M. Lowensten & Sons, Inc.

M. LOWENSTEIN & SONS, INC. 737 or refusing to reinstate , 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 offer Glen Jackson immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered by him as a result of our discrimination against him. WE WILL NOT in any manner interfere with, restrain , or coerce our employees in the exercise of their rights to self-organization , to form labor organizations, to join or assist the Union named above, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. All our employees are free to become or remain, or to refrain from becoming or remaining, members of Service & Maintenance Employees Union , Local 399, Building Service Employees International Nnion , AFL-CIO, or any other labor organization. PASADENA BOWLING CENTER Employer. Dated---------------r--- By------------------------------------------- (Representative ) ' , (Title) 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. Employees may communicate directly with the Board's Regional Office, 849 South Broadway, Los Angeles, California, Telephone No. 688-5206, if they have any ques- tions concerning this notice or compliance with its provisions. M. Lowenstein & Sons, Inc. and Lyman Printing & Finishing Go., Inc. and Textile Workers Union of America, AFL-CIO. Case No. 11-CA-2278. December 30, 1964 DECISION AND ORDER On May 26, 1964, Trial Examiner. C. W. Whittemore issued his Decision in the above-entitled proceeding, finding that the Re- spondents had engaged in tnd were engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, and recommending that they cease and desist therefrom and take certain affirmative action, as-set forth in the attached Trial Exam- iner's Decision. He also found that Respondent had not engaged in certain other unfair labor charges alleged in the complaint and recommended dismissal of these allegations. Thereafter, the Re- spondents filed exceptions to the Decision and a supporting 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 Fanning, Brown, and Jenkins]. The Board has considered the ' Trial, Ekami, er's Decision, the ex- ceptions, and the entire record in the case, and hereby adopts the 'The motion of the Charging Party to strike certain exceptions filed by Respondent, Lyman Printing & Finishing Co., Inc, is hereby denied 150 NLRB No. 66. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD findings, conclusions, and recommendations of the Trial Examiner, except as noted hereinafter 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts, as its Order, the Order recommended by the Trial Examiner and orders that the Respondent, Lyman Printing & Finishing Co., Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the following modifibation : Paragraphs 2(b), 2(c), and 2(d) are redesignated 2(c), 2(d), and 2(e), respectively, and a new paragraph 2(b) is included as follows: "Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstate- ment upon application in accordanc with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." 2 Respondents except to the Trial Examiner ' s conclusion that Lowenstein and Lyman constitute a single employer and are therefore jointly liable for the violations found herein. Lyman, doing business in South Carolina , is one of the wholly owned subsidiaries of Lowenstein , which is located in New York Its chief executive officer is a vice president and the general manager who holds no positions with Lowenstein Theie is no common board of directors or integration of operations They do not have a centrally controlled or common labor relations policy and Lowenstein is not involved in the day -to-day opera- tions of Lyman or otherwise involved in setting wages , hours, working conditions, or any other terms of employment of Lyman 's employees , nor was it involved in any way in the commission of the unfair labor practices found herein . Upon the entire record, we find merit in Respondents ' exception and shall dismiss the complaint as to Lowenstein. The Trial Examiner ' s Recommended Order and notice shall be modified accordingly. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASES Upon an original and three amended charges, filed by the above -named labor organization on various dates between October 18 and November 29, 1963, the Gen- eral Counsel of the National Labor Relations Board on March 13, 1964, issued his complaint and notice of hearing in the above -entitled case . An answer thereto was thereafter duly filed by Respondent Lyman Printing , but no answer has been filed by the Respondent M. Lowenstein.' The complaint alleges that both Respondents have engaged in unfair labor practices in violation of Section 8(a) (1) and (3) of the National Labor Relations Act, as amended . The answer of Respondent Lyman Printing denies the commission of the alleged unfair labor practices . Pursuant to notice, a hearing was held in Spartanburg, South Carolina, on April 13, 14, and 15, 1964, before Trial Examiner C. W. Whittemore. At the hearing all parties except M. Lowenstein were represented . All were accorded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. No briefs have been received , except a memorandum from General Counsel bearing upon his motion for "summary judgment" against the Respondent Lowenstein, upon which ruling was reserved at the conclusion of the hearing. Dis- i At the opening of the hearing the Trial Examiner granted a request made by Attorney Alexander to permit entry of an appearance for Attorney Rappoport. The latter, how- ever, did not appear at the hearing, and the record reveals no communication from hint since his filing a motion for dismissal , undated, with the Regional Director prior to the hearing. M. LOWENSTEIN & SONS, INC. 739 position of said motion, as well as that of a motion by the Respondent Lyman Print- ing