Croscill Curtain Co.

National Labor Relations Board - Board Decisions

Mar 20, 1961

130 N.L.R.B. 1465 (N.L.R.B. 1961)

CROSCILL CURTAIN CO. & DURHAM DRAPERY CO., INC. 1465
indirectly . The making of a threat could be inferred , to be sure, from circumstantial
evidence if the only possible explanation of Frank Caputo's refusal to award the
electrical subcontract to Di Gangi were the making of the alleged threat. But it
is perfectly clear from the record in this case that , quite apart from any' question of.
the union affiliation of Di Gangi 's employees , Frank Caputo had ample reason to
prefer Thorstenson to Di Gangi as an electrical subcontractor.
So far as the Trades Council is concerned , I find also that Robertson , in approach-
ing Caputo Brothers , was not authorized to act on behalf of the Trades Council, and
acted solely on behalf of Local 3. I reach this conclusion because the record shows
that Robertson was not an officer of the Trades Council ; that he did not act as its
general agent; that his approach to Caputo Brothers was not specifically authorized
by it; and, finally, that the constitution and bylaws of the Trades Council expressly
prohibited the taking of any unlawful action.
In view of my findings of fact , there is no occasion for me to consider the con-
tention of counsel for Local 3 that the provisions of Section 8(b) (4) (ii ) (B), which
speak in terms of forcing any person by threats "to cease doing business with any
other person ," could not be said to have been violated in any case in which the
person threatened had no contract relationship or prior business relationships with
the person who was the object of the threat.
IV. THE QUESTION OF COMMERCE
Although Di Gangi is engaged in commerce , his own operations are not of suffi-
cient magnitude to meet the Board 's jurisdictional standards. The operations of
Caputo Brothers amply meet , however , such standards . As in cases arising under
Section 8 ( b)(4) of the Act the businesses of the employers involved may be com-
bined for jurisdictional purposes , the jurisdictional standards of the Board are
satisfied.
Upon the basis of my findings of fact , and upon the entire record in the case, I
hereby reach the following:
CONCLUSIONS OF LAW
1. Local 3 , International Brotherhood of Electrical Workers, AFL-CIO, and
Building and Construction Trades Council of Greater New York, AFL-CIO, are
labor organizations within the meaning of Section 2(5) of the Act.
2. Peter Di Gangi , doing business as Di Gangi Electrical Services, and Caputo
Brothers Coal and Fuel Corporation are persons engaged in commerce or in in-
dustries affecting commerce within the meaning of Section 2 ( 6) and (7) of the Act.
3. By engaging in the activities described in section III of this report , the Re-
spondents have not engaged in any unfair labor practice affecting commerce within
the meaning of Section 8(b) (4) (ii ) ( B) of the Act.
[Recommendations omitted from publication.]
Croscill Curtain Company and Durham Drapery Company, Inc.
and International Ladies' Garment Workers Union , AFL-CIO.
Cases Nos. 11-CA-1612 and 11-CA-1621. March 20, 1961
DECISION AND ORDER
On July 27, 1960, Trial Examiner Charles W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint, and recommended that the allega-
tions of the complaint to such extent be dismissed. Thereafter, the
130 NLRB No. 147.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel, the Charging Party, and the Respondent filed ex-
ceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 8(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, 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 Inter-
mediate Report, the exceptions, briefs, and the entire record in this
case 1 and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner to the extent consistent herewith.
In agreement with the Trial Examiner, and for the reasons given
in the Intermediate Report, we find that the record does not establish
that the Respondent violated Section 8(a) (5) of the Act, or that
employees Hall and Wethington were unlawfully discharged as alleged
in the complaint. Also in agreement with the Trial Examiner, and
for the reasons given by him, we find that the Respondent engaged in
conduct violative of Section 8(a) (1) and (2), and for the reasons set
forth hereinafter that the Respondent violated Section 8(a) (3) by
discriminatorily discharging employee Britt and laying off employee
Pleasant. However, we do not agree with the Trial Examiner's find-
ing that employee Jackson was discriminatorily discharged.
Britt was the leader of the union organizational movement. There
is no question that Respondent well knew and openly resented her
leadership. On March 15, Respondent' s general manager, in attempt-
ing to persuade Britt to "stop" organization of the Union, threatened
to fabricate proof that she was intimidating her fellow employees,
and stated that Respondent would do anything to stop the Union.
Her militancy in presenting employee protests against Respondent's
illegal threats and failure to live up to seniority promises led to the
plant manager's unrefuted threat to fire her and other committee mem-
bers on April 5. Then, on the morning of April 7, Britt was sum-
marily discharged by Respondent when an employee complained that
Britt was talking about the Union while the employee was working.
