Vinita Garment Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 29, 1946

67 N.L.R.B. 915 (N.L.R.B. 1946)

In the Matter of SAM BRAUER, ETTA BRAUER, MAX GRESSMAN AND
ELSIE GRESSMAN, CO-PARTNERS DOING BUSINESS AS VINITA GARMENT
MANUFACTURING COMPANY and AMALGAMATED CLOTHING WORKERS
of AMERICA, CIO
Case No. 16-C-1250.-Decided April 29, 1946
DECISION
AND
ORDER
On February 25, 1946, the Trial Examiner issued his Intermediate
Report in the above entitled proceeding, finding that the respondents
had engaged in and were engaging in certain unfair labor practices,
and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in a copy of the Intermediate
Report attached hereto. Thereafter, the respondents filed exceptions
to the Intermediate Report and a supporting brief; counsel for the
Board also filed a brief. A request for oral argument before the Board
at Washington, D. C., was made by the respondents, but was later with-
drawn, and, accordingly, no oral argument was held.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents, Sam Brauer, Etta Brauer,
Max Gressman and Elsie Gressman, co-partners doing business as
Vinita Garment Manufacturing Company, Vinita, Oklahoma, and
their officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Clothing Workers
of America, CIO, or any other labor organization of their employees,
by discharging, or refusing to reinstate any of their employees, or by
67 N. L. B. B., No. 111.
915
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminating in any other manner in regard to the hire or tenure
of their employment, or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist Amalgamated Clothing
Workers of America, CIO, 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 bargaining
or any other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Freda Cheek immediate and full reinstatement to her
former or a substantially equivalent position without prejudice to
her seniority or other rights and privileges;
(b) Make whole Freda Cheek and Bettye Seigel for any loss of pay
they may have suffered by reason of the respondents' discriminatioh
against them, in the manner set forth in that Section of the Inter-
mediate Report entitled "The remedy";
(c) Post at their plant at Vinita, Oklahoma, copies of the notice
attached to the Intermediate Report marked "Appendix A." 1 Copies
of said notice to be furnished by the Regional Director of the Six-
teenth Region, shall, after being only duly signed by the respondents'
representative, be posted by the respondents immediately upon receipt
thereof, and maintained by them for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the respondents to insure that said notices are not altered, defaced,
or covered by any other material;
(d) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the receipt of this Order, what steps
the respondents have taken to comply herewith.
INTERMEDIATE REPORT
Mr. Glenn L. Moller, Esq ., for the Board.
Mr. Myer M. Rich , Esq., of Kansas City, Mo., for the Respondent.
Mrs. Helen Hain, of Joplin , Mo., and Mr. Sam Kolkey, of Kansas City, Mo.,
for the Union.
STATEMENT OF THE CASE
Upon a second amended charge duly filed November 19, 1915, by Amalgamated
Clothing Workers of America, CIO, herein called the Union, the National Labor
Relations Board, herein called the Board, by its Regional Director for the Six-
i Said notice, however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner" and substitut-
ing in lieu thereof the words "A Decision and Order."
VINITA GARMENT MANUFACTURING COMPANY 917
teenth Region (Forth Worth, Texas), issued its complaint dated November 28,
1945, against Sam Brauer, Etta Brauer, Max Gressman and Elsie Gressman,
co-partners doing business as Vinita Garment Manufacturing Company,' Vinita,
Oklahoma, herein called the respondents, alleging that the respondents had
engaged in, and were engaging in unfair labor practices within the meaning
of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint
accompanied by notice of hearing were duly served upon the respondents and
the Union.
With respect to the unfair labor practices the complaint alleged in sub-
stance : (a) that on July 19, 1945, the respondents discharged Bettye Seigel,
and on July 23, 1945, discharged Freda C Cheek, and have since refused to re-
instate them because of their membership in and activities on behalf of the
Union ; (b) that from and after July 16, 1945, the respondents have vilified,
disparaged and expressed disapproval of the Union ; interrogated their employees
concerning their union affiliation ; urged, persuaded, threatened and warned
their employees to refrain from assisting, becoming members of or remaining
members of, the Union, and threatened to close the Vinita plant if the employees
attempted to organize; (c) that by the foregoing conduct the respondents have
engaged in unfair labor practices within the meaning of Section 8 (1) and (3)
of the Act.
At the opening of the hearing the respondents filed an answer in which they
(1) denied that they were engaged in commerce within the meaning of the Act
and subject to the jurisdiction of the Board; (2) denied that they discharged
Bettye Seigel but averred that she voluntarily quit her employment ; admitted
that they discharged Freda C. Cheek but averred that the said discharge was
for cause and not because Freda C. Cheek had engaged in union activity.