for dismissal of the complaint, is made by the following findings, conclusions, and recommendations. After the close of the hearing General Counsel submitted a motion, bearing upon its face the consent of counsel for the Respondent Lyman Printing, for the inclusion among the formal documents in evidence of a registered mail receipt and service. The motion is granted and the document made a part of the record as requested. Upon the record thus made, and from his observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Lyman Printing & Finishing Co., Inc., is a South Carolina corporation, and is a wholly owned subsidiary of M. Lowenstein & Sons, Inc., a New York corporation. This finding rests upon the admission of the answer filed by Respondent Lyman Print- ing, despite the claim made by counsel for Respondent M. Lowenstein in his pre- hearing motion referred to in footnote 1, above, that his client neither owned nor operated Lyman Printing. It is also supported by the testimony of Vice President and General Manager Magarahan of Lyman Printing. Magarahan also testified that W. H. Grier, president of Lyman, is a director of M. Lowenstein, and that Robert Benhaim is the executive vice president of both corporations. Magarahan further testified the M. Lowenstein issues a "consolidated income statement-income tax return-and consolidated balance sheets are shown" for all its "related corpora- tions," including Lyman Printing. Although the complaint does not specifically allege that Respondent Lowenstein and Lyman Printing constitute a single, integrated enterprise and employer, I am convinced that a conclusion to this effect is fully warranted by the evidence in the record, and it is here made.2 Unless there be evidence to the contrary, it is reasonably to be presumed that the words "wholly owned" mean "wholly controlled." And here, as noted, the executive vice president of both corporations is the same individual. It would clearly be unreasonable to conclude that either labor or management policies of a wholly owned company should function counter to the open or tacit approval of the owner.3 It is admitted and found that Lyman Printing is engaged in the processing, finishing,' and manufacturing of cotton and synthetic textile products at a plant located in Lyman, South Carolina, and that during the year preceding issuance of the com- plaint it (1) purchased raw materials from points outside the State of South Carolina valued at more than $100,000, and (2) during the same period sold and shipped to points outside South Carolina products valued at more than $100,000. It is concluded and found that the Respondents are engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, AFL-CIO, is a labor organization admitting to membership employees at the Lyman plant , the only plant here involved. III. THE UNFAIR LABOR PRACTICES A. Setting and major issues The chief issues raised by the complaint arise from the admitted fact that the Respondent Lyman discharged five employees on or about August 20, 1963, Camp- bell, Farmer, Foster, Johnson, and Shelton, one employee, Fuller, on August 14, and another, Barnett, on September 12. General Counsel alleges and the answer denies that these employees were dismissed to discourage union membership and activity. There is no dispute, and it is found, that all the above discharges occurred during the Union's organizational campaign at the Lyman plant. Nor does the Respondent 3 The complaint does allege that the "Respondents" engage in commerce within the meaning of the Act, and that the "Respondents" engaged in certain unfair labor practices. 3 See Scott Manufacturing Company, et at , 133 NLRB 1012 Also rule 15(b) Federal Rules of Civil Procedure "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings " 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lyman deny its open opposition to the attempt to organize its some 2,000 plant employees. It concedes that it both posted and mailed to all employees a notice containing the following language: (1) Whether this Union shall come in at Lyman is, of course, a subject of concern to this Company. It is equally, however, a matter of serious concern to you, and our sincere belief is that if this Union were to get in here, it would not work to your benefit but, in the long run, would itself operate to your serious harm. In his covering letter, accompanying the mailed "Notice," General Manager Magara- han stated to employees that "this Notice is of vital importance to everybody who works at Lyman." In addition to the discharges and the above-quoted notice, the complaint alleges and the answer denies the commission of other management conduct of interference, restraint, and coercion of employees in the exercise of rights guaranteed by Section 7 of the Act. B. Other conduct of interference, restraint, and coercion Competent and credible testimony shows that subordinate management officials at Lyman proceeded to implement, by their individual conduct, the tacit threat of "harm" expressed in the general manager's communication to all employees, above- quoted. Such incidents include: (1) Employee P. J. D. Owens attended the early organizing meeting of the Union on August 1. The day after his attendance Overseer Langston, admitted by the answer to be a supervisor within the meaning of the Act, asked him if he had attended the meeting and "how many of our boys were there." Langston gave him some newspaper clippings claiming that the "CIO union" had furnished money for bonds for "Freedom Riders," and told him to "let the boys read them." 4 (2) Foreman Hawthorne (also conceded by the answer to be a supervisor within the meaning of the Act) asked the same employee if he had any "blue cards," by which it is reasonably inferred he meant union cards.5 (3) Employee