Valley Forge Flag Co.

National Labor Relations Board - Board Decisions

Jun 15, 1965

152 N.L.R.B. 1550 (N.L.R.B. 1965)

1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discriminate against our employees by canceling their truck
lease agreements because they engage in or have engaged in concerted activities
protected by the National Labor Relations Act.
WE WILL, upon their unconditional request, reinstate those employees listed
in Appendix A, terminated for engaging in concerted activities, by reexecuting
the truck lease agreement then in force, in the manner set forth in the section
of the Trial Examiner' s Decision entitled "The Remedy."
WE WILL make whole those employees listed in Appendix A for any loss of
pay they may have suffered because of our discrimination against them in the
manner set forth in the section of the Trial Examiner's Decision entitled "The
Remedy."
All our employees are free to become or remain , or to refrain from becoming or
remaining , members of Local 612, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any other labor organization.
DEATON TRUCK LINES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 528 Peach-
tree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No. 876-
3311, Extension 5357, if they have any question concerning this notice or compliance
with its provisions.
Valley Forge Flag Company and International Ladies' Garment
Workers' Union , AFL-CIO. Cases Nos. 4-CA-3305 and 4-CA-
3381. June 15,1965
DECISION AND ORDER
On November 30, 1964, Trial Examiner Sidney Sherman issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He further found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recommended
that such allegations be dismissed. Thereafter, Respondent filed a
motion to reopen hearing and record for the taking of additional
testimony,I exceptions to the Decision, a brief in support of the excep-
1 Subsequent to the hearing and Issuance of the Trial Examiner ' s Decision, Respondent
filed a motion to reopen the record to permit it to adduce evidence that George Liberman,
one of Respondent ' s directors , who testified on behalf of the General Counsel , had interests
adverse to those of his brothers, who were directors and officers of Respondent. The
General Counsel and the Charging Party opposed the motion on the grounds , inter alba,
that the evidence sought to be adduced would only be cumulative , as the record con tains
152 NLRB No. 150.
VALLEY FORGE FLAG COMPANY 1551
tions, and briefs answering the exceptions of the Charging Party and
the cross-exceptions of the General Counsel. The General Counsel
filed a memorandum in opposition to Respondent's motion, a brief in
support of the Decision, cross-exceptions, and a brief in support of the
cross-exceptions. The Charging Party filed an answer and memoran-
dum in opposition to Respondent's motion, exceptions, a brief in sup-
port of the exceptions, and a brief answering Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor-
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire rec-
ord in this case, including the Decision, the motion, the opposition
thereto, the exceptions and cross-exceptions, and the briefs, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the following additions and modifications.
1. We agree with the Trial Examiner that Respondent closed its
Sinking Spring plant and discharged the employees at that plant
because of their union activities. While not detailed by the Trial
Examiner, it is apparent that Respondent did not cease this aspect of
its business but transferred the operations performed at Sinking
Spring to some of its other plants.
The record discloses that prior to February 19, 1964,2 Respondent's,
major plants, all in the area of Reading, Pennsylvania, and the opera-
tions conducted therein, were as follows: (1) Spring City, the main
and largest plant, received and cut all material, shipped some to the
other plants, and manufactured veterans',3 signal, and commercial
flags, as well as banners; (2) Baumstown, located about 15 miles from
Spring City, was engaged solely in the manufacture of State flags; (3)
Robesonia, located about 40 miles from Spring City, was engaged in
work on veterans' flags; (4) Womelsdorf, located about 45 miles from
Spring City, manufactured all of Respondent's pioneer flags,4 and fin-
evidence of conflicts between George Liberman and his brothers which was considered
by the Trial Examiner in making credibility resolutions, and that, furthermore, the
acceptance and crediting of the proffered evidence would serve no useful purpose since
the Trial Examiner's Decision is supported by a preponderance of other credited testimony.
Inasmuch as the further evidence, if adduced and credited, would not require a different
result, we hereby deny Respondent's motion Permacold Industries, Inc., 147 NLRB 885,
footnote 1
Respondent also requested oral argument. This request is hereby denied because the
record , exceptions and cross-exceptions, and briefs adequately present the issues and
positions of the parties.
2 Unless otherwise specified, all events occurred in 1964
3 The veterans ' flag is manufactured by Respondent under contract with the Federal
Government for interment purposes
4 The pioneer flag differs from the veterans ' flag in that Its stars are printed whereas
those for the veterans ' flag are bandsewn , and it is manufactured for sale to various
organizations
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ished about one-third of the veterans' flag work; and (5) Sinking
Spring, located about 35 to 40 miles from Spring City, finished and
packed about two-thirds of the veterans' flags, and shipped all of them.
On February 19, Respondent announced its decision to close the Sink-
ing Spring plant for reasons found to be unlawful. Sidney Liberman,
referred to herein as Liberman, Respondent's president and operating
head, testified that on that morning he called the two Sinking Spring
supervisors and the office clerical into his office, announced that the
Sinking Spring plant would be closed at noon, and that "we're moving
everything up to Womelsdorf and would do the entire veterans' flag
contract there," and instructed the three women to report for work at
Womelsdorf the following day. Hettinger, who served as a truckdriver
and maintenance man for Respondent and as chauffeur for Liberman,
testified that at noon Liberman spoke to him and Respondent's machin-
ist in the Sinking Spring office and advised them that "we would be
operating out of Womelsdorf as of that day."
Hettinger also testified with regard to the transfer of equipment
from Sinking Spring to some of the other plants after the closing. His
testimony reveals that prior to the closing, about 13 star sewing
machines, over 20 trimmer machines, and all the equipment for the
shipping operation were located at Sinking Spring. On February 20,
the manager of the Womelsdorf plant instructed Hettinger to move
three of the star sewing machines and all the shipping equipment to
Womelsdorf; about a week later she instructed him to move two more
star sewing machines to Robesonia; and thereafter he was instructed
to move four more star sewing machines to Spring City for rewiring
and ultimate installation in Baumstown. While not entirely clear,
it appears that four trimmer machines were also transferred.
Davis, general manager of the Spring City plant, testified that
Baumstown, which had formerly manufactured only pioneer flags,
devoted one of its two floors to veterans' flag work after the Sinking
Spring closing, and that Womelsdorf, which had formerly finished
about one-third of the veterans' flags and had done no shipping, fin-
ished and shipped all such flags thereafter.
In its answer to the consolidated amended complaint, Respondent
admitted that it had rehired about 13 of the Sinking Spring employees
for work at its other plants, and rehired another as a homeworker.
Liberman testified that these Sinking Spring employees were hired
for work at Womelsdorf, Robesonia, and Baumstown, although he
stated that those at Baumstown were not put on veterans' flag work.
Furthermore, Garrison, who was in charge of the production of the 10
star sewers and trimmers who did homework for Sinking Spring, tes-
tified that after the closing she instructed them to deliver their work
to Robesonia.
VALLEY FORGE FLAG COMPANY 1553
In sum, when Respondent closed its Sinking Spring plant, it trans-
ferred the work done there to several of its other plants, moved some
of the equipment to the other plants, hired some of the Sinking Spring
employees for work at these other plants, and instructed the Sinking
Spring homeworkers to deliver their work to one of these other plants.
We find that by discharging its Sinking Spring employees and simul-
taneously transferring their work to its other plants so as to thwart
the organizational activities at Sinking Spring, Respondent violated
Section 8(a) (3) and (1) of the Act.5
2. The General Counsel and the Charging Party except to the failure
of the Trial Examiner to find that Respondent was responsible for Gar-
rison's conduct in interrogating the Sinking Spring employees con-
cerning their union sympathies. We find merit in these exceptions.
Garrison was primarily concerned with the work of the 10 Sinking
Spring homeworkers. She was in continuous contact with them, both
to advise them when work was available and to secure information as
to their time and production. She maintained the time and produc-
tion records of the homeworkers and submitted weekly reports thereon
to Respondent's Spring City headquarters. Garrison testified that
while she had never issued instructions with regard to production
quotas in the past, in March 1964 Respondent instructed her to contact
the homeworkers and advise them of increased production quotas. The
Trial Examiner found that about the same time Respondent also
instructed Garrison to telephone about 10 of the Sinking Spring
employees with regard to rehire for work at Respondent's other plants;
that during her conversations with them Garrison asked 3 of these
employees about their union sentiments; and that when they expressed
prounion sentiments, she did not ask them to return to work. Garrison
testified that she did ask some of the other employees to return to work
at the beginning of March. These instructions were later counter-
manded by Respondent after consultation with its attorneys.
