Myerstown Hosiery Mills

National Labor Relations Board - Board Decisions

Mar 10, 1950

88 N.L.R.B. 1000 (N.L.R.B. 1950)

In the Matter of THE L. B. HOSIERY Co., INCORPORATED AND LEE:
MAISEL, DOING BUSINESS AS MYERSTOWN HOSIERY MILLS and AMERI-
CAN FEDERATION OF HOSIERY WORKERS
Case No. 4-CA --R ADecided March 10, 1950
DECISION
AND
ORDER
On September 29, 1949, Trial Examiner John H. Eadie issued his=
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter the Respond-
ents filed exceptions to the Intermediate Report, and a supporting
brief, and the General Counsel filed a brief.
The Board 1 has reviewed the rulings of the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and 'the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions.
1. The Trial Examiner found that the sale of the business herein
involved to Respondent Maisel was fictitious, and that Maisel operates,
the plant as the successor to, under the direction and control of, and
as a front for, the Respondent Company. We agree. The record
clearly indicates that Respondent Maisel's purported individual pro-
prietorship is merely a disguised continuance of the Respondent
Company. The employees continued, after the transfer of the business
to Respondent Maisel, to perform the same work, in the same place,
under the same conditions of employment, and under the direction
and control of the same general manager, Jack Lustinan. Further-
more, even if this were a case of a bona fide transfer of a business,
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this proceeding to a three-member panel
[Chairman Herzog and Members Houston and Murdock].
88 NLRB No. 193.
1000
THE L. B. HOSIERY CO., INCORPORATED 1001
and if Respondent Maisel is not the alter ego of Respondent Company,
our Order would nevertheless issue against both Respondents. We
have consistently held that a successor which takes over a business
with knowledge or which is chargeable with notice 2 of the existence
of unremedied unfair labor practices committed by its predecessor,
and continues to operate the business without any discernible change
of existing labor policy, is liable to remedy such unfair labor prac-
tices.3 Accordingly, we are convinced that the coercive effect of
the unfair labor practices set forth in the Intermediate Report can
be dissipated only by requiring Respondent Maisel, as well as the
Respondent Company, to take appropriate steps to remedy such
unfair labor practices 4
ORDER
Upon the entire record in the case, and pursualit to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, The L. B.
Hosiery Co., Incorporated, and Lee Maisel, doing business as Myers-
town Hosiery Mills, their officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in American Federation of Hosiery
Workers, or any other labor organization, by discriminatorily dis-
charging or refusing to reinstate any of their employees or discrimi-
nating in any other manner in regard to their hire and tenure of
employment or any terms or conditions of employment;
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist American Federation of
Hosiery Workers, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Howard Kiscaddin, Russel R. Lutz, James R. Ludwig,
Edwin L. Williamson, Francis Matz, and Paul Garnet immediate and
2 The original complaint herein was issued on February 4, 1949, and was served upon
the Respondent Company on February 5, 1949, almost 2 months prior to the sale of the
business.
'National Garment Company , 69 NLRB 1208.
, See The Alexander Milburn Company, 78 NLRB 747; Rome Lincoln -Mercury Corp.,
86 NLRB 397.
1002 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges;
(b) Make whole the employees listed in Appendix A for any loss
of pay they may have suffered By reason of the Respondents' dis-
crimination against them, by payment to each of them of a sum of
money equal to the amounts he or she normally would have earned as
wages during the periods from the date of the discrimination against
them : (1) to the date of the Respondents' offer of reinstatement in the
case of Howard Kiscaddin, Russel R. Lutz, James R. Ludwig, Edwin
L. Williamson, Francis Matz, and-Paul Garnet, (2) to the date when
reinstatement actually took place or was offered in the case of Lillian
Gassert, Carrie Gassert, Grace Breidigan, Edith Schaeffer, Grace
Hibshman, Hilda Miller, Pauline Haffer, Helen Kline, and Margaret
Benninghoff, and (3) to the date that reinstatement was declined in
the case of Kenneth E. Hildebrand, less their net earnings during
such periods;
(c) Post immediately in Respondents', plant at Myerstown, Penn-
sylvania, copies of the notice attached hereto and marked Appendix
B.5 Copies of said notice, to be furnished by the Regional Director
for the Fourth Region, shall, after being duly signed by the Respond-
ents' representative, be posted by the Respondents immediately upon
receipt thereof and maintained by them for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondents to insure that said notices are not altered,
defaced, or covered by any other material;
(d) Notify the Regional Director for the Fourth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
APPENDIX A
Kenneth E. Hildebrand
Howard Kiscaddin
Russel R. Lutz
Lillian Gassert
Carrie Gassert
Grace Breidigan
Edith Schaeffer
Grace Hibshman
Hilda Miller
Pauline Haffer
James R. Ludwig
Edwin L. Williamson
Francis Matz
Paul Garnet.
Helen Kline
Margaret Benninghoff
In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted in the notice , before the words, "A DECISION AND ORDER" the words,
"A DECREE OF THE UNITED STATES COURT' OF APPEALS' ENFORCING."
THE L. B. HOSIERY CO., INCORPORATED 1003
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL OFFER to the individuals named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed:
Howard Kiscaddin Edwin L. Williamson
Russel R. Lutz Francis Matz
James R. Ludwig Paul Garnet
WE WILL make whole the individuals named below for any loss
of pay suffered as a result of the discrimination against them :
Kenneth E. Hildebrand
Howard Kiscaddin
Russel R. Lutz
Lillian Gassert
Carrie Gassert
Grace Breidigan
Edith Schaeffer
Grace Hibshman
Hilda Miller
Pauline Haffer
James R. Ludwig
Edwin L. Williamson
Francis Matz
Paul Garnet
Helen Kline
Margaret Benninghoff
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist AMERICAN FEDERA-
TION OF HOSIERY WORKERS, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act.
All our employees are free to become, remain, or refrain from be-
coming members of the^above-named union or any other labor organi-
zation except to the extent that the right to refrain may be affected by
a lawful agreement requiring membership in a labor organization as
a condition of employment. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment
1004 DECISIONS' OF NATIONAL LABOR RELATIONS "BOARD
against any employee because of membership in or activity on behalf
of any such labor organization.
THE L. B. HOSIERY Co., INCORPORATED,
Employer.
By------------------------------------------
(Representative ) (Title)
Dated --------------------
LEE MAISEL, doing business as
MYERSTOWN HOSIERY MILLS,
Employer.
By------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Harold Kowal, for the General Counsel.
