American Needlecrafts, Inc.

National Labor Relations Board - Board Decisions

Jan 3, 1945

59 N.L.R.B. 1384 (N.L.R.B. 1945)

In the Matter of AMERICAN NEEDLECRAFTS , INC. and UNITED GARMENT
WORKERS OF AMERICA, AFL
In the Matter of AMERICAN NEEDLECRAFTS, INC. and AMERICAN
FEDERATION OF LABOR
Cases Nos. 14-C-877 and 14-R-784 respectively.Decided
January 3, 1945
DECISION
AND
ORDER
U
Pursuant to a Decision and Direction of Election of the National
Labor Relations Board,, herein called the Board, on December 18,
1943, an election was conducted on January 11, 1944, among employees
of American Needlecrafts, Inc., herein called the respondent, at its
studio and plants at Hardinsburg, Kentucky, to determine whether or
not they desired to be represented by United Garment Workers of
America, affiliated with the American Federation of Labor, herein
called the Union, for the purposes of collective bargaining. The
Union lost the election. On January 13, 1944, the Union filed objec-
tions to the election, alleging that the respondent had engaged in unfair
labor practices prior to the election,-and requesting that the election
therefore be set aside. Thereafter, the Regional Director issued her
Report on Objections, in which she found that the objections raised
substantial and material issues with respect to the conduct of the ballot,
and recommended that a hearing be held on such objections. Upon
charges filed by the Union -alleging that the respondent had engaged
in unfair labor practices, a complaint was issued by the Board. On
March 15, 1944, the Board issued an order consolidating the above
proceedings and directing that a hearing be held on the objections to
the election and on the alleged unfair labor practices. A hearing was
held before a Trial Examiner on April 19, 20, and 21; 1944, at Hardins-
burg, Kentucky, in which the Board, the respondent, and the Union
participated by their representatives. The Board has reviewed the
1 53 N. L. R B. 1402.
59 N. L. R. B., No. 256.
1384
AMERICAN NEEDLECRAFTS, INC. 1385
Trial Examiner's rulings on motions and on objections to the admis-
sion of evidence, and finds that no prejudicial error was committed.
The rulings are be affirmed.
On June 23, 1944) the Trial Examiner issued his Intermediate Report,
a copy of which is attached hereto, in which he found that the respond-
ent had engaged in, and was engaging in, certain unfair labor practices,
and recommended that it cease and desist therefrom and take certain
affirmative action. Thereafter, the respondent and the Union filed
exceptions to the Intermediate Report and briefs in support of their
exceptions.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner, except insofar as
they are inconsistent with our findings and order hereinafter set forth.
1. The respondent contends that the settlement agreement of Decem-
ber 16, 1943, is a bar to our consideration of events prior thereto and to
our findings of unfair labor practices based upon such events. We do
not agree. We have consistently refused to give effect to a settlement
or compromise of unfair labor practices "where [the] -employer violates
it or continues a course of unfair labor practices." 2 In the instant case,
it is clear that the respondent committed unfair labor practices subse-
quent to the settlement agreement in violation of its express terms.3
Thus, as found by the Trial Examiner, in which finding we concur, on
December 31, 1943, the respondent discharged employees Tivitt and
Guthrie because of their union membership and activities. We also
note that, as found below, through an address delivered to the employees
by Manager Sphire on January 11, 1944, the respondent, contrary to its
promise in the agreement,' in, effect urged the employees not to affiliate
themselves with the Union and to vote against that organization in
the coming election. In view of all of the foregoing, we do not believe
that it would effectuate the policies of-the Act to give effect to the
settlement agreement.5
2 Matter of Armour Fertilizer Works, Inc, 46 N. L R. B 629 , 656; Matter of American
Cyanamid Co., 37 N L R R 578 ; Matter of Taylor-Colquitt Co ., 47 N. L. R. B. 225, 242,
enf'd 140 F . ( 2d) 92 (C. C. A. 4) ; Matter of the Geneial Fireproofing Company, 59 N. L.
