The Grace Co.

National Labor Relations Board - Board Decisions

Jun 8, 1938

7 N.L.R.B. 766 (N.L.R.B. 1938)

In the Matter of THE GRACE COMPANY and UNITED GARMENT WORKERS
OF AMERICA, LOCAL No. 47
Case No. C-431.-Decided June 8, 1938
Children's Garment Manufacturing Industry-Interference, Restraint,, and
Coercion: threat to close plant-Company-Dominated Union: domination of and
interference with formation and administration ; support ; activities of super-
visory employees ; disestablished, as agency for collective bargaining-Discrimina-
tion: discharges : for union membership and activity-Lock-Out--Contract:
closed shop, with company-dominated organization; employer ordered to cease
giving effect to-Reinstatement Ordered: discharged employees; employees lockee
out-Back Pay: awarded: to discharged employees; to employees locked out;
not to include period between date of Intermediate Report and date of Decision
in case of employee as to whom Trial Examiner recommended dismissal of com-
plaint-Collective Bargaining: charges of refusal to bargain collectively, not
sustained.
Mr. Daniel J. Leary, for the Board.
Mr. Gibson Langsdale, of Kansas City, Mo., for the United.
Cooper, Neel, Kemp & Sutherland, by Mr. TVilliam E. Kemp, of
Kansas City, Mo., for the respondent.
Mr. Melvin S. Frazier, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by the United Ga ment Workers of Amer-
ica, Local No. 47, herein called the United, the National Labor Rela-
tions Board, herein called the Board, by George O. Pratt, Regional
Director for the Seventeenth Region (Kansas City, Missouri), issued
its complaint, dated September 8, 1937, against The Grace Company,
Belton, Missouri, herein called the respondent. The complaint alleged
that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1),
(2), (3), and (5), and Section 2 (6) and (7), of the National Labor
Relations Act, 49 Stat. 449, herein called the Act.
766
DECISIONS AND ORDERS 767
A copy of the complaint and notice of hearing thereon were duly
served on the respondent, the United, and The Grace Company
Workers' Labor Union, herein called the Workers Union.
On or about September 20, 1937, the respondent filed an answer
to the complaint which denied, in substance, that the respondent had
engaged in or was engaging in unfair labor practices, but admitted
certain allegations as to the nature of its business.
Pursuant to the notice of hearing and orders by the Regional Di-
rector postponing the- hearing, a hearing was held on October 12, 13,
14, 15, and 16, 1937, before Alvin M. Douglas, the Trial Examiner
duly designated by the Board. The Board, the respondent, and the
United 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.
The Trial Examiner granted the respondent's motion to strike the
testimony of Helen Swain, and recommended the dismissal of the
complaint in so far as it alleged she had been discriminatorily "locked
out." Swain's testimony bears upon the question of whether she was
discriminatorily locked out because of her membership in the United,
and we hereby reverse the Trial Examiner's ruling.
During the course of the hearing and in his Intermediate Report
the Trial Examiner made other rulings on motions and on objections
to the admission of evidence. The Board has reviewed such rulings
and finds that no prejudicial errors were committed. Such rulings are
hereby affirmed.
On January 11, 1938, the Trial Examiner issued his Intermediate
Report. He found that the respondent had engaged in and was en-
gaging in unfair labor practices within the meaning of Section
8 (1), (2), and (3), and Section 2 (6) and (7), of the Act.
He recommended that the respondent cease and desist from its
unfair labor practices; that it disestablish the Workers Union as
a collective bargaining 'agency; and that it reinstate certain em-
ployees with back pay. He also recommended that that part of the
complaint which alleged that the respondent had refused to bargain
with the United be dismissed. Subsequently the respondent filed a
statement of partial compliance with the Intermediate Report, and
exceptions to the Intermediate Report. The United filed an answer
to the respondent's statement of partial compliance and also filed ex-
ceptions to the Intermediate Report. Thereafter the Board notified
all parties of their right to request oral argument. No request was
-made for oral argument but the respondent requested permission to
file a brief. Although this request was granted no brief was filed. The
Board has fully considered the exceptions filed, and, in so far as they
are inconsistent with the findings, conclusions, and order set forth
below, finds no merit in them.
