Curtis Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1971

189 N.L.R.B. 192 (N.L.R.B. 1971)

192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Curtis Manufacturing Co., Inc. and Amalgamated
Clothing Workers of America, AFL-CIO. Case
12-CA-4259
March 22, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 22, 1970, Trial Examiner Samuel Ross
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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 Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Curtis Manufacturing Co., Inc.,
Orlando, Florida, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.2
1 In agreeing with the Trial Examiner that Respondent violated Section
8(a)(l) of the Act by threatening employees with economic reprisals if they
persisted in claiming waiting-time pay, we do not rely on those instances,
described in the Trial Examiner's Decision, in which Respondent told
employees to stop claiming waiting-time pay because they would not be
paid for it and that Respondent was not required to pay for waiting time
2 In footnote 49 of the Trial Examiner's Decision, substitute "20" for
"10" days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Trial Examiner: Upon a charge filed June
17, 1968, and amended on June 26 and July 1, 1968, by
Amalgamated Clothing Workers of America, AFL-CIO
(herein called the Union), the General Counsel of the
National Labor Relations Board issued a complaint on
October 21, 1968, amended on November 10, 1969, which
alleges that Curtis Manufacturing Co., Inc. (herein called
the Respondent or the Company), had engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the
Act. The Respondent filed an answer to the amended
complaint which denies the substantive allegations of the
complaint, sets forth several affirmative defenses, and
denies the commission of unfair labor practices.
Pursuant to due notice, a hearing in this case was
conducted before me at Orlando, Florida, on December 16,
17, and 18, 1969. Upon the entire record, and my
observation of the witnesses and their demeanor, and after
due consideration of the brief filed by the Respondent, I
make the following:
FINDINGS OF FACT
I. COMMERCE
The Respondent is a Florida corporation whose
principal place of business is located in Orlando, Florida,
where it is engaged in the manufacture of men's trousers.
The Respondent admittedly purchases and annually
receives goods and materials valued at in excess of $50,000
directly from places outside the State of Florida. The
Respondent concedes, and I find on the above admitted
facts, that it is engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this case are:
(a) Whether or not the Respondent restrained and
coerced its employees in the exercise of their rights under
the Act by the statements and conduct of its president
which will be described hereinafter. To a great extent, the
allegedly unlawful statements and conduct are denied by
the Respondent's president. There is thus presented for
resolution both the issue of credibility of witnesses, and also
whether the statements and conduct, if made or engaged in,
constitute restraint or coercion within the meaning of
Section 8(a)(1) of the Act.
(b) One employee admittedly was fired by Respondent,
and another allegedly was also fired. The Respondent
contends that the second employee quit. The complaint
alleges that the Respondent's termination of these two
employees was motivated by antiunion considerations. The
Respondent contends that it fired one employee for cause
and that its conduct in respect to the second employee was
based on a nondiscriminatory policy. There is thus
presented primarily the resolution of credibility of witness-
es.
189 NLRB No. 38
CURTIS MANUFACTURING CO. 193
(c) The third issue presented by this case is whether the
Respondent , in violation of Section 8(a)(5) of the Act,
unilaterally changed the terms and conditions of employ-
ment of its employees by refusing to pay them "waiting
time" allegedly required by the terms of the contract
between the Respondent and the Union.
The Respondent also contends that the Board should
defer the exercise of its jurisdiction over the matters here
involved because of the pendency of arbitration proceed-
ings between the parties regarding these and other subject
matters.
B. Background
On September 25, 1967, after a Board-conducted election
at which the Union received a majority of the valid votes
cast, the Board certified the Union as the exclusive
collective-bargaining representative of the Respondent's
employees in the following appropriate unit:
All employees employed by the Employer at its plant
located at 625 Wilmer Avenue, Orlando, Florida;
excluding all office clerical employees, guards and
supervisors as defined in the Act.'
The Union's victory at the Board election was achieved
notwithstanding vigorous opposition by Respondent which
included: Threats to employees of plant closure, discharge,
layoffs and other reprisals to discourage union activities;
inquiries seeking to determine the identity of the union
ringleaders; creating the impression that the employees'
union activities were under surveillance; and the discharge
of one employee because of her known or suspected union
activities. In a prior case, the Board found that the
Respondent by this conduct engaged in violations of
Section 8(a)(1) and (3) of the Act,2 and its Decision and
Order has been affirmed and enforced by the Court of
Appeals for the Fifth Circuit.3
On December 4, 1967, after its certification as the
representative of Respondent's employees, the Union and
the Respondent entered into a collective-bargaining
contract for a term of 3 years with the expiration date of
November 30, 1970.
C. Alleged Interference, Restraint, and Coercion of
Employees
According to the complaint, after the Respondent
executed its collective-bargaining agreement with the
Union, it continued during the first 4 months of 1968 to
engage in numerous acts of interference, restraint, and
coercion of employees in violation of Section 8(a)(1) of the
i Case l2-RC-2882
2 Curtis Manufacturing Co, Inc, 172 NLRB No 112
3 N L R B v Curtis Manufacturing Co, Inc, 421 F 2d 1335 (C A 5)
4 Blake 's version of this conversation was that when Heller reported
Fields' smoking infraction, he replied that he "would take care of it" Blake
denied telling any employees that they "would have difficult working
conditions," or that "they would eventually be terminated because of union
activities " Blake also denied that he told Heller that she "would be
discharged if she continued to process grievances " I do not credit Blake's
testimony or conclusionary denials above because I regard him as an
evasive witness whose testimony occasionally was self-contradictory,
lacked candor, and was tailored to what he regarded as in his best interest
Act. These alleged violations will be considered and
determined seriatim.
a. Myra Heller was the Union's "chairlady" at the
Respondent's plant. In January 1968, Heller and another
then employee, Billie Earwood, complained to Respon-
dent's President Lawrence Blake that another employee,
Louis Fields, was smoking in a working area contrary to the
Company's rules. According to the credited testimony of
Heller and Earwood, Blake told them to mind their own
business, that it was his plant and he would run it to suit
himself, and that "your stinking union can stay out of my
affairs." Blake also said to Heller that she "was the one that
caused the [union] mess," that she "wanted the place run
like a prison and that is exactly what you are going to get,"
and that if she left her machine "one more time, you will go
out the door." 4
Blake's statements to Heller and Earwood implied that
working conditions in the plant would be more onerous
(like a prison) because of the union mess, and thus clearly
were coercive. Moreover, under the Respondent's contract
with the Union, Heller, as the union "chairlady," was
authorized to take up "disputes" with Blake, and the threat
to fire her if she carried on this function interfered with,
restrained, and coerced employees in the exercise of their
rights under the Act. I therefore find that by these
statements of Blake, the Respondent violated Section
8(a)(1) of the Act.
b. On February 7, 1968,5 Respondent's employee
Bernice Hobby was out sick for a day. When Hobby
returned to work the next morning, her timecard was not in
the rack, and on inquiry, she was told by Respondent's
office manager, Adrian Shore, that she would have to wait
for Mr. Blake to arrive because she did not have a doctor's
certificate for her previous day's absence. While Hobby
waited, she asked Union Chairlady Myra Heller to assist
her, and when Blake came in, Hobby asked him for her
timecard. Blake replied that she needed a doctor's
certificate first. Heller asked why a doctor's certificate was
required of Hobby when it was not required of others, and
she also asked him when "he was going to live up to the
contract [with the Union]." Blake replied, "Don't hold
your damn breath until I do."6 Blake nevertheless
permitted Hobby to go to work without producing a
doctor's certificate for her absence.
