Lion Brand Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 29, 1944

55 N.L.R.B. 798 (N.L.R.B. 1944)

In the Matter of HYMIE SCH VARTZ, DOING BUSINESS As LION BRAND
MANUFACTURING COMPANY and UNITED GARIIIENT WORKERS OF
.AMERICA
Case No. 16-C-976.-Decided illarch 29,1944
DECISION
AND
ORDER
On January 8, 1944, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
affecting commerce, and recommending that he cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter the respondent filed
exceptions to the Intermediate Report. No request for oral argument
before the Board at Washington, D. C., was made by any of the
parties. The Board 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 respondent's exceptions, and the entire record in the case, and
hereby adopts the findings,' conclusions, and recommendations of the
Trial Examiner, with the following addition :
We agree with the Trial Examiner's finding that the respondent
discharged and thereafter failed to reinstate Presley because of her
union activities, thereby discouraging membership in a labor organiza-
tion. Forelady Norris admitted that Presley's discharge was mo-
tivated, at least in part, by her belief that Presley was,organizing a
movement among the employees to secure overtime work. However,
the respondent contends in his exceptions that such a discharge is not
violative of the Act. As we have held in several recent cases,2 such
1 In his concluding findings the Trial Examiner eironeously found that Norris' admission
of the discriminatory nature of Presley's discharge was overheard by Noiton We find
that the admission was overheard by Jeffrey, as the Trial Examiner correctly found in a
previous section of his Intermediate Report.
2 Matter of The Sandy 11sll Iron & Brass Woks, 55 N. L. R B. 1, Matter of Eve?
Ready Label Corporation, 54 N. L. R B. 551. See also N. L. R. B. V Tovsea Packing
Company, 111 F. (2d) 626 (C. C. A. 9), cert denied, 311 U. S 668, modifying and enforc-
ing 12 N L R. B 1063. In N. L. R. B. v Central Steel Tube Company, 139 F. (2d) 489
55 N. L. R B., No. 145.
798
LION BRAND MANUFACTURING COMPANY 799
activity comes within the meaning of Section 7 of the Act, and a dis-
charge for such activity also discourages membership in a labor organ-
ization, in violation of both Section 8 (1) and (3) of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (e)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Hymie Schwartz, doing
business as Lion Brand Manufacturing Company, Dallas, Texas, and
his agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Garment Workers of
America, affiliated with the American Federation of Labor, or any
other labor organization of his employees, by discharging or refusing
to reinstate any of his employees, or by discriminating in any other
manner in regard to their hire or tenure of employment or any term
or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities, for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer Leona Presley immediate and full reinstatement to her
former or a substantially equivalent position, without prejudice to her
seniority or other rights and privileges;
(b) Make whole Leona Presley for any loss of pay she has suffered
by reason of the respondent's discrimination against her, by payment
to her of a sum of money equal to the amount which she normally
would have earned as wages during the period from the date of her
discharge to the date of the respondent's offer of i einstatement, less
her net earnings during such period;
(c) Post immediately in conspicuous places throughout his plant,
and niaintam for a period of at least sixty (60) consecutive days from
the date of posting, notices to his employees stating: (1) that the re-
spondent will not engage in the conduct from which he is ordered to
cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that
the respondent will take the affirmative action set forth in paragraphs
2 (a) and (b) of this Order; and (3) that the respondent's employees
(C C A 8) ent'g 48 N L R B 604, the Court sustained the Board' s 8 (1) and (3) finding
as to an employee discharged for "attempting to initiate conceited action" to secure a wage
increase.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are free to become and remain members of United Garment Workers
of America, affiliated with the American Federation of Labor, or any
other labor organization, and that the respondent will not discrim-
inate against any employee because of his membership or activity in
such organization;
(d) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
INTERMEDIATE REPORT
117r Robert F. Proctor, for the Board
Mr. Enrol Corenbleth, of Dallas, Texas, for the respondent
Mrs. Irene Gi eathouse, of Dallas, Texas, for the Union.
