The Baer & Wilde Co.

National Labor Relations Board - Board Decisions

Oct 19, 1938

9 N.L.R.B. 420 (N.L.R.B. 1938)

In the Matter of THE BAER & WILDE CO., and SWANK PRODUCTS,
INC. and INTERNATIONAL JEWELRY WORKERS' UNION, .LOCAL-,1 8
Case No. C-388.-Decided October 19, 1938
Jewelry YLannfactaiiny hidrtstry-IntciIcicnec, Restraint, and Coercimi-
-Company-Donminated Union: domination of and interference with formation;
support: disestablished , as agency for collective bargainingDisctiniination
-charges of , not sustained-Unfair Labor Practices: complaint dismissed; as to
one respondent , for lack of jurisdiction
Mr. Bernard J. Donoghue, for the Board.
Hinckley, Allen, Tillinghast c6 Wheeler, by Mr. Chauncey E.
Wheeler, and Mr. IIa'ro7d A. And'retas, of Providence, R. I., for the
respondents.
Mr. Clarence A. Barnes, of Boston, Mass., for the Association.
Mr. William F. Guffey, Jr., of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges and amended charges having been filed by International
Jewelry Workers'. Union, Local 18, herein called the Union, the
National Labor. Relations Board, herein called the Board, by A.
Howard Myers, Regional Director for the First Region (Boston,
Massachusetts), issued and duly served its complaint dated Decem-
ber 1, 1937, against The Baer & Wilde Co. and Swank Products,
Inc., both of Attleboro, Massachusetts, herein called the respondents,
-alleging that the respondents had engaged in and were engaging in
unfair labor -practices affecting commerce within the meaning of
Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act., As
to the unfair labor practices, the complaint as amended at the hear-
ing alleged in substance: (1) that the respondents had interfered,
with ^ and, were interfering with their employees in the exercise of
their rights to self-organization; (2) that the respondents had domi-
nated, interfered with, and fostered the formation and administra-
9 N. L R. B., No. 37
420
DECISIONS AND ORDERS 421
tion of Swank Products Employees Association, herein called the
Association; a labor organization of their employees; and (3) that
the respondent, Swank Products, Inc., by the discharge of Helen
Robillard on or about June 10, 1937, and by its refusal to give her
employment on November 29, 1937, upon the termination of her
sick leave, had discriminated in regard to her hire and tenure of
'employment, thereby discouraging membership in the Union.
On December 3, 1937, the respondents filed a motion to extend the
time to answer the complaint. This motion was denied by the Re-
gional Director. 'Thereupon the respondents filed their respective
answers each of which, as amended at the hearing, denied that they
had engaged in the unfair labor practices alleged in the complaint.
In addition the respondents set forth separate defenses, The Baer
A Wilde Co. -averring that it transacts no business and, maint airs its
corporate charter solely for the purpose of goodwill, and Swank
Products, Inc. averring that its business has no substantial relation
to interstate commerce, and that Helen Robillard was not discharged,
but was temporarily laid off solely because of a business depression.
Swank Products, Iiic., also filed with the Regional Director a "Mo-
tion for Election," requesting the Board forthwith to conduct an
election among its employees for the determination of their collective
bargaining representative and to postpone the hearing on the com-
plaint until after such election. This motion was not acted upon by
the Regional Director, but was disposed of by the Trial Examiner
as hereinafter set forth.
Pursuant to notice duly served upon the respondents, the Union,
and the Association, a hearing on the complaint was held at Attle-
boro, Massachusetts, from December 2 to December 15, 19371 before
Samuel F. Jaffee, the Trial Examiner duly designated by the Board.
The respondents and the Board \were represented by counsel, par-
ticipated in the hearing,- and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues.
At the beginning of the hearing counsel for the Association filed its
petition to intervene and moved that an election be held among the
respondents' employees, pending the outcome of which, the hearing
be adjourned. The Trial Examiner granted the petition but denied
the motion. Counsel for the Association then moved for a continu-
ance in order to complete a previous engagement in a State court.
