The Rivoli Mills, Inc,.

THE RIVOLI MILLS, INC. 169 2. By interfering with, interrogating, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. The Respondent did not violate the provisions of Section 8 (a) (3) of the Act in discharging Edwin K. Kaiser from its employ on March 4, 1952. [ Recommendations omitted from publication] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization, to join or assist any labor organization, to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8 (a) (3) of the Act. All our -employees are free to become or remain members of any labor organization We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. WESTERN TEXTILE PRODUCTS COMPANY OF TENNESSEE, Employer. Dated ................................... By ........................................................................... (Representative) (Title) This notice must remain posted for 60 day§ from the date hereof , and must not be altered, defaced, or coverer by any other material THE RIVOLI MILLS, INC. and INTERNATIONAL LADIES' GARMENT WORKERS' UNION, A. F. of L., PETITIONER THE RIVOLI MILLS, INC. and INTERNATIONAL LADIES' GARMENT WORKERS' UNION, A. F. of L. Cases Nos. 10-RC-1568 and 10-CA-1386. April 17, 1953 DECISION AND ORDER On December 31, 1952, Trial Examiner Alba B. Martin issued his Intermediate Report and Report on Challenged Ballots in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the 'copy of the Intermediate Report and Report on Challenged Ballots attached hereto. In the same report, the Trial Examiner also recommended disposition of the challenged ballots cast in the representation election. Thereafter, the Respondent filed exceptions to the Intermediate Report and Report on Challenged Ballots and a brief in support thereof. 104 NLRB No. 27. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report and Report on Challenged Ballots, the exceptions, the brief, and the entire record in the case,2 and hereby adopts the findings,: conclusions, and recom- mendations of the Trial Examiner with the following modifica- tions.4 The Trial Examiner recommended that Tilley receive back pay from August 24, 1951, Clark from September 24, 1951, and the strikers from October 17, 1951. The Respondent contends that Tilley and Clark were strikers, and that the Trial Examiner therefore improperly directed back pay to them during the period when they were on strike. We do not agree with this con- tention. When an employee has been discriminatorily laid off or dis- charged, the Board awards him back pay from the date of layoff or discharge, which is when a violation of the Act occurs. However, when an employee strikes, no violation occurs until the striker unconditionally applies for reinstatement and the employer wrongfully refuses to comply with the request. In that case, the employer violates the Act by refusing to reinstate. Back pay is therefore awarded onlyfromthe date of application for reinstatement. Tilley and Clark were not strikers, but discriminatorily laid- off or discharged employees. They are therefore entitled to back pay from the date of layoff or discharge. In Tilley's case, we shall make certain changes in the Trial Examiner's recom- mendations. Tilley returned to work on September 24, 1951, and on the same day joined in the strike in protest against Clark's discharge. As a striker after September 24 she was entitled only to the same back pay as other strikers. Accordingly, she will receive back pay from August 23, 1951, the date of her layoff, to September 24, 1951, and from October 17, 1951, to the date of the Respondent's offer of reinstatement. The Respondent also contends that the Trial Examiner im- properly recommended reinstatement to strikers who had en- gaged in acts of violence. There is no evidence of violence by 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Murdock]. z The Respondent has requested oral argument . The request is denied, inasmuch as the rec- ord and brief adequately set forth the issues and the positions of the parties. :The Intermediate Report contains the following minor errors in the recital of facts, which are corrected as follows - On page 177 of the report is the statement that "During the morning of August 23, 1951 , Tilleyranoutofthe color of the material she was using .. " This should read: "During the morning of August 23, 1951 , Tilley ran out of the collars for the jackets she was working on .. On page 181 of the Intermediate Report , the sentence reading , "Clock punched out at 7:11 o'clock," should read , "Clark punched out at 7:11 o'clock." 4In adopting the Trial Examiner's findings, we have accepted his resolutions of credibility in accordance with Board practice. Standard Dry Wall Products , Inc , 91 NLRB 544, enfd. 188 F. 2d 262 (C.A. 3); N. L. R. B. v. Swinerton and Walberg Company, 202 F. 2d 511 (C. A. 9). 5 The Trial Examiner incorrectly lists August 24, 1951, as the date from which Tilley's back pay is to commence. THE RIVOLI MILLS, INC. 171 any of the employees ordered reinstated. Superintendent Cofer did testify that a day or two after the start of the second strike, he went to the home of employee Camille Zolla to bring her to work. He found a group of persons, including strikers Imogene Parsons, Ruth Crabtree, and Gertrude Guffee, outside Zolla's home threatening her. According to Cofer, Parsons said, "If you go out we are going to knock your window lights out." Somebody else said, "We might even burn your house down. You don't want to get killed do you." Cofer did not identify the individual who made this latter threat. Zolla did not go to work that day because, she said, "I am afraid they will kill me." We believe that Parsons' conduct went beyond permissible bounds, and shall therefore not order reinstatement or back pay for her.6 Neither shall we direct that her ballot be opened and counted. As to Crabtree and Guffee, who were also present out- side Zolla's home, there is no evidence that they threatened Zolla. In these circumstances, there is no reason for denying them reinstatement and back pay.? ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Re- lations Board hereby orders that the Respondent, The Rivoli Mills, Inc., Chattanooga, Tennessee, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Ladies' Gar- ment Workers' Union, A.F. of L., or in any other labor organi- zation of its employees, by laying off or discharging any of its employees, or in any other manner discriminating against them in regard to their hire or tenure of employment, or any term or condition of employment. (b) Interrogating its employees concerning their union mem- bership and activities. (c) Threatening to discharge employees if they continued working for the Union. (d) Threatening to discontinue transferring employees from one machine to another if the union movement is successful. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self- organization, to form labor organizations, to join or assist In- ternational Ladies' Garment Workers' Union, A.F. of L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor or- 6N. L. R. B. v. Kelco Corporation, 193 F. 2d 642 (C.A. 4), enforcing as modified 94 NLRB 247; N. L. R. B. v. Deena Artware , Inc., 198 F . 2d645 (C.A. 6), enforcing as modified 86 NLRB 732 and 95 NLRB 9. 7 H. N. Thayer Company, 99 NLRB 1122. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ganization as a condition of employment, as authorized in Sec- tion 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 each of the employees, except Imogene Parsons, listed on Appendix A attached to the Intermediate Report, im- mediate and full reinstatement to their former or substantially equivalent positions without prejudice to seniority and other rights and privileges previously enjoyed. (b) Make whole each of the employees, except Imogene Parsons, listed on Appendix A attached to the Intermediate Report, in the manner provided in that section of the Inter- mediate Report entitled "The Remedy" as modified herein, for any loss of pay they may have suffered by reason of the Re- spondent's discrimination against them. (c) Upon request make available to the Board or its agents, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessaryto analyze the amounts of back pay due and the right of reinstatement under the terms of this Order. (d) Post at its plant in Chattanooga, Tennessee, copies of the notice attached hereto and marked "Appendix B.9" Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for at least sixty (60) con- secutive 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 such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Tenth Region, Atlanta, Georgia, in writing, within ten (10) days from the date of this Order, of the steps taken to comply herewith. IT IS FURTHER ORDERED that the challenges to the ballots of J. R. Jenkins, Eugenia Scroggins, Evelyn Mason, Louise Ashmore, Chester Garner, Alfred Scott, Bunyon Walker, Celia Marks, Mary Leola Lea, Mildred Rigsby, Mary Inez Ware, Willie Fay Barfield, Geneva Garner, Willie Joe Hayes, Erlene Howard, Margaret Hughes, Imogene McGinnis, Mattie Sheets, Norma Lee Smiddie, Gertrude Smith, Mary Lou Swafford, Frances Myers, Ruby Clayton, Bernice Lane, Estelle Sharp, Alta Trew, Roxie Mae Hilliard, Dolly Duke, Cleo Kendrick, Thelma Norris, Dolly Scroggins, and Alice Davis be, and they hereby are, sustained.9 8 In the event that this order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pur- suant to a Decree of the United States Court of Appeals , Enforcing an Order." 9The employees listed in the above paragraph are all striker-replacements . As the strike was an unfair labor practice strike, the strikers and not their replacements were eligible to vote . See Times Square Stores Corporation, 79 NLRB 361, 364. In its order dated May 5 . 1952, the Board sustained the challenges to the ballots of M. R. Priest, Joe Heflin, and Myrtle Slaton, and overruled the challenges to the ballots of Irene Raines and Eula Hamrick. THE RIVOLI MILLS, INC. 173 IT IS FURTHER ORDERED that the challenges to the ballots of Frances Avery, Ollie Chambers, Ruth Crabtree, Florine Fitzgerald , Dorothea Garren, Nellie V. Green, Mary Gunter, George Hayes, Hazel Judge, Joyce Kendrick, Virgie Mahan, Ona Mason, Stena Ransom, Virginia Vitatoe, Lena Brock, Cynthia Chambers, Jewell Cox, Mary Durham, Winnie Lu Gaither, Lucille Gossett, Gertrude Guffee, Elizabeth Hart, Dorothy Headrick, Geneva Kelly, Clara Lusk, Ruby A. Martin, Helen Morgan, Dorothy Poe, Martha Short, James A. Smith, Edna Vandergriff, Bertha Tilley, Camille Zolla, and Carrie Pylant be, and they hereby are, overruled. IT IS FURTHER ORDERED that the Regional Director for the Tenth Region shall, within ten (10) days from the date of this order, open and count the ballots the challenges to which have been overruled , and shall thereafter serve upon the parties a supplemental tally of ballots, including therein the count of these ballots. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Re- lations 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 International Ladies ' Garment Workers' Union , A.F. of L., or in any other labor organization of our employee, by laying off or discharging any of our employees, or in any other manner discriminating against them in regard to their hire or tenure of employment , or any term or condition of em- ployment. WE WILL NOT interrogate our employees concerning their union membership and activities. WE WILL NOT threaten to discharge our employees if they continue working for any labor organization. WE WILL NOT threaten to discontinue transferring em- ployees from one machine to another if the union organi- zation movement is successful. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist International Ladies' Garment Workers' Union, A.F. of L., or any other labor organization , to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from any or all of 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. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to the following employees immediate and full reinstatement to their former or substantially equiva- lent positions, without prejudice to any seniority or other right and privileges previously enjoyed, and make them whole for any loss of pay suffered as the result of the dis- crimination against them: Frances Avery Mildred L. Carter Ollie Chambers Ruth Crabtree Florine Fitzgerald Dorothea Garren Nellie V. Green Mary Gunter George Hayes Hazel Judge- Joyce Kendrick Virgie Mahan Ona Mason Stena Ransom Virginia Vitatoe Lena Brock Cynthia Chambers Max Cherny Jewell Cox Mary Durham Winnie Lu Gaither Lucille Gossett Gertrude Guffe Elizabeth Hart Dorothy Headrick Geneva Kelly Clara Lusk Ruby A. Martin Helen Morgan Dorothy Poe Martha Short James A. Smith Edna Vandergriff Bertha Tilley Nellie Clark The Rivoli Mills, Inc., 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. Intermediate Report and Report On Challenged Ballots STATEMENT OF THE CASE Upon a charge filed October 17, 1951 , and a first amended charge filed April 15, 1952, by 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 General Counsel and the Board, by the Regional Director for the Tenth Region (Atlanta , Georgia), on April 17, 1952, issued his complaint against - The Rivoli Mills, Inc., herein called Respondent , alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended , 61 Stat. 136, herein called the Act. Copies of the charges, complaint , and notice of hearing were duly served upon the parties. With respect to the unfair labor practices the complaint alleged in substance that Respondent discharged Bertha Tilley on or about August 23 , 1951, and discharged Nellie Clark on or about September 24, 1951, becuase of their union and concerted activities , and that at different dates in August and September 1951 Respondent interrogated its employees concerning their union membership, activities, and desires , threatened them with discharge because of their union membership and activities , and promised them benefits if they would abandon their union ac- tivities The complaint alleged , further, that Respondent's above-alleged activities caused the employees to cease work concertedly and go on strike from August 24 to September 24, 1951, THE RIVOLI MILLS, INC. 175 and again on September 24,1951 , and that when and after the employees applied unconditionally for reinstatement on October 17, 1951 , Respondent refused to reinstate them. In its answer filed April 22, 1952, Respondent admitted the commerce facts alleged in the complaint and denied the commission of any unfair labor practices. In a Board-directed I election heldJanuary 11, 1952 , the challenges were sufficient in number to affect the results of the election. Thereafter , in its order directing hearing on challenged ballots , dated May 6, 1952 , the Board disposed of some of the challenges and directed that a hearing be held with respect to certain of the challenges . The Regional Director thereupon ordered the complaint case and representation case consolidated and pursuant to notice set the hearing for August 4, 1952 The hearing was held in Chattanooga , Tennessee , from August 4 to August 8, 1952 , before Alba B. Martin, the undersigned Trial Examiner. The General Counsel , the Respondent , and the Union were represented by counsel. All parties participated in the hearing and were afforded opportunity to be heard , to examine and cross-examine witnesses , and to introduce evidence pertaining to the issues . At the end of the hearing all parties made oral argument . Respondent filed a brief. Upon the entire record in the case and from observation of the witnesses, I make the fol- lowing: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT The Rivoli Mills , Inc., a Tennessee corporation with its principal office, plant , and place of business at Chattanooga , Tennessee, is engaged in the manufacture and sale of textile products. During the calendar year 1951 Respondent purchased raw material, equipment, and supplies valued in excess of $100 ,000, of which more than 75 percent in value was purchased and shipped to Respondent from outside of Tennessee . During the same period Respondent sold finished products valued in excess of $ 300,000 , of which more than 75 percent in value was sold and shipped in interstate commerce to points outside of Tennessee . It is held that Re- spondent is engaged in commerce within the meaning of the Act. IL THE 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. III. THE UNFAIR LABOR PRACTICES A. Organizational efforts of the employees , followed by inter- ference, restraint , and coercion by Respondent , and the discriminatory layoff of Bertha Tilley Because of what was described as the increasingly " rugged" working