Emple Knitting Mills

National Labor Relations Board - Board Decisions

Feb 26, 1964

146 N.L.R.B. 106 (N.L.R.B. 1964)

106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL request Arthur Klar d/b/a Program Publishing Co., and National
Publishers , Inc., to offer immediate and full reinstatement to Anthony Fasanaro
to his former or substantially equivalent position.
WE WILL jointly and severally with Arthur Klar d /b/a Program Publishing
Co. and National Publishers , Inc., make Anthony Fasanaro ' whole for any loss
of pay he may have suffered as a result of our unlawful request that he be
discharged..
LOCAL H-63, MOTION PICTURE HOME OFFICE
EMPLOYEES , STAGE EMPLOYEES AND MOVING
PICTURE MACHINE OPERATORS , AFL-CIO,
Organization.
Dated---------- --- - ----- 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, Fifth
Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No.
751-5500, if they have any question concerning this notice or compliance with its
provisions.
Emple Knitting Mills and International Ladies' Garment Work-
ers' Union , AFL-CIO. Cases Nos. 1-CA-4154 and 1-CA-4233.
February 26, 1964
DECISION AND ORDER
On November 8, 1963, Trial Examiner Fannie M. Boyls issued her
Decision 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 af-
firmative action, as set forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that the Respondent had not engaged,
in certain other unfair labor practices, and recommended that the al-'
legations of the complaint pertaining thereto be- dismissed. There-
after, the General Counsel and the Charging Party each filed excep-
tions to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section. 3.(b) of. the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers 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 Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
these cases,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner. .
The Respondent filed no exceptions . to the Trial Examiner ' s unfair labor practice
findings. -
146 NLRB No. 13.
EMPLE KNITTING MILLS
ORDER
107
The Board adopts as its Order the Recommended .Order 2 of the
Trial Examiner.
2 The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record In these cases, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondent, its officers, agents, successors, and assigns, shall:
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on April 12, 1963, by International Ladies' Garment Workers'
Union, AFL-CIO, a complaint was issued on May 17, 1963, alleging that Respondent,
Emple Knitting Mills, by discriminatorily discharging employee Jimmie Lee Phillips
and by other conduct had violated Section 8(a)(3) and (1) of the National Labor
Relations Act. Respondent filed an answer denying that it had engaged in any
unfair labor practice.
A hearing at which all parties were represented was held before Trial Examiner
Fannie M. Boyls on July 15, 16, and 17, 1963, at Bangor, Maine. Thereafter,
upon motion of the General Counsel, the record was reopened, the complaint was
amended to allege that Respondent had further violated Section 8 (a) (3) and (1) of
the Act by discriminatorily discharging another employee, George L. McKay, and a
further. hearing was held at Bangor, Maine, on August 29, 1963. Respondent
amended its answer at the hearing to deny the unfair labor practices alleged in the
amendment to the complaint. The parties waived their right to argue orally at both
hearings but the General Counsel and Respondent subsequently filed briefs which I
have carefully considered.
Upon the entire record in the case and from my observation of the witnesses at
the hearing, I make the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS
Respondent is a Maine corporation maintaining its principal office and place of
business in Brewer, Maine, about 2 or 3 miles from the city of Bangor. It is engaged
in the manufacture, sale, and distribution of knitted goods and related products. In
the course and conduct of its business-it annually sells and ships knitted goods having
a value in excess of $50,000 directly to points outside the State of Maine. Respond-
ent concedes, and I find, that it is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union,
is a labor organization within the meaning of Section 2(5) of the Act.
III. THE 'ALLEGED UNFAIR LABOR PRACTICES
A. Background and issues
Respondent's business is a seasonal one, the number of its employees and produc-
tion fluctuating each year with the orders Respondent receives for sweaters. During
the peak season it sometimes employs as many as 200 or 300 employees, but this
number may drop to as low as 40 or 50 employees during off seasons.
In March 1963, when business was near a peak for that year, a union organiza-
tional movement started at'the plant. Upon learning of the organizational activities,
Respondent frankly informed its employees that it did not want a union in the plant.,
The complaint alleges that in order to defeat the Union's efforts and discourage its
employees' membership in the Union, Respondent also coercively interrogated em-
ployees regarding their union activities, requested employees to engage in surveillance
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the union activities of fellow employees, promised its employees better working
conditions if they ceased their union activities, provided three of its employees, Jimmie
Lee Phillips, Roger A. Stackpole, and Gerald L. Watt, with less employment because
of their union activities, and later discriminatorily discharged two employees, Jimmie
Lee Phillips and George L. McKay, because of their union activities. The issues are
purely factual. The evidence relative to them is set forth below.
