Punch and Judy Togs, Inc. of California

National Labor Relations Board - Board Decisions

Aug 1, 1949

85 N.L.R.B. 499 (N.L.R.B. 1949)

In the Matter Of PUNCH AND JUDY TOGS, INC. OF CALIFORNIA and IN-
TERNATIONAL LADIES' GARMENT WORKERS' UNION, A. F. OF L.
Case No. 21-CA-151.-Decided August 1, 1949
DECISION
AND
ORDER
On April 18, 1949, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board 1 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 Inter-
mediate Report, the exceptions and brief of the Respondent, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner only insofar as they are
consistent with our findings, conclusions, and order hereinafter set
forth.
The Trial Examiner found that Mrs. Douglas was discriminatorily
discharged or refused reinstatement because of her membership in
the Union. We are not convinced that the record warrants a finding
that the Act has been violated.
We realize, with the Trial Examiner, that the Respondent's con-
duct and position in this case raise a strong suspicion of unlawful
action, for the following reasons :
1. Respondent alleged in its answer to the complaint that Douglas
was laid off because of a falling off of business. At the hearing, Re-
spondent's president, Tucker, repudiated this reason, contending that
i 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 Reynolds , Murdock, and Gray].
85 N. L. R. B., No. 85.
499
857829-50-vol. 85-33
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she was laid off because of "sloppy" and incompetent work. Re-
spondent failed to support this contention. On the contrary, as fully.
set forth in the Intermediate Report, the record supports a finding
that she was an experienced, competent employee.
2.. The discharge took place suddenly, only 2 days after the union
organizational meeting.
3. Respondent failed to inform Douglas of the reason of the dis-
charge, and her immediate supervisor told her that he did not know
why she was discharged.
4. Respondent rehired several of the laid-off employees with less
experience and seniority than Douglas.
Although we are aware, as was the Trial Examiner, of the lack of
an adequate defense for the failure to reemploy Douglas and that this,
together with the circumstances noted above, raises a strong presump-
tion of discriminatory action, we cannot base a finding of the violation
of the Act on suspicion alone. There must be a preponderance of
evidence to show that Respondent was motivated by antiunion con-
siderations. . This the record fails to disclose.
1. The record is undisputed that when Douglas was discharged on
April 30, 13 other girls were also discharged. So far as the record
shows, only 2 of these girls, Douglas and McNabb, had signed union
cards at the organization meeting of April 28.2 The lay-off s con-
tinued through the month of May, although a few of the laid-off
employees were subsequently rehired.
2. There is no evidence that Douglas had assumed a position of
leadership or had played any active part in the union campaign.
3. At least one other girl who signed a union card, McNabb, was re-
employed.
4. Tucker knew that Douglas was a union member when he hired
her and interposed no objections to employing her on this ground.
5. The record otherwise fails to reveal any evidence of union animus.
In fact, the statement relied on by the Examiner for his finding that
such feeling existed, namely, that Tucker told the union representa-
tive he "would need at least about a year before I couild even consider
such a thought, unless the help themselves wanted such a thing and I
had no jurisdiction over it," taken in its context, warrants no inference
that Tucker had antiunion prejudices. On the contrary, the proviso
"unless the help themselves wanted such a thing" effectively counter-
acts whatever inference might be drawn from that portion of the
' The Trial Examiner found there were seven employees of Respondent who attended
the union meeting . Douglas and McNabb signed union cards, one operator, Mayoros, and
Supervisor Mifflin did not sign , and two others who had signed were not clearly identified.
Mrs. White , at whose house the meeting was held, signed , but she had been laid off 2 or 3
days earlier.
PUNCH AND JUDY TOGS, INC. OF CALIFORNIA 501
statement underlined by the Trial Examiner. We therefore find that
this statement does not disclose an antiunion attitude on the part of
the Respondent. Nor do we find any evidence from which the Trial
Examiner could draw the inference made by him that "Tucker un-
doubtedly interpreted Mrs. Douglas' attendance at the meeting as a
display of intent by her to use her influence in immediately compelling
Respondent to recognize the Union as bargaining agent for all of its
employees."
