Martin Arsham Sewing Co.

National Labor Relations Board - Board Decisions

Sep 7, 1979

244 N.L.R.B. 918 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martin Arsham Sewing Co. and International Ladies
Garment Workers Union, Local 29. Case 8-CA-
11894
September 7, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On March 21, 1979, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the General Counsel filed ex-
ceptions and a supporting brief, and the Charging
Party filed a brief in support of the exceptions filed by
the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The Administrative Law Judge found, and we
agree, that Respondent's violations of Section 8(a)(1),
(3), and (5) of the Act warrant the imposition of a
bargaining order. We do not agree, however, with his
finding that, although Patton, Thomas, McCoy, and
Mays were unfair labor practice strikers, they were
not discriminatorily discharged as were all other un-
fair labor practice strikers.
The record shows in this regard that on April I1,
1978, pursuant to a card majority, the Union re-
quested recognition and bargaining, and that, after
rejection, Respondent's owner, Arsham, stated to the
assembled employees that "whoever signed the cards
could get their coats and leave . . . [that they] could
leave with the Union or stay and work." The employ-
ees chose to abandon Respondent rather than the
Union and left the premises, and thereby were con-
structively discharged in violation of Section 8(a)(3)
of the Act. They then engaged in a strike which the
Administrative Law Judge correctly found to be an
unfair labor practice strike.
Patton, Thomas, McCoy, and Mays, all of whom
had signed union authorization cards prior to April
II, were absent on that day and, after fellow employ-
ees had informed them of Arsham's statements and of
the strike, they joined in the strike, which they refused
to abandon despite Supervisor Williams' subsequent
direct request to Patton that she return to work. The
Administrative Law Judge concluded that the facts
are insufficient to show that these four employees
would not have been permitted to work if they so
chose. We do not agree.
It is clear, and we find, that Arsham's discharge
statements, although not made directly to the four
employees absent from work on April I , were di-
rected to all union card signers, and therefore Arsham
reasonably could have expected that his statements
would be communicated to these four absent union
card signers as in fact they were. We further find that
their participation in the strike was bottomed on
those statements. Absent any probative evidence to
the contrary, we cannot view Williams' subsequent
request that Patton return to work as a renunciation
of Arsham's position, but find, instead, that the re-
quest merely was an extension of the unlawful choice
offered. Accordingly, we find, contrary to the Admin-
istrative Law Judge, that Patton, McCoy, Thomas,
and Mays also were constructively and unlawfully
discharged in violation of Section 8(a)(3) and (I) of
the Act, and we shall order reinstatement and back-
pay for them also.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Martin
Arsham Sewing Co., Cleveland, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
1. Substitute the following for paragraph 2(b):
"(b) Offer to Crystal Cash, Rebecca Clements, Al-
bertha Curry, Charlotte Daye, Wilma Jones, Beadell
Wilson, Denise Wilcox, Diana Whitmore, Sarah
White, Ann Patterson, Marliese Nieves, Joan Mas-
singill, Rose Thomas, Gloria McCoy, Mary Patton,
and Magnolia Mays immediate and full reinstate-
ment to their former positions or, if those positions no
longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of
earnings they may have suffered by reason of the dis-
crimination against them in the manner set forth in
the section of this Decision entitled 'The Remedy.'"
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Inter-
national Ladies Garment Workers Union, Local
244 NLRB No. 149
918
MARTIN ARSHAM SEWING CO.
29, or an), other labor organization, by discharg-
ing any of our employees or in any other manner
discriminating against them with regard to their
tenure of employment or any term or condition
of employment.
WE WILL NOT refuse to recognize or bargain
with International Ladies Garment Workers
Union, Local 29, as the exclusive representative
of all employees in the appropriate bargaining
unit described below.
WE WILL NOT coercively interrogate our em-
ployees concerning their or other employees'
union activities, membership, or desires.
WE WILL NOT physically strike union represen-
tatives in the presence of employees.