Pursuant to notice, a hearing was held in Vinita, Oklahoma, on December 11,
12 and 13, 1945, before Louis Plost, the undersigned Trial Examiner, duly desig-
riated by the Chief Trial Examiner All the parties were represented and par-
ticipated in the hearing and were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to present evidence bearing upon the
issues.
At the close of the Board's evidence and again at the close of the hearing
the respondents' counsel moved to dismiss the complaint on the grounds (1)
that the Board had no jurisdiction; (2) that the complaint was not sustained
by the evidence. The undersigned reserved ruling. Likewise at the close of
the hearing the respondents' counsel moved to strike the testimony relating to
alleged statements in violation of Section 8 (1) of the Act made by employees
Mrs. Rucker, Ruby Frits and Katherine Hemphill on the ground that they were
not supervisory officials of the respondent. Ruling was reserved. Elsewhere
in this report the status of Mrs. Rucker, Ruby Frits and Katherine Hemphill
is determined by the undersigned. The motion is denied.
At the close of the hearing the Board's counsel moved to conform the complaint
to the proof as to formal matters such as names and dates. The respondents'
counsel made a similar motion as to the answer. Both motions were granted
without objection by the undersigned.
I The complaint was issued against Sam Brauer, Etta Brauer, Max Gressman and Elsie
Gressman , co-partners doing business as Brauer -Gressman Company and Vinita Garment
Manufacturing Company . At the reopened tiearing hereinafter mentioned , counsel for the
Board moved to amend the complaint by deleting the name "Brauer -Gressman" therefrom.
The motion was granted without objection and the reporter was instructed to change the
title of the case and the captions of all formal documents to conform to the motion.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All the parties were afforded an opportunity to argue orally on the record
and to file briefs with the undersigned. No arguments were presented. Briefs
have been received from the respondents' counsel and from the attorney for the
Board.
Under date of January 23, 1946, the Chief Trial Examiner issued an order
reopening the hearing for the purpose of receiving supplementary testimony to
reveal the basis upon which the Board contended that a cease and desist order
should issue against the respondents doing business as Brauer-Gressman Com-
pany in Kansas City, Missouri, for activities giving rise to alleged unfair labor
practices wholly alleged to have occurred in a plant operated by the respondents
under the name of Vinita Garment Manufacturing Company in Vinita, Okla-
homa, and further to receive the testimony of Max Gressman, one of the co-
partners whose affidavit was filed by the respondents in lieu of testimony after
the close of the hearing, said Max Gressman not being available during the
hearing. During the course of the first hearing Amel Ketchum was asked by
the respondents' counsel if he had received complaints regarding Cheek's work
from Hemphill. The undersigned sustained an objection to the question and did
not permit Ketchum to answer. The Chief Trial Examiner's Order directed
the Trial Examiner to take the testimony of Ketchum as to complaints made to
him by Hemphill regarding the character of Cheek's work and to take such
further material and competent testimony as the parties might offer.
The undersigned set the date of the reopened hearing for February 12, 1946,
in Vinita, Oklahoma. Due notice was given all parties. Accordingly on Febru-
ary 12, 1946, the hearing was reopened before the undersigned in Vinita, Okla-
homa. All the parties were represented and participated and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to pre-
sent evidence bearing upon the issues.
Counsel for the Board moved to amend the complaint by striking the name
Brauer-Gressman therefrom so as to allege violations of the Act by Sam Brauer,
Etta Brauer, Max Gressman, Elsie Gressman, co-partners doing business as Vinita
Garment Manufacturing Company only. The motion was granted without ob-
jection. Counsel for the respondent renewed his motion to dismiss the complaint
on the ground that the Board lacked jurisdiction. The undersigned reserved
ruling. The motion is denied. All the parties were afforded an opportunity to
argue orally on the record and to file supplementary briefs with the undersigned.
All the parties waived argument and the filing of supplementary briefs.
Upon the record thus made and from his observation of the witnesses, the un-
dersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondents, Sam Brauer, Etta Brauer, Max Gressman and Elsie Gressman
are co-partners, doing business as Brauer-Gressman Company in Kansas City,
Missouri, where their principal office is located and as Vinita Garment Manu-
facturing Company in Vinita, Oklahoma? All the materials used by the re-
spondents in its Vinita plant, the only one here involved, are shipped to Vinita
from the respondents' Kansas City plant and all the finished products manu-
factured in the respondents' Vinita plant are shipped to the respondents' Kansas
I Sol Segal , assistant general manager of Hoth respondents ' manufacturing operations,
testified that subject to the superior authority of Brauer and Gressman , the owners, he
exercised complete authority over the Vinita plant. Finley managed the Vinita plant
under the control and authority of Sol Segal.