Respondent did not take the trouble to query Britt about the matter,
but promptly fired her.
The Trial Examiner found upon the basis of his credibility resolu-
tions and all the foregoing circumstances that Britt was discharged
because' of her union activities. Respondent asserts that Britt had
been talking to employees about joining the Union, had been warned
not to do so during working hours, and this was why she was dis-
charged on April 7. However, this defense was based upon testimony
1 The Respondent's request for oral argument is hereby denied as the record, exceptions,
and briefs adequately present the issues and the positions of the parties.
CROSCILL CURTAIN CO. & DURHAM DRAPERY CO., INC. 1467
of witnesses completely discredited by the Trial Examiner, but whose
testimony our dissenting colleague apparently is willing to accept,
despite the Board's standard practice of not disturbing a Trial Ex-
aminer's credibility resolutions unless the clear preponderance of all
the relevant evidence shows that they are incorrect 2 We find no such
basis in the record for rejecting the Trial Examiner's resolutions.
Indeed, even the dissenting opinion does not specifically state that this
is its predicate for finding that Britt's discharge was for cause and
not in violation of the Act. A sine qua non for not finding a viola-
tion here is the overruling of the Trial Examiner's credibility resolu-
tions and we have no reason for doing so. Instead, we find that Re-
spondent's threats to do anything to stop the Union, including if
necessary the discharge of Britt on the basis of fabricated evidence,
were carried out by Respondent's summary action in discharging Britt
without prior discussion with Britt or other employees, on the com-
plaint of an'antiunion employee who was placed at a machine directly
in front of Britt for the first time that day and who overheard some
trivial remark Britt made. Accordingly, we conclude, in agreement
with the Trial Examiner, that Britt was discriminatorily discharged
in violation of Section 8 (a) (3) of the Act.
As to Pleasant, the record clearly supports and we find, as did the
Trial Examiner, that he was laid off for his union activities and Re-
spondent seized upon the coincidence of a slack season as a pretext for
its unlawful action. Thus, Pleasant's layoff occurred in the following
context : He was unlawfully interrogated by his foreman as to whether
he had signed a union card; he was a member of the committee which
visited the plant manager and which was threatened with immediate
discharge; he was told shortly thereafter by his foreman that if he
"kept running around there talking about the Union," they would
get rid of him; he was among the group of committee members who
visited the plant manager to ask why Britt had been dismissed; and
he was told immediately thereafter by his foreman that the plant man-
ager had given instructions that he be laid off. We consider the facts
that Pleasant was not laid off in an earlier-slack season when he was
not engaging in union activities and the fact that he had performed,
and could perform, other jobs in Respondent's plant than that from
which he was laid off persuasive reasons supporting the Trial Ex-
aminer's finding that the Respondent was discriminatorily motivated.
On the basis of the foregoing, we find that the General Counsel
established a prima facie case of a violation by the Respondent as to
Pleasant. Unlike our dissenting colleague, we believe that under these
circumstances it was incumbent upon the Respondent to present evi-
dence in support of its defense beyond mere assertions that Pleasant
2 Standard Dry Wall Products , Inc., 91 NLRB 544, enfd. 188 F . 2d 362 (C.A. 3).
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was laid off because of the slack season and his work had slackened to
a point where it could be done by his foreman. This the Respondent
failed to do. Thus, for example, as the dissenting opinion observes,
although Pleasant had worked through a slack season when he was
not engaged in union activities, the record does not establish by how
much the Respondent cut back his work force at the time or whether
that slack period was comparable to the one during which he was laid
off. Again, although the record shows that Pleasant could and did
perform other job duties, it is not clear what the nature of those duties
was, the circumstances under which they were performed, and whether
such work was available at the time of his layoff. Our dissenting col-
league apparently, without so stating, considers these matters of proof
to be established by the General Counsel. In our view, the General
Counsel having made out his prima facie case, it was an essential, part
of Respondent's defense to go forward with evidence showing why
and how the earlier slack season differed from the one during which
Pleasant was laid off in respects other than his union activities in the
latter period and with evidence that there was no other work available
for him. Accordingly, we affirm the Trial Examiner's finding that
Respondent's layoff of Pleasant was discriminatory and thus violative
of Section 8 (a) (3) of the Act.,
In finding that Jackson was discriminatorily discharged, the Trial
Examiner stated that this employee was a member of the Respondent-
dominated committee previously threatened with discharge, that the
Respondent "admitted" that Jackson was laid off out of seniority, and
that no persuasive reason was advanced as to why she was selected for
layoff. The record, however, does not establish that Jackson was ever
a member of the committee in question, nor does the record show that
Jackson had been personally threatened with discharge or was part
of a group so threatened. Secondly, as to her seniority status, the rec-
ord does show that she had quit the Respondent's employ in October
1958 and was not rehired until February 1960, which would give her
an employment period at the most of only 2 months before her layoff.
