Talon, Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1968

170 N.L.R.B. 355 (N.L.R.B. 1968)

TALON, INC. 355
Talon , Inc. andInternational Ladies' Garment Work-
ers' Union , AFL-CIO. Case 1-CA-6009
March 14, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 27, 1967, Trial Examiner William
Seagle issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent filed exceptions to
the Decision, the General Counsel filed a brief in
support of the Trial Examiner's Decision, and the
Charging Party filed a brief in answer to Respond-
ent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision , the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions,' and recommenda-
tions of the Trial Examiner.
order to discourage union activity among its employees . We do so for the
following reasons:
Mrs. Femck's solicitation of Susan Smith and Janet Delnero only took 2
to 3 minutes and in no way interfered with their productive efficiency or
the cleanup of their machines. Yet, Respondent summarily fired Ferrick on
the basis of hearsay without giving her an opportunity to defend herself or
without first giving her a warning. Further, no one else had ever been
discharged for soliciting and employees were permitted by management to
solicit freely for organizations known as the Sunshine Club, Stanley Home
Products, Avon Products, Christmas collections for the purpose of buying
Christmas gifts for supervisors , and, the authorization , just about 2 weeks
before the discharge of solicitations in connection with the operations of a
numbers pool , although gambling was prohibited , even during nonworking
time In many cases such solicitation was engaged in without employees
first having obtained permission as the no-solicitation rule required,
nevertheless , Respondent neither put a stop to the activities , nor repri-
manded employees for failing to obtain permission
On the basis of the foregoing and the record in its entirety, we find the
purpose of the Respondent in discharging Ferrick was not to maintain the
efficiency of production or discipline, but to use Mrs. Ferrick's asserted
violation of its no-solicitation rule as a pretext to mask its real purpose to
discourage and stop union activity in its plant
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM SEAGLE, Trial Examiner: Upon a charge
filed on July 13, 1967, and a complaint issued
thereon on August 18, 1967, by the Regional
Director for Region 1, in which it was alleged that
the Respondent had violated Section 8(a)(3) and
(1) of the Act, a hearing was held with respect to
the issues raised by the pleadings at Springfield,
Massachusetts, on October 16, 1967.
Subsequent to the hearing, counsel for the
General Counsel and for the Charging Party filed
briefs, which have been duly considered.
Upon the record so made, and, in view of my ob-
servation of the demeanor of the witnesses, I
hereby make the following findings of fact:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Talon, Inc., Springfield, Massachusetts, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified:
Amend the last phrase in the fourth indented
paragraph of the notice attached to the Trial Ex-
aminer's Decision to read: "... and make her
whole for any loss of pay she may have suffered by
reason of the discrimination practiced against her."
' We adopt the Trial Examiner's conclusion that Respondent violated
Section 8(a)( 1) and (3) of the Act by discriminatorily discharging Blanche
Ferrick because she had solicited fellow employees to join or support the
Union, and, further, additionally violated Section 8(a)(1) of the Act by ap-
plying discriminatorily a rule against solicitation during working hours in
170 NLRB No. 42
1. THE RESPONDENT
The Respondent, which is a Pennsylvania cor-
poration, and which is engaged in the manufacture,
sale, and distribution of cloth and related products,
maintains some 14 or 15 plants in New England
and the Southern States. However, the only plant of
the Respondent involved in the present proceeding
is its plant 18' at 215 Baldwin Street, in the city of
West Springfield, Commonwealth of Massacllisetts.
The West Springfield plant has approximately 90
employees, and it is operated in three 8-hour shifts.
The first shift runs from 7 a.m. to 3 p.m. and is
under the foremanship of James Murphy; the
second shift runs from 3 p.m. to 11 p.m. and is
under the foremanship of William Peetz; and the
third shift runs from 11 p.m. to 7 a.m. the following
morning and is under the foremanship of Edward
Langlois. The general manager of the Springfield
plant since its inception in 1964 has been Steven J.
Wiskoski.
' The plants of the Respondent are not numbered consecutively.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the course and conduct of its business opera-
tions, the Respondent annually receives and ships
products across State lines, and these products have
a value of $50,000 in a 1-year period.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union,
AFL-CIO, is a labor organization that has sought to
organize employees of the Respondent.
