Sue-Ann Manufacturing Co.

848 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD sentative has been selected by a majority of the employees in the -stipulated unit,' we shall dismiss the petition filed herein. Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. 8 The parties stipulated that the appropriate unit was comprised of the following em- ployees of the Employer at the plant here involved : All production and maintenance employees, excluding office and clerical employees, plant clericals , professional employees , guards, and supervisors as defined in the Act. IRVING LAMBERT, MURRAY B . LAMBERT, AND SEYMOUR LAMBERT D/B/A SUE-ANN MANUFACTURING COMPANY land DALLAS JOINT BOARD, INTERNATIONAL LADIES GARMENT WORKERS UNION. Case No. 16-CA-261. March 28, 19510 Decision and Order On October 12, 1951, Trial Examiner Charles W. Schneider issued his Intermediate Report in this proceeding, finding that the Respond- ent had engaged in and was'engaging in conduct violative of Sections 8 (a) (1), 8 (a) (3), and 8 (a) (5) of the Act, 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. The Trial Examiner also found 'that the Respondent had not engaged in certain other violations of Section 8 (a) (1). alleged in the complaint. Thereafter, the Respondent filed exceptions to the Intermediate Report. The Board 1 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 Intermediate Report, the exceptions, and the entire record in this case, and hereby adopts the findings,2 conclusions, and recommenda- tions 3 of the Trial Examiner. I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Members Houston and Styles]. 2 There are a few minor misstatements in the Intermediate Report. We note, and hereby correct, the typographical errors in the section entitled "The January 26 meeting of em- ployees" in which September 26 appears instead of January 26 . We also note that in discussing the Union 's majority the Trial Examiner states that there is no evidence of disaffection from the Union through December 1949 . The record contains some evidence which suggests that Lambert learned of some dissatisfaction with the union during the last part -of December. • However, apart from the fact that this evidence does not, in itself, suffice to show that the Union had lost its majority representative status at any time in December, none of this evidence demonstrates disaffection before December 8 and 12, 1949. Any defections from the union after those dates were attributable to the unfair labor prac- 98 NLRB No. 139. SUE-ANN MANUFACTURING COMPANY 849 Order Upon the entire record in the 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 Irving Lambert, Murray B. Lambert, and Seymour Lambert, d/b/a Sue-Ann Manu- facturing Company, Dallas, Texas, their officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Dallas Joint Board, International Ladies Garment Workers Union, or by any other labor organization of their employees, by discriminatorily refusing to reinstate any of their. employees or by otherwise discriminating in regard to their hire or tenure or conditions of employment. (b) Refusing to bargain collectively with Dallas Joint Board, In- ternational Ladies Garment Workers Union, as the exclusive repre- sentative of the employees in the appropriate unit described in the Intermediate Report with respect to terms and 'conditions of -employment. (c) Interfering with, restraining, or coercing employees in the ex- ercise of the right to self-organization, to form labor organizations, to join or assist-Dallas Joint Board, International Ladies Garment Workers Union, or any other labor organization, to bargain collec- tively 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 such activities, except to the extent that such right may be affected by a lawful agree- ment requiring membership in a labor organization 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 Beulah Rowden, Josephine Munoz, Mattie Clark, Winona Whalen, Lena Capello, Bernice Balmanski, Ann Senger, Maria Gutierrez, Gladys Saldana, and Henrietta DeLeon, immediate and full reinstatement to their former or substantially equivalent tices committed on December 8 and 12, 1949, and did not terminate the Respondent's continuing duty to bargain with the Union. See D. H. Holmes Company, Ltd. v. N. L. R. B., 179 F. 2d 876 ( C. A. 5), enforcing 81 NLRB 753 , as modified on other grounds. S We note, however, that in recommending that the discriminatees be offered employment, the Trial Examiner did not specifically require that the Respondent discharge, if necessary, any individuals who may have been hired to replace these employees . We find, in agree- ment with the Trial Examiner , that the discriminatees were unfair labor practice strikers. As such, they are entitled to reinstatement even if they were replaced ; we therefore modify the Trial Examiner 's recommended remedy so as to make it clear that the Re- spondent is required to discharge, if necessary to provide jobs for the discriminatees, any employees who may have been hired to replace the discriminatees. 850 DECISIONS OF NATIOIQAL LABOR RELATIONS BOARD positions without prejudice to their seniority or other rights and privileges., (b) Make whole said employees for any loss of pay suffered by reason of the descrimination, in the manner provided in the Inter-' mediate Report, making available to the Board or its agents, upon reasonable request, all pertinent records to facilitate the computation of back pay. (c) Upon request, bargain collectively with Dallas Joint Board, International Ladies Garment Workers Union, as the exclusive repre- sentative of 'all employees in the appropriate unit, and if understand- ing is reached, embody such understanding in a written signed agree- ment. (d) Post at their plant in Dallas, Texas, copies of the notice at- tached to the Intermediate Report and marked "Appendix A." 4 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent; be posted immediately upon receipt thereof and maintained for sixty • (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are. customarily posted. Reasonable' steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Sixteenth Region in writ- ing within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges of unfair labor practices filed on April 28, 1950, and February 27; 1951, by Dallas Joint Board, International Ladies Garment Workers Union, the Union herein, against Irving Lambert, Murray B. Lambert, and Seymour Lambert, d/b/a Sue-Ann Manufacturng Company, Dallas, Texas, Respondent herein, the General Counsel of the Board caused his complaint to be issued on July 24, 1951, alleging violations of Section 8 (a) (3), 8 (a) (1), and 8 (a) (5) of the National Labor Relations Act, 61 Stat. 161. ' With respect to the unfair labor practices, the complaint alleged, in sub- stance, that : (1) On or about December 8, 1949, and at stated times thereafter, the Respondent refused to bargain collectively with the Union, the exclusive 4 This notice, however, shall be, and it hereby is, amended by striking from line 3 thereof the words "The Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision and Order " Said notice is further amended by substituting for the first sentence of the last paragraph thereof the following "All our employees are free to become or remain members of the above-named Union or any other labor organiza- tion, or to refrain from such activity, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Amended Act" In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." SUE-ANN MANUFACTURING COMPANY - 851 representative of the Respondent's employees in an appropriate bargaining unit; (2) that as a consequence of these unfair