We therefore find that in discharging Douglas, Respondent did not
violate Section 8 (a) (1) or 8 (a) (3) of the Act, as amended.
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 complaint issued herein
against the'Respondent, Punch and Judy Togs, Inc. of California, be,
and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr. Jack E . Berger, for the General Counsel.
Novaok and Hobcrlcorn , by Mr . Julius J. Novack, of San Bernardino , Calif.,. for
the Respondent.
STATEMENT OF THE CASE
Upon a second amended charge duly filed on November 1, 1948, by Interna-
tional Ladies' Garment Workers' Union, A. F. of L. (herein called the Union),
the General Counsel of the National Labor Relations Board,' by the Regional
Director for the Twenty-first Region (Los Angeles, California), issued a com-
plaint, dated November 10, 1948, against Punch and Judy Togs, Inc. of Cali-
fornia (herein called the Respondent), alleging that the Respondent had engaged,
and was engaging, in unfair labor practices within the meaning of Section 8 (a)
(1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as
amended, Public Law 101, 80th Congress, 1st Session (hereinafter called the
Act). Copies of the complaint, the amended charge, and notice of hearing thereon
were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,,
that: (1) on or about April 30, 1948, Respondent discharged, and thereafter
refused to reinstate, Georgie Douglas, because of her membership in, and ac-
tivities on behalf of, the Union; (2) by such acts, Respondent interfered with,.
restrained, and coerced its employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act.
The Respondent thereafter filed its answer, admitting the allegations of the
complaint with respect to its business operations, but denying the commission
of any unfair labor practices. With reference to the discharge of Georgie Douglas,
the answer alleged that she was "laid off of work . . . by reason of this corpo-
ration's drop in business."
'The General Counsel and his representatives at the hearing'are herein called the Gen-
eral Counsel , and the National Labor Relations Board is called the Board.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held January 21-24, 1949, at Los Angeles,
'California, before the undersigned Trial Examiner, duly designated by the Chief
'Trial Examiner. The General Counsel and the Respondent were represented by
counsel and participated in the hearing. Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bearing upon the
issues was afforded all parties. At the opening of the hearing, the General
Counsel made a motion to amend the complaint by adding an allegation thereto
charging that the Respondent violated Section 8 (a) (4) of the Act by discrimi-
nating against Georgie Douglas "because the Union has caused to be filed in
her behalf unfair labor practice charges against Respondent." The motion was
denied? At the close of the General Counsel's case (except for the deposition
subsequently taken and hereinafter mentioned) Respondent made a motion to
dismiss the complaint. The motion was denied. At the close of the hearing,
the General Counsel moved to conform the pleadings to the proof with respect
to formal matters ; the motion was allowed, without objection.
Before the close of the hearing, on January 24, the General Counsel advised
that he desired to offer the testimony of one Alfred Schneider, a union official,
who was not then present in Los Angeles. Without objection, leave was granted
to the General Counsel to take the deposition of said witness on January 28,
1949, with opportunity to the Respondent to take the further deposition of
Harold Tucker in rebuttal of any testimony offered by Schneider. Both deposi-
tions were taken and are now a part of the record herein. The parties waived
oral argument. The time to file briefs was extended to March 31, 1949, within
which period both the General Counsel and the Respondent filed briefs for my
consideration.
Upon the entire record in the case, I make the following :
FINDINGS OF FACT
1. BUSINESS OF THE RESPONDENT
The Respondent, Punch and Judy Togs, Inc. of California, is a California
,corporation, doing business at San Bernardino, California. It is engaged in the
business of manufacturing and selling children's shirts, jackets, overalls, slacks,
and crawlers (babies' overalls). The Respondent, in the course and conduct of
its business operations during the year 1948, purchased raw materials consisting
of cottons, woolens, and rayons valued at approximately $96,000, of which about
92 percent was shipped to Respondent from outside the State of California.
