Munsingwear, Inc.

National Labor Relations Board - Board Decisions

Nov 18, 1964

149 N.L.R.B. 839 (N.L.R.B. 1964)

HOLLYWOOD VASSARETTE DIV. OF MUNSINGWEAR, INC. 839
Hollywood Vassarette Division of Munsingwear , Inc. and Tex-
tile Workers Union of America , AFL-CIO
Hollywood Vassarette, a Division of Munsingwear, Inc. and Tex-
tile Workers Union of America , AFL-CIO, Petitioner. Cases
Nos. 13-CA-5918 and 13-RC-9666. November 18, 196,
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
On May 28, 1964, Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices within the meaning
of the National Labor Relations Act and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the attached Decision. The Trial Examiner further found that
the Respondent had not engaged in certain other unfair labor prac-
tices alleged in the complaint. The Trial Examiner recommended
that objection No. 6 filed by the Union in Case No. 13-RC-9666 be
overruled and that the result of the election be certified.' There-
after, the Charging Party filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent filed cross-
exceptions and a brief in support of its cross-exceptions and in
answer to the exceptions and brief of the Charging Party.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the cross-exceptions, the briefs,
and the entire record in these cases, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, with the
modifications herein set forth.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts, as its
Order, the Order recommended by the Trial Examiner, and orders
that the Respondent, Hollywood Vassarette Division of Munsing-
1 By Decision and Order dated January 14, 1964 , the Board overruled all the other
objections to the election, which the Petitioner lost.
149 NLRB No. 77.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wear, Inc., its officers, agents , successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order, with
the following modifications :
1. Delete the words "union matters" from paragraph 1(b) of the
Recommended Order and the second indented paragraph of the
notice,2 and substitute the following : "their membership in or activi-
ties on behalf of Textile Workers Union of America, AFL-CIO, or
any other labor organization of our employees."
2. Delete the paragraph of the notice immediately following the
last indented paragraph, and substitute the following paragraph :
"All our employees are free to become or remain, or refrain from
becoming or remaining, members of Textile Workers Union of Amer-
ica, AFL-CIO, or any other labor organization, except to the extent
that this right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as author-
ized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959."
[The Board certified that a. majority of the valid ballots cast in the
election of October 16, 1963, was not cast for Textile Workers Union
of America, AFL-CIO, and that the said Union is not the exclusive
representative of the employees at the Chicago, Illinois, plant of
Hollywood Vassarette, a Division of Munsingwear, Inc:, in the unit
found by the Board to be appropriate.]
2 The address and telephone number for Regional Office 13, as listed at the bottom of the
notice, is amended to read: "881 U . S. Courthouse and Federal Office Building , 219 South
Dearborn Street, Chicago , Illinois, Telephone No. 828-7572."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
In Case No. 13-CA-918 the General Counsel issued a complaint on November 29,
1963, based upon charges filed by Textile Workers Union of America, AFL-CIO,
herein called the Union.' The complaint, as amended at the hearing , alleges that
Hollywood Vassarette Division of Munsingwear , Inc., herein called Respondent or
the Company, interfered with, restrained, and coerced employees in violation of
Section 8(a)(1) of the Act and that it discriminatorily discharged and has refused
to reinstate one of its employees in violation of Section 8(a)(3) and (1) of the
Act. In its answer , Respondent denied the commission of the unfair labor practices.
Case No. 13-RC-9666 was consolidated with the complaint proceeding pursuant
to the Board 's Decision and Order dated January 14, 1964. The Board found therein
that one of the objections ( objection No. 6) filed by the Union ( Petitioner in that
case ) to the election conducted October 16, 1963, raised a credibility issue which
should be resolved on the basis of a hearing . Hearing in the consolidated proceed-
ing was thereafter held before Trial Examiner Samuel L. Singei in Chicago, Illinois,
on January 21 through 23, 1964. All parties appeared and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses , and to introduce rele-
vant evidence . Briefs received from all parties have been fully considered.
I The original charge was filed on October 4 and the amended charge on October 30, 1963.
HOLLYWOOD VASSARETTE DIV. OF MUNSINGWEAR, INC. 841
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE 13USINESS OF THE COMPANY ; THE LABOR ORGANIZATION INVOLVED
Respondent , a Delaware corporation , with its principal office and place of business
in Chicago , Illinois, is engaged in the manufacture of women 's foundation garments.
During the calendar year 1962, a representative period , Respondent shipped goods
valued in excess of $ 50,000 directly to points outside Illinois. I find that at all times
material herein Respondent has been and is engaged in commerce within the mean-
ing of the Act.
Textile Workers Union of America , AFL-CIO, is a labor organization within the
meaning of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES AND THE OBJECTION
TO THE CONDUCT OF THE ELECTION
The substantive issues in the unfair labor practice case are: ( 1) Whether Respond-
ent announced and granted its employees improved pension and economic benefits
during the Union 's organizational drive in order to induce them to reject the'Union;
(2) whether Respondent engaged in surveillance and interfered with its employees'
union activities by attendance of one of its supervisors at a union meeting; (3)
whether the same supervisor coerced the employees by threatening them with physi-
cal harm unless permitted to attend the meeting ; ( 4) whether Respondent coercively
interrogated and threatened an employee ; ( 5) whether Respondent threatened an
employee with reprisal if she attended a scheduled Board conference to discuss the
eligibility list in the forthcoming election ; and (6 ) whether Respondent discrimina-
torily laid off and refused to reemploy one of its employees.
In the representation case, herein involving only objection No. 6, the issue is
whether Respondent , by the alleged threat mentioned in (5) above , interfered with
the election.
A. The unfair labor practice case
1. Background ; the Union 's organizational drive and the
representation proceeding
Munsingwear , Inc., has 18 plants grouped into three main operating divisions, i.e.,
women 's hosiery division , men's and boys ' division , and women 's apparel (bra and
girdle) division . The Hollywood Vassarette plant in Chicago , the only plant here
involved, is part of the women 's apparel division . Of the 18 plants, 5 are unionized,
4 of them ( 3 in Minnesota and 1 in Wisconsin ) by Textile Workers, the Union
herein .2 Respondent's home office is in Minneapolis.
George W. Smith , a union representative , began organizing Respondent 's plant in
Chicago in December 1962 by distributing a handbill . He later made house calls
on employees and conducted meetings , the first in the middle of March 1963 , attended
by six employees . 3 The next meeting was held in April, attended by approximately
15 employees , and a third on May 22 with about 35 employees;, four or five meetings
were thereafter held, the last on October 14. In April or May, Smith, assisted by
other paid organizers , increased the tempo of the organizational drive in line with
the Union 's decision to place the campaign under its industrial union department.
As part of this campaign , the Union began to distribute handbills once every 2 weeks
and then once a week.
On September 3 the Union filed its petition for representation election. On Sep-
tember 27 Respondent and the Union entered into a stipulation for consent election
on the basis of which an election was held on October 16. The Union lost the elec-
tion by a vote of 74 to 135 with 12 challenged and 1 void ballot.
