Kamp Togs, Inc.

196, DECISIONS OF CINATIONAL' LABORTRELATIONS BOARD DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and the entire record in this proceeding, the Board makes the following determination of dis- pute, pursuant to Section 10 (k) of the Act : 1. Laborers employed by Mechanical Specialty, Inc., who are repre- sented by Local 18, International Hod Carriers, Building and Com- mon Laborers Union of America, AFL-CIO, are entitled to perform the unloading and positioning of laboratory equipment for their Employer. 2. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 213, is not entitled, by means proscribed by Section 8 (b) (4) (D) of the Act, to force or require the Employer to assign the above work to carpenters who are represented by the Carpenters. 3. Within 10 days from the date of this Decision and Determina- tion, the Carpenters shall notify the regional Director for Region 23, in writing, whether or not it will refrain from forcing 'or requiring the Employer, by means proscribed by Section 8 (b) (4) (D) of the Act, to assign the work in dispute to carpenters rather than to laborers. Kamp Togs, Inc. and International Ladies' Garment Workers' Union, AFL-CIO. Case No. 14-CA-3167. August 5, 196 . DECISION AND ORDER On May 12, 1964, Trial Examiner James F. Foley issued his Deci- sion 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 deist ' therefrom and take certain af- firmative action, as set forth in the attached Trial Examiner's Deci- sion.. Thereafter, the Respondent filed a bill of exceptions and assign- ment of error to the Trial Examiner's Decision, and the General Counsel filed a brief in answer. Pursuant to, the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to athree- member panel [Chairman McCulloch and Members Fanning and Jenkins]. 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 Trial Ex- aminer's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. 148 NLRB No. 21. i KAMP TOGS, INC. ORDER 197 Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner and orders that Respondent Kamp Togs, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified below. The following language shall follow paragraph 2(a) of the Trial Examiner's Recommended Order. (b) Notify Victor Mannahan, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service Act and Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. The other paragraphs of paragraph 2 shall be relettered accordingly. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case, Case No. 14-CA-3167, was brought under Section 10 (b) of the National Labor Relations Act, as amended •(61 Stat. 136, 73 Stat. 519), herein called the Act, on a charge filed September 5, 1963, against Respondent Kamp Togs, Inc., herein called Respondent, by International Ladies' Garment Workers' Union, AFL- CIO, herein called the Union . On October 30, 1963, the General Counsel of the National Labor Relations Board, herein called the Board , issued a complaint and notice of hearing against Respondent , alleging violations of Section 8(a) (1) and (3) of the Act. On November 8, 1963, Respondent denied the allegations of unfair labor practices in General Counsel's complaint . On December 31, 1963, General Counsel amended the complaint , and on January 8, 1963, Respondent denied the amended allegations of unfair labor practices contained in the amendment. A hear- ing on the complaint and answer, as amended, was held before Trial Examiner James F. Foley on January 14 and 15, 1964, at Louisiana , Missouri . General Counsel, Respondent, and Charging Party were represented at the hearing. The parties were afforded an opportunity to be heard, make oral argument , and file briefs. General Counsel and Respondent filed briefs after the close of the hearing. FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent, a Missouri corporation , with its principal office and place of business in Clarksville, Missouri, is engaged in the manufacture, sale, and nonretail distri- bution of children's clothing and related products. During the calendar year 1963, Respondent caused goods and materials with a value in excess of $50,000 to be transported, sold, and shipped directly from its Clarksville, Missouri, place of business, to points outside the State of Missouri. I find that Respondent is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act, and that assertion of jurisdiction will effectuate the purposes of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background evidence Respondent employs approximately 100 persons at its Clarksville plant.1 In- cluded in the 100 employees are 9 cutting room employees . This case is concerned 1 Respondent employs SO persons at another plant In Pleasant Rill, Missouri , a short distance from Clarksville 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with eight of these employees. Four of them are cutters, three of them spreaders, and one is a pattern marker. The ninth employee is a pattern grader. Their fore- man is Arnold Shaw. The plant manager is Edward Waxman. Al Kopolow is president and Jack Kopolow is vice president. They have offices in St. Louis, Missouri. Jack Kopolow normally visits the Clarksville plant about once a week. The eight cutting room employees are cutters Victor Mannahan, Luke Swarnes, Alfred Baumann, and Jack Detienne, spreaders Hurley Conway, Bob Meloan, and John Robinson, and pattern marker Harry Pilkington. The pattern grader who works with them in the cutting room is Thomas Phillips. Shaw is also his foreman. In early March 1963, Local 181 (Cutters' Local) of the Union engaged in an organizational campaign to organize the four cutters, the three spreaders, and the pattern marker. On or about April 30, 1963, four of the eight employees signed cards designating the Union to act as their collective-bargaining representative. On May 3, 1963, Local 181 filed with the Regional Office in St. Louis, Missouri, a petition for certification as collective-bargaining representative of the eight cutting room employees. Respondent received notice of the filing of the petition on May 4, 1963. A Board-conducted election in this unit of eight employees was held on May 24, 1963. Four of the eight employees voted against the Union, three voted for it, and one vote was challenged. On June 4, 1963, the Regional Director for Region 14 issued a certification of results of election in which he stated that a majority of valid votes had not been cast for any union appearing on the ballot and, therefore, no such organization was the collective-bargaining