As to the Trial Examiner's assertion that the Respondent admitted
Jackson was laid off out of seniority, the record shows only that when
the Respondent's witness was asked if there were other employees in
that department with less seniority than Jackson, the witness an-
swered "possibly." Finally, the record shows that Jackson was but 1
of some 19 employees laid off on April 7 for lack of work, and that
at the time of her layoff Jackson was told that she would be recalled
after the slack season ended.
In these circumstances, we find, contrary to the Trial Examiner,
that the General Counsel has not established by a preponderance of
the evidence that Jackson was discriminatorily discharged.
CROSCILL CURTAIN CO. & DURHAM DRAPERY CO., INC. 1469
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders the Respondent Croscill Curtain Com-
pany and Durham Drapery Company, Inc., its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Ladies' Garment
Workers Union, AFL-CIO, or in any other labor organization of its
employees, by discharging, refusing to reinstate, or in any other man-
ner discriminating in regard to hire or tenure of employment or any
term or condition of employment.
(b) Initiating, promoting, or sponsoring, or in any other manner
interfering with, the formation and administration of employee repre-
sentation committees, or any other labor organization.
(c) Threatening employees with reprisals or making them promises
of benefit to discourage membership in or activity on behalf of the
above-named or any other labor organization or interrogating them
concerning their union membership and activities in violation of Sec-
tion 8 (a) (1) of the Act.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist any labor organization, to bargain collectively through
representatives of their own. choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other mu-
tual aid or protection; or to refrain from any or all such activities.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer Ardie Britt and W. G. Pleasant immediate and full rein-
statement to their former or substantially equivalent positions, with-
out prejudice to their seniority and other rights and privileges, and
make them whole for any loss of earnings they may have suffered by
reason of the discrimination against them, in the manner set forth
in the section of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board and
its agents, all records pertinent to the determination of the backpay
due the above-named employees.
(c) Post at its plant in Durham, North Carolina, copies of the
notice attached hereto marked "Appendix." 3 Copies of said notice,
to be furnished by the Regional Director for the Eleventh Region,
shall, after being signed by the Respondent's representative, be posted
immediately upon receipt thereof and maintained for 60 consecutive
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for the Eleventh Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and hereby is, dis-
missed insofar as it alleged that the Respondent violated Section
8 (a) (5), and 8 (a) (3) as it relates to employees Hall, Wethington,
and Jackson.
MEMBER RODGERS, dissenting in part :
Unlike my colleagues, I would not find that either Pleasant or Britt
was discriminatorily discharged.
As to Pleasant, the record clearly supports the Respondent's claim
that this employee was laid off for economic reasons. It is undisputed
that the Respondent, because of the spring slack season, found it neces-
sary to lay off a number of employees-in fact some 58 layoffs were
made during this period. Pleasant was but 1 of a group of 19 em-
ployees so laid off on 1 day-April 7. It is uncontradicted that the
work Pleasant was doing on April 7 had slackened to the point where
it could be done by Pleasant's foreman, thus obviating the need for
Pleasant's services at that time. In my view, these factors adequately
explain Pleasant's layoff.
Moreover, matters cited by the Trial Examiner as his basis for
questioning the Respondent's motive in selecting Pleasant as one of
those to be laid off do not have record support. The Trial Examiner
described Pleasant as "experienced in other departments," inferring
that instead of laying Pleasant off the Respondent should have trans-
ferred him to another department. The Trial Examiner also states
that Pleasant "never before had been laid off during such periods,"
here inferring that Pleasant's layoff was a departure from past prac-
tice and therefore makes the Respondent's motive suspect. As to
Pleasant's "experience," the record merely shows that outside of his
regular job as an assistant receiving clerk, Pleasant had "cut some,
and work[ed] some in the shipping department." This, in my view,
does not support a finding that Pleasant was "experienced in other
departments." As to his having worked during other slack periods,
the record shows only that Pleasant had been hired the previous
September and was not in the Respondent's employ during any past
spring slack period. Thus, although Pleasant had work through one
slack period, occurring around Christmas, this record does not estab-
lish by how much the Respondent cut back his work force at that time,
or whether that slack period was at all comparable to the period
occurring in the springtime.