VINITA GARMENT MANUFACTURING COMPANY 919
City plant. The respondents began their Vinita operations in May 1945. The
first shipment of finished material was made from the Vinita plant approxi-
mately June 29, 1945. During its operation at Vinita, the respendents shipped
to Vinita cloth yard goods having a dollar value of $25,000. The respondents'
annual sales at their Kansas City plant are in excess of $1,000,000. In excess of
50 percent of all the respondents' products is sold and shipped to points out-
side the State of Missouri. The respondents are engaged in commerce within
the meaning of the Act?
II..T IE ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America, CIO, is a labor organization
admitting to membership employees of the respondents.
III. THE UNFAIR LABOR PRACTICES
A. The supervisory status of Frits, Rucker, and Hemphill
The respondents began the installation of their plant for the manufacture of
men's and boys' trousers, at Vinita, Oklahoma, in April 1945. The first manu-
facturing operations began on May 2, and the first shipment of finished merchandise
was made on June 29. Vinita is not an industrial community, in fact the respond-
ent's factory is the only one in the town. The respondents were compelled to em-
ploy workers entirely unskilled in their operations. They began by training a
small group of workers in the simplest operations, then advancing them to more
complex work, and filling their places with a new untrained group. In this man-
ner a force sufficiently trained to manufacture trousers was obtained. From
among their Vinita employees the respondents selected certain apt individuals to
act as instructors and overseers. Lloyd Finley, the manager of the respondents'
Vinita plant,' testified in regard to the duties of these selected individuals; "I
line out the work to the people I am training to follow through." Finley testi-
fied that he delegated to these individuals, to whom he referred as "instructors,"
the authority to oversee work ; cheek on quality ; to make suggestions, and to re-
port on the work of operators.
Ruby Frits was employed by the respondents from July until October 17, 1945.
She was a supervisor in the finishing department. Regarding the instructions
she received from Finley at the time she was made a supervisor Frits testified :
Well, he told me that I was to see that the pants were made properly, that I
was to teach the operators how to run the machines and how to sew the
seams that they were supposed to sew and I was to keep the girls busy all of
the time and report to him if they did not or if they slacked up on their
work and if I saw any of them laying down on the job, I was to report to him,
and if they were too much so, I wasn't even to report it, just tell them that
we could not use them any more.
8 The respondents contend that they are not engaged in commerce within the meaning
of the Act . The undersigned finds no merit in this contention . N. L. R. B. V. Fainblatt,
306 U. S. 601 . Newport News Shipbuilding a Dry Dock b'o. V. N. L. R. B., aff'd 101 P.
(2d) 841-843 (C. C. A. 4), 308 U. S. 41 . See N. L. R. B. v . Van De Kamp 's Holland-Dutch
Bakers, Inc., 152 F. (2d) 818 (C. C A. 9) No. 10, 949, decided January 7, 1946, where the
Court said : "It Is the intent of Congress, expressed in Section 1 of the Act, that the free
flow of commerce must not be interrupted , obstructed , or burdened by industrial strike or
unrest Congress intended to eliminate , by protecting workers In their various rights enu-
merated in the Act, the causes of substantial obstructions to the free flow of interstate
commerce. It matters little where the obstruction to that free flow of commerce occurs "
4 Finley's status is not in dispute.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frits further testified that during the course of her employment as a super-
visor she discharged and employed workers without previously clearing with
Finley. The above-related testimony of Frits was riot denied and is credited by
the undersigned.
Both Frits and Finley testified that Mrs. Rucker was an employee of the re-
spondents whose duties and status were identical with the duties and status of
Frits.
The respondents contend that they have no supervisors in their Vinita plant
(other than Finley) and that neither Frits nor Rucker had supervisory status
The respondents define a supervisor as a person capable of performing every
operation necessary to the manufacture of their product, one able to instruct
others in every operation, having ability to work with others, and possessing such
qualities of leadership as to obtain maximum efficiency from employees Finley
testified that a supervisor could not ordinarily be developed in less than 4 years.
Sol Segal, the assistant general manager of all the respondents' operations,
testified :
A supervisor in a garment factory is a person who is capable of taking corn-
plete charge of a line or section without additional supervision.
Q. And what qualifications does a supervisor require?
A. That would automatically require years of actual craftsmanship
together with personnel experience so as to combine the two in teaching
and planning that part of production.
The standards set by the respondents would undoubtedly produce an ideal
supervisory official. However, under the Board's criterion, employees who
exercise such authority as did Frits and Rucker, including the right to dis-
charge, are supervisors regardless of the actual degree of skill they possess in
the craft in which they may function. The undersigned finds that Frits and
Rucker were supervisory employees whose acts and statements were binding on
the respondents during all the time material to the issues herein.
The record further discloses that Katherine Hemphill was an inspector and
had no supervisory authority.
B. Interference, restraint, and coercion
The Union's organizer arrived in Vinita on July 16 and called on Bettye
Seigel who accepted authorization cards from her. Seigel and employee, Freda
Cheek began the distribution of these cards among fellow employees on July 17.
