Phil Modes

National Labor Relations Board - Board Decisions

Mar 2, 1962

136 N.L.R.B. 62 (N.L.R.B. 1962)

62 DECISIONS OF NATIONAL LABOR RELATIONS BOA1;D
Lloyd Walters and Theresa Walters, a Partnership d/b/a Phil
Modes and International Ladies' Garment Workers Union,
AFL-CIO. Case No. 16-CA-1511. March .2, 1962
DECISION AND ORDER
On December 19, 1961, Trial Examiner Thomas N. Kessel issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and is engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take 'certain affirmative action, as set forth in the Intermediate
Report attached hereto. He also found that the Respondent had not
engaged in certain other alleged unfair labor practices and recom-
mended that the complaint be dismissed with respect to such allega-
tions. Thereafter, the Charging Party filed exceptions to the Inter-
mediate Report.
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 Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions, and the entire record in this pro-
ceeding, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
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, Lloyd Walters
and Theresa Walters, a partnership d/b/a Phil Modes, Athens, Texas,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Ladies' Garment
Workers Union, AFL-CIO, or any other labor organization of its
employees, by discriminating in regard to hire or tenure of employ-
ment of its employees.
(b) Coercively interrogating employees concerning their union
activities, sympathies, and the union activities of other employees, or
threatening to discharge or layoff employees for engaging in union
'In the absence of exceptions , Member Rodgers would adopt pro forma the Trial
Examiner 's finding that the Respondent discriminatorily discharged employees Adams,
Jackson, Lambright , Rhodes, and Manoy on July 7, 1961 , and engaged in other conduct
violative of Section 8(a) (1) of the Act, as alleged in the complaint.
136 NLRB No. 7.
PHIL MODES 63
activities, or threatening to close and move its plant to evade the
above-named labor organization, or unlawfully declaring it will not
tolerate the unionization of its plant, or threatening employees that
it will prevent them from holding union meetings by using influence
to deprive them of their public meeting place, or requesting employees
to obtain and to supply it with information concerning the union
activities of employees, or ordering employees to cease all union ac-
tivities at any time or place in its plant.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist International Ladies' Garment Workers Union,
AFL-CIO, or any other organization, to bargain collectively with
representatives of their own choosing, and to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual aid
and protection, or to refrain from any and all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Jack Adams immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make whole employees
Jack Adams, Katherine Jackson, Nena Rhodes, Dorothy Manoy, and
Juanita Lambright in the manner set forth in that section of the
Intermediate Report entitled "The Remedy" for any loss of pay
each may have suffered by reason of the Respondent's discrimination
against them.
(b) Post at its plant in Athens, Texas, copies of the notice attached
hereto marked "Appendix." 2 Copies of said notice, to be furnished
by the Regional Director for the Sixteenth Region, shall, after being
duly signed by the Respondent's representative, be posted by the Re-
spondent immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to its employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
I In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the allegations of the complaint with
respect to discrimination against James Chitty, Paul Turcotte, Doro-
thy Schuder, and Jim Morgan be, and they hereby are, dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of their rights to engage in or to refrain from
engaging in union activities by interrogating them concerning
their union activities, sympathies, and the union activities of other
employees, by threatening to discharge or layoff employees for
engaging in union activities, by threatening to close or move our
plant to evade International Ladies' Garment Workers Union,
AFL-CIO, or any other labor organization of our employees, by
unlawfully declaring that we will not tolerate the unionization
of our plant, by threatening that we will prevent our employees
from holding union meetings by using our influence to deprive
them of their public meeting place, by requesting employees
to obtain and supply us with information concerning the union
activities of other employees, or by ordering employees to cease
all their union activities at any time or place in our plant.
WE WILL NOT discourage membership in International Ladies'
Garment Workers Union, AFL-CIO, or any other labor organi-
zation of our employees, by discriminating in any manner with
regard to hire, tenure, or any term or condition of employment.
WE WILL offer immediate and full reinstatement to Jack Adams
to his former or substantially equivalent position, without preju-
dice to his seniority or other rights and privileges.
WE WILL make whole Jack Adams, Katherine Jackson, Nena
Rhodes, Dorothy Manoy, and Juanita Lambright for any loss
of earnings suffered by them as a result of the discrimination
against them.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist the
above-named or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any and all such activities.
PHIL MODES 65
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization.
LLOYD WALTERS AND THERESA WALTERS
A PARTNERSHIP D/B/A PHIL MODES,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office (300 West Vickery, Fort Worth 4, Texas; telephone number
EDison 5-5341, extension 284) if they have any questions concerning
this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by International Ladies' Garment Workers Union , AFL-CIO,
herein called the Union , the General Counsel of the National Labor Relations Board,
herein called the Board , by the Regional Director for the Sixteenth Region , issued his
complaint dated August 17, 1961, against Lloyd Walters and Theresa Walters, a part-
nership d/b/a Phil Modes, herein called the Respondent , alleging that the Respondent
had engaged in and was 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, 61 Stat. 136, herein called the Act. The Respondent 's answer to
the complaint denies the allegations of statutory violations set forth therein . Copies
of the complaint , the charge , and a notice of hearing were duly served upon the
parties. Pursuant to notice , a hearing was held in Athens , Texas, on October 3 and 4,
1961 , before the Trial Examiner duly designated to conduct the hearing . All parties
were represented by counsel . Full opportunity to be heard, to examine and cross-
examine witnesses , and to introduce evidence was afforded all parties. After the close
of the hearing the General Counsel and the Respondent filed briefs which have been
carefully considered.
