The Rivoli Mills, Inc,.

National Labor Relations Board - Board Decisions

Apr 17, 1953

104 N.L.R.B. 169 (N.L.R.B. 1953)

THE RIVOLI MILLS, INC. 169
2. By interfering with, interrogating , restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent Company has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within
the meaning of Section 2 (6) and (7) of the Act.
4. The Respondent did not violate the provisions of Section 8 (a) (3) of the Act in discharging
Edwin K . Kaiser from its employ on March 4, 1952.
[ Recommendations omitted from publication]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL NOT in any manner interfere with, restrain , or coerce our employees in
the exercise of their right to self-organization , to join or assist any labor organization,
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 , and to refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3) of the Act.
All our -employees are free to become or remain members of any labor organization We
will not discriminate in regard to hire or tenure of employment or any term or condition of
employment against any employee because of membership in or activity on behalf of any such
labor organization.
WESTERN TEXTILE PRODUCTS COMPANY OF TENNESSEE,
Employer.
Dated ................................... By ...........................................................................
(Representative) (Title)
This notice must remain posted for 60 day§ from the date hereof , and must not be altered,
defaced, or coverer by any other material
THE RIVOLI MILLS, INC. and INTERNATIONAL LADIES'
GARMENT WORKERS' UNION, A. F. of L., PETITIONER
THE RIVOLI MILLS, INC. and INTERNATIONAL LADIES'
GARMENT WORKERS' UNION, A. F. of L. Cases Nos.
10-RC-1568 and 10-CA-1386. April 17, 1953
DECISION AND ORDER
On December 31, 1952, Trial Examiner Alba B. Martin
issued his Intermediate Report and Report on Challenged
Ballots 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 Intermediate Report and Report on Challenged
Ballots attached hereto. In the same report, the Trial Examiner
also recommended disposition of the challenged ballots cast in
the representation election. Thereafter, the Respondent filed
exceptions to the Intermediate Report and Report on Challenged
Ballots and a brief in support thereof.
104 NLRB No. 27.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board' has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report and Report on Challenged
Ballots, the exceptions, the brief, and the entire record in the
case,2 and hereby adopts the findings,: conclusions, and recom-
mendations of the Trial Examiner with the following modifica-
tions.4
The Trial Examiner recommended that Tilley receive back
pay from August 24, 1951, Clark from September 24, 1951, and
the strikers from October 17, 1951. The Respondent contends
that Tilley and Clark were strikers, and that the Trial Examiner
therefore improperly directed back pay to them during the
period when they were on strike. We do not agree with this con-
tention.
When an employee has been discriminatorily laid off or dis-
charged, the Board awards him back pay from the date of
layoff or discharge, which is when a violation of the Act occurs.
However, when an employee strikes, no violation occurs until
the striker unconditionally applies for reinstatement and the
employer wrongfully refuses to comply with the request. In that
case, the employer violates the Act by refusing to reinstate.
Back pay is therefore awarded onlyfromthe date of application
for reinstatement.
Tilley and Clark were not strikers, but discriminatorily laid-
off or discharged employees. They are therefore entitled to
back pay from the date of layoff or discharge. In Tilley's case,
we shall make certain changes in the Trial Examiner's recom-
mendations. Tilley returned to work on September 24, 1951, and
on the same day joined in the strike in protest against Clark's
discharge. As a striker after September 24 she was entitled only
to the same back pay as other strikers. Accordingly, she will
receive back pay from August 23, 1951, the date of her layoff,
to September 24, 1951, and from October 17, 1951, to the date
of the Respondent's offer of reinstatement.
The Respondent also contends that the Trial Examiner im-
properly recommended reinstatement to strikers who had en-
gaged in acts of violence. There is no evidence of violence by
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three -member panel [ Chairman Herzog and Members
Houston and Murdock].
z The Respondent has requested oral argument . The request is denied , inasmuch as the rec-
ord and brief adequately set forth the issues and the positions of the parties.
:The Intermediate Report contains the following minor errors in the recital of facts, which
are corrected as follows - On page 177 of the report is the statement that "During the morning
of August 23, 1951 , Tilleyranoutofthe color of the material she was using .. " This should
read: "During the morning of August 23, 1951 , Tilley ran out of the collars for the jackets she
was working on ..
On page 181 of the Intermediate Report , the sentence reading , "Clock punched out at 7:11
o'clock," should read , "Clark punched out at 7:11 o'clock."
4In adopting the Trial Examiner's findings , we have accepted his resolutions of credibility
in accordance with Board practice . Standard Dry Wall Products , Inc , 91 NLRB 544 , enfd. 188
F. 2d 262 (C.A. 3); N. L. R. B. v. Swinerton and Walberg Company, 202 F. 2d 511 (C. A. 9).
5 The Trial Examiner incorrectly lists August 24, 1951, as the date from which Tilley's
back pay is to commence.
THE RIVOLI MILLS, INC. 171
any of the employees ordered reinstated. Superintendent Cofer
did testify that a day or two after the start of the second strike,
he went to the home of employee Camille Zolla to bring her to
work. He found a group of persons, including strikers Imogene
Parsons, Ruth Crabtree, and Gertrude Guffee, outside Zolla's
home threatening her. According to Cofer, Parsons said, "If
you go out we are going to knock your window lights out."
Somebody else said, "We might even burn your house down.
You don't want to get killed do you." Cofer did not identify the
individual who made this latter threat. Zolla did not go to work
that day because, she said, "I am afraid they will kill me."
We believe that Parsons' conduct went beyond permissible
bounds, and shall therefore not order reinstatement or back pay
for her.6 Neither shall we direct that her ballot be opened and
counted. As to Crabtree and Guffee, who were also present out-
side Zolla's home, there is no evidence that they threatened
Zolla. In these circumstances, there is no reason for denying
them reinstatement and back pay.?
ORDER
Upon the entire record in the case and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Re-
lations Board hereby orders that the Respondent, The Rivoli
Mills, Inc., Chattanooga, Tennessee, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Ladies' Gar-
ment Workers' Union, A.F. of L., or in any other labor organi-
zation of its employees, by laying off or discharging any of its
employees, or in any other manner discriminating against them
in regard to their hire or tenure of employment, or any term or
condition of employment.
(b) Interrogating its employees concerning their union mem-
bership and activities.
(c) Threatening to discharge employees if they continued
working for the Union.
(d) Threatening to discontinue transferring employees from
one machine to another if the union movement is successful.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist In-
ternational Ladies' Garment Workers' Union, A.F. of L., or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and to refrain from any or all
of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor or-
6N. L. R. B. v. Kelco Corporation, 193 F. 2d 642 (C.A. 4), enforcing as modified 94 NLRB
247; N. L. R. B. v. Deena Artware , Inc., 198 F . 2d645 ( C.A. 6), enforcing as modified 86 NLRB
732 and 95 NLRB 9.
7 H. N. Thayer Company, 99 NLRB 1122.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganization as a condition of employment, as authorized in Sec-
tion 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 to each of the employees, except Imogene Parsons,
listed on Appendix A attached to the Intermediate Report, im-
mediate and full reinstatement to their former or substantially
equivalent positions without prejudice to seniority and other
rights and privileges previously enjoyed.
