Tropix-Togs, Inc.

National Labor Relations Board - Board Decisions

Mar 17, 1955

111 N.L.R.B. 989 (N.L.R.B. 1955)

TROPIX-TOGS, INC. 989
2. All employees of the Respondent performing or appearing before the micro-
phone or camera on radio and television programs at the Respondent's New Haven
plant, excluding engineers, clerical employees, producers, and supervisors as defined
in the Act, constitute a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9 (b) of the Act.
3. American Federation of Television and Radio Artists, AFL, was, on June 4,
1954, and at all times since has been, the exclusive representative of all employees
in the aforesaid unit for the purposes of collective bargaining within the meaning
of Section 9 (a) of the Act.
4. By refusing on and after July 8, 1954, to bargain collectively with the afore-
said Union as the exclusive representative of the employees in the appropriate unit,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
5. By the aforesaid unfair labor practice the Respondent has interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed in Section
7 of the Act, thereby engaging in an unfair labor practice within the meaning of
Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL bargain collectively upon request with American Federation of
Television and Radio Artists, AFL, as the exclusive representative of all our
employees performing or appearing before the microphone or camera on radio
and television programs at our New Haven plant, excluding engineers, clerical
employees, producers, and supervisors as defined in the Act, with respect to
grievances, labor disputes, wages, rates of pay, hours of employment, and other
conditions of employment and, if an understanding is reached, embody such
understanding in a signed agreement.
WE WILL NOT in any manner interfere with the efforts of the above-named
Union to bargain collectively with us, or refuse to bargain in good faith with
said Union, as the exclusive representative of all our employees in the bargain-
ing unit set forth above.
ELM CITY BROADCASTING CORPORATION,
Employer.
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
TROPIx-TOGS , INC. and MIAMI JOINT COUNCIL, INTERNATIONAL LADIES'
GARMENT WORKERS UNION, COMPOSED OF LOCALS 339 AND 415, AFL.
Case No. 10-CA-1668. March 17, 1955
Decision and Order
On October 30, 1953, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that the Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the copy
111 NLRB No. 157.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Intermediate Report attached hereto. Thereafter, the Respond-
ent and the General Counsel entered into a stipulation setting forth
additional jurisdictional facts pertaining to the Respondent' s opera-
tions. ' The Respondent filed exceptions to the Trial Examiner's In-
termediate Report and a brief in support of its contentions; 2 and the
Union filed a statement in support of the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case and finds merit in the Respondent's exceptions.
The Trial Examiner found that employees Mable Arnold and
Camille Werner were discriminatorily discharged for the purpose of
discouraging union membership and activity. We do not agree with
this finding.
As set forth in the Intermediate Report, Mable Arnold signed an
application for union membership January 24, 1953, and on January
26, 1953, at Arnold's suggestion, Camille Werner also signed an appli-
cation for membership. Apparently three other employees also signed
applications for union membership at that time. However, there is
nothing in the record showing that the Respondent had knowledge of
this union activity prior to January 28,1953. when Arnold and Werner
were discharged.
It is undisputed that during the approximately 1 month that Mable
Arnold was employed, she was able to meet minimum production stand-
ards for only 1 week. Further, her work was of such poor quality that
it was necessary on numerous occasions for Assistant Forelady Bledsoe
to do her work over. The poor quality of Arnold's work affected the
production of the other employees in the plant, for, as the work is
done on a production line basis , the other employees could not per-
form their work until the errors were corrected.
Camille Werner was admittedly a competent employee whose pro-
duction was above average. However, by her own admission, she twice
quit the Respondent and once went on vacation because she did not
get the kind of work assigned to her that she wished . Immediately
prior to her final termination on January 28, 1953, she engaged in a
running argument with Forelady Mastrogiovanni over the work as-
signed to her. It was necessary for the Respondent's president to in-
tervene in this dispute. According to the testimony of the forelady,
Werner was discharged as an outgrowth of this dispute because she
falsely asserted that certain work had not been assigned to her.
1 It was stipulated that the Respondent in the course of its business operations at Miami,
Florida, annually sells and ships finished products valued in excess of $50,000 to customers
located outside the State of Florida . This amount meets the Board's recently announced
jurisdictional standards . Jonesboro Grain Drying Cooperative, 110 NLRB 481.
2 The Respondent 's request for oral argument is hereby denied as the record , including
the exceptions and briefs , adequately presents the issues and positions of the parties.