B. Chronology of events
1. The organizational campaign and Respondent's reaction thereto
The Union had sought unsuccessfully to organize Respondent's plant in 1953 and
again in 1961. In March 1963 some of the employees expressed a renewed interest
in union representation and one of them, Roger Stackpole, sought out a union or-
ganizer who arranged for a meeting at the Bangor House in Bangor, Maine, 2 or 3
miles from the plant, for the evening of Thursday, March 14. About 12 employees,
including those alleged in the complaint as targets of discrimination by Respondent,.
attended the meeting and received union cards to pass out to other employees.
On the following day these employees, or some of them, started soliciting other
employees to join the Union. Respondent's executive. vice president, Karl W. Nass,.
learned of this renewed organizational activity almost immediately and on Saturday,.
March 16, at a production meeting with Respondent's supervisors, admonished them
to follow a "hands off" policy regarding the employees' union activities. This policy,.
however, as the evidence shows, was concededly not adhered to by Respondent's.
treasurer and chief executive officer, Joe Emple, and by its president and plant su-
perintendent, Samuel Rolsky, and, according to General Counsel's witnesses, by some
of the supervisors.
On March 19 during the lunch period, six employees, including George McKay
and Gerald Watt, placed union cards in cars parked on the employees' parking lot.
Shortly after lunch, according to the testimony of Charlotte McKay (George
McKay's wife), Respondent's president and plant superintendent, Rolsky, paused at
a table in the packaging department where she was working and told her "that he
hoped George and [she] didn't get mixed up in any union activity." Rolsky denied
that he made this remark to her and that he said anything to her or any other
employee for or against the Union.' He conceded, however, that he knew about the
cards being placed in cars on the parking lot. Some employee, he explained, had
brought him one of the cards. He asked the employee where he got it, and the-
employee explained that it had been placed in a car. Rolsky then asked the em-
ployee who put it in the car and the employee seemed reluctant to tell and did not
tell Rolsky:
On March 20, the day following the distribution of union cards on the parking
lot, Joe Emple called a meeting of all the employees and delivered a short talk on
the subject of the Union's organizational drive which was later published in the-
March 25 issue of Respondent's "Emnit News." He told the employees:
WELL-here we go again-
The Union has started to solicit members among our employees.
In 1961, . we pinned their ears back with their lies, distortions, half truths„
phony promises and wild rumors.
So before this thing gets rolling, and some of you get so involved that you
will feel you can't back out, let me tell you frankly and bluntly exactly how I
feel about it.
I don't want a Union in my plant. I don't think it will serve the best interest
of my employees. I prefer to deal with each of you directly and not through
a third party.
He then predicted how the employees would be approached to join the Union and
the things the Union would tell them it could do for them, assured the employees
that the Union could not guarantee them anything, and that those who said they
could make Respondent come to terms "don't know Joe Emple." He added:
It always surprises me that a Union campaign starts out in such a sneaky,
undercover manner. .
This remark attributed to Rolsky is not alleged. in the complaint to be an, unfair labor
practice and the testimony regarding it was adduced. at the. reopened hearing apparently
in support of the allegation that George- McKay was discriminatorily discharged. Since
for reasons set forth hereinafter I am not persuaded that Respondent was motivated by
antiunion considerations in selecting George McKay for termination, I find it unnecessary-
to resolve, and do not resolve, the conflicting testimony on that point.
EMPLE KNITTING MILLS 109
Why? It's : perfectly legal! . ' I have no legal way of preventing it! I can't
fire a person for such activities.
But I can question the sincerity of his motives when he has never expressed
any real grievances or gripes to me.
Finally, Emple adjured the employees to question the motives of those asking them
.to join the Union and asked the employees to be as frank and fair toward him as he
had been toward them.
Taking to heart Emple's characterization of their organizational campaign as
being "sneaky" and "undercover," three employees in Foreman Nickerson's knitting
sections decided to distribute union cards openly at the front entrance of the plant
on the next morning, March 21. As these three, Jimmie Lee Phillips, Roger Stack-
pole, and Gerald Watt, handed out the union cards, Foreman Gyles and two of the
foreladies passed them, and Rolsky, coming from his parking space, paused to look
at them.
In the latter part of March, production declined and the hours of the knitters,
who for about 2 months had been working 50 hours or more a week, were reduced.
In this connection knitters on Foreman Leighton's crew were brought in on
Saturday to work on machines normally operated by Foreman Nickerson's crew.