Harold Diersen , the Company 's plant manager at Chicago (he is also manager of
the Princeton, Illinois, plant), testified at the hearing that after September 3, the date
the election petition was filed, the Company embarked on a "counter -campaign to
the campaign [of] the Union" by telling "our side of the story " in speeches and let-
ters to the employees . Among other things , Dierson told the employees why the
2 The fifth plant is located In Oklahoma.
8 Unless hereafter otherwise stated , all date references are to 1963.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"company does not want a union" and "why we think you should not want a union
here." Dierson pointed out the "many" benefits the employees already had (vaca-
tions, pension, health, holidays, etc.) which, he emphasized, compared favorably
with those in other plants in the area, including union plants. While stressing that
the "Company has a very important stake in this election," Dierson nevertheless
assured the employees that the choice as to unionization was theirs to make and that
there would be no reprisals if they voted in the Union.
On October 21 the Union filed objections to the election, based in part on Dier-
son's letters and speeches which, the Union charged, contained unlawful threats and
promises of benefits and false and misleading information tending to interfere with
the employees' free choice of representatives On December 2 the Regional Director
issued his report on objections, recommending that these objections and others
raised by the Union (dealing with alleged employer surveillance, improper election-
eering, etc.) be overruled.4 The only objection not overruled (objection No. 6) was
based upon a remark by a supervisor on October 14, allegedly threatening an
employee with reprisal if she attended a scheduled Board conference to discuss the
election eligibility list on October 15. Finding that a question of credibility existed
as to whether the remark was in fact made, the Regional Director recommended
that this objection be resolved in the unfair labor practice proceeding herein in which
the incident involved is also alleged as a violation of Section 8(a)(1) of the Act.
On January 14, 1964, the Board issued its Decision and Order, approving all recom-
mendations of the Regional Director on the Union's objections.5
2. Alleged interference, restraint, and coercion
a. The changed pension and vacation benefits 6
Pension benefits: On May 14, Respondent announced to its employees at the Chi-
cago plant that the existing pension benefits would be increased from $40 to $42.50-
"an increase of 61/2%"-effective retroactively to March 15. At the same time it
announced a new company policy of mandatory retirement at age 65.7 The pension
plan had originally been inaugurated at Chicago in January 1961, having been
announced around the date it became effective. The plan had theretofore been in
operation in four other Munsingwear plants, Le, those in Minnesota and Wisconsin,
where the employees are represented by the Union.
Company Manager Dierson testified that the changes announced on May 14 were
the first changes made in the pension program. On the same day, Respondent
announced similar benefit changes in the four organized Minnesota and Wisconsin
plants, as a result of collective negotiations with the Union. It appears, and I find,
that the decision to effect the changes at Chicago was made at Respondent's Min-
neapolis home office and was first cleared by Plant Manager Dierson with company
counsel in Chicago in view of the pending organizational campaign at that plant.
Vacation benefits: On August 13, Respondent announced to the Chicago employees
improvements in vacation benefits. Effective with the 1964 vacation period beginning
June 1, 1964, employees were declared eligible to receive 3 weeks' paid vacations after
10 years' service instead of 3 weeks after 15 years as had previously been the rule.8
This was the first change in vacation benefits at Chicago since 1961, when the bene-
fits there had been changed from a 3-week benefit after 25 years to 15 years. The
3-week 10-year vacation policy had been in effect at the central plant in Minneapolis
since 1953 and apparently had been extended from time to time to other company
4In accordance with established Board practice, the Regional Director considered only
conduct after the petition was filed on September 3. See The Ideal Electric and Manu-
factorsng Company, 134 NLRB 1275.
5 The Board specifically reserved decision as to the possible impact of the alleged inci-
dent involved in objection No. 6 upon the election, stating that it was not "passing at
this time upon whether the incident . . . would, in the circumstances, be sufficient to set
aside the election herein, even though such incident may ultimately be found to be an
8(a) (1) violation."
6 The foregoing findings are almost entirely based upon documentary evidence and testi-
mony of company officials.
4 The changed benefits were put into effect at Princeton, Illinois, as well as at Chicago.
As already noted, both plants are under the same manager, Harold Dierson.
8 The new benefits were made applicable at Princeton as well as at Chicago
HOLLYWOOD VASSARETTE DIV. OF MUNSINGWEAR, INC. 843
plants. However, it is clear that the 3-week 10-year vacation policy is still not in
operation in the Munsingwear plants in Texas.9
The decision to put into effect the new vacation benefits, like the new pension bene-
fits, was made at the home office in Minneapolis . Plant Manager Dierson testified
that he himself had exerted pressure on the home office to expedite the decision soon
after his transfer from the Minneapolis office to Chicago in November 1961 so that
he personally might share in this benefit.10
Conclusions
It is quite true, as the cases cited by Respondent in its brief demonstrate , that an
employer is not foreclosed from announcing or granting economic benefits during a
union's organizational campaign or during the pendency of a Board election. "What
is unlawful under the Act is the employer's granting or announcing such benefits ...
for the purpose of causing employees to accept or reject a representative for collective
bargaining." Hudson Hosiery Company, 72 NLRB 1434, 1437. See N.L.R.B v.
Exchange Parts Company, 375 U.S. 405, 409. An employer's motive in introducing
or improving benefits is , however, often difficult to ascertain , for seldom is motive
established by admissions . By the same token, denials and self-serving declarations
are not to be credited merely because they were uttered. In each case, the motive
must be ascertained from the total stream of preceding and subsequent as well as
concurrent circumstances. N.L.R.B. v. Harbison-Fischer Manufacturing Co., 304
F. 2d 738, 739-740 (C.A. 5). "The test is whether the employer engaged in conduct
which, it may reasonably be said, tends to interfere with the free exercise of employee
rights under the Act." N.L.R.B. v. Illinois Tool Works, 153 F. 2d 811, 814
(C.A. 7).11
General Counsel contends that Respondent 's announcement and granting of the
pension and vacation benefits at Chicago were motivated and timed by desire to under-
mine the Union's pending organizational drive and defeat its entry into the plant.
Respondent insists that its action was prompted solely by legitimate economic con-
siderations-as a normal part of the Company 's established policy of equalizing bene-
fits at its various locations . On the basis of the whole record, I must conclude that
Respondent's action was at least in substantial part motivated by the union activities
of its employees and, therefore , that its conduct was violative of the Act.12
The timing of economic benefits is , of course , a significant factor in determining
whether an employer is making use of them to thwart union organization . Greenfield
° A company Interoffice memorandum dated May 16 (Respondent's Exhibit No. 3) in-
dicates that Respondent had given consideration to extending the new vacation benefits
to its Texas ( unorganized ) plants around the same time it was considering putting them
into effect in Chicago , but the benefits were not established in Texas . The same memoran-
dum indicates that the Company originally Intended to grant a $1,000 life insurance policy
together with the vacation benefits as a "trade " for the Christmas bonus theretofore
granted the employees. hIowever, the new vacation policy was adopted at Chicago with-
out any action on either the Christmas bonus or the insurance policy. Donald Ghent, an
official of Munsingwear , testified that action on the latter was held in abeyance because
"of a number of things that were happening , one being a change in insurance [ carrier]
during this period of time, and , secondly , because I felt that we ought to undertake the
entire benefit study throughout the Company which we are now doing before any further
substantial changes were made."
