M. Lowensten & Sons, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1964

150 N.L.R.B. 737 (N.L.R.B. 1964)

M. LOWENSTEIN & SONS, INC. 737
or refusing to reinstate , or in any other manner discriminating against them in
regard to their hire or tenure of employment or any term ' or condition of
employment.
WE WILL offer Glen Jackson immediate and full reinstatement to his former
or substantially equivalent position , without prejudice to his seniority or other
rights and privileges previously enjoyed, and make him whole for any loss of
pay suffered by him as a result of our discrimination against him.
WE WILL NOT in any manner interfere with, restrain , or coerce our employees
in the exercise of their rights to self-organization , to form labor organizations,
to join or assist the Union named above , or any other labor organization, to
bargain collectively through representatives of their own choosing , and to engage
in other concerted activities for the purposes of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of Service & Maintenance Employees Union , Local 399, Building
Service Employees International Nnion , AFL-CIO, or any other labor organization.
PASADENA BOWLING CENTER
Employer.
Dated---------------r--- By-------------------------------------------
(Representative ) ' , (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 849 South
Broadway, Los Angeles, California , Telephone No. 688-5206, if they have any ques-
tions concerning this notice or compliance with its provisions.
M. Lowenstein & Sons, Inc. and Lyman Printing & Finishing
Go., Inc. and Textile Workers Union of America, AFL-CIO.
Case No. 11-CA-2278. December 30, 1964
DECISION AND ORDER
On May 26, 1964, Trial Examiner. C. W. Whittemore issued his
Decision in the above-entitled proceeding, finding that the Re-
spondents had engaged in tnd were engaging in certain unfair labor
practices within the meaning of the National Labor Relations Act,
and recommending that they cease and desist therefrom and take
certain affirmative action, as-set forth in the attached Trial Exam-
iner's Decision. He also found that Respondent had not engaged in
certain other unfair labor charges alleged in the complaint and
recommended dismissal of these allegations. Thereafter, the Re-
spondents filed exceptions to the Decision and a supporting brief.'
Pursuant to the provisions of Section-3(b) of -the Act, the Board
has delegated its powers in' connection'with, this case to a three-
member panel. [Members Fanning, Brown, and Jenkins].
The Board has considered the ' Trial, Ekami, er's Decision, the ex-
ceptions, and the entire record in the case, and hereby adopts the
'The motion of the Charging Party to strike certain exceptions filed by Respondent,
Lyman Printing & Finishing Co., Inc, is hereby denied
150 NLRB No. 66.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
findings, conclusions, and recommendations of the Trial Examiner,
except as noted hereinafter 2
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts, as its
Order, the Order recommended by the Trial Examiner and orders
that the Respondent, Lyman Printing & Finishing Co., Inc., its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, with the following
modifibation :
Paragraphs 2(b), 2(c), and 2(d) are redesignated 2(c), 2(d), and
2(e), respectively, and a new paragraph 2(b) is included as follows:
"Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstate-
ment upon application in accordanc with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces."
2 Respondents except to the Trial Examiner ' s conclusion that Lowenstein and Lyman
constitute a single employer and are therefore jointly liable for the violations found herein.
Lyman, doing business in South Carolina , is one of the wholly owned subsidiaries of
Lowenstein , which is located in New York Its chief executive officer is a vice president
and the general manager who holds no positions with Lowenstein Theie is no common
board of directors or integration of operations They do not have a centrally controlled
or common labor relations policy and Lowenstein is not involved in the day -to-day opera-
tions of Lyman or otherwise involved in setting wages , hours, working conditions, or any
other terms of employment of Lyman ' s employees , nor was it involved in any way in the
commission of the unfair labor practices found herein . Upon the entire record, we find
merit in Respondents ' exception and shall dismiss the complaint as to Lowenstein. The
Trial Examiner ' s Recommended Order and notice shall be modified accordingly.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASES
Upon an original and three amended charges, filed by the above -named labor
organization on various dates between October 18 and November 29, 1963, the Gen-
eral Counsel of the National Labor Relations Board on March 13, 1964, issued his
complaint and notice of hearing in the above -entitled case . An answer thereto was
thereafter duly filed by Respondent Lyman Printing , but no answer has been filed
by the Respondent M. Lowenstein .' The complaint alleges that both Respondents
have engaged in unfair labor practices in violation of Section 8(a) (1) and ( 3) of the
National Labor Relations Act, as amended . The answer of Respondent Lyman
Printing denies the commission of the alleged unfair labor practices . Pursuant to
notice, a hearing was held in Spartanburg, South Carolina, on April 13, 14, and 15,
1964, before Trial Examiner C. W. Whittemore.