WE WILI. NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
WE WILl., upon request, bargain collectively
with International Ladies Garment Workers
Union, Local 29, as the exclusive bargaining rep-
resentative of all the employees in the bargaining
unit described below with respect to rates of pay.
wages, hours of employment, and other terms
and conditions of employment and, if an under-
standing is reached, embody that understanding
in a written, signed agreement. The bargaining
unit is:
All production and maintenance employees,
excluding all office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
WE WILL offer to Crystal Cash, Rebecca Clem-
ents, Albertha Curry, Charlotte Daye, Wilma
Jones, Beadell Wilson, Denise Wilcox, Diana
Whitmore, Sarah White, Ann Patterson, Mar-
liese Nieves, Joan Massingill, Rose Thomas,
Gloria McCoy, Mary Patton, and Magnolia
Mays immediate and full reinstatement to their
former jobs or, if those positions no longer exist,
to substantially equivalent jobs, without preju-
dice to their seniority or other rights and privi-
leges, and make them whole for any loss of earn-
ings they may have suffered as a result of the
discrimination against them, with interest com-
puted thereon.
All our employees are free to join International La-
dies Garment Workers Union, Local 29. or any other
labor organization.
MARTIN ARSHAM SEWING CO.
DECISION
STATEMENT OF IHt CASI
CI.AUDE R. WOIFE, Administrative Law Judge: This case
was heard before me in Cleveland. Ohio. on October 30 and
31 and November 1, 1978.' pursuant to complaint issued
June 14. and charges were filed on May I by International
Ladies Garment Workers Union, Local 29. herein called
the Union. The complaint, as amended at the hearing, al-
leges violations of Section 8(a)( ), (3). and (5) of the Act
consisting of interrogation and threats, discharge or con-
structive discharge of 16 employees, and a refusal to bar-
gain with the Union. Respondent denies the commission of
unfair labor practices.
Upon the entire record,' including my observation of the
witnesses as they testified, and after careful consideration of
the parties' post-hearing briefs. I make the flollowing:
FINDINGS AND CON('L,'SIONS
I. JURISIIC ION
The complaint alleges. Respondent admits. and I find
that Respondent is an Ohio corporation with its only office
and place of business located in Cleveland. Ohio. where it is
engaged in the contract sewing of draperies for commercial
businesses, and Respondent annually. in the course and
conduct of its business, provides services in excess of
$50,000 to the United States Government. and to other en-
terprises, each of which annually receives goods and ser-
vices or materials valued in excess of $50,000 directly from
points located outside the State wherein said enterprises are
located. Respondent is now, and has been at all times mate-
rial herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. ABOR ORAN;IZ.A IO
The Union is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
II. TtHE ALL.EGiED UNFAIR LABOR PRAC II(S
A. The Factls
A unit of the Respondent's employees appropriate for the
purposes of collective bargaining is:
All dates herein occurred in 1978.
Resp. Exh. 5 and 6 were not received in evidence. although the reporter's
markings on them indicate that they were. Contrary to Respondent's asser-
tion in his brief. my admonition, on page 80 of the record, to "Stop your
fencing" was directed to both the witness, Pishko. and Respondent's counsel.
The facts set forth herein are based on a synthesis of the credited aspects
of the testimony of all witnesses, the exhibits, stipulations of fact. and careful
consideration of the logical consistency and inherent probability of the facts
found. Although I may not. In the course of this decision. advert to all of the
record testimony or documentary evCdence. it has been weighed carefulls
and considered to the extent that testimony or other eidence not mentioned
herein might appear to contradict the findings of fact. that evidence has not
been disregarded. but has been rejected as incredible. lacking in probanse
woith. surplusage, or was irrelevant
919
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees, excluding
all office cleric;ll emploees and professional employ-
ees. guards. and supervisors as defined in the Act.
The parties agree that the flloswing employees were
members of that unit on April II1: Eva Bucsanyi. Frizell
Burt. ('rystal ('ash. Rebecca Clements, Albertha Curry.
Charlotte Daye. E!ugene Hancock. Mary Johnson. Wilma
Jones. Pauline Kessler. Marina Marinkovic. Joan Mas-
singill. Marliese Nieves. Ann Patterson. Susie Prince. Ann
Rankin, Sarah White. Diana Whitmore. Denise Wilcox.
Beadell Wilson, Magnolia Mays, and Mary Patton.4 In ad-
dition, the General Counsel contends, and Respondent de-
nies. that Gloria McCoy and Rose Thomas were also unit
members on April I i.
It appears that McCoy's last day at work was March 17.