representative of the eight cutting room employees. B. Interference, restraint, and coercion 2 On April 29, 1963, Plant Manager Waxman held a meeting in the plant for all employees. At this meeting, Waxman informed the employees that Respondent was instituting a profit-sharing plan which could provide to each employee at least an extra week's pay, and perhaps 2 or 3 extra weeks' pay, depending on the Company's profits. Waxman also said that President Kopolow had told him not to mention the plan, but he decided to tell them about it anyway, rather than wait until a later date, that it had been approved by the "Government" but he did not know too much about it, as it was still in the planning stage. He said he would know more about it later. At the hearing, Waxman testified that he did not know when the profit-sharing plan had been submitted to the "Government." Waxman also testified that he did not know then (January 15, 1964) whether the plan had been placed in effect. He said the intention was to place it in effect in the year 1964. He knew no more about the details at the hearing than he knew on April 29, 1963. Employee Mannahan made the original contact with the Union in early March 1963. On March 12, 1963, Jerry Perlstein, International representative of the Union, with an office in St. Louis, Missouri, met with Mannahan and three other cutting room employees in Louisiana, Missouri, a short distance from Clarksville. They were Swarnes, Pilkington, and Baumann. Swarnes and Mannahan signed authoriza- tion cards, and gave them to Perlstein. Both were given authorization cards to distribute to other cutting room employees. The next day Mannahan asked Bau- mann, Pilkington, and Conway, another cutting room employee, to sign authorization cards. They did not sign at the time. Perlstein made two or three visits to Louisiana after the March 12 meeting to call on cutting room employees at their homes to seek their signatures on authorization cards. Swarnes did not work on April 29 when Waxman told the employees in a meeting about the proposed profit-sharing plan. On the morning of April 30, Shaw, the cutting room foreman, told Swarnes about the proposed profit-sharing plan. He also said that Waxman would probably explain it to him, but perhaps woud not get around to it right away. After Mannahan unsuccessfully attempted to reach Perlstein by long-distance telephone on April 30, Swarnes reached him indirectly through Erple Reams, another union official. She was able to communicate with him and inform him that the Respondent's cutting room employees wished to meet with him that evening in Louisiana. That evening Perlstein again met with the cutting room employees in Louisiana. Employees Mannahan, Swarnes, Baumann, Meloan, and Conway met with him. Detienne came to the meeting hall, but did not enter it to attend the meeting. He waited outside. Perlstein and the four employees discussed 2 In making the following evidentiary findings, I have evaluated the demeanor and other testimony of Respondent's two witnesses as well as the demeanor and other testimony of General Counsel's six witnesses I have also considered the arguments of Respondent's counsel dealing with the credibility of the witnesses. KAMP TOGS, INC. 199 Respondent's proposed profit-sharing plan, and Mannahan, Swarnes, Meloan, and Conway signed authorization cards, and gave them to Perlstein. Baumann kept his card. On May 1 or 2, Plant Manager Waxman came to Pilkington 's work station and said to him that he had heard some of the fellows had signed union cards, and asked if he had signed a card. Pilkington answered that he had not . Waxman then said he thought that he had been fair with the employees, and did not understand why they wanted a union . He said further that he knew Respondent would never sign a union contract. On or about May 2, Shaw, the cutting room foreman, came to Swarnes' work station and said to him that he understood that he had signed a union card. Swarnes answered that he -had. Shaw asked him why he signed the card, and said he did not understand him, that he had never laid him off, or had hollered at him, or bothered him or the other men. Swarnes said that they had never re- ceived raises, and figured that the only way to get a raise was through the Union. The next day, May 3, Plant Manager Waxman spoke to Swarnes at his work station. He said that Shaw had told him that he had signed a union card . Swarnes replied that he had, and that most of the men in the cutting room had. Waxman then said that Swarnes had made a mistake in signing the card , and that Respondent's profit- sharing plan would amount to more in the long run than what Swarnes would get if he joined the Union and received a slight raise as a result of his union activity. Waxman also said to Swarnes that if the employees selected a union to represent them, the employees would be laid off in slow periods , as the Respondent , under a union contract, could not afford to pay the employees to stand around , wax tables, and dust the lights. As previously stated, Local 181 of the Union, on May 3, filed with the Regional Director a petition for certification as collective-bargaining representative of eight of Respondent's nine cutting room employees. Thomas Phillips, the pattern grader, was not included in the unit for which the Union sought certification as collective- bargaining representative. On Saturday, May 4, Waxman received a letter from the Regional Office in which he was informed that the representation petition had been filed. A copy of the petition was enclosed. On the following Monday or Tuesday, May 6 or 7, Waxman told Phillips, the pattern grader, about the petition and that he was not included in the unit. He said he knew four of the eight em- ployees had signed cards, and wondered who they were. About May 6, Waxman had another conversation with Swarnes. He said to Swarnes that he wished to talk with him, and Swarnes replied that he wished to talk to him. Swarnes first asked Waxman to explain the profit-sharing plan, saying that he could not see how it could benefit him. After discussing the plan, Waxman said that Swarnes would receive no benefit by joining the Union, and that if Respond- ent were to sign a union contract , Swarnes would be laid off during slack periods. He also said that Kopolow did not have any use for unions, and Respondent would close the plant down before it would sign a union contract. Waxman then stated that Mannahan had talked Meloan, one of the spreaders, into signing a