Mr. Julian E. Goldberg, of Philadelphia, Pa., for the Union.
Mr. Robert H. Kleeb, of Philadelphia, Pa., for the Respondents.)
STATEMENT OF THE CASE
Upon a charge duly filed by American Federation of Hosiery Workers, herein
called the Union, the General Counsel of the National Labor Relations Board,
respectively called herein the General Counsel and the Board, by the Regional
Director of the Fourth Region (Philadelphia, Pennsylvania), issued a complaint
dated February 4, 1949, against The L. B. Hosiery Co., Incorporated, herein
called the Respondent Company, alleging that the Respondent Company had
engaged in, and is engaging in, unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
With respect to the unfair labor practices, the complaint alleged that the
Respondent Company on or about February 27, 1948, discharged Kenneth E.
Hildebrand and Howard Kiscaddin, and thereafter failed and refused to rein-
state them, because they joined or assisted the Union or engaged in other con-
certed activities. The Respondent Company filed an answer in which it denied
the jurisdictional and unfair labor practice allegations of the complaint.
Pursuant to notice, a hearing was held at Lebanon, Pennsylvania, on April
26 and 27, 1949, before the undersigned Trial Examiner. The General Counsel
and the Union were represented by counsel. The Respondent Company did
not appear at the hearing, by counsel or otherwise. Before resting his case, the
General Counsel moved that the hearing be adjourned to a later date for the
purpose of serving an amended complaint and charge upon the Respondent
Company. The motion was granted.
After the filing of an amended charge by the Union, the General Counsel issued
an amended complaint, dated May 9, 1949, against the Respondent Company and
" Mr. Kleeb withdrew from the case before the close of the bearing.
THE L. B. HOSIERY CO., INCORPORATED 1005
Lee Maisel, doing business as Myerstown Hosiery Mills, herein called Respondent
Maisel. In substance, the amended complaint realleges the discharges of Hilde-
brand and Kiscaddin and further alleges that Respondent Maisel is and has been
:since on or about March 28, 1949, the successor of the Respondent Company ; that
Respondent Maisel is and has been since said date under the control of and acting
pursuant to instructions given him by the Respondent Company in the conduct
of operations of a plant located at Myerstown, Pennsylvania ; that on or about
March 28, 1949, the Respondent Company discharged Russel R. Lutz, Lillian
•Gassert, Carrie Gassert, Grace Breidigan, Edith Schaeffer, Grace Hibshman,
Hilda Miller, Pauline Haffer, James R. Ludwig, Edwin L. Williamson, Francis
Matz, Paul Garnet, Helen Kline, and Margaret Benninghoff; that since said date
he Respondent Company and Respondent Maisel have failed and refused to rein-
state said employees ; that said employees were discharged and were not rein-
stated for the reason that they joined or assisted the Union or engaged in other
-concerted activities ; and that by said acts the Respondents interfered with,
restrained, and coerced their employees in the exercise of the rights guaranteed
in Section 7 of the Act. Copies of the amended complaint, the amended charge,
.and notice of hearing were duly served upon the Respondents and the Union.
'The Respondents filed an answer in which they denied the jurisdictional and
unfair labor practice allegations of the amended complaint. The answer further
-denied that Respondent Maisel is the successor of the Respondent Company and
that the former is tinder the control of or acting pursuant to instructions given
him by the latter.
A hearing on the matter was scheduled and held, starting on June 15 and
ending on July 5, 1949. The General Counsel, the Respondents, and the Union
Ivere represented by counsel. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues, was afforded
all parties. At the opening of the hearing the Respondents moved "to dismiss all
allegations in the amended complaint which allege any violations of the Labor
Management Relations Act occurring more than 6 months before the issuance
of the complaint," and to dismiss the complaint against the Respondent Company
upon the ground that the General Counsel was guilty of laches. Ruling was
reserved on both motions. The motions are hereby denied. At the close of the
General Counsel's case, counsel for the Respondents made separate, motions on
behalf of each Respondent to dismiss the amended complaint as a whole, or allega-
tions thereof, upon the grounds that the General Counsel failed to prove either
jurisdiction or violations of the Act. Ruling was reserved on all motions. The
motions to dismiss are disposed of as hereinafter indicated. All parties were
afforded an opportunity to file briefs or proposed findings of fact and conclusions
of law, or both. The Respondent Company and the General Counsel have filed
briefs with the Trial Examiner.
On September 14, 1949, the General Counsel filed with the undersigned a motion
to correct the official transcript of the record. No objections to the proposed
,corrections have been made by any of the parties. The undersigned has marked
the General Counsel's motion as Trial Examiner's Exhibit No. 1, and the affi-
davit of service thereof as Trial Examiner's Exhibit No. 2, and has entered them
as formal exhibits in the exhibit file. The motion is granted and it is hereby
ordered that the official transcript of the record be considered as corrected in
accordance with the specific corrections proposed by the General Counsel in his
said motion.
4
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both from the entire record in the case and from his observation of the wit-
nesses, the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
A. The period prior to March 25,1949
The L. B. Hosiery Co., Incorporated, is and has been since April 17, 1947, a.
corporation organized under and existing by virtue of the laws of the Common--
wealth of Pennsylvania. Until March 25, 1949, when it allegedly sold the busi--
ness with which this proceeding is concerned to Respondent Maisel, it was en-
gaged in the manufacture of nylon hosiery, on a commission and independent
basis, and in the sale and distribution of its own hosiery, with a plant and'.
principal place of business located at Myerstown, Pennsylvania.
During the fiscal year ending March 31, 1949, approximately two-thirds of its.
gross income of $159,346.02 reflected money received from commission knitting,.
and approximately $50,000 was received from sales of its own hosiery. Nylon
is manufactured outside of Pennsylvania, principally in Delaware, and is shipped,
either to a "throwster" in Pennsylvania, and then to the knitter, or directly to
the knitter as in the case of 15-denier yarn, which the Respondent Company
began to use in February or March of 1948. The value of nylon yarn used to
manufacture hosiery owned and sold by the Respondent Company during the
above period was approximately $30,000; and the value of the finished hosiery-
was about $50,000, of which from 10 to 20 percent was shipped and sold to cus-
tomers outside of Pennsylvania.
