Trimfit of California, Inc.

National Labor Relations Board - Board Decisions

Dec 2, 1952

101 N.L.R.B. 706 (N.L.R.B. 1952)

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
positions , without prejudice to their seniority and other rights and privileges,
and make them whole for any loss of pay suffered as a result of the discrimi-
nation against them.
All our employees are free to become , remain , or refrain from becoming or
remaining members of the above-named union or any other labor organization
except to the extent that this right may be affected by an agreement in con-
formity with Section 8 ( a) (3) of the Act. We will not discriminate against
any employee because of membership in or activity on behalf of any such labor
organization.
FALLS CITY CREAMERY COMPANY,
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.
TRIMFIT OF CALIFORNIA , INC. and AMERICAN FEDERATION OF HOSIERY
WORKERS, AFL. Case No. f1-CA-1060. December ., 1952
Decision and Order
On February 20, 1952, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged and was engaging in unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief. The Respon-
dent's request for oral argument is denied as the record, exceptions,
and brief, in our opinion, adequately present the issues and the posi-
tions of the parties.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Intermediate Report,
the Respondent's exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following modifications : 2
1. The Respondent excepts to the Trial Examiner's finding that
the Respondent locked out all its employees on January 22, 1951, in
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Murdock and Peterson].
2 On page 714 of the Intermediate Report the Trial Examiner inadvertently states that the
union meeting was scheduled for January 22, 1951, and not , as the record shows, for Janu-
ary 21 . We hereby correct this error, which in no way affects the Trial Examiner 's ultimate
conclusions.
101 NLRB No. 137.
TRIMFIT OF CALIFORNIA, INC. 707
violation of Section 8 (a) (1) and (3) of the Act. We find merit in
this exception.
It is clear from the record that, in the first week of January 1951,
the Respondent decided to alter its knitting machines in order to
manufacture loopless toe hosiery. The tool necessary to effectuate
this change-over was received at the Respondent's plant on January
16. Both before and after the receipt of the tool, Driess, the manu-
facturer's representative who was to be in charge of this work, with
the support of Mittman, the plant superintendent, insisted that all
the knitting machines be shut down while the change-over was being
effected.' Driess contended that the complete shutdown was neces-
sary because (1) he could not make the necessary changes in the
machines and also perform his other work for the Respondent; and
(2) this was the only way to comply with the manufacturer's request
to return the tool as soon as possible. Robert Kramer, who was in
charge of the plant, at first tried to persuade Driess merely to shut
down one machine at a time but decided on January 19 to adopt Driess'
recommendation.
Although the Trial Examiner distinguishes between a shutdown
of the whole plant and a shutdown merely of the knitting machines,
it is clear from the record that the Respondent never considered
keeping the rest of the plant open if all the knitting machines were
shut down. At the time the plant closed down, January 22, there
was not more than half a day's work for the seamers, loopers, and
inspectors, and about a week's work for the menders. The Re-
spondent produced credible evidence that it was economically unsound
to keep the rest of the plant open when the knitting machines were
not operating, and there is no evidence to the contrary. The 5,000
dozen stockings "awaiting processing" on January 22, referred to in
footnote 18 of the Intermediate Report, were completely finished as
far as the Respondent's plant was concerned. The Respondent does
not do its own dyeing and boxing, the only operations that remained
to be done on these stockings.
It appears, therefore, that before the union meeting of January 21
was planned and before there was any evidence that the Respondent
knew of the Union's activity in the plant, the Respondent had not
only decided on the change-over but the production personnel in
charge of the work had recommended the complete shutdown of the
knitting machines. Although the question is not free from doubt,'
we are unable, upon the record as a whole, to find that but for the
union activity the Respondent would have continued to operate its
"Driess' letter of January 17 to Arnold Kramer , recommending the shutdown of all the
machines at once, was introduced into evidence and its authenticity is not disputed.
The Board has held that a finding of violation of the Act cannot be based on Suspicion
alone. Punch and Judy Togs , Inc., of California, 85 NLRB 499.
242305-53-46
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant in the usual manner without a layoff of the employees herein
concerned. Accordingly, as the record does not warrant the conclu-
sion that the closing of the plant was effectuated because of the Re-
spondent's knowledge of union activity therein,5 we find no basis for
finding that the Respondent locked out its employees in violation of
the Act e We shall therefore dismiss the complaint insofar as it al-
leges that the Respondent violated the Act by locking out its employ-
ees on January 22, 1951.
2. We agree with the Trial Examiner's finding that the Respondent
unlawfully refused to bargain with the Union on and after January
30, 1951. The Respondent unqualifiedly refused to bargain with the
Union on January 30 and persisted in its refusal on February 6. We
agree with the Trial Examiner that the Respondent's belated ques-
tioning, in April, of the Union's majority and insistence upon a Board
election were not made in good faith. Although the Trial Examiner
relied in part upon his finding of an unlawful lockout on January 22
to show the lack of good faith, we believe that the other violations of
the Act found herein, considered together with the Respondent's ini-
tial clear-cut refusals to bargain, fully support the Trial Examiner's
conclusions.
3. The Trial Examiner found, and we agree, that Fitzpatrick was
discriminatorily denied reinstatement when the plant reopened. The
Trial Examiner relied in part upon the conversation Fitzpatrick had
with his brother-in-law, Driess, near the end of March 1951. During
this conversation, according to Fitzpatrick's credited testimony,
Driess warned Fitzpatrick not to associate with Ludwig and Landers
because they were "... trying to organize the place ..." On cross-
examination, Fitzpatrick admitted that Driess may not have used the
words quoted but that he so interpreted Driess' remarks. In any
event, Driess' admonition to Fitzpatrick not to associate with Lud-
wig and Landers, two of the most active union adherents in the plants,
clearly reflects the Respondent's hostility toward the Union.
Driess originally came to the Respondent's plant as the representa-
tive of the knitting machine manufacturer in charge of erecting the
machines. However, the Respondent employed Driess separately to
act as the "fixer" of the machines and also to train and direct the
work of the knitters. The Trial Examiner found that Driess was not
a supervisor within the meaning of the Act. Without resolving this
question, we find, as did the Trial Examiner, that Driess was so closely
identified with management that his conduct should be imputed to the
'
See N. L. R B. v. J. I. Case Company, Bettendorf Work8, 198 F. 2d 919 (C. A. 8).
Walter Holm & Company , 87 NLRB 1169.
TRIMFIT OF CALIFORNIA, INC. 709
Respondent, and that the Respondent for this reason is legally re-
sponsible for his remarks to Fitzpatrick.?
4. We agree with the Trial Examiner's finding that James R. Lud-
wig was discriminatorily refused reemployment. As the Trial Exam-
iner points out, the record does not support the Respondent's conten-
tion that Ludwig was an unsatisfactory knitter. In this connection,
we rely especially upon the testimony of Driess, a witness for the Re-
spondent, that Ludwig had developed into a competent knitter by the
time of the plant shutdown.
5. We do not agree with the Trial Examiner's finding that Roy
Roush was discriminatorily discharged in violation of Section 8 (a)
(3) of the Act. Although Roush was one of the original organizers of
the Union and one of its most active supporters, he was promptly re-
employed upon the reopening of the plant. Two days later the Re-
spondent discharged Roush because he had a "smash-up" on his knit-
ting machine. The record shows that the seriousness of the "smash-
up" was due to Roush's carelessness or inexperience; Roush admitted
as much in his testimony. Furthermore, two other knitters had com-
parable "smash-ups" about this time, and both were discharged. Un-
der these circumstances, we are not prepared to find that Roush was
discharged because of his activity in behalf of the Union, and we shall
dismiss the complaint as to him.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Trimfit of California, Inc.,
Anaheim, California, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with American Federation of
Hosiery Workers, AFL, as the exclusive representative of all produc-
tion and maintenance employees at its Anaheim, California, plant,
excluding supervisors as defined in the Act, with respect to rates of
pay, wages, hours of employment, or other conditions of employment.
(b) Discouraging membership in American Federation of Hosiery
Workers, AFL, or in any other labor organization, by discharging or
refusing to reinstate any of its employees, or by discriminating in any
other manner in regard to their hire or tenure of employment, or any
term or condition of their employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
' Roaanna of Texas, Inc., 98 NLRB 1151.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form labor organizations, to join or assist American Federation of
Hosiery Workers, AFL, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all
such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of 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) Upon request, bargain collectively with American Federation
of Hosiery Workers, AFL, as the exclusive representative of all the
above-described employees, and embody any understanding reached
in a signed agreement.
(b) Offer to Dennis Fitzpatrick, James R. Ludwig, Ruth C. Lud-
wig, and Raymond Murphy immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make them whole,
in the manner set forth in the section of the Intermediate Report en-
titled "The Remedy," for any loss of pay they may have suffered by
reason of the Respondent's discrimination against them.
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records, and all other records neces-
sary to analyze the amounts of back pay due and the right of rein-
statement under the terms of this Order.
(d) Post at its plant in Anaheim, California, copies of the notice
attached hereto and marked "Appendix A." 8 Copies of such notice,
to be furnished by the Regional Director for the Twenty-first 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 sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that such notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
TRIMFIT OF CALIFORNIA, INC. 711
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent discriminatorily laid off and locked out its employees
on January 22, 1951, and discriminatorily discharged Roy Roush on
or about February 20, 1951, be, and it hereby is, dismissed.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL BARGAIN collectively, upon request, with AMERICAN
FEDERATION OF HOSIERY WORKERS, AFL, as the exclusive repre-
sentative of all production and maintenance employees, excluding
supervisors, with respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment, and embody any
understanding reached in a signed agreement.
WE WILL OFFER to Dennis Fitzpatrick, James R. Ludwig,
Ruth C. Ludwig, and Raymond Murphy immediate and full
reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay suffered as
a result of the discrimination against them.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist AMERICAN
FEDERATION OF HOSIERY WORKERS, AFL, or any other labor or-
ganization, 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 protec-
tion, or to refrain from any or all such activities except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
All our employees are free to become or remain members of the
above-named Union or any other 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 mem-
bership in or activity on behalf of any labor organization.
TRIMFIT OF CALIFORNIA, INC.
Dated -------------------- By ------------------------------
(Representative ) ( Title)
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Recommended Order
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed on March 7 and July 2, 1951,
respectively, by American Federation of Hosiery Workers, presently affiliated
with American Federation of Labor,' herein called the Union, the General Coun-
sel of the National Labor Relations Board, herein respectively called the General
Counsel and the Board, by the Regional Director for the Twenty-first Region
(Los Angeles, California), issued his complaint on July 25, 1951, against Trim-
fit of California, 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), (3), and (5) and Section 2 (6) and (7) of
the National Labor Relations Act, as amended, 61 Stat. 136, herein called the
Act.
Copies of the complaint and charges, together with notice of hearing thereon,
were duly served upon Respondent and the Union.