Upon the entire record in the case , and from my observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. PERTINENT COMMERCE FACTS
The Respondent is a partnership engaged in Athens, Texas, in the manufacture,
sale, and distribution of ladies' coats . The General Counsel and the Respondent
stipulated that the Respondent began its operations in Athens, on or about Febru-
ary 1, 1961, and that during the first 5 months of its operations its sales to points
outside the State of Texas were valued in excess of $25,000, and its purchase of goods
and materials from points outside Texas during the same period were valued in excess
of $25,000. By projecting the Respondent 's out-of-State sales and shipments for
the first 12 months of its operations it is estimated that each would exceed $50,000 in
value. The Respondent further stipulated with the General Counsel that it is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act. I find that the
Respondent is engaged in commerce within the meaning of the Act and that exercise
of the Board 's jurisdiction over its operations will effectuate the purposes of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies ' Garment Workers Union, AFL-CIO, is a labor organization
admitting to membership employees of the Respondent.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The General Counsel contends that on various dates between June 13 and July 7,
1961, the Respondent discharged nine employees in violation of Section 8(a) (3) of
the Act, because of their union activities, and that the Respondent violated Section
8(a)(1) of the Act by various acts of interference, restraint, and coercion of em-
ployees in the course of their union activities. The Respondent admits that it dis-
charged all but one of the foregoing nine employees, but maintains it did so lawfully
for cause. The Respondent demes that it committed the alleged Section 8(a)(1)
conduct, or that such conduct in which it may have engaged should be held violative
of the Act.
The Respondent started its garment manufacturing operations at Athens in Janu-
ary 1961 in a temporary building with a force of essentially untrained employees.
In April the Respondent moved to its present permanent quarters. The Respondent
went into actual production of garments from the inception despite the handicaps of
inadequate building and inexperienced personnel. Harold Berlin, the Respondent's
production manager was completely in charge of the manufacturing operations He
also hired, discharged, trained, and fixed the pay of the production employees. All the
unlawful conduct attributed to the Respondent was allegedly committed directly by
Berlin. Concededly, Berlin is the Respondent's agent for whose conduct the Re-
spondent is responsible.
Union activities among the Respondent's employees started about June 10 or 12,
1961, at a meeting of three employees with the Union's representative at the home of
employee Katherine Jackson. Thereafter a campaign ensued among the employees
to secure their adherence to the Union by solicitation of their signatures on authoriza-
tion cards. On about June 15 and 29 there were union meetings at the county court-
house in Athens attended by the employees On July 3 the Union filed a petition with
the Board's Regional Office in Fort Worth seeking an election to determine its
status as the exclusive bargaining representative of the Respondent's employees. On
July 6 the Respondent received a copy of the petition mailed to it by the Regional
Office. On July 19 representatives of the Union and the Respondent participated in a
hearing conducted by the Regional Office which on August 3 issued a decision and
direction of election in Case No. 16-RC-2949. In the ensuing election, held on
August 23, 37 of the 50 eligible voters rejected the Union as their representative.
Three voters favored the Union and the ballots of seven voters were challenged. On
August 31 a certification of results of election was issued certifying the Union had
lost the election.
A. Interference, restraint, and coercion
Employee Nena M. Rhodes testified that on an unspecified date in the latter part of
June 1961 after a union meeting she heard Berlin state to an unidentified person in
the plant while her back was turned that "he would let everyone off that joined the
Union." She recalled that on a later occasion when employee Etta Mae Bradley
asked Berlin to instruct her in the performance of her sewing operation he said to her
in effect "you mean to tell me you are in the Union," or "you joined the Union, and
you don't know how to do this?"
Charlie W. Pagitt had voluntarily left the Respondent's employ on July 15, 1961.
He testified that in the morning following the first union meeting in June, Berlin
summoned him to his office. Berlin informed him he had learned of the union meeting
of the preceding night. After exacting Pagitt's promise to speak truthfully he asked
him to reveal who attended the meeting, the number of employees present, and
"everything " Paeitt answered these questions and identified most who attended.
Berlin asked whether Paul Turcotte had been the "ringleader," and Pagitt replied
that he did not think so. Paeitt related that after the next union meeting Berlin
again requested that he keep him informed about when future meetings would be
held and what transpired at such meetings. Once more Berlin expressed belief that
Turcotte was the ringleader and added that if he were "out-the-door he went; that he
was through with him " Berlin declared to Pagitt that Turcotte had threatened to
damage the automobiles of employees who refused to ioin the Union Paeitt re-
iterated his belief that Turcotte was not the union ringleader, but that Walter Hart, an
employee no longer working for the Respondent, had started the union activities.
Berlin also said, Pagitt recalled. that "he didn't want to Let connected with the
Union; that his partner got treated dirty down in California." He remarked that
the Respondent had not paid for its building and asserted that if the employees were
to be unionized he would move elsewhere He stated also that he would see that
there would he no more union meetings at the courthouse Pieitt testified concerning
another conversation with Rerl;n in which the latter expressed belief that emninvee
Marie Mullen was one of the Union's principal leaders. Pagitt disagreeed. Berlin
PHIL MODES 67
renewed his request to Pagitt to keep him informed about the union meetings and to
let him know which employees were joining the Union.
Former employee Jack Adams testified that on July 5 Berlin asked him whether he
wanted to be a "union man," whether he had in the past belonged to a union, whether
the plant where he had formerly worked had been unionized, and if so for how long,
and how long he had worked there. Adams answered these questions and admitted
his desire, to be a union member and that had been a member of the Union at the
plant where he had formerly worked for about 10 years. Thereupon, according to
Adams, Berlin said, "What I can't understand about these fellows, that he came into
this town and set up a business in order to give us work to do and then in 6 weeks here
we try to bring a union in." Adams told Berlin he had not had anything to do with
bringing the Union into the plant. Berlin replied, "Well, you might just as well go
back to where you came from, because they wasn't going to have any." Berlin went
on to tell Adams he was "fired" and gave him the option of leaving that evening or
working till the end of the week. Adams did not know whether to believe he had
then been discharged or not. In any event he worked the next 2 days until he was
discharged on July 7.
Dorothy Manoy had been discharged by the Respondent on July 7 and was recalled
to work within a few days. The Respondent maintains that her discharge had been
an unintentional error and that she was recalled as soon as the mistake was discovered.