The commission knitting business of the Respondent Company during the•
fiscal year ending March 31, 1949, was chiefly with Camille Hosiery Co., of
Philadelphia, Pennsylvania. When such contract work was performed, title to
the yarn remained with Camille or any other company that gave the Respond-
ent Company the commission business. The 15-denier yarn for this hosiery was.
shipped from Delaware either directly to the Respondent Company or indirectly
through the company doing business with it. The Respondent Company re-
turned the empty "pirns" on which the yarn is wound to a DuPont plant located
at Seaford, Delaware. In the case of 15-denier yarn, to the knitting of which.
the Respondent Company's machines were changed early in 1948, it was not
processed by a throwster before the Respondent Company commenced knitting
operations. Other yarns were first shipped to the throwing plant chosen by
the purchaser before they were received by the Respondent Company. The
value of the yarn used in its commission business during the above period of
time amounted to approximately $60,000.
B. The operations of Respondent Maisel
As will be hereinafter related and found, the alleged sale to Respondent Maisel
on March 25, 1949, was fictitious ; and the plant was closed on March 28 and
later opened in the name of Respondent Maisel for the purpose. of defeating
the organizing efforts of the Union. Whatever, therefore, is true of the oper-
ations of the Respondent Company is true of the operations of Respondent
Maisel' .
2 Barton Brass Works, 78 NLRB 431; National Garment Co., 69 NLRB 1208.
5
THE L. B. HOSIERY CO., INCORPORATED 1007
Accordingly, it is found that the Respondent Company and Respondent Maisel
are engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
American Federation of Hosiery Workers is a labor organization which admits
to membership employees of the Respondents.
III. THE UNFAIR ' LABOR PRACTICES
A. Background
The Respondent Company is a family corporation. Its incorporators were
Jack Lustman, Alfred Lustman, Gerson Lustman, and Ida Lustman. Jack Lust-
man was president and a director of the corporation until at least December 30,
1948. As of the closing date of the hearing, the officers were : president, Morris
Lustman ; secretary, Irving Lustman ; treasurer, Alfred Lustman ; and assistant
treasurer, Jack Lustman a Jack, Irving, Morris, and Alfred Lustman are
brothers ; and Gerson and Ida Lustman are their parents.
Jack Lustman, in addition to being an officer of the Respondent Company, also
was general manager of the plant at all times mentioned herein' • Irving Lustman
also worked at the plant, under the direction of Jack Lustman. It does not
appear that any of the other officers or directors of the Respondent Company were
active in its affairs, particularly in the operation of the plant.
B. The discharge of Howard Kiscaddin and Kenneth E. Hildebrand
The Respondent Company began the manufacture of hosiery in August of 1947.
When full production was reached, it employed six knitters, who worked 8 hours
per day for 6 days. Two knitters worked on each shift, and each operated one
of the two hosiery machines. Kiscaddin, who was employed in the latter part of
July 1947, was one of the six original knitters.
At some time in October 1947, the knitters were increased to eight and their
hours of work reduced to 40 per week. Hildebrand was one of the knitters hired
when this change in the working schedule was made. The change was unsatis-
factory to the knitters and they complained to Jack Lustman ` The organiza-
tion of a union was discussed by the knitters at about this time, but no action
was taken. In January 1948, the Respondent Company began the manufacture
3 Documentary evidence shows that Jack Lustman was president until at least December
30, 1948. He denied that he held the office at that time, and testified that be was president
until November 1, 1948, when "under pressure" of the Board of Directors , which was
'•'principally my father," he resigned . The undersigned does not believe that Jack Lustman
or Irving Lustman, who also testified at the hearing, are reliable or credible witnesses.
Their testimony is replete with contradictions and discrepancies , and is not plausible in
connection with certain incidents involved in the case . Further, as in the above instance,
their testimony frequently is in conflict with documentary evidence . Accordingly, I have
not credited their testimony in resolving issues of fact hereinafter related. Neither Morris
nor Alfred Lustman appeared as witnesses at the hearing.
4 Jack Lustman testified that he was hospitalized from January until the end of March
1949. By his testimony he attempted to give the impression that he had very little to do
with the operation of the plant and was ignorant of the Respondent Company's affairs while
in the hospital . However, Irving Lustman testified , in substance, that he managed the
plant with daily instructions by telephone from Jack Lustman. Further, employee wit-
nesses testified credibly that Jack Lustman was frequently in and out of the plant during
this period of time.
5 The record indicates that Kiscaddin made the complaint on behalf of the knitters.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of 15-denier hosiery and announced a new piece rate for knitters. They again.
complained to Lustman, and efforts to organize a union were renewed. Through.
Kiscaddin, a meeting was arranged and held on February 25, with Anne Murko-
vich, an organizer of the Union, at the home of Paul Garnet, another knitter.
She supplied union cards to Kiscaddin and Garnet for organizational purposes.
On February 25, Kiscaddin and Hildebrand worked on the 3 to 11 p.. m. shift.
When he reported for work, Kiscaddin offered Williamson, a knitter on the 7
a. m. to 3 p. m. shift, a union card, and requested him to fill it out. Williamson,
however, told him that he had joined the Union when he worked in Reading,
Pennsylvania. Kiscaddin and Hildebrand then agreed that each would give his
relief knitter a card. When the relief knitters, Matz and Martin, reported for
work, they were' given union cards, which they signed. All cards were returned
to Kiscaddin. This was the only distribution of cards in the plant.
When knitters Paul Garnet and Russel Lutz reported for work at 3 p. M. on
February 27, Jack Lustman spoke to them individually. He asked Garnet if
Kiscaddin had given him a union card. Garnet replied that Kiscaddin did not
give him a card as he had his own. Lustman then said, "They have been raising
hell here today. I don't know what I am going to do. I have a good notion to
fire Kiscaddin . I want to think this over." Later Lustman returned
to Garnet's place of work and said, "Why do they do that to me? . . . Kis-
caddin and Hildebrand handing out union cards. They know I can't afford a
union. I told them often I couldn't pay union wages ... I have a. good
notion to fire those fellows." Lustman also spoke to Lutz when he reported for
work. Lustman told him that someone was handing out union cards and that he
knew who was responsible.
On Friday, February 27, Kiscaddin and Hildebrand were due to report for work
on the shift starting at 11 p. m. However, that night each received a telephone
call at his home from Jack Lustman who told them that they were discharged.
He told Kiscaddin that the legal reason for his discharge was "speeding up" his
machine, but that the real reason was his attempt to organize the Union in the
plant. Hildebrand was told the same by Lustman, excepting that in his case the
excuse for discharge was "taking off and bad work." When they returned to the
plant the following day for their tools, Lustman in separate interviews repeated
to each of them what he had said the previous night e
At sometime after February 27, Lustman asked Garnet if he knew what Kis-
caddin was doing. Garnet replied that he had not seen him. Lustman then said,
"It was too bad for that fellow, he would have made a mighty fine knitter, was a
high producer, too bad he had to listen to this union story and pass out the cards."
