Peter Freund Knitting Mills

In the Matter Of PETER FREUND, DOING BUSINESS UNDER THE TRADE NAME AND STYLE OF PETER FREUND KNITTING MILLS, AND PETER FREUND AND ELIZABETH FREUND, CO-PARTNERS DOING BUSINESS UN- DER THE TRADE NAME AND STYLE OF PETER FREUND KNITTING MILLS and TEXTILE WORKERS UNION OF AMERICA, C. I. O. Case No. 2-C-5397.Decided March 29, 1945 Mr. David H. Werther, for the Board. Rothstein d Korzenik, by Mr. Harold Korzenik, of New York City, and Levenson '& Levenson, by Mr. A. D. Levenson, of Union City, N. J., for the respondent. Isserman, Isserman dl Kapelsohn, by Mr. Morris Issergnam, of New- ark, N. J., and Mr. Jack Mermell, of Union City, N. J., for the Union. Mr. Louis R. Mercado, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon an amended charge duly filed on June 3, 1944, by Textile Workers Union of America, C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaint dated June 5, 1944, against Peter Freund and Elizabeth Freund, co-partners doing business under the trade name and style of Peter Freund Knitting Mills, herein jointly called the respondent,? alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of 'During the course of the hearing, the complaint was orally amended by the Board, with the consent of the respondent, to allege that the business of the respondent was conducted from on or about the year 1918 to January 1, 1944, by the respondent, Peter Freund, as sole proprietor, and that on the latter date, the respondents , Peter Freund and Elizabeth Freund, co-partners doing business under the trade name and style of Peter Freund Knitting Mills, succeeded to and have since carried on the said business. The captions to the pleadings , as well as the pleadings themselves , were similarly amended to conform to these allegations . The individual respondent, Peter Freund , and the re- spondents named as the co-partnership will hereinafter be referred to jointly as the respondent, and the neuter pronoun will be used in referring to the respondent , except where the context otherwise requires. 61 N. L. R. B., No. 13. 118 PETER FREUND KNITTING MILLS 119 Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint together with Notice of Hearing thereon, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged, in substance, that the respondent: (1) on or about December 9, 1943, laid off and thereafter, on or about January 11, 1944, discharged Pioter Pilot,2 and thereafter refused to reinstate him because he joined or assisted the Union or engaged in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, thereby discriminating in regard to the hire and tenure of employment of said Pioter Pilot and discouraging membership in the Union ; and (2) by the foregoing conduct and, since on or about July 15, 1943, by vilifying, disparaging and expressing disapproval of the Union, by interrogating employees concerning their union affiliations, by urging, persuading, and warning employees to refrain from assisting, becom- ing or remaining members of the Union, by threatening employees with discharge or other reprisals if they joined or assisted the Union, and by keeping under- observation and surveillance the meeting places, meetings and activities of the Union or the concerted activities of the employees for the purpose of self-organization, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent's answer, filed on June 15, 1944, admits the allega- tions in the complaint with reference to the nature and extent of its business, as well as its operation in interstate commerce, denies the commission of any unfair labor practices, admits that Pioter Pilot was laid off on or about December 9, 1943, and was not employed by the respondent at any time thereafter, but affirmatively avers that the said Pioter Pilot, "by his own acts and conduct, severed his employ- ment" and has since been gainfully employed "otherwise than with respondents." Pursuant to due notice, a hearing was held at Jersey City, New Jersey, from June 19 to and including June 24, 1944, before Irving Rogosin, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by coun- sel; the Union, by counsel and a union representative. All parties participated in the, hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. On June 13, 1944, the respondent filed a motion for a bill of particulars. The motion was granted in part and a bill of particulars and supplemental bill of particulars were furnished to the respondent prior to the hearing. At the com- 2 Also referred to in the record as Peter Pilot. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mencement of the hearing, the Board further supplemented its bill of particulars by orally furnishing the respondent, on the record, with sundry dates on or about which the alleged unfair labor practices were committed. At the, close of the hearing, the Trial Examiner granted motions by counsel for the Board and the respondent to con- form the pleadings to the evidence adduced with respect to formal matters. During. the course of the hearing, rulings were made by the Trial Examiner on various motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. On September 26, 1944, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, in which he found that the respondent had engaged in and was engaging in- unfair labor practices affecting commerce within the meaning of Section 8 (1) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. He further found that the respondent had not discriminated against Pioter Pilot and had not engaged in certain other unfair labor practices, and recommended that the complaint be dismissed in these respects. Thereafter, counsel for the Board, the Union, and the respondent filed exceptions to the Intermediate Report and supporting briefs. Oral argument, in which the respondent and the Union participated, was had before the Board at Washington, D. C., on February 6, 1945. The Board has considered the exceptions and briefs of the parties and, insofar as the exceptions are inconsistent with the findings of fact, conclusions of law, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Peter Freund, an individual doing business under the trade name and style of Peter Freund Knitting Mills, was engaged from about 1918 to January 1, 1944, in the manufacture, sale, and distribution of sweaters, mufflers, infants' blankets, and other related knitted and woven products. On January 1, 1944, Peter Freund and Elizabeth Freund, co-partners doing business under the trade name and style of Peter Freund Knitting Mills, succeeded to the business formerly con- ducted by the said Peter Freund as a sole proprietorship. There was no change in the business, management, personnel, or labor policies PETER FREUND` KNITTING MILLS 121 as a result of this change in ownership; Peter Freund,3 the active manager of the individual proprietorship, continued as active man- ager of the co-partnership. Thus the change in structure from an individual proprietorship to a partnership resulted in no change in the employer-employee relationship. Under these circumstances, we find that, for the purposes of effectuating the policies of the Act, the re- spondent Peter Freund as an individual proprietor and the respond- ents Peter Freund and Elizabeth Freund as co-partners, are jointly and severally liable for the unfair labor practices of both.4 - At all times material herein, the partnership and Freund, Sr., as an individual, have maintained their principal office and place of busi- ness in North Bergen, in the State of New Jersey. During the year ending May 3, 1944, the respondent in the conduct of its business pur- chased yarns and other materials valued in excess of $250,000, of which approximately 90 percent was purchased and shipped to said plant from points outside the State of New Jersey. During the same period, the respondent manufactured products valued in excess of $500,000, of which approximately 90 percent was shipped to points outside the State of New Jersey. The respondent concedes that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to mem- bership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The Union initiated an organizational campaign at the respondent's plant in July 1943. As part of the campaign, organizers distributed handbills and solicited employees in front of the plant. Early in October 1943, Mary Balg, forelady of the finishing department and supervisor of the other foreladies, approached Anna Fiorenza, an em- ployee in the finishing department, and, inquired if she was interested in the Union. Fiorenza replied that she was not; whereupon, Balg asked her if she thought the Union would help the employees "any." In December 1943, about a month after Fiorenza had joined the Union, Balg asked her, "Why didn't you come to me before you went into the Union?" Fiorenza denied that she was a member of the Union; whereupon Balg remarked, "Why don't you tell me the truth? I 8 Hereafter in the decision Peter Freund will be referred to as Freund, Sr, as distin- guished from his son, Freund, Jr. 4 Cf. N. L. R. B. v. Adel Clay Products Company, 134 F. (2d) 342 (C. C. A 8 ), enf'g, 44 N. L. R. B. 386. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD always tell you the truth." On another occasion in the early part of February 1944, Balg stated to Fiorenza that "the office only hopes [the] girls know what [they] are doing." She then asked her how they [the employees] "would feel if [they] built up a plant the way Mr. Freund did, and then loses (sic) it." Fiorenza replied that she did not think Freund would lose the plant, and added, "I don't think it would harm any if the Union would come in." Balg remarked that the employees "had no idea what it would do." We find that implicit in Balg's statements was the threat that the employees would lose their jobs if the Union would come in because Freund would then be forced to close the plant. On still another occasion Balg told Fiorenza that "a few of the girls came back with their [Union] cards, saying that they were sorry they signed, and . . . [that Plant Superintendent] Vargish was trying to get them out." We find that this statement re- ferred to the efforts of Balg and Vargish, who was Freund, Sr.'s son- in-law, to induce employees to withdraw from the Union and was in- tended to, and did, indicate the success with which their efforts had met.5 On Friday, January 7, 1944, about a dozen weavers, including Ka- minski, Purzel, and a few girls employed in another department, at- tended a union meeting. During the morning or afternoon of