Kanmak Mills, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1951

93 N.L.R.B. 490 (N.L.R.B. 1951)

490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By discriminating in regard to the hire and tenure of employment of
James Benton Roebuck, thereby discouraging membership in the above Union,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section S (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume ]
KANMAK M ILLS, INC., KULI'MONT MANUFACTURING COMPANY, INC. and
TEXTILE WORKEI:S UNION OF AMERICA, CIO . Case No. /.-CA-134.
February 28, 1951
Decision and Order
On September 28, 1950, Trial Examiner Henry J. Kent 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 there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondents had not engaged in certain other unfair
labor practices and recommended that the complaint be dismissed as
to such allegations. Thereafter, the Respondents filed exceptions
to the Intermediate Report and a supporting brief ; the General
Counsel filed a brief.
The Board 1 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 2 The Board has considered the Inter-
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act,
the Board has delegated its powers in connection with this case to a three -member panel
[ Members Houston , Murdock, and Styles].
2 At the close of the hearing , the General Counsel moved to amend the complaint to
allege that the Respondents violated Section 8 (a) (4) of the Act with respect to Lorraine
Petrovich . The Trial Examiner , after reserving ruling thereon, granted the motion in
his Intermediate Repoit, and ruled, in substance , that as the matter had been adequately
litigated , the recoid should not be reopened The Respondents except to the failure to
reopen the record We find no merit in this exception . While we believe that it would
have been better practice for the Trial Examiner to rule on the motion at the hearing,
we neither perceive , nor have the Respondents demonstrated, that they have been prej-
udiced in any manner by the Trial Examiner 's action. It may be noted in this connection,
that our finding with respect to the violation of Section 8 (a) (4), like the Trial
Examiner ' s, is based upon the testimony of the Respondents ' own witness , and the
Respondents have not adverted to any additional evidence which they desire to submit in
a reopened hearing Accordingly , the Trial Examiner's rulings are hereby upheld. Cf.
Majestic Metal Specialties, Inc, 92 NLRB 1854
93 NLRB No. 66.
KA\NMAK MILLS, INC. 491
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the additions and modifica-
tions noted below.
1. We find, as did the Trial Examiner, that the Respondents inter-
fered with, restrained, and coerced their employees, in violation of
Section 8 (a) (1) of the Act. In so finding, we rely, as did the Trial
Examiner, upon the following conduct attributable to the Respond-
ents: (1) Production Manager Steinacher's interrogation of em-
ployees Orlando, Borisheski, and Kemper concerning their union
activities and membership, and his warning that the plant would be
closed if the employees were organized; (2) Steinacher's request to
Borisheski that the latter tried to induce other employees to vote
against the Union if an election were held; (3). Superintendent
Sheriff's interrogation of employee Balchunas as to his union mem-
bership, and his warning that the plant would be closed if organized ;
and (4) Foreman Lazarski's 3 interrogation of employee Spieles re-
garding his union membership, and in effect warning that the plant
would shut down if organized by the Union.'
2. We also agree with the Trial Examiner that the Respondents'
refusal to reemploy Florence Orlando on May 10, 1949, was violative
of Section 8 (a) (3) and (1) of the Act.
The Respondents except to this finding mainly on the grounds that :
(1) They were unaware of Orlando's union activity, and (2) Orlando
was not reemployed because she was not a "good worker." We cannot
agree.
As to the first contention, the record shows, as fully set forth in
the Intermediate Report, that Orlando actively participated in the
Union's organizational campaign, which began on August 23, 1948.
When interrogated by Production Manager Steinacher on September
10, 1948, Orlando did not deny that she was in favor of the Union
and that she was assisting the Union in its campaign. Moreover,
Steinacher admitted to employee Borisheski, in September 1948, that
he believed Orlando to ,be one of the most active union proponents.
And, the Respondents were advised that the Union had filed charges
on October 12, 1948, alleging that Orlando had been discharged on
October 5, 1948, because of her union activities. It is thus clear, and
'The name of this supervisor was inadvertently stated by the Trial Examiner to be
Lazorski.
41n excepting to the Trial Examiner's various findings of unfair labor practices, the
Respondents contend, inter alia, that such determinations are based on erroneous credibility
findings However, as the Board has previously held, a Trial Examiner's resolution as to
credibility will be overruled only when the clear preponderance of all relevant evidence
convinces us that his resolution was incorrect. No such conclusion is warranted here.
See McKesson & Robbins, Incorporated, 92 NLRB 432, Ozark Hardwood Company, 91
NLRB 1443. Cf. Salant & Salant, Incorporated, 92 NLRB 343
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we find, that the Respondents were fully apprised of Orlando's active
union affiliation when they commenced rehiring personnel in May
1949.
With respect to the contention that Orlando was not recalled be-
cause she was not a "good worker," Orlando had worked for the
Respondents approximately 3 years before her layoff in October 1948,
spending most of her time on one of the more difficult operations in
the Respondents' sewing department. She was among the last of the
group of more than 40 sewing machine operators who were laid off
for economic reasons during the period from February 1 to October
5, 1948; and the Respondents pursued a general policy, in such layoffs,
of retaining the most efficient workers the longest. Although at the
time Orlando reapplied for a job on October 18, 1948, she was in-
formed by Respondents' production manager that she had been laid
off because of her low production, she was specifically informed that
she would be recalled when conditions improved. When Orlando
again applied for work in May 1949, she was refused reemployment
for the stated reason that the Respondents were not hiring. Yet, at
that time, the Respondents had in fact begun to offer reemployment
to operators laid off before Orlando, and continued thereafter to recall
similar employees, who, under the Respondents' layoff policy, had been
deemed inferior to Orlando.
Under all the circumstances,5 including the Respondents' knowledge
of Orlando's union activities and their demonstrated union animus,
we are of the opinion that the Respondents' refusal to recall Orlando
was actuated not by her alleged lack of ability as a worker, but by her
union activity, and we so find.
3. Like the Trial Examiner, we find that the Respondents unlaw-
fully discriminated against Lorraine Petrovich because charges under
the Act had been filed on her behalf in violation of Section 8 (a) (4).
We also find that the Respondents' conduct was independently viola-
tive of Section 8 (a) (1).
As detailed in the Intermediate Report, charges on behalf of Petro-
vich were filed on October 20, 1948, alleging that she had been dis-
criminatorily discharged on September 16, 1948.6 In July 1949, Pet-
rovich applied for reinstatement and was interviewed mainly by
General Manager Brennan. According to Brennan's own testimony,
which the Trial Examiner credited, he informed Petrovich that ". .
your naive is in charges against us, and that doesn't indicate to me a
friendly attitude toward this company." Brennan also testified that,
later in the interview, the following transpired : '
6 We find it unnecessary to rely, as did the Trial Examiner , on Orlando ' s average "delin-
quency" per hour , computed by the General Counsel.
6 The charge which first mentioned Petrovich gave the date of her discharge as October
` 16, 1948. This inadvertence was later corrected to show the September date given above.
