Vogue Lingerie, Inc.

National Labor Relations Board - Board Decisions

May 5, 1959

123 N.L.R.B. 1009 (N.L.R.B. 1959)

VOGUE LINGERIE, INC. 1009
igible to vote in the election held on December 2 2 We therefore
reject the Regional Director's recommendations and hereby sustain
the challenges. Accordingly, as the Intervenor obtained a majority
of the valid ballots cast, we shall certify it as the exclusive collective-
bargaining representative of all employees in the appropriate unit.
[The Board certified Employees Independent Union as the col-
lective-bargaining representative of the employees at the Harvey,
Illinois, plant of Wyman-Gordon Company (Ingalls-Shepard Divi-
sion), in the unit herein found appropriate.]
2 Gerber Plastu, Company, supra.
Vogue Lingerie, Inc. and International Ladies' Garment Work-
ers' Union , Local 225. Case No. 4-CA-1610. May 5, 1959
DECISION AND ORDER
On October 16, 1958, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom, and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
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 Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, insofar as they are consistent with this decision.
1. Contrary to the Trial Examiner, we find that the Respondent
violated the Act by discharging Sylvia Robison on August 21, 1957,
because the Union filed an unfair labor practice charge on her behalf.
Robison was first discharged by the Respondent on August 7, 1957,
for alleged economic reasons. On August 19, 1957, the Union filed
a charge on her behalf, alleging that Robison was discharged for
engaging in union activities. On August 20, 1957, Union Organizer
Wollk, who authorized the filing of the charge, met with Plant Man-
ager Greenberg to discuss Robison's discharge. Wollk contended
that Robison was unlawfully discharged and threatened to file unfair
labor practice charges against the Respondent, if she were not rein-
123 NLRB No. 122.
508889-60-vol. 123-65
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated. Greenberg had no knowledge that a charge had been filed
and agreed to Wollk's suggestion that Robison be reinstated to a
nonsupervisory j ob. Later that day, on August 20, Greenberg received
by registered mail a copy of the charge filed by the Union on August
19, 1957. Robison reported for work on August 21, but about 2-.:or .
3 hours later Greenberg, having learned that she had reported, dis-
charged her. Greenberg admits that the reason for this discharge
was the fact that a charge had been filed.
With respect to Robison's initial discharge on August 7, the Trial
Examiner found that she was a supervisor at that time and, there-
fore, the Respondent did not violate the Act, regardless of its motive
for the discharge. No exceptions were filed to this finding, which
is hereby adopted.
Concerning Robison's discharge on August 21, the Trial Examiner
found, in effect, that Wollk breached his agreement with Greenberg
not to file a charge in exchange for Robison's reinstatement and that
Greenberg was justified in discharging Robison on August 21. The
Trial Examiner further found that the termination of Robison both
on August 7 and on August 21, was a "continuation of the same situa-
tion" and not an unfair labor practice within the meaning of Section
8 (a) (3) of the Act, because Robison was a supervisor. He also stated
that it was not alleged in the complaint or litigated that the refusal
to rehire Robison under the foregoing circumstances was a violation
of Section 8(a) (4) of the Act.'
Although Wollk's threat to file unfair labor practice charges if
Robison were not reinstated may have carried the implication that
charges would not be filed if she were reinstated, agreements between
private parties with respect to unfair labor practice charges cannot
restrict the jurisdiction of the Board. The Board may process any
case involving an unfair labor practice when in its discretion it is
necessary to protect the public rights as defined in the Act; 2 and we
believe it is necessary here. Accordingly, Robison's right to an adjudi-
cation of her case by the Board is not foreclosed by any agreement
between Wollk and Greenberg to the contrary.
While it is true that the complaint did not allege a violation of
Section 8(a) (4), the Respondent's conduct may be held to constitute
a violation of Section 8 (a) (1), which was alleged in the complaint.3
Contrary to the Trial Examiner, it is clear from a mere reading of
the Intermediate Report that the parties litigated the issue of whether
Robison was discharged because a charge had been filed. In view of
the Respondent's discharge of Robison on August 21 for the admitted
I Section 8(a) (4) provides , inter alia, that it shall be an unfair labor practice for an
employer to discharge an employee because he has filed charges.
2 N.L.R.B. v. Walt Disney Productions , 146 F. 2d 44 ( C.A. 9), cert. denied 324 U.S. 877.
3N.L.R.B . v. Newark Morning Ledger Co ., 120 F. 2d 262 , 267 (C.A. 3), cert. denied
314 U.S. 693.
VOGUE LINGERIE , INC. 1011
reason that a charge had been filed on her behalf, and in view of the
fact that Robison occupied an employee status at that time,' we find
that the Respondent interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the.
Act, in violation of Section 8 (a) (1) of the Act.
Accordingly, in order to effectuate the policies of the Act, we shall
order that the Respondent offer Robison immediate and full reinstate-
ment to her former position occupied on August 21, 1957, or a sub-
stantially equivalent position, without prejudice to her seniority and
other rights and privileges of employment. We shall also order the
Respondent to make Robison whole for any loss of pay she may have
suffered as a result of the Respondent's unlawful conduct by payment
to her of a sum of money equal to the amount she would normally have
earned from August 21, 1957, to the date of issuance of the Inter-
mediate Report and from the date of issuance of this Decision and
Order to the date on which the Respondent offers her reinstatement,'
less her net earnings during said periods. Back pay shall be com-
puted on a quarterly basis in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, and N.L.R.B. v. Seven-Up Bottling Com-
pany, 344 U.S. 344. Earnings in one particular quarter shall have no
effect upon the back-pay liability for any other such period.
2. We agree with the Trial Examiner that the strike which began
on September 10, 1957, in which 30 of approximately 200 of the
Respondent's employees participated, was an economic strike. We
are not unmindful that several strikers testified that one of the
reasons for going on strike was Robison's discharge, and that the
picket signs claimed that employees were on strike "in protest of
unfair labor practices." On the other hand, we have also considered
that several strikers testified they were concerned with recognition
of the Union, without mentioning Robison as a reason for going on
strike ; Wollk, during the meeting with Greenberg on August 20,
1957, requested such recognition, and testified that the charge he had
filed on behalf of Robison was a "routine" matter; the Union ran a
newspaper advertisement during the strike which referred to union
recognition as the reason, without mentioning any discharge; and
the 3-week period that elapsed between Robison's discharge and the
initial date of the strike. On the record as a whole, we see no causal
connection between the strike and the discharge, so as to warrant a
finding that the employees engaged in an unfair labor practice strike.
I In view of the fact that Robison was actually rehired for 2 or 3 hours in a non-
supervisory status before being discharged , we reject the Trial Examiner 's findings that'
the agreement to rehire her was not consummated , and Robison was a supervisor at all
material times.
6 As the Trial Examiner found no violation with respect to Robison 's discharge, we
have abated back-pay for the period between the Intermediate Report and this Decision.
