Colonial Fashions, Inc.

National Labor Relations Board - Board Decisions

Dec 7, 1954

110 N.L.R.B. 1197 (N.L.R.B. 1954)

COLONIAL FASHIONS, INCORPORATED 1197
copy of the Board 's official ballot, altered as described above , tended
to interfere with a free choice in the election .8 Accordingly, we shall
set aside the election of September 2 and direct a new election to
be held.9
[The Board set aside the election held on September 2, 1954.]
[Text of Second Direction of Election omitted from publication.]
s Ibid.
9 As to the Employer 's contention that a simple alteration of a ballot when circulated
with a letter admittedly proper, does not in fact impair an employee's freedom of choice
in an election , we find that such contention affords no basis for departing from the
Allied rule , or for failing to apply it in the present case . Furthermore , we also find
without merit the contention that the application of the rule would be unreasonable in
the light of the lai ge vote against the Union.
COLONIAL FASHIONS , INCORPORATED and INTERNATIONAL LADIES'
GARMENT WORKERS UNION , AFL . Case No. 5-CA-780. Decem-
ber 7, 1954
Decision and Order
On April 12, 1954, Trial Examiner Plost issued his Intermediate
Report in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices and recom-
mended dismissal of those allegations. Thereafter, the General Coun-
sel filed exceptions to the Intermediate Report and a supporting brief.
The Respondent filed no exceptions.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report," the General Counsel's exceptions and brief, and
the entire record in the case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner only insofar as
they are consistent with this Decision and Order.
1. No exceptions were taken to the Trial Examiner's findings that
the Respondent discharged employees Mae Collier, Leuvinia Nicholas,
and Evelyn Rudd on October 21, 1953, to discourage membership
in and activity on behalf of the Union and thereby violated Section
8 (a) (3) and (1) of the Act; and that the Respondent, through
Della Taylor, by threats and interrogation, violated Section 8 (a) (1)
of the Act. We accordingly adopt these findings.
'The second amended charge herein was filed on October 26, 1953, not on November 3,
1953, as inadvertently noted in the Intermediate Report.
110 NLRB No. 193.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Trial Examiner found that the Respondent did not refuse
to bargain collectively with the Union in violation of Section 8
(a) (5) and (1) of the Act. Although the General Counsel does
not agree with this finding, he chose not to except to it because
the Respondent's plant has been permanently shut down. However,
the General Counsel did except to a number of subsidiary factual
findings made by the Trial Examiner in connection with this aspect
of the case. In these circumstances, and without deciding the merit
of the General Counsel's exceptions, we adopt the Trial Examiner's
dismissal of the refusal-to-bargain allegation.2
3. We find merit in the General Counsel's exception to the Trial
Examiner's failure to find that Earl Taylor's statements, coercive
in nature, were attributable to the Respondent and therefore viola-
tive of Section 8 (a) (1) of the Act. The Trial Examiner absolved
the Respondent of any unlawful conduct as a result of Taylor's state-
ment because he found that Taylor was not a supervisor within the
meaning of the Act.
The record shows that Earl Taylor, husband of Forelady Della
Taylor, was the plant "cutter," who cut material to shape before it
was sewn. Although Mrs. Taylor was the immediate supervisor of
the sewing employees, the evidence reveals that Mr. Taylor would
tell the girls which work to do first and would make time studies while
the girls were on the job. On one occasion, he told an employee she
was laid off for a few days. On October 1, 1953, just before the end
of the lunch period, Taylor addressed a group of about 30 employees
in the presence of Mrs. Taylor, and told them that if the Union were
successful in its organizational activities, the Respondent would move
the plant's machinery to another State. The record further shows,.
that on October 19, 1953, in the presence of Respondent' s manager,
Sawitz, Taylor told employees who had walked out on October 16,
that they were refused employment.3
Whether or not Mr. Taylor is a supervisor under the Act, it is
clear that he exercised some managerial authority over employees.
and, for that reason and because he was the husband of Forelady
'T'aylor, he was in a strategic position to translate to subordinate
employees the policies and desires of management.4 Indeed, his coer-
cive statement to the employees are similar to the one made by Fore-
lady Taylor. Moreover, Manager Sawitz, by permitting Mr. Taylor
in his presence to deny employment to certain strikers, made it appear
2 We see no warrant for the Trial Examiner 's characterization as an abuse of the-
Board's processes, Union Representative Schlossberg 's efforts to settle and withdraw the
original charge filed herein.
'This incident refers to the Glass group, hereinafter discussed in paragraph num-
bered 4 (d)
4 Hari rson Sheet Steel Company, 94 NLRB 81, 82, enfd. 194 F. 2d 407 (C A 7) ; Wag-
ner Iron Works, 104 NLRB 445, 446, 462. Sioux City Bi ewwing Co, 82 NLRB 1061, 1063-
COLONIAL FASHIONS, INCORPORATED 1199
to the employees that Taylor was a responsible representative of
management. We accordingly find that the Respondent is also respon-
sible for Mr. Taylor's coercive statement of October 1 and that the
Respondent thereby violated Section 8 (a) (1) of the Act.
4. The Trial Examiner found that the Respondent did not violate
Section 8 (a) (3) and (1) of the Act by discharging the following
employees : Mabel Beasley, Mabel Ellis, Veronica Hagen, Martha
Leach, Millie Lilliston, Mildred Barksdale, Martha Thrash, and June
Fay Leach, herein called the Beasley group, between October 5 and 7,
1953; Bevia Inez McCauley, on October 15, 1953; Anna Crump, Jean
Phelps, Lucy Suber, and Mildred Rogers, herein called the Crump
group, on October 16, 1953; and Lillian Glass, Bessie Bryant, Dorothy
Hamlet, and Mary Clary, herein called the Glass group, on October
19, 1953. We find merit in the General Counsel's exceptions to these
findings of the Trial Examiner.
The background facts surrounding the above discharges are, in
brief, as follows : The Union began organizing the Respondent's
employees early in September 1953. On October 2, 1953, the Union
notified the Respondent that it represented more than 90 percent of
the employees. On or about that date, as found by the Trial Examiner,
Della Taylor, a supervisor, told a group of employees that if the
Union were successful in its organizational efforts, the Respondent
would close the plant. The Trial Examiner also found, and we agree,
that Della Taylor unlawfully interrogated an employee as to her
union membership. On October 23, 1953, the Respondent responded
to the Union's letter of October 5, stating in part, "we feel we cannot
recognize your Union as such, unless it is certified in the manner pro-
vided by law as the collective bargaining representative." Meanwhile,
during the period between these letters, the 17 following complainants
were separated by the Respondent.
(a) The Beasley group: Between October 5 and 7, 1953, Della
Taylor told these eight employees, who were working on blouses, that
they were being laid off because of lack of work and that they would
be recalled. All of the girls were members of the Union and each of
them openly passed out union literature in front of the plant or solic-
ited other employees in the plant to join the Union. Insofar as the
record shows, they were the only employees laid off. They were never
recalled. The Trial Examiner found, as contended by the Respond-
ent, that these employees were discharged and not recalled because
of lack of work and not for antiunion considerations. We do not
agree.
The Respondent sought to justify its action with respect to these
employees by adducing evidence to the effect that the production of
blouses had been almost completed at the time of the layoffs in ques-
tion. But this evidence is not entitled to the controlling significance
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given to it by the Trial Examiner. The record shows that the com-
plainants, who were sewing machine operators, were qualified to per-
form sewing operations on other articles of apparel which were then,
and continued to be, in production. Indeed, the record shows that
on September 20, 1953, the Respondent advertised for experienced and
learner sewing machine operators and that, between October 8 and 28,
1953, the Respondent actually hired 13 sewing machine operators to
do the same general type of work formerly done by these complainants.
At the hearing, the Respondent was unable to furnish any satisfac-
tory explanation for hiring new personnel instead of recalling the
complainants.
Under all these circumstances, including the timing of the layoff,
the Respondent's animosity to the Union as evidenced by the coercive
conduct of Mr. and Mrs. Taylor and by the other unlawful discharges,
including those hereinafter detailed and those found by the Trial
Examiner and not excepted to by the Respondent, we find, contrary
to the Trial Examiner, that the Respondent discharged and failed to
recall Beasley, Ellis, Hagen, Martha Leach, Lilliston, Barksdale,
Thrash, and June Fay Leach because of their union activity in vio-
lation of Section 8 (a) (3) and (1) of the Act.5
(b) The McCauley discharge: McCauley was hired on October 14,
1953, and was fired on the following day by Della Taylor. The Trial
Examiner found no discrimination as to her. We do not agree.
The record shows that McCauley joined the Union on the first day
of her employment; that on the second day of her employment she
was handed a union leaflet outside the plant which announced a meet-
ing for that day; that she took the leaflet into the plant and placed
it on her sewing machine; and that after lunch, upon her return from
the washroom, she saw Della Taylor standing by the machine and look-
ing at the union leaflet. Immediately thereafter, Della told McCauley
that she was no longer needed.
The Respondent contended that McCauley was discharged for ineffi-
ciency and low production. The Trial Examiner accepted this explan-
ation largely on the basis of McCauley's production records introduced
in evidence by the Respondent. However, in so doing, the Trial Exam-
iner erroneously reported that for the 2-day period of her new employ-
ment the Respondent was required under the minimum wage guarantee
to make up a deficit of $11.44, whereas the record shows that the deficit
in fact was $8.87. Moreover, it would appear that the Trial Examiner
failed to give consideration to the fact that the discharge notice was
given in the middle of the second work day, which would reasonably
account to some extent for her low production on that day. Nor does
it appear that the Trial Examiner took into account the fact that
6 See N L R B . v. Cold Sprint/ G?atute Co, 208 F 2d 163 (C A. 8), enfg . 101 NLRB 786.
COLONIAL FASHIONS, INCORPORATED 1201
'McCauley was new on the job and that no production records were
adduced showing the experience of other employees during the first
2 days of their employment. Finally, it is significant that on her first
day of employment McCauley, according to her undenied testimony,
had been told by Forelady Taylor that she "was doing very good."
In these circumstances we, unlike the Trial Examiner, are not able
to give controlling significance to the production records,as indicative
of the real reason for her discharge.
On the other hand, there are circumstances which indicate that
McCauley's discharge was caused by union animus. As found herein.
the Respondent threatened to close the plant if the employees organ-
ized and contemporaneously discharged other employees because of
their union activity. Indeed, McCauley was in effect a replacement
for one of the employees who had just recently been discharged for
union activity. That McCauley was summarily discharged, during
the middle of the workday and immediately after the Respondent
observed a union leaflet on her machine, strongly suggests that she
also was the victim of unlawful discrimination.
We are convinced by the record as a whole that McCauley was dis-
charged not for low production or inefficiency but because the Respond-
ent believed her to be a union adherents Accordingly, we find that
the Respondent discriminated against McCauley to discourage union
activity in violation of Section 8 (a) (3) and (1) of the Act.
(c) The Crump group: At a union meeting held on October 15,
1953, Crump and Rogers were elected cochairladies and Suber and
Phelps were elected copresidents.1 On October 16, before work began,
these four employees went to the office of the Respondent's manager,
Sawitz, and told him that they had been elected to union office.
Sawitz admitted telling the girls that if they are "working for the
union, [they] can't be working for us." According to the com-
plainants, when one of them asked if they were fired, Sawitz replied,
"Yes. Get out and don't go back upstairs." Although Sawitz
admitted that the girls walked out of his office and did not go back
to work, he testified that in response to the query of whether the
complainants were discharged, he replied "you come here to talk
about something. You tell me you are working for the Union. How
could I fire you. I haven't fired anybody." The Trial Examiner
credifed Sawitz and concluded that the four employees went to
Sawitz' office "for the purpose of creating an incident which would
leach to their discharge and being intent on so being discharged they
`jumped the gun' not giving the Respondent an opportunity to dis-
• See N. L. R. B. v. Pacific Mille, 207 F. 2d 905, 906 (C. A. 4), enfg. as mod. 102 NLRB
385.
7 The record shows that colored and white employees worked on separate floors and
that I white and 1 colored employee were elected for each office.
338207-55-vol. 110-77
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge them, if it so desired." The Trial Examiner therefore found
that the four employees voluntarily quit their jobs.
We find no warrant in the record for the Trial Examiner's infer-
ence that the complainants "were engaged in an effort to `entrap' the
Respondent and in doing so `jumped the gun."' Nor do we find
any rational basis for the Trial Examiner's view that they voluntarily
terminated their employment. While Sawitz, as found by the Trial
Examiner, may have meticulously avoided specifically telling these
employees that they were "fired," we believe and find that the intended
and reasonably understood purpose of his admitted statement that
"if you are working for the union you can't be working for us" was
to terminate their employment for unlawful reasons. By this state-
ment, especially when viewed in light of the multiple discrimination
involved in this case, and the threats to close the plant if the employees
organized, the Respondent made it clear that the union activity
of these employees was deemed incompatible with their continued
employment and that they could no longer regard themselves-
because of their union activity on behalf of the Union-as employees
of the Respondent. Any doubt that Sawitz intended to discriminate
against these complainants, assuming the truth of his version of their
leaving, is removed by the fact that after the Respondent was put on
notice by their letter of October 27, set forth in the Intermediate
Report, that they had not quit but regarded themselves as having
been discharged and desired employment, the Respondent took no
action whatsoever.
We accordingly find on the record as a whole that on October 15,
1953, the Respondent discharged Crump, Rogers, Suber, and Phelps
because of their union activity in violation of Section 8 (a) (3)
and (1) of the Act.
