John Kinkel & Son

National Labor Relations Board - Board Decisions

Mar 16, 1966

157 N.L.R.B. 744 (N.L.R.B. 1966)

744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Kinkel & Son and International Ladies' Garment Workers
Union, AFL-CIO. Case No. 2?-CA-9d056. March 16, 1966
DECISION AND ORDER
On August 6, 1965, Trial Examiner William F. Scharnikow issued
his Decision in the above-entitled proceeding, finding that 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 attached Trial Examiner's
Decision. He also found that Respondent had not engaged in other
unfair labor practices alleged in the complaint and recommended
dismissal of those allegations. Thereafter, Respondent, the General
Counsel, and the Charging Party filed exceptions to the Trial Exam-
iner's Decision and supporting briefs. The General Counsel also
filed his brief to the Trial Examiner in support of the Trial Examiner's
findings not excepted to by the General Counsel. The Charging Party
also filed an answering 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 [Chairman McCulloch and Members Jenkins and Zagoria].
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, the briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications:
1. In adopting the Trial Examiner's finding that the authorization
card of employee Mary Smith is a valid authorization, we note, in
addition to the reasoning of the Trial Examiner, that the record does
not indicate any reliance by the employee upon Scotti's remark to her
during the extended conversation which led to her signing the card on
July 17, that "everybody" in the Respondent's plant had signed cards.
1 The Charging Party has requested oral argument Since the record, the Trial Exam-
iner's Decision , and the exceptions and briefs adequately set forth the issues and the posi-
tions of the parties, including the Charging Party, the reque :; t for oral argument is
hereby denied.
2 The Trial Examiner rejected the General Counsel's offer of an authorization card
purportedly signed by employee Mary Naomi Emmons on the ground that the signature was
not properly authenticated . The General Counsel and Charging Party have excepted to
this ruling and contend that the Trial Examiner erred in requiring direct evidence that
the employee in question had signed the card, relying particularly on living Taitel, et al.,
d/b/a I. Taitel and Son, a partnership , 119 NLRB 910 , enfd. 261 F . 2d 1 (C.A. 7), cert.
denied 359 U.S. 944. We find it unnecessary to, and do not , pass on the correctness of the
Trial Examiner 's ruling as to Emmons ' card inasmuch as her card , even if counted, would
not affect the Union's majority status.
157 NLRB No. 64.
JOHN KINKEL & SON 745,
To the contrary, the record shows that although a week later, when
the strike began, employee Smith demonstrably discovered that not
"everybody" supported the Union, she still "didn't want to " withdraw
her card.
2. In adopting the Trial Examiner's conclusion that Respondent
violated Section 8(a) (5) of the Act, we rely only upon the findings of
the Trial Examiner that "the Respondent's refusal to bargain with
the Union on and since July 30, 1964, has been motivated, not by any
[good-faith doubt as to the Union's majority], but by its determination
to avoid bargaining with the Union...."
3. We agree with the Trial Examiner that Respondent violated
Section 8(a) (3) and (1) of the Act in reinstating employee Ramon
Hernandez at a substantially lower rate of pay than he had earned
before the strike. We do not agree, however, with his recommendation
that Hernandez be denied reinstatement and backpay.
Before the strike Hernandez worked on a piece work basis and
earned about $125 weekly by pressing about 40 dozen sweaters daily.
After he returned to work on September 21, his pay was changed to
an hourly rate of $2.25 and his weekly pay thereby reduced to about
$90. When his protests about his reduction in pay were unavailing,
Hernandez geared his production to approximately 25 dozen sweaters,
the number which, at his old piece rate, would yield him his new pay
rate. Hernandez also continued to engage in conduct (singing and'
gesturing) which had began during the unfair labor practice strike,
and which reflected the strikers' hostility toward the Kinkels, and
particularly, Catherine Kinkel.3 Hernandez was warned by her about
his production and conduct and was discharged by her at the end of
the week for these reasons.
Hernandez' conduct after reinstatement must be considered in the
light of Respondent's illegal conduct which provoked Hernandez' ac-
tions 4 Respondent unlawfully cut Hernandez' pay almost 30 percent
after the strike, to the level of his starting rate with Respondent.
Hernandez' singing and gesturing were but normal and foreseeable
reactions to Respondent's conduct, and there is no claim or evidence
indicating that the singing and gesturing interfered in any way with
production in the plant. While we do not condone Hernandez' cutting
of his production rate to coincide with the cut in his pay rate, this
8 While on the picket line during the strike, Hernandez had sung the song "How Much
is That Doggie in the Window?" whenever Catherine Kinkel would appear in view in the
plant. After his return to work, he continued to sing or whistle this song when Catherine
was near his place of work. On such occasions, Hernandez also would make a gesture
by forming a circle with the thumb and forefinger of one band, leaving the other three
fingers extended, apparently intending thereby to indicate scorn or defiance of Catherine.
& Local 833, International Union, United Automobile, Aircraft and Agricultural Im-
plement workers of America (Kohler Co.) v. N.L.R.B., 300 P. 2d 699 (C.A.D.C.) ; N.L.R.B.
v. Thayer Company and H. N. Thayer Company, 213 F. 2d 748 (C.A. 1), cert. denied 348
U.S. 883.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
again was a predictable reaction to protect himself against the con-
tinuing pressure of the substantial and illegal reduction in his pay, and
was in no way disproportionate to the wrong inflicted upon him. His
conduct cost the Employer a loss in production, but the Employer
was attempting illegally to obtain the former production from Her-
nandez for less pay, and Hernandez' conduct caused Respondent only
to pay for the production it received at the rate it was legally obligated
to pay. In such circumstances, Respondent's refusal to reinstate
Hernandez properly and its ultimate dismissal of him amounts to an
effort to cast on Hernandez the burden of its own violation of the
statute. Because Hernandez was never properly reinstated, his
defiance in these respects constituted merely a continuation of a
reaction against the Employer's unfair labor practices which had
never been rectified. The fact that Hernandez was warned to cease
the singing and gesturing and to resume his old rate of production,
so that his persistence in the conduct thus became "insubordination"
(as the Trial Examiner characterized it), does not increase the gravity
,Of his misconduct, inasmuch as that conduct was at all times directly
provoked by Respondent's violation of the statute. To deny Her-
nandez either backpay or reinstatement in these circumstances would
simply "put a premium on the Employer's misconduct."'
As Hernandez was never lawfully reinstated following the strike, we
shall direct that he be offered reinstatement to his former position
at his former rate of pay, and be made whole for any loss of pay
which he may have suffered as a result of the discrimination against
him. The Respondent's backpay liability as to Hernandez shall be the
same as to the unfair labor practice strikers who applied for reinstate-
ment and who were wrongfully refused such reinstatement, less, of
course, any interim earnings.
4. We do not adopt the Trial Examiner's recommendation that
Respondent's wrongful refusal to reinstate striking employees who
applied for reinstatement on September 9 be dated as of September 21.
5In N.L.R.B . v. M & B Headwear Co., Inc., 349 F. 2d 170, 174 (C A. 4), enfg. In relevant
part 146 NLRB 1634 , the court stated:
We in no way condone insubordination and in normal situations it would be a justifia-
ble ground for dismissal . But we cannot disregard the fact that the unjust and
discriminatory treatment of Vaughan gave rise to the antagonistic environment in
which these remarks were made.
An employer cannot provoke an employee to the point where she commits such an
indiscretion as is shown here [threats and rudeness ] and then rely on this to
terminate her employment . See NLRB v . Tennessee Packers, Inc., 339 F. 2d 203.
(6th Cir. 1964 ). The more extreme an employer 's wrongful provocation the greater
would be the employee 's justified sense of indignation and the more likely its exces-
sive expression . To accept the argument addressed to us by the company would be
to provide employers a method of immunizing themselves from the only real sanc-
tion against violations of section '8 (a) (3). Reinstatement in the instant case is not,
as the employer puts it, a reward to the employee for insurgency . Rather, as we
see it, refusal to reinstate her would put a premium on the employer 's misconduct.
JOHN KINKEL & SON 747'
The record does not adequately support a determination that Sep-
tember 21 was the date when Respondent first had work available for
any of the employees in question, and it is this factor, rather than delay
incident to Respondent's office routine, consultation with counsel, or
assessment of employment needs, that would shift the burden of delay
in offering reinstatement from Respondent to the unfair labor practice
strikers.6 If Respondent can establish in compliance proceedings that
no work was available for some or all of the employees who applied
for reinstatement on September 9 until some date after September 9,.
even after all persons hired during the strike were discharged, then
the computation of Respondent's liability for backpay will be fixed in
accordance with the date when work was first available.?
ADDITIONAL CONCLUSIONS OP LAW 8
After Conclusion of Law No. 6 in the Trial Examiner's Decision,
add the following paragraph and renumber subsequent Conclusions of
Law accordingly :
7. By reinstating employee Ramon Hernandez on September 21 at
a substantially lower rate of pay than he had received before the strike,
Respondent discriminated against him in regard to the terms and
conditions of his employment, in order to discourage membership in,.
and support of, the Union, thereby committing an unfair labor prac-
tice within the meaning of Section 8 (a) (3) and (1) of the Act.
[The Board adopted the Trial Examiner's Recommended Order-
with the following modifications :
[1. Delete the number "10" in paragraph 2 (b) (2).
[2. Add the name of Ramon Hernandez to Appendix B.
[3. Modify paragraph 2(b) (4) as follows:
["4. Immediately make whole each of the person listed in Appendix
B and each of the employees offered reinstatement as of Septem-
ber 21, 1964, for any loss of earnings he or she may have suffered by
reason of the Respondent's discrimination, by payment to each of them
of a sum of money equal to that which he or she would have earned
from September 9, 1964, or such later date as Respondent first had
work available for them, after the discharge of all employees hired
during the strike to replace any of said strikers, to the date of the
8 Universal Food Service , Inc., 104 NLRB 1, 15-16. Accord : Efco Manufacturing, Inc.,
108 NLRB 245, 257-258.
7 The provision for backpay from September 9 until reinstatement for those employees
reinstated on September 21 will include employee Ramon Hernandez.
8 Conclusion of Law No. 6 is modified by changing the date "September 21, 1964" to,
the date "September 9, 1964."
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's offer of reemployment or establishment of a preferential
hiring list, as the case may be, less his or her net earnings during
said period, in accordance with the formula set forth in the section
of the Trial Examiner's Decision entitled "The Remedy."
[4. Modify the fourth indented paragraph of Appendix C as
follows :
AVE WILL take the steps recommended by the Trial Examiner
for the immediate or eventual reinstatement of the employees
listed in Appendix B of the Trial Examiner's Decision, and for
the immediate compensation for loss of earnings since Septem-
ber 9, 1964, or such later date as work was first available, for these
employees and the employees to whom we offered reinstatement
as of September 21, 1964.]
TRIAL EXAMINER'S DECISION AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint and amended complaint in the present case, were issued and served
upon the Respondent, John Kinkel & Son on September 2 and November 24, 1964,
respectively , upon charges and amended charges filed by International Ladies' Gar-
ment Workers Union, AFL-CIO (herein called the Union), and served upon the
Respondent on July 28 and October 7, 1964, respectively. As amended before and
during the hearing, the complaint alleges, but the Respondent in its answer denies,
that on and since about March 31, 1964, the Respondent has committed unfair labor
practices affecting commerce within the meaning of Section 8 (a)(1), (3), and (5)
and Section 2(6) and (7) of the National Labor Relations Act, 29 U.S.C. Sec. 151,
et seq., herein called the Act
With respect to the unfair labor practices, the amended complaint alleges, but the
Respondent in its answer denies:
(1) That on various given dates the Respondent committed unfair labor practices
within the meaning of Section 8(a) (1) of the Act by interrogating employees con-
cerning their membership in, activities on behalf of, and sympathies for the Union,
and by keeping under surveillance the meeting places, meetings, and activities of the
Union.
(2) That the Respondent committed unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act by discharging employees Wilson Lodge and
Eugene Savage on July 23, 1964, and employee Julian Wilson on October 2, 1964,
and thereafter failing and refusing to reinstate them because these employees joined
or assisted the Union and engaged in other concerted activities protected by the Act.
(3) That the Respondent committed further unfair labor practices within the
meaning of Section 8(a) (3) and (1) of the Act by failing and refusing on and since
September 9, 1964, to reinstate certain named unfair labor practice strikers upon
their unconditional application, all because of their participation in the strike.
(4) That on and since July 28, 1964, the Respondent has committed unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain collectively with the Union as exclusive bargaining representa-
tive of the Respondent's employees in an appropriate bargaining unit within the mean-
ing of Section 9(a) and (b) of the Act.
Pursuant to notice a hearing was held before Trial Examiner William F. Scharni-
kow, at Asbury Park, New Jersey, from November 30 to December 11, 1964, inclu-
sive. The General Counsel, the Respondent, and the Union appeared by counsel and
were afforded full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues. At the session of December 11,
1964, further hearing was adjourned to January 12, 1965, for the sole purpose of then
permitting the Respondent to adduce certain evidence On January 5, 1965, how-
ever, counsel for the Respondent notified me and the other parties that he did not
intend to produce such evidence but would rely upon the record of the case as it stood.
Thereafter, in response to a telegraphic order to show cause sent by me to the parties
on January 6, 1965, all parties agreed that the hearing should be closed. Accordingly,
JOAN KINKEL & SON 749
by further telegraphic order transmitted to the parties on January 14, 1965, I closed
the hearing. Since the close of the hearing, I have received and considered briefs
submitted by counsel for the General Counsel, the Respondent, and the Union.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material, a copartnership consisting of
John Jr., William, Frank, Catherine, Minnie, Louise, and Alice Kinkel, doing business
under the trade name and style of John Kinkel & Son. Maintaining its principle office,
plant, and place of business in Union City, New Jersey, until the end of December
1963, and since then in New Shrewsbury, New Jersey, the Respondent has been con-
tinuously engaged in the manufacture, sale, and distribution of knitted sweaters.
During its business operations for the 12 months preceding the issuance of the com-
plaint, the Respondent manufactured, sold, and distributed products of a value of
more than $50,000 and shipped them from its New Jersey plants in interstate com-
merce directly to points in States of the United States other than the State of New
Jersey. I find that the Respondent is engaged in a business affecting commerce
within the meaning of the Act and that it will effectuate the policies of the Act for
the Board to entertain jurisdiction in the present case.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction: the Respondent partnership, its business, and its early interference
with the Union's organization of its employees (March-July 1964)
The Respondent is a family partnership consisting of three brothers and their four
sisters, all of whom (with the exception of one sister) have been active in the business.
As I have noted, in January 1964, it moved its office and plant from Union City,
New Jersey, to New Shrewsbury, New Jersey, a distance of about 60 miles. Of the
partners principally involved in the 1964 events giving rise to the present case,'
William Kinkel has acted as the Respondent's general manager; Alice Kinkel has
managed the office and kept the records; and Catherine Kinkel has directly supervised
the trimming, pressing, examining, and shipping employees.
The Respondent has operated for the most part, if not completely, as a "con-
tractor"; i.e., a manufacturer of sweaters for, and under contracts with, various
jobbers.2 In 1963 and 1964, however, the only jobber whom the Respondent con-
tinued to serve was Rugby Knitting Mills, Inc., one of the country's leading manu-
facturers and jobbers of knitted goods with whom it had a continuous contractual
relationship for 7 or 8 years. Under their contract, Rugby supplied the Respondent
with the necessary raw materials and 3 of the 11 circular knitting machines used by
the Respondent; prescribed the styles and specifications of the sweaters; and, upon
the Respondent's manufacture and delivery of the sweaters to Rugby's "factory" and
distribution center in Buffalo, New York, sold and distributed them to retailers in
wholesale lots with a Rugby label and trade name on each sweater. From the evi-
dence, it is apparent, as Catherine Kinkel testified, that during the 1964 events with
which we are concerned in the present case, the Respondent was doing more work
for Rugby than for the other customer and that Rugby was therefore its "most
important customer."
The Respondent's shift of its plant to New Shrewsbury, because of the distance
from its old plant in Union City, required the hire of an entirely new staff of
employees. The Respondent's payroll records show that from the start of the New
Shrewsbury operation with I employee during the week ending January 4, 1964, the
number of the Respondent's employees gradually increased to 40 for the week ending
March 28, and to a maximum of 63 for the week ending June 20. According to these
records, for the week ending August 1 which included the critical dates of July 28
and 30, the Respondent had a total of 58 employees on its payroll.
i Unless otherwise specified, all dates to which references are made in this Decision,
are dates in 1964.
