Wear Ever Shower Curtain Corp.

National Labor Relations Board - Board Decisions

Jun 27, 1963

143 N.L.R.B. 272 (N.L.R.B. 1963)

272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the foregoing the General Counsel contends that Steakley's
inquiry coming at the end of a union organizational campaign and considered to-
gether with Respondent's surveillance activities and President Vise's speech was
"one last attempt to find out if the union was still organizing among its employees"
and was violative of Section 8(a)(1) of the Act. I do not agree. The inquiry
was innocuous, casual, and passing and not reasonably susceptible of being inter-
preted as interrogation into the union activities of the employees present or of their
fellow employees. I find that Steakley's inquiry did not violate the Act.
In addition, Steakley credibly testified that at the beginning of one of the com-
mittee meetings (his best recollection was that it occurred at the April meeting),
the "union was mentioned" by "some of the employees on the committee" who
said that the Union was endeavoring to organize the Respondent's employees.
Steakley asked them what their complaints were that "made them want a union."
I do not find this mere inquiry, devoid of threats or promises of benefit, to be
violative 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 obstruct-
ing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Boot and Shoe Workers' Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening its employees with economic loss if they designated a collective-
bargaining representative, the Respondent has violated Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
5. Respondent has not engaged in any alleged unfair labor practices not spe-
cifically found herein.
[Recommended Order omitted from publication.]
Wear Ever Shower Curtain Corp . and Local 424, Teamsters,
Warehousemen, Helpers & Production Workers
Local 98, International Ladies Garment Workers Union, AFL-
CIO and Local 424, Teamsters , Warehousemen , Helpers &
Production Workers. Cases Nos. 2-CA-8969 and 2-CB-3564.
June 27, 1963
DECISION AND ORDER
On April 2, 1963, Trial Examiner Ramey Donovan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent Company had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
143 NLRB No. 34.
WEAR EVER SHOWER CURTAIN CORP. 273
therefrom and take certain affirmative action, and finding that Re-
spondent Union had not engaged in the unfair labor practices alleged
in the complaint and recommending that that portion of the complaint
be dismissed, as set forth in the attached Intermediate Report. There-
after, the Respondent Company and the General Counsel filed excep-
tions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act,'the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and finds merit in certain of the Respondent Company's
exceptions.
The Trial Examiner found that Respondent Company appeared to
condition the reinstatement of employee Yeras, the alleged discrimi-
natee, upon employee Ramos' destruction of cards which had been
signed by employees designating Local 424 as their bargaining rep-
resentative, and that the Respondent Company thereby violated Sec-
tion 8(a) (1) of the Act. On the basis of this finding the Trial
Examiner concluded that the Respondent Company was illegally
motivated when it discharged Yeras and that the initial discharge,
therefore, was violative of Section 8(a) (3) of the Act.
While that portion of the testimony of Ramos relied upon by the
Trial Examiner could lead to such a conclusion, we find that the sum
total of Ramos' testimony is unclear, a condition caused, no doubt,
by Ramos' difficulty in communicating in a tongue not native to him.
It is true that employee Yeras was discharged the morning after
he attended a meeting of those employees who signed Local 424 cards
and that Respondent Company may have had knowledge of that
meeting. However, it is also true that Yeras was scheduled to work
overtime the evening of the meeting and that he left Respondent's
premises at the normal quitting time without so advising his superiors.
In addition, we note that Ramos' statement to his Employer that he
was going to destroy the cards was made immediately after his fall-
ing out with the Local 424 organizers. This latter fact could lead
to a conclusion, contrary to that drawn by the Trial Examiner, that
the destruction of the cards and the reinstatement of Yeras were
independent of and unconnected with each other. Further, Yeras
was reinstated without loss of pay several hours after his discharge.
While the Trial Examiner's conclusions may be reasonable, there-
fore, we find that on the basis of this record it is unnecessary in
effectuating the purposes of the Act to issue a remedial order. Ac-
cordingly, for the reason stated by the Trial Examiner, we shall
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dismiss that portion of the complaint against the Respondent Union,
and for the reasons stated above, we shall dismiss that portion of the
complaint directed against the Respondent Company.
[The Board dismissed the complaint.]
MEMBER FANNING, concurring in part and dissenting in part:
I concur in that part of the majority decision which affirms the
Trial Examiner's dismissal of the complaint against Respondent
Union.
For reasons stated in the Intermediate Report, I would adopt the
Trial Examiner's findings that the Respondent Company violated
Section 8 (a) (1) and (3) of the Act.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Pursuant to a charge filed on November 30, 1962, by Local 424, Teamsters,
Warehousemen , Helpers & Production Workers, herein called Local 424, a com-
plaint dated November 30, 1962, was issued against Wear Ever Shower Curtain
Corp., herein called Respondent Corporation, and against Local 98, International
Ladies Garment Workers Union, AFL-CIO, herein called Respondent Local 98.
The complaint alleged that Respondent Corporation discharged employee Luis Yeras
because of his union and concerted activity and offered to reinstate Yeras on the
condition that cards signed by employees for Local 424 be destroyed , and reinstated
Yeras when such condition was fulfilled, all in violation of Section 8(a) (1) and (3)
of the Act. It is alleged that Respondent Local 98, in violation of Section 8(b)
(1) (A) of the Act, engaged in surveillance of union and concerted activities by
examining cards on which Wear Ever employees had designated Local 424 as their
bargaining representative . In their respective answers both Respondents denied
the commission of the alleged unfair labor practices attributed to them . The hear-
ing was held in New York City, on February 11, 1963, before Trial Examiner
Ramey Donovan . The General Counsel and the Respondents were represented by
counsel at the hearing and participated fully therein . These parties made oral
argument and the General Counsel and Respondent Union filed briefs.'
Upon consideration of the entire record in the case, including my observation
of the witnesses , 1 make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT CORPORATION
Wear Ever Shower Curtain Corp. is a New York corporation with an office and
showroom in New York, New York , and a factory in Brooklyn , New York. The
corporation manufactures , sells, and distributes shower curtains and related prod-
ucts. During the past year , a representative period, Wear Ever manufactured, sold,
and distributed products valued in excess of $50,000 which were shipped from its
plant in interstate commerce to States other than New York. Wear Ever is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 98 is a labor organization within the meaning of the Act. There is suffi-
cient evidence in the record to warrant the finding , here made , that an organization
known as Local 424 is a labor organization within the meaning of the Act .2 In
any event , the question of whether Local 424 is a labor organization is not deter-
minative of the issues in this case since the discharged employee, Yeras, and other
employees had engaged in union or concerted activities and the matter in issue is
1 Respondent Corporation set forth Its position in a letter from counsel to the Trial
Examiner.