1° As already noted , the 3 weeks after 10 years vacation policy had been in effect in
Minneapolis prior to 1961 and Dierson wanted to continue enjoying this benefit Dierson
testified that his first request to change the benefit was made "at least prior to December
1962 "
11 See also The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H.
Bull Steamship Company ) v. N.L R.B., 347 U.S. 17, 44 ( specific evidence of subjective in-
tent is "not an indispensable element of proof of violation") ; N.L.R.B. v. Erie Resistor
-Corp ., et al., 373 U.S . 221, 227 ("the natural foreseeable consequences of certain action
may warrant the inference") ; N.L.R.B. v. Exchange Parts Company , 375 U.S. 405, 409
( the test is whether the conduct "is reasonably calculated " to coerce employees).
12 Cf. N.L.R.B. v. Whitin Machine Works, 204 F 2d 883, 885 ( C.A. 1). "In order to
supply a basis of Inferring discrimination , it is necessary to show that one reason for the
[action] is that the employee [ s] [were] engaging in protected activity . It need not be
the only reason but It Is sufficient if it is a substantial motivating reason, despite the fact
that other reasons may exist."
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Components Corporation, 135 NLRB 479, 487. Cf. Revere Camera Co. v. N.L.R.B.,
304 F. 2d 162, 166 (C.A. 7). Respondent announced the increased pension benefit on
May 14 and made it retroactively effective to March 15. It announced the improved
vacation benefit on August 13, to become effective the next year. The changes in both
benefits were the first made at the plant in 2'/z years. The question remains why did
Respondent choose that particular time to promulgate the benefits? The record
shows that the Union's campaign was just about getting underway in April and May.
Handbilling was intensified at that time, the campaign having come under the direction
of the Union's industrial department. On September 3, within 3 weeks of the vacation
benefit announcement, the Union filed its election petition. In view of the widespread
handbilling there is no doubt that Respondent was well aware of the increased tempo
in the organizational drive 13 and that its choice of this particular time to announce
the vacation benefit far in advance (almost a year) before its effective date, was no
mere coincidence, but was intended to wean the employees from the Union.14 As to
the pension announcement, it is apparent that this, too, was not coincidental but was
likewise timed to coincide with the announcement of the same benefit at Respondent's
four organized Minnesota and Wisconsin plants (where the benefit was secured for
the employees after negotiations with the Union) in order to prove "to the employees
that there is no necessity for a collective bargaining agent." (May Department Stores
d/b/a Famous-Barr Company v. N.L.R.B., 326 U.S. 376, 385). I so find.15
The Company's preelection propaganda also provides added support to the inference
that it was the appearance of the Union which triggered and prompted the promulga-
tion of the economic benefits. Plant Manager Dierson's letters and speeches disclose
that he predicated his appeal to the employees in the "counter-campaign" mainly on
the theme that a union was unnecessary and of no value to them because "many of
the things they promised you, you already have." Dierson concentrated on the vari-
ous benefits the Company had introduced without a union, including the increased
pension and vacation benefits here under discussion. Thus, in his speech of October 1,
Dierson told the employees that even if a union came in, it "can do nothing for you
that we have not done or are not doing for you"; that the "union can only get for you
what the Company agrees to give"; and that the Company "does not even have to
offer what you alreday have." And in his letter of the same date (October 1) Dierson
remarked that "It is the Company-not the union-that provides your job, your pay,
your vacation ... your pension and the many other benefits...." Strikingly similar
employer statements led the Supreme Court to observe in Exchange Parts, supra, that
the "[e]mployees [were] not likely to miss the inference that the source of benefits
now conferred is also the source from which future benefits must flow and which
may dry up if it is not obliged." 375 U S. 405, 407, 409. The only reasonable infer-
ence I can draw, upon the total record presented, is that Respondent announced the
increased benefits when it did as a potent weapon to combat the Union in the election
campaign.16
13 Plant Manager Dierson in one of his speeches to the employees (October 1) admitted
that he had seen "all the bulletins that have been handed out" by the Union.
14 It is noteworthy that in the past-prior to the period here involved-the Company
had announced new benefits (e g , the pension plan introduced January 1961 and the
accident and health program inaugurated July 1961) on the dates they became effective.
Dierson could not recall when the announcement of the 1961 change in vacation benefits
was made.
15 The increased pension change was not made at any other plant, except at Princeton,
Illinois. I find no particular significance in Respondent's extension of the benefit to
Princeton (a nonunion plant) in view of the fact that the plant appears to be under the
administrative control of Harold Dierson who is in charge of both plants. Insofar as it
appears, benefits extended in prior years were simultaneously extended in both plants.
161 am fully cognizant of the fact that the Regional Director in his report on objec-
tions held Respondent's communications to its employees to be within the limits of free
speech and argument since they did not contain any explicit threats or promises But this
factor does not preclude consideration of the communications herein as "background
against which to measure . . . conduct . . by other management spokesmen, especially
in terms of the interpretation which the employees reasonably could put on such actions."
Hendrix Manufacturing Company, Inc. v. NLRB , 321 F. 2d 100, 103-104 (C. A. 5).
Similarly, the fact that the speeches and letters were enunciated subsequent to promulga-
tion of the benefits, does not rule them out from consideration. For, "statements, reflect-
ing the attitude of the company toward the union at a period closely following the date
of [the conduct in question] indicate what its attitude undoubtedly was immediately
preceding that event." Angwell Curtain Company, Inc. v. N L.R.B., 192 F. 2d 899,
903 (CA. 7).
HOLLYWOOD VASSARETTE DIV. OF MUNSINGWEAR, INC. 845
Finally, I cannot accept Respondent's contention that any inference of unlawful
motivation that may be drawn from its actions is necessarily dispelled by the alleged
circumstance that the benefits were extended at Chicago as part of a systemwide com-
pany program to equalize these benefits-a practice allegedly established long before
the advent of the Union at that plant. In the first place, Respondent produced no
evidence, other than the self-serving testimony of its officials, that such program had
existed. While Respondent introduced in evidence several interoffice memorandums
referring to an alleged equalizing policy respecting pensions and vacations, none of
these antedate the organizational drive.17 Furthermore, the key issue here is the
timing of the benefit, whether or not it was part of a "practice" or "program"; and
there is no evidence of existence of any time factor in any alleged "practice" or "pro-
gram ." Moreover, Respondent's actual experience with the pension program demon-
strates that this program had been installed in only 6 of its 18 plants.ls Even the vaca-
tion program is not compleetly uniform in the Munsingwear complex. And the
record is clear that other "fringe benefits" likewise vary from plant to plant "within
the discretion of the Company."
