Hortex Mfg. Co.

National Labor Relations Board - Board Decisions

Aug 13, 1945

63 N.L.R.B. 302 (N.L.R.B. 1945)

In the Matter of Louis HORWITZ, ALBERT HORWITZ AND HENRY HoR-
WITZ, CO-PARTNERS DOING BUSINESS AS HORTEx MFG. COMPANY and
AMALGAMATED CLOTHING WORKERS OF AMERICA
Case No. 16-C-1136.-Decided August 13, 1945
Mr. Lewis Moore, for the Board.
Fryer and Milstead, by Mr. Coyne Milstead, of El Paso, Tex., for the
respondents. -
Mr. E. B. Elfers, of El Paso, Tex., for the Association.
Mr. Ben Grodslcy, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on October 14, 1944, by Amalgamated
Clothing Workers of America, affiliated with the Congress of Indus-
trial Organizations, herein called the Amalgamated, the National
Labor Relations Board, herein called the Board, by the Regional Di-
rector for the Sixteenth Region (Fort Worth, Texas), issued its com-
plaint, dated January 12, 1945, against Louis Horwitz, Albert Horwitz
and Henry Horwitz, co-partners doing business as Hortex Mfg. Com-
pany, El Paso, Texas, herein called the respondents, alleging that the
respondents had engaged in and were engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1) and (2)
and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. Copies of the complaint, accompanied by
notice of hearing thereon, were duly served upon the respondents and
the Amalgamated.
With respect to the unfair labor practices, the complaint alleged
in substance : (1) that from about June 1, 1944, the respondents have
assisted, dominated, contributed support to, and interfered with the
administration of, -Employees Benefit Association of Hortex Mfg.
Company,,- herein called the Association; (2) that during the same
period, the respondents urged and persuaded their employees to join
1 Erroneously referred to in the complaint as "Employees Benefit Association."
63 N. L. R. B., No. 44.
302
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a general partnership, having their principal office and place of
business in El Paso, Texas. The respondents normally manufacture,
sell, and distribute boys' sportswear, but for the past 2 years, approxi-
mately one-third or one-half of the respondents' entire operation has
been devoted to the manufacture of combat trousers for the armed
forces of the United States. The principal raw materials used are
cotton cloth, cotton thread, and buttons. During the 6 months pre-
ceding the month of October 1944, the respondents purchased raw
material valued at about $200,000, approximately all of which was
obtained from points outside of Texas. During the same period, the
respondents sold and distributed finished goods valued at about
$400,000, of which approximately 80 percent was shipped to points
outside of Texas.
The respondents concede, for the purposes of this proceeding, that
they are engaged in commerce, within the meaning of the National
Labor Relations Act .3
II. THE ORGANIZATIONS INVOLVED
Amalgamated Clothing Workers of America is a labor organization
affiliated with the Congress of Industrial Organizations. Employees
Benefit Association of Hortex Mfg. Company is an unaffiliated labor
organization, duly incorporated under the laws of the State of Texas.
Both of these organizations admit to membership employees of the
respondents.
III. THE UNFAIR LABOR PRACTICES
Interference , restraint , and coercion; formation of the Association
1. Introduction
There is no record of union activity in the respondents' plant prior
to 1942, when a few A. F. of L. circulars were distributed at the plant,
without any further attempt to interest the employees in any particular
local. In 1943, a few Amalgamated circulars were also distributed
at the plant, but not until March 1944 did the Amalgamated make any
real effort to organize the plant. At that time, Ceferino Anchondo, a
local Amalgamated organizer, distributed circulars and authorization
cards on several occasions to the respondents' employees as they en-
tered or left the plant. As a result of this activity and visits to the
homes of some employees, he secured about 60 members out of ap-
proximately 400 employees in the plant. On about June 15, Anchondo
left El Paso for employment elsewhere and the campaign was con-
tinued by Organizer Efren Acosta, who obtained approximately 60
additional members. As indicated below, the Ama°lgamated's further
8 The foregoing facts were stipulated by the parties.
HORTEX MFG. COMPANY 303
and assist the Association; and (3) that by the aforesaid acts, the re-
spondents have interfered with, restrained, and coerced their employees
in the exercise of the rights guaranteed in Section 7 of the Act.
