Arthur Winer, Inc.

ARTHUR WINER, INC. 651 partment,11 repair machinists in the foundry maintenance department, and production machinists and tool and die makers in the past model repair department, light machining department, and the automatics department, excluding all guards and supervisors as defined in the Act, may, if they so desire, constitute a separate appropriate unit. However, they may also continue as a part of the over-all production and maintenance unit represented by the Intervenor. We shall make no final unit determination at this time, but shall be guided in part :by the desires of these employees as expressed in the election directed herein. If a majority vote for the Petitioner, they will be taken to have indicated their desire to constitute a separate appropriate unit. [Text of Direction of Election omitted from publication in this volume.] "Including the parts control clerk. Great Lakes Spring Division of Standard Steel ' Ipring Company, footnote 5, supra (tool crib attendants included). ARTHUR WINER, INC. and AMALGAMATED CLOTHING WORKERS OF AMERICA . Case No. 13-CA-362. May 18, 1951 Decision and Order On December 19, 1950, Trial Examiner Eugene E. Dixon issued his Intermediate Report in the above-entitled proceeding, finding, that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Re- spondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Respondent's exceptions and brief, and the entire record in the case,l and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the additions and mod- ifications set forth below. 1 The request by the Company for oral argument is denied because the record, the exceptions , and briefs , in our opinion , adequately present the issues and the position of the parties. 94 NLRB No. 97. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. We agree with the Trial Examiner that the Respondent has violated Section 8 (a) (1) of the Act by interrogating its employees concerning their union activities.and by making promises of benefits to the employees if they abstained from such activities. We also agree with the Trial Examiner's finding that the Respondent by Supervisor Winkler engaged in surveillance in violation of Section 8 (a) (1) of the Act. The Respondent contends that information about the Union's first organizing meeting was volunteered by employee Kus- mierz, without any solicitation by Winkler. We accept the Trial Examiner's finding, discrediting Winkler's testimony that Kusmierz' report on the meeting was unsolicited. Furthermore, Winkler ad- mitted that on receiving Kusmierz' report, she asked for further de- tails as to who attended the meeting and what occurred there. 2. We do not agree with the Trial Examiner's finding that the Re- spondent threatened its employees with the closing or removal of its plant should the Union's organizational campaign be successful. This finding is based on the testimony of Boris Taleff, the husband of one of the Respondent's employees, to the effect that Winer, Respondent's president, told him that he, Winer, would close the plant before he would be dictated to by any union organizer. While we accept the Trial Examiner's findings crediting Taleff and discrediting Winer concerning this incident, we find that Taleff's testimony concerning this incident is too vague to warrant basing a finding thereon 2 3. We agree with the Trial Examiner's finding that the Respondent discharged Little for her activities on behalf of the Union, and thereby violated Section 8 (a) (3) and (1) of the Act. We find no merit in the Respondent's contention that Little was discharged because she burned out the bearings on her machine. Trinkle, the Respondent's repair mechanic, had charged Little with failing to oil her machine and thereby causing it to burn out sometime in May or June 1949. The Respondent at that time either did not consider the offense a serious one or did not trust Trinkle's judgment 3 as to the cause of the failure of Little's machine, for admittedly it did not confront Little with Trinkle's complaint nor warn her to oil the machine. The day after the union meeting and more than 2 months after Trinkle's complaint, Winer took the machine to the Lawrence M. Stein Com- pany, by whom he admittedly was informed that the failure of Little's. machine was due to its being run too fast.4 As the speed of these 2 The Trial Examiner points out that Taleff 's testimony was "not explicit " 3 Winer testified that because of Trinkle 's temper, the girls were afraid to ask him to fix their machines . Winer discharged Trinkle for absenteeism in November 1949. 4 The Respondent attempted to show that Stein's diagnosis of the trouble with the machine might have been mistaken and that the letter stating the diagnosis was written at the Respondent's suggestion: In any event, however, the record- shows that Stein at no time attriliuted the failure of the machine to any failure to oil it. ARTHUR WINER, INC. 653 machines is not within the control of the operator, but is set by the Respondent, Little could not. be charged with this error. Neverthe- less, on returning to the plant, Winer ordered that Little be discharged for failure to oil her machine. Considering this sequence of events, the Respondent's contention that it discharged Little for failure to oil her machine is not credited. Furthermore, the Respondent admitted that at the time of her dis- charge Little, who was a serger, had a higher production rate than the other serger, and that the quality of Little's work was above average. Winkler admitted that she had asked Little whether she was planning to attend the Union's organizing meeting, and Little credibly testified that she told Winkler, "Absolutely, I am going to that meeting." Kusmierz told Winkler about -Little's "attendance at 'and active par- ticipation in the Union's organizing meeting. In view of these cir- cumstances, and of the facts set forth in the Intermediate Report, we find that the Respondent discharged Little for her participation in union activities. 