Somerset Shirt & Pajama Co.

National Labor Relations Board - Board Decisions

Oct 12, 1977

232 N.L.R.B. 1103 (N.L.R.B. 1977)

SOMERSET SHIRT & PAJAMA COMPANY
Somerset Shirt & Pajama Company and International
Ladies' Garment Workers' Union, Local Union
No. 445, AFL-CIO. Case 6CA-9130
October 12, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On July 13, 1977, Administrative Law Judge
William F. Jacobs issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, except
that the remedy is modified so that interest is to be
computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977).3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Somerset Shirt &
Pajama Company, Somerset, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Inasmuch as she agrees that Zimmers was discharged for engaging in
union activities, Member Murphy finds it unnecessary to pass on the
question of whether or not the nght of one employee to warn other
employees of informers among their ranks is protected by Sec. 7 of the Act.
3 See, generally, Isis Plumbing Heating Co., 138 N RB 716(1962).
232 NLRB No. 177
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: This
case was heard at Somerset, Pennsylvania, on October 27,
1976.' The charge was filed March 30 and amended on
April 26 and on May 17. The complaint issued May 20,
and an amendment to the complaint issued October 13.
Answers to both the complaint and the amendment to the
complaint were duly filed. The issues concern the alleged
unlawful terminations of employee Phyllis Zimmers and
allegations of 8(a)(1) violations including several threats,
the unlawful announcement and granting of a general wage
increase,3 the promulgation of an unlawful no-solicitation
rule, and the creation of the impression of surveillance of
employees' union activities.
All parties appeared at the hearing and were afforded full
opportunity to be heard and present evidence and
argument. Similarly, all parties filed briefs.4
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent is a Pennsylvania corporation engaged at
Somerset, Pennsylvania, in the manufacture and nonretail
sale of children's sleepwear. During the past year, Respon-
dent shipped goods and materials valued in excess of
$50,000 from its Somerset, Pennsylvania, facility directly to
points outside the Commonwealth of Pennsylvania. During
the same period, Respondent received goods and materials
valued in excess of $50,000 directly from suppliers located
outside the Commonwealth of Pennsylvania to be used
within the Commonwealth of Pennsylvania. Respondent
admits, and I conclude, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
I find in accordance with the stipulation of the parties
that the International Ladies' Garment Workers' Union,
Local Union No. 445, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent, in the course of manufacturing its product,
employs approximately 120-130 employees including
production, maintenance, and clerical staff. Irving Katz,
plant manager and part owner is, according to his own
uncontradicted testimony, the sole supervisor. In his
absence certain other individuals, Leo Short and Ralph
1 All dates are in 1976 unless otherwise stated.
2 Respondent admits the termination of Zimmers but denies that it was
unlawfully motivated.
3 Similarly. Respondent admits the announcement and the granting of
the wage increase but denies it thereb) violated the Act
'General Counsel filed a motion to correct transcript I find the
requested corrections warranted and they are hereby granted.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Housel, in particular, have taken care of the operation of
the various departments, but generally, the plant runs itself.
B. The Union Organizational Campaign
On February II, the International Ladies' Garment
Workers' Union, Local Union No. 445, hereinafter called
the Union, undertook an organizational campaign at
Respondent's plant when it began distributing leaflets at
the plant to employees as they were leaving the premises.5
The leaflets were of the type containing a form whereby
interested individuals were to fill in their names and
addresses and mail them to the Union's Johnstown office.
These forms included, as a part thereof, authorization
cards. A number of employees including Phyllis Zimmers,
the alleged discriminatee, filled out and mailed the cards as
requested. Zimmers received her leaflet and union card
from a woman distributing them, as she drove out of the
plant's parking lot, signed it and mailed it on the following
day, February 12.
Approximately a week after Zimmers signed the authori-
zation card, she was contacted by two union organizers
who visited her home.6 She was furnished at this time with
authorization cards to distribute among her fellow employ-
ees and advised to pass them out only on her own time. She
was instructed to have the authorization cards signed and
returned to her so that an election could be held.
Subsequently, Zimmers took the authorization cards to
work and distributed them among the other employees as
instructed. She asked each employee with whom she spoke
to sign the card and return it to her. The solicitations took
place in the restroom or in the lunchroom adjacent thereto
during breaks. While discussing the Union with potential
card signers, she explained to them the benefits to be
derived from union representation and offered to answer
whatever questions they might have. Zimmers sometimes
showed them union literature which described the role of
the Union in labor relations. She also furnished literature
to certain employees in the packing department who were
not particularly knowledgeable about union affairs. All in
all, Zimmers obtained the signatures of from 10--15
employees on union authorization cards. Between 20 and
30 employees signed cards during the first 2 days of the
campaign so that it is quite apparent that Zimmers was one
of the more active union sympathizers at the plant during
the first part of the organizing campaign. Zimmers' union
activities were well known among the employees including
s Katz testified that he was in New York on the day the leaflets and
authorization cards were distributed and was unaware at the time that an
organizing campaign had been initiated.
8 These organizers visited the homes of five or six employees at this time,
those who had mailed in the forms previously distributed. Each was
furnished with authorization cards for distribution and advised as to where
and in what manner the solicitation should take place.
Probably March 13.
a Zimmers worked closely with the Union on this matter and had
considerable input as to where and when the meeting was to be held.
9 Although the record is not entirely clear as to when Katz first learned
of the scheduled union meeting at the Holiday Inn. he testified: "I never
heard a thing [about the union } until I got the phone call, the night before."
Counsel then asked: "The night before what?" Katz testified in reply: "The
night before all this happened, the day of our meeting. which the union
meeting was on, March 18." Although elsewhere in his testimony Katz
those who testified on behalf of Respondent and who
witnessed and testified to those activities.
On the Saturday7 before Katz left again for New York,
he advised Leo Short who was in charge of running one of
the departments in Katz' absence that some people were in
the plant talking about the Union. He instructed Short to
make sure that when the employees went on break that
they took only the 10 minutes to which they were entitled,
that he did not want the employees "flitting all over the
place" while he was gone. He told Short that if any of the
employees should run out of work they should be brought
back to work on buttoning, "to make sure they are back
here buttoning, and not bull shitting." From these facts, I
conclude that Katz was not only aware of the existence of
union activity but that he was aware of the connection
between the union organizational campaign and the fact
that the campaign was being conducted during breaks.