At the hearing all parties except M. Lowenstein were represented . All were
accorded full opportunity to present evidence pertinent to the issues, to argue orally,
and to file briefs. No briefs have been received , except a memorandum from General
Counsel bearing upon his motion for "summary judgment" against the Respondent
Lowenstein , upon which ruling was reserved at the conclusion of the hearing. Dis-
i At the opening of the hearing the Trial Examiner granted a request made by Attorney
Alexander to permit entry of an appearance for Attorney Rappoport. The latter, how-
ever, did not appear at the hearing, and the record reveals no communication from hint
since his filing a motion for dismissal , undated, with the Regional Director prior to the
hearing.
M. LOWENSTEIN & SONS, INC. 739
position of said motion, as well as that of a motion by the Respondent Lyman Print-
ing for dismissal of the complaint, is made by the following findings, conclusions,
and recommendations.
After the close of the hearing General Counsel submitted a motion, bearing upon
its face the consent of counsel for the Respondent Lyman Printing, for the inclusion
among the formal documents in evidence of a registered mail receipt and service.
The motion is granted and the document made a part of the record as requested.
Upon the record thus made, and from his observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Lyman Printing & Finishing Co., Inc., is a South Carolina corporation, and is a
wholly owned subsidiary of M. Lowenstein & Sons, Inc., a New York corporation.
This finding rests upon the admission of the answer filed by Respondent Lyman Print-
ing, despite the claim made by counsel for Respondent M. Lowenstein in his pre-
hearing motion referred to in footnote 1, above, that his client neither owned nor
operated Lyman Printing. It is also supported by the testimony of Vice President
and General Manager Magarahan of Lyman Printing. Magarahan also testified that
W. H. Grier, president of Lyman, is a director of M. Lowenstein, and that Robert
Benhaim is the executive vice president of both corporations. Magarahan further
testified the M. Lowenstein issues a "consolidated income statement-income tax
return-and consolidated balance sheets are shown" for all its "related corpora-
tions," including Lyman Printing.
Although the complaint does not specifically allege that Respondent Lowenstein
and Lyman Printing constitute a single, integrated enterprise and employer, I am
convinced that a conclusion to this effect is fully warranted by the evidence in the
record, and it is here made.2 Unless there be evidence to the contrary, it is reasonably
to be presumed that the words "wholly owned" mean "wholly controlled." And here,
as noted, the executive vice president of both corporations is the same individual. It
would clearly be unreasonable to conclude that either labor or management policies
of a wholly owned company should function counter to the open or tacit approval
of the owner.3
It is admitted and found that Lyman Printing is engaged in the processing, finishing,'
and manufacturing of cotton and synthetic textile products at a plant located in
Lyman, South Carolina, and that during the year preceding issuance of the com-
plaint it (1) purchased raw materials from points outside the State of South Carolina
valued at more than $100,000, and (2) during the same period sold and shipped to
points outside South Carolina products valued at more than $100,000.
It is concluded and found that the Respondents are engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, AFL-CIO, is a labor organization admitting
to membership employees at the Lyman plant , the only plant here involved.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
The chief issues raised by the complaint arise from the admitted fact that the
Respondent Lyman discharged five employees on or about August 20, 1963, Camp-
bell, Farmer, Foster, Johnson, and Shelton, one employee, Fuller, on August 14, and
another, Barnett, on September 12. General Counsel alleges and the answer denies
that these employees were dismissed to discourage union membership and activity.
There is no dispute, and it is found, that all the above discharges occurred during
the Union's organizational campaign at the Lyman plant. Nor does the Respondent
3
The complaint does allege that the "Respondents" engage in commerce within the
meaning of the Act, and that the "Respondents" engaged in certain unfair labor practices.
3 See Scott Manufacturing Company, et at , 133 NLRB 1012 Also rule 15(b) Federal
Rules of Civil Procedure "When issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects as if they had been
raised in the pleadings "
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lyman deny its open opposition to the attempt to organize its some 2,000 plant
employees. It concedes that it both posted and mailed to all employees a notice
containing the following language:
(1) Whether this Union shall come in at Lyman is, of course, a subject of
concern to this Company. It is equally, however, a matter of serious concern
to you, and our sincere belief is that if this Union were to get in here, it would
not work to your benefit but, in the long run, would itself operate to your serious
harm.
In his covering letter, accompanying the mailed "Notice," General Manager Magara-
han stated to employees that "this Notice is of vital importance to everybody who
works at Lyman."
In addition to the discharges and the above-quoted notice, the complaint alleges
and the answer denies the commission of other management conduct of interference,
restraint, and coercion of employees in the exercise of rights guaranteed by Section
7 of the Act.