2It does not appear from the record whether, and if so to what extent, the Respondent
has sold its product under any other arrangement.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In February or March 1964, Walter DeYoung, a general organizer for the Union,
began organizing the Respondent's employees. After preliminary contacts with some
of them, DeYoung made arrangements to hold a general employees' meeting at Sol's
Tavern in Red Bank one evening in the last week of March. Three of the employees
appeared but noticed that Frank Kinkel, one of the Respondent-partners had parked
his car on the street near the entrance to the meeting place. Several carloads of other
employees drove up slowly to the entrance but then drove away.
Despite this inauspicious beginning, DeYoung continued to meet with small groups
of the Respondent's employees and, in late May or early June, began holding a series
of four general employees' meetings at Luigi's Tavern in Red Bank at about 2-week
intervals, the last taking place on the evening of July 22. At the next to last of these
meetings attended by about 18 employees employee Wilson Lodge, one of the
Respondent's two pressers, was selected as "organizational chairman" because he
knew most of the employees. As a result, organization was accelerated, with Lodge
himself accounting for at least 17 of the Union's bargaining authorization cards,
which were submitted at the hearing in the present case.
It is undisputed that, from the very beginning of these organizational activities,
the Respondent knew of them and of the identity of employees who were participat-
ing. Furthermore, the Respondent in effect admits that it secured this information
by interrogating employees and having one of its partners appear immediately outside
the Union's meeting place at the time scheduled for the employee meeting in March
and also at the time the last meeting was actually held on July 22. For it introduced
no evidence in denial of Frank Kinkel's espionage of the scheduled meeting in March.
And, in her testimony, partner Catherine Kinkel not only admitted asking employees
about their participation and that of other employees in the Union's activities and
knowing of Lodge's union activity from the time he was hired on April 13, 1964, but
testified affirmatively that, having learned from one of the employees of the union
meeting to be held that night, she and Alice Kinkel drove into the parking lot at
Luigi's while the meeting of July 22 was being held, parked there for 15 or 20 minutes,
wrote down the license numbers of the parked cars, and checked these numbers the
next morning against the licenses of the cars parked by employees outside the
Respondent's plant.
Upon this state of the record, it appears clear and I find, as the complaint alleges
and the Respondent in its brief virtually confesses,3 that from the beginning of the
Union's organizational activities in March 1964 the Respondent committed unfair
labor practices within the meaning of Section 8 (a) (1) of the Act by interrogating
employees about their union activities and those of their fellow employees, and by
spying upon two of the Union's meetings for employees, the first in the end of March
and the second on July 22. Moreover, the Respondent, by this early, open inter-
ference with its employees' free exercise of their right to self-organization and to
representation by the Union, demonstrated to its employees its antagonism to their
activities and indicated the possibility of reprisals if they persisted.
It is against this background that the evidence of the Respondent's subsequent con-
duct must be appraised, first to resolve evidentiary conflicts and to determine what
the Respondent actually did, and secondly to decide whether by its conduct the
Respondent committed further unfair labor practices within the meaning not only of
Section 8(a)(1) but also (3) and (5) of the Act. The material events to which this
evidence relates will be discussed chronologically, a treatment which will at the same
time permit a clear statement in each section of my discussion, not only of the factual
findings but also of the ultimate conclusions of law which are required in this case.
B. The discharge of Wilson Lodge on July 23, 1964,
and the resulting strike
Wilson Lodge was hired by the Respondent as a presser on April 13. At that time,
Lodge had had experience in pressing other garments but none in pressing sweaters.
Until approximately July 16, he and employee Ramon Hernandez (an admittedly
competent sweater presser of long experience who had been hired by the Respondent
in February) were the only pressers employed by the Respondent at the New Shrews-
bury plant. Hernandez, who had been hired by the Respondent at an hourly rate but
was changed to piece rates after 2 weeks of employment, at first instructed Lodge in
his new work. Then, like Hernandez, Lodge was changed from an hourly rate to
8In his brief, counsel for the Respondent makes the following statement:
General Counsel 's position with regard to alleged violations of Sections 8 ( a) (1) was
never challenged seriously by the respondent and the case went forward chiefly on
the proofs as directed to the alleged violation of Section 8(a)(3) and (5).
JOHN KINKEL & SON 751
;piece rates within several weeks after his hire although the Respondent still regarded
him as a "trainee ." The pressers' job was to steam, to press, and (in the course of
doing so ) to dry otherwise finished sweaters to the required shapes and sizes, just
before the sweaters were finally inspected, packed, and shipped out to the Respond-
ent's customer.
Lodge was discharged by partner Catherine Kinkel when he reported late for work
on the morning of July 23, the day after the union meeting at Luigi's Tavern 4 As he
came to work that morning Lodge explained to Catherine, who met him at the door
.of the plant, that he was late because his mother or his daughter was ill. According
to Lodge's testimony, Catherine told him he was fired, and upon Lodge's asking why,
said, "You know why, you are an agitator, a trouble maker." According to Catherine
Kinkel, however, she told Lodge, "You won't have to start to work. I won't need you
any more. Because I warned you already in June of your poor pressing , and that
I would have to replace you. Now, we are getting a lot of work back again this
morning and I won't be able to use you any more."
The most important single issue to be decided upon this and the other conflicting
-evidence in the present case, is whether Lodge was discharged because of his union
activity as the complaint alleges, or because of his continued failure to dry the
sweaters which he pressed just before they were shipped out, as Catherine Kinkel
testified. If the Respondent discharged Lodge because of his union activity, it com-
mitted an unfair labor practice which (1) discouraged the rest of the employees from
supporting the Union and authorizing it to act as their bargaining agent , (2) made it
impossible for the Board thereafter to conduct a representation election free from
.the Respondent's improper influence , and (3) strongly indicated bad faith on the
Respondent's part in later professing doubt of the Union's selection as bargaining
agent by a majority of the employees and refusing, on this pretext, to recognize and
bargain with the Union .5 Furthermore, Lodge's discharge on July 23 led a substantial
number of his fellow employees to walk out on what turned out to be a prolonged
strike. Whether Lodge's discharge was or was not an unfair labor practice, therefore,
also has an important bearing upon the strikers' rights to reinstatement upon an
application made by the Union on their behalf on September 9.6
There is no question that at the time of Lodge's discharge the Respondent knew of
and disapproved his union activities as well as those of the other employees. As a
matter of fact, Catherine Kinkel admitted that she knew of Lodge's activities from
about the time of Lodge's hire on April 13. She also admitted that: she received
information from several of the women employees that a union meeting was to be
held on July 22 although they did not know where; she questioned presser Ramon
Hernandez as to where the meeting would be held and he said he knew nothing about
it; she and her sister, Alice, however, did go to Luigi's parking lot and sat there in their
car at the time of this meeting, saw Hernandez' car, saw Lodge enter the meeting,
that she took down the license numbers of the cars in the parking lot, checked these
numbers the next morning against those on employees' cars parked at the plant; and,
on the morning following the meeting, she not only told employee Ann Blackard she
had seen her at the meeting but also charged Hernandez with "lying" because she had
seen him there, too.
For the most part, these admissions by Catherine Kinkel were elicited by leading
and strictly limited questions put to her by the General Counsel. Moreover, she did
not deny, nor therefore exclude, the possibility of there being more to her conversa-
tions with Hernandez than she had admitted. Accordingly, in the absence of any
such denial by Catherine Kinkel in her testimony, and as the basis for the following
4 According to Lodge, he came to work that morning at 8:30 and was only a half hour
late since the pressers were allowed to come in at 7 or 7 :30 or 8 or as long as they put
in 8 hours of work a day . According to Catherine Kinkel, however , Lodge came to work
at 8:50 a.m. and thus an hour and 15 minutes late, since the pressers were to start work
at7am.
Although she testified that some consideration was given the pressers on starting time
because of the heat and humidity in their work , Catherine further testified that for the
2 preceding months the pressers were to start at 7 a.m. rather than 8 a .m. And Ramon
Hernandez , one of the Respondent 's two other pressers at this time , testified that he
began work on July 23 at 7 a in. But , although it is obvious that Lodge was quite late
in getting to work on July 23 and that this irritated Catherine Kinkel, it is unnecessary
to determine just how late he was , in view of her testimony that she discharged Lodge
solely because of his poor pressing.
5Joy Silk Mills, Inc., 85 NLRB 1263, mod. and enfd. In Joy Silk Mills , Inc. v. N.L.R.B.,
185 F. 2d 732 (CA.DC.), cert denied 341 U. S. 914.
6 N.L R . B. v. Mackay Radio & Telegraph Co , 304 U.S. 333.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
factual findings, I credit the consistent but fuller testimony of Hernandez concerning
their conversations before the union meeting of July 22 and on the morning of July 23
when Catherine Kinkel discharged Lodge, all of which indicates Catherine Kinkel's
apparent special, continuing interest in Lodge's union activities up to and including
the very time she discharged him.
Apparently in June, after one of the four union meetings held at Luigi's Tavern,
Catherine Kinkel asked Hernandez whether Lodge had told Hernandez anything
about the Union and, upon Hernandez' negative reply, asked Hernandez to let her
know what he could find out. Several days later, Catherine asked Hernandez if he
"had found out anything about Wilson Lodge in relation to the Union," but Hernan-
dez, although he had signed a union bargaining authorization for Lodge, said he had
been unsuccessful in getting any information for Catherine. Again, during the day
of July 22, Catherine asked Hernandez if he had heard anything about any meeting
that was to take place that day and Hernandez again denied having any such informa-
tion. Then, on the following morning of July 23, Hernandez noticed Catherine
using Lodge's pressing machine and overheard Alice Kinkel asking Catherine "Where
is the chief, the troublemaker'" to which Catherine replied, "He knows where he is
going to go." Later in the morning, Catherine brought in a new presser and Hernan-
dez asked her where Lodge was. Catherine answered, "Wilson Lodge will not be with
us no longer ... I was not satisfied with the work he was doing," and then added, "I
saw you last night [at the Union meeting]. You was with him ... why do you lie to
me, Ray?"
Despite the uncontroverted evidence to this effect and its strong indication that
Catherine Kinkel discharged Lodge because of his union activities, she denied that
this was the reason for his discharge. On the contrary, she testified, she discharged
Lodge on the morning of July 23, solely because, from the time of his hire 3 months
earlier and in spite of her repeatedly warning him and even threatening to discharge
him on one occasion in June, he had continually failed to dry the sweaters which he
steamed and pressed just before they were shipped out, with the result that in three
letters dated May 15, July 10, and July 16, as well as in intervening telephone calls,
Rugby had complained about the Respondent's pressing, and had returned four
sweater lots because of bad pressing, the last of which returns was received by the
Respondent on the morning of July 23 in accordance with telephoned notice given
to the Respondent at 4 o'clock the preceding afternoon. Lodge, however, denied
having received any complaints from Catherine, any of the other partners, or the
examiners either about his work generally or about his turning out wet sweaters,
although he admitted having had to repress some sweaters because they were short.
He denied also that he had been warned of possible discharge and testified that, on the
contrary Catherine Kinkel had told him in June that his work was good.
There is no doubt in my mind upon the present record that: beginning in April,
the Respondent was shipping Rugby sweaters which had been improperly pressed in
that they were still wet when they were packed, with the result that, upon Rugby's
receipt, the pockets sagged and the sweaters were otherwise misshapen; in the letters
and telephone calls to which I have just referred, Rugby had with increasingly sharp
expressions of annoyance, complained about the pressing and intimated that Rugby
was considering terminating its contractual relationship with the Respondent; T sub-
stantial numbers of sweaters were returned by Rugby because of poor pressing and
received by the Respondent in the beginning of May, in June, on July 10, on July 16,
7 Brief quotations from the three letters in evidence provide ample basis for this finding.
On May 15, Rugby wrote:
Bill, if we were to receive this type of quality from any other contractor we would
not be as alarmed as we are over this production from your quality-minded organiza-
tion. Please make it your personal business to check into this pressing situation,
remedy it, and let me know how soon improvement can be expected.
On July 10, Rugby took a firmer attitude
. . . We have tried to be understanding, but what is wrong is wrong; and we have
never seen such a tragic situation where everything up to the point of pressing appears
to be satisfactory and then the goods get ruined in the pressing department. Are,
you powerless to improve this situation, and if you are, we will certainly have to
take some steps to avoid a repetition of this situation for the near and long-term
future.
And on July 16, after repeating its complaint about poor pressing and the Respondent's
failure to meet "at least minimal quality standards," Rugby stated:
We do not intend to continue to express ourselves in this fashion, hoping rather that
you will take the bit in your teeth and deal with this matter promptly.