During the same period, it manufactured and sold its finished products, having
an approximate value of $246,000, of which about 80 percent was sold and
shipped to customers outside the State of California. Accordingly, I find that
Respondent is engaged in commerce within the meaning of the Act.
2 The General Counsel, in his brief, fails to take note of the denial of this motion, stating
instead that "this motion was taken under consideration by the Trial Examiner and, for
the purposes of this Brief, counsel for the General Counsel will assume said motion was
granted." This confusion may be due to the fact that after definitely announcing the rul-
ing, I stated that "If I should change my mind ... [and] if you can supply such authori-
ties [to permit the amendment] I can dispose of the matter in the Intermediate Report."
The General Counsel's brief contains no argument or citation of authorities on this point.
The denial, in any event, was proper and is adhered to. No charge alleging a violation of
.Section 8 (a) (4) of the Act was ever served upon Respondent as required by Section 10
,(b) thereof Cf. Matter of Erving Paper.Mills, 82 N. L. R. B. 434, ftns. 5, 6..
PUNCH AND JUDY TOGS, INC. OF CALIFORNIA 503
II. THE ORGANIZATION INVOLVED
International Ladies Garment Workers' Union , A. F. of L., is a labor organ-
ization and admits employees of the Respondent to membership. .
III. THE UNFAIR LABOR PRACTICES
A. Background and chronology of events
The Respondent was incorporated on October 18, 1947. The building which
it was to occupy was not completed until mid-November of that year. Several
weeks prior thereto, Harold Tucker, Respondent's president, interviewed Mrs.
Georgie Douglas, a prospective employee, he having previously made application
to the State Unemployment Compensation Commission for assistance in securing
employees. Mrs. Douglas was a woman of 25 years' experience as, an operator
of the type of machine which Respondent planned to use. Tucker, impressed by
her experience, advised Mrs. Douglas that as soon as he was ready to com-
mence operations he would have his foreman get in touch with her. On November
13, Foreman Louis Szilogyi came to her home and asked her to report for work.
She did so immediately and, together with Mrs. Szilogyi and members of Tucker's
family, began the making of samples so that Tucker could display the line of
merchandise he hoped to sell. During those early days, Mrs. Douglas did all types
of machine sewing necessary "to finish-or make the garment-sewing on cuffs,
sleeves, or whatever it was, to finish a garment." Tucker augmented his staff and,
in December, Mrs. Douglas commenced sewing collars, to which operation she
devoted most, if not all, of her time until she was discharged on April 30, 1948.
Tucker originally fixed her pay at 75 cents per hour, which rate continued until
about January 5, 1948, at which time her rate of pay was changed to piecework.
On or about January 30, 1948, she was returned to the 75 cents hourly rate, which
was increased to 80 cents per hour approximately a month later.
On or about April 20, 1948, Vera Talley, local representative of the Union, com-
menced organizational activity at Respondent's plant by the circulation of union
literature. She arranged for a union meeting to be held at the home of Mrs.
Caroline White on the evening of April 28, attended by Miss Talley and another
union representative. Seven women employed by the Respondent attended the
meeting,' including Mrs. Evelyn Mifflin, then employed in a supervisory capacity
by Respondent "in charge of the inspection and trimming department." Of these
seven, all but Mrs. Mifflin and Margaret Mayoros signed union' "authorization"
cards. Two days later on April 30, Mrs. Douglas was discharged'
When advised by the Board on May 26, 1948, that charges had been filed against
Respondent alleging that Mrs. Douglas and two other employees had been
discharged because of their union activity, its manager on May 26 replied, in
writing, that they were not discharged, but were "merely laid off because of
seasonal slow down in production." Respondent's Answer, verified by Tucker
on December 13, 1948, pleaded that Mrs. Douglas was laid off because "business
fell off." At the hearing, however, Tucker disavowed the foregoing as the
' Included in this group was Mrs. White ( who had been laid off 2 to 3 days earlier),
Mamie McNabb , Margaret Mayoros, Mrs . Douglas, Rachel ____, and one other unidentified
employee.
