Joy Togs, Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1949

83 N.L.R.B. 1024 (N.L.R.B. 1949)

In the Matter of Joy TOGS, INC . and AMALGAMATED CLOTHING WORKERS
OF AMERICA, PITTSBURGH DISTRICT JOINT BOARD, CIO
Case No. 6-C-1137.-Decided June 3, 194.9
DECISION
AND
ORDER
On February 11, 1949, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1) and (3) of the National
Labor Relations Act, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter the Respondent
filed exceptions to the Intermediate Report.
On May 10, 1949, the Board heard oral argument at Washing-
ton, D. C.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the contentions advanced at the oral
argument, and the entire record in the case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner with
the following modifications and exceptions.
1. The Trial Examiner found a violation of Section 8 (a) (1) in
Ben Katz' remarks to employee Betty Kubic urging her to vote for
District 50 of the United Mine Workers of America in the consent elec-
tion scheduled to be held a few weeks later. We disagree. Katz'
remarks at this time were clearly expressions of views, argument, or
opinion, unaccompanied by any threat of reprisal or promise of benefit,
and are therefore protected by Section 8 (c) of the Act.
2. We agree with the Trial Examiner in finding that the Respondent,
discriminatorily discharged the six complainants.' With respect to
i In his discussion of the evidence supporting this finding, the Trial Examiner made
several inadvertent errors with respect to the number of employees laid off, rehired, or
offered reinstatement by the Respondent . The evidence indicates that seven employees
83 N. L. R. B., No. 148.
1024
JOY TOGS, INC. 1025
Helen Benis, however, the record shows that at the end of March 1947,
the Respondent's bookkeeper, under instructions from the Respondent,
called her to offer her reinstatement. Although the matter is not free
from doubt, we find, on the basis of the record, that the Respondent
made Benis an offer of reinstatement which she did not accept 2
Accordingly we shall not order her reinstatement, and shall award
her back pay only from the date of her discharge to the date of the
offer of reinstatement made to her.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Joy Togs, Inc.,
Greensburg, Pennsylvania, and its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Clothing Workers
of America, Pittsburgh District Joint Board, CIO, or any other labor
organization of its employees, by discharging or refusing to reinstate
any of its employees or by discriminating in any other manner in
regard to their hire and tenure of employment, or any term or condi-
tion of employment;
(b) Interrogating its employees concerning their union affiliations,
or activities, threatening its employees that it will close or move the
plant if they vote for the Union, threatening its employees with loss
of their jobs if they join the Union, or in any other manner interfering
with, restraining , or coercing its employees in the exercise of their
were named as union members in the conversation between Betty Subic and Shep Miller
on March 14. Allegations and findings of discriminatory discharge were made as to six
of these ; the seventh , Mary Casagrande , was not included in the complaint. Of the six
complainants , four ( Virginia Leonard, Ann Harhai, Eva Harhai, Pauline Kutch ) were never
rehired or offered reinstatement ; one was offered reinstatement , but refused ( see footnote
2 infra ) ; and one, Roseann Cavello, was rehired after the complaint was issued and served
on the Respondent . Of the remaining employees laid off on March 18 and 19, 1947, it
appears that at least three had not been rehired at any time up to the date of the hearing,
but the record contains no evidence as to whether any of them was ever offered reinstate-
ment. We hereby correct any statements in the Intermediate Report inconsistent with the
foregoing.
2 Member Houston disagrees with the finding of the majority that an offer of reinstate-
ment was made to Helen Benis . At the time of her discharge Benis, like the other em-
ployees, left her name and a telephone number at which she could be reached . The number
was not her own, but was that of a neighbor . The Respondent 's bookkeeper called the
number at the end of March 1947, and spoke to a person , unidentified in the record, with
whom, she testified , she left a message. There is no evidence as to what the message was,
what was said in the telephone conversation , or whether Benis was told of the call or
received the message . In this state of the record , Member Houston believes that the
majority finding that the offer was made rests upon a series of inferences too farfetched
and tenuous to justify tolling the back pay of this discriminatorily discharged employee.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to self-organization, to form labor organizations, to join or assist
the Amalgamated Clothing Workers of America, Pittsburgh District
Joint Board, CIO, or any other labor organization, to bargain collec-
tively through representatives of their. own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activities
except to the extent that •such right may be affected by an agreement
requiring membership in a labor organization , as authorized in Sec-
tion 8 (a) (3) of the amended Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Virginia Leonard, Ann Harhai, Eva Harhai, and
Pauline Kutch immediate and full reinstatement to their former or
substantially equivalent positions 3 without prejudice to their seniority
or other rights and privileges;
(b) Make whole Virginia Leonard, Ann Harhai, Eva Harhai,
Pauline Kutch, Helen Benis, and Roseann Cavello for any loss of pay
each may have suffered by reason of the Respondent's discrimination
against her by payment to each of them of a sum of money equal to the
amount which she normally would have earned as wages from the date
of her discharge to the date of the Respondent's offer of reinstatement,4
less her net earnings 5 during said period ;
(c) Post at its plant in Greensburg, Pennsylvania, copies of the
notice attached hereto and marked "Appendix A." 6 Copies of said
notice, to be furnished by the Regional Director for the Sixth Region,
shall, after being signed by the Respondent's representative, be posted
by the Respondent, and maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps shall be
3In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
position ." See Matter of The Chase National Bank of the City of New York , San Juan,
Puerto Rico Branch, 65 N. L . R. B. 837.
