Custom Underwear Manufacturing Co.

CUSTOM UNDERWEAR MANUFACTURING COMPANY 117 latter were sufficient in number to affect the results of the election. On July 3, 1953, he issued a report on objections and challenged ballots, in which he recommended that the objec- tions be overruled, that the challenge to the ballot of Mary Alice Robinson be overruled, that the challenge to the ballot of Sylvia Levine be sustained, and that a determination of the validity of the ballots of Lillian Henry and Alice Mae Smith be postponed until the Board should decide in an unfair labor practice proceeding then pending (Case No. 32-CA-312) whether these individuals were discriminatorily discharged. The Em- ployer filed timely exceptions to the Regional Director's report. On December 2, 1953, Trial Examiner Sidney L. Feiler issued an Intermediate Report in which he found that Henry and Smith had been discriminatorily discharged. The Employer has not filed exceptions to the said Intermediate Report within the time required therefor and has complied with its recommenda- tions. The Board has considered the Regional Director's report, the Employer's exceptions thereto, the Trial Examiner's In- termediate Report in Case No. 32-CA-312, and the entire record in the case. For the reasons stated by the Regional Director in his report, the Board hereby overrules the Employer's objections, sustains the challenge to the ballot of Sylvia Levine, and overrules that to the ballot of Mary Alice Robinson. As the Respondent has not excepted to the Trial Examiner's Inter- mediate Report in Case No. 32-CA-312 and has complied with its recommendations, we find that Lillian Henry and Alice Mae Smith were eligible to vote in the election and overrule the challenges to their ballots. We shall direct that the ballots of Robinson, Smith, and Henry be opened and counted. [The Board directed that the Regional Director for the Fifteenth Region shall, within ten (10) days from the date of this direction, open and count these ballots and serve upon the parties a supplemental tally of ballots.] Member Beeson took no part in the consideration of the above Supplemental Decision and Direction. CUSTOM UNDERWEAR MANUFACTURING COMPANY and FLORENCE H. MILLER INTERNATIONAL LADIES' GARMENT WORKERS' UNION, A. F. L. and FLORENCE H. MILLER. Cases Nos. 4-CA- 867 and 4-CB-174. March 31, 1954 DECISION AND ORDER On October 27, 1953, Trial Examiner Louis Plost issued his Intermediate Report in the above-entitled consolidated pro- 108 NLRB No. 24. 1 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceeding, 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 ex- ceptions to the Intermediate Report and a supporting brief. Each of the Respondents filed its separate brief in support of the Trial Examiner's recommendations. 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 Intermediate Report, the exceptions and briefs, and the entire record in this case , and hereby adopts the findings , conclusions , and recommendations of the Trial Examiner only insofar as they are consistent with this Decision and Order. 1. THE UNFAIR LABOR PRACTICES The consolidated complaint herein alleges , in substance, that the Respondent Union, through its agent , Robert Mickus, by threat of strike caused the Respondent Company to dis- charge Florence H. Miller because Miller refused to pay a Union imposed fine; that by such action and threats of strike the Union violated Section 8 (b) 2 and Section 8 (b) (1) (A) of the Act ; and that by discharging Miller because she failed to pay the fine the Respondent Company violated Section 8 (a) ( 1) and ( 3) of the Act. The Trial Examiner found , contrary to the allegations of the complaint , that Miller was not discharged at the behest of the Respondent Union for her failure to pay the fine but rather that Miller voluntarily quit her employment . In arriving at this conclusion , the Trial Examiner specifically credited the Respondent ' s witnesses and discredited Miller whose testimony supported the complaint . The General Counsel contends , in his exceptions , that in making these credibility findings the Trial Examiner made no mention of , and apparent- ly ignored , the testimony of the only informed, credible, and disinterested witness who testified at the hearing , and that had this testimony been given proper consideration , Miller's testimony would have been credited and the complaint sus- tained. Upon reexamination of the entire record in this case and after giving full consideration to all of the evidence contained therein, we find merit in the General Counsel ' s exceptions for the reasons hereinafter set forth. As related in the Intermediate Report, all parties agreed that on February 26, 1953, Miller was called from the shop of the Respondent Company' s plant to the office of Seymour Horowitz, the plant manager and a partner of the Respondent Company. Present were Mickus, the Respondent Union's business agent, Osborne, the shop unit chairlady , and Horowitz . An urgument ensued over Miller's failure to pay a $ 1 union fine. At the CUSTOM UNDERWEAR MANUFACTURING COMPANY 119 hearing, Miller testified in substance that in the course of the argument Mickus told her that unless she paid the fine as imposed by the majority of the employees in the shop unit she could no longer work for the Respondent Company. After stating that she believed the fine to have been discriminatorily imposed upon her, Miller then testified that she left the office and shop to return to her home until it was finally decided whether she would have to pay the fine. Mickus, Osborne, and Horowitz all testified to the effect that Miller, in the heat of the argument over the fine, declared she was quitting her employment rather than pay the fine. They also denied that either Mickus, or