4. We agree with the Trial Examiner's finding that the Respondent discharged Munyon for her activities on behalf of the Union and thereby violated Section 8 (a) (3) and (1) of the Act. Munyon had attended and participated in the Union's organizing meeting, and Kusmierz had apprised Winkler of the fact. Munyon, who was employed as a cloth spreader, was a satisfactory worker as indicated by the fact that she had received several pay increases since starting to work for the Respondent and had been given a 2-week vacation although her seniority entitled her to 1 week-only. Accord- ing to the Respondent, Reicher, foreman of the cutting department where Munyon worked, had urged Winer in February 1949 to replace Munyon with a man who could do some of the heavy lifting work which Reicher had to do for Munyon, and the Respondent had-intermittently advertised for such a man with no success. In May or June 1949, Virgil Dawson, a qualified spreader and cutter, applied for employ- ment. He was rejected by Winer, because Dawson was then employed by a competitor and Winer stated that he did not wish to engage in labor pirating. Significantly, Winer's scruples against such labor pirating vanished on the day after the union meeting, when he got in touch with Dawson, who was still employed by the same employer, and hired him. The Respondent contends that it discharged Munyon because of its desire to replace her with a male employee. However, under all the circumstances, including those set forth in the Inter- mediate Report, we find that the Respondent would not have replaced _Munyon at the time it did so but for her activities on behalf of the 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union.5 This conclusion is supported by the credited testimony of Munyon that at the-time of her discharge she was not offered a job elsewhere in the plant at that time or in the event- a vacancy occurred, although, according to the Respondent, it could train an inexperienced person to be a sewer in a relatively short time, and the turnover among the sewing employees was high. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Arthur Winer, Inc., Gary, Indiana, its officers, agents, 'successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Amalgamated Clothing Workers of America, or in any other labor organization, by discriminatorily discharging any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment, or any terms or conditions of employment. (b) By means of interrogation, surveillance, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist Amalgamated Clothing Workers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, as guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a con- dition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Helen Little and Hazel Munyon immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make whole Helen Little and Hazel Munyon for any loss of pay each of them may have suffered as a result of the discrimination against them in the manner set forth in the section of the Intermediate Report entitled "The remedy." (c) Upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due. I As Reicher's statement that since hiring Dawson production in the cutting room has increased 15 to 20 percent is uncontradicted, we have considered this factor in. reaching our conclusion as to Munyon 's discharge. ARTHUR WINER, INC. 655 (d) Post at its plant in Gary, Indiana, copies of the notice attached here to as Appendix A.6 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respond- ent immediately upon receipt thereof, and be maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, includ- ing 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. (e) Notify the Regional Director for the Thirteenth Region, Chi- cago, Illinois, in writing within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. Appendix A NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership of our employees in AMALGAMATED CLOTHING WORKERS OF AMERICA, or in any other labor organization, by discriminatorily discharging any of our employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any terms or conditions of employment, WE WILL OFFER to Helen Little and Hazel Munyon immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay each of them may have suffered as a result of the discrimination against them. WE WILL NOT interrogate our employees concerning their union affiliation or activity, engage in surveillance of their union activi- ties, or in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist AMALGAMATED CLOTH- ING WORKERS OF AMERICA, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such rights In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words, "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing." 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may be affected by an agreement requiring membership as a con- dition of employment as authorized in Section 8 (a) (3) of the Act. All our employees are free to become, remain, or refrain from be- coming or remaining members of the above-named union or any other labor organization except to the extent permitted by the provisions of Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employ- ment against any employees because of membership in or activity on behalf of any such labor organization. Dated-------------------- ARTHUR WINER, INC., Employer. 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. Intermediate Report and Recommended Order Mr. Albert Gore, for the General Counsel. D'Ancona, Pflaum, Wyatt & Rtskind, by Mr. Donald J. Yellon and Mr. Maurice A. Risktnd, of Chicago, Ill , for the Responde>t. Mr. Murray H. Findley, Nelle Riddle, and Mr. Robert Hardy, of Chicago, Ill., for the Union. STATEMENT OF THE CASE Upon a charge duly filed by Amalgamated Clothing Workers of America, herein called the Union, the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, respectively, by the Regional Director of the Thirteenth Region (Chicago, Illinois), issued his complaint dated June 13, 1950, against Arthur Winer, Inc, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint and charge were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint as amended 1 alleges in substance that the Respondent: (1) Since on or about July 1, 1949, inter- fered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act by (a) questioning them regarding their union activities, (b) threatening to close the plant if employees selected a collective bargaining representative, (c) engaging in surveillance of union activities, and (d) granting economic benefits and offering promises of benefit and 'At the beginning of the hearing and during its course amendments to the complaint were allowed over objections alleging additional violations of Section 8 (a) (1) and 8 (a) (3) of the Act At the close of the oral argument the General Counsel offered further amendments upon which rulings were reserved The motions to amend are hereby granted. ARTHUR WINER, INC. 657 threatening the removal of existing benefits to interfere with the organization of the Union; (2) on or about September 9, 1949, discharged Helen Little and on or about September 17, 1949, discliai ged Hazel Munyon and has since failed and refused to employ them in the same or equivalent jobs because of their union activities; and (3) because of the aforesaid acts and conduct engaged in unfair labor practices in violation of Section 8 (a) (1) and (3) of the Act. In its answer as amended 2 Respondent admitted certain allegations of the complaint but denied that it had engaged in any of the unfair labor practices Pursuant to notice, a hearing was held from July 17 to 22, 1950, inclusive, at Gary, Indiana, before Eugene E. Dixon, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. All parties were represented by