According to McCoy. she told Supervisor Eva Williams
that she needed time off because she was sick, and Williams
told her to take the time she needed and to get in touch
with Williams when she was ready to return to work. She
states that she was well enough to return on May I, but did
not do so because other employees were picketing. Williams
testified that McCoy told her that she had to be off work for
surgery and did not know when she could return to work.
Williams says that she expressed sympathy over McCoy's
illness and told McCoy to keep in touch with her. There is
no substantial contradiction between the testimony of the
two, but I credit the fuller version given by McCoy because
she seemed to be truthful and the instruction to get in touch
when she was ready to return is consistent with Williams'
comment that the same message conveyed to Rose Thomas
by Williams meant that Thomas should call in when she
could return to work. I find that McCoy went on sick
leave,' had a reasonable expectancy of employment, and
was an employee in the unit on April I I. That she did not
return on May I due to the strike does not alter this conclu-
sion.
Rose Thomas' last day at work was March 29. Thomas
claims that she asked Williams for 2 weeks off because she
was pregnant and tired; Williams agreed. She did not re-
turn to work because she would not cross the picket line.
Her child was born on August 26. According to Williams,
Thomas told her that she would have to stay home because
she was in poor health and having trouble with her preg-
nancy, but the question of a 2-week leave of absence was
not discussed. Williams asked Thomas to keep in touch, by
which she meant for Thomas to call in when she could
return to work. Thomas' credibility is placed in question by
her admission that she knowingly concealed her employ-
ment with Arsham from the county welfare department.
which was giving her assistance. I find it unnecessary to rely
on her testimony because Williams' testimony fairly estab-
lishes that Thomas was absent from work due to pregnancy
complications and had a reasonable expectancy of return-
ing when physically able to so do. I therefore conclude that
Rose Thomas was an employee of Respondent on April 1 1.
4The record incorrectly shows "Marty" Patton at one point.
Whether or not Respondent had a "formal" sick leave policy is not a
controlling factor.
The General Counsel proved. Respondent concedes, and
I find that 12 employees signed valid authorization cards
for the Union between March 13 and April 10.' A card was
signed by Ann Patterson on either April 7 or 10. She testi-
fied that she signed it at the plant on April 7, but then
stated she got the card at a union meeting held on April 10.
In a pretrial affidavit, she asserted that she signed the card
at the meeting. In any event, it is plain that she did sign the
card prior to the Union's demand of April I and the al-
leged refusal to bargain on that date (both of which are
discussed belowl. and her card validly designates the Union
as her representative. It is uncontroverted, and I so find.
that Gloria McCoy signed a valid authorization card for the
Union on March 13. Sarah White and Wilma Jones signed
cards on April II., after the alleged refusal to bargain and
subsequent walkout of' the employees on that date.
On the morning of April I I, union representatives Pishko
and Freeland entered the shop, introduced themselves to
Martin Arsham. and advised him that the union repre-
sented a majority of the employees. Arsham took them into
his office where, after some preliminary conversation about
whether or not the employees were happy with their work-
ing conditions, Piskho offered to show Arsham the signed
cards and gave him a recognition agreement.s Arsham
evinced a desire to talk to his lawyer, and Pishko agreed
that he should. Arsham called the lawyer, found he was in
trial and not readily available, and suggested to Pishko that
he would get in touch with the Union after he managed to
talk with his lawyer. Pishko pressed his request that the
question of recognition be settled more promptly than that.
Arsham declined. Freeland, who had not taken a significant
part in the conversation, then walked into the shop, fol-
lowed by Arsham and Pishko in that order, and called to
the employees. Want happened thereafter is a matter of
considerable dispute. Given the fact that neither Pishko nor
Arsham were overly impressive witnesses and both were
evasive and inconsistent at times, and the testimony of the
other witnesses was generally favorable to the party who
called them. I have concluded that the following recitation
is a probable and logically consistent synthesis of the credi-
ble portions of confused testimony, replete with failures of
recollection and variations of sequence, about a confused
incident described in varying degrees of candor and com-
pleteness by the witnesses thereto.' Testimony to the con-
trary is discredited.
