Andrew Jergens Co. of California

National Labor Relations Board - Board Decisions

Aug 21, 1942

43 N.L.R.B. 457 (N.L.R.B. 1942)

In the Matter of ANDREW JERGENS CO. OF CALIFORNIA and SOAP & COS-
METIC WORKERS UNION, No. 21361 '
Cases No.. R-762 and C-793.-Decided August 21, 1942
Jurisdiction : toilet preparations manufacturing industry.
Unfair Labor Practices
In General:
Where after hearing respondent corporation was 'merged with parent
successor corporation, which carried on the business of -respondent un-
changed in character, merger involving no real change in ownership or
employer-employee relationships, and successor corporation was subject to
obligations of respondent corporation pursuant to state statutes, successor
corporation was held responsible for unfair labor practices of original
respondent. .
Company-Dominated Unions: formation of first, to forestall outside organiza-
tion ; participation in formation of : suggesting organization; Calling and
attending meeting; participation in, administration ; serving as officers;
attending and soliciting employees to attend meetings-successor organization
formed after dissolution of predecessor ; similarity in structure and identity'
of officers; solicitation, surveillance, threats and anti-miion statements by
supervisory employees. .
Discrimination: discharges for union membership and activities; lay-offs because
of union membership and failure to. affiliate with company-dominated union;
delayed reinstatements because 'of union membership and refusal to join com-
pany-dominated union ; charges of discrimination dismissed as to several
V•
employees
Collective Bargaininq: charges of, dismissed -
Remedial Orders : issued against successor corporation: requiring it to dises-
tablish the successor-dominated organization, reinstate employees who had
not been reinstated, award back pay to employees who, had not been rein-
stated as well as to those ordered reinstated, and to place upon preferential
list employees who were found to have been non-discriminatorily laid off.
Evidence:
Illegally obtained evidence admissible where it (lid not appear that any
government agent acted in collusion with culpable person in securing the
evidence, thereby violating some provision of the United States Constitution,
and where it did not appear that obtaining the document or revealing its
contents violated any federal statute.
Practice and Procedure : substitute of successor corporation as party respond-
ent in proceedings ; dismissal of petition in view of lapse of time since filing.
Mr. Frank A. Mouritsen, for the Board.
Mr. Ralph E. Palmer, of Glendale, Calif., and Mr. Marshall Shafer,
of Wilmington, Calif., for the Union. .
-, - 43 N L . R B , No. 77: -
457
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Frank Mergenthaler, of Los Angeles, Calif., for the California
corporation, and Messrs. Frost d Jacobs, of Cincinnati, Ohio, for the11
Ohio corporation.
Mr. Harry Cooper, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On November 8, 1937, Soap & Cosmetic Workers Union, No. 21361,1
herein called the Union, filed with the Regional Director, for the
,Twenty-first Region (Los Angeles, California) a petition alleging
that'a question affecting commerce had arisen concerning, the repre-
sentation of employees of Andrew Jergens 'Co. of California, Bur-
bank, California, herein called the California corporation, and re-
questing an investigation and certification of representatives pursuant
to Section 9 (c) of the National Labor.Relations Act, 49 Stat. 449,
herein called the Act.
On December 3, 1937, the Union filed with the Regional Director a
charge alleging that the California corporation had engaged in and
was engaging in unfair labor practices affecting commerce Within the
meaning of the Act. -
On December 21, 1937, the National Labor Relations Board, herein
called the Board,- acting pursuant to Section 9 (c) of the Act, and-
Article III, Section 3, of National Labor Relations Board Rules and
Regulations-Series 1, as amended, ordered an investigation in Case
No. R-762, authorized the Regional Director to conduct it and to
provide for an appropriate hearing upon due notice, and, acting
pursuant to Article III, Section, 10 (c) (2) and Article II, Section
37 (b) of said Rules and Regulations, further ordered that Case
No. R-762 and Case No. C-793 be consolidated for purposes of
hearing.
Upon the aforesaid charge and amended charges duly filed by
the Union, the Board, by the Regional Director, issued its complaint
'dated January 4, 1938, against the California corporation, alleging
that it had engaged in and was engaging in unfair labor practices
.affecting Commerce, within the meaning of Section 8 (1),- (2), (3),
and (5) and Section 2 (6) and (7) of the Act. Apart from the juris-
dictional allegations, the complaint, as amended prior to and at the
hearing, 'alleged in substance (1)' that the production employees of
i This labor organization was designated as Soap & Cosmetic Workers A P of L on the
petition , charge , complaint, and other formal papers . At the hearing the pleadings were
amended to state the name of the organization as set forth above.
ANDREW JERGENS CO. OF CALIFORNIA 459
the California corporation , excluding office employees , maintenance
employees , foremen, forewomen , and supervisors , constitute a unit
appropriate for the purposes of collective bargaining ; ( 2) that,al-
though a majority of, the employees in said unit have designated the
Union as their exclusive bargaining representative , the California
corporation has refused and continues to refuse to bargain collectively
With the Union; ( 3) that the California corporation has dominated,
supported , and interfered with the formation and administration of
two labor organizations , respectively known as Andrew Jergens Em-
ployees' Association , herein called the Association , and Independent
Soap & Cosmetic Workers Union , Inc., herein called the Independent;
(4) that the California corporation laid off , refused and continues to
refuse to reinstate Ed Young because of his union activity and because
he engaged in concerted activities with other employees for their
mutual aid and protection ; ( 5) that the California corporation dis-
charged, refused , and continues to refuse to reinstate 42 other named
employees 2 for the reason that they joined and assisted the Union and
engaged in concerted activities with other employees for their mutual
,aid and protection ; and (6 ) that by the foregoing and other acts, the
California corporation has interfered with, restrained , and coerced its
employees in the exercise of rights guaranteed in Section 7 of the
Act:
Copies of the complaint , accompanying notice-of hearing, amend-
ments to the complaint , the petition , and a separate notice of hearing
on the petition, Were duly served upon the California corporation and
the Union . , The Independent was served with copies of the complaint,
accompanying notice of hearing, and amendments to the complaint.3
,The California corporation filed an answer to the complaint , contest-
ing the Board 's jurisdiction of the subject matter, denying that it had
engaged in the unfair labor practices alleged in the complaint, and
making certain averments hereinafter referred , to. The answer was
amended, at the hearing.
Pursuant to notice , a hearing in the consolidated cases was held
at Los Angeles , California , from January 11 to March 11, 1938,
2 The names of these employees follow : Suzanne Adams , Florence Arnold, Clementine
Bayless, W. G Blackmon. June Brown , Grace Louise Bruce , Glen Campbell , Vera Campbell,
Lesley ( Leslie ) Chatfield , Lola Cox, James (J. R.) Craig, Helen Cox Dobbin ( Dobbins),
L. H. Eddington , Sue,Fields , Mary Gracey , Melba Grafstrom , Harold R. Gratias , Mildred
Gribble, Kathryn ( Katherine ) Hayes , Norman Heywood , Dorothy Holmes , Lena Holmes,
Lula Johnson , Jane Lansing , Jean Mills , Joseph Mulleda , Chester ( C. F ) Murphy, Ruth
Newman , Ralph Palmer ,- Shea Paysingei ( Peysinger ), Ilene Pillow , Velma Rainwater, Vir-
ginia Reid , Ruth Rhoads , Helen Rogers . Betty Rowe, Ralph Smith, Arlene Stewart , Dolores
Van Holm , Eudalia Watkinson, Nancy Williams , and Marie Worcester.
a Service on the Independent was made on January 20, 1938, during a recess of the hear-
ing, when , the Second Amendment to the Complaint , alleging that the California corpora-
tion dominated, supported, and interfered with the formation and administration of the
Independent , was issued and served upon the parties.
460 DECISIONS OF NATIONAL' LABOR RELATIONS. BOARD
inclusive, before Dwight W. Stephenson, the Trial Examiner duly
'designated by the Board. Upon motion filed by the California cor-
poration with the Regional Director on March 19, 1938, the record
was reopened and further hearing held on April 8, 1938, for the
purpose of adducing after-discovered evidence relating to the case
of William G. Blackmon, an employee of the California' corporation.
The Board and the California corporation were represented, by
counsel, the Union by-its president and business representative, and
all participated in the hearing. Although the Independent was served
with a copy of the complaint and amendments thereto and was advised
of its right to 'intervene in the proceeding, it did not appear. Full
opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all
parties.
During the course of the hearing the California corporation made
motions to dismiss the petition on jurisdictional grounds and the
complaint on the ground that the evidence did not support its allega-
tions. The Trial Examiner denied these motions and his rulings are
hereby affirmed.
Toward the close of the hearing, and during cross-examination of a
witness for the California' corporation, the Board's attorney offered
in evidence a document, herein referred to as the Rothenberg memo-
randum. The California corporation objected to its receipt in evi-
dence on the general ground that it was incompetent, irrelevant, im-
material, and not probative of any issue in 'the case, and on the
special ground that the contents of the memorandum had not been
shown to have been communicated to anybody. The Trial Examiner
overruled these objections and admitted the Rothenberg lnemoran=
dum. Thereafter the California corporation moved to strike the
document from the record on the ground that it had been obtained
unlawfully by some person from a plant waste receptacle and that
Board counsel had knowledge of such unlawful act when he offered
the document in evidence 4 The California corporation did not con-
tend that any government agent acted in collusion with such person
in securing the document. The Trial Examiner denied the California
corporation's motion to strike. We agree with the Trial Examiner's
ruling. Illegally obtained evidence is admissible in State and Federal
courts.5 The modification of this rule by the Federal courts does
not support the California corporation's position: It does not appear
that any government agent acted in collision with the culpable per-
4 We assume , without deciding , that the document was unlawfully obtained.
5 Olmstead v. United States, 277 U. S. 438 ; gmore on Evidence , sections 2183 and
2184; 1934 supplement, pp. 940-950. Cf. Code of Evidence, Tentative Draft No 1, Ahnera-
can Law Institute , Rule 4.
ANDREW JERGENS CO. OF CALIFOR11i?IA 461
son, thereby infringing some provision of the United States Consti-
tution,; 6 or that obtaining the document or revealing its contents
violated any Federal statute.?
The Board is "charged in the public interest with the duty of pre-
venting unfair labor practices" defined in the Act, and Board pro-
ceedings thereunder are "narrowly restricted to the protection and
enforcement of public rights," as set forth therein.8 Here, the Cali-
fornia corporation in effect demanded that we subordinate the policy
of the. United States declared in the Act to the State criminal law
or to the California corporation's private rights.' These interests of
the State and the California corporation may be vindicated before
an appropriate tribunal in an appropriate proceeding. Congress
created the Board to protect the public interest in self-organization
and collective bargaining. In Board proceedings this public interest
must prevail as against the interests contended for by the California
corporation.° The Trial Examiner's denial of the motion to strike
is hereby affirmed. . • .
Other motions and objections to the admission of evidence were
made and ruled upon at the hearing. The, Board has reviewed the
rulings of the Trial Examiner. and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On or about July 27, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties. There-
after the California corporation and the Union filed their respective
exceptions to the, Intermediate Report. On December 6, 1938, the
California corporation filed with the Board and served upon the parties
an Affidavit of Prejudice, praying that the Intermediate Report of
the Trial Examiner be not approved. On December 8, 19B8, the Cali-
fornia corporation filed a brief with the Board. On December 10,
f938, the Trial Examiner filed with the Board and served upon the
°Baideau v McDowell , 256 U. S 465 . The California corporation contended that, be-
cause counsel for the Board introduced in evidence the Rothenberg memorandum toward the
close of the hearing , it was deprived of an opportunity to investigate the removal of the
document from the plant and the connection of agents of the Board with such removal.
However , the memorandum was intiod'iced on March 1 , 1938, and the hearing did not close
until March 11, 1938. Moreover, counsel for the California corporation did not clann
that he had insufficient time to make the desired investigation and made no request for a
continuance of the hearing for such purpose We find that the California corporation was
afforded ample opportunity to prove any connection between agents of the Board and the
removal of the document from the plant
a Cf Nardone v. United States , 302 U. S 379 ; Nardoni v . United States , 60 S Ct. 267.
8 National Licoi ice Company v N L. R. B , 60 S. Ct 569
9 Cf, National Licorice Company v. N. L. R. B., 60 S . Ct. 569 ( Board may effectuate
policies of Act by invalidating contract rights)'; N L R B v Carlisle Lumber Co , 94 F.
(2d) 135. 99 F (2d) 533 (C. C A. 9), cert. den'd, 304 U S. 575, 306 U. S 646 (Board may
effectuate policies of Act by an.atder against employer , despite unlawtul conduct by charg-
ing union ) ; Republic Steel Corp v N L R B, 107 F . ( 2d) 472 (C C A 3 ) (Board may
effectuate policies of Act by ordering employer to reinstate employees , despite then ' Aiola-
tion of the criminal law of the State).
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties any affidavit in answer to said Affidavit' of Prej udice.1° On
December 13, 1938, the Board issued ali,order (1) granting the Cali-
fornia corporation's prayer and not approving the Intermediate Re-
port; (2) expunging and striking from the record the Intermediate
Report, the exceptions thereto, and all other formal documents with
respect thereto, except the Affidavit of Prejudice and the affidavit of
the Trial Examiner in answer thereto; (3) transferring and continuing
Case No. C-793 before the Board in accordance with the Board's Rules
and Regulations; (4) directing the issuance of Proposed Findings of
Fact, Proposed Conclusions of Law, and 'Proposed Order; and (5)
granting the parties the right, within 10 days from the receipt of said
proposed findings, to file exceptions, to request oral argument before
the Board, and to request permission to file a brief with the Board.
On July 18, 1940, the Board- issued and duly served on the parties,
and the 'Independent, its Proposed Findings of Fact, Proposed Con-
clusions of Law, and Proposed Order. In its proposed findings
the Board directed that the parties should have the right within 20
,days from the date of receipt of the proposed findings to file excep-
tions thereto and request permission to argue orally before the Board,
and within 30 days from the receipt of such proposed findings to file
a brief with the Board. Thereafter the California corporation and
the Union filed exceptions to the proposed findings: The California
corporation and the Union, respectively, also filed a brief and a state-
ment in support of-their exceptions.
On September 27, 1940, the Board issued a Decision and Order in
these proceedings. On December 17, 1940, the Board notified the
parties that, unless sufficient cause to the contrary should appear, the
Board would vacate and set aside said Decision and Order. On
January_10, 1941, the Board vacated and set aside'said Decision and
Order for the purpose of further proceedings 'before the Board.
On March 17, 1942, the Board issued an order which- was duly,
served upon the parties and The Andrew Jergens Company (of
Ohio), Cincinnati, Ohio, herein called the Ohio corporation, reopen-
ing the record for the purpose of receiving further evidence relating
to changes in the name and status of the California corporation and
transferring these proceedings to the Regional Director for the Ninth
Region for the purpose of further hearing. On April 9, 1942, the
Ohio corporation filed a special appearance waiving further hearing
10 From the affidavits filed by the California corporation and the Trial Examiner it ap-
pears that after the close of the hearing and after the submission to the Chief Trial Exam-
iner by the Trial Examiner of a rough draft of the Intermediate Report, which was substan-
tially the same as the draft finally issued and served upon the parties, but before such
issuance and service the Trial Examiner became a candidate in a primary election ; that
the election district included voters who were employed at the plant involved in this pro-
'eedmg; and that the Trial Examiner claimed to be the "only candidate officially
indorsed by organized labor "
ANDREW JERGENS CO. OF CALIFORNTA 463
or notice thereof, and admitting certain facts regarding the past and
present relationship between the California corporation and the Ohio
corporation, so that the Board might make such facts part of, the'
record in these proceedings. Those facts'are hereby made apart of
the record herein.
'On June .5, 1942, the Board duly .served upon the parties and the
Ohio corporation notice that, unless sufficient cause to the contrary
should appear, the Board would substitute the Ohio corporation as'
the party respondent in these proceedings, and would reinstate and,
reissue -its Decision and Order of September 27, 1940,, substituting'
therein- the Ohio corporation for the California corporation. 'On
June 15, 1942, the Ohio corporation filed, its objections to the action
proposed in said notice.
- The Board has, considered the exceptions, the California 'corpora-
tion's brief," the Union's statement, and the Ohio corporation's ob-.
jections of June 15, 1942. In its -brief the California corporation',
contended that it was deprived of a fair hearing. - The Board finds
this contention to be -without merit.12 Insofar as the exceptions, and,
objections are inconsistent with the findings of fact, conclusions of.
law, and order set forth below, the Board finds them twbe,.NKithout,
merit.
i L ^^',^ Pk:2 v
Upon the entire record in the case, the Board makes the following:"
FINDINGS OF FACT
I., THE BUSINESS OF THE CALIFORNIA CORPORATION AND TIIE OHIO CORPORA-
TION, AND THE RESPONSIBILITY OF THE OHIO CORPORATION FOR THE UNFAIR
LABOR PRACTICES
The Andrew Jergens Company (of Ohio) is an Ohio corporation
engaged in the manufacture and sale,of toilet articles, cosmetics, and.
related products. Its principal place of business, is in Cincinnati,
Ohio, and it operates a plant at Burbank, California,-which is the only
plant involved,in, this proceeding. , Prior to November 1939, and
during the period of the unfair labor practices found below, the Bur-
bank plant 'was'owned and operated by a subsidiary, Andrew Jer=
gens Co. of California, a California corporation. The California
corporation purchased between 35 and 50 percent of the raw materials
11 In its brief the California corporation incorporated by reference a brief filed December
8, 1938 The Board has considered the brief of December 8 as part of the California corpo-
ration's subsequent brief
12 At the close of the Board's case counsel for'the California corporation applied for and
was denied a continuance Upon the entire record we find that such denial did not deprive
the California' corporation of'a fair hearing
At the close of the hearing counsel for the,California corporation stated with reference
to the conduct of the hearing that ". under certain circumstances this might have
developed into a cat and dog fight, if it hadn't been for the capable and judicial manner in
Much the [Trial] Examiner has handled it, and his patience in the case .