(d) The Glass group incident: Shortly after reporting for work
on October 16, 1953, Glass, Bryant, Hamlet, and Clary and other
employees discussed what they would do if their newly elected officers
(the Crump group) were discharged. All of the employees in this
discussion decided that they would walk out. The four complainants,
who worked on the same floor with Phelps and Rogers, approached
Sawitz to learn whether the Crump group were fired, as Phelps and
Rogers had not been at their jobs that morning. The Trial Examiner
found that Sawitz told these complainants that the group left of their
own accord. Apparently the complainants did not believe Sawitz
and, as found by the Trial Examiner, concertedly walked ofd" the job
in protest. Later that day, the four complainants sent a telegram to
Sawitz stating that they walked out in protest of the Respondent's
"unfair labor practices against our four (4) elected officers"; and
that they would report to work the following Monday, October 19.
COLONIAL FASHIONS, INCORPORATED 1203
All four accordingly reported to the plant on that date but were denied
employment.
In dismissing the cases of these complainants, the Trial Examiner
found that their concerted activity, in leaving the plant in protest
over the separation of the Crump group, was not protected because
the latter had not been unlawfully discharged. He therefore sum-
marily concluded that these complainants had also "voluntarily quit
their employment." The Trial Examiner's findings reflect an obvious
and fundamental misconception of an elementary principle of appli-
cable law. Subject to certain exceptions not here involved, the Act
guarantees employees the right to strike for the purpose of collective
bargaining or other mutual aid or protection. Although unfair labor
practice strikers have reinstatement rights superior to those of eco-
nomic strikers, the protected nature of a strike does not depend upon
the presence of an unfair labor practice as a causative factor .8 Thus,
it has been generally recognized that strikes arising over the non-
discriminatory discharge of employees or other economic issues affect-
ing wages, hours, or other conditions of employment, constitute pro-
tected concerted activity.'
There is not a scintilla of evidence to support the Trial Examiner's
ultimate conclusion that the complainants in the Glass group volun-
tarily quit their employment. Rather, we find that the record clearly
establishes, as the Trial Examiner suggested-albeit inconsistently-
that they concertedly walked out because of their belief that the
Crump group had been unlawfully discharged. Irrespective of the
correctness of their belief, we find that this action constituted con-
certed activity protected by the Act.10 In any event, we have found
above that the Crump group was discriminatorily discharged and we
accordingly further find that the strike in question was caused by
the Respondent's unfair labor practices and that the strikers were
entitled to reinstatement on request.
Upon the entire record we find, contrary to the Trial Examiner,
that by refusing to reinstate Glass, Bryant, Hamlet, and Clary when
they reported for work on October 19, 1953, the Respondent discrim-
inated against them so as to discourage membership in the Union and
interfered, restrained, and coerced them in the exercise of rights guar-
anteed in Section 7 of the Act. Whether the unfair labor practice be
deemed a violation of Section 8 (a) (3) or 8 (a) (1) of the Act,
we find the payment of back pay to be the appropriate remedy.
s N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333, 345.
s N. L. R. B. v. Globe Wireless, Ltd, 193 F. 2d 748, 749-750 (C. A. 9) ; N. L. R. B. ♦.
Mackay Radio & Telegraph Co., supra.
10 Firth Carpet Co. v. N. L. R. B., 129 F. 2d 633, 636 (C. A. 2) ; N. L. R. B. Y. Globe
Wireless, Ltd, supra; Kallaher and Mee, Inc, 87 NLRB 410, 412.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Inasmuch as the General Counsel states that the Respondent's oper-
ations have been permanently abandoned, we shall not provide for the
reinstatement of the discriminatees. However, in order to effectuate
the policies of the Act, we shall order the Respondent to pay them
back pay from the date of their respective discrimination until the
date on which the Respondent closed its plant, in the manner set forth
in the Intermediate Report.'1
SUPPLEMENTAL CONCLUSIONS OF LAW
1. By discharging Mabel Beasley, Mabel Ellis, Veronica Hagen,
Martha Leach, Millie Lilliston, Mildred Barksdale, Martha Thrash,
June Fay Leach, Bevia Inez McCauley, Anna Crump, Jean Phelps,
Lucy Suber, Mildred Rogers, Lillian Glass, Bessie Bryant, Dorothy
Hamlet, and Mary Clary, as herein found, the Respondent has dis-
criminated in regard to their hire and tenure of employment and dis-
couraged membership in a labor organization in violation of Section
8 (a) (3) and (1) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
Order
Upon the basis of the above findings of fact, conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
the Respondent, Colonial Fashions, Incorporated, Petersburg, Vir-
ginia, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Ladies' Garment
Workers Union, AFL, or in any other labor organization of its employ-
ees, by discharging or in any other manner discriminating in regard
to their hire or tenure of employment or any term or condition of
their employment, except to the extent permitted by the proviso to
Section 8 (a) (3) of the Act.
(b) Advising its employees to organize a union; threatening to
close its plant if they did organize a union; and interrogating employ-
ees concerning their membership in or activities on behalf of the
International Ladies' Garment Workers Union, AFL, or any other
labor organization, in a manner constituting interference, restraint,
or coercion in violation of Section 8 (a) (1) of the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
11 Randolph Corporation, 89 NLRB 1490, 1495
COLONIAL FASHIONS, INCORPORATED 1205
labor organizations, to join or assist International Ladies' Garment
Workers Union, AFL, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole Mabel Beasley, Mabel Ellis, Veronica Hagen,
Martha Leach, Millie Lilliston, Mildred Barksdale, Martha Thrash,
June Fay Leach, Bevia Inez McCauley, Anna Crump, Jean Phelps,
Lucy Suber, Mildred Rogers, Lillian Glass, Bessie Bryant, Dorothy
Hamlet, Mary Clary, Mae Collier, Leuvinia Nicholas, and Evelyn
Rudd for any loss of pay they may have suffered as a result of their
discriminatory discharges, in the manner set forth in the sections of
this Decision and the Intermediate Report entitled "The Remedy."
(b) Upon request, make available to the Board or its agents for
examination and copying all payroll records, social-security payment
records, timecards, personnel records and reports, and all other records
necessary to determine the amount of back pay due.
(c) Mail to each person whose name appears on its October 2,
1953, payroll, including persons hired thereafter, a copy of the notice
attached hereto and marked "Appendix." 12 Copies of said notice, to
be furnished by the Regional Director for the Fifth Region of the
Board, shall, after being duly signed by the Respondent's authorized
representative, be mailed immediately upon receipt thereof.
Post at its plant at Petersburg, Virginia, if operations there are
resumed within 1 year from the date of this Order, copies of the
aforesaid notice. Such notices shall be posted by the Respondent
immediately after operations are resumed and maintained by it for
sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted; and
reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the said Regional Director in writing within ten (10)
days from the date of this Order what steps the Respondent has taken
to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondent violated Section 8
(a) (5) of the Act.
MEMBERS MURDOCIi and RODGERS took no part in the consideration
of the above Decision and Order.
Is In the event that this Order is enforced by a United States Court of Appeals, there
shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur-
suant to a Decree of the United States Court of Appeals, Enforcing an Order."
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their mem-
bership in, or adherence to, International Ladies' Garment
Workers Union, AFL, or any other labor organization, or counsel
them to organize a union, or threaten then with reprisals or loss
of benefits, either directly or by implication, for membership or
adherence to the above-named Union, or any other labor organiza-
tion.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organ-
ization, to form labor organizations, to join or assist Interna-
tional Ladies' Garment Workers Union, AFL, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion, and to refrain from any or all of such activities except to
the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act.
WE WILL make whole to the employees named below for any
loss of pay suffered as a result of the discrimination :
Mabel Beasley
Veronica Hagen
Millie Lilliston
Martha Thrash
Bevia Inez McCauley
Jean Phelps
Mildred Rogers
Bessie Bryant
Mary Clary
Leuvinia Nicholas
Mabel Ellis
Martha Leach
Mildred Barksdale
June Fay Leach
Anna Crump
Lucy Suber
Lillian Glass
Dorothy Hamlet
Mae Collier
Evelyn Rudd
All our employees are free to become or remain members of the
above-named Union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
COLONIAL FASHIONS, INCORPORATED,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
COLONIAL FASHIONS, INCORPORATED
Intermediate Report
STATEMENT OF THE CASE
1207
Upon a second amended charge duly filed by International Ladies' Garment
Workers Union, AFL,' herein called the Union, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Director for the Fifth Region (Bal-
timore , Maryland), issued a complaint dated November 3, 1953, against Colonial
Fashions, Incorporated, a corporation herein called the Respondent, alleging that
the Respondent had engaged in and was engaging in unfair labor practices within
the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the
National Labor Relations Act (61 Stat. 136), herein called the Act. Copies of the
complaint and charge were duly served on the parties.
With respect to the unfair labor practices the complaint alleged, in substance,
that on various dates between October 5 and 21, 1953, the Respondent discharged
certain named employees and has since refused them reinstatement "because said
employees joined or assisted, or were sympathetic to the Union, or because they
engaged in , or were suspected of engaging in, or having engaged in , or being sym-
pathetic to concerted activity for the purposes of collective bargaining or other
mutual aid or protection"; that on October 2, 1953, certain of the Respondent's
employees selected and designated the Union as their exclusive bargaining agent;
that on and after October 2, 1953, the Respondent has refused to bargain collec-
tively with the Union as such exclusive bargaining agent; that the Respondent has
engaged in various acts of interference, restraint, and coercion in violation of the
Act; and that by the above conduct has violated Section 7 of the Act and more
particularly Section 8 (a) (1), (3), and (5) thereof.
The Respondent duly filed an answer in which it denied that it had engaged in
any of the unfair labor practices alleged in the complaint.
Pursuant to notice a hearing was held before Louis Plost, the duly designated
Trial Examiner on December 1 to 10, 1953, at Petersburg, Virginia.
At the hearing all the parties were represented and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to introduce evidence perti-
nent to the issues, to argue orally upon the record, and to file briefs and proposed
findings and conclusions. Oral argument was presented by the Respondent only.
A date was fixed for the filing of briefs, and/or proposed findings and conclusions,
with the Trial Examiner. A brief has been received from the General Counsel.
At the opening of the hearing motions to amend the complaint were granted
without objection and likewise at the close of the hearing the Trial Examiner
granted a motion by the General Counsel to conform the pleadings to the proof
with respect to names, dates, spelling, and like matters.
The witnesses were separated during the hearing.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, and the answer admits:
Respondent is, and has been at all times material herein, a corporation organ-
ized under and existing by virtue of the laws of the Commonwealth of Virginia,
with its principal office and place of business located at Petersburg, Virginia,
where it is engaged in the manufacture, distribution and/or sale of ladies
apparel.
Respondent, in the course and conduct of its business at Petersburg, Virginia,
as described hereinabove, annually purchases, or causes to be shipped, raw
materials, goods, equipment and supplies of a value in excess of $25,000, of
which in excess of $25,000 of such materials, goods, equipment and supplies
are received at its Petersburg, Virginia, plant from points and places outside
the Commonwealth of Virginia, and Respondent annually produces, distributes
and/or sells finished products valued in excess of $50,000, of which in excess
of $50,000 represents shipments from its Petersburg, Virginia, plant to points
and places outside the Commonwealth of Virginia.
'The charge was filed October 5, 1953, the first amended charge October 14, 1953, and
the second amended charge was filed November 3, 1953.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATION INVOLVED
International Ladies' Garment Workers Union, AFL, is a labor organization within
the meaning of Section 2 (5) of the Act, and admits employees of the Respondent
to membership.
III. THE UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain
1. The appropriate unit and the Union's representation therein
The complaint alleged, the parties stipulated, and the Trial Examiner finds that:
All employees of the Employer at its Petersburg, Virginia plant, excluding office
clerical employees, guards, professional employees, and supervisors as defined
in the Act, constitute a unit appropriate for purposes of collective bargaining
within the meaning of Section 9, subsection (b), of the Act.
Stephen I. Schlossberg, one of the union organizers, testified that the Union 2
began a drive to organize the Respondent's employees during the first week in Sep-
tember 1953. Literature was distributed in front of the Respondent's plant by two
other organizers, Harvey Hafter and Marvin Mellaker. These two organizers did
not follow a self-imposed code of manners while engaged in passing out literature.
Max Sawitz, the Respondent's manager, testified:
. Mr. Hafter, he was standing on the sidewalk-my office is about like there
[indicating] with the windows open-he was yelling at me, "Mr. Sawitz" and
making noses at me-
Sawitz further testified:
Trial Examiner PLOST: When was this, on what date?
The WITNESS: Sometime in September, in October, on several occasions.
Trial Examiner PLOST: He did it on more than one occasion?
The WITNESS: Yes, sir. Till I called the police.
Trial Examiner PLOST: And will you show me what you mean by making
noses at you?
The WITNESS: Well, this is how he went [indicating].
Trial Examiner PLOST: Let the record show that the witness indicated a ges-
ture that can best be described-I think it is best described in a poem called,
"The Ballad of Nellie Cook" which appears in Ingoldsby's Legends, and if I
remember the stanza, it goes something like this:
The Sacristan said not a word to indicate a doubt, but put his thumb up
to his nose and spread his fingers out.
That described the gesture you just made?
The WITNESS: Yes.
Hafter did not deny this testimony which is credited by the Trial Examiner.
Employee Carrie Wright testified without contradiction that "every day" when she
would come to work during the organizing period she saw "cops" on the sidewalk
opposite the plant.
