Northside Sportswear, Inc.

National Labor Relations Board - Board Decisions

Oct 5, 1964

148 N.L.R.B. 1528 (N.L.R.B. 1964)

1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain or refrain from becoming mem-
bers of the above-named Union, or any other labor organization , except to the extent
that such right may be affected by an agreement in conformity with Section 8(a)(3)
of the National Labor Relations Act.
CONSOLIDATED AMERICAN SERVICES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 327 Logan
Building, 500 Union Street , Seattle, Washington , Telephone No. Mutual 2-3300,
Extension 553, if they have any question concerning this notice or compliance with
its provisions.
Northside Sportswear, Inc. and Amalgamated Clothing Workers
of America, Local No. 694, AFL-CIO. Cases Nos. 12-CA-2817
and 12-CA-2846. October 5, 1964
DECISION AND ORDER
On July 16, 1964, Trial Examiner George J. Bott issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act and recommending that it cease and
desist therefrom and take certain affirmative action , as set forth in the
attached Trial Examiner's Decision. Thereafter, the Respondent and
the General Counsel filed exceptions to the Trial Examiner's Decision
and supporting briefs. The Charging Party, Amalgamated Clothing
Workers of America, Local No. 694, AFL-CIO, adopted the General
Counsel's exceptions and brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner?
1 The Trial Examiner inadvertently reports the date Dyess gave union cards as Novem-
ber 18 instead of November 19, 1963.
2 The findings of the Trial Examiner are essentially based on resolutions of credibility
issues in the case. It is well settled Board practice not to overrule a Trial Examiner's
resolutions as to credibility , except where the clear preponderance of all the relevant evi-
dence convinces us that the Trial Examiner 's resolutions were incorrect . Standard Dry
Wall Products, Inc, 91 NLRB 544, 545, enfd . 188 F. 2d 362 (C .A. 3). No such conclu-
sion is warranted in this case.
148 NLRB No. 150.
NORTHSIDE SPORTSWEAR, INC. 1529
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board adopts, as its Order, the Order recommended by
the Trial Examiner and orders that Respondent, Northside Sports-
wear, Inc., Miami, Florida, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order.3
s The Trial Examiner's Decision Is modified to provide for the posting of the notice in
Spanish as well as in English.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge of unfair labor practices in Case No. 12-CA-2817, filed on Decem-
ber 31, 1963, and a charge and amended charge in Case No. 12-CA-2846, filed on
February 13 and March 2; 1964, the General Counsel of the National Labor Relations
Board issued an amended consolidated complaint and notice of hearing dated
March 6, 1964, alleging that Northside Sportswear, Inc., herein called Respondent or
Company, had violated Section 8(a)(1) and (3) of the National Labor Relations
Act, herein called the Act.' Respondent admitted certain allegations of the com-
plaint in its answers but denied the commission of any unfair labor practices and a
hearing was held before Trial Examiner George J. Bott at Miami, Florida, on
March 23, 24, and 25, 1964. All parties were represented at the hearing. Sub-
sequent to the hearing General Counsel and Respondent "filed briefs which I have
considered.
Upon the entire record 2 in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a Florida corporation engaged in the manufacture of shirts and
other wearing apparel at its plant in Miami, Florida. During the year ending De-
cember 31, 1963, Respondent derived revenue in an amount exceeding $50,000 for
the performance of services for employers who, each in turn, annually sell and ship
to points outside the State of Florida, goods and materials valued in excess of $50,000.
I find that Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America, Local No. 694, AFL-CIO, herein
sometimes referred to as the Union, is a labor 'organization within the meaning of •
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged discriminatory discharges
1. Addie Dyess and Josephine Muncey
Dyess and Muncey did the same kind of work while employed by Respondent and
Respondent's asserted reason for discharge is the same in each case. For these
reasons and because there are other common factors in their employment histories,
their cases may be considered together.
1 The original complaint and notice of hearing was Issued on January 29, 1964 The
amended complaint added the name of Annabelitz Ferriol to those allegedly discriminated
against. The complaint was further amended at the hearing to delete the name of
Blanche Rippy.
2 General Counsel's motion to correct the transcript, which Is unopposed, is hereby
granted.
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Northside Sportswear is considered a "contractor" rather than a "man-
ufacturer" in the garment industry. As a contractor, its income is obtained from
performing the service of sewing the garment together for a manufacturer. It is the
price given the manufacturer for sewing the garment together less cost of the sewing
service that determines the contractor's income. On the other hand, a manufactur-
er's gross revenue is governed by the sale price of the garment to the trade.
Northside began operations in August 1962, with Irving Landsman as its president
and chief operating official. Landsman had been employed in the garment industry
for 18 years, and, for 10 years preceding the beginning of Respondent's operations,
Landsman was the supervisor of Dyess and Muncey at Robinson-Weinberg, another
garment firm. Robinson-Weinberg made sport coats, but Respondent manufactures
shirts. Dyess and Muncey did "pocket-setting" at Robinson-Weinberg and were em-
ployed at that operation at Northside. Pocket setting on shirts entails the same skills
as pocket setting on coats, but an employee transferring from coats to shirts requires
a little time to adjust to the difference in materials.
While Dyess was still employed by Robinson-Weinberg, but on a seasonal layoff,
Landsman telephoned her and asked her to come to work for him as a pocket setter.
Dyess began to work for Respondent on August 11, 1962, and during her first week
of employment Respondent paid her makeup pay .3 Dyess testified without contra-
diction, and I credit her testimony, that when she saw she was not making her quota
she discussed the subject with Landsman at her own request. Dyess told Landsman
that she was dissatisfied because she was not making the quota and wanted to quit.
Landsman said it was not her fault and persuaded her to stay.