On January 18, 1945, the respondents filed their answer, admitting
certain allegations of the complaint in respect to the character of their
business, but denying the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at El Paso, Texas, on January
25, 26, and 29, 1945, before W. P. Webb, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board, the respondents,
and the Association were represented by counsel and participated in
the hearing. Full opportunity'to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was
afforded all parties. At the beginning of the hearing, counsel for the
Association submitted a written motion to intervene, which was granted
by the Trial Examiner without objection. Pursuant to a timely and
meritorious application by the respondents, the Trial Examiner, by
order dated February 3, 1945, authorized the taking of the deposition
of Louis Horwitz and made the deposition so taken a part of the
record herein. During the course of the hearing the Trial Examiner
made rulings on other motions and on objections to the admission of
evidence. The Board has reviewed all the rulings of the Trial Ex-
aminer and finds no prejudicial error. The rulings are hereby affirlned.
On March 27, 1945, the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served upon all the parties, in which
he found that the respondents had engaged in and were engaging in
unfair labor practices affecting commerce, within the meaning of Sec-
tion 8 (1) 'and (2) and Section 2 (6) and (7) of the Act. He recom-
mended that the respondents cease and desist therefrom and take cer-
tain affirmative action.
Thereafter, the respondents duly filed exceptions to the Intermediate
Report and a supporting brief. No request for oral argument before
the Board at Washington, D. C., was made by any of the parties, and
none was had.
'The Board has considered the Intermediate Report, the respondents'
exceptions and brief, and the entire record in the case, and, insofar
as the exceptions are inconsistent with the findings, conclusions, and
order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The respondents, Louis Horwitz, Albert Horwitz, and Henry Hor-
witz, co-partners,z *doing business as Hortex Mfg. Company, operate
8 Albert and Henry Horwitz, sons of Louis Horwitz, are not active in the business. Both
are in the armed forces.
HORTEX MFG. COMPANY 305
efforts to organize these employees were impaired by the advent of
the Association. -
2. The formation and domination of the Association 4
In the latter part of May or the first part of June 1944, employee
Samuel Diaz, a gang leader in the packing and shipping department'
which was located in the basement of the plant, undertook to get the
employees interested in what he termed, "a kind of Company union"
for the purpose of consolidating the social activities of the employees.
He discussed this plan with Francisca de la Pena, a supervisor on
the civilian "line" : s Transito Alarcon, a pay-roll and personnel clerk;
Adalberto Santaella , a cutter; Mauro Cortez, a shipping clerk for
Government goods; and two machine operators, Aurora Barraza and
Asuncion Amera. The idea was favorably received by these employees,
and they formed themselves into a self-appointed committee of seven
to develop the organization. The committee decided to enlarge the
scope of the proposed organization as originally outlined by Diaz,
and each member of the committee was requested to submit suggestions.
The committee held its meetings in the shipping room of the plant
or in another part of the plant basement. It was decided that the
main purposes of the organization would be to arrange social func-
tions; operate a savings and loan fund; arrange sick benefits; negotiate
with the respondents for higher wages, and handle employee griev-
ances with the respondents. Diaz told Floorlady Argentina Chavez 7
about the aims and purposes of the organization; however, she did not
become a member of the committee, and attended only one of the
committee meetings.
Diaz had two or three conversations with Louis Horwitz, senior
partner of the respondents, in respect to the formation of the organ-
ization. Horwitz usually visited the shipping department several
times a day. On one of these occasions, Diaz told him about the
scheme to form an organization in the plant, its aims and objects, and
4 The findings of fact under this caption are based upon unrefuted evidence of witnesses
for the Board , the respondents , and the Association.
5 At that time , there were four other employees in the packing and shipping department
As Diaz had worked in that department much longer than the others, he was a gang
leader. He had no authority to hire or discharge or effectively recommend any change in
the employment status of any employee . Like the Trial Examiner , we find that he was
not a supervisory employee.
9 De la Pena was first a seamstress in the plant at $18 a week In June 1944 , she was
promoted to supervisor at $35 a week straight salary . She inspects and reports on the
work of the employees in that department The 24 employees working under her were paid
on an hourly basis. De la Pena is under the direct supervision of Harry Agee, superiii-
tendent of the civilian "line." That part of the plant engaged in the manufacture of
civilian goods is called the civilian "line" and the other, the Government "line " We
find that de la Pena was a supervisory employee, that in the minds of the employees she
was reasonably identified with management , and that the respondents are responsible for
her activities in matters pertaining to labor relations.
' The respondents admitted that Argentina Chavez was a supervisory employee.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gave him the names of those on the committee. Horwitz said that it
was "up to" Diaz, and he could not tell him what or what not to do.