CROSCILL CURTAIN CO. & DURHAM DRAPERY CO., INC. 1471
As to Britt,4 the record shows that a number of complaints had been
made to the Respondent by other employees concerning Britt's badger-
ing them about joining the Union. It was testified that Britt followed
employees to the restroom and approached them at their machines,
expounding her union view and trying to get them to sign union cards.
At least one employee was told by Britt that if she did not sign a card,
she would be laid off. Understandably, the Respondent ordered Britt
not to engage in union activities during working hours and warned
her that if she did she would be discharged. As late as April 5, Britt
was warned three times to go back to work. On the morning of April
7, Britt, notwithstanding the warnings, began talking about the Union
while employee Nellie Goodwin was trying to do her work. Britt so
annoyed Goodwin that Goodwin left her machine and told her super-
visor, "I am just not going to sit here and listen to that all day, .. .
You can move me or I'll go home." When the matter was reported
to the plant manager, the plant manager discharged Britt.
In view of the repeated warnings given Britt against harassing and
intefering with the work of other employees, I would find that the
Respondent's discharge of Britt immediately following, as it did,
Britt's disregard of those warnings was for cause and not in violation
of the Act.
'The testimony of Respondent 's witnesses concerning Britt was not, as characterized
by the Trial Examiner, "confused, contradictory, and inconsistent." Contrary to my
colleagues ' assertion , the decision. in Standard Dry Wall Products , supra, does not preclude
the Board from considering testimony which a Trial Examiner may have found un-
reliable for reasons like those given by the Trial Examiner here if those reasons, as is
the case here , do not reflect the state of the record. See Jackson Maintenance Corpora-
tion, 126 NLRB 115, enfd. 283 F. 2d 569 (C.A. 2)..
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL NOT initiate , sponsor, or promote or interfere with the
administration of any employee representation committee, or any
other labor organization of our employees.
WE WILL NOT discourage membership in International Ladies'
Garment Workers Union , AFL-CIO, or in any labor organiza-
tion, by discharging , 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'threaten employees with reprisals or make them
promises of benefit to discourage membership in or activity on
behalf of the above -named or any other labor organization, nor
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will we interrogate them concerning their union membership and
activities in violation of Section 8(a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the above-named or
any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective. bargaining or other
mutual aid or protection, or to refrain from any or all such
activities. -
WE WILL offer Ardie Britt and W. G. Pleasant immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and.
privileges, and make them whole for any loss of pay they may
have suffered by reason of the discrimination against them.
CROSCILL CURTAIN COMPANY AND
DURHAM DRAPERY COMPANY, INC.,
Employers.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been filed and duly served in each of the above -entitled cases; an
order consolidating the cases , a consolidated complaint and a notice of hearing
thereon having been issued and served by the General Counsel of the National
Labor Relations Board ; and an answer having been filed by the above -named em-
ployers, herein called the Respondent , a hearing involving allegations of unfair
labor practices in violation of Section 8(a)(1), (2 ), ( 3), and (5) of the National
Labor Relations Act, as amended , was held in Durham , North Carolina , before the
duly designated Trial Examiner on June 14, 15 , and 16, 1960.
At the hearing all parties were represented and were afforded full opportunity to
be heard , to examine and cross -examine witnesses , to introduce evidence pertinent
to the issues , to argue orally upon the record , and to file briefs . Oral argument
was waived . Briefs have been received from General Counsel and the Respondent.
Disposition of the Respondent 's motion to dismiss the complaint , upon which
ruling was reserved at. the conclusion of the hearing , is made by the following
findings, conclusions , and recommendations.
Upon the entire record thus made, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Croscill Curtain Company and Durham Drapery Company, Inc., are North
Carolina and New York corporations. They own and operate a plant in Durham,
North Carolina, and engage in the manufacture and sale of curtains.
During the 12-month period before issuance of the complaint the Respondent
purchased and shipped to the Durham plant, from points outside the State of North
Carolina, raw materials valued at more than $60 ,000. During the same period
CROSCILL CURTAIN CO. & DURHAM DRAPERY CO., INC. 1473
finished products valued at more than $88,000 were sold and shipped from the
Durham plant to points outside the State of North Carolina.
.The Respondent concedes , and it is found , that it is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies ' Garment Workers Union , AFL-CIO, is a labor organization
admitting to membership employees of the Respondent.
Ill. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
All major issues here involved arose within a period of less than a month after
the Charging Union, in mid-March of 1960, began organizing among the some 250
employees at the Respondent's plant.