The complaint (par. 9(c)) characterizes Blake's statement
to Heller as an announcement that "he would not honor the
terms of the collective bargaining agreement," and it alleges
that the Respondent thereby restrained and coerced
employees within the meaning of Section 8(a)(1) of the Act.
I find merit in this allegation. Regardless of whether
Respondent's requirement that employees must furnish a
rather than accuracy Conversely, although Heller clearly was antagonistic
to Respondent, her testimony, notwithstanding her bias, was corroborated
in most respects by other witnesses, like Earwood, whom I regard as
reliable and credit
5 All dates hereinafter refer to 1968 unless otherwise noted
6 The findings above are based on the credited testimony of Bernice
Hobby, Myra Heller, Doris Smith, and Betty Roberson, all of whom
testified that they heard Blake make this statement Blake's only testimony
regarding this incident was a denial that he made the quoted statement
attributed to him by the credited witnesses Since I regard Blake's
testimony as generally unreliable, I do not credit his denial
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doctor's certificate after a 1-day absence for illness was
either reasonable or permissible under the contract with
the Union, Blake 's statement to Heller in the presence of
other employees clearly implied that he did not intend to
abide by the contract 's terms, and thus conveyed to
employees the futility of their representation by the Union,
tended to undermine the Union' s representative status, and
thus interfered with, restrained , and coerced employees in
the exercise of their rights guaranteed by the Act to be so
represented. Accordingly, I find that by that statement,
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
c. According to Myra Heller's credited testimony, on
April 30, Blake told her that he had been pushed around by
the Union for 6 months, and that "now I am going to do
some pushing." 7
The complaint (par. 9(e)) alleges that by this statement,
the Respondent further violated Section 8(a)(1) of the Act.
Blake 's statement clearly implied that he intended to
impose stricter working conditions upon employees be-
cause of the Union, and I therefore regard it as further
interference , restraint , and coercion of employees violative
of Section 8(a)(1) of the Act.
d. The contract between Respondent and the Union
provides in article XIII, paragraph (D) that the Company
will grant a leave of absence for a maximum of 7 days to
one employee in each department to attend union
conventions or meetings, provided that proper notice is
given to the Company and that the persons designated to
attend are not "performing the samejob."
On April 18, at a meeting of the local Union, three
employees were elected to attend a union convention
scheduled to be held on May 3 at Atlanta, Georgia. The
three employees designated to attend the convention were
Elizabeth Crews and Betty Roberson as delegates, and
Catherine Smith as alternate According to the credited
testimony of Eva Lafever, a business agent of the Union, on
the following Monday, April 22, she notified Blake of the
foregoing and he said "all right."s On April 30, Lafever
notified Blake that Roberson was unable to go and that
Catherine Smith, the alternate, would go in her place. On
the afternoon of Thursday, May 2, Crews and Smith went
to Blake 's office and told him that they were going to the
union convention in Atlanta the next day, and that they
would be back to work the following Monday. Blake
replied , "You had better be here in the morning." The two
employees repeated that they would see Blake on Monday,
and he admittedly responded that if they did, "they might
not have a job on Monday." As a result, Crews and Smith
apparently did not attend the union convention.
The complaint (par. 9(g)) alleges that the Respondent
violated Section 8(a)(1) of the Act by "refusing to grant two
employees time off to attend a union meeting and
threatening them with discharge if they attended said
Blake denied making this statement but I do not credit his denial
s Blake denied receiving notice of the planned attendance of employees
at the convention until May 2, but I regard Lafever's testimony to the
contrary as more reliable
9 As previously noted (see In 8, supra ), Blake also claimed that he did
not receive timely notice of the intention of the two employees to attend
the union convention
10 The Board's authority to interpret contracts in connection with its
meeting." Blake's explanation for his refusal to grant these
employees the requested leave of absence is that both
Crews and Smith "did the same operation," and that
therefore he was justified by the terms of the union contract
in refusing to permit "two people in one unit or operation
[to] leave the plant at the same time."9
The issue of whether the Respondent violated Section
8(a)(1) of the Act by Blake 's admitted refusal to grant
Crews and Smith a leave of absence to attend the union
convention involves primarily the interpretation of the
labor contract between the parties,10 and also the
motivation for the refusal. For the reasons hereinafter
stated, I find that the Respondent by this conduct
interfered with, restrained, and coerced employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Most (60) of the Respondent's 80 employees work in its
sewing department. Crews was one of two "utility girls"
employed by Respondent in that department. Her job
consisted of performing any sewing or other work which the
Respondent required, including seaming work. Smith, on
the other hand, performed only one operation in the sewing
department, that of side seaming, a job which also was
performed by "several" other of Respondent's employees.ii
The work of Crews and Smith thus appears, at least prima
facie, to have been different. Blake's only testimony
regarding the nature of the work performed by Crews and
Smith was his conclusion that they "both did the same
operation." I regard that conclusion as unworthy of any
probative value and do not credit it, and I find that Crews
and Smith were not "two persons performing the same job"
within the meaning of the contract.
The leave which Crews and Smith requested involved an
absence from Respondent's plant for only 1 working day
(Friday, May 3). Blake gave these two employees no
explanation or reason for his refusal to grand the requested
leave. He quite obviously resented and was and still is
strongly opposed to the representation of his employees by
the Union. In the light of that union animus, and the
baseless reasons, asserted for the first time at the hearing,
for the refusal to grant the requested leaves of absence, I am
persuaded and find that it was motivated solely by hostility
to the Union. I therefore conclude that it, and the threat to
discharge Crews and Smith if they attended the convention,
constituted unlawful restraint and coercion of employees
within the meaning of Section 8(a)(l) of the Act.
D. The Respondent's Failure and Refusal to Pay
Employees for Waiting Time
The collective-bargaining contract between the Respon-
dent and the Union which was executed on December 4,
1967, contains the following provision regarding the
payment of waiting time to piecework employees.12
(G) An employee paid on a piece rate basis who is
required to wait for work due to machine breakdown or
determination of whether or not an unfair labor practice was committed
was expressly upheld by the Supreme Court in N L R B v C & C Plywood
Corp, 385 U S 421
11 The findings above are based on Crews' uncontroverted and credited
testimony
12 See article IV, subpar (G), p 5, of Exh A attached to the
Respondent's answer which is G C Exh 1(z)
CURTIS MANUFACTURING CO.
other causes beyond his control, shall be compensated
at the rate of his average hourly earnings, for all such
waiting time in excess of a total of twenty minutes per
day. Any employee who finds it necessary to wait for
work shall on each separate occasion, notify his
immediate supervisor both at the beginning and the end
of such waiting period. Payment for waiting time shall
cover only such time as follows such notification. The
employer may transfer such employee to another
machine or job during such waiting, in which event the
employee shall be paid his actual piece rate earnings or
average hourly earnings, whichever is greater.
