Peter Freund Knitting Mills

National Labor Relations Board - Board Decisions

Mar 29, 1945

61 N.L.R.B. 118 (N.L.R.B. 1945)

In the Matter Of PETER FREUND, DOING BUSINESS UNDER THE TRADE
NAME AND STYLE OF PETER FREUND KNITTING MILLS, AND PETER
FREUND AND ELIZABETH FREUND, CO-PARTNERS DOING BUSINESS UN-
DER THE TRADE NAME AND STYLE OF PETER FREUND KNITTING MILLS
and TEXTILE WORKERS UNION OF AMERICA, C. I. O.
Case No. 2-C-5397.Decided March 29, 1945
Mr. David H. Werther, for the Board.
Rothstein d Korzenik, by Mr. Harold Korzenik, of New York City,
and Levenson '& Levenson, by Mr. A. D. Levenson, of Union City, N. J.,
for the respondent.
Isserman, Isserman dl Kapelsohn, by Mr. Morris Issergnam, of New-
ark, N. J., and Mr. Jack Mermell, of Union City, N. J., for the Union.
Mr. Louis R. Mercado, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed on June 3, 1944, by Textile
Workers Union of America, C. I. 0., herein called the Union, the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Second Region (New York City), issued
its complaint dated June 5, 1944, against Peter Freund and Elizabeth
Freund, co-partners doing business under the trade name and style
of Peter Freund Knitting Mills, herein jointly called the respondent,?
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of
'During the course of the hearing, the complaint was orally amended by the Board,
with the consent of the respondent , to allege that the business of the respondent was
conducted from on or about the year 1918 to January 1, 1944, by the respondent, Peter
Freund, as sole proprietor , and that on the latter date, the respondents , Peter Freund and
Elizabeth Freund, co-partners doing business under the trade name and style of Peter
Freund Knitting Mills, succeeded to and have since carried on the said business. The
captions to the pleadings , as well as the pleadings themselves , were similarly amended
to conform to these allegations . The individual respondent, Peter Freund , and the re-
spondents named as the co-partnership will hereinafter be referred to jointly as the
respondent , and the neuter pronoun will be used in referring to the respondent , except
where the context otherwise requires.
61 N. L. R. B., No. 13.
118
PETER FREUND KNITTING MILLS 119
Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the
complaint together with Notice of Hearing thereon, were duly served
upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged,
in substance, that the respondent: (1) on or about December 9, 1943,
laid off and thereafter, on or about January 11, 1944, discharged
Pioter Pilot,2 and thereafter refused to reinstate him because he joined
or assisted the Union or engaged in other concerted activities for the
purposes of collective bargaining or other mutual aid or protection,
thereby discriminating in regard to the hire and tenure of employment
of said Pioter Pilot and discouraging membership in the Union ; and
(2) by the foregoing conduct and, since on or about July 15, 1943, by
vilifying, disparaging and expressing disapproval of the Union, by
interrogating employees concerning their union affiliations, by urging,
persuading, and warning employees to refrain from assisting, becom-
ing or remaining members of the Union, by threatening employees
with discharge or other reprisals if they joined or assisted the Union,
and by keeping under- observation and surveillance the meeting places,
meetings and activities of the Union or the concerted activities of
the employees for the purpose of self-organization, has interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
The respondent's answer, filed on June 15, 1944, admits the allega-
tions in the complaint with reference to the nature and extent of its
business, as well as its operation in interstate commerce, denies the
commission of any unfair labor practices, admits that Pioter Pilot
was laid off on or about December 9, 1943, and was not employed by
the respondent at any time thereafter, but affirmatively avers that the
said Pioter Pilot, "by his own acts and conduct, severed his employ-
ment" and has since been gainfully employed "otherwise than with
respondents."
