Wallick and Schwalm Co.Download PDFNational Labor Relations Board - Board DecisionsAug 23, 195195 N.L.R.B. 1262 (N.L.R.B. 1951) Copy Citation 1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD SAM WALLICK AND SAM K. SCHWALM, PARTNERS, D/B/A `jTALLICK AND SCHWALM COMPANY; RITA SCHWALM, ADMINISTRATRIX OF THE ESTATE OF SAM K. SCHWALM, DECEASED; SAM WALLICK, SURVIVING PARTNER, D/B/A WALLICK AND SCHWALM COMPANY; WALLICK AND SCHWALM CORP.; AND SPRING MILLS APPAREL, INC. and INTERNA- TIONAL LADIES' GARMENT WORKERS' UNION, LOCAL 108, A. F. L. Case No. 6-CA-204. Aiigust 23,1951 Decision and Order On November 24, 1950, Trial Examiner Max M. Goldman 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 it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Re- spondent filed exceptions to the Intermediate Report and a supporting brief, and the General Counsel filed a brief in support of the Inter- mediate Report. The Respondent also requested oral argument. This request is hereby denied because, in our opinion, the record, exceptions, and briefs adequately present the issues and the positions of the parties. 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 In- termediate Report, the exceptions-and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the additions and modifi- cations discussed below. 1. The Trial Examiner found, and we agree, that beginning July 6, 1949, when the employees at the Respondent's Spring Mills plant reported for work after a strike, the Respondent violated Section 8 (a) (1) and (3) of the Act by refusing to operate the plant and assigning elsewhere the work which the Spring Mills employees would ordinarily have performed.2 In so finding, we, like the Trial Exami- 1 The Respondent contends that the Trial Examiner erred in admitting evidence that during a union organizing campaign at the Spring Mills plant in 1946, more than 3 years before the events covered by the complaint , the Respondent 's foreman told some of the employees that the Respondent would shut down their plant if it were organized. As the Board , in making its findings , has not relied on this evidence , the Respondent has not been prejudiced by its admission. 2 On July 5, the day of the strike, the Respondents sent home the 14 nonstrikers and prepared to transfer the unfinished garments then in the plant to other plants for comple- tion. As the record indicates that these garments were urgently needed, and that it was impossible to continue operations with only 14 employees , we do not find , nor did the Trial Examiner , that the Respondent 's conduct on July 5 was unlawful . On July 6. however, before any of this work was. transferred, all the employees , strikers and non- strikers , appeared at the plant ready for work at the usual time . We find that, by so 95 NLRB No. 185. WALLICK & - SCHWALM COMPANY 1263 ner, and for the reasons set forth in the Intermediate Report, reject the Respondent's contention that it did not reopen the plant on July 6, 1949, because of economic reasons and difficulties connected with the management of the plant, and-find, as did the Trial Exami ner, that its real reason was its opposition to the Union.3 2. Our finding as to the Respondent's discriminatory motive is based in part on the testimony of Osman, the Respondents' foreman, that he told Schwalm, one of the Respondent partners, on July 5, that the employees had contacted a union, and that Schwalm replied that the Respondent would close the plant rather than operate with a union. The Respondent contends that no finding should be based on this testimony-the only evidence that the Respondent knew.on Jill' 5 of any union activities on the part of its employees-because Schwalm's death before the hearing made it impossible to controvert the statement attributed to him. The Board is not precluded from considering as evidence state. ments attributed to deceased persons. It does, however, subject such testimony to the closest scrutiny before deciding what weight to give it.4 Here, the Trial Examiner found Osman a credible witness. Fur- thermore, although Osman's testimony as to Schwalm's statement is not directly corroborated, it is supported by other evidence of the Respondent's unwillingness to operate with a union. Thus, as the Trial Examiner found, Wallick, Schwalm's partner, told Osman on July 7 that he would have nothing to do with the: Union; shortly there- after, Wallick told Hoffmeier, one of a group of businessmen who were interested in the resumption of operations at the plant, that he would not or could not operate the plant with a union, and that the business- men should direct their efforts toward getting the employees to reject the Union if the plant was to be reopened; and the Respondent later assisted the businessmen in their efforts to secure from the employees resignations from the Union. In view of these circumstances, and on the record as a whole,.we credit Osman's"testimony as to Schwalm's statement to him, and- find, on the basis of this. statement, that the Respondent knew of the employees' union activities before the em- ployees applied for reinstatement on July 6. doing, they made an unconditional request for reinstatement . Andrews Company, 87 NLRB 379, 394. IIn analyzing the evidence with respect to the Respondent 's operations , the Trial Examiner noted , inter alia, that after the shutdown of the Spring Mills plant, the Respondent for the first time utilized the services of an outside firm to manufacture housecoats . The record shows, however, that these housecoats were a special type- of garment which the Respondent was not equipped to manufacture , and that comparatively few of them were made . We therefore place no significance on this minor change in Respondent 's usual method of operation . On the evidence as' a whole , however, we are convinced and find that , absent a discriminatory motive, the Respondent would have resumed the operation of its Spring Mills plant on July 6. 4 West Texas Utilities Company, Inc ., 94 NLRB 1638 ; The Linde Air Prodle6ts Company, 86 NLRB 1333 , 1337 ; Quarles Manufacturing Company, 83 NLRB 697,,699; Reynolds Wire Company, 26 NLRB 662 , enfd. 121 F. 2d 627 (C. A. 7). 1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Respondent contends in its brief that the purpose of the employees' strike on July 5, 1949, was not to further a cause of their own, but to protest the discharge of a foreman; that a strike for such -a reason is not a protected activity under the Act;,' that, consequently, when it closed the plant on July 5, as a result of such unprotected concerted activities, it committed no unfair labor practice; and that it was not under any statutory duty to reopen the Spring Mills plant to provide employment for the strikers. An employee who engages in unprotected activity becomes subject to discharge, but does not lose his status as an employee under the Act.e An employer may waive his right to discharge an employee for this reason.' Once he has made the waiver, an employer cannot later assert it as a valid reason for discharge or refusal to reinstate." Similarly, although employee participation in unprotected activities gives an employer the right to discharge for such conduct, the employer may act for entirely different reasons. If an employer in fact dis- charges an employee for discriminatory reasons, the circumstance that the employer might have discharged him for a valid reason, for ex- ample, participation in unprotected activities, is not subsequently available as a defense to the discriminatory discharge.9 In the present case, the defense that the employees had engaged in unprotected activities was not made in the Respondent's answer to the complaint or at the hearing before the Trial Examiner. It was raised for the first time, almost 2 years after the event, in the Respondent's brief to the Board in support of exceptions to the Trial Examiner's Intermediate Report. There is not the slightest contemporaneous evidence that the Respondent's refusal to reopen the Spring Mills plant on July 6 was motivated in any way by the objective of the employee strike on July 5. The fact that the explanation now offered was so long delayed is sufficient in itself to characterize it as a mere afterthought. The real reason for the failure to reopen the plant was, as found above, the Respondent's hostility to the Union. 4. The Respondent also contends in its brief, as it did at the hearing, that the employees forfeited their right to the protection of the Act by engaging in misconduct during the strike. At the hear- ing, however, the Respondent's witnesses failed to identify any indi- vidual employees as having been involved in the alleged misconduct. 5 N. L. R . B. V. Reynolds International Pen Company, 162 F. 2d 680 ( C. A. 7) ; Fontaine Converting Works, Inc., 77 NLRB 1386. GDorsey Trailers, Inc., 80 NLRB 478, 483; The Fafnir Bearing Company , 73 NLRB 1008, 1013 ; Stewart Die Casting Corporation v. N. L. R . B., 114 F . 2d 849, 855-6. 