768 NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following
FINDINGS OF FACT
I. THE RESPON'DENT'S BUSINESS
The Grace Company is a corporation organized under the laws of
the State of Missouri. From the time it was organized in 1934
until February 15, 1937, its office and principal place of business
was in the home of its president, Mrs. Grace Van Brunt, in Kansas
City, Missouri. On February 15, 1937, the respondent moved its
office and plant to 3219 Troost Avenue, Kansas City, Missouri. In
June 1937 the office and plant were moved to Belton, Missouri.
The respondent is engaged in the manufacture of children's and
infants' garments. Approximately 50 per cent of the raw materials
from which such garments are manufactured are purchased outside
the State of Missouri, and more than 80 per cent of the products
the respondent manufactures are sold to customers outside the State
of Missouri.
H. THE LABOR ORGANIZATIONS INVOLVED
United Garment Workers of America, Local No. 47, is a labor or-
ganization affiliated with the American Federation of Labor, herein
called the A. F. of L. It admits to membership all employees of the
respondent except janitors, timekeepers, and supervisory and clerical
employees.
The Grace Company Workers' Labor Union is a labor organiza-
tion without affiliations. It admits to membership all employees of
the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; and the Workers Union
Shortly after March 1, 1937, the respondent completed moving its
equipment to the new plant on Troost Avenue, and during the fol-
lowing 4 weeks increased its personnel from approximately 8 to
approximately 64 employees. Among the new employees engaged
were Clara Enloe and Dorothea Yates, both of whom had been
members of the United. About April 1, 1937, Mrs. Yates talked
to Mrs. Enloe and they decided the respondent's employees should
be organized. Mrs. Yates attempted to interest her fellow employees
in the United. As a result of her activities a number of the em-
ployees visited Leonard Williams, business representative of the
United, and during the following 20 days, 23 of the respondent's
employees joined the United.
DECISIONS AND ORDERS 769
Mrs. Van Brunt soon learned of such activities. It is apparent
that she became concerned, because on about April 9 she called Mrs.
Byrne, her oldest employee in point of service, into her office and
asked her if she knew whether any of the girls were members of
the "union." Mrs. Byrne told her she thought Dorothea Yates, Nina
Hafford, and Hazel Martin were members.
About April 10 Williams and one Brookes called on Mrs. Van
Brunt and after advising her that a number of the respondent's
employees were members of the United, told her that they would like
to discuss the situation with her in an effort to reach an agreement.
Mrs. Van Brunt advised them she would have to confer with her
attorney.
On April 16 Mrs. Van Brunt met Williams and Brookes at her
attorney's office. Williams told her a majority of the employees were
members of the United and presented a proposed contract. Mrs. Van
Brunt requested that Williams give her additional time to consider
the contract.
That afternoon Mrs. Yates, Hazel Martin, and Grace Rollins, all
members of the United, were discharged. We will discuss the reason
for their discharge under subsection B hereof. It is sufficient to state
at this point that their discharge was considered by other employees
to have been due to their membership in and activities on behalf of
the United and believed that if Mrs. Van Brunt signed a United
contract she would have to reinstate them.
On April 17 a representative of the International Ladies Garment
Workers Union, herein called the International, affiliated with the
Committee for Industrial Organization, herein called the C. I. 0.,
called on Mrs. Van Brunt and, claiming the International had juris-
diction of the respondent's employees, presented her with a proposed
contract, although the International had not attempted to organize the
employees.
About April 19 Brookes called Mrs. Van Brunt on the telephone and,
according to Mrs. Van Brunt, angrily accused her of discharging the
three United members because of their union affiliations.
In the meantime Mrs. Van Brunt's interest in the union affiliations
of her employees had not waned. She frequently called Mrs. Byrne
into her office and asked her whether certain employees were members
of the United and urged her to find out how the employees felt about
the "union." During one of such conferences, Mrs. Van Brunt told
Mrs. Byrne that she (Mrs. Van Brunt) "would have to join the C. I. 0.
or none at all; that she could not pay, the wages the A. F. of L. de-
manded." (It appears that the United contract provided for a mini-
mum weekly wage of $16, whereas the International contract provided
for a minimum weekly wage of $13.) That Mrs. Van Brunt made
770 NATIONAL LABOR RELATIONS BOARD
such statements appears clear because another employee, Nellie
Boesch, was told by Mrs. Van Brunt that before she would sign with
the United she would close the plant.