Pursuant to due notice, a hearing was held at Jersey City, New
Jersey, from June 19 to and including June 24, 1944, before Irving
Rogosin, the Trial Examiner duly designated by the Chief Trial
Examiner. The Board and the respondent were represented by coun-
sel; the Union, by counsel and a union representative. All parties
participated in the, hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues. On June 13, 1944, the respondent
filed a motion for a bill of particulars. The motion was granted in
part and a bill of particulars and supplemental bill of particulars
were furnished to the respondent prior to the hearing. At the com-
2 Also referred to in the record as Peter Pilot.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mencement of the hearing, the Board further supplemented its bill
of particulars by orally furnishing the respondent, on the record,
with sundry dates on or about which the alleged unfair labor practices
were committed. At the, close of the hearing, the Trial Examiner
granted motions by counsel for the Board and the respondent to con-
form the pleadings to the evidence adduced with respect to formal
matters. During. the course of the hearing, rulings were made by the
Trial Examiner on various motions and on objections to the admission
of evidence. The Board has reviewed all the rulings of the Trial
Examiner and finds that no prejudicial error was committed. The
rulings are hereby affirmed.
On September 26, 1944, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties, in which
he found that the respondent had engaged in and was engaging in-
unfair labor practices affecting commerce within the meaning of
Section 8 (1) and Section 2 (6) and (7) of the Act, and recommended
that the respondent cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act. He further
found that the respondent had not discriminated against Pioter Pilot
and had not engaged in certain other unfair labor practices, and
recommended that the complaint be dismissed in these respects.
Thereafter, counsel for the Board, the Union, and the respondent filed
exceptions to the Intermediate Report and supporting briefs. Oral
argument , in which the respondent and the Union participated, was
had before the Board at Washington, D. C., on February 6, 1945.
The Board has considered the exceptions and briefs of the parties and,
insofar as the exceptions are inconsistent with the findings of fact,
conclusions of law, and order set forth below, finds them to be without
merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Peter Freund, an individual doing business under the trade name and
style of Peter Freund Knitting Mills, was engaged from about 1918
to January 1, 1944, in the manufacture, sale, and distribution of
sweaters, mufflers, infants' blankets, and other related knitted and
woven products. On January 1, 1944, Peter Freund and Elizabeth
Freund, co-partners doing business under the trade name and style of
Peter Freund Knitting Mills, succeeded to the business formerly con-
ducted by the said Peter Freund as a sole proprietorship. There was
no change in the business, management, personnel, or labor policies
PETER FREUND` KNITTING MILLS 121
as a result of this change in ownership; Peter Freund,3 the active
manager of the individual proprietorship, continued as active man-
ager of the co-partnership. Thus the change in structure from an
individual proprietorship to a partnership resulted in no change in the
employer-employee relationship. Under these circumstances, we find
that, for the purposes of effectuating the policies of the Act, the re-
spondent Peter Freund as an individual proprietor and the respond-
ents Peter Freund and Elizabeth Freund as co-partners, are jointly and
severally liable for the unfair labor practices of both.4 -
At all times material herein, the partnership and Freund, Sr., as
an individual, have maintained their principal office and place of busi-
ness in North Bergen, in the State of New Jersey. During the year
ending May 3, 1944, the respondent in the conduct of its business pur-
chased yarns and other materials valued in excess of $250,000, of which
approximately 90 percent was purchased and shipped to said plant
from points outside the State of New Jersey. During the same period,
the respondent manufactured products valued in excess of $500,000, of
which approximately 90 percent was shipped to points outside the
State of New Jersey. The respondent concedes that it is engaged in
commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Textile Workers Union of America, affiliated with the Congress of
Industrial Organizations, is a labor organization admitting to mem-
bership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The Union initiated an organizational campaign at the respondent's
plant in July 1943. As part of the campaign, organizers distributed
handbills and solicited employees in front of the plant. Early in
October 1943, Mary Balg, forelady of the finishing department and
supervisor of the other foreladies, approached Anna Fiorenza, an em-
ployee in the finishing department, and, inquired if she was interested
in the Union. Fiorenza replied that she was not; whereupon, Balg
asked her if she thought the Union would help the employees "any."