Seigel's employment with the respondent was terminated July 19. Cheek was
discharged July 23.
Shirley Mahanes, employed by the respondents as an office clerk during July
1945, testified that sometime between July 16 and July 19, Manager Finley asked
her If she had joined the Union. Mahanes replied that she had not. Finley
then asked if she had heard of the Union and if she had signed a card. Mahanes
further testified that Finley asked her if Seigel and Cheek were "for the union,"
and that shortly before Cheek was discharged Finley asked Mahanes if she
knew that Cheek was "taking up money for the union." Mahanes testified
that after Seigel's employment had been terminated Finley asked her if Seigel
had circulated union cards on the respondents' time Mahanes also testified
that during this same period Mrs. Rucker asked her if she had heard of
the Union and asked if Mahanes had signed a union authorization card. Mrs.
Rucker also asked if Mahanes did not know that Cheek had "taken up" money
for the Union. Mahanes testified the latter question was asked her by Mrs.
Rucker before Finley made the same inquiry.
VINITA GARMENT MANUFACTURING COMPANY 921
Mrs. Rucker was not called to testify. Finley denied all the statements attrib-
uted to him by Mahanes. Finley did not impress the undersigned as a trust-
worthy witness. He was evasive, gave few direct answers, and when pressed
for direct answers frequently volunteered statements in an evident attempt to
counteract his original reply. Mahanes impressed the undersigned as being
an honest and forthright witness The undersigned credits Mahanes and finds
that Rucker and Finley made the above-related statements attributed to them
by Mahanes.
Freddy Scott, who was employed by the respondents as a general helper during
the summer of 1945, testified that he was given two authorization cards by Seigel,
while she was still employed in the respondents' plant. Approximately one week
later Scott gave these cards to Finley.' Scott testified that while the cards were
still in his possession Mrs. Rucker asked him if he had signed a card, and if certain
other employees, some of whom she named and some of whom she pointed out,
had signed cards. He further testified that before Cheek's discharge Mrs. Rucker
asked him whether Cheek was circulating union cards.' Scott testified that shortly
after he turned the two authorization cards over to Finley, he met Finley on the
street in the vicinity of the plant and that he then asked Finley if he resented
his having accepted the cards. Finley, answered Scott that he "would not hold
it against him" and added that the Union might be "all right later" but that now
all the employees were "new operators " Scott testified that after Seigel's ter-
mination, Finley in a conversation with him, said that he had not thought Seigel
was "the kind of a girl to start trouble or bite the hand that fed her."
Finley denied making any of the statements attributed to him by Scott. Scott
is 17 years old, and at present a college student. He impressed the undersigned
as a wholly truthful witness The undersigned credits Scott's testimony and finds
that Finley and Rucker made the statements attributed to them by Scott as above
related
Ruby Frits testified that on July 19 (the same day Seigel's employment ended),
employee Tipton, told her that she and her sister had signed union authorization
cards, but as they had heard rumors to the effect that all the employees who
signed cards would be discharged, they wished that Frits would speak to Finley
in their behalf. Frets reported the incident to Finley who told her : "You go back
and tell the girls if that will be the last of the Union, they may keep their jobs."
Finley also instructed Frits to ask all the operators if they had signed cards.
Frits did so, and reported that only the Tipton girls admitted signing cards, upon
which, according to Frits' testimony, Finley said, "That's all right, but when we
hire operators, that's the first orders, and you teach them and tell them if they
want to work here, that they have nothing to do with the Union " Frits testified
that she followed these instructions thereafter.'
Frits was discharged by the respondents October 17, 1945. The respondents
contend that Frits' testimony was colored by animosity toward Finley Sol
Segal, respondents' general manager, testified that sometime after her discharge
Frits told him "I will get even with Mr Finley." Frits testified regarding Finley,
"As a man I haven't got no use for him " Despite Frits admitted ill feeling
toward Finley, the undersigned is convinced that she was a trustworthy witness.
Moreover, her testimony was not denied. The undersigned credits Frits.
6 Finley testified that he forwarded these cards to the respondents' Kansas City office,
and further that he had no knowledge of any union activity among the employees until
July 25, the date he received the cards
9 Frits further testified that she first obtained knowledge of union activity among the
respondents ' employees through a conversation with Finley who said to her that the plant
might close because "They are trying to organize this union up here and we are not going
to have a union or any of that here."
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned finds that by the statements of Manager Finley and Super-
visor Rucker to Mahanes and Scott, and by the conduct of Ruby Frits in carry-
ing out the order of Manager Finley, and by their totality, the respondents have
interfered with, restrained, and coerced their employees in the exercise of the
rights guaranteed in Section 7 of the Act.