B. B. 375.
3 The settlement agreement expressly provided that the respondent would refrain from
discouraging membership in the Union or in any other manner interfere with the employees'
right to self -organization. I
In that agreement , the respondent promised to refrain from discouraging membership
in the Union by, among other things, "urging" its employees concerning their membership
or activity in that organization. '
5 Though not entirely clear, the Trial Examiner ' s conclusion that the settlement agree-
ment should not be honored appears to be predicated solely upon the fact that , subsequent
to that agreement , Manager Sphire delivered the afore -mentioned address of January 11,
1944, to the employees. On the facts of this case as outlined above, we find it necessary
to determine whether, absent any clear unfair labor practice following the settlement
agreement and any express undertaking by the respondent to refrain from "urging" its
employees concerning their union membership or activity , Sphire's speech would alone
constitute sufficient basis for refusing to give effect to the settlement agreement. or the
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. We agree with the Trial Examiner's conclusion that the respond-
ent, both prior and subsequent to the settlement agreement of December
16, 1943; engaged in unfair labor practices within the meaning of Sec-
tion 8 (1) of the Act. We base our finding to this effect upon the acts
and statements of the respondent set forth below.
In September'and October 1943, President Schulze directed the re-
spondent's-job instructors to refrain from participating in union activi-
ties, and from expressing to employees their opinions concerning the
Union. These job instructors were non-supervisory employees, and
we so finds Accordingly, and since the respondent's restriction upon
their union activities was not limited to their working hours, such
restriction constituted an unwarranted interference with the exercise
by these employees of their right to self-organization. This is so, not-
withstanding the possibility that Schulze might have honestly believed
the job instructors to have been supervisory employees for whose
actions the respondent was responsible. In prohibiting union activities
by the employees in question, the respondent acted at its peril, and its
mistake or ignorance of the law as to their status as supervisors does
not excuse its unlawful conduct. We further note, in this connection,
that, after learning, from the Board's afore-mentioned Decision, and
Direction of Election of December 18, 1943, that these employees were
not supervisors, the respondent did• nothing to remove the restriction
upon their union activities.
In her address to the employees on September 17, 1943, Sphire, the
respondent's manager, invited 'them to form an "employees' associa-
tion," and 2 days later the respondent permitted the circulation among
the employees, during working hours, of a document outlining the
proposal for the formation of the Association, which contained the
names of three supervisory employees, among others, as members of
the Association's organizing committee. Also, on October 5, 1943,
Sphire engaged in surveillance of the employees as they proceeded
from a restaurant to the court house, where it meeting was to be held
with a Field Examiner of the Board in connection with the latter's
investigation of the Union's charges herein. Sphire thereafter told
employee Guthrie that Sphire thought it was her (Sphire's) duty to
see who attended the meeting. Further, on December 31, 1943, the
respondent discharged employees Tivitt and Guthrie because of their
union membership and activities.
Forming part of the pattern of unlawful and coercive conduct out-
lined above were Schulze's statements to employees, in September
1943, that they had nothing to gain through union affiliation inasmuch
as wages were frozen and the Union could not procure an increase for
events antedating that agreement would be relied upon as a course cif-conduct in the light
of which Sphere's speech could be found to have been violative of the Act
See , also, our afore-mentioned Decision and Direction of Election of December 18, 1943.
AMERICAN NEEDLECRAFTS, INC. 1387-4 ^1
them, and that the organizers were promising that which was against
the law, as well as Schulze's and Sphire's disparaging remarks to
employees, in September 1943, about the Union and its organizers,
such as that the Union was a "phoney union," that the union organizer
who distributed handbills was "a fourflusher" and "ignorant," and
itators who sold whiskey in the daythat union organizers were "ag
17
time and agitated workers at night." No less an integral part of the
respondent's coercive course of conduct was Sphire's speech to the
employees of January 11, 1944, immediately preceding the election, in
which she stressed the "happy relationship" of the respondent and
the employees in the absence of any labor organization, pointed out
that theemployees did not need the Union in order to secure improved
working conditions, questioned the sincerity and motives of the union
leaders, and represented the election as a contest between the respond-
ent and the Union for the allegiance of the employees.
