Leiter Manufacturing Co.

National Labor Relations Board - Board Decisions

May 23, 1955

112 N.L.R.B. 843 (N.L.R.B. 1955)

LEITER MANUFACTURING COMPANY 843
In view of the foregoing, and as it appears that at the time the
elections directed herein take place there will be employed a substan-
tial and representative segment of the working force ultimately to be
employed in each of the above voting groups, we seen no reason for
departing from the Board's usual policy of directing immediate
elections."
[Text of Direction of Elections omitted from publication.]
""'Ware Cotton Batting Co ., Inc., 104 NLRB 363; Pershing Avenue Corporation, Ivers &
Pond Piano Company , Paul G . Mehlin & Sons and Poole Piano Company, 98 NLRB 148.
Sam Leiter and George Goldberg , Partners d/b/a Leiter Manu-
facturing Company and International Ladies Garment Work-
ers' Union, AFL. Case No. 16-CA-740. May 23, 1966
DECISION AND ORDER
On December 23,1954, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, sustaining
certain portions of the complaint alleging violations of Section 8 (a)
(1) and (3) by the Respondent and dismissing other portions of the
complaint alleging violations of Section 8 (a) (1), (3), and (5). He
recommended, as to the violations found, that the Respondent cease
and desist therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter,
the Respondent and the Charging Union filed exceptions to the Inter-
mediate Report. The Respondent also requested oral argument.
This request is hereby denied, as the record, including the exceptions,
adequately presents the issues and positions of the parties.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions, and the entire record in this case and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, except as hereafter noted.
We agree with the Trial Examiner that the Respondent did not
violate the Act by refusing to recognize the Union on February 6, 9,
or 17,1954. However, the Trial Examiner found that the Respondent
thereafter unlawfully refused to bargain with the Union late in Febru-
ary or early in March, when its counsel, Berwald, advised the Union's
counsel, Morris, that the Respondent "was precluded from negotiating
at all with [the Union] because of the State court case." The Trial
Examiner so decided even though finding that in the same conver-
sation Berwald stated the Respondent was also relying upon its initial
112 NLRB No. 114.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ground for refusing to bargain-a good-faith insistence that the
Union establish its right to represent the Respondent's employees in
a Board representation proceeding. Upon such facts, we cannot agree
with the Trial Examiner that the Respondent's added reason for re-
fusing to recognize the Union converted its good-faith insistence on an
election into a refusal to bargain in violation of Section 8 (a) (5).
The Trial Examiner concluded that the Respondent violated Sec-
tion 8 (a) (5) on or about April 27 by unilaterally instituting a.system
of paid holidays. In his opinion, the Respondent, on that date, had
a statutory duty to bargain with the Union dating from late February
or early March. As the Union has not, at any time material herein,
established itself as the statutory representative of the Respondent's
employees, we find that the Respondent was not required to consult
the Union before instituting the paid holiday program.
Accordingly, we shall dismiss those portions of the complaint alleg-
ing that the Respondent violated Section 8 (a) (5) of the Act.
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 Sam Leiter and George Goldberg,
Partners d/b/a Leiter Manufacturing Company, Dallas, Texas, their
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Ladies Garment
Workers' Union, AFL, or in any other labor organization, by refusing
to reinstate any of their employees, or in any other manner dis-
criminatmg in regard to their hire or tenure of employment, or any
term or condition of employment.
(b) Interrogating their employees or applicants for employment
regarding their union activities, affiliations, or sympathies or those
of their fellow employees, in a manner constituting interference, re-
straint, or coercion in violation of Section 8 (a) (1) of the Act.
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Mary Johnson immediate and full reinstatement to her
former or substantially equivalent position, without prejudice to her
seniority or other rights and privileges previously enjoyed, and make
her whole, in the manner set forth in the section of the Intermediate
LEITER MANUFACTURING COMPANY 845
Report entitled "Recommendations," for any loss of pay she may have
suffered because of the discrimination against her.
(b) Upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records,
social-security payment records, timecards, personnel records and re-
ports, and all other records necessary to determine the amount of
back pay due under the terms of this Order.
(c) Post at their plant in Dallas, Texas, copies of the notice attached
hereto marked "Appendix A." 1 Copies of such notice, to be furnished
by the Regional Director for the Sixteenth Region, shall, after being
duly signed by the Respondent Partners' representative, be posted by
them immediately upon receipt thereof and be maintained by them for
sixty (60) consecutive clays thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent Partners to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) clays from the date of this Order as to the
steps the Respondent Partners have taken to comply herewith.
IT is FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent Partners have violated the Act otherwise than herein
found, be, and it hereby is, dismissed.
MEMBERS MURDOCIK and LEEDODM took no part in the consideration
of the above Decision and Order.
I In the event that this Order is enforced by decice of a United States Court of Appeals,
there shall be substituted for the words "Pnmsuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order"
APPENDIX A
NOTICE To ALL El\IPLOYEEs
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in International Ladies
Garment Workers' Union, AFL, or in any other labor organiza-
tion, by refusing to reinstate any of our employees, or in any
other manner discriminating in regard to their hire or tenure of
employment, or any term or condition of employment.
WE WILL NOT interrogate our employees or applicants for em-
ployment regarding their union activities, affiliations, or sym-
pathies, or those of their fellow employees, in a manner constitut-
ing interference, restraint, or coercion in violation of Section 8
(a) (1) of the Act.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed them
in Section 7 of the Act, except to the extent that such rights may
be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Sec-
tion 8 ( a) (3) of the Act.
WE WILL offer to Mary Johnson immediate and full reinstate-
ment to her former or substantially equivalent position , without
prejudice to her seniority or other rights and privileges pre-
viously enjoyed , and make her whole for any loss of pay suffered
because of the discrimination against her.
All our employees are free to become, remain , or refrain from be-
coming or remaining members of International Ladies Garment Work-
ers' Union , AFL, or any other labor organization.
SAM LEITER AND GEORGE GOLDBERG , PARTNERS
D/B/A LEITER MANUFACTURING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Repiesentative) - (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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding involves allegations that Sam Leiter and George Goldberg,
Partners d/b/a Leiter Manufacturing Company, Dallas, Texas, herein called the
Respondents, have interfered with, restrained, and coerced their employees in cer-
tain specified respects since about February 3, 1954; that on February 5, 1954, they
laid off 33 employees and on February 8, 1954, laid off an additional employee,
Virgie Kent, and have refused to reinstate 7 of these employees and delayed rein-
stating the others because they joined or assisted International Ladies Garment
Workers' Union, AFL, the Charging Party, herein called the Union, or engaged
in other concerted activities; that this conduct of the Respondents caused their
employees to go on strike on or about February 10, 1954; that since about February
6, 1954, they have failed and refused to bargain collectively with the Union as the
exclusive representative of their employees in an appropriate unit, although the
Union had been selected as bargaining agent by a majority of the employees in such
unit and had requested the Respondents to bargain; and that on April 27, 1954,
they unilaterally instituted a system of paid holidays for the employees in such
unit. It is alleged that this conduct violated Section 8 (a) (1), (3), and (5) of
the National Labor Relations Act, as amended (61 Stat. 136), herein called the
Act. After the issuance of a complaint by the General Counsel' and the filing of
an answer by the Respondents, a hearing was held before me on various dates be-
tween June 22 and July 12, 1954, inclusive, at Dallas, Texas. All parties were
represented and participated fully in the hearing.2 All parties have filed briefs
which have been duly considered.
1 The designation General Counsel is intended to include the General Counsel of the
National Labor Relations Board and his representative at the hearing
a The record shows that Respondents' Exhibit No 25 was rejected and the reporter in-
structed to bind it in a separate folder containing rejected exhibits. Moreover, ruling was
LEITER MANUFACTURING COMPANY 847
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
There is no dispute and I find that: (1) The Respondents are engaged in com-
merce within the meaning of the Act; 3 (2) the Union is a labor organization within
the meaning of the Act; (3) all production employees of the Respondents, excluding
patternmakers, designers, office clerical employees, and supervisors, constitute a
unit appropriate for the purposes of collective bargaining ; and (4) on or about Febru-
ary 6, 1954, the Union requested the Respondents to bargain collectively with the
Union as the exclusive representative of the employees in the above-described unit.
The disputed issues are (1) whether the Respondents interfered with, restrained, and
coerced their employees; (2) whether the Respondents discriminatorily laid off
or refused to reinstate the employees named in the complaint, and (3) whether the
Respondents illegally refused to bargain with the Union as the representative of the
employees in the said unit.
A. Sequence of events
During the period in question, the Respondents employed a plant complement of
approximately 55 nonsupervisory employees, under the ultimate supervision of Sam
Leiter, the managing partner, herein referred to as Leiter. On February 4, 1954,
the crucial date, Simon K. Herzog was general superintendent and Irene Pettit was
floorlady of the sewing room. Herzog left the Respondents' employ on February 5.4
The Respondents' plant occupies the 5th floor of a 7-story building which also houses
other garment factories.