0. The discriminatory discharge of Bettye Seigel
Helen Hain, the organizer for the Union, first arrived in Vinita July 16, 1045,
and conferred with Bettye Seigel at her home. Hain left union authorization
cards with Seigel and later that same evening, accompanied by Seigel's younger
sister, called on Mrs Rucker. Hain was driving a red automobile. The fol-
lowing day Hain called on Freda Cheek at her home ; left Cheek authorization
cards, and requested her to cooperate with Seigel in this distribution.
Seigel and Cheek both testified that on the night of July 17 they sought out
various of the respondent's employees, in the town's business district, and ob-
tained their signatures on union authorization cards. Seigel testified that she
was employed as a "serger" and worked directly under the supervision of Mrs.
Rucker. On July 17, while Seigel was at her work, Mrs. Rucker asked her if
she did not have a little sister, and then added, "I thought that's who it was
that came out to my house the other night, with the lady in the red car." Mrs.
Rucker then asked if Seigel knew "that union lady." Sometime later in the day
Mrs. Rucker asked Seigel if she "was for the Union." Seigel replied "Yes."
Seigel further testified that on July 19, at about 8: 30 a. in. while she was at her
work, Finley told her. "Since you are going to leave anyway, you just go now."
Seigel then went to the office and asked the office clerk for her pay statement.
Finley entered the room and upon being told of Seigel's request told her that the
checks would be in from the Kansas City office "a week from Friday" and added
"If that's all you want to know, just go and get out, we are busy people around
here and you are in the way." Seigel's above-related testimony is uncontradicted
and is credited.
The respondents contend that Seigel voluntarily quit her employment. Seigel
testified that shortly after July 4, she informed Finley that she intended to
leave within "a couple of weeks" in order to visit her sister in Colorado. At
Finley's request she agreed to remain at work until such time as she would ac-
tually leave on the trip, in order to enable Finley to replace her. Approximately
2 days before the termination of her employment Finley again asked Seigel the
date she expected to leave. Seigel replied that she expected to go during the
next week whereupon Finley again asked that she remain at work until the day
before her departure. Seigel agreed to do so. The undersigned credits Seigel's
testimony.
Frits testified that on the last day Siegel worked at the respondents' plant,
Mrs. Rucker told her, "Mrs. Frits , Bettye is getting put out." Frits asked the
reason, and Mrs. Rucker replied, "Well, Mr. Finley had found out that she was
the girl that passed the union cards ." Rucker was not called to testify. The
undersigned credits Frits' testimony.
Seigel testified that she did not desire reinstatement.
Concluding findings on the discharge of Bettye Seigel
While the record is clear that Seigel Informed the respondents she intended
to quit her employment and undoubtedly would have done so shortly after July
19, the record is equally clear that the respondents did not afford Seigel the op-
portunity to quit as had been contemplated. Despite the respondents' request
VINITA GARMENT MANUFACTURING COMPANY 923
and Seigel's agreement to continue working until the day before she left for
Colorado, the respondents abruptly dismissed her several days prior thereto.
Finley testified that he had no knowledge of any union activity among the
respondents' employees prior to July 25. The record is conclusive that Mrs.
Rucker possessed such knowledge. The credited testimony of Frits shows that
Finley also had such knowledge prior to Seigel's discharge. The undersigned,
therefore, does not credit Finley's testimony to the effect that he had no knowledge
of the Union until Scott gave him the union card on July 25. That the respond-
ents were firmly opposed to the Union and were making a determined effort to
ascertain which of their employees favored the Union is clear from the findings
made above. The union organizer came to Vinita on July 16. On July 17 and 18
Seigel was active in soliciting union memberships. On the morning of July 19
Seigel was discharged. The undersigned is convinced from the entire record, and
finds, that the only plausible explanation for Finley's sudden reversal of position
in abruptly dismissing Seigel just 2 days after he had requested her to continue
working until the following week, was that Finley had learned of Seigel's union
activity.
Upon the entire record in the case the undersigned finds that the respondents
discharged Bettye Seigel on July 19, 1945, because of her membership in and
activities on behalf of the Union, and that by such discharge the respondents have
discriminated in regard to her hire and tenure of employment and have dis-
couraged membership in a labor organization, and thereby interfered with,
restrained, and coerced their employees in the exercise of the rights guaranteed
in Section 7 of the Act.
D. The discriminatory discharge of Freda Cheek
Freda Cheek was employeed by the respondents from June 27, 1945, until July
23,1945, on which date she was admittedly discharged.
Cheek met the Union's organizer on July 17, and together with Seigel dis-
tributed union authorization cards that evening.
