Mac Smith Garment Co., Inc.

National Labor Relations Board - Board Decisions

Nov 18, 1953

107 N.L.R.B. 84 (N.L.R.B. 1953)

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the stage of completion of products being made for them. Their
work requires them to move continually throughout the plant. We
find that the order tracer and his assistant are plant clericals
and shall include them in the unit.4
Nurses : The Petitioner contends that the three registered
nurses should be excluded, while the Employer would include
them. The Board has consistently held that nurses have interests
and duties basically different from those of production and main-
tenance personnel. 5 Accordingly, we shall exclude them from
the unit.
Cooperative students: Five university students are employed
as draftsmen in the drafting department, alternating every 3
months between the plant and the university. The record does
not indicate that there is any likelihood that they will become
permanent employees upon graduation . As they are technical
employees and their employment is merely incidental to their
education, we shall exclude them from the unit. 6
Grill employees: The Employer maintains a grill or lunch-
room near the production office . The Petitioner would exclude
the grill employees as not having any community of interest
with the other employees in the proposed unit, while the Em-
ployer would include them. The Employer maintains the grill
solely for the use of its employees. The grill employees have
the same terms and conditions of employmentas the other em-
ployees. We have frequently foundthatthe interests of cafeteria
employees are not so dissimilar to those of production and
maintenance employees as to preclude their inclusion with the
latter. We shall therefore include the grill employees in the unit.?
We find that all production and maintenance employees at the
Employer's Hartsville, South Carolina, plant, including lacquer,
paint -pigment, and sonolite operators , order tracer, order
tracer assistant , and grill employees , but excluding office and
clerical employees , mail carrier , nurses , cooperative students,
and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
4Clarostat Mfg. Co., Inc., 105 NLRB 20.
5W F & John Barnes Company, 96 NLRB 1136.
6 National Cash Register Company, 95 NLRB 27.
7 Taunton Pearl Works, 89 NLRB 1382.
MAC SMITH GARMENT COMPANY, INC. and AMALGAMATED
CLOTHING WORKERS OF AMERICA, CIO. Case No. 15-CA-
481. November 18, 1953
DECISION AND ORDER
On June 15, 1953, Trial Examiner David London issued his
Intermediate Report in the above - entitled proceeding , finding
107 NLRB No. 27.
MAC SMITH GARMENT COMPANY, INC. 85
that the Respondent had engaged in and was engaging in cer-
tain unfair labor practices, and recommending that it cease
and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached here-
to. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the
complaint and recommended dismissal of those allegations.
Thereafter, the Respondent filed exceptions to the Intermedi-
ate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Ex-
aminer at the hearing 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 the case, ' and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner,
with the exceptions, modifications, and additions noted below.
We agree with the Trial Examiner that the Respondent, in
violation of Section 8 (a) (1) of the Act, discharged Hillman,
Tillman, and Lovander Ladner for engaging in protected con-
certed activity to secure a wage increase, 2 and not for engaging
in a deliberate slowdown to achieve this objective. A considera-
tion of all the facts and circumstances disclosed by the rec-
ord,' including the absence of any credible testimony of any
prearranged or predetermined plan of the employees to re-
duce production, persuades us to find, contrary to the Respond-
ent's contention, that the employees did not resort to a delib-
erate showdown to enforce their demands. 4
We also agree with the Trial Examiner that the employees
named in the Intermediate Report walked out inprotest against
the unlawful discharges of the three Ladners and thereby be-
came unfair labor practice strikers entitled to reinstatement
on their unconditional application to return to work, regard-
less of their replacement. As the Respondent failed to rein-
state these employees on August 5, 1952, when they uncondi-
IAs the record, exceptions , and brief adequately present the issues and positions of the
parties, the Respondent's request for oral argument is hereby denied.