7 N. L. R . B. v. E. A. Laboratories , Inc., 188 F. 2d 885 ( C. A. 2) ; N. L. R. B. V. Aladdin Industries, Inc., 125 F. 2d 377, 382. 8 The Carey Salt Company, 70 NLRB 1099 , 1101 ; Stewart Die Casting Corporation v. N. L. R. B., supra ; N. L. R. B . v. Aladdin Industries, Inc., supra. 9 Elwood M. Jenks, 81 NLRB 707, 732; Sunnyside Winery, 77 NLRB 93, 94 ; Spencer Auto Electric , Inc., 73 NLRB 1416, 1418-1419 ; The Carey Salt Company, supra. WALLICK & SCHWALM COMPA\'Y 1265 Under the circumstances, therefore, we find no-b`a, is for denying re- instatement to any of the employees because of the strike activities to 5. We agree with the Trial Examiner that on ;and after July 15, 1.949, the Respondent violated Section 8 (a) (1) and (5) of the Act by refusing to bargain collectiy-ely with the Union. The Respondent' admits that on July 15, it received a request for bargaining from the Union and that it made no reply.. It con- tends, however, that before it received the request, the Spring Mills plant had been lawfully and permanently closed, and the employees involved were no longer its employees. As found above, however, the Respondent's refusal to reopen its plant was an unfair labor practice. The employees therefore retained their status as employees of the Respondent, despite the closing of the plant, and the Respondent was under a duty to bargain with their duly designated representa- tive, the Union. 6. We agree with the Trial Examiner that the Respondent inde- pendently violated Section 8 (a) (1)' of the Act by its participation with the businessmen of the community in soliciting its employees to withdraw from the Union. At the time this activity took place, the plant was already closed. However, the individuals solicited were still employees of the Respondent, and the Respondent's conduct therefore constituted unlawful interference, restraint, and coercion, even if it was, as the Respondent contends, merely preparatory to a possible reopening of the plant. The Remedy Having found that the Respondent has,engaged in certain unfair labor practices, we shall order it to. cease and desist therefrom and, to take certain affirmative action designed to effectuate the policies of the Act. We have found that, beginning July. '6, 1949, the Respondent re- fused to operate its Spring Mills plant, for discriminatory reasons. We shall therefore order the Respondent to offer the employees named in Appendix A, with the exception of ' Janet McCool," re- instatement to their former or substantially equivalent positions 12 at the Respondent's Spring Mills plant if the Respondent has re- opened it, or in the event the Respondent has not reopened it, at any other plant which the Respondent 'may be operating, without 10 Brown Radio Service and Laboratory, 70 NLRB 476. n The record shows that after the Spring Mills plant was closed , Janet McCool was employed by Schwalm at the Respondents ' Valley View plant . Although she was later discharged by Wallick , it is not alleged , nor is there any evidence to show, that the discharge was discriminatory . Accordingly , we shall not order the Respondent to 'reinstate her. 72 The Chase National Bank of the City of New York , an Juan, Puerto Rico Branch, 65 NLRB 827. 1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prejudice to their seniority and other rights and privileges, and with the necessary traveling and moving expenses, in the following man- nei : All persons now employed by the Respondent or who may be employed by the Respondent at any plant which it now operates or may have acquired and be operating at the time of compliance with this order, who were not employees of the Respondent on July 6, 1949, shall, if necessary to provide employment for the employees listed in Appendix A, be dismissed. If there is not sufficient employ- ment then immediately available for the persons listed in Appendix A, all available positions shall be distributed among all remaining em- ployees, including those listed in Appendix A, in accordance with the Respondent's usual method of operation under curtailed production, without discrimination against any employee because of his union affiliation or activities, following the system of seniority, if any, cus- tomarily applied to the conduct of the Respondent's business. Any employees remaining after such distribution for whom no work is immediately available, shall be placed upon a preferential list pre- pared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or in substantially equivalent positions as such employment becomes available and before other persons are hired for such work 13 We shall also order the Respondent to make whole the employees named in Appendix A, including Janet McCool, for any loss of pay they may have suffered by reason of the Respondent's discrimination, by payment to each of them of a sum of money equal to the amount that she normally would have earned as wages from the date of such discrimination to the date of the offer of reinstatement, 14 or, in the case of those employees named in Appendix A for whom there is in- sufficient work available, to the date of her placement on a preferential list as hereinbef ore set forth, as the case may be, less her net earnings during said period, 15 the back pay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Conn- pany.le We shall also order the Respondent to preserve and upon reasonable request to make all pertinent records available to the Board and its agents. We have further found that on and after July 15, 1949, the. Re- spondent unlawfully refused to bargain collectively with the Union as the exclusive representative of the employees. in an appropriate unit. We shall therefore order the Respondent, upon request, if and 1H Reliance Manufacturing Company, 28 NLRB 1051 , enfd. as modified, 125 F. 2d 311 (C. A. 7). 14 Back pay in the case of Janet McCool shall run from July 6, 1949, to the date on which she was employed at the Respondent's Valley View plant. 11 Crossett Lumber Company, 8 NLRB 440. 16 90 NLRB 289. WALLICK & • SCHWALM ' COMPANY.' _ 1267 .when it resumes operations at•the Spring Mills plant, -to bargain col- lectively with the Union as such representative and, in the event that an understanding is reached , ' to embody such understanding in a signed agreement. In view of the nature of the unfair labor practices committed, the commission by the Respondent of similar and of other unfair labor practices may be anticipated. We shall, therefore, make our Order herein coextensive with the threat, and order that the Respondent cease and desist from infringing in any manner upon the rights guar- anteed in Section 7 of the Act. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the Board hereby orders that the Respondent, Sam Wallick and Sam K. Schwalm, partners, d/b/a Wallick and Schwalm Company; Rita Schwalm, Administratrix of the Estate of Sam K. Schwalm, deceased; Sam Wallick, surviving partner, d/b/a Wallick and Schwalm Company; Wallick and Schwalm Corp.; and' Spring Mills Apparel, Inc., of New Jersey and Pennsyl- vania, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Ladies' Garment Workers' Union, Local 108, A. F. L., or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of their em- ployment. (b) Refusing to bargain collectively with International Ladies' Garment Workers' Union, Local 108, A. F. L., as the exclusive repr.e wentative of all production employees at the Respondent's Spring Mills plants, excluding machinists, office and clerical employees, watchmen, guards, and supervisors as defined in the Act. (c) Soliciting from its employees resignations from the Union, or participating with others in such solicitation. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization,, to form labor organizations, to join or assist International Ladies' Gar- ment Workers' Union, Local 108, A. F. L., or any other labor organi- zation, 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, or to re- frain from any or, all of 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, as authorized in Sec- tion 8 (a) (3) of the Act. 961974-52-vol.. 95-81 '1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act; (a) Offer the employees named in Appendix A, with the exception of Janet McCool, immediate and full 'reinstatement to _ their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make all the employees named in Appendix A whole for any loss of pay suffered, both in the manner set forth in the section of this Decision and Order entitled "The Remedy." (b) Upon request, if and when operations are resumed at Spring Mills, Pennsylvania, bargain. collectively with International Ladies' Garment Workers' Union, Local 108, A. F. L., as the exclusive repre- sentative of its employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of employment, and other condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (c) Post at its plant at Spring Mills, Pennsylvania, if operations are there resumed, or at the other plants where the employees=.are offered employment, copies of the notice attached hereto and marked "Appendix A." 