4 Ro8eann Cavello was reinstated on November 3, 1948 Although the record does not
indicate the precise date in March 1947 on which Helen Benis was offered reinstatement,
we shall not require additional evidence at this time as the precise date may appear on the
basis of facts disclosed when compliance with this Order is undertaken.
5 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for the unlawful discrimination and the
consequent necessity of his seeking employment elsewhere . Matter of Crossett Lumber
Company, 8 N. L R. B. 440. Monies recived for work performed upon Federal , State,
county, municipal, or other work -relief projects shall be considered as earnings . Republic
Steel Corporation . v. N. L. R . B., 311 U. S. 7.
' In the event this order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words : "A DECISION AND ORDER " the words :
"DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING.".
JOY TOGS, INC. 1027
-taken by the Respondent to insure that said notices are not altered,
-defaced, or covered by any other material;
(f) Notify the Regional Director for the Sixth Region (Pittsburgh,
Pennsylvania) in writing, within twenty (20) days from the date of
the receipt of this order what steps the Respondent has taken to comply
herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in the AMALGAMATED
CLOTHING WORKERS OF AMERICA, PITTSBURGH DISTRICT JOINT
BOARD, CIO, or any other labor organization of our employees, by
discharging or refusing to reinstate 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 NOT interrogate our employees concerning their union
affiliations or activities, threaten our employees that we will close
or move the plant if they vote for the union, threaten our em-
ployees with loss of jobs if they join the union, or in any other
manner interfere with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form labor organi-
zations, to join or assist the AMALGAMATED CLOTHING WORKERS OF
AMERICA, PITTSBURGH DISTRICT JOINT BOARD, CIO, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all of such activities except
to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization, as authorized in Sec-
tion 8 (a) (3) of the amended Act.
WE WILL OFFER to Virginia Leonard, Ann Harhai, Eva Harhai,
and Pauline Kutch immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to
any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of
the discrimination against them.
WE WILL MAKE WHOLE Roseann Cavello and Helen Benis for any
loss of pay suffered as a result of our discrimination against them.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain, or refrain from be-
coming members of the above-named union or any other labor organi-
zation, except to the extent that this right may be affected by an
agreement in conformity with Section 8 (a) (3) of the amended Act.
We will not discriminate in regard to hire or tenure of employment or
any term or condition of employment against any employee because of
membership in or activity on behalf of any such labor organization.
Joy TOGS, INC.,
Employer.
By--------------------
(Representative ) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Messrs. Emil E. Natick and W. G. Stuart Sherman, for the General Counsel.
Messrs. Ben Paul Jubelirer and Robert Engel, of Pittsburgh , Pa., for the
Respondent.
STATEMENT OF THE CASE
Upon the first and second amended charges duly filed on April 27, 1947, and
October 26 , 1948, respectively , by the Amalgamated Clothing Workers of Amer-
' ica, Pittsburgh District Joint Board, affiliated with the Congress of Industrial
Organizations , herein called the Union, the General Counsel of the National Labor
Relations Board, herein respectively called the General Counsel and the Board,
by the Regional Director for the Sixth Region (Pittsburgh , Pennsylvania ), issued
a complaint , dated October 27, 1948, alleging that Joy Togs, Inc., herein called
the Respondent, had engaged in, and was engaging in, unfair labor practices
affecting commerce , within the meaning of Section 8 ( a) (1) and ( 3) and Sec-
tion 2 (6) and ( 7) of the National Labor Relations Act, as amended, 61 Stat.
.161, herein called the Act. Copies of the complaint and the aforesaid charges,
together with notice of hearing thereon , were duly served upon the Respondent
and the Union.
With respect to the unfair labor practices , the complaint, in substance, alleged
that the Respondent (1) through certain named officers , agents, and representa-
tives, by means of certain stated acts , interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act and
(2) discriminatorily discharged Virginia Leonard, Eva Harhai , Helen Benis, and
Pauline Kutch on or about March 18, 1947, and Ann Harhai and Roseann
Cavello' on or about March 19, 1947, and thereafter refused to reinstate them
because they had joined and assisted the Union and had engaged in concerted
activities with other employees of the Respondent for the purposes of collective
bargaining and other mutual aid and protection.
1 Since the issuance of the complaint , Cavello has been rehired.
JOY TOGS, INC. 1029
On or about November 23, 1948, the Respondent duly filed an answer admitting
certain allegations of the complaint with respect to its corporate existence, the
nature and extent of the business transacted by it, but denying the commission
of any of the alleged unfair labor practices.