The piece rate employees of Respondent to whom this
provision applies turn in daily production slips to the office
on the basis of which their earnings are computed. In
January and February 1968, seven of Respondent's
piecework employees turned in production slips on which
they claimed compensation for waiting time under the
contract.13 According to the testimony of these employees,
they complied with the notice provisions of the contract
before claiming waiting time, but their production slips
claiming pay for waiting time were returned to them by
Office Manager Adrian Shore,14 by Nell Cobia, the
supervisor of Respondent's sewing department,15 or by
President Blake. In each instance, according to the credited
testimony of the employees, they were told either by Shore,
Cobia, or Blake to rewrite their production slip and omit
the claim for waiting time pay or they would "get no pay for
it." Grimes was told by Blake, "Don't turn this paper [a
production slip claiming waiting time pay] in again. You
are not getting paid for waiting time." Wilson was told by
Blake that the waiting time provisions of the collective-
13 The seven who so testified were Pearl Cotton, Fay Grimes, Addie
Wilson, Nellie Rodgers, Doris Smith, Mary Griffin, and Irene Trail
14 Shore is a part owner of Respondent and a brother-in-law of President
Blake
15 The Respondent' s witness Nell Holmes is the same person whom the
employees referred to as Nell Cobia.
16 Blake admitted that he returned production slips which claimed
waiting time pay to Wilson, Grimes, and Trail, and that he did not pay any
employee for the waiting time they claimed He denied, however, that he
told these or any other employee that they would not be paid for the work
they had performed if they persisted in their claim for waiting time pay In
addition, both Shore and Cobia denied that they had returned any
production slips with waiting time claims to the employees, and denied
having any conversations with them regarding the subject of waiting time I
do not credit the denials of Blake, Shore, and Cobia for the following
reasons
Both Blake and Shore testified that the production slips which claimed
pay for waiting time listed a series of small numbers of from one to not
more than five , and a total Shore also testified that he could not tell from
the numbers whether they referred to "minutes, dollars or what." However,
one employee, Addie Wilson, kept a carbon copy of her production slips
which claimed waiting time (G C Exh. 10(a) and (b)), and contrary to the
testimony of Shore and Blake, the slips clearly disclosed the specific time
when each waiting period began and ended, and that these periods vaned
from a low of 4 minutes to a maximum of 25 minutes. Moreover, contrary to
Shore's categorical denial that he returned any of the waiting slips to the
claimant employees, his affidavit to the Board executed 1-1/2 years earlier,
stated, "I don 't recall whether I took any waiting time slips back to the
employees who had handed them in, although I might have " For these
reasons, as well as demeanor, I regard Shore's denial and testimony
generally as unworthy of credence
Cobia testified that she was present (in February) when Blake returned
Trail's production slip which claimed waiting time pay, and when Blake
instructed Trail to rewrite it Later Cobia contradicted the foregoing by
testifying that she first learned that Trail "had requested waiting time pay"
at a grievance meeting in March In addition, Cobia's testimony, that she
195
bargaining contract did not apply to him and that he did
not have to pay for waiting time . Rodgers was told by
Blake that if she did not rewrite her production slip and
omit the waiting time claim, she "would not be paid for the
day." After one or two unsuccessful attempts by each of
these seven employees to get paid for waiting time, with the
results described above, all of the Respondent's employees
desisted from thereafter making claims for such pay.16
The complaint in this case alleges that the Respondent
violated Section 8(a)(1) of the Act by threatening the
claimants for waiting time pay with loss of pay for the work
they had performed if they persisted in being paid for
waiting time. As noted above, I have found contrary to the
denials of Blake, Shore, and Cobia that the threats were
made. Moreover, it is undisputed that as a result no further
claims for waiting time have been made since February
1968.
It is well settled that an employee who asserts a claim
pursuant to a collective agreement is engaged in further-
ance of the same concerted activities which resulted in the
making of the agreement.17 It is thus quite apparent that
whether or not the employees' waiting time claims had
merit, the claimants were engaged in a protected concerted
activity when they asserted their rights to waiting time pay
under the contract. Accordingly, even assuming that the
claims which the employees asserted had no merit, the
Respondent could have refused to honor them, but it had
no lawful right to threaten the employees with reprisal for
engaging in the protected concerted activity of making the
claims. Is Accordingly, I conclude that by the threats found
above, the Respondent interfered with, restrained, and
had not returned any production slips to employees, was contradicted by
Blake who testified that he had given her "one of the slips and told her
[Cobfa] to take it back to the girl and have her write it over, rewrite it" In
view of these and other contradictions in her testimony, as well as
demeanor, I regard Cobia's denial and testimony as generally unreliable
At the time these claims for waiting time pay were being made, Blake
admittedly was under an erroneous impression that his only liability for
waiting time pay was for that which resulted from machine breakdown
Blake also was then angry because many of the very same employees who
were claiming waiting time pay were frequenting the ladies room for a
smoke See Resp . Exh 3 and 4 In this regard , Blake testified that one of
the reasons he refused to pay waiting time was that the employees did not
offset against their claims the time they spent in "the bathroom and other
things. This is time off also" All of the foregoing, and my appraisal of
Blake's conduct at the hearing , persuade me that he was an angry man who
resented the Union's intrusion into his plant, and that this provoked him to
utter the threats attributed to him by the employees whom I credit
In making these credibility determinations, I have given due
consideration to the fact that the employees who testified for the General
Counsel participated in a strike against Respondent on May 7, and were
not thereafter reemployed by the Company.
17 George E Baumann, d/b/a Baumann Construction Co, 181 NLRB No.
80, A S Hubbs Contracting, 163 NLRB 292, 296, and cases cited in
In 5, see also dissenting opinion in Illinois Ruan Transport Co v N L R B,
404 F 2d 274, 284-290 (C A 8)
18 At the hearing in this case , Blake and Cobia testified that the claims
had no merit, and there could not have been any waiting time because it
was then the Respondent's busy season, and because other employees who
(under the bundle progression system in effect ) relied for their work on the
claimants did not also claim waiting time I regard this testimony and
argument as unworthy of reliance for the following reasons At the time
when the claims for waiting time pay were asserted , Blake erroneously
believed that he had no liability for such pay unless it resulted from
machine breakdown . In this regard, it is significant that when Blake and
Cobia returned the production slips to the claimants, they did not tell the
employees that they regarded the claims as false, but only that they had no
(Continued)
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coerced employees in the exercise of their rights under the
Act, and thereby further violated Section 8(a)(1) of the Act.
In respect to waiting time, the complaint also alleges that
the Respondent engaged in a refusal to bargain with the
Union within the meaning of Section 8(a)(5) of the Act, by
unilaterally modifying the terms of the collective'agreement
and refusing to pay employees for waiting time unless
caused by machine breakdown. In respect to this allegation
of the complaint, the Respondent contends: (1) that the
contract provision regarding waiting time is ambiguous; (2)
that under the most favorable interpretation to the
employees, the Respondent was justified in refusing to pay
the waiting time claims that were presented to it; and (3)
that the Board should decline to exercise its admitted
jurisdiction over this issue,19 and relegate the parties to
arbitral determination which already has been ordered by a
United States district court.20 I regard these contentions as
without merit for the following reasons:
The issue presented for determination is whether the
Respondent violated Section 8(a)(5) of the Act by
unilaterally changing the terms of the collective contract to
which it had agreed in respect to waiting time. The
language of the provision is clear and unambiguous and
does not require the expertise of an arbitrator for
interpretation. The contract clearly provided that piece rate
workers would be paid, not only for waiting time resulting
from machine breakdown, but also that which resulted
from "other causes" beyond the employee's control. The
contract thus clearly encompassed payment for time lost by
employees waiting for work.