conditions in Re- spondent' s Chattanooga plant a number of the employees , most of whom were women, began in early August 1951 to discuss forming a union . Nellie Clark, one of their number , suggested that they contact the International Ladies ' Garment Workers' Union, and after they discussed that suggestion for about a week, she herself called the Chattanooga office of that Union, with the result that an organizer for that Union , Alice Costello, came to Nellie Clark' s house and Clark sent her to the homes of some of the other employees . A number of the employees, in- cluding Nellie Clark, Bertha Tilley , and Cynthia Chambers, passed out application cards and attempted to persuade employees to join the Union. Wolfe K . Lefkoff, Respondent' s president, came to the water fountain in the plant on about August 17, facing them, as Bertha Tilley was talking to Florine Fitzgerald about signing up and as the latter laid one of the cards upon a machine nearby. By August 24, some 60 of Respondent' s approximately 80 to 90 production employees had joined the Union. This was not the first self-organizational effort among the employees nor the first assis- tance offered by the Union. Movements were started some five previous times and assisted twice by Alice Costello . Lefkoff testified that he never thought the previous activity represented serious efforts to organize the employees , and that when he first heard of the organizational efforts in 1951 , he thought that " it is just another one of those little needle-pricks that they 110- RC- 1568. Decision and Direction of Election dated December 13, 1951 ( not reported in printed volumes of Board decisions). ' 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are always doing." Although on August 15, 1951, Alice Costello and two other representatives of the Union had called upon Lefkoff in his office and requested him to recognize and bargain with the Union, Lefkoff testified, in effect, that the first time he realized there was any union activity among his employees was on about August 20 when he called to his office employee Cynthia Chambers to ask her why she was going from machine to machine talking with the girls and she replied she was trying to organize a union. It does not appear likely that in 5 days the president of Respondent corporation would have forgotten the Union's assertion of interest and and implied majority claim. Indeed, on August 15 Lefkoff told the union committee that he would not talk with them, that they should see his attorney; and after the visit he contacted his lawyers,2and had them compose a letter to his employees. According to the credible and credited testimony of Cynthia Chambers, Lefkoff summoned her to his office early on the morning of August 20 and told her he understood she was a ring- leader in the Union, that he understood she had been having cards signed on his time and property, that he had discussed the matter with his lawyer, and that if she continued to do so he could fire her. Chambers admitted getting cards signed, but stated she was doing so on her own time. Lefkoff then asked her why she wanted a union, and when she told him, asked why she hadn't come to him with her complaints before. In concluding Lefkoff told her, in effect, that if she continued working for the Union he would discharge her. It is held that Lefkoff's statements to his employee were calculated to evoke from her answers relating to her union activities, and as such they interfered with, restrained, and coerced employees in the rights protected in Section 7 of the Act, Respondent thereby violating Section 8 (a) (1) of the Act. It is held further that Lefkoff's threat to discharge Chambers if she continued to work for the Union constituted interference, restraint, and coercion of employees in the rights protected in Section 7 of the Act, Respondent thereby violating Section 8 (a) (1) of the Act. The next day, August 21, 1951, Lefkoff asked two of his employees, Imogene Parsons at her place of work and Virginia Vitatoe as she was awaiting a ride home outside the plant, if they had signed union cards, and when they evaded his question he told them he knew they had by the answers they gave. In testifying Lefkoff admitted these interrogations and stated he was joking with the girls. In the context of all the facts in the case, it is held that he was not joking and that these interrogations violated the rights mentioned above and violated Section 8 (a) (1) of the Act. On August 22, 1951, as the employees were leaving the plant at the end of the workday, Lefkoff personally passed out to them mimeographed copies of the letter his attorneys had composed at his request. Lefkoff testified that he was prompted to put out this letter because he had seen Cynthia Chambers talking to the girls •' and I suspected she wanted to get them to join the. union. So I put out that letter after I talked to her." He did this even though, as he testified, he concluded upon talking with Cynthia Chambers that this effort to organize the em- ployees was just another "needle-prick." This letter stated that Lefkoff had recently been approached by a committee of a labor union who had claimed the Union represented a majority of the employees for collective- bargaining purposes ; that Lefkoff doubted this claim; that the matter could be settled by an election; that they should stop and consider their pleasant re- lations with the Company, their best wages the Company could afford, that they were provided work when times were slack, and other benefits of the existing relationship; that the Company recognized the right to join a union but that "union or non-union membership will have nothing to do with your job with this company." The letter concluded: You must decide what you feel is best for you and your family. You know what to expect from the Company. You do not have to rely on promises as you do with the Union. This is a free country. You can do as you please. If any of you want to talk to me, I shall be glad to see you as I have always been in the past. We want you to be happy and we feel that you can bargain for your own interests just as successfully as any union can. The statements in this letter were views, arguments, or opinions protected under Section 8 (c) of the Act. It is clear that he put it out, however, because he considered the organizational efforts a serious threat and not an incidental "needle-prick," as he testified. His interroga- tion of Chambers, Parsons, and Vitatoe, and his threat to Chambers, indicate that he intended to learn who among the employees was behind the organizing drive, and to put a stop to it. Although Lefkoff s explanations for many of his actions brought out in the case were at variance with the testimony of other witnesses, because of its improbabilities and self contra- dictions, I am unable to credit his testimony except where there is substantial corroborating evidence. 2 Different lawyers from his counsel at the hearing. THE RIVOLI MILLS. INC. 177 Several days before the strike of August 24, Kittie Lou Smiddie , a forelady, stipulated by counsel to be a supervisor , realized something was happening among the employees , and ac- cording to the credited testimony of Nellie Clark she engaged Clark in conversation with the inquiry: "What is that I hear about you girls getting a union ? " It is held that this interrogation occurred during the next to last week in August , and that , considered with the other violations of that week , it amounted to illegal interrogation and violation of Section 8 (a) (1) of the Act. Several days before the strike of August 24, Kittie Lou Smiddie told Hazel Judge, an em- ployee, that she "hated to see the union come in because whenever it come in you couldn't change on the machines then" and that when anyone was caught up with her work she would have to go home. The expression of these thoughts amounted to a threat that if the Union were successful in organizing the employees the penalty would be no transfers from one machine to another and more layoffs for lack of work. This amounted to interference , restraint, and coercion in violation of Section 8 (a) (1), and was a correct prognostication of the lot which was to befall Bertha Tilley. Bertha Tilley , aged 62, worked for Respondent for nearly 4 years, principally on several types of serger machines , and