Lingerie, Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1952

101 N.L.R.B. 1374 (N.L.R.B. 1952)

1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the elections directed herein is instructed to issue a certificate of repre-
sentatives to the winning union for each such voting group described
above, which the Board, under such circumstances, finds to be a unit
appropriate for purposes of collective bargaining. In the event that
-a majority of any one or more of voting groups (6), (7), (8), or (9),
vote for the same union as the one for which a majority vote in voting
-group (5), the Board finds the inclusion of such employees in the
-larger unit to be appropriate, and the Regional Director will issue a
certificate of representatives to the winning union in the larger unit.
Order
IT IS HEREBY ORDERED that the petitions filed in cases numbered 19-
RC-1126 and 1130 be, and they hereby are, dismissed.
[Text of Direction of Elections omitted from publication in this
volume.]
LINGERIE , INC. and UNITED TEXTILE WORKERS OF AMERICA, AFL.
Cases Nos. 11-CA-321 and 11-RC-311 (formerly 34-CA-321 and
34-RC-311). December 09, 1952
Decision and Order
On April 29, 1952, Trial Examiner C. 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions and a statement of objections to the Intermediate Report,
and the General Counsel filed a memorandum and brief in support of
the Intermediate Report. The Respondent's request for oral argu-
ment is hereby denied as the record, exceptions, statements, and briefs
before us adequately present the issues and positions of the parties.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the Re-
spondent's exceptions and statement of objections, the General Coun-
sel's memorandum and brief, and the entire record in this case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, with the following additions and modifications:
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to it three -member panel
[Chairman Herzog and Members Murdock and Peterson].
101 NLRB No. 221.
LINGERIE, INC. 1375
1. The Trial Examiner made factual findings concerning the Re-
spondent's operations, to which the Respondent did not except, but he
inadvertently neglected to make the conclusionary finding that the
Respondent is engaged in commerce within the meaning of the Act.
Upon the basis of the Trial Examiner's factual findings, we find that
the Respondent is engaged in commerce within the meaning of Section
2 (6) and (7) of the Act.
2. We agree with the Trial Examiner that the Respondent refused
to bargain with the Union on and after April 21, 1951, in violation of
Section 8 (a) (5) of the Act.
It is clear from the authorization cards in the record that the Union
represented a majority of the employees in the appropriate unit on
April 21, 1951, and that the Respondent summarily rejected the
Union's bargaining request on that day. The Union thereupon filed
a representation petition with the Board on April 23 (Case No. 11-
RC-311), pursuant to which an election was held on September 11.2
We find no merit in the Respondent's contention that it had a good-
faith doubt as to the Union's majority on April 21 and that the election
results confirmed its doubt. The record shows that the Respondent
never expressed this doubt to the Union on April 21 when it unquali-
fiedly refused to bargain. Moreover, it appears that both before and
after the filing of the petition, as is fully described in the Intermediate
Report, the Respondent engaged in an active campaign designed to
undermine the Union and destroy its representative status in the plant.
Under these circumstances, we are of the opinion that there was no
genuine question of representation among the Respondent's employees
and we regard the election proceeding as a nullity.8 Accordingly,
we shall set aside the results of the election in Case No. 11-RC-311,
and order that the petition filed therein be dismissed.
3. On April 24, 1951, the Respondent laid off 11 employees. Al-
though the layoff itself was not alleged in the complaint as a specific
unfair labor practice, extensive testimony was adduced at the hearing
concerning the reasons therefor. The Trial Examiner found, for
reasons stated in his Intermediate Report, that the layoff was discrimi-
natorily motivated. We do not agree. The Respondent offered un-
impeached testimony at the hearing that the layoff was primarily
caused by a sharp drop in production requirements for Sears, Roebuck
& Co., its largest customer. Although 7 of the 11 employees involved
in the layoff were members of the Union, this ratio was not so un-
reasonably high in view of the clear majority possessed by the Union
at that time as to compel the conclusion that the layoff was made to get
' The Union lost the election by a vote of 67 to 64 . Eight of the employees found herein
to have been discriminated against cast challenged ballots in the election.
3 Rehr4g-Pac4Jâ–ºc Company, 99 NLRB 163 , and eases there cited.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rid of union adherents. Furthermore, 4 of the 6 employees recalled
were members of the Union. Under these circumstances, we do not
believe there is a preponderance of evidence to support a finding that
the April 24 layoff was discriminatory.
The Trial Examiner further found that Nell Stroupe and Evelyn
Webb, two employees included in the April 24 layoff and specifically
named in the complaint, were discriminatorily discharged on April
24. Although we adopt the Trial Examiner's subsidiary findings of
fact with respect to Stroupe and Webb, we believe that these em-
ployees were discriminated against by not being reinstated after April
24 rather than by having been discharged on that date.
The temporary nature of the April 24 layoff is attested to by the
fact that 3 of the 11 employees involved were recalled to work in the
next 6 weeks, and 3 more in the following couple of months 4 Despite
the fact that Stroupe and Webb both sought reemployment during
this period, the record shows that the Respondent hired 3 new em-
ployees in July and August at jobs Stroupe and Webb were qualified
to do 5 As the Trial Examiner found, the Respondent offered no
credible explanation for not recalling Stroupe and Webb. Indeed, in
view of the Respondent's customary practice to give preferential em-
ployment status to laid-off employees, it seems clear that, absent dis-
crimination, Stroupe and Webb would normally have been recalled at
least before any new employees were hired. Under all the circum-
stances, including the Trial Examiner's subsidiary findings with re-
spect to Stroupe and Webb and the Respondent's determination to
undermine the Union and destroy its majority in the plant, we find
that the Respondent discriminatorily refused employment to Stroupe
and Webb after the April 24 layoff, in violation of Section 8 (a) (3)
of the Act.
4. We agree with the Trial Examiner that Nina Wilson, Betty
Chester, and Azalea Mull were discriminatorily discharged on May
28, 30, and 31, 1951, respectively. In addition to the reasons relied
upon by the Trial Examiner, we note particularly the following:
Each of these employees was hired in August 1950 and, until the
Union began to organize the plant, the Respondent had not disciplined
or warned them about the quality of their work. Not long after the
Union became active, however, the Respondent repeatedly found fault
with their work, and finally discharged each of them allegedly for
cause within a 3-day period. We have the same difficulty as the Trial
Examiner in crediting this defense. It is strange, indeed, that the
Respondent would have found three employees to have been satisfac-
4 Three others in the group have not returned to work but there is no evidence in the
record that they desired reemployment.
One of these employees was hired on July 10, another on August 7, and the third on
August 14.