On Saturday, July 21, Finley asked her to come to his office and according to
Cheek's testimony there said to her, "I heard you are union minded." Cheek
replied, "I don't know what about the union, I have never had anything to do
with it before." Finley then told her that if the respondents' employees were
unionized the respondents would "have to get" all experienced help and that a
"certain percent would be put out." On Monday, July 23, Finley came to Cheek at
her work and instructed her to bring her scissors to the office where he said to
her, "Here is your check. Your interest is not here any longer." Cheek then said
to Finley, "If you are referring to that union, I have never said a word here at
the plant" Finley replied, "It is not that that I am referring to. Your interest
is not here any longer." Cheek then left the plant.
The respondents contend that Cheek was discharged for inefficiency and because
she interfered with the work of others by excessive talking.
Cheek's work consisted of "cleaning" thread from finished trousers, which
means clipping the excess threads left by the sewers. She also inspected the
seams and buttons. Cheek worked with Katherine Hemphill. Hemphill, who is
a local school teacher, was employed by the respondents as a final inspector from
June 12, until the beginning of the school year, September 1. Hemphill worked
together with Cheek at "cleaning" about one half of her time, and spent the rest
of her time at final inspection. It was admitted that it was customary for any
other employee having free time to work with Cheek.
Hemphill testified that it was her duty to inspect every garment manufactured
in the plant ; that Cheek's work was satisfactory and showed progressive improve-
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment. Hemphill further testified that she and Cheek talked together while at
work but at no time did Cheek talk so much as to disturb other employees.
Finley testified that Cheek left so many threads on the garments she "cleaned"
that they required additional cleaning after they were sent to the pressers.
He also testified that Cheek spent one third of her time in conversation with
other employees. Finley testified that on Saturday, July 21, he called Cheek
to the office ; told her that her work was unsatisfactory ; that she spent too
much time talking, and that this would be his final warning to her. He denied
that lie told Cheek she was "union minded," or that unionization would neces-
sitate the respondents employing experienced help. The undersigned credits
Cheek's version of the Saturday, July 21, conversation. Finley further testified
he had received complaints regarding Cheek's work from Amel Ketchum, the
respondents' pressing machine operator and from Hemphill. Hemphill did not
testify that she complained to Finley, but did testify that Finley criticized the
work of all the employees.
Ketchum, employed by the respondent as a presser, testified that Cheek's work
was not satisfactory in that the trousers she "cleaned" came to him with so
many excess threads attached that they required recleaning, which work he
helped Hemphill do. However, Hemphill testified she could recall but one occa-
sion on which Ketchum helped her and that she could not remember what he
did at the time. Ketchum testified that no employee, other than Hemphill,
worked at "cleaning" with Cheek. This was contradicted by Cheek, Hemphill
and Frits. Ketchum testified that Hemphill complained to him regarding Cheek's
work. Hemphill denied that she ever complained of Cheek's work to Ketchum.
Ketchum further testified that as soon as Cheek was replaced the "cleaning"
job was perfectly done.
The record indicates that Cheek was replaced by an inexperienced employee.
Hemphill testified :
I always had to clip threads in final inspection.
Q. Even after you conducted the first inspection ["cleaning"] yourself?
A. That's right.
Ketchum did not impress the undersigned as a credible witness. Hemphill, on
the contrary, impressed the undersigned as credible. The undersigned, therefore,
does not credit Ketchum, but does credit Hemphill and finds that Cheek's work
was satisfactory. In crediting Hemphill the undersigned does not accept as true
the testimony of Finley to the effect that Cheek's work was unsatisfactory and
that she spent one third of her time in talking to other employees.
As previously found, sometime before Cheek was discharged Mrs. Rucker
asked Mahanes if she knew "that Mrs. Cheek had taken up money for the
Union," and sometime later Finley asked her the same question. Likewise, as
previously found, Mrs. Rucker asked Scott if Cheek had passed authorization
cards.
Frits testified that on the day of Cheek's discharge :
Mr. Finley came up the line in the morning, it must have been 9:30 or
10:00 o'clock when he made his rounds. He said, "Do you know that is
another one of those union guys over at the cleaning table?" I said "No. I
didn't, Mr. Finley," and he says, "Well, it is, and we will get rid of her at
noon."
Only Cheek was at the cleaning table at the time. Finley then instructed
Frits to tell Cheek to bring her scissors to the office when she checked out at
noon. However, Frits delayed informing Cheek and before noon Finley himself
told Cheek to come to the office, where she was discharged. Frits testified that
VINITA GARMENT MANUFACTURING COMPANY 925
after Cheek's discharge, Finley said to Frits, "That would be a lesson for the
other employees."
Frits' testimony was not denied and is credited by the undersigned.