On April 21 or 22 Mrs. Van Brunt ordered an election among the
employees, ostensibly to determine to which union they preferred
to belong. The ballots were distributed and collected by Mrs. Blann,
Mrs. Van Brunt's stenographer, and Minnie Gehrke, the floorlady.
The respondent relies on the fact that Mrs. Van Brunt ordered the
election to show its good faith, and numerous witnesses testified
that they voted their choice of unions. However, it appears that
the ballot was not a secret one, that at least two United members
were not given ballots, that Mrs. Blann, in response to questions as
to which union to vote for, told at least four employees they should
vote for the International, and that the floorlady and some, if not
all, of the clerical employees voted in the election. It is, therefore,
not surprising, particularly in view of Mrs. Van Brunt's previous
statements that the plant could not be operated under a contract
with the United and the general impression prevalent in the plant
that Yates, Rollins, and Martin had been discharged for their United
affiliations, that the International, apparently without a single mem-
•iber in the plant, won the "election" 33 to 24. However, the em-
ployees were not told the result of the vote. Instead Mrs. Van Brunt
told them she had signed a contract with the International and she
hoped they realized "the importance of becoming members of that
organization." 1
On April 23 Williams visited Mrs. Van Brunt again. Mrs. Van
Brunt told him she had signed with the International and saw no
reason to negotiate further with him. Williams told Mrs. Van
Brunt that he thought the contract was invalid, and as the United
Tepresented a majority of the employees, he insisted on bargaining
rights for the United members. Mrs. Van Brunt questioned the
jurisdiction of the United over her plant. Williams told her the
United had jurisdiction and requested that he be given samples to
send to headquarters to determine the question. Mrs. Van Brunt
refused to give him the samples and, according to her own testimony,
became very upset and stated she could close the plant. That after-
noon a note, signed by Mrs. Van Brunt, was passed around among
the employees stating that the plant was being closed that evening.
On Monday, April 26, Mrs. Byrne talked to Mrs. Van Brunt on
the telephone. Mrs. Van Brunt asked Mrs. Byrne if she wanted to
work and upon receiving an affirmative reply, told her to report
to a private home in Kansas City. Mrs. Byrne went to the private
1 The contract was given to a representative of the International for execution but
the International never executed it
DECISIONS AND ORDERS 771
home and while she was there Mr. Van Brunt, vice president of the
respondent, came in. He told Mrs. Byrne that they "would fool
those union people yet."
On the same date Lucille Smyth, another employee, called Mrs.
Van Brunt on the telephone and asked her when the plant would
reopen. Mrs. Van Brunt told her she did not know. Mrs. Smyth
then told Mrs. Van Brunt that she had a, friend who was a- C. I. O.
organizer, and he thought they might organize the employees. Mrs.
Van Brlint invited them to come out to the plant. Mrs. Smyth and
her friend, one Basher, apparently an organizer for the United
Automobile Workers of America, went to the plant and met Mrs.
Van Brunt, Mrs. Blannn, and Floyd, the respondent's bookkeeper.
Upon receiving Mrs. Van Brunt's promise to give them a list of the
employees and their addresses, Mrs. Smyth and Basher left to secure
International application cards. They were unable to obtain the.
cards and Mrs. Smyth telephoned Mrs. Van Brunt and told her they,
had been unable to get the cards. Mrs. Van Brunt told her they
might be obtained some other way.
The 'following day Minnie Gehrke, the respondent's floorlady,
secured International application cards and gave them to Mrs. Van
Brunt. That evening Mrs. Smyth went to Mrs. Van Brunt's home
and Mrs. Van Brunt gave her the cards, Mrs. Smyth testified that
as she was leaving Mrs. Van Brunt requested that Mrs. Byrne
be made "head" of the organization and Mr. Van Brunt told her
to tell the employees they visited that if they did not sign the cards
it would be necessary to liquidate the plant.
The following day Mrs. Smyth, Basher, Minnie Gehrke, Mrs.
Blann, Mrs. Byrne, Hazel Neumer, an employee who is in a super-
visory position, Neumer, her husband, and two or three other em-
ployees whom Mrs. Van Brunt had requested Mrs. Smyth to take
along, visited the employees.2 Following the instructions of Mr.
Van Brunt they told the employees they visited that if they did not
sign the cards the plant would be liquidated. As a result of their
efforts 38 employees signed the cards.