LINGERIE, INC. 1377
tory workers for 9 or 10 months, and that the work of all three would
suddenly prove to be unsatisfactory at the same time . In Wilson's
case, this conclusion is fortified by her earning record. During the
7-week period immediately preceding her discharge, Wilson con-
sistently earned as much or more than the other employees doing the
same type of work. The Respondent contends that Wilson had an
abnormally high percentage of defective pieces returned for further
processing. As employees are not paid for work done on defective
merchandise, it is incredible that Wilson could have maintained her
high earning record and still turn out the amount of bad work alleged
by the Respondent s
5. The Trial Examiner found that Joyce Isaacs was discrimina-
torily discharged, and we agree. The Respondent contends that
Isaacs quit her job on July 24, 1951. The record shows that Isaacs
requested maternity leave earlier in July and repeated the request to
her supervisor on July 24. On neither occasion was the leave granted
and no credible reason for the denial appears in the record.' When
the Respondent denied Isaacs' request for maternity leave on July 24,
she absented herself from work. Upon returning to the plant the
following week for her pay check, Isaacs received a layoff slip stating
"no work available." Isaacs' child was born in October 1951, and
when she sought to return to her job on February 18, 1952, the Re-
spondent refused her employment.
In agreeing with the Trial Examiner that Isaacs was discriminated
against, we, unlike the Trial Examiner, do not rely on the fact that the
Respondent later paid for her hospital bills." We deem it significant,
however, that the Respondent refused her request for maternity leave
not only contrary to its established practice, but on the same day that
the Respondent gave lack of work as its reason for laying off Huffman
and McCurry, two employees doing the same type of work as Isaacs.
In view of the Respondent's knowledge that Isaacs was one of the lead-
ers in the Union and its determination to thwart employee self-organi-
zation, we are satisfied that the Respondent discriminatorily denied
Isaacs maternity leave in the expectation that she would remain away
from work and render herself ineligible to vote in the impending elec-
tion. We find, therefore, that the Respondent constructively dis-
e In his discussion of Wilson 's discharge , the Trial Examiner stated "In view of the
established discriminatory and antiunion conduct of the Respondent it reasonably follows
that similar discrimination was visited upon Wilson, unless a preponderance of credible
evidence supports some other claim of motive by the Respondent " We construe this to
mean that once the General Counsel has made out a prima facie case , the burden of going
forward with evidence to establish a valid motivation for the discharge shifts to the
Respondent.
' It is the established policy of the Respondent to grant maternity leave to employees,
and Isaacs herself had been given such leave 2 years before.
8It appears that these bills were paid under an employer medical insurance plan under
which liability was fixed prior to July 24.
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged Isaacs on July 24, 1951, in violation of Section 8 (a) (3) of
the Act .9
6. We do not agree with the Trial Examiner that the Respondent
discharged Jane Busic in violation of the Act. Busic worked at a
side seaming operation on the Sears line for approximately 3 years
and was transferred to bar tacking shortly before her discharge on
October 12, 1951. The Respondent contends that the quality of
Busie's work had steadily deteriorated on side seaming and that she
was put on bar tacking, an easier job, in an effort to give her an oppor-
tunity to improve her work. When Busic failed to meet production
standards on bar tacking, the Respondent discharged her. The Trial
Examiner agrees that Busic did not satisfactorily perform the bar
tacking job. He observes, however, that Busic had been a satisfac-
tory employee for nearly 3 years on her old job, and he relies strongly
on the fact that the Respondent offered no credible explanation for
not returning Busic to her old job. The record does not support the
Trial Examiner's findings in this regard. Busic herself testified that
for a number of months before her transfer to bar tacking, she had
trouble making production on the side seaming operation, that during
this period she had been warned about the quality of her work on a
number of occasions by at least two supervisors, and that when sh'
was finally transferred to bar tacking, Avery told her that if her
work did not show signs of improvement, "he would have to do some-
thing about it." The Trial Examiner found that the real reason for
Busie's discharge was her open advocation of the Union at the election
on September 11, but it is clear that she was having serious job difficul-
ties long before that time. We are, therefore, unable to conclude
that the Respondent discharged Busic because of her activity in behalf
of the Union and we shall dismiss the complaint as to her.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Lingerie, Inc., Morganton,
North Carolina, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively concerning wages, hours, and
other conditions of employment with United Textile Workers of
America, AFL, as the exclusive representative of all production and
maintenance employees at its Morganton plant, including examiners,
the stockkeeper, stock clerk, machinists, inspectors, and designer, but
excluding the time-study man, payroll, production, and order clerks,
Isaacs' right to back pay would, of course, not accrue until February 18, 1952.
LINGERIE, INC. 1379
office clerical employees, guards, section girls, and all supervisors as
defined in the Act.
(b) Interrogating its employees concerning their activities in be-
half of United Textile Workers of America, AFL, or any other labor
organization, threatening them with reprisals because of such activi-
ties, and promising them economic benefits to discourage such
activities.
(c) Engaging in surveillance of meetings of United Textile Work-
ers of America, AFL, or meetings of any other labor organization.
(d) Discouraging membership in United Textile Workers of Amer-
ica, AFL, or any other labor organization, by discriminatorily dis-
charging, transferring, laying off, or refusing to reinstate any of
its employees, or by discriminating in any other manner in regard to
their hire, tenure of employment, or any term or condition of
employment.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist United Textile Workers
of America, AFL, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Textile Work-
ers of America, AFL, as the exclusive representative of all the above-
described employees, and embody any understanding reached in a
signed agreement.
(b) Offer to Nell Stroupe, Evelyn Webb, Thelma Williams, Jean
Patton, Ella Hudson, Nina Wilson, Betty Chester, Azalea Mull, Louise
Abernathy, Elizabeth (Whisnant) Huffman, Morene McCurry, Joyce
Isaacs, and Nan Price immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make them whole,
in the manner set forth in the section of the Intermediate Report
entitled "The Remedy," for any loss of pay they may have suffered
by reason of the Respondent's discrimination against them.
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records, and all other records necessary
to analyze the amounts of back pay due under the terms of this Order.
942305-53----Fe
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its plant in Morganton, North Carolina, copies of the
notice attached hereto and marked "Appendix A.710 Copies of such
notice , to be furnished by the Regional Director for the Eleventh
Region, shall, after being duly signed by the Respondent's representa-
tive, be posted by the Respondent immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that such notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for the Eleventh Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the election of September 11, 1951, in
Case No. 11-RC-331, be, and it hereby is, set aside , and that the
petition filed in such case be, and it hereby is, dismissed.
IT Is FURTHER ORDERED that the complaint, insofar as it alleges the
discriminatory discharge of Jane Busic, be, and it hereby is, dismissed.
"In the event 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."
Appendix A
NOTICE TO ALL EMPLOYERS
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, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their ac-
tivities in behalf of UNITED TEXTILE WORKERS OF AMERICA, AFL,
or any other labor organization, threaten them with reprisals
because of such activities, or promise them economic benefits to
discourage such activities.
WE, WILL NOT engage in surveillance of meetings Of UNITED
TEXTILE WORKERS OF AMERICA, AFL, or meetings of any other
labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist UNITED TEX-
TILE WORKERS OF AMERICA, AFL, or any other labor organization,
to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all such activities except to the extent that such
LINGERIE, INC. 1381
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
WE WILL bargain collectively concerning wages, hours, and
other conditions of employment with UNITED TEXTILE WORKERS
OF AMERICA, AFL, as the exclusive representative of all produc-
tion and maintenance employees, including examiners, the stock-
keeper, stock clerk, machinists, inspectors, and designer, but ex-
cluding the time-study man, payroll, production, and order clerks,
office clerical employees, guards, section girls, and all supervisors
as defined in the Act.
