Kellburn Manufacturing Co., Inc.

In the Matter of KELLBURN MANUFACTURING COMPANY, INC., and HUDSON VALLEY DISTRICT , INTERNATIONAL LADIES' GARMENT WORK- ERS' UNION, A. F. OF L. Case No. -C- 832. Decided March 17, 1.944 DECISION AND ORDER On November 27, 19431 the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in unfair labor practices affectir commerce and recommending that it cease and desist therefrom and that it take certain affirmative action, as set forth in the copy of the Intermediate Report annexed hereto. Thereafter, the respondent filed exceptions to the Intermediate Report. No brief has been submitted. The Board has considered the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The Trial Examiner's rulings are hereby affirmed. No request for oral argument was made by any party, and none was held. The Board has considered the Intermediate Report, the exceptions thereto filed by the respondent, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified below : 1. On August 28, 1943, as the Trial Examiner found, the respond- ent posted in the plant a notice urging its employees to designate an employee committee to act as their representative for the purpose of dealing with the respondent with respect to grievances. However, since the Trial Examiner did not consider the incident to be within the scope of the complaint, he made no finding as to whether such con- duct was violative of the Act. While the posting of the notice by the respondent was not explicitly alleged in the complaint as an unfair labor practice, it is our opinion that such conduct is a form of union hostility, as found below, and as such is encompassed by paragraph 14 of the complaint. Besides, the posted notice was litigated without ' Said paragraph 14 alleges, in substance, inter aha, that the respondent expressed dis- approval of the Union and urged, persuaded, threatened, and warned its employees to refrain fromn assisting or joining the Union. 55 N. L R. B., No. 101. 540 KELLBURN MANUFACTURING- COMPANY, INC. 541 objection at the hearing. We shall therefore make a substantive deter- mination of the issue. The record shows that the notice was posted shortly after the Union began to organize the respondent's employees and after the respondent had otherwise, as fully set forth in the Inter- mediate Report, manifested hostility toward the Union. In the light of the circumstances, it is apparent and we find that the respondent, by suggesting in the posted notice that the employees form an em- ployee committee to bargain directly with the respondent, sought to eliminate the Union as a prospective bargaining representative for the employees and to substitute therefor an employee grievance commit- tee. The notice was an integral part of the respondent's entire course of illegal conduct, as set forth in the Intermediate Report, designed to forestall legitimate union organization and activity. We find that, by posting such notice, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Sec- tion 7 of the Act. 2. The Trial Examiner has found, and we agree, that in a prior representation proceeding, pursuant to the results of an election con- ducted therein by the Board among employees of the respondent within an appropriate unit. the Union was duly certified as the ex- clusive bargaining representative of such employees,2 and that there- after the respondent refused to bargain collectively with the Union, within the meaning of Section 8 (5) of the Act. The respondent admits that it has refused to bargain with the Union but challenges "the said election, the manner in which it was conducted and the results and the directives issued thereon." In the present proceed- ing, however, the respondent has raised no issue with respect to the election which has not been heretofore presented by the respondent and determined by the Board in the representation proceeding. We have again considered the issues in the representation proceeding and find that no prejudicial error was committed therein. The prin- cipal issue there concerned the eligibility to vote of employees al- legedly discriminatorily discharged, of strikers, and of strikebreakers. Over the objection of the respondent, Ave excluded from participation in the election, as voters, among others, persons first hired during the strike and subsequent to the respondent's rejection of the strikers' unconditional offer to return to work,3 and permitted, among others, the strikers and the employees, allegedly discriminatorily discharged, to vote, impounding the ballots of the latter group pending the out- 2 Matter of Kellburn Manufacturing Company, Inc, and Hudson Valley District, Inter- national Ladies' Garment IVorlers' Union, A I' of L, 45 N L. R. B 322, Certification of Repiesentatives issued on March 4, 194:1 'In our decision in the representation case , the Board stated ". . . the striking em- ployees, upon making an unconditional offer to return to work, thereby acquired a right to available lobs which for the purposes of determining eligibility to vote, is superior to the right of employees hired after the unconditional offer. ' 45 N L R. B 322 at 327. 542 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD come of the election or disposition of the charges herein.4 Our deter- mination that such persons were eligible or ineligible to vote, as the case may be, is fortified by our findings herein that the respondent discriminatorily discharged the employees referred to above, that the strike was caused by the respondent's unfair labor practices," and that the strikers did not voluntarily quit and sever their employment relationship as the respondent contended .6 3. The Trial Examiner has found that Judy Robinson, one of the strikers listed in Appendix B of the Intermediate Report, was dis- criminatorily denied employment by the respondent on September 26, 1942, and has recommended that she be offered reinstatement with back pay. However, the record shows that Judy Robinson was sub- sequently reemployed by the respondent in March 1943 and that, after working a day or two, she voluntarily quit her job with the respondent. We shall therefore not require the respondent to offer Robinson reinstatement and shall limit her back pay to the period from September 26, 1942, the date that she was discriminatorily de- nied reinstatement, to the date of her reemployment in March 1943. 4. The Trial Examiner's formula, set forth in the section of the Intermediate Report entitled "The Remedy," for effecting the rein- statement of all employees entitled thereto,' in the event there is in- sufficient work for all such employees, is hereby clarified as follows : All persons hired after September 18, 1942, the date of the commence- ment of the strike, shall, if necessary to provide employment for those to be offered reinstatement, be dismissed. If there is then not suf- ficient work available for all employees, namely, the presently working non-strikers and the employees to be offered reinstatement, all avail- able positions shall be distributed among them without discrimination against any employee because of his union affiliation or activity, fol- lowing the system of seniority or other non-discriminatory practice heretofore applied in the conduct of the respondent's business. Those employees, if any, remaining after such distribution, for whom no em- ployment is immediately available, shall be placed upon a preferential list and thereafter offered employment in their former or substantially equivalent positions as such employment becomes available and before other persons are hired for such work, in the order determined among them by said system of seniority or other non-discriminatory practice. ' The Board also permitted persons hired for the first time during the stiike but before the strikers ' unconditional offer to return to work, to vote, and directed that their ballots be similarly impounded. 5 Replacement employees hired by an employer during an unfair labor practice strike are not entitled to participate with striking employees in an election to select a bargaining representative. N. L. R. B. v. A. Sartorious & Co., Inc. (C. C. A. 2), decided January 31, 1944, 13 L. L R. 725. In view of the number of votes cast for the Union at the election, the ballots ordered impounded, as set forth above, could not have affected the result of the election. 7 The persons entitled to reinstatement include the 11 employees unlawfully discharged by the respondent as well as the strikers discriminatorily refused reinstatement. KELLBURN MANUFACTURING COMPANY, INC. ORDER 543 Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Kellburn Manufacturing Company, Inc., Saugerties, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Hudson Valley District, International Ladies' Garment Workers' Union, A. F. of L., as the exclusive representative of all employees of the respondent, exclusive of non-working supervisors and office and management employees, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Discouraging membership in Hudson Valley District, Interna- tional Ladies' Garment Workers' Union, A. F. of L., or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment or any term or con- dition of their employment,; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Upon request, bargain collectively with Hudson Valley Dis- trict, International Ladies' Garment Workers' Union, A. F. of L., as the exclusive representative of all employees of the respondent , exclu- sive of non-working supervisors and office and management employees, with respect to rates of pay, wages, hours of employment, and other conditions of employment. (b) Offer to the employees listed in Appendices A and B hereto, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth hereinabove and in the section of the Intermediate Report entitled "The Remedy," and place those employees for whom employment is not immediately available upon a preferential list in the manner hereinabove set forth, and thereafter, in said manner, offer them employment as it becomes available ; (c) Make whole the employees listed in Appendices A and B hereto for any loss of pay they may have suffered by reason of the respond- 