Empire Worsted Mills, Inc.

National Labor Relations Board - Board Decisions

Apr 8, 1938

6 N.L.R.B. 513 (N.L.R.B. 1938)

In the Matter of EMPIRE WORSTED MILLS, INC. and TEXTILE WORKERS
ORGANIZING COMMITTEE OF THE COMMITTEE FOR INDUSTRIAL
ORGANIZATION
Case No. C-326.-Decided April 8, 1938
Woolen Textile Industry-Interference , Restraint or Coercion : expressed op-
position to outside labor organization-Conmpany-Dominated - Union: suggesting
organization of ; organization with assistance of supervisory employee ; disestab-
lished as agency for collective bargaining-Discrimination : discharges ; charges
of, dismissed as to one employee-Reinstatement Ordered-Back Pay: awarded.
Mr. Norman F. Edmonds, for the Board.
Rogerson, Clary d Hewes, by Mr. J. Russell Rogerson, of James-
town, N. Y., for the respondent.
Mr. Joseph E. Brill, Mr. Sidney L. Cahn, and Mr. Alfred Udoff,
of New York City, for the T. W. O. C.
Van Vlack & Bargar, by Mr. Allen E. Bargar, of Jamestown, N. Y.,
for the Shop Union.
Mr. Victor A. Pascal, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by the Textile Workers Organizing Com-
mittee, herein called the T. W. O. C., the National Labor Relations
Board, herein called the Board, by Henry J. Winters, Acting Re-
gional Director for the Third Region (Buffalo, New York), issued
its complaint, dated August 24, 1937, against Empire Worsted Mills,
Inc., Jamestown, New York, herein called the respondent, alleging that
the respondent had_ engaged and was engaging in unfair labor prat=
tices affecting commerce within the meaning of Section 8 (1), (2),
and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. The complaint and the
notice of hearing were duly served upon the respondent, the
T. W. O. C., and the Empire Worsted Mills Shop Union, which is
referred to in the complaint and is herein called the Shop Union.'
Subsequently, the respondent filed an answer to the complainant
in which it denied that the Board had jurisdiction over it and denied
that it had engaged in the, unfair labor practices set forth in the
complaint.
i The Shop Union is termed In the complaint and Its membership cards as stated above.
In its bylaws, it is termed "Empire Worsted Shop Union."
513
514 NATIONAL LABOR RELATIONS BOARD
Pursuant to the notice, a hearing was held in Jamestown, New
York, on September 2, 3, 4, 7, 8, and 9, 1937, before Robert M. Gates,
the Trial Examiner duly designated by the Board. The Board,
the respondent, the T. W. O. C., and the Shop Union were repre-
sented by counsel and participated in the hearing . Full opportunity
to be heard , to examine and cross -examine witnesses , and to produce
evidence bearing upon the issues was afforded all parties.
During the hearing , the Board moved to amend the complaint so
as to include an allegation stating in substance that the respondent
had engaged in and was engaging in unfair labor practices Nv]thin the
meaning of Section 8 (1) and (4) of the Act by discharging James
Provenzano for the reason that he had testified as a witness for
the Board in the proceeding. At the close of the Board's case,
counsel for the Board moved to conform the pleadings to the proof.
Both these motions were granted by the Trial Examiner. During
the course of the hearing , the Trial Examiner made several rulings
on objections to the admission of evidence . The Board has reviewed
these rulings and the rulings made with respect to other motions of
the parties and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
Thereafter , the Trial Examiner filed his Intermediate Report,
dated December 14, 1937, in which he found that the respondent had
engaged in unfair labor practices affecting commerce as alleged in
the complaint except that he found that the two employees , referred
to in the complaint, had not been discharged because of the respond-
ent's unfair labor practices and he recommended that the complaint
be dismissed in so far as it referred to the respondent 's discharge of
them.