WE WILL offer to the following named employees immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay suffered as
a result of the discrimination against them :
Nell Stroupe Azalea Mull
Evelyn Webb Louise Abernathy
Thelma Williams Elizabeth (Whisnant) Huffman
Jean Patton Morene McCurry
Ella Hudson Joyce Isaacs
Nina Wilson Nan Price
Betty Chester
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not dis-
criminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any labor organization.
LINGERIE, INC.,
Employer.
By--------------------------------
(Representative ) (Title)
Date --------------------
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 duly filed and served, a complaint and notice of hear-
ing thereon having been issued and served by the General Counsel of the Na-
tiQnal Labor Relations Board , and an answer having been filed by the above-
named Company, herein called the Respondent , a hearing involving allegations
of unfair labor practices in violation of Section 8 (a) (1), (3 ), and (5) of
of the National Labor Relations Act, as amended , 61 Stat . 136, herein called
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act, was held in Morganton, North Carolina, from January 30 to February 4
and February 18 to 21, 1952, before the undersigned Trial Examiner. By
order of the Board, issued before the complaint, consolidated with said hearing
was hearing on certain challenged ballots, an issue arising from a Board-con-
ducted election held at the Respondent' s plant in Case No. 34-RC-311.
In substance the complaint alleges and the answer denies that the Respondent :
(1) Between April and October 1951, to discourage union membership and
activity, discriminatorily discharged, laid off, or demoted 14 named employees;'
(2) on and after April 21, 1951, refused to bargain collectively with United
Textile Workers of America, AFL, herein called the Union, although the Union
was at all times on and after April 21 the exclusive bargaining representative of
all employees in an appropriate unit; and (3) by the foregoing conduct and by
questioning, threatening, and spying upon its employees interfered with, re-
strained, and coerced them in the exercise of rights guaranteed by the Act.
At the hearing all parties were represented, were afforded full opportunity to
be heard, to examine and cross-examine witnesses, to introduce evidence perti-
nent to the issues, to argue orally upon the record, and to file briefs and proposed
findings and conclusions. A brief has been received from General Counsel.
A motion by the Respondent to dismiss the complaint, upon which ruling
was reserved, is disposed of by the findings, conclusions, and recommendations
below.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Lingerie, Inc., is a North Carolina corporation, with plant and principal place
of business at Morganton, North Carolina, and is engaged in the manufacture
and sale of ladies' underwear and apparel.
During the year before the hearing the Respondent purchased raw materials,
delivered at the Morganton plant, valued at more than $50,000, more than 50
percent of which was received from points outside the State of North Carolina.
During the same period the Respondent sold and shipped finished products
valued at more than $50,000, more than 50 percent of which was shipped to points
outside the State of North Carolina.
H. THE LABOR ORGANIZATION INVOLVED
United Textile Workers of America, AFL, is a labor organization admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. ,S'urreillance and coercion
Self -organization among the Respondent 's employees, numbering about 150,
began early in April 1951. Six girls met with the head of a union local at
I The following individuals and the date of the alleged discriminations , are as follows :
Thelma Williams -----May 7 Ella Hudson-------May 14 Nell Stroupe-------April 24
Betty Chester ------- May 30 Nina Wilson--------May 28 Azalea Mull--------May 31
Louise Abernathy____June 7 Evelyn Webb ------April 24 Jane Busle------October 12
Morene McCurry____July 24 Nan Price --------October 3 Jean Patton ---------May 7
Elizabeth ( Whisnant ) Joyce Isaacs ---- ---- July 24
Huffman---------July 24
LINGERIE, INC. 1383
another Morganton plant on April 12 , and by arrangement then made the girls
gathered 3 days later with union officials at the home of employee Jean Patton.
Many girls signed union authorization cards between the two dates, being
solicited particularly by Jean Patton , who is one of the employees involved in
allegations of discrimination and coercion.
The Respondent 's two top officials , President Sherrod Salsbury and Industrial
Engineer James W . Tiller , according to their own testimony , promptly became
aware of the union activity . They took immediate and most direct steps to
combat it. Salsbury testified that he was told by Tiller on Friday , April 13, that
"it looked as though we had a Union started ." He admitted being "disturbed
and upset." He said that he called in his forelady , Merline Williams , and she
reported "she had heard and observed the same thing ." That same night Sals-
bury and Tiller went to the home of employee Louise Abernathy , who had
attended the April 12 meeting with Patton . Salsbury told her he had tried to
see other employees that night , but they had either been out or busy . He said
he had been taken "by surprise ," wanted to know "if it was serious ," and asked
if it "was true" that union meetings were to be held over the week end. Aber-
nathy frankly told them she was "for the Union ."' Tiller said he guessed they
would have to wait until Monday to see other girls. Her discharge a few weeks
later is discussed below.
The next evening ' Salsbury and Tiller met employees Mary Grady and "Lib"
Fisher on the street . He asked if they knew about a union meeting being held,
and why the women wanted a union . He also told them he had already called
employee Tarn Palmer to find out about the Union , but she had not been at home.
On Monday , the next working day , Salsbury called several girls into his office
and questioned them about union activities . Jean Patton was sent to his office
by Forelady Williams, apparently on the employee's own time, since the super-
visor took her time sheet and "clocked" her "out." Salsbury told Patton he
"was completely knocked off his feet " when learning of the Union ; asked her
what she knew about it and if it had gone too far to be stopped . He said that
he and Tiller were ready "to fight ." Employee Ruby Orders was asked by Salsbury
what she thought about a union and if a majority were for it. Irene and Pearl
Duckworth were sent to the office by Williams at the same time . Salsbury said
be hoped they would "help him with the difficulty ," said he had heard about
the cards and the meetings and asked what the trouble was. He asked why
they wanted a union , and if it had gone too far to be stopped . He told them
they were then free to come to him directly with their problems , but with the
Union their "individual" rights would be taken from them.
Employees Myrtle Greene and Vivian Ross were similarly interviewed that
day, and questioned about "the mess . . . in the mill ." On the same day or
shortly thereafter Jane Busic was likewise asked by Salsbury if she was for
the Union . She replied that she thought that was her business . Salsbury then
said that they would "have to pull one way or the other ," and could not "remain
in the middle." He asked her if she didn 't know that the Union might cause
disturbance enough so he might have to close down the plant . He told her that
if she would take no part in the activities , one way or the other , he would
"stick by" her, pointing out that she had two children dependent upon her.
Busie 's later discharge , after she openly displayed her union adherence, is
discussed below.
On the same day Forelady Williams joined in management 's campaign to
2 The quotations are from Abernathy 's credible testimony . Salsbury admitted his visit,
and denied only that he had asked her if there were to be meetings or if it "were serious."
i The actual date is not fixed . That it most probably occurred on April 14 is established
by the nature of Salsbury 's questioning of the employees.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discourage self-organization. She went to Abernathy, said she knew Salsbury
had talked to her, asked why the employees wanted a union , and added that
conditions in the plant would be worse than then existed If the Union came in.