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's discrimination against them, in the manner set forth in the section of the Intermediate Report entitled "The Remedy"; (d) Make whole Judy Robinson for any loss of pay she has suffered by reason of the respondent's discrimination against her, by the pay- ment to her of a stun of money equal to the amount she normally would have earned as wages from September 26, 1942, the date that she was discriminatorily denied remstatenzent, to the date that she was reemployed by the respondent in March 1943, less her net earnings during that period ; (e) Post immediately in conspicuous places throughout its plant at Saugerties, New York, and maintain for a period of at least sixty (60) consecutive days, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c), of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order; and (3) that the respondent's employees are free to become and remain members of Hudson Valley District, International Ladies' Garment Workers' Union, A. F. of L., and that the respondent will not discriminate against any employee because of his membership in or activity on behalf of that organization; (f) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. Mn. JonN M. Hous'roN took no part in the consideration of the above Decision and Order. A PPE YD IX A Walter Perce Freligh Robert Lewis Ida Smith (Benson) Donald Hauck Hazel Mazdin Clara O'Bryon Katherine Bulick Elizabeth Shackett Frank Hill George I. White Marie Dore APPENDIX B Grace Bennett Frank Brandt Augustus Brown Donald J. Brown Robert Brown Hazel Bruno Paul Buntel Herman Daley Peter Daley H. L. Daniels Marge Davis Mary Dc Cicco ' Tncoriectly spelled in Appendix B of the Intermediate Report KELLBURN MANUFACTURING COMPANY, INC. 545 Charles M. Diehl Wright Ennis Clara Erceg Berit Evgenis Wm. Farrell Eileen Ferguson Elizabeth Ferretti Lester Gardiner Kathrine Garrison Donald Gutheil Stella Haines Robert Haller\beck Ralph Hendricks Ethel M. Holcomb Clarence Hommel Victor 1. Hommel K. N. Houghtaling Charles Hudson Joseph Hull Martin Hull Ethel Humphrey Clinton Johnson Rose Jubie I. Tony Kremm John Lavelle Randolph Legg Emma McCarthy Luther Mickle Rose Mickle Anna Minkler 1 Evelyn Murphy Jeanette Murphy Collins Myer Clarence Myers Robert Myer James Myers Milton O'Bryon Thomas O*Connell Virginia Ostyic Dorothy Patterson Bertram Quick Edward Rickett Agnes Robinson Inez Reynolds Julius R. Schmidt Louise Schmid Freda Short Larry Spatz John P. Staerker Curtis Thies Alice Tompkins George Tymeson Jennie Westergard Robert Westergard Alfred Whitaker James Winters 'Louis Wrolsen 1 1NTERAIEDIATE REPORT Al', Richard J Hickey. for the Board. Mr 11Tax J Lovell, of New York City, for the respondent. Isserman. Isserinan, and Ifapelsohn-, by Air. Sol D. Kapelsohn. of Newark, N. J, for the Union. STATEMENT OF TI1E CASE Upon a third amended charge filed on June 17, 1943 , by Hudson Valley District, International Ladies' Garment Workers ' Union , A. F. of L, herein called the Union , the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region ( New Yolk City ), issued its complaint dated June 17, 1943 , against Kellburn Manufacturing Company, Inc, Saugerties , New York, herein called the respondent , alleging that the respondent had engaged in and was engaging in unfair labor practices , within 1 Incorrectly spelled in Appendix B of the Intermediate Report 5751 2 9-44-v-ol 55--36 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the meaning of Section 8 (1), (3), and ( 5) of the National Labor Relations Act, 49 Stat . 449, herein called the Act. Copies of the complaint , together with notices of hearing thereon, were duly seived upon the respondent and the Union With respect to the unfair labor practices , the complaint alleged in substance that the respondent : ( 1) on various dates during August and September 1942, discharged and thereafter refused to reinstate 11 named employees because of their union membership and activities ; ( 2) on and at all times after Sep- tember 26, 1942, refused to reinstate 73 named employees ' who on that date unconditionally applied for reinstatement , having on September 18, 1942, gone on strike against the respondent 's unfair labor practices , because they joined and assisted the Union , joined in the strike , and refused to work during its existence ; ( 3) on and at all times after March 24, 1943, refused upon request to bargain collectively with the Union which was at all such times the exclusive repiesentative of all of the respondent 's employees within an appropriate unit; (4) on and after August 26, 1942, vilified , disparaged , and expressed disapproval of the Union; interrogated its employees respecting their union affiliation; urged , persuaded, threatened, and warned them against assisting, becoming or remaining members of the Union ; and kept union meetings under surveillance; and (5 ) by such acts and statements interfered with , restrained, and coerced its employees in the exercise of the tights guaranteed in Section 7 of the Act. The respondent thereafter filed its answer dated June 28 , 1943, admitting certain allegations of the complaint with respect to the nature of its business, but deny- ing that it was engaged in commerce v^ithin the meaning of the Act, and the commission of any unfair labor practices. Pursuant to notice , a hearing was held at Saugerties , New York, from July 6 through 24, 1943 , before the undersigned , Josef L. Hektoen , the Trial Examiner duly designated by the Chief Trial Examiner . The Board , the respondent, and the Union were represented by counsel and participated in the hearing Full opportunity to be heard, to examine and cross-examine witnesses , and to intro- duce evidence bearing on the issues was afforded to all parties. At the close of the Board's case , counsel for the respondent moved to dismiss the complaint The motion was denied by the undersigned . At the close of the Board 's case and again at the close of the hearing , the motions of counsel for the Board to conform the pleadings to the proof in respect to formal matters were allowed by the under- signed without objection. Although afforded opportunity to do so, the parties did not argue orally before the undersigned or file any briefs with him Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, Kellburn Manufacturing Company, Inc, is a New Fork corpor- ation maintaining its office and place of business in Saugerties, New York. On November 2, 1942, the Board after hearing upon petition by the Union for the certification of representatives, issued its Decision and Direction of Election wherein it found that the respondent was "engaged in the manufacture of canvas products, namely, tents, pistol belts, pontoon cases, haversacks, and field bags for the United States Government. Most of the raw material used in manu- 1 At the close of the hearing, the complaint was dismissed upon motion of counsel for the Board as to three such employees : Harriet Quick, Mary Hennegan , and Jess Ricks. KELLBURN MANUFACTURING COMPANY, INC. 547 facturiug the above-named products is furnished by the United States Govern- ment, and is shipped to the Company's plant from depots outside the State of New York. The finished products are shipped to various points in the United States, mostly out of the State of New York, on Government bills of lading. Dur- ing the past 6 months, shipments of raw material and of finished products, re- spectively, exceeded in value $25,000." 2 At the hearing in the instant case, the respondent refused to divulge figures or estimates of the volume of its business,' but Verne P. Rathbun), its president, asked by counsel for the Board if the figures with respect to, its business regarding which he testified at the former hearing had changed, answered that they were "substantially the same." He also testified that the respondent's operations remained unchanged. The undersigned finds that the respondent is engaged in commerce, within the meaning of the Act. II. THE ORGANIZATION INVOLVED Hudson Valley District, International Ladies' Garment Workers' Union, is a labor organization affiliated with the American Federation of Labor. It admits employees of the respondent to membership. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; the events preceding the strike The respondent began operations in August 1", 1. General Manager George Ohley, a native of Saugerties with 35 years' experience in the canvas field, assisted President Verne P. Rathburn, who was without such experience, in setting up the plant's operations. Ohley was in charge of hiring employees. Local resi- dents were employed who, except for a few operators, were inexperienced per- sons, recruited, as Rathburn testified, "from farms and drug stores, . . . schools , people who had been discharged from other plants . . . derelicts floating around the town . . ." According to the respondent's management, they demon- strated unwillingness to learn or accept suggestions, were stubborn, wilfully slow, generally unadaptable, and prone to damage machinery by their improper operation thereof. On or about August 26, 1942, the respondent instituted a piece work system in one or more departments of the plant. In connection therewith it posted a notice to its employees informing them that the plant pay-day had been changed. Some employees interpreted the notice to mean that they would lose their over- time pay earned on the previous Saturday On the afternoon of August 26, a number of employees under the leadership of Warren Hauck, brother of Donald Hauck, one of those alleged to have been discriminatorily discharged, demanded that Ohley explain the matter. Ohley informed them that they would not lose their overtime pay and discharged Hauck for his part in the incident, calling him, according to Hauck, an agitator and saboteur. Ohley denied speaking to Hauck in this way and stated that he discharged Hauck because he shook his fist at him and threatened to "smash [his] nose." From the entire record, and because of Ohley's dubious credibility, hereinafter detailed, the undersigned finds that while Hauck was insubordinate, Ohley spoke to him as he testified' 2 Matter of Kellburn Manufacturing Company, Inc, et al., 45 N. L. R. B 322. The respondent maintained throughout the hearing that It was prohibited, by written and oral instructions from the War and Navy Departments, and the Federal Bureau of Investigation , from divulging this information . Its position in this respect did not differ materially from that adopted at the hearing on the petition for certification. ' Warren Hauck's discharge is not alleged by the complaint to have constituted an unfair labor practice by the respondent. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the evening of August 26, 1942,5 employees Lester Gardiner, Al Whitaker, and Walter P. Freligh met at the latter's home with Union Organizer Jacob Schneider Those present joined the Union, and received from Schneider blank membership applications to be distributed among their fellow employees On August 27, Frebgh distributed a 'number of applications at the plant dur- ing the noon hour At about 1 p in. of that day, according to Freligh, Ohley called him to his office, told him he was surprised at Freligh's action in distribut- ing applications, that he deemed it "sabotage'. and that he "was going to call up Washington" regarding it Freligh further testified that Ohleyy told him that he had always considered Freligh "a nice fellow", that lie had been in line for a good job, and thpt he should cease his activities in behalf of the Union When Freligh informed him lie could not, because other employees were also distribut- ing applications, Ohley told him, "I guess you better go home", but changed his mind and sent him back to work when Freligh informed him that if Freligh was discharged, "the rest would follow" him out of the plant. Ohley also took occa- sion to inform Freligh that he considered his conduct a "sneaky thing" in the absence of Rathburn who was in New York City.' Freligh protested that there was nothing sneaky about it and that if the employees desired to join a union, he saw no reason for their not doing so. He further testified that on Rathburn's return to the plant the following day, Ohley asked him if he knew, "who the big shot of the union was" and that Freligh replied that lie did not. Ohley denied neither conversation, his testimony being confined to answering in the negative when asked by counsel for the respondent, "Did yop ever at any time admonish {Frelighl about handing out union application cards"" He also denied knowledge of Fieligh's membership in the Union "on or about August 28th, 1942." The undersigned found Freligh a self-possessed and convincing witness whose testimony was entirely credible. Ohley, on the other hand, was a far less impressive witness whose obvious desire to assist the respondent in any way open to him i endei ed his testimony of dubious worth in the resolution of controverted issues. The undersigned, from all the ev idence, finds that Ohley spoke to Freligh substantially as testified by the latter On August 28, the day of Ratliburn's return to the plant,' at 4: 30 p. in., the respondent discharged employees Freligh, Smith (Benson), Mazdin, Bulick, Hill, Dore, and Lewis, and on August 29, at 8: 15 a. in, employee Donald Hauck s All were members of the Union. On the morning of August 29, Organizer Schneider telephoned Rathburn, in- formed him that the Union represented the majority of the iespondent's employees and requested that the dischaigees be reinstated. Rathburn declined to discuss the matter and an appointment for a meeting between them was made for August 31. On the afternoon of August 29, Kathryn V'ozchk, Rathbprn's secretary, on in- structions from Rathburn, went through the plant during working hours and caused each employee to indicate, by signing one of three sheets of paper carried by her, whether he was in favor of the American Federation of Labor, the Con- gress of Industrial Organizations, or a "company union*': desired no union; or was undecided. Rathburn explained that he took the poll in order to determine The respondent eniploied about 120 persons at this time Riithbuin had left Saugerties a day or two before . He returned on August 28 7Upon Rathbuiu 's return from New York, lie posted a notice to the employees to the effect that it they had grievances to discuss with him , they should appoint a committee of three to represent therm They did not do so The undersigned interprets the complaint and record to indicate that the Board does not Inge that the respondent by so doing has contiavened the provisions of the Act s Their discharges are discussed , infra. KELLBURN MANUFACTURING COMPANY, INC. 549 "where I stood" with reference to the sentiment of the employees in preparation for his August 31 conference with Schneider. About August 30 or 31, according to employees Judy Robinson and Emma Mc- Carthy, I+orelady Marion Uhilet told a group of women employees in the rest loom that "He ought to get rid of all the agitators " Ehrler testified that she told the employees present that there was "too much agitation through the shop" and that those who did not care to work or slowed up production should be discharged. As found above, Ohley characterized employees who indulged in concerted activ- ities as agitators and saboteurs The undersigned, upon the basis of- all the pertinent evidence, concludes and finds that Ehrler spoke to Robinson and Mc- Carthy as they testified and that, like Ohley, her notion of an agitator was one who engaged in concerted activities with other employees of the respondent It seems clear, and the undersigned finds, that she referred to Rathbnrn «lien voicing her opinion that "He" ought to get rid of all such employees. About August 31, Rathbuia discharged employee Lester Ga rdiner° allegedly for wasting mates i al and peunitting usable scrap material to be taken from the plant premises. When Gardiner piotested that he was in necessitous cir- cumstances, Rathburn asked, "Do you want to go back to work and keep your nose clean , or do you want a week's notice and leave now?" 1" Gardiner chose the first alternative and returned to work In view of the fact that Gardiner originally interested Schneider in oiganizing the plant and was thereafter active in soliciting union applications, the Board apparently contends that Rat) burn's statement constitutdtl an expression of anti-union sentiment by the respondent The testimony of both Gardiner and Rathburn respecting the incident and its background , is so inconsistent as to be impossible of reconciliation with facts otherwise established. The undersigned, although not free of doubt respecting Rathbuin's bona fides in the incident, makes no finding of unfair labor practices based thereon On August 31, Schneider met with Rathburn and Ohley, in the presence of Chenault Marksbury, government inspector assigned to the respondent's plant. Schneider unsuccessfully sought the reinstatement of the discharged employees. Rathburn questioned the Union's majority and Schneider declined to produce proof thereof, stating that unless the discharges were reinstated, the Union would file charges with the Board. Later the same afternoon, Ohley addressed the employees in the plant during working hours. According to witnesses for the Board," he told those present that a representative of the Union had called at the plant, clainied majority representation of the employees by the Union, but had been unable to prove his contention. Ohley added that if the Union carne into the plant, "lie" knowing nothing of the manufacture of ladies' garnients, would be forced to go out of business.l" Ohley denied mentioning the Union and testified that he told the employees that "they could join a union or not to [sic] join a union If they did not join the union, they would not be discharged" The undersigned finds that Ohley made the statements attributed to him by the Board witnesses. 9 Gardiner , who was the plant's cutter, caused $30 to $00 per week, and so far as is revealed by the record, was the highest paid employee in the plant. 11 Rathburn denied telling Gaidiner to keep his "nose clean " Fioni his observation of Rathbnrn during his lengthy appearances on the witness stand and from his entire testi- mony, the undersigned , particulaily because he belieses it to have been a location typically within his usual mode of expression , finds that Rathbuin made the statement attributed to inn,. 11 Gardiner, O'Bryon , Evgenis, and McCarthy. u The undersigned , from all of the surrounding ciicumstances , is convinced and finds that, by the pionoun "he", Wiley referred to Rathbnrn. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the evening of August 31,13 the Union held a meeting at a Saugerties hall During the course thereof, Schneider asked all those present who had not signed applications for union membership to stand. Among those who did so were employees Oscar Ehrler, husband of Foi elady Ehrler, and Al Smith. The Board contends that these employees represented the management and that their presence at the meeting constituted surveillance thereof by the respondent. The evidence reveals, however, that neither was a supervisory employee. The undersigned does not consider Ehrler's relationship to the plant's forelady to have, ipso facto, rendered his activities attributable to the respondent, and finds that it did not. He will, therefore, recommend that the complaint, insofar as it alleges that the respondent contravened the provisions of the Act by sur- veillance of union meetings, be dismissed. On September 2, the Union filed charges with the Board alleging that the respondent's activities consituted violations of Section S ( 1), (3) and (5) of the Act On September 4, the respondent discharged union members Elizabeth Shackett and Clara O'Bryon. On September 7, the Regional Office of the Board. notified the respondent that the Union had filed charges and requested that it send a representative to a conference regarding the matter to be held at the Regional Office on September 10. On September 7, Ohley again addressed the employees in the plant during working hours. He stated that a cash bonus payable to all employees and announced by bulletin posted in the plant about August 1,1' "had come through." After