B. Other conduct of interference, restraint, and coercion
Competent and credible testimony shows that subordinate management officials at
Lyman proceeded to implement, by their individual conduct, the tacit threat of
"harm" expressed in the general manager's communication to all employees, above-
quoted. Such incidents include:
(1) Employee P. J. D. Owens attended the early organizing meeting of the Union
on August 1. The day after his attendance Overseer Langston, admitted by the
answer to be a supervisor within the meaning of the Act, asked him if he had
attended the meeting and "how many of our boys were there." Langston gave him
some newspaper clippings claiming that the "CIO union" had furnished money for
bonds for "Freedom Riders," and told him to "let the boys read them." 4
(2) Foreman Hawthorne (also conceded by the answer to be a supervisor within
the meaning of the Act) asked the same employee if he had any "blue cards," by
which it is reasonably inferred he meant union cards.5
(3) Employee Carlisle testified without contradiction, and it is found, that Second
Hand Daniels, admitted by the answer to be a supervisor within the meaning of the
Act, in mid-August asked him to confirm what he hid heard from another employee:
that employee Williams had "offered us a (Union) card. The next day Overseer
Daniels telephoned Carlisle and interrogated him in the same manner.
(4) Shortly after the several summary discharges of August 20, to be later
described, Assistant Overseer "Able" Harris at a local "launderette" met employee
Ward and, according to his own testimony, interrogated the employee about "union
activity" on the second shift. Also according to his own testimony, he "mentioned
two or three color mixers on the second shift, and he (Ward) ... verified whether
they had been attending Union meetings or not or talking union up in the color shop "
Further, according to Harris' own testimony, he asked Ward if Owens, identified
above, had "asked him to sign a Union card." At first Ward denied it, but after
pressing his query, according to Harris, Ward finally admitted that he had been asked
to sign by Owens.6 Harris then, he admitted, asked Ward to sign a statement to this
effect. Ward declined. According to Ward's credible testimony, Harris explained
that he wanted to fire Owens. The supervisor then asked Ward to follow him home-
a wheel on his car was "wobbling"-and the employee did so. At Harris' home,
Ward credibly testified, the supervisor finally told him that he would give him $20
if he would sign the requested "statement." 7
' Toward the close of his case, counsel for Lyman assured me that-Langston was on his
way to the hearing from the plant He did not appear, and after a recess counsel rested
his case. Owens' credible testimony on this interrogation is therefore uncontradicted.
5 Like Langston, Hawthorne did not appear at the hearing, although counsel indicated
that he was "on the way" Finally, General Counsel agreed-to stipulate that Hawthorne
"would say that Preston J. D Owens told him that he had some blue cards and
Hawthorne said `May I see one"'" L do not consider that this stipulation in any way
controverts Owens' undisputed testimony that Hawthorne asked him if he had such cards
OOnly in response to a leading question did Harris agree that this was "during work-
ing hours " I can give small weight to this response.
Harris denied only that he had told Ward anyone was trying to fire Owens, or that
he had offered him anything to sign a statement The denials are not credited His
admitted persistence in unlawfully trying to elicit information from Ward is consistent
with his offering a reward for its receipt
M. LOWENSTEIN &,SONS , INC. 741
I conclude and find that the above -described incidents of interrogation , of offering
a reward for a statement implicating another employee , and of Harris' clearly implied
threat that employees active in the Union were to be fired, all constituted interference,
restraint , and coercion of employees in the exercise of rights guaranteed by Section 7
of the Act. Furthermore , such unlawful conduct serves as a signficant and relevant
context in which to appraise the concurrent discharges.
C. The discharges
1. The dismissals of August 20
Five employees of combined service with the Respondent Lyman of about 40 years
were suddenly dismissed on or about this date-2 days after a union meeting at a
Main Street hotel in Spartanburg.
J. L. Johnson : Johnson , during the year and a half of his employment , was a sort
of utility man, filling in on various jobs as needed . On the third shift of August 19
he was running a "sanforizer " under Overseer Brock and Second Hand McGowan.
Johnson signed a union card at the hotel union meeting , and brought - a number of
unsigned cards to the plant when he reported for work on his next shift , August 19.
Before the end of the shift , early the next morning , another employee , Burdette, came
to Johnson at his machine and asked for a card . Johnson told him to get one out
of his lunch box nearby and Burdette did so. When Johnson reported for work the
next night , August 20, Overseer Brock met him at the plant gate and took him to the
personnel office, where he was discharged for soliciting "Union cards " during work-
ing hours.
Johnson denied that he had "solicited" during working hours, or that he had
"hindered" other employees , as Brock claimed . I believe Johnson, not Brock.
The testimony of the Respondent's witnesses concerning this dismissal-the two
supervisors , Brock and McGowan ,- and two employees , Burdette and Campbell-is
so mutually inconsistent and contradictory that I can place no reliance upon any
part of it.
Second Hand McGowan claimed that he "was seeing him (Johnson ) off his job
talking to other people ... six or eight times ," yet did nothing about it except to tell
Brock about it when the latter came in to work next morning at 7 o'clock . It is the
opinion of the Trial Examiner that a supervisor who says he' observed an employee
under him neglecting his work six or eight times during a single shift yet fails even
to suggest to that employee that he get back to his work deserves either not to hold a
supervisor 's position or not to be believed.