TROPIX-TOGS, INC. 991
The testimony of the discharged employees, Arnold and Werner,
and the Respondent's president, Sam Kantor, is in direct conflict
regarding a reinstatement offer by Kantor. Both Arnold and Werner
testified that Kantor was not present in the Respondent's office on the
morning of the discharges. Werner in effect denied that she had
ever been offered reinstatement. Kantor, Mastrogiovanni, and Assist-
ant Foreman Brooks testified that Kantor was present when Arnold
and Werner were discharged. Kantor further testified that after he
had determined that the employees were being discharged by Forelady
Mastrogiovanni he attempted to persuade them to remain. In doing
this, he directly addressed Werner, as she had been employed longer
than Arnold and he was better acquainted with her. This offer, how-
ever, also included Arnold. Kantor also testified that when Werner
returned at a later date for her check he again tried to persuade her to
return to work. The Trial Examiner failed to resolve the credibility
issue which is raised by this conflict in testimony.
In concluding that the Respondent discriminatorily discharged
Arnold and Werner, the Trial Examiner relied upon what he called
their "uncontradicted testimony" that upon their dismissal they were
told by Forelady Mastrogiovanni, "to go to the Union for a job and
that `we will not have a union in here."' However, the record reflects
that the remark, we will not have a union in here," was attributed to
Forelady Mastrogiovanni only by Arnold. Further, the statement
by the forelady as reported by the discharged employees was in effect
contradicted by the forelady's own testimony.
In these circumstances, particularly in view of the employment
records of Arnold and Werner, the absence of any corroborating proof
that the Respondent was aware of their union activities, the uncer-
tainty in the record as to what actually occurred on the occasion of
their discharge, and the Trial Examiner's failure to resolve the con-
flict in the testimony described above, we have, contrary to the Trial
Examiner, concluded that the General Counsel has not sustained the
burden of proving that the discharges of Arnold and Werner were
discriminatorily motivated. Accordingly, we shall dismiss the
complaint.
[The Board dismissed the complaint.]
MEMBER MURDOOK, dissenting :
I dissent from my colleagues' reversal of the Trial Examiner's find-
ing that the Respondent discriminatorily discharged Arnold and
Werner.
Accepting the Trial Examiner's credibility findings, there can be
no question of awareness of their union activities, or that they were
discharged because of such activity-indeed, Forelady Mastrogiovanni
specifically related the discharges to the Union at the time she made
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them. Necessarily, my colleagues are not accepting the Trial Exam-
iner's credibility findings when they refer to their "uncertainty as to
what actually occurred on the occasion of their discharges" and the
lack of corroborating evidence of Respondent's awareness of union
activities. The well-established and often cited rule is that the Board
does not overrule a Trial Examiner's resolutions as to credibility
"except where the clear preponderance of all the relevant evidence con-
vinces us that the Trial Examiner's resolution was incorrect."'
Plainly my colleagues are not following that rule in this case. Some-
thing more tangible than absence of corroborative evidence and their
feeling of "uncertainty," would be necessary to constitute the "clear
preponderance of all the relevant evidence" which would warrant
reversal of the Trial Examiner's credibility findings. Accepting them,
there is no uncertainty as to the crucial fact of what took place.
Mable Arnold testified as follows with respect to what Forelady
Mary Mastrogiovanni told them in the office at the time of the dis-
charge:
Mary came on in and she said , "Arnold, I want to know if you
haven't averaged 75 cents an hour while you have been here." I
said, "I made $32 last week." She said, "Well, you can go to the
union and they will get you a job for we will not have any union
here." She told Camille something on the same order. [Empha-
sis supplied.]
Camille Werner's testimony as to what Forelady Mary Mastrogio-
vanni said at the time of discharge is :
And when I went down Mable was talking to Mary. She was
telling Mary how much she made last week. Mary said to her,
"How much did you make last week?" and she said, "$32." And
so then Mary she said, "Go to the union and get yourself an-
other job." She said, "How much did you make?" and I said
"$46," and she said, "You had better go to the union too." [Em-
phasis supplied.] 4
I note that my colleagues' quarrel with the Trial Examiner's refer-
ence to Arnold's and Werner's testimony as to what they were told on
dismissal as "uncontradicted." Forelady Mastrogiovanni did not
specifically deny Arnold's and Werner's testimony in this respect,
merely testifying that "As they were walking out they said they were
going to the Union." This testimony is not necessarily contradictory
Standard Dry Wall Products, 91 NLRB 544.