(b) Make whole each of the employees, except Imogene
Parsons, listed on Appendix A attached to the Intermediate
Report, in the manner provided in that section of the Inter-
mediate Report entitled "The Remedy" as modified herein, for
any loss of pay they may have suffered by reason of the Re-
spondent'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, timecards, personnel records and
reports, and all other records necessaryto analyze the amounts
of back pay due and the right of reinstatement under the terms
of this Order.
(d) Post at its plant in Chattanooga, Tennessee, copies of the
notice attached hereto and marked "Appendix B.9" Copies of
said notice, to be furnished by the Regional Director for the
Tenth Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon
receipt thereof and maintained by it for at least sixty (60) con-
secutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure
that such notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for the Tenth Region, Atlanta,
Georgia, in writing, within ten (10) days from the date of this
Order, of the steps taken to comply herewith.
IT IS FURTHER ORDERED that the challenges to the ballots
of J. R. Jenkins, Eugenia Scroggins, Evelyn Mason, Louise
Ashmore, Chester Garner, Alfred Scott, Bunyon Walker, Celia
Marks, Mary Leola Lea, Mildred Rigsby, Mary Inez Ware,
Willie Fay Barfield, Geneva Garner, Willie Joe Hayes, Erlene
Howard, Margaret Hughes, Imogene McGinnis, Mattie Sheets,
Norma Lee Smiddie, Gertrude Smith, Mary Lou Swafford,
Frances Myers, Ruby Clayton, Bernice Lane, Estelle Sharp,
Alta Trew, Roxie Mae Hilliard, Dolly Duke, Cleo Kendrick,
Thelma Norris, Dolly Scroggins, and Alice Davis be, and they
hereby are, sustained.9
8 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 "Pur-
suant to a Decree of the United States Court of Appeals , Enforcing an Order."
9The employees listed in the above paragraph are all striker-replacements . As the strike
was an unfair labor practice strike , the strikers and not their replacements were eligible to
vote . See Times Square Stores Corporation, 79 NLRB 361, 364.
In its order dated May 5 . 1952, the Board sustained the challenges to the ballots of M. R.
Priest, Joe Heflin, and Myrtle Slaton, and overruled the challenges to the ballots of Irene
Raines and Eula Hamrick.
THE RIVOLI MILLS, INC. 173
IT IS FURTHER ORDERED that the challenges to the ballots
of Frances Avery, Ollie Chambers, Ruth Crabtree, Florine
Fitzgerald , Dorothea Garren, Nellie V. Green, Mary Gunter,
George Hayes, Hazel Judge, Joyce Kendrick, Virgie Mahan,
Ona Mason, Stena Ransom, Virginia Vitatoe, Lena Brock,
Cynthia Chambers, Jewell Cox, Mary Durham, Winnie Lu
Gaither, Lucille Gossett, Gertrude Guffee, Elizabeth Hart,
Dorothy Headrick, Geneva Kelly, Clara Lusk, Ruby A. Martin,
Helen Morgan, Dorothy Poe, Martha Short, James A. Smith,
Edna Vandergriff, Bertha Tilley, Camille Zolla, and Carrie
Pylant be, and they hereby are, overruled.
IT IS FURTHER ORDERED that the Regional Director for the
Tenth Region shall, within ten (10) days from the date of this
order, open and count the ballots the challenges to which have
been overruled , and shall thereafter serve upon the parties a
supplemental tally of ballots, including therein the count of
these ballots.
APPENDIX B
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
that:
WE WILL NOT 'discourage membership in International
Ladies ' Garment Workers' Union , A.F. of L., or in any
other labor organization of our employee, by laying off or
discharging any of our employees, or in any other manner
discriminating against them in regard to their hire or
tenure of employment , or any term or condition of em-
ployment.
WE WILL NOT interrogate our employees concerning
their union membership and activities.
WE WILL NOT threaten to discharge our employees if
they continue working for any labor organization.
WE WILL NOT threaten to discontinue transferring em-
ployees from one machine to another if the union organi-
zation movement is successful.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of the
right to self - organization , to form labor organizations, to
join or assist International Ladies' Garment Workers'
Union, A.F. of L., or any other labor organization , to bar-
gain collectively through representatives of their own
choosing , and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection , and to refrain from any or all of 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 employment , as authorized in Section 8 (a)
(3) of the Act.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to the following employees immediate and
full reinstatement to their former or substantially equiva-
lent positions, without prejudice to any seniority or other
right and privileges previously enjoyed, and make them
whole for any loss of pay suffered as the result of the dis-
crimination against them:
Frances Avery
Mildred L. Carter
Ollie Chambers
Ruth Crabtree
Florine Fitzgerald
Dorothea Garren
Nellie V. Green
Mary Gunter
George Hayes
Hazel Judge-
Joyce Kendrick
Virgie Mahan
Ona Mason
Stena Ransom
Virginia Vitatoe
Lena Brock
Cynthia Chambers
Max Cherny
Jewell Cox
Mary Durham
Winnie Lu Gaither
Lucille Gossett
Gertrude Guffe
Elizabeth Hart
Dorothy Headrick
Geneva Kelly
Clara Lusk
Ruby A. Martin
Helen Morgan
Dorothy Poe
Martha Short
James A. Smith
Edna Vandergriff
Bertha Tilley
Nellie Clark
The Rivoli Mills, 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 and Report On Challenged Ballots
STATEMENT OF THE CASE
Upon a charge filed October 17, 1951 , and a first amended charge filed April 15, 1952, by
International Ladies' Garment Workers' Union, A. F. of L., herein called the Union , the General
Counsel of the National Labor Relations Board , herein called-the General Counsel and the Board,
by the Regional Director for the Tenth Region (Atlanta , Georgia), on April 17, 1952, issued his
complaint against - The Rivoli Mills, Inc., herein called Respondent , alleging that Respondent had
engaged in and was engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as
amended , 61 Stat. 136, herein called the Act. Copies of the charges, complaint , and notice of
hearing were duly served upon the parties.
With respect to the unfair labor practices the complaint alleged in substance that Respondent
discharged Bertha Tilley on or about August 23 , 1951, and discharged Nellie Clark on or about
September 24, 1951, becuase of their union and concerted activities , and that at different dates
in August and September 1951 Respondent interrogated its employees concerning their union
membership , activities, and desires , threatened them with discharge because of their union
membership and activities , and promised them benefits if they would abandon their union ac-
tivities The complaint alleged , further, that Respondent ' s above-alleged activities caused the
employees to cease work concertedly and go on strike from August 24 to September 24, 1951,
THE RIVOLI MILLS, INC. 175
and again on September 24,1951 , and that when and after the employees applied unconditionally
for reinstatement on October 17, 1951 , Respondent refused to reinstate them.
In its answer filed April 22 , 1952 , Respondent admitted the commerce facts alleged in the
complaint and denied the commission of any unfair labor practices.