17 Copies of said notice, to be furnished by the Re- gional Director for the Sixth Region; shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof and be maintained by it for a period of at least sixty (60) consecutive days thereafter in conspicuous places, including 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) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment.records, time cards, personnel records and reports, and all other records necessary to analyze the amount of back pay due and the right of reinstatement under the terms of this Order. (e) Notify the Regional Director for the Sixth Region in writing, within ten (10) days, from the date of this Order what steps the Respondent has taken to comply herewith. Appendix A 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, we hereby notify our employees that : 17 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted in the notice, before the words, "A Decision and Order ," the words, "A Decree of the United States Court of Appeals Enforcing." WALLICK & SCHWALM COMPANY 1269 WE WILL BARGAIN collectively , upon request , if and when opera- tions are resumed at Spring Mills, Pennsylvania , with INTERNA-- TIONAL LADIES' GARMENT WORKERS' UNION, LOCAL 108, A. F. L., as the exclusive representative of the employees in the bargaining unit described below with respect to rates of pay, wages , hours of employment, and other conditions of employment , and if an understanding is reached , embody . such understanding in a signed agreement . The bargaining unit is : All production employees at the Spring Mills plant, excluding machinists , office and clerical employees , watch- men, guards, and supervisors as defined in the Act. WE WILL NOT discourage membership of our employees in any labor organization by discharging or refusing to reinstate any of our employees , or by discriminating in any other manner in regard. to their hire and tenure of employment or any term or condition of their employment. WE WILL OFFER the employees named below , with the exception of Janet McCool , immediate and full reinstatement to their former or substantially equivalent positions at our Spring Mills, Pennsylvania , plant, without prejudice to any seniority or other rights and privileges previously enjoyed , or we will offer these employees immediate employment in substantially equivalent positions at our other plants, without prejudice to their seniority and other rights and privileges , and with the necessary traveling and moving expenses. WE WILL MAKE the employees named below whole for any loss of pay suffered as a result of the discrimination against them. Albright, Ruth Beaton, Julia Bennett, Orpha Bower, Mabel Bowersox, Freda Bowersox, Hazel Breon, Bessie Breon, Marion Burd, Miriam Coble, Mabel Confer, Arlene Confer, Beulah Decker, Sara Foust, Mabel Foust, Mildred Grove, Bernice Hackman, Pearl Homan, Alice Johnson, Lois Kerstetter, Ruth Krape, Jeanne Lane, Mabel Lingle, Carrie Lingle, Mary Long, Alice McCool, Helen McCool, Janet Meeker, Geraldine Mersinger, Kathryn Mersinger, Mary Miller, Kathryn Musser, Alice Osman, Marian Parret, Mae Paul, Shirley Ripka, Hilda 1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rote, Dorothy Scitti, Delphina Scitti, Ethel Scitti, Theresa Sheats, Verna Shook, Evelyn Silkman, Dorothy Skiles, Rachel Smith, Betty Smith, Catherine Stover, Dolores Stover, Mildred Walker, Florence Walker, Violet Wance, Irene Wert, Geraldine Wingard, Flora Zerby, Ella Zerby, Orpha Zettle, Romane WE WILL NOT solicit from our' employees resignations from the Union, or participate with others in such solicitation. 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 labor organizations, to join or assist INTERNATIONAL LADIES' GARMENT WQRKERS' UNION, LOCAL 108, A. F.. L., or any other labor. organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other con- certed activities for the purpose of collective. bargaining or other mutual aid and protection, or to refrain from any or all of such activities except to the extent that such right maybe affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. SAM WALLICK AND SAM IC. SCIIWALM, PARTNERS, D/B/A WALLICK AND SCHWALM COMPANY; RITA SCIIWALM, ADMINISTRATRIX OF THE ESTATE OF SAM IC. SCHWALM, DECEASED; SAM WALLICK; SURVIVING ,PARTNER, D/B/A WALLICK AND SCHWALM COMPANY; WALLICK AND SCHWALM CORP.; AND SPRING MILLS APPAREL, INC., Employer. By----------------------------------------------------------- (Representative ) ( Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge filed August 26, 1949, by International Ladies' Garment Work- ers' Union, Local 108, A. F. L., herein called the Union, the General Counsel, by the Regional Director for the Sixth Region (Pittsburgh, Pennsylvania), of the National Labor Relations Board, herein called the Board, issued his complaint dated February 14, 1950, against Sam Wallick and Sam K. Schwalm, Partners, d/b/a Wallick and Schwalm Company.; Rita Schwalm , Administratrix of the WALLICK & SCHWALM- COMPANY 1271 Estate of Sam K. Schwalm, deceased;' Sam Wallick, surviving partner, d/b/a Wallick and Schwalm Company; Wallick and Schwalm Corp.; and Spring Mills Apparel, Inc., herein called the Respondent, alleging that the Respondent had engaged in and was engagingin unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5), and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat..136, herein called the Act. Copies of the complaint and the charge, together with notice of hearing, were duly served upon the Respondent and the Union. With respect to unfair labor practices, the complaint alleged in substance that the Respondent had (1) engaged in certain acts of interference, restraint, and coercion; (2) locked out and/or terminated the employment of certain persons on or about July 5, 1949; and (3) refused to bargain with the Union from on or about July 8, 1949, and thereafter. Pursuant to notice, hearings were held on various days beginning April 10 through May 12, 1950, at Bellefo' ite, Pennsylvania, and on various days begin- ning May 24 through June 27, 1950, at New York City, before the undersigned, the Trial Examiner designated by the Chief Trial Examiner. The parties were represented by counsel. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues, was afforded the parties. Although afforded an opportunity none of the parties presented oral argument or filed briefs. Upon the entire record in the ease,2 and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is engaged in the manufacture of women's garments and maintains its principal office and a plant at Jersey City, New Jersey, and plants at Port Royal, Valley View, Berrysburg, Liverpool, and until about July 1949 at Spring Mills in the Commonwealth of Pennsylvania. During the year 1949,. the Respondent caused materials to be shipped to its plants in New Jersey and Pennsylvania valued in excess .of $100,000, all of which were shipped to it from points outside said States. During the same period, the Respondent shipped finished garments valued in excess of $500,000 which it had manufactured in New Jersey and Pennsylvania to points outside said States. It is found that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Ladies' Garment Workers' Union, Local 108, A. F. L., is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The business operations and background The Respondent in the form of several legal entities, but essentially as a single integrated enterprise, is engaged in the manufacture of women's garments for itself under the name of Valincot Garment Company and as a contractor for 1 Schwalm's death occurred on or about December 20, 1949. The pleadings and other formal documents were amended at the hearing in the manner appearing above. No appearance was entered on behalf of the administratrix , although the pleadings and notice of hearing addressed to her were received by counsel for the estate. 2 It is hereby ordered that the transcript be corrected to conform to a stipulation between the parties dated July 17, 1950, and that said stipulation become part of the record. 