Upon the entire record, we are convinced, and we find, that the
statements and acts of the respondent outlined above were integral
parts of a course of conduct 7 which was designed to defeat the Union's
organizational efforts and which interfered with, restrained and
coerced the employees in the exercise of the rights guaranteed in
Section 7 of the Act s
3. We find that, since the respondent engaged in unfair labor prac-
tices prior to the election held on January 11, 1944, the election was
not an expression of the uncoerced will of the respondent's employees,
and should therefore be set aside, and we shall so order. When we
are advised by the Regional Director that the time is appropriate, we
shall direct a new election.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, -the National Labor Relations
Board hereby orders that the respondent, American Needlecrafts, Inc.,
Hardinsburg, Kentucky, and its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Discouraging membership in United Garment Workers of
America, affiliated with the American Federation of Labor, or in
Cf N L. R. B v Virginia Electric and Power Co., 314 U. S 469
We find that the coercive effect of the respondent ' s conduct as it whole , as outlined
above . was not neutralized by Sphire 's statements , in her address to the employees of
January 11 , 1944 , that the latter had a right to join any union and to vote as they pleased,
that no vote of theirs , whether tor or against the Union , would in any way interfere with
their "job " or "chance of promotion ," and that "whatever their choice , it will be carried
out to the fullest extent" by the respondent . See Matter of Agar Packing & Provison
Corporation , 58 N L . N B 738, and Matter of Julius Cohn , d/b/a Comas Manufacturing
Co., 59 N.'L. R B , No 43
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any other labor organization of its employees, by discharging or
refusing to reinstate any of its employees, or in any other manner
discriminating in regard to their ' hire or tenure of employment, or
any term or condition of their-employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form labor organizations, to join or-assist United Garment Workers
of America, affiliated with the American Federation of Labor, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
_as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole Blanche Tivitte and Pauline Guthrie for any loss
of pay they may have suffered by reason of the respondent's discrimi-
nation against them, by payment to each of them of a sum of money
equal to the amount which she normally would have earned as wages
from December 31, 1943, the date of the discriminatory discharge, to
February 17, 1944, less her net earnings during such period;
(b) Post immediately in conspicuous places throughout its Hard-
insburg, Kentucky, studio and plants, and maintain for a period of at
least sixty (60) consecutive days from the date of posting, 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 paragraphs
1 (a) and (b) of this Order; (2) that the respondent will take the
affirmative action set forth in paragraph 2 (a) of this Order; and
(3) that the respondent's employees are free to become and remain
members of United Garment Workers of America, affiliated with the
American "Federation of Labor, and that the respondent will not
discriminate against any employee because of membership in or
activity on behalf of that organization;
(c) Notify the Regional Director for the Eleventh Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, as amended, be, and it
hereby is, dismissed insofar as it alleges that the respondent discrimi-
nated in regard to the hire or tenure of employment of the following
employees: Thelma Compton, Alberta Poole, Erie Nix, Mildred Den-
ham, Lucille McCoy, Genieve Milam, Myrtle Bryan, Donnie Williams,
Genieve Alexander, Mrs. Ed Mercer, Wanda Dawson, Mildred Boes-
hart, Nancy Macey, Venus Gaffney, Alice Mattingly, Arlene Seaton,
Thelma Black, Minnie Tivitt, Helen Frank, and Margery Nicolas.
AND IT IS FURTHER ORDERED that the election held on January 11,
1944, among the employees of American Needlecrafts, Inc., at its
AMERICAN NEEDLECRAFTS, INC. 1389
Hardinsburg, Kentucky, studio and plants, be, and it hereby is, set
aside.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Harry G Carlson, for the Board.