Under the guidance of Louis Glickman, a representative of the Union, the
Union commenced organizational activities among the Respondents' employees in
the last half of January and held its first organizational meeting on February 3. On
February 3 and 4, a substantial number of the Respondents' employees signed cards
authorizing the Union to represent them for purposes of collective bargaining. At
the close of business on February 4 Pettit announced to the employees in the sewing
room that the plant would be closed and directed them not to return unless they were
called, except to pick up their paychecks on the following Tuesday, February 9.5
She then individually requested a few of the employees to report for work the next
morning. However, on orders from Leiter, the plant was virtually closed on Fri-
day, February 5. Several more employees signed union cards that day. On Satur-
day, February 6, Glickman personally delivered to Leiter a letter in which the Union
claimed to represent a majority of the Respondents' production employees and re-
quested the Respondents to bargain . This letter contained the names of 32 em-
ployees whom the Union claimed to represent. The discussion between Glickman
and Leiter which ensued will be dealt with in more detail hereafter. On Monday,
February 8, the plant resumed operations with a few employees. Several other em-
ployees signed union cards that day. On February 8 or 9, at a union meeting, it
was decided that none of the employees would return to work until they were all
called back together. On the night of February 9, the Union dispatched a telegram
to Leiter protesting the Respondents' refusal to recognize and bargain with the Union,
accusing the Respondents of locking out their workers because of their union mem-
bership, and threatening to picket the plant the next day unless Leiter changed his
mind. On the following morning, February 10, the Union established pickets in
reserved on General Counsel's Exhibits Nos 34, 47, 48, and 49 However, the reporter
inadvertently stamped these exhibits on their faces as received. The stamps on these five
,exhibits are hereby corrected to conform with the rulings made at the hearing. Union's
Exhibits Nos 5, 6, 7, and 8, not having been physically delivered, are hereby stricken from
the record.
3 The Respondents are engaged in the manufacture, sale, and distribution of ladies' dresses
and wearing apparel, with their principal office and place of business in Dallas, Texas. Dur-
ing the year 1953, they purchased raw materials valued in excess of $17.5,000, of which
more than 80 percent was received from outside the State of Texas. During the same
period, the Respondents sold products valued in excess of `514,000, of which more than
40 percent was shipped to points outside the State of Texas. The Respondents employ
salesmen who work in 13 States other than the State of Texas.
4 All dates herein refer to the year 1954, unless otherwise indicated.
A There is some testimony to the effect that Pettit indicated the shutdown was temporary.
848 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
front of the Respondents' plant 6 Some of the employees who had been requested
to return to work refused to do so. Others reported to work despite the picket
line and the plant remained in operation with a drastically reduced work comple-
ment. On the same day, the Union received from the Respondents a letter replying
to its demand for recognition. This letter, which had been mailed on February 9
before receipt of the Union's telegram, stated that the Respondents would iecognize
the Union "upon it being established in accordance with the Labor Management Rela-
tions Act, 1947, that this Union is entitled to such recognition." On February 11,
the Union commenced an action in a State court in which it sought to compel the
Respondents to reinstate immediately 35 named employees.7 On February 16, the Re-
spondents wrote to 11 employees (including those who had been called back on
February 8, 9, and 10 but had absented themselves on Februaiy 10 and some others
who had not been recalled previously) requesting them to report for work on February
18. None complied. The trial in the State court commenced on February 16 and
ended on Friday, February 19. On the latter date, the pickets were withdrawn. On
Monday, February 22 (a holiday), the Union notified the Respondents that all the
employees represented by the Union would present themselves at the plant for em-
ployment the next morning. On Tuesday, February 23 (the next business day after
the end of the State court trial), the State court denied the Respondents' plea that
it lacked jurisdiction, found that the employees had lost their employment because
of their union membership, and issued a temporary injunction requiring the Re-
spondents to reinstate immediately all employees represented by the Union, provided
that the injunction would be set aside automatically if the National Labor Relations
Board assumed jurisdiction. On the same day, the Respondents obtained from the
Texas Court of Civil Appeals, Fifth Supreme Judicial District, an order staying the
trial court's temporary injunction pending appeal. On the same day, the employees
represented by the Union (with one exception) reported for work and many were
recalled either that day or later that week. Two more were recalled later, but others
have never been reemployed, despite another request by the Union for their rein-
statement on February 26.
During the last half of February, representatives of the Union and attorneys for the
Respondents conferred several times and attempted to settle the differences be-
tween the parties, but these efforts proved fruitless. On March 3 the charges herein
were filed 8 In April further conferences and correspondence between representa-
tives of the parties took place. On June 4, the Texas Court of Civil Appeals, Fifth
Supreme Judicial District, dissolved the temporary injunction issued by the lower
court, holding in part that, as the Respondents were engaged in an interstate busi-
ness, the trial court had lacked jurisdiction.9
e Six separate signs wei e carried by the pickets They lead
1 Democracy lias Been Good To Sam Leiter, But He Doesn't Practice It We Are
Locked Out Because We Exercised Our Right To Join A Union I L G W. U , A F.
of L
2 We Want To Work But Are Locked Out, Leiter Manufacturing Company Won't
Let Us Work Because We Joined A Union I L. G W U , A F of L.
3 Democracy llas Been Good To Sam Leiter He Doesn't Practice It We Have
Been Locked Out Because We Exercised Our Lawful Rights To Join A Union I L.
G W U , A F of I,
4 Leiter -Manufacturing Company Has Locked Out Its Employees For Trying To
Get Union Representation I L G W. U , A F of L
5 This Is A Lockout. Sam Leiter Denies His Employees Their Rights As Free
Americans To Be Repi esented By A Union. I L G W U , A F of L
6 We Aie Locked Out Leiter Manufactumnrg Company Won't Allow Its Employees
To Be Represented By A Union I. L G W U, A Ii' of L.
vln,ternataoilal Ladies Gar meet 1VoiSees' Unions v Sans, Letter et ux, d/b/a Leiter Maetc-
facteriup Company, District Couit for the 68th Judicial District of Texas, No 87507-C.
The employees on whose behalf this suit was biought included the 34 named in the com-
plaint herein, plus Jack Maer, a cutter, who had signed a union designation card on
February 8
s On Dlarch 8 the Respondents wrote to four of the employees named in complaint asking
them to report to 'aoilc on Dlarch 10 Three of the addiessees were then working for the
Respondents , the fourth had quit a few clays previously and apparently ignored this request
Lester ^11aruifactimny Couspany v Inteinationat Lad see' Garment Workers' Union, AFL,
34 LRR11 2748. The time for hung a motion for reheating has expired No such motion
having been filed, the decision cited herein constitutes the final judgment in the State case.
LEITER MANUFACTURING COMPANY 849
B. Interference, restraint, and coercion
1. Contentions with regard to interference, restraint, and coercion
The complaint alleges that, from on or about February 3, the Respondents, through
their agents, Leiter and Pettit, interfered with, restrained, and coerced their em-
ployees in the following respects. (a) On or about February 3 and 4, Pettit inter-
rogated employees with regard to whether they had signed union application cards
and the identity of the person who brought the cards into the plant; (b) on or about
March 4, Pettit questioned applicants for employment regarding their connection
with the Union; and (c) by letters dated February 16, the Respondents solicited
striking employees to return to work.
The answer in one place neither affirms nor denies the allegations that Pettit in-
terrogated employees, but in another place denies (on information and belief) that
such questioning took place, and alleges that if such interrogation occurred, Pettit
acted in this respect "without the authority, knowledge, or consent of Respondents."
Any interrogation of employees by Leiter is denied. In addition, the answer admits
that, by letters dated February 16, the Respondents solicited employees to return to
work but denies that such conduct violated the Act.
2. Interrogation
On the afternoon of February 4, Pettit approached Aleene Lidster, a single needle
operator, and asked her. "Have you signed a card?" Lidster gave an evasive
reply. Pettit then asked Lidster who had the cards. Lidster answered that she did
not know 10
On the same afternoon, Jesse Evans, a single needle operator, asked Pettit if she
belonged to the Union. Pettit answered that she did not. Evans then inquired
about Pettit's opinion of signing a union card. Pettit asked Evans who had the cards.
Evans replied- "Mary Johnson [another single needle operator] has them." i1
On the same afternoon, Pettit came to the machine of Norvella Knox, a single
needle operator, and inquired if Knox was going to sign the card. Knox asked,
"What card?" Pettit answered, "The union card." Knox then asked, "Well, do
you have to sign it?" Pettit responded, "It is just up to the girls " 12
On the same afternoon, Pettit approached Jesse Nevarez, another single needle
operator, at her machine and told Nevarez she wanted to tell her something if she
would keep a promise. When Nevarez asked what promise Pettit referred to,
Pettit explained that she couldn't tell Nevarez at that time "because the girls are
looking at me right now." Later that afternoon, Pettit asked Nevarez, "Did you
sign a Union card?" Nevarez replied that she had not. Pettit then inquired, "Who
are the girls that brought these cards upstairs?" Nevarez responded that she did not
know.r3
On March 4, Paralee Cullins and Bessie Adams applied for employment at the Re-
spondents' plant. Pettit questioned them about their previous experience. She
also asked them, "Have you girls any connections with the Union?" Both applicants
replied that they did not. Both were hired 14
In Blue Flash Express, Inc ,15 the Board abandoned its previous rule that any
interrogation of employees regarding their union sympathies or affiliation was per se
prohibited by the Act Instead, it was held that the legality of any questioning of em-
ployees depends upon whether under all the circumstances the interrogation reasonably
30 The findings of fact with regard to this conversation are based upon the credited testi-
mony of Lidster Pettit admitted asking Lidster if she had signed a card. Pettit did not
impress inc is it candid witness Hcr testimony on sonic other matters was contradictory
and evasive I credit only so much of her testimony as was uncontradicted, corroborated
by credited witnesses, of cleaily consistent with other undisputed facts
'1 The findings of tact with respect to this conversation are based upon the mutually cor-
roborative testimony of Lidster and Johnson, both of whom overheard the conversation.