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 18, 1957, the Respondent sent a letter to all of the.
strikers informing them that they had been replaced and that they
were no longer employees of the Respondent. As economic strikers,
the Respondent was entitled to replace them with permanent em-
ployees.' The Trial Examiner found that each of the 30 strikers was
in fact replaced by September 18, 1957. We have closely examined
the record with respect to the replacements hired by the Respondent,
and find, contrary to the Trial Examiner, that five of the strikers,
who had jobs as sewers , were not replaced by September 181 As to
these five employees, we find that the Respondent discriminatorily
discharged them in violation of Section 8(a) (3) and (1) of the Act'
These five employees are therefore entitled to reinstatement and back
pay. However, as the Respondent sent the discharge letters to all of
the 24 sewers who were on strike and as only 5 sewing jobs were then
available, the specific victims of the discrimination who would be
entitled to reinstatement with back pay cannot be identified at this
time. Therefore, in order to effectuate the policies of the Act, we
shall order the Respondent to select five employees from among the
sewers listed in Appendix A attached hereto for reinstatement to
their former or substantially equivalent positions, without prejudice
to the seniority and other rights and privileges of employment. Such
selection shall be made in accordance with the system of seniority or
other nondiscriminatory practice as heretofore has been applied in
the conduct of the Respondent's business. As indicated above, these
five employees shall also be reimbursed for any loss of pay they may
have suffered as a result of the Respondent's unlawful conduct by pay-
ment to each of them of a sum of money equal to the amount each
would normally have earned from the date each has applied for re-
instatement, or the date when the Union applied in their behalf, which-
ever is earlier, to the date of the Respondent's offer of reinstatement,
less her net earnings during said period. Back pay shall be abated for
the period from the date of the issuance of the Intermediate Report
to the date of the issuance of the Decision and Order herein. The
amount of back pay shall be computed as heretofore provided with
respect to Sylvia Robison.
SUPPLEMENTAL CONCLUSIONS OF LAW
1. By discriminating in regard to the hire or tenure of employment
of five of the Respondent's sewers, thereby discouraging membership
in the Union, the Respondent has engaged in and is engaging in
8 Phelps Dodge Corp . v. N.L.R.B., 313 U.S. 177.
7 Between September 10, when the strike began, and September 18, the (late of the
Respondent ' s letter , only 28 jobs were filled by the Respondent , of which 19 were sewers.
The record shows that 24 sewers went on strike . Thus, the jobs of five sewers were
not filled.
8 See Ford Radio & Mica Corporation , 115 NLRB 1046 , 1048-1049.
VOGUE LINGERIE, INC. 1013
unfair labor practices within the meaning of Section 8(a) (3) of
the Act.
2. By the foregoing unfair labor practices, by discharging Sylvia
Robison on August 21, 1957, and by interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (1) of
the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Vogue Lingerie,
Inc., Williamsport, Pennsylvania, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from:
(a) Discouraging membership in International Ladies' Garment
Workers' Union, Local 225, or any other labor organization, by dis-
charging or refusing to reinstate employees or discriminating in
regard to their hire, tenure of employment, or any term or condition
of employment, except to the extent permitted by the proviso to
Section 8 (a) (3) of the Act.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist International Ladies' Garment Workers' Union,
Local 225, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all such ac-
tivities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Galena Shemory, Sylvia Robison, and the five sewers to
be selected from the employees listed in Appendix A attached hereto
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of pay each
may have suffered by reason of the discrimination against them, in
the manner set forth in the Intermediate Report and this Decision
and Order.
(b) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, timecards,
personnel records and reports, and all other records necessary to
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
analyze the reinstatements rights and the amounts of back pay due
under the terms of this Order.
(c) Post at its plant in Williamsport, Pennsylvania, the notice
attached hereto marked "Appendix B." 9 Copies of said notice, to be
furnished by the Regional Director for the Fourth Region, shall, after
being signed by a duly authorized representative of Vogue Lingerie,
Inc., be posted by it immediately upon receipt thereof, and main-
tained for 60 consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Fourth Region in writing,
within 10 days from the date of this Order, as to what steps the
Respondent has taken to comply herewith.
MEMBERS RODGERS and BEAN took no part in the consideration of
the above Decision and Order.
U In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
Beverly Beach
Helen Berfield
Mina Bertin
Agnes Brown
'Marguerite Brungard
Ruth Crosley
Phyllis Dingier
Anna Evans
Evelyn Hoover
Alice Hughes
Edith Imes
Mabel Karbinas
Mabel King
Marie King
Mildred King
Dorothy Livermore
Mildred Livermore
Anne Malner
Anna McCleester
Sara Nihart
Catherine Reading
Alma Seylor
Mabel Shoemaker
Margaret Zeiber
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discharge or otherwise discriminate against any
employee for the purpose of discouraging membership in Inter-
national Ladies' Garment Workers' Union, Local 225, or any
VOGUE LINGERIE, INC. 1015
other labor organization, except to the extent permitted by the
proviso to Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form, join, or assist International Ladies' Garment
Workers' Union, Local 225, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment pursuant to
the provisions of Section 8 (a) (3) of the Act.
WE WILL offer to Galena Shemory, Sylvia Robison, and five
of the sewers to be selected in accordance with the Board's decision,
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other
employment rights and privileges; and make them whole for any
loss of pay each may have suffered by reason of the discrimina-
tion against her.
All of our employees are free to become and remain, or to refrain
from becoming or remaining members of, any labor organization,
except to the extent that such right may be affected by an agreement
authorized by Section 8(a) (3) of the Act.
VOGUE LINGERIE, INC.,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
These proceedings authorized and conducted under Section 10 of the Labor
Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act,
were heard before the duly designated Trial Examiner in Williamsport, Penn-
sylvania, on July 8, 9, 10, 11, 16, 17, and 18, 1958. Upon charges filed on August
19, 1957, as amended on October 1, 1957, by International Ladies' Garment
Workers' Union, Local 225, herein called the Union, the General Counsel of
the National Labor Relations Board on May 14, 1958, issued a complaint against
Vogue Lingerie, Inc., herein called Respondent Company, alleging that said
Respondent engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a) (1) and (3) of the Act, affecting commerce within the meaning of
Section 2(6) and (7) of the Act. The complaint more specifically in substance
alleges that Respondent has (1) interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act by interrogation
concerning their union membership and activities, and threatening them with
loss of employment if they engaged in a strike; and (2) discriminated in regard
to hire and tenure of employment to discourage membership in a labor organization
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by discharging and thereafter refusing to reinstate Sylvia Robison and other em-
ployees for the reason that they joined and assisted the Union and engaged in
concerted activities for the purpose of mutual aid and protection.
Copies of the charges , complaint , notice of hearing, and other pertinent processes
were duly served by registered mail. upon the Respondent Company and other
parties in interest . In due course the Respondent filed an answer substantially
denying all allegations of unfair labor practices.