Pursuant to notice, a hearing was duly held from January 10 to 15, 1949, at
Greensburg, Pennsylvania, before the undersigned, Howard Myers, the Trial
Examiner duly designated by the Chief Trial Examiner. The General Counsel
and the Respondent were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence pertinent to the issues was afforded the parties. At the
conclusion of the General Counsel's case-in-chief, the Respondent moved to dis-
miss the complaint in its entirety for lack of proof. The motion was denied. At
the conclusion of the taking of the evidence, the Respondent renewed its motion
to dismiss the complaint. Decision thereon was reserved. The motion is hereby
denied. The General Counsel's motion to conform the pleadings to the proof was
granted without objection. Although advised by the undersigned that they might
file briefs and proposed findings of fact and conclusions of law with him, the
parties did not avail themselves of the opportunity.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Joy Togs, Inc., a New York corporation, has its plant and principal place of
business at Greensburg, Pennsylvania, where it is engaged in the manufacture,
sale, and distribution of children's clothing. From January 1, 1947, to December
1, 1948, the Respondent's purchases aggregated in excess of $200,000, of which
approximately 99 percent was shipped to its plant from points located outside the
Commonwealth of Pennsylvania. - During the same period, the Respondent's sales
aggregated in excess of $200,000, of which approximately 99 percent was shipped
to customers located outside the Commonwealth of Pennsylvania.
The Respondent concedes, and the undersigned finds, that it is engaged in
commerce, within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America, Pittsburgh District Joint Board,
affiliated with the Congress of Industrial Organizations, is a labor organization
admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Operations at the Respondent's Greensburg plant commenced in November 1946.
Prior thereto, the Respondent's plant was located in the Borough of Brooklyn in
the City of New York, New York, where it had a collective bargaining contract with
the Union. This contract was terminated when the Respondent ceased doing
business in Brooklyn in the spring of 1946.
On the evening of March 13, 1947, Julia Maietta, a paid organizer of the Union,
accompanied by Cora Shrader, an employee of the Respondent, called at the
844340-50-vol. 83-66
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
home of Virginia Leonard, also an employee of the Respondent, where Maietta
discussed with Shrader and Leonard the unionization of the Respondent's
employees and left with Leonard a batch of membership application cards for
the purpose of distributing them among the Respondent's employees. Before
Maietta left Leonard's home, Leonard signed a membership application card
and handed it to Maietta.
Upon arriving at the plant the following morning, March 14, Leonard placed
a number of the membership application cards upon a post located approximately
25 feet from the entrance to the plant. As the employees, practically all of
whom are females, arrived for work, Leonard called their attention to the cards
and invited the employees to sign them. Several employees did sign cards before
entering the plant.
Later that day, before work commenced and during the morning and afternoon
rest periods, Leonard placed application cards upon the table in the ladies' second
floor rest room. Approximately 30 employees signed cards that day and subse-
quently delivered them to Lenoard who in turn gave them to Maietta.
Betty, Parise Subic testified that during the rest period on March 14, she
signed a membership application in the ladies' rest room ; that shortly before
quitting time that day, Sam Miller, the Respondent's vice president, requested
that she work overtime ; that she did as requested ; that after the usual quitting
time, Sam Miller informed her that his brother, Shep, and who is, and at that
time was, the Respondent's president, wanted to see her in the basement of the
plant ; and that the following then transpired :
I went down to the basement and when I got there Mr. Miller and
Mr. Katz (Respondent's Secretary-treasurer) were standing there, and
Mr. Miller asked me, "Did you sign a Union card?" I said, "Yes." He
said, "You might as well go to the CIO to get a job." I said, "Mr. Miller,
you might as well fire your whole factory, because they all signed," and he
said, "Who were the girls that signed?" Well, I named Mary Casagrande,
Helen Benis, Pauline Kutch, Eva Harhai, Ann Harhai, and Roseann Cavello,
and he wrote them down on a piece of paper.
Trial Examiner MYERS. Who?
The WITNESS. Mr. Shep Miller, and then he repeated the names after me
to see if they were correct. Then, he said, "Where did you get your card?"
I said, "Off the table." He said, "We know who is passing these cards out."
I said, "Who?" He said, "Virginia Leonard," and I said, "That is right,"
and he said, "We are going to make sure we get rid of her."
Kubic further testifies that during the aforesaid conversation, Shep Miller
said that he would "get rid of all those girls" whose names Kubic had given
him. She also testified that evening Shep Miller telephoned her at her home
and that the following conversation between them then ensued :
... and he said, "This is Shep Miller," and I said "Yes?" He said,
"Everything that I told you in the basement don't repeat," acid I said, "Mr.
Miller, I wouldn't think of repeating anything like that." I said, "I wouldn't
say a word." I said, "You can trust me, I wouldn't say nothing."
Shep Miller denied that he had any conversation with Kubic in the plant's
basement or that he had any telephone conversation with Kubic on March 14,
or at any other time. He further denied that he asked Kubic whether she or
any other employee had signed a membership application card of the Union ;
that Kubic had given him the names of the employees who signed union cards in
JOY TOGS, INC. 1031
her presence ; or that he made a written notation of any names allegedly given to
him by Kubic on March 14.