In a Board-directed I election heldJanuary 11, 1952 , the challenges were sufficient in number
to affect the results of the election . Thereafter , in its order directing hearing on challenged
ballots , dated May 6, 1952 , the Board disposed of some of the challenges and directed that a
hearing be held with respect to certain of the challenges . The Regional Director thereupon
ordered the complaint case and representation case consolidated and pursuant to notice set
the hearing for August 4, 1952
The hearing was held in Chattanooga , Tennessee , from August 4 to August 8, 1952 , before
Alba B . Martin, the undersigned Trial Examiner.
The General Counsel , the Respondent , and the Union were represented by counsel. All
parties participated in the hearing and were afforded opportunity to be heard , to examine and
cross-examine witnesses , and to introduce evidence pertaining to the issues . At the end of the
hearing all parties made oral argument . Respondent filed a brief.
Upon the entire record in the case and from observation of the witnesses, I make the fol-
lowing:
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENT
The Rivoli Mills , Inc., a Tennessee corporation with its principal office, plant , and place of
business at Chattanooga , Tennessee , is engaged in the manufacture and sale of textile products.
During the calendar year 1951 Respondent purchased raw material , equipment, and supplies
valued in excess of $100 ,000, of which more than 75 percent in value was purchased and
shipped to Respondent from outside of Tennessee . During the same period Respondent sold
finished products valued in excess of $ 300,000 , of which more than 75 percent in value was
sold and shipped in interstate commerce to points outside of Tennessee . It is held that Re-
spondent is engaged in commerce within the meaning of the Act.
IL THE ORGANIZATION INVOLVED
International Ladies' Garment Workers ' Union , A. F. of L., is a labor organization within
the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Organizational efforts of the employees , followed by inter-
ference, restraint , and coercion by Respondent , and the
discriminatory layoff of Bertha Tilley
Because of what was described as the increasingly " rugged" working conditions in Re-
spondent' s Chattanooga plant a number of the employees , most of whom were women, began
in early August 1951 to discuss forming a union . Nellie Clark , one of their number , suggested
that they contact the International Ladies ' Garment Workers ' Union, and after they discussed
that suggestion for about a week, she herself called the Chattanooga office of that Union, with
the result that an organizer for that Union , Alice Costello , came to Nellie Clark ' s house and
Clark sent her to the homes of some of the other employees . A number of the employees, in-
cluding Nellie Clark, Bertha Tilley , and Cynthia Chambers, passed out application cards and
attempted to persuade employees to join the Union. Wolfe K . Lefkoff, Respondent ' s president,
came to the water fountain in the plant on about August 17, facing them, as Bertha Tilley was
talking to Florine Fitzgerald about signing up and as the latter laid one of the cards upon a
machine nearby . By August 24, some 60 of Respondent ' s approximately 80 to 90 production
employees had joined the Union.
This was not the first self-organizational effort among the employees nor the first assis-
tance offered by the Union . Movements were started some five previous times and assisted
twice by Alice Costello . Lefkoff testified that he never thought the previous activity represented
serious efforts to organize the employees , and that when he first heard of the organizational
efforts in 1951 , he thought that " it is just another one of those little needle-pricks that they
110- RC- 1568. Decision and Direction of Election dated December 13, 1951 ( not reported in
printed volumes of Board decisions). '
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are always doing." Although on August 15, 1951, Alice Costello and two other representatives
of the Union had called upon Lefkoff in his office and requested him to recognize and bargain
with the Union, Lefkoff testified, in effect, that the first time he realized there was any union
activity among his employees was on about August 20 when he called to his office employee
Cynthia Chambers to ask her why she was going from machine to machine talking with the girls
and she replied she was trying to organize a union. It does not appear likely that in 5 days the
president of Respondent corporation would have forgotten the Union's assertion of interest and
and implied majority claim. Indeed, on August 15 Lefkoff told the union committee that he would
not talk with them, that they should see his attorney; and after the visit he contacted his
lawyers,2and had them compose a letter to his employees.
According to the credible and credited testimony of Cynthia Chambers, Lefkoff summoned her
to his office early on the morning of August 20 and told her he understood she was a ring-
leader in the Union, that he understood she had been having cards signed on his time and
property, that he had discussed the matter with his lawyer, and that if she continued to do so
he could fire her. Chambers admitted getting cards signed, but stated she was doing so on her
own time. Lefkoff then asked her why she wanted a union, and when she told him, asked why
she hadn't come to him with her complaints before. In concluding Lefkoff told her, in effect,
that if she continued working for the Union he would discharge her. It is held that Lefkoff's
statements to his employee were calculated to evoke from her answers relating to her union
activities, and as such they interfered with, restrained, and coerced employees in the rights
protected in Section 7 of the Act, Respondent thereby violating Section 8 (a) (1) of the Act. It is
held further that Lefkoff's threat to discharge Chambers if she continued to work for the
Union constituted interference, restraint, and coercion of employees in the rights protected
in Section 7 of the Act, Respondent thereby violating Section 8 (a) (1) of the Act.
The next day, August 21, 1951, Lefkoff asked two of his employees, Imogene Parsons at her
place of work and Virginia Vitatoe as she was awaiting a ride home outside the plant , if they
had signed union cards, and when they evaded his question he told them he knew they had by
the answers they gave. In testifying Lefkoff admitted these interrogations and stated he was
joking with the girls. In the context of all the facts in the case, it is held that he was not joking
and that these interrogations violated the rights mentioned above and violated Section 8 (a) (1)
of the Act.
On August 22, 1951, as the employees were leaving the plant at the end of the workday,
Lefkoff personally passed out to them mimeographed copies of the letter his attorneys had
composed at his request. Lefkoff testified that he was prompted to put out this letter because
he had seen Cynthia Chambers talking to the girls •' and I suspected she wanted to get them to
join the. union. So I put out that letter after I talked to her." He did this even though, as he
testified, he concluded upon talking with Cynthia Chambers that this effort to organize the em-
ployees was just another "needle-prick." This letter stated that Lefkoff had recently been
approached by a committee of a labor union who had claimed the Union represented a majority
of the employees for collective- bargaining purposes ; that Lefkoff doubted this claim; that the
matter could be settled by an election; that they should stop and consider their pleasant re-
lations with the Company, their best wages the Company could afford, that they were provided
work when times were slack, and other benefits of the existing relationship; that the Company
recognized the right to join a union but that "union or non-union membership will have nothing
to do with your job with this company." The letter concluded:
You must decide what you feel is best for you and your family. You know what to expect
from the Company. You do not have to rely on promises as you do with the Union. This
is a free country. You can do as you please. If any of you want to talk to me, I shall be
glad to see you as I have always been in the past. We want you to be happy and we feel that
you can bargain for your own interests just as successfully as any union can.
The statements in this letter were views, arguments, or opinions protected under Section 8 (c)
of the Act. It is clear that he put it out, however, because he considered the organizational
efforts a serious threat and not an incidental "needle-prick," as he testified. His interroga-
tion of Chambers, Parsons, and Vitatoe, and his threat to Chambers, indicate that he intended
to learn who among the employees was behind the organizing drive, and to put a stop to it.
