Algonquin Printing Co.

National Labor Relations Board - Board Decisions

Mar 4, 1936

1 N.L.R.B. 264 (N.L.R.B. 1936)

In the Matter of ALGONQUIN PRINTING COMPANY and UNITED
TEXTILE WORKERS OF AMERICA, LOCAL No. 1044
Case No. C-7.-Decided March 4, 1936
Textile Dyeing , Printing and Finishing Industry-Interference , Restraint or
Coercion: expressed opposition to labor organization-Discrimuination: non-
reinstatement following temporary shut-down-Employee Status : during
temporary shut-down-Reinstatement Ordered-Back Pay: awarded.
Mr. Ralph H. Cahouet for the Board.
Mr. Harold S. R. Buffinton and Mr. Ray C. Westgate , of Fall
River , Mass., for respondent.
Mr. Jacob Minkin , of New Bedford , Mass., for the Union.
Mr. Louis L. Jaffe, of counsel to the Board.
DECISION
STATEMENT OF CASE
On October 11, 1935, Local No. 1044, United Textile Workers of
America, hereinafter called the Union, filed with the Regional Di-
rector for the First Region a charge that the Algonquin Printing
Company, located in Fall River, Massachusetts, had engaged in and
was engaging in unfair labor practices within the meaning of Sec-
tion 8, subdivisions (1) and (3) of the National Labor Relations
Act, hereinafter called the Act. On November 19, 1935, the Board
issued a complaint against the Algonquin Printing Company, herein-
after referred to as the respondent, said complaint being signed by
the Regional Director for the First Region and alleging that the
respondent had committed unfair labor practices affecting commerce
within the meaning of Section 8, subdivisions (1) and (3), and
Section 2, subdivisions (6) and (7) of the Act. In respect to the
unfair labor practices the complaint alleged in substance that the
respondent refused to employ Lauretta Rawston and Manuel
Madeiros, on August 20, 1935 and August 24, 1935, respectively, for
the reason that each of them joined and assisted the Union; that
such refusal was intended to discourage membership in the Union ;
and that such acts constituted unfair labor practices within the
meaning of Section 8 , subdivisions ( 1) and (3).
264
DECISIONS AND ORDERS 265
The complaint and accompanying notice of hearing were served
on respondent in accordance with Article V of National Labor Re-
lations Board Rules and Regulations-Series 1.
On November 25, 1935, the respondent filed an answer admitting
that it had refused to employ Lauretta Rawston on August 20, 1935,
and Manuel Madeiros on August 24, 1935, but denying that the re-
fusal was because of their union activity. The respondent alleged
that its reason for the refusal was a lack of work.
Commencing on December 9, 1935, a hearing was held at Fall
River, Massachusetts, by William R. Walsh, sitting as Trial Ex-
aminer, and testimony was taken. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues, was afforded to all parties. The respondent
moved to dismiss the complaint on the grounds that the National
Labor Relations Act is not a regulation of commerce under Article
I, Section 8, Clause 3 of the Constitution of the United States, and
that the Act is in violation of the Tenth Amendment to the Consti-
tution of the United States. The Trial Examiner reserved decision
on the motion to dismiss; the motion to dismiss is hereby denied.
Thereafter the Board, acting pursuant to Section 35, Article II of
its Rules and Regulations, directed that the proceedings be trans-
ferred to and continued before it. A further hearing was held upon
due notice on December 21, 1935, at Fall River, Massachusetts, by
Daniel M. Lyons, acting as Trial Examiner, at which time and place
further evidence was taken.
Upon the record in the case, the stenographic transcript of the
hearing, and all the evidence, including oral testimony, documents
and other evidence offered and received at the hearing, the Board
makes the following :
FINDINGS Or FACT
1. Algonquin Printing Company. The respondent is a Massa-
chusetts corporation engaged in the printing of cotton cloth and em-
ploys approximately 440 persons. Part of the cloth printed by the
respondent is printed against immediate order and shipped out when
finished ; part is held as stock for three or four weeks. Its normal
supply of material on hand is sufficient to operate the plant from
two to four weeks.