Meanwhile, the Union kept in touch with the employees
whom it had assigned the task of distributing union cards
and soliciting signatures thereon. It scheduled the first
open union meeting for March 18 at 7 o'clock 8 at the
Holiday Inn and informed those more active union
adherents about the meeting by telephone. The latter, in
turn, publicized the meeting to other employees by word of
mouth and discussed the forthcoming meeting among
themselves at the plant. Katz, in the meantime, had
returned from New York and had received word of the
forthcoming union meeting via an anonymous phone call
which was received on March 17.9
On March 18, at 4 p.m., Katz called a meeting of his
employees. He announced the vacation schedule as he had
been requested to do by one of his employees some weeks
earlier. He also stated that employees with 25 years of
service would henceforth receive 5 weeks' vacation instead
of the 4 weeks to which they had previously been entitled. 10
He then informed the employees that he had just returned
from a business trip and that business was not good. He
explained that the Company had a tremendous inventory
worth $1.5 million that the cost of material had almost
doubled, that he owed the bank a million dollars, that he
was financially in trouble" and was afraid that he was
going bankrupt. He announced that it was possible that
some of the employees would be working less than 5 full
days 12 per week; that he would have to cut the work down
to 2 or 3 days a week and maybe he would be unable to
indicates that he heard of the union meeting on March 18, I conclude from
the quoted testimony that Katz learned of the union meeting on March 17.
Moreover, Katz indicated in his testimony that he was aware of the union
organizational campaign the Saturday before he left for New York and
demonstrated his concern by telling Leo Short to limit the breaks and keep
the employees busy. Having demonstrated his concern about the union
campaign, I find it unlikely that the news of the forthcoming meeting would
have been kept from him until the evening of March 18, as he seems to
indicate was the case elsewhere in his testimony.
i° Katz testified that only one or two employees would be affected by the
change in vacation benefits, most prominently Ralph Housel. No violation
is alleged in connection with this.
" Katz testified that he had spoken to his accountant 2 weeks previously
thus indicating the basis for his statement.
12 The employees prior to this time had been working a full 40-hour
week.
1104
SOMERSET SHIRT & PAJAMA COMPANY
open up again after vacation; that he might have to close
down.'3 He said that although he hoped that it would not
happen, if it did, he wanted them to understand that he
would do everything he could to keep them busy.14
On the evening of March 18 about 6:45 p.m. certain
employees began arriving at the Holiday Inn to attend the
meeting scheduled for 7 p.m. Zimmers was one of those
who arrived early. Whereas the other employees went
downstairs to the meeting room, Zimmers remained
temporarily in the lobby with one of the union organizers,
Gary Pokodner, in order to discuss union affairs. As they
sat in the lobby, facing each other, discussing the plant
meeting held earlier in the day, Pokodner was taking notes
on a book which had on its cover a large ILGWU label or
decal. At one point, Zimmers looked up past Pokodner,
and saw Katz and his secretary15 there in the lobby near
the couch upon which Pokodner was seated. Pokodner,
noticing a change in Zimmers' expression, asked her what
was wrong. Zimmers replied, "That's my boss. That's Mr.
Katz." Pokodner looked around and observed Katz who in
turn was watching Zimmers and Pokodner. Katz and
Zimmers looked at each other. Katz started towards
Zimmers, then turned around and went back to where he
had left his companion standing, about 10 or II feet from
where Zimmers was seated. At this time, Pokodner's
notebook with the ILGWU label was clearly visible.
I conclude from this incident that Katz saw Zimmers
with Pokodner, and having learned in advance that the
union meeting would take place that evening at the
Holiday Inn, determined by Zimmers' being in the
company of the union organizer that she must be one of the
more active union protagonists among his employees.
The meeting itself, which followed the incident in the
lobby of the Holiday Inn, was attended by approximately
13 employees including Nancy Logsdon, Pauline Morelli,
and, of course, Phyllis Zimmers. At the meeting the union
organizers passed out union authorization cards to be
distributed among other employees of Respondent and
advised those present as to the means of distribution.
Those charged with soliciting signatures were instructed to
return the signed authorization cards to Phyllis Zimmers,
Nancy Logsdon, or directly to the union organizers.
Following the March 18 union meeting, Logsdon, Zim-
mers, Geary, Morelli, and others solicited additional
signatures on union authorization cards. These were then
collected by Zimmers and Logsdon for return to the
Union.
On March 19, the morning after the union meeting, Katz
received another anonymous call from someone who
advised him that there had been a union meeting the night
13 Based on a composite of the testimony of witnesses Zimmers,
Simpson, Geary, Logsdon, and Katz.
1 Certain of General Counsel's witnesses testified that Katz had never
before called a meeting with employees to discuss financial problems with
them.
15 Both Katz and his secretary denied that this incident ever occurred.
Zimmers and Pokodner were emphatic in their insistence that the incident
did occur precisely as descnbed. I credit Zimmers and Pokodner except that
Baker's testimony was so convincing that I am forced to conclude that with
regard to her presence, it was a case of mistaken identity. Katz, however.
was there.
16 Logsdon's name may have been among those mentioned dunng this
phone call, Katz could not remember. In light of Katz' admission that he
before which had been attended by a number of trouble-
makers. The unknown individual then read off a list of four
or five names, including that of Zimmers.16
Between March 18 and March 25, certain of the
employees who had attended the March 18 meeting
continued to campaign and to solicit signatures for union
membership among Respondent's employees. On March
25, during the noon break, Zimmers engaged another
employee, Pam Burkett in conversation while the two were
in the restroom. During this conversation, Zimmers
discussed with Burkett the possibility of a union represen-
tation election and asked her to sign a union authorization
card. Burkett declined to sign the card, stating that she was
afraid. When Zimmers asked Burkett why she was afraid.
Burkett replied that she was afraid that employees Julia
Smith and Ruth Dickey 7 might find out, meaning,
presumably, that if Smith and Dickey found out, they
would be angry with her or might tell Katz. Zimmers
commented that Burkett did not have to be afraid of Smith
or Dickey but Burkett still refused to sign the card.
Zimmers then left after stating that she was not trying to
force Burkett to do anything that she did not want to do.t8
Burkett then returned to her machine. No one else
apparently witnessed this conversation although it was
testified to by both Zimmers and Burkett that Logsden
may have walked in and out while the conversation was in
progress.
Early in the afternoon, following the noon break, Ruth
Dickey had occasion, in the course of her work, to go to
where Burkett was stationed. While there, Burkett repeated
to Dickey her version of the conversation she had had
earlier with Zimmers. She informed Dickey that Zimmers
had asked her to sign a union card and that Dickey and
Julia Smith were being blamed for going to Mr. Katz, and
telling him that the employees were trying to start a union.