In December 1943, about a month after Fiorenza had joined the Union,
Balg asked her, "Why didn't you come to me before you went into
the Union?" Fiorenza denied that she was a member of the Union;
whereupon Balg remarked, "Why don't you tell me the truth? I
8 Hereafter in the decision Peter Freund will be referred to as Freund , Sr, as distin-
guished from his son, Freund, Jr.
4 Cf. N. L. R. B. v. Adel Clay Products Company, 134 F. (2d) 342 (C. C. A 8 ), enf'g,
44 N. L. R. B. 386.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
always tell you the truth." On another occasion in the early part of
February 1944, Balg stated to Fiorenza that "the office only hopes
[the] girls know what [they] are doing." She then asked her how
they [the employees] "would feel if [they] built up a plant the way
Mr. Freund did, and then loses ( sic) it." Fiorenza replied that she
did not think Freund would lose the plant, and added, "I don't think
it would harm any if the Union would come in." Balg remarked that
the employees "had no idea what it would do." We find that implicit
in Balg's statements was the threat that the employees would lose their
jobs if the Union would come in because Freund would then be forced
to close the plant. On still another occasion Balg told Fiorenza that
"a few of the girls came back with their [Union] cards, saying that
they were sorry they signed, and . . . [that Plant Superintendent]
Vargish was trying to get them out." We find that this statement re-
ferred to the efforts of Balg and Vargish, who was Freund, Sr.'s son-
in-law, to induce employees to withdraw from the Union and was in-
tended to, and did, indicate the success with which their efforts had
met.5
On Friday, January 7, 1944, about a dozen weavers, including Ka-
minski , Purzel, and a few girls employed in another department, at-
tended a union meeting. During the morning or afternoon of the next
regular work day following the meeting, Foreman Haschke came over
to Purzel and remarked, "You was at a meeting Friday?" Purzel
replied "Yes . . . Why?" Haschke then stated that "the boss" had
told him so and that he [the boss] knew the identity of everyone who
had been at the meeting.' In the latter part of February 1944 when
Kaminski "started on full warps on Pilot's looms," Haschke told him,
"You know, Kaminski, . . . boss told me before Union is going to be in
his shop he going to close the shop." 7
The respondent contends that it is not responsible for the statements
of Balg and Haschke because they were not supervisory employees.
Like the Trial Examiner, we find no merit in this contention. The
record shows that Balg was the forelady of the Merrow department.
Freund, Sr., admitted that she was the "supervisor" of the rest of the
foreladies of the plant; that she assigned the work to the employees
under her and reported on their fitness and efficiency; that she had
5 The findings with respect to the conversations with Fiorenza, related above, are based
on the credible and uncontradicted testimony of Fiorenza , who was also credited by the
Trial Examiner . Balg did not testify. We , like the Trial Examiner , find no merit in
the respondent ' s contention that Fiorenza's credibility has been impeached by the fact
that she was discharged for having her time card punched by another employee and for
having refused to instruct new employees
a The findings with respect to this conversation are based on the credible testimony
of Walter Purzel . While Haschke denied having made the statements attributed to him
by Purzel , the Trial Examiner who heard and observed the witnesses , did not credit
Haschke's denials ; nor do we.
7 This finding is based on the credible and uncontradicted testimony of Kaminski who
was also credited by the Trial Examiner.
PETER FREUND KNITTING MILLS 123
authority to recommend employees for hire, discharge , and pay in-
creases ; and that her recommendations in these respects were acted
Upon .8 Freund, Sr ., testified that Haschke was foreman of the whole
weaving department in which there were approximately 10 weavers ;
that he was in charge of production in that department ; that he had
authority to recommend discharges ; and that his recommendations
were given weight by the respondent . Haschke testified that in the
absence of both Freunds , he was in full charge of the weaving depart-
ment. Freund, Jr., testified that, as a matter of policy, he avoided
talking directly with the employees of the weaving department but
would give his instructions and work orders to Haschke , who put them
into effect . When lay-offs were necessitated by reason of the comple-
tion of contracts or other causes , Freund, Jr., would consult Haschke
a few days before the contemplated reduction , decide what steps were
to be taken , and leave the decision to be put into effect by Haschke.