According to the credited testimony of Roger Stackpole-corroborated by Phillips
except as to the date, but denied by Nickerson-about April 1, during the morning,
Phillips, whose machines were next to Stackpole's, asked Nickerson when he would
be back on a 50-hour week. Nickerson replied that "when he stopped his outside
activities he would get back his 50 hours." Stackpole gave the following account
of what happened shortly thereafter when Nickerson came to his machine and sat
down beside him:
I said, Nick, what's this you are telling Jimmie- Phillips, "if you will stop
your outside activities, you will go back on a 50 hour week?" He didn't answer.
He just went storming down to Jimmie. He said, "Jimmie, what are you telling
Roger that I have told you that if you would stop your outside activities you
would be on a 50 hour week?" and before Jimmie could reply, I said, "Nick,
I heard you say it." And before he could answer to me, the bell rang for lunch
at 12 o'clock.
Phillips testified that in the afternoon of the same day that Nickerson told him
there would definitely be no more Saturday overtime, Nickerson came to him and
said he was not interested in Phillips' outside activities. The General Counsel, by
directing Phillips' attention to the date March 29 and asking Phillips what happened
on that date and what further happened on that date, placed both these statements
as occurring on March 29. Phillips noticeably hesitated before testifying that in
the afternoon of the date to which the General Counsel directed his attention
Nickerson said he was not interested in Phillips' outside activities. I interpret his
hesitancy to an uncertaintly concerning the sequence and the date on which Nicker-
son made the latter statement. It seems.more probable to me that such statement
was made on the afternoon of April 1 or thereafter in order to try to counteract
the effect of the statement overheard by Stackpole, or, as Nickerson testified, to
counteract rumors he heard that Phillips was claiming that Nickerson was picking
on him because of his outside activities? In any event, I am not persuaded, in view
of top management's expressed hostility to the Union, that Nickerson's renunciation
of interest in Phillips' outside activities had the effect of dispelling the coercive effect
of his statement overheard by Stackpole.
There is also evidence that about March 29, Louis Gyles, foreman of the cutting
department, interrogated employee Phyllis Folster, a sister of Roger Stackpole,
about the Union. Mrs. Folster had gone to Gyles' office to inquire as to the reason
for her. low paycheck. She testified that after receiving an explanation and as she
started to leave, Gyles asked her if she had heard of the Union being around. She
replied that she had. He then asked if she had "heard of anybody pushing it."
Folster replied that she had not. He then asked whether, if she heard of anybody
pushing it, she would get in touch with him. She. replied that she would think
about it.
Foreman Gyles denied ever having any discussion with Phyllis Folster about. the
Union. He testified that he had been instructed by Nass not to discuss the Union
with any employee and that he had followed those instructions. From her appear-
? Nickerson testified that he was aware that union activities were going on in his depart-
ment around this time and that he had heard that Phillips and Stackpole were union
advocates.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance and demeanor on the witness stand Folster impressed me as a very conscien-
tious and honest witness. I credit her testimony rather than that of Foreman Gyles.
There is also testimony by Jimmie Lee Phillips that during the latter part of March
when he and other employees were congregated around Foreman Nickerson's table
or desk, discussing the Union's progress, Foreman Leighton, who was working at the
desk, told them, "Be careful." Leighton testified, however, that he was present.at
the desk during the lunch periods only when it was necessary to do some paper
work that at such times he did not normally pay any attention to the employees' dis-
cussions, that he did not recall any union discussions around the desk, or any state-
ment by himself that anyone should be careful, and that if he ever made any such
.remark to anyone, it was not in connection with union activities. Leighton testified
in a forthright and convincing manner, and I credit his testimony.
Viewed in the context in which the incidents occurred and against the background
of Emple's antiunion speech, and Rolsky's admitted interrogation of an employee as
to the identity of the person who placed a union card in the employee's car, I find that
Respondent, as alleged in the complaint, violated Section 8(a)(1) of the Act by
the following conduct: Foreman Nickerson's statement to Phillips that he would go
back on a 50-hour week when he stopped his outside activities-meaning union ac-
tivities; and Foreman Gyles' interrogation of Folster as to whether she had heard
of anybody pushing the Union and his request that she let him know if she heard of
anybody pushing it. Foreman Nickerson's statement clearly amounted to a promise
of better working conditions conditioned upon Phillips' abondonment of his union
activities, and Foreman Gyles' conduct constituted not only coercive interrogation
but was also plainly a request that Folster act as an informer regarding the em-
ployees' union activities or sympathies.