Pursuant to notice, all parties appeared at the hearing and were represented
by counsel . Full opportunity was afforded all parties to be heard , to introduce
testimony and other evidence pertinent to the issues involved, to examine and
cross-examine witnesses , to present oral argument on the record , and thereafter
to file with the Trial Examiner written briefs and proposed findings of fact and
conclusions of law. Oral argument and written briefs submitted by counsel for
the General Counsel and the Respondent have been given due consideration.
Upon the entire record in the case , and from observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT COMPANY
Vogue Lingerie , Inc., is a corporation organized and existing by virtue of the laws
of the State of New York-L. A. Greenberg of New York City is president of
the corporation ; his wife, Susie Greenberg , is secretary ; and their son-in-law,
Hamilton Fisher, is assistant secretary . Under the general supervision of a local
manager or superintendent , Respondent Company is engaged in the manufacture of
ladies' garments at a production plant in Williamsport , Pennsylvania . This plant
consists of a one-story brick building wherein all operations are conducted , including
a cutting room , sewing room, shipping department , and conventional facilities
such as cafeteria , restrooms , etc. The primary operation involved in this case
is the sewing room , which is equipped with sewing machines and other fixtures
incident to sewing operations.
In the course and conduct of its business at the Williamsport plant, Respondent
annually processes , fabricates , and ships therefrom to points outside the Common-
wealth of Pennsylvania finished products valued in excess of $50,000. It is admitted
and I find that Respondent is engaged in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union, Local 225, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Supervision at Williamsport plant
1. Overall plant management
Prior to March 1955, Edward Fleckenstein was employed as plant superintendent
and manager for a period of approximately 9 years. He was succeeded by M. Z.
Dworkin. In 1956 Superintendent Dworkin was stricken by a serious illness and
was committed to a hospital for a protracted period of time , during which Hamilton
Fisher assumed all responsibilities as plant superintendent and manager. After
discharge from the hospital and a period of convalescence , Dworkin returned to
the plant in a perfunctory status without supervisory authority, and puttered about
the factory as he pleased. On or about February 8, 1957, Respondent Company
employed Arthur Greenberg I in the capacity of plant manager, who thereafter
(jointly with Hamilton Fisher ) until January 1958 exercised the duties and respon-
sibilities of that position with respect to the plant at Williamsport. Throughout the
summer of 1957, Arthur Greenberg and Hamilton Fisher alternated on a weekly
basis in overseeing operations at the plant, commuting from New York City for
the performance of their managerial functions . Greenberg resigned in the early
part of 1958 , and obtained employment with Sidney Greenberg , Inc., in New
York City, and Hamilton Fisher continued to the present time his duties and
responsibilities as manager and overseer of the factory.
1 Arthur Greenberg is the son of Sidney Greenberg , principal owner of Sidney Greenberg,
Inc., of New York City , major contract customer of Vogue Lingerie, Inc.
VOGUE LINGERIE, INC. 1017
Prior to 1958, Respondent Company maintained a sales department of its own
with showrooms in New York City in addition to contract manufacturing for
other sales agencies. On or about January 1, 1958, Respondent discontinued
all sales activities of its own products, and total production for other agencies
declined approximately 35 to 50 percent. Practically all production in the first half
of 1958 was the fabrication of garments under a trade label ("Joan Starr") for
Sidney Greenberg, Inc. The total number of people employed in the plant de-
creased from a maximum of 240 on December 22, 1957, to approximately 140
at the time of hearing in this case. From a total of 214 production and maintenance
employees on the payroll as of March 1, 1958, the number has since been succes-
sively reduced to 173 on March 15, to 163 on March 29, to 160 on April 26,
to 146 on May 24, and to 138 in July 1958.
2. Sewing room operations
Probably the major facility within the plant of Respondent at Williamsport is
the sewing room, wherein only women are employed primarily as sewing machine
operators.2 Within this room, approximately 150 feet long and 100 feet wide,
two long rows of sewing machines are separated by a row of bins, which divides
the sewing operations into two major divisions or departments-one for the fabrica-
tion of nightwear, gowns, etc., and the other for fabrication of slips and petticoats.
Velda Hanford is head floor supervisor in charge of overall operations.
Since the fabrication of garments consists of a series of sewing operations,
the sewing room is subdivided into sections loosely identified by the type of work
performed, such as gowns, holiday nightwear, slips, lace running, bartacking,
straps, buckles, zig-zag, inspection, pressing, packing, etc. Operators are assigned
as sectional groups to work under the supervision and direction of a floorgirl or
floorlady, and are usually paid at piecework rates. Floorladies are paid an hourly
wage and guaranteed full-time employment for 40 hours per week without deduction
for excusable absences . They also receive vacation pay, sick leave, and a Christmas
bonus.
Ready-cut materials from the cutting room are stored in the bins between the rows
of sewing machines. From these bins the floorladies select materials, deliver them
to the operators within their respective sections , and give necessary instructions
with respect to the work to be performed thereon. They are responsible for
the maintenance of orderly behavior and efficiency of operations within their
respective sections, but their disciplinary authority is limited to instructions and
admonition. They have no authority to hire, fire, replace, or suspend employees
under their supervision without consulting the head floor supervisor in charge of
the entire sewing room. With respect to matters beyond their control, they report
and make recommendations to Head Floor Supervisor Velda Hanford for investiga-
tion and action thereon. Respondent's employment and assignment of floorladies
to sections of its sewing room during the spring and summer of 1957 were as follows:
Elsie Dyroff__________________________________ Lace running section.
Ida Hamm___________________________________ Pressing and packing section.
Margaret Hannan_____________________________ Slip section.
Margaret Reidel______________________________ Slip section.
Ellen Marcey________________________________ Zig-zag section.
Mary Mutschler______________________________ Holiday nightwear section.
Sylvia Robison_______________________________ Straps and buckles section.
C. Rundell___________________________________ Inspection section.
Ruth Walters_________________________________ Gown section.
The Respondent asserts and contends that all floorladies employed in its sewing
room are supervisors-that with respect to their respective sections each of them
exercises identical responsibilities and authority. Counsel for the General Counsel
adopted that position except as to Sylvia Robison. It is clear from all the evidence
in this case that all floorladies employed by Respondent in its sewing room have
authority in the interest of the employer to assign , transfer from one machine to
another, and responsibly direct other employees in the performance of their work-
to make effective recommendations with respect to the hire, tenure of employment,
and discipline of employees within their respective sections-and that the exercise
of such authority is snot of a merely routine or clerical nature, but requires the use
of independent judgment. I find, therefore, that during the period pertinent to
2 Other facilities within the plant include a cutting room and shipping department,
wherein only men are employed, and are not concerned in this case.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case, Elsie Dyroff, Ida Hamm, Margaret Hannan, Margaret Reidel, Ellen
Marcey, Mary Mutschler, Sylvia Robison, C. Rundell, Ruth Walters, and Velda
Hanford were supervisors within the meaning of Section 2 (11) of the Act.3
Under the title "LIMITATIONS" the Labor Management Relations Act, 1947,
provides:
SEC. 14(a) Nothing herein shall prohibit any individual employed , as a
supervisor from becoming or remaining a member of a labor organization, but
no employer subject to this Act shall be compelled to deem individuals defined
herein as supervisors as employees for the purpose of any law, either national
or local, relating to collective bargaining.