Ben Katz, who Kubic testified was present during the above related conversa-
tion of March 17 in the Respondent's basement, testified regarding that conver-
sation as follows :
Q. (By Mr. Jubelirer.) Betty Parise [Kubic] testified that on March 17
you and Mr. Shep Miller questioned her about signing a CIO application
card and any engagement of hers concerning Union activities. Did you,
together with Shep Miller, at that time or any other time, question her?
A. No, sir.
Kubic impressed the undersigned as an honest and forthright witness. Shep
Miller and Katz impressed the undersigned as though they were withholding the
truth. These facts, coupled with the additional fact that on March 18 and 19,
the Respondent, as will be shown below, laid off or discharged approximately 16
of its then approximately 67
He
workers, including Leonard and the 6
persons whose names Kubic 'testified that she gate Shep Miller and Katz on
"March 14 and the fact that sup sequently all the .bersons laid off on March 18
or 19, were rehired or offered reemployment except 4 of the 6 2 persons named by
Kubic in her March 14 conversation with Shep Miller and Katz, leads the under-
signed to the conclusion, and he finds, that Kubic's testimony is substantially in
accord with the facts. The undersigned further finds that Shep Miller made
the statements Kubic attributed to him in their two conversations of March 14.
This finding is buttressed by the credible testimony of Jane Craig who testified
that on March 14, Shep Miller asked her if she knew that union application cards
were being circulated in the plant; that she replied "Are they?" despite the fact
she had signed a card for Leonard earlier that day; that Shep Miller then asked
if she be to the Union in her last employment ; that she replied in the
affirmative.
On the evening of March 17, the Union held an open meeting in a public
inn near the plant. The meeting place was arranged for by Roseann Cavello,
an employee of the Respondent. The meeting was attended by approximately
25 employees of the Respondent and was presided over by Maietta and another
organizer of the Union. Among those who attended were Lois Hails and Ike
Lauffer' both of whom spoke against the advisability of the employees joining
this or any other union. Other employees spoke in favor of joining the Union.
Roseann Cavello testified that shortly after reporting for work on March 18,
the day following the aforesaid meeting of the Union, the following occurred :
I went to work and I just got to my machine and Sam Miller tapped
me on the shoulder, and he said to me, "Roseann, I thought you wanted to
work here," and I said, "Well, I am working." He said, "Well, you are caus-
ing trouble," and I says, "I ain't causing trouble. I didn't do anything." He
said, "You think I don't know but you got Midget Inn to have a meeting. You
had a meeting last night." He said, "Well, I will just tell you before I give
you a Union I will close up the plant and go back to New York where I came
from. In fact, that is the reason I am here. Those girls tried to organize
2 Casagrande was rehired on March 26, 1947; Cavello on November 3, 1948.
8 The General Counsel contended at the hearing that Hails and Laufer were supervisors
and therefore the Respondent is chargeable with their anti-union statements . As will be
shown below, Hails and Laufer were not, at the time of the meeting , supervisors within
the meaning of the Act.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a Union and I closed up there and came here and I will close up this place
before I will give you a Union."
Sam Miller denied, in effect, the statements attributed to him by Cavello. Upon
the record as a whole, coupled with the fact that Cavello impressed the under-
signed as being an honest and forthright witness and that Sam Miller did not
so impress the undersigned, it is found that Cavello's testimony regarding the
conversation she had with Sam Miller on March 18, to be substantially in accord
with the facts. The undersigned further finds that Sam Miller made the afore-
said statements attributed to by Cavello.
Regarding a conversation she had with Katz on March 19, Ann Harhal testified
without contradiction, and the undersigned credits her testimony, as follows :
Q. The day following the lay-off of your sister, and the other girls, did you
go to the restroom?
A. Yes.
Q. What happened when you emerged from the restroom?
A. Mr. Katz was standing by the doorway and asked me if I had joined
the Union. I replied I had and wanted-I replied, and he wanted to know
why. I said I wanted to have my rights as a working girl, and he said,
"You shouldn't have done it." I asked him why, and he said he would get
rid of all the girls that joined the Union, and that is the reason the other
girls were laid off-they hadn't been laid off, they were fired. That is the
reason he left New York, he said, because of Union trouble, and if necessary,
he would shut the place down.
The Respondent's antipathy for the Union is clearly shown by the credible
testimony of Kubic who testified that on or about April 9, several weeks prior to
the election conducted among the Respondent's employees by the Board on April
30, 1947, Katz and she had a conversation during which the following ensued:
... he (Katz) came to me and said, "Betty," he says, "does your father
work in the mines?" I said, "No." He said, "Do you have any brother or
relation?" I said , "No," and he said, "Well, vote for District 50 because
we don't want the CIO in here, because we had the same trouble in New
York and we don't want to have it here. We don't want the CIO in here."
He said, "Vote for District 50."
Kubic also testified, and the undersigned finds, that on the morning of the
aforesaid Board election, Shep Miller said to her, "Betty, don't forget to vote for
District 50 . . . If you want to keep your job, don't forget to vote for District
50" and that she replied, "Don't worry, I will."