The organizing effort apparently culminated with a union meeting on Thursday,
October 1.
2. The alleged refusal to bargain
Schlossberg testified that during the morning of Friday, October 2, he telephoned
the Respondent's office and spoke to a man who identified himself as "Mr. Sawitz."
According to Schlossberg he then told this person:
this is Stephen Schlossberg, Director"-I think I said, "I am Director of
Organization of the International Ladies Garment Workers' Union, and I would
like to make an appointment to come and see you."
Q. Did you tell him what about?
A. The conversation that went on at that point?
Q. Tell us that conversation in your own words, sir.
A. He said, "What about?" And I said, "We have cards signed by more
than 90 percent of your workers, of the workers at Colonial Fashions who wish
to be represented by this union in matters of collective bargaining, and I would
2 "Union" refers herein to the International. Apparently no local was formed.
COLONIAL FASHIONS, INCORPORATED 1209
like to meet with you for the purpose of discussing the beginning of that collec-
tive bargaining."
He said-these were his exact words as I remember them: "If you have
90 percent of the people, you don't need me... .
Schlossberg testified there followed some fruitless conversation during which he
tried to explain the benefits of unionization to Sawitz, however:
He didn't seem interested in that. He didn't comment on it. I then told him
that I would be in town all day long and could be reached at Hotel Petersburg
all day long. He said, "I have nothing to talk about."
Q. Who said that?
A. Mr. Sawitz. I then remembered that several of the workers had told me
about a speech made by Earl Taylor the day before; a speech which you have
in the record.
And I told Mr. Sawitz that we were going to press our-to charge him with
an unfair labor practice; that the girls felt intimidated and threatened by that
speech, and I asked him to please try not to have any more occurrences like
that occur; that is, anything else like that happening, any more speeches or
supervisors making threatening remarks.
According to Schlossberg he then gave his name , address, and telephone number
to Sawitz.
The Trial Examiner infers that Sawitz did not avail himself of the opportunity
afforded him to telephone Schlossberg.
The record is clear that as of October 2, the unit of the Respondent's employ-
ees, stipulated as appropriate and apparently within which the Union claimed a
majority evidenced by "90 percent of your workers," contained 97 employees. At
the hearing the Union submitted 55 signed "authorization cards," which the Trial
Examiner accepts as valid, 49 constituting a majority.3
With respect to Schlossberg's testimony that he requested the Respondent to
recognize the Union on October 2, Sawitz testified that Schlossberg telephoned him
but Sawitz gave a different version of the conversation. He testified:
On October 2nd, I believe it was, I received a telephone call. He told me he
was Mr. Schlossberg, represented the International Ladies Garment Workers'
Union. He said he would like to see me . I said, "Well, what is it about?"
He told me that he has more than 90 percent of my people signed up for the
union, and "under these circumstances we take over." I said to him, "I see
that you are taking over. Very well. For the past few weeks, you have a
couple of men outside of this here plant that have been disturbing the help, all
over the place." I believe this gentleman [indicating]-Mr. Hafner, he was
standing outside on the sidewalk-my office is about like there [indicating]
with the windows open-he was yelling at me, "Mr. Sawitz" and making noses
at me
Trial Examiner PLOST: Did you tell that to Mr. Schlossberg?
The WITNESS: That is what I told him. I said, "If that is how you take
over; if that is how you want to talk about it, I have nothing to talk to you
about."
Then he said, "Suppose I come over to your office, and we can help you?"
"You have helped me very well," I said. "If you wanted to do any kind of
helping, why didn't you come to me before you started anything like this? Now
you come along and say, 'I want to help you., You had plenty time to do help-
ing if you wanted to."
He tells me "That is the way we operate." "If that is the way you operate,
then good-by."
3 The Union submitted 61 cards, of these the Trial Examiner rejects 6 for the follow-
ing reasons
Shirley Dawley because she signed the card on being told, "You had to."
Evelyn Lorraine Flowers because she did not know the meaning of the card she signed.
Donna Hicks because she did not understand what she signed.
Dora Picardat did not affix the date to the card. She pointed out Hafner as the per-
son to whom she gave the card. Menaker testified he wrote the date on the card. Under
all the circumstances the Trial Examiner finds that doubt exists, sufficient to cause him
to reject the card
Mary Jane Phillips, card dated 10-5-53
Adelaide Botts, card dated 10-30-53.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner PLOST: Did you say anything else to him?
The WITNESS: That was the conversation.
Trial Examiner PLOST: Did you talk to him again after that?
The WITNESS: No, sir.
On the entire record considered as a whole, all the evidence, much of which is here-
inafter discussed and evaluated, and from his observation of the two men while
testifying, the Trial Examiner is convinced that Sawitz' account of the October 2
telephone conversation between Schlossberg and himself represents the more ac-
curate version thereof and therefore credits Sawitz' testimony with respect thereto.
Elsewhere in this report the Trial Examiner fails to credit Sawitz with respect to
certain material testimony, however, this does not mean that all of Sawitz' testimony
must be discredited, moreover, the Trial Examiner is fully convinced that other mat-
ters growing out of the telephone conversation hereinafter discussed strongly sup-
port the conclusion that, as to the telephone conversation, Sawitz is the credible
witness. The Trial Examiner so finds.
On October 5, Schlossberg filed the original charge herein in which he did not
allege refusal to bargain and also sent the following letter to the Respondent:
UPPER SOUTH DEPARTMENT
INTERNATIONAL LADIES' GARMENT WORKERS UNION
A. F. of L.
107-109 North Eutaw Street Baltimore 1, Maryland
Regional Office Regional Office
1171/? W. Campbell Ave. 840 Sixty Ave.
Roanoke , Va. Huntington, W. Va.
Phone 36041 Phone 6561
Mr. MAX SAwt'rz October 5, 1953.
Colonial Fashions, Inc.
Petersburg, Virginia
Dear Mr. SAwITZ: I am again contacting you with reference to the beginning
of collective bargaining between this union, representing the workers in your
plant, and Colonial Fashions.
You will remember that when I contacted you on Friday, October 2nd, I told
you that more than 90% of the workers had authorized this union to represent
them, a fact which I am happy to state you did not contest. At this time I men-
tioned the unfair labor practice engaged in by one Earl Taylor, a management
person , in intimidating and threatening the workers.
We do not wish to cause any disturbance or trouble of any sort. As a mat-
ter of fact, it is our opinion that a production-minded union such as the I. L. G.
W. U., understanding the problems of the garment industry, can be of mate-
rial help to management.
It would be best for all concerned if you would arrange, at your earliest
convenience, to meet with us to discuss our mutual problems and see if we can
reach a contractual agreement.
As I told you on Friday, I feel compelled to file a charge with the National
Labor Relations Board in order to protect our members from irresponsible
threats. Should we get together, I will, of course, drop this charge.
It is my earnest hope that we can meet in a spirit of understanding in the
very near future and cement our relationship. Please be good enough to let me
hear from you as soon as possible.
Yours very truly,
(S.) Steve Schlossberg,
STEVE SCHLOSSBERG,
Director of Organizc-tion
Upper South Department, ILGWU.
CC: N. L. R. B.-5th Region
Charles Kreindler
Jacob J. Edelman
Sent : REGISTERED MAIL
COLONIAL FASHIONS, INCORPORATED 1211
The second paragraph of the letter reads:
You will remember that when I contacted you on Friday , October 2nd, I
told you that more than 90% of the workers had authorized this union to
represent them, a fact which I am happy to state you did not contest. At this
time I mentioned the unfair labor practice engaged in by one Earl Taylor, a
management person , in intimidating and threatening the workers.
This paragraph is apparently intended to sum up Schlossberg 's telephone conversa-
tion with Sawitz.
However , it does not agree with Schlossberg 's testimony , hereinabove quoted,
to the effect that following a statement that the Union held signed cards from 90
percent of the Respondent's employees, Schlossberg "told Sawitz I would like to
meet with you for the purposes of collective bargaining."
It seems singular to the Trial Examiner that Schlossberg, who is director of
organization, upper south department, for the Union, and presumably conversant
with labor law, should have made no mention of a request for recognition in his
letter, if in fact one, in any form, was actually made. Instead of referring to a
request for recognition, which is vital, Schlossberg merely "clinches" his claim of a
90 percent representation by stating that he made the claim and this is "a fact which
I am happy to state you did not contest."
Is it possible that Schlossberg really believed that if his assertion of majority was
not challenged it was therefore proven?
The cards on which the claim was made were not shown to Respondent, nor were
they proffered for examination.
In the opinion of the Trial Examiner neither the opening or closing paragraphs
nor any other portion of the Union's, October 5, letter, above set out, can be read to
mean that a demand for recognition and negotiation is being made in the letter.
With respect to the telephone conversation of October 2, Sawitz has been found
to have testified credibly that Schlossberg followed his claim of a 90 percent majority
with the statement that "under these circumstances we take over," and after Sawitz'
complaining , among other things of Hatter 's "making noses ," Schlossberg responded
"that is the way we operate."
Considering the obvious fact that Schlossberg's October 5 letter is nothing more
or less than a self-serving document clearly intended to marshall all the facts pos-
sible to sustain a charge that the Respondent illegally refused to bargain, it would
therefore have presented as strongly as possible the 3-day old conversation between
Schlossberg and Sawitz. As Schlossberg was writing with full knowledge that
Sawitz at the moment would recall all the details and would probably have sought
legal advice the fact that Schlossberg's letter does not mention a demand for recog-
nition and did not charge the Respondent with a refusal to bargain in the original
charge not only goes to support the Trial Examiner's finding that Sawitz gave the
accurate account of the October 2 telephone conversation but compels the conclusion
that where Schlossberg's testimony differs from his letter he is making a brazen
attempt to amend the facts
The fifth paragraph of Schlossberg's letter to the Respondent reads:
As I told you on Friday, I feel compelled to file a charge with the National
Labor Relations Board in order to protect our members from irresponsible
threats Should we get together, I will, of course, withdraw this charge.
[Emphasis supplied.]
This amazing statement can mean only that Schlossberg feels that the Board's
processes are his to manipulate as he sees fit.
The charge was filed the same day as the letter was sent.
The Board presumes that a charge is filed in good faith. After a charge is filed
with the Board it becomes weighted with the public interest and it becomes the
Board's duty to treat the charge from the viewpoint of the public interest . A charge
duly filed is no longer the property of the Union, or of the Board, but the concern
of the law.
To offer a charge, duly filed, in trade to the party charged with an unfair labor
practice thereunder is contempt beyond contempt, not only for the Board but for the
law it administers.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 23 the Respondent replied to Schlossberg 's letter, stating inter alia:
October 23, 1953.
Mr. STEVE SCHLOSSBERG , Director of Organization
Upper South Department
International Ladies Garment Workers Union
107-109 North Eutaw Street, Baltimore 1, Maryland
Dear Mr . SCHLOSSBERG : This will acknowledge your letter of October 5,
1953 , wherein you claim to represent more than 90% of the workers of the
Company.
I have heard that some of our workers have signed authorization cards for
your Union to represent them . I have also heard that some of these workers
did not know what they were signing , and want to revoke whatever authoriza-
tion they may have given.
Accordingly, because of this and what I have observed in general , I do not
believe that a majority of our employees desires your Union to represent them
as their collective bargaining agent . Such being the case, we feel we cannot
recognize your Union as such, unless it is certified in the manner provided by
law as the collective bargaining agent.
On the same day Schlossberg sent the following reply:
October 23, 1953.
MAX SAWITZ , President
Colonial Fashions, Inc.
Petersburg, Virginia
Dear Mr. SAWrTZ : Thank you very much for your letter received October
23, 1953, in which you acknowledge my letter to you of October 5th. I am
grateful to you for at last acknowledging this communication and writing to us.
However, since my original request to you on October 2nd and subsequent
letter of October 5th , lots of things have happened and a lot of water has
gone over the dam. You will remember that on the aforementioned dates
my approach was that we might get together in a amicable spirit and settle
whatever problems we had before us.
In our conversation of October 2nd you did not question the fact that we
represented a majority of the workers . Now, however , after many union
leaders have been fired for union activities and a long list of unfair labor
practices have been committed by the company , you question whether we repre-
sent the majority of the workers.
I will be happy to see you and talk with you to present adequate evidence
that we represent an overwhelming majority of the workers at Colonial Fash-
ions. However, in view of all that has transpired since we first tried to estab-
lish contact with the company , we feel that we have to insist that such a
meeting be held only in the presence of a representative of the National Labor
Relations Board of the United States Government . This can be accomplished
at an informal conference which will undoubtedly be the procedure of the
NLRB in this case. [ Emphasis supplied.]
Looking forward to the beginning of collective bargaining at Colonial Fash-
ions between the company and the workers , including their chosen representa-
tives. I urge you to exercise every care so as not to commit further unfair
labor practices , including discharge.
I am sure that both of us will hear from the National Labor Relations Board
concerning an informal conference in the very near future . Let us hope that we
can get together at such a conference and work out our differences toward
the end of having Colonial Fashions a good shop to work in and a good shop
to operate.
Yours very truly, STEPHEN SCHLOSSBERG, Dir.
Organization Department
The Trial Examiner notes that in this letter Schlossberg again states that "in
our conversation of October 2nd you did not question the fact that we represented
a majority of the workers" but again he fails to state that he at that time requested
recognition from the Respondent but carefully designs his letter to cover any dis-
crepancies between his claimed 90 percent (in the first letter) and any lesser amount
of valid cards by accusing the Respondent of unfair labor practices.
