Mendota Trouser Co.

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mendota Trouser Company and International Ladies' Garment Workers' Union, Midwest -Department. Case No. 13-CA-4058. November 8, 1961 DECISION AND ORDER On June 22, 1961, Trial Examiner Fannie M. Boyls issued her In- termediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the Charging Party filed exceptions to the Intermediate Report and a supporting brief. Respondent also filed a brief in sup- port of the Intermediate Report and, by permission of the Board, a reply brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. 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 Interme- diate Report, and the entire record in this case, including the excep- tions and the briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly designated Trial Examiner in Mendota, Illinois, on April 18, 19, and 20 , 1961, on complaint of the General Counsel and answer of Mendota Trouser Company, the Respondent herein. The issues litigated were whether Respondent engaged in surveillance of a union meeting and discriminatorily discharged employee Ruth Preston, thereby vio- lating Section 8(a) (1) and (3) of the National Labor Relations Act. Counsel for Respondent and for the General Counsel submitted briefs which I have duly considered. Upon the entire record, and upon my observation Of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is a copartnership composed of Daniel Lauter and Jerry Lauter. It does business under the trade name and style of Mendota Trouser Company. Its principal office and place of business is at Mendota, Illinois, where it is engaged in the manufacture and distribution of ladies' slacks. During the calendar year 1960, Respondent manufactured and sold finished products valued in excess of $50,000 which it shipped directly to customers located outside the State of Illinois. Respond- ent concedes, and I find, that its operations affect commerce within the meaning of the Act. I also find that it will effectuate the policies of the Act to assert jurisdic- tion herein. 134 NLRB No. 14. - . MENDOTA TROUSER COMPANY 95 II. THE LABOR ORGANIZATION INVOLVED International Ladies' Garment Workers' Union, Midwest Department, herein called the Union, is a labor organization admitting to membership employees of Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and issues Respondent's plant is located in the small town of Mendota, Illinois. Respondent employs about 55 persons. In December 1960, Richard Zweiback, an International representative of the Union, came to Mendota for the purpose of attempting to organize Respondent's employees. About January 12 he and three of the women employees, whose sup- port he had obtained, called upon employee Ruth Preston at her home. Preston joined the Union at that time and thereafter sought to enlist the support of other employees during her lunch periods and after work. On the day following the visit to her home and pursuant to a suggestion made during that visit, Preston sought to obtain from her brother, Allen Steele, who was Respondent's bookkeeper, a list of the employees and their addresses, to be used for union organizational purposes. Her brother refused to furnish such a list and re- ported to Dan Lauter, one of the copartners, that his sister had made the request and repeated to Lauter the names of the employees interested in the Union, which his sister had revealed to him. On February 1, as employees were leaving the plant, Union Representative Zwei- back distributed leaflets to them, announcing a union meeting to be,held on the fol- lowing day just after work at the Faber Hotel. After the employees had left the plant, Plant Manager Lee Stephenson, who had been watching the distribution from inside the plant, invited Zweiback inside and asked for one of the leaflets. Zweiback handed him a leaflet, then withdrew it, and said in a jesting vein, "You won't need it because one of your spies will bring in a copy to you tomorrow." The union meeting was held, as scheduled, on February 2, about 4:30 p.m. About eight employees attended. As they were arriving and while the meeting was in progress, Plant Manager Stephenson was sitting in a car catercornered across the street from the Faber Hotel where the meeting was held. One of the issues to be decided is whether Stephenson was there for the purpose of engaging in surveillance of the union meeting. Within a few days after the union meeting, employee Ruth Preston was transferred from the belt-making operation, at which she had been working for about 2 years, to a new operation. About a month later she was discharged, allegedly for failing to make production on the new operation and refusing to try to make production. The issues presented are whether the transfer and subsequent discharge were because of her union activities. There is no dispute as to the background facts related above. I turn now to the subsidiary evidence relating to the alleged surveillance and the alleged discrimination against Preston. B. The surveillance issue Plant Manager Stephenson was admittedly sitting in his car catercornered across the street from the Faber Hotel after he left work on February 2. He was seen there from approximately 4:40 to 5:20 p.m., by Allen Steele who was dining at the Faber Hotel Cafe during that period. Stephenson explained his presence as fol- -lows: During the afternoon, his wife, who is afflicted with asthma and under doctor's instructions not to do any excessive walking and to avoid driving alone, called him at the plant and asked him to drive her downtown so that she could do some shop- ping. He left the plant about 4:15 or 4:30 p in., met his wife, who had driven to the plant, drove her first to a grocery store and then to the spot near the Faber Hotel where he parked and waited for her while she went to two drugstores, a bakery, a paper shop, and the local newspaper agency, all of which were in the near vicinity. He testified that while waiting for his wife to complete her errands, he read a maga- zine but that he also noticed two of the employees, Ruth Preston and Ina Garland, enter the hotel. Stephenson further testified that at the time he parked near the Faber Hotel, he did not know that a union meeting was being held there and did not learn about it until the next morning when he overheard talk at the plant about the meeting. He stated that he did not know whether the leaflet and attached notice distributed to employees on February 1 contained any notice of the meeting, for before he had an opportunity to read more than the first line, Union Representative Zweiback retrieved the leaflet which Zweiback had handed him. The first line of neither the leaflet nor attachment mentioned any union meeting. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mrs. Stephenson testified in substantial corroboration of her husband's testimony regarding the circumstances under which he was parked near the Faber Hotel at the time in question. She stated that it was a day or two later that she learned about the union meeting. Her husband told her of it and she also overheard remarks to that effect in town. In all the circumstances, I am not convinced that Stephenson' s presence near the union meeting was for a purpose other than that explained by himself and wife. I therefore find that the General Counsel has failed to establish that Respondent en- gaged in surveillance of the union meeting in violation of Section 8(a) (1) of the Act. C. The transfer and subsequent discharge of Ruth Preston It is the General Counsel's contention that because of her prominence in the union movement, Ruth Preston was transferred to "more arduous and/or less agreeable job tasks" on or about February 3, 1961, and thereafter discharged on or about March 1. As already indicated, there is no question but that Ruth Preston was one of the most active, if not the most active, union advocate in the plant. There is also no question but that Respondent knew she was active. It is undisputed that employee Steele in January had informed Dan Lauter, one of Respondent's owners, of Preston's request for a list of empldyees and their addresses, to be used for union purposes; and Plant Manager Stephenson had observed Preston on February 2 enter the hotel where the union meeting was being held and knew, at least on the following day, the purpose of the meeting. Moreover, as demonstrated in this record, in a small town such as Mendota news travels fast and it is not likely that prominence of an employee in a union organizational drive could long escape the attention of manage- ment. Indeed, Respondent's witness, Frank Domason, conceded that it was common knowledge at the plant that Preston was active on behalf of the Union. Preston's prominence in the union movement and Respondent's knowledge of it, however, are not sufficient to establish that her transfer shortly after the union meet- ing and her discharge about a month later were discriminatorily motivated. Preston was hired by Respondent on February 10, 1959, and worked regularly at making belts for slacks until February 6, 1961. She was a fast worker and, after learning her job, always made in excess of the minimum guaranteed rate for the pieceworkers on the belt operation. When there was an insufficient amount of work available for her on belt operations, she was assigned temporarily to other work such as bar tacking, pocket tacking, or dart sewing. According to Daniel Lauter, Preston could produce a good quality of work if she tried but she had difficulty in maintaining an acceptable quality for any sus- tained period of time. He testified that when she filled in on operations other than belt making, Respondent suffered extreme losses on her work. He attributed this unsatisfactory performance to her lack of interest in attempting to produce on any- thing other than the belt operation. As an illustration, he cited an instance in which Preston, while assigned part time to dart sewing, consistently failed to make her production quota until he told her he was going to subtract the losses sustained by Respondent on her dart work from her pay on belt making. Thereafter, she started making over her rate an darts.' Lauter testified that although at times when he or some other management rep- resentative talked to her about the large number of defective belts she was pro- ducing, her quality of work would improve temporarily, her defective work, through- out most of her employment, was a source of irritation to him and others responsible for the high quality of slacks which his company was attempting to manufacture. And to make matters worse, Preston did not receive criticism in the proper spirit and refused to cooperate with persons returning rejected belts to her. Lauter as- serted that upon one occasion, a year or more before her discharge, he returned to the plant after a 2-day absence and found an accumulation of garments which should have been shipped. Upon inquiring why they had not been shipped, he was told that it was necessary to wait for rejected belts to be repaired by Preston and that no one wanted to talk to her because her attitude was so bad .2 Lauter testified that he i This increased production may have resulted from the fact, as suggested by former Floorlady Anderson, that Preston was furnished with a new dart machine about that time ; but I am satisfied that Lauter was convinced that his admonition to Preston caused her production to increase. 