
Weingarten , however. in her testnnoiiy admitted that another opeiator'named
"\harganet " preferred to work excinsnel^ on the collar operation and'thal
"\larg:u • et" was an exception a nd at thi s little was working,oniy on collars. `t`he
respondent failed to inintsh iii salisl'actory explanation as to why slow produc-
tion in the cutting room required all operators to perform both collar and pocket
operations The respondent also tailed to satisfactorily - explain why the collar
work could he segregated a n d made rep into bundles for one operator while the
pieces uecess : u'y to process into pockets could not likewise be segregated and
given to Skinner as had previously been done
On the nxn Wing of May 22 Skinner was given another mixed bundle containing
parts 1or both pot l:et :ual co'i.ii s and coninienced working on it Before she hall
completed all the operations she took the bundle over to Weingar ten and the
following cialloquy took place
Lillian IAVeingaiitenj . 1 ISkinnerl cannot stand this any longer.-1 ant
tliiongli She ]Wenig.riten] said. Why Skinner , what is, the matter?
I .Skinner ] well, yon did not by to cooperate with ere . and I don't want uiv
mole of it I, lett a beltei job than this one to return here, and I can return
to it.
ShoItly there.itter. according to Skinner's testimony, Noon. who hail overheard
•sonne of the conversations between Weingarten and Skinner. walked over to
them \V'enigarren told Noon what Skinner had just said to her. whereupon
Noon, according to Skinner, -:Ill] that. "If you feel that way about it you mat.
leave" Thereafter Weingarten gathered ill) 'Skinner's work tickets for the,
work she had cornpleti'd'awl took Skinner into the office where she tinned ill the
ftckets nn or der that the pay chef k'nught he drawn for Skinner's w-aga s Skinner
sohsegneiit!v t'ei c inert 'a pan check drawn at the. rate of 40 cents per hour On
February 20, 1042,'Sloto had green the employees a 10 percent rncre.tsC whuli
had increased the' hourly rite on this operation to 44 cents' Sknnizi 'aotiual
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that she had not been paid at the increased rate and returned to the office to
complain. At the time Slate was present in the office and overheard the dis-
cussion between Skinner and Mildred, the pay roll clerk Slate inquired about
the matter. -Mildred told him that Skinner 's wages had been computed at 40
cents pei%-h6tir. Slate,then told Mildred to tear up ,the check and issue one based
alpon a 44-cent rate.
A consideration of the above facts is convincing that Skinner was not reinstated
to her former or substantially equivalent position . Weingarten from past experi
ence knew that Skinner's earnings would be curtailed if she insisted that Skinner
perform both the collar and the pocket operations. Skinner for months previous
to her earlier discharge in February had been given the pocket operation exclu-
sively to perform but upon her return Weingarten refused to assign her to this
operation, despite the fact that she had granted the request of another operator
to work exclusively on the collar operation. Under the circumstances the treat-
ment accorded Skinner was discriminatory following her reinstatement to her
position
The fact that Skinner quit her employment under the above circumstances
cannot be considered as a voluntary resignation from her employment. Under
the circumstances the termination of her employment was tantamount to a
discharg' Further since Skinner had been reinstated following the filing of an
unfair labor practice charge by the Union it follows that the respondent unques-
tionably had kooivledge of her union affiliation during the period of her reemploy-
ment. The undersigned accoidiugly finds that the respondent discriminated in
regard to lure and tenure of employment of Nellie Skinner, during her period of
reemployment iii May 1942', for the reason that she was a member of the Union.'
1V. THE EFFECT OP' Til l', UNFAIR LABOR PRACTICES UPON COMMEn:CE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of tile 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 obstruct-
ing commerce and the flee flow of commerce.