The Trial Examiner concluded that because Garrison's supervisory
status had not been established, and because there was no evidence that
Respondent had expressly directed her to interrogate the Sinking
5 Respondent's conduct herein is clearly distinguishable from the type of situation with
which the Supreme Court was concerned in Textile Workers Union of America v. Darling-
ton Manufacturing Co., 380 U.S. 263, where the employer closed down a plant, sold all
the machinery and equipment, and did not transfer the operation to any other plant
We find it unnecessary to adopt the Trial Examiner's assumption, based on evidence
rejected at the hearing, that the Sinking Spring employees were less productive than
Respondent's other employees and that on February 19 the capacity of Respondent's other
plants was sufficient for its needs As stated by the Trial Examiner in his footnote 16,
Respondent will have an opportunity to introduce the proffered evidence at the com-
pliance stage of these proceedings and if it can then establish that any of the Sinking
Spring employees would have been terminated subsequent to February 19 for nondis-
criminatory reasons, this will be taken into consideration in determining the amounts of
backpay due these employees
7 89-730-66-v of 152-99
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spring employees and to refuse to recall those who were prounion,
her conduct was not attributable to Respondent. We do not agree.
Whether or not Garrison was technically a "supervisor" under the Act,
her responsibilities put her in a position to be identified with manage-
ment in the eyes of the employees and to translate to them the policies
and desires of management. Furthermore, Respondent expressly
authorized her to act as its agent with regard to the recall of the Sink-
ing Spring employees. The fact that it may not have authorized her
to interrogate the employees regarding their union sentiments and to
refuse to recall those who were prounion is immaterial, as she was act-
ing within the apparent scope of her authority and such limitations
were not communicated to the employees. As Garrison was in fact
Respondent's agent and was acting in that capacity, we find that
Respondent is responsible for her conduct."
3. Respondent excepts to the Trial Examiner's finding that its con-
duct on February 26 and thereafter amounted to an unlawful refusal
to bargain. Respondent argues, inter alia, that the Sinking Spring
employees were not "employees" within the meaning of the Act sub-
sequent to February 19, and that the Union's demand on February 26
did not constitute a proper request for bargaining. We find no legal
justification for these contentions.
It has long been established that individuals who are discharged in
violation of the Act are "employees" within the meaning of the Act."'
With regard to the demand, the Union did, on February 26, assert all
that was required of it under the circumstances. As the Sinking Spring
plant had been shut down for a week at that time, it would have been
futile for the Union to demand bargaining over the wages, hours, and
working conditions at that plant. It did, however, claim to be the
majority representative of the employees in an appropriate unit; it
requested recognition; and, as the Sinking Spring operation was being
transferred to Respondent's other plants, it sought bargaining with
regard to the hire of the Sinking Spring employees at these plants.
Under the circumstances of this case, the Union was entitled to bargain
with Respondent concerning the rehire procedure and its operation so
as to ensure that all available positions would be distributed equitably
among the Sinking Spring employees. Respondent agreed to meet
with the Union and thereafter several meetings were held. However,
as found by the Trial Examiner, at these meetings Respondent did not
bargain with the Union as to which Sinking Spring employees would
B Shop Rite Foods, Inc, 141 NLRB 1013, 1021 ; Austin Concrete Works, Inc, 132
NLRB 184; Solo Cap Company, 114 NLRB 121, 122-123, enfd. 237 F. 2d 521,
523-524 , (C.A. 8).
4 Sam Walliek, et al., d/b/a Wallick d Schwalm Corp.; and Spring Mills Apparel, Inc.,
95 NLRB 1262, 1265, enfd 198 F. 2d 477 (C A. 3).
VALLEY FORGE FLAG COMPANY 1555
be rehired. Instead, it unilaterally selected certain employees for recall
without notification to, or consultation with, the Union. This conduct
was in derogation of the rights of the majority representative and was
an unlawful refusal to bargain.,'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, Valley Forge Flag Company,
Spring City, Pennsylvania, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, as so modified:
1. Add the following as paragraph 1(c) to the Trial Examiner's
Recommended Order, and reletter the present paragraph 1(c) as 1(d)
"(c) Interrogating employees about their U nion sympathies and
intentions in a manner constituting interference, restraint, or coercion
in violation of Section 8(a) (1).'"
2. Add the following as paragraph 2(b), the present paragraph 2(b)
and those subsequent thereto being consecutively relettered :
"(b) Notify all such employees if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act of 1948, as amended, after
discharge from the Armed Forces."
3. Add the following after the third indented paragraph in Appen-
dix A attached to the Trial Examiner's Decision :
IVE WILL NOT interrogate our employees about their union sym-
pathies and intentions in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1).
4. Amend the paragraph immediately below the signature line at
the bottom of Appendix A attached to the Trial Examiner's Decision
to read as follows :
NOTE.-We will notify the employees who were deprived of
employment as a result of the shutdown of our Sinking Spring
plant if presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Mili-
tary Training and Service Act of 1948, as amended, after discharge
from the Arined Forces.
9 See N L R B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co, 369 U.S.
736, 747-748.
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
The charges herein were served on Valley Forge Flag Company, herein called the
Respondent, on April 2 and June 2, 1964,1 and a consolidated amended complaint
issued on August 14. The proceeding was heard before Trial Examiner Sidney
Sherman at Reading, Pennsylvania, on various dates between September 9 and 22.
The issues litigated were whether the Respondent violated Section 8(a)(1), (3), and
(5) of the Act by closing its Sinking Spring plant and by its conduct of negotiations
with the Union.
After the hearing, briefs were submitted by all parties, and Respondent, in addi-
tion, filed a motion to reopen the hearing to take further testimony of DeSalvo, a
witness for the General Counsel. For reasons which appear from the papers on file
in this case, an order was issued on October 8, granting this motion unless the Gen-
eral Counsel agreed to the striking of DeSalvo's entire testimony. On October 19,
the General Counsel having agreed thereto, I ordered DeSalvo's testimony stricken,
and no further reference will be made thereto.
Upon my observation of the witnesses, and the entire record herein, I make the
following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. RESPONDENT'S BUSINESS
Respondent, a corporation organized under the laws of New York State, is engaged
at various plants in the vicinity of Reading, Pennsylvania, in the production, sale, and
distribution of flags of the United States. During the year preceding the issuance
of the instant complaint, Respondent shipped products worth more than $50,000 from
its plants in Pennsylvania to out-of-State points.
It is found that Respondent is an employer engaged in commerce within the mean-
ing of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint, as amended, alleges the following violations of the Act-
1. The closing of the Sinking Spring plant on February 19, and the resulting layoff
or discharge of employees at that plant, because of their union activities, and the
discriminatory refusal to rehire them at other plants of Respondent.
2. Unlawful interrogation of employees by Garrison late in February 1964.
3. The refusal to bargain with the Union since February 26.
4. Bargaining with the Union in bad faith since March 4.2
The answer, in substance, denies all the foregoing allegations.
A. Sequence of events
Respondent presently operates four plants in the general vicinity of Reading,
Pennsylvania. A fifth plant in the same area-at Sinking Spring-was closed on
February 19, 1964, thereby giving rise to the issues in this case. The existing plants
are located at Womelsdorf, Baumstown, Robesonia, and Spring City, which last plant,
with about 120 employees, is the largest of the four. Each plant has its own manager,
the manager at Spring City being termed the general manager, because of certain
authority she has with regard to the other plants. The Respondent's operating head
is its president, Sidney Liberman, who is also a director and owner of 40 percent of
Respondent's stock. The remaining stock is held by his brothers, Abe and George.3
Abe is a director and secretary-treasurer of Respondent, and George is a director
but, although he receives an annual salary of $10,000, holds no other office and has
no assigned duties.
The plants manufacture American flags in various sizes and styles. At the time
that it closed, the Sinking Spring plant was making so-called veterans' flags-that is,
1 All events hereinafter related occurred in 1964, unless otherwise stated.
2 As to this allegation, see General Counsel's Exhibit No. 9
'At one time a fourth brother, Lester, owned 20 percent of the stock. On February 7,
as a result of certain litigation between him and Lester, Sidney agreed to buy Lester's
stock. It appears that thereafter Lester died, and the final disposition of his ownership
interest is not clear from the record.
VALLEY FORGE FLAG COMPANY 1557
flags ordered by the United States Veterans' Administration. Other plants were also
working on such flags, but, unlike the Sinking Spring plant, they produced other types
of flags as well. About 60 persons were employed at the Sinking Spring plant when
it closed, not counting 10 "homeworkers," who worked at home on material they
received at, and returned to, the plant.
