Ideal Glove Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 2, 1965

151 N.L.R.B. 368 (N.L.R.B. 1965)

368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ideal Glove Manufacturing Company and Amalgamated
Clothing Workers of America , AFL-CIO. Case No. 8-CA-3584.
March 2, 1965
DECISION AND ORDER
On December 21, 1964 , Trial Examiner C. W. Whittemore issued
his 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 there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision . He further found that the Respondent
had not engaged in certain other alleged unfair labor practices
and granted the Respondent 's motion to dismiss the complaint
with respect to such allegations . Thereafter , the Respondent filed
exceptions to the Trial Examiner's Decision and a supporting
brief, and the General Counsel filed a brief in support of that
Decision.
Pursuant to the provisions of Section 3(b) of the National
Labor Relations Act, as amended , the National Labor Relations
Board has delegated its powers in connection with this case to
a three-member panel [Chairman McCulloch and Members Brown
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 Examiner 's Decision , the exceptions and briefs,
and the entire record in this case , and hereby adopts the findings,
conclusions , and recommendations of the Trial Examiner, with
the modifications noted below
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts
as its Order, the Order recommended by the Trial Examiner
and orders that Respondent, Ideal Glove Manufacturing Company,
its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order.
' Although the record does not establish that the Respondent expressed hostility
toward the employees' union organizational activity as such it is nevertheless manifest
from the record , and particularly from Tavener ' s statements to Lewandowski and John-
son, that the Respondent was in fact hostile toward the employees ' efforts, which included
their union activity , to implement their earlier concerted protest concerning Respond-
ent's vacation policy. It is further manifest that the discrimination against Lewandowski
and Johnson was motivated by such hostility. Under these circumstances we find that
such discrimination was in violation of Section 8(a) (1) as well as Section 8(a) (3) of
the Act ; in either event the remedy recommended by the Trial Examiner is appropriate.
In adopting the Trial Examiner ' s conclusion that Helen Reiter is a supervisor, we do
not rely on her conduct on the witness stand.
151 NLRB No. 41.
IDEAL GLOVE MANUFACTURING COMPANY 369
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon an original and an amended charge filed by the above-named labor organi-
zation on July 24 and September 4, 1964, respectively, the General Counsel of the
National Labor Relations Board on September 11, 1964, issued his complaint and
notice of hearing. The Respondent filed its answer dated September 18, 1964. The
complaint alleges and the answer denies that the Respondent has engaged in and is
engaging in unfair labor practices in violation of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended. Pursuant to notice a hearing was held
in Toledo, Ohio, on November 9, 1964, before Trial Examiner C. W. Whittemore.
At the hearing all parties were represented by counsel and were afforded full
opportunity to present evidence pertinent to the issues, to argue orally, and to file
briefs. Briefs have been ieceived from General Counsel and the Respondent.
Disposition of the Respondent's motion to dismiss the complaint, upon which
ruling was reserved at the hearing, is made by the following findings, conclusions,
and recommendations.
Upon the record thus made, and from my observations of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Ideal Glove Manufacturing Company is an Ohio corporation, with principal office
and place of business in Toledo, Ohio, where it is engaged in the manufacture and
sale of gloves. It annually ships finished products, valued at more than $50,000,
directly to points outside the State of Ohio.
The complaint alleges, the answer admits, and it is found that the Respondent is
engaged in commerce within the meaning of the Act
II. THE CHARGING UNION
Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization
admitting to membership employees of the Respondent.
HI. THE UNFAIR LABOR PRACTICES
A. Setting and chief issues
The plant involved here is relatively small, employing only 25 or 30 workers,
mostly female. Although in operation nearly 20 years, there is no evidence that
organizational efforts at this plant began until mid-July 1964. Dissatisfaction with
the Company's vacation policy seems to have sparked the movement then begun.
Phyllis Lewandowski led the campaign to get union cards signed and within a day
or two was summarily discharged. Her dismissal is alleged by the complaint to
have been unlawful. About the same time Louise Johnson, who worked adjacent
to Lewandowski, attended the organizing meeting, and openly protested against the
vacation policy, was placed on probation. This management action is also alleged
by the complaint to have been discriminatory and unlawful.
Except for 1-day biweekly visits of corporation officers from Detroit, the Toledo
plant is run by Martha Reiter , plant manager , and her assistant , a twin sister , Helen.
