Newport News Children's Dress Co., Inc.

National Labor Relations Board - Board Decisions

Nov 6, 1950

91 N.L.R.B. 1521 (N.L.R.B. 1950)

In the Matter of NEWPORT NEws CHILDREN'S DRESS Co., INC. and'.
INTERNATIONAL LADIES' GARMENT WORKERS' UNION, A. F. OF L.
Case No. 5-CA-171.Decided November 6,1950
DECISION AND ORDER
On July 28, 1950, Trial Examiner Bertram G. Eadie issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor-
practices, and recommending that it cease and desist therefrom and.
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent and the,
General Counsel filed exceptions to the Intermediate Report, and filed
briefs in support of their exceptions. The Respondent also requested:
oral argument. This request is hereby denied because, in our opinion,.
the record, exceptions, and briefs adequately present the issues and the-
positions of the parties.
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 [Members Houston, Murdock,.
and Styles].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following additions and modifications.
1. The General Counsel excepts to the failure of the Trial Examiner
to find that the Respondent violated Section 8 (a) (1) of the Act by
excluding from its property a union organizer who intended to dis-
tribute union literature. It has been well 'settled since our decision
in LeTourneau Company of Georgia,' cited by the General Counsel,.
that under some circumstances an employer may not prohibit the
distribution of union literature on his property. In that case we said :
... the sole question confronting us is whether, under the
circumstances of the instant case, to the extent that the [em-
' 54 NLRB 1253, enforced 324 U. S. 793.
91 NLRB No. 230.
1521
1
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer's] rule prohibits distribution of union literature by em-
ployees on the parking lots, it constitutes such a serious impedi-
ment to the freedom of communication which is essential to the
exercise of the right to self-organization, that the right to self-
organization must be held paramount, and the rule give way.
As it appeared in that case that the rule did cause such a serious im-
pediment to self-organization, the respondent was found to have vio-
lated-Section 8 (1) of the Act. But the facts of the LeTourneau case,
and similar cases 2 on which the General Counsel relies, are markedly
different from those in the present case. In the LeTourneau case, for
example, the employer's plant was located in the heart of 6,000 acres
of land owned or controlled by the employer, and the gate was situated
on company property 100 feet from the highway. More than 60 per-
cent of the 2,100 employees boarded busses or entered their automobiles
on the employer's premises and thus could not be given literature as
they left the gate. In the present case, however, the Respondent's
property measures about 50 x 120 feet and the approximately 60 em-
ployees leave the premises by a single gate opening on a public street.
Busses do not load on the Respondent's property but stop across the
street from the plant and literature can easily be distributed to em-
ployees as they leave the gate. Under these circumstances we do not
believe that the denial to the union organizer of the opportunity to
distribute literature on the Respondent's property constituted a "seri-
ous impediment to the freedom of communication" within the meaning
of the LeTourneau case.3 Accordingly, we shall affirm the Trial
Examiner's dismissal of so much of the complaint as relates to this
incident.
2. The Respondent excepts to the Trial Examiner's findings that
the Respondent violated Section 8 (a) (1) of the Act by interrogating
the employees about their union activities and by threatening to re-
move the plant if the organizational campaign succeeded. The Re-
spondent's exceptions are grounded chiefly on the refusal of the Trial
Examiner to credit the testimony of Plant Manager Goodman and
General Superintendent Goldberger insofar as it related to the in-
terrogations and threats, and on his acceptance of the testimony of
employees Fountain and Presson on this subject. The Respondent
urges that as Goodman was found credible in other instances, his
denial of any illegal interrogations should also be credited, and fur-
ther contends that the probability is very small that Goldberger, ex-
2 United Aircraft Corporation , 67 NLRB 594. In this case, 50 percent of the employer's
approximately 24,000 employees parked their cars on a lot situated 100 yards within the
boundaries of the employer ' s phmises and after entering their automobiles on the lot
drove away without stopping, except when required to by traffic conditions.
3 Cf. I'. T. Carter, 90 NLRB 2020.
NEWPORT NEWS CHILDREN'S DRESS CO., INC. 1523
perienced as he was in labor relations, would have threatened to close
his plant in order to discourage union activity. We have recently said,
however :
. . . we do not overrule a Trial Examiner's resolutions as to
credibility except where the clear preponderance of all the rele-
vant evidence convinces us that the Trial Examiner's resolution
was incorrect'
We are not, in this instance, so convinced. Accordingly, we adopt the
Trial. Examiner's credibility findings and his findings of fact based
thereon. We shall, however, limit the grounds for our finding that
the Respondent violated Section 8 (a) (1) of the Act to Goodman's
questioning of Fountain regarding her union affiliation and to General
Superintendent Goldberger's threat, in his second speech to the em-
ployees, to close the plant if the Union succeeded in organizing it.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Newport News
Children's Dress Co., Inc., Newport News, Virginia, and its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
Interrogating its employees concerning their union affiliations, ac-
tivities, or sympathies, threatening to close its plant if its employees
join or organize unions, or in any other manner interfering with, re-
straining, or coercing them in the exercise of the rights to self -organ-
ization, to form labor organizations, to join or assist International
Ladies' Garment Workers' Union, A. F. of L., or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any and all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section
8 (a) (3).of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post immediately at its plant in Newport News, Virginia,
copies of the notice attached hereto, marked Appendix A' Copies of
i Standard Dry Wall Products , Inc., 91 NLIIB 544.