Early in the morning of February 18, Sidney Liberman 4 notified Helen Gernert,°
his manager at Sinking Spring, that she was being discharged, together with her son,
Ronald, and her sister, Devona Reichert, and Liberman informed employees Alspach
and Alnetta Moyer that they were thereafter to be "in charge of" the various produc-
tion operations at Sinking Spring. The employees promptly gathered in the plant
office where they besieged Liberman with protests and entreaties. Although the
employees later returned to their work area, they performed no work, despite exhor-
tations by Alspach and Moyer, and by Liberman, himself. Finally, about 2:30 p.m.,6
Liberman excused the employees for the day, with the assurance that those who
wanted to work the next day would be welcome.
Meantime, during the same morning, two employees, Norton and Ibach, contacted
a union representative, who advised them that the Union could not help Helen
Gernert because of her supervisory status, but could aid the employees in other areas,
and it was arranged that the Union would meet with the employees that evening at
the local "fire hall." Ibach and Norton returned to the plant about noontime and
informed the other employees of this development. That evening about 13 employees
attended the union meeting, signed cards authorizing the Union to represent them,
and agreed that they would meet with the union representative at 6.30 the next morn-
ing at the fire hall and wait upon Liberman in order to present to him various griev-
ances relating to working conditions. However, because of a severe snowstorm the
next morning, none of the employees came to the fire hall. In fact, that morning less
than half of the plant complement reported for work. Of those who did not report,
a number telephoned the plant to give notice that they could not come in because of
the snow. These calls were received by Alnetta Moyer (who is found below to be
a supervisor) and by Kraemer, an office employee. Subsequently, about 8 a.m.,
Liberman arrived and announced that he was closing the plant, and the plant has
since remained closed. The work then being done at Sinking Spring was completed
at Respondent's Womelsdorf plant.
After the shutdown, the Union solicited the laid-off employees to sign union cards,
and by February 21 had obtained 34 signatures. On various dates in February and
March the Union met with Liberman and his attorney, Blumberg, and sundry matters
relating to the closing of the Sinking Spring plant and the plight of the employees
were discussed. The last such meeting was held on March 19.
B. Discussion
1. The plant closing
The General Counsel contends that the plant was closed on February 19 because
of the employees' union activities the day before. In support of this contention, he
adduced the testimony next discussed.
George Liberman, a witness subpenaed by the General Counsel, testified that dur-
ing the spring of 1964 he asked his brothers, Sidney and Abe, why the Sinking Spring
plant had been closed, that Sidney refused to answer, but Abe divulged that the plant
had been closed because of "union trouble," and because "troublemakers" were trying
to organize a union at the plant. Abe Liberman denied making any such disclosure
and Sidney denied that George had ever questioned him about the closing of the
plant. However, at the time of the instant hearing, George, although at odds with
Sidney and Abe over certain matters,7 was still a director of Respondent, held a sub-
stantial amount of its stock, and received an annual salary of $10,000, for which he
rendered no apparent services. I cannot accept Respondent' s contention that a man
with such a substantial monetary stake in the Respondent would so far give way to
resentment or spite as to fabricate testimony for the sole purpose of inflicting loss on
d All references hereinafter to "Liberman" denote Sidney Liberman.
5 Hereinafter called Gernert.
8 The regular quitting time was 3:30 p in
7 George had testified for his brother, Lester, In his litigation with Sidney. (See
footnote 3, above.) A number of requests by George for additional compensation were
vetoed by Sidney and Abe at a directors ' meeting in June 1964
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent .8 For this reason, as well as demeanor considerations , I credit
George, and find that, as he testified , Abe admitted that the closing of the Sinking
Spring plant was due to employee union activity and that Sidney refused to assign
any reason.
Hettinger , a witness subpenaed by the General Counsel, had formerly worked at
Sinking Spring as a maintenance man and truckdriver and, with the closing of that
plant, was transferred to Womelsdorf , where he worked until he resigned in July.
While so employed , he had on occasion acted as chauffeur for Liberman . He testi-
fied that, about 4 weeks after the Sinking Spring plant closed, Liberman told him that
the plant had been closed because of "trouble with the organization ," that the good
workers in that plant would have to suffer with the "agitators ," and that "there would
never be a union in the mill" because Liberman intended "to have the right to hire
and fire as he saw fit." Liberman , in effect, contradicted the foregoing testimony.
Although he was related to one of the discriminatees ,9 Hettinger , unlike Liberman,
had no personal , financial stake in this proceeding . While he admitted that his resig-
nation from Respondent 's employ was due to a feeling of insecurity, engendered by
rumors that he was to be discharged , the fact remains that, so far as appears from
the record , he was not a voluntary witness for the General Counsel. Moreover, I
was not favorably impressed by Liberman 's demeanor or candor.'°
Accordingly , I credit Hettinger 's testimony , notwithstanding Liberman 's denial,
and find that about a month after the closing of the Sinking Spring plant Liberman
made the remarks attributed to him by Hettinger , reflecting Liberman 's determina-
tion that there would never be a union at the Sinking Spring plant, and admitting that
the closing of the plant as well as the failure to reopen it was due to employee union
activity.
Yocum, formerly employed at Sinking Spring, testified that about noontime on
February 19, her supervisor , 11 Alnetta Moyer, told her that the plant was being closed
down because of "the Union ." Moyer denied this. I was more favorably impressed
by Yocum's demeanor than by that of Moyer, whose credibility was, moreover,
impaired by her denial , notwithstanding the admission to the contrary of her fellow
supervisor , Alspach, that in the morning of February 19 the two supervisors discussed
s His testimony , as already noted , was given under Government subpena. Moreover,
to discredit his testimony , it would be necessary to find not only that he bore such
ill-will to his brothers that he had no qualms about giving false testimony adverse to
his own interest , as well as theirs, but also that he took pains to give such testimony
a flavor of plausibility by attributing to Sidney Liberman merely a refusal to answer ques-
tions about the closing of the plant.
As to the weight to be given to Sidney 's testimony , insofar as it conflicts with George's,
see the discussion below as to Sidney 's credibility
8 His niece , Wengert, was a claimant herein and at the time of the hearing was in the
employ of the Union.
"An incident demonstrating Liberman 's apparent indifference to the obligations of his
oath occurred after Liberman had testified extensively about the circumstances surround-
ing a prolonged shutdown of the Sinking Spring plant in 1962, and had denied in detail
testimony by General Counsel's witnesses that such shutdown and related acts by Liber-
man were motivated by antiunion considerations When at this point , Liberman was
confronted with a statement in his pretrial affidavit denying any recollection of the 1962
shutdown , his only comment was "It's in the affidavit , I stated that " Perhaps even more
disconcerting was the fact that , after Liberman had denied that he knew of a 1-day
shutdown of the Sinking Spring plant in January 1964 because of a snow storm , insisting
that he learned about such shutdown only a week before the instant hearing , his brother,
Abe, who otherwise supported Sidney 's testimony , acknowledged not only that on Jan-
nary 13, 1964, there had been such shutdown but also that he heard Sidney order the
shutdown himself.
"The answer admits that Moyer was a supervisor on February 19, and it is not clear
that Respondent now contends otherwise In any event, the record shows that on Feb-
ruary 18 , having discharged Gernert , an admitted supervisor , Liberman made no pro-
vision for replacing her other than to put Moyer "in charge of" the approximately 35
hourly paid employees and Alspach "in charge of" the approximately 25 piece workers.
As it is evident from the foregoing that Respondent intended Moyer and Alspach to
exercise the same authority with respect to their respective subordinates as Geinert had
formerly enjoyed , I find that both Moyer and Alspach were supervisors on Febru-
ary 18 and 19.
VALLEY FORGE FLAG COMPANY 1559
the possibility that the employees were attempting to organize a union, and that a
stranger who appeared at the plant entrance that morning might be a union repre-
sentative.12 Accordingly, I credit Yocum.
In view of the cumulative effect of the foregoing credited testimony as to extra-
judicial admissions by Abe and Sidney Liberman and by Alnetta Moyer concerning
the discriminatory motivation for the closing of the Sinking Spring plant, the conclu-
sion would seem, at least prima facie, warranted that the reason for such closing was
in fact the employees' union activity on February 18.13
Respondent contends, however, that the plant was closed because of a complex of
reasons, the underlying one being the alleged relative inefficiency of the Sinking
Spring employees, coupled with the fact that Respondent in February 1964 could
meet all its current production requirements with its four remaining plants, and with-
out the aid of the Sinking Spring plant. However, Respondent conceded that, while
the closing of Sinking Spring for the foregoing economic reasons had been under
consideration for some time, no decision to close was reached until the morning of
February 19, and that such decision was precipitated by certain events of that morn-
ing and the day before (which events, however, were allegedly not related to the
employees' union activity or to any protected concerted activity).