This motion was likewise denied. He thereupon entered his appear-
ance of record but was absent during most of the hearing. At the
close of the'Board's case, both respondents moved to dismiss the com-
plaint on the grounds that the Board was without jurisdiction and
that the evidence did ' not substantiate the allegations of the com-
plaint. At the close of the hearing this motion was allowed as,to
422 NATIONAL LABOR RELATIONS BOARD
The Baer & Wilde Co. and denied as to Swank Products, Inc. At
the close of the hearing the respondents', motion, for election was
denied.
On January 20, 1938, the Trial Examiner filed his Intermediate
Report in which he found that Swank Products, Inc., hereinafter
called Swank, had engaged in and was engaging in the unfair labor
practices alleged in the complaint, except that it did not discriminate
against Robillard by refusing to give her employment on November
29, 1937. He accordingly recommended that Swank cease and desist
from engaging in such unfair labor practices, that it cease giving
recognition to and that it disestablish the Association as collective
bargaining representative for any of its employees, and that it rein-
state Helen Robillard with back pay from June 11 to July 22, 1937.
Thereafter, Swank and the Association filed exceptions to the
Intermediate Report and to various rulings of the Trial Examiner.
Pursuant to notice duly served on all the parties, a hearing for the
purpose of oral argument was had before the Board in Washington,
D. C., on March 3, 1938. Swank and the Union appeared; the Asso-
ciation filed a brief. The Board has reviewed the rulings of the Trial
Examiner on motions and on objections to the admission of evidence
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed. The Board has also considered the exceptions to
the Intermediate Report and to the rulings of the Trial Examiner
and hereby sustains those exceptions of Swank to the Trial Ex-
aminer's finding that Robillard was discriminatorily discharged. In
all other respects the Board finds the exceptions of both Swank and
the Association to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF SWANK
The respondent , Swank Products , Inc., is a Delaware corporation,
authorized- and licensed to do business in Massachusetts . It is en-
gaged in the manufacture, sale, and distribution of jewelry , particu,
larly tie clips , tie chains , and cuff links . It operates its only plant for
the manufacture of these products in Attleboro, Massachusetts, and
maintains sales offices throughout the United States. The raw mate-
rials used by Swank consists chiefly of gold, silver , copper, and other
metals . More than 50 per cent of such raw materials are shipped to
Swank's plant from points outside Massachusetts . From December 1,
1936, to December 1, 1937, the cash value of the jewelry manufac-
tured and sold by Swank , together with the novelties which it pur-
chased and resold, amounted to $2,570,069 .54, 95 per cent of which
was shipped to points outside Massachusetts.
DECTSION5 AND ORDERS 423
At the time of the hearing, Swank employed approximately 350
person s.
II. THE ORGANIZATIONS INVOLVED
International Jewelry Workers' Union, Local 18, is a labor organi-
sation affiliated with the American Federation of Labor, admitting
to membership employees of the jewelry manufacturers of ,Attleboro,
including the employees of Swank.
Swank Products Employees Association is an unaffiliated- labor
organization, admitting to membership all employees of Swank ex-
cept foremen and executives. The Association's membership is
limited to employees of Swank.
III. THE UNFAIR LABOR PRACTICES
A. Interference with -the f ormation , and administration
of the Association
During 1936 and the spring of 1937, the Union had been active in
organizing the jewelry workers in Attleboro and neighboring cities.
Except for the tool makers employed by Swank, who had joined a
tool makers' union affiliated with the American Federation of Labor,
Swank's employees remained unorganized . The evidence shows, how-
ever, that by the spring of 1937, some of Swank 's employees had be-
come interested in the Union and were attending union meetings.