She testified that when she returned to work on July 14 Berlin asked her why she had
signed a union card and she replied it was because others had done so. He then
asked whether she would jump from a roof merely because someone asked her to
do so. He instructed her to tell him the next time someone asked her to sign a card,
and informed her she had been sent home on July 7 not because of her job per-
formance but because he was "vexed" over her joining a union.
Dorothy Schuder' s termination of employment on June 30 had produced an
argument with Berlin which provoked her remark to him that if the plant went union
he would have to change his tune and treat employees differently. Berlin, she
claimed, retorted that "so long as he ran the plant and the plant was his there would
be no union shop there." He said also that "when he left California he left the
union behind. The people in Texas had more sense than to let union or organized
labor run their jobs for them." Schuder also testified that when she was first hired
by Berlin on June 26 he asked whether there had been a union shop at the garment
plant where she had formerly worked.
Employee Juanita Lambright testified that in the morning of July 7, the day when
she was discharged, Berlin asked her whether she had signed a union card. She
admitted she had. The same day she heard Berlin remark to an employee "you
belong to a union and don't even know how to do this."
Employee Marie Mullen related that Berlin asked her on July 1 whether she had
attended the union meeting of June 29. She told him she had, whereupon he said
he did not see why some of the girls were not loyal enough to come to him and tell
him about it. According to Mullen, on July 14 or 15 while she was lunching with
other employees in the shop Berlin ordered her to "quit molesting the girls during
working hours and not to organize or `smorganize' on his property at any time; that
[she] could talk to them in the street or in their homes, but not on his property or
in his building." He also reminded her, she said, that he had let her stay at the
shop at times when he had no work for her and that she had "turned around and
stabbed him in the back with a knife." Mullen further testified concerning a July 21
meeting of the employees in the plant when Berlin said to them, among other
things, that "he was not going to have a union shop; that at no time was he going
to let the Union come in there; that the Union wasn't any good and he wasn't going
to have it." He said also, she claimed, that he would not work in a "union shop"
and would not stay if the Union comes in.
Berlin denied that he had remarked, as related by Rhodes, he would lay off
everyone who joined the Union. He maintained he was too intelligent to make this
statement.
In his version of discussions with Pagitt concerning the Union, Berlin insisted
that Pagitt came to him and volunteered information concerning the union meetings
including the identity of those who attended. He testified that he told Pagitt he did
not want the names of the employees, but that he did want from him information
as to the number present at the meetings. Pagitt nevertheless told him he would
come to his house the next night after the union meeting to give him the volun-
teered information including the names of employees who attended. Berlin con-
ceded that Pagitt came to his house as he had promised but claimed that he would
not accept information from him concerning the identity of employees at the meeting.
641795-63-vol 136-6
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to conversations about the Union with Adams, Berlin admitted asking him
whether he had joined the Union and being told that he had. At another place in
his testimony Berlin claimed that his only reference to the Union in conversation
with Adams was his advice to Adams to become a mechanic at his work before
,belonging to the Union.
There was no explicit denial by Berlin of Manoy's account of their conversation
concerning her union activities when he recalled her to work on July 14. He
,denied her assertion that he was "vexed because she had joined the Union, but,
admittedly, after learning from her she had joined the Union, had said, "I gave
you a good chance to deliver and give me a good reason why you joined the Union.
Were you mistreated?" He acknowledged she told him that she had joined the
Union because she had been asked to do so and that he thereupon said to her, "Well,
you didn't have any reasons, but, however, if anybody were to tell you to jump off
-the roof would you jump off?"
Concerning Schuder's 'testimony, Berlin denied only that he had inquired about
her umon membership when he employed her.
Regarding Lambright's account of his remarks to her about the Union, Berlin
-merely stated belief he had no discussion with her about the Union.
As to his statements to the employees at the July 21 meeting, as recounted by
Mullen, Berlin admitted he was unable to recall "word-for-word" what he said, but
-did remember telling them that he had treated them fairly and that they did not,
-therefore, need a union, and that he asked, in view of his fair treatment, why did they
"go to a union." At the same time he lectured them "above all first become
mechanics so you will know how to work before you join any union." He testified
he may have stated he would not have a "closed umon shop," and that he had told
the employees in this connection that no union organizer had ever been able to
convince him that it was beneficial for employees to belong to a union. Berlin would
not deny questioning Mullen whether she had attended a union meeting. He
Admitted telling her on July 14 or 15 that "When the girls come up they want to
make the job good, not to bother the girls-especially the new girls that first come
up, let them get warm in the place, let them get into the work and then if you want
to organize them, then organize them, not here." He claimed he was unable to
recall just how he spoke to Mullen but testified, "I told her if you want to organize
them, organize them outside or at home, but not here. I said, lunch hour or before,
because it does not separate when they start organizing in a place, it does not sep-
arate the lunch hour problem-two or three, they sit there and they talk about it
all day long until you stop it."
The General Counsel's witnesses who testified concerning Berlin's conduct im-
pressed me, far more than Berlin, as being sincerely concerned with relating factually
the events they were asked to recall. I had some reservations about Pagitt's testi-
mony during his appearance as a witness because at times his memory seemed
vague or uncertain. These misgivings, however, were overcome by Berlin's account
of his affairs with Pagitt which in large measure either supported Pagitt's version
by outright admission or failed to refute it. Where Berlin did plainly contradict
Pagitt, as for example in his insistence that he refused to accept Pagitt's volunteered
identification of union adherents, I reject his testimony as disingenuous. I do not
rely wholly upon demeanor factors as a basis for crediting the General Counsel's
witnesses, for it turns out that their testimony in whole or part is supported by
Berlin's admissions or is uncontradicted. Such few contradictions as do appear I
resolve in favor of the General Counsel's witnesses because, as I have indicated, I
regard their testimony as more credible than Berlin's. From the credited testimony
of these witnesses I find that Berlin engaged in the following conduct as alleged in
paragraph 11 of the complaint.'
(a) On July 5, 1961, Berlin interrogated employee Jack Adams concerning his
union activities and sympathies and at the same time expressed his opposition
and hostility to the Union.
