Vinita Garment Manufacturing Co.

In the Matter of SAM BRAUER, ETTA BRAUER, MAX GRESSMAN AND ELSIE GRESSMAN, CO-PARTNERS DOING BUSINESS AS VINITA GARMENT MANUFACTURING COMPANY and AMALGAMATED CLOTHING WORKERS of AMERICA, CIO Case No. 16-C-1250.-Decided April 29, 1946 DECISION AND ORDER On February 25, 1946, the Trial Examiner issued his Intermediate Report in the above entitled proceeding, finding that the respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in a copy of the Intermediate Report attached hereto. Thereafter, the respondents filed exceptions to the Intermediate Report and a supporting brief; counsel for the Board also filed a brief. A request for oral argument before the Board at Washington, D. C., was made by the respondents, but was later with- drawn, and, accordingly, no oral argument was held. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER 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 respondents, Sam Brauer, Etta Brauer, Max Gressman and Elsie Gressman, co-partners doing business as Vinita Garment Manufacturing Company, Vinita, Oklahoma, and their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Amalgamated Clothing Workers of America, CIO, or any other labor organization of their employees, by discharging, or refusing to reinstate any of their employees, or by 67 N. L. B. B., No. 111. 915 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discriminating in any other manner in regard to the hire or tenure of their employment, or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Amalgamated Clothing Workers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or any 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) Offer to Freda Cheek immediate and full reinstatement to her former or a substantially equivalent position without prejudice to her seniority or other rights and privileges; (b) Make whole Freda Cheek and Bettye Seigel for any loss of pay they may have suffered by reason of the respondents' discriminatioh against them, in the manner set forth in that Section of the Inter- mediate Report entitled "The remedy"; (c) Post at their plant at Vinita, Oklahoma, copies of the notice attached to the Intermediate Report marked "Appendix A." 1 Copies of said notice to be furnished by the Regional Director of the Six- teenth Region, shall, after being only duly signed by the respondents' representative, be posted by the respondents immediately upon receipt thereof, and maintained by them for sixty (60) consecutive days there- after in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the respondents to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Sixteenth Region in writ- ing, within ten (10) days from the receipt of this Order, what steps the respondents have taken to comply herewith. INTERMEDIATE REPORT Mr. Glenn L. Moller, Esq ., for the Board. Mr. Myer M. Rich, Esq., of Kansas City, Mo., for the Respondent. Mrs. Helen Hain, of Joplin, Mo., and Mr. Sam Kolkey, of Kansas City, Mo., for the Union. STATEMENT OF THE CASE Upon a second amended charge duly filed November 19, 1915, by Amalgamated Clothing Workers of America, CIO, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Six- i Said notice, however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words "The Recommendations of a Trial Examiner" and substitut- ing in lieu thereof the words "A Decision and Order." VINITA GARMENT MANUFACTURING COMPANY 917 teenth Region (Forth Worth, Texas), issued its complaint dated November 28, 1945, against Sam Brauer, Etta Brauer, Max Gressman and Elsie Gressman, co-partners doing business as Vinita Garment Manufacturing Company,' Vinita, Oklahoma, herein called the respondents, alleging that the respondents had engaged in, and were engaging in unfair labor practices within the meaning of 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 accompanied by notice of hearing were duly served upon the respondents and the Union. With respect to the unfair labor practices the complaint alleged in sub- stance : (a) that on July 19, 1945, the respondents discharged Bettye Seigel, and on July 23, 1945, discharged Freda C Cheek, and have since refused to re- instate them because of their membership in and activities on behalf of the Union ; (b) that from and after July 16, 1945, the respondents have vilified, disparaged and expressed disapproval of the Union ; interrogated their employees concerning their union affiliation ; urged, persuaded, threatened and warned their employees to refrain from assisting, becoming members of or remaining members of, the Union, and threatened to close the Vinita plant if the employees attempted to organize; (c) that by the foregoing conduct the respondents have engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. At the opening of the hearing the respondents filed an answer in which they (1) denied that they were engaged in commerce within the meaning of the Act and subject to the jurisdiction of the Board; (2) denied that they discharged Bettye Seigel but averred that she voluntarily quit her employment ; admitted that they discharged Freda C. Cheek but averred that the said discharge was for cause and not because Freda C. Cheek had engaged in union activity. Pursuant to notice, a hearing was held in Vinita, Oklahoma, on December 11, 12 and 13, 1945, before Louis Plost, the undersigned Trial Examiner, duly desig- riated by the Chief Trial Examiner All the parties were represented and par- ticipated in the hearing and were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, and to present evidence bearing upon the