Jolog Sportswear, Inc.

886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amount he would have earned from July 17, 1959, to the date of offer of reinstate- ment less his net earnings during that period. Backpay shall be computed in accordance with the Board's Woolworth formulas Loss of pay shall be determined by deducting from •a sum equal to that which he would have earned for each quarter or portion thereof his net earnings in other employment during that period. Earnings in one particular quarter shall have no effect upon the backpay liability for any other quarter. Having found that the Respondent has unlawfully refused to recognize or to bargain with the Union as the representative of its employees in an appropriate unit, it will be recommended that the Respondent be required upon request to extend recognition to and to bargain with the Union. 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. District Council of Painters #36, Brotherhood of Painters, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discharging on July 17, Arthur L. Moore, Bobby L. Foster, James B. Trotter, Willie Roland Pugh, Clarence Wilson, Barnell Sims, Arthur O'Neil Craig,. Philip Ghoston, Raymond L. Brown, John W. Wilber, S. D. Moncreif, Domingo- Mata, David E.. Brown, David J. Soto, L. S. Campbell, Claude R. Moffett, Irwin Wilson, Johnnie Walker, Robert E. Waggoner, Cecil Jeffries, Norman A. Rod- riguez, Armando Acosta and Luis Montes, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. All production employees, apprentices, helpers, and assistants at Respondent's plant excluding clerical employees, office employees, and supervisors constitute a unit appropriate for the purposes of collective bargaining with the meaning of Section 9(b) of the Act. 4. On and since July 17, 1959, the Union has been and is the majority repre- sentative of the employees in the appropriate unit for purposes of collective bar- gaining in respect to rates of pay, wages, hours of employment and other terms and conditions of employment. 5. By refusing on July 17, 1959, to recognize and to bargain with the Union the Respondent has engaged in and is engaging in unfair labor practices within the: meaning of Section 8 (a) (5) of the Act. 6. By the discharges, by unlawfully refusing to bargain with the Union, and by threatening the discharge of Union advocates, the Respondent has interfered with,, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in and is engaging in unfair labor practices. within the meaning of Section 8(a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 8F. W. Woolworth Company, 90 NLRB 289. Jolog Sportswear, Inc. and Jonathan Logan, Inc. and Pearl McAbee Wyatt and International Ladies' Garment Workers" Union, AFL-CIO, Party to the Contract Jolog Sportswear, Inc. and Pearl McAbee Wyatt International Ladies' Garment Workers' Union, AFL-CIO and" Pearl McAbee Wyatt. Cases Nos. 11-CA-1433, 11-CA-1479, and 11-CB-91. August 04,1960 DECISION AND ORDER On April 1, 1960, Trial Examiner A. Bruce Hunt issued his Inter- mediate Report in the above-entitled proceeding finding that the, 128 NLRB No. 108. JOLOG SPORTSWEAR, INC. AND JONATHAN LOGAN, INC. 887 Respondent-Company i had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent-Company and the Respondent-Union- had not engaged in certain other unfair labor practices, and recom- mended that those allegations of the complaint be dismissed. There- after the Respondents filed exceptions to the Intermediate Report and supporting briefs, and the Charging Party's attorney filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Bean, and Fanning]. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only insofar as they are consistent with the findings, conclusions, and order hereinafter set forth 2 We do not agree with the Trial Examiner that the Respondent- Company violated Section 8 (a) (2) and (1) of the Act by contributing financial or other support to the Respondent-Union and by entering into a collective-bargaining agreement with the Union. At least since 1955, the Respondent-Union and Jonathan Logan, Inc., have been parties to a collective-bargaining agreement which covered Logan's employees in the New York metropolitan area. In 1957, the Union learned of the existence of the plant in South Carolina operated by Jolog Sportswear, Inc., a subsidiary of Logan. The Respondent-Union first took the position that this plant was an accre- tion to Logan's New York City operations, and was therefore covered by the New York contract. Subsequently, the Respondent-Union abandoned this position, decided to organize the Spartanburg em- ployees and requested Logan's representative, Irving Hochberg, for permission to address the employees in the Spartanburg plant. On January 22, 1952, the Spartanburg employees were assembled in the plant cafeteria. Hochberg, in the presence of plant manager Farber, introduced Kehrer, the Respondent-Union's regional director in the 3 As a matter of convenience the two Companies involved in these proceedings, which are closely allied, will be referred herein as the Respondent -Company. a The Trial Examiner found, inter alia, that the evidence did not sustain the General Counsel's allegation that the Respondents had violated Section 8 (a) (1) and (2) and Section 8(b) (1) (A) of the Act, respectively, by making the parties' New York contract applicable to Jolog Sportswear's plant in Spartanburg , South Carolina. He also found that the record does not sustain a finding that the Charging Party was denied reinstate- ment in violation of Section 8(a) (3) and (4) of the Act because of her antiunion activities and filing of charges before the Board. As no exceptions were filed to these findings, we adopt them pro forma. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southeastern States as a man with whom he had had prior business relationships in connection with other plants of Logan. Kehrer then addressed the employees, explaining to them the advantages of mem- bership in the Union. In the following question-and-answer period Kehrer pointed out that under the right-to-work law of the State of South Carolina the employees had a right to refrain from joining the Union, but that on the other hand he did not think that the Respondent-Company would discharge any one for joining the Union. No remarks of any coercive nature were made by Kehrer. After his talk ended, two of Kehrer's assistants distributed applications for membership and copies of a union booklet. A box was placed near the timeclock so that the employees could drop their applications in it. This box was removed shortly thereafter, apparently on the fol- lowing day, and no cards that were deposited in it ever reached the Respondent-Union. Kehrer's speech, including the question-and- answer period, lasted for about 1 hour in the afternoon. At its con- clusion Jolog's manager informed the employees that if they returned to work they would be paid for the entire day. On January 30, the payday following this incident, Jolog attached to each employee's paycheck a notice to the effect that the Company would not discharge or otherwise interfere with any person who en- gaged in union or antiunion activities as long as such activity would not affect that person's work or the Company's production schedule, and that membership or nonmembership in any union would not affect