On December 22, 1937, the T. W. O. C. filed exceptions to portions
of the Intermediate Report and requested to be heard in oral argu-
ment before the Board . Pursuant to notice served upon counsel for
the T. W. O. C., the respondent, and the Shop Union, a hearing was
held before the Board on February 9, 1938, in Washington, D. C.,
for the purpose of such oral argument . Counsel for the T. W. O. C.
appeared and participated in the oral argument . In lieu of arguing,
the respondent filed a brief , which has been considered by the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent , a New York corporation, is engaged in the manu-
facture and sale of worsted cloth at its only mill, in Jamestown, New
York. When operating to capacity, the mill employs approximately
DECISIONS AND ORDERS 515
640 persons, most of whom are engaged in production and mainte-
nance work in a non-supervisory capacity. C
In its manufacturing operations, the respondent uses approximately
40,000 pounds of wool a week, at least 95 per cent of which comes
from outside the State of New York, $7,000 worth of dyes every 6
months, approximately 60 per cent of which comes from outside the
State of New York, less than 500 pounds of rayon every 6 months,.
all of which comes from outside the State of New York, and other
miscellaneous materials.
During the past 3 years the respondent has sold all its manu-
factured products to Rittenberg Brothers, a copartnership doing busi-
ness in New York City. The approximate value of this merchandise
during the period from August 1, 1936, to July 31, 1937, was $1,500,-
000. Approximately 70 per cent in volume of this merchandise was
shipped to Rittenberg in New York City, 5 per cent to other places
within the State of New York, and 25 per cent to places outside the
State of New York. All the merchandise shipped to Rittenberg in New
York City was carried by the Erie Railroad. At the hearing, counsel
for the Board and the respondent stipulated that all freight going
from Jamestown by way of the Erie Railroad passes through the
States of Pennsylvania and New Jersey before arriving at New York
City. Approximately 331/3 per cent of the merchandise shipped from
the respondent to Rittenberg in New York City is reshipped by
Rittenberg to points outside the State of New York.
H. THE UNIONS
Textile Workers Organizing Committee is a labor organization
affiliated with the Committee for Industrial Organization, admitting
to membership the production and maintenance employees of the
respondent, exclusive of supervisory employees.
Empire Worsted Mills Shop Union is an unaffiliated labor organi-
zation admitting to membership, according to its bylaws, all wage
workers employed by the respondent who have been in its employ
more than 30 days. The evidence indicates, however, that foremen
are not eligible for membership.
III. THE UNFAIR LABOR PRACTICES
A. Negotiations between the T. TV. 0. C. and the respondent
The record indicates that the respondent's employees were not rep-
resented by any labor organization prior to April 1937, when the
T. W. O. C. commenced its organizational activity among them. By
the middle of June 1937, approximately 500 employees had become
members of the T. W. O. C. Between June 15 and July 1. 1937,
516 NATIONAL LABOR RELATIONS BOARD
three conferences were had, at which the T. W. 0. C. sought to induce
the respondent to recognize it as the employees' bargaining agent and
to negotiate a contract. According to Charles Rosen, subregional
director of the T. W. 0. C., at the conference held on July 1, 1937,
J. Russell Rogerson, one of the respondent's directors and attorneys,
questioned whether the T. W. 0. C represented a majority of the
employees and stated that "people have a right to change their
mind." The negotiations were discontinued when the respondent
discharged Angeline Conti and the T. W. 0. C. filed charges with
the Regional Director alleging that she had been discharged because
of her union activity.
B. The Shop Union
While the respondent appeared to be negotiating with the
T. W. 0. C., its mill was the scene of ,unusual activity which was
intended to compel the employees to renounce their affiliation with
the T. W. 0. C. and become members of the Shop Union.
Shortly after the second conference between the representatives
of the T. W. 0. C. and the respondent, a petition was circulated
through the mill by William Beck, foreman of the combing depart-
ment, and by other supervisory and non-supervisory employees, which
all the employees were asked to sign. Beck testified that the petition
had been given to him by John Greenwood, the respondent's depart-
mental superintendent, who had instructed him to circulate it
through the mill. At the hearing, one of the witnesses testified that
the petition read as follows : "I the undersigned wish to take this
opportunity to express my complete confidence in Mr. Hjalmar
Swanson and those associated with him in the management of the
mill." Beck testified, in part, -as follows :