In the first 11 months of 1935 the respondent received for print-
ing 23,786,000 yards of cotton cloth, over 99% of which was from
out of state. In the same period it printed and shipped out 20,-
685,000 yards of cloth, over 83% of which was sent out of state. Of
the total amount printed in 1935, 18,498,722 yards were printed for
266 NATIONAL LABOR RELATIONS BOARD
respondent's own account; the remainder, 2,186 278 yards, was printed
for firms located in New York and Chicago; these firms shipped
their own materials to the respondent's plant, the respondent printed
the cloth and returned it to the firms for whom it had done the
printing. This jobbing work is done quickly, the materials being
in the plant no more than two or three weeks. The chemicals and
bleaches, some $370,000 per year, are bought in Providence, Rhode
Island.
We find that the operations of the respondent constitute a con-
tinuous flow of trade, traffic and commerce among the several states.
2. Relations Between the Respondent and the Union. The Union
is a local of the United Textile Workers of America and is a labor
organization of textile workers. The Union was organized in
August, 1933. Textile workers in various mills in Fall River are
eligible for membership. Very shortly after its formation the Union
secured a membership of about 80% of the workers in the respond-
ent's plant and continues to have that membership. The Union and
the respondent, through its superintendent, Mr. Harley, came to an
oral understanding on the method to be used in adjusting grievances.
Under this arrangement the Union was to have a steward in each
department.of the plant who would take up grievances with the fore-
man of the department. If the steward was unable to settle a
grievance, he would report to the Shop Chairman. The Shop Chair-
man would talk with the foreman of the department in question.
If he did not succeed with the foreman, he would talk with the super-
intendent. Failing there, he would place the matter in the hands of
the Union's business agent.
In April, 1934, there was a strike in the plant. The duration of
the strike does not appear from the record. In September, 1934,
the plant was closed as a result of the general strike throughout the
textile industry. Shortly thereafter the Union members walked out
of the plant for one day as a protest against the employment of six
or seven workers who had continued working during the general
strike. These six or seven men had been led by one Mahoney, who,
prior to the general strike, had been a Union member and who
shortly thereafter sought to form a union restricted to plant mem-
bers. This attempt at organization seems to have come to nothing.
In January, 1935, Thomas Joyce became superintendent of the
Algonquin plant. He refused to deal with the Union officials in
respect to the settlement of disputes. In May the Union brought a
case of alleged discharge for union activity before the Textile Labor
Relations Board. About this time the National Industrial Recovery
Act was held unconstitutional, and the Textile Board did not render
a decision in that case. Mr. Jennings, the treasurer of the respond-
ent, admitted on cross-examination that he resented the difficulties
DECISIONS AND ORDERS 267
caused by union activity, that his attitude toward the Union and
its officials was not a friendly one, that he was more friendly toward
those workers who had continued at work during the general strike,
that the Union officials were more responsible than the rank and file
for employee dissatisfaction, that he had expressed resentment to Mr.
Bishop, the Union's business agent, both in connection with the
Union's appeal to the Textile Labor Relations Board and with other
activities of Mr. Bishop among the employees.
3. Manuel Madeiros. Mr. Madeiros had worked for the respond-
ent since 1921, with the exception of two three-months intervals. He
worked for two years at various jobs, earning at first $14.00 and later
$16.00 per week, until finally he was promoted to the job of back-
tender at increased pay. He worked as back-tender until July 19,
1935. His immediate foreman testified that his work was as satis-
factory as that of any other back-tender, and there is no evidence or
suggestion to the contrary.
Madeiros was known as a vigorous Union officer. He joined the
Union in August, 1933. He became a member of the executive board.
In December, 1933, he was made Shop Chairman; he continued in
this position as long as he was employed by the respondent. During
his incumbency he presented 75 to 100 grievances to the manage-
ment; many of them he carried to the superintendent. In June, 1935,
Madeiros was elected vice-president of the Union to fill an unexpired
term; in November he was elected vice-president for a full term. He
became thereby the highest ranking Union officer in the plant, the
president of the Union being employed in another plant. Madeiros
was the spearhead of Union activity in the respondent's plant. He
did not limit himself to the formal matter of presenting grievances.