Dan P. Ritter, of Kansas City, Mo., for the Union
Thomas E. Sandidge, of Owensboro, Ky., and L. Schulze, of New York, N. Y.,
for the respondent.
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Garment Workers of America,
affiliated with the American Federation of Labor, herein called the Union, the
National Labor Relations Board, herein called the Board, by its Acting Regional
Director for the Fourteenth Region (St. Louis, Missouri ), issued its amended
complaint dated April 5, 1944, against American Needlecrafts, Inc., 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)
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 and notice of hearing thereon
were duly served upon the respondent and the Union.'
With respect to the unfair labor practices, the amended complaint alleged in
substance that the respondent since the first part of September, 1943 had inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act: by instigating, promoting, dominating and
interfering with the administration of American Needlecrafts Association, a labor
organization ; questioning its employees concerning their union affiliation and
activities, and making derogatory statements concerning the Union and its leader-
ship ; advising, urging and warning its employees to refrain from joining , assist-
ing or voting for the Union; interfered with the election which was held pursuant
to the Board's Decision and Direction of Election' on January 11, 1944, by
surveillance, by stating to its employees that they need not vote for the Union
in order to secure better wages or working conditions, and by asserting itself as a
candidate in the election in opposition to the Union ; and that the respondent on
or about December 31, 1943 and January 7, 1944 discharged 22 named employees
because of their union affiliation and activities ; that by the foregoing conduct
respondent had violated Section 8 (1) and (3) of the Act
In its duly filed answer to the amended complaint, the respondent denied that
it had engaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held on April 19, 20, and 21, 1944, at Hardins-
burg, Kentucky, before the undersigned, the Trial Examiner duly designated by
the Chief Trial Examiner. The Board and the respondent were represented by
counsel and the Union by a lay representative. Full opportunity to be beard,
to examine and cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. Respondent objected to the introduction of evi-
I The Union having filed objections to an election held on January 11, 1944, pursuant
to the Board's Decision and Direction of Election dated December 18, 1943, and the Board
having ordered a hearing on the said objections in Case No. 14-R-784, the Board on March
15, 1944, ordered the consolidation of representation and complaint cases.
' Matter of American Needleerafts, Inc, and American Federation of Labor, 53
N. L. R. B. 1402.
1390 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
dence of unfair labor practices occurring prior to December 16, 1943, the date of
an agreement executed by the respondent and the Board's agent in settlement of
a prior complaint. The said objection was overruled by the undersigned. Fur-
ther reference to the settlement agreement of December 16, 1943, is contained in
the body of this Report. Near the close of the hearing, the undersigned granted,
without objection, a motion by the Board's counsel to conform the pleadings to
the proof. At the close of the hearing, the parties were advised that they might
argue before and file briefs with the undersigned. All parties waived oral
argument and the filing of briefs.
Upon the record thus made and from his observation of the witnesses, the
undersigned makes the following;
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The respondent, American Needlecrafts, Inc., is a New York corporation with
an office and place of business at Hardinsburg, Kentucky. It has for some 17
years been engaged in the production of quilted goods for domestic trade-at its
Hardinsburg plant or studio. It operates also a studio in Elizabethtown, Ken-
tucky, but only its Hardinsburg operations are involved in these proceedings.
During a portion of 1942, all of 1943 and until February 1944, the respondent
was also engaged at Hardinsburg in the production of sleeping bags for the United
States Army On or about February 23, 1944, work under the contract for sleeping
bags was completed and the contract expired. As a result, only the studio
remained in operation.
During the first nine months of 1943, the respondent purchased textiles, trim-
mings, Zccessories, feathers, down and thread for use in its Hardinsburg opera-
tions.of a value in excess of $25,000, over 90 percent of which was shipped to the
Hardinsburg plants from points outside the State of Kentucky. During the same
period the respondent produced finished products valued in excess of $100,000,
over 95 percent of which was shipped from the Hardinsburg plants to points
outside the State of Kentucky.