Accordingly, under all the circumstances, I reject Respondent's contention that
the announcement and granting of the pension and vacation benefits here in question
at Chicago represented but an implementation of an existing companywide policy to
bring the benefits at that plant in line with those prevailing at other plants. I find
that Respondent's actions respecting these benefits were at least in substantial part
designed to induce the employees at Chicago to reject the Union and, therefore,
that this action on its part constituted interference, restraint, and coercion within
the meaning of Section 8(a)( I) of the Act.
b. The May 22 incident
The Union's May 22 meeting was held at the Round Robin Restaurant, located
directly across the street from the plant, just after 4 p.m., quitting time. Invitations
to attend were mailed to the employees' homes. Before the meeting began, George
Smith, the Union's organizer, stood outside the plant gate encouraging employees
to attend. Later, as he walked across the street to the meeting, he was joined by
Myron Bojszuk, Respondent's assistant warehouse manager, who was headed the
same way. Smith asked him if he was a supervisor. Bojszuk stated that he was,
adding that he had received a letter inviting him to attend the meeting. Smith told
Bojszuk that as a supervisor he could not attend "any of our meetings." Bojszuk
replied that he "got an invitation and by God he was going to attend the meeting."
When Smith asked to see the letter of invitation, Bojszuk showed it to him. Smith
stated that if a letter was sent him, it was a "mistake" for which he "apologized."
Bojszuk insisted that he had the right to attend the meeting and entered the
restaurant.
In the meantime, some of the employees had arrived at the restaurant and entered
a room in the rear where the meeting was to take place. This room was separated
from the barroom and the restaurant area proper by a folding door. When Smith
and Bojszuk came within 10 to 15 feet of the folding door (which was open), they
stopped and continued their conversation. They were then joined by two other union
organizers' (John Clansik and Steve Fisher) and the conversation continued for
about 5 minutes, Bojszuk still insisting that he had received an invitation and would
attend the meeting and exclaiming that "nobody was going to stop him." Smith then
motioned to Alex Bowie, another union organizer, who was inside the meeting room
with about 35 employees seated at a table about 15 feet beyond the folding door
waiting for the meeting to begin. When Bowie arrived, Smith asked him to speak to
Bojszuk, which he did. Fisher and Clansik returned to the meeting room to "calm"
the employees, who by this time had become restless.
17 The earliest documents referring to a uniform benefit program on these matters are
two memorandums dated May 13 and 16, 1963, dealing with the extension of pension bene-
fits at Chicago and Princeton "in line with the benefits" in Minneapolis and the Introduc-
tion of the vacation benefits and life insurance at this plant and also at the Texas plants
as a "trade off" for the Christmas bonus. The only memorandum antedating the organiza-
tional drive in evidence is a memorandum dated April 24, 1961 , dealing with the extension
of sick benefits at Chicago and Princeton.
18 Company Manager Dierson suggested that the pension program had not yet been in-
stalled in many plants because they, had not "become of age," i e., "not yet old enough
["usually" 15 years] to make the pension plan worthwhile." Respondent introduced no
evidence, however, showing the "age" of the 14 plants in which the program is not in
existence.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bowie asked Bojszuk to sit down at a table with him in the barroom area near
the folding door and asked him what the "problem" was. Brandishing the letter in
his hand, Bojszuk declared, "I am demanding that I get into this meeting on account
that I have a notice to attend this meeting." Bowie pointed out that "the letter
was only a form letter" and explained why he could not attend the employees' meet-
ing.10 After 5 or 10 minutes of continued discussion, Bowie finally convinced
Bojszuk to leave and the latter agreed to do so. Several employees passed by the
group during the discussion. Bojszuk admitted seeing one employee (Willie Hoppi)
converse with Smith According to Bojszuk, he quickly turned his back to him "so
he [the employee] wouldn't feel guilty." 20
As Bojszuk started to leave, Charles J. Chaikulas, another union representative,
entered the restaurant to go to the meeting. After Bowie and Smith reported to him
what had happened, Chaikulas asked Bojszuk to have a drink with him at the bar.
Bojszuk agreed to do so. Chaikulas explained to Bojszuk why he, as a supervisor,
could not attend the meeting, and the two spoke about the Union and the Company.
This discussion lasted 10 or 20 minutes. In the meantime, Smith and Bowie returned
to the meeting room, closing the folding door behind them, and Smith proceeded
with the meeting. Bojszuk left the restaurant about 5 p.m. The meeting, which
commenced about 4:30, adjourned about 6 p.m.
The foregoing account is based largely on undisputed evidence. There is a sharp
dispute, however, as to other matters which allegedly transpired, including the ques-
tion whether Bojszuk, while conversing with Smith and Bowie, had threatened to get
a shotgun to enforce what he considered to be his "right" to attend the union meet-
ing. Bojszuk admitted making a remark about a gun, but insisted that he did so
only after an unidentified individual (whom he took to be another union organizer)
allegedly attempted physically to eject him from the restaurant and had made a
motion as if reaching for a weapon.21 Also in question is whether the Union actu-
ally sent Bojszuk a letter of "invitation," Bojszuk claiming that he had received one
and Smith (who addressed the letters) testifying that he did not recall sending him
one. Furthermore, there is conflicting testimony as to whether Bojszuk had at one
point crossed the folding door 2 or 3 feet into the meeting area. Finally, although
it is undisputed that Chaikulas had questioned Bojszuk as to whether the Company
had requested him to go to the meeting, it is disputed whether (as Chaikulas testi-
fied) Bojszuk refused to answer this question or (as Bojszuk stated) denied being
sent by anyone. In view of the conclusions herein reached, it is unnecessary to
resolve the testimonial conflict on these matters.
Conclusions
The law is settled, and Respondent apparently does not contest the proposition, that
attendance by management representatives at union meetings constitutes interference,
restraint, and coercion with the exercise of employee self-organizational rights, unless
the management representatives are expressly invited to attend. W. T. Carter and
Brother, et at., 90 NLRB 2020, 2061; Majestic Metal Specialties, Inc., 92 NLRB 1854,
1855; Crusader Lancer Corp. and R. D. Spickler Co., Inc., 141 NLRB 1309; Brook-
side Industries, Inc., 133 NLRB 842, 851, modified on other grounds 308 F. 2d 224
(C.A. 4). Cf. N.L.R.B. v. A. R. Gieringer Tool Corp., 314 F. 2d 359, 362-363
(C.A. 7). The basic question here posed is whether Bojszuk was a true invitee to
the May 22 meeting-a purely factual question. On the basis of the substantially
undisputed facts I find that he was not; and that Bojszuk himself so knew, or had
reason so to believe, before he entered the meeting place. Bojszuk admitted in his
testimony that Smith, the union organizer, had asked and even remonstrated with
him not to go to the restaurant. Smith explained that even if an "invitation" had
been sent to him, it was an unfortunate "mistake" because the meeting was a union
affair, closed to supervisory employees. Moreover, Bojszuk was on notice earlier
that day (May 22) that other supervisors had not been invited. According to Re-
spondent's own evidence, Bojszuk had checked with fellow supervisors earlier that
day to ascertain whether they had been invited to attend; and the other supervisors had
10 When asked "for the envelope that the letter was in," Bojszuk answered that he no
longer had it. Bowie then asked Smith if Bojszuk was on the mailing list and Smith re-
plied that he was not.