464 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
used at the Burbank plant outside the State of California. For the
fiscal year of December 1, 1936, to November 30, 1937, the, purchase
price of raw materials amounted to $736,641.
,The bulk of the products manufactured at the Burbank plant was
sold to Jergens-Woodbury Sales Corporation of California, a Cali-
fornia corporation whose stock, was'owned by the California corpora-
tion, whose offices were in the-same building as those of the latter cor-
poration, and whose officers were identical with those of the California
corporation. The sales corporation employed no shipping employees,
the employees of the California corporation doing the shipping for
the sales corporation. Between 40 and 50 percent of the products
-sold by the sales corporation for the years 1936 and 1937 were shipped'
to points outside of California. Sales of the products of the Cali-
fornia corporation in 1937 amounted to $1,300,852.89. The sales cor-
poration employs salesmen and serves the territory west of a line
drawn on the-eastern boundaries of New Mexico, Utah, and Montana,
from the Mexican border to Canada., •
. During November and December 1937 and January 1938 , approxi-
mately 87 production and maintenance employees were employed at
the -Burbank, plant.
The Ohio corporation owned and held approximately 61 percent of
the voting stock of the California corporation. During 1937 and
thereafter up to November 30, 1939, the principal officers of the Ohio
corporation, who together comprised a majority of its board of direc-
tors; were also the principal officers of the California corporation, and
comprised a majority of its board of directors. These three officers
were Andrew Jergens, president; Frank C. Adams, vice president;
and Joseph D. Nelson, secretary. ' In addition to being secretary of
both corporations, Nelson served as general manager of both. Nelson
appointed L. M. Rothenberg, the local general manager at the Bur-
bank"plant. Rothenberg admitted at the hearing that the policies of
the'management at the Burbank plant were determined in Cincinnati.
It appears from the evidence that Nelson advised Rothenberg with
regard to labor relations at the California plant, that Rothenberg
lacked authority to recognize the Union as collective bargaining repre-
sentative without the consent of Nelson, and that Rothenberg reported
to Nelson regarding certain' of the unfair- labor practices found herein,
as noted below in connection with the Rothenberg memorandum. •
On or about November 30, 1939, the corporate existence of the
California corporation terminated through the merger of that cor-
poration with the' Ohio corporation. The merger agreement pro-
vided that all the assets, business, and good will of the California,
corporation should be transferred to the Ohio corporation, which
was to continue as the consolidated corporation. It appears from
the merger agreement that the holders of stock in the two corpora-
- ANDREW JERGENS CO. OF' CALIFORNIA 465
tions received stock in the Ohio corporation in exchange for their
prior holdings in the two corporations. It further appears from
the merger agreement that the, principal officers of the merged cor-
poration, constituting a majority of its board of directors, were, for
a period up to January 1940, Andrew Jergens, president; Frank
Adams, vice president and treasurer; and Joseph D. Nelson, vice
president and secretary. It does not appear that any management
personnel changes were made at the Burbank plant as a result of the
merger.
In National Labor Relations Board v. Arthur L. Colten and Abe J.
Colman, co-partners doing business as Kiddie Kover Manzufacturing
Company,13 the United States Circuit Court of Appeals for the Sixth
Circuit stated:
It is the employing industry that is sought to be regulated
and brought within the corrective and remedial provisions of
the Act in the interest of industrial peace,.,. . It needs no
demonstration that the strife which is sought to, be averted is no
less an object of legislative solicitude when contract, death,' or
operation of law brings about change of ownership in the employ-
ing agency.
In the instant case, the merger involved no real change in owner-
ship or management of the Burbank plant, or in the employer-em-
ployee relationship. So far as appears, the Ohio corporation has
continued the business of the California corporation unchanged in
character. Moreover, under the statutes of both California and Ohio,
a surviving corporation, following a merger, is subject to all the
liabilities, obligations, and duties of each of the constituent corpora-
tions and is subject to the results of any pending proceeding, and
may be substituted for either of the constituent corporations in any
pending proceeding.14 We find that, for the purposes of the Act,
the Ohio corporation, as successor to the California corporation, is
responsible for the unfair labor practices found below.15
We hereby substitute The Andrew Jergens Company- (of Ohio)
as ,the party respondent herein, in place and in stead of Andrew
Jergens Co. of California.
II. THE ORGANIZATIONS INVOLVED
Soap & Cosmetic Workers Union, No. 21361, is a labor organiza-
tion affiliated with the American Federation of Labor. It admits to
=$105 F. (2d) 179 (C C. A. 6)
"Civil Code of California , Sections 361, 361 ( a). Ohio General Code, Sections 8623-67,
8623-68, 8623-69.
"Compare N. L. It B V. Colter, 105 F (2d) 179 (C C. 'A. 6) ; N. L. R. B. v. Baldwin
Locomotive Works , 128 F ( 2d) 39, 65 ( C. C A. 3 ) ; Southport Petroleum Co v. N. L. R. B,
62 S. Ct . 452 ; Bethlehem Steel Co. v . N L R. B., 120 F. ( 2d) 641 ( App D. C.).
481039-42-vol 43-30 1
466 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.membership employees at the_ Burbank plant except maintenance
employees and watchmen.
Andrew Jergens Employees' Association was an unaffiliated labor
organization which admitted to membership employees of the Cali-
fornia corporation.
Independent Soap & Cosmetic Workers' Union, Inc., is a labor
organization -which admits to membership employees at the Burbank
plant.
III. THE UNFAIR LABOR PRACTICES
A.- Domination, support, interference, restraint, and coercion
1. The Andrew Jergens Employees' Association
In and after April 1937 employees of the California corporation
engaged in discussion concerning the formation of a labor organiza-
tion. On or about May 1 and June 10, E. F. Prior, a representative of
the A. F. of L., spoke to Ralph Palmer, a shipping-department
employee, and other employees about organizing a union.
On or about June 15, 1937, Ed Young, an employee in the shipping
department, and R. D. Van Hove, maintenance foreman, talked in the
engine room about wage rates and union organization at the Cali-
fornia corporation's plant.,-Van Hove remarked that organization
was all right if the employees "would stick together." At this point
in the conversation Russell, then general manager, came into the
engine room. Thereupon, according to Young, Van Hove stated "that
the union never did do a company any good; in fact, it 'caused a lot
of strikes and put a lot of people out of work," and Russell stated:
"That a boy, Van, give them the devil." Although Van Hove at the
hearing gave a different version of his-conversation with Young lie did
not •deny explicitly that he made the above-quoted anti-union state-'
ment. Van Hove denied that Russell made the above-quoted remark
attributed to the latter. Russell died before the hearing. Upon the
entire record we credit Young and find that Van Hove and Russell
made the afore-mentioned statements attributed to them.
On June 21, 1937, Van Hove called a meeting of the employees.
John Farral, soap-department foreman, and Theresa Santella, cream-
department forelady, notified employees to attend. Irene Odle, -pow-
der-department forelady, notified at least one employee to attend. The
meeting was held in the plant during the noon hour. Most of the
foremen and foreladies, including Van Hove, Santella, Odle, Farral,
Gladys Eckland, forelady in the soap department, and Paul At-,%vood,
then foreman in the shipping department, were present. Van Hove
presided. He informed the assembled employees that the purpose of
the gathering was to form an "inside" organization and; by this means,
-`-`ANDRE'W JERGE'NS CO. OF CALIFORNIA 467-
t6'prevent'the formation of an "outside" organization. Forelady San-
tella spoke in favor of the proposal. Pursuant to the advice of Van
Hove, Santella, and other persons, and over the objection of Palmer
and William Blackmon, a soap-department employee, the assembled
employees agreed to meet again that evening.
The meeting, in the evening of June 21, 1937, took place in the
D. A. R. hall in Burbank. Foreman Van, Hove presided. during the
first part of the meeting. Other super4Nsory employees attended and
participated therein. Forelady Santella asked June Brown, an em-
ployee under her supervision in the cream department, to take the
minutes of the meeting. At«-ood sat at a table ire the front of the
room and. assisted June Brown. Following some discussion, -it was
decided to organize a new "company union." The organization thus
formed became known as the Andrew Jergens Employees' Association.
Temporary officers were selected. Foreman Van Hove and Forelady
Odle were nominated for office but. declined-after strenuous objection
by Blackmon on the ground that they were supervisory employees.
After declining her nomination, Odle turned to Blackmon- and said,
"I will get even with you for this." 16 Palmer was elected president,'
Louis Cordery, an assembler in the shipping department, vice presi-
dent, and June Brown, secretary. Among several departmental repre-
'sentatives elected was Charles Bryan, another employee in the ship-
ping department. ,
Several days after June 21 Foreman Van Hove stated to Samuel
Geneau, plant superintendent, that he had called the first meeting of
that day' because he "thought it was best for the employees to have
their own association to represent them rather-than a union organiza-
tion." Geneau, according to Van Hove, "seemed to think that it was
all, right."
On or about June 28, pursuant to Palmer's suggestion; a meeting
of the temporary officers of the Association was held at the home of
Ruby Hiberger, an employee,'for the purpose of drafting a constitu-
tion and bylaws. Palmer presented a proposed constitution and by-
laws, and attempted without success to persuade those in attendance
that heads of departments should not be eligible to membership. .
On July 12 , the Association, at a membership meeting, adopted ,its
constitution and bylaws and elected permanent, officers and depart-
mental representatives. They included Palmer, president, Cordery,
-vice president, Jean Mills, employee in the,soap department, secretary,
and Ed Yingling,- employee in the shipping department, treasurer.
The first Monday in the month was established as a regular meeting
night.
10 Odle denied having made this statement , but since both Palmer and Blackmon testified
concerning the remark , and since it is consistent with Odle 's and the California corpora-
tion 's anti -union conduct set forth below , we do not credit her denial
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foreladies Eckland, 'Odle, and Santella, and Foreinen Farral and
Van Hove, Fred Joyner, foreman in the shipping department 17 and
Vincent Stephano, foreman'in the cream department, became members
of the Association sometime between June '21 and October 4, and
attended one or more meetings thereof.
After its formation Forelady Eckland requested employees in her
department to attend meetings of the Association. Odle requested at
least one employee to attend a' meeting of the Association, and stated
that it was important for employees to attend.
On August 15 the Association requested the California corporation
to recognize it, as'collective bargaining representative of its members,
and thereafter the California corporation agreed to such recognition
of the Association. The California corporation requested the Asso-
ciation, at the same time, to submit, a proposed agreement.
On October 4 the Association held a general membership meeting.
At this meeting the executive committee sponsored a resolution re-
questing the California corporation to put into effect specified in-
creased minimum rates of pay. Foreman Van Hove and Foreladies
Odle and Santella spoke in opposition to the resolution on the asserted
ground, among others, that the employees were satisfied with their
present wages. -The resolution was passed.
Following the meeting of October 4, six supervisory employees,'
including Van Hove, Eckland, Farral, Odle, and Santella. resigned
from the Association and several supervisory employees made state-
ments hostile to the Association's demand for a wage increase. Ruth
Nichols, assistant forelady in the soap department, informed employees
ins the department that the forelady, Gladys Eckland, "was quite
hurt . . . thought we were going against her wishes when we wanted
to ask for an increase in pay . . ." Eckland stated to employees in
the department that "they asked for it and they were going to get
it." Foreman Farral stated to Blackmon : "We will have to get busy
and'get more soap out; have to build our stock up . . . You fellows,
you are agitating around here . . ." Forelady Odle informed em-
ployees in her department that they were "going to work from now
on," and that she had "quit wasting [her] smiles" on the employees.'
On or about,October 9, Palmer transmitted to the California cor-
poration on behalf of the Association the demand for increased mini-
mum rates of pay and a proposed agreement providing for recognition
by the California corporation of the Association as representative
of its members. On October 15 the California corporation placed in
effect certain 'minimum rates of pay, which' apparently constituted
17 Joyner became foreman of the shipping department on October 11, 1937, and retained
his membership in the Association thereafter.
18 Eckland, Odle, and Farral denied the above statements attributed to then, but upon
the entire record NN e do not credit these denials
ANDREW JERGENS- CO.'' F CALIFORNIA 469
an increase for certain categories of employees . It is not clear from
the record whether or not the rates placed in effect were equivalent,to
those requested by the Association .19 On October 25 the California
corporation submitted to the Association a proposed agreement which,
among other things, embodied the October 15 minimum rate schedule,
contained a clause regulating hours of work , recognized the Associa-
tion for its members, stated that the Association was.opposed to strikes,
and included other provisions limiting exercise of the right to strike.
Palmer had concluded that the Association could not operate ef-
fectively as a labor organization because of "too much opposition
within the Company union " and lack of outside affiliation . - Accord-
ingly, he decided to call a special meeting of the Association to consider
the question'of dissolution.
On October 25 , the Assocation held a special meeting for the pur-
pose of considering the wage question and Palmer 's proposal to dis-
solve the organization . Palmer presided . Foremen Stephano and
'Joyner were present . Prior, A. F. of ` L. organizer , attended also,
at the invitation of Palmer. Palmer spoke in opposition to the pro-
posed agreement submitted by the management and in , opposition
to continuance of the Association . Prior described the advantages
of membership in the A. F. of L . Palmer introduced and the mem-
bership adopted a resolution dissolving the Association.
2. Independent Soap and Cosmetic Workers' Union, Inc.
At the conclusion of the meeting on October 25, 15 former members
of the Association, including Palmer, applied for membership in the
A. F. of L' thereby forming the Union.20 Thereafter, supervisory
employees of the California corporation made coercive statements in
regard to union membership and activity. Thus, ' on' October 26
Foreman Stephano stated to Leslie Chatfield, an employee who had
applied for membership in the Union at the October 25 meeting,'in
the presence of other employees, that "it would go hard with those"
3° The rate schedules are dated August 13 Gene, al Manager Rothenberg testified at the
hearing that the Calitornia corporation had decided, apparently prior to August 13, to
place the minimum rates in effect but delayed such action until October 15 , in order to
peimit the management to make adjustments in its sales prices
10 The cards which employees signed at this meeting and thereafter were application
cards for membership in Soap & Vegetable Oil Workers Union, Local No 20283-A. F. of L.,
Los Angeles and vicinity , and Soap & Edible Oil Workers Union, Local No. 18409, Long
Beach and 'vicinity . Prior, who distributed ' these application cards explained to' the em-
ployees that the forms were only temporal y, and that the employees would have their own
local labor organization in Burbank which would be known as " Soap and Cosmetic Workers
Union ," and, a similar explanation was madt to employees by Palmer and Blackmon when
soliciting members foi the Union thereafter . Prior testified that it was common practice
when organizing new groups of employees to use such application forms and that similar
cards were used in starting other local labor organizations . The testimony of numerous
employees who signed applications shows that they understood at the time they signed
that they were applying for membership in a local labor organizai ion.
470, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who joined the Union. A few days later, Stephano stated to Chat-
field that "he was.supposing that the company would shut down the
plant" because employees became affiliated with the Union. During
the week following October 25 Foreman Farral stated'to Lloyd Ed-
dington, employee in the soap department, "I- have it on good authority,
that if there should be any, labor trouble in the plant, it would be
closed down and -that the territories supplied by this plant would be
supplied by the other plants of the Andrew Jergens Company." Dur-
ing the same week, Forelady Santella told Clementine Bayless, em-
ployee in the cream department, that "she knew- the stockholders of
the company, and that they wouldn't stand for any foolishness, they
would just close down the plant." 21 On or about November 17, Fore-
lady Odle interrogated Campbell, an employee under her supervision,
concerning her membership in the Union and informed her that she
-would earn less money because of it.
On or about November 1 an unsigned notice appeared in the plant
announcing that the regular meeting of the Association would take
place in the evening of November 1, the first Monday in November.
The first Monday in the month had been the regular meeting night
of the Association. Otto Braunsdorf, a maintenance employee, also
-notified the employees by word of mouth that "we would have a
meeting that night as usual." Foreman Farral asked, Lloyd Ed-
dington, an employee under his supervision, if he would attend the
meeting.
The meeting was held as scheduled. The name of the inside organ-
ization was changed, from Andrew Jergens Employees' Association'
to Independent Soap and Cosmetic Workers of, Burbank, California'22
but no changes in its structure were made. As Braunsdorf testified,
"We went ahead in our regular way, our,rules and everything we got
is just like them old things we had before; everything is the same,
only we changed our name to have no mistake about names." Cordery,
former vice president of the Association, and Charles Bryan, former
departmental representative in the Association, were elected president
and vice president, respectively, of the Independent.