III. THE UNFAIR LABOR PRACTICE
The sole question in the present case is whether
the Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Blanche Ferrick ,2 one of its
employees , for violating an alleged plant rule
prohibiting solicitations during working hours
without special permission from management. The
plant rules offered in justification of her discharge
were preceded by a preamble which read as fol-
lows: "It is , of course , not possible to list in detail
everything that employees should or should not do
under all circumstances . Employees are expected at
all times to conduct themselves in a reasonable
manner and to perform their jobs efficiently . In line
with this general requirement, the following are ex-
amples of misconduct which will not be tolerated."
(Emphasis supplied .) This preamble was followed
by 18 numbered rules , of which rule 6 read as fol-
lows: "Solicitations , collection of funds , pledges,
subscriptions , circulation of petitions , memberships
or other similar activities during working hours
without special permission of management.'
Mrs. Ferrick was hired by the Respondent on Au-
gust 8 , 1966, and the last day that she worked for
the Respondent was July 6 , 1967. At the time of
her discharge she was a labeler operator on
machine 3 on the second shift from 3 to 11 p.m.
She worked on machine 3 with her daughter Bar-
bara . On the first shift machine 3 was operated by
two girls whose names are Mildred Hill and Car-
mela Godfrey . Two other girls, Susan Smith and
Janet Delnero , who were involved in the incidents
leading to Mrs . Ferrick 's dischaige , worked on
machine 6.
To understand the significance of the events of
July 6 it is necessary to know that the last 15
minutes of a shift , although regarded as part of
working time , were not devoted to production. The
employees on the particular shift spent the time
cleaning their machines and tid ying themselves be-
fore leaving the plant , the last M mites of the 15-
minute period being devoted usually to this per-
sonal cleanup .3 During the same 15 -minute period,
the employees on the next shift would begin coming
into the plant and getting ready for work before the
buzzer sounded, which signaled the commencement
of the shift.
I shall first relate the events of the afternoon of
July 6 as they were testified to by Mrs. Ferrick. She
left her home with her daughter Barbara about 18
minutes to 3. They first went to pick up another
employee by the name of Linola LaMont, and at 10
or 11 minutes to 3 the party arrived at the plant.
Mrs. Ferrick, after punching the timeclock,
discovered that she had left her cigarettes on the
kitchen table at home. She handed her bag of tools
to her daughter, Barbara, and left the plant to get
cigarettes, while Barbara and LaMont proceeded to
the lounge of the plant. Mrs. Ferrick returned to
the plant through the back door, and half way down
an aisle she crossed over, as she usually did,
between machines 4 and 5. As she walked by Susan
Smith, who was not working, the latter grabbed
Mrs. Ferrick's arm and asked whether she had
heard the news about Loretta Bushney, one of the
employees who had had a heart attack during the
shift and who had been carried out of the plant on a
stretcher to a waiting ambulance.
Having thus entered into conversation with Susan
Smith, Mrs. Ferrick asked the latter whether she
had received a card or a letter from the Union.
When Susam Smith replied to this question in the
affirmative, Mrs. Ferrick asked her what she
thought of the Union. Susan Smith shrugged her
shoulders and wondered how the Union had ob-
tained their names . During this conversation, Janet
Delnero, the other girl who worked on machine 6,
was engaged in brushing a few labels on the bottom
of her machine. When Mrs. Ferrick asked Janet
Delnero what she thought of the Union, the latter
made a gesture indicating that she thought that the
Union was no good. Mrs. Ferrick then remarked
that she just had time enought to get a cup of cof-
fee, and left the two girls. At no time during Mrs.
Ferrick's conversations with them were they
operating their machines.
After leaving Susan Smith and Janet Delnero,
Mrs. Ferrick went to the plant lounge , where she
found Linola LaMont and her daughter Barbara.
She asked Linola what the time was, and when she
learned that she still had a minute and a half, she
asked Barbara to get her a cup of coffee, which
Barbara obtained for her mother. While she was
drinking her coffee Mrs. Ferrick called out to Shir-
ley Fragenhagen, one of the office girls: "Hey, Shir-
ley, do you want to join the union?" Shirley
responded by asking: "Oh, are we having a union?"