Schlossberg 's statement in the fourth paragraph of his letter that:
... we feel that we have to insist that such a meeting be held only in the
presence of a representative of the National Labor Relations Board of the
COLONIAL FASHIONS, INCORPORATED 1213
United States Government. This can be accomplished at an informal con-
ference which will undoubtedly be the procedure of the NLRB in this case.
raises the question, in the mind of the Trial Examiner, as to whether Schlossberg
felt that he was able to manipulate the Board's processes as he wished. Apparently
this is so for in the last two paragraphs of the letter Schlossberg is clearly attempt-
ing to create the impression that the Board's representative would arrange and sit
in on a bargaining conference at his behest.
There has been no meeting between the parties as a result of this letter.4
Conclusion
The Trial Examiner has found that on October 2, 1953, the Union held 55
valid authorization cards among 97 eligibles. It therefore represented 56.7 percent
of the Respondent's employees.
The Trial Examiner has also found that the Union, although it informed the
Respondent it represented 90 percent of its employees, did not offer any proof of
its claim, and did not make a demand for recognition until after the Respondent
expressed in writing its doubt that the Union represented a majority of its em-
ployees and also suggested a Board determination of representatives through an
election. Both during its first contact with the Respondent and its letter prior to
the Respondent's expressed doubt and suggestion that an election be held the Union
contented itself with a statement that the Respondent had expressed no doubt of its
claim on October 2, as if this proved the Union's position.
The Respondent's letter of October 23, in view of all the circumstances in this
case was in the opinion of the Trial Examiner, sufficiently timely. The Respondent's
doubt of the Union's majority and its expressed desire to resolve the issue as pro-
vided by law is clear. There is nothing in this record to show that the Respondent
was not expressing an honest doubt of a claimed majority or acting in absolute good
faith, inasmuch as no offer of proof had been made by the Union and no demand
for recognition made
The Trial Examiner finds that the Respondent's doubt of the Union's majority was
honestly held and timely made.
There will appear at a later point herein a discussion of conduct of the Respondent
alleged to be and in some cases found to be violations of Section 8 (a) (3) of the
Act. Inasmuch as a finding of 8 (a) (3) has been held to have bearing upon a
finding of 8 (a) (5), the Trial Examiner will not make his final finding and rec-
ommendation as to the Respondent's alleged refusal to bargain with the Union until
the other alleged unfair labor practices are fully discussed and determined.
B. Interference, restraint, and coercion
The Alleged Supervisory Status of Earl Taylor
The General Counsel contends that Earl Taylor was a supervisor. This is de-
nied by the Respondent. The Trial Examiner sees no point in burdening this report
with a lengthy resume of the testimony brought forward by the General Counsel in
support of his contention, testimony which consisted largely of the observations of
witnesses who were in no position to observe other than casually, and opinion evi-
dence founded on nothing more than an evident desire to give the wanted answer,
by witnesses who had no real knowledge of Taylor's duties, or witnesses who finally
testified as did Veronica Hagen, on cross-examination, that Taylor was the plant's
"cutter" and that he sometimes brought work to the sewing room, or as did Martha
Leach, in answer to leading questions, quite improperly put but not objected to, who
testified.
Q (By Mr. Balicer.) Do you know whether Earl Taylor ever told the
girls in the plant on your floor what to do with respect to work or whether he
checked the work?
* The Trial Examiner calls attention to the fact that in the above discussion he has
referred to the conduct of Schlossberg and not to the conduct of the Union. This does
not mean that lie believes the Union is not charged with Schlossberg's conduct because
clearly it is Schlossberg's acts are the Union's acts, however, the Trial Examiner cannot
bring himself to believe that the International Ladies' Garment Workers Union, AFL,
which for so many years has occupied such a place high in the esteem of the American
labor movement and enjoyed the respect and good will of many of the employers of its
members, could have instructed Schlossberg to act as he did with respect to his letters
and testimony
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Yes. I saw him checking the work sometimes; not very often.
Q. Do you know whether he ever told the girls, to your knowledge, what
to do?
A. Not as I know of he didn't.
Taylor testified as to his duties . The Trial Examiner credits his testimony to
the eltect that he was the plant "cutter," meaning that he cut the material to shape
before it was sewn, and further, that he had no supervisory authority. The Trial
Examiner finds that Earl Taylor was not a supervisor.
The General Counsel also produced testimony that Taylor delivered a coercive
"speech" to the employees on October 1. As Taylor's remarks, if made, could not
bind the Respondent this report would not be burdened with a discussion thereof
except that the General Counsel's witnesses testified that Taylor's wife, Della Taylor,
a sewing room supervisor , was present during his "speech." As such the Respondent
could be bound through Mrs. T aylor, who however denied her presence. In his brief
the General Counsel shifts the emphasis from Taylor's speech to Mrs. Taylor's
presence and the Respondent 's failure to disavow Taylor's remarks , thus forcing
treatment in detail.
Mabel Beasley testified that she heard Earl Taylor make a speech at "lunch time"
in the plant "around the last part of September or the first of October."
The record shows that the General Counsel then fixed the time to suit and that
the witness testified to the contents of the speech as follows:
Q. Now you have referred to Earl Taylor making a speech on October 1st.
Will you tell us all about that occasion which you have stated, as you say, was
on or about October 1st?
A. Well, it was just before lunch time was over. Sam Baldwin came and
told us girls that Earl wanted to see us, talk to us in the back of the room,
so we all went back there, and Earl said that he was superintendent of the com-
pany and had been since the company opened and that he would take over as
soon as Mr. LaVey left. And he told us that he called New York last night
and talked to Jack Lieberman, and he said that Mr. Lieberman does not like
a union , and won't work with one. And he said that they would move the
machinery to Pennsylvania if we went ahead.
Beasley testified that Della Taylor was present during the speech.
With some variations various witnesses told the same story.
Martha Thrash testified to the same subject matter being in the speech, but
testified that the employees were called from the "coke machine" in the hall to the
back to hear Taylor.
Veronica Hagen placed the speech "about the 3rd of October it was; about a day
or two before I was laid off. Maybe the 4th."
Bessie Bryant testified that Taylor said he understood all of them had signed
union cards and that Sawitz "had called the boss in Pennsylvania, Mr. Lieberman."
Millie Lilliston testified without giving a date for the occurrence that Earl Taylor
"stopped us from work. He cut off all the machines," called them together, and
told the assembled employees that "if anyone signs a union card they would close
the doors and send the machines to Delaware."
All of the witnesses testified that Mrs. Della Taylor was present during her hus-
band's remarks.
Earl Taylor denied that he called the sewing room girls together and addressed
them in the presence of his wife on October 1. He testified that on that day he
told "seven or eight" girls gathered at the "coca cola machine" during the "break
time" at 10 o'clock, that "Mr. Liberman and Mr. Katcher [whom he identified as
customers] would visit the plant and that Mr. Sawitz wanted to talk to them."
Whether or not Mrs. Taylor was present is of little moment , inasmuch as Earl
Taylor has been found to have had no supervisory authority. The fact that Earl
Taylor's wife was a supervisor in no way changed his status from that of an em-
ployee not authorized to speak for management nor placed his interests ipso facto
on the side of management .5
The above-related incident , according to Schlossberg 's testimony, formed the
basis of the original charge herein, which he offered to withdraw "should we get
together."
Earl Taylor testified he told the employees that Jack Lieberman would visit the
plant.
The General Counsel stated on the record that "Lieberman was the agent or
representative of the Company."
6 See Page Boy Company, Inc., 107 NLRB 126.
COLONIAL FASHIONS, INCORPORATED 1215
There is not a scintilla of proof that will sustain the General Counsel's conten-
tion as to Lieberman 's status.
In any event, on October 2, Sawitz, accompanied by Lieberman, came to the
sewing rooms. General Counsel's witnesses testified that Sawitz introduced Lieber-
man to them and that Lieberman spoke to them about their piece rates and their
rest period , but did not mention the Union.
The General Counsel seems to make no contention that Lieberman's remarks,
if made, and if he were in fact an agent of management, were in any manner vio-
lative of the Act. The Trial Examiner was at a loss to understand why the General
Counsel spent so much time on "Jack Lieberman," inasmuch as the General Counsel
must have known the nature of the testimony to be adduced from his witnesses,
but when the General Counsel's brief to the Trial Examiner was received the part of
Jack Lieberman in the General Counsel's "scheme of things" was made clear. The
General Counsel argues in his brief:
The appearance of a Mr. Lieberman, who had been referred to by Earl Taylor,
in the plant , conform the making and the substance of Earl Taylor's remarks as
testified to by witnesses called by Counsel for the General Counsel. Although
the Union called Earl Taylor's speech to Respondent's attention on October 2,
1953, the Respondent did nothing which could be construed as a disavowal
to its employees of the speech and other acts of coercion and interference by
its supervisors , agents and representatives , until October 23, 1953, several weeks
later after the discriminatory discharges alleged herein.6
On October 2, Sawitz addressed the employees and testified without contradic-
tion, and credibly, that Lieberman was in the room at the time he (Sawitz) ad-
dressed the employees 7 but that he did not hear any remarks by Lieberman.
Sawitz testified:
Q. What did you have a conversation with the girls about?
A. I had a supervisor in charge, a Mr. LaVey. He worked with the girls,
and during their course of working he told me that he and the girls have agreed
to eliminate the rest periods.
Mr. BALICER: I object to any conversation with Mr. LaVey, and move that
any testimony that has been given in this regard be stricken; hearsay.
Trial Examiner PLOST: Overruled.
The WITNESS: That is what I was talking to the girls about.
Trial Examiner PLOST: All right.
The WITNESS: And the girls told me different: That they did not agree to
the rest period being taken away from them.
So I told them that since they have not agreed to it, and I have started off
the plant with rest periods, and expected to continue it, so therefore the rest
periods will be continued. I have noticed that they were taking their rest periods
Just the same, in spite of the fact that it was taken off the clock-we have a
buzzer, and it would buzz at certain periods of time.
I told them that I will see to it that that man will come back and adjust the
clocks so it will buzz at the proper time, and they will get their rest period.
Sawitz continued:
The WITNESS: And I talked to them further, and I talked to the girls that
we are having quite a bit of disturbance in the plant; noticed i' lot of union
activities.
Mr. BALICER: Now, I object to that.
Trial Examiner PLOST: He is just telling what he told the girls. I don't
think you have any right to object to it. Go ahead.
The WITNESS: I told these girls that they were free to join the union and
do as they please; and those that did not wish to have any disturbance during
our working hours, during the working period. And I have told these girls,
"You understand that we are a new plant. We are operating only a few months.
I have lost a lot of money. And now"-
Mr. BALICER: Mr. Examiner, I fail to see the materiality of what he told the
girls.
Trial Examiner PLOST: There is an allegation that the witness talked to the
employees, and they have testified to that. He is giving his version of it. He
has a right to put it in the record.
e The General Counsel also contended that Thomas Dail was a supervisor. The record
shows that Dail was in fact little more than the plant janitor.
7 Sawitz made the same remarks on both sewing room floors
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The WITNESS. I said "I am receiving too many complaints from our cus-
tomers that the work is not coming through properly made. We are getting
too many rejects. The supervisor is talking to you about it all the time. We
are not getting the production we should get. If you think anyone can stay in
business , if you want to continue to carry on in this manner it is going to be
impossible. Now if we can't get an honest day's work for an honest day's
pay, we won 't be able to stay in business . If you girls intend to continue this
way, it won't be good for anybody."
Trial Examiner PLOST: Is that all you told them?
The WITNESS: That is all I have told them.
Mabel Beasley testified that neither Lieberman or Sawitz mentioned the Union
and "we were rather disappointed because they didn't."
The General Counsel does not contend that the Respondent violated any provision
of the Act by reason of Sawitz' above-cited remarks.
C The discharges
1. The alleged discriminatory discharges of Mabel Beasley, Mabel Ellis, Veronica
Hagen, Martha Leach, Millie Lilliston, Martha Thrash, June Fay Leach, and
Mildred Barksdale
Mabel Beasley testified that: She signed an authorization card on September 15;
she was appointed "committee woman" for the Union on October 1; she "signed up
one girl on the second floor and I talked to Harvey [Hafter] out front"; "in the lat-
ter part of September," Supervisor Della Taylor said to June Fay Leach and her-
self, "You girls ought to get a union in here"; and on October 1, Della Taylor said
to her:
We called New York last night and talked to Mr. Lieberman, and he said he
isn't for the union and wouldn't work with a union and they are going to close
the doors Saturday morning if you girls go ahead with the union; he will close
the doors.
Della Taylor denied that she discussed the Union with anybody at any time.
Beasley further testified then on October 5:
About fifteen minutes before 4 o'clock, Della Taylor came to my machine and
she said, "Mabel, work is about caught up. I am going to have to lay you off
for a couple of days " She said, "I will call you when I need you." So after
four o'clock I went back and asked her, I said, "Why did you lay me off and
didn't lay Mildred Rogers off, when I have much more seniority than she?"
And she said, "She is going home in the morning as soon as she finishes her
bundle."
The following day, according to Beasley she, and a group of others who had been
terminated, asked Sawitz for work and were told by Sawitz that he did not know
when work would be available but that they would be called "when I need you."
Two more requests for work, made during the same week by Beasley, were also re-
fused on the ground that no work was available.
According to Beasely all former layoffs were made according to seniority which
was not the case on October 5. She has not been recalled.
Veronica Hagen testified that: She signed a union card on September 15;
at the "end of September" she "signed up about four or five other girls"; Della
Taylor told her (together with Leach) that "it would be a good idea for us to have
a union in here" and that Taylor's sister and brother-in-law, also employees of Re-
spondent, would sign union cards; and about October 3, Della Taylor told her (and
Leach) "You better wait a while before you get a union in here. Otherwise Mr.