JOHN KINKEL & SON 753
and finally on the morning of July 23, and the last complaint and notice that sweaters
were being returned was given to partner William Kinkel over the telephone by
Nathan Hirsch, who has full charge of Rugby's sweater department, about 4 o'clock
on the afternoon of July 22 All this appears clear not only from Catherine and
William Kinkel's testimony and from Rugby's letters which are in evidence, but also
from the testimony of Hirsch both as to his telephone calls to William Kinkel,
and the fact that his own examination and repressing of unsatisfactory sweaters
received from the Respondent showed that they had been saturated during pressing
and not dried before they were packed and shipped to Rugby
A number of other elements in Catherine Kinkel's testimony concerning the reason
for her discharge of Lodge on July 23, were also supported by what I regard to be the
credible testimony of the Respondent's two sweater examiners, Mary Herdon and
Madeline Burlew, who counted, inspected, and banded the sweaters pressed by Lodge
and Hernandez, just before they were packed in shipping cartons by Catherine Kinkel
In view of this corroboration and contrary to Lodge's testimony, I find in accordance
with Catherine Kinkel's testimony and that of the two examiners, that
(1) during the 3 months of his employment by the Respondent, sweaters pressed
by Lodge were frequently wet when- they were turned over to the examiners and
packed by Catherine Kinkel
(2) Hernandez work was never damp
(3) Catherine Kinkel often told Lodge to dry the sweaters and for short times his
work improved
(4) at least on one occasion, in about the middle of June according to Catherine
Kinkel, she told Lodge that if his work did not improve, he would have to be replaced 8
(5) the sweaters which were returned by Rugby, with complaints that they had
not been pressed properly, were sweaters which had been pressed by Lodge
But there are other incongruous elements in Catherine Kinkel's own testimony and
that of the Respondent's examiners, which strain credulity in Catherine Kinkel's cen-
tral theme that Lodge alone was responsible for the unsatisfactory condition of the
sweaters shipped to Rugby and that, solely because of this and the possible loss of
Rugby as a customer, she discharged Lodge on July 23 It is apparently true, as she
testified, that "all along," from the time in May when Rugby made the first of its "4,
5, or 6 complaints," she had regarded these complaints as being "serious enough" to
jeopardize the Respondent's retention of its only substantial customer Yet, as she
and the Respondent's examiners further testified, she also knew "all along" that Lodge
was not drying his sweaters, but she nevertheless packed the wet sweaters, knowing
they were still wet, and shipped them to Rugby, without either first letting the sweaters
stand and dry or requiring Lodge to dry them, a precaution which would have avoided
the condition about which Rugby was continually complaining Indeed, from Kinkel's
testimony and that of examiner Mary Herdon, it appears that, despite her repeated
criticism of Lodge for failing to take the time to dry his sweaters, Catherine Kinkel,
herself, was responsible for Lodge's hurrying his work For not only did she testify
that she packed and shipped the wet sweaters because they were "rush orders" and
"we had to get the work out," but Herdon testified specifically that Catherine Kinkel
had urged Lodge and Hernandez every day, and in July several times a day, "to get
the work out more quickly so that they [could] keep up with the demand for
deliveries " Moreover, in spite of Catherine Kinkel's professed concern about the
possible consequences of Lodge's poor work if she permitted it to continue, she waited
for 3 months after she first realized his work was unsatisfactory, for more than 2
months after the Respondent's receipt of the first of Rugby's complaints, and for
more than 1 month after she says she threatened to discharge him, before she actually
discharged and replaced him And then, her belated action coincided not only with
Rugby's last complaint and return of some of the sweaters but also with apparent
confirmation in her own mind, as the result of her surveillance of the union meeting
the preceding night, of the fact that Lodge was one of the employee-leaders in the
Union's organizational campaign Finally, it is to be noted that, although Rugby's
pressure for deliveries was continuing, she then chose to replace Lodge, who by this
time had 3 months experience and might reasonably have been expected to correct his
failure to dry the sweaters if he were more adequately and firmly supervised, with two
other completely inexperienced pressers John Alston, who had started to work for
the Respondent a week earlier and Richard Brooks, who had filed an earlier applica-
tion but whom Catherine Kinkel first contacted by telephone after 8 o'clock in the
morning of July 23 and who reported for work the same morning and thus just
before Lodge came to the plant and was discharged
8 Mary Herdon testified she heard Catherine Kinkel gn e such a warning to Lodge sev
eral times Catherine Kinkel howe%er testified as to only one such warning in June
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In her testimony, Catherine Kinkel offered a number of answers to the questions
thus raised as to whether she actually discharged Lodge for his poor work imperiling
the Rugby contract rather than for his union activities Other than to say that she
was busy training the new staff at the New Shrewsbury plant and getting out "rush
orders," she suggested no explanation to justify her placing upon Lodge's shoulders
the sole responsibility for hurrying his pressing of Rugby's sweaters and failing to
dry them, and at the same time, to excuse herself from responsibility for urging
Lodge to burry, for failing to insist that the sweaters be dried, and for knowingly
shipping Lodge's wet sweaters to Rugby As to her delay of several months in dis-
charging and replacing Lodge with another presser, Catherine Kinkel offered three
explanations (1) The Respondent's "policy to give everyone a fair chance, espe-
cially learners," coupled with optimism that Lodge's work would improve, (2) the
pressure of training an entirely new staff and getting out "rush orders", and (3) her
inability to secure an adequate replacement for Lodge as shown by the fact an adver-
tisement for a presser, inserted in a single issue of a local newspaper on June 10,
brought "little response "
Upon consideration of Catherine Kinkel's testimony and that of the Respondent's
two examiners, I cannot accept her explanations of why she waited so long before
discharging Lodge, nor, therefore, her testimony that she eventually discharged him
because of his poor pressing rather than because of his union activities As shown
by the evidence, for almost 3 months she herself had hurried Lodge's pressing and
had packed and shipped his sweaters to Rugby, knowing not only that the sweaters
were wet and that this could be avoided by taking the simple additional step of dry-
ing them or permitting them to dry, but also that because she had been shipping the
sweaters in their wet condition, complaints were being continually received from
Rugby and the Respondent might therefore lose its contract with Rugby During
this period, Catherine Kinkle was certainly aware of her own responsibility for the
trouble that was developing, and her failure to take firmer action with respect to
Lodge, even short of discharging him, indicates that she did not blame him to the
extent she would have the Board believe Instead, she apparently made the deliberate
-choice of hurrying his pressing, and shipped the sweaters as they were, to meet
required delivery dates in the hope that the sweaters would nevertheless maintain
their shape Moreover, in view of her and the Respondent's concern about the pos-
sible loss of the Rugby contract, it is incredible, if Catherine Kinkel had actually
regarded Lodge's poor work as being responsible for Rugby's complaints, she would
have waited for almost 3 months before discharging him and would then have dis-
charged him abruptly, as she did, instead of retaining him and taking stronger meas-
ures to correct his deficiency at least until an adequate replacement was hired or
trained In this connection, I am not impressed with, and therefore reject, the
Respondent's claim that its single insertion of an advertisement for another presser
a month and a half before Lodge's discharge shows a serious attempt on the Respond-
ent's part to replace Lodge or that the "little response" which single advertisement
evoked demonstrates the Respondent's inability to secure an adequate replacement
Upon the evidence which relates to Lodge's discharge, all of which I have just
discussed in detail, I am of the opinion and conclude that the Respondent, acting
through partner Catherine Kinkel, discharged Lodge on July 23 because of his union
activities of which it had known for several months and his leadership the Respondent's
suspicion of which had been confirmed by Catherine Kinkel's surveillance of the
Union's meeting the preceding night, and not because of his poor work Accord-
ingly, I find and conclude that by discharging Wilson Lodge on July 23, the Respond-
ent discriminated against him in regard to his hire and tenure of employment in order
to discourage membership in the Union, and thereby committed an unfair labor prac-
tice within the meaning of Section 8 (a) (1) and (3) of the Act
Upon learning of the Respondent's discharge of Lodge on July 23, a considerable
number of the Respondent's employees walked out of the plant in protest against
the discharge and began a strike in which some of them were still engaged at the
time of the present hearing in December 1964 I find and conclude that the strike
which thus began on July 23 and which still continued at the time of the hearing was,
and continued to be, a strike caused by the Respondent's unfair labor practice in dis-
charging Wilson Lodge
C The discharge of Eugene Sai age on July 23, 1964
The Respondent also discharged Eugene Savage on July 23 Savage had been
hired by the Respondent in March and worked as a porter and occasionally as a
substitute operator of the washing and dry cleaning machines He signed a union
membership application and bargaining authorization on July 13 and attended four
JOHN KINKEL & SON 755
or five of the Union's meetings including the July 22 meeting at Luigi's Tavern when
he may have been seen by Catherine and Alice Kinkel who, it will be recalled, sat
in their car in the parking lot, watching the employees enter the meeting that night.
At the union meeting 2 weeks earlier, he made a motion that the Union petition
the Board for a representation election among the Respondent's employees.
Savage did not report to work on the morning of July 23 but telephoned during
the day that he was unable to come in because he was going to North Carolina where
his baby was ill and was not expected to live. Either Catherine or Alice Kinkel
received the call and told Savage not to come to work again. While this appears
clear, Savage's testimony conflicts with that of Catherine and Alice Kinkel as to the
time of day Savage telephoned, with whom he talked, and the full substance of the
conversation.
Savage testified that he telephoned at about 10 o'clock in the morning, the time
he had been instructed to come to work that day; that he spoke with Catherine
Kinkel and gave her his excuse for not reporting; and that Catherine told him not to
bother coming back to work and then asked him whether he had joined the Union.
In passing, it should be noted that if Savage's testimony is accepted, he made his
telephone call at about the time the employees walked out of the plant that morning
because of Lodge's discharge.
Catherine Kinkel, however, denied that she had spoken to Savage that morning
and, specifically, that she asked him whether he had joined the Union. But Alice
Kinkel testified that she received Savage's telephone call between 5:30 and 6 o'clock
in the afternoon, and that he then told her he was "going down South ... [because]
his daughter was ill." According to Alice Kinkel, she told Savage, "We've just about
had it now. You took too much time off already. We'll have to replace you with
someone who [will] work steady." Like Catherine, Alice Kinkel denied mentioning
the Union to Savage in this conversation.
Savage made a trip to North Carolina. On his return, he visited the plant on
Monday or Tuesday, July 27 or 28, to get his pay, and went through the picket line
which the Union had set up. It is undisputed that Catherine Kinkel suggested at
that time that he see partner William Kinkel if he wanted to return to his job, but
that -he did not follow her suggestion. Savage testified that he merely asked for his
pay, that Catherine Kinkel asked whether he had joined the Union, and that, when
he said he had not joined, she suggested he see her brother, Bill, about coming back
to work. Savage explained in his testimony that he did not ask William Kinkel
about coming back to work because Kinkel was busy at the time and "I wouldn't
cross the picket line anyway." But Catherine Kinkel testified that Savage actually
asked her whether he could come back to work "because his daughter was sick and
he needed the money." She also denied that she asked Savage on this occasion
about his having joined the Union.
To support her claim that she discharged Savage (as she says she told him) because
he had taken "too much time off already," Alice Kinkel testified that he "was always
late"; that he took time off without permission "at least once or twice a week, at
least 6 or 7 weeks" before she discharged him; and that Catherine had spoken to
Savage about it in Alice's presence. Catherine Kinkel (although not having Savage's
record before her at the moment) testified merely that she "thought he had been
absent before July 23."
But Savage testified that his working hours varied; that, in accordance with the
Respondent's instructions, he reported to work early on some days and on others,
at 9:45 or 10 o'clock; that he never stayed out without permission; and that he had
never been warned about absenteeism. Furthermore, the Respondent's records and
a summary of the hours worked by its employees, do not show such flagrant absentee-
ism or loss of time on Savage's part as Alice Kinkel says was the reason for her
discharging him. A summary of the numbers of hours worked by Savage each
week, which she prepared from the Respondent's records, shows that only during 3
of the 12 full weeks immediately preceding his discharge, did Savage fail to work
the full 40-hours which Alice Kinkel testified was adequate; i.e., in each of the weeks
ending July 4 and 11, he worked 33 hours and in the week ending June 27, he worked
only 37'/2 hours. However, as will be noted, the week ending July 4 was only a 4-day
week because of the holiday, and Savage therefore lost no working time at all that
week. And, as the Respondent's summary of its work records also show, during each
of the 8 weeks preceding June 27, the time which Savage worked far exceeded the
normal 40-hour workweek, since for these weeks beginning with the week ending
May 9, the respective numbers of hours he worked were 43, 531/2, 691/4, 521/2, 411/4,
411/4, 591/2, and 521/2. Thus, according to the Respondent's records and in sharp
221-374-66-vol 157-49
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contrast with the Kinkel sisters' testimony for the 12 weeks preceding his discharge,
Savage took off a total of 91/2 hours and more than made up for it with 823/4 hours
(or the equivalent of more than 2 weeks) of overtime work.
Upon consideration of the foregoing evidence, I not only conclude that Catherine
and Alice Kinkel's explanation of Savage's discharge for tardiness and absenteeism
had no plausible basis in fact, but I also credit Savage's firm and clear testimony
(although he was obviously a reluctant witness for the General Counsel) that
Catherine Kinkel twice questioned him as to whether he was a member of the
Union, first when she discharged him in their telephone conversation on July 23
and again on the following Monday or Tuesday when he came to the plant for his
pay and she suggested he might ask William Kinkel whether he could return to work.
Catherine Kinkel's questions certainly furnish strong indication that she believed
Savage was in fact a union member and this was the reason she discharged him.
Moreover, such a conclusion is fortified by the general circumstances of Savage's
discharge which have already been considered. From all this, I am of the opinion,
and find, that, like Lodge with whom he had attended the union meeting spied upon
by Catherine and Alice Kinkel the night before, Savage was discharged by Catherine
on the morning of July 23 because she believed he had joined and was supporting
the Union in its organizational drive and, in Savage's case, also because she, suspected
that by failing to come to work that morning he was in effect joining the other
employees in their walkout protesting Lodge's discharge.
In sum, I conclude that by discharging Savage on July 23, the Respondent dis-
criminated against him in regard to his hire and tenure of employment because it
believed he was a member of and supported the Union, and in order to discourage
membership in, and support of, the Union; and that it thereby committed unfair
labor practices within the meaning of Sections 8 (a) (3) and (1).
D. The refusal to bargain on and since July 30, 1964
1. The Union's attempt to secure recognition and the position taken
by the Respondent
By telegram transmitted on July 28, the Union notified the Respondent of its
claim that it represented a majority of the Respondent's employees, demanded rec-
ognition as collective-bargaining agent, and asked that the Respondent communicate
with Edward Hinz, business manager of its local in Long Branch, New Jersey, to
arrange the time and place for beginning negotiations.
On the following day, July 29, the Respondent notified Business Manager Hinz
by telegram that:
Our firm stands ready to negotiate at all times with any duly authorized agent
of a majority of our employees. If you can furnish proof of majority repre-
sentation, we are prepared to enter into further discussions with you.
Later on the same day, July 29, the Union replied to the Respondent by telegram:
We are prepared to demonstrate majority by card check against your payroll.
Are you prepared to extend recognition if such card check shows majority
representation.
Pursuant to arrangements then made by telephone, a meeting for the purpose of
making a card check was held at the Respondent's plant on July 30 between Attorney
Irving Leuchter, Business Managers Hinz, Detlefsen, and Rosen (appearing for the
Union) and Attorney Robert Garibaldi, and partners William, John, and Alice
Kinkel (appearing for the Respondent). The conversation which took place was
between the two attorneys and its material substance is not in dispute. The attorneys
agreed that, for the purpose of the card check, the Respondent's payroll for the week
ending July 25 should be used but this was as far as they were able to go. Leuchter
had the Union's authorization cards with him, said he had 35 cards, and offered to
produce them provided the Respondent would agree to recognize the Union as
collective-bargaining representative if a comparison of the signatures on the cards
with those of the employees on their tax withholding authorizations indicated that
a majority of the Respondent's employees on the payroll for the week ending July 25
had actually signed the cards. Attorney Garibaldi said at one point in the conversa-
tion that, if Leuchter had 35 valid cards in his possession (as he claimed), the Union
JOHN KINKEL & SON 757
did have a majority.9 But Garibaldi rejected Leuchter 's proposal that the Respond-
ent be bound by apparently authentic employee-signatures on the cards since
(although he did not give the number or names of the particular employees) he
said that the Respondent had information that the signatures of some of the employr
ees had been procured by coercion or misrepresentation . Leuchter then said that, in
view of the Respondent 's position , a card check would be meaningless . Garibaldi
suggested that the representation question be decided in a Board election, but Leuchter
refused, saying that if the question could not be resolved by a card check , it would
have to be decided by the Board upon the Section 8(a)(3) and ( 5) charges which
the Union had already filed in the present case on July 28. The meeting thus ended
without the Union 's production of its authorization cards. -•
On the following day, July 31, the Respondent filed with the Board's Regional
Director its petition for a certification of representatives under Section 9(c) of the
Act, asserting therein that there were 58 employees in the bargaining unit which
the Union sought to represent . By letter, the Regional Director thereupon requested
the Respondent to furnish an alphabetical list of the employees within the unit,
including "employees who are ill , on vacation , in military service, or temporarily
laid off." On August 17, the Respondent 's attorney furnished a list of 60 names as
being those of the employees on the Respondent 's payroll "for the week ending
July 25, 1964." Then, on August 25 , partner William Kinkel also forwarded to the
Board's Regional Office "a supplemental list of [17 ] employees who at the time I
compiled the [July 25 payroll ] list were either sick or on leave of absence." How-
ever, on the same day, August 25, the Regional Director notified the Respondent by
letter, that as a result of his investigation of the Union 's 8(a)(3 ) and (5 ) charges in
the present case, he had decided to issue a complaint against the Respondent and
was therefore dismissing the Respondent 's representation petition.
As a result of the Regional Director 's action, the question of the Union 's repre-
sentation of the Respondent 's employees was left for determination in the present
unfair labor practice proceeding.
2. The appropriate unit
The complaint in the present case alleges , the Respondent 's answer admits, aad I
find, that all employees employed by Respondent 's New Shrewsbury plant, excluding
office clerical employees, professional employees , guards, and supervisors as defined
in the Act , constitute a unit appropriate for the purposes of collective bargaining
within the meaning of the Act.
The parties differ in their positions as to the exact number and identities of the
employees included in this unit as of July 28, the date of the Union 's bargaining
demand . Furthermore , in challenging the Respondent 's argument for the inclusion
of certain persons as employees on leaves of absence, the General Counsel and coun-
sel for the Union attack the Respondent 's good faith. For an understanding of the
positions of the parties on these matters, convenient starting points are furnished by
the lists of purportedly active employees and employees on leave during the week
ending July 25, which the Respondent submitted to the Regional Director in the
representation case on August 17 and 25, respectively.
During the hearing, the Respondent agreed with the General Counsel and the
Union that 2 of 60 persons whose names the Respondent had included in the active
payroll list for July 25 were not employees in the unit on the critical date.10 At
the hearing , the Respondent also amended its position with respect to the employees
it had included on this active payroll list, by contending that three more of these
people ( Wilson Lodge, Eugene Savage, and Delphina Dominguez ) had been erro-
neously listed , inasmuch as the first two had been recently discharged and the third
6 This particular finding is made upon the testimony of Leuchter , which is plausible
and therefore credited , since, as will be seen , the Respondent in thereafter petitioning the
Board for an election relied at first upon a total payroll of 58 or 60 employees as con-
stituting the appropriate bargaining unit. In testifying about the meeting of July 30,
William Kinkel did not deny that , Garibaldi had made the statement attributed to him
by Leuchter.
10 Richard Kinkel ( the son of partner John Kinkel) and Mamie Williams ( who was dis-
charged on July 20).