labor practices and other pleaded violations of Section 8 (a) (1), the Respondent's employees went on strike on January 30, 1950; and (3) on or about February 27, 1951, certain named strikers' applied for reinstatement and were refused, for the reason that they had assisted or become members of the Union or,had participated in or refused to work during the strike. Copies of the complaint, the charges, and notice of hearing thereon were duly served upon the Respondent and the Urlion. Upon due notice a hearing was held at Dallas, Texas, from August 7 to August 10, 1951, before the-undersigned Trial Examiner. All parties appeared, were represented by counsel, partici- pated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant and material evidence, to engage in oral argument, and to file briefs and proposed findings. -Upon motion to conform the pleadings to the proof, they were so conformed without objection. Under date of August 27, 1951, the parties submitted a stipulation for the replacement of a lost exhibit, which stipulation has been approved and directed to be made apart of the record. A brief was received from the Union on September 10, 1951. ' The Motions to Dismiss and the Answer On August 12, 1951, the Respondent filed a written motion to dismiss the complaint and, contemporaneously, an answer denying the commission of unfair labor practices. The motion to dismiss was denied at the hearing with leave to renew. It was later largely renewed and was based on the following grounds : (1) The first ground is that the April 28, 1950, charge was dismissed by the Regional Director and could not thereafter be reinstated. This assertion, found not sustained, is based on the following two letters sent by the Regional Director to the Union in May 1950, with copies to the Respondent. Dallas Joint Board, Int'l. Ladies Garment Workers Union Attn : Miss Erple Reams Care of Mr. Charles J. Morris, Attorney Mullinax, Wells & Ball 1716 Jackson Dallas, Texas May 12, 1950. Re: Sue-Ann Manufacturing Company Case No. 16-CA-261 My dear Miss Reams : The above-captioned case charging a violation under Section 8 of the Naatonal Labor Relations Act as amended has been carefully considered. It does not appear that further proceedings are warranted inasmuch as your organization has failed to comply with Section 9 (f), (g), and (h) of the National Labor Relations Act as amended. I am, therefore, refusing to issue Complaint in this matter. Pursuant to the National Labor Relations Board Rules and Regulations, you may obtain a review of this action by filing a request for such review with the General Counsel of the National Labor Relations Board, Wash- 1 Beulah Rowden, Josephine Munoz, Mattie Clark, Winona Whalen, Lena Capello, Bernice Balmanski, Ann Senger, Maria Gutierrez, Gladys Saldana, and Henrietta DeLeon. (Ap- parent inaccuracies in the spelling of names have been corrected.) 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ington 25, D. C., and a copy with me. This request must contain a com- plete statement setting forth the facts and reasons upon which it is based. The request should be filed within ten (10) days from the date of receipt of this letter, except that the General Counsel may, upon good cause shown, grant special permission for a longer period within which to file. Sincerely, [s] Edwin A. Elliott, EDWIN A. ELLIOTT, Regional Director. cc: General Counsel National Labor Relations Board' Washington 25, D. C. Sue-Ann Mfg. Company Attn : Mr. Irving Lambert 805 South Ervay Dallas, Texas On May 29, 1950, however, the Regional Director sent the following letter to the Union, withdrawing his letter of May 12. Dallas Joint Board, Int'l. Ladies Garment Workers Union Attn : Miss Erple Reams c/o Charles J. Morris, Attorney Mullinax, Wells & Ball 1716 Jackson Dallas, Texas Re : Sue-Ann Manufacturing Company Case No. 16-CA-261 My dear Miss Reams : On May 12, 1950, we issued our letter of dismissal in the above matter because of non-compliance with Section 9 (f), (g) and (h) of the Labor Management Relations Act and advised of the ten day period in which appeal could be made under the terms of the Act. You are now further advised that within the ten day appeal period, the_ complaining union completed its compliance. We are, therefore, withdraw- ing our letter of dismissal and reinstating the case to our docket bearing the same docket number and our investigation will proceed. Sincerely, [s] Edwin A. Elliott, EDWIN A. ELLIOTT, Regional Director. cc : General Counsel NLRB, Washington, D. C. Sue-Ann Mfg. Company Attn : Mr. Irving Lambert 805 South Ervay Dallas, Texas The Board's records of compliance with Section 9 (f), (g), and (h) of the Act, disclose that although it had previously been in full compliance with the section, the charging Union ceased to be in compliance on December 31, 1948, and re- mained in that status until May 23, 1950, when it again came into full compliance. At all times since it has been, and it presently is, in compliance.2 2 The May 23 compliance date is not inconsistent with the statement in the Regional Director's May 29 letter to the effect that the Union achieved compliance within the 10-day appeal period. The May 12 letter, originating in Fort Worth, presumably was not received SUE-ANN MANUFACTURING COMPANY 853 The April 28, 1950, charge, the subject of the above letters, alleged a refusal to bargain and 8 (a) (1) violations. The later charge of February 27, 1951, restated those allegations and added an allegation of 8 (a) (3) violation assert- edly occurring on or about February 15, 1951. The grounds for my conclusion that the May 12, 1950, letter of the Regional Director does not require dismissal of the complaint are as follows : Despite the use of the word "dismissal" in his May 29 letter, I do not construe the Regional Director's letter of May 12 as constituting a final and irrevocable disposition of the 1950 charge. In the first place the May 12 letter purports to be merely a refusal to issue Complaint, and not a dismissal of the charge; a conclusion seemingly supported by the fact that the Regional Director followed the method set out in Section 102.19 of the Board's Rules and Regula- tions, Series 6, prescribing the procedure in case of refusal to issue complaint. Secondly, even if the May 12 letter is construed as disposing of the charge as well as the complaint, it was only tentative or proposed action, or at most action subject to a condition subsequent. The letter provided 10 days for appeal from the Regional Director's ruling. Necessarily the May 12 letter assumed that during the appeal period the charge remained, in existence as a jurisdictional basis for further proceedings. Otherwise the provision in the letter regarding the right of review is meaningless. During that 10-day period the Regional Director retained the authority, I believe, to withdraw the pro- posed action or to reverse it. I therefore find that, whether construed as a refusal to issue complaint or as a dismissal of the charge, the Regional Director's May 12 letter did not constitute final or conclusive action, but only tentative or proposed action. Whether, in a jurisdictional sense, a charge can ever be dismissed so effectively as to destroy its capacity to support further proceedings, it is unnecessary to determine.' In Dallas before the following day, and the 10-day period began to' run from the date of service, not mailing. In any event, service being by mail , 3 additional days are to be added to the appeal period. Section 102.86 of the Rules and Regulations provides, in part: Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after service of a notice of other paper upon him, and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period. . . . Compliance on May 23, 1950 , was thus well within the appeal period. 