KANMAK MILLS, INC. 493
I said, "I assume if you come back that you will be willing to
retract the charges now pending . . . she said, "Yes," . . . I
said, "Would you write a letter to that effect, ... she said, "Yes"
She' would. .. .
I asked her if she would ... if conditions improved and we
started up our department and gave her an opportunity to come
back in view of the charges against us would she retract them, and
she said she would.
The Respondents contend initially that the offer of future employ-
ment to Petrovich was unconditional. This contention is without
merit. , It is clear from Brennan's testimony, as quoted at length above,
that Petrovich's employment would be dependent upon her with-
drawal of charges. Indeed, Brennan subsequently admitted, in the
course of his testimony, that "As a representative of that company, I
didn't think that I would be within my rights to bring this girl back
with charges pending against us."
We likewise reject the Respondents' contention that their conduct
was not unlawful because no job has become available for Petrovich.
Section 8 (a) (4) proscribes discrimination in any manner against an
employee,' because he has filed charges or given testimony under the
Act. As noted above, the Respondents, through Brennan, advised
Petrovich that the withdrawal of charges was one of the conditions of
her reemployment. She was thus placed in a class apart from the
other applicants for reemployment by the Respondents, subject to
more onerous conditions. Such action constituted discrimination
against Petrovich because charges had been filed on her behalf and was
therefore violative of Section 8 (a) (4),$ and, in any event, of Section
8 (a) (1) of the Act .9
° As an applicant for employment, Petrovich was manifestly an "employee" within the
contemplation of Section 8 (a) (4) Briggs Manufacturing Company, 75 NLRB 569. Cf.
Phelps Dodge Corporation v N L R B, 313 U S 177
'Cf. Consolidated Frame Company, 91 NLRB 1295 ; Briggs Manufacturing Company,
supra.
The instant case is distinguishable on its facts from F W. Poe Manufacturing Company v
N. L. R B., 119 F. 2d 45 (C. A 4), cited by the Respondents in their brief. In that case,
where the court found no violation-of Section 8 (4) of the original Act, the employee in
question had never been9informed that the employer did not intend to rehire him because of
his filing charges . Moreover , the employer there pursued a policy of hiring only individuals
who applied for jobs when a vacancy actually existed, and the employee did not apply al
such a time . Here, not only was Petrovich clearly informed of the Respondents' require-
ment that she withdraw her charges , but also , when vacancies existed , the Respondents
generally recalled err iloyees previously laid off, and Petrovich was discriminatorily set
apart from the other lmployees in that category by the additional requirement that she
withdraw charges
9 Whether the Respondents ' conduct be viewed as a violation of Section 8 (a) (4) and
8 (a) (1), or of Section 8 (a) (1) alone, our order that the Respondents offer Petrovich
employment when they would normally recall her , absent any requirement as to the with-
drawal of the charges, would be the same
In the absence of exceptions to the Trial Examiner ' s finding that the refusal to reemploy
Petrovich was not violative of Section 8 (a) (3), we find it unnecessary to pass upon that
finding.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the basis of the entire record in the case, and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board-hereby orders that the Respondents,
Kanmak Mills, Inc., and Kulpmont Manufacturing Company, Inc.,
Kulpmont, Pennsylvania, and their officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Textile Workers Union of Amer-
ica, CIO, or in any other labor organization of their employees, by
refusing to reinstate employees, or by discriminating in any other
manner in regard to their hire or tenure of employment, or any term
or condition of employment.
(b) Discriminating in any manner against any employee because
he has filed charges or given testimony under the Act, or in any other
manner interfering with the rights of employees to file and prosecute
a charge and to give testimony under the Act.
(c) Interrogating their employees concerning their union affilia-
tion, activities, or sympathies, soliciting employees' assistance in the
event an election is held, or threatening that they will close their plant
if their employees join Textile Workers Union of America, CIO, or
any other labor organization, or 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 Textile
Workers Union of America, CIO, 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 right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:-
(a) Offer to Florence Orlando immediate and full reinstatement
to her former or substantially equivalent position without prejudice
to her seniority or other rights and privileges; and make her whole, in
the manner set forth in the section of the Intermediate Report entitled
"The Remedy," for any loss of pay she may have suffered by reason of
the Respondents' discrimination against her.
(b) Offer Lorraine Petrovich reinstatement to her former or a sub-
stantially equivalent position, whenever she would otherwise be en-
KANMAX MILLS, INC. 495
titled to recall, absent any requirement that she withdraw any charges
under the Act filed on her behalf.
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due and the right
of reinstatement under this Order.
(d) Post at their plant in Kulpmont, Pennsylvania, copies of the
notice attached hereto, marked Appendix A.10 Copies of said notice,
to be furnished by the Regional Director for the Fourth Region, shall,
after being duly signed by the Respondents' representatives, be posted
by them immediately upon receipt thereof, and maintained by them
for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Fourth Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the refusal to reinstate Lorraine Petrovich in July 1949, was
violative of Section 8 (a) (3) of the Act, be, and it hereby is, dismissed.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Lebor Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in TEXTILE WORKERS
UNION OF AMERICA, CIO, or any other labor organization of
our employees, by refusing to reinstate any of our employees, or
by discriminating in any other manner with regard to their hire
and tenure of employment, or any term or condition of
employment.
WE WILL NOT discriminate in any manner against any employee
because he has filed charges or given testimony under the Na-
tional Labor Relations Act, or in any other manner interfere with
the rights of employees to file and prosecute charges and to give
testimony under said Act.
'° In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order," the words, "A Decree
of the United States Court of Appeals Enforcing."
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT interrogate employees concerning their union af-
filiation, activities, or sympathies, solicit their assistance in the
event an election is held, or threaten that we will close our plant
if employees join TEXTILE WORKERS UNION OF AMERICA, CIO,
- or any other labor organization, or in any other manner interfere
with, restrain, or coerce our employees in the exercise of the right
to self-organization, to form labor organizations, to join or assist
TEXTILE WORKERS UNION OF AMERICA, CIO, 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 right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL OFFER to Florence Orlando immediate and full rein-
statement to her former or substantially equivalent position with-
out prejudice to any seniority or other rights and privileges
previously enjoyed, and make her whole for any loss of pay suf-
fered as a result of the discrimination against her.
WE WILL OFFER to Lorraine Petrovich reinstatement to her
former or substantially equivalent position, whenever she would
otherwise be entitled to recall, absent any requirement that as
a condition of reemployment she withdraw any charges filed
on her behalf under the National Labor Relations Act.
All our employees are free to become, remain, or refrain from
becoming or remaining members of the above-named union or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of
the Act. 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.
KANMAK MILLS, INC.,
Employer.
Dated-------------------- By---------------------------
(Representative ) ( Title)
KULPMONT MANUFACTURING COMPANY, INC.,
Employer.
By-----------------------------------------------
,(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 clays from the date hereof,
and must not be altered, defaced, or covered by any other material.