The activity which resulted in the formation of the Association
began in tb,^ latter part of April 1937, when William McClellan, a
department supervisor 1 in Swank's plant, told Thomas Stevenson,
Swank's general foreman, that he had been thinking about a "com-
pany union" and he thought it would be a "good thing" if they had
an organization to "keep what we already have." Stevenson agreed
with McClellan and, together, they invited about 15 employees,
including about 8 supervisors, to attend a meeting for the purpose of
discussing the advisability of forming such an orgMlization. This
meeting was held on the evening of May 4, 1937, in a small room
adjoining Stevenson*s office. Among those present were Stevenson,
the general foreman, McClellan, John I. Wiggins, Erle Nickerson,
Lester Davey, George Desormeau, John Fuery, Albert Gaboury, all
of whom are department supervisors, and Joseph Harney, who has
occasional supervisory powers. Stevenson called the meeting to
order, stated the purpose of the meeting, and said he was presenting
the idea on behalf of one of the employees who had made the sug-
' Swank 's plant is divided into appioximately eight departments , each of which is headed
by a supervisory employee whose duties are similar to those of a working foreman or
strawboss . These supervisors have no absolute power to hire or fire , but they are con-
sulted concerning lay-offs and discharges and suggest which employees should be discharged
The entire plant is supervised by one general foreman.
424 NATIONAL LABOR RELATIONS BOARD
gestion to him. , Stevenson also said'he thought the"idea a good one,
mentioned some of the advantages Swank's employees enjoy, which
are not accorded employees in other plants, and stated that he thought
it would be a good thing to protect these advantages. After an
informal discussion, a vote was taken to determine whether or not
the merits of such an organization should be further investigated and
presented to all the employees. All those present, except two, voted
in favor of further investigation. It was suggested that an attorney
be consulted for advice in the matter. A few days later, Stevenson
and three or four,other, employees, acting upon Stevenson's sugges-
tion,- interviewed Attorney Chauncey E. Wheeler regarding the for-
mation of a labor organization. Wheeler, who is counsel for the
respondents in this proceeding, told this group that the organiza-
tion which they contemplated would be legal and advised them to
calla meetinb of all Swank's employees-and present, the plan to them.
He further stated that he could not, assist in the formation of this
organization inasmuch as he had previously represented Swank.
Wheeler also advised Stevenson to take no part in the formation or
administration of such an organization because of his supervisory
duties,and his close association with the management.
A meeting attended by about 250 of Swank's employees was held
on the evening of May 14, 1937, in the assembly room of the plant.
J. Carlton Bagnall, Swank's vice president in charge of production
and labor relations, gave Stevenson permission to hold the meeting
in the plant. It does not appear who called this meeting but Childs,
a non-supervisory employee presided. Stevenson attended, informed
the employees that he could have no further part in the ' organiza-
tion, and after stating that they would henceforth have to proceed
without his assistance, he withdrew from the meeting. After May
14, 1937, Stevenson took no part in the formation or administration
of the Association.
Those present- at the May 14 meeting appointed a committee, rep-
resenting the various departments of Swank's plant to complete the
organization of the Association. On May 19 and 20, 1937, the com-
mittee conducted an election at the plant during working hours for
the purpose of determining the desires of the employees regarding
the formation of the Association. The ballots, which were mimeo-
graphed by the wife of one of the employees, gave the employees an
opportunity to vote "Yes" or "No" on the proposition, "Are you in
favor of an Employees Association?" Two hundred and seventy-
five employees voted in favor of the Association and 38 voted against
it. Thereafter application cards were printed and distributed for
the employees' signatures. The treasurer of the Association testified
that 388 employees had signed application cards. Several super-
visory employees are included in this number.
DECISIONS AND ORDEI{S 425,
On or about June 1, 1937, the first meeting of the - Association.
was held in one of the doWntowii halls. At this meeting, at which-
about 100 employees were present, officers of the Association were
elected. Thereafter, a committee, appointed by the newly elected
president, engaged Clarence A. Barnes; attorney-at-law, to assist
them in completing the organization; Barnes drew up the Asso-
ciation's bylaws following the suggestions submitted by the members-
of the Association. On•June 18, 1937, at a second meeting attended
by about 200 employees, the bylaws were apparently adopted without
objection. It had been tentatively decided that dues would- be` 25
cents per month. Accordingly, some dues were collected and the
money turned over to Barnes, who then proceeded' to incorporate the
Association. A charter, dated June 24, 1937, was issued to the
Association by the Commonwealth of Massachusetts.