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had quit, and that the three were therefore no longer employees of the Respondent
on July 28. Finally, the Respondent further amended its position as to the inclusion
in the unit of the 17 persons it named on the supplementary list of names submitted
to the Regional Director on August 25 as being "sick or on leave ," by deleting the
names of 5 of these persons from this list,11 by adding 1 additional name,12 and by
transferring one name from the active -employee list to the list of employees it claimed
were on leave on July 25.13 In sum , according to the Respondent 's present position,
there was a total of 68 persons in the appropriate unit on July 28, of whom 54 were
on the active payroll and 14 were sick or on leave.14
The General Counsel and the Union , on the other hand , contend that Lodge,- Sav-
age, and Dominguez must be included in the appropriate unit as of July 28 since
Lodge's and Savage's discharges on July 23 were unlawful and Dominguez was actu-
ally on leave on that date when the unfair labor practice strike began . Furthermore,
the General Counsel and the Union contend that Lena Hughes (who worked for the
Respondent until July 17 and whom the Respondent did not list either as an active
employee or an employee on leave ) was actually an employee on leave at the time
the strike began and should therefore be included in the unit as of July 28. Finally,
the General Counsel and the Union contend that none of the 14 persons named by
the Respondent as being on leave, was actually in that status on July 28. They
contend that each of these 14 persons was merely an ex -employee whose employee-
relationship with the Respondent had terminated well before July 28 and that he
was therefore not an employee in the appropriate unit on that date . In brief, the
General Counsel's and the Union 's position is that there was a total of 59 employees
in the appropriate bargaining unit on July 28, consisting of Lodge and Savage (who
had been discriminatorily discharged ), Delphina Dominguez and Lena Hughes (the
only 2 employees actually on leave ), and 55 other employees who were on the active
payroll at the time the strike began.
Since I have already found that the Respondent discriminatorily discharged Wilson
Lodge and Eugene Savage on July 23, I now conclude , in agreement with the Gen-
eral Counsel 's and the Union's contention and contrary to that of the Respondent,
that Lodge and Savage are to be counted as employees in the appropriate bargaining
unit notwithstanding their discharges . The evidence presents different questions as
to the status of Delphina Dominguez and Lena Hughes, whom the General Counsel
and the Union would also include in the unit as employees on leave as of July 28,
but whom the Respondent would exclude.
Delphina Dominguez began working for the Respondent during the week ending
April 18 and continued to work up to and including Friday, July 24, the date after
the strike began and the Union 's picket line appeared at the Respondent 's plant.
According to partner Alice Kinkel, Dominguez then told her, "I quit because I can't
stand all this trouble ." According to Dominguez ' testimony she told Miss Kinkel
she did not want to work anymore at the Respondent 's plant and that her previous
employer, "Savage ," had called her back . In fact , she did go back to work for "Sav-
age" the following Monday, July 27. But that afternoon (July 27), she was visited
by employee Ramon Hernandez at her home and, at his urging , although she told
him she was working elsewhere , she signed one of the Union's authorization cards.
Thereafter , she received and cashed a strike-benefit check given to her by the Union,
although she testified she had first refused to take the check and then did so reluc-
tantly. Although she continued to work for Savage , she did return to work for the
11 Theresa Chinappi , Elizabeth Monahan, Elsie Smith, Veargain Tucker, and Victor
Vidal.
12 Jennie Lorenson.
13 Ingetraut Swetits.
34 In its brief ( pp. 2 and 3 ), the Respondent presents the same summary of its changes
in position concerning the composition of the unit on July 28, with two exceptions. It
does not refer to its contention during the hearing that Wilson Lodge was to be excluded,
and it erroneously refers to its addition during the hearing of the name of Carol Hampton
to its list of employees on leave, although her name actually had appeared on the list
originally submitted to the Regional Director. Moreover , in computing the numbers of
active employees and those on leave status , it apparently fails to take into account its
transfer of the name of Ingetraut Swetits from the former to the latter category during
the hearing. (See preceding footnote and text. ) As a result of this and a further ap-
parent error in its count, the Respondent's brief states its position to be that the ap-
propriate unit on the critical date consisted of 56 employees on the active payroll list and
13 employees on leave ; i.e., a total of 69 employees . My consideration of the record
shows that the substance of the Respondent's position as to the numerical composition
of the appropriate bargaining unit on July 28 is actually what I have set forth in the text.
JOHN KINKEL & SON 759
Respondent for one day , September 21, at the Union 's intercession for her and other
employees of the Respondent who were on strike. (Her reinstatement and that of
some of the other employees on September 21 will be considered below. ) But after
working one day, she again returned to work for Savage.
Dominguez was in fact listed by the Respondent as a continuing employee not
only in the list of employees submitted to the Regional Director on August 17 but
also in a later summary of the names of active and laid off employees which the
Respondent also submitted to the Regional Director on September 25, and, as just
noted, she was reinstated , albeit for only 1 day, at the Union 's request in September.
Apparently, until the hearing , the Respondent did not question her continuing
employment status Thus , it appears to me that the Respondent did regard her as
an employee whose work was merely interrupted by the strike , and who therefore
was in the position of a striker . Even assuming she told Alice Kinkel, as the later
testified , that she "quit" because she could not "stand all this trouble ," such a state-
ment, as the General Counsel points out in his brief, when made under the existing
circumstances might well indicate merely that she would not continue to work dur-
ing the strike and this was obviously the construction placed upon her remark by
Alice Kinkel Finally , Dominguez ' subsequent conduct in signing the Union's author-
ization card, in accepting the Union 's strike benefit payment, and in returning to
work ( even though she may have been reluctant ) all points to the same interpreta-
tion. Because of all this, I am of the opinion that on and after July 24, Dominguez
merely refused to work under strike conditions , that she did not quit her job nor did
the Respondent believe she had, and that on and after July 24, both she and the
Respondent believed she would return to work when things quieted down . Accord-
ingly, I find , as the General Counsel and the Union contend , and contrary to the
Respondent 's eventual positions at the hearing , that on July 28 Dominguez was an
employee on leave because of the strike and was therefore still an employee in the
appropriate unit.
Lena Hughes worked for the Respondent for only 4 weeks ; i.e., for the week ending
June 27 through the week ending July 18 and was not mentioned by the Respondent in
any of the lists of employees submitted to the Regional Director. The Respondent
contends that she quit on Friday, July 17, but the Union and the General Counsel,
relying on Hughes' testimony , contend that , under the Respondent 's liberal leave
policy, she should be regarded as having been on leave when the strike began on
Thursday, July 23.
Hughes testified that, on receiving a telegram on a Saturday , she immediately left
her home in New Jersey to visit her sister who had become suddenly ill and was
hospitalized in Hartford, Connecticut. She testified that, although she did not first
tell the Respondent she would be away from work, she did write and mail a letter toy
Catherine Kinkel on Sunday asking that her job be held for her; that, in all, she was
away from New Jersey for a week and 4 days, that she returned on Thursday night,
July 23, and went to the Respondent 's plant the next morning , that, seeing the picket
line, she waited until the afternoon and then entered the plant with the Union's
organizer , DeYoung, and the police chief ; that Catherine Kinkel, and then Alice
Kinkel, both told her she had quit; and that Catherine Kinkel also said, with a wave
of her hand toward the picket line, "You went with them."
Catherine Kinkel, however, testified that Lena Hughes had in fact quit on Friday,
July 18, telling Catherine that she was "moving out of the area "; that she ( Catherine)
did not recall ever having received a letter from Hughes; that when Hughes came in
for her pay a week later, there was no mention of any letter nor any denial by Hughes
that she had quit; that Catherine merely gave her her pay; and that aside from
Catherine's asking her to return a scissors , there was no other conversation. In sup-
port of this version of Hughes' termination of employment, employee Hilda White
testified that, before quitting time on Friday, July 17, Hughes had told her in a con-
versation about the Union, that she ( Hughes ) "didn't care because she was going to
quit anyway . . . that she was going to go away." Hughes denied having any such
conversation with any employee.
Upon consideration of this testimony , I credit the testimony of Catherine Kinkel
and Hilda White. Accordingly, I find that Lena Hughes quit her job on Friday,
July 17, and , that, in accordance with the Respondent 's contention and contrary to
that of the General Counsel and the Union , she was not an employee of the Respond-
ent in the appropriate unit on July 28.
A number of general, preliminary observations should be made concerning the evi-
dence and the applicable principles relating to the disputed leave status of the 14
persons who the Respondent contends should be included in the appropriate bargain-
ing unit as of July 28, 1964 One of these persons (Carol Hampton ) was actually
not an employee on leave but a new employee hired on July 27, the day before the
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union made its bargaining demand upon the Respondent. Another 3 of the 14 per-
sons on the Respondent's leave list had worked for the Respondent only in Union
City until the middle or end of December 1963 and not at all in the 7 months the
Respondent's plant had been relocated in New Shrewsbury.15 As to these three
persons, the Respondent contends that each of them had asked for time to move to
the New Shrewsbury area or to secure suitable transportation from their homes near
the Respondent's old Union City plant, and that the Respondent had agreed to
employ them when they were able to do so. Finally, the remaining 10 persons on the
Respondent's leave list were New Shrewsbury women employees of varying lengths of
service, to whom the Respondent says it granted leaves of absence on dates ranging
from a few weeks to 7 months before July 28, 1964, either because the employee or a
member of her family was ill, or, in the cases of two of them, because it was necessary
for them to stay at home to care for their children while they were not at school
during the summer. In all but these last two cases, the leave which the Respondent
says it granted was of indefinite duration. Moreover, in all but one of these 10
"leave" cases, the Respondent although assenting to the employee's taking time off or
"leave," gave no assurance to the employee that she would be able to return to work
when she wanted to do so if her job had been filled in the meantime and the Respond-
ent had no work for her. As a matter of fact, it appears from the testimony of
partner Alice Kinkel that the Respondent, though professedly liberal in granting
lengthy "leaves," actually had no established or announced policy or practice of taking
employees back from their "leaves" unless their jobs were still available and Alice
Kinkel, in the only two specific instances as to which she was questioned, told employ-
ees Esther Longhini and Rudene Barrazo when each of them asked for her leave, that
the Respondent would take her back "if we had work for her."
The foregoing general summary presents the factors which I have considered in
evaluating the Respondent's contention that any or all of the 14 persons it has listed
were such employees on "leave of absence" as to be within the appropriate bargaining
unit on July 28, 1964. For they all bear upon the question of whether any of these
people had such a "reasonable expectation of reemployment within a reasonable time
in the future," 16 that they may be said to have the "present interest in the terms and
conditions of employment" which the Board and the courts have found would entitle
them to participate in the selection or rejection of a bargaining representative for the
employees in the appropriate unit 17
In applying the indicated test, consideration has been given not only to the absence
of 'any general policy or practice on the part of the Respondent assuring employees
on leave of an unqualified right to return to work when they were ready to do so, but
also, in each case, to the substance of the conversation between the employee and
partner Alice Kinkel at the beginning of his or her "leave of absence"; the originally,
reasonably expected duration of the "leave"; its actual duration before the critical
date of July 28; and the contacts (if any) between the Respondent and the particular
employee in the intervening period. Upon the details of the relevant evidence, to
which I now turn in each case, I have concluded that, of all the persons whom the
Respondent claims were on leave, only Jennie Lorenson and Ingetraut Swetits can
be said to have had such a "reasonable expectation of reemployment within a reason-
able time in the future" as to warrant their inclusion in the appropriate bargaining
unit on July 28, 1964. Carol Hampton, however, will be counted in the unit as of
that date not as an employee on leave but as an active employee newly hired on
July 27.
1. Anthony D'Amato: Anthony D'Amato is one of the 17 people whom the
Respondent originally named as being on leave in the list submitted by it to the
Regional Director in the representation case on August 25. Furthermore, D'Amato
was listed as having worked full 40-hour weeks for each of the 4 weeks ending May 2,
9, 16, and 23, 1964, in a table which Alice Kinkel prepared and submitted to the
Regional Director and which purported to set forth the numbers of hours worked
each week by all the employees at New Shrewsbury between January 1 and August 22,
15 In this group, for reasons hereinafter set forth in my detailed consideration of the
evidence, I Include Anthony D'Amato although he testified, and the Respondent produced
timecards to show, that he did work for the Respondent in the New Shrewsbury plant for
4 weeks in the month of May 1964.
11 N.L.R.B. v. Atkinson Dredging Company, 329 F. 2d 158, 160-164 (CA. 4) ; Whiting
Corporation v. N.L.R.B., 200 F. 2d 43, 45 (C.A. 7) ; N.L R.B. v Jesse Jones Sausage Co.,
et al., 309 F. 2d 664, 665 (C.A. 4) ; Marlin-Rockwell Corporation v. N.L R B., 116 F 2d
586, 588 (C.A. 2).
'17 The Horn & Hardart Company, 147 NLRB 654, 659-660 And see also the cases cited in
the preceding footnote.
JOHN KINKEL & SON 761
1964. In addition , at the hearing in the present case, Alice Kinkel produced its
May 1964 timecards which were received in evidence on an offer made by counsel
for the Union in connection with an attack made by him on the authenticity of what
purported to be D'Amato's cards . Aside from the testimony of D'Amato himself
and these various papers and cards, there was no evidence given as to whether the
Respondent actually had any understanding with D'Amato that he was on "leave"
on July 28, 1964, or whether he had worked for the Respondent as recently as May
1964. Not only did none of the Respondent-partners or their witnesses testify as to
these matters , but not one word about D'Amato or the Respondent 's claim that he
was an employee on leave and therefore in the appropriate bargaining unit on July 28
is to be found in the brief which the Respondent 's counsel has submitted to me.
It is undisputed that D'Amato, a shipping and receiving clerk living in Jersey City,
worked for the Respondent in its Union City plant from June 1959 until December
1963. According to his testimony given as a witness subpenaed by the General
Counsel , he also later worked for the Respondent at the New Shrewsbury plant for
the month of May 1964 , during which time he commuted via two buses between his
Jersey City home and Red Bank, New Jersey, and walked for half an hour the
remainder of the way between Red Bank and the Respondent 's plant at New Shrews-
bury. D'Amato explained his 4-month cessation of work for the Respondent and
his brief resumption in May by testifying that the Respondent had asked him in
December 1963 to work at the New Shrewsbury plant but he had said "It was too
far to come down and [he] would wait a while"; that , although he eventually did work
about 4 weeks in May at New Shrewsbury on a "trial basis," he then told Catherine
Kinkel "It was too much , that I couldn 't make it"; and that his next contact with the
Respondent was in August 1964, when he told Catherine "I might move down with
my sister in Toms River, that I might want to come back after Labor Day but it
never came off."
Even if this evidence were accepted on its face as true, I would find that on July 28,
D'Amato had no such "reasonable expectation of reemployment within a reasonable
time -in the future ," as would have made him an employee on leave of absence
entitled to participate in the choice or rejection of a bargaining representative by the
Respondent 's employees in the appropriate bargaining unit . But the General Coun-
sel's and the Union 's challenge of D'Amato 's testimony that he actually worked for
Respondent as late as May 1964 requires consideration in another connection , since,
as I have noted , it raises an important question as to the Respondent 's general veracity
and good faith in claiming upon the basis of their records and supplementary evi-
dence, that D'Amato or , for that matter , any of the other persons included by the
Respondent in the same category, should be included in the appropriate bargaining
unit as employees on leave of absence on July 28. Thus, whether D'Amato actually
worked for the Respondent for 4 weeks in May 1964 ( as he testified , as the Respond-
ent claims , and as the timecards produced by it purport to show ) has a critical bear-
ing upon the general credibility of the Respondent 's position and its evidence, and
particularly upon the good or bad faith of the Respondent in refusing to bargain
with the Union unless, in determining the Union 's majority or lack of majority,
D'Amato and the other 13 persons named by the Respondent as also being on leave
were counted in the bargaining unit. Therefore , to discredit D'Amato's testimony
and the Respondent 's claim that he worked for it in New Shrewsbury and as recently
as May 1964 , the Union and the General Counsel attacked D'Amato's testimony
concerning his commuting timetable and also the authentitcity of his "timecards"
which the Respondent produced as being consistent with, and supporting, his story.