STATEMENT OF THE CASE
Upon a first amended charge duly filed on November 16, 1943, by United Gar-
ment Workers of America, herein called the Union, the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for the Sixteenth
Region (Fort Worth, Texas), issued its complaint dated November 19, 1943,
against Hymie Schwartz, doing business as Lion Brand Manufacturing Company,
herein called the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notices
of the hearing thereon were duly served upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged in substance
that: (1) the respondent through his named agents and employees has dis-
paraged and expressed disapproval of the Union, has interrogated his employees
concerning their union affiliation and has urged, persuaded, threatened and
warned his employees to refrain from assisting or becoming members or remain-
ing members of the Union; and (2) the respondent on or about June 29, 1943, dis-
charged Mrs Leona Presley and has since failed or refused to reinstate her
because she joined or assisted the Union or engaged in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection
On or about November 29, the respondent filed his answer in which he admits
certain facts as to the nature of his business but denies that he engaged in any
unfair labor practices as alleged in the complaint The answer avers as an
affirmative defense that Presley was dischaiged because she was a slow operator
and refused and failed in her employment to work or produce ni accordance with
the instructions of the respondent
Pursuant to notice, a hearing was held in Dallas, Texas, on December 2, 1943,
before the undei signed, Charles E Persons, the Trial Examiner duly designated
by the Chief Trial Examiner. The Board and the respondent were represented
by counsel and the Union by one of its officials All parties participated in the
hearing. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence was afforded all parties.
At the opening of the hearing the respondent moved that all witnesses be
excluded from the hearing room until called to test)fy This motion was granted
without objection subject to the Board's established policy which excepts the conm-
plaining witness from the operation of this rule. The respondent moved to (Its
LION BRAND MANUFACTURING COMPANY 801
miss the complaint generally because its allegations did not conform to those in
the first amended charge and specifically to dismiss paragraphs 7, 7 (a) and
7 (b) for the same reason. This motion was denied At the close of the hearing
the respondent renewed his motion to dismiss the complaint on the ground that
the evidence did not sustain its allegations. This motion was taken under
advisement and is now denied. The Board moved to conform the pleadings to
the proof. The respondent joined in this motion so far as it affected his answer
and it was granted by the undersigned At the conclusion of the hearing the
parties were notified that they might participate in oral argument before the
undersigned All parties waived oral argument. The parties were duly advised
that they were entitled, upon request made before the close of the hearing, to
file briefs for the considelatiou of the Trial Examiner. No such request was
made and no briefs have been received.
Upon the entire record in the case and from his observation of the witnesses
the undersigned make the following:
FINDINGS OF FACT
T THE BUSINESS OF THE RESPONDENT'
The respondent. Hymie Schwartz. an individual doing business as Lion Brand
Manufacturing Company, is engaged in the manufacture, distribution and sale of
men's wearing apparel at his plant in Dallas, Texas. His present operations are
on contiacts for the United Stales Govetument in the manufacture of clothing
for the Armed Forces Dating the year preceding the hearing the respondent
purchased raw materials consisting of cloth, thread, related products and sup-
plies valued at appioximately $300,000, of which approximately 95 percent was
transported in interstate commerce to the respondent's plant from outside the
State of Texas During the same period the respondent's sales of manufactured
products were approximately $500,000, of which about 65 percent were made to
customers in States other than Texas. The respondent admits that he is engaged
in interstate commerce within the meaning of the Act.
II THE ORGANIZATION INVOLVED
United Garment Woi keis of America is a labor organization affiliated with
the American Federation of Labor and admits to membership employees of the
iespondent.
III THE UNFAIR LABOR PRACTICES
A. Sequence of events; inter fereiiec. restraint, and coercion; the dlseltalge of
Leona Presley
9
Agents of the Union began passing out leaflets each week before the respond-
ent's plant about May 1. 1943 Bi-monthly meetings were held and employees of
the plant were solicited to sign authorization cards. Some signatures were se-
cured in May and the organizational effort continued at least through June.
Mrs. Susie Westerman, an employee of the respondent from January to
August 1943, testified relative to a conversation, in May or June 1943, with
Mrs. Orea Norris. her forelady, as follows.