In view of Respondent's concession that the plant would not have been closed on
February 19 but for certain events on that day and the day before, and that such
events at least accelerated the closing of the plant,14 I refused to receive at the hearing
documentary and other evidence tendered by Respondent as to the economic factors
allegedly underlying the closing of the plant,15 and certain data allegedly showing
12 The stranger was, in fact , Hoffman, a union agent, who visited the plant in the
morning of February 19, after ascertaining that none of the employees had come to the
scheduled meeting at the fire hall
13 Respondent contends that there was no evidence that Liberman , who was responsible
for the decision to close the plant, was aware of the employees' union activity when he
made that decision. However, there is necessarily inherent in Abe Liberman's disclosure
to his brother, George, that the plant was closed because of the Union, an admission
that the decision to close was made with knowledge of the employees' interest in the
Union The same is true of Liberman 's remarks to Hettinger , insofar as they indicated
that the closing was because of the Union , and of Moyer ' s admission to Yocum More-
over, Supervisor Alspach admitted, as already noted, that in the morning of February 19,
shortly before the decision to close was announced, both she and her fellow supervisor,
Moyer, surmised that certain of the employees were attempting to form a union, and
it is undisputed that the decision to close was thereafter announced by Liberman at a
meeting with the two supervisors. Kraemer, who was also at that meeting, was admit-
tedly aware of the employees' union activity The denial of the supervisors, Kraemer
and Liberman, that on this occasion any reference was made by them to employee union
activity strains credulity . In any case , since any one of the various admissions cited
above would suffice to establish Respondent 's knowledge of employee union activity prior
to the decision to close the plant , there is no need to determine how such knowledge was
acquired.
14 Respondent offered no estimate as to the date that the Sinking Spring plant would
ultimately have been closed, absent such events . At the hearing, Respondent's counsel
surmised only that such closing would have occurred , in any event , "sometime in the
future." Liberman, himself, was at a loss to fix any more precise date, and, when
pressed to state whether the plant might not still be in operation but for the Febru-
ary 18-19 incidents , he answered in effect that , absent such incidents , Respondent might
merely have "weeded out" some of the Sinking Spring employees
ii However, for the purpose of this decision, I have assumed the truth of the matters
sought to be proved by such evidence; namely, that the Sinking Spring employees were
less productive than Respondent's other employees and that the capacity of Respondent's
other four plants was sufficient for its immediate needs I did not perceive any reason
to litigate these matters as they would prove at most only that, had not this plant been
closed on February 19, it would have been closed or its operations reduced some time
later for economic reasons. While that circumstance might well preclude any liability
of Respondent for backpay beyond the date of such hypothetical nondiscriminatory action,
that is a matter which may best be resolved in any proceedings that may be brought to
determine the amount of backpay here due. Thus, my findings herein are limited only
to the considerations that caused Respondent to accelerate any decision it might other-
wise have reached at a later date regarding layoffs at the plant, and do not purport to
preclude a finding in any subsequent, compliance proceeding that there would have been
such layoffs in any event. See Ethel J. Hinz, etc., d/b/a Myers Ceramic Products Co.,
140 NLRB 232, 233-234.
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the closing of the plant was proved by subsequent events to be economically
sound.
We turn now to a consideration of the events which, according to Respondent,
triggered the closing of the plant. As already noted, on February 18, the discharge
of Gernert and her relatives was followed by a work stoppage which caused Liberman
to dismiss the employees, with the exhortation to return to work the next morning.
According to Liberman, when he came to the plant the next morning and found that
the bulk of the employees, particularly the star sewers and trimmers, were absent,16
he attributed such absence to a "scheme" to force him to reinstate Gernert as plant
manager, and decided to close the plant rather than reinstate her. Thus, Respondent
attributes the closing of this plant to Liberman's belief that the absenteeism on the
19th represented a concerted abstention from work to force him to rehire a former
supervisor.
There was uncontradicted evidence, and I find, that there was in fact no agreement
among the employees not to report for work on the 19th, and that even those 13
employees who attended the union meeting on the 18th fully intended to work the
next morning (albeit with the understanding that they would approach Liberman
before working hours with a union representative to present their grievances). So
far as appears from the record, the only thing that deterred those 13 employees from
executing this plan was the severe snowfall on the 19th, and there is no evidence that
any of the other absences on the 19th was for reasons other than the inclement
weather, nor is it disputed that a number of employees called in that they would be
absent because of the snow and that Kraemer, Moyer, and Alspach knew about these
calls.17 Nevertheless, all three denied that they reported these calls to Liberman, and
he denied that he knew of these calls, or that he ascribed the absenteeism on the 19th
to the weather. He even denied that he was aware that in the past attendance at the
plant had been adversely affected by heavy snowfalls, or that the Sinking Spring plant
had been shut down for 1 day in January 1964 because of a snowstorm. However,
as already noted, his brother, Abe, who otherwise testified favorably to Respondent,
admitted that not only the Sinking Spring plant but all the plants had been closed in
mid-January because of such a storm and that this general shutdown had been
ordered by Liberman, himself. For all these reasons, I find it difficult to credit Liber-
man's testimony that he regarded the discharge of Gernert, rather than the weather,
to be the cause of the meager attendance at the plant on February 19.
Liberman testified further that he told Kraemer, Moyer, and Alspach on Febru-
ary 19 that he was closing because of the absence of the star sewers. While Alspach
corroborated this, Moyer insisted that the only reason Liberman gave was "lack of
work." 18 In view of Liberman's general unreliability as a witness, and in view of
the contradiction of his testimony on this point by his own supervisor, Moyer, I do
not credit him here.19
"He estimated that only about 17 of the 35-odd hourly paid employees, and only 1 of
the 22 piece workers (sewers and trimmers) reported. Other witnesses testified that 25
of the hourly paid employees reported.
17At the hearing, Moyer admitted that she received "more than five" such calls, and
Kraemer estimated that she might have received six Thus, these admissions indicate
that at least 11 employees called in. (Employee Noecker testified that, at Moyer's
request, she took calls from two employees, which she reported to Moyer It is not clear
whether these were included in Moyer's estimate ) The records show moreover that Re-
spondent reported to the State unemployment compensation agency that eight employees
had not come to work on February 19 because of the weather.
Is Kraemer 's testimony was not clear on- this point. She alternately imputed to Liber-
man references to "lack of work," and lack of employees as the reason for the closing,
finally settling on "lack of work "
19 In any event, even if Liberman did in the presence of his supervisors, explain that
he was closing the plant because of the absence of the star sewers, it would still be nec-
essary to consider whether such explanation was true, and, if so, whether Liberman
ascribed the star sewers' absence to union activity, the discharge of Gernert, or the dis-
charge of her relatives (See discussion in the text below.)
Certain testimony was offered by Respondent, apparently for the purpose of showing
that Liberman and his brother Abe had agreed on February 18 to close the plant if the
star sewers did not report the next day Thus, Liberman testified to a telephone call
to Abe on the afternoon of the 18th, in the course of which it was allegedly agreed that
if the star sewers and trimmers did not return the next day, it would not be feasible
to continue to operate at Sinking Spring Abe, however, went even further , asserting
that his brother called him twice that day-once at noon and the second time in the
VALLEY FORGE FLAG COMPANY 1561
Moreover, Liberman 's uncorroborated testimony that he attributed the absenteeism
of the 19th only to employee resentment over Gernert 's discharge and for that reason
closed the plant , is vulnerable on the following additional points.
a. The foregoing testimony can aid Respondent only if, as it contends, a strike in
protest over the discharge of a supervisor would not be protected . However, the
validity of this contention is not entirely clear, in view of certain Board decisions
finding such a strike to be protected.20
b Liberman 's only apparent reason for supposing that the absenteeism on the 19th
was due to Gernert's discharge was the fact that there had been a work stoppage the
day before when he discharged her together with her relatives . However, there is
undisputed testimony , and I find, that while the employees were greatly disturbed on
the 18th over the discharge of their supervisor , they also raised the issue of the simul-
taneous discharge of her son and sister , both nonsupervisory employees . 221 Thus,
Alspach admitted that in their discussion with Liberman on the 18th , the employees
urged him to rescind all three discharges , and Norton testified that the initial protest
to Liberman on the 18th was made by Ritter , who, after complaining of Helen's dis-
charge, asked why he had discharged the two others , eliciting the response that Liber-
man would not have "families " in the plant 22 Boyer confirmed that the employees
protested all three of the discharges on the 18th ,23 and Liberman failed to explain
why he assumed , as his testimony implied, that the employees were no longer con-
cerned over the fate of Gernert's son and sister . A work stoppage on account of their
discharge , as well as Gernert 's would have been protected . 24 Accordingly , even if
afternoon-and that in each call reference was made to the work stoppage by the star
sewers, and that it was agreed , in view of such stoppage , to implement a decision reached
some time before to close the plant for economic reasons. Thus, according to Abe, it
was the work stoppage by the star sewers on February 18 that triggered the decision
to close Sinking Spring , and Abe's version , unlike his brother ' s, makes no reference to
any understanding that the plant would be closed only if the star sewers did not return
to work on the 19th The inability of the two brothers to agree on the substance of their
alleged discussion on the 18th , necessarily detracts from the weight to be given such
testimony. The credibility of Sidney's testimony that there was such a conversation
is further impaired by his demonstrated indifference to his oath as a witness As to Abe's
version that the brothers , in effect , agreed on the 18th to close the plant forthwith be-
cause of the work stoppage on that day , such testimony is not only at odds with Liberman's
own testimony but also with the undisputed proof in the record that he exhorted the
employees , when he dismissed them in the afternoon of the 18th , to return to work the
next day, and that those who returned did work throughout the morning of the 19th.