"Haven't you heard?" said Mrs. Ferrick. "We are
forming a men's union . Haven't you heard we are
looking for a man." These sallies caused general
laughter among the girls in the lounge. The buzzer
then sounded, and Mrs. Ferrick, picking up her cof-
2 The first n me of Mrs Ferrick seems to be spelled incorrectly in the
transcript as "Blanch "
' Counsel for the General Counsel seems to be very skeptical on this
point, and points to contradictions in the testimony of the Respondent's
witnesses concerning the 5-minute personal cleanup period The alleged
contradictions seem to represent , however, a semantic quarrel It would all
seem to depend on what the witnesses meant by a "rule " It would be more
accurate to speak in terms of the usual practice
TALON, INC. 35 7
fee, proceeded to her machine , where she found
Mildred Hill, one' of the two girls who worked on
machine 3 during the first shift, and who was
putting on her sweater . Mrs. Ferrick asked Mildred
Hill where Carmela Godfrey was , the latter being
the other girl who worked on machine 3. Mildred
replied that Carmela was around somewhere, and
Mrs. Ferrick then asked Mildred whether she had
heard anything about the Union . The latter replied
in the negative . The buzzer sounded . Mildred re-
marked "There is Carmela ," but Mrs. Ferrick said
that she would see Carmela later . Immediately,
after the buzzer sounded , Barbara joined her
mother at the machine.
About 8 a.m. the next day, which was July 7, a
Friday, Mrs. Ferrick had a telephone call from
Christine Bereli, one of the office girls , who told
her that she had a note on her desk to the effect
that she was to be taken off the payroll . Mrs. Fer-
rick asked why, and Christine Bereli replied that
she did not know why but that William Peetz, her
foreman , would get in touch with her. Mrs . Ferrick
told Christine that she could not believe that she
had been fired because only the previous day she
had asked Peetz to let her take the next day off and
he had seemed so unhappy at the prospect of her
absence that she had decided to come to work.
About 15 minutes later Mrs. Ferrick herself called
the plant and asked to speak to Wiskoski , the plant
manager . Christine Bereli got on the telephone and
told Mrs . Ferrick that Wiskoski was not in, that she
had been mistaken in telling her that Peetz would
speak to her, and that Murphy , the first-shift
.foreman , would speak to her . When Mrs. Ferrick
made another telephone call and asked for Murphy,
she was put through to Wiskoski , who told her that
the reason for her discharge was that she had ap-
proached two of the employees and asked them to
join the Union. Mrs. Ferrick denied that this was
true . She explained that she had only been joking in
talking to Shirley Fragenhagen , and that in talking
to Susan Smith and Janet Delnero she had been
merely trying to satisfy her curiosity about their at-
titudes towards the Union . Mrs. Ferrick 's explana-
tion however did not satisfy Wiskoski.
Called as a witness by the General Counsel,
Wiskoski did not deny the principal circumstances
of Mrs . Ferrick 's discharge as related by her, except
that he did not credit her denial that she had sol-
icited Susan Smith and Janet Delnero. Wiskoski
testified that Murphy called him very early the
morning of July 7-the time was between 7:05 and
7:10 a.m.-and reported to him Mrs. Ferrick's ac-
tivities in soliciting the girls to join the Union, and
he decided to discharge her. In naming the girls
who were approached by Mrs . Ferrick , Wiskoski
mentioned only Susan Smith , Janet Delnero, and
Mildred Hill, and failed to mention Shirley
Fragenhagen altogether . Although he mentioned
Mildred Hill, it is clear from his testimony that Mrs.
Ferrick was discharged only for soliciting Susan
Smith and Janet Delnero . Wiskoski confirmed in
his testimony , moreover , that Mrs. Ferrick had
been discharged over the telephone , without being
afforded a chance to tell her side of the story to
either Murphy or himself. "I had enough proof," he
testified . This "proof" at this time could have been
no more than hearsay , so far as Wiskoski was con-
cerned . Indeed , Wiskoski 's testimony concerning
the basis for his action in discharging Mrs. Ferrick
completely undermines his credit as a witness. As
an adverse witness for the General Counsel,
Wiskoski testified that Susan Smith and Janet
Delnero reported to him their solicitation by Mrs.