Conclusions
The Respondent Company contends that Kiscaddin was discharged because
he was speeding his machine, and that Hildebrand quit his job. It is further
claimed that the Respondent Company intended to reduce its knitters from eight
to six as a result of the complaints among knitters over the change in the working
schedule, and because of a shortage of yarn. Jack Lustman testified that Kis-
caddin had been speeding his machine on a number of occasions ; that he dis-
covered that Kiscaddin was a poor knitter in September or October 1947; that
Kiscaddin was retained only by reason of the fact that he was a veteran ; that
9 Kiscaddin and Hildebrand testified credibly to the above conversations with Lustman.
Lustman denied the statements attributed to him. His denial is not credited. See footnote
3, supra.
THE L. B. HOSIERY CO., INCORPORATED 1009
speeding the machines was against Respondent Company's rules ; that he caught
Kiscaddin speeding his machine on February 25 and discharged him; 7 and that
Hildebrand quit his job on February 26 after a discussion or argument about his
efforts to secure employment elsewhere . The Respondent Company produced
two witnesses, William Crozier and Henry Hinkley, who supported, in part, Lust-
man's testimony concerning Kiscaddin. Crozier, a knitter who left the Re-
spondent's employ before February 25, 1948, testified, in substance, that when
he followed Kiscaddin on the same machine, the machine was left "in a terrible
condition" and he had a "terrible time" because of "bad" stockings; and that he
complained to Lustman "on numerous occasions" concerning this situation.
Hinkley, a part time fixer, when questioned concerning Kiscaddin's work, testi-
fied, "Well, he was a somewhat sloppy operator, careless, and inexcusably lazy
to my way of thinking, and from the general condition in which he left the ma-
chine for the following shift, which is one of ways a fixer judges the way a man
operates, why, I would not be too favorably impressed." Hinkley also testified
that Lustman had complained to him that Kiscaddin "handed in too many menders
with his good work, and had too many bad salvages."
The undersigned is convinced and finds that the Respondent Company dis-
charged Kiscaddin and Hildebrand on February 27, 1948, because of their mem-
bership in and activities on behalf of the Union. Lustman's statements when
discharging Kiscaddin and Hildebrand and his statements to Garnet and Lutz
before and after the discharges, confirm this finding. In addition, it should be
noted that they were the only two employees who distributed union cards in the
plant. The plant was small, both in size and in number of employees. The evi-
dence discloses that Jack Lustman maintained a very close watch over his em-
ployees, particularly in connection with any possible union activity. Kiscaddin
testified credibly that during a conversation with Jack Lustman when he applied
for a job with the Respondent Company, Lustman asked him if he was a member
of the Union and said, "I am not in favor of the union. As long as I am running
this place, there won't be any union here of any kind" ; and that on his first day
of employment Lustman told him that he would close the plant before he would
operate with organized labor e Shortly after October 1947, Kiscaddin told Lust-
man that the knitters did not like the new working schedule. When Lustman re-
plied that he was unable to make enough money on the old schedule, Kiscaddin
stated that union mills were able to make money with only two shifts. Lustman
then said, "Well, this isn't a union mill, and you know what I said before ; we don't
have a union shop here as long as I am in charge of it." In another conversation,
Kiscaddin stated that other mills were paying union wages and were able to
make money. Lustman replied, "Well, I can't do it; as I told you before, if the
union gets in here, I will shut down. If you want to join the union or feel like
working some other place that is all right with me. But I won't have any union in
here-might as well forget about it." At some time in the fall of 1947, Lustman
called Kiscaddin at his home and asked him if a `union lady"` had come to see him.
' This charge was denied by Kiscaddin and the undersigned credits his denial . Hilde-
brand, his partner in the knitting operation , testified that he never saw him speeding his
machine.
8 Hildebrand also testified that when he was hired, Lustman asked him if he was a
member of the Union . Other witnesses for the General Counsel gave similar testimony.
The undersigned makes no separate findings of unfair labor practices concerning the above
statements of Lustman , or those hereinafter related, for the reason that they are not alleged
in the complaint.
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Kiscaddin replied that she had not, Lustman stated that she had been
trying to see some of the male and female employees. He advised Kiscaddin to
"slam the door in her face" if she came to his home. When the new piece rate
was announced in January 1948, Kiscaddin told Lustman that it was not suffi-
cient. He also complained that the knitters were not paid for cleaning their
machines, whereas employees in union mills were paid for such work. Lustman
replied, "Well, you know what I told you about the union. There won't be any
here. I will shut the place down, and my brother and I will . . . run the
machines."
The above-related conversations show not only the anti-Union attitude of
Lustman, but also his constant alertness for any attempt to organize the plant.
In addition to speeding his machine, Lustman testified to a number of other
reasons for Kiscaddin's discharge. He testified that most of the seamers com-
plained about his work, that he frequently reminded Kiscaddin of his poor
work, and that certain knitters refused to work with him. Contrary to his
testimony in this respect, employees Garnet, Lutz, Bashore, and Hildebrand all
testified credibly that they frequently heard Lustman praise Kiscaddin's pro-
duction.
Carrie Gassert, a seamer, testified that the seamers complained to Lustman
about the bad work of all the knitters, and she was unable to recall if she had
made more complaints about Kiscaddin than about the other knitters. Concern-
ing complaints against Kiscaddin, during direct examination Hinkley was ques-
tioned and answered as follows :
Q. Did you ever discuss with any of the other knitters Kiscaddin, or Kis-
caddin's attitude toward his job, Kiscaddin's work?
A. As the matter was brought to my attention by other men who worked
on the machine, it is traditional among knitters to moan about the man on
the machine on the previous shift.
Q. And did other knitters in fact moan to you about Kiscaddin?
A. Yes, they did.
Q. Can you name them, if you can recollect, any of the other knitters who,
as you put it, moaned to you about Kiscaddin who had worked on the
machine on the previous shift?
A. I believe I could name two.
Q. Would you name them, please?
A. Crozier was one of them, and Garnet was another one.
Q. What was Garnet's moan to you about Mr. Kiscaddin, Mr. Hinkley?
A. The usual thing about the number of needles he left out of the machine,
and about the fact that he didn't do his cleaning as he should have, and that.
he always had a lot of menders to fix Lip to get the machine back in running
condition after the preceding man was finished.