A few days later Williams asked employee Lena Benfleld if she was "for the
Union." When Benfield said she had signed a card, Williams declared that if
the Union came in Salsbury's attitude toward the girls would change and they
would no longer be able to go to him with their problems. At about the same
time Williams asked Joyce Isaacs, whose discharge is here involved, how she
"felt" about the Union.
Also on April 16 Tiller approached employee Guy Penland, asked if he knew
about the meeting the day before and if he realized that the Union would do
nothing for him. When Penland answered that he "understood" there was a
meeting, Tiller asked who was responsible for starting it and who were members.
Despite such coercion and threats by management officials, employees con-
tinued to organize. By April 21 substantially more than half of them, as set
forth in a section below, had authorized the Union to be their bargaining agent.
On that day a union official telephoned to Salsbury. identified himself, claimed
to represent a majority of the employees, and asked to meet with him. Salsbury
hung up with the succinct reply, "I don't know you, I have never met you."
Three days later the Respondent summarily laid off 11 employees, several of
them permanently, as described below.
Early in May Salsbury obtained the services of a Dr Spendhal, a "manage-
ment consultant" in personnel problems, for the specific purpose, according to
Salsbury, of helping him with "the problem" of union organization which had
so disturbed him It appears, however, that he sought the consultant's aid not
for himself, but to persuade his employees from so inconsiderately organizing.
He sent a number of the girls, particularly Patton and Pearl Duckworth, into
his office to be interviewed by Spendhal, telling them that the latter was a
"psychoanalyst." The Trial Examiner finds that in conducting these interviews
for Salsbury, Spendhal served as his agent. In substance, Spendhal told the
girls, in separate interviews, that Salsbury was "upset" by organization of the
Union, that if they had the Union they would no longer be able to talk to
Salsbury about their problems, and that Salsbury would not agree to a contract.
On the occasion of a union meeting May 4, Forelady Williams engaged in
surveillance. The meeting was held in a hall over an eating place called the
Rainbow Grill, entrances being adjacent Before the meeting employees Mary
Grady and Taru Palmer, previously identified, sat in the grill at a window near
the union hall entrance. Palmer directed one employee coming into the grill
to the union meeting place, and then telephoned to Forelady Williams and asked
her to come down. William drove to the grill, picked up Grady and Palmer,
who promptly told her of the union meeting and those attending it, and then
parked her car across the street. There they remained for about 2 hours until,
according to the forelady, she saw a number of the employees leaving the union
meeting. The Trial Examiner considers it unnecessary to determine whether or
not Palmer was an "agent" of the Respondent, as contended by General Counsel.
She was plainly an informer, and management accepted the information prof-
fered. It is undisputed that both Palmer and Grady told the forelady im-
mediately upon her arrival of the union meeting and that Williams remained for
a period of 2 hours. Her conduct plainly constituted surveillance.'
4 Testimony of Williams as to this incident, in attempting to explain that Palmer called
her because two men were bothering them at the grill , is so fantastic as to deprive her
whole testimony of credibility. That this pattern of testimony was fabricated by the
Respondent, of material more flimsy than the garments it produces, and that Grady willingly
stitched to the pattern, is revealed in the cross-examination of the latter, cross-examination
which was delayed for several days after she was called by General Counsel.
LINGERIE, INC. 1385
Grady frankly admitted , and it is found , that on later occasions , after union
meetings , she and Palmer talked with Williams "about the girls that were going
to the meetings."
On the Monday following this meeting Supervisor Amos Deese came to employee
William Stokes and told him he was "shocked" that he had attended , that it
would "take him a long time" to forget it, and that "things would not be the
same any more ." Deese pointed out that he had "gone to bat" for the employee-
getting a raise for him a few days before, and the knowledge "was like a slap
in the face."
In summary , the Trial Examiner concludes and finds that in mid -April the
Respondent openly embarked upon a campaign of illegal action against the
Union by engaging in Interference , restraint , and coercion . The conclusion rests
particularly upon the following : ( 1) The conduct of Salsbury and Tiller in
questioning employees about the Union and their activities and preferences, about
union meetings , membership , and attendance , in threatening loss of access to
management by individuals if a union came in, in promising to "stick by" Busic
if she would avoid union activities , and in sending employees to be interviewed
by an agent labeled as a "psychoanalyst "; (2) the threat of the psychoanalyst
that individual rights would be removed if the Union came in; (3) the surveil-
lance engaged in by Forelady Williams as well as her threats to employees that
with the Union in the plant conditions would be worse; and (4) the threat
implied by Deese that employee Stokes could expect no further raise because he
had attended a union meeting.
B. The layoffs of April 24
Three days after Salsbury hung up on the union official's request to bargain,
the Respondent laid off 11 employees , an event of unprecedented magnitude so
far as the record reveals . Although this mass layoff was not specifically alleged
in the complaint as an unfair labor practice , only 2 individuals involved being
claimed as discriminated against, appraisal of the relevant facts is of probative
value in determining the merit not only of the two layoffs directly involved, but
also in the refusal -to-bargain issue.
At least 7 of the 11 employees laid off on April 24 had previously signed union
cards. In view of the facts that Salsbury attempted to reach Taru Palmer as
early as April 14 and that she thereafter openly became an informer against
the Union and her fellow employees , and of the questioning of employees by
various management officials, the Trial Examiner is persuaded that the Respond-
ent well knew which of the 11 laid off on April 24 were union adherents. No
credible evidence was adduced by the Respondent to establish a nondiscrimina-
tory method of selection . Tiller said blunty that it was not "based on any one
thing, none of them ." In any event the Respondent's sudden action , taken at a
time when the head of the concern was displaying open hostility to their organi-
zational efforts, could have affected employees generally in no other reasonable
way than as a precipitate move to deprive them of their legal rights.
The vague and confused , as well as contradictory , testimony of the Respond-
ent's officials as to this layoff fails to support any other conclusion than that it
was made with the intent and carried out for the purpose of discouraging further
union activity . At one point in his testimony Salsbury claimed that at the time
his inventories were too high , and one of his customers , Sears, Roebuck & Co.,
instructed him to "make drastic curtailment ." Not only was no documentary
proof of such instruction produced , but on cross-examination Salsbury admitted
that it was his practice to carry Sears ' goods in inventory . No records , and it is
reasonable to believe that records were available , were offered to corroborate
either his claim of high inventory or lack of material.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his brief General Counsel contends :
Discrimination in regard to tenure of employment of a group of employees
including non-union members tends to discourage membership in a labor
organization no less than discrimination against union members alone. The
situation is analogous to a lock out.
The contention clearly has merit in this case. Both the summary action of
April 24 and the method of selection were designed to discourage union activity,
and were discriminatory'
Nell Stroupe and Evelyn Webb. These two were laid off on April 24 and
since then have been refused reinstatement. In point of service Stroupe was
one of the Respondent's older employees, having worked at the plant from 1948
until she took maternity leave in July 1950. Williams called her back to work
on April 9, 1951, an additional fact militating against the merit of Salsbury's
claim that a general layoff was necessary at about this time. She was experi-
enced at various tasks and always made her production quotas. Her desirability
as an efficient employee is attested by the fact that her forelady asked her to
return. That the Respondent was aware of her union adherence is reasonably
inferred and found from the undisputed fact that she told Taru Palmer of it.