Employee Burdette claimed that Johnson came to his "tender frame," about 150
feet distant, two or three times the night before the discharge and asked him to join
the Union . - He refused each time , he said. On the third occasion , Burdette contended,
Johnson thrust a card into his pocket and threatened to "whip" him if he did not
sign it. Burdette said also that he later reported these matters to McGowan and gave
him the "blue card." That he had a blue card to give to McGowan is, of course,
consistent with Johnson's testimony that Buidette asked ,for, and obtained, a card
from his lunch box. But on its face it is unreasonable to believe that Johnson would
twice ask a fellow employee if he wanted to join the Union and, after twice being told
"no," go to him a third time, force a card upon him, and threaten to "whip" him if he
did not sign . Further discrediting Burdette is the admitted fact that he did sign a
statement prepared for him 3 days after Johnson had been fired, containing in sub-
stance what he testified to. I believe , from examination of documents in evidence,
that the text of this statement signed by Burdette was prepared by Personnel Director
Brooks, who admitted preparing similar text for another employee's signature , as will
later be described . Nor can I ignore the undisputed fact, found above, that Super-
visor Harris, on about the same date, tried to persuade employee Ward to- sign a
similar statement against employee Owens. -
Overseer Brock claimed that McGowan told him of the Burdette incident when
he came in early August 20 , and of Johnson's talking to "several different people."
He added, "Campbell is the only one .1 know about." According to Brock's own
testimony , upon no more than McGowan 's report, "I wrote his (Johnson 's time out
and met him at the gate the following night." . The spectacle created by Brock's own
testimony discredits him. Even if actually reported to him, the incidents were minor,
and it is unreasonable to believe that a top supervisor-absent some other motive-
should, without even asking the employee if the report were true , have his discharge
made out and wait at the plant gate for him to report on the next night's shift.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore , employee Campbell , also a witness for the Respondent , flatly refuted
Brock's claim that he knew about Campbell before the discharge. Campbell testified
that sometime during the shift in question Johnson did ask him to sign a card but
that he did not voluntarily go to Brock or inform against his fellow employee until
after Johnson had been discharged.
Finally, there is not the slightest evidence that until after his attendance at the
union meeting and his bringing cards to the plant had management ever had occasion
even to criticize or complain about Johnson for any reason.
In short, I am convinced , and conclude and find, contrary to the Respondent's
claim that he was fired for disobeying rules, that Johnson actually was summarily
dismissed to discourage union membership and activity , and that such discrimination
constituted unlawful interference , restraint , and coercion.8
R. W. Foster For 2 years before his discharge this employee had been a dye mixer.
At the time of his dismissal he worked on the third shift under Superintendent Gaino
and during this period , so far as the record shows , Foster had never been warned or
reprimanded for any dereliction.
He signed a union card the day after the hotel union meeting at his machine in
the plant. When he reported for work the next night he was sent to the personnel
office, where Brooks, Gaino, and Night Superintendent Robinette were waiting for
him. Brooks told Foster to come in the next morning and get his "time." He was
told he was being discharged because he was "wandering around" hindering "other
people performing their duties ." ( The quotations are from Foster's credible
testimony.)
The Respondent offered no direct or credible evidence as to any incident of "wan-
dering around" or "hindering" on the part of Foster . Gaino, it appears , no longer
works at this plant , but was not shown to be unavailable as a witness . General
Counsel for Lyman stipulated that if Gaino were called he would testify that "he
discharged Foster" because he had "received a report from one of the night,super-
visors that Foster was leaving his job and going into other departments ," and "got
two reports from other departments that he was interfering with other employees......
Since the Respondent offered no testimony from any "night supervisor " or anyone
from "other department," to support whatever Gaino might have claimed, had he
been a witness , I do not consider myself bound to accept the truth of the matters so
stipulated by counsel.
Brooks was a witness , but far from impressive . He said he had nothing to do with
the discharge except be present, and only heard that Foster had left his department.
He admitted that Foster flatly denied the accusation.
Apparently to give some semblance of support to the claim that at least one em-
ployee was spoken to in the plant by Foster , the Respondent placed in evidence a
document purporting to be the statement of employee "Farmer," to the effect that "on
the night of August 19," while he was on the job, he was approached by Foster and
asked to "sign a union card." It developed from Brooks' testimony , however, that he,
himself, wrote the text, and that some supervisor , he did not know who, got Farmer
to sign it . He said he did not recall whether he gave it to Gaino or not, nor did he
have any idea when Farmer signed it.
Foster flatly denied that he went to Farmer at his work station that night. In the
absence of any competent evidence to refute the denial , it is credited by me.
In short, I find no merit in the unsupported claim that Foster left his work or inter-
fered with others on the night of August 19, or at any other time.