Dickey replied that she was unaware that she was being
blamed for telling Katz about the union activities of other
employees. She then returned to her machine. After a few
minutes, however, Dickey again approached Burkett and
asked her if she would care if Dickey advised Katz about
what Zimmers had allegedly said about her. Burkett replied
that she did not care if Dickey told Katz.
Shortly thereafter, Dickey advised Julia Smith about
what Burkett had told her. Smith then went to Burkett who
confirmed the story, particularly the fact that it was
Zimmers who had said that Smith and Dickey had
informed Katz about the union activities of other employ-
ees. Later that afternoon, Smith and Dickey noticed several
of the other employees including Burkett, Zimmers,
Logsdon, Geary, and Morelli gathered together in a group
received this call, his testimony to the effect that he did not suspect at this
time that Zimmers was involved with the Union, is rejected as incredible.
iT Burkett and Dickey are related and close friends.
18 According to the testimony of Burkett, after Zimmers asked her to
sign a card and she refused, Zimmers made the gratuitous statement. "Well.
I guess you know that Ruth Dickey and Julia Smith have gone to Mr. Katz
about this," after which Burkett stated. "Well, it really doesn't matter" and
then left. I credit Zimmers' version of the conversation. Zimmers struck me
as a very credible witness while Burkett's testimony was something less than
candid. However, granting agruendo that Zimmers did make the statement
ascribed to her by Burkett, the decision rendered herein would not thereby
be affected.
1105
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
around Zimmers, seemingly making fun of Dickey and
Smith and laughing at them. Dickey and Smith, apparently
uncomfortable about being laughed at, decided to tell Katz
that they were being accused of informing Katz about the
other employees' union activities. When Katz later came
down the aisle, both Dickey and Smith stopped him as he
was passing their work area. Smith thereupon advised Katz
that the other employees had been accusing Dickey and
herself of telling Katz about their involvement with the
Union. Katz then asked Smith who it was that had made
the accusation and Dickey supplied the name of Zimmers.
Katz then told Dickey and Smith to return to their
machines; that he would take care of the matter. Smith and
Dickey thereupon returned to their work stations.
About this time, Zimmers was walking back toward her
machine following the afternoon break. Katz called to her
to come over to where he was standing near Smith's desk.
When Zimmers reached the place where Katz was
standing, he asked her what was going on. He told her that
Smith and Dickey had said that she, Zimmers, had accused
them of carrying tales to him. Zimmers replied, "Well
didn't they?" and repeated the question several times. Katz
denied that they had "carried tales" although it is patently
clear that they had done so at least to the extent of telling
him of Zimmers' accusation. He then told her that she was
nothing but a troublemaker; 19 that she was causing trouble
in the factory and that he wanted the trouble stopped.
Zimmers then asked Katz what kind of trouble he was
talking about, to which Katz replied, "You are just causing
trouble, you are fired, get your stuff and get out." Zimmers
questioned Katz again, asking him what kind of trouble he
was talking about. Katz then said, "You go call your union,
and see if they can get you back."20 According to one
witness,2 Katz told Zimmers perhaps three times during
this conversation, while she sought some explanation, that
she should get her timecard and check out; that she was
fired.2 2
At that point. Julia Smith, who was sitting at her
machine nearby, said to Zimmers, "I taught you everything
you know. I trained you, and here you stabbed me in the
back."2 3 Zimmers replied, "I just don't understand what
you are talking about."2 4 Katz then reiterated, "Get your
stuff and get out, you are fired." He then flung out his arms
i9 Based on the credited testimony of Zimmers as supported by that of
Sandra Smith as well as Katz' admission that he might have called Zimmers
a troublemaker.
20 Katz admitted in his testimony that he may have told Zimmers to see
her union at the time of her discharge.
21 Sandra Smith.
22 This version of the conversation is credited over Katz' version wherein
he testified that he did not discharge Zimmers initially but did so only after
she was ordered several times to return to her work station and had refused
to do so. If, in fact, Katz did tell Zimmers to return to her machine. I find it
was for the purpose of getting her belongings in preparation for checking
out after being told she was fired. Katz' testimony to the effect that he called
Zimmers over only to find out what she had said about Ruth Dickey and
Julia Smith and to assure her that "they never carried tales" to him is
similarly rejected. My discrediting of Katz is based primarily on his
unimpressive demeanor while testifying in a manner which struck me as far
less than candid. Moreover, Katz' initial statement to the Unemployment
Compensation Board concerning his reasons for discharging Zimmers bears
little relationship to the actual events which transpired as reflected by the
record in the instant case. Whereas Katz advised the Unemployment
Compensation Board that Zimmers had been discharged following a violent
argument between Zimmers on the one hand and Smith and Dickey on the
and stated that he was going to "shut down the whole
plant." 25
At this point, Katz' secretary came up the aisle and as
she walked by Katz took her by the arm and said, "I've just
fired Phyllis. Get her card and take it into the office."
Zimmers, in accordance with Katz' order, went back to her
machine, pasted her tickets to her sheet in order to account
for her day's production, gathered her belongings and then
started for the office to punch out. Katz, in the meantime,
walked over to where Nancy Logsdon was working and
told Logsdon that he wanted to see her in his office at 4:15.
Logsdon asked why, defensively adding that she had not
done anything. Katz replied that he did not like big mouths
and if she didn't like it she could put her tickets on like her
friend and get out too. Logsdon, as noted above, had been
active in the organizational campaign, attended the union
meeting of March 18, and distributed authorization cards
at the plant during breaks and at lunchtime. One of the
employees to whom she had offered a card was Julia
Smith.26
Katz then went over to Morelli's machine and said,
"Morelli, what do you have in this?" Morelli replied,
"Nothing." Katz then asked, "Did you say Julia and Ruth
came running to me with everything?" Morelli replied,
"No, I didn't hear anybody say it." Katz said, "Well, you
are getting blamed for it, and I'm tired of all of the trouble
in the factory." Morelli rejoined, "Well, I'm getting tired of
getting blamed for everything." Katz then stated, "One
more rumor and out the door you go." Katz walked away.
Morelli, as noted above, had also been active in the
organizational campaign. She had signed a card, attended
the March 18 union meeting, and distributed authorization
cards.