a recess, during which the bonus was distributed, Obley informed them that Rathburn was to attend the Board conference scheduled for September 10 and so that he might know their feelings with respect to the Union, all em- ployees were to indicate on the reverse of their daily production sheets whether they were in favor of or opposed to it. At quitting time that day, a member of the respondent's office force collected their production sheets and each employee, as directed by Ohley, was caused to record thereon his position regarding the Union.15 The September 10 Board conference was unproductive" and on the same day, the Union telegraphed the National War Labor Board, requesting its inter- vention "in threatened strike of [the respondent's] employees." On September 11, that board informed the Union that the matter had been by it referred to the United States Conciliation Service "who will be in touch with you." On September 14, Schneider, Conciliator R. B Somerville, and Michael Finn, of the labor relations division of the War Production Board, met with Ratliburn at the plant. Rathburn refused Schneider's request that the respondent recog- nize the Union as the exclusive representative of the employees and as to the discharges, stated that if "he thought it necessary," he would discharge 50 more.1T 13 The record is not completely clear as to the date of this meeting , there being some evi- dence that it occuried on September 3 The undersigned, upon the entire record, concludes and finds that it took place on August 31. 11 The time of disci ibution of the bonus had not been announced at that time, however. 15 The only exception, so far as is revealed by the record, aas George I White, whose ills- charge is hereinafter discussed. Ile testified, and the undersigned finds, that he refused to sign both the sheets circulated by Rathburn's secretary on August 31 and his September 7 production sheet 16 Contiary to the respondent's September 7 announcement, Rathburn did not attend the conference The respondent was represented by its fouuer counsel who stated that he knew nothing of the controversy and attended merely as an observer 11 Schneider's uniefuted testimony. KELLBURN MANUFACTURING COMPANY, INC. 551 On September 18, the respondent discharged union member George I. White and at 2 p m that afternoon a number of the union employees walked out. They were joined by others during the succeeding 3 clays and by September 21, 1942, all those listed in Appendix B of the complaint were on strike against the respondent. The undersigned finds that by warning and discouinging its employees against activity on behalf of and membership in the Union, and by interrogating them with respect to their union sympathies or affiliation, the respondent has inter- fered with, restrained, and coerced its employees in the exei disc of the rights guaranteed in Section 7 of the Act. B The stitike and the causes thereat Witnesses for the Board testified that the striking employees ceased work on account of the respondent's inquiries into their union sympathies, the discharges of union members together with the respondent's repeated refusals to rehire them and their consequent fear of loss of their own employment, and finally the re- spondent's discharge of White on the morning of the strike The respondent sought to show that the employees went on strike in order to force the respondent to recognize the Union 18 and in order to obtain a wage increase.'0 The chronology of events and all of the circumstances revealed by the record, particularly the fact that the strike, against which the Union' s officials had counselled the em- ployees 20 and on the day of which they urged the strikers to immediately return to work, was demonstrated to have been spontaneous, combine to convince the undersigned that the strike was caused by the respondent's unfair labor practices above and hereinafter found to have been committed during the period from August 26 to September IS, 1942, and prolonged by their continuing thereafter The undersigned finds that the strike which occurred on September 18, 1942, was a labor dispute caused and prolonged by the unfair labor practices of the respondent. C. The refusal to reinstate On September 26, 1942, the striking employees unanimously voted to uncon- ditionally return to work. Thereafter, on the same day, the Union through a committee consisting of Goodman, Sol D. Kapelsohn, its counsel, and Commis- sioner Somerville, met with Rathburn 21 and conveyed to him the unconditional offer of the employees to return to work. Rathburn stated that he had nothing to say and, in response to questions by Kapelsohn, stated that he did not know when he would reach a decision respecting the offer, if ever. He never thereafter took action respecting the Union's offer. The respondent contends that because the strikers received their pay in full immediately after the strike began, they resigned and ceased to be employees of the respondent This contention is without merit. Since the strike was caused and prolonged by the respondent's unfair labor practices, the strikers continued 18 Patrick Moylan, who so testified, did not name the source of his information to that effect. Moylan became a foreman during January 1943. "Employee Albeit Haines testified that the "ring-leader" of the striking employees so stated Ile could not identify his informant 2i The record reveals that both Organizer Schneider and Morton Goodman, district man- ager of the Union sought the aid of the National War Labor Board, the United States Con- ciliation Service, and the War Production Board, as well as that of the Board, in their efforts to pi event a work stoppage at the respondent's plant. 21Also present were Finn, of the War I'ioduction Board, and Lt J A. Myer of the Jeffersonville, Indiana, Quaitermaster Depot 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be employees of the respondent, within the meaning of the Act, and were en- titled to reinstatement to their former positions upon request. The undersigned finds that, by refusing reinstatement to the striking em- ployees listed in Appendix B hereof, at the time the Union unconditionally offered their return to work, the respondent, on September 28, 1942, and there- after, discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. D The refusal to bargain 1. The appropriate unit On November 2, 1942, the Board found 22 a unit composed of all employees of the respondent, excluding non-working supervisors and office and management employees, to be appropriate. Although the respondent in its answer filed in the instant proceeding denied the unit found to be appropriate, no evidence in support of this position was adduced by it. The undersigned finds that all employees of the respondent, excluding non- working supervisors and office and management employees, at all tines material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 2. Representation by the Union of the majority of the respondent's employees within the appropriate unit. Pursuant to the Board's Decision and Direction of Election,23 an election by secret ballot was conducted among the respondent's employees on November 19, under the direction and supervision of the Regional Director for the Second Region, who on December 3, issued his Election Report and on December 8, an amendment thereto. On February 1, 1943, the Board issued a Supplemental Decision and Direction" in which it ruled upon Objections to Conduct of Ballot and Election Report filed by the respondent and the Union, and directed that 20 of the ballots which were challenged should be opened and counted. After complying with the Direction, the Regional Director on February 16, issued his Supplemental Election Report showing that the Union received the majority of the largest possible number of valid votes cast in the election. On February 19, the respondent filed Objections to the Supplemental Election Report and on February 22, the Regional Director filed his answer thereto, finding the objections to be without merit. On March 4, 1943, the Board issued its Second Supplemental Decision and Certification of Representatives overruling the respondent's objec- tions and certifying the Union as the exclusive representative of the respondent's employees in the appropriate unit for the purposes of collective bargaining with respect to rates of pay, hours of employment, and other conditions of employment.' The undersigned finds, as did the Board, that the Union was on November 19, 1942, and at all times thereafter has been, the exclusive representative of all the respondent's employees in the appropriate unit for the purposes of collective 22 Sec footnote 2, supra 23 On November 7, 1942 the employer moved that the Board ieconsider its Decision and Direction of Election and on November 13, 1042, the Board issued an order denying said motion 24 47 N. L R B 217 25 No new matter bearing on the propriety of the election or the representation proceeding was introduced at the instant hearing KELLBURN MANUFACTURING COMPANY, INC. 553 bargaining with i expect to Cates of pay, hours of employment, and other conditions of employment. 3. The refusal to bargain On March 24. 