4 Though the answer pleaded , and some of the witnesses testified, that Mrs. Douglas was
merely "laid off," the failure to reinstate her when the staff was appreciably augmented
after April 30, 1948, indicates that tbe.severance was in fact a discharge.
Z04 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason for the discharge. He further testified that the employees laid off on
April 30, including Mrs. Douglas, were laid off because of "sloppy work and
.not business conditions. We were fortunate enough in having enough business
in the house. Such a variance between pleading and proof, in and of itself,
is sufficient for any trier of fact to hesitate appreciably before giving credence
to either claim. In the light of Tucker's express disavowal of a "seasonal slow
down" as the reason for the discharge, no further attention need be given to
that theory as a justifiable ground for Respondent's action in discharging Mrs.
Douglas.
A careful analysis of the entire record leads me, unhesitatingly, to discredit
the only other theory now asserted by Respondent as the reason for the dis-
charge-that Mrs. Douglas was incompetent, and that her work was "sloppy [and]
blotched." Indeed, no credible evidence was offered to prove either that she was
generally incompetent or that any specific work done by her was subject to
any more rejection or criticism than fell to the lot of the other operator work-
ing with her on collars, and who was not discharged. There not only was a
failure to prove general incompetence, but, on the contrary, the record abounds
in convincing indicia of competence. First, Mrs. Douglas was a woman of 25
years' experience in the same type of work in which she was engaged for the
Respondent. Though Tucker interviewed "droves" of applicants before oper-
ations began, Mrs. Douglas' experience impressed him to such an extent that
she was the first machine operator employed by him. This has extraordinary
significance, because her initial task was to make samples for display to Re-
spondent's prospective customers, and it was important that the samples reflect
the best of workmanship. Because of her aptitude, she successfully trained
the other operator engaged in sewing collars. The fact that she was steadily
employed from November 13, 1947, to April 30, 1948, is further proof that she was
competent. Tucker testified that he achieved efficiency of operations "by a
process of elimination.-We have a certain amount of time that we allot a girl
to do her work in, that is, the experienced girl who comes and explains that
she is experienced. If we feel that after a couple of -toeeks the girl isn't living
np to her standard after claiming that she had so many years of experience,
why we just have to go further. A new girl-we will give her a couple or 3
or 4 days to see whether she gets the feel of working at a machine." If these
standards are applied indiscriminately to Mrs. Douglas, her continued employ-
ment stands as an unequivocal memorial to her competence. Significant too is
the fact that Foreman Szilogyi, "in charge of the factory," on several occasions
praised her work, the last time on April -30, the day she was discharged.5 And,
though Tucker testified at considerable length, he did not deny that in mid-
January 1948 he expressly complimented Mrs. Douglas on her "collar setting,"
and generally expressed pleasure concerning her work.
The manufacture of the garments in April 1948 was divided into approximately
23 operations, five of which were devoted to collars. Mrs. Douglas, as previously
noted, was charged with the responsibility of only one operation, that of setting
collars. It apparently was the practice to have no inspection of the separate
5 Szilogyi did not testify. Respondent on January 24, 1949, introduced into evidence a
doctor's written statement, dated January 20. 1949, to the effect that Szilogyi was ill and
that in the opinion of the doctor it was advisable that Szilogyi "stay out of the weather
for several days." Though the General Counsel volunteered "to agree to a continuance if
Mr. Szilogyi's testimony is deemed necessary," Respondent expressed no such desire. Fur-
thermore, though by agreement of the parties, a. rebuttal deposition of another witness in
behalf of Respondent was taken on January 28, 1949, no such request was made to take
Szilogyi's deposition.
PUNCH AND JUDY TOGS, INC., OF CALIFORNIA 505
work of the various employees until the entire garment was completed. If an
examination thereof then disclosed defective workmanship, it was returned to
the operator or operators engaged in the specific operation found unsatisfactory.