2 See also Twin County Transit Mim, Case No. 2-RC-12452.
WEAR EVER SHOWER CURTAIN CORP. 275
essentially whether Respondents violated the Act with respect to or because of
such activities.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
Respondent's plant in Brooklyn, where the events occurred with which we are
concerned, has been organized for at least 10 years and the employees have been
and are represented by Local 98. Yetta Wollman is the Local 98 business agent
who served the plant throughout this period. The number of employees is about
50 to 60 depending upon business conditions. Morris Stern is the president of
Wear Ever and is actively engaged in the day-to-day management of the business.
During the period which concerns us, Morris Stern was at the factory every day.
There is nothing in the record to indicate that this was not generally true through-
out the year. Sidney Stern, brother of Morris, is referred to as the manager or
foreman of the plant. At least part of Sidney Stern's immediate supervisory juris-
diction includes the shipping, receiving, and order-filling employees, among whom
are Yeras and Eddie Ramos, the two employees who testified at the hearing. Yeras
had worked for Respondent about a year and a half and Ramos had worked there
for 10 years. A year or two before the 1962 events that we shall consider, Ramos
had been shop steward for Local 98 in the plant . He had held this position about
2 years. It was apparent that both Yeras and Ramos were of Spanish extraction
and that English was not their native tongue. This reference is not made by way
of criticism since both men were immeasurably more competent in English than
the Trial Examiner would have been in Spanish. However, the rather sharp con-
flicts in testimony in this record were not easy to resolve because of the difficulties
of some witnesses in expressing themselves in precise terms.
No witness was able to fix the precise day or date of the events herein but all
agreed that they occurred in the month of September 1962.3 The day or date is
not essential in this particular case, however.
During the employees' lunch period on a day in September 1962, Brown and
Mario Riccardi, organizers for Local 424, contacted Yeras and Ramos outside the
plant. Whether the initial words were first addressed to Yeras or to Yeras and
Ramos together, it appears that the organizers on this first day and thereafter
explained their proposition to both these men together. There were, in all, about
four such meetings or conversations and they may be summarized as follows: The
Local 424 men said that they had organized another named plant recently and
someone at that plant had suggested that they go to the Wear Ever plant. The
organizers came over to Respondent's plant and among some employees outside
the plant during the noon hour they happened to speak to Yeras and Ramos. There
is no evidence that the selection was anything but fortuitous. The four men, on this
and on other days, then conversed principally in a Spanish restaurant a few blocks
from the plant.4 The gist of the conversations was that the Local 424 representa-
tives said that they could secure greater benefits and improved conditions of em-
ployment for the Wear Ever employees; they also expressed some criticism of Local
98; they asked Yeras and Ramos to speak to the other employees about Local 424
and the two men agreed to do so.
Yeras was asked, at the hearing, the extent of his activity on behalf of Local 424.
He testified that he spoke to an employee who was a friend of his and could not
remember how many others-"I don't remember, not many." Yeras was not given
any union application cards to distribute. Ramos, who was, in my opinion, older
than Yeras and impressed me as more mature and sophisticated (he had also been
a shop steward for Local 98), was given some union cards. Ramos spoke briefly
to most of the employees about Local 424.5 He did not distribute any union cards,
however.
s The charge alleged that Yeras was discharged September 1 and the complaint alleges
that Yeras was discharged September 11. Respondents in their answers do not admit the
aforementioned complaint allegation.
4 There is no evidence that Morris or Sidney Stern were customers or frequenters of this
restaurant.
6 Ramos was a shipping clerk. He evidently did not speak to the employees openly
but did so as the opportunity presented itself. Thus :
Q How often did you talk to the people In the shop about this?
A Well, I really didn't do much talking because I didn't have much time.
He did most of his talking to employees around the noon period.
717-672-64-vol. 143-19
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
One day, among these conversations between the Local 424 organizers and Yeras
and Ramos, the organizers said that there would be a meeting for all employees
on the following day in the Spanish restaurant shortly after work.6 Yeras and
Ramos then orally passed the word of this meeting among the employees. Yeras
testified that during the lunch hour he passed the word of the meeting to the
employees.
On September 11, Wollman was sent to the Wear Ever plant by Pokodner, busi-
ness manager of Local 98. Pokodner told Wollman that some employees of Wear
Ever had telephoned him that there were some people outside talking union to the
employees and that she should go over and see what was going on. Wollman
went to the plant on September 11, and asked various employees what was going
on, whether there were any complaints that she could take care of, and what was
the name of this other union. To the last question, the employees said they did
not know. Among those that Wollman spoke to was Ramos. She came over to
him and asked him if he knew what he was doing. Apparently Ramos said nothing.
Wollman asked him if the other union had given out union cards or papers and
Ramos said no.
On this same day, September 11, Morris Stern observed two strangers talking
to some of his employees on the street outside the plant, apparently during the noon
hour.? He went over to the men, introduced himself, and said, " `I understand
you are dealing with my people. Would you mind telling me who you are.' They
said, `Your people-the slaves were freed long ago.' So I got up and walked
away." At the hearing Stern said that he guessed that the two men were "Mr.
Brown and that other fellow." It is reasonable to conclude that before and certainly
after he spoke to the two men who were "dealing" with his employees that Stern
was aware that some union activity other than by Local 98 was taking place or
being attempted among his employees. I believe that Stern, a man with many
years' experience as an employer in his particular industry in New York, would
recognize the reply he received from the two outsiders as a type of trade union
talk by a union agent or organizer who on other occasions might use similar language
in leaflets or otherwise. Further, Stern had been dealing with Wollman for 10
years as the Local 98 business agent of his employees. Wollman knew that there
was union activity going on among the employees and she came to the plant on that
day for that very reason. She went through the plant talking to employees about the
subject. Certainly Stern who spent a great deal of time on the working floor of his
plant was aware of Wollman's presence There is no plausible inference other than
that Wollman either told Stern about the situation and her mission or he asked
her and she told him or that he knew the situation. These two parties had a mutual
interest in their long-standing and quite apparently satisfactory relationship, and
activity by another union was something that concerned both.
The normal quitting time for Respondent's employees is 4 p.m. However, during
the busy season of the business, which included September, it was customary to
work an hour overtime from 4 to 5 p.m. Sidney Stern had spoken to Yeras about
working overtime the week of September 10, and had told him that he expected
him to work overtime that week .8 Yeras had agreed that he would work overtime
and knew that Sidney Stern was relying upon him to do so. However, Yeras left
the plant on September 11, at 4 p in., without advising Sidney Stern or anyone else
in management that he was leaving He attended the Local 424 meeting at the
Spanish restaurant that evening. At the meeting about 19 employees signed Local
424 application cards or application forms. Brown and Riccardi were present
as well as Yeras, Ramos, and other employees. The signed cards were entrusted
to Ramos and it was understood that he would deliver them the next day to Brown
6 Arbitrarily and solely as a matter of convenience in distinguishing the day of the
general meeting from the day before and the day after, by means other than such a rela-
tively lengthy description, I shall place the meeting as occurring on September 11 (Yeras
testified vaguely that it might have been a Wednesday when he was discharged ; I note
that September 12, 1962, was on Wednesday).