1943, counsel for the Union wrote the respondent asking that it bargain collectively with the Union. The respondent did not reply. Asked at the hear ing by counsel for the Board whether the respondent refused to recognize the Union and bargain collectively with it, counsel for the respondent answered, . . the record speaks for itself" The undersigned finds that the respondent, on March 24, 1943,2' and at all times thereafter, has refused to bargain collectively with the Union as the ex- clusive 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. E The discharges 1. The background Rathburn testified that production in the plant was deficient during much of early 1942 and that in August, when the employees first became aware of, and objected to, the proposed piece woik rates that thereafter went into effect on August 29, it worsened He also testified that he consulted with Ohley respecting this condition, that about the middle of August, he and Ohley determined that the 11 employees who were thereafter discharged on August 28, 29, September 4, and IS, 1942, were those mainly responsible therefor, and that when he left for New York on August 24 or 25, he instructed Ohley, that if their work did not improve, they were to be discharged upon his return. On August 26, the Union had its genesis at employee l+rehgh's home. On August 27 and 28, he and the six other union members discharged on August 28, distributed membership applications and otherwise indulged in union activity in the plant. Both Rathburn and Ohley testified that they were unaware of the Union's drive in the plant on August 28, Rathburn stating that lie was first apprised thereof by Organizer Schneider on August 29, and Ohley, although he first insisted that he only became aware of the Union on September 18, the day of the strike, at length admitted to counsel for the Board that he had attended the above described Schneider-Rathburn conference on August 31 As hereinbefore found, Ohley was actually well aware of the Union's activities on August 27 and on that day threatened to discharge Freligh for his participa- tion therein. As to the remaining six employees discharged on August 28, the undersigned, upon the basis of their activities detailed mfia, and all of the circumstances revealed by the record, concludes and finds that when Rathburn returned to the plant at about noon of that clay, Oliley knew of their union activities as well. The denials of Rathburn and Ohley that the Union was mentioned in their conversation at that time are utterly unworthy of belief and are rejected by the undersigned who finds, from the entire record in the case, that Ohley thereat acquainted Rathburn with the facts respecting the Union activities of the employees involved.21 "The documentary evidence discloses that the respondent ieceived the Union's letter on the day it was dated "As related above, Ohley thereafter, on August 28, asked Frehgh Hlio the leader of the Union was, stating that Rathburn desired to l.novv. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The evidence reveals that the respondent did not require a high standard of production quality by its employees It was at all tunes in "desperate need of help" and hired and retained unexperienced and handicapped persons who resisted training and damaged its machinery through their inexperience. Inspector Chenault Marksbury.e complained of "everybody in the place . . . at one time or another" and until about March 1943, when he was ordered to approve only "grade A" products, anything that was "serviceable" was accepted by the Army.t9 The respondent produced some isolated production iecords, but declined to prpduce such records for the plant as a whole, claiming that it was prevented from doing so by directives of the Army and the Federal Bureau of Investiga- tion. Furthermore, such employee production records as were produced for purposes of comparison between those employees alleged to have done unsatis- factory work and those doing compainble work during like periods, were wholly inadequate therefor. In these circumnstaices, the records in evidence, although of some physical bulk, are of little or no value as criteria in determining whether the respondent in discharging the employees in question, was in fact motivated solely by their production performances. 2. The discharges of August 28, 1942. Walter P. F+religh was hired by Obley for whom he had previously worked in a canvas plant, and began woik for the respondent in June 1942 He was one of the few experienced operators obtained by the respondent. On August 20 lie received an increase in pay from 40 to 45 cents per hourSO He joined the Union on August 26. and on August 27, distributed about 40 union membership cards in the plant, obtaining 18 or 20 signed applications. Ohley's prompt and adverse reaction has been related above. On August 28, Ohley discharged Freligh on Rathburn's order, allegedly for unsatisfactory work. Freligh testified that prior to this occasion his work had never been criticized by the respondent. Ohley, Forelady Ehrler, and Inspector Marksbury testified that Freligh's work was poor in quality and qauntity, Oliley stating that he had warned Freligh on several occasions that he would have to improve his work. The undersigned, having found Ohley a wholly unreliable witness, credits Fre- ligh's testimony that his work had not been criticized and finds that Obley did not speak to him in regard to it The respondent also sought to show that Freligh participated in an alleged slow down of work during August 1942. Employee Sadie Loerzel, called as wit- ness by the respondent, testified that Freligh and employee George Tyme4on "thought if we only done so much, when we would get on piece work, we would get a big price"" Loerzel, who did not join the strike and was still employed by the respondent at the time of the hearing, also testified that during August, by prearrangement or a tacit agreement to which she was a party, none of the em- ployees exerted themselves and that she performed less work than that of which 21 Dlarksbury acted as inspector for the Army at the plant from the time it opened until June 1943 29 Despite these conditions, the respondent in its memorandum submitted to the National War Laboi Boaid after the stiike, stated that the iespondent has maintained friendly labor relations, has been able to pioduce as iequired under its contiacts, and has had no difficulties whatsoever " ao This was after Rathburn and Ohley, according to the testimony of the former, had concluded that Freli:;h was an unsatisfactory employee Oi Tymeson, i ecalled in rebuttal by counsel for the Board, denied speaking- to Loci zel in this fashion Freligh, who no longer resided in Saugerties, at the time of the heating, was not recalled. KELLBURN 1IANUFACTUIiINC COMPANY, INC. 555 she was capable. The undersigned concludes and finds that the opposition of the employees to the proposed piece work rates resulted in a general falling off of production and that while Freligh, in common with the other employees, doubt- less did not exert himself to the utmost, his conduct in this regard was not ex- ceptional nor different from that of his fellow employees. In view of the circumstances in which the respondent found itself, the under- signed, although the evidence indicates that Freligh was not one of the top pro- ducers in the plant, does not believe that the respondent dispensed with his services for the season it advanced. The chronology of events, the respondent's demonstrated hostility to the Union, and its failure to substantiate Freligh's al- legedly unsatisfactory workmanship, combine to lead the undersigned to the con- clusion that its real motive in dismissing him was its desire to rid itself of him because of his leading role in establishing the Union and obtaining members for it from among the employees Upon the entire record, he so finds. Ida Smith (Bonson) began work for the respondent in November 1941. About March 1942, there was a "slack period" in the plant. At that time Ehrler told Smith to "just hang around" and that Rathburn had told her that "they were all good operators and he didn't want to let them go." On August 20, 1942, Smith received an increase in pay from 40 to 45 cents per hour. She joined the Union about August 27 and thereafter spoke to her fellow workers concerning it. On August 28 she was discharged, allegedly for unsatisfactory work. Employee Emma McCarthy testified without denial, and the undersigned finds, that about the following day, August 29, Ehrler told her that she could not understand why the respondent had discharged Smith. Smith had had 8 years' experience in operating sewing machines and testified, and the undersigned finds, that the respondent's management did not complain of her work to her .`2 Supervisors of the respondent and Inspector Marksbury testified that Smith was fast but careless, many repairs to her work being necessary. Her experience, the plant's difficulty in securing competent workers, her pay increase within 8 days of her discharge, and the chronology of events combine to persuade the undersigned that the respondent ousted Smith not because of her carelessness, but because of her union membership and activity. He so finds. Hazel Mazdin was hired by Ohley and began work for the respondent about mid-July 1942. She began on a single-needle machine, but was soon transferred to a two-needle machine, a more difficult operation and one in which she had had previous experience. She testified, without denial, and the undersigned finds, that both Rathburn and Ohley praised her work, that she received no criticism respecting it from the respondent's management, and that she instructed other employees in the operation performed by her. About August 21, she protested the proposed piece-work rates to Ohley in the presence of two other employees. He told her to get her mind on her work. Mazdin joined the Union about August 27 and thereafter passed out applications in the plant but secured no signatures thereto. She testified, without contradiction, and the undersigned finds, that about 4 p. in. on August 28, Ohley reminded her, "Don't forget you work tomor- row." At 4: 30 on that day she was discharged, allegedly for unsatisfactory work. Rathburn, Ohley, Ehrler, and Marksbury testified that Mazdin was slow, care- less, yelled at other employees in the plant, and engaged in a slow-down 33 The 33 Ehrler testified, and the undersigned finds, that she asked Sniith to "be more careful." He does not consider the Ehrler request inconsistent with the above finding. 33 Employee Harriet Quick testified, and Mazdin denied, that Mazdin spoke to her and asked her to slow her production The undersigned found Quick an unimpressive witness. In all of the circumstances revealed by the record and because he found 11lazdin a witness worthy of belief, he credits her denial. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undersigned, because of the absence in the evidence of adequate documentary proof under the control of the respondent tending to substantiate such strictures on her workmanship, and because they are completely inconsistent with the com- mendation which she received from Rathburn and Ohley, gives little weight to their testimony. Under all of the circumstances related in the record, the under- signed concludes and finds that the iespondent discharged Dlazdin not on account of her unsatisfactory workmanship but because it resented her union membership and activity and sought to punish her therefor 3i Katherine Bulick was hired by Ohley and began work for the respondent in June 1942. She joined the Union at Fre]igh's solicitation on August 27, 1942, and thereafter obtained three or four membership applications from among the em- ployees At 4 p in. the following day, August 28, Forelady Ehrler told Bulick and the other employees in her vicinity to come in for work the following day, Saturday. At 4. 30 the same day, Bulick was discharged Witnesses for the respondent testified that Bulick was an unsatisfactory em- ployee who held up production by her inefficiency. Again, adequate records in substantiation of their testimony are absent. The undersigned is convinced, and finds, from all of the circumstances revealed by the record, that Bulick's dis- charge was motivated, not by her poor work, but by the respondent's desire to rid itself of her because of her union menibcrship and activities. - Fiank Hill worked for the respondent about a month before-he was discharged on August 28, 1942. He supplied canvas to operators and was a general handy man about the plant He joined the Union about August 27 and thereafter solicited the membership of one employee in the plant. Ohley testified that Hill's work was unsatisfactory and that lie called the em- ployees "vile names." The evidence discloses that about a. week before his dis- charge he called employee Quick "an old bat" because she threw a glass of water on him as he was descending in the plant elevator. The undersigned found Hill an intelligent youth's who appeared to be entirely adequate for his $16 per week job. He testified, and the undersigned finds, that the respondent did not criticize his work The undersigned is convinced and finds that the respondent, in view of its difficulty in securing employees, would not have discharged Hill but for his union membership and activity and that its motive in dismissing him was its anxiety to stamp out the Union in the plant Marie Dore, a cousin of Frehgh, was hired by Ohley and began work late in July 1942. On August 27 she received about 10 blank union applications from Freligh. She executed one, distributed 6 or 8 to other employees and obtained seveial signatures thereto On August 28, in the early afternoon, Ohley appeared where she was working and told her, and the other employees in the vicinity, "Everyone working Saturday, girls " Dore asked him if they would receive overtime for their Saturday work. Ohley heatedly inquired whether she was trying to "start another riot here" and demanded to know "who is telling you all this stuff." At 4:30 that afternoon she was discharged. Witnesses for the respondent testified that Dore was slow and that the quality of her work was poor. Dore, on the other hand, testified that she "was ahead [of her work] most of the time" and that she received extra work from Ehrler on such occasions Incomplete and random records in evidence, difficult of analysis," indicate that Dore's production was approximately equal to that 31 In a small plant, such as the respondent's, it is a ieasonable inference that Mazdin's union membership and activity came to the notice of the respondent' s nianagenient. See N. L B. B v. Abbott Worsted Hills, Tirc, 127 F (2d) 438 (C C. A 1). He was 16 years of age w hen lured by the respondent. 90 Respondent's counsel had offered, during the course of the hearing, to produce a pro- KELLBURN MANUFACTURING COMPANY, INC. 557 of two employees doing smiler work during substantially comparable periods. The undersigned, from the chronology of events, and the entire record in the case, is convinced and finds that Doi e's relationship to Freligh and her own union membership and activity, and not her allegedly poor Workmanship, moti- vated the respondent in ridding itself of her. Robert Lewis worked for the respondent for about 2 weeks before his dis- charge on August 28, 1942 Ile assisted employee Townsend Ackerman, doing heavy work such as diying tents and loading them for shipment He received no complaints regarding his woik from the respondent's supervisory staff, joined the Union about August 27, and thereafter solicited at least one membership therein from among the employees. Ohley and Rathburn testified that Leuu is' work was unsatisfactory, the former stating that Lewis stayed in the wash room for excessive periods and the latter that his work other than loading tents "was not satisfactory." 37 Ackerman testified that Lewis' work was entirely satisfactory and that on August 29, Ohley informed him that Lewis had been seen passing out union application cards and that lie had been discharged for that reason 2' Ohley testified that Ackerman told him that Lewis should not have been discharged because he "had nothing to do with the union it all" and that Ohley thereupon told Ackerman, "I want you to stop that. It has no hearing on the case whatsoever." The under- signed has found 0h ley to be an almost completely unreliable witness Ackerman, on the other hand, lie found to be a sincere and honest witness, worthy of belief. 13e, therefore, finds that the conversation occurred as testified by Ackerman. Lewis testified, and the undersigned finds, that on the same day but before he was notified of his discharge, Oiiley approved his application for supplemental gasoline ration for presentation to the local rationing board of the Office of Price Administration so as to enable him to continue to come to work at the respondent's plant3° The undersigned, upon all of the evidence in the case, concludes and finds that the respondent discharged Lewis, not for his allegedly poor work, but because the respondent was aware of his having distributed one or more union application cards and rid itself of him for that reason. 3 Donald Hauck Hauck 4° was hired by Ohley and began work for the respondent about August.. 1, 1942. He was hired to operate an eyelet machine but on account of its being out of service for repairs, Ilauck performed other tasks in the plant, including putting buckles and buttons on, and stencilling belts, and packing He joined the Union about August 27 or 28, and thereafter distributed 15 or 20 membership application cards in the plant and elsewhere and secured a number of signatures thereto. duction chart or graph, which might afford some standard of comparison No such chart was produced or offered in eiidence. "The record fails to reveal what such other work was r>a Ackerman, in an affidavit, executed September 3, 1942, attributed this statement to Rathburn On the stand, he stated that he had been in error in so doing and that Ohley had in fact made it. i Ohley stated that he did so on the second clay of Lewis' employment and that he remembered the incident because lie was surprised that Lewis should already have needed extra gasoline to come to work, inasmuch its other employees for whom lie had done a like service had "enough gas to keep them going a week or 10 days or 2 weeks, and some a month." The undersigned disbelieves Ohley's version of the events and concludes that Lewis requested Ohley' s assistance in procuring more gasoline at the conclusion of 2 weeks' employment by the respondent, as lie testified. 4° The brother of warren Hauck, who as above related, was discharged on August 26, 1942. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 28, he worked from 6 a m to 2 p in rather than from 8 a. m to 4 p m as ordinarily, with the respondent's approval When he came to work on August 29, his time card was not in the rack and about 8:15 a. in. Ohley, according to Hauck's testimony, discharged him, allegedly for unsatisfactory work He had received no previous complaints regarding his work. Ohley testified that after his brother Warren was discharged on August 26, Hauck told him he had "a good notion to quit," but apologized the following day, or on August 28. He further testified that on August 29, Forelady Ehrler told him Hauck was "not woi king today," and that when he spoke to Hauck regard- ing her statement, the latter answered, "I don't know whether I am going to work or not I have a better job," whereupon Ohley replied, "All right. Go to it. You can have your money" and that Hauck thereupon received his pay in full and left the plant. On cross-examination by counsel for the Board, Ohley stated that he removed the time cards of those employees discharged on August 28 on that afternoon, denied that he removed Hauck's card, until the morning of August 29, and stated that he did so then because "I wanted to speak to my superior officer about it." Hauck explained that his mother was dependent on the earnings of his brother and himself and that because of Warren's being out of work he, Donald, decided to continue working for the respondent. He emphatically stated, and the under- signed finds, that he did not resign his position The undersigned, because of Ohley's unreliability as it witness and because he found Hauck a coryvincing witness whose testimony was consistent with the course of events revealed by the record, further finds that his discharge occum red as he testified He further finds that Ohley removed. Hauck's time card fi om the rack on the afternoon of August 28, and that, but for his being absent from the plant at quitting time on that day, Hauck would then have been discharged by the respondent. When he arrived at the plant on August 29, the respondent lost no time in dismissing him It is plain, and the undersigned finds, that the respondent dismissed Hauck because of his union membership and activity. 