B. Employment and discharge of Sylvia Robison
Sylvia Robison was first employed by Respondent on August 30, 1936, and worked
periodically thereafter in the sewing room as a sewing machine operator and bundle
girl until promoted in 1953 or 1954, to the position of a section floorlady to direct
the work of other employees. In that position her duties and responsibilities were
the same as all other floorladies next in authority to and under the overall control
of Head Supervisor Velda Hanford. As such floorlady she normally directed the
work of 15 to 18 sewing machine operators, but by reason of transfers, layoff, and
other adjustments her section was reduced to 4 or 5 workers in July 1957.
From the testimony of General Organizer Robert Wollk, it appears that the Union
started organizational work in the spring of 1957 by interviewing employees of the
Respondent in their homes, distributing leaflets at entrances to the plant, and hold-
ing group meetings during offduty hours away from the factory premises. Floorlady
Sylvia Robison attended these meetings and otherwise participated in the organiza-
tional activities by signing a union card and encouraging other employees to join
the Union.
Sylvia Robison admits in her testimony that she engaged in union activities both
inside and outside the plant-that she did not consider herself a supervisor, although
called into conference with the plant manager (Arthur Greenberg) along with Head
Supervisor Velda Hanford and all the floorladies-that during working hours she
obtained the signature of Victoria Jones on a union card, and discussed the subject
with Bertha Stecker, and Margaret Reidel-that she talked to others during break
periods and infrequently at their machines. When questioned about her activities,
she complained that she had not received a promised raise in pay, and told Manager
Arthur Greenberg that it was her own business what she did on her own time;
whereupon, Greenberg said this is a free country-that she could do anything she
pleased, but could not engage in organizing (a union) on his time and on his property.
Head Supervisor Velda Hanford credibly testified that she observed the activities
of Floorlady Robison, but took no action about it until she reported the matter to
Plant Manager Greenberg in May or June 1957-that it was reported to her that
Robison was dissatisfied with her job and was soliciting membership in the Union.
During this period she observed that Robison spent much time away from her
own section talking to other employees all over the sewing room, and neglected her
work by leaving the girls under her supervision to shift for themselves.4
Plant Manager Arthur Greenberg credibly testified that during May and June
1957, he called Sylvia Robison into his office on two or more occasions to discuss
her derelictions and activities-that she complained of being underpaid, and he
suggested that she assume the additional responsibilities of checking out and keeping
a daily inventory of production in the sewing room to relieve other floorladies of
such work. He admonished her about engaging in union activities by stating in
substance that it was a free country-that if she wanted a union, to go out and fight
for it-to stand -on a box and shout as much as she pleased, but not to do it on
company time, because he wanted a day's work. He agreed to give her a raise if
she would assume additional duties and responsibilities, but upon investigation found
that she failed to do so. On August 7, 1957, he called Sylvia Robison into hisdffice
and laid her off indefinitely on the theory that work was slack, so that she would
be eligible for unemployment compensation until she obtained another job. Ad-
3 See L & H Shirt Co., Inc., 84 NLRB 248.
4 The testimony of Velda Hanford that Sylvia Robison neglected her work by leaving
her section to engage in conversation with other employees outside her own section was
amply corroborated by Ruth Walters, Ellen Marcey, Margaret Reidel, Margaret Hannan,
Mary Mutschler, Bertha Stecker, Helen Flanagan, Victoria Jones, Geraldine Lange,
Veronica Grabowski, Hazel Boyles, Harriett Fessler, Doris Phillips, Lois Rosevear, Dove
Neeper, Leah Heitzenrether, Beatrice Davis, Blanche Shortridge, and Della Roup.
VOGUE LINGERIE, INC. 1019
mittedly her termination was tantamount to final discharge, because he had no
intention of recalling her to duty. Thereafter, Sidney G. Handler, of Harrisburg,
Pennsylvania, as attorney for the Union, filed a charge against Respondent Com-
pany on August 19, 1957, alleging discriminatory discharges and other violations of
Section 8(a)(1) and (3) of the Act. Prior to service of this charge Organizers
Robert Wollk and Velma Snyder obtained an interview with Plant Manager Arthur
Greenberg at his office early in the afternoon of August 20, 1957. The union-shop
committee composed of Mabel B. King, Marie King, Agnes Brown, Mildred Liver-
more, Kate Reading, and Blanche Shortridge were called into the conference to dis-
cuss the situation. The union representatives there contended that Sylvia Robison
had been discharged because of her organizational activities, and threatened to file
charges of unfair labor practices against Respondent Company. In the course of dis-
cussion, General Organizer Robert Wollk suggested that Respondent recognize and
negotiate a collective-bargaining agreement with the Union. Plant Manager Green-
berg told Wollk that he would not sign any contract with the Union unless the girls
indicated by ballot that they wanted a union. Not knowing that charges had already
been filed, Manager Greenberg agreed to reemploy Sylvia Robison as a machine oper-
ator rather than floorlady, if she desired such employment. Later that afternoon he
received by registered mail a copy of the charge previously filed. Upon receipt
of the charge he conferred by telephone with his superiors in New York City, and
retained a local lawyer (Joseph M. McNerney). In the meantime he authorized
Head Supervisor Velda Hanford to reemploy Sylvia Robison as a sewing machine
operator in the sewing room.
Sylvia Robison credibly testified that she received instructions from Organizer
Velma Snyder to report for work at the sewing room on August 21, 1957. There-
upon, she reported to Head Supervisor Velda Hanford at starting time and inquired
what to do. Supervisor Hanford said she had not yet decided, but assigned her to
a binding machine. Floorlady Margaret Hannan brought materials to the machine
and gave instructions with respect to the work, and Robison started to sewing.
Shortly thereafter she was called to the office of Plant Manager Greenberg and
dismissed from further employment. On the next day following the final dismissal
of Sylvia Robison, General Organizer Wollk called Plant Manager Greenberg, and
requested an explanation. Greenberg refused to negotiate further about the matter,
and referred Wollk to Company Attorney Joseph M. McNerney.