Ferrick . On cross-examination by his own counsel,
he testified that the two girls had reported the in-
cident to Murphy . As a witness for the Respondent,
he could do no better than to "presume" that they
had reported the incident to Murphy.
By failing to call either Shirley Fragenhagen or
Mildred Hill as witnesses , the Respondent in effect
admitted the accuracy of Mrs . Ferrick 's testimony,
so far as her encounters with them are concerned.
Moreov , the Respondent 's management seems to
have beZn quite unaware that Mrs . Ferrick had ap-
proached Shirley Fragenhagen . The Respondent
did call as witnesses , however , Susan Smith and
Janet D Inero, both of whom gave testimony con-
s iderabl at variance with that of Mrs. Ferrick.
Susan Smith could not remember whether she
reached out and grabbed Mrs. Ferrick 's arm, and
she did not think that she mentioned Loretta
Bushey's heart attack. She testified that Mrs. Fer-
rick spoke to her after her machine was no longer
operating and she was sweeping around it, and that
after Mrs. Ferrick asked her if she was for the
Union and she had replied in the negative, Mrs.
Ferrick told her that if she changed her mind she
had some extra cards.
Janet Delnero supported Susan Smith 's version of
the encounter between the latter and Mrs. Ferrick
and testified indeed that Mrs. Ferrick asked Susan
Smith to sign a union card which she had in her
pocket. So far as she herself was concerned, Janet
Delnero testified that Mrs. Ferrick said to her "how
about you . I have an extra card if you like to have it
signed" but she replied that she was perfectly
satisfied with everything. Like Susan Smith, she
also conceded that ' her machine was not operating
when Mrs. Ferrick spoke to her, and she even went
further in testifying that their conversations with
Mrs. Ferrick did not in any way interfere with their
production or the cleanup of their machines. Janet
Delnero also testified , moreover , that she did not
interpret rule 6 , the rule against solicitation, as
meaning that an employee could not talk about the
Union on working time; she based this conclusion,
however, on the assumption that it was a universal
rule in all plants that an employee could not talk
union!
Both Susan Smith and Janet Delnero denied that
they had reported their conversations with Mrs.
'358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ferrick to anyone in management but I find it dif-
ficult to credit their denials, particularly in'view of
the rapidity with which Murphy, their foreman,
learned about the conversations, and reported them
to Wiskoski. In any event, Janet Delnero admitted
specifically that she was called into Murphy's office
either on Friday, the day that Mrs. Ferrick first
learned of her discharge, or on the following Mon-
day, and that she was questioned about the conver-
sations. Inferentially, she also testified that Susan
Smith was also questioned by Murphy about them.
Apparently, Murphy was told by the girls that Mrs.
Ferrick had asked them to sign union cards, and
Wiskoski certainly proceeded on this assumption in
hastening to discharge Mrs. Ferrick. But the-
Respondent chose not to call Murphy as a witness,
and its reticence justifies the inference that this was
a phase of the case which it preferred to have
veiled in mystery for' fear that probing into it might
prove damaging.
With a single important exception, I am inclined
to credit Mrs. Ferrick's testimony concerning her
conversations with Susan Smith and Janet Delne'ro
as against the testimony of the latter, who did not
strike me as entirely reliable witnesses. The excep-
tion is that I believe Mrs. Ferrick told Susan Smith
that since she had already joined the Union, she
could use the card that she had received from the
Union and for which she now had no use.
I believe, therefore, that Mrs. Ferrick got to the
point of asking Susan Smith to sign a union
authorization card. It seems to me, however, that it
makes little difference whose testimony is credited
as to this, or as to the other details of the encoun-
ters, for it is apparent from Mrs. Ferrick's own
testimony that she did at least ask the two girls
what they thought about the Union and that if she
had received a more favorable response she would
have given them union authorization cards, which
in fact she had in her pocketbook, and asked them
to sign them. In my view, she had taken at least the
first step towards solicitation of union membership,
and if the Respondent had a valid rule against such
solicitation the rule would have been violated in
this respect even though no union authorization
cards were actually tendered to either of the two
girls.
