The Kramer Co.

National Labor Relations Board - Board Decisions

Feb 20, 1941

29 N.L.R.B. 921 (N.L.R.B. 1941)

In the'Matter of Louis KRAMER, HENRY KRAMER AND HILDA KRAMER,
TRADING AS THE KRAMER COMPANY and INTERNATIONAL LADIES'
GARMENT WORKERS" UNION
Case No. C-1619.-Decided February 20, 1941
Jurisdiction : garment manufacturing industry.
Unfair Labor Practices
I
Interference, Restraint, and Coercion : charges of, dismissed.
Discrimination : lay off, charges of, dismissed.
Filing Charges Under the Act: discharging employee because she had filed
charges under the Act. _
The prohibitions of the statute against discrimination for filing charges
is effective irrespective of whether the employer believes the enarges to
be false or whether the ultimate proof sustains their validity.
Remedial Orders : reinstatement and back pay awarded.
Mr. Samuel M. Spencer, for the Board.
Mr. Joseph Sherbow, of Baltimore, Md., for the Company.
Mr. Jacob J. Edelman, of Baltimore, Md., for the Union.
Miss Charlotte Anschuetz, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Ladies' Garment Workers' Union, herein called the Union, the Na-
tional Labor Relations Board, herein called the, Board, by the
Regional Director for the Fifth Region (Baltimore, Maryland),
issued its - complaint dated April 12, 1940, against Louis Kramer,
Henry Kramer, and Hilda Kramer trading as The Kramer Com-
pany, Baltimore, Maryland, herein called the respondents, alleging
that the respondents had engaged in and were engaging in unfair
labor practices affecting commerce, within the meaning of Section 8
(1) and (3),and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. Copies of the com-
plaint and notice of hearing thereon were duly served upon the
respondents and the Union.
29 N. L. R. B., No. 135.
921
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices, the complaint alleged
in substance (1) that on or about November 14, 1939, the respondents
discharged and thereafter refused to reinstate Emma Silvick be-
cause she joined and assisted the Union and engaged in concerted
activities with other employees for the purposes of collective bar-
gaining and other mutual aid and protection; (2) that on or about
November 14, 1939, and February 6, 1940, the respondents discrimi-
natorily laid off Elizabeth Shaw because she joined and assisted the
Union, and engaged in concerted activities with other employees for
the 'purposes of collective bargaining and other mutual aid and pro-
tection; and (3) that by these and other acts, and by urging, per-
suading, and, warning its employees to refrain from becoming or
remaining members of 'the Union and threatening them with dis-
charge and other reprisals if they became or remained members
thereof, the respondents interfered with, restrained, and coerced their
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
On April 22, 1940, the respondents filed an answer to the com-
plaint which admitted the interstate character of their business,
denied that they had discharged Emma Silvick or laid off Elizabeth
Shaw on account of union activity or that they had engaged in any
unfair labor practices, and alleged that Silvick was discharged for
inefficiency and that Shaw was now employed at the plant.
Pursuant to notice, a hearing was held in Baltimore, Maryland,
on May, 16, 17, and 18, 1940, before Albert L. Lohm, the Trial Ex-
aminer duly designated by the-Board. The Board and the respond-
ents were represented by counsel and the Union by duly authorized
representative; and all participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties.
At the conclusion of the Board's case, the Trial Examiner granted a
motion of the Board's attorney to amend the pleadings to conform
to the proof, and denied a motion by the respondents to dismiss the
complaint for lack of evidence. These rulings are hereby affirmed.
Subsequently, the respondents, the Union, and counsel for the Board
agreed to a stipulation stating, among other things, that : "The
company has not discriminated, is not now discriminating, and will
not hereafter discriminate against Elizabeth Shaw by reason of
union membership or union activity." On the basis of this stipula-
tion the Board's attorney moved to amend the complaint by dis-
missing that part of the complaint relating to the case of Shaw.
The Trial Examiner granted -this motion, and it is hereby affirmed.
Subsequently, the Board's attorney moved to amend the complaint
to include an allegation that the respondents had engaged in unfair
THE KRAMER COMPAATY 923
labor practices within the meaning of Section 8 (4) of the Act with
respect to Silvick. The Trial Examiner denied this motion. During
the course of the hearing, the Trial Examiner rilade numerous other
rulings on motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.,
On June 18, 1940, the Board, acting pursuant to Article II, Section
36, of National Labor Relations Board Rules and Regulations-Series
2, as amended, transferred the proceeding to and continued it before
the Board for action pursuant to Article II, Section 37, of said Rules
and' Regulations, directed that no Intermediate Report be issued, that
Proposed Findings of Fact, Proposed Conclusions of Law, and Pro-
posed Order be issued, and that the parties herein should have the
right, within twenty (20) days from the date of the Proposed Findings
of Fact, Proposed Conclusions of Law, and Proposed Order to file
exceptions thereto and to request oral argument before the Board, and
should- have the right within thirty (30) days from the date of the
Proposed Findings of Fact, Proposed Conclusions of Law and Pro-
posed Order to file a brief with the Board.