5 In the event this Order is. enforced by decree of a United States Court of Appeals, there
shall be inserted before the words, "A Decision and Order ," the words, "A Decree of the
United States Court of Appeals Enforcing."
917572-51-vol. 91-97
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such notice, to be furnished by the Regional Director for the Fifth
Region, shall, after being duly signed by the Respondent's represent-
ative, be posted by the Respondent immediately upon receipt thereof
and maintained by it for a period of sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or
covered by any other material;
(b) Notify the Regional Director for the Fifth Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
APPENDIX A
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, we hereby notify our employees that :
IVE WILL NOT interrogate our employees concerning their union
affiliations, activities, or sympathies, threaten to close our plant
if the employees join or organize a union, or in any other 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 INTERNATIONAL LADIES' GARMENT WORKERS'
UNION, A. F. OF L., or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
All our employees are free to become or remain members of the
above-named union or any other labor organization, or to refrain from
any or all of such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
NEWPORT NEWS CHILDREN'S DRESS CO., INC.,
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.
NEWPORT NEWS CHILDREN'S DRESS CO., INC. 1525
INTERMEDIATE REPORT
Harold G. Biermann, Esq ., Baltimore , Md., for the General Counsel.
Messrs. Schlesiri.yer & KrinkskI, DU(1 ciq Teller , Esq., of New York, N. Y.,
counsel for the Respondent.
STATEMENT OF THE CASE
Upon a sixth amended charge duly filed April 7, 1950, by International Ladies'
Garment Workers' Union, A..F. of L., herein called the Union, the General Counsel
of the National Labor Relations Board,, respectively called herein the General
Counsel and the Board, by the Regional Director for the Fifth Region (Baltimore,
Maryland), issued an amended complaint dated April 17, 1950, against Newport
News Children's Dress Co., Inc., herein called the Respondent, alleging that the
Respondent has 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 as amended at the
hearing alleges that Respondent: (1) discharged Catherine S. Kemp, January 24,
1949; Emma Upton Presson, December 19, 1949 ; and Myrtle Jean Kendrick, March
29. 1950; and since has failed and refused to reinstate them; (2) discharged,
failed and refused to reinstate said employees for the reason said employees,
and each of them, joined or assisted the Union or engaged in concerted activities
with other employees of the Respondent for the purposes of collective bargaining
or other mutual aid or protection ; and (3) by prohibiting the Union, its officers
and agents, and the employees of the Company from distributing union literature
on company property, threatening. them with arrest, interfered with, restrained,.
and coerced its employees.
The Respondent filed an answer in which it denied the commission of any
unfair labor practices.
Pursuant to an amended notice, a hearing was held at Norfolk, Virginia, on
May 15 and 16, 1950, before the undersigned Trial Examiner duly designated by
the Chief Trial Examiner. All of the parties, were represented by counsel who
were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertaining to the issues.
At the hearing General Counsel moved to amend the complaint by conforming.
the pleadings to the proof as to the names, dates, and other minor variances-
The motion was granted. General Counsel also moved to amend the complaint
by alleging that Respondent restricted distribution of union literature on Re-
spondent's property by union officers, agents, and employees and threatening them:
with arrest. Upon objection by attorney for Respondent, the ruling by the Trial
Examiner was reserved and is now overruled and the amendment is allowed.
Counsel for the Respondent moved for the dismissal of the complaint on the,
following grounds :
(1) That it is based upon a charge filed by the Union, whereas the real party
in interest should have been the Maryland-Virginia District of the International
Ladies' Garment Workers' Union and that said District is not in compliance with.
the provisions of Section 9 (f), (g), and (h) of the Act.
(2) That it is not supported by a charge filed within 6 months subsequent
to the alleged commission of the alleged unfair labor practices and is violative-
of Section 10.(b) of the Act.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARL
(3) That the Board was guilty of undue delay in waiting approximately 15
months after the charge was filed to the day the complaint was issued.
(4) That the charges were insufficient to justify the issuance of the complaint.
The rulings on said motions were reserved by the Trial Examiner and are
now denied.'
The General Counsel and the Respondent presented oral argument before the
Trial Examiner at the close of the hearing. A brief has been received from the
General Counsel and a memorandum letter from counsel for Respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Virginia corporation with its sole plant and office at New-
port News, Virginia, where it is engaged in the sewing of children's dresses. The
Respondent employs approximately 60 persons at its Newport News plant. It
receives cut materials from without the Commonwealth, sews them and ships
them out of the Commonwealth. During the last 6 months of 1949 the Respond-
ent received from without the Commonwealth goods of the value of approxi-
mately $150,000 and shipped outside the Commonwealth goods having the value
of approximately $200,000.
The Respondent admits that it is engaged in commerce within the meaning
of the Act.