anybody's standing with the Company. There is no credited evidence in the record that spokesmen for any antiunion group among the employees requested equal rights to ad- dress the employees in the plant on plant time. However, both union and antiunion activities were carried on vigorously by circulation of literature outside of the plant and by solicitation of employees at their homes. The Charging Parties' attorney drafted circulars and person- ally distributed them at the plant gate. The Union had to call in five organizers from out of State to carry on its organizing drive. There is no credited evidence that during that period the Respondent-Company in any way violated its neutrality in this situation. On February 20, 1959, a card check was conducted by a member of the South Carolina Department of Labor. The check showed a majority for the Re- spondent-Union. The parties' representatives then met and agreed on an oral collective-bargaining contract whose terms and conditions were accepted by the membership of the Respondent-Union at a meet- ing on March 5, 1959. The Board has never held that mere permission to a union to address employees on company time is per se a violation of Section 8 (a) (2) of the Act. Such conduct, however, has been found to violate JOLOG SPORTSWEAR, INC. AND JONATHAN LOGAN, INC. 889 this section of the Act where other unlawful assistance has occurred 3 or where the Employer has discriminated between competing unions seeking to represent its employees.' In the instant case, however, the record sustains a finding that the Company maintained its neutrality with respect to the Respondent-Union's 1959 organizing drive. For instance, the Company resisted the Respondent's attempts to extend coverage of the New York contract to the Spartanburg plant. Under these circumstances, we do not believe that this isolated incident, followed as it was by the Respondent-Company's neutrality notice to the employees on January 30, 1959, was more than a trivial occurrence which, standing alone, does not warrant the finding of a violation of Section 8 (a) (2) and (1) of the Act.' Consequently, we find the majority status obtained by the Respondent-Union was not tainted, and that the Respondent-Company did not violate the Act by entering into a collective-bargaining agreement with the Respondent- Union. Accordingly, as we have adopted the Trial Examiner's find- ings with respect to the other complaint allegations, we shall dismiss the consolidated complaint herein in its entirety. [The Board dismissed the complaint.] 8 McCulloch Motors Corp., 120 NLRB 1709. 4The Bassacl Company, Spring Valley Division, a Division of Stewart -B'arncr Corpo- ration, 127 NLRB 1552. 5 Compare Coppns Engineering Corporation v. NL.R .B., 240 F. 2d 564, 573 (C.A. 1). INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding involves allegations that the Respondent Companies, Jolog Sportswear, Inc., and Jonathan Logan, Inc., violated Section 8 (a)(1), (2), (3), and (4) of the National Labor Relations Act, 61 Stat. 136, and that the Respondent Union, International Ladies' Garment Workers' Union, violated Section 8(b) (1) (A) thereof. On September 15 and 16, 1959, I conducted a hearing at Spartanburg, South Carolina, at which all parties were represented . The motions of the Respond- ents to dismiss the consolidated complaint are disposed of in' accordance with the determinations below. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS of FACT 1. THE RESPONDENT COMPANIES Jonathan Logan, Inc., herein called Logan, is a New York corporation which operates plants in various States for the manufacture and sale of women's dresses. Jolog Sportswear, Inc., herein called Jolog, a South Carolina corporation and a subsidiary of Logan, operates a plant at Spartanburg, South Carolina, where it manufactures dresses for Logan . During 1958 Logan shipped dresses valued at more than $ 1,000,000 from its place of business in New York to points outside that State. During the same year, Jolog shipped dresses valued in excess of $500,000 to points outside South Carolina. There is no dispute, and I find, that the Companies are engaged in commerce within the meaning of the Act. II. THE RESPONDENT UNION International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization which admits to membership employees of the Companies. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The issues We are concerned here with events at Jolog's plant in Spartanburg. Our basic issues are (1) whether a collective labor agreement between the Union and various employers, including Logan, which was applicable to various plants in the Metro- politan New York area, was applicable also to the Spartanburg plant at a time when the Union did not represent a majority of employees there; (2) whether the Respondent Companies assisted and supported the Union by (a) permitting a repre- sentative of the Union to address employees and to distribute union cards on com- pany time and property, and (b) entering into an oral agreement with the Union which covered the working conditions of employees at the plant in Spartanburg and which provided inter alia for wage increases, a checkoff, and employer contri- butions to a health and welfare fund; (3) whether the Respondent Companies threatened reprisals against the Charging Party, Pearl Wyatt, because she expressed a desire to solicit her fellow workers to oppose the Union; and (4) whether the Respondent Companies discharged Wyatt because of her antiunion sentiments and actions, including the filing of charges against all Respondents and the execution of an affidavit for a field examiner. B. The events During 1957 Jolog began operations at the Spartanburg plant. Elmer T. Kehrer, the Union's Regional Director in the Southeastern States, testified for the Union that in 1957 he learned of the existence of the plant during a conversation with a repre- sentative of Logan, Irving Hochberg, and that in 1957 and again in 1958 he took the position in conversations with Hochberg that a contract between the Union and various employers, including Logan, was applicable to the Spartanburg plant. That contract, herein called the New York contract, is dated March 1, 1955, and is be- tween an association of employers, on the one hand, and the Union and certain of its locals in the area of New York City.' Logan is a member of the association and thereby a party to the contract. The bargaining unit consists of employees in the Metropolitan New York area. The contract specifies certain wage rates, contains a union-shop provision which is not alleged to be invalid per se, provides for con- tributions by employers to certain retirement and health and welfare funds, and recites inter aha: Seventh: Subsidiary and affiliated firms or corporations of members of the Association shall, for the purpose of this Agreement, be deemed to be members of the Association and bound by all the terms of this Agreement... . * Ninth: The Association agrees that all of its members who produce all or part of their garments on their own premises will maintain union shops [as defined].. . * * * * * * * Twentieth: (j) No . . non-union worker employed by the firm shall per- form any work of the crafts enumerated in this Paragraph Twentieth. For a violation of this provision, the firm shall become liable to and pay to the Union a