There was no evidence that any of the rejects were due to Mrs. Douglas' poor
workmanship. While there was some evidence that a portion of the rejects
were due to "poor collars," the testimony is undisputed that during the entire
period that Mrs. Douglas was engaged on collar work, other employees (at least
one of whom had no prior collar experience) were likewise engaged in the
collar operation.
Nor is it consistent with an alleged claim of incompetence to reward an in-
efficient employee with increased remuneration. Tucker testified that while
the employees were working on a piecework basis (January 1948) there were
"close to 12 dozen (rejects) in one day, when my inspector called my attention
to it," and that in the middle of March, the rejects "were extraordinarily unheard
of in the average factory. It was enough to either have a man go out of busi-
ness or to go broke. That is how bad they were coming through." Not only
was there no testimony that any of these rejects, on either occasion, were due
to improper workmanship by Mrs. Douglas, but the inference must be to the
contrary, for her pay was raised on two occasions after the general unsatis-
factory workmanship was called to Tucker's attention. Thus, though Mrs.
Douglas was hired at 75 cents an hour, her rate of pay was changed on or about
January 3, 1948, to a piece-rate basis, with the result that her average weekly
earnings for the next 4 weeks were $48.30, instead of the $30.00 per week she was
earning at ,the 75 cents hourly rates. Though she was, on or about February 1,
returned to the 75 cents hourly rate, this compensation was increased to 80
cents an hour on or about February 27, 1948. And, when, in the latter part of
April, only a short time before she was laid off, Mrs. Douglas demanded an in-
crease to $1.00 per hour, Tucker, though denying the request, made no coin-
plaint about her work. At the risk of emphasizing the obvious, I cannot avoid
the observation that, if her work was really incompetent, Tucker would at
least have mentioned his dissatisfaction therewith when a demand for an increase
in wages was made only a short time before she was discharged.
B. Conclusions
To establish the violations alleged in the complaint, the burden of proof rests
on the General Counsel to prove by a preponderance of the evidence that Mrs.
Douglas was discharged because of her membership in, and activity on behalf
of, the Union. Experience in labor relations, however, has shown that not-
withstanding the certainty that may be entertained by any fair-minded trier
of fact that a discharge was in fact discriminatory and in violation of the Act,
direct and express proof thereof is lacking. The reports abound in examples of
subterfuges and subtleties devised, pleaded, and supported by sworn testimony,
all for the purpose of evading liability under the Act. Fortunately, however,
in the search for truth in the administration of law, resort may be had, in appro-
priate fields, to interference and conclusions drawn from established facts.' Such
permissible latitude here, coupled with the direct proof established by the
record, leads to the inescapable conclusion that Mrs. Douglas was discharged
because of her membership in, and activity on behalf of, the Union. My reasons
for drawing that conclusion are as follows :
ON. L. R. B. v. Nevada Consolidated Copper Corporation, 316 U. S. 105 ; N. L. R. B. v.
Walt Disney Productions, 146 F. (2d) 44 (C. A. 9).
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. While I have already alluded to the burden of proof resting on the General
Counsel, nevertheless, in the resolution of the important question of fact in-
volved herein, recourse may be had to the failure of Respondent to prove that
Mrs. Douglas was discharged for either of the conflicting reasons assigned by
it, and its complete disavowal of the grounds for the discharge alleged in its
Answer.
2. The record establishes by a preponderance of the evidence, if not con-
clusively, that Mrs. Douglas was a competent worker.
3. The timing of the discharge. This took place iminediatelp/ after Tucker
returned from an out-of-town trip, and at the first opportunity he had to be
personally advised of the union meeting attended by Mrs. Douglas.
4. Though Szilogyi was "in charge of the factory," and the alleged ground
for the discharge was incompetence, neither Szilogyi nor the forelady was con-'
sulted about the discharge.