The management-prepared document in evidence establishes that management at
least believed Foster to be sympathetic to the Union , which it openly opposed. I con-
clude and find that, like Johnson, Foster was discharged to discourage union member-
ship, and that such discrimination constituted interference , restraint , and coercion.
James V. Shelton: This employee had 10 years ' service as an employee with the
Respondent , and there is no evidence to show that management had ever found rea-
son, until after he became active in the Union , to find any fault with his conduct or
his work.
Shelton attended the August 18 union meeting , and when he reported for work
on his second shift the next day brought with him a number of unsigned "blue" cards
in his pocket . He testified that on the second shift he obtained the signature of one
employee to a card. At the conclusion of the second shift, on which he served as a
8 While not binding upon the Board , it is noted that the South Carolina Employment
Security Commission , by its Appeal Tribunal , on December 5, 1963, concluded and decided
that Johnson had been "terminated but not for misconduct connected with work." The
relevant documents are in evidence as a Respondent ' s exhibit.
M. LOWENSTEIN & SONS, INC. 743
"greige tender," he was assigned to work overtime on the third shift by Chief Inspector
Moore. (Contrary to the Respondent 's claim, I find, on the basis of the testimony
of Division Superintendent McCullen, to the effect ' that Moore assigns work, that
Shelton is expected to "obey" him, and that Moore in fact is a supervisor within the
meaning of the Act.)
On the third shift Shelton was assigned to "pushing boxes" from one of several
departments to another. According to his credible testimony, on this third shift he
asked three different employees if they wanted to sign a card, but none did. One he
asked during a break, another as he was helping him push a box, and a third in the
"smoke room ," where both were taking a smoke, as permitted . It is undisputed that
on some of these trips into various departments Chief Inspector Moore went along
with him to help push the boxes . Nor is there any credible evidence that any super-
visor , at any time during his 16 hours of work , warned him or said anything about
his work or trips through the plant.
Not long after reporting for work on' his regular second shift, on August 20, he
was taken to the personnel office where Brooks, Overseer Reese, and Superintendent
McCullen were awaiting him. Reese asked him if he had worked overtime the night
before, and he said he had. Brooks then declared that he had "five complaints that
you have been bothering the help in five different departments," and that these
included the sewing and towel departments , against the company policy. He was
then discharged and told to come in the next morning for his pay.
I consider it unnecessary to review in detail, here, the maze of inconsistent and
implausible testimony of the many management witnesses concerning their claimed
observation of Shelton on the night of August 19. Such witnesses included : Personnel
Director Brooks, Assistant Overseer Medlock, Night Superintendent Robinette , Assist-
ant Overseer Goodman, Overseer Reese, Superintendent McCullen, and Chief
Inspector Moore. Yet it appears that no one of this array of management officials
said a single word to Shelton that night about being where he was or where he was
not supposed to be. And Superintendent McCullen candidly admitted that he had
never heard of Shelton ever neglecting his work except on this one night.
The discernible sum of all such testimony is to the effect various supervisors
observed Shelton, while making rounds with boxes as he had been ordered to do by
Moore, speak to other employees , but there is no evidence that such "speaking" in
any way interfered with anyone's work. As to his going into the sewing room, or
towel room , supposedly "off limits," I credit Shelton 's testimony to the effect that
he was instructed to go there by Moore.
In summary , I find no merit in the Respondent 's claimed reasons for dismissing
Shelton. On the contrary, I conclude and find that Shelton, like Foster and Johnson,
was discharged to discourage union membership and activity, and that such discrim-
ination constituted interference , restraint , and coercion.
Clara Mae Farmer: This employee, who worked in the sewing department, had
more than 22 years' service with the Company when she was summarily and without
previous warning discharged.
The circumstances leading up to her dismissal are as follows : Early in February
1963 management inaugurated a "speed-up " system in the sewing room, where some
60 female workers were employed . As witnesses management officials readily con-
ceded this "speed up" caused genuine dissatisfaction in the department and that such
dissatisfaction was fully warranted is reasonably inferred from the fact that on at
least three occasions since February, and up to August 19, management had found
it necessary to make changes in the system . There is no doubt but that Farmer, of
long service and conceded by management to be an "above-average" producer, was a
leader in voicing protests against the "speed-up."
On August 19, the day before her discharge, Superintendent Mullen told the sewers
of a new change to be made effective the next day, and then left the plant. After
Mullen left Farmer discussed the changes with his subordinate , Overseer Mahaffey.
She suggested certain alterations in the newly announced policy, and the overseer,
according to his own testimony, told her that he had no authority to modify it.
Mahaffey then testified: "She asked me then about, how about Mr. Mullen and I said
I would see him, but I do not think he will do it, and she said will you make arrange-
ments to talk to Mr. Mullen, and I told her that I would because he was out of
town...."