coun- sel, 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. Only the General Counsel availed himself of the opportunity to argue the issues orally on the record, but both the General Counsel and the Respondent filed briefs with the undersigned. Upon the entire record in the case, and from my observation of the witnesses, 1, the undersigned Trial Examiner, make the following : FINDINGS Or FACT 1. THE BUSINESS OF THE RESPONDENT Arthur Winer, Ine, is and at all times material herein has been an Indiana corporation with its principal office and place of business located at Gary, In- diana, where it is engaged in the manufacture of men's trousers. At all times material here the Respondent has used in its plant large quantities of raw mate- rials valued annually in excess of $100,000, of which approximately 90 percent was purchased from points outside the State of Indiana Respondent has an- nually manufactured products valued in excess of $200,000, of which approxi- mately 75 percent was sold and transported to points outside the State of Indiana. Respondent admits and I find that it is engaged in commerce within the mean- ing of the Act. II. THE ORGANIZATION INVOLVED Amalgamated Clothing Workers of America is a labor organization admitting to membership employees of the Respondent III. THE UNFAIR LABOR PRACTICES A. Background and issues Every summer since 1945 the Union had made unsuccessful attempts to organize Respondent's plant In the "forepart of June" of 1949, Union Organizer Nelle Riddle received orders to proceed to Gary and try again to interest Respondent's employees in the Union. For about a week after initially contacting a few em- ployees she compiled names and addresses and then began a series of telephone calls to see if there was sufficient union interest to support an organizational drive Determining that there was, she continued her telephone campaign and 2 Certain amendments to the answer were filed with the Trial Examiner after the close of the hearing They are hereby accepted and incorporated in the record and physically made pact of the exhibits as the Trial Examinei's Exhibit 1 9 5 3 841-5 2-vol 94-43 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then began personal calls at the homes of the employees. This continued until about the middle of August when illness' necessitated her replacement by Robert Hardy, another organizer. Hardy continued Riddle's procedure, and on or about September 1 mailed individual notices to the employees of a union meeting to be held September 6. At this time there were approximately 75 employees on Respondent's plant payroll, of whom about 15 attended the meeting Of these Helen Little and Hazel llunyon, both alleged in the complaint as having been discharged because of their union activities, attended the meeting and partici- pated in the open discussion after listening to Hardy's initial remarks. Detailed information about this meeting was given by employee Anne Kus- mierz to Supervisor Anne Winkler. One of the issues is whether the circum- stances of this disclosure amounted to surveillance on the part of Respondent. Another issue is whether or not the liberalizing of the 1949 vacations given the employees during the last week in June and the first week in July was for the purpose of influencing the employees in their consideration of the Union as a bargaining representative. Three days after the union meeting Little was discharged A week later Munyon's employment was also terminated. Respondent contends that Little was discharged because she had burned out her sewing machine several times due to her failure to oil it properly, and that Munyon was terminated in accordance with her foreman's plea that one of the two girls in the cutting department be replaced by a man so as to enable that department to increase its production as desired by Respondent's president, Arthur Winer. B. Interference, restraint, and coercion On the basis of Winer's own testimony it appears that in the latter part of July or the first part of August , Winer called into his office individually three employees , Eva Van Meter, Helen Bardash, and Katherine Romansky from different sections of the plant to interrogate them "about any dissatisfaction that was taking place there ." As explained in his testimony , he "Just asked them what was going on." In view of the fact that the union campaign was not instigated by the employees themselves but originated solely by reason of outside influence and since there is no evidence that there was any dissatisfaction on the part of the employees in their relationship with Respondent,' it is apparent and I find that Winer 's interrogation about dissatisfaction and about what was going on constituted Illegal interference on his part with the rights of his employees. As pointed out in Jasper National Mattress Company, 89 NLRB 75, involving similar interrogation , "There is nothing in the record indicating any concept of `trouble' on the part of the employees except events grounded in the Union and the concerted activities of the employees . . . Respondent's ques- tioning of its employees about the `trouble' they were having in effect was interrogation of its employees about their union activities , was so understood by the employees and violated Section 8 ( 1) of the Act." 4 3 In spite of the anomalous situation in which the General Counsel ' s witness Van Meter testified in part that matters involving the plant's production were discussed in her in- terview, and in which Winer testified to the contrary, her testimony that ". . . there wasn't any of us doing as much as we had been in the other place I knew something was wrong," obviously does not support a conclusion or finding that the employees were dissatisfied. ' This was a Wagner Act case The provisions of Section 8 (1) of that Act, however, were carried over into the Act as amended in Section 8 (a) (1). ARTHUR WINER, INC. 659, In addition, the evidence shows that in these interviews Winer asked Van Meter how the girls felt about the Union and asked Romansky what the Union had to offer. These questions were also violative of the Act 6 and further brand Respondent's fundamental purpose in these interviews as illegal. Winer's state- ment to Romansky that he was trying to make it better for the girls so they could have 2 weeks' vacation,` I find, under the circumstances it was made, to have been an offer of benefit for the purpose of influencing the employees' con- certed activities and also violated Section S (a) (1) of the Act' I do not interpret, under the circumstances herein, Winer's statement to Van Meter that if the girls "wanted a union that is what they could have" as a sincere statement on the part of Winer nor as an exculpation for his illegal interro- gations e Boris Taleff, husband of employee Josephine Taleff, testified that in the latter part of August, Winer, in the course of a conversation