When Mahoney began to organize a plant union, Madeiros protested.
On June 17, 1935, the plant was shut down. Final liquidation of
the respondent was being seriously considered: The respondent had
(and still has) 15 printing machines available for use in its plant.
Each machine in use is manned by a printer. Each printer has a
a back-tender.to assist him in the operation of the machine. In
addition, nine or more spare hands would be carried if all 15 ma-
chines were in use. At the time of the shutdown there were 14
printers, 15 back-tenders (one not working) and 11 spare hands
carried on the payrolls. The plant reopened for the two weeks end-
ing July 13 and July 20, 1935. In the first week there were em-
ployed 8 printers, 8 back-tenders and 4 spare hands; in the second
there were 6 printers, only 5 back-tenders and 4 spare hands. Mr.
Madeiros was employed the first week but not the second; he was
told that it was his turn to loaf. The plant was reopened again for
the week ending August 24, 1935, and, at the date of the hearing was
still running. In the week of August 24th there were 8 printers, 8
268 NATIONAL LABOR RELATIONS BOARD
back-tenders and 7 spare hands. In the following week there were-
10 printers, 12 back-tenders and 7 spare hands. The 2 extra back-
tenders were apparently used as spare hands. The following week
there were 12 printers, 13 back-tenders (one was working as a spare
hand) and 7 spare hands (exclusive of the back-tender working as
such).
Mr. Madeiros applied for work the day of the reopening in August,
to Mr. Blake, a sub-foreman in the printing department (known as-
a second hand) who was taking the applications of the back-tenders,
and spare hands. Blake told him : "I haven't got you on the list.
You had better see the boss." "The boss" was Mr. Snell, foreman of
the printing department. Mr. Snell told Madeiros : "I haven't got
anything for you, I am carrying out my orders from the office." A
week later Madeiros again presented himself to Snell and was given
the same answer. About three weeks after the plant reopened,.
Bishop, the business agent of the Union, spoke to Snell on behalf of
Madeiros. Snell told him that he had orders not to reemploy
Madeiros. Bishop spoke to Jennings, the respondent's treasurer, re-
questing him to stagger the work so that Madeiros and Lauretta
Rawston might be reemployed. Jennings replied that they no longer
cared to stagger the work.
Mr. Blake, the second hand, testified that when the plant reopened
he employed all of the old back-tenders except Madeiros, ten for the.
position of back-tender, four as spare hands. When Madeiros ar-
rived, Blake testified, all of the jobs he had to give out had been
filled. Later those back-tenders working as spare hands were shifted
to their regular positions and he "called back" the regular spare hands
to fill the vacancies. Even if Blake's recollection of the facts was
correct, it would still cause very real suspicion of discrimination
against Madeiros : the respondent employs every available back-
tender except Madeiros, even supplanting four of the regular spare
hands to make jobs for them ;'more men are "called back"; Madeiros,
has, in the interim, again sought employment, but still no work can
be found for him ; instead the regular spare hands are now used.
The facts, however, as revealed by the respondent's employment
records, show a somewhat different situation. In the first week of the
reopening only eight of the back-tenders appear on the rolls. They
were apparently all used as back-tenders since there were eight print-
ers employed that week. The following week 12 of the back-tenders
appear on the rolls, 2 being used, apparently, as spare hands, since
there are only 10 printers. Five of these were men not employed
in the previous week, one from the previous week having dropped
out for one week. In the following week there are 13 back-tenders,
one serving as spare hand. One of the regular back-tenders had
DECISIONS AND ORDERS 269
been employed elsewhere, but in the week ending October 19 we find
him on the payroll, first as a spare hand, then in his regular position.
At later periods some one or other of the back-tenders serves as spare
hand or truckman.