issues. At the close of the Board's evidence and again at the close of the hearing the respondents' counsel moved to dismiss the complaint on the grounds (1) that the Board had no jurisdiction; (2) that the complaint was not sustained by the evidence. The undersigned reserved ruling. Likewise at the close of the hearing the respondents' counsel moved to strike the testimony relating to alleged statements in violation of Section 8 (1) of the Act made by employees Mrs. Rucker, Ruby Frits and Katherine Hemphill on the ground that they were not supervisory officials of the respondent. Ruling was reserved. Elsewhere in this report the status of Mrs. Rucker, Ruby Frits and Katherine Hemphill is determined by the undersigned. The motion is denied. At the close of the hearing the Board's counsel moved to conform the complaint to the proof as to formal matters such as names and dates. The respondents' counsel made a similar motion as to the answer. Both motions were granted without objection by the undersigned. I The complaint was issued against Sam Brauer, Etta Brauer, Max Gressman and Elsie Gressman, co-partners doing business as Brauer-Gressman Company and Vinita Garment Manufacturing Company . At the reopened tiearing hereinafter mentioned , counsel for the Board moved to amend the complaint by deleting the name "Brauer -Gressman" therefrom. The motion was granted without objection and the reporter was instructed to change the title of the case and the captions of all formal documents to conform to the motion. 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All the parties were afforded an opportunity to argue orally on the record and to file briefs with the undersigned. No arguments were presented. Briefs have been received from the respondents' counsel and from the attorney for the Board. Under date of January 23, 1946, the Chief Trial Examiner issued an order reopening the hearing for the purpose of receiving supplementary testimony to reveal the basis upon which the Board contended that a cease and desist order should issue against the respondents doing business as Brauer-Gressman Com- pany in Kansas City, Missouri, for activities giving rise to alleged unfair labor practices wholly alleged to have occurred in a plant operated by the respondents under the name of Vinita Garment Manufacturing Company in Vinita, Okla- homa, and further to receive the testimony of Max Gressman, one of the co- partners whose affidavit was filed by the respondents in lieu of testimony after the close of the hearing, said Max Gressman not being available during the hearing. During the course of the first hearing Amel Ketchum was asked by the respondents' counsel if he had received complaints regarding Cheek's work from Hemphill. The undersigned sustained an objection to the question and did not permit Ketchum to answer. The Chief Trial Examiner's Order directed the Trial Examiner to take the testimony of Ketchum as to complaints made to him by Hemphill regarding the character of Cheek's work and to take such further material and competent testimony as the parties might offer. The undersigned set the date of the reopened hearing for February 12, 1946, in Vinita, Oklahoma. Due notice was given all parties. Accordingly on Febru- ary 12, 1946, the hearing was reopened before the undersigned in Vinita, Okla- homa. All the parties were represented and participated and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to pre- sent evidence bearing upon the issues. Counsel for the Board moved to amend the complaint by striking the name Brauer-Gressman therefrom so as to allege violations of the Act by Sam Brauer, Etta Brauer, Max Gressman, Elsie Gressman, co-partners doing business as Vinita Garment Manufacturing Company only. The motion was granted without ob- jection. Counsel for the respondent renewed his motion to dismiss the complaint on the ground that the Board lacked jurisdiction. The undersigned reserved ruling. The motion is denied. All the parties were afforded an opportunity to argue orally on the record and to file supplementary briefs with the undersigned. All the parties waived argument and the filing of supplementary briefs. Upon the record thus made and from his observation of the witnesses, the un- dersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondents, Sam Brauer, Etta Brauer, Max Gressman and Elsie Gressman are co-partners, doing business as Brauer-Gressman Company in Kansas City, Missouri, where their principal office is located and as Vinita Garment Manu- facturing Company in Vinita, Oklahoma? All the materials used by the re- spondents in its Vinita plant, the only one here involved, are shipped to Vinita from the respondents' Kansas City plant and all the finished products manu- factured in the respondents' Vinita plant are shipped to the respondents' Kansas I Sol Segal, assistant general manager of Hoth respondents ' manufacturing operations, testified that subject to the superior authority of Brauer and Gressman , the owners, he exercised complete authority over the Vinita plant. Finley managed the Vinita plant under the control and authority of Sol Segal. VINITA GARMENT MANUFACTURING COMPANY 919 City plant. The respondents began their Vinita operations in May 1945. The first shipment of finished material was made from the Vinita plant approxi- mately June 29, 1945. During its operation at Vinita, the respendents shipped to Vinita cloth yard goods having a dollar value of $25,000. The respondents' annual sales at their Kansas City plant are in excess of $1,000,000. In excess of 50 percent