8 There is no apparent provision either in the Act or in the Board's Rules and Regula- tions for dismissal of a charge, but only provision for dismissal of a complaint. See, for example, Section 10 (c) of the statute : If upon the preponderance of the testimony taken the Board shall not be of the opinion that the person named in the complaint has engaged in or is engaging in any such unfair labor practice , then the Board shall state its findings of fact and shall issue an order dismissing the said complaint . ( Emphasis supplied.) And see Sections 102 9, 102.19, 102.27, 102.35 (h) of the Rules and Regulations. On the other hand, Section 101.6 of the Board's Statements of Procedure ( 12 F: R. 5651, 13 F. R. 4871, 14 F. R. 7250) provides that : - If [investigation revealing no merit in the charge] the complainant refuses to withdraw the charge . . . the regional director dismisses the charge. The regional director thereupon informs the parties of his action, together with a simple statement of the grounds therefor, and the complainant of his right of appeal to the general counsel in Washington within 10 days. If the complainant appeals to the general counsel, the entire file in the case is sent to Washington where the case is fully reviewed by the general counsel with the assistance of his staff. Following such review, the general counsel may sustain the regional director's dismissal , stating the grounds of his affirmance , or may direct the regional director to take further action. It is not immediately clear whether the word "dismisses" in the Statements of Procedure is used in a colloquial or a juridical sense. Even if it is the latter, however, the Regional Director's action, under the quoted section, is clearly not final or irrevocable during the 10-day appeal period; otherwise there would be nothing for the appeal to adjudicate. 998666-vol. 98-53-55 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thirdly, the dismissal of a charge by the Regional Director, is not-in the absence of hearing and adjudication upon the merits-res judicata of the issues raised in the dismissed charge. A later charge embodying similar allegations will support a complaint, Jersey City Welding cG Machine Works, Inc., 92 NLRB 510. In the instant case, the issues raised by the original charge were restated in the later charge of February 27, 1951, which also added the 8 (a) (3) allegation. In no event was the 8 (a) (3) allegation, which was timely filed, affected by the Regional Director's action in May 1950. As to the 8 (a) (1) and (5) allega- tions, the 1951 charge is sufficient to support the complaint, since it merely restated charges earlier and timely made. N. L. R. B. v. Kansas Milling Co., 185 F. 2d 413 (C. A. 10) ; and see N. L. R. B. v. Baltimore Transit Co., 140 F. 2d 51 (C. A. 4) : "An administrative agency, charged with the protection of the public interest, is certainly not precluded from taking appropriate action to that end because of mistaken action on its part in the past." (2) The Respondent's motion to dismiss also asserted as ground that the charges were not sworn to. Section 102.11 of the Rules and Regulations, how- ever, permit, alternatively, either swearing to the charge or "a declaration by the person signing it, under the penalties of the Criminal Code, that its contents are true and correct to the best of his knowledge and belief." The instant charges contain such a declaration. This contention of the Respondent's is therefore not sustained. (3) A further ground asserted in the motion to dismiss was that the 8 (a) (1) allegations particularized in the complaint were not set out in the charges, which merely generally charged 8 (a) (1) violations. A charge, however, is not a pleading, and a general assertion of interference therein will support a particu- larization of the conduct in the complaint. Morristown Knitting Mills, 80 NLRB 731, petition for enforcement withdrawn and dismissed by consent, 183 F. 2d 193 (C. A. 6) ; S. W. Evans and Son, 81 NLRB 161, 181 F. 2d 427 (C. A. 3) ; Shawnee Milling Co., 82 NLRB 1266, enforcement denied other grounds 184 F. 2d 57 (C. A. 10) ; Cedartown Knitting Mills, 84 NLRB 1, enforcement denied without opinion, 180 F. 2d 579 (C. A. 5) ; Kansas Milling Co., 185 F. 2d 413 (C. A. 10) ; Westece Boot d Shoe Co., 28 L. R. R. M. 2220 (C. A. 5) ; S. B. Wood, 95 NLRB 633. (4) The motion to dismiss further asserted that the Board is without juris- diction and barred from proceeding because the charging union was not in compliance at the time some of the alleged unfair labor practices occurred, and at the time the first charge was filed. The Board has held, however, that if a union is in compliance at the time of issuance of complaint, the latter may validly issue. Dant and Russell, 95 NLRB 252; Nina Dye Works, 95 NLRB 824. (5) Other grounds advanced in the written motion to dismiss are either dis- posed of by the above-stated principles, or set up factual issues. In its answer and in an oral motion to dismiss made at the hearing, the Re- spondent also asserted, inter alia, that the Union engaged in acts of intimidation, coercion, and boycotting in violation of Section 7, 8 (b) (1) and 8 (b) (4) of the Act. The Respondent offered to produce evidence in support of these contentions. No unfair labor practice charges were filed by the Respondent. The Trial Exam- iner stated, upon the authority of the following cases, Globe Wireless Ltd., 88 NLRB 1262, Cory Corporation, 84 NLRB 972, 979, and I. R., focltnote 5; and Western Express Co., 91 NLRB 340, that he would hold inadmissible evidence offered to establish violations of the Act on the part of the Union } In the Globe Wireless case, where the Trial E,caminer struck an asserted defense that the union had "restrained and coerced nonmembers and had attempted to cause the SUE-ANN MANUFACTURING COMPANY 855 Upon the entire record in the case, and from. observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Irving Lambert, Murray B. Lambert, and Seymour Lambert, copartners, do business under the trade name and style of Sue-Ann Manufacturing Company, under the laws of the State of Texas, having their principal office and place of business in the city of Dallas , Texas. At the said place of business the Re- spondent manufactures, sells, and distributes women's blouses and 'elated products. In the course and conduct of its business the Respondent annually causes materials valued at $75,000 to be purchased , delivered, and transported in interstate commerce from and through the States of the United States other than the State of Texas to its Dallas plant. The Respondent also annually causes products valued at $50,000 to be manufactured , sold, and distributed by it as a part of its business to be supplied, delivered, and transported in interstate commerce from its Dallas plant to and through the States of the United States other than the State of Texas. The Respondent asserts that the effect of its operations upon commerce is negligible, and that the Board should therefore decline jurisdiction. The Board, however, now uniformly asserts jurisdiction over enterprises which annually ship goods valued at $25,000, or more in-interstate commerce. In St&nislaus Implement and Hardware Conipany, 91 NLRB 618, the Board said: We find that the Employer is engaged in commerce within the meaning of the Act. Without considering the amount and character of the inflow, we further find, in view of the fact that the Employer' s annual shipment of goods to points outside the State amounted