union card. Swarnes asked Waxman how much of a raise the employees would receive if the Union lost the election. Waxman replied he could not tell Swarnes because it was against the rules to tell how much of a raise he would give , but that before when they had union trouble, the boys received a raise about 3 weeks after the election. Swarnes asked how much of a raise the boys received , and Waxman answered that it was 10 or 15 cents. About May 6, Waxman came to Mannahan's work station and asked him if he had signed a union card. Mannahan answered that he had. Waxman asked Man- nahan what he hoped to gain by signing the card . Mannahan replied that the Union would obtain a raise for him. Waxman then said, "What makes you think that even if this factory plant does go union that Al Kopolow will ever sign a union contract?" He stated to Mannahan that Kopolow would rather close the plant down than sign a union contract . About May 6 or 7, Waxman again talked to Pilkington at his work station. He said he did not know why the employees wanted a union as he had treated them fairly. He also said they had steady work, unlike what they would have if the Union got in, and that Respondent would not go along with a union contract. About May 13, Waxman made another speech to the assembled employees, with the exception of the eight cutting room employees . Waxman again spoke in general terms about the profit-sharing plan, and what it would mean to the employees, and also stated that all employees who had been with the Respondent 5 years or more would get a 2-week vacation instead of a 1-week vacation. The new vacation plan would become effective in July 1964. About May 13, Waxman went to Baumann's work station and asked him if he had signed a union card . Baumann answered that `ZOO DECISIONS OF NATIONAL LABOR RELATIONS BOARD he had but tore it up, and did not turn it in to the Union . Waxman then said he was glad Baumann had done this , that he thought the profit -sharing plan was going to be a good thing for the employees. About May 17, Waxman called Mannahan from his work station to the water fountain nearby, and asked him why he was so set on the Union. Waxman remarked at this time that he could never get a definite answer out of Mannahan as to whether the latter was for or against the Union, even though he knew he was for the Union. Mannahan answered that he was for the Union , and if there was one vote for it in the election , Waxman should know that it was his. Waxman replied that the factory would never go union, and that Al Kopolow, the owner, would never sign a union contract . He then said to Mannahan that he would give him a 10-cent raise if he voted against the Union . He also said that he could not figure out why the boys did not favor the profit-sharing plan as it meant more to them than the Union could give them . He warned Mannahan that if the employees went union , the cutters could not do spreaders' work as they had in the past, but would be laid off when work was slack. About Tuesday, May 21, Waxman held a meeting of the cutting room employees. At this meeting, Waxman told the employees that they would be better off without the Union , that Kopolow would not sign a union contract if the shop went union, and would close the plant, and that he had paid them for 52 weeks a year, but if the Union got in, they would be laid off during slack periods. He also said he had tried to be a good boss, had treated them fairly, and had not closely supervised them, but that if Respondent became a union shop, he would show them what a difficult boss he could be . If he caught them huddled in a group talking , he would fire them. He then referred to the profit -sharing plan . He said it was a good deal, and that if they understood it more thoroughly , they would not be interested in the Union. He ended his talk by telling them that if all of them voted against the Union, he would see to it that everything would come out all right. On Thursday, May 23, the day before the election , Waxman held another meeting of the cutting room employees He again told them that the profit -sharing plan was better than they realized , that they did not understand it, and he could not explain it to them, and that it was better for them than what the Union could obtain for them. He said he wanted to see eight "no" votes and no "yes" votes , and that he would not hold anything against anybody for what they did as long as the election came out the way he wanted it. He again said that he had been a good boss , but that if they voted the Union in, he could turn into a very difficult boss. He repeated his prior statements that Respondent would never sign a union contract , but would close down and move out, and the employees would lose everything, and that Respondent had employed them 52 weeks a year, but if they went union , cutters could not do spreaders' work, and would be laid off when there was not cutters ' work for them to do. He ended his talk with a warning that if any of the employees thought about disclosing what he had said to them, and of filing unfair labor practice charges, they had better think about such a move because they would have to face him in court, that he could not be arrested or put in jail , and would be "cited" only, and he could rephrase his words and tell them the same thing again as he was telling them then. The election began about noon on May 24 In the morning , Mannahan told Waxman that he was the Union 's observer . Waxman replied that he knew it was either he or Luke Swarnes . Shortly thereafter, as Mannahan was walking with Waxman toward the election area, Waxman said to Mannahan , "Vic, don't do some- thine that will hurt yourself . Do right and I will take care of you " The eight employees, comprised of the cutters , spreaders, and the pattern marker, voted in the election As previously stated, three votes were cast for_ the Union, four against, and one ballot was challenged . The Union did not obtain a majority. The next morning, Saturday, May 25, Swarnes told Foreman Shaw that he was one of the three employees who voted for the Union , and he did not want anyone else to be blamed . Shaw told Swarnes that he wanted him to tell this to Waxman. They both went to Waxman's office. Shaw telephoned Waxman, who was at home, and a short time later Waxman appeared at his office Swarnes told Waxman what he had told Shaw earlier . Waxman replied that he figured Swarnes voted for the Union, that he knew two of the three who had voted for it , and knew Mannahan