Conclusions as to Violation of 8(a)(3)
Having found that Sylvia Robison, when laid off or discharged on August 7, 1957,
was a supervisor within the meaning of Section 2(11) of the Act, it is conceded by
counsel for the General Counsel that Section 8(a)(3) provides no protection for
supervisors regardless of the motive of Respondent. It is admitted by Plant Man-
ager Arthur Greenberg that because of threats by the Union to file a charge of
unfair labor practices, he agreed on August 20, 1957, to rehire Robison as a sewing
machine operator, but thereafter refused to consummate the agreement upon advice
of his attorney when a charge was subsequently served upon him by registered mail.5
I am therefore constrained to find that the termination of Sylvia Robison both on
August 7, 1957, and on August 21, 1957, was a continuation of the same situation
and not an unfair labor practice within the meaning of Section 8(a)(3) of the Act,
because she was a. supervisor within the meaning of Section 2(11) .6 In the absence
of other conduct by the Respondent prior to or accompanying the discharge of
Floorlady Sylvia Robison, I cannot find under the circumstances of this case that
her termination interfered with, restrained, or coerced employees in the exercise
of the rights guaranteed in Section 7 of the Act. It will be recommended, therefore,
that all allegations of the complaint insofar as they pertain to the termination and
discharge of this supervisor be dismissed.
C. Interference, restraint, and coercion
After Sylvia Robison left the plant on August 21, 1957, Respondent Company
assembled all.. employees of the sewing room at a meeting in the plant cafeteria to
hear a speech by Company Attorney Joseph M. McNerney with respect to company
policy. At this meeting in the presence of Plant Managers Hamilton Fisher and
5 It was not alleged in the complaint or litigated in this case that refusal to rehire under
such circumstances was a violation of Section 8(a) (4) of the Act.
9 See Roxanna of Texas, Inc., 98 NLRB 1151, 1174 (Rosa M. Church) ; N.L.R.B. v.
Inter-City Advertising Co. of Charlotte, N.C. 1190 F. 2d 420 (C.A. 4).
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arthur Greenberg, Attorney McNerney told the employees that the Respondent
Company was opposed to this or any other union organization, and had a legal
right to take such a position. He discussed the history of the particular union in-
volved, and told about his experience with that organization for a period of past
years, stating that the International Ladies' Garment Workers' Union was notori-
ous for calling recognition strikes without filing representation petitions with the
National Labor Relations Board for a collective-bargaining election. He pointed
out one case in Lewisburg, Pennsylvania, where this Union forced a company to
sign a contract by picketing its showrooms in New York City; and another recent
case in Punxsutawney where it had failed to close down a company by means of a
recognition strike. He asserted that the approach of the Union was improper, but
if a majority wanted a union, Respondent Company would bargain after such
union was certified by the National Labor Relations Board. He told the employees
about the cost of having a union to represent them, and that they would be re-
quired to pay for such representation by way of dues and assessments. He explained
the significance of signing a union card-that it did not obligate them to vote either
for or against a union-that if an election was held, they would be free to make
up their own minds, because it would be conducted by a staff member of the
National Labor Relations Board-that the ballots would be secret, and no one
would know how they voted. He explained that the Union was required to sign
up 30 percent of the employees in order to file a petition for such 'a representation
election, and if it won such election, the Union could not discriminate against any
employee for refusal to sign. He warned the employees not to count on rumors
that usually accompany an organizational campaign, and invited them to see Plant
Managers Fisher and Greenberg and get the facts when they had any questions.
Attorney McNerney also explained the significance of and asserted that the Union
would no doubt bargain for a union shop, but under no circumstances would Re-
spondent agree to a union shop.
On September 6, 1957, Respondent Company again called a meeting of all em-
ployees in the plant cafeteria to hear a second speech by Company Attorney
Joseph M. McNerney. At that assembly the attorney said there were rumors that
the Union was preparing to call an organizational strike, and that the Company
was opposed to such activities-that the Union ought to file a petition with the
National Labor Relations Board and let the question of representation be decided by
secret ballot. He told the employees that all who joined such a strike would be
classified as economic strikers, and under the law could be replaced by others in
their jobs-that Respondent Company would continue operation of the plant
until forced to close down-that all employees would receive adequate police pro-
tection, and be free to come in to work.?
The strike began on Tuesday, September 10, 1957, and approximately 30 em-
ployees from a total in excess of 200, including a few previously laid off, failed to
report for work. A picket line was set up in front of the plant and remained effec-
tive day and night until November 20, 1957. Shortly after the strike began on
Tuesday morning, Plant Manager Arthur Greenberg again assembled all em
ployees (except absent strikers) in the plant cafeteria, thanked them for reporting
for work despite the strike, and then introduced Attorney Joseph M. McNerney
to make his third speech. McNerney thereupon repeated much that had been
said in his previous speeches concerning methods employed by the Union, and again
explained the nature of an economic strike and the vulnerability of such strikers to
replacement in their jobs. He exhorted employees present to persuade their friends
on the picket line to return to work, warned them not to engage in altercations
with the strikers, promised that the plant would remain open, and that police pro-
tection would be provided for all that came in to work.
With respect to speeches made to employees by Attorney McNerney, six strikers
as witnesses 8 for the General Counsel testified that McNerney made statements to
the effect that Respondent Company would move out and close down its plant if
the Union came in. To the contrary, Attorney McNerney himself creditably testi-
fied that he made no references or threats whatever that Respondent would close
or move its plant if the Union succeeded in organizing the employees. His testimony
in that respect was corroborated by a large number of those present at aforesaid
assemblies of employees in the plant cafeteria, including Hamilton Fisher, Arthur
7 See Sargent R Co., 99 NLRB 131.8 ; Armstrong Cork Co., 103 NLRB 133.
8 Mildred King, Ruth Keller, Marguerite Brungard, Alma Seylor, Evelyn Hoover, and
Galena Shemory.
VOGUE LINGERIE, INC. 1021
Greenberg , Velda Hanford , Margaret Reidel , Ruth Walters, Margaret Hannan,
Bertha Stecker , Blanche Burger, Geraldine Lange, Veronica Grabowski, Hazel
Boyles, Harriett Fessler , Doris Phillips, Lois Rosevear , Dove Neeper, Mary Mut-
schler, Leah Heitzenrether , and Beatrice Davis. In view of such a preponderance
of testimony to the contrary, I cannot find that Company Attorney Joseph M.
McNerney interfered with, restrained , or coerced employees by threats of closing
down or moving the plant of Respondent Company if the Union succeeded in its
organizational efforts. To the contrary, he insisted that despite rumors of a strike,
the plant would remain in operation and all employees desiring to work would be
afforded police protection . It appears that this attorney spoke from prepared
notes, and by reason of his past experience in labor relations carefully avoided any
threats of reprisal or force or promise of benefit in expressing his views , arguments,
and opinions with respect to the policy and legal rights of Respondent Company.
In addition to the speeches of Attorney McNerney, it is contended by counsel
for the General Counsel that prior to the strike, M. Z. Dworkin ( former plant
superintendent ), Head Supervisor Velda Hanford, and Floorladies Margaret Hannan,
Margaret Reidel, and Ruth Walters engaged in conduct and activities that inter-
fered with , restrained , and coerced employees in the exercise of rights guaranteed
in Section 7 of the Act. Mabel Karbinas testified (by offer of proof ) that M. Z.