(b) On July 7, Berlin interrogated employee Juanita Lambright concerning her
union activities.
(c) On July 14, Berlin interrogated employee Dorothy Manoy concerning her
union activities. In the course of this interrogation he revealed that she had been
terminated the week before because of her union activities and that he was disturbed
over them. While Berlin probably did not, as Manoy testified, articulate the word
"vexed" in describing his feelings about her conduct, I am convinced that he did
1 Subparagraphs in and n of paragraph 11 were dismissed on the General Counsel's own
motion.
PHIL MODES 69
impress her with his dissatisfaction and that Manoy properly characterized his
attitude as one of vexation.
(d) On or about July 14, Berlin ordered employee Marie Mullen to stop organiz-
ing for the Union on the Respondent's premises. This order was not just to refrain
from such activities during Mullen's working time or that of other employees, but
was a sweeping directive not to engage in union activities at anytime or place on
the Respondent's premises.
(e) On July 21, in a speech to employees in the plant, Berlin declared he would
not have a union shop, that he would not permit the Union's intrusion in the plant,
and that if it did intrude he would leave.
(f) On June 16, following the Union's first meeting on the preceding day, Berlin
interrogated employee Charlie W. Pagitt concerning the events of that meeting
and the identity of employees who attended, and further inquired whether employee
Paul Turcotte was the ringleader in the Union's activities.
(g) Following the Union 's meeting on June 29 , Berlin again discussed with Pagitt
the union activities of the employees and directed him to report concerning the
activities of employees at their meetings and the identity of employees who joined
the Union. Berlin also declared that he would prevent the employees from holding
future union meetings in the county courthouse.
(h) In a conversation with Pagitt, Berlin questioned him concerning the union
activities of employee Marie Mullen.
(i) Contrary to the allegation of subparagraph (i) of paragraph 11 of the
complaint, the record contains no evidence that Berlin had stated to Pagitt that he
had discharged employee Turcotte because he was the union ringleader. On the
other hand, the record does contain Pagitt's credited testimony that Berlin had
asked, as related in (f) above, whether Turcotte was the leader of the union activi-
ties. I find that Berlin made the same inquiry in the conversation with Pagitt
referred in (g) above, and that this time declared that if his belief as to Turcotte's
leadership were correct he would discharge him.
(j) In the latter part of June, Berlin stated within the hearing of employee Nena
M. Rhodes that he would lay off every employee who joined the Union.
(k) On or about June 30 Berlin told employee Dorothy Schuder that so long
as he ran the Respondent's plant no union shop would be there. I construe his
other remarks to Schuder about leaving the Union behind when he left California
and about the good sense of Texans in not accepting unionism as a declaration
that he had left California and come to Texas to avoid dealing with a union. The
reasonable implication of his words is that he would move wherever he could be
assured of freedom from relations with unions.
(1) Other than Berlin's inquiry of Schuder when she was first employed by him
on June 26 whether there had been a union shop at the plant where she had formerly
worked, I find no evidence to support the complaint allegation that Berlin interrogated
her concerning her union membership or activities.
In sum I find that Berlin interrogated employees concerning their union activities
and sympathies , interrogated employees concerning the activities of other employees
in behalf of the Union , threatened to discharge or lay off employees for union activi-
ties, threatened to close and move the Respondent's plant to evade the Union, de-
clared that the Respondent would not tolerate the unionization of its plant and that he
would prevent the employees from holding union meetings by using his influence to
deprive them of their public meeting place, requested employees to obtain and to
supply him information concerning the union activities of fellow employees, and
ordered employees to cease all union activities at any time or place in the Re-
spondent's plant . All this conduct , singly and collectively , constitutes interference
with , restraint , and coercion of employees in the exercise of the rights guaranteed by
Section 7 of the Act to engage in union activities . By such conduct the Respondent,
through its agent , Berlin, violated Section 8(a) (1) of the Act.
B. Discrimination
The Respondent discharged employee James Chitty on June 13 , 1961 , Paul Tur-
cotte on July 1, Dorothy Schuder on July 3 , and on July 7 discharged employees
Jack Adams , Jim Morgan , Katherine Jackson , Juanita Lambright , Nena Rhodes,
and Dorothy Manoy . These are the employees alleged to have been unlawfully
discharged for their union activities.
Chitty's employment by the Respondent began in the latter part of April 1961.
He was one of the three employees who met with the Union 's representative at the
home of employee Katherine Jackson in June . He was uncertain of the exact date
of the meeting but believes it was the day before his discharge . Jackson fixed the
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date of the meeting as June 10, or 12. Chitty, however, also testified that his activi-
ties in behalf of the Union began on or about June 8 or 9. He related that before his
discharge he solicited the signatures of employees on union authorization cards at
the plant.
Chitty's job was to cut cloth for the garments produced by the Respondent. He
admitted that he had been criticized for not stacking or cutting material straight.
He recalled that about 2 weeks before his discharge Berlin had told him that if he
did not cut straighter he would have to let him go, but that Berlin then told him
he had not meant this. On the day of his discharge he concededly had cut a quan-
tity of material too short and Berlin had pointed this out to him and told him he
was discharging him for this reason . Clyde E. Odom, the employee who was
working with Chitty at the cutting table, testified that none of the material with
which he and Chitty had worked at the time was ruined or discarded.
Berlin testified he discharged Chitty because he had spoiled a quantity of material
which he had improperly cut. He claimed that as a result there are still garments in
the plant which are in a mess and which he will be unable to finish. He got rid of
Chitty, he maintained, because he was anxious to break in an efficient cutter who
would relieve him of these duties.