Just before 4 o'clock on April 23, when the shift ended, Stroupe left her table to
get a drink of water. Williams told her she had "no business" doing that and
laid her off for a week. Two days later Stroupe received from Tiller a letter
telling her that she was laid off because of material shortage and overstocking.
Although Stroupe has since then repeatedly sought reinstatement, and although
new employees have been hired, she has not been reemployed. No reason sup-
ported by credible evidence was given by the Respondent for either the layoff or
the refusal to reinstate her. Tiller said she was one of the "newest" employees,
a claim contrary to the Respondent's own employment records.
General Counsel does not raise the issue of discrimination relative to Stroupe's
being sent home for a week the day before Tiller sent her notice of layoff, dated
April 24, which made the dismissal permanent. The merit of Williams' action
is therefore not determined. It is clear, however, and the Trial Examiner
concludes and finds that Stroupe was effectively discharged as of April 24
discriminatorily and to discourage union membership.
Webb began work for the Respondent early in March 1951. She was laid off
with 10 others on April 24.° She made her production quota and her work was
not criticized. She signed a union card on April 14. One day, before her layoff,
her supervisor, Pearl Reese, came to her and, in effect, told her that by trying
to get a union in there they were bringing in an outsider. Not only because
of this incident, but because of the small plant and the undisputed informer
activities of Taru Palmer, the Trial Examiner is persuaded that management
knew of her union adherence by April 24.1
No credible evidence was offered to support the claim of Tiller that Webb
was selected for layoff because she had not "attained the unit hour we thought
a girl should attain." In August Webb sought but was refused reemployment,
5 That some of these employees were later called back does not negate the validity of this
conclusion . There is no showing that any of them were paid for the time lost , or that the
Respondent disavowed to employees generally its antiunion purpose in ordering the layoff.
6 Webb said April 26. The Trial Examiner considers this an error in recollection.
Respondent 's witnesses , with access to records , placed it as April 24.
1 Although Forelady Williams denied knowing Webb "belonged to the Union" on April 24,
she admitted that she "figured she was" some months later when she came in to vote at the
Board election.
LINGERIE, INC. 1387
and since then has not been recalled. As heretofore noted, a number of new
employees were hired after April 24.
The Trial Examiner is convinced and finds that Webb was, in effect, dis-
criminatorily discharged on April 24 to discourage union membership and activity.
The Respondent's treatment of Stroupe and Webb interfered with, restrained,
and coerced employees in the exercise of rights guaranteed by the Act.
C. The discharge of Thelma Williams
Thelma Williams, a competent and experienced employee, was summarily
discharged on May 7, the next working day after Forelady Williams had engaged
in surveillance of a union meeting. The employee had joined the Union,
solicited others to join, and not long before her discharge bad been told by her
supervisor, Pearl Reese, that she thought every one in her corner was "for" the
Union. Because of Reese's remark and for the reasons set forth in the case of
Webb, above, the Trial Examiner is convinced and finds that by May 7 manage-
ment was aware of her union adherence. In view of the Respondent's clearly
defined pattern of discrimination against union members, it reasonably follows,
in the absence of some credible and legal cause, that Thelma Williams was
probably a victim of the same antiunion purpose.
The reason advanced by the Respondent is that she violated a plant rule.
The facts, admitted by Reese, are that just before closing time on May 7 employee
Williams came to her and asked if she and another girl could punch out at a
clock other than their usual one. Reese gave her this permission, followed the
employee back to her work table, and fired her for having left the table. This
trivial act of the employee, the Respondent urges the Trial Examiner to believe,
was the real reason for the dismissal, in that it violated a plant rule . The rule
read, in part:
Drastic changes must be made in our punching of time clocks at noon and
at the end of our work day. . . . This will eliminate the crowded lines .. .
it is to be emphasized that employees may not leave their work places or
machines until the horn has sounded at 12: 00 noon and until the final horn
has sounded at 4: 00 P. M. Failure to observe this regulation will result in
penalties of enforced time off or complete dismissal as the case may warrant.
Management explained and the notice plainly says that the rule was promul-
gated to prevent crowding of the line at the time clock . Reasonable enough.
But employee Williams had not gone to the time clock , she was not even a line of
one at the time clock, but had merely sought and obtained certain permission
from her own supervisor. She had not violated the rule.
The Trial Examiner is convinced and finds that the incident served as a pretext,
while the real reason for her discharge was to discourage union membership,
and that this discriminatory treatment interfered with , restrained , and coerced
employees in the exercise of rights guaranteed by the Act.
D. The demotions of Jean Patton and Ella Hudson
Also on May 7, as noted above, the first working day after Forelady Williams
spied upon employees attending a union meeting , Jean Patton was suddenly
shifted from her regular job, which for nearly 2 years she had been creditably
performing according to the admission of management . A week later the same
treatment was accorded to Ella Hudson , although she had been on the job from
which she was removed for a lesser period of time than Patton . Each was
removed from her job on what the Respondent terms its Sears ' line, of one
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operation in the production of certain mentionables referred to frequently during
the hearing as "panties ," to work of many operations on many garments on what
is called the Shadowline . Each girl protested her transfer , on reasonable grounds.
Upon transfer to Shadowline they were changed , almost daily and sometimes
several times a day, from one operation to another, from one garment to another,
and from one machine to another. They thereafter earned less money, a fact
documented from the Respondent's own records.
As to Patton, since her transfer to Shadowline, credible evidence establishes
that she has never been permitted to perform the same operation in which she
was admittedly skilled, although such operation is also performed on Shadowline.
Both girls were required to do work in which they had had no previous experience,
and because of such frequent transfer they were seldom able to acquire skill
enough to earn, under the Respondent's piecework system, as much as when on
their regular jobs.
In the practical sense both girls were plainly demoted , for their earnings
were reduced . It is General Counsel's contention that the demotions were dis-
criminatory , and for the purpose of discouraging union activity . The Re-
spondent denies the purpose alleged and claims the action was not discriminatory
because other girls have also been transferred from one line to another.
The Trial Examiner considers that evidence adduced by the Respondent to
support the latter point,-absence of discrimination, to be both unpersuasive
and only remotely material. As noted heretofore, the testimony of Forelady
Williams is of dubious reliability. There is no credible evidence to show that
any other girls have been so consistently and repeatedly shifted from operation
to operation after being transferred from one line to another , or assigned to
jobs in which they have had no previous experience . Even if such credible evi-
dence were present, there is no showing that such transferees had previously held
regular, high paying jobs over a long and uninterrupted period.
That in demoting Patton and Hudson the Respondent violated its own policy
is made clear by the testimony of Sewing Foreman Dan Avery, who replied
"Absolutely" when asked if it were the policy to try to keep transfers to a
minimum, and " that is right" when asked if he did not try to keep employees on
"a single job or operation ." And at the hearing in Case 34-RC-311, Salsbury
himself made it clear that management did everything possible to prevent such
transfers.