Although Lefkoff s explanations for many of his actions brought out in the case were at
variance with the testimony of other witnesses, because of its improbabilities and self contra-
dictions, I am unable to credit his testimony except where there is substantial corroborating
evidence.
2 Different lawyers from his counsel at the hearing.
THE RIVOLI MILLS. INC. 177
Several days before the strike of August 24, Kittie Lou Smiddie , a forelady , stipulated by
counsel to be a supervisor , realized something was happening among the employees , and ac-
cording to the credited testimony of Nellie Clark she engaged Clark in conversation with the
inquiry: "What is that I hear about you girls getting a union ? " It is held that this interrogation
occurred during the next to last week in August , and that , considered with the other violations
of that week , it amounted to illegal interrogation and violation of Section 8 (a) (1) of the Act.
Several days before the strike of August 24, Kittie Lou Smiddie told Hazel Judge, an em-
ployee , that she "hated to see the union come in because whenever it come in you couldn't
change on the machines then" and that when anyone was caught up with her work she would
have to go home . The expression of these thoughts amounted to a threat that if the Union were
successful in organizing the employees the penalty would be no transfers from one machine to
another and more layoffs for lack of work . This amounted to interference , restraint, and
coercion in violation of Section 8 (a) (1), and was a correct prognostication of the lot which
was to befall Bertha Tilley.
Bertha Tilley , aged 62, worked for Respondent for nearly 4 years, principally on several
types of serger machines , and somewhat on a tacker machine. She was an average employee
whose quality ana quantity of work had never been adversely criticised by management. She
joined the Union about August 1 , 1951 , and thereafter freely and outspokenly and loudly ex-
pressed her opinions in favor of the Union wherever she was. She passed out union member-
ship cards and attempted to persuade employees to sign them , including one employee in the
presence of Lefkoff.
During the morning of August 23, 1951, Tilley ran out of the color of the material she was
using , and as she waited for someone to bring her more Lefkoff walked by her machine where
she was sitting and asked her what she was doing. She told him she had run out of material
and he went on. Soon her supervisor , Kittie Lou Smiddie , asked her what she was doing, and
she replied that she was out of material and Carrie Pylant had gone to bring her more . In fact
there was no more of the proper color of the material , which Smiddie knew Smiddie told
Tilley there was nothing more for her to do and that she would have to go home . When Tilley
asked her why, Smiddie replied , according to the credited testimony of Tilley , a credible wit-
ness, "The Union will not allow you to change from one machine to another ." Tilley replied
that they did not have a union yet, and that there was plenty of work for her on a machine she
had previously run, a serger Smiddiethensaidthat Tilley should see Fred Cofer , the superin-
tendent . This she did , and Cofer ' s reply toher was that the Union would not allow her to change
from one machine to the other Tilley then went to Lefkoff and asked him why he was laying
her off when there were plenty of "shoulders there and that was my operation ." Lefkoff re-
plied that he not doing it. Tilley answered that Smiddie and Cofer had told her to go home.
Lefkoff replied that whatever Smiddie and Cofer said "goes." He added that he did not have
time to talk with her, and walked away. On the way out Tilley related her predicament to a
number of the other employees in the restroom , whose impulse was to strike immediately
unless Respondent give more work to Tilley . The latter cautioned against this, and said she
would take the matter up with an organizer . A few moments later , when Tilley was outside
the building , she asked another employee to askSmiddie to step out and talk with her . Smiddie
came. Tilley told her what Lefkoff had said , and Smiddie replied . " Tilley , don't jump on me.
I have to do as I was told . It is all because of this damn union. I wish I had never heard of it."
The following day, August 24, 1951 , Alice Costello and two other representatives of the Union
called at Lefkoff' s office with Tilley and asked him to return Tilley to work As to what oc-
curred at this meeting the record has the benefit of only Lefkoff` s testimony and the testimony
of Tilley that Lefkoff refused to reinstate her. Lefkoff testified at first that he did not agree
to reinstate Tilley, that he told the union representatives to see his attorney, Mr. Noon, "who
looks after these things for me." When Costello asked to use his phone to call Noon , Lefkoff
granted the request but warned her that he was going to record the conversation which he
did. On the witness stand Lefkoff explained that he records telephone conversations "for my
own benefit and for my attorney ' s benefit " Responding to a question by the Union ' s attorney,
Lefkoff testified that he did not "think" that he made any effort that morning to find out if
there was any work on which Tilley could be placed . At this point he changed his previous
testimony and said that he did agree to put Tilley back to work "when I had the work " When
the representatives asked him to go out into the mill and tell the girls he would return Tilley
to work he replied,
I can' t take any orders from you, because I haven't been officially notified that you are
the representative of my girls, who have not had an election . You tell me you are from the
ILGWU, maybe you are , but so far as I know you are not our duly authorized elected
representative of our employees . Ihave never been notified by the government or in writing
or verbally by anybody that the ILGWU represents my employees , and I am not going out
there and tell them anything
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He added that he told them,
.......it wasn' t my business to go out and tell the girls what they wanted me to tell them,
I wasn ' t working for them.
A short time later that day, August 24, by prearrangement if Tilley was not reinstated,
some 25 of Respondent's employees left their machines and the mill and went on strike As
another group was walking towards the door Lefkoff came up and talked to them. He asked
why they were going out and received the reply that they were going out because of his dis-
charge and refusal to reinstate Bertha Tilley One of the employees told him that if he would
put Tilley back to work, they would return to work. Three credible witnesses testified that
Lefkoff said he "had" someone at the union meeting several nights before and that he knew
who was there and what was said and done, two of these witnesses credibly testified also that
Lefkoff said that neither they nor the Union was telling him how to run his business. Lefkoff
told the group that they were on a wildcat strike, that they had no union and no representative.
Nellie Clark stated that they did have a representative and brought Alice Costello in. When
Lefkoff saw Costello he ordered her off his property and said that he did not have time to be
bothered with her or with the Union.
Respondent's defense of its action concerning Tilley was that Tilley was temporarily laid
off in accordance with its custom of laying off employees for short periods from time to time
when Respondent was temporarily out of the kind of work the given employee was able to
perform . That the custom exists was borne out by the evidence. I am not convinced that the
evidence establishes that there was no work to which Tilley could have been assigned. Neither
Smiddie nor Cofer told her that, even under their statements of the facts. On the stand Cofer
did not recall whether that day he discussed with Smiddie whether or not there was more work
for Tilley On cross-examination Smiddie testified that "there probably wasn't a machine in
the line" for Tilley to work on, but given an opportunity she did not testify definitely that there
was no such machine.
A week later, on August 30, 1951, Lefkoff brought with him, to a meeting with representatives
of the Union and a Board field examiner called to alleviate the strike by arranging for a con-
sent election, some of Tilley's pay or production records. Witnesses for both the General
Counsel and Respondent testified that Lefkoff stated that Tilley had been laid off for lack of
work and because of her inefficiency Although Iam not convinced he said that, it is clear that
he did take the position at first that he would not reinstate her because she was an inefficient
worker When asked why, if she was ineffitient; he notd laid het' off before, either Lefkoff
or his wife, vice president of Rrespohidbfit, replied that they had not been able to replace her
prior to then- which seems highly doubtful in a labor market as large as Chattanooga. In any
case, Lefkoff's bringing the pay or production records with him, and his raising at all the
question of efficiency, represented a considerable departure from lack of work, which was the
only reason given Tilley for her layoff just a week before. At this 'conference Lefkoff agreed
to reinstate Tilley and his willingness was not conditioned upon work being available.