At about the same time Cordery circulated petitions for member-
ship in the Independent, to be signed by the employees. Distribution
of the petitions took place in the plant. Ruth Eckland, an em-
ployee and sister of Forelady Eckland, assisted Cordery in soliciting
signatures, to the petitions. On November 2 Assistant Forelady
Nichols asked Grafstrom, an employee in her department who had
refused to sign the petition, why she did not sign and whether she
21 Farral ,, Stephan 0 , and San tella denied the above statements but upon the entire record
we do not credit these denials
22 Subsequently the organization was incorporated and its name was changed to Inde-
pendent Soap and Cosmetic Workers' Union. Inc.
-ANDREW JERGENS CO. OF CALIFORNIA '471
wanted to work or not. Signed petitions were placed on the desks of
Foreladies Santella and Eckland.
The activity of the California corporation in relation to the forma-
tion of the Union and the Independent, atthis time, is further revealed
by a-, memorandum prepared by General Manager Rothenberg on
November 3 or, 4. On the basis` of this memorandum Rothenberg
wrote a letter to his superior, Nelson, in Cincinnati. The memo-
randlun is as follows :
J. D. N.-Business is starting to slack off much earlier this year
than previously. Due mostly I think to the political unrest and
here on the Coast labor trouble. The Ariz. & N. Mex. men are
complaining that due to mines shut down they are unable to pick
up much 'new business. Jones in N. Mex. also advises the agri.
districts are hard hit. Cotton & Stock prices down until the
Merchants are very much discouraged. GEH reports a similar
condition in his territory. Potatoes & other Staple farm products
hopelessly below a profitable price.
Last night we layed off 5 girls in the Soap Dept. & we'll prac-
tically close this Dept. down next week-leaving some of the
Hand Wrappers & 3 men on to clean up etc. This will give us
an opening to close down the Dryer for the week and, lay Black-
man the dryer man off (one of the AFL men). In the shipping
room we will lay off 2 Packers inc. Palmer. We'll move 2 of the
girls from Soap Dept. up to the Cream Dept. and lay off 2 girls
there (Both agitators). By this move we hope to have a clean
slate if the NLB step in & it will not delay our shipments a
particle. Have,about 4300 gr 337 in stock and a satisfactory
stock of other soaps. Expect to resume full operations Dec. 12th.
We are hoping to lick this AFL gang, the older men in the plant
have now taken an active stand and have reorganized the Co. Assn.
and 113 23 have a majority of the employees signed up-as willing
to stand by a Co. Assn. We presume Palmers first move will be
to go to the AFL or the NBL & they may call an election. If
enough of the employees signify a willingness to stay with the
Co. Assn. it will at least put a damper on the AFL activities for
the present. Have explained to the employees some of the actual
facts re. our intentions & what they may expect from the Union.
I am hoping some facts will sink in.
M. W. & Co. Glendale store has been closed since last Sat. noon.
Clerks on strike. Oakland is about to be tied up with a clerks
strike'in 43 Retail Stores inc. C. S. & F., W. & S., H. C. P., S. R.,
F. W. W., Kress and other similar establishments. We have
23 Symbol for "I understand."
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
already had cancellations on orders for these stores. Also notice
another small flare up at the Harbor. Dave Beck from Seattle
is in So. Cal. & claims he is going to make this another Seattle
as far as labor is concerned & I guess Biz. conditions in the NW
are not so good either as building has slacked off considerably.
The Steel Co. started operations yesterday and will have the
steel erected tonight. Then the riveting. ,
Tell Mr. Jergens they done a,good job in cleaning up his BA
property. It looks good & will attend to it again next year.
On November 8 the Union held- a 'meeting at a. place known as the
Burbank Women's Club. Atwood, Who had become assistant super-
intendent on October 10, and Foreman Van Hove stationed themselves
on the lawn adjoining the meeting' hall, and engaged, in Van Hove's
words, in "window peeping." Upon their being discovered by'Palmer,
they ran to Atwood's car which was parked in the viciniy. Palmer
invited them to attend the meeting but they declined the invitation.
On November 29 the California corporation posted a notice in the
plant setting forth Section 7 of the Act, its alleged desire to respect
its employees' rights, and its alleged intention not to discriminate
against employees because of their "labor activities."
On or about December 6 Foreman Van Hove admittedly stated to
Helen Rogers, an employee, that he did not "think unions was the
best proposition for the employees, . that the Association was bet-
ter . . ." Rogers testified that Van Hove at this time also questioned
her about her membership in the Union, and stated to her that lay-'
offs. were occurring because Palmer and Blackmon had not "let the
Association go just like they had started to," and that Palmer and
Blackmon would probably lose their jobs. William Weitzel, a former
employee,24 testified that Van Hove stated to him on or about January
25, 1938, that "it looks like as if the A. F. of L. fellows are all going to
be out of a job." Van Hove denied making these statements attributed
to him by Rogers and Weitzel, but, upon the entire record, we dis-
credit such denials and find that, in substance, he made these state-
ments.
Cordery resigned as president of the Independent prior to its in-
corporation on January 14, 1938, and was succeeded by Vice-President
Bryan. Yingling, former treasurer of the Association, became treas-
urer of the Independent. Cordery retained his membership in the
Independent and served on the committee which arranged for its
incorporation.
On January 28, 1938, the Independent informed the California cor-
poration by letter that it represented a majority of the employees,
attached thereto a list of alleged members, and requested exclusive
"L+ Weitzel 's employment ceased on February 21, 1938.
r
ANDREW JERGENS CO. OF CALIFORN-JA 473
recognition. The California corporation replied that it would defer
its answer to the request during the pendency of the hearing in the
present proceeding.
3. Concluding findings
Foremen and foreladies at the Burbank plant supervise the work
of-employees in their respective departments, have the power to dis-
charge employees for' flagrant violation of rules, and have the power
to recommend discharge for other cause to the superintendent. They
also have the power to lay off and reinstate employees. Odle is
apparently an exception to the foregoing, since, although sheds desig-
nated on'the record as forelady in the powder department and super-
vises the work of that department, it appears that she is subordinate
to Santella who is the head of both the cream and powder depart-
ments, and that she recommended to Santella whom to lay off and
reinstate. The California corporation did not dispute the supervisory,
status of'its foremen and foreladies, namely, Eckland, Odle, Santella,
Farral, Stephano, Joyner, and Van Hove;' or of those employees of
higher rank, namely, Atwood, assistant superintendent, Geneau, super-
intendent, and Rothenberg, general manager. '
It disputed the supervisory status of Cordery, Bryan, and Nichols.
Cordery was an assembler in the shipping department who transmitted,
orders from the foreman to employees in that department, supervised
the work of packers therein, and was considered an assistant foreman
by some of such employees. Bryan was in charge of the receiving
division of the shipping department and gave orders to from one to
three employees under him, depending on the amount of 'work in his
division. Cordery and Bryan were the first and second oldest em-
ployees, respectively, in their department, and each received an hourly
rate of pay of 727/2 cents, 5 cents per hour more than any other em-
ployee in the department, and a rate of pay appearing under the
category "assistant to foreman" on the management's minimum wage
schedule. No employees other than Cordery or Bryan were designated
at the hearing as assistant foremen or as assistants to foremen in the
shipping department. Nichols, sample girl in the soap department,
gave orders to employees in her department, acted as- forelady and
assistant forelady in their absence, and was considered a forelady or
assistant forelady by employees in her department. We find that
Cordery, Bryan, and Nichols are supervisory employees.
We find that Atwood, Bryan, Cordery, Eckland, Farral, Joyner,
Nichols, Odle, Santella, Stephano, and Van Hove acted in behalf of
the California corporation in forming, administering, supporting, par-
ticipating in, and interfering with, the Association and the Inde-
pendent or either, as set forth above, because-of their supervisory
positions; because they acted pursuant to the desire, plan, and intent.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,of the California corporation to defeat the organization of its 'em-
ployees by the American Federation of Labor; and because of the other
circumstances set forth in this record.
The California, corporation, through its supervisory employees,
formed the Association for the purpose of forestalling outside organi-
zation; participated in its administration, by membership, office-hold-
ing, and attendance and activity at-meetings; and solicited employees
'to attend meetings. It interfered with the Association through the
'statements and resignations of its supervisory employees, calculated
to discourage the Association from making a wage demand. In sum,
it supported, interfered with, and sought to dominate the Association.
The Independent succeeded the Association. Neither the formal
'dissolution of the Association nor its change of name to the Inde-
pendent, can conceal the continuity between these organizations. For
example, General Manager Rothenberg testified that it was his opin-
ion that the Independent was` the outgrowth of the Association.
Bryan testified that "in a certain sense" there was no real change be-
tween the Association and the Independent. The first meeting of the
Independent was announced as the regular meeting of the Associa-
tion, and Cordery testified that the Independent petition "was merely
a heading stating the name of the organization, and the date, and
what the petition was for, what they were signed for, that they under-
stood it was a membership in the reorganized Andrew Jergens Em-
ployees' Association . . The Andrew Jergens Company Associa-
tion-my daughter made a mistake in the heading. She had Andrew
Jergens Employees' Association, and she mistyped it Andrew Jergens
Company Association. I didn't notice it at the time . . ." Cor-
dery, Bryan, and Yingling were officers of both the Association and
the Independent.
The California corporation did "nothing to mark the separation
between the two [organizations], and publicly to deprive the succes-
sor of the advantage of its apparently continued favor." 25 The Cali-
fornia corporation, indeed, wished "to lick this A. F. L. gang" through
the "reorganized . . . Co. Assn.," or "at least," through the Associa-
tion, to "put a damper on the AFL activities for the present." To
that end, it thscriminated against union sympathizers, as noted be-
low; and-"explained to the employees some of the actual facts re our
intentions and what they may expect from the Union." It also sup-
ported the Independent by the above-mentioned acts, including super-
visory participation in the Independent, solicitation, surveillance,
threats, and anti-union statements. The posted notice of November
25 Westinghouse Electric & Mfg. Co. v. N. L. R B., 112 F. (2d) 657 (C. C. A. 2), aff'd.
(per curiam) 312 U. S. 660; Kansas City Light & Power Co. v. N. L. R. B., 111 F. (2d) 340
(C. C.A.8). 1 -
ANDREW JERGENS CO. OF CALIFORNIA 475
29,-while purporting, in general terms, to assure the employees free-
dom from interference, restraint, coercion, and discrimination, "neither
renounced the Company's unfair labor practices" in respect to the
Association and the Independent "nor promised their adandonment
and left- as a candidate the Independent, toward which the unre-
nounced unlawful activities of the company had been directed"; and
,accordingly ' fell far short of conveying `to the employees ' the knowl-
edge of a guarantee of an unhampered right in the future to determine
their labor affiliations.' " 26 Besides, the California corporation com-
mitted fresh unfair labor practices subsequent to the posting of the
notice.
We find that the California corporation has dominated and inter-
fered with the formation and administration of the Association and
the Independent and has contributed support to, them; that by its
aforesaid acts, the California corporation has interfered with, re-
strained, ' and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act:
B. Disc-r=imination
1. The discharge of Ed Young on June 18, 1937.,
Young began working for the California corporation as a packer
in the shipping department on February 17, 1936, at a'weekly wage
of $16. He worked continuously until his employrrient was termi-
nated. on June 18, 1937, at which time he was earning $22 a week.27
The complaint alleges and the answer denies that he was laid off on
June 18 because of his union and other concerted activity.
'For some months prior to June 18 Young had been dissatisfied
with his wages. In and after April 1937 he, Palmer, Blackmon, and
other employees openly discussed in the plant the matter of wage
rates and organization of the employees. 'In May or June 1937
Young informed Assistant Superintendent William Shopman and
'Foreman Atwood that'the employees should receive a wage increase.
Young' was one _ of those with whom Prior conversed on June 10
about organizing a union, and Assistant Superintendent Shopman
stood behind Young during the conversation. We have noted above
Young's conversation with Foreman Van Hove on or about June 15
concerning wage rates and union organization at the Burbank plant.
During the course of this conversation Van Hove made anti-union
statements and General Manager Russell encouraged such statements
by stating : "That ar- boy, Van, give them the devil." -
' N. L. R B. v Falk Corp , 308 U S 453
.27 On the day of his discharge , he, among other employees , received a $2 increase in pay.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 18, 3 or 4 days following the last-mentioned incident, after
consultation with Assistant Superintendent Shopman, Foreman At-
wood discharged 28 Young, informing i im that he was being laid off,
and that Atwood hated-to see him go.29 Atwood was unable to give
him a reason for his selection for lay-off, and no reason was assigned
on the slip notifying him of his release. Young asked General Man-
ager Russell the reason for his, lay-off. Russell stated at first that,
Young had made too many mistakes. Young asked Russell to check
on the number of his mistakes, stating that he considered that he had
not done so badly, having made four or five mistakes during the course
of his employment. Russell replied that a check was unnecessary,
since the'California corporation was "laying off" some of the junior
employees. Thereupon Young informed' Russell that he was not a
new employee, that he had been in the California corporation's em-
ploy- for 11/2 years, and that he had seniority over four employees,
whom he named, in the shipping department. Russell then stated he
would investigate the matter of Young's lay-off and that Young would
,probably be recalled to work within a week.
Young was never recalled and has never returned to work for ' the
California corporation, although an employee hired subsequent to his
discharge began to work in the shipping department about September,
20, 1937. '
The California corporation's business decreased ill June 1937.
Young, however, was, the only employee in the shipping department
discharged at the time. He had seniority over 6 employees in his
department of 11 employees. Atwood testified, without explanation,
that seniority was not considered at all in the case of Young, although
thereafter, as set forth below, when making lay-offs in the shipping
department, he did' consider seniority, and 'employees with the least
seniority were in fact the first to be laid off.
Atwood testified further that he selected Young for lay-off because
Young was the least efficient employee in the shipping department,
had made several mistakes iii packing, and was not dependable. At-
wood did not specify, however, what mistakes Young had made.
The California corporation introduced into evidence a schedule pur-
porting to show the comparative packing efficiency of the five packers,
during the period from June 1 to June 18, 1937. Office Manager
Meeker testified as to the contents of the time slips of these packers.
The time slips purport to show the number of hours spent by each
packer in the packiing and shipping department or on the truck during
28 At the hearing counsel for the California corporation stated that Young 's employment
was finally terminated on June 18.
29 Young testified and Atwood denied that Atwood also stated that " it wasn't his fault that
[Young] was being laid off, that some of the others didn ' t want to keep [ Young] on." We
need not resolve this conflict.
ANDREW JERGENS CO. OF CALIFORNIA , 477
the same period. Meeker's testimony shows that Young, Joseph
Mulleda, and Ed Yingling, three of the packers, spent the`same num-
ber of hours in the shipping department during that period, that
Norman Heywood,-another packer, spent 5 more hours in that depart-
ment than the other packers, and that Palmerisspent 'S hours less.
The schedule in evidence compares the packing performances of the
five employees in three respects, and, if accepted at face value, shows
that Young occupied third, fourth, and fifth places, respectively, as
to the three criteria of measurement. Palmer occupied third,'fifth,
and fifth places, respectively.30 None of the other packers occupied
three places of equal or lesser rank than Young.' Since the weight
attaclied by the management to each criterion_ does not appear, and
since each packer did not work the salve number of hours in ' the
shipping department during the period in question, we have no means,
of ascertaining whether the management would have inferred from
the schedule and the time slips, taken at face value, that Young was
the least efficient employee. Moreover, the schedule cannot be taken
at face value because it purports to compare packing performances
only, whereas at times packers engaged in non-packing work too:
Thus packers, including Young, were at times sent into the receiving
division of the shipping department. Also, Palmer testified, and un-
der the circumstances, we find, that during the weeks prior to his
discharge, Young spent considerable time doing clean-up and other
work. Thus, the comparison as to packing performance is deficient
in that neither the schedule nor the time slips reveal how much time
the employees actually spent in packing work, and the comparison
as to general performance is incomplete- in that, the record 'does not
show how Young compared with his fellow employees in non-packing
work. Finally, the schedule upon which the California corporation
relies now to justify its selection of Young for discharge was not
prepared until after Young's discharge, and it. only covers a,short
period prior thereto. We conclude. that the schedule and time slips
do not prove, that the California corporation determined to.discharge^
Young upon.the basis' of efficiency.
In view of the foregoing conclusion, the statements and conduct of
Atwood and Russell on the day of the ' discharge, the unexplained
failure of the California corporation to consider seniority in- the case
of Young, and its anti-union policy as shown by this record, we are
convinced that it selected Young for discharge' because he engaged
in union and other concerted activity.
We find that the California corporation discriminatorily discharged
Ed Young and-failed and refused to reinstate- hint because of his
'"The schedule shows Young in next to last place as to weight packed. and,Palmer in
last place ; Young in-third place as to number of cartons packed and Palmer in last place ;
Young in last place as to number of invoices packed, and Palmer in third place
478 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
union and other concerted activities, and thereby discouraged mem-
bership in a labor organization and-interfered with, restrained, and
coerced its employees:iii-the.exercise of rights guaranteed in Section 7
of the Act. -
After his discharge until September 1937 Young earned about $106
at temporary work. In September 1937 he was employed by, the
National Cable and Metal Company, Glendale, California, at first
receiving $15 a week and, when laid off for a 2-week period at the
time of the hearing, earning $19-per week. At the latter employment
he earned $316.48. He stated at the hearing that he would accept
reinstatement to his former position. ,
2. The lay-offs, delayed reinstatements, and refusals to reinstate
between November 3,-1937, and January 31, 1938
The complaint alleges that on and after November 3, 1937, the Cali-
fornia corporation discouraged membership in the Union by discrimi-
nation in regard to the hire and tenure of employment of 42 named
employees, herein sometimes referred to as charging employees.
a. General
Production in the soap, department was curtailed on and after No-
vember 3, 1937. Production in the cosmetics department, which is
divided into the cream and powder, departments, and work in the
shipping department, slackened in the middle and latter part of
November. Inventory was taken at the plant for 2 or 3 days follow-
ing November 25, while operations were curtailed or at a standstill.