Dworkin did nothing but walk around in the plant , and watch the girls-that he
would report to the floorladies how long the girls stayed in the restroom , etc.,-that
he would stop at their machines, but never gave any instructions-that on Thursday
or Friday before the strike "he had a big list of names of the girls that had buttons
on-that he came down the aisle and shook his finger at us and told us we would
be sorry for wearing them." Dorotha Livermore testified that she overheard a con-
versation between Velda Hanford, Margaret Hannan , and Margaret Reidel in
which Hanford said that "Mr. Greenberg wanted the names that had signed union
cards or was in the union activities of any kind , and that they were supposed to try
to get them , the names , if they could"-that "After Velda had walked away, Margaret
[Reidel] came over to the machine and asked me if I had signed a union card."
Mabel King testified that after discharge Sylvia Robison came to her in the plant
to inquire about her grandson-that when Sylvia walked away , Floorlady Margaret
Reidel came up and said "What did she want? What was she doing, talking union
again?" Marguerite Brungard testified that Floorlady Margaret Reidel told her
that she heard that Sylvia Robison was fired for union activities, and that us girls
better be careful , because we would all be fired for the same reason . Agnes Brown
testified that she solicited both Margaret Hannan and Margaret Reidel to join the
Union, and they refused to do so, saying they did not like this confusion-that it
was a terrible thing to try to organize a union and that the Union would never get
in the plant. Marie King testified that she heard Mildred King tell Floorlady
Margaret Hannan that if they had a union , the Company could not reduce their
bonus; and Hannan said "Well, it seems like they are asking for it at every turn.
I sure am glad I'm as old as I am because I couldn't go to another factory and get
another job at my age. I am almost old enough to draw social security , and if the
Union comes in they will close the factory down-it would mean closing the factory
down." Mina Bertin testified that on the day before the strike , Floorlady Ruth
Walters went down the line taking everybody's phone numbers , and said that they
were expecting a picket line tomorrow-that all girls who joined the strike would
be replaced and have no jobs any more-that Mr. Greenberg knows everybody that
signed for the Union , and would do everything to keep it out of the plant.
In denial and explanation of the foregoing conduct of supervisory personnel, the
Respondent Company introduced testimony and evidence , as follows:
Plant Managers Hamilton Fisher and Arthur Greenberg credibly testified in
substance that M. Z. Dworkin by reason of illness and affliction was incapable of
performing his duties as a supervisor , and was relieved of all authority about
February 1957, when Arthur Greenberg came to the plant . Thereafter, Dworkin
was classified as a disabled employee, and instructed not to talk to employees or
exercise supervisory authority , because his mental and physical abilities were im-
paired. Velda Hanford credibly denied any conversation with Margaret Hannan
and Margaret Reidel in which she instructed either of them to procure any in-
formation to identify by name employees who had signed union cards or engaged
in other organizational activities . Margaret Reidel credibly testified that she never
interrogated any employee concerning membership in the Union -that Velda
Hanford never instructed her to do so , and she could not recall any conversation
with Velda Hanford and Margaret Hannan near the work station of Dorotha
Livermore . She denied making any statement that any girl found wearing a union
button would be fired-that she ever made any inquiry of Mabel King , concerning
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a conversation with Sylvia Robison after discharge in the plant-or that she had
ever discussed the Union with Agnes Brown. She also denied having ever made
any statement within the hearing of employees to the effect that any girl found
wearing a union button would be fired. Margaret Hannan credibly testified that
she never discussed the Union with any employees, except that on one occasion she
inquired of Agnes Brown whether she had heard that any girl could could pick her
job if the Union came in-that Velda Hanford never instructed her to interrogate
employees about their union activities-that she never told Mildred King that the
plant would close down if the Union came in-that she never discriminated against
Mildred King in the assignment of work, but treated all girls the same with respect
to desirable and undesirable work. Ruth Walters credibly testified that she never
made any statement to the effect that the girls would be fired for wearing union
buttons-that she did not make a list of telephone numbers because of union ac-
tivities, but customarily recorded the telephone numbers of all girls in her section
so that she could call them and make inquiries when they failed to report for
work, etc.,-that she never made or heard anyone else make any statement about
the plant closing down. Bertha Stecker credibly testified that she was a machine
operator in the section of Floorlady Ruth Walters-that on one occasion she tried
to ask Walters some questions about the Union, and received the reply "I can't say"-
that she never heard Walters make any statement to the effect that the girls would
be fired for wearing union buttons-that Walters never talked about the union
activities in her presence-that she did not hear Walters tell any girls in her section
that they would be discharged for not coming in to work. This witness testified
further that she heard rumors of a strike from the girls talking among themselves,
but it was not official-just general talk.
Conclusions as to Independent Violations of 8(a)(1)
With respect to the speeches of Company Attorney Joseph M. McNerney, I find
that the views, arguments, and opinions expressed therein on behalf of Respondent
Company contained no threat of reprisal or force or promise of benefit, and are pro-
tected as free speech under the provisions of Section 8(c) of the Act.
With respect to the conduct of the former superintendent, M. Z. Dworkin, I find
that he was not at that time a supervisor within the meaning of Section 2(11) of
the Act-that under the circumstances presently involved, such conduct contained
no threat of reprisal or force or promise of benefit as contemplated by Section 8(c)
of the Act-and in any event, such incident was too isolated in character to con-
stitute or be evidence of an unfair labor practice under any of the provisions of
the Act. 9
With respect to the alleged conversation overheard by Dorotha Livermore and
her subsequent interrogation about signing a union card, I credit the testimony of
Velda Hanford, Margaret Hannan, and Margaret Reidel, and find that such incidents
did not happen in the manner and form stated, did not contain any threat of reprisal
or force or promise of benefit, and did not under the circumstances of this case con-
stitute interference, restraint, or coercion of employees in the exercise of the rights
guaranteed in Section 7 of the Act.
With respect to the alleged inquiry of Forelady Margaret Reidel concerning the
subject of a conversation between Mabel King and Sylvia Robison upon the
latter's return to the plant after discharge, I find no substantial evidence upon
which to base any finding of interference, restraint, or coercion of employees in
the exercise of the rights guaranteed in Section 7 of the Act.
With respect to the alleged statement by Margaret Reidel to Marguerite Brungard,
it is apparent that such a statement was merely the repetition of gossip in the plant
coupled with an expression of opinion of a minor supervisor without authority to
hire or fire employees, and contained no threat of reprisal or force or promise of
benefit. Such statement, if made, was isolated in character and unworthy as a
basis of a finding of an unfair labor practice against Respondent Company.
With respect to alleged statements made by Foreladies Margaret Hannan and
Margaret Reidel to Agnes Brown in refusing to join the Union and expressing their
reasons for such refusal, I find no evidence of interference, restraint, or coercion of
employees in the exercise of the rights guaranteed in Section 7 of the Act, and such
statements clearly fall within the protection of Section 8(c) as free speech; because
they contained no threat of reprisal or force or promise of benefit.
