Mac Smith Garment Co, Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1951

97 N.L.R.B. 842 (N.L.R.B. 1951)

842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating in regard to the hire and tenure of employment of Eva
Smith and Neilen Garnes, thereby discouraging membership in the Union, the
Respondent has engaged in, and is engaging in, unfair labor practices, within
the meaning of Section 8 (a) (3) of the Act.
3. By discriminating in regard to the hire and tenure of the 16 strikers
named in the complaint, the Respondent has engaged in, and is engaging in,
unfair labor practices, within the meaning of Section 8 (a) (3) of the Act.
4. By interrogating its employees regarding their union membership, activ-
ities, and sympathies, by threatening its employees with discharge if they did
not cross the picket line established by their coworkers, by threatening to close
the Grade plant if the Union successfully organized the employees, by granting
wage increases and announcing larger insurance coverage to influence the em-
ployees' votes at a Board election and for the further purpose of forestalling
the Union's organizational drive, thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act, the Respondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
5. The unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
MAC SMITH GARMENT COMPANY, INC. awl AMALGAMATED CLO'rmxo
WORKERS of AMERICA, CIO. Case No. 15-CA-270. December
29, 1951
Decision and Order
On March 22, 1951, Trial Examiner John Eadie issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, and supporting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in the
case,2 and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modifications.
1. The complaint alleged and the Trial Examiner found that the
Respondent had refused to bargain with the charging Union in vio-
lation of Section 8 (a) (5) of the Act. However, although the evi-
'i Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three -member panel [Members Houston , Reynolds, and
Styles].
2 The Respondent 's request for oral argument is denied , because the record and briefs, in
our opinion , adequately present the issues and positions of the parties.
97 NLRB No. 124.
MAC SMITH GARMENT COMPANY, INC. 843
dente in this case would, under ordinary circumstances, warrant the
Trial Examiner's conclusion, a recent amendment of the Act 3 re-
quires that we dismiss the Section 8 (a) (5) allegations of this com-
plaint. The Union, which at all relevant times has been affiliated
with the CIO, was certified by the Board as majority representative of
the Respondent's employees following a Board conducted election held
on June 15, 1949. At that time, although the local was in compliance
with the Section 9 (f), (g), and (h) filing requirements of the Act,
the parent organization, the CIO, was not. For the reasons stated'
in the recent Advertiser case,4 the Act as now amended exonerates the
Respondent's "failure to honor" a certificate which the Board was
without power to issue.
2. We agree with the Trial Examiner's finding that when the Re-
spondent reopened its plant in March 1950, it discriminatorily refused
to reemploy the 11 individuals named in the Intermediate Report, on
the dates stated therein, and thereby violated Section 8 (a) (3) and
8 (a) (1) of the Act.
By a preponderance of the evidence the General Counsel established
a strong prima facie case indicating that in rejecting the 11 individuals
in question the Respondent was motivated by antiunion considerations.
As is detailed in the Intermediate Report, the record clearly establishes
that all 11 were active adherents of the Union, and the Respondent
was aware of this. Included in the group were the president and
vice president of the Union; others were on the union bargaining
committee that had met with the Respondent; others had worn union
buttons in the plant and had openly solicited on behalf of the Union.
Significantly, the only known union adherents who were called back
to work were those who had signed a back-to-work petition stating
that the employees were willing to work without a union. None of the
11 discriminatees had signed that petition; some were most vigorous
in their refusal to do so.
Against this prima facie case, the Respondent sought to explain each
individual refusal of employment on nondiscriminatory grounds.
We have examined the evidence elicited by the Respondent in support
of its defenses with great care and find-as did the Trial Examiner-
that these defenses are obvious pretenses and afterthoughts, and not
supported by substantial evidence. Typical of these is the Respond-
ent's defense, asserted as to several of the individuals involved, that
the person *as not rehired because of her inability to get along with
her fellow employees. Yet many of these individuals had had no,
record of disagreement with other employees; indeed their popularity
was attested to by their election to offices in the Union. According
' Public Law 189, 82nd Cong., Chapt. 534 , 1st Sess. Approved October 22, 1951.
4 The Advertiser Company, Inc., 97 NLRB 604
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Plant Superintendent O'Neal's testimony, three criteria were used
to determine which of the laid-off employees would be recalled: (1)
production; (2) dependability; and (3) versatility. Yet the Re-
spondent introduced no evidence, nor does it even appear to claim,
that any of the discriminatees were lacking in production or depend-
o.bility, and while the Respondent did assert that two of the dis-
rriminatees-Byrd and Frances Reid-lacked versatility, we are satis-
fled, as was the Trial Examiner, that the record does not support the
Respondent's contention in this regard. The Respondent's true cri-
teria, we are convinced, are revealed in O'Neal's statement to employee
Lola Early. She had asked him if the Respondent had put its best
operators, back to work. He replied, "No, we put the ones back to
work that fit best into our little organization."
Nor do we find persuasive the fact that certain of the discriminatees
were ultimately recalled. In this regard we believe that the record
supports the General Counsel's assertion that the Respondent initially
refused employment to all the discriminatees in order to destroy the
Union, and that once it believed it had accomplished that purpose it
was willing to consider certain of these individuals on their merits.
Under all the circumstances, we conclude that Respondent's refusal
to reemploy the 11 individuals in question was solely motivated by
antiunion considerations6 in violation of Section 8 (a) (3) and 8
,(a) (1) of the Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Mac Smith
Garment Company, Inc., Gulfport, Mississippi, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Clothing Workers
,of America, C. I. 0., or any other labor organization of its employees
by discriminatorily refusing to reinstate any of its employees, or
by discriminating in regard to their hire or tenure of employment
,or any term or condition of employment.
8 We do not share the Trial Examiner 's doubt with respect to the cases of Frances Reid,
nor'adopt the Trial Examiner 's theory as to the Respondent ' s responsibility to disentangle
these cases from the others . In both cases the prima facie case is as strong as it is with
respect to the others , and in both cases the Respondent's defense is as much without
merit. In the case of Frances Reid the Respondent apparently suggests that it was her
lack of versatility that motivated its action . Yet Gatewood , the Respondent 's official who
interviewed her on her request for reemployment , himself denied raising this issue. As
to Katherine Reid, the Respondent 's defense that she was not recalled in March because
she was unwilling to work overtime is not supported by the record . Apart from the
fact that Reid had worked overtime in the past there is no showing that the problem
,of overtime was in any way a consideration in March 1950 when the plant was operating
at less than capacity.
MAC SMITH GARMENT COMPANY, INC . 845
(b) In any other manner interfering with, restraining, or coercing
its employees in the right to self-organization, to form labor organ-
izations, to join or assist the above-named labor organization or any
other labor organization, to bargain collectively through represent-
atives of their-own choosing, and to engage in collective bargaining
or other mutual aid or protection, or to refrain from any or all
of such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8 (a) (3) of
the Act, as guaranteed in Section 7 thereof.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Offer to Bertie Alphin, Clara Benvenutti, Fredna Byrd, John
W. Estapa, Lola Ealy, Atlanta Magee, Helen N. Morgan, Frances
Reid, and Ausalia Shibla immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to
their seniority-or other rights and privileges and make whole each
of said employees, and also Myrtle Perronne and Katherine Reid,
in the manner set forth in the Intermediate Report, attached hereto,
in the section entitled "The Remedy."
(b) Post at its plant in Gulfport, Mississippi, copies of the notice
attached hereto and marked "Appendix A." Copies of such notice,
to be furnished by the Regional Director for the Fifteenth Region,
shall, after being duly signed by the Respondent's authorized repre-
sentative ' be posted by the Respondent immediately upon receipt
thereof, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for the Fifteenth Region, in
writing, within ten (10) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed, insofar as it alleges that the Respondent violated Section
8 (a) (5) of the Act by refusing to bargain collectively with the Union.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Relations Board,
and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
846 MAC SMITH GARMENT COMPANY, INC.
to form labor organizations, to join or assist AMALGAMATED CLOTH-
ING WORKERS OF AMERICA, C. I. 0., or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities, except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination.
Bertie Alphin Atlanta Magee
Clara Benvenutti Helen N. Morgan
Fredna Byrd Frances Reid
John W. Estapa Ausalia Shibla
Lola Ealy
WE WILL make whole the following employees for any loss of
pay suffered as a result of the discrimination.
Myrtle Perronne Katherine Reid
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization.