t Gullett Gin Company, Inc. v. N. L. R. B., 179 F. 2d 499 (C. A. 5), enfg. as modified
83 NLRB 1; N. L. R B. v. Kennametal, Inc., 182 F. 2d 817 (C. A 3), enfg. 80 NLRB 1481.
3 We do not give as much weight to the production records for the week ending August 2
as did the Trial Examiner, but regard them only as one factor to be considered. We note
that the production records include the work of 23-25 employees who were hired on Friday,
August 1, to replace the 3 Ladners and the 16 strikers Although the evidence does not show
whether the replacements started to work the day they were hired or whether they were
experienced, 40 cutting department employees, including the replacements, worked on Satur-
day, August 2, ordinarily a nonwork day. The Saturday production was included in the weekly
figures in question. We also note that the production figures vary from week to week, depend-
ing upon the type material being cut.
4At the hearing the Trial Examiner reserved ruling as to whether to receive in evidence
an affidavit of J. C. Necaise, a witness for the General Counsel. It is apparent from the
Trial Examiner's findings that he rejected this evidence or, at least, attached no weight to
the affidavit. As Necaise disavowed the truth of the contents of the affidavit and testified
that he was unable to read and that the affidavit was not read to him, we, too, are unable
to give the affidavit any probative weight.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tionally applied for their jobs, the Respondent violated Section
8 (a) (1) of the Act.
Having found above that the Respondent violated Section 8
(a) (1) of the Act, we deem it unnecessary to determine
whether its conduct also constituted a violation of Section 8 (a)
(3). We further find that the remedy of a reinstatement and back
pay recommended by the Trial Examiner will effectuate the
purposes of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section
.10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re spond-
ent, Mac Smith Garment Company, Inc., Gulfport, Mississippi,
its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or refusing to reinstate any of its em-
ployees because they engaged in concerted activities for their
mutual aid or protection.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-orga-
nization, to form , join, or assist labor organizations , to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection , or to refrain
from any and all of such activities except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment 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) Offer Hillman Ladner, Tillman Ladner, Lovander Ladner,
Ezell Necaise , and Roy Anderson immediate and full re-
instatement to their former or substantially equivalent posi-
tions , without prejudice to their seniority or other rights and
privileges and make each of them whole for any loss of pay
each may have suffered by reason of discrimination against
them, by payment to each of them of a sum of money equal to
the amount determined in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
(b) Make the following named employees whole for any
loss of pay each may have suffered by reason of the discrimi-
nation against them, by payment to each of them of a sum of
money equal to the amount determined in the manner set forth
in the section of the Intermediate Report entitled "The
Remedy": Wilfred Anderson, Earnest Ladner, Everett Ladner,
Laurence Necaise, Ruben Descheamp, Leroy Cuevas, T. V.
Hickman, Joseph Necaise, Edward Collins, Clinton Dedeaus,
Paul Giadrosich, Clifton Saucier, John W. Estapa.
(c) Upon request, make available to the National Labor
Relations Board or its agents , for examination and copying,
MAC SMITH GARMENT COMPANY. INC. 87
all payroll records, social-security payment records, time
cards, personnel records and reports, and all other records
necessary to analyze and compute the amount of back pay due
under the terms of this order.
(d) Post at its plant in Gulfport, Mississippi, copies of the
notice attached hereto as an appendix.5 Copies of said notice,
to be furnished by the Regional Director for the Fifteenth Re-
gion, shall, after being duly signed by the Respondent, be
posted by it 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 said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for the Fifteenth Region,
in writing, within ten (10) days from the date of this Order, as
to what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges that the Respondent interrogated or
threatened its employees in violation of Section 8 (a) (1) of
the Act.
s In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order," the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Re-
lations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees:
WE WILL NOT discharge or refuse to reinstate any of
our employees because they engage in concerted activities
for their mutual aid or protection.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to self-organization, to form, join or assist labor
organizations, to bargain collectively through representa-
tives 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 and all
of such activitie s except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the National Labor Relations Act.