KANMAK MILLS, INC.
Intermediate Report
497
Harold Kowal, Esq., and Arthur Christopher, Esq, for the General Counsel.
Geoffrey J. Cunnsff, Esq., of Philadelphia, Pa., for the Respondents.
STATEMENT OF THE CASE
Upon charges and amended charges duly filed and served by Textile Workers
Union of America, CIO, herein called the Union, the General Counsel of the
National Labor Relations Board, herein called, respectively,' the General Coun-
sel' and the Board, by the Regional Director for the Fourth Region (Philadel-
phia, Pennsylvania), issued a joint complaint dated April 28, _ 1950, against
Kanmak Mills, Inc., and Kulpmont Manufacturing Company, Inc., of Kulpmont,
Pennsylvania, herein called the Respondents, alleging that the Respondents
had engaged in and were engaging in unfair labor practices within the meaning
of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Labor Manage-
ment Relations Act, 61 Stat. 136, herein called the Act. Copies of the charges
and the complaint together with a notice of hearing were duly served upon
the Respondents and the Union.
With respect to the unfair labor practices, the complaint, as amended at the
hearing, alleges that (a) Respondent Kulpmont laid off Florence Orlando on or
about October 5, 1948, and thereafter refused to reemploy her because of her
activities on behalf of the union; 2 (b) that the Respondent Kamnak laid off
Lorraine Petrovich on September 16, 1948, and thereafter refused to reemploy
Petrovich because of her union and concerted activities or, in the alternative,
because she filed charges against the Respondents under the Act; and (c) that
each of the Respondents interrogated employees regarding union activities,
threatened to close the plant if the Union organized it, threatened employees
with discharge if they joined or assisted the Union, prohibited employees from
talking about union affairs at any time while they were on the plant property,
and ui ged, persuaded, and warned their employees with threats of reprisal, or
promises of reward, to refrain from assisting or joining the Union.
The Respondents duly tiled a joint answer admitting the allegations of the
complaint regarding their business operations, but denying the commission of
the unfair labor practices alleged.
The Regional Director, before the hearing opened, furnished Respondents with
a bill of particulars concerning the allegations of interference, restraint, and
coercion in response to a motion filed with him by Respondents for further
particulars
Pursuant to notice, a hearing was held from May 15 to 18, 1950, at Kulpmont,
Pennsylvania, before the undersigned Trial Examiner, duly designated to con-
.duct the hearing by the Chief Trial Examiner.
The General Counsel and the Respondents were represented by counsel.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded to all parties.
At the close of the General Counsel's case-in-chief, the undersigned granted
a motion offered by the General Counsel to dismiss the allegations in the com-
plaint pertaining to the alleged discriminatory refusal to reemploy Helene Sylko.
At the end of the hearing, the General Counsel moved to amend the complaint
to include an additional allegation that by refusing to reemploy Lorraine Petro-
'This term includes counsel appearing on behalf of the General Counsel.
2 As further appears below, a motion by the General Counsel to dismiss similar allega-
tions as to employee Helene Sylko was granted at the hearing.
943732-51-33
498 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vich unless she recanted the charge filed by the Union that she had been dis-
criminatorily discharged, the Respondent Kanmak had also violated Section
8 (a) (4) of the Act. The undersigned reserved his ruling pending consideration
of the record to determine if the matter had been litigated. The amendment
is hereby granted for reasons stated below.
The parties were afforded an opportunity to present oral argument before
the undersigned but waived it. They were then granted 15 days to file briefs.
Briefs from both parties have been duly received.
On June 20, 1950, or about 1 month after the hearing closed, the General
Counsel moved to further amend the complaint to include an 8 (a) (4) allegation
concerning the case of Florence Orlando. In the opinion of the undersigned
this issue was not litigated at the hearing. In addition, the motion was not
timely presented. Consequently it is hereby denied. At the same time, the
General Counsel also filed a motion with the undersigned to make certain correc-
tions in the reporter's transcript. There being no objections offered to the
proposed corrections, it is. hereby ordered that the corrections be made as
requested. The undersigned has marked the motion to amend the complaint
as Trial Examiner's Exhibit 1 and the motion to correct the record as Trial
Examiner's Exhibit 2 and he has inserted the said exhibits in the exhibit file of
the case.
Upon the entire record, and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Kanmak Mills, Inc, and Kulpmont Manufacturing Company, Inc., are each
corporations organized under the laws of the Commonwealth of Pennsylvania.
Each have the same principal officers, pursue a commonly controlled labor rela-
tions policy, and constitute an integrated enterprise commonly controlled, man-
aged, and operated, for the most part, in the same building at Kulpmont,
Pennsylvania.
Kanmak Mills, Inc., is engaged in the weaving, dyeing, and finishing of various
types of textile materials about 85 percent of which is sold and delivered to
Kulpmont Manufacturing Company, Inc., to be further processed into ladies
brassieres, girdles, and bathing suits and the balance is sold to vendors located
in States other than the Commonwealth of Pennsylvania. Kanmak annually
purchases raw materials valued in excess of $50,000 consisting principally of
cotton, rayon, and nylon yarns and rubber of which about 90 percent is purchased
and shipped from points outside of Pennsylvania.
Kulpmont Manufacturing Company, Inc., as previously stated, is engaged in
the manufacture of ladies brassieres, girdles, and bathing suits. It annually,
purchases raw materials consisting of various kinds of blended cloth valued at
about $300,000 of which about 10 percent is purchased and shipped to its plant
from points outside of Pennsylvania and the major portion of the balance of the
raw materials it uses is furnished by Respondent Kanmak. Its manufactured
products have a value of about $1,000,000 annually, of which 90 percent is sold
and shipped to purchasers in States other than Pennsylvania.
The Respondents concede that they are engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, CIO, is a labor organization within the
meaning of the Act, and admits to membership employees of the Respondents.
KANMAK MILLS, INC.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
1. Introductory factual and labor relations background
4991
As found above, for several years last past the Respondents, Kanmak and
Kulpmont, although operating as separate corporate entities, are each commonly
owned, and managed by the same officers and, in effect, constituted divisions of
a single integrated business operation. Kanmak is engaged in weaving and
dyeing textile materials which are later processed into finished articles of ladles.
wear by Kulpmont.
Early in 1948, for reasons not fully disclosed by the record, Kulpmont discon-
tinued the manufacture of a number of styles of products formerly turned out-
-As a consequence, a reduction in force, which began in February 1948, resulted in-,
the layoff of approximately 50, percent of its rank-and-file employees. In its
sewing department, with which the events below are particularly concerned, 50
of approximately 100 operators were laid off on various dates from early in
February to October 5, 1648.