Paul Turcotte was not a witness . The Respondent's contention that he was dis-
charged for his union activities is based on the evidence that Berlin had twice asked
Pagitt whether Turcotte was the ringleader of the Union and his threat to discharge
him if he were. There is no evidence to support a finding that Turcotte was a leader
in the union movement except Berlin 's comment to Pagitt, as related by the latter,
that Turcotte had threatened to damage the automobiles of employees who did not
join the Union. On the other hand, there are Pagitt' s assurances to Berlin that
Turcotte was not the ringleader. There is no other evidence as to Turcotte's union
activities. Berlin testified that he discharged Turcotte on July 1, because on that
day the latter had broken a pressing machine. Berlin described Turcotte as a
difficult person for other employees to work with, and related that the female em-
ployees had complained about him. Berlin himself had daily verbal bouts with
Turcotte about his work and assertedly would have discharged him before July 1
except for his inability to replace him. When, before that day, he obtained a satisfac-
tory presser and Turcotte broke the machine he felt the moment for his discharge
had come and then and there got rid of him.
Dorothy Schuder was hired on June 26, 1961, and assigned as an inexperienced
employee to work in the Respondent's plant at a machine whose functions are not
described in the record. She signed a union authorization card on June 27, and
attended the June 29 union meeting. She related that in the morning of Saturday,
June 30, Berlin checked her work at her machine and remarked that her production
was too slow. She promised to do better. At noon he checked her work again and
notified her he could no longer use her. Following an argument with Berlin over
her pay, he told her to return to work. On the following Monday Berlin instructed
her several times in the operation of her machine. About 4:15 p.m., he checked
her production and again told her she was too slow and he would have to let her go.
Schuder sought out Berlin and asked for another chance, arguing it was not fair to ex-
pect from her in such a short time what other employees had learned over a period of
weeks In the course of her remarks she declared that if the plant went union he
would have to change his attitude and give the employees greater opportunity. He
was, however, unwilling to give her another opportunity. Berlin testified that he
had observed during Schuder's first few days of employment that not only was her
production extremely bad but her work was so poorly done he had to turn it over to
his joiners to fix at added expense. He decided then to let her go, but she spoke
to him so volubly he decided to give her another chance. After she worked the
following Monday he saw that her production was so poor he could no longer keep
her, and so he discharged her
There is no evidence of any kind in the record concerning Jim Morgan's discharge
to show that it was unlawful.
Before proceeding with a recitation and analysis of the evidence pertaining to the
July 7 discharges of Adams, Jackson, Lambright, Rhodes, and Manoy, I believe it
would be appropriate to state my findings and conclusions concerning the above-
described discharges none of which in my opinion was unlawfully motivated. As
to Jim Morgan there can obviously be no finding of violation. Chitty's discharge
I find is attributable to the improper cutting of a quantity of material and Berlin's
loss of patience with him for this reason. I am mindful that Chitty had been one
of the Union's instigators, but do not believe this was a factor in his discharge be-
cause I am not convinced that when it occurred Berlin knew of this activity. Tur-
cotte's discharge was also provoked by Berlin's reaction to the damage he did to
PHIL MODES 71
the pressing machine. I have considered Berlin's belief expressed to Pagitt that
Turcotte was the union ringleader and his threat to discharge him if his belief were
substantiated. But Pagitt kept assuring Berlin that someone else was the ringleader
and as there is no evidence to show that Turcotte was in fact such leader I have no
reason for concluding that Berlin did not take Pagitt's word. Moreover, the record
shows that Turcotte was a disagreeable person, frequently at odds with Berlin, and
it is altogether probable that when he broke one of Berlin's prized machines he was
spontaneously discharged for that reason. Schuder's discharge also impresses me
as the result of Berlin's reaction to her quickly noted failure to be a productive
worker Had Berlin been motivated to discharge her on July 3 for her union ac-
tivities the likelihood is he would not have succumbed to her entreaties to give her
another chance after he had discharged her on June 30. Having noted Schuder's
militance and Berlin's excitability I am convinced that after his Saturday encounter
with her, he let her go on the next Monday when that day her performance was still
short of his requirements.
I proceed to the circumstances of the July 7 discharges of Adams, Jackson, Rhodes,
Manoy, and Lambright
Adams worked for the Respondent from the end of April or beginning of May
until his discharge on July 7. In addition to cleanup and mechanical duties he was
responsible for matching up the fronts, backs, sleeves, and linings which went to the
joiners to form the completed coats produced by the Respondent. These parts when
cut were identified by serial numbers which had to be accurately matched. Adams
conceded that he had several times mixed up coat linings and other cuttings and was
reprimanded therefor by Berlin who warned that he would be discharged for repeti-
tion of these mixups. He further conceded the possibility that he had mixed up the
linings in the week preceding his discharge. He maintained, however, that about
half of these mixups were not his fault and that he had tried to explain this to Berlin
when they had occurred, but that it was difficult on these occasions to reason with
him.
Adams had signed a card for the Union in June and had attended the June 15 and
29 meetings of the Union. He had also solicited the membership of Dorothy Manoy
for the Union. I have detailed above Berlin's interrogation of Adams on July 5
concerning his past union activities and present adherence to the Union. I credit
Adams' account of what transpired on that occasion. As stated, Berlin had then ex-
pressed his dismay over the efforts of the employees in behalf of the Union and had
concluded his remarks to Adams by telling him he was "fired," leaving him the op-
tion of ending his employment then or working until the end of the week. Not know-
ing whether to take Berlin seriously Adams had worked the next 2 days. At the
close of the day on July 7 Berlin called Adams to his office and, according to Adams,
told him that although he gave "a good day's work" he was discharging him for his
inability to handle his job. Adams asked whether his discharge was because of the
Union and was told it was not. Berlin then stated he knew the identity of certain
employees who had signed cards for the Union and that he was going to let some go
that same evening and others on the next Friday.
Concerning Adams' discharge Berlin explained the importance of properly match-
ing the cut pieces which formed the coats and indicated that as a consequence of the
mismatching of these pieces by Adams he had required his joiners to spend time
checking serial numbers at added expense. He maintained that he discharged him
for mixing up the pieces and because of his arrogance. Adams, he claims, would
"holler at me. He would always be right, and I am wrong." Berlin, as I have already
found, had interrogated Adams about his union membership. As to the other things
which Adams testified Berlin had said to him about the Union on July 5 and 7, there
is no explicit denial from Berlin beyond his claim that he referred to the Union in
conversation with Adams only when he told him to become a mechanic at his work
before belonging to the Union. I credit Adams' testimony of what was said at the
time of his discharge.