Pursuant to an amended charge filed May 29, 1940, alleging that
the respondents had engaged in and were engaging in unfair labor
practices within the meaning of Section 8 (1), (3), and (4) of the
At, the Board, acting pursuant to Section 10 (b) of the Act and
Article II, Section 7, of National Labor Relations Board Rules and
Regulations-Series 2, as amended, did on September 19, 1940, issue and
cause to be served upon the parties its amendment to complaint pur-
suant to which the complaint was amended to allege that on or about
December 5, 1939, and thereafter, the respondents refused and still
refuse to reinstate Emma Silvick not only because of her union mem-
bership and activity but for the further reason that she filed or caused
to be filed charges under the Act thereby discriminating against her
and thus engaging in unfair labor practices within the meaning of
Section 8 (1), (3), and (4) of the Act. At the time of the service
of said amendment to complaint notice was given to the respondents
that they would be allowed ten (10) days from receipt of such notice
in which to file with the Board in Washington, D. C., an answer to the
complaint as thus amended; and that with such answer it might sub-
' mit a request for hearing on the complaint as thus amended. On
September 24, 1940, the respondents notified the Board that they would
refrain from filing a further answer and from requesting a hearing
on the understanding that the denial in the original answer be con-
strued as a denial of each of the paragraphs of the amended complaint.
No additional hearing was held.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 20, 1940, the Board issued its Proposed Findings
of Fact, Proposed Conclusions of Law, and Proposed Order in these
proceedings, copies of which were duly served upon all parties. On
December 4; 1940, the respondents filed exceptions to the Proposed
Findings of Fact, Proposed Conclusions of Law, and Proposed Order
and requested oral argument before the Board. Pursuant to notice,
oral argument was held on January 7, 1941, before the Board in
Washington, D. C. The respondents and the Union were represented
by counsel and participated in the argument. The Board has con-
sidered the exceptions of the respondents to the Proposed Findings of
Fact, Proposed Conclusions of Law, and Proposed Order, and in so far
as they are inconsistent with the findings, conclusions, and order set
forth below, finds no merit in them. I -
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The respondents, Louis Kramer, Henry Kramer, and Hilda Kramer,
constitute a partnership trading as The Kramer Company, and are
engaged in the manufacture and sale of blouses and women's sports-
wear-in Baltimore, Maryland. During 1939 the respondents used raw
materials, consisting principally of cotton piece goods, valued at ap-
proximately $100,000. Almost all such raw materials were purchased
outside of Maryland. During the same period, the respondents manu-
factured approximately 12,000 dozen blouses and ladies' sportswear
articles, of which about 90 per cent, valued at approximately $300,000,
were sold to customers located outside of Maryland. The respond-
ents admit, for the purpose of this proceeding, that they are engaged
fn interstate commerce within the meaning of the Act.
II. TIIE ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union is a labor organiza-
tion affiliated with the American Federation of Labor, which admits
to membership employees of the respondent.'
III. THE UNFAIR LABOR PRACTICES
A. Alleged interference, restraint, and coercion
The complaint alleged that the respondents 'urged, persuaded, and
warned their employees to refrain from becoming or remaining mem-
' We take Judicial notice of the fact that since the hearing in this case the, Union has
reafliated itself with the American Federation of Labor.
THE KRAMER COMPANY 925
hers of, the Union, and threatened such employees with discharge and
other reprisals if they became or remained members of said union.
The first union activity among the respondents' employees dis-'
closed by the record occurred in 1934, when the respondents' four
cutters joined the Union and participated in a strike. In termina-
tion of the strike, the respondents signed an agreement with the
Union. Approximately, a year Pater the cutters resigned from the
Union. From then until 1939 there were sporadic attempts by the
Union to organize the respondents' employees, none of which suc-
ceeded. In August 1939 the Union conferred with two employees
at their request concerning the need for organization, and subse-
quently intensified its efforts at organization. Organizers were as-
signed to the respondents' plant. They distributed literature, includ-
ing the Union's semi-monthly paper "Justice" and the monthly "Sew-
Sew," to the employees as they departed from work; made personal
calls at employees' homes; and held union meetings. Approximately
40 production workers out of the estimated number of 85 signed
application cards.