in value to more than $25,000, that it will effectuate the policies of the Act for this Board to assert jurisdic- tion. In future cases we will exercise jurisdiction over employers which annually ship goods valued at $25,000 or more out of a State. It is consequently found that the Respondent is engaged in, and that its ac- tivities affect, commerce, and that it will effectuate the policies of the Act to assert jurisdiction in the instant case. 11. THE ORGANIZATION INVOLVED Dallas Joint Board, International Ladies Garment Workers Union, is a labor organization affiliated with the American Federation of Labor and admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES From December 1944 to December 1, 1949, the Respondent, under continuous collective bargaining contracts, recognized and dealt with the Union as the ex- clusive bargaining representative of the Respondent's production employees. During that period of time the relations between the parties were amicable and harmonious. On December 1, 1949, th6 current collective bargaining contract expired. Thereafter, either in December 1949 or in January 1950 (the exact Respondent to discriminate in favor of" the union, the Board said : "Neither noncompliance nor misconduct on the part of the [union] constitutes any defense to the charges here." In the instant case the Union offered in evidence a copy of a purported order of the 101st Judicial District Court of Dallas County, Texas, denying an application by the Respondent for temporary injunction against asserted unlawful strike activities and picketing by the Union , the ground for the order being that the strike was not unlawfully conducted This evidence was likewise rejected 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time is determined hereinafter) the Respondent declined to negotiate another contract with or further to recognize the Union. There is dispute, resolved hereinafter, as to the reasons advanced by the Respondent for this refusal. On January 30, 1950, a minority of the Respondent's employees went on strike called by the Union and picketed for a contract, the remainder of the employees con- tinued to work. The strike continued until February 1951, at which time 10 strikers applied to the Respondent for reinstatement to their jobs, but received no response to their application. During the strike several written requests by the Union to bargain were also not acknowledged by the Respondent. ' This, in essence, is the outline of the dispute. More specific details and sub- sidiary occurrences are discussed later. The complaint alleges a -refusal to bargain on and after December 8, 1949, discriminatory refusal to reinstate the 10 strikers who applied in February 1951, and interference, restraint, and coercion by those and other acts later discussed. In addition to the procedural defenses adverted to previously, the defense on the merits is, in sum, that the Respondent was under no duty to bargain because' the Union did not represent a majority, that the strike was illegal, and-that for that reason, as well as because the em- ployees had quit their jobs, the strikers had no employee status, and there was consequently no obligation to reinstate them. We turn now to a discussion of the specific events. December 8, 1949: The Meeting of Reams and Lambert Irving Lambert, one of the three partners in the business, is the Respondent's production manager. In December 1949 Erple Reams was manager of the Dallas Joint Board and in charge for the Union of the administration of the bargaining contract with the Respondent. In that capacity she frequently met with Lambert. On December 8, 1949, Reams called on Lambert at his office. The occasion for this visit was the Respondent's arrearages in the payment of vacation pay due employees for the summer of 1949, and in the payment of con- tributions to a health fund ; both payments being required under the contract which expired on December 1. These arrearages, Lambert testified, were the consequence of the Respondent "not having finances to pay them." Also to have been discussed was an adjustment in piece rates for a forthcoming new style of garment. Reams testified that she did not know at that time that the contract had actually expired. Though the testimonial accounts of Reams and Lambert are not the same as to what was said at this meeting, there is no definite contradiction by either of the version of the other. Reams testified that Lambert said that there was no point in discussing mat- ters for the reason that the contract had expired and he would not negotiate another. Reams' testimony, in part, is as follows : * * * When I asked Irving-Mr. Lambert, about the holiday pay and the contribution to the health center, he said, "Erple, there is no use dis- cussing that because we don't have a contract." I said, "I don't think you feel so very good today. We will go out and have a cup of coffee and we will talk about it later" He said, "No, I am serious. We don't have a contract." I said, "So we will write another." He said, "No, I will not write another contract. I will not sign another one with the union." I realized he was serious. I asked him, "Haven't we had pleasant rela- tions? Have I not done the best I could to adjust all complaints fairly?" He said, "You have ; you have been a great deal of help." SUE-ANN MANUFACTURING COMPANY 857 I asked him why he,bad decided not to sign another agreement. He said, "Simply because I cannot afford to operate under a union agree- went any.loriger. The, vacation pay, the contribution to the health center and paid holidays, my profit will not allow it." And I said, "Well, if there's anything that we can do to help * * *." He said, "There is no point in discussing it, because there is nothing the union can do for me." I said, "I hope you realize what you are doing." He said, "I think I do:" I said, "I am afraid you will be sorry if you don't at least sit down and talk about the contract." He said, "There is no point in talking about it, because I have my mind made up. I am not going to sign another agreement with the union," and we went' to talking, I don't- remember the exact words, but I do know that after awhile when I saw that he was definite and he had said no about three times and very definite no, that he was serious, that I could do no more there. I I said, "Irving, you know what I have to do." He said, "Yes, you will go back to your office and call Pop," meaning Mr. Pearlstein, the [union] vice president. I said, "That's exactly what I will have to do." I said, "Irving, I hope you change your mind, and if you do, you know the office number, call me, I will be glad to come back and talk to you." He said, "I know the number, but I won't change my mind. I am not going to sign another agreement." We shook hands and said goodbye. Lambert's testimony as to what occurred at this meeting is as follows: A. We talked about the vacations and health benefits. I explained to Mrs. Reams our financial position at that, time, which she was sympathetic of, .and understanding, and I also, told her that the contract had run out and we were no longer working under a union contract. Q. When did you tell her it had run out? A. It run out the 1st of the month, and she said she would go back to the office and check her contract and see whether I was right or wrong. Q. Was that the substance of the conversation that took place at that time? A. Yes, sir. The Union Meeting of December 9 After her conversation with Lambert, Reams went into the shop and asked the Union's chairlady, or steward, to call a union meeting for the next day. The meeting was held at the union hall after work. Of the 36 production employees on the payroll during that week, 25 attended the meeting. Reams informed the employees that the contract had expired, and that Lambert had refused to negotiate another. The employees unanimously voted to strike to secure a contract. Reams advised them, in effect, that she thought that the issue could be worked out amicably, and she asked the employees to take no action until they had heard from her 5 The Employee Meeting of December 12 Three days later, on December 12, 1949, the employees were assembled in the plant at the call of Floorlady Velma Rosenbalm, and addressed by Production 41 6 The findings as to the union meeting of December 9 are based on the uncontradicted testimony of Reams and Chairlady Winona Whalen. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manager Irving Lambert. Chairlady Whalen's testimony as to what Lambert said on this occasion is uncontradicted. Lambert stated that he supposed that Reams had already told them that the contract had expired. He said that he would not sign a new contract with the Union ; that, although he was a "union man," he could no longer "afford to operate under a Union contract." He as- sured them, however, that with the exception of the health benefits, which would be given up, conditions would be much the same as before; and that the 40-cent weekly union dues would be the equivalentAof-three of the -five paid holida-fs pro- bided under the contract. He further indicated his belief that employees should have a paid vacation "if be had the money," but that payment of it " might be late." In addition Lambert told the employees that he did not "want any Union talk going on in the shop." There had been no prior restriction on union talk. The contract had provided that piece rates should be the subject of agreement between the Employer and a committee. of three employees, the employee repre- sentatives being elected by the employees. At the December 12 meeting, Lam- bert announced that he was appointing a price committee. At least two of the employees appointed, however, refused to serve on the committee. Discussions with the union price committee ceased thereafter and piece rates since that date have presumably been unilaterally set by the Respondent. Nothing further occurred until about the second week of January 1950. The uncontradicted testimony of Production Manager Lambert is that during that week some 18-to,,20 employees told'him that they did-not wish> to work under a union- contract.- Some of these- statements were elicited by inquiries made by Lambert, on his own initiative, of individual employees as to whether they wanted a union contract. Some of the 18 or 20, Lambert testified, came to him and volun- teered the information ; as to the remainder Lambert could not remember who initiated the -discussion. He spoke, however, only to employees who remained at work when the strike started later in the month . There were no such con- versations with those who subsequently went on strike, or with two employees who ceased to be employed after the week of January 15. Lambert's testimony as to his responses is that he told several of the 18 or 20 that if a majority did not want a union contract, the Respondent would not sign one. The January ir6, 1950, Telephone Conversation On January 26, 1950, Erple,Reams telephoned Irving lambert and asked to see him on the following day to discuss a new- contract. Reams' testimony,as to this telephone conversation is as follows : I called Irving and asked for an appointment to come down and discuss a new contract with him on the 26th, and he informed me at that time that it would do me no good to come down, because he had not changed his mind, that he still had no intention of signing another agreement, and I told him I thought we should sit down and talk about it, we couldn't dis- cuss it over the phone, and he said, "The door is always open to you, you can come in' if you like, but my mind is made up." I said, "Then let me come down and talk to you anyway." He said, "All right." Lambert's version of this telephone conversation is substantially the same as Reams' ; except that he added, according to his testimony, that the Union did not represent a, majority, and .there was, -therefore, no need for -any discussion. -An appointment was then arranged for 10 a. m. the next day, September 27. SUE-ANN MANUFACTURING COMPANI 859 The January 26 Meeting of Employees Shortly after noon of the day of the telephone conversation, September 26, and during working hours, Chairlady Whalen passed around a notice among the employees in the plant, informing them that a union meeting would be held that night. In this she was observed by Irving Lambert. At about 2: 45 p . M. that afteihoon' the power was unexpectedly shut off and the employees were ad- dressed by lambert. Both Chairlady Whalen and Production Manager Lambert testified as to this meeting. Whalen's version is substantially that Lambert said that he knew that a union meeting had been called, but that the employees did not have to attend; that there were some girls in the shop that he was not going to tolerate ; and (looking directly at Whalen) anyone seen with union literature in the shop would be fired ; that Pearlstein , the "stinking" union official had been in town and had not even contacted him (Lambert). Lambert denied saying that anyone seen with union literature in the shop would be fired ; with reference to union literature , he testified , he merely said that he did not want it to be passed out in the shop. Lambert's account of his statements is as follows : There was a lot of agitation going on in the shop, and I had heard about this meeting, and I told my girls it didn't make any difference to me whether they belonged to the union or not, the majority of them didn 't want a union contract, we weren't renewing the contract, and they could act as they pleased, but I didn't want any disturbance inside the shop, I wanted them to do their work as they were paid to perform and to leave their outside activities on the outside. No other witnesses testified concerning this occurrence. Except for the ques- tion as to whether Lambert stated that employees would be fired if seen with union literature in the shop , there is no direct denial by either Whalen or Lam- bert of the account given by the other . Findings as to the incident are made hereinafter. The Union Meeting of January 26 The union meeting was held after work that day. At this meeting a committee of three employees to negotiate a contract was selected to attend the meeting with Lambert scheduled for the following day. One of the members of this committee was Moralee Greenleaf, who had told Lambert during the preceding fortnight, according to his testimony , that she did not wish a union contract. Greenleaf did not join the subsequent strike. The January 27 Meeting Between Reams and Lambert On the following morning, January 27, 1950 , Reams, accompanied by Carl Brenner, another union representative , met with Production Manager Lambert. Reams and Lambert testified concerning this meeting. Reams' testimony is as follows : I told him, "Irving, you know I am here to talk about a contract." Arid he'said, "Yes, but it won't do you any good to talk, there is nothing to talk about." And I told him that a committee had been elected the night before at a union meeting to sit in on the negotiations and would he please call [them]. He refused . He said no , there was no point in calling the committee in 1 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because he had no intention of discussing a contract with me, and I told him that I thought he was making a mistake, and asked him if he