No operational necessity was advanced by the Respondent , supported by cred-
ible evidence , for transferring Patton and Hudson . Their regular jobs were not
abandoned . The only explanation given by Tiller as to Patton was that she
had been a good operator on the Sears line and he thought she would be on
Shadowline. Williams' unsupported claim that Hudson was "needed" on Shadow-
line is unconvincing.
Discrimination as to Patton and Hudson plainly exists . The real purpose is
found in the Respondent 's open hostility toward self-organization of its
employees.
Patton was at the time and continues to be the outstanding leader in the
Union . Hudson was with Patton when the first group meeting was held on April
12. She distributed handbills openly, solicited members, and attended union
meetings. The Trial Examiner is convinced and finds that before May 7,
management was well aware of the union leadership and activity of both Patton
and Hudson.
The Trial Examiner further concludes and finds that Patton was discrimina-
torily demoted on May 7 and Hudson on May 14 because of their union activity,
and that by thus discouraging union membership the Respondent interfered with,
LINGERIE, INC. 1389
restrained,,and coerced employees in the exercise of rights guaranteed by the
Act.
E. The discharge of Nina Wilson
When Wilson was employed by the Respondent in August 1950, she was as-
signed to seaming the sides of "panties." Later she seamed "gussets." "Gus-
sets," it would appear from testimony and the sample garment General Counsel's
Exhibit No. 8 in evidence, are another topographical division of the same unit.
She was summarily fired on May 28, as were Betty Chester and Azalea Mull
on May 31-all being charged with performing bad work. All were discharged
about 2 weeks before a Board hearing in Case No. 34-RC-311.
Wilson joined the Union shortly after the organizational campaign began, and
solicited other members. Early in May Forelady Williams came to her, asked
what she thought of the "stir up in the plant," and said she had heard she was in
the Union and in it "pretty deep." Management was thus aware of Wilson's
union activity. In view of the discriminatory and antiunion conduct of the
Respondent it reasonably follows that similar discrimination was visited upon
Wilson, unless a preponderance of credible evidence supports some other claim
of motive by the Respondent.
The claim of "bad work" as a reason for the dismissal rests in large part
for support upon the testimony of Forelady Williams, whose unreliability as a
witness has already been found. That Wilson made occasional mistakes is
humanly probable ,-indeed management witnesses admit that making mistakes
was common. But no records, and no credible testimony, establish that Wilson's
work was of any lower quality than that of others who were not dismissed.
Merit as to the claim of bad work is weakened, moreover, not only by the fact
that Wilson had been complimented on her work by her immediate supervisor,
but also by the fact that when discharging her Forelady Williams suggested that
she seek work at another local plant and told her that Avery had agreed to
"highly recommend" her. Williams' suggestion reveals,-not her conviction
that Wilson was in fact an inefficient worker, but that she wished, through this
pretext, to rid her working force of an active union member.
The Trial Examiner concludes and finds that Wilson was discriminatorily
discharged on May 28 to discourage union activities, and that thereby the Re-
spondent interfered with, restrained, and coerced employees in the exercise of
rights guaranteed by the Act.
F. The discharge of Betty Chester
Chester was working as an inspector at the time of her discharge on May 30,
a lower paying job to which she had been transferred shortly after Forelady
Williams observed her, on April 21, coming out of a union meeting. Promptly
after making this transfer, Williams criticized Chester for passing defective work.
On May 30, Williams summarily discharged her, showing Chester a number of
garments which she claimed the employee had passed.
Neither garments nor records were produced to support Williams' claim of bad
inspecting on Chester's part. Williams' unreliability as a witness has been
found . Of two subordinate supervisors called by the Respondent on this point,
the one (Pearl Reese) who was directly in charge of Chester's work, admitted
that she had not seen the bad work attributed to the employee at the time of
dismissal until Williams had called it to her attention. Nor did Reese even
then examine the work with care, but only observed Chester's number on the
"tickets." Lack of credible evidence fails to establish clearly that Chester did
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in fact "pass bad work ," but only that upon being dismissed Williams showed
her some bearing her number on the tickets.
Even if it be accepted as a fact that Chester actually passed bad work , credible
evidence makes it plain that such mistakes are common at the plant and not
customarily punished by discharge . She was clearly competent to perform her
previous job, at which she had earned higher pay, and no reason was advanced
by the Respondent for failing , if her inspection was faulty , to put her back
on her regular job.
The inherent probabilities point to purposeful transfer of Chester , shortly
after Williams saw her leave the union hall , to a job in which she would be
vulnerable because of inexperience . In any event , the Trial Examiner is con-
vinced and finds that the real reason for her discharge was her union activity,
and that by thus discouraging union membership, the Respondent interfered
with, restrained, and coerced employees in the exercise of rights guaranteed by
the Act.
G. The discharge of Azalea Mull
Mull was the third of the group of employees discharged shortly before the
representation hearing. She was dismissed on May 31 and told it was because
of "bad work," although she had apparently been an efficient and satisfactory
employee for nearly a year.
Mull was among the first to join the Union and at once became active in
soliciting new members. On May 7 she distributed union handbills at the plant.
Two days after this open display Foreman Avery, who customarily did not
inspect her work, stopped at her machine , told her her work was sloppy without
indicating or showing her in what respect it was wrong, and told her this was
her "last chance."
Early the morning of May 31 Avery called her to a table on which were three
bundles of garments which then had her tickets on them. He pointed out where
certain stitches were missing, and fired her-telling her, as had Forelady Williams
told Wilson under almost precisely the same circumstances, that if she would
apply at another local plant he would recommend her.
While it is probably a fact that Mull made mistakes, as did most girls accord-
ing to testimony of management, the record is barren of credible evidence to
establish that her work was so bad as reasonably to warrant discharge. Had
she actually been an unsatisfactory employee, it is difficult to believe that Avery
would have offered to recommend her for similar work elsewhere.
Her discharge was of a pattern with that of Wilson. A warning without
explanation was voiced immediately after she was seen active on behalf of the
Union and as the representation hearing drew near the pretext of bad work
was used as a means of ridding the plant of an active union adherent.
The Trial Examiner concludes and finds that Mull was discriminatorily dis-
charged to discourage union membership , and that the Respondent thereby
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed by the Act.
H. The discharge of Louise Abernathy
On June 7 , a week before the Respondent was due to appear at the Board
hearing, Salsbury himself fired Louise Abernathy who, with Patton, had been
a known leader of the Union from the beginning of the organization . As found
above, Salsbury and Tiller both called at her home on April 13 . And Forelady
Williams threatened her with "worse" conditions if the Union came in. Yet
LINGERIE, INC. 1391
Abernathy continued to persist in exercising rights guaranteed by Congress, and
would not withdraw from the Union.
The surrounding circumstances point directly to an illegal discharge. The
event itself, as described by several witnesses for the Respondent , was a trivial
incident seized upon by Salsbury as a pretext for circumventing the law. That
the Respondent well recognized that fact is implicit in Tiller 's testimony, when
he admitted he knew that by firing her "we would probably wind up somewhere
explaining to somebody."