Haschke testified that it was his duty to see that all the work in the
weaving department was properly performed and to adjust any pro-
duction problems . He further testified that inspectors would inform
him if the work was not properly performed , in which event he would
take the matter up directly with the weaver concerned and caution him
to be more careful . Haschke performed substantially the same duties
throughout his 17 years of employment with the respondent.
We find that the respondent is liable for the statements and activ-
ities of Balg and Haschke because they are supervisory employees and
because they were held out by the respondent to the employees, and
reasonably regarded by them, as representatives of management. We
find further that by the statements and activities of Balg and
Haschke, as hereinabove set forth , the respondent interfered with,
restrained , and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
The respondent uses personnel cards in connection with its Social
Security records. These cards contain the printed question concern-
ing the employee's union membership . Freund, Sr., testified that the,
office employees were instructed to keep these cards for each employee
and to obtain as much of the called for data as possible . The prac-
tice seems to be to call an employee into the office after he has been
employed a week or two and at that time to enter as much informa-
tion as possible on the card . The Trial Examiner found that since
these were stock cards and since only one of the five introduced into
evidence contained an answer to the question of "Union Affiliation,"
8 Freund , Sr , testified on direct examination that he gave "great weight" to Balg's rec-
ommendations On cross-examination , under leading and suggestive questions by the re-
spondent ' s counsel , Freund, Sr., attempted to minimize Balg's authority and duties , stating
that he gave no greater weight to Balg ' s recommendations than to the suggestions of
strangers . We, like the Trial Examiner , reject the respondent 's contention that it gave
no greater weight to Balg's recommendations than to those of any ordinary employee.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent did not violate the Act by interrogating its employees
as to their union affiliation. We do not agree. These cards, which the
respondent maintained as records in the regular course of its business,
contained a question concerning the employee's union affiliation, a mat-
ter which should be of no concern to the employer. The most that
may be inferred from the fact that on four of the five cards in evi-
dence the information relating to union affiliation is blank, is that the
answer to this question was not compulsory. However, it does not
appear that the employees were told that they did not have to answer
this question. And one of the cards in evidence does contain the
answer " `no" to this question. We believe that a refusal to supply.an
answer to this question might create the inference that the employee
is a member of a union and that the inquiry itself deters concerted
activity by employees whether or not an answer to this question is
supplied. We find that by the use of the question, on the personnel
cards , concerning the employee's union affiliation, the respondent has
interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.9
B. Alleged interference, restraint, and coercion
Shortly after the Union"initiated its organizational campaign at the
respondent's plant, Freund, Sr., observed the distribution of leaflets
in front of the plant and on two occasions telephoned to the local
police to determine whether a permit had been issued for that purpose.
On the latter occasion, he was informed that the permit had been
granted. Although it may be inferred from what transpired that
Freund, Sr., disapproved of the distribution of the literature, he did
nothing to interfere with or hinder its distribution. We find, as did
the Trial Examiner, that the respondent did not interfere with, re-
strain, or coerce his employees with respect to the distribution of union
literature at his plant.
Otto Gedon, an employee in the weaving department, testified that
on the Monday following the union meeting of January 7, 1944, Fore-
man Haschke told him that he knew Gedon had been at the meeting.