was ready to take the consequences if he didn't sign a contract, and he said yes, that he would probably be sorry for, his action, but he had to do it. Q. He didn't elaborate on why he had to do it? A. No, he just said he had to do it, and he probably would be sorry, and he expected trouble from the union, but that's what it had to be, and we parted friends, and that was it. Lambert was at first uncertain in his testimony as to whether the conversation occurred in December or January, and as to its relation in time to the strike, but his version as to its substance is as follows : A. I told Mrs. Reams that we weren't renewing the contract because the majority of the shop didn't want to work under a union contract, they weren't paying their dues and didn't feel like they even belonged to, a union. m s s s a She said I was making a mistake, making a bad mistake, although we had always remained friends she was going to fight me as hard as she pos- sibly could. I told her that was her privilege and my privilege to try to fight back if possible. We parted good friends but, reached no agreement. The Strike January 27, 1950, was a, Friday. On the following Monday morning, January 30, the Union went on strike for a contract, and established a picket, line in front of the plant. Of the 33 production workers employed in the weeks of January 25 and February 1, 14 joined the strike. The rest remained at work. • The picket line was maintained until October 26, 1950, when it was withdrawn. From July to October it operated on only a part-time basis. On the, day the strike started, Clyde Vaughn, examiner for the Texas Em- ployment Commission, had a, telephone conversation with Murray Lambert, one of the partners, in the course of his official duties. In response to Vaughn's in- quiries as to the nature of the dispute, Lambert told Vaughn that his contract with the Union had expired and that he (Lambert) "hadn't seen fit to try to negotiate a new contract." Vaughn's testimony is that Lambert stated : That a union representative came to his -office early in January, [sic] and that he called to that representative's attention the fact 'that they no longer had an agreement, the agreement had expired, and he also told the repre- sentative that they had decided that they thought they could get along better without an agreement. m s x s * r • [Lambert also] said that later Mrs. Erple Reams came to his office and proposed that they go into negotiations on the renewal of the contract or of the new contract, and that he advised her that they had decided they didn't want to work under union agreement again. Vaughn's testimony was undenied. In April 1950 the Respondent, joined by all or apparently all the employees then working, unsuccessfully sought to secure a temporary injunction in the Texas courts against the picketing and other asserted acts by the Union which the Respondent claimed to be unlawful. @n May 12, 1950, Reams, on behalf of the Union, sent the Respondent a tele- gram offering to meet at any time for the negotiation of a contract and suggesting a date and place for meeting. The Respondent did not reply to this telegram. SUE-ANN MANUFACTURING. COMPANY 861 ,On May 24, 1950, union counsel rent the Respondent a letter reiterating, its request for a bargaining conference and again suggesting a specific date and place for meeting. The Respondent did not reply to this communication. The Request for' Reinstatement' On February 15, 1951, the following letter , signed by the individuals named in the complaint as having been discriminatorily refused reinstatement, was sent to and received by the Respondent:, Sue-Ann Manufacturing Company 805 South Ervay Street Dallas, Texas Attn : Mr. Irving Lambert Gentlemen : This is to inform you that we the undersigned employees of Sue-Ann Manufacturing Company have called off our strike, and each of us wishes to • be returned to our old jobs without condition. We are each ready and willing to return to work , and hereby make this application for reinstatement. Please consider this a continuing offer in the event it is not immediately accepted. Please inform us in writing of the time and manner in which you wish us to report for work. We would appreciate a reply at your earliest . convenience. The Respondent did not reply to this communication. Though the Respond- ent's answer alleges that the Respondent was under no obligation to reinstate the strikers for the reason: that they had quit their jobs, there is no evidence or suggestion as to the Respondent's reasons for not responding to the February 1951 letter. Between February 14, 1951 , and the date of hearing the Respondent hired, two new production employees ; six persons having their employment terminated during the same period. Of the two new-employees; one, who was hired- on April 6, 1951, was an operator-the same employment classification as the strikers who applied for reinstatement . She worked less than a week and was then terminated • as unsatisfactory. The other new employee was a special machine operator. Production Manager Lambert's undenied testimony is that an operator would require additional training before being qualified to fill a position, as special operator. Conclusions 1. The appropriate unit The' complaint alleged, and the answer admitted , that all production and maintenance employees of the Respondent, exclusive of office supervisors in- cluding floorlady, porter, designer, and shipping clerk, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 of the Act. At the hearing, however,- the General Counsel amended the complaint to delete the words "and maintenance" from the unit alleged in the complaint , for the stated reason that only the porter was a maintenance employee , and the desig- nation "maintenance" consequently misleading. The Respondent declined to concede the appropriateness of the amended unit. The evidence is that the porter is the only maintenance employee, and that the Union has never been recognized as the representative of, or attempted to bargain 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for, other than production employees . The designer and the shipping clerk are not production employees. There thus being no substantial variation between the pleaded and the amended unit, it is found that all production employees of the Respondent, exclusive of office supervisors, floorladies, porter, designer, and shipping clerk, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 of the Act. 2. The Union's majority As has been seen, the Union was the recognized and contractual representative of the Respondent's employees from 1944 to December 1949. There is no evi- dence to indicate any disaffection or dissatisfaction on the part of the employees with respect to that representation through December 1949. In"fact, the affirma- tive evidence is that on December 7, 1949, out of 36 employees in the appropriate unit, 25 were union members and 2 others (Swann and Philips) had signed bar- gaining authorizations or membership applications on December 1, 1949. There were no additions to or resignations from union membership in December 1949, or January 1950. Under the union constitution, dues delinquents lose their good standing (deprivation of certain benefits) after 13 weeks of dues arrearages ; but nevertheless continue to retain their union membership for a further period of 26 weeks before losing it because of delinquency. As of the first week in December 1949, none of the 25 union members were delinquent 13 weeks in the payment of union dues ; only 5 were delinquent at all, and of these 5 none was more than 7 weeks in arrears: In addition , 25 of the 36 employees in the appropriate