MAC SMITH GARMENT COMPANY, INC.,
Employer.
f)ated------------- By ----------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon an amended charge duly filed by Amalgated Clothing Workers of America,
'C. I. 0., herein called the Union, the General Counsel of the National Labor
Relations Board, respectively called herein the General Counsel and the Board,
by the Regional Director for the Fifteenth Region (New Orleans, Louisiana),
issued a complaint dated October 31, 1950 , against Mac Smith Garment Company,
Inc., herein called the Respondent, alleging that the Respondent has engaged
DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD 847
in, and is engaging in, unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
With respect to the unfair labor practices, the complaint alleges (1) that
on or about November 22, 1949, the Respondent closed its plant and laid off its
employees ; (2) that Respondent reopened its plant on or about March 24, 1950,
and since that date has failed and refused to reinstate Bertie Alphin, Clara
Benvenutti, Fredna Byrd, Dean Evans Collins, John W. Estapa, Lola Ealy,
Atlanta Magee, Helen N. Moran, Myrtle Perronne, Frances Reid, Katherine Reid,
Ausalia Shibla, and Lora Toney ; (3) that since on or about March 24, 1950, the
Respondent failed and refused to reinstate Dean Evans Collins until August 14,
1950, and Myrtle Perronne until September 20, 1950; (4) that Respondent failed
and refused to reinstate said employees for the reason -that they joined or
assisted the Union or engaged in other concerted activities for the purposes of
collective bargaining or other mutual aid and protection; (5) that on or about
June 15, 1949, a majority of the employees in an appropriate unit designated
and selected the Union as their collective bargaining representative in an
election conducted by the Board; (6) that the Respondent on or about December
12, 1949, and at. all times thereafter refused to bargain collectively with the
Union; and (7) that on or about March 24, 1950, and at all times thereafter
unilaterally recalled laid-off employees and revised wage rates and structures
without consulting or bargaining with the Union.
The Respondent filed an answer in which it denied the commission of any
unfair labor practice.
Pursuant to notice, a hearing was held at Gulfport, Mississippi, from Novem-
her 28 to December 8, 1950, inclusive, before the undersigned Trial Examiner.
All of the parties were represented by counsel. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing
on the issues was afforded all parties. At the close of the General Counsel's case,
the Respondent made separate motions to dismiss as to each individual named
in the complaint, and moved to dismiss the complaint insofar as it alleged a
refusal to bargain. The motions to dismiss with respect to Dean Evans
Collins and Lora Toney were granted without objection. All other motions
to dismiss were denied. At the close of the whole case, the Respondent renewed
its motions to dismiss the complaint. Ruling on the motions was reserved. The
motions to dismiss are disposed of as hereinafter indicated. The General
Counsel moved to conform the pleadings to the proof, as to names, dates, and
other minor variances. The motion was granted without objection.
None of the parties presented oral argument at the conclusion of the case.
The General Counsel, the Respondent, and the Union have filed briefs with
the Trial Examiner.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Mississippi corporation with its office and place of
business located in Gulfport, Mississippi, where it is engaged in the manu-
facture of men's cotton dress shirts. The Respondent is a subsidiary of
Harris-Smith, Inc., a New York corporation.
During the year ending October 1, 1950, Respondent received at its Gulfport
plant raw materials consisting of cotton piece goods, thread, buttons, boxes,
848 DECISIONS OF NATIONAL LABOR RELATIONS BQARD
and cartons valued in excess of $75,000, from points outside the State of Missis-
sippi. Said raw materials are shipped to the Respondent by Harris-Smith, Inc.,
either directly or through various piece goods concerns.
During the same period of time, the Respondent' manufactured and sold
finished products valued in excess of $300,000, approximately 95 percent of which
was shipped to points outside the 'State of Mississippi. The shipments to cus-
tomers were made by the Respondent on behalf of Harris-Smith, Inc.
Before the plant was closed in November 1949, the Respondent employed
approximately 640 persons.
II. THE ORGANIZATION INVOLVED
Amalgamated Clothing Workers, of America, C. I. 0., is a labor organization,
which admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background; sequence of events
For about 4 years before 1949, United Garment Workers of America, AFL,
herein called the United, was the collective bargaining agent of the Respondent's.
employees. On May 22, 1948, the Respondent and the United entered into a
contract which contained a union-shop clause. During the early part of 1949, the'
Union began organizing the Respondent's employees. An election among the
employees was scheduled by the Board for June 15, 1949. On about June 12, the
officers of the local union of the United caused the following letter to be dis-
tributed to the employees :
EMPLOYEES OF MAC SMITH GARMENT CO.,
Gulfport, Miss.
DEAR FRIENDS AND FELLOW WORKERS : On December 13th, 1948 a large
majority of you voted for the undersigned to represent you with the com-
pany and to fight for a NEW DEAL for the Mac Smith employees.
Upon taking over our new positions in the AFL Local No. 172 we found
that the records were not in order, and that apparently much of the money
that had been taken in by the local union had been mis-handled.
We found that when we went into the company office to settle grievances
that the AFL representative almost always favored the company, and as
a result grievances could not be settled in favor of the employees. We can
not fight the company and the AFL to and ever hope to gain anything.
We are tired of being kicked around and sold short by the AFL repre-
sentatives. Four years is enough for us. If we are to make any real gains
in the years to come we must change Unions.
We made a thorough study of CIO shirt factories in the State and found
they have a better deal than we have here at Mac Smith's. Under CIO
contracts right here in our back yard, other shirt factory employees have
a contract that really works, they have insurance paid for by the company,
four hours reporting time, pay for machine breakdown, 75 cents per hour for
production pay, and many other benefits. After four years under AFL we
'do not have these things.
We found further that the ACWA-CIO is THE UNION in the garment
industry. For every shirt factory in the AFL there are 100 in the CIO.
ACWA-CIO has a membership of over 375,000 compared to less than 35,000
in the UGWA-AFL. The CIO record speaks for itself.
MAC SMITH GARMENT COMPANY, INC . 849
Therefore we the undersigned officers of AFL LocalUnion No. 172 urge you
to help get rid of this mess that we have had for the last four years. You
know well the sort of deal we have had. We do not want any more of it.
We urge every one of you to vote for the ACWA-CIO next Wednesday June
15th.
PLEASE PASS THIS LETTER ON TO YOUR FELLOW WORKERS.
Yours for a NEW DEAL and a 100% vote for ACWA-CIO.
(S) HAYWARD LADNER,
Business Agent.
(S) CLARA BENVENUTTI,
President.
(S) MYRTLE PERRONNE,
Vice President.
(s)
(s)
(S)
GLADYS CANTRELL,
Trustee.
LOLA EALY,
Trustee.
LOIIISE JAMES,
Trustee.
A copy of the letter was mailed to the Respondent. At about the same time,
the United's officers became officers of the local of the Union.'
At the election conducted by the Board on June 15, the Union received 331
votes as against 210 for the United. The Union was certified by the Board
as the collective bargaining agent of Respondent's embloyees on June 23, 1949.
An election for authorization of a union shop was conducted by the Board on
July 26, 1949. The Union won this election by a vote of 419 to 123.
The Respondent and the Union held their first bargaining conference at
Gulfport on August 4, 1949. David Cottrell, Respondent's attorney, Joseph
Smith, president of Respondent, Robert Garner, plant manager, and Glen
O'Neal, superintendent of stitching and pressing, represented the Respondent.
The Union was represented by its attorney, Jerome Cooper, Ed Blair, inter-
national representative, Otis Daggett, international representative, and a negoti-
ating committee of the employees 2 The meeting lasted several hours and was
terminated when Cooper became ill. Other bargaining conferences were held
at Gulfport on October 15 and 16. At these conferences Gladys Dickason, vice
president of the Union, took the place of Cooper as the principal negotiator.
The parties reached agreement on all but a few issues at the conclusion of the
October 16 meeting.
The next bargaining conference was held on November 7 in New York City
at the office of Daniel Ross, Respondent's New York attorney. Ross and Smith
represented the Respondent, and Dickason represented the Union. At this
meeting Smith told Dickason that the Respondent had lost its main customer,
Sears-Roebuck ; that the plant probably would have to be closed down unless
he was successful in negotiations for work with another firm ; and that under
the circumstances there was no need to continue discussions for a collective
bargaining agreement.
The plant was closed during the latter part of November 1949. Smith called
Dickason on December 6 and told her that he had been unable to obtain work for
the plant. Dickason was unable to get Smith to agree to a date for the resump-
a Ladner, business agent for the United, was not an employee of the Respondent.
R The Respondent's plant had five departments, cutting, sewing, pressing, boxing, and
shipping. The departments were divided into sections. The members of the bargaining
committee were selected by the employees of the various sections. The comm5ttee con-
sisted of employees Clara Benvenutti, Lola Ealy, Helen Moran, Bertie Alphin, Ausalia
Shibla, Myrtle Perronne, Frances Reid, Katherine Reid, Gladys Cantrell, Louise James,
Inez Page, Raymond Reaux, Frances Miller, Anna Jones, Robert Goodson, and Hilda
(Moran) Messer Respondent states in its brief that Paul Gaidrosich, a cutter in the
cutting department, also was elected to the bargaining committee. The evidence discloses
that this employee was an unsuccessful contestant in the election of two representatives
to the committee in that department.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of negotiations . In this connection Smith stated that he did not "see
any sense" in bargaining for a contract since the plant was closed and he
did not know when it would reopen.
On or about December 17 , Cottrell , Respondent's Gulfport attorney, sub-
mitted a proposed contract to Blair . This proposal retracted a number of points
previously agreed upon at the October bargaining conferences.