V THE REMEDY
Having found that the respondent has,engaged in unfair labor practices, the
undersigned will recommend that the respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
The undersigned has found that the respondent discriminated in regard to the
hire and tenure of employment of Fernauda Fernandez by laying her off as found
above The undersigned will recommend that the respondent pay Fernandez the
amount of wages she would have received while working for the respondent had
it not been for the lay-off, less her net earnings'- during such period.
zi See footnote 20, sepia
"By "net earnings " is meant earnings less expenses , such as tom transportation, room,
and board, incurred by an employee in connection tin.h obtaining work and «oiking else-
where than for the respondent , which i.ould not hate been incurred but for the respond-
ent's discrimination against him and the consequent necessity of his seeking employment
elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpen-
ters and Joiners of America , Lumber and Sawmill Workers Union, Local 2590, 8 N L R. B
440 Monies received foi work performed upon Federal , State, county , municipal, or
other woik -relief projects shall he considered as earnings . See Republic Steel Corporation
v N L R.B,311U S.7.
BARDON OF HOLLYWOOD 1081
The undersigned has also found that the respondent discriminated in regard
to the hire and tenure of employment of Mary Elias, by terminating her employ-
ment because of membership and activity in the Union, and by further discrimi-
nating against her following her reinstatement. The undersigned will therefore
recommend that the respondent offer to her immediate and full reinstatement to
lier-former or a substantially equivalent position, without prejudice to her sen-
iority and other rights and privileges, and make her whole for any loss of pay
she may have suffered by reason of the respondent's discrimination against her,
by payment to her of a sum of money equal to the amount she normally would
have earned as wages froni the date of the discrimination to the date of the
offer of reinstatement, less her net earnings.'
Nellie Skinner was discharged on February 17, 1942, under circumstances
found above by the undersigned not to constitute a discriminatory discharge for
union activity. As found above however, the termination by Skinner of her
employment on May 22, 1942 was tantamount to a discharge for union activities.
The undersigned will recommend that the respondent offer to Nellie Skinner
immediate and full reinstatement to her former or substantially equivalent posi-
tion, without prejudice to her seniority and other rights and privileges, and make,
her whole for any loss of pay she may have suffered by reason of the respondent's
discrimination against her, by payment to her of a sum of money equal to the
amount she normally would have earned as wages from the date of the discrimi-
nation to the date of the offer of reinstatement, less her net earnings."'
Since the undersigned has found also that the respondent has engaged in other
unfair labor practices, it is recommended that the respondent be required to
cease and desist from interfering with, restraining, and coercing its employees in
the exercise of 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:
i
CONCLUSIONS oF LAIN'
1 Amalgamated Clothing Workers of,America, C. I 0, is a labor organization,
within the iiieaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire . and tenure of employment of
Fernanda Fernandez , Mary Elias and Nellie Skinner , thereby discouraging mem-
bership in the Anialgain , ated Clothing Workers of America , C I 0, the respond-
ent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (3) of the Act.
3 By interfering with, restraining , and coercing its 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 (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 , by discharging Fernanda Fernandez on June 1, 1942, has not
engaged in nufair labor practices within the meaning of Section 8 (3) of the Act
6. The respondent , by discharging Nellie Skinner on or about February 17, 1942,
has not engaged in unfair labor practices within the meaning of Section 8 (3)
of the Act.
23 See footnote 22, supra.
21 See footnote 22, supra
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS
Upon the-basis of theabove hndings of fact and conclusions of law, the under-
signed ,recommends that the respondent,,S,S Slate, an individual, doing business
as B:u'don,of• Hollywood, itsi,of iceis, agents, successors, and assigns shall.
1 ,Cease and desist from.: ,,, ' ..
(a) Discouraging membership in the Amalgamated Clothing Workers of Anier-
ica, C, I. O , or any, other, labor organization, by discharging. laying off, or refus-
ing to-reinstate any of its employees, or in any_ other mannerldisciiminating in
regard to their hire and -tenure of employment, or any tenon or Condit ion of
employment;, , : , •, .11
r
(b) In any other inamner inteifering_.with, restraining; or coercing its ein-
ployees•in the exercise of.the lights to self-organization, to form, jour. or assist
labor organizations, ; to, bargani collectively through representatives of their own
choosing, or to• engage in concerted activities for the purpose'-of collective bar-
gaining or,other mutual aid or-protection as guaranteed in Section 7 of the Act.