2 Lois Politsch credibly testified that when she returned rejected belts to Preston, the latter would usually say that she would fix them when she got good and ready Preston was no more respectful to Plant Manager Stephenson According to his credited testi- mony, in September 1960 when he first returned some defective belts to Preston, she in- MENDOTA TROUSER COMPANY 97 thereupon talked to Preston and "her answers and the way she talked to me were such that I felt that she shouldn't even be in my plant." He accordingly left in- structions with Floorlady Doris Anderson-who at that time was performing most of the duties later performed by Plant Manager Stephenson-that Preston should be laid off at the end of her shift. Anderson, however, did not lay Preston off and explained to Lauter later that she did not want to have to break in a new girl and believed she could straighten Preston out. Floorlady Anderson left Respondent's employ in September 1960 to go into business for herself. She was succeeded by Plant Manager Stephenson. According to Lauter, Preston was an even worse source of irritation to Stephenson and upon one or two occasions when Stephenson complained to him about the quality of belts Preston was producing and her lack of cooperation, Lauter told Stephenson, that if he was having that much trouble with her, she should be fired. Stephenson, however, was reluctant to fire her. Lauter thereupon decided to have belts made at Respondent's office in Chicago but abandoned this experiment after about 2. weeks and returned the operation to Mendota because of the delay occasioned in shipping needed belts back to Mendota. Lauter's testimony with respect to Preston's work on the belt operations was substantiated in most respects by former Floorlady Anderson and Plant Manager Stephenson. Anderson, characterized Preston as "an ordinary worker." She testi- fied that at times Preston's work was satisfactory and at other times it was not; that Preston was a fast operator on belts but did not always make production on other piecework jobs to which she was assigned; that upon one occasion Lauter had sug- gested that she lay off Preston because of his dissatisfaction with her as a belt operator, but that Anderson talked to Preston and sought to bring about an improve- ment in Preston's work instead. Anderson also testified that when belts were re- turned to Preston , she would refuse to repair them unless she was paid for making them over and that Preston was in fact paid for making them over.3 Stephenson testified that after assuming his duties as plant manager in Septem- ber 1960, it became necessary to remind Preston constantly that she was not satis- factorily maintaining quality standards, that between 3 and 15 percent of the belts made by her were rejected, whereas the normal number of rejects should be less than 1 percent; that Preston sometimes delayed for as long as 2 days before re- pairing the belts returned to her, thereby delaying the shipment of slacks, to which the particular matching belts had to be attached; that about a week before transferring Preston to the support operation, he discussed with Lauter his dissatisfaction over the quality of Preston's work and Lauter suggested discharging her; however, it was decided to transfer the belt making operations to Chicago and to assign Preston to the job of sewing supports. Defective workmanship on supports, according to Stephenson, would not be so apparent because supports were on the inside of the garment. Preston denied that the percentage of belts rejected was as high as that estimated by Stephenson. She testified that although she had received as many as 20 rejects in 1 day, she averaged only between 2 and 4. Ina Garland, who succeeded Preston on the belt operation , had never received more than five rejects in 1 day and on many.days had none. quired, "Who in the hell are you?", and thereafter when he returned belts to her and explained that he was in a hurry for them, she would sometimes say, "I'll do them when I get time or when I get ready " Also illustrative of Preston's attitude toward her work was the experience with her related by employee Myrtle Dial The latter credibly testified that upon occasions Preston had been assigned to assist Dial on tunnels and darts and performed her work very care- lessly. When the presser asked Preston to be more careful, she replied that she did not "give a damn" because Dial , not she, would get the defective work back for repairing On another occasion, when Preston was assigned to assist Dial and Dial requested that she work first upon material which was then needed, Preston replied that neither Dial nor Stephenson were going to tell her what to do After Dial reported Preston's attitude to Stephenson , he no longer assigned Preston to assist at dart sewing 3 Anderson voluntarily left Respondent's employ to go into business for herself. She. impressed me as an impartial and truthful witness. Preston, testifying generally in regard to rejects, stated that she was not paid twice for making belts which were rejected and I am satisfied that she was not paid twice while working under Plant Manager Stephenson, who succeeded Anderson . I am convinced , moreover, that Lauter did not know that Preston was ever paid for remaking or repairing the rejected belts I find, however, in accordance with Anderson's credited testimony that double payment to Preston did occur at least part of the time while Anderson was flooriady. 630849-62-vol 134-8 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent did not keep any records of rejected belts or other parts of the gar- ments it manufactured . I am satisfied from all the evidence that Stephenson 's esti- mate of the number of rejects received by Preston was exaggerated , but that nevertheless, Preston, in an effort to produce a large quantity of belts and increase her earnings , did frequently produce an excessive number of defective belts and that this circumstance , coupled with her uncooperative attitude in repairing the belts and in working part time on other jobs to which she was assigned , motivated Re- spondent in transferring her from the belt operations to the support job. The support operation was created in trying out a new style and was discontinued within a few months after it started . Several employees had worked on it part time before it was assigned to Preston as her regular job. When Respondent returned its belt-making operations to Mendota , about 2 weeks after transferring them to Chicago, employee Ina Garland-who had accompanied Preston to the union meet- ing-was assigned to Preston 's former operations. According to Lauter, as well as Stephenson, Garland 's performance was highly satisfactory. Lauter