Carlisle testified without contradiction, and it is found, that Second Hand Daniels, admitted by the answer to be a supervisor within the meaning of the Act, in mid-August asked him to confirm what he hid heard from another employee: that employee Williams had "offered us a (Union) card. The next day Overseer Daniels telephoned Carlisle and interrogated him in the same manner. (4) Shortly after the several summary discharges of August 20, to be later described, Assistant Overseer "Able" Harris at a local "launderette" met employee Ward and, according to his own testimony, interrogated the employee about "union activity" on the second shift. Also according to his own testimony, he "mentioned two or three color mixers on the second shift, and he (Ward) ... verified whether they had been attending Union meetings or not or talking union up in the color shop " Further, according to Harris' own testimony, he asked Ward if Owens, identified above, had "asked him to sign a Union card." At first Ward denied it, but after pressing his query, according to Harris, Ward finally admitted that he had been asked to sign by Owens.6 Harris then, he admitted, asked Ward to sign a statement to this effect. Ward declined. According to Ward's credible testimony, Harris explained that he wanted to fire Owens. The supervisor then asked Ward to follow him home- a wheel on his car was "wobbling"-and the employee did so. At Harris' home, Ward credibly testified, the supervisor finally told him that he would give him $20 if he would sign the requested "statement." 7 ' Toward the close of his case, counsel for Lyman assured me that-Langston was on his way to the hearing from the plant He did not appear, and after a recess counsel rested his case. Owens' credible testimony on this interrogation is therefore uncontradicted. 5 Like Langston, Hawthorne did not appear at the hearing, although counsel indicated that he was "on the way" Finally, General Counsel agreed-to stipulate that Hawthorne "would say that Preston J. D Owens told him that he had some blue cards and Hawthorne said `May I see one"'" L do not consider that this stipulation in any way controverts Owens' undisputed testimony that Hawthorne asked him if he had such cards OOnly in response to a leading question did Harris agree that this was "during work- ing hours " I can give small weight to this response. Harris denied only that he had told Ward anyone was trying to fire Owens, or that he had offered him anything to sign a statement The denials are not credited His admitted persistence in unlawfully trying to elicit information from Ward is consistent with his offering a reward for its receipt M. LOWENSTEIN &,SONS , INC. 741 I conclude and find that the above-described incidents of interrogation , of offering a reward for a statement implicating another employee , and of Harris' clearly implied threat that employees active in the Union were to be fired, all constituted interference, restraint, and coercion of employees in the exercise of rights guaranteed by Section 7 of the Act. Furthermore , such unlawful conduct serves as a signficant and relevant context in which to appraise the concurrent discharges. C. The discharges 1. The dismissals of August 20 Five employees of combined service with the Respondent Lyman of about 40 years were suddenly dismissed on or about this date-2 days after a union meeting at a Main Street hotel in Spartanburg. J. L. Johnson : Johnson, during the year and a half of his employment , was a sort of utility man, filling in on various jobs as needed . On the third shift of August 19 he was running a "sanforizer " under Overseer Brock and Second Hand McGowan. Johnson signed a union card at the hotel union meeting , and brought-a number of unsigned cards to the plant when he reported for work on his next shift , August 19. Before the end of the shift, early the next morning, another employee , Burdette, came to Johnson at his machine and asked for a card . Johnson told him to get one out of his lunch box nearby and Burdette did so. When Johnson reported for work the next night, August 20, Overseer Brock met him at the plant gate and took him to the personnel office, where he was discharged for soliciting "Union cards" during work- ing hours. Johnson denied that he had "solicited" during working hours, or that he had "hindered" other employees , as Brock claimed . I believe Johnson, not Brock. The testimony of the Respondent's witnesses concerning this dismissal-the two supervisors , Brock and McGowan,- and two employees, Burdette and Campbell-is so mutually inconsistent and contradictory that I can place no reliance upon any part of it. Second Hand McGowan claimed that he "was seeing him (Johnson ) off his job talking to other people ... six or eight times ," yet did nothing about it except to tell Brock about it when the latter came in to work next morning at 7 o'clock . It is the opinion of the Trial Examiner that a supervisor who says he' observed an employee under him neglecting his work six or eight times during a single shift yet fails even to suggest to that employee that he get back to his work deserves either not to hold a supervisor's position or not to be believed. Employee Burdette claimed that Johnson came to his "tender frame," about 150 feet distant, two or three times the night before the discharge and asked him to join the Union. - He refused each time , he said. On the third occasion , Burdette contended, Johnson thrust a card into his pocket and threatened to "whip" him if he did not sign it. Burdette said also that he later reported these matters to McGowan and gave him the "blue card." That he had a blue card to give to McGowan is, of course, consistent with Johnson's testimony that Buidette asked ,for, and obtained, a card from his lunch box. But on