When Freeland '" called to the employees, who then were
returning to work from their morning break, he requested
them to come to the front of the shop. It appears that all
but one employee then came to the front.' Although some
6 Crystal Cash, Rebecca Clements, Albertha Curry, Charlotte Daye. Joan
Massingill, Magnolia Mays, Marliese Nieves, Mary Patton. Rose Thomas.
Diana Whitmore, Denise Wilcox, Beadell Wilson.
7All cards are unambiguous authorizations for the Union to act as the
signers' exclusive collective-bargaining representative.
I Pishko's reluctance to concede the presentation of the recognition agree-
ment is inexplicable and displays a degree of evasion that is also present in
other portions of his testimony.
9 Of the witness testifying on the events of that morning, Crystal Cash was
the most spontaneous, direct,. and believable. She impressed me as one care-
fully testifying as best she recalled without evasion or invention.
o1 Freeland did not testify.
' I credit those several witnesses who testified that the employees did not
hase their coats with them when they arrived. and that employees did not get
920
MARTIN ARSHAM SEWING C O.
witnesses may have construed his words as a call to strike. I
do not believe that he used the word "strike." or said that
they were "going out."': When Freeland made this an-
nouncement, Arshp.m told him to leave and unsuccessfully
attempted to push Freeland toward the exit." In the mean-
time the employees were gathering around Pishko, Free-
land, and Arsham. Some arrived in the midst or at the end
of the conversation that ensued. Pishko and Arsham reiter-
ated what they had said to each other in the office with
regard to the employees' need and desire for a Union and
the Union's request for recognition, including Arsham's ex-
pressed need to contact his attorney, and Pishko and/or
Freeland again requested recognition. Plant Manager Eva
Williams, who was somewhat excited and confused by the
goings-on, generally inquired what was happening and who
started it, then asked Albertha Curry who had signed the
cards. Curry refused to say, and Williams then asked Bea-
dell Wilson if she had signed a card. Wilson replied that she
had, whereupon Williams told her to get her coat and hat
and leave with the union agent. Wilson did not then leave.
and Arsham and the union representatives briefly contin-
ued to express their views. Finally. Arsham stated that
whoever signed the cards could get their coats and leave,
that the door swung both ways, and the employees could
leave with the Union or stay and work. Freeland then said
"get your coats," and Pishko, Freeland, and 12 employees'4
left the shop. Pishko altered some existing picket signs,
which Nack had in his car, to reflect the employees were
striking Arsham to protest unfair labor practices, and pick-
eting of the premises began.
After the picketing began, hostilities grew between those
who picketed and those who did not. On or about April 14,
striker Nieves and her small son kicked the car of non-
striker Marinkovic as she left work, inflicting no visible
damage, and Nieves held up her fist, cursed Marinkovic,
and threatened to kill her.'' On May 3, Charlotte- ---
'6 swore at Marinkovic and shook a chair at her which
was taken away be David Nack, who also pulled Daye
away. I also believe that at one time Nack cursed Arsham
and told him that he would shove Arsham's camera up
Arsham's rear. Arsham was taking a picture of Nack at the
time.
On April 26, Arsham was escorting an employee into the
plant when Pishko joined them and excoriated the em-
their coats to leave until the end of the group meeting. This is confirmed by
the testimony of Eva Williams to the effect that it was after all the other
conversations that employees were told to get their coats. There was consid-
erable testimony that Arsham and the union agents told the employees to get
their coats at the end of the meeting. Had they already procured their coats.
this instruction would not have been necessary. Furthermore, I do not be-
lieve that Freeland told the employees to bring their coats to the front when
he first called them because they did not do so.
'2 He may have said, as Nieves stated in her pretrial affidavit, "let's go,"
but I view this as an adjuration to hasten. rather than as a stnke call.
Arsham does not claim Freeland used the word "strike."
al The order to leave and the push of Freeland are not alleged as unfair
labor practices.
14Crystal Cash, Rebecca Clements. Albertha Curry. Charlotte Daye.
Wilma Jones, Beadell Wilson, Denise Wilcox, Diana Whitmore. Sarah
White, Ann Patterson, Marliese Nieves, and Joan Massingill.
1 I credit Marinkovic and employee Prince on this incident, and Marinko-
vic on the May 3 incident.