1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD others. The principals of the enterprise were Sam K. Schwalm , who until his death about December 20, 1949 , was in charge of the sewing plants in Pennsyl- vania , and Sam Wallick who is in charge of the Jersey City operations. In general materials are received at the Jersey City plant and are there cut into the desired shapes ; on some occasions this function is performed at the Liver- pool, Pennsylvania , plant; and on other occasions the materials are received in the cut stage. The cut materials are sewn at the Pennsylvania plants and the garments are returned to Jersey City facilities for pressing, packing, and ship- ping. The administrative functions are performed at Jersey City. Except for the matters which will hereafter be treated at greater length, the only effort at organizing the Respondent 's employees occurred at the Spring Mills plant , its newest plant and the facility here involved , in July or August 1946 , shortly after it commenced operations . On that occasion one of the em- ployees brought some union application cards to the plant . After several of the employees made some efforts toward forming a labor organization , Russell Osman, foreman of the Spring Mills plant , informed them that the Respondent would shut down the plant if it were organized . These efforts were thereafter abandoned and there were no new efforts toward self-organization until July 5, 1949. B. The lockout ; and interference , restraint, and coercion 1. The cessation of operations At the close of business on Friday , July 1, 1949 , after Schwalm 's son had dis- tributed the pay checks contrary to the custom of having Plant , Foreman Osman do so , Osman announced to the employees that he might not see them on Tuesday and that he wished them a happy holiday week end. The next workday, Tuesday, July 5, at about 7 a. in., the beginning of the workday , the employees gathered outside the plant and when Osman appeared , employee Ruth Kerstetter in- quired if he was to remain as plant foreman . Osman replied that he did not know, but that the machines were ready for operation and that they could go to work. One of the employees thereupon asked that Wallick be contacted. Osman left the group and telephoned Wallick at Jersey City and related the incident to him. Wallick instructed Osman to , persuade the girls to finish certain work explaining that it was necessary to get that work out , and that he could not get to Spring Mills that day but he would try to get there the next day. Osman re- turned to the employees and informed them of the conversation . After they in- dicated their willingness to go to work , Osman suggested that in view of the commotion and the fact that everyone appeared to be upset, he did not think they could give the Respondent a day 's work. He stated further that they go home to rest , return the next day , and go to work . The employees agreed to do so. As the employees were about to leave, Schwalm , his son, his son-in-law, and Henry Spotts, the foreman of the Berrysburg plant which was idle at the time, drove up to the premises . Schwalm rushed over to the group of employees and asked what was going on. One of the employees responded that they did not want Harvey McCool, the mechanic , at the plant . Schwalm entered the plant and after a short while returned to the employees and announced that he was prepared to operate the plant , that those who wanted to work should enter, and that the rest should go home. In answer to some of the inquiries or views voiced by some in the group , Schwalm stated that Osman was "through"; referring to Spotts, that he had brought a new foreman who would keep his place ; that McCool would keep his place; and the employees would keep their place . By about 8 a. in. 14 employees went to work . At about the same time Kerstetter asked Schwalm 's permission to take her personal belongings from the plant . . After WALLICK & SCHWALM COMPANY 1273 Schwalm gave his consent, Kerstetter and some others removed their personal things from the plant. While employees continued to mill around the plant thereafter, Kerstetter spoke to Osman alone and sought his advice. He suggested that the .employees organize. Kerstetter thereupon consulted with the employees, and Osman's suggestion met with their approval. Kerstetter reached an official of the Union by long distance telephone, and at his recommendation employees prepared signs which they carried and/or placed around the front of the plant declaring that they were on strike, that they favored Osman, and that they disapproved of McCool. At about 11: 30 a. in. the 14 employees who had been working left the plant after Schwalm explained that their number was insufficient to operate the plant. Schwalm thereafter had Spotts, McCool, his son, and his sister-in-law bundle the cut materials of the special order which needed immediate attention so that the materials could be removed from the plant and finished elsewhere. While this work was in progress Schwalm and Osman were alone discussing Osman's status with the Respondent. Osman, without disclosing the advice he had given Kerstetter, reported what he had learned from one of the employees in the interim that the employees had gone forward and contacted a union. Schwalm thereupon responded, "If that's the case, we'll close the plant." Sometime during the day Kerstetter and other employees sought to enlist the aid of the businessmen in town. Schwalm, Spotts, and McCool remained in the plant until about midnight when at their request they were escorted from the plant by two police officers. They locked the front door. when they left. Schwalm's son and son-in-law had left earlier at about 4 p. in. without incident. Sometime during the afternoon and/or night unidentified persons had driven metal pins :into 'the ground and had placed planks against a door or doors (other than the front door) of the plant so as to bar egress; someone had directed a flashlight into the plant; and threats of violence were voiced by persons standing outside the plant, which group of persons included some men' It does not appear that any of the materials were removed from the plant that day. McCool testified that when he left the plant that night he had no reason to believe that the plant would not reopen for work the next morning. After Schwalm, Spotts, and McCooi left, the group outside the plant disbanded. The next morning, July 6, employees, including employees who had removed personal belongings from the plant the day before, reported at the usual hour, 7 a. in., ready for work. Schwalm, Spotts, and McCool were absent and the employees found the front door locked. The employees thereafter milled around at the plant and some carried picket signs of the same general character as those of the day before. That afternoon a labor organization emerged from the employees' activities which had begun as a concerted protest about Osman and McCool. At about 1: 30 p. in., John Justin and another representative of the Union appeared on the scene and sought out Kerstetter. The union representatives, Kerstetter, and some of the employees discussed the problem and reviewed the recent events. In addition to expressing their opposition to McCool being put in charge of the plant and their favoring Osman, the employees discussed- wages and working conditions, including favoritism shown McCool's relatives at the plant. Justin pointed out that it was important that the employees get back to work and that a meeting be obtained with the Respondent. He advised further that the McCool matter should not become a major issue and that it might become an obstacle to the meeting of the parties. Justin also enumerated certain work 3 Except for McCool and Osman no men were employed at the Spring Mills plant. 1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standards the Union had.. He thereupon explained that if the employees wanted to adopt the program he had outlined, he would be glad to present it to the Respondent, and that if they did not adopt the program, he would leave. At his suggestion the employees discussed the matter among themselves fora few minutes. The employees then met with Justin stating that they would accept his advice and that they were ready to join the Union.' Within the next few minutes 33 employees signed authorization cards. Employees asked Justin whether McCool would be in charge of the plant. Justin replied that that was something beyond him and emphasized to the group that they live in the same community with McCool, that when the issue is resolved they will still live in the same community, and that McCool need not be made the major issue. Before the group left to conduct a meeting nearby, Osman approached and Justin informed him that the employees had just joined the Union, and that he, Justin, wanted to reach the Respondent to get the plant reopened. Kerstetter stated that they expected Wallick at a meeting with the businessmen of the town. Osman left and they proceeded to the meeting place. At the meeting of the Union that afternoon a committee with Kerstetter as chairlady was elected to represent the employees. The next day, July 7, according to Osman's credible testimony,, he telephoned Wallick and informed Wallick that the employees were organized by a union. Wallick inquired what labor organization it was and Osman replied that he did not know. ' Wallick declared that if. it was the same organization as that at Mt. Carmel and Tower City-an area in which.the Union has had contractual relations with employers for several years-he would have nothing to do with it. In the interim and beginning July 5, businessmen of the town, including Claude L. Stitzer, Ralph H. Shook, L.'Haworth Hoffmeier, the then cashier of the local bank, and shortly thereafter, Charles S. Kniss, a retired school teacher, took an active interest in the cessation of operations at the plant. After a week or two all or almost all