B. Conclusions with respect to the Association
The testimony of many witnesses stands uncontradicted to the
effect that application cards were signed and dues were collected
during working hours without objection from Swank; that the first
two organizational meetings of the employees were held in Swank's-
plant; and that Stevenson and the other supervisory employees took
a leading part in the formation of the Association. -
Swank asserts that it in no way has interfered with, dominated,
or assisted in the formation and administration of the Association,-
and that the employees acted voluntarily and without coercion or-
intimidation. Under the circumstances surrounding the formation
of the Association, we cannot believe that Swank's employees have-
actedvoluntarily. All the employees were well aware of the active
part taken by their general foreman and their supervisors during-
the formative stages of the Association. A supervisor had sug-
gested the idea, many other supervisors, who were opposed to unions,"-
favored this organization, and the general foreman had taken the
leading part until advised by counsel that "reflection might be cast
upon the Association" if the general foreman had anything to do-
with it. Certainly, it cannot be said that employees exercise a free
and unrestrained choice of a representative for collective bargaining
2 John Wiggins a supervisor , testified as follows concerning a conversation between
himself and Joseph Harney, who has occasional supervisory powers and who is now vice
president of the Association : " Q. Now I wish you would tell us what you said to Joseph
Harney. A. I asked Joe about the same question and he made some such remark as 'What
do you wantT and I said, 'They aie going to have a meeting upstairs to discuss union,
or associations, some of the boys are mtereated in an independent association ' and Joe
damned it and said,-'I don't want anything to do with it' So I said, 'Come on, will
you?' and be said , 'I don't like unions ' I said , 'Maybe I don't,' and I said 'Maybe you are
the fellow that we want to tell us about unions that we don 't know' and he said, 'all
right' and he came up " Harney testified that lie was opposed to unions and had so
expressed himself at the May 4 organizational meeting Two other supervisors testified,
to a' similar dislike of unions. -
-426 NATIONAL LABOR RELATIONS BOARD
when the wishes of their superiors have been so clearly expressed.
It is significant that Wheeler, the respondents' counsel, realized this
when he advised -Stevenson to take no part in the formation -of- the
Association. By permitting its plant to be used, without charge, -for
the first two organizational meetings, and by permitting the members
of the Association to solicit membership and collect dues during
working hours, Swank contributed aid to the Association. Swank,
through its foreman and supervisory employees took an active part
in the formation of the Association, - thereby- lending --its- support
-and influence to the Association.
We find that Swank, by its activities described above, has inter-
fered with, restrained, and coerced its employees in the exercise
of the rights guaranteed by Section 7 of the Act; has dominated
and interfered with the formation of the Association, and has con-
-tribiuted aid'and support to it; and that by its conduct it-has dis-
-couraged membership in the Union.
C. The discharge of Helen Robillard
Helen Robillard, who had worked for Swank approximately 3
years, was given notice on June 11, 1937, that she was laid off
forthwith. She was one of the two employees who did not vote at
the May 4 meeting, and had on several occasions expressed her
-opposition to the Association. She frequently attended meetings of
the Union and joined the Union on June 4, 1937.
Swank asserts that Robillard was not discharged, but was tem-
porarily laid off despite her seniority and excellent workmanship
because her physical condition would not permit her to perform a
variety of operations required of a curtailed staff during business
-depression. Robillard had taken a voluntary leave of 5 weeks the
previous summer, and a contemplated operation would require that
she take another leave in the near future. The evidence supports
Swank's claim that Robillard was temporarily laid off for the rea-
sons stated by Swank. Of the 10 employees laid off on June 11, 6
belonged to the Association. One week later, five more employees,
including two members of the Association, were laid off. The only
ether employee of Swank who belonged to the Union was retained.