With respect to the unfair labor practices, the complaint, as amended at the
hearing, alleged in substance that the Respondent (1) on or about January 22,
1951, laid off and locked out its employees because of their membership in, or
activities on behalf of, the Union or because they had engaged in concerted
activities ; (2) on or about February 7, 1951, discharged all its employees because
a majority of them had designated the Union as their collective bargaining
representative and had engaged in union and other concerted activities; (3)
since on or about February 12, 1951, failed and refused to reinstate Dennis
Fitzpatrick, James Ludwig, Ruth Ludwig, and Ray Murphy, to their former
positions when the mill reopened because of their membership in, or activities
on behalf of, the Union, and because they had otherwise engaged in union and
concerted activities; (4) on or about February 20, 1951, discharged Roy Roush,
and thereafter has refused to reinstate him, because of his membership in, and
activities on behalf of, the Union and because he had otherwise engaged in
union and concerted activities; and (5) on or about January 30, and on or about
April 16, 1951, and at all times thereafter, has refused to bargain collectively
with the Union although the Union since January 21, 1951, has been the duly
designated collective bargaining representative of Respondent's employees in a
certain appropriate unit.
The Respondent duly filed an answer denying the commission of the alleged
unfair labor practices.
Pursuant to notice, a hearing was duly held in Los Angeles, California, from
November 19 through December 7, 1951, before the undersigned, the duly desig-
nated Trial Examiner. The General Counsel, Respondent, and the Union were
represented by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence per-
tinent to the issues was afforded the parties. At the conclusion of the taking
of the evidence, the General Counsel moved to conform the pleadings to the
proof with respect to minor inaccuracies. The motion was granted without oppo-
sition. Counsel for Respondent then moved to dismiss the complaint for failure
1 At the time of the filing of the charges herein, the Union was unaffiliated.
2 Erroneously referred to in the charges, complaint, and certain other formal papers as
Trimfit of California.
TRIMFIT OF CALIFORNIA, INC. 713
of proof. Decision thereon was reserved. The motion is herewith denied. Oral
argument was then had in which counsel for the parties participated. The
filing of briefs was waived by counsel.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Trimfit of California, Inc., a New York corporation, operates a mill at Ana-
heim, California, where it manufactures full-fashioned ladies' hosiery. All
Respondent's production is sold to Kramer Bros., Inc., whose stockholders are
substantially the same as Respondent's a The merchandise shipped by Respond-
ent to Kramer Bros., Inc., is in the greige stage. Upon receipt thereof, Kramer
Bros., Inc., at its Los Angeles, California, offices, has the hosiery dyed, boxed,
and then shipped to points located outside the State of California. Kramer
Bros., Inc.'s annual out-of-State shipment of Respondent's merchandise exceeds
$100,000. Respondent's annual purchases of nylon spun yarn, all of which is
received from points located outside the State of California, exceed $50,000.
The Respondent concedes, and the undersigned finds, that it Is engaged in com-
merce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
American Federation of Hosiery Workers, affiliated with American Federation
of Labor, is a labor organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
The site of the alleged unfair labor practices is a small ladies' hosiery mill
established by the Respondent in the summer of 1950 at Anaheim, California, a
community of some 14,522 persons ` and located about 32 miles from Los Angeles.
The building which houses the mill was purchased in the spring of 1950, by
either Robert Kramer, a stockholder and officer of Kramer Bros., Inc.,' or by that
corporation. After the purchase of the building, the interior thereof was re-
modeled so that the six knitting machines already, or which were about to be,
purchased from Karl Lieberkneckt, Inc., of Reading, Pennsylvania, could be ad-
vantageously placed therein and an addition was built on the building in order
that the sewing and repairing department could be housed in a room separate and
apart from the knitting department.
Under the terms of the purchase agreement , Lieberkneckt was to erect the
machines and assure their satisfactory working condition. The erecting com-
menced in July 1950 under the supervision and direction of Carl J. Driess, an
0 Kramer Bros., Inc., is mainly engaged in the manufacture, sale, and distribution of
men's and boys' hosiery. It operates a plant in Pennsylvania and its principal offices are
located in Philadelphia, Pennsylvania.
4 According to the preliminary report of the 1950 census made by the Census Bureau of
the United States Department of Commerce.
S The principal stockholders and operating officials of Kramer Bros. Inc., are Arnold
Kramer and his two brothers, Robert and Harry. The record indicates, and the under-
signed finds, that Arnold Kramer is the responsible head, and the person who makes all
major decisions with respect to the operations, of Kramer Bros., Inc.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee of Lieberkneckt, and by mid-September two machines had been erected
and production commenced thereon. On or about November 25, the third machine
was put into production.
B. Interference, restraint„and coercion; the shutdown of the mill; and the lock-
ing out of the employees
Commencing in September or in October 1950 employee James R. Ludwig, a
member of the Union prior to his employment with Respondent in August of that
.year, and James Hubbard , a fellow knitter ,° spoke together on numerous occa-
sions regarding the rates paid Respondent 's knitters and the rates received by
knitters of Eastern hosiery mills.
On or about November 13 Anthony J. Damm , president of Local 43-B of Ameri-
can Federation of Hosiery Workers, received a letter from Alexander McKeown,
president of the parent organization , stating that he had been advised that Re-
pondent's employees desired to be organized and suggesting that Damm select
a committee and call upon Ludwig.
On or about November 25 Damm wrote Ludwig inquiring when it would be
convenient to see him. Pursuant to arrangements Damm and his committee
called at Ludwig's Anaheim home on December 7 and discussed with Ludwig and
his wife, also a Respondent employee , wage scales and organizational plans.
On or about December 13 Damm received a letter from another union official
stating that Roy Roush , who had been recently hired by Respondent as a knitter,
had written the Union stating that Respondent 's employees were desirous of
being organized.
On or about December 17 Damm and a committee again called upon the Ludwigs
end further organizational plans were discussed . The committee and Damm
then went to Roush's home at Norwalk , California , and discussed with him the
subject matter of his letter to the Union.
Throughout December 1950 and up to about January 21, 1951, Ludwig and
Hubbard had discussions almost daily regarding the unionization of the mill.
These discussions took place variously as they drove to and from work , at work,
or between shifts. At times other Respondent knitters joined in the discussions.
During the early part of January , because of the unavailability of sufficient union
membership cards, Lester Landers , a knitter for Respondent , prepared a petition
which bore a legend identical to that appearing upon the Union 's membership
cards. This petition then was circulated in the plant among the 10 knitters
then in Respondent 's employ and each of them, save Hubbard and Paul Reynolds,
signed it.
On or about January 17 or 18 Roush secured from Edith Sue Carlisle , the Re-
spondent 's then bookkeeper and office clerk, a list of names of all Respondent's
employees and their respective addresses . The employees then were advised,
by Roush and Ludwig , either by post card or by word of mouth , that the Union
would hold an organizational meeting at the Anaheim American Legion Hall,
located about four blocks from the Respondent 's mill , on Sunday morning, the
twenty-second.?
Damm presided over the aforesaid meeting which was fairly well attended and
about 10 employees signed union membership cards that day.`
At the time of the hearing, Hubbard was Respondent's superintendent of production.
Arrangements for the meeting and for the use of the hall were made by Ludwig and
Roush jointly.
" Five employees had signed membership cards previously. At the time of the aforesaid
meeting, Respondent had 36 production and maintenance employees. The payroll for the
period ending January 27, which was received in evidence, includes the names of Alexander
Evasaw and Ray Ingram. However, Evasaw was not hired until after January 22, and
Ingram was a part-time employee.
TRIMFIT OF CALIFORNIA, INC. 715
Carlisle credibly testified that when she reported for work at about 8 o'clock
the next morning, January 22, she saw Emil Mittman , the then manager of Re-
spondent's mill and also main owner of California Hosiery Company, which firm
manufactures ladies hosiery and whose plant is located in Anaheim, standing in
the office doorway of Respondent's mill with Driess and William Burley;' that
as she passed the three men she noticed Mittman's "face was very red and he was
quite upset" ; that Mittman turned to her and asked, "Did you give the names of
the . . . mill employees to anyone?"; that when she replied in the affirma-
tive, Mittman asked to whom she had given the list ; and that she replied that
she had given it to Roush "
About noon that day, Mittman announced to the employees then working on
the first shift that the mill would be temporarily shut down at the end of that
shift because of a shortage of yarn and in order to attach to each of the three
machines then in operation a device to manufacture loopless toe stockings.
Mittman also informed the knitters and the other employees then at work that
they should leave their respective home addresses and telephone numbers with
Carlisle for they would be recalled as soon as the mill reopened" He then in-
structed Carlisle to telephone the employees on the other two shifts and inform
them of the shutdown.
Robert M. Kramer, Respondent's secretary, whose offices are located in Los
Angeles and who supervised Respondent's business in the interest of Kramer
Bros., Inc., testified in the first instance as a witness for the General Counsel.
As such witness, Kramer testified that commencing early in January 1951, and
until about the 22nd of that month, the day the mill was shut down, he con,
ferred a number of times, mostly by telephone, with his brother, Arnold, who,
during this period, was either in New York or in Philadelphia, regarding the
advisability of closing down the knitting machines in order to attach certain
newly popularized, loopless toe devices to the knitting machines ; that the
decision whether to close the mill was contingent upon the receipt from Lieber-
kneckt of a certain cutting tool necessary to make the transition ; that Mittman
told him "the Lieberkneckt people were being besieged on all sides for the tool
and he was having difficulty in persuading" Lieberkneckt to send the tool to
Respondent's mill ; that he then enlisted Arnold Kramer's aid in order to get
the tool ; that the tool became available to Respondent on January 22, the day
of the shutdown, it having arrived in Anaheim a few days prior thereto ; that
the tool was first used to change over Mittman's California Hosiery Company's
machines ; that prior to the arrival of the tool on January 16, he, Mittman, and
Driess discussed the advisability of shutting down the mill instead of changing
over one machine at a time and keeping the other two machines operating ; that
either Driess or Mittman, or both, recommended a complete shutdown of the mill
while, on the other hand, he "was not too certain" whether he "wanted to shut
it down entirely at that time" ; that Mittman and Driess advised a complete
shutdown so as to expedite the change over for Lieberkneckt was "demanding"
the return of the tool "as quickly as possible" ; that he did not favor the shut-
9 From about January 1, 1951, until some time in the late spring or early summer of
that year, Burley was superintendent of the mill or its production manager.
"Mittman testified that this conversation took place on January 23 and his version
thereof is slightly different from that of Carlisle. Upon the entire record in the case the
undersigned is convinced, and finds, that the conversation took place on January 22 as
testified to by Carlisle and that her version thereof is substantially in accord with the facts.
PI Mittman testified that he informed the knitters of the shutdown at about 9 or 9 : 3O
in the morning and informed the other employees of it about 3 : 30 in the afternoon.
Upon the entire record in the case , the undersigned finds that all the employees were in-
formed of the shutdown at about noontime.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
down because he desired "production"; that when the tool arrived on January 16,
either Driess or Mittman informed him of its arrival and that the tool would
first be used on Mittman 's machines ; that "sometime during the morning" of
January 22, Mittman telephoned him saying that the tool was available to
Respondent ; that Mittman then asked whether it was agreeable to him to
shut down the mill since Driess advised it ; and that he approved the shutdown."