Q. What was Mr. Crozier's moan to you, Mr. Hinkley, about Mr. Kiscaddin?
A. The same story.
Q. Of all the knitters that were knitting for L. B. Hosiery in early 1948,
February 1948, at the time Kiscaddin was working there, which of the eight
knitters did you receive most of the moaning about, which of the knitters
that were working for L. B. Hosiery at that time?
A. I can't justifiably say any one any more than any other.
In my opinion, the above testimony of Gassert and Hinkley refutes the Respondent
Company's claim to the effect that the quality of Kiscaddin's work was out-
standingly poor. It clearly serves to neutralize the effect of Crozier's testimony
in this connection and does not support that of Jack Lustman.
THE L. B. HOSIERY CO., INCORPORATED
With respect to Hildebrand, Lustman testified, in substance, that Hildebrand
had been absent from work some few times ; that he had received several calls
from other mills in regard to references on Hildebrand ; that when he received
the third such call, he became "quite furious" ; that he called Hildebrand by tele-
phone on February 26 and reprimanded him for seeking other employment without
giving notice to the Respondent Company ; and that Hildebrand told him at the
time that he was quitting his job. Lustman's testimony in this connection does not
ring true. He also testified that prior to February 25 he intended to reduce his
force of knitters from eight to six, because of the knitters' complaints and a short-
age of yarn. Apparently, this was one of the Respondent Company's numerous
defenses in the case of Kiscaddin. In fact, Lustman testified that he had decided
that Kiscaddin was to be one of the two knitters let go, and that he was waiting
to catch him speeding his machine. Accordingly, it would seem that instead
of being furious he would have been overjoyed when he learned that Hildebrand
was seeking employment elsewhere, since Hildebrand's resignation would have
solved his problems on the knitters.
C. The discharges on March 29, 1949
Shortly before March 25, 1949, some of the knitters, concerned over job security,
decided to call a secret meeting of all employees.' At about 3 p. in. during the
afternoon of Friday, March 25, James Ludwig, a knitter, gave a written notice
to an employee in the finishing department and requested her to pass it around
to the other employees in that department. The notice stated, in substance,
that the Respondent Company's employees did not have any job security and that
a meeting would be held in a nearby town on the following morning at 10 a. in. for
the purpose of discussing the problem.
The knitters were advised of the meeting orally, or by showing them the
notice.10 On Saturday a meeting was held at the appointed place and time. Job
security, wage rates, and working conditions were discussed. Markovich, an
organizer of the Union, attended the meeting. All of the employees present, with
the exception of Gloxner, signed union cards before leaving the meeting.
When the employees reported for work on Monday morning, March 28, the
plant was closed. Irving Lustman told them that it was necessary to stop
operations due to financial difficulties of the Respondent Company. Nothing was
said by him at the time with respect to work in the future or that the plant had
been sold. Later, all of the employees received letters, dated March 25, 1949,
advising them that the Respondent Company had ceased manufacturing opera-
tions due to business conditions and that their employment was terminated.
Enclosed with the letters were checks in the exact amount of the wages due each
employee. All of the envelopes which enclosed the letters and checks were post-
inarked March 30, 1949.
On March 29, the knitters were told individually by Irving Lustman to come
to the plant the following day at appointed times in order to collect their tools.
However, instead of reporting singly as directed, they went to the plant in a
group, acting on the advice of Markovich. When they attempted to gain admit-
9 The Respondent Company had discharged two female employees shortly before the,
time mentioned above.
10 Knitter John Gloxner, who at the time was on the 11 p. m. to 7 a. m. shift, was in-
formed of the meeting at about 7 a. m. on March 26 by his partner, Francis Matz. Gloxner
was the last employee notified for the reason that he was not trusted by his fellow em-
ployees. He did not join the Union at the time when Kiscaddin and Hildebrand were
discharged.
S82191-51-65
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tance to the plant, Irving Lustman appeared at a side window wearing a gun in
a holster . He reprimanded them for coming in a group and not at their appointed
times. After some argument about the wearing of a gun and the failure of the
Respondent Company to give any notice of termination of employment, Lustman
told them that negotiations were then going on for the sale of the plant. He
would not permit the employees to enter the plant in order to get their tools.
They returned to the plant the following day, accompanied by the Myerstown
Chief of Police , and recovered their tools.
Several weeks after the shut-down of the plant, or sometime in April, the plant
resumed operations under the name of Respondent Maisel. Instead of six or
eight knitters , it used three knitters , one of whom was Gloxner , and three helpers.
None of the other knitters formerly employed by the Respondent Company was
recalled to work. After receiving letters, dated May 16, 1949, offering employ-
ment, the female employees formerly employed by the Respondent Company
returned to work on or about May 19.11 Since the reopening of the plant under
the name of Respondent Maisel, it has been managed by and under the full charge
of Jack Lustman." The same kind of hosiery is now manufactured as was man-
ufactured under the operation of the Respondent Company. With one possible
exception, hereinafter discussed, Respondent Maisel has not appeared at the
plant. All checks to employees for wages are drawn by Jack Lustman against
his personal bank account.
Conclusions
The Respondent Company contends that on March 25, 1949, being in financial
difficulties and due to financial pressure brought by Respondent Maisel, it sold
the latter its machinery and equipment.
The General Counsel contends that the Respondent Company closed its plant
and locked out its employees on March 28, 1949, in order to defeat the concerted
activities of the employees ; that the alleged sale to Respondent Maisel was
fictitious and its idea an afterthought ; and that Respondent Maisel is "the
straw of and a front for" Respondent Company and operates under its control.
In support of the Respondent Company's contention, a bill of sale, dated March
25, 1949, and other documents were introduced in evidence. Further, Irving
Lustman and Jack Lustman gave testimony in this connection. Respondent
Maisel did not testify or personally appear at the hearing."
Concerning the need for the sale, Jack and Irving Lustman testified, in sub-
stance, that the Respondent Company was forced to sell the plant due to continu-
ing financial difficulties which developed into a crisis between March 23 and 25,
1.949; that there was insufficient money on hand at that time to meet the pay roll
and other obligations, including loans advanced by Respondent Maisel; and that
the Respondent Company was unable to manufacture hosiery at a profit due to
11 The letters contained the typewritten signature, "Myerstown Hosiery Mills." Other-
wise their author was not identified.
' Lustman testified that in accordance with an agreement between the Respondent Com-
pany and Respondent Maisel lie was the acting manager of the plant until such time as a
permanent manager could be hired.