Gedon acknowledged that he had and then remarked, "I pay
6 See Matter of D. W. Onan t Sons, 50 N. L R. B. 195, enf 'd 139 F. ( 2d) 728 ( C C A. 8),
where the Board found violative of the Act the use of a question , in an application blank,
concerning membership in any organization , lodge, or society despite the company's con-
tention that the Navy Department had suggested the procuring of such information from
applicants and despite the fact that it had eliminated the question after a Board Field
Examiner had commented on its impropriety ; Matter of Spalek Engineering Co., 45
N. L. R. B. 1272 , 1275, where the Board found a violation of Section 8 (1) in the use
of such a question on an application form despite the company 's contention that the appli-
cations were in standard form, purchasable from any stationer , and had been used by
the company long before the commencement of union activities . See, also, Texarkana
Bus Co. v. N L. R. B , 119 F. ( 2d) 480 ( C. C. A. 8 ) ( inquiry appears on application blank) ;
Dannen Gratin cE Milling Co. v. N. L. R. B., 130 F. (2d) 321, 323 ( C. C A. 8 ) ( inquiry
appears on application blank ) ; and P . H. Glatfelter Co. v. N . L. R. B., 141 F. (2d) 631
( C. C. A. 3 ), and cases therein cited ( inquiry was made orally).
PETER FREUND KNITTING MILLS 125
my ... dues, and I go in the saloon and drink a couple of beers,
and I go home." Haschke then stated, according to Gedon, "Mr.
Freund doesn't like that." Haschke, who fixed the day of this con-
versation as Saturday, testified that as he passed Gedon at his loom,
he smelled an odor of alcohol and observed that Gedon was "kind of
red in the face." Haschke had known Gedon for 30 years. Address-
ing him familiarly as "Otsch," he inquired, "Where was you?" Gedon
replied, "I was to a meeting and had a couple of beers and then went
home." Haschke continued, "Otsch . . . Don't come in drunk. The
boss does not like that." In his testimony Haschke explained that
it was Gedon's drinking that he referred to in stating that Freund,
Sr., objected, and not to Gedon's attendance at the union meeting.
Haschke denied that Freund, Sr., had ever told him that he objected
to the employees attending union meetings. Although there is no
indication that Gedon was actually under the influence of liquor on
this occasion, Gedon himself admitted that his drinking had been
the subject of some comment on previous occasions, even though it
had been referred to by both Haschke and- Gedon in a somewhat-
jocular vein. Like the Trial Examiner, we find that the statement
attributed to Haschke was ambiguous, that it was equally susceptible
of the meaning which Haschke claimed he intended, and that it was
insufficient to warrant a finding that it constitutes interference,
restraint, or coercion, within the meaning of the Act.
Mermell, the union organizer, testified to an incident allegedly
involving Superintendent Vargish, the son-in-law of Freund, Sr.
Mermell testified that while he was distributing leaflets in front of
the plant, a man came up to him and made disparaging remarks in
the presence of employees entering the plant. Mermell did not know
the identity of the man and his only information that the person was
Vargish came from an unidentified person entering the building. -We
conclude, as did the Trial Examiner, that, since Vargish was insuffi-
ciently identified as the person alleged to have made the statements,
no finding can be based on the incident.
Mermell further testified that on an occasion when he was distrib-
uting leaflets in front of the plant, Freund, Sr.'s minor son, of high
school age, took a leaflet and entered the plant. Sometime later the
boy emerged from the plant, and made disparaging and vulgar re-
marks to Mermell. We find, like the Trial Examiner, that, under the
circumstances disclosed, the evidence does not warrant a finding of
unlawful intereference by the respondent.
C. The alleged discriminatory treatment of Pioter Pilot
Pilot had been employed by the respondent as a weaver since 1929.
He could operate both Jacquard and shaft looms and his workman-
639673-45-vol. 61-10
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship and efficiency were not questioned. He joined the Union in July
1943, and was elected shop steward in September or October. He dis-
cussed the Union with other employees after he joined, attended the
union meetings regularly, and frequently "spoke from the floor."
His activities on behalf of the Union were otherwise unexceptional.
Pilot testified that "a cople of months . . . or a couple of weeks"
after he joined the Union, he had a conversation with Freund, Sr., in
the washroom of the plant. According to Pilot, Freund, Sr., told him
that he was surprised at what Pilot had been saying about him, that he
had intended to send for Pilot, and asked him to come to his office.