Evans did not testify Although Pettit testified, she did not refer to this incident
12 The findings of fact w 11 It respect to this conversation are based upon the credited testi-
mony of Knox Pettit adnutted asking Knox if she had signed a cai d
13 The findings of fact with regard to this conversation are based upon the credited testi-
mony of Nevaiez Pettit adinltted asking Nevaiez if she had signed it card
1i The findings of fact with respect to this conversation are based upon the uncontradicted
testnnony of Culiins Although both Adams and Pettit testified, neither of them referred
to this incident
15109 NL1tL' 591
850 DECISIONS OI, NATIONAL LABOR RELATIONS BOARD
tended to restrain or interfere with the employees in the exercise of rights guaranteed
by the Act. Applying this test to the facts at hand, I am of the opinion that, in
the context of other unfair labor practices found below to have been committed by
the Respondents, Pettit's interrogation described above, if attributable to the Re-
spondents, is violative of Section 8 (a) (1) of the Act.16 This is particularly true of
the questioning of job applicants, for when someone applies for work an inquiry as to
her union affiliations is not casual, isolated conversation, it suggests, on the con-
trary, that the answer may have vital impact on whether or not she obtains the job.
The Respondents urge that Pettit was not a supervisor within the meaning of the
Act, and that her actions described above were without the Respondents' knowledge
or consent. The General Counsel contends that she was a supervisor. The record is
replete with instances of Pettit's hiring, disciplining, laying off, and discharging
employees under her supervision. Moreover, she admitted that Herzog had au-
thorized her "to hire as I saw fit." Finally, Marie Dandridge, the Respondents'
receptionist, testified that, in some instances, applicants for employment have been
hired and employees discharged on Pettit's "say so." It is accordingly found that
Pettit was, at all material times, a supervisor within the meaning of the Act. This
being so, her activities are chargeable to the Respondents without regard to their
knowledge or consent.17 I conclude that the Respondents, since February 4, 1954,
have interfered with, restrained, and coerced their employees. This finding is based
upon Pettit's interrogation of employees Lidster, Evans, Knox, and Nevarez on Feb-
ruary 4 regarding whether they had signed union application cards and the identity of
the person who had the cards, and her questioning of job applicants Cullins and Adams
on March 4 with respect to their connections with the Union.
3. Solicitation of individual strikers to return to work
On February 16, the Respondents sent letters to a number of their employees, some
of whom were strikers. These letters read as follows-
We have some work on hand to be done, and therefore ask you to report to
work on Thursday Morning, February 18, 1954, at 8 A. M.
We hope you will report; otherwise we will be compelled to employ other
persons.
The General Counsel maintains that this constituted illegal solicitation of indi-
vidual strikers to abandon the strike. However, as will hereafter appear, this was an
economic strike. Accordingly, the Respondents had the right to employ replace-
ments to take over the strikers' jobs. There was here no threat or promise of benefit
designed to coerce the strikers into returning to work. Nor did the letters constitute
an integral part of a pattern of illegal opposition to the purposes of the Act nor do they
appear to have been designed to undermine the Union and to demonstrate that
the Respondents sought individual rather than collective bargaining. Under these
circumstances, therefore, the letters were not violative of the Act.18
C. The layoffs
1. Contentions with regard to the layoffs of February 4
The complaint alleges that the layoffs of February 4 were motivated by the Re-
spondents' desire to retaliate against their employees for joining or assisting the Union
and were designed to discourage their employees from organizing. In support of this
position, the General Counsel and the Union contend that Leiter was aware of the
Union's organizing activities at the plant as early as February 3, that on the day before
the layoffs the Respondents had applied to the Texas Employment Commission for
additional machine operators and had advertised in the local press for operators on
February 4, 5, and 6, and that the Respondents in mid-January had had a good re-
ception at the summer style showing in Dallas and had obtained a substantial order
from J. C. Penney. The Respondents' answer, as amended at the hearing, admits that
some employees were laid off on or about February 5, but denies that the layoffs were
illegally motivated. Indeed, the answer denies that the Respondents ever knew
of the Union's activities at the plant at the time of the layoffs. The Respondents
maintain that the layoffs were temporary in nature and were necessitated by economic
16 Sears Roebuck C Co , 109 NLRB 632, footnote 2.
17 d mnerican Rubber Products Corp v N L It B , 214 F 2d 47, 54 (C. A 7)
is Kansas 11i11niq Co N N L R B , 185 F 2d 413 (C A. 10) ; N L R B v The Jac/son
Press, Inc, 201 F 2d 341 (C A. 7) . The Texas Company, 93 NLRB 1358, 1360-1 ; and
McLean-Artansas Lambe, Company, Inc, 109 NLRB 1022
LEITER MANUFACTURING COMPANY 851
considerations, namely a shortage of raw materials, a lack of orders which required
immediate work by the employees, and a shortage of funds. In this connection
they point out that their bank refused them a loan on February 3. They contend
that the results of the summer style showing and the efforts of the Respondents'
salesmen to sell the Respondents' summer line in mid-January had been extremely
disappointing. They further claim that the request to the Texas Employment Com-
mission and the newspaper advertisements were not intended to obtain additional
help for the Respondents but, on the contrary, were aimed at securing future em-
ployees for Lorry Lee of Dallas, Inc., an entirely separate corporation in which
Leiter had an interest. Finally, they maintain that the J C Penney order was for
future delivery and that it was not feasible to work on it at that time.
2. Leiter's attitude toward the Union
Jack Maer and L. C. Fite, cutters, and Gladys Bass, a special machine opera-
tor, were hired with knowledge that they were members of the Union. Leiter stated
at the time that their membership in the Union made no difference to him.19 On
another occasion, when the subject of the Union came up, some employees indi-
cated that they did not desire to organize. Leiter informed them "if you girls
ever really want [the] union, I wouldn't be against it." 20 Maer also testified in the
State court that, early in December 1953, he discussed with Leiter "that it might be
a good idea to call the Union in and organize the shop" but that the project was not
carried out, apparently because Maer first wanted an opportunity to supervise the
sewing room (an opportunity which was given to him for a relatively brief period
in December 1953). Thus, Leiter had expressed himself prior to 1954 as either
receptive to the idea of unionization, or at least indifferent to it There is nothing
in the record suggesting that his attitude changed before the layoffs of February 4.21
3. Conclusions regarding the layoffs of February 4
There is no doubt that Leiter alone made the final decision to lay off the em-
ployees on February 4. But Leiter denied that, at that time, he knew that the
Union was attempting to organize the plant. Be that as it may, it will be assumed,
without deciding, that the General Counsel has proved Leiter's knowledge of the
Union's advent at the time the determination was made.
The timing of the layoffs so soon after Leiter may have obtained knowledge of
the Union's attempt to organize the plant is somewhat suspicious But in the
absence of union animus, such timing alone does not establish Leiter's illegal mo-
tive for the layoffs.22
A decision to order a mass layoff, virtually shutting down an entire plant, is a
drastic one, not ordinarily lightly made by any businessman. Even had Leiter known
of the Union's attempt to unionize the plant, I am satisfied that the record demon-
strates that he entertained no antagonism toward the Union at that time. It is there-
fore unreasonable to believe that the Union's advent was the motive for the layoffs.
And my conclusion in this respect would not be different even if I found the Re-
spondents' explanation for the layoffs unconvincing, for the absence of adequate
justification cannot here overcome the evidence of Leiter's lack of concern over
unionization of the employees. Accordingly, it is found that the General Counsel
has not proved a prima facie case with regard to the alleged discriminatory layoffs of
February 4 This being so, it is unnecessary to evaluate the voluminous testimony
regarding the Respondents' defense that the layoffs were caused by economic con-
siderations.
19 These findings are based upon the uncontradicted and credited testimony of Pass and
Leiter Shaer was hired about August 1952, Fite in March 1953, and Bass sometime before
January 1 1954
^' Tins finding is based upon the undenied and credited testimony of Letha Ballard, a
single needle operator and one of the, alleged discriminatees. Ballard placed the conversa-
tion as occuri ing "way back yonder when we had our old floorlady " I find that it took
place between August of September 1952 (when Ballard was hired) and December 1953
(when Shaer assumed supervision of the sewing loom)
21 While the tone of Leiter's discussion with Glickman on February 6, described below,
was not conciliatory, this cannot be related back to show his union animus on Febiuaiy 4
2J Tampa Times Company N N. L G' 11, 193 F 2d 582, 583 (C. A 5) , and N. L It B.
v. National Paper Company, et al , 216 F. 2d 859 (C A 5).
369028-50-vol 112 55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The layoff of Virgie Kent
Virgie Kent worked for the Respondents three times, the last time commencing
in September or October 1953 She was a sew pinker. Early on the morning of
Monday, February 1, Kent received word that her father, who lived in another
city, was ill. Kent asked a fellow employee to inform Pettit that she had to leave
town. Whether Pettit ever received the entire message is disputed. In any event,
Kent was absent from work until the morning of February 8. She was therefore
away during the height of the union activities and the layoffs of the other employees.
Kent reported for work on the morning of February 8 but was informed that there
was no work for her. Later that day she joined the Union and participated in the
picket line on February 10.
The complaint alleges that Kent was laid off on February 8 because she joined
or assisted the Union or engaged in other concerted activities, or in order to dis-
courage her from such conduct The General Counsel urges that Kent was laid
off for the same reason as the other employees, that is, because they attempted to
organize. The answer denies that Kent was laid off on February 8 and alleges, on
the contrary, that she voluntarily quit her job on January 29 and was not in the
Respondents' employ on February 8
I deem it unnecessary to decide whether or not Kent had voluntarily quit work
prior to February 8 1 am convinced and find that the refusal of the Respondents
to give work to Kent on February 8 was based primarily upon the same considerations
which caused the Respondents to lay off the other employees on February 4. As
the layoffs of February 4 were not proved to have been discriminatory, I conclude
that the General Counsel has failed to prove that the refusal to give work to Kent
on February 8 was discriminatory.