Notwithstanding the unambiguous language of the
waiting time provision of the contract, and the Respon-
dent's tardy admission that the Board has jurisdiction of the
issue and authority to interpret the contract, the Company
nevertheless now requests that the Board defer the exercise
of its jurisdiction and relegate the parties to arbitration
under the contract. I believe that it would not effectuate the
purposes of the Act to do so.
The waiting time issue is one of three which the
Respondent seeks to have deferred to the arbitral processes
of the contract. The other two issues sought to be so
deferred involve the alleged discharge of two employees for
antiunion reasons in the spring of 1968. In respect to the
waiting time issue, the record discloses that it will be the
Respondent's contention before the arbitrator that the
liability for and would not pay waiting time, and that the employees would
not be paid for their work if they did not rewrite their production slips and
omit waiting time Moreover, the fact that the Respondent was then busy,
and that the claimants earned more than their minimum hourly rate, does
not negate the possibility that they had to wait for work as claimed
Finally, the fact that other employees, who relied on the claimants for work
under the progression system, did not also claim waiting time pay does not
establish that they did not have to wait for work.
19 The Respondent's answer (par. 5) asserted as an affirmative defense
that the Board had no jurisdiction "to determine the merits of the charges in
this case because they arose at a time when there was a collective-
bargaining agreement to in existence between the parties which provided for
arbitration to be the sole remedy for any and all disputes." However, in its
brief (pp 34-35), the Respondent now concedes the Board's jurisdiction in
this case and its authority to interpret collective-bargaining agreements in
connection with a determination of whether or not unfair labor practices
have been committed
grievance over waiting time was not timely filed within the
10-day limitation period of the contract. There, is thus, a
possibility that the merits of the issue would not be
reached. The issue of whether the two employees were
discharged for discriminatory antiunion reasons or not is
one which is particularly within the Board's expertise. All
of these issues already have been fully litigated during the
3-day hearing in this case , they are now 2 years old, and
their determination should not be further delayed. For
these reasons , I regard the Respondent's contention that
these issues should now be deferred to arbitration as
without merit.
Contrary to the clear language of the contract, Blake told
employee Addie Wilson that the provision of the contract
relating to waiting time did not apply to him and that he
did not have to pay for waiting time; he told employee
Trail that the next time she turned in a production slip with
waiting time on it, she would not be paid for the work
shown on the slip; he told Union Chairlady Myra Heller
(in regard to Addie Wilson's claim) that the contract did
not call for waiting time and he would not pay for it; and
he told Union Representative Lafever at a grievance
meeting regarding the failure to pay waiting time that he
would pay only for waiting time which resulted from
machine breakdown. The iteration of these statements and
the refusal to pay any of the waiting time claims caused
employees to cease making further claims for such pay.
These statements of Blake were not only a repudiation of
the clear language of the collective agreement, but also
constituted a unilateral modification of the contract's
terms without bargaining with the Union.21 Blake's
conduct in this regard clearly constituted a refusal to
bargain with the Union within the meaning of Section 8(d)
and 8(a)(5) of the Act, and I so fmd.22
E. The Discriminatory Discharge of Jean West
Jean West was hired by the Respondent on January 15,
1968, to work in the pressing department. Her job was that
of "topper" which means that she pressed the tops of men's
trousers. West credibly testified without contradiction that
when she was hired by Nell Cobia (Holmes), the supervisor
20 On an undisclosed date in 1968, the Union instituted an action
against Respondent in the United States district court to compel the
Company to arbitrate several unresolved grievances , including the
grievance over the failure to pay Addie Wilson and Irene Trail for waiting
time claimed under the collective contract. On November 19, 1968, the
court granted the Union 's motion for summary judgment in that case and
directed Respondent to proceed to arbitration . However, since that date,
no arbitration has, in fact, taken place, apparently because of the Union's
procrastination
21 Contrary to the Respondent 's contention , I regard the merit or lack
of the individual employee's claims as immaterial to the issue of whether
Blake's statements constituted a unilateral repudiation and modification of
the contract within the meaning of Section 8(d) of the Act
22 C & S Industries, Inc, 158 NLRB 454; Century Papers, Inc, 155
NLRB 358
CURTIS MANUFACTURING CO.
of the pressing department, she was told that she would be
on probation for a period of 30 days.23 West was an
experienced presser and not a learner.24 On an undisclosed
date before West's termination on February 20, 1968,
President Blake gave Union Representative Lafever a list of
new employees which had the dates January 15 and March
15, 1968, alongside West's name, and Blake told Lafever
that the latter date was when her probationary period
expired. However, West was never informed that her
probation period had been extended.
According to West's credited testimony and that of
employees Georgia Burks and Pearl Cotton, West received
no complaints about her work, and to the contrary, she was
complimented for her performance and speed by both her
supervisor Cobia and President Blake.25
On February 19, 1968, dust before quitting time West
delivered to President Blake a union dues check-off
authorization form which she had signed earlier.26 The
next morning, Tuesday, February 20, when West came to
work, her timecard was missing from the rack. She asked
Office Manager Shore where her card was, and apparently
was instructed to wait for Blake 's arrival. While waiting,
she telephoned Umon Representative Lafever, who then
came to the plant. When Blake arrived, he told West that
her work was unsatisfactory and that she was terminated.
Following West's termination , the Umon filed a griev-
ance with the Respondent on February 23, protesting her
"unjust discharge" with "no advance warning," and
demanding reinstatement with backpay and retention of
seniority. On March 26, during a meeting with the Union's
representatives at which West's discharge was discussed,
Mr. Leonard Sydney, a New York representative of the
Union, accused Blake of discharging West because she
turned in a union dues check-off authorization card the
night before her dismissal, and because he regarded it "as a
personal affront when the people [employees] voted the
union into the shop." According to the uncontroverted and
credited testimony of Union Representative Lafever and
Union Chairlady Myra Heller who were present at this
meeting, Blake replied, "I will tell you one thing, I saw red
when she [West] handed me that union card." 27
The complaint alleges that West was discharged by
Respondent because she engaged in union activities. The
Respondent contends that she was terminated because of
her unsatisfactory work, and also that it had a right to
23 The collective agreement between Respondent and the Union (article
V (B)) provides that all new employees, other than those "on learner's
permits" are subject to a trial period of 30 days, and that the trial period
for learners is 60 days The agreement further provides that Respondent
may extend the trial period for nonlearners for an additional 30 days
"upon notice to the Union," that during the trial period the Respondent
"may discharge a new employee," and that such discharge is not subject to
either the grievance or arbitration procedures of the contract
24 West's supervisor Cobia testified that West "was on a learner's
permit" when she was hired, and that the permit was in the Respondent's
possession However, although the Respondent had ample time and
opportunity, the permit was not produced, and no explanation was offered
for the failure to do so Moreover, President Blake testified, contrary to
Cobia, that West was not a learner on permit I conclude from the
foregoing that the Respondent had no learner's permit for West, that
Cobia's testimony to this effect is unworthy of credence, and that West's
testimony to the contrary is reliable
25 West testified that she was separately told by both Cobia and Blake
that her work was good Burks, who also was a presser, testified that Cobia
told her that West "was a good worker, the best and fastest they ever
197
discharge West for any reason because she was then a
probationary employee.