9 See Fontaine Converting Works, Inc., 77 NLRB 1386, where the Board reversed a
finding of a Trial Examiner that the words "would be sorry" contained no threat of
reprisal or promise of benefit, and was therefore no violation of the Act.
VOGUE LINGERIE, INC. 1023
With respect to the statement alleged to have been made by Forelady Margaret
Hannan to Mildred King and overheard by Marie King, I credit the testimony of
Margaret Hannan that she never made any statement to Mildred King to the effect
that the plant would close down if the Union came in.
With respect to the conduct of Floorlady Ruth Walters on the day before the
strike, it is not denied that she recorded the telephone numbers of girls working
in her section and said they were expecting a picket line tomorrow . I find nothing
coercive in such conduct . Assuming that she also told some of the girls that they
would be replaced if they went out on strike-that Mr. Greenberg knew everybody
that signed up with the Union , and would do everything to keep it out of the plant-
does not, under the circumstances of this case , constitute a threat of reprisal or
force or promise of benefit . It is well established by decisions of the Board and
the courts that economic strikers may legally be replaced and reinstatement will
not thereafter be required except in case of strikes caused or prolonged by unfair
labor practices of the employer . I credit the testimony of Ruth Walters that she
did not make statements to the effect that the girls would be discharged for wearing
union buttons or that the plant would be closed down voluntarily as a reprisal
against union activities . Consequently , I find that the conduct of Floorlady Ruth
Walters did not interfere with , restrain , or coerce employees in the exercise of the
rights guaranteed in Section 7 of the Act.
Objectives and Results of the Strike
Following the discharge and refusal of Respondent Company to reemploy Sylvia
Robison on August 21, 1957, the Union continued its organizational activities by
visiting employees in their homes and conducting group meetings. According to
Organizer Robert Wollk, the charge filed on August 19 was a routine matter.
Finally on Saturday , September 7, 1957, the union organizers at a meeting in the
Union Tea House with members of the shop committee ( Marie King, Mildred King,
Mabel King , and Mildred Livermore ) adopted the plan of calling a general meeting
of employees to promote organizational objectives . At reporting time on Tuesday
morning, September 10, 1957, members of the union shop committee and organizers
stood at entrances to the plant and solicited the workers to stay out and attend
a general meeting at the nearby hall of the meat cutters union. Approximately 30
employees including members of the committee and union organizers attended
this meeting at which Organizer Robert Wollk explained that an unfair labor
practice charge had already been filed, but there would be a delay of several months
involved in an investigation and hearing-that the employees were faced with the
alternative of going back to work and hope for the best or engage in a prolonged
unfair labor practice strike-that the Union would support a strike with its leader-
ship advice and financial benefits for the strikers-that the decision was up to them.
Thereupon , all union organizers withdrew from the room to permit free discussion
and a vote on the subject . The assembly voted in favor of a strike and reported
their decision to the waiting union representatives . Thereupon , Robert Wollk by
telephone procured necessary authorization from the union director of organiza-
tion and called an official strike. At approximately 10:30 a.m. (same day) the
Union established a picket line along the street in front of Respondent 's plant.
Picket signs carried the following inscription:
VOGUE LINGERIE WORKERS ON STRIKE IN
PROTEST OF UNFAIR LABOR PRACTICES
Thirty employees from the sewing room joined
follows: 10
the strike from its inception, as
Evelyn Hoover Beth Gamble Agnes Brown
Alma Seylor Alice Ridge Hughes Mildred G. Livermore
Mabel ' Karbinas Mabel B. King Edith Imes
Ruth A. Crosley Anna McCleester Marie King
Helen Berfield Mattie Grove Beverly K. Beach
Mildred E. King Sara Nichart Ruth Keller
Margaret Zeiber Leona D. Sessaman Dorotha Livermore
Ann Malner Phyllis J. Dingier Mabel E. Shoemaker
Anna M. Evans Mina Bertin Helen Geer
Dorothy Fleckenstein Catherine H. Reading Marguerite Brungard
10 At a later date Galena Shemory quit work in the plant and joined the strikers in the
picket line on October 4, 1957.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 15, 1957, the Union published in the "Grit," a newspaper of general
circulation in the area of Williamsport, Pennsylvania , a notice in explanation of
the strike , as follows:
WHY STRIKE?
Citizens of the Williamsport Area,
the Striking Workers of the
VOGUE LINGERIE CO.
Put their Case Before You.
The employer, Mr. Greenberg, of New York City, claims to respect the
American right of his Employees to organize a union of their choice.
Yet he knows full well that a National Labor Relation Board election cannot
be held while unfair labor practice charges are pending against his firm. This
is the law.
Therefore to avoid delay it was proposed that three clergymen of different
faiths interview each production worker of the plant individually to determine
whether they signed union cards. The decision of the clergymen concerning
the will of the people would be binding to all parties concerned. This Mr.
Greenberg refused. Why?
We intend to stand up for our rights. The striking wives and mothers of
Vogue appeal for community support and cooperation for a better Williamsport.
Thank you,
THE STRIKE COMMITTEE OF VOGUE LINGERIE CO.
I.L.G.W.U.-AF of L-CIO Staff Rep. Robert Wollk
On September 18, 1957, Respondent Company sent by registered mail to each
individual striker except Galena Shemory, the following letter:
You are hereby notified that you are no longer an employee of Vogue
Lingerie Company, since you have been replaced by another employee.
We are sorry to inform you of this action, but you must admit that you
were warned that economic strikers can be replaced.
The Union organizers are misleading you. Don't be a tool for them. Tell
them to use the orderly process set up by the National Labor Relations Board
in their attempt to organize our employees.
Very truly yours,
VOGUE LINGERIE COMPANY, INC.,
ARTHUR GREENBERG, Plant Mgr.