There is no dispute that local management, consisting chiefly of Plant Manager
Herbert Schwartz and General Manager Al Rosen, vigorously opposed and tried
to discourage the efforts of any labor organization to represent their employees.
On Friday, March 11; a number of male employees stopped work and "sat down"
in the shipping department. When Rosen came to them, they told him they wanted
a union and an increase in pay. Rosen replied.that the plant would close down
before a union would be permitted, but promised to give them a raise and would
let them know the amount the next day. Rosen further stated that they "didn't have
to come down here to give us jobs," because "up in New York . those Puerto
Ricans would work for anything." The next afternoon Rosen.returned to them,
cited a few cents raise which would be given, remarked that there were union leaflets
being distributed outside the plant, and declared again, in effect, that the plant would
close before a union would be recognized.'
That same Saturday afternoon an official of United Textile Workers of America,
and two employees (one of them being Ardie Britt, whose discharge is in issue)
were passing out union literature on the public street outside the plant. Both
Schwartz and Rosen went out to them and Schwartz threatened to call the police
unless they left. They remained.
Later the same day employees met with representatives of the Charging -Union,
and the Textile Workers withdrew their organizational efforts. Many employees
signed cards that day and the next, authorizing the Charging Union to represent
them.
The following Tuesday, March 15, under circumstances described more fully in
a later section, Schwartz asked Ardie Britt, the employee leader of the union
activity, to form a committee representative of different plant departments in an
obvious attempt to stem the growth of adherence to an ouside labor organization.
The Respondent's conduct in this respect is in issue as an alleged violation of
Section 8(a) (2) of the Act.
It appears that Schwartz' efforts as to this committee went astray. It became
militantly concerned with, the interests of- employees and not of management in
opposing :the Union. Finally, on April 7, Britt was summarily discharged as were
two other members of the committee. Their dismissal, and that of two additional
employees, are in issue. -
On March -29, a union business agent met with officials of the Respondent,
claimed majority representation, and asked to negotiate an agreement. The Re-
spondent has not recognized the Union, a fact which raises the issue of refusal to
bargain.
Also involved, as independent violations of Section 8(a)(1) of the Act, are
items. of conduct claimed as promises of "benefit, illegal interrogation, and threats of
economic reprisals.
B. Interference, restraint, and coercion
Credible evidence, much of it uncontradicted, establishes; and the Trial Examiner
concludes and finds, that the following conduct was engaged in by responsible agents
of the Respondent:
1. As noted in section A, above, on March 11 and 12, 1960, Manager Rosen
threatened employees with closing of the plant if they organized a union.
' Rosen merely denied that be ever told any employee that the plant would close for
this reason. In view of the many other antiunion remarks attributed to him which are
undisputed , the Trial Examiner does not credit this general denial.
597254-61-vol. 130-94
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. 'On March 15, after having been called into the office by Schwartz, Ardie Britt
was told by Rosen that "the Kahns" did not want a union and would not have one
in the plant .2 Rosen asked her what he could do to get her to "stop the union."
When she replied that she had not started it, could not stop it, and would not try to
unless that was the wish of the employees, Rosen declared that he would prove that
she did, and "could get people to say" that she had tried to force them to join.
When Schwartz intervened, and said they knew she had not "done that," Rosen
insisted, in effect, that they would do anything to "stop the whole thing." 3
3. On March 16 management distributed among plant employees a bulletin con-
taining promises of a "schedule for fringe benefits," concerning holidays, vacation
pay, health and life insurance, and rest periods. Following the itemized promises,
there appeared on the document this text:
As you know someone has been around lately trying to get some of our
employees to join a union. Like most unions, they are promising everything
under the sun . . . just to get you to sign up with them. Don't be fooled by
all those promises.
In order to help you, we believe it is important for you to know just what
benefits we have planned for you in our shop. Then you can see why we
honestly feel that you are better off without the union.
After reviewing the promises of benefits already listed, the bulletin concluded: "Why
should you pay dues to outsiders who promise you benefits which you will get
anyway?"
4.
n the same day Rosen assembled all employees, read the above document to
them, and added that while the union organizing had not "caused" the giving of
such benefits, it did "hurry up" the granting of them.
5. On March 31 Foreman Carl Ennis called the cutting-room employees together
and told them that the "company" would guarantee jobs to all who had not' signed
union cards.
6. Forelady Peggy Oakley interrogated employees Pendergraft and Barbour as to
whether they signed union cards.
7. Forelady Marie Dameron asked employee Billy Gortno in March if he had
signed a union card and told him "they would close up and move before they. would
have a union."
