Wells-Lamont-Smith Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1942

41 N.L.R.B. 1474 (N.L.R.B. 1942)

In the Matter of WELLS-LAMONT-SMITH CORPORATION and AMALG--
MATED CLOTHING WORKERS OF AMERICA, CIO; and LOUISIANA GLOVE
WORKERS ASSOCIATION, PARTY TO THE CONTRACT
Case No. C-0058-Decided June 30, 1.942
Jurisdiction : glove manufacturing industry.
Unfair Labor Practices:
Interference, Restraint, and Coercion: anti-union statements of plant manager
and foreman ; threat to close plant rather than recognize union ; questioning of
employee with reference to affiliation; advising employees to join "local"
union ; expressions of preference for "local" union ; disguised threats of
discharge for union activity ; refusal to consider grievances ; charges of sur-
veillance of union meeting, dismissed.
Company-Dominated Union: formation of, to forestall "outside" organization;
calling employees to meeting in plant where manager expressed preference
for "local" organization and derogated "outside" union, and where employees
were solicited by "local" organizer to join latter organization ; organization
meetings of "local" on company property ; supervisory employees directing
employees to go to such meetings; solicitation; by "local" organizers on
respondent's time and property, with acquiescence of respondent, although in
violation of rules; recognition of "local" as exclusive bargaining repre-
sentative on representation of "local" that it had majority, despite respondent's
knowledge that "local" was being investigated by Board ; entry into contract
with "local"; altering method of pay roll distribution to assist " local" in dues
collecting ; collection of "local" dues on company time and property.
Discrimination: discharges for union membership and activity ; plant disturb-
ances resulting from factional differences created by employer's unfair labor
practices , held seized upon by employer as pretexts in order to rid itself of
members of "outside" union.
Remedial Orders : disestablishment of company-dominated union; abrogation of
contract ; reinstatement with back pay of employees discharged for union
activities ; employee who joined armed forces granted back pay and rein-
statement upon application within 40 days after being discharged from naval
service.
Mr. Bertram Diamond, for the Board.
Fyffe & Clarke , by Mr. Albert J. Smith, of Chicago, Ill., for the
respondent.
Mr. Frank Schaps, of Cincinnati , Ohio, for the Amalgamated.
Mr. Edward A. Glenn and Mr. Davis Benning , of Louisiana, Mo.,
for the association.-
Mr. Charles W. Schneider, of counsel to the Board.
41 N. L. R. B., No. 253.
1474
'WELLS-LAMONT=SMITH• CORPORATION . 1475
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a third amended charge 1 duly filed on October 17, 1941,
by Amalgamated Clothing Workers of America, herein called the
Amalgamated, the National Labor Relations Board, herein called the
Board, by the Regional Director for the Fourteenth Region (St.
Louis, Missouri), issued its complaint dated October 18, 1941, against
Wells-Lamont-Smith Corporation, Louisiana, Missouri, herein called
the respondent, alleging that the respondent had engaged in\and
was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (2), and (3) 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 notices of hear-
;ng, were duly served upon the respondent, the Amalgamated, and
Louisiana Glove Workers Association,2 herein called the Association,
a labor organization alleged in the complaint to be dominated by the
respondent.
With respect to the unfair labor practices, the complaint alleged
in substance that'the respondent: (1) on or about July 28, 1941,
fostered and promoted the formation of the Association; thereafter
interfered with its administration and contributed support to it;
on or about September 1, 1941, recognized the Association as the
exclusive bargaining representative of its employees when the Associ-
ation did not represent the uncoerced majority of such employees;
and on or about September 5, 1941, entered into an agreement with
the Association with respect to wages, hours, and working condi-
tions; (2) on various dates between August 20 and October 9, 1941,
discouraged membership in the Amalgamated by discriminating in
regard to the hire and tenure of employment of Charles Lee Barnum,
Henry Kuna, Joe Powers, Leonard High, Alfred Tumlison, Mabel
Veto, and Ferne Culling 3 because they had joined and assisted the
Amalgamated; (3) from on or about July 28, 1941, urged and warned
its employees against joining or retaining membership in the Amal-
gamated; threatened to close its plant if its employees joined the
Amalgamated or did not join the Association; questioned its em-
1 The original , first and second amended charges , respectively, were filed on August 1 and
28, and September 9, 1941.
2 Incorrectly referred to in these proceedings as Glove Workers Association Plan.
8 At the close of the Board' s case, on motion of counsel for the Board, the Trial Examiner
dismissed the allegations of the complaint that the respondent had discriminated in regard
to the hire and tenure of employment of Charles Lee Barnum and Joe Powers.
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees about their union affiliation and activity ; engaged in sur-
veillance of meetings of the Amalgamated ; and threatened members
of the organizing committee of the Amalgamated with discharge ;
and (4 ) by the foregoing acts interfered with , restrained , and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
On November 7, 1941 , the respondent filed an answer denying the
alleged unfair labor practices . The answer affirmatively averred
(1) that the persons alleged to have been discriminated against in
regard to hire and tenure of employment were discharged for cause
on or about the dates mentioned in the complaint ; ( 2) that on or
about September 1, 1941 , the respondent recognized the Association
after investigating that organization 's claim that it represented a
majority of the employees in the respondent 's plant, and that on
October 9 , 1941 , following negotiations with the Association, it
entered into a written agreement with the Association with respect
to wages, hours , and working conditions in its Louisiana , Missouri,
plant. On November 13, 1941 , the ; Association filed an answer
denying that the respondent had dominated or interfered with its
formation or administration , or contributed support to it.
Pursuant to notice , a hearing was held at Louisiana , Missouri,
from November 13 to 19, 1941, before Webster Powell, the Trial
Examiner duly designated by the Chief Trial Examiner . The Board,
the respondent , the Amalgamated, and the Association , were repre-
sented by counsel and participated in the hearing . Full oppor-
tunity to be heard , to examine and cross -examine witnesses, and to
introduce evidence bearing upon the issues was afforded all parties.
At the close of the hearing counsel for the Board moved to conform
-the pleadings to the proof with respect to names, dates, and other
formal matters. The Trial Examiner granted the motion. Counsel
-for the Board also moved , to take the deposition of Alfred Tumli-
son, one of the persons named in the complaint , wino was unable to
testify because he was serving in the United States Navy . The Trial
Examiner reserved ruling on the motion , and thereafter denied it in
his Intermediate Report on the ground that, Tunilison's deposition
was not necessary to the disposition of the case . At the conclusion
of the hearing , counsel for the respondent moved to dismiss the
complaint as to Tumlison and further moved to dismiss each and
every allegation of the complaint . The Trial Examiner reserved
rulings on those motions and thereafter denied them in his Inter-
mediate Report. During the course of the hearing the Trial Exam-
iner also made rulings on various objections to the admission of
evidence . The Board has reviewed the rulings of the Trial Examiner
find finds that no prejudicial errors were committed . The rulings
WELLS-LAMONT-SMITH CORPORATION 1477
are hereby affirmed. Counsel for the respondent and for the As-
sociation argued orally before, and submitted briefs to the Trial
Examiner.
On`January 14, 1942, the Trial Examiner filed an Intermediate
Report, copies of which were duly served upon the parties. The
Trial Examiner found that the respondent had engaged in and was
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 Act and recommended that it cease and desist therefrom and
take certain affirmative action to effectuate the policies of the Act.
On February 9, 1942, the respondent filed exceptions to the Inter-
mediate Report and a brief in support of the exceptions. No request
for oral argument was made by any of the parties. The Board
has considered the exceptions to the Intermediate Report and the
brief submitted by the respondent and, except insofar as the excep-
tions are consistent 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 or FACT
I. 'THE BUSINESS OF THE RESPONDENT
Wells-Lamont-Smith Corporation is a Minnesota corporation with
its principal office and place of business in Chicago, Illinois. It is
engaged in the manufacture, sale, and distribution of work gloves.
The respondent operates a number of plants, the only one with which
this proceeding is concerned being its glove plant at Louisiana,
Missouri. From January 1, 1941, until November 1941, the respond-
ent used in its operations at the Louisiana, Missouri, glove plant raw
materials, consisting principally of flannels and leather,' valued at
more than $100,000, over 50 percent of which was received from
States other than Missouri. During the same period the respond-
ent manufactured finished products valued in excess of $100,000,
over 50 percent of which was shipped to points outside the State of
Missouri. In its answer the respondent admitted that it is engaged
in commerce.
H. THE LABOR ORGANIZATIONS INVOLVED
Amalgamated Clothing Workers of America is a labor organiza-
tion affiliated with the Congress of Industrial Organizations, admit-
ting to membership employees of the respondent.