Anna Kucik testified that about a week prior to the Board's election, Shep
Miller came to where she and several other girls were eating lunch and said to
them that the Respondent had sufficient business to keep the plant running; that
the Respondent would continue to operate the plant if District 50 won the
election ; that if the Union won,- the Respondent would close the plant. Kucik
further testified that later Shep Miller showed her a batch of orders for mer-
chandise and told her, to quote Kttcik, "he had a lot of work, it was up to us
whether we wanted to keep our jobs or not." Kucik also testified that on the
day before the Board's election Shep Miller said to her, "Make sure you vote for
the right one. . . . Make sure you tell the other girls" to do likewise. Shep
Miller denied making the statements attributed to him by Kucik and also denied
showing Kucik any orders, adding "he had no orders and no orders to show."
JOY TOGS. INC. 1033
Kucik was an honest and forthright witness and the undersigned is convinced, and
finds, that Kucik's testimony is substantially in accord with the facts and that
Shep Miller made the statements and did the things Kucik attributed to him.
The undersigned finds that by the acts, statements, and conduct of Shep Miller,
Sam Miller, and Ben Katz, as epitomized above, considered together with the
entire record in the case, the Respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act, in
violation of Section 8 (a) (1) of the Act.
B. The discharges of March 18 and 19, 1947
The complaint alleged that the Respondent discriminatorily discharged 4 named
persons on March 18, 1947, and 2 other named persons on March 19, 1947. The
Respondent's answer denied these allegations and at the hearing the Respondent
contended that for a period of time prior to March 18, the Respondent's orders
for merchandise began to decrease and that by March 18, the curtailment of
orders became so acute that it was obliged to lay off about 16 of its then approxi-
mate 67 production employees.
The General Counsel introduced voluminous evidence to rebut the Respondent's
contention with respect to the decrease in the Respondent's business. He con-
tended also that the Respondent selected only known union sympathizers to be
laid off.
The undersigned is of the opinion, and finds, that the record clearly indicates
that the Respondent's business did not warrant the retention of all of the
employees it had on March 18, and that a lay-off of some of them was justifiable.
The record, however, reveals sufficient facts upon which an inference of dis-
crimination may be safely drawn that the Respondent selected the complainants
herein for discharge because they were adherents of the Union.
The credible evidence clearly shows that on March 14, Kubic told Shep Miller
and Katz that Casagrande, Benis, Kutch, Eva and Ann Harhai, and Cavello
had signed application cards for membership in the Union and that Shep Miller
stated to Kubic that he intended to discharge them together with Leonard. The
credible evidence also discloses that these seven persons were discharged on
March 18 or 19.' Moreover, the undenied and credible testimony of Ann Harhai
discloses that Katz told her on March 19, that the employees laid off on March 18
were in fact discharged because they signed membership application cards of the
Union and that the Respondent would also discharge any other employee as soon
as it learns that she joined the Union. Accordingly, Ann Harhai was dis-
charged on March 19, shortly after she admitted to Katz that she had signed a
union membership application card.
The Respondent's actions as a whole, and particularly with respect to the
persons here involved, leads the undersigned to the inescapable and logical
conclusion that the Respondent had actual knowledge of the union membership
4 The Respondent contended at the hearing that the persons "let out" on March 18 or 19,
1947, were not discharged but only temporarily laid off. This contention is without merit.
In the first place, in the past it was the Respondent's practice with respect to employees
temporarily laid off not to pay them the wages due until the next pay day, which was
Friday. On this occasion, however, the "laid off" employees were paid by check, not in
cash as usual , for the wages due. Secondly , the Respondent , as will be shown, never
intended to recall the six persons here involved . Moreover , it was the Respondent ' s normal
practice after a lay-off to notify the laid-off employees to return to work and it failed to do
so with respect to these six persons, all of whom signed the, Union 's membership application
cards prior to their respective discharges.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of these six employees and that they were discriminated against because of their
activities in behalf of the Union and the undersigned so finds. This finding is
buttressed by the fact that all the persons laid off on March 18 and 19, were,
either rehired or offered reinstatement except four of the six persons named by
Subic in her conversation with Shep Miller and Katz on March 14.
Indeed , even if a specific finding could not be made based upon the direct evi-
dence that the Respondent had actual knowledge of the union membership and
activities of the dischargees in question , the other facts found , in and of them-
selves, reasonably justified the inference that the Respondent was motivated by
union considerations in selecting the employees to be laid off. In National
Labor Relations Board v. Link-Belt Co ., 61 S. Ct. 358 , there was no direct evidence
as to the employer 's knowledge of the union membership of the discharged em-
ployees. The court nonetheless sustained the inference of discrimination, de-
claring, at page 367:
The Board was justified in relying on circumstantial evidence of discrimi-
nation and was not required to deny relief because there was no direct evi
dence that the employer knew these men had joined the Amalgamated and
was displeased or wanted to make an example of them.
Also in National Labor Relations Board v. Chicago Apparatus Co., 116 F. (2d)
753 (C. A. 7), the court sustained the Board 's finding of discrimination despite
the fact that it did not appear from the direct evidence that the employee was a
member of the union.