sum equal to the minimum weekly wage scale of such craft for each violation. Kehrer also testified that in 1957 Hochberg would not "commit himself" on the applicability of the New York contract to the Spartanburg plant, but that in 1958 Hochberg said that attorneys for Logan had advised that the contract did not apply to the plant. Kehrer testified also that thereafter, during the summer of 1958, officials of the Union in New York advised him that the "New York agree- ment [was not] effective in South Carolina," and that later he decided to send union representatives to the plant in an effort to organize it. There is no testimony contrary to that of Kehrer. In accord with his testimony, the record is clear that Jolog's employees had a regular workweek of 40 hours instead of 35 hours as provided in the contract, that Jolog paid its employees less than the wage rates set forth in the contract, that Jolog did not require its employees to become members of the Union, and that neither Jolog nor Logan made contributions to the above- mentioned retirement and health and welfare funds on behalf of Jolog's employees. 'The contract expired during 1958 but was succeeded by another contract which contains identical provisions in all respects material here. JOLOG SPORTSWEAR, INC. AND JONATHAN LOGAN, INC. 891 During late September or early October 1958, one Geller, then manager of the plant, asked Wyatt, the Charging Party who is strongly antiunion, to campaign among the employees in opposition to the Union, saying to Wyatt that the Union "was talking about coming down," that he and Hochberg did not want the Union to represent the employees, and that he would appreciate Wyatt's talking to her fellow workers. Wyatt had no occasion to campaign against the Union during 1958, however, because the organizational efforts occurred later .2 During the forepart of January 1959, Kehrer took steps to organize the plant. He testified that he assigned an organizer named Ferguson to solicit members among the approximately 140 production employees, that he also telephoned Hochberg at the latter's office in New York and requested permission to address the employees in the plant, and that later Hochberg telephoned him and approved the request. On January 22 the employees were assembled in the plant's cafeteria near the ,end of the working day to hear an address by Kehrer. The plant's new manager, Harry Farber, who had succeeded Geller during November, was present along with Hochberg and Organizers Ferguson and Bonanno. Hochberg introduced Kehrer, saying that the two men had had business relationships in connection wtih organized plants of Logan and that Hochberg had invited Kehrer to address the employees.3 Kehrer spoke to the employees about the advantages to be gained from membership in the Union and about working conditions at Logan's plant in Tennessee. There is no contention that Kehrer's remarks were coercive. During a question and answer period, Kehrer responded that a State right-to-work law as- sured the employees' right to refrain from joining the Union and, on the other hand, that he did not think that Jolog would discharge anyone for joining the Union. There was no reference to the New York contract. During Kehrer's remarks, the two organizers distributed applications for membership and copies of a union booklet. A box was placed in the plant so that employees could drop signed applications into it. Wyatt, the Charging Party, did not hear Kehrer' s address. She was at her home, having been absent from work for about 3 weeks due to illness? Shortly after Kehrer spoke, Wyatt learned of his address when a fellow employee telephoned her. Wyatt, who is strongly opposed to the Union, then ascertained the name of Jolog's local attorney, Carlisle Bean, and promptly telephoned him. She testified without contradiction, and I find, that she told Bean that she had learned of Kehrer's address, that Bean confirmed that the address had been made, that Bean agreed -with her that Hochberg was opposed to having the Union represent the employees, that she told Bean that she would like to go to the plant in order to campaign against the Union, and that Bean suggested that she communicate with Plant Manager Farber Wyatt testified further, and I find, that that evening by telephone she lo- cated Farber at a local hotel, that she told him that she would like to return to work and to urge her fellow employees not to join the Union, that both she and Farber expressed opposition to the Union, and that he told her to "come on in." 5 9 The findings concerning the conversation between Wyatt and Geller are based upon her uncontradicted testimony She fixed the time as during the autumn of 1958, but her work record, showing absences from work, coupled with the fact that Geller's employment as plant manager ended during November, establish that the conversation occurred no later than October 11. 3 The record does not disclose the number of plants which are operated directly or indirectly by Logan and at which the employees are represented by the Union The record does disclose, however, that one such plant is located in Tennessee, a State which consti- tutes a portion of Kehrer's territory as a Regional Director of the Union. 4 Wyatt testified that her absence was because she thought that she was pregnant. Her various absences are discussed below in connection with the refusal to reinstate her after another illness. e Farber testified that Wyatt telephoned him during the evening of January 22 and asked to be permitted to return to work, but he testified further that he did not recall any mention of the Union by Wyatt. I credit the testimony of Wyatt in this instance. Although Wyatt's credibility was attacked vigorously, and although I cannot credit her in some instances as described below, I believe that she spoke with Farber about cam- paigning in the plant against the Union. There are several reasons. First, Wyatt's hostility toward the Union runs deep. Second, she had expressed to Attorney Bean a desire to campaign in the plant against the Union. Third, her desire to return to work on January 23, the last day of a workweek, after a 3-week absence, was because of her hostility toward the Union Under these circumstances, bearing in mind that Wyatt followed an unusual reinstatement procedure of locating Farber at a hotel , I do not believe that she would have failed to state her real reason for desiring to return to work. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 23 Wyatt returned to work. After arriving at the plant, she talked with Farber. Their testimony concerning the conversation or conversations is con- flicting. According to Wyatt, before work began she said to Farber that she was against the Union, that he had said that he was against it too, and that she would like to talk to employees because she "would hate to see them get mixed up in" the Union. Wyatt testified also that Farber answered, "If you want to work, work," that she repeated that she would like to talk with employees, and that he said that he would discharge her if she organized a group of employees against the Union. About 1 hour later, according to Wyatt, Farber saw her speak to an employee, whereupon he came over to her and told her to stop talking and to work, and that if she was not going to work, to go home. That afternoon, according to Wyatt, she and Farber talked again. She testified that Farber observed her returning from the restroom, that he "jumped on" her and asked for papers which reflected her production for the day, that she asked why he was mad at her, that he denied being mad, and that her production papers were turned over to him at quitting time that day. In contrast to Wyatt's testimony, Farber testified that he could not recall talking with Wyatt before work began that morning, that he never discussed the Union with her, that he did not know whether she was a union member or that she was opposed to the Union, and that he did not speak to her that day except about her work. In resolving the conflicts in testimony, I note first that Farber, a truthful witness in some respects, did not impress me as truthful when he denied knowing of Wyatt's opposition to the Union and having spoken with her about the Union when she telephoned him at a local hotel. But Wyatt also impressed me as an unreliable witness and I cannot credit her testimony that Farber threatened to discharge her if she organized a group of employees against the Union. Nor can I credit her testi- mony that later that day Farber "jumped on" her for some reason other than her failure to meet production standards. There are several reasons. First, Wyatt's opposition to the Union, admittedly strong, is emotional to a considerable extent and I do not regard her as an objective witness. In addition to my observations of Wyatt in this respect, her affidavit of March 27 recites that her physician told her during an illness that she would have to forget about Farber and the Union because her "nerves were bothering" her. Second, her testimony that Farber asked her for production papers during the afternoon of January 23 is disputed by two affidavits which she executed within 3 months of the alleged incident. In one affidavit she recited that the alleged incident occurred a "day or two" later. In another she fixed the time as "About a week later." Third, Wyatt testified that at the time of the second and third alleged conversations with Farber on January 23, her earnings at piece rates for that day were higher than the guaranteed minimum pay of $1 hourly. If her earnings had been so high, Farber may have had little or no reason to "jump on" her for inattention to her work. But Jolog's records show that on that day Wyatt earned only $6.73 at piece rates for 8 hours and that Jolog made up the difference by adding $1.27. When the variance between the records and her testimony was shown to Wyatt, her explanation was that "somebody cut the piece rates on it then, from what it was when we started to work that morning [January 23]." She explained also that she had testified that she had earned more than the guaranteed minimum because she had "figured at the rate we had been getting." The defect in this testimony is that Wyatt received a paycheck for January 23, the only day in that workweek that she worked, and, therefore, she must have known since her payday that she had not "made production" on January 23. She testified that she kept records of her earnings. Fourth, Wyatt's effort to paint herself in an unduly favorable light is reflected in her testimony concerning her many absences from work. As detailed elsewhere herein, her attendance record was poor. This fact is demonstrated by Jolog's records. According to Wyatt, "there is something wrong with the records." But all counsel are agreed that the records are accurate. Moreover, Wyatt's testimony that she worked regularly except when she was ill or when work was unavailable cannot be credited 6 Fifth, Farber is a hard task- master who, according to Wyatt, "kept after everybody" and spoke of getting "It is true that upon some occasions Wyatt did not work a full 40-hour week because there was insufficient work, and these occasions are reflected by records which show when other employees doing the same type of work did not work full weeks. But there were many weeks when those other employees worked 40, or nearly 40, hours and Wyatt worked many less Although Wyatt was ill at times, the record will not support a finding, and I do not believe, that Wyatt's health was such that, week after week, she was unable to work as many hours as her associates. I believe that Wyatt was absent from work upon many occasions for reasons other than illness and slack work. JOLOG SPORTSWEAR, INC. AND JONATHAN LOGAN, INC. 893 "production out." The Union's organizational campaign was met by antiunion activity, described below, and one result was that production dropped. The result affected Farber's income which is based partly upon production. As a consequence, Farber spoke to all of the employees. He was aware that there were both proponents and opponents of the Union and he testified without contradiction that he told all employees to cease wasting time, to try to produce as much as possible, and that it was immaterial to him whether employees belonged to the Union. In addition, Bobbie Owensby, a union adherent, testified without contradiction that upon two or three occasions Farber called the employees together and threatened to close the plant unless the employees increased production and ceased talking about the Union in the plant. Sixth, there are an undisclosed number of supervisors for the approx- imately 140 employees, but Farber is the only supervisor who is alleged to have threatened any employee and he is alleged to have threatened only Wyatt. In summary, although Farber impressed me unfavorably in denying that the Union was mentioned in a conversation with Wyatt and that he knew of her union hostility, the circumstances do not warrant a finding that Farber threatened to discharge Wyatt if she campaigned against the Union. Doubtless he rejected her proposal that she be allowed to campaign against the Union during working hours and doubt- less he told her in substance that working hours were for work, not for conversation. The latter remark is consistent with his remarks to all employees. The alleged threat to Wyatt is inconsistent with his remarks to all other employees. We come now to the circumstances under which Wyatt signed the original charges against the Respondents. Wyatt testified that after work on January 23, she tele- phoned Bean, the Companies' local attorney, that she complained about alleged remarks and conduct of Farber that day, and that Bean replied that he would "look into it." Bean as he acknowledged during the hearing, promptly contacted another local attorney, Thomas A. Evins, who soon became one of Wyatt's attorneys. According to an affidavit which Wyatt executed, about 5 minutes after her conversa- tion with Bean, Evins, with whom she had been unacquainted, telephoned her and said that Bean had asked him to call her. The affidavit recites also that Wyatt and Evins "discussed the events of that day including what Mr. Farber" allegedly had sa,d to Wyatt, that Evins said that he would see "what could be done about it," that during the next week Evins telephoned Wyatt, saying that he would like to file charges against the Companies and the Union, that on the next day (January 29), Evins brought the charges to Wyatt who signed them after (1) saying to Evins that she did not want to sign unless Bean knew of the matter and (2) being assured by Evins that Bean was fully