somewhat on a tacker machine. She was an average employee whose quality ana quantity of work had never been adversely criticised by management. She joined the Union about August 1 , 1951 , and thereafter freely and outspokenly and loudly ex- pressed her opinions in favor of the Union wherever she was. She passed out union member- ship cards and attempted to persuade employees to sign them, including one employee in the presence of Lefkoff. During the morning of August 23, 1951, Tilley ran out of the color of the material she was using, and as she waited for someone to bring her more Lefkoff walked by her machine where she was sitting and asked her what she was doing. She told him she had run out of material and he went on. Soon her supervisor , Kittie Lou Smiddie , asked her what she was doing, and she replied that she was out of material and Carrie Pylant had gone to bring her more. In fact there was no more of the proper color of the material , which Smiddie knew Smiddie told Tilley there was nothing more for her to do and that she would have to go home . When Tilley asked her why, Smiddie replied , according to the credited testimony of Tilley , a credible wit- ness, "The Union will not allow you to change from one machine to another ." Tilley replied that they did not have a union yet, and that there was plenty of work for her on a machine she had previously run, a serger Smiddiethensaidthat Tilley should see Fred Cofer , the superin- tendent . This she did , and Cofer' s reply toher was that the Union would not allow her to change from one machine to the other Tilley then went to Lefkoff and asked him why he was laying her off when there were plenty of "shoulders there and that was my operation ." Lefkoff re- plied that he not doing it. Tilley answered that Smiddie and Cofer had told her to go home. Lefkoff replied that whatever Smiddie and Cofer said "goes." He added that he did not have time to talk with her, and walked away. On the way out Tilley related her predicament to a number of the other employees in the restroom , whose impulse was to strike immediately unless Respondent give more work to Tilley . The latter cautioned against this, and said she would take the matter up with an organizer . A few moments later , when Tilley was outside the building, she asked another employee to askSmiddie to step out and talk with her . Smiddie came. Tilley told her what Lefkoff had said , and Smiddie replied . " Tilley , don't jump on me. I have to do as I was told. It is all because of this damn union. I wish I had never heard of it." The following day, August 24, 1951 , Alice Costello and two other representatives of the Union called at Lefkoff' s office with Tilley and asked him to return Tilley to work As to what oc- curred at this meeting the record has the benefit of only Lefkoff` s testimony and the testimony of Tilley that Lefkoff refused to reinstate her. Lefkoff testified at first that he did not agree to reinstate Tilley, that he told the union representatives to see his attorney, Mr. Noon, "who looks after these things for me." When Costello asked to use his phone to call Noon , Lefkoff granted the request but warned her that he was going to record the conversation which he did. On the witness stand Lefkoff explained that he records telephone conversations "for my own benefit and for my attorney ' s benefit " Responding to a question by the Union ' s attorney, Lefkoff testified that he did not "think" that he made any effort that morning to find out if there was any work on which Tilley could be placed . At this point he changed his previous testimony and said that he did agree to put Tilley back to work "when I had the work " When the representatives asked him to go out into the mill and tell the girls he would return Tilley to work he replied, I can't take any orders from you, because I haven't been officially notified that you are the representative of my girls, who have not had an election . You tell me you are from the ILGWU, maybe you are , but so far as I know you are not our duly authorized elected representative of our employees . Ihave never been notified by the government or in writing or verbally by anybody that the ILGWU represents my employees , and I am not going out there and tell them anything 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He added that he told them, .......it wasn't my business to go out and tell the girls what they wanted me to tell them, I wasn't working for them. A short time later that day, August 24, by prearrangement if Tilley was not reinstated, some 25 of Respondent's employees left their machines and the mill and went on strike As another group was walking towards the door Lefkoff came up and talked to them. He asked why they were going out and received the reply that they were going out because of his dis- charge and refusal to reinstate Bertha Tilley One of the employees told him that if he would put Tilley back to work, they would return to work. Three credible witnesses testified that Lefkoff said he "had" someone at the union meeting several nights before and that he knew who was there and what was said and done, two of these witnesses credibly testified also that Lefkoff said that neither they nor the Union was telling him how to run his business. Lefkoff told the group that they were on a wildcat strike, that they had no union and no representative. Nellie Clark stated that they did have a representative and brought Alice Costello in. When Lefkoff saw Costello he ordered her off his property and said that he did not have time to be bothered with her or with the Union. Respondent's defense of its action concerning Tilley was that Tilley was temporarily laid off in accordance with its custom of laying off employees for short periods from time to time when Respondent was temporarily out of the kind of work the given employee was able to perform. That the custom exists was borne out by the evidence. I am not convinced that the evidence establishes that there was no work to which Tilley could have been assigned. Neither Smiddie nor Cofer told her that, even under their statements of the facts. On the stand Cofer did not recall whether that day he discussed with Smiddie whether or not there was more work for Tilley On cross-examination Smiddie testified that "there probably wasn't a machine in the line" for Tilley to work on, but given an opportunity she did not testify definitely that there was no such machine. A week later, on August 30, 1951, Lefkoff brought with him, to a meeting with representatives of the Union and a Board field examiner called to alleviate the strike by arranging for a con- sent election, some of Tilley's pay or production records. Witnesses for both the General Counsel and Respondent testified that Lefkoff stated that Tilley had been laid off for lack of work and because of her inefficiency Although Iam not convinced he said that, it is clear that he did take the position at first that he would not reinstate her because she was an inefficient worker When asked why, if she was ineffitient; he not d laid het' off before, either Lefkoff or his wife, vice president of Rrespohidbfit, replied that they had not been able to replace her prior to then- which seems highly doubtful in a labor market as large as Chattanooga. In any case, Lefkoff's bringing the pay or production records with him, and his raising at all the question of efficiency, represented a considerable departure from lack of work, which was the only reason given Tilley for her layoff just a week before. At this 'conference Lefkoff agreed to reinstate Tilley and his willingness was not conditioned upon work being available. Conclusions as to Tilley: Upon consideration of the above evidence and all the evidence in the case it is concluded that Lefkoff knew that Tilley was outspokenly in favor of the Union and was assisting in the organizational drive , and that he decided to put a stop to these activ: ities and' the union movement by using Respondent 's layoff custom as a pretext to get rid of her. Lefkoff's determination to resist the Union appears from his verbal statements to the employees and statements made in their presence set forth above. kittie Lou Smiddie's re: mark to Hazel judge a few days before Tilley's layoff indicates her knowledge that the union drive would occasion discriminatory layoffs, and her