Hawk & Buck Co., Inc.

National Labor Relations Board - Board Decisions

Jul 24, 1940

25 N.L.R.B. 837 (N.L.R.B. 1940)

In the Matter of HART. & BUCK CoaiPANY, INC.' and UNITED
GARMENT WORKERS OF AMERICA, LOCAL No. 229
Case n7o. C-1504.-Decided July O .4; 1940 -
Jurisdiction : garment manufacturing industry.
Unfair Labor Practices
Intertetence, Restraint, and Coercion: anti-union statements; interrogation con-
cerning union membership: transfer and discharge of prominent union mem-
bers: interference with right of employees to bargain collectively; advance
announcement of refusal to agree to possible collective bargaining requests
Discrinatnatiovn.: transfers and discharges for union membership and activity.
Te,stimonij v uder the Act: discharge of employee for testifying at prior hearing,
charges of dismissed -
Remedial Orders : reinstatement and back pay awarded.
Employer 'ordered 'to reinstate discriminatorily discharged employee, who
,failed to,earn,the•minimum-wage,required, under the Fair Labor Standards
Act. for a minimum period of four months under working conditions that
would afford her a reasonable opportunity to earn the minimum wage re-
quired under the Fair Labor Standards Act and thereafter to continue
her as a regular employee if her average weekly earnings during the last
three weeks of the four-month period were at least equal 'to the minimum
wage required under the Fair Labor Standards Act.
Practice and Procedure : effect of agreement participated in by Board agent
,purporting • to compromise- unfair labor practices engaged in prior to such
agreement
Mr. Alba Martin, for, the Board.
Sim,on and Wynn, by Mr. Sproesser Wynn, of Fort Worth, Tex.,
for the respondent.
Mr. W. R. Brooks, of Kansas City, Mo., Mrs. Bertha Shelnutt, of
-Waco. Tex., and Mr. Joseph A. Padway, by Mr. H. S. Thatcher, of
Washington,-D. C., for the Uriion.
Mr. Harold Weston, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon chhrges and amended chaiges duly filed by United Garment
Workers of America, Local No. 229, herein called the Union, the
National Labor Relations Board, herein called the Board, by the
25 N. L. R. B., No. 94. - 837
2s3036-42=vol. 25-54
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director for the Sixteenth Region (Fort Worth, Texas),
issued its complaint dated October 9, 1939, against Hawk & Buck
Company, Inc., Fort Worth, Texas, herein called the respondent,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (3), and (4) and Section 2 (6) and (T) -of the Na-
tional Labor, Relations Act, 49 Stat. 449, herein called the Act. A
copy of the complaint, accompanied by notice of hearing, was duly
served-upon the respondent -and upon'the Union.
With respect to the -unfair labor practices, the complaint alleged,
in substance , ( 1) that the respondent transferred Bertha Shelnutt
and Rorie Moser to less favorable positions, thereafter discharged
Bertha Shelnutt, Roxie Moser and Lula Godsey, and has at all times
refused to reinstate them to their regular positions , for the reason
that each of them joined or assisted the Union and engaged in con-
certed activities for the purposes of.collective bargaining and other
mutual aid and protection; (2) that the respondent discharged and
refused to reinstate Bertha Shelnutt for the further, reason that she
has given testimony under the Act; and (3) that by the foregoing
acts and by 'other acts, the respondent interfered with, restrained,
and coerced its e'mploy-ees in the exercise of the rights 'guaranteed
in Section 7 of the Act.
On October 21, 1939, the respondent filed its answer denying the
averments of unfair labor practices and alleging affirmatively that
Shelnutt was discharged for the violation of previously published
rules of the respondent ; that Moser and Godsey refused offers of
reinstatement under the same tenure and ,"conditions as'other em-
ployees in' the same category ; and that, on September 20, 1938, the
respondent had, pursuant to a settlement agreement participated in
',by, the Regional Director of the Board; posted a cease and desist
notice in its plaiit.that remedied aiiy unfair labor'practice of which it
might have been guilty prior to the'date`of said settlement.
Pursuant to notice, a hearing was held in Waco, Texas, on October
23, 24, 25, 26, and 27, 1939, before Josef L. Hektoen, the Trial Ex-
aminer duly designated by thetBoai•d.•1'The Board and the respondent
were represented by counsel and:the Union by a representative,' and
were afforded full opportunity,:to) be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the
issues. At the conclusion'o£.the, Board's case, the respondent moved
to dismiss the complaint,; on the ground that, the evidence failed
to substantiate' thel'illegationsof the, complaint. This motion was
denied by tine Trial Examine r. During tlie. course of . the. hearing,
the Trial EXaininer made rulings on other motions and on objections
' The Union was also represented by Bertha Shelnutt , one of the complainants herein.
HAWK & BUCK COMPANY, INC. 839
to the admission of evidence. Subsequent to the hearing, counsel
for the Board filed a written motion to conform the pleadings to the
proof, to which motion the respondent filed objections. The motion
was granted by the Trial Examiner in his Intermediate Report.
The Board has reviewed all rulings made by the Trial Examiner
during the course of the hearing and in the Intermediate Report on
motions and on objections to the admission of evidence and finds that
Iio prejudicial errors were committed. These rulings are hereby
affirmed.
On' November 13, 1939, a brief was filed by the respondent for the
Trial Examiner's consideration. Thereafter the Trial Examiner
.issued his Intermediate Report, dated March 9, 1940, copies of which
were duly served upon the parties, in which he' found that the re-
spondent had engaged in and was engaging in,unfair labor practices
affecting commerce within the meaning of Section 8 (1), (3), and
(4) and Section 2 (6) and (7) of the Act.' He recommended that
the respondent cease and desist from its unfair labor practices, that
it reinstate Bertha Shelnutt, Lula Godsey, and Roxie Moser with
back pay, and that it take certain other appropriate action to remedy
the situation brought about by, its `unftiir labor practices.