about a painting contract and the imminent strike in the steel industry, told him in substance that before he would have a union in his plant he would either cease operations or move to a new location-that he would not be dictated to by any union officials.9 Talef related this information to his wife that day and 2 or 3 days later, according, to Mrs. Taleff's credited testimony, she disclosed her information at lunch- time to a group of employees among whom were Little, Louise Shephard, and! three others identified by Mrs. Taleff only as Helen, Mary, and Nellie. Whilb' admitting to having had a cone ersation with Taleff about a painting contract, Winer, as an adverse witness under Rule 43 (b) of the Rules of Civil Procedure for the District Courts of the United States, although otherwise quite vague in his recollection, testified unequivocally that there was no union dis- cussion at that time. Later in Respondent's case-in-chief Winer testified that the subject of unionism did arise in this conversation but only in connection- with the steel industry and not as a subject of organization in his own plant. The vagueness and discrepancies in Winer's testimony about this incident as compared to the straightforward quality of Taleff's compels we to credit the latter. Respondent apparently contends that assuming arguendo the statement was- made, the question whether or not it is coercive turns on Taleff's agency or lack of agency to repeat it. Taleff's agency is not the crux of the matter but rather- the implications of its announcement and whether or not it was communicated to the employees determine its character. Coming as it did a few weeks after Respondent had demonstrated its inclination to interfere with and coerce its employees in their protected activity and being made to a spouse of an employee; the conclusion is compelling that the remark was calculated to reach the ears of the employees as in fact it did. Under these circumstances I find that Winer's remark to Taleff was coercive and violated Section 8 (a) (1) of the Act.1O About the end of August and just prior to the union meeting of September 6, union discussion among the employees became quite prevalent in the plant. 5 Meier & Frank Company, Inc, 89 NLRB 1016, The Cuffman Lumber Company, Inc, 82 NLRB 296 6 Based on the credited testimony of Romansky. Winer denied that vacations were mentioned in these interviews 7 Mission Oil Company, 88 NLRB 743; Mason & Hughes, Inc, 86 NLRB 848 8 Chicopee Manufacturing Corporation of Georgia, 85 NLRB 1439 : Colonial Life In- surance Co , 76 NLRB 653; Birmingham Post Company v. N L. R. B, 140 F (2d) 638 (C. A 5). 0 Although, as indicated in Respondent' s brief, Taleff's testimony on this point is not explicit it is nevertheless clear enough so as to preclude any other finding is Inter-City Advertising Company of Greensboro, N. C, Inc, 89 NLRB 1103; Andrews' Company, 87 NLRB 379; N L R. B. v. A. Sartorius & Co., 140 F. 2d 203, 204. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Anne Kusniierz, after informing Winkler that the Union was trying to get in the plant, apparently made a practice of going to Winkler's desk during the lunch period to chat-often about the Union. At noon on the day of the union .meeting, Kusmierz took her notice of the meeting to Winkler and asked her advice about attending the meeting Winkler told her, "Well, you are your own boss. It is up to you. If you want to, you can go and find out what it is all about " According to Kusmierz' testimony, at 4 p. in. that day when she went to punch out she found that her card had been pulled and was informed by the payroll clerk that Winkler wanted to see her When she saw Winkler the latter asked if she was going to the meeting and told her, "If you go, find out what is going on, what they are offering, things like that," and asked Kusmierz to call her when she got home. Kusmierz called Winkler that evening after the meeting and upon questions from Winkler, gave detailed information about what took place and who attended. Among those named were Little and Munyon. Kusmierz also testified that Winkler told her, "If you come to work tomorrow, don't come by the desk because the girls will be sort of suspicious of what is going on." Winkler in her testimony although admitting the telephone conversation with Kusmierz about the meeting that night, denied the remark about not coming by her desk, denied that she had pulled or ordered Kusmierz' card pulled, but could not recall and did not deny the conversation with Kusmierz that after- noon. By her demeanor on the witness stand and in view of the numerous self-contradictions in her testimony, Winkler did not impress me as a reliable witness. Accordingly, I credit Kusmierz' version. Thus, notwithstanding Kusmierz' previous offers of information and her request to Winkler for advice about attending the meeting and her obvious willingness to be of service to Respondent, I find that Winkler's request for and acceptance of a report on the union meeting constituted surveillance of its employees' union activities in violation of Section 8 (a) (1) of the Act" In addition to this violation of the Act of Winkler, who clearly was a supervisor under the Act, she, by her own admission on the witness stand, disclosed that she interrogated several of the employees as to their intentions regarding attendance at the union meet- ing and that she also asked Romansky what the latter would get out of the Union.' All production employees' vacations in Respondent's plant are taken at the same time during a period when the plant is not operating. In 1948 Respondent had granted its employees a 1-week vacation or less with pay depending on the length of service. In 1949, however, Respondent on or about June 1 posted a notice that employees with 5 years or more of continuous service would receive 2 weeks' paid vacation. The vacation period in 1949 was during the last week in June and the first week in July. Sometime before the end of the pay period in which the last of the vacation pay was given to the employees, which ap- parently was July 22, Respondent, unbeknown to most of the employees, changed its announced vacation policy and decided to pay 2 weeks' vacation to em- ployees with substantially 4 years of service In addition, it appears that all employees in the cutting department received 2 weeks' paid vacation without .regard to length of service. It also appears, however, that although the ma- jority of Respondent's employees were paid on a piecework basis, the cutting department employees were paid on an hourly basis n Cleveland Veneer Company, 89 NLRB 617; The Post Printing and Publishing Com- pany, 90 NLRB 1820 12 These interrogations also violated Section 8 (a) (1) of the Act. See Standard- tfoosa-Thatcher Company, 85 NLRB 1,358 ARTHUR WINER, INC. 661 The General Counsel contends that the later liberalization of the vacation