Concluding findings on the discharge of Freda Cheek
Cheek worked in the respondents' Vinita plant approximately 25 days. She
was inexperienced, as were her fellow employees who are characterized in the
record as "amateurs." While it is true that the pressers called Finley's atten-
tion to the threads remaining on the trousers after "cleaning," the entire fault
cannot be attributed to Cheek. Employees who had any idle time were inter-
mittently assigned to work with Cheek. Hemphill, who worked with Cheek,
testified that she removed threads from garments in final inspection, even after
she had done the original "cleaning" herself. All of the employees were inex-
perienced and were in the process of learning their assigned tasks. It is not
unusual that complaints and criticism would be made during this period. The
credible evidence reveals that although Cheek's work was not perfect, it was
no worse nor better than that of the other employees. The undersigned is
convinced that Cheek's work, judged together with the work of inexperienced
"amateurs" was not of such low quality as to bring about her discharge.
Despite Finley's testimony that on Saturday July 21, he told Cheek that her
work was unsatisfactory ; that she talked too much, and that he further informed
her that this was his last warning to her, nevertheless, on Monday July 23,
approximately 3 working hours later, Finley discharged her. There is nothing
in the record to show, nor (lid Finley so testify, that anything occurred in the
interim with respect to Cheek's work or conduct to warrant her discharge.
In fact, at about 9:30 or 10 o'clock that morning Finley indicated to Frits that
he was going to get rid of Cheek at noon that day because she was "one of those
union guys."
The record discloses the respondents' fixed purpose to defeat self-organization
of their employees. Cheek and Seigel were the only employees active on behalf
of the Union. Seigel was discharged within 2 days after she first engaged in
union activity. Two days following Seigel's discharge Cheek was in effect
warned, by Finley, regarding her union adherence. The warning was on Satur-
day. On Monday Cheek was discharged. Cheek's testimony that at the time
of her discharge, Finley told her, "Your interest is not here any longer," re-
mains undenied. The undersigned is convinced that Cheek's union membership
and, activity and not the poor quality of her work or excessive talking was the
reason for her discharge
The undersigned finds, upon the entire record in the case, that the respondents
discharged Freda Cheek on July 23, 1945, because of her membership in and
activities on behalf of the Union, and that by such discharge the respondents
have discriminated in regard to her hire and tenure of employment, discouraged
membership in a labor organization, and thereby interfered with, restrained,
and coerced their employees in the exercise of the rights guaranteed in Section
7 of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents, set forth in Section III above, occurring
in connection with the operation of the business of the respondents described
in Section I above, have a close, intimate and substantial relation to trade, traf-
fic and commerce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Since it has been found that the respondents have engaged in unfair labor
practices, it will be recommended that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
As clearly reflected by the entire record in the case the respondents' illegal
conduct discloses a purpose to defeat self-organization and its objects among
their employees. As soon as their employees made the first attempt toward
self-organization the respondents' fixed purpose to thwart their efforts became
apparent through systematic interrogation, advice to refrain from joining or re-
maining members of the Union and the discriminatory discharge of Seigel and
Cheek. Inasmuch as a discriminatory discharge "goes to the very heart of the
Act,"' the undersigned is convinced that the respondents' unlawful conduct as
found herein, together with its underlying purpose to defeat their employees'
Attempted self-organization at its very inception, are persuasively related to the
other unfair labor practices hereinafter proscribed and that danger of their
commission in the future is to be anticipated from the respondents' illegal con-
duct in the past. The preventive purposes of the Act will be thwarted unless
the recommended order is coextensive with the threat. In order, therefore, to
make effective the interdependent guarantees of Section 7, to prevent a recurrence
of unfair labor practices, and therefore to minimize strife which burdens and
obstructs commerce, and thus effectuate the policies of the Act, the undersigned
will recommend that the respondents cease and desist from in any manner
infringing the rights guaranteed in Section 7 of the Act.
Since it has been found that the respondents discriminated in regard to the
hire and tenure of Bettye Seigel, thereby discouraging membership in the Union,
the undersigned will recommend that they make her whole for any loss of pay
She may have suffered because of the discrimination practiced against her by
payment to her of a sum of money equal to that which she normally would have
earned as wages from July 19, 1945, to the date she would have quit 8 less her
"net earnings"' during said period. Because Bettye Seigel testified that she
did not desire reinstatement, the undersigned will not recommend that the Board
make its usual order of reinstatement as to her. i
Since it has been found that the respondents discriminated in regard to the
hire and tenure of Freda Cheek, thereby discouraging membership in the Union,
the undersigned will recommend that the respondents offer Freda Cheek imme-
diate and full reinstatement to her former or substantially equivalent position
without prejudice to her seniority or other rights and privileges and make her
whole for any loss of pay she may have suffered by reason of the discrimination
N. L. R. B. v. Entwistle Manufacturing Co., 120 F. ( 2d) 532, 536 (C. C. A. 4). See also
N. L. R. B . v. Automotive Maintenance Machinery Co., 116 F. (2d) 350, 353 (C. C. A. 7),
where the Court observed : "No more effective form of intimidation nor one more violative
of the N. L. R. Act can be conceived than discharge of an employee because he Joined a
union . .
s Since the record falls to establish exactly on what day Seigal intended quitting the
undersigned is unable to set a definite date . However, the record is clear that she would
have left the respondents ' employ, absent the unfair labor practices , within the week
following the day of her discharge . See footnote 20 of Board 's Decision and Order in
Fairmont Creamery Company, 64 N. L. R, B. 824.