13 Jack Lustman in his testimony at times referred to the purchaser as a male and at
other times as a female. He testified that the name of his sister is Frieda Lena Maisel and
that of her husband is Sidney Leon Maisel ; and that the former signed the contract, dated
April 1, 1949, which provided for the sale of yarn and knitted hosiery . The bill of sale
identifies the purchaser merely as "Lee Maisel." Irving. Lustman testified that the busi-
ness was sold to Sidney Maisel . It appears that both Maisels are known by or use the
name "Lee."
THE L. B. HOSIERY CO., INCORPORATED 1013
a decline in the retail price. Irving Lustman testified that on March 25, 1949,
after the alleged sale to Respondent Maisel that same day and at the direction
of Jack Lustman, he returned to the plant and between 5: 30 and 6: 30 p. in. typed
the letters notifying the employees of their termination of employment; that
with the letters he enclosed checks for estimated wages due employees, by strik-
ing an average of their past earnings; ' that later that same night he attempted
to mail the letters, return receipt requested ; that he was unable to mail the letters
as the post offices at Myerstown and at Lebanon were closed ; that on Monday,
March 28, he again attempted to mail the letters but the Myerstown Post Office
was closed ; that he left the letters at that office with a note stating that he would
pay for the stamps the following morning; that he did not return to the post
office Tuesday morning, as stated in his note ; and that he returned to the post
office and paid for the postage of the letters on Tuesday evening after being called
by a postal employee."
The undersigned is convinced and finds that the Respondent Company closed
its plant and locked out and discharged its employees on March 28, 1949, be-
cause of their membership in and activities on behalf of the Union; that the
sale to Respondent Maisel on March 25, 1949, was fictitious and was conceived
as an afterthought; and that the Respondent Maisel operates the plant as the
successor and under the direction and control of the Respondent Company, be-
ing merely a front for the latter. The preponderance of the reliable and credible
evidence in the case amply supports these conclusions.
Contrary to the Respondent Company's contention, I find that it had knowl-
edge before March 28 of the activities of its employees on behalf of the Union.
In this connection, Philip Martin," whose testimony in this connection I credit,
testified that on about April 17, 1949, Jack Lustman told him that while he
(Lustman) was in the hospital, the employees "ganged up" on him and were
about to join the Union; that for that reason he shut down the plant and dis-
charged them; and that although Gloxner told him (Lustman) about the union
activity, he already had learned of it.14 Clearly, this statement of Lustman not
only reveals knowledge before March 28, but also the discriminatory reason for
closing the plant and discharging the employees. Further, on numerous oc-
casions during 1947 and 1948 Jack Lustman threatened to ?lose the plant if the
employees attempted to organize a union. Such threats were made by Kiscaddin,
as related and found above. Employees Garnet, Lutz, Ludwig, and Gangaware
also testified credibly concerning conversations with Jack Lustman to this effect.
Such testimony supports the conclusion that the plant was closed for discrimina-
tory reasons. Standing alone, and without considering the statements attributed
to Lustman by Martin, there is a strong inference to this effect, since it appears
14 Two knitters were working at the time Lustman allegedly typed the letters and made
out the checks. Their shift ended at 11 p. in. on March 25. They were followed by two
otl143r knitters who worked from 11 p. in. until 7 a. in. on March 26. All knitters were paid
on a piece-rate basis. Three of the four knitters involved, Ludwig, Garnet, and Matz,
testified credibly that the checks which they received were in the exact amounts of their
earnings . Gloxner did not so testify.
1 Lustman 's testimony in the above connection was in explanation of the fact that
the letters were postmarked March 30. The evidence conclusively shows that in order
to receive a postmark of March 30 the earliest time that they could have been mailed at the
post office was at the close of business on March 29.
1" Martin worked as a knitter for the Respondent Company during part of 1948. He
was reemployed by Jack Lustman on about April 17, 1949.
14 Irving Lustman was at the plant during the evening of March 25, when, as related
above, notice of the meeting scheduled for the following morning was passed among
employees.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Lustman acted as he so often had threatened. As related above, at the
times mentioned herein he was an officer and director of the Respondent Com-
pany and acting manager of the plant for Respondent Maisel . Under such
circumstances , there can be no question but that the Respondents are bound
by his statements.
There is considerable evidence to rebut the Respondent Company's contention
that a bona fide sale to Respondent Maisel took place on March 25. However,
for reasons of brevity, the numerous contradictions and discrepancies in the testi-
mony of Irving and Jack Lustman, and all the evidence tending to rebut the
contention will not be discussed.
As related above, Respondent Maisel did not appear at the hearing in person.
Credible testimony discloses that Jack Lustman while transacting business for
the Respondent Company at times used the aliases Jack Allen, Jack Lentz, and
G. C. Fox. Moreover, Martin testified credibly that when he was hired in April
1949, Lustman told him that if he ever was questioned, he should state that he
had been hired by a "Mr. Maisel" ; and that when he was served with a subpena
to appear as a witness in the instant case, Lustman told him, "They want to
ask you who hired you. You tell them Mr. Maisel from Ephrata, a fellow about
50 years old, about 6 feet tall and gray hair." With the exception of Gloxner,
all of the employees testified that they never had seen Respondent Maisel at the
plant. Gloxner testified that on March 30 he was interviewed and rehired
by a man introduced to him and identified by Irving Lustman as a "Mr. Maisel."
The undersigned, however, does not believe Gloxner to be a reliable or credible
witness, and does not credit his testimony in this connection.' In view of
Lustman's repeated threats to close the plant if the Union attempted to organize
it, and his history of using aliases, the actual existence of Respondent Maisel
is questionable. In my opinion, the General Counsel more than met the burden
of proving a prima facie case against both Respondents. This being so, the
burden of proving the sale, as an affirmative defense, rested upon the Re-
spondents. However, in attempting to prove the sale and identify the vendee,
the Respondents relied solely upon the testimony of Irving and Jack Lustman,
and incidentally upon that of Gloxner. As related above, I do not credit the
testimony of any of these witnesses. The Respondents clearly had other means
of proving the sale, as alleged, and of establishing the identity of Respondent
Maisel. Respondent Maisel could have been called as a witness, by deposition
or otherwise, and records could have been produced in evidence.1B In this con-
nection it is noteworthy that other than the testimony of the Lustmans and the
purported bill of sale, which is not notarized, there is no evidence of any con-
sideration in the transaction. While I do not find that Respondent Maisel is a
fictitious character, the above evidence is commented upon to show the failure
of the Respondents to prove their defense by substantial and reliable evidence.