5. The strikers
The complaint alleges that the Respondents' employees went on strike on February
10, and that this strike was caused by the layoffs of February 4. The Respondents'
answer admits that the employees went on strike on February 10, categorizes the
strike as "unlawful," and alleges that it had as its purpose "forcing and coercing
Respondents to recognize the Union as the bargaining agent without an election and
certification or sufficient proof to establish that the Union was the lawful bargain-
ing agent contrary to the rights of Respondents and their employees." In their
brief, however, the Respondents take the position that the strike was designed to
protest only the layoffs, not the Respondents' refusal to recognize the Union. They
therefore now appear to be in substantial agreement with the General Counsel as
to the strike's cause.
It has been found above that the General Counsel has failed to prove that the
layoffs of February 4 were discriminatory. Moreover, as will appear hereafter, the
Respondents' refusal to recognize the Union as the bargaining agent for the em-
ployees prior to February 19 was not violative of the Act. Finally, no party main-
tains, nor can it be seriously contended, that Pettit's interrogation of employees was
an operative cause of the strike. Therefore, whether the purpose of the strike
was to protest the layoffs or to compel the Respondents to recognize the Union, it
was not an unfair labor practice strike, but an economic one. Nor was it an unlawful
strike On the contrary, it constituted a type of concerted activity which has uniform-
ly been recognized as protected by the Act.23
The Board has held that "the essence of a strike is the voluntary concerted with-
holding of labor requested by an employer " 24 Applying this test, who were the
strikers9 As the Respondents had not recalled the majority of the laid-off employees
to work prior to February 23, these employees were not strikers, but remained in the
status of laid-off employees. However, those employees who were requested by the
Respondents to return to work after the layoffs of February 4 but before the end of
the strike on February 23, and who refused to do so, were strikers Between the lay-
off of February 4 and the beginning of the strike on February 10, the Respondents
offered work to 11 employees named in the complaint. None of them reported
to work on February 10 or thereafter until the termination of the strike 25 In addition,
21'i'he shortness of notice given by strikers and their precipitate action does not render
then strike unpi otected N L R P v Cowles Pnblishinq Company, 214 F 2d 708 (C A 9)
'Coln,nbia Pictiucs Corpo,otion, et al, 82 NLRB 508, 577, enf denied 191 F 2d 217
(C A 9)
2-,These employees were Gladys Bass, Virginia Ferguson, Geneve Garcia, Dixie Harris.
Eva ][older, Saucy (Nanei) J[aitmez, Lottie McNally, Jesse Nevarez, Fannie Padgett,
Table Slaughter, and _Mildred Vinson. In addition, the Respondents recalled during this
LEITER MANUFACTURING COMPANY 853
two other employees named in the complaint, Adlean Crowley and Tommie Ray, re-
ceived letters from the Respondents on February 16 requesting them to report for work
on February 18. Neither complied. It is accordingly found that the 11 employees
named in the footnote became strikers on February 10, that Crowley and Ray became
strikers on February 18, and that all 13 continued as such until the end of the strike.
As economic strikers, they were entitled to reinstatement upon request, unless they
had been permanently replaced. The record shows that all 13 of these strikers
applied for reinstatement on February 23 and that all were reinstated on that day.
It is therefore clear that the Respondents complied with the requirements of the Act
insofar as the 13 strikers are concerned.
6 Delay in recalling certain employees
The complaint, as amended at the hearing, alleges that, although nine named em-
ployees applied for reinstatement on February 23, the Respondents delayed their re-
instatement because they joined or assisted the Union or to discourage them from such
conduct.26 The answer denies the allegations of the complaint and alleges that each
of these employees except Hope (Esperanza) Nanez and Emma White were rein-
stated within a day or two after February 23, that Nanez was reinstated when work
became available for her on Maich 4 and White was reinstated when work became
available for her on May 5, and that no work was available for either Nanez or
White prior to the respective dates on which they were reinstated.
With regard to employee Mable Slaughter, who was one of the strikers, the record
is clear that she was reinstated promptly upon her application on February 23. Hence
there was no delay in recalling her.
Employees Hattie Abrams, Ann Barnard, Bessie Brackenridge, Marie Davison,
Corry DeArment, and Era Schulenburg were reinstated on February 24, 25, or 26.
As the plant had been virtually shut down prior to the mass applications for rein-
statement on February 23, it may well be that unusual operational problems en-
countered in returning to full scale production might be the explanation for the slight
delay in reinstating these particular employees 27 In any event, there is no evidence
that the delay in recalling them was discriminatory.
Esperanza (Hope) Nanez was employed by the Respondents for 3 years prior to
her layoff. She was a trimmer and turner. The only other turner employed by
the Respondents at the time of the layoffs was Bessie Brackenridge. Nanez signed
a union application card on February 3. On February 4, Pettit requested Nanez
to report for work on February 5. Nanez did so, but was told that there was no work.
Nanez attended some union meetings and participated in the picket line at the
Respondents' plant. She reported for work at the close of the strike on February
23 and was rehired on March 4. Other than Brackenridge, who was recalled on
February 26, the Respondents did not employ any other turner between February 23,
when Nanez requested reinstatement, and March 4, when she was recalled.
Emma White began to work for the Respondents in February 1953 as a hand
finisher. The only other hand finisher employed by the Respondents on February
4 was Dixie Harris. White signed an application card for the Union on February 4.
When the other employees were laid off on February 4, Pettit requested White to re-
port for work on February 5. White did so but found there was no work for her.28
peiiod four employees not named in the complaint Julia Ortega , Theresa Ortiz, Consuelo
Saldana, and Pauline Torrez All four of these employees appear to have worked during
the strike .Moreover , the Respondents sent a letter to employee Jesse Evans requesting
her to report for work on February 18 She apparently did not comply As Evans is not
named in the complaint, I do not deem it necessary to determine whether or not she w,is
a stn ikei
"These euiplovees , and the dates on which they were allegedly belatedly iei etaIcil, ;ii
as follows • Hattie Abiains, Febi nary 2-1 , Ann Barnard , February 2-1 , Bessie iii ackeni idler,
Februar y 26 , Marie Dawson , I ebi nary 24 , Coiry DeAnnent, Februai y 26 hope (Espe; -
anza ) Nanei, March 4, Eia Schulenburg , February 25; Mable Slauglitei , February 25 a ^d
Emma W hite, Alav 2
Allegation, with respect to disci 1 n inatoiy delays in reinstating employees Adlean nni-
ley, Dixie Ilaiiis, Nancy (Nanez ) M,utinez Jesse Nevaiez , and Mildred Vinson, rlthougli
contained in the original complaint , were stricken during the hearing
r Utah Oil Refinuiq Coin puny, IOS 'NLRB 1392
2SIliiis testified that on Pcbius!y 9 she and White were asked by Pettit to return to
iioik on Febiuary 10 While hoiiever , testified that the Respondents did not ollei to
reinstate her at any time betiaccn February 4 and Nay 3 Pettit did not mention White
among those who were recalled to iiork beticeen Februaiy 4 and February 10 1 theretoic
conclude that Harris was mistaken and that White did not receive any offer of reinstate-
ment between February 4 and 10.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the end of the strike White reported for work on February 23, 24, and 25 , but was
not recalled at the time . She was rehired on May 3.29
The names of both Nanez and White appear in the Union 's letter of February 26,
requesting that they be reemployed immediately.
As it has not been shown that there was any work for either Nanez or White
prior to the respective dates on which they were recalled, and as neither of these
employees appears to have been any more active in support of the Union than
any of the others named in the complaint-a majority of whom were reinstated
within a few days after their applications of February 23-I conclude that the Gen-
eral Counsel has failed to prove that the Respondents discriminatorily delayed rein-
stating them.
7. Failure to recall certain employees
The complaint further alleges that seven named employees applied for reinstate-
ment on February 23 but that the Respondents have refused to recall them because
they joined or assisted the Union and in order to discourage them from engaging
in concerted activities . 30 The answer admits that the Union , by letter dated February
22, informed the Respondents that these seven employees would report for work on
February 23, but alleges that the Respondents did not reinstate them for various
reasons set forth therein.
With respect to employees Fay Beckham , Dominga Tovar , and Eula Mae Turner,
the answer alleges that they were not reinstated after February 23 because they
were temporary employees whose work had been completed . The Respondents con-
tend that on February 4 these employees were engaged in pulling ribbing and that
the need for pullers ceased to exist after February 23. The record indicates that
all 3 of these employees had pulled ribbing at one time . However, there is a con-
flict in the testimony as to whether Tovar and Turner were so engaged on February
4. The Respondents ' witnesses testified that they were: Tovar on the other hand
testified that on February 4 she was marking buttons and cutting tape , and Turner
testified that on that date she was employed as a presser.
The answer also alleges that employee Virgie Kent was not reemployed after
February 23 because she had already voluntarily terminated her employment on
January 29 . The General Counsel maintains that Kent had not terminated her
employment on January 29. The facts with respect to Kent have been discussed
above.
With regard to employees Norvella Knox and Aleene Lidster, the answer alleges
that they were not reemployed after February 23 because they were inefficient.
Both were single needle operators.
All of these employees had been laid off on February 4 and had applied for
reinstatement on February 23. The names of all of them appear in the Union's
letter of February 26 requesting the Respondents to reemploy them immediately.
None has been reinstated.
Even assuming , without deciding , that there was work which these employees were
competent to perform after February 23 and that the reasons given by the Respond-
ents for failing to reinstate them are unconvincing , I am not persuaded that the
General Counsel has proved that the failure to rehire them was based upon any
motive violative of the Act. None of these employees appears to have been particu-
larly active in the Union or outstanding in her efforts to organize the employees. I
therefore conclude that the General Counsel has failed to prove by a preponder-
ance of the evidence that these employees were discriminated against because of
their union activities.