Later, Diaz received Horwitz's permission to talk to the other em-
ployees in regard to the organization, and to hold meetings in the
shipping room. Diaz asked Horwitz about the legality of such an
organization, and Horwitz advised him to see a lawyer. Horwitz
recommended Harold Potash, the respondents' own attorney. Potash
declined to represent them because he was the respondents' attorney,
but recommended Attorney E\ B. Elfers. Diaz told Horwitz that
Potash would not handle the matter and that they wanted to see
Elfers. Horwitz gave them permission to leave their work for this
purpose. They called on Elfers and he agreed to represent them.
The committee then returned to the plant and worked until quitting
time. They were away from work about 40 minutes. No deduction
was made from their wages for the time lost from work. They were
employed on an hourly basis.
Prior to consulting the attorneys, the committee had drawn up a
written prospectus concerning the proposed organization,s stating
that one of its several purposes was "To represent the employees in
dealing with the employer on such matters as vacations, recreation,
wages and salaries to the employees, obtaining proper bonuses for over
production and the selection of proper foremen and chairladies." The
document was typed by Alarcon in the respondents' office and on the
respondents' paper, at no expense to the committee. A copy of the
prospectus was given to Elfers.
Thereafter, with the knowledge and consent of the respondents, the
committee began to hold daily membership meetings in the basement
of the plant. About 6 such meetings were held, and they were so
arranged that the employees on both the day and night shifts could
attend in groups. The meetings usually lasted from 30 to 45 minutes,
and no deductions were made from the pay of any employees for the
time lost in attending these meetings.o The prospectus, which was in
both English and Spanish, was read and discussed at these meetings.lo
Supervisor Francisca de la Pena attended 1 of these meetings with the
employees on her "line." During the intervals between the meetings,
and after the last meeting had been held, the prospectus was kept by
Alarcon in the office. On various occasions, the employees were so-
licited in the plant during working hours to sign the prospectus, and
some signed it in the office. About 342 employees signed the prospectus,
8In the prospectus, Supervisor de la Pena was proposed as one of the organization's first
officers.
9 The record shows that some of the employees lost about one-half hour each from work
on account of attending these meetings . They were all paid on an hourly basis.
10 According to Alarcon, at one of the meetings, an employee asked her if she could
belong to both the C. I. O. and the Association at the same time, and she told her that it
was best for the employees just to belong to the Association. Diaz and Santaella testified
that they told some of the employees that they could join both organizations if they so
desired.
HORTEX MFG. COMPANY 307
as indicative of their willingness "to join the Association [and] to
participate therein," including the following supervisory employees :
Harry L. Agee, superintendent of the civilian "line"; Louis Carini,
superintendent of the Government "line"; Ralph Caskey, office man-
ager; and Argentina Chavez, floorlady.11 None of these supervisory
employees actually became a member of the Association, and none
attended the meetings of the Association except Argentina Chavez, as
related above.
In August the committee decided to elect temporary officers for the
Association. About 500 ballots containing the names of the 7 members
of the committee were prepared and distributed to the employees by
Alarcon. The respondents' paper and mimeograph machine were used
in the preparation of the ballots without expense to the committee.
The employees were not given an opportunity to select their own can-
didates, but were required to vote for members of the committee only.
After the employees had marked their ballots, they were turned in to
Alarcon at the plant office, where they were counted and tabulated in
the office by Diaz, Alarcon, and Mrs. Blaugrund, a typist, in the pres-
ence of Caskey, the office manager. Diaz was elected president of the
Association; Santaella, vice president; Cortez, secretary; and Alarcon,
treasurer. The election was held in the plant with the knowledge and
consent of the respondents.
Pursuant to a decision to incorporate the Association, the articles
of incorporation 12 and application for a charter which had been pre-
pared by Attorney Elfers, were signed on August 1, by Santaella,
Supervisor de la Pena, and Alarcon, and submitted to the Secretary
of State for approval and issuance of a charter. After a public hear-
ing in El Paso on October 18, which was compulsory under Texas law,
the application was approved on October 23, by the Secretary of State,
and the charter was granted. Employees Diaz, Alarcon, Santaella,
and Cortez attended the public hearing on October 18, with the knowl-
edge and consent of Horwitz. The hearing was held during work-
ing hours and each of these employees lost about 45 minutes from work.
No deduction was made from their pay for this loss of time.