D'Amato testified that, for the 4 weeks in May, he left his Jersey City home about
5:10 a.m., took a bus to the Public Service bus terminal at Journal Square, Jersey
City, and there transferred to a "Public Service" bus which left at 5:30 a.m. for
Asbury Park ( its southern terminal ) and arrived and deposited him at Red Bank
a way point , 11/4 hours later or at about 6:45 a.m. According to his testimony, he
then walked for a half an hour to the Respondent 's plant thus bringing him there
well before 8 o'clock and enabling him to punch the plant timeclock a few minutes
before the starting time of 8 o 'clock, as the inkstamps on his "timecards " produced
by partner Alice Kinkel would show that he did . Concerning his afternoon trip
homeward, D'Amato testified that he quit work at 4:30 p.m. ( as the stamps on his
"timecards" would also show ); that at 5 or 5:30 p .m. after his half-hour return walk
to Red Bank , he boarded a bus of the same line returning on the same route from
Asbury Park to Jersey City . According to D'Amato, if he had missed his morning
or evening bus, the next bus he could have taken in the morning, left Journal Square
about 9 a m . and the next bus in the evening left Red Bank for Jersey City about
6:30 or 6:45 p.m.
762 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
To demonstrate the impossibility of this timetable, counsel for the Union produced
the testimony of William Pulver and William Bates, who were respectively the gen-
eral manager and the early morning busdriver for the North and South Bus Com-
pany, which, at the time in question and according to their testimony, operated the
only public bus franchise between Journal Square, Jersey City and Red Bank. From
their testimony, which I credit, it appears that the only bus which left Journal Square
early in the morning for Red Bank departed at 5:15 a.m., with the next bus scheduled
to leave at 9 a.m.; and that the afternoon return trips from Asbury Park, passed
through Red Bank at 4 p.m. and then again at 8 p.m. Thus, while D'Amato may
have been confused in his testimony that his morning bus trip began at 5.30 a.m.
instead of 5.15 a.m. the only afternoon bus he could possibly have taken on his return
trip from Red Bank, left Red Bank at 4 p.m., a half hour before he testified, and his
"timecards" would show, he left the Respondent's plant to begin his half-hour walk
to Red Bank. In view of this alone, I would conclude that D'Amato's testimony of
having worked for the Respondent at New Shrewsbury in May was a complete fabri-
cation, as were also his May "timecards" which partner Alice Kinkel produced at
the hearing.
This conclusion finds further support in the testimony of J. Howard Haring, a
qualified, disputed documents expert, who examined all the timecards of the Respond-
ent's employees for May 1964, which partner Alice Kinkel produced at the request
of counsel for the Union and which included timecards for that period which pur-
ported to be those of D'Amato. In producing these cards, Kinkel had testified that
each card bore an individual number for each employee, that there was no duplica-
tion of any number for any week, and that the cards were left for the employees' use
in slots bearing numbers corresponding to the card numbers. Yet, among the cards
produced for the week ending May 23, 1964, D'Amato's card bore the same number
(#58) as that of another employee (E. Stella Evans) for the same week. Finally,
the documents expert testified that, in addition to this, his examination and compari-
son of the May timecards for all the employees, revealed that D'Amato's card and
that of one other employee (Rudene Barazzo who, incidentally, is also on the
Respondent's list of employees, on leave as of July 28) was printed on thicker stock
and showed differences from the rest of the cards in the printing.
The expert testimony to which I have thus referred was given on what turned out
to be the last day of the hearing although I adjourned the hearing for several weeks
to give the Respondent and its counsel an opportunity to examine the timecards and'
to have them examined by a documents expert of their own in the light of the evi-
dence submitted by the Union's expert, and then on the adjourned date, to offer such
explanatory evidence as it cared to produce. After several weeks, however, counsel
for the Respondent informed me by letter that he did not intend to submit any further
evidence, and that he would leave the record as it stood. Accordingly, I then closed'
the hearing Furthermore, as I have noted, the Respondent not only did not produce
the testimony of any of its witnesses concerning the D'Amato situation and does not
refer in its brief to the claim it had made before and during the hearing that D'Amata
was on leave of absence and therefore an employee included in the appropriate unit
on July 28.
Upon the foregoing considerations, I not only reject the Respondent's claim that
D'Amato be included in the unit, but I specifically find that D'Amato last worked
for the Respondent at its old Union City plant in December 1963, that the Respond-
ent's claim concerning the inclusion of D'Amato in the appropriate unit was not made
in good faith and that the "timecards" of D'Amato which the Respondent produced
for May 1964 were fabricated. The further effect of these findings will be considered
in dealing with the Respondent's defense to its alleged refusal to bargain in violation
of Section 8 (a) (5) of the Act.
2. Donald Steptoe: Steptoe worked for the Respondent in the Union City plant
from about July 27, 1963, to December 21, 1963, as a presser and then, after a
10-month interval, in the New Shrewsbury plant from October 2, 1964, up to the
hearing in the present case in December 1964. The Respondent's claim that he
was on leave of absence on July 28, 1964, and therefore within the appropriate bar-
gaining unit as of that date, is based solely upon partner Alice Kinkel's testimony
that in December 1963, Steptoe said "he still wanted to work with us and that ...
he had intentions of moving down here"; that Miss Kinkel told him "we would,
certainly keep his job open for him, and whenever he is ready to come in, he should
let us know"; that Steptoe "called us a number of times and said that he wanted to
come down and at that time he was waiting to buy a new car "; and that , finally, in
September 1964, he told her he had a car and would return to work.
JOHN KINKEL & SON 763
• But it took Steptoe more than 9 months to make arrangements to come back to
work, and then at least a week more passed before he actually came back. In the
meantime, 7 months had passed between his stopping work for the Respondent and
the critical date of July 28, when the Respondent (speaking through Alice Kinkel)
said it still expected him to come back. Although Alice Kinkel testified that he
called her a "number of times," before coming back to work, at no time did she say
whether these calls were received from Steptoe before July 28, a matter of obvious
significance. Furthermore, I cannot understand why, according to the possible impli-
cations of Alice Kinkel's testimony, it was Steptoe who kept alive for these 7 months
the prospect of his coming back to work for the Respondent, rather than the Respond-
ent who' sought out Steptoe. For, it will be recalled that, according to Catherine
Kinkel, from the middle of June the Respondent had been trying to secure a replace-
ment for Wilson Lodge whose poor pressing was threatening the loss of the Rugby
contract. Yet, in her testimony, Catherine made no mention of Steptoe as a possi-
bility; nor did she explain why she apparently had not attempted to get in touch with
him and to bring him back to work. Upon this sort of evidence, despite any promise
Alice Kinkel may have originally made to Steptoe to keep his job open for him,
I cannot believe that after the expiration of the 7 months from December 1963 to
the critical date of July 28, 1964, there was any continuing understanding between
•Steptoe and the Respondent, or any real expectation on the part of either, that Step-
toe would return to work for the Respondent "within a reasonable time in the future."
Nor, therefore, can I believe that on July 28, 1964, Steptoe had any such "present
interest in the terms and conditions of employment" as would have entitled him to
participate in the selection or rejection of a bargaining representative for the employ-
ees in the appropriate bargaining unit. I conclude, contrary to the Respondent's
-contention and in agreement with the General Counsel and the Union, that Steptoe
should not be counted as an employee in the appropriate bargaining unit as of
July 28, 1964.
3. Rose Kuchar: Rose Kuchar also worked for the Respondent in the Union City
plant until December 4, 1963, and then later in the New Shrewsbury plant after the
strike began, from September 12, 1964, until the hearing in this case in December
1964. Alice Kinkel testified that Kuchar told her in December 1963, she "intended
to move down here"; that in March, Kuchar telephoned and said she had built a
house and had moved down near New Shrewsbury "but was not feeling well enough"
to return to work; that Alice Kinkel told Kuchar to "let us know" when she was
ready to come back to work; and that in September, Kuchar called, said she was
ready, and did return to work on September 12
Here was another case in which a Union City employee was indefinite as to when
she might resume her work for the Respondent, made only one contact with the
Respondent 3 months before July 28, and actually returned to work only 9 months
after she had stopped work in December 1963, and 11/2 months after the critical date
of July 12, 1964. I conclude, contrary to the Respondent's contention, that on
July 28, Rose Kuchar had no reasonable expectation of returning to work in the
reasonable future and that therefore she should not be counted in the appropriate
bargaining unit on that date.
4. Irma Scott: Irma Scott worked for the Respondent in New Shrewsbury and
-only for 32 hours in the week ending February 29, 1964. She returned to work for
the Respondent on September 25, 1964, but the Respondent claims, as in all these
cases, that she was on leave on July 28. Alice Kinkel testified that: Scott was an
alcoholic who told her in February that she was not capable of working full time;
that she (Miss Kinkel) does not remember whether Scott asked for leave but "thinks"
she did; she nevertheless told Scott to check with the Respondent later on when she
(Scott) had overcome her difficulty; although Scott called Alice Kinkel in March and
asked her to come back to work, the other women employees said Scott was not
ready to return and Alice Kinkel therefore told Scott to try later; and she herself
-called Scott in August and arranged for her return to work on September 5.
Contrary to the Respondent's contention, I do not find that on July 28, Scott had
any reasonable expectation of returning to work at any time in the reasonable future,
and therefore I do not regard her as an "employee on leave" nor count her in the
appropriate bargaining unit.
5. Lillian Landry Landry was one of two women employees concerning whom
there is a dispute as to whether the Respondent had terminated their employment or
whether the employees were on leave on July 28. Landry was employed by the
Respondent for the weeks ending February 22 to May 23, 1964, inclusive. On or
about the latter date, Landry was hospitalized for an operation and, although she
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collected disability benefits from a State fund under New Jersey law,is she never
returned to work for the Respondent.
Alice Kinkel testified that Landry asked her for sick leave and Miss Kinkel said
it was "all right with us"; that, upon later receipt of a notice from the State Depart-
ment of Labor with respect to Landry's claim for disability benefits, Miss Kinkel
telephoned Landry and asked her when she was returning to work; that Landry said
she needed her job and would return; and that Miss Kinkel finally called Landry
again sometime in August about coming back but Landry then said she was afraid
to cross the picket line.
But Landry testified that, on leaving the hospital after a day's stay, she heard from
other employees she had been laid off; that she asked Alice Kinkel about this in a
telephone call and that Miss Kinkel said that "being I was ill, they needed someone
to replace me"; that she went back to the plant a week later to get her pay and to
have her disability claims filled out, and asked Alice at that time why she had been
laid off; that Miss Kinkel merely said, "It was a little misunderstanding," but said
nothing about her coming back to work; that, in August when her disability pay-
ments ceased and she "signed up for unemployment," she received several telephone
calls from Alice Kinkel in one of which Miss Kinkel asked her to return to work
and she agreed to do so after the strike; that in another one of the telephone calls,
Alice Kinkel said Landry should fill out a form she would get from the Board, with
the statement that "I had been laid off being that I was sick."
From my examination of the provisions of the New Jersey Temporary Disability
Benefits Law,19 it appears that Landry's application for, and receipt of, benefits under
that statute raise no implication that she considered herself as still being an employee
of the Respondent. Moreover, I credit Landry's testimony, rather than that of Alice
Kinkel, that she had in fact been laid off and replaced by the Respondent in May,
although in August Miss Kinkel asked her to tell the Board, if she were asked, that
"I had been laid off being that I was sick." I conclude, therefore, in accordance with
the General Counsel's and the Union's contention, that Landry was not an employee
of the Respondent on July 28, 1964, and therefore is not to be counted in the appro-
priate bargaining unit on that date.
6. Ada Horn: Ada Horn was employed by the Respondent in New Shrewsbury,
with a month's interval, from February 22 to about July 11, 1964, and returned to
work again on September 26. On or about July 11, the last day she worked before
the strike, Horn had been upset because she had not been told of a telephone call
which her daughter had made to her at the plant. The dispute is as to whether she
complained about this and was discharged, or whether she merely asked for a leave
of absence for the rest of the summer.
Alice Kinkel testified that Horn had telephoned from her home the next day to
complain about not receiving her daughter's telephone call and had also said she and
her husband had decided it would be best if she took off from work during the sum-
mer and stayed home with their children; and that the arrangement for her to return
to work had been made when Miss Kinkel called Horn in August and was told by
Horn that her children would go back to school on September 10.
Horn, however, denied that she had told Alice Kinkel in July that she was going
to take off from work to be with her children during the summer. She testified that
she had telephoned Alice Kinkel and complained about the failure of the Respondent
to call her to receive her daughter's telephone call; that Alice Kinkel had telephoned
her the next day to come in and pick up her pay and said that Horn "needn't come
back to work, that [her] position had been filled." Horn further testified that Alice
Kinkel called her in August or September to get her to come back to work and that,
after a week taken by Horn to decide, Alice again called her, and when Horn agreed
to return, Alice told her she "would be hearing from the Labor Board and that [she]
should tell them that [she] had been laid off temporarily for the summer."
Upon consideration of this testimony, I credit Horn's testimony and find that Horn
was discharged on or about July 11, that she was not an employee of the Respondent
on July 28, and that when Alice Kinkel asked her in August to return to work, Alice
Kinkel also told her to tell the Board's agent she had been "temporarily laid off."
1B Apparently, the Temporary Disability Benefits Law (NJ. Rev Stat., 1937, as amended,
43:21-5, et seq.). Counsel did not give the citation of the statute to me either at the
hearing or in their briefs nor is it given in an official form of the State of New Jersey
which was admitted in evidence.
19 See the preceding footnote.
JOHN KINKEL & SON 765
- Accordingly, in agreement with the General Counsel 's and the Union's contention
and contrary to that of the Respondent , I conclude that Ada Horn was not an
employee in the appropriate unit on July 28, 1964.
7. Rudene Barazzo: Barazzo was employed by the Respondent at the New Shrews-
bury plant from about April 11 to June 20, 1964, with two intervals of a month each.
She had not worked for the Respondent since June 20 and apparently there has been
no contact between her and the Respondent. According to Alice Kinkel, Barazzo
asked her on June 20 "if she could go on leave of absence because she had a very
seriously ill husband, and she would have to stay home and take care of him"; that
Alice Kinkel said "that would be all right with me" although she also specifically
told Barazzo she would be taken back only if the Respondent had work for her; and
that Barazzo said she would let Miss Kinkel know as soon as she was able to return
to work.
Here was a case in which the employee, though given an indefinite "leave of
absence" was plainly told she would be taken back only if there were work for her,
and although a month passed before July 28 and 6 months passed before the hearing
in the present case, the Respondent has still not heard from her. I conclude, that,
as must have been evident even on July 28, neither she nor the Respondent had any
reasonable expectation that she would return to work in the near future. Accord-
ingly, I agree with the General Counsel and the Union that Rudene Barazzo was not
an employee in the appropriate bargaining unit on July 28.
8. Esther Longhini• Longhini was employed by the Respondent at New Shrews-
bury from approximately February 22 until June 20, 1964. Alice Kinkel testified
that Longhini "asked to take a leave of absence because she was taking care of her
dying brother ... I said it would be all right with me if she took a leave of absence
at this time." When asked specifically Miss Kinkel testified that she had not given
Longhini an absolute assurance of being able to come back.
This case is on all fours with that of Barazzo which I have just discussed. For
the same reasons, I agree with the General Counsel and the Union that Esther
Longhini was not an employee of the Respondent in the appropriate bargaining unit
on July 28, 1964.
9. Chitstne Ilarraza- Ilarraza was employed by the Respondent in New Shrews-
bury between approximately March 14 and July 11, 1964, with one intervening month
off, and then again after the strike from about September 12 to October 31. Ilarraza's
last conversation with the Respondent when she stopped working was with Catherine
Kinkel, who did not, however, testity about the matter. Ilarraza testified that she
telephoned Catherine Kinkel and told her "I was unable to work on account of my
mother that was very sick and [my] children too"; that Catherine said "Maybe in the
future, if [Ilarraza's mother should] feel better, I could return"; that Catherine called
Ilarraza in August to get her to return to work, and told Ilarraza that, in answering
any communication from the Board, she should say she had not been "fired" but that
her absence was "on account of illness and ... a vacation."
I credit Ilarraza's testimony. On the basis thereof, I conclude that, as in the imme-
diately preceding two cases I have discussed, Ilarraza's absence from work between
July 11 and July 28, the critical date in this case, was expected to be indefinite in
duration. I note also that according to Ilarraza's testimony (the only evidence I
have before me), Catherine Kinkel told Ilarraza merely that "maybe" she could
return if and when her mother felt better. I conclude that on July 28, Ilarraza did
not have such a reasonable expectation of returning to work at any time in the rea-
sonable future, that she should be considered as an employee on leave within the
appropriate bargaining unit. I shall therefore not count her in the appropriate bar-
gaining unit as of July 28.