Conclusions as to Tilley: Upon consideration of the above evidence and all the evidence in
the case it is concluded that Lefkoff knew that Tilley was outspokenly in favor of the Union
and was assisting in the organizational drive , and that he decided to put a stop to these activ:
ities and ' the union movement by using Respondent 's layoff custom as a pretext to get rid of
her. Lefkoff's determination to resist the Union appears from his verbal statements to the
employees and statements made in their presence set forth above. kittie Lou Smiddie's re:
mark to Hazel judge a few days before Tilley's layoff indicates her knowledge that the union
drive would occasion discriminatory layoffs, and her comments to Tilley as she was telling
her to go home and later outside the plant, indicate that the Union rather than lack of work
was the reason for Tilley's layoff, and that Smiddie was simply carrying out orders. Cofer's
remark to Tilley bears out the same conclusion. It is held that by laying off Bertha Tilley on
August 23, 1951, Respondent unlawfully restrained and coerced its employees in violation of
Section 8 (a) (1), and discriminated against Tilley in regard to her hire and tenure of em-
ployment, thereby discouraging membership in the Union, in violation of Section 8 (a) (3) of
the Act.
B. The first strike
Altogether, on August 24, about two-thirds of Respondent's employees left the plant and
went on strike in protest of the discriminatory layoff of Bertha Tilley and Respondent's other
unfair labor practices found above. The remaining employees closed up the mill and were
sent home by Lefkoff, who made no effort to operate during the strike. The strike lasted from
August 24 until September 24, 1951, during which the strikers maintained a strike headquar-
ters in a tent across from the main plant entrance and, at certain hours, a small picket line.
THE RIVOLI MILLS, INC. 179
At 2 conferences during the strike, at which a possible strike settlement was discussed--1 in a
Board field examiner 's office and the other with a commissioner of the Federal Mediation
and Conciliation Service- -Respondent was represented by Mr. and Mrs Lefkoff as president
and vice president of the corporation, Superintendent Fred Cofer, and a different attorney
each time. The Union was represented by two or more international representatives or organ-
izers and a committee of strikers. At first the strikers demanded the reinstatement of Tilley
and recognition of the Union, and Respondent refused to reinstate Tilley or to recognize the
Union until after a Board election. Finally, on September 17 the Union and on September 20
the strikers agreed to end the strike when in writing Respondent agreed to recognize the
Union up to the date of a Board consent election, which was set for September 28, and agreed
"not to discriminate against any of its employees, or change wage rates or working conditions
from this date to the date of election." In addition the parties made an oral agreement con-
cerning the reinstatement of Bertha Tilley, the exact nature of which was in great dispute in
the record. The Union contends Respondent agreed to place her on a serger machine, with
which she was most familiar, and Respondent contends it agreed to place her on any machine
she could operate , including a tacker, at the discretion of management. It was agreed that she
would work a 60-day trial period, after which Respondent would have a right to discharge her
if her production was not at least 75 percent of that of an average operator on that operation.
Joe Lee Walden, executive secretary of the Union's southeastern region, was the witness
whose testimony impressed me as most accurately reflecting the agreement as to Tilley. Her
testimony and her written notes made during the conference indicate that the agreement was
that the trial period was to be on a serger machine or on a merrow machine which had a
similar operation , on which machines Tilley operated at her greatest efficiency. Such an
agreement was in key with the probabilities. The strike having been caused in part by and
precipitated by the layoff of Tilley, and most of the first conference having been spent in dis-
cussing her reinstatement, it is probable that Respondent, who was eager to resume produc-
tion, gave in to the Union on this point, realizing that the strikers were adamant. Further, it
is highly improbable that the Union and strikers' committee agreed to a production rate for
Tilley on a machine on which she was admittedly slow- -such as a tacker- -or on an undesig-
nated machine or machines at the discretion of management where it would be so easy for the
latter to make certain her production would be low. Considering the entire record, it is con-
cluded that the agreement concerning Tilley was that she should be returned to work on a
serger machine or a merrow machine, which was similar.
Between the two conferences referred to above, Mr. and Mrs. Lefkoff and Fred Cofer
individually or in pairs called at the homes of several of the strikers and attempted to per-
suade them to return to work and to get the other strikers to do likewise. At one of the homes
Cofer told Alice Costello, who had suggested a meeting with Lefkoff, that the latter did not
like Costello, that "he hates you and he won't talk to you " Dorothy Headrick, one of the
strikers, testified credibly that at her house Lefkoff said that he intended to fight the Union as
long as he could.
The written strike-settlement agreement did not set forth the time the strikers would return
to work. By oral arrangement between Respondent's attorney and Alice Costello, some of the
strikers returned to work on Friday and Saturday but the bulk of them returned on Monday,
September 24, 1951 September 21 Respondent's attorney wrote the regional director of the
Union
This letter confirms the conference I had with Mrs Alice Costello yesterday in Mr
Morris Miller's office when it was agreed that the Company would assume and accept
that any employees not showing up for work Monday morning will be considered no longer
employees of this Company unless they have a legitimate excuse.
C. The discharge of Nellie Clark
September 24, as the employees returned id work a little before 7 o'clock, (the shift began at
7) many of them for the first time in a month, both management and the employees were tense.
The Board election was a mere 5 days off. As the employees entered the plant , union organizers
passed out leaflets to them. Lefkoff, contrary to his custom, as well as Cofer and Smiddie,
assigned them to machines. Just before the employees came in Lefkoff and Cofer decided,
according to the latter's testimony, to place the employees on a temporary basis at first, in
order to settle them down, and then later to reassign them on a more permanent basis; but
they made no announcement to that effect to the employees generally. Had they done so, much of
the ensuing confusion might have been avoided.
Although they knew the layoff of Tilley had been at least one of the causes of the first strike
and although they had both participated in a long discussion with union and striker representa-
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tives as to where Tilley should be placed upon her return to work, Lefkoff and Cofer made no
plans concerning the placement of Tilley on September 24. Cofer testified in effect that he did
not consider that he should handle Tilley with any especial care that morning, and that, by
happenchance. Tilley was the first one he gave an assignment to that morning As Cofer knew,
Tilley had had more experience on a serger than on a tacker, and most of Respondent's ma-
chines were sergers. Yet Cofer placed Tilley on a tacker, and, at that, one that needed re-
pairs before it was in working order. Only a small desire to abide by the strike-settlement
agreement and to avoid irritating the union adherents among their employees, or, in the patent
absence of that, ordinary precaution, would have led Lefkoff and Cofer to place Tilley on a
serger or merrow from the start.
The unplanned and haphazard manner in which employees were placed at the machines caused
a number of employees, including some members of the strikers' committee, to protest their
assignments, which in turn caused Lefkoff's temper to rise and led to his making some strong
statements, accompanied by profanity.