Sawitz will close the plant down." She further testified that she had talked to the
union representative while sitting on the steps outside the plant; and that on Oc-
tober 5:
Stella-Della Taylor walked up to me about two minutes before 5 and told me
that she had to lay us off for a couple of days because there was no more work
to do for us.
Hagen further testified that: At the time she was laid off she was doing "pinking"
on blouses ; "there were only two or three bundles of blouses left" but that other
work on coats was coming through which she estimated would require 2 or 3 weeks
work; and another girl was put on the "pinking" operation during the day of her
discharge.
COLONIAL FASHIONS, INCORPORATED 1217
Martha Leach testified that she was laid off together with Hagen, Della Taylor
telling them "we are up with the pinking." Her testimony is somewhat, different
than Hagen's in that according to her account on October 5, "they put two other
girls to help us" and that at the time there was left "about a day's work on blouses,"
however there were coats "coming through." Leach also testified that Taylor told
her (and Hagen) that the employees ought to have a union.
Mabel Ellis testified that: She was told by Della Taylor on October 5, that she
(Ellis) was "temporarily laid off until further notice"; previous reductions in force
had been made according to seniority; on October 1, Taylor told her "if the Union
comes in , he [Jack] is going to close the doors", she did not know who was meant by
"Jack"; and Taylor also said to her at the time:
...You are like me", she says, "you have got your home here like I have.
We have got to kind of stick together. These soldiers' wives are here today
and gone tomorrow."
Millie Lilliston testified that she signed an authorization card on September 30,
1953, "in front of the plant," but did not know the name of the girl who gave it to,
her.8 She further testified that on October 5, Della Taylor laid her off because "they
didn't have enough of goods." She was never recalled.
Martha Thrash testified that: She signed a card for the Union on September 30,
1953; around "September 27th or 28th," Della Taylor told June Fay Leach, Jean
Phelps, Mabel Beasley, Martha Leach, and herself that "what we needed was a
union , but we would have to organize outside, . . we needed to get together and
organize outside"; 9 on October 1 or 2, the "day of the Union meeting . . . or the day
after," she passed union handbills in front of the plant; on October 5 she was moved
from "setting collars" to "pinking"; on October 6, Della Taylor told her she was being
let go because "work is slack"; when she was let go there were "three or four" bundles
of work for her operation, a bundle being a day's work for one "pinking" operator;
and there were three "pinking" operators
She further testified that she saw "ten or twelve dozen" bundles of skirts to be
pinked, these she saw in a box "fifteen or twenty" feet from her machine; and that
she "got a glimpse" of this work but did not count it or otherwise examine it.
Thrash testified she never went back to the plant after her layoff.
Mildred Barksdale testified that she signed a union card on September 16; that she
gave out union cards to "about eight" fellow employees, but could name only Bessie
Bryant, who according to Barksdale had only been there a "week or two" at the
time.10 Barksdale testified that on October 5, Della Taylor "come around and told
me she had to lay me off, let me go for a while for the work was caught up."
Barksdale further testified that at the time she was "setting cuffs," she had only
"about a couple of hours" work left.
This apparently did not satisfy the General Counsel for, without objection how-
ever, he then proceeded to put the following testimony into the record:
Q. Now, was there work in the plant besides the work that you had at your
machine that you have told us about?
A. Yes, it was.
Q. Will you tell us what work there was that you saw in the plant?
A. There were brunch coats. We were working on blouses at the time when
I was laid off. We were finishing up that lot. About 12 girls worked on it
finishing them up. And I don't know how much brunch coats there was in the lot.
They just came down and the girls had started working on them.
Q. Now would you normally have done your regular operation on brunch
coats or not?
A. What?
Q. Would your operation be done on brunch coats or not?
A. Yes.
Q. About how much time would it take, in your opinion , to do the work
that was on hand in the plant?
A. I would say about a couple of weeks.
Of course the quoted testimony is not probative evidence.
s Martha Leach testified that Lilliston signed the card in her presence
Neither Mabel Beasley nor Martha Leach who testified to Della Taylor' s statements
attributed such a statement to her or mentioned Thrash In their testimony
iU Bryant's card is dated September 30
338207-55-vol 110-78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barksdale also testified:
Q. Were you ever laid off before by the company?
A. We have three weeks off during the month of April, I believe it was.
Q. Were there or were there not times when the plant was operating but only
some girls were laid off before October 5th?
A. I can't recall if they had.
Q. Do you know what the company practice, if any, was with respect to
laying off; which girls were laid off first?
A. They usually lay off the newest girls first and keep on their older ones;
and I was the oldest girl in the plant then.
On cross-examination Barksdale changed her testimony regarding the order of
layoff previously used. The General Counsel on redirect sought another change.
The following is from the redirect examination by the General Counsel:
Q. (By Mr. Balicer.) You testified as to layoffs. You testified that the
layoff, the only layoff you recall was in April. Was the plant closed down in
April?
A. It was closed down in April, but I can't recall-for three weeks, I think
it was.
Q. Was everybody laid off at the same time or were some people laid off
before other people when the plant closed down?
A. They were laid off when they got through with their work and I was the
last one that left.
Q. You mean as each group finished its work?
A. That is right.
Q. Then that group was laid off?
A. Uh, huh.
Q. What, then, did you mean by your testimony earlier this afternoon when
you said in previous layoffs the company had laid off the new girls before they
laid off the old girls?
Trial Examiner PLOST: Mr. Balicer, this is your witness.
I don't think you should try to impeach her testimony. Just leave it in the
record the way it is.
June Fay Leach did not testify.
Della Taylor testified that: On October 5 and 7 there was little work in the plant;
she selected the employees for layoff and laid off employees working on blouses,
the sole reason for the layoffs being lack of work; the skill or seniority of the
employee did not enter into the layoff selections; for layoff on October 5, she
selected Beasley, Ellis, Hagen, Martha Leach, Barksdale, and Lilliston and Thrash
for layoff on October 6 because there was no work for them and selected June Fay
Leach for layoff on October 7 for the same reason; and all these employees
performed operations on blouses and were not recalled because the plant never
again made blouses and was closed shortly thereafter.
As to seniority as a factor in selection for layoff, Mrs. Taylor testified:
Q. Isn't it true that the company would generally, when there was a layoff
in the plant, lay off the newest girls first and keep the older operators?
A. No. I laid them off as they run out of their job, whether they were new
or old.
Q. Didn't you frequently take girls, when the work on their operation had
run out and put them on another operation?
A. Just to finish up the day's work.
* * * * * *
Q. What was the company's practice with respect to whether new girls were
kept on, or old girls9
A. Well, I kept the best operators. If they were good, I kept them, whether
they were new or whether they were old.
On the entire record, the Trial Examiner credits Taylor's testimony to the effect
that the layoffs were for economic reasons.
Sawitz testified.
Q. During the first week in October, do you know how much work the plant
had on hand?
A. We have had from day to day maybe a hundred dozen a day of work,
or less.
COLONIAL FASHIONS, INCORPORATED 1219
Q. What do you mean by day to day?
A. Well, that is about all we got in to make; sometimes it came in every
other day.
Q. Have you always operated on a day to day basis?
A. No. We have to operate on a program-at least two or three weeks ahead.
Sawitz further testified that the plant had discontinued operations and was closed
as of November 11, 1953.
Conclusion
On the probative evidence it is clear that on or about October 5, the plant was
operating on a hand-to-mouth basis, in this respect the Trial Examiner credits Della
Taylor's testimony that the plant never again manufactured another order of blouses
(the garments being worked on by the dischargees), and is persuaded on the record
that it may well be that Taylor was not aware that the plant was so near closing,
and may well have intended to recall those "laid off" on October 5 if work they
did became available, although the fact that 16 new employees were hired after
October 5, casts doubt on the Respondent's contention, a doubt which is also height-
ened by Schlossberg's telephone call of October 2.
The Trial Examiner credits Sawitz as to the amount of work on hand in October
and finds that the testimony of the General Counsel's witnesses when stripped of
their obviously incompetent opinions (as put into the record by the General Coun-
sel) corroborate Sawitz to the effect that on October 5 only a few more days' work
was available on blouses, the work being done by the dischargees.
The doubt created by the new hirings, in the opinion of the Trial Examiner, is
not sufficient to override the Respondent's contention that the employees above men-
tioned were discharged and not later recalled for any other reason than lack of work.
The Trial Examiner so finds and will therefore recommend that the complaint be
dismissed insofar as it alleges that the Respondent in any manner violative of the
Act discharged Mabel Beasley, Mabel Ellis, Veronica Hagen, Martha Leach, Millie
Lilliston, Martha Thrash, Mildred Barksdale, and June Fay Leach.
Della Taylor did not specifically deny the testimony of Mabel Beasley, Veronica
Hagen, Martha Leach, Mabel Ellis, and Martha Thrash to the effect that she told
these employees that they should form the Union and later that if "that Union"
were organized the Respondent would close the plant. The Trial Examiner credits
the testimony of Beasley, Ellis, Hagen, Leach, Thrash, and Barksdale and finds that
by Della Taylor's counselling employees to form the Union, the Respondent en-
couraged membership in a labor organization and by the later statement, that the
plant would be closed if the Union were organized, the Respondent discouraged
such membership, both statements being violative of Section 7 of the Act, more par-
ticularly Section 8 (a) (1) thereof.
Although the Trial Examiner has found that these statements by Taylor were
made prior to Schlossberg's telephone call of October 2, they are not sufficient in
themselves to disparage the Respondent's good faith with respect to any contention
that the Respondent violated Section 8 (a) (5) of the Act."
2. The alleged discriminatory discharge of Bevia Inez McCauley
Bevia Inez McCauley testified that she went to work at the Respondent's plant on
October 14, and was put at setting cuffs by Della Taylor and that sometime during
the day Taylor commented to McCauley that she "was doing very good."
McCauley testified that she signed a card for the Union that morning.
McCauley testified further that when she came in to work October 15 she took a
union leaflet that was being distributed to all newcomers by Hafter in front of the
plank;'that she laid the leaflet under her purse; that she left for the washroom taking
her purse with her; and that upoiP her return she saw Della Taylor standing by her
machine looking at the union leaflet which had been left there. McCauley testified:
Well, I come back from the bathroom and when she saw me, she went back; she
laid it down and went to the back of the room. As I sit down, she come back
and she told me they no longer needed me, that I was fired. And I asked her
why. She didn't answer; and she went back.
Della Taylor testified that she discharged McCauley on the second day she worked
at the Respondent's plant because:
11 Poe Machine & Engineering Company, Inc., 107 NLRB 1372.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Well, she didn't do her work good. She didn't make good work. And she made
very little of it. And I laid her off and I told her that I would have to let her go
because her work wasn't satisfactory.
The Respondent's records show that McCauley earned $2.09 on October 14 and
48 cents on October 15. Under the minimum wage guarantee the Respondent was
required to add $11.44 to McCauley's pay for the 2 days.
In order to find that ,the Respondent unlawfully discharged McCauley the Trial
Examiner must infer that she was singled out as a strong union adherent because she
accepted a handbill being freely and openly passed to anyone entering the plant. The
Trial Examiner prefers to be persuaded by the actual work record.
On the entire record the Trial Examiner finds that the Respondent did not dis-
charge Bevia Inez McCauley on October 15, 1953, because she joined or assisted the
Union or engaged in other concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection or was suspected of doing so.
The Trial Examiner will recommend that the complaint be dismissed insofar as
it alleges that the Respondent unlawfully discharged Bevia Inez McCauley.
3. October 16, 1953
Ann Crump testified that on October 15, she was elected cochairlady at the union
meeting; that at the same time Mildred Rogers was also elected cochairlady and
Lucy Suber and Jean Phelps were elected copresidents.
Crump further testified that on the morning of October 16, before work began,
she, accompanied by Suber, Phelps, and Rogers went to Sawitz' office and that the
following event thereupon took place:
Jean Phelps made a speech. She asked him if she could speak with him, and
he said, "Yes." She told him about the union meeting, that we had had the
night before, and he asked her what meeting She repeated it again. He
replied to her-
Q. (By Mr. Balicer.) What is that, again?
A. She repeated that we had gone to the union meeting and we are elected
officers and we were supposed to report to him on October the 16th. We
were elected by the girls.
Q. Just a minute. Will you please tell the Examiner what was said at that
time and who said it, to the best of your knowledge, as closely as you can recall
the words and the happenings?
A. Jean Phelps made the speech to Mr. Sawitz. She asked him if she could
speak with him. He said, "Yes." She wanted to speak to him about the union
meeting that we had on Thursday, October the 15th. He said, "All right."
She told him that we were elected four officers for the union. And before
she could finish her speech, he replied, "If you are working for the union, you
are not working for me; so get out."
Trial Examiner PLOST: What else?
The WITNESS: Lucy Suber asked if that means we are fired. He said "Yes.
Get out."
Lucy Suber testified to a somewhat different version:
so Jean [Phelps] asked to speak to him. So he told her, "All right." We
all went in the office.
She shut the door and she told him that she guessed that he would hear
that we were elected from the bunch of employees at Colonial Fashions that
afternoon, that we were elected as co-president-she and I; and Anna and
Mildred was chair ladies.
So he asked her, "What?" She repeated the second time that we was elected
on October the 16th or 15th-and he said, `WVell, if you girls are working for
the Union, you don't work for me." So I says to him, "Mr. Sawitz, does that
mean we are fired?" He says, "Yes. Get out and don't go back upstairs."