4 O'Bryon and Shackett Clara O'Bryon" began work for the respondent in October 1941, and Elizabeth Shackett, in June 1942 Both received two increases in pay, the last on August 20, to 45 cents per hour. They both joined the Union and were the only employees in the plant who'signed the August 29 questionnaire circulated by the respondent in the plant indicating that they were in favor of the Union.4" On September 4 they were 4 minutes late in returning from lunch. An hour later Ohley dis- charged them." Ohley gave them no reason for their discharge. They therefore. and because they wished to inquire regarding- certain bonus and War Bond matters," "inter- viewed Rathburn who, according to their testimony, told them that they had been discharged for spending too much time in the rest room and on account of their union activity, adding that the Union did not worry him, that he might 41 Described in the complaint as Claire O'Bryon 12 They first designated the C I 0 , but recalled Vozdick , Rathburn's secretary, and changed their choice to the A F of L on the sheets she had circulated 43 Employees Mabel and Marie Engesser, both union members, were discharged at the same time They were also late in returning from lunch The complaint does not allege this action by the respondent to have constituted an unfair labor practice . Neither of the- En essers was called as a witness 94 Both subsequently ieceived their bond and bonus money from the respondent. KELLBURN MANUFACTURING COMPANY, INC. 559 move his plant "across the river," and that the respondent would discharge still other employees. Rathburn denied speaking to them regarding the Union or about moving his plant and testified that lie did not know of their union membership. The evi- dence indicates that O'Bryon and Shackett did spend long periods in the rest room and they admitted they had been late in returning to the plant after the lunch hour on this and other occasions. The evidence also indicates, however, that numerous employees indulged in the same practices, did not report for work, and otherwise violated the respondent's rules; that in the entire history of the plant prior to August 28, only four or five employees had been discharged ; and so far as is revealed by the record, that none but union members were thereafter discharged. In view of the "desperate" employment condition obtaining at all times in the plant and the apparently not unsatisfactory work records of O'Bryon and Shackett, both of whom had received increases in pay about two weeks before they were discharged, the undersigned believes that, although the re- spondent may have had adequate reason for discharging them for infraction of its rules, it would not have done so but for their union adherence openly expressed by their written preference for it recorded on August 29. Rathburn's reasons for dismissing them and the further defiant remarks attributed to him by O'Bryon and Shackett, exemplify the respondent's attitude toward the Union and its members demonstrated throughout the period involved in this proceeding. The undersigned, upon the entire record, is persuaded and finds that he spoke to O'Bryon and Shackett substantially as they testified, discredits his denial of knowledge of their union membership, and finds that the respondent discharged them on account thereof. 5. George I. White White was hired by Ohley and began work for the respondent in June 1942. He joined the Union on August 27, thereafter attended union meetings, and unsuccessfully solicited the membership of employee Martha Loeser in the plant. He refused to sign the questionnaire circulated by the respondent on August 29," and refused to indicate his position with respect to the Union on his September 7 production sheet. On September 17 he was ill and did not report for work When he did so on September 18, Ohley discharged him, allegedly for unsatisfactory work as well as infraction of company rules relating to reporting absences by employees. Rathburn . Ohley , Ehrler, and Inspector Marksbury testified that White's work was poor in both quality and quantity . The evidence reveals that Marksbury twice spoke to him about his work and that after the piece work system was installed on August 26, White, as he himself testified , could not keep up with some other employees at his table because "They was rushing all the while." He did not succeed in making his minimum under the system, but was not unusual in that respect since most employees were likewise unable to do so and during the system 's first week of operation , none did. Although White was selected for discharge on August 28, his services , according to Rathburn were not then dispensed with because Ohley had no one with whom to replace him. White was a man of advanced years who had spent some time in railroad work before devoting 24 years to cab -driving in New York City and had no experience in canvas work . It is the opinion of the undersigned that since he had mastered his work well enough to be indispensable for even so short a period as that "He testified without contradiction, and the undersigned finds, that he told Vozdick, Rathburn's secretary , that he would not do so because "it 'sas not right" that the re- spondent should inquire into the union sympathies of its employees. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between August 28 and September 18, he proved himself a satisfactory worker under the conditions then obtaining in the plant. He so finds The evidence further reveals that White was absent from work on several occasions without first notifying the respondent. He testified, and the undersigned finds, that he was unaware of any rule of the respondent requiring him to do so 46 Rathburn testified that early in the plant's history, in the summer or early fall of 1941, in connection with "a very rush job" lie veibally explained to the employees "that anybody who did not wish to work overtime, did not have to, but if they were not going to work overtone they must tell as and make other arrange- ments . . . If they neglected to tell us, if they went home for dinner and did not come back to work, or stayed out without notifying us, they would be dis- missed. They had the privilege of not working overtime, provided they so instructed us." So far as the evidence discloses, this "rule" was never pub- lished in written form. Since it was announced with respect to a particular order or job, was mainly concerned with the employees' overtime work, and its announcement antedated White's employment by 9 or 10 months, it appears that White was not deielict in the performance of his duties because lie was unaware of its existence. The undersigned so finds. It seems plain that, under all of the circumstances revealed by the record, White's involuntary absence from work on account of illness of September 17, would not ordinarily have precipitated his dischaige but that it was seized upon by the respondent merely as a pretext for ridding itself of him becau-e of his known and intransigent union adherence. The undersigned so finds The undersigned finds that the respondent has discriminated in regaid to the hire and tenure of employment of Freligh, Smith, 1llazdni, Bulick, Hill, Dore, Lewis, Hauck, O'Bryon, Shackett, and White, thereby discouraging membership in the Union, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PP.ACTICES UPON COMMERCE The activities of the respondent set forth in Section Ill above , occurring in connection with the operations of the respondent set forth in Section I above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States and tend to lead and have led to labor disputes bur- dening and obstructing commerce and the free flow of commerce V. THE REMEDY Having found that the respondent has engaged in and is engaging in certain unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent has refused to bargain collectively with the Union. It will therefore be recommended that the respondent, upon request, bargain collectively with the Union as the exclusive representative of its employees within the appropriate unit. It has been found that the respondent has discriminated in regard to the hire and tenure of employment of the employees listed in Appendix A, thereby dis- couraging membership in the Union. The undersigned will therefore recom- mend that the respondent offer them immediate and full reinstatement to their 46 Ohley testified that he had warned White to do so The undersigned on account of Ohley's often demonstrated unreliability, does not credit his testimony to that effect. KELLBURN MANUFACTURING COMPANY, INC. 561 former or substantially equivalent positions , without prejudice to their seniority and other lights and privileges He will farther recommend that the respondent make them whole for any loss of pay they may have suffered by reason of the lesporident's discrimination against them by the payment to each of them of a sum of innoney equal to the amount lie would no1nially have earned as wages from the date of such dt"cruunnition to the date of the otter of reinstatement, less his net earnings'' duiin , said pct rod. Donald Ilanck, listed in Appendix A. was serving in the United States Navy at the lone of the hearing It will ho recommended that the respondent, upon application by him within forty (4(1) days of his discharge from such seivice, offer IIaucl: full renrshrteinenl to his termer or substantially equivalent posi- tion. without prejudice to his serioi sly and other rights and privileges. It will be tuitber iecomineuded that the respondent snake lout whole for any loss of pay lie may have suffered by reason of its disci inimation against him by the immediate payment to him of a sum of money equal to the amount lie would normally have cat ned as wages from the date of the respondent's discrimination against him to the date on which he heg:ni his sernce, and for any loss of pay lie may iucnr front a date five (.i) days after his timely application for rein- statement to the date of the respondent's oitei thereof, less his net earnings" during each of seen pet cods It has been found that the respondent has rli,u nnniated in regard to the ]tire and tenure of employment of the employees listed in Apl;endix 1:, thereby disconiaging nicrirbership in (lie Union The nncletsigned will therefore recom- mend that the respondent otter them numedmte and trill reinstatement to their former or substantlally egniv:tlent positions, without pmejuchce to their seniority and other lights and privileges