II. THE ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union, A. F. of L., is a labor organiza-
tion within the meaning of. the Act, admitting to membership employees of
the Respondent.
III. THE UNFAIR LABOR PEACTICES
Surrounding Facts and Circumstances
Respondent completed the erection of its plant at Newport News, Virginia, in
June 1948. Walter Goodman became plant manager and superintendent; lie
is still engaged in such positions.
The business of the Respondent is the sewing of materials, cut by and re-
ceived from Harrisburg Children's Dress Company of Harrisburg, Pennsylvania,
in the making of children's dresses. On completion of the sewing operation, the
dresses are returned to Harrisburg where they are pressed and made ready
for shipment.
Respondent and the Harrisburg Company were affiliates. The parent company
was L. Whol Company also of Harrisburg. The Respondent's plant was a
building 60 by 120 feet and contained 98 machines. The investment in. plant
and equipment approximated $65,000.
The employees were females with the exception of the plant manager, engineer,
and night watchman. Many of its employees were recruited by the plant
manager assisted by Murray Markoff, the local representative of the Union and
a social friend of the plant manager.
1 Bethlehem Steel Company, 89 NLRB 1476 (May 19. 1950) ; J. H. Ratter-Rex Mfg. Co.,
Inc., 90 NLRB 130; Newport News Children's Dress Company, 89 NLRB 442.
NEWPORT NEWS CHILDREN'S DRESS CO., INC. 1527
A campaign for the unionization of the plant was inaugurated early in
June 1948 when the plant was opened. It lagged however and was revived
in December 1948 upon the filing by the Union of a petition for an election. A
hearing was held thereon January 3, 1949; thereafter, the petition was withdrawn
and unfair labor practice charges were filed by the Union. A further petition for
an election was filed by the Union and a hearing thereon was held on March 3,
1950. An election was ordered by the Board scheduled to be held May 5, 1950.
The Union withdrew its petition on May 4, 1950, and the election was not held.
A. Interference, restraint, and coercion
The testimony of all the witnesses convinces the Trial Examiner that all
things considered, the Respondent had no sympathy with the desire of some
of the employees to organize. However, the success of the enterprise was
uppermost in the minds of Respondent's manager and officers. The manager
was held responsible to his superiors for the production of the plant. In the
recruiting of the employees, upon the opening of the plant, no questions were
asked by him of them as to whether they were sympathetic to union organizations.
In fact he employed, at the request of the union agent, a number of individuals
who had been employed by a plant which had just recently closed.
Specifically, the president of an affiliate company and the head supervising
officer of Respondent made two speeches to the assembled employees when
the campaign for unionization was at its height. He has spent a number of
years in the same line of work. He had on numerous occasions consulted with
the attorney for the Respondent relative to his contacts with employees of his
several companies and advised him as to his rights in talking to them. He denies
that any of his remarks were violative of the provisions of the Act. Kemp,
a dischargee, testified to the following:
He had one of the Union papers that had been put out in front of the factory.
As he talked he proceeded to read from that little pamphlet. He said if
the factory wanted the Union we could have it, it did not make any difference ;
but he did have a factory ;back in Harrisburg that was unionized and it was
not a nice place to work. Mr: Goldberger at this point did not talk to us he
shouted. After the speech he spoke to two of us personally. We asked him
about a coffee urn. We had been promised a coffee urn in the plant. I asked
Mr. Goldberger when we were in the plant. I asked Mr. Goldberger when
were we going to get it. So he said "it is up to you two to keep the Union
out of here. I know that you two talk to all the girls." In the second of
the two speeches, he referred to the Union as "the damned Union," and on
this occasion he made it very plain that he did not want it in the factory
and he said if the Union came in he would move his plant back to Harris-
burg, and if anyone was caught talking Union in the shop, regardless of
who heard it, we were to pass him or her hat and show him or her the door,
if Goodman was not around, they were to be fired.
a a ' * a o
A. He [Goodman] asked me if I ever saw any more of my Union friends.
My reply was "No, I think they are saying `Thumbs down' on me. I don't
see them anymore."
A. He said . . . "This I would like to believe."
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Presson, a dischargee, testified at follows :
A. He [Goldberger] told us in his speech about his having this other shop,
which was Union, and he thought if some of them had it to do over, they
would not do it. He said we were getting all that a Union would offer us and
all they wanted was for us to pay the Union dues so they could get that
money and we were getting everything they had and did not have to pay
Union dues to work in the shop.
A. He [Goldberger] said he was not going to accept the Union, was not
going to deal with,it and that if they won he would move the plant back to
Harrisburg.
Fountain, a former employee who had resigned prior to the hearing and called
.as a witness, testified as follows :
Q. Did you ever have occasion to discuss the Union with Mr. Goodman?
A. One or two times.
Q. Do you remember the first time that any occasion like that occurred?
A. It was sometime in the last of October or the first of November, I think
that was the first time that we ever talked about it.
Q. What was said?
A. I think he asked me had I joined, or something. I said I had signed a
card. He said "That does not mean anything that you signed the card."