informed. The affidavit recites further, and Wyatt testified, that Evins told her that there would be no financial cost to her.7 On Janu- ary 30 the initial charges were filed. Two days before those charges were filed, Farber requested, and Bean drafted, a notice from Jolog to the employees.8 The notice, which was attached to the pay- check of each employee on the day that those charges were filed, is as follows: Your employer wishes to repeat that it will not discharge or otherwise inter- fere with any person who engages in union or antiunion activity so long as such activity does not affect that person's work or our production schedule. Joining or staying out of a union is your own free choice. Membership or non-membership in any union will not affect your standing with this company. JOLOG SPORTSWEAR, INC. 4 Wyatt's affidavit was offered as an exhibit by the Union . It was received without objection. Bean was not a witness but, as noted, he acknowledged having contacted Evins. After receipt of the affidavit in evidence, Evins was called as a witness by the Union. Ile did not testify with respect to the affidavit. He did testify, however, that he was retained by someone other than the Companies or Wyatt to engage in antiunion activities described hereinafter. I declined to require him to identify such client or clients 8 Farber testified that his purpose was to eliminate worry which might adversely affect the employees' work Farber's testimony and affidavit are conflicting, however, on the point whether the notice to employees was suggested by Kehrer, the Union's regional director. According to the affidavit, Farber had been approached by some employees who were "confused," and Farber telephoned Kehrer who suggested that the employees be told in writing that they could join or refrain from joining the Union as they wished. While testifying, Farber was shown the affidavit and he said that it was in error and that he had not called Kehrer although he may have discussed the matter with Organizer Ferguson. 894 . DECISIONS .OF NATIONAL LABOR" RELATIONS BOARD At about the time that the original charges were filed, union and antiunion activities were well under way. Organizers were assigned by the Union to distribute handbills and to solicit memberships _at employees' homes and outside the plant.9 An organizational meeting was held at a local union hall. The antiumon activities, on the other hand, involved the distribution outside the plant of several types of handbills. Two types were critical of the Union, called attention to the State's right-to-work law, and urged employees not to "sign away [their] rights." The record does not disclose the identity of any person who distributed these handbills which, according to Wyatt, she saw "all over the plant." Wyatt testified also, how- ever, that, before she signed the original charges, both Bean and Evins told her that antiunion handbills would be distributed. Evins testified that he saw the draft of one of the handbills before it was printed, that he had "some idea of who might have . . . made up" the other one, and that he was retained by someone other than a party to this proceeding to render services in connection with the composition or distribution of both handbills. A third type of handbill, bearing Evins' signature, to each of which was attached a postage paid card addressed to Evins, was also dis- tributed outside the plant. Evins testified that he composed the material on the handbills and postal cards, arranged for their printing, and that he distributed them. The handbills recited that Evins had been asked by employees "to help safeguard' their rights," that the employees whom he represented wanted support to obtain an election, that the Union was opposed to an election, that the Union was interested only in the collection of dues, and that the Union had not proved that it could do anything in return for dues. Each postal card contained space for the signature of an employee to a statement that he or she (1) was opposed to representation by the Union and (2) asked Jolog to request an election . Evins testified that enough handbills were printed to "reach" all employees. Many of the handbills were brought into the plant, but the record does not disclose how many postal cards were mailed to Evins. About February 18, nearly 1 month after Kehrer addressed the employees, he spoke with Hochberg and claimed that the Union had been designated by a ma- jority of the employees Kehrer said also that, because there was opposition to the Union in the community, an impartial person should conduct a card check. Accordingly, on that day, Kehrer and Hochberg entered into a written agreement which described a bargaining unit and provided that a card check be conducted by Nick Collins, a representative of the South Carolina Department of Labor. On February 20 Collins made the check and reported that the Union represented a majority of employees in the unit. There is no dispute concerning the accuracy of Collins' determination. Promptly after the card check, Kehrer and Hochberg, who had negotiated before, began negotiations. Within 2 hours they reached an accord. The agreement provided inter alia for a general wage increase, paid holidays, hours of employment, and contributions by Jolog, but not by employees, to the Union's Southeastern Regional Health & Welfare Fund and Retirement Fund. The contributions are made on behalf of all employees, not solely union members. The signed applica- tions for membership authorize the deduction of dues, and the agreement provides for the checkoff in such instances.10 The agreement is oral and of unfixed dura- tion, and in this connection Kehrer testified that there is an oral agreement between Logan and the Union covering working conditions at the plant in Tennessee, that the Union also represents Logan's employees at a plant in Arkansas, and that the agreement with Jolog was not reduced to writing because the Union and the Companies have sought to negotiate an agreement with uniform wages and hours in the three plants.ii On March 5 members of the Union met at a local union hall and, after hearing the terms of the oral agreement, voted to approve it. 9 The evidence will not support a finding that representatives of the Union engaged,, in organizational activities in the plant except on January 22. 