of the townspeople except those just named, lost interest apparently because Wallick failed to appear in town.. It appears that the towns- people were not opposed to the Union and that the plant's biweekly payroll was of significance to the economic life of the community. By about the middle of July, Stitzer had circulated a petition among the em- ployees which stated that they were rejecting the Union as their bargaining agent, and then turned it over to Hoffmeier. This was preceded by telephone calls which Hoffmeier had made to Wallick in an unsuccessful effort to get.him to come to Spring Mills to talk to the employees. In the course of these conver- sations Wallick sought the aid of the businessmen toward the goal of getting the plant back into operation. Wallick stated that he had been informed that union representatives were at the plant, that he would not or could not operate the plant with a union present, and that the businessmen should direct their efforts toward getting the women to, reject the Union if the women wanted the plant to reopen and go back to work. Hoffmeier inquired how this was to be accomplished, and Wallick replied that the employees would have to resign from the Union. Wallick also informed Hoffineier that the Respondent's at- torney in that area was John A. R. Welch. Welch, who resided in another town, thereafter called Hoffmeier and in answer to Hoffmeier's inquiry stated that they could, -vyithout getting themselves into any legal difficulties, have the women resign from the Union by circulating a petition to that effect for their signatures. Ioffmeier thereupon drew the petition involved. Stitzer circulated the resig- nation petition for signature explaining to employees, in substance, that if a WALLICK & SCHWALM COMPANY ,1275 majority was not obtained the plant would not reopen and/or that those who did not sign would not have employment if the plant did reopen 4 The employees meanwhile picketed the plant until the materials were removed on July 14 or 15. On July 15, a responsible official of the Respondent received from the Union a letter dated July 8, requesting bargaining. After Hoffmeier received the resignation petition he telephoned Welch and informed him that it appeared that they had a majority. In a few days Welch called Hoffmeier back and informed him that the group resignation in the form of the petition was unacceptable and that individual resignations were necessary. On July 25, Simon J. Trosty, an attorney and accountant who devoted his entire time to the Respondent's interests, dictated the following letter which was sent to McCool and to Hoffmeier, who had occasion to state to Welch that he felt that if McCool and his sister Janet were discharged the problem could be solved : Mr. L. HAWORTH HOFFMEIER, First National-Bank, Spring Mills, Pa. DEAR MR. HOFFMEIER : Confirming the telephone conversation of July 25, 1949 with our Mr. Wallick, and also confirming the statement made to you by our attorney, John Welsh of Mifflintown, Pa., please be advised that both Harvey McCool and his sister, Janet McCool are no longer employees at our plant located at Spring Mills, Pa., nor do we intend to re-employ both at our Spring Mills plant at any time in the future. This letter is forwarded to you so that the employment status of both Harvey & Janet McCool in-so-far as our plant at Spring Mills is concerned, will be disposed of once and for all. A Copy of this letter is being mailed to the McCools. We wish to take this opportunity of expressing our sincerest appreciation for ,your cooperation and courtesies extended to date. Very truly yours, SPRING MILLS APPAREL, INC. SJT/ps. Hoffmeier then by letter dated July 30, wrote Welch as follows : JOHN WELSH, Esq., Mifintowm, Pa. DEAR MR. WELSH : I enclose two copies of the Spring Mills Apparel em- ployee status list for whatever benefit they may be to you or the firm of Wallick & Schwalm. The list was compiled for the purpose of ascertaining, as-near as is known, the present status and thinking of each employee. The petition and resignation referred to in the legend pertains to the blanket forms signed in anticipation of the meeting with Mr. Wallick on July 14th. As late as last night Harvey McCool ordered a local resident from the driveway between the Mill and the railroad tracks. Either Harvey is just plain nuts, a die-hard, or has not been informed of his status in accordance with the letter Mr. Wallick sent me. Our janitor, who has been making periodic visits around the plant, says he has been told to keep away. I received 10 handwritten resignation forms this morning, and others are or will be on the way. * This finding as to Stitzer 's explanation to employees . is based upon the credible testimony of Teresa Scitti, Geraldine Meeker, Romane Zettle, Bernice Grove, Verna Sheats, Mabel Faust, and Alice Musser Sweeley. • 1276 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD We certainly appreciate your kind guidance and counsel in these matters, and hope that the episode may soon be settled to the satisfaction of all concerned. Very truly yours, L. HAWORTH HOFFMEIER. The employee status list which was enclosed shows the significance of the legend referred to in the letter as, "Worked 7/5/49," "Renounced union on petition," and "Previously resigned from union ," and contains corresponding markings after the names of the employees. At about the end of July, Hoffmeier, Shook, and Kniss went to see Welch. At this conference they renewed their efforts to get the plant reopened. Welch, after again pointing out that individual resignations were necessary, undertook- relying upon information he had received from Trosty-to see to it that they got the individual letters for this purpose, and stated that he believed the plant would reopen in about 2 weeks after the resignations became effective. Kniss undertook to obtain the signatures for these letters. Trosty dictated a form for the individual letters of resignation.' At about the same time, by letter dated Wednesday, August 3, Trosty communicated with the Regional Office iii connection with a representation proceeding declining to submit certain data and stating that the Respondent had decided to close and dispose of the plant a Sometime during the first week of August, Hoffmeier received from Jersey City a supply of handwritten copies of the form letters and envelopes addressed to the Union. Hoffmeier gave Kniss the letters and en- velopes, some of which had postage stamps affixed. It does not appear that Trosty notified Hoffmeier of a decision to close and dispose of the plant, and on 6 The form provided a blank space for the date and the signature of the employee and reads as follows : AUGUST -, 1949. INTERNATIONAL LADIES GARMENT WORKERS UNION, Local 108, 19 A. North 4th Street, Harrisburg, Pa. GENTLEMEN : I hereby resign as a member of Local 108, of the International Ladies Garment Workers Union, effective imnrediately. Very truly yours, EMPLOYEE OF SPRING MILLS, Apparel, Inc., Spring Mills, Pa. 6 See following letter. Mr. SIDNEY LAWRENCE, National Labor Relations Board, Sixth Region, 2107 Clark Building, Pittsburgh, 22, Penna. Re : Spring Mills Apparel, Inc. Case No. 6-RC-411 DEAR MR. LAWRENCE : Confirming our telephone conversations and in reply to your letter dated July 29, 1949, relative to the above captioned matter , please be advised that my client, Spring Mills Apparel, Inc., because of business conditions had decided to close and dispose of Its plant at Spring Mills , Pennsylvania , when on the morning of July 5th, 1949 , the employees refused to work, because of a grievance held by them against one of the employees nanred , McCool. In view of the above , it appears to me that the data you request in your letter is not at issue, and therefore , I omitted the same. Furthermore, as stated to you in our telephone conversation , I would be -very pleased to discuss this matter personally , if necessary with your . local office in New York City. Very truly yours, TRowTY & GUIDONS. SIMON J . TROSTY. SJT : cc. WALLICK & SCHWALM COMPANY 1277 August 8 and 9, Kniss obtained the signatures of almost all the 34 employees who signed the letters. In obtaining the signatures, Kniss explained to the employees that it was his impression. that the plant would reopen after a majority resigned from the Union and the Union withdrew. On August 12, at the conclusion of the first day's hearing in a proceeding in which the employees were. appealing an adverse unemployment compensation decision, a representative of the Union approached Schwalm in the presence of Kerstetter and some of the employees and expressed the desire of the employees to return to work without condition.. Schwalm called Welch over and asked that the statement be repeated in Welch's presence. As the statement was repeated, Welch told Schwalm not to reply and led him away. The Respondent never replied to this request or the earlier request to meet and bargain. The unemployment compensation.appeal hearing was not concluded that