So I says, "Well, since we are fired, please give us our pay now.,, He say, "You
come back this afternoon and get your pay." So we left.
Jean Phelps testified: 12
I said, "Mr. Sawitz, could I speak to you a minute?" And he paced the
floor a couple of times, and then he said, "Yes. What is it?" And I said,
'a Phelps also testified •
Well, at that time was operating a machine, a pinking machine, and she [Mrs
Taylor] came back to my machine and she asked me-I asked her first-why were
COLONIAL FASHIONS, INCORPORATED 1221
"We four girls were elected official officers of the union." And he said, "What
union?" And I said, "The Ladies Garment Workers Union." And he said,
"Well, you are working for the union you are not working for me. So get
out. Don't go upstairs. Get out."
Mildred Rogers, called by the General Counsel, was not questioned with respect
to the above occurrence in which she was a participant.
Crump testified that during the afternoon the four women went to the plant
"together" for their pay Crump testified:
We came back that afternoon for our pay. We came back that afternoon
for our pay, and I asked the secretary-the four of us went in the office to-
gether. She says, "Well, I am sorry. I don't know anything about the girls
being fired." So she gave us our pay. So I told her Mr. Sawitz said that he
fired us, if we worked for the union, we don't work for the company any more.
Crump further testified that the "next Friday, the 23rd" the balance due her,
1 week having been withheld, was received by her "with a registered letter." 13
Suber testified that after receiving the above letter, the four union officers signed
and sent the following letter to the Respondent:
October 27, 1953.
MAX SAWITZ
Colonial Fashions, Inc.
114 N. Union Street
Petersburg, Virginia
Dear Mr. SAWITZ: We, the undersigned, have received your letter to us of
October 22, 1953, in which you reconstructed in your own manner the events of
the morning of October 16, 1953, when we were fired for our union activities.
In the first place, our conversation with you took place before working hours
and not "shortly after starting time" as you erroneously stated.
We told you that we had been elected to office in the local union. Had you
not cut us off and told us to "Get Out" we would have pointed out to you that
we would continue to confine our union activities to our own time and that during
working hours give you a fair days work. Nothing we said could normally be
construed to mean we were paid union officials.
all the old girls being laid off when new girls were being brought in, and she said
that the new girls were just being brought in on trial, so that if they needed anybody
later, that they would call them for work And she said-
Q. Did she say anything about the union?
Trial Examiner Prosy . Just a minute Let the witness testify
The WITNESS: And she said about the union, "I don't know too much about the
union," "but I don't think this plant needs one, because it hadn't been here long
enough."
Trial Examiner PLOST : Did she say anything else in that conversation?
,The WITNESS • Yes, sir. She said that if,-let's see ; she said if the union got in,
that, she wouldn't say that it would close down, but it could close down
Trial Examiner ProsT : I see.
The WITNESS. By Mr. Jack Lieberman.
The Trial Examiner does not credit Phelps' testimony with respect to Taylor.
The letter read as follows :
ANNA B CiuniP October 22, 1953.
628 S Adams St
Petersburg, Va.
Dear ANNA B. CRUMP,
On Friday, October 16th, you and three other employees came into my office shortly
after starting time, and said that you were working for the Union. I told you that
if you were working for the Union, I did not see how you could work for the Com-
pany. . All four of you asked if you were fired. I said "no," but that I did not see
hgw' you could work for the Union and work for the Company , too. I also advised
each one of you that each employee was free to join or not to join any labor union,
and that the Company would not discriminate in any way against any employee
either for joining or not joining a union. Whereupon all four of you left the plant
and have not returned to your job.
In view of the foregoing , I assume that you have quit your job. Accordingly, I
enclose a check for $21.90, being the amount of wages you had earned up until the
time you quit
Very truly yours, (S.] MAX SAWITZ.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As you should remember, when we asked if we were fired your answer was,
and we quote you in part, "Get Out". Furthermore, you at no time in any man-
ner indicated to us that we had a freedom of choice in either joining or not
joining the union. Your comments made it quite clear to us that you objected
to our participation in the union organization drive at Colonial Fashions, Inc.
We have not quit our jobs. We are available for work upon reasonable notice,
as should have been evident to you by our returning to the plant on several dif-
erent occasions. Regardless of your action in ordering us to "Get out", we still
consider ourselves employees of Colonial Fashions, Inc.
On cross-examination Suber testified:
(Signed)
Q. (By Mr. Pollard.) That letter that you just said that you sent: Did you
write it?
A. The four of us were together and went to our union representative and
asked him if we should send a reply-that Mr. Sawitz said we weren't fired, we
walked out. We sent a reply back with his, we sent this reply back to Mr.
Sawitz.
The General Counsel conducted further "redirect examination" on the letter as
follows:
Q. (By Mr. Balicer.) You say your representative Who was that?
A. Mr. Harvey Hafter.
Q. Did you tell him what had taken place?
A. Yes, I did.
Q. At the plant?
A. Yes.
Q. And the events surrounding the affair?
A. Yes.
Q. Did this letter reflect the facts as you knew them to be?
A. Yes.
It must be self-evident that the letter to the Respondent above referred to was
prepared by the union representative.
Sawitz testified:
These four girls came into my office. One of them said, "We want to see you."
I said, "All right. What do you want to see me about?" She said, "We want
to tell you that we are now working for the union, and we would like to talk
with you." I said, "If you are working for the union, I don't understand what
you are doing here. If you are working for the union, you can't be working
for us."
And Lucy Suber was at the end of the door, and she yelled out to me, "Are
we fired?" I said, "You came here to talk about something. You tell me you
are working for the union. How could I fire you? I haven't fired anybody."
"I haven't fired anybody; never fired anybody." They are not fired. Before I
knew it, they turned around and walked out
The Respondent's letter of October 22 (to the four women) must be taken to be
the best possible version that could be framed from the Respondent's point of view.
It is virtually the same as Sawitz' testimony given more than a month later. On the
other hand, the Union's letter, written a week later is not only a self-serving document
clearly intended to marshal the facts from the Union's point of view, but is also ap-
parently designed to lay the foundation for legal action, yet the letter does not state
that the employees asked if they were fired and Sawitz replied, "Yes Get out." The
word "Yes" to the query is omitted. Sawitz is quoted as telling the four women to
"get out." That this is not an inadvertent omission is shown by the phrase being
used twice in the letter, however at one point it appears as follows:
As you should remember, when we asked if we were fired your answer was, and
we quote you in part, "Get Out."
Apparently the opportunity to take advantage of the ground work laid by the words
"we quote you in part" arose at the hearing.
On the entire record, the evidence considered as a whole and his observation of
the witnesses, the Trial Examiner finds that Sawitz' version of the October 16 visit
to the Respondent's office by Crump, Suber, Phelps, and Rogers, is the more accurate
and credits his testimony with respect thereto and therefore finds that Sawitz did not
COLONIAL FASHIONS, INCORPORATED 1223
discharge Crump, Suber, Phelps, and Rogers or tell them in effect "Yes (they were
fired ) get out."
The Trial Examiner is convinced on the entire record that the four employees
sought out Sawitz on October 16 for the purpose of creating an incident which would
lead to their discharge and being intent on so being discharged they "jumped the gun"
not giving the Respondent an opportunity to discharge them, if it so desired. In so
doing they voluntarily quit their employment. Thereafter the Respondent was under
a limited obligation to tender them employment.
Having found that Anna Crump, Lucy Suber, Jean Phelps, and Mildred Rogers
were not unlawfully discharged by the Respondent the Trial Examiner will recom-
mend that the complaint be discharged insofar as it so alleges.
The Trial Examiner believes this finding to be strongly buttressed first by the inex-
perience of the four women both as union officers and as union members. Thus,
Crump joined the Union September 23, Suber on September 29, Phelps and Rogers
on September 30, and further by the following occurrence which transpired the same
morning.
Lillian Glass, who was employed as a sewing machine operator under Della Taylor,
testified that on October 16:
Well, I reported to work and a group of us were standing around talking
before the morning bell rang, and we knew that our union representatives were
to go to Mr. Sawitz and we knew that some of the others had gotten laid off due
to joining the union, so we discussed what we would do if these got laid off and
we all decided we would walk out-not all of us; some of us did. And then
the bell rang, and then we went to our machines, and went to work.
And Mrs. Bryant asked Della where Jean Rogers-I mean Jean Phelps and
Mildred Rogers were. We didn't see them. Jean was our floor girl. And she
said she didn't know, turned around and walked away.
And in a few seconds she came back and she said, "From what I understand,
you know all about it."
Q. To whom did she say this?
A. To Mrs. Bryant.
Q. Continue, please.
A. So then we got up and walked out. . . .
Glass continued:
. Then we went downstairs and Mr. Sawitz was in the cutting room. And I
asked him had he fired Jean Phelps and Mildred Rogers, and he said, "No,
Ma'am." I said, "You mean they have left of their own accord?" He said,
"Yes, Ma'am."
So we went out. We didn't know what to do. Stood around for a few min-
utes and then we went to our union representatives. And they advised us to go
back to work Monday. So we decided to send a telegram to our employer, Mr.
Sawitz, and they helped us to word it.
The telegram referred to was in fact sent, it reads:
.RA63 1953 Oct 16 PM 11 06
R.PTA175 LONG NLPD-PETERSBURG VIR 16-
MAX SAWITZ-
114 N UNION ST COLONIAL FASHIONS INC PETERSBURG VIR.
WE THE UNDERSIGNED WALKED OUT TODAY IN PROTEST AS A
CONCERTED ACTION TO PROTEST YOUR UNFAIR LABOR PRAC-
TICES AGAINST OUR FOUR (4) ELECTED OFFICERS. WE HAVE
BEEN APPOINTED TO OFFICE BY THE UNION ORGANIZERS AND
THIS WAS AN OFFICIAL ACT. WE STILL CONSIDER OURSELVES
BONA FIDE EMPLOYEES OF COLONIAL FASHIONS INC AND WILL
REPORT TO WORK ON MONDAY OCT 19 1953-
LILLIAN GLASS BESSIE BRYANT DOROTHY HAMLET
MARY CLARY-
On further examination by the General Counsel, Glass testified:
Q. When you spoke to Mr. Sawitz about the girls, or the officers, was any
reference made to the union by him or anyone else present?
A. If so, I don't remember, sir.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel then asked:
Q. (By Mr. Balicer.) Was any reference made by anyone at that time as to
for whom Phelps and Rogers worked?
A. I didn't make any statement; I don't remember. If they did, I don't
remember.
Q. Do you have any present recollection of any statement along those lines?
Trial Examiner PLOST: The witness has answered the question twice
already.
Q. (By Mr. Balicer.) Do you recall whether or not Mr. Sawitz said-
Mr. POLLARD: Objection.
Trial Examiner PLOST: Sustained.
On the theory that the witness had exhausted her recollection, the General
Counsel (over the objection of the Respondent) was permitted to examine the wit-
ness as follows by asking:
Q. (By Mr. Balicer.) Mrs. Glass, do you recall whether or not Mr. Sawitz
said at that time-
Mr. POLLARD: Objection.
Trial Examiner PLOST: Overruled.
Q. (By Mr. Balicer.) When you asked him whether they left of their own
accord, he replied, "If they work for the union, they can't work for me"-
The WITNESS: Now that you mention it, I do, but I didn't before.
Trial Examiner PLOST. What is that?
The WITNESS: Now that he mentions it, I remember it
Q. (By Mr. Balicer.) Did he say it or did he not say'it?
A. Yes, sir, he did say that.
Trial Examiner PLOST: What did he say?
The WITNESS' He said "If they work for the union they don't work for me."
The Trial Examiner admits that the error was his in admitting the testimony.
Glass further testified that she came to the plant on October 19, and met Earl Taylor
and Sawitz at the entrance:
And I told them, "Good morning." Earl Taylor said, "Where are you going?"
I said, "To work." He said, "No, you are not." I said, "You mean I am fired?"
He says, "No, you just don't have a job." I said, "Can I get my check?" He
said, "You come for your check Friday on the usual pay day." So we left.
The pay due her was mailed to her.
Bessie Bryant, corroborating Glass, testified she left the sewing room with Glass
and further testified that:
. . . Lillian Glass asked Mr. Sawitz, says, "Was Jean Phelps and Mildred Rog-
ers fired?" He said, "No." Says, "They are working for the union , not for me."
She testified she was also denied entrance of the plant on October 19, by Earl
Taylor.
Bryant also testified that on October 6, Della Taylor asked her if she had joined
the Union and was given an affirmative reply. On the entire record the Trial Exam-
iner finds that on October 6 Della Taylor inquired into employee Bessie Bryant's union
membership, and that by such inquiring, considered in connection with other conduct
of Della Taylor herein found violative of the Act, the Respondent has engaged in
conduct violative of Section 7 of the Act. The Trial Examiner further finds that this
conduct as found has no bearing on the 8 (a) (5) allegation of the complaint.
Mary Clary testified that "We had been talking . so we said if they send our
.union representative out that we were going to"; that she joined three other employees
in leaving , the morning of October 16; and that thereafter:
Us four-Lillian Glass, Dorothy Hamlet and Bessie Bryant, and myself sent the
telegram to Mr. Sawitz.
Clary further testified on cross-examination.
Mrs. Glass asked Mr. Sawitz did he fire Jean and he said. "No", that she left on
her own account. That was all was said.
Clary testified that she returned to the plant on Monday, October 19, but that Della
Taylor told her she could not go to work because "You quit."