2. The alleged discriminatory denial of Saturday overtime work to employees
Phillips, Stackpole, and Watt
As already noted, Respondent's business is basically a seasonal one. Respondent
normally manufactures only to fill orders and although these orders tend to arrive
in anticipation of back-to-school and fall and winter demands, Respondent's peak
season may vary somewhat from year to year. In 1962, Respondent's busiest season
was in May and June and in the fall. In 1963, due to a decision by Respondent
to manufacture pursuant to special orders which it expected to receive but some of
which did not materialize, the peak season started earlier and by February, Respond-
ent was employing about 200 people. The number of employees, however, gradually
decreased thereafter and by July 16, Respondent employed only 149. Nass normally
interviewed applicants for jobs and when hiring them he would tell them that the
work season might end late in August or in September, October, or November, with
only a chance that the employee might be retained on a year-round basis.
Respondent's knitting department is divided into four sections. Listed in the order
of those requiring the greatest skill they are: the cable or cal stitch section, the 6-cut
machine section, the 3-cut machine section, and the trim section. Foreman Leighton
was in charge of the two sections requiring the higher skills and Foreman Nickerson
was in charge of the other two sections. In March 1963, Leighton had eight men on
his crew and Nickerson had six on his.
On most Saturdays in 1963, prior to March 30, Nickerson's crew, and apparently
other knitters also, had been working at least part of the day and the employees, in
general, apparently welcomed this opportunity to earn overtime pay. During the
.week preceding March 30, Nickerson informed his crew that they would not be
working on Saturday, March 30. When they learned that Foreman Leighton's crew
would be working on their machines in their place on Saturday, Phillips, Stackpole,
and Watt were decidedly unhappy, for except when a regular crew member was
absent and when Nickerson's crew was also working, no knitter from outside their
own section had ever before operated their machines. - They believed that they were
entitled to their anticipated 50 hours of work so long as their machines could provide
that much work. On two successive Saturdays Leighton's crew operated the ma-
chines normally operated by Nickerson's crew.
Nickerson explained to the knitters who asked him. why, that Leighton's crew was
being assigned to the Saturday work in order to spread the available overtime work,
and this was the explanation given by Respondent at the hearing? According to
3 This explanation was also in line . with a memorandum dated April 2, 1963, and dis-
tributed to all personnel. It explained that until Respondent's accounts gave a clearer
picture of its requirements, Respondent intended to mark time for about a week or two
and temporarily limit overall production rather than lay off personnel and operate with
a reduced staff.
EMPLE KNITTING MILLS 111
Nass, the more skilled operators on Leighton's crew were qualified to operate the:
machines in Nickerson's,sections and there was insufficient work on their own ma-
chines to afford those operators as much overtime as was available for Nickerson's
crew. In order to distribute the overtime work fairly and take care of the more
valuable employees supervised by Leighton, Nass ordered this temporary distribu-
tion of Saturday overtime work. Records showing the hours worked in each section
of the-knitting department by each employee between January 5 and June 29, 1963,
tend to substantiate Respondent's explanation.
Although Phillips, Stackpole, and Watt may honestly have believed that they were
being discriminatorily deprived of Saturday overtime work because they had. openly
distributed union cards in front of the plant on March 21, and because of Nickerson's
statement to Phillips about April 1 that if he stopped his outside activities he would
be back on a 50-hour week, I am not satisfied that union considerations had anything
to do with Nass' decision. Almost all the knitters in Leighton's as well as in Nicker-
son's crew had joined the Union and were active in its behalf. They, as well as
Nickerson's crew members, attended the initial union meeting and they placed
union cards in cars in the parking lot. George McKay, whose alleged discriminatory
discharge is discussed infra, was a member of Leighton's crew. The General Counsel,
in my view, has not established by a preponderance of the evidence that Phillips,
Stackpole, or Watt were discriminatorily deprived of Saturday overtime work.
3. The discharge of Phillips
Jimmie Lee Phillips, whose union activities have been previously described, was
hired by Respondent on December 18, 1962. His wife was later also hired. They
lived about 20 miles from the plant and rode to and from work together in their car.
They employed a babysitter who objected to staying late unless given a reasonable
notice ahead of time. For some time during Phillips' approximately 3'/z months
tenure of employment his workday more frequently than not extended beyond 3:30
p.m., the regular quitting time, and his wife would wait at the mill for a ride home
with him. On several occasions during this period he was not asked until quitting
time to work overtime. He had discussed his babysitter problem with Foreman
Nickerson and had requested that he be given a day's notice in advance when Re-
spondent wanted him to stay overtime in the evenings.