Katherine Jackson started to work for the Respondent on April 26, 1961.
Although hired essentially to work in Berlin's office and to do buttonholing in her
spare time, she was given no office work. In addition to work on buttonholes she
cleaned coats and sewed buttons and snaps. When she was employed she informed
Berlin she was physically unable to operate a power-sewing machine and was there-
fore assigned hand-sewing duties. Although paid a guaranteed minimum of $1 for
each hour worked, Jackson, like most other of the Respondent's employees, was paid
a specific piece rate for each unit of work performed. It was therefore possible for
her, if she were sufficiently productive, to earn in excess of $1 for each hour worked.
The guaranteed rate was paid even though her earnings on the piece-rate basis did not
equal the $1 hourly rate. The Respondent's payroll records showed for each weekly
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period the productivity of each employee as reflected by the earnings on a piece-rate
basis. Where these earnings fell below the guaranteed minimum paid to the em-
ployee the difference was recorded as "makeup ." Jackson's records show makeup in
each payroll period beginning with her employment in April and ending with the
July 7 period. Thus in her 10-day periods she worked a total of 313 hours for which
her gross pay, less overtime and holiday payments , was $313 . Of this sum $ 119.63
represents her piece -rate earnings and $193.37 is makeup . In explanation of her
failure to make her so-called weekly minimum , Jackson testified that there were
some days when there would be insufficient coats to keep her and the other employees
engaged in her particular operations fully occupied. At such times they would share
whatever work was available.
The Respondent's payroll records in evidence do not reveal the precise duties
of its employees. The only comparison which may fairly be made on this record of
Jackson's performance with that of other employees would be by comparing her rec-
ords with those of other employees who were then doing like work. Jackson's cross-
examination contains her concession that employees Fayrene Burnett and Joy Erek-
son were doing "about the same kind of work" that she had done. She further
acknowledged that employees Billy Spradlin and Mildred Goalsby had also been
sewers. There is other testimony that Goalsby did buttonholing. Neither Burnett,
Erekson, nor Goalsby were discharged on July 72 Spradlin was discharged that day
but was recalled within a few days and still works for the Respondent .3 Burnett's
payroll records show that during eight payroll periods beginning with the period
ending May 19 and continuing through the July 7 period she worked 268/ hours
for which she was paid, excluding overtime and holiday pay, $268 50. Of this sum
$138.75 represents her piece-rate earnings and $129.75 is makeup. Erekson's rec-
ords show that during two payroll periods, the one ending June 6 and the other
July 7, she worked 47 hours for which she was paid, excluding holiday pay, $47. Of
this sum $24.78 represents her piece-rate earnings and $22.22 is makeup. Spradlin's
records show that during 10 payroll periods beginning with the period ending May 5
and continuing through the period ending July 7, she worked 3541/2 hours for which
she received, excluding overtime and holiday pay, $354.50. Of this sum $162.55 repre-
sents her piece-rate earnings and $191.95 is her makeup. Goalsby worked on
piece rates from the pay period ending May 5 through the July 7 period, and beyond
then. In the periods ending July 7 she worked 392 hours for which she received,
excluding holiday and overtime pay, $391.50. Of this sum $173 34 represents her
piece-rate earnings and $218.16 is makeup.
Jackson, as previously noted, was one of the three employees who met at her house
with the Union's representative on June 10 or 12 to start the Union's campaign. In
addition to joining the Union and attending its June 15 and 29 meetings she spoke in-
dividually to 50 or 55 employees in behalf of the Union both at and away from the
plant and also obtained by solicitation the signatures on union authorization cards of
20 or 25 employees.
Nena Rhodes started her employment with the Respondent in January 1961. After
working 4 weeks she had a break in service. She resumed her employment with the
Respondent in May and continued without interruption until her discharge on July 7.
During her entire employment for the Respondent she sewed linings. Like the other
female employees discharged on July 7, she received a written notice from Berlin
which stated, "Since speaking with you 2 weeks ago I have not seen the required
improvement. I must therefore inform you that your services are no longer needed."
Rhodes acknowledged that Berlin had addressed the employees in the plant about
2 weeks before July 7 and had, as he had done in May, demanded improved pro-
duction. She denied that he had ever spoken to her personally about her production
although she had observed him speaking directly to other employees about theirs.
She claimed that it was impossible because of Berlin's low piece rates for her to
avoid makeup.
Comparison of Rhodes' production records with those of other employees is
handicapped by lack of information on the payroll sheets in evidence of other em-
ployees to permit determination of which others, like Rhodes, performed lining-
sewing operations. From her testimony it may be gleaned that at least employee
2 Jackson testified that Burnett and Erekson had joined the Union, but that Spradlin
and Goalsby had not
8 According to Berlin, when Spradlin was notified of her discharge for inefficiency on
July 7 she begged him to give her other work. At the same time she told him that she
had not joined the Union. He took her back, he said, because a couple of persons came
to him in her behalf and because be found coat -cleaning work for her which required no
special skill
PHIL MODES 73
Etta Mae Bradley and Dorothy Manoy were lining sewers. Bradley was not dis-
charged . The record does not indicate whether she was a union adherent or not.
Manoy was discharged and then later recalled under circumstances already described
and which will again be mentioned in the discussion below pertaining to her dis-
charge. Manoy had joined the Union. Rhodes' payroll records show that she was
paid by piece rate from the pay period ending May 5 through the 10 periods ending
on July 7. She worked during this time 398 hours for which she received, excluding
holiday pay, $398. Of this sum $249.12 represents her piece-rate earnings and
$148.88 is makeup. Bradley's piece-rate pay started in the pay period ending May 5
and continued successively for 10 periods through the July 7 period and then beyond
that date. For the first 10 periods she work 398 hours for which she received, ex-
cluding holiday pay, $398. Of this sum $278.23 represents her piece-rate earnings
and $119.77 is makeup. Manoy's employment on piece rates began in the pay
period ending June 23. During the three periods in which she was employed before
her discharge on July 7, she worked 118 hours for which she received, excluding
holiday pay, $118. Of this sum $61.36 represents her piece-rate earnings and
$56.64 is makeup.