The fact that the 6 persons here involved were selected for discharge, con-
trary to the Respondent 's contention , is clearly illustrated by the fact that be-
tween June 27, 1947 , and September 15, 1948, the Respondent inserted over
100 paid advertisements in the 2 newspapers published daily in Greensburg,
Pennsylvania , for persons to perform work that the 6 dischargees performed
while working for the Respondent. Furthermore , during the period from June
27, 1947 , and September 15, 1948, the Respondent hired , from time to time, over
100 new employees who performed work which the 6 dischargees were assigned
to do during their employment with the Respondent. These new employees
were hired because , admittedly , the Respondent 's business increased to such an
extent that more employees were needed and presumably such was the situa-
tion at the time of the hearing.
Evidence of the Respondent's discriminatory intent is also borne out by the
Respondent 's admitted failure to consider for consideration any of the six dis-
chargees prior to the hiring of new employees.
The Respondent makes no contention that the six complainants were not com-
petent to perform the tasks given them. In ' fact, it admitted that if anyone
of them had applied for her job , and if work was available , she would have been
rehired. It contended , however , that because none of the dischargees applied
for reinstatement the Respondent assumed that she was not interested in being
reinstated or that she had obtained other employment. However, when the
Respondent , under the pretext that the law-offs of March 18 and 19, were for a
short duration only , told each person so "laid off' to leave with the person in
charge of its office her telephone number and home address so that when busi-
ness improved the Respondent would be able to'notify them to return to work.
Each person "laid off" on March 18 and 19 did as requested . Admittedly, in the
past it was the practice of the Respondent to notify the laid-off person to return
to work when business improved , but the Respondent failed to do so with
respect to the six dischargees and the Respondent offered no reasons whatsoever
why it departed from its prior practice.
JOY TOGS, INC. 1035
The contention that the Respondent assumed that the dischargees were no
longer interested in being rehired or that they had obtained employment else-
where is clearly without merit for the Respondent admittedly received a letter
from the then Regional Director of Sixth Region of the Board a few days after
the date of the letter, March 19, 1947, notifying the Respondent that the Union
had filed a charge with him alleging that, among other things, certain employees,
among them the five of the six persons here involved were discharged in violation
of the Act 6 After the receipt of the letter, conferences were held between the
officials of the Respondent and a field examiner of the Board looking toward
the reinstatement, among other things of the dischargees. Therefore, it fol-
lows that the "assumption" that the six dischargees no longer desired their jobs
is, to say the least, fallacious.
a Furthermore, Cavello applied for reinstatement on several occasions during
1947, but was not rehired until November 3, 1948. Regarding her efforts to
secure reinstatement Cavello testified without contradiction, and the under-
signed credits her testimony, as follows :
Q. After leaving on March 19, 1947, did you ever call back to the Company?
A. Yes, I did, I called several times.
Q. Who did you talk to?
A. Well, a couple of times Mary Jane answered the phone and she said,
"Who are you?" I said, "This is Roseann Cavello. I would like to talk
to Mr. Miller. I got laid olf and I see an ad in the paper they are taking
girls back and I never got called back." So she connected me with him and
he said, "We don't have anything just now."
Trial Examiner Mynns. Which Miller?
The WITNESS. Sam Miller.
Q. (By Mr. Narick.) What did you ask him?
A. I said I didn't understand the ad being in the paper several times about
wanting girls and I was not called back, so I went down and talked to
him and said, "Mr. Miller, you never called me back," and he said he didn't
have much to do and I said, "Well, your ad has been in the paper week
after week that you wanted girls," and I said, "How about giving me the
job back?" He said, "I will take your name and phone number and get in
touch with you when I need you."
Cavello also testified, and the undersigned finds, that the above related personal
interview with Sam Miller took place in the early part of November 1947.
Upon the entire record in this case, the undersigned concludes and finds that,
by discharging Virginia Leonard, Eva and Ann Harhai, Helen Beals, Pauline
Kutch, and Roseann Cavello, because of their union activities, the Respondent
has discriminated with regard to the hire and tenure of their employment, thereby
discouraging membership in a labor organization, and interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed in Section
7 of the Act, in violation of Section 8 (1) and (3) thereof.
C. The alleged unfair labor practices
Several employees testified on behalf of the General Counsel to certain activ-
ities and statements of Ike Lauffer, Lois Pails, Dorothy Dranzik, and Ann Zalick.
The General Counsel contended at the hearing that the four named persons were
supervisors, within the meaning of the Act, and therefore the Respondent was
5 Ann Harhai 's name does not appear in the letter.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chargeable with their statements and activities. The record discloses, and the
undersigned finds, that the said four persons did actually say and do the things
which the witnesses attributed to them and the said actions and statements-
might properly be found to be violative of the Act provided the said four persons
were supervisors, as that term is defined in the Act. However, the credible
evidence clearly indicates that the said four persons do not, and never did, hold
any supervisory position with the Respondent.