On, March 23, 1940, the respondent filed its exceptions to the Inter-
mediate Report and requested oral argument. On May 14, 1940,
the respondent filed a brief in support of its exceptions, and on
June 4, 1940, the Union filed a brief.
Pursuant to notice a hearing for the purpose of oral argument
was held before the,Board on 'June 4, 1940,, at Washington,, D. C.
Tlie" respondent and the Union were represented by) counsel and
participated in the argument. ,
The Board has reviewed the exceptions to the Intermediate Report
filed by the respondent and his considered the briefs filed,by the
parties and finds that the exceptions are, without, merit. in so far, as
they are, inconsistent with the findings, conclusions, and order set
forth below. , , -
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
L' THE BUSINESS'OF THE RESPONDENT'
Hawk &,Buck Company, Inc., a Texas corporation -\vitlilits princi-
pal office in Fort Worth, Texas, is engaged at its plant, in Waco,
Texas, any the, manufacture of overalls, jumpers, work pants, wpi;k
shirts, and coveralls. '
During 1937 and, 1938 the respondent used ,'raw in valued
at, approximately $500,000, about- 84 per cent of wh cli were delivered
840 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
to the respondent's, Waco plant from points outside, the State of
Texas. The respondent's volume of business exceeded $800,000 gross
in 1937, $725,000 in 1938, and $650,000 in 1939 to the date of the hear-
ing. Approximately 20 per cent of its finished products are shipped
by the respondent from its plant at Waco to points outside the State
of Texas, principally to Oklahoma, Louisiana, Arkansas, and New
Mexico.
Tinder normal conditions, the'reEpondent employs approximately
225 employees at its Waco plant.'
II. THE ORGAN lZ ATION INVOLVED
United Garment Workers of 'America, Local No. 229, is a labor
organization affiliated with the American Federation of Labor, 'ad-
mitting to membership employees of the respondent.
III. THE I1NF.AI11 LABOR PRACTICES
A. Interference, re..st,'aint, and Coercion
Late in April 1938, about 1 month after it had obtained its charter,
the Union began an organizational drive among the respondent's em-
ployees. Shortly thereafter the respondent took steps designed in
large part to impede the growth of the Union and otherwise dis-
courage the exercise by its employees of the rights guaranteed by
the Act.
On about April 29, 1938, the morning after Bertha, Shelnutt, an
employee, had joined the Union, Plant Superintendent John Cassidy
asked her why she had done so. During the ensuing conversation
Cassidy said, "You know I pay wages equal to [any in] the south-
west, and that is what you organize a union for, better wages and
better conditions. We can't do that. We--can't -pay any more."
On two later occasions, during July 1938, Cassidy had the oper-
ating power turned off to enable him to address the employees in the
plant during working hours. Upon the first such occasion, about
July 10, he told the employees that they were not working as they
should, and "that there was so much talking going on, and such an
uproar, that he wanted to try to see what was wrong." Cassidy
went on to say that, with respect to joining a union, the employees
could do just as they wished, "but I can tell you one thing, we are
not going union, and I want,you all to get down to your machines
and get'through aiid get the work out." 3 In his next addre"ss^ about
July 12, Cassidy told the employees that they still were not working
2 Counsel for the respondent stated in briefs and at oral argument that during rush
seasons over 300 employees are sometimes employed.
2 Cassidy also mentioned his former membership in the A . F of L. and said that if he had
to join either the C. I. 0. or the A. F. of L., he would join the latter.
HAWK & BUCK CONIPANY, INC. 841
as they should and that "if there is any question pertaining to any-
thing in the factory that you want to know, I want you to ask it
now." When one of the employees asked if it was necessary to join
the-Union to hold a job, Cassidy replied in the negative, adding that
"the factory didn't aim to go union anyhow." Cassidy testified that
during one of these addresses, he stated that while employees could
join "any union they wanted to, .. . we didn't feel we could pay
union wages and we didn't feel we would sign a contract with the
Union."
Cassidy's speeches, coming while the Union was attempting to gain
a foothold in the factory, were plainly designed to impede union or-
ganization. There was no legitimate reason for Cassidy at this time
to emphasize to his employees that the plant was 'not going union"
or that "we didn't feel we could pay union wages, and we didn't feel
we would sign a contract with the Union." 4 Cassidy did not stop
with these remarks, moreover, and about August 15, 1938; he shut off
the power for a third time and addressed his employees as follows :
"Now, girls, there is a lot of confusion in here about this Union and
about belonging to the Union, and a lot of people are dissatisfied.
They have been coming to me and asking me how they can get out of
the Union. I want to tell you now if any of you are dissatisfied with
it, if you will ask them for their papers, . .. they will give them
back to you, and if they don't, you come into my office and we will
see what we can do about it." On August 8, 10, and 12, a few days
before Cassidy delivered his third address, the union bargaining com-
mittee met with him in his office.' It is significant that Cassidy chose
an occasion shortly after his first meeting with the representatives of
the Union to counsel the employees how they could withdraw from the
Union.