Phillips testified that during the afternoon of April 4, Nickerson came to him and
asked if he would work overtime that evening. Phillips replied that he would have to
talk to his wife who worked in another department. Phillips then talked to his wife
who made arrangements with her forelady to work overtime also. Phillips reported
this fact to Nickerson and told Nickerson he would try to get in touch with the baby-
sitter. Phillips had no telephone at home so he attempted to get word to the baby-
sitter by telephoning her husband. However, no one answered his telephone. Phil-
lips had intended to try to reach the babysitter's husband again about 3:30 p.m. but
in the meantime his wife reported that there would be no overtime work for her
after all. Phillips then reported the situation to Nickerson who said it would be
all right for Phillips to go home. Stackpole also refused to work overtime that
evening for the asserted reason that he had not been given sufficient notice.
According to Phillips, about 10:30 a.m. on the following day, Nickerson asked
Phillips to work overtime that evening also. Phillips replied that he could not do so
because his babysitter was leaving town for the weekend and could not stay overtime
and because Phillips' wife had no way of getting home except with Phillips.
As Phillips started to leave the plant at 3:30, the regular quitting time, Nass
called to him and said, "As of today, Jimmie, we won't need you any more." After
getting his paycheck, Phillips saw Stackpole, who had also again refused to work
overtime, and requested Stackpole to accompany him while he asked Nass the
reason for his discharge. When asked for the reason, Nass replied that he was not
satisfied with Phillips' work or his attitude. According to Stackpole, Nickerson
also told Phillips that another reason for Phillips' discharge was that Respondent
was "having to make room for the old men," that some of the night shift cable
machine operators were being transferred to Phillips' work. He further testified
that Phillips inquired as to the reason Leighton's crew was being given Saturday
work on the machines normally operated by Nickerson's crew, and that Nass replied
that "he was doing this to be fair and split up the hours between the two crews."
Nass gave the following explanation for Phillips' discharge. Because of a dimin-
ishing amount of work to be done, it was necessary to lay off two employees on
April 5. One employee, Thompson, from Foreman Leighton's crew was selected for
layoff because he was the least senior. Phillips, although having approximately the
same seniority as four or five other new men in the department, was selected for
744-670-65-vol. 146-9
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
layoff because he was uneven in his work performance , excitable,Aemperamental,•
and resentful of criticism and instructions by his supervisor. The decision to lay'
off Thompson and Phillips was made on April 2 or 3, but the decision to convert
Phillips' layoff into a discharge, Nass asserted, was made on April 5 when he
observed Phillips walking off the job at regular quitting time for the, second suc-
cessive day instead of working overtime as he had been requested to do.
Nass explained that for the week ending April 5, 1963, it had been anticipated
that production requirements would furnish each of the employees of the knitting
department about 40 hours of .work. But by Thursday, production was behind
schedule and it was decided to ask Nickerson's crew to work overtime on Thursday,
April 4, and on Friday, April 5, and to have Foreman Leighton's crew work on
Saturday as it had done on the preceding Saturday.
Nass further testified that on or about March 12-before the commencement of
union activities-he had called both Phillips and Stackpole into, his office and
accused them of "laying down" on production after each had requested, but failed
to receive, wage increases and after Nickerson had reported that Phillips had said he
would leave if he could not make more than $1.35 an hour. Believing that Phillips
and Stackpole were concertedly slowing down their production, he told them at that
time that they were not to measure out to Respondent what they thought Respondent
should get on daily production and that if they were not satisfied, they were free to
leave. He testified that Respondent was indulgent in permitting employees to
decline overtime work in unusual circumstances but that when both Phillips and
Stackpole failed to work overtime on April 4, he suspected that they were again
engaging in concerted action and that Phillips' babysitting problem excuse, about
which Nickerson informed him, was "a discovered inconvenience." Nickerson
apparently also shared this belief for, although he did not normally report to Nass
which employees worked overtime and which did not, he did report to Nass on
April 4, explaining that he felt this was a personnel problem rather than a knitting
problem. According to Nass, Nickerson had reported to him on April 4 that he
requested Phillips and Stackpole to work overtime on both April 4 and April 5,
and that there was a possibility that Phillips and Stackpole would again refuse to,
work overtime the next day. It was against this background that when he saw
Phillips and Stackpole leaving at 3:30 p.m., on April 5, he decided to discharge
rather than merely lay off Phillips.
On the following Monday morning, April 8, Nass called a meeting of all the
employees, at which he explained Respondent's production problems, reassignments,
and the reasons for laying off Thompson and discharging Phillips. With respect to
Phillips, he told the employees that Phillips had been discharged because of his lack
of cooperation on overtime assignments and his belligerent and antagonistic attitude.