Helen Reiter opens the plant at 7 o'clock each morning, and is in charge until arrival
of her sister at 9 o'clock. When Martha is at work Helen's chief responsibility is to
keep the various machines in operating condition, although during the day she may
grant permission to employees to leave the plant. She receives reports from employ-
ees who are not to come in. She assigns work and trains new employees. Except
for Martha, Helen is the highest paid employee at the plant. Despite the Respond-
ent's contention to the contrary, it is found that Helen Reiter is a supervisor within
the meaning of the Act, and is reasonably and generally considered by employees
to be a management representative.'
i Although Helen Reiter denied that she has the "right" to hire or fire, employee
Operacy testified without contradiction that in the early summer of 1963 she heard
Helen "fire" an employee who "mumbled something" after being ordered by Helen to
"speed up" her work. And the record reveals a somewhat unusual and on-the-spot dis-
play of her supervisory authority. While she was on the stand as a witness for the
Respondent , its counsel asked me if witnesses who had already testified could be "excused
to go back to the plant." Reiter Interrupted with the order: "Tell them to wait for me.
I've got to lock the place up."
783-133-66-vol. 151-25
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The discharge of Phyllis Lewandowski
1. Relevant facts
When Lewandowski was summarily discharged on July 17, 1964, she had been
employed by the Respondent for 3 years and, according to the plant manages, had
been the highest paid production worker.
As noted in an earlier section, many of the female employees were dissatisfied
with what they understood the company policy to be regarding the number of days
of vacation pay given for each year's service. Shortly before the 1964 vacation
began on July 4, most of them, in a group, went to the office and expressed their
feelings about it to Kaul, the plant owner, and Tavener, a vice president, the two
corporate officers who regularly came to the plant every other Tuesday.
During the week of vacation Lewandowski visited the office of the union local
and arranged for a meeting to be held after work resumed When employees
returned to work the week beginning July 13, she urged her fellow employees to
attend a meeting on July 15. About 10 of them attended. Lewandowski obtained
union cards and the next day solicited signatures upon them at the plant, in the
parking lot, and during the noon break.
On that day, Thursday, July 16, Helen Reiter came to employee Wasielewski at
her machine and told her that "Union literature would be passed out, but she did
not have to sign." 2
Although Kaul and Tavener had been at the plant on the previous Tuesday,
July 14, in accordance with their custom, both came back on Friday, July 17.
Lewandowski was sent to the office, where Tavener promptly discharged her, telling
her it was because she was not "happy there," was not satisfied with her vacation
pay, and did not "mind" her "supervision." 3
As will be described fully below, after Lewandowski was fired, employee Johnson
was called in and placed on probation by Tavener.
2. Conclusions
Tavener and Martha Reiter were the two management witnesses to testify con-
cerning the dismissal of Lewandowski. In important respects their accounts are
inconsistent and contradictory. I cannot credit either of them. According to
Tavener, Martha had been repeatedly complaining about the employee since the
previous February, and during his visit to the plant on Tuesday of that week, he said,
she delivered an ultimatum to the effect that because of a "very nasty remark about
one of the officers of the company" she had "overheard," she would quit or "Phyllis
will have to leave." Tavener said he then told Martha to fire her, but she refused,
explaining that she did not want to "have another scene." It was then decided,
according to Tavener, that the employee would be permitted to finish out the week,
and he and Kaul would come back and fire her on Friday.
Reiter flatly denied that Tavener told her on Tuesday to fire Lewandowski.
According to her testimony it had been prearranged that day that Tavener would
return to the plant on Friday, to "check on this electrical work" and he said that he
would then "make all the final decisions."
Reiter's testimony about the "electrical work" is confused and unsupported either
by Tavener or by company records. In addition to the above-quoted remark she
referred to it disjointedly as "electrical contract. We were having heaters moved
downstairs." Asked when "they" 'planned to come to Toledo, she answered, "As
soon as I got a notice by mail." Asked when "that was," she replied, "I don't know.
The contracts are in the file." She then added, "I don't know if I had the contracts
there. We had two estimates sent out." Later she said, "They told me Tuesday
that they would be in Friday and get the electric contract checked out."