WE WILL OFFER to the following employees immediate
and full reinstatement to their former or substantially
equivalent positions, without prejudice to any seniority or
other rights and privileges previously enjoyed, and make
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them whole for any loss of pay suffered as a result of the
discrimination.
Hillman Ladner Ezell Necaise
Tillman Ladner Roy Anderson
Lovander Ladner
WE WILL make whole
loss of pay suffered as
Wilfred Anderson
Earnest Ladner
Everett Ladner
Laurence Necaise
Rubin Descheamp
Leroy Cuevas
T. V. Hickman
the following employees for any
a result of the discrimination.
Joseph Necaise
Edward Collins
Clinton Dedeaux
Paul Giadrosich
Clifton Saucier
John W. Estapa
MAC SMITH GARMENT COMPANY, INC.,
Employer.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof , and must not be altered , defaced, or covered by any
other material.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by Amalgamated Clothing Workers of America, CIO, hereinafter
called the Union, the General Counsel of the National Labor Relations Board, on October 16,
1952, issued a complaint against Mac Smith Garment Company, Inc., herein called Respond-
ent, alleging that Respondent had engaged in and was engaging in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 61 Stat. 136, herein called the Act. Copies of the charges, complaint, and notice of
hearing were duly served on the appropriate parties.
With respect to the unfair labor practices, the complaint, as amended at the hearing, alle-
ged in substance, that onor aboutJuly 31, 1952, Respondent discharged, and thereafter refused
to reinstate, the 19 employees named in the margin' because they engaged in concerted activ-
ity with each other and with other employees for the purposes of collective bargaining and
other mutual aid and protection. The complaint further alleged that Respondent also, on or
about July 30 1952,2 by its officers, agents, representatives, and employees, permitted, au-
thorized , instigated , or acquiesced in the interrogation of its employees about their concerted
activities and threatening employees with discharge if they chose to participate in any strike
or other concerted activity. By its answer, Respondent denied that it discharged the employ-
ees listed in footnote 1 except for Hillman Ladner, Tillman Ladner and Lovander Ladner,
hereinafter referred to as Hillman, Tillman, and Lovander, respectively, and alleged that the
remainder of said employees voluntarily gave up their jobs and thereby terminated their em-
ployment. With reference to Hillman, Tillman, and Lovander, Respondent pleaded that said
'Roy Anderson, W. L. Anderson, Edward Collins, Leroy Cuevas, Clinton Dedeaux, Ruben
Descheamp, John W. Estapa, Paul Giadrosich, T. V. Hickman, Earnest Ladner , Everett
Ladner, Hillman Ladner, Lovander Ladner, Tillman Ladner (referred to in the complaint
and answer as Tilmon Ladner), Ezell Necaise, Joseph Necaise, Laurence Necaise, and
Clifton Saucier. The complaint also included Laverne Garriga as one of the alleged discrimi-
natees . At the hearing, however, the allegations pertaining to him were dismissed on motion
of Respondent and without objection by the General Counsel.
=Unless otherwise specified, all references to dates herein are to the year 1952.
MAC SMITH GARMENT COMPANY, INC. 89
employees were discharged because they refused to perform their assigned work and at-
tempted to take unauthorized control of Respondent's plant. Respondent further pleaded that it
offered reemployment to all of the employees named in footnote 1 except Ray Anderson and
the three Ladners aforementioned, and that the reason that Anderson has not been reem-
ployed was that there has been no need for the services he was performing prior to the time
he voluntarily left his employment.
Pursuant to notice, a hearing was held January 19-20, 1953, at Gulfport, Mississippi,
before the undersigned Trial Examiner. All parties appeared and were represented by
counsel or other representative, were afforded full opportunity to be heard, to examine and
cross-examine witnesses, to argue orally at the conclusion of the evidence, and to file
briefs. The General Counsel and the Respondent argued the case orally and have also filed
briefs which have been duly considered. Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Mac Smith Garment Company, Inc., is a subsidiary of Harris-Smith, Inc., New York, New
York, and is a corporation duly organized and existing under the laws of the State of Missis-
sippi with its office and factory located in Gulfport, Mississippi. During all times material
herein, it has been and is now engaged in the manufacture of men's dress and sport shirts.