10. Moto Brown: Brown worked for the Respondent at the New Shrewsbury plant
for the week ending April 11, 1964, and then for the 3 weeks ending June 6, June 13,
and June 20. Since then she has not worked for the Respondent and there have
been no contacts between her and the Respondent. Alice Kinkel testified that on
April 11, Brown asked for time off because she was not feeling well; that Miss Kinkel
said this was "agreeable with me [and that Brown] should let me know when she
was able to come in again"; and that, after first notifying Miss Kinkel, Brown did
come back to work during the week ending June 6. Alice Kinkel further testified
that after working 3 weeks, Brown again left on June 20, saying "she wouldn't be
able to work because her illness was serious", and Alice Kinkel told her she should
take off as much time as she needed.
Here again was still another case in which the employee took off from work indefi-
nitely a month or so before July 28. Moreover, from her last statement to Miss
Kinkel, it was even more questionable at the time than in the other cases I have
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussed, whether she would ever return to work, and since then the Respondent
had not heard from her. Certainly the situation would not support a finding that
there was any reasonable expectation on the part of the Respondent on July 28 that
she would return to work at any time in the reasonable future. Contrary to the
Respondent's contention, I do not count Moto Brown in the appropriate bargaining
unit on July 28, 1964.
11. Biruta Ciguizi: Ciguizi worked for the Respondent at New Shrewsbury for the
5 weeks preceding May 1, 1964, and again for the 3 weeks preceding June 20, 1964.
She has not worked for the Respondent since that time nor, so far as the record
shows, has there been any contact between her and the Respondent. Concerning her
absence from work since June 20, Alice Kinkel testified that Ciguizi "was sick and
she asked if she could take off on sick leave ... I said yes that would be all right";
and that Ciguizi "said she would let me know when she would be able to return to
work."
In this case, the evidence does not provide even a clue as to whether Ciguizi's ill-
ness was serious nor theref+ re whether it was likely that Ciguizi would ever return
to work. I see no reason si own by the record for any expectation on the Respond-
ent's part on July 28 that Ciguizi would return to work within any time in the rea-
sonable future or, for that matter, that she would return at all. In agreement with
the General Counsel and the Union, I find that Biruta Ciguizi was not an employee
in the appropriate bargaining unit on July 28.
12. Jennie Lorenson• Lorenson worked for the Respondent in New Shrewsbury
for the 7 weeks preceding July 11, 1964. Both Alice Kinkel and Lorenson agreed in
their testimony that Lorenson was sick and asked for, and received, time off, and that
when she called up to come back to work in September while the strike was continu-
ing, she was told that the Respondent could not use her In greater detail than
Lorenson, Alice Kinkel testified that Lorenson "asked to go on sick leave because she
was getting severe headaches. She could not stand the heat of summer"; that Miss
Kinkel said "it would be all right with us" and Lorenson then said that "she would let
us know when she would return to work"; and that Lorenson "called sometime in
September and said she was ready to come back to work ... [but] I told her at this
time we are on a layoff and we wouldn't be able to use her."
This case, in my opinion, differs from the cases we have been discussing in several
significant respects. Here, unlike the other cases, the leave sought and apparently
granted, was to be for a comparatively short and reasonably fixed duration (i.e., until
the end of the summer) and the critical date, July 28, was well within the contem-
plated leave period. The grant of such a short leave might well have implied a
commitment by the Respondent to take the employee back when it expired. And, for
this reason, I believe and find that on July 28, both the Respondent and the employee
did have a reasonable expectation that she would return to work in the bargaining unit
within a short time. Accordingly, I conclude that, on July 28, Jennie Lorenson was
such an employee on leave as to have a "present interest" in the terms and conditions
of employment in the bargaining unit and is therefore to be counted as a member of
the unit.
13. Ingetraut Swetits• Swetits worked for the Respondent in New Shrewsbury for
the 18 weeks preceding July 4, 1964. Her testimony and that of Alice Kinkel con-
cerning her leave which began on July 4 were essentially the same. Accordingly,
using the language of Miss Kinkel's testimony I find that Swetits "asked if she could
go on leave of absence for the summer to take care of her children because her
mother, who was living with her, was going to Canada for the summer.... She said
she would like to come back as soon as her mother came back to live with her again";
and that Alice Kinkel agreed to the leave on these terms.
Like that of Jennie Lorenson's leave, Swetits' leave was a leave granted for a short
and reasonably fixed duration and the critical date, July 28, was well within the con-
templated leave period. For the same reasons just given in Jennie Lorenson's case,
I,conclude that on July 28 Ingetraut Swetits was an employee on leave and is to be
counted in the appropriate bargaining unit.
14. Carol Hampton: Carol Hampton was an employee newly hired by the
Respondent on July 27, the day before the critical date of July 28. Although she had
been erroneously listed by the Respondent as an employee on leave within the bar-
gaining unit, I conclude that she was actually an active employee on July 28 and as
such is to be included in the appropriate bargaining unit.
This ends my discussion and findings concerning the persons about whose exclusion
or inclusion in the bargaining unit there is dispute. In computing the number of
employees in the unit on July 28, I have, of course, included those in the disputed
categories who I believe the evidence shows should be included, as well as the greater
number of undisputed active employees whose names appeared on the list submitted
JOHN KINKEL & SON 767
by the Repsondent to the Regional Director on August 17, 1964. As a result of this
consideration, lest there be any doubt, I have set forth in Appendix A the names of
all of the persons whom I have found to have been employees in the appropriate bar-
gaining unit as of July 28 I conclude, as a count of these names will show, that the
appropriate bargaining unit as of July 28 consisted of 60 employees.
3. The Union's majority
On the offer of the General Counsel at the hearing, I received in evidence 34 signed
cards clearly expressing a grant of exclusive bargaining authority to the Union by
those of the employees who signed them.''-'o Counsel for the Respondent stipulated
that he would not challenge the signature of an employee on 1 of these 34 cards 21
and the authenticity of the signatures on each of the remaining cards was established
either by the testimony of the subscriber or by that of another witness who testified
that the signature was affixed in his presence.
Three of the 34 cards in evidence, however, cannot be counted as effective
employee-authorizations as of July 28, 1964. For the cards of Ada Horn and
Sieglinde Diaz bear the subsequent date of August 31, 1964, and I have already found
that both Horn and Lena Mae Hughes (the latter having signed the third card with
which I am concerned at the moment) were no longer employees in the appropriate
bargaining unit on July 28, 1964.
But the remaining 31 cards in evidence are clearly cards signed by employees in the
appropriate bargaining unit as of July 28, 1964. Moreover, the fact that each of them
was signed and delivered to the Union on or before July 28 is established not only by
the testimony of the subscriber or other authenticating witness (with or without con-
firmation by a date appearing on the card) but also, in each instance by a stamped
date of July 28 on the card showing that it was received by the Board's Regional
Office when the Union filed its charge that day.
The Respondent, however, attacks the validity of 2 of the 31 cards on the ground
that the signatures of the particular employees (Betty Smith and Henrietta Marshall)
were procured by misrepresentation. The Union and the General Counsel deny this.
While there is no dispute as to the facts in Smith's case, the evidence is in conflict with
respect to the circumstances surrounding Marshall's signing her card.
It appears from Smith's uncontradicted testimony that, having been hired by the
Respondent only on July 2, she was induced to sign her union bargaining authoriza-
tion card on July 17 by Organizer Fred Scotti who told her "that they were getting a
union in the Kinkel plant and that everybody in there had signed and that he wanted
me to sign a card, too, that I had to sign a card." Contrary to the Respondent's con-
tention, the Board has held that such a representation, even though untrue, does not
vitiate an employee's bargaining authorization 22 Accordingly, I find and conclude
that the union authorization card signed by Betty Smith is an effective bargaining
authorization and should be counted in determining the Union's majority.
Henrietta Marshall also admittedly signed a union bargaining authorization card
which is in evidence. But she claims that she was told by Organizer Walter DeYoung
during a visit he made to her home with Organizer Fred Scotti on the evening of
July 20, that she was merely signing some sort of paper supporting an application she
had made to the Union in May for vacation payments to which she was entitled as a
former member of the Union.
Marshall is foreign-born and her native language is German. But she has lived
in this country for 8 years and it was apparent during her testimony that she is able to
speak and understand English quite well. Although she testified that she had difficulty
in reading because of poor eyesight and did not wear glasses , she was able to read
aloud at the hearing the essential printed language of the bargaining authorization
20 The purported signature of employee Mary Naomi Emmons on a 35th card which the
Union had also produced , was not, in my opinion , properly authenticated and I therefore
rejected the General Counsel's offer of the card.
21The stipulation was reached after the employee in question had denied signing the
card but then ran into apparent difficulties in the course of her cross -examination.
z0 Harry Epstein, et at., d/b/a Top Mode Manufacturing Co., 97 NLRB 1273, 1276,
enfd. 203 F . 2d 482 (C.A. 3) ; E. H. Sargent and Co., a corporation , 99 NLRB 1318;
Harold W. Koehler, at at., d/b/a Koehler's Wholesale Restaurant Supply, 139 NLRB 945,
955. In its brief, the Respondent cites and relies on the contrary holding of the Court
of Appeals for the First Circuit in N.L.R.B. V. Rohtstein & Co., 266 F. 2d 407, setting
aside 120 NLRB 1556. But with all due respect to the court, I am constrained to observe
what appears to me to be the Board's continued adherence to its earlier rule (See
Koehler's Wholesale Restaurant Supply, supra )
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she had signed. Notwithstanding her obvious ability to understand and express her-
self, the details of her testimony are somewhat confusing and it is difficult to sum-
marize them.
In material substance, Marshall testified that, after introducing himself and Scotti
as representatives of the Union, DeYoung said they had come to see her about her
vacation payments; that he told her that they would pay her delinquent union dues
for her, that she was still a union member, and would be the Union's "Chairlady in
Kinkel if they take over" but that it was necessary for her "to lie a little" in a letter
to the union office in New York in order to get her vacation check; that he asked her
to sign a letter which, in return for her help in organizing the Respondent's employees,
the would mail to New York for her; that, without ever referring to a union authoriza-
tion card or asking her at any time during the conversation to sign such a card, he
handed her "an envelope and inside was a little black print" either on the back of the
envelope or on an enclosed card; that he asked her to sign and she did sign, even
though she did not read the print because her eyesight was poor and she trusted
DeYoung; and that, after she signed the "paper," never suspecting she might have
signed a union bargaining authorization, DeYoung asked her to help the Union at the
Kinkel plant in getting a list of the employees, and that she agreed to do so.
DeYoung, however, testified that their conversation began with his asking Marshall
to the union meeting which was to be held on July 22; that he also asked her to sign
a union authorization card, explaining it was necessary even though (as she told him)
she was already a union member; and that Marshall then signed the card, said she
would try to come to the meeting, and, in response to DeYoung's request, said she
would get a list of the names and addresses of the employees. According to DeYoung,
before he left Marshall, "I talked to her about her experience in the Union. She had
some complaints which we discussed. They were about normal shop complaints of
any worker in any shops ... I don't recall whether she asked about a vacation check
specifically, but it could be. I couldn't honestly say she did or didn't."
Upon considering this testimony, I credit the testimony of DeYoung rather than
that of Marshall. In the absence of some explanation not apparent from the record,
it is incredible that a union representative, for the sake of getting a signature to a
single union authorization card should adopt such an elaborate, fraudulent scheme
as that described by Marshall, with the obvious risk of being caught and completely
discredited in the eyes of the employees, rather than to take the straight-forward course
of asking the employee for the signature on the authorization, as DeYoung said he
did. Accordingly, I find and conclude that Marshall was asked by DeYoung to sign
a union bargaining authorization, that she did sign the card, which is in evidence, and
that she knew what she was signing. Contrary to the Respondent's contention, there
was no fraud in the procurement of her signature and I count her card as a valid
bargaining authorization.
In sum, upon my consideration of the evidence and the positions of the parties, 1
have concluded that on July 28, 1964, the Union possessed the valid bargaining
authorizations of 31 of the 60 employees in the appropriate bargaining unit (see
Appendix A), and thus had been designated and selected by the majority as their
representative for the purposes of collective bargaining within the meaning of Section
9(a) of the Act.
4. Conclusions as to the refusal to bargain
There is no dispute about the Union's bargaining request of July 28 and the
Respondent's refusal to bargain on and since July 30 when the parties met in an
attempt to settle the Union's status. At that meeting, it will be recalled, the Union
offered to produce its authorization cards so that their signatures might be checked
against those of the employees on the income tax withholding forms in the Respond-
ent's possession, but the Respondent refused to be bound by such a check even if the
card signatures appeared to be authentic since, it asserted, it had information that
some of the signatures on the cards had been obtained by fraud or duress. The
Respondent, in turn, suggested a Board election but the Union rejected this proposal
stating, in effect, that the questions raised by the Respondent with respect to the
validity of the cards would have to be decided in the unfair labor practice proceeding
before the Board which the Union had already started by filing 8(a)(3) and (5)
charges. And, as a matter of fact, the Respondent's subsequent petition to the Board
for an investigation and certification of representatives was dismissed by the Regional
Director in accordance with the Board's settled practice upon the very grounds the
Union had given'to the Respondent.
In the present proceeding, in addition to its challenge of the Union's majority
(which I have already considered) the Respondent in effect asserts as its defense to
the refusal to bargain allegations of the complaint, a good-faith doubt on its part as to
JOHN KINKEL & SON 769
whether the Union had been duly selected or designated as exclusive bargaining
representative by a majority of the employees in the appropriate bargaining unit. As
its counsel states its position in the brief submitted to me:
. Notwithstanding the refusal on the part of the Union to demonstrate its
majority status the Company , in furtherance of its good -faith efforts , suggested
a consent election be held, which suggestion , however, was summarily rejected.
In addition to all of these good-faith efforts on the part of respondent to deter-
mine the validity of the Union 's alleged position the respondent also filed a peti-
tion with the Board for an election , but also to no avail.
In the light of the foregoing , therefore , it is difficult to comprehend what
further efforts might be reasonably expected of respondent in dealing with the
demands made upon it by the Union herein.
We submit that the Company acted in utmost good faith in its refusal to recog-
nize the Union without clear proof of its authority to represent the Company's
employees.
But the facts in this case do not permit the Respondent to lay upon the Union the
blame for failing to prove its majority either by a card check or by an election under
Board auspices . For it was the Respondent who blocked the card check by its
challenge even of those signatures on the cards which should appear to be authentic.
And it was also the Respondent who, by illegal conduct obviously designed to prevent
the Union 's successfully organizing its employees, had already made it possible for
the Board to conduct a fair representation election free from the continuing effect of
the Respondent 's existing unfair labor practices.
Thus, as I have found , the evidence shows that from the beginning of the Union's
organizational drive, which could have as its only objective the Union's eventual
recognition as bargaining agent by the Respondent , the Respondent by surveillance of
the Union 's meetings and its interrogation of employees demonstrated its antagonism
to their union activity and its objective . Then , when surveillance of the union meet-
ing of July 22 showed that the union drive among the employees had nevertheless
gathered strength , the Respondent on the following day, July 23 , discharged one of the
apparent union leaders, Wilson Lodge, whom it had suspected of being involved for
several months , as well as another union member , Eugene Savage , whose absence
from work the Respondent apparently believed was in sympathy with a walkout of
other employees that morning because of Lodge's discharge . Thus, just before the
Union had asked the Respondent to bargain and the Respondent had refused, the
Respondent , by surveillance , interrogation and discharge of two employees, had
taken strong measures in an attempt to curb the organization of its employees and
to avoid the necessity for bargaining with the Union as their exclusive bargaining
representative ( all of which I have found to be unfair labor practices).