During January 1950, the following petition , addressed to Smith , was circu-
lated by some employees in Gulfport :
We, the undersigned petitioners , do respectfully petition the manage-
ment of Mac-Smith Garment Factory to begin operations as soon as possible.
We, the undersigned , are willing to.return to work with no union contract.
We are also willing to return to work with a Union open shop.
The petition , containing aproximately 500 alleged signatures , was mailed to^
Smith in New York. He received it on January 30. A copy of the petition was
also presented to Plant Manager Garner.
On February 6, 1950 , Dickason and Charles English , a representative of the
Union, met with Smith and Ross at the latter 's office in New York. Dickason,
attempted to discuss contract provisions , but Smith and Ross stated that they
'did not "see any reason for discussing any points of the agreement " since-
they did not know when the plant would reopen . At this meeting Dickason.
questioned Smith about the petition to reopen the plant and about Cottrell's
proposal of December 17.
Smith called Dickason on March 3 and told her that the plant soon would be
reopened on a limited basis. Dickason stated that a conference should be held
to discuss the contract and the recall of employees . No date for such a meeting:
was agreed upon. On March 6 Dickason wrote the following letter to Smith :
Perhaps you will already have called me before you receive this letter,
but just in case you are not able to find time before going to Pennsylvania,
I think it is important for me to write you about one item in the story
which appeared in-the Gulfport-Biloxi Daily Herald Saturday , March 4,
1950.
The following statement is made:
"Within the,next ten 10 days the company will contact prospective
employees to fill the 320 jobs _ that will be available , it was announced."
The rumors are already flying thick and fast in Gulfport that only people
not identified with the Amalgamated Clothing Workers will be re-called
to work.
I am sure that the company will be aware that this is a violation of the
law and has no intention of following any such program.
,In order to avoid any misunderstanding on this matter, howeber, I think
it is important that we should discuss this situation before notices are sent
out to the workers.
I shall plan my time to be available at any time that is convenient to you
and shall be glad to plan to go to Mississippi if you think it necessary in
order to conclude any outstanding matters.
A bargaining conference was held at Ross' office on March 10. Dickason and
her assistant , Milton Allen , appeared for the Union . Smith and Ross represented
the Respondent . Dickason requested information concerning the rehiring of
employees . She remarked that during their 'telephone conversation on March
3 Smith had told her that the Respondent expected to call back the employees
in "Unit 3" and fill vacancies with employees from "Unit 1 ." She reminded
MAC SMITH GARMENT COMPANY , INC. 851
them that the Respondent had agreed to a "seniority clause" at the October 16
conference at Gulfport . Smith and Ross stated , in substance , that the Re-
spondent was "not going to hire back anybody who could not make the mini-
mum" and that employees would be rehired "on the basis of production, at-
tendance and quality ." Dickason pointed out that "hiring back on that basis
was subject to possible discrimination ." After some argument on this point,
the Respondent reached Garner by telephone at Gulfport and permitted Dicka-
son to speak to him . She suggested to Garner that Blair visit the plant and be
allowed to look at the records of the various employees in order "to provide
substantiation" for the Respondent 's method in the recall of employees . Garner,
in effect , denied the request by stating that he did not have time to go over
the records with Blair . After this phone call , Dickason inquired about wage
rates to be paid. Smith replied that new piece rates had been prepared. She
stated that the Union had been certified to represent the employees and that
she wanted to see the new rates in order to ascertain if they were in accord
with the agreement reached on wages at the October 16 meeting in Gulfport,
Smith at first refused to produce the new piece rates, but finally agreed after
consulting with Ross. Smith stated that he would furnish the new rates to
Dickason as soon as possible. Dickason then suggested that they discuss union-
security and insurance clauses for the contract , the two remaining points not
agreed upon tentatively at the Gulfport bargaining conferences . Ross at this
point questioned the Union' s majority and said that the Respondent was not
prepared to bargain on a contract extending further than June 15, 1950. He
also stated , in substance , thab the Respondent would not abide by any tentative
agreements reached at the Gulfport conferences . Upon request , Smith agreed
at this meeting to furnish to the Union the payroll for the period ending
November 2, 1949.
During the week after the March 10 conference , a representative of the Union
called at the Gulfport plant and was furnished with the November 1949 payroll,
However , the new piece rates were not given to the Union until March 24, 1950.
At this time the plant was resuming operations . Although almost all of the
employees named in the complaint had been interviewed by supervisors before
the plant reopened , none were called back to work. Subsequently , Myrtle Per-
ronne was rehired on September 20, and Katherine Reid on November 6. The.
Union filed an unfair labor practice charge with respect to these employees on
April 6, 1950.
The next bargaining conference was scheduled for April 14, but Dickason was.
unable to attend due to illness . The final bargaining conference was held at-
Ross' office on June 8. Ross and Smith represented the Respondent; and- -
Dickason and Allen appeared for the Union . Ross at first stated that the Re-
spondent was prepared to bargain for and enter into a contract for the period
until June 15, 1950. Later he changed this date to June 30 , 1950. He also said-
that the Respondent would bargain for a contract of longer duration, provided
that the Union would consent to a new election among the employees to be held,
at the end of June 1950. Dickason stated that the Union already had been certi-_
fled as bargaining agent and that it was not obligated to consent to an election.
"as a condition of bargaining ." She then discussed contract provisions for
overtime , arbitration , holidays, and vacations . Smith stated that he would,
not agree on overtime payments for hours worked in excess of 8 per day as he.
did not recollect any such agreement during the Gulfport conferences. Con.
cerning the other provisions , Ross and Smith stated that they would agree pro-
vided that the contract term ended on June 30 , 1950, or that the Union con-
sented to an election . Dickason concluded the conference by stating that the.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter would have to be referred to the Board "to determine whether or not
the company was bargaining in good faith."
On June 12 the Union filed an amended unfair labor practice charge which
alleged a violation of Section 8 (a) (5) of the Act.
B. The refusal to bargain
1. The appropriate unit and representation of a majority therein
The complaint alleges that all production and maintenance employees, in-
cluding factory clericals, record keepers and other employees in the shipping
department, warehouse employees, warehousemen, stockroom clerks, record
keepers in the cutting department, bundle boys and mechanics in the sewing
department, cleaners, janitors, and sweepers of Mac Smith Garment Company,
Inc., at its shirt manufacturing plant in Gulfport, Mississippi, exclusive of fore-
men in the cutting department, foremen, assistant foremen, floorladies, and
head mechanics in the sewing department, foremen and floorladies in the press-
ing department, foreladies in the boxing department, foremen in the shipping
department, other supervisors, office-clerical employees, watchmen, and guards
constitute a unit appropriate for the purposes of collective bargaining. The
Respondent's answer admits this allegation of the complaint. No evidence
was adduced at the hearing which would conflict with the unit alleged to be
appropriate.
Accordingly, the undersigned finds that said unit has at all times material
herein constituted and does now constitute an appropriate unit within the mean-
ing of the Act ; he finds that said unit will insure to the Respondent's employees
the full benefit of their rights to self-organization and collective bargaining,
and otherwise effectuate the purposes of the Act.
The record discloses that on June 15, 1949, a majority of the employees in said
unit by a secret election conducted by the Board designated and selected the
Union as their exclusive representative for the purposes of collective bargain-
ing, and that the Board certified the Union as such representative on June
23, 1949.
The Respondent's answer denies that the Union at all times since June 15, 1949,
has been the representative of the employees in said appropriate unit. While
the record indicates that there may have been defections from the Union, par-
ticularly after January 1, 1950, I find that said defections were caused by the
unfair labor practices of the Respondent, hereinafter related and found.
Accordingly, I find that the Union on and after June 15, 1949, represented a
majority of the employees in the unit described above for the purposes of col-
lective bargaining.
2. The negotiations
As related above, the Respondent and the Union held bargaining conferences
at Gulfport, Mississippi, on August 4, October 15, and October 16, 1949. The
parties were unable to reach definite agreement on any proposals at the August
4 meeting. On October 15, Dickason requested of the Respondent a copy of its
payroll so that she could determine whether or not the existing piece rates were
adequate. Cottrell, Respondent's attorney, refused the request 8 At the October
16 meeting, agreement was reached on all issues except the Union's insurance
fund and union-shop proposals. Among the contract clauses agreed upon were
wages, arbitration, paid holidays, paid vacations, overtime, checkoff of union
$ The Respondent supplied the Union with a copy of the wage scale for hourly workers
_and the piece rates.
MAC SMITH GARMENT COMPANY, INC. 853
dues, leave of absence, and seniority. Although it appears that the Respondent
was willing to meet the following day, the negotiations did not continue as
Dickason had an appointment in Washington which required her to leave Gulf-
port that night. It was agreed that the two remaining issues would be discussed
further, and that the contract clauses which had been agreed upon would be
drafted by the Union in New York and furnished to the Respondent.
On October 27, Dickason wrote to Smith and requested a bargaining conference.