The California corporation contended in its answer and at the hear-
ing that the 42 -charging employees were laid off solely because of
business conditions." • It contended further that production was cur-
tailed throughout the month of November 1937 and thereafter, (1)
,because orders had fallen off and the amount of shipments had de-
clined, and (2) because its customary'reseiNie stock had been built up.
A notice was posted in the plant on November 5 'stating, that curtail-
ment would take place because of a falling off of orders. As to the
first alleged cause for curtailment, the record shows that shipments of
the California corporation's product amounted to $129,898.37 in Octo-
ber, $97,602.35 in November, and $41,596 01 in December. This proof,
however, is in terms of the average shipments throughout the above
months, and does not show how much of the slump in shipments, if
Among other things, counsel for-the California corporation sought to prove at the
hearing that many of the employees had been employed on a temporary basis during a rush
period imthe plant eaily in 1937: The evidence shows that the number of employees'on the
pay roll in July was the same as the number in January,. prior to the rush period. Aside
from that fact, however, the relevant inquiry is, not whether the employees were temporary
or permanent, but why they v, ere laid off.
ANDREW JERGENS CO. OF CALIFORNIA 479,
any, occurred during the first part of November, when the curtailment
in4he soap department. took place.. As to the. second alleged reason
for the curtailment, Rothenberg testified that he thought the California
corporation had almost built up its reserve stock by the end of Novem-
ber 1937. Rothenberg also testified that toward the end of 1937 and
during the first few months of 1938 the management was compelled
to reduce its inventory of certain products because of impending
changes in the packaging of such products.
We may assume for the purposes of this case that the California
corporation for business reasons required fewer employees after Octo-
ber 1937. By such assumption, however, we have by no means dis-
posed of the allegations of discrimination, since we must consider
further, whether or not the selection of employees for retention and
reinstatement involved discrimination against the Union.
All of the charging employees were members or applicants for
membership in the Union. The California corporation had knowl-
edge of the activity in or affiliation with the Union, or lack of affiliation
or sympathy with the Independent, of its employees. The Rothen-
berg memorandum shows such knowledge. As noted above, the No-
vember 8 meeting of the Union was spied on by Assistant' Superin-
tendent,-Atwood,and Foreman Van,-Hove. -Many employees refused
to sign the petition for membership in ,the Independent. Also as
noted above, signed 'petitions were placed on the desks of Foreladies
Santella and Eckland. Other evidence referred to below likewise
shows that management representatives had knowledge of the union
sympathies of charging employees.
The lay-offs were preceded by a speed-up of production in the
various departments during the latter part of October. As indicated
above, this speed-up was accompanied by statements of supervisors
hostile to the Association's demand for a wage increase. We believe
that the California corporation designed the speed-up at least ' in
part for the purpose of creating a work slack, so that 'it could lay
off 'union sympathizers.
Managerial employees testified that lay-offs during the,period under
review, as in the past, were made on the basis of efficiency and that
seniority was not considered. Superintendent Geneau testified that
he instructed Joyner and Atwood to lay off employees-in accordance
with efficiency and that the procedure was followed in every depart-
ment. Joyner and Atwood testified, however, that seniority was con-
sidered in the shipping department as set forth below.' Moreover,
Rothenberg 'testified that Florence Lapask and Emma Rogers, who
were transferred from the soap to the cream department to replace
two "agitators" there, were not laid off because they were "older
girls", and had been employed for a long time. Rogers, who appeared
at the hearing as a witness for the California corporation, testified
480 DECISIONS, OF NATIONAL LABOR RELATIONS` BOARD
that she was transferred, and not released, because she was one of
the senior employees and that she thought that it was-the manage-
ment's practice to lay off junior employees and retain senior em-
ployees during slack periods. It appears from the testimony of at
least two other- employees, Eudalia Watkinson and Mildred Gribble,
that that in fact had been the California corporation's practice in
previous years. Manager Russell's remark to Young, that some of
the junior employees were being laid, off, will be recalled in this con-,
nection. We conclude from. all the evidence that the California cor-
poration's practice was to consider, if not strictly follow,' seniority;
in laying off and reinstating employees.
The lay-off of many employees Whose union sympathies ran counter
to the California corporation's labor policy, as contrasted with, its
retention in comparable positions of other employees who had less
seniority and who were not shown to be more efficient, further shows
that the California corporation engaged in discrimination.
We have noted above that following the formation, of the Union
supervisory employees made statements to employees that "it would
go hard With those" who joined the Union and that the plant would
shut down as a result of the formation of, or affiliation of employees
with, the Union. These statements, the Rothenberg memorandum,
and the further evidence set forth below also convince us that the
California corporation discriminated against many, of the charging
employees, by laying them off, delaying their reinstatement, or refusing
to reinstate them:
b. The lay-offs in the soap, shipping, and cosmetics departments, on
November 3 and 5, 1937; the lay-off of Lena Holmes from the soap
department on November 16, 1937
On November 3 and 5, 1937, the California corporation, laid off 22
employees from the soap, shipping, and cosmetics departments. Of
these, 21 were affiliated with the Union. The anti-union bias which
motivated these lay-offs appears clearly 'from the following portions
of the Rothenberg, memorandum :
Last night we layed off 5 girls in the Soap Dept. & we'll,prac-
tically close this Dept. down next week-leaving some of the Hand
Wrappers & 3 men on to clean up etc. This will give us an open-
ing to close down the Dryer for the week and lay Blackman the
dryerman off (one of the AFL men). In the shipping room 'we
will lay off 2 packers inc. Palmer. We'll move 2 of the girls from
the Soap Dept. up to the Cream Dept. and lay off 2 girls there,
(Both agitators). By this move we hope to have a clean slate
if the NLB step in & it will not delay our shipments a particle.
Have about 4300 gr. 337 in stock and a satisfactory stock of-other
ANDREW JE'RGENS CO. OF C'ALIFORL\TTA 481'
soaps. Expect to resume full operations Dec. 12th. We are
hoping to lick this AFL gang, . . . Have explained to the em-
ployees some of the actual facts re our intentions and what they
may expect from the Union. . I am hoping some facts will sink in.
(1) Soap department
-On November 3 and 5 the California corporation laid off 18 of the
32 32 employees in the soap department. At the time of the lay-off
there were 21 union members or applicants for membership, in that
department. The 18 laid off from this department were such members
or applicants and are named in the complaint.
Of the 32 employees, 23 were women, and 15 of the 23 were members
of, or applicants -for membership in, the Union. Fourteen of the
fifteen were laid off on November 3' or 5, and the remaining woman
union member, Lena Holmes, was absent on vacation from November 8
through November 14 and was,laid off on November 16. Two women
employees, Florence Lapask and Emma Rogers, both non-union em-
ployees, were transferred to the cream department. The remaining
women employees in the soap department, 2 of whom were absent due
to illness, and all of whom were non-union employees, were not laid
off. Of 9 men employees in the soap department on November 5,
6 were union members or applicants and 4 of them were laid off on
that date.
In view of the Rothenberg memorandum disclosing the anti-union
bias underlying soap department lay-offs, the disproportionate num-
ber of union members laid off from the soap department, the retention
or reinstatement in many cases of non-union members having less or
no greater seniority than union members who were laid off or not rein-
stated, the speed-up designed in part to create a work slack, the Cali-
fornia corporation's hostility toward the Union, its sponsorship of
the Independent, and the other facts set forth herein, we find that the
following 19 employees were discriminatorily laid off from the soap
department in November 1937.
Florence Arnold was hired by the respondent in March 1936 in the
soap department. She applied for membership in the Union on Octo-
ber 30, 1937. She was laid off on November 5 and reinstated on
November 22, 1937.33 We find that she was laid off because of her
32 This figure does not include Harold Gratias who appears on the pay roll under the soap
department , and who was transferred to the shipping department about October 20, or
Egbert Sieckert, a maintenance employee, or William Weitzel, a fireman, the latter two also
appearing on the pay roll under the soap department.
33 Arnold , among other soap -department employees , was also laid off on November 24 and
did not work during the in% eatery period It appears , however , that most employees were
normally laid off during inventory periods, each of which generally lasted 2 or 3 days.
We shall not discuss these lay-offs except where they are alleged in the complaint to be
discriminatory , or appear to be a continuation of discrimination against employees previ-
ously discriniinatoiily laid off.
481039-42-vol. 43-31
482 ` DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affiliation with the Union. As a soap-press operator Arnold earned
471/2 cents per hour at the time-of her lay-off. When doing other work
she earned 421/2 cents hourly.
William G. Blackmon was hired in August 1934, in the shipping
department. He worked steadily until his lay-off on November 5,
1937, when he was engaged in operating the soap drier in the-soap
,department. He was reinstated on November 22.
In and after April 1937 Blackmon had discussed in the plant with
other employees the matter of wage rates and organization of the
employees. As noted above, Forehidy Odle had threatened to "get
even with" Blackmon at the second meeting of the Association on
June 21 after he had objected to her being nominated for office. -At
the meeting of the Association of October 4 Blackmon urged employees
to vote, in favor of adoption of the resolution requesting increased
minimum rates of pay. Blackmon's action' "disgusted" Farral, his
.foreman, who was present at the meeting. Farral consequently re-
-signed` from the Association following the meeting, and informed
,Blackmon that he and other employees were "agitating." Blackmon
;joined the Union at its formation on October 25,,and became a leader
therein. He was active in' soliciting employees for membership in
the Union at the October 25 meeting and thereafter. During his lay-
.off he attended, a conference between the management,and the Union
on November 11, 1937, which is discussed below.
'General Manager Rothenberg admitted that Blackmon's operation
-of the soap drier was satisfactory. Blackmon was laid off although
.he had seniority over Oscar Nevins, another employee in the soap
'department. ' Nevins signed an application for membership in the
-Union but he also joined the Independent "when it first started" and
-later withdrew from the Union. Blackmon had in the past operated
-the pin-press plodder, which Nevins operated and could also do other
--work which Nevins did. There is no evidence that Blackmon was less
'efficient than' Nevins.
Blackmon was expressly named in the Rothenberg memorandum as
`-`one df,the •A. F.,of L. men." General Manager Rothenberg admitted
that it^•was his--impression that Blackmon was in the same category
as the "agitators" referred to in the memorandum. We find that
he was laid off on November 5, 1937, because of his membership and
activity in the Union. At the time of his lay-off Blackmon was
earning $27 weekly. During his lay-off he had no other employment.
Glen Campbell was hired on September 14, 1936, in the soap depart-
,ment,and worked continuously until his lay-off on November 5, 1937.
He was reinstated on December 28.
During the course of his employment he never received any com-
plaints about his work. He became affiliated, with the Union on
ANDREW JE'RGENS CO. OF CALIFORNIA 483
October 28, 1937. We find that Campbell was laid off on'November
5 because of his affiliation with the Union:-
At the time of his lay-off Campbell earned $26 weekly. He had
no other employment during his lay-off. -
Lola Cox was hired by the respondent on March 9, 1936, in the
soap department. She was laid off on-November 5, reinstated on,
November 15, again laid off on November 16, and reinstated on Novem-
ber 22, 1937. She applied for membership in the Union'on November
3. We find that Cox was laid off on November 5 and November 16,
1937, because of (her affiliation with the Union.
L. H. Eddington was hired on February 3, 19a7, in the shipping
department. He was laid off from the soap department on Novem-
ber 5, 1937. At the time of the hearing he had not been reinstated.
He received no complaints about his work from any supervisory
employee, during the course of his employment. Between February
3 and November 5, 1937,he received four wage increases. -
He applied for membership in the Union on October 27 and attended
meetings thereof. During the week following October 25 Brauns-
dorf solicited Eddington to sign the Independent petition. Edding-•
ton refused to sign the petition. As noted above, during the same
week Edcbngton's foreman, Farral,, informed him that the manage-
ment would close'the plant if there were "labor trouble." On another
occasion during the same week one Lally, an employee in the soap
department, remarked in the presence of Farral and Eddington that
the employees who had affiliated with the Union would not improve
their condition but would make matters worse for themselves. Farral
concurred with the statement, "Yes, of course."
When he was laid off on November 5 by Farral, the latter stated
that Eddington would be recalled when he was wanted. He has
never been recalled. On three different occasions in-1937 after Novem-
ber 5.Eddington applied for reinstatement without success.
We find that the California corporation laid off Eddington on
November 5, 1937, and thereafter failed and refused to reinstate him
because of his affiliation with the Union, and his lack of affiliation with'
the Independent. _
At the time of his lay-off Eddington earned $23 per week. Since
November 5 he has worked several Saturday afternoons for his brother,
receiving therefor a share of stock, the value of which he.did not know.
He desires reinstatement to his former position.
Site Fields .was hired on September 10, 1936, in the soap department
She was laid off on November 5, and reinstated on November 22, 1937
She applied for membership in the Union on October 30, and there-
after attended all union meetings, including the meeting of November
8 on which Assistant Superintendent Atwood and Foreman Van Hove
484 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
spied. On or about November 1 Ruth Eckland, sister of -Forelady
Gladys Eckland, came to the door of the dressing room where Fields
and other girls were present and asked the group whether ' any of
them wanted to sign the Independent petition. No one made any
reply except Mildred Gribble, a soap-department employee, who
stated that she did not care to sign' the petition. As noted above,
signed petitions were placed on the desks of Foreladies Eckland and
Santella.
We find that Fields was laid off on November -5, 1937, because of her
affiliation with the Union, and her failure to affiliate with the Inde-
pendent.
Mary Gracey was first employed on January 27, 1937, in the soap
department at $12 per week. She was laid off on November 3, 1937,
at which time she was earning $17 per week. During the course of
her employment she received no complaints about her work. Indeed,
on a few occasions she -received compliments from Forelady Eckland
and 'Assistant -Forelady Nichols.
Gracey applied for membership in the Union on October 30, and
thereafter attended meetings thereof. She was among the group of
employees who were solicited in the dressing room by Ruth Eckland
to sign the Independent petition. As noted above none in the group
signed the petition.
Although Forelady Eckland told Gracey 'when she was laid off,
on November 3, that she would want Gracey back soon, and would
call her, Gracey was not reinstated. She was not recalled although
Phoenix, non-union employee with equal seniority, who had been' ab-
sent due to illness, returned to work in the soap department on
December 28. Phoenix worked on the Woodbury wrapper. Gracey
had in the past worked on the Woodbury wrapper. There is no
evidence that Gracey was less efficient than Phoenix.
We find that the California corporation laid off Gracey on Novem-
ber 3, 1937, and thereafter failed and refused to reinstate her, because
of her affiliation with the Union, and her failure to affiliate with the
Independent.
Since her lay-off Gracey has not found other employnient. She
desires reinstatement to her former position.
Melba Grafstrom was hired in the soap department on January 27,
.1937. She was laid off on November 3, 1937, and at the time'of the
hearing had' not been reinstated.
During the course of her employment she received no complaints
.about her work. On one occasion, after she had worked for 3 weeks in
the cream department, Forelady Santella told her that she was sorry
Grafstrom was returning to the soap department, since Grafstrom's
work had been satisfactory.
ANDREAV" JERGENS CO. OF CALIFORINIA ' 485
Grafstrom became affiliated with the Union on October 30, and
thereafter attended one or two meetings thereof. About November 1
she refused to sign the Independent petition,-upon being solicited by
Ruth Eckland. On November '2 Assistant Forelady, Nichols asked
her why she did not sign the petition and whether she wanted to work
or not. Grafstrom told her she was in favor of the Union. -
When she was laid , off on November 3 Forelady Eckland • told
Grafstrom that her lay-off was temporary, and that she would call her
back. Grafstrom applied for reinstatement in the latter part of De-
cember 1937 without success. . She was not recalled although Phoenix,
non-union employee with equal seniority, who had been absent due to
illness, returned to work in the soap department on December 28.
Both Phoenix and Grafstrom worked on the Woodbury wrapping
machine and the former had in the past been laid off more - often than
Grafstrom.
We find that the California corporation laid off Grafstrom on
November 3, 1937, and thereafter failed and refused to reinstate her,
because of her affiliation with the,Union, and her refusal to join the,
Independent.
At the time of her lay-off Grafstrom earned $17 per week. There-
after she was employed temporarily at household work for which she
received $10 weekly-plus board whosevalue was estimated by her at $4
or $5 weekly. -
Mildred Gribble was first employed in the soap department on Sep-
. tember 15, 1936, at $9 per week and at the time of the hearing in
January 1938, she was earning $17 per week. Between September 15,
1936, and November 5, 1937, she was laid off for only 1 day. Gribble
was laid off on November 5 and reinstated on December 15, 1937.
She applied for membership in the Union on October 30, and there-
after attended all meetings thereof. About November 1 ,she refused
to sign the Independent petition, upon being solicited by Ruth Eck
land.
We find that Gribble was laid off on November 5, 1937, because of her
affiliation with the Union, and her refusal to join the Independent.