In the middle of October 1939 employees began to resign from the
Union-both orally and by letter. Shortly after October 20, 1939,
the Union received a group letter of resignation containing 10 signa-
tures, and about 10 days later a similar letter from Margaret Dukes,
an employee in the pressing department, signed by her and four other
employees. The Union contended that these resignations were the-
result of a dramatic denunciation of the Union made by Florence
McCormick, a sewing-department operator, to all the respondents'
employees at a meeting held in the plant at noontime on October 20;
that this speech was motivated by,the respondents, and that it con-
cerned a letter revealing the names of the members of the Union
allegedly sent by the Union to Louis Kramer, senior partner, and
shown by him to McCormick.- It is undisputed that McCormick
made a speech as the Union contends; and that at the very least the
speech denounced the Union for deceiving the employees and dis-
closing the identity of members' names to each other. The respond-
ents deny, however, that McCormick referred to a letter in her
speech or that they ever received such a letter from the Union. The
Union denied sending a letter revealing the names of-employees who
were members. Four employees, however, Emma Silvick, Elizabeth
Shaw, Hattie Westcott, and Beatrice Feingold,2 testified that Mc-
Cormick mentioned such a letter. In addition, the Union's conten-
tion as to the contents of the speech and the cause of the resignations
was affirmed by the testimony of Israel Zimmerman, an organizer
2 Wescott and Feingold were sewing-department employees who were hired in September
1939 and laid off the following month.
926 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
for the Union, who stated that, although the written resignations
contained no. explanation, many girls had told him orally that they
had resigned because of what they had learned from McCormick'=
discussion of the letter sent to the respondents revealing the names of
union members. In support of the allegation that McCormick did
not mention a letter revealing union members' names there is testi-
mony of four other employees, Bertha Barlow, Ida Steelman, Helen
Grabowski, and Helen Kelly, which is corroborated by Marie Knauff,
known as "Miss Marie," forelady of the pressing department, and by
McCormick. These latter four employees were among those named
by Zimmerman as having resigned and having given explanations of
the type alleged; they denied this and gave other reasons for their
resignations.3 No employee testified in support of Zimmerman's
testimony already related, or of his further testimony that subse-
quently nine employees withdrew their resignations and stated orally
to him that they had resigned' only because of the hysteria after Mc-
Cormick's speech. We find that the evidence is insufficient to sustain
the Union's allegation that McCormick discussed sucha letter.
Both McCormick and the respondents denied that either Kramer or
any other supervisory employee had activated her talk. She claims
to have been motivated solely by the fact that the Union had not only
broken its promise to keep each member's identity secret from the other
members,4 but had placed her in what she termed the position of an
-organizer by naming her as a person to whom signed application cards
could be turned over, and had refused to return her application card to
her the evening previous to her talk. The only testimony adduced to
prove that the respondents were involved was that of Westcott, who
alleged that she saw McCormick speaking to Kramer and. Elsie Kees
Grove, forelady of the sewing department, the morning prior to the
meeting. Grove admitted this but stated that while she did not recall
what their discussion was about, it did not concern the Union. The
record shows also that McCormick spoke to Kramer that morning in
the presence of Brodsky, the production manager. All three agreed
that she said in substance to Kramer : "I am very sorry but I have to
confess to you, that I signed with the Union, but I will get out" and
that Kramer answered, "Miss McCormick, you are old enough to know
what you should do, I cannot tell you what to do. I have nothing
8 One said she felt they "were doing Mr. Kramer an injustice ;" another, that she was
"doing a sneaky trick to Mr. Kramer" ; the third, that she "did not seem to understand
what it was all about," had signed because the union organizer told her "it was all
right with Mr. Kramer and all of the girls had signed," and later "realized it wasn't
so"; and the fourth, "because the Union was a terrible disturbance among the employees"
* Her testimony to this effect is weakened, however, by her admission that she and other
employees of the respondents attended several union meetings and signed application cards
in the presence of each other McCormick admitted further that when she signed such
a card at a meeting taking place about October 17, 1939, only 3 days before her talk, she
was signing for the second time, and in the presence of 30 to 35 people
THE KRAMER COMPANY 927
to do with it." ' Itraxner and Brodsky denied having any knowledge of
the meeting at which McCormick spoke and denied that they were in
any way responsible for it. Grove admitted that McCormick had
asked her for permission to speak, and that she absented herself as
requested; she confessed also that she suspected the Union was con-
cerned.' While the evidence does not clearly depict the causes for
McCormick's speech, we find that there is no proof that any of the
respondent's officers or supervisory employees was a motivating factor.
It was testified at the hearing that a number of anti-union statements
were made by the respondents' officers and supervisory employees.
Feingold stated that immediately after the McCormick meeting she
overheard Grove say to Kelly that "the union is licked; they don't
need the ,union." This was denied by both Kelly and Grove. Silvick
testified that a few days thereafter Forelady Grove brought her a
garment to adjust during working hours, and stated while waiting,
"Emma, why are, you so interested in trying to play such a trick on
Mr. Kramer?" Silvick said she did not know what was meant, and,
.according to Silvick, Grove continued, "Why, you are the one that is
talking all this Union. Well, if that union trash don't leave my girls
alone, I will go up and clean them out." At about the same time,
Silvick testified, Miss Marie told her that if she knew what was good
for her she would leave the union alone: "One time . .. the union
tried to come in the shop and Mr. Kramer found out who the girl was
that started it, and he laid her off that she could never get a job no place
else." Both Grove and Miss Marie denied having made the statements
attributed to them. Westcott testified that some time in October
Grove was about to discharge her for bad work, but reconsidered and
gave her work when Westcott asked whether the Union was at fault.`'
Upon cross-examination Westcott recalled also that Grove had told
her to be "careful" to whom she spoke and that she had overheard
Grove say to an employee that the Union was "just a bunch of C. I. 0,
people and they were Reds; they were radicals." Grove denied these
assertions.