A meeting was held on November 7 at Ross' office in New York. Dickason had
not prepared a draft of the contract, but brought to the meeting her notes of
the Gulfport conferences. As related above, Smith told Dickason that-the plant
probably would have to be closed shortly unless he succeeded in pending negotia-
tions for new business , and that under the circumstances there was no need for
further bargaining. Dickason did not agree. She pointed out that the plant
was still operating and that it was possible that it would continue to operate.
She asked Smith if she should prepare a draft of the contract and send it to
Cottrell in Gulfport or if she should endeavor to reach final agreement on lan-
guage with Ross. Smith replied that since the plant was closing there was not
"any reason to spend time going over language or attempting to reach an agree-
ment"; and that he could not make any decision on the Union's insurance pro-
posal until he reached a price agreement on new business with an unnamed firm.
When Dickason attempted to review the agreements reached at the Gulfport
conferences, Ross stated that he was not prepared to discuss exact language for
the clauses since'he was not present at the conferences and had not had adequate
time within which to become familiar with the agreement. Ross also agreed
with Smith that there was no need to complete a collective bargaining agreement
since the plant was closing. At the conclusion of the meeting Smith told Dicka-
son that he would call her as soon as he learned the outcome of his negotiations
for new business.'
As related above, Smith called Dickason on December 6 and Informed her that
he had been unable to obtain new business for the plant . Dickason urged that
bargaining on the contract be concluded , but was unable to get Smith to agree
on a date for the resumption of negotiations.
On or about December 17, Cottrell submitted a proposed contract to Blair
in Gulfport.` The expiration date of the contract was April 30, 1952. In
substance , the proposal was almost a complete retraction of the agreements
reached during the October conferences at Gulfport. Benefits such as seniority,
checkoff of dues, and paid holidays were eliminated . Other clauses were worded
so as to afford little or no protection for the working standards of employees.
Dickason placed a telephone call for Smith on January 3, 1950, but was
unable to reach him. She wrote to him on. January 13 and requested that a
bargaining conference be scheduled for January 26. The Respondent requested
that the meeting be delayed until February 6. Dickason brought drafts of
4 The above facts concerning the November 7 meeting are based for the most part upon
the credited testimony of Dickason . Ross testified to the effect that Dickason did not
"object" to the suggestion that bargaining be suspended since the plant was closing. He
also testified , contrary to Dickason , that at the February 6 meeting terms and conditions
of the contract were not "suggested" as a subject for discussion by either party. Under
all the circumstances I believe Dickason to be the more reliable and credible witness.
S Cottrell testified to the effect that he prepared a proposal at the insistence of Blair.
Blair, on the other hand, testified that Cottrell called him to his office and presented the
proposal to him. Both Cottrell and Blair appeared to be honest and sincere witnesses.
However, I do not believe that it is necessary to resolve this conflict . It is undisputed
that Cottrell was the Respondent 's attorney , and that he prepared the proposal and
submitted it to Blair . The Respondent was bound by his actions.
986209-52-vol. 97-55
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the clauses agreed upon during October to the meeting. She also had the Re-
spondent 's proposal which Cottrell had submitted to Blair. She requested that
Smith and Ross discuss the provisions of the contract and attempted to show
Ross the clauses which she had drafted . Both Ross and Smith refused by
stating that since the plant was closed and since they did not know when it
would reopen, they did not "see any reason for discussing any. points of the
agreement." However, Smith stated that agreement had been reached on some
of the points and that when the plant reopened , it would not be difficult to work
out a contract . He also remarked that the unemployment insurance of the
employees would run out in a short time and that the employees "probably would
be willing to come back for whatever the Company was willing to offer."
Dickason asked Smith if he wanted to 'use Cottrell 's proposal as a basis for
discussion . Smith replied that he was not familiar with it and that he would
have to find out more about it. The meeting was concluded by Smith telling
Dickason that he would call her as soon as he knew when the plant would
reopen.°
As related above, Smith called Dickason on March 3 and informed her that-
the plant would reopen ; and Dickason by letter to him dated March 6 requested
a conference . Thereafter , conferences were held at Ross' office on March 10 and
June 8, at which Ross told Dickason that the Respondent would not abide
by the agreements made at Gulfport during October 1949 and would only enter
into a contract lasting until June 30, 1950 , unless the Union agreed to another
election. -
3. Conclusions
It is found that the Respondent refused to bargain collectively with the Union.
on and after November 7, 1949. On that -date the plant was still in operation
and Smith was negotiating for new business . Nevertheless , the Respondent
refused to discuss the contract provisions with the Union . Even if the plant had
been closed down at the time, the Respondent 's refusal to discuss the contract
constituted a violation of Section 8 (a) (5) of the Act. The record does not
show that the Respondent definitely had gone or intended to go out of business.
On the contrary , the evidence indicates that the Respondent intended to remain
in business . During the time that it was closed , the supervisory employees were
engaged in painting and cleaning up the plant. At the November 7 conference
Smith stated that he was negotiating with a firm either for the plant's sale
or for new business , and asked Dickason if she knew of a buyer. When
Dickason replied that she might be able to locate a buyer for the plant, Smith
said that he did not believe he wanted "to sell it after all ." Financial necessity
may have forced the plant's closing temporarily , or until the Respondent caught
up with its inventory , but this did not excuse it from its obligation to bargain
collectively with the Union.
The Respondent 's retractions and unilateral acts also constitute separate
refusals to bargain . At the conference of October 16, 1949, all issues were
agreed upon with the exception of the Union 's insurance fund and union-shop
proposals . However, the Respondent altered its position by withdrawing its
agreement on a number of clauses . The retraction of these benefits was begun
° The above facts are based mainly on the credited testimony of Dickason . Ross testified
that Dickason made no attempt to discuss the contract . From his testimony it would
appear that the meeting for the most part was confined to a discussion of the economic
condition of the shirt industry and the possibility of reopening the plant . However,
Dickason 's letter of January 13 requested "a further conference on the collective bargaining
agreement."
MAC SMITH GARMENT COMPANY, INC. 855
by Cottrell 's proposal of about December 17, 1949, and completed by Ross at
the bargaining conferences of March 10 and June 8, 1950.
When the plant reopened on about March 24, 1950 , the Respondent recalled
employees and put new wage rates into effect without consulting or bargaining
with the Union . The Respondent took this unilateral action even though 1
year had not elapsed since the Union had been certified by the Board as the
exclusive bargaining representative of the Respondent 's employees.
At the bargaining conference of October 16 it was agreed that in the event
of a plant closing, employees would be laid off and recalled to work on the basis
of seniority in length of service . The Respondent repudiated this agreement
at the meeting on March 10 , 1950 . Dickason attempted to bargain with the
Respondent concerning the recall of employees and reminded Smith and Ross
of the seniority agreement . The Respondent not only refused to bargain with
her in this respect but also refused to permit the Union to check its records in
order to determine if the Respondent was adhering to its announced policy of
recalling employees on the basis of "production , attendance and quality."
At the October 16 meeting the respondent also made a tentative agreement
with the Union concerning wages. The agreement provided for an increase in
the piece rates when the new minimum wage under the Fair Labor Standards
Act became effective . The piece rates were to be based on a rate which would
exceed the minimum by 10 cents. Since the minimum wage under the Fair
Labor Standards Act thereafter was increased to 75 cents , the agreement called
for a rate of 85 cents . Without consulting or bargaining when it reopened
its plant with the Union , the Respondent put into effect piece rates which were
based on a rate of 80 cents. Although Smith agreed to supply the new piece rates
to Dickason at the March 10 meeting , they were not furnished to the Union until
the plant reopened . Accordingly , it is clear that the Respondent acted unilat-
erally, and not in conformity either with the requirements under the Fair Labor
Standards Act or with its wage agreement with the Union at the bargaining con-
ference on October 16, 1949.
C. The discriminatory refusals to reinstate
Before the closing of the plant in November 1949 , the Respondent employed
approximately 640 persons. When the plant reopened on March 24, 1950, ap-
proximately 320 employees were called back to work. Among those not recalled
were Bertie Alphin, Clara Benvenutti , Fredna Byrd, John W. Estapa, Lola Ealy,
Atlanta Magee, Helen N. Moran , Myrtle Perronne , Frances Reid , Katherine Reid,
and Ausalia Shibla. However, Myrtle Perronne and Katherine Reid were
rehired on September 20 and November 6, 1950, respectively.
All of the above employees were leaders in the Union 's organizational efforts.
Benvenutti was president of the Union , Perronne was vice president , and Ealy
was a trustee. These three employees had been officers of the United, but
changed their affiliation at sometime before June 12, 1949, when they signed
an open letter to the employees urging them to vote for the Union in the forth-
coming election . A copy of the letter was mailed to the Respondent . Benvenutti,
Ealy, Moran , Alphin , Shibla, Perronne, Frances Reid , and Katherine Reid were
elected by fellow employees to the bargaining committee , and were present at
the Gulfport bargaining conferences between the Union and the Respondent on
August 4 and October 15 and 16, 1949.