As a witness for Respondent, Kramer testified that throughout his numerous
talks with Mittman and Driess, prior to the arrival of the tool, about shutting
down the machines, he told each that he did not favor a shutdown in order
to equip the machines with the loopless toe devices but rather favored changing
one machine at a time; that Driess was of the opinion that a shutdown was abso-
lutely necessary and Mittman, at first, was "more or less non-committal" but
later, "sort of went along with Driess" ; that at a conference with Mittman and
Driess on the evening of January 16, Driess informed him that the tool had
arrived that day and "recommended shutting down all of the machines in order
to make the changeover" ; 1e that when Driess pressed him for a "definite
answer" he told Driess that he wanted to talk the matter over with Arnold
Kramer; that Driess then suggested that he (Driess) would write Arnold
Kramer about the entire matter, which suggestion he approved ; that Driess
wrote Arnold Kramer and the latter telephoned him "about noon" on Friday,
January 19, and said, to quote Robert Kramer, "I was taking charge out here,
and if that is what Driess and Mittman wanted, that any decision I would
make would be satisfactory to him" ; that several hours after talking with
his brother, he telephoned Mittman's mill in an attempt to talk to Mittman ;
that when the operator informed him that Mittman "was out of the city for
the day," he cancelled the call ; that he made no attempt to reach Driess on
the telephone ; that the next day, Saturday, he again was unsuccessful in reach-
ing Mittman by telephone, but this time left word, either at Mittman's home
12 Kramer 's testimony regarding this telephone conversation is as follows :
Q. (By Mr O'Brien ) Did you order a shut-down of the plant on January 22, 1951?
A. Yes.
Q. To whom did you issue this order?
A. To Mr. Mittman.
Q. Was it orally or in writing?
A Orally.
Q. On the telephone or-
A. On the telephone.
Q. (By Mr. O'BRIEN .) The date of your telephone conversation with Mr. Mittman?
A. It was a Monday in January.
Q. About what time of day?
A. In the morning.
Q. Can you place it any better than that?
A. No. Sometime in the morning.
Q. Who initiated the phone call?
A. Mr. Mittman.
Q. What did he say?
A. He said that the cutting tool for the loopless toe attachment was available and
that the tool was sent out here by Lieberkneckt with the understanding that we would
cut the tool and get the work finished as quickly as possible ; that the best way to
accomplish this would be to shut -down the mill.
Q. And what did you say?
A. That he was running the mill ; if he wants to shut it down, he should shut it
down.
is Kramer testified that, although he had been at the mill for several hours during the
day, neither Driess nor Mittman told him the tool had arrived until the three conferred
together that evening . Mittman testified that when Kramer arrived at the mill that day
(he believed it was about 10 o'clock that morning because that was the hour Kramer
usually arrived at the mill ) he informed Kramer that the tool had arrived.
TRIMFIT OF CALIFORNIA, INC . 717
or at his mill, for Mittman to call him ; that about 7: 30 Monday morning Mitt-
man called him at his house; that when he told Mittman, "I [spoke] to Arnold
on Friday, and if you [feel] that the mill should shut down, [you] should
shut down. [You have] my permission to so do"; that Mittman's only comment
was, "0. K."; and that about eleven o'clock that morning, Mittman again tele-
phoned, told him the mill was shutting down, and he replied "all right."
Although Kramer, Mittman, and Driess discussed the proposed shutdown
of the machines on numerous occasions, Kramer admitted that at no time did
he ever ask either Mittman or Driess, or did either tell him, how long the mill
would be down or did they discuss "the mechanics of shutting down" ; and at no
time prior to the shutdown did his brother, Arnold, inquire of him how long he,
Mittman, or Driess contemplated the machines would be shut down, how much
production would be lost by shutting down, or the relative advantages of shutting
down all the machines simultaneously as against changing over one machine
at a time.
Kramer further testified that after the mill had been closed, his brother,
Arnold, telephoned, and said he had received word from Alfred Hoffman, the
Union's general secretary-treasurer, that the mill had been shut down ; that
he told his brother that Hoffman's statement was correct; and that his brother
did not inquire how long the mill was to be closed.
Mittman testified that from the very day the decision was reached to manu-
facture loopless toe hosiery and after the tool and parts had been ordered," he
informed Kramer that he favored shutting down all knitting machines simul-
taneously and never receded from that position. Mittman further testified that
between January 7 and January 15 or 16, he had several telephone conversations
and two personal talks with Kramer regarding shutting down the knitting ma-
chines in order to effect the changeover, and each time he recommended shutting
down all the machines at one time telling Kramer that he had "obligated him-
self" to Lieberkneckt to return the tool immediately, and that, in his opinion,
the only way he could carry out his Lieberkneckt commitment was to shut down
all the machines at one time.
Regarding the January 16 evening conference with Kramer and Driess, Mitt-
man testified he "strongly recommended" to Kramer shutting down all the
machines because it was "the only way . . . we could do a good job"; that in
support of his position he pointed out to Kramer, that "we were also short on
yarn and since we didn't have enough yarn there was no use breaking our neck,
and there was no use keeping the mill running, with the amount of nylon we
were receiving" ; that Driess stated that he could not perform a satisfactory
job changing over the machines unless he was relieved of his other duties ; 16
that Kramer "didn't commit himself . . . because he wasn't sure of what he
was going to do" . . . and asked us . . . [to] cut the first machine and find
out whether we still couldn't" change the machines one at a time ; and that the
conference concluded when Driess suggested writing to Arnold Kramer and
Robert Kramer saying, "Before I agree, [to shutting down the machines] I
would like to talk to my brother about it."
Mittman further testified that Kramer telephoned him on January 17 and 18,
inquiring how "we were progressing on the machine we were" changing over; 1e
14 This, Mittman places as taking place early in January.
36 At that time Driess not only was erecting a machine in the Respondent 's mill fo!
Lieberkneckt but also was employed by Respondent as a machine fixer.
11 According to the bills rendered to Respondent by Driess for work he had performed
for it, exclusive of erecting machines for which he was compensated by Lieberkneckt, the
work of changing over to loopless toe was started on January 17 and was being performed
on the machine then being erected.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that when he arrived at home at about 9 o'clock Saturday night, January 20,
he was told that Kramer had tried to reach him by telephone that day and
that Kramer had left word that he should call Kramer as soon as he got home ;
that sometime the next afternoon he called Kramer 's home but was not able to
get Kramer on the telephone; that about 7: 30 or 7: 45 Monday morning he was
successful in getting Kramer on the telephone ; that Kramer said , to quote Mitt-
man, "he had [spoken] to his brother Arnold and he said, 'You got your wish
granted you can do the work as you see fit"'; that he immediately went to the
Respondent's mill and told Driess that he had received permission to do the
work "as we wanted to do it," and therefore "I am going to shut down the
machines."
Driess testified that early in January, after Mittman and Kramer had in-
formed him that they and Arnold Kramer were interested in equipping Respond-
ent's machines with the loopless toe devices he telephoned to an official of
Lieberkneckt in Reading, Pennsylvania, and, after ascertaining certain facts
regarding the mechanics for the changeover, he was told by that official that
the necessary tool and parts would be shipped to him provided he would agree
to work on all Respondent's machines at one time thereby making the tool avail-
able to other customers of Lieberkneckt without any undue delay ; that immedi-
ately after completing the aforesaid telephone conversation, he told Kramer and
Mittman the substance of his talk with the Lieberkneckt official, the official's
promise to send the tool and parts provided he would do all Respondent's ma-
chines simultaneously and then work on Mittman's machines simultaneously, re-
turn the tool as soon as possible, and of his promise to shut down all the machines
so that the job could be done expeditiously ; that Kramer and Mittman said, "that
is what we want. You get the tool" ; that when he asked, "what about the
shut down? Can I do it?"; Kramer replied, "I don't know if I can do it. I
need the work. But we will decide when you get the tool" ; that as soon as the
tool arrived he commenced the necessary changeover on the machine then being
erected ; that on January 16 he advised Kramer and Mittman that in order to
do a satisfactory job and expeditiously it would be necessary to shut down all
the machines ; that Mittman agreed with him ; that at the January 16 evening
conference it was agreed between the three of them that he should write Arnold
Kramer and obtain the latter's "reaction" with respect to which changeover
method to be employed ; and that at about 8 o'clock in the morning of January
22, he was informed by Mittman that all the machines "were to be completely
shut down."
Kramer and Mittman each testified that he had no knowledge or information
that the employees had engaged in any activity in behalf of the Union prior
to the shutdown on January 22. This testimony is not credited. In the first
place, Kramer's testimony is not only replete with evasive answers regarding
matters obviously within his personal knowledge and with numerous self-con-
tradictory statements, especially when he was under examination by the General
Counsel, but his demeanor while on the witness stand clearly evidenced to the
undersigned a desire to withhold the true facts of this case. Mittman, likewise,
was neither a frank nor a straightforward witness. For example, Mittman
testified that he did not know of the Union's meeting of January 21 until the
evening of January 22, when he was told of it by Hubbard, whereas Carlisle's
creditable testimony reveals that he questioned her about her giving the em-
ployees' names and addresses to Roush prior to announcing the closing of the
will.
Even if there was no direct evidence of Kramer's and Mittman's knowledge of
the employees' union activity prior to the shutdown, it is reasonable to infer from
TRIMFIT OF CALIFORNIA, INC. 719
the fact that for a long period of time Ludwig and others openly discussed and
openly solicited members for the Union within Respondent's small mill located in
a rather small community, that the Respondent's managerial officials knew of
the employees' union activities prior to the shutdown 14
Furthermore, the immediacy with which the plant was closed following the
Union's first open meeting leads to the conclusion that Respondent's officials knew
of that meeting before the decision to shut down the mill was reached. This
conclusion becomes inescapable when consideration is given to the fact that
throughout the numerous discussions between Kramer, Mittman, and Driess and
during Arnold's and Robert Kramer's several long distance telephone conversa-
tions, regarding the changeover to the manufacture of loopless toe hosiery, the
main question under discussion was whether to close down all machines at one
time or one machine at a time and not whether to close down the entire mill. In
fact, Driess' letter of January 17 to Arnold Kramer, which was written as a re-
sult of the indecisive January 16 meeting between Kramer , Driess, and Kramer,
stated in part, "In order to make the changeover in the fastest possible time, it
will be necessary to shut down the machines so that I can work undisturbed, and
I recommend that a shutdown be effected as soon as possible," and concluded with
the request that Arnold Kramer immediately advise Driess "regarding the advis-
ability of shutting down all the machines so that I can proceed immediately with
the loopless toe changeover."
That Arnold Kramer was unaware that the machine changeover would neces-
sitate the closing of the mill, is clearly revealed by the credible and uncontra-
dicted testimony of Francis B. Ertel, a national representative of the Union, who
testified that when he called upon Arnold Kramer in New York on May 10, 1951,
to complain about the mill's shutdown and about certain other conditions then
existing at Respondent's establishment, Arnold Kramer denied ordering the
shutdown or knowing that the mill had been closed prior to being so informed by
Hoffman.