20 Smith testified that the incident took place while he talked to Bojszuk. He stated
that he had to grab Hoppi by the arm and assure him that "everything was all right" be-
fore Hoppi consented to remain at the meeting.
21 According to Bojszuk , he told the unidentified man, "If you want to wear [ I e., use] a
gun, I can do it, too."
HOLLYWOOD VASSARETTE DIV. OF MUNSINGWEAR, INC. 847
informed him that they had not been. That Bojszuk knew that the employees would
look upon his presence at the meeting with suspicion and fear appears from his own
testimony that when he entered the meeting place, over the objection of the Union's
representatives, he had to turn his back on an employee (Hoppe) "so he [the employee]
wouldn't feel guilty." Under all of the circumstances I find that Bojszuk-by per-
sisting in his "right" to attend the union meeting after being told the alleged "invita-
tion" held was a "mistake," by staying there for about 15 minutes and debating the
point in open view of the employees until finally prevailed upon to leave, and by
disrupting or attempting to disrupt or interfere with the union meeting and causing
a commotion therein-unlawfully intruded into the self-organizational rights of the
Company's employees and further engaged in unlawful surveillance of union activity,
in violation of Section 8(a) (1) of the ACt.22
I reject, however, General Counsel's further contention that Bojszuk, by threatening
to get a gun to enforce his "right" to attend the meeting, thereby threatened the
Company's employees with physical harm unless the Union permitted him to attend.
The uncontradicted evidence establishes that the threat, even if uttered, was directed
solely at the Union's paid organizers and was in the nature of a personal threat
against them . There is no evidence that any of the employees overheard the threat,
or that it was in any way directed at any of them or repeated to them. See M. Snower
& Company, Division of Opelika Textile Mills, Inc., 83 NLRB 290, 291; Marie T.
Reilly, d/b/a Reilly Carthage Company, 110 NLRB 1742, 1744-1745. On the con-
trary, neither of the two employees called by General Counsel who testified respecting
the May 22 incident, claimed that they heard the alleged threat and one of the two,
though stating she saw the participants, specifically denied hearing what was said
because she was "too far away."
I conclude that the record supports the allegation in the complaint that Respondent,
by its admitted supervisor and agent (Bojszuk), interfered with the employees' union
activity and engaged in unlawful surveillance of the May 22 union meeting. I further
conclude that the preponderance of evidence does not support the allegation that
Respondent coerced employees by threatening them with physical harm because the
Union sought to exclude Bojszuk from that meeting.
c. Interrogation of employee Thielen
As hereafter found, on May 22 Mary Thielen worked as a machine operator in the
returned goods department under the supervision of Irene Drews. Thielen testified
that just before quitting time on May 22 Drews approached her at work and asked
her if she was going to the union meeting that night. She said she was. Drews then
stated, "Any girls that are going to the meeting will have to sign up for the union"
and "if they do sign up , she'll want nobody working in her department that will."
Thielen testified that other girls in her department heard this conversation. She
stated , however, that this was the only conversation she had with Drews about the
Union.
Supervisor Drews admitted asking Thielen on the day in question, in the presence of
employee Harriet Jablonski, whether Thielen was going to the meeting. According
to Drews, Thielen replied, "If I do it's just to see" or "words to that effect." Drews
denied telling Thielen about having to sign up if she went to the meeting or saying
that she would not want any girl who signed up to -work in her department. She
admitted, however, that on another occasion-when a group of employees were
talking about union cards received by mail-she told the employees "in a kidding
way" to "be careful what you sign." On cross-examination, Drews could not recall
whether the latter remarks were made when she spoke to Thielen on May 22 or on
another occasion . Likewise, she was unable to recall "just who [she] said it to," but
she remembered that it was not said to girls in her department, though Thielen and
Jablonski "might have been there." 23
22 The instant case is thus distinguishable from cases relied on by Respondent wherein
there was no question, and the supervisors had no reason to believe, that the invitations
extended to them were not genuine Indeed, in one of them (Howard Aero, Inc, 119
NLRB 1531, 1534), the Board noted that the supervisors were eligible for union member-
ship and had been "welcomed" at the meeting In Brookside Industries, Inc., 133 NLRB
842, 847, 851 (reversed on this point 308 F. 2d 224, 225 (CA. 4)), the supervisors, al-
though initially uninvited, were expressly asked to remain, and the employer, on learning
of their actions, reprimanded them and instructed them not to do so again. There is no
evidence that Respondent herein took any steps to disabuse the employees of the coercive
effect of Bojszuk's attendance at the meeting.
s3 Called as a witness by Respondent, Jablonski did not testify on the matter in ques-
tion, becoming very upset upon taking the oath. She was excused on request of Respond-
ent's counsel
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I credit the unequivocal testimony of Thielen on the matters in issue in preference
to the vacillating testimony of Drews who was patently unsure of the events involved.
I accordingly find that Supervisor Drews' question to Thielen whether she was going
to attend the May 22 union meeting and her statement on the same occasion that she
did not want anyone who signed a union card to work in her department, constituted
unlawful interrogation and a threat of reprisal for engaging in union activity, in
violation of Section 8 (a) (1) of the Act.
d. The Maertens-Willard incident of October 14
Joan Willard has been employed by the Company for 5 years and during the period
here involved worked under the supervision of Martha Maertens. Active in support
of the Union, she had passed out cards and talked to other employees about the need
for a union.
At a union meeting -on Sunday, October 13, Willard and two other employees
(Sophie Nyczak and Sophie Pijanowski) were selected to go to the Board's Regional
Office on the following Tuesday (October 15) to check the list of eligible voters for
the election scheduled October 16. A conversation held by Willard with Maertens
the next morning (October 14) is the subject of sharp dispute. Willard's version of
it is as follows
Well, she [Martha Maertens] walked up to me about 7:25 in the morning and
I just was putting my purse and lunch away, getting ready to go to work, and
she looked at me, said, "Joan?" I said, "Yes." She said, "You're not going to
work tomorrow," I said, "How do you know I'm not going to work tomorrow."
She said, "Well, you're just not going to work tomorrow, you're going to the,
Labor Board tomorrow." I said, "Martha, how do you know that I'm going
to the Labor Board tomorrow?" She says, "Because I have a little bird to tell
me these things...."
Willard added that 10 minutes later Maertens "came back, started another conversa-
tion with me. She looked at me, said, `Joan?' I said, "Yes?' She said, `You better
think twice before you go.' "
On cross-examination, Willard recounted a third conversation with Maertens, in
which the latter allegedly told her that she would not get paid if she went to the Board.