A short while after Dyess was employed by Respondent, her old employer, Robin-
son-Weinberg, asked her to return to work. She testified credibly that she discussed
this with Landsman and he attempted to persuade her to stay with him. Landsman
pointed out to Dyess that she lived close to his shop, and he, also told Forelady Nan
Childress that Dyess should stay with them. After thinking about it for a few days,
Dyess decided to stay with Respondent. -
Dyess signed a union card on October 22, 1963. She went to a union meeting at
the Union's hall on N.W. 2d Avenue between 28th and 29th Streets, Miami, Florida,
on Monday, November 18, 1963, about 5 p.m. The meeting was attended by eight
of Respondent's employees. Morris Lerner, who operates a sewing machine business
at 2232 N.W. 2d Avenue, testified and I credit his testimony, that Irving Landsman,
a customer of his, visited his office about 5 p.m. on a Monday in November or Decem-
ber. After a short conversation, the two men drove north in Landsman's car on 2d
Avenue to 28th Street. At that point Landsman said, "What is my help doing
here ...." Lerner saw some girls standing on the sidewalk.
On November 18, 1963, Dyess 'gave union cards to three employees and asked
them why they had not attended the union meeting on the previous day.
Dyess testified that she had a conversation with Landsman on Friday, November 22,
1963. According to her, Landsman asked her why she and Muncey "could do
such a thing to him" when he had been so good to them. Dyess asked for an ex-
planation and Landsman said that after he had dismissed Nan Childress (Muncey's
sister), Dyess and Muncey had "devoted considerable time to union activities."
Landsman told Dyess that he did not think it "nice" for Dyess and Muncey to try
to get a union in the shop in view of the fact that he had to pay them makeup pay.
He stated that his accountant had called his attention to the fact that he had to pay
$97 in makeup pay to employees that week. He said that he was starting a new
policy and that those employees who failed to make their quotas and had signed union
cards would be discharged.
Dyess reminded Landsman of a conversation she and Muncey recently had with
him in which she and Muncey had offered to leave Respondent's employ because they
had not made the quota on a certain operation. According to her, Landsman told
the employees at that time that he "depended" on them and insisted that they stay.
Dyess also pointed out to Landsman that she had earned $1 over the quota on the
day before. Landsman replied that she had not been making the quota and he had
no more work for her.
8 Respondent is covered by the Fair Labor Standards Act and under present standards
must pay employees at the rate of $1.25 an hour. Dyess and Muncey were on piece work
and the price per hundred pockets was set by Respondent. When employees on piece-
work basis do not earn enough at the fixed rate to equal the minimum required by law
the employer must make up the difference and that difference is called makeup pay.
NORTHSIDE SPORTSWEAR, INC. 1531
Josephine Muncey had also been employed for many years at Robinson-Weinberg
under Landsman's supervision but she was in layoff status in the summer of 1962.
Muncey's sister, Nan Childress, was working for Landsman as a forelady at this time,
and he asked Childress to recruit Muncey for employment at Respondent. Childress
did so, and Muncey had an interview with Landsman in which he told her that she
would do just as well with him financially as she did at Robinson-Weinberg. She
started to work for Respondent in September 1962 as a pocket setter. Later in the
year she was recalled by Robinson-Weinberg but did not accept employment.
The record shows that Respondent paid Muncey makeup pay for 1 week in Sep-
tember 1962, one in October, and four in November 1962. She testified that she
then told Landsman that she could not make money on the job and offered to quit.
I credit her testimony that Landsman persuaded her to stay with him.
In July 1963, Muncey quit her employment while on vacation and asked Forelady
Childress to tell Landsman, which she did. Landsman expressed regret and told
Childress he wished Muncey would return and help them out.
During Muncey's absence, Landsman asked Childress to see if she could get Ann
Zappolo to come to work to set pockets while Muncey was on vacation . He com-
mented to Childress that Zappolo was a good operator. Childress got Zappolo and she
was hired as a pocket setter. Childress had no complaints about her work.
After Muncey returned home from her vacation, Landsman telephoned her and
said it did not seem right for her to be out of the shop because they had been together
for years. Muncey professed loyalty to Landsman and said she would return to
work if he needed her. During the next week Landsman telephoned her again and
she agreed to come back. When Muncey returned to her old job, which she kept
until her discharge, Zappolo was transferred to other work.
The above testimony about Muncey' s resignation and return to employment at
Landsman's request is uncontradicted in all material respects, and I credit it. Muncey,
like Dyess, also testified to a conversation with Landsman about 3 or 4 weeks before
her discharge in which she told Landsman that she and Dyess were doing the best
they could and would quit if Landsman were not satisfied with their work. This
conversation grew out of a request Landsman made to Childress to ask the employees
to try harder to make the quota I credit Muncey's testimony that Landsman again
refused to let the employees quit and told them that he depended on them.
Muncey signed a union card on November 14, 1963, and attended the union meet-
ing on November 18. On November 20, 1963, Landsman discharged her. Muncey
testified that Landsman told her he would have to let her go "because of makeup
pay" and because she "wasn't making out." Muncey asked Landsman why he chose
her when ". . . the rest of the girls weren't making out either, Addie (Dyess) wasn't
making out." Landsman repeated that the employees had too much makeup pay
and he was going to discharge all employees who were not making their quota.
Muncey again asked Landsman why he was letting her go and Landsman asked
her, "What do you think?" Muncey inquired if it was because of her sister, Nan
Childress, or "something that I have been accused of." Landsman replied that it
was ". . . partly on account of Nan." Muncey's account of her conversation with
Landsman is essentially the same as his, and I credit it.
Respondent's position in regard to Dyess and Muncey is, in brief, that they were
discharged because Respondent was required to pay them makeup pay. Sanford
Caplan, a certified public accountant, was employed by Respondent in June 1963.
Caplan prepared a financial statement which was delivered to Respondents in the
first part of October 1963. Caplan testified that he had discussions with Landsman
about his direct labor costs which is the main expense in Respondent's type of opera-
tion . He and Landsman discussed the problem of how to reduce this cost. He
testified that it was obvious to him and Landsman that makeup pay was a particularly
troublesome area. He testified that Respondent had a low net profit and that in order
to increase its profits it had to cut its labor costs.