She called me and said, "Sue, come here". and then she said, "Did you
hear about Conroe' having another union election. I hear they went
' These findings are based on a stipulation of the parties incoiporated in the iecord and
on allegations in the complaint admitted b3 the respondent in his answer
2 The correct name is C'onro
575129-44-i-ol 55--52
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union-C I. O " And, I said I didn ' t hear about it, but that I was work-
ing down there at about the time of that election and then she asked me
if I knew Myriel Vining and I said I knew her well and she said, "You
know she came down here and applied for a job and I was fixing to put
her on and Mrs Cowan [Abbie Cowan a forelady ] called me aside and
told me she was a C. I 0 and then I told her I didn't need her right
then and asked her to leave her telephone number and I would call her,
and then I went to Mr Fisher [Joe Fisher , superintendent of the factory]
and told him what I had done and he said that I had done the right
thing that they didn ' t want anything like that in the shop
As shown by the Board's records an election was held on March 4, 1943, after
public hearing on January 27, 1943 The union concerned was the Amalgamated
Clothing Workers of America , C I. O. It was certified as exclusive bargaining
agent at the Conro plant on March 20, 1943.
Norris denied that she had this conversation with Westerman and also that
ascribed to her by Westerman with Cowan Cowan also denied that the latter
conversation took place. Norris was not questioned specifically regarding the
reference to Fisher, nor was Fisher questioned about it when he appealed as
a witness Norris testified that she did not have a place open when Vining
applied for a, job . After giving Vining a try out Norris took her application
promising to call her if a certain operator did not prove satisfactory . Vining
was not called thereafter
Westerman was in every respect a ready and truthful witness Testimony
given by her as to other matters was fully substantiated Norris was badly
discredited on cross-examination as appears hereinafter She had frequent
lapses of memory and her testimony was at times highly selective . Under these
circumstances the undersigned credits the testimony of Westerman and find
that the conversation above set forth occurred substantially as stated by her
Mrs Leona Presley was hired by the respondent on April 7 , 1943, and dis-
charged on June 29, 1943 She first worked on second banding , and first
banding . Line number 4, of which Norris was forelady , had been reorganized
from sport shirt production to pants manufacture about October 1, 1942. On
May 7, 1943, this line began the manufacture of pants on a United States Gov-
ernment contract for army clothing . There were 47 machine operators on this
line and 0 inspectors . At this time Presley was given a station stitching front
pockets on the right side of the pants This work she continued until her
discharge
Presley did not actively engage in union activities until very shortly before
her discharge . On June 27 certain employees on line number 4 asked Presley
if she could get some of the Union authorization cards . She greed to do so
and asked Hattie Norton, an employee on line number 4 who had told Presley
that she was a member of the Union , to get them. Norton in turn asked Airs
Marie N. Bailey , a representative of the Union activel y engaged in the organ-
izational campaign, for a supply of the authorization cards . Bailey gave Norton
the cards in a plain white envelope on the 27th . The next morning before the
power was on, Norton placed the cards on Presley 's machine . Presley put the
envelope in the pocket of her machine and told one of the employees during
the 10 o'clock rest period that they were there. The employees individually
took cai ds, signed them and replaced them. That evening, the 28th, Presley
took the cards home. The next day she placed them on Norton ' s machine, who
3 See Matter of Conro Manufacturing Company and Amalgamated Clothing Workers of
America (C 1 0 ) February 12, 1943, 47 N L R B. 456 The Board's Ceitification of
Representatives is unpublished . It beats date March 20, 1943
LION BRAND MANUFACTURING COMPANY 803
in turn delivered them to Bailey Ten or eleven cards had been signed This
number includes one signed by Presley dated June 28, 1943°
On the evening of .June 29, after the signed cards had been handed to Norton
and before Presley had punched out on the time clock she was notified of her
discharge by Norris What was then said is sharply in dispute Presley's ver-
cion in her testimony was as follows:
She [Norris] called me and said, "Leona, I want to speak to you and
I understand that you have been passing out cards for the girls to get
more money and also a petition", and she told me the girl who had
gotten one
Q Now who was that girl?
A. Lucille.
Q That girl had told her that you were passing out cards to get more
money?
A Yes sir, and also that she [Norris] had gotten orders to check me
out. And [ said I had passed out cards and signed one myself
Q. You didn't deny that you had passed out cards to get more money-
is that right?
A That is right. But I couldn't say that I passed out a petition when
I had not.
* t M
Q Was there anything said about the union?