Some employees testified that Lauffer was the "head cutter." The record
discloses that from November 1946 to November 1948, he was the only cutter
employed by the Respondent and that as a cutter he had no employees under
his supervision. Since November 1948, the Respondent has in its employ
two cutters but there is no evidence that Lauffer is the supervisor of the newly
hired cutter. It is therefore clear that during all the times material herein,
Lauffer was a nonsupervisory employee.
As to Zalick, certain employees testified that on one occasion the sewing room
employees were told by Sam Miller that in his absence Zalick was in charge
of the sewing room and that during his absence the employees were then to
take orders from Zalick. However, Sam Miller was absent from the plant on
only three Friday afternoons from November 15, 1946, to March 19, 1947, and on
each of those occasions the sewing room was under the direct supervision of either
Steep Miller or Ben Katz. Furthermore, there is no evidence that Zalick at. any
time issued any orders to the sewing room employees. Moreover, the duties of
Zalick, who was an experienced operator, were similar in nature to the duties of
the other operators in the sewing room except that Zalick also distributed the
material to be sewn and thereafter collected the finished garments. These added
duties were done under Sam Miller's direction and upon his instructions. Usually
the materials were distributed by Sam Miller and he collected the finished gar-
ments. The undersigned'finds that at no time herein material was Zalick a
supervisor and therefore the Respondent cannot be charged with violating the
Act because of her statements and activities.
With respect to Dranzik, the evidence discloses that when Zalick was in the
hospital for a period of about a month in 1947, Dranzik distributed the material
to the sewing room operators and collected the finished garments.. At all other
times, Dranzik was a sewing machine operator. Since it has been found that
Zalick, because of her added duties of distribution and collectiop, was not a super-
visor within the meaning of the Act, it follows that Dranzik cannot be so con-
sidered and the undersigned so finds. Therefore the Respondent cannot be
charged with her statements and activities.
Lois Hails worked in the cleaning, pressing, and inspection department. This
department was under the direct supervision of Shep Miller and he was present
in that department at all times while it was in operation. Hails' duties were
similar in all respects to the other cleaners and inspectors except that, upon
instructions from Shep Miller, she would occasionally distribute to the other
employees garments, and after the garments were pressed, cleaned, and inspected
she would collect them.
Ann Harhai testified that she was employed in the cleaning, pressing, and
inspecting department and that Shep Miller told her on one occasion that Hails
was the supervisor of that department. , The undersigned finds that Harhai mis-
understood Shep Miller because the record is barren of any evidence tending to
show that Hails was a supervisor or that she supervised, or gave orders to, any
employee. Hails only distributed and collected the garments when told to do
JOY TOGS, INC: 1037
so by Shep Miller otherwise she did the same work as the other cleaners and
inspectors did. The undersigned finds that at no time material herein was
Hails a supervisor, as that term is defined in the Act and hence the Respondent
cannot be charged with her statements and activities.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III above, occurring
in connection with the operations of the Respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and such of them as has been found to be unfair
labor practices, tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices
violating Section 8 (1) and (3) of the Act, the undersigned 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 has discriminated in regard to the hire
and tenure of employment of Virginia Leonard, Eva Harhai, Ann Harhai, Helen
Benis, Pauline Kutch, and Roseann Cavello, the undersigned will recommend
that the Respondent offer to each of them, except Cavello, who has been already
reinstated, immediate and full reinstatement to their former or substantially
equivalent positions,' without prejudice to their seniority and other rights and
privileges. The undersigned will also recommend that the Respondent make
Virginia Leonard, Eva Harhai, Ann Harhai, Helen Benis, and Pauline Kutch
whole for any loss of pay they may have suffered by reason of the Respondent's
discrimination against them, by payment to each of them of a sum of money
equal to the amount she would have normally earned as wages from the date
of her respective discharge to the date of the Respondent's offer to reinstate-
ment, less her net earnings during such period.' The undersigned will also
recommend that the Respondent make Roseann Cavello whole for any loss of
pay she may have suffered by reason of the Respondent's discrimination against
her, by payment to her of a sum of money equal to the amount she would have
normally earned from the date of her discharge to November 3, 1948, the date
of her reinstatement, less her net earnings, during such period.
The scope of the Respondent's illegal conduct discloses a purpose to defeat
self-organization among its employees. Shortly after the Respondent learned
of the union activities of its employees it sought to coerce them in the exercise
of the rights guaranteed them in the Act by discriminatorily discharging the
known union adherents. Such conduct, which is specifically violative of Sec-
tion 8 (1) and (3) of the Act, reflects a determination generally to interfere
with, restrain, and coerce its employees in the exercise of the right to self-
organization , to form, join, or assist labor organizations, to bargain collectively
"In accordance with the Board 's consistent interpretation of the term ,, the expression
"former or substantially equivalent position " Is intended to mean "former position wher-
ever possible and if such position is no longer in existence then to a substantially equivalent
position ." See Matter of The Chase National Bank of the City of New York , ,San Juan,
Puerto Rico Branch, 65 N. L., R. B. 827. ,
1 See Matter, of Crossett Lumber Co., 8 N. L. R. B. 440.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through representatives of their own choosing , and to engage in concerted activi-
ties for the purposes of collective bargaining or other mutual aid or protection,
and presents a ready and effective means of destroying self-organization among
its employees. Because of the Respondent's unlawful conduct and since there
appears to be an underlying attitude of opposition on the part of the Respondent
to the purposes of the Act to protect the rights of employees generally,* the
undersigned is convinced that if the Respondent is not restrained from com-
mitting such conduct, the danger of their commission in the future is to be
anticipated from the Respondent's conduct in the past, and the policies of the
Act will be defeated. In order, therefore, to make effective the interdependent
guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor
practices, and thereby minimize industrial strife which burdens and obstructs
commerce, and thus effectuate the policies of the Act, the undersigned will rec-
ommend that the Respondent cease and desist from in any manner infringing
upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following :
CoNCLusIONs OF LAW
1. Amalgamated Clothing Workers of America, Pittsburgh District Joint Board,
affiliated with the Congress of Industrial Organizations, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in, and is engaging in, unfair labor practices, within the meaning of Section
8 (a) (1).