According to the credited testimony of several employees, when Bertha Tilley protested her
assignment to the tacker, Lefkoff told her in a loud voice, and with some profanity, that she
should get on that tacker or he would call the police and have her thrown out., At about that
time he called to his wife and Cofer in the office to call the police and they did so, the latter
reporting a "free-for-all."
When one of the employees, Nellie Clark, toLefkoff's knowledge a member of the employees'
committee, protested that placing Tilley on a tacker was contrary to the strike-settlement,
that the agreement called for Tilley's being placed on a serger, Lefkoff replied, in effect, that
union or no union, agreement or no agreement , no union was going to tell him where to place
his employees or how to run his business When, just a few moments after 7 o'clock, Nellie
Clark was looking for Forelady Smiddie to get an assignment and Lefkoff remarked to her that
he payed her to work and not stand around and loaf, Clark replied that she didn't have a ma-
chine. Lefkoff replied, in short temper, that the machines were his machines, that he paid for
them with his own money, and that no union or anyone else was going to tell him how to run
them.
While Nellie Clark was protesting onbehalfofTilley, as related above, Lefkoff ordered her,
according to her credited testimony, to get on a machine and get to work, upon pain of dis-
charge. According to the testimony of Florine Fitzgerald, an employee, she was some 15 feet
away from Lefkoff and Clark when she heard the former tell the latter "to get on her machine
or get the hell out of here." She did not hear Clark's reply, if any. When Clark replied, ac-
cording to Clark's testimony, that the machine to which she had been assigned was not yet in
running order, Lefkoff ordered her to sit at it until it was repaired. When she acquiesced he
ordered her to go to work. She protested that she could not run the machine without a foot on
it, and added that it was not her machine to begin with. Lefkoff's reply, according to Clark's
testimony, was, "You have no machine . . You refused to come in here Friday, and you are
fired " Gertrude Guffey, another witness for the General Counsel, testified on cross-
examination, the subject not having been raised on direct examination, that she overheard
Lefkoff tell Nellie Clark to get out, that she was fired. Several other witnesses for the General
Counsel testified in effect that Clark was discharged. Ruth Crabtree stated that although she
did not hear all of the conversation, sheheard Lefkoff tell Clark she was fired, "to get the hell
out." Bertha Tilley testified she heard Lefkoff tell Clark "to get the hell out of there, she was
fired." Hazel Judge heard Lefkoff tell Clark that "if she didn't go to work she could get the
hell out of there, she was fired." After Lefkoff had told her she was fired, Clark told him, she
testified that he had not lived up to his agreement, that "you are agitating another strike and
we will walk out again." To which Lefkoff replied, "You are fired anyhow .... Punch your
clock."
The testimony showed that the machine on which Lefkoff ordered Nellie Clark to go to work
lacked a zipper foot, and in testifying Lefkoff admitted that the machine could not operate at all
without a zipper foot. So in his anger Lefkoff directed his employee to go to work on a machine
which could not possibly be operated. Lefkoff s reference to Clark' s refusing to work Friday
related to a telephonic request from SmiddietoClark following the oral arrangement referred
to above, in which Smiddie suggested that Clark return to work Friday, September 21, the
latter replying that the agreement was that they would all be back at work on Monday, Septem-
3Lefkoff testified that he did not give any directions concerning the placement of Tilley that
morning, and then, inconsistently, that he insisted on keeping Tilley on the tacker when Nellie
Clark and Ruth Crabtree urged otherwise, "because I wanted her on a tacker I had some work
I wanted her to do on a tacker." This testimony was inconsistent also with Respondent's testi-
mony that its original placement of Tilley and some of the other employees was on a temporary
basis only.
THE RIVOLI MILLS, INC. 181
ber 24 . Actually Clark was not obliged to report to work before Monday under the strike-
settlement agreement , and many of the employees did not report until Monday and were not
discharged for their failure to report earlier.
Several witnesses for Respondent testified that they heard Nellie Clark say to Lefkoff that
he could take his machine and go to hell with it. Zelah Norris heard some raised voices over
the noise of her flat lock machine, and by the time her "seam run out and my machine stopped"
she heard Clark express the above sentiment to Lefkoff. She did not hear what Lefkoff said to
Clark just before this statement by Clark. Nettie Pass heard the remark but did not hear what
Lefkoff had said to provoke it. Kittie Lou Smiddie's version of the conversation, which she
overheard, was that Clark insisted upon working on "my" machine, that Lefkoff kept telling
her to work on another machine, and that Clark said, "You can take your machine and go
stright (sic) to hell with it. I am not working. I am going home" --to which Lefkoff replied,
"Well, go on." Fred Cofer , the superintendent , testified that he did not hear all of the con-
versation; that he heard Lefkoff tell Clark she could work on a certain machine which was
just like the one she had previously worked on and would do the same operation ; that Clark
said Lefkoff could take his machine- -or mill, Cofer was not sure which- -and "go to hell with
it." Lefkoff s version was that after protesting being assigned to some machine other than the
one she had worked on before the strike , and after Lefkoff told her to work on the other ma-
chine and to go sit down at it, Clark replied, "The hell with you. You can keep that machine.
I am not going to work here at all . I quit ." In the light of the entire record it is held that any
use of profanity by Clark was made after Lefkoff discharged her and not before.
It is not disputed that after the words between Lefkoff and Clark came to an end Lefkoff
walked with Clark some 50 feet to the front door and unlocked the door and let her out Before
letting her out he saw that she punched put on the time clock --"because previously a lot of
girls didn't punch out on the first strike." Clock punched out at 7:11 o'clock. As he let her
out, according to the uncontradicted testimony of Dorothy Headrick, a credible witness, Lefkoff
said to Clark, "Get the hell out of here and don't come back." Headrick, who was near the
door , said to Lefkoff that if he was firing one of them they would all walk out.
Respondent ' s contention that Clark quit her job is not supported by the evidence . The record
indicates that Clark was one of the leaders of the organizing efforts, in fact was the one who
suggested that they contact the Union; that she believed and had participated with the other
employees in collective action , which she last engaged in just a few moments before her dis-
charge by attempting to assist Tilley . Thus, there is every indication that she intended to
stay with the struggle and to see it through , and that she would not lightly abandon the cause in
which she had enlisted . The record discloses no motive for her quitting and no suggestion that
she was of the caliber which quits under stress.
It is concluded , upon consideration of all the substantial evidence in the case , that the pre-
ponderance of the evidence indicates that Nellie Clark did not quit, as contended by Respondent,
but that she was discharged by Lefkoff. Lefkoff's hostility to the Union is well shown throughout
the record , and his treatment of the returning strikers on September 24 was in keeping with
that hostility. Towards them his actions and his words were provocative and defiant. His
statements to Tilley, Clark, and a number of other returning employees, betrayed a mood and
an intent to ignore and defy their rights under the Act. His discharge of Clark when she stood
up to him and insisted upon his compliance with the strike -settlement agreement , was a part
of this mood and this defiance , and although committed in anger, was an act calculated, by
using Clark as an example , to discourage the assertion of their rights by the employees and
to discourage their continued adherence to the Union. It was an act calculated also to affect the
results of the election set a few days hence . It is held that Lefkoff discharged Nellie Clark on
September 24, 1951, to discourage activity and membership in the Union, in violation of Section
8 (a) (3) of the Act, and that by such discharge Respondent interfered with , restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act , in viola-
tion of Section 8 (a) (1).