Concerning Manoy, it is pertinent to restate only what has been found above,
namely that when she was recalled by Berlin on July 14 after her July 7 discharge, he
asked her why she had signed a union card and admitted he had terminated her em-
ployment not because of dissatisfaction with her work but because he was disturbed
over her joining the Union.
Before her discharge on July 7 Juanita Lambright had worked for the Respondent
less then four full pay periods beginning with the period ending June 16 as a joiner.
She joined the Union in June and attended its June 15 and 29 meetings. On the day
of her discharge, as found above, Berlin asker her whether she had signed a card for
the Union and she admitted she had. Lambright acknowledged that she was present
in June when Berlin made a speech to the employees in which he warned that
employees who could not do their work would be discharged. She testified that
while Berlin had each week told her she had to increase her production, he also
told her each week that her production was improving. The record permits no
comparison between Lambright's production with that of others, as it cannot be deter-
mined from the record which other employees performed like duties. Her data
reveals that during her employment she worked 134 hours for which she was paid,
excluding holiday pay, $134. Of this sum $73.99 represents her piece-rate earnings
and $60.01 is makeup.
Berlin testified that he discharged Jackson, Rhodes, Manoy, and Lambright
because "there was just no hope" that they would become efficient producers. He
had judged their competence and concluded they should be terminated by his
weekly inspection of the payroll sheets, which he called his "bible," and which
revealed their repeated failure to meet minimum production requirements. He
had been seriously concerned with the amount of makeup shown by his operators
on their payroll sheets and had in the past urged them in meetings at the plant to
improve. He recalled such a meeting in the month of May and he remembered
that there had been a meeting 2 weeks before July 7 at which time he had told
the employees that if they did not improve he would have "to do something about
it." He was sure they understood that this meant that if they failed to improve
sufficiently he would have to discharge them. On July 7 there were a number of
employees including those who were discharged who still showed makeup on their
payroll sheets. Berlin apparently claims to have lost patience on that day and
decided that some of these employees would have to be discharged. As to why
he discharged some and retained others who were also failing to meet his production
requirements, he testified that he selected those easiest to replace and kept those
who showed improvement. He acknowledged that his operators were inexperienced
employees who needed a training period in which to develop their skills, but claimed
that he had been notably generous in giving them time to learn their jobs. He
testified ",the average manufacturer gives a girl 4 weeks time as an apprentice to
make the minimum I gave them 4 weeks and then I give them 4 weeks again."
Manoy's discharge, he said, had been a mistake. When, after her discharge, he
checked his records and discovered she had worked only 3 weeks, he recalled her.
Rhodes he let go, he claimed, because when he had pointed her $14 or $15 weekly
makeup, she would insist it was impossible to make her minimum because of the
low piece rates he had fixed for her work. He claimed he would have kept her
if she said she would try to improve, but instead she maintained she could never
make the minimum and he therefore had to let her go. As to Jackson his testimony
was that he discharged her simply because of her inefficiency. He denied knowing
that she had solicited for the Union.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Findings already made establish Berlin's intense opposition to the unonization
of the Respondent's employees. These findings also show clearly that he imple-
mented his opposition and determination to exclude the Union from the Respondent's
plant by a long series of coercive acts violative of Section 8(a) (1) of the Act. I
am convinced that on July 7, the day after learning officially of the filing of the
Union's representation petition, he proceeded further along his unlawful path
by discharging Adams, Jackson, Rhodes, Manoy, and Lambright.
Having credited Manoy's testimony that on July 14 Berlin admitted to her that
he had discharged her for joining the Union. Nothing else need be considered in
determining that her July 7 discharge was unlawful.
Lambright's discharge on July 7 also seems patently unlawful. Mindful that
Berlin by his own testimony did not discharge new employees who worked there
less than 8 weeks where they showed improvement, the defense provides no logical
explanation for Lambright's discharge. While she had not yet improved during
her short tenure to the point where she met minimum production requirements she
was making weekly progress. In fact her progress was comparable to Manoy's and,
as the latter's discharge was admittedly a mistake, what explanation could there
be for Lambright's discharge? By Berlin's own standards she would have been
retained unless he had other reasons for getting rid of her. I am satisfied he did.
He had interrogated her on the very day of her discharge concerning her union activi-
ties and had learned that she was a supporter of the Union. This was his reason for
quickly discharging her in violation of his own procedures.
I reject Berlin's denial that he was aware of Jackson's wide spread solicitations
for the Union. This employee not only instigated the Union's campaign by a first
meeting at her home, but engaged in such broad scaled activities that she could
easily have qualified in Berlin's mind as the ringleader of the Union. I infer that
Berlin acquired knowledge of her activities in view of his extensive interrogations.
Considering his threat to discharge Turcotte who he had suspected at first was the
ringleader, I have no doubt that he discharged the real leader when on July 7, after
the filing of the Union's petition, its campaign appeared to be reaching its peak I
appreciate the fact that Jackson's production was consistently below the minimum
required, and that in other circumstances her discharge for this reason would have
occasioned no surprise. But Goalsbv's record was not much better on July 7 and this
employee who had not joined the Union, a fact of which I am convinced Berlin
was aware, was not discharged. I am not persuaded by Berlins self-serving explana-
tion that he kept Goalsby despite her inadequate record merely because she had
promised to do better, and that this was a point of distinction between her and
Jackson. Spradlin's record was not much different from Jackson's, and while he did
discharge Spradlin despite her entreaty that she was not a member of the Union
he also recalled her in a few days. That he was requested by someone to give her
work and that he assigned her to simple duties does not satisfy me that her non-
membership in the Union was not a factor in according her and not Jackson such
consideration. That Berlin did not discharge Burnett and Erekson whose production
on July 7 was also short of the minimum does not affect my belief that Jackson was
discharged for unlawful reasons. Berlin testified that he could not discharge as
many low producers as he might have desired because he had first to obtain replace-
ments. In this instance he would probably have completely stripped the buttonholing
section of practically all its employees had he discharged all who belonged to the
Union. Moreover, it was not necessary for him to discharge everyone who belonged
to the Union in order to convince those employees who remained as to what
might befall them if they continued their support for the Union.4 His purpose
was effectively accomplished by the discharge of one of its most active, if not the
most active, adherent.