Jean Mills was hired on January 27, 1937, in the soap department.
She was laid off on November 5, reinstated on November 15, laid, off
again on November 16, and reinstated on November 23, 1937.
She applied for membership in the Union on November 3, 1937, and
attended one meeting thereof in the middle of November.
We find that Mills was laid off on November 5 and November 16,
1937, because of her affiliatioin with'the Union.
C. F. Murphy was hired on February 26, 1934 , in the shipping de-
partment. He was laid off on November 5, 1937, at which time he was
working in the soap department. He was reinstated on December 1,
1937.
486 \ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In June 1937 Superintendent Geneau told Murphy that he would
eventually be promoted to Foreman Farral's position and that Farral
would be promoted also.
Foreman Farral "had an idea" immediately after the October 4
meeting of the Association that Murphy and Blackmon were engag-
ing in union activities. Following the meeting Farral informed
Blackmon that he 'and other employees were. "agitating." Murphy
applied for membership in the Union on October 25 and thereafter
attended meetings• thereof. On November "11, during his lay-off,
Murphy, as a "representative of the Union, attended the conference
with the management referred to below.
Murphy was laid off on November 5, although Nevins, having less
seniority than Murphy-,was not laid off. Nevins signed an applica-
tion for membership in the Union but he also joined the Independent
when it was first organized and later withdrew from the Union. After
the lay-offs of Murphy and Eddington, Nevins operated both the
Woodbury plodder and the pin-press plodder, machines previously
operated by Murphy and Eddington respectfully. Murphy, with
more, seniority than Nevins, could also operate and had in the past
operated, the pin-press plodder, and could also do other work
done by Nevins. Farral testified that Murphy was not as efficient on
the pin-press plodder as Nevins. Farrall admitted that Murphy was
"fairly good at it." On this record we do not credit Farral's testis
mony that Murphy was not as efficient on the pin-press plodder as
Nevins. I
We find that Murphy was laid off on November 5, 1937, because of
his affiliation with the Union. At the time of his lay-off on November
5, he earned $27 per week.
Shea Paysinger was hired on January 26, 1937.' She was laid off
on November 5, 1937, from the soap department, reinstated on Novem-
ber 15, laid off again on November 16, and reinstated on November 22,
1937.
During the course of, her employment she received no complaints
about her work. On at' least one occasion Forelady Odle told her
that she was a very good worker.
'Paysinger became affiliated with the Union on October 30, and there-
after attended meetings thereof. "
We find that Paysinger was laid off on November 5 and November
16, 1937, because of her affiliation with the Union.
Ilene Pillow was hired on September 10, 1936, in the soap depart-
ment. . She was laid off on November 3, and reinstated on December
16, 1937. '
During the course of her employment she received no complaints
about her work. She was never laid off prior to November 3.
ANDREW JERGE'NS CO. OF CALIFORNIA 487,
On October 30, 1937, she affiliated with the Union and thereafter
attended meetings.
We find that Pillow was laid off on November 3, 1937, because of her
affiliation with the Union.
Ruth Rhoads was hired on September 21, 1936, in the soap depart-
ment. She was laid off on November 5 and reinstated on November 22,
1937.
During the course of her employment she received no complaints
about her work. She affiliated with the Union on October 30, 1937,
and thereafter attended all meetings thereof except one.
We find that Rhoads, was laid off on November 5, 1937, because of
her affiliation with'the Union. At the time of her lay-off, she earned
$17 weekly.
Betty Rowe was hired on January 27, 1937, in the soap department.
She was laid off on November 3 and reinstated on December ,16, 1937.
During the course of her employment she received no complaints
about her work; in fact, she received, compliments from Assistant
Forelady Nichols.is., She received three or four wage increases during
her employment.
- On October 30 she affiliated with the Union and thereafter attended
meetings thereof. On or about November 1 she refused to sign the
Independent petition which Ruth Eckland presented to a group of
girls in the rest room, as noted above. She attended the November 1
meeting of the Association, but left before adjournment.
We find that Rowe was laid off on November 3, 1937, because of her'
affiliation with the Union, and her refusal to join the Independent.
At the time of her lay-off she earned $17 per week.
Arlene Stewart was hired on October 5, 1936, in the soap department
at $9 per week. When she-was laid off on November 5, 1937, she
earned $17 per week: She received no complaints 'about her work
during the course of her employment. She was reinstated on De-
cember 15, 1937.
She affiliated with the Union on October 30, and thereafter attended
meetings thereof. She attended the Independent meeting of Novem-'
ber 1 but left before adjournment.
We find that -Stewart was laid off on November 5, 1937, because
of her affiliation with the Union, and her lack of interest in
the Independent. - ,
During her lay-off she had no other employment.
Dolores Tian loth was hired on October 5, 1936, in the soap de-
partment. She was laid off on November 3, and reinstated on
December 15, 1937.
During the course of her employment she received no complaints
about her work. She received about seven wage increases.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 30 she affiliated with the Union, and thereafter attended
meetings thereof.
We find that Van Holm was laid off on November 3, 1937, because
of her affiliation with the Union.
Eudalia Watkinson was hired on `January 17, 1933, in the soap
department. She was laid off on November 5, reinstated on,November
15, laid off again on November 16, and reinstated on November 22,
1937. -
She applied for membership in the Union on October 30, 1937. We
find that Watkinson was laid off on November 5 and November 16,
1937, because of her affiliation with the Union.
Lena Holmes was first hired on February 2,1925, in the soap depart-
ment, left her employment on September 1, 1928, and returned to work
on September 1, 1931. She was laid off on November 16, 1937. The
week prior thereto she was absent on vacation. She was reinstated on
November 22, laid off again on November 24, and reinstated on Decem-
ber 1, 1937. The last period of her lay-off, November 24 to December
1, was during the time inventory was taken at the plant.
During,the course of her employment Holmes received a number of
compliments about her work from General Manager Russell, Super-
intendent Geneau, Assistant Superintendent Shopman, and Forelady
Eckland. Occasionally she received a complaint about her work from
Foreman Van Hove. -
Holmes applied for membership in the Union on October 30, and
thereafter attended meetings thereof. About November 1 she was
solicited by Cordery to sign the Independent petition. She refused
and told him she was a member of the Union. -
When she was laid off on November 16 Holmes was the only woman
employee in the soap department affiliated-with the Union who had as
yet received no lay-off. We find that Holmes was laid off on that date
because of her affiliation with the Union, and her refusal to join the
Independent.
Holmes was laid off again on November 24, and was off during the
inventory period, although in previous years she had always been asked
to assist in taking inventory. Forelady Eckland admitted that
Holmes' lay-off during inventory in November 1937 was the first such
lay-off in approximately 3 years. She testified without explanation
that she had no work for Holmes during inventory in 1937, although it
appears that inventory was taken as usual. Under the circumstances
we are convinced that she was again laid off on November 24 because
of her affiliation with the Union, and her refusal to affiliate with the
Independent. We so find.
At the time of her lay-offs Holmes was earning 471/2 cents per hour
while operating the Woodbury wrapping machine and 421/2 cents per
ANDREW JERGENS CO. OF CALIFORNIA 489
hour at other work. During her lay-off between November 16 and 22,
1937, she had no other employment.
(2) Shipping department
On November 5, 1937, the California corporation laid off two em-
ployees in the shipping department, Ralph Palmer and Harry Atwood.
Atwood quit the respondent's employ shortly after his lay-off, and the
is not the subject of complaint in this proceeding.
Ralph Palmer was hired on February 2,1937, in the shipping depart-
ment at 45 cents per hour. He was laid off on November 5, 1937, when
he earned 55 or 571/2 cents per hour. He has not been reinstated.
In and after April 1937, Palmer and other employees engaged in
discussion concerning the formation of a labor organization. As noted
above, on or about May 1 and June 10 Prior, A. F. L. representative,
spoke to Palmer and other employees about organizing a union. There-
after Palmer was elected president of the Association. He led in the
effort to make the Association independent of management representa-
tives, and then to dissolve it. Palmer was a leader in the formation of
the Union, and after its formation on October 25 became its president.34
At the time of his lay-off both General Manager Rothenberg and
Foreman Joyner of the shipping department knew that Palmer was
actively engaged in promoting the Union.
The California corporation adduced testimony at the hearing which
purported to show that Palmer was employed to undergo a training
period in the shipping department, and then to become a salesman;
that his work was terminated on November 5 after he refused the
offer of a salesman's job, and that this refusal was a factor which led
to his lay-off. The California corporation does not explain why
Palmer's refusal did not cause his discharge, instead of his lay-off.
The record shows that Palmer was considered to be "sales material".
when he was employed, and that the shipping department was a train-
ing ground for salesmen of the Jergens Woodbury Sales Corporation
of California, although not all employees employed in the shipping
department were hired with a view to becoming salesmen. Shortly
after his employment in February 1937 John Henry, sales manager of
the sales corporation, visited Palmer and discussed with him in gen-
eral the matter of sales work. According to Henry, Palmer did not
seem to follow up his "lead," and it appears that Henry abandoned
the idea that Palmer would become a salesman. It is significant that
Henry did not again broach the subject of sales work to Palmer until
October 1937 after Palmer had become active in attempting to make
the Association an organization independent of the management. At
" The record does not reveal upon what date Palmer became president.
490 / DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that time Palmer refused the offer of a salesman's job for the reason,
among others, that he did not want to desert the Association, since the
California corporation had not yet answered the Association's request
for a wage increase. We are convinced that the offer of a salesman's
job to Palmer in October was the first,attempt by the California cor-
poration to rid itself of him because of his militancy in the Associa-
tion.35 We conclude that Palmer was not laid off on November 5 be-
cause he refused a salesman's position.
The California corporation also adduced testimony purporting to
show that Palmer was absent from his work on numerous occasions
prior to his lay-off while.visiting other departments in the plant and
that such conduct on his part was a factor which led to his lay-off.
The evidence shows that Palmer on a number of occasions prior to his
lay-off visited departments other than his own during working hours
for 2 or 3 minutes at a time. Other employees also paid such visits,
and the practice had been going on long before the formation of the
Association or the Union. Atwood testified he saw Palmer absent
from his post as early as June, and admitted that Palmer was not
the only one who at times absented himself from his place of work.
It does not appear that any other employees were laid off or discharged
for this reason. We conclude that Palmer was not laid off on Novem-
ber 5 because he at times absented himself from his place of work.36
Foreman Joyner testified that in selecting employees to be laid off
in the shipping department he considered ability, seniority, and marital
status. The record does not show whether Palmer was married.
Palmer had over 6 months more seniority than James Craig, a
shipping-department employee who was retained on November 5.
Craig was employed in the receiving division of the shipping depart-
ment. He also did packing, although he was not a regular packer,
and he likewise worked on the truck. Palmer, besides being a packer,
.also did receiving work and worked on the truck. Craig replaced
Palmer on the truck about October 20, 1937. Joyner testified that
Palmer was taken off the truck because he spent 2 hours more than
he should have on one trip to Los Angeles. Palmer explained to him
on that occasion that he had difficulty in finding a parking space.
Joyner admitted that he himself had had parking difficulties when on
a trip in Los Angeles. Palmer stated at the hearing that he thought
that he had been taken off the truck because the management con-
sidered it would be easier to lay him off if lie were packing, since
the lay-off of a packer could be attributed more conveniently to a
slackening of business. The record does not show that Palmer was
a .less efficient employee than Craig.
"Cf . N. L. R. -B.N. American Potash and Chemical Corp, 98 F. ( 2d) 488 (C. C. A. 9).
38 Cf. N. L. R. B. v.'Botany Worsted Mills, Inc, 106 F. (2d) 263 (C. C. A. 3).
ANDREW JERGENS CO. OF C'ALIFORINEA 491
The California corporation introduced into evidence schedules sim-
ilar to that referred to in the case of Ed Young, covering the periods
from June 1 to June `18, October 1 to October 20, and from October
21, -to November 5, 1937. 'Office Manager Meeker testified as to the
contents of the time slips of the, packers during those periods. The
time slips purport to show the number of hours spent by each packer
in the packing and shipping department- or on the truck during those
periods. During the period from June 1 to June 18 Palmer spent
7i -8 hours less time in the shipping department than the other
packers. During the period from October 1 to October 20 he spent
28 hours less tine- in the shipping department than the other packers.
During the period from October 21 to November 5, he spent' 2 hours
less time than the other packers in the shipping department. The
schedules, compare the packing performances of the packers in three
respects. If accepted, at face value they show that Palmer, for the
periods June 1 to June 18 and October 1 to October 20, occupied
third, fifth, and fifth places, respectively, as to the three criteria of
measurement. For the period October 21 to November 5, he occupied
third, third, and fifth places, respectively. ' For, this latter period,
immediately preceding his lay-off, the schedule shows that'Palmer
in- less time packed more in terms of weight and number of cartons
than Ralph Smith, another packer, although he phtckecl fewer orders.
Smith was retained on November 5. For the reasons stated above
in the case of Ed Young, we have no means of ascertaining whether
the management would have inferred from the schedules and the
time slips, taken at face value, that Palmer was'the least efficient
packer nor can the schedules be taken at face value. Furthermore,
the schedules upon which the California corporation relies. now to
justify its selection of Palmer for lay-off, except the schedule for
the period October 21 to November 5, were not prepared until after
Palmer's lay-off. Finally the schedules only cover relatively short
periods during Palmer's tenure of employment. We conclude that
the schedules and time slips do not prove that the California corpo-
ration determined to lay off Palmer upon the basis of efficiency.'
Palmer was expressly named in the Rothenberg memorandum in a,
context which plainly shows that Rothenberg planned to-select him
for lay-off because of his affiliation with and activity in the Union,
and his opposition to the continued existence of the Association.- This
conclusion is reinforced "by the remark of Foreman Van Hove, as
noted above, on December 6 to Helen Rogers that lay-offs were oc-
curring. because Palmer and Blackmon had not "let the Association
go just like they had started to" and that Palmer and Blackmon
would probably lose their jobs.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the California corporation laid off Ralph Palmer on
November 5, 1937, and thereafter failed and refused to reinstate him
because of his affiliation with and activity in the Union, and his
opposition to the Association and the Independent. -
At the time, of his lay-off- Palmer earned $23 to $27 weekly, de-
pending on whether or not he worked on Saturday. He has since
had several days of Christmas work, at which he earned $42.04. He
desires reinstatement to his former position.
(3) Cosmetics department
On November 5, 1937, the California corporation laid off two
employees- in the cosmetics department, Suzanne Adams and Kath-
erine Hayes, and replaced them by two other employees, Florence
Lapask and Emma Rogers who were transferred from the soap de-
partment. The following portion of the Rothenberg memorandum
will be recalled in this connection : "We'll move 2 of the girls from
the'Soap Department up to the Cream 3T Department and lay off 2
girls there (Both agitators). By this move Ave hope to have a clean
slate . . . We are hoping to lick this A. F. L. gang . . -." -We find
that Adams and Hayes are the "agitators" replaced by • Lapask and
Rogers.
Suzanne Adams was hired in the powder department on January
27, 1937, 'at $12 a week. She was laid - off on November 5, 1937, at
which time she earned $17 a week. She has not been reinstated,
although she applied for reinstatement in December 1937.
At the October 4 meeting of the Association, during debate over
the resolution requesting increased minimum rates of pay, Adams
challenged Braunsdorf's remark that the management had been fair
in avoiding lay-offs, and stated that it did lay off employees when
work was slack and that she had been laid off. ' Odle, her forelady,
objected to her statements in favor of the resolution and stated that
she, Odle, knew her girls were satisfied with the wages they received.
Odle denied that this incident had anything to do with Adams'
lay-off. In view of the Rothenberg memorandum we do not,believe
'her denial.
Adams affiliated with the Union on October 26. About November
1 she was solicited to sign the Independent, petition by Marion
Cameron. She refused to sign the petition.
On November 5 Adams was laid off, and was replaced by Florence
Lapask who was transferred to the powder department from the soap
department. Lapask was not affiliated with the Union at this time.38
""Cream department" and "cosmetics department " were often used inter chan geably.
38 Subsequently, on November 23, Lapask applied for membership in the Union.
ANDREW JERGENS CO. OF CALIFORNIA 493
Foreladv Odle testified that Adams was not reinstated because she
was inefficient and "half asleep most of the time"; that Lapask,proved
more` efficient; and that Odle and Forelady Santella decided `that
Adams was one of the slowest employees. In view of the Rothenberg
memorandum we do not credit this testimony.
We find that the California corporation laid off Suzanne Adams
on, November 5, 1937, and thereafter failed and refused to reinstate
her because of her affiliation with the Union and her refusal to join
the Independent. After November 5, Adams obtained temporary
work, at which she earned $16. She desires reinstatement to her
former position.
Katherine Hayes was hired on September 9, 1937, in the cream
department. She was laid off on November 5, 1937. She has not
been reinstated, although in November after her lay-off she applied
for reinstatement.
On November 1 she affiliated with the Union and in or about the
.first part of November attended a meeting of the Union.
On November 5 Hayes was laid off and replaced by E. Rogers who
was transferred from the soap department to the cream department.
E. Rogers was not affiliated with the Union.
Forelady Santella testified that Hayes was laid off because she
was not very efficient, did not watch her work very closely, and that
E. Rogers was "a good little worker up there." However, Hayes
received no complaints about her work. In view of the Rothenberg
memorandum, we do not credit Santella's testimony. We find that
the California corporation laid off Katherine Hayes on November
5, 1937, and thereafter failed and refused to reinstate her because of
her affiliation with the Union .