comments to Tilley as she was telling her to go home and later outside the plant, indicate that the Union rather than lack of work was the reason for Tilley's layoff, and that Smiddie was simply carrying out orders. Cofer's remark to Tilley bears out the same conclusion. It is held that by laying off Bertha Tilley on August 23, 1951, Respondent unlawfully restrained and coerced its employees in violation of Section 8 (a) (1), and discriminated against Tilley in regard to her hire and tenure of em- ployment, thereby discouraging membership in the Union, in violation of Section 8 (a) (3) of the Act. B. The first strike Altogether, on August 24, about two-thirds of Respondent's employees left the plant and went on strike in protest of the discriminatory layoff of Bertha Tilley and Respondent's other unfair labor practices found above. The remaining employees closed up the mill and were sent home by Lefkoff, who made no effort to operate during the strike. The strike lasted from August 24 until September 24, 1951, during which the strikers maintained a strike headquar- ters in a tent across from the main plant entrance and, at certain hours, a small picket line. THE RIVOLI MILLS, INC. 179 At 2 conferences during the strike, at which a possible strike settlement was discussed--1 in a Board field examiner's office and the other with a commissioner of the Federal Mediation and Conciliation Service- -Respondent was represented by Mr. and Mrs Lefkoff as president and vice president of the corporation, Superintendent Fred Cofer, and a different attorney each time. The Union was represented by two or more international representatives or organ- izers and a committee of strikers. At first the strikers demanded the reinstatement of Tilley and recognition of the Union, and Respondent refused to reinstate Tilley or to recognize the Union until after a Board election. Finally, on September 17 the Union and on September 20 the strikers agreed to end the strike when in writing Respondent agreed to recognize the Union up to the date of a Board consent election, which was set for September 28, and agreed "not to discriminate against any of its employees, or change wage rates or working conditions from this date to the date of election." In addition the parties made an oral agreement con- cerning the reinstatement of Bertha Tilley, the exact nature of which was in great dispute in the record. The Union contends Respondent agreed to place her on a serger machine, with which she was most familiar, and Respondent contends it agreed to place her on any machine she could operate, including a tacker, at the discretion of management. It was agreed that she would work a 60-day trial period, after which Respondent would have a right to discharge her if her production was not at least 75 percent of that of an average operator on that operation. Joe Lee Walden, executive secretary of the Union's southeastern region, was the witness whose testimony impressed me as most accurately reflecting the agreement as to Tilley. Her testimony and her written notes made during the conference indicate that the agreement was that the trial period was to be on a serger machine or on a merrow machine which had a similar operation, on which machines Tilley operated at her greatest efficiency. Such an agreement was in key with the probabilities. The strike having been caused in part by and precipitated by the layoff of Tilley, and most of the first conference having been spent in dis- cussing her reinstatement, it is probable that Respondent, who was eager to resume produc- tion, gave in to the Union on this point, realizing that the strikers were adamant. Further, it is highly improbable that the Union and strikers' committee agreed to a production rate for Tilley on a machine on which she was admittedly slow- -such as a tacker- -or on an undesig- nated machine or machines at the discretion of management where it would be so easy for the latter to make certain her production would be low. Considering the entire record, it is con- cluded that the agreement concerning Tilley was that she should be returned to work on a serger machine or a merrow machine, which was similar. Between the two conferences referred to above, Mr. and Mrs. Lefkoff and Fred Cofer individually or in pairs called at the homes of several of the strikers and attempted to per- suade them to return to work and to get the other strikers to do likewise. At one of the homes Cofer told Alice Costello, who had suggested a meeting with Lefkoff, that the latter did not like Costello, that "he hates you and he won't talk to you " Dorothy Headrick, one of the strikers, testified credibly that at her house Lefkoff said that he intended to fight the Union as long as he could. The written strike-settlement agreement did not set forth the time the strikers would return to work. By oral arrangement between Respondent's attorney and Alice Costello, some of the strikers returned to work on Friday and Saturday but the bulk of them returned on Monday, September 24, 1951 September 21 Respondent's attorney wrote the regional director of the Union This letter confirms the conference I had with Mrs Alice Costello yesterday in Mr Morris Miller's office when it was agreed that the Company would assume and accept that any employees not showing up for work Monday morning will be considered no longer employees of this Company unless they have a legitimate excuse. C. The discharge of Nellie Clark September 24, as the employees returned id work a little before 7 o'clock, (the shift began at 7) many of them for the first time in a month, both management and the employees were tense. The Board election was a mere 5 days off. As the employees entered the plant , union organizers passed out leaflets to them. Lefkoff, contrary to his custom, as well as Cofer and Smiddie, assigned them to machines. Just before the employees came in Lefkoff and Cofer decided, according to the latter's testimony, to place the employees on a temporary basis at first, in order to settle them down, and then later to reassign them on a more permanent basis; but they made no announcement to that effect to the employees generally. Had they done so, much of the ensuing confusion might have been avoided. Although they knew the layoff of Tilley had been at least one of the causes of the first strike and although they had both participated in a long discussion with union and striker representa- 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tives as to where Tilley should be placed upon her return to work, Lefkoff and Cofer made no plans concerning the placement of Tilley on September 24. Cofer testified in effect that he did not consider that he should handle Tilley with any especial care that morning, and that, by happenchance. Tilley was the first one he gave an assignment to that morning As Cofer knew, Tilley had had more experience on a serger than on a tacker, and most of Respondent's ma- chines were sergers. Yet Cofer placed Tilley on a tacker, and, at that, one that needed re- pairs before it was in working order. Only a small desire to abide by the strike-settlement agreement and to avoid irritating the union adherents among their employees, or, in the patent absence of that, ordinary precaution, would have led Lefkoff and Cofer to place Tilley on a serger or merrow from the start. The unplanned and haphazard manner in which employees were placed at the machines caused a number of employees, including some members of the strikers' committee, to protest their assignments, which in turn caused Lefkoff's temper to rise and led to his making some strong statements, accompanied by profanity. According to the credited testimony of several employees, when Bertha Tilley protested her assignment to the tacker, Lefkoff told her in a loud voice, and with some profanity, that she should get on that tacker or he would call the police and have her thrown out., At about that time he called to his wife and Cofer in the office to call the police and they did so, the latter reporting a "free-for-all." When one of the employees, Nellie Clark, toLefkoff's knowledge a member of the employees' committee, protested that placing Tilley on a tacker was contrary to the strike-settlement, that the agreement called for Tilley's being placed on a serger, Lefkoff replied, in effect, that union or no union, agreement