This is, however, also an opinion upon an entirely
abstract state of affairs, for in fact I find no satisfac-
tory and credible evidence that there was any rule
against solicitation in force at the time of the
discharge of Mrs. Ferrick. The Respondent did post
on its bulletin board in 1964 plant rules governing
the conduct of employees but these rules disap-
peared from the bulletin board after some months.
In the 1964 plant rules there was contained a ban
" Christine Bereli testified that these plant rules were dated April 1965, ,
but the May 1965 plant rules in evidence as Resp. Exh . I bear no date
'The only witness who so testified was Wiskoski but I have already in-
dicated that I do not regard him as a credible witness and his testimony in
this respect is, moreover , contrary to the testimony of all the other wit-
nesses, including one of the Respondent 's own witnesses Janet Delnero did
on solicitation but discharge was threatened only
after a warning had been given and a second of-
fense occurred. These rules were succeeded in May
1965 by a new set of plant rules, which contained
the ban on solicitation previously, quoted, and for
the violation of which discharge was immediately
threatened. This set of plant rules was adopted, sig-
nificantly, immediately after an election involving
the Textile Workers of America. However, this set
of plant rules was, admittedly, removed from the
plant bulletin board by Christine Bereli , one of the
office girls whose duty it was to post notices on the
bulletin board. Shortly before Memorial Day in
1967, she removed all of the notices on the plant
bulletin board, including the plant rules, while she
was posting a notice about the Memorial Day
holiday. According to Bereli, she filed the notices.
removed by her from the bulletin board in a folder,
and, when about a week later, Wiskoski observed
that the notices had been removed from the bul-
letin board, he ordered her to put them back on the
bulletin board, and she did so. Called as a witness
by the Respondent, Wiskoski supported, Bereli's
testimony concerning the reposting of the plant
rules. But previously called as an adverse witness by
counsel for the General Counsel, Wiskoski had
testified without any qualification that. the plant
rules posted in May 1965' had "remained on the
bulletin board from May of '65 to -the present mo-
ment." I prefer to believe the testimony of several
witnesses for'the General Counsel who' testified that
the plant rules containing the ban on solicitation
were not put back on the plant bulletin board until
after the discharge of Mrs. Ferrick. -
Even if I were to accept, moreover, the testimony
of Bereli, and the revised testimony of Wiskoski,
and thus conclude that the plant rules, were put
back on the bulletin board before the discharge of
Mrs. Ferrick, it would remain highly questionable
whether the plant rules had ever been adequately
called to the attention of the Respondent's em-
ployees. The plant rules were not contained in any
booklet distributed to the employees either when
they were hired or at any subsequent time. Thus, it
would depend entirely on how often and how care-
fully an employee looked at the plant bulletin board
as to whether he saw and read the plant rules. The
bulletin board was located, to be sure, in a strategic
location to the left of the timeclock, and it was a
good sized bulletin board, its dimensions being 3 by
8 feet, but it was only a few feet above the floor
level, it was covered by many notices, and the plant
rules were posted in the lower left' hand corner of
the bulletin board where they would be particularly
hard to see. The record shows affirmatively,
moreover, that the frequency with which employees
not enhance her credibility as a witness when she testified on direct ex-
amination that Christine Bereli gave her the plant rules when she was hired,
and then changed her testimony in this respect on cross-examination. She
then testified that Christine Bereli did not give her a copy of the plant rules
when she was hired but told her that they were on the plant bulletin board
TALON, INC. 359
looked at the bulletin board varied very greatly.
Some employees , including Mrs. Ferrick , looked at
the plant bulletin board almost every day but other
employees ' looked at it only once a week , or once
every few months . Once the plant rules had been
removed from the bulletin board , it might thus take
months before particular employees would become
aware of them again.
As there was actually no valid rule against sol-
icitation at the time of Mrs . Ferrick 's discharge, it is
clear that the Respondent discharged her for engag-
ing in a protected concerted activity , and thus ad-
mittedly violated Section 8 (a)(3) and ( 1) of the
Act. This conclusion is dispositive of the case but
the Respondent 's position is no better upon the as-
sumption that the plant rules were properly promul-
gated and restored to the bulletin board , and that
they were actually seen there by Mrs. Ferrick and
other employees prior to her discharge.