There is no doubt under the circumstances that, by Cassidy's three
talks and by his remarks to Slielnutt the respondent sought to, and
did, make clear to its employees its opposition to the Union. The re-
spondent, however, contends that the Board is now barred from find-
ing that any events transpiring prior to September 19, 1938,
constitute unfair labor practices. In support, of its contention, the re-
* The above statements by Cassidy in part relate to subjects of collective bargaining
which the respondent might later be called upon to consider « ith the appropilate repre-
sentatives of its employees . It is clear that while the respondent is not obligated under
the Act to agree to any specific terms proposed by the Union. the respondents declaration,
in advance of any demands. that it would not enter into a contract with the Union, agree
to a closed shop , or pay union wages , was intended to discpurage membership in,the Union
by indicating that the Union would be ineffective as a bargaining agent, and was obstructive
of the employees' right to self-organization
5 At these conferences, the respondent was also represented by Forelady Olgie York. The
union committee was composed of five employees. Lula Godsey, Bertha Shelnutt, Katy
Segrest, Dana Grant, and Beryl Payne. At the conferences of August 10 and 12, respec-
tively, Cadena and Brooks, representatives of the American Federation of Labor, also
appeared for the Union.
842, DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
spondent relieson,the fact, that charges were filed by the Union on
August 23. and September • 6, 1938, relating to the. above-described
events and to,the,discharges of Lula ,Godsey and Minnie Thomas, and
were adjusted by the. respondent's posting of'a notice-to 'its, employees
on September 19, 1938, by its, contemporaneous agreement not to com-
mit further unfair labor practices; and by its reinstatement of Godsey.el
It has been our policy, to give effect to an agreement made in,
settlement of unfair labor 'practices allegedly engaged in by an em-
ployer and to refrain from proceeding on the basis of such 'alleged
practices if an agent of the Board participated in the settlement
and if the employer subsequently observed the terms of the settle-
ment agreement and did not thereafter continue its unfair labor
practices.' The Union, now asserts, that the respondent has engaged.
in unfair labor practices subsequent to the settlement. It thus re-
mains for us to consider whether the respondent observed the settle-
ment upon which it now relies or,whether it breached the agreement
by continuing to • engage in unfair labor practices after September
19, 1938.
The complaint alleges that, subsequent to.September 19, 1938,,the
respondent discriminated in regard to the hire and tenure of employ-
ment of Bertha Shelnutt, Lula Godsey, •and.Roxie Moser. We turn
to a consideration of the circumstances surrounding these cases of
alleged discrimination. -
Dr. Edwin A Elliott, ' Regional Dn•ector'for the Sixteenth Region , participated in the
settlement on behalf of the Board and the case , No XVI-C-396, was thereafter designated
as clo,ed by the Regional Office. The notice posted by the respondent read as follows :
NOTICE TO ALL
HAWK AND BUCK COMPINY EMPLOYEES
1 The Hawk and Buck Company in its relationship with its employees will
not in any manner interfere with, restiain or coerce its employees in the exercise
of their rights to self-organization. -to form, join or assist labor organizations. to
bargain collectively through representatives of their own choosing and to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection. .
2 It also is the policy not, to Sdiscourage membership of its employees in the
United Garment Workers of America. Local 229, or any other labor organization
by discrimination in' regard to' hire or tenure of employment or any termor
condition of employment.
3 And fuithei, it is not the policy of The Hawk and Buck Company to interfere
in any manner with the formation or administration of any labor organization (as
defined by the National Labor Relations Act`) --of its embloyees or 'contribute
financial support theieto.• I • `
THE HAWK AND BUCK CO.
Matter of Shenandoah -Dives Mining Company and International Union of Mine, Mill c6
Smelter WorLcrs, Local No .?6, 11 N L R B 885 Also see Matter of Corn Products Refin-
ing Company and United Cannery, Agricultural, Packing h Allied Workers of America,
Local No 169, 22 N L R B 824, and the cases cited tiiciein
HANK & BUCK COMPANY,, INC. 843 ,
B. Discrimination in regard to, hire and tenure of employment
Bertha Shelnutt was first',em'ployed by the' respondent from' Au-
gust 7; 1930, until December 1, 1936, as a single-needle operator.8
She then, left the respondent to accept employment with another
company, where she worked as'a"floorlady for,the follo^ying 8 or 9
months. During the summer 'of 1937 a' position as temporary floor-
lady 'in the respondent's plant ,becal`ne vacant and Shelnutt ap^plied
for that work. She obtained the position when Forelady York urged
Cassidy to act favorably upon her application. In the fall of 1937
the teiporary production' line over which Shel nett , was lloorlady
was discontinued and Shelnutt was transferred to work on a'belt
loop machine by Cassidy, !'Who assured her that this work would
be of a permanent nature.
On April 28, 19'38, Shelnutt joined the Uiiion and, at all times
thereafter was an outstanding participant in its affairs. As already
noted, the day after she had joined the Union she was approached
by Superintendent Cassidy, who first inquired why she had done
so and then went on to indicate that 'it would be of little avail for
the respondent's employees to form a union. On August 7 or 8
Cassidy and Shelnutt were engaged in a conversation when Forelady
York approached and remarked to Shelnutt, "I think that bunch
of yours has done Mr. Cassidy the dirtiest of any bunch I ever saw.
Mrs. Shelnutt, you can readily see who belongs to your bunch. It
is just the common class that works in the factory." ° ' On or about
August 10, a day or so after the union bargaining committee, of
which Shelnutt was a member, had first met with Cassidy, Shelnutt
was transferred from her position as belt-loop operator, to work
on a single-needle machine. This transfer was clearly a demotion
to less desirable work. As loorlady and. belt-loop operator, Shel-
nutt had received wages based on a weekly rate. After her transfer,
however, she was paid a piece rate and her earnings were consider-
ably less than those she had received as a belt-loop operator.1° Sev-
8 Shelnutt testified that during this period , she made samples and was shifted around
over the house" to "fill in in general
° Shelnutt testified to the above conversation Cassidy at the hearing merely denied that
he had heard York say, "You can readily see who belongs to Mrs Shelnutt's bunch just the
common ones." York did not deny making the remarks attributed to her by Shelnutt, and
the Trial Examiner who had an opportunity to see and hear the witnesses at the hearing
credited Shelnutt ' s account of this conversation The denial of Cassidy is neither con-
vincing nor complete and in view of the Trial Examiner's finding and the respondent's con-
duct both prior to and after this incident, we find that the conversation took place as
Shelnutt testified
10 As a belt-loop operator , Shelnutt ' s weekly earnings had amounted to $12 , $ 2 less than
the amount she had received as a floorlady After her transfer Shelnutt received wages
averaging about $7 or $8 a week.