At or about 4 p.m. Katz was standing near employee
Sandra Smith's machine talking, but apparently to no one
in particular. Sandra Smith looked at him. He then stated
that he was "Going to sharpen some cutting knives and cut
off some heads." She looked directly at him and Katz said,
"Did you hear me Sandy?" She replied that she had, and he
walked away.
At 4:15 p.m., at quitting time, Katz told Morelli that he
wanted to see her in his office to clear things up." 2 7 When
Morelli arrived at Katz' office Logsdon was already there.
other, the facts are that no such argument ever took place. Katz' reliance on
this imaginary violent argument shows a wanton disregard for the facts and
indicates an ulterior motive. Where Katz' testimony is supported by that of
other witnesses for Respondent and such testimony is inconsistent with that
of Zimmers and other witnesses for General Counsel, the testimony of the
former is rejected in favor of the latter.
3:' Smith's denial that she made this statement is discredited.
24 Additional remarks attributed to Zimmers during her brief conversa-
tion with Smith I do not find consequential.
25 1 find that this threat to close the plant occurred as vividly described in
Zimmers' testimony. Though unsupported by other testimony, I neverthe-
less credit Zimmers on this point. Katz' denial is rejected.
26 Though Smith could not recall precisely when it was that Logsdon
asked her to sign an authorization card. I find under the circumstances that
it had to be prior to Zimmers' termination since it would seem highly
unlikely that Logsdon would approach Smith after the events of that day.
Smith declared in her affidavit that she had been asked by Logsdon to sign
the card about a week before Zimmers' termination.
27 Katz testified that one of the several reasons why he called the meeting
with Morelli and Logsdon at this time was to discuss with them a report he
had received from an employee named Pero who told him that these
employees laughed at and made fun of him. Pero was not called to testify. I
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SOMERSET SHIRT & PAJAMA COMPANY
Katz advised Logsdon and Morelli that he never had any
trouble until he hired Zimmers. He stated that all she did
was complain from the first week that he hired her, though
not to him but to everybody else. He said that he wanted to
lay it on the line, that he knew that Zimmers was the
ringleader, and that Logsdon was involved. 28 He stated
that he wanted all of this talk stopped, that they (Logsdon
and Morelli) would have their union sue him, if they
wanted to. He added that the only reason he had hired
Logsdon was because neither she nor her husband had a
job at the time and complained that this was the way she
repaid him. Katz stated that he had never pushed her
before, but from that point on she would have to get her
production out, or she would be out the door too. Katz
then stated that he wanted it clearly understood that there
were to be no more problems. 29
Katz advised Logsdon and Morelli that he had received a
telephone call a week before from a man who told him
about the forthcoming union meeting. He told them that
the man had said that his wife worked at the factory. Katz
told Logsdon and Morelli that if he had chosen to do so, he
could have kept the union meeting from taking place. Then
Katz stated that he did not give a damn, that if the girls
wanted the Union, they could have it, but then they would
work by union rules. He stated that employees would not
be able to call in, that they would not be able to take off
work without a doctor's excuse.30 He stated further that if
the Union came in, the employees would all have to take
their breaks together, a requirement not in effect at the
time. Katz then asked Logsdon to leave so that he could
talk to Morelli in private. Logsdon left.
When Logsdon had left, Katz addressed Morelli. He told
her that the worst thing he could have done was to let her
back into the factory. He said that he had not needed her
but had made a place for her. He accused her of being
ungrateful. He then said that if the employees wanted a
union, they could have it, but they would only be working
2 or 3 days each week.31
He reiterated that employees, once the Union came in,
could no longer take off without a doctor's excuse. Katz
continued that he did not intend to borrow a million
dollars to keep the factory in business and stated, "You'll
be sorry, if you keep this up, is that clear? One more rumor,
and out the door you go." Morelli asked Katz if he
intended to let her explain if he heard a rumor about her or
if he would just fire her without permitting her to explain.
Katz replied that he had "ways of checking up." At that
point the discussion ended.
On March 30, a petition was filed by the Union to
represent the production and maintenance employees of
Respondent. On May 21, a plantwide meeting of employ-
reject, as incredible, this explanation as a reason for the meeting. Katz
testified that a second reason for the meeting concerned the Zimmers
argument because it was a "Disturbing thing in the factory to have this
commotion." I do credit this explanation as a reason for the meeting since
Zimmers was discussed at the meeting.
2" The description of this conversation is based on the testimony of all
three participants. Where Katz' testimony is inconsistent with that of
Logsdon and Morelli, however, the latter are credited.
2
9 Katz testified that by "problems" he meant that he did not want the
girls fighting among themselves. iHe did not explain this, however, to
Logsdon and Morelli.
Ao The procedure up to this time was for employees who were sick to
simply take off. No doctor's excuse was required.
ees was called at the end of the day by Katz. He told the
assembled employees that it was Ralph Housel's 65th
birthday and since he had been employed at Somerset Shirt
Company for 30 years, the Company was giving him a
$1,000 bond. Katz then announced that the employees
would receive a cost-of-living wage increase amounting to
7 percent, effective in July. He said that the Union would
probably call it an unfair labor practice but queried
rhetorically, "How could they when he was being so
generous?"
Effective July 12, all of Respondent's rank-and-file
employees received the 7-percent wage increase. According
to General Counsel's employee witnesses none of them
recalled ever receiving a wage increase, cost-of-living or
otherwise, prior to July 1976, other than when the
minimum wage legislation warranted such an increase. Nor
could they remember Katz ever calling a meeting of
employees to announce a wage increase prior to the May
21 meeting.
Although Respondent called several employee witnesses
to testify to other matters, none were called to offer
evidence to support Respondent's position that periodical-
ly across-the-board wage increases other than minimum
wage increases had been granted in the past. With regard
to past practice, Respondent relies primarily on the
testimony of Katz' secretary, payroll clerk, and bookkeep-
er, Emiline Baker, who has been employed by Respondent
since 1958. She testified with the aid of an exhibit which
she herself had prepared and which purports, in synoptic
form, to reflect the contents of Respondent's records,
showing the dates on which general wage increases had
been granted in the past and the dates on which minimum
wage increases became effective. The former type of
increase is indicated in percentages while the latter appears
in the document in dollars and cents. Baker testified to the
accuracy of the exhibit which was admitted over the
objection of both General Counsel and Charging Party,3 2
and stated that there have been general increases other
than minimum wage increases granted to Respondent's
employees at various times since 1971. In the past,
employees were notified of wage increases at meetings
called by Katz, usually twice each year, once around
vacation time and once around the holiday season. At
these meetings, according to Baker, Katz would discuss
various matters in addition to advising the employees as to
the effective date of the forthcoming wage increase, usually
several weeks after the announcement. Baker testified that
she did not always attend these meetings but did attend
some at which wage increases were announced, primarily
those held around vacation time. The exhibit offered and
the testimony of Baker in support of the exhibit indicate
31 Employees were working a 5-day week at the time. Katz' denial that he
made this statement is discredited in light of Morelli's credited testimony.