the next regular work day following the meeting, Foreman Haschke came over to Purzel and remarked, "You was at a meeting Friday?" Purzel replied "Yes . . . Why?" Haschke then stated that "the boss" had told him so and that he [the boss] knew the identity of everyone who had been at the meeting.' In the latter part of February 1944 when Kaminski "started on full warps on Pilot's looms," Haschke told him, "You know, Kaminski, . . . boss told me before Union is going to be in his shop he going to close the shop." 7 The respondent contends that it is not responsible for the statements of Balg and Haschke because they were not supervisory employees. Like the Trial Examiner, we find no merit in this contention. The record shows that Balg was the forelady of the Merrow department. Freund, Sr., admitted that she was the "supervisor" of the rest of the foreladies of the plant; that she assigned the work to the employees under her and reported on their fitness and efficiency; that she had 5 The findings with respect to the conversations with Fiorenza, related above, are based on the credible and uncontradicted testimony of Fiorenza , who was also credited by the Trial Examiner. Balg did not testify. We, like the Trial Examiner , find no merit in the respondent 's contention that Fiorenza's credibility has been impeached by the fact that she was discharged for having her time card punched by another employee and for having refused to instruct new employees a The findings with respect to this conversation are based on the credible testimony of Walter Purzel . While Haschke denied having made the statements attributed to him by Purzel , the Trial Examiner who heard and observed the witnesses , did not credit Haschke's denials ; nor do we. 7 This finding is based on the credible and uncontradicted testimony of Kaminski who was also credited by the Trial Examiner. PETER FREUND KNITTING MILLS 123 authority to recommend employees for hire, discharge, and pay in- creases ; and that her recommendations in these respects were acted Upon .8 Freund, Sr., testified that Haschke was foreman of the whole weaving department in which there were approximately 10 weavers ; that he was in charge of production in that department ; that he had authority to recommend discharges ; and that his recommendations were given weight by the respondent . Haschke testified that in the absence of both Freunds, he was in full charge of the weaving depart- ment. Freund, Jr., testified that, as a matter of policy, he avoided talking directly with the employees of the weaving department but would give his instructions and work orders to Haschke , who put them into effect. When lay-offs were necessitated by reason of the comple- tion of contracts or other causes , Freund, Jr., would consult Haschke a few days before the contemplated reduction , decide what steps were to be taken , and leave the decision to be put into effect by Haschke. Haschke testified that it was his duty to see that all the work in the weaving department was properly performed and to adjust any pro- duction problems . He further testified that inspectors would inform him if the work was not properly performed , in which event he would take the matter up directly with the weaver concerned and caution him to be more careful. Haschke performed substantially the same duties throughout his 17 years of employment with the respondent. We find that the respondent is liable for the statements and activ- ities of Balg and Haschke because they are supervisory employees and because they were held out by the respondent to the employees, and reasonably regarded by them, as representatives of management. We find further that by the statements and activities of Balg and Haschke, as hereinabove set forth , the respondent interfered with, restrained , and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act. The respondent uses personnel cards in connection with its Social Security records. These cards contain the printed question concern- ing the employee's union membership . Freund, Sr., testified that the, office employees were instructed to keep these cards for each employee and to obtain as much of the called for data as possible . The prac- tice seems to be to call an employee into the office after he has been employed a week or two and at that time to enter as much informa- tion as possible on the card . The Trial Examiner found that since these were stock cards and since only one of the five introduced into evidence contained an answer to the question of "Union Affiliation," 8 Freund , Sr , testified on direct examination that he gave "great weight" to Balg's rec- ommendations On cross-examination , under leading and suggestive questions by the re- spondent's counsel , Freund, Sr., attempted to minimize Balg's authority and duties , stating that he gave no greater weight to Balg 's recommendations than to the suggestions of strangers . We, like the Trial Examiner , reject the respondent 's contention that it gave no greater weight to Balg's recommendations than to those of any ordinary employee. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent did not violate the Act by interrogating its employees as to their union affiliation. We do not agree. These cards, which the respondent maintained as records in the regular course of its business, contained a question concerning the employee's union affiliation, a mat- ter which should be of no concern to the employer. The most that may be inferred from the fact that on four of the five cards in evi- dence the information relating to union affiliation is blank, is that the answer to this question was not compulsory. However, it does not appear that the employees were told that they did not have to answer this question. And one of the cards in evidence does contain the answer " `no" to this question. We believe that a refusal to supply.an answer to this question might create the inference that the employee is a member of a union and that the inquiry itself deters concerted activity by employees whether or not an answer to this question is supplied. We find that by the use of the question, on the personnel cards, concerning the employee's union affiliation, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.9 B. Alleged interference, restraint, and coercion Shortly after the Union"initiated its organizational campaign at the respondent's plant, Freund, Sr., observed the distribution of leaflets in front of the plant and on two occasions telephoned to the local police to determine whether a permit had been issued for that purpose. On the latter occasion, he was informed that the permit had been granted. Although it may be inferred from what transpired that Freund, Sr., disapproved of the distribution of the literature, he did nothing to interfere with or hinder its distribution. We find, as did the Trial Examiner, that the respondent did not interfere with, re- strain, or coerce his employees with respect to the distribution of union literature at his plant. Otto Gedon, an employee in the weaving department, testified that on the Monday following the union meeting of January 7, 1944, Fore- man Haschke told him that he knew Gedon had been at the meeting. Gedon acknowledged that he had and then remarked, "I pay 6 See Matter of D. W. Onan t Sons, 50 N. L R. B. 195, enf'd 139 F. (2d) 728 ( C C A. 8), where the Board found violative of the Act the use of a question , in an application blank, concerning membership in any organization , lodge, or society despite the company's con- tention that the Navy Department had suggested the procuring of such information from applicants and despite the fact that it had eliminated the question after a Board Field Examiner had commented on its impropriety ; Matter of Spalek Engineering Co., 45 N. L. R. B. 1272 , 1275, where the Board found a violation of Section 8 (1) in the use of such a question on an application form despite the company 's contention that the appli- cations were in standard form, purchasable from any stationer, and had been used by the company long before the commencement of union activities . See, also, Texarkana Bus Co. v. N L. R. B , 119 F. ( 2d) 480 ( C. C. A. 8 ) ( inquiry appears on application blank) ; Dannen Gratin cE Milling Co. v. N. L. R. B., 130 F. (2d) 321, 323 (C. C A. 8 ) ( inquiry appears on application blank ) ; and P. H. Glatfelter Co. v. N. L. R. B., 141 F. (2d) 631 ( C. C. A. 3 ), and cases therein cited ( inquiry was made orally). PETER FREUND KNITTING MILLS 125 my ... dues, and I go in the saloon and drink a couple of beers, and I go home." Haschke then stated, according to Gedon, "Mr. Freund doesn't like that." Haschke, who fixed the day of this con- versation as Saturday, testified that as he passed Gedon at his loom, he smelled an odor of alcohol and observed that Gedon was "kind of red in the face." Haschke had known Gedon for 30 years. Address- ing him familiarly as "Otsch," he inquired, "Where was you?" Gedon replied, "I was to a meeting and had a couple of beers and then went home." Haschke continued, "Otsch . . . Don't come in drunk. The boss does not like that." In his testimony Haschke explained that it was Gedon's drinking that he referred to in stating that Freund, Sr., objected, and not to Gedon's attendance at the union meeting. Haschke denied that Freund, Sr., had ever told him that he objected to the employees attending union meetings. Although there is no indication that Gedon was actually under the influence of liquor on this occasion, Gedon himself admitted that his drinking had been the subject of some comment on previous occasions, even though it had been referred to by both Haschke and- Gedon in a somewhat- jocular vein. Like the Trial Examiner, we find that the statement attributed to Haschke was ambiguous, that it was equally susceptible of the meaning which Haschke claimed he intended, and that it was insufficient to warrant a finding that it constitutes interference, restraint, or coercion, within the meaning of the Act. Mermell, the union organizer, testified to an incident allegedly involving Superintendent Vargish, the son-in-law of Freund, Sr. Mermell testified that while he was distributing leaflets in front of the plant, a man came up to him and made disparaging remarks in the presence of employees entering the plant. Mermell did not know the identity of the man and his only information that the person was Vargish came from an unidentified person entering the building. -We conclude, as did the Trial Examiner, that, since Vargish