In my opinion, the evidence conclusively shows that the sale did not take
place on March 25 and that the idea of a sale to justify the closing of the plant
was not conceived until after March 28, and I so find. The testimony of Irving
Lustman concerning the typing and mailing of letters to employees and making
18 Gloxner 's testimony concerning his activities leading up to the alleged interview are
not plausible . Further, his demeanor as a witness did not impress the undersigned. It is
noteworthy that Gloxner did not join the Union at the time of Kiscaddin ' s discharge and
was the only employee who did not join at the meeting on March 26, 1949 ; and that Lust-
man told Martin that Gloxner had told him of the union activity , as related above.
19 Throughout the hearing , the Respondents refused to produce their records, although
demands for them were made by both the General Counsel and the Union.
THE L. B. HOSIERY CO.., INCORPORATED 1015
out their checks has been related above. His testimony in this connection is not
plausible ; especially his explanation of the fact that the checks were in the exact
amounts of wages due employees.20 With respect to the letters, it should be noted
that they merely state, "Due to business conditions, the L. B. Hosiery Co., Inc.,
has ceased all manufacturing operations," as a reason for termination of employ-
ment. Although the sale allegedly had taken place before the typing of the letters,
no mention was made of it. Nor did he advise the employees who were working
at the time of the sale or that the plant would be closed the following Monday.
Further, employees Lutz, Garnet, Gassert, Matz, and Ludwig testified credibly
to the effect that on and after March 28 Irving Lustman for the first time told
them that the Respondent Company was going out of business and that the
plant was on the verge of being sold. In this connection, Ludwig testified that
at about 9 a. in. on March 29 Irving Lustman told him that a "Berks County
Dutchman" probably would buy the plant. Garnet testified that during the eve-
ning of March 29 Irving Lustman stated to him during a telephone conversation,
"You know, we are definitely going out of business. The business is on the verge
of being sold. Jack is negotiating with a buyer now."
The Respondent Company contends that it was forced to sell its machinery
and equipment on March 25 because of financial pressure. In this connection
the Respondents introduced in evidence 14 promissory notes in the approximate
amount of $35,000 and made payable to "Lee Maisel." The first note, dated
October 29, 1948, was due and payable on April 28, 1949. With the exception
of the last 2, all of the notes were due 6 months after date. Therefore, it is
noteworthy that the first note was not due until more than a month after the
date of the alleged sale. Further, although the Respondent Company claims
that the absence of cash led directly to the financial crisis which developed
between March 23 and 25, the evidence discloses that as of March 23 its bank
balance at the Myerstown Trust Company was $7,778.06, as of March 25, $6,067.59,
and as of March 31, $3,726.03; 21 and that the balance on March 23 was the highest
for the year 1949. This evidence is directly contrary to the testimony of both
Irving and Jack Lustman.
A profit and loss statement of the Respondent Company for the fiscal year
ending March 31, 1949, was introduced in evidence by the General Counsel.
It was prepared "without audit" by certified public accountants, and shows a net
loss for the year of $552.47. However, it shows cash on hand as only $53.01. Con-
sidering the above bank balance of March 31, 1949, it appears that the statement
is inaccurate in this respect, and that the Respondent Company operated with
a profit rather than a loss for the year 22 Further, the statement shows the
machinery and equipment, allegedly sold on March 25 to Respondent Maisel,
as assets of the Respondent Company.
As has been found above, the Respondent Company discriminatorily discharged
its employees on March 28, 1949, and the female employees were reinstated on
May 19, 1949. It is also found that the Respondent Company and Respondent
Maisel, as its successor and acting under its control and instructions, have since
20 As related above, Lustman testified that he made out the checks between 5 : 30 and
6 : 30 p. in. on March 25; and knitters , who were paid on a piece -rate basis , worked until
7 a. in. on March 26.
21 The Myerstown Trust Company was one of at least two banks used by the Respondent.
22 While this evidence is not conclusive, it does merit consideration, especially since the
Respondent Company refused throughout the hearing to produce any of its records. Such
records would have verified its contention that it was operating at a loss, if true, and would
have supported the testimony of Jack and Irving Lustman in this respect.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 28, 1949, failed and refused to reinstate Kenneth E . Hildebrand , Howard
Kiscaddin ,23 Russel R. Lutz, James R. Ludwig, Edwin L. Williamson , Francis
Matz, and Paul Garnet, because of their membership in and activities on behalf
of the Union.
IV. THE EFFECT OF THE UNFAIR LADOR PRACTICES UPON COMMERCE
The activities of the Respondents as set forth in Section III, above, occurring
in connection with the operations of the Respondents described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondents have engaged in unfair labor
practices , the undersigned will recommend that the Respondents cease and desist
therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
The undersigned has found that the Respondents discriminated in regard to
the hire and tenure of employment of Howard Kiscaddin, Kenneth E. Hildebrand,
Russel R. Lutz, Lillian Gassert, Carrie Gassert, Grace Breidigan, Edith Schaeffer,
Grace Hibshman, Hilda Miller, Pauline Haffer, James R. Ludwig, Edwin L.
Williamson, Francis Matz, Paul Garnet, Helen Kline and Margaret Benninghoff.
It has also been found that the Respondents on May 19, 1949, reinstated Lillian
Gassert, Carrie Gassert, Breidigan, Shaeffer, Hibshman, Miller, Haffer, Kline
and Benninghoff. It was stipulated at the hearing on June 28, 1949, that Hilde-
brand does not desire reinstatement . Accordingly , it will be recommended that
the Respondents offer only Kiscaddin , Lutz, Ludwig , Williamson , Matz and
Garnet immediate and full reinstatement to their former or substantially equiv-
alent positions z4 without prejudice to their seniority or other rights and priv-
ileges ; that the Respondents make all of the above-named employees, including
Hildebrand and the female employees, whole for any loss of pay they may have
suffered by reason of the Respondents' discrimination against them , by payment
to each of them of a sum of money equal to that which he or she normally would
have earned as wages from March 28, 1949 , to the date of the offer of reinstate-
ment, or to the date when reinstatement actually took place or was offered, as in
the case of the female employees, and in the case of Hildebrand, to the date of
the aforesaid stipulation ," less his or her net earnings 2' during said periods ; and
that the Respondent Company make whole Hildebrand and Kiscaddin in the
manner above related for the period from February 27, 1948, to March 28, 1949.
23 In the cases of Hildebrand and Kiscaddin, the discriminatory refusal to reinstate, as
applying to the Respondent Company. runs from February 27, 1948, the date of their
discharges.
24 In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible , but if such position is no longer in existence , then to a substantially equiva-
lent position ." See The Chase National Bank of the City of New York, San Juan , Puerto
Rico , Branch, 65 NLRB 827.