had voted for the Union . Swarnes then said he was ready to take whatever punish- ment they felt was necessary. Waxman replied that Al Kopolow said that anyone who voted for the Union would not get a raise. Swarnes said that he would quit if the others received a raise and he did not receive one . Waxman told him not to quit before talking to him first. Swarnes then asked Waxman what would havven to Mannahan, and Waxman said that Mannahan would never receive a raise , and was working on borrowed time. KAMP TOGS, INC. 201 About May 27, Waxman, in the presence of Jack Kopolow, Respondent's vice president, talked to Pilkington at the latter's work station. He asked Pilkington if he had voted for the Union. The latter answered that he had not, but if he had, he would not have told him the truth. He also said to Waxman that he thought the vote at the election was to be a secret one, and that Waxman should not have asked him how he voted .3 Later that day, Jack Kopolow came to Pilkington's work station, and said that they had sort of made him mad that morning when they talked to him. Kopolow further said that it was important for them to know how Pilking- ton felt concerning the Union, as he had a key position with Respondent and would be harder to replace than a cutter. Pilkington was a pattern marker. As Kopolow was leaving, he jokingly referred to an affair that Pilkington had had with one of the female employees in the plant. She had been discharged on the previous April 12 because of such a matter. Effective June 17, 1963, the cutting room employees with the exception of Manna- han and Swarnes received a 10-cent-per-hour wage increase. When Shaw was passing out the paychecks on June 14 to the cutting room employees, he told Swarnes that the other cutting room employees had received a raise, and he had not. Shaw made reference to the conversation Swarnes had with Waxman on May 25 and said to him that he would talk to Waxman about the matter. He also said to Swarnes that he did not have any part in the decision not to give him a raise, that he deserved it as much as any other man in the cutting room, and hoped that he would have no hard feelings against him because of the decision. The following Monday, June 17, Waxman told Swarnes that he had talked to President Kopolow and the latter had agreed to give him a raise However, he said that Swarnes was to be penalized for 3 weeks, and that the raise would be on his check for the week beginning July 8. On July 8, the 10-cent-an-hour wage increase was made effective for Swarnes. Mannahan never received a wage increase .4 During the first week of September 1963, Waxman came to Swarnes' work station, and said to him that there would be unfair labor practice charges filed against him, Waxman, and he did not wish Swarnes to worry about it. Swarnes answered that he should be the one to worry, and asked Waxman what he was going to say about his penalizing him for voting for the Union. Waxman replied that he would tell them that Swarnes was the newest employee. The evidence shows that Swarnes had spent less time in the employ of Respondent than the other three cutters. Detienne had left his employment with Respondent, and was hired back after Swarnes became an employee. Meloan's length of service was shorter than Swarnes', but he was a spreader while Swarnes was a cutter. C. Mannahan's discharge As previously stated, Mannahan had initiated the organizational activity that resulted in the Board-conducted election on May 24, 1963. He was also the Union's observer at the election. He was discharged by Waxman on August 15, 1963. At the time of his discharge, he had been employed for 7 years by Respondent. He had spent 1 year as janitor, 11/z years as spreader, and 3V2 years as cutter When Respondent had a fire in its plant in December 1961, Mannahan along with other employees was temporarily laid off. However, he was immediately rehired to assist the mechanic in work that was done on the machines. He was the only one of the cutting room employees assigned to this work. During the 7 years of employment, Waxman and he had been friendly, and had often engaged in friendly conversation. The record does not contain any evidence showing that Respondent had any fault to find with the caliber of Mannahan's work during the time it employed him. As previously, found, supra, Waxman told Swarnes on May 25 that Mannahan would never receive a raise, and that he was working in the plant on borrowed time. Swarnes told Mannahan what Waxman had said to him. About a week later. June 7, Mannahan started a conversation with Waxman outside Waxman's office. Since the election, Waxman had not spoken to Mannahan. He did not respond to his saluta- tions, and otherwise completely ignored him. In the conversation which Mannahan started with Waxman. he referred to Waxman's statement the day before the election that he would not hold any grudges against the cutting room employees if the elec- S This is the testimony of Pilkington. It is corroborated by Jack Kopolow's testimony ' On May 6, 1963 all the hourly employees, with the exception of the cutting room employees, received a 5-cent-an-hour wage increase General Counsel does not rely on 'the giving of the wage increase to the cutting room employees effective June 17, but merely on the failure of Respondent to give Mannahan and Swarnes the same increase that the others received 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion turned out the way he wanted . Waxman replied that he was not holding any grudge against him, that he just did not like him any more. Mannahan asked him if it was true that he would be fired. Waxman answered that he would be fired some day, maybe not that day , maybe not the following day, but some day he would be fired. Waxman continued, "All I can say is work hard and keep your nose clean." Mannahan said to Waxman that during his period of employment each had done a lot of favors for the other . Waxman replied that Mannahan had been paid for the favors he had done. Mannahan, in reference to work he had done after the December 1961 fire in the plant, said , "Yes, but working out in the cold, in the grease, in below zero weather, that it was awfully rough and I sure wouldn't like to do it again ." Waxman asked Mannahan if he was threatening him. Mannahan replied that he was not. He added, however, that he knew more about the two fires than Waxman thought he did . There was then a conversation about the machines damaged in the December 1961 fire. Mannahan