was insuffi- ciently identified as the person alleged to have made the statements, no finding can be based on the incident. Mermell further testified that on an occasion when he was distrib- uting leaflets in front of the plant, Freund, Sr.'s minor son, of high school age, took a leaflet and entered the plant. Sometime later the boy emerged from the plant, and made disparaging and vulgar re- marks to Mermell. We find, like the Trial Examiner, that, under the circumstances disclosed, the evidence does not warrant a finding of unlawful intereference by the respondent. C. The alleged discriminatory treatment of Pioter Pilot Pilot had been employed by the respondent as a weaver since 1929. He could operate both Jacquard and shaft looms and his workman- 639673-45-vol. 61-10 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ship and efficiency were not questioned. He joined the Union in July 1943, and was elected shop steward in September or October. He dis- cussed the Union with other employees after he joined, attended the union meetings regularly, and frequently "spoke from the floor." His activities on behalf of the Union were otherwise unexceptional. Pilot testified that "a cople of months . . . or a couple of weeks" after he joined the Union, he had a conversation with Freund, Sr., in the washroom of the plant. According to Pilot, Freund, Sr., told him that he was surprised at what Pilot had been saying about him, that he had intended to send for Pilot, and asked him to come to his office. Upon his arrival at the office, according to Pilot, Freund, Sr., asked him if he had joined the Union. Pilot answered in the affirmative and asked if there, was "Anything wrong?" Pilot further testified that Freund, Sr., made no response to his question but remarked that a mechanic had been "making trouble," that he had told the mechanic to stop talking about the Union, that the mechanic continued to talk about the Union, and that he would have to do something with the mechanic. On cross-examination, Pilot acknowledged that when he first arrived at Freund, Sr.'s office, they had an extended conversation relating solely to Pilot's health, in which they discussed X-ray plates which Pilot had brought to the office 10 and a contemplated operation on his sinus which would require a 2 to 3 weeks' absence from the plant. Pilot explained that he forgot about the first part of the conversation on direct examination and that the discussion concerning union mat- ters occurred after their conversation relating to his health. Freund, Sr., denied having had any conversation with Pilot in the washroom. He also denied that part of the conversation in his office relating to union matters but admitted the remainder of the conversation relating to Pilot's health. Freund, Sr., testified that Pilot had spoken to him as he passed Pilot's loom and asked him if he could discuss his sinus condition with him. The Trial Examiner, who had the opportunity to hear and observe the witnesses, credited Freund, Sr., over Pilot, and we do likewise. Pilot also' testified that sometime early in October he observed Freund, Sr., looking out of the plant window while he and Union Or- ganizer Mermell were talking on the sidewalk in front of the plant; that Pilot then drove off with Mermell in the latter's car to visit the home of employee Bruno at Cliffside for the purpose of discussing some union matters with her; that they drove by a circuitous route in order to give Bruno time to get home, consuming 45 minutes in what was normally a 10-minute drive; that Mermell went into Bruno's house "Pilot admitted on cross-examination that he intended to discuss the x-rays and an operation on his sinus with Freund, Sr, and that before going to the office he went to his looms, where he had kept the x-rays, and took them with him to Freund, Sr 's, office. PETER FREUND KNITTING MILLS 127 while Pilot preferred to wait outside "unless invited in"; that after waiting about an hour, he observed a car drive by on two occasions; and that he recognized the driver and the sole occupant of the car as Freund, Sr., with whom he exchanged glances. It appears from Pilot's testimony that the alleged incident occurred at dusk, although the street lights had not been turned on at the time. Freund, Sr., cate- gorically denied that he observed Mermell and Pilot in front of the plant or that he was even in the vicinity of Bruno's home. The Trial Examiner credited Freund, Sr.'s denials. It appears improbable that Freund, Sr., could have left his office, secured his car, and followed Mermell's car for 45 minutes when he could not have known of Mer- mell's destination in advance. Also, Pilot's identification at dusk of the driver of the car as being Freund, Sr., is highly questionable. Like the Trial Examiner, we do not credit Pilot's testimony set forth above, and accept Freund, Sr.'s denials. Pilot testified that-the morning after the Cliffside incident, he was laid off due to the lack of quills but was told to report for work the next day, at which time he was assigned to the shaft looms of Mar- zotta, a weaver who was ill. Pilot asked Haschke for warps for his regular Jacquard looms, but Haschke replied, "I don't know yet." According to Pilot, Kaminski was the only other weaver