of all the respondents' products is sold and shipped to points out- side the State of Missouri. The respondents are engaged in commerce within the meaning of the Act? II..T IE ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, CIO, is a labor organization admitting to membership employees of the respondents. III. THE UNFAIR LABOR PRACTICES A. The supervisory status of Frits, Rucker, and Hemphill The respondents began the installation of their plant for the manufacture of men's and boys' trousers, at Vinita, Oklahoma, in April 1945. The first manu- facturing operations began on May 2, and the first shipment of finished merchandise was made on June 29. Vinita is not an industrial community, in fact the respond- ent's factory is the only one in the town. The respondents were compelled to em- ploy workers entirely unskilled in their operations. They began by training a small group of workers in the simplest operations, then advancing them to more complex work, and filling their places with a new untrained group. In this man- ner a force sufficiently trained to manufacture trousers was obtained. From among their Vinita employees the respondents selected certain apt individuals to act as instructors and overseers. Lloyd Finley, the manager of the respondents' Vinita plant,' testified in regard to the duties of these selected individuals; "I line out the work to the people I am training to follow through." Finley testi- fied that he delegated to these individuals, to whom he referred as "instructors," the authority to oversee work ; cheek on quality ; to make suggestions, and to re- port on the work of operators. Ruby Frits was employed by the respondents from July until October 17, 1945. She was a supervisor in the finishing department. Regarding the instructions she received from Finley at the time she was made a supervisor Frits testified : Well, he told me that I was to see that the pants were made properly, that I was to teach the operators how to run the machines and how to sew the seams that they were supposed to sew and I was to keep the girls busy all of the time and report to him if they did not or if they slacked up on their work and if I saw any of them laying down on the job, I was to report to him, and if they were too much so, I wasn't even to report it, just tell them that we could not use them any more. 8 The respondents contend that they are not engaged in commerce within the meaning of the Act. The undersigned finds no merit in this contention . N. L. R. B. V. Fainblatt, 306 U. S. 601 . Newport News Shipbuilding a Dry Dock b'o. V. N. L. R. B., aff'd 101 P. (2d) 841-843 (C. C. A. 4), 308 U. S. 41 . See N. L. R. B. v. Van De Kamp's Holland-Dutch Bakers, Inc., 152 F. (2d) 818 (C. C A. 9) No. 10, 949, decided January 7, 1946, where the Court said : "It Is the intent of Congress, expressed in Section 1 of the Act, that the free flow of commerce must not be interrupted , obstructed, or burdened by industrial strike or unrest Congress intended to eliminate, by protecting workers In their various rights enu- merated in the Act, the causes of substantial obstructions to the free flow of interstate commerce. It matters little where the obstruction to that free flow of commerce occurs " 4 Finley's status is not in dispute. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frits further testified that during the course of her employment as a super- visor she discharged and employed workers without previously clearing with Finley. The above-related testimony of Frits was riot denied and is credited by the undersigned. Both Frits and Finley testified that Mrs. Rucker was an employee of the re- spondents whose duties and status were identical with the duties and status of Frits. The respondents contend that they have no supervisors in their Vinita plant (other than Finley) and that neither Frits nor Rucker had supervisory status The respondents define a supervisor as a person capable of performing every operation necessary to the manufacture of their product, one able to instruct others in every operation, having ability to work with others, and possessing such qualities of leadership as to obtain maximum efficiency from employees Finley testified that a supervisor could not ordinarily be developed in less than 4 years. Sol Segal, the assistant general manager of all the respondents' operations, testified : A supervisor in a garment factory is a person who is capable of taking corn- plete charge of a line or section without additional supervision. Q. And what qualifications does a supervisor require? A. That would automatically require years of actual craftsmanship together with personnel experience so as to combine the two in teaching and planning that part of production. The standards set by the respondents would undoubtedly produce an ideal supervisory official. However, under the Board's criterion, employees who exercise such authority as did Frits and Rucker, including the right to dis- charge, are supervisors regardless of the actual degree of skill they possess in the craft in which they may function. The undersigned finds that Frits and Rucker were supervisory employees whose acts and statements were binding on the respondents during all the time material to the issues herein. The record further discloses that Katherine Hemphill was an inspector and had no supervisory authority. B. Interference, restraint, and coercion The Union's organizer arrived in Vinita on July 16 and called on Bettye Seigel who accepted authorization cards from her. Seigel and employee, Freda Cheek began the