D. The second strike and the refusal to reinstate the strikers
A number of employees and former strikers having heard Nellie Clark discharged, word of
the event spread rapidly through the mill, and a number of employees began to stop their
machines , to "gather up (their ) things," and prepare to leave . Soon one of the union adherents,
James A. Smith, came in with word from Alice Costello that Clark had been discharged and
that the other employees should get up from their machines and walk out as soon as the fire
marshall opened thedoors. Within 20 minutes after Clark's discharge some 25 or 30 employees
left the plant in protest of the discriminatory discharge of Clark, Respondent ' s continued
hostility towards the Union, Respondent's discriminatory actions and antiunion statements that
morning , and its breach of the strike - settlement agreement. It is held that the second strike, as
well as the first , was an unfair labor practice strike.
283230 0 - 54 - 13
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent . contending that the first strike was an economic strike , urged that the second
was but a continuation of the first . It sought , but in my view failed , to show, in proof of this
position , that the strikers ' tent was still standing on September 24, that only a few of the em-
ployees carried lunches that morning. There were a few statements made in the mill that
morning to the effect that the workers would not be in the plant long , but these statements may
have been made after the discharge of Nellie Clark, and in any case they no more show a
predetermination to stay a few moments and walk out than they indicate a distrust of what
Lefkoff might do and might cause them to do in self-protection. Bertha Tilley testified there
was no discussion among the employees concerning walking out again after they returned
Statements made at the two strike-settlement conferences indicated a considerable distrust of
Lefkoff's motives and of his intent to abide by any agreement which might be reached , and the
record shows considerable hesitation on the part of the strikers to accept any settlement with
Lefkoff which did not give them a contract before they abandoned the strike. The Union urged
the strikers that they themselves must act in complete good faith in any agreement they made
with Lefkoff and must assume that the Respondent would do likewise; and that when they re-
turned to work they must return in full force and with the intent and willingness to do their
work. It is held that the preponderance of the evidence indicates that the second strike was not
a continuation of the first but was a new strike precipitated by Respondent that morning.
The employees listed on Appendix A attached hereto were the employees who participated in
the second strike. 4 On October 17, 1951, each of these employees applied unconditionally for
reinstatement to their former or substantially equivalent positions . As the strike in which
they were participating was an unfair labor practice strike, they were then entitled to rein-
statement , regardless of whether Respondent had employed others in their places.
October 18 , 191, Respondent acknowledged receipt of the unconditional applications for
reinstatement , and wrote:
Our company as of October 17 has a full personnel covering our needs for the present.
If we find it necessary to increase our operations, we will then notify those employees
from whom it received the applications . Thus in effect Respondent refused to reinstate the
strikers at the time of their unconditional application , and insofar as the record shows, none
of them had been reinstated up to the time of the hearing.
In conclusion I find that on October 17, 1951, and at all times thereafter Respondent dis-
criminatorily refused to reinstate the employees listed on Appendix A attached hereto,
because of their union and concerted activities , thereby violating Section 8 (a) (1) and (3) of
the Act.
IV. RECOMMENDATIONS CONCERNING THE CHALLENGED BALLOTS
Referred to me for recommendation is the question as to what challenged ballots of the
strikers and striker - replacements should be opened and counted in the election held January 11,
1952 . As the strike of September 24, 1951 , was an unfair labor practice strike and as the
strikers were entitled to reinstatement at all times after October 17 , 1951, it is recommended
that their ballots be opened and counted . The record established that the employees listed on
Appendix A attached hereto participated in the second strike . To be opened and counted under
this recommendation will be the ballots of all employees listed on said Appendix A whose
ballots were challenged. As the names of Nellie Clark, Mildred L. Carter, and Max Cherny
did not appear on the lists of challenged voters attached to the Regional Director ' s report on
election , challenged ballots, and recommendation to the Board , it is assumed that their ballots,
if cast , were not challenged.
4Myrtle Slaton , although she was a striker , is not included on this list because she was a
supervisor. She was forelady over the finishing department, a job comparable to that of Kitty
Lou Smiddie over the sewing department . Slaton described her own duties as "mostly to get
the work out," but stated she had no authority to hire or fire. Superintendent Fred Cofer
testified with respect to the authority of Slaton and Smiddie thathethought "they would have
authority to hire or fire or effectively recommend changes ." When, during a strike-settlement
conference, the parties were working out an eligibility list for the proposed consent election,
it was agreed that both Smiddie and Slaton should be excluded as supervisors . In its Decision
and Direction of Election dated December 13, 1951, the Board held that both of these fore-
ladies were supervisors . In his report on election , challenged ballots , and recommendation to
the Board, the Regional Director concluded that Slaton was a supervisor and therefore not an
eligible voter.
THE RIVOLI MILLS, INC. 183
Although the name of Carmilla Zollo appears on Appendix A of the Regional Director's said
report , the list challenged by Respondent at the election on the ground that they were strikers
who had been replaced , the evidence before me did not indicate that a person of that name
participated in the second strike. The evidence established however, that Camilla Zolla, whom
I find to be the same person , was in the first strike , and was one of those who worked on
Friday, September 21, and Saturday, September 22,1951 On this testimony I find that she was
not hired as a replacement for those who went on strike September 24, the proof showing that
she was already an employee before September 24. As she was not a striker - replacement,
and as there appears no other reason why her ballot should not be counted , I recommend that
it be opened and counted.
There was uncontradicted, testimony that the only ones who struck on September 24 were
those listed on Appendix A attached hereto, and Myrtle Slaton, which list does not include any
of the names listed on , Appendix B of the Regional Director ' s report , the list challenged by
the Union on the ground that they were striker - replacements . Respondent ' s written reply,
dated October 18, 1951 , to the strikers ' unconditional offer to return to work, shows that by
that date , just over 3 weeks after the beginning of the strike , Respondent had.a full complement
of employees , which must have involved the hiring of some striker - replacements . That Re-
spondent hired striker - replacements was shown also by the fact that it was eager to get the
strikers back to work after the first strikebecause it had some orders to get out, which orders
it could not have filled with the small group of employees who remained at work during the
second strike . It is held that the employees listed on Appendix B of the Regional Director's
report were striker - replacements , a conclusion not challenged at the hearing , and were not
therefore eligible voters ; and it is recommended therefore that their ballots not be opened
and not be counted. -
Referred to me is the question as to whether Carrie Pylant's ballot should be opened, and
counted . Pylant was an old employee , having worked for Respondent since about 1938 or 1939.