Moreover, it is reasonable to conclude, which the undersigned does, that Robert
Kramer, who is a man of acumen and of wide business experience, would not have
inquired of either Mittman or Driess, or both, during their many discussions, how
long the mill would be closed, if during these talks the question of closing the
,entire mill was under discussion . This is especially true because Robert Kramer
testified he was anxious to obtain "production." Admittedly, Robert Kramer
never made this inquiry of Mittman or Driess, nor did Arnold Kramer make it of
Robert Kramer.
Furthermore, the record does not substantiate the Respondent's contention that,
because of the lack of sufficient hosiery on hand to inspect, mend, loop, and other-
wise process, the closing down of the knitting machines necessitated the closing
of the entire mill. The credible evidence, in fact, points to the contrary 18 Nor
is the Respondent's further contention that the shutdown was necessary because
the knitting machines often broke down due to the inefficiency or carelessness on
the part of the operators and hence the machines had to be completely repaired,
supported by credible evidence.
Pl See Angwell Curtain Company, Inc., v. N. L. R B., 19,2 F. 2d 899 (C. A. 7) ; N. L. it. B.
V. Abbott Worsted Mills, Inc, 127 F. 2d 438 (C. A. 1) ; Quest-Shon Mark Brassiere Co.,
80 NLRB 1149; Kallaher and Mee, Inc., 87 NLRB 410; F. W. Woolworth Company, 90
NLRB 289; N. L. it. B. Y. Link-Belt, Inc., 311 U S. 584, 602.
1s The record does not show how long the sewers, loopers, menders, inspectors, and the
other such employees would have remained on the job while the knitting machines re-
mained idle The record does indicate, however, there were at least 5,000 dozen stockings
awaiting praeessing at the time of the shutdown.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the record as a whole, the undersigned is convinced, and finds, that the
mill was shut down on January 22, 1951, and all employees locked out for the pur-
pose of (1) ridding the mill of all known leaders of the Union's movement;" (2)
discouraging membership in the Union; and (3) evading Respondent's statutory
duty to bargain collectively with the Union 20 The undersigned further finds that
by such locking out the Respondent violated Section 8 (a) (3) and (1) of the Act.
These findings are buttressed by the fact that when the mill was about to reopen,
Respondent wrote almost identical letters 21 to each employee, except to the hand-
ful who worked in the mill during the shutdown helping Driess and others clean,
repair, and equip the machines with the loopless toe devices, stating therein that
because Respondent was unable to ascertain at the time of the mill's closing how
long it would be closed, "you were discharged" on January 22, and "if you are
desirous of being re-employed by us kindly file your application for employment
at our office." It goes without saying, that an employer who temporarily closes
his mill to make certain machine adjustments does not discharge his employees,
especially highly skilled and hard-to-obtain employees, unless he has some
ulterior motive, such as in this case, to evade his obligations under the Act.
C. The refusal to bargain collectively with the Union
1. The appropriate unit
The complaint alleged and the answer admits 22 that Respondent's em-
ployees, excluding supervisors as defined by the Act, at all times material
herein constituted, and now constitute, a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the Act, with
respect to grievances, rates of pay, wages, hours of employment, and other
conditions of employment, and that the said unit insures to the said employees
the full benefit of their right to self-organization and collective bargaining
and otherwise effectuates the policies of the Act.
2. The Union's majority status in the aforesaid unit
At the hearing, there was introduced in evidence by the General Counsel a
list prepared by Respondent containing the names of all the employees in the
unit hereinabove found appropriate. The list shows that on January 22, the day
of the shutdown, Respondent had in its employ 36 persons in the said unit 23
On behalf of the General Counsel there were offered and received in evidence
28 signed cards, each bearing a date in January 1951, expressly authorizing the
Union to represent the signer thereof for the purposes of collective bargaining.
The genuineness of the signatures appearing upon the said cards was not ques-
tioned nor challenged.
The undersigned has compared the names appearing upon the said cards with
the list submitted by Respondent and received in evidence and finds that as of
January 22, 1951, 22 employees in the appropriate unit had signed cards expressly
19
As more fully discussed below, certain union leaders were refused reinstatement when
the mill reopened.
29 This refusal is discussed more fully below.
21 Except for certain deletions in some letters, due to the fault of the copyist, and as to
when the addressee was to file new application for employment, the letters are identical.
22 By its failure to deny or otherwise aver.
23 In reality, the list is the payroll for the week ending January 27, and includes the
names of Ray Ingram and Alexander Evasew. The former was a part-time employee and
the latter was not employed until after January 22, and voluntarily quit Respondent's
employ on or about January 24 The parties stipulated at the hearing that Ingram, and
Eva sew were not to be included in the unit
TRIMFIT OF CALIFORNIA, INC. 721
designating the Union as their collective bargaining representative ." The under
signed accordingly finds that as of January 22, 1951 , and at all times thereafter,
the Union was the duly designated collective bargaining representative of Re-
spondent 's employees in the unit found appropriate . Pursuant to Section 9 (a)
of the Act, the Union was, therefore, on January 22, 1951, and at all times there-
after, the exclusive representative of all the employees in such unit for the pur-
poses of collective bargaining with respect to grievances, rates of pay, wages,
hours of employment , and other conditions of employment.
3. The refusal to bargain
On January 30, Theodore Spuller, the Union's midwest district manager, tele-
phoned Kramer and informed him that he had been sent to Los Angeles' to
investigate the situation then existing at Respondent's mill and arranged to
meet with Kramer that day for luncheon.
At the luncheon, after a discussion had been had with respect to the ma-
chinery installed at Respondent' s mill and the type of hosiery being manufac-
tured there, Spuller told Kramer that he was of the opinion that the employees
had been locked out. Kramer replied that the employees were not locked out ;
that the machines were shut down and the employees laid off so that the loopless
toe devices could be attached to the machines ; that, although he did not know
how long it would take to make the changeover, there was a "possibility that it
would take two or three or four weeks" ; that as soon as that work was com-
pleted the employees would be recalled except those who had not performed
satisfactory work. When questioned by Spuller as to the identity of those not
to be rehired, Kramer said that he did not know the names of those persons,
adding that Mittman would be the person who would decide that issue.
Spuller then told Kramer that the Union represented a majority of the workers
at the Anaheim plant, that "they had signed application cards with our organi-
zation , and they want us as a bargaining representative ." Kramer replied, to
quote from Spuller's credible testimony,RB
Mr. Kramer told me he felt the plant was too small to have organization.
He said if he was me he would suggest to me that we devote our time to
larger plants throughout the country. That he felt . . . nothing could be
arrived at organizing a small plant such as his plant. He said, too, that I
should come back in another year or two and he felt the plant would be
larger and that maybe at that time we could get together on some
understanding.
Spuller then informed Kramer that the size of the plant was not the deter-
mining factor as to whether the plant should be organized but rather the desires
of those employed therein, and since those employees wanted the Union to repre-
sent them "it was our job to see that they were organized and" represented.
24 One card is dated January 14, two dated January 15, two dated January 20, 10 dated
January 21, and 7 dated January 22. In addition, 1 card is dated January 23, 3 dated
January 24, 1 dated January 25, and 1 dated January 29.
25 Spu'.ler's headquarters in January 1951 were, and still are, in Milwaukee, Wisconsin.
25 Kramer was questioned about this meeting with Spuller only when he was being exam-
ined by the General Counsel His testimony regarding this meeting consists mainly of a
series of "I don't recall." In short, Kramer testified that he could not recall anything of
any importance that was said by him or by Spuller at this meeting For example, Kramer
testified he could not recall when the meeting took place ; whether the meeting was before
or after the mill's shutdown , whether Spuller requested recognition of the Union as the
employees' bargaining representative ; whether Spuller stated that the Union represented
the majority of the employees ; or whether Spuller requested commencement of collective
bargaining negotiations.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Spuller asked Kramer to negotiate a collective bargaining contract, the
latter replied that the mill was too small and the Union should not bother or-
ganizing small mills.
Spuller then requested, when it became evident to Spuller that Kramer would
not recognize the Union as the bargaining representative for Respondent's em-
ployees, that Kramer consent to an election, presumably to be held under the
Board's auspices. Kramer replied that this was a question which had to be
taken up with Respondent's attorney.
The meeting concluded when Kramer stated that he would get in touch with
Spuller and arrange "a social affair" so he could entertain Spuller and the
latter's wife, who had accompanied Spuller to Los Angeles. Several evenings
later, Kramer and his wife entertained Mr. and Mrs. Spuller, but no discussion
was had pertaining to the Respondent's mill or its employees.
On February 6, Kramer and his counsel, Alfred Gitelson, Esquire, met at the
Board's offices with Damm and a Board field examiner.' There, Damm informed
Gitelson, who acted as spokesman for Respondent, that the Union represented
the majority of Respondent's employees and then requested Respondent to recog-
nize the Union as their collective bargaining representative. Gitelson replied,
according to his own testimony, that the Union used wrong "timing" in filing
the petition for certification because the mill was then closed and Respondent had
but two or three persons in its employ, that as soon as the mill reopened, which
he believed would be in the near future, and the normal complement of persons
employed, Respondent would consent to an election. Gitelson then suggested
to Damm that he withdraw the pending petition and file a new petition at some
later date. Presumably on the basis of Gitelson's statements, the field examiner
suggested that Damm withdraw the petition. This Damm did, and his action
received the Regional Director's approval.
Gitelson denied that Damm stated at the aforesaid conference that the Union
represented a majority of Respondent's employees or demanded recognition of
the Union as the collective bargaining representative for such employees. Under
the entire record, the undersigned finds that Gitelson was mistaken and that
Damm made the claim of majority representation by the Union and a request
for recognition and collective bargaining."
Under date of April 7, Ertel, who for several months prior thereto had taken
charge of the Union's campaign at Respondent's mill, wrote Respondent stating
that the Union represented a majority of Respondent's employees and requesting
a meeting for the purpose of negotiating a collective bargaining contract.
On April 12 Gitelson and Ertel met at the offices of the Board's Twenty-first
Region and there conferred with a Board field examiner other than the one
who attended the February 6 conference. There, discussion was had, among
other things, relative to the claimed lockout of January 22, and Respondent's
refusal to reinstate certain employees upon the reopening of the mil128 Ertel
stated at the conference that the actions of Respondent were violative of the
Act and Gitelson contended otherwise. During the course of the conference,
Gitelson stated that the Union should file a petition for certification in order
27 On January 26 the Union filed with the Board's Twenty-first Region a petition for an
election and certification of representatives.
28 Damm testified, and the undersigned finds, that at the aforesaid meeting he might have
used the phrase "substantial number" or the phrase "substantial majority" when discussing
with Gitelson the question of the Union's majority status ; that, in his opinion, both phrases
are synonymous ; and that he often uses either phrase when he means "majority."
29 The original charge herein was filed on March 7, 1951, wherein the Union alleged the
lockout and the discriminatory refusal to reinstate four named employees upon the reopen-
ing of the mill.
TRIMFIT OF CALIFORNIA, INC. 723
to resolve the question of the Union 's majority status, that the Union either
withdraw its pending charge without prejudice or request the Board to withhold
processing it until after an election had been had , and that if either of the two
courses was adopted he would then enter into a consent election agreement "
Ertel refused to consider any suggestion looking toward an election, main-
taining that Respondent had violated the Act and therefore the Board should
process the charge which the Union had filed.