The respondent concedes that it is engaged in commerce within the meaning of
the Act i
II. THE ORGANIZATION INVOLVED
United Garment Workers of America is a labor organization affiliated with
the American Federation of Labor, and admits to membership employees of the
respondent.'
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Hardinsburg, Kentucky, seat of respondent's operations involved in this pro-
ceeding, is a town of some 1,000 inhabitants and is situated in a predominantly
agricultural community. For some 17 years, respondent has been engaged at
its permanent Hardinsburg plant, called herein the Studio, in the manufacture
of hand-quilted and hand-sewn coverlets and other similar handmade merchandise.
9 These findings are based on a stipulation executed by the respondent and the Board,
and the undisputed and credited testimony of the \ritnesses
4 This finding is based on the undisputed and credited testimony of Daniel P Ritter, a
National Representative of the United Garment Workers of America.
AMERICAN NEEDLECRAFTS, INC. 1391
In the summer of 1942, respondent was awarded a contract by the Procurement
Division of the War Department for the making of service sleeping bags' for
the Army. Ludwig Schulze, respondent's president, testified that the first con-
tract was in the nature of an experiment. Respondent later bid on and was
awarded other contracts for the manufacture of sleeping bags and completed
work on a total of six such contracts. In the performance of these contracts,
respondent rented two vacant store buildings in Hardinsburg. These were known
as War Plant Number 1 and War Plant Number 2, respectively. As of Novem-
ber 6, 1943, respondent employed about 137 persons, a majority of whom were
employed at the war plants and were therefore comparatively new employees.
There appears to have been no organizational activity among employees of
the Harinsburg community prior to September 1, 1943.
On or about September 1, 1943, organizers for the Union came to Hardinsburg
and called at the homes of Blanche Tivitt and Maggie Riper, employees of the
respondent. On September 13 they distributed handbills outside respondent's
Hardinsburg plants. Just prior to the noon lunch hour, on September 14, Frank
Schwartz, respondent's secretary and treasurer, Adele Sphire, local manager of
all respondent's Hardinsburg operations, and Schulze, came into War Plant
Number 1 where Schulze addressed the employees. It was Blanche Tivitt's
undisputed and credited testimony that Schulze had-one of the union handbills
in his hand and said he guessed the employees were familiar with it "having
received one yesterday afternoon from the fourfiusher standing outside." Schulze
then stated that he was in favor of "good" unions but that he had investigated
and this was a "phoney" union, and that one had only to look at the handbill
to see that the organizer was ignorant. He further stated that since wages
were frozen the Union could not get raises for the employees and were promising
that which was against the law. Schulze also told the employees that organizers
were well paid and could not afford to stay in Hardinsburg and "go to bat"
for the workers, inasmuch as the total of dues collected at Hardinsburg would
be small. The aforesaid address by Schulze admittedly was made during the
employees' regular working hours.