3. By discharging and discriminating in regard to the hire and tenure of em-
ployment of Virginia Leonard, Ann Harhai, Eva Harhai, Helen Benis, Pauline
Kutch, and Roseann Cavello, thereby discouraging membership in the Amal-
gamated Clothing Workers of America, Pittsburgh District Joint Board, affiliated
with the Congress of Industrial Organizations, the Respondent has engaged in,
and is engaging in, unfair labor practices, within the meaning of Section 8 (a) (3)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
On the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the Respondent,
Joy Togs, Inc., Greensburg, Pennsylvania, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Clothing Workers of America,
Pittsburgh District Joint Board, affiliated with the Congress of Industrial
Organizations, or any other labor organization of its employees, by discharging
or refusing to reinstate any of its employees or by discriminating in any other
manner in regard to their hire and tenure of employment, or any term or con-
dition of employment ;
$ Bee May Department Stores Company, etc. v. N. L. R. B., 326 U . S. 376.
JOY TOGS, INC. 1039
(b) In any other manner Interfering with, restraining , or coercing its employees
in the exercise of the right to self-organization, to form labor organizations, to
join or assist the Amalgamated Clothing Workers of America, Pittsburgh Dis-
trict Joint Board , affiliated with the Congress of Industrial Organizations, or any
-other labor organization , to bargain collectively through representatives of their
own choosing , and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Virginia Leonard, Ann Harhai, Eva Harhai, Helen Benis, and
Pauline Kutch immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights and
privileges ;
(b) Make whole Virginia Leonard, Ann Harhai, Eva Harhai, Helen Benis,
and Pauline Kutch for any loss of pay each may have suffered by reason of the
Respondent's discrimination against her by payment to each of them of a sum
of money equal to the amount which she normally would have earned as wages
from the date of her respective discharge to the date of the Respondent's offer
of reinstatement, less her net earnings , during said period ;
(c) Make whole Roseann Cavello for any loss of pay she may have suffered by
reason of the Respondent's discrimination against her by payment to her of a
sum of money equal to the amount which she normally would have earned as
wages from the date of her discharge to November 3, 1948, the date which
she was reinstated, less her net earnings during said period ;
(d) Post at its plant in Greensburg, Pennsylvania, copies of the notice attached
to this Intermediate Report marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director for the Sixth Region, shall, after being signed
by the Respondent's representative, be posted by the Respondent, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material ;
(e) Notify the Regional Director for the Sixth Region in writing, within twenty
(20) days from the date of the receipt of this Intermediate Report, what steps
the Respondent has taken to comply therewith.
It is further recommended that unless on or before twenty - (20) days from
the receipt of this Intermediate Report, the Respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board- Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Rochambeau Building , Washington 25, D. C., an original
and six copies of a statement in writing setting forth such exceptions to the
Intermediate Report and Recommended Order or to any other part of the record
or proceeding ( including rulings upon all motions or objections) as he relies
upon, together with the original and six copies of a brief in support thereof ; and
any party may, within the same period, file an original and six copies of a brief
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in support of the Intermediate Report and Recommended Order. Immediately
upon the filing of such statement of exceptions and/or briefs, the party filing the
same shall serve a copy thereof upon each of the other parties. Statements of
exceptions and briefs shall designate by precise citation the portions of the
record relied upon and shall be legibly printed or mimeographed, and if mime-
ographed shall be double spaced. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section 203.85.
As further provided in said Section 203.46 should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of service of the order transferring
the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 11th day of February 1949.
HOWARD MYERS,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, of coerce our em-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist Amalgamated Clothing Workers of America,
Pittsburgh District Joint Board, affiliated with the Congress of Industrial
Organizations, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.
WE WILL OFFER to Virginia Leonard, Ann Harhai, Eva Harhai, Helen
Benis, and Pauline Kutch immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to any seniority or
other rights and privileges previously enjoyed, and make them whole for
any loss of pay suffered as a result of the discrimination.
WE WILL MARIE Rose Ann Cavello whole for any loss of pay suffered as a
result of our discrimination against her.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
Joy TOGS, INC.,
Employer.
Dated--------------------------- By---------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.