A. No, sir.
Norris testified on direct examination as to this conversation : "I told her
that I was not going to use her any more and she wanted to know why and
I told her I had to have somebody to keep the work going on there so that we
could get out our production." Norris further testified that this was the whole
conversation ; that she did not remember whether or not she told Presley she
had instructions to check her out, but she did not think so. Norris further
.tilted that she did not remember whether Presley said anything or not.
During cross-examination Norris was confronted with her sworn statement
given to a Field Examiner for the Board on August 25, 1943, less than 2 months
after Presley's discharge. In this statement Norris averred as she admitted
during her cross examination :
On or about June 29, 1943, becoming exasperated with Mr, Presley's
work I fired her, after talking it over with Mr Fisher At the time I
fired Mrs Presley, I said • "Mrs. Piesley, I want to speak to you a minute."
I told her that she was holding up the work and that I would have to
let her go. During the conversation I said to Mrs. Piesley, "You are
getting the operators stirred up to go down to ask for an hour overtime
every afternoon" One of the girls, Louise Hazelwood had told me that
the girls were getting together to go down and ask Mr. Schwartz for an
hour overtime every afternoon.
The account given by Presley, as well as Norris' sworn statement, is sup-
ported by an incident which occurred on June 30 in the morning, before the
power came on. Westerman testified as follows :
She [Norris] told me, "I discharged Mrs. Pieslev yesterday.
She is telling now that I discharged her because of her passing union
cards around".
' This account is based on testimony by Presley, Norton and Bailey. Some discrepancies
developed as to the exact manner of handling the cards, but the material facts are not in
dispute.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I said, "Well is that so?" And, she said, "Yes I didn't discharge her
for that, I discharged her because she was taking up a petition to go down
and ask Mr Schwartz for more inoiiey and you know if she went down
there with a petition and asked for mote money Mr. Schwartz would
close this line down and you know Leona is telling around that we are
paying you and Audrey in order to hold you up het e, fifty cents nit hour,
and I said, "Mrs. Norris you know that is not so."
The reference to "Audrey" was to Audrey Jeffrey, an employee on line number
4. Jeffrey testified that she overheaid part of Norris' conversation with Wester-
man that morning to the effect that "the reason she let Mrs Presley go was
because she was getting up a petition to take down to Mr Schwartz to get
more money and Mrs. Norris told her not to because any time she did that
Mr. Schwartz would close clown the line." °
Further substantiation for the account given by Presley is found in Norton's
testimony, which is credited b3 the undersigned that on meeting Norton in the
plant on the morning of June 30, Presley told lien: "They laid me off for
signing those cards." Norton replied that she would report the matter to Bailey
After considering the record, the demeanor of the witnesses, the detailed and
direct character of Presley's testimony, in contrast with the vague and contra-
dictory character of Norris' testimony" together with her frequent lapses of
These references to a petition for a wage increare aie not doing explained in the
record. None of the witnesses called disclosed any knowledge of such a petition It is
clear that if such a document was circulated Presley had no iesponsibility for it. Norton
told of an incident which may have furnished the basis for Noiris' reference to a petition.
This testimony reads . "One moaning Mrs White [an employee] was there and one of the
finishing girls, I do not know her naive. and she came along there asking the gals to go
downstairs to ask foi more money and when she left Mrs Norris asked me what she said
and I told her"
"The character of Noires' testimony is indicated by the following extract from her
reducct examination by re.epondent' s counsel Norris had testified that several of the
employees had talked to her about their desire to work an hour's overtime each day and
their intention to take the matter up with Schwartz Norris' testimony continues :
Q. How did Mrs. Presley fit in that picture about this hour overtime? About what was
said or anything about it? As far as she was conceaned prior to the time she was discharged
is what I am talking about'?
A I do not recall
Q I am talking about that petition asking for one hour overtime
A. No, not that I recall
Q But you had had such a conversation with some of the other girls?
A. Yes, sir.
Q Did you know or did you not know when you fired her that she was having anything
to do with this demand or whatevea you want to call it for this hour 's overtime?
A I do not remember.
Q. You cannot recall whether Mrs Presley was mixed up in that?
A. I don t remember
Q You cannot now recall or do you recall that Mrs Presley had been agitating among
the girls for this hour's overtone'?
A I don't i emember
Q. It was stated in this statement of yours something about a Mis Hazelwood-now
who was Mrs. Hazelwood
A She was one of my operators.