2. Toke the following of i'in:itive action which the •undeisigned finds will
effectuate the policies' of the Act:
:;(a)' Make whole Fernanda Fernandez fot any loss of earnings resulting from
the respondent's discrimination against her, by payment to her of it suin of
money equal to that which she would not orally have earned as wages from the
date of such discrimination due to her being laid off from April 30 to'May 15,
1Q42, less her net earnings " during the said period ;
, (b) Offer to Mary Elias and Nellie Skinner, and each' of them,, immediate and
full, reinstatement to her former or substantially equiNaleat position, without
prejudice to her seniority and other rights and privileges ;
(c) Make whole the said Mary, Elms and Nellie Skinner, and each of them.
for any loss of, earnings resulting from the.respondent's discrimination against
her, by payment to each of them of the sum of, money equal to that which she
would not orally have earned as wages from the date of such discrimination to
the date of the respondent's offer of reinstatement, less her net earnings20 during
the said period ; -
(d) Iminediately post notices in conspicuous places in its plant in Los Angeles,
California, and maintain for a period of at least sixty (60) consecutive (lays from
the (late of posting, notices to its employees dating; (1) that the respondent
Will, not engage in the conduct from which it is recommended that it cease and
desist in paragraph 1 (a) and (b) of these recomniendatiois; (2) that the re-
spondent will'take the afhrinative action set fo•tli in paragianh 2 (a), (b). and
(c) of these recommendations: and (3) that its employees may become or remain
members of the Anialgamated Clothing Workeis of America, C I 0., and that the
respondent will not discriminate against any employee because of membership
in or activities on behalf'of that organization.'
(e) File with the Regional Director for the Twenty-first Region within tell (10)
flays from the receipt of this Intermediate Report, a•report in writing setting
forth in detail the manner and form inn, which the respondent has complied with
the foregoing recommendations
It is further recommended that unless oil or before ten, (10) days from the
receipt of this Intermediate Report, the'respondent notifies sad Regional Direc-
tor in writing that'it will comply with the foregoing recommendations, the National
Labor Relations Board issue in order requiring the respondent to take the action
aforesaid. • . . ,
2" See footnote 22 supra
16 See footnote 22, supra.
BARDO \N OF HOLLYWOOD 1083
It is further recommended that the complaint , to the extent that it alleges that
the respondent , by discharging Fernanda Fernandez on June 1, 1942 , discriminated
in regard to the hire and tenure of employment of Fernanda Fernandez , within
the meaning of Section 8 (3) of the Act, be dismissed.
It is -fn rther recommended that the ' complaint , to the- extent that ,it alleges
that, by discharging Nellie Skinner on or about February 17, 1942, the respondent
discriminated in regard to the hire and tenure of employment of Nellie Skinner,
within the meaning of Section 8 ( 3) of the Act , be dismissed.
As -provided in Section 33' of, Article II of the" Rules and Regulations of the
National Labor Relations Boar d , Series 2-as amended, effective October 28, 1942-
any party 'may within fifteen ( 15) days from the (late of the entry of the order
transferring the case to the Board , pursuant to Section 32 of Art icle II of said
Rules aifd Regulatioǹs, file, with the Board. Shoreham Building , Washington,
D, C, an, original and four , copies of a statement in writing setting forth such
exceptions to the.Intermediate Report or to any other part of the record or pio-
ceednng ( including rul i ngs upon all motions or objections ) as-be relies upon,
together with the original and four copies of a brief i n support thereof. As
further, provided in said Section 33, should any party desire permission to argue
orally before the Board ; request therefor must be made iii, writing to the Board
within 'ten (10 ) days from the date of the order transferring the case to the
Board
Dated January'l9, 1943.
r) (
Z ..
HENRY J. KENT.
Trial Exam iner. -'
1-