At the time of her lay-off Hayes earned $16 a week. Thereafter
she .obtained temporary work for 5 weeks and. earned, $16 a week.
She desires reinstatement to her former position.,
c. The lay-off of Grace Louise Bruce from the cream department on
November 12, 1937
Grace Louise Bruce was hired on September 10, 1937, when she
was informed that her employment might not be steady. Bruce was
laid off from the cream department on November 12, 1937, and told
that she would be recalled when needed. No other cream-depart-
ment employees were released at this time. She was reinstated on
January 13, 1938. .
Bruce applied for membership in the Union and refused to sign
the petition for the Independent. She attended no meetings of the
Union and engaged in no other union activity.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Production in. the cream department slackened during November.
'Upon her lay-off Bruce had the least seniority in the department and
it does not appear that she was more efficient than other employees.
We find that the record does not 'support the allegations of the
complaint that the California corporation discriminated in regard to
the hire and tenure of employment of Grace Louise Bruce because
she joined and assisted the Union.
d. Lay-offs from the cosmetics department • on November 24, 1937;
delayed reinstatements and refusals to reinstate thereafter
(1) Cream department
On November 24, 1937, the California corporation laid, off 20 em-
ployees in the cream department. At this time 24 employees were
working in that department.39 Fourteen of these employees were
affiliated with the Union. All 14 were laid off. Ten employees were
not affiliated with the Union. Six of these employees were laid off.'
The complaint alleges that the California corporation discriminated
in regard to the hire, and tenure of employment of 10 of the 14 em-
ployees affiliated with the Union. As noted above, production slack-
ened in the cream department in- November, Forelady Santella noted
the names and telephone numbers of the employees laid off and in-
formed them that inventory was being taken and that they would be
recalled. -
Leslie Chatfield was hired on January 26, 1937. He was laid off
from the cream department on November 24, and not reinstated there-
after. He applied for membership in the Union at the close of the
October 25 meeting of the Association. On the following.day his
foreman, Stephano, who had also attended the meeting the , day
before, stated to him that "it would go, hard with those" who joined
the Union. Thereafter Chatfield refused to sign" the Independent
petition and wore his union button in the plant.
Upon his lay-off Chatfield had the least seniority of the male
employees in his department 'and it does not appear that he was
more efficient than other employees.
E. H. Stolle, the only other male employee laid off in the cream
department on November 24, also affiliated with 'the Union -at the
October 25 meeting, and spoke in favor of an affiliated organization.
Stolle joined the Independent on November 29 or 30 and was re-
instated on November, 30. However, Stolle, to whom Chatfield was
31 This number includes E Rogers NN ho was transferred from the soap to the cream de-
partment ' on November 3, and Marie Worcester, who appears on the pay roll under the
powder department but who in fact was working in the cream department on November 24.
,ANDREW JERGENS CO. OF CALIFORNIA 495
next in seniority, had approximately 1 year's seniority over Chatfield.
Stephano testified that, Stolle was more efficient than Chatfield.
We find that the record does not support the allegation of the
complaint that the California corporation discriminated in regard
to the hire and tenure of employment of Chatfield because he joined
and, assisted the Union.
Lulu Johnson, Velma Rainwater, Helen Rogers, and Nancy Wil-
liams were among those laid off from the cream department on
November 24. Williams and Rogers were reinstated on December 6;
Rainwater and Johnson on December 13.
These four employees applied for membership in the Union. At
least two of.them, Rogers and Johnson, refused to sign the Independ-
ent petition. '
Upon or during their lay-off, these four employees had-no greater
seniority or apparent efficiency than non-union employees retained in
or reinstated to comparable positions on or after November^24.
We find that the record does not support the allegations of the
complaint that the California corporation discriminated in regard
to the hire and tenure of employment of Johnson, Rainwater, Rogers,
and Williams because they joiuled and assisted the Union.
Marie Worcester was hired in January 1934. She was laid off
from the cream department on November 24, 1937, and reinstated on
January 18, 1938. ' .
Worcester appears on the,pay roll under the powder department,
but the forelady of that department did not consider her to be a
member thereof. It appears that Worcester was a general utility girl
and worked throughout the plant.
Worcester became affiliated with the Union on October 25,,and
thereafter attended all meetings of the Union. She refused to sign
the Independent petition about November 1.
When she was laid off on November 24 Forelady Santella told her,
that inventory would be taken, that the lay-off might last 3 days or
a week, and that she would call her. Worcester applied for reinstate-
ment before Christmas, after she had discovered that other employees
had returned to work. Santella told her on this occasion that only
a few girls were working. As noted above Worcester was not re=
called until January 18.
Five cream-department employees having less seniority than
Worcester were reinstated before her. These employees were June
Baughman, Genevieve Calvert, and Winifred Sackett, each reinstated
on December 13, 1937; Vera Waid,'reinstated on December 14, 1937;
and Marie Trimble, reinstated on January 13, 1938. Baughman,
Calvert, and Sackett were never affiliated with the Union. Each, at
sometime, Joined the Independent. Baughman joined the Independ-
496 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent in November 1937. Waid signed an application card from mem-
bership' in the Union on October 30, but withdrew the following day,
and later joined the 'Independent. Trimble applied for membership
in the Union but later withdrew and joined the Independent before
her reinstatement. - -
After November 24 the cream-department employees who were re-
instated handled the work of both the cream and the powder depart-
ments. Foreladies Santella and Odle testified that selection for
reinstatment was based on efficiency throughout the cream and powder
departments. It is therefore significant that Worcester had worked
in both departments. On the other hand, Odle testified that Trimble
never worked in the powder department. As for Calvert, Odle could
not say definitely whether or not she had ever worked in the powder
department prior to November 24, and testified, "but I imagine she
has; most of the cream girls have.", Odle admitted that she would
have remembered if Calvert had worked in that department for any
period of time. As for Baughman, Odle was not certain but "imag-
ined" she did 'work in that department before November 24. Camp-
bell, employee in the. powder department, testified that Baughman
and Calvert never worked in that department prior to November
24. We find that Baughman and Calvert had not worked in the powder
department prior to November 24. These two employees were brought
into th at, department after their reinstatement, and there is evidence
that Baughman, because of her inexperience, retarded the operation of
boxing there.
Forelady Odle admitted that Worcester's work as a service girl in
the powder department was satisfactory. On one occasion Odle told
Worcester that she was, the best service girl at the plant. Odle testi-
fied that Worcester was not efficient on the belt in the powder de-
partment, since she was a nervous person, and that Odle had received
several complaints that Worcester had been "bossy" with other em-
ployees. Worcester, however, had received- no complaints about her
work. Upon this record and in view of Worcester's tenure of em-
ployment since January 1934, we do not credit Odle's testimony regard-
ing Worcester's deficiencies as an employee in the powder department,
insofar as this testimony purports to establish a reason for the delay in
reinstating Worcester.
There is no evidence, that Worcester could not perform the work
done in either cream or powder department by any of the five
non-union cream-department employees who were reinstated before
her. Although Santella testified that Baughman was an "exception
ally good" employee, and that Calvert was "a very' good worker,"
and Odle testified that Waid was "an all around girl," there is no
evidence that Worcester was less efficient. in either the cream or
ANDREW JERGE\S CO. OF CALIFORLN`IA 497
powder departments, than Baughman, Calvert, Waid, Sackett, or
Trimble.
Under the circumstances set forth above, including the prior re-
instatement of the above five -non-union employees, we'find that the
California corporation delayed the reinstatement of Worcester from
December 13, 1937, to January 18, 1938, because of her affiliation with
the Union, and her refusal to join the Independent.
During her lay-off, Worcester had no other employment.
June Brown was hired on October 6, 1936, at $9 a week. She was
laid off from the cream department on November 24, 1937, when she
was earning $17 a week. She has not been reinstated.
Brown' affiliated with the Union on November 2, and thereafter
became its recording secretary. About November 1 she refused to
sign the Independent petition.
,Forelady Santella told her on November 24 that the employees
would be off 2 or 3 days while inventory was taken and that they
would probably be called back Tuesday or Wednesday of the follow-
ing week. Brown was never recalled although she applied twice for
reinstatement. On the first occasion, shortly after Christmas, San-
tella told her she had no idea when the employees would be recalled
but that Brown was next in line to be recalled. A week or two later
Santella informed her that she needed no other employees.
Four cream-department employees having less seniority than
Brown were reinstated. These are Baughman, Calvert, Waid, and
Trimble. The facts with respect to them set forth in connection with
Worcester's case are also relevant to Brown's case.
Santella testified generally that Brown was not reinstated because
she was temperamental and would' express her dislike upon being
asked to do what she did not like to do. Brown received no com-
plaints about her work. In fact, she received compliments regarding
her work from Forelady Santella, Assistant Superintendent Atwood,
and Foreman Stephano. Under these circumstances we do not credit
Santella's-testimony as establishing,a reason for the refusal to rein-
state Brown. Although Santella testified that Baughman was an
"exceptionally good" employee, and that Calvert was a "very good
worker," there is no evidence that Brown was less efficient than or
could not perform the work of Baughman, Calvert, Trimble, or
Waid.
Under the circumstances set forth above, including the prior rein-
statement of the above four non-union employees, we find that the
California corporation, on and after December 13, 1937, failed and
refused to reinstate Brown because of her affiliation with and activity
in the Union, and her refusal to join the Independent.
481039-42-vol. 43-32
• 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since her lay-off, Brown has had no other employment. She
desires reinstatement to her former position.
- Clementine Bayless was hired in the powder department on Feb-
ruary 6, 1937, at $12 a week. She was laid off from the cream depart-
ment on November 24, 1937, when she earned $17 a week. She was
reinstated on January 13, 1938.
She affiliated with the Union on October 28, 1937, and about
November, 1 she refused to sign the Independent petition. As noted
above, between October 28 and November'5 Santella stated to Bayless
that the management would- shut its plant as a result of organization
by the Union.
When Bayless was laid off on November 24, Santella told her that
inventory would be taken, that Bayless would be laid off for 2 or 3
days, and that Santella was quite sure that the employees would be
recalled the following Tuesday or Wednesday. Bayless was not
recalled until January 13.
- Three cream-department employees over whom Bayless had seni-
ority, were reinstated before her. `These employees are Baughman,
Calvert, and Waid. The facts with respect to them set forth above
in connection with Worcester's case are. also relevant to Bayless' case.
Bayless- had worked in the powder department prior to Novem-
ber 24, whereas, as noted, Baughman and Calvert had not. Santella
admitted that Bayless was a "good worker." On one occasion- San-
tella told her when she was sent to the powder department that
"if [she] picked that up as easily as [she] had filling in the cream
machine [she] would do just fine." On another occasion Odle told
Bayless that she was efficient. Although Santella testified that
Baughman was an "exceptionally good" employee, and that Calvert
was "a very good worker," she did not expressly compare the rela-
tive merits of Bayless, Baughman, tnd Calvert. Upon the basis of
the record before us, and in view of the vagueness of Santella's testi-
mony in this regard, we do not credit her testimony insofar as it
by implication purports to establish that Baughman and Calvert
were more efficient than Bayless. - Although Odle testified that
Waid was reinstated because she was "an all around girl" there is no
evidence that Bayless was less efficient than Waid.
Under the circumstances set forth above, including the prior re-
instatement of Baughman, Calvert, and Waid, we find that the Cali-
fornia corporation delayed the reinstatement of Bayless from De-
cember 13, 1937, to January 13, 1938, because of her affiliation with
the Union, and her refusal to affiliate with the Independent.
Dorothy Holmes was hired on January 27, 1937, at $12 a week. She
was laid off on November, 24, 1937, when she earned $15 a week. She
has not been reinstated.
ANDREW JE'RGELNS CO. OF CALIFORMA 499
She applied for membership in the Union on November 3, 1937,
and thereafter attended two of its meetings. About November 1 she
'refused to sign the Independent petition.
When Holmes was laid off on November 24, Santella told her that
the employees would be off for a few days, that she doubted whether
it would be any longer than that, and that she would call. Holmes
back. Two weeks later Holmes applied for reinstatement and San-
tella stated she did not have the slightest idea when she would recall
Holmes.
Although Holmes was not reinstated, four cream-department em-
ployees with less seniority, namely, Baughman, Calvert, Waid, and
Trimble were reinstated. The facts with respect to these employees
set forth in Worcester's case are also relevant here.
Holmes received no complaints about her work during the course
of her employment. Although Santella testified, as noted above,
in regard to the' efficiency of Baughman and Calvert, and Odle
testified that Waid was reinstated because she was "an all around
girl" and could work in both cream and powder departments, there
is no evidence that Holmes was less efficient than, or could not per-
form,the work done by Baughman, Calvert, Trimble, or Waid.
Under the circumstances set forth above, including the prior
reinstatement of Baughman, Calvert, Trimble, and Waid, we find
that the California corporation failed and refused to reinstate Dor-
othy Holmes on and after, December 13, 1937, because of her affilia-
tion with the Union, and her refusal to affiliate with the Independent.
The record does not disclose whether Holmes has secured other
employment.- She desires reinstatement to her former position.
Virginia Reid was hired on January 27, 1937, at $12 a week. She
was laid off from the cream department on November 24, 1937, when
she earned $15'a week. She has not been reinstated.
She affiliated with the Union on October 27. About November 1
she refused to sign the Independent petition.
When Reich was laid off on November 24, Santella told her that she
would be off for a few days because inventory would be taken, and
that she would call her.
Reid was never recalled, although four cream-department em-
ployees having less seniority than Reid, namely, Baughman, Calvert,
Waid, and Trimble, were reinstated. The facts with regard'to these
employees have already been set forth and are relevant here.
Reid had done some work in the powder department. As noted
above, Baughman, and Calvert had not worked in the powder depart-
ment before November 24, were brought into that department after
their reinstatement, and Baughman retarded the operation of boxing
there. Reid received no complaints about her work. She received
500 DECISIONS OF NATIONAL
LABOR RELATIONS BOARD
compliments about it from Foreladies Santella and Odle. Santella
admitted that Reid "worked out all right, but she is not the best one"
and testified that she was nervous, and not as fast as "some of the.
other•glrls"; that there was no comparison between Reid and Baugh-
man, who was an "exceptionally good" worker, "picks on anything
quick . . . watches her work close and does not get nervous"; that
Trimble, among other things, worked on the capper, and was good
on the capper, that Reid had never worked on the capper, that she
did not think Reid would be good on it, and that training was
required to work on the capper. However, although Odle testified
that Waid was reinstated because she was "an all around girl" and
could work in both cream and powder departments, and Santella
testified that Calvert was a "very good worker," there is no evidence
that Reid was less efficient than, or could not perform the work done
by, either Calvert or Waid.
Under these circumstances, including the prior reinstatement of
Calvert and Waid, we find that the California corporation on and
after December 13, 1937, failed and refused to reinstate Reid because
of her affiliation with the Union, and her refusal to join the
Independent.
Since her lay-off, Reid has not had other employment. She de-
sires reinstatement to her former position.
(2) Powder department
Vera Campbell, Helen Dobbins, Jane Lansing, and Ruth Newman
were laid off in the powder department on November 24, and were
not reinstated. They, together with Lapask and Millie Watson,
whose cases are discussed below, comprised all the women employees
working in the powder department on November 24. All powder-
department employees were affiliated with the Union. Dobbins,
Lansing, and Newman refused to sign the Independent petition.
Newman informed Forelady Odle prior to her lay-off that she was
a member of the Union. Campbell was questioned by Forelady Odle
regarding her membership and told that she would be receiving less
money a month after she had been a member.
The record shows that the powder department was in operation
bet\yeen 40 and 60 percent less time in November, December, and
January than it was in October.
Watson, powder-machine operator, was not laid off. Watson, how-
ever, was also affiliated with the Union. She had seniority over the
other employees, and it appears that she was the most efficient. em-
ployee in the department.. Lapask, who had been transferred from
the soap to the powder department to replace Adams. whose case is
discussed above, was laid off on November 24 and reinstated Decem-
ANDREW JE'RGENS CO. OF CAIAFORINI'A 501
her 3. However, Lapask had seniority over the other employees, in
the powder department, and it does not appear that any of them was
more efficient than she was. She signed an application for mem-'
bership in the Union the day before she was laid off.
Campbell, Dobbins, Lansing, and Newman each had . at times
worked in the cream as well as the powder department and each
had seniority over cream-department employees Baughman, Calvert,
Trimble, and Waid, who were reinstated. The facts with regard to
the latter employees have already been noted above and are relevant
here.
Santella and Odle testified, in substance, that reinstatement of em-
ployees in the cream and powder departments was based on efficiency
throughout both departments; that the powder-department girls were
efficient only in the powder department, whereas the cream employees
were more efficient throughout both departments; that it had been the
practice for some time to use cream-department employees in the
powder department when there was not a full w'eek's work in the
cream department; and that the powder-department employees were
not reinstated because there were enough employees in the cream de-
partment who could handle the work of both departments.