It is clear both from his above-quoted testimony, as well as that of Farmer, that
she asked him to speak to Mullen about her proposal, not that she asked to see Mullen
herself. Despite his quoted testimony , Mahaffey then claimed that the next morning
he told Mullen that Farmer "wanted to have an interview with him." This part of
his testimony I do not credit.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The same day, August 19, according to Farmer's credible testimony, and after her
discussion with Mahaffey that morning, she told Lee Simpson, assistant overseer,
that "we are all going to join the Union" and that the Company would have to "pay
for lost time and return to the old rates."
The next morning she was taken to the office by the floorlady, where she was dis-
charged by Mullen, who told her it was because she was "dissatisfied." This finding
rests upon her credible testimony, and the circumstances as first described by
Mahaffey.
Mullen, however, testified that Farmer came in and told him she wanted to talk
to him about the new rates, declared her dissatisfaction with them, told him she
could make $100 a week selling produce, and that he then told her she was through.
I cannot- credit Mullen's testimony as to the discharge. It is wholly inconsistent
with her long and satisfactory service as an employee. Nor did employees them-
selves believe that her "poor attitude" brought about her discharge, as is evidenced
by Mahaffey's testimony that the next day after Farmer's discharge three other girls
came to him, admitted they were in sympathy with the union movement, and asked
if he was going to fire them. It is obvious that he did not fire them.
I do not credit Simpson's denial of the fact that on August 19 Farmer had told him
the girls were going "union," or that he so informed his superiors.
The circumstances established by credible evidence lead to the reasonable conclu-
sion, here made, that upon learning of Farmer's assertion that the girls in the sewing
room were going "union" to obtain what they wanted, Mullen decided to take the
summary action to discourage the threatened organizational movement. Such dis-
crimination constituted interference, restraint, and coercion.
Defoix Campbell: This employee, so far as the record shows, had been a satisfactory
employee for some 4 years when, without warning, he was suddenly discharged on
August 20. The dismissal falls within the familiar pattern of that involving Johnson,
Shelton, and Foster-the Respondent's claim being that he was away from his work
station and interfered with the work of others.
Campbell's regular work was as a "starch mixer" on the third shift. On the night
before his discharge, however, he was called in to do other work at 7 o'clock on the
second shift-work which required his going into and through various departments.
At 11 o'clock that night he resumed his regular task of tending two starch mixers
which supplied certain "ranges" on the floor above. This work, it is undisputed, also
required occasional absences from his mixers, either to obtain more "mix," or to
ascertain from the floor above how many "yards" were to be run, in order to gage
the amount of mix.
According to his credible testimony, he performed his work, on both shifts, accord-
ing to long-established practice, admitting that he went where this work required him
to. There is no credible evidence that any supervisor, at any time during that long
night of 12 hours, warned him for being away from his work station.
As he entered the plant gate on August 20 he was met by Assistant Overseer Med-
lock, who told him to report to Overseer Leonard. Leonard took him to Brooks'
office, and there fired him, according to his own testimony, "because he did not fulfill
his duties and also interfered with other employees," and based upon a report to
this effect from Medlock, the third-shift foreman.
I find no substantial or credible evidence that Campbell in any way "interfered with
the work of others" that night from any witness. The gravamen of the accusations'
made by the Respondent's witnesses is to the effect that twice during the third shift,
Campbell permitted the mix to run out of his mixers, which caused brief delays in
the operation of the ranges upstairs. There are claims that such failure could result
in damage, but none is shown actually to have occurred. Campbell flatly denied that
he knew anything about or had his attention called to running out of mix' that night,
and I believe him.
The one employee, Russell, called by the Respondent to testify concerning his
"calendars" being down because of lack of "starch mix," admitted that "we have run
out of starch before, and we have run out of starch since" the discharge of Campbell,
but he never knew of anyone being dismissed for it. "A lot of times, a lot of things
make starch run out," he added, much to counsel's obvious discomfiture. Nor did the
Respondent offer any credible proof that any one, other than Campbell, had ever
been discharged for this alleged dereliction.
It is clear that, even if it were to be found that starch did "run out" a couple of
times, this was not an infrequent occurrence. Had it been serious his superior,
Medlock, would surely have reprimanded, or warned, the employee, but Medlock made
no claim that he did either. I am convinced that Campbell was dismissed for reasons
other than those claimed by the Respondent.
M. LOWENSTEIN & SONS, INC. 745
Campbell was active in soliciting union card signatures near the plant, and in the
"water house" or toilet, the day before his discharge, obtaining some 10 or 15 sig-
natures. Although supervisors denied knowledge of such activity, I cannot believe
them, in the context established by the Respondent itself-the number of willing
informers whose signatures were purportedly obtained to statements written by Brooks.
In short, I conclude and find that Campbell actually was dismissed, as were the
others fired the same day, to discourage union membership and activity, and that such
discrimination constituted unlawful interference, restraint, and coercion.