day, August 12, but was continued until sometime in October. About August 17, Welch informed an official of the unemployment compensation agency that the plant was closed and would remain closed and that the Respondent had no objection to the employees being paid what was due them. That proceeding, it appears, was thereupon disposed of on that basis. At about the time Welch communicated with the unemployment compensation official, Shook and Kniss came to see Welch. At this conference Welch stated that he had been informed that the plant had been closed and would be up for sale. At his request, Kniss received $25 from Welch for time he had put forth and the expenses entailed in the use of his car.7 2. Conclusions The Respondent's answer denies the allegation that the Spring Mills plant was closed because of illegal reasons and explains that operations ceased "on July 5, 1949, wholly and entirely by reason of business and economic conditions and diffi- culties experienced in the management and technical departments of the plant." At the hearing the Respondent explained that the principal reason for shutting down the Spring Mills plant was based upon business considerations-it appeared that there was a lack of prospective business, it was losing money, and it wanted to decrease the production of its products generally. Concerning its housecoat business, the product of the Spring Mills plant, the Respondent stated, in further explanation of the closing of that plant, that it could not get any orders, and that the orders it did get did not pay for the costs. There is testimony that prior to July 5, Trosty had advised Wallick to retrench because the business did not warrant the.operation of five plants, but had not suggested which of the plants be eliminated. According to Wallick's testimony, he had suggested to Schwalm several times that the Spring Mills plant be sold because business was bad, the Respondent could not sell housecoats, and the plant was good for housecoats only. The Spring Mills plant was not, however, shut down prior to July 5. Except for the entries as to sales, the Respondent refused to disclose its general ledger contending that the ledger was confidential and had no bearing on the issues. The Respondent did disclose certain of its other records which it states were used in the conduct of its business. Although these records show some decline in production prior to July 5, it was not until after that date * Except as otherwise noted, the findings relating to the petition and the individual resignations are based principally upon the testimony of Hoffmeler , Shook, Kniss, a stipulation , and admissions by Trosty and Welch. The Respondent 's testimony , to the effect that it decided on July 5 to close the plant and participated in these events to accommodate the townspeople because they wanted to purchase and operate the plant themselves , is not credited. 1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the decline became more marked. It appears also that it was not until Octo- ber and November that employment in the other plants showed a decline. There is, however, no independent basis in the record for determining from the Respond- ent's books and records what its over-all profit- loss position had been. There is testimony of substantial borrowing during 1949, but there is no indication of the Respondent's practice in this regard during prior years. The explanation which Trosty gave for waiting until' March 1950-a month after the complaint was issued and a period of about 9 months after the plant was closed-before selling the Spring Mills plant machinery for $4,750, which according to Trosty was below actual value, was that the price which had been offered in the interim was insufficient. It appears also that when the plant was first offered for sale through a broker in October 1949, Trosty stated to the broker that the sale price was $15,000, all cash, and that the property was free from mortgage at that time. Wallick testified that he sought to sell the plant prior to July 5, but that he could not remember the names of the individuals with whom he spoke. There is also testimony by Trosty and Wallick of conversations with Schwalm beginning July 5, and testimony by Welch of conversations thereafter with the persons Just named, directed toward the selling of the plant. As in the instance of the Respondent's over-all profit-loss position, no independ- ent information is present in the record to show the position of the Spring Mills plant in that regard. The Respondent did produce certain records as to each of its plants which show by biweekly pay periods the number of garments produced and the corresponding payroll expense from January 1948 through March 1950. The records also designate "cost per dozen" which is the quotient after dividing the amount of the payroll by the amount produced. These records do not make any distinction as to the type of garment produced, the respective selling prices, and do not take into consideration the other elements in the cost of doing business. According to these records, however, while substantially similar garments were being produced at each of the five plants prior to about the middle of October 1948 when housecoats were first introduced at the Spring Mills plant, the Port Royal and the Spring Mills plants were the Respondent's lowest cost plants, based upon the Respondent's computation of "average cost per dozen and the number of pay periods during which these plants were below the average of all the five plants .$ 8 See table below. "Average cost per dozen"-1/10/18 to 10/28/48-all plants Rank Dozensproduced Total payroll Average cost a dozen 1. Sorine Mills------------------------------------------- 14, 013 $51,718.57 $3.69 2. Port Roval--------------------------------------------- 33,335 126, 763.41 3.80 3. Valley View---------------------- --------------------- 23; 382 88, 879.06 3.80 4. Barrysburg-------=----------------------------- ------- 5,852 25,360.57 4.33 5. Liverpool---------------------------------------------- 19,660 87,878.41 4.47 Number of pay periods individual plants were above or below average cost of all plants combined-1/10/48 to 10/23/48 Rank Belowaverage Above average Percentage of times below aver- age 1. Port Royal----------------------------------------------------- 15 6 71 2. Spring Mills --------------------------------------------------- 13 8 62 3. Valley View--------------------------------------------------- 13 8 62 4. Liverpool ------------------------------------------------------ 4 12 25. 5. Berrysburg----------------------------------------------------- 2 12 17 WALLICK & SCHWALM COMPANY 1279 It, also appears that the Spring Mills and Port Royal plants were the only ones which showed no idleness during 1948. For the period after the Spring Mills plant began housecoat production in October 1948 until it was shut down in July 1949, these. records show the Spring Mills plant as the highest cost plant based upon the Respondent's computation of "average cost per dozen" and the number of pay periods during which it was above the average of all the five plants! As alrettdy noted, these records do not make any distinction as to the type of garment produced and the selling prices. According to Wallick, however, the cost of producing housecoats is twice that of dresses, the product of the other plants. He explained that it takes about 36 yards of cloth for a dozen dresses and about 65 yards for a dozen housecoats and further that the housecoats require more stitching, the stitching is smaller and requires particular attention. It appears also that the selling price of the housecoats was admittedly. substantially higher than that of the dresses. Yet, during this period according to these records, the cost at the Spring Mills plant was less than $1_ a dozen above the average cost at the Port Royal plant, the lowest cost plant in the group. It is noteworthy, too, that the Spring Mills plant prior to its shutdown was the only plant for the period covered by these records which showed no idleness at all. Although on occasion during the time the Spring Mills plant produced housecoats, other plants produced less costly housecoats and the Spring Mills plant produced garments other than housecoats, the Spring Mills plant had been set aside for housecoat production. When the Spring Mills plant was closed in July, the inventory of unfinished garments at the plant and the garments intended for production at the plant, would have been sufficient to keep it in operation for several weeks at the ]9411) rate of production. It appears also that it was not until about October or Novem- ber that the Respondent actually ceased housecoat production which it had continued in the interim at its other plants and for the first time utilized the services of an outside firm. Although, as appears from the Respondent's records, the Spring Mills plant was one of the low cost plants, the Respondent experienced certain problems-some of which problems began with its opening in 1946-at the plant over a period of time affecting or tending to affect efficiency. Some of these matters relate to Osman and appear to be connected with his discharge. The Respondent also explained that 0 See table below. "Average cast per dozen"-10/23/48 to 7/2/49-all plants Rank Dozens produced Total payroll Average cost a dozen 1. Port Royal--------------------------------------------- 24,299 $94,410.25 $3.88 2. Liverpool---------------------------------------------- 15,034 64,523.45 4.28 3. Berrysburg-------------------------------------------- 6,163 26.831.75 4.35 4. Valley View-------------------------------------------- 13,495 60, 201.60 4.46 5. Spring Mills------------------------------------------- 9, 031 42, 748.78 4. 