Louisiana Glove Workers Association is an, unaffiliated labor or-
ganization. admitting to membership employees of the respondent
only.
1478 DECISIONS OF NATIONAL .LABOR -RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Domination of and interference with the formation and admin-
istration of the Association; interference, restraint and coercion
Early in July 1941, the Congress of Industrial Organizations in-
itiated an organizational drive in the Louisiana, Missouri, area.
Shortly thereafter four employees in the respondent's glove plant,
Byron Holliday, Hattie Griffith,4 Margaret Heady, and Gladys Eth-
erly, intent upon preventing the appearance of an "outside" labor
organization in the glove plant, called upon the respondent's manager,
C. K. Waite. They informed Waite that there was considerable labor
agitation in town and that they wanted to start an independent
union .5 Waite is said to have stated that he could have nothing to do
with any labor organization and that they should use their own
judgment. Holliday then employed Davis Benning, a local attorney,
to assist in the formation of the organization. On Monday, July 28,
1941, printed cards announcing a meeting of the respondent's em-
ployees on that evening, and bearing at the bottom the name of the
Louisiana Chamber of Commerce as the ostensible sponsor,6 were
distributed to employees in the lobby of the plant.?
The meeting was held at the Clarke Theater in Louisiana and was
attended by 200 to 300 employees. Russell Armatrout, president of
the Chamber of Commerce and owner of the theater, donated its use
for the meeting. ' Forelady Griffith stood in the lobby for the pur-
pose of preventing the entrance of any persons other than employees
of the respondent. Arthur Markham, foreman of the pressers, also
attended. Benning and Holliday were the principal speakers. Ben-
ning described a "Plan," or constitution, for an independent, or
"local," labor organization known as the Louisiana Glove Workers
Association.8
Considerable opposition to such an association was manifested. at
the meeting. Holliday spoke in favor of it and, in opposition to a
union affiliated with the A. F. of L. or the C. I. O. Benning stated that
he did not care what the employees decided upon. After considerable
discussion Holliday asked for a standing vote as to whether those
present preferred a "local" union, an "outside" union, or neither.
* The sister of Gertie Griffith, a forelady in the respondent 's "stitching department.
5 Unless otherwise indicated , the findings in this subsection are based upon substantially
uncontroverted testimony.
e In the summer of 1941 the Chamber undertook a campaign to finance, by purchase of
company stock or by donation, an addition to the respondent 's glove plant.
7IIolliday testified that the cards were later paid for by the Association.
8 Bennmg secured a copy of the "Plan" from Edward A. Glenn, another local attorney,
who had drafted it for , a similar organization of another plant of the respondent's in
Louisiana . The latter plant is not involved in these proceedings . Benning and Glenn
represented the Association in the present proceedings. Glenn was also present at the
theater meeting.
-WELLS-LAMONT-SMITH CORPORATION 1479
The largest number appeared to favor no organization. The meeting
then broke up in confusion without any conclusions having been
reached.
The purposes of the projected association, as described by Benning
and later posted in the plant, were stated to be to secure the benefits
and protection of the Act and to designate representatives for the
purposes of collective bargaining. Provision was made for the cir-
culation of two petitions to be signed by employees' one indicating
that the signatories approved the Association and thereby joined it-'
the other indicating that the signatories opposed it. The "Plan" and
the Association were to be adopted when a majority of the employees
had signed' the first petition. All employees of the glove plant were
eligible to membership except "office help," supervisors, executive
officers, and stockholders. Provision was made for the nomination of
representatives' by petition, and the selection of five representatives,-
from among the nominees, by secret ballot. 'Representatives were to
hold offiee'for 1 year, choose a chairman, secretary, and treasurer from
among themselves, and act as exclusive bargaining representatives of
the employees. Eligibility to nomination and election as a repre-'
serltative as well as eligibility to vote was conditioned solely upon
employee status, not upon membership in the association.9 Petitions
for approval of the Association were subsequently circulated through-
out the plant, but no opportunity was accorded the employees to sign
petitions opposing it,-,although expressly provided for under the
"Plan." -
On July 29, the morning after the theater meeting, Waite arrived
at- the factory and found it in an "upset condition." He sought for
an explanation and found Holliday in the lobby of the plant with
several other employees. Holliday informed Waite 10 that the meet-
ing of the previous evening had ended without anything definite be-
ing accomplished and that he wished to explain further to the em-
ployees what a "local" organization could do for them. Waite there-
upon'issued instructions to have 3 or 4 "representative" employees
from each department of the plant brought to the recreation room in
the basement in order that he (Waite) could talk to them. At about
8:30 a. m. Waite addressed this group of about 30 employees who
Although the "Plan" accorded the franchise and the right to hold office to all employees,
regardless of their membership in and eligibility to the Association , it contained the fol-
lowing curious" provision : "For the purpose of defraying the expenses of the Union, each
member shall be subject to and shall pay dues in an amount to be fixed by the Board of
Representatives , not exceeding , however, the sum of $1.50 per month. Upon payment of
the first month 's dues there shall be delivered to the employee a card or certificate stating
that he has paid the first month 's dues, and by the payment of additional dues fixed by the
Board of Representatives , shall be and remain a member of the Employees Wagner Act
U i " In on. [ talics supplied 1
10 Waite first testified that this conversation took place in the recreation room. Later he
stated that it occurred in the lobby. We find the latter to be the fact. -
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been sent down by the supervisory staff and others in accordance
with his instructions. He informed them that for 10 years there had
been harmony in the plant and that he hated to see any change in the
situation, but that unionization was apparently progressing through-
out the country and that now "we had to decide what- we wanted to
do." Although it would suit him, he said, if the employees wished
not to form any union at all, that course would apparently have to
be eliminated because "we had to decide on what union we wanted
rather than having no union any more." Thus, he informed the
group, they were left with three choices: the A. F. of L., the C. I. 0.,
or "some sort of home association." He undertook to point out the
advantages and disadvantages of the 3 alternatives. Although he in-
formed the group that the Company would not interfere, he expressed
his own preference for a "local" organization, "something they could
cook up amongst themselves."
One of the employees inquired whether the respondent would object
to an independent union. Waite replied that he thought not; that
there was such an organization at the respondent's Beardstown, Illi-
nois, plant. At Beardstown, he said, an "outside" and an "inside"
union had been organized simultaneously and that operations were
thereby disrupted, and the quality and quantity of gloves fell to such
an extent that the Company could no longer send-work there. How-
ever, he said, an election was eventually held at Beardstown and the
"inside" organization adopted, and thereafter everything proceeded
harmoniously.
With respect to an "outside" organization, Waite stated that he
had heard that there were organizers in town attempting to form
such a union and that these organizers would probably call at the
employees' homes and promise them a , great deal which `they could
not live up to.
Holliday, who stood at the ping pong table near Waite, also spoke.
He assumed the role of protagonist of a "local" organization, assur-
ing those present that the Company would not discharge them for
joining the "local" organization. According to Mary Madison, an
employee, whose testimony we credit, as did the Trial Examiner,
when Holliday was asked whether employees who did not join the
"local" organization would be discharged, Waite answered in the
negative, but Holliday added that the respondent could use other
means of getting rid of them." Holliday further stated in the pres-
ence of Waite that he wanted a "local" organization in order to pre-
vent "outside" unions from getting into the plant and fomenting
labor trouble; and that Wells (an official of the respondent) and
11 Madison 's testimony was denied by Holliday.
WELLS-LAMONT-SMITH CORPORATION 1481
Waite were "going to stick behind" the "local'.' union .12 Holliday
further asserted that while an "outside" organization would charge
a $20 initiation fee the "local" would exact only a nominal fee and
would furthermore keep the money in Louisiana. He then requested
those present to sign petitions, as provided in the "Plan," indicating
that they approved and joined the Association, and to circulate them
throughout the plant for the signatures of other employees. At
about this time 13 Waite left the room at Holliday's request 14
Following that first meeting, 8 or 10 other groups were summoned to
the recreation room. The meetings continued all day. Holliday in
substance told each gathering of the advantages of "a union of their
own." Forelady Griffith and Foreman Markham sent down employees
for the various meetings. Bud Waite, son of and assistant to, Manager
Waite, gave Griffith a list of those to be sent down. Referring to the
organizational activities of the promoters of the Association in the
plant on that day, Waite testified that he decided "to turn them loose
for the day." Sometime on the same day Holliday posted a copy of the
"Plan" on the respondent's bulletin board. Waite testified that he
allowed it to remain after receiving advice from Glenn that he should
not interfere with it.