The record discloses that Byrd, Estapa, and Magee also were active on behalf
of the Union . The first meeting of the Union was held at Byrd 's home. Before
the election she distributed the Union 's stickers and buttons to employees as they
entered the plant's gate ; and attempted to pin a button on Emmet Gatewood, a
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisory employee. Estapa was elected to the bargaining committee, but did
not attend any of the conferences. However, he' wore a union button in the
plant and solicited other employees on behalf of the Union. Magee was the leader
in organizirg the colored employees in the pressing department. She wore a
union button and solicited the other colored employees to sign membership cards
of the Union. She also distributed union buttons and stickers.
None of the 11 employees named above signed the petition for reopening the
plant.
According to O'Neal's testimony, production, quality, dependabilty, and versa-
tility were the main qualifications taken into consideration In the recall of em-
ployees. It is not claimed that any of the 11 employees involved were lacking
in production or dependability. Respondent's witnesses testified to various rea-
sons for not recalling the 11 employees involved. Accordingly, it is necessary to
discuss their cases individually, rather than as a group. -
Clara Benvenutti: This employee began working for the Respondent in 1940
as a collar closer. She also worked as a collar setter, cuff closer, and first and
second joiner. It appears that at the time of the closing of the plant she was
one of the higher production makers in her section.
On about March 14, 1950, Benvenutti received a letter from the Respondent
which stated that the plant was about to reopen and requested her to appear at
the plant for a "job interview." She went to the plant and was interviewed
by Gatewood, one of her supervisors. Concerning this interview, Benvenutti
was questioned and testified credibly as follows : i
Q. Would you relate for the court what took place during that conversation?
A. Yes. Mr. Gatewood, well, he always kidded me around and so he asked
me was I ready for work. I says: "Yes." He says: "When you come in can
you bring a screw driver and a brush . We have cleaned all the machines
up and we expect you girls to help keep them clean. We will let you know
when to come back when we need you."
I says : "0. K.". I says : "Mr. Gatewood, there is a favor I would like
to ask. I always did you favors and could you return me one?"
He says : "Well, if I possibly can, I will."
I says : "Well, you know Katherine Caron-"
Q. Katherine who?
A. Katherine Caron.
Q. Who is she?
A. She was a girl who worked at the plant.
Q. What kind of work did she do?
A. She closed collars.
Q. Go ahead.
A. I said : "She has went around making her brags that she was going
to get to examine my shirts and throw them back in my face. If you can
possibly work It, make it so ,we don't work side by side, just so she can't
throw them shirts back in my face because I know she don't like me."
I said : "Emmett, I have never had trouble since I have been in that plant
and I don't expect to start having It now."
He said : "Well, Clara, I will see what I can do. If it can be arranged
I will let you know in a couple of days." -
* Gatewood, assistant stitching foreman under O'Neal, testified that Benvenutti stated
that she "understood" that Katherine Caron would be "placed over" her and that she
"would have no part of her." He admitted that he did not tell Benvenutti that she had
the wrong information and that he did not mention anything with reference to Caron.
When rehired, Caron did not work as a supervisor or as an examiner.
MAC SMITH GARMENT- COMPANY, INC. 857
A few weeks after this interview, Benvenutti and Perronne went to the plant and
-spoke to Gatewood and O'Neal. When they were told that the Respondent did
not have any work for them, they asked O'Neal for recommendations. A few
days later, Benvenutti sent a registered letter to the Respondent in which she
stated that she was making "a continuous application for employment." As of
the date of the hearing herein, Benvenutti had not been rehired by the
Vspondent.
O'Neal testified that Benvenutti was not rehired because "Mr. Gatewood's
information at the time of this interview was that (she) made her employment
strictly conditional, she was specific that she would not be able to work where
Katherine Caron did or in the same area."
Lola Ealy: She first was employed by the Respondent as a collar bander for
about a year and a half. She left the Respondent's employ, but returned during
1945. Thereafter, and until the plant closed, she worked continuously except
for a short period during 1946 when she broke her foot. In addition to collar
banding, she performed the following operations : hemming shirt tails, center
fronts, making pockets, cuff closing, collar band examining, collar band turning,
and quilting. She was a consistently high production employee.
Ealy was requested to come to the plant for a job interview on about March
14, 1950. She went to the plant and talked to Gatewood. When 'she was not
recalled to work, she returned to the plant on about March 30 to ask about
her job. On this visit she was accompanied by Bertie Alphin and Fredna
Byrd. Gatewood and O'Neal took Ealy into a separate room and talked to her
alone. When Ealy requested her job back, O'Neal replied that there was no work
for her. He also stated that she would have had "a better chance" to be rehired
if she had not come to the plant with Aiphin and Byrd. Ealy then asked if the
best operators had been recalled to work. O'Neal replied, "No, we put the ones
back to work that fit best into our little organization." 8 A few days after her
second interview, Ealy sent the Respondent a letter identical to the one sent by
Benvenutti. As of the date of the hearing, EAly had not been recalled to work.
Concerning the reasons for not recalling Ealy, O'Neal was questioned and
testified as follows :
Q. Why did you decide not to take her?
A. Well, it developed that enough other collar banders had been available,
and after the interviews as we boiled the situation down and went over it
according to the merits of the case and the cooperativeness and aptitude to
learn and the ability to move from one job to another, we went into the
difficult blending of temperament we had had between Lola and the other
operators working around her, and we therefore did not hire her.
Q. You mentioned a difficulty of blending of temperaments. Did you
mean to say that she was cooperative with her fellow workers, or uncoopera-
tive? -
A. Uncooperative.
Q. In what respect?
A. Particularly with her examiners . We often had difficulty keeping
examiners in the place where she worked or particularly in keeping them
happy. Whenever we carried repairs back, the excuse was that she hadn't
8 The above conversation is based upon Ealy's testimony. Gatewood and O'Neal denied
the remarks attributed to O'Neal by Ealy. However , Byrd and Aiphin also testified that
O'Neal made similar remarks to them about "our little organization ." I believe that
Ealy is the more reliable and credible witness and, therefore, credit her testimony in the
above connection.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fixed'her repairs and it was just a constant bickering there. Then we con-
stantly received complaints from the other banders that she was hogging-
the larger size bundles and the smaller size collars, such-as the 14's, 14%'s,
and 15's, which are the small collars, a smaller neck band than the size 17
would be.
Q. What about her work quality, was that good or not?
A. Her work quality was poor. Satisfactory most days, but she wasn't
the best collar bander in the house by far. 0
Louvenia Soucier, Ida Hudson, and Dottie Niolet, employee witnesses of the
Respondent, testified, in substance, that Ealy used foul language, hogged the
work, refused to make repairs, and generally was undesirable as a fellow
employee.'
Ausaiia Shibla: Shibla worked for the Respondent over a period of about 9
years, and continuously from 1946 until the closing of the plant. She per-
formed various jobs in the stream unit of the pressing department, such as but-
toning shirts, pressing cuffs, and inspecting shirts. She apparently was a satis-
factory employee and there were no complaints about her work.
Shibla was called to the plant for a job interview and talked to her floorlady,
Velma Smith. A few weeks later Shibla sent a letter to the Respondent, making
!a continuing application for employment. As of the date of the hearing, she
had not been recalled to work. ,
Concerning the reasons why Shibla was not rehired, Velma Smith testified to
the effect that Shibla "was a good worker but she was awful nervous and if
the supervisor would come downstairs and send her work back, she would get
awful nervous and throw out some good shirts which were just to be cleaned or
something" ; that Shibla "would get awful offended if some of the girls went
after water and wouldn't bring her back any" ; that Shibla had inspected only
the backs and not the whole shirt ; and that employee Josie Ashley was rehired
as an inspector instead of Shibla, because the former could inspect the whole
shirt.
Fredna Byrd: She began her employment with Respondent in 1940 and worked
continuously until the plant closed, except for a period during 1942 when she
broke her arm. During her employment she worked on various operations, such
as hemming button stays, hemming center fronts, back patching, and sewing
pockets. It appears that she was a satisfactory employee and a consistent pro-
duction maker.
On or about March 14, 1950, Byrd received a letter from Respondent asking
her to appear at the plant for a job interview. She went to the plant and was
interviewed by Gatewood. He told her that she was "a very good operator"
and that he knew of no reason why she would not be recalled to work. However,
she was not recalled when the plant resumed operations. On about March 30,
Byrd, Ealy, and Alphin returned to the plant to inquire about their jobs.
Byrd spoke to Gatewood and O'Neal. They told her, in substance, that they
did not have any work for her, that they had their "own little organization,"
and that she did not "belong in it." 19 On about April 7, Byrd sent a registered
letter to Respondent, in which she made a continuing application for employment.
As of the date of the hearing, she had not been recalled to work.
9 Soucier, Hudson, and Niolet.did not impress the undersigned as reliable witnesses.
10 Byrd testified credibly to the above conversation. O'Neal and Gatewood denied the
statement attributed to them. As in the case of Ealy, related above, their denials are
not credited.
MAC SMITH GARMENT COMPANY, INC. 859
Concerning the reasons why Byrd was not recalled, O'Neal was questioned
and testified as follows :
Q. Now Fredna Byrd, what job did she do?
A. Fredna was hemming button stays.
Q. How many of those operators did you call in for interviews, do you
recall?