73 Number of pay periods individual plants.were above or below average cost of all plants combined=10/23/48 to 7/2/49 Percentage Rank Below Above of times average average below aver- age 1. Port Royal ---------------------------------------- 14 2 SS 2. Liverpool ------------------------------------------------------ 9 6 60 3. Berrysburg ---------------------------------------- 7 9 44 4. Valley View--------------------------------------------------- 5 11 31 5. Spring Mills--------------------------------------------------- 1 6 17 1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there had been difficulties between Wallick and Schwalm concerning Schwalm's personal conduct as exemplified by Schwalm's favoring McCool and his sister Janet and opposing Osman. Wallick testified that he had warned Schwalm about the eventualities of his personal conduct at the plants and that when the events of July 5 occurred at the Spring Mills plant, he pointed out to Schwalm that that was the consequence of his own misdeeds. Trosty testified that on July 5, he and Wallick had discussed the situation and pointed out that the events were the anticipated results of Schwalm's conduct at this and the other plants. The Re- spondent also pointed out that Osman was discharged for reasons other than the self-organization of its employees, and that having properly discharged Osman it had no ready replacement. Wallick testified that the time required for training a new manager varied with the one who did the training, and he estimated that it would take him 6 months to a year to train a new man. Schwalm, having had charge of the Pennsylvania operations, however, would have been the one to do the training, and his estimate of the time he would have. needed to train a new nian is not available because of his death. The record does not show why Spotts, who was brought to Spring Mills by Schwalm while Spotts' plant was idle, could not have been put in charge at least temporarily pending the acquisition of a replacement from one of the four other Pennsylvania plants by transfer and promotion. Although the Respondent urges the lack of a trained foreman as a reason for closing the Spring Mills plant, no explanation was given as to why, if the Respondent had been considering the closing of a plant for business reasons, the foreman of that plant would not have been available for permanent transfer to the Spring Mills plant. Lastly, in explanation of shutting do^vn the plant, the Respondent relies upon the "commotion" and "trouble" it had with some of the employees on July 5, but not the refusal to work. It is noted that although the Respondent contends that it was losing money and wanted to retrench generally, and that it was losing money on housecoats par- ticularly. and wanted to give up that line, the Respondent failed to substantiate its contentions as to its profit-loss position both generally and as to housecoats; a marked decline in production did not occur until after the Spring Mills plant ended operations ; housecoat production did not cease until several months after July 5 ; and the Respondent selected for shutdown its newest and, according to its computations, one of its lowest cost 10 instead of one of its highest cost pro- ducing units. Further, while the Respondent had experienced certain problems at the Spring Mills plant including Schwalm's conduct which had its anticipated culmination on July 5, and it had a ready and at least a temporary replacement for Osman, the Respondent, although countering the Union, made no effort at that time to correct the situation caused by Schwalm in order to maintain the value of its investment in the Spring Mills plant as a going concern, which value it placed at about $20,000 for plant and equipment at separate sale after the plant was closed. The explanation for the Respondent's conduct and the indication as to what it was concerned with is found in its immediate and sustained opposition _ to operating with a union at the plant as shown by (1) Schwalm's declaration - to Osman on July 5, after the situation arose and when Osman reported to him that employees had contacted a union, that the Respondent would close the plant .rather than operate with a union; (2) Wallick's admission to Osman 2 days later that he would have nothing to do with the Union; (3) Wallick's statement to Hoffmeier that he would not or could not operate the plant with a union and that the businessmen should direct their efforts toward getting the employees to 10 Allowance is here made for the necessary higher costs of urodueing housecoats as compared with dresses. WALLICK & SCHWALM COMPANY 1281 reject the Union if the plant was to be reopened ; and (4) the aid the Respondent gave toward defeating the Union . Having gotten the process of ridding itself of the Union well under way, the Respondent then, by its letter of July 25 , sought to correct the situation caused by Schwalm by discharging McCool and his sister and giving assurances that they would never be reemployed at the Spring Mills plant again . This letter of July 25 discharging Harvey and Janet McCool, dic- tated by Trosty , reads in part: Confirming the telephone conversation of July 25 , 1949, with our Mr. Wal- lick, and also confirming the statement made to you by our attorney, John Welch of Mifflintown , Pa.; please be advised that both Harvey McCool and his sister , Janet McCool are no longer employees at our plant located at Spring Mills, Pa., nor do we intend to re-employ both at our Spring Mills plant at any time in the future. This expression and the Respondent 's diligent efforts to rid itself of the Union is hardly the conduct of an employer who had, as the Respondent contends it had, decided to close its plant 20 days before it wrote the letter , particularly for the reasons it urged for closing the plant . When the Respondent realized that because of the Board 's processes it could not be certain that it would operate the plant without recognizing and bargaining with the Union, it sought to recoup its investment as best it could by the sale of its property . It is accordingly found that beginning July 6, 1949, when the employees reported at the plant for work, the Respondent refused to operate its Spring Mills plant because of its opposi- tion to the Union , it assigned elsewhere the work which the Spring Mills em- ployees would have ordinarily performed thus depriving them of the earnings they would have normally received and discriminating with regard to the hire and tenure of its employees named in Appendix A ; and that thereby and by its participation in obtaining the petition rejecting the Union and the individual letters of resignation from- the Union, the ' Respondent interfered with, re- strained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The refusal to bargain 1. The appropriate unit and the majority The parties agree and the undersigned finds that all the production employees at the Respondent 's Spring Mills plant, excluding machinists , office and clerical employees , watchmen and guards , and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. There are 56 employees within the appropriate unit. The Union upon the basis of authorization cards represents 33 of the employees in this unit as of July 6. The undersigned accordingly finds that beginning July 6, 1949, and at all times material thereafter , the Union was the representative of the employees within the meaning of Section 9 (a) of the Act in the afore -mentioned appropri- ate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment , and other conditions .of employment. 2.