However, the International contract had not been executed and
returned by Thursday and after Mrs. Van Brunt had called the In-
ternational representative and had been advised that it might never
2 The respondent denied that Hazel Neumer was a supervisory employee and tried to
minimize her position with the respondent . However, the record shows that prior to the
time Mrs . Gehrke was engaged, Hazel Neumer was the floorlady and after Mrs. Gehrke
was hired Hazel Neumer was promoted to a more responsible position In her new
position she not only timed and set prices for the operations performed on the gar-
ments and checked all work tickets , but she helped Mrs. Gehrke on the floor when neces
sary. Furthermore , there is very credible testimony to the effect that she is the assistant
manager of the plant . It is clear , therefore, that she is at least a supervisory employee
whose duties required her to be in constant communication with Mrs Van Brunt.
772 NATIONAL LABOR RELATIONS BOARD
be signed, a decision was made to change the incipient organization
to an independent union. Just who made the decision is not clear,
although it does appear that Mrs. Blann called a Mrs. Todd, who,
according to Mrs. Blann, had formed an independent union in an-
other garment factory in Kansas City, to secure information regard-
ing the manner an independent union should be formed. We do not
consider it important to determine who made the decision as it clear-
ly appears from the record that Mrs. Van Brunt continued to lend
her active support to the efforts of her agents and her "loyal" em-
ployees to form a labor organization.
That evening Mrs. Van Brunt called Mrs. Byrne on the telephone
and told her that she (Mrs. Van Brunt) had decided against "going
C. I. 0." and instructed Mrs. Byrne to go with Mrs. Gehrke, Mrs.
Neumer, and Mrs. Smyth to see one Tyler, an attorney, the follow-
ing morning . She cautioned Mrs. Byrne to keep her name out of it:
Mrs. Van Brunt also called Mrs. Smyth that evening and told her
she wanted Mrs. Smyth to go with Mrs. Gehrke, Mrs. Neumer, and
Mrs. Byrne to see a lawyer about forming a "company union" and
cautioned Mrs. Smyth to keep her name out of it. Telegrams were
also sent to all those employees who had signed the International
cards advising them to attend a meeting at the Hotel Baltimore
Friday afternoon "expenses paid." The telegrams were sent by
Hazel Neumer and Mrs. Gehrke.
The following day, April 30, Mrs. Gehrke, Mrs. Byrne, Floyd,
Mrs. Neumer , Mrs. Smyth, Mrs. Blann, and two or three other em-
ployees called on Tyler. He refused to accept them as clients and
referred them to Brasher, another Kansas City attorney. They
thereupon visited Brasher and told him they had attempted to af-
filiate with the International but were refused because they came
under the jurisdiction of the United and that they did not want to
join the A. F. of L. He thereupon advised them that under the Act
they had a right to organize an independent union if they so de-
sired. The meeting at the Hotel Baltimore was held that after-
noon and Minnie Gehrke, the floorlady, was chosen temporary chair-
man. Those present, numbering about 40, voted to form an inde-
pendent union when they were advised, apparently by Brasher, that
it would be the best method to get back to work.
The following day another meeting was held at the Hotel Bal-
timore. All employees had been invited to attend such meeting by a
registered, special -delivery letter sent the night before. Eight mem-
bers of the United accepted the invitation and attended the meeting.
However, they refused to sign a petition to form an independent
union and they were requested to leave. The remaining 35 or 40 em-
ployees then adopted bylaws for "The Grace Company Workers'
Labor Union ," selected officers, and chose a committee to negotiate
DECISIONS AND ORDERS 773
with the respondent. Floyd, the bookkeeper, was elected president,
and Mrs. Blann, Mrs. Van Brunt's stenographer, was elected secretary
of the new organization. After the Workers Union had been formed,
Mrs. Blann called Mrs. Van Brunt on the telephone and told her it
had been formed and advised her that it represented a majority of
the employees. She also asked Mrs. Van Brunt if they could come
back to work on Monday and requested a conference with her. Mrs.
Van Brunt told her the plant would reopen Monday and acceded
to the request for a conference. Mrs. Blann returned to the meeting
and announced that the plant would reopen May 3; and the committee
left for the plant to "negotiate" with Mrs. Van Brunt regarding a
contract. The character and purpose of the Workers Union is well
exemplified by a statement made by one of the committee members to
Mrs. Van Brunt when the committee arrived at the plant. This mem-
ber of the committee advised Mrs. Van Brunt that they had come to
give the plant back to her. Some perfunctory "bargaining" took
place and on Monday morning a "contract" containing a "closed
shop" provision was formally executed.