distribution of these cards among fellow employees on July 17. Seigel's employment with the respondent was terminated July 19. Cheek was discharged July 23. Shirley Mahanes, employed by the respondents as an office clerk during July 1945, testified that sometime between July 16 and July 19, Manager Finley asked her If she had joined the Union. Mahanes replied that she had not. Finley then asked if she had heard of the Union and if she had signed a card. Mahanes further testified that Finley asked her if Seigel and Cheek were "for the union," and that shortly before Cheek was discharged Finley asked Mahanes if she knew that Cheek was "taking up money for the union." Mahanes testified that after Seigel's employment had been terminated Finley asked her if Seigel had circulated union cards on the respondents' time Mahanes also testified that during this same period Mrs. Rucker asked her if she had heard of the Union and asked if Mahanes had signed a union authorization card. Mrs. Rucker also asked if Mahanes did not know that Cheek had "taken up" money for the Union. Mahanes testified the latter question was asked her by Mrs. Rucker before Finley made the same inquiry. VINITA GARMENT MANUFACTURING COMPANY 921 Mrs. Rucker was not called to testify. Finley denied all the statements attrib- uted to him by Mahanes. Finley did not impress the undersigned as a trust- worthy witness. He was evasive, gave few direct answers, and when pressed for direct answers frequently volunteered statements in an evident attempt to counteract his original reply. Mahanes impressed the undersigned as being an honest and forthright witness The undersigned credits Mahanes and finds that Rucker and Finley made the above-related statements attributed to them by Mahanes. Freddy Scott, who was employed by the respondents as a general helper during the summer of 1945, testified that he was given two authorization cards by Seigel, while she was still employed in the respondents' plant. Approximately one week later Scott gave these cards to Finley.' Scott testified that while the cards were still in his possession Mrs. Rucker asked him if he had signed a card, and if certain other employees, some of whom she named and some of whom she pointed out, had signed cards. He further testified that before Cheek's discharge Mrs. Rucker asked him whether Cheek was circulating union cards.' Scott testified that shortly after he turned the two authorization cards over to Finley, he met Finley on the street in the vicinity of the plant and that he then asked Finley if he resented his having accepted the cards. Finley, answered Scott that he "would not hold it against him" and added that the Union might be "all right later" but that now all the employees were "new operators " Scott testified that after Seigel's ter- mination, Finley in a conversation with him, said that he had not thought Seigel was "the kind of a girl to start trouble or bite the hand that fed her." Finley denied making any of the statements attributed to him by Scott. Scott is 17 years old, and at present a college student. He impressed the undersigned as a wholly truthful witness The undersigned credits Scott's testimony and finds that Finley and Rucker made the statements attributed to them by Scott as above related Ruby Frits testified that on July 19 (the same day Seigel's employment ended), employee Tipton, told her that she and her sister had signed union authorization cards, but as they had heard rumors to the effect that all the employees who signed cards would be discharged, they wished that Frits would speak to Finley in their behalf. Frets reported the incident to Finley who told her : "You go back and tell the girls if that will be the last of the Union, they may keep their jobs." Finley also instructed Frits to ask all the operators if they had signed cards. Frits did so, and reported that only the Tipton girls admitted signing cards, upon which, according to Frits' testimony, Finley said, "That's all right, but when we hire operators, that's the first orders, and you teach them and tell them if they want to work here, that they have nothing to do with the Union " Frits testified that she followed these instructions thereafter.' Frits was discharged by the respondents October 17, 1945. The respondents contend that Frits' testimony was colored by animosity toward Finley Sol Segal, respondents' general manager, testified that sometime after her discharge Frits told him "I will get even with Mr Finley." Frits testified regarding Finley, "As a man I haven't got no use for him " Despite Frits admitted ill feeling toward Finley, the undersigned is convinced that she was a trustworthy witness. Moreover, her testimony was not denied. The undersigned credits Frits. 6 Finley testified that he forwarded these cards to the respondents' Kansas City office, and further that he had no knowledge of any union activity among the employees until July 25, the date he received the cards 9 Frits further testified that she first obtained knowledge of union activity among the respondents ' employees through a conversation with Finley who said to her that the plant might close because "They are trying to organize this union up here and we are not going to have a union or any of that here." 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned finds that by the statements of Manager Finley and Super- visor Rucker to Mahanes and Scott, and by the conduct of Ruby Frits in carry- ing out the order of Manager Finley, and by their totality, the respondents have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. 