" 1 presume Charlotte Daye, a striking employee.
ployee because she was working during the strike. As the
three proceeded toward the plant, Nack approached. There
was some pushing between Pishko. Arshami. and Nack.
During this melee. Arsham struck Nack in the head with
his fist. It is not clear whether he intended to hit l'ishko and
missed, or swung around Pishko in order to hit Nack. m-
ployee Nieves witnessed Arsham striking Nack.
B. (oncltlding, Finding.
Although an inference may be drawn that the Unlion and
the employees were prepared to strike if recognition w.as
not quickly forthcoming. rather then walking out at Free-
land's first call to gather. the employees stood in the shop
listening fr the outcome of the dialogue between Arshami
and Pishko for about 10 minutes. I have no doubt that no
strike would have occurred then had Arsham granted rec-
ognition. Arsham's refusal to recognize and bargain was
not, however, the precipitating cause of the walkout. tis
statement that all who signed cards could leave. immedi-
ately following Williams' coercive interrogation of Curr,
and Wilson and her instruction to Wilson to leave with the
union agent." is a plain statement of termination of em-
ployees because they signed union cards, and violates Sec-
tion 8(a)(3) and (I) of the Act. Furthermore, his statement
to the employees that their options were leaving with the
Union or staying to work was in agreement with, and an
adoption of, Williams' instruction to Wilson, and clearly
gave them the choice of abandoning the Union as their
representative or leaving the premises, thereby conditioning
continued employment on such abandonment. Respondent
could not impose such a choice on its employees without
violating the Act, and when the employees elected to leave
rather than forsake the Union, they were constructivel3 dis-
charged"' in violation of Section 8(a)(3) and ( ).
The congregation of all employees, but one, prior to the
walkout can hardly be characterized as a strike. Respon-
dent never directed the employees to return to work and, in
effect, condoned their gathering by addressing it, together
with the union agents. about the pros and cons of unioniza-
tion. Those who were not union supporters were in the
group, and it is not suggested, nor do I believe. that they
were on strike. The strike began only after Arsham dis-
charged the employees. That there may have been a strike
absent Arsham's action is a question whose resolution was
prevented by Arsham's statement directing his employees
to leave. It is also possible that some other solution, short of
a strike, may have been reached. I agree with the General
Counsel that any uncertainty on this point must rest with
Respondent rather than with the employees or the Union.:"
Accordingly. I am persuaded that Crystal Cash. Rebecca
Clements. Albertha Curry, Charlotte Dave. Wilma Jones.
Beadell Wilson, Denise Wilcox, Diana Whitmore. Sarah
White, Ann Patterson. Marliese Nieves. and Joan Mas-
singill were discharged in violation of Section 8(a)(3) and
(1) of the Act.
' Pishko did not testify on this incident.
' All of these incidents violated Sec. 8(a 1) of the Acl.
I' Ra-Rich Manufacturing Corporation, 120 NLRB 503. 505 507 195)8
2 Viele Sons. Inc.. 227 NLRB 1940, 1945 (1977)
921
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I further find that the strike was caused by the unlawful
discharges and was, therefore, an unfair labor practice
strike.
Rose Thomas, G!oria McCoy. and Magnolia Mays were
on sick leave on April I I, and Mary Patton was on personal
leave that day. All credibly testified that they did not return
to work because the other employees were on strike." I am
satisfied that they joined the strike and became unfair labor
practice strikers. I do not, however, agree with the General
Counsel that they, like the other 12, were discharged dis-
criminatorily. Eva Williams directly asked Patton to return
to work, and I do not believe the evidence warrants a find-
ing that Thomas, McCoy, or Mays would not have been
permitted to work had they so elected.
When the Union requested recognition, 12 of the 22 em-
ployees stipulated in the appropriate unit had signed valid
authorization cards. If, as I have found, Gloria McCoy and
Rose Thomas were members of the unit on April I I, the
Union had secured 14 cards in a unit of 24. In either case,
the Union had been designated by a majority of the unit
employees as their exclusive collective-bargaining repre-
sentative when it requested recognition on April II1. Re-
spondent's unfair labor practices of April I, particularly
the discharge of 12 employees, had on obvious tendency to
undermine the Union's majority strength, and did create an
atmosphere in which a fair and free election could not be
held. I find that Respondent violated Section 8(a)(5) of the
Act by its refusal to recognize and bargain with the Union
"while coterminously engaging in conduct which under-
mined the Union's majority status and prevented the hold-
ing of a fair election." In these circumstances, a bargain-
ing order effective April 11, 1978, is necessary to protect the
employees' statutory right to select their own collective-bar-
gaining representative, and to be free from restraint or coer-
cion in the exercise of that right.