The record further discloses that Mrs. Van Brunt paid some of
the employees who had been active in forming the Workers Union for
the time they lost during the week. Thus Mrs. Blann and Mrs. Byrne,
whose main work during the week was coercing employees into signing
International cards and later forming the Workers Union, received
a full week's salary for such work. Furthermore, Mrs. Van Brunt
gave Mrs. Byrne $10 to pay Basher for his efforts in persuading
employees to sign the International cards.
We find that the respondent has dominated and interfered with the
formation and administration of the Workers Union and has con-
tributed support thereto, and by such acts has interfered with, re-
strained, and coerced employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
B. Discrimination in regard to hire and tenure of employment
1. The discharges
On April 16, 1937, Dorothea Yates, Hazel Martin, and Grace Rol-
lins were each given a note signed by Mrs. Van Brunt which read,
"Please come to the office and turn in your tickets on today's work
and will give you a check and call you in again when we are in need
of you for further work."
All were members of the United, Mrs. Yates being the most active
United member in the respondent's employ. Not one of them had
ever been reprimanded or criticized for any reason-in fact, each one
8 The respondent admitted this note was meant as a discharge.
774 NATIONAL LABOR RELATIONS BOARD
of them had been complimented on her work by either Mrs. Gehrke
or Mrs. Van Brunt or by both.
The respondent contended it was unaware of their union affiliations
at the time of their discharge and as justification for discharge of such
employees claims that Dorothea Yates was discharged because she
stayed away from work 1 or 2 days each week for the last 3 weeks
she worked and when she was at work she was not attentive to her
duties; that Grace Rollins was discharged because she spent too much
time away from her machine; and that Hazel Martin was discharged
because she complained she could not earn enough at the low prices
the respondent paid and appeared so "dissatisfied."
It would have been a strange coincidence that the only employees
the respondent had ever discharged should all have been members of
the United, one of them the most active union worker in the respond-
ent's employ, although only about 50 per cent of the respondent's
production employees were members of the United.4 The reasons ad-
vanced by the respondent for their discharge are even more improbable
when it is considered that all of such employees had been complimented
on their work, and not one of them had been reprimanded for any
cause.
Furthermore, statements made by Mrs. Gehrke and Hazel Neumer
immediately after the discharge of such employees dispel all doubts
that they were discharged because of their union affiliations and
activities. On the evening they were discharged Mrs. Gehrke told
Lillian Adams, another employee, that they were discharged because
they belonged to a union and were causing trouble. Gehrke also told
Sirrilda Holt, another employee, shortly after their services were ter-
minated, that they had been discharged because they were agitators.
Moreover, on April 16 or 17, 1937, Hazel Neumer told Howard Owens,
an employee, that they had been discharged for their union activities.
Under the circumstances we are satisfied that they were discharged
for their union affiliations and activities and we find that the re-
spondent has discriminated in regard to the tenure of employment of
Dorothea Yates, Hazel Martin, and Grace Rollins, thereby discour-
aging membership in the United.
2. The lock-out
The complaint does not allege that the closing of the plant on April
23, 1937, was an unfair labor practice and, therefore, we will not con-
sider whether or not it was discriminatory, discouraging membership
in a labor organization.
The complaint, however, does allege that Ethel Erwin, Jessie
Cleeton, Marie Stewart, Opal Lindsey, Clara Enloe, Nellie Morrow,
' Mrs. Van Brunt testified that they were the only employees she had ever discharged.
DECISIONS AND ORDERS 775
Nellie Boesch,'Alma Kirkner, Florence Pennington, Lillian Adams,
Rorie Stallings, Lillie Hobbs, Fula Kendrick, Sirrilda Holt, Nora
Schaefer, Della Schell, and Howard Owens were locked out on May
3, 1937, and that Helen Swain was locked out on May 6, 1937, be-
cause they had joined and assisted the United.