Q. What was meant by the petition?
A. To stand by the company.
Q. In the face of what?
A. I don't know.
In view of the pending efforts of the T. W. 0. C. to organize the
respondent's employees and to enter into a contract with the respond-
ent, it is apparent that the petition was intended to inform the
employees that the respondent considered the activities of the
T. W. 0. C. to be adverse to its own interests.
Although there is testimony in the record to the effect that, in the
-early part of June 1937, some of the wool sorters had spoken among
themselves about organizing a shop union, no such plan was suggested
to the employees generally until Rogerson spoke to them at meetings
held about June 19 or 21, 1937, when the respondent summoned the
.entire day and night shifts to separate meetings at'the mill during
DECISIONS AND ORDERS 517
working hours. Such general meetings had been held at no time in
at least 5 years and probably never before. The programs of both
meetings were substantially alike and consisted of speeches by the
respondent's officers, including Rogerson. There is considerable con-
flict of testimony as to what Rogerson said. However, Rogerson
testified that his speech included statements to the effect that the
respondent was burdened with a great debt and that any substantial
loss would result in the mill closing, that the respondent's officers
had been visited by four men who claimed to represent the employees
and the C.I.O.; that none of these men were employees of the mill
or identified with its operations, that the respondent did not know
whether these men represented the employees "and yet they have
seen fit to tell Mr. Swanson the conditions under which you will
work in the plant," that the employees were free to join any labor
union or not to join one, that the respondent would fully comply
with the Act, and that "you may, if you so desire, organize your
own union consisting solely of employees of this company." There
is testimony that Rogerson emphasized his gratuitous suggestion
that the employees might organize their own union.
Other petitions were circulated among the employees. Two peti-
tions were for the signatures of the employees who desired to become
members of a shop union, which was then being organized. The
record clearly indicates that they were circulated during working
hours, in the presence and with the consent of foremen, and, accord-
ing to Beck, in some instances, at his direction.
Within a short time Shop Union membership cards appeared at
the mill. They were circulated among the employees in the various
departments by foremen and by other employees, often at the direc-
tion of foremen. In some instances, the membership cards were
returned to the foremen's desks, examined by them, and then
collected by representatives of the Shop Union.
Clement Showier, foreman of the spinning, winding, and twisting
departments, testified that he had caused the cards to be distributed
in his departments because the foremen had been instructed by a
Shop Union committee to do this. He further testified that he caused
the cards to be distributed twice because not all the girls had time
to sign them when they had been first distributed.
Beck testified that he called groups of employees in various depart-
ments away from their work and spoke to each group separately,
urging them to assist in the organization of the Shop Union and in
recruiting members.
Other supervisory employees, in addition to those referred to above,
also urged the employees to renounce their affiliation with the T. W.
O. C. and become members of the Shop Union.
518 NATIONAL LABOR RELATIONS BOARD
Norman Campbell, who was elected president of the Shop Union,
was employed by the respondent as a carpenter, maintenance man,
and occasionally as a watchman. It appears that,, during working
hours, he went through the various departments of the mill dis-
tributing and collecting Shop Union cards and otherwise assisting the
Shop Union. In June 1937, his hours of work were changed so that,
instead of remaining on the day shift, he alternated between the day
and night shifts, changing every 2 weeks. After his activity in
behalf of the Shop Union commenced, he visited the various depart-
ments in the mill during working hours without the tools which he
formerly had usually carried and dressed in his street attire instead
of his customary working clothes.
As a result of these activities the Shop Union secured approxi-
mately 565 members, 520 of whom paid dues.
Elections to select representatives to the Shop Union committee
and the committee meetings were held at the mill during working
hours.
In contrast to its long negotiations with the T. W. 0. C., the
respondent recognized the Shop Union as the representative of the
employees within 2 days after the Shop Union requested it to do so.
About 2 or 3 weeks later the respondent announced a general increase
in wages of 10 per cent.
James Provenzano testified that Beck had told him that he had
gone to Swanson and had secured permission to "break up the C. I. 0."
and start another union. Beck denied that he had said this and
Swanson testified that he had instructed the foremen "to watch their
step and mind their own business and don't mix up with the union".