- The request and refusal to bargain As already found , on July 8 the Union wrote the Respondent requesting bar- gaining. This request was received on July 15, but at no time did the Respondent reply. It is accordingly found, particularly in view of the Respondent 's illegal opposition to the Union , that it did not at any time intend to bargain with the 1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, and that on.July 15, 1949, and at all times thereafter, the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit and has thereby interfered with, restrained, and 'coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with 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 ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of the Act, it will be recommended that the Respondent cease and 'desist therefrolu and take certain- affirmative action designed to effectuate the policies of the Act. Having found that the Respondent closed its Spring Mills plant beginning July 6, 1949, because of illegal considerations, in order to remove the conse- quences of the unfair labor practices and restore the status quo as nearly as possible, it is recommended that should the Respondent choose to resume its opera- tions that the Respondent offer the employees named in Appendix A immediate and full reinstatement to their former or substantially equivalent positions at that plant without prejudice to their seniority or other rights and privileges, or if the Respondent elects not to resume operations at the Spring Mills plant, it is recommended that the Respondent offer these employees immediate employ- went to substantially equivalent positions at its other plants without prejudice to their seniority .and other rights and privileges, discharging such persons at -the other plants, hired by the Respondent after the closing of the Spring Mills plant beginning July 6, as may be. necessary to provide employment for the persons named in Appendix A. Should the Respondent elect not to resume opera- tions at the Spring Mills plant but offer employment at the other plants, then in making the selection of an employee for a particular plant, the Respondent will follow a system of seniority or such other nondiscriminatory procedure as i1; has heretofore applied in the conduct of its business. Also, in the event that the Respondent should choose not to operate its- Spring Mills plant but to offer the employees employment at its other plants, it is recommended that, in order to make the employees whole, the Respondent pay for the reasonable expenses entailed in the transportation and moving of the employees and their families from the Spring Mills area to the locality where the employment is offered. - It is also recommended that the Respondent make whole the employees named in Appendix A for any loss of pay they may have suffered by reason of the Re- spondent's discrimination against them, by payment to each of them of a sum of money equal to that which she normally would have earned as wages for the period from the date of the discrimination, July 6, 1949, to the date of the Respond- ent's offer of reinstatement at.the Spring Mills plant, or should the Respondent elect not to resume operations at Spring Mills, to the date of its offer of sub- stantially equivalent employment at another of its plants less net earnings." In carrying out this purpose of putting the employees in the positions in which they would have been absent the Respondent's illegal conduct in closing the Spring 71 Crossett Lumber Co., 8 NLRB 440, 497-8. WALLICK & SCHWALM COMPANY 1283 Mills plant beginning July 6, 1949, it is recommended for the purposes of com puting loss of pay that the circumstances be reconstructed beginning on that date and thereafter until the Respondent has made an offer of reinstatement or employment as described above, as if the plant had continued to operate, taking into consideration proper management decisions the Respondent would normally- have made in the conduct of its business. Said loss of pay shall be computed. on the basis of each separate calendar quarter, or portion thereof, during thee period from the Respondent's discriminatory action to the date of a proper offer of reinstatement or employment. The quarterly periods, herein called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from the sum equal to that which each employee- would normally have earned for each such quarter, or portion thereof, her net earnings, if any, in other employment during that period. Earnings in one parr ticular quarter shall have no effect upon the back-pay liability for any other quarter. In order to insure compliance with the foregoing back-pay and rein-- statement or employment provisions, it is recommended that the Respondent be required to preserve and upon reasonable request to make all pertinent records. available to the Board and its agents.12 It is further recommended that the Board: expressly reserve the right to modify the back-pay and reinstatement or employ- ment provisions if made necessary by a change of conditions, and to make such. supplements thereto as may hereafter become necessary in order to define or- clarify their application to a particular set of circumstances not now appearing.. Since it has been found that by certain conduct described above, the Respondent has interfered with, restrained, and coerced its employees in their right to self- organization, it will be recommended that it cease and desist therefrom. Since, it has also been found that the Respondent on and after July 15 1949, unlawfully refused to bargain collectively with the Union as the exclusive representative. of the employees in a unit heretofore found appropriate, it is recommended that. the Respondent upon resumption of operations at Spring Mills and request, bar- gain collectively with the Union as such representative and, in the event that an. understanding is reached, embody such understanding in a signed agreement. The Respondent's conduct described above discloses a fixed purpose to defeat. self-organization and its objectives. Because of the Respondent's unlawful conduct and its underlying purpose, the undersigned is convinced that the unfair labor practices are persuasively related to the other unfair labor practices pro- scribed by the Act and that the danger of their commission in the future is to be anticipated from the course of the Respondent's conduct in the past. The pre- ventive purposes of the Act will be thwarted unless the recommendations are coextensive with the threat. In order, therefore, to make effective the interde- pendent guarantees of Section 7, to prevent the recurrence of unfair labor prac- tices, and to minimize strife which burdens and obstructs commerce, and thus to effectuate the policies of the Act, it is recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act. 13 Upon the basis of the foregoing findings of fact, and upon the entire record. in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Ladies' Garment Workers' Union, Local 108, A. F. L., is a. labor organization within the meaning of Section 2 (5) of the Act. 12F. W. Woolworth Company, 90 NLRB 289. 18 May Department Stores v. N . L. R. B., 326 U. S. 376. 961974-52-vol. 95-82 1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. All the production employees at the Respondent's Spring Mills plant, ex- cluding machinists, office and clerical employees, watchmen and guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. International Ladies' Garment Workers' Union, Local 108, A. F. L., was on July 6, 1949, and all times material thereafter, the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on July 15, 1949, and at all times thereafter to bargain collec- tively with International Ladies' Garment Workers' Union, Local 108, A. F. L., as the exclusive representative of its employees in the aforesaid 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 discriminating in regard to the hire and tenure of employment of the employees named in Appendix A and thereby discouraging membership in Inter- national Ladies' Garment Workers' Union, Local 108, A. F. L., the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. 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 unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] ANGELICA HOSIERY MILLS, INC. and AMERICAN FEDERATION OF HOSIERY WORKERS. Case No. 4-RM--83. August 23,1951 Decision and Direction of Election Upon a petition duly filed under Section 9. (c) of the National Labor Relations Act, a hearing was held before Harold Kowal, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' The Union's request for oral argument is denied, inasmuch as the record and the briefs, in our opinion, adequately present the positions of the parties. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 1 The Employer objected to the introduction into the record of various releases of The Bureau of Labor Statistics and The Bureau of Apprenticeship of the United States.Depart- ment of Labor and references to the Dictionary of Occupational Titles, 2nd Ed., March X1949, - published by the United States Employment Service. The Employer apparently contends that the use of such material in determining the unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 of the Act, would violate its constitutional right to a fair hearing. We find no merit In this contention. Inland Steel Company, 77 NLRB 1, 2, footnote 4, affirmed 170 F. 2d 247 (C. A. 7, 1948), and cases cited therein; 6 Wigmore, Evidence, 1690; 7 Wigmore, Evidence, 1700 (d), (3rd Ed.). Accordingly , we affirm the hearing officer 's ruling admitting such evidence into the record. 95 NLRB No. 169. Copy with citationCopy as parenthetical citation