any one of the three persons present, threatened Miller with the loss of her job is she refused to pay the fine. The Trial Examiner credited the version of Mickus, Osborne, and Horowitz, all of whom, like Miller, were interested witnesses. All of the parties likewise agree that later in the afternoon of the same day Horowitz called Miller at her home on the telephone. Miller's testimony as to this conversation was that Horowitz explained that she could no longer work for the Respondent Company because the Union would not allow her in the mill, not even on the night shift which was not unionized. Horowitz testified that he had called Miller merely to tell her that he was sorry that she had quit and to ask her to stop up to see him. The Trial Examiner, though admitting the Horowitz' version of the foregoing conversation appeared to be "lame," nevertheless credited Horowitz and rejected Miller's testimony. Had no other witness appeared, or had there been no testimony other than that related by the Trial Examiner, we would, out of regard for the Examiner's findings, leave them undisturbed.' However, we believe that in this case the Trial Examiner, in omitting from his consideration the testi- mony of Rothenberger, an employee of the Pennsylvania Bureau of Employment Security, made findings which were contrary to the clear preponderance of all of the relevant evidence. Rothenberger testified that Miller had made application for unemployment compensation on March 19, 1953, and that the claim was assigned to him for investigation. Pursuant to his assigned duties, Rothenberger telephoned the Respondent Company's plant on March 26, 1953, and asked to speak to Horowitz. The person who finally came to the phone, admittedly Horowitz, 2 stated upon inquiry, according to Rothenberger, that Miller was discharged because the Respondent Company had no other choice inasmuch as failure to lay Miller off would have resulted in the Union's calling a strike. On the other 'Standard Dry Wall Products, Inc., 91 NLRB 544, 545, enf. 188 F. 2d. 363 (C. A 3); Victor Metal Products Corp., 106 NLRB 1361. 2 Although Horowitz could not remember the name of the caller, he testified that he did speak with someone from the Bureau. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hand, Horowitz gave a different and innocuous version of his conversation with the Bureau employee stating that the latter called merely to confirm Miller's statement to the Bureau that she had quit her job rather than pay the Union fine. Under the circumstances, the fact that Rothenberger was a completely disinterested witness and Horowitz was not, we find that Rothenberger's version of the telephone conversation is the credible one.3 This being so, Horowitz' admission to Rothenberger that he discharged Miller because the Respondent Union threatened a strike is likewise a valid declaration by a partner against the interest of the Respondent Company which, we find, establishes the fact. Rothenberger's credited testimony as to Horowitz' admission closely parallels and is corroborative of Miller's testimony that in her telephone conversation with Horowitz he stated in effect that he had to discharge her because the Union would not allow her to work in the plant. Therefore, we are per- suaded that Miller's version of her telephone conversation with Horowitz is accurate and it is hereby credited. According- ly, we find that Miller was unlawfully discharged by Horowitz, the Respondent Company's plant manager and partner, on the afternoon of February 26, 1953, because she refused to pay the Union imposed fine and that by this action the Respondent Company discriminated against Miller with regard to the tenure of her employment thereby violating Section 8 (a) (3) and (1) of the Act. While Horowitz' admission as to the reason why he discharged Miller is not binding upon the Respondent Union, the record affords an independent basis for finding that the union un- lawfully caused Miller's discharge. Admittedly, Miller was called from her work to Horowitz' office on the morning of February 26 for the specific purpose of inducing her to pay the fine. Miller testified that in the ensuing argument, after she repeatedly stated her refusal to pay the fine, Mickus, in the presence of Horowitz, finally threatened, "You don't work here if you don't pay this fine.' '4 This threat has special significance in light of our prior finding that Miller was discharged and did not quit and Horowitz' admission that Miller was a valued and proficient employee. Under these circumstances, we are persuaded that the Respondent Union caused the Respondent Company to discharge Miller because of her refusal to pay the fine and that by thus causing Miller's discharge and discriminating against her with respect to the tenure of her employment the Respondent Union violated Section 8 (b) (2) and 8 (1) (A) of the Act. 3 We find this to be true even if Rothenberger's oral testimony is incapable of admission as a proper present recollection. In such event, the record of the conversation which Rothen- berger made as a part of his report of the investigation becomes admissible as proper past recollection recorded. See 3 Wigmore, Evidence, Section 725 et seq (3rd Ed.). 4Having credited Miller's testimony with respect to Horowitz' telephone conversation with her, we find, contrary to the Trial Examiner, that her version of the meeting in Horowitz' office is credible. CUSTOM UNDERWEAR MANUFACTURING COMPANY 121 II. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondents set forth in section I, above , occurring in connection with the operations of the Respondent Company described in section I of the Inter- mediate Report herein , have a close , intimate , and sub- stantial relation to trade , traffic , and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of com- merce. III. THE REMEDY Having found that the Respondents have engaged in unfair labor practices , we shall order them to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since it has been found that the Respondent Company has discharged and refused to reinstate Florence H. Miller at the behest and insistence of the Respondent Union by reason of the failure of said Florence H. Miller to pay a union imposed fine, we will order the Respondent Company to offer full reinstatement to Florence H. Miller to her former or substantially equivalent position without prejudice to her seniority or other rights and privileges , and we shall further order that the Respondents jointly and severally make whole the said Florence H. Miller for any loss of pay she may have suffered as a result of the discrimination against her. Such back pay shall begin on February 26, 1953 , and continue to the date of her reinstatement, or the date on which reinstatement is offered to her, except that, in accordance with our practice , the period from the date of the Intermediate Report to the date of the Order herein will be excluded in computing the amount of back pay to which Miller is entitled from the Respondents , because of the Trial Examiner's recommendation that the complaint be dismissed. Consistent with the policy of the Board enunciated in F. W. Woolworth Co., 6 it will be ordered that loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the appropriate backpay period. The quarterly periods 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 Miller would normally have earned for each quarter or portion thereof , her net earnings , if any , in other employment during that period. The Regional Director is hereby directed to take all reasonable measures to assure that the backpay liability is borne equally by Respondent Company on the one hand and Respondent Union on the other. 5 90 NLRB 289. 12Z DECISIONS OF NATIONAL LABOR RELATIONS BOARD It will be ordered further that the Respondent Union notify the Respondent Custom Underwear Company , in writing, that it has no objection to the employment of Miller as recommended herein. The Respondent Union shall not be liable for any back pay accruing after five (5) days from the date such notice is given. Absent such notification , the Respond- ent Union shall remain jointly and severally liable with Custom Underwear Company for all the back pay that may accrue. CONCLUSIONS OF LAW In addition to the conclusions of law Nos. 1 and 2 as set forth in the Intermediate Report annexed hereto , the Board makes the following conclusions: 3. The Respondent , Custom Underwear Manufacturing Com- pany, has engaged in and is engaging in unfair labor practices within the meaning of section 8 (a) (3) and ( 1) of the Act. 4. The Respondent Union, International Ladies ' Garment Workers' Union , A. F. of L., has engaged in and is engaging in unfair labor practices wi-thin the meaning of Section 8 (b) ( 2) and 8 (b) (1) (A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices , affecting commerce within the meaning of Section 2 (6) and ( 7) of the Act. 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: I. The Respondent , Custom Underwear Manufacturing Com- pany, Reading, Pennsylvania , its officers , agents , successors, and assigns , shall: A. Cease and desist from: (1) Encouraging membership in International Ladies' Gar- ment Workers ' Union, A. F. of L ., or in any other labor organi- zation of its employees , by discharging any of its employees or discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment. (2) In any other manner interfering with , restraining, or coercing its employees in the exercise of the right to self- organization , to form, join , or assist labor organizations, to bargain collectively through representatives of their own choosing, 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 right may be affected by an agreement re- quiring membership in a labor organization as a condition of employment , as authorized in Section 8 (a) (3) of the Act. CUSTOM UNDERWEAR MANUFACTURING COMPANY 123 B. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (1) Offer to Florence H. Miller immediate and full rein- statement to her former or substantially equivalent position without prejudice to her seniority or other rights and privi- leges. (2) Upon request, make available to the Board or its agents, for examination and copying, all pertinent records necessary to analyze the amount of back pay due under the terms of this Order. (3) Post at its plant in Reading, Pennsylvania, copies of the notice attached hereto marked "Appendix A."6 Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by the Respondent Company's representatives, be posted by it immed- iately upon receipt thereof and be maintained by it for at least sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (4) Notify the Regional Director for the Fourth Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. II. Respondent Union, International Ladies' Garment Work- ers' Union, A. F. of L., Reading, Pennsylvania, and its officers, representatives, agents, successors, and assigns, shall: A. Cease and desist from: (1) In any manner causing or attempting to cause Custom Underwear Manufacturing Company, its officers, agents, suc- cessors, and assigns, to discriminate against its employees in violation of Section 8 (a) (3) of the Act. (2) In any other manner restraining or coercing employees of Custom Underwear Manufacturing Company in the exercise of their rights to engage in or to refrain from engaging in concerted activities, as guaranteed them by Section 7 of the Act, 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 by Section 8 (a) (3) of the Act. B. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (1) Notify Custom Underwear Manufacturing Company, Read- ing, Pennsylvania, in writing, that it has no objection to her employment and request the Respondent Company to offer her immediate and full reinstatement to her former or substantially equivalent position without prejudice to her 6In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words "Pursuant to a Decision and Order" the words, "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." If 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority and other rights and privileges. (2) Post immediately in conspicuous places in its business office and wherever notices to its members are customarily posted, copies of the notice attached hereto marked "Appendix B." T Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by an official representative of Respondent Union, be posted by it immediately upon receipt thereof and be maintained for a period of sixty (60) consecutive days there-, after in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (3) Mail to the Regional Director for the Fourth Region signed copies of the notice attached hereto marked "Appendix B" for posting, the Respondent Company willing, at its Reading, Pennsylvania, office, and in places where notices to its employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being signed as provided in the preceding paragraph of this Order, be forthwith returned to the afore- said Regional Director for posting. (4) Notify the Regional Director for the Fourth Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. III. The Respondent, Custom Underwear Manufacturing Com- pany, its officers, agents, successors, and assigns, and Inter- national Ladies' Garment Workers' Union, A. F. of L., shall jointly and severally make whole Florence H. Miller for any loss of pay she may have suffered because of the discrimination against her in the manner set forth above in "The Remedy" section of the Decision herein. Member Beeson took no part in the consideration of the above Decision and Order. 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 in any labor organizaton of our employees or encourage membership in International Ladies' Garment Workers' Union , A. F.of L., by discharging employees or in any other manner dis- 7See footnote 6. supra 0 CUSTOM UNDERWEAR MANUFACTURING COMPANY 125 criminating in regard to the tenure of employment or terms or conditions of employment of our employees. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization , to form labor organization, to join or assist any labor organization, to bargain collectively through representatives for the purpose of collective bar- gaining 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 valid agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL offer Florence H. Miller immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and, jointly and severally with International Ladies' Garment Workers' Union, A. F. of L., make her whole for any loss of pay suffered as a result of the discrimination against her. All our employees are free to become or remain members of the above-named labor organization, or any other labor organ- ization, or to refrain from 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 employ- ment, as authorized in 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 employment against any employees because of membership in or activity onbehalf of any such labor organ- ization. CUSTOM UNDERWEAR MANUFACTURING COMPANY, Employer. Dated . ............... by .................................................... (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL MEMBERS OF INTERNATIONAL LADIES' GARMENT WORKERS' UNION, A. F. of L. AND TO ALL EMPLOYEES OF CUSTOM UNDERWEAR MANUFACTURING COMPANY 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 you that: 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT cause or attempt to cause Custom Under- wear Manufacturing Company, its successors or assigns, to discriminate in regard to the hire or tenure of employment or the terms or conditions of employment of its employees in violation of Section 8 (a) (3) of the Act, except in the manner and to the extent authorized in Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees of Custom Underwear Manufacturing Company, its successors, or assigns, in the exercise of their rights guaranteed in Section 7 of the Act, except in the manner and to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization, as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL, jointly and severally with Custom Underwear Manufacturing Company, its successors andassigns,make whole Florence H. Miller for any loss of pay suffered as a result of the discrimination against her. INTERNATIONAL LADIES' GARMENT WORKERS' UNION, A. F. of L., Labor Organization. Dated ................ By.................................................... (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon separate charges, duly filed by Florence H Miller, an individual, against the above- named company, herein called the Company, and against International Ladies' Garment Workers' Union, A. F. of L., herein called the Union, the General Counsel of the National Labor Relations Board, herein called the Board, caused the cases to be consolidated and issued a consolidated complaint dated June 18, 1953, against the Company and the Union, collectively called herein the Respondents, alleging violations of the National Labor Re- lations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges, the consolidated complaint, the order consolidating the cases, and a notice of hearing were duly served upon the Company, the Union, and the Charging Party The Respondents each filed separate motions for a bill of particulars which were granted in part. The consolidated