conveyed to Waxman his opinion that Respondent arranged machines in such a way as to make it appear that machines not there during the fire as well as the machines that were there were damaged by the fire. Waxman then told him he was fired for threatening him, but that he would keep him on until he could find another job as it was easier for him to find work while he was working than when not working .5 Following this conversation with Mannahan , Waxman stated to employees and others that Mannahan had threatened him. About the middle of June 1963, Man- nahan sought a conversation with Waxman , and Waxman talked to him outside the door of his office. He said to Waxman that be had heard that Waxman was telling plant employees and other persons that he had threatened him, that he did not threaten him, and that Waxman knew it. Waxman replied that it sounded like a threat to him. Waxman then said again that he should look for another job, that some day he would be fired, and it was easier to find a job when he was working than when he was not working. On Thursday, August 15 , 1963, about 4.30 p.m ., Mannahan came to Waxman's office, after being told by Foreman Shaw that Waxman wished to see him . Mannahan testified that when he entered the office, Waxman, who was sitting at his desk, said, "Vic, I am sorry that things have to end this way, but this is your last working day." Mannahan said that he expected it, and then Waxman asked him if he had looked for another job . He said he had, and then added, "Is that all you have to say, Ed?" Waxman answered that it was . Mannahan then left. Waxman handed him two checks. One was for the full week ending the following day, August 16, and the second check was for the previous week. According to Waxman , when he handed Mannahan the two checks he said, "Vic , eight weeks ago I told you that I was letting you go, and I kept you for eight weeks and you have not done anything about getting another job ." Waxman testified that he then said, "I think I have gone along with you about as far as I can go, and I won't need you any more." Mannahan has never been recalled to employment by Respondent. Waxman testified that during the morning of August 15, Dola Windmiller , deputy sheriff of Pike County, in which Clarksville and Louisiana are located , came to his office and said he had something important to talk to him about. He asked him to come outside the building with him. Outside the building , the deputy sheriff asked Waxman if he would swear out a search warrant to search Mannahan 's home. According to Waxman, he did not ask him for the reason for the search warrant, but told him that they were not interested in such a thing , and would not want anything to do with it. Waxman did not mention the visit of Windmiller to Mannahan when he discharged him later in the afternoon.6 I Waxman testified that he considered Mannahan's statement about the machines to be a threat He said he did not tell Mannahan that he would be fired until Mannahan began talking about what he considered Respondent did in connection with the machines after the December 1961 fire . I do not credit this testimony. Mannahan was obviously pro- voked into talking about the machines either as a plea for special consideration or a threat by Waxman's admission that he was going to fire him 5 Mannahan admitted that during the period from his discharge to the hearing , he made considerable money playing pool and cards While I have considered this evidence along with that of Windmiller 's visit with Waxman in weighing Mannahan's testimony, I find Mannahan to be a credible witness from his demeanor testimony and from the testimony he gave of statements , events and other circumstances bearing on the issues , and the evaluation of his testimony when compared with the demeanor and other testimony of Waxman KAMP TOGS, INC. 203 Analysis and Conclusions On the foregoing findings, I make the following findings and conclusions. Respondent, in violation of Section 8(a)(1) of the Act, interrogated employees Pilkington, Swarnes, Mannahan, and Baumann about their union activity in individ- ual conversations with them prior to the election on May 24, 1963, and interrogated Pilkington again after the election in the week beginning May 27, 1963. Respondent, in violation of Section 8(a)(1) of the Act, threatened employees Pilkington, Swarnes, and Mannahan in individual conversations prior to the election. Waxman stated to each of them that Respondent, would never sign a union contract, and stated to Swarnes and Mannahan that Respondent would close the plant down before he would sign a contract. He also told Swarnes that Respondent had no use for unions and that he made a mistake when he signed a union card. Just prior to the election on May 24, Waxman warned Mannahan, who was to be the Union's ob- server, not to do anything that would hurt him, and to do the right thing and he would take care of him. Respondent in violation of Section 8(a) (1) of the Act threatened the cutting room employees assembled in meetings it called and held in the week prior to the May 24 election. In the first meeting, Waxman told assembled employees that they were better off without a union, that President Kopolow would not sign a union contract, and contrary to what he had been, he would become a hard boss, if they selected the Union to represent them. In the meeting held on May 23, the day before the elec- tion, Waxman told the eight cutting room employees he wanted eight "No" votes and no "Yes" votes; that he would hold no grudge against them if the election turned out the way he wanted; that he would be a hard boss if they selected the Union to represent them, and that Respondent would close down the plant before signing a union contract, and the employees would lose everything. Waxman also warned them against filing unfair labor practice charges against him for what he said in the meeting. He said they would have to face him in court, and that he would not be arrested or put in jail, but only ordered not to repeat what he had done. He could rephrase his words and tell them the same things again. I do not find that Respondent violated the Act when Waxman told the employees that under a union contract he would have to lay them off during slow periods. He explained this statement in some instances by saying that the contract would not per- mit cutters to do spreaders' work, and in other instances by saying Respondent could not afford to pay wages under a union contract for cutters' and spreaders' work