After the meeting, he called Stackpole aside and told him that he considered Stack-
pole just as much in the wrong as Phillips in leaving his work at 3:30 p.m. on the
preceding Friday but that in view of Stackpole' s long service with Respondent, he
was suspending discipline for, the time being.
Foreman Nickerson confirmed Nass' account in substantial respects. He testified
that Phillips could be and was at times a "damn good worker" but had a belligerent
attitude, resented being told what to do, and often failed to do the good work he was
capable of doing. Nickerson was consulted by Nass in the selection of a man from
his crew for layoff and concurred in the selection of Phillips because he was not as
good a worker as some of the others and was one of the new employees. Contrary
to previous practice, he was not consulted by Nass about the discharge of Phillips.
He had, however, discussed with Nass Phillips' refusal to work overtime on April 4
and the two of them had decided to overlook or excuse this refusal in view of the
shortness of notice given to Phillips. -
Nickerson testified, contrary to Phillips, that he informed Phillips on April 4 that
he would be needed on both April 4 and 5 for overtime work. I think it more
likely, however, that Nickerson was not certain on April 4 whether it would be
necessary to work overtime on April 5 in order to meet the week's quota of pro-
duction, and either did not ask that Phillips work overtime on April 5, as Phillips
testified, or did not definitely state that ,,the Friday overtime would be necessary.
Stackpole credibly testified, and I find, that although he did not hear what Nickerson
told Phillips, when Nickerson asked him, Stackpole, on April 4 to work overtime
that day, Stackpole inquired whether he would also be needed for overtime on
April 5, and that Nickerson replied that he did not know yet.4 In any event, I, am
4 Stackpole particularly impressed me as a forthright and truthful witness and when-
ever the testimony of Nickerson and Phillips appears to be inconsistent with his, I accept
Stackpole 's version..=
EMPLE KNITTING MILLS 113
satisfied that both Nickerson and Nass in good faith believed that Phillips, in
connivance with Stackpole , was being obstinate and uncooperative in failing to make
some arrangement to comply with Respondent 's request that they work overtime
on April 5 . Stackpole's conduct appears to have made this a reasonable assump-
tion . Shortly after Nickerson inquired whether Stackpole could work overtime. that
evening , April 5, Stackpole asked whether their machines were going to be run by
Leighton 's crew the next morning . When Nickerson replied in the affirmative,
Stackpole retorted , "I am sorry . I can't work tonight." In view of Stackpole's
previous statement to Nickerson that he thought it unfair to permit their machines
to be operated on Saturday by Leighton 's rather than Nickerson's crew and Phillips"
agreement with Stackpole , it was a reasonable assumption by Nickerson and Nass
that Phillips ' and Stackpole 's failure to work overtime was in rebellious protest
against management 's decision about Saturday work.
I find that the General Counsel has not established by a preponderance of the
evidence that Phillips ' discharge was motivated by his union membership or activities
rather than by Respondent's belief that he was being purposely uncooperative in re-
fusing to work overtime as requested.
4. The layoff of George McKay
George L: McKay was one of the employees previously mentioned who attended the
initial union meeting and thereafter, along with most of the knitters and some of
the women employees , placed union cards in cars on the employees ' parking. lot. He
was also one of those active in soliciting union memberships and passing out cards
in front of the plant. He, along with practically all the knitters , started wearing
union buttons in June. .
McKay was hired by Respondent in January 1952. By 1957 he had become a
full-time mechanic on Foreman Leighton 's crew. He was considered by Respond=
ent as a good worker and had never been laid off during his more than. 11 years'
tenure with Respondent . During slow production periods -when the machines he
normally serviced were shut down, McKay did cleanup work and assisted his foreman
at odd jobs.
Except where specifically noted below , there is no substantial dispute as to the facts
leading up to McKay 's termination , which Respondent says was a layoff. In De-
cember 1962 , McKay informed his foreman, Leighton , that he and his family were
planning to move to Texas in the latter part of June 1963 . Leighton asked whether
his brother John was going with him and McKay replied that John was not.
Leighton communicated this news to Nass . Shortly thereafter , in January, ac-
cording to McKay, Nass asked him the reason why he was leaving and McKay ex-
plained that he was not earning enough money and felt that he had no future at his
current employment . Nass stated that he would like to help McKay but that the
$ 1.70 an hour which McKay was then receiving was the top wage Respondent paid.