complaint as clarified by the bill of particulars, alleged, with re- spect to the unfair labor practices, that at 11 a in., on February 26, 1953, the Respondent Union acting through and by Robert Mickus caused and attempted to cause Respondent Company to discharge Florence H Miller by demanding or insisting that Seymour Horowitz, a partner in the Respondent Company, discharge her and by threatening to sponsor and call a strike of Respondent Company's employees unless the said Florence H Miller agreed to and did pay a fine levied and imposed upon her by Respondent Union, and that the Respondent Union, by its agent, Robert Mickus, did restrain and coerce employees of the Respondent Company by threatening them with loss of employment unless lie said Florence H Miller agreed to and CUSTOM UNDERWEAR MANUFACTURING COMPANY 127 did pay a fine levied and imposed upon her by Respondent Union. That the Respondent Union, by the acts described above and by each of said acts, did cause and attempt to cause the Respondent Company to discriminate against Florence H. Miller in violation of Section 8 (a) (3), of the Act, and thereby did engage in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2), of the Act, and did restrain and coerce, and is restraining and coercing the employees of Respondent Company in the exercise of the rights guaranteed in Section 7 of the Act, and thereby did engage in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A), of the Act. The consolidated complaint further alleged that on February 26, 1953, the Respondent Company did discharge Florence H. Miller, and thereafter refused to reinstate her because of her failure and refusal to pay a fine levied and imposed upon her by the Respondent Union in violation of Section 8 (a) (1) and (3) of the Act. On July 24, 1953, the Respondent Company filed an answer in which it denied that it had engaged in any of the unfair labor practices alleged and averred that Florence H. Miller voluntarily quit her employment. On July 28, 1953, the Respondent Union likewise filed an answer denying that it had en- gaged in any of the unfair labor practices alleged in the complaint Pursuant to notice a hearing was hald at Reading, Pennsylvania, September 22 and 23, 1953, before Louis Plost, the undersigned Trial Examiner The parties were represented by counsel, who are herein referred to in the names of their principals. All the parties participated and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing upon the issues, to argue orally and to file briefs, proposed findings of fact and conclusions of law (either or all) with the undersigned. The parties argued orally, but each waived the right to file briefs, findings, and conclusions with the undersigned. At the closed of the General Counsel's case-in-chief the undersigned denied motions by the Respondents to dismiss the complaint. At the close of the evidence these motions were renewed, the undersigned reserved ruling, the motions are disposed of by the findings and conclusions hereinafter made. The undersigned granted a motion by the General Counsel to conform the pleadings to the proof with respect to spellings, names, places, and like minor variances. Upon the entire record and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT COMPANY It is admitted that the Respondent Company, is, and has been, at all times mentioned herein, a partnership organized and existing under the laws of the State of Pennsylvania with its principal office and place of business at Reading, Pennsylvania, where it is engaged in the manufacture of knitted underwear and sportswear The Company in the course and conduct of its business operations at Reading, Pennsylvania, during the year 1952 sold and distributed finished products valued in excess of $ 200,000, of which at least $ 50,000 thereof were sold and shipped by the Company across State lines directly to points outside the State of Pennsylvania. IL THE LABOR ORGANIZATION INVOLVED International Ladies' Garment Workers' Union , A. F. of L., is a labor organization within the meaning of Section 2 (5), of the Act, and admits employees of the Respondent Company to membership. III. THE ALLEGED UNFAIR LABOR PRACTICES The Reading local, referred to in the record as Local 93, is made up of various shop units, one of which is composed of employees of the Respondent Company. The Local has more than 1,000 members while the Respondent Company Employee's shop unit has about 75. The shop unit on occasion assesses fines against offending members, the money not being turned over to the Union, but the entire matter being treated as effecting the shop unit only. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Florence H . Miller , the complainant herein, who had been employed by the Respondent Company for about 5 years , and who was a member of the shop unit and the Respondent Union, (which has held a collective bargaining contract with the Respondent Company for some 4 years) was fined $ 1 by the shop unit. She refused to pay the fine. On February 26, 1953, Robert Mickus, the supervisor of the Reading Local together with Helen Osborne , the shop unit chairlady , conferred with Seymour Horowitz , a partner in the Respondent Company. At the conclusion of their business Mickus asked Horowitz to send for Miller . Mickus had been asked by Osborne to speak to Miller regarding her failure to pay the fine assessed against her by the shop unit . Miller was called to Horowitz' office where a conversation then took place between her and Mickus Present were Mickus , Miller , Osborne, and at times Horowitz , who testified , corroborated by Mickus and Osborne, that he was "in and out" during the conversation which lasted 15 or 20 minutes , but that he did not participate, however according to Miller , Horowitz