5. Szilogyi did not know why Mrs. Douglas was discharged.
6. Notwithstanding Tucker's lip service to the freedom of choice to be exer-
cised by his employees, Tucker himself testified that in early May 1948, he told
the union representative who called on him for the purpose of organizing the
plant, that he "would need at least about a year before I could even consider
such a thought, unless the help themselves wanted such a thing and I had no
jurisdiction over it." Such a sentiment and frame of mind, which must like-
wise have existed on April 30, shows a clear and definite antiunion attitude
on the part of Respondent and the motive for discharging Mrs. Douglas.
7. Within a short time after April 30, Respondent reemployed five or six of the
other employees laid off on April 30. Among those reemployed was Mrs. Mc-
Nabb, junior in service to Mrs. Douglas, and who, Tucker testified, was likewise
laid off because of her "sloppy work."' No explanation was given by Respond-
ent why it failed to give preference to Mrs. Douglas (the first nonsugervisory
employee engaged by Respondent), not only over Mrs. McNabb, but over the
large number of other operators employed after that date.
While it may be that Respondent did not discriminate against Mrs. Douglas
merely because of her union. membership, of which it had earlier knowledge,'
the fire of discrimination was ignited by her attendance at the union meeting in
the home of Mrs. White. There can be no doubt that Respondent had knowledge
of this activity. Union literature was distributed to all of its employees a short
time before the April meeting. Mrs. Mifflin, a supervisor, attended that meeting.
"Experience, evidenced by the Board's consideration of hundreds of similar situ-
ations over the past several years, and a realistic view of the matter, makes it
evident that in small shops such as this, union activities become generally known,
at least where no attempt is made to keep them secret, and often even then."'
Tucker undoubtedly interpreted Mrs. Douglas' attendance at the meeting as a
display of intent by her to use her influence in immediately compelling Re-
spondent to recognize the Union as bargaining agent for all of its employees.
Tucker's precipitate discharge of Mrs. Douglas immediately upon learning of
her attendance at the meeting, coupled with the expressed presently existing
hostility to the Union, can lead to no other conclusion..
4 This version of the reason for Mrs. McNabb's lay -off on April 30 is inconsistent with
Tucker 's letter to the Board dated August 14, 1948 . In that letter , he stated that Mrs.
McNabb was reemployed because she is the only one whose work is considered as satis-
factory by our foreman."
8 Mrs. Douglas and Szilogyi had previously been engaged in the same union shop.
9 Matter of Firestone Tire and Rubber Company, 62 N. L. it. B. 1316 , 1325; Matter of
Boreva Sportswear, Inc., 73 N. L. it. B. 1048, 1055.
PUNCH AND JUDY TOGS, INC. OF CALIFORNIA 507
Respondent urges that any discriminatory motive is negated by the fact that
Mrs. McNabb, who also attended the meeting and was also laid off April 30,
was shortly thereafter rehired. There is no merit to this contention. "The Act
forbids an employer from discriminating against any of his employees, even if he
shows that he knowingly refrained from discriminating against others." 10
"Clearly, a complete housecleaning of union members and supporters is not
essential to a finding that some employees have been discriminated against.""
I am convinced by a preponderance of the credible evidence that the real
reason for Respondent's discharge of Mrs. Douglas was her activity on behalf of
the Union, and her attendance at the union meeting on April 30, and I so find.
It is therefore found that the discharge was discriminatory for the purpose
,of discouraging membership in, and activities on behalf of, the Union. By such
action, the Respondent has interfered with, restrained, and coerced employees
in the exercise of rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring
in connection with its operations described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminatorily discharged Georgie
Douglas because of her union activities. It will therefore be recommended
that the Respondent offer to her immediate and full reinstatement to her
former, or substantially equivalent, position 12 without prejudice to her seniority
or other rights and privileges, and make her whole for any loss of pay she
may have suffered by reason of the Respondent's discrimination against her by
payment to her of a sum of money equal to that which she normally would
have earned as wages from the date of the discharge to the date of the Re-
spondent's offer of reinstatement, less her net earnings during said period.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. International Ladies' Garment Workers' Union, A. F. of L., is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
Georgie Douglas, thereby discouraging membership in the International Ladies'
1 Matter of Toledo Desk & Fixture Co., 65 N. L. R. B. 1086, 1108.
1 Matter of Stewart Warner Corporation , 55 N. L. R. B. 593, 610 ; Matter of Wooster
Brass Company, 82 N. L. R. B. 514, in. 1.