844 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
eral days after her demotion , on about August 14, Shelnutt was
engaged in a conversation with Forelady York when Cassidy ap-
proached and inquired if York had "seen those papers being passed
around the factory." Shelnutt pointed out that- the ' papers in qlt es-
tion probably were union authorization cards which were being
circulated during the recess period . Cassidy then remarked. "Yes,
that Selma Hamil down there thinks she can get $15 straight time
if you go Union , and Mrs. Godsey over there , the old wench, has
caused more trouble in this factory than any other person in regard
to this Union business ; some day she is going to find herself going
out the front door faster than she came in." As set forth above,
within the next day or so, Cassidy called a meeting of the employees
to inform them that he believed certain of them to be dissatisfied
with the Union and to offer the respondent 's aid in obtaining the
withdrawal of such employees from the Union.
In the meantime , as,already poted , the union bargaining committee,
including Shelnutt , had met with Cassidy on August 10 and 12. In
September 1938 Shelnutt became president of the Union. On De-
cember 1 , 2, and 3, a hearing was conducted by the Board in a repre-
sentation proceeding based on a petition filed by the Union, and
Shelnutt participated as a representative of the Union." About 1
month later, on January 3 , the last day of her employment , Shelnutt
had ,a conversation during working hours with one Gussie Eshenberg,
a visitor from outside the plant. On this occasion , Eshenberg on
entering the plant was accosted by Bessie Henderson , the respond-
ent's clerk whose duty it was to meet such visitors and ascertain their
business . Eshenberg asked Henderson for permission to speak with
Shelnutt, whereupon Henderson consulted York and informed Eshen-
berg- that she could not see Shelnutt until the recess period. Despite
this, Eshenberg then asked one Mary Graves , another employee, to
call Shelnutt , which Graves did. Eshenberg and Shelnutt then en-
gaged in a conversation, part of which took place in the ladies' rest
room. Henderson witnessed the entire transaction but did not re-
quest Eshenberg to leave the plant or inform Shelnutt that she was
not to speak with Eshenberg during working hours . Shelnutt did
not work on January 4 and 5. When she returned to the plant on
January 6 , Cassidy told her that she was discharged and when Shel-
nutt asked him "what about," he referred to the Eshenberg incident
as the basis for the discharge. _
It is alleged in the complaint that Shelnutt 's demotion on August
10, 1938, and discharge 'on January 6, 1939, were in violation of See-
nMatter of flack h Buck Company, Inc . and United Garment Workers of America,
12 N. L. R B 230.
HAWK & BUCK COMPANY, INC. 845
tion 8 (3) of the Act. In considering these allegations, we note at
the outset that Shelnutt was an outstanding figure in the Union
throughout the period of time with which we are here concerned.
-Shortly after joining the Union she had been singled out by Cassidy
in effect to be advised against further union activity. Her demotion
in August took place several days after she had participated in the
first meeting between the union bargaining committee and Cassidy,
and was followed closely by Cassidy's last speech to the employees
designed to discourage union activity. In the absence of persuasive
evidence to the contrary it thus would be a fair inference that Shel-
nutt's demotion was primarily the result of her outstanding union
activity.
The respondent contends, however, that Shelnutt's demotion re-
sulted from her inability to "get along with" the other employees,
from her "bossiness," and from the fact that she spent a great deal
of time away from her machine talking to other employees. In sup-
port of the respondent's contentions, there is evidence that about 2
days before her «demotion, Shelnutt engaged 'in - a heated discussion
of the Union with a non-union employee, Alma Salters. During the
argument Salters threatened to "stomp hell out of" Shelnutt. There-
after both employees went to Cassidy and submitted their respective
versions of the quarrel to him. At this time Salters told Cassidy
that Shehnitt had threatened that when the Union came into the
plant, Cassidy "would tuck his tail and get out like the rest of us
that didn't have sense enough to join [the Union]." Shelnutt, pro-
testing that this was a falsehood, called Salters a liar. Salters then
slapped Shelnutt in the .face. It further appears that on the same
day another non-union employee, Ruth McCorkle, complained to
Shelnutt concerning ;the -unequal distribution ' of -work in • the plant.
Shelnutt then advised McCorkle that one of the purposes of the
Union was to remedy situations of this sort. Within a few minutes
Cassidy rebuked Shelnutt for discussing the Union in the plant and
stated that McCorkle had reported Shelnutt for talking about the
Union.
In view of all the evidence, we find that Shelnutt's alleged "bossi-
ness," inability to "get along with" the other employees, and leav-
ing of her machine during working hours were not substantial causes
of her demotion on August 10. It does not appear that prior to her
demotion Shelnutt was ever warned against leaving her machine.
Other, employees; moreover, -left their machines -to engage in conver-
sation during working hours without being reprimanded or dis-
ciplined by the respondent. With respect to the Salters incident, it
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is clear that at the least Shelnutt and Salters were equally to blame.