or no agreement , no union was going to tell him where to place his employees or how to run his business When, just a few moments after 7 o'clock, Nellie Clark was looking for Forelady Smiddie to get an assignment and Lefkoff remarked to her that he payed her to work and not stand around and loaf, Clark replied that she didn't have a ma- chine. Lefkoff replied, in short temper, that the machines were his machines, that he paid for them with his own money, and that no union or anyone else was going to tell him how to run them. While Nellie Clark was protesting onbehalfofTilley, as related above, Lefkoff ordered her, according to her credited testimony, to get on a machine and get to work, upon pain of dis- charge. According to the testimony of Florine Fitzgerald, an employee, she was some 15 feet away from Lefkoff and Clark when she heard the former tell the latter "to get on her machine or get the hell out of here." She did not hear Clark's reply, if any. When Clark replied, ac- cording to Clark's testimony, that the machine to which she had been assigned was not yet in running order, Lefkoff ordered her to sit at it until it was repaired. When she acquiesced he ordered her to go to work. She protested that she could not run the machine without a foot on it, and added that it was not her machine to begin with. Lefkoff's reply, according to Clark's testimony, was, "You have no machine . . You refused to come in here Friday, and you are fired " Gertrude Guffey, another witness for the General Counsel, testified on cross- examination, the subject not having been raised on direct examination, that she overheard Lefkoff tell Nellie Clark to get out, that she was fired. Several other witnesses for the General Counsel testified in effect that Clark was discharged. Ruth Crabtree stated that although she did not hear all of the conversation, sheheard Lefkoff tell Clark she was fired, "to get the hell out." Bertha Tilley testified she heard Lefkoff tell Clark "to get the hell out of there, she was fired." Hazel Judge heard Lefkoff tell Clark that "if she didn't go to work she could get the hell out of there, she was fired." After Lefkoff had told her she was fired, Clark told him, she testified that he had not lived up to his agreement, that "you are agitating another strike and we will walk out again." To which Lefkoff replied, "You are fired anyhow .... Punch your clock." The testimony showed that the machine on which Lefkoff ordered Nellie Clark to go to work lacked a zipper foot, and in testifying Lefkoff admitted that the machine could not operate at all without a zipper foot. So in his anger Lefkoff directed his employee to go to work on a machine which could not possibly be operated. Lefkoff s reference to Clark' s refusing to work Friday related to a telephonic request from SmiddietoClark following the oral arrangement referred to above, in which Smiddie suggested that Clark return to work Friday, September 21, the latter replying that the agreement was that they would all be back at work on Monday, Septem- 3Lefkoff testified that he did not give any directions concerning the placement of Tilley that morning, and then, inconsistently, that he insisted on keeping Tilley on the tacker when Nellie Clark and Ruth Crabtree urged otherwise, "because I wanted her on a tacker I had some work I wanted her to do on a tacker." This testimony was inconsistent also with Respondent's testi- mony that its original placement of Tilley and some of the other employees was on a temporary basis only. THE RIVOLI MILLS, INC. 181 ber 24. Actually Clark was not obliged to report to work before Monday under the strike- settlement agreement , and many of the employees did not report until Monday and were not discharged for their failure to report earlier. Several witnesses for Respondent testified that they heard Nellie Clark say to Lefkoff that he could take his machine and go to hell with it. Zelah Norris heard some raised voices over the noise of her flat lock machine, and by the time her "seam run out and my machine stopped" she heard Clark express the above sentiment to Lefkoff. She did not hear what Lefkoff said to Clark just before this statement by Clark. Nettie Pass heard the remark but did not hear what Lefkoff had said to provoke it. Kittie Lou Smiddie's version of the conversation, which she overheard, was that Clark insisted upon working on "my" machine, that Lefkoff kept telling her to work on another machine, and that Clark said, "You can take your machine and go stright (sic) to hell with it. I am not working. I am going home" --to which Lefkoff replied, "Well, go on." Fred Cofer , the superintendent , testified that he did not hear all of the con- versation; that he heard Lefkoff tell Clark she could work on a certain machine which was just like the one she had previously worked on and would do the same operation ; that Clark said Lefkoff could take his machine- -or mill, Cofer was not sure which- -and "go to hell with it." Lefkoff s version was that after protesting being assigned to some machine other than the one she had worked on before the strike , and after Lefkoff told her to work on the other ma- chine and to go sit down at it, Clark replied, "The hell with you. You can keep that machine. I am not going to work here at all. I quit." In the light of the entire record it is held that any use of profanity by Clark was made after Lefkoff discharged her and not before. It is not disputed that after the words between Lefkoff and Clark came to an end Lefkoff walked with Clark some 50 feet to the front door and unlocked the door and let her out Before letting her out he saw that she punched put on the time clock --"because previously a lot of girls didn't punch out on the first strike." Clock punched out at 7:11 o'clock. As he let her out, according to the uncontradicted testimony of Dorothy Headrick, a credible witness, Lefkoff said to Clark, "Get the hell out of here and don't come back." Headrick, who was near the door , said to Lefkoff that if he was firing one of them they would all walk out. Respondent' s contention that Clark quit her job is not supported by the evidence . The record indicates that Clark was one of the leaders of the organizing efforts, in fact was the one who suggested that they contact the Union; that she believed and had participated with the other employees in collective action, which she last engaged in just a few moments before her dis- charge by attempting to assist Tilley. Thus, there is every indication that she intended to stay with the struggle and to see it through , and that she would not lightly abandon the cause in which she had enlisted . The record discloses no motive for her quitting and no suggestion that she was of the caliber which quits under stress. It is concluded , upon consideration of all the substantial evidence in the case , that the pre- ponderance of the evidence indicates that Nellie Clark did not quit, as contended by Respondent, but that she was discharged by Lefkoff. Lefkoff's hostility to the Union is well shown throughout the record, and his treatment of the returning strikers on September 24 was in keeping with that hostility. Towards them his actions and his words were provocative and defiant. His statements to Tilley, Clark, and a number of other returning employees, betrayed a mood and an intent to ignore and defy their rights under the Act. His discharge of Clark when she stood up to him and insisted upon his compliance with the strike -settlement agreement , was a part of this mood and this defiance , and although committed in anger, was an act calculated, by using Clark as an example, to discourage the assertion of their rights by the employees and to discourage their continued adherence to the Union. It was an act calculated also to affect the results of the election set a few days hence . It is held that Lefkoff discharged Nellie Clark on September 24, 1951, to discourage activity and membership in the Union, in violation of Section 8 (a) (3) of the Act, and that by such discharge Respondent interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act , in viola- tion of Section 8 (a) (1). D. The second strike and the refusal to reinstate the strikers A number of employees and former strikers having heard Nellie Clark discharged, word of the event spread rapidly through the mill, and a number of employees began to stop their machines , to "gather up (their) things," and prepare to leave. Soon one of the union adherents, James A. Smith, came in with word from Alice Costello that Clark had been discharged and that the other employees should get up from their machines and walk out as soon as the fire marshall opened thedoors. Within 20 minutes after Clark's discharge some 25 or 30 employees left the plant in protest of the discriminatory discharge of Clark, Respondent ' s continued hostility towards the Union, Respondent's discriminatory actions and antiunion statements that morning, and its breach of the strike-settlement agreement. It is held that the second strike, as well as the first , was an unfair labor practice strike. 