Shortly after those meetings, according to Henry Kuna's undisputed
testimony, Foreman Markham told four or five of the pressers that
there was "trouble ahead out there [at the nursery] and the C. I. O.
wasn't any good..." 15
Around the same time Markham.informed Joe McBee and Ross Cal-
loway, pressers, that the respondent would close the plant rather than
recognize the C. I. O. if that union succeeded in organizing the employ-
ees. He advised McBee and Calloway to join the Association. On the
following day McBee and Calloway asked Markham whether they
would be discharged if they did not join the Association. Markham
replied that he did not think they would be discharged but did think
that if work got slack they would be laid off unless they joined the
Association. We find, as did the Trial Examiner, that Markham made
v These findings are based upon the testimony of Madison and James Colbert , which we
credit Waite testified that lie did not heat Holliday make such a statement , and that
although - Ilolliday talked while Waite was in the room, Waite did not hear all that was
said because of the confusion . Holliday, when given an opportunity to deny having made
the remark , replied that lie (lid not recall it
13 There was some conflict in the testimony as to how long Waite ieniained in the room.
We find that he lett at the time indicated above
14 Holliday testified • "I told Mr Waite I thought he was needed in the office and I didn't
need him in there anymore and I would do the talking myself , and he left " '
15 Markham was referring to Stark Brothers Nurseries and Orchards Company, a local con-
cei n whose employees had been organized by the C. I 0 A strike occurred some time dur-
ing the summer of 1941 at the nursery
1482 DECISIONS OF NATIONAL LABOR "RELATIONS BOARD
the above statements.." A, few days after August 8, Waite summoned
Mary Madison, an employee, to his office, accused her of being a "ring-
leader" of the, C. I. 0., and asked why she had joined. He then in-
formed her that he would "rather they would form a local union."
In the meantime the Amalgamated had been endeavoring to organize
the respondent's employees. Immediately after the meeting at the
Clark Theater on July 28, several employees went to see John W.
Wiggs, an organizer for the United Shoe Workers of America, a C. I.
0. affiliate. They, informed Wiggs that an attempt was bellig made to
form a "company union" at the Wells-Lamont-Smith plant and asked
whether the C. 1. 0. would not do something to organize the employees.
Wiggs agreed to do what he could.
On the evening of July 29 Wiggs conducted a meeting for employees
of the respondent who favored affiliation with an "outside" organiza-
tion. About 23 attended. On the following evening Richard Brazier,
an organizer for the Amalgamated, conducted the first offi cial meeting
of that, organization in the public park. An Amalgamated mass meet-
ing was held at the same location on August 6.
On August 8 members of the Amalgamated elected officers and mem-
bers of the organizing committee.17 On August 13 a public meeting of
the Amalgamated was held in the City Hall: Foreman Magness at-
tended that meeting.
Meanwhile, following the meetings in the recreation room, the organ-
izers of the Association conducted an intensive membership campaign
in the plant during working hours. Employees were solicited at their
places of work by Meadows, Heady, Hattie Griffith, Holliday, Amie
Dillender, and others, to sign the Association's petitions. These peti-
tions were circulated openly and with no attempt at concealment.
Although the respondent's rules forbade the circulation of "round
robins," the Association's solicitors were not reprimanded. ' Waite was
aware of extensive solicitation by the Association on July 29, and did
nothing to stop it. As he admitted, he "turned them loose for'the day."
By August 14, according to the testimony of Harlan Hanaver, presi-
dent of the Association, approximately 296 of about 350 or 375 employ-
ees who were eligible for membership in the Association had signed
16 These findings are based upon the testimony of McBee . Neither McBee nor Calloway are
presently employed by the respondent, Calloway did not testify Markham testified that
McBee asked him if he (McBee) could (sic) join the C. I 0 , the A F. of L, or the local union
and that he replied that he was not interested in any union ( a fact at variance with his pres-
ence at the Clark Theater meeting and his subsequent activities ) and knew nothing about it.
Markham denied having had any conversation with McBee and Calloway subsequent to the
first, and also denied the remarks attributed to him by McBee . We reject Markham 's testi.
moray as did the Trial Examiner.
17 Charles Barnum and Eleanor Kuna, respectively , were elected president and secretary.
Henry Kuna and Mabel Veto were elected to the organizing committee
I
WELLS-LAMONT-SMITH CORPORATION 1483
petitions. We find that during the period from July 29 to August 14,
1941, the respondent was aware that the Association was conducting its
organizational campaign in the plant during working hours, and made
no attempt to prohibit such activities.
A number of Association witnesses testified that they were asked by
Amalgamated members on the respondent's premises to join the latter
organization. It appears, however, from the number and the circum-
stances of these occurrences, that they were isolated and casual in-
stances and not part of a regular program of solicitation or cam-,
paigning, and we so find.
The record does not disclose the exact date on which the Association
was formally organized, but on August 1 the Amalgamated filed
charges with the Board alleging, Into, alia, that the Association was
a company-dominated labor organization. About August 8 Stewart
Meacham, then a field examiner for the Board, called at the plant,
talked with Waite and Holliday with respect to the Association, and
was given a copy of the "Plan" upon which its organization was based.
On August 14 the Association held an election of officers in the
City Hall. A notice concerning the election was posted on the plant
bulletin board. Prior to the election itself, nominating petitions were
circulated in the plant during working hours. Harlan Hanauer, Ray
Boyles, Earlene Frederick, Robert Stevens, and Nellie Meadows were
elected officers and members of the board of representatives. Im-
mediately after this election these representatives called upon Waite,
stated that the Association had been formed and requested recognition
of the Association as the bargaining agent of the employees. Waite
informed the representatives that he would have to take up the matter
with the Chicago office. Shortly thereafter Waite instructed the
supervisory staff to have nothing to do with either the Association
or the Amalgamated."'
Toward the end of August, in response to the Association's request
for recognition, Arnold Norum,,one of the respondent's Chicago offi-
cials, and Waite met with the Association's board of representatives
in the office of Attorney Glenn. Armatrout, president of the Chamber
of Commerce, attended this meeting at the invitation of Glenn "as a
neutral observer and as a representative of the community -interest in
the negotiations." Glenn displayed signed petitions which he assured
Norum and Waite contained the signatures of approximately 300 of the
respondent's employees. He informed them, however, that they would
not be permitted to examine the petitions in detail, but could inspect
18 This finding is based upon the testimony of Markham. He estimated that the instruc-
tion was given "probably a couple of weeks , or three weeks" after the Clark Theater
meeting. Waite testified that he could not recall whether it was prior to"or subsequent
to the Association 's notification that it had secured a majority.
1484, DECISIONS OF NATIONAL" LABOR REI;ATION'S BOARD
the affidavits attached thereto ' certifying that the signatures', were
genuine. Norum then stated that he recognized the Association as the
bargaining representative of-the employees and agreed to enter into
negotiations for a contract. No pay-roll check wits made. Waite
testified that he accepted the word of the Association's representatives
that they had a majority.
As the organizational campaign. of the Association intensified, the
rivalry between members of that organization and members of the
Amalgamated became acute. Arguments arose throughout the plant
concerning the relative merits of the two organizations. During the
latter part of August, members of the Association, among them Mar-
jorie Surls, Florence Kenney, Margaret Heady, and Thelma Goodman,
and particularly Meadows, chairman of its grievance committee, on one
or more occasions complained to Forelady Griffith, Magness, and Waite
that persons working on the shaft second from the elevator 19 in the
leather stitching department were making insulting remarks to mem-
hers of the Association and otherwise creating a commotion by loud
talking and whistling. The testimony establishes; and we find, that
the Association members identified, those of whom they complained as
"a group of girls that belonged to the C. I. 0." Magness' testified that
he attempted to correct the situation by closer supervision and by
speaking to employees,'but that these measures had no effect and the
commotion continued. Of the 14 persons operating stitching machines
on the second shaft, 9 belonged to the Amalgamated and 5 to the
Association. Magness did not, however, identify any faction as being
exclusively responsible for the commotion. Although he named
Eleanor Kuna and Nellie McBee as the "worst," it appears from
Magness' testimony that members of the Association had a large part
in this disturbance.'° He never reported the situation to Waite, how- -
ever, except "in a general way," and did not indicate to Waite that
anyone in particular was responsible. Forelady Griffith, who spent
about one-third of her time on that floor and who watched the girls
following a complaint by Meadows to her, saw nothing unusual.
Nevertheless, on September 5 Waite summoned nine Amalgamated
members, all but two of whom were on the organizing committee, to
1U There were four shafts or work benches in this department . The second shaft was
the middle of three devoted to leather stitching and is frequently referred to in the record
as the middle shaft. The fourth shaft was occupied by cotton stitchers.