10 Although the record does not recite specifically that the checkoff is applicable only to employees who have authorized it, a finding that the checkoff is more widespread is not warranted. The oral agreement does not contain a union-security provision and the General Counsel , in his brief, asserts that the agreement provides that Jolog shall "honor check-off cards " The Union, in its brief, says that the agreement provides for a "Check- off -of union dues, authorized by the union members." u It is not unusual for the Union to have oral agreements in the Southeastern States. Kehrer testified without contradiction , naming some employers , that approximately 10 percent of the Union 's contracts in those States are oral. JOLOG SPORTSWEAR, INC. AND JONATHAN LOGAN, INC. 895 C. The question whether the New York contract was applicable to Jolog's plant The complaint alleges that the New York contract has been applicable to Jolog's plant since mid-1958. We have seen that Jolog is a corporate subsidiary of Logan, that the latter is a member of the association which negotiated the New York contract, and that provision numbered "Seventh" thereof recites that corporations which are subsidiaries of members of the association shall be deemed to be members also and to be bound by the provisions of the contract. According to the General Counsel, the contract by its terms was applicable to Jolog's plant before the Union acquired majority status there, and he points to the admission of Kehrer, the Union's regional director, that Kehrer took the position in dealing with Hochberg that the contract was applicable to the plant. On the other hand, the Respondents, pointing to other provisions of the contract, some of which are not mentioned herein, contend that it is unreasonable to construe the contract as applicable to Jolog's plant; that, notwithstanding Kehrer's original position, his superiors were in accord with the Companies' counsel that the contract had no application to the plant; and that the working conditions set forth in the contract were never applied to the plant. As we have seen, the rates of pay, hours of employment, and certain other working conditions at the plant were less favorable to the Union than the conditions set forth in the contract. I do not believe that it is necessary to recite all the provisions of the New York contract to which counsel point, nor to decide whether it is reasonable to construe the contract as applicable to Jolog's plant. Even if one should decide that the contract may be construed to apply to the plant, it certainly may not be said that the contract must be so construed.12 Moreover, the Respondents agreed that it should not be so construed. When these facts are considered along with the facts that the provisions of the contract were never applied to Jolog's plant and, insofar as appears, the employees there never knew of the contract, I must conclude that this allegation of violations of Section 8(a)(1) and (2) by the Companies and Section 8(b) (1) (A) by the Union must fail. It may be noted that there is no other allegation against the Union. D. The, Companies' assistance to the Union During the course of the hearing, when the fact of the oral agreement between Jolog and the Union became known to the General Counsel, the complaint was amended to allege that the Companies assisted and supported the Union invalidly by entering into the oral agreement and by granting wage increases and other benefits pursuant thereto. The complaint already alleged invalid assistance and support by permitting Kehrer to address the employees and the simultaneous solicita- tion of union memberships on January 22, 1959, by Farber's alleged threat of January 23 to discharge Wyatt, and by the later refusal to reinstate Wyatt. The alleged threat has been disposed of above and the refusal to reinstate will be dis- cussed under section III, E, below. The circumstances under which Kehrer made his address and the nature of his remarks have been recited along with the facts that simultaneously organizers dis- tributed applications for membership and that thereafter a box was placed at a suitable location in the plant for the deposit of signed applications. The Companies point out that Kehrer voiced no coercive remarks. They point also to the antiunion activity and to Jolog's printed notice to employees, and they assert that they were neutral "between the warring forces." Kehrer was introduced to the employees by a representative of Logan and he spoke under the Companies' auspices, however. While one cannot and need not measure the precise effect of the Companies' action in permitting and apparently sponsoring Kehrer's address, and in paying the em- ployees for the time spent in listening to him, it is clear that Kehrer's speech and the simultaneous solicitations of memberships constituted an early and major tactic of the Union in organizing the plant. The Companies' conduct necessarily gave im- petus to the organizing drive. The Board long has held that such conduct by an employer is violative of Section 8(a)(2) and (1). Cf. Coast Aluminum Company, 120 NLRB 1326.13 I find that the Companies, by permitting Kehrer's speech and, the simultaneous solicitations of memberships inside the plant, assisted and supported the Union in violation of Section 8(a)(2) and (1). Since the majority status of 12 This fact distinguishes Alco-Gravure, etc, 124 NLRB 1027, and various other cases. 18 The Union cites , cases in which courts of appeals refused to enforce Orders of the Board where violations of Section 8(a) (2) had been found. It is my impression , however, that, the Supreme Court not having spoken, the Board has declined to follow those appellate cases. _ ' 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union, later acquired, is attributable, at least in part, to the invalid assistance and support, I find also that the Companies violated said sections by entering into the oral agreement with the Union and by granting improved working conditions to the employees pursuant thereto. E. The refusal to reinstate Wyatt During March 1959, following an illness, Wyatt was denied reinstatement. Our discussion of the issue begins with events during 1958. The defense is that Wyatt was an undependable employee who was replaced during one of her many absences from work, and Wyatt's attendance record is set forth in some detail below. During November 1958, Farber succeeded Geller as manager of the plant. During the same month Wyatt asked Farber for reinstatement. She had been absent from work for at least 5 consecutive weeks, which she testified was attributable to hem- orrhoids, and during the preceding months of 1958 she had worked a full 40-hour week upon only two occasions Farber testified without contradiction, and I find, that she asked that he "give her another chance to come back to work, [saying] that she would be good and behave herself, and [that he] gave her that chance," Wyatt returned to work on or about November 21. During 6 of the next 9 work- weeks, ending January 24, her attendance was not good when compared with the attendance of four other employees who did the same type of work, and, as we have seen in footnote 4, Wyatt attributed a portion of her absences during those 9 weeks to a belief that she was pregnant. As we also have seen, she returned to work on January 23. During the next 3 workweeks, ending February 14, Wyatt worked 40, 16, and 24 hours, respectively: Again she ceased work and she testified that she had a nervous condition which necessitated medical treatment. She did not return to work. Following Wyatt's cessation of work about February 11, she gave Jolog notice of her absence by the usual practice of informing Carrie West, an employee who is in charge of the payroll department.14 At an uncertain date thereafter, according to Wyatt, she talked by telephone with Farber, and in this respect we have a cred- ibility issue. Wyatt testified that on a Sunday afternoon within the next month she had her husband telephone Farber at the latter's home to say that she was ill, that she would be unable to work the next day, and that she wished to talk with Farber.15 Wyatt testified further that, after some remarks between Farber and her husband, she spoke to Farber, saying that she was unable to go to work, that Farber's response was to ask whether she had told