0. The discriminatory discharge of Bettye Seigel Helen Hain, the organizer for the Union, first arrived in Vinita July 16, 1045, and conferred with Bettye Seigel at her home. Hain left union authorization cards with Seigel and later that same evening, accompanied by Seigel's younger sister, called on Mrs Rucker. Hain was driving a red automobile. The fol- lowing day Hain called on Freda Cheek at her home ; left Cheek authorization cards, and requested her to cooperate with Seigel in this distribution. Seigel and Cheek both testified that on the night of July 17 they sought out various of the respondent's employees, in the town's business district, and ob- tained their signatures on union authorization cards. Seigel testified that she was employed as a "serger" and worked directly under the supervision of Mrs. Rucker. On July 17, while Seigel was at her work, Mrs. Rucker asked her if she did not have a little sister, and then added, "I thought that's who it was that came out to my house the other night, with the lady in the red car." Mrs. Rucker then asked if Seigel knew "that union lady." Sometime later in the day Mrs. Rucker asked Seigel if she "was for the Union." Seigel replied "Yes." Seigel further testified that on July 19, at about 8: 30 a. in. while she was at her work, Finley told her. "Since you are going to leave anyway, you just go now." Seigel then went to the office and asked the office clerk for her pay statement. Finley entered the room and upon being told of Seigel's request told her that the checks would be in from the Kansas City office "a week from Friday" and added "If that's all you want to know, just go and get out, we are busy people around here and you are in the way." Seigel's above-related testimony is uncontradicted and is credited. The respondents contend that Seigel voluntarily quit her employment. Seigel testified that shortly after July 4, she informed Finley that she intended to leave within "a couple of weeks" in order to visit her sister in Colorado. At Finley's request she agreed to remain at work until such time as she would ac- tually leave on the trip, in order to enable Finley to replace her. Approximately 2 days before the termination of her employment Finley again asked Seigel the date she expected to leave. Seigel replied that she expected to go during the next week whereupon Finley again asked that she remain at work until the day before her departure. Seigel agreed to do so. The undersigned credits Seigel's testimony. Frits testified that on the last day Siegel worked at the respondents' plant, Mrs. Rucker told her, "Mrs. Frits , Bettye is getting put out." Frits asked the reason, and Mrs. Rucker replied, "Well, Mr. Finley had found out that she was the girl that passed the union cards." Rucker was not called to testify. The undersigned credits Frits' testimony. Seigel testified that she did not desire reinstatement. Concluding findings on the discharge of Bettye Seigel While the record is clear that Seigel Informed the respondents she intended to quit her employment and undoubtedly would have done so shortly after July 19, the record is equally clear that the respondents did not afford Seigel the op- portunity to quit as had been contemplated. Despite the respondents' request VINITA GARMENT MANUFACTURING COMPANY 923 and SSeigel's agreement to continue working until the day before she left for Colorado, the respondents abruptly dismissed her several days prior thereto. Finley testified that he had no knowledge of any union activity among the respondents' employees prior to July 25. The record is conclusive that Mrs. Rucker possessed such knowledge. The credited testimony of Frits shows that Finley also had such knowledge prior to Seigel's discharge. The undersigned, therefore, does not credit Finley's testimony to the effect that he had no knowledge of the Union until Scott gave him the union card on July 25. That the respond- ents were firmly opposed to the Union and were making a determined effort to ascertain which of their employees favored the Union is clear from the findings made above. The union organizer came to Vinita on July 16. On July 17 and 18 Seigel was active in soliciting union memberships. On the morning of July 19 Seigel was discharged. The undersigned is convinced from the entire record, and finds, that the only plausible explanation for Finley's sudden reversal of position in abruptly dismissing Seigel just 2 days after he had requested her to continue working until the following week, was that Finley had learned of Seigel's union activity. Upon the entire record in the case the undersigned finds that the respondents discharged Bettye Seigel on July 19, 1945, because of her membership in and activities on behalf of the Union, and that by such discharge the respondents have discriminated in regard to her hire and tenure of employment and have dis- couraged membership in a labor organization, and thereby interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The discriminatory discharge of Freda Cheek Freda Cheek was employeed by the respondents from June 27, 1945, until July 23,1945, on which date she was admittedly discharged. Cheek met the Union's organizer on July 17, and together with Seigel dis- tributed union authorization cards that evening. On Saturday, July 21, Finley asked her to come to his office and according to Cheek's testimony there said to her, "I heard you are union minded." Cheek replied, "I don't know what about the union, I have never had anything to do with it before." Finley then told her