° Magness testified that after the Clark Theater meeting there was a considerable
amount of group discussion . He would order these groups to break up . Among those
directed to do so were Hattie Griffith , Kenney, Heady , McBee (Amalgamated ), Maadows,
Verona Dawson ( Amalgamated ) and 25 or 30 others. On occasions Kenney, Heady, Surls
and Etherly ( also an Association member ) talked, left their work places, and "commoted."
Eleanor Kona testified , and we find , that Association members, particularly Heady and
Kenney, ridiculed the, Amalgamated and indulged in insulting remarks to Amalgamated
members
WELLS-LAMONT-SMITH CORPORATION 1485
-the shipping room and warned them concerning their conduct.21
Waite testified that he received the names of the alleged offenders
from the Association grievance committee, and that, to this list he
added three or four more persons whose identity he did not disclose,
and concerning whom no complaints had been lodged. Two of the
latter were from other departments. Of the remainder of the nine,
.employees in the group, three had either not been charged with any
offense, . or Waite could not remember what reports had been made
concerning them.22 We, cannot credit Waite's assertion that the
alleged conduct of the Amalgamated members was the motive for sum-
moning them to the shipping room.23 We find that the employees who,
were warned were selected solely because of their allegiance to the
Amalgamated.
Waite informed the group that they had been accused of making
slurring and sarcastic remarks about other employees and calling
them names . They could, he told them, join any church or union they
wanted, but they must cease arguing with other employees and indulg-
ing in "dirty" remarks, or suffer discharge. He had, he continued,
first thought of discharging four or five of the group, but had decided
to give them another chance. He said that things had run along
peacefully in the plant for 10 years and he hoped they could achieve
"harmony. and peace" without "labor difficulty."
Kuna attempted to complain about the conduct of members of the
Association and Was stopped by Waite, who informed her that such
complaints should be taken up with the Association grievance com-
mittee. Calloway and either Pollard or Mitchell asked how they could
present their side of the story if further complaints were lodged
against them. Waite again referred them to the grievance committee.
a Mabel Veto , Kuna, McBee, Krtturah Mitchell, Julia Pollard, Addle Penrod , Madison,
Calloway, and one, other employee whose name none of the witnesses remembered "Bud"
Waite, Magness , and Gertie Griffith were also present at this rnte'vie-vv. _
23 Madison , Pollard , and Mitchell
'a Waite first testified that the Association grievance committee twice complained to
hum prior- to Sepetember 5 about the conduct of persons working on the second shift lidt
named no i n dividual offenders He also testified that he discussed the situation with Fore-
man Magness a number of times prior to the warning but again no names were mentioned
Later- in the hearing he was asked how'he selected the persons to be warned , if, none had
been named lie then stated that lie believed that the committee gave him the names To
this list , he testified, he added three or four more because "we thought to bring harmony
back up there it would be advisable to warn them too " At a further point, however, be •
again asserted that the committee named no one, a statement which he subsequently
contradicted -
Although Heady, Goodman, Kenney , and Sul Is made complaints to Waite and Magness,
their testimony indicates that none of them named any individual offenders to Waite or
Magness prior to Waite's warning Meadows did not testify with respect to her reports
to Waite and Magness
Waite also testified that he received the additional three or four names from Magness.
Magness, however, testified that lie gave no names to Waite ; that on the day before the
warning Waite brought to him a list of names , which they discussed We find that Waite
did not receive the names of particular offenders either from Magness or from Association
members prior to his warning on September 5
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kuna asked if there would be any discrimination against C. I. O. mem-
bers,when work got slack. Waite replied, "Well, you know the local
union is 75 percent strong and they carry a lot of-weight, and they can
do- a lot of harm to the factory, and they would have to be
considered." 24
On the same day, Henry Kuna, the husband of Eleanor, who had
been sent home on September •3 as the result of an incident discussed
infra, was informed that he was discharged.
Sometime in September, after the Association had notified Waite
that it had secured a majority, and after it had been granted exclusive
recognition, the respondent posted on the bulletin board in the plant a
notice in substance forbidding union discussion, activity, and solicita-
tion on company time and property. Nevertheless, according to the
undisputed testimony of witnesses for both the Association and the
Amalgamated, the respondent permitted the Association to collect
,initiation fees and dues on company time and property during working
-hours. During September and October several notices were posted on
he bulletin 'board stating that initiation fees and/or dues would be
'collected in the office on certain days. On Szptember 17 Earlene Fred-
erick collected Association initiation fees, and on October 9 Nellie
Meadows collected dues, in the office during working hours: 5 During
September and October, Laberta Haley, an office employee, also col-
lected initiation fees and dues for the Association. During the same
period Meadows and other Association representatives collected initia-
tion fees or dues in the plant during working hours.
Waite altered the method of distributing pay checks in order to
facilitate the Association's dues collecting. According to his testi-
mony, "information had come there were a certain few that had not
paid" dues." Forelady Griffith asked him whether the pay checks of
delinquent Association members could be withheld. Waite would not
permit that. Griffith then suggested that the checks be given out in
the office where delinquent members could be dunned, instead of being
distributed to employees at- their work places, as, previously.- This
arrangement Waite permitted.
On September 17, 1941, Mary Roan's pay check was, withheld.
Forelady Griffith "handed [her].a ticket and told [her] that [she]
would have to go down to the office." ' There Roan was informed by
'Martin, an office employee, that, she had been ordered to withhold
Roan's check because she had not paid dues in the Association. Roan
24 These findings are based upon the testimony of Kuna and Veto. In the main their
testimony was corroborated by Waite. Waite was extremely vague as to exactly what
he said about the local being "75 percent strong" Both Kuna and Veto testified that he
made the statement We find their version to be substantially correct.
25 Meadows testified that she was paid by the Association, and not by the Company for
this work.
WELLS-LAMONT-SMITH CORPORATION 1487
protested that she had resigned from the Association and joined the
Amalgamated; had a family to support and would have to have her
check; and asked to be allowed until the next morning to think it
over. Martin then gave Roan her check. Roan inquired whether she
would be discharged for not paying dues in the Association. Martin
said "No." The next day Roan related the incident to Magness, who
told her that there had been a mistake. Roan asked Magness whether
she would be discharged for nonpayment of Association dues. Mag-
ness stated that that had been left up to him, that she would not be
discharged, but advised her to join the Association because it repre-
sented a majority.26
At the meeting at which the respondent accorded it recognition, the
Association submitted a proposed contract providing, inter alia, for a
dues check-off and a "preferential shop.," Norum took the proposed
agreement back to Chicago with him. Sometime during September
either Norum or Waite informed the representatives of the Associa-
tion that the check-off and preferential shop provisions were not ac-
ceptable, and submitted suggestions regarding its revision. Glenn
then redrafted the agreement in accordance with the respondent's
suggestions and the terms were orally agreed upon sometime in
September.
By the agreement the respondent recognized the Association as the
sole bargaining agent of its employees, recognized the principle of
job seniority and undertook to put that principle into operation,
"consistent with the efficient operation of the plant"; agreed not to
discriminate against any employee because of membership in any
lawful organization "so long as the organization's activities are not
carried on during working hours on the premises"; and allowed the
collection of dues by the Association immediately before or after
working hours. Although the contract itself effected no change in
working conditions it provided that negotiations for a new wage
scale should take place on October 9. On the latter date the contract
was signed, and contemporaneously therewith the parties entered into
an oral agreement for "certain" wage increases, which were immedi-
ately put into effect.
B. Conclusions with regard to the Association, and interference,
restraint, and coercion
The avowed purpose behind the formation of the Association was
the desire to forestall unionization of the respondent's plant by na-
tionally affiliated organizations which were active in the community.
2e Magness admitted That Roan asked him whether she would be discharged for non-
payment of Association dues, but denied having advised her to join the Association. We
credit the testimony of Roan, as did the Trial Examiner.
'1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Waite was informed almost immediately by the promoters of the
-Association of their purpose. The activities of Gertie Griffith, and
the presence of Arthur Markham, two of the respondent's supervisory
officials, at the Association meeting some 3 weeks later in the Clark
Theater; indicated the respondent's approval.
On the morning following the theater meeting an organizing cam-
paign on behalf of the Association began to take shape in the plant.
Waite, presented with the alternatives of giving active-laid and sup-
port to a type of labor organization of which he approved, or of
maintaining complete and absolute neutrality and permitting the
employees to make a free selection, chose the former. The theater
meeting had revealed that the larger number of employees seemed to
`favor no organization. They were therefore especially susceptible
to managerial suggestion. Waite thereupon summoned 'a group of
"representative" employees to the recreation room where he spoke to
them on the subject of labor organization, analyzed the various
choices open to the employees, expressed his preference for an "in-
side" union, and derogated the C. I. O. Such conduct could only
have been interpreted by the employees as throwing the prestige,
approval, and support of the respondent behind the organizing cam-
paign undertaken immediately thereafter by the promoters of the.