Although it appears that there was some mutual shoving
and pushing between Arsham, Pishko, and Nack on April
26, I do not believe it can fairly be inferred that it escalated
to the point where Arsham's punching of Nack was justified
by either the necessity for self-defense or the degree of
provocation suffered by Arsham. Whether Arsham in-
tended to hit Pishko or Nack is of no consequence. Had he
hit Pishko my conclusion would be the same. The unwar-
ranted punching of a union representative in the presence
of observing employees demonstrated to employees the in-
tensity of Arsham's hostility toward the Union and reason-
ably tended to coerce them in the exercise of their Section 7
rights. Arsham's action in striking Nack violated Section
8(a)(1) of the Act.
In its answer to the complaint, Respondent contended, as
an affirmative defense, that because it had engaged in ex-
tensive acts of restraint and coercion, the Union should not
be entitled to majority status, absent a Board certification
pursuant to an election, Respondent does not address this
contention in its post-trial brief, and I am persuaded that
the evidence relating to picket line misconduct adduced be-
21 All four had signed union cards prior to April I.
22 Trading Port. Inc., 219 NLRB 298, 301 (1975).
23 At least Nieves and the employee being escorted viewed it.
fore me does not rise to the level of a Laura Modes2 4 de-
fense. Accordingly, this affirmative defense is rejected.
Upon the foregoing findings of fact and conclusions
based thereon, and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for collective bargaining:
All production and maintenance employees, excluding
all clerical and professional employees, guards. and su-
pervisors as defined in the Act.
4. At all times since April 10, 1978, and continuing to
date, the Union has been the exclusive representative of all
the employees within said appropriate unit for purposes of
collective bargaining within the meaning of Section 9(a) of
the Act.
5. The Union requested recognition as the exclusive col-
lective-bargaining representative of Respondent's employ-
ees described in paragraph 3 above on April 11. 1978. and
Respondent refused the Union's request the same date.
6. By coercively interrogating employees about their
union activities and those of other employees, Respondent
has violated Section 8(a)( 1) of the Act.
7. Respondent violated Section 8(a)(1) of the Act by
physically striking a union representative in the presence of
employees.
8. By discharging Crystal Cash, Rebecca Clements, Al-
bertha Curry, Charlotte Daye, Wilma Jones. Beadell Wil-
son, Denise Wilcox, Diana Whitmore, Sarah White, Ann
Patterson, Marliese Nieves, and Joan Massingill because of
their union sympathies and activities, Respondent has vio-
lated Section 8(aX3) and (1) of the Act.
9. By refusing to recognize and bargain with the Union
on April 11, 1978, and coterminously and thereafter engag-
ing in the above-described violations of Section 8(a)(3) and
(I) of the Act for the purpose of undermining and destroy-
ing the Union's majority status, Respondent violated Sec-
tions 8(aX5) and (1) of the Act.
10. The violations of Section 8(a)(3) and (I) found herein
had a tendency to undermine the Union's employee sup-
port, made a fair election impossible, and warrant the issu-
ance of a bargaining order.
II. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
12. The strike by Respondent's employees beginning
April 11, 1978, was caused by Respondent's unfair labor
practices and was an unfair labor practice strike.
13. Rose Thomas, Gloria McCoy, Magnolia Mays, and
Mary Patton became unfair labor practice strikers when
they were scheduled to return to work, but elected to honor
the picket line, and they are entitled to reinstatement upon
2
4 Laura Modes Company, 144 NLRB 1592 (19%3).
922
request pursuant to the usual procedure relating to unfair
labor practice strikers.
TIlE REMIl)Y
To remedy the unfair labor practices found herein, my
recommended Order will require Respondent to cease and
desist from further violations, to post an appropriate Notice
to Employees, and to offer unconditional reinstatement to
Crystal Cash, Rebecca Clements. Albertha Curry. Charlotte
Daye. Wilma Jones, Beadell Wilson. Denise Wilcox. Diana
Whitmore. Sarah White. Ann Patterson, Marliese Nieves
and Joan Massingill.2? and make them whole for all wages
lost as a result of' their unlawful discharge. with interest
thereon to be computed in the manner prescribed in F:. W.