Caplan also stated that in his discussions with Landsman he discussed the increase
of the minimum wage from $1.15 to $1.25 required by the 1961 amendments to the
Fair Labor Standards Act which would be effective September 3, 1963. Caplan had
his first discussions with Landsman about labor costs in July 1963 and continued them
in. every month thereafter. He said he "very possibly" told Landsman in August
that his labor costs were too high because they "discussed this practically every
month ." Makeup pay specifically was discussed as early as July or August 1963,
at a time when Landsman had also received a Government circular about the Sep-
tember increase in the minimum wage . Caplan's information about the amount of
makeup pay came from Landsman, he said, for he did not examine original docu-
ments reflecting the amount of makeup pay. He admitted that there were still em-
ployees on makeup pay at the time of his last visit to the plant a month before he
1532 DEOISIONS OF NATIONAL LABOR RELATIONS BOARD
'testified in this case. He stated that he would not know whether makeup pay had
increased or decreased in the period from November 1963 to March 1964 without
examining the Company's records.
Landsman testified that he discharged Dyess and Muncey for the same reason;
namely, "continuous make-up" pay. He said that the effect of his conversations with
Caplan, his accountant, was to bring home to him the fact that Dyess and Muncey
would have greater makeup pay if their production did not increase because of the
increase in the minimum rate. He identified exhibits that show that Muncey and
Dyess frequently had makeup pay during the course of their employment. He stated
that he had in the past fired a pocket setter for too much makeup pay. The employee,
Fannie Kapner, was hired about the same time Dyess was but lasted only a few
months.
Dissatisfied with Dyess and Muncey, Landsman consistently sought a better pocket
setter, trying out various employees, and, finally, so he testified, he found Kitty
Greenlee, who he hired to replace Dyess and Muncey. Today Greenlee does all his
pocket setting without makeup pay, he said. Landsman was not sure when Greenlee
was hired but thought it might be around the latter part of October 1963. A record
read into the record by Respondent's counsel, however, shows that employee Kitty
Greenlee was paid at a certain rate for operation 754 on October 9, 1963. She,
therefore, was employed as early as that date.
Landsman described the discharge of Dyess as follows: He said he called Dyess
aside and told her he was sorry, but he had to ". . . let you out because of make-up."
Dyess' response , according to him, was, "I knew it was going to happen; as soon as
Kitty Greenlee come into work you would let us go." By "us" she meant her pocket
setting partner and herself. Dyess denied making such a response.
' Regarding Muncey's discharge, his account was basically the same as Muncey's.
He said he told her he was sorry but he would have to lot her go because she was
being paid too much makeup pay. Mrs. Muncey said, "Why pick on me?" He replied
that he had to start somewhere. Muncey asked if there was anything else and he
said no. She asked if her sister Nan Childress was involved in the decision and
Landsman said she might be. Landsman explained that Nan Childress quit the
Company in November because she was dissatisfied with her salary.
Landsman said he would have fired Dyess and Muncey when they started drawing
makeup pay but he had been unable to find a suitable replacement. He testified
that he never mentioned the Union in any way to Dyess and Muncey, or any other
employee, and did not know anything about the Union's attempt to organize the
Company until on or about December 31, 1963, when he received a copy of the
charge filed by the Union from the Board.
I do not credit Landsman's testimony that he had no conversation of any kind with
any employee about the Union and was ignorant of the Union's attempt to organize
his employees until he was served with a copy of the original charge of unfair labor
practices. I find that he learned of the union meeting on November 18, 1963, or
very soon thereafter, and that he was aware of the union activities of his employees
before the alleged discriminatees were discharged.
In the first place, Addie Dyess impressed me as a more exact and credible witness
than Landsman in her more detailed accounts of her conversations with him at the
time of her discharge as well as those about makeup pay generally during her employ-
ment. Landsman, on the other hand, gave the impression of trying to obscure issues
instead of clarifying them. I credit Dyess' testimony about her conversations with
Landsman, and I find specifically that, on November 22, 1963, Landsman told Dyess
that she and Muncey had devoted "considerable time" to union activities, he was
unhappy about it, and would discharge employees who had not made their quotas
but has signed union cards.
Additional evidence of Respondent's knowledge of its employees' activities is found
in the testimony of Amador Capellini, which I credit. Capellini is a cutter in Re-
spondent's employ. He testified that, at or about the time Muncey was discharged,
Landsman mentioned the Union to him and asked him whether he liked it or not.
Capellini replied that he liked the Union' and Landsman asked him if he had been
given a card. Capellini told Landsman that he had not received a card and Landsman
told him that he should not sign one because it would be "inconvenient " Landsman
denied the conversation. I have taken into consideration Capellini's inability to quote
Landsman's exact language and his uncertainty as to the exact time of the incident.
On the other hand, he testified dispassionately and without exaggeration, attributing
to Landsman favorable as well as unfavorable remarks. He appeared to be a dis-
interested witness with no reason to speak untruthfully about his employer. On the
basis of these considerations, I credit his testimony.
NORTHSIDE SPORTSWEAR, INC. 1533
Olive Avant is an employee of Respondent . Avant , in my opinion , based upon my
,observation of her, testified reluctantly against her Employer. She was somewhat
vague about details, but this must is clear from her testimony. There was a union
meeting in November 1963 but Avant did not attend it. About a week later she was
"motioned" into the Company's office and she and Mrs. Landsman engaged in some
conversation. Landsman was present during parts of the talk, at least. She testified
that ". . . they knew who went to the meeting." Although she was unable to say
whether Mr. or Mrs. Landsman made the statement, she testified that "What they
said was that they were a short distance down the street from where the union office
was, I'd say, and they knew the girls that went . . . and the ones that didn't go."