7 This was Stern's testimony on direct examination by his counsel. On cross-examina-
tion, when questioned about the incident, the witness placed the occurrence on the fol-
lowing day. Other than this revision by Stern there is no other evidence of two strangers
loitering outside the plant on September 12 As mentioned it was on September 11 that
Pokodner received a similar report and pursuant to this Wollman had come to the plant
on that day, September 11
8 Apparently this conversation occurred on Monday, the beginning of the workweek
There is also some indication that earlier in the day, on September 11, Stern again told
Yeras that he was to work overtime that day and that Yeras agreed.
WEAR EVER SHOWER CURTAIN CORP. 277
and Riccardi, the organizers. Ramos testified that the meeting was held from about
4:30 to 5pm.
Yeras returned to the plant that same evening around 5 p.m , and was standing
at the plant entrance. About this time Morris Stern came down. He saw Yeras
and said, "I thought you were supposed to work overtime, and then you went
home, so what are you doing here at 5 o'clock?" Yeras said he had to see some
people or had to go some place and that he was waiting for a friend. He then
walked away. According to Stern, as Yeras walked away Yeras mumbled, "That
son-of-a-bitch." Stern said nothing. Yeras, at the hearing, denied that he said
anything of the foregoing nature, i.e., the cursing or profanity, or that he was
angry as he walked away.
The following day, September 12, when Yeras came to work in the morning,
he was discharged by Sidney Stern. The evidence is that Morris Stern had spoken
to Sidney earlier that morning and had told him what had transpired between
Morris and Yeras the evening before. Sidney Stern affirmed to Morris that Yeras
had told Sidney that he would work overtime and then had left at 4 p.m. without
saying anything.9 Morris Stem testified that he told his brother, "Let him go"
and "that's what we did that morning."
Although Morris Stern gave the order that Yeras be discharged, it was Sidney
Stern who executed the order. The morning of September 12 about 8 a.m., when
Yeras came to work, it was Sidney who terminated him. Sidney did not testify so
it is Yeras' testimony that we must consider in determining what Sidney Stern said
to him. Yeras impressed me as a bascially honest witness. He was working for
Respondent Employer at the time of the hearing. As we shall see, he was reinstated
the afternoon of his discharge without loss of pay. The record indicates that he
and Ramos had abandoned any interest in Local 424 activity. Neither Yeras nor
Ramos filed the instant charge. None of these factors is determinative in itself
but I could discern no animus against either Respondent on the part of Yeras.
I do not believe that it was Yeras' intent or purpose to testify adversely to Re-
spondents or to engage in deliberate falsification or shading of the truth. He testi-
fied to the facts as he knew them. He was a quiet and somewhat reserved type
of young man and his demeanor as a witness impressed me favorably with respect to
his credibility. His comprehension of, and power of precise expression in, English
was tolerable or satisfactory but it was not that of a person in the milieu of his
native tongue
Yeras, on direct examination by the General Counsel, testified, when asked what
happened when he came to work on September 12, "The brother-in-law of the boss,
the foreman, they [he] tell me they [he?] fire me. They [he?] got no work for
me " About three pages later in the transcript of testimony the witness was asked
to tell what Sidney told him when he was discharged. He stated, "Well, they [he,
Sidney] told me he fire me because I no work good and also I don't like to work
overtime." 10 On cross-examination Yeras was asked:
Q. And he [Sidney Stern] said you are no longer working, right9 Is that
what he said?
A. That means I no work good, right?
It is my opinion that while Yeras was not testifying dishonestly, he had, at the time
of the discharge, interpreted for himself what Sidney Stern had told him. I believe
that Stern stated to him on September 12 substantially, we have no work for you,
you do not like to work overtime, you are fired. As indicated above, I believe that,
at the time, Yeras interpreted Sidney Stern's words in Yeras' own mind. It was
my distinct impression that Yeras was a person who thought in Spanish. He took
Stern's English words on this particular occasion and sought to grasp their intrinsic
meaning. I find confirmation for this in the excerpt quoted above on cross-examina-
tion. In other words, to Yeras, when Stern said he was fired, and referred to
overtime, Stern was also in effect saying that Yeras was not a good worker or his
work was not good.
The General Counsel's position is that one of the reasons given by Sidney Stern
to Yeras for his discharge was that he was not a good worker, the other reason being
failure to work overtime. It is then pointed out, correctly, that there is no evidence
that Yeras was a poor worker and the evidence shows that he was a satisfactory or
good employee whose work had never been criticized and that in the past he cus-
0 Morris Stern had originally known this fact from Sidney on the preceding evening
10 Yeras testified also that this was what be told Wollman when she later asked what
reason the Company had given for his discharge. Wollman testified that Yeras told her,
when she 'asked him why he was fired , that "the boss, Morris, said that he [Yeras] had
called him a name" but that Yeras said that be had not.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tomarily had worked overtime when asked. It suffices at this point to refer to my
finding as to what Sidney Stern said to Yeras. Two distinct reasons for the dis-
charge were not given by Sidney. However, I do find that Sidney Stern said nothing
to Yeras about being discharged for cursing Morris Stern or anything of that nature.
After he was discharged on September 12, Yeras attempted to reach one of the
Local 424 organizers, Brown, by telephone but he was unsuccessful. Yeras then
stood on the street outside the plant. About 11:30 that morning, Wollman and
Barnes came by on their way to the plant. Barnes, like Wollman, was a business
agent of Local 98. Wollman had been servicing the Wear Ever plant for many
years and it was part of her regular jurisdiction. Barnes had never serviced Wear
Ever but as a result of Wollman's visit to the plant on September 11, the preceding
day, Pokodner had assigned Barnes to accompany Wollman. Unlike Wollman,
Barnes spoke Spanish and he was to address the Spanish-speaking employees at
Wear Ever.
When Wollman saw Yeras she asked him what he was doing on the street and
why he was not working. Yeras said that he had been discharged. Wollman asked
what reason the Employer had given. Yeras replied that the reason given was that
he did not work overtime and "no work good." 11 Wollman asked Yeras why he
had not called Local 98 or come to its office. Yeras said he had intended to do so
around noon or that he was going to speak to someone and then call. Yeras testi-
fied that Wollman "Say I [am] going to put you back to work." Within a matter
of minutes Morris Stem came out of the plant on his way to lunch.12 Stern came
over to the group of Wollman, Barnes, and Yeras. Wollman introduced Barnes to
Stern and then asked Stern why he had discharged Yeras. Stern recounted the en-
tire incident between himself and Yeras on the evening before, including the alleged
profane epithet.13 Wollman testified that she said to Stern that there probably
was a misunderstanding; that she was sure Yeras was sorry, otherwise he would
not be "hanging around"; that she did not think the matter was worth taking to
arbitration or that it would not stand up in arbitration; that Stern ought to take
Yeras back; that it was the busy season and Yeras was familiar with the work. The
witness, Wollman, then testified, "He [Stem] agreed with me."