In addition to these anti-union statements, Catherine Unger, union
organizer, alleged that whenever she distributed literature outside
of the respondents' plant Grove stood in front of the plant and
watched who took papers. This was denied by Grove, who asserted
she merely drove home every night with McCormick and Miss Marie,
and stood there just long enough for them to join her. McCormick
and Miss Marie corroborated this. Unger alleged that on one occa-
6 The record does not disclose , however, whether or not she expected the meeting to be
anti -union.
0 Westcott was, however , laid off shortly thereafter
928 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
lion when she attempted to give Grove a paper, Grove stated, "I
don't need that," and that upon another occasion early in December
1939, as she attempted to hand an employee a paper, Grove interfered,
saying, "Don't take those, dear, they don't do any good." 7 Grove
denied this also. While Unger asserted that she knew the address
(but not the name) of the girl to whom the second remark had been
made, and that another organizer had overheard it, no further testi-
money was offered. A few days later, Unger alleged, Grove came
out and while brushing off her clothes said, "Oh, we make so much
money in this shop we can afford good clothes. We don't have to
belong to any union." This statement was corroborated by Verna
May Kroeger, who testified that she heard Grove say, "We don't
care how we dress, we have plenty of money," but who said nothing
about the alleged further statement, "We don't have to belong to
any union." Grove denied this statement also. No showing is made
that the alleged statement was made to employees or in the presence
of employees of the respondents.
A few weeks latex' another incident was alleged to have occurred
during distribution of union literature. Kramer was alleged by
Unger to have asked the nature of the paper being distributed one
night, and upon being told it was the union paper, said, "Oh no,
that is one of them Russian papers." This was corroborated by
Kroeger and denied by Kramer. An additional anti-union state-
ment was allegedly made by Miss Marie at this time. - Shaw testi-
fied that after she was reemployed subsequent to her November 14,
1939, lay-off, she was asked by Miss Marie, "Have you got enough
of that union stuff ?" This, too, was denied.
Kramer testified that he had given specific instructions to his
supervisory employees not to discuss union activities with any
employee and to be strictly neutral. Both Grove and Miss Marie
testified that they had followed his instructions, and had at no time
intimated to an employee what course to follow with respect to the
Union. There is a conflict in the testimony as to whether the
respondents' officials and supervisory employees made the statements
attributed to them by the Board's witnesses. In resolving these con-
flicts we note that the denials made by the respondents' witnesses were
in many instances corroborated; that the testimony of Board wit-
nesses in many instances was -not corroborated, although such cor-
roborative evidence might have been produced ; that some statements
were first produced on cross-examination; and that the Board entered
into a stipulation that there had been no discrimination in regard to
* There was introduced in evidence a sheet of a notebook containing this and the fol-
lowing statement , which Unger identified as memoranda made by her at the time.
THE KRAMER COMPANY 929
Shaw. In view of the foregoing , we find, on the basis of the entire
record that the alleged statements were not made.
We find that the allegations of the complaint that the respondents
urged, persuaded , and warned their employees to refrain from becom-
ing,or remaining members of the Union and threatened said em-
ployees with discharge and other reprisals if they became or remained
members of the Union, are not sustained by the evidence. We shall
accordingly order that such allegations be dismissed.
B. Discrimination against Emma Silvick
The complaint, as amended, alleged that Emma Silvick was dis-
charged on or about November 14, 1939, and thereafter refused em-
ployment because she joined and assisted the Union ; and that on or
about December 5, 1939, and thereafter , she was refused reinstate-
ment for the additional reason that she filed or caused to be filed
charges under the Act. _
Silvick's first employment with the respondents was around 1937.
From that time to February 1939, when she claims to have become
a "steady employee ," she worked intermittently , subject to a number
of seasonal lay-offs. Except for 2 weeks in July , she then worked
steadily until November 14, 1939. In September 1939 she designated
the Union as her bargaining agent by signing a membership applica-
tion card. She immediately became active in soliciting memberships
among her fellow employees by speaking to them at the plant, and
by visiting them at their homes, frequently in the company of paid
union organizers . According to Zimmerman , she was the only em-
ployee of the respondents who performed like services for the Union.