4 As the majority notes , the Trial Examiner incorrectly indicated that both Arnold's
and Werner 's testimony attributed the statement "we will not have a union in here" to the
forelady when she told them to go to the Union for jobs, although only Arnold 's testimony
included the former statement . Arnold testified , however, that the forelady "told Camille
something on the same order," and I would adopt the finding that both statements were
made.
TROPIX-TOGS, INC. 993
of or inconsistent with Arnold's and Werner's testimony as to what
the forelady said ; it could be supplementary.
My colleagues ignore what is a significant factor indicating the cor-
rectness of the Trial Examiner's finding as to the motive for the dis-
charges-the shifting position of the Respondent as to the asserted
reason for the action. As the Trial Examiner pointed out, the sworn
answer asserted that both were discharged for "refusal to do the type
of work she was asked to do," yet, no evidence was offered by the Re-
spondent to show that this was the case. At the hearing it was con-
tended that Arnold was discharged for failure to make production
(although by the end of her third full week she had done so). As to
Werner, the forelady claimed at the hearing she was discharged be-
cause she incorrectly complained she wasn't getting her share of "elas-
tic." Yet the testimony of President Kantor was that this complaint
had been disposed of a week earlier by showing her records to the
contrary.
Accordingly, I would affirm the finding that the discharges were
discriminatorily motivated.
Intermediate Report
STATEMENT OF THE CASE
A charge having been duly filed and served, a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National
Labor Relations Board, and an answer having been filed by the above-named Re-
spondent, a hearing involving allegations of unfair labor practices in violation of
Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, 61
Stat. 136, herein called the Act, was held in Miami, Florida, on September 28 and
October 1, 1953, before the duly designated Trial Examiner.
In substance the complaint alleges and the answer denies that the Respondent:
(1) On January 28, 1953, discriminatorily discharged employees Camille Werner
and Mable Arnold to discourage membership in the Union; (2) by its forelady, Mary
Mastrogiovanni, threatened employees with economic reprisals for supporting the
Union; and (3) by the aforesaid conduct has interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by Section 7 of the Act. The answer
also sets forth certain affirmative alleged reasons for the two discharges.
At the hearing all parties were represented, were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence pertinent to
the issues, to argue orally upon the record, and to file briefs and proposed findings
and conclusions. Arguments and briefs were waived.
Upon the entire record in the case, and from his observation of the witness-- *w-
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Tropix-Togs, Inc., is a Florida corporation, with its principal office and place of
business in Miami, Florida, where it is engaged in the manufacture, sale, and distri-
bution of children's novelty clothing.
During the year before the hearing the Respondent bought raw materials, supplies,
and equipment valued at more than $50,000, of which about 50 percent was pur-
chased outside the State of Florida. During the same period, it sold finished prod-
ucts valued at more than $100,000, of which goods valued at more than $25,030 were
shipped outside the State of Florida.
The Respondent is engaged in commerce within the meaning of the Act.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Miami Joint Council, International Ladies' Garment Workers Union , Composed
of Locals 339 and 415, AFL, is a labor organization admitting to membership em-
ployees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
There is no dispute that Mable Arnold and Camille Werner, with about 1 month's
and 1 year's employee service, respectively, were summarily discharged by Forelady
Mary Mastrogiovanni upon their reporting for work the morning of January 28,
1953, before the end of the regular workweek. The reason for their dismissal is in
issue.
Supporting General Counsel's claim that the discharges were for the purpose of
discouraging membership in the Charging Union is the uncontradicted testimony of
the two employees to the effect that upon dismissing them the forelady told them to
go to the Union for a job and that "we will not have a union in here." Arnold had
signed an application card on January 24 and had obtained Werner's signature to a
similar card on January 26.
The validity of General Counsel's case stands out even more clearly in view of the
nature of the Respondent's defense. The latter's pleadings and the evidence adduced
to support them are not only in conflict and inconsistent, but the testimony of man-
agement witnesses fails to withstand the scrutiny of reason.