A. Perhaps three.
Q. How many did you take?
A. Two.
Q. Whom did you take?
A. We took Ethel Cuevas, a hem button stay girl who was employed
there before we closed. The other one was Bobbie Woodcock, and we took
Bobbie to fill in for about three weeks or a month because we knew that on
a reduced size our assistant floor lady Peggy Cole had asked for her button
stay machine back, oh, about a year before we closed, and Peggy was put on
the floor, and she had a regular machine hemming button stays and of course
naturally Peggy could do a number of operations. We were training her for
assistant floor lady.
Q. I say, I am just trying to find out how Fredna Byrd compared with the
ones you have just hired with reference to her usefulness to your present
operation?
A. Her production compared favorably with Ethel Cuevas, Bobbie Wood-
cock who is equally good on button stay hemming. At times she couldn't get
quite enough work in unit one, but Bobbie was becoming a trimmer, she was
to become a trimmer after the first three weeks and that was a job which
Fredna could not go into on account of her injured arm which limited her
ability.
Q. You say she had an injured arm?
A. She did.
Q. What was the nature of that injury?
A. I don't know. Either she can't hold-I don't know whether it is the
right or the left arm, but for some reason she does have an injured elbow
which limits her ability for changing jobs. She can't patch backs but she is
limited to any job which she can do on account of that arm and there are
certain days she has pains with her arm.
Helen Moran : Moran was employed by the Respondent for about 2 years before
the plant closed. She worked in the boxing department. She had performed all
of the jobs in that department, starting as a tissue ball operator and ending as
a boxer.
About March 20, 1950, she returned to the plant for a job interview and talked
to her supervisor, Gertrude Nohra. Several days after this interview she met
Nohra in Gulfport. Nohra told her that she was a good worker, but that she
(Nohra) only wanted employees who lived in Gulfport." As of the date of the
hearing, Moran had not been recalled to work.
Nohra testified to the effect that Moran was not recalled for the reason that
she was a very inefficient employee. She testified that Moran was "very slow" ;
that it was "hard for her to understand" instructions ; that she could not read
n Moran testified credibly concerning the above conversation. Nohra did not deny the
statements attributed to her. However, she testified that she did not remember meeting
Moran or making such statements to her. Moran testified that she lived about 15 or 17
miles from Gulfport.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the "size scale" ; and that she made mistakes." Nohra also testified that before
the plant closed eight boxers were employed; that about six or seven of these
employees were called for job interviews ; that four boxers were rehired when
the plant resumed operations ; u that Joyce Coleman, one of the boxers, later was
discharged as she was not needed ; and that Frankie Cruthirds, a sorter who had
been rehired, left the Respondent's employ and was replaced by Edith Morris,
a boxer."
Frances Reid : Reid was employed by the Respondent from September 1947
until the plant closed in November 1949. She worked as a stacker and examiner
on cuffs under the supervision of Gatewood.
On about March 13, 1950, Reid received a letter from the Respondent request-
ing her to report to the plant for a job interview. She returned to the plant on
March 15 and was interviewed by Gatewood. On about March 24 she called
Gatewood and asked him the reason why she had not been recalled to work.
Gatewood told her that he "wanted a girl that could operate a machine and
stack also so in case somebody would be out of work that they could run the
machine if the girl on the machine was out that day." 36 Several days after
her telephone conversation with Gatewood, Reid sent a registered letter to the
-Respondent, in which she made a continuing application for employment. As of
the date of the hearing, Reid had not been recalled to work.
Concerning the reasons why Reid was not rehired, O'Neal was questioned
and testified as follows :
Q. Frances Reed, what job did she do?
A. We refer to the official title of that job as break and examine cuffs.
That is, pairing the cuffs together.
Q. Is Miss Reed a machine operator or not? _
A. Miss Reed is, not a machine operator.
Q. How many cuff examiners do you need?
A. We need one on that operation.
Q. And then you took one?
A. We took one.
Q. Who did you take?
A. We took Pauline Burns.
"From Nohra's testimony, it would appear that Moran was an uneducated person who
was not able to understand the simplest instructions. From Moran's demeanor as a witness,
she impressed the undersigned as intelligent, forthright, and honest. A careful review of
her testimony confirms this impression. Accordingly, I am unable to believe the above
testimony of Nohra. Further, it is noteworthy that Moran was one of the boxers recalled
by Nohra after the plant closed for some special boxing. This fact does not support the
claim of gross inefficiency. Concerning mistakes, Nolira testified that on one occasion she
discovered that the orders of two different customers had been mixed ; that Smith told her to
discharge the employee who was responsible; that by checking the tickets of Margaret
Ladner and Moran she determined that Moran was responsible for the mistake ; and that
she did not discharge Moran because she acknowledged the mistake and said she was sorry.
Concerning this same incident, Moran testified credibly that at the time she was training
Ladner to box ; that Ladner made the mistake ; and that Nohra told her that she was not
responsible since she was teaching Ladner. Ladner, who did not impress the undersigned
as a reliable or credible witness, testified that she had never been assigned to Moran for
instruction , that Moran herself made the mistake in question, and that Moran was "much
slower" than the other boxers and made mistakes "pretty frequent."
a, Flora Ladner, Margaret Ladner, Hilda Messer, and Joyce Coleman were the boxers
recalled.
14 Nohra in her testimony at first did not mention Morris as one of the employees called to
the plant for job interviews. Later, she testified that she did not "remember" but thought
that Morris had been called for an interview.
18 Reid testified that Gatewood made the above statement, and the undersigned credits her
testimony in this connection. Gatewood denied the statement attributed to him.
MAC SMITH GARMENT COMPANY, INC. 861
Q. What was the reason you took Pauline Burns?
A. The reason we took Pauline Burns is that she is more maneuverable.
She was a machine operator. She had gauged cuffs at our plant for some
years. She had also examined collar closing and she could break and
examine cuffs naturally, of course.
Q. Some of the witnesses and at least Frances Reid testified that Inez
Bond was called back for her job ; is that right?
A. Inez Bond was called back, but she was called back on the operation
of break and run cuffs.
Q. I see. Although she could examine cuffs she actually is working at
breaking and running cuffs?
A. Yes, that is the job that Inez Bond does.
Q. So if Pauline Burns falls out, Inez can come in and do this job?
A. She could. In addition she is a machine operator on running cuffs.
John W. Estapa: With the exception of a period of about 4 months during
World War II, Estapa was employed continuously by the Respondent from
February 1941 until the plant closed. He began work as a spreader-in the
cutting department and advanced to "head spreader." He then became a trimmer.
He was offered a job as cutter, but refused it. When the plant closed he was
a trimmer on collars, one of the most important of the trimming jobs.
Shortly before the plant reopened, Estapa received a letter from the Respondent
advising him that he would not be rehired. The next day he was notified
to report to the plant for a job interview. On about March 15, he went to the
plant and was interviewed by Fred Ulf, Jr., foreman of the cutting department.
Ulf told him, in substance, that about only half of the employees of the cutting
department would be recalled ; that he had offered trimmer jobs to some cutters ;
and that if the cutters accepted, Estapa might have to take a demotion to
spreader. Estapa stated that he was satisfied to go back to work as a spreader.
As of the date of the hearing, Estapa had not been recalled to work.
Concerning his reasons for not recalling Estapa, Ulf was questioned and testi-
fied as follows :
Q. How many trimmers did you need to recall?
A. Well, prior to closing we had four trimmers and one man tied up
bundles and helped trim and various other places, and at the opening again
we only needed three trimmers.
Q. Did you obtain three trimmers?
A. Yes.
Q. Who did you hire as trimmers?
A. Well, two fellows here were cutters and they accepted the position as
trimmer and one of the original trimmers.
Q. You said two fellows who had been cutters were given the position
of trimmer. Was that a demotion?
A. Yes, it was a demotion, approximately $20 a week.
Q. Why did you hire cutters for the trimmers' jobs rather than hiring
back your regular trimmers?
A. Well, we didn't know when we would need those men again. They
were valuable as they could fill in as trimmers or cutters and we hoped that
in the future we would have the unit working where these men would be
put back on cutting.
s * x m * •
Q. The one trimmer you did recall, what was his name?
A. Eugis Dubuisson.
Q. Did you call back Mr. Estapa at all?
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. No, I didn't.
Q. Why didn't you call back Mr. Estapa rather than Dubuisson?
A. Mr. Estapa is a fellow who loves to argue, he is a disruptive influence
in the cutting room, always has been. He is a good worker when he wants
to work, but for the most part he wants to go from one fellow to another
trying to cause a commotion among the workers. He will get something
out of one fellow about somebody's work and then run to this next fellow
and tell him what the other fellow said and run back and tell him vice versa,
and generally he is just a disruptive influence for the work in the plant.