On the following day, September 15, Blanche Tivitt and Pauline Guthrie, both
of whom were job instructors in War Plant Number 1, were summoned to the
Studio where Schulze asked them what they thought they would gain by joining
the Union, inasmuch as wages were frozen and the Union could not procure an
increase for them. Tivitt testified : "He said what could we do to keep the people
from being taken in as suckers, and everyone who had signed one of those cards
was a sucker." According to Tivitt, Schulze further said that the union organ-
izers were "agitators who sold whiskey in the daytime and agitated the workers
at night." He also repeated what he had said in his address to the employees
the day before, that this was a "phoney" union and that the organizers were
not the true representatives of the Union. Tivitt's testimony, corroborated by
Guthrie, was not denied and is credited s
On September-17, Adele Sphire, respondent's local manager, whose office was at
the Studio, came into War Plant Number 1, just before the close of the work shift
at 5 p in o'clock. Immediately after 5 o'clock she read to all the employees
5 Schulze testified concerning his September 15 address : "When the Union people first
appeared, the agitators appeared, I did not know just what legal rights we had in the
matter " He further testified that he consulted local attorneys and was advised that he
could express his opinions on the Union to the workers, and that accordingly he told the
employees what lie thought about the Union. He also admitted that on September 15, he
talked to Guthrie and Tivitt and repeated to them what he had said in his speech of the
prior day
618683-45-vol. 59-89
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this plant a proposal for an "Employees Association," called herein the Associa-
tion, and invited anyone who cared to join the Association to sign their names
to the paper which she held in her hands. She also referred to the union's
organizers as "strangers" who were "looking for suckers." ° On September 19,
Golden L. Wheatley, employed as a cutter of sleeping bags in War Plant Number
2, whose duties from time to time, brought him to the Number 1 Plant,
distributed the circular containing the proposal for the Association from which
Sphire had read on September 17, among the employees of War Plant Number 1
during the latter's working hours. Listed on this circular as members of the
Association's "Organizing Committee," were Sphire, Dorothy Smith, manager
of respondent's two war plants, Joe Teaff, foreman of War Plant Number 2,
and some 34 non-supervisory employees.
On or about September 21, Schulze spoke to all the job instructors, including
Blanche Tivitt and Pauline Guthrie, and told them that since they were considered
a part of management, they should refrain from all participation in union ac-
tivities and should not express their opinions on the Union to employees. Schulze
testified that he took this action after he had been advised by counsel, on or
about September 21, that the company would be held responsible for the conduct
of its supervisory personnel. He further testified that he thought he talked to
the instructors about October 4 and 5 and after he had been advised by the
Board's Field Examiner that he must keep his supervisors from participating
in union activities. In view of a later conferende with four instructors, on or
about October 7, with reference to their participation in union activities, the
undersigned believes that Schulze in his testimony was confused as to dates and
finds that his meeting with the entire staff of instructors occurred, as testified
to by Guthrie, on or about September 21.
- On October 5, there was a meeting of employees at the courthouse in Hardins-
burg called by a Field Examiner of the Board for the purpose of investigating
a charge of unfair labor practices filed by the Union. Some 60 employees
attended this meeting. Tivitt testified that the employees met at Gardner's
Restaurant in Hardinsburg immediately after the close of the work shift at
5 p. m. o'clock and, in a body, went from the restaurant to the courthouse. She
further testified that Sphire stood in front of the Studio and observed the em-
ployees as they went to the meeting. Guthrie testified that subsequent to the
meeting at the courthouse Sphire told her that she thought it was her duty
to see who attended the meeting. This testimony, undisputed, is credited. While
the entrance to the courthouse which the employees used in attending the
October 5 meeting, cannot be seen from the Studio, which is located on the
opposite side of the courthouse, employees could be observed from the Studio
as they went from the restaurant toward the courthouse entrance. On the
basis of Tivitt's and Guthrie's undisputed and credited testimony, the under-
signed finds that Sphire observed the employees who attended the meeting of
October 5, with the intention of establishing their identify.
On October 7, Blanche Tivitt, Guthrie, Wanda Dawson, and Mary Weather-
hold, all job instructors were called to the office in the Studio, during working
hours Schulze and Sphire were present at the office. Schulze asked if they
had attended the meeting at the courthouse and questioned Tivitt if she had
addressed the employees or had made a statement. He told Tivitt, "There are
several charges against me and all because of your actions," and insisted that
she tell him what statement she had made at the meeting. Sphire said that
° Findings relative to Sphire ' s statements and conduct on September 17 are based on the
undisputed and credited testimony of Blanche Tivitt. Sphire did not testify.
AMERICAN NEEDLECRAFTS, INC. 1393
she thought Tivitt should promise not to do anything "further in any way to
further or hinder the cause of the union." Schulze said that the very fact
that they had attended the meeting, indicated'that they had tried to influence
the workers.