The conduct and statements described above constituted interference, restraint,
and coercion of employees in the exercise of rights guaranteed by Section 7 of the
Act.4
C. The committee
The complaint alleges and the answer denies that in mid-March management
sponsored and promoted an employee representation committee and thereafter domi-
nated it, in violation of Section 8(a) (2) of the Act.
The evidence amply supports General Counsel's claim.
As noted above in section B, Rosen was unsuccessful on March 15 in persuading
Ardie Britt to "stop" organization of the Union by threatening to fabricate proof that.
she was intimidating her fellow employees. Schwartz, the same day, was somewhat
more successful in diverting her energies into another channel, but obviously toward
the same end. He asked her to get a committee together to "come into the office and
talk with him, to see if they would straighten out the situation there." 5 She
acquiesced. That he not only promoted and sponsored the committee formation but
also interfered with the selection of committee representatives is made clear by the
unrefuted testimony that he disapproved one employee Britt proposed and told her
to pick someone else. Schwartz asked her to have the committee in his office a
half-hour before closing time, without punching out their time.
At the appointed time Britt and seven or eight other employees, selected by her
and Schwartz as representing various departments in the plant, went into the office.
Rosen there told them he had been in touch with New York all afternoon "getting
things lined up" as to what the Company "planned for people at the plant." He in-
formed them of the benefits which were further described by the circular distributed
the next day, as noted above. He also told them that all employees would be get-
2 The "Kahns" referred to were Abraham and George , president and vice president,
respectively, of the Respondent, whose -headquarters were in New York.
8 The quotations are from Britt's testimony, uncontradicted.
A The answer concedes that Ennis, Oakley, and Dameron are supervisors within the
meaning of the Act.
8 Quotations are from Britt 's testimony , undisputed.
CROSCILL CURTAIN CO. & DURHAM DRAPERY CO., INC. 1475
Ling a raise. When one committee member said , "If this is brought on by the
union 's presence , if the union goes out, how will we know that part of it if not all of
it would not be taken away," Rosen assured them that he would make it binding
by putting it in writing.
Rosen added that while he and Schwartz had no personal objections to a union,
"the big bosses in New York" just were not "going to have it."
There appears to have been no other meeting of this committee with management
until March 28, after employees began to complain that the Company was not keep-
ing its promise made as to seniority in its seasonal layoffs. Britt and the committee
asked for and obtained an interview with Rosen , Schwartz at the time being on
vacation . The members protested that the promise was not being kept. Rosen said
that he would look into it , but warned them again that the plant would close down
entirely before a union would be permitted.
As a result of this protest by committee members, it is reasonable to infer, manage-
ment became persuaded that its intention to set it up to take care of the "union " situa-
tion had fallen somewhat short of the mark.
For on May 5, shortly after his return to the plant, Schwartz summarily threatened
to fire all of the committee members when they tried to discuss with him the threats
being made by supervisors concerning union membership and activity. Although it
is undisputed that an appointment had been made through another management
official to interview Schwartz at a certain time that morning , and they appeared at
the office at the appointed time, Schwartz halted the discussion promptly, crisply
told them that the supervisors would not stop , and ordered them all back to work at
once or befired.
Two days later, as described below, the head of the committee, Ardie Britt, and
two other committee members, W. G. Pleasant and Lillie Jackson , were discharged.
The committee ceased functioning with these dismissals , so far as the record
reveals.
D. The discharges
1. Donna Hall
The Trial Examiner does not believe that the record contains evidence sufficient
to support the allegations of the complaint to the effect that this employee was dis-
missed on March 18 to discourage union membership and activities.
Hall was not called as a 'witness . While it is established that another employee
saw her sign a union card on March 12, there is no evidence that the fact became
known to management before her dismissal. On the contrary, while it does appear
that she was laid off out of seniority (despite the fact that 2 days earlier management
in the above -described bulletin had assured all employees that seniority would be
observed ) there is no evidence to rebut Schwartz' testimony that she was laid off
that day, along with five or six others, because of lack of work and because it was
the beginning of the seasonal layoff.
The Trial Examiner concludes and finds that evidence will not sustain the com-
plaint 's allegations as to Hall.
2. Alice Wethington
When laid off on April 1 , Wethington had been . an office worker since early in
February 1960 , and, except for one girl being trained in special work , had least
seniority . Although as an office clerical worker she would have been excluded from
the unit the Union was claiming to represent , she signed a union card in mid -March.