The last 3 of the 50 employees in the sewing department affected by the 1945
layoffs were Florence Orlando, Carmella Rossi, and Lois Kemper, all of whom
were laid off on October 5, 1948' In May 1949, there was a substantial pick up
in business, Rossi was rehired on May 10, 1949, and 24 other employees of the
50 laid off in 1948 before Orlando, were either rehired or offered reemployment
in May 1949 or thereafter. On August 23, 1948, the Union started an organiza-
tional campaign in the plant, and Orlando was outstanding among the sewing:
machine operators for her union activities. Qrlando has never been recalled for
employment.
As a result of the curtailment in business at Kulpmont, there was a similar
reduction in force at Kanmak, especially in the mending department, which
repaired defective textile products furnished to Kulpmont by Kanmak. The
mending department payroll dropped from over 100 in August 1948 to 22 by June
25, 1949. The entire department was closed for vacation during July 1949 and
again shut down during the month of October 1949.
Lorraine Petrovich, a learner mender, was one of the earliest employees laid
off. The complaint as amended at the hearing alleges that she was laid off for
engaging in union activities, or, in the alternative, because she filed charges
against Kanmak.
Insofar as the record shows, no efforts to organize the employees of either
Respondent had been made before August 23, 1948, when the charging Union
began its organizational campaign Following the layoffs of Orlando and Petro-
vich, the Union filed charges averring that these two employees (together with
several others not named in the complaint) had been discriminatorily discharged
for engaging in union activities. Thereafter, sometime in July 1949, Petrovich
called at the plant seeking reemployment. On this occasion, she was told in
substance that she would only be considered for reemployment if she recanted
the charges filed on her behalf and if and when additional menders were required.
No contention is made by the General Counsel that the original layoffs were
discriminatory.
$ Respondents' Exhibit No. 2, received in evidence without objection, lists the names
and dates of layoff of the employees affected It shows that 35 of this group had bees
laid off on various dates during the period ending July 26, 1948.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Interference , restraint , and coercion
According to the credited and undenied testimony of Orlando, Lois Kemper,
Irene Sempko (all sewing machine operators), and Leonard Borisheski, a floor
boy in the sewing room, Orlando was the most active protagonist for the Union in
the plant. She not only solicited many fellow employees to sign cards for the
Union, but handed blank cards to Kemper, Sempko, and Borisheski with a re-
quest that they solicit fellow employees to sign them. Each of these three
employees did so and returned the signed cards to Orlando, who thereafter
delivered them to the Union.
Orlando further testified that J. Evans Steinacher, Kulpmont's production
manager, came to her while she was working in the plant on September 10, 1948,
and, in substance, asked her on this occasion if she was working for the Union
and why she desired to have a union in the plant. Orlando, according to her
further testimony, then told Steinacher that her father and brothers were all
members of the coal miners union, whereupon Steinacher asked her if she was
paid by the Union for signing up members, and that when she denied receiving
any money from the Union, he told her she was a damn fool, and then asserted
the plant would shut clown if the Union organized it.
Borisheski testified in substance that one clay in September 1948, Steinacher
called him away from his work, that on this occasion Steinacher asked Bori-
sheski if the latter had joined the Union, that when Borisheski admitted having
done so, Steinacher stated that the plant would close down if the Union or-
ganized it, and that Steinacher then remarked that he, Steinacher, believed
Orlando, Kemper, and Sempko were the most active promoters of the Union, and
then requested Borisheski to try and induce the employees to vote against the
Union if an election was later helfl
Lois Kemper testified , in substance , that one day in September 1948, Stein-
acher asked her why she wanted a union in the plant, that after she replied
there were too many bosses in the sewing room,' Steinacher then told her the
employees should not talk about the Union inside the plant, and that he then
asserted that the Company could close down the sewing floor and use the space
for storage.
Steinacher categorically denied ever holding a conversation regarding the
Union with Kemper and Borisheski and denied ever having made the above
statements attributed to him by Orlando. He admitted holding a conversation
in the plant with Orlando, but asserts that she initiated it, by asking if the
plant would shut down if the Union organized it and asserts that he merely
replied "anything could happen."' and asserts that he then bold Orlando that
he, Steinacher, was not opposed to unions, and that the employees were free
to join or not join as they saw fit.
Orlando, Borisheski , and Kemper impressed the undersigned by their demeanor
as reliable and trustworthy witnesses. The record is convincing that rumors
were rampant in the plant that it would close if the Union succeeded in
'Kemper further credibly testified without denial that Jean Marosic ( stipulated by
counsel to be a supervisor in the sewing room ) had requested Kemper to stop asking the
girls in the department for their names because Marosic had been reprimanded for per-
mitting it . Since it does not appear afflimatively that Kemper was engaging in union
activities outside of working time , no finding will be made that Marosic was engaging in
illegal conduct
5 Avellino , a sewing machine mechanic , testified without denial that on hearing a rumor
that the plant would close if it were organized , he, Avellum, asked Steinacher if there was
any truth in the rumor , and that the latter replied "anything might happen-at any time"
whereupon Avellino told other employees that the plant would close "if the Union
organized it.".
KANMAK MILLS, INC. 501
organizing it, for Superintendent Sheriff of the dyeing department at Kanmak
admitted, as further discussed below, that he had heard such rumors, but rather
unconvincingly asserted that he did not bother to check with higher officials to
determine whether there was any basis in fact for them. When Orlando and
another employee, named Avellino asked Steinacher, Kulpmont's production
manager, whether there was any truth in the rumor, Steinacher's ambiguous
and cryptic reply that "anything could happen" certainly, under the existing
circumstances, may be fairly regarded as a veiled threat that the plant would
close if it were organized. When considered in conjunction with the treatment
later accorded to Orlando, as set forth below regarding Kulpmont's refusal to
recall her for work when rehiring began in May 1949, and the refusal by Kanmak
to consider Petrovich for reemployment unless she recanted the charges filed
against the Company, I am convinced that Respondents by means of threats
and other conduct coerch;ely discouraged union activities. Accordingly, I con-
clude that the above versions of Orlando, Borisheski, and Kemper regarding
their conversations with Steinacher in September 1948 are substantially true
and find that Steinacher interrogated the three employees concerning their union
affiliations or activities, and that he also warned them that the plant would be
closed if the Union succeeded in organizing it.
William Spieles, a rank-and-file employee in the Kanmak dye house and a
witness called by the General Counsel, testified that Larry Lazorski, a dye-house
foreman, asked Spieles if the latter had joined the Union shortly after the
organizational drive opened stating, at the time, that he, Lazorski, wanted
to ascertain if Spieles would tell the truth about it, whereupon he, Spieles, ad-
mitted he had joined the Union. Shortly after the above conversation, Lazorski,
according to Spieles' further testimony, came to Spieles in the plant and re-
marked, "Bill, I'm worried-if the Union gets in, the mill is going to close
down." Thereafter, in December 1948, Spieles and William Balchunas, another
dye-house employee, were engaged in a conversation regarding an accident
insurance program initiated by Respondents. Spieles and Balchunas each
testified that, on this occasion, Lazorski walked up to them and stated,
"See what Mr Kahn is doing for us, he is giving us free insurance benefits," 6
whereupon Spieies facetiously remarked, "if this keeps up, we may get turkey
for Christmas, too," and that Lazorski then remarked, "I pity you two guys
if the Union gets in" and then walked away.