283230 0 - 54 - 13 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent . contending that the first strike was an economic strike , urged that the second was but a continuation of the first . It sought, but in my view failed , to show, in proof of this position, that the strikers ' tent was still standing on September 24, that only a few of the em- ployees carried lunches that morning. There were a few statements made in the mill that morning to the effect that the workers would not be in the plant long , but these statements may have been made after the discharge of Nellie Clark, and in any case they no more show a predetermination to stay a few moments and walk out than they indicate a distrust of what Lefkoff might do and might cause them to do in self-protection. Bertha Tilley testified there was no discussion among the employees concerning walking out again after they returned Statements made at the two strike-settlement conferences indicated a considerable distrust of Lefkoff's motives and of his intent to abide by any agreement which might be reached , and the record shows considerable hesitation on the part of the strikers to accept any settlement with Lefkoff which did not give them a contract before they abandoned the strike. The Union urged the strikers that they themselves must act in complete good faith in any agreement they made with Lefkoff and must assume that the Respondent would do likewise; and that when they re- turned to work they must return in full force and with the intent and willingness to do their work. It is held that the preponderance of the evidence indicates that the second strike was not a continuation of the first but was a new strike precipitated by Respondent that morning. The employees listed on Appendix A attached hereto were the employees who participated in the second strike. 4 On October 17, 1951, each of these employees applied unconditionally for reinstatement to their former or substantially equivalent positions . As the strike in which they were participating was an unfair labor practice strike, they were then entitled to rein- statement , regardless of whether Respondent had employed others in their places. October 18 , 191, Respondent acknowledged receipt of the unconditional applications for reinstatement , and wrote: Our company as of October 17 has a full personnel covering our needs for the present. If we find it necessary to increase our operations, we will then notify those employees from whom it received the applications . Thus in effect Respondent refused to reinstate the strikers at the time of their unconditional application , and insofar as the record shows, none of them had been reinstated up to the time of the hearing. In conclusion I find that on October 17, 1951, and at all times thereafter Respondent dis- criminatorily refused to reinstate the employees listed on Appendix A attached hereto, because of their union and concerted activities , thereby violating Section 8 (a) (1) and (3) of the Act. IV. RECOMMENDATIONS CONCERNING THE CHALLENGED BALLOTS Referred to me for recommendation is the question as to what challenged ballots of the strikers and striker - replacements should be opened and counted in the election held January 11, 1952. As the strike of September 24, 1951 , was an unfair labor practice strike and as the strikers were entitled to reinstatement at all times after October 17 , 1951, it is recommended that their ballots be opened and counted . The record established that the employees listed on Appendix A attached hereto participated in the second strike . To be opened and counted under this recommendation will be the ballots of all employees listed on said Appendix A whose ballots were challenged. As the names of Nellie Clark, Mildred L. Carter, and Max Cherny did not appear on the lists of challenged voters attached to the Regional Director ' s report on election, challenged ballots, and recommendation to the Board , it is assumed that their ballots, if cast , were not challenged. 4Myrtle Slaton, although she was a striker , is not included on this list because she was a supervisor. She was forelady over the finishing department, a job comparable to that of Kitty Lou Smiddie over the sewing department. Slaton described her own duties as "mostly to get the work out," but stated she had no authority to hire or fire. Superintendent Fred Cofer testified with respect to the authority of Slaton and Smiddie thathethought "they would have authority to hire or fire or effectively recommend changes ." When, during a strike-settlement conference, the parties were working out an eligibility list for the proposed consent election, it was agreed that both Smiddie and Slaton should be excluded as supervisors . In its Decision and Direction of Election dated December 13, 1951, the Board held that both of these fore- ladies were supervisors . In his report on election , challenged ballots , and recommendation to the Board, the Regional Director concluded that Slaton was a supervisor and therefore not an eligible voter. THE RIVOLI MILLS, INC. 183 Although the name of Carmilla Zollo appears on Appendix A of the Regional Director's said report , the list challenged by Respondent at the election on the ground that they were strikers who had been replaced , the evidence before me did not indicate that a person of that name participated in the second strike. The evidence established however, that Camilla Zolla, whom I find to be the same person , was in the first strike, and was one of those who worked on Friday, September 21, and Saturday, September 22,1951 On this testimony I find that she was not hired as a replacement for those who went on strike September 24, the proof showing that she was already an employee before September 24. As she was not a striker - replacement, and as there appears no other reason why her ballot should not be counted , I recommend that it be opened and counted. There was uncontradicted, testimony that the only ones who struck on September 24 were those listed on Appendix A attached hereto, and Myrtle Slaton, which list does not include any of the names listed on, Appendix B of the Regional Director' s report , the list challenged by the Union on the ground that they were striker -replacements . Respondent' s written reply, dated October 18, 1951 , to the strikers' unconditional offer to return to work, shows that by that date , just over 3 weeks after the beginning of the strike , Respondent had.a full complement of employees , which must have involved the hiring of some striker - replacements . That Re- spondent hired striker - replacements was shown also by the fact that it was eager to get the strikers back to work after the first strikebecause it had some orders to get out, which orders it could not have filled with the small group of employees who remained at work during the second strike. It is held that the employees listed on Appendix B of the Regional Director's report were striker - replacements , a conclusion not challenged at the hearing , and were not therefore eligible voters ; and it is recommended therefore that their ballots not be opened and not be counted. - Referred to me is the question as to whether Carrie Pylant's ballot should be opened, and counted . Pylant was an old employee , having worked for Respondent since about 1938 or 1939. She was a skilled operator ; and for long before the election had made samples of the some 55 or 60 garments made by Respondent , and when orders came in on the samples , she showed other operators how to perforqi their operation on the garment Although she had done this work for some time