On November 14, 1939, Miss Marie informed Silvick and Elizabeth
Shaw, likewise an employee in the pressing department, that there
was no work, that she could not predict when she would need them,
but that she would notify them when work was available. On Novem-
ber 17, '1939, Silvick and Shaw returned together to the plant, went'
to the second floor of the building where the pressing room -was still
located, and talked to Miss Marie and Joseph L. Brodsky, the produc-
tion manager. They were told again that there was no work but that
they would be called as soon as "things would start." Shaw testi-
fied, however , that on this occasion she saw Betty Hanlon, Mar-
garet Sullivan , and Emily Benton, all with less seniority than she
and Silvick had, working in their stead ; Silvick claimed to have seen
Hanlon and Benton. Approximately 10 days later when they returned
again to the plant , the elevator girl prevented their going to the second
floor, saying she had orders not to take them up. Brodsky came down
and talked to them in the hall. He reiterated that there was no work.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Silvick and Shaw, Silvick then asked why other girls
were working in their stead, and he said : "All I can say is, you should
look for another job." To her further question, "In other words,
I am fired?" he answered in the affirmative, and he answered in like
manner when she asked whether it was the result of her union activity.
They testified further that Shaw then asked him why he was "doing"
this to her, and he answered, "Because I heard you signed a union
card and you were trying to get other persons to sign." 8
Brodsky denied these assertions, and declared that Silvick sug-
gested: "Well, you know, I could get another job," to which he re-
plied that she should take one if she could get it, and that she would
be notified when there was work at the respondents' plant. He tes-
tified that this was substantially the entire conversation and that
the Union was not mentioned. He explained also that the reason
the elevator girl had prevented Silvick and Shaw from going upstairs
was that the pressing department was being moved from the second
to the first floor and that he had instructed her to allow no one upstairs
who was not working there.
As has already been pointed out, it is the contention of the re-
spondents that the immediate cause of Silvick's lay-off was lack of
work. The bulk of the work of the pressing department falls in
two seasons, spring and fall, with low periods in the weeks around
June and December. Work does not usually cease entirely between
seasons, however, since there are "samples" to be pressed. The re-
spondents' testimony and an exhibit introduced in evidence at the
hearing containing weekly pay-roll statistics of the pressing depart-
ment-hours worked and pay received by each employee in the de-
partment from May 1939 through April 1940-show that such an' off
season began in October 1939 and reached its low peak in November.
Silvick admitted on cross-examination that work began to slacken
in October 1939. At the beginning of November, one employee,
Emma Miller, had already been off the pay-roll for 4 weeks, Sulli-
van missed 2 weeks in October. On November 7 Sullivan was again
laid off and Hanlon with her. The following week, on. November
14, as already stated, Silvick and Shaw were laid off. The other
girls were retained, but their hours were appreciably lessened.
Choice of the girls to be laid off in the pressing department rested
entirely with Miss Marie, who had had this responsibility for 20
years. She testified, as did Brodsky, that the respondents' policy
was to lay off first the girls most recently employed. She testified
also that she treated the last five girls to be hired equally in this
, As stated above , however, the complaint was dismissed as to Shaw following a stipula-
tion by the Board , the Union, and the respondents that the respondents did not discriminate
against her by reason of union membership or activity
THE KRAMER COMPANY 931
respect, and divided the available work equitably among them. It is
not clear from the record whether she regarded Silvick as one of
these five at this time. , There is no doubt that three of them were
Shaw, Sullivan, and Hanlon. The fourth apparently was Miller,
who, however, received a' little more work than the others because
she was doing tuck-pressing, a special operation. Miss Marie's tes-
timony that Shaw had seniority over Silvick lends itself to the con-
clusion that she, too, was one of the five, although Shaw did ' not
mention Silvick as one of the employees over whom she had seniority.9
Silvick was employed by the respondents approximately as long as
Shaw. By her own admission she had been considered a "steady" girl
no more than 9 months, and had been subjected to frequent lay-offs
since her first employment by the respondents. We find that Shaw,
Sullivan, Hanlon, Miller, and Silvick were the respondents' newest
employees during the fall season 1939, and that Shaw and Silvick
had seniority over the others. We are satisfied from all the evidence
that the respondents were not able to provide work for all their em-
ployees in the pressing department at this time, as evidenced by the
lay-offs in addition to Silvick's and the reduced hours of the retained
employees, and that they laid off their most recent employees. The
contentions of Shaw and Silvick, that they saw Hanlon, Benton, and
Sullivan working on November 17 when they returned to request
work is not substantiated by the evidence. Hanlon was taken back
on November 21, 1939, but given only 17 hours of work for the follow-
ing week; Miller was reemployed about December 5, 1939; Shaw and
Sullivan were reemployed on December 12; 1939, but were given only
9 and 12 hours of work, respectively, the following week, and 14 and
19 hours the subsequent week.
In addition to the assertion that they had no work on November
14, 1939, the respondents enumerated reasons why they considered
Silvick's employment undesirable. These included inefficiency, pro-
fanity, poor deportment, and tardiness. Miss Marie testified that
Silvick was a slow presser, and that all the other pressers produced
more work than she; that she was a disturbing element in the plant
because she habitually ran back and forth between the work tables,'
talked a great deal, and disturbed others at their work; that she em-
ployed the worst sort of profanity upon the least provocation, even
towards her superiors, having called Kramer a "Jew-son-of-a-bitch"
and a "bastard"; and finally, that she continually came in late without
Shaw mentioned Sullivan , Miller, Hanlon, and Emily Benton . Benton had first been
employed as a presser 15 years previous to the hearing. After an illness of 5 years she
was reemployed as a presser about November 28, 1939. At the time of the hearing the
respondent considered her a part of the group, which included Shaw, having the least
seniority.