20 Dobbs Houses , Inc, 135 NLRB 885, 888 , enforcement denied 325 F. 2d 531 ( CA. 5),
and cases there cited . The Colson Corporation , 148 NLRB 827 These cases may be dis-
tinguishable from the instant case, however , on the ground that they stress the striking
employees ' concern over the impact of a change in supervisors on their working conditions.
That does not appear to have been a factor here See Fontaine Converting Works, Inc ,
77 NLRB 1386 , where the Board refused to find protected a strike over the demotion of
a supervisor , because the strike was motivated only by sympathy for the supervisor.
21 According to Liberman , Gernert ' s son was discharged at least in part because of his
insolence on a prior occasion , but would have been discharged , in any event , together with
Gernert ' s sister , because of Liberman 's fear that , if retained , they would engage in
sabotage in reprisal for the discharge of Gernert.
22 Apparently , Liberman meant thereby that it was against his policy to retain relatives
of a discharged employee See preceding footnote.
Kraemer admitted that she heard Norton announce to the other employees on the
18th that the object of the union meeting that evening was to secure the rescission of
all three discharges
2' The Board has held that the discharge of employees for striking over the discharge
of a supervisor and a nonsupervisory employee is unlawful . Summit Mining Corpora-
tion, 119 NLRB 1668 , 1672-1673, enfd 260 F . 2d 894 ( CA. 3), and cases there cited.
Respondent contends , however, that the discharge of Gernert ' s son and sister was not
a matter of legitimate concern to the other employees , because the only avowed reason
for their discharge-their kinship to Gernert-was peculiar to them and had no possible
application to the employees generally However, clearly, the fact that Respondent had
seen fit to discharge two employees , assigning as the only reason therefor a matter wholly
unrelated to their past efficiency, was a subject of legitimate concern to the other em-
ployees. Moreover , the policy announced in Gernert 's case that , whenever one member
of a family was discharged , all other members in Respondent 's employ must share their
fate, was not limited to cases involving the discharge of a supervisor, and so did properly
concern the other employees , as it made their job tenure dependent on that of any of
their relatives who were than working, or might in the future work, for Respondent.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one were to credit Liberman insofar as he related the absenteeism of the 19th to the
stoppage on the 18th, there would still remain the problem of rationalizing his
apparently arbitrary assumption that the employees had overnight lost interest in
Gernert's son and sister.
Finally, even if one overlooked the apparent implausibility and contrived nature
of Liberman's explanation of the closing of the plant, such explanation could not,
in any event, suffice to dissipate the effect of the out-of-court admissions made by
Liberman, his brother, Abe, and his supervisor, Moyer, that the plant was being, or
had been, closed because of the Union. Respondent has failed to offer any persua-
sive explanation as to why Liberman and the two others would thus have ascribed
the plant closing to the employees' union activity, if in fact the reason was a mistaken
belief by Liberman that the employees were striking over the discharge of Gernert.2°
I therefore reject Respondent's explanation of the timing of its decision to close
the Sinking Spring plant, and find that the plant was in fact closed on the 19th because
of employee union activity and that Respondent thereby violated Section 8(a)(3)
and (1) of the Act.26
2. Interrogation
The amended complaint alleged unlawful interrogation of employees by Garrison,
an alleged agent of Respondent. Lape, Clay, and Boyer, formerly employed at Sink-
ing Spring, testified that, within a few weeks after the plant closed, Garrison called
them and inquired about their availability for work, and, when they expressed inter-
est in reemployment, asked them about their union sympathies. According to Clay,
she replied that she was for the Union, and Lape testified that she answered that she
would "go with the majority." They were never recalled. Boyer, who, according to
her testimony, balked at answering the question about her union sentiments, was
Respondent's brief suggests that, since such admissions by the Libermans weie made,
if at all, after the Union had already approached Respondent and disclosed its interest
in the plant, they might simply have retroactively- attiibuted the absenteeism on the 19th
to union activity, rather than to what they had originally supposed to be a work stoppage
over Gernert's discharge However, as the Libermans categorically denied making the
foregoing admissions, there is no basis in their testimony for finding that such admissions
were based on mistake or confusion, and so to find would be pure speculation. Moreover,
Respondent's foregoing explanation does not account for Moyer's contemporaneous admis-
sion on the 19th, it week before the Union made its first approach to Liberinan, that the
plant was being closed because of the Union
23 "Background" eiidence iegaiding the temporary closing of a plant at Sinking Spring
in 1962, and the related discharges of union adherents, was introduced by the General
Counsel to establish Respondent's union animus and to prove that the tactics used in
1964 to combat the Union were consistent with its past conduct of its labor relations
Gernert's testimony to that effect was partially corroborated by Wengert and Weinrick.
I am inclined to credit such testimony, despite Respondent's denials, at least insofar as
it purports to show that in 1962, Respondent engaged in extensive surveillance of union
activity, and, in subsequently effecting a reduction in force, selected for layoff or discharge
those girls believed to be "union-minded " I also credit Gernert's testimony that, when
two of these girls were offered employment elsewhere, Liberinan called their new em-
ployers and warned them against hiring the girls, asserting that they were union-minded
and troublemakers However. I do not deem it necessary to rely on the foregoing mat-
ters, and I have not done so, in view of the cogent more direct proof in the record of
the discriminatory motivation for the 1964 plant closing
Nor have I relied on certain testimony by Union Agents Paluscio and Hoffman con-
cerning an alleged admission by Respondent's counsel, Blumberg, about a week after the
plant closed, to the effect that the union meeting on the 18th had been a factor in the
decision to close. Hoffman and Paluscio were not in entire agreement as to the exact
tenor of Blumberg's remarks Of the two, I deem to be more reliable the version given
by Hoffman, who attributed to Blumberg merely an equivocal acquiescence in Hoffman's
assertion that the union meeting was one of the events that preceded the closing of the
plant Blumberg's stipulated testimony contained a denial of any admission by him
that union activity was a factor in the shutdown In view of such denial, and the
equivocal nature of the statement as reported by Hoffman, I find that, if such statement
was made by Blumberg, it was not meant as an admission of discriminatory motivation
but as merely an adoption of Hoffman's recital of the sequence of the events on Febru-
ary 18 and 19 Moreover, even if it be assumed that the statement, as reported by
Hoffman, was an admission of discrimination, there is no demeanor basis for resolving
the resulting credibility issue, as Blumberg, although prepared to do so, was not required
to take the stand, his testimony being stipulated
VALLEY FORGE FLAG COMPANY 1563
not recalled until about 5 months later. Garrison , on the other hand, denied that she
made any inquiry about the union proclivities of the girls she called, insisting that,
pursuant to Alspach 's instructions , she canvassed at least 10 girls about their avail-
ability for work at Womelsdorf , and that Boyer and Lape declared that they would
"stick with the girls ," which she apparently took to mean that they were not inter-
ested in recall , that Garrison instructed all the girls she called , except Boyer and
Lape, to report for work, but that these instructions were promptly countermanded
by Epperly for reasons not here relevant , and no girls were recalled at that time.
Epperly testified that the list of girls to be recalled was compiled at his direction by
Alspach, Moyer , and Kraemer , that he gave no instructions to Garrison regarding
the procedure to be followed by her, and that this was confirmed by Kraemer and
Liberman , who claimed to have been present when the matter was discussed . Neither
Moyer nor Alspach testified on this point.
