Cupples Company, a Corporation

National Labor Relations Board - Board Decisions

Dec 5, 1938

10 N.L.R.B. 168 (N.L.R.B. 1938)

In the Matter of CUPPLES COMPANY, A CORPORATION and MATCH-
WORKERS, FEDERAL LABOR UNION No. 20927, AFFILIATED WITH A. F.
OF L.
In the Matter of CUPPLES COMPANY, A CORPORATION 1 and INTER-
NATIONAL ASSOCIATION OF MACHINISTS, DISTRICT No. 9, A. F. OF L.
In the Matter Of CUPPLES COMPANY, A CORPORATION 1 and MATCH-
WORKERS' FEDERAL LABOR UNION No. 20927, AFFILIATED WITH A. F..
OF L.
Cases 'Nos. C-x.27, R-522, and R-597, respectively.-Decided Decem-
ber 5, 1938
Match Manufacturing Industry-Interference, Restraint, and Coercion: anti-
union statements by supervisory employee; threats to close plant-Discrimi-
nation: lay-off of and failure to reinstate 10 union members ; discharge of and
refusal to reinstate one union member ; charges of, dismissed without prejudice
as to three persons-Company-Dominated Union: domination of and interference
with formation and administration; support; recognition of as collective bar-
gaining agent; employer ordered to cease giving effect to contract with; disestab-
lished, as agency for collective bargaining-Collective Bargaining: charges of
failure to bargain collectively dismissed-Reinstatement Ordered: discharged
employees; employees not recalled to employment-Back Pay: awarded to dis-
charged employee and employees not recalled to employment-Investigation of-
Representatives: controversies concerning representation of employees: contro-
versy concerning appropriate unit ; petition for, in behalf of six mechanical
maintenance men, dismissed-Unit Appropriate for Collective Bargaining:
production and maintenance employees of respondent's match department, ex-
cluding mechanical maintenance men, supervisory employees , foremen and fore-
ladies-Election Ordered: date of, to be determined in future.
Mr. Alan F. Perl, for the Board.
Mr. Luther Ely Smith and Mr. Victor B. Harris, both of St. Louis,
Mo., for the respondent.
Mr. S. W. McPheeters and Mr. Wilder Lucas, both of St. Louis,
Mo., for the Mutual.
Mr. Waldo C. May field, of St. Louis, Mo., for the Machinists.
Miss Margaret M. Farmer, of counsel to the Board.
1 The captions in the pleadings of Cases Nos . R-522 and R-597 referred to the respond-
ent herein as "Cupples Match Company." A motion to conform the pleadings to the proof
was granted at the close of the hearing.
10 N. L. R. B., No. 13.
168
DECISIONS AND ORDERS
DECISION
ORDER
AND
DIRECTION OF ELECTION
169
STATEMENT OF THE CASE
On August 3, 1937, Matchworkers' Federal Labor Union No. 20927,
herein called the Matchworkers' Union, and International Association
of Machinists, District No. 9, herein called the Machinists, respec-
tively, filed with the Acting Regional Director for the Fourteenth
Region (St. Louis, Missouri) petitions each alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Cupples Company, St. Louis, Missouri, herein called the
respondent, and requesting an investigation and certification pursuant
to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. On September 9, 1937, the National Labor
Relations Board, herein called the Board, acting pursuant to Sec-
tion 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 and 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), of the said
Rules, and Regulations, ordered that the two representation cases
and a case involving charges filed by the Matchworkers' Union be con-
solidated for purposes of hearing.
Upon charges duly filed by Matchworkers' Union, the Board by the
said, Acting Regional Director issued its complaint dated November
22, 1937, against the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1), (2), (3), and (5) and
Section 2 (6) and (7) of the Act. The complaint and notices of
hearing on the three cases were duly served upon the respondent,
upon the Matchworkers' Union, upon the Machinists, and upon
Mutual Relations Association, herein called the Mutual, a labor or-
ganization claiming to represent employees of the respondent.
With respect to the unfair labor practices, the complaint alleged
in substance (1) that the respondent has, since on or about June 25,
1937, fostered, dominated, and interfered with the formation and ad-
ministration of the Mutual, and has given financial and other support
thereto; (2) that on or about July 14, 1937, the respondent laid off
and/or discharged 13 employees at its North Main Street plant for
joining, forming, and assisting the Matchworkers' Union ; (3) that
the respondent, since July 17, 1937, has ceased operations of that por-
170 NATIONAL LABOR RELATIONS BOARD
tion of its North Main Street plant theretofore engaged in the manu-
facture of penny matches, for the reason that employees engaged in
the operations and manufacture of penny matches had joined and
assisted the Matchworkers' Union and had engaged in concerted ac-
tivities with other employees for the purpose of collective bargaining
.and other mutual aid and protection; (4) that the respondent had
kept under surveillance the meetings of the Matchworkers' Union and
the activities of its employees who are members thereof, intimated
to and advised its employees to refrain from joining, assisting or re-
maining as members of the Matchworkers' Union; and (5) that the
respondent has refused to bargain collectively with the Matchworkers'
Union although it represents a majority of the employees of the re-
spondent within an appropriate unit.
On November 27, 1937, the respondent filed an answer to the com-
plaint admitting the correctness of the description of the general
nature of its business as given in the complaint, and admitting that, in
the course and current of its business at the North Main Street plant,
it causes and has continuously caused a large part of the raw materials
used in the manufacture of its products to be purchased and trans-
ported in interstate commerce from and through States of the United
States other than the State of Missouri ; and causes and has continu-
ously caused a large part of the products manufactured by it to be
sold and transported in interstate commerce to, into and through
States of the United States other than the State of Missouri. The
answer denies that the respondent has engaged in or is engaging in the
alleged unfair labor practices. It avers by way of affirmative defense
that the respondent ceased manufacturing penny matches for the rea-
son that it was overstocked on such matches, that the respondent did
not discharge the employees engaged in such manufacture but merely
laid them off until such time as the manufacture should be resumed,
and that the respondent is without knowledge as to whether or not a
majority of the employees in the match department had, prior to July
17, 1937, designated the Matchworkers' Union as their representative
for the purposes of collective bargaining.
On November 24, 1937, the Mutual filed a motion asking leave to
intervene in respect to the allegations of the complaint that the re-
spondent had dominated and interfered with the formation and admin-
istration of the Mutual. The Acting Regional Director allowed such
intervention.
Pursuant to notice, a hearing on the consolidated cases was held in
St. Louis, Missouri, on November 29 and 30, and on December 1, 2, 3,
4, 6, 7, 8, 9, 10, 11, 13, and 14, 1937, before Waldo C. Holden, the Trial
Examiner duly designated by the Board. The Board, the respondent,
and the Machinists were represented by counsel and participated in
the hearing.
DECISIONS AND ORDERS 171
At the hearing, the Mutual asked leave to intervene with respect to
paragraph 12 of the complaint which alleges that the production and
maintenance employees of the respondent in the match department
constitute an appropriate unit and with respect to paragraph 13 of the
complaint which alleges that a majority of the employees in an appro-
priate-unit have designated the Matchworkers' Union as their bargain-
ing representative. The Trial Examiner allowed the Mutual to inter-
vene with respect to paragraph 12 and denied intervention with respect
to paragraph 13.
During the course of the hearing, upon motion of counsel for the
-Board, the complaint was amended so as to allege that the respondent
had discharged Daisy Whiteman in order to discourage membership
in the Matchworkers' Union. Upon motion of counsel for the Board,
the Trial Examiner dismissed the allegations of the complaint that
the respondent had discriminatorily laid off and/or discharged Esther
Hinkel, Minnie Hinkel, and Lucy Hinkel.
At the conclusion of the Board's case, the respondent moved that
all allegations of the complaint that the respondent had engaged in
unfair labor practices be dismissed, and the Mutual moved for dis-
missal of all the allegations of the complaint with respect to which it
had been permitted to intervene. The Trial Examiner ruled that
the allegation of the complaint that a, majority of the employees in
the appropriate unit had, prior to July 17, 1937, and at all times there-
after, designated the Matchworkers' Union as their bargaining repre-
sentative should be dismissed, denied the motion of the respondent
as to the other allegations, and denied the motion of the Mutual.