2. The discharge of C. V. Fuller on August 14
Fuller had been employed by the Respondent about 7 years when discharged on
August 14. He was a "winder operator." In brief, his job consisted of taking a roll
of cloth, cutting it to proper size, inspecting it, and "tagging" it. If holes or other
imperfections were discovered these sections were supposed to be removed, spliced,
or sewed.
Fuller, as a witness, admitted that he had been told of written complaints about his
work, that he once had been taken off this job for a 2-week period, and again had
been suspended for 3 days because of bad work before his ultimate discharge.
Overseer Garrett testified that 2 days before he had ordered the discharge, Fuller
had failed to put certain labels on a "combination," as required by Government
specifications, and extra help had been needed to remedy his failure and meet the
delivery deadline. He further testified that the next day-the day before the dis-
charge-Fuller ran some 2,500 yards that "were as bad as I have seen as far as
streaks and mark-off is concerned."
Fuller admitted that the cloth he had run and was shown to him was "bad" but
that he could not recall as to his failure regarding the labels.
Although the employee claimed that he had engaged "in union activities" he said
he "couldn't remember exactly when," but thought it was "around somewhere in July."
And he admitted that he never signed a union card himself.
Finally, he admitted that -just a week before his discharge he had voluntarily told
Garrett that he did not believe in the Union, and that a union "like to have starved
me to death one time."
Since it appears from Fuller's own testimony that Garrett had reason to believe
that he shared management's own openly expressed opposition to the Union, there
is small basis for a conclusion that he was discharged to discourage union member-
ship and activity.
It will be recommended that the complaint be dismissed as to this employee.
3. The discharge of Lee Barnett on September 12
Like Fuller, Barnett was a "winder operator." He had been employed for some
21 years by this Company when suddenly, without warning, he was discharged.
Barnett is a "preacher." He attended the hotel union meeting previously described,
led the meeting in prayer, got cards signed, and visited employees in their homes.
Although it appears that in past years Barnett had opposed the efforts toward self-
organization, Garrett corroborated his testimony that shortly before his discharge
Barnett had objected vigorously to the imposition of certain time studies and declared
that the Union was "coming in."
According to Section Hand Moon, on.the day before Barnett's discharge, in rein-
specting certain cloth the employee had previously run, he found about 800 yards that
was faulty with "holes" and "doctors' marks." He reported the fact to Garrett. Moon,
however, on cross-examination admitted that all such operators had "bad work" occa-
sionally, and said that Barnett had been a "good worker" for the 8 to 9 years he
had worked on his shift.
Barnett admitted that on this occasion such "bad work" had been performed by him.
Garrett, who claimed he discharged Barnett for the faulty work found by Moon,
admitted that he had "supervised" Barnett for about 25 years, and never had even
laid him off for any "bad work." He further admitted that it was company policy to
"lay people off for a temporary time" only if their bad work was "severe."
Thus it is clear, from Garrett's own testimony, that he failed to follow his own
policy in his treatment of Barnett, and that it was in marked distinction from that
accorded Fuller, who had been both taken off the job and laid off completely prior
to his ultimate discharge. I do not believe that Garrett discharged Barnett because of
the incident of bad work, but conclude and find that the discrimination was for the
purpose of discouraging union membership and activity. Such discrimination con-
stituted unlawful interference, restraint, and coercion.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The notice
Consistent with White Oak Acres, Inc., 134 NLRB 1145-1150, I conclude and find
that by the language in the notice posted and sent to all employees, quoted in section
A, above, and especially in the context of other unfair labor practices herein described,
the Respondents have interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act. The implied threat that the
"serious harm" would be inflicted by the Company in the context of events, became
explicit in the minds of employees. Of significance on this point is the testimony
elicited by the Respondent itself, to the effect that immediately upon the discharge
of employee Farmer, three other female employees came to their supervisor and, in
effect, expressed the fear that they might be discharged because they also were
sympathetic to the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection 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.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices I will
recommend that they cease and desist therefrom and take certain affirmative action
to effectuate the policies of the Act.
It will be recommended that the Respondents offer immediate and full reinstate-
ment to their former or substantially. equivalent positions, with6ut loss of seniority
or other rights and privileges, to employees J. L. Johnson, R. W. Foster, James V.
Shelton, Clara Mae Farmer, Defoix Campbell, and Lee Barnett, and make them whole
for any loss of earnings they may have suffered by reason of the unlawful discrim-
ination by payment to each of them of a sum of money equal to that which he or
she normally would have earned as wages, absent the discrimination, from the date
of the discharge to the date of offer of full reinstatement, and in the manner pre-
scribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., Inc., 138 NLRB 716.
In view of the serious and extended nature of the Respondents' unfair labor prac-
tices, it will be recommended that they cease and desist from in any manner infringing
upon the rights of employees guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. M. Lowenstein & Sons, Inc., and Lyman Printing & Finishing Co. Inc., constitute
a single employer within the meaning of Section 2(2) of the Act.