Before considering the motivation for West's discharge, it
is appropriate to first eliminate from consideration a
contention of Respondent which clearly is immaterial to
the issue which is presented for determination and without
merit. West was fired by Respondent after working for it 35
days. Considerable testimony was adduced by all the
parties as to whether West, under the collective-bargaining
agreement , was a learner or not a learner , whether she
therefore was subject to a 30- or 60-day probationary
period, and if the former, whether the period was extended
to 60 days by proper notice to the Union. This testimony,
although probably relevant to the question of whether
West's discharge was subject to the grievance and
arbitration provisions of the contract, clearly has no
applicability to this proceeding in which the Respondent is
charged with terminating West's employment in violation
of Section 8(a)(3) and (1) of the Act. The proscription
contained in those sections are not limited to permanent
employees, but apply equally for the protection of all
employees, whether probationary, temporary, or otherwise.
Under Section 8(a)(3) of the Act, the respondent could
lawfully discharge West, or any other employee, for any
reason with but one single exception. It could not do so
lawfully if the termination was motivated by support of the
Union.28 I therefore reject as devoid of merit the contention
of Respondent that it had a right to discharge West for any
reason because she then was a probationary employee.
We come then to a consideration of whether West was
discharged for her support of the Union as the complaint
alleges , or because she was an unsatisfactory employee who
performed "sloppy work" as the Respondent contends.
As previously noted, West and other employee witnesses
credibly testified that West had been complimented on the
speed and excellence of her work by Nell Cobia, West's
supervisor. Cobia, although a witness for Respondent,
significantly failed to deny that she had so complimented
West. Moreover, although Cobia, as West's immediate
supervisor, obviously was in the best position to know the
quality of West's performance, she did not testify to any
shortcomings in West's work or behavior. The only witness
who testified that West's work was other than satisfactory
was Blake. He testified that her work had been `sloppy' ever
since she was hired, and that he retained her nevertheless,
hired " Cotton, another presser, testified that Cobia similarly told her that
West "was the best operator she had ever had in that particular
department " Cobia, although a witness for Respondent, did not deny any
of these statements attributed to her by West , Burks, and Cotton. Blake did
not specifically deny telling West that her work was good, but he did so
inferentially by testifying that her work throughout her employment period
was "sloppy " However, as previously noted, I regard Blake 's testimony as
unreliable , and I do not credit him in this regard either , especially since
Cobia, West's immediate supervisor , did not corroborate Blake in this
regard
26 Florida being a right-to-work law state, the collective-bargaining
agreement between Respondent and the Union contains no provision
requiring membership in the Union as a condition of employment.
However, the Respondent did agree therein to checkoff union dues and
initiation fees for employees who signed a designated authorization form
and personally delivered it to Respondent.
27 Although Blake testified extensively regarding West's discharge and
his asserted reasons therefor , he did not deny making this statement to Mr
Sydney
28 NLRB v. T A McGahey, 233 F 2d 406,413 (C A 5).
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first, because he hoped she would improve through his
teaching, and later, because he did not have a replacement
for her. As previously noted, I regard Blake's testimony as
generally unworthy of credence, and I do not believe him in
this regard either. Blake admitted that West's work
performance on February 19 was no different from usual.
His testimony also disclosed that no replacement for West
was hired until 2 weeks after her termination. Thus, no
plausible reason exists why West was fired on Tuesday
morning in the middle of Respondent's work week which
ends on Friday. Moreover, West was not even given the
courtesy of notice the night before that she need not report
to work the next day. All of the foregoing persuades me that
no credence can be given Blake's testimony about the poor
quality of West's work, and that the decision to discharge
West was arrived at suddenly, the day before at quitting
time, when West handed Blake her union dues check-off
authorization card. This quite obviously caused Blake, who
regarded the Union as a thorn in his side, "to see red," as he
later conceded to the union representatives who sought
West's reinstatement.
I therefore conclude that the Respondent discharged
West because of her support of the Union, and that it
thereby engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
As previously noted, West's job was that of a presser of
men's trousers, and specifically the top parts of the pants.
After the March 26 grievance meeting between Blake and
Union Representative Sydney regarding West's discharge,
Blake telephoned West, offered her a job as a seam buster,
told her that she would have to start her probationary
period all over again, and that the offer was without
backpay. West rejected the offer and told Blake that she
wanted "my backpay and my seniority and my own job
back."29 contends that in the light of this offer, West is not
entitled to either a further offer of reinstatement or
backpay. I do not agree.
As a discriminatee under the Act, West was entitled to
the usual Board order of reinstatement to her former
position, without prejudice to her seniority and other rights
and privileges previously enjoyed, and to be made whole
for her loss of earnings resulting from the discrimination.
The Respondent's offer to West of the job of seam buster
was to a job which West had never held and did not know.
She was entitled to be returned to her former position, even
if that required firing the replacement Blake assertedly had
hired after West's termination. Since the offer was to a
different job, which moreover, was not shown to be
substantially equivalent, and the offer required West to
waive seniority rights and backpay to which she was
entitled, its rejection did not disqualify West from eligibility
for the Board's usual remedial order, notwithstanding that
the union representatives urged her to accept the Respon-
dent's offer 30
29 The findings and quotes are based on West's credited testimony See
also the Respondent's note on West's payroll record (Resp Ex 20) which
reads, "Called March 29th & offered Seam Busting Job-Refused-"
3o Ideal Donut Shop, 148 NLRB 236, Breitlmg Brothers Construction Co,
153 NLRB 685, 695
F. The Termination of Myra Heller
Myra Heller was employed by the Respondent as a sobar
machine operator from August 1965 until April 30, 1968,
when her employment was terminated under circumstances
described hereinafter. She was an active union organizer in
the campaign which, despite the Company's vigorous
opposition and coercion of employees,31 resulted in the
certification of the Union as the representative of
Respondent's employees. Subsequently Heller was elected
union chairlady of Respondent's shop, and as such she
discussed and attempted to adjust employee grievances
with President Blake. In January 1968, Blake told Heller to
stop coming to him "with little problems" during the day,
and to wait, either until the end of the day, or until Union
Representative Lafever made her weekly Monday visit to
the plant to discuss grievances. He also told Heller that if
she left her machine "one more time, you will go out the
door."
In 1966 or 1967, Heller sustained an injury to her
shoulder which required her to make regular visits every 2
weeks to a doctor for medication in the form of an
injection. On April 25, 1968, Heller notified Supervisor Nell
Cobia that she had an appointment to see her doctor for an
injection on the morning of Monday, April 29, gave Cobia
the doctor's appointment card, and Cobia marked the
appointment on the office calendar.32 At 11 a.m. on April
29, Heller went to the doctor's office and received an
injection which caused her to suffer from both nausea and a
sore arm and shoulder. Accordingly, Heller did not go to
the plant as she usually did after such injections, but instead
went home, called Blake, advised him of the ill effects
which she was experiencing, and that she would be back to
work the following morning.
The next morning when Heller reported for work, her
timecard was missing from the rack, and she asked Office
Manager Shore where it was. Shore in reply asked Heller
whether she had a doctor's slip, and she responded, "No."