on shaft looms, and while Pilot was working the shaft looms, the other weavers secured "new" work and got warp for their Jacquard looms. Pilot testified that he worked on the shaft looms 8 days; however, the re- spondent's records show that he worked on the shaft looms 14 days during the period from November 17 to December 9. Upon Marzotta's return on December 9, Pilot was laid off. Pilot complained to Haschke that other weavers were getting warp and orders for their Jacquard looms and asked why he could not get warp. Haschke referred Pilot to Freund, Jr., who assured Pilot that he had no work for him then but would recall him when warp and orders were available. Pilot left the plant without taking his tools and personal effects, and there- after did not return to work. Pilot admitted that he had been laid off on previous occasions, when yarn and orders were unavailable, without regard to his seniority, but contended that it was "never for an extended period." The respondent adduced evidence to the effect that on November 19, 1943, it had exhausted its supply of yarn and was without orders for the Jacquard looms customarily operated by Pilot; that it there- upon transferred Pilot to shaft looms regularly assigned to Marzotta, another weaver who was absent due to illness, in what respondent's officials contended was a routine transfer; that upon Marzotta's return on December 9, the respondent was still without yarn or orders for Pilot's regular looms; and that it thereupon laid Pilot off, as it had 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD done on previous occasions under similar circumstances. Freund, Sr., testified that the respondent had absolutely no seniority policy with respect to temporary lay-offs of weavers when yarn or orders for a weaver's looms were exhausted. Pilot testified that, on the first date after December 9, when he returned for his pay, he asked Freund, Sr., "How I am standing? [sic] It looks to me like I kick off already or I going be kicked off." When Freund, Sr., asked him what he was talking about, Pilot continued, "I want find out and ask you how I am standing. All weavers, all them in the shop, they get jobs; they got warps; they got fillings; they got order. My warp lay on floor, supposed to be put on my machine; nobody put on my machine. They promised to me, Goschinski ['s looms], to run Jacquards; nobody give to me." According to Pilot, Freund, Sr., told him that the respondent had no work, and made no reply to Pilot's complaint that most weavers with less seniority than he were working. Pilot then asked Freund, Sr:, how he was "stand- ing" and if he were fired; Freund, Sr., told him that he was not fired and asked Pilot to suggest what should be done with him. According to Pilot, Freund, Sr., then remarked, "You be surprised how many people come to me and tell me about you, what you are talking about union." Pilot testified that Freund, Sr., then told him that as soon as orders and warp became available, he would be recalled. Both Freunds testified that they intended to'recall Pilot when yarn and orders became available. Freund, Sr., admitted having a con- versation with Pilot upon his return for his pay check, but denied the substance of the conversation testified to by Pilot. Freund, Sr., testi- fied that Pilot had asked what the outlook was for him and that Freund, Sr., had told him that he would reemploy him when yarn and orders became available. The Trial Examiner credited Freund, Sr.'s version as being more plausible, and so do we. Five days after his lay-off on December 9, Pilot took employment with another weaving firm, and received two pay checks from this firm during December. At the time of the hearing he was still em- ployed there.. Freund, Sr., testified that in the latter part of December several employees had advised him that Pilot had taken employment else- where. To ascertain the truth of this report, Freund, Sr., directed his son on January 7 to send a post card to Pilot, asking him to call at the plant office; this, Freund, Jr,, did. When no response was received from Pilot, Freund, Sr., called at Pilot's home on January 10 to ascer- tain if he was employed elsewhere. A note on the door of Pilot's home directed callers to an adjacent store, where Freund, Sr., was advised that Pilot was employed. Freund, Sr., thereupon returned to the plant and directed his son to return Pilot's belongings and to advise PETER FREUND KNITTING MILLS 129 him by letter that his services with the respondent were terminated. Freund, Jr., did as he was directed. Pilot testified that shortly thereafter he returned to the plant and told Freund, Jr., that he was there in response to the post card; that Freund, Jr., thereupon said that he was going to fire him, to which Pilot replied, "Looks to me like revenge, only because I am belonging to a union"; that Pilot threatened to take the case to the "Labor Board"; and that he then left the plant and did not return. Freund, Jr., admitted that a conversation took place when Pilot returned to the plant upon receipt of the letter of discharge. He testified that Pilot had asked about the meaning of the letter of January 10; that he told Pilot it was self-explanatory; and that he made no response to Pilot's threat to take the