During the first part of the foregoing conversation Barnes was with Stern and
Wollman and heard what was said. The evidence indicates that when Stern joined
the group Yeras had stood aside and I credit his testimony that he did not hear
the conversation between Wollman and Stem. In the course of the Wollman-Stern
conversation, Barnes came over to Yeras and talked to him in Spanish. He em-
phasized to Yeras the necessity of contacting the Union promptly whenever some-
thing out of the ordinary happened. Barnes testified that because he had heard
Wollman tell Stern that she would like Stern to reinstate Yeras he told Yeras that
he was going to be reinstated. Barnes did not testify that he had heard Stem agree
to reinstate Yeras.
Morris Stern testified that on the foregoing occasion, the conversation between
Wollman and himself took place essentially as described by Wollman. He states
that when Wollman asked him to reinstate Yeras he (Stern) said, "All right. If
this is your wish, I'll put him back to work."
The evidence indicates that, upon the conclusion of his aforedescribed conversa-
tion with Wollman, Morris Stern left. It is clear that Stern said nothing to Yeras
at this time about reinstating him. The evidence also shows that neither Wollman
nor Barnes informed Yeras of Stern's alleged decision or agreement to reinstate
Yeras. Since I have found that Wollman, when she first encountered Yeras that
morning, had told him that she was going to put him back to work and Barnes had
said substantially the same thing, it is apparent that such statements were of the
greatest interest to Yeras. It is equally apparent that Yeras and the two business
agents knew that Stern's agreement would have to be secured before the employee
was actually reinstated. Wollman had made her statement to Yeras before she
even spoke to Stern and, however confident her statement, it did not represent the
fait accompli of reinstatement. Barnes' statement was based on the fact that he
knew Wollman was asking Stern to reinstate Yeras and he was evidently confident
of the outcome. But Barnes did not know when he spoke to Yeras whether or not
Stern had agreed with Wollman's request. It is also evident that Yeras understood
that what he was being told was the position of the two union representatives and
'1 As noted previously, Wollman states that Yeras told her that Morris claimed that
Yeras had called him a name. Barnes states that Yeras told Wollman that he was dis-
charged "because the boss claimed he said something, whatever it was "
12 The employees' lunch period was 12 to 12 :45. Morris Stern customarily went to
lunch shortly before 12
v This is Stern's testimony and he is corroborated by Wollman and Barnes.
WEAR EVER SHOWER CURTAIN CORP. 279
what they hoped or expected to accomplish on his behalf with Stern . If Yeras had
believed that what was told to him by Wollman and Barnes meant that he was in
fact reinstated , he would have gone into the plant to go to work . The fact is that
all concerned , including Yeras, knew that Wollman would have to secure Stern's
agreement . When Stern came out and Wollman entered into conversation with
him, it must have been reasonably apparent to Yeras, in view of what Wollman
and Barnes had told him, that Wollman was asking Stern to reinstate the employee
or was at least discussing his discharge . Yeras waited around quite evidently to
hear the outcome on this personally important matter. The conversation ended.
Stern departs and Wollman and Barnes go toward the plant. No one says any-
thing to Yeras or informs him what has been decided.14
In view of the fact that Wollman , when she first encountered Yeras at 11:30,
displayed the greatest interest in his case and secured the details thereof from Yeras,
confidently said that she was going to get him reinstated , then spoke to Stern about
the matter, I have difficulty in understanding why she did not tell Yeras that Stem
had agreed to reinstate him if such was the fact . This, after all, was presumably
the whole point of all the conversations she had outside the plant that morning.
Moreover, the Yeras situation had additional importance . On the preceding day
Wollman had come to the plant regarding reports of activity by another union.
She had difficulty in communicating with the Spanish -speaking employees but evi-
dently had discerned that communication with this sector was important regarding
the reported rival union activity . Wollman had in fact said to Ramos on that day
that she hoped he knew what he was doing and asked about union cards. In any
event, the next day, the Spanish-speaking employees ' attitude was important enough
to merit the sending of an additional business agent to the plant , to speak in Spanish
to the employees En route to the plant to communicate particularly with the
Spanish group , the Yeras incident occurred . At the very point when , according
to Wollman and Stern's testimony , the reinstatement had been agreed upon, Woll-
man ignored the opportunity of actually informing Yeras that he was reinstated.
It was clearly an opportunity to win or to cement the confidence of the Spanish-
speaking employees , other employees , and Yeras , in Local 98.15 Stern 's inaction
is also not readily understood.
In his testimony , Morris Stern stated that he did not call back Yeras at the end
of the Stern -Wollman conversation because of a "Technicality ." The technicality
Was that he had to take up the matter of Yeras' rehiring with his brother , Sidney.
Morris Stern states that after he left Wollman on September 12, he went to lunch
and discussed the Yeras matter with his brother during the lunch hour. Morris told
Sidney that he deemed it advisable to reinstate Yeras. Although it was the plant's
busy season , no instruction was given by Morris Stern to his brother that the latter
should go out and call Yeras back to work and Sidney Stern was not the person
who did recall Yeras. It also appears affirmatively from Wollman 's testimony that
Morris Stern had said nothing to her about the reinstatement being contingent upon
Morris Stern 's consulting his brother . Yeras, of course , had been discharged by
Sidney at his brother 's direction . He could have been reinstated in the same way.
I can understand that Morris would wish to inform his brother of what was going
on and would not want Yeras back to work without having first advised Sidney.
But when Morris did advise Sidney during the lunch hour nothing was done by
either brother about calling Yeras back Nor at anytime prior to the later Stern-
Ramos conversation , hereinafter described , did Wollman , Barnes, Morris or Sidney
Stern inquire as to Yeras , or ask anyone where he was, or speak to Yeras, or do
anything about actually calling him back to work.
A short period after the conclusion of Wollman 's conversation with Stern outside
the plant, the plant bell rang for the lunch period . Wollman states that as the
employees came out she went over and greeted various ones and conversed gen-
erally. After a while Wollman and Barnes went into the plant and upstairs. Ac-
cording to Wollman , employees crowded around and asked her what had happened
to Yeras Wollman testified that she told them , "He is coming back to work, don't
14Yeras testified , " . . I stayed outside He [Stern or Barnes '+] went in the building
She [`Wollman ] went in the building I don't know what's going on " Yeras testified
that he then stayed outside until the bell rang for lunch He finally went to the Spanish
restaurant where he met the two Local 424 organizers and Ramos , as hereinafter described.