anyone that Farber had threatened to discharge her, that she answered affirmatively, and that he ended the conversation abruptly by saying that he would "fix [her] good." We turn to the testimony of Farber. His testimony was completed before Wyatt took the stand. That unusual circumstance was brought about when Farber was called by the General Counsel under Rule 43 (b) of the Federal Rules of Civil Procedure and, because Farber had been hospitalized recently due to a heart attack, he remained on the stand (as a witness for the Respond- ent Companies in an effort to avoid recalling him during the presentation of the defense. He was not recalled. Thus, he did not specifically deny that he had the telephone conversation with Wyatt, but I believe that a fair analysis of his overall testimony warrants the conclusion that it contains an inherent denial that he ques- tioned her concerning whether she had said to anyone that he had threatened to discharge her 16 I am unable to credit Wyatt's testimony that Farber threatened to "fix" her. As already noted, she did not impress me as a reliable witness. In this instance certain additional factors weigh against crediting her testimony. When Wyatt became ill on or about February 12, she advised West of her inability to work. That being 14 Wyatt worked 24 hours during the workweek ending February 14. Unless she was absent during the forepart of that week, the last day she worked was February 11, a Wednesday. 15 Wyatt executed three affidavits, the third of which is dated April 3, 1959. In it she said that the illness began on February 7 and that the telephone call was made several days later. As we have seen, however, Wyatt's illness did not begin on February 7. Her husband was not a witness. 10 Farber was confused in the matter of dates. He testified that, about " the end of February," Wyatt telephoned and asked permission to return to work the next day, that permission was granted, that Wyatt did not return to work then, that about a week later she returned to work for 2 or 3 days, that thereafter she was absent because of illness, and that she returned to work for a day or two in late March. As we have seen, however, Wyatt did not work after about February 11. JOLOG SPORTSWEAR, INC. AND JONATHAN LOGAN, INC. 897 so, why should Wyatt have thought it necessary some days later on a Sunday after- noon to telephone Farber at his home to report somthing which he already knew, i.e., that Wyatt was unable to work because of illness? The question is unanswered. In addition, on March 3 Wyatt executed one of her affidavits and in it she did not mention the alleged telephone conversation with Farber. It follows that the tele- phone conversation had not taken place or, if it had, Wyatt did not regard its sub- stance as worth placing in the affidavit.17 At this point we come to Wyatt's recovery from her nervous condition and to Farber's refusal to reinstate her. On March 14, according to Wyatt's uncontradicted testimony, she telephoned the plant and talked with West, seeking reinstatement. 18 Wyatt testified further that, at West's suggestion, she called again that day and was told by West that Farber had said that work was scarce. About a week later, according to Wyatt's uncontradicted testimony, she telephoned again and talked with Mildred Strange, a payroll clerk, who told her that she no longer had a job at the plant.19 On the other hand, Farber testified that he told Wyatt that she was undependable, having been absent too frequently, and that someone else had been trained to replace her. It is clear, regardless of whether Wyatt or Farber be believed in this instance, that she was refused reinstatement.20 The General Counsel asserts that Wyatt was denied reinstatement because of her antiunion sentiments, her desire to campaign against the Union, the fact that she filed the original charges, and the fact that she submitted her original affidavit to the Board. The General Counsel does not contend that the Union induced the Companies to deny the reinstatement. On the other hand, the Respondent Com- panies point to evidence that Wyatt was an undependable employee and they assert that she was not reinstated for that reason. We shall examine Wyatt's attendance record in some detail. First, as recited, Farber became plant manager during November 1958 and he reinstated Wyatt late that month. Throughout that year before her reinstatement, Wyatt worked such hours as 8, 15, 16, 181/2, 20, 211/4, 24, 261/4, and 32 during workweeks when other employees doing like tasks worked 40 hours. Second, during the same period, Wyatt worked a total of 1,079 hours which compares unfavorably with the total hours worked by other employees with like tasks. Thus Nellie Blackwell worked 1,661 hours, Ruby Coggins worked 1,615 hours, and Beatrice Sanders worked 1,698 hours. A fourth employee, Mildred Poteat, worked only 1,193 hours, 114 more than Wyatt, but Poteat was substantially more dependable. This is so because, during the period under discussion, Poteat worked 40 hours in each of 22 weeks compared with Wyatt's total of 40 hours in each of only 2 weeks. Poteat was absent during periods of 9 and 3 weeks. Third, throughout 1958 Wyatt worked a full 40-hour week upon only two occasions. This contrasts with 23, 34, 35, and 38 instances in which the other four named employees worked a full 40 hours. Fourth, as set out above near the beginning of the dis- cussion concerning the refusal to reinstate Wyatt, her attendance record after being rehired by Farber was not good. Fifth, as recited in footnote 6, Wyatt's absences were not due entirely to illness and slack work. The evidence is substantial, and I find, that Wyatt could not be depended upon to be at work when needed. 17 The alleged telephone conversation also is not mentioned in Wyatt's affidavit of March 27, her second affidavit, but I do not regard this fact as significant because the second affidavit expressly does not purport to cover fully events after January 23. 18 Wyatt's affidavit of April 3 recites that the date was "Saturday a week ago," which was either March 21 or 28 depending upon the meaning of the quoted phrase to Wyatt. 18 Wyatt's affidavit of April 3 recites that, within a week after talking with West, she talked with Attorneys Bean and Evins and that Bean suggested that she call the plant again. 20 Wyatt's affidavit of April 3 recites that after the refusal of reinstatement , she "first called Evins," one of her attorneys, who told her that he would talk with Bean, the Companies' local attorney, that later that day Evins refused her request that he call Farber, that she called Bean and said that she had been discharged, that Bean asked if she had called Evins, that she answered that she had been unable to reach Evins, and that Bean said that he could not understand Farber. The affidavit also recites in substance that Wyatt became suspicious of Bean and Evins. According to the affidavit, at the time that Wyatt filed the original charges or upon another occasion when she and Bean "were talking about the matter," Bean told her that, if she were discharged by Farber, Bean would get her a job at another local plant. But, says the affidavit, "There's something funny about this" because the attorneys did not "seem to be interested in" Wyatt's having lost her job and Wyatt did not understand because it was "their idea for" her "to file the Charges with the Labor Board against the union." 