Association. We find that it was so intended and had 'that - effect.
The assistance of Forelady Griffith, Foreman Markham, and "Bud"
Waite in sending to the recreation room employees whom Holliday
could proselytize made the respondent an active partner in the cam-
paign. The recreation room meeting was followed by extensive and
open circulation of the Association petitions in the plant, admittedly
in violation of rules, but with the acquiescence of the respondent. As
the Trial Examiner found, Waite virtually surrendered control of
the plant to the Association's organizers. Waite's subsequent con-
versation with Madison was clearly intended to discourage member-
ship in the Amalgamated and to encourage membership in the Asso-
ciation, as were the statements made by Markham to McBee and
Calloway, and Magness' advice to Roan.
By the middle of August the Association reported to Waite that a
majority of the employees had signed its petitions. Only then were
the supervisors instructed to maintain a hands-off policy. Earlier
in the month Waite had received notice that the Association was al,-
,ready under attack as a spurious labor organization and the subject
of investigation. Despite that knowledge, and with no assurance
other than the word of the Association that it represented a major-
ity, the respondent proceeded to recognize that organization as the
exclusive bargaining representative of its employees. Such conduct
is incompatible with the respondent's protestations that it acted in
good faith.
WELLS-LAMONT-SMITH CORPORATION 1489
After the previous relaxation of plant rules had served its purpose,
the respondent sought to freeze the situation by enforcing them; and
to that end posted a notice forbidding union activity on company time
or property. Nevertheless, the respondent permitted, and even as-
sisted, the Association to collect dues on company time and property.
The September 5 meeting at which Waite admonished Amalgamated
members was intended to be, and was in fact, a warning to abandon
their dissidencelor be discharged. The respondent 's assertion that nit
was a disciplinary lecture is not consistent with the fhcts : Association
members had "commoted," but were not lectured. Waite admitted
that individuals against whom no complaints had been lodged were
added to the group because "we thought to bring harmony back up
there it would be advisable to warn them too." Waite's assertion that
Magness supplied the additional names is contradicted by Magness.
It is evident , as we have found, that the only reason for the presence
of these persons was that they , like the remainder of the group, were
active in the affairs of the Amalgamated . Waite refused to entertain
grievances of Amalgamated members present at that meeting, and
when asked what forum was available for the presentation of their
side of the story, referred them to the Association grievance com-
mittee. His guarded statement that the strength of the Association
made it . a factor whicli i-had to be considered was, in the light of the
circumstances , no less a threat of discrimination because couched in
studied language . Waite's declaration that the group was free to
join whatever union or church it desired , considered against the back-
ground of interference in which it was cast, did not effectively dissi-
pate that interference . His similar statement at the July 29 meeting
in the recreation room had been amply contradicted by the respond-
ent's subsequent actions. As a profession of neutrality, the declara-
tion was wholly inadequate. -
It is admitted that pay-check distribution was altered at the instiga-
tion of Supervisor Griffith, and with Waite's permission , in order to
assist the Association's dues collecting, and that some pay checks were
withheld as part of that program. The record does not disclose that
the new method of pay-roll distribution has ever been abandoned.
Waite's several expressions of preference for a "local " organiza-
tion, in the light of the circumstances in which they were uttered,
were more than mere statements of opinion . They were a part of a
total program of conduct designed to aid the Association and to
hinder the Amalgamated. We find that the total activities of the
respondent, as set forth above, as well as the discriminatory discharges
of five Amalgamated members, discussed below'27 interfered with,
27 Sec tion III . D, infra
46 tS92-42--%o1 41--94
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restrained, and coerced the respondent's employees in their free, choice
of bargaining representatives, and that Waite's statements of pref-
erence, in this context, had a similar effect. 211
We further find that, by the above-described course of conduct, the
respondent has dominated and interfered with the formation and
administration of the Association and has contributed support thereto,
and has thereby interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
We further find that by each of the following actions; constituting
the elements of an anti-union course of conduct : the anti-union state-
ments of Waite at the recreation-room meeting on July 29, his inter-
rogation of Madison concerning her union activities, his warning to
the Amalgamated members at the September 5 meeting in the recrea-
tion room, the anti-union statements of Markham to McBee, Calloway,
and the other pressers, and Markham's threat that the respondent
would close its plant rather than recognize the C. I. 0., and his warn-
ing of possible discrimination for failure to join the Association, the
respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
C. Other alleged interference, restraint, and coercion
The complaint alleged, among other things, that the respondent
engaged in surveillance of meetings of the Amalgamated, thereby
interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
We find, as did the Trial Examiner, that the evidence is insufficient
to support this allegation. The Amalgamated filed no exceptions to the
Trial Examiner's finding. That portion of the complaint will be dis-
missed.
D. The discharges
The complaint further alleged that from September 3 to October 9,
1941, the respondent laid off or discharged five employees for union
activities : Henry Kuna, Leonard High, Alfred Tumlison, Mabel Veto,
and Ferne Culling. High was reemployed on November 4. The re-
spondent claimed that Kuna was discharged because he was the aggres-
sor in a fight with a fellow employee; High and Tumlison because they
made threats against persons employed in the plant; and Veto and
Culling because they used vulgar language toward and directed slur-
ring remarks at fellow employees, which not only disrupted the work
of the employees immediately concerned, but impaired the efficiency of
the department in which they were employed.
18 N. L. R. B V Virginia Electric cC Power Company, 314 U. S 469
- WELLS-LAMONT-SMITH CORPORATION .1491
A resolution of the issue whether these employees were discharged
because of improper conduct or- because of their union activities re-
quires an examination of the general background against which the
discharges were framed, as well as the particular facts alleged as their
justification. - We have found that the respondent dominated and in-
terfered with the formation and administration of the Association, and
otherwise interfered with, restrained, and coerced its employees in
their right to self-organization. In the latter part of August the re-
spondent recognized the Association as the bargaining representative
of its employees. By that time rivalry between partisans of the Asso-
ciation and members of the Amalgamated had become intense. The
Association grievance committee lodged complaints against "a group
of girls -who belonged to the C. I. 0." A number ,of Amalgamated
members, some of whom admittedly had not been charged with any of-
fense, were promptly warned by Waite, without affording them oppor-
tunity for hearing, that their activities were inviting discharge. For
redress of their own grievances he referred these employees to the As-
sociation grievance committee. The bitter factional situation thus cre-
ated by the respondent's unfair labor practices inevitably resulted in
some degree of disturbance. It is against such background that the dis-
charges occurred in the 6-week period following recognition of the
Association. . -
Henry Kuna-was first employed by the respondent in March 1940 as
a cloth spreader. Six months later he was made a presser and continued
in that work until he was discharged on, September 3, 1941.29 Kuna
attended the meeting at the Clark Theater on July 28, 1941. He was
one of those who stood up when Holliday requested all employees to
'stand who favored an outside union. Foreman Markham was sitting
with'Kuna and his wife, Eleanor Kuna, at the time. Kuna joined the
Amalgamated about July 30. On August 8 he was elected to the organ-
izing committee. Thereafter Kuna regularly wore his union button
at work and outside of working hours solicited members for the Amal-
gamated. He also distributed leaflets in front of -the plant. His wife
became secretary of the Amalgamated.
,On the morning of September 3, about 11 o'clock, Markham, fore-
man of the pressers, notified William Sitton, John Holman, and Kuna
that they would have to lay off that afternoon for half a day because
work was slack. Kuna protested that he had already missed a day
-that week 'and that he. would like to make up the time he had lost 30
Markham replied that it w•as,no longer possible to make up time lost
^ Although , Kune was not informed of his discharge until September 5, he was sent home
on September 3 and the discharge was in effect retroactive to that date.
10 Rune was unable to report for work on that occasion because he could not get his car
started.