11 In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible , and if such position is no longer in existence , then to a substantially equiva-
lent position ." See Matter of The Chase National Bank of the City of New York, San
Juan, Puerto Rico, Branch , 65 N. L. R. B. 827.
508 DECISIONS OF NATION-\L LABOR RELATIONS BOARD
Gorment Workers' Union, A. F. of L., the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the
Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the above findings of fact and conclusions of law, the entire record in
the case, and pursuant to Section 10 (c) of the Act, I recommend that Punch
and Judy Togs, Inc. of California, of San Bernardino, California, its officers,
agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership of its employees in International Ladies' Gar-
ment Workers' Union of North America, A. F. of L., or in any other labor organi-
zation, by discriminatorily discharging, refusing to reinstate, or by discriminating
in regard to their hire or tenure of employment, or any terms or conditions of
employment ;
(b) In any manner interfering with, restraining, or coercing its employees
in the exercise of the rights of self-organization, to form labor organizations, to
join or assist International Ladies' Garment Workers' Union, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities, for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which I find will effectuate the
policies of the Act :
(a) Offer to Georgie Douglas immediate and full reinstatement to "her former
or substantially equivalent position, without prejudice to her seniority or other
rights and privileges, and make her whole in the manner set forth in Section V
above, entitled "The remedy" ;
(b) Post at its plant in San Bernardino, California, copies of the notice at-
tached hereto and market Appendix. Copies of said notice, to be furnished
by the Regional Director for the twenty-first Region, after being signed by repre-
sentatives of the Respondent, shall be posted by the Respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive clays thereafter,
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered with any other material;
(c) Notify the Regional Director for the twenty-first Region, in writing, within
twenty (20) days from the receipt of this Intermediate Report, what steps the
Respondent has taken to comply herewith.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
PUNCH AND JUDY TOGS, INC. OF CALIFORNIA 509,
with the Board, Rochambeau Building, Washington, 25, D. C., an original and
six copies of a statement, in writing, setting forth such exceptions to the Interme-
diate Report or to any other part of the record or proceeding (including rules
upon all motions or objections) as he relies upon, together with the original and
six copies of a brief in support thereof ; and any party may, within the same
period, file an original and six copies of a brief in support of the Intermediate
Report. Immediately upon the filing of such statement of exceptions and/or
briefs, the party filing the same shall serve a copy thereof upon each of the other
parties. Statements of exceptions and briefs shall designate by precise citation
the portions of the record relied upon and shall be legibly printed or mimeo-
graphed, and if mimeographed shall be double spaced. Proof of service on the
other parties of all papers filed with the Board shall be promptly made as required
by Section 203.85. As further provided in said Section 203.46, should any party
desire permission to argue orally before the Board, request therefor must be made
in writing to the Board within ten (10) days from the date of the service of the
order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board, and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 18th day of April 1949.
DAVID LONDON,
Trial Examiner.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist INTERNATIONAL LADIES' GARMENT WORKERS'
UNION, A. F. of L., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.
WE WILL OFFER to the employee named below immediate and full rein-
statement to her former or substantially equivalent position without preju-
dice to any seniority or other rights and privileges previously enjoyed, and
make her, whole for loss of pay suffered as a result of the discrimination.
Georgie Douglas
WE WILL MAKE WHOLE the following named employee for any loss of pay
suffered by her as a result of the discrimination.
Georgie Douglas
,510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain members of the above-named
Union or any other labor organization. We will not discriminate in regard
to hire and tenure of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
PUNCH AND JUDY Toos, INC. OF CALIFORNIA,
Employer.
By ----------------------------------------------
(Representative ) ( Title)
Dated -------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.