In the course and conduct of its business during the year ending August 30, 1952, Respondent
purchased raw materials consisting principally of cotton piece goods, thread, buttons, boxes,
and cartons, valued in excess of $ 75,000 approximately 95 percent of which was purchased
outside the State of Mississippi and shipped in interstate commerce to the Gulfport plant.
During the same period, Respondent manufactured and sold finished products consisting of
men's cotton dress and sport shirts valued in excess of $ 300,000, approximately 95 percent
of which was shipped and sold to customers outside the State of Mississippi. Respondent
admits, and I find, that it is engaged in commerce within the meaning of Section 2 (6) of the
Act.
IL THE CHARGING LABOR ORGANIZATION
Amalgamated Clothing Workers of America, CIO, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The sequence of events
In July 1952, the period with which we are concerned, Respondent's operation were car-
ried on by approximately 600 employees divided into 5 departments: cutting, sewing, pres-
sing, boxing, and shipping. The alleged discriminatees were employed in the cutting de-
partment, most of them as spreaders, an operation hereinafter described in greater detail.
The record fails to establish that these employees, or any others in the factory, were
organized or had any collective-bargaining representative, and it was the position of the
General Counsel that the activities for which Respondent imposed its retribution were con-
certed activities as distinguished from activities In behalf, or in support, of a union.
Respondent's workday began at 7:30 a. m. and ended at 4 p. m. At 7:25 a "first whistle"
was blown, followed by another at 7:30, at which time employees were expected to be at their
posts. For a long time it had been the custom for a number of employees who arrived at the
plant between 7 and 7:25 a. m. to gather near the plant entrance for the purpose of smoking
cigarettes and to engage in conversation on subjects of mutual interest.
On Wednesday, July 30,3 such a group consisting of approximately 20 employees, some of
whom were cutters, were gathered near the plant entrance. The group began talking about
the "bundle boys upstairs" getting a raise and Hillman, one of the group, was asked to talk
'All references hereafter to Wednesday and 'Iliursday are to July 30, 1952, and July 31,
1952, respectively.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Fred Ulf, Jr., superintendent of the cutting department, about a 10-cent raise. The group
went into the shop at the first whistle, and by 7:30 "everybody was at their jobs." Ulf came
into the factory at about that time and upon passing Hillman was informed by the latter
"that the boys would like to have a word or two with him." Ulf walked to the east end of the
building followed by all the spreaders. Hillman, acting as spokesman, told him that those
gathered were requesting a 10-cent raise. Ulf informed the group that only Mr. Smith,
Respondent's president, had authority to grant such increase and that the latter would be
in Gulfport in September at which time he would be glad to discuss the matter with the men.
Hillman asked Ulf if the latter couldn't get in touch with Smith by telephone and Ulf agreed
to do so and to have some word for the men by 4 p. m. of that day.
At about 1:30 that afternoon, Ulf called the entire cutting department, including spreaders,
cutters , and trimmers , to the east end of the building . He there informed the assembly that
Robert Garner, the plant manager, wanted to address them about their demand for a raise.
Garner repeated that no one in Gulfport had authority to grant the requested raise; that
Smith would be at the plant in September to talk the matter over with the men; that the
spreaders knew when they were hired that their rate of pay was 75 cents an hour and that
"if [they] didn't like it [they] could quit."4 He then asked if there were any questions. Lo-
vander asked why Smith couldn't come to Gulfport immediately and Garner answered that
Smith had five factories in Pennsylvania, offices in New York, and other responsibilities,
all of which prevented him from coming to Gulfport "on a moment's notice." Tillman in-
quired if he could ask a question and not have it interfere with his job, and Garner assured
him he was free to do so. He then asked whether Smith was "too important" to come and
talk to the men and Garner replied that he "most certainly [was] ." Hillman asked why the
bundle boys were getting 80-90 cents an hour while the spreaders were only receiving 75
cents , and Garner merely replied that it was because "the boys [ have] different scales up
there , different rates ." The meeting then broke up and the assembled group returned to
their posts.