for polishing and waxing tables and dusting lights. I find these statements to be ex- pressions of opinion, and protected by Section 8(c) of the Act. I conclude and find that Respondent, in violation of Section 8 (a) (1) of the Act, gave the impression that he engaged in surveillance of employees' union activities when he said to Swarnes on May 6 that Mannahan had persuaded Meloan to sign a union authorization card. I conclude and find that Respondent, in violation of Section 8(a)(1) of the Act, promised a wage increase to Swarnes on or about May 6, and to Mannahan on or about May 17, if they voted against the Union in the election. I find that Waxman's announcement on or about May 13 to all the employees, with the exception of the cutting room employees, that those with 5 years' or more service would receive 2 weeks vacation instead of 1 week, to be a promise of benefit, and violative of Section 8(a) (1) of the Act. The revised plan was to be effective the summer of 1964, not the approaching summer of 1963. No explanation was given for the announcement of the additional week of vacation shortly before the election, although it was not to be effective for another 15 months. The timing of the announcement, and the date when it was to be effective, absent an explanation, discloses that it was a promise of benefit designed to influence the cutting room employees in the forthcom- ing election. While the announcement did not include the cutting room employees, it clearly conveyed to them notice of a benefit to be received if they would vote against the Union. They knew they would enjoy the extra week if they did. I am persuaded that Plant Manager Waxman had knowledge of the union activity when he announced the profit-sharing plan to the assembled employees on April 29, 1963. Union activity had been started in early March. Perlstein, the Union's International representative, met with the cutting room employees on March 12, 1963, and made several visits between that date and April 29 to visit homes of indi- vidual cutting room employees seeking signatures on union authorization cards. Waxman asked Pilkington on May 1, the day following the union meeting in the evening of April 30, if he had signed a union card. Shaw informed Swarnes 2 days after the April 30 union meeting he had heard that he had signed a union card Waxman also talked to him about his signing of the card the next day. In 204 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD connection with his testimony of a meeting of cutting room employees he claims he held on May 6, Waxman testified that employees had had conversations about the union activity, and what they said drifted back to him. Waxman had a source of information which promptly conveyed to him information about union activity shortly after it occurred. It appears, therefore, that by April 29 he was well in- formed about the union activity that had been taking place since early March.7 I find evidence of knowledge of union activity by Respondent on April 29 in Waxman's announcement of the profit-sharing plan on that date after a sudden birth, Waxman's lack of knowledge of any details of the plan at the announcement as well as at the hearing 9 months later in January 1964, and the failure of Respondent at the hearing to produce any written evidence of the existence of the plan. Waxman testified that the plan was first conceived in late March or early April 1963. In his speech to the employees on April 29 he spoke only in a very general way about it. He said he did not know any of the details. But he also said it had been approved by the "Government." How it could have been readied for submission to the "Government," submitted, and approved by April 29, is something that is beyond my understanding. At the hearing this January 1964, Waxman admitted he did not know who submitted it to the "Government" or when it was submitted. He said it was intended- to be effective in 1964. However, he did not know if it had been placed in effect or when it would be effective. It appears to me that a plant manager would have this information about a matter so vital to management and the employees, if it were more than something devised merely to stave off the union activity of the employees. Nothing was offered by Respond- ent at the hearing to show that there was a profit-sharing plan at that time, or that it was something more than a makeshift device conceived to defeat the union activity of March and April 1963, and abandoned when the Union lost the election on May 24, 1963.8 - I conclude and find that the statements Plant Manager Waxman made to employees about the superior benefits they would receive under the profit-sharing plan are promises of benefit violative of Section 8 (a) (1) of the Act. He made these state- ments prior to the election to Swarnes, Baumann, and Mannahan in individual con- versations, and in the two meetings of the cutting room employees he held during the week of the election. The plan was conceived to defeat the union activity of the cutting room employees, and the latter statements made by Waxman regarding its superior benefits had the same objective. It is significant that the record is com- pletely silent in regard to anything being done about the profit-sharing plan following the defeat of the Union in the May 24 election. I conclude and find that Respondent, in violation of Section 8(a)(3) and (7) of the Act, denied to Swarnes for 3 weeks the wage increase the other cutting room employees, with the exception of Mannahan, received on June 17. 1963. Respondent left unrebutted the testimony of Swarnes that he did not receive the increase for this period , and also his testimony of Shaw's and Waxman's statements to him on May 25, June 14, June 17, and in the first week of September 1963, that he was not getting the increase because of his union activity. No explanation of any kind was offered at the hearing by Respondent for denying Swarnes the increase for 3 weeks. In reaching a determination as to whether Mannahan was discriminatorily dis- charged and denied a wage increase , I consider significant the testimony of Man- nahan's leadership in the union activity starting in March 1963, his competence as an employee, and the high regard in which he was held by Respondent prior to the May 24 election ; Waxman's threats prior to and after the election of reprisals against employees for engaging in union activity ; Respondent's penalizing of Swarnes for his participation in the organizational effort ; Waxman's statement to Swarnes on May 25 ' See Angwell Curtain Company, Inc v N.L R B., 192 F 2d 899 903 (C A 7) ; N.L R B. v. Abbott Worsted Mills. Inc 127 F. 2d 438, 440 (CA. 1) ; Quest-Shon Mark Brassiere Co., Inc., 80 NLRB 1149 , 1150 , enfd. 185 F. 2d 285 ( C.A 2), cert denied 342 U S 812; Stokely Foods, Inc., 91 NLRB 1267, 1270, enfd . 