While I am constrained to find, in view of the mutually corroborative nature of the
testimony of Boyer, Clay , and Lape, that Garrison did ask them about their union
sentiments , I am unable to find sufficient basis for imputing to Respondent responsi-
bility for such interrogation or for Garrison's selecting for recall only those who
appeared indifferent to the Union . Garrison was not proved to be a supervisor, but,
so far as the record shows, merely transmitted to other employees instructions from
management . There is no direct proof that she was told to inquire about the girls'
union sentiments , or not to recall those who were friendly to the Union ; and, while it
is arguable that it is unlikely that she would have in fact interrogated the employees
on her own initiative , the General Counsel produced evidence as to such interroga-
tion only with respect to 3 out of the 10 or more girls who were called by Garrison.
Absent any evidence to the contrary , I must credit Garrison's denial that she asked
any questions about the Union of the other girls . If then, such questions were asked
only of three of the girls called by Garrison , the sporadic nature of such inquiries
argues against any systematic effort by Respondent through Garrison to screen out
union adherents . Accordingly , while the matter is not free from doubt, I do not
believe that the evidence preponderates in favor of a finding that Respondent was
responsible for Garrison 's conduct, and I will recommend dismissal of the allega-
tions of unlawful interrogation , as well as the related contention that Respondent
through Garrison offered reemployment to the Sinking Spring personnel on a dis-
criminatory basis.
3. The 8 ( a)(5) issue
The amended complaint , as further amended at the hearing, alleges an unlawful
refusal by Respondent since February 26, to bargain with the Union for the Sinking
Spring employees , and that since March 4, Respondent bargained in bad faith with the
Union for such employees . Respondent contests the appropriateness of the bargain-
ing unit , the majority status of the Union , and the allegations relating to refusal to
bargain
a. The appiopitale unit
The General Counsel contends that the appropriate bargaining unit is as follows:
All production and maintenance employees of Respondent at its Sinking Spring
plant, as of February 19, 1964, excluding homeworkers , guards, and supervisors
as defined in the Act.
Respondent contends that- (1) Homeworkers should be included in the unit, (2)
a unit limited to the Sinking Spring plant is not appropriate , as the only appropriate
unit is one embracing all Respondent 's operations, and (3 ) a unit of those employed
at Sinking Spring as of February 19 is not appropriate , in any event , because they
were no longer employees of Respondent on February 26, when, as alleged by the
complaint, the Union made its initial bargaining request.
As to the first of these contentions , the record shows that on February 19, there
were 10 persons employed as homeworkers , who picked up material at, and returned
it to, the Sinking Spring plant . These employees were all star sewers and trimmers,
and, like their counterparts in the plant , were paid on a piecework basis. However,
unlike the plant employees , they received no vacation or paid holidays . The Board
has consistently held in analogous cases that homeworkers may be excluded from a
unit of production employees ,`' and I so find here.
7 Terri Lee , Inc, et al . 103 NLRP. 995, 996: Conso Fastener Corpw ation, 120 NLRB
522, R L Polk & C0, 91 NLRB 443 , 445, 118 NLRB 1454 , A. R;vetz Co, 87 NLRB 1352.
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to its second contention, Respondent cites the fact that all five of Respondent's
plants are located within a radius of 45 miles, that, although each plant has its own
manager, the managers of the other four plants are subordinate to the "general man-
ager" at Spring City, that Sidney Liberman, Respondent's president, determines labor
relations policy for all the plants, that supplies for all the plants are purchased at the
Spring City plant, that flags begun at one plant may be finished at another, and that
Sinking Spring shipped flags produced at other plants.
On the other hand, there are normally no interplant transfers or interchanges of
employees, and the plant managers have the authority to hire and discharge 28
employees.
Even if it be assumed, as may well be the case, that the multiplant unit proposed
by Respondent is appropriate, it does not necessarily follow that the single-plant unit
sought here is inappropriate. As the Board has repeatedly stated, in view of the
specific reference in Section 9(b) of the Act to single-plant units, such units are
presumptively appropriate. Therefore, "unless such plant unit has been so effectively
merged into a more comprehensive unit by bargaining history, or is so integrated
with another as to negate its identity, it is an appropriate unit even though another
unit, if requested, might also be appropriate." 29
Here, collective-bargaining history is not a factor 30 and I find that the operations
at Sinking Spring were not so integrated with those of Respondent's other plants "as
to negate its identity." 31
Accordingly, I find that the fact that the unit urged by the General Counsel is
limited to the Sinking Spring plant does not render such unit inappropriate.
There remains to be considered what effect the closing of Sinking Spring had on
the appropriateness of the unit sought. The Respondent contends that such closing
was for an indefinite period, terminating the employer-employee relationship, and
that at the time of the alleged subsequent violations of Section 8(a)(5) of the Act
there was no bargaining unit at Sinking Spring because there were no employees there.
While I do not doubt that the closing of the plant was at all times intended to be
for an indefinite period. if not permanent,32 I nevertheless find that, as such closing
was for discriminatory reasons, the Sinking Spring employees continued, at all times
here relevant, to be entitled to be treated as employees of Respondent under the Act,
and that a bargaining unit composed of such "employees" was appropriate at the
time of the alleged violation of Section 8(a)(5) of the Act. in so finding, I have
relied on the considerations next set forth.
The Board has consistently held in the case of iepresentation elections that employ-
ees discriminatorily discharged before the eligibility date for the election are entitled
to vote,33 and this rule has been applied to a case where the entire plant complement
was discriminatorily discharged more than 3 months before the eligibility date.34 In
so doing. the Board has merely given effect to the statutory definition of "employee"
as including "any individual whose work has ceased . . because of any unfair labor
practice...." And the same result has been reached in an unfair labor practice case
strikingly similar to the instant one,33 where the Board found an unlawful refusal to
bargain with a union whose majority status was acquired after the discriminatory
closing of the Respondent's plant.
29 Liberman so testified While General Manager Davis testified that plant managers
discussed discharges with her, she conceded that her role was merely advisory
20 Dixie Belle Mills, Inc., a Wholly-Owned Subsidiary of Bell Industries, Inc.,
139 NLRB
629, 631. In that case, where there was an even stronger showing than here of functional
integration, and where the case was otherwise analogous to the instant case, the Board
held that the single-plant unit sought by the union-petitioner was not inappropriate
30 These has been no collective bargaining for any of Respondent's plants
Zz See footnote 29, above
32In his brief, General Counsel appears to have abandoned his contention at the hear-
ing that the closing was temporary. In any event, all of Respondent's witnesses on this
point agreed that Liberman told them the closing was for an indefinite period Moreover,
Respondent presented evidence that the plant has remained closed since February 19,
and that efforts have been made to sell or lease the plant At the hearing, I rejected
certain documents relating to such efforts (Respondent's Exhibits Nos 4a to 4h, in-
clusive). However, I hereby reverse that ruling and admit them in evidence
23 E g., Delsea Iron Works, Inc , 136 NLRB 453, 462, enfd 316 F 2d 231 (C.A 3)
3s Ibid
35 Sam Wallick, et al , d/h/a Walhck and Schwalm Corp ; and Spring Mills Apparel,
Inc., 95 NLRB 1262, enfd 198 F 2d 477 (C A 3)
VALLEY FORGE FLAG COMPANY 1565
Accordingly, I find that the following unit is appropriate for purposes of collective
bargaining:
All production and maintenance employees who were employed by Respond-
ent at its Sinking Spring plant on February 19, 1964, excluding homeworkers,
guards, and supervisors as defined in the Act.
b. Majority status
At the hearing, the General Counsel introduced in evidence cards signed on various
dates on and after February 18, authorizing the Union to represent the signatory in
collective bargaining with Respondent. By February 21, the Union had obtained 34
such cards. However, two of those cards were signed by Gernert's son and sister,
both of whom had been validly discharged before they signed the cards, and the
General Counsel concedes that they may not be counted. Respondent challenges the
validity of all those cards signed after February 19 on the ground that the signatories
were not employees of Respondent at the time For reasons already stated, I find
no merit in this contention 36
The record shows that Respondent employed a total of 70 persons at Sinking
Spring during the payroll period ending February 22. Of these, I exclude the 10
homeworkers, Gernert, her son and sister, Heffner,37 Alspach and Moyer, both of
whom became supervisors on February 18, and Kraemer, who, being merely an office
employee, did no production or maintenance work. There thus remains a unit of 53
employees, of whom 31 had validly signed cards for the Union on February 21.
I find therefore that on and after February 21, the Union represented a majority
of the employees in the unit found appropriate above.
c. The refusal to bargain
The complaint, as amended at the hearing, contained two apparently conflicting
allegations-(1) that Respondent has refused to bargain, and (2) that it had bar-
gained, but in bad faith Respondent denies it bargained at all, defending on the
grounds that: (I) The Union was not the majority representative of any of its cur-
rent employees, and (2) no proper request to bargain was ever made upon it by the
Union. As the first of the grounds merely reiterates a contention already rejected,
it requires no further consideration With regard to the issue of a proper request,
Respondent does not dispute the testimony of Union Agents Paluscio and Hoffman
that on and after February 26 they met with representatives of Respondent on a
total of four occasions and that at these meetings Respondent explicated its position
with regard to various matters broached by the Union pertaining to the plight of the
Sinking Spring employees, including their prospects of reemployment.