Under date of April 16 Gitelson wrote Ertel in answer to the latter's letter to
Respondent dated April 7. Therein Gitelson stated, among other things, that
Respondent denied that the Union represented the majority of Respondent's
employees (basing the denial on the fact that it had no information or knowledge
that the Union was, in fact , the majority representative ) ; that he would meet
with Ertel at any time mutually agreeable for the purpose of "reviewing your
evidence" with respect to the Union' s claimed majority status; that if the
evidence disclosed that the Union represented a substantial number of the
employees , he would recommend to Respondent that it enter into a consent elec-
tion agreement ; and that Respondent denied that it committed any unfair
labor practices.
Uncontroverted evidence establishes that as of January 30, when Spuller
requested Kramer to recognize the Union as the collective bargaining representa-
tive of Respondent's production and maintenance employees and deal with it as
such representative, the Union, in fact, was the duly designated representative
of the majority of said employees for the purposes of collective bargaining.
Under the circumstances , Respondent 's refusal to recognize the Union and to
deal with it, was a clear violation of Section 8 (a) (5) of the Act, unless
Respondent at that time had a bona fide doubt that the Union represented the
majority. The fact that Respondent did not have such a doubt is amply sup-
ported by the credible evidence.
Respondent's action in locking out and discharging its employees on January
22, within 24 hours of the Union's first open meeting, which action, as found above,
was violative of the Act and was taken for the purpose of (1) ridding the mill
of the leaders of the Union's organizational campaign ; (2) to avoid Respondent's
statutory duty to bargain collectively with the Union; and (3) discouraging
membership in the Union, clearly demonstrates that the refusal to bargain and
Respondent's subsequent demand that an election be held, were not based upon
any desire to resolve a bona fide doubt of the Union's majority.
Kramer (lid not claim on January 30 that he doubted the Union's majority
status, the most he endeavored to do was to persuade Spuller to organize a plant
of some other employer. Neither did Gitelson at the February 6 conference deny
the Union's majority status. The most that Gitelson did there was to persuade
Damm to withdraw the pending petition for certification by stating that Respond-
ent had but two or three employees and hence the Union's "timing" was wrong,
and to suggest that another petition be filed or a consent election agreement be
entered into after the mill reopened and full production commenced. Further-
more, Respondent made no disclosure at that conference that a draft letter had
been sent to Mittman on February 5, which, in turn, was to be sent, within a few
days,31 to all employees who were on the payroll at the time of the shutdown,
except certain employees who already had been rehired, advising the said employ-
31 Gitelson also suggested that all employees be permitted to vote, both those employed
at the time of the shutdown and those hired after, and that Respondent and the Union be
permitted to challenge the right of any particular employee to vote and have the challenges,
if any, disposed of after the election
a In fact, the letter to Dennis Fitzpatrick is dated the very day of the February 6
conference.
242305-53-47
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees that they had been discharged on January 22, and if they desired reem-
ployment they should file new applications on or before a certain date.82
Normally, an employer is not held in violation of the Act if he in good faith
questions the union 's majority status and asks to have the matter determined by
an election , since that is a conclusive means of establishing the extent of the
union 's strength . But here, Respondent resorted to serious unfair labor prac-
tices, the effect of which would have prevented the election from resolving the
issue of which Respondent purportedly was in doubt. Respondent thereby de-
stroyed the efficacy of the very method it was insisting upon by its refusal to
recognize and deal with the Union. Respondent's conduct clearly discloses that
its demand for an election was solely for the purpose of delay and to permit it to
effectuate the destruction of the Union's majority. Under the circumstances,
Respondent "has transgressed the bounds of permissible conduct to a sufficient
extent to permit . . . [ a conclusion ] that its refusal to bargain was as ill-
intentioned as its other actions." 33
The Board and courts have repeatedly and uniformly held where, as here, an
employer withholds recognition from a union which is entitled to it under the
Act until its status is established in an election, and at the same time proceeds
by unfair labor practices to undermine and destroy the union, that it reasonably
may be concluded that the employer's refusal to bargain stems not from an honest
doubt of the union's status but rather from a desire to avoid his obligations under
the Act 34
Any conceivable doubt in Respondent's mind as to the Union's majority status
was completely dissipated on or about February 17 when Hubbard told Mittman,
when the two were at the Santa Anita race track, that he had been informed that
.Al Respondent's employees belonged to the Union, except two knitters and the
wire of a knitter'"
Respondent's further contention that its refusal to bargain did not violate the
Act, since it merely exercised its right to demand an election, is without merit
under the circumstances disclosed by this record. It is well established that
neither an employer nor his employees have the i fight to demand that the Board
conduct an election for the Congress left to the Board the discretion to determine
how and when the bargaining status of an employee representative should be
ascertained38
Furthermore, had the Regional Director held the suggested consent election
and subsequently, but timely, learned of Respondent's unfair labor practices, he
would have been free to set aside the results of the election. Obviously, the
Regional Director cannot be compelled to conduct an election after be has reason
to believe that the results thereof will not reflect the employees' free choice, and
thus permit Respondent to benefit by its own wrongdoing. In N. L. R. B. v. Si m-
uel J. Kobretz, d/b/a Star Beef Company, 193 F. 2d 8 (C. A. 1), the court said,
regarding a case very similar to the instant proceeding.
32 The date mentioned in the letter varied according to the alleged need for the addressee.
33 Joy Silk Mills , Inc , v. N . L. R B., 185 F . 2d 732 (C A. D. C ). See also Frank Bros.
Co Y. N. L. R. B , 321 U S. 702 ; N L R. B. v Federbush Co., Inc., 121 F. 2d 954 (C. A. 2) ;
N L R. B v Louisville Refining Co , 102 F 2d 756 (C A 6).
34 See N L R . B v. Morris P Kirk cf Son, 151 F. 2d 490 (C A. 9) ; N L. R B v. Consoli-
dated Machine Tool Corp ., 136 F 2d 376 ( C A. 2) ; N . L. R B v . Remington Rand, Inc,
94 F. 2d 61 (C. A 2) ; N. L. R. B. v. Chicago Apparatus Co., 116 F 2d 753 (C. A. 7) ; Joy
Silk Mills v N. L. R B., supra.
3; Namely , Paul Reynolds , Hubbard. and Hubbard 's wife.
'IN L R B. v Falk Corp . 308 U. S. 453 ; N. L. R B. v Waterman S S Corp . 309 U S
206, Southern S S. Co v. N. L. R B, 316 U. S. 31 ; N. L R. B v Garfunkel, 126 F 2d
256 (C. A. 2).
TRIMFIT OF CALIFORNIA, INC. 725
It is true that the union , upon meeting such a refusal to bargain, first
adopted the course of tiling a representation petition for certification . . .
Later this representation petition was dismissed at the union 's own request.
But the right of employees to bargain collectively through an exclusive
bargaining representative is not conditioned upon an antecedent certification
by the Board where, as here, the majority status of the union is clearly
established otherwise , and the employer has no bona fide doubt of such
majority status, but seeks to delay bargaining negotiations while resorting
to various coercive tactics designed to dissipate the union majority support.
National Labor Relations Board v. Reed & Prince Mfg . Co., 118 F. 2d 874,
cert. den. 313 U. S. 595; National Labor Relations Board v. National Seal
Corp., 127 F. 2d 776; National Labor Relations Board v. Franks Bros. Co.,
137 F. 2d 989, affd. 321 U. S. 702; National Labor Relations Board v. Harris-
Woodson Co., 162 F. 2d 97 (C. A. 4).H7
Upon the entire record of the case , the undersigned finds that on January 30,
1951, and at all times thereafter, Respondent failed and refused to bargain col-
lectively with the Union as the duly designated representative of the majority
of the employees in the unit hereinabove found appropriate, in violation of Sec-
tion 8 (a) (5) of the Act, thereby interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
D. The discriminatory refusal to reinstate Dennis Fitzpatrick , James R. Ludwig,
Ruth C. Ludwig and Raymond Murphy
As found above , all employees who had not been reinstated prior to February
6, received letters over a period of about a week's time , notifying them of their
January 22 discharge and suggesting that those desiring reemployment file new
employment applications . All employees who sought reemployment and filed
new employment applications were hired except Fitzpatrick , the Ludwigs, and
Murphy. The complaint alleged that these four persons were refused reinstate-
ment because they engaged in certain protected concerted activities . The answer
denied that the refusal to reinstate the four named persons was violative of the
Act and affirmatively averred that each was refused reemployment because of
certain stated reasons. These discharges are discussed seriatim.
Dennis Fitzpatrick , a brother-in-law of Driess, was hired as a knitter by
Respondent on or about August 1, 1950," and worked continuously thereafter
until the shutdown on January 22, 1951. When Fitzpatrick first came to work,
the first knitting machine was in the process of being erected and the work
thereon had reached a point that the services of an experienced knitter were
needed to make the necessary adjustments and Fitzpatrick was assigned to
help Driess and his helper put that machine in good working order . When the
machine was ready for production, Fitzpatrick was the first knitter assigned
to it. Thereafter , Hubbard was hired and Fitzpatrick instructed him in the
operation of the mitre heel attachment. Shortly after Hubbard started in pro-
duction , Ludwig, who had been aiding in the erection of the first two machines
for about 6 weeks, was assigned as a knitter on the first machine, after receiving
instructions in the mitre heel operation from Fitzpatrick and Hubbard.
97 See also Frank Bros Co., v. N. L. R. B., supra ; N. L. R. B V. Bradford Dyeing Assn ,
310 U . S. 338 ; Int. Assn. of Mach. v. N. L R . B, 311 U. S. 72; D . H. Holmes V . N. L. R. B.,
179 F. 2d 876
ae Fitzpatrick began his apprenticeship in April 1927 About 4'i years later he became
a journeyman knitter and has been so engaged since
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fitzpatrick signed the petition which Landers drafted and circulated among
the knitters, openly discussed organizational plans with Ludwig and other knit-
ters, signed a union membership card on January 15, and attended the Union's
January 21 meeting.
The answer of Respondent averred that Fitzpatrick was not reemployed
because, during his employment with Respondent,
he was negligent, incompetent, and inefficient in the operation of his
machine. Upon the proposed reopening of the plant and upon receipt of
the letter. . . . Mr. Fitzpatrick called at respondent 's factory at which
time respondent's general manager (Mittman) advised Mr. Fitzpatrick that
he, Fitzpatrick, could be a better knitter than he had been and that he, the
general manager, would like to talk to Mr. Fitzpatrick. Mr. Fitzpatrick
thereupon turned around and immediately left and has never returned to
respondent's factory to discuss, request, or seek employment.
Mittman testified that when Fitzpatrick first started knitting Fitzpatrick
took an interest in the job but later lost it and hence Fitzpatrick' s workman-
ship became poor ; that when he remonstrated with him about the poor quality
of work Fitzpatrick was producing, Fitzpatrick merely shrugged his shoulders;
that on two separate occasions Fitzpatrick left his machine while on the
night shift and went home ; that one night, shortly before Christmas 1950,
he went to the plant, spoke to Fitzpatrick about the latter's "attitude about
working" and then told Fitzpatrick, "if you would make up your mind and get
out of that rut, I believe you could be a good knitter" ; that Fitzpatrick merely
replied, "Maybe you got something" ; that he also told Fitzpatrick on that
occasion that Fitzpatrick's machine "was run down" ; and that Fitzpatrick said
that was not his fault and refused to say whose fault it was even though he
pressed Fitzpatrick for the information.