32 Respondent, following these objections, stated that books and records
were available to prove that the contents of the exhibit and the testimony of
Baker were accurate. Counsel for Charging Party and General Counsel
declined to avail themselves of the opportunity to examine the books and
records of Respondent though offered. Under the circumstances and after
reexamining my ruling, I consider the summary properly admitted and draw
no adverse inference from Respondent's failure to offer the onginal
documents as counsel for General Counsel requested in her brief. N. L R.B.
v. W.B Jones Lumber Company, Inc., 245 F.2d 388 (C.A. 9. 1957).
1107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that general wage increases and guaranteed (minimum)
wage increases were granted as follows:
Increase
11/29/71 . . 5%
2/19/72 ....
7/21/73 . . 7%
5/17/74 . . ..
1/10/75 ....
8/30/75 . . 5%
1/ 1/76 ....
7/12/76 . . 7%
Guaranteed
Wage
1.60
..... . 1.76
...... . 2.00
...... . . 2.10
...... . 2.30
In explication of the procedure following a general wage
increase, Baker testified that all general wage increases
granted in 1971, 1973, 1975, and 1976 resulted in the
employee receiving the percentage indicated over and
above her earnings for that pay period provided her
earnings were in excess of the minimum wage. If an
employee's earnings were less than the minimum wage, a
"make up" sum was added to that figure. Baker testified
that the procedure following the wage increase granted in
July 1976 was no different than in previous years.
With regard to previous wage increases, Katz testified
that he had granted four wage increases in the 5-year
period since 1971 and that in each case the planned wage
increase was discussed with his accountant prior to
implementation. 3 3 In these cases, Katz usually discussed
the possibility of a wage increase following the yearend
closing of the books. The final figures for the previous year
were then received sometime in March and the figures for
the first quarter of the new year, sometime in April.
Implementation of any general wage increase decided
upon would occur following the employees' vacation in
July,3 4 the announcement having been made prior thereto.
Katz thus testified that the 1976 announcement and
granting of the wage increase was a matter of historical
precedent. But inasmuch as the summary offered to
support Katz' testimony indicates the existence of no such
pattern, I reject Katz' testimony on this subject as untrue.
With regard to the 1976 decision to grant a general wage
increase Katz testified that he felt that a wage increase was
necessary because in 1975 there had been double-digit
inflation for part of the year which averaged out to about 7
percent for the entire year. He did not, however, grant the
wage increase in January 1976 because he did not yet have
his figures and perhaps could not afford to grant a wage
increase. He did not know until late February or early
March 1976 when he received a report from his accountant
whether or not he had lost or made a profit in 1976. When
33 The accountant was not called to testify.
34 Respondent's summary indicates no wage increase in 1971 until late
November; none in 1972: a wage increase in July 1973: none in 1974; and
finally a wage increase in August 1975 prior to the 1976 wage increase which
is the subject allegation in the instant case. I find that Katz testimony is not
sufficiently supported by the document to indicate a pattern of past vacation
wage increases.
No records were offered by Respondent to reflect on what basis Katz
first began to consider granting the wage increase.
Katz' accountant sometime in February advised him of the
rough or "pencilled" figures35 for the previous year, Katz
first began to consider granting a wage increase. He
testified that at the time he was unaware of the union
organizing campaign, which as noted above, was initiated
on or about February 11. Inasmuch as the union campaign
undertaken in early February included the open distribu-
tion of union literature and union authorization cards at
the plant parking lot, I cannot credit Katz' testimony that
he was unaware of its occurrence. Even if he were out of
town on February II11, as he testified, I cannot believe that
none of his employees, many of whom testified on his
behalf, would have advised him of the presence of the
Union, or the activity of the union adherents shortly
thereafter. I conclude that by late February or early
March, when Katz received the figures upon which he
testified he first began to consider granting the wage
increase, he was well aware of the presence of the Union
and of its organizing campaign. In any case, however, Katz
only began considering granting of a wage increase at this
time and had not yet determined positively to take such
action.
Katz testified in a contradictory manner as to when he
finally decided to grant the wage increase. At one point, he
testified that the wage increase was planned prior to the
filing of the petition for representation in March and that
the filing of the petition did not change his plan. He
testified, "We went ahead, because this is our plan, the fact
that they filed had no bearing on the case." Elsewhere,
however, Katz testified that it was in the third or fourth
week in April that he decided to give the wage increase of 7
percent. I believe the decision was made in April rather
than before the petition was filed because as Katz testified
in amplification, in or about the third week in April, he had
a second discussion with his accountant at which time he
was given the figures for the first quarter of 1976. Katz
explained that the figures for the first quarter are never
good since that is the slow period but in this case they
indicated that the Company had broken even, and this
pointed to a good year. Katz further testified, however, that
whether or not it was going to be a good year, he would
have had to give a wage increase in order to keep and
obtain help, although the first quarter report was a factor in
his decision.3 6
In addition to the inflation of 1975, and the need to
obtain and hold valuable employees, Respondent listed
several other reasons for granting wage increases at this
time including the fact that Social Security payments were
increasing, that he owed his employees a livelihood, and
that the cost of living was still rising. Katz denied that the
fact that the Union was organizing at the time had
anything to do with the raise. When asked why he did not
contact the Union to discuss the contemplated wage
increase, Katz did not state that he was unaware of the
36 There appears to be some discrepancy in Katz' testimony to the effect
that he could not decide to grant a wage increase in January because he
needed his accountant's report before deciding whether or not to grant an
increase, and his later testimony to the effect that it did not matter what the
reports were, whether or not the reports indicated a good or bad year, since
he would have had to grant a wage increase, in either case, in order to keep
and obtain help.
1108
SOMERSET SHIRT & PAJAMA COMPANY
presence of the Union at that time, for indeed he admitted
knowing of its presence on the scene long before the third
week in April. Rather, he stated that he did not advise the
Union of the wage increase because he did not recognize
the Union, nor have a contract with it. He also admitted
that when he made the announcement on May 21 of the
forthcoming wage increase, he may have stated that the
Union might consider the wage increase an unfair labor
practice, and that if, in fact, he made this remark, he did so
because the Union had not as yet been recognized as the
employees' bargaining agent and regardless of the presence
of the Union, the employees deserved the wage increase.