policy was motivated by Respondent's desire and purpose to influence its employees in their concerted activity thus coercing them in the exercise of rights guaran- teed them in the Act. The Respondent denies this, contending that it had no knowledge of its employees' union activities prior to the time the 1949 vacation policy was ultimately disposed of. Aside from the inference that by virtue of the smallness of the plant and the possible anticipation on the part of the Respondent that the Union would engage in its annual campaign to organize the plant, there is nothing in the record to refute Respondent's contention.. Indeed, what evidence there is on the matter tends to support Respondent. Thus, it is quite apparent that Respondent's original intention to liberalize its vacation policy arose even before the union organizer had been ordered to commence the campaign. The testimony further shows that upon investiga- tion by Fresh, it was discovered that under the original policy only five people in the entire plant would receive 2 weeks' paid vacation. Accordingly, it is reasonable enough to assume that Respondent, motivated by its -original good faith, might have felt that further revision of the vacation policy was in order- Since no union organizer ever made an appearance at the plant and since the record is devoid of evidence of any discussion or union activity whatsoever at the plant until about the latter part of July or the first of August, and inr view of the fact that Winer did not make his personal attempt to find out "what was going on" until about that time, plus the fact as shown by the testimony of both Munyon and Fresh that the cutting department employees were notified about a week or 10 days before vacations started that they were to get 2 weeks' paid vacation, I find that the General Counsel has failed to establish by a pre- ponderance of the evidence that Respondent had knowledge of the union activity of its employees at the time the 1949 vacation policy was fully effectuated and executed. C. The discharge of Helen Little Little had been employed by Respondent as a serger from 1939 to 1942 and was rehired January 5, 1949, to fill a vacancy Serging is done on the second floor of Respondent's plant where the rest of the sewing department is located. There is no question about her competence and it appears that of the two sergers employed at the time of her discharge, she was the better operator. She joined the Union in July and during the month of August discussed the Union during, lunch periods and at other times with employees virtually every day. Just prior to the union meeting of September 6, according to Little's testimony Winkler came up to her machine and asked her if she was going to attend the meeting. Little replied, "Absolutely, I am going to that meeting," adding, "I would like to know what the Union has to offer the girls." Winkler said, "Yes, I would go if I was you," and told her that Winer had called several of the girls into the office to talk about the Union and had told them "he didn't care if the girls had a union in the shop." Little then asked why did Winer "talk to a certain party and tell them that if the girls brought in a union into the plant he was going to close shop"? Winkler shrugged her shoulders and walked away. Of the foregoing, only the question about Winer was denied by Winkler. I credit Little. Little attended the meeting and took active part in the discussion asking about possible rates for work on various types of materials as well as on specials- and samples. On September 9 when Little went to punch out at 4 p. in., she was told that she was wanted in the office. In the office Fresh said to her, "Helen, we feet 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that you are very dissatisfied with your work, and we don't like to keep people here that are dissatisfied. We got a report from Chicago saying that you burned out the bearings on your machine." Little questioned the reason given for her discharge and suggested that it was motivated by her union activity. Fresh replied, "What union? Tell me about it." Respondent contends (1) that the sole reason for Little's discharge was its `concern over the repair expense occasioned by failures in her machine" due, in its belief, to Little's failure to properly oil it, and (2) that it had no knowledge of Little's union activity prior to or at the time of her discharge On the record herein it is obvious that the latter contention is without merit. The facts in support of the first contention are as follows : According to Winer's direct testimony, right after the vacation period in 1949 Winer and Winkler had occasion to investigate a defect that had developed in the serging operation. At this time it was discovered that Little's machine was not operating properly. When Henry Trinkle was called over to adjust it he became angry and asked Winer if he wanted him to spend half his time on one girl's machine. However, Trinkle worked on it and in 2 or 3 days got the machine in perfect adjustment. About a week later, which date would have been around July 18 or 19, Winer checked with Little about the operation of her machine. Little complained that it did not run fast enough. Winer called Trinkle over about the matter. Trinkle again became angry and asked Winer to step over to his machine shop telling him he had something to show him. In the shop Trinkle produced four sets of burned out bearings which he attributed to Little. Winer requested an explanation and Trinkle told him they had been burned out because Little had not oiled them." Winer then happened to notice a Merrow serging machine covered with dust under Trinkle's work table and asked what was wrong with it. Trinkle replied that it was burned out. Winer asked whose it was and Trinkle informed him that it was Little's machine. According to Winer's further testimony, Trinkle refused to repair the machine so Winer told him he would take it to the Lawrence M. Stein Company, a repair concern in Chicago. Thereafter nothing was done about the entire matter until, sig- nificantly, the day of the union meeting some 6 weeks to 3 months later. Then Winer took the machine to Stein's partially explaining his action on the basis that he did not like "Trinkle's idea of saying that he doesn't know what is the matter any more. . . . " In addition to the implausibility of Trinkle's having "refused" to repair the machine, it is apparent that this statement is contrary to Winer's prior testimony that Trinkle told him that the machine was burned out. When Winer got to Stein's he did not leave the machine at the parts depart- ment as is normally done, but took it directly to a Mr. Tinley whom he described as "the head man" at Stein's. Winer told Tinley, "I've come here to find out things. We have got a machine in here that I say to you is a machine that has given me nothing but trouble. I have