Mittman further testified he had not decided not to reemploy Fitzpatrick prior
to his conversation with the Fitzpatrick which took place about the beginning of
the second week in February. In regard to this conversation, Mittman testi-
fied that when Fitzpatrick came to the office on that occasion he said to Fitz-
patrick, in the presence of Burley, "Well, you are just the man I wanted to
see" ; that Fitzpatrick, who "acted kind of nervous," said, "When do I go to
work?" to which he replied, "That depends on you. .. . I would put you to
work if you can guarantee me that you are going to be a better knitter than you
have been heretofore"; that Fitzpatrick "got mad" turned to Burley and said,
"Do you hear that? He don't want to give me my job back" ; and that Fitz-
patrick walked into the shop, picked up his tools, and left.
Mittman then testified that about a week later Fitzpatrick telephoned, asked
when he would be put to work, and he replied, "If you can assure me that you
are through playing around and willing to go to work, I will be willing to talk
to you and put you to work," and Fitzpatrick merely said, "You don't want me"
and hung up the telephone receiver. Mittman also testified that 3 weeks later,
Fitzpatrick came to Respondent's mill and said a representative of the Board
had suggested that he (Fitzpatrick) should speak to him about being reem-
ployed ; that he replied, "When you make up your mind that you want to work,
I will be glad to talk to you" ; and that Fitzpatrick responded by saying, "I done
my best," and the conversation ended when he replied, "It wasn't good enough."
Respondent also introduced evidence, mainly through the testimony of Hub-
bard, to support its further contention that Fitzpatrick was not rehired because
Fitzpatrick read books, magazines , and newspapers and wrote letters while on
duty and hence neglected his work. Fitzpatrick admitted that while on duty
TRIMFIT OF CALIFORNIA , INC. 727
he at times read newspapers, magazines , and read a portion of a book, and on
one occasion wrote a letter, but he denied that by so doing his work was neg-
lected. He testified that Hubbard and other knitters read, but not as ex-
tensively as he, while on duty. Whatever may be said of this conduct
of Fitzpatrick's, there is no credible evidence in the record it came to Mitt-
man's attention prior to his decision not to rehire Fitzpatrick or that such con-
duct played any part in Mittman's refusal to rehire Fitzpatrick.
Fitzpatrick also admitted leaving his machine on two occasions and going
home. It would serve no useful purpose to set forth here Fitzpatrick's reasons
for his actions on those occasions for the credible evidence clearly establishes
that he was not criticized by Mittman or by any other official for it. Further-
more those incidents occurred many months prior to the shutdown. The under-
signed finds that Fitzpatrick's conduct in leaving his machine and going home
was not a contributing factor in Respondent's refusal to rehire him.
Fitzpatrick testified that not having received any notification to return to
work for about 2 weeks after filing his application for reemployment," he tele-
phoned Mittman and asked to see Mittman ; that Mittman replied, "Yes, I will
see you, but there is nothing to talk about" ; that when he again stated he
wanted to see Mittman, the latter agreed to see him later that day ; that he
arrived at the mill at the appointed hour and was obliged to wait about three-
quarters of an hour before Mittman came into the office ; that when Mittman,
who was accompanied by Burley, saw him, Mittman asked, "What do you want?"
to which he replied that he wanted to know when he would be rehired ; that
Mittman responded, "I ain't got time to talk with you now. I got a shipment to
take care of"; and that Mittman and Burley then left the office."
During the ensuing 2 weeks, Fitzpatrick tried several times to reach Mittman
on the telephone but was unsuccessful. Finally, he got Mittman on the telephone
and arranged an appointment for the following day. Fitzpatrick testified that
when he arrived at the mill, Mittman asked what he wanted, that he said he
wanted to go back to work ; that Mittman replied, "You are not going to put
any words in my mouth. There is no work for you here. And if you can get work
some other place, I advise you to get it"; and that when he asked, "Won't I be
called back?" Mittman said, "You don't want to work and you never did want
to work. Any man that walks out and leaves the machine standing, I can't
bother with. We have too much money invested here."
Fitzpatrick favorably impressed the undersigned with the sincere, honest,
and straightforward manner with which he testified. As found above, Mittman
did not so impress the undersigned. Accordingly, the undersigned finds Fitz-
patrick's version of what was said by him and Mittman on the several occasions
when Fitzpatrick sought reinstatement to be substantially in accord with the
facts. The undersigned further finds that Fitzpatrick was denied reinstatement
because of his activities on behalf of the Union, as set forth in the record, and not
for the reasons advanced by Respondent. This finding finds support from the
context of a conversation Fitzpatrick had with Driess on March 29 wherein
briess, according to Fitzpatrick's credible testimony, advised Fitzpatrick to
"go back and get your job back. You are a good knitter. They need knitters.
... Why don't you do as the others did? They begged for their jobs and they
got them back." Fitzpatrick further credibly testified that Driess also warned
" The letter notifying Fitzpatrick to file a new employment application is dated Feb-
ruary 6 and he filed his application 2 or 3 days later.
10 On this occasion Fitzpatrick went into the plant', after the above had transpired, and
took his tools.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him on that occasion not to associate with Ludwig and Landers because they
were "trying to organize the place." 41
James R. Ludwig became a journeyman knitter in 1935, after an apprentice-
ship of about 41/2 years, and has been engaged as such , except for a 2-year per-
iod while working for a railroad and while in the Armed Services during the
last war. Ludwig was continuously employed by Respondent as a knitter from
July 1950 until the mill shut down. However, for about the first 6 or 7 weeks
of his employment Ludwig assisted Driess and his helper erect and put into
running condition the first two machines. Thereafter, Mittman assigned Lud-
wig to number one machine, which he operated until his discharge on January
22, 1951.42
Respondent's answer averred that Ludwig was not rehired because he was
"negligent, careless, inefficient, and incompetent in performing his duties." In
support thereof, Mittman testified that in the beginning of January 1951 he
commenced an investigation, because of the tremendous amount of poor work
then being produced, to ascertain the knitters responsible therefor ; that his
investigation, which was not completed until the end of January, revealed that
Ludwig produced more "seconds" than any other knitter ; that the extraordi-
nary amount of unsalable products coming off the machines was attributable
mainly to Ludwig ; that Ludwig neglected to keep his machine properly oiled
and cleaned ; that Ludwig "just couldn't handle the machine" ; that in Sep-
tember 1950 he was about to take Ludwig off the machine and either discharge
him or assign him to cleaning machines, when Hubbard interceded for Ludwig,
saying, "Give him a chance. He ha8 got a family"; 4S that at various times prior
to the shutdown he decided to either discharge Ludwig or assign him to clean-
ing machines ; that one particular evening in November, when Ludwig was on
41 Contrary to the General Counsel's contention, the undersigned finds that Driess was
not a supervisor , within the meaning of the Act, and hence his statements and activities
are not binding upon Respondent . However, Driess was very "close" to management, in its
confidence , and hence was in a position to ascertain its labor policies . Driess' remarks to
Fitzpatrick clearly reflect Respondent' s unconcealed attitude toward the four persons
refused reinstatement This is especially so when consideration is given to the manner
with which Landers was treated when he sought reinstatement : According to Landers'
credible testimony he called upon Mittman almost daily after receipt of the letter to file
an application for reemployment ; that each time Mittman gave him an unsatisfactory
reason for not rehiring him, that finally , on February 15, he said to Mittman , "Let's lay
our cards on the table . I want to know why I am not hack to work " ; that Mittman, after
some fencing , said, to quote Landers , "I evidently didn't like the job , wasn 't satisfied with
the job, or I wouldn't have instigated the formation of a union in the shop " ; that he asked
Mittman if that was the reason he was not recalled to work, and Mittman replied, "No" ;
that Mittman then said the petition for membership in the Union which was circulated
in the plant early in January , was in his handwriting and he had asked the knitters to
sign it; that he told Mittman he was withdrawing from all union activity ; that Mittman
replied that his union activities played no part in not being rehired ; that Mittman finally
said he would call Kramer and ascertain whether he could be rehired ; and that several
days later be was put to work. Landers also testified , and the undersigned finds, that
except for the three knitters refused reinstatement , he was the last knitter to be rehired.
Despite Kramer's testimony that he was never consulted about whom to hire or discharge.
Mittman did , in fact, secure Kramer's permission to rehire Landers.
as At the start of operations , Fitzpatrick , Hubbard, and Ludwig operated number one
machine ; each having a separate 8-hour shift When number two machine was put into
operation , Hubbard was transferred to that machine and was replaced on number one by
Reynolds
3 Ludwig testified , and the undersigned finds , that on this occasion be, Reynolds, and
Fitzpatrick were reprimanded jointly by Mittman because of the untidy condition of the
machine ; that at no other time was he reprimanded by any supervisor ; and that no super-
visor, including Mittman, ever threatened him with disciplinary action.
TRIMFIT OF CALIFORNIA, INC. 729
the second shift, he visited the mill, saw that Ludwig's machine had a smashup,
decided then and there to discharge Ludwig, but Howard Robson, the then as-
sistant manager, interceded on Ludwig's behalf and therefore he did not take
the intended action ; and that on or about February 1, while the mill was shut
down, he finally decided not to reemploy Ludwig because of Ludwig's poor work
and because of the poor condition into which Ludwig allowed his machine to get.
Reynolds testified that he alternated the first and second shifts with Ludwig
and Fitzpatrick worked the third shift: 44 that Ludwig and Fitzpatrick failed
to keep the machine properly oiled and cleaned ; that each would leave broken
or bent needles in the machine; and that because of Ludwig's or Fitzpatrick's
carelessness and the unsatisfactory manner in which they oiled and cleaned
the machine, his production suffered.90
Ludwig denied that he failed to keep his machine in proper running order,
that he neglected to oil and clean it properly, or that the number of "seconds"
and "waste" made by him was due to his carelessness, inefficiency, or incompe-
tency. He admitted that during the first few months of his employment, he, like
every other knitter there in Respondent's employ, produced an extraordinary
amount of "seconds" and "waste." Ludwig contributed this to the fact that
the machines were new and not as yet "broken in"; that Driess insisted that
the knitters continue to allow the machines to run when "press offs" or "waste"
appeared so that Driess could ascertain the cause thereof and try to remedy
it ; that the mill's air-conditioning system was faulty and at times it would
either cease functioning entirely or would operate improperly ; 4° that he com-
plained to Robson and Driess about the faulty air-conditioning equipment and
about the adverse effect it was having on his production ; that despite these
complaints the air-conditioning equipment was not properly repaired; that
Driess did not repair the machines properly ; that in spite of these unsatis-
factory conditions, his production was as high as that of the other knitters ;
and that during the first 3 weeks of January, his production record was higher
than for any other period of his employment with Respondent.