It is unnecessary to resolve this apparent conflict in testimony as it
is obvious that, regardless of whether or not Beck and other em-
ployees had been specifically instructed by the respondent to "break
up the C. I. 0." and compel the employees to join the Shop Union,
the respondent's supervisory employees waged an intense campaign
to attain this result and openly assisted other employees in their efforts
in behalf of the Shop Union.
We find that the respondent has participated in, dominated, and
interfered with the formation and administration of the Shop Union
and has contributed support to it.
We find that, by the acts above set forth, the respondent has inter-
fered with, restrained, and coerced its employees in the exercise of the
right to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of
collective bargaining and other mutual aid and protection as guar-
anteed in Section 7 of the Act.
DECISIONS AND ORDERS 519
C. The discharges
James Provenzano had been employed by the respondent for 2
years as a noils packer in the combing department. On September
2, 1937, he testified in support of the allegations in the complaint.
Provenzano subsequently testified that, when he returned to the mill
on September 3, 1937, he found that another man was working in his
stead and that his card had been removed from the rack, indicating
that he had been discharged. He further testified that his foreman,
Beck, told him that he did not know when he would be needed again
and that he should stay at home until Beck called for him. As indi-
cated above, the complaint was thereupon amended to include alle-
gations to the effect that the respondent had engaged in unfair labor
practices affecting commerce within the meaning of Section 8 (1)
and (4) of the Act by discharging Provenzano for the reason that
he had testified as a witness for the Board in the proceeding. Beck
testified, however, that, as Provenzano had been subpenaed to testify
at the hearing and, as he did not know how long Provenzano would
be away, he had engaged another man temporarily and that Proven-
zano `vas working again on September 8, 1937, when the mill reopened
after having been closed for the Labor Day week end. This testimony
was not contradicted at the hearing.
The evidence concerning Provenzano does not establish that he was
discharged or otherwise discriminated against because he had given
testimony under the Act. The complaint with respect to him will
therefore be dismissed.
Angeline Conti had been employed by the respondent in its spin-
ning department for about 6 years. Mrs. Conti joined the T. W. O. C.
on May 11, 1937, and openly wore a T. W. O. C. button at the mill.
She spoke with the women in her department about the T. W. O. C.,
distributed its membership cards, and secured about 15 members.
According to Mrs. Conti, her foreman, Showier, became antagonistic
to her shortly after the T. W. O. C. commenced its activity at the
mill. Since about June 21, 1937, the respondent had known that her
husband, who was also employed at the mill, was a member of the
T. W. O. C. shop committee.
On July 13, 1937, Clara Van Derwark, a Shop Union member, and
Mrs. Conti had an argument during working hours. There is a con-
flict of testimony as to which of them first employed profanity. The
record indicates, however, that it was not unusual for women in this
and in other departments of the mill to use profanity, and it appears
that no woman had been discharged before for that reason. Mrs. Van
Derwark complained to Showier that Mrs. Conti had called her in-
decent names. Making no investigation of the complaint and relying
solely upon Mrs. Van Derwark's version of the incident, Showier
80618-38-voL. vt--34
520 NATIONAL LABOR RELATIONS BOARD
discharged Mrs. Conti on July 14, 1937. Mrs. Conti saw Greenwood
at Showler's suggestion, but was told that "if she used those words
she was through." Greenwood testified that he had made no investi-
gation of the incident other than to speak with Showier and that,
regardless of what facts might come or might have come to his atten-
tion, the decision of Mrs. Conti's discharge would not be changed.
Mrs. Conti also appealed to Swanson for reinstatement, but she re-
ceived no satisfactory answer.
The respondent argued that, as Showier had told Mrs. Conti that
if she was going to swear at people she was to get her things and "get
out", he did not actually discharge her. It overlooked the following
testimony of Showier :
Q. You went over and told Angeline Conti if she was going to
use that language she could get out?
A. I told her that if she used that language she would have
to take her things and get out.
Q. In other words, you discharged her?
A. Yes.
It is apparent that Mrs. Conti was discharged for the reason that
she was a member of and assisted the T. W. 0. C. and not because of
her use of indecent language, as the respondent claimed. Despite
their frequent use of indecent language, none of the other women in
the department had been discharged for this reason. Showier, who
was openly hostile to Mrs. Conti because of her union activity, readily
seized upon her altercation with Mrs. Van Derwark as an opportunity
to be rid of an enthusiastic worker for the T. W. 0. C. and to deter
other employees from engaging in like activity.