Dorothy Hamlet, named as having walked out on October 16, and whose name
appeared on the telegram, did not testify.
Authorization cards for the Union were signed by Glass, Bryant, and Clary on
September 30. No authorization card signed by Hamlet was introduced.
COLONIAL FASHIONS, INCORPORATED 1225
With reference to any conversation he might have had on October 16 with Glass,
Bryant, and Clary as they left the plant, Sawitz testified:
Q. They testified that on their way out of the plant on October the 16th, they
stopped and had a conversation with you. Do you remember such a con-
versation?
A. I really don't. I don't remember them stopping and talking to me.
Q. It could have happened?
A. It might have happened. I wouldn't say yes; I wouldn't say no.
On the entire record, and`from his observation of The witnesses and.the nature of
their testimony, the Trial Examiner finds that Glass, Bryant, Clary, and Hamlet left
the plant together on October 16; that thereafter the Union sent the telegram herein-
before set out to the Respondent; and that thereafter Glass, Bryant, and Clary were
refused reinstatement by the Respondent.
Because of the nature of the testimony of Glass with respect to statements Sawitz
made to her and the others at the time they left the plant, considered together with
the testimony of Bryant, that Glass asked Sawitz, "Was Jean Phelps and Mildred
Rogers fired?" Glass not testifying to asking the question, and further considering
Clary's testimony that the question was asked but that Sawitz answered "No, that
she left on her own account, that was all was said," the Trial Examiner is persuaded
that Sawitz did not tell the departing employees with respect to Phelps and Rogers
"If they work for the Union, they can't work for me"-the version introduced into the
record by the General Counsel, or "if they work for the Union they don't work for
me," as finally adopted by Glass; or "They are working for the Union, not for me"
as offered by Bryant.
The departures in text, as well as the addition of the word "No" by Bryant and
Clark to the statement, is quite interesting.
Conclusion
The complaint alleges:
On or about October 16, 1953, Lillian J. Glass, Bessie Marie Bryant, Dorothy
Hamlet and Mary Clary , employees of Respondent employed at its Petersburg
plant, ceased work concertedly and went on strike.
The General Counsel argues in his brief:
The record is clear that the walkout of these employees constituted protected
activity and that at no time did they manifest any desire or intent to terminate
their employment relationship. The record further clearly establishes that
these employees were denied reinstatement solely because they exercised the
right guaranteed them by the Act.
The Trial Examiner cannot agree.
While it is true that the four above-named employees left in concert, there is the
question as to whether or not their concerted conduct was such activity as is pro-
tected by the Act:
Not all activities in which employees act together are "concerted activities"
within the meaning of the statute, the exact language of which is (29 U. S. C. A.
157):
Employees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities, for the purpose
of collective bargaining or other mutual aid or protection.
The words "concerted activities" are limited in meaning by the words with
which they are associated [noscitur a soctis], which have relation to labor
organization and collective bargaining , and by the purpose of such "concerted
activities" which is expressly limited by the immediately succeeding language to
concerted activities "for the purpose of collective bargaining or other mutual aid
or protection." 14
Neither is a "wildcat" strike protected.15
u Joanna Cotton Mtills v. N. L. R. B., 176 F. 2d 749, 752
15 N. L. R. B, v. Draper Corporation, 145 F 2d 199, 202, 203
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In a recently decided case, the United States Court of Appeals for the Fourth
Circuit 16 reaffirms its former-position that "concerted activity is protected only where
such activity is intimately connected with the employees' immediate employment."
To establish in the instant matter that the four employees were engaged in an un-
fair labor practice strike one must first look for the unfair labor practice allegedly
committed by their Employer. Here, immediately preceding their walkout, four
other employees had left the plant. The alleged strikers under consideration had no
knowledge as to whether these employees had been discharged, lawfully or unlaw-
fully, whether they had voluntarily quit, or whether they were or were not in the
building other than their sewing room. The four women evidently expected their
coworkers to be discharged. They were mistaken. But they proceeded to act as if
an unlawful discharge had really taken place.
The Trial Examiner has found that the first four employees were not discharged,
but voluntarily quit their employment. The Trial Examiner has inferred that these
employees, to borrow from the terminology of the criminal law, were engaged in
an effort to "entrap" the Respondent and in doing so "jumped the gun." It is evident
that the second quartet likewise "jumped the gun."
The Trial Examiner believes it fair to infer that both the walkouts on October 16
were part of a single plan which strongly points to an attempt to bring about a
strike.
In any event, had the Respondent really discharged any employee illegally then
the walkout in question would have been a protected concerted activity, in fact
an unfair labor practice strike as alleged in the complaint, but under all the cir-
cumstances herein, the fact that the alleged strikers did not know if an unfair labor
practice had been committed and in fact none had been committed, their conduct
did not amount to protected concerted activity, neither did the conduct of the first
four to walk out become protected concerted action.
Upon the entire record, and his observation of the witnesses, the Trial Examiner
finds that on October 16, 1953, Lillian Glass, Bessie Bryant, Mary Clary,,and
Dorothy Hamlet voluntarily quit their jobs with the Respondent.
The Trial Examiner is not in any way persuaded by this record that the Respond-
ent refused to reinstate those employees who quit on October 16, as herein found,
namely: Crump, Suber, Phelps, Rogers, Glass, Bryant, Clary, and Hamlet because
of their union membership or concerted activities. The Trial Examiner so finds.17
The Trial Examiner will therefore recommend that the complaint be dismissed
insofar as it alleges that the above-named employees were unlawfully discharged or
refused employment by the Respondent.
4. The discriminatory discharges of Mae Collier, Leuvinia Nicholas, and Evelyn
Rudd
Mae Collier testified that she worked on the third floor under Supervisor Edna
Madison; that at about 8.30 a. in. on October 16 because one of the employees
on the floor "had seen some of the girls [referring to the four who first called at
Sawitz' office] and had been told that they had been fired that morning" 18 she asked
Supervisor Madison for permission to call Sawitz to explain if anyone had been fired;
permission was granted; Collier went to Sawitz' office where, according to Collier,
Sawitz then accompanied her to the third floor where Leuvinia Nicholas said to him,
"I speak for the girls" and Collier added, "all the girls want to know"; Sawitz then
ordered the power shut off.
Collier testified
I said to the girls, "When I ask Mr. Sawitz about Lucy Suber and Anna,
I say, he told me that it was none of your business." He said "They weren't
fired; they quit " And then Mr. Sawitz took it and said, he says, "Yes. If they
16 N L R. B v. Bretz Fuel Company, 210 F. 2d 392.
17 In all events the record discloses that after October 16 the Respondent employed
only one new person, Mary Bailey, who did work which might have been given to Crump
and Suber Mary Bailey, employed on October 20, worked a total of 1011. hours. The
Respondent after October 16 employed 5 individuals who did work which might have
been given to the other 6 found to have quit. Three of these new employees were hired
October 20 and worked respectively 91, 70, and 71/i hours, 1 on October 27 who worked
971/ hours, and 1 on October 28 who worked 671A_ hours
"The Trial Examiner does not understand how it could have been possible that a
third floor worker had received such a report or seen the participants in the first walkout
found herein
COLONIAL FASHIONS, INCORPORATED 1227
are working for the union they are not working for me." He says, "The union
will take care of their business and I will take care of mine."
And Evelyn Rudd asked, she says, "Mr. Sawitz"-
Q. Is that "R-u-d-d"9
A Yes, she says, "Mr. Sawitz, did the two white girls on the second floor get
fired," and he says no one got fired, they quit. If they are working for the union
they are not working for me." He says, "Now, get back to work."
Leuvinia Nicholas corroborated the account of the above incident, but testified to a
rather more important role than given her by Collier. Nicholas testified:
So the girls gathered and Mr. Sawitz-I, said, "I speak for the girls." And Mr.
Sawitz said, "You speak for the girls? Why don't you speak for yourself in
general?"
I said, "I speak in general. I want to know was the girls fired." Mr. Sawitz
said, "Did they tell you that?" I said "No." He said, "How do you know." I
said, "I hear that the girls was fired." He says, "I advise you"-I can't tell you
definitely word for word, but he told me, advised me to ax them-and several
girls, different girls, spoke up and axed a question about another girl, Evelyn
Rudd-she spoke and axed-
Q. What was that name?
A. Evelyn Rudd. She axed-she said, "Well, the girls say you fired them."
He axed her "Did they tell you that?" She said, "No," but she heard that they
had fired them.
According to Nicholas, following Rudd's remarks, "Mae Collier, the one that went
downstairs , she come back. . .
If Nicholas' is credited in full then apparently Collier did not hear Nicholas'
or Rudd's remarks.
Evelyn Rudd testified that when she came in to work "they told me Lucy and Anna
got fired", that Collier went for Sawitz, that Sawitz spoke to the girls and she said
nothing; but Sawitz "He looked over at me and told me that they weren't fired. So
I didn't say anything to him. Somebody else said something to him."
If Rudd is credited, then neither Collier, who according to Nicholas was not present
when Rudd spoke but who however quoted Rudd, nor Nicholas, who also quoted
Rudd, can be credited.
Sawitz' testimony with respect to the above occurrence is so confused with testimony
regarding other talks he made, that the Trial Examiner is at a loss to fit the testimony
to this event. However, it is quite evident that there was such an occurrence on Octo-
ber 16, that Collier called Sawitz, that Sawitz spoke to the third floor employees, and
that Collier, Nicholas, and Rudd were present but just what each said, according to
the testimony of the other, is far from clear.
The Trial Examiner does infer from the testimony that the third floor operators
were expecting that the employees who went in to see Sawitz "before work" would
be discharged. The Trial Examiner believes that all the circumstances regarding the
October 16 affair on the third floor serves to support his inference that the entire
matter (the both walkouts found) was designed to cause a strike of the Respondent's
employees.
Collier further testified that in the morning of October 21, Supervisor Edna Madison
asked her and Evelyn Rudd, who worked beside her, to work overtime that night,
which they agreed to do; that later in the day Madison came to her and:
She said "Due to the fact that you did such bad work on the collars your
service is no longer needed. Don't bother to come back tonight and don't come
back tomorrow."
that Madison also said the same to Rudd who asked, "That means we are fired?" the
supervisor answered, "Yes."
Collier further testified that her primary work was "hemming" but that on October 9
she was put to making collars for blouse lot number 7904 and was on this work Octo-
ber 9 and October 12; that 10 employees were making these collars on October 12;
that she was given no instructions how to make the collar but after having completed
the first one she took it to Madison who told her, "Yes that is right," and that at no
time while she was working on the collars was she told that anything was wrong with
her work.
Collier further testified, without contradiction and with corroboration, that each
operator put a ticket on her finished work which served to identify it and that this
ticket remained on the work until it reached the buttonhole department when all pos-
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sibility of identification was lost because there the identifying tickets were removed.
She testified:
In the buttonhole department. And you can find them all over the floor any-
where. Because the girls there when they open a bundle-and they are all work-
ing together-they count their work, and that is where the work gets all mixed up.
Collier further testified:
'Well, that day, that morning, after we had started-to work-about half an-hour
after we had started to work, our floor lady, Edna Madison, brought six pressed
blouses over to my machine and she Paid them on top of my work, between
Evelyn Rudd and myself, and she says, "I want to show you these blouses. The
boss is very disgusted with them. They are all made wrong. The whole lot is
ruined."
Madison also called over Leuvinia Nicholas to whom she showed the blouse; that
Nicholas asked Madison to call Sawitz "because we weren't the ones that made the
collars." Sawitz did not answer the request.
Collier testified that it was after this conversation that Madison asked her to work
overtime.
Madison was not called. Collier's undenied testimony is credited by the Trial
Examiner.
Evelyn Rudd was discharged on October 21. She testified that "about two weeks"
before her discharge her supervisor, Edna Madison, put her to making collars for
blouse lot number 7904; that she worked at this for about 1% days; that she had
never made collars before; that Madison said nothing to her about the collars she
made while she was working at this task; and that on October 21 she was discharged.
Her testimony with respect to the statement that Sawitz had said the work was bad
and the later request to work overtime and the discharge corroborates Collier in all
respects and is credited by the Trial Examiner.
Leuvinia Nicholas testified she was placed on making collars for lot number 7904
by Edna Madison; that she asked Madison "how was these collars" which she had
made and was told, "You are doing fine."
Regarding the discharge of October 21, she corroborated Collier and Rudd in all
respects testifying that Collier, Rudd , and she were discharged together. The Trial
Examiner credits Nicholas.
Sawitz testified he discovered the collars on lot number 7904 were improperly
made at the time he made a personal inspection of the lot and that "on the 16th of
October when I examined the collars I looked for everything else"; that he discov-
ered some defects in the sewing but the real defect was the collars which were made
wrong; that he showed the work to Madison and ordered her to discharge all the
girls who had made the collars; that six operators had made the collars namely,
Collier, Rudd, Nicholas, Lucy Suber, Junella Jackson, and a Miss Kelly; that Suber
had quit and that Jackson and Kelly were not discharged; that the entire lot was
repaired but that before it was shipped the "manufacturer" 19 telephoned him regard-
ing shipment and that Sawitz told him, "Yes. And I told him I am in a little bit
difficulty with them, and, they came through bad, badly done; that they come
through a little bit bad"; and that after the garments were delivered the customer
charged him for the shipment which consisted of 150 dozen garments for which the
Respondent was to receive a $5 per dozen manufacturing fee.
Sawitz testified:
Trial Examiner PLOST: Has he charged you for this lot of 150 dozen blouses?