On May 3, 1937, the respondent reopened its plant and all of the
above-named employees except Della Schell and Helen Swain went to
the plant to resume their positions. When they arrived they found
Hazel Neumer, her husband, and Floyd, president of the Workers
Union, blocking the entrance. They were told they could not come in
unless they joined the Workers Union. This they refused to do, and
when they attempted to go into the plant without joining the Work-
ers Union they were repulsed by Floyd and Mr. Neumer. They con-
tinued to seek admittance the better part of the morning but each
time were denied. They thereupon established a picket line as a pro-
test against the respondent's refusal to permit them to resume their
positions.
Although the respondent had entered into a closed-shop contract
with the Workers Union, the respondent does not attempt to justify
the lock-out on that ground. Instead it claims that no one with
authority to hire and discharge refused to permit them to resume
their positions.
The Workers Union's refusal to allow such employees to' resume
their positions unless they joined the Workers Union was known to
the respondent and was within the scope of the authority purported
to be granted the Workers Union by the closed-shop agreement. It
necessarily follows that the respondent is responsible for the lock-out
of such employees. -
We find that the respondent discriminated in regard to the tenure
of employment of such employees because they refused to join the
Workers Union, thereby discouraging membership in the United and
encouraging membership in the Workers Union. -
Della Schell did not go to the plant on May 3, 1937. She testified
she did not do so because she had heard at the meeting at which the
Workers Union was organized that only Workers Union members
were to be reemployed and as she was a member of the United she
believed that it would be useless for her to report for work.
We do not think Mrs. Schell's failure to go to the plant in any
way altered her position as an employee and had not the respondent
engaged in its unfair labor practices we are satisfied that Mrs. Schell
would have reported for work May 3, 1937. We, therefore, find
that the respondent discriminated in regard to her tenure of em-
ployment also, as in the case of the others.
Helen Swain had temporarily left the respondent's employ about
April 15, 1937, to take care of her sick mother in a neighboring city.
106791-38-vol. vii-50
776 NATIONAL LABOR RELATIONS BOARD,
She returned to the plant on May 6, 1937, to resume her position
but was told by one of the pickets that United members were locked,
out. As she was a member of the United she did not apply for
reinstatement.
The respondent contends that Helen Swain had quit her position
in April and was, therefore, no longer an employee of the respondent.
Although Helen Swain admitted on the stand that she did not expect
the respondent to hold a machine for her it is apparent that both
she and Mrs. Van Brunt considered her absence temporary and that
she would be reinstated, upon her return because when Mrs. Swain
went on leave Mrs. Van Brunt asked her if she was quitting and
she told Mrs. Van Brunt that she would be back as soon as her mother
was able to take care of herself.
We are satisfied that,' had not the respondent been denying work
to United members, Helen Swain would have been reinstated to her
position on May 6, 1937. Her failure to speak to Mrs. Van Brunt
regarding reinstatement was unquestionably due to the respondent's
discrimination against United members and was a natural conse.
quence of the respondent's illegal acts for which it is responsible.
We, therefore, find that the respondent locked out Helen Swain
on May 6, 1937.
C. The alleged refusal to bargain
The complaint alleges and the United contends that all production
employees of the respondent, exclusive of foremen, supervisors, and
timekeepers, constitute an appropriate unit. The complaint further
alleges that although the United has been designated the bargaining
representative by a majority of the employees in such unit the re-
spondent has refused- to bargain with it. It appears from the record
that such a unit would insure employees the full benefit of their
right to self-organization.
The record does not conclusively show, however, the number of
employees in such unit in April 1937, the date the United attempted
to bargain with the respondent. Williams testified that he under-
stood there were 42, but other testimony indicates that there were
at least 50 employees in such unit at all times during the month
of April 1937.
To sustain the allegation that the respondent refused to bargain
with the United it was necessary to prove the United had been desig-
nated the bargaining representative by a majority of the employees
in such unit. As it appears that only 23 of the respondent's employees
were members of the United, the record does not satisfactorily prove
that the United represented a majority of the employees in the unit.
The complaint, in so far as it alleges the respondent has refused
DECISIONS AND ORDERS 777
to bargain collectively with the representative of its employees must,
therefore, be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent described
in Section I above, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States, and tend to
lead to,labor disputes burdening and obstructing commerce and the
.free flow of commerce.