Upon his arrival at the office, according to Pilot, Freund, Sr., asked
him if he had joined the Union. Pilot answered in the affirmative and
asked if there, was "Anything wrong?" Pilot further testified that
Freund, Sr., made no response to his question but remarked that a
mechanic had been "making trouble," that he had told the mechanic
to stop talking about the Union, that the mechanic continued to talk
about the Union, and that he would have to do something with the
mechanic. On cross-examination, Pilot acknowledged that when he
first arrived at Freund, Sr.'s office, they had an extended conversation
relating solely to Pilot's health, in which they discussed X-ray plates
which Pilot had brought to the office 10 and a contemplated operation
on his sinus which would require a 2 to 3 weeks' absence from the plant.
Pilot explained that he forgot about the first part of the conversation
on direct examination and that the discussion concerning union mat-
ters occurred after their conversation relating to his health. Freund,
Sr., denied having had any conversation with Pilot in the washroom.
He also denied that part of the conversation in his office relating to
union matters but admitted the remainder of the conversation relating
to Pilot's health. Freund, Sr., testified that Pilot had spoken to him
as he passed Pilot's loom and asked him if he could discuss his sinus
condition with him. The Trial Examiner, who had the opportunity
to hear and observe the witnesses, credited Freund, Sr., over Pilot, and
we do likewise.
Pilot also' testified that sometime early in October he observed
Freund, Sr., looking out of the plant window while he and Union Or-
ganizer Mermell were talking on the sidewalk in front of the plant;
that Pilot then drove off with Mermell in the latter's car to visit the
home of employee Bruno at Cliffside for the purpose of discussing
some union matters with her; that they drove by a circuitous route
in order to give Bruno time to get home, consuming 45 minutes in what
was normally a 10-minute drive; that Mermell went into Bruno's house
"Pilot admitted on cross-examination that he intended to discuss the x-rays and an
operation on his sinus with Freund, Sr, and that before going to the office he went to
his looms, where he had kept the x-rays, and took them with him to Freund, Sr 's, office.
PETER FREUND KNITTING MILLS 127
while Pilot preferred to wait outside "unless invited in"; that after
waiting about an hour, he observed a car drive by on two occasions;
and that he recognized the driver and the sole occupant of the car as
Freund, Sr., with whom he exchanged glances. It appears from Pilot's
testimony that the alleged incident occurred at dusk, although the
street lights had not been turned on at the time. Freund, Sr., cate-
gorically denied that he observed Mermell and Pilot in front of the
plant or that he was even in the vicinity of Bruno's home. The Trial
Examiner credited Freund, Sr.'s denials. It appears improbable that
Freund, Sr., could have left his office, secured his car, and followed
Mermell's car for 45 minutes when he could not have known of Mer-
mell's destination in advance. Also, Pilot's identification at dusk of
the driver of the car as being Freund, Sr., is highly questionable. Like
the Trial Examiner, we do not credit Pilot's testimony set forth above,
and accept Freund, Sr.'s denials.
Pilot testified that-the morning after the Cliffside incident, he was
laid off due to the lack of quills but was told to report for work the
next day, at which time he was assigned to the shaft looms of Mar-
zotta, a weaver who was ill. Pilot asked Haschke for warps for his
regular Jacquard looms, but Haschke replied, "I don't know yet."
According to Pilot, Kaminski was the only other weaver on shaft
looms, and while Pilot was working the shaft looms, the other weavers
secured "new" work and got warp for their Jacquard looms. Pilot
testified that he worked on the shaft looms 8 days; however, the re-
spondent's records show that he worked on the shaft looms 14 days
during the period from November 17 to December 9. Upon Marzotta's
return on December 9, Pilot was laid off. Pilot complained to Haschke
that other weavers were getting warp and orders for their Jacquard
looms and asked why he could not get warp. Haschke referred Pilot
to Freund, Jr., who assured Pilot that he had no work for him then
but would recall him when warp and orders were available. Pilot
left the plant without taking his tools and personal effects, and there-
after did not return to work. Pilot admitted that he had been laid off
on previous occasions, when yarn and orders were unavailable, without
regard to his seniority, but contended that it was "never for an
extended period."