that if the respondents' employees were unionized the respondents would "have to get" all experienced help and that a "certain percent would be put out." On Monday, July 23, Finley came to Cheek at her work and instructed her to bring her scissors to the office where he said to her, "Here is your check. Your interest is not here any longer." Cheek then said to Finley, "If you are referring to that union, I have never said a word here at the plant" Finley replied, "It is not that that I am referring to. Your interest is not here any longer." Cheek then left the plant. The respondents contend that Cheek was discharged for inefficiency and because she interfered with the work of others by excessive talking. Cheek's work consisted of "cleaning" thread from finished trousers, which means clipping the excess threads left by the sewers. She also inspected the seams and buttons. Cheek worked with Katherine Hemphill. Hemphill, who is a local school teacher, was employed by the respondents as a final inspector from June 12, until the beginning of the school year, September 1. Hemphill worked together with Cheek at "cleaning" about one half of her time, and spent the rest of her time at final inspection. It was admitted that it was customary for any other employee having free time to work with Cheek. Hemphill testified that it was her duty to inspect every garment manufactured in the plant ; that Cheek's work was satisfactory and showed progressive improve- 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment. Hemphill further testified that she and Cheek talked together while at work but at no time did Cheek talk so much as to disturb other employees. Finley testified that Cheek left so many threads on the garments she "cleaned" that they required additional cleaning after they were sent to the pressers. He also testified that Cheek spent one third of her time in conversation with other employees. Finley testified that on Saturday, July 21, he called Cheek to the office ; told her that her work was unsatisfactory ; that she spent too much time talking, and that this would be his final warning to her. He denied that lie told Cheek she was "union minded," or that unionization would neces- sitate the respondents employing experienced help. The undersigned credits Cheek's version of the Saturday, July 21, conversation. Finley further testified he had received complaints regarding Cheek's work from Amel Ketchum, the respondents' pressing machine operator and from Hemphill. Hemphill did not testify that she complained to Finley, but did testify that Finley criticized the work of all the employees. Ketchum, employed by the respondent as a presser, testified that Cheek's work was not satisfactory in that the trousers she "cleaned" came to him with so many excess threads attached that they required recleaning, which work he helped Hemphill do. However, Hemphill testified she could recall but one occa- sion on which Ketchum helped her and that she could not remember what he did at the time. Ketchum testified that no employee, other than Hemphill, worked at "cleaning" with Cheek. This was contradicted by Cheek, Hemphill and Frits. Ketchum testified that Hemphill complained to him regarding Cheek's work. Hemphill denied that she ever complained of Cheek's work to Ketchum. Ketchum further testified that as soon as Cheek was replaced the "cleaning" job was perfectly done. The record indicates that Cheek was replaced by an inexperienced employee. Hemphill testified : I always had to clip threads in final inspection. Q. Even after you conducted the first inspection ["cleaning"] yourself? A. That's right. Ketchum did not impress the undersigned as a credible witness. Hemphill, on the contrary, impressed the undersigned as credible. The undersigned, therefore, does not credit Ketchum, but does credit Hemphill and finds that Cheek's work was satisfactory. In crediting Hemphill the undersigned does not accept as true the testimony of Finley to the effect that Cheek's work was unsatisfactory and that she spent one third of her time in talking to other employees. As previously found, sometime before Cheek was discharged Mrs. Rucker asked Mahanes if she knew "that Mrs. Cheek had taken up money for the Union," and sometime later Finley asked her the same question. Likewise, as previously found, Mrs. Rucker asked Scott if Cheek had passed authorization cards. Frits testified that on the day of Cheek's discharge : Mr. Finley came up the line in the morning, it must have been 9:30 or 10:00 o'clock when he made his rounds. He said, "Do you know that is another one of those union guys over at the cleaning table?" I said "No. I didn't, Mr. Finley," and he says, "Well, it is, and we will get rid of her at noon." Only Cheek was at the cleaning table at the time. Finley then instructed Frits to tell Cheek to bring her scissors to the office when she checked out at noon. However, Frits delayed informing Cheek and before noon Finley himself told Cheek to come to the office, where she was discharged. Frits testified that VINITA GARMENT MANUFACTURING COMPANY 925 after Cheek's discharge, Finley said to Frits, "That would be a lesson for the other employees." Frits' testimony was not denied and is credited by the undersigned. Concluding findings on the discharge of Freda Cheek Cheek worked in the respondents' Vinita plant approximately 25 days. She was inexperienced, as were her fellow employees who are characterized in the record as "amateurs." While it is true that the pressers called Finley's atten- tion to the threads remaining on the