On the following morning, Thursday, the usual group gathered near the front entrance
before the first whistle blew. The men discussed their meeting of the previous day with
Garner and talked about striking and agreed if any of them were fired they would all "stick"
together. Roy Anderson informed the group, by then consisting of only 10-12 employees,
that there was nothing they could do about striking that morning because most of the staff
had already entered the plant. The group disbanded and all the men involved herein punched
in several minutes before 7:30 a. m. Fifteen or twenty minutes later, Ulf, though he already
possessed authority to discharge employees, went to Garner and asked if he "had the au-
thority to fire the people who refused to work." Upon receiving an affirmative answer, Ulf
went to the timecard rack and picked up the cards of Lovander, Tillman, and Hillman, wrote
"pay off" across each card. and signed his name. He approached the table at or near which
the 3 men were stationed, handed each of them their card, and told them that they were
fired. Hillman asked why he was being discharged and Ulf answered it was "for being the
ringleader of this bunch of boys." 6 To a similar question by Tillman, Ulf replied that it
was "for asking a question." 6
The discharges took place in the presence of other employees. A number of them, in-
cluding Giadrosich, Anderson, and Ezell Necaise told Ulf that it wasn't right, or fair, to
fire the three men. Ulf answered : "I have my orders to do that. If you don't like it, get your
god damn cards and I'll sign them and you can go, too."
All the men named in footnote 1, other than the 3 Ladners already discharged, got their
cards from the time rack, presented them to Ulf for his payoff signature and soon thereafter
received the wages due them. While waiting in the office for their money, one member of the
group asked Garner why they were fired and the latter replied that he didn't know. On Friday,
August 1, Ulf hired 23-25 new employees to replace the 19 whose services were terminated
the day before.
4The last quoted testimony is based on the credited testimony of Hillman, Roy Anderson,
Paul Giadrosich, and J. C. Necaise. Garner admitted that the quoted testimony was, "in
substance," what he told the men.
6Ulf admitted he may have so described Hillman.
6This finding is based on the credited testimony of Hillman. Tillman, and Hollis Ladner.
The latter appeared as a witness for Respondent and otherwise testified in support of Re-
spondent 's defense.
MAC SMITH GARMENT COMPANY, INC. 91
On August 5, all of the alleged discriminatees made an unconditional offer to return to
their jobs. The following named employees were offered reinstatement to substantially
equivalent jobs on the dates set out after their respective names:
Wilfred Anderson
Earnest Ladner
Everett Ladner
Laurence Necaise
Ruben Descheamp
Leroy Cuevas
T. V. Hickman
Joseph Necaise
Edward Collins
Clinton Dedeaux
Paul Giadrosich
Clifton Saucier
John W. Estapa
September 11
September 11
September 11
September 11
September 15
September 18
September 18
September 18
October 14
October 14
October 14
October 14
October 22
Ezell Necaise was offered reinstatement on October 22, but to a job not equivalent to the
one he last held, and paying 10 cents an hour less. He declined the offer. No offer of rein-
statement was ever made to Hillman, Tillman, Lovander, or to Roy Anderson.