In summary , the credible facts immediately preceding the dismissal are as
follows. A rumor had long been prevalent in the plant , a fact admitted by
Salsbury , that employees would be permitted to make only a certain sum in
wages each day. Some inspectors , at least, were in fact limited as to the amount
they were permitted to earn. No one had ever been fired or otherwise disciplined
for spreading the rumor, nor had the Respondent ever attempted to dispel it by
simply posting a notice on a bulletin board.
On June 6, the day before Abernathy 's discharge, Supervisor Pearl Reese stood
by another employee , Duckworth , watching her at her machine which was near
Abernathy . Later the same day Duckworth was called from her machine by
the designer , and as they left , Abernathy remarked to two girls nearby that "they
are taking Faye Duckworth to the office , I think." Reese came up, asked
Abernathy why she thought so, and Abernathy replied that "Faye has been
expecting to go because she has been making over $10.00." Reese, who clearly
had authority to fire Abernathy , took no action , but apparently passed the word
on to Forelady Williams . The next morning both Williams and Salsbury came
to Abernathy and berated her. Salsbury created something of a disturbance by
thumping a table, apparently accused her of starting a rumor which , as a witness,
he admitted was already current . In the resultant female flurry , Duckworth
wept, again a not uncommon occurrence at the plant . Salsbury called Abernathy
to his office, and in firing her said , "your interest is not the interest of the plant."
In that final remark, it appears to the Trial Examiner , Salsbury revealed his
true motive in precipitating the discharge . Ile had sent employees to a "psycho-
analyst" in an endeavor to persuade them that his antipathy toward the Union
should also be their interest . Abernathy was not persuaded . She was fired upon
a minor pretext . There is no merit in the Respondent 's contention as to her.
The Trial Examiner concludes and finds that Abernathy was discriminatorily
discharged on June 7 because of her union leadership , and that the Respondent
thereby interfered with , restrained , and coerced employees in the exercise of
rights guaranteed by the Act.
I. The discharges on July 24 of Elizabeth ( Whisnant ) Huffman , Morene
McCurry, and Joyce Isaacs
These three effective discharges again fall into a group pattern . All were
active union adherents . All left the payroll on the same day, shortly before the
Board election was ordered and an eligibility date set. At a preelection confer-
ence Salsbury omitted all three from the eligibility list on the grounds that they
had either been laid off or had quit.
Forelady Williams frankly admitted that she knew Huffman belonged to the
Union . McCurry was seen frequently by Williams in the Company of Louise
Abernathy , a known union leader , when they went home to lunch . Isaacs had
been one of the first six girls to initiate the organization, visited employees with
Patton , is a sister of Thelma Williams whose discriminatory discharge has been
described above , and when questioned by Forelady Williams admitted that she
believed in unions . It is concluded and found that each of the three was well
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
known by management, before July 24, to be in favor of, as well as active on
behalf of, the Union.
As in previous eases when the Respondent laid preliminary groundwork for
forthcoming pretexts, both Huffman and McCurry were transferred to inspection
jobs from their regular work about 2 weeks before July 24, although other girls
remained on the operation they left.
Both were laid off on July 24, being told by Avery that there was no work
for them Neither has been recalled. The Respondent's own records refute
the claim of no work. Two new employees were hired at about the same time
as inspectors : Betty J. McNeely some 2 weeks before July 24, and Nina Crawley
about 2 weeks after July 24
Isaacs, also an inspector, had been an employee of the Respondent since 1948,
being out for a period on maternity leave in late 1949 and early 1950. On July
24, 1951, she again asked for maternity leave, but was told by Forelady Williams
she did not need it, but that when she was ready to come back to see her. A
week later, when she came to the plant for her pay check, she found in it a slip
stating "no work available." She has never been recalled for work, and the
Respondent removed her from the payroll before the election.
The testimony of Forelady Williams as to Isaacs is vague and confusing. In
substance she said Isaacs quit on July 24. Not only, as found, is Williams'
testimony generally unreliable, but had Isaacs in fact quit her job there is no
reasonable explanation in the record for the Respondent' s paying for her
later hospital bills.
The Trial Examiner concludes and finds that Huffman , McCurry, and Isaacs
were effectively and discriminatorily discharged as of July 24 because of their
union activity, and for the purpose of defeating the Union at the impending
election, and that thereby the Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed by the Act.
J. The discharge of Nan Price
According to the Respondent's records there were no discharges or layoffs
from July 24 until October 3. On September 11 the Board election was held,
just before which Salsbury sent each employee letters urging her to vote against
the Union, closing one letter as follows :
In the light of all these considerations, I believe you will surely come
to the conclusion-That you stand to lose if this Union were to come in here
and that you stand to gain by keeping it out! [Emphasis in original.]
The union lost the election by three votes. Ballots of eight individuals, all
found above to have been discriminatorily discharged, were challenged by the
Board agent because their names were not on the eligibility list submitted by
the Respondent. Investigation of the challenges followed.
It is reasonable to believe that Salsbury, in view of the challenged ballots,
had doubt that his victory over the Union was yet clearly established. Two
more known union adherents were removed from the payroll.
In point of service Price was one of the older employees on October 3 when
she was informed there was no more work for her. She had begun work for the
Respondent in 1948, and was skilled in several different operations. Before the
election she had been an active union member, attending meetings and soliciting
others to join. On September 11, the election day, she wore a union button
openly in the plant, and continued to wear it until September 14, when she went
home ill. When she returned on October 3 she was informed by Avery that her
LINGERIE, INC. 1393
job had been combined with others and there was no work for her. She was
given a layoff slip stating that her job had been curtailed and combined with
others which required greater versatility. No management representative, in
testifying as to Price's layoff, testified credibly that she lacked versatilty, a
position difficult to maintain in view of the fact that at least one new and inex-
perienced employee had been hired not long before." They contended only that
there was no work for her to do, and that no one had been hired since October 3.
According to the Respondent's records, at least one new employee, Bobby Watts,
was,hired in January 1952.
In view of Price's unquestioned skill, experience, and long service, and con-
sidering the whole pattern of the Respondent's discriminatory discharges and
layoffs, the Trial Examiner finds the evidence insufficient to support the claim
that Price has been denied work because none has been available.
The preponderance of credible evidence sustains the complaint. The Trial
Examiner concludes and finds that Price was, in effect, discriminatorily dis-
charged on October 3, when she returned following her brief illness, to dis-
courage union membership, and that thereby the Respondent has interfered with,
restrained, and coerced employees in the exercise of rights guaranteed by the Act.
K. The discharge of Jane Busic
Busic also was an employee of long service, having started work at the plant
in 1948. As described earlier in this Report, Busic was among the employees
to be called into Salsbury's office in April and queried about the Union. When
she promised to remain inactive, Salsbury agreed he would "stick by" her. She
survived the several discriminatory layoffs and discharges that followed, and
Salsbury frequently stopped by her machine to talk.
On election day, however, in September, Busic openly wore a union button.
Salsbury ceased to talk to her.