V. THE REMEDY
We have found that the respondent dominated and interfered with
,the formation and administration of the Workers Union and con-
tributed support thereto. In order to remedy the respondent's un-
lawful conduct, the respondent must withdraw all recognition from
the Workers Union as an organization representative of its employees
for the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, and con-
,ditlons of employment. We will, therefore, order the immediate dis-
,establishment of the Workers Union as such representative. Further,
the respondent must cease to give effect to its contract with the
Workers Union.
Since we have found that the respondent discriminatorily discharged
Dorothea Yates, Hazel Martin, and Grace Rollins because of their
inembership in the United, they are entitled to reinstatement to their
former positions together with reimbursement for any losses of earn-
ings they suffered by reason- of their unlawful discharge, and we
shall so order.
We have found that Ethel Erwin, Jessie Cleeton, Marie Stewart,
Opal Lindsey, Clara Enloe, Nellie Morrow, Nellie Boesch, Alma
Kirkner, Florence Pennington, Lillian Adams, Roxie Stallings, Lillie
Mobbs, Eula Kendrick, Sirrilda Holt, Nora Schaefer, Della Schell,
,and Howard Owens were locked out on May 3, 1937, because they
refused to withdraw from the United and join the company-sponsored
Workers Union. They are entitled to reinstatement to their former
positions together with reimbursement • for any loss of earnings they
have suffered by reason of the respondent's unlawful conduct.
We have found Helen Swain was locked out on May 6, 1937, and
we shall order the respondent to reinstate her to her former position
and to pay her a sum of money equal to the amount she would nor-
mally have earned from May 6, 1937, to the date of the Intermediate
Report and from the date of, this, order to the date she is offered
reinstatement, less any amount she may have. earned during such
778 NATIONAL LABOR RELATIONS BOARD
period. As we have previously held, we do not believe that the re-
spondent could have been expected to reinstate her after it received
the Intermediate Report recommending the dismissal of the com-
plaint as to her, and therefore, it should not be required to pay back
pay from that time to the date of this order.'
Practically all of the above-named employees were paid on a piece-
work basis. The amount of back pay to be paid such employees shall,
therefore, be computed at the rate each earned for the 2-week period
immediately prior to April 23, 1937, subject to any modification in
the pay rate which has been instituted since April 23, 1937.
At the hearing testimony was adduced to show the earnings of
such employees since the date they were discharged or locked out
by the respondent. However, it appears that many of the witnesses
were uncertain as to the exact amount they had earned during such
period and we will therefore make no finding as to the amount of
their earnings subsequent to the date they were discriminately de-
prived of employment by the respondent.
One such employee has secured employment as a domestic. Part
of her salary consists of board and room which is furnished her by
her present employer. In computing the amount of back pay to
be paid her the reasonable value of the board and room she receives
shall be deducted.
We shall also order the respondent to cease and desist from the
unfair labor practices in which it has engaged and shall order it to
perform such other affirmative acts as will give its employees free
opportunity to exercise the rights guaranteed them by Section 7 of
the Act.
Upon the basis of the foregoing findings of fact and upon the entire
record in the proceedings, the Board makes the following :
CoNCLusIoNs of LAW
1. United Garment WWTorkers of America, Local No. 47 and The
Grace Company Workers' Labor Union are labor organizations, within
the meaning of Section 2 (5), of the Act.
2. By dominating and. interfering with the formation and admin-
istration of The Grace Company WTorkers' Labor Union, and by con-
tributing support thereto, the respondent has engaged in and is en-
gaging in unfair labor practices, within the meaning of Section 8 (2),
of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Dorothea Yates, Hazel Martin, Grace Rollins, Ethel Erwin,
6 See Matter of E. R. Heffelfinger Company, Inc and United Wall Paper Crafts of North
America, Local No. 6, 1 N L. R. B. 760
DECISIONS AND ORDERS 779
Jessie Cleeton, Marie Stewart, Opal Lindsey, Clara Enloe, Nellie Mor-
row, Nellie Boesch, Alma Kirkner, Florence Pennington, Lillian
Adams, Roxie Stallings, Lillie Hobbs, Eula Kendrick, Sirrilda Holt,
Nora Schaefer, Della Schell, Howard Owens, and Helen Swain be-
cause of their membership in the United, thereby discouraging mem-
bership in a labor organization of its employees, the respondent has
engaged in and is engaging in unfair labor practices, within the mean-
ing of Section 8 (3), of the Act.
4. 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.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7), of
the Act.