With respect to the specific powder and cream employees here in
question, Odle testified that Newman's health interfered with her
work, and that Baughman was more efficient than Newman in per-
forming the latter's operations in the powder department. Santella
testified that Waid was a much faster wrapper than Newman. It
does not appear that the management ever in the past refused New-
man employment because of her health. As noted above, Baughman
had not worked in the powder department prior to November 24, and
thereafter retarded the operation of boxing, there. Odle testified,
further that Calvert was as good as or better than Lansing on work
in the powder department. As noted above, however,. Calvert had
not worked in that department prior to November 24. Odle also
testified that other employees in the cream department could do Dob-
bins' work in the powder department, as well as she. However, Odle
did not name any of such employees, and admitted that Dobbins was
a very good boxer. Odle also testified that Campbell was overbearing
and uncongenial with other employees.
Except as stated above, there is no evidence regarding the com-
parative merits in the cream and powder departments of powder em-
ployees Campbell, Dobbins, Lansing, and Newman on the one hand,
and cream employees Baughman, Calvert, Trimble, and Waid on the
other. In view of the fact that Campbell, Dobbins, Lansing, and
Newman each had worked in both cream and powder departments be-
fore November 24, whereas Trimble, Calvert, and Baughman had not,
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and in view of the other circumstances disclosed by the record, we do
not credit the testimony of Santella and Odle as establishing the real
reason for the refusal to reinstate Campbell, Dobbins, Lansing, and
Newman.
In'our proposed findings we proposed to dismiss the cases of Camp-
bell, Dobbins, Lansing, and Newman. The Union has taken exception
to this portion of the proposed findings. We are of the opinion that
the Union's e*ceptions are well taken.
Under the circumstances set forth above, including the reinstate-
ment of Baughman, Calvert, Trimble, and Wald, we find that the,
California corporation failed and refused to reinstate Vera Camp-
bell on and after December 13, 1937, because of her.affiliation with the -
Union, and Helen Dobbins, Jane Lansing, and Ruth Newman on and
after December 13, 1937, because of their affiliation with the Union
and their refusal to join the Independent.
e. Lay-offs from the shipping department between November 19
and December 1, 1937
andJ. R. Craig, Harold Gratias,41' Ralph Smith, Joseph Mulleda,
Norman Heywood. On November 19 the shipping department em-
,ployed• 10 employees. Five were members of the Union, 5 were,not.
Between November 19 and December 1 the 5 union members were laid
off, and the 5 -non-union members ti^ere retained. The 5 union mein-'
bers thus laid off are charging employees. Three of the 5-Smith,
Mulleda, - and Heywood-have been reinstated. Craig and Gratias
have not been reinstated.
At the October 25 meeting of the Association, Craig spoke in'favor
of- an affiliated organization. Smith and Heywood''refused to sign
the Independent petition. Prior to his lay-off Cordery informed
Smith that it would be better if he signed the Independent petition.
Heywood was told by Lee Heerman, maintenance employee who so-
licited him to sign the petition, that it was his last chance. Mulleda-
first wore his union button in the plant a week or two l rior to his
lay-off.
The record shows that shipments, of the respondent's products de-
creased in November and December.41
Joyner testified that his' selections for lay-off were based on effi-
ciency and seniority, among other things. The charging employees
40 Gratias appeared on the pay loll under the soap department He was transferred to
the shipping department about October 20, whether temporarily or permanently does not
appear He was woiking in the shipping department when laid off -
41 It appears that a new employee, Gasser, was employed in the shipping department-
about January 1, 1938 There is uncontroverted testimony , however , that he was hired as
a prospective salesman
ANDREW JERGENS CO. OF CALIFORNIA 503
had less seniority than the employees retained in the department and
it does not appear that they were more efficient than those retained.
We find that the record does not sustain the allegations of the
complaint that the California corporation discriminated- in regard
to the hire and tenure of employment of Craig, Gratias, Smith, Mul-
leda and Heywood for the reason that they joined and assisted the
Union.
f. Lay-offs from the soap department in January 1938
(1) January 5, 1938
On January 5, 1938, the Woodbury plodder in the soap department
was rendered inoperative by the burning out of a switchbox. The
California corporation thereupon laid off six employees who had
been discriminatorily laid off from the soap department in Novem-
ber 1937,.then reinstated.
Blackmon. After his reinstatement on November 22, Blackmon
wore his union button in the plant.- As noted above, on or about
December 6 Foreman Van Hove questioned Helen Rogers about
her membership in the Union, made disparaging remarks about
unions in general, stated that lay-off s were occurring because Palmer
and Blackmon had not "let the Association go just like they had
started to" and added that Palmer and Blackmon would probably
lose, their jobs.
Blackmon was laid off on January 5, was reinstated on January 7,
was again laid off on that date, and was called back to ,work on
January 12. He did not return, however, until January 18.11 -
Blackmon was laid off on the dates in question although Nevins,
with less seniority, who joined the Independent prior to January 5,
was retained. The record shows a considerable amount of inter-
changeability among employees engaged in various types of work
in each department in the plant. As noted above Blackmon had
in the past performed or could perform the work -done by Nevins,
Iand there is no evidence that Blackmon was less efficient than Nevins.
Fields. After her reinstatement on November 22, 1937, Fields was
again laid off on January 5, and reinstated on January 17, 1938.
At the time of the January 5 lay-off, Fields was working on a press
which received soap from the Woodbury plodder, and was laid off
with, other employees similarly engaged. However, Fields had done
other work in the past when the Woodbury press was out of order
or when there was no work to be done on it.
'Blackmon was again laid off on January 26 , 1938 There is no evidence that this lay-
off was discriminatory . We find below that Blackmon was discriminatorily discharged on
January 29 , 1938. -
504 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
Two soap-department employees, Jean Mills and Leona Phoenix,
with less seniority than Fields, were not laid off on January 5.
Phoenix worked on the Woodbury wrapping machine. Although
Mills was the operator of such a machine, she did' not operate it
during January, being engaged during that month, among other
things, in racking soap on the pin press. Fields operated presses
and picked-up soap; she had never worked on the Woodbury wrapper
but had in the past done the work` Mills was doing in January and
could do such work. At noted above, the record shows a considerable
amount of interchangeability among employees engaged in various-
types of work in each department of the plant. There is no evidence
that Fields could not perform the work of Phoenix. There is no
evidence that Fields was less efficient than Mills or Phoenix.
Phoenix was never affiliated with the Union and joined the Inde-
pendent at a meeting of that organization on January 3. Mills
signed an application for membership in the Union on November 3,
1937,43 but joined the Independent during the week of January 3,
1938, and testified at the hearing that she did not desire representa-
tion by the Union.
Gribble represented the Union at a conference` between' the man-
agement and the Union on November 11. After her reinstatement on"
December 15, Gribble wore her union button in the plant. At the
time of the January 5 lay-off, Gribble worked on a press which
received soap from the Woodbury plodder. She was reinstated on
January 17. 1
Mills and Phoenix each had less seniority. than Gribble and were
not shown to be more efficient than she. Gribble had worked on the
wrapping machine and had done boxing. It does not appear that
Gribble could not perform the work done by Mills and Phoenix in
January. Gribble had worked in the past on many occasions when
Mills and Phoenix had been laid off. Other facts in respect to Mills
and Phoenix have been recited above and are also relevant in con=
nection with Gribble's case.
Murphy. After his reinstatement on December 1, Murphy engaged
in an argument with Foreman Farral as to whether or not Eddington,
whd was laid off at the,time, should be occupying Murphy's position.
Dilring the course of the conversation, Farral called Murphy an
"agitator."
At the time of the January 5 lay-off, Murphy was operating the
Woodbury plodder. He was reinstated on January 17 when the plod-
der began to operate again. Nevins' who had joined the Independent,
and who had" less seniority than Murphy, was not laid off on January
"As noted above, Mills was discriminatorily laid off on November 5 and 16, and rein-
stated on November 15 and 23.
ANDREW JERGENS CO. OF CALIFORNIA 1 505
5. As noted above, Murphy could do the work done by Nevins, and
we do not credit Farral's testimony that Murphy was less efficient
on the pin-press plodder than Nevins.
During his lay-offs in November 1937 and January 1938 Murphy
had no other employment.
Rhoads. After her reinstatement on November 22, Rhoads was en-,
gaged in picking up soap from presses which received it from the
Woodbury plodder, or in boxing soap. She was laid off on January
5, 1938, and was reinstated on January 17, 1938.
Rhoads had seniority over Mills and Phoenix, whom we have already
discussed above. Rhoads had in the past performed and could per-
form the work done by Mills and Phoenix in January. There is no
evidence that Rhoads was less efficient than either Mills or Phoenix.
G. Campbell, the sixth employee laid off from the soap department
on January 5, had the least seniority among employees in that de-
partment.
In view of the previous discriminatory `lay-off of Blackmon, Fields,
Gribble, Murphy, and Rhoads, their continued adherence to the Union
and the management's continued hostility to it, the, interchange-
ability of employees in the soap department, and the unexplained
preference over these five union sympathizers of adherents of the
Independent having less seniority, we find that the California cor-
poration continued to discourage membership in the Union and en-
courage membership in the Independent by discriminatorily laying
off Blackmon, Fields, Gribble, Murphy, and Rhoads on January 5,
and Blackmon on January 7, 1938. Since Campbell had the least
seniority, we do not find that his lay-off on January 5 was discrim-
inatory.
(2) January 11, 1938
Pillow, as, found above, had been discriminatorily laid off from the
soap department in November 1937. She was reinstated on December
16, 1937, laid off on January 11, and reinstated on January 14, 1938.
Mills, whom we have discussed above, was retained on January 11,
although she had less seniority than Pillow and was not shown to be
more efficient. It does not appear that Pillow could not perform the
work being done by Mills in January.
Under these circumstances, we find that the California corpora-
tion discriminatorily selected Pillow for lay-off on January 11, be-
cause of her continued adherence to the Union.
(3) January 26, 1938
On January 26, 1938, during the hearing in the instant proceeding,
the California corporation again laid off six of the employees who
506 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
had been discriminated against in November 1937 and earlier in
January 1938. Forelady Eckland informed them that the lay-off was
due to the fact that a number of employees were attending the hearing.
Blackmon, G. Campbell, Fields, and Rhoads were laid off for January
27 and 28, Gribble for January 28,44 and Pillow for January 27, 28,
and 31.
Since it does not appear that employees with less seniority than
Blackmon or G. Campbell were retained for January 27 and 28,
we do not find that their lay-offs during this period were discrim-
inatory. However, Mills, with less seniority than the other four
employees, was retained. From the facts which we have already set
forth, we find that by her retention in preference to Fields, Rhoads,
Gribble, and Pillow during this period, the California corporation
discriminated against them, discouraging membership in the Union
and encouraging,membership in the Independent. Fields and Gribble
had no other employment during their lay-offs in November and
January.
(4) January 27, 1tJ38
Van Holm. We have found .above that the California' corporation
discriminatorily laid off Van Holm in November, then reinstated her.
She was laid off again on January 27.
Forelady Eckland told her that employees were being laid off be-
cause there was no work for them to do, and that the lay-off was tem-
porary. Van Holm testified on January 31. The record does not
reveal whether or not she has been reinstated.
. Mills, who was retained, had less seniority than Van Holm. Van
Holm could do the work Mills was engaged in during January. There
is no evidence that Van Holm was less efficient than Mills.
Under the circumstances set forth above, including the retention of
Mills, we find that Van Holm was again laid off on January 27, 1938,
because of her affiliation with the Union.
(5) - January 31, 1938
T'Vatkinson, as found above, was discriminatorily laid off in Novem-
ber 1937. She was reinstated on November 22. Watkinson was laid
off for January 31.
Mills, who was retained, had less seniority than Watkinson.
Arnold, who was also retained also had less seniority than Watkinson.
Arnold had applied for membership in the Union on October 30,
1937,45 but had joined the Independent 'in the first part of January
44 She had already asked for leave to attend the hearing on January 27.
"We have found above that Arnold was discriminatorily laid off on November 5, and
reinstated on November 22. -
ANDREW JE'RGENS -CO. OF CALIFORNIA 507
1938, and tesified at the hearing on January 13 that she did'not desire
representation' by the Union. Watkinson was experienced in almost
all types of work in the soap department. In previous years during'
slack periods Watkinson and other senior employees were not- laid
of but were put to work on presses, and junior employees were laid
off, whereas on January 31, Mills and Arnold, employees junior to
Watkinson, were placed on presses and Watkinson was laid off for that
day. There is no evidence that Watkinson was less efficient,than either
Mills or' Arnold.
Under the circumstances above set forth, including the retention of
Mills and Arnold,. we find that Watkinson was again laid off for
January 31, 1938, because of her, affiliation with the Union.
During her lay-offs in November and January, Watkinson had no
other employment. -
3. The discharge of Blackmon on January 29, 1938'
I
We have noted above that the California corporation discrimina-
torily laid off Blackmon on November 5, 1937, and again on January
5 and 7, 1938. Blackmon was recalled on January 12 and returned
to work on January 18. He was laid off on January 26 and testified
at. the ,hearing, on .January 27. He was discharged on January 29,
when he came to the plant to collect his pay, allegedly because he
falsified his employment application and because he had a criminal
record.
About December 15, 1937, a new set of rules was posted in the plant.
These rules set forth, for the first time, among other causes' for dis-
charge, violation of any criminal law, and falsification of application
for employment.
On January 27, 1938, when Blackmon was testifying at the hearing,
counsel for the California corporation informed Office Manager
Meeker that he had a "hunch" that Blackmon had a criminal record,
and that he could impeach Blackmon's testimony with such a record.
Meeker thereupon requested General- Manager Rothenberg to obtain
the requisite information. Rothenberg proceeded to the police station
at Burbank and received information there that Blackmon had been
charged with breaking and entering in Hamtranck, Michigan; in July
1933, that the charge had been reduced to loitering, and that Blackmon
had been sentenced to a 90-day, term in the Detroit House of Correc-
tion; that he had been arrested in June 1934, in Beverly Hills, Cali-
fornia, on a charge of vagrancy; 11 and that hq had been arrested for .
drunkenness in Burbank in 1935.
"The Beveily Hills Police Department informed counsel for the Board by letter dated
February 23, 1938 ,- that Blackmon 's name was not in its files Blackmon denied that he
was arrested for vagrancy but testified that he spent a night in jail at Beverly Hills on his
own-request , since lie had not sufficient- funds for a lodging. - - -
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of this information Rothenberg , according to his tes
timony, concluded that Blackmon had falsified " his employment appli-
cation by noting thereon that he had lived in Burbank from 1932 to
1933,47 and decided to discharge him because of such alleged falsifica-
tion and because of his criminal record. The information supplied by
the Burbank police station , clearly did not support Rothenberg's as-
serted conclusion that Blackmon had falsified his employment applica-
tion. For aught that Rothenberg knew, although Blackmon had spent
90, days in a Michigan jail during 1933, he night still truthfully have
represented that he lived in Burbank from 1932 to 1933 . Rothenberg
made no further inquiry into the truthfulness of this representation.
He admitted that the application form did not request information
concerning past imprisonment . Under these circumstances we do not
credit Rothenberg's claim that he concluded that Blackmon had
falsified his employment application.
On January 29 Meeker, in the presence of Geneau , asked Blackmon
if the information which the management had, concerning his criminal
record, was true. Blackmon stated that the charge of breaking and
entering was not , but admitted he had served a term in the House of
Correction . Meeker called Black'mon's attention to the rules regard-
ing discharge for violation of criminal law and further called his atten-
tion to the fact that he had failed to mention the jail sentence or the
time spent in Michigan iii his application blank and informed him he
was discharged . Meeker testified as follows in this connection : "I did
tell him that if he had made known this record that that would have
been an entirely different matter , that it wasn 't so much-I don't
know as I told him just this way-it wasn't so much the fact that we
had just-that he had this record, as it was that he had not made it
known , and that he had made statements on his application blank
which were not true ." Thus Meeker allegedly attributed the discharge
primarily , not to Blackmon 's criminal record, but to his failure to dis-
close this fact when he applied for employment . The application
blank did not call for such information , and after the posting of the
rules on December 15 the California corporation did not require em-
ployees to report if they had any previous criminal record. No
employees other than Blackmon were investigated.
47 The precise information appearing on the employment application, dated August 1,
1934, upon which the California corporation relies, is the following : In answer to the
question "Flow long have you lived in Burbank?' Blackmon answered "2 years" Under
"Record of Previous Experience" Blackmon stated in part as follows :
From To . Name of employer Address Nature of work Reason for leaving
1931 1932 Part time "Cooking"_______ Long Beach___ Cooking --------- Quit.
1932 1933 Odd jobs & Cooking________ Burbank______ ----- do----------- No more work.
1933 1934 Odd jobs___________________ ----- do-------- . Gen. work------
0
ANDREW JE'RGENS CO. OF CALIFORNIA '509
Although Rothenberg and Meeker denied having knowledge -of the
criminal record prior to January 27, and Meeker testified that he
had ascertained before discharging Blackmon that no representative
of the management had such knowledge, Blackmon's jail sentence was
the subject of "common gossip" in the plant; employees in the ship-
ping department, including Bryan, used to engage in banter with him-
regarding it; and the "hunch" of counsel for the California corpora-
tion. as to Blackmon's criminal record remains unexplained.