Willard allegedly replied that she "did not care if I got paid or not, I was going."
Willard could not, however, recall whether this conversation took place the same
day (October 14) or some other time.
Maertens testified that she had only one conversation with Willard on October 14.
According to Maertens, Willard came up to her and said, "Martha, I won't be down
tomorrow. I have to go to the Labor Board, so are the other two Sophies [Nyczak
and Pijanowski]." Maertens replied, "Okay." Maertens denied knowledge of a
Board meeting the next day before learning of it from Willard, and also' denied the
remarks attributed to her by Willard about the "little birdie" and thinking twice be-
fore going to the meeting.
Maertens also testified that after talking to Willard she went to check with Sophie
Nyczak to see if she would be in to work the next day, and Nyczak said she would
not, explaining that she was "elected to go to the Board" and did not have "much work
anyway." Nyczak did not testify. Maertens also spoke with Sophie Pijanowski on
October 14. Called by General Counsel, Pijanowski testified that Maertens came to
her and said , "You are going to be off tomorrow," to which Pijanowski replied, "Yes."
According to Pijanowski, "That was the end of the conversation."
The following day (October 15) Willard and the "two Sophies" went to the Board's
Regional Office, driven there by George Smith , the union organizer . Smith and
Pijanowski both testified that while they were on the way, Willard told them that
Maertens had made the remark about thinking "twice" before going to the Board.
Smith recalled that she also mentioned the "little birdie" remark. Pijanowski also
testified the previous day at work Willard had said nothing to her about what Maertens
allegedly said. She further testified that she related to no one the remarks Willard
attributed to Maertens in the car. Smith could not recall whether he' had reported
these remarks to anyone prior to the election, stating, however, that "it's possible"
he did when making house calls on employees but that "it wouldn't be over half a
dozen people at the most" because the election was only a day away.
Conclusion-Resolution of Testimonial Conflict
I agree with the position of General Counsel and the Charging Party that Maertens'
remarks to Willard, if made as testified to by Willard, constituted interference,
HOLLYWOOD VASSARETTE DIV. OF MUNSINGWEAR, INC. 849
restraint, and coercion in violation of Section 8 (a)( 1 ) of the Act. A supervisor's
statement to a union observer at a Board election that she "think twice" before acting
in such capacity not only constitutes interference with freedom of choice of the em-
ployees in an election, but carries an implicit threat of reprisal if she undertakes that
function. However, based on the entire record, the inherent probabilities of the situa-
tion, and the comparative demeanor of the witnesses, I am persuaded that Maertens
did not in fact make the remarks attributed to her by Willard. I credit Maertens'
version of the incident and not Willard's.
Willard impressed me as determined, argumentative, and even belligerent, prone
to exaggerate in order to carry her point. She exhibited a remarkably good memory
for details suiting her convenience, but a remarkably poor memory for other details
which it would seem were no more difficult to retain.24 In any event, it appears to
me and I find that Maertens' account of the October 14 incident is more plausible
than Willard's. As already pointed out, Maertens testified she was without knowledge
of the scheduled Board meeting until Willard mentioned it early in the morning of
October 15.25 According to Maertens, Willard informed her that she and the "two
Sophies" were going to the Board conference the next day. Maertens, as the super-
visor in charge, then checked this with the "two Sophies." There is no claim that
Maertens made any threats against those two, as she allegedly did against Willard.
On the contrary, according to Sophie Pijanowski, General Counsel's witness, the
conversation between her and Maertens was brief, to the point, and noncoercive.
Why Maertens should have chosen to bring pressure upon Willard (a well-known,
active union leader with an apparently quick temper) and intimidate her, rather than
the other union observers, is puzzling. In this connection, I note that Plant Manager
Dierson had taken special pains in one of his preelection speeches to stress that service
as a union observer "will have absolutely no effect on your position here or our regard
for you." While announcement of the company policy does not prove it was fol-
lowed, it is evidence of the Company's attitude, particularly respecting so serious a
matter as interference with Board processes, activity which, it must be assumed even
a hostile antiunion employer would seek to avoid.
For the foregoing reasons, I find that Supervisor Maertens did not make the threat-
ening remarks attributed to her by employee Willard, and, accordingly, that General
Counsel failed to establish the allegation in the complaint that these remarks were
violative of Section 8(a) (1) of the Act.26
24 Thus Willard started her testimony with a precise description of the first "two" con-
versations with Maertens on October 14, while later (on cross-examination), confronted
with another statement she attributed to Maertens (regarding payment for the time lost
in attending the Board conference), she professed to be at a total loss as to when this
took place, even whether it was before the election I also note some discrepancy between
Willard's testimony and her October 29 prehearing affidavit ; Willard not only omitted
any reference to the "Labor Board" in quoting Maertens, but specifically deleted the phrase
in the affidavit. At the hearing Willard explained she "thought" Maertens used the phrase
but did not think she actually did. She ended up by surmising that Maertens "knew I was
going" to the Board and that it was unnecessary for Maertens to articulate this
26 General Counsel and the Union made no showing as to how Maertens had learned, or
could have learned, of Willard's selection as observer between October 13 (the day she
was selected) and early the next morning (October 14) when Maertens allegedly dis-
closed knowledge of Willard's selection. The uncontradicted evidence shows that the
Union first notified the Company of its observers' selections at about 10 a.m. (about 21/
hours after the Maertens-Willard conversation), when the Union requested the Company
to excuse the observers to attend the October 15 Board conference.
29 At the close of General Counsel's case and upon motion of Respondent, I dismissed
that portion of paragraph VIII of the complaint which related to an alleged threat by
Plant Manager Dierson to an employee on October 29. To support this allegation General
Counsel called Joan Willard, the employee involved, who testified that Dierson and an-
other company official (Schlenvogt) had summoned Willard into the office and reprimanded
her for poor production and uncooperativeness in a time study. Willard testified that
Schlenvogt said, "I let girls go for less than this ." General Counsel concedes in his brief
that the latter remark "appeared to be referring to her work" but contends that in the
light of Willard's known activity as a union observer on October 16 and another incident
that took place October 9 in which Dierson allegedly intimated that she was a union
"ringleader," "it is clear that the conversation referred to her union activity and not her
work." I disagree , and deny General Counsel ' s request , in his brief, for reconsideration
and reversal of my ruling at the hearing.
770-076-65-vol. 149-55
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The objection to the election
As already noted, the Board in its Decision and Order of January 14, 1964, in
Case No. 13-RC-9666, adopted the Regional Director's recommendation that the
representation case be consolidated with the complaint case for resolution of the
issue of credibility involved in the Maertens-Willard incident of October 14, just
discussed. Having resolved this issue in favor of Respondent, I find that Respondent
did not interfere with the election by reason of the alleged threat attributed to Willard.