"The record does not show the exact proportion of Spanish ancestry employees How-
ever , I believe it was substantial Wollman said there were about 20 who did not under-
stand English but there were others of the same ancestry who evidently did have some
proficiency in English . Barnes' speech to the employees in the plant on September 12
was in Spanish , followed by a brief English summary
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worry about it." Barnes corroborates this testimony. Wollman states that she
then went to Stern in the plant and asked permission for Barnes to address the
Spanish-speaking employees in Spanish and to advise them that Yeras was reinstated
and to find out if they had any grievances or complaints. Stern testified that he
could not remember whether Wollman gave him any reason why she wanted to
have the Barnes' meeting. Stern agreed, however, and Barnes then went over to
a section of the plant and spoke to the employees in Spanish, with an English
summary thereafter. Barnes is the only source of information as to what he said.
On direct and cross-examination he explained the matters covered. Barnes was an
intelligent and articulate witness and appeared to have a good memory. He spoke
about the employees' rights and their existing benefits, including the pension plan.
He testified that he stated to his audience that on that morning "there was an
incident occurred and as a result of that incident, one man was discharged," an
employee was discharged; he said the man did not call the Union and he advised
his listeners that they should always contact the Union promptly when something
like that occurs; if the union representatives are notified "We will be very happy
as we have been, to come to the site and do whatever is possible for them." Barnes
also testified, "And I went on to tell them that I am also told about some other
activities around here." In no part of his testimony does Barnes recount that he
told his audience that Yeras had been reinstated or that he referred to Yeras by
name. The portion of testimony described above is the closest approach that Barnes
apparently made to the Yeras affair. Since Barnes was speaking to the Spanish-
speaking employees in their language, the aforementioned omission regarding the
alleged reinstatement is difficult to understand.
We return now to Yeras. After the events outside the plant on the morning of
September 12, previously described and involving, in various degrees. Yeras, Woll-
man, Stern, and Barnes, Yeras went to the Spanish restaurant. There he met
Brown and Riccardi and also Ramos. Pursuant to arrangement made the preced-
ing night at the Local 424 meeting, Ramos had the Local 424 cards that had been
signed by the employees. It is not entirely clear exactly what transpired at the
restaurant but it is clear that Ramos either refused to give the cards to the organizers
or he gave them and took them back. There was some disagreement and show of
feeling between Ramos and Brown regarding the possession of the cards. Ramos
testified that he did not like Brown's eagerness to have the cards and that he decided
that there was something suspicious about the organization. In any event, Ramos
left the restaurant with the cards in his possession His friend, Yeras, left with him.
After leaving the restaurant Ramos and Yeras went back to the plant. Yeras
remained outside on the street. Upon entering the plant Ramos went immediately
to Morris Stern and spoke to him. No one else was present during the conversation,
although at the time Wollman and Barnes were in the plant and Barnes was address-
ing the employees as previously described.
Before describing the Ramos-Stern conversation, it is pertinent to set forth my
impression of Ramos as a witness. He was one of the two witnesses called by the
General Counsel, Yeras being the other. Ramos can be regarded as a crucial witness
but although called by the General Counsel he was a reluctant witness. His attitude
and his statements manifested this. He evidently wanted to forget about Local 424
and the activities of September 1962.16
I did not regard Ramos, under the circumstances, as a partisan witness for the
General Counsel and I regard the following testimony as substantially credible
Ramos testified that he opened his conversation with Morris Stern by saying,
I'm going to rip [tear up] the cards. Will you take Luis [Yeras] back?"
Stern said, "No." Ramos asked if Yeras was discharged because of the new union
and Stern again said, "No." 17 Stern referred to his meeting with Yeras the preceding
evening and said that he was pretty sore at Yeras, that Yeras had cursed him. Ramos
said, "Maybe he [Yeras] was excited, maybe you misunderstood, give him a chance,
anyway I am going to tear up the cards, let's forget about the whole thing." Stern
said, "All right, Yeras can come back."
Morris Stern testified that the conversation was brief and that Ramos made no
reference to cards. According to Stern, Ramos asked him to take back Yeras.
Stern, referring to his encounter with Yeras the evening before, said that Yeras
is The following remarks made by the witness in the course of direct examination are
Illustrative . " . do I have to answer all those questions or can I refuse and get it
over with because I have nothing to say. We are not interested in this new union [Local
424] no more We want to stay the way we are "
17 The chronological order in which this particular question and answer appeared is not
entirely clear but I believe it was probably at the point indicated above
WEAR EVER SHOWER CURTAIN CORP. 281
had insulted him. Ramos then said that Yeras did not "mean it. Maybe he lost
his head. He is sorry and he wants to come back to work." Stern said, "No."
"Later I [Stem ] went over and I told him [Ramos], all right, call Luis back. Let
him go to work." At the hearing Stern said that by "Later" he meant that it was
a matter of a few minutes. He also testified that although he had previously
decided to rehire Yeras, he first gave Ramos a negative answer because he wanted
to "make it a little hard to get to." 18
Following his conversation with Stern, Ramos left Stern and opened a window
in the plant . He called down to Yeras to come in. Ramos then went to his place
of work at the shipping table and en route passed Wollman. Ramos testified
credibly that Wollman came over and asked to see the cards. Ramos said to her
that as long as everything was forgotten there was no sense in looking at the cards
and he thereupon tore up the cards and threw them in a box alongside the table.
Wollman reached in the box and grasped some of the torn cards and Ramos evidently
grasped some or most of the others and subsequently gave them to his sister. No
one else was present during this episode.19 Ramos does not describe what happened
thereafter. Wollman's version is that she saw Ramos and Stern together, off by
themselves. Then Ramos came back and, as he passed her, he said, "Yetta, I tore
up the cards. We want to forget it, we made a mistake." Wollman said nothing
and Ramos went to the table and threw the torn up cards in a box beside the table.
Wollman went over to the box and took out some torn cards. Ramos took her
hand and said, "Please, Yetta, we made a mistake, forget about it." Wollman
dropped the cards back in the box and walked away.
Yeras, testified that when he came into the plant shortly after 1 p.m. on Septem-
ber 12, pursuant to Ramos' summons from the window, the following statements
were made to him by Ramos: "He [Ramos] say you come back to work. He say
I [Ramos] broke [tore up] the paper [the cards]. Everything going to be all right.
We going to forget everything about a union . We start [stay?] the way we are.
And this is the way we want to stay. No new union. Stay with the old union."
Ramos also said to Yeras, "They no fire you because you [no or not?] work over-
time, [but] because you speak something bad with the boss yesterday. That is the
reason they fire you, because you say something bad to him." Yeras testified that
he then went to Morris Stern and, "I told Morris I don't say nothing bad to him.
He say okay, Luis, forget it because [but?] I hear something like that you know.