Hobson testified that the "seconds" and unsalable hosiery produced during
his tenure of employment with Respondent were not due to the inefficiency, in-
competency, or carelessness of the operators, but were due mainly (1) to the
imperfected mitre heel attachments attached to the machines; (2) the ma-
chines were not being kept in proper repair by Driess,4' (3) Driess' insistence
that the operators not stop the machines in order to check a "press off" but
continue to operate the machines so that he (Driess) could locate the reason
44 This arrangement started at Fitzpatrick 's special request sometime in November or
December 1950 Prior thereto these three operators alternated the three shifts.
45 For the purpose of cleaning and oiling a machine, each of the three operators assigned
to the machine was responsible for cleaning and oiling a designated third of the machine.
It is inconceivable to the undersigned , how Reynolds could have produced satisfactory
hosiery, as Reynolds and Respondent each contended at the hearing that he did , if two-
thirds of the machine was not properly cleaned and oiled . Reynolds, like Hubbard, ex-
pressed antipathy for the Union and its adherents . Reynolds testified that he disliked
Fitzpatrick . Under these circumstances, coupled with their apparent lack of candor while
on the witness stand, the undersigned has given no credence to the testimony of either
Hubbard or Reynolds unless it is supported by credible evidence
N0 The temperature must be kept at a certain fixed degree when nylon hosiery is being
manufactured . The slightest change in temperature produces an adverse effect upon the
yarn being "worked." thereby causing "seconds ," "waste," or "press-offs."
4'T Robson testified without contradiction , and the undersigned finds, that Mittman for-
bade him to act as machine fixer and delegated that job to Driess and that Driess did not
fix the machines properly.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the "press off"; ' and (4 ) the unsatisfactory manner in which the knitting
machines were erected by Driess.
Respondent's contention that its refusal to reinstate Ludwig was due to the
careless, incompetent, and inefficient manner in which Ludwig operated the
machine and to his unsatisfactory production record, is not supported by the
record. In the first place, the production records received in evidence clearly
indicate that Ludwig produced as much, if not more, hosiery, during his employ-
ment as knitter with Respondent, than the other knitter .41 Secondly, the bills
rendered by Driess to Respondent, covering the period prior to the shutdown, for
fixing and repairing the machines due to the "carelessness" of the operators, dis-
close that Driess spent more time fixing and repairing the machines which were
operated by persons other than Ludwig and Fitzpatrick.
Upon the record as a whole, the undersigned finds that Ludwig was refused
reinstatement after the mill reopened because he had engaged in protected con-
certed activities with his fellow employees and not for the reasons advanced by
Respondent. The undersigned further finds that by such refusal to reinstate,
Respondent violated Section 8 (a) (3) and (1) of the Act.
Ruth C. Ludwig has been employed, except for the period from 1941 to 1947,
as a mender of ladies' hosiery. Immediately prior to being employed by Respond-
ent in August 1950, Mrs. Ludwig worked as a mender for about 2 weeks in Mitt-
man's mill.
In support of Respondent's averment that Mrs. Ludwig was not recalled after
the mill reopened because "she refused to take orders, was insubordinate, inter-
fered with the efforts of Respondent to systematize plant, interfered with
co-workers, was incompetent, negligent, and inefficient," Mittman testified
that he was not satisfied with the quality of her work ; that in December,
he sent Marjorie Booth, an employee of his mill, to Respondent's mill for about
2 days for the purpose of instructing Mrs. Ludwig and the other menders 80 in the
use of a mending board; that by using the said board the menders could produce
twice the amount of work they had been producing ; that Booth reported, Mrs.
Ludwig "seemed to be against using the board" ; that Burley told him that Mrs.
Ludwig said the use of the board "was the wrong way" to mend ; that after dis-
(overing that the menders were not using the board, he asked them the reason,
and the menders informed him that they preferred not to use it ; and that he did
not recall Mrs. Ludwig after the mill reopened because of "her insubordination
and her work wasn't satisfactory." 61
Mrs. Ludwig admitted that Mittman once, "a pretty long time before the layoff,"
informed her that her mending was terrible. She testified, and the undersigned
finds, that Robson would "time and time again" remark to her that her mending
was fine; that quite often Burley would also compliment her for performing good
work ; that on one occasion Kramer, who had been watching her "for some time"
48 Robson testified , and the undersigned finds, that regardless of his instructions to the
operators, and their desire to eliminate waste and " press offs" because they were piece-
workers and their compensation suffered because of the "press offs" and other waste, Driess
Insisted, and Mittman permitted Driess' insistence to prevail, that the operators allow the
machines to operate until the reason for the "press offs" was ascertained.
'0 The only evidence introduced that Ludwig produced a vast amount of "seconds" and
unsalable merchandise, was Mittman's unsupported, unreliable , and unconvincing testimony,
and hence Respondent's contention that because Ludwig produced more "seconds" and
other faulty hosiery than the other knitters, Ludwig's production records do not properly
reflect his qualification as a knitter, is without merit.
E0 These were learners.
61 On cross-examination, Mittman added another reason for not recalling Mrs Ludwig ;
that is, because it is his policy when a man and wife are working for him and one spouse
is discharged, he discharges the other.
TRIMFIT OF CALIFORNIA, INC. 731
complimented her for doing good work ; that about a month before the shutdown,
when she and Eleanor Barnaby were the only menders in the mill, the mending
board was introduced into the factory ; that the board could only be used to repair
snags ; that she, the only invisible mender in the mill, could not use the board in
her work because to do proper invisible mending a cup was needed ; and that
Mittman never told her to use the board even though Mittman visited her depart-
ment from time to time and saw that she was not using it.
When Robson was asked by the General Counsel, whose witness he was, his
opinion of Mrs Ludwig's ability as an invisible mender, he replied that she did
"the finest work I have ever seen with [the] exception of one person" who is an
instructor.
The undersigned credits the testimony of Robson and finds that his testimony
is substantially in accord with the facts.
The credible evidence with respect to Mrs. Ludwig, as epitomized above, clearly
shows that Mrs. Ludwig was not an unsubordinate employee, an inefficient
worker, or a person guilty of the reprehensible conduct in which Respondent
averred she had engaged. It is thus clear that the failure to recall her when the
mill reopened was for reasons other than those advanced by Respondent. Under
the circumstances, coupled with Respondent's antipathy for the Union as revealed
by the entire record, the undersigned concludes and finds that Mrs. Ludwig was
refused reinstatement because she had engaged in protected concerted activities
with her coworkers. The undersigned further finds that by such refusal to re-
instate, Respondent violated Section 8 (a) (3) and (1) of the Act.
Raymond Murphy ' commenced his apprenticeship in 1924. Three years later
he became a journeyman hosiery knitter and has followed that trade ever since,
except for a period of about 21/2 years immediately preceding his employment by
Respondent. On November 12 or 13, 1950, Murphy was employed as a knitter by
Respondent and worked continuously thereat until the shutdown, except that
during the first few weeks of his employment he was assigned to an oiling and
cleaning job.
Murphy signed the petition drawn up by Landers which was circulated among
the knitters, signed a union membership card on January 20, attended the union
meeting of January 21, and attended another union meeting held the following
week.
Respondent's answer avers that Murphy was not recalled upon the reopening
of the mill because during the course of his employment he "was negligent, care-
less, inefficient, and incompetent," and for the further reason that, even though
Respondent sent him a letter (dated February 7) to report for work, he failed
to "file an application for reemployment."
Respondent, under date of February 7, wrote Murphy to file an application if
he desired reemployment. Pursuant thereto Murphy appeared at Respondent's
mill on February 12, and filled out an application and immediately handed it to
Mittman 's daughter , who had succeeded Carlisle as office clerk.
Mittman testified that prior to Murphy's employment by Respondent, Murphy
had worked for him, or under his supervision, for approximately 11 years during
which time Murphy proved to be a competent knitter ; that while in Respondent's
employ Murphy made frequent mistakes which he attributed to the fact that
Murphy had been away from the trade for a few years, coupled with the fact that
Murphy never had operated a machine such as used by Respondent ; that he was
desirous of recalling Murphy when the mill reopened, but did not do so because
when he asked Hubbard in the latter part of February regarding Murphy's
12 Also referred to in the record as Ray Murphy
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whereabouts, Hubbard told him that it was his (Hubbard's) understanding that
Murphy had returned to his former job with a certain sporting goods concern;
that he later checked with some other persons and was informed that Murphy
was employed by Redlands Hosiery Company at Redlands, California ; and that
because Murphy had obtained employment elsewhere he decided that Murphy
was no longer interested in being in Respondent's employ. Mittman testified that
had Murphy desired to work for Respondent he would have rehired Murphy.
Murphy testified, and the undersigned finds, that after being assigned to the
No. 3 machine, which had just been put into operation, he received instructions
from Driess as to how to operate it ; that the first week of instructions he had
some "difficulties" with its operation and when he reported it to Driess the
latter replied, "Think nothing of it"; that on another occasion, because some
one had left a door open, thus permitting cold air to enter the knitting room
and thereby adversely affecting the machine, he had some minor trouble with
the machine ; that he also had "a lot of" trouble, which all the knitters had, in
operating the mitre heel attachment ; and that no supervisor ever said that the
difficulties he encountered were due to his incompetency.
Murphy further credibly testified that on the day of the shutdown he asked
Burley "what the deal was" ; that Burley reassuringly replied, "You will be
called back. . . . They are going to do a little repair work" ; that around Feb-
ruary 1, not having been recalled to work, he went to the mill and picked up
his tools ; that while in the mill obtaining his tools, Hubbard asked to purchase
his oil can ; that when he declined to sell it, Hubbard said, "You better sell it.
You won't be needing it any more" ; 68 that around March 1 he went to mill
three or four times looking for Mittman in order to learn if he would be recalled;
that each time he was informed by Mittman's daughter that Mittman was at
Mittman's mill or else to lunch ; that on the same day he went to Mittman's mill
three or four times looking for Mittman and each time was informed that Mitt-
man was at Respondent's mill; and that he was unable to see Mittman that day.
Respondent's defense that Murphy did not file an application for reemploy-
ment, and hence Respondent believed that Murphy did not desire reemploy-
ment, is not supported by the record." Mittman's testimony that the reason
he did not recall Murphy because he had heard, in the latter part of February,
that Murphy was employed at Redlands Hosiery Company, is palpably false for
Murphy did not start his employment at that plant until sometime in April or
May. Likewise, Respondent's contention that it was under the impression that
Murphy had returned to his former job at the sporting goods company and did
not desire to be reinstated is untenable because (1) on March 8, it received a
copy of the original charge filed herein wherein Respondent was charged, among
other things, with discriminatorily refusing to reinstate Murphy after the mill
had reopened; and (2) Murphy did not become reemplr--mod by the sporting goods
company until June 1.
Upon the entire record in the case, the undersigned finds that Murphy was
refused reinstatement after the mill reopened because he had engaged in pro-
tected concerted activities and not for the reasons advanced by Respondent.
The undersigned further finds that by such refusal to reinstate, Respondent
violated Section 8(a) (3) and (1) of the Act.
Roy Roush commenced his apprenticeship in 1921, became a journeyman
knitter about 1923, and has worked at the trade ever since. Roush was em-
es Obviously, Hubbard's statement is not binding upon Respondent for at that time
Hubbard was a nonsupervisory employee.