Lazorski, when called as a witness by the Respondents, denied that he ever
interrogated Spieles regarding the latter's union affiliation and further denied
that he ever told any employee that he, Lazorski, was worried that the plant
would shut down if the organizational campaign, was successful. Lazorski ad-
mitted participating in a conversation with Spieles and Balchunas regarding
accident insurance. On testifying concerning the conversation, Lazorski said he
observed Spieles and Balchunas sitting on a hand truck when they should have
been working, and that he overheard them criticizing the Respondents' insurance
plan whereupon he, Lazorski, walked over to them and entered into the
discussion. He testified :
[Balchunas] made the statement that now the Union is trying to get in
here they are going to soft-soap us with the surgical policy. Well, there
was only one answer for me [Lazorski] to give to that: I told the fellows,
I said, "Regardless of what the condition is, you fellows are getting it for
nothing."
6 Kahn was not clearly identified in the record Spieles testified without denial that
Kahn was the owner of the plant, hence it is presumed that he is the president of each
of the Respondents.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Lazorski's further uncontradicted testimony, Balchunas then
jumped up from his seat on the truck and accused Lazorski of antiunion prejudice
and bias in favor of employers, whereupon after denying the accusations,
Lazorski walked away.
Balchunas further testified that a short time after the organizational campaign
started, William Sheriff, the dye-house superintendent, asked Balchunas if the
latter had joined the Union, that after Balchunas replied "Yes," Sheriff stated
that the plant would close if the Union organized it. Sheriff, when testifying
as a witness for the Respondents, denied ever interrogating Balchunas concern-
ing the latter's union affiliation, but he admitted that he believed Balchunas had
joined the Union because he, Sheriff, had observed Balchunas talking with
union organizers outside the plant entrance on several occasions. Sheriff also
denied telling Balchunas that the plant would close if the employees organized.
Sheriff admitted that during the height of the organizational campaign rumors
were rampant that the plant would close, if the Union's campaign was success-
ful, but he asserts that he paid no attention to the rumors, and made no attempt
to ascertain from higher officials whether there was any basis of truth behind
them.
Basing my conclusions upon my observation and the demeanor of the four
above-named dye-house employees, I conclude that the testimony of Spieles and
Balchunas is the more reliable and trustworthy. I find that Lazorski and Sheriff
interrogated employees working under them regarding their union affiliation
and further find that Lazorski and Sheriff participated in spreading rumors that
the plant would shut down if it were organized. The statement attributed to
Lazorski by Spieles that Lazorski was worried about the plant shutdown was no
doubt due to apprehension concerning his own job but, under the circumstances,
be should have first checked with plant officials to ascertain whether the rumors
,were based on fact, before informing rank-and-file employees about his pertuba-
tion, thus discouraging employees from engaging in union activities. The testi-
inony of Sheriff, the dye-house superintendent, that such rumors were rampant
throughout the plant, but that he paid no attention to them and made no inquiry
of higher officials to ascertain if there was any basis in fact for them is deemed
by the undersigned to be incredible, for if such rumors were true, Sheriff's
own job would ultimately be affected and it is "inconceivable" that Sheriff would
have regarded such rumors as lightly as he asserts he did.
3. The refusals to reemploy Florence Orlando and Lorraine Petrovich
Florence Orlando had been regularly employed by Kulpmont, as a sewing-
viachine operator since September 1945, until she was laid off on October 5, 1948.
As noted above, 50 of the approximately 100 sewing-machine operators working
on February 1, 1948, were laid off between February 1 and O'ctober 5, 1948, for
economic reasons.' Orlando with employees Lois Kemper and Carmella Rossi
vi ere all laid off on October 5, 1948. They were the last 3 of the 50 employees laid
off in 1948, substantially all of whom were selected for layoff assertedly because
of their delinquency records.'
'Respondents' Exhibit No. 2, received in evidence without objection, lists the names'
and dates of layoff of these 50 persons.
8 Delinquency in the sense the term is used by Respondents is measured by the difference
between the guaranteed minimum hourly rate paid and the actual piece rate earnings of
an employee. It carries no implication that an employee's conduct is otherwise objection-
able and as Respondents' counsel states in his brief, the Respondents " considered
[delinquency] a major test of an operators efficiency."
KANMAK MILLS, INC. 503
As previously found above, Orlando was the most active protagonist of the
Union among the sewing-machine operators and, in effect,,served as the chairman
of an unofficial organizational committee.
A few days after her layoff on October 5, 1948, the Union sent a telegram to
Kulpmont asserting in substance, that Orlando and employee Lois Kemper had
been discriminatorily discharged for engaging in union activities and requesting
their reinstatement. Thereafter, on October 18, 1948, Orlando and Kemper called
at the plant. They met there with General Manager Brennan and Steinacher,
previously identified as Kulpmont's production manager, in Brennan's office.
According to the credited and undenied testimony of Orlando and Kemper,
which is in substantial agreement, Brennan read to them the telegram from the
Union; he then told them they had not been discharged for engaging in union
activities, but had merely been laid off for low production, and then asserted
the Company was not concerned whether or not the employees desired a union
to represent them, and the two employees further testified without denial that
Steinacher, on this occasion, also asserted that they had merely been laid off
and would be recalled for work, when and if business picked up and additional
operators were required!
Thereafter, in May 1949, Kulpmont began to rehire sewing-machine operators.
On May 10, 1949, Carmella Rossi, laid off on the same day with Orlando, was
reemployed. Also during May 1949 and subsequent thereto Kulpmont rehired
or offered reemployment to 24 of the other employees laid off before Orlando
and Rossi in 1948.10 But, despite Steinacher's statement made on October 18,
1948, that Orlando would be recalled for work when additional operators were
required, Orlando has never been recalled.
In addition, according to the credited and undenied testimony of Allan
Zurlnick, a field examiner for the Board, Kulpmont rehired some 13 other former
employees who had either voluntarily quit, been laid off, or been granted leave
of absences in 1947 (General Counsel Exhibit No. 4) most of whom did not work
in the plant during 1948.
Orlando further testified : After learning that Kulpmont was rehiring sewing-
machine operators in May 1949, she called at the plant on May 18, 1949, during
her lunch hour, and in a conversation with Michael Fedock, the clerk in charge
of personnel records, told Fedock that she would like to return to work there,
and that Fedock told her the Company was not rehiring, whereupon she left;
Fedock denied that Orlando had ever spoken to him regarding employment at
any time after October 18, 1948, when he arranged for Steinacher to talk with
her. Fedock further denied that there had been any material pickup in em-
ployment during May 1949. Basing my opinion upon my observation and the
demeanor of the witness, together with realistic consideration of all the evidence
in the record, I conclude that Orlando's testimony was the more reliable and
find that she visited the plant to apply for reemployment on or about May 18, 1949.