Q. You say you had one selection to make; is that true? -
A. That is true.
Q. To the best of your judgment, Mr. Dubuisson was more qualified?
A. That is'correct.
Ulf also testified that Estapa at times performed faulty work, that Estapa would
not take correction and "quite frequently" gave him "a lot of backtalk" ; that
when the plant reopened, he recalled one trimmer as a spreader and recalled
"some" spreaders ; that subsequently "some" spreaders were permitted to go
-back to trimming; and that about 6 weeks before the date of his testimony he
rehired Renice Necaise, an employee who was a spreader when the plant closed.
Bertie Alphin : Alphin was employed by the Respondent continuously from
about 1939 until the plant closed. She worked in the stitching department, and
during her period of employment had performed various operations, such as,
collar inspector, collar closer, examiner, collar notcher, collar band turner, collar
second stitcher, band quilter, and collar band hemmer. When the plant closed,
she was a collar band hemmer.
Alphin received a letter requesting her to report to the plant for a job inter-
view. She went to the plant on March 15 and was interviewed by Gatewood.
Gatewood told her that the Respondent was planning to reopen the plant about
March 27; that all of the employees could not be recalled ; that since she was
"a good operator," he "felt sure" that she would be recalled ; and that he would
"advise" her to get someone to fill the job she then had so that she would be pre-
pared to return to work. Alphin quit her job after this interview, but was not
recalled to work when the plant reopened. On about March 30, she returned to
the plant with Ealy and Byrd and spoke to Gatewood and O'Neal. Alphin asked
if there was any work for her and was told that there was not. She then re-
minded Gatewood that he had told her that the "best operators" would be re-
called, and that the employee recalled in her place was not a good operator since
she had never made production on that operation. O'Neal told her that the
operators who were recalled were those who "fit into our own little organiza-
tion." 18
After this second interview, Alphin sent a registered letter to the Respondent
in which she made a continuing application for employment. At the time of
the hearing she had not been rehired.
O'Neal testified at length concerning the reasons why Alphin was not recalled
to work. In substance, he testified that she had difficulty with the job of examin-
ing because of her legs ; that numerous employees stopped at her machine and
talked to her; that he determined that these visits were "just social" and not
"union activity" ; and that "a solid ledge" was built about Aiphin's table in order
to discourage visitors." In its brief the Respondent contends that "Alphin was
not rehired because of her physical incapacity, because she was a disruptive in-
11 As related above, O'Neal denied making this statement.
14 Alphin testified that the ledge was built on her table "just a little while" before the
Board's election.
MAC SMITH GARMENT COMPANY, INC. 863
fluence in the plant, the cause of a tremendous amount of interference with plant
efficiency and productivity and because she, too, did not measure up to the versa-
tility' and adaptability required of the reduced number of employees being
rehired."
Katherine Reid : Reid first began working for the Respondent about March
1939. Except for a period in December 1947, when she had an operation, she
worked continuously from 1945 until the plant closed. She was a collar
roller in the steam unit of the pressing department under Floorlady Velma
Smith.
During March 1950, Reid received a letter requesting her to report to the
plant for a job interview. She went to the plant on about March 20 and
was interviewed by Floorlady Ava Fiveash. Reid was not recalled to work
When the plant resumed operations, and she sent a letter to the Respondent
making a continuing application for employment. She was rehired as a cuff
buttoner by the Respondent on November 6, 1950.
Velma Smith testified that when the plant reopened she recalled to work
four of the original six collar rollers ; that Reid's attendance record was not
good ; and that Reid's refusal to work overtime was objectionable." Smith
further testified, "Well, Katherine Reid was constantly watching the clock.
She had been told not to run to the clock and she didn't take any orders,
and so one day she fell down. I think that was in 1949, and she was
running so fast to the, clock that she fell down and broke her arm, and she
always watched the clock and run toward the clock. One day she did have
a talk with the Company on it."
Myrtle Perronne: She first was employed by the Respondent in 1940. She
worked continuously for 2 years before the plant was closed in November 1949.
Her job primarily was collar setting. She also at times examined collar
closing and joining , performed repairs , and packed shirts in the shipping
department.
After receiving a letter to report for a job interview, she went to the plant
and talked to Gatewood. Later she returned to the plant to check on her
job and was told by O'Neal and Gatewood that no work was available for
her. Thereafter she sent the Respondent a registered letter in which she
made a continuing application for employment. On about September 20, 1950,
Perronne was rehired by the Respondent as a collar setter.
Concerning the reasons why Perronne was not recalled when the plant
reopened , O'Neal was questioned and testified as follows :
Q. What job did Myrtle Perronne do at the time of the closing of the
plant?
A. Myrtle was a collar setter.
Q. Upon reopening of the plant in 1950, how many collar setters did
you invite to the interview?
A. I believe five.
Q. How many did you take?
A. Excuse me, did you say at the interview?
Q. Yes.
mm With respect to the attendance record, Smith testified that Reid did not receive a "vaca-
tion with pay" during 1949. Reid testified that to the best of her memory her attendance
record was sufficient to earn her a vacation of about 1 week. Reid admitted that she at
times refused to work overtime when it was not convenient for her to do so, but testified
that she did some overtime work during 1949. Since Smith did not impress me as a reliable
or credible witness, I credit Reid's testimony in this connection . It is noteworthy that the
Respondent did not produce its payroll records to support Smith ' s testimony concerning
vacation pay and overtime.
864 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
A. I don't remember. - -
Q. I will ask you whether or not you had ten or eleven collar setters at
the time the plant closed in November, 1949.
A. Yes, we did.
Q. How many collar setters did you take back or recall about the first
of April, 1950?
A. We rehired five of the collar setters.
Q. You said Myrtle Peronne was one of the collar setters?
A. Yes, sir.
Q. What collar setters did you take?
A. We took back three girls on their regular machines in unit three,
that was on the same machines before they left and they fit right back into
their regular lines. Collar setting occurs in a full assembly operation such
as we used in our plant which is composed of joining the shirt together;
setting the collar on and closing it and examining it.
The three who fit into that category were Mary Chiniche, Mary Single-
terry, Bessie Shaw.
Q. Then you had two others that you took back for set collars. Who
were they?
A. Louise James and Mayme Warren. The reason we took Louise James
was because of her ability to set collars and second stitch collars, band
collars, and she was also very good on repairs.
Q. How about Mayme Warren?
A. Mayme Warren could do any operation in the line in a capable man-
ner. She could join, set collars, close collars and examine closed collars.
Q. Could she make production on all those operations?
A. She has made production on each of those operations, particularly
when we would leave her on one job a week or two. She was our handiest
worker up and down the line on an operation of that kind.
Q. What operations could Myrtle Peronne do to make quota?
A. Set collars is the principal operation that I know of.
Q. Do you know of any operations she does as a quota maker?
A. No, I don't.
Q. I will ask you if there were not a number of good people and qualified
people who were unable to be taken back when you reopened the plant?
A. There were, and even on these examples of collar setting in our
operation on a reduced basis we found ourselves with some good collar
setters such as Mary Logue, Delia Hutter and Neldra Necaise and Myrtle
Peronne, of course, whom we were unable to take back into the operation
to begin with. I might state that the first vacancy that occurred on collar
setting was filled by Myrtle Peronne. She is now working.
Q. She is now working at the plant, is she?
A. She is there today.
Q. I believe in Myrtle's direct examination she made the statement that
she made more production than Louise James ; is that true?
A. If so, not a great deal more. Now I am particularly comparing
Myrtle's production before the closing of our plant.
Q. Could she do all the operations that Louise James could?
A. She could not, and we were particularly interested at the time we
opened in Louise's ability as a fair second stitcher and the ability to fill
in on banding collars.
Atlanta Magee: Magee began her employment with the Respondent in October
1947 as a presser in the pressing department. She was considered to be "a good
MAC SMITH GARMENT COMPANY, INC. 865
presser" by the Respondent , and made her production . At about the time the
plant reopened , she received a letter from the Respondent telling her that she
would not be reemployed as work was not available for her. None of the colored
employees were called back to work when the plant resumed operations. How-
ever, at some undisclosed time thereafter approximately 10 of them were rehired.
As of the date of the hearing , Magee had not been recalled to work.
Concerning the reasons for not recalling Magee, Velma Smith was questioned
and testified as follows :
Q. Now, Atlanta Magee. Did you call her back?
A. No, sir, I did not.
Q. Did you have any particular reason why you didn't call her as com-
pared to someone you did call back?
A. Yes, she wasn 't as fast a presser as some of the others that I did
call back.
Q. What type of presser was she?
A. Well, she was a good presser.
Q. Was she a good presser?
A. Yes, she was.
Q. What about the quality of her work?
A. Well, the quality was , if she wanted to work she would, and if she
didn't she wouldn't.
Q. Have you ever had any occasion to reprimand or correct her?
A. I certainly have.
Q. How often?
A. Well, pretty often.
Q. Was she a person who readily took orders and conformed to what you
said to her?
A. She wouldn 't pay any attention when she was asked not to do things.
She constantly talked to the other pressers and went to the rest room, and
I have had to go after her several times myself.