Landsman denied having a conversation with Avant in his office during which the
Union was mentioned. Despite the paucity of detail, I credit the testimony of Avant
and find that there was some conversation in Landsman's presence about the union
meeting during which Mr. or Mrs. Landsman admitted knowledge of the meeting
and of the identity of those who participated in it. This, taken with Lerner's testi-
mony about Landsman 's reaction when he saw some of his employees standing near
the union hall in November 1963, is some evidence that Landsman was not only
generally aware of union activity long before the end of the year, contrary to his
testimony, but also knew of the November 18 meeting and who attended it.
Gorema Tolliver, who is employed by Respondent, went to the union meeting on
November 18, 1963, with three of Respondent's pressers, including one "Naomi." A
few days later she had a conversation with Landsman. Landsman told her he knew
what was going on and was "surprised" at her. Tolliver admitted that she had gone
to a union meeting. Landsman told her he did not want a union in his shop; that he
would close the doors first. Landsman denied talking with Tolliver about the Union
or union activities. Although Tolliver thought the above evidence was contained in
an affidavit she gave the Union on November 19, which it is not, I am of the opinion
that her testimony is reliable? I find her testimony additional support for a finding
that Landsman knew- of the activities of some of his employees shortly after Novem-
ber 18, 1963.
2. Analysis, additional findings, and conclusions in the Dyess and Muncey cases
'I do not believe Respondent has rebutted the strong prima facie case General
Counsel established in regard to Dyess and Muncey, because I am unable to accept
Respondent's explanation for their discharges.. In my view, Respondent's asserted
reasons for termination in these cases are specious and pretextual.
Dyess and Muncey worked for Respondent almost from the day Landsman estab-
lished the Company, and from the first week of employment (the second in Dyess'
case) makeup pay was given them intermittently until their discharges. Landsman
recruited them for employment and, having supervised them for 10 years at their
previous employer, was aware of their skills and general competency. From the very
beginning of their employment with Respondent, makeup pay was a topic of discus-
sion, and, as I have found, both employees offered to leave Respondent if Landsman
was unhappy with their work, but were persuaded by him to stay. It was only after
Dyess and Muncey signed,union cards, attended a union meeting on November 18,
1963, and discussed the Union with other employees that Landsman suddenly dis-
charged them, and this but a few weeks after he had rejected their offers to quit on the
makeup pay issue, informing them that he depended on them. The timing of the
discharges, in the light of Respondent's knowledge of Dyess' and Muncey's union
activity and antipathy towards it, is particularly significant, especially when the
cause relied upon is something that had been in existence for over a year. In addition,
in Dyess' case at least, Landsman admitted that union activities and makeup pay
were the reasons for their discharge.5 It hardly needs stating that even if makeup pay
were a reason , the added determinative factor of union activity taints the discharges.
But in any event , the reason assigned as justification , I find , is specious.
' As set forth above, unhappy with their earnings, both Dyess and Muncey had
offered to quit in the past but had been dissuaded by Landsman. Muncey, moreover,
had actually resigned in the summer of 1963 but had been cajoled into returning to
' Tolliver was confused about the time relationship of her conversation with Landsman
and the statement she gave the Union. I find that she gave the statement before the
conversation and that is why there is no reference to it in the document. My observa-
ion of the witness during her examination on this point leads me to conclude that her
confusion was honest confusion not detracting from her testimony generally.
5 Conversely , I credit Dyess ' denial that she told Landsman that she knew when Greenlee
was hired that she and Muncey would be let go.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work by Landsman. In addition, Landsman said he raised the piece-work price on
the employees' operation because of their dissatisfaction with the price and that their
earnings thereup started to improve. The record also shows that both Dyess and
Muncey had an insignificant amount of makeup pay in the last few weeks of employ----
ment and that it had been steadily dropping for a month. In other words, their make-
up pay was highest when they offered to quit but were turned down and given a
raise, and lowest after they joined the Union and when they were fired. Landsman
testified that he raised their rates to keep them happy. It appears, however, that even
though the raise was effective and makeup pay practically disappeared,6 something
happened between the date of the raise in rate and the discharges to smother Lands-
man's interest in the happiness of Dyess and Muncey. It is a legitimate inference that
it was their union activities which caused this change in attitude.
Respondent's explanation for its retention of Dyess and Muncey for so long under
the circumstances just described is that Landsman was unable to find a good pocket
setter to replace the employees. Having found Kitty Greenlee, who needs no makeup
pay, he got rid of Dyess and Muncey. An added reason for the timing of his action
was that Dyess and Muncey would become more expensive to keep because the
amendments to the Wage and Hour Act had required him to raise his minimum rate
to $1.25 in September 1963.7 I do not credit Landsman's explanation of his delay in
replacing the employees. Landsman testified at one place in the record that he could
not let both employees go before he had a replacement because he would have to close
down his business if he did. Yet he admitted that while Greenlee was employed and
after he discharged Muncey and Dyess he had to advertise for an additional pocket
setter. Although he had retained Muncey and Dyess as long as he had despite their
inefficiency because he could find no replacement, he let both go when he had but one
employee to replace them. This inconsistency makes Landsman's testimony suspect.