no other trouble with any other operators that operate machines, but, that particular machine has caused us endless trouble." When Winer raised the question as to whether some basic defect might "cause these bearings to burn out," Tinley laughed and answered in the negative and, according to Winer, in substance informed him that when the machines are not properly oiled they burn out. Then Winer asked about the proper speed at which to operate the sergers and Tinley, after saying that the proper speed depended on a number of factors, summarized with the state- ment that "Speed doesn't make any difference." After discussing the grade of 13 On cross-examination Winer testified that it was in May or June prior to the vacation period that he discovered that Little was burning out the bearings on her machine. ARTHUR WINER, INC. 663 vii required in the machines, Winer asked Tinley to rush the repair of the machine and deliver it to Winer's father-in-law in Chicago so that it could be picked up on Sunday because Winer "probably would need the machine if they were being burned out as fast as they had been." Immediately thereafter, Winer tried to see the president of Stein's but the latter not being in, he talked to a 11Ir Jerdee, secretary of the Company, and told him he wanted Jerdee to do him a favor, namely to give him a book of in- structions showing the permissible speed of the Merrow machine Upon learn- ing that Jerdee had no such book, Winer then asked him to write Winer a letter telling him "how fast these machines could go" explaining that "tlhe reason for wanting this information is that we have been burning out this machine" and "I yam going to get to the bottom of burning out the Merrow machines . . ." Winer testified that Jerdee objected to writing the letter and asked this amazing question in explanation, "I haven't examined your machine . . . how can I write a letter without examining your machine to tell you what happened to it9" Winer "argued with him intensely on the subject" and pleaded unsuccessfully for the letter. Then he told Jerdee, "If you don't want to write it, what is the speed the machine should run at?" Jerdee replied, "I can safely say four thousand." Winer then asked Jerdee to permit him to dictate the letter, telling him that the reason he wanted to dictate the letter was because he wanted "these machines to run at the right speed." Winer then dictated a letter which ,lid not meet with Jerdee's approval. A day or two later, apparently on the day Little was discharged, Winer received the following letter from Stein's rewritten, according to Winer, "along the lines" that he had dictated it. SEPTEMBER 8PM, 1949. ARTHUR WINER, INC., 10th Ave. at Garfield St., Gary, Indiana. GENTLEMEN • We have carefully checked over the Merrow Machine which Mr. Winer brought in to us for repairs and find that the bearings are badly scored due, in our opinion, to operating the machine at a speed far in excess of what it should be. May we suggest that you check up and see what speed this machine is now set at and if your running it more than 4,000 stitches please cut the speed down? We cannot guarantee satisfactory service on this machine if it is operated at a higher speed and 3 on will continue having this trouble and expense if this is not corrected. We are very sorry to be obliged to write you in this manner. Yours very truly, LAWRENCE M. STEIN COMPANY, By: C. A. JERDEE, Secretary-Treasurer. After his conversation with Jerdee, Winer called Trinkle and asked him what size pulleys they needed to decrease the speed of the machines. He thereupon purchased, not at Stein's however, although they apparently carried them, sev- eral pulleys which, upon his return to Gary, Trinkle installed on the Merrow sergers replacing the larger, faster pulle} s previously used. Then, according to Winer's testimony, having decided on the basis of what he learned at Stein's that Little was burning up her machine because of her failure to oil it, Winer in- structed Fresh to discharge her. In my opinion the preponderance of the evidence refutes Respondent's con- tention that Little was discharged because of its belief that she failed to oil her machine. As pointed out by Respondent in its brief, whether she did or did not oil her machine is not the issue, although she testified credibly that she had al- 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ways oiled her machine properly and denied that she was ever told by anyone to oil her machine. In view of Respondent's almost frantic effort to get a letter from Stein's about Little's machine and the obvious incongruities and implausibilities recited by Winer in connection therewith, and in view of Winer's testimony that no bear- ings burned out on the machine Little was operating during the period that the machine carried to Stein's was under Trinkle's work table, I am convinced that Respondent had no doubt that Little had properly oiled her machine, and con- clude that Respondent's purpose was to get a statement from Stein's to the effect that the machine had been burned out because it had not been properly oiled, thus to supply documentary proof in support of a pretext for Little's discharge. Even if Respondent had some prior doubt that Little had properly oiled her machine, it is apparent that the information supplied by Stein's should have dispelled that doubt The fact that Winer purchased and installed slower pulleys on the serging machines after his trip to Stein's is ample proof that he was convinced that his machines had been operating at an excessive speed. And his testimony that if the machines "were already burning out I would want to speed them down, not speed them up" shows that he new that excessive speed was the cause of his difficulty. Moreover, assuming argueiido the truth of Winer's testimony that at least d weeks, if not 3 months, prior to Little's discharge he was informed that she had burned out several sets of bearings due to her failure to oil her machine, the fact that Winer waited until the day that the union activities of his employees was to reach the climax of a first meetinv to take action about the matter, compels the conclusion that whatever concern Respondent had about Little's treatment of her machine it was her union activities that galvanized and actually motivated Respondent's actions with respect to Little's discharge" I so find. The disparity in the reasons given Little at the time of her discharge and those advanced at the hearing support this conclusion 35 Indeed, the dissatisfaction attributed to Little at the time of her discharge would appear to be the same type of dissatisfaction about which Winer illegally interrogated his employees. I find that Little was discharged because of her union activities. Her repre- sentation to the Indiana Employment Security division that the reason for her unemployment was "no work available" is not controlling. See