The respondent adduced evidence to the effect that on November
19, 1943, it had exhausted its supply of yarn and was without orders
for the Jacquard looms customarily operated by Pilot; that it there-
upon transferred Pilot to shaft looms regularly assigned to Marzotta,
another weaver who was absent due to illness, in what respondent's
officials contended was a routine transfer; that upon Marzotta's return
on December 9, the respondent was still without yarn or orders for
Pilot's regular looms; and that it thereupon laid Pilot off, as it had
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
done on previous occasions under similar circumstances. Freund, Sr.,
testified that the respondent had absolutely no seniority policy with
respect to temporary lay-offs of weavers when yarn or orders for a
weaver's looms were exhausted.
Pilot testified that, on the first date after December 9, when he
returned for his pay, he asked Freund, Sr., "How I am standing? [sic]
It looks to me like I kick off already or I going be kicked off." When
Freund, Sr., asked him what he was talking about, Pilot continued,
"I want find out and ask you how I am standing. All weavers, all
them in the shop, they get jobs; they got warps; they got fillings; they
got order. My warp lay on floor, supposed to be put on my machine;
nobody put on my machine. They promised to me, Goschinski
['s looms], to run Jacquards; nobody give to me." According to Pilot,
Freund, Sr., told him that the respondent had no work, and made no
reply to Pilot's complaint that most weavers with less seniority than
he were working. Pilot then asked Freund, Sr:, how he was "stand-
ing" and if he were fired; Freund, Sr., told him that he was not fired
and asked Pilot to suggest what should be done with him. According
to Pilot, Freund, Sr., then remarked, "You be surprised how many
people come to me and tell me about you, what you are talking about
union." Pilot testified that Freund, Sr., then told him that as soon
as orders and warp became available, he would be recalled.
Both Freunds testified that they intended to'recall Pilot when yarn
and orders became available. Freund, Sr., admitted having a con-
versation with Pilot upon his return for his pay check, but denied the
substance of the conversation testified to by Pilot. Freund, Sr., testi-
fied that Pilot had asked what the outlook was for him and that
Freund, Sr., had told him that he would reemploy him when yarn and
orders became available. The Trial Examiner credited Freund, Sr.'s
version as being more plausible, and so do we.
Five days after his lay-off on December 9, Pilot took employment
with another weaving firm, and received two pay checks from this
firm during December. At the time of the hearing he was still em-
ployed there..
Freund, Sr., testified that in the latter part of December several
employees had advised him that Pilot had taken employment else-
where. To ascertain the truth of this report, Freund, Sr., directed
his son on January 7 to send a post card to Pilot, asking him to call at
the plant office; this, Freund, Jr,, did. When no response was received
from Pilot, Freund, Sr., called at Pilot's home on January 10 to ascer-
tain if he was employed elsewhere. A note on the door of Pilot's home
directed callers to an adjacent store, where Freund, Sr., was advised
that Pilot was employed. Freund, Sr., thereupon returned to the
plant and directed his son to return Pilot's belongings and to advise
PETER FREUND KNITTING MILLS 129
him by letter that his services with the respondent were terminated.
Freund, Jr., did as he was directed.
Pilot testified that shortly thereafter he returned to the plant and
told Freund, Jr., that he was there in response to the post card; that
Freund, Jr., thereupon said that he was going to fire him, to which
Pilot replied, "Looks to me like revenge, only because I am belonging
to a union"; that Pilot threatened to take the case to the "Labor
Board"; and that he then left the plant and did not return. Freund,
Jr., admitted that a conversation took place when Pilot returned to
the plant upon receipt of the letter of discharge. He testified that
Pilot had asked about the meaning of the letter of January 10; that
he told Pilot it was self-explanatory; and that he made no response
to Pilot's threat to take the case to the Labor Board. He denied the
other statements to which Pilot testified. The Trial Examiner
credited Freund, Jr., and so, do we.