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that he had no alternative but to lay off Kuna as it was his turn, i`
After Markham had left the room, Kuna in substance said to Sitton
that when the C. I. O. organized the plant there would be some changes
made. William Stevens, who belonged to the Association and worked
on Kuna's right, overheard the remark. He cursed Klina and the
C. I. O. Kuna's back was to Stevens. According to Kuna, whose
testimony we credit, Stevens said, "Goddam you and the C. I. 0., and
-if you don't like,it why don't you do something about;it." 32 '
Although there is conflict in the testimony as to wliat then occurred,
Kuna's testimony, which we credit, is that when he turned around
Stevens' fist was doubled in a fighting gesture and that Stevens then
lunged toward Kuna and swung at him. They grappled and Stevens
was seized about the head. The two were separated almost immedi-
ately by Magness and Hughart.3d
No blows were struck. Stevens, according to his undisputed testi-
mony, then called Kuna a "son-of-a-bitch." Shortly afterward Mark-
ham returned, obtained Stevens' account of what had occurred, and
sent both men home. Markham then reported the incident to Waite
who instructed him to ascertain who had started the fight. Markham
immediately interviewed Hughart, a member of the Association. The
latter informed Markham that Kuna had, jumped-on Stevens after
Stevens had sworn at the C. I. O. , Markham relayed that information
to Waite, who thereupon instructed Markham to; jet Stevens return to
work in the afternoon. Stevens returned to work at 12: 45 p. in.
That afternoon Kuna appeared at the plant and found Stevens at
work. He immediately sought out Waite who informed him that he
(Waite) would investigate and ascertain who was, at fault. In the
meantime Stevens continued to work. Subsequently Markham ques-
tioned Silvey, another member of the Association, about the fight
and reported to Waite that Silvey held Kuna responsible! On Sep-
tember 5 Kuna was informed by Waite that he had investigated; had
found that Kuna was at fault, and that Kuna was therefore
discharged.34 He added that- Kuna's work had been satisfactory.
31 For the previous 3 weeks it 'bad been the•responde ,nt's practice' . to la,y,, uff-three of the
pressers at a time for half-day intervals during slack periods The three pressers who
alternated with Sitton , Holman , and Kuna in these lay-offs were William Stevens, J A
Silvey , and Richard Hughart Pi for to this incident it had been the respondent ' s practice
to allow Kuna to make up the time he lost
"Stevens testified that all he said was "Hell, the C I 0 can't" before lie was intei-
rupted by Kuna . However , Hughart, one of the respondent ' s witnesses, testified that
Stevens said "To hell with the C I 0 " and that Knna then said something about "tearing
Stevens up ," whereupon Stevens made a remark which Ilughai it could not hear
33 The contrary testimony is that , after Stevens ' t emark , Kuna either reached or lunged
toward Stevens and seized him In the view which we take of the mt ident, however, ,i
determination that Stevens lunged at Kuna is not controlling (lni conclusion with iespect
to Kuna's case would be the same even though we credited the contrary iestnnony
3' Waite testified that in taking this action lie rehed•entirely on \Iaikharn s judgment
'WELLS-I AMIONT-SMITH CORPORATION 1493
Kuna's protests that arguments were frequent in the pressing room
and that he "was getting a raw deal," were of no avail. Although
Markham -interviewed Stevens immediately, Kuna was never ques-
tioned or accorded an opportunity to present his version of the inci-
dent. At no time did Markham question Holman or Sitton, the other
two members of the, Amalgamated, despite the fact that they were in
as-close proximity to, the incident as Hughart and Silvey. Markham's
first answer when asked on cross-examination why he had not inter-
viewed Sitton, who was working at the side of Kuna, was "Why
should IP
Stevens' evident belligerence had involved him in several prior alter-
cations. In the fall of 1940 or the spring of 1941 he engaged in an argu-
ment with a colored employee named Luther King, during which the
two pushed each other around until separated and ordered back to
work by Magness. No punishment was imposed for that affair. For
some time prior to the Kuna incident there had been friction between
Stevens and members of the Amalgamated. Two or 3 weeks before his
dispute with Kuna, Stevens was involved in an altercation with Sitton
during which, according, to Stevens, each called the other a "son-of-a-
bitch." 35 "Kuna-,'on'the•other hand, had never before been involved in
such incidents. Markham's alleged investigation, colored as it was
by his hostility to the Amalgamated, was partisan and one-sided and'
calculated to conceal Stevens' culpability even to the extent of not
according Kuna a hearing in his own defense.
Leonard High-and Alfred Tumlison: Leonard High was employed
as a leather cutter from May 20, 1939, to September 17, 1941, when he
was discharged. He was reemployed on November 4, 1941, and was
still working for the respondent at the time of the hearing. He became
a member of the Amalgamated early in August 1941 and solicited
membership therein. After the August 8 meeting he wore his union
button at work. About a month prior to High's discharge, he dis-
tributed leaflets in 'front of the plant and gave one of the leaflets to
Podany, his foreman.
Alfred Tumlison was also a cutter and a member of the Amalga-
mated. He was discharged at the same time as High and under
similar circumstances. During the,, 3 months immediately, preceding,
their discharge High and Tumlison were partners and worked along-
side each other. Sometime during the first half of August, Tumlison
asked Robert Stevens, treasurer and member of the grievance com-
mittee of the Association, to join the Amalgamated. After August, 8
a Stevens testified that "there was quite a little of that talk " between himself and
Sitton.
1494 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
he wore his union button at work. On October 28, 1941, Tunilison
joined the Navy. He did not testify.36
Sometime in the latter part of August or in early September Waite
received a report from Robert Stevens that High and Tumlison had
stated that "they were tired of their treatment down there [at the
factory] and that they were going to cut their way out of there some
time." Waite's uncontradicted testimony was that he attempted to
track down the source of this rumor, but was unable to -find anyone
who had heard the remark. There is no evidence to support a, finding
that the statement was made.
About September 3 a fresh consignment of "footage" was received
in the cutting room.37 Tumlison and High were working on small
leather,of poor quality and had been for some time past.38 They had
previously complained to Podany that they were being given an
excessive amount of poor quality leather. When the footage was
received, Assistant Foreman Pierce, who had received instructions
from Podany to allot it to the employees as they finished the leather
on which they were working, distributed some of the footage to several
other cutters: Tumlison approached Pierce and asked why he and
High were 'not receiving footage. High was with Tumlison. Owen
Perry, another cutter, was standing nearby. Pierce informed them
of Podany's instruction. Nevertheless, Pierce then weighed out an-
other batch of small leather and gave it to Tumlison and High."'
Pierce testified that as they turned away Tumlison said to High that
somebody was "going to get hell knocked out of him."' Pierce, ac-
cording to his own testimony, attached no significance to the remark
and paid no attention to it 40 High testified that neither he nor Tumli-
son was threatening anybody. Robert Stevens, treasurer of-the Asso-
ciation, promptly reported the remark to Waite.', Waite said, "0. K.,
Bob, I will investigate and see what we can do about it." About 2
weeks passed. On the day of the discharge or the day preceding it,
Waite asked Pierce about the incident. Pierce informed Waite, what
Tumlison had said and added that High had stated that "there were
3° The request of counsel for the Board for permission to take Tumlison 's deposition was
denied by the Trial Examiner on the ground that the deposition was not necessary for
disposition of the case . We have affirmed that ruling for the same reason.
37 Large pieces of leather are called footage. It is easier to cut than small pieces of
leather Although the piece rate is higher on small leather , a cutter earns more working
with footage.
33 This finding is based upon the testimony of High. Pierce , assistant foreman, testified
that this condition was general throughout the cutting room.
39 These findings are based upon the uncontradieted testimony of Pierce No explanation
was offered by Pierce foi this apparent disciiminatiori and departure from Podany's
instructions. • -
40 Pierce testified , "He probably was talking to High and I never looked up." So far. as,
be was concerned , that was the end of the incident . He did not report it to Podany.
41 It is not disclosed how Stevens heard about the statement . The testimony of both
Pierce and Perry indicates that neither of them reported the incident to Stevens.
WELLS-LAMONT-SMITH CORPORATION 1495
too many of them." Waite then consulted Podany, who knew nothing
whatever' about the incident. On September 17 Waite summoned High*
and Tumlison, stated in substance that he could not have anybody
working for him who threatened other employees, and handed them,
their checks. They protested that they had not threatened anyone.-
High asked what threats they had allegedly made, the names of the
accusers, and an opportunity to disprove the charges. Waite refused.
High and Tumlison then left the factory but returned in the afternoon
for another talk with Waite and, as High testified, to learn "why we
got the deal we did." Waite informed High that it was none of his
"damned business" who reported the statements.
On November 3, 1941, High was informed by an official of the State
Employment Service that Waite wanted him to return to work. He
was reinstated the next day. High's testimony, which we credit, as
did the Trial Examiner, is that on returning to work he was told by
Waite that it had been ascertained that he had not made any remark,
and that "as far as unions [were] concerned just drop it and go on
back down there and he would treat [High] as one of the boys."