trousers after "cleaning," the entire fault cannot be attributed to Cheek. Employees who had any idle time were inter- mittently assigned to work with Cheek. Hemphill, who worked with Cheek, testified that she removed threads from garments in final inspection, even after she had done the original "cleaning" herself. All of the employees were inex- perienced and were in the process of learning their assigned tasks. It is not unusual that complaints and criticism would be made during this period. The credible evidence reveals that although Cheek's work was not perfect, it was no worse nor better than that of the other employees. The undersigned is convinced that Cheek's work, judged together with the work of inexperienced "amateurs" was not of such low quality as to bring about her discharge. Despite Finley's testimony that on Saturday July 21, he told Cheek that her work was unsatisfactory ; that she talked too much, and that he further informed her that this was his last warning to her, nevertheless, on Monday July 23, approximately 3 working hours later, Finley discharged her. There is nothing in the record to show, nor (lid Finley so testify, that anything occurred in the interim with respect to Cheek's work or conduct to warrant her discharge. In fact, at about 9:30 or 10 o'clock that morning Finley indicated to Frits that he was going to get rid of Cheek at noon that day because she was "one of those union guys." The record discloses the respondents' fixed purpose to defeat self-organization of their employees. Cheek and Seigel were the only employees active on behalf of the Union. Seigel was discharged within 2 days after she first engaged in union activity. Two days following Seigel's discharge Cheek was in effect warned, by Finley, regarding her union adherence. The warning was on Satur- day. On Monday Cheek was discharged. Cheek's testimony that at the time of her discharge, Finley told her, "Your interest is not here any longer," re- mains undenied. The undersigned is convinced that Cheek's union membership and, activity and not the poor quality of her work or excessive talking was the reason for her discharge The undersigned finds, upon the entire record in the case, that the respondents discharged Freda Cheek on July 23, 1945, because of her membership in and activities on behalf of the Union, and that by such discharge the respondents have discriminated in regard to her hire and tenure of employment, discouraged membership in a labor organization, and thereby interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents, set forth in Section III above, occurring in connection with the operation of the business of the respondents described in Section I above, have a close, intimate and substantial relation to trade, traf- fic and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Since it has been found that the respondents have engaged in unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As clearly reflected by the entire record in the case the respondents' illegal conduct discloses a purpose to defeat self-organization and its objects among their employees. As soon as their employees made the first attempt toward self-organization the respondents' fixed purpose to thwart their efforts became apparent through systematic interrogation, advice to refrain from joining or re- maining members of the Union and the discriminatory discharge of Seigel and Cheek. Inasmuch as a discriminatory discharge "goes to the very heart of the Act,"' the undersigned is convinced that the respondents' unlawful conduct as found herein, together with its underlying purpose to defeat their employees' Attempted self-organization at its very inception, are persuasively related to the other unfair labor practices hereinafter proscribed and that danger of their commission in the future is to be anticipated from the respondents' illegal con- duct in the past. The preventive purposes of the Act will be thwarted unless the recommended order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and therefore to minimize strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, the undersigned will recommend that the respondents cease and desist from in any manner infringing the rights guaranteed in Section 7 of the Act. Since it has been found that the respondents discriminated in regard to the hire and tenure of Bettye Seigel, thereby discouraging membership in the Union, the undersigned will recommend that they make her whole for any loss of pay She may have suffered because of the discrimination practiced against her by payment to her of a sum of money equal to that which she normally would have earned as wages from July 19, 1945, to the date she would have quit 8 less her "net earnings"' during said period. Because Bettye Seigel testified that she did not desire reinstatement, the undersigned will not recommend that the Board make its usual order of reinstatement as to her. i Since it has been found that the respondents discriminated in regard to the hire and tenure of Freda Cheek, thereby discouraging membership in the Union, the undersigned will recommend that the respondents offer Freda Cheek imme- diate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority or other rights and privileges and make her whole for any loss of pay she may have suffered by reason of the discrimination N. L. R. B. v. Entwistle Manufacturing Co., 120 F. ( 2d) 532, 536 (C. C. A. 4). See also N. L. R. B. v. Automotive Maintenance Machinery Co., 116 F. ( 2d) 350, 353 (C. C. A. 7), where the Court observed : "No more effective