In addition, Respondent did have an efficient pocket setter to replace Muncey in the
summer of 1963. It will be recalled that Muncey quit in July to stay home with her
family. Landsman had Foreland Childress recruit Ann Zappolo to set pockets,
describing her as a good operator. After Landsman persuaded Muncey to come
back to work he transferred Zappolo to another job. This is in direct conflict with his
statement that he was dissatisfied with Muncey all along and would have discharged'
her if he had a replacement. It also occurred after his accountant had spoken to him
about makeup pay, according to his and his accountant's testimony, and when he
knew the minimum rate was going up by law. Despite this knowledge and his abiding
desire to replace Muncey as an inefficient employee, and despite the availability of a
replacement. Respondent not only kept Muncey but hired her back after she quit and
kept her until she joined the Union. Nothing had changed, in fact Muncey had im-
proved and was practically making her quota, but Muncey had joined the Union 8
Greenlee was hired as early as October 9, 1963. Dyess and Muncey were not
discharged until late November 1963. The long sought replacement had arrived,
able to do the work of both employees, but Respondent kept them both until after
they joined the Union. All this in spite of the fact that they had offered to quit in
late October or early November. Respondent had missed an excellent chance to rid
itself of unwanted employees but delayed its decision for 6 weeks. The inference is
almost inescapable that the intervening factor of union activity precipitated the deci-
sion.9
Finally, I find that Landsman's testimony generally about the importance of make-
up time was exaggerated. In addition to the considerations pointed out above in
connection with the retention of Dyess and Muncey for a considerable period during
which they were paid makeup pay, Landsman's accountant testified that makeup was
still being paid to employees. Employee Mary Schwartz testified that she received
8 Muncev had no makeup pay in her last week
7 As a person with many years' experience in this industry Landsman must have known
when he entered business for himself in 1962 what his wage rates would be in 1963, for
the Fair Labor Standards Act amendments of 1961, putting him on notice of the 1963
rise. had been in effect for a iedr
8 If Mnncey's improvement is attributable to a higher rate introduced sometime in late
October or November this also has some bearing on Greenlee's asserted ability to do all
pocket setting without makeup pay, because she also received the higher rate.
e I have grave doubt that Greenlee was even hired to perform pocket setting work pri-
marily. Dyess testified that Landsman had her telephone Greenlee to get her to come to
work and I cannot believe that he asked Dyess to assist in her own elimination Dyess
and Muncey also testified credibly that Landsman told them that he would have Greenlee
do overflow pocket setting but keep her on other work generally.
NORTHSIDE SPORTSWEAR, INC. 1535
makeup pay before and after November 1963. Although Landsman told her that her
work was unsatisfactory he did not discharge her. Landsman was also hard pressed
to remember exactly who he had ever fired because of undue makeup pay although he
had a list at the hearing of a considerable number of persons he had fired for cause
since he started business. Moreover, as I have indicated earlier, Landsman in his
testimony engaged in obfuscation rather than clarification, particularly with respect
to this issue. His testimony about his conversations with his accountant was vague,
and his explanation of why he discharged Muncey and Dyess at a time when their
makeup pay was decreasing, -into which he injected the concept of styles and mate-
rials was, in my opinion , an evasion.
Accordingly, I find, and conclude, from the foregoing and on the entire record as
a whole, that Respondent discriminatorily discharged Addie Dyess and Josephine
Muncey in violation of Section 8(a)(1) and (3) of the Act.
3. The discharge of Virginia Davis
General Counsel contends that Respondent discharged Davis because Landsman
believed her to be engaged in union activities. Respondent's position is that it com-
bined Davis' operation with that of other employees to cut expenses because of lack
of work. As a consequence, Davis was eliminated.
Davis was hired by Landsman in April 1963 to clean garments. In August 1963,
Landsman assigned her to button marking, which she did until her discharge. Davis.
testified about a conversation with Landsman on November 20, 1963, the day she
was let go. She said Landsman told her "because of some things that were going
on in his shop which he did not approve of, that he would have to let (her) go until
they were straightened out." Davis asked Landsman what she had done, protesting
that she had done nothing. Landsman, according to her, replied that he knew she
had done nothing but that she was not the only one "... going, there are going to
be others going too "
Davis testified that she asked Landsman who would do the work she had been
doing and he told her that the buttonhole sewer would also do the marking. Davis
then asked Landsman for her old job cleaning garments and he refused it. She
testified that she "... asked him if it was because of union reasons that if he had
heard about that and he said, yes, he knew all about the union, that he had just fired
Jo Muncey, and that he saw her give me a union card." She added that Landsman
also said that there "wouldn't be any union there, that he would fire everybody
working and rehire new ones or better still, he would close the shop and go to_work
for someone else."
Davis, when asked if Landsman told her who he would fire, said, "He told me
that he was going to have to let the colored girls, the pressers go, that he knew there
had been a union meeting on the Monday before, and he knew who attended that
meeting and (who) Jo Muncey had taken in her car . . . and that the colored girls
who attended the meeting went down with the colored girl, Naomi, but that Naomi
didn't attend the meeting and that there would be a meeting also next Monday."
Davis asked Landsman to mail her her paycheck which was due on Friday. She
said Landsman told her to call him before Friday "because he may want me to come
back to work for him." Davis went to see Landsman on the following Monday,
November 25, and talked with him in his office. She asked him for her old job
(cleaning ) back and Landsman refused. She testified that Landsman said that "he
knew more now than he did before ... he knew there had been more to sign cards
for the union then he did when he talked to me before." On direct examination
the witness said she recalled nothing further that Landsman said.
Davis did not attend the union meeting on November 18, 1963, and did not sign
a union card until after she was discharged. Davis flatly stated, "I haven't been
engaged in union activity, period, at any time." Although Davis testified that
Landsman told her that he had seen Muncey give her a union card, she also testified
that Muncey did not actually give her one. There is nothing in Muncey's testimony
about Davis, although Muncey did testify that she asked certain employees to join
the Union. The only other employee active in the plant for the Union so far as
this record shows was Dyess. She testified that she distributed three union cards to
named employees after the meeting and asked them why they did not attend the
meeting, but there is nothing in her testimony about Davis. I find that no one passed
Davis a card before her discharge. But Davis testified that Landsman told her that
he saw Muncey give her a card. Landsman, therefore, according to General Coun-
sel's theory of the case, based his belief in Davis' union adherence on an event which
never happened., Landsman denied the remarks attributed to him by Davis. He
said he never spoke to her about the Union or union activities. Landsman testified
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he let Davis go because of lack of work. He told her that the button sewers
would do button marketing as they had in the past because there was not enough
work and he had to cut expenses. According to him, Davis has not been replaced
and her work is being done alternately by the girls who sew buttons. He named
these employees and said they worked for Respondent while Davis was employed.