" In fact, at the hearing, Respondent's counsel conceded that Murphy filed an applica-
tion for reemployment and that it is dated February 12.
TRIMFIT OF CALIFORNIA, INC. 733
ployed as a knitter by Respondent on or about November 17, 1950. From that
date, however, until the shutdown Roush did not operate a machine but worked
as a cleanup man and also helped Driess erect a machine."
As found above, Roush wrote the Union in December that Respondent's em-
ployees were desirous of being organized ; met with Damm and a committee on
December 17, and discussed with them organizational plans ; signed Landers'
petition ; obtained the list of the employees' names and addresses from Carlisle ;
and arranged for the Union's January 21 meeting and requested employees to
attend. In addition, Roush signed a union membership card on January 21,
and attended the first open meeting of the Union.
At the time of the shutdown, Roush was assisting Driess and others in thread-
ing and readying for production the fourth machine," as well as helping attach
thereto the loopless toe device. Sometime between 10 a. in. and 1 p. m., Burley
and Mittman came to where he and others were working and Burley announced
that the plant was being closed until further notice in order to "re-tool" and
for the further reason that "orders was bad, and the work was bad."
Pursuant to a letter suggesting that he file a new application if he desired
reemployment, Roush filed such an application and was rehired on or about
February 17. Before being put to work that day, Mittman, in the presence of
Miss Mittman and Burley, said to him, according to Roush's credited testimony,
that Mittman "had to beg and coax the Kramers to reopen" the mill and then
... he promised me a trial ; he would put me on the machine and try
me on it. He let me know that he wanted no activity in the mill ; no talking
to anybody ; stay right at your machine, and we would get along.
As to the union, it didn't matter to him one way or the other what you
did. He didn't want it discussed in the shop . . . just stay at your machine
and work.
After Mittman's remarks, Roush punched his time card and went to work
oiling machines for about an hour or so ; then Driess called him over to the
fourth machine, and said to him, "I will run through a whole set (32 stockings)
with you" ; Driess then operated the machine until the whole set was completed,
which operation took about 45 or 50 minutes ; Driess then turned the machine
over to Roush to operate, adding, "If you run into trouble let me know" ; on the
first set upon which Roush worked alone he had some difficulty with the mitre
heel operation and called Driess for assistance; on the second set Roush had to,
call upon Driess once or twice for aid ; later that day Roush "got lost in the
process of locking the carriers and had to back up a little" ; and when he called
upon Driess for further assistance, Driess became a little perturbed because
Driess said that he (Driess) was behind in his scheduled work and could not
spare the time helping Roush.
On the following day, Roush admitted that he had some "electrical trouble"
in that he could not get the switch to work so the machine would operate ; that
it took him and Burley "quite a while" to remedy that difficulty ; that after the
"electrical trouble" was eliminated he ran "into the mitre heel business trouble"
because he had not reset the machine properly and therefore he "made a couple
of bad sets" ; that at about 1 p. in. two pickup bars stuck ; that he called Burley
for assistance (Driess was not at the mill that day) but Burley refused, because
of pressure of other duties, and suggested that he fix the machine himself ; and
"As each new knitter is hired it is apparently Respondent's policy to assign him to
cleanup work before assigning him to a machine. Roush's extended cleanup assign-
ment was due solely to the fact that there was no machine available.
16 Also referred to in the record as Machine No. 6
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that at about 4 p. in., quitting time, and while he was still trying to repair the
machine, Burley told him, "I guess you can't make it. You are through."
Mittman testified that Roush was discharged because of the smashup Roush had
on the second day after returning to work and that it took two men working
7 hours to repair the machine. He further testified that prior to assigning Roush
to a knitting machine, he had instructed Hubbard and either Thomas Kinney
or Lige Dodson, both knitters, to show Roush how to operate the machine.
Kinney testified, but was not questioned as to whether or not he was requested
to instruct Roush in the operation of the machine.
Dodson testified that Robson requested him to instruct Roush in the operation
of the machine ; that Roush did not seem to be able to grasp the mitre heel
operation ; that Roush assumed the attitude of knowing more about operating
the machine than he ; and that because Roush almost had a smashup on two or
three occasions he would not thereafter allow Roush to operate the machine.
Hubbard testified that from time to time, before and after Roush received
instructions from Dodson, he explained to Roush "everything about running the
machine," including the necessary mitre heel changes ; that Roush watched him
operate the machine over a period of a couple of months; that on occasions
Roush would watch him operate for about 30 minutes at a time; that Roush
"was used to the old type" machine and "was lost on the new machine" such
as Respondent used ; and that Robson was the only supervisor who requested him
to show Roush how to operate the machine.
Driess testified that the first day Roush was assigned to the machine he com-
pleted the first set of stockings and then turned the machine over to Roush who,
in his presence, "worked about three or four sets that morning" ; that Roush
operated the machine without mishap ; that after the luncheon period, he told
Roush to take over the machine and "if you get stuck, call me"; that several
times during the afternoon because Roush "hesitated," he went to Roush and
Roush would say, "What am I supposed to do?" and he would tell Roush what to
do ; that at the end of the first day, he told Roush, "You will be all right" ; and
that the smashup was due solely to Roush's carelessness.64
The record contains credible evidence that it is not uncommon for knitters,
including experienced ones, to have smashups ; that some smashups take as long
as a week to repair ; and that Hubbard, whom Mittman characterized as Respond-
ent's best knitter, had a smashup while in Respondent's employ.
Upon the entire record, the undersigned is convinced, and finds, that the Re-
spondent used Roush's smashup incident as a pretext to rid itself of a leading
union adherent. Mittman's admonition against union activity in the plant, set
forth above and which Mittman did not deny making, clearly reveals that Roush's
every action would be carefully watched by Respondent for the sole purpose of
obtaining an excuse to discharge him. Driess' characterization of the smashup
was due to Roush's carelessness, although, admittedly, Driess was not present
ar Admittedly, Driess was not at the mill the day Roush smashed the machine and
did not see the machine until after the repairs had been started. On cross-examination,
Driess testified regarding this incident, as follows :
Q. There wasn't anything that Roush did that caused it (the machine) to stick?
A. I wasn't there. He might have bumped the welt bars in turning around and
locking a friction and the sleeve of his shirt caught, because a lot of those things
could have happened.
Q. But you weren't there?
A. I was not there the day it happened.
Q. So when you [testified] that in your opinion that [the] smash was caused
by carelessness , what you meant was that you thought that Mr. Roush had [not]
examined each one of the welt bars carefully at the time of the turn over ; Is that
right?
A. That is right.
TRIMFIT OF CALIFORNIA, INC . 735
when it happened nor knew what caused the smashup, coupled with Burley's re-
fusal to fix the machine even though he was the only person present who was au-
thorized to fix machines for the operators, leads to the inescapable conclusion that
Roush , because of his union activities , was persona non grata in the plant.
The undersigned finds that Roush was discharged because he had engaged in
protected concerted activities with his coworkers and not for the reasons
advanced by Respondent, and that such discharge was violative of Section 8 (a)
(3) and (1) of the Act.
IF. 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 substantial relation to trade, traffic, and commerce among
the several States, and such of them as have been found to constitute unfair
labor practices, tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, viola-
tive of Section 8 (a) (1), (3), and (5) of the Act, it will be recommended that
it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent on January 30, 1951, and at all times there-
after, has refused to bargai} collectively with the Union as the representative
of the majority of the employees in an appropriate unit, the undersigned will
recommend that the Respondent, upon request, bargain collectively with the
Union as the exclusive statutory representative of all the employees in the
unit heretofore found appropriate, and if an agreement is reached, embody such
understanding in a signed agreement.
Having found that Respondent on January 22, 1951, locked out and dis-
charged James R. Ludwig, Ruth C. Ludwig, Dennis Fitzpatrick, and Raymond
Murphy, and thereafter refused the said individuals reinstatement, it will be
recommended that Respondent offer to each of them immediate and full re-
instatement to his or her former or substantially equivalent position," with-
out prejudice to his or her seniority or other rights and privileges.
Having found that Respondent on January 22, 1951, locked out and did not
reinstate them for a period of several weeks, with certain exceptions, and dis-
charged all its employees because they had engaged in certain protected con-
certed activities, it will be recommended that Respondent make whole all the
employees it locked out and discharged on January 22, 1951, including those
named in the immediately preceding paragraph, for any loss of pay they may
have suffered by reason of the aforesaid Respondent's discriminatory action
against them, by payment to each of them of a sum of money equal to the amount
each would have normally earned as wages during the period from January
22, 1951, to the date of his or her reinstatement or to the date Respondent of-
fered him or her reinstatement, less his or her net earnings during such period.!'
Having found that Respondent discriminated in regard to the hire and tenure
of employment and the terms and conditions of employment of Roy Roush, be-
cause he had engaged in certain protected concerted activities, the undersigned
will recommend that Respondent offer Roush immediate and full reinstatement
The Chase National Bank of the City of New York, an Juan, Puerto Rico, Branch,
65 NLRB 827.
50 See Crossett Lumber Co., 8 NLRB 440.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to his former position as knitter , without prejudice to his seniority or other
rights and privileges . The undersigned also will recommend that Respondent
make Roush whole for any loss of pay he may have suffered by reason of Re-
spondent ' s discrimination against him , including the period from January 22,
1951, to the date Respondent reinstated him after the mill reopened , by pay-
ment to him of a sum of money equal to the amount he normally would have
earned as wages less his net earnings , during those periods.
Back pay shall be computed in accordance with the formula enunciated by
the Board in F. W. Woolworth Company , 90 NLRB 289.
The unfair labor practices found to have been engaged in by Respondent
are of such a character and scope that in order to insure the employees here
involved their full rights guaranteed by the Act, it will be recommended that
Respondent cease and desist from in any manner interfering with, restraining,
and coercing its employees in their right to self -organization.o*
Upon the basis of the foregoing findings of fact, and upon the record as a
whole, the undersigned makes the following:
CONCLUSIONS OF LAW
1. American Federation of Hosiery Workers, affiliated with American Fed-
eration of Labor , is a labor organization within the meaning of Section 2 (5) of
the Act.
2. All Respondent's production and maintenance employees , exclusive of su-
pervisors as defined by the Act , constitute , and during all times material herein
constituted , a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
American Federation of Hosiery Workers, affiliated with American Federa-
tion of Labor , was on January 22 , 1951 and at all times since has been, the
exclusive representative of all the employees in the above -described appropriate
unit for the purposes of collective bargaining within the meaning of Section 9
(a) of the Act.
4. By refusing on January 30, 1951, and thereafter, to bargain collectively
with American Federation of Hosiery Workers, affiliated with American Federa-
tion of Labor , as the exclusive representative of all the employees in the ap-
propriate unit, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 ( a) (5) of the Act.
5. By discriminating in regard to hire and tenure of employment of all its
employees on January 22, 1951, thereby discouraging membership in the Union,
Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
6. By discriminating in regard to the hire and tenure of employment of Roy
Roush , thereby discouraging membership in the Union , Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
( a) (3) of the Act.
7. By interfering with , restraining , and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
60 See May Department Stores v. N. L. R B., 326 U. S. 376.