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded
all parties.2 We have reviewed the rulings of the Trial Examiner
on motions and on objections to the admission of evidence and find
that no prejudicial errors were committed. The rulings are hereby
affirmed.
On February 7, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon all parties. The
Trial Examiner found that the respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section 8
(1), (2), and (3) and Section 2 (6) and (7) of the Act. He recom-
mended that the respondent be ordered to cease and desist from its
unfair labor practices, to refrain from dealing with or recognizing
the Mutual as the representative of its employees for the purposes
of collective bargaining, to disestablish the Mutual as such repre-
sentative, to offer immediate and full reinstatement to the employees
whom the Trial Examiner found that the respondent had discrimi-
I The Mutual was .limited to the issues with respect to which it was permitted to
intervene.
172 NATIONAL LABOR RELATIONS BOARD
natorily discharged, and to make whole the said discharged employees
for any losses of pay they may have suffered by reason of the unfair
labor practices of the respondent, by payment to them of a sum of
money equal to that which they would normally have earned as wages
from the date of their discharges to August 17, 1937, less any amount
earned by them during said period. The respondent and the Mutual
filed exceptions to the Intermediate Report and the respondent also
filed a brief and a supplemental brief. The Board has considered
the exceptions and the briefs.
Pursuant to notice duly served upon the parties, a hearing for the
purpose of oral argument was held before the Board in Washing-
ton, D. C., on March 7, 1938. The respondent was represented by
counsel and participated in the -argument. The Matchworkers'
Union, the Machinists, and the Mutual did not appear.
Upon the entire record in the three cases, the Board makes the
following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Cupples Company, a Missouri corporation, has its principal place
,of business in St. Louis, Missouri, where it is engaged-in the manu-
facture, sale, and distribution of matches, rubber jar rings, inner
tubes, rubber heels, mops, paper cutters, and other products.
Until 1901, the respondent was engaged wholly in the sale and dis-
tribution of articles made by other companies, and this is still its
principal business. In 1901, being unable to obtain cotton mops of
acceptable quality, it established a small manufacturing department
in order to continue to supply its customers with this commodity.
Since then it has established other manufacturing departments until
at the present time it manufactures, in addition to, cotton mops, rub-
ber jar rings, rubber heels, rubber hose, paper cutters, and matches.
From January to July 1937, the respondent purchased for use in
its manufacturing division, comprising all its manufacturing depart-
ments, raw materials valued at $834,622.04. ' Approximately 90 per
cent of these materials were purchased outside the State of Missouri.
The total sales of the respondent for this period amounted to $1,339,-
444.73 in value, approximately 60 per cent of the sales being made out-
side Missouri. In the match department of the respondent, the depart-
ment of the manufacturing division with which this case is princi-
pally concerned, raw materials valued at $156,751.13 were purchased
during this period from Washington, Illinois, Wisconsin, Indiana, and
from abroad.
The respondent employs approximately 400 persons in its manu-
facturing division. Of these; approximately 140 are employed in the
match department.
DECISIONS AND ORDERS
II. THE ORGANIZATIONS INVOLVED
173
Matchworkers' Federal Labor Union No. 20927, affiliated with the
American Federation of Labor,3 is a labor organization apparently
admitting to its membership all employees in the match department
of the respondent,' with the exception of supervisory employees.
International Association of Machinists, District No. 9, A. F. of L.
is a labor organization admitting to its membership any person who
has served an apprenticeship of 4 years at the machinist trade.'
Mutual Relations Association is an unaffiliated labor organization
admitting to its membership all employees of the manufacturing divi-
sion of the respondent, except supervisory and clerical employees.
III. THE UNFAIR LABOR PRACTICES
A. The chronology of events -
For 5 weeks during March and April 1937 employees of a factory
near the Sixth Street building' of the respondent were on strike.
According to Houghton, a machinist employed by the respondent, the
strike failed and the strikers, who were members of a union affiliated
with the Committee for Industrial Organization, returned to work for
the same wages offered them by the employer preceding the walk-out.
Houghton testified that this situation caused much comment among
certain of the respondent's employees and that he, together with
Gradl, Zimmerman, and Powell, three other machinists in the re-
spondent's mechanical and inaintenance department, became the nu-
cleus of a group of varying size which discussed the problem of union-
ism during many luncheon periods. According to Houghton, the
group decided that affiliated unions, entailing the influence of out-
side organizers among the employees, were undesirable, and that any
attempt on the part of an affiliated union to organize the respondent's
employees should be resisted by the immediate formation of an "inside"
independent union.
During this period the respondent was aware that its employees
were- becoming interested in the question of collective bargaining.
Harry B. Wallace, president of the respondent, testified that some time
in April 1937, shortly after the Act had- been upheld by the Supreme
Court of the United States, an employee inquired whether the Loy-
3 The American Federation of Labor will be designated herein as the A F. of L
4 The constitution of the Matchworkers' Union does not indicate requirements for admis-
sion to membership . The above classification is based upon claims made for recognition as
exclusive bargaining agent
'The constitution of the International Association of Machinists indicates a jurisdiction
over many classifications of machinists . The above -mentioned qualification is the one
stressed by the Machinists in the present case
° The respondent maintains two buildings , one at Sixth and Spruce Sticets, herein called
the Sixth Street building , and one at North Main and Cornelia Streets, herein called the
North Main Street building.
174 NATIONAL LABOR RELATIONS BOARD
alty and Service League, a beneficial employee organization sponsored
by the respondent , could serve as a collective bargaining agent for the
employees in regard to wages, hours , and working conditions. He was
told that it could not be so used. E. H. Bohlman, manager of the
manufacturing division , heard of the discussion concerning the neigh-
boring strike and later learned from the foreman of the inner-tube
department - that the employees seemed to be organizing a union. This
information was passed on to Wallace about June 1, 1937.
The A. F. of L. began organizational activity among the match-'
workers of the respondent in the North Main Street building. On
June 24, 1937 , dodgers announcing a meeting for the next evening were
handed to such employees on their way to work . Wallace and Bohl-
man became aware of these developments and discussed the matter
together. That such organizational activity by the A. F. of L. was
not welcome to either Wallace or Bohlman is evidenced by their testi-
mony that they remarked to each other "now we are in for it" and held
their heads . Wallace admitted frankly at the hearing that although
he had felt friendly towards the idea of his own employees organizing
an independent union, he did not feel friendly towards the A. F. of L.
Wallace testified , however, that he instructed Bohlman to see that the
Wagner Act was enforced . Bohlman stated that lie transmitted these
instructions to the superintendents in the various departments under
his jurisdiction.
- The distribution of the dodgers created much discussion among
the employees of the match department . L. I. Mayhew , superintend=
ent of the match department , stated that from this time on the entire
department sounded "like 'a beehive into which someone had thrust
a stick."
- Steps were immediately taken by Irene Weitzel, whom the em-
ployees on the penny unit 7 regarded as their forela;dy, to counteract
the interest aroused by the dodgers and to inform the penny-unit
operators of the respondent 's hostility toward an affiliated union.
One employee stated that Weitzel warned her during working hours
that she should not go to the proposed A. F. of L. meeting if she
wished to -hold her job ; another testified that she was told by Weitzel,
also during working hours , that if she joined the A. F. of L. it
would make trouble in the factory ; a third testified that her first
knowledge of the proposed meeting came when Weitzel asked her if
she planned to attend it, and that Weitzel had asserted that the
Union was trying to get into the plant and that the respondent would
shut down the factory before it would permit this to happen . Weitzel
did not testify at the hearing . It was stipulated , however, that had
she done so she would have denied the threats and anti-union state-
° Of the three units in operation in the department , two, herein called nickel units,
produced large matches selling for a nickel a box and one, herein called the penny unit,
produced small matches selling for a penny a box.