B. Concluding Findings
1. The discharge of Hillman, Tillman, and Lovander
The findings heretofore entered with reference to the concerted activities of Wednesday,
when coupled with the reasons assigned by Ulf for the discharge of the three Ladners on
Thursday, establish a prima facie case of discrimination against Respondent in violation
of the Act. Those activities, having as their objective higher wages for the employees in
the cutting department, are "concerted activities for the purpose of ... mutual aid or pro-
tection" and are guaranteed to employees by Section 7 of the Act. Smith Victory Corporation,
90 NLRB,2089. enfd. 190 F. 2d 56 (C. A. 2); N. L. R. B. v. Kennametal, Inc., 182 f. 2d 817
(C. A. 3); Carter Carburetor Corporation v. N. L R. B„ 140 F. 2d 714 (C. A. 8); Ace Handle
Corporation, 100 NLRB 1279.
In that state of the record, and with full recognition that the burden of proof to establish
such discrimination rests on the General Counsel throughout the entire proceeding, it was
incumbent on Respondent to go forward with the evidence in support of its denial that the
three men were discharged for the discriminatory reasons urged by the General Counsel,
but rather that they were discharged because they "conducted a slowdown of the operations
in the cutting room, [seized] control of the Company's property, refus[ed] to work, or permit
the work [of others] to proceed," as pleaded in its answer. Supreme Bedding and Furniture
Mfg. Co., Inc., 93 NLRB 1616, enforcement denied on other groups, 196 F. 2d (C A 5);
Pacific Mills, 91 NLRB 60; Somerset Classics, Inc., 90 NLRB 1675, enforced 193 F. 2d 613
(C. A. 2).
All the men involved in this proceeding were employed in the cutting department which
carries on the first operations in the manufacture of shirts. In that department were at least
2 tables, each approximately 84 yards long and 38 inches wide, on the length of which the
fabrics were placed preparatory to cutting. A headspreader is located at one end of the table
and a "catcher" at the other end. Between these two, and along the sides of each table, are
6-8 spreaders who spread the material to its full dimension preparatory to cutting. About 40
sheets of material can be spread in an hour and a complete operation varies in depth from
100 to 300 ply depending on the texture of the fabric. On the 2 days in question, Hillman was
a "catcher," Lovander a spreader at the side of one table, and Tillman was engaged as a
bundle boy to bundle the materials after they were cut.
A great deal of conclusory testimony was offered by both sides dealing with the work per-
formance of the three Ladners and the entire cutting department on Wednesday, and for the
very brief period Thursday morning preceding the three discharges. Thus, a number of
witnesses for the General Counsel testified that the work of all the people involved was
being carried on "as usual." For Respondent, there was the testimony of a number of wit-
9 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nesses that there wasn't "any," or "very little, work done" by either the three men, or the
department as a whole, following the meeting of Wednesday morning. No useful purpose
would be served by a detailed recital of that evidence. Any attempt to reconcile that conflict
exclusively on the cold record just alluded to would leave serious doubt in the mind of any
conscientious trier of fact as to the verity of his conclusion.
Unfortunately, Respondent kept no accurate daily production records which would definitely
establish whether or not there was in fact a deliberate work stoppage or slowdown on Wednes-
day as claimed by Respondent. However, the weekly production records which the Company
maintained, and which were read into the record, establish that 2,975 dozen shirts were cut
during the week ending August 2 as compared to 2,742 dozen cut the week before. In suc-
ceeding weeks, however, the production of the week ending August 2 was exceeded, though
with a larger staff. Nevertheless, the work performance for the week ending August 2, as
compared with that of the next prior week, is significant. During practically all of Thursday,
July 31, the cutting department was operating with less than half of its normal complement
of 37 workers. Among the absentees were 3 cutters without whose services the production
of the entire department would be most seriously impaired and curtailed. In this connection,
It will also be recalled that though the replacements for the 19 men were hired on Friday,
August 1, the evidence does not disclose the time of the day they were hired, whether they
reported for work that day or later, or whether they were experienced or unexperienced. If,
therefore, practically no work was done on Wednesday as Respondent claims, and production
was seriously curtailed as above described at least on Thursday, it would seem to have been
almost impossible for the department to have cut 2,975 dozen shirts during that week, unless
the testimony of the General Counsel's witnesses to the effect that production on Wednesday
was approximately normal, and that there was no deliberate slowdown or stoppage, is
credited. T
Admittedly, some time was lost by the meetings with management on Wednesday. Realis-
tically, too, it must be assumed that there was some disruption of work as other employees
became aware of the purpose and outcome of these meetings. The record, however, will not
permit me to attribute such disruption to the three Ladners who were discharged, except
insofar as they were responsible for the call of the meetings. Furthermore, though I am
convinced that there was more talking by all the employees in the cutting room on Wednesday
and Thursday than was customary, and that perhaps there were more than the usual number
of visits to the washroom on Wednesday, I find that these privileges, which Respondent
granted to its employees, were not abused by the three men discharged. As Garner testified,
Respondent "allowed and realized that [following the meetings] there would probably be a
little unrest-and a little confusion."