193 F 2d 736 (CA 5) s Respondent's counsel questioned Mannahan's credibiliiv on his testimony that the announcement of the profit -sharing meeting was on April 29, 196 3, while Pilkinglon testi- fied that it was made somewhere around April 1, 1963 The testimony of Swarnes, Baumann, Phillips , and Perlstein corroborates the testimony of Mannalan . So does Waxman's. He was not asked by his counsel on direct examination when lie announced it. However, he testified that ie had its origin in late March or early April Two or three weeks at the least would be needed to have it "whipped up" in some way for presentation regardless of the motive for presenting it KAMP TOGS, INC. 205 and to Mannahan himself on June 7; that Mannahan would be fired for his union activity; Waxman's calculated exploitation of the opportunity he had to spread the rumor that Mannahan had threatened him after he had provoked him into talking about work he had done on certain machines in Respondent's plant following the December 1961 fire; 9 and Waxman's summary discharge of Mannahan on August 15 after Deputy Sheriff Windmiller had asked him to sign a search warrant to search Mannahan's home, without bothering to find out if there were any grounds in the sheriff's investigation of Mannahan that would make him an unsuitable employee. Upon this evidence, I find and conclude that Respondent discriminatorily discharged Mannahan and denied him a wage increase in violation of Section 8(a)(3) and (1) of the Act, because of his union activity. He did not discharge Mannahan because of what he said about the special work he had done following the December 1961 fire. Respondent had not discharged Pilkington on April 12, 1963, as he had a female employee who had had an affair with him, because he held the important job of pattern marker. However, Waxman's interrogation of Pilkington on May 1 in regard to his signing a union card, and on May 27 in regard to the way he voted in the election, indicates that he would have fired him if he had signed the card or voted for the Union, and have used the affair as a pretext for the discriminatory dis- charge. Waxman fired Mannahan because he signed a union authorization card, voted for the Union in the election, and was a leader in the organizational effort, and an observer for the Union at the election. His pretext for the discriminatory dis- charge is what he considers a threat made by Mannahan in early June 1963. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE'UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that Respondent be required to cease and desist from such unfair labor practices and take such affirmative action as appears necessary to effectuate the policies of the Act. In view of my findings that Respondent not only engaged in several acts of interference, restraint, and coercion, but also discriminatoiily dis- charged employee Victor Mannahan and denied him and employee Luke Swarnes a wage increase because of-their union activity, I shall recommend a broad cease-and- desist order against any interference with, coercion, or restraint of employees in the exercise of their protected activities. I shall recommend that Respondent offer Mannahan immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him and Swarnes whole for any loss of pay they suffered by reason of the discrimina- tion against them as provided in F. W. Woolworth Company, 90 NLRB 289, with interest at 6 percent per annum, as provided in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Respondent Kamp Togs, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By interrogating employees in regard to their union activity; by threatening them with closing down the plant, loss of employment, harsher working conditions, and denials of wage increases and a contract with a bargaining representative selected in a Board-conducted election, if. they engaged in union activity or voted for a collective-bargaining representative in a Board-conducted election; by engaging in surveillance or giving the appearance of engaging in surveillance of employees' union activities; and by promising a profit-sharing plan, wage increases, and additional vacation time if they abandoned union activity or voted against the Union in the election, Respondent engaged in conduct that interferes with, coerces, and restrains employees in the exercise of rights guaranteed them in Section 7 of the Act, in viola- tion of Section 8 (a)( 1 ) of the Act. 6 On -the evidence before me,- it- appears that Mannahan In early June 1963 could have threatened Waxman upon the latter telling him he would be fired, or could merely' have, made a plea that he be retained in his job In spite of his union activity,in view of the work be had done after the December 1961 fire. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By discharging employee Victor Mannahan and failing to reinstate him, and denying him and employee Luke Swarnes a wage increase because of their union activity, Respondent discriminated against employees in regard to hire or tenure of employment and terms or conditions of employment, to discourage membership in the Union, or in any labor organization, and the selection of the Union, or any labor organization, as collective-bargaining representative, in violation of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and pursuant to Sec- tion 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Kamp Togs, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, by discriminatorily discharging its em- ployees, denying them wage increases, 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 employees with respect to union activity or other concerted activity, in a manner constituting interference with, coercion, or restraint of em- ployees in violation of Section 8 (a) (1) of the Act. (c) Threatening employees with the closing down of the plant, loss of employ- ment, harsher working conditions, denial of wage increases and a collective-bargaining contract with a representative they select in a Board-conducted election, or other reprisals, if they engage in union activity, or other concerted activity, or select the Union or any other labor organization as their collective-bargaining representative. (d) Engaging in surveillance, or giving the appearance of engaging in surveillance, of employees' union activities, or other concerted activities. (e) Promising employees a profit-sharing plan, wage increases, additional vacation time, or other benefits, if they abandon union activity, or vote against the Union or any other labor organization in a Board-conducted election; however, any existing benefits are not hereby affected. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to join or assist the Union, 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, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the purposes of the Act: '(a) Offer Victor Mannahan immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him and Luke Swarnes whole for any loss of earnings they may have suffered by reason of the discrimination against them, together with interest at the rate of 6 percent per annum, in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all, payroll records, social security records, timecards, per- sonnel records and reports, and all other records necessary or useful to determine the amount of backpay and interest under the terms of this Recommended Order. (c) Post at its plant in Clarksville, Missouri, copies of the attached notice marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Director for Region 14, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days from the date of posting, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notice is not altered, defaced, or covered by any other material. 101f this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" In the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." KAMP TOGS, INC. 207 (d) Notify the said Regional Director, in writing, within 20 days from the receipt of this Trial Examiner's Decision and Recommended Order, what steps Respondent has taken to comply therewith." It is further recommended that unless on or before 20 days from the date of the receipt of this Trial Examiner's Decision and Recommended Order the Respondent notifies the said Regional Director, in writing, that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. "In the event that this Recommended Order is adopted by the Board, paragraph 2(d) thereof shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization of our employees, by discharging employees, denying them wage increases, or refusing to reinstate them, or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT question employees with respect to union activity or other concerted activity, in a manner constituting interference with, coercion, or re- straint of employees in violation of Section 8(a)(1) of the National Labor Relations Act, as amended. WE WILL NOT threaten employees with the closing down of the plant, loss of employment, harsher working conditions, denial of wage increases and a collec- tive-bargaining contract with a representative they select in a Board-conducted election, or other reprisals, if they engage in union activity, or other concerted activity, or select the Union or any other labor organization as their collective- bargaining representative. WE WILL NOT engage in, or give the appearance of engaging in, the sur- veillance of employees' union activities, or other concerted activities. WE WILL NOT promise employees a profit-sharing plan, wage increases, addi- tional vacation time, or other benefits, if they abandon union activity, or vote against the Union or any other labor organization in a Board-conducted election. WE WILL NOT in any other manner interfere with, restrain, or coerce em- ployees in the exercise of their rights to self-organization, to join or assist the above Union, 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, as guaranteed in Section 7 of the National Labor Relations Act, as amended. WE WILL offer Victor Mannahan immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him and Luke Swarnes whole for any loss of pay, including interest, which they have suffered by reason of the dis- crimination against them. All our employees are free to become, remain, or refrain from becoming or remaining, members of International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization. KAMP TOGS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify Victor Mannahan, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service Act and Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees may communicate directly with the Board's Regional Office, 4459 Federal Building, 1520 Market Street, St. Louis, Missouri, Telephone No. Main 1-8100, Extension 4142, if they have any questions concerning this notice or com- pliance with its provisions. Hotel & Restaurant Employees & Bartenders International Union, Local 343, AFL-CIO and Herman Turner and Resort Concessions, Inc., Party to the Contract . Case No. 3-CB-678. August 5, 1964 DECISION AND ORDER On April 1, 1964, Trial Examiner James T. Barker issued his Deci- sion in the above-entitled proceeding, finding that it would not effectu- ate the policies of the Act to assert jurisdiction over Resort Conces- sions, Inc., and recommending that the complaint herein be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Jenkins]. 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 entire record in this case, including the Trial Examiner's Decision, the ex- ceptions and briefs, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. [The Board dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on June 21, 1963, by Herman Turner, an individual, the Act- ing Regional Director of the National Labor Relations Board for Region 3, on Sep- tember 4, 1963, issued a complaint and notice of hearing designating Hotel & Restaurant Employees & Bartenders International Union, Local 343, AFL-CIO, as Respondent, and alleging violations of Section 8(b) (1) (A) and 8(b) (2) of the National Labor Relations Act, as amended, hereinafter called the Act. In its answer the Respondent asserted that the operations of Resort Concessions, Inc., have no im- pact upon commerce and, consequently, Resort Concessions, Inc., is not engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent further denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner James T. Barker at Monticello, New York, on September 26, 1963. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence,, to present oral argument, and to file briefs with me. The General Counsel presented oral argument and on November 12, 1963, the Respondent filed a memorandum of law with me. 148 NLRB No. 20.