DECISIONS AND ORDERS 175
ments attributed to her. However, in the light of all the evidence
adduced at the hearing relative to the statements and activities of
Weitzel, we are of the conclusion that Weitzel made the alleged
-threats and statements and we so find.
On, the same morning the dodgers were handed employees of the
North Main Street plant, there appeared in several departments at
-the Sixth Street building blank petitions, the headings of which made
reference to the choice of representatives for collective bargaining.
Zimmerman, a machinist, was handed copies by his foreman, Kountz-
-man.8 Zimmerman, who, as noted above, had previously discussed
-organization of an unaffiliated union with Houghton and several
•other machinists, presented the petition to Houghton who concluded
-that it "looked too much like company domination." Zimmerman
-and Houghton then decided to call a meeting that evening for the
purpose of "going into the question of a union from A to Z." The
meeting was held with 18 employees attending. At the meeting, an
organization was formed and temporary officers were elected. Imme-
diately after the meeting, solicitation of members for the organization
was begun.
On the following morning, George Cundiff, an engineer in the
match department, found on his desk a petition form similar to that
which had appeared in, various departments on the previous day. He
tore off the caption and substituted for it one of his own composi-
tion, stating that the undersigned agreed to accept Juanita Cundiff,
Charles Conklin, and Harry Seibe as a committee in forming an
independent union for collective bargaining. Irene Weitzel signed,
the petition prepared by Cundiff and urged employees to attend a
meeting at the noon hour at which Cundiff would speak. She also
advised a number of employees to sign a petition which she declared
Cundiff would have with him. Weitzel and others referred to the
new organization which was being formed as a company union.
The A. F. of L. meeting was held on the evening of June 25, 1937,
and was attended by. a number of employees. The Matchworkers'
Union was formed and application was made for a charter from the
A. F. of L. Irene Weitzel was shortly thereafter informed to some
extent as to the girls who attended and participated in the meeting.
On Saturday, June 26, 1937, Bohlman, the manager of manufac-
turing operations, was asked by Houghton and Zimmerman for the
name of an attorney to assist them in forming a union. After con-
sulting Wallace, the president of the respondent, Bohlman suggested
the names of several attorneys, one of whom, Samuel W. McPheeters,
was a counsel for the Mutual at the hearing. Bohlman advised
8 Zimmerman testified that later investigation led him to believe that the caption had
been written by Kountzman's son, a college student doing summer work in the shop, and
that Kountzman had not known its contents at the time of delivery. No proof was offered
of its true origin.
176 NATIONAL LABOR RELATIONS BOARD
against the choice of two other attorneys on the ground that they
were directly connected with the respondent. Houghton and Zim-
merman secured the services of Wilder Lucas, an office associate of
McPheeters. With the aid of Lucas, a constitution was drafted,
membership cards were printed, new petition forms were prepared
and circulated, and arrangements were made for a mass meeting on
the- evening of Saturday, -July 3, 1937. At this meeting, which was
attended by 250 to 300 employees, a constitution was adopted, officers
were elected, and representatives from the various departments were
chosen. The organization adopted the name Mutual Relations
Association.
The Mutual immediately began an active organizational drive. As
a part of its activities, the Mutual distributed membership cards and
collected dues among the matchworkers on company property and
during working hours. It was aided in these activities by Irene Weit-
zel who actively solicited members for the Mutual among employees
of the match department while discouraging membership in the
Matchworkers' Union by threats that its members were to be laid off.
On July 8, 1937, Houghton sent Wallace a letter stating that the
Mutual had been formed, naming the officers and representatives who
had been chosen, and declaring that "at a later, date" the Mutual
wished to have a meeting "for the purpose of discussing relationship
of ourselves with the Company." The last line of the letter stated
"We now have 278 members." Without any investigation relative
to the membership claimed by the Mutual, Wallace immediately de-
cided to recognize it as, the bargaining representative of the em-
ployees in the manufacturing division of the respondent.
On Saturday morning, July 10, 1937, Houghton telephoned Wal-
lace's office seeking a letter formally recognizing the Mutual as bar-
gaining agent and asking that such letter be furnished that day in
order that it might be presented to the council of the Mutual that
evening. In the absence of Wallace, Houghton spoke to Wallace's
son, John K. Wallace, who promised to obtain such a letter. John
K. Wallace reached his father at the St. Louis Country Club and
that afternoon, while at the club, Harry B. Wallace dictated the fol-
lowing letter which the son wrote in longhand :
MUTUAL RELATIONS ASSOCIATION,
W. E. HOUGHTON, Pres.
DEAR SIR: We have received your letter of the 8th notifying us
that your organization represents a majority of our factory em-
ployees. We therefore recognize and are ready to meet with
your council at any time.
Very truly,
CuPPLES Co.,
HARRY B. WALLACE, President.
DECISIONS AND ORDERS _ 177
This letter was delivered that evening to Houghton by John K.
Wallace. Wallace attempted at the hearing to explain the prompt-
ness with which he acted in recognizing the Mutual first by stating
that he feared the "possible emergency" of the A. F. of L. and then
by stating that he acted in response to Houghton's desire to have
the letter at that time.
On July 14, 1937, the respondent shut down its penny match unit
and a number of lay-offs occurred. On July 19, 1937, Towers, of the
A. F. of L., accompanied by a number of employees, protested the
lay-offs and the alleged discrimination against the members of the
Matchworkers' Union to Bohlman and Weaver, officials of the re-
spondent. The latter denied the alleged discrimination. Towers
also requested that the respondent enter into negotiations with the
Matchworkers' Union. He was informed that the respondent had
already met with the Mutual and was told that he should consult
with Wallace.
On July 20, 1937, Towers wrote to Wallace requesting a conference
for the purpose of negotiating conditions of employment in the
"Match Factory." On the same day, Wallace sent a letter to Hough-
ton by messenger asking for a copy of the constitution and bylaws
of the Mutual and for a statement "of your total membership at
the present time, same to be signed by you and attested by your
secretary." Houghton personally delivered the constitution and by-
laws and furnished a signed and attested statement setting forth that
the membership of the Mutual "numbers 291 paid up members." On
July 26, 1937, Wallace informed Towers by letter that the Mutual
had been recognized "in compliance with the Wagner Labor Act as
the exclusive representative of all the employees . . ." On July
28, 1937, Towers replied that the letter sent by Wallace could only
be construed "as a denial of our request to meet with our committee."
He further stated that he had seen the records of the A. F. of L.
which indicated to him that the Matchworkers' Union represented a
majority,of the workers in the match department. Wallace answered
this letter on August 3, 1937, by a letter stating "the employees of our
manufacturing business as a whole constitute a unit appropriate for
the purposes of collective bargaining, rather than the separate de-
partments, of which the manufacture of matches is one," and further
stating that the respondent had already recognized the Mutual as
the exclusive bargaining representative of the employees.
On August 11 and 12, 1937, meetings of the Matchworkers' Union
were held, which resulted in a strike vote of 64 to nothing. The
strike was called on August 17, 1937, and operations in the match
-department had not been resumed at the time of the hearing.
On November 8, 1937, following a series,of conferences dating back
to July 1937, the respondent and the Mutual executed an agreement
178 NATIONAL LABOR RELATIONS BOARD
covering employees in all the manufacturing departments of the re-
spondent. According to its terms this agreement is to remain in
effect for a period of 1 year.
B. Domination of and interference with the Mutual and discrimina-
tion against the MMMatchworkers' Union
Irene Weitzel actively solicited membership for the Mutual and
assisted it in its organizational activities. Meanwhile she discouraged
membership in the Matchworkers' Union by derogatory statements
and by threats of discharge to those employees who joined it. The
respondent contends that Weitzel is not a supervisory employee and
that it is accordingly not responsible for any threats and statements
made by her. She was classified by the respondent as instructor and
relief operator and apparently lacked the authority to hire and dis-
charge. However, her duties involved primarily the supervision of
the approximately 35 employees in the penny unit. She discussed
'personnel problems with Mayhew and recommended promotions and
discharges. The employees clearly regarded expressions by Weitzel
as representing those of the management. Under all the facts, we
-find that Weitzel is a supervisory employee and that as such her
statements and actions are attributable to the respondent.