Q. Did he say anything else?
A. No, sir.
Q. Did he say anything else?
A. That was all.
Q. When was the next time you spoke to Mr. Goodman about the Union?
A. I don't remember, but we were talking about it. It came up some
way. He said, "As long as you treat me right I will treat you right." He
said, "You will not have to join the Union to be treated right here." I said,
"Well as long as I am treated right, I do not care to join the Union."
Q. Did you ever discuss the Union with Mr. Goodman, after that time?
A. I don't think I ever did. I don't remember.
Q. Are you acquainted with Air. Benjamin Goldberger?
A. I met him I think the first time when he made a talk.
Q. At the plant?
A. Yes.
Q. Do you remember the approximate date of that talk?
A. I don't remember, but it was the last talk lie made while I was there.
Q. Do you remember anything Mr. Goldberger said in that talk?
A. I remember that he said, "Girls, we are going to give you a five-cent
raise." This is in general. He said, "We are not going to have any Union
here." He hit his fist on the desk three times.. He said, "I mean that thing,
or the plant is going away from here."
Goldberger's version of his first and second speeches :
A. I told Mr. Goodman that some of the employees had spoken to me
about this matter and I suggested that he have the power turned off a few
minutes before twelve o'clock, the lunch hour, and have some of the girls
come together so that I could talk to them. What I related to them was this.
NEWPORT NEWS CHILDREN'S DRESS CO., INC. 1529
I told them that a number of the girls had approached me about this Union
activity here and that they wanted to know whether it was true that if
they did not join the Union, their jobs were secure or whether they would
have to join the Union if the factory became unionized and what was their
position. I told them under the circumstances I thought it would be best
for me to explain our position in so far as their jobs were concerned. I said
to them that none of them needed to join the Union if they did not wish
to, that it was entirely up to them and that they did not have to join this
Union, or any other if they did not want to. So far as their jobs were con-
cerned, I promised them very definitely that their jobs were secure and
that their seniority in their particular jobs was secure regardless of whether
the Union succeeded in unionizing this factory or not. I said, "You need
not fear the union ; it is entirely up to you. If you do not want a Union,
you need not have one. If you want one it is entirely up to you."
A second speech was made by Goldberger to the employees about which he
testified as follows :
A. We had an election at the Harrisburg Children's Dress Company and
I was told when I got down here that the Union had circulated the employees
'through the distribution of pamphlets or band bills telling them that they
had won an outstanding victory in Harrisburg-that the Harrisburg Chil-
dren's Dress Company employees had won an election and, therefore, they
were now unionized, and that it was now their turn to follow the Harris-
burg Children's Dress Company employees. I do not recall what other
things they said. Oh, yes, then they also told the employees that this was
their last time, their last chance, and that they had better fall in line and
sign up.
Q. The second speech, you say, was made at the same time of day?
A. That is correct.
Q. Just before they went to lunch?
A. That is right.
Q. What did you tell the employees?
A. I told the employees that these pamphlets that were given out were
misrepresentatives because there were 312 eligible voters in this plant and
out of the 312, the Union won the election by two votes, and under the
circumstances, I did not think they won such a significant victory-that
these were still about half of the employees who did not want the Union.
I said that, therefore, they still did not have to have the Union regardless
of what number of employees in Harrisburg voted for the Union, that they
did not necessarily have to follow those who voted for it, but could follow
those who did not vote for the Union. I also told them that the Union had
circulated at the factories that if the employees of our other plants had
joined the Union, we would not have had this plant in Newport News.
I said : "The Union certainly was not interested in you then but rather in -
wherever they can join their membership. That is where their interest
lies." Thereafter. . . .
* * * * * * *
A. The Union told our other employees that if they had been unionized
they would have prevented us from opening the Newport News plant because
by opening this plant, it was taking away their work.
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Threatened Arrest of the Union Representative
On May 4, 1950, A. H. Safir, director of the International Ladies' Garment
Workers' Union in charge of organization for the Maryland-Virginia District,
went to the plant accompanied by Markoff and Kendrick. He stood by a window
.for about 10 seconds and upon hearing that a speech was going on, turned and
walked away. Safir was accosted by Goodman and told to leave the Company's
property. Safir, who carried a sheaf of handbills, said he understood he had
a right to come on company property to distribute literature. Goodman again
told them (Safir and Markoff) to leave, and then entered the plant. About
5 minutes later he came out and said, "Why don't you stay on the property?"
At this time police cars arrived on the scene; there were two troopers and some
plainclothes men. They conferred with Goodman and then informed Safir that
if he came on company property he would be arrested for trespass. Safir
replied that he understood he had a right to distribute this literature and it
was important that he do so as he had no other way of getting it to those
employees whose cars were parked on company property ; he suggested to the
-police officer that he check his information. The police officer went into the
plant and when he returned he told Safir he had called the Commonwealth
.attorney ; that the Commonwealth attorney said it would be a trespass if he
went on company property under the circumstances and that he would have
no other recourse than to arrest him if he did so. Safir asked whether that
meant if he went on company property he would immediately be arrested. The
police officer said, "no, he did not mean that, but if the Company informed me
not to come on the property and I went on, he would arrest me." According
-to Safir's testimony, Goodman ordered him, in the presence of the police officer,
not to come on company property. Safir asked the police officer what the penalty
would be, and he answered 6 months in jail or up to $500 fine. Safir attempted
to distribute leaflets as the employees were on their way to the bus across the
street. The bus stopped there about 5 to 10 minutes before the plant let out,
and as the bus pulled in he ordered his associate to go across to the bus and
to distribute leaflets there. They distributed leaflets to everybody who boarded
that bus and no one interfered.