The situation then is this : Mr. Madeiros presents himself during
the week ending August 24th and is told there is no work. He re-
turns the next week ; again he is told there is no work. Yet in that
week all of the available remaining 5 back-tenders are reemployed,
work being made for two or three of them as spare hands. And most
significant of all, in that same week there appears on the rolls a new
spare hand, J. Robello, who has never appeared there at all. Thus
it appears that with the single and persistent exception of Madeiros,
the respondent has reemployed all of the old back-tenders, and that
when they could not be used as back-tenders, has found other work
for them. In a week when Madeiros was applying for employment
and when two of his fellow back-tenders were taken on as spare
hands, an entirely new spare hand was taken; yet there was no work
for Madeiros.
. Mr. Madeiros was a good worker. His seniority was superior to
at least four of the back-tenders and most of the spare hands. Mr.
Jennings testified that he bore no ill feeling against Madeiros. Yet,
with respect to employment, the discrimination against him is beyond
doubt, and this discrimination is explicable only on the ground of
his prominence in Union activity. It has already been shown above
that the respondent harbored resentment against the Union. Made-
iros, the Shop Chairman, was the constant and visible symbol of the
Union and its claims.
The respondent maintains that the work of Madeiros did not
cease as a consequence of a current labor dispute but by reason of
the closing of the plant due to depressed business conditions. The
intended implication is that under those circumstances a refusal to
employ him at a later date cannot be a violation of the Act. This
defense is in line with the statement which Bishop testified Mr.
Jennings made to him, that, "everyone was hired from week to week
and that they didn't have to take everyone back". The respondent
no doubt has in mind the definition of an employee under Section 2,
subdivision (3), providing that the term "employee" shall include
one whose work has ceased as a consequence of a current labor dis-
pute. But Section 8, subdivision (3) in forbidding discrimination
in employment, is not limited to those who are employees at the
time of the discrimination. It forbids discrimination in regard "to
hire" generally. The purpose of the provision is, it is true, to pro-
tect employees in their right to self-organization. But surely a re-
fusal by an employer to rehire a former employee because of his
270 NATIONAL LABOR RELATIONS, BOARD
union activities which are well known to his former fellow workers
-discourages the latter and so restrains them in the exercise of their
right to self-organization.
4. Lauretta IRawston. Mrs. Rawston was a "doubler". Doubling
is the process of folding the cloth double and winding it on a, card-
board spool for shipping. She had been employed by the respondent
for 18 years, off and on. She was out five years because of sickness,
and was laid off in 1933 or 1934 by an efficiency expert because she
was a married woman. Before the shutdown in June, eight doublers
were employed. During the temporary operations in July, Mrs.
Rawston was not employed. When the plant was reopened five
,of the doublers were reemployed. Two did not apply, and Mrs.
Rawston on applying was told that she would be sent for when she
was wanted. She has never been sent for, nor has she been reem-
ployed. Two new doublers have since been employed.
Mrs. Rawston joined the Union in January, 1934. Shortly after-
-wards she became a shop steward. In the early part of 1935 she
-was elected financial secretary to fill an unexpired term; and in the
fall was elected financial secretary for a full term.
The respondent claims that Mrs. Rawston was refused employment
because she was not efficient. On April 1, 1935, the respondent
employed Thomas Riley as overseer of packing. Mr. Riley inaugu-
rated a policy of taking day-to-day records of the output of the
doublers. He noted the number of "short" and "regular" pieces of
cloth handled by each doubler. Pieces vary from 10 to 40 yards.
Those between 10 and 20 yards are known as short pieces; over 20
yards as regular pieces. Regular pieces average 30 yards. The short
pieces are more easily and quickly handled than the regular pieces.
On the basis of these records, the respondent maintains that Mrs.
Rawston was among the three most inefficient of the doublers, and
points out that none of these three has been reemployed. This argu-
ment is offered to show that the verdict of inefficiency was not de-
vised solely to keep out Mrs. Rawston. The other two girls, how-
ever, did not, apply for reemployment. Further doubt is cast on
this argument by the fact that, even accepting the records at their
full value, one of the girls, Dais, has a higher total for the period
,of the records than at least one of those who was taken back. It thus
still remains to be explained that of the whole group of doublers
Mrs. Rawston alone was refused reemployment.