The respondent allowed employees during working hours to dis-
tributemembership cards of the Mutual in the match department and
to collect dues. Although it made no real investigation with regard
to the membership claims of the Mutual, the respondent recognized
it as the exclusive bargaining representative of its employees and at
the same time refused to confer with representatives of the Match-
workers'' Union.
The respondent on November 8 entered into an agreement with the
Mutual, an organization the growth of which was encouraged by the
respondent's acts of interference, restraint, and coercion. The grant-
ing of this agreement was clearly the consummation of the respond-
ent's unlawful course of conduct and was designed further to discour-
age the Matchworkers' Union.
We find that the respondent has dominated and-interfered with the
formation and administration of the Mutual and has contributed sup-
port'to it, and has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act. We further find that the agreement of November 8, 1937, be-
tween respondent and the Mutual is void and of no effect.
C. The discontinuance of the penny unit
The complaint alleges that the respondent, since July 17, 1937, has
ceased operations in that portion of its North Main Street plant, there-
DECISIONS AND ORDERS 179
tofore engaged in the manufacture of penny matches, for the reason
that the employees engaged in the operation and manufacture of such
penny matches had joined and assisted the Matchworkers' Union and
had engaged in concerted activities with other employees in the plant,
and elsewhere, for the purpose of collective bargaining and other aid
and protection, and for the further reason that the respondent sought
and continues to seek to avoid collective bargaining with the Match-
workers' Union. This allegation will be considered in the light of
the evidence presented at the hearing.
The respondent organized its match department in the summer of
1936 and by the early fall of that year, three units for the manufacture
of nickel matches had been placed in production. At the time the
respondent established its match department, it contemplated trans-
forming one of the nickel match units into a unit for the manufacture
of penny matches for a few months each year in order that the orders
for penny matches, constituting approximately 7.4 per cent of the total
-match orders, might be filled and a reserve stock maintained. Accord-
ingly, one machine was transformed into a penny machine early in
March 1937, and a crew of girls was engaged to operate it. Whereas
a nickel unit required 5 or 6 operators, a penny unit normally required
16. However, due to inadequate equipment and to new and inex-
perienced employees, the respondent found it necessary to engage 36
-girls for the new unit.9
On June 15, 1937, Bohlman informed Weaver, head of the match
department, that production orders were being issued for 750 cases of
#0 (penny) matches, that such orders were, "sufficient to take care,
of all 'specifications now on file and will leave some stock on hand, and
that he estimated that the required quantity of #0 matches could be
-produced by Saturday, June 19, 1937." At this time, the A. F. of L.
had-not commenced its organizational activities among the employees
of the respondent. By letter dated June 29, 1937, Weaver wrote
Bohlman,
We have issued order for 500 cases #0 Presto matches which
we figure can be produced by Friday, July 2nd.
This will give us ample stock to take care of all orders now on
file for #0 matches and leave us with a reserve stock to take care
of our July and August requirements.
This will enable us to change over the machine, for production
of #4 matches.
9 The 35 girls were employed as follows : 4 box feeders fed empty boxes into the match
machine ; 20 sliders received the boxes from the machine and slid covers over the boxes ;
6 wrappers operated the wrapping machine or did wrapping by hand ; 5 shake "s straight-
ened the matches in the boxes and attended to defective boxes. A tender was engaged to
fill the match and box bins and sweep the floor.
180 NATIONAL LABOR RELATIONS BOARD
The machine was not changed over until July 14, 1937. Mayhew
testified that this delay was due solely to the fact that certain new
machine parts necessary for the transformation were not ready until
this date, and it was decided to increase the stock of penny matches
rather than allow the machine to remain idle. The respondent's
inventory for July 19, 1937, shows a net reserve stock in #0 matches
of 4,230 cases, whereas orders for #4 (nickel matches) exceeded stock
on hand by 15,560 cases.
We think that the evidence shows that the respondent discontinued
the penny unit for business reasons and not for the reasons alleged in
the complaint.
D. The discriminatory lay-offs on July 14, 1937
1. Facts pertaining to the lay-offs
Mayhew, superintendent of the match department, testified that
at the time the respondent discontinued' the manufacture of penny
matches he instructed Irene Weitzel to lay off all employees on the
penny unit and to inform them that they would be recalled as soon
as possible. Exit reports, which constitute notice to the main office
and the pay-roll office of changes in employee status, were made out,
however, only for employees who were not members of the Mutual.
Furthermore, a list of employees on the penny unit which was pre-
pared by Mayhew and introduced in evidence indicates lay-offs on
July 14 for all persons in that department who were not members
of the Mutual, but indicates continuous employment for the persons
who were members of that organization. It is to be noted in this con-
nection that certain work remained to be done in connection with the
penny matches after the discontinuance of the manufacture of penny
matches on July 14, 1937, and also that a number of employees were
needed to operate the nickel match machine resulting from the trans-
formation on or about July 19, 1937, of the penny match machine into
a, nickel match machine. Of the 37 persons 10 who were employed in
the penny unit on July 14, 1937, 24 were working for the respondent
on July 28, 1937. This group of 24 included 14 members of the
Mutual and 10 members of the Matchworkers' Union. The persons
employed on July 14 who were not working on July 28 were all mem-
bers of the Matchworkers' Union.
The complaint alleges that the respondent on or about July 14,
1937, laid off and/or discharged 13 named employees because they
joined and formed and assisted the Matchworkers' Union.',' At the
"Clara Gotthardt, a waste packer although not listed as a penny-unit operator by
'Mayhew, was working on said unit on July 14, 1937, and was laid off.
11 The complaint was amended at the hearing to include the name of Daisy Whiteman
among the persons whom the respondent is alleged to have discriminated against. Her
case will be considered separately.
DECISIONS AND ORDERS 181
fiearing, upon motion of counsel for the Board, the Trial Examiner
dismissed the allegations as to 3 of the 13, namely, Esther Hinkel,
Minnie Hinkel, and Lucy Hinkel, who were not present to testify.
The 10 remaining persons, all members of the Matchworkers' Union,
were employed in the penny match unit at the time of its discontin-
uance on July 14, 1937, were laid off on that date, and have not since
been given other work by the respondent.
Mayhew testified that certain employees were given work in pref-
erence to others on the basis of factors such as efficiency, familiarity
with the work, and economic status. He stated in this connection
that several days before the shut-down of the penny match machine
try-outs were held for the girls in the penny unit, except the wrap-
pers,12 and that the results of the try-outs were taken into consider-
ation. The evidence shows that at most only a few members of the
Matchworkers' Union participated in such try-outs. Mayhew stated
in this regard that the try-outs were by units of four starting at the
head of the belt and that if a girl was absent at the time her unit
was tried out she lost her opportunity for a try-out.
Although advancing efficiency and similar factors as reasons for
retaining some employees rather than others, Mayhew added that he
relied on "more or less snap judgment"; that he often relied on the
judgment and recommendations of Irene Weitzel concerning the
penny-unit employees; and that, in the instant case, Weitzel pointed
out to him the employees whom she thought would be the best
workers.. We have seen above that Irene Weitzel was an active mem-
ber of the Mutual, that she actively supported the organizational
activities of the Mutual, and that she threatened action against the
employees who joined the Matchworkers' Union. The testimony of
Lena Webb, a member of the Mutual, is significant in this regard.
She stated that on the day of the lay-off Weitzel whispered in her
ear, But you don't have to worry, kid," and that on the next day
Weitzel remarked to her "you see what happened to those kids that
belonged to the A. F. of L. . . . you will see what will happen to
the rest of them on the nickel machine in about another month." It
was stipulated that had Weitzel testified, she would have denied this
testimony. However, in view of all the evidence pertaining to
Weitzel's statements and activities, we must-conclude that she made
the statements attributed to her by Lena Webb.