According to Tavener, he fired Lewandowski solely because of the many and
repetitive complaints made to him since February by Reiter-complaints which he
never took the trouble to investigate, as he admitted. According to Reiter, Lewan-
dowski would still be working there had she not happened to overhear, coming from
2 Reiter admitted the incident, but placed it as having occurred the following week,
after the discharge. I cannot accept Reiter's timing, for reasons similar to those noted
below concerning both her sister and Tavener, who also readily admitted being informed
of the union activity after the discharge.
3 The quotations are from the employee's credible testimony.
IDEAL GLOVE MANUFACTURING COMPANY 371
the other side of a 6-foot partition, a "nasty" remark she believed the employee
made, sometime before the vacation period began.4 She admitted, however, that
she never has revealed to Tavener just what the supposed remark was.
In short, I find no merit in the reasons for the discharge advanced by the Respond-
ent's witnesses.
I am convinced, and find, that Martha Reiter 5 learned of Lewandowski's leader-
ship in the Union on Thursday, July 16, and that the employee was discharged
because of such activities the following day, whether Tavener came to the plant
upon a call from her, to check some ephemeral electrical contract, or by chance
Such discharge was plainly unlawful, and constituted interference, restraint, and
coercion of employees in the exercise of rights guaranteed by Section 7 of the Act.
C. The probation of Louise Johnson
1. Relevant facts
Louise Johnson, an employee with 2 years' service, worked adjacent to Lewandow-
ski. It is undisputed that immediately after the group protest in the office, previously
described, Tavener came to her and she reiterated her dissatisfaction with the vaca-
tion policy. After the vacation she attended the Wednesday night union meeting
with Lewandowski and others.
On Friday, after Tavener had fired Lewandowski, he called Johnson into the office.
It is uncontradicted that he asked her if she was "happy" in her work. She said she
was. Tavener then declared he did not want to keep "anybody there that was
unhappy with their work or dissatisfied" and then asked her if it was "because of
her vacation check." She admitted that this "happened to be one of the things,"
and suggested that if her work was unsatisfactory he could "pay" her off. He denied
being dissatisfied with her work and told her she could go back to her job "on a
probationary measure." Johnson then suggested that since the other employees had
no clear understanding of what the company policy was regarding vacations, he
should inform them Tavener thereupon called the other girls together, explained
the company policy, and then said that "they didn't want to keep anybody who was
unhappy with their work there "
Shortly after the Respondent received the charge in this case, Johnson was called
to the office and told she was off probation.
2. Conclusions
Tavener's testimony concerning his action regarding Johnson is no more convinc-
ing than that involving Lewandowski. He said merely that it was taken because the
"reports I was getting about Louise were something like Phyllis'. There was extended
lunch periods and supposedly insubordination, drinking liquor at noon, and talking
in the factory about the work not being what it should and the factory not being
run like it should be run." He made no claim, however, that he at any time gave
her such reasons for her probation, and Martha Reiter's testimony is significantly
barren of any corroboration of any part of his testimony about reports from her.
I cannot credit Tavener's vague and unsupported testimony regarding this employee.
I am persuaded by the preponderance of credible evidence that Johnson was asso-
ciated with Lewandowski in Tavener's opinion, not only because of her close work
position but also because of her openly expressed dissatisfaction with the company
vacation policy. The circumstances warrant the inference, and it is drawn, that he
4 That Reiter and Lewandowski may have had arguments in the past is not unbelievable
Reiter, as a witness, by constant wringing of her hands exhibited a strenuous physical
effort to maintain self-control. She admitted that on the Tuesday in question "I had a
violent argument with Sir. Tavener " Later in her testimony she declared, "I really
had an argument that day with Air Kant " On cross-examination she admitted having
had a nervous breakdown some years ago
5 The efforts of the several management representatives to make it appear that they
learned of Lewandowski's leadership immediately after she was dischaiged, from em-
ployees who hurried up to tell them, is an example of half-truth telling not unfamiliar
to a trier of facts in these cases It is unnecessary, I believe, to determine precisely
from whom Reiter first learned of the employee's leadership or the union activity in
general From her own account, she possessed remarkably long-distance ears, claiming
to have identified Lewandowski, whom she could not see, as making a remark which she
would only characterize, but would not repeat.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
put her upon probation, immediately after firing Lewandowski for her union leader-
ship, as a potent warning that her job was in jeopardy if she likewise became active
in the organization.