In this setting of its own obstructive unfair labor practices , the Respondent, and
not the Union , must accept responsibility for the obvious futility of the Board's
attempting , and either of the parties ' asking it to attempt , to conduct the fair repre-
sentation election contemplated by Section 9(c) of the Act . In short, by making
such an election impossible and by interposing broad objections to the validity of
any or all of the signatures on the Union 's cards without any specific detail and thus
also making a card check impossible , the Respondent forced the Union to a hearing
in the present unfair labor practice proceeding as the only reasonable and fair way of
establishing its majority . Accordingly , the Respondent 's claim of a good-faith doubt
of the Union 's majority , even assuming its existence , does not justify its refusal to
bargain nor therefore afford it a defense when it later appears from the evidence in
the unfair labor practice proceeding that the Union had in fact been duly designated
as representative by a majority of the employees in the appropiate unit on the critical
date of the Respondent 's refusal to bargain . For the Respondent , by its precedent
unfair labor practices , had placed itself and the Union in a position in which, under
the provisions of the Act , both of them would have no course open to them but to
accept such determinations of the question of majority and the Union 's status as
exclusive bargaining representative as might thereafter be made by the Board in an
unfair labor practice proceeding . As Judge Sobeloff of the Court of Appeals for the
Fourth Circuit held in a case presenting this sort of situation • 23
The Company defends on the ground that its refusal to bargain was predicated
on a "good-faith doubt ," even if mistaken , as to the Union 's majority status and
that, therefore , the Board erred in finding a Company violation of Section
8(a) (5) and in ordering bargaining with the Union . The argument advanced is
23 Northern Virginia Steel Corp . v. N.L.R B , 300 P. 2d 108, 175, enfg. 132 NLRB 714.
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that because the company acted in "good faith" the Board should not compel
it to bargain with the Union. The Board and Examiner agreed in finding that
"good faith" was lacking
It is unnecessary, however, to linger over the bona fides of the company's con-
duct, for the Boaid's order was proper whether or not the company acted in
good faith....
But if the Board, in reviewing the record and my present Decision, should adopt
the view that the good or bad faith of the Respondent is material, the Respondent
has still not made out a defense For the facts, as I have found them upon the evi-
dence, do not support the Respondent's protestations of good faith in challenging
the Union's majority. As I have indicated, the Respondent's unfair labor practices
in spying upon the union meetings attended by the employees, in interrogating
employees concerning their union activity, and in discharging employees Lodge and
Savage on July 23 when it appeared that the Union might be successful in its organiz-
ing drive, were obviously directed toward the defeat of the union movement and an
avoidance of bargaining with the Union. Even at and after its meeting with the
Union on July 30, the Respondent's profession of a good-faith doubt concerning the
Union's possible majority as the actual reason for its refusal to bargain, is at variance
with its conduct. Thus, having discouraged the Union's reliance upon a Board
election by its antecedent unfair labor practices, the Respondent rendered ineffective
the Union's attempt to establish its majority by a card count at their meeting on
July 30, by claiming it had information that some of the signatures on the cards had
been secured by fraud or duress without then being specific as to the number and
identities of the employees involved and without later being able at the hearing in
the present case to produce more than two employee-witnesses, neither of whose
stories presented a substantial or credible basis for the Respondent's position. Then,
in its communications to the Regional Director and in the development of its posi-
tion in the present case, it attempted to swell the size of the appropriate unit and
thus to make impossible the Union's demonstration of a majority, by insisting that
the bargaining unit included 17 persons as employees "on leave," most of whom
(according to its original list) had not worked for the Respondent for months and
a considerable number of whom had never worked at the Respondent's New Shrews-
bury plant; by dropping five of these names off its "leave" list during the present
unfair labor practice hearing when it appeared that its position as to these five was
obviously untenable; and, finally, by pressing its claim in the present proceeding as
to the "leave" status of the remaining 12 and another person whose name it had
added to its list during the hearing although, at my earlier detailed consideration of
these 13 cases indicates, the evidence as to only two of these persons supports the
Respondent's "leave" contention, the evidence as to another 10 furnishes such a
flimsy and obviously pretextual basis for the Respondent's contention as to compel
the conclusion that the contention could never have been made in good faith, and
the evidence as to the remaining person in this category (Anthony D'Amato) is so
suspect that the Respondent did not even mention him in its brief.
Upon the foregoing considerations I have concluded that, in view of the Respond-
ent's strong antecedent unfair labor practices discouraging continued employee-
support of the Union, it is immaterial whether the Respondent actually entertained
a good-faith doubt as to the Union's majority when it refused to bargain, but that, if
the Board should be of different opinion, the Respondent's refusal to bargain with
the Union on and since July 30, 1964, has been motivated, not by any such doubt,
but by its determination to avoid bargaining with the Union as the exclusive bargain-
ing representative of its employees. Upon both basis, therefore, I reject the Respond-
ent's defense of "good faith."
Since I have found that the Respondent has refused without justification to bar-
gain with the Union on and since July 30, 1964, at which time the Union was the
duly designated and selected bargaining representative of a majority of its employees
in an appropriate bargaining unit and therefore the exclusive bargaining representa-
tive of all the employees in that unit within the meaning of Section 8(a) and (b) of
the Act, I conclude and find, in agreement with the allegations of the complaint and
the contentions of the General Counsel and the Union, that the Respondent has
thereby committed unfair labor practices within the meaning of Section 8(a) (5) and
(1) of the Act.
E. The Union's request for the reinstatement of strikers and the Respondent's
reinstatement of some, but not all of them on September 21, 1964
During the middle of the day of September 9, Sol Kapelsohn, the Union's attor-
ney, accompanied by Organizer DeYoung and some of the striking employees, visited
JOHN KINKEL & SON 771
the Respondent's plant and delivered a list of 38 names 24 to partner William Kinkel
with the statement that each of the persons on the list was ready and willing to return
to work the next morning and that, on their behalf, Kapelsohn was applying for
their individual reinstatement "with no strings attached." William Kinkel said he
would consider the list but would have to consult his attorney.
The list given to Mr. Kinkel included Wilson Lodge and Eugene Savage who I
have found had been discriminatorily discharged. Of the 36 additional names, it
would appear from the various exhibits based on the Respondent's records that only
20 were the names of persons whose employment by the Respondent had been inter-
rupted by the beginning of the strike on July 23. And these are the 20 persons
whom the complaint alleges were refused reinstatement on September 9.
Later in the same day that the Union had made its request for the reinstatement
of the strikers, Nathan Hirsch of Rugby telephoned William Kinkel that Rugby had
terminated its contract with the Respondent, that all work was to stop on Rugby's
contract immediately, and that all Rugby's materials, work-in-progress, and its
machines would be removed from Mr. Kinkel's plant within 3 or 4 weeks. As a
result, no further work has been done by the Respondent for Rugby, and, as Hirsch
had told Mr. Kinkel, all of Rugby's material and machinery were removed from
the Respondent's plant within the next 3 or 4 weeks.
By letter mailed on September 14, the Respondent notified 9 of the persons whom
the complaint alleges had been refused reinstatement on September 9,25 that they
might return to work for the Respondent on September 21, thus omitting recall of
the remaining 11 of the employees named in the complaint. On September 15, the
Respondent notified the Union of its action. And on September 21, although the
Union's attorney appeared at the plant with the strikers and pressed his full, original
demand, only the nine strikers who had received recall letters were permitted to
return to their jobs. In net result, the Respondent had refused to recall, and has
since omitted recalling striker John Alston and the 10 other strikers whose names
are set forth in Appendix B and on whose behalf the Union had made an application
for reinstatement on September 9. As to John Alston, counsel stipulated at the
hearing that, for reasons they did not disclose, the Board is not to issue a backpay
or reinstatement order. But the General Counsel and the Union do press for find-
ings that the 10 employees named in Appendix B were discriminatorily refused
reinstatement , and also for a correspondingly broad backpay and reinstatement order.
In addition, they contend, upon the basis of evidence which will be considered in
section III-F below, that Ramon Hernandez, one of the striking employees recalled
to work on September 21 was not fully reinstated.
The General Counsel and the Union urge a finding that the 10 striking employees
listed in Appendix B were improperly refused reinstatement on September 9 and that
backpay should be awarded them from that date. But I do not agree. An employer
in the situation of the Respondent cannot be reasonably required to take back even
unfair labor practice strikers instanter upon application, but must be permitted time
to plan work for their return. Even though the Respondent was informed only later
in the day of the cancellation of the Rugby contract, it would appear that it was
reasonable for it to take the time to consult its attorney and its own work require-
ments, especially since it apears in the present case that 16 of the 38 names on the
Union's list were ex-employees and not strikers entitled to reinstatement. Then,
when Rugby's contract was canceled later in the day, the Respondent's need for
considering its course was emphasized. I therefore conclude it was not unreason-
able for the Respondent to take until September 21 before it reinstated any of the
strikers and that if the striking employees on Appendix B were improperly refused
reinstatement, the improper refusal may be dated as of September 21, 1964, at the
earliest.
But even then the question arises as to whether there was work on September 21
for the strikers named in Appendix B. If not, the most that could be required in
their cases is that they be placed upon a preferential hiring list as unfair labor prac-
tice strikers. The General Counsel and the Union, of course, make no contention
ss The list numbered the names from 1 to 40 but there were actually only 38 identifiable
names on the list since there was one duplication of name and , in the case of one name,
only a first name was given.
mActually , the Respondent sent this notice to 11 of the employees on the Union 's list.
From the evidence in the record, the additional 2 persons recalled by this letter, like 14
others on the Respondent's list, were apparently not employed by the Respondent at the
time the strike began.
221-374 6-vol . 157-50
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there was any discrimination in taking back the nine strikers whom it recalled
on September 21 rather than those listed in Appendix B. The record does show that
there were nine new hires during the strike who were still working for the Respondent
on September 21.26 But three of them were pressers (Aggie Dixon, Gene Arnold,
and Donald Steptoe ) making a total of four pressers with the recall of striker Ramon
Hernandez on September 21, and since none of the strikers on Appendix B were
pressers , it is obvious that none of the newly hired pressers had replaced them.
Another new employee was a Bartack operator ( Shirley Dixon ) and, so far as the
record shows, none of the strikers on Appendix B was a Bartack operator Thus it
would appear that only five of the nine persons hired by the Respondent during the
strike held jobs on September 21 to which the corresponding number of five unfair
labor practice strikers were entitled to return . But which five strikers9 And were
there other replacements who should have been dislodged on September 21 to make
room for the remaining persons listed on Appendix B9 On these questions, the
present record sheds no light . However, I believe it proper to find at the present
stage of the proceeding in the absence of a contrary showing by the Respondent, and
I accordingly do find, that as to at least five of the persons named in Appendix B the
Respondent did commit an unfair labor practice by refusing to reinstate them on
September 21. The number and identity of the unfair labor practice strikers affected
may, and should properly, be determined by the compliance stage of the present case.
F. The recall and discharge of Ramon Hernandez within the week
beginning September 21, 1964
Ramon Hernandez , a presser, was one of the unfair labor practice strikers who
returned to work for the Respondent on September 21 pursuant to the Union 's rein-
statement request. The General Counsel and the Union contend that he was not
reinstated to his former position and that the Respondent 's failure to reinstate him
was an unfair labor practice within the meaning of Section 8 (a)(3) of the Act. In
any event , Hernandez , who had left a job as presser for another employer during
the strike , worked for the Respondent only for a week when the Respondent dis-
charged him on Friday , September 25.
Hernandez , as I have earlier found, was admittedly a competent presser, who had
been hired by the Respondent in March 1964 at an hourly rate of $2.25 but had
been changed within 2 weeks to piece-work rates. Before the strike , he had, accord-
ing to his own testimony pressed an average of 40 dozen sweaters a day or 200
dozen sweaters a week and , according to a stipulation by counsel at the hearing,
his earnings at piece rates had averaged $ 125 a week and were never less than $104
in any one week. When he returned to work on September 21 he was immediately
told by Catherine Kinkel that he would revert to his hourly rate of $2.25 . During
the ensuing week, he pressed approximately 14 dozen sweaters on the first day and
about 25 dozen each of the remaining days of the week, for a weekly total of from
114 to 115 dozen sweaters.
It is clear from what I have just found that the Respondent did not reinstate
Hernandez to his former position inasmuch as his compensation was reduced. For
this reason , I hold that the Respondent refused to reinstate him, an unfair labor
practice striker, to his former position, and thereby committed an unfair labor prac-
tice within the meaning of Section 8 (a) (3) and ( 1) of the Act . But, in view of the
evidence , I do not agree with the General Counsel's and the Union 's contention that
there were other respects in which the Respondent failed to accord him the same
position he had enjoyed before the strike. And , because I believe that the evidence
shows that he was discharged by the Respondent at the end of the week for good
cause, I shall not recommend that he be reinstated nor awarded backpay.
Hernandez attempted to explain his sharp drop in production during the week of
September 21 and at the same time to emphasize the antiunion feeling and dis-
criminatory attitude of Catherine Kinkel who eventually discharged him. He testi-
fied that on his return to work on September 21 he was given a different pressing
machine than he had before the strike , that it was not properly adjusted to his use,
that the sweaters he was given to press were badly oversized , and that partner Cath-
erine harried him with unfriendly comments about the Union, about Organizer
DeYoung, and about his own union activities including his singing the song "How
Much Is That Doggie In The Window ?" while he walked the picket line and
Catherine Kinkel stood watching the pickets from the office window of the plant
(as he admitted he and other pickets had done during the strike ). He also testified
that during the week of September 21 he complained to Miss Kinkel about his machine
26 Catherine Dixon , Aggie Dixon , Gene Arnold, Shirley George ,, Chris tine Ilarraza, Ada
Horn, Irma Scott, Rose Kuchar, and Donald Steptoe.
JOHN KINKEL & SON 773
and the difficulty the oversizes in the sweaters were causing him, and that he worked
just as he always had , counting out the number of sweaters before he pressed them
but pressing lust as many as he could under the difficult circumstances with which
he had to contend . He denied that during the week of September 21, he had
deliberately counted out a limited number of sweaters and then pressed only that
number of sweaters each hour . He also denied having sung the "Doggie" song
during the week of September 21 when Miss Kinkel passed , or having made any
remarks or signs to which she could have taken exception . All this was developed
by him in great detail. In short, according to Hernandez , he was the victim of the
Respondent 's continuing animosity for the Union and its adherents , although he
worked as hard as he could and offered offense to no one.
The testimony of Catherine Kinkel and several of the employees presented a quite
different picture. Miss Kinkel testified that Hernandez was given a different machine
because his old machine was being used by a presser during the strike; that he did
not complain about the machine assigned to him; that his only complaints were
about his return to an hourly rate and the difficulty he was having because of the
sizes of the sweaters ; that his complaint about being put back on the hourly rate
was made when she asked him why he was not producing as he had before the strike;
that when she stood firm on the hourly rate, he told her in substance that was all
she would get ; that she noticed him counting out the sweaters before he pressed
them; that she warned him on Wednesday , September 23, that unless he picked up in
his production he would be discharged and that, in addition to making signs to the
other employees as she passed down the plant aisle, he repeatedly sang or whistled
the "Doggie" song although she reprimanded him for it . Three employees corrob-
orated Miss Kinkel on some of these points and contradicted Hernandez. Mary
Herdon, an examiner who collected the sweaters which Hernandez pressed , denied
that the sweaters were badly sized and further testified that Hernandez "had his
watch" and said he was "counting out three dozen [sweaters ] an hour, so it would
add up to 24 a day." Herdon and Aggie Dixon, a new presser, also testified that
Hernandez would whistle or sing the "Doggie" song as Miss Kinkel passed by. Dixon
and employee Hilda White testified that Hernandez would also make the sign of
a circle with his thumb and forefinger to other employees as Miss Kinkel passed
And all three of these employees testified generally as to Hernandez ' slowness in his
work, his stopping work to watch what was going on, and his numerous absences
from his machine during the day.
All of the evidence , the essence of which I have just set forth , was given in great
detail by the witnesses . Upon consideration of this detail , I credit the general story
given by Miss Kinkel and the women employees as presenting the actual, essential
situation . There is no question that there was bitterness between Miss Kinkel and
Hernandez and while I credit her denials of making any statements reflecting upon
the Union and Hernandez as one of the strikers , my finding in this respect is reached
not without some doubt . But otherwise , upon Miss Kinkel 's testimony and that of
the women employees , as well as upon a stipulation by counsel concerning his pro-
duction figures before and since the strike, I find that, in the week of September 21,
Hernandez did deliberately and drastically cut down on his production in spite of
Miss Kinkel speaking to him and then warning him of discharge , and that in his
general attitude toward her in the presence of other employees , he was insubordinate
and disrespectful . Accordingly , I conclude that he was discharged on September 25
as A he Respondent asserts, for insufficient production and insubordination, and
therefore for good cause . That he had not been fully reinstated at his former piece
work rate on September 21, in my opinion , no justification for his conduct and I
will not recommend reinstatement or backpay in his case.