Having considered above the 'general testimony with respect to the
alleged discrimination, we now turn to a consideration of the indi-
vidual cases.
' Mayhew stated that , the wrappers were not given try-outs because the nature of the
work on the belt was more in line with the nature of the work on the nickel machine.
It is significant , however, that much of the work done after July 14 involved performance
other than on the nickel machines.
147841-39-vol 10-13
182 NATIONAL LABOR RELATIONS BOARD
Florence Harris was employed by the respondent on March 9, 1937,.
as a wrapper on the wrapping machine in the penny unit. After
several months, she complained of sore hands and, was transferred
to the wrapping table. On June 24, 1937, Irene Weitzel asked Harris
if she intended to attend the A. F. of L. meeting scheduled for June
25 and also stated that if she joined the A. F. of L. it would mean
trouble in the factory. On June 25, 1937, Weitzel notified Harris
of the meeting of employees which took place at the time clock and at
which Cundiff talked. Later the same day, Weitzel informed Harris
that her failure to sign the petition which Ctnidiff' was circulating
would result in a lay-off of 6 months. At the meeting of the
A. F. of L. on June 25, 1937, Harris became a member and was
elected vice president. Within a short period of time, she was de-
prived of her privilege of working on Saturday afternoon and was
informed by Weitzel that she was to be reassigned to the wrapping
machine. When Harris protested to Mayhew, Weitzel assigned her
tray-feeding work. She was engaged at this task when the penny
unit was discontinued on July 14, 1937. She was senior in point of
service to Edna Sliger, who was retained after the discontinuance
of the penny unit.
Mayhew testified Harris was not given work after July 14 because
she always complained there was too much work for her and of her
sore hands, because her constant talking interfered with the work,
and because he concluded that she was always looking for a "soft
spot." However, the exit card of Harris indicated a worker of good
skill, good production, good character, and satisfactory attendance.
Mayhew conceded, moreover, that he had never investigated her
complaints.
Harris received $13.60 per week from the respondent. At the time
of the hearing, she had a temporary job elsewhere which paid
approximately $15 to $16 per week.
Marie Ellington was employed by the respondent on March 12,
1937, as a wrapper in the penny unit. At her request, she was
thereafter given lighter work in the same unit. As in the case of
Florence Harris, Irene Weitzel asked Ellington on June 24 or 25,
1937, about the A. F. of L. meeting, warned her against joining the
A. F. of L. and solicited her signature on the petition circulated by
Cundiff. Ellington joined the Matchworkers' Union on or about
June 25, 1937, and became a member of its executive board. Shortly
thereafter, Weitzel reassigned her to the wrapping machine. Elling-
ton injured her back at this work and was absent from work the day
the penny unit was discontinued. At the hearing, Mayhew assigned
poor health and absence from work at different periods as the rea-
son for the respondent's failure 'to recall Ellington to work.
DECISIONS AND ORDERS 183
Ellington received $12.75 to $13.50 per week from the respondent.
At the time of the hearing, she had obtained no steady employment,
but had done some work for the National Youth Administration for
which she received approximately $23 per month.
Virginia Frazier was employed by the respondent from May 1937
to the close-down of the penny unit as a "slider" on the penny belt.
Although Irene Weitzel made strenuous effort to induce her to join
the Mutual, Frazier joined the Matchworkers' Union on or about
June 25, 1937, and was elected temporary recording secretary.
Mayhew conceded that she was efficient "to a certain point" and her
exit report indicated a good worker. The fact that her husband
was working and that she was always bragging about how much
money he was making was assigned as the reason for the respondent's
failure to take her back.
At the time of the hearing, Frazier had a temporary job as waitress
which paid $9 per week.
Irma Endris was employed by the respondent in the penny unit on
March 9, 1937, and worked as a wrapper until July 14, 1937. She
joined the Matchworkers' Union on June 25, 1937, and became its
recording secretary. Mayhew stated that at first she was a good
worker, but that later she always lagged behind in her work and
required help. However, her exit report referred to a worker of
good production, skill, and disposition, and recommended reemploy-
ment. Mayhew also testified that Endris was a wrapper, that he
recalled only one wrapper back to work, and that such wrapper was
a member of the Matchworkers' Union.
Irene Trail was employed by the respondent on March 9, 1937, and
worked as a wrapper in the penny unit until July 14, 1937. Al-
though she was told by Irene Weitzel not to attend the meeting of
the Matchworkers' Union one June 25, 1937, she did so and joined the
Matchworkers' Union on that date. Mayhew testified that when she
was on the job Trail was a very good worker, but that she was frail
and had been absent several times because of illness. He also
emphasized the fact that she was a wrapper. Trail's exit report
stated her to be a good worker.
While working for the respondent, Trail received approximately
$13 to $14 per week. At the time of the hearing, she had a tem-
porary job which paid approximately $13 to $15 per week.
Clara Gotthardt was employed by the respondent and worked as a
"waste packer" until July 14, 1937. She joined the Matchworkers'
Union prior to July 14, 1937. Her exit report listed her as average
in skill and good in production. Mayhew stated that his principal
season for "laying her off" was the fact that she was the last em-
ployee hired and hence he felt that some of the other girls should
184 NATIONAL LABOR RELATIONS BOARD
have preference over her. This is one of two instances in which
seniority was advanced as a reason for not retaining an employee.
It is significant in this connection that Wallace, president of the
respondent, testified at the hearing that the seniority system of the
respondent was "based on efficiency and length of service without any
fixed rhyme or reason as to which prevails."
Adele Gotthardt was employed by the respondent on March 9, 1937,
and worked as a wrapper in the penny unit until July 14, 1937. She
joined the Matchworkers' Union at its second meeting in June 1937.
Previously Irene Weitzel had warned her not to attend the A. F. of
L. meeting if she wished to hold her job. Later Weitzel made a
special effort to induce her to join the Mutual. Mayhew stated that
she was a good worker and that there was no particular reason why
she was laid off in preference to somebody else "outside the relation
of her work to some subsequent job, outside the fact that she was
a wrapper."
While working for the respondent, Adele Gotthardt received ap-
proximately $12 per week. She had not obtained other employment
at the time of the hearing.
Hazel Graetzer was employed by the respondent in the penny unit
on March 21, 1937, and except for approximately 10 days in June
when work was slack she continued until July 14, 1937. She worked
usually as a shaker but had no permanent position on the belt and
worked at various times as a packer, a slider, and a wrapper. She
was working on the slider on July 14, 1937. She joined the Match-
workers' Union during June 1937. She was senior in point of service
to a shaker and a slider who were retained by the respondent. May-
hew gave a number of conflicting reasons for not retaining her. He
testified at various times during the hearing as follows : That Graetzer
was inefficient and "flighty" ; that she talked too much ; that there
was no real reason why she should not be taken hack at a future time;
and that she was the last employee on the pay roll and accordingly
had never been considered for reemployment.
While working for the respondent, Graetzer received approximately
$11 per week. She had not obtained other employment at,the time of
the hearing.
Armele Lampe was employed by the respondent on March 9, 1937,
and worked as a box feeder in the penny unit'until July 14, 1937.
Although Irene Weitzel warned her against joining the Matchwork-
ers' Union, she did so on June 25, 1937. Subsequently Weitzel asked
her whether she had joined the Matchworkers' Union and when Lampe
denied having done so, Weitzel informed her that she knew her name
was on the union charter. Mayhew stated that he had no objection
DECISIONS AND ORDERS 185
to her work, but that she was the only girl in her family and lie thought
others needed the job more.
While working for the respondent, Lampe received approximately
$13 per week. She had not obtained other employment at the time of
the hearing.