It does not appear, however, that Salters was in any way disciplined
for her part in the affair. As to the McCorkle incident, there is no
indication in the record of any basis for controversy between Shelnutt
and McCorkle unless it is to be inferred that `McCorkle took umbrage
at the mere suggestion that a union would provide appropriate
machinery for presenting grievances to the management. Far from
indicating that any dispute existed between McCorkle and Shelnutt,
this incident serves best to show that the respondent regarded Shel-
nutt's advocacy of the Union as a factor rendering her unable to
"get along -with" the other employees. We do not believe that Shel-
nutt's alleged conduct described above was, in any event, of such
character as would in the ordinary conduct of the respondent's
business, warrant her demotion to a less desirable position without
previous warning, especially since she had been regarded as a valuable
and trusted employee prior to her engaging in union activity. We
find, therefore, that the respondent's alleged reasons for demoting
Shelnutt were not its true reasons and that the demotion was cal-
culated by the respondent to discourage Shelnutt from continuing her
union activity.
With respect to Shelnutt's ultimate discharge it is noteworthy that
,although 'her conversation with Eshenberg was observed by -Hend-
-erson, she was not told io discontinue it, nor was any effort made by
.Henderson to have Eshenberg leave the plant. Graves; who had, also
spoken to Eshenberg without permission and who apparently saw
nothing extraordinary or to be concealed in so doing, was neither
reported by Henderson nor reprimanded by the respondent. It is
apparent that this incident standing alone afforded no reasonable
basis for the summary discharge of an old and valuable employee.
This fact, indeed, is recognized by Cassidy, who explained the dis-
charge on the ground that after her transfer in August Shelnutt
continued to leave her machine during working hours and that his
patience was finally exhausted by the Eshenberg incident. Other
than Cassidy's claim that she continued to leave her machine during
working hours, the record contains no evidence of any infractions of
the respondent's rules by Shelnutt during the period between her
discriminatory demotion on August 10 and her discharge on January
6. As already noted, it does not appear that other employees who left
their machines during working hours were in any manner disciplined.
Under these circumstances it ^is a fair inference that Cassidy's pa-
tience was exhaused by Shelnutt's continued union activity rather
'than her alleged violations of the respondent's rules.
We find that the respondent transferred Shelnutt on August 10,
1938, and thereafter discharged her on January 6, 1939, for the reason
HAWK & BUCK COMPA\TY, INC. 847 ,
that she joined and assisted the Union, thereby discouraging inember-
ship in the Union and interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of
the Act. In view of the fact that we have found that the discrimina-
tion against Shelnutt commenced some time prior to her participation
in the representation proceeding, and there being no direct evidence
that such participation provided an additional basis for the discrimi-
nation against her on January'6, 1939, we do not find that by such
discrimination the respondent engaged in a violation of Section 8 (4)
of the Act. Accordingly, we will dismiss the complaint in this
respect.
Lulu Godsey was employed by the respondent from 1933 until her
discharge on December 9, 1938. Like Shelnutt, Godsey was promi-
nent in union affairs. She joined the Union on March 15, 1938, became
'its first president on' April 25, 1938, and was, spokeswoman for its
bargaining committee. One week before her discharge she testified at
the hearing in the representation case.
In June 1938 Cassidy approached Godsey during working hours
to inquire why she "was running around over the overall factory
stating . . . ' [she] was going to be the floorlady." When Godsey
replied that she had never done that, Cassidy said, "A's long as I am
superintendent here, you will not be a floorlady." ' Godsey's'rejoinder
was that as long as he was superintendent, she did not want to •be
floorlady, whereupon Cassidy told her to "get it into your head that
this plant is not going union.". On August 8, 1938, at the'end of the
first bargaining' conference with Cassidy, Godsey, as spokeswoman
for the committee, told Cassidy that the committee would see him
again in "a couple- of days." Cassidy replied that Godsey might not
be there in "a couple of days." This statement was clearly intended
as a warning to Godsey that if her union activity persisted she
would be discharged. As set forth above, on or about August 14,
1938, Cassidy told Shelnutt that Godsey caused more trouble than
anyone and would find herself "going out of the plant quicker than
she came in." On August 29, 1938, Godsey was laid off but, as already
noted, was reinstated pursuant to the above-mentioned settlement
agreement.
On August 24 and October 24, 1938, two notices were posted in the
plant by the respondent. The first stated that those employees who
failed to make the nniinimum earnings required under the Fair Labor
Standards Act 12 would be discharged when that Act became effective
on October 24, 1938. ' The second notice listed Godsey and eight other
employees and, recited that they had not earned the necessary mini-
mum and that, unless advised to the contrary, the respondent would
12 52 Stat. 1060.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apply for handicap classifications for them. On October 26 Cassidy
applied to the Wage and Hour Division for handicap classifications
for six of the employees listed on the notice. It is Cassidy's claim
that Godsey was one of three employees who requested that no such
application be made for them. Godsey testified that because of ill-
ness she was absent, from the plant on the day the application blanks
were distributed by one Judson. She further testified that on the
following day she returned to work' and asked Cassidy to place her
name on the handicap list but that he refused to do so and told her
that he had no more application blanks and that he had "all of the
girls" he could "handle . . . just now on the handicap list." The
respondent did not call upon Judson to testify at the hearing and
-made no effort to show that Godsey was in the factory when the
blanks were distributed. The Trial Examiner, who had an oppor-
tunity to observe the witnesses, rejected Cassidy's explanation and
credited Godsey's testimony. We find, in accordance with Godsey's
testimony and the Trial Examiner's finding, that the respondent did
ailot afford God'sey an opportunity to be classified as a handicapped
employee.
On December 9, 1938, Godsey was discharged, allegedly because
she had failed to make the minimum required under the Fair Labor
Standards Act. The employees for whom Cassidy had applied for
handicap status. were retained and continued in the respondent's
employ for several months thereafter.
In view of the foregoing, we do not credit the respondent's claim
that Godsey was discharged because of her inability to earn the
minimum wage established under the Fair Labor Standards Act or
her unwillingness to be classified • as a handicapped employee.