413602-42-vol 29-60
'932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permission and had done so no less than. 37 times from August 1,
1939, to November 14, 1939. Miss Marie testified in addition that a
few weeks before Silvick's lay-off Silvick resorted to threats against
her and, since work was becoming slack, she decided to lay her off
immediately. _ Silvick appealed to Brodsky stating that she had chil-
dren to support, and Brodsky replaced her in spite of Miss Marie,
instructing the latter to give Silvick whatever work there was then
available. She was therefore given samples, and, according to Brod-
sky, did them poorly.
The gravity of these charges must be considered in the light of
the following evidence. As far as Silvick's efficiency is concerned,
she admitted readily that she knew she was slow, and that the work
seemed more difficult for her than for the other girls. She admitted
that she had determined, after her reemployment in February 1939,
to work less strenuously. On the other hand, it does not appear from
the respondents' pay-roll record that her production was the lowest
of the pressers. Ida Steelman's pay was at least as low as, if not
lower than Silvick's, commensurate to the number of hours worked.1e
Miss Marie admitted that Silvick's production did not fall so low
that she was receiving less than the prescribed minimum under ap-
plicable wages and hours legislation and that as long as she did this
it was satisfactory. This admission was made in spite of the fact
that one of her duties, as forelady, was to produce a certain amount
of work each week." The allegation that Silvick did an unusual
amount of talking and swearing in the plant is corroborated by a
number of witnesses. Several testified that she interfered with their
work, although this was denied by Silvick. Silvick's activity in
this connection was not unusual, however, since all the girls talked
while at work, and especially when work was scarce. ' Silvick admit-
ted that she used profanity and alleged that everyone did. Her
immediate coworkers made the same admission, but asserted that
Silvick was the worst offender, which the record amply sustains. That
the respondents were fully aware of her proclivity is demonstrated by
the fact that Kramer, stepping out of the elevator which was located
immediately behind Silvick's desk, overheard her language upon
several occasions, and a few weeks prior to November 14, 1939, he
heard her derogatory references to himself. He commented thereon
to Miss Marie and to Brodsky, but instead of discharging Silvick,
"'Steelman testified that Silvick's behavior interfered with her work, but her record
did not improve after Silvick ' s lay-off.
11 Miss Marie testified that she had once laid Silvick off for her complaining about prices
and general conduct at the plant . Upon cross-examination she fixed this period as the
2 weeks preceding July 25, 1939 . This contention , we find, is completely refuted by the
pay-roll records already referred to which show that during these 2 weeks there was so
little work that all but 2 or 3 employees had been laid off.
TAE KRAMER COMPANY 933
she was even given extra consideration by Brodsky as shown above.
Concerning Silvick's tardiness, while it is clear that she had received
no permission to come late, and was a serious offender, yet it is sig-
nificant that Miss Marie admitted that Silvick had always come late
and that she therefore-had had to accept her excuses.
That these factors, while not to be condoned, were not accorded
substantial weight when Silvick was "laid off" on November 14,
1939, is clear from the testimony of Miss Marie, Kramer, and Brod-
sky. Both Miss Marie and Brodsky announced at that time that she
was being laid off for lack of work. Miss Marie also stated that she
had never discharged Silvick that if she needed another employee and
Silvick were willing to come back, she would take her. She alleged
also that she had never bothered to send for her because she heard
she had a better job, and because Silvick had not reapplied for work.
We therefore find' that Silvick was laid off on November 14, 1939,
and was not discharged.12 Kramer's and Brodsky's statements which
will be considered below lead to the same conclusion. -
We find on the basis of all the evidence, that the statements allegedly
made by Brodsky to Silvick and Shaw on or about November 7, 1939,
regarding their discharge for union activities, were not made and that
the other statements alleged had no bearing upon, her lay-off. We
find also that the only reason Shaw and Silvick were not permitted
to go upstairs on November 27, 1939, was because the pressing de-
partment was being moved. Upon the entire record we find that
the evidence fails to sustain the allegation of the complaint that the
respondents, by laying off Silvick on November 14, 1939, discriminated.
against her because of her union membership and activity, within
the meaning of Section 8 (3) of the Act. We shall accordingly order
that such allegations be dismissed.
The complaint as amended also alleges that the respondents refused
Silvick reinstatement on or about December 5, 1939, and thereafter,
because of her union membership and activity and for the additional
reason that she filed or caused to be filed, charges under the Act.
On December 5, 1939, the Union filed its charges herein. Shortly
after that Brodsky and Kramer had a conference at the Regional
Office of the National Labor Relations Board, and were there notified
that the Union had filed charges with respect to the dismissal of
Silvick and-Shaw on November 14, 1939. This was the first notice
given the respondents that they were being charged with having dis-
missed Silvick because of her union membership and activity.