B. The discharge of Catherine S. Kemp
Kemp was employed by Respondent, when it opened its plant in June 1948, as
a machine operator on piecework with a guaranteed hourly minimum of 55 cents.
Her earnings exceeded the guaranteed minimum after the first 2 pay periods with
the exception of a very small deficit in the fifth pay period. For 12 pay periods
thereafter she substantially exceeded the minimum ; the next pay period she had
a deficit of $8.93. Goodman spoke to her about her work; he would pass her
machine and run his hand under the collars that she had worked on and toss
them up in the air-she had not cut the braid. He would say "Fix that work
right." Mr. Goodman took this bundle of work and went down to the other end
of the factory and set up another machine to run braid on collars. Shortly after,
he brought a collar back and told her to move the gauge on her machine. When
Kemp asked "why?", he said the gauge was not right. Goodman said, "Will you
please move it?" and she replied, "I will not move it, because I have run five
or six other bundles of collars with the gauge where it is." On one occasion he
walked around behind her and tossed her work up and said, "That is a hell of
a mess." Mr. Goodman sent Elizabeth back a third time to tell her he meant
business and that if she could not come out (rest room) right then, she could
NEWPORT NEWS CHILDREN' S DRESS CO . , INC. 1531
take her purse and coat and go home. She came out in 3 or 4 minutes. Things
were going smoothly until the bell rang at a quarter to one, when Roy called
Mr. Goodman and said she had a couple of dresses with slipped stitches in the
collar. Goodman stood over to the left of her machine and threw the dresses
in her face. His remark was that he "wanted the God-damned dresses fixed right
then." She took the dresses and laid them in her box. He came and asked her
if she had fixed those dresses yet. Every time he spoke to her that afternoon,
he swore. He again came by and said, "Have you fixed those God-damned dresses
yet." Goodman came back a few minutes before the bell rang, and asked her to
remain after the bell rang. She told him the bus waited for no one and she was
going on the bus. Next morning she went in and had work which she should
have finished the day before ; she finished it around 10 o'clock. Goodman said,
"You are to go into my office." She said she would go in the office when Mrs.
Ambrose and Elizabeth went in with her. When they got to the office he said,
"Elizabeth, you and Margaret can go back to work. I guess Catherine wanted
you to hear her being sent home." She was discharged by Goodman because :
(a) her production slowed down; (b) she refused to repair her own work; and
(c) she refused to perform the operations that were picked out for her. Markoff,
the local representative of the Union, met Goodman several days afterward and
told him that Kemp was in desperate financial difficulties. That she had nine
children to support and unless she had some source of income, she would have
to send them to a home ; also that if she was reemployed, he would see that she
would behave herself in the future. Goodman agreed to take her back on the
condition that she behave herself and that she understand that she was being
taken back at Markoff's request and that he did not want any more problems
with her. She came back to work the following Monday.
Goodman called her to the office when she first came back and told her there
was no more of this particular type of operation to be performed and asked her,
since she was starting all over again, what type of operation she wanted to per-
form, or that she best could perform and make her rate. She wanted the front
work, which is a fairly important operation on the dresses, because it shows.
Goodman did not think she was capable of performing it. He told her that he
would try her on various operations and maybe a suitable one would be found..
After her return there was a deficit of $19.96 for the first 2 weeks, $15.11 for the
second 2 weeks, $14.32 for the third 2 weeks, and $4.99 for the last week and a
half. She was being paid almost half again as much as she earned. Goodman
discussed the situation with her. She told him she was trying her best, but that
she was going through the change of life at that time and it required that she
spend a great deal of time in the ladies' room, and that she was under a doctor's
care. Goodman was willing to see her through for a reasonable length of time.
On January 24 a line of spring work was finished and 8 or 10 employees were laid
off. Kemp was one of them. After she left, one of her coworkers went to
Goodman and asked if there was some way in which he did not have to reemploy
Kemp. She said Kemp had used vulgar language to her in connection with the
work. Goodman received information that Kemp had been in trouble with the
police authorities. He called on a Mr. Newman, assistant city attorney, and he
got a record from the police department for him. Goodman first heard of such
record on January 24, 1949. After receiving it, he called Mr. Teller, Respondent's
attorney , in New York-
A. As I said, I called Mr. Teller when I received this information.
Q. (By Mr. Teller) This information from whom?
A. The Police Department. I called you the morning of the 25th.
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Go ahead.
A. Mr. Teller said I should discharge her on all accounts. I have. to go
back a minute. He asked me if it was generally known in Newport News
that this had occurred. I told him it had been in the newspapers and prob-
ably everybody in Newport News knew about it except myself, who had
arrived in Newport News about six months after it occurred. He said• that
would probably harm us in getting employees, since everybody knew about
it. He also stated that since we employed other women and young girls,
we would be liable if through their association in the factory with Mrs.