I say, No, Morris, I no speak nothing bad to you [I did not say anything bad to
you?]." Sidney Stern then came over to Yeras and said that everything was all
right. Yeras, about this time, also said to Wollman that "I'm sorry whatever I do
[I'm sorry for whatever I did?]." Yeras also testified that he said, "I forget about
the new union , everybody forget about the new union and we start work." Wollman,
according to Yeras, ". . . she speak with everybody ... she say it is all right, you
know, because I apologize." Yeras was back at work approximately 5 hours after
his discharge. He was paid for the time he lost 20
Conclusions
Careful consideration of the evidence pursuades me that on September 11 both
Respondents were aware that some union was engaging in an organizational effort
among the Wear Ever employees. Wollman came to the plant on September 11
because of a report of such activity and she spoke to the employees on the subject 21
Morris Stern was aware that two men, whom he had observed outside the plant,
were dealing with his employes. The circumstances thereof must reasonably be
interpreted as conveying to Stern that a union organizational effort was going on
among his employees. Further, at least the general nature of Wollman's visit
and the nature of her information on the subject, can reasonably be inferred to have
"'Consistent with his theory of the case, the General Counsel then asked Stern :
Q How hard do you make it's He has to tear up the cards to Local 4249
Stern then said that it had nothing to do with cards, that he knew nothing about cards,
and that Ramos at no time mentioned cards
11 The evidence does not show that Ramos' sister was present In fact, the record does
not indicate whether or not his siter was an employee
20 Wollman had testified that when , that morning on the street , she had persuaded
Morris Stern to reinstate Yeras she had not mentioned the lost pay . Later, when she
first went into the plant that noon, she spoke to Stern about paying Yeras for his lost
time and Stern agreed to do so.
a In this section of the report , I shall not repeat all the evidence heretofore set forth
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been known to Stern in view of the long-established relationship of the Employer
with both Wollman and Local 95.
As to whether, prior to the evening of September 11, Stern was aware of Yeras'
activity or sympathy with Local 424, I am not convinced that he was aware. Yeras'
activity was minimal. However, on September 11, about 19 employees did not
work overtime but went to a Local 424 meeting that was held between 4:30 and
5 p.m. Apparently, all but Yeras had advised the Employer that they would not
work overtime. In the context of the events of the day, including Wollman's mis-
sion to the plant and Stern's admitted awareness that there was an unsual atmosphere
in the plant, "a little disturbance," even a less alert individual than Stern would
perceive some connection between the exodus at 4 p.m. of a substantial group of
employees who had declined to work the customary overtime and the efforts of the
other union to organize the Wear Ever employees. Stern impressed me as a mentally
alert individual and I believe that his encounter with Yeras that evening confirmed
his suspicions or his awareness of what was going on.
Yeras was a good employee. His work had not been criticized and he had not
previously refused to work overtime except when he was ill or for some other
legitimate reason. His personality appeared to be one of politeness, appropriate
deference, and lack of aggressiveness. But on the evening of September 11 when
Stern asked him about not working overtime when he had promised to do so, Yeras
simply said he had had to go some place and he had come back to wait for a
friend. Thereafter, Stern gave orders to discharge Yeras.
In my opinion the evidence, including subsequent events that reveal Stern's de-
sire to eliminate the rival union activity, warrants the conclusion that Stern con-
nected Yeras' conduct and attitude with the atmosphere of unrest in the plant. That
atmosphere in turn was attributable to the activity of another union among the em-
ployees, and Yeras, on the evening of the 11th, by his presence at the plant after
the union meeting, clearly had manifested that he had not refused to work over-
time in order to go home or for some "legitimate" reason, but because of some
group activity in which some 19 other employees had participated. In context,
such activity could be nothing else but the union activity of the other union. The
discharge for such activity was discriminatory within the meaning of Section 8(a) (1)
and (3) of the Act and was calculated to arrest the rival union activity among the
employees.
Although Yeras' action in leaving the plant at 4 p m , after saying that he would
work, was wrong and censurable, I do not believe that he was discharged for that
reason or because of his conversation with Stem on the same evening. At Wear
Ever, employees were not required to work overtime and it was optional. It is true
that Yeras' dereliction was more than a refusal to work overtime but the optional
aspect of overtime and Yeras' past record of working overtime when requested,
make his offense on this one occasion less impressive as a ground for discharge, at
least in view of other evidence in this record.22
When Yeras was discharged on September 12 the reason given was, in substance,
that he was not a good worker in view of the fact that he did not want to work
overtime. I am satisfied that this was substantially what was told to Yeras by
Sidney Stern. If Yeras had cursed Morris Stern on the preceding evening I be-
lieve that Morris would have assigned this reason to Sidney and the latter in turn
would have advised Yeras that he was discharged for cursing "the boss." If the
cursing had occurred, it would be the easiest and simplest reason to assign for the
dicharge. Moreover, if, as Morris states, Yeras had called him an s.o b. on the
evening of the 11th, I am inclined to believe that Morris would have reacted im-
mediately to such conduct and would have told the employee that he was discharged
forthwith.
My basic reason for believing that Yeras did not curse Stern was my estimate
of Yeras' personality, the circumstances, including Yeras' lack of anger or cause
for anger on September 11, and the credibility of Yeras as a witness. There are
additional reasons for my credibility finding. After his discharge on the 12th, Yeras
left the plant. As he passed Ramos he said that he had been terminated. He had
no opportunity to talk about the details to Ramos until noon at the Spanish restaurant
and on their way back to the plant after meeting with the Local 424 men in the
restaurant. At the hearing, neither man was asked what, if any, conversation
they had with each other during this noon period. 23 I find it inconceivable to believe
that Yeras and Ramos, who were friends and who had been in the Local 424
matter together, did not discuss Yeras' discharge, including why he was discharged
2'- Wollman testified that in the more than 10 years during which she had serviced the
Wear Ever plant "I don 't think I have ever had a firing there "
23 The materiality of such an inquiry would not be readily apparent
WEAR EVER SHOWER CURTAIN CORP. 283
and what reason the Employer had given for such action. It is equally inconceivable
that in their speaking with each other for the first time since the discharge they
would not have spoken frankly. If Yeras had cursed Stern on September 11 or if
such reason had been given as the cause of the discharge (and I am certain that it
would have been, if the cursing had occurred), Yeras would have so informed
Ramos. He had no reason to do otherwise in the circumstances described and no
motive existed for dissimulation between them on this item. Since Ramos there-
after went immediately to see Morris Stern and did so, I find, principally and
not incidentally because he wanted to prevail upon Stern to rehire Yeras, Ramos
would have addressed himself in the first instance and mainly to the cause of the
discharge in fact, and as assigned by the Employer when making the discharge.
I believe that Ramos would have said to Stern at the beginning of their conversa-
tion that Yeras wished to apologize or he had been excited or something of that
nature. Initially, Ramos said nothing to Stern about the alleged cursing and he
spoke only about the union cards. It was Stern who brought up the matter of the
bad language and it evidently was the first that Ramos had heard about the cursing.