unit attended the union meeting on December 9, 1949, and voted to strike if the Respondent would not renew the contract or negotiate a new one. On the basis of these facts it is found that on December 8, 1949, the Union was the exclusive collective bargaining representative of the employees in the appropriate unit within the meaning of.the Act. 3. The refusal to bargain There is no evidence or suggestion that the Respondent doubted , questioned, or contested the Union's majority at the time of the December 8, 1949 , meeting between Reams and Lambert. The Respondent's assertion, in fact, is that it did not refuse to negotiate with the Union on that date. If, therefore; there was in fact a refusal to negotiate on December 8, 1949, it constituted a refusal to bargain in violation of Section 8 (a) (5) of the Statute. Since the Union was in compliance with Section 9 (f), (g), and ( h) of the Act on the date the complaint was issued, July 24, 1951, the fact of noncompliance on December 8, 1949, not being then urged, would not now be a defense. New Jersey Carpet-`Mills, Inc., 92 NLRB 604; West Texas Utilities Co. v. N. L. R. B., 184 F. 2d 233; Dant & Russell, 95 NLRB 252; cf. Andrews Company, 87 NLRB 379. And if there was such a refusal to bargain, any disaffection or loss of designa- tion or majority thereafter is to be attributed to the unfair labor practices, and the Respondent's-duty to continue to treat with the Union unconditionally as the exclusive bargaining representative not affected. The admitted refusal to nego- tiate on January 27, 1950, and failure to acknowledge the May 1950, requests to bargain would then also constitute refusals to bargain. In addition, under such circumstances, the strike being caused by unfair labor practices, striking employees could not be displaced by the hiring of replacements and, absent asser- tion of justifiable motive or ground for refusal of reinstatement=of which SUE-ANN MANUFACTURING COMPANY 863 there is none here-would have been entitled to be restored to their jobs upon unconditional request. On the other hand, if there were no prior unlawful refusal to negotiate, or other unfair labor practices likely to affect the Union's majority, Lambert's refusal or failure to bargain in January 1950, and thereafter, if based upon genuine, good-faith doubt as to the Union's majority status would be a complete defense. It would then be necessary to determine the significance on union status of any assertions to Lambert in January 1950, by employees to the effect that they did not desire to work under a, union contract. The case therefore tarns, in my judgment, on.whetherLainber`t stated tt5`fteams on, December 8, 1949, that be would not negotiate, another contract with the Union. In determining whether there were unfair labor practices, the amicable state of dealing existing from 1944 must be, and has been here, considered. Prior history of good union relations is itself evidence to the credit of the Respondent in weighing the substantiality of the proof. As has been noted, the respective accounts of Reams and Lambert as to their December 8, 1949, meeting, though not directly contradictory, give quite different pictures as to what was said. If Reams' version is more reflective of the actual facts, there was a definite refusal to bargain by Lambert; If Lambert's recital is the,more likely, there was' not. So far as appraisals while on "the witness stand are concerned, there was little to choose between the two witnesses; each gave the impression of apparent trustworthiness and personal probity. A reso- lution as to the actual statements will therefore have to be made from extrinsic and circumstantial factors. Reams was definite, precise, and positive as to the statements she attributed to Lambert as of December 8, and her testimony was not shaken on cross- examination. If Reams' version is not correct, she was deliberately perjuring herself. She could not possibly have been honestly mistaken in relating so detailed a story. But her demeanor appeared to me to be inconsistent with any judgment that she was knowingly testifying falsely. On the other hand, the hypothesis that Reams' account is fact, does not involve any assumption that Lambert was perjuring. Either Lambert's recollection or his narration may have been incomplete. Thus, it is significant in this respect that, although Lambert testified after Reams, he did not specifically deny any of the damaging assertions which she had attributed to him : an omission not consistent with the notion that he was testifying falsely ; nor, in view of the importance of what Reams had said, with the conclusion that his failure to contradict her was other than advertent. Other factors in =the evidence tend to support Reams' account. Thus, 3-days later, on December 12, Lambert told the employees that he would not sign another contract with the Union because he "could not operate under a union contract." His other statements to the employees at the December 12 meeting, outlining the conditions under which they would thereafter work, necessarily assumed the termination of relations with the Union. The unilateral appoint- ment of an employee price committee at that time is further indication that the break had already been made. Indicative of the same conclusion is the undenied testimony of Clyde Vaughn, of the Texas Employment Commission, recited heretofore, to the effect that on January 30, 1950, Murray Lambert stated to him that he had told Reams that the Respondent had decided that it "could get along better' without an agreement.",,' Lambert. did not make any reference in that conversation, Vaughn testified, to the Union's having lost its majority or 864 DECISIONS OF 'NATIONAL 'LABOR RELATIONS BOARD not"representing the employees. The fact that the Respondent bas' admittedly experiencing financial difficulty, at the time, that on December'9; the employees voted to strike tb secure an agreement, 'that the December 8, conference of Reams and Lambert broke up without discussion of the matters which had brought Reams to Lambert's office ; and the further fact that there were no meetings between the Union and the Respondent from December 8, to January 27, are all supportive only of the conclusion that on December 8, Lambert told Reams with finality that the'Respondent would not negotiate another contract. Upon the basis of the above considerations, I conclude that Reams' account of her December 8, 1949; conference with Lambert should be, and it is, credited. It is therefore found that on December 8, 1949, the Respondent refused to bargain collectively with the Union, the exclusive representative of employees in the appropriate unit, in violation Of Section 8 (a) (5) of the Act, thereby interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act. Again, in the meeting of employees on December 12, 1949, Lambert reiterated the Respondent's refusal to bargain, announced unilateral changes in terms and conditions of employment, and the appointment of a price committee, without consultation with the Union, and forbade union discussion in the shop. These acts also constituted refusals to bargain, and interference, restraint, and coercion. For the reasons adverted to heretofore, any defections from the Union there- after are, under the existing circumstances, attributable to the unfair labor practices, and did not terminate the -Respondent's' continuing duty to bargain with the Union. It is conceded that Lambert refused to negotiate on January 27, 1950. His testimony is that he made substantially the same statement at the meeting of employees on January 26; and the Respondent failed to answer the -Union's bargaining requests in May 1950. These acts also constituted refusals to bargain and interference, restraint, and coercion. • 'I do not find anything else in the January 26, meeting of employees, however, violative of the Act. Lambert's injunction against the distribution of union literature had reference only to the plant. Such a prohibition I find legal. The strike of January 30, 1950, a primary strike against the Respondent for recognition, was a consequence of the unfair labor practices, and therefore an unfair' labor practice strike. ' It' was not an illegal strike, as the Repondent asserts; because the Union was not certified nor would it have been under the existing circumstances even if the Union had not been the majority -represent- ative.' The legislative history of the statute makes it clear 'that a • primary strike for recognition by an uncertified or even minority union is legal ; except insofar as prohibited by sections not here applicable, such as Section 8 (b) (4) (C). Perry Norvell Company, 80 NLRB 225, 238-41. 