Employee Mary Johnson began to work for the Respondents in August 1953 as a
single needle operator. After 2 days ' work in this assignment , Johnson was trans-
ferred to racking dresses . Her duties as rack girl included hanging the dresses and
checking them to see if they needed any repair . It was her responsibility to be
sure that garments did not pass unless they were ready to be shipped out. Johnson
continued in this capacity until sometime in January 1954 when she was transferred
back to her original job as single needle operator.
20 There is a conflict in the evidence as to whether White returned to work on May 2 or
3 Aa May 2 was a Sunday, I find that she was recalled on May 3
10 These employees ace Fay Peckham , Mary Johnson , Virgie Kent, Norvella Knox , Aleene
Lidstet, Dominga Tovar , and Eula Mae Turner The record also indicates that employee
Ethel Hardman applied for reinstatement on February 23 and has never been reinstated
However , as there is no allegation that the failure to rehire Hardman after February 23
was discriminatory, I do not consider that the Respondents ' failure to do so is here in issue.
LEITER MANUFACTURING COMPANY 855
Johnson signed an application for union membership on February 3. She was
active in persuading other employees, including Aleene Lidster and Adlean Crowley,
to sign similar applications. She also talked to employee Jesse Evans several times
on February 4 with regard to joining the Union. As has been found above, on
the afternoon of February 4, Pettit asked Evans who had the cards and Evans replied
that Johnson had them.
Johnson was laid off with the other employees on February 4. She returned
to the plant with the other employees on February 23 seeking reinstatement. Pettit
instructed her not to return until notified and that she would be called when needed.
Her name was among those included in the Union's letter of February 26 demand-
ing that certain employees be reinstated. She has never been recalled or told why
the Respondents have refused to reinstate her.
Leiter testified that after the Respondents obtained additional financing around
March 1, "We started working as fast and as hard as we could," presumably on the
Penney order (a small part of which was to be delivered beginning in March and
the bulk of which was due for delivery beginning in mid-May). Leiter further
testified that the Respondents then "tried to get all of the girls back that we possi-
bly could that knew how to make those cardigans." Sometime in March the Re-
spondents advertised in the newspapers for operators, and in the same month pur-
chased 10 additional single needle machines. On March 4 Pettit hired Paralee Cul-
lins and Bessie Adams as single needle operators. Altogether, during March and
April, the Respondents hired 28 new single needle operators-more than the total
number of single needle operators in the Respondents' employ on February 4. In
short, on and after March 4 there was available work of the type which Johnson
had been performing at the time of the layoffs.
Why, then, was she not recalled? The original answer alleges that the Respond-
ents did not reinstate Johnson on February 23 because she was permanently em-
ployed elsewhere. The record is clear that Johnson personally applied for work
at the Respondents' plant on February 23 and that the Union by letter on February
26 demanded her reinstatement. On February 26 Johnson went to work as a sew
pinker at Gordon Barron Company, a manufacturer of women's garments She
remained in Gordon Barron's employ until April 21. After that she obtained a
job at Sidran Sportswear, another garment manufacturer, and was working there
at the time of the hearing. In view of the fact that Johnson was not working else-
where on February 23 when she was denied reinstatement, the failure of the record
to indicate that the Respondents knew that Johnson was working elsewhere after
February 26, and the failure of any of the Respondents' witnesses to substantiate
the statement in the answer that the Respondents refused to recall Johnson be-
cause she had another job, I find no merit in this defense.
At the hearing, the Respondents amended the answer to add an additional reason
for their failure to rehire Johnson, namely, that Johnson was an "inefficient worker.
The evidence submitted by the Respondents to indicate Johnson's alleged inefficiency
consisted of the testimony of Bonnie Hagler, who had been Johnson's floorlady at
Gordon Barron, that although Johnson had been laid off at Gordon Barron for lack
of work, when work increased she was not recalled because she had not turned out
the kind of work that Gordon Barron desired. This testimony is not entitled to much
weight because it concerns Johnson's work after the Respondents refused to reinstate
her and further because Johnson's employment at Gordon Barron was that of sew
pinker, a task which appears to be different from any she performed while employed
by the Respondents. The Respondents further adduced evidence that, during the
last week of her employment at the Respondents' plant, Johnson failed to produce a
sufficient quantity to pay the 75 cents per hour minimum wage required by law, and
that it was necessary for the Respondents to add $2 29 to her pay as "make-up."
However, the Respondents' records indicate that there were many other single needle
operators whose makeup records were much worse than Johnson's and who were
nevertheless retained in the Respondents' employ. It is significant that Pettit, John-
son's immediate superior, did not testify with respect to Johnson's alleged inefficiency,
although she testified regarding the inefficiency of other employees, particularly Ethel
Hardman. Johnson testified without contradiction that she had never received any
complaint about her work from either Pettit or Leiter, that early in January Pettit
remarked to her: "I need you for an operator and I would like to have you. Your
work is good If you will stay on, I will guarantee you a rate of what you are getting,"
and that later in January Pettit told her: "I would like for you to do this operation
[pop stitching] if we have enough of it." In view of Johnson's 5 or 6 months of em-
ployment without any criticism of her work, Pettit's failure to testify regarding John-
son's alleged inefficiency, Pettit's compliments of Johnson's work shortly before the
layoffs of February 4, and the fact that Johnson's "make-up" record was not ex-
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cessive I conclude that the Respondents' failure to ieinstate Johnson was not due to
her alleged inefficiency.
Although not mentioned in the answer, the Respondents also contended at the
hearing that Johnson was not reinstated on February 23 because she had voluntarily
quit the Respondents' employ on February 4. The only evidence to support this
contention is the testimony of Dandridge that Johnson had voluntarily terminated her
employment on that date. Dandridge did not give any facts on which this conclusion
was based, and 1 do not find it credible. But even if Johnson had voluntarily quit
the Respondents' employ on February 4, I do not believe that the Respondents' re-
fusal to reinstate her on February 23 was based upon that reason. For the record
contains many instances in which employees had voluntarily quit and were never-
theless later rehired. Thus, Tovar was rehired on February 1, although she had quit
the previous year. And Ballard and Huggins were reinstated on February 4 and
again on February 23, although they had quit the Respondents' employ on February 3.
Accordingly, the Respondents' contention that Johnson was not rehired because she
had voluntarily quit on February 4 is rejected. In sum, it is found that the various
and shifting reasons given by the Respondents for their failure to reinstate John-
son-none of which were ever offered to Johnson at any time-are mere pretexts
and afterthoughts.
The lack of convincing seasons for the Respondents' failure to recall Johnson does
not alone prove that it was discriminatory. It is necessary to examine the record to
determine the Respondents' true motive. Pettit was not indifferent to the Union's
advent. As described above, she questioned several employees as to their having
signed a union card. In addition, she attempted to ascertain the identity of the em-
ployee who brought the cards into the plant, thus manifesting more than a casual in-
terest. The record reveals other indicia of her attitude. Before the State court,
Pettit admitted that when on February 10 Lidster asked her if she wanted to walk on
the picket line, she replied with a vulgar expression. On the same day, Pettit stated
of the pickets: "If there ever was Communism, this is taking place right now." 31 I
conclude that Pettit was antagonistic to the Union.
The picture presented is therefore of a floorlady with union animus who ques-
tioned the employees under her supervision and thereby ascertained that Johnson was
the person responsible for bringing the union cards into the plant. Thereafter, she
refused to reinstate Johnson, but instead when work became available hired new em-
ployees for a job Johnson was capable of handling-after first making sure that
the new employees had no "union connections"' Pettit never explained to Johnson
or to anyone else the basis for her conduct, although she testified before the State
court and in the instant hearing. The reasons given by the Respondents for Pettit's
actions are pretexts 32 and as hereafter found, the Respondents illegally refused to
bargain with the Union at about the same time that Johnson was refused reinstate-
ment. In view of these facts, I find that the Respondents' failure to reinstate John-
son on March 4 (the date on which Adams and Cullins were hired) was based upon
Johnson's known union activities Such discrimination discouraged membership in
the Union and hence violated Section 8 (a) (3) of the Act. It also interfered with,
restrained, and coerced the employees in the exercise of rights guaranteed by Section 7
of the Act, in violation of Section 8 (a) (1) of the Act. In reaching this conclu-
sion, I have considered the fact that Pettit promptly reinstated the majority of the
employees who applied for work on February 23, although most of them were listed
as union members in the Union's letter of February 6. But I am convinced and find
that Johnson was accorded special treatment because of Pettit's belief (based on what
Evans told her) that Johnson had introduced the union cards into the plant
D. The Respondents' refusal to recognize the Union
1. Contentions regarding the refusal to bargain
The complaint alleges that all production employees of the Respondents, excluding
patternmakers, designers, office clerical employees, and supervisors, constitute a
81 The finding of fact with respect to this remark is based upon the undenied and credited
testimony of Virgie Kent. In so conducting herself, Pettit was within her legal rights as
set forth in Section 8 (c) of the Act Nevertheless this remark indicates her union animus
In so finding, I do not mean to imply any criticism of Pettit ; I simply state her attitude
as a fact.
32 The failure to give a reason, or the giving of evasive, inconsistent, or contradictory
reasons by management for the discharge of an employee may be considered in determining
the real motive which actuated the discharge N L R B v Radcliffe, et at, 211 F 2d
309, 314 (C A 9).
LEITER MANUFACTURING COMPANY 857
unit appropriate for the purposes of collective bargaining, that on or about February
5 a majority of the employees in the said unit selected the Union as their bargaining
representative, that on or about February 6 the Union requested the Respondents
to bargain collectively with it as the representative of the employees in the said unit,
and that on February 6 and at all times since the Respondents have refused to do so.