I conclude and find that putting Johnson on probation, as above described, was
for the purpose of discouraging union membership and activity, and thereby inter-
fered with, restrained, and coerced employees in the exercise of rights guaranteed
by the Act.6
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section 1, 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 obstrucing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action to
effectuate the policies of the Act.
Since it is reasonably inferred that the tenure of employment of employee Louise
Johnson has been placed in jeopardy by the imposition of the discriminatory proba-
tion period, it will be recommended that the Respondent expunge from her personnel
record any notation concerning said probation, notify her at once of such action in
a letter signed by the plant manager or other responsible official, and notify all
employees of such action in a notice described below. It will also be recommended
that the Respondent offer Phyllis Lewandowski immediate and full reinstatement to
her former or substantially equivalent position, without prejudice to her seniority
or other rights and privileges, and make her whole for any loss of earnings she may
have suffered by reason of the discrimination by payment to her of a sum of money
equal to that which she would have earned as wages from the date of the discrimina-
tion to the date of the offer of full reinstatement, less her net earnings during said
period, and in a manner prescribed by the Board in F. W. Woolworth Company,
90 NLRB 289, and with interest on the backpay due in accordance with Board
policy set out in Isis Plumbing & Heating Co., 138 NLRB 716.
In view of the serious and extended nature of the Respondent's unfair labor prac-
tices, it will be recommended that it cease and desist from infringing in any manner
upon the rights of employees guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Amalgamated Clothing Workers of America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. By discriminating against employees Lewandowski and Johnson, as described
herein, to discourage membership in and activity on behalf of 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 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.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, and pursuant to Section 10(c) of the Act, I recommend
that the Respondent, Ideal Glove Manufacturing Company, its officers, agents, suc-
cessors, and assigns, shall:
9I find no evidence in the record to support the complaint's allegations concerning*
(1) unlawful interrogation, or (2) an unlawful no-solicitation rule. Nor in his brief
does General Counsel urge any findings on such allegations. The Respondent's motion
to dismiss as to these allegations is hereby granted.
IDEAL GLOVE MANUFACTURING COMPANY 373
1. Cease and desist from:
(a) Discouraging membership in and activity on behalf of Amalgamated Cloth-
ing Workers of America , AFL-CIO, or in any other labor organization , by dis-
charging , refusing to reinstate , placing on probation , or in any other manner dis-
criminating against employees in regard to hire or tenure of employment or any
term or condition of employment.
(b) In any other manner interfering with , restraining , or coercing employees in
the exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action, to effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to Phyllis Lewandowski , and make
her whole for any loss of pay suffered by reason of the discrimination against her,
in the manner set forth above in the section entitled "The Remedy."
(b) Expunge from Louise Johnson's personnel record any notation concerning the
discriminatory probation period, described herein, and notify her and all employees
of such action in the manner described herein the section entitled "The Remedy."
(c) Post at its plant in Toledo , Ohio, copies of the attached notice marked
"Appendix." 7 Copies of said notice , to be furnished by the Regional Director for
Region 8, shall , after being duly signed by the Respondent 's representative , be posted
by it immediately upon receipt thereof, and be maintained by it for a period of 60
consecutive days thereafter , in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered , defaced, or covered by any other
material.
(d) Notify the said Regional Director, in writing , within 20 days from the date
of the receipt of this Trial Examiner 's Decision , what steps have been taken to com-
ply herewith.s
r
' 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 . In the further event that the Board ' s Order is enforced by a decree of
a United States Court of Appeals , the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
'In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to conduct our labor relations in compliance with
the National Labor Relations Act, as amended , we notify you that:
WE WILL NOT unlawfully discourage you from being members of Amalga-
mated Clothing Workers of America, AFL-CIO, or any other union.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act, to join a union of your own choice or not to engage in any union
activities.
WE WILL offer reinstatement to Phyllis Lewandowski , and give her backpay.
WE WILL remove from her personnel record any reference to the unwar-
ranted probation period of Louise Johnson, which began on July 17, 1964.
IDEAL GLOVE MANUFACTURING COMPANY,
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, 720 Bulk-
ley Building , 1501 Euclid Avenue, Cleveland , Ohio, Telephone No. Main 1-4465,
if they have any questions concerning this notice or compliance with its provisions.