Katz added that, in any case, this had been the Respon-
dent's past practice.
From the totality of facts, it is apparent that Katz did not
formulate any wage increase for his employees until long
after he discovered that a union organizational campaign
was in progress, and that, in late April, he determined to
grant the wage increase in spite of, if not because of, the
Union.
POSITION OF THE PARTIES AND ANALYSIS AND
CONCLUSION
1. Termination of Phyllis Zimmers
General Counsel contends that Respondent terminated
Phyllis Zimmers because of her union or other concerted
activity whereas Respondent contends that Zimmers was
terminated for cause.
The above facts indicate that Zimmers was engaged in
union activity: thus, she overtly was offered and accepted
union propaganda and an authorization card in Respon-
dent's parking lot in view of a large number of individuals,
in one way or another, connected with the firm; she signed
the authorization card and mailed it to the Union the
following day; she was thereafter visited at her home by
agents of the Union who furnished her with additional
authorization cards for distribution among fellow workers;
she distributed these cards at Respondent's place of
business, during breaks or at lunch, obtained signatures
thereon and collected them; and she propagandized in
favor of the Union while distributing the authorization
cards. Zimmers' activities were relatively widespread. She
solicited, among others, employees who clearly, from their
testimony, where closely aligned with the sympathies of
their employer. Similarly, Zimmers participated in the
announcement, by word of mouth, of the March 18
Holiday Inn union meeting, attended that meeting, and
was seen at the Holiday Inn that evening by Katz, in the
company of a union business agent. That same evening
Zimmers obtained additional authorization cards upon
which she subsequently solicited or attempted to solicit
additional signatures from Respondent's employees. On
March 19, Katz was advised by means of an anonymous
phone call of the names of those who had attended the
union meeting of March 18, and Zimmers' name was
among those mentioned. From these facts it must be
concluded that Zimmers was not only heavily engaged in
37 Katz' preference for having his plant remain unorganized is fully
documented throughout the record.
union activity but that her activity was well known to
Respondent. I so find.
I further find that on March 25, when Smith and Dickey
reported to Katz that Zimmers had accused them of
carrying tales to him about their union activity, Katz was
already well aware of her roll in the organizing campaign. I
conclude that, already dissatisfied with Zimmers' roll as a
union advocate and organizers, he became further
incensed by their report that she had been pursuing a
course which would inevitably result in a further dichotom-
ization of his employees and called her over in order to set
the record straight. When Katz charged Zimmers with
accusing Smith and Dickey of carrying tales to him about
employees' union activities, Zimmers, I find, at first denied
making the accusation but then faced up to the more
immediate situation and questioned Katz in a semirhetori-
cal manner by asking him, "Well, didn't they, didn't
they?", meaning of course, that if they had not talked to
him about her union activities, including her statements
concerning those employees who might report such
activities to the boss, then how did the current conversation
between Katz and Zimmers ever arise. Katz, somewhat
upset with her to begin with, because of her union activities
in general, became even more upset during the conversa-
tion which ensued. For Zimmers was, in effect, challenging
Katz by first explicitly denying that she had made the
accusation initially attributed to her, then indicating that
Smith and Dickey had informed on her concerning the
matter at hand, and intimating that she, Zimmers, had a
perfect right, therefore, to accuse these employees of being
informers where, in fact, she had been reported by them to
management. Katz, at this point, told Zimmers that she
was fired for being a troublemaker. By the term "trouble-
maker," I find that Katz was accusing Zimmers of both
actively organizing for the Union and of accusing other
employees of being informers. I find also that Zimmers'
termination was founded on both these bases. Thus, I find,
had not Zimmers been reported as making the accusation
of "informer" against Smith and Dickey, the occasion for
the confrontation would not have occurred, at least not at
the time it did. However, once Katz forced the issue by
charging Zimmers with accusing Smith and Dickey of
being informers, the discussion got out of control and Katz
terminated Zimmers both for being a leading union activist
and for being the leader of the prounion faction among his
employees whom he suspected of accusing Smith and
Dickey of informing on union adherents. It is patently
clear that the termination of Zimmers for participating in
union activity is a violation of her Section 7 rights and of
Section 8(aX3) and (I) of the Act. However, I also find that
terminating Zimmers because she was suspected of accus-
ing Smith and Dickey of informing on union adherents is
similarly violative of the Act. For it has been my
experience that in the vast majority of organizing cam-
paigns where a plant the size of Somerset Shirt & Pajama
Company is involved, the employees will split their
allegiances, some in favor of union representation, some
against. When this occurs it is not infrequent that those
employees who are against union representation equate
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their attitudes to loyalty to management. Likewise, those in
favor of union representation often consider those employ-
ees who are not in sympathy with their cause to be
promanagement and therefore likely to report their
activities to management. In such cases, the union
adherents among the employees will seek to avoid
contacting suspected promanagement personnel and will
frequently warn each other to stay away from those
employees for fear of being reported. This scene is repeated
over and over in one organizing campaign after another
and must therefore be considered part and parcel of the
organizing scene. As such, the right of one employee to
warn another that a third is an informer or suspected
informer must be protected the same as his right to solicit
signatures or propagandize in favor of the union cause.
Katz' termination of Zimmers on suspicion that she had
accused fellow workers of informing on her and other
union adherents is therefore in violation of Section 8(a)(3).
I so find.
2. Threats of plant closure on March 18 and 25
General Counsel contends that during the meeting on
March 18 when Katz advised the employees that Respon-
dent was having financial difficulties, expressed fear of
bankruptcy, and stated that after vacation the plant might
have to close, Respondent engaged in an unlawful threat of
plant closure. General Counsel argues that since Respon-
dent admittedly had a good year in 1975, Katz' statement
was untrue, and since, according to General Counsel's
witnesses, he had never held a general meeting with
employees in the past to discuss financial matters, his sole
reason for holding the March 18 meeting was because of
the employees' union activities. But granting that Katz was
aware of the union activity of Respondent's employees at
the time of the speech, and that it seemed to him a
propitious time, in light of that activity, to advise the
employees of the financial plight of Respondent, the fact
remains that at no time did Katz, either during the meeting,
or before, even mention the Union, much less threaten to
close the plant because of its advent or because of the
activity of certain employees on its behalf. The mention of
the possible closing of the plant was made in the context
solely of business considerations including Katz' unsuc-
cessful business trip and the inventory buildup. In the
absence of any mention of the Union in connection with
Katz' statement that the plant might have to close and in
the further absence of any antiunion campaign by
Respondent up to that point in time, I find that the
statement concerning the possible shutdown was uttered in
a context unrelated to any union activity, and therefore did
not have a reasonable tendency to in any way restrain or
coerce Respondent's employees. Cf. Earl Fisher Manufac-
turing Company, 148 NLRB 1587 (1964). I therefore
recommend dismissal of this allegation.