form of intimidation nor one more violative of the N. L. R. Act can be conceived than discharge of an employee because he Joined a union . . s Since the record falls to establish exactly on what day Seigal intended quitting the undersigned is unable to set a definite date . However, the record is clear that she would have left the respondents ' employ, absent the unfair labor practices, within the week following the day of her discharge . See footnote 20 of Board 's Decision and Order in Fairmont Creamery Company, 64 N. L. R, B. 824. # By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondents, 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, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal , or other work-relief projects shall be considered as earn- ings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. VINITA GARMENT MANUFACTURING COMPANY 927 practiced against her by payment to her of a sum of money equal to the amount she normally would have earned as wages from July 23, 1945, the date of her discriminatory discharge, to the date of the respondents' offer of reemployment, less her net earnings 10 during said period. Upon the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CoNct.ustoNs of Law 1. Amalgamated Clothing Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Bettye Seigel and Freda Cheek the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3 By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the Trial Examiner recommends that the respondents Sam Brauer, Etta Brauer, Max Gressman, and Elsie Gressman, co-partners doing business as Vinita Garment Manufacturing Company, Vinita, Oklahoma, their agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Amalgamated Clothing Workers of America, CIO, or any other labor organization of their employees, by discharging or refus- ing to reinstate any of their employees, or in any other manner discriminating in regard to the hire or tenure of their employment, or any term or condition of their employment ; (b) In any other manner interfering with, restraining, or coercing their em- ployees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist Amalgamated Clothing Workers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or any other mutual aid or protection, as guaranteed in Section 7 of the Act. 2 Take the following affirmative action which the undersigned finds will effec- tuate the policies of the Act: (a) Offer to Freda Cheek immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority or other rights and privileges ; (b) Make whole Freda Cheek and Bettye Seigel for any loss they may have suffered by reason of the respondents' discrimination against them in the manner set forth in the Section entitiled "The remedy" above ; (c) Post at their plant at Vinita, Oklahoma, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the Sixteenth Region, shall, after being duly signed by the respondents' representative, be posted by the respondents immediately upon 10 See footnote 9, supra. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receipt thereof, and maintained by them for sixty (60) consecutive days there- after in conspicuous places, including all places where notices to employees are customarily 'posted. Reasonable steps shall be taken by the respondents to insure that said notices are not altered, defaced, or covered by any other muaterial; (d) File with the Regional Director for the Sixteenth Region on or before ten (10) days from the date of the receipt of this Intermediate Report, a report in writing setting forth in detail the manner and form in which the respondents have complied with the foregoing recommendations It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondents notify said Regional Direc- tor in writing that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondents to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, effective November 27, 1945, as amended, any party or counsel for the Board may within fifteen (15) days 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, Rochambeau Building, Washington 25, D. C, an original and four copies of a statement in writing setting forth such exceptions to the Interme- diate 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 permission 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. Louis PLOST, Trial Examiner. Dated February 25, 1946. APPENDIX A NOTICE TO ALL EMPIAYEEs Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and ip 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 em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist Amalgamated Clothing Workers of America, CIO, or any other labor organization, to bargain collectively through rep- resentatives on their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will offer to Freda Cheek immediate and full reinstatement to her former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed by her, and make her whole for any loss of pay she may have suffered as a result of our discrimination against her. We will make whole Bettye Seigel for any loss of pay she may have suffered by reason of our discrimination against her. VINITA GARMENT MANUFACTURING COMPANY 929 All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to the hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. SAM BRAUER, ETTA BRAUER, MAX GRnSSMAN AND ELSIE GRESSMAN , CO-PARTNERS DOING BUSINESS AS VINITA GARMENT MANUFACTURING COMPANY Dated-------------- By -------------------------------------------- (Representative ) ( Title) NOTE.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 692148-46-vol. 67-60