Woolworth Compvany. 90 NLRB 289 (1950), and Florida
Steel Corporation. 231 NLRB 651 (1977).26 The General
Counsel's request that an interest rate of 9 percent should
be applied is denied.2 I also will recommend that Respon-
dent be ordered to recognize and bargain with the Union as
the exclusive collective-bargaining agent of the employees
in the unit found appropriate herein.
Pursuant to Section 10(c) of the Act. I hereby issue the
following recommended:
ORDER' 8
The Respondent. Martin Arsham Sewing Co.. Cleveland.
Ohio, its agents, officers, successors, and assigns, shall:
I. Cease and desist from:
(a) Discouraging membership in the Union, or any other
25 Respondent made valid offers of reinstatement to Beadell Wilson, Re-
becca Clements. and Wilma Jones on September 19. 1978. September 27.
1978, and October 5 1978, respectively.
At the hearing. Respondent offered to prove. through one of its attorneys.
that an unconditional offer was made to the Union. at a meeting, on April
13. 1978, so as to put all of the employees back to work, and that the Union
rejected that offer unless Respondent would recognize the Union. The meet-
ing was held between the parties in response to advice from Respondent that
it intended to seek a temporary restraining order and an injunction against
the picketing. I denied the offer to prove. In so doing. I erroneously ruled
that an offer of reinstatement made to the Union would not be a valid offer.
See, e.g.. Gladwin Industries. Inc., 183 NLRB 280-281 (1970). 1 am, however.
of the opinion that my ruling on the offer to prove was warranted because
the meeting was in the nature of a settlement discussion as indicated by the
reason for the meeting and the offer of proof itself. ("the Union rejected that
offer unless the Company would recognize the Union") and in any event, the
question of reinstatement and offers thereof may be deferred properly to the
compliance stage of this proceeding.
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
" Florida Steel, supra.
A In the event no exceptions are filed, as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
MARTIN ARSHIAM SEWIN(; CO.
labor organization. by discharging employees or otherwise
discriminating in any manner in respect to their tenure of
employment or any term or condition of employ ment.
(hb) Refusing to recognize and bargain with the Union as
the exclusive collective-bargaining representative of all Re-
spondent's employees in the above-described appropriate
unit.
(c) ('oercively interrogating emploees concerning their
and other employees' union activities and desires.
(d) Physically striking union representatives in the pres-
ence of employees.
(e) In any other manner, interfering with. restraining. or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action. which will effec-
tuate the purposes and policies of the Act:
(a) Upon request, recognize and bargain with the Union
as the exclusive representative of all employees in the afore-
said appropriate unit and, if an understanding is reached,
embody such understanding in a written, signed agreement.
lb) Offer to Crystal Cash, Rebecca Clements, Albertha
Curry. Charlotte Daye. Wilma Jones. Beadell Wilson, De-
nise Wilcox. Diana Whitmore. Sarah White, Ann Patter-
son. Marliese Nieves. and Joan Massingill immediate and
full reinstatement to their former positions, or substantially
equivalent jobs if those positions no longer exist, without
prejudice to their seniority or other rights and privileges.
and make them whole for any loss of earnings they may
have suffered by reason of the discrimination against them.
in the manner set forth in the section of this Decision enti-
tled "The Remedy."
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records and reports and all other records required to
ascertain the amount, if any. of any backpay due under the
terms of' this recommended Order.
(d) Post at its Cleveland. Ohio. offices and facilities. cop-
ies of the attached notice marked "Appendix. " : Copies of
said notice. on forms provided by the Regional Director for
Region 8, after being signed by Respondent's authorized
agent. shall be posted by it immediately upon receipt
thereof. and be maintained by it for 60 consecutive days
thereafter, in conspicuous places. including all places where
notices to employees customarily are posted. Reasonable
steps shall be taken by Respondent to insure that these no-
tices are not altered, defaced, or covered by other material.
(e) Notify the Regional Director for Region 8. in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply with this Order.
n In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
923