Q Was she won king there at the time Mrs Presley was'?
A Yes, sir •
Q You stated in this statement you asked Mis Hazelwood who started it Do yon
recall talking to Mrs Hazelwood about this overtime?
A. I don't remember just exactly what was said.
Q But you do recall having had a conversation with her'?
A. Yes, sir
Q What was the purpose of that convei satiou so far is you ie eii' concei nod
A I was trying to get the girls to go to woik to get cut that forty-five dozen per day
and then they would get more money.
LION BRAND MANUFACTURING COMPANY 805
memory, the undersigned concludes and finds that the account given by Presley
of the conversation at the time of her discharge is substantially correct
B. Respondent's afirmatitie defense for the Presley discharge
Norris hired Presley and was primarily responsible for her discharge. She
testified on direct examination that Presley "was slow for one thing and she
didn't stay at her machine as she should have" When pressed for further
detail as to Presley's conduct Norris testified: "She would go to her machine
and work for a while and then when my back was turned, she would be away
from the machine again." Under cross examination Norris admitted that there
was no rule against leaving the machine nor against talking to other employees,
and that thei e were other operators who talked. She averred, however, that
Presley "right then" was the only one who was slow in the operation on that
line. Norris' testimony was that she asked Presley "once or twice" not to talk
with other operators. Norris further stated that after consulting Fisher she
discharged Presley for "holding pp production," and that this was the sole
reason.
Fisher corroborated Norris fully testifying: "I would always keep after her
[Presley] about being away from her machine . . . and I told her if she
[Norris] couldn't keep her at her machine and to speed up production more
we would have to get somebody in her place." Fisher stated that Presley was
discharged either on the clay of this conversation or on the following day.
Under cross examination Fisher further stated that lie told Norris "to coach
her [Presley] along and see if she could help her." His first acquaintance
with Presley was when he called Norris' attention to her. He was unable to
state her exact function on the production line. Ile admitted that other
operators held up production at times and specified "those who worked on the
pockets and on the back and front" and "occasionally the side seamers."
Schwartz supported the testimony of Norris and Fisher to the extent that
he testified that when the charges were under investigation by the Board's Field
Examiner lie was given substantially the same explanation of the Presley
discharge by Norris and Fisher as that stated in their testimony.
Presley testified positively that she kept work ahead and that no stoppage
of the flow of work was occasioned by delay ascribable to her. She declared
further that she never left her machine to talk with other operators and that
she had never been reprimanded or criticized by her supervisors. She testified
that she had been praised by Superintendent Fisher on the morning of the day
of her discharge and that on inquiring of him about her work "he said it was
good work and to keep it up "'
Presley's testimony regarding her assiduous attention to her duties and
keeping ahead of her work was substantiated by that of three fellow employees
on line number 4, all of whom were so situated that they had her under easy
observation. Westerman, whose experience in garment factories dates from
1923, was a side reamer and depended on Presley for her fronts. Westerman
testified that Presley was very seldom absent from her machine, never fell
behind in her work and usually had three or four bundles ahead. It was
Westerman's testimony that stoppages on the line were due to slowness on the
7 This testimony of Presley was corroborated by employee Norton whose testimony reads .
"He was right there back of me beside her machine and she asked him about her work
and lie said it was good work and she should keep it up." When gdestioned as to the
date, Norton replied• "I think it was the day before she was fired." Fisher when asked
about this incident answered, "I do not remember it "
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part of operators on the backs. Westerman had known Presley for 9 ve are
and had worked with her in four different factories She said of her work:
"I would say she was good Not on the average She was a number one
operator."
Jeffrey, also a side reamer, worked on the line within 8 feet of Presley
Jeffrey testified that Presley did not leave her machine to talk to others, and
that she always had plenty of work ahead. Jeffrey agreed with Westerman in
ascribing the cause for delay to operators on "the left side of the back"
Norton, whose machine was within 4 or 5 feet of Presley's, testified Char
Presley "never left her machine except to go to the rest room or something
like that." She further stated when asked whether Presley was holding up
production • "On her side she was considerably ahead I would say. They were
piled up there in front of her on all sides" As to the cause of slow production
Norton testified : "Well it was the backs that we were waiting on. Our side
sewed on backs several clays and we NA ere pulled off our work and helped the
other side."