Ozark Hardwood Company, 91 NLRB 1443. D. The dischai ye of Hazel 11mulon. About a year prior to Munyon's discharge Reicher, because of Wiper's demand for more production in the cutting department, requested Winer to replace one of the two girls in the department with a man so as to eliminate the necessity of his being interrupted in his work to help lift the piece goods from the bin to the cutting table, which task was too heavy for the girls to perform. Thereafter, Reicher continued to press for a man snaking about a dozen requests to Winer up to May or June of that year. At about that time Virgil Dawson, an experienced spreader and cutter, called on Respondent and applied for a job. Dawson was then employed by the Albert Givens Company, another clothing manufacturer in the area. According to Winer's testimony he told Dawson at that time, "I need a nian, but I am not going to take Mr Givens' help away from him. We don't like to go after each others help. I want to be able to say `hello' to him when I see him. I don't 14 F. W Woolworth Company, 90 NLRB 289. 15 Stokely Foods, Inc, 91 NLRB 1267. ARTHUR WINER, INC. 665 want him to think I am trying to take his help away You leave your application here, and maybe sometime if you ever quit over there, come to me and if I have anything open, I will take you. under those circumstances only " Nothing further happened with respect to Dawson's application until the first part of September ; then on Friday, September 9, Winer got in touch with Daw- son, who was still employed at Givens, and asked him to come in and see him the following day. Dawson appeared at Respondent's plant the following morning about 11 a. m. and was hired at that time.18 When Dawson was hired by Respondent he was earning $155 an hour at Givens. His starting rate with Respondent was either $160 or $1 tin an hour. In explanation of why, in view of his original reluctance to take Givens' help away, Dawson was hired at this time, Winer testified that Dawson told him "Ile was being pushed around a little bit" at Givens and was not happy there. Munyon was employed by Respondent in October 1947 and was assigned to the cutting department located on the first floor of the plant where her major duty was spreading cloth. She also bundled the spreads and stitched pleat markers. She was earning 80 cents an hour at the time of her termination, having received three raises during her 2 years with Respondent Admittedly she was a good employee and her competence is not at issue. She attended the union meeting and took part in the discussion there. She also discussed the Union at the plant with her coworker. Elvia Herr, who had been with Respond- ent for about 5 years. One one occasion Munyon was told by Iteicher, "You know Hazel, if we had a Union here it wouldn't make it any better for us. I couldn't join it I am a supervisor." About noon on Saturday, September 17, Reicher told Munyon that Fresh winter to see her According to Munyon's testimony, when she entered the office Fresh had Munyou's check in her hand and asked her to be seated. Fresh then told her that her services were no longer required, that the job was too heavy for her and that a man had been hired to replace her. Fresh also said that this action came as a surprise to her. Munyon then asked if any other job was available Fresh replied, "Well, there is none available, and ^ on can't stitch " Munyon testified that she interpreted this remark to mean that there might be a sewing job available and added, "But I can't stitch, and she didn't ofter inc any stitching because of that" As she left the office Fresh told her "That the man might not be satisfactory" and that it was possible she might be called back in a week. In her version of the incident Fresh denied the remark about being surprised and testified that in reply to Munyon's query about the availability of some- thing else she asked, "Well what about stitching? Do you think you can sews" Fresh then testified that Munyon replied that "She didn't think she would be interested in that," but a few moments later changed her testimony to the effect that Munyoh replied, "No, she didn't think she could do that." Fiesh then 16 This finding is based on Winer's and Reicher's testimony. Although the testimony is vague as to dates Winer's was quite definite that his call to Dawson was on a Friday, and that the interview with Dawson took place the following day Reicher was called in on the interview and testified that it was at that time that Dawson was hired Since there is no indication in Winer's testimony that he had any other contacts whatsoever with Dawson at or about this time, and in view of the tenor of Reicher's testimony that his opinion was'sought of Dawson's qualifications at this time, I conclude that the call to Dawson and his hiring took place on September 9 and 10 respectively The fact that the question of the Dawson's notice to Givens was raised in this interview indicates that Dawson gave a 1-week notice, notwithstanding Winer's testimony that Dawson felt he ought to give 2 weeks' notice Although Dawson was working for Respondent at the time of the hearing Respondent did not call him as it witness 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told Munyon, "Hazel, the only other possibility would be to put you in the cleaning or finishing department and we don't have an opening there now, and if we (lid it would mean that you would have to work for less money . . . On cross-examination Fresh admitted the possibility of having made the declara- tory statement, `Well, you can't stitch,"'-' and further testified that she told Munyon that when she had been hired she had declined a sewing job. In spite of Reicher's conclusionary testimony that the production of the cutting department increased "10 to 15 or 20 percent" the first week Dawson worked, the record leaves considerable doubt that Munyon's replacement by Dawson was motivated by economic considerations or that indeed it resulted in any substantial benefit to Respondent. Thus it appears that Dawson although paid at twice the rate Munyon had received, spends 80 percent of his time spreading. Although lie devotes the other 20 percent of his time to more important work of which Munyon was not capable, Reicher takes over his spreading duties at this time with the result that since Munyon's discharge Reicher has spent 20 percent of his time spreading whereas prior thereto he de- voted no time at all to that task. Moreover, in view of the length of the time Dawson was available to Respondent, and in view of Fresh's statement to Munyon that it was possible that Dawson's replacement of her might not prove to be successful, it is apparent that Respondent was not convinced of its feasibility or of its economic necessity. In any event, assuming that the change had been contemplated in good faith and that its economic value has been proven, in view