On the entire record, and my observation of the demeanor and appearance of the witnesses
at the hearing, I find that there was no deliberate slowdown or work stoppage in the cutting
department on Wednesday or Thursday up to the time the three Ladners were discharged;
that Hillman, Tillman, and Lovander performed their work in substantially the same manner
on Wednesday and Thursday as they had prior thereto; that they were not discharged because
they "refused to perform their assigned work, ...[or] attempted to take unauthorized con-
trol of the plant and thereby unlawfully prevent Respondent from using its property in the
manufacture of its product," as pleaded in the answer. On the contrary, I find that they were
discharged because they were the "ringleaders" in the concerted activities of Wednesday,
the purpose of which was to get increased wages for the employees in the cutting department.
By making these discharges, Respondent violated Section 8 (a) (1) and (3) of the Act.
2. The remaining discriminatees
Having concluded that Respondent violated the Act by discharging the three Ladners, it
follows that when the other alleged discriminatees walked out in protest against such dis-
charges they became unfair labor practice strikers. As such, they are entitled to rein-
statement when they made their unconditional offer to return to work on August 5, notwith-
standing the hiring of replacements on August 1. N. L. R. B. v. Mackay Radio and Telegraph
Co., 304 U. S. 333; Olin Industries v. N. L. R. B., 191 F. 2d 613 (C. A. 5); N. L. R. B. v.
TMoran, the headspreader, appearing as a witness for Respondent, also testified that on
Wednesday the operations "went along pretty good; not the best ... it went along very
well.'
MAC SMITH GARMENT COMPANY, INC, 93
Remington Rand, Inc. , 130 F. 2d 912 (C. A. 2). By refusing to accept that offer on August 5,
Respondent violated Section 8 (a) (1) and (3) of the Act.
Though offers of reinstatement were made by Respondent to practically all the strikers
after August 5 as will more fully appear in a following section of this report entitled "The
Remedy ," no such offer was ever made to Roy Anderson . In its answer, Respondent pleaded
that its refusal to reinstate him was because "there has not yet been need for the services
he was performing prior to his voluntarily quitting his job." The record does not sustain
that allegation . Indeed, Respondent 's own testimony establishes that 23-25 new replacements
for the cutting department were hired on August 1 and presumable are still in Respondent's
employ.
3 Alleged interrogation of, and threats to , employees
On the entire record, and my observation of the witnesses , I find that the General Counsel
has not sustained the burden of proving by a preponderance of the evidence that Respondent
interrogated its employees "about their and other employees ' concerted activities ," or that
it threatened its "employees with discharge if they chose to participate in a strike or other
concerted activity. " Accordingly , it will be recommended that those allegations of the com-
plaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent , set forth in section III, above occurring in connection with
the operations of Respondent described in section I, above, have a close, intimate , and sub-
stantial 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.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , I will recommend that
it cease and desist therefrom and take certain affirmative action which will effectuate the
policies of the Act.