High asked if Waite was hiring him back "in order to give [him]
another `dirty deal'." Waite replied, "No, sir." He "would be treated
as one of the boys ... it might be tough going for a few days because
some of the boys did not want [High] to come back .1142
At the time that Stevens reported the alleged incident to Waite,
there was intense hostility between members of the Association and
those. of the Amalgamated. Tumlison's and High's affiliations were
known td the respondent. Podany knew nothing of the reported'
remark. Pierce attached no significance to it-even to the extent of
not informing Podany. No names were mentioned. Pierce's testi-
mony indicates that he did not regard the declaration as applicable
to himself. High and Tumlison made no further complaints or al-
leged threats. Waite knew before he discharged the men that High
had not made the alleged remark. No issue was created until several
weeks after the incident had taken place. We think it evident that,
had it not been for Stevens' rather obvious attempts to foment
trouble, the incident would have passed unnoticed.43 High's request
for an opportunity to disprove that any threats had been made was
summarily refused.
Mabel Veto was employed as a leather Gunn cut closer from some-
time in 1939 until October 8, 1941, the date of her discharge, except
for a period in 1940 when she was laid off. She joined the Amalga-
41 When High and Tumlison were discharged only 0 or 7 of a total of 40 cutters belonged
to the Amalgamated The remainder were members of the Association.
43 The conclusion is inescapable, from the zeal of Stevens and the Association grievance
committee in reporting alleged misconduct,. that their purpose was to harass the Amalga-
mated.
1496 _ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mated on August 1, 1941, and was elected a member of the organiz-
ing committee on August 8. Veto solicited six or seven employees for
membership in the Amalgamated and obtained the membership of
three. She wore a union button at the plant and passed out hand-
bills in front of the factory. She refused to join the Association at
the, beginning of that organization's membership, campaign.
Veto was one of the nine members of the Amalgamated who, on
September 5, were threatened by Waite with discharge unless they
ceased their union activity and their alleged indulgence in vulgar
remarks. About 2 weeks thereafter Nellie Meadows, an officer of the
Association and chairman of its grievance committee, reported to
Waite that Veto was making "dirty and sarcastic" remarks, but she
did not state, according to Waite's testimony, what Veto had al-
legedly said. On October 6 or i, Magness moved some leather stitch-
ers from the second shaft to other positions. He testified that the
reason for the shift was to reduce commotion caused by friction
among the girls. On October 8, Veto, who had been transferred to
another shaft in the move, had trouble with her machine. She be-
came upset because of her inability to turn out good work, and burst
into tears. 'Marjorie Surls and Berna Silvey, both Association mem-
bers, were amused and laughed at Veto's distress. According to
Surls, Ferne Culling called to Veto, "Mabel, your crying must be
awful funny, they have been laughing at you all afternoon." Surls
told Culling to mind her own business. Veto then allegedly made a
vulgar remark. Meadows reported to Waite that Veto had made a
"dirty" remark but did not divulge what Veto had said.
Without any attempt to ascertain the specific remark, and with no
investigation whatever of the truth of the report, or the circum-
stances which had provoked it, Waite sent for Veto and summarily
discharged her. She was a good worker, he told her, but her deport-
ment was unsatisfactory. Veto replied that she did not know that
she was still in school, took her check, and departed. She was not
informed what particular delinquency she had been charged with
nor asked for an explanation.
Ferne Culling worked continuously as a leather Gunn cut closer
from May 1939-until her discharge on October. 9, 1941. She was con-
sidered one of the best leather stitchers in the respondent's employ.
On some occasions Culling was used as an instructor to teach new girls
the use of their machines and assist them to achieve the minimum
piece-rate production. Counsel for the respondent stated on the record
that Culling was discharged because of conduct which interfered
with the general efficiency of the department and not because of any
personal inefficiency.
Culling was one of the first of the respondent's employees to join
the Amalgamated, began to wear a union button about August 1, and
WELLS-LAMONT-SMITH CORPORATION ,1497
distributed handbills in front of the plant. She also refused to join
the Association. Culling worked on the second shaft. She was absent
because of illness on September 5, the day on which Waite warned the
Amalgamated members that their activities were inviting discharge:
Culling was the only member of the Amalgamated employed on the
second shaft who did not attend that meeting.
On the day following Veto's discharge Culling asked Surls why she
had laughed at Mabel Veto on the day before. Surls replied that she
"had not been laughing at Mabel, and if [she] had been laughing at
anybody [she] would have been laughing at [Veto] . .." Culling
thereupon said "Boo." Surls retaliated by sticking out her tongue at
Culling. Culling remarked that Surls looked cute, and that she wished
she had -a, camera with -which to take Surls' picture. Culling stated
that Surls had lied about Veto and thus caused the latter's discharge 44
According to Culling's undenied testimony, Surls replied, "you will
see what you will get for this," left her work and reported the incident
to Magness. A few minutes thereafter Gertie Griffith informed Cull-
ing that she was wanted in the office. There Culling was discharged
by Waite who told her that she was one of the best operators they
had, but that he had to let her go because her deportment was bad.
Culling attempted to give an explanation but Waite refused to listen.
On her way out of the office Bud Waite informed Culling that she
was being discharged in order to restore peace and harmony in the
plant. Culling had never received a reprimand for misconduct dur-
ing her entire period of employment. She was not informed what'
particular delinquency she had been charged with.
The testimony is undisputed, and we find, that prior to July 29 it
was common practice for employees to talk, laugh, whistle, and relate
"dirty" stories while at work. Although Magness testified that' con-
duct of this nature increased after July 29 we find no reason to attribute
that change exclusively to members of the Amalgamated. - Magness'
and Veto's testimony indicates that Association members also con-
tributed. We so find.
E. Conclu..ions with respect to the discharges -
It is apparent that all the discharges were the result of friction
created by factional and personal feeling between the members of the
Association and the Amalgamated . The respondent urges that dis-
turbances reduced efficiency iii the stitching department . If such a,
situation existed the respondent 's conduct is in large part responsible.
It had provoked a factional situation by encouragement and support
of and favoritism toward the Association , and aggravated it by re-
"These findings are based upon the uncontroverted testimon y of Surls
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pression of the Amalgamated under various guises, one of them a
disciplinary lecture which was in reality a warning to the Amalga-
mated members to abandon their dissidence or be discharged, and by'
Waite's categorial refusal to consider grievances of the Amalgamated
group-or even permit them to defend themselves. Having provoked
the disturbances, the respondent cannot use them as a pretext for'
discharge.
Except in the case of Kuna, the discharges were all predicated upon
complaints of the Association's grievance, committee, its officers, or its
members. No disciplinary action with respect to the disturbances was
taken until after the Association had become entrenched by reason of
the respondent's interference, restraint, and coercion, and then only
against members of the Amalgamated. The complaints of the Asso-
ciation were always taken at face value; no attempt was made to ascer-
tain whether they were justified, or whether there had been provocative
conduct. There was no evidence whatever of misconduct as to High.
With respect to Veto and Culling, Waite's only information, and that
supplied by the Association, was that Veto and Culling had made
vulgar, obscene, or sarcastic remarks. Kuna, Veto, and Culling had
all been provoked by Association members. Stevens' remark, which
precipitated his altercation with Kuna, was the identical type of con-
duct which Waite had warned Kuna's wife and other Amalgamated
members- would result in their discharge. The ironic circumstance
that Kuna, the victim of the remark, was discharged, while Stevens;
the author of it, lost an hour's work, provides the explanation for all
the respondent's ambiguous actions and declarations : they were in-
tended, not to restore discipline, but to discourage opposition to the
Association.
The most marked feature of the discharge cases is that in every one
of them the employee was discharged without hearing. Waite un-
equivocally refused to permit High, Tumlison, and Culling to make a
defense. In the case of Kuna the alleged investigation was confined to
partisans of Stevens; in that of Tumlison and High an issue was cre-
ated where none existed. With respect to Veto and Culling there was
not even the semblance of an investigation. The Association grievance
committee became virtually a plant police force whose unsupported
accusations 'constituted sufficient' ground for discharge. - The dis-
charges were all of a piece and were designed to placate Association
officials who desired the removal of active Amalgamated members, and
to buttress the position of the Association. They were part of the re-
spondent's plan to give aid and support to the Association.