2. Textile Workers Union of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of employees,
as described herein, to discourage membership in a labor organization, the Respond-
ents have engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed by 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.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
6. The Respondents have not engaged in unfair labor practices within the meaning
of the Act in discharging employee Fuller.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in the case , I recommend that M. Lowenstein & Sons, Inc., and Lyman
Printing & Finishing Co., Inc., the Respondents herein , their officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and activity on behalf of Textile Workers Union
of America, AFL-CIO , or in any other labor organization , by discharging , laying off,
or refusing to reinstate any of their employees because of their union membership
I
M. LOWENSTEIN & SONS, INC. 747
of activities , or not in any other manner discriminating in regard to hire or tenure
of employment , or any term or condition of employment.
(b) Unlawfully interrogating employees as to their union sympathies, offering
rewards to sign statements implicating other employees in union activities, or threaten-
ing reprisals because of union membership or adherence.
(c) In any other manner interfering with, restraining , or coercing employees in
the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Offer employees J. L. Johnson, R. W. Foster, James V. Shelton, Clara Mae
Farmer, Defoix Campbell, and Lee Barnett immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any loss of pay they may have
suffered by reason of the discrimination against them, in the manner set forth above
in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine the
amount of backpay due and the right of reinstatement under this Recommended
Order.
(c) Post at their operations in Lyman, South Carolina, copies of the attached
notice marked `Appendix." 9 Copies of said notice, to be furnished by the Regional
Director for Region 11, shall, after being signed by the Respondents' authorized rep-
resentative, be posted by them immediately upon receipt thereof, and be maintained
for a period of 60 consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken to
insure that such notices are not altered, defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within 20 days from the receipt
of the Trial Examiner's Decision, what steps they have taken to comply herewith.'°
Finally, it is recommended that the complaint be dismissed as to C. V. Fuller.
In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the woids "a
Decision and Order "
10 In the event that this Recommended Order be adopted by the Board, this provision
shall read "Notify the said Regional Director, in writing, within 10 days tram the date
of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in and activity on behalf of Textile
Workers Union of America, AFL-CIO, or in any other labor organization of
our employees, by discharging, laying off, refusing to reinstate, or in any other
manner discriminating in regard to their hire or tenure of employment, or any
term or condition of employment.
WE WILL NOT unlawfully interrogate employees concerning their union sym-
pathies, offer them rewards to implicate fellow employees in union activities, or
threaten reprisals to discourage union membership and activity.
WE WILL NOT in any other manner interfere with, restrain, or coerce employ-
ees in the exercise of rights guaranteed them by Section 7 of the National Labor
Relations Act.
WE WILL offer J. L. Johnson, R. W. Foster, James V. Shelton, Clara Mae
Farmer, Defoix Campbell, and Lee Barnett immediate and full reinstatement to
their former or substantially equivalent positions, and make them whole for any
loss of pay they may have suffered by reason of our discrimination against them.
M. LOWENSTEIN & SONS, INC.
AND
LYMAN PRINTING & FINISHING CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE-We will notify the above -named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1831 Nissen
Building, Winston-Salem, North Carolina, Telephone No. 724 -8356, if they have any
question concerning this notice or compliance with its provisions.
Newspaper Guild of New York, Local 3, American Newspaper
Guild , AFL-CIO and The New York Times Company
New York Mailers' Union Number Six, International Typo-
graphical Union , AFL-CIO and The New York Times Com-
pany. Cases Nos. 2-CD-309-1 and 2-CD-309-2. December 30,
1961,
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National
Labor Relations Act, Series 8, as amended, following charges filed
on August 26, 1964, by the Employer, The New York Times Com-
pany, alleging the Newspaper Guild of New York, Local 3, Amer-
ican Newspaper Guild, AFL-CIO, and New York Mailers' Union
Number Six, International Typographical Union, AFL-CIO (herein
called Guild and Mailers, respectively), have violated Section 8(b)
(4) (D) of the Act. A duly scheduled hearing was held before Hear-
ing Officer Jacques Schurre on September 29 and October 1, 6, 7,
and 8, 1964. All parties appearing were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to adduce evi-
dence bearing on the issues. The rulings made at the hearings are
free from prejudicial error and are hereby affirmed. Briefs were
filed by the Employer, and by the Guild and the Mailers who
appeared at the hearing as parties to the dispute.
Upon the entire record in the case, the Board 1 makes the following
findings :
1. THE BUSINESS OF THE EMPLOYER
The Employer is the publisher of The New York Times news-
paper. Its papers are sold both within and without the State of New
York. Its gross revenues during the past year were in excess of
$1,000,000. Accordingly, we find that the Employer is engaged
in commerce within the meaning of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction herein.
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Panning, Brown,
and Jenkins].
150 NLRB No. 68.