We find that Angeline Conti was discharged for the reason that
she had joined and assisted the T. W. 0. C., and that the respondent
has thus discriminated with respect to her hire and tenure of employ-
ment, thereby discouraging membership in the T. W. 0. C.
We find that, by the acts above set forth, the respondent has inter-
fered with, restrained, and otherwise coerced its employees in the
exercise of the right to self-organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining and other
mutual aid and protection as guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that activities of the respondent set forth in Section III B
and C above, occurring in connection with the operations of the
respondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow-of commerce.
DECISIONS AND ORDERS
THE REMEDY
521
The Shop Union, having secured its members largely as a result
of the respondent 's unfair labor practices , has been designated as the
bargaining agent of the respondent 's employees because of the re-
spondent 's, and not because of the employees ', free _ choice. We shall
therefore order the respondent to withdraw all recognition from the
Shop Union and disestablish it as representative of its employees for
the purposes of collective bargaining.
As we. have found that Angeline Conti was discharged for the
reason that she had joined and assisted the T. W. O. C., we shall order
the respondent to offer to reinstate her to her former position and
to pay her a sum of money equal to that which she would have re-
ceived as wages from the date of her discharge to the date of the
Intermediate Report and from the date of this order to the date of
such offer of reinstatement , less any sum which she has earned during
said periods . As the Intermediate Report recommended the dis-
missal of the complaint as to Angeline Conti , the respondent should
not be required to pay her back pay for the period between the date
of the Intermediate Report and the date of this order.
We shall also order the respondent to cease and desist from the
unfair labor practices in which it has been engaged.
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. Textile Workers Organizing Committee and Empire Worsted
Mills Shop Union are labor organizations within the meaning of
Section 2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of Empire Worsted Mills Shop Union and by lending sup-
port to it , the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (2) of the Act.
3. By, discriminating in regard to hire and tenure of employment
and thereby discouraging membership in a labor organization, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing' its employees
in the exercise of their rights guaranteed by Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the. Act.
5. The aforesaid labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
522 NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the findings of fact and conclusions of law, and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that the respondent,
Empire Worsted Mills, Inc., its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Discouraging membership in Textile Workers Organizing
Committee or any other labor organization of its employees by dis-
criminating in regard to hire or tenure of employment or any term
or condition of employment;
(b) Dominating or interfering with the administration of Em-
pire Worsted Mills Shop Union or dominating or interfering with'
the formation or administration of any other labor organization of
its employees, or contributing support to Empire Worsted Mills
Shop Union or 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 purpose of collective bargaining and other
mutual aid and 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) Offer Angeline Conti immediate and full reinstatement to her
former position without prejudice to her seniority and other rights
and privileges;
(b) Make whole Angeline Conti for any loss of pay she may have
suffered by reason of her discharge, by the payment to her of a
sum of money equal to that which she normally would have earned
as wages from July 14, 1937, the date of her discharge, to December
14, 1937, and from the date of this order to the date of such offer
of reinstatement, less the amount which she has earned during said
periods;
(c) Withdraw all recognition from Empire Worsted Mills Shop
Union as a representative of its employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of work, and com-
pletely disestablish said Shop Union as such representative;
(d) Immediately post notices to its employees in conspicuous places
throughout its mill and maintain such notices for a period of thirty
(30) consecutive days stating (1) that the respondent will cease and
desist in the manner aforesaid; and (2) that the respondent has with-
DECISIONS AND ORDERS 523
drawn and will refrain from all recognition of Empire Worsted
Mills Shop Union as a representative of its employees and com-
pletely disestablishes it as such representative ;
(e) Notify the Regional Director for the Third Region in writing
within ten ( 10) days from the date of this order what steps the
respondent has taken to comply therewith.
And it is further ordered that the complaint be, and it hereby
is, dismissed to the extent that it concerns the discharge of James
Provenzano.