# By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondents, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company, 8 N. L. R. B. 440. Monies received for work performed upon
Federal, State , county, municipal , or other work -relief projects shall be considered as earn-
ings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
VINITA GARMENT MANUFACTURING COMPANY 927
practiced against her by payment to her of a sum of money equal to the amount
she normally would have earned as wages from July 23, 1945, the date of her
discriminatory discharge, to the date of the respondents' offer of reemployment,
less her net earnings 10 during said period.
Upon the foregoing findings of fact and upon the entire record in the case, the
undersigned makes the following:
CoNct.ustoNs of Law
1. Amalgamated Clothing Workers of America, CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Bettye
Seigel and Freda Cheek the respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section 8 (3) of the Act.
3 By interfering with, restraining, and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act the respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the Trial
Examiner recommends that the respondents Sam Brauer, Etta Brauer, Max
Gressman, and Elsie Gressman, co-partners doing business as Vinita Garment
Manufacturing Company, Vinita, Oklahoma, their agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Clothing Workers of America,
CIO, or any other labor organization of their employees, by discharging or refus-
ing to reinstate any of their employees, or in any other manner discriminating
in regard to the hire or tenure of their employment, or any term or condition of
their employment ;
(b) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Amalgamated Clothing Workers of America, CIO, 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
bargaining or any other mutual aid or protection, as guaranteed in Section 7 of
the Act.
2 Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act:
(a) Offer to Freda Cheek immediate and full reinstatement to her former or
substantially equivalent position without prejudice to her seniority or other
rights and privileges ;
(b) Make whole Freda Cheek and Bettye Seigel for any loss they may have
suffered by reason of the respondents' discrimination against them in the manner
set forth in the Section entitiled "The remedy" above ;
(c) Post at their plant at Vinita, Oklahoma, copies of the notice attached
hereto marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director of the Sixteenth Region, shall, after being duly signed by the
respondents' representative, be posted by the respondents immediately upon
10 See footnote 9, supra.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receipt thereof, and maintained by them for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to employees are
customarily 'posted. Reasonable steps shall be taken by the respondents to
insure that said notices are not altered, defaced, or covered by any other
muaterial;
(d) File with the Regional Director for the Sixteenth Region on or before
ten (10) days from the date of the receipt of this Intermediate Report, a report
in writing setting forth in detail the manner and form in which the respondents
have complied with the foregoing recommendations
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondents notify said Regional Direc-
tor in writing that they will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondents to take
the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 27, 1945, as
amended, any party or counsel for the Board may within fifteen (15) days
from the date of the entry of the order transferring the case to the Board,
pursuant to Section 32 of Article II of said Rules and Regulations, file with the
Board, Rochambeau Building, Washington 25, D. C, an original and four
copies of a statement in writing setting forth such exceptions to the Interme-
diate Report or to any other part of the record or proceeding (including rulings
upon all motions or objections) as he relies upon, together with the original
and four copies of a brief in support thereof. Immediately upon the filing of
such statement of exceptions and/or brief, the party or counsel for the Board
filing the same shall serve a copy thereof upon each of the other parties and shall
file a copy with the Regional Director. As further provided in said Section
33, should any party desire permission to argue orally before the Board, request
therefor must be made in writing within ten (10) days from the date of the
order transferring the case to the Board.
Louis PLOST,
Trial Examiner.
Dated February 25, 1946.
APPENDIX A
NOTICE TO ALL EMPIAYEEs
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and ip order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist Amalgamated Clothing Workers of America,
CIO, or any other labor organization, to bargain collectively through rep-
resentatives on their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection.
We will offer to Freda Cheek immediate and full reinstatement to her
former or substantially equivalent position without prejudice to any seniority
or other rights and privileges previously enjoyed by her, and make her whole
for any loss of pay she may have suffered as a result of our discrimination
against her.
We will make whole Bettye Seigel for any loss of pay she may have suffered
by reason of our discrimination against her.
VINITA GARMENT MANUFACTURING COMPANY 929
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
the hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
SAM BRAUER, ETTA BRAUER, MAX GRnSSMAN AND
ELSIE GRESSMAN , CO-PARTNERS DOING BUSINESS
AS VINITA GARMENT MANUFACTURING COMPANY
Dated-------------- By --------------------------------------------
(Representative ) ( Title)
NOTE.-Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
692148-46-vol. 67-60