Rhodes, also, in my opinion was discharged for her union membership, a fact
which I infer was known to Berlin. Her makeup was not significantly worse than
Bradley's who was retained. Certainly her record was better than others who were
retained and who, conceivably, did work comparable to hers. In view of Berlin's
clearly shown discrimination in Manoy's discharge, for the admitted reason that
she had joined the Union, I can in Rhodes' case reach only the conclusion that he also
discharged her the same day for the same reason.
Finally, asto Adams, the record, based on findings I have already made, shows
that on July 5 Berlin told him he was discharged because of his union membership.
He appears temporarily to have thought better of this action for Adams was permitted
4 See N L R B. v. W C Nabors d/b/a W. C. Nabors Company, 196 F 2d 272 (C A 5),
cert. denied 344 U.S. 865.
PHIL MODES 75
to work the next 2 days. But the change of heart was overcome on July 7 and
Adams was included with the others discharged that day. I am satisfied that it was
the filing of the Union's petition which hardened Berlin's determination to get rid
of Adams for his unconcealed adherence to the Union. As with Jackson it would
not have surprised me had Berlin in other circumstances discharged Adams for
mixing up the cloth pieces. But I do not believe that on July 7 this was the motivat-
ing reason for the discharge. If Adams' derelictions had been the motivating factor,
the question logically is raised why Berlin had not discharged him the preceding
week when he had last made this mistake but, instead, waited until July 7 to do so.
The answer, I am convinced, is that Adams' shortcomings did not motivate Berlin to
discharge him before July 7, and that he was discharged on that day, not for anything
relating to his work, but because of his adherence to the Union.
I find that the discharge of employees Adams, Jackson, Rhodes, Manoy, and
Lambright for their support of and adherence to the Union constituted unlawful
conduct by the Respondent violative of Section 8(a)(3) of the Act. I shall recom-
mend dismissal of the allegations of the complaint that the discharges of employees
Chitty, Schuder, Morgan, and Turcotte were unlawful.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent 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 thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act. I shall further recommend that the Respondent offer immediate and full
reinstatement to Jack Adams to his former or substantially equivalent position with-
out prejudice to his seniority or other rights or privileges. While it has been found
that the Respondent unlawfully discharged certain other employees because of their
union activities, the record discloses that subsequent thereto the Respondent upon
the advice of its counsel and in order to toll any possible backpay to these employees
make valid offers of reinstatement to them to their former employment. Accord-
ingly, it is not necessary to recommend that the Respondent make offers of reinstate-
ment to these employees. I shall recommend that the Respondent make whole em-
ployees Adams, Jackson, Rhodes, Manoy, and Lambright for any loss they may
have suffered because of the discrimination against them on July 7, 1961, by pay-
ment to them of sums of money equal to the amounts they normally would have
earned as wages from that date to the date of the offers of reinstatement to them,
with backpay to be computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289.
'Because the Respondent's unfair labor practices go to the heart of the Act, the
commission of similar and of other unfair labor practices may reasonably be antici-
pated . It will therefore be recommended that the Respondent be ordered to cease
and desist from in any manner infringing upon the rights guaranteed its employees
by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Lloyd Walters and Theresa Walters, a partnership d/b/a Phil Modes, are an
employer within the meaning of Section 2(2) of the Act and are engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. International Ladies' Garment Workers Union. AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By coercively interrogating employees concerning their union activities, sympa-
thies, and the union activities of other employees, by threatening to discharge or
layoff employees because of their union activities, by threatening to close and move
its plant to evade the Union, by declaring that it will not tolerate the unionization of
its plant, by stating to employees that it will prevent them from holding union meet-
ings through the use of influence at public meeting places, by requesting employees
to obtain and to supply it with information concerning the union activities of em-
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, and by ordering employees to cease all union activities at any time or place
within its premises the Respondent has engaged in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. By discriminating with respect to the hire and tenure of employment of em-
ployees Jack Adams , Katherine Jackson , Nena Rhodes, Dorothy Manoy, and Juanita
Lambright, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Raleigh Water Heater Mfg. Co. , Inc. and United Steelworkers
of America, AFL-CIO. Cases Nos. 12-CA-1526 and 12-CA-
1695. March 2, 1962
DECISION AND ORDER
On August 14, 1961, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in unfair labor practices in violations
of Section 8 (a) (1), (3), and (5) of the Act and recommending that
it cease and desist therefrom and take certain affirmative action as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the Respondent and the General Counsel filed exceptions to the
Intermediate Report and supporting briefs.'
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 committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and adopts the findings, conclusions, and recommendations of
the Trial Examiner only to the extent consistent herewith.
1. The Trial Examiner found that the Respondent refused to bar-
gain in good faith in violation of Section 8 (a) (5) and (1) of the Act,
basing his conclusion on his findings of: (a) repudiation of prior
commitments and attempts to begin negotiations de novo; (b) un-
willingness to enter into any collective-bargaining agreement until
the unfair labor practice charges filed by the Union were disposed of
by this Board; (c) unilateral grant of wage increases; and (d) the
entire course of conduct at the negotiating meetings. We do not agree.
(a) The Union was certified on April 17, 1960, and negotiations
began early in May and continued until July 29. During this period
'Respondent's request for oral argument is denied as, in our opinion , the entire record
in this case adequately presents the issues and positions of the parties.
136 NLRB No. 6.