We have studied these production records carefully and we have
•come to the conclusion that they are so inadequate and show a situa-
tion so peculiar that the respondent could not from the records have
formed any opinon of Mrs. Rawston's efficiency. The respondent's
judgment as to her efficiency is based on the fact that she has han-
dclled the next to the smallest total number of pieces. The records
DECISIONS AND ORDERS 271
cover a period of nine weeks. The number of pieces do not, at
least over so short a period, provide a common and constant factor
of comparison. The pieces vary from 10 to 40 yards; the amount
of time consumed in handling these pieces varies, the shorter the piece,
the less the time consumed. The respondent has made no study of the
amount or rate of -variation. The respondent has made no time
analysis of this or any other element of work involved in the dou-
bling process. The respondent has never on the basis of experiment
-or, experience} established a standard of expectable performance
based on actual elements of work content. Mr. Riley testified that
he had decided on a minimum of 400 long or 500 short pieces per
day. Yet, during the nine weeks when the records were kept, no
worker ever handled anything like that number.
Mr. Riley testified that the existence of these undefined and un--
analyzed variations did not impair the usefulness and reliability of
the record, because on the average all workers would receive an equal
number of short and long pieces. If it is the normal practice in the,
plant to even up the long and short pieces among all the workers,
then the facts shown by the records are surprising indeed; for it
appears that of the total pieces done by each of three workers, Mrs.
Rawston being one of them, 88%, 88.6% and 88.9%, respectively,
were long pieces-the highest percentage is Mrs. Rawston's; whereas
the percentage of long pieces for the six other workers is 59, 43.4, 51.2,
46.8, 47.6 and 40.1, respectively. It should be further pointed out
that the three workers having the highest percentage of long pieced
were on all of the nine weekly record sheets listed first in the order :
Wilcox, M. Rogers and Rawston, reading left to right. From these
-facts it is clear that these three workers were deliberately being
given one kind of work, the other six another. Why this was so we
do not know. It may be because these were the oldest and most
experienced workers and this work was considered more difficult.
But what is very clear is that it utterly destroys the usefulness of the
records in rating these nine workers. To the already completely
inadequate analysis of time factors upon which the record is based,
there is added the fact that the nine workers were not even doing
the same work. We credit the respondent's officers and foremen with
the normal intelligence and experience to be found among those who-
for many years have been engaged in this industry. We cannot be-
lieve that on such a record kept for nine short weeks the respondent
concluded that a worker employed by it for 18 years was inefficient
to the point that she alone of all those applying for work should be
refused.
The pattern of facts in Mrs. Rawston's case is strikingly like that
-in Mr. Madeiros'. Each had worked many years for the respondent,
each had become in 1935 an important Union officer-the only Union
272 NATIONAL LABOR RELATIONS BOARD
officer reemployed by the respondent was a sergeant-at-arms--each
was the only one in his or her group who, applying for reemploy-
menti was refused.
We found that respondent's hostility to the Union, particularly
to its officers, accounts for its refusal to reemploy Mr. Madeiros.
That consideration is equally relevant in the case of Mrs. Rawston.
Standing together the two cases reinforce the conclusion which we
have drawn from each case separately : that the respondent by strik-
ing at the leadership of the Union was seeking to discourage Union
membership and activity. Therefore we find that the respondent
has discriminated against Lauretta Rawston and Manuel Madeiros
with respect to terms of employment for the purpose of discouraging
membership and activity in the Union among its employees and has
interfered with, restrained and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
In the past disputes relating to the organizational activities of
labor have seriously disrupted operations in the textile dyeing and
finishing industry; in 1934, 32,528 men suffered a loss of 755,998
man-days of work with consequent serious injury to industry and
,commerce. We find that the unfair labor practices in question tend
to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact the Board makes
the following conclusions of law :
1. Local No. 1044, United Textile Workers of America (the
Union), is a labor organization within the meaning of Section 2,
.,subdivision (5) of the Act.
2. By its refusal to employ Lauretta Rawston on August 20, 1935,