its face it is unreasonable to believe that Johnson would twice ask a fellow employee if he wanted to join the Union and, after twice being told "no," go to him a third time, force a card upon him, and threaten to "whip" him if he did not sign . Further discrediting Burdette is the admitted fact that he did sign a statement prepared for him 3 days after Johnson had been fired, containing in sub- stance what he testified to. I believe, from examination of documents in evidence, that the text of this statement signed by Burdette was prepared by Personnel Director Brooks, who admitted preparing similar text for another employee's signature , as will later be described . Nor can I ignore the undisputed fact, found above, that Super- visor Harris, on about the same date, tried to persuade employee Ward to- sign a similar statement against employee Owens. - Overseer Brock claimed that McGowan told him of the Burdette incident when he came in early August 20 , and of Johnson's talking to "several different people." He added, "Campbell is the only one .1 know about." According to Brock's own testimony, upon no more than McGowan's report, "I wrote his (Johnson 's time out and met him at the gate the following night." . The spectacle created by Brock's own testimony discredits him. Even if actually reported to him, the incidents were minor, and it is unreasonable to believe that a top supervisor-absent some other motive- should, without even asking the employee if the report were true , have his discharge made out and wait at the plant gate for him to report on the next night's shift. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furthermore , employee Campbell , also a witness for the Respondent , flatly refuted Brock's claim that he knew about Campbell before the discharge. Campbell testified that sometime during the shift in question Johnson did ask him to sign a card but that he did not voluntarily go to Brock or inform against his fellow employee until after Johnson had been discharged. Finally, there is not the slightest evidence that until after his attendance at the union meeting and his bringing cards to the plant had management ever had occasion even to criticize or complain about Johnson for any reason. In short, I am convinced , and conclude and find, contrary to the Respondent's claim that he was fired for disobeying rules, that Johnson actually was summarily dismissed to discourage union membership and activity , and that such discrimination constituted unlawful interference, restraint, and coercion.8 R. W. Foster For 2 years before his discharge this employee had been a dye mixer. At the time of his dismissal he worked on the third shift under Superintendent Gaino and during this period , so far as the record shows , Foster had never been warned or reprimanded for any dereliction. He signed a union card the day after the hotel union meeting at his machine in the plant. When he reported for work the next night he was sent to the personnel office, where Brooks, Gaino, and Night Superintendent Robinette were waiting for him. Brooks told Foster to come in the next morning and get his "time." He was told he was being discharged because he was "wandering around" hindering "other people performing their duties ." (The quotations are from Foster's credible testimony.) The Respondent offered no direct or credible evidence as to any incident of "wan- dering around" or "hindering" on the part of Foster . Gaino, it appears , no longer works at this plant , but was not shown to be unavailable as a witness . General Counsel for Lyman stipulated that if Gaino were called he would testify that "he discharged Foster" because he had "received a report from one of the night,super- visors that Foster was leaving his job and going into other departments ," and "got two reports from other departments that he was interfering with other employees...... Since the Respondent offered no testimony from any "night supervisor " or anyone from "other department," to support whatever Gaino might have claimed, had he been a witness , I do not consider myself bound to accept the truth of the matters so stipulated by counsel. Brooks was a witness , but far from impressive. He said he had nothing to do with the discharge except be present, and only heard that Foster had left his department. He admitted that Foster flatly denied the accusation. Apparently to give some semblance of support to the claim that at least one em- ployee was spoken to in the plant by Foster, the Respondent placed in evidence a document purporting to be the statement of employee "Farmer," to the effect that "on the night of August 19," while he was on the job, he was approached by Foster and asked to "sign a union card." It developed from Brooks' testimony , however, that he, himself, wrote the text, and that some supervisor , he did not know who, got Farmer to sign it. He said he did not recall whether he gave it to Gaino or not, nor did he have any idea when Farmer signed it. Foster flatly denied that he went to Farmer at his work station that night. In the absence of any competent evidence to refute the denial, it is credited by me. In short, I find no merit in the unsupported claim that Foster left his work or inter- fered with others on the night of August 19, or at any other time. The management-prepared document in evidence establishes that management at least believed Foster to be sympathetic to the Union , which it openly opposed. I con- clude and find that, like Johnson, Foster was discharged to discourage union member- ship, and that such discrimination constituted interference , restraint, and coercion. James V. Shelton: This employee had 10 years' service as an employee with the Respondent, and there is no evidence to show that management had ever found