On July 22, four of those employees who had been laid off, includ-
ing Robillard, were called back to work. Robillard resumed her
work on July 23, 1937, and worked until August 22, 1937, when she
-took sick leave for the purpose of having the contemplated opera-
tion. She did not report back to work until November 29, at which
time she was told that about 50 employees had been laid off during
her absence, that there was no work for her, and that she would be
called back to work as soon as possible. At the hearing, McClellan,
Stevenson, and Bagnall all testified that they would be glad to give
DECISIONS AND ORDERS 427
Robillard employment, when business warrants it. We find that
Robixllard's lay-off was not occasioned by her membership,,. in or her
activity on behilf of The Union.
1V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of Swank set forth in Section III
above, occurring in connection with the operations of Swank 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 Swank has dominated and interfered with the
formation of the Association, and has contributed aid and support
to . it, -we'-shall- order Swank to withdraw recognition from- and to,
disestablish the Association as collective bargaining representative
for any of its employees. We shall further order Swank to cease
and desist from its unfair labor practices and to take certain affirma-
tive action which we deem necessary to effectuate the purposes and
policy of the Act.
We have found that Helen Robillard was not discriminatorily
discharged. We shall, therefore, dismiss the complaint as to the
discharge of Robillard.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Jewelry Workers' Union, Local 18, and Swank
Products Employees Association are labor organi ations, within the
meaning of Section 2 (5) of the Act.
2. Swank, by dominating and interfering wilh the formation of
Swank Products Employees Association and by contributing sup-
port thereto, has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (2) of the Act.
3. Swank, by interfering with, restraining , and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act, 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. Swank has not discriminated in regard to the hire and tenure
of employment of Helen Robillard within the meaning of Section
8 (3) of the Act.
-428 NATIONAL LABOR r.^.r.tirro^s BOARD
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
- respondent, Swank Products, Inc., Attleboro, Massachusetts, and its
,officers, agents, successors, and assigns, shall:
1. Cease and desist :
(a) From in any manner dominating or interfering with the ad-
=ministration of Swank Products Employees Association, or with the
formation or administration of any other labor organization of its
,employees, and from contributing support to Swank Products Em-
ployees Association, or to any other labor organization of its
'employees ;
(b) From in any other manner interfering with, restraining,, or
coercing its employees in the exercise of the right to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collec-
tively 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. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Swank Products Employees
-Association as a representative of any of its employees for the pur-
poses of dealing with Swank concerning grievances, labor disputes,
rates of pay, wages, hours of employment, or other conditions of em-
ployment, and completely disestablish Swank Products Employees
Association as such representative;
(b) Immediately post notices in conspicuous places throughout
its plant and maintain such notices for a period of at least thirty
(30) consecutive days stating : (1) that Swank will cease and desist
as aforesaid, and (2) that Swank withdraws and will refrain from
all recognition of Swank Products Employees Association as a rep-
resentative of any of its employees for the purpose of dealing with
Swank concerning grievances, labor disputes, rates of pay, wages,
hours of employment and other conditions of employment, and com-
pletely disestablishes it as such representative;
(c) Notify the Regional Director for the First Region in writing
within ten (10) clays fi.om the (late of tliis Order what steps Swank
has taken to comply herewith.
It is further ordered that the complaint in so far as it alleges
that the respondent, Swank Products, Inc., has engaged in unfair
labor practices, within the meaning of Section 8 (3) of the Act, be,
and it hereby is, dismissed; and,
DECISIONS AND ORDERS 429
Further ordered that the complaint, in so far as it alleges that
the respondent, The Baer & Wilde Co., has engaged in unfair labor
practices, within the meaning of the Act, be, and it hereby is,
dismissed.
MR. DONALD WAKEFIELD SMITH took no part in the consideratiolf
of the above Decision and Order.