The Trial Examiner found that there was no substantial evidence
supporting the allegation that the respondent discriminated against
Pilot in regard to the hire, tenure, or other terms or conditions of
his employment. We agree. The respondent did not have a uniform
system of laying off weavers on the basis of seniority. The record
shows that Pilot's lay-off was not unusual. He had been laid off on
previous occasions due to lack of orders or yarn and had always been
recalled. Moreover, the respondent did not increase its staff of 10
weavers during the entire period subsequent to Pilot's lay-off, although
the respondent increased its work week from 40 hours to 48 hours
pursuant to the request of the War Manpower Commission., Further-
more, it appears that Pilot's looms were not operated until late in
January.
Like the Trial Examiner, we find that the respondent did not dis-
criminate against Pilot in the matter of his lay-off. We find further
that by taking employment elsewhere 5 days after his lay-off, contrary
to the past practice not to take employment elsewhere during a tem-
porary lay-off, and by failing to notify the respondent of that fact
despite his knowledge that the respondent would thereby be incon-
venienced in its future production schedules, Pilot voluntarily severed
his employment relation with the respondent. Upon the entire record,
we find that the respondent did not discriminate against Pilot with
respect to the hire, tenure, or other terms or conditions of his
employment.
IF. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III A, above,
occurring in connection with the operations of the respondent de-
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scribed 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
0
Having found that the respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.
We have found that the respondent's use of the question, on its
personnel cards, concerning the employee's union affiliation is viola-
tive of the Act. We shall, accordingly, order the respondent to delete
this question from the personnel cards.
Upon the basis of the foregoing findings of fact and the entire.
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Textile Workers Union of America, affiliated with the Congress
of Industrial Organizations, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise 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 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, (6) and (7) of
the Act.
4. The respondent has not interfered with, restrained, or coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act by keeping under observation and surveillance the meeting places,
meetings and activities of its employees.
5. The respondent has not discriminated against Pioter Pilot, in
regard to his hire, tenure or terms or conditions of employment,
thereby discouraging membership in the Union.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent
Peter Freund, doing business under the trade name and style of Peter
Freund Knitting Mills, and the respondents Peter Freund and Eliza-
beth Freund, copartners, doing business under the trade name and
PETER FREUND KNITTING MILLS 131
style of Peter Freund Knitting Mills, and their agents , successors, and
assigns, shall:
1. Cease and desist from in any manner interfering with, restrain-
mg, 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 , affiliated with the Congress of Industrial
Organizations, or any other labor organization, to bargain collectively
through representatives of their own choosing , and to engage in con-
certed activities, for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Delete from the personnel cards the question concerning the
employee's union affiliation;
(b) Post at its plant at North Bergen, New Jersey, copies of the
notice attached hereto, marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director of the Second Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon the receipt thereof, and main-
tained by it 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 respondent to insure
that said notices are not altered , defaced, or covered by any other
material; and
(c) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint , insofar as it alleges that
the respondent kept under observation and surveillance the meeting
places, meetings and activities of its employees in violation of Section
8 (1) of the Act, and discriminated against Pioter Pilot in violation
of Section 8 (3), be, .and it hereby is, dismissed.
APPENDIX A
NOTICE TO' ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not in any manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form
labor organizations , to join or assist Textile Workers Union of Amer-
ica, affiliated with the Congress of Industrial Organizations, or any
other labor organization , to bargain collectively through representa-
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection. All our employees are free to become or remain members
of this union, or any other labor organization.
We will delete from our personnel cards the question concerning
the employee's union affiliation. ,
PETER FREUND KNITTING MILLS
Employer
Dated ---------------- By -----------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must-not be altered, defaced, or covered by any other material.