Kemp these girls got into trouble or got contaminated in the factory in one
way or another.
Q. And you, therefore, discharged Mrs. Kemp?
A. Yes.
Q. How many employees did you have then?
A. I guess about forty or fifty.
Q. Of those, how many were girls?
A. All but one..
Q. In what general age group were they?
A. From 18 to 50.
Q. In what age group were most of them?
A. I imagine we had probably twenty girls under 24.
C. The discharge of Emma Upton Presson
Presson started work for Respondent on the opening of its plant in June 1948;
she was employed on piecework with a guarantee of 55 cents per hour. At first
she worked on different operations. The second week she was put on joining
shoulders-joining the front and back together on a pinking machine. She
worked on that operation until September 1948 when she asked Mr. Goodman to
take her off the operation because she could not make production. Goodman as-
signed her to making "darts." If she could not do that, he offered to let her try
something else. She joined the Union in October 1949. She was put back on
the shoulder joining operation about the last of November 1949 and she was
on that operation about 5 weeks.
Q. What was said and what were the circumstances of your being laid off?
A. Well, Mr. Goodman wanted to pui me back on the shoulder joining;
he said he could not keep me on the darts and he wanted me to take the
shoulder joining. I said, "Mr. Goodman, I have never told you yet that
I would not do what you asked me to do for you." He said no, I had not.
I said, "well, I am going to try again to do what you ask me to do ; but I
do not know whether I can make out on it." So, he put me back on shoulders,
and I still could not make production. So me and another lady talked to
Johnny House, the forelady at that time, to see if we could.get a better
price. So he talked to Mr. Goodman about it, and she told us Mr. Goodman
said it was not quite enough and he was going to adjust the price of some
of the operations in January, and that would be one of them. So we went
on as we were doing until the 19th [December 1949]. He called me up to
the desk. I took in a bundle, a finished bundle. Then I got another bundle;
of work, which was a larger job because the shoulder was longer. He said,
"Emma, you know that the story is ; if you don't make production you have
got to be let off." I said, "Mr. Goodman, I have started this bundle of work
NEWPORT NEWS CHILDREN ' S DRESS CO ., INC. 1533
and I should like to finish it." So he let me stay there until twelve o'clock
to finish the bundle of work. When I got through I asked him to pay me
for it. He said, "you want your bonus, don't you?" I said, "yes." He said,
"If I pay you now, I cannot give you the bonus [Xmas] but if you wait until
Friday, I can." So, I waited until Friday, but I never did get the right
amount.
Presson received the bonus of 10 dollars. Her hourly guarantee was increased
to 65 cents per hour about 1 year after she commenced working, at the request
of Goldberger, general superintendent of the affiliated companies, and shortly
thereafter to 75 cents at her request.
The Company had a rule that an employee who was employed for more than
6 months should be increased to a minimum of 75 cents an hour. It was nothing
hard or fast but it was more or less a rule of Goldberger that if an employee was
with the Company for at least 6 months and was not worth 75 cents an hour,
there was no point in keeping the employee. At the time that Presson was
guaranteed 75 cents an hour and assigned to the shoulder operation, she was told
by Goodman that he could no longer allow her work to be confined to "darts"
and "belts" as these operations were used for training new employees. She
was assigned to "shoulders," taking a job that had just become vacant; she
was unable to make production. Before Goodman discharged her he asked if
she thought that there was any operation in the factory, other than "darts"
and "belts," on which she could make production and she said "no."
At the time she got the increase, Goodman made it a point to discuss it in
Goldberger's presence because he did not think she could earn that amount an
hour with any degree of regularity and he wanted her to know that he did not
think she could and if she did not, he would have to dismiss her.
D. The discharge of Myrtle Jean Kendrick
Kendrick commenced work for the Respondent November 11, 1948, as a piece-
work operator with a minimum wage of 55 cents per hour. Her last day was
March 17, 1950. She joined the Union the latter part of January 1949 and
was active in union affairs. Several of the girls came to her and asked how to
get in touch with someone as they wanted to organize and thought by organization
they would get fair treatment. Kendrick got in touch with the Union in
Baltimore, Maryland, and application cards were mailed to her. She had 11
girls at her home December 9, 1.949, and they signed the cards. Girls at the
shop and those going home in her car asked for cards. Approximately 37 or 38
signed up in the Union between December 29 and the latter part of February 1950.
Kendrick was present and testified at the representation hearing held on March 3,
L950. She went to work on March 8. She was wearing her union button in
plain view so that anyone who looked toward her could see it. On that day she
came out of the ladies' rest room as Goodman was at the work bench where he
and the mechanic repaired machines. He called her over and asked if she was
sick. She said no, other than a bad cold. He said, "you have been in the rest
room four times this morning." She told him that was due to the fact that she
had taken cold medicine. He asked her how much money she had made that
morning. She went to the office and brought a slip back showing she had made
$2.86. He said, "You had better average around 75¢." That afternoon as she
was finishing the last lot of collars, Goldberger came down and had a slip of
paper from the adding machine showing her earnings. He stated that he was
not going to pay a deficit to her or any of the girls, that if they could not make
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
75 cents an hour he was going to tell Goodman to replace them. She worked
from March 8 through March 17; the week of the 20th she was sick. She
did not report on Monday, March 20; on Tuesday, she called the plant stating
that she was ill and told the office girl she would try to get in the next day,
Wednesday; but if she did not feel well enough to work the rest of the week
she would be in on Monday, March 27. On that day she reported for work.