G. The alleged discharge of Julian Wilson on October 2, 1964
Julian Wilson was hired by the Respondent as a "steamer " on February 17, 1964,
joined the Union , participated in the strike , and was among the. employees called
back to work on September 21 by the Respondent at the Union's request . He worked
2 weeks, i e ., through Friday , October 2 , and thereafter did not return to work.
The complaint alleges that he was discriminatorily discharged on October 2 on the
theory ( according to the General Counsel's brief ) that the Respondent had made
things so difficult for him that his cessation of work was not voluntary and that he
was therefore constructively discharged.
The incidents upon which the General Counsel bases his theory are few. Accord-
ing to Wilson, in one of these incidents within a few days after his return to work,
he and a numf er of employees witnessed a mishap in which material had been
snagged in a machine by William Parker, another striker who had also been recalled
on September 21, and while they stood around and watched, Catherine Kinkel,
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
becoming irritated, uttered an obscenity to Wilson. On another occasion , according
to Wilson, Miss Kinkel told employees who were watching the removal of machinery
from the plant to go back to work, and then told Wilson, particularly, that "if I didn't
keep my eyes on my work that IT be back out on the picket line with Walter
DeYoung." And on another occasion, Friday, September 25, according to Wilson,
he overheard Catherine tell Parker she had already fired two persons and Parker
and Wilson would be next. All of this, Catherine Kinkel denied in her testimony
But the events which immediately preceded Wilson's walking out on Friday,
October 2 and not coming back, related to his work. For several days partners
Catherine and Minnie Kinkel had made Wilson do much of his work over again,
claiming that his work of steaming and stretching the fabric before it was cut, was
not being done properly. Wilson claimed that it was, although both Catherine
Kinkel and employee Ann Chase (another steamer) testified at the hearing that it
was not done properly. Finally, on Friday afternoon, Wilson refused to do a cart
load of his work over again when both Catherine and Minnie ordered him to do so.
According to Catherine Kinkel's testimony, he was insolent and told her to do it
herself, using the same obscenity which Wilson charged she had earlier used to him.
According to Wilson, he merely said the work was done properly but later admitted
that he had also used the obscenity in retaliation for Catherine Kinkel's earlier use
of it to him. In any event, he did not do the work over and a short time later asked
for more work and either Minnie or Catherine Kinkel refused him further work
until he completed his work on the earlier batch. Thereupon Wilson punched the
clock, left the plant, and did not return except to get his pay.
There is no basis presented by this evidence to warrant a finding that, for dis-
criminatory reasons, the Respondent made things so difficult for Wilson that ter-
mination of his employment can be regarded as a constructive discharge I credit
Catherine Kinkel's denials of the remarks attributed to her in the alleged incidents
preceding the series of work incidents in the last few days and, in any event, even if
I should credit Wilson's testimony as to these incidents I would not regard them as
serious enough to conclude that Wilson's position was made intolerable. As to the
work incidents, I credit Catherine Kinkel's testimony, corroborated by that of
employee Ann Chase, that Wilson's work was in fact unsatisfactory in the respects
criticized by the Kinkels. It appears to me on the basis of what I have before me
that the Kinkels' requirement that the work be redone was justified, that they were
"not picking" on ham as Wilson testified and that his refusal to comply with their
orders was clear insubordination.
I find that Julian Wilson quit on October 2, 1964, and was not constructively dis-
charged. Accordingly I conclude that the Respondent did not discriminatorily dis-
charge him in violation of Section 8(a)(3) or (1) of the Act as alleged by the
complaint and shall dismiss these allegations of the complaint.
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 business operations of the Respondent as described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1), (3), and (5) of the Act, I will recommend that it
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Respondent discriminatorily discharged Wilson Lodge and
Eugene Savage on July 23, 1964, I will recommend that the Respondent offer each
of them immediate and full reinstatement without prejudice to his or her seniority
or other rights and privileges, and make him whole for any loss of earnings suffered
by reason of the discharge by payment to each of them of a sum of money equal
to that which he would have earned from the aforesaid date of discharge to the
date of the Respondent's offer of reemployment, less his or her net earnings during
said period.
Having found that the Respondent also discriminatorily refused reinstatement to
at least 5 of the 10 striking employees listed in Appendix B, although the exact
number and identity of the strikers affected may be determined only at the compli-
ance stage of this proceeding, I will recommend that the Respondent shall, within
20 days from the receipt of this Decision, (1) discharge or lay off employees hired
by it since July 23, 1964 (including such former employees it has been found were
. JOHN KINKEL & SON 775
not on leave of absence on that date), to such extent as may be necessary to provide
vacancies in jobs of the types held on July 23, 1964, by the persons listed in
Appendix B; (2) offer each of the 10 persons listed in Appendix B immediate and
full reemployment, in the order of their seniority with the Respondent, in any avail-
able job of the type which he or she would have continued to hold were it not for
the Respondent's discrimination against such person; (3) establish and thereafter
,observe a preferential hiring list including all persons listed on Appendix B for
whom there may not be jobs immediately available, and (4) immediately make whole
each of the persons listed in Appendix B for any loss of earnings he or she may
have suffered by reason of the Respondent's discrimination, by payment to each of
them of a sum of money equal to that which he or she would have earned from
September 21, 1964, to the date of the Respondent's offer of reemployment or to
-the Respondent's establishment of a preferential hiring list including such person,
as the case may be, less his or her net earnings during said period.
The backpay in the cases of Wilson Lodge, Eugene Savage, and each of the persons
listed on Appendix B, shall be computed in accordance with the formula stated in
F. W Woolworth Company, 90 NLRB 289. Furthermore, it will be recommended
that the Respondent pay interest on the backpay due to each of these employees,
such interest to be computed at the rate of 6 percent per annum and, using the
Woolworth formula, to accrue commencing with the last day of each calendar quarter
of the backpay period on the amount due and owing for each quarterly period.
Isis Plumbing & Heating Co., 138 NLRB 716.
Having found that the Respondent committed unfair labor practices by refusing
to bargain with the Union on and since July 30, 1964, I will recommend that the
Respondent, upon request, bargain collectively with the Union as the exclusive
representative of all employees in the appropriate unit and embody in a signed
agreement any understanding reached.
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. International Ladies' Garment Workers Union, AFL-CIO, is a labor organiza-
tion within the meaning of the Act.
2. Respondent, John Kinkel & Son, a partnership, is an employer engaged in com-
merce within the meaning of the Act.
3. By subjecting the Union's meetings to surveillance and by interrogating employ-
ees concerning their interest in, and support of the Union, the Respondent has inter-
fered with, restrained, and coerced employees in the exercise of the rights guaranteed
in Section 7 of the Act and has thereby committed unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. By discharging employees Wilson Lodge and Eugene Savage on July 23, 1964,
the Respondent discriminated against them in regard to their hire and tenure of
employment, in order to discourage membership in, and support of, the Union,
thereby committing unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
5. The Respondent, by its unfair labor practices described in paragraphs 3 and 4,
above, caused its employees to engage in a strike which began on July 23, 1964.
6. By failing and refusing to reinstate the striking employees listed in Appendix B
on September 21, 1964, Respondent discriminated against them in regard to their
hire and tenure of employment, in order to discourage membership in, and support
of, the Union, thereby committing unfair labor practices within the meaning of
Section 8(a) (3) and (1) of the Act.
7. All employees employed by the Respondent's New Shrewsbury plant, excluding
office clerical employees, professional employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
8. On and at all times since July 28, 1964, the Union has been and now is, the
exclusive representative of all employees in the aforesaid appropriate bargaining
unit for the purpose of collective bargaining within the meaning of Section 9(a)
,of the Act.
9. By refusing on and since July 30, 1964, to bargain collectively with the Union
as the exclusive representative of its employees in the aforesaid appropriate unit,
the Respondent has engaged in and is engaging in, unfair labor practices within the
meaning of Section 8 (a) (5) and (1) of the Act.
10. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
11. The Respondent has not committed other unfair labor practices as alleged in
the complaint.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon•
the entire record in the case, and pursuant to Section 10(c) of the National Labor-
Relations Act, as amended, it is recommended that Respondent, John Kinkel & Son,
a New Jersey partnership , its agents , successors , representatives , and assigns , shall:
1. Cease and desist from:
(a) Subjecting the union or organizational meetings of its employees to surveil-
lance, interrogating employees concerning their interest in, or support of, Interna-
tional Ladies' Garment Workers Union, AFL-CIO, or any other union, and in any
other, manner interfering with, restraining, or coercing employees in the exercise of
the right to self-organization, to form labor organizations, to join or assist the afore-
said Union, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in any other concerted activities for
the purpose of collective bargaining or other mutual aid and protection or to refrain
from any or all such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment, as authorized by Section 8(a) (3) of the Act.
(b) Discouraging membership in the aforesaid labor organization or any other
labor organization of its employees by discriminatorily discharging any of its
employees, or by discriminating in any other manner in regard to their hire and
tenure of employment or any term or condition of employment.
(c) Refusing to bargain collectively in good faith concerning wages, hours, and
other terms and conditions of employment, with International Ladies' Garment
Workers Union, AFL-CIO, as the exclusive representative of all employees in the
following appropriate unit:
All employees employed by Respondent's New Shrewsbury plant, excluding office
clerical employees, professional employees, guards, and supervisors as defined in
the Act
2 Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Offer to Wilson Lodge and Eugene Savage, immediate and full reinstatement
to his former position, or to a substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make each of them whole for any
loss of earnings suffered as a result of his discharge, in the manner set forth in the
section entitled "The Remedy."
(b) Take the following 4 steps within 20 days from the receipt of this Decision
with respect to the persons named in Appendix B •
(1) Discharge or lay off employees hired by it since July 23, 1964 (including such,
former employees .kho it has been found were not on leave of absence on that date)
to such extent as may be necessary to provide vacancies in jobs of the types held on
July 23, 1964, by the persons listed in the attached Appendix B:
(2) Offer each of the 10 persons listed on Appendix B immediate and full employ-
ment , in the order of their seniority, in any available job of the type which he or
she would have continued to hold were it not for the Respondent's discrimination
against such person;
(3) Establish, and thereafter observe, a preferential hiring list including all per-
sons listed on Appendix B for whom there may not be jobs immediately available; and
(4) Immediately make whole each of the persons listed in the attached Appendix
B for any loss of earnings he or she may have suffered by reason of the Respondent's
discrimination by payment to each of them a sum of money equal to that which he
or she would have earned from September 21, 1964, to the date of the Respondent's
offer of reemployment or the Respondent's establishment of a preferential hiring
list including such persons, as the case may be, less his or her net earnings during
said period.
(c) Notify any of the persons entitled to immediate or eventual reinstatement
under this Order, if they are 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
(d) Preserve and, upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all records necessary for the deter-
mination of the amounts of backpay due under the Order herein.
(e) Upon request bargain collectively with International Ladies' Garment Workers
Union, AFL-CIO, as the exclusive representative of all employees in the appropriate
unit with respect to rates of pay, wages, hours of employment, and other conditions
of employment, and embody in a cigned agreement any understanding reached.
JOHN KINKEL & SON 777
(f) Post at its plant in New Shrewsbury, New Jersey, copies of the attached notice
marked "Appendix C." 27 Copies of said notice, to be furnished by the Regional
Director for Region 22, shall, after being signed by a representative of Respondent,
be posted by it immediately upon receipt thereof, and be maintained 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
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director for Region 22 in writing, within 20 days from
the receipt of this Decision, what steps the Respondent has taken to comply herewith 28
It is further recommended that the Board dismiss the allegations of the complaint
asserting Respondent's commission of unfair labor practices other than those which
I have herein specifically found.
" In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words, "a Decision
and Order"
21 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith "
APPENDIX A
EMPLOYEES IN APPROPRIATE UNIT
AND VALID UNION BARGAINING
AUTHORIZATIONS AS OF
JULY 28, 1964
r
Employee
Exhibit Number
of Bargainuiq
Authorization
Exhibit Number
of Bargaiuinq
Employee Authorization
Allen, Ella Mae_____,______ GC-7m Jackson, Beulah__________ GC-7u
Alston, John_____________ Jones, Pok Sun___________
Anctil, Kazuko_____.______ Kleber, Raymond_________
Benefield, Eiko___________ Lodge, Wilson______ ______ GC-7v
Blackard, Ann ------------ GC-7n Lorenson, Jennie_________
Bloom, Ruth____________ Marshall, Henrietta-______ GC-7d
Bowles, Clara ------------- GC-7o Massey, Herta___________
Bowles, Lucy ------------ GC-7p Matthews, John__________
Brooks, Rachel ------------ GC-7q Mayo, Marion_____ ______ GS-7e
Brown, Luvester_________ GC-7r Merritt, John ------------ GC-7f
Burlew, Madeline__-_____ Merritt, Ruth______ ______ GC-7g
Carelli, Vera ______-_____ Mitchell, Elizabeth_ ------ GC-7c
Cosal, Flora_____________ Monroe, Maggie_________
Chase, Ann ------------- GC-7s Parker, William__________ GC-7h
DeSantis, Anthony--------- GC-7a Paschal, Ida_____________ GC-7w
Diaz, Sieglinde___________ Passeri, Jean_____________ GC-7gg
Dolce, Josephine--------- Perkins, Curtis ------------ GC-7x
Dolce, Stella_____________ Person, Margaret--- ______ GC-7y
Dominguez, Delfina______ GC-7j
Elberfeld, Emma_________
Emmons, Mary Naomi_____
Fulbright, Virginia-------- GC-7t
Gaskins, Louise__________
German, Grace__________
Glenn, Lila______________
Gordon, Virginia ___.______
Hampton, Carol---------
Hampton , Ruth ____.______
Herdon, Mary -----------
Hernandez , Ramon ------- GC-7i
Summary: Number of Employees in Unit: 60
Rasberry , Etsuko_________
Romano, Dora___ __ ______ GC-7k
Savage, Eugene__________ GC-7ee
Sheard , Henry----------- GC-7z
Slater, Audrey___________ GC-7hh
Smith , Betty_____________ GC-7aa
Stewart, Gloria__________ GC-7bb
Swetits, Ingetraut__________
Watts, Ruth______________
White, Hilda_____________
Williams, Helen__________ GC-7cc
Wilson, Julian___________ GC-7ff
Number of valid bargaining authorizations: 31
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
UNFAIR LABOR PRACTICE STRIKERS
WHO HAVE NOT BEEN REINSTATED
Ann Blackard Virginia Fulbright Margaret Person
Clara Bowles John Merritt Gloria Stewart
Luvester Brown Ida Paschal Helen Williams
Curtis Perkins
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT subject union or organizational meetings of our employees to
surveillance; interrogate our employees concerning their interest in, or support
of, a union; nor, in any other manner will we interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist International Ladies' Garment Workers' Union,
AFL-CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in any other concerted
activities for the purpose of collective bargaining or other mutual aid and pro-
tection or to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by Section 8(a)(3)
of the Act.
WE WILL NOT discourage membership in the aforesaid labor union or in any
other labor organization, by discriminatorily discharging and refusing to rein-
state any of our employees, or by discriminating in any other manner in regard
to their hire and tenure of employment or any term or condition of employment.
WE WILL offer to Wilson Lodge and Eugene Savage, reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
or other rights and privileges, and we will make them whole for any loss of
pay suffered as a result of their discharges
WE WILL take the steps recommended by the Trial Examiner for the immedi-
ate or eventual reinstatement of the 10 striking employees listed in the Trial
Examiner's Decision, and for their immediate compensation for loss of earnings
since September 21, 1964.
WE WILL NOT refuse to bargain collectively with International Ladies' Gar-
ment Workers' Union, AFL-CIO, as the exclusive representative of the employ-
ees in the bargaining unit described below.
WE WILL, upon request, bargain with the above-named union, as the exclusive
representative of all the employees the bargaining unit described below with
respect to rates of pay, wages, hours of employment, and other conditions of
employment, and if an understanding is reached embody such an understanding
in a signed agreement.
The bargaining unit is: -
All employees employed in our New Shrewsbury plant, excluding office
clerical employees, professional employees, guards, and supervisors as
defined in the Act
JOHN KINKEL & SON,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE -We will notify the employees entitled to reinstatement, if presently serv-
ing 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.
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 614
National Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No.
645-3088