On the other hand, on March 25, while Katz was in the
process of terminating Zimmers for participating in union
activity and voicing aloud his displeasure with certain
facets of that activity, he threw out his arms and stated that
he was going to shut down the whole plant. In the context
of this rather dramatic scene, I find Katz' threat to close
the plant violative of the Act for it was made in connection
with and because of Zimmers' activity as a protagonist for
the Union. Its effect was necessarily coercive in that it
clearly indicated the possible dire consequences which
would follow if such activity should continue.
3. March 25 threats to Logsdon, Morelli, and
Sandra Smith
General Counsel contends that when Katz, immediately
after discharging Zimmers, went over to Logsdon, called
her a big mouth, told her he wanted to see her after work,
and stated that if she didn't like it she could get out, his
action constituted a threat of discharge. Similarly, General
Counsel contends that immediately thereafter when Katz
demanded of Morelli whether she too, like Zimmers, had
been accusing Smith and Dickey of informing to Katz, and
after Morelli denied complicity and Katz stated, "One
more rumor, and out the door you go," Katz, in this
instance too, was threatening Morrelli with discharge.
In both instances, I agree that Katz was threatening both
Logsdon and Morelli with discharge. The timing of his
verbal attacks on these two employees, immediately
following his discharge of Zimmers, places them in the res
gestae of termination which in turn, provides an explana-
tion as to why they occurred. The record clearly indicates
that Zimmers, Logsdon, and Morelli were the three most
active union adherents. Although there is no indication
that either of the latter two had made any remarks
concerning Smith and Dickey informing on their activities,
Katz, having become emotionally involved as a partisan of
Smith and Dickey is against the prounion faction, made a
beeline for Logsdon and Morelli, called the former a
loudmouth, presumably for talking about Smith and
Dickey, and threatened the latter with discharge if he heard
one more rumor abour her. In the context of the entire
congeries of events, it is not at all certain from the record
whether Katz intended to threaten Logsdon and Morelli
because of their general activity on behalf of the Union or
their suspected participation with Zimmers in the prounion
factionalism which manifested itself in the reported
accusations made against Smith and Dickey. In either case,
Katz' action clearly amounted to harassment of these two
employees whereby he overtly joined forces with those
employees aligned against representation, pronounced
himself their protector, terminated one of their prounion
antagonists, and threatened two others with similar
treatment. By so doing I find that Respondent, through
Katz, effectively restrained and coerced its employees in
the rights guaranteed them by Section 7 of the Act and
thereby violated Section 8(a)(1). Similarly, I find that Katz'
statement to Sandra Smith that he was "Going to sharpen
some cutting knives and cut off some heads" was also a
threat of reprisal against the prounion employees.
4. The creation of the impression of surveillance,
promulgation of the no-solicitation rule, and
further threats
General Counsel contends that at 4:15 p.m. when Katz
met with Logsdon and Morelli in his office and told them
that he had never had any trouble until he hired Zimmers,
that all she did was complain from the first week that he
1110
SOMERSET SHIRT & PAJAMA COMPANY
hired her, and that he knew she was the ringleader and that
Logsdon was involved, he thereby created the impression
that their activities and those of other union activists were
under surveillance. Inasmuch as the three people with
whom he spoke that day were the three principal union
activists, and Zimmers was in fact the most active, it
appears patently clear that Katz' discussion with Logsdon
and Morelli concerned their union activities, that when he
called Zimmers the "ringleader" he was referring to her
leadership in the union organizational campaign, and
finally, when he stated that he "wanted all of this talk
stopped," he was referring to their union activities
including but not limited3 8 to the factional problems
concerning which of the employees could be trusted and
which employees were informers. His statement to the
effect that they could have their union sue him convinces
me that he was aware that he was treading on dangerous
ground in forbidding Morelli and Logsdon from exercising
their rights under the Act but nevertheless chose to restrain
them from doing so.
In accordance with the contention of General Counsel, I
find that under the circumstances described above Katz'
statement that he knew that Zimmers was the ringleader
and that Logsdon was involved was calculated to give them
the impression that their union activities were under
surveillance. Silvercup Bakers, A Division of Ranger Bakers,
Inc., 222 NLRB 828 (1976). Katz' later statement to
Morelli that he had "ways of checking up" is conclusive. I
further find that in the context of the entire conversation
which occurred, with the backdrop of the events of the
previous few hours, Katz' declaration that he wanted "all
of this talk stopped" was, in effect, a proscription against
his employees exercise of their rights as guaranteed in
Section 7 of the Act and is therefore violative of Section
8(a)(1). Thermo Electric Co. Inc., 222 NLRB 358 (1976).
I also find that Katz violated Section 8(a)(l) by stating
during these conversations that if the Union was brought
into the plant employees would no longer be able to call in
sick, but would need a doctor's excuse; that employees
would all have to take their breaks at the same time; and
that they would be working only 2 or 3 days per week since
such statements were clearly threats of actions to be
implemented when and if a union came in.
5. The announcement and granting of the wage
increase
General Counsel contends that the wage increase
announced on May 21 and granted on July 12 was
designed to dissuade Respondent's employees from becom-
ing or remaining members of the Union or giving the
Union assistance or support. Respondent counters that the
wage increase was lawfully motivated.
As noted above, I have found, contrary to the testimony
of Respondent's witnesses, that the record contains
insufficient evidence to support its contention that a
pattern historically existed whereby Respondent granted
38 I find that Katz was seeking to stifle talk about the Union in general
rather than merely limiting the factional squabbling because there is nothing
in the record to prove that either Logsdon or Morelli had accused Dickey
and Smith of informing whereas the record is replete with evidence proving
their widespread union involvement. In any case, however, since it was Katz
periodic wage increases each year following vacation and
that announcements of forthcoming wage increases were
made prior to each vacation. In reaching such a conclusion
I rely on the testimony of General Counsel's witnesses that
they could not recall either the announcement or the
granting of such wage increases; on the failure of
Respondent to support its contention through the testimo-
ny of rank-and-file employee witnesses; and on the fEct
that Katz' testimony was not supported by the exhibit
offered for that purpose. Similarly, I find Katz' self-serving
testimony concerning his reasons for announcing and
granting the 1976 wage increase not worthy of crediting.