Accordingly, I recommend that objection No. 6 (based on the Maertens-Willard
incident ) be overruled.27
C. The discharge and refusal to recall employee Thielen
Mary Thielen was hired by Respondent on July 21, 1953, and worked as a sewing
machine operator in the sewing department from that date until March 28, 1963,
when she was transferred to the returned goods section or department. Her employ-
ment was terminated on May 27, 1963, allegedly because of lack of work.
During the period she worked in the sewing room, Thielen was paid on a piece-
work basis subject to a guaranteed minimum hourly rate. It is undisputed that
during the last years of her employment in this department there was much criticism
of her production rate. Don Dionesotes, Respondent's sewing room foreman during
this period, credibly testified that he had spoken to Thielen "several times" during
the preceding 2 years about her low production. He explained that the Company
had been losing money on her since she was a pieceworker not producing enough to
make her guaranteed rate of pay.28 Thielen herself admitted that Dionesotes and
Martha Maertens (the forelady in the department) repeatedly pressed her to increase
production. There is no evidence of any dissatisfaction with the quality of her work.
In March 1963, Dionesotes finally decided to "terminate" Thielen's employment
in the sewing department because, as he put it, he "didn't feel we could put up with
her makeup pay any longer." He sent her home 29 but in the meantime tried to find
her other work. He succeeded in finding Thielen a job in the returned goods section,
supervised by Irene Drews, where there was then an abnormally heavy workload.30
Fricano, Drews' superior, approved the transfer with the understanding that the job
would be temporary, until the section's workload returned to normal.
Thielen's transfer to the returned goods section was effective March 28 Accord-
ing to Thielen's own testimony, Dionesotes informed her at the time that the job was
"temporary." Thielen testified:
I asked him how long am I going to work there, if I should come down for a
few days it's no use of me going back. He said, "Well, it might last till about
June." That's what he told me.
Thielen worked as "machine operator" in the returned goods department until May 27,
sewing labels and tags on returned garments. She also did some boxing and
packing when she ran out of this work.31 Thielen was paid on a time basis in the
returned goods section.
° While I have found that Respondent engaged in other acts of interference and coercion
prior to the election, all of this illegal conduct took place prior to the filing of the peti-
tion for election on September 3 and, therefore, has not been considered in relation to the
validity of the election. See supra, footnote 4
ae Dionesotes left the Company several months before the hearing herein. His testi-
mony in this proceeding was almost entirely uncontroverted. I found him to be a credible
witness
19 Thielen characterized this action as her "second" layoff. Dionesotes had laid her off
previously for 3 days in January or February
SO The returned goods section (also referred to in the record as a department) was for
accounting purposes combined with the closeouts warehouse and both together are desig-
nated on the Company's books as "Department 42 " Some of the girls in the returned
goods section, classified as "machine operators," perform functions similar to employees
in the sewing room ; they sew labels and pin tickets on garments returned from customers,
and occasionally mend them Prior to the time in question, Drews had been borrowing
girls from Dionesotes. Only the preceding January the Company had transferred another
machine operator, Harriet Jablonski, from the sewing room to Drews' section to handle
an abnormal workload.
81 Some girls in the returned goods section, classified as "rework clerks," perform this
work (in addition to other work) on a regular basis.
HOLLYWOOD VASSARETTE DIV. OF MUNSINGWFAR, INC. 851
Toward the end of May, the sewing work in the returned goods section slackened.
According to Thielen, she ran out of work and asked Drews, her supervisor, what to
do. Drews took the matter up with her superiors and it was decided to lay Thielen
off. Plant Manager Dierson testified that before he made the "final decision" to'
terminate Thielen, he ascertained that Thielen could not be returned to the sewing
department because she had been "unacceptable" there and found that there was no
other work available that he felt she could perform Thielen was notified of her
separation by Drews who, according to Thielen, told her that she would be recalled
when it "got busy." The Company's "termination of employment record" gives
"lack of work" as the reason for her termination; and notes that she was being recom-
mended for reemployment. Thielen has not yet been recalled.
I
Conclusions
As is usual in cases of this type, the question whether Respondent discriminatorily
discharged and refused to recall Thielen is a factual one, to be determined in the
light of all circumstances surrounding the Company's actions. On the' basis *of the
entire record, I find that General Counsel failed to meet the burden which is his, of
establishing that the Company's actions were discriminatorily motivated, in violation
of Section 8(a)(3) and (1) of the Act.
There is, no doubt, evidence suppoiting a prima facie case of discrimination.
Respondent admittedly opposed the Union and, as found, its highest managerial offi-
cials undertook a campaign-subtle to be sure-to wean the employees from it
through well-timed economic benefits. Thielen was an early adherent of the Union,
having attended its first three meetings She was not, however, especially active.
Thus, unlike some employees retained by Respondent, such as Joan Willard, she did
not talk about the Union and never signed up other employees. There is no direct
evidence that the Company knew of her union membership. Nevertheless, there is
evidence from which it could reasonably be inferred that the Company knew of her
affiliation by May 22 when, as found, Supervisor Drews asked her whether she was
going to the union meeting that evening and indicated that she did not want anyone
in her department signing a card There is thus evidence of employer hostility to
the Union, union adherence by the dischargee, and knowledge of such adherence by
the employer-the basic elements necessary to establish a prima facie case of un-
lawful discrimination.
In my view, however, the countervailing evidence-almost entirely uncontro-
verted-clearly rebuts General Counsel's prima facie case. This evidence establishes
that Respondent had concluded, with reason, that Thielen was an undesirable em-
ployee-and Dionesotes, her foreman, had decided to terminate her in the sewing
room as far back as March 1963, long before the Company had any knowledge of
Thielen's union activity.32 Respondent's records in evidence disclose that terminations
for poor production-the complaint against Thielen-were not uncommon. Thielen
admitted that her superiors had repeatedly complained about her production. Dione-
sotes, however, was able to locate another job for her in the returned goods section
which was exceptionally busy at the time. It was understood by all concerned, in-
cluding Thielen, that the job was "temporary," Thielen herself testifying that Dione-
sotes informed her that "it might last till about June" only. The work for the machine
operators-Thielen's temporary job in the returned goods department-slackened at
the end of May and Thielen was chosen for layoff on May 27.
It would appear that the very sequence of events itself negates General Counsel's
contention that the May 27 layoff was deliberately contrived by Respondent to rid
itself of a union adherent. To be sure, there are some suspicious circumstances
pointing toward such possible conclusion, such as the timing of the layoff only 5 days
after Thielen's interrogation by Drews; but the fact is that the duration of her job in
the returned goods section-"till about June"-had been fixed long before. Also,
while there is evidence that other employees with low production rates were retained
by Respondent, there is no evidence that the retained employees were nonunion or
antiunion . There is also evidence that Thielen had been assigned to other work in
the past, such as boxing and packing, but the fact is that this work was but occasional
in nature and was but fill-in work, Thielen regular work-and the one for which
she was hired-being sewing.33 It was only natural for the Company to dispense
"I Dionesotes credibly testified that he had no knowledge of her union activity at that
time. As noted, supra, the increased tempo of union activity did not take place until well
after this period.