Jessie Henry Wilbur was employed by the respondent in May 1937,
and worked as a tender in the penny unit until July 14, 1937. He
was responsible for sweeping the floors and filling the box and match
bins. He joined the Matchworkers' Union prior to July 14, 1937. At
the hearing, Mayhew stated : that at the time he hired Wilbur the
latter was working upon a project of the Works Progress Adminis-
tration; that he received assurance from Wilbur that such employment
would be again available if his job with the respondent proved to be
temporary; that under such circumstances, Wilbur was laid off when
the penny unit was closed down on July 14; that a few days. after
July 14 Wilbur informed him that he could not get his job back on
the WPA and wanted employment with the respondent; that he was
so angered by what he deemed to be Wilbur's earlier misrepresenta-
tions that he "didn't put him back to work." Subsequently, the
respondent employed a new man to perform work similar to that which
Wilbur had done.,
While working for the respondent Wilbur received approximately
$22 to $24 per week. He had not obtained other employment at the
time of the hearing.
2. Conclusions with respect to the lay-offs
We have noted that Mayhew admittedly relied upon the judgment
and recommendations of Irene Weitzel concerning the employees of
the penny unit and that, when the penny unit was closed down, Weitzel
pointed out to Mayhew the employees who she thought should be
retained. We have found that Weitzel actively supported the Mutual,
hindered the organizational activities of the Matchworkers' Union, and
warned a number of the employees against attendance at meetings of
the Matchworkers' Union or affiliation with it. We have also found
that exit reports were made out only for the members of the Match-
workers' Union and one employee listed as "neutral." We cannot in
view of these circumstances and the facts set forth in connection with
the individual cases accept the reasons assigned by Mayhew relative
to the lay-off of the persons here involved. We find that the respond-
ent laid off Florence Harris, Marie Ellington, Virginia Frazier, Irma
Endris, Irene Trail, Clara Gotthardt; Adele Gotthardt, Hazel
Graetzer, Armele Lampe, and Jessie Henry Wilbur, on July 14, 1937,
in order to encourage membership in the Mutual and discourage mem-
bership in the Matchmakers' Union.
186 NATIONAL LABOR RELATIONS BOARD
E. The alleged discriminatory discharge of Daisy Whiteman
Upon motion of counsel for the Board, the complaint was amended
at the hearing to include Daisy Whiteman among the persons whom
the respondent allegedly discharged in order to discourage member-
ship in the Matchworkers' Union.
Whiteman was employed by the respondent in the spring of 1937
and was working in the nickel unit at the time her employment ter-
minated in August 1937. She joined the Matchworkers' Union at-its
first or second meeting and was elected secretary-treasurer. She testi-
fied that when this fact became known to James Weaver, Jr., foreman
on the nickel unit, his attitude toward her changed immediately from
one of friendliness to one of disapproval.
On August 10, 1937, Whiteman became ill while at work. She testi-
fied that at this time she requested permission to go home but that at
'Weaver's request she stayed on the job until the usual quitting time.
The next day, August 11, she was too ill to work. When she reported
-for work the following morning Weaver informed her that she w as
laid off for the day because of her failure to notify him concerning her
absence.13 Both parties engaged in an angry discussion at this time
and the evidence is conflicting as to precisely what was said. Weaver
states that Whiteman quit rather than accept the lay-off. Whiteman
`denies that she quit. Following the discussion, Weaver placed an
exit card on the desk of a clerk in the superintendent's office with
instructions to fill it out with Whiteman's name and to send it to the
main office. Later the same morning Whiteman returned to the plant
and had a further discussion with Weaver. At this time, both appar-
ently apologized for their previous angry discussion and. Whiteman
asked that she be permitted to start to work again the next morning.
Weaver stated that she might come in the next morning but that her
exit card had been sent through and that if she worked again it would
be necessary for her to be reemployed. When Whiteman appeared at
the plant the next morning, Weaver informed her that she was
"through."
At the hearing, Mayhew, the respondent's superintendent, stated
that notification in case of absence was not a general plant rule and
that he could not recall any lay-off being imposed for failure to give
such notice. Although Weaver stated that he had required notice in
.his department, he failed to cite any instance where an employee had
been penalized for failing to give notice and conceded that on one
occasion no penalty was imposed where an employee in his department
13 Whiteman testified that she was unable to telephone Weaver on the day of her illness
and that when she repotted to work the next day she attempted to explain to Weaver
her inability to get word to him. Weaver testified that he had asked for an explanation
but that he did not remember what Whiteman had said.
DECISIONS AND ORDERS 187
had failed to give such notice. It appears , therefore , that the lay-off
of 1 day which Weaver imposed upon Whiteman was unusual. This
is particularly true since she was admittedly an efficient worker and
in view of her explanation to Weaver that her failure to get word
to him was due to special circumstances beyond her control. It may
be fairly concluded under the facts that Weaver's action was moti-
vated by the fact that Whiteman was an active member and officer of
the Matchworkers ' Union.
Although Weaver informed Whiteman at the time of his second
talk with her on August 12 that her exit report had been sent through,
he admitted at the hearing that he did not as a matter of fact know
whether it had been sent through to the main office at such time.
Although Whiteman stated a desire to continue in the respondent's
employ , Weaver made no attempt to check as to whether any action
had been taken with regard to it.
Under the circumstances , we cannot accept the contention of the
respondent that Whiteman quit when she was disciplined for cause.
We do not deem it necessary in this connection to determine precisely
what was said during the heated discussion between Whiteman and
Weaver on the morning of August 12. _Even if we assume, as con-
tended by Weaver, that during the discussion Whiteman stated that
she would quit rather than accept a lay-off, we are of the conclusion
that such statement was not the basis for the termination of her
employment . We conclude rather that Weaver discharged Whiteman
and merely used his controversy with Whiteman as a means to
eliminate an active member and officer of the Matchworkers ' Union.
We find that the respondent discharged Daisy Whiteman on
August 12 , 1937 , in order to discourage membership in the Match-
workers ' Union.
F. The alleged refusal to bargain collectively
At a conference held on July 19, 1937, and by letters dated July 20
and 28, 1937, Al Towers, organizer for the Matchworkers' Union,
requested Wallace, the respondent's president, to recognize the Match-
workers' Union as the collective bargaining representative of the
employees in the match department and to meet with representatives
of the Union to discuss wages, hours, and working conditions. Wal-
lace refused to accede to such requests, stating that the employees of
all the manufacturing departments of the respondent constituted the
appropriate unit and that the Mutual had been recognized as the
bargaining representative of the employees in such unit., The re-
spondent again refused to recognize the Matchworkers' Union as bar-
gaining representative of the employees in the match department
avhen request was made for such recognition at a conference held in
188 NATIONAL LABOR RELATIONS BOARD
the early part of August 1937 at which a conciliator of the United
States Department of Labor was present.
Towers stated in his letter to Wallace of July 28, 1937, that he had
inspected the records of the Matchworkers' Union and was "sure"
that it represented a majority of the employees in the match depart-
ment. He did not, however, at any time submit to the respondent any
proof of the majority which was claimed. At the hearing, there was
introduced in evidence in support of the representation claims of the
Matchworkers' Union the minutes of its meeting for August 7, 1937.
The minutes contained the statement that as of August 7 the Union
had 60 paid-up members, 6 partially paid-up members, and 6 applica-
tions for membership. The Matchworkers' Union also adverted at
the hearing to the fact that the Union on August 11 or 12, 1937,
by a 64 to 0 vote decided to call a strike of the match-department
employees.
We do not feel that on the evidence presented the Matchworkers'
Union has proved that it represented at any time a majority of the
match-department employees. According to a list of employees which
the respondent submitted in evidence, approximately 137 persons
were employed in the match department during the period inclusive
of August 11 through August 17, 1937. The list did not, however,
contain the names of the 14 union members whom we have found the
respondent laid off or discharged. Since all 14 joined the Match-
workers' Union prior to August 1937, they are most probably in-
cluded within its membership claims and very likely participated in
the strike vote. Accordingly, the Matchworkers'. Union has not
demonstrated that it represents a majority of the employees in the
match department even on the basis of acceptance of the statement
relative to membership in the minutes of the meeting for August 7.