Shore then said that Blake had left instructions that Heller
was to wait for his arrival. Blake arrived at 8:05 a.m. and
asked Heller whether she had a doctor's slip to show that
she had been to the doctor's office the day before. Heller
answered "no,", and said that she had not previously been
required to have one after giving prior notice of a medical
appointment. Blake replied that it was immaterial that
Heller had given 3 days' notice of her doctor's appointment,
and that unless she produced a doctor's slip to show that
she had visited him, she would not be allowed to go to
work. Blake also added, "I have replaced you anyway. You
wanted this stinking union. I have been pushed around for
six months and now I am going to do some pushing." Heller
then sat down in the lunchroom to wait for a ride back to
her home. At 10 a.m., during the employees' regular
coffeebreak time, Supervisor Cobia came to the lunchroom
with Heller's timecard and told Heller that Blake would
permit her to go to work spreading cloth on the cutting
31 See fn 3, supra
32 The findings above are based on Heller's credited and uncontrovert-
ed testimony Cobia, although a witness for Respondent, did not deny or
dispute the veracity of Heller's testimony in this regard
CURTIS MANUFACTURING CO. 199
table if Heller would call the doctor to verify that she had
been in his office the day previous 33 Heller replied that her
arm was too sore to spread cloth, that Blake could call the
doctor if he wanted to, but that she had turned in a doctor's
appointment card which was all that was required. Cobia
then called Blake and he came to the lunchroom and
repeated to Heller that he "was tired of this damn [union]
mess" and was "going to start pushing," and that he did not
care how her arm hurt. Heller answered that she had a band
aid on her arm to show that she had received an injection.
Blake replied that as far as he was concerned, she "could
have one on her . . . [posterior]." Finally, Blake told Cobia,
"Don't give her [Heller] the damn [time] card. She is
through."34 Later that same day, Respondent sent a letter
signed by Blake to Heller stating, inter alia, as follows: 35
You were absent again on Monday, April 29th. You
said, you went to the Doctor. Company rules state you
must bring a certificate from him stating you were there.
You refused to get the certificate. You were told to go
back to work and get the certificate later. You refused
work and went home. This constitutes a quit. We are
hereby terminating your employment as of today.
On May 2, Heller through her sister, Union Steward
Irene Trail, filed a grievance with Respondent which stated
as follows: 36
Request to be reinstated on my job with backpay and
full seniority rights because of my unjust discharge.
The next day, Blake gave Trail the following notice: 37
With reference to greivance (sic) from Myra Heller,
have her in my office today May 3, 1968 at 4: P.M., in
accordance with article X.
Heller came to the plant on May 3 as directed, she was
handed a letter by Blake, and was told to read it and sign it
in Blake's presence if she accepted the conditions for
reinstatement contained therein.38 The letter stated as
follows:
Orlando, Florida
May 3, 1968
Mrs. Myra Heller
P.O. Box 1011
Apopka, Florida
Dear Mrs. Heller:
Reference is made to the termination notice we sent
to you after you refused to work on April 30, 1968.
In view of your generally satisfactory past employ-
ment record, the company will give you the option of
revoking your quit, or resignation, if you report for
work on May 6, 1968. Your refusal to work on April 30
will be accepted as a quit through May 4, and you will
not be paid for those days on which you did not work.
In the future, you will give three days notice of all
doctors appointments, you will not be absent from work
33 As previously noted, Heller's regular job was that of sobar operator
However, she admittedly helped spread cloth and did other chores in the
cutting room when work on the lobar machine was slow, or when the men
who generally did this work were busy and needed assistance The last time
Heller had spread cloth was about a month before April 30
34 The findings above are based on Heller's credited testimony To the
extent that Blake's version of these conversations does not accord with
Heller's , it is not credited
for periods in excess of one day at a time without
notifying the company of the reason for your absence
and expected date of return, and you will give the
company a statement from your physician when you are
absent on account of illness.
This offer of reinstatement will be good until 8:30
A.M., May 6, 1968 and will be with seniority and
continuity of employment without pay, however, for
days on which you did not work.
Yours truly,
LAWRENCE BLAKE,
President,
CURTIS MFG. CO., INC.
I accept the terms of this
discipline and reinstatement
MYRA HELLER
Heller took the letter home for consideration, and after
consulting with Union Representative Lafever, she com-
posed and sent the following reply to Blake: 39
Dear Mr. Blake:
On May 2, 1968 you requested through my sister,
Irene Trail, who is shop steward, that I come to your
office on May 3, 1968 between 3:30 and 4:00 P. M. This
I did.
You handed me a written statement and told me to
read it and if I accepted the conditions therein, I was to
sign it, and that I had till 8:30 A.M. May 6, 1968 to
decide. Also you said I would have to sign this
statement in your presence if I accepted.
I did not quit or refuse to go to work April 30, 1968. I
had complied to company rules and the Union contract
by giving Nell Cobia, forelady, notice 3 days in
advance, of my doctors appointment, which she marked
on the calendar in the office. Said appointment was for
April 29, 1968 and I gave notice on April 25, 1968 of my
appointment.
I have complied with the conditions set forth by the
Company and Union contract, therefore I cannot
accept your [sic ] conditions for reinstatement to my job,
and the days lost without pay through no fault of my
own.
Yours truly,
/s/ Mrs. Myra Heller
Mrs. Myra Heller
On Monday, May 6, Union Representative Lafever went
to the plant and discussed Heller 's discharge with Blake.
According to Lafever' s credited testimony , Blake said, "She
35 Resp Exh 12.
36 G. C Exh 3
31GCExh9
38 G C. Exh 5 Heller testified that this letter was received by her in the
mail, but she obviously was in error in this regard for her response thereto
(G C Exh 6) clearly discloses that the letter was personally delivered to
her by Blake as found above
39GCExh6
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Heller ] is out and she is going to stay out." Lafever asked
Blake whether he would take Heller back and leave the
question of her entitlement to backpay to be decided by
arbitration. Blake again replied that he would not "take her
back in his plant under any circumstances," even if
arbitration so decided. Lafever then gave Blake a notice
requesting arbitration of Myra Heller's discharge, which
stated, inter alia, that the Union would seek an award of
reinstatement and backpay.40
The complaint (par. 11(b)) alleges that Respondent
terminated Heller's employment because of her union
activities. The Respondent denies that it discharged Heller,
and contends that she quit, but that in any event it had just
cause for terminating her employment because of her
refusal to comply with the Respondent's allegedly nondis-
criminatory rule or policy in respect to furnishing a
doctor's certificate after a I-day absence for illness.
The termination of Heller (whether a quit or a discharge)
clearly resulted from her failure on April 30 to produce a
doctor's certificate after her absence on April 29, and her
undisputed refusal to thereafter obtain one. The record in
respect to the nature of the Respondent's rule with which
Heller allegedly failed to comply by not producing a
doctor's certificate was as follows:
According to Blake, the Respondent, in order to control
absenteeism, has always had a rule which is posted over the
employees' timeclock that an employee who is absent for I
day or more because of illness must bring to the plant on
her return a certificate from the doctor certifying the
necessity for the absence from work. Significantly, the
Respondent did not produce the written rule which
allegedly was posted over the time clock, and offered no
explanation for the failure to do so. There is no
documentary evidence regarding the precise nature of the
Respondent's rule on this subject, and the only testimony in
this regard was given by Blake, Shore, and Cobia, whom I
regard as unreliable in most respects. There was, moreover,
no evidence as to the applicability of the rule in cases, of
which there are undoubtedly many, where employees are
absent for illness and do not visit or consult with a doctor.