25 It is presumed that Hildebrand made up his mind that he did not desire reinstatement
on June 28 , 1949, the date of the stipulation, since he gave no indication of his decision in
this connection when he appeared as a witness at a prior date. This presumed date here-
after may be ascertained more accurately by a post-enforcement proceeding or agreement.
2a Crossett Lumber Co ., 8 NLRB 440 , 497-498.
THE L. B. HOSIERY CO., INCORPORATED 1017
Because of the Respondents' unlawful conduct and the underlying attitude of
opposition to the purposes of the Act revealed thereby, the undersigned is con-
vinced that the unfair labor practices found are closely related to the other unfair
labor practices prescribed by the Act, and that a danger of their commission in
the future is to be anticipated from the course of the Respondents' conduct in the
past. The preventive purpose of the Act may be frustrated unless the recom-
mended order is coextensive with the threat. In order, therefore, to make effec-
tive the interdependent guarantees of Section 7, to prevent the recurrence of
unfair labor practices and thereby to minimize industrial strife which burdens
and obstructs commerce and thus to effectuate the policies of the Act, the under-
signed will also recommend that the Respondents be ordered to cease and desist
from interfering with, restraining, or coercing their employees in any other
manner, in the exercise of the rights guaranteed them by the Act.
Upon the foregoing findings of fact, and upon the entire record in the case,
the undersigned makes the following:
CONCLUSIONS of LAW
1. The Respondent Maisel is the Respondent Company's successor in the opera-
tion of the Myerstown, Pennsylvania, plant, and is under its contract and acts
pursuant to its instructions.
2. American Federation of Hosiery Workers is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of the
employees listed in Appendix A, thereby discouraging membership in American
Federation of Hosiery Workers, the Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the
Act.
4. By interfering with, restraining, and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondents have engaged
and are engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Att.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the Respondents, The L. B. Hosiery Co., Incorpo-
rated, and Lee Maisel, doing business as Myerstown Hosiery Mills, their agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in American Federation of Hosiery Workers, or
any other labor organization, by discharging or refusing to reinstate any of their
employees or in any other manner discriminating in regard to their hire and
tenure of employment or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing their
employees in the exercise of the right to self-organization, to form labor organi-
zations, to join or assist American Federation of Hosiery Workers, or any other
labor organization, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all of such activities,
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act :
(a) Offer to Howard Kiscaddin, Russel R. Lutz, James It. Ludwig, Edwin L.
Williamson, Francis Matz, and Paul Garnet immediate and full reinstatement to
their former or substantially equivalent positions without prejudice to their
seniority and other rights and privileges;
(b) Make whole the employees listed in Appendix A for any loss of pay they
may have suffered by reason of the Respondents' discrimination against them, by
payment of the sums of money equal to the amounts determined in the manner
set forth in the section entitled "The remedy" above ;
(c) Post immediately in conspicuous places in Respondents' plant at Myers-
town, Pennsylvania, copies of the notice attached hereto marked Appendix B.
Copies of said notice, to be furnished by the Regional Office of the Fourth Region,
shall, after being duly signed by the Respondents' representative, be posted by
the Respondents immediately upon receipt thereof, and maintained by them for
sixty (60) consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondents to insure that said notices are not altered, defaced, or
covered by any other material ;
(d) Notify the Regional Director for the Fourth Region in writing within
twenty (20) days from the date of the receipt of this Intermediate Report what
steps the Respondent has taken to comply therewith.
It is further recommended that, unless Respondents shall within twenty (20)
days from the date of the receipt of this Intermediate Report notify said
Regional Director in writing that it will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the
Respondents to take the action aforesaid.
• As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) clays from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding (in-
cluding rulings upon all motions or objections) as he relies upon, together with
the original and six copies of a brief in support thereof ; and any party may,
within the same period, file an original and six copies of a brief in support of
the Intermediate Report. Immediately upon the filing of such statement of
exceptions and/or briefs, the party filing the same shall serve a copy thereof
upon each of the other parties. Statements of exceptions and briefs shall desig-
nate by precise citation the portions of the record relied upon and shall be legibly
printed or mimeographed, and if mimeographed shall be double spaced. Proof
of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85. As further provided in said
Section 203.46, should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board within ten (10)
days from the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the afore-
said Rules and Regulations, the findings, conclusions, recommendations, and
recommended order herein contained shall, as provided in Section 203.48 of said
THE L. B. HOSIERY CO., INCORPORATED 1019
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions , and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 29th day of September 1949.
JOHN H. EADIE,'
Trial Ehain'iner.
APPENDIX A
Kenneth E. Hildebrand
Howard Kiscaddin
Russel R. Lutz
Lillian Gassert
Carrie Gassert
Grace Breidigan
Edith Schaeffer
Grace Hibshman
Hilda Miller
Pauline Haffer
James R. Ludwig
Edwin L. Williamson
Francis Matz
Paul Garnet
Helen Kline
Margaret Benninghoff
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL offer the following named individuals immediate and full em-
ployment at the same or substantially equivalent position to which they
would be employed, without prejudice to the seniority or other rights or
privileges they would have enjoyed :
Howard Kiscaddin Edwin L. Williamson
Russel R. Lutz Francis Matz
James R. Ludwig Paul Garnet
WE WILL make whole the following named individuals for any loss of pay
suffered as a result of the discrimination against them:
Kenneth E. Hildebrand
Howard Kiscaddin
Russel R. Lutz
Lillian Gassert
Carrie Gassert
Grace Breidigan
Edith Schaeffer
Grace Hibshman
Hilda Miller
Pauline Haffer
James R. Ludwig
Edwin L. Williamson
Francis Matz
Paul Garnet
Helen Kline
Margaret Benninghoff
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of the right to self-organization, to form labor
organizations, to join or assist AMERICAN FEDERATION OF HOSIERY WORKERS,
or any other labor organization, to bargain collectively through represent-
atives of their own choosing and to engage in other concerted activities
for the purposes of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section 8 (a)
(3) of the Act.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain members of AMERICAN FED-
ERATION OF HOSIERY WORKERS, or any other labor organization . We will not
discriminate in regard to hire or tenure of employment or any term or condition
of employment because of membership in or activity on behalf of any such
labor organization.
Dated--------------------
Dated--------------------
THE L. B. HOSIERY Co., INCORPORATED,
Employer.
By-------------------------------------------
(Representative ) (Title)
LEE MAISEL, doing business as
MYERSTOWN HOSIERY 1`IILLS,
Employer.
By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced, or covered by any other material.