'Statements by both Kramer and Brodsky indicate that there was a custom in their
plant "never to fire anyone outright" but to lay them off for the dull period and fall to
recall them later. There is no indication that there was any intent to discharge Silvick
at this time.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Brodsky was being cross-examined at, the hearing; he made
the following statements :
Q. [By Mr. Spencer.] Now, Mr. Brodsky, I believe all through
your testimony on direct examination you stated that Emma
Silvick was never fired, that she was always laid off; is that true?
A. Up until she made those charges.
Q. What charges do you refer to?
A. The charges you have against us.
Q. You mean, she filed' a charge with the National Labor
Relations Board?
A. That is right.
Q. At that time the company immediately changed her situ-
ation from a lay-off to permanent discharge; is that correct?
A. That is right.
Brodsky testified that after the filing of the charges he and Kramer
saw no necessity of recalling Silvick and asserted that she was not
worthy of coming back. Kramer's testimony was substantially
identical: Silvick discharged herself by filing "false charges" and
by swearing against him. Both Kramer and Brodsky reiterated
this again and again.
Silvick did not, it is true, reapply to the respondent for work
after filing. the charge, and Kramer testified that it is not the re-
spondents' policy to send for employees. Silvick had been notified,
however, by Miss Marie at the time of the lay-off, and by Brodsky,
when she reapplied for work, that they would inform her when there
was work for her, and she testified that upon former occasions her
periods of lay-off at the respondents' had been terminated by her
being sent for. Shaw, likewise, testified that she was sent for after
slack periods. We accordingly find that there was no duty incumbent
upon Silvick to reapply for employment and that she had a right
to rely upon representations by the respondents that she would be
sent for and that she retained her'status as a laid-off employee until
her discharge as hereinafter found.
We have pointed out above that of the employees laid off with
Silvick, she alone was refused reemployment. The last two, Shaw
and Sullivan, were reemployed on or shortly after December 12,
1939.13 At this time, the respondents were fully aware 9f the filing
of charges 'of discrimination with the Board. We find that the re-
spondents failed to reemploy Silvick and in effect discharged her
because of the allegedly "false" charge filed in her behalf.
33 Benton was given employment a little earlier. ' In April an employee by the name
'of M. Egan was reemployed after a break in employment of 9 months.
THE I RAMER COMPANY 935
Section 8 (4) of.the Act expressly prohibits discharge or any other
form of discrimination against an employee "because he has filed
charges or given testimony under the Act." We have found that the
respondents determined not to reemploy Silvick because she had filed
charges which the respondents deemed "false." The prohibition of
the statute against discrimination is effective irrespective of whether
the employer believes the charges to be false or whether the ultimate
proof sustains their validity. To hold otherwise would be to subject
an employee, who invoked the protection of the Act, to the peril of
discrimination without redress in every case where the employer con-
sidered the charges false or where, for whatever reason, the entire
proof after a trial upon the merits failed to sustain the validity of
the charges filed. To that extent such, holding would nullify the
express statutory protection afforded employees against the unfair
labor practice condemned by Section 8 (4) of the Act." -
We find that the respondents discharged Silvick by failing to re-
instate her on December 12, 1939, for the reason that she filed charges
against the respondents under the Act 1' We also find that by the
discharge the respondents discriminated in regard to the hire and
tenure of employment'of Silvick thereby discouraging membership
in a labor organization and interfering with, restraining, and co-
ercing its employees in the exercise of rights guaranteed by Section
7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III B above,
occurring in connection with the operations of the respondents de-
scribed 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
Since the respondents have engaged in certain unfair labor prac-
tices, we shall order them to cease and desist therefrom and to take
certain affirmative action which we find will effectuate the policies
of the Act.
14 Matter of F. W. Poe Manufacturing Company and Textile Workers Union of America,
27 N L R B 1257 1
1a National Labor Relations Board v. Friedman-Harry Marks Clothing Co, Inc, 301
U. S. 58, rev'g 85 F. (2d) 1 (C. C A. 2), and enf'g Matter of Friedman-Harry Marks
Clothing Company, Inc and Amalgamated Clothing Workers of America, 1 N. L. R. B. 411,
432; Matter of Albert J. Bartson and Textile Workers' Organizing Committee, 23 N L.
R B. 666
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have found that the respondents discriminatorily discharged
Silvick because she filed charges under the Act. We shall therefore
order the rspondents to offer, Silvick immediate reinstatement to
her former or a substantially equivalent position, without prejudice
to her seniority or other -rights or privileges. Since, as we have
found, the discrimination against Silvick occurred on December 12,
1939, after the date of the conference at the Labor Board, we shall .
order- that the respondents pay to Silvick -the amount she would
normally have earned as wages from the date of such discrimination
to- the date reinstatement is offered to her, less her net earnings is
during said period.