Davis had also testified that when she entered the plant on Monday, November 25,
to get her check and see Landsman she observed that the buttonhole and button
sewing machines were both in operation and being operated by different girls. In
addition, however, there was a newly hired employee doing her old work marking
buttons. Landsman denied it.
. The Davis case is strictly one of credibility. If Landsman told her that he was
discharging her because he saw someone hand her a union card and he then re-
placed her with a new. employee, the case is simple. I do not accept Davis' story,
however, and I credit Landsman in this case.
To repeat, no one gave Davis a card in the plant but she said Landsman said he
saw Muncey pass one. Davis had an opportunity to straighten Landsman out when
he accused her, but she did not. I do not think she would remain silent when she
was losing her job on the basis of something she said did not happen. My belief in
this regard is buttressed by the fact that Davis wrote Mrs. Landsman, who was ill
at the time, and protested her discharge to her. Davis is not the silent type. I also
think it unlikely that Landsman would unburden himself in as much detail to Davis
as she testified. Muncey, who Davis said Landsman accused of passing the union
card to her, was fired the same morning, yet Landsman cautiously said nothing spe-
cifically to her about her activities. If Landsman talked so indiscreetly to Davis
this would be more consistent with a belief on his part that she was unsympathetic
rather than sympathetic toward the Union. I have found earlier that Landsman knew
certain employees were active in the Union. Davis was not active and there was
no reasonable basis for Landsman to believe that she was involved in any way. I
find that Landsman did not tell Davis that he had seen Muncey give her a union
card, as Davis testified.10
My reading of the witness' testimony and recall of her demeanor also caused me
to believe that her testimony was otherwise embellished and exaggerated . The very
detail in the original account of Landsman's description of those who went to the
meeting, who drove them, who drove a car but did not go in, and when the next
meeting would be held has the feel of embroidery. In addition, on redirect exami-
nation she added that on her visit to the plant on the Monday after her discharge
Landsman "called out the names of those he thought had . . ." signed union cards.
She said she asked for her old job back at this time, did not get it, and left. On
recross-examination Davis listed the first names of persons Landsman had named as
card signers. Significantly, Landsman did not name Dyess, Muncey, or even Davis.
Significantly, Davis did not think of this important evidence when she first testified.
Significantly, when Landsman mentioned names, Davis never protested that she was
not among them. Although she was there to ask for her old job, Davis again missed
an opportunity to tell Landsman that be was mistaken in his accusation.
Davis' testimony about the new employee who she claimed she saw doing her
work after she was laid off is of the same character as the testimony about the names
Landsman "called out." I do not believe it happened. Davis was a good 40 feet
away from the table at which she said she saw the new employee marking buttons,
and it is questionable whether she could see all she said she did. The employee was
known to her only by her given name "Jeanine," but she was an "American .. .
brunette and very attractive." No one else ever identified " Jeanine," and Landsman
denied she existed. Davis saw "Jeanine" doing her work, according to her own
detailed testimony, before she entered Landsman's office to talk with him about re-
employment. Although she said she asked for her old job back, she never men-
tioned or protested to Landsman the fact that the newly hired "Jeanine" was doing
her work. This is an omission like her failure to tell Landsman that he was wrong
in think that Muncey had given her a union card. Finally, Davis wrote a letter to
Mrs. Landsman after her discharge and complained about its unfairness . Although
10 It is theoretically possible that Landsman fired Davis not because he thought she was
active but as a cover for the Dyess and Muncey discharges. Davis said she told Landsman
that she had done nothing and that he said, "I know." Although this would make
Landsman 's asserted candor with Davis more believable, and also might explain Davis'
testimony that Landsman told her to telephone him before Friday because he might want
her back to work-which remark is incongruous if made to a person who had just been
discharged for suspected union activity-it is, however , not General Counsel 's theory of
the case.
NORTHSIDE SPORTSWEAR, INC. 1537
she told Mrs. Landsman that she could understand Landsman combining the button
sewing and button marking operations and said that he should have, nevertheless,-
given Davis her old job of cleaning garments back and discharged another employee
to do it, she said nothing about Landsman's mistaken belief that she had signed a
card, nothing about union activities at all, and nothing about the beauteous "Jeanine."
I reject Davis' testimony and conclude that General Counsel has not established.
by a fair preponderance of the evidence that Respondent violated Section 8(a)(3)
and (1) of the Act in her discharge.
4. The discharge of Annabehtz Ferriol
As in Davis' case, General Counsel contends that Ferriol was discharged, not
because she had engaged in union activities, but because Respondent thought she-
had. Respondent's position is that Ferriol was given temporary employment and.
laid off when the work ran out.
Ferriol had previously been employed at Robinson-Weinberg under Landsman
and testified that Landsman saw her on a picket line while employed there. When.
she was hired by Respondent on November 11, 1963, she talked with Landsman.
Ferriol, whose use of English is limited and who converses normally in Spanish,
testified that her talk with Landsman was in English. Ferriol was first examined
by General Counsel in English. Asked what Landsman said to her when he inter-
viewed her, she replied, in English, that he said, "No, Anna,.working, no union."
The witness then appeared-to have difficulty in continuing the examination in Eng-
lish and the Trial Examiner permitted the interpreter to ask General Counsel' s ques-
tions in Spanish but to ask the witness to reply in English. Again asked, in Spanish,
what Landsman had to say on the day she was hired, she replied, in English, "Lands-
man come to me, say Anna you are working now, I said yes, Mr. Landsman, and.
he say, no union, and then that's all." The witness added, in Spanish, that she told
Landsman ". . . it was all right, that all I needed was work." Under cross-exami-
nation the witness stated that Landsman's "exact" words to her when he interviewed'
her were, "That, if I wanted to work, I couldn't be in the Union.