The Matchworkers' Union did not submit in evidence any member-
ship or application cards in support of its claims.
We find that the evidence does not establish that the Matchworkers'
Union at any time represented a majority of the employees within
the unit which is alleged to be appropriate. We shall, therefore,
dismiss the amended complaint in so far as it alleges that the re-
spondent has engaged in unfair practices within the meaning of
Section 8 (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial re-
lation to trade, traffic, and commerce among the several States, and
have led, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
DECISIONS AND ORDERS
V. THE REMEDY
189
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist from further
engaging in such practices. We shall also order the respondent to
take certain affirmative action which we deem necessary to effectuate
the policies of the Act. -
We have found that the respondent dominated and interfered with
and contributed support to the Mutual. By reason of the respond-
ent's acts the Mutual cannot be a freely chosen representative of the
'employees. In order to remedy the respondent's unfair labor prac-
tices we shall order the respondent to withdraw all recognition from
and to disestablish the Mutual as a bargaining representative and
not to give effect to the contract of November 8, 1937, with that
organization.
We have found that the respondent discriminated against Florence
Harris, Marie Ellington, Virginia Frazier, Irma Endris, Irene Trail,
Clara Gotthardt, Adele Gotthardt, Hazel Graetzer, Armele Lampe,
and Jessie Henry Wilbur, by laying them off on July 14, 1937, and
that the respondent discriminated against Daisy Whiteman, by dis-
charging her on August 12, 1937.
We shall order the respondent to offer to the above-named persons
immediate and full reinstatement to their former or 'substantially
equivalent positions, without prejudice to their seniority and other
rights and privileges and to make them whole for any loss of pay they
have suffered by reason of the discrimination against them by pay-
ment to each of them of a sum of money equal to the amount he or
she normally would have earned as wages 14 from the date of said dis-
crimination to date of the offer of reinstatement, less the net earnings 15
of each during said period. All employees hired after July 14, 1937,
shall, if necessary to provide employment for those to be offered rein-
statement, be dismissed. If thereupon there is not sufficient employ-
ment available for the remaining employees, including those to be
offered reinstatement, all available positions shall be distributed among
such remaining employees in accordance with respondent's usual
method of reducing its force, without discrimination against any em-
ployee because of his union affiliation or activity, following a system
of seniority to such extent as has heretofore been applied in the con-
14 The parties stipulated at the hearing that the persons here involved "would not have
accepted employment with respondent after the strike was called on August 17, 1937." In
view of this stipulation and the fact that the operations of the match department were
suspended by the strike beginning on August 17, 1937, such persons would not have earned
any amount as wages during the period of the strike.
15 By "net earnings" is meant earnings less expenses, such as for transportation, room
and board, incurred- by an employee in connection with obtaining work or working elsewhere
than for the respondent, which would not have been incurred but for the respondent's
unlawful discrimination and the consequent necessity for seeking employment elsewhere.
See Matter of Crossett Limber Company and United Brotherhood of Carpenters and Joiners
bf America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. It. B. 440.
190 NATIONAL LABOR RELATIONS BOARD
duct of the respondent 's business . Those employees remaining after
such distribution for whom no employment is immediately available
shall be placed upon a preferential list prepared in accordance with
the principles set forth in the previous sentence and shall thereafter,
in accordance with such list, be offered employment in their former
or substantially equivalent positions as such employment becomes
available and before other persons are hired for such work.
VI. THE QUESTION CONCERNING REPRESENTATION
We have pointed out above that on various occasions during the
period from July 19,1937, to the early part of August 1937, representa-
tives of the Matchworkers' Union requested that the respondent recog-
nize the Matchworkers' Union as bargaining representative for the
employees of the match department, but that the respondent denied
such requests and stated that the Mutual had been recognized as
bargaining representative of the employees in all the respondent's
manufacturing departments.
At the hearing, counsel for the Machinists testified that some time
during April or May 1937, the respondent refused to recognize the
Machinists as bargaining representative of the maintenance men and
machinists in the match department on the ground that a contract
had already been executed with the Mutual.
We find that a question has arisen concerning the representation of
employees of the respondent.
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VIII. TIIE APPROPRIATE UNIT
The Matchworkers' Union claims that all employees of the respond-
ent in the match department, excluding supervisory employees, fore-
men, and foreladies, constitute an appropriate bargaining unit. The
Machinists asks for a separate unit composed of the mechanical main-
tenance employees in the match department. The respondent con=
tends that neither of the above units is appropriate and that any,
bargaining unit, should include all the employees, exclusive of super-
visory employees and office workers, in the 13 departments which
together comprise the respondent's manufacturing division. It will
DECISIONS AND ORDERS - 191
be helpful at the outset to discuss briefly certain facts concerning the
operations of the respondent. _
Although the respondent originally engaged wholly in the sale and
distribution of arti@les made by other companies, it at present also
manufactures a considerable number of articles such as matches, mops,
jar rings, rubber heels, rubber hose, and paper cutters. The respond-
ent maintains in connection with its manufacturing operations two
plants in St. Louis, one at Sixth and Spruce Streets and one at Cor-
nelia and Douglas Avenues, herein called the North Main Street
plant. It states that the lease on the plant at Sixth and Spruce
Streets terminates in 1940 and that all the manufacturing operations
will be located in the North Main Street plant by that date. At
present, the match department, the paper-cutter department, the jar-
ring department, and the mop department are located in the North
Main Street building. The match machines occupy the south wing
of this building. The employees of the match department normally
use an entrance opening directly into the match-machine room and
.apparently have little occasion to go to parts of the building other
than the south wing. The time clock used by the employees of the
match department is not used by any of the employees of the other
departments. Mayhew, superintendent of the match department, has
almost complete authority over employment and discharges in the
match department and the department is virtually an independent
unit as regards such matters. Although the respondent states that
it has a fixed policy of making interchanges of employees of the
,various departments, the evidence does not show that such policy has
been followed as regards the employees of the match department.
The respondent bases its contention relative to the unit largely upon
its assertion that there is an intimate coordination of all the elements
in the manufacturing department with each other and with the entire
distribution organization. It states in this regard that the respondent
has a single common office, common sales force, common purchasing
department, laboratory, maintenance force, printing establishment,
and management. It also claims that the vast majority of the em-
ployees in the manufacturing division favor an industrial unit. The
Matchworkers' Union contends that there is no community of interest
between the employees of the match department and those of the
other manufacturing departments and that in so far as employment
and conditions of work are involved the match department is
properly viewed as a separate unit.
We are of the conclusion that on the basis of the facts presently exist-
ing and particularly in view of the extent of organization of the
employees of the respondent at this time that the employees of the
respondent in its match department, with certain exceptions, constitute
an appropriate bargaining unit. The only organization which has
192 NATIONAL LABOR RELATIONS BOARD
organized the employees of the respondent on an industrial basis for
the purposes of collective bargaining we have found to be supported
and dominated by the respondent. The Matchworkers' Union has
organized only the employees of the match department. These em-
ployees should not under the facts presented be denied the benefits of
the Act, merely because the other employees of the Company are not
organized.
There remains for consideration the claim of the Machinists for a
separate unit composed of the six mechanical maintenance men in the
match department. The respondent employs a total of approximately
,26-mechanical maintenance men in all its manufacturing departments.
These men perform similar work but upon different machines. Six of
the 26 mechanical maintenance men were employed in the match de-
partment at the time operations of that department temporarily closed
down on August 17, 1937, because of the strike. The Machinists desires
a separate unit consisting of these six men. Three of the six men
worked as machinists while the respondent was constructing the match
machines, but have worked exclusively in the match department since
the match machines were installed. The other three men were em-
ployed subsequent to the establishment of the match department, but
have worked exclusively in that department since the date of their
employment. All six men work under the supervision of the superin-
tendent and foremen of the match department. Four of the six men
are members of the Machinists.