The answer admits that the unit described in the complaint is appropriate, admits
that on or about February 6 the Union requested the Respondents to bargain col-
lectively with regard to the employees in the unit, and admits that it has not accorded
recognition to the Union as requested. It denies that the Union represented a
majority of the employees in the unit on February 6, and further denies that the
Respondents' refusal to recognize the Union was violative of the Act. At the hearing
the Respondents amended the answer to include an allegation that, by instituting
and prosecuting the State court action, the Union placed the Respondents under
such restraint, coercion, and pressure that the Respondents could not freely negotiate
with the Union, and that the Union was therefore estopped from claiming that an
illegal refusal to bargain had occurred.
2. The Union's majority status
The parties disagree as to whether or not the Union represented a majority of
employees in the appropriate unit on February 5. There is agreement between the
parties as to the eligibility and inclusion in the unit of 32 individuals. Cards signed
on or before February 5, by 20 of these individuals, were properly identified and
received in evidence. No cards were received in evidence with regard to the remaining
12 of these individuals.33 In addition, there are 19 employees whose inclusion in
the unit and eligibility are contested. I turn now to a consideration of the eligibility
of some of these contested employees.
The Respondent contends that Marie Pettit was a nonsupervisory employee on
February 5 and should be included in the unit. Maintaining that Pettit was a super-
visor within the meaning of the Act on that date, the General Counsel and the Union
contend that she should be excluded. She did not sign a union card. It has been
found above that Pettit was, at all times material, a supervisor within the meaning
of the Act. Accordingly, she will be excluded from the unit.
The Respondents would apparently exclude, and the General Counsel and the
Union would include, in the unit L. C. Fite and Jack Maer, cutters.34 Neither of
these employees signed union cards on or before February 5. As cutters are included
in the agreed appropriate unit, I shall include Fite and Maer.
The Respondents would exclude from the unit Mary Johnson, on the ground that
she had quit her employment with the Respondents on February 4. The Union
and the General Counsel, conversely, would include Johnson. Johnson's card, signed
on February 3, was received in evidence. It has been found above that Johnson did
not quit the employ of the Respondents at any time. She will, therefore, be included
in the unit.
Employees Letha Ballard and Treasure Huggins quit the Respondents' employ on
the afternoon of February 3. The Respondents would therefore exclude them from
the unit. The General Counsel and the Union seek their inclusion. A card signed
by Ballard on February 3 was received in evidence. Both Ballard and Huggins
returned to the Respondents' employ on the morning of February 4 and continued
to work for the Respondents until laid off that afternoon with the other employees.
They were reinstated upon their application on February 23 and 24, respectively.
As Ballard and Huggins were in the Respondents' employ on February 5, although
in a temporarily laid-off status, I shall include them in the unit.
The Respondents would exclude as temporary employees Judith Fulsom and Opal
Hamm. The General Counsel and the Union would include them. Union designa-
tion cards signed by Fulsom and Hamm on February 5 were received in evidence.
Fulsom and Hamm were employed as pressers a few days before February 4. When
the other employees were laid off on that day, these two pressers were told to report
for work on February 5. They did so, but there was no work for them. They both
worked on February 8. At the end of that working day they were discharged by
,13 Rulings were reserved with regard to the admissibility of the cards of Abrams, Davison,
Huggins, and Nanez A review of Nanez' card, her later resignation from the Union, and
her testimony with respect to both documents, convinces me that she understood what she
was doing when she signed the card I therefore rule that it is admissible I deem it
unnecessary to rule upon the admissibility of the cards of Abrams, Davison, and Huggins,
although I incline toward the view that they were not properly identified
34 The Respondents' brief describes the unit as : ". . . irrespective of the cutters. . . .
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pettit. There is no contention that their discharges on February 8 were violative of
the Act. It is significant that, at the time of hire, these employees were not told that
they were being taken on as temporary workers. Nor were pressers a category nor-
mally hired on a temporary basis at the Respondents' plant. I therefore find no merit
in the Respondents' contention that Fulsom and Hamm were temporary employees
on February 5. They will be included in the unit.
The answer alleges that employee Nancy (Nanez) Martinez was a temporary
employee; apparently the Respondents would therefore exclude her. The General
Counsel and the Union desire her inclusion. A union card signed by her on Febru-
ary 3 was received in evidence. Martinez was hired as a single needle operator in
January. She was laid off with the other employees on February 4. On February 9,
Pettit requested her to return to work the following day, but she failed to do so. As
found above, she was a striker. She was reinstated upon her application on Febru-
ary 23. There is no evidence to support the allegation that she was a temporary
employee. I will include her in the unit.
To the cards of the 20 employees whose inclusion in the unit and eligibility are
not contested have now been added those of Ballard, Fulsom, Hamm, Johnson, and
Martinez, making a total of 25. To the employees for whom no union cards signed
on or before February 5 were received in evidence have now been added the names
of Fite, Huggins, and Maer, making a total of 15. Other than Pettit, who has been
excluded from the unit, there remain 10 employees whose inclusion in the unit and
eligibility are still undetermined. For four of these, cards signed on or before Feb-
ruary 5 were received in evidence 35 Assuming facts most favorable to the Respond-
ents' contention, namely, that all four of the contested employees whose cards are in
evidence should be excluded and all 6 of the contested employees who did not sign
cards on or before February 5 36 should be included, the Union would still have had
a majority of 25 out of 46 employees in the appropriate unit. Without resolving the
unit placement of the remaining 10 contested employees, I therefore find that at all
times since February 5, 1954, the Union has been and now is the exclusive represent-
ative for purposes of collective bargaining of the employees in the unit described
above, by virtue of Section 9 (a) of the Act.
Virgie Kent, Jack Maer, and Fannie Padgett signed cards designating the Union
as their bargaining agent on February 8. In March, employees Bessie Adams and
Paralee Cullins designated the Union as their bargaining representative. In June a
number of employees who had previously designated the Union as their bargaining
agent resigned from the Union. Any loss of membership which occurred after the
Respondents' illegal refusal to bargain is attributable to the Respondents' unfair
labor practices hereinafter found, and cannot have any effect upon the Respondents'
duty to bargain with the Union.37
3. Sequence of events
On Saturday, February 6, Leiter was alone in the plant. Glickman came to the
plant, introduced himself to Leiter, and explained that he had a letter for him. He
then handed Leiter a letter dated February 5, which read, in part, as follows:
This is to advise you that an overwhelming majority of your employees, in
a bargaining unit of all production workers, have authorized the International
Ladies' Garment Workers' Union to represent them for purposes of collective
bargaining. The following employees have so authorized the Union to represent
them by signing authorization cards:
[Here follow the names and addresses of 32 individuals]
As you know, the Labor Management Relations Act, as amended, requires
that you recognize and bargain with the representative of a majority of your
employees in an appropriate unit. Therefore, you are hereby asked to extend
such recognition to this union as the representative of your production em-
ployees, and to agree to meet with union representatives for the purpose of
negotiating a collective bargaining contract. Please get in touch with the union
as promptly as possible to give us your reply to these requests
We are of course prepared to prove our majority representation, if such be
questioned, by any one of several methods. The simplest would be to submit
the authorization cards to a neutral third party for comparison with your pay-
roll records. Alternatively, we are prepared to enter into an agreement with
you for a speedy election conducted by the National Labor Relations Board.
Beckham, Gonzales, Tovar, and Turner
ae Dandridge, Kent, Padgett, Sinatra, Smithson, and Travis
87 Franks Bros. Company v. N. L. R. B., 321 U S 702
LEITER MANUFACTURING COMPANY 859
Our attorney informs us that the N. L. R. B. Regional Office in Fort Worth is
now set up to hold elections on very short notice, even in a day or two. We
would agree to such election, though of course we could not agree to your using
the N. L. R. B. procedures to delay for the purposes of unlawfully whittling
down the union's majority or committing other unfair labor practices 38
When Leiter had read the letter he said to Glickman: "This doesn't concern me,
these people don't work for me any more." Glickman asked: "Is that your position,
Mr. Leiter?" Leiter answered: "That is right, these people don't work for me any
more." Glickman then stated: "Well, if that is your position, there is nothing
further for me to say. You will be hearing from our attorney." Leiter repeated:
"Well, these people don't work for me any more. Do you know where I can get any
good operators?" Glickman again pointed out that in his opinion there was nothing
further for them to talk about and that Leiter would hear from the Union's attorney.
He added: "Don't you realize, Mr. Leiter, that a fellow in Waxahachie just had to pay
back pay to all of his employees for doing just what you are doing now?" Leiter
replied: "I don't know what you are talking about. These people don't work for me
any more." As he was about to leave, Glickman again told Leiter: "Well, you will
be hearing from our attorney." Leiter answered: "Well, I will turn it over to my
attorney also." 39
On February 9, the Respondents sent a letter to the Union which read in part
as follows:
This will acknowledge receipt of your letter of February 5 in which you advise
that you are claiming to be authorized to represent our production workers for
the purpose of collective bargaining.
Recognition of the International Ladies' Garment Workers' Union as a bar-
gaining unit will be accorded upon it being established in accordance with the
Labor Management Relations Act, 1947, that this Union is entitled to such
recognition.