In view of Fedock's position at the plant, it is inconceivable that he would have
been unaware of the sudden and material pickup in employment at the plant
during May 1949 after a long period of inactivity. Furthermore, W. B. McCaig,
an international representative of the Union, partially corroborated Orlando's
above testimony, for McCaig credibly testified that he drove Orlando to the plant
0 It is noted , Kemper became pregnant in January 1949 and gave birth to a child in
September 1949 She is not named as a complainant in the case.
10 Respondents ' Exhibit No . 3, received in evidence , lists the names and dates when
these persons were either rehired or offered reemployment. It shows that 5 persons laid
off before Orlando were rehired and that Rossi laid off on the same day as Orlando was
rehired on May 10, 1949. The 18 others who were laid off before (Irlando in 1948 and
offered reemployment declined for various reasons to return to work.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in his automobile about noon on one day in the middle of May 1949 and waited
for her outside the plant until she returned after spending several minutes inside
the plant.
Stemacher, who is in charge of all hiring at Kulpmont, asserts that Orlando
was not recalled because of her high delinquency record and because she .was
not a versatile operator.
The record shows that for the most part of her nearly 3 years employment
she was kept on operation 1209, which job, according to Steinacher, is about
the "toughest" operation in the sewing room, and that she was still working on
this operation when she was laid off on October 5, 1948.
Ella Peters, head supervisor of the sewing department, and next in super-
visory status under Steinacher, testified : On July 23, Steinacher laid off five
operators, namely Laura Malkiewicz, Rose Kotarski, Julia Amago, Rose Rossi,
and Veronica Boleski because of high delinquencies," that on the same day
Steinacher reprimanded operators Helen Austic, Nolter, Carmella Rossi, Sempko,
Kemper, Coronito, and Orlando, all of whom were currently working on opera-
tion 1209, because of their asserted high delinquencies, that he told them, on
this occasion, that sooner or later they would be laid off unless they increased
their production" and that customarily, as would be expected, the Company
lays off the less efficient workers first, when reductions in force are required.
Peters, on cross-examination, also admitted that Orlando was a better op-
erator than most of the 25 employees included in the 1948 layoffs, who were
rehired or offered reemployment in May 1949, or thereafter, when additional
operators were called back. Peters' above testimony to some extent was cor-
roborated by the credible and uncontradicted testimony of Allan Zurlnick, a field
examiner for the Board, who testified without contradiction that Kulpmont's
employment records show Orlando had an average hourly delinquency of 20.4
cents, that Carmella Rossi had one of 20.7 cents, Austic one of 22 cents, and
Nolter one of 24 cents during 1948, when all of them during most of the period
before their layoffs were working on operation 1209." The record further shows
that Rossi was rehired on May 10, 1949, that Nolter was rehired May 17, 1949,
and that Austic was offered but refused to accept reemployment on May 9, 1949,
although all three had poorer delinquency records than Orlando who has never
been offered reemployment, and, also, despite the fact, as found above, that on
October 18, 1949, Steinacher told Orlando that she would be recalled for work
if and when additional operators were needed.
Lorraine Petrovich was hired in January 1948 as a learner mender by Kanmak.
As such, she repaired defective textile products later supplied to Kulpmont for
processing into finished articles of ladies wear. As noted above, this department
was reduced from a force of over 100 menders in September 1948 to 22 by June
25, 1949. Since that time up to the date of hearing the force of members has
never exceeded 35 and at the time of the hearing only 32 menders were working.
She was included in a group of 15 menders laid off on September 16, 1948, the
first large group layoff of 1948. In the payroll period ending September 18,
1948, the force was cut from 109 to 88 employees in the mending department.
11 According to Respondents' Exhibit No . 2, in evidence , these 5 were laid off either on
July 23 or 26, 1948 By July 26, or prior thereto, 35 of the 50 laid off in 1948 had been
severed from the payroll Of the 5, above named, Boleski was rehired on September 9,
1949, Kotarski in April 1950 , and Rose Rossi was recalled for work, but failed to report.
12 Austic was subsequently laid off on October 1, 1948, and Carmella Rossi on October
5, 1948, according to Respondents ' Exhibit No 3. Nolter, according to Peters, was laid
off on or about July 28, 1948.
11 General Counsel ' s Exhibit No. 5.
KANMAK MILLS,' INC. 505
Petrovich signed a union card shortly after the organizational campaign
began. She testified- that she solicited some of her fellow employees to sign
union cards at the mending table when at work in the- plant, but admitted she
does not know whether any supervisor was aware of these activities. On October
20, 1948, the Union filed its first amended charge averring, among other things,
that Kanmak had discharged Petrovich for engaging in union activities.
In July 1949, Petrovich's father, a city councilman of Kulpmont, arranged an
appointment for her with Brennan, Kanmak's general manager, in order that
.she might request reemployment.
Pursuant to this arrangement, she met with Brennan at the latter's office on
some day in July 1949 After a brief preliminary conversation, Brennan men-
Coned the charge filed on her behalf by the Union and asserted that she was
unfriendly toward the Company.
Meanwhile, Brennan sent for Phillip Vandooselear, the foreman of the mending
department. Peter Rustchak, Kanmak's mill superintendent who shared the
office with Brennan, was present in the office during the entire time Petrovich
was there.
When Vandooselear arrived Brennan asked Vandooselear if the latter was
familiar with Petrovich's work. Vandooselear replied that her work had been
poor especially during the last few weeks when apparently she was not exerting
her best efforts.19 Petrovich interposed at this point, according to Vandooselear,
and said, "it wasn't too bad, was it?" whereupon Vandooselear replied, "No, but
the menders we kept were the better ones," and the only reason for laying you
off "Was because of lack of work.16 According to Vandooselear's further credited
and undenied testimony, Brennan then turned to Petrovich and said, "Your boss
has nothing against you," .. . "but you are not too friendly with the com-
pany," . . . "You know you have a case against us," and then said, "in case
your boss would have more work and considers hiring you back, . . . would you
drop the case against us9" and that when Petrovich replied, "Yes," Brennan
then asked Petrovich, "Would you write me a letter to that effect?" at which
stage of the interview Vandooselear said he left the office and failed to hear
I
Petrovich's reply.
Brennan gave the following testimony regarding his conversation with Petro-
vich concerning the filing and retraction of the charges :
A. I [Brennan] said, "I assume if you come back that you will be willing
to retract the charges now pending against [us]" . . . that she said,
"Yes," she would and I said, "Would you write a letter to that effect, and
she said "Yes" she would.
*
Q. Was she the one who brought up the subject first?
A. No, I asked her if she would . . . if conditions improved and we
started up our department and gave her an opportunity to come back in
view of the charges against us would she retract them, and she said
she would.