Just before the election she was transferred to a new job from that in which
she had had experience, and an inexperienced girl was put on her old job. In
the new work she admittedly failed to make the production standard manage-
xnent told her they would require of her. Her explanation is reasonable. As
in the case of Patton her new job required changes, several times a day on
occasions, of styles, thread, and attachments. She was fired on October 12,
being told her work was unsatisfactory.
The Respondent claimed that she was discharged for not making production
standards. That she failed to meet them is undoubtedly true. Not only was the
standard one arbitrarily imposed by the Respondent, but management had clearly
placed her in a position where meeting the standard was unlikely. No credible
reason was advanced or supported by credible evidence to show why she was
not permitted to return to her regular job. It is plain that on the old job she
was satisfactory, or she would not have remained on it for nearly 3 years.
The Trial Examiner is convinced and finds that claiming her low production
on the new job was merely a pretext, ahd that the real reason for discharging
her is to be found in Salsbury's resentment against her for openly advocating
the Union on election day.
It is therefore concluded and found that Busic was discriminatorily discharged
on October 12 because of her union activity, and that by such action the Re-
spondent interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed by the Act.
" Edna Carswell on August 14
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
L. The refusal to bargain
The complaint alleges, the Board found on August 16, 1951,9 and the Trial
Examiner now finds that an appropriate unit of the Respondent' s employees for
purposes of collective bargaining consists of :
All production and maintenance employees at its Morganton plant, including
examiners , the stockkeeper, stock clerk, machinists, inspectors, and designer,
but excluding the time-study man, payroll, production, and order clerks, office
clerical employees, guards, section girls, and all other supervisors.
At the hearing there was introduced into evidence a list of 154 such employees,
appearing on the payroll of the Respondent on April 21, 1951. Also introduced,
unchallenged by the Respondent, into evidence were authorization cards signed
by 88 employees whose names appear on that payroll list, all such cards having
been signed on or before April 21. It is clear and the Trial Examiner finds
that on April 21, 1951, the Union represented a majority of the Respondent's
employees in the above-described appropriate unit. It is therefore found that
on April 21 and at all times since then the Union has been and is now the
exclusive representative of all employees in the appropriate unit for the purpose
of collective bargaining.
On April 21 a union official, as noted above, telephoned to Salsbury and asked
to meet with him as the representative of the majority of his employees. The
Trial Examiner concludes and finds that this was an effective request to bargain.
Salsbury hung up, declining to talk, thus effectively denying the request to meet
with the union official.
To conclude that the Union did not request to bargain because the request
was not in writing, or uttered by ritual, would be possible only in a legalistic
vacuum, secure from the invasion of reality. Salsbury was well aware of the
fact that the Union desired a contract with him, and his hired "psychoanalyst"
made it plain to employees interviewed by him that Salsbury had no intention
of contracting with the Union.
Nor is it necessary, to find that Salsbury refused to bargain, that at sometime
he told the union representative in so many words that he would not bargain.
By his actions Salsbury made his refusal plain and unmistakable. He promptly
laid off 11 employees, and thereafter engaged in a long series of discriminatory
acts.
In short, the Trial Examiner concludes and find that on April 21, 1951, and at
all times thereafter, the Respondent has refused to bargain with the Union as
the exclusive representative of all its employees in the appropriate unit, and
that by such refusal it has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed by the Act to
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 set forth in section I, above,
have a close, intimate, and substantial 'relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
Lingerie, Inc., 95 NLRB No. 154.
]U In view of this conclusion and finding , it appears unnecessary to pass upon the chal.
lenged ballots in Case No. 34-RC-311.
LINGERIE, INC.
V. THE REMEDY
1395
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act.
It has been found that the Respondent has discriminated in regard to the
hire and tenure of employment of the 14 employees listed in footnote 1 above.
It will be recommended that the Respondent offer to all of them immediate and
full reinstatement to their former or substantially equivalent positions , without
prejudice to their seniority or other rights and privileges , and that they be
made whole for any loss of pay they may have suffered by reason of the discrimi-
nation against them , by payment to each of them of a sum of money equal to
that which she normally would have earned as wages from the date of discrimi-
nation to the date of offer of reinstatement , less her net earnings " during such
period. The back pay shall be computed in the manner established by the Board,
and the Respondent shall make available to the Board payroll and other records
to facilitate the checking of amounts due."
Since it has been found that the Respondent has refused to bargain collectively
with the Union , the statutory representative of all employees in an appropriate
unit, it will be recommended that the Respondent bargain collectively with the
Union and embody any understanding reached in a signed agreement.
The character and scope of the unfair labor practices engaged in indicate an
intent to defeat self-organization of the employees . It will therefore be recom-
mended that the Respondent cease and desist from in any manner interfering
with, restraining, or coercing its employees in the exercise of rights guaranteed
by 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. United Textile Workers of America, AFL, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of the
14 employees named in footnote 1 above, thereby discouraging membership in
the Union, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) of the Act.
3. All production and maintenance employees at the Respondent's Morganton
plant, including examiners, the stockkeeper, stock clerk, machinists, inspectors,
and designer, but excluding the time-study man, payroll, production, and order
clerks, office clerical employees, guards, section girls, and all other supervisors
constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
4. United Textile Workers of America, AFL, is now, and has been at all times
since April 21, 1951, the exclusive representative of all employees in the afore-
said appropriate unit for the purposes of collective bargaining within the mean-
ing of Section 9 (a) of the Act.
5. By refusing on April 21, 1951, and at all times thereafter, to bargain col-
lectively with United Textile Workers of America, AFL, as the exclusive repre-
" Crossett Lumber Company , 8 NLRB 440
u F. W. Woolworth Company, 90 NLRB 289.
242305-53--89
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative of its employees in the appropriate unit , the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (5) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in 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.
7. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
R. A. C. REALTY COMPANY AND DRAPER-OWENS COMPANY and
BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 231,
AFL
R. A. C. REALTY COMPANY AND ALLAN-GRAYSON COMPANY and
BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 231,
AFL. Cases Nos. 10-CA-1151 and 10-CA-1152. December 29,
1952
Decision and Order
On May 29, 1952, Trial Examiner Henry J. Kent issued his Inter-
mediate 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
excepions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and brief , and the entire record in these cases, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner?
1 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
[ Members Houston, Murdock, and Styles].
2 We agree with the Trial Examiner that it will effectuate the purposes of the Act for the
Board to assert jurisdiction over the Respondent 's office buildings in question in these
cases. Cormax, Inc., d/b/a Southland Building and Annex, 94 NLRB 1150 . In accordance-
with our jurisdictional policy, we rely upon the evidence , detailed in the Intermediate,
Report that the Respondent furnishes services to certain tenants in these buildings having
an aggregate value in excess of $50,000 per year. These tenants, considered separately,
include ( a) an instrumentality and channel of interstate and foreign commerce ; ( b) firms
selling and shipping products to points outside the State of Georgia valued in excess of
$25,000 per year; ( c) firms performing services outside the State of Georgia valued in
excess of $25,000 per year . Hollow Tree Lumber Company, 92 NLRB 635.
101 NLRB No. 207.