According to her own testimony , however, she told no one in the office about having
signed until March 31 , and then only after she had learned that she was probably to
be laid off. After becoming convinced , on March 31 , that a layoff would affect her,
she went with Ardie Britt to the office and informed Rosen that she had signed a card.
That night she was formally told by an office supervisor that she would be laid off at
the end of the next workday , April 1. Another office girl, Joanne Pleasants, was
laid off at the same dime.
The Trial Examiner does not consider that General Counsel has made out a prima
facie case as to Wethington . Her own testimony bars a finding that management
was informed that she had signed a union card until after , as she admits, she had
"a feeling something was going on that I didn 't know."
And no evidence was adduced to rebut the testimony of management witnesses
that at a meeting of either March 30 or 31 of office supervisors and management, it
was decided that because of lack of work the office force would be cut back by two
employees. - -
Under these circumstances the Trial Examiner concludes and finds that evidence
is insufficient to support the allegations of the complaint as to this employee.
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Ardie Britt
As to Britt, there can be no question but that management well knew, and openly
resented, her leadership in the union organization movement. As previously de-
scribed, she was selected to head a committee which management hoped would stem
the campaign. Her militancy in presenting employee protests against illegal threats
and the failure to live up to seniority promises led to Schwartz' unrefuted threat to
fire her and others on April 5.
She was summarily discharged on the morning of April 7, by Schwartz, on what
credible evidence shows was a trumped-up charge that Britt was interfering with the
work of others. That morning, for the first time, an antiunion employee was placed
at a machine immediately in front of Britt. This employee overheard some trivial
remark Britt made, and complained to the supervisor, who in turn reported to
Schwartz, that- either she be moved or she would go home. Schwartz admitted that
he did not take the trouble to query Britt about the matter, but promptly fired her.
The Trial Examiner believes it unnecessary, in view of the undisputed display of
management's hostility toward Britt because of her union activity and of the above-
cited precipitating incident, to review in detail all the confused, contradictory, and
inconsistent testimony offered by the Respondent for the purpose of showing that
Britt actually was discharged because of her union activity during working hours.
The Trial Examiner can place no reliance upon any of such testimony, and finds no
merit in the reason for the discharge advanced by the Respondent. Schwartz' own
testimony reveals that not until after he had discharged Britt did he call in some of
the employees to query them about Britt.
The preponderance of credible evidence, the Trial Examiner concludes, sustains the
allegations of the complaint as to Ardie Britt.
4. W. G. Pleasant
Pleasant, an assistant receiving clerk, was also dismissed on April 7. As in the
case of Britt, convincing and uncontradicted testimony establishes that management
well knew of his union adherence. He had taken part in the sitdown strike of
March 11, previously described. He was interrogated by his foreman, Charles
Michol, as to whether he and others had signed union cards. He admitted that
he had signed one but'declared he did not know as to others.
Pleasant was a member of the committee led by Ardie Britt, and was among those
who visited Schwartz the morning of April 5 and were threatened with immediate
discharge. Shortly after this occasion, his foreman told him that if he "kept
running around there talking about the Union," they would get rid of him.
Pleasant was among a group of committee members who, in the afternoon of
Britt's discharge, visited Schwartz to ask why she had been dismissed. Immediately
thereafter he was told by Michol that Schwartz had -given instructions that he
be laid off.
. It appears to be the Respondent's claim that Pleasant was laid off temporarily,
but would be recalled at the end of the slack season. No persuasive reason was.
advanced by Schwartz, however,, to show why Pleasant, who never before had been
laid off during such periods, should have been selected on this occasion. He was
experienced in other departments.
Because of the undisputed fact that both Schwartz and his foreman threatened
him with discharge shortly • before his actual dismissal for reasons associated with
his union activities, the Trial Examiner is convinced and finds that this activity,
and not the slack season, was the real factor motivating the action. It is further
concluded that this action was designed to discourage union membership and to
interfere with rights guaranteed employees by the Act.
5. Lillie Jackson
Jackson, an experienced employee, who had first worked for the Respondent in
1958, was also dismissed on April 7. She also was a member of the committee
previously described, and was among those whom Schwartz threatened to fire on
April 5. There is no dispute that about this time she was seen by supervisors and
Rosen at a lunchroom in company with Britt and two union representatives.
On April 7, later during the same day of Britt's discharge, Foreman Ennis came
to Jackson, referred to Britt, and remarked, "That's what the damn people, union
people will get you into."
Shortly thereafter she was sent to the office to pick up her check, and was told
she was laid off.