On or about November 15, the Association held a meeting of the
employees at the Rainbow Club 13 Notices of this meeting were pased
out at the plant by Alarcon, Diaz, Santaella, and Cortez. Attorney
Elfers attended the meeting and read and explained the charter. Ac-
cording to Diaz and Cortez, it was considered advisable to have an
up-to-date roster of the Association's membership, as in October the
respondents had reduced the number-of their employees by 140 to 150
11 The respondents admitted that these four employees were supervisory employees. The
names of Agee, Carini, and Chavez were subsequently crossed off the prospectus
'a As set forth in the articles , one of the Association ' s objectives was "Collective bargain-
ing between the employees and the Hortex Mfg Company."
13 This club or hall was rented by the Association for the meeting.
662514-46-vol. 63-21
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on account of the shortage of cotton goods . At this meeting, those
present were given an opportunity to reaffirm their affiliation with
the Association , or join it, if they had not previously signed the
prospectus . About 104 signatures were thus secured. Subsequent to
the meeting, the list was kept at the plant, and some 44 more signed it..
According to Diaz, after the Association's charter had been received,
Attorney Elfers learned that charges had been filed with the Board
by the Amalgamated, alleging that the Association was an illegal
organization , and Elfers immediately informed the officers of the
Association that no negotiations of any kind should be undertaken
with the respondents until the legal status of the Association had
been determined by the instant proceeding. Therefore the Associa-
tion has never requested recognition by the respondents or attempted
to bargain with the respondents in any manner. The Association
has never adopted any constitution or bylaws and has not selected
either a bargaining or grievance committee . The only committee
that is functioning is a committee which was appointed at the Rain-
bow Club meeting to look after ill employees. The Association has
no initiation fee, but collects weekly dues of 25 cents from each mem-
ber. These dues are currently paid to Alarcon at the plant office.
Other than a dance given during Christmas 1944, the Association has
been inactive pending the termination of the instant proceeding. The
respondents have never notified the Association that it could not con-
tinue to hold meetings in the plant if it so desired . However, no such
meetings have been held in the plant since the receipt of the charter.
3. Conclusions
The facts set forth above clearly show that at the time the Amal-
gamated was conducting an organizational campaign among the re-
spondents' employees, the Association was to a large degree formed
on the respondents' time and property with their knowledge and ap-
parent approval. The respondents contend, However, that no signifi-
cance should be given to these circumstances in view of their established
policy of permitting employees to use the company's time and prop-
erty for personal purposes. We are not persuaded by this contention,
especially in view of the fact that supervisory employees participated
in the Association and thereby gave it the respondents' mark of ap-
proval. As indicated above, Supervisor de la Pena was one of the
members of the Association's organizing committee and was a signa-
tory to the application for a charter. She also attended the commit-
tee's organizational meeting and is presently a member of the Asso-
ciation. Moreover, four other supervisory employees signed the
Association's prospectus. While these employees did not subsequently
become members of the Association , their adherence to it at its critical
HORTEX MFG. COMPANY 309
formative stage gave to the Association the prestige inherent in any
manifestation of employer approval. The participation of manage-
ment representatives in the formation of the Association is clearly
prohibited by the Act. It precluded the Association from reflecting
the free and uncoerced choice of the employees and acting as their
bargaining representative 1'
Under all the circumstances and upon the entire record, we find,
like the Trial Examiner, that the respondents dominated and inter-
fered with the formation and administration of the Association and
contributed support to it, within the meaning of Section 8 (2) of the
Act, and that thereby, by the conduct of its supervisory employees,
and by the other acts of assistance related above, the respondents in-
terfered with, restrained, and coerced its employees, within the mean-
ing of Section 8 (1) of the Act.
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the respondents set forth in Section III, above,
occurring in connection with the operations of the respondents de-
scribed 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. '
V. THE REMEDY
Having found that the respondents have engaged in and are engag-
ing in unfair labor practices affecting commerce, we shall order that
they cease and desist therefrom and take certain affirmative action to
effectuate the policies of the Act.
We have found that the respondents dominated and interfered with
the formation and administration of the Association and contributed
support to it. We find that the effects and consequences of such domi-
nation, interference, and support render the Association incapable of
serving the respondents' employees as a bona fide collective bargaining
agency and that the recognition of the Association by the respondents
as the bargaining representative of any of their employees would con-
stitute an obstacle to the free exercise of the employees of the right to
self-organization and to bargain collectively through representatives
of their own choosing. Therefore, in order to effectuate the policies of
the Act and to free the employees from the effects of the respondents'
unfair labor practices, we shall order that the respondents refrain from
1'Arnerican Enka Corporation v N L R B, 119 (2d) 60 (C C A. 4), enf'g 27 N. L.