was present at all times. The conversation between Mickus and Miller related to the unpaid dollar fine and is admitted by both to have been loud and heated. Miller refused to pay the fine. Miller testified that Mickus told her that she could not work in the plant unless she paid the fine. She testified: . Mr. Mickus said , " Either you pay the dollar fine or you don ' t work here." I said, "Well," I said , " I will tell you what I'll do, Mr. Mickus. We'll go upstairs and we'll call a meeting and let the girls give a decision." Mr. Horowitz also asked him to give that privilege to me , and he said , "No. I say you don't work if you don't pay that dollar fine," and I asked him, I said why was he butting in I said, " You have nothing to do with this ," and "I know I don't, but I say you don't work here if you don't pay the dollar fine" ... . Miller further testified: So after he wouldn't let me have a conference with the girls , I turned around and said, "Well, I'm going to go home until this is settled ," and that's all I said , so far as I can remember, in the office. Miller then amplified this testimony as follows: Q. (By Mr. Naimark) Let me ask you, then, do you recall anything further of the con- versation which took place? A. Yes, I do. I told him I would go upstairs and work, and he said if I worked he would call the mill on strike , and I said, well, I didn 't want that Miller testified that she then left the office and plant; that Horowitz did not speak to her when she left the office , that she took her scissors and tweezer with her, as she did every time she left the plant ; that she also took her cushion "because it was very soiled and I thought it would be a good time to get it washed ", and that sometime later her sister brought her other belongings from the plant. Horowitz testified that he left the room at the time Miller came in; that he came in and went out several times during the conversation; that he was in the room at the time the argument between Miller and Mickus ended; that he heard Miller say to Mickus, "I quit, I am going to finish out the morning , that she left the room immediately thereafter and that he said to Miller as she was leaving , " I will see you later." Helen Osborne testified that during the course of the conversation between Miller and Mickus the Union representative offered to loan the money to pay the fine to the shop unit;' that when Miller left "She told us she was going to work until noontime and she was going home, she was quitting," and, that " when she [Miller] left the office Mr. Horowitz told her he'd talk to her later.- 'This was admitted by Miller. CUSTOM UNDERWEAR MANUFACTURING COMPANY 129 Robert Mickus testified that during the course ofthe conversation between Miller and himself she said, "I'll quit before I pay the fine, I'll take a job on the night shift."2 He testified that he did not hear Miller "say anything" as she left but that her remark with reference to quit- ting was made "maybe two minutes" before she left and was addressed to him. Mickus further testified that he at no time requested the Respondent Company to collect the $1 fine from Miller or that Miller be discharged. Osborne testified that she did not hear Mickus threaten to call a strike or request Miller's discharge and she denied Miller's testimony to the effect Mickus'stated that Miller could not work in the Respondent Company's plant unless she paid the fine. Upon the entire record considered as a whole and from his observation of the witnesses the undersigned is persuaded and finds that the testimony of Robert Mickus with respect to his conversation with Florence H. Miller, in the office of the Respondent Company on February 26, 1953, represents the more accurate version thereof. The Respondent Company contends that Miller's statement to the effect that she was quitting (although not addressed to anyone connected with the Respondentavho might have authority to accept her resignation) coupled with Miller's unauthorized departure at about 11:30 a. m. constituted a voluntary quitting of employment. The General Counsel contends that Miller did not quit but was discharged by Horowitz after she left the plant According to the General Counsel's contention Miller was discharged in the following manner. Miller testified that at about 2 p. m. of the same day, Horowitz called her by telephone and that the following conversation then took place: The first words he said to me was, "I'm sorry, Floss, but the Union will not allow me to have you in my mill," and I said, "Not the night shift? " He said, "No, not the night shift," and I said, "Well, they are pretty big, but they will learn too, some day, they're not too big to fall." He said I shouldn't mention what happened in the shop, he wouldn't mention it either and I should come to see him sometime. Miller further testified: Q. (By Mr. Naimark) Did he say anything to you about having quit9 A. I don't believe so, not that I remember. Miller did not go back to the plant following this conversation. Horowitz testified that after Miller had left the office he did not speak to Mickus regarding her action and that at 11:30 he went into the plant expecting to meet Miller but found that she had already left. Horowitz' testimony with respecttohis conduct just prior to Miller's leaving the office is inconsistent in that on examination by the General Counsel he testified: Q. When she said she quit, did you say anything to her at all9 A. No. While at a later point in his testimony, on examination by his own counsel he testified: Q. As Florence Miller walked out of the office, what did you say to her? A. When she walked out, she said, "I quit," or, "I will finish the morning and quit," or "I will quit and finish the morning," and I said, "I will see you later." At about 2 p. m. Horowitz phoned Miller. With respect to this telephone conversation, in response to questions by the General Counsel, Horowitz testified: A. Yes, I told her I'm sorry she quit, and she was in tears . I said, "Don't worry about it," and to forget the whole incident. I also told her to stop up to see me. Q. That is the reason you called , to tell her you were sorry she quit? A. That is right. 