Landsman discharged Ferriol on November 22, 1963. Ferriol testified that, on
the previous day, Addie Dyess tried to talk with,her but Ferriol did not ". . . under--
stand what she was telling ..." her. She said that Dyess tried to give her a card,.
but she refused it. The card was like the Union's application card in evidence. She
said Landsman was standing about 10 feet away and she ". . . supposed he was.
looking on ...." All that Landsman said to her when he let her go was that he had
no more work for her, but would call her.
Landsman testified that Ferriol"just came in for a job" and because he needed
someone on a temporary basis at the time, he hired her. - He put her at cleaning-
garments , the work that Davis thought she should have been assigned to when her-
job was combined with button sewing, and told her that he did not know how much
work he would have in the future. When he laid her off on November 22 he told.
her he had no work for her. He denied that he ever discussed the Union with
Ferriol and testified that he had never seen any employee try to hand another em-
ployee a card like the union card in evidence.
I find that General Counsel has not established by a fair preponderance of the
evidence that Respondent discharged Ferriol because Landsman believed that Fer-
riol had joined or assisted the Union, as alleged in the complaint. In the first place,
I was not impressed by Ferriol's testimony about her interview with Landsman at the
time she was hired. In my opinion, based on my observation of the witness, Ferriol
is an alert and intelligent person who actually understood more of her examination
than she appeared to understand. Her testimony, which ranged from Landsman's
simple "Anna, no union" to an assertion that he said that if she wanted to work, she
could not be in the Union, was exaggerated, in my view, and I do not credit it.
But even if Landsman had told Ferriol that there was no union ( meaning no union-
or union activities permitted rather than no union in existence at Respondent, which,
is the most favorable interpretation of Ferriol's original testimony ), there is a miss-
ing link in the theory of the case. In the first place,, Ferriol's prior union activities
at Robinson-Weinberg are unimportant. Landsman hired others who worked at
Robinson-Weinberg and were in the Union, and Ferriol certainly were not the only-
picket at that company.11 In any event, active or not, Ferriol, by her own testimony,
indicated that "no union" was all right with her because she needed the work.
"Her pretrial affidavit in evidence indicates that the picketing was in 1954 and many-
employees were on the picket line.
760-577-65-vol . 148-98
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ferriol did not attend the union meeting and did not sign a card and, therefore,
there was no reason for Landsman to believe that Ferriol had become active except
for the testimony about Dyess offering her a card . I do not credit this testimony.
Although a witness is not necessarily discredited because an asserted fact is omitted
from a previous affidavit , I think it of some significance that there is nothing ,in
Ferriol 's statement about Dyess and a union card, despite the fact it contains a
description of Landsman watching Ferriol showing some photographs of herself to
other employees on November 20. The omission of the alleged Dyess contact with
a card and the inclusion of the photograph passing incident , also purportedly ob-
served by Landsman is too much of a coincidence for me to swallow. I think the
testimony got better as the hearing got closer . I credit Landsman 's denial that he
did not see anyone attempt to pass Ferriol a union card.
I conclude that Respondent did not violate Section 8(a)(1) and ( 3) of the Act
when it laid Ferriol off.
B. Alleged independent acts of interference, restraint, and coercion
in violation of Section 8(a)(1) of the Act
Earlier, in my treatment of the discharges of Dyess and Muncey, consideration
was given to evidence which I found showed that Landsman knew of and opposed
his employees ' union activity. Such evidence is found in the testimony of Capellini,
Avant, and Tolliver, as well as the discriminatee , Dyess. On the basis of such testi-
mony, as set forth in more detail above, I find as follows:
I find as alleged , and as testified to by Capellini, that Landsman asked him
whether he liked the Union and whether he had been given a union card. Lands-
man's interrogation served no legitimate purpose; indeed, he denied it , and I find it
coercive in the circumstances , especially in the context of discrimination against
Dyess and Muncey. By such interrogation Respondent violated Section 8(a)(1) of
the Act.
I also find that Respondent created among its employees the impression of sur-
veillance of its employees ' union activities as alleged in the complaint . Evidence of
such is contained in Avant 's testimony about her conversation in Landsman 's office
with Mrs. Landsman present in which it was made clear to her that Respondent knew
who had attended the union meeting. Landsman also told Dyess that she and
Muncey had devoted considerable time to union activities and told Tolliver that he
knew what was going on. By creating this impression of surveillance Respondent
violated Section 8(a)(1) of the Act.
Respondent also threatened employees with reprisals because of their union ac-
tivities . Evidence of this is found in the credited testimony of Tolliver and Dyess.
Landsman told Tolliver that he would close down rather than have a union , and told
Dyess that those who did not make their quotas and had signed union cards would
be dismissed . By such conduct Respondent engaged in additional violations of
Section 8 (a) (1) of the Act.
While there may very well have been some mention of the word "union" when
Ferriol was employed in November 1963, I have found that Landsman did not go
as far as to say that her employment was conditioned on her abstaining from union
activities and membership. I find , therefore , that General Counsel has not estab-
lished this allegation of the compalint by a preponderance of the evidence.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section III, above , occurring in con-
nection with the operations of the Company 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 com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor , practices in
violation of Section 8(a) (1) and (3) of the Act, it will be recommended that the Re-
spondent cease and desist therefrom and take certain affirmative action designed to.
effectuate the policies of the Act. It will be recommended that the Respondent offer
employees Addie Dyess and Josephine Muncey immediate and full reinstatement to
their former- or substantially equivalent positions, without prejudice to seniority and
other rights and privileges , and make them whole for any loss of earnings they may
have suffered by reason of the discrimination against them by payment .to them of a
NORTHSIDE SPORTSWEAR, INC. 1539
sum of money equal to that which they would have earned as wages. from the date
of the discrimination against them to the date of offer of reinstatement less interim
earnings, and in a manner consistent with the Board policy set out in F. W. Woolworth
Company, 90 NLRB 289. Interest on backpay shall be computed in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended that the Respondent preserve and, upon request,
make available to the Board payroll and other records to facilitate the computation of
backpay.