. The respondents contend in opposition to the remedy above out-
lined, however, that Selvick has secured regular and substantially
equivalent employment elsewhere ; that she is therefore no longer an
employee within the meaning of Section 2 (3) of the, Act; and that,
since she is not an employee, the Board has no power to order her,
reinstatement. While we do not adopt the view that the obtaining
of other regular and substantially equivalent employment deprives
the Board of power to reinstate individuals who have been dis-
criminated against,17, Silvick's employment record since her dis-
charge would not in any event justify the application of the rule
for which the respondents contend.
Silvick received approximately $20 a week while working for
the respondents. On March 27, 1940, she was hired by the Harris
Dress Company to press dresses, and was still employed there at
the time of the hearing. She admitted that she was earning approxi
mately $25 a week there, and that this work was not as difficult for her
as that of the respondents. She stated, however, that since the
work of the Harris Dress Shop was seasonal in character, and since
she was told when she was employed there that she was there only
"to help out," she would rather work for the respondents, where
she had approximately 3 years seniority. She desires reinstatement
to her former position.ls We find that Silvick has not obtained
regular and substantially equivalent employment.
16 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been mcuired but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Companij and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590 , 8 N L R B 440. Monies
received for work performed upon Federal , State, county, municipal , or other work-relief
projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B.,
decided by United States Supreme Court, November 12, 1940
"Matter of Eagle -Pitcher Msnxng & Smelting Company, et al., and International Union
of Mine, Mill, & Smelting Workers, Local Nos. 15, 17, 107, 108, and 111, 16 N L. R. B 727 ;
Continental Oil Company v. National Labor Relations Board, 113 F. (2d) 473, (C. C. A.
10), remanded 313 U. S. 212.
THE KRAMER COMPANY 937 .
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Ladies' Garment Workers' Union is a labor or-
ganization Within the meaning of Section 2 (5) of the Act.
2. By discriminating against Emma Silvick because she filed
charges under the Act, the respondents have engaged in and are en-
gaging in unfair labor practices within the meaning of Section 8 (4)
of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Emma Silvick and thereby discouraging membership in
a, labor organization, the respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section
8 (3) of the Act. -
4. By interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act,
the respondents have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (1) of the Act. _
5. The respondents have not engaged in unfair labor practices
within the meaning of Section 8 (1) of the Act by urging, per-
suading, and warning their employees to refrain from becoming or
remaining members of the Union or by threatening said employees
with discharge and other reprisals if they became or remained mem-
bers of said Union.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondents, Louis Kramer, Henry Kramer, and. Hilda Kramer,
trading as The Kramer Company, Baltimore, Maryland, their agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discharging, refusing to reinstate, or otherwise discriminating
against any_ of their employees because they have filed charges or
given testimony under the National Labor Relations Act;
(b) Discouraging membership in International Ladies' Garment
Workers' Union, or any other labor organization, of its employees,
by laying off or discharging any of its employees because of member-
ship in, or activity in connection with, International Ladies' Garment
18 See Matter of Pulaski Veneer Company and United Brotherhood of Carpenters d
Joiners of America, Local Union #1862, 10 N L. R. B 136, 147
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers' Union, or any other labor organization, or by discrim-
inating in any other manner in regard to hire or tenure of em-
ployment or any term or condition of employment;
(c) In any other manner interfering with, restraining, or coerc-
ing their employees in the exercise of their rights to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and' to engage in
concerted activities for the purposes of collective bargaining and
other mutual aid or protection, as guaranteed in Section 7 of the
National Labor Relations Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Emma Silvick immediate and full reinstatement
to her,former position without prejudice to her seniority and other
rights and privileges ; -
(b) Make whole Emma Silvick for any loss of pay that' she
may have suffered by reason of the respondents' discrimination
against her by payment to her of a sum of money equal to that which
she would normally have earned as wages from the date of the
respondents' discrimination against her, December 12, 1939, to the
date of the respondents' offer of reinstatement, less her net earn-
ing 19 during said period;
(c) Post immediately in conspicuous places at their plant in
Baltimore, Maryland, and maintain for a period of at least sixty
(60) consecutive days from the date of posting, notices to their
employees stating : (1) that the respondents will not engage in the
conduct from which they are ordered to cease and desist in para-
graphs 1 (a), (b), and (c) of this Order; and (2) that the respond-
ents will'take the affirmative action set forth in paragraphs 2 (a)
and (b) of this Order; and that the respondents' employees are free to
become or remain members of International Ladies' Garment Work-
ers' Union and the respondents will not discriminate against any
employees because of membership or activity in that organization;
(d) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this Order what steps they
have taken to comply therewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby
is, dismissed in so far as it alleges that the respondents have engaged
in unfair labor practices by urging,' persuading, and warning their
employees to refrain from becoming or remaining members of the
Union and by -threatening said employees with discharge and other
reprisals -if they become or remained members of said Union ; and by
discharging Emma Silvick on November 14, 1939.
19 See footnote 16, supra.