The sworn answer of President Kantor claims that both employees were discharged
"because," in the case of each, "of her refusal to do the type of work she was asked
to do." At the hearing no evidence was offered by the Respondent to show that
either discharge was precipitated by actual refusal to perform work assigned. The
only testimony bearing upon the point was elicited by General Counsel while cross-
examining the forelady about Werner. In answer to his question as to whether
Werner had refused to do "any particular type of work" the day before the dismissal,
the forelady replied: "She most certainly did." Apparently in an effort to extricate
himself from this unfavorable answer, General Counsel questioned further. Then
the forelady made the extravagant claim that Werner had "refused the bands" (ap-
parently on "shorts") "right along," for a period of a "month or two." Not only is
this claim unsupported by her testimony on direct examination, but documentary
evidence-Werner's work slips-placed in evidence by the Respondent show the
precise contrary. And, in any event, at no point in her testimony did the forelady
contend that she dismissed Werner for refusing to do work assigned to her. She gave
the following reason-not claimed in the answer:
It all came over the elastic. She lied about the whole thing, that she wasn't
given the elastic, and then I had had enough. I figured that I was putting up
with her bickering all the time, and if I had to take her lying too, well then I
thought I had had enough by that time, so the next morning I went and told
her to go downstairs and get her pay.
But the "elastic" incident, referred to above, occurred a "week or so before she
was discharged by Mary," according to Kantor's direct testimony, and arose over
Werner's complaint that she was not getting as much of this type of work as other
girls. Also according to Kantor's testimony, the complaint was disposed of by show-
ing her records to indicate the contrary.
As to Arnold, no testimony was elicited either by counsel for the Respondent or
by General Counsel, to support Kantor's sworn answer. At the hearing an entirely
different reason was advanced: the claim that she had failed to reach "production"-
to earn, at piecework rate, enough to equal the hourly minimum legal wage rate of
75 cents per hour. Records placed in evidence by the Respondent refute this claim.
Such records show that by the end of her third full week of employment (she was
not allowed to complete her fourth week) she in fact had made "production."
Furthermore, on other matters the testimony of Kantor and his forelady is at
such serious odds that the Trial Examiner is unable to place reliance upon it. For
example, the forelady said that the employees were "paid . . . off" on January 28,-
Kantor said they were not.
In summary, the Trial Examiner concludes and finds that there is no merit in
any of the reasons advanced by the Respondent for the two discharges. On the
contrary, it is concluded and found that the preponderance of credible evidence sup-
ports the allegations of the complaint as to Arnold and Werner, and that the dis-
criminatory dismissals were for the purpose of discouraging union membership and
activity, thereby interfering with , restraining , and coercing employees in the exercise
of rights guaranteed by the Act.
ALASKA BEVERAGE CO. 995
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It has been found that the Respondent has engaged in and is engaging in unfair
labor practices. It will be recommended that it cease and desist therefrom and take
certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Respondent has discriminated against Camille Werner
and Mable Arnold. It will therefore be recommended that it offer them immedi-
ate and full reinstatement to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges, and make them whole
for any loss of pay they may have suffered by reason of the discrimination by pay-
ment to each of them of a sum of money equal to that which she would normally
have earned from January 28, 1953, to the date of an appropriate offer of reinstate-
ment, less her net earnings,' which sum shall be computed on a quarterly basis in
accordance with Board policy set out in F. W. Woolworth Company, 90 NLRB 289.
It will also be recommended that the Respondent make available to the Board, upon
request, payroll and other records to facilitate the checking of the amount of back
pay due.
The discrimination found herein indicates a purpose to limit the lawful rights of
the Respondent 's employees . Such purpose is related to other unfair labor prac-
tices, and it is found that the danger of their commission is reasonably to be appre-
hended . It will therefore be recommended that the Respondent cease and desist from
in any manner interfering with , restraining , or coercing its employees in the exercise
of rights guaranteed by the Act.
Upon the basis of the above findings of fact, and upon the entire. record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Miami Joint Council, International Ladies' Garment Workers Union, Com-
posed Of Locals 339 and 415, AFL, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Camille
Werner and Mable Arnold, thereby discouraging membership in a labor organization,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
3. By interfering with , restraining , and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
' Crossett Lumber Company, 8 NLRB 440
HOMER W . ROBINSON D/B/A ALASKA BEVERAGE Co. and TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS , LOCAL UNION No. 183,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA , AFL. Case No. 19-CA-1158.
March 17,1955
Decision and Order
On January 7, 1955, Trial Examiner Ralph Winkler issued hi,,
Intermediate Report in the above-entitled proceeding, finding that
111 NLRB No. 164.
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