Schwartz admitted That since' Presley's discharge line number 4 "had several
ups and downs on the production which I cannot explain myself There were
times when we jumped from forty-five, forty-six, seventy-one, and eighty-two
dozen per day and we paid off and then all of a sudden it dropped back down "
The output fell as low as 40 dozen per day. However, no one was discharged
on these occasions as Schwartz freely admitted. Schwartz testified that 4i
dozen output per day should be regarded as the minimum output for line
number 4 and that 60 dozen was a normal production expectation Normal
production should have been reached within 12 weeks after the reorganization
of the line from sport shirt production to operation on pants. This would
mean that the line should have been in full production by January 1, 1943
The record does not disclose how much reorganization was necessary when
the line began production of pants for the army. The transfer of Presley to a
station on line number 4-- at that time suggests that some reorganization
took place
Production figures by weeks for June and July do not indicate that gain in
production resulted from the discharge of Presley These data are:
Dozen Dozen
June 4 ------------- ------------- 187 July 2--------------------------- 160
June 11 ------------------------- 133 July 9----------------------------117
June IS ------------------------- 140 July 16-------------------------- 104
June 25 ------------------------- 157 July 23-------------------------- 122
July 30-------------------------- 164
Av. per week-------------- 154
Av. per week-------------- 133
Thus the average weekly production during Presley's employment in June was
154 dozen. For the month of July after her discharge the average fell to 133
dozen Even with full allowance for the loss of production due to the July 4
holiday, production performance was distinctly better during Presley's employ-
ment in June than during the month following It should be remembered that
Presley was a well experienced operator. Since Fisher admitted that line
number 4 had only a few experienced operators and "most of them were
trained right there," sonic slowness in production must have resulted from this
schooling of green operatives
After considenmg the full record, the demeanor of the witnesses and the sub-
stantiation or modification of their testimony resulting from cross examination,
8 This week included July 4th, a holiday
LION BRAND MANUFACTURING COMPANY 807
the undersigned concludes and finds that the respondent's allegations that Presley
was in inattentive and inefficient operator are not sustained by the record.
Both Norris and Fisher denied knowledge of Presley's union activity. Indeed
they denied knowledge of any union activity at the plant Schwartz, however,
readily admitted that lie had seen union leaflets distributed both before and after
Presley was discharged He stated, "I got one every time I passed there." Cowan
also frankly testified that union leaflets had frequently been distributed before
the plant and stated that she had discussed them with Norris while "going up
and down the steps." Since, as found above, Norris made reference to Presley's
passing out cards when notifying Presley of her discharge, the undersigned places
no credence in Norris' denial of knowledge of Presley's union activities. Further
Norris' sworn statement, the truth of which she confirmed in her testimony,
ascribes Presley's discharge in part to her alleged concerted activity in organizing
a movement to seek an hours overtime work daily. At the close of her testimony
Norris was asked:
Mrs Norris, following the line of testimony I would take it you stated
you fired Mrs. Presley for two reasons, . one because she was slow
in holding up production and the other because she was agitating for
that overtime Is that correct?
A. Yes, sir.
The undersigned finds it significant that Presley's discharge followed imme-
diately upon her activity in securing signatures to union authorization cards.