2 There is evidence that although the Union holds a sole collective - bargaining contract covering all employees, the night shift is operated by nonunion employees, who are not treated as being covered by the contract. The validity of the contract was not raised. 339676 0 - 55 - 10 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Later, when being examined by his own counsel3 Horowitz testified: Well, she was in tears, and when I told her not to worry about it and forget the whole thing, she said, "Well, I expect only to work until vacation time anyway and then I was going to leave." Horowitz testified that neither Mickus nor any representative of the Union, at any time, demanded the discharge of Florence H. Miller, or that the Respondent collect or attempt to collect the $ 1 fine she had been assessed by the shop unit, or threatened to call a strike in the Company's plant if Miller did not pay the fine. Conclusion as to the Telephone Conversation Whereas Horowitz testified he said to Miller "I'm sorry to hear you quit," told her "don't worry about it," to forget the whole incident, and closed the conversation with a request that she "stop up to see me" and testified that Miller told him she had only "expected to work until vacation time anyway" Miller's version is that he suggested that she "shouldn't mention what happened in the shop, that she "should come to see him sometime," but that he opened the conversation with the statement "I'm sorry, Floss but the Union will not allow me to have you in my mill." The only material difference lies in Horowitz' opening statement to Miller. While Horowitz' explanation that he called Miller to say-he was sorry she quit, appears lame to the under- signed; that he would tell her the Union would not permit her in the mill seems entirely incredible for surely he would have assigned as an excuse for discharge, if he called for this reason, some cause not obviously an unfair labor practice, and would surely have mentioned her quitting, pr had he merely called her, as he testified, to tell her he was sorry she quit, she being an old and valued employee, he would surely have said so. In this respect Miller's failure to recall whether or not Horowitz mentioned her quitting is significant for surely on this point, Miller's memory should have been clear. The *undersigned is persuaded that Horowitz' account of the telephone conversation is the more accurate and credits his testimony with respect thereto. 4-CB-174 As herein found the complaint and the bill of particulars allege in substance that on February 26, 1953, at 11 a in. the Respondent Union, through Robert Mickus demanded of the Respondent Company that it discharge Florence H. Miller and threatened to strike the Respondent's plant unless Miller agreed to pay a $ 1 fine assessed against her by the Union or was discharged for failure to do so This conduct is alleged to be violative of Section 8 (b) (2) of the Act by causing an employer to discriminate against an employee, and 8 (b) (1) (A) by restraining and coercing employees The Respondent Company denied the Respondent Union had made any such demand or threat of strike upon it, and the Respondent Union likewise denied having engaged in the alleged conduct. The only evidence adduced by the General Counsel in support of the allegations of unfair labor practice against the Respondent Union as charged in Case No. 4-CB-174 is contained in the testimony of Miller as relating to her conversation with Mickus in the Respondent's office and later in Horowitz' statement to her over the telephone wherein (a) Mickus allegedly said to her that she could not work in the plant unless she paid the fine, (b) he would call a strike if she worked, and (c) Horowitz' alleged statementover the telephone, "I am sorry, Floss, but the Union will not allow me to have you in the mill." Assuming arguendo that the undersigned credited all of Miller's testimony, is there then sufficient material to bridge the chasm between allegation and finding? If one chooses to 3Horowitz was called by the General Counsel under Rule 43-B Rules of Civil Procedure for the District Courts or the United States hence his examination by his own counsel was after that by the General Counsel. CUSTOM UNDERWEAR MANUFACTURING COMPANY 131 construct such a bridge from Miller's testimony, can this structure support the heavy weight of inference which must be carried over it for a final conclusion that the Respondent Union engaged in the alleged unfair labor practice?4 The undersigned is convinced that were Miller's testimony entirely credited it would not support such a finding against the Respondent Company, however the undersigned has not accepted Miller's account of her conversation with Mickus on February 26, nor her account of her telephone conversation with Horowitz later that day as being entirely accurate and therefor finds on the entire record and the preponderance of the evidence that Mickus did not tell Miller that she could not work in the plant unless she paid the fine or that he would can a strike if she did so, and further finds that Horowitz did not, in effect, tell Miller she was discharged because the Umon would not allow her to work in the Respondent's plant. On the entire record considered as a whole, including his observation of the witnesses and the preponderance of the evidence the undersigned is convinced