6. The respondent has not engaged in an unfair labor practice
within the meaning of Section 8 (5), 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-
ent, The Grace Company, Belton, Missouri, and its officers, agents,
successors, and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of The
Grace Company Workers' Labor Union, or with the formation and
administration of any other labor organization of its employees, and
from contributing support to The Grace Company Workers' Labor
Union, or to any other labor organization of its employees;
(b) Giving, effect to its contract with The Grace Company Work-
ers' Labor Union ;
(c) Discouraging membership in the United Garment Workers of
America, Local No. 47, or any other labor organization of its em-
ployees by discrimination in regard to hire or tenure of employment
or any term or condition of employment;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed by Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
780 NATIONAL LABOR RELATIONS 130ARD
(a) Offer Ethel Erwin , Jessie Cleeton , Marie Stewart, Opal Lind-
sey, Clara Enloe, Nellie Morrow , Nellie Boesch, Alma Kirkner, Flor-
ence Pennington , Lillian Adams, Roxie Stallings , Lillie Hobbs, Eula
Kendrick , Sirrilda Holt, Nora Schaefer , Della Schell , Howard
Owens, Helen Swain , Dorothea Yates, Hazel Martin , and Grace
Rollins immediate and full reinstatement to their - former positions,
without prejudice to their seniority and other rights and privileges;
(b) Make whole Dorothea Yates, Hazel Martin and Grace Rollins
for any loss of earnings they have suffered by reason of their dis-
charge, by payment to each of them, respectively, of a sum of money
equal to that which each of them would normally have earned from
the date of her discharge to the date of such offer of reinstatement,
less any amounts each has earned during that period;
(c) Make whole Ethel Erwin, Jessie Cleeton, Marie Stewart, Opal
Lindsey, Clara Enloe, Nellie Morrow, Nellie Boesch, Alma Kirkner,
Florence Pennington , Lillian Adams , Roxie Stallings , Lillie Hobbs,
Eula Kendrick , Sirrilda Holt, Nora Schaefer , Della Schell, and
Howard Owens for any loss of earnings they have suffered by reason
of being locked out on May 3, 1937 , by payment to each of them,
respectively, of a sum of money equal to that which each of them
would normally have earned during the period from the date they
were locked out to the date of such offer of reinstatement, less any
amount each has earned during such period;
(d) Make whole Helen Swain for any loss of earnings she has
suffered by reason of being locked out on May 6, 1937, by payment
.to •her , of a sum of money equal to that which she would normally
have earned during the period from May 6, 1937 , to the date of the
Intermediate Report and from the date of this order to the date
of such offer of reinstatement , less the amount which she has earned
during such period;
(e) Withdraw all recognition from The Grace Company Work-
ers' Labor Union as the representative of any of its employees for
the purpose of dealing with the respondent concerning grievances,
labor disputes , wages, rates of pay, hours of employment, or other
conditions of employment , and completely disestablish The Grace
Company Workers' Labor Union as such representative;
(f) Immediately post notices in conspicuous places throughout
its plant, and maintain such notices for a period of at least thirty (30)
consecutive days from the date of posting, stating (1) that the re-
spondent will cease and desist as aforesaid, and (2 ) that the re-
spondent withdraws all recognition from The Grace Company Work-
ers' Labor Union as the representative of any of its employees for
the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
DECISIONS AND ORDER S - 781
conditions of employment, and that The Grace Company Workers'
Labor Union is disestablished as such representative;
(g) Notify the Regional Director for the Seventeenth Region in
writing within ten (10) days from the date of this order what steps
the respondent has taken to comply herewith.
And it is further ordered that the complaint, in so far as it alleges
the respondent has refused to bargain collectively with the repre-
sentative of its employees, be and it hereby is, dismissed.
[ SAME TITLE ]
AMENDMENT TO DECISION AND ORDER
June 17, 1938
On June 8, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Order in the above-entitled
case.
Paragraph 5 of subsection A of Section III is hereby amended
to read as follows :
That afternoon Mrs. Yates, Hazel Martin, and Grace Rollins, all
members of the United, were discharged. We will discuss the rea-
son for their discharge under subsection B hereof. It is sufficient
to state at this point that other employees considered their discharge
to have been due to their membership in and activities on behalf
of the United and believed that if Mrs. Van Brunt signed a United
contract she would have to reinstate them.