Petrovich's testimony regarding the conversation in Brennan's office is in sub-
stantial agreement with that given by Brennan and Vandooselear. Accord-
ingly, Brennan's above version is accepted as a substantially accurate version
14 This is the period when the charging Union was actively attempting to organize the
plant
15 Vandooselear on cross-examination admitted that it requires from a year to a year
and a half for an inexperienced employee to develop into a ,killed mender. Petrovich
had only been on the job about 8 months.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of what transpired during the interview. In addition, Petrovich testified that
she has never sent a letter to Kanmak retracting the charges and that she has
never been offered reemployment.
B. Conclusions
Upon the basis of the foregoing findings and the entire record the issues are :
(1) Whether Respondents interfered with, restrained, and coerced their,em-
ployees within the meaning of Section 7 of the Act; (2) whether Florence
Orlando was discriminatorily refused reemployment because of her union activi-
ties ; and (3) whether Lorraine Petrovich was discriminatorily refused reem-
ployment because of her union activities or, in the alternative, because she
filed, or caused to be filed, unfair labor practice charges against the Respondents.
1. Interference, restraint, and coercion
As found above : (1) Steinacher, Kulpmont's production manager , inter-
rogated Orlando, Borisheski, and Kemper, all of whom were rank- and-file
employees, concerning union activities and membership ; (2) Steinacher also
warned the three above-named employees. that Respondents would close, the
plant if the employees were organized; (3) Steinacher requested Borisheski
to try and induce fellow employees to vote against the Union, if an election was
held; (4) Sheriff, the superintendent of Kanmak's dye house, asked employee
William Balchunas if the latter had joined the Union and at the time also warned
Balchunas that the plant would shut down if it was organized; and (5) Larry
Lazorski, a foreman in the dye house, interrogated William Spieles, an employee
working under Lazorski, regarding Spieles affiliation with the Union and in
effect warned Spieles that the plant would be closed if it was organized by the
,Union." /
The law is well settled that interrogations by employers of employees regard-
ing the union activities and affiliations of employees are per se violations of
Section 8 (a) (1) of the Act 14 There can be no doubt that an employer's threats
to close a plant during an organizational campaign at the plant is a coercive
interference with rights guaranteed in Section 7 of the Act. The undersigned
finds that the above-mentioned acts and statements, constituted interference with,
restraint, and coercion of the employees in the exercise of their rights guar-
anteed in Section 7 of the Act, thus also in violation of Section 8 (a) (1) thereof.
2. The discriminatory refusal to reemploy Orlando
Orlando had been regularly employed for nearly 3 years on operation 1209
(about the "toughest" operation in the sewing room, according to Steinacher)
and she was not laid off until October 5, 1948, in the last group of 3 persons of
a total of 50 employees terminated in the 1948 reduction in force which began in
January and ended on October 5, 1948, and that 24 other sewing-machine
operators who had been laid off before Orlando in 1948, were either rehired or
16 The record also shows that Respondents are paying the premiums for some form
of accident insurance taken out for the benefit of the employees . Presumably the evidence
was offered to show that Respondents were granting benefits during the Union's campaign,
but no time was fixed regarding when the plan was initiated and announced, therefore,
no finding will be made regarding it. 1
17 Standard-Coosa-Thatcher Co , 85 NLRB 1358; Greensboro Lumber Company, 1 NLRB
629, 632; Sewell Mfg Cc., 72 NLRB 85, enfd. as modified (on other grounds) 172 F 2d
459 (C A 5) ; Ames Spot l elder Co, Inc, 75 NLRB 352, footnote 6; Wytheville Knitting
Mills, Inc, 78 NLRB 640, enfd as modified (on other grounds) 175 F. 2d 238 (C. A 3),
Minnesota Mining & Mfg. Co., 81 NLRB 557.
KANMAK MILLS, INC. 507
offered reemployment when business picked tip in the spring of 1949 and, also,
because the record convincingly shows that Orlando was the leading protagonist
for the Union among the sewing-room employees. Kulpmont' s assertion that its
only reason for failing to recall Orlando was due to her low efficiency is not
credited.
Although the record discloses that Orlando was not one of the best operators
in the plant, a comparison of the delinquency records of Carmella Rossi, Helen
Nolter, Helen Austic, and Orlando, all of whom were working on operation 1209
during most of 1948 (prior to their respective layoffs ), conclusively show that
Rossi, Nolter, and Austic had poorer delinquency records than Orlando. Never-
theless, Rossi was reemployed on May 10, 1949, Nolter on May 17, 1949, and
Austic was called on the telephone and offered a job on or about May 9, 1949,
but refused to accept it. Respondents admit in their brief that management
considered "delinquency" a major test of an operator's efficiency.18
In addition, Peters, the head supervisor in the sewing room, admitted that
Orlando was a better operator than many of those laid off in 1948 who were
either rehired or called back in 1949 and offered reemployment, which they de-
clined to accept. Peters also admitted that when reductions in force were nec-
essary the less efficient employees were the first to be laid off and customarily
the last to be recalled as, of course, would be expected.
Moreover, when Orlando returned to the plant on October 18, 1948, seeking
reinstatement (after the Union had sent a telegram to the Respondents as-
serting that she had been discriminatorily discharged and requesting her rein-
statement) Steinacher, on this occasion, asserted that she had not been dis-
charged but merely laid off because of low production, and he then told her
that she would be recalled for work, if and when additional operators were
needed In view of this statement by Steinacher, it was unnecessary for
Orlando to make any further application for reemployment when Kulpmont
started to rehire 19
There can be no dispute, regarding Kulpmont's knowledge of Orlando's union
activities, because the above-mentioned telegram from the Union was read to
her on October 18, 1948, when she called at the plant seeking reemployment.
Furthermore, as earlier found above, Steinacher told Borisheski during a con-
versation between the two men in September 1948, that he, Steinacher, suspected
Orlando was one of the leading advocates for the Union.
On the basis of the foregoing and the entire record the undersigned is con-
vinced that Kulpmont refused to reemploy Orlando on May 10, 1949, 20 be-
cause of her activities on behalf of the Union. Accordingly, I find that by
refusing reemployment to Orlando on May 10, 1949, and thereafter, the Respond-
ent Kulpmont has discriminated with respect to the hire and tenure of her em-
ployment, thereby interfering with, restraining, and coercing.the employees in
the exercise of the rights guaranteed in Section 7 of the Act.
3 The refusal to reemploy Lorraine Petrovich
As noted above, the complaint as amended alleges, in substance, that Kanmak
refused to reemploy Petrovich because she engaged in union activities or, in
18 As earlier defined , delinquency is measured by the difference between the guaranteed
minimum hourly wage earnings and the piece-rate earnings earned by an operator.
19 H. & H. Manufactunny Company, Inc, 87 NLRB 1373.
201 fix May 10, 1949, as the date of the refusal to reemploy because this is the date
Kulpmont rehired Carmella Rossi. These two employees were each laid off on October 5,
1948, assertedly for -high delinquencies. As noted above, Rossi had a slightly higher
delinquency record than Orlando.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the alternative, because she filed or caused to be filed unfair labor practice
charges against Kanmak.