that the Union through Mickus did not seek to force the Respondent Company to collect a $ 1 fine due the Union from Miller, did not seek to keep the Respondent Company from employing or Miller from working in the Company's plant, and did not threaten to call a strike of the Respondent's employees if she was permitted to work without paying the fine. The undersigned so finds. The undersigned finds that the General Counsel has not sustained his burden of proof with respect to Case No. 14-CB-174 and will therefore recommend that the complaint be dismissed insofar as it alleges the Respondent Union engaged in any unfair labor practices 4-CA-867 The complaint alleges that the Respondent Company discharged Florence H. Miller in violation of 8 (a) (1) and (3) of the Act, because she refused to pay a fine levied upon her by the Union. The Respondent has not credited Miller's testimony to the effect that Horowitz told her that the Umon would not permit her to work in the plant. Without this statement, the record is otherwise bare of any evidence whatever to show that the Respondent discharged Miller. Deprived of the support which would come to a case against the Company were there a finding of unfair labor practice against the Umon, there can, in the opinion of the undersigned, be no other conclusion than that there has been a complete failure of proof on the part of the General Counsel. In his opinion the undersigned is not warranted by this record to infer that Horowitz' reason for telephoning Miller was to discharge her at the behest of the Union. Upon the entire record the undersigned finds that the General Counsel did not sustain his burden of proof as to the allegations of unfair labor practices against the Respondent Company in Case No. 4-CA-867 and will recommend that the complaint be dismissed insofar as it alleges the Respondent Company engaged in any unfair labor practices. Concluding Findings Having found that the Respondents have not engaged in any of the unfair labor practices as alleged in the complaint both in Case No. 14 -CB-174 and Case No. 14-CA- 867 the undersigned will recommend that the complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Custom Underwear Manufacturing Company, Reading , Pennsylvania , is, and at all times material herein has been, engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 4 There comes to mind an observation made by Mr. Justice Sherman Minton, (then Judge on the U. S. Circuit Court bench) in Interlake Iron Corporation, 131 F. 2d 129, 133 (C. A. 7). But an inference cannot be piled upon an inference and then another inference upon that, as such inferences are unreasonable and cannot be considered as substantial evidence. Such a method could be extended indefinitely until there would be no more substance to it than the soup Lincoln talked about that was made by "boiling the shadow of a pigeon that had starved to death." 1 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. International Ladies' Garment Workers' Union A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 3. The allegations of the complaint that the Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (b) (2) of the Act and that the Respond- ent Company has engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act have not been sustained. [Recommendations omitted from publication) CENTRAL NEW YORK BEER DISTRIBUTING COMPANY, ET AL.' and BEER DRIVERS, BREWERY, SOFT DRINK AND MAINTENANCE WORKERS, LOCAL 263, INTERNA- TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL, Peti- tioner.' Case No. 3-RC-1280. March 31, 1954 DECISION, DIRECTION OF ELECTION, AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Leonard Leventhal, hearing officer. The hearing officer's rulings made at the hearing are free from prejudical error and are hereby affirmed.' 1. The Petitioner seeks a multiemployer unit consisting of employees of all the Employers involved herein. In the alter- native, the Petitioner desires to represent the employees of the Employers in any units, if any, the Board should find ap- propriate. Because Luchini-Utica Corporation does not desire to be included in a multiemployer unit, but desires to pursue an independent course of bargaining, we shall not consider its commerce facts together with the four other Employers .4 The following are the commerce facts concerning the four Em- ployers who have expressed their desires to bargain for their employees on a multiemployer basis.5 Central Beer Distributing Company is engaged, at Utica, New York, in the wholesale distribution of Blatz, Iroquois, and Stein beers. It has, by oral agreements terminable at will, the exclusive rights to distribute these beers in certain designated areas in Utica and vicinity. During the past year it purchased about $60,000 of Blatz beer which was shipped from Blatz 'Rock City Beer Distributing Co.; Valley Distributing Co.; Mohawk Beverage Company, Inc.; Luchini-Utica Corporation. (The latter's name appears as corrected at the hearing). 2 The Petitioner's name appears as amended at the hearing. 3 Although International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, CIO, and its Local 54 intervened herein and asserted, inter alia, that their contracts with the Employers are a bar to the proceeding, they have since the hearing disclaimed any interest in the proceeding. We shall not concern ourselves with the contract- bar issue as no party to.the proceeding is presently urging a contract-bar issue raised by the former Intervenor. 4See Pacific Metals Company, Ltd., 91 NLRB 696 and cases cited therein. 5In addition to the fact that the Petitioner and these four Employers have agreed that a multiemployer unit is appropriate, these employees have a substantial history of bargaining on a multiemployer basis. 108 NLRB No. 28.