If the plant rules were there for all employees to
read, and rule 6, the no -solicitation rule, were read
by them , they would find it extraordinarily difficult
to understand it. Rule 6 has a major built-in am-
biguity and the Respondent 's employees , who were
not lawyers but uneducated women , could hardly
be expected to understand it. Rule 6 prohibited sol-
icitation "during working hours." The working
hours of a plant that operated in only one shift
would be the same for all employees , and it would
be easy to determine whether an activity had oc-
curred during the working hours. But in a plant like
the Respondent 's that operated on three shifts there
were three sets of working hours , and brief over-
lapping periods when employees on one shift were
getting ready to quit work , and the employees on
the following shift were getting ready to begin
work . Were these periods 'part of the working hours
of either set of employees? It is hard to say, and
whoever drafted mile 6 failed to grapple with this
problem and failed to define what he meant by
"working hours." Surely, Mrs. Ferrick could
reasonably have interpreted the rule to mean that
soliciting was not prohibited before the buzzer for
her own shift sounded . It is a settled principle of
construction , whether the instrument to be con-
strued is a set ofplant rules , a contract, or a statute,
that the language of the instrument is to be con-
strued against the draftsman . In this case this would
be the agent of the Respondent who was responsi-
ble for the text of the plant rules.
Finally , even if the ambiguity in the Respondent's
no-solicitation rule could be resolved in its facor,
and the rule could be regarded as presumptively
valid, the presumption is rebuttable , and even if
Mrs. Fernck solicited union membership during
what was technically working time , the Respondent
would have violated Section 8(a)(3) and (1) of the
Act nonetheless, since the purpose of the Respond-
ent was not to maintain the efficiency of produc-
'See for Instance The William H. Block Company, 150 NLRB 341; Taylor
Instruments Companies, 165 NLRB 843.
tion but to put a stop to any union activity in its
plant, and it applied the rule in a discriminatory
manner. 6
If there is anything clear from the evidence, it is
that Mrs. Ferrick's approach to Susan Smith and
Janet Delnero, which consumed only 2 to 3
minutes, in no way interfered with their productive
efficiency, or even with the cleanup of their
machines, as indeed they themselves admitted. Yet
the Respondent chose to fire her in unseemly haste
upon a tenuous and debatable point of interpreta-
tion, on a day when she was specially needed, and
without affording her an opportunity to defend her-
self. It took this action, based on hearsay, although
it was permitting all sorts of other forms of solicita-
tion which must have had a far greater impact upon
productive efficiency than Mrs. Ferrick's almost
momentary contact with Susan Smith and Janet
Delnero. The evidence of the General Counsel's
witnesses, as well as the evidence of the Respond-
ent's witnesses, shows that employees were per-
mitted by the management to solicit "freely for or-
ganizations known as the Sunshine Club, Stanley
Home Products, and Avon Products, and to take up
Christmas collections for the purpose of buying
Christmas gifts for supervisors. Moreover, just
about 2 weeks before the discharge of Mrs. Ferrick,
the management authorized solicitations in connec-
tion with the operation of a numbers pool, although
gambling was prohibited by rule 5 of the plant
rules, and such conduct was prohibited on company
property, and could not be engaged in, therefore,
even during nonworking time. Nevertheless, Mrs.
Ferrick was discharged without even a warning,
although nobody before had'ever been discharged
for soliciting. Some employees had,been discharged
for absenteeism but only after 'due warning,
although such warnings were not required by the
plant rule relating to absenteeism, which was rule
13. It is plain that the Respondent, through
Wiskoski, was administering the plant rules in a dis-
criminatory manner, and that Mrs. Ferrick became
the victim of this discrimination.
IV. THE REMEDY
In view of the serious nature of the violation in-
volved in the discharge of Blanche Ferrick, I shall
recommend a broad form of a cease-and-desist
order, restraining the Respondent from infringing
upon any of the rights guaranteed to employees in
Section 7 of the Act.