On the same day, before it had received the above-described letter from the Re-
spondents, the Union sent the following telegram to the Respondents:
Your refusal to recognize and bargain with International Ladies' Garment
Workers' Union A. F. of L. the authorized bargaining agent of your production
employees is hereby protested. You were notified last week by letter of the
Union's authorization by an overwhelming majority of the workers. Since that
time others have joined the Union. We have not heard from you as to our
request, except that you denied employment to your workers because of their
union membership and participation. Therefore, the employees have no rea-
sonable alternative but to picket your establishment tomorrow morning in pro-
test of your action. Should you change your mind, please notify the Union by
telegram or telephone tonight. It is not too late to call off the picketing. We
are still agreeable to an immediate NLRB election and can file the petition for an
election tomorrow.
As described above, picketing of the Respondents' plant by the Union began on the
following morning, before the Union had received the Respondents' letter of February
9 quoted above. On February 11 the Union commenced the State court suit and
trial in that matter was held February 16 through 19. During the course of this
action, 27 employees personally identified their union cards and 8 additional cards
33 On the same day, the Union sent an identical telegram to Leiter, which Leiter received
later. The Union's attempts to deliver the message on February 5 had been unsuccessful.
39 The findings of facts with respect to this conversation are based upon the credited
testimony of Glickman Leiter gave a somewhat different version. Before the State
court, Leiter testified that, after he had read the lettei at Glickman's request, he told
Glickman lie was not too familiar with most of the names and that lie would have to
check the list, that Glickman stated "Well, we will have to have a contract signed now,
otherwise the sane thing will happen to you that happened to that fellow in Waxahachie.
So, if you don't you will hear from our attorneys," and that Leiter replied "I think that
is it very good idea I will turn it over to my attorney and then they will get together
and do what is necessary " In the instant proceedings, Leiter testified that lie told Glick-
man. "There are a lot of names here that I don't even recognize, I don't know who they
are," but that Glickman insisted that negotiations for a contract start immediately, "other-
wise, the same thing will happen to you that happened to somebody in Waxahachie If
you are not agreeable to negotiating a contiact, you will hear from our attorney " In
both instances, Leiter denied telling Glickman • "These are not my employees." Leiter did
not impress inc as a candid witness, His denial in this iespect is not credited.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were identified by others; all 35 were admitted in evidence On February 17, at the
suggestion of the judge, representatives of the parties conferred in an attempt to settle
the case. The Union's representatives proposed that a consent election be held
promptly, using the payroll period ending February 5 for eligibility Representatives
of the Respondents took the position that they had no evidence of the Union's ma-
jority and that they would not agree to a consent election because there were disputed
issues (including the payroll date for eligibility) which the Board should have an
opportunity to resolve at a hearing prior to an election. On February 22, after the
trial had ended, the Union wrote to the Respondents, in part, as follows:
The Union herewith suggests that you meet with representatives of the union
and the acting officers of the employees in your shop for the purpose of dis-
cussing some of the issues and perhaps arriving at amicable settlement of such
differences as might exist.
The union, of course, desires recognition as the bargaining agent of your em-
ployees and we hope to discuss at this conference a satisfactory means of ob-
taining this recognition. Eventually, we hope to sit down with you across the
table and bargain for a contract which will make for good working relations for
all concerned.
Late in February or early in March, Elihu E. Bewald, the Respondents' attorney,
had a telephone conversation with Charles J. Morris, the Union's lawyer. Bewald
informed Morris that the Respondents' position regarding recognition of the Union
had not changed since their letter of February 9. He also stated that he felt he "was
precluded from negotiating at all, with [the Union] because of the State court
case." 40 On April 2, the Union again wrote to the Respondents, in part, as follows:
Although you and your attorneys have indicated your refusal in the past either
to recognize International Ladies' Garment Workers' Union as bargaining agent
for your production employees or to meet with that union for purposes of negoti-
ating a contract, I am again requesting such recognition and a bargaining con-
ference.
The union majority has been amply and satisfactorily demonstrated beyond
any question on several occasions. Perhaps the most noticeable occasion was
when most of the women were present daily in the court room in the recent State
Court proceeding and by sworn testimony identified the authorization cards
upon which the union bases its right to represent the employees. The employees
were present for examination and cross-examination and certainly there can be
no doubt as to the union's majority status.
We cannot understand your refusal to recognize the union and bargain in
view of the overwhelming majority of your employees that have authorized the
union to represent them. We stand ready on short notice to arrange a meeting
with you and hope that you now will agree to a meeting.
On April 21 Meyer Perlstein, vice-president of the Union, wrote to the Respondents,
in part , as follows:
I expect to be in Dallas on Friday of this week and will remain over Saturday.
I would like to have a talk with a representative of your firm about the possi-
bilities of a reasonable arrangement between your firm and our Union. I am
convinced that there is sufficient ground for us to reach an understanding that
can serve as the basis for greater productivity and more effective planning for
management as well as a better and more secure income for the workers.
Thereafter, on April 24, Perlstein conferred with attorneys for the Respondents in
Dallas. The matters discussed in that conference pertained to subjects set forth in
the letters described above.
At the time of the hearing, the Respondents had not extended recognition to the
Union, nor had the Union filed a representation petition with the Board
4. The refusals of February 6, 9, and 17
It is clear that the employer may rightfully withhold recognition from a union
possessed of majority status and request an election to confirm its accreditation
if there is a bona fide doubt of a majority. On the other hand, an employer may
not refuse recognition in order to gain time within which to destroy the union's
40 The findings of fact with regard to this telephone conversation are based upon Bewald's
undenied and credited testimony.
LEITER MANUFACTURING COMPANY 861
majority through intimidation and coercion . 41 Here the Respondents on February
6, 9, and 17 insisted that the Union obtain a Board certification before they would
recognize its right to represent the employees . It was their right to do so, providing
that they were not motivated by a desire to gain time with which to undermine the
Union's majority.
Does the evidence warrant the inference that the Respondents ' refusals of recogni-
tion on February 6, 9, and 17 were motivated by bad faith ? The General Counsel
points to the identification of 35 union cards in the State court , and urges that after
these cards were identified and admitted in evidence , the Respondents could not
possibly have entertained a legitimate doubt of the Union 's majority . Of course,
in the face of this evidence , it is doubtful if Leiter could have honestly questioned
that a majority of the employees had signed up with the Union 42 But this is not the
same as saying that his insistence upon an election and certification was necessarily
based upon bad faith . For a certification gives certain stability to labor relations
which a card check cannot duplicate . First, the election "is a solemn and costly
occasion , conducted under safeguards to voluntary choice" as contrasted to signatures
on cards "in which the influences of mass psychology are present . not com-
parable to the privacy and independence of the voting booth ." 43 Second, the
certification promotes a sense of responsibility because it binds the employees for
at least a year, but this rule has no application to a collective -bargaining relationship
established other than as the result of an election .44 Finally, a certification further
affords protection to the negotiating parties against recognition strikes by rival unions
by virtue of the provisions of Section 8 (b) (4) (C ) of the Act.45 As the Board
has said: "If a certification is deemed desirable because of its special advantages, the
use of the ballot box is not too high a price to pay." 46 I conclude that the fact
that Leiter had good reason to believe that a majority of the employees had signed
union cards did not preclude him from lawfully demanding an election as a pre-
requisite to recognization , so long as he did not do so for the purpose of delay to gain
time to dissipate this majority.47
The following factors may be put forward as indicia of the Respondents ' bad faith
in refusing recognition on February 6, 9, and 17: ( 1) Pettit's interrogation of four
employees on February 4; (2) the tone of Leiter 's response to the original request for
recognition at his conference with Glickman on February 6; (3) Pettit 's interrogation
of two applicants for jobs on March 4; (4) her discriminatory rfeusal to recall John-
son on the same date ; ( 5) the Bewald -Morris conversation late in February or early in
March; and ( 6) the unilateral grant of paid holidays in April. The factors indicating
lack of bad faith on February 6, 9, and 17 are : ( 1) As previously found, between
August or September 1952 and December 1953, some employees told Leiter that they
did not desire to organize; ( 2) Leiter's indifference to organization prior to the lay-
offs of February 4; (3) of 15 employees recalled to work on February 8, 9, and 10
(after the Union's original demand for recognition ), 10 were known adherents
of the Union , (4) Maer, one of the witnesses who testified in the State court suit,
indicated that although he had previously signed a union card, he was then no longer
a member of the Union ; ( 5) the Respondents questioned in the instant proceeding
the eligibility of 13 of the employees whose cards were identified during the State
court trial , and may well have had doubts on February 6, 9, and 17 about the in-
clusion in the unit of some or all of these 13; ( 6) during the first week of the strike
d1 Ohio Ferro-Alloys Corporation V. N. L. R. B, 213 F 2d 646, 649 (C. A 6) ; N. L. R B.
v Southeastern Rubber Manufacturing Company, Inc, 213 F. 2d 11, 15 (C. A. 5) ; N L.
R B v Epstein, et at, 203 F 2d 482, 484 (C. A. 3) ; N. L R B v Jackson Press, at at.,
201 F 2d 541, 544 (C A. 7) ; N L R B. v Kobritz, et at., 193 F. 2d 8, 14 (C A. 1) ;
Joy Silk Mills, Inc V. N L. R B, 185 F. 2d 732, 741 (C. A, D C ) ; and North Electric
Manufacturing Company v. N. L R. B, 123 F. 2d 887, 889 (C. A 6)
d2 Under any theory of eligibility, the unit could not have contained more than 51
employees on February 5
da Mr Justice Frankfurter, speaking for the Supreme Court in Ray Brooks v. N. L R. B.,
348 U. •S 96 See also the language of the Court of Appeals for the District of Columbia
in Joy Silk Hills v. N. L. R. B , supra: "Another purpose [of an election] is to insure that
the employees may freely register their individual choices concerning representation."
44 Ray Brooks v N. L. R. B , supra, footnote 9 in the Court's opinion.
See General Box Company, 82 NLRB 678, especially the language on pages 681 and
682.