This unrefuted fact together with Norris' statements on notifying Presley of her
discharge and respondent's failure to substantiate its affirmative defense make it
clear that the discharge and subsequent failure to reinstate Presley was not for
inattention to her duties and for inefficiency but rather because of her union
activities The undersigned so finds
C. Conclusions
The undersigned finds that the respondent has discouraged membership in a
labor organization by discriminating in regard to the hire and tenure of employ-
ment of Leona Presley and has thereby interfered with, restrained, and coerced
his employees in the exercise of rights guaranteed in Section 7 of the Act. The
undersigned further finds that by the statements of Norris relative to the applica-
tion for employment of Vining above described and by Norris' explanation of the
reason for Presley's discharge as stated to Westerman and overheard by Norton,
the respondent has interfered with, restrained, and coerced his employees in the
exercise of the rights guaranteed in Section 7 of the Act
IV. IHE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
It is found that the activities of the respondent set forth in Section III above
occurring in connection with the operations of the respondent described in Section
I above, have a close, intimate and substantial relation to trade, traffic and com-
merce among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor practices,
the undersigned will recommend that he cease and desist therefrom and take
certain affirmative action in order to effectuate the policies of the Act
It has been found that the respondent discharged Leona Presley for the reason
that she joined and assisted a labor organization and engaged in concerted ac-
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tivities for the purposes of collective bargaining and other mutual aid and pro-
tection. It will be recommended that the respondent offer to Presley immediate
and full reinstatement to her former or a substantially equivalent position with-
out prejudice to any seniority or other rights and privileges she may have. It
will be further recommended that the respondent make Presley whole for any
loss of pay she has suffered by reason of her discriminatory discharge by payment
to her of a sum of money equal to the amount she would normally have earned
as wages from the date of her discharge to the date of the respondent's offer of
reinstatement less her net earnings o during said period.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Garment Workers of America, affiliated with the A. F of L., 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 Leona
Presley, thereby discouraging membership in a labor organization, the respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing his 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 (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Hymie Schwartz, doing business as
Lion Brand Manufacturing Company, Dallas, Texas, and his agents, successors
and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Garment Workers of America, af-
filiated with the American Federation of Labor, or in any other labor organiza-
tion by discriminating in regard to the hire and tenure of employment, or any
terms or conditions of employment of his employees ;
(b) In any other manner interfering with, restraining or coercing his em-
ployees in the exercise of the rights to self-organization, to form, join or assist
labor organizations, to bargain collectively through representatives of their own
choosing and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection as guaranteed in Section 7 of the Act.
2 Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Leona Presley immediate and full reinstatement to her former
or a substantially equivalent position without prejudice to her seniority or other
rights and privileges ;
9 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
were than tor the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R . B. 440. Monies received for
work performed upon Federal, State, county, municipal, or other work-relief projects shall
be considered as earnings See RePnblie Steel Co? poration v N L R. B , 311 U. S. 7.
LION BRAND MANUFACTURING COMPANY 809
(b) Make whole Leona Presley for any loss of pay she may have suffered by
reason of the respondent's discrimination against her by payment to her of a
sum of money equal to the amount which she would normally have earned as
wages fiom the date of her dischai ge to the date of the respondent' s offer of
reinstatement less her net earuings10 during such period
te) Post immediately in conspicuous places throughout his plant and maintain
for a period of at least sixty (60) consecutive days from the date of posting,
notices to the employees stating• (1) that the respondent will not engage in
the conduct from which it is recommended that he cease and desist in paragraph
1 (a) and (b) of these recommendations; (2) that the respondent will take the
affirmative action set forth in paragraph 2 (a) and (b) of these recommenda-
tions; and (3) that the respondent's employees are free to remain or become
members of United Garment Workers of America, or any other labor organiza-
tion, and that the respondent will not discriminate against any employee because
of his membership or activity in such organization ;
(d) File with the Regional Director for the Sixteenth Region on or before
ten (10) days from the date of the receipt of this Intermediate Report, a report
in writing setting forth in detail the manner and form in which the respondent
has complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate Report the respondent notifies said Regional
Director in writing that'he has complred with the foregoing recommendations,
the National Labor Relations Boarcl issue an order requiring the respondent
to take the action afoiesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 33, effective November 26, 1943, any
party or counsel for the Board may within fifteen (15) days from the date of
the entry of the order transferring the case to the Board. pursuant to Section
32 of Article TI of said Rules and Regulations, file with the Board, Rochambeau
Building, Washington, D C., an original and four copies of a statement in writ-
ing setting forth such exceptions to the Intermediate Report or to any other part
of the record or proceeding (including rulings upon all motions or objections)
as he relies upon, together with the original and four copies of a brief in sup-
port thereof. Immediately upon the filing of such statement of exceptions and/or
brief, the party or counsel for the Board filing the same shall serve a copy
thereof upon each of the other parties and shall file a copy with the Regional
Director. As further provided in said Section 33, should any party desire
permission to argue orally before the Board, request therefor must be made in
writing within ten (10) clays from the date of the order transferring the case
to the Board.
CIIARLES E. PERSONS,
Ti ill Exwnuner.
Dated January 8, 1944.
21 See footnote 9, supra.