It is, nevertheless, fairly apparent that the Respondent has
some rule on this subject, for the record includes a number
of doctor's certificates which were given the Respondent by
employees after a single day's absence for illness.41
According to Office Manager Shore, the rule is enforced
as follows: When an employee is absent, he removes her
timecard from the rack, and upon her return, if a doctor's
certificate is presented, he returns the timecard to the
employee and permits her to return to work. Absent a
doctor's certificate however, Shore requires the employee to
wait for the arrival of President Blake or Supervisor Cobia,
and returns the timecard to the employee only if so desired
by either of them. Shore and Supervisor Cobia both
admitted that in some cases, employees have been
permitted to return to work notwithstanding that no
doctor's certificate was brought to excuse the absence.
40 Joint Exh 3 The next day, May 7, approximately 20 of the
Respondent 's employees went out on strike to protest Heller's discharge
The strike and picketing continued until August 12, 1968, when a fire
destroyed Respondent 's plant The plant was subsequently rebuilt and
operations resumed in January 1969, but most of the sinkers were not
reemployed by Respondent. The Union filed a charge on December 30,
Significantly, there is no testimony that any employee,
other than Heller, had been refused permission to return to
work after an absence for illness because of the lack of a
doctor's certificate. In this regard, Bernice Hobby credibly
testified that in February 1968, Blake permitted her to
return to work after a 1-day absence for illness notwith-
standing that she brought no doctor's certificate. Similarly,
Heller credibly testified without contradiction that on
January 5, 1968, Office Manager Shore permitted her to go
to work without a doctor's certificate after a 1-day absence,
and merely told her to have her doctor mail it to her
"because Mr. Blake might want one." It is thus quite
apparent and I find that whatever the precise rule or policy
of the Respondent on this subject, it had not been strictly
applied or enforced by the Company.
The Respondent knew that Heller was required to visit
the doctor periodically for injections. The Respondent also
knew that she had an appointment with the doctor for her
regular injection on April 29, because Heller had given her
appointment card to Supervisor Cobia on April 25, and the
latter had marked the appointment on the office calendar.
In addition, Heller admittedly had called Blake from her
home on April 29, and advised him that her injection had
caused her to suffer nausea and a sore arm and shoulder,
and that she would be back to work the following morning.
Blake thus clearly knew that Heller's absence on April 29
was for a legitimate medical reason. Under the circum-
stances, Heller clearly had good reason to believe that she
had complied with the Respondent's rule on this subject,
and that Blake's demand that she produce a doctor's
certificate was unreasonable.
What then was the Respondent's motive for its disparate
treatment of Heller on April 30? Blake's refusal to let Heller
go to work on April 30 clearly was not based on the rule
which was intended to control absenteeism, which admit-
tedly was not uniformly enforced, and with which Heller
had at the least substantially complied. It is obvious that
Heller did not "quit' 'her employment on April 30 at 8:05
a.m. She had come to the plant that morning for the
purpose of going to work, but was not permitted to do so by
Respondent. Since Blake then told Heller, "I have replaced
you anyway," it is manifest that it was Blake and not Heller
who was terminating the employment relationship, and that
the contention that she "quit" is devoid of merit.
The real reason for Blake's termination of Heller at 8:05
a.m. on April 30 is quite apparent from the record. Blake
clearly had a deeply rooted animus towards the Union, and
Heller was the Union's shop chairlady with whom he was
especially vexed because she processed grievances on the
Union's behalf. At the very moment that Blake refused to
permit Heller to return to work by telling her that she had
been "replaced anyway," he disclosed the motivation for
this action by telling Heller that he had been "pushed
around" by the Union for 6 months, and that now he was
going to do some pushing. It is thus quite obvious and I find
that Blake's disparate treatment of Heller and her
1968, alleging that the Respondent violated Section 8(axl) and (3)of the
Act by refusing to reemploy the "unfair labor practice sinkers" (Case
12-CA-4415 ), but on April 4, 1969, the charge was withdrawn with the
approval of the Regional Director
41 See Resp Exh 2(a), 2(b), 9, and 11-1 through 11-40
CURTIS MANUFACTURING CO. 201
termination at 8:05 a.m. on April 30, was motivated by his
animus towards the Union and Heller's activities on its
behalf. Accordingly, I find that thereby the Respondent
engaged in further unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
In view of my finding above that Heller did not quit but
was unlawfully discharged by Respondent, there remains
for determination only the question of whether her refusal
to accept Respondent's two later reemployment offers
renders her now ineligible for the usual remedy of
reinstatement and reimbursement for lost earnings.
As previously noted, the Respondent's first offer of
reemployment was made to Heller at about 10 a.m. on
April 30, when she was told by Supervisor Cobia that she
could go to work spreading cloth if she called her doctor
and verified that she had been in his office the previous day.
The Respondent's second offer to Heller of reemployment
was contained in its letter dated May 3 (Exh. 5) which, inter
alia, required her to admit that she had quit or resigned on
April 30, and to waive her claim for backpay from April 30
through May 4. For the reasons hereinafter stated, I regard
neither of these proposals as valid offers which bar Heller's
right to reinstatement and reimbursement.
1. The first offer of reemployment
Heller's regular job was that of sobar machine operator
and she helped spread cloth only when there was
insufficient work on the sobar machine or when the men
who regularly spread cloth were too busy to do so and
needed assistance. Before her unlawful discharge at 8 a.m.
on April 30, Heller had not spread cloth for a month. As an
employee who had been terminated in violation of Section
8(a)(3) of the Act, Heller was entitled to reinstatement to
her former position of sobar machine operator if work on
that machine was available, even if that required the
transfer of a replacement that had been put on thatjob. The
job of sobar machine operator clearly still existed on April
30 at 10 a.m. for it was offered to Heller on May 3. The
burden of showing that there was no work for the sobar
machine at 10 a.m. was on Respondent.42 However, no
such evidence was adduced. Thus, the Respondent's offer
of reemployment at 10 a.m. on April 30 was not one to her
formerjob to which Heller was entitled.
I am also persuaded that the offer to let Heller spread
cloth was not made in good faith. Thus, it was made with
knowledge that Heller's sore arm and shoulder had been
the reason for her absence the previous day 43 In addition,
it was conditioned on Heller verifying that she visited the
doctor on the day previous, notwithstanding that she had
given prior notice of the visit, the Respondent knew that she
went for injections every 2 weeks, and the Respondent did
not uniformly enforce its rule about doctor's certificates.
All of the foregoing persuades me that this offer to Heller
of reemployment was not a valid offer to her former job
which clearly was then available; and that in any event, it
was made in bad faith with a view to its rejection.
42 Snow & Sons v NLRB, 308 F2d 687, 695 (C A 9)
43 As previously noted, Blake told Heller that he did not care if she had
a band aid on her derriere
44 See cases cited in in. 30, supra
2. The May 3 offer of reemployment
As previously noted, the Respondent's May 3 offer of
reemployment required Heller to sign and agree to its
terms, and thereby to admit that she had quit or resigned
on April 30, and to waive her claim to backpay. Heller
rejected the offer for the very reason that she had not quit,
that she had complied with the Respondent 's rules, and
that she would not waive her backpay claim . Moreover, on
May 6, the Respondent refused the request of Union
Representative Lafever to permit Heller to go back to her
job, and to leave the backpay issue to be resolved by
arbitration.