She was a skilled operator ; and for long before the election had made samples of the some 55
or 60 garments made by Respondent , and when orders came in on the samples , she showed
other operators how to perforqi their operation on the garment Although she had done this
work for some time before the$; she was called to a meeting with management and other
supervisors in August 1951 , and given the job of sample-making and instruction -giving.GThis
was the only super,isors' meeting she ever attended. Pylant testified that slie was classified
as a steward, and was the onlyemployeewith that classification. In addition to making samples
and instructing, she set up lines of machines when a new garment was about `to go into pro-
duction She did not assign work to einpfoyees except on occasion to relay a specific assign-
ment from the floorlady or Mrs. Lefkoff, v16e president, who worked in the plant after the
strike in Smiddie's place as floorlady. Pylani was in charge of quality,, and had authority to
return bad work to a girl and show hei how to d'o the work properly She had no authority to
hire or fire, promote or demote. of effectively [o recommend any such action- -although she
had the same right as other employees to recommend the employment of someone. At the first
strike-settlement conference when the 'pa'rties were discussing the arranging of a consent
election, it was agreed that Cai i@ Pylant should be allowed to vote Pylant was paid by the
hour She had no authority to reprimand other employees. Considering all the evidence, it is
held that Carrie Pylant was not a supervisor within the meaning of the Act, and it is rec-
ommended , therefore, [hat her ballot be opened and counted.
With respect to the challenged ballot of Alice Davis, the Regional Director, on page 8 of his
report on election , challenged ballots, and recommendation to the Board , having set forth the
facts concerning her employment developed by his investigation, concluded that Davis was not
a temporarily laid-off employee but was in fact a striker-replacement. He concluded that her
ballot should be considered in ihesame category with those of the other striker - replacements.
No exceptions were taken By Respondent to either this finding or anything else in said report
Nothing in the Board 's dider directing hearing on challenged ballots referred to me, con-
cerning this challenge , 0broader issue than that posed by the Regional Director . It is rec-
ommended that , as Alic@ Davis was a striker - replacement , her ballot should not be opened
and should not be counted.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities , set forth in section III, above , occurring in connection with Re-
spondent ' s operations described 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
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set forth above, I
recommend that it cease and desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Respondent having discharged and refused to reinstate Bertha Tilley , Nellie Clark , and the
other strikers listed on Appendix A attached hereto , because of their union and concerted
activities , I recommend that Respondent offer to each of them immediate and full reinstate-
ment to his former or a substantially equivalent positions without prejudice to his seniority
and other rights and privileges and make each whole for any loss of pay he may have suffered
by reason of Respondent ' s discrimination against him, by payment to each of them of a sum of
money equal to that which he normally would have earned as wages from August 24, 1951, in
the case of Tilley, from September 24, 1951 , in the case of Clark, and from October 17, 1951,
in the case of the other strikers , the dates of the discrimination against them , to the date
when , pursuant to the recommendations herein contained , Respondent shall offer them
reinstatement , less the net earnings of each during said period , 6 Loss of pay shall be
determined by deducting from a sum equal to that which these employees would normally have
earned for each quarter or portion thereof , their net earnings , if any, in other employment
during that period . Earnings in one particular quarter shall have no effect upon the back-pay
liability for any other quarter The quarterly periods described herein shall begin with the
first day of January , April , July, and October .? It is recommended further that Respondent
make available to the Board upon request payroll and other records, in order to facilitate the
checking of the amount of back pay due 8
Because of the Respondent's unlawful conduct and its underlying purpose and tendency, I
find that the unfair labor practices found are persuasively related to other unfair labor
practices proscribed and that danger of their commission in the future is to be anticipated
from the course of the Respondent ' s conduct in the past 9 The preventative purpose of the Act
will be thwarted unless the order is 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 thereby to minimize industrial strife which burdens and obstructs commerce,
and thus effectuate the policies of the Act , I will recommend that Respondent cease and desist
from in any manner infringing upon the rights guaranteed in 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. The Rivoli Mills, Inc., is engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act
2 International Ladies' Garment Workers' Union, A. F. of L., is a labor organization within
the meaning of Section 2 (5) of the Act.
3 By discriminating in regard to the hire and tenure of employment of Bertha Tilley, Nellie
Clark, and the other employees listed in Appendix A attached hereto , thereby discouraging
membership and activity in the above - named Union, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
4. By interrogating its employees concerning their union membership and activities, by
threatening to discharge them if they continued working for the Union , and by threatening its
employees that if the union movement were successful they would not thereafter be permitted
to transfer from one machine to another , Respondent interfered with , restrained , and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating
Section 8 (a) (1)
5 By said acts and other acts Respondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act, and has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act
[Recommendations omitted from publication. ]
SThe Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827.
6Crossett Lumber Company, 8 NLRB 440, 497-8; Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
i F. W. Woolworth Company, 90 NLRB 289.
OF. W. Woolworth Company, supra
ON. L. R. B. v. Express Publishing Co., 312 U. S. 426.
HUGHES-VERTIN LIME COMPANY 185
APPENDIX A
Frances Avery Hazel Judge Max Cherny Clara Lusk
Mildred L. Carter Joyce Kendrick Jewell Cox Ruby A. Martin
Ollie Chambers Virgie Mahan Mary Durham Helen Morgan
Ruth Crabtree Ona Mason Winnie Lu Gaither Dorothy Poe
Florine Fitzgerald Imogene Parsons Lucille Gossett Martha Short
Dorothea Garren Stena Ransom Gertrude Guffee James A. Smith
Nellie V . Green Virginia Vitatoe Elizabeth Hart Edna Vandergriff
Mary Gunter Lena Brock Dorothy Headrick Bertha Tilley
George Hayes Cynthia Chambers Geneva Kelly Nellie Clark
HUGHES-VERTIN LIME COMPANY and UNITED CEMENT,
LIME AND GYPSUM WORKERS INTERNATIONAL UNION,
AFL, Petitioner,. Case No. 20-RC-2056. April 17, 1953
DECISION AND ORDER
Upon a petition duly'filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Clement W.
Miller, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent em-
ployees of the Employer.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for
the following reasons:
The Employer and Tri-Counties Building and Construction
Trades Council, AFL, the Intervenor, assert that their current
contract is a bar to this proceeding. The Petitioner contends
that the contract, which contains a union-security clause, is
not a bar because the Intervenor was not in compliance on the
operative, or Mill-B, t date of the contract's automatic renewal
clause, nor at the time the Petitioner requested recognition.
After a Board-directed election, 2 the Intervenor was certified
on July 30, 1951, as the bargaining representative of the Em-
ployer's production and maintenance employees. On January 25,
1952, the Employer and the Intervenor executed the union-shop
contract asserted herein as a bar, effective January 1, 1952,
for a 1-year period, with annual automatic renewal thereafter,
absent written notice by either party of its desire to change the
agreement at least 60 days before any anniversary date.
I See Mill-B , Inc., 40 NLRB 346.
SCase No . 20-RC-1355 (not reported in printed volumes of Board decisions).
3Article III of the contract provides:
Section 1 . Membership in the Union shall be required as a condition of employment on
and after the thirtieth ( 30th) day following the beginning of such employment or transfer
into the bargaining unit , or the effective date of this Agreement , whichever is the later.
104 NLRB No. 20.