The WITNESS: Yes.
Trial Examiner PLOST: He has charged you for them?
The WITNESS: Yes.
Trial Examiner PLOST: Have you paid the charge?
The WITNESS: No.
Trial Examiner PLOST: How much is the charge?
The WITNESS: About $4500.
Trial Examiner PLOST: $4500?
The WITNESS: That is correct, sir.
Trial Examiner PLOST: That means-how much a dozen for these blouses?
The WITNESS: About-150 dozen-about-let's see-about $15 per dozen.
19 The Respondent operated as a "contract" house, meaning that its customers owned
and furnished the materials, the Respondent furnished only labor and manufactured gar-
ments on contract.
COLONIAL FASHIONS, INCORPORATED 1229
The Trial Examiner then pointed out that the figures did not seem correct . Sawitz
then testified that the charge was $30 per dozen and finally testified:
Trial Examiner PLOST: He charged you $30 a dozen for the blouses?
The WITNESS : There was a $4500 charge that came back. Whether it was
entirely for this lot-he had some lots before that he had trouble with-however
he charged it up-I have a charge from him for about $4500-this particular
lot, I don't remember how many he charged back for them.
Sawitz first testified , "I know he [the customer ] sold them for $2.98 [each]."
However after he changed his original testimony with respect to the charge made by
the customer, he again changed his testimony with respect to the customer 's selling
price:
The WITNESS: Yes; might be a $5.98 blouse . I don 't know exactly what he
sells the blouse for.
Trial Examiner PLOST: You don't know what it sold for?
The WITNESS: If it was a $3.75 blouse he probably charged me $30 for it.
According to Sawitz ' testimony he discovered the bad collars on October 16 and
ordered the discharge of all the employees who had made them. The discharges
were made October 21.
There is no dispute that the collars were made on October 9 and October 12, or
that Madison found no fault with the work of the three dischargees at the time they
did the work.
Sawitz' testimony regarding the Respondent 's, loss by'reason of the bad work on
the collars was not substantiated by either the Respondent's books 20 or by the
customer.
If only six employees made the collars, regardless of whether or not their work
could be distinguished , and if all the collars were defective and all were ordered
discharged the Trial Examiner fails to understand why neither Jackson nor Miss
Kelly were not discharged together with Collier, Rudd, and Nicholas.
The Trial Examiner finds Sawitz' testimony with respect to lot number 7904 to be
incredible.
The Respondent called four witnesses to support Sawitz' testimony regarding lot
number 7904.
Earl Taylor testified:
Q. (By Mr. Pollard) You have testified that you knew that Job 7904 was
particularly bad. How would you know?
Mr. BALICER: Objection.
Trial Examiner PLOST: Answer the question.
The WITNESS: Well, I was looking over some of the work transferring it from
one box to another; a large box with wheels on them-we call them boxes-and
I notice these collars . They were very poorly stitched around; they wasn't round;
more on a square shape.
I begin to look at it. I found the majority of it was that way.
This is the extent of Taylor's testimony on this matter. It will hardly be contended
that it has probative value.
Elizabeth Wright who together with Ethel Brown folded all finished garments,
testified that the majority of the collars on 7904 were badly made and that she took
practically all of the 150 dozen in the lot to Madison as defective. She could not fix
the date she handled the lot other than being in October. She further testified that
Lucy Suber, Nicholas, and Rudd made the collars and that they were so engaged for
2 days, testifying as follows:
Q. The girls who were making the collars did nothing but collars all the first
day?
A. I guess so.
Q. Did they work on making collars all the second day?
A. I don't know.
Q. You don't know at all what they did the second day, do you?
A. No.
Q. You went back and took blouses back to Edna Madison the second day,
didn't you?
A. I guess they had to be repaired, the ones that she took back. I guess so.
Q. So that the first day you noticed that the girls were working on collars,
making them , but the second day you didn't; is that so?
21 Sawitz however testified that the books were in New York.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I knew before the blouses came through it was work on the collars.
Q. You knew before the blouse came through?
A. Yes.
Q. How did you know that?
A. Because when I go back; you can see who is working on what.
Q. You didn't see who was working on them the second day, did you?
A. The second day I didn't pay too much attention because I knew from the
style who was making collars.
Ethel Brown, who worked together with Wright, testified that as a folder she re-
ceived the completely finished garment and if any defects were apparent she took the
defective garment to Supervisor Madison; that she knew the collars "on a job in
October" were "bad"; that she saw Edna Madison taking this work back for repair
to Lucy Suber and Leuvinia Nicholas.
Carrie Miles testified that she worked at repairing defective collars and knew that
the only girls who made these collars were "Leuvinia, Evelyn, and Mae," testifying:
Trial Examiner PLOST: Tell us how you know that those girls worked on these
collars.
The WITNESS: Because that they were laid off. They were laid off; the floor
girl told us they were laid off, but before, they did 150 dozen collars wrong.
Trial Examiner PLOST: Then your testimony is that you know that these girls
who you named, these three girls worked on these collars?
The WITNESS: Yes.
Trial Examiner PLOST: Because the floor lady told you?
The WITNESS: In fact, I worked right behind them.
Trial Examiner PLOST: Did you see them work on these collars'?
The WITNESS: I saw them.
Trial Examiner PLOST: All of them?
The WITNESS: Yes, and they were all experienced operators.
It seems very strange that no one reported to Sawitz that the 150 dozen blouses had
defective collars but left him to find them himself on October 16, and ordered the
discharge of all the operators making them, only to have the discharges made on
October 21, and then not all of them, as ordered.
If the Respondent sought to support Sawitz by the testimony of Earl Taylor, Wright,
Brown, and Miles, it surely leaned on a broken reed.
On the entire record, and from his observation of the witnesses, the Trial Examiner
finds that the Respondent did not discharge Mae Collier, Leuvinia Nicholas, and
Evelyn Rudd because they spoiled certain collars they were making, but discharged
them on October 21, 1953, for other reasons not disclosed to them by the Respondent.
However, inasmuch as the reason advanced for the discharges is spurious the Trial
Examiner can only infer that the real reason is the one advanced by the General
Counsel and therefore finds that the Respondent discharged Collier, Nicholas, and
Rudd because of their membership in and activities on behalf of the Union. Thereby
the Respondent has discouraged membership in a labor organization by discrimination
in regard to the hire and tenure of employment of employees in violation of Section
8 (a) (3) of the Act.
Conclusions as to the Alleged Refusal to Bargain Discussed in Section III A, above
The Trial Examiner has found that on October 2, 1953, the Respondent, through
Sawitz' talk to its employees, notified them "that they were free to join the
union . . . and those who did not join a union could do so as well."
On October 23 the Respondent sent a letter to each of its employees in which it
stated:
We want each one of our employees to know that they are free to join the
Union or not to join the Union. It is a decision that is to be made freely by
each employee. Your status with the Company will not be affected whether
you join the Union or not, as your Company will not discriminate' against any
one because of membership or nonmembership in the Union.
Likewise on October 23 the Respondent wrote the Union expressing its doubt of
majority and suggesting an election, as fully set out in section III A 1, above. Under
date of October 23, the Union sent its reply, which the Trial Examiner has found to
be the first time the Union requested recognition and bargaining but hedged its re-
quest with its insistence that the representative of the Board be present at the
requested meeting.
COLONIAL FASHIONS, INCORPORATED 1231
On October 21, 2 days before the Union's letter above mentioned, which letter was
sent in reply to the Respondent's expressed doubt and suggestion that a Board election
be held, the Respondent discriminatorily discharged three employees.
Query: Does this unfair labor practice found to be in violation of Section 8 (a) (3)
of the Act so taint the Respondent's conduct as to compel a finding that its expressed
doubt of the Union's majority was vitiated by lack of the good faith necessary to
support such an expression, and automatically make the Respondent liable on the
8 (a) (5) allegation as having refused to bargain with the Union inasmuch as the
Union's majority in fact existed?
In the Artcraft Hosiery case 21 the Board set forth the following doctrine:
We have held, and still hold, that an employer may in good faith insist on a
Board election as proof of the union's majority but that an employer unlaw-
fully refuses to bargain if its insistence on such an election is motivated, not by
any bona fide doubt as to the union's majority, but rather by a rejection of the
collective bargaining principle or by a desire to gain time within which to
undermine the Union.2 The crucial issue in these cases is the Employer's mo-
tive at the time of the refusal to bargain. Whether in a particular case an em-
ployer is acting in good or bad faith, is of course a question which of necessity
must be determined in the light of all the relevant facts in the case. Among
the factors pertinent to a determination of the employer's motive at the time of
the refusal to bargain are any unlawful conduct of the employer,3 the sequence
of events, and the lapse of time between the refusal and the unlawful conduct.
9 Chamberlain Corporation, 75 NLRB 1188; It. J. Lovvorn, 76 NLRB 84; Roanoke
Public Warehouse, 72 NLRB 1281, 1284.
8R. J. Lovvorn, supra; Prigg Boat Works, 69 NLRB 97, 123; Robeson Cutlery
Company, Inc., 67 NLRB 481; Wilson & Co., Inc, 77 NLRB 959. The weight to be
given this factor depends on the nature and scope of the unlawful conduct. . .
In view of the Respondent's statements to its employees as early as October 2,
the Trial Examiner does not believe that this record can sustain any contention that
the Respondent showed any other hosility toward union organization than the legally
permissible opposition not tinged by threat or coercion.
On the contrary the Trial Examiner is persuaded that the record is replete with
suggestion that the Union from October 2 on was seeking the means of establishing
its majority through an 8 (a) (5) charge and declined to take advantage of the simple
method provided through the filing of a 9 (c) petition for an election to determine
representatives. Had the Union filed a 9 (c) petition, the celerity with which such
matters are now processed should undoubtedly have put the parties at the bargaining
table long before many of the matters herein advanced as unfair labor practices could
have occurred and perhaps obviated the instant hearing.
The Trial Examiner believes that the recent cases, Poe Machine & Engineering
Company, Inc.,22 and Walmac,23 are in point. To paraphrase Walmac: An em-
ployer "normally" has the right to insist upon a Board-ordered election before rec-
ognizing a union which claims majority status. Second, the employer had a "doubt"
as to the union's majority status despite the number of authorization cards held by
the union. Third, the commission of unfair labor practices after refusing to recog-
nize a union does not automatically establish a refusal-to-bargain charge.
Upon the entire record the Trial Examiner is unable to reach the conclusion
urged by the General Counsel that the Respondent chose to insist upon a Board-
ordered election-which normally is its right-because it was in bad faith motivated
by an intention unlawfully to refuse to bargain with the Union. Accordingly, on the
basis of the entire record, the Trial Examiner not being persuaded that the General
Counsel has sustained the burden of proving that the Respondent's refusal to recog-
nize the Union as majority representative and its refusal to bargain.with the Union
constituted a violation of Section 8 (a) (5) will recommend that the complaint be
dismissed insofar as it so alleges.
Final Conclusions
Upon all the foregoing, the entire record, the evidence considered as a whole, and
his observation of the witnesses, the Trial Examiner finds that:
21 .4rtcraft Hosiery Company, 78 NLRB 333
n 107 NLRB 1372
0The Walmac Company, 106 NLRB 1355
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. By the statements of Supervisor Della Taylor, as found herein to have' been
made to employees Mabel Beasley, Veronica Hagen, Martha Leach, Martha Thrash,
and Bessie Bryant, the Respondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act.
2. By discharging Mae Collier, Leuvinia Nicholas, and Evelyn Rudd on October
16, 1953, as herein found, the Respondent has descriminated in regard to their hire
and tenure of employment, discouraged membership in a labor organization in vio-
lation of Section 8 (a) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in-con-
nection with the operations of the Respondent set forth in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom and take certain af-
firmative action to effectuate the policies of the Act.
Having found that the Respondent discriminatorily discharged Mae Collier,
Leuvinia Nicholas, and Evelyn Rudd it will be recommended that, the Respondent
offer to all of them immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or other rights and
privileges, and that each be made whole for any loss of pay she may have suffered
by reason of the discrimination against her, by payment to each of them of a sum
of money equal to that which each would normally have earned as wages from the
date of the discrimination to the date of the Respondent's offer of reinstatement, less
her net earnings during such period.24 The back pay shall be computed in the manner
established by the Board,25 and the Respondent shall make available to the Board
its payroll and other records to facilitate the checking of amounts due.
The preventive purposes of the Act will be thwarted unless the recommendations
are coextensive with the threat contained in violations of the Act herein found.
It will therefore be recommended that the Respondent cease and desist from infring-
ing in any manner upon the employees' rights guaranteed in Section 7 of the Act.
Upon the foregoing findings of fact, and upon the entire record in the case, the
Trial Examiner makes the following
CONCLUSIONS OF LAW
1. Colonial Fashions, Incorporated, Petersburg, Virgina, is engaged in commerce
within the meaning of the Act.
2. International Ladies' Garment Workers Union, AFL, is a labor organization
within the meaning of Section 2 (5) 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 (a) (1) of the
Act.
4. By discriminating in regard to the hire and tenure of employment of Mae
Collier, Leuvinia Nicholas, and Evelyn Rudd thereby discouraging membership in
a labor organization, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
6. The Respondent has not engaged in any of the other unfair labor practices al-
leged in the complaint as violations of Section 8 (a) (1), (3), or (5) of the Act and
it is therefore recommended that the complaint be dismissed insofar as it so .alleges.
[Recommendations omitted from publication.]
b' Crossett Lumber Company, 8 NLRB 440.
25 F TV Woolworth Company, 90 NLRB 289