Her card was not in the rack. She asked the office girl why it was not there and
was referred to Goodman. He asked her why she was not there the week before
and she said that she was sick with a heavy cold. Goodman wanted a doctor's
report. Kendrick went to Dr. Lee Todd who referred her to a Dr. Herbert Myer.
She returned Dr. Myer's report to Goodman. The doctor's certificate did not
indicate in any place on it that she could not have worked the prior week.
Goodman said he was going down to see Dr. Myer. Kendrick did not work after
that day. She was absent from September 28 to November 28 and when she did
return she was given a new clock number and was considered a new employee.
Her Christmas bonus was given her based upon her having been employed less
than 3 months. On her return to work Goodman told her he wanted her to be
more reliable than she had been during her previous term of employment. Her
record of absenteeism was greater than that of any one else in the plant. Start-
ing with the first pay period of 1949, she missed 8 hours in the first week and the
entire second week. The second pay period she missed 8 hours in the first week.
The third pay period she did not miss any time. The fourth pay period she missed
the entire second week. The fifth period she missed 20 hours in the first week
and the entire. second week. Oa the sixth period she missed the entire first week
and 2 hours in the second week. In the seventh pay period she worked the full
80 hours. In the first pay period of the second quarter she missed 8 hours the
first week and the entire second week. In the second pay period of the second
quarter she missed 8 hours of the first week. In the third pay period she missed
3 hours of the second week. In the fifth pay period she missed 11 hours of the
first week and 24 hours of the second week. She worked the entire sixth pay
period. In the third quarter of 1949 she missed 16 hours in the first week and
the entire second week. In the second pay period she missed the entire first
week and worked overtime for 3 hours in the second week. In the third pay
period she missed 13 hours in the first week and 11 hours in the second week.
In the fourth pay period she missed 22 hours in the first week and worked the
entire second week. In the fifth pay period she missed 3 hours in the first week
and 24 hours in the second week. In the sixth pay period she missed 3% hours
in the first week and IS hours in the second week. In the seventh pay period she
worked the entire 2 weeks. In the fourth quarter she missed 18 hours of the
first week. She did not work from then until November 28, when she returned
to work and was given a new clock number. She asked for a leave of absence
in February 1950, after returning to work in December 1.949. She was granted
that leave of absence but was told that it was hoped that would end this ab-
senteeism. The first time she quit, but the second time she was granted leave.
The second time she was taken back as an old employee.
On Friday, March 17, 1950, she asked to have the afternoon off. She was
expected to be back on Monday but she did not report on Monday. She phoned
on Tuesday and said she was sick and that she would be in on Wednesday
morning. In the meantime there was work for Kendrick making collars. It is
one of the primary operations ; work of others depended upon it. If it is not
performed it means that other employees have to be laid off or cannot get in
their work. As a result of her absences Goodman had to pass out the collars to
NEWPORT NEWS CHILDREN' S DRESS CO., INC. 1535
three other employees who were not in the habit of performing the collar opera-
tion. Kendrick reported for work Monday, March 27. Goodman told her that.
she had upset the entire schedtlle for the previous week and that before she
was taken back she would have to furnish a medical certificate from a doctor,
stating that she was incapable of coming to work the previous week. Kendrick
first went to Dr. Lee Todd who referred her to Dr. Herbert Myer. She brought
his certificate to Goodman. He told her the certificate she brought and a conver-
sation he had had with the doctor did not substantiate that she could not have
worked the previous week. He also told her that since she was apparently
working at her convenience, he could not afford the luxury of having that type of
employee when production was needed.
Kemp's discharge was in no wise violative of the provisions of the Act. She
was discharged by Respondent for good and sufficient reasons. She was not a
credible witness. On her direct examination she testified to many facts which
were controverted by substantial evidence based on substantial, believable,
authenticated records of Respondent, also by the credited testimony of Goodman,
who, in the opinion of the Trial Examiner, was honest, conscientious, and a truth-
ful witness who gave a clear-cut logical recital of the facts justifying his actions
in discharging her. Her discharge was in no wise the outcome or result of any
union activities on her part.