of the entire record' and its revelation of Respondent's union animus and illegal conduct I am con- vinced that the circumstances of Winer's sudden reversal of his apparently sincere reluctance to engage in labor pirating occurring as it did at the height of the Union's campaign to organize his plant and on the very day that Winer had discharged an employee because of her union activities, was primarily motivated by discriminatory considerations, and that Munyon was the object of that discrimination. The circumstances of Munyon's terminal interview with Fresh, in my opinion do not establish Respondent's good faith in Munyon's discharge. Thus, al- though Fresh testified that Munyon was a good employee and although her termination, which Fresh described as a layoff, had been decided upon for a full week, she was given no advance notice thereof. Instead when she appeared at the office on the day she was discharged her check was ready for her and she was confronted with a fait accompli Nor did Respondent volunteer any solacing alternatives Only by reason of Munyon's initiative in the matter was anything of this nature mentioned by Fresh, and it is clear that even then it amounted to nothing more than polite possibilities. Respondent contends that Munyon was offered a sewing job and refused. By Fresh's own version of the incident it is clear that at most it amounted to an indication by Respondent of the possibility of a sewing job and the indication by Munyon of the possibility of her refusal. Moreover, although the reason does not appear, it is clear from Munyon's testimony that she could not sew. It is also apparent from Fresh's testimony that Respondent was aware of this fact. Under these circumstances and in the consideration of the entire record, I am convinced that whatever significance the mention of sewing had with respect to Respondent's discharge of Munyon it did not amount to a good faith offer for such employment. Accordingly, I find that Munyon's discharge was 17 Fresh at first admitted making the statement, then testified that she used the word "sew" rather than "stitch," then denied the statement and finally admitted that she may have made it. I find that Fresh made the statement in quesion. ARTHUR `WINFR, INC. 667 motivated by her union activities, that Respondent, having similarly discharged one of the staunch union adherents on the second floor, decided on the very same day that it would be expedient to eliminate a similar influence on the first. As in the case of Little, Respondent's contention that it had no knowledge of Munyon's union activity prior to or at the time of her discharge is without merit. Respondent's knowledge of the union activities of both these employees is reasonably inferable from the small size of Respondent's plant and among other ways by the information obtained from Kusmierz by Winkler.hi In the conclusions and findings herein I do not rely on any of the testimony of either of the Trinkles whom I do not consider to have been reliable witnesses- IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in Section III, above, occurring in connection with its operations described in Section I, above, have a close, in- timate, 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 Having found that the Respondent has engaged in the unfair labor practices set forth above, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Thus it will be recommended that Respondent remedy its discrimination against Helen Little and Hazel Munyon, by offering to each of them immediate and full reinstatement to her former or substantially equivalent position 19 without prejudice to her seniority or other rights and privileges. It will be recommended further that the Respondent make them whole for any loss of pay that they may have suffered by reason of the Respondent's discrimination against them. In accordance with the Board's policy,20 I shall recommend that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discrimination on September 9, 1949 in the case of Little, and September 17 in the case of Munyon to the date of a proper offer of reinstatement. The quarterly periods, hereinafter called quarters, shall begin with the first day of January, April, July, and October. -Loss of pay shall be determined by deducting from a sum equal to that which each of the employees diserimina'ted against would normally have earned for each quarter, or portion thereof, her net earnings,21 if any, in other employment during 1s Quest-Shon Mark Brassiere Co , Inc., 80 NLRB 1149; Jasper National Mattress Com- pany, 89 NLR)§ 75. 19 In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position wherever possible and if such position is no longer in existence then to a substantially equivalent position " See The Chase National Bank of the City of New York, San Juan, Puev to Rico, Branch, 65 NLRB 827 'O F. W Woolworth Company, 90 NLRB 289. n 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 elsewhere, which v.ould not have been incurred but for this unlawful discrimination, and the consequent necessity of his seeking employment elsewhere Ci ossett Lumber Company, 8 NLRB 440: Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered earnings. Republic Steel Corporation v_ N. L. R. B., 311 U. S 7 `668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that period. Earnings in one particular quarter shall have no effect: upon the back pay liability for any -other quarter. I shall also recommend that the Respondent make a vailaable to the Board, upon request, payroll and other records to facilitate the checking of the amount ,of back pay due.2' The violations of the Act which the Respondent committed are persuasively related to other unfair labor practices proscribed by the Act, and the danger of their commission in the future is to be anticipated from the Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore, to make more effective .the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record of the .case, I make the following : CONCLUSIONS or LAW 1. Amalgamated Clothing Workers of America 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 Helen Little and Hazel Munyon , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By such discrimination and 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 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting ,commerce within the meaning of Section 2 (6) and ( 7) of the Act. [Recommended Order omitted from publication in this volnme.J m F. W. Woolworth Company, supra. MACHINE PRODUCTS COMPANY, INC. and LOCAL No. 948, INTERNATIONAL UNION OF OPERATING ENGINEERS . Case No. 16-CA452. May" 18, 1951 Decision and Order On February 12, 1951, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that he cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. 'Plieareafter, the Re- spondent filed exceptions to the Intermediate Report and a brief in support thereof. :94 NLRB No. 106.