Rather, we-are convinced and find that Godsey was discharged by
the respondent on December 9, 1938, because of her union member-
ship and activity. By said discharge, the respondent interfered with,
restrained, and coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
Roxie Moser,, one of the respondent's oldest employees, was em-
ployed by the respondent and its predecessor from 1923 until her
discharge on December 9, 1938. On April 28, 1938, Moser joined the
Union and thereafter solicited members in the factory during recess
periods. Moser testified at, and attended most of, the hearing in
the representation case in December 1938.
Moser's empioyment was reasonably steady, except during 1937.
Early in that year, she left the respondent's plant on a 7 months'
leave of absence. When, in October, she returned to work, she was _
assigned to a felling machine rather than to the shirt unit, in which
she had formerly worked. During the Christmas season of 1937,
HAWK & BUCK COMPANY, INC. 849
Moser left the respondent 13 and obtained employment with another
company in Waco. About 4 weeks later, she received, while at work,
a telephone call from Forelady York who asked her whether she
wanted to return to work in the respondent's plant. Moser inquired,
"What doing?" York replied that she could have her "old place
back on the shirt unit" and assured her that the work would be of
a permanent nature. On the following day, Moser returned to work
for the respondent and was employed in the shirt unit with one
Emily Holmes.. Moser and Holmes performed separate functions in
the unit, the latter banding sleeves while Moser hemmed pockets.
In June 1938 Holmes was assigned to supervise a temporary unit
and Nettie Carlan, a new employee, operated the sleeve bander in
place of Holmes. When, about September 29, 1938, Holmes returned
to the unit, her temporary work completed, Carlan was retained in
the unit while Moser was transferred to less desirable work outside
the unit.14 Neither Carlan nor Holmes were union members. Prior
to September 29, 1938, there had been no complaint against Moser's
work. On at least one occasion, early in 1938, her work had been
the.. subject of favorable comment by Cassidy. The respondent
claimed at the hearing that Carlan was' preferred to Moser because
she was a younger and faster operator. Holmes testified, in support
of this claim, that from personal observation she knew ' Carlan to
be a faster operator than Moser. York testified to like effect. On
the other hand, there is testimony by Moser that Carlan was very
slow in her, work, that York had admitted this on one occasion during
the summer of 1938, and that Carlan required 'constant assistance
from Moser and another employee, who was especially assigned to
help Carlan maintain the unit's proper pace. Moser also testified
that shortly after she had been transferred, Holmes complained to
her of Carlan's work and that Carlan, herself,' confided to Moser that
Holmes had criticized her work in front of York. Holmes and York
both denied that Holmes shad complained to the latter about Carlan's
work, but Holmes did not -deny that'she had deprecated the quality
of Carlan's work to Moser. There`is uncontradicted evidence that
upon at least one occasion' during the summer of 1938, Moser com-
plained to Cassidy of Carlan's. incompetence, and Cassidy replied
that Moser should just continue along and added that "I think I
18Apparently Moser was laid off at that time because of slack work.
13 In the respondent 's plant , a transfer from-unit to non -unit work amounts to a demo-
tion. Employees who are not employees in units are apparently confronted with less
desirable, working- conditions and, according to Cassidy, "expect eventually to be trans-
ferred " to units
After her transfer , Moser 's earnings and working hours were materially reduced Her
average weekly earnings amounted to $5, as compared with $11 while she was in the unit
Her work-week, which averaged, so far as the record shows, 371/2 hours in the unit, was
reduced to 23 bouts after her transfer. ,,, ,
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
can'depend on you to tell me just how it comes out." In=considering
the weight to be given Holmes' and York's testimony, we are mind-
ful that the issue before us is not whether Carlan with a year's
additional experience was, at the time of the hearing, a faster oper-
ator than Moser. The sole issue which' concerns us 'is whether, at
the time of the alleged discrimination, against Moser, Carlan was
then a faster and.better employee than Moser or gave strong promise
of soon: being faster and better. It does not appear how Holmes,
at the time of Moser's transfer, could have, had any accurate per-_
sonal knowledge of Carlan's capacity as a worker. The testimony
of York, moreover, must be weighed in the light of her clear hostility
toward the Union. Under .all of the circumstances, Ave find that' at
the time of her transfer, Moser was a considerably better worker than
Carlan. We are, convinced that, the true explanation for Moser's
transfer may be found in her union membership and activity. We
find that the respondent transferred Moser to less favorable work on
September 29, 1933, for the reason that she joined and assisted the
Union, thereby discouraging membership in the Union, and inter-
fering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
After her transfer, Moser operated a play-suit bander., She had
never,, during her 15 years' prior employment' in the plant, been
called upon to do that type of work, and it does not appear that ex-
perience in one, part of the plant would enable an employee .to learn
to operate -a play-suit bander within a Jew weeks. • Nevertheless,
Moser was listed on the October 24 notice, as being subject to dis-
charge.for inability,to earn the minimum rate' of, 25,cents per hour
required under the=Fair Labor Standards Act. Prior to'her dis-
criminatory transfer, while, she was in the unit, Moser's earnings had
averaged approximately 28.3 cents an hour. During the 31/7-week
interval between her„ transfer and the posting of the October, 24
notice, her average,hourly earnings had amounted to about 19.6 cents.
Over the following, month and a half, she was, able to raise her
average earnings to 22 ;cents. According to Moser, the bander on
which she worked continually skipped stitches, thereby•making it nec-
essary for; her, to consume working time in going over her work and
making the necessary, repairs. Avis Fritsch, a•,non-union_ employee
called by the respondent as a witness at the hearing, testified that
the bander assigned to Moser worked properly only wheii operated at
a low speed. We, conclude, in accordance with the finding of the
Trial Examiner, that' the bander upon which Moser was required to
learn a new type of work, was defective.- • On December 9, Moser
0^ •
Fritsch testified' that another ' employee 'and she had been able to earn the iequired
late on the same bander operated by Moser There is no showing , however , that these or
any other operators had ea,ned the necessary minimum on that bander within 2 months
HAWK & BUCK COMPANY, INC. 851•
was discharged, allegedly because of the loss caused the respondent
by her failure to make the required minimum.