case to the Labor Board. He denied the other statements to which Pilot testified. The Trial Examiner credited Freund, Jr., and so, do we. The Trial Examiner found that there was no substantial evidence supporting the allegation that the respondent discriminated against Pilot in regard to the hire, tenure, or other terms or conditions of his employment. We agree. The respondent did not have a uniform system of laying off weavers on the basis of seniority. The record shows that Pilot's lay-off was not unusual. He had been laid off on previous occasions due to lack of orders or yarn and had always been recalled. Moreover, the respondent did not increase its staff of 10 weavers during the entire period subsequent to Pilot's lay-off, although the respondent increased its work week from 40 hours to 48 hours pursuant to the request of the War Manpower Commission., Further- more, it appears that Pilot's looms were not operated until late in January. Like the Trial Examiner, we find that the respondent did not dis- criminate against Pilot in the matter of his lay-off. We find further that by taking employment elsewhere 5 days after his lay-off, contrary to the past practice not to take employment elsewhere during a tem- porary lay-off, and by failing to notify the respondent of that fact despite his knowledge that the respondent would thereby be incon- venienced in its future production schedules, Pilot voluntarily severed his employment relation with the respondent. Upon the entire record, we find that the respondent did not discriminate against Pilot with respect to the hire, tenure, or other terms or conditions of his employment. IF. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III A, above, occurring in connection with the operations of the respondent de- 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scribed in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY 0 Having found that the respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent's use of the question, on its personnel cards, concerning the employee's union affiliation is viola- tive of the Act. We shall, accordingly, order the respondent to delete this question from the personnel cards. Upon the basis of the foregoing findings of fact and the entire. record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, is a labor organization within the mean- ing of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2, (6) and (7) of the Act. 4. The respondent has not interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by keeping under observation and surveillance the meeting places, meetings and activities of its employees. 5. The respondent has not discriminated against Pioter Pilot, in regard to his hire, tenure or terms or conditions of employment, thereby discouraging membership in the Union. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent Peter Freund, doing business under the trade name and style of Peter Freund Knitting Mills, and the respondents Peter Freund and Eliza- beth Freund, copartners, doing business under the trade name and PETER FREUND KNITTING MILLS 131 style of Peter Freund Knitting Mills, and their agents , successors, and assigns, shall: 1. Cease and desist from in any manner interfering with, restrain- mg, or coercing their employees in the exercise of the right to self- organization , to form labor organizations , to join or assist Textile Workers Union of America , affiliated with the Congress of Industrial Organizations, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in con- certed activities, 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 policies of the Act : (a) Delete from the personnel cards the question concerning the employee's union affiliation; (b) Post at its plant at North Bergen, New Jersey, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the Second Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon the receipt thereof, and main- tained by it for sixty (60) consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered , defaced, or covered by any other material; and (c) 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. IT IS FURTHER ORDERED that the complaint , insofar as it alleges that the respondent kept under observation and surveillance the meeting places, meetings and activities of its employees in violation of Section 8 (1) of the Act, and discriminated against Pioter Pilot in violation of Section 8 (3), be, .and it hereby is, dismissed. APPENDIX A NOTICE TO' ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: We will not in any manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form labor organizations , to join or assist Textile Workers Union of Amer- ica, affiliated with the Congress of Industrial Organizations, or any other labor organization , to bargain collectively through representa- 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection. All our employees are free to become or remain members of this union, or any other labor organization. We will delete from our personnel cards the question concerning the employee's union affiliation. , PETER FREUND KNITTING MILLS Employer Dated ---------------- By ----------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must-not be altered, defaced, or covered by any other material.