13 Respondent 's records so classified Thielen both while in the sewing department and in
the returned goods department.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with a machine operator when its temporary work surge for such operators diminished
rather than to lay off a full-time boxer and packer to make room for a machine oper-
ator. There were only two regular machine operators in Respondent's returned goods
section on May 27-Thielen and Jablonski. Since the latter was senior in service,34
seniority considerations alone-even discounting Thielen's past production record-
might well have justified Thielen's selection for earlier separation.35
Having found that Respondent laid Thielen off on May 27 for cause, the question
remains whether its failure to recall her thereafter was discriminatorily motivated.
Upon the basis of the entire record, I am persuaded that General Counsel did not
meet the burden of establishing that it was.
General Counsel predicates his position with regard to the alleged discriminatory
failure to recall, primarily on the fact that it is company policy (as Plant Manager
Dierson testified) to recall laid-off employees if and when work is available in their
department and if it is work which they can do and there is no objection to their
return. The record fails to establish that Respondent violated this policy in the case
of Thielen. The undisputed evidence shows that the returned goods section (in which
Thielen was last employed on a temporary basis) still has only one machine operator,
Jablonski, and that Thielen had not been replaced. While, as General Counsel points
out, Respondent has hired 10 new clerks, operators, and boxers since May 27, only
1 of these (Josephine Badzioch) was hired for the returned goods section (on Sep-
tember 3). And this employee was employed as a "return goods clerk" whose work
consists of receiving returned goods, checking them to determine their condition,
classifying them as firsts, seconds, or "no value," and writing up and processing the
goods for credit-work which, so far as the record shows, Thielen, a machine oper-
ator, never performed and was not shown to possess the capacity to perform 36 Gen-
eral Counsel also points to the fact that two employees in the returned goods section
(Stauss and Tenschler) -"rework clerks" who, among other things do boxing and
packing (see supra, footnote 31)-were "laid off" for "brief" periods since May 27
but were returned to their jobs, while Thielen-who had greater departmental
seniority and had performed some of this work, was not. In the first place, the
record shows that the "brief" absences from work by these two employees-some of
them for half-day periods-were not "formal" layoffs or separations. Moreover,
summer vacations may well have accounted for some of their absences. Finally, as
already observed in connection with the discussion of Respondent's alleged discrimi-
natory action on May 27, in view of the differences in functions between the job
classifications in the returned goods department, Respondent could hardly have been
expected to recall a laid-off machine operator to take the place of a full-time rework
clerk.
In view of all of the foregoing, I conclude that General Counsel has failed to
sustain his burden of proving by a preponderance of the evidence that Respondent
laid off Thielen on May 27 and has since then refused to reemploy her because of
unlawful discriminatory reasons, in violation of Section 8(a)(3) and (1) of the Act.
III. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. By announcing and granting economic benefits to its employees in the form of
improved pensions and vacations, at a time when the Union was seeking to organize
Respondent's employees, by interrogating an employee concerning her attendance at
a union meeting and threatening her with reprisal if she signed a union card, and by
attendance of a company supervisor at a union meeting, Respondent has interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act, in violation of Section 8 (a) (1) of the Act.
34 Jablonski had substantial companywide , as well as departmentwide , seniority over
Thielen. Jablonski was first hired by the Company January 25, 1946, and commenced
-working In the returned goods section January 18, 1963; Thielen, hired July 21, 1953,
commenced working in the returned goods section March 28, 1963.
85Respondent 's official, Fricano , testified that the seniority standing of the two em-
ployees was a factor in Thielen's selection
ae It is clear that the functions performed by, the "return goods clerk" require training
and"exercise of discretion.
HOLLYWOOD VASSARETTE DIV. OF MUNSINGWEAR, INC. 853
2. The aforesaid unfair labor practices-are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
3. Respondent has not violated Section 8 (a) (3) and (1) of the Act by laying off
Mary Thielen on May 27, 1963, and by thereafter failing or refusing to rehire her.
4. Respondent has not engaged in conduct interfering with its employees' freedom
of choice in the Board election conducted on October 16, 1963, by allegedly threat-
ening an employee with reprisal if she attended a Board conference.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this proceeding, I recommend that Hollywood Vassarette Division
of Munsingwear, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act by announcing or granting to them economic
benefits or by changing the terms and conditions of their employment; provided,
however, that nothing in this Recommended Order shall be constructed as requiring
Respondent to rescind, abandon, or vary any economic benefit or any term or con-
dition of employment heretofore established.
(b) Coercively questioning employees about union matters, threatening them with
reprisals on account of their union activities, engaging in surveillance of union meet-
ings, and in any other manner interfering with, restraining, or coercing employees in
the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Post at its place of business in Chicago, Illinois, copies of the attached notice
marked "Appendix." 37 Copies of said notice, to be furnished by the Regional
Director for Region 13, shall, after being duly signed by the Respondent's representa-
tive, be posted by Respondent immediately after receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including all places where
notices to its employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 13, in writing, within 20 days from
the receipt of this Recommended Order, what steps have been taken to comply
herewith 38
It is further recommended that the complaint be dismissed insofar as it alleges
violations of the Act not specifically found herein.
It is further recommended that objection No. 6 in Case No. 13-CA-9666 be over-
ruled and that the result of the election be certified.
37 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order Is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
°In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read, "Notify the Regional Director for Region 13, in writing, within
10 days from the date of this Order, what steps have been taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of the rights guaranteed in Section 7 of the Act by granting them economic
benefits, or by changing the terms or conditions of their employment; provided,
however, that nothing in this Recommended Order requires us to rescind, aban-
don, or vary any economic benefit or any term or condition of employment
heretofore established.
WE WILL NOT coercively question our employees about union matters, threaten
them with reprisals on account of their union activities, engage in surveillance
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of union meetings , and in any other manner interfere with , restrain , or coerce
our employees in the exercise of their rights under Section 7 of the National
Labor Relations Act.
All our employees are free to become, remain , or refrain from becoming or re-
maining, members of any labor organization of their own choosing.
HOLLYWOOD VASSARETTE DIVISION OF MUNSINGWEAR, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 176 West
Adams Street , Chicago, Illinois, Telephone No. Central 6-9660, if they have any
question concerning this notice or compliance with its provisions.
Oklahoma Scientific Co., a Division of Radiaphone Company,
Inc. and International Association of Machinists , AFL-CIO.
Case No. 16-CA-1960. November 19, 1964
DECISION AND ORDER
On June 16, 1964, Trial Examiner John P. von Rohr issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. He further found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended dismissal of the complaint as to them.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Decision and a supporting brief. The Respondent filed cross-
exceptions to the Trial Examiner's Decision and an answering brief
to the General Counsel's exceptions.
Pursuant to the provision of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-exceptions and briefs, and
the entire record in the case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
149 NLRB No. 87.