testified, "Today I am getting one of the best belts I have got since I have been in business. During the period of approximately a month when Preston worked on supports, she never at any time made her production quota. In fact , she produced less than half the quota set for that job throughout the period she worked on supports. Plant Manager Stephenson frequently complained to her about her lack of production, instructed her about how to sit at her machine, and upon one occasion at quitting time called her back , as she was leaving the pant, to remove materials which she had left on her machine . Preston testified that Stephenson "completely complained and refused to accept practically anything I did." She was openly resentful of Stephenson's suggestions and orders . She refused to follow his suggestions as to the posture she should assume at her machine to avoid fatigue and when called back to remove materials from her machine , she had muttered "son-of-a-bitch" under her breath but within Stephenson's hearing. On February 27, Stephenson called Preston to his office and warned her that unless she could show some improvement in her production-at least one unit a day- Respondent would be unable to keep her in its employ . Her production did not im- prove on the following day and he again called her into his office and informed her of this fact. She replied that the rate was too high and that "she couldn't make it even if she wanted to." Employee Frank Domason , whose duty it was to keep the machines in good condition , thereupon speeded up her machine in an attempt to assist her in increasing production .4 Nevertheless, her production did not improve on the following day. Stephenson discharged her on that day, March 1 , explaining that her production had not improved and that Respondent could not continue to take a loss of $3 or $4 a day on her work. It was Preston's belief, shared by at least one of the other employees,5 that Stephenson was purposely harassing her with criticisms, complaints, and instructions throughout the period she was working on the support operation . She testified that the production quota was set so high that she could not possibly have made it no matter how hard she tried. Four persons at one time or another worked on the support operation but none for as long as a week at a time . Stephenson testified that only one, Francis Hazley, had ever made the rate set by Respondent for that operation and this had apparently occurred only once. Stephenson did not know whether she had made it for as long as an 8-hour period. Nevertheless, as he explained , this does not necessarily mean that the rate is too high , for an employee is not expected to make the rate while learning the operation and her ability to adapt to the new operation quickly may' depend upon whether she is experienced in single needle sewing operations, as Preston was. His chief complaint against Preston was not that she failed to make the rate; it was, rather, that she failed to improve and plainly indicated that she did not intend to try to improve . Her statement to him about February 28 that she could not make the rate "even if she wanted to " only confirmed what her production records indi- cated, that she did not want to make the rate. Along the same lines, Lauter testified that Preson's producion records indicated to him that Preston planned the amount of work she intended to produce and that when it was reported to him that she had * Domason had been requested by Stephenson to be present at these interviews as a witness. 5 Judy Majors, who worked near Preston, testified that Stephenson "would come up and watch [Preston ] all the time" ; that he "was always talking to her , picking on her", and that after telling Preston to do a job one way, he would return and tell her to do it a different way. BREWERY & SOFT DRINK WORKERS LOCAL UNION 163 99 said she could not make the rate "even if she wanted to," he told Stephenson to discharge her immediately.6 Upon a consideration of all the evidence, I am not convinced that Respondent either transferred Preston to the support operation or discharged her for discrimina- tory reasons. Although it does appear that Preston was subjected to a substantial amount of harassment from Stephenson while she was working on the support opera- tion, this circumstance may reasonably be attributed to Preston's uncooperative atti- tude and failure to improve her production. In the circumstances of this case, even if there had been evidence of union animosity on Respondent's part-and there was no such evidence here-I would conclude that the General Counsel had not proven by a preponderance of the evidence that Respondent was discriminatorily motivated in transferring, then discharging, Preston. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices, as alleged in the com- plaint, within the meaning of Section 8(a)(1) and (3) of the Act. [Recommendations omitted from pu'olication.] O To show that it had correctly appraised Preston's attitude about her work, Respond- ent called as a witness an employee, Goldie Clarke, who related that she had overheard Preston telling some of her friends in the plant lunchroom that "she couldn't get along" with Stephenson ; that "she hated him" ; that "she wasn't going to try to make the rate of work because she didn't like the job she was on"; and that she wanted her old job back. Preston denied making these statements but none of the employees to whom she allegedly made the statements, and who could have confirmed or denied Clarke's testi- mony, were called to testify. I credit Clarke's testimony. Brewery and Soft Drink Workers Local Union No . 163 [Steg- maier Brewing Company] and George Tryba International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO [Steg- maier Brewing Company] and George Tryba. Cases Nos. 4-CB-664 and 4-CB-705. November 9, 1961 DECISION AND ORDER On August 7, 1961, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the consolidated complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 134 NLRB No. 16.