As in the case of Pleasant, it appears to be the Company' s claim that Jackson was-
also laid off due to the slack season. Her varied experience, however, as an em-
CROSCILL CURTAIN CO. & DURHAM DRAPERY CO., INC. 1477
.ployee. casts grave doubt upon the validity of this claim, unsupported as it is by
any. persuasive reason as to why she should have been selected. Schwartz ad-
mitted that she was laid off out of seniority.
The Trial Examiner is convinced , and finds that Jackson was discriminatorily
discharged to discourage union activity and membership and that the action was
designed to interfere with employees' rights guaranteed by the Act.
E. The alleged refusal to bargain
There is no dispute as to the fact that the Respondent has declined to recognize
the Union as the exclusive bargaining representative of its employees since that
organization made a demand and claimed majority representation status during the
• last week of March 1960.
The major question for resolution here is whether in fact the Union actually
represented a majority of the employees on the payroll for the week ending March
29-the crucial date according to General Counsel.
The Trial Examiner has carefully checked the various documents-lists and cards-
as well as certain stipulations in the record, and unless he has erred in his account-
ing, the evidence falls short of establishing majority on that date.
The basis for this conclusion is as follows. Early in the proceedings General
Counsel placed in evidence a list of 236 names of employees in the alleged appro-
priate unit, apparently drawn from the payroll as of March 29, 1960. Late in the
hearing, by stipulation, 7 more names were added, bringing the total to 243. As-
suming the validity of General Counsel's claim (which actually lacks convincing
proof in the record) that 5 of these 243 individuals should be excluded because
supervisors within the meaning of the Act, the total is reduced to 238. Careful
check of all authorization cards in evidence and stipulations as to other signers
reveals, according to the Trial Examiner's calculation, at the most only 116 em-
ployees who had signed cards on or before March 29.
Majority not having been established, the refusal-to-bargain issue must fall.
Having reached this conclusion, it appears unnecessary to the Trial Examiner to
pass upon another phase of the Respondent's case-its claim that, because of its
expectation to recall at the end of the slack season many employees laid off before
March 29, the March 29 payroll list was inappropriate for checking purposes.
F. Conclusions in general
The Trial Examiner concludes and finds that the Respondent (1) unlawfully set
up, sponsored, and interfered with the administration of the above-described
representative committee of employees; (2) discriminatorily to discourage member-
ship in the Charging Union discharged employees Ardie Britt, W. G. Pleasant, and
Lillie Jackson; and (3) by such conduct and by the threats, promises, and interro-
gation described above in section III B has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed by Section 7 of the Act.
It is further concluded and found that the evidence is insufficient to sustain alle-
gations of the complaint (1) as to the discharge of Donna Hall and Alice Wething-
ton, and (2) as to the refusal-to-bargain issue.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the 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 obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take cer-
tain affirmative action to effectuate the policies of the Act.
It will be recommended that the Respondent offer employees Ardie Britt, W. G.
Pleasant, and Lillie Jackson immediate and full reinstatement to their former or
substantially equivalent positions, without loss of seniority or other rights and
privileges, and make them whole for any loss of earnings they may have suffered
by reason of the discrimination against them, and in accordance with the Board's
remedial policies set out in F. W. Woolworth, 90 NLRB 289, and Crossett Lumber
Co., 8 NLRB 440.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the unfair labor practices found strike at the very heart of the Act, it will
be recommended that the Respondent cease and desist from in any manner in-
fringing upon rights guaranteed employees by Section 7 of the Act.
Upon the basis of. the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Ladies' Garment Workers Union , AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to hire and tenure of employment of Ardie Britt,.
W. G. Pleasant , and Lillie Jackson , thereby discouraging membership in the above-
named labor organization , the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (3) of the Act.
3. By initiating , sponsoring , and promoting an employee representation com-
mittee, and thereafter interfering with its administration , the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a) (2)
of the Act.
4. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
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 affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Lancaster Welded Products , Inc.' and Shopmen 's Local Union
No. 519 of the International Association of Bridge , Structural
and Ornamental Iron Workers , AFL-CIO, Petitioner. Case
No. 4-RC-4390. March 20, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Milton S. Maclasky, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to provisions of Section 3(b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Leedom, and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Employer refused to stipulate at the hearing that the Peti-
tioner is a labor organization within the meaning of the Act. As it
appears that the Petitioner exists for the purpose of bargaining with
employers on behalf of its members concerning terms and conditions
of employment, we find that the Petitioner is a labor organization
within the meaning of Section 2(5) of the Act.-
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6)" and (7) of the Act.
1 The name of the Employer appears as amended at the hearing.
130 NLRB No. 145.