Prusson's discharge was occasioned by her lack of speed and her inability to
keep pace with her work and is based on substantial evidence. While she worked
on "darts" and "belts" she was able to keep abreast of her work, but as these
operations were comparatively simple they were given to the new employees by
Respondent so that they could perfect themselves in operating the machines. It
was the rule of the Company that an operator who could not command 75 cents
an hour after 6 months' work was a loss to the Company and was not kept at
work. The Trial Examiner finds Presson to be a fairly credible witness. Her
testimony, however, corroborated that of Goodman as to her slowness and lack
of ability to meet the requirements of Respondent on production. While she
testified as to certain antiunion activities, hereinafter mentioned,'on the part of
Respondent's officers, it is accorded to have no weight, on the question of her
discharge, by the Trial Examiner. Goodman wanted production. He hired some
employees upon the recommendation of the local union agent. He had orders
to take on additional employees tc, increase the production of the plant. Reason-
ably there were many union members in Respondent's employ whose union activi-
ties and leadership would be far more.effective in unionizing the employees than
Presson if be desired to discharge employees for union activities. Her discharge
by Respondent was justified. The Trial Examiner finds that there is substantial
evidence that it was not motivated by any union activities on her part.
Kendrick's discharge was justified by her absenteeism. She was given full
opportunity by Goodman to correct her ways. She was warned that Respondent
would not tolerate her unannounced absences. The work of fellow employees was
seriously retarded when she absented herself. Her absence for the week pre-
ceding her discharge was the last straw. Her testimony that she had been home
sick and in bed was thoroughly discredited on cross-examination. The Trial
Examiner credits Goodman's testimony supported by Respondent's records as
honest and believable as to the reasons for her discharge. Substantial evidence
is found to justify the Respondent in discharging her as an employee.
The episode of the threatened arrest. The Trial Examiner is of the 'opinion
that the police officer rightly advised Safir, the director of organization of the
Union, that if he insisted on going on the. premises of the Respondent without
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permission and against his orders he would be a trespasser and liable to prosecu-
tion by the authorities. He was not an employee of the Respondent and clearly he
was acting contrary to the law 2 as.he was advised by the police officer based on
an opinion of the Commonwealth attorney. The action of the Respondent in
calling upon the police authorities, under the circumstances, was not an unfair
labor practice on.Respondent's part under the provisions of the Act.
Analysis of Conflicting Contentions and Conclusions
The speeches of Goldberger and the acts of Goodman. On the credited testi-
mony of Fountain and Presson, there is substantial evidence which justifies the
conclusion that Section 8 (a) (1) of the Act was violated by Goldberger, presi-
dent of an affiliated company and general superintendent of Respondent, in
making extemporaneous speeches to the employees in which the following lan-
guage was used by him :
"We are not going to have any Union here," he hit his fist on the desk three
times. He said, "I mean that thing, or the plant is going away from here."
"He said he was not going to accept the Union, was not going to deal with
it and that if they won he would move the plant back to Harrisburg."
and by Goodman interrogating the witness Fountain as follows :
Q. What was said?
A. I think he asked me had I joined, or something. I said I had signed
a card. lie said, "That does not mean anything that you signed the card."
Q. When was the next time you spoke to Dir. Goodman about the Union?
A. I don't remember, but we were talking about it. It came up some
way. He said,."As long as you treat me right I will treat you right." He
said, "You will not have to join the Union to be treated right here." I said,
"Well, as long as I am treated right, I do not care to join the Union."
and the witness Presson, as follows:
he said some of the girls had been complaining to him about me. I
said, "what are the complaints? I did not know that I have any enemies
in here." He said, "I do not know whether you will tell me the truth or
not." I said, "I have never told you a story yet." He said, "Well, they
said you have been talking the Union to them."
The Trial Examiner finds that Respondent interfered with, restrained, and
coerced its employees in the exercise of their rights under Section 7 of the Act„
in threatening the removal of the plant, interrogating the employees as to
their union activities, and discouraging membership in the Union.
1V: THE EFFECT OF THE UNFAIR LABOR PRAcTiCES ON COMMERCE
The activities of the Respondent set forth in Section 111, above, occurring
in connection with the operations of the Respondent described in Section I,
2 "Section 18-225. Trespass after having been forbidden to do so. If any person shall
without authority of law go upon or remain upon the lands or premises of another, after
having been forbidden to do so by the owner , lessee , custodian or other person lawfully
in charge or possession of such land, he shall be deemed guilty. of a misdemeanor, and
upon conviction thereof shall be punished by a fine of not more than twenty-five dollars.
"This section shall not be construed to affect in any way the provisions of 29-165 to
29-170 (7934 p. 248 Michie Code 1942 , Sec. 4480a).
"Code of Virginia Title 1,8-Sec. 225."
NEWPORT NEWS CHILDREN'S DRESS CO., INC. 1537
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
It having been found that the Respondent has engaged in certain unfair labor
practices, it will be recommended that it be ordered to cease and desist there-
from and take certain affirmative action which, it is found, will effectuate the
purposes of the Act. In order, therefore, to make effective the interdependent
guarantees of Section 7, to prevent a recurrence of unfair labor practices, and
to minimize strife which burdens and obstructs commerce, and then to effectuate
the policies of the Act, it will be recommended that the Respondent cease and
desist from infringing in any manner upon the rights guaranteed by Section 7
of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Ladies' Garment Workers' Union, A. F. of t., is a labor
organization within the meaning of Section 2 (5) of the Act.
.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed In Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. The Respondent did not violate Section 8 (a) (3) of the Act by discharging
Catherine Shields Kemp, Emma Upton Presson, and Myrtle Jean Kendrick.
[Recommended Order omitted from publication in this volume.]