R B 1057. The respondents as well as the Association, also point to the lack of evidence
that the respondent was hostile toward the Amalgamated However, we do not regard
this circumstance as significant in view of our finding that the respondents otherwise
assisted the Association and participated in its formation.
. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognizing the Association as the representative of their employees
for the purpose of dealing with the respondents concerning grievances,
labor disputes, wages, rates, hours of employment, or other conditions
of employment, and to completely disestablish the Association as such
representative.
The maintenance of a company-dominated and supported organiza-
tion presents a ready and effective means of obstructing self-organiza-
tion of employees and their choice of their own representatives for
the purpose of collective bargaining. The respondents' domination
and interference with the Association, their contribution of support to
it, and the activities of their supervisory employees, denied their em-
ployees the free opportunity to bargain collectively through repre-
sentatives of their own choosing, and substantially deprived their em-
ployees of their right to engage in concerted activities for the purpose
of collective bargaining or Other mutual aid or protection, except in
channels directed by the respondents. Because of the respondents' un-
lawful conduct and their underlying purpose, we are convinced and
find that the unfair labor practices found are persuasively related to
other unfair labor practices proscribed by the Act and that a danger of
their commission in the future is to be anticipated,from the course of
the respondents' conduct in the past. The preventive purpose of the
Act will be thwarted unless our order is coextensive with the threat.
In order, therefore, to make effective the interdependent guarantees
of Section 7, to prevent a recurrence of unfair labor practices, and
thereby to minimize strife which burdens and obstructs commerce and
thus effectuate the policies of the Act, we shall order the respondents
to cease and desist from in any other manner infringing upon the rights
guaranteed in Section 7 of the Act.
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. Amalgamated Clothing Workers-of America, affiliated with the
Congress of Industrial Organizations, and Employees Benefit Associ-
ation of Hortex Mfg. Company, are labor organizations, within the
meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of Employees Benefit Association of Hortex Mfg. Company
and by contributing support to it, the respondents have engaged in and
are engaging in unfair labor practices, within the meaning of Section
8 (2) of the Act.
3. By interfering with, restraining, and coercing their employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondents have engaged in and are.engaging in unfair labor prac-
tices, within the meaning of Section 8 (1) of the Act.
HORTEX MPG. COMPANY 311
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) 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 Relations Act,
the National Labor Relations Board hereby orders that the respond-
ents, Louis Horwitz, Albert Horwitz, and Henry Horwitz, co-partners
doing business as Hortex Mfg. Company, El Paso, Texas, and their
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Em-
ployees Benefit Association of Hortex Mfg. Company, or with the
formation and administration of any other labor organization, and
from contributing support to Employees Benefit Association of Hor-
tex Mfg. Company, or any other labor organization of their employees;
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist Amalgamated Clothing
Workers of America or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities, for the purpose 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) Refrain from recognizing Employees Benefit Association of
Hortex Mfg. Company as the representative of any of their employees
for the purpose of dealing with the respondents concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, and completely disestablish Employees
Benefit Association of Hortex Mfg. Company as such representative;
(b) Post at their plant at El Paso, Texas, copies of the notice
attached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the respondents' representative, be posted
by the respondents immediately upon receipt thereof, and maintained
by them for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the respondents to
insure that said notices are not altered, defaced, or covered by any
other material;
(c) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this prder, what steps the
respondents have taken to comply herewith.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"APPENDIX A"
NOTICE TO ALL EMPLOYEES
Pursuant to a decision and order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We hereby disestablish Employees Benefit Association of Hor-
tex Mfg. Company as the representative of any of our employees
for the purpose of dealing with us concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other con-
ditions of employment, and we will not recognize it or any suc-
cessor thereto for any of the above purposes.
We will not dominate or interfere with the formation or ad-
ministration of any labor organization or contribute financial or
other support"to it.
We will not in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form
labor organizations, to joint or assist Amalgamated Clothing Workers
of America or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection. All our employees are free to become or
remain members of this union, or any other labor organization.
HORTEX MFG. COMPANY,
Employer
By ---------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date-hereof,
and must not be altered, defaced, or covered by any other material.
0