4. The refusal to reinstate As has been seen, the Respondent did not answer the written request for reinstatement made on February 15, 1951, nor have those employees been rein- stated ; though at least one new employee in the same employment classification was hired by the Respondent after the application. The employees went on strike because of the unlawful refusal to bargain. They were therefore unfair labor practice strikers and entitled to be reinstated unless rejected for justifiable ground. But no reason is ascribed, either in evidence or argument, for the Respondent's failure to reinstate the applying strikers or to acknowledge their application. Under such circumstances, the only conclusion that can be drawn is SUE-ANN 1MANTTFACiURING COMPANY 865 that the Respondent refused to consider reinstating the employees because of their union and concerted,: activities . and. because they ,had gone on strike. It is therefore found that the Respondent refused, _on,, and after February 15,.1951, to reinstate Beulah Rowden, Jiosephine Munoz, Mattie,Clark, Winona Whalen, Lena Capello, Bernice Balmanski, Ann Senger, Maria Gutierrez, Gladys Saldana, and Henrietta DeLeon, because they had assisted the Union, and because they had gone on strike; thereby discouraging union membership and concerted activity by discrimination in hire and tenure of employment, and interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR, PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening, and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease ,and desist therefrom and take-certain affirma- tive action designed to effectuate the-policies of the Act. It having been found that the Respondent discriminatorily refused reinstate- ment to the employees heretofore, named, it will be, recommended, that the Re- spondent offer each of the said employees immediate, and full reinstatement to his former or substantially, equivalent position without prejudice to his seniority or other rights or,priyileges. It will be further recommended that the Respondent make each of said employees whole for any loss of pay he may have suffered by reason of the , discrimination,by payment of a sum equal to that which he would have earned as wages from February 15, 1951, to the date of the Respondent's offer of reinstatement, less net earnings during that period. Exact computations shall be in ; accordance with the Board's usual policies. See Chase National Bank, 65 NLRB 827; F. W. Woolworth Co., 90 NLRB 289; Crossett Lumber Company, 8 NLRB 440. It will also be recommended that, on reasonable request, the Respondent, make all pertinent records available to. the Board and its agents. It will be further recommended that the Respondent, upon request, bargain collectively with the Union, and cease and desist -interfering with, restraining, or coercing employees in the exercise of rights guaranteed by the Act. Upon the foregoing findings of fact and upon the entire record in the case, I make the following : CONCLUSIONS OF LAw 1. Dallas Joint Board, International Ladies Garment Workers Union, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in the hire and tenure of employment of the employees named'above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. All production employees of the Respondent, exclusive of office supervisors, fioorladies, porter, designer, and shipping clerk constitute a unit appropriate for the purposes of collective bargaining. 866 DECISIONS Ob" NATIONAL LABOR RELATIONS BOARD 4. Dallas Joint Board, International Ladies Garment Workers Union, was on December 8, 1949, and at all times thereafter has been, the exclusive representa- tive of the employees in the appropriate unit for purposes of collective bargaining. 5. By refusing on December 8, 1949, and thereafter, to bargain collectively with Dallas Joint Board, International Ladies Garment Workers Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. The strike of January 30, 1950, was caused by the Respondent's unfair labor practices.` 7. By interfering with, restraining, and coercing its employees in the exercise of 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. & The aforesaid unfair labor practices are unfair labor practices affecting commerce within.the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relatioi Board, and ib, - order ao effectuate the policies of the, National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interfere with, restrain, or coerce our employees in the exer- cise of their right to self-organization, to form labor organizations, to join or assist DALLAS JOINT BOARD, INTERNATIONAL LADIES GARMENT WORKERS UNION, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL upon request bargain collectively with DALLAS JOINT BOARD, IN- TE$NATIONAL L,0Ixs GARMENT' Wo*KVRS`UNIo1, as' the exclusive'-representa- tive of all our' productiAn employees, exclusive of office supervisors, floor- ladies, porter, designer, and shipping clerk, with respect to rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. WE WILL NOT discourage membership in DALLAS JOINT BOARD, INTERNA- TIONAL LADIES GARMENT WORKERS UNION, or in any other labor organization of our employees, by discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL offer the following named employees immediate and full rein- statement to their former, or substantially equivalent positions without -prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered by them as a result of ,the discrimination : KATZ DRUG COMPANY 867 Beulah Rowden Josephine Munoz Mattie Clark Winona Whalen Lena Capello Bernice Balmanski Ann Senger Maria Gutierrez Gladys Saldana Henrietta DeLeon All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate against any employee because of membership in or activity on behalf of any such labor organization. IRvING LAMBERT , MURRAY B. LAMBERT, SEYMOUR LAMBERT, D/B/A SUE-ANN MANUFACTURING COMPANY Employer. By ----------------------------------------- (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced , or covered by any other material. KATZ DRUG COMPANY and WAREHOUSE AND DISTRIBUTION WORKERS, LOCAL 688, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL. Case No. 14-CA85. March 28, 19b°9 Decision and Order On September 6, 1951, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practice alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report. Both, the General Counsel and the Re- spondent filed briefs. 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 Trial Examiner's findings of fact and finds merit to the exceptions to his conclusions and recommendations to the extent indicated in this Decision and Order. 98 NLRB No. 140