before the$; she was called to a meeting with management and other supervisors in August 1951 , and given the job of sample-making and instruction -giving.GThis was the only super,isors' meeting she ever attended. Pylant testified that slie was classified as a steward, and was the onlyemployeewith that classification. In addition to making samples and instructing, she set up lines of machines when a new garment was about `to go into pro- duction She did not assign work to einpfoyees except on occasion to relay a specific assign- ment from the floorlady or Mrs. Lefkoff, v16e president, who worked in the plant after the strike in Smiddie's place as floorlady. Pylani was in charge of quality,, and had authority to return bad work to a girl and show hei how to d'o the work properly She had no authority to hire or fire, promote or demote. of effectively [o recommend any such action- -although she had the same right as other employees to recommend the employment of someone. At the first strike-settlement conference when the 'pa'rties were discussing the arranging of a consent election, it was agreed that Cai i@ Pylant should be allowed to vote Pylant was paid by the hour She had no authority to reprimand other employees. Considering all the evidence, it is held that Carrie Pylant was not a supervisor within the meaning of the Act, and it is rec- ommended , therefore, [hat her ballot be opened and counted. With respect to the challenged ballot of Alice Davis, the Regional Director, on page 8 of his report on election, challenged ballots, and recommendation to the Board , having set forth the facts concerning her employment developed by his investigation, concluded that Davis was not a temporarily laid-off employee but was in fact a striker-replacement. He concluded that her ballot should be considered in ihesame category with those of the other striker - replacements. No exceptions were taken By Respondent to either this finding or anything else in said report Nothing in the Board's dider directing hearing on challenged ballots referred to me, con- cerning this challenge , 0broader issue than that posed by the Regional Director . It is rec- ommended that , as Alic@ Davis was a striker - replacement , her ballot should not be opened and should not be counted. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities , set forth in section III, above , occurring in connection with Re- spondent' s operations 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 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VI. THE REMEDY Having found that Respondent has engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Respondent having discharged and refused to reinstate Bertha Tilley , Nellie Clark , and the other strikers listed on Appendix A attached hereto , because of their union and concerted activities , I recommend that Respondent offer to each of them immediate and full reinstate- ment to his former or a substantially equivalent positions without prejudice to his seniority and other rights and privileges and make each whole for any loss of pay he may have suffered by reason of Respondent' s discrimination against him, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from August 24, 1951, in the case of Tilley, from September 24, 1951 , in the case of Clark, and from October 17, 1951, in the case of the other strikers , the dates of the discrimination against them , to the date when , pursuant to the recommendations herein contained , Respondent shall offer them reinstatement , less the net earnings of each during said period , 6 Loss of pay shall be determined by deducting from a sum equal to that which these employees would normally have earned for each quarter or portion thereof, their net earnings , if any, in other employment during that period . Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter The quarterly periods described herein shall begin with the first day of January , April , July, and October .? It is recommended further that Respondent make available to the Board upon request payroll and other records, in order to facilitate the checking of the amount of back pay due 8 Because of the Respondent's unlawful conduct and its underlying purpose and tendency, I find that the unfair labor practices found are persuasively related to other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of the Respondent ' s conduct in the past 9 The preventative purpose of the Act will be thwarted unless the order is coextensive with the threat . In order , therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices , and thereby to minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act , I will recommend that Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Rivoli Mills, Inc., is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act 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 By discriminating in regard to the hire and tenure of employment of Bertha Tilley, Nellie Clark, and the other employees listed in Appendix A attached hereto , thereby discouraging membership and activity in the above -named Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interrogating its employees concerning their union membership and activities, by threatening to discharge them if they continued working for the Union , and by threatening its employees that if the union movement were successful they would not thereafter be permitted to transfer from one machine to another , Respondent interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating Section 8 (a) (1) 5 By said acts and other acts Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. 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. ] SThe Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 6Crossett Lumber Company, 8 NLRB 440, 497-8; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. i F. W. Woolworth Company, 90 NLRB 289. OF. W. Woolworth Company, supra ON. L. R. B. v. Express Publishing Co., 312 U. S. 426. HUGHES-VERTIN LIME COMPANY 185 APPENDIX A Frances Avery Hazel Judge Max Cherny Clara Lusk Mildred L. Carter Joyce Kendrick Jewell Cox Ruby A. Martin Ollie Chambers Virgie Mahan Mary Durham Helen Morgan Ruth Crabtree Ona Mason Winnie Lu Gaither Dorothy Poe Florine Fitzgerald Imogene Parsons Lucille Gossett Martha Short Dorothea Garren Stena Ransom Gertrude Guffee James A. Smith Nellie V. Green Virginia Vitatoe Elizabeth Hart Edna Vandergriff Mary Gunter Lena Brock Dorothy Headrick Bertha Tilley George Hayes Cynthia Chambers Geneva Kelly Nellie Clark HUGHES-VERTIN LIME COMPANY and UNITED CEMENT, LIME AND GYPSUM WORKERS INTERNATIONAL UNION, AFL, Petitioner,. Case No. 20-RC-2056. April 17, 1953 DECISION AND ORDER Upon a petition duly'filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Clement W. Miller, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent em- ployees of the Employer. 3. No question affecting commerce exists concerning the representation of employees of the Employer within the mean- ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Employer and Tri-Counties Building and Construction Trades Council, AFL, the Intervenor, assert that their current contract is a bar to this proceeding. The Petitioner contends that the contract, which contains a union-security clause, is not a bar because the Intervenor was not in compliance on the operative, or Mill-B, t date of the contract's automatic renewal clause, nor at the time the Petitioner requested recognition. After a Board-directed election, 2 the Intervenor was certified on July 30, 1951, as the bargaining representative of the Em- ployer's production and maintenance employees. On January 25, 1952, the Employer and the Intervenor executed the union-shop contract asserted herein as a bar, effective January 1, 1952, for a 1-year period, with annual automatic renewal thereafter, absent written notice by either party of its desire to change the agreement at least 60 days before any anniversary date. I See Mill-B, Inc., 40 NLRB 346. SCase No. 20-RC-1355 (not reported in printed volumes of Board decisions). 3Article III of the contract provides: Section 1. Membership in the Union shall be required as a condition of employment on and after the thirtieth (30th) day following the beginning of such employment or transfer into the bargaining unit , or the effective date of this Agreement , whichever is the later. 104 NLRB No. 20.