Entirely inconsistent with his treatment "of Moser is Cassidy's
consideration for Lou Moore, another employee, who, at the time of
Moser's discharge, had caused the respondent far greater loss than had
Moser and continued to do so for 9 months thereafter.1' Moore did
not appear on the October 24 list and was retained until September 6,
1939, on the ground that she was a new employee and had complained
that conditions "in the back" where she worked were difficult. How-
ever, Moser also worked "in the back" after the initial discrimination
against her and conditions there must have been equally difficult for
her. Further, she had been employed for less than 3 months on new
and unfamiliar work before her discharge, whereas Moore had been
employed by the respondent and afforded an opportunity to improve
her work for over a year. Moreover, Cassidy employed 'or reemployed
eight employees in the spring of 1939 and retained them from 31/2
to 6 months -while each of them was causing greater loss to the re-
spondent than, had Moser during the 10-week period that she had
worked on the bander ' prior to her discharge on December 9. In
considering the evidence as to Moser's ultimate discharge, moreover,
we are mindful of the fact that, had Moser not been discriminatorily
transferred from the unit -in' which she properly belonged, there
would have been no question raised as to her ability to earn the re-
quired minimum rate and she would not have been listed on the,
October 24 notice.
Upon' all the evidence, we find that Moser was discharged by the,
respondent on December 9, 1938, because of her union membership
and activity. By said discharge, the respondent discouraged mem-
bership in the Union and interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act. '
C. Conclusions as to interference, restraint, and coercion;
In view of the foregoing,' it is apparent that' the respondent, after
September 19, 1938, interfered with, restrained,,and coerced its em-
ployees in the exercise of their rights under the Act by transferring
Roxie Moser on or about September' 29, 1938, 'by discharging Roxie
Moser and Lula' Godsey on December 9, 1938, and by discharging
after they had first - been assigned to it or that'a'considerable part of their 1'oiking time
had been devoted to operating the bander , while they were earning the minimum , Fritsch's
testimony is not, therefore , inconsistent with our conclusion that the bander was defec-
tive, for 'even on a defective machine, it ' might be possible for employees to earn the
required minimum during short isolated periods, of to do so mole consistently , after. they
had gained experience in operating the machine and allowing for its defects
"At the time of her discharge, the loss Moser had caused the respondent amounted to
approximately $4.36. During the sanie period Moore 's failure to make the inmuuum had
resulted in a loss of $20 58 to the respondent
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bertha Shelnutt on January 6, 1939. Thus the respondent has not
lived up to the settlement agreement which it.now seeks to invoke as a
bar to the Board's consideration of the events prior to September 19,
1938.
We therefore find that by Cassidy's conversations with Shelnutt
on or about April 29, August 14, and December 3, 1938, by his
three speeches to the employees during July and August, by his
comments to Godsey in June and on August 8, by York's comments
to Shelnutt on August 7 or 8, and by the discriminatory transfers
and discharges, considered above, the respondent interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III, occurring in connection with the operations of the respondent
set forth 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 com-
merce and the free flow of commere.
V. THE REMEDY
It is essential in order to effectuate the policies of the Act that the'
respondent be ordered to cease and desist from certain activities
and practices in which we have found it to have engaged' and, in
aid of such order and as a means for removing and avoiding the
consequences of such activities and practices, that it be directed to
take certain affirmative action more particularly described below.
We have found that the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
them in Section 7 of the Act. We shall, order the. respondent to
cease and desist from such interference, restraint; and coercion.
We have found that the respondent has discriminated in regard
to the hire and tenure of employment of Lula Godsey. The respond-
ent, nevertheless, contends that because of Godsey's failure to earn
the minimum rate required under the Fair Labor Standards Act,
the Board cannot properly direct her reinstatement. As already
noted, however, the respondent refused to apply for handicap classi-
fications for Godsey. Those employees for whom the respondent did
apply. were .retaine& as -handicapped employees until April 3, 1939,11
4 months after Godsey's discharge. Thereafter, Mamie Harbour,
one of the group retained under this arrangement, was 'continued ,
17 On April 2, 1939, the respondent had been notified by the wage and Hour Division that
those for whom application had been made could not be classified as handicapped employees.
HAWK & BUCK COMPANY, INC. 853,
as an employee-because she had managed to raise her earnings above
the required -rate. It is not unlikely that Godsey also would- have
found it possible to increase her earnings to the' necessary level, had
she, like-the',other employees, been-afforded the 4-month additional
period in which to do so. In any event, she-is entitled now-to the
sane treatment which- she would have received had there been no
discrimination against her. We, therefore, shall direct the respond-'
cut to employ Godsey for a minimum period of 4' months during
which she shall be kept reasonably supplied with working material's
and given a fair opportunity to earn the necessary rate. During
this trial period, Godsey shall be compensated at the minimum rate
established under the Fair Labor Standards Act, unless her earning,
exceed such minimum, in which event she shall be dompensated on
the basis of her actual earnings. If Godsey's average -weekly earn-
ings during the last 3 weeks of the trial period are equal to; or
exceed, the minimum earnings required under the Fair Labor Stand-
ards Act, 'she shall be continued by the respondent as a regular
employee without prejudice to her seniority and other rights and
privileges. -In addition to the foregoing, Godsey shall be made whole
for any loss of pay she may have suffered by reason of the aforesaid
discrimination, by payment to her-of a sum of money equal to that
which she normally would have earned as wages from December 9,
1938, to the date of the respondent's offer of reinstatement,", less net.