We are convinced and find from the foregoing, as did the Trial
Examiner, that the respondent seized upon the altercation between
Kuna and Stevens and upon the complaints of Association .members
with respect to the other four employees as pretexts in order to rid it-
. , WELLS-LAMONT-SMITH CORPORATION 1499
self of members of the Amalgamated. Upon the entire record we find
that the respondent discharged Duna, High, Tumlison, Veto, and Cull-
ing because of their membership and activity in the Amalgamated
and their opposition to the Association, thereby 'discriminating in re-
gard to, their hire and tenure of, employment, discouraging-member-
ship in the Amalgamated, encouraging membership in the Association,
and interefering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in.Section 7 of the Act. -
IV. THE EFFECT OF THE UNFAIR LAEOR PRACTICES UPON COMMERCE
We find that 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
Having found that the respondent has engaged in unfair labor prac-
tices within the meaning of, the Acts. we must order the respondent,
pursuant to the mandate of Section 10 (c), to cease and desist there-
from. We shall also order the respondent to take certain affirmative
action designed to effectuate the policies of the Act.
We have found that the respondent dominated and interfered with
the formation and administration of, and contributed support to, the
Association. We further find that the effects and consequences of the
respondent's domination, interference, and support constitute obsta-
cles to the free exercise by its employees of the rights guaranteed in
Section 7 of the Act. Accordingly, we shall order the respondent to
withdraw all recognition from the Association as the representative
of any of its employees for the, purpose of dealing with the respond-
ent concerning grievances, labor disputes, wages, rates of ,pay, hours
of work, or other conditions of employment, and completely to dis-
establish the Association as such representative. Since the contract
of October 9, 1941, between the respondent and the Association em-
bodies recognition of this organization as such representative and
represents the fruit of the respondent's unfair labor practices and a
device by which to perpetuate their effect, we shall order the respond-
ent to cease and desist from giving effect to this or any other agree-
ment wtih that organization in -respect to rates of pay, wages, hours
of work, or other conditions of employment. Nothing in our Order,
however', shall be taken to require the respondent to vary those wage,
hour, and other substantative features of its relations with the em-
ployees themselves which the respondent may have established in
1500 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
conformity with this contract as extended, renewed, modified, supple-
mented, or superseded." -
Since we have found that the respondent has discriminated in re-
gard to the hire and tenure of employment of Henry Kuna, Mabel-
Veto, and Feine Culling, we 'shall order that said `eniployees- be re-
instated to their former or substantially equivalent positions without
prejudice to their seniority and other rights and privileges. We shall
also order the respondent to make whole Henry Kuna, Mabel Veto,
and Ferne Culling for any loss of pay they have suffered by reason
of the discrimination against them, by payment to each of them of a
sum of money equal to the amount he or she would normally have
earned as wages from the date of the discrimination to the date of
the offer of reinstatement less his or her net earnings 41, during said
period. We have also found that. the respondent. discriminated
against Leonard High and Alfred Tumlison. In the case of High,
we shall order the respondent to make him whole for any loss of pay
he suffered by reason of the discrimination against him by payment to
him of a sum of money equal to the amount he would normally have
earned as wages from September 17 until November 4, 1941, the date
of his reemployment, less his net earnings 49 during said period.
We shall also order the respondent, upon application by Tumlison
within forty (40) days after his discharge from the armed forces of
the United States, to offer him reinstatement to his former or a--sub-
stantially equivalent position without prejudice to his seniority or
other rights and privileges.-50 We shall further order the respondent
to make Tumlison whole for any loss of earnings he may have suffered
by reason of the respondent's discrimination against him by payment
to him of a sum of money equal to the amount he would normally
have earned as wages during the"following'peridds (1')',between the
date of his discriminatory discharge and the date of his enlistment;
and (2) between a date five (5) days after Tumlison's timely appli-
cation for reinstatement and the date of the offer of reinstatement
by the respondent; less his net earnings 51 during those periods.
97 National Licorice Co v N L. R. B , 309 U . S 350 , N L It B V Greenbaum Tanning
Co, 110 F. (2d) 944 (C. C. A 7), cert den. 311 U. S 662.
48 By "net earnings " is meant earnings less expenses , such as foi transportation, room,
and board , incurred by an employee in conection with obtaining work and working else-
where than for-the respondent which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union Local 2590, 8 N L R B 440 Monies received
for work performed upon Federal State , county, municipal , or other work -relief piojects
shall be considered as earnings See Republic Steel Corporation Y N. L. R , B, 311 U. S. T.
49 See footnote 48, supra.
° See Matter- of The Pederbush Co , Inc Lind United paper Workers, Local 292, affiliated
with the United Paper, Envelope and Toy Workers ' International Union, C I. 0., 34 N. L.
R. B. 539.
5t See footnote 48, supra
WELLS-LAMONT-SMITH CORPORATION 1501
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 and Louisiana Glove
Workers Association 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 the Association and contributing support to it, the respond-
ent.has engaged in and'is engaging iii unfair labor, practices, within
the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employment
of Henry Kuna, Leonard High, Alfred Tumlison, -Mabel Veto, and
Ferne Culling, thereby discouraging membership in the Amalgamated,
the respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning 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 re-
spondent 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 coi â–º}n^r e, )yy thin the meaning of Section 2x,(6) and (7) of
the Act.
6. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (1) of the Act by engaging in surveillance of
meetings of the Amalgamated.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law iuid pursuant to Section 10'.,(c) of the National Labor Relations
Act, the 'National Labor Relations Board hereby orders that the re-
spondent; Wells-Lamont-Srnith Corporation, Louisiana, Missouri, and
its officers, agents, successors, and assigns, shall
1. Cease and desist from :
(a) In any manner dominating or interfering with the administra-
tion of Louisiana Glove Workers Association or the formation or ad-
ministration of any other labor organization of its employees. or con-
tributing support to said Association or to any other labor organization
of its employees;
(b) Recognizing Louisiana Glove Workers Association as the repre-
sentative of any of its employees for the purpose of dealing with the
respondent concerning grievances, labor disputes, wages,,.rates of pay,
hours of work, or other conditions of employment;
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Giving effect to or performing any contract or arrangement
with Louisiana Glove Workers Association or any modification, re-
newal , or extension thereof;
(d) Discouraging membership in Amalgamated Clothing Workers
of America or any other labor organization of its employees by dis-
criminating in regard to the hire-or tenure of employment of its
employees or any term or condition of their employment.
(e) In any 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 in Section 7 of the National Labor Re-
lations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:,
(a) Withdraw all recognition from Louisiana Glove Workers Asso-
ciation 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 any other condition of
employment, and completely disestablish said Louisiana Glove Work-
ers Association as such representative;
(b) Offer to Henry Kuna, Mabel Veto, and Ferne Culling imme-
diate and full reinstatement to their former or substantially equiva-
lent positions without prejudice to their seniority and other rights and
privileges ;
(c) Make whole Henry Kuna, Mabel Veto, and Ferne Culling for
any loss of pay they may have suffered by reason of the respondent's
discrimination against them, by, payment to each of them of a sum
of money equal to that which he or she normally would have earned
during the period from the date of such discrimination against him
,or her to the date of the 'offer of reinstatement less his or her net
earnings during such period;
(d) Make whole Leonard'High for any loss of pay he may have
suffered by reason of the respondent's, discrimination against him by
payment to him of a sum of money equal to that which he normally
would have earned as wages during the period from September 17
to November 4, 1941, less his net earnings during said period;
(e) Upon application by Alfred Tumlison' within forty (40) days
after his discharge from the armed forces of the United States, offer
him immediate and full reinstatement to his former or a substntially
equivalent position,witliout prejudice to his seniority or other rights
and privileges;" ' " $ 1
(f) Make whole Alfred! Tumlison for" any loss of pay he may have
suffered by reason of the respondent's discrimination against him by
WELLS-LAMONT-SMITH CORPORATION 1503
the-payment to him of a sum of money equal to the amount he would
normally have earned as wages during the following periods: (1)
between the date of his discharge by the respondent and the date of
his enlistment, October 28, 1941; and (2) between the date five (5)
days after Tumlison's timely 52 application for reinstatement, if any,
and the date of offer of reinstatement by the respondent, less his, net
earnings during those periods;
(g) ' Post immediately in conspicuous places throughout its plant
and maintain for a period of at least sixty (60) consecutive days
notices to its employees stating (1) that the respondent will not engage
in the conduct' from which it is ordered to cease and desist in para-
graphs 1 (a), (b), (c), (d), and (e) of this Order; (2) that the re-
spondent will take the affirmative action set forth in paragraphs 2 (a),
(b), (c), (d), (e), and (f) of this Order; and (3) that the respondent's
• employees are free to become or remain members of Amalgamated
Clothing Workers of America, and that the respondent will not dis-
• criminate against any employee because of his membership in or
activity on'behalf of that organization;
(h) Notify the Regional Director for the Fourteenth Region in
writing within ten (10) days from the receipt of this Order what
steps the respondent has taken to comply herewith; and
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the respondent engaged in surveillance
of meetings of the Amalgamated.
12 As provided in paragraph 2 (e) of this Order.