Nass commented that McKay had always done good work and that "any time that
[he] wanted [his] job at Emple Knitting Mills [he] could have it." McKay testified
that he had another conversation with Nass in May during which he told of plans to
put his house up for sale. Nass, on the other hand, testified that the only conversa-
tion he had with McKay prior to the termination date was in May . This conversa-
tion is described infra. I am convinced that both conversations took place substan-
tially as described by McKay and Nass.
In anticipation of McKay's expected departure in June, Respondent transferred
McKay to the job of knitting , without loss of pay, and started training McKay's
brother, John , to do the mechanic work which McKay had been doing , giving John
a 5-cent increase in pay at that time. Around this time and thereafter , McKay and'
Leighton frequently discussed the expected move to Texas.
About May 15, according to Nass' credited testimony , he had a talk with McKay
for the purpose of trying to fix a definite date for McKay 's departure in order to
better plan- the work and layoff schedules . He told McKay that he appreciated'
McKay's long service with Respondent and was not "going to force him out" but
wanted McKay to fix a definite date for his departure so that Nass could proceed
with his plans. McKay replied that he would like to discuss the matter with his
wife . A few days later he reported back to Nass that he expected to leave in June,
definitely before July ' l. On- the basis of this statement Nass began making his
layoff plans. '
. On May 17 or 24, McKay's wife, who was employed in the packaging department,
quit her job in anger following an 'attempt to get an error in her paycheck corrected.,
After Mrs . McKay's resignation , Foreman Leighton asked McKay whether he was'
still planning to move to Texas . McKay replied that he was not sure . A few days
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
later Leighton again inquired about McKay's intentions and McKay then said that he
was not going, explaining that since his wife had quit her job, he could not afford
to go. Leighton replied that he thought McKay would be better off staying anyway.
Soon thereafter in late May or early June, Leighton reported to Nass that McKay
had changed his mind about leaving. Nass replied, "He can't do this," "He has to
go," or something to that effect. Leighton reported this remark back to McKay
but neither of them appeared to take it seriously. Leighton thereafter made plans
to transfer McKay back to his mechanic work when that type of work was available,
although at the moment Leighton was himself able to handle all of it.
On July 12, Nass summoned McKay to his office, informed him of the necessity
of reducing the staff, and told him that despite his seniority, Nass did not feel he
could count on McKay to stay in view of his repeated assertions that he was going
to leave. Nass stated that in fairness to the other men, he felt that McKay rather
than one of the others should be the one to go. McKay replied, "That is the way
it goes." Nass gave McKay not only the wages currently due him, but a check for
2 weeks' pay in addition. Nass testified that he meant only to lay McKay off, not
to discharge him, and that Respondent did not give severance pay to those it dis-
charged or normally to persons being laid off. He gave McKay an extra 2 weeks'
pay, he says, in appreciation of McKay's long and satisfactory service with Respond-
ent. McKay, on the other hand, could understandably have considered the extra
money as severance pay and the termination as permanent. This does not seem to
me to be an important issue for, to a man like McKay with a family to support, a
seasonal layoff such as those at Respondent's plant, perhaps lasting as long as 6
months, was tantamount to a discharge. The employee is compelled from economic
necessity to seek other employment.
Nevertheless, I am not convinced that Nass was discriminatorily motivated in
laying off McKay. It was well known by management that McKay was dissatisfied
with his job because there was no further room for advancement, and that he desired
to move to Texas because he thought he could make more money there. Since
McKay's plans to move were altered only because of lack of funds with which to
make the trip, Nass could reasonably assume that McKay would leave his job with
Respondent whenever a better paying job somewhere else could be obtained. Nass'
refusal to alter his personnel plans made after McKay had assured him that he would
definitely be leaving by July 1, and his remark to Leighton upon being informed of
McKay's change of mind, "He can't do this," cannot be considered so unreasonable
under the circumstances as to warrant an inference that discriminatory motives were
involved, even if I were to accept the testimony of Mrs. McKay, denied by Rolsky
and treated supra, that in March Rolsky had told her that he hoped she and George
would not get mixed up in any union activities. Nor do I consider Nass' apparent
assurance to McKay in January that he could always have his job with Respondent
anytime he wanted it as a binding commitment never to lay McKay off. It seems
reasonable to assume'that Nass at that time was thinking in terms of McKay possibly
becoming dissatisfied with Texas after a tryout and wishing to return to work for
Respondent after satisfying himself that he preferred to work for Respondent.
. I find that the General Counsel has not established by a preponderance of the evi-
dence that Respondent discharged or laid off George McKay because of his union
membership or activities.