rea- son, until after he became active in the Union , to find any fault with his conduct or his work. Shelton attended the August 18 union meeting, and when he reported for work on his second shift the next day brought with him a number of unsigned "blue" cards in his pocket . He testified that on the second shift he obtained the signature of one employee to a card. At the conclusion of the second shift, on which he served as a 8 While not binding upon the Board , it is noted that the South Carolina Employment Security Commission , by its Appeal Tribunal, on December 5, 1963, concluded and decided that Johnson had been "terminated but not for misconduct connected with work." The relevant documents are in evidence as a Respondent 's exhibit. M. LOWENSTEIN & SONS, INC. 743 "greige tender," he was assigned to work overtime on the third shift by Chief Inspector Moore. (Contrary to the Respondent's claim, I find, on the basis of the testimony of Division Superintendent McCullen, to the effect ' that Moore assigns work, that Shelton is expected to "obey" him, and that Moore in fact is a supervisor within the meaning of the Act.) On the third shift Shelton was assigned to "pushing boxes" from one of several departments to another. According to his credible testimony, on this third shift he asked three different employees if they wanted to sign a card, but none did. One he asked during a break, another as he was helping him push a box, and a third in the "smoke room," where both were taking a smoke, as permitted . It is undisputed that on some of these trips into various departments Chief Inspector Moore went along with him to help push the boxes . Nor is there any credible evidence that any super- visor, at any time during his 16 hours of work , warned him or said anything about his work or trips through the plant. Not long after reporting for work on' his regular second shift, on August 20, he was taken to the personnel office where Brooks, Overseer Reese, and Superintendent McCullen were awaiting him. Reese asked him if he had worked overtime the night before, and he said he had. Brooks then declared that he had "five complaints that you have been bothering the help in five different departments," and that these included the sewing and towel departments, against the company policy. He was then discharged and told to come in the next morning for his pay. I consider it unnecessary to review in detail, here, the maze of inconsistent and implausible testimony of the many management witnesses concerning their claimed observation of Shelton on the night of August 19. Such witnesses included : Personnel Director Brooks, Assistant Overseer Medlock, Night Superintendent Robinette , Assist- ant Overseer Goodman, Overseer Reese, Superintendent McCullen, and Chief Inspector Moore. Yet it appears that no one of this array of management officials said a single word to Shelton that night about being where he was or where he was not supposed to be. And Superintendent McCullen candidly admitted that he had never heard of Shelton ever neglecting his work except on this one night. The discernible sum of all such testimony is to the effect various supervisors observed Shelton, while making rounds with boxes as he had been ordered to do by Moore, speak to other employees , but there is no evidence that such "speaking" in any way interfered with anyone's work. As to his going into the sewing room, or towel room , supposedly "off limits," I credit Shelton's testimony to the effect that he was instructed to go there by Moore. In summary, I find no merit in the Respondent's claimed reasons for dismissing Shelton. On the contrary, I conclude and find that Shelton, like Foster and Johnson, was discharged to discourage union membership and activity, and that such discrim- ination constituted interference , restraint , and coercion. Clara Mae Farmer: This employee, who worked in the sewing department, had more than 22 years' service with the Company when she was summarily and without previous warning discharged. The circumstances leading up to her dismissal are as follows : Early in February 1963 management inaugurated a "speed-up " system in the sewing room, where some 60 female workers were employed . As witnesses management officials readily con- ceded this "speed up" caused genuine dissatisfaction in the department and that such dissatisfaction was fully warranted is reasonably inferred from the fact that on at least three occasions since February, and up to August 19, management had found it necessary to make changes in the system . There is no doubt but that Farmer, of long service and conceded by management to be an "above-average" producer, was a leader in voicing protests against the "speed-up." On August 19, the day before her discharge, Superintendent Mullen told the sewers of a new change to be made effective the next day, and then left the plant. After Mullen left Farmer discussed the changes with his subordinate , Overseer Mahaffey. She suggested certain alterations in the newly announced policy, and the overseer, according to his own testimony, told her that he had no authority to modify it. Mahaffey then testified: "She asked me then about, how about Mr. Mullen and I said I would see him, but I do not think he will do it, and she said will you make arrange- ments to talk to Mr. Mullen, and I told her that I would because he was out of town...." It is clear both from his above-quoted testimony, as well as that of Farmer, that she asked him to speak to Mullen about her proposal, not that she asked to see Mullen herself. Despite his quoted testimony, Mahaffey then claimed that the next morning he told Mullen that Farmer "wanted to have an interview with him." This part of his testimony I do not credit. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The same day, August 19, according to Farmer's credible testimony, and after her discussion with Mahaffey that morning, she told Lee Simpson, assistant overseer, that "we are all going to join the Union" and that the Company would have to "pay for lost time and return to the old rates." The next morning she was taken to the office by the floorlady, where she was dis- charged by Mullen, who told her it was because she was "dissatisfied." This finding rests upon her credible testimony, and the circumstances as first described by Mahaffey. Mullen, however, testified that Farmer came in and told him she wanted to talk to him about the new rates, declared her dissatisfaction with them, told him she could make $100 a week selling produce, and that he then told her she was through. I cannot- credit Mullen's testimony as to the discharge. It is wholly inconsistent with her long and satisfactory service as an employee. Nor did employees them- selves believe that her "poor attitude" brought about her discharge, as is evidenced by Mahaffey's testimony that the next day after Farmer's discharge three other girls came to him, admitted they were in sympathy with the union movement, and asked if he was going to fire them. It is obvious that he did not fire them. I do not credit Simpson's denial of the fact that on August 19 Farmer had told him the girls were going "union," or that he so informed his superiors. The circumstances established by credible evidence lead to the reasonable conclu- sion, here made, that upon learning of Farmer's assertion that the girls in the sewing room were going "union" to obtain what they wanted, Mullen decided to take the summary action to discourage the threatened organizational movement. Such dis- crimination constituted interference, restraint, and coercion. Defoix Campbell: This employee, so far as the record shows, had been a satisfactory employee for some 4 years when, without warning, he was suddenly discharged on August 20. The dismissal falls within the familiar pattern of that involving Johnson, Shelton, and Foster-the Respondent's claim being that he was away from his work station and interfered with the work of others. Campbell's regular work was as a "starch mixer" on the third shift. On the night before his discharge, however, he was called in to do other work at 7 o'clock on the second shift-work which required his going into and through various departments. At 11 o'clock that night he resumed his regular task of tending two starch mixers which supplied certain "ranges" on the floor above. This work, it is undisputed, also required occasional absences from his mixers, either to obtain more "mix," or to ascertain from the floor above how many "yards" were to be run, in order to gage the amount of mix. According to his credible testimony, he performed his work, on both shifts, accord- ing to long-established practice, admitting that he went where this work required him to. There is no credible evidence that any supervisor, at any time during that long night of 12 hours, warned him for being away from his work station. As he entered the plant gate on August 20 he was met by Assistant Overseer Med- lock, who told him to report to Overseer Leonard. Leonard took him to Brooks' office, and there fired him, according to his own testimony, "because he did not fulfill his duties and also interfered with other employees," and based upon a report to this effect from Medlock, the third-shift foreman. I find no substantial or credible evidence that Campbell in any way "interfered with the work of others" that night from any witness. The gravamen of the accusations' made by the Respondent's witnesses is to the effect that twice during the third shift, Campbell permitted the mix to run out of his mixers, which caused brief delays in the operation of the ranges upstairs. There are claims that such failure could result in damage, but none is shown actually to have occurred. Campbell flatly denied that he knew anything about or had his attention called to running out of mix' that night, and I believe him. The one employee, Russell, called by the Respondent to testify concerning his "calendars" being down because of lack of "starch mix," admitted that "we have run out of starch before, and we have run out of starch since" the discharge of Campbell, but he never knew of anyone being dismissed for it. "A lot of times, a lot of things make starch run out," he added, much to counsel's obvious discomfiture. Nor did the Respondent offer any credible proof that any one, other than Campbell, had ever been discharged for this alleged dereliction. It is clear that, even if it were to be found that starch did "run out" a couple of times, this was not an infrequent occurrence. Had it been serious his superior, Medlock, would surely have reprimanded, or warned, the employee, but Medlock made no claim that he did either. I am convinced that Campbell was dismissed for reasons other than those claimed by the Respondent. M. LOWENSTEIN & SONS, INC. 745 Campbell was active in soliciting union card signatures near the plant, and in the "water house" or toilet, the day before his discharge, obtaining some 10 or 15 sig- natures. Although supervisors denied knowledge of such activity, I cannot believe them, in the context established by the Respondent itself-the number of willing informers whose signatures were purportedly obtained to statements written by Brooks. In short, I conclude and find that Campbell actually was dismissed, as were the others fired the same day, to discourage union membership and activity, and that such discrimination constituted unlawful interference, restraint, and coercion. 