All employees presently working for the ie- spondenf who have been hired since Septeuthei 18, 1913, the date of the com- mencement of the strike, shall if neiessau'y he dtsurissed by the respondent to provide employment for those to be uttered and who shall accept reinstatement. If thereupon. despite the disnussal of all such employees, there is not sufficient euiploynient mailable for the employees presently woikiug tot, the iespoudent, excluding those tiisnnssed, and lot the employees to be offered and who shall accept reinstatement, then all positions of einplovinent shall be distributed by the respondent aniong employees presently working. excluding, those dis- nussed. and the employees to be offered and who sliall accept reinstatement, in accuidance with the iespondent' s usual niethod of ieduciug its force, without discrimination against any eiuployee because of his union affiliation and ac- tivities. following such 51Steni of seniority or other nun-disciininatory procedure as has been heretofore applied by the respondent in the conduct of its business Those employees remaining after such distribution. for when no employment is immediately available, sh:dl be placed on a preferential list with priority determined :unoog them in accordance with such system of seunotity or other non-disciuninatory procedure as has been heretofore applied by the respondent in the conduct of its business , and thereafter, in accordance with such list, shall 41 By "net earnings " is meant earnings less expenses , such as for transportation, romp, and board, nicuried by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Ameiica. Lumber Sawmill lVoikers Union. Local 2590, 8 N L 11 B 440 Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects shall be considered as earnings See Republic Steel Corpoi ation v N L R. B , 311 U. S. 7. 48 See footnote 47, supra. 5 78129-44-vol 55-37 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be offered reinstatement by the respondent to their former or substantially equivalent positions as such employment becomes available and before other persons are hired for such work. The undersigned will further recommend that the respondent make whole the employees whose names are listed in Appendix B for any loss of pay they may have suffered by reason of the respondent's refusal on September 26. 1942, to reinstate them upon application, by the payment to each of them of a sum of money equal to the amount lie would normally have earned as wages from the date of such discrimination to the date of the offer of reinstatement, less his net earnings .9 during said period. Lester Gardiner, listed in Appendix B. was serving with the Armed Forces of the United States at the time of the herring It will be recommended that the respondent, upon notification by him within forty (40) clays of his discharge from such service of the fact of such discharge, offer Gardiner reinstatement or place him upon the preferential list in accordance with the terms and condi- tions set forth in the preceding paragraph with respect to the striking em- ployees found to have been discriminated against. It will be further recom- mended that the respondent make him whole for any loss he may have suffered by reason of its discrimination against hinn by immediate payment to him of a sum of money equal to the aniount he would normally have earned as wages from the date of the respondent's discrimination against him, to the date on which he began his service, and for any loss of pay he may incur from a date five (5) clays after his timely notification of the respondent of the fact of his discharge to the date of the respondent's offer of reinstatement or placement upon the preferential list as provided in the preceding paragraph, less his net earnings G0 during each of such periods. Upon the foregoing findings of fact and upon the entire record in the case, the undersigned snakes the following. CONCLUSIONS OF LAW 1 Hudson Valley District, Intel national Lilies' Garment Workers' Union, A. F. of L., is a labor organization, within the meaning of Section 2 (5) of the Act. 2. All employees of the respondent, excluding non-working supervisors and oflice and management employees, at all times material herein constituted and now constitute a unit appropiiate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Hudson Valley District, International Ladies' Garment Workers' Union, A. F. of L, was on November 19, 1942, and at all times thereafter has been, the exclusive representative of all the employees in such unit for the purpose of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing on March 24, 1943, and it all times thereafter, to bargain col- lectively with Hudson Valley District, International Ladies' Garment Woikers' Union, A. F. of L, as the exclusive representative of the employees within the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of the employees whose names are listed in Appendices A and B, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Sec- tion 8 (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 90 See footnote 47, supra. co See footnote 47, supra. KELLBURN MANUFACTURING COMPANY, INC. 563 and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting coin- merce, within the meaning of Section 2 (6) and (7) of the Act. 8. The respondent has not kept union meetings under surveillance in violation of Section 8 (1) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondent, Kellburn Manufacturing Company, Inc., Saugerties, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Hudson Valley District, International Ladies' Garment Workers' Union, A F. of L., as the exclusive representative of all employees of the respondent, exclusive of non-working supervisors and office and management employees, with respect to rates of pay, wages, hours of employ- ment, and other conditions of employment ; (b) Discriminating in regard to the hire and tenure of employment of any of its employees because of their membership in or activity on behalf of Hudson Valley District, International Ladies' Garment Workers' Union, A. F. of L.; (c) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will ef- fectuate the purposes of the Act: (a) Upon request, bargain collectively with Hudson Valley District, Inter- national Ladies' Garment Workers' Union, A. F. of L, as the exclusive represen- tative of all employees of the respondent, exclusive of non-working supervisors and office and management employees, with respect to rates of pay, wages, hours of employment, and other conditions of employment ; (b) Offer to the employees listed in Appendices A and B immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth in the Section entitled "The remedy" above, and place those whose names are listed in Appendix B for whom employment is not immediately available upon a preferential list and offer them employment as it becomes available, in the manner set forth in said Section ; (c) Make whole the employees listed in Appendices A and B for any loss of pay they may have suffered by reason of the respondent's discrimination against them, in the manner set forth in the Section entitled "The remedy" above; (d) Post immediately in conspicuous places throughout its Saugerties, New York, plant, and maintain for a period of at least sixty (60) consecutive days, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraphs 1 .(a), (b), and (c) hereof; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) hereof; and (3) that the respondent's employees are free to become and remain members of Hudson Valley District, International Ladies' Garment Workers' Union, A. F. of L., and that the respond- ent will not discriminate against any employee because of his membership in or activity on behalf of that organization ; 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Duector for the Second Region in writing within ten (10) clays fi rnn the (late of the receipt of this Intermediate Report what steps the respondent has taken to comply therewith. It is further recommended that the complaint be dismissed insofar as it alleges that the respondent has kept union meetings under surveillance in violation of Section S (1) of the Act. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Repot the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended, effective October 19, 1943-any party or counsel for the Board may within fifteen (15) clays from the date of the entry of the order transferring the case to the Board, pursuant, to Section 32 of Article II of said Rules and Regulations, file with the Board, Ito- chambeau Building, Washington, D C , an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and,/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire per- mission to argue orally before the board, request therefor must be made in writing within ten (10) days from the date of the order transferring the case to the Board. JOSN,F L HEKTOEN, Trial Exantmer. Dated November 27. 1943 APPENDIX A Walter Perce Freligh -Ida Smith (Benson) Hazel Mazdin Katherine Bulick Frank Hill Marie Dore APPENDIX B Grace Bennett Frank Brandt Augustus Brown Donald J. Bowra Robert Brown Hazel Bruno Paul Buntel Herman Daley Peter Daley H. L. Daniels Marge Davis Mary De Cicco Itobeit Lewis Donald Hauck Clara O'Bryon Elizabeth Shackett George S. White Charles W. Diehl Wright Ennis Clara Erceg Berit Evgenis Wm. Farrell Eileen Ferguson Elizabeth Ferretti Lester Gardiner Katherine Garrison Donald Guthed Stella Haines Robert Hallenbeck KELLBURN 'MANUFACTURING COMPANY, INC. Ralph Hendricks Ethel M. Holcomb Clarence Hommel Victor I. Hommel K. N Houghtaling Charles Hudson Joseph Hull Martin Hull Ethel Humphrey Clinton Johnston Rose Hubie Tony Krenim John Lavelle Randolph Legg Emma McCarthy Luther Mickle Rose Mickle Anna Milder Evelyn Murphy Jeannette Murphy Collins Myer Clarence Myers Robert Myer James Myers Milton O'Bryon Thomas O'Connell Virginia Ostyic Dorothy Patterson Bertram Quick Edward Pickett Agnes Robinson Judy Robinson Inez Reynolds Julius R. Schmidt Louise Schmid Frida Short Larry Spatz John P. Staerker Curtis Thies Alice Tompkins George Tymeson Jennie Westergard Robert Westergard Alfred Whitaker James Winters Louis Trolsen 565