Inasmuch as the record fails to show by substantial and convincing evidence
that Kanmak had knowledge regarding union activities on the part of Petrovich
other than that received from the charge filed by the Union, that it also fails to
show that any of the employees laid off with Petrovich, or prior thereto,.have
since been rehired, and that it affirmatively appears that no jobs were presently
available when Petrovich applied for reemployment in July 1949, the undersigned
concludes and finds that Petrovich has not been discriminated against within
the meaning of Section 8 (a) (3) of the Act.
As noted above, however, when Petrovich called on General Manager Bren-
nan at the plant in July 1949, and asked Brennan for work, he accused her of
being unfriendly toward the Company and, thereafter, asserted that she would
not be reemployed, if and when additional menders with her qualifications were
needed, unless she retracted in writing the charges filed by the Union on her
behalf.
Section 8 (a) (4) of the Act provides:
It shall be an unfair labor practice for an employer to discharge or other-
wise discriminate against an employee because he has filed charges or given
testimony under this act.
Consequently, Kanmak had no right to condition Petrovich's future employ-
ment upon the retraction of the charges filed on her behalf. Such conduct by an
employer, if permitted, would defeat the purposes of the Act, by discouraging
employees to file charges or to seek the aid of a union in processing such charges
for them.
Kanmak, in effect, contends in its brief that the motion to amend for the
purpose of including an 8 (a) (4) allegation in the complaint regarding
Petrovich's case may not be granted because the issue was not litigated at the
hearing and, in effect, moves that if the amendment to the complaint is allowed
the hearing should be reopened to take further testimony 21
I see no reason to reopen the hearing. My conclusion is primarily based upon
testimony given by Brennan, set forth above, in the findings of fact made in
Section III A. In my opinion, Brennan's testimony, set forth above, fully
sustains a conclusion and finding that Kanmak violated Section 8 (a) (4) of the
Act zz
On the basis of the foregoing and the entire record, I find that by refusing to
consider Petrovich for'reemployment, when jobs are available which she is
qualified to fill, unless and until she retracts the charges filed on her behalf by
the Union, the Respondents have engaged in discrimination against' Petrovich
within the meaning of Section 8 (a) (4) 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 operations of the Respondents 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.
21 It is noted that I denied a similar motion to amend in respect to Orlando's case because
a consideration of the record indicates that an 8 (a) (4) issue was not litigated at the
hearing in her case and that the motion was not timely presented.
21 Briggs Manufacturing Company, 75 NLRB 569
KANMAK MILLS, INC.
V. THE REMEDY
509
Having found that the Respondents have engaged in certain 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.
It has been found that Respondents discriminated in regard to the hire and
tenure of employment of Florence Orlando thereby discouraging membership
in the Union. It will be recommended that Respondents offer Florence Orlando
immediate and full reinstatement to her former or substantially equivalent,
position," without prejudice to her seniority or other rights and privileges, and
that Respondents make whole Florence Orlando for any loss of pay she may
have suffered by payment to her of a sum of money equal to the amounts she
would normally have earned as wages from May 10, 1949, the date of the dis-
crimination against her to the date of Respondents' offer of reinstatement,
less her net earnings during such period24 The loss of pay shall be computed
on the basis of each separate calendar quarter or portion thereof during the
period from Respondents' discriminatory action to the date of a proper offer
of reinstatement. It will be further recommended that Respondents make avail-
able to the Board, upon request, payroll and other records to facilitate the
checking of the amount of back pay due.26
It has also been found that the Respondents discriminated against Lorraine
Petrovich because she filed, or caused to be filed, charges under the Act, thereby
violating Section 8 (a) (4) of the said Act. Since, however, Petrovich was
validly laid off together with a number of other employees on September 16, 1948,
all of whom are unlikely to be reached for recall in the near future, it will be
recommended that the Respondents list Petrovich's name on its employment
records for recall at such time as the other employs laid off with her are offered
reemployment, absent the discriminatory requirement that Petrovich retract
the charges filed on her behalf by the Union.
The scope of the Respondents illegal conduct discloses a purpose to defeat
self-organization among its employees. Such conduct, which is specifically vio-
lative of Section 8 (a) (1), (3), and (4) of the Act, reflects a determination
generally to interfere with, restrain, and coerce their employees in the exercise
of the right to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to engage
in concerted activities for the purposes of collective bargaining or other mutual
aid or protection, and presents a ready and effective means of destroying self-
organization among their employees. Because of the Respondents unlawful
conduct and since there appears to be an underlying attitude of opposition on
the part of the Respondents to the purposes of the Act to protect the rights of
employees generally," the undersigned is convinced that if the Respondents are
not restrained from committing such conduct, the danger of their commission
in the future is to be anticipated from the Respondents' conduct in the past,
and the policies of the Act will be defeated. In order, therefore, to make effective
the interdependent guarantees of Section 7 of the Act, to prevent a recurrence of
unfair labor practices, and thereby minimize industrial strife which burdens
and obstructs commerce, and thus effectuate the policies of the Act, the under-
23 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
24 Crossett Lumber Company, 8 NLRB 440, 497-8
25 F. W. Woolworth Company, 90 NLRB 289; Cen-Tennial Cotton Gin Company, 90
NLRB 345.
26 See May Department Stores Company , etc. v. N L. R B , 326 U. S 376.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed will recommend that the Respondent cease and desist from in any manner
infringing upon the rights guaranteed in Section 7 of the Act.
Inasmuch as the two corporate Respondents, admittedly, are commonly
owned and each of them is managed by the same officers, and that each of them
pursue a commonly controlled labor relation policy, they should jointly be enjoined
in the future from committing any of the unfair labor practices found herein
to have been committed by either of them in the past.
Since it has been found that the evidence does not support the allegations
.of the complaint that Lorraine Petrovich was discriminatorily refused reem-
ployment by the Respondents in violation of Section 8 (a) (3) of the Act, the
undersigned will recommend that the allegations of the complaint with respect
to these allegations be dismissed.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAw
1. Textile Workers Union of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. 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 (a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of
Florence Orlando, and thereby discouraging membership in Textile Workers
Union of America, CIO, the Respondents have engaged in and are engaging in
unfair labor practices within,,^he meaning of Section 8 (a) (3) of the Act.
4. By discriminating in regard to the hire of Lorraine Petrovich because she
filed charges under the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (4) of the Act.
5. By refusing to reemploy Lorraine Petrovich in July 1949, the Respondents
have not violated Section 8 (a) (3) of the Act, as alleged in the complaint.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
CHARLES C. CATHIIY, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE
OF T. M. CATHEY, D/B/A CATHEY LUMBER COMPANY 1 and LOCAL No.
422, INTERNATIONAL WOODWORKERS OF AMERICA, C. I. O. Case No.
15-CA-140. February 28, 1951
Decision and Order
On October 31, 1950, Trial Examiner W. Gerard Ryan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that he cease and desist there-
i The name of the Respondent appears as amended.
93 NLRB No. 80.