The plant continued in operation without interruption , and from uncontradicted
testimony of witnesses for the Respondent it appears that all strikers as of September
18, 1957, had been replaced by hiring new employees and recalling some previously
laid off. It was a busy season , and Respondent continued to hire additional em-
ployees throughout the months of September, October, November, and December
1957. Extracts from company payroll records introduced in evidence by the General
Counsel (General Counsel's Exhibit No. 5), show 30 replacements recalled or newly
hired durirng the period of September 9 to 18, 1957, inclusive, as follows:
(9- 9-57)-P. Schmonder (recalled) (9-12-57) -Imogene McKee
(9- 9-57)-S. Wagner (9-12-57)-Donna K. Snyder
(9-10-57) -Alberta Newcomer (9-12-57)-Eleanor Swartz
(9-11-57)-Patricia Baney (recalled) (9-12-57)-Ocie Bortz
(9-11-57)-Martha Cupp (9-12-57)-V. Cashner
(9-11-57)-Leatrice Dullen (9-12-57)-A. Veley (recalled)
(9-11-57)-Doris Fisher (recalled) (9-14-57)-A. Kramer (recalled)
(9-11-57)-Vera Gingery (9-16-57) -Lucille Bletz
(9-11-57)-Lillian Martin (9-16-57)-Rita Cass
(9-11-57)-Susie Rhinehart (9-16-57)-Miriam Geisewhite
(9-11-57)-M. Rupert (recalled) (9-16-57) -Patrice Hoover
(9-12-57)-Julie Bezek (9-16-57)-S. Hoover (recalled)
(9-12-57)-Alice Dunlap (9-16-57)-R. Pferman (recalled)
(9-12-57)-Pauline Jodun (9-16-57) -Beulah Winans
(9-12-57)-Shirley Kreidler (9-16-57)-Joann Yocum
On November 20, 1957, the picket line was withdrawn because of inclement
weather and the approaching Christmas season with announcement by the Union
that the strike would continue and that picketing would be resumed as soon as
VOGUE LINGERIE, INC. 1025
possible. Organizer Robert Wollk told Plant Manager Arthur Greenberg that picket-
ing would be resumed probably in January or February 1958. Greenberg inquired
"What about the people," and Wollk asserted that they would not starve-that
strike benefits would continue-and that the Union would get jobs for them, if
needed. Many of the strikers did thereafter obtain employment in other plants with
the assistance of the Union. Neither the Union or any of the original strikers
named above, except Galena Shemory, notified Respondent Company that they
were available or desired to return to work in the plant under any conditions what-
ever. Galena Shemory, however, immediately called Plant Manager Arthur Green-
berg on November 20, 1957, and pleaded with him to let her go back to work, but
he refused to furnish her further employment.
At a union meeting on March 11, 1958, representatives of the Union advised the
strikers to file applications with Respondent Company for reemployment, if they
desired or preferred to work in the plant" On or soon after March 12, 1958, all
of the strikers as individuals or in small groups visited the office of the Respondent
and applied for work. In each case the Respondent informed them that there was
no work available-that they were not hiring any people at that time-and permitted
them to leave written applications on file for future consideration. Thereafter, on
March 19, 1958, Sidney G. Handler (attorney for Union) submitted a written appli-
cation by registered mail to Respondent Company requesting the unconditional em-
ployment of the entire group by name. Respondent Company replied by letter of
March 20, 1958, as follows:
HANDLER & ROSENBERG,
7 N. Front St.,
Harrisburg, Pa.
Attention: Mr. Sidney G. Handler
DEAR SIR: This will acknowledge your letter of March 19th.
At the present time we are not hiring any personnel as we have no jobs open.
However, the applications of the persons named in your communication will
be put in our file. At the proper time they will be given consideration along
with other applications on file, according to Company policy.
Very truly yours,
VOGUE LINGERIE CO. INC.,
HAMILTON B. FISHER, Plant Mgr.
HBF/I
Concluding Findings
Having found that Sylvia Robison at all times pertinent to this case was a super-
visor within the meaning of Section 2 (11) of the Act, I am by reason of the limita-
tions contained in Section 14(a) of the Act, constrained to find that Respondent
Company did not engage in unfair labor practices within the meaning of Section
8(a)(3) of the Act either by discharging her on August 7, 1957, or by refusing
thereafter to reemploy here as a sewing machine operator on August 21, 1957.
With respect to allegations in the complaint alleging that Respondent engaged
in certain independent violations of Sections 8(a)(1) the burden is on the General
Counsel to prove such violations by the greater weight of the evidence. Having
carefully weighed the testimony of all witnesses, and scrutinized the credibility there-
of, I find from a preponderance of the testimony, and the entire record in the case,
that Respondent Company did not by the conduct of Attorney Joseph M. McNerney,
M. Z. Dworkin, Velda Hanford, Margaret Hannan, Margaret Reidel, and Ruth Wal-
ters interfere with, restrain, or coerce its employees in the exercise of the rights guar-
anteed in Section 7 of the Act, and consequently has not thereby engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
Having found no unfair labor practices, as aforesaid, engaged in by Respondent
Company, it follows that the strike called by the Union on September 10, 1957, was
not caused or prolonged by unfair labor practices of the Employer. I find, there-
fore, that the work stoppage and picketing constituted an economic strike, and that
employees engaged therein were lawfully exercising the rights guaranteed to them
in Section 7 of the Act. It is well established, however, that in the absence of
unfair labor practices, an employer has the coordinate right to replace economic
strikers.
11 From testimony of Marie King, Helen Geer, and Ruth Crosley.
5 08889-60-vol. 123-66
1026 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
From a preponderance of the evidence in this case, I find that the origonal 30
strikers named in Appendix A of the complaint, excepting Galena Shemory, were
effectively replaced in Respondent's plant by newly hired or recalled employees
prior to notice of replacement sent them by registered mail on September 18, 1957.
Thereby, these 30 strikers lost any right of reinstatement to which they might have
been entitled had they notified their employer that they were unconditionally ready
and willing to return to work. This they failed to do prior to March 12-19, 1958, at
which time the Respondent has shown by substantial and undisputed evidence that
it was reducing its working force and that no jobs were available. On March 1,
1958, Respondent had 214 employees, but on March 15, 1958, the number had
been reduced to 173.
With respect to Galena Shemory, however, it appears that she did not join the
strike until October 4, 1957-that when the picketing stopped on November 20,
1957, she promptly notified her employer that she was available and anxious to
unconditionally return to work. The record shows that on and after that date
Respondent recalled and newly hired employees, as follows:
(11-20-57)-Clara Donachy (sewing machine operator)
(I 1-21-57)-Sylvia Ryan (sewing machine operator)
(11-25-57) -Thelma Dunlap (sewing machine operator)
(12- 9-57)-S. Shaver (finisher)
(12-19-57)-D. Worthington (finisher)
( 2-19-58)-L. Winter (sewing machine operator)
In the absence of evidence or notice by the Respondent that Galena Shemory had
been effectively replaced prior to November 20, 1957, it must be presumed and
found from all the circumstances of this case that Respondent refused to reinstate
this employee because she had engaged in the strike and other concerted activities
in the exercise of the rights guaranteed in Section 7 of the Act, thereby discriminat-
ing in regard to hire or tenure of employment to discourage membership in a labor
organization in violation of Section 8(a)(3). Such conduct is also derivatively a
violation of Section 8(a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of Respondent Company set forth in section III, above, has a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tends to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent, Vogue Lingerie, Inc., discriminated in regard to
the hire or tenure of employment of Galena Shemory to discourage membership in
a labor organization, thereby interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, I shall recommend
that it cease and desist from such conduct and take certain affirmative action
designed to effectuate the policies of the Act.
Except as to the conduct of Respondent Company herein found to be a violation
of the Act, it is recommended that all other allegations of the complaint be dismissed.
Upon the basis of the foregoing findings of fact, and the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Ladies' Garment Workers' Union, Local 225, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire or tenure of employment of Galena
Shemory to discourage membership in :a labor organization, thereby interfering with,
restraining, and coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, Respondent Vogue Lingerie, Inc., engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]