earnings during such,period.19 . `
We have also found that the respondent not only discriminated
in regard to the hire and tenure of employment of Bertha Shelnutt
and Roxie. Moser, but also discriminated in regard to the terms and
conditions of their employment, by'transferring them to less desirable
work on August 10 and September 9, 1938, respectively. We shall,
therefore, order the respondent to offer to Shelniltt and Moser im-
mediate reinstatement to the respective position each occupied im-
mediately prior to her discriminatory transfer, or to a substantially
equivalent position, without prejudice to her seniority and other
a
is In view of the fact that the respondent, by its illegal discrimination against Godsey,
precluded any possibility that she would raise her eainmgs to the minimum required under
the Fair Labor Standards Act by April 3, 1939, we will not indulge in speculation as to
this possibility, but will order that she be given back pay for the entire period from the
discrimination against her until compliance with our order.
19 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent. tthich would'not h.ne been inemied but for the discriail-
nation against him and the consequent necessity of his seeking employment elsewhere See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of Aniei ice, Lumber and Sawmill Wom ers Union, Local 2;70, 8 N L R. B 440 Monies -
received for work performed upon Fedeial, State, county, municipal, or other work-relies
projects are not considered as earnings, but as provided below in-the Order, shall 'he-
deducted from the sum due the employee, and the amount thereof shall be paid over to the,
appropriate fiscal agency of the Federal, State,, county, municipal or other government or
governments which supplied the funds for said work-relief projects.
253030-42-vol. 25 55 ' '
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights and privileges.20 We shall also order the respondent to make
Shelnutt and Moser whole for any loss of pay they may have suffered
by reason of the aforesaid discrimination, by payment to each of
them of a sum of money equal to that which she normally would have
earned as wages from the date of said discrimination to the date of
the respondent's offer of reinstatement, less net earnings 21 during
such period.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Garment Workers of America, Local No. 229, is al labor
organization, within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Lula Godsey, Bertha Shelnutt, and Roxic Moser, and as to
the terms and conditions of employment of Bertha Shelnutt and
Roxie Moser, thereby discouraging membership in United Garment
Workers of America, Local No. 229, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. By discharging Bertha Shelnutt on January 6, 1939, the respond-
ent did not engage in an unfair labor practice within the meaning
of Section 8 (4) of the 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 Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent Hawk & Buck Company, Inc., Waco, Texas, and its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Garment Workers of
America, Local No. 229, or any other labor organization of its em-
20 The respondent did not contend that Moser failed to earn the required minimum rate
under the Fair Labor Standards Act during any period other than that following her dis-
criminatory transfer . Since we are directing that Moser be reinstated to the position she
occupied prior to that transfer, it is unnecessary to reinstate her for a trial period as in the
case of Godsey.
21 See note 19.
HAWK & BUCK COMPANY, INC. 855
ployees, by discharging , transferring , laying off , or refusing to rein-
state any of its employees , or in any other manner discriminating in
regard to their hire or tenure of employment or any term or condition
of employment;
(b) In any other manner interfering with, restraining , or coercing
its employees in the exercise of their right to self-organization, to
form, join; or assist labor organizations , to bargain collectively
through' representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or
other mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Bertha Shelnutt and Roxie Moser immediate and full
reinstatement to the positions occupied by them immediately prior to
l heir transfers on August 10, 1938, and September 29, 1938, respec-
tively, or to substantially equivalent positions, and offer to Lula
Godsey immediate and full reinstatement to her former, or a sub-
stantially equivalent position and continue to employ Lula Godsey
for a minimum period of 4 months under working conditions that
would afford her a fair and reasonable opportunity to earn the mini-
mum wage required under the Fair Labor Standards Act, all without
prejudice to the seniority and other rights and privileges of the afore-
said three employees, and in accordance with the principles laid
clown in 'the section above entitled "The Remedy";
(b) Continue Lula Godsey as a regular employee after termina-
tion of the aforesaid 4-month period, without prejudice to her
seniority or other rights and privileges, in the event that her average
weekly earnings during the last 3 weeks of such 4 months' period
are at least equal to the minimum wage required under the Fair
Labor Standards Act;
(c) Make whole Bertha Slielnutt and Roxie Moser, and Lula
Godsey, for any loss of pay they may have suffered by reason of
the respondent's discriminatory acts, by paying to each of them a
suns of money equal to that which she would normally have earned
as wages from August 10, 1938, September 29, 1938, and December 9,
1938, respectively, until the date of offer of reinstatement, less the
respective net earnings of each of the aforesaid employees during
said periods; deducting, however, from the amount otherwise due
each of these employees, monies received by her during said period
for work performed upon Federal, State, county, municipal, or other
work-relief projects and paying over the amount so deducted to the
appropriate fiscal agency of the Federal, State, county, municipal,
or other government or governments which supplied the funds for
such work-relief projects;
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- (d) Immediately post, and `keep posted for a period, of at least-
sixty (60) consecutive days from the date of posting, in conspicuous-
places throughout its plant at Waco, Texas, notices to its employees,
stating that it will cease and desist in the manner set forth in para-
graphs 1 (a) and (b) and that it will take the affirmative action set
forth in paragraphs 2 (a), (b), and (c) of this Order; that the
respondent's employees are free to become or remain members of the
United Garment Workers of America, Local No. 229; and- that tha
respondent will not discriminate against any employee because of
membership or activity in that organization;
(e) Notify the Regional Director for the Sixteenth Region in
writing within ten (10) days from the date of this Order what steps-
the respondent has taken to comply therewith.
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.