The principal issue with regard to such testimony is whether the Union raised such
matters in the context of a request that Respondent bargain about them with the
Union as the statutory representative of the Sinking Spring employees or whether,
as Respondent contends, the Union was merely professing to seek on behalf of its
constituents information about Respondent's position and plans, as they affected
such constituents. In the latter case, there would be no request to bargain and
hence no default by Respondent in its bargaining obligation.
I find no merit in Respondent's contention that there was no request to bargain.
The parties met on February 26 and 27 and March 4 and 19. At the first meeting,
according to Hoffman, he informed Liberman that the Union represented a majority
of Respondent's Sinking Spring employees, and that he wished to negotiate about the
rehire of such employees in Respondent's other plants, whereupon he was referred by
Liberman to his attorney, Blumberg. Paluscio confirmed the substance of Hoffman's
foregoing testimony, and it was not disputed by any of Respondent's witnesses. While
Blumberg's (stipulated) testimony contains a denial that at any meeting the Union
stated "how many people they represented" or "discussed `negotiations' or utilized
that term," such denial necessarily applies only to those meetings which Blumberg
himself attended and not to the Union's initial approach to Liberman on February 26
in Blumberg's absence. Accordingly, I find that the Union made it clear at the outset
301n addition, Respondent challenged Heffner's card, which was signed in the evening
of February 18, because she had resigned her employment that afternoon and, although
returning to work the next morning, was allegedly not an employee in the interim be-
tween her quit and return I do not rule on this contention, as her caid is not neces-
sary for a majority , in any event , but it will be assumed foi the purpose of this decision
that she was not an employee when she signed
37 See preceding footnote
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Liberman that it was claiming to be the statutory representative of the Sinking
Spring employees and desired to negotiate concerning their reemployment by
Respondent. Even if it be true, as Blumberg asserts, that this request for bargaining
was not repeated at subsequent meetings,is circumstance would not affect Respond-
ent's obligation to bargain. There is no requirement that a union repeat its initial
bargaining demand at each.and every bargaining session
The question remains whether the Respondent's contribution to the discussion at
the foregoing meetings complied with the requirements of good-faith bargaining.
According to Hoffman and Paluscio, at the March 4 meeting, Respondent furnished
sundry information requested by the Union, related its (economic) reasons for
closing Sinking Spring, disclosed its plans with regard to future hires at its other
plants. agreed to consult with the Union in advance of any such hires, discussed the
eligibility of the Sinking Spring employees for unemployment compensation, agree-
ing to submit to the Union a list of those it considered eligible, and to write to the
State unemployment compensation agency a letter explaining the reason for the
plant closing, so as to facilitate the processing of employee claims ' 39 According to
Hoffman, at the March 19 meeting he taxed Respondent with rehiring employees
without consulting the Union, in breach of its commitment on March 4, and inci-
dentally referred to the fact that Respondent's plants were working overtime, where-
upon Liberman declared that he would do as he pleased, but Blumberg interjected an
admonition to Liberman to discontinue working overtime and recalling employees
without consulting the Union, and again promised to consult the Union in advance
about any rehires. Although, the record shows that at least one Sinking Spring
employee (Boyer) was later rehired, there is no contradiction of Hoffman's testimony
that he was never notified of any such rehire
Blumberg's testimony regarding the topics discussed coincides on many points
with that related above, except that, as to the undertaking to consult with the Union
about rehires, Blumberg's version was that he merely advised Liberman to notify the
Union "as a matter of courtesy" after such rehires,40 and that Liberman indicated
he would give preference in future hires to "the most experienced people who were
available," and that if "any question came tip about it he would be willing to discuss
it at any time." Thus, it appears to be Respondent's position that there was no
agreement for consultation in advance of rehire but only an offer to entertain any
grievance or complaint by the Union about such rehires after they had been effected.
However, I am constrained to find, in view of the mutually corroborative testimony
of Paluscio and Hoffman, and Liberman's failure to corroborate Blumberg,41 that
he was mistaken on this point, and that Respondent did agree to such advance con-
sultation, both on March 4 and 19. 1 find further that Liberman, in effect, acknowl-
edged on March 19 that he had ignored this pledge and that, although renewed on
March 19, it was not honored theieafter.
Accordingly, while Respondent (contrary to its own contention at the hearing)
did bargain with the Union, nevertheless, in view of the fact that it made no effort
to honor the commitments made by it at the bargaining table on March 4 and 19,
with regard to rehire procedure, coupled with the circumstances that, (1) only a
week before bargaining began, Respondent had attempted to obviate any need
therefor by discharging virtually all those in the bargaining unit, and (2) about the
same time as he was meeting with the Union, Liberman as found above, expressed to
Hettinger his opposition to representation of the Sinking Spring personnel by a
union and his determination to retain the absolute right to hire and discharge-in
view of all these matters, I find that, at least on the all-important issue of reemploy-
ment of the Sinking Spring group, Liberman had no intention of dealing with the
Union in good faith, but adopted the policy of putting the Union off (or permitting
his counsel to put it off),42 with promises that Liberman did not intend to keep
Such tactics are not consistent with good-faith bargaining. Moreover, as the Respond-
ent's undertakings on March 4 and 19, to consult the Union in advance of any future
"Blumberg's testimony conflicts in this respect with Floffman's For reasons next
stated in the text, above. I do not deeui it necessary to iesolve such conflict
39 Respondent subsequently did waste such a lettei
40It is clear from Hoffnian's uncontiadicted testinionv that not even such "courtesy"
notice was ever given
41 No question on this subject was put to Liberman on direct, although he testified at
some length on other aspects of the case The inference is warranted therefore that his
testimony on this point would have been of little aid to Respondent
411 do not mean to imply, however, that Blumberg was piivy to Liberman's policy, or
acted from any motive other than the desire to secure compliance with the Act by his client
VALLEY FORGE FLAG COMPANY 1567
rehire excused any specific request by the Union for a meeting on each such occa-
sion, the failure of Respondent so to consult the Union was tantamount to an outright
failure or refusal to bargain with regard to each such rehire.
I find , therefore , that, by the foregoing bad-faith bargaining and outright failure
or refusal to bargain with regard to specific rehires, Respondent has since Febru-
ary 26 43 violated Section 8(a)(5) and (1) of the Act.44
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor prac-
tices, I shall recommend that it be ordered to cease and desist therefrom and take cer-
tain affirmative action necessary to effectuate the policies of the Act and restore
insofar as possible the status quo existing prior to the commission of the unfair labor
practices, as follows:
(1) To the extent that it has not already done so, offer all those who ceased to be
employed as a result of the closing of the Sinking Spring plant reinstatement to their
former or substantially equivalent positions at the Sinking Spring plant, if Respond-
ent resumes operations there, or, failing that, at one of Respondent's other plants in
the Reading, Pennsylvania, area, without prejudice to their seniority and other rights
and privileges, dismissing, if necessary, all employees hired after February 1945 If
there is then not sufficient employment immediately available for the former Sinking
Spring employees, all available positions shall be distributed among them in accord-
ance with the Respondent's usual method of operation under curtailed production,
without discrimination against any employee because of union affiliation or activities,
following the system of seniority, if any, customarily applied in the conduct of the
Respondent's business. Any employees remaining after such distribution for whom
no work is immediately available shall be placed upon a preferential hiring list pre-
pared in accordance with the above principles, and shall thereafter, in accordance
with such list, be offered employment in their former or in substantially equivalent
positions as such employment becomes available and before other persons are hired
for such work.
(2) Offer to pay any extra travel expenses and any moving expenses that may be
incurred by any of the discriminatees as a result of their acceptance of an offer of
reinstatement in one of Respondent's existing plants.
(3) Make whole the employees referred to above for any loss of pay they may
have suffered by reason of the Respondent's discrimination, by payment to them of
a sum of money not exceeding the amount each would normally have earned from
February 19, to the date of an appropriate offer of reinstatement (or placement on
a preferential hiring list), less his net earnings during such period, to be computed on
a quarterly basis in the manner established in F. W. Woolworth Company, 90 NLRB
289, with interest computed at 6 percent per annum as prescribed in Isis Plumbing &
Heating Co., 138 NLRB 716.
43I adopt this date-that of the Union's first bargaining overture-as I am satisfied
that Respondent had no intention at any time to bargain in good faith about reemploy-
ment of the Sinking Spring employees.