I have found, in accordance with Katz' own admission,
that the final decision to grant the wage increase was made
in the third or fourth week in April, long after the union
organizational campaign was in full swing, after the
petition had been filed, and after Katz had indicated
through the commission of the unfair labor practices
enumerated above that he was desirous of keeping the
Union out even at the risk of committing violations of the
Act. In the absence of a historical pattern of announcing
and granting such wage increases in the past, the timing of
the announcement and of the granting of wage increases
during the Union's campaign becomes of overwhelming
importance. In reliance upon these factors I find that the
promise and granting of the wage increase was made for
the purpose of undermining the Union's organizational
campaign in 1976. For as stated by the Board:
In determining whether solicitation of grievances
and granting of benefits is a violation of Section 8(a)( 1)
of the Act, the Board has traditionally looked to the
timing of knowledge of the Union campaign and the
granting of benefits. When the timing of benefits
coincides with the origination of employee union
activity, then, absent an affirmative showing of some
legitimate business reason for the timing, it is not
unreasonable to draw the inference of improper
motivation and improper interference with employee
freedom of choice. Litton Dental Products Division of
Litton Industrial Products, Inc., 221 NLRB 700, 701
(1975).
In accordance with the tenet laid down by the cited case,
and in light of the surrounding circumstances, already
discussed, I find that the announcement of the wage
increase on May 21 and the granting of the same on July 12
were violative of Section 8(aXl) for as found by the
Supreme Court:
The danger inherent in well-timed increases in
benefits is the suggestion of a fist inside the velvet
glove. Employees are not likely to miss the inference
that the source of benefits now conferred is also the
source from which future benefits must flow and which
may dry up if it is not obliged. N.LRB. v. Exchange
Parts. Co., 375 U.S. 405, 409 (1964).
who chose to enter into the thorny area of forbidding certain types of union
activity, it was incumbent upon him to specifically delineate the areas upon
which he was expostulating. His failure to do so. of necessity, would leave
his employees with doubts as to what he was forbidding them to do This
clearly infringes upon their rights under Sec. 7
1111
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In summary, I conclude that Respondent violated
Section 8(a)(3) and (1) by terminating Phyllis M. Zimmers,
its employee, and failing and refusing to reinstate her
because of her activity on behalf of the International
Ladies' Garment Workers' Union. Local Union No. 445,
AFL-CIO. I further conclude that Respondent has
violated Section 8(a)(1) of the National Labor Relations
Act in the respects specifically detailed above.
CONCLUSIONS OF LAW
1. Somerset Shirt & Pajama Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging employee Phyllis Zimmers and
refusing thereafter to reinstate her because she engaged in
union activities, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
4. By threatening employees with termination, a de-
crease in working hours, more onerous working conditions,
and plant closure because they engaged in union activities;
by creating among its employees the impression of
surveillance; by obstructing employees in their rights to
freely engage in union organizational activity including
free discussion thereof; and by announcing and granting
wage increases in order to dissuade employees from
engaging in union activities, Respondent has interfered
with its employees' Section 7 rights as set forth in the Act
and has thereby violated Section 8(a)(l).
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY 3 9
Having found that Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
Having found that Phyllis M. Zimmers was discriminato-
rily discharged, I shall recommend that Respondent be
required to offer her full and immediate reinstatement,
with backpay to be computed in accordance with F. W.
Woolworth Company, 90 NLRB 289 (1950), with 6 percent
per annum interest in accordance with Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
39 Charging Party's request that Respondent be assessed attorney's fees.
litigation costs, and excess organizational costs is denied inasmuch as
Respondent's defense, in my opinion, is not clearly frivolous within the
meaning of Heck's Inc., 215 NLRB 765 (1974).
4o In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
ORDER40
The Respondent, Somerset Shirt & Pajama Company,
Somerset, Pennsylvania, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening employees with termination, a decrease
in working hours, more onerous working conditions, and
plant closure because they engaged in union activities.
(b) Creating the impression of keeping under surveillance
the union activities of employees.
(c) Obstructing or inhibiting employees in the exercise of
their rights to freely engage in union organizational activity
including free discussion thereof.
(d) Announcing or granting wage increases in order to
dissuade employees from engaging in union activities.
(e) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment or
any term of condition of employment in order to
discourage membership in or activities on behalf of
International Ladies' Garment Workers' Union, Local
Union No. 445, AFL-CIO.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which I find
necessary to effectuate the purposes of the Act:
(a) Offer immediate and full reinstatement to Phyllis M.
Zimmers to her former job or, if that job is no longer
available, to a substantially equivalent position, without
prejudice to her seniority and other rights and privileges,
and make her whole for any loss of pay or other
compensation she may have suffered by reason of the
discrimination against her in the manner set forth in that
portion of this Decision entitled "The Remedy."
(b) 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 all records necessary to analyze and
determine the amount of backpay due under the terms of
this Order.
(c) Post at its plant in Somerset, Pennsylvania, copies of
the attached notice marked "Appendix." 4 1 Copies of said
notice, on forms provided by the Regional Director for
Region 6, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Responable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
41 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
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SOMERSET SHIRT & PAJAMA COMPANY
(d) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing in which the Company, the Union and
the General Counsel of the National Labor Relations
Board participated and offered evidence, it has been found
that we violated the Act. We have been ordered to post this
notice and to abide by what we say in this notice.
WE WILL NOT interfere with, restrain, or coerce
employees in the exercise of their rights guaranteed
them by Section 7 of the National Labor Relations Act,
as amended, by threatening them because of their
union activity.
WE WILL NOT create the impression of keeping under
surveillance the union activities of our employees.
WE WILL NOT obstruct or inhibit employees in the
exercise of their rights to freely engage in union
organizational activity including free discussion there-
of.
WE WILL NOT announce or grant wage increases in
order to dissuade our employees from engaging in
union activities.
WE WILL NOT discharge or otherwise discriminate
against any employee because he or she has joined or
supported a union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed them by Section 7 of the Act.
WE WILL offer Phyllis M. Zimmers immediate and
fall reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her former rights and privileges,
and make her whole for any loss of earnings she may
have suffered.
SOMERSET SHIRT & PAJAMA
COMPANY
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