The respondent states in opposition to the unit claimed by the Ma-
chinists that all its manufacturing operations will be moved to the
North Main Street plant within the next 2 years ; that within a short
period of time all the mechanical maintenance men employed by the
respondent will- be grouped within a single maintenance department;
that the six men employed in the match department on the date of the
strike are only in that department temporarily ; that a number of the
six men will be engaged shortly in the work of moving certain machines
from the building at Sixth and Spruce Streets to the North Main
Street plant; and that at least seven' of the mechanical maintenance
men working in the other departments on the date of the strike had
worked at times as mechanical maintenance men in the match depart-
ment. The Machinists did not deny the truth of the assertions made
by'the respondent.
We are of the opinion that in view of the circumstances above set
forth the six mechanical maintenance men employed in the match
department at the time of the strike should not be established as a
separate bargaining unit. The petition of the Machinists will, there-
fore, be denied. - We are of the opinion that for like reasons the
mechanical maintenance men should not be included within the gen-
eral match department bargaining unit.
DECISIONS AND ORDERS 193
We find that the employees of the respondent in the match depart-
ment, excluding mechanical maintenance men, supervisory employees,
foremen, and foreladies, constitute a unit appropriate for the pur-
poses of collective bargaining and that said unit will insure to the
employees of the respondent the full benefit of their right to self-
organization and collective bargaining, and otherwise effectuate the
policies of the Act.
IX. THE DETERMINATION OF REPRESENTATIVES
In view of the facts set forth in Section III, subdivision F, above,
we find that the question which has arisen concerning the representa-
tion of employees of the respondent can best be resolved by, means of
an election by secret ballot: Since we have found that the respond-
ent interfered with and contributed support to the Mutual and will
order that the respondent disestablish it, the name of the Mutual
will not be placed upon the ballot.
We shall not, however, at this time fix the date for the holding
of the election since we are of the opinion that the election should
not be held until sufficient time has elapsed to permit a free choice of
representatives unaffected by the respondent's unfair practices. We
shall, at the time we specify the date on which the election is to be
held, also specify the date on the basis of which eligibility to vote
in the election shall be determined.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Matchworkers' Federal Labor Union No. 20927, International
Association of Machinists, District No. 9, and Mutual Relations As-
sociation are labor organizations within the meaning of Section 2
(5) of the Act.
2. The respondent, by dominating and interfering with the forma-
tion and administration of the Mutual Relations Association and
contributing support thereto, has engaged in and is engaging in an
unfair labor practice, within the meaning of Section 8-(2) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Florence Harris, Marie Ellington, Virginia Frazier,. Irma
Endris, Irene Trail, Clara Gotthardt, Adele Gotthardt, Hazer
Graetzer, Armele Lampe, Jessie Henry Wilbur, and Daisy White-
man, thereby discouraging membership in the Matchworkers' Federal
Labor Union No. 20927 and encouraging membership in the Mutual
Relations Association, the respondent has engaged in and is engaging
in an unfair labor practice, within the meaning of Section 8 (3)
of the Act.
194 NATIONAL LABOR RELATIONS BOARD
4. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed by Section 7
of the Act, has engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
within the meaning of Section 2 (6) and (7) of the Act.
6. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (5) of the Act.
7. A question affecting commerce has arisen concerning the repre-
sentation of employees of Cupples Company, St. Louis, Missouri,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of
the National Labor Relations Act.
8. The employees of the respondent in its match department, ex-
,cluding mechanical maintenance men, supervisory employees, fore-
men, and foreladies, constitute a unit appropriate for the purposes.
,of collective bargaining, within the meaning of Section 9 (b) of the
National Labor Relations Act.
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 respond-
ent, Cupples Company, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) In any manner dominating or interfering with the administra-
tion of Mutual Relations Association, or with the formation or ad-
ministration of any other labor organization of its employees, and
from contributing support to the Mutual Relations Association or to
any other labor organization of its employees ;
(b) Discouraging membership in Matchworkers' Federal Labor
Union No. 20927, affiliated with the American Federation of Labor, or
any other labor organization of its employees, by discriminating in
regard to their hire and tenure of employment or any term or condi-
tion of their employment, because of membership or activity in con-
nection with such labor organization;
(c) Giving effect to its contract of November 8, 1937, with the
Mutual Relations Association;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities, for the purpose of collective bargain-
ing and other mutual aid and protection.
DECISIONS AND ORDERS 195
2. Take the following affirmative action which the Board finds will'
effectuate the policies of the Act :
(a) Offer to Florence Harris, Marie Ellington, Virginia Frazier,
Irma Endris, Irene Trail, Clara Gotthardt, Adele Gotthardt, Hazel
Graetzer, Armele Lampe, Jessie Henry Wilbur,-and Daisy Whiteman
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other
rights and privileges in the manner provided in the section entitled
"The remedy" above; and place such of the aforesaid employees for
whom employment is not immediately available upon a preferential
list in the manner set forth in said section, and thereafter, in said
manner, offer them employment as it becomes available;
(b) Make whole all the employees referred to in paragraph 2 (a)
above for any losses of pay they may have suffered by reason of their
lay-off or discharge by the respondent, by payment to each of said
employees except Daisy Whiteman of a sum of money equal to that
which each would normally have earned as wages from the date of
the lay-off of each on July-44, 1937, to the date of the offer of rein-
statement or placement upon the preferential list, less his net earn-
ings during said period, and by payment to Daisy Whiteman of a
sum of money equal to that which she would normally have earned as
wages from the date of her discharge on August 12, 1937, to the date
of the offer of reinstatement or placement upon the preferential list,
less her net earnings during said period;
(c) Withdraw all recognition from the Mutual Relations Associa-
tion as the representative of any of its employees for the purpose of
dealing with it in respect to grievances, labor disputes, wages, rates of
pay, hours of employment, and other conditions of employment, and
completely disestablish said organization as such representative;
(d) Post immediately in conspicuous places throughout its plants
and other places of employment, and maintain for a period of at least
thirty (30) consecutive days, notices stating: (1) that the respondent
will cease and desist in the manner aforesaid; (2) that the respondent
withdraws all recognition from the Mutual Relations Association as
the representative of its employees and completely disestablishes it as
such representative; and (3) that the contract of-November 8, 1937,
with the Mutual Relations Association is void and of no effect;
(e) Notify the Regional Director for the Fourteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, as amended, be, and it
hereby is, dismissed in so far as it alleges that the respondent hag
engaged in unfair labor practices within the meaning of Section 8 (5)
of the National Labor Relations Act.
196 NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint , as amended , be, and it
hereby is, dismissed, without prejudice in so far as it alleges that the
respondent discriminated in regard to the hire and tenure of employ=
ment of Esther Hinkel, Minnie Hinkel, and Lucy Hinkel.
IT IS FURTHER ORDERED that the petition for an investigation and
certification of representatives filed by International Association of
Machinists, District No. 9, affiliated with the American Federation
of Labor, be, and it hereby is, dismissed.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat . 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 1, as
amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Cupples Company, St . Loilis, Missouri, an election by secret
ballot shall be conducted at such time as the Board shall hereafter
direct, after it is satisfied that there has been sufficient compliance
with its order to dissipate the effects of the unfair labor practices of
the respondent, under the direction and supervision of the Regional
Director for the Fourteenth,Region, acting in this matter as agent
for the National Labor Relations Board, and subject to Article III,
Section 9 , of said Rules and Regulations-Series 1, as amended, among
the employees in the match department of Cupples Company, em-
ployed by' said company during a pay-roll period which we shall in
the future specify, including those employees whom we have deter-
mined to have been discriminatorily laid off or discharged during July
and August 1937, but excluding mechanical maintenance men, super-
visory employees , foremen, and foreladies , and excluding also those
employees who have at that time quit or been discharged for cause, to
determine whether or not they desire to be represented by Match-
workers ' Federal Labor Union No. 20927, affiliated with the American
Federation of Labor, for the purposes of collective bargaining.