898 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD I conclude that the record will not support a finding that Wyatt was denied rein- statement because of her antiunion sentiments and actions, including the filing of the original charges and the execution of her original affidavit. First, Wyatt was not dependable. Second, as already found, after Farber became plant manager during November 1958, Wyatt obtained reinstatement after asking Farber to "give her another chance to come back to work, [saying] that she would be good and be- have herself." Third, although the General Counsel argues that Jolog had tolerated Wyatt's absences since Jolog began operations during 1957, it cannot be said that Farber was so tolerant. He did not become plant manager until November 1958 and Wyatt worked only 2131/2 hours during a period of 12 weeks thereafter. Fourth, as found, the evidence does not warrant conclusions that Farber threatened to dis- charge Wyatt if she organized a group of employees against the Union or that he threatened to "fix" her. Fifth, Farber told the employees orally, and Jolog told them by printed notices, that they were free to engage in union or antiunion activity on their own time. Sixth, Wyatt's "expressed desire to talk against the Respondent Union and to organize a group of the women against the Respondent Union," to quote from the complaint, appears to have been restricted to working hours. She signed charges and appears to have talked a number of times to Attorneys Evins and Bean, but she testified that she took no part in the preparation or distribution of antiunion handbills. Although Wyatt testifed generally that she spoke with other antiunion employees during nonworking hours, it cannot be said that she was more actively antiunion than a number of other employees.21 Seventh, the facts that she signed the original charges and executed her original affidavit do not warrant a con- clusion that she was denied reinstatement therefor. Insofar as appears, the only representative of management who spoke with Wyatt about the charges is Attorney Bean and, if Wyatt's testimony and affidavits are to be believed, Bean encouraged her to sign them. Bean acknowledged that he put Attorney Evins in contact with Wyatt. Thereafter, says Wyatt, she would not sign the charges against all Re- spondents until Evins assured her that Bean was fully informed of the subject, and it was Bean's and Evins' "idea" for her to file the charge against the Union. I con- clude that the Companies have not violated Section 8(a) (3) and (4) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Companies set forth in section III, D, above, occurring in connection with the operations of the Companies described in section I, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Companies have engaged in unfair labor practices, I shall recommend that they cease and desist therefrom and that they take certain affirma- tive action designed to effectuate the policies of the Act. Since the Companies invalidity assisted and supported the Union in acquiring its majority status, I shall recommend that the Companies cease and desist from contributing assistance and support to the Union and that they withdraw and withhold all recognition from the Union as the representative of employees at Jolog's plant for the purpose of dealing with the Companies concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, unless and until the Union shall have demonstrated its majority status at that plant in a Board-conducted election. I shall recommend also that the Companies cease and desist from giving effect to their oral agreement with the Union, or to any modification, extension, supplement, or renewal thereof, or to any superseding agreement, unless and until the Union shall have demonstrated its majority status as stated. Nothing in the Recommenda- tions, however, shall be deemed to require the Companies to vary or abandon those wage, hour, seniority, or other substantive features of their relations with their employees, established in performance of the oral agreement, or to prejudice the assertion by the employees of any rights they may have under such agreement. I shall not recommend, however, that the Companies reimburse the employees for union dues which were deducted pursuant to the oral agreement. The Board does not invariably order an employer to reimburse employees for dues deductions under 2' Although Wyatt's return to work on January 23 was founded in her desire to campaign against the Union during working hours, her testimony indicates that her conversations with employees that day about the Union were limited to answering their questions concerning Farber's alleged remarks to her. After working hours that day, according to Wyatt, she did not engage in antiunion activity. LOCAL 9, INT'L BROTHERHOOD ELECTRICAL WORKERS 899 an invalid contract, even where employees were coerced to join a labor organization. Alco-Gravure, supra; see also Member Jenkins' dissent in Dixie Bedding Manu- facturing Company, 121 NLRB 189 , 198-199. Here, although the Companies as- sisted the Union in obtaining its majority status, there was no requirement in the oral contract nor was there other compulsion that employees join the Union. The dues were deducted from the earnings of such employees as had signed authori- zations, and, as we have seen, Jolog told the employees by printed notice that they were not required to join the Union , Farber told them so orally, and Kehrer also told them so when he addressed them. Under the circumstances, I do not believe that it would effectuate the policies of the Act to require that the Companies reim- burse the employees for dues deductions. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By contributing assistance and support to the Union , the Companies have en- gaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 3. By interfering with , restraining, and coercing Jolog's employees in the exercise of the rights guaranteed in Section 7 of the Act, the Companies have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Companies have not engaged in unfair labor practices within the meaning of Section 8(a)-(3) and (4) of the Act, and the Union has not engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) thereof. [Recommendations omitted from publication.] Local Union No. 9, International Brotherhood of Electrical Workers, AFL-CIO, and Its Agents, Frank Benner and Robert Fitzgerald and G. A. Rafel and Co., Inc. Cases Nos. 13-CD-64 and 13-CD-77. August 24, 1960 DECISION AND ORDER This proceeding arises under Section 10 (k) of the National Labor Relations Act, which provides that : Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph 4(D) of section 8 (b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen.... On April 24, and December 2,1959, G. A. Rafel and Co., Inc., herein called Rafel, filed charges with the Regional Director for the Thirteenth Region alleging that Local Union No. 9, International Brotherhood of Electrical Workers, AFL-CIO, herein called Local 9, and its agents, Frank Benner and Robert Fitzgerald, herein called Benner and Fitzgerald, respectively, had engaged in and were en- gaging in certain unfair labor practices within the meaning of Section 128 NLRB No. 100.