He the improvised some excuse on the subject. Confirmation that Ramos (and
Yeras) were surprised about the cursing allegation is found in their private con-
versation when Yeras came into the plant after the Ramos-Stern talk. In addition
to saying that he had torn up the union cards, the first thing that Ramos told Yeras
was that Yeras had not been discharged because of his failure to work overtime
but because he had used bad language to "the boss." Quite clearly the employees
would not have thus mentioned the alleged cursing as something new or note-
worthy if they had known all along or even suspected that Yeras had cursed Stern
and had been told that he was discharged for such reason. These two men were not
trying "to kid" one another. Finally, it is to be noted that after Stem had agreed
with Ramos to rehire Yeras and after the latter had been so advised, Yeras spoke
to Stern. He went to Stern because of what Ramos had told him about the alleged
cursing. At that point, when the matter was over, I believe that Yeras, if he had
in fact cursed Stern, would have simply apologized and said that he was sorry for
what he said. Instead, Yeras said to Stern, twice, without qualification, that he
was sorry but that he had not cursed him. Under the circumstances, Yeras' clear
denial is significant. A less honest and more sophisticated person, at that stage,
might well have apologized and said he was sorry for what he said or simply that
he was sorry, even though he knew that he had never said anything bad 24
Having been convinced that Yeras had not cursed Stern and that he was not told
at the time of discharge that he was terminated for that reason, a substantial suspicion
arose as to Respondent's motivation and as to various testimony in the record.
In ascertaining the facts, it was necessary to consider all aspects of the events,
including the role of Local 98, even though the complaint allegations against that
organization were of a limited nature. The evidence persuades me that Local 98
was not consulted beforehand about the discharge and did not participate therein.
I also find that when Wollman and Barnes came to the vicinity of the plant at 11:30
on September 12 they were not aware that Yeras had been discharged. When Woll-
man spoke to Yeras she learned of the discharge. I find, however, that when she
asked Yeras the reason assigned by the Employer, he told her what Sidney Stem
had said. I do not credit Woliman that Yeras said that he had been accused of
cursing the boss. I find that Woliman, before speaking to Stern, did tell Yeras
that she would get him back to work, and that Barnes said the same thing while
he was speaking to Yeras during the Wollman-Stern conversation. It is also my
finding that, after speaking with Yeras, Woliman did speak to Stern initially and
asked him to rehire Yeras. Exactly what the entire conversation was I do not
know.25 I have previously described and analyzed the fact that neither Wollman
(nor Barnes) nor Stern informed Yeras that he could go back to work or that he
was in fact reinstated. The reinstatement did not in fact occur nor was Yeras in-
formed of the fact until Ramos spoke to Stern. It is possible that Stern in talking
24 With Yeras denying the cursing, Stern could not very well say that he agreed with
Verse' statement eo lie said that be had heard "something" but to forget the whale thing.
Stern's testimony, of course, was not that he believed Yeras had cursed him or had mut-
tered some hidden epithet but that Yeras said, "that son-of-a-bitch "
2E "The findings . . . are to be considered for made] along with the consisting and
inherent probability of testimony. . . Universal Camera Corporation v. N.L R.B., 340
U S 474, 496 The trier of fact may be unconvinced that the witness' testimony is ac-
curate and may conclude that "the truth is the opposite of his story [or that the truth
lies somewhere other than in either extreme]." N.L R.B. v. Walton Manufacturing Com-
pany & Loganville Pants Co, 369 U S. 404, citing Dyer v. MacDougall, 201 F. 2d 265, 269.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Wollman had refused to reinstate Yeras or had said that he would think it over.
However, I believe that Wollman did point out to Stern that the discharge would
not stand up, and that she advised Stern to reinstate Yeras. It is my opinion that
Stern, in effect, said that he would go along with that position but that both Woll-
man and Stern did not intend to and did not in fact effectuate the reinstatement im-
mediately. The failure to notify Yeras at that time or to seek to find him or to
advise him of the matter thereafter indicates that the inaction was deliberate.
Wollman's principal concern was to keep the employees in the ranks of Local 98
and to defeat the rival Union's activity. There was nothing that indicated to her
that Yeras was the leader and it was to Ramos, not Yeras, that she had spoken on
the previous day. The events of the evening of September 11, as described to her
by Stern, still did not indicate to her, I believe, that Yeras was a leader. At most,
he probably appeared to be one employee among others who had been reached
by the other union.26 What Wollman and Barnes wanted to do, and this is why
they came to the plant in the first place, was to speak to the bulk of the employees,
appraise the general situation, and to keep it in hand. More specifically , Barnes was
to address the employees in Spanish and this he did He was still speaking when
Yeras came into the plant (after Ramos had told him to come, following Ramos'
conversation with Stern). It appears probable to me that after Barnes' speech,
Wollman might then have sought out Yeras, told him he was being rehired, and
possibly would have personally conducted him to Stern for the final action. In
any event, Wollman did nothing, at any time, after her conversation with Stern
outside the plant, to actually advise Yeras of his reinstatement or to finalize the
renstatement.
Wollman's testimony, that, when she came into the plant after lunch on Sep-
tember 12 and was surrounded by employees asking what had happened to Yeras,
is not inconsistent with the findings and observations above. The great interest
manifested by the employees in the Yeras' matter may have surprised Wollman.
The employees were indicating a pro-Yeras sentiment and Wollman told them
that Yeras was coming back to work. She did not say that Yeras had been reinstated
or that the boss had taken him back but that he was coming back. Under other
circumstances the difference in phraseology might have no significance. But, under
the instant posture, it is to be noted that Yeras was still not back in the plant and
Wollman made no effort even at that point to communicate with him or to seek to
do so. Moreover, this rather limited statement of Wollman was not addressed in
Spanish to the Spanish-speaking employees and Barnes, in his speech in Spanish,
said nothing about Yeras being reinstated or that he was coming back to work.
In considering the nature of the Wollman-Stern conversation and the subsequent
events up to the Ramos-Stern conversation, I have, in the preceding paragraphs,
endeavored to reconstruct parts of the situation from certain credited facts Perhaps
the reconstruction is unnecessary and the findings and credibility resolutions are
sufficient. In short, viewed in the context of the facts in the case, I was not con-
vinced that Yeras was in fact reinstated at the Wollman-Stern talk or that it was
the parties' intent at that point to finalize their agreement. I have drawn certain
inferences regarding Wollman's approach to the situation In the same context,
it is my opinion, that Stern, while agreeing to go along with Wollman, had done
nothing about actually communicating with Yeras. I believe that there was either
an express or tacit understanding that Wollman would handle the matter of Yeras'
reinstatement and that Stern would not take the initiative in actually reinstating
Yeras. What changed this picture and brought about the actual rehiring of Yeras
earlier than would have otherwise been the case was the unexpected appearance of
Ramos in Stern's office, around 1 p.m. on September 12, and the statements made
by Ramos on that occasion.