To remedy the discharge of Blanche Ferrick, I
shall also recommend, by way of affirmative relief,
that the Respondent offer to her immediate and full
reinstatement to her former or substantially
equivalent position, without prejudice to her
seniority or other rights and privileges enjoyed by
her, discharging if necessary, any new employee
hired subsequent to the date of her discharge in
order to replace her. I shall also recommend that
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent make Blanche Ferrick whole for
any loss of pay she may have suffered by reason of
her discharge by payment to her of a sum of money
equal to the amount which she would normally
have earned as wages from the date of her
discharge to the date of the Respondent's offer of
reinstatement, less her net earnings during the said
period. The amount of backpay is to be determined
in accordance with the formula prescribed in F. W.
Woolworth Company, 90 NLRB 289, and interest is
to be computed on the amount so determined in ac-
cordance with Isis Plumbing & Heating Co., 138
NLRB 716.
CONCLUSIONS OF LAW
1. The Respondent , Talon, Inc., is an employer
engaged in commerce , or in an industry affecting
commerce , within the meaning of Section 2(6) and
(7) of the Act.
2. International Ladies' Garment Workers'
Union, AFL-CIO , is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminatorily discharging Blanche Fer-
rick , one of its employees , on July 7 , 1967, because
she had solicited fellow employees to join or sup-
port the Union , the Respondent has committed an
unfair labor practice affecting commerce , within
the meaning of Section 8(a)(1) and (3) of the Act.
4. By applying discriminatorily a rule against sol-
icitation during working hours in order to
discourage union activity among its employees, the
Respondent interfered with , restrained, and
coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act , and thereby
committed an unfair labor practice affecting com-
merce within the meaning of Section 8(a)(1) of the
Act.
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant
to Section 10(c) of the National Labor Relations
Act, as amended, I recommend that the Respond-
ent, Talon, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International
Ladies' Garment Workers' Union, AFL-CIO, or
any other labor organization of its employees, by
discharging any of its employees, or in any other
manner discriminating against them with respect to
their hire or tenure of employment or any term or
condition of their employment.
(b) Applying discriminatorily a rule against sol-
icitation during working hours in order to
discourage union activity among its employees.
(c) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of the rights guaranteed to them in Section 7 of
the Act.
2. Take the following affirmative action in order
to effectuate the policies of the Act:
(a) Offer to Blanche Ferrick immediate and full
reinstatement to her former or substantially
equivalent position, without prejudice to her
seniority or other rights and privileges, and make
her whole for any loss of pay she may have suffered
by reason of the discrimination against her in the
manner and to the extent set forth in section IV of
this Decision 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, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(c) Post at its plant at 215 Baldwin Street, West
Springfield, Massachusetts, copies of the attached
notice marked "Appendix."' Copies of said notice,
on forms provided by the Regional Director for Re-
gion 1, after being duly signed by the Respondent's
representative, shall be posted by the Respondent
immediately upon receipt thereof, and be main-
tained by it for 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.
(d) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply
herewith.'
7 In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read- "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps 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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discourage membership in In-
ternational Ladies' Garment Workers' Union,
AFL-CIO, or in any other labor organization
or our employees, by discriminating with
respect to the hire or tenure of their employ-
ment or any term or condition of their employ-
ment.
WE WILL NOT apply discriminatorily our
plant rule against solicitation during working
TALON, INC. 361
hours in order to discourage union activities
among our employees.
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of the right to self-organization, to
form labor organizations , to join or assist the
above named or any other labor organization,
to bargain collectively through representatives
of their own choosing, and to engage in any
other concerted activities for the purpose of Dated
collective bargaining or other mutual aid or
protection , or to refrain from any and all such
activities.
WE WILL offer to Blanche Ferrick immediate
and full reinstatement to her former or sub-
stantially equivalent position without prejudice
to her seniority or other rights and privileges
and make her whole for any loss of pay she
may have suffered by reason of our discrimina-
tion against her.
All our employees are free to become or remain,
or to refrain from becoming or remaining , members
of any labor organization except to the extent that
such right may be affected by an agreement requir-
ing membership in a labor organization as a condi-
tion of employment as authorized by Section
8(a)(3) of the Act.
By
TALON, INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced, -or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board 's Regional
Office, 20th Floor, John F. Kennedy Federal Build-
ing, Cambridge and New Sudbury Streets , Boston,
Massachusetts , Telephone 223-3353.