"The General Counsel introduced at the hearing certain correspondence between the
Union and Respondent in July relating to renewal of the bargaining meetings While, as
a result thereof, the parties met again, Respondent concedes that the discussion at such
meeting was limited to proposals for settlement of the instant case However, in his
brief the General Counsel does not rely on the foregoing as evidencing a refusal to bargain,
and upon the present record it is not clear that any such refusal has thereby been shown
In any event, as the matter has apparently been abandoned by the General Counsel, I make
no finding with respect to any refusal to bargain on the basis of the foregoing evidence.
451n a proposed remedial order submitted after the hearing, the General Counsel omits
any requirement that Respondent reopen the Sinking Spring plant, presumably in view
of Respondent's showing (see footnote 16, above) as to the economic factors which might
have eventually induced it to close that plant, in any event Under the circumstances,
I do not deem it appropriate to order resumption of the Sinking Spring operation. See
Ethel J Hinz, etc., d/b/a Myers Ceramic Products Co., 140 NLRB 232, 235 ; Wallick &
Schwalm Corporation ; et al., supra.
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) If Respondent resumes operations at Sinking Spring, bargain with the Union
as the representative of its employees at such location with respect to wages, hours,
and other conditions of work If such operations are not resumed , bargain with the
Union about the operation of the preferential hiring list referred to above and about
the terms and conditions to be offered the discriminatees at Respondent 's existing
plants.46
In view of the nature of the unfair labor practices committed , the commission by
the Respondent of similar , and other , unfair labor practices may be anticipated.
The remedy should be coextensive with the threat . It will therefore be ordered that
the Respondent cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and the Union is a labor
organization within the meaning of the Act.
2. All production and maintenance employees at Respondent's Sinking Spring,
Pennsylvania, plant, as of February 19, 1964, excluding homeworkers, guards, and
supervisors as defined in the Act, constitute a unit appropriate for collective bargain-
ing within the meaning of the Act.
3. At all relevant times the Union has been the exclusive bargaining representative,
within the meaning of Section 9(a) of the Act, of the employees in the aforesaid
appropriate unit.
4. Respondent has since February 26, 1964, violated Section 8(a)(5) and (1) of
the Act by failing to bargain with the Union in good faith about the reemployment
of Sinking Spring personnel and by refusing to bargain about the selection of particu-
lar individuals for reemployment
5. Respondent on Febiuary 19, 1964, violated Section 8(a)(3) and (1) of the
Act, by discharging the employees at its Sinking Spring plant because of their
union activities.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in this proceeding and the foregoing findings of fact and
conclusions of law, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, Respondent, Valley Forge Flag Company, Spring City, Pennsyl-
vania, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively, upon request, with International Ladies'
Garment Workers' Union, AFL-CIO, as the exclusive representative of all production
and maintenance employees employed at its Sinking Spring, Pennsylvania, plant on
February 19, 1964, excluding homeworkers, guards, and supervisors as defined in
the Act.
(b) Discouraging membership in the aforesaid labor organization, or in any
other such organization of its employees, by terminating the employment of, and
refusing to reinstate, any of their employees, or by discriminating in any other manner
in regard to their hire or tenure of employment or any other term or condition of
employment, except to the extent permitted by the proviso of Section 8(a)(3) of
the Act.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist the above-
named Union, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, or to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain from any
46The General Counsel proposed that Respondent be ordered unconditionally to bargain
with the Union, upon request, about the reopening of the Sinking Spring plant or about
the effect of the closing thereof. However, in a recent case involving, as here, the dis-
criminatory shutdown of an entire plant, the Board ordered only that the respondent (1)
bargain with the Incumbent union, upon request, about terms and conditions of employ-
ment generally, If the plant was reopened, and (2) absent such reopening, bargain with
the Union about the operation of the preferential hiring list provided for in the Board's
order in that case and about the terms and conditions of reemployment of the dis-
criminatees at the respondent 's other plants . Darlington Manufacturing Company, 139
NLRB 241, 259, 261 See also Wallick & Schwalm Corporation ; et al., supra, at 1266-
1267. 1 have recommended a like order here
VALLEY FORGE FLAG COMPANY 1569
and 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 by Section 8(a) (3) of the Act, as modified by the Labor Manage-
ment Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which is deemed to effectuate the policies
of the Act:
(a) To the extent that it has not already done so, offer to all employees who were
deprived of work by the closing of the Respondent's Sinking Spring plant immediate
and full reinstatement to their former or substantially equivalent positions (with the
necessary traveling and moving expenses), without prejudice to their seniority or
other rights and privileges, and in accordance with the other conditions set forth in
the section of this Decision entitled "The Remedy."
(b) Make whole such employees for any loss of earnings they may have suffered
as a result of the discrimination against them, as provided in the section of this Deci-
sion entitled "The Remedy."
(c) Preserve and, 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 reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) If Respondent resumes its Sinking Spring operation, bargain collectively, upon
request, with International Ladies' Garment Workers' Union, AFL-CIO, as the
exclusive representative of all production and maintenance employees at such opera-
tion, excluding homeworkers, guards, and supervisors, as defined in the Act, and, if an
agreement is reached, embody such understanding in a signed agreement. If Respond-
ent does not resume such operation, bargain, upon request, with the above-named
Union with respect to the reinstatement of its Sinking Spring employees to the extent
required, and in the manner set forth, in the section hereof entitled "The Remedy."
(e) Send to each of the employees referred to in paiagraph 2(a) of this Order a
letter offering reinstatement and setting forth the Respondent's election as to where
it will effect such reinstatement, and include in such letter a copy of the attached
notice marked "Appendix A." 47
(f) Post at all its plants, copies of the attached notice marked "Appendix A."
Copies of said notice, to be furnished by the Regional Director for Region 4, shall,
after being duly signed by Respondent, be posted by it immediately upon receipt
thereof, and be maintained by it foi 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 4, in writing, within 20 days from
the date of receipt of this Decision, what steps the Respondent has taken to comply
herewith.48
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges any
violation other than those found hereinabove.
14 If this Recommended Order is adopted by the Board, the words "a Decision and Order"
shall be substituted for the words "the Recommended Order of a Trial Examiner" in such
notice If this Order is enforced by a decree of a United States Court of Appeals, the
notice shall be further amended by substituting for the words "a Decision and Order"
the words "a Decree of the United States Court of Appeals, Enforcing an Order."
5 If this Recommended Order is adopted by the Board, this provision shall be modified
to read "Notify said Regional Director, in writing, within 10 days from the date of the
Order, what steps the Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, as amended, we hereby notify our employees that*
WE WILL, if we resume operations at Sinking Spring, bargain collectively,
upon request, with International Ladies' Garment Workers' Union, AFL-CTO, as
the exclusive representative of our employees in the appropriate unit described
below, with respect to rates of pay, wages, hours of employment, and other
conditions of work, and, if an understanding is reached, embody it in a signed
7 89-730-66-vol 152-100
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement . If we do not reopen our Sinking Spring plant , we will bargain with
said Union , upon request , about the reinstatement of the employees in such
unit at our other plants.
The appropriate bargaining unit is:
All production and maintenance employees , employed at our Sinking
Spring , plant on February 19, 1964 , excluding homeworkers , guards, and
supervisors as'defined in the Act.
WE WILL NOT discourage membership of our employees in the above-named
or any other labor organization by discontinuing operations or by discriminating
in any other manner in regard to their hire or tenure of employment, or any
term or condition of employment.
WE WILL offer all employees who were deprived of employment as a result
of the shutdown of our Sinking Spring plant immediate and full reinstatement
to their former or substantially equivalent positions , without prejudice to their
seniority or other rights and privileges previously enjoyed. If our Sinking Spring
plant is not reopened , we will offer such reinstatement at our other plants,
together with the necessary traveling and moving expenses.
WE WILL make all said employees 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-organization , to form labor orga-
nizations , to join or assist the above -named or any other labor organization, to
bargain collectively through representatives of their own choosing , and to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities , except to
the extent that such rights 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.
All our employees are free to become or remain, or refrain from becoming or
remaining , members of International Ladies' Garment Workers' Union, AFL-CIO,
or any other labor organization.
VALLEY FORGE FLAG COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if serving in the Armed Forces
of the United States of their right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania,
Telephone No. 735-2612, if they have any questions concerning this notice or com-
pliance with its provisions.
Falstaff Beer Distributors of Greater Miami and Carroll M.
Everett. Case No. 12-CA-3025. June 15, 1965
DECISION AND ORDER
On March 15, 1965, Trial Examiner Louis Libbin issued his Decision
in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that the Respondent had not engaged
152 NLRB No. 162.