46 Ibul, at page 683
47 By the same token, the Respondents' refusal to sign a consent-election agreement is
not indicative of bad faith, particularly since there appears to have been a disagreement
between the parties regarding the eligibility payroll date to be used.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondents replaced less than half the strikers and during the second week no re-
placements were hired; (7) all strikers were promptly reinstated on February 23
despite the replacements and a majority of the union adherents who sought rein-
statement at that time were recalled within a few days, and (8) after receipt of the
Union's demand, no antiunion speeches were made or threats or coercive tactics en-
gaged in except the unfair labor practices committed late in February and early
March-3 weeks after the Union's claim of majority was first made. The Board
has held that where a union claims but is denied recognition as majority represent-
ative and the employer commits any form of unfair labor practice, it cannot be said
that ipso facto the employer thereby also violates Section 8 (a) (5) of the Act.48
Each case must depend upon its particular facts. Here, although the case is not free
from doubt, I am not convinced that the facts upon which an inference of bad faith
during this period can be bottomed (many of which occurred later) outweigh those
militating in favor of Leiter's innocence of any intent to stall in order to dissipate
the Union's majority. Accordingly, I conclude that the General Counsel has failed
to establish by a preponderance of the evidence that the Respondents' refusals to
recognize the Union on February 6, 9, and 17 constituted a violation of Section 8 (a)
(5) of the Act.49
5. The Bewald-Morris conversation
As has been described above, late in February or early in March Bewald told
Morris that he felt that he "was precluded from negotiating at all with [the Union]
because of the State court case." After this, other attempts by the Union to gain
recognition met with no success. The Respondents thus adamantly refused to recog-
nize the Union during the pendency of the State court case. They insisted upon set-
ting up as a condition precedent to recognition the disposal of the suit, a matter un-
related to the Union's majority status. It is well settled that an employer may not
lawfully demand, as a condition precedent to the performance of his statutory duty
to bargain, abandonment by employees of protected, concerted activities or surrender
of rights bestowed by the Act.50 And the suit in the State court clearly constituted such
a protected concerted activity.51 It follows that, late in February or early in March
1954, the Respondents refused, and at all times since have continued to refuse, to
bargain collectively with the Union as the exclusive representative of the employees
in the unit described above, in violation of Section 8 (a) (5) of the Act. I so find.
It is further found that such conduct interfered with, restrained, and coerced the
employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of
Section 8 (a) (1) of the Act.
6. The unilateral granting of paid holidays
The complaint further alleges that on or about April 27, the Respondents uni-
laterally instituted a system of paid holidays for the employees, in violation of Sec-
tion 8 (a) (1) and (5) of the Act. The answer alleges that the system of paid holi-
days was inaugurated prior to February 5 and denies that it was unlawful.
In May or June 1953, the Respondents posted on their bulletin board an announce-
ment setting forth a plan for vacations. At that time the question of paid holidays
was raised. Leiter explained to the employees that it would be impossible for the
Respondents to grant them paid holidays that year, but promised to do so the next
year.52 He did not refer to any specific holidays In April 1954 another notice was
posted on the bulletin board which announced that the employees would be paid for
Independence Day, Thanksgiving, Christmas, and New Year's.
The Respondents' announcement in April of the granting of four paid holidays
to the employees was accomplished without prior notice to or consultation with
the Union As the Respondents had already refused recognition to the Union upon
improper grounds in violation of their statutory duty, this action constituted a further
violation of Section 8 (a) (1) and (5) of the Act-unless the commitment made
by Leiter to the employees the previous year is a defense.
Leiter's original promise regarding the paid holidays had neither identified the
particular holidays he had in mind nor stated how many there would be. This is
as The Walmac Company (Radio Station KMAC cC FM Station KISS), 106 NLRB 1355.
49Compare The Walmac Company (Radio Station KMAC R FM Station KISS), supra,
and Blue Flash Express, Inc, 1 09 NLRB 591
BON L R B. v Pechesir Lozenge Co, Inc, 209 F. 2d 393, 403-4 (C. A 2), and cases
there cited
m N L R R v Moss Planing Mill Company, 206 F. 2d 557, 559-60 (C. A. 4).
sa This finding of fact is based upon Leiter's testimony, corroborated by that of Mable
Slaughter and Emma White, witnesses for the General Counsel.
LEITER MANUFACTURING COMPANY 863
therefore not a case in which the commitment had jelled into final form so that
nothing remained to be done except to put it into effect when the specified time
arrived.53 Having left the identity and number of paid holidays for further deter-
mination, the Respondents were obliged to consult the Union before such determina-
tions were made. Their failure to do so after insisting upon disposal of the State
suit as a condition for recognition constitutes an additional violation of Section 8
( a) (1) and (5) of the Act.
7. The Respondents ' defense of estoppel
In the answer , as amended at the hearing , the Respondents seek to defend against
the allegation of refusal to bargain by pointing to the Union 's prosecution of the
State court suit. Their position is that such conduct on the Union 's part made free
negotiation between the parties an impossibility . But, as has been pointed out above,
in instituting and prosecuting the State court action , the employees ( through their
bargaining agent ) were engaged in concerted activities for their "mutual aid or
protection ," within the meaning of Section 7 of the Act. Such activities, being
cloaked with the sanction of the law , cannot be transformed into a vehicle for im-
munizing the Respondents against responsibility for their own violations of the
Act. Moreover, I am convinced and find that , contrary to the allegations of the
answer, the Union 's conduct did not in fact create an atmosphere which precluded
recognition of the Union On the contrary, it was the Respondents ' intransigent
insistence upon the Union 's abandonment of the State court suit which caused the
impasse.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OP LAW
1. International Ladies Garment Workers' Union, AFL, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Mary
Johnson, thereby discouraging membership in the above-named labor organization,
the Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
3. All production employees of the Respondents, exclusive of patternmakers,
designers, office clerical employees, and supervisors, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
4. International Ladies Garment Workers' Union, AFL, was on February 5,
1954, and at all times since has been, the exclusive representative within the mean-
ing of Section 9 (a) of the Act of all employees in the aforesaid unit for the purposes
of collective bargaining.
5. By refusing to bargain collectively with International Ladies Garment Work-
ers' Union, AFL, as the exclusive bargaining representative of the employees in the
aforesaid unit, the Respondents have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
6. By such conduct, and by other acts interfering with, restraining, and coerc-
ing their employees in the exercise of rights guaranteed in Section 7 of the Act, the
Respondents have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
7. The above-described unfair labor practices tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce and constitute un-
fair labor practices affecting commerce within the meaning of Section 2 (6) and
(7) of the Act.
8. The Respondents have not discriminated with regard to the hire and tenure of
employment of any of the employees named in the complaint other than Mary John-
son
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, I make the following:
RECOMMENDATIONS
It has been found that the Respondents interfered with, restrained, and coerced
their employees , discouraged membership in the Union by discriminatorily refus-
63 Had such been the case , there might have been an obligation imposed by Section 8 (a)
(5) of the Act not to renege on the promise That, however, need not be decided here.
See Armstrong Cork Company v N L. R B, 211 F 2d 843, 847 ( C. A 5). Compare
The Standard Transformer Company, 97 NLRB 669, 684-5, enfd. 202 F. 2d 846 ( C. A. 6).
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to reinstate employee Mary Johnson, refused to bargain collectively with the
Union, and put into effect changes in working conditions without prior consultation
with the Union. Because of the underlying purpose and tendency of this unlaw-
ful conduct, I conclude that there exists danger that the Respondents will in the
future commit other unfair labor practices. Accordingly, in order to effectuate the
purposes of the Act, it will be recommended that the Respondents cease and desist
not only from the unfair labor practices found but also from in any other manner
infringing upon the rights guaranteed in Section 7 of the Act.
Affirmatively, it will be recommended that the Respondents offer to Mary John-
son immediate reinstatement to her former or a substantially equivalent position,
without prejudice to her seniority and other rights and privileges previously enjoyed,
and make her whole for any loss of earnings she may have suffered because of the
discrimination against her , by paying to her a sum of money equal to the amount
she normally would have earned from March 4, 1954, the date of the discrimina-
tion against her, to the date of the offer of reinstatement , less her net earnings dur-
ing the said period. The back pay provided for herein shall be computed on a
quarterly basis in the manner established by the Board; earnings in one particular
quarter shall have no effect on the back-pay liability for any other period. It will
further be recommended that the Respondents bargain collectively with the Union,
upon demand , as the representative of the employees in the appropriate unit, and
embody any understanding reached in a signed agreement.
[Recommended Order omitted from publication.]
Disabled American Veterans , Inc. (Idento Tag Operation) 1 and
International Brotherhood of Pulp , Sulphite & Paper Mill
Workers, A. F. L., ]Petitioner. Case No. 9-RC-92410. May 23,
1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act a hearing was held before Richard C. Curry, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
The Employer has requested leave to present oral argument before
the Board. The Employer's motion is hereby denied as the record,
including the briefs filed by the parties, adequately presents the issues
and positions of the parties.
1. The Disabled American Veterans, hereafter called DAV, is a
membership corporation operating under a charter granted by the
Congress of the United States in 1932. Its membership is, in gen-
eral terms, limited to persons wounded or disabled in wartime line of
duty. The organization consists of about 187,000 members in about
1,800 local chapters throughout almost all of the States.
A primary purpose of the DAV is to advance the interests and work
for the betterment of all disabled veterans and their dependents. This
purpose is furthered in three main ways : (1) through representation
of any veteran or his dependents in the presentation of claims for
benefits under the laws of the United States before the Veterans Ad-
The name of the Employer appears as amended at the hearing
112 NLRB No. 116.