2. The discharge of C. V. Fuller on August 14 Fuller had been employed by the Respondent about 7 years when discharged on August 14. He was a "winder operator." In brief, his job consisted of taking a roll of cloth, cutting it to proper size, inspecting it, and "tagging" it. If holes or other imperfections were discovered these sections were supposed to be removed, spliced, or sewed. Fuller, as a witness, admitted that he had been told of written complaints about his work, that he once had been taken off this job for a 2-week period, and again had been suspended for 3 days because of bad work before his ultimate discharge. Overseer Garrett testified that 2 days before he had ordered the discharge, Fuller had failed to put certain labels on a "combination," as required by Government specifications, and extra help had been needed to remedy his failure and meet the delivery deadline. He further testified that the next day-the day before the dis- charge-Fuller ran some 2,500 yards that "were as bad as I have seen as far as streaks and mark-off is concerned." Fuller admitted that the cloth he had run and was shown to him was "bad" but that he could not recall as to his failure regarding the labels. Although the employee claimed that he had engaged "in union activities" he said he "couldn't remember exactly when," but thought it was "around somewhere in July." And he admitted that he never signed a union card himself. Finally, he admitted that -just a week before his discharge he had voluntarily told Garrett that he did not believe in the Union, and that a union "like to have starved me to death one time." Since it appears from Fuller's own testimony that Garrett had reason to believe that he shared management's own openly expressed opposition to the Union, there is small basis for a conclusion that he was discharged to discourage union member- ship and activity. It will be recommended that the complaint be dismissed as to this employee. 3. The discharge of Lee Barnett on September 12 Like Fuller, Barnett was a "winder operator." He had been employed for some 21 years by this Company when suddenly, without warning, he was discharged. Barnett is a "preacher." He attended the hotel union meeting previously described, led the meeting in prayer, got cards signed, and visited employees in their homes. Although it appears that in past years Barnett had opposed the efforts toward self- organization, Garrett corroborated his testimony that shortly before his discharge Barnett had objected vigorously to the imposition of certain time studies and declared that the Union was "coming in." According to Section Hand Moon, on.the day before Barnett's discharge, in rein- specting certain cloth the employee had previously run, he found about 800 yards that was faulty with "holes" and "doctors' marks." He reported the fact to Garrett. Moon, however, on cross-examination admitted that all such operators had "bad work" occa- sionally, and said that Barnett had been a "good worker" for the 8 to 9 years he had worked on his shift. Barnett admitted that on this occasion such "bad work" had been performed by him. Garrett, who claimed he discharged Barnett for the faulty work found by Moon, admitted that he had "supervised" Barnett for about 25 years, and never had even laid him off for any "bad work." He further admitted that it was company policy to "lay people off for a temporary time" only if their bad work was "severe." Thus it is clear, from Garrett's own testimony, that he failed to follow his own policy in his treatment of Barnett, and that it was in marked distinction from that accorded Fuller, who had been both taken off the job and laid off completely prior to his ultimate discharge. I do not believe that Garrett discharged Barnett because of the incident of bad work, but conclude and find that the discrimination was for the purpose of discouraging union membership and activity. Such discrimination con- stituted unlawful interference, restraint, and coercion. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The notice Consistent with White Oak Acres, Inc., 134 NLRB 1145-1150, I conclude and find that by the language in the notice posted and sent to all employees, quoted in section A, above, and especially in the context of other unfair labor practices herein described, the Respondents have interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. The implied threat that the "serious harm" would be inflicted by the Company in the context of events, became explicit in the minds of employees. Of significance on this point is the testimony elicited by the Respondent itself, to the effect that immediately upon the discharge of employee Farmer, three other female employees came to their supervisor and, in effect, expressed the fear that they might be discharged because they also were sympathetic to the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operations of the Respondents 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 the Respondents have engaged in unfair labor practices I will recommend that they cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It will be recommended that the Respondents offer immediate and full reinstate- ment to their former or substantially. equivalent positions, with6ut loss of seniority or other rights and privileges, to employees J. L. Johnson, R. W. Foster, James V. Shelton, Clara Mae Farmer, Defoix Campbell, and Lee Barnett, and make them whole for any loss of earnings they may have suffered by reason of the unlawful discrim- ination by payment to each of them of a sum of money equal to that which he or she normally would have earned as wages, absent the discrimination, from the date of the discharge to the date of offer of full reinstatement, and in the manner pre- scribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., Inc., 138 NLRB 716. In view of the serious and extended nature of the Respondents' unfair labor prac- tices, it will be recommended that they cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. M. Lowenstein & Sons, Inc., and Lyman Printing & Finishing Co. Inc., constitute a single employer within the meaning of Section 2(2) of the Act. 2. Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of employees, as described herein, to discourage membership in a labor organization, the Respond- ents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. 6. The Respondents have not engaged in unfair labor practices within the meaning of the Act in discharging employee Fuller. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case , I recommend that M. Lowenstein & Sons, Inc., and Lyman Printing & Finishing Co., Inc., the Respondents herein , their officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in and activity on behalf of Textile Workers Union of America, AFL-CIO , or in any other labor organization , by discharging, laying off, or refusing to reinstate any of their employees because of their union membership I M. LOWENSTEIN & SONS, INC. 747 of activities, or not in any other manner discriminating in regard to hire or tenure of employment, or any term or condition of employment. (b) Unlawfully interrogating employees as to their union sympathies, offering rewards to sign statements implicating other employees in union activities, or threaten- ing reprisals because of union membership or adherence. (c) In any other manner interfering with, restraining , or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer employees J. L. Johnson, R. W. Foster, James V. Shelton, Clara Mae Farmer, Defoix Campbell, and Lee Barnett immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to determine the amount of backpay due and the right of reinstatement under this Recommended Order. (c) Post at their operations in Lyman, South Carolina, copies of the attached notice marked `Appendix." 9 Copies of said notice, to be furnished by the Regional Director for Region 11, shall, after being signed by the Respondents' authorized rep- resentative, be posted by them immediately upon receipt thereof, and be maintained for a period of 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the receipt of the Trial Examiner's Decision, what steps they have taken to comply herewith.'° Finally, it is recommended that the complaint be dismissed as to C. V. Fuller. In the event that 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 woids "a Decision and Order " 10 In the event that this Recommended Order be adopted by the Board, this provision shall read "Notify the said Regional Director, in writing, within 10 days tram the date of this Order, what steps the 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 Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT discourage membership in and activity on behalf of Textile Workers Union of America, AFL-CIO, or in any other labor organization of our employees, by discharging, laying off, refusing to reinstate, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT unlawfully interrogate employees concerning their union sym- pathies, offer them rewards to implicate fellow employees in union activities, or threaten reprisals to discourage union membership and activity. WE WILL NOT in any other manner interfere with, restrain, or coerce employ- ees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL offer J. L. Johnson, R. W. Foster, James V. Shelton, Clara Mae Farmer, Defoix Campbell, and Lee Barnett immediate and full reinstatement to their former or substantially equivalent positions, and make them whole for any loss of pay they may have suffered by reason of our discrimination against them. M. LOWENSTEIN & SONS, INC. AND LYMAN PRINTING & FINISHING CO., INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NOTE-We will notify the above -named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the 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. Employees may communicate directly with the Board 's Regional Office, 1831 Nissen Building, Winston-Salem, North Carolina, Telephone No. 724 -8356, if they have any question concerning this notice or compliance with its provisions. Newspaper Guild of New York, Local 3, American Newspaper Guild, AFL-CIO and The New York Times Company New York Mailers' Union Number Six, International Typo- graphical Union, AFL-CIO and The New York Times Com- pany. Cases Nos. 2-CD-309-1 and 2-CD-309-2. December 30, 1961, DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, Series 8, as amended, following charges filed on August 26, 1964, by the Employer, The New York Times Com- pany, alleging the Newspaper Guild of New York, Local 3, Amer- ican Newspaper Guild, AFL-CIO, and New York Mailers' Union Number Six, International Typographical Union, AFL-CIO (herein called Guild and Mailers, respectively), have violated Section 8(b) (4) (D) of the Act. A duly scheduled hearing was held before Hear- ing Officer Jacques Schurre on September 29 and October 1, 6, 7, and 8, 1964. All parties appearing were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evi- dence bearing on the issues. The rulings made at the hearings are free from prejudicial error and are hereby affirmed. Briefs were filed by the Employer, and by the Guild and the Mailers who appeared at the hearing as parties to the dispute. Upon the entire record in the case, the Board 1 makes the following findings : 1. THE BUSINESS OF THE EMPLOYER The Employer is the publisher of The New York Times news- paper. Its papers are sold both within and without the State of New York. Its gross revenues during the past year were in excess of $1,000,000. Accordingly, we find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. '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 Panning, Brown, and Jenkins]. 150 NLRB No. 68.