Since Rothenberg did not claim that he would have discharged
Blackmon because of his criminal conviction alone, since Meeker's
above-mentioned testimony indicates that Meeker purportedly would
not have discharged Blackmon because of a criminal conviction alone,
since the California corporation did not establish its rule with respect
to'discharge for violations of the criminal law until long after Black-
mon's conviction, and since his jail sentence was common knowledge
among employees at the plant, we find that the California corporation
did not discharge Blackmon because he had been convicted on the
charge of loitering in 1933. Furthermore, we have found that Rothen-
berg did not in fact believe that his application had been falsified.
Moreover, we do not credit the management's claim that it discharged
Blackmon for his failure to reveal his conviction because it does not
appear that the California corporation required any such disclosures
of its employees. In view of the past acts of discriminaticu against
Blackmon, his prominent union activity, the California corporation's
anti-union campaign, and Foreman Van Hove's statement to Helen
Rogers about December 6, 1937, noted above, that "Palmer and Black-
mon would probably lose their jobs," we find that the California cor-
poration discharged Blackmon because of his affiliation with and activ-
-tty in the Union. There is no showing that his past record in any way
affected Blackmon's efficiency or trustworthiness as an, employee, and
we are of the opinion that it will effectuate the policies of the Act to
order his reinstatement.
We find that the California corporation discriminated in regard
to the hire and tenure of employment of the charging employees listed
in Appendix "A" and Appendix "B," and thereby discouraged mem-
bership in the Union, and encouraged membership in the Independent,
and that it thereby interfered with, restrained, and coerced its em-
ployees in their exercise of the rights guaranteed in Section 7 of the
Act. We find that the record does not support the allegations'of the
complaint that the California corporation discriminated against the
employees named in Appendix "C" and Appendix "D" in regard to
their hire and tenure of employment, thereby discouraging or encour-
aging membership in a labor organization.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The, alleged refusal to bargain collectively
On November 4, 1937, the Union requested the California corpora-
tion for exclusive recognition. The latter denied knowledge that the
Union represented a majority and asserted its willingness to abide by
a Board determination of the question concerning representation.
On November 8, 1937, the Union filed with 'the Board its petition
for certification.
On November 11, 1937, the Union and the California corporation met
with Howard, an agent of the Board. The management requested that
the question of representation be resolved by an election . Howard
stated that since charges had been filed they "would have to be cleared
up before an election . . . or before any further informal hearing could
be held." The management agreed to a cross-check of union member-
ship application caids against its pay roll with the understanding that
such cross-check "would have no effect " upon the issue of recognition
and with the further understanding that authority to recognize a
collective bargaining representative would have to come from the office
of the Ohio corporation.
On November 12, 1937, Howard made the cross -check'in . Rothen-
berg's office in the presence of Rothenberg and Palmer and announced
that the Union represented 64 percent of the employees involved in the
cross-check.
On or about November 15, 1937, Prior, acting for the Union, re-
quested Rothenberg for exclusive recognition. Rothenberg reminded
Prior of the understanding reached with Howard and stated that he
had forwarded the result of the cross -check'to the Cincinnati office.
Thereafter, neither the Union not the California corporation com-
municated with the other with respect to the issue of recognition.
Under these circumstances, we. do not conclude that the California
corporation refused to bargain within the meaning of Section 8 (5) of
the Act.
We find that the record does not support the allegation of the com-
plaint that the California corporation refused to bargain collectively'
with the Union as the exclusive representative of its employees.
In view of the foregoing it is unnecessary to make any determination
as to representation by the Union of a majority in the appropriate unit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the California corporation set forth in
Section III, above, occurring in connection with the operations' of the
California corporation described in Section I, above, "have a close, in-
timate, 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.
ANDREW JERGENS CO. OF CALIFORNIA
V. THE REMEDY
511
As noted above in Section I, the Ohio corporation is responsible for"
the unfair labor practices of the California corporation. Having
found that the California corporation has engaged in unfair labor
practices, we shall order the Ohio corporation to cease and desist
therefrom and to take certain affirmative action designed to effectuate
the policies of the Act and to restore as nearly as possible the condi-
tions which existed prior to the commission of the unfair labor
practices:
We have found that the California corporation dominated and inter-
fered with the formation and administration of and contributed sup-
port to the Association. Our finding would ordinarily warrant the
issuance of an order directing the disestablishment of that organization
as a representative of employees for the purposes of collective bar-
gaining, but we shall withhold such an order since it is apparent from
the record that this labor organization has been replaced by the inde-
pendent. However, in order to bar a resumption or repetition of the
activities which constituted the unfair labor pactices, we shall order
the Ohio corporation to cease and desist from dominating, interfering
with, or contributing support to the Association.
We have found that the California corporation has dominated and
interfered with the formation and administration of and contributed
support to the Independent.' Its continued existence is a consequence
of violation of the Act, thwarting the purposes of the Act and render-
ing ineffective a mere order to cease the unfair labor practices .18 In
order to effectuate the policies of the Act and free the employees from
such domination and interference and the effects thereof, which con-
stitute a continuing obstacle to the exercise by the employees of the
rights guaranteed them by the Act, we shall order the Ohio corporation
to refrain from recognizing the Independent, and withdraw all recog-
nition, if any, from the Independent, as representative of the employees
for the purpose of dealing with the Ohio corporation concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, and
conditions of work, and to disestablish it as such representative 4s
We have found that the California corporation discriminated in re-
gard to the hire and tenure of employment of the charging employees
named in Appendix "A" and Appendix "B." Since the California cor-
poration has already reinstated 'the, employees named in Appendix
-"B," we shall not order the Ohio corporation to reinstate them 5°
"Consolidated Edison Company v N L. R B, 305 U. S 197.
"N L If. B. v. Pennsylvania Greyhound Ltine.s.Inc., et al., 303 U. S 261.
00 Appendix "B" includes the navies of Sue Fields, )Iildied Gribble, Ilene Pillow, Ruth
Rhoads, and Eudalia Watkmson. We have found above that Fields, Pillow, and Rhoads
were disciiimnatorily laid off on January 26, 1938. , Howevei, Fields and Rhoads were only
laid off for January 27 and Januaiy 28 , Pillow, for January 27, January 28, and January
31. Gribble on January 26 requested the day oil on Januaiy 27, but was disciinnnatorily
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the employees named in Appendix "A'' have not been rein-
.stated .51 , We shall therefore order the Ohio corporation to offer to the
employees named in Appendix "A" reinstatement to their former or
substantially equivalent positions. The offer of reinstatement shall be
without prejudice to their seniority and other rights and privileges
and shall be effected in the following manner : all employees hired
after the dates when the California corporation discriminated 'against
the employees to be offered reinstatement, shall, if necessary to provide
employment for those to be offered reinstatement, be dismissed. If,
thereupon, by reason of a reduction in force there is not sufficient em-
ployment immediately available for the remaining employees, includ-
ing those to be offered reinstatement, all available positions shall be
distributed among such remaining employees in accordance with the
Ohio corporation's usual method of reducing its force, without dis-
crimination against any employee because of his union affiliation or
activities, following a system of seniority to such extent as-has been ap-
plied prior to November 3, 1937, in the conduct of the California cor-
poration's business. Those employees remaining after such distri-
bution for whom no employment is immediately available, shall be
placed upon a preferential, list prepared in accordance with the prin-
ciples set forth in the previous sentence, and shall, thereafter, in ac-
cordance with such list, be offered employment in their former or in
substantially equivalent positions, as such employment becomes
available and before other persons are hired for such work.
At the hearing the California corporation sought to show that
certain' of the employees named in Appendix "A" had obtained sub-
stantially equivalent employment subsequent to the termination of
their employment with the California corporation. We find that
whether or not any of such employees obtained substantially equiva-
lent employment, effectuation of the policies of the Act requires that
the Ohio corporation be ordered to reinstate them.52
By laying off or by discharging or by delaying the reinstatement
'of, or by refusing to reinstate the employees named in Appendix "A"
and Appendix "B," the California corporation has discriminated in
regard to their hire and tenure of employment. 'Accordingly, we
shall order the `Ohio corporation to make payment to each of the
laid off on January 26 for January 28 Watkiuson was discriminatorily laid off for Janu-
ary 31 and received word to, return to work the next day. Although the record does not
show whether or not each of the employees nained, except Rhoads, in fact returned to work
or were reinstated , each of them was laid off only for a definite day or days , and presum-
ably returned to her employment at the expiration of her lay -off period Rhoads testi-
fied on January 31 that she had asked for that day off. Under these circumstances we have
included the five employees among those already reinstated.
51 We have included in Appendix "A" the name of Dolores Van Holm, since, as Ave have
found above, she was discriminatorily laid off on January 27 , 1938 , and merely told that
the lay -off was temporary . In contrast to the cases of Fields , Gribble, Pillow , Rhoads, and
watkinson , it does not appear that Van IIolm ' s-lay-off was confined to any definite period
62 Phelps Dodge Corp . v. N L R B , 313 U S 177
ANDREW JERGENS CO. OF CALIFORNIA 513
employees named in Appendix ".A" and Appendix "B" an amount
equal to that which each would normally have earned as wages during
the period or periods from the date or dates of discrimination ' to
the date or dates of the reinstatement of, the offer of reinstatement to,
or placement upon the preferential list of,.each employee, less his or
her net earnings,53 during that period or those periods, had the
California corporation not discriminated in regard to his or her hire
or tenure of employment.''
We have found that the California corporation has, not discrimi-
nated in regard to the' hire and tenure 'of employment of the em-
ployees listed in Appendix "C." These employees have not been
reinstated.55
In view of the unfair labor practices as set forth in Section III,
above, and the, relationship between the California and Ohio cor-
porations as set forth in Section I, above, there is grave danger that
the Ohio corporation will not reinstate. the employee's listed in Ap-
pendix "C," even if their former or substantially equivalent positions
are open. In order to effectuate the policies of the Act, we will
require' the' Ohio corporation to include the employees named in
Appendix "C" upon the preferential list referred to above, or if no
need for that preferential list arises, upon a similar preferential list,
to be offered reinstatement in accordance with the principles set
forth above in connection with the reinstatement of employees.56
VI. THE PETITION
In view of the lapse of time since the filing of the petition, for
investigation and certification of representatives, we shall dismiss the
petition without prejudice.
w By `,`net earnings" is meant earnings less expenses, such its for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the California corporation, which would not have been incurred but for
his unlawful discharge and the consequent necessity of his scekmg employment elsewhere.
See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L B. B 440.
Monies ieceived for work performed upon Federal, State, county, and municipal or other
work-relief projects shall be considered as earnings. See Republic Steel Corporation v.
N L R.B,311U S.7
" During Blackmon's lay-off of January 7, 1938, he was recalled to work, as noted
above,' on January 12,' but failed to return until January 18 He is not entitled
to back pay between January 12 and January 18, 1938 During their lay-offs during the
last week in January 1938, Fields testified at the hearing on January 28 ; Pillow, Van
Holm, and Watkinson on January 31. Since these employees presumably would not have
worked on the days they testified, they are not entitled to back pay for those days.
firibble requested the day of January 27 off, and is not entitled to back pay for that day.
She testified on January 28, however, and the record shows that she would have
testified on Januaiy 27, if she had not been laid ' otf for' January 28 Under these
circumstances Gribble is entitled to back pay for January 28, 1938.
"Appendix "D" lists the employees who were not discriminated against, and who have
been ieinstated
'IN L. R B. v. C. Nelson Mfg. Co., 120 F. (2d) 444, .,446-7 (C. C. A. 8).
481039-42-vol• 43-33
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the,Board makes:the following :
CONCLUSIONS OF LAW
1. Andrew Jergens Employees' Association was a labor organiza-
tion, and Soap & Cosmetic Workers Union, No' 21361 and Independ-
ent Soap & Cosmetic Workers Union, Inc., are labor organizations
within the meaning of Section 2 (5) of the Act.
2. The California corporation, by dominating and interfering with
the formation and administration of Andrew Jergens Employees'
'Association and Independent Soap & Cosmetic, Workers Union, Inc.,
and contributing support to diem, has engaged,in unfair labor prac-
tices within the meaning of Section 8 (2) of the Act.
3. The California corporation, by discriminating in regard to the
hire and tenure of employment of the employees named in Appendix
"A" and Appendix "B," has-engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act.
4. The California corporation, by interfering with,'. restraining,
and coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, has engaged in unfair labor practices within
'the meaning of Section 8-(1) of the Act. _
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7)
of the Act.
6.''The California corporation has not engaged in unfair labor
practices within the meaning of Section 8, (5) of the Act.
7. The California corporation has not discriminated in regard to
the hire and tenure of employment of the employees named in Ap-
pendix "C" and Appendix "D" within the meaning'of Section 8 (3)
of the Act. '
8. The Andrew Jergens Company (of Ohio) is responsible for the
aforesaid unfair labor' practices of Andrew Jergens Company of
California.
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 Andrew
Jergens Company, (of Ohio), and its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Soap k Cosmetic Workers Union,
No. 21361, or_ any other labor organization of its employees, by dis-
ANDREW JERGEI\'S ' CO. OF • CALIFOR\'TA ' - 515
charging,' laying off, delaying the reinstatement of, or refusing to
reinstate any of its employees or by discriminating in, any' other
manner in regard to hire or tenure of employment ; -
(b) In any manner dominating or interfering With the achninis-
tration of Andrew Jergens Employees' Association or Independent
Soap & Cosmetic Workers Union, Inc., or with the formation 'or ad-
ministration ofJany other labor organization of its employees, or
contributing support to Andrew Jergens Employees' Association or
Independent. Soap & Cosmetic Workers Union, Inc., or to any other
labor organization of its employees;'
,(c) In any other manner interfering-with, restraining, 'or coercing
its' employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain' collectively
through representatives of their own choosing,,and to engage in con-
certed activities for the purposes of collective bargaining or other
"mutual'aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the' following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Refrain from recognizing, and withdraw all existing recogni-
tion, if any, from Independent Soap &- Cosmetic Workers Union,
Inc., as a representative of its employees for the purpose of dealing
with it concerning grievances, labor disputes, wages, rates of 'pay,
hours ' of employment or other conditions of work, and completely
disestablish Independent Soap & Cosmetic Workers Union, Inc., as
such representative;'
(b) Offer to the employees named in Appendix "A" immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their. seniority and other rights and
privileges, in the manner set forth in the section entitled. "The
remedy", above, placing those employees for whom employment t is
not immediately available upon a preferential list in the manner
set forth in said section;
(c) Include the employees named in Appendix "C" upon the pref-
erential list referred to in paragraph 2 (b) above, or place them
upon a similar,list, in the manner set forth in the section 'entitled
"The remedy" above, and refrain from discriminating against them,
or any of the employees on said list, when employment becomes
available ;
(cl) Make whole the employees named in Appendix "A" and Ap-
pendix "B" for any loss of pay they have suffered by reason of the
discrimination in regard to their hire and tenure of employment by
payment to each employee of a sum of money equal to that which each
normally would have earned as wages during the period or t)eriods
516 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
from the date or dates of the discrimination to the date or dates of the,
reinstatement, offer of reinstatement, or placement on the preferential,
list, of or to each employee, as the case may be, in the manner set,
forth in the section entitled "The remedy" above, less the net earnings 57
of each employee during such period or periods.
(e) Post immediately,in conspicuous places at its Burbank plant,
and maintain for a period of at least sixty (60)' consecutive days from
the date of posting, notices to its employees stating: (1) that the
Ohio' corporation will not engage 'in the conduct from which it is
ordered to cease and desist in paragraphs 1 (a), (b), and (c) of
this Order; (2) that the Ohio corporation will take the affirmative-
action set forth in paragraphs 2 '(a), (b), (c), and (d) of this Order;
(3) that its employees are free to become or remain members of Soap
& Cosmetic Workers Union, No. 21361, and the Ohio corporation will
not discriminate against any employee because of membership or, ac-
tivity in that organization;.
(f) Notify the Regional 'Director of the Twenty-first Region in
writing within ten (10) days from the date of this Order what steps
the Ohio corporation has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as its alleges that the California corporation has
engaged in unfair labor practices within the meaning of Section 8-
(5) of the Act; and insofar as it alleges that the California corporation
discriminated in regard to the hire and tenure of employment' of the
employees named in Appendix "C" and Appendix "D."
AND IT IS FURTHER ORDERED that the petition for investigation and
certification of representatives be, and it hereby is, dismissed without
prejudice.
MR. GERARD D. REII.LY took no part in the consideration of the above
11
Decision and Order.
Suzanne Adams
William G. Blackmon
June Brown
Vera Campbell
Helen Dobbins
Lloyd H. Eddington
Mary Gracey
Melba Grafstrom
APPENDIX' "A"
Katherine Hayes
Dorothy Holmes
Jane Lansing
Ruth Newman
Ralph Palmer
Virginia Reid
Dolores Van Holm
Ed Young
51 See supra, footnote 53.
ANDREW JERGENS CO . OF CALIFORNIA
-Florence Arnold
Clementine Bayless
Glen' Campbell
Lola Cox
Sue Fields
Mildred Gribble
Lena Holmes,
Jean Mills ,
APPENDIX-"B" '
C. F. Murphy
Shea Paysinger
Ilene Pillow
Ruth Rhoads
Betty Rowe
Arlene Stewart
Eudalia Watkinson
Marie Worcester
APPENDIX "C"
Leslie Chatfield
J. H. Craig
Grace Louise 'Bruce
Norman Heywood
Lula Johnson
Joseph Mulleda
Harold Gratias
APPENDIX "D"
,Velma Rainwater
Helen Rogers
Ralph Smith
Nancy Williams
517