Conclusions
The General Counsel argues in his brief that his case on discrimination has
been proved since the record shows that with few exceptions the leaders and out-
standing adherents of the Union were not recalled to work when the plant
reopened and that those employees who were prominently connected with the
circulation of the back-to-work petition all were recalled . He contends that the
evidence discloses a pattern of conduct on Respondent 's part, designed "to cut
the Union 's throat and let it slowly bleed to death." 19
In answer to this argument, Respondent points out in its brief that Louise
James, a "trustee" of the Union , and Hilda Messer , Inez Page , Raymond Reaux,
and Paul Gaidrosich , members of the employees ' negotiating committee , all were
recalled to work when the plant reopened . The evidence also discloses that
Robert Goodson , a member of the committee, was rehired at the time 20
19 The General Counsel and the Union urge in their briefs that the facts related in the
affidavit of Ivy Necaise , which was received in evidence , should be credited by the Trial
Examiner and considered in connection with the charges of discrimination . Necalse, a
former foreman of the Respondent , was called as a witness by the General Counsel. His
testimony is in direct contradiction to the statements made in his affidavit. Necalse did
not impress me as a reliable or credible witness . While the question of law presented is
close, I believe that the affidavit should be considered as having no substantive testi-
monial value and serves only for purposes of impeachment . This conclusion is in con-
formity with the general rule of evidence.
10 Goodson 's name appears on the payroll for the period ending April 15, 1950.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am convinced and find that the Respondent discriminated against the 11
employees involved because of their membership in and activities on behalf
of the Union. The record is replete with evidence which shows conclusively that
the Respondent knew that these 11 employees were leading adherents of the
Union. Some of this evidence, although credited, has not been discussed herein,
since it is considered remote and cumulative. With respect to the Respondent's
contention concerning Reaux, Page, and Messer, all 3 of these employees signed
the back-to-work petition. Goodson also signed the petition. As related above,
the evidence discloses that Gaidrosich was not a member of the negotiating
committee. In addition, the evidence indicates that all of these employees,
including Louise James and Robert Goodson, either lost interest or never were
active in union affairs. James and Reaux did not attend the October 15 and 16
negotiating conferences at Gulfport ; and Messer and Goodson were present at
only one or two of the meetings. As pointed out in the General Counsel's brief,
these employees were on the "fringe." -
A casual check of the signatures on the back-to-work petition shows the names
of many of the employees who were mentioned by Respondent' s witnesses as
having been recalled to work in preference to the 11 employees named in the
complaint. Further, the evidence shows that all of the employees who were
prominently connected with the circulation of the petition were rehired when
the plant reopened. In contrast, none of the strong advocates of the Union
were recalled. In my opinion, these facts amount to more than mere coincidence
Standing alone , they reveal a course of antiunion conduct on the Respondent's
part.
The Respondent's individual defenses are in some instances beyond belief
and apparent pretexts. The cases of Shibla, Moran, Benvenutti, and Katherine
Reid are examples of this conclusion. It is claimed that Ealy and Estapa were
disruptive influences in the plant. This also is difficult to believe in view of
their election to the bargaining committee by fellow employees. In other in-
stances the Respondent's defenses are contradictory. Its witnesses testified that
versatility was one of the factors taken into consideration in the rehiring of
employees. An employee's capability for performing machine operations partic-
ularly was stressed. Nevertheless spreaders were recalled to work instead of
Estapa, who had experience as both a spreader and a trimmer and who had
been a head spreader. The evidence also shows that Perronne, Alphin, Moran,
Byrd, Shibla, Ealy, and Benvenutti all were able to perform more than one
operation. Respondent contends that Alphin and Byrd were not rehired partly
because of physical disabilities. Alp hip's legs apparently became tired when
she examined. However, in addition to examining and inspecting, she performed
a number of machine operations. She was not required to use her legs when
operating a machine. With respect to Byrd, it is claimed that an arm which
she broke in 1942 limited' her performance to some extent, apparently trimming
and back patching. But Byrd also could perform a number of machine opera-
tions, and it is undisputed that she was a good production maker. She ad-
mitted that she got a pain in her arm when she trimmed. However , machine
operation was her regular job and trimming was an extra assignment. More-
over, it appears from Respondent's witnesses that versatility was required so
as to meet emergencies, and that not all of the employees rehired were capable
of performing more than one operation.
Under other circumstances it may be that the Respondent would not have
recalled all of the 11 employees involved herein when the plant reopened. The
undersigned particularly has in mind Frances Reid and Katherine Reid. How-
MAC SMITH GARMENT COMPANY, INC. 867
ever, the Respondent has become so enmeshed in its own unfair labor practices
that I am unable to differentiate between the cases.
Accordingly, I find that the Respondent violated Section 8 (a) (3) of the
Act on about March 24, 1950, by failing and refusing to reinstate Alphin, Ben-
venutti, Byrd, Estapa, Ealy, Moran, Perronne, Shibla, Frances Reid, and Kath-
erine Reid, and by failing and refusing to reinstate Magee at sometime after
March 24, 1950, when other colored employees were rehired.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent by its course of conduct on and after
November 7, 1949, refused to bargain collectively with the Union as the exclusive
representative of its employees in a unit appropriate for the purposes of col-
lective bargaining. Accordingly, it will be recommended that the Respondent
bargain collectively, upon request, with the Union as the exclusive representative
of its employees in the aforesaid appropriate unit, and that the Respondent
embody any understanding reached in the course of such collective bargaining,
upon request , in a written agreement, signed by the parties affected thereby.
It further has been found that the Respondent on about March 24, 1950, discrim-
inatorily failed and refused to reinstate Bertie Alphin, Clara Benvenutti, Fredna
Byrd, John W. Estapa, Lola Ealy, Helen N. Moran, Myrtle Perronne, Frances Reid,
Katherine Reid, and Ausalia Shibla ; and discriminatorily failed and refused to
reinstate Atlanta Magee at sometime after March 24, 1950. It will be recom-
mended that the Respondent offer each of the employees named above, excepting
Perronne and Katherine Reid, immediate and full reinstatement to his or her
former or substantially equivalent position without prejudice to his or her
seniority or other rights or privileges. It further will be recommended that the
Respondent make whole each of the above employees for any loss of pay he or she
may have suffered by reason of the Respondent's discrimination by payment of a
sum of money equal to that which each would have earned as wages from the date
of the discrimination to the date of an offer of reinstatement, or to the date of
actual reinstatement as in the cases of Perronne and Katherine Reid , less his or
her net earnings during said period. Loss of pay shall be computed on the basis
of each separate calendar quarter or portion thereof during the period from the
Respondent's discriminatory action to the date of a proper offer of reinstatement.
The quarterly periods, herein called quarters, shall begin with the first day of
January, April, July, and October. Loss of pay shall be determined by deducting
from a sum equal to which he would normally have earned for each such quarter
or portion thereof, his net earnings, if any, in other employment during that period.
Earnings in one particular quarter shall have no effect upon the back-pay liability
for any other quarter. In accordance with the Woolworth deoision,21 it will be
21 F. W. Woolworth Co., 90 NLRB 289.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommended that Respondent, upon reasonable request, make available to the
Board and its agents all records pertinent to an analysis of the amount due as
back pay.
The unfair labor practices found reveal on the part of the Respondent such a
fundamental antipathy to the objectives of the Act as to justify an inference that
the commission of other unfair labor practices may be anticipated. The preven-
tive purposes of the Act may be frustrated unless Respondent is required to take
some affirmative action to dispel the threat. It will be recommended, therefore,
that Respondent cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAw
1. Amalgamated Clothing Workers of America, C. I. 0., 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 the
employees named above, the Respondent has engaged and is engaging in unfair-
labo'r practices within the meaning of Section 8 (a) (1) and (3) of the Act.
3. All production and maintenance employees including factory clericals, record
keepers, and other employees in the shipping department, warehouse employees,
warehousemen, stockroom clerks, record keepers in the cutting department, bundle
boys and mechanics in the sewing department, cleaners, janitors, and sweepers of
Mac Smith Garment Company, Inc., at its shirt manufacturing plant in Gulfport,
Mississippi, exclusive of foremen in the cutting department, foremen, assistant
foremen, floorladies, and head mechanics in the sewing department, foremen and
floorladies in the pressing department, floorladies in the boxing department, fore-
men in the shipping department, other supervisors, office-clerical employees,
watchmen, and guards, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
"4. Amalgamated Clothing Workers of America, C. I. 0., was on June 15, 1949,
and at all times since has been, the exclusive representative within the meaning 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 the aforesaid Union as the exclusive
representative of the- employees in the appropriate unit, the Respondent has
engaged and is engaging in unfair labor practices within the meaning of Section &
(a) (5) of the Act.
6. The aforesaid unfair labor practices are'unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
- [Recommended Order omitted from publication in this volume.]
AMERICAN TWINE & FABRIC CORPORATION and TEXTILE WORKERS,
UNION OF AMERICA , CIO . Case No. 1-CA-912. December 09,1951
Decision and Order
On June 22, 1951, Trial Examiner Frederic B. Parkes, 2nd, issued
`his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
97 NLRB No. 127.