CONCLUSIONS OF LAW
1. Respondent, by coercively interrogating employees about the union activities
of fellow employees, seeking to make an informer out of one of them, and promising
a benefit to another employee conditioned upon his abandonment of union activities,
interfered with, restrained, and coerced its employees in the exercise of their rights
guaranteed under Section 7 of the Act, .in violation of Section 8 (a) (1) of the Act.
2. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
3. A preponderance of the evidence does not support allegations of the com-
plaint that Respondent violated Section 8 (a) (3) of the Act.
TAE REMEDY
It having been found that Respondent has engaged in unfair labor practices in
violation of Section 8(a) (1) of the Act, my Recommended Order will require
Respondent to cease and desist therefrom and take the conventional type of affirma-
tive action designed to effectuate the policies of the Act.
EMPLE KNITTING MILLS 115
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I hereby issue the following:
RECOMMENDED ORDER
- Emple.-Knitting Mills, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about union activities or -sympathies in a manner
constituting interference, restraint, and coercion in violation of Section 8 (a)( I) of
the Act.
(b) Requesting any employee to act as an informer regarding the union activi-
ties or sympathies of fellow employees.
(c) Promising any employment benefits conditioned upon any employee's aban-
donment of his union activities.
(d) In any like or related manner interfering with, restraining, or coercing em-
ployees in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist International Ladies' Garment Workers' Union, AFL-CIO,
or any other labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from engaging
in such activities.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Post in its plant at Brewer, Maine, copies of the notice attached hereto
marked "Appendix." 5 Copies of said notice, to be furnished by the Regional
Director for the First Region, shall, after being signed by Respondent's representa-
tive, be posted by Respondent immediately upon receipt thereof and maintained
by it for 60 consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for the First Region, in writing, within 20 days
from the date of the receipt of this Decision, what steps Respondent has taken to
comply herewith.6
It is further recommended that the complaint be dismissed insofar as it alleges
violations of Section 8(a) (3) of the Act.
If this Recommended Order is 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. If the Board's Order be enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "A Decree of
the United States Court of Appeals, Enforcing an Order" for the words "A Decision and
Order."
61f this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the First Region, in writing, within 10 days
from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT interrogate coercively our employees concerning union activi-
ties or sympathies.
WE WILL NOT ask any employee to act as an informer regarding the union
activities or sympathies of fellow employees.
WE WILL NOT promise any employee benefits conditioned upon his aban•
donment of union activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form, join,
or assist International Ladies' Garment Workers' Union, AFL-CIO, or any
other labor organization, to bargain collectively through representatives of
their own choosing, or to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain members of the above-named
or any other labor organization.
EMPLE KNITTING MILLS,
Employer.
Dated------------------- 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, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele-
phone No. 523-8100, if they have any question concerning this notice or compliance
with its provisions.
International Organization of Masters , Mates and Pilots of
America, Inc., AFL-CIO; Great Lakes District , Local No. 47,
International Organization of Masters , Mates and Pilots of
America, Inc., AFL-CIO and Chicago Calumet Stevedoring
Co., Inc., Charging Party
International Organization of Masters , Mates and Pilots of
America, Inc., AFL-CIO; Great Lakes District , Local No. 47,
International Organization of Masters , Mates and Pilots of
America, Inc., AFL-CIO and P & V Maritime Corporation,
Charging Party
International Organization of Masters , Mates and Pilots of
America, Inc., AFL-CIO; Great Lakes District, Local No. 47,
International Organization of Masters , Mates and Pilots of
America, Inc., AFL-CIO and North Pier Terminal Company,
Charging Party
International Organization of Masters , Mates and Pilots of
America, Inc., AFL-CIO, and International Vice-President
Captain Rolla R. Johnson and Cleveland Stevedore Company,
Lederer Terminal Warehouse Company, National Terminals
Corporation and Shipping Federation of Canada , Charging
Parties. Cases Nos. 13-CC-168, 13-0C-169, 13-CC-170, and
13-CC-180 (formerly 8-CC-76). February 26, 1964
SECOND SUPPLEMENTAL DECISION
On October 23, 1963, the Board issued its Supplemental Decision
in this proceeding,' in which it dealt with the two questions posed by
the Circuit Court of Appeals for the District of Columbia on an order
of remand of December 20, 1960. Those questions concerned (1)
whether the International Organization of Masters, Mates and Pilots
of America, Inc., AFL-CIO, herein called MMP, possessed a member-
ship which included, in substantial number or proportion, persons who
are employees within the meaning of Section 2(5) of the Act, and
1144 NLRB 1172 . The original decision is reported in 125 NLRB 113.
146 NLRB No. 19.