When Ramos came to Stern and said that he was going to tear up the cards,
Stern knew what he was talking about. At no time in the conversation did Stern
ever express ignorance of what cards it was to which Ramos was referring. Clearly
Ramos was not talking about Local 98 cards and Stern was therefore aware that
the cards were those of the rival union In spite of Ramos' statement regarding the
cards, Stern said he would not take back Yeras. Having been told what Ramos
was willing to do and what Ramos wanted from him, i.e., Yeras' reinstatement,
Stern admittedly played "hard to get" and wanted to "make it [Yeras' reinstate-
menti a little hard to get to." In order to accomplish the foregoing, Stern refused
to reinstate Yeras and brought in the assertion that he was mad at Yeras for having
cursed him. This was a face-saving allegation and bargaining device in my opinion.
' If Wollman had believed that Yeras was the leader I have no basis for concluding
that in such a posture she would have acted differently at this stage or otherwise
WEAR EVER SHOWER CURTAIN CORP. 285
Ramos, hearing about the alleged cursing for the first time, said that maybe Yeras
was excited and give him a chance. However, Ramos, with reasonable preception,
also reaffirmed that he was going to tear up the cards. It was then, for the first
time that day, that Stern said, as he testified, "All right, call Luis back, let him go
to work." 27
Although Stern had previously agreed to go along with Wollman's advice 28
iegarding Yeras but with no immediate execution of their understanding, Ramos'
unexpected conversation and offer came as a windfall. Stern capitalized on the
Ramos offer and conveyed the idea and impression to Ramos that the destruction
of the cards and the implication of this act of destruction were at least not immaterial
factors in Yeras' reinstatement.29 Stern at no time indicated to Ramos that the tear-
ing up of the cards was of no interest to him and had nothing to do with the re-
instatement of Yeras. Even the allusion to the cursing, as the thing that had greatly
angered or upset Stern and caused him to discharge Yeras, was not very convincing
and no condition was imposed that Yeras would have to apologize to Stern before
he would be taken back. Under these circumstances I am persuaded that the afore-
described utilization of the situation in Ramos' conversation with Stern was an act
of interference with the rights of employees and that it was violative of Section
8 (a)( I) of the Act.
With regard to Local 98 the complaint alleges that Respondent, through Woll-
man, engaged in surveillance by examing the Local 424 cards. The evidence re-
garding'the incident has been previously described. I believe that Wollman asked
Ramos if she could see the cards. Ramos replied that the Local 424 episode was
all over and there was no point to seeing the cards. He then tore up the cards
and threw them in a waste receptacle. Wollman reached in and grasped some of the
torn cards. Ramos secured some of the other torn cards. The evidence does not
satisfy me that Wollman read the cards and I credit her testimony that she promptly
dropped the cards back in the receptacle when Ramos told her to forget the matter.
The strongest aspect of the evidence and its basic import is that Wollman was in-
terested in knowing what employees had signed Local 424 cards. She asked to
see the cards and then made an attempt to secure some of the torn cards. Her
efforts did not come to fruition and were abandoned. I am not persuaded that this
incident constitutes restraint and coercion within the meaning of Section 8(b) (1) (A)
of the Act either alone or in the context of the evidence in this case.30
='7 Aside from the fact that I am convinced that the cursing had not occurred, I am
unable to accept Stern's testimony that the cards were never mentioned by Ramos but
that he simply came to Stern and asked him to reinstate Yeras In the approximately 5
hours between Yeras' discharge and Ramos' conversation with Stern, Ramos had made
no request to Stein about Yeras If Ramos made a bald request to Stern at 1 p in there
is no ieason why the same kind of a request could not have been made before. Ramos,
I believe, never made a bald request because lie reasonably believed that he would have
to be able to offer something some persuasive reason why Yeras should be rehired. It
was not until the lunch period that Ramos reached a decision about Local 424 and the
cards He then came to Stern because he had something persuasive to offer and I believe
that he did, as he testified, state that he was going to tear up the cards.
J9 The term is used accurately as the circumstances of that conversation reveal More,
over, Stern testified that he informed his brother thereafter that he deemed it "advisable"
to reinstate Yeras.
20 It is interesting to note that when Ramos called back Yeras he told him two things :
that the Company had said that It was cursing that caused the discharge but Ramos
told Yeras that he was tearing up the cards and that "we" are going to forget about the
new union and stay with Local 98 Yeras knew, and I also believe that Ramos knew,
that the cursing was a fiction
'0 Other than the alleged surveillance incident, the complaint contains no other allega-
tion against Local 98 There is no allegation of threats. When the General Counsel
Sought to go into the issue of an alleged threat by Wollman, the Trial Examiner sustained
the objection thereto The General Counsel made an offer of proof, apparently with re-
spect to a conversation between Wollman and Ramos on September 11 and not on
September 12 when the cards were torn up The offer was that Wollman threatened to
close the factory "if Local 424 were to replace Local 98 " Under the pleadings and with
no motion having been made to amend the complaint, the evidence was, I believe, properly
excluded Even if admissible, the threat was as to what would happen if all or a ma-
jority of employees shifted to Local 424 and if the latter became the exclusive bargaining
agent in the plant It was not a threat to discriminate against some individual card
signers whose cards Ramos had in his possession and under circumstances where Local
424 had not supplanted Local 98
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
Having found that there have been violations of the Act by Respondent Wear
Ever, it will be recommended that Respondent Employer cease and desist there-
from . Although there is no reinstatement or backpay involved in this case , it will
be recommended that the employes be advised by their employer , by means of a
notice, of the basic provisions of the Act, namely , that employees are free to exercise
the rights guaranteed under Section 7 of the Act without reprisal and that the em-
ployer will not interfere therewith by discrimination or otherwise . The circum-
stances are such that I shall recommend that the notice be in both English and
Spanish.
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaged in commerce within the mean-
ing of the Act.
2. Respondent Local 98 is a labor organization within the meaning of the Act.
3. By discriminating against Luis Yeras by terminating his employment because
of his union activities , Respondent Employer engaged in unfair labor practices within
the meaning of Section 8(a)(3) and ( 1) and Section 2(6) and (7) of the Act.
4. By conveying to employee Eddie Ramos the reasonable impression and belief
that the destruction of Local 424 employee cards was relevant and material to the
matter of employee Luis Yeras' reinstatement and was a factor in such reinstate-
ment and by effectuating the reinstatement under such circumstances , Respondent
Employer engaged in unfair labor practices within the meaning of Section 8 (a)( I)
and Section 2(6) and (7) of the Act.
5. Respondent Employer has not otherwise violated the Act.
6. Respondent Local 98 has not violated Section 8 (b)(1)(A) of the Act as
alleged.
[Recommended Order omitted from publication.]
Alsar Manufacturers , Inc. and Roosevelt Holloway and Samuel
L. Kelly. Cases Nos. 7-CA-3947 and 7-CA-3947(2). June 28,
1963
DECISION AND ORDER
On April 11, 1963, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondent 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 attached Intermedi-
ate Report. He also found that the Respondent had not engaged in
other unfair labor practices and recommended that the complaint be
dismissed as to them. Thereafter, the General Counsel and the Re-
spondent filed exceptions to the Intermediate Report and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
143 NLRB No. 58.