It having been found that Respondent discriminatorily discharged Hillman Ladner, Tillman
Ladner, and Lovander Ladner on July 31,1952 , and denied reinstatement to Roy Anderson on
August 5, 1952, it will be recommended that Respondent offer each of them immediate and
full reinstatement to his former or substantially equivalent position without prejudice to his
seniority or other rights and privileges , and make each of them whole for any loss of pay he
may have suffered by reason of Respondent 's discrimination against them by the payment to
each of a sum of money equal to that which he would normally have earned as wages from
the date of the discrimination against him to the date of offer of reinstatement , less his net
earnings during that period.
With respect to the following named employees who were discriminated against on August
5 by a denial of their unconditional request for reinstatement on that day , but who were sub-
sequently offered reinstatement , it will be recommended that they be made whole for any
loss of pay they may have suffered from August 5, 1952, to the date set out after their re-
spective names:
Wilfred Anderson September 11, 1952
Earnest Ladner September 11, 1952
Everett Ladner September 11, 1952
Laurence Necaise September 11, 1952
Rueben Descheamp September 15, 1952
Leroy Cuevas September 18, 1952
T. V. Hickman September 18, 1952
Joseph Necaise September 18, 1952
Edward Collins October 14, 1952
Clinton Dedeaux October 14, 1952
Paul Giadrosich October 14, 1952
Clifton Saucier October 14, 1952
John W. Estapa October 22, 1952
337593 0 - 55 - 8
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to Ezell Necaise who was offered employment on October 22, but to a job not
equivalent to the one he held when he went on strike and paying 10 cents an hour less, it will
be recommended that Respondent offer him immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights and priv-
ileges, and make him whole for any loss of pay he may have suffered by reason of Respondent's
discrimination against him by payment to him of a sum of money equal to that which he would
normally have earned as wages from August 5, 1952, to the date of offer of reinstatement,
less his net earnings during that period.
All computation of back pay shall be made in accordance with the rules and methods laid
down by the Board in Crossett Lumber Company, 8 NLRB 440, and F. W. Woolworth Company,
90 NLRB 289.
Because of Respondent's unlawful conduct as heretofore found, and its underlying purpose,
I am convinced that the unfair labor practices found are persuasively related to the other
unfair labor practices proscribed by the Act and that the danger of their commission in the
future is to be anticipated from the course of Respondent's conduct in the past. The preven-
tive purpose of the Aot will be forwarded unless the recommendations are coextensive with
the threat. In order, therefore, to make effective the interdependent guarantees of Section 7,
to prevent a recurrence of unfair labor practices, and to minimize strife which burdens and
obstructs commerce, and thus to effectuate the policies of the Act, it will be recommended
that Respondent cease and desist from in any manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. By discharging Hillman Ladner, Lovander Ladner, and Tillman Ladner, on July 31,
1952, Respondent violated Section 8 (a) (1) and 8 (a) (3) of the Act.
2. The strike of July 31, 1952, was caused and prolonged by Respondent's unfair labor
practices.
3. By refusing, on August 5, 1952, to reinstate Roy Anderson, W. L. Anderson, Edward
Collins, Leroy Cuevas, Clinton Dedeaux, Ruben Descheamp, JohnW. Estapa, Paul Giadrosich,
T. V. Hickman, Earnest Ladner, Everett Ladner, Ezell Necaise, Joseph Necaise, Laurence
Necaise, and Clifton Saucier, Respondent violated Section 8 (a) (1) and 8 (a) (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the meaning of
Section 2 (6) and (7) of the Act.
5. Respondent has not interrogated or threatened its employees in violation of Section 8
(a) (1) of the Act.
[Recommendations omitted from publication.]
METAL PRODUCTS CORPORATION and UNITED STEEL
WORKERS OF AMERICA, CIO, Petitioner . Case No. 10-
RC-2412. November 18, 1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Karl W.
Filter, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
The Employer's motion to dismiss the petition on the
ground that the Employer did not receive affirmative evidence
of the Petitoner's compliance with Section 9 of the Act is
107 NLRB No. 33.