It will also be recommended, in view of the nature of the unfair labor practices
the Respondent has engaged in, that it cease and desist from infringing in any man-
ner upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, make the following:
CONCLUSIONS OF LAW
1. The Respondent Company is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Amalgamated Clothing Workers of America, Local No. 694, AFL-CIO, is a
labor organization as defined in Section 2(5) of the Act.
3. By discharging Addie Dyess and Josephine Muncey, the Respondent engaged
in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act.
4. By engaging in the conduct found to be violations set forth in section III, B,
above, Respondent has engaged in and is 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 within the mean-
ing of Section 2 (6) and (7) of the Act.
6. Respondent did not discriminatorily discharge Virginia Davis and Annabelitz
Ferriol in violation of Section 8(a) (3), as alleged. ,
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Northside Sports-
wear, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Amalgamated Clothing Workers of America,
Local No. 694, AFL-CIO, or in any other labor organization, by discharging or
refusing to reinstate employees, or in any other manner.discriminating against them
in regard to their hire or tenure of employment or any term or condition of employ-
ment.
(b) Interrogating employees concerning activities on behalf of the above-named
or any other labor organization, in a manner constituting interference, restraint, or
coercion violative of Section 8 (a)( I) of the Act.
(c) Threatening to close its plant if employees join or assist Amalgamated Cloth-
ing Workers of America, Local No. 694, AFL-CIO, or attempt to designate said
Union, or any other labor organization, as their collective-bargaining agent.
(d) Threatening to discharge any employees that join or assist Amalgamated
Clothing Workers of America, Local No. 694, AFL-CIO, or any other labor organi-
zation.
(e) Creating among its employees an impression of surveillance of their union
and other concerted activities engaged in for mutual aid-and protection.
(f) In any other manner interfering with, restraining, or coercing Sits employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist the above-named Union or any other organization, to bargain collec-
tively through representatives of their own choosing, to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action which will effectuate the policies of the
Act.
(a) Offer-Addie Dyess and Josephine Muncey immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their sen-
iority or other rights and privileges previously enjoyed,. and-make them whole for.
loss of pay in the manner set forth in the section of this Decision entitled "The
Remedy." r
(b) Preserve and, upon request, make available to the Board' or its agents, for
examination and* copying, all payroll-records, social security payment' records, time-'
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards, personnel records and reports, and all other records needed to analyze and
compute the amount of backpay and the right to reinstatement under the terms of this.
Recommended Order.
(c) Post at its plant at Miami, Florida , copies of the attached notice marked
"Appendix." 12 Copies of the notice, to be furnished by the. Regional Director for
Region 12 shall, after being signed by Respondent's representative, be posted by
Respondent immediately upon receipt thereof, and be maintained for a period of 60,
consecutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or covered by any other
material.
(d) Notify said Regional Director, in writing, within 20 days from the date of
receipt of this Decision, what steps it has taken to comply herewith.13
"In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
za In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, In writing, within 10 days
from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE.WILL NOT discourage membership in Amalgamated Clothing Workers of
America, Local No. 694, AFL-CIO, or any other labor organization, by dis-
charging or refusing to reinstate any of our employees, or in any manner dis-
criminating in regard to their hire or tenure of employment, or any term or
condition of employment.
WE WILL NOT interrogate employees concerning activities on behalf of the
above-named or any other labor organization, in a manner constituting inter-
ference, restraint, or coercion violative of Section 8(a)(1) of the Act.
WE WILL NOT threaten to close our plant if employees join or assist Amal-'
gamated Clothing Workers of America, Local No. 694, AFL-CIO, or attempt
'to designate said Union, or any other labor organization , as their collective-
bargaining agent.
WE WILL NOT threaten to discharge any employees that join or assist Amal-
gamated Clothing Workers of America, Local No. 694, AFL-CIO, or any
other labor organization.
WE WILL NOT create among our employees an impression of `surveillance of
their union and other concerted activities engaged in for mutual aid and
protection.
WE WILL NOT in any other manner interfere with, restrain , or coerce em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to engage in other concerted activities for purposes of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all such
activities.
WE WILL offer Addie Dyess and Josephine Muncey immediate and full re-
instatement to their former or substantially equivalent positions and to make
them whole for loss of pay suffered as a result of the discrimination against
them.
NORTHSIDE SPORTSWEAR, INC.,
Employer.
Dated---------- --------- By---------------------------------------(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
MURRAY-OHIO MFG. CO. 1541
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Ross
Building, 112 East Cass Street, Tampa, Florida, Telephone No. 223-4623.
Murray-Ohio Mfg. Co . and International Union , United Auto-
mobile, Aerospace & Agricultural Implement Workers of
America, UAW-AFL-CIO. Case No. J6-CA-1650. October 5,
1964
DECISION AND ORDER
On June 12, 1964, Trial Examiner Alba B. Martin issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. Thereafter,
the Respondent filed exceptions to the Decision and a supporting
brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was omitted. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
modifications.
Although we agree with the Trial Examiner's ultimate disposition
of the issues herein in adopting his conclusion that Tarkington was
discharged in violation of Section 8(a) (3) and (1) of the Act, we
rely solely upon his finding that Respondent utilized Tarkington's
:activity in attempting to compile or secure a list of names of em-
ployees as a pretext to cloak its actual motive in discharging him
because of his activity on behalf of the Union. Accordingly, we find
it unnecessary to pass upon his finding that the lists of employees'
names were not of a confidential character or upon his further finding
that Tarkington did not ask or necessarily contemplate that the lists
be compiled from company records.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts, as its
Order, the Order recommended by the Trial Examiner, and orders
148 NLRB No. 153.