All of the foregoing persuade me that the Respondent's
May 3 offer of reemployment to Heller was unlawfully
conditioned, and that its rejection by Heller did not
disqualify her from eligibility for the Board's usual
reinstatement and backpay remedy.44
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III.
above, occurring in connection with its 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 commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having further found that the Respondent discriminated
against Jean West and Myra Heller by terminating their
employment to discourage union activities and thereafter
failing and refusing to reinstate them , I will recommend
that the Respondent be ordered to offer them immediate
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of
earnings they may have suffered by reason of the
discrimination by the payment of a sum of money equal to
the amount they normally would have earned from the date
of their termination to the date of reinstatement , less their
net earnings during said period, with backpay computed on
a quarterly basis in the manner established by the Board.45
I will also recommend that the Respondent preserve and,
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 analyze and
determine the amount of backpay due under the terms of
this recommended remedy.
In view of the nature and extent of the unfair labor
practices committed in this and the prior case involving
45 F.W Woolworth Company, 90 NLRB 289; backpay shall include the
payment of interest at the rate of 6 percent per annum to be computed in
the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, the commission of other unfair labor practices
may reasonably be anticipated. I will therefore recommend
that the Respondent be ordered to cease and desist from "in
any other manner" infringing upon rights guaranteed to
employees by Section 7 of the Act, in addition to the
manner in which those rights were found to have been
violated herein.46
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Curtis Manufacturing Co., Inc., is an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Amalgamated Clothing Workers of America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminating against Jean West and Myra
Heller by terminating their employment and failing to
reinstate them because of their adherence to and support of
the Union, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
All employees employed by the Respondent at its
plant located at 625 Wilmer Avenue, Orlando, Florida;
excluding all office clerical employees, guards and
supervisors as defined in the Act.
5. At all times material herein, Amalgamated Clothing
Workers of America, AFL-CIO, has been the exclusive
representative of the employees in the aforesaid unit for the
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
6. By unilaterally and without bargaining with the
Union modifying and repudiating the terms and conditions
of employment of employees in the aforesaid appropriate
unit in respect to paying piece rate employees for waiting
time, contrary to the clear terms of the collective-bargain-
ing agreement between the Respondent and the above
named Union, the Respondent has engaged in, and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
7. By all the foregoing conduct, by threatening employ-
ees with stricter and more onerous working conditions
because of their selection of the Union as their collective-
bargaining representative , by stating to employees that it
would not honor the terms of its current contract with the
above-named Union, by refusing to grant employees a
leave of absence to attend a union convention contrary to
the terms of its agreement with the Union, and by
threatening employees with discharge if they took leave to
attend, and by threatening employees with reprisals if they
attempted to assert claims for waiting time pay under its
current contract with the above named Union, the
Respondent has interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by Section 7
of the Act, and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case, I
recommend that the Respondent, Curtis Manufacturing
Co., Inc ., its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf
of Amalgamated Clothing Workers of America, AFL-CIO,
or any other labor organization of its employees, or in any
other manner discriminating in regard to hire or tenure of
employment or any term or condition of employment;
(b) threatening employees with stricter or more onerous
working conditions to discourage support of the above-
named Union.
(c) Threatening employees with economic reprisals to
discourage the assertion of claims for waiting time pay
under the current contract with the above-named Union.
(d) Discouraging support of the above-named Union by
refusing to grant leaves of absence to attend union
meetings or conventions as required by its contract with
the Union, and by threatening employees with discharge or
other reprisals if they take leave to attend;
(e) Repudiating, refusing to honor , or, except as
permitted by Section 8(d) of the Act, unilaterally modify-
ing or terminating the written agreement entered into
between it and the above-named Union , or from engaging
in any like or related conduct in derogation of its statutory
duty to bargain with said Union.
(f) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights to self
organization, to form labor organizations , to join or assist
Amalgamated Clothing Workers of America, AFL-CIO, or
any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from engaging in such activities.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Jean West and Myra Heller immediate and full
reinstatement to their former jobs, or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges
enjoyed, and make them whole for any loss of pay they may
have suffered as a result of the discrimination against them
in the manner provided in the section of this Decision
entitled "The Remedy."
(b) Reimburse and make whole all piece rate employees
for any waiting time pay to which they may be entitled
46 NL RB v Entw,sie Mfg Co, 120 F.2d 532, 536 (C A 4)
CURTIS MANUFACTURING CO.
under the terms of the current collective -bargaining
agreement with the above named Union.47
(c) Preserve and, 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 analyze and determine the amount of backpay
and waiting time pay due under the terms of this
Recommended Order.
(d) Notify Jean West and Myra Heller, if presently
serving in the Armed Forces of the United States, of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from
the Armed Forces.
(e) Recognize the above-named Union as the exclusive
bargaining representative of its employees in the unit
described below , and honor the written collective -bargain-
ing agreement which it entered into with said Union. The
bargaining unit is:
All employees employed by the Respondent at its
plant located at 625 Wilmer Avenue , Orlando, Florida;
excluding all office clerical employees , guards and
supervisors as defined in the Act.
(f) Post at its plant in Orlando , Florida, copies of the
notice marked "Appendix ." 48 Copies of said notice, on
forms provided by the Regional Director for Region 12,
after being duly signed by Respondent , shall be posted by it
for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of the receipt of this
Decision , what steps have been taken to comply
herewith.49
47 Since the evidence relating to the amounts of waiting time pay to
which employees may be entitled was not fully developed during the
hearing before me, the determination of the amounts due, if any , is left to
supplemental compliance proceedings , if necessary
48 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations,
automatically become the findings , conclusions , decision and order of the
Board , and all objections thereto shall be deemed waived for all purposes
In the event that the Board 's Order is enforced by a judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board "
49 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director for
Region 12 , in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
203
After a trial at which all sides had the opportunity to
present their evidence , a trial examiner of the National
Labor Relations Board has found that we violated the
National Labor Relations Act, and has Ordered us to post
this notice and we intend to carry out the Order of the
Board.
The Act gives all employees these rights:
To engage in self organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
mutual aid or protection; and
To refrain from any and all these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT discourage union activity or member-
ship in amalgamated clothing workers of amenca,
AFL-CIO, or any other labor organization by discrimi-
nating against you if you chose to engage in union
activity or join that Union or any other union.
WE WILL NOT modify, make unilateral changes of, or
repudiate our current collective-bargaining agreement
with the above -named Union during the life of said
agreement without the consent of said Union.
Since the Trial Examiner decided that we discnml-
nated against Jean West and Myra Heller to discourage
union activities , WE WILL offer them full reinstatement
to their formerjobs , and WE WILL pay them for any loss
they suffered because we fired them . If they are
presently in the Armed Forces of the United States, we
will notify them of their right to full reinstatement upon
application after discharge from the Armed Forces.
WE WILL also reimburse and make whole all piece
rate employees for any waiting time pay to which the
may be entitled under the terms of our current
collective-bargaining agreement with the above-named
Union
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
rights to self-organization , to form labor organizations,
to join or assist amalgamated clothing workers of
america, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their
own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection , and to refrain from any
or all such activities.
WE WILL recognize amalgamated clothing workers
of America , AFL-CIO as the exclusive bargaining
representative of our employees in the unit described
below, and WE WILL honor the terms of the collective-
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining agreement which we and the Union
executed on December 4, 1967. The bargaining unit is:
All employees employed by us at our plant
located at 625 Wilmer Avenue, Orlando, Florida;
excluding all office clerical employees, guards and
supervisors as defined in the Act.
Dated By
(Representative ) (Title)
CURTIS MANUFACTURING
CO., INC.
(Employer)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, Room
706, Federal Office Building , 500 Zack Street, Tampa,
Florida 33602, Telephone 813-228-7227.