On December 3, 1943, the Board through its Regional Director issued a com-
plaint against the respondent alleging that it had engaged in unfair labor
practices as charged by the Union. On December 16, the respondent and the
Board's Regional Director executed a stipulation and agreement in an informal
settlement of the complaint. By the terms of this stipulation the respondent
agreed that it would not recognize the "Association" as representative of any
of its employees, and would not discourage membership in the Ut ion by "urging,
warning or questioning" its employees concerning their union membership and
activities. The respondent further agreed to post notices setting forth the terms
of the stipulation, and to notify the Association of its non-recognition. The
notice was posted as agreed upon, on January 1, 1944. The Board does not
allege that the settlement agreement was violated with respect to the Associa-
tion, and it further appears that the Association was never more than an abortive
attempt to form an "inside" labor organization. The Board alleges, however,
that the settlement agreement was violated in other respects.
Pursuant to a hearing held on November 5, 1943, on the Union's petition for
an election, the Board on December 18 issued its decision and direction of elec-
tion.' In its decision the Board found that job instructors of the status of Blanche
Tivitt and Pauline Guthrie, were not supervisory employees and directed that
they be included in an appropriate unit. On December 31, 1943, certain em-
ployees named in the Board's complaint were discharged ; on January 3 and
January 7, 1943, the employment of others whose names are set forth in the
Board's complaint, was terminated Discussion of these discharges will be
found in the next sub-division of this Report.
On January 11, 1944, the date of the election, at or about 5 p. m. o'clock, the
end of the work shift, and the time scheduled for the opening of the polls all
employees were summoned to the Studio There Sphire read to the employees
a statement containing language almost identical with that found in the Amefi-
can Tube Bending case a The following excerpts from the' statement are
illustrative :
. . . it is not at all necessary for you to vote for the Union in order to
get better wages or improve your working conditions.
Some of you know that we have voluntarily increased individuals wages
as rapidly as possible, as quickly as you have earned them and as quickly
as we could pay them. I, myself, have even made application to pay higher
wages than those paid in the Community and I am glad to say they have
been approved by the War Labor Board. Your choice now is whether or
not by voting for the Union you can better this record. If you do not think
you can better this record by voting for the Union, then I suggest you should
vote to continue the policy under which you have in the past materially
benefited. If you decide to have someone else represent you, you must
make up your mind to pay for that representation. When it comes to a
final analysis you are voting on whom you want to have for your leader.
To what kind of leadership are you going to entrust your future with
the Company? Is it unselfish or is it not? Is it interested in your personal
' See footnote 2, supra.
IN. L. R. B. v. American Tube Bending Co., 134 F . ( 2d) 993 (C. C. A. 2), cert. denied
820 U. S. 768.
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
welfare, or is it self-seeking? You have to ask yourselves why it is that
total strangers all of a 'sudden became so interested in your welfare. Who
are they? What have THEY done? What more can they do for you than
you have already done for yourselves? . . . In other words, is your position
under my leadership and its present officers something that you can improve
I by choosing someone else, an outsider, to be your leader?
The election was held in the courtroom on the second floor of the courthouse.
The polls were open from 5 to 6 p. m. o'clock., It is seen therefore that Sphire's
address occurred immediately preceding or at the time of the opening of the
polls. Joseph F. Teaff, foreman at War Plant Number 2 and the only employee
bearing the title of foreman, admitted that during the polling of the votes he
stood on the first floor of the courthouse in a position close to the foot of the one
stairway leading to the second floor. He testified, however, without contradic-
tion, that he spoke to no employee concerning the election and that while he saw
the employees as they came downstairs after voting, he did not see any of them
as they entered to vote. He testified that he first came to the courthouse between
5: 15- and 5: 30, remained only 5 minutes, and later returned near the closing
of the polls and in company with the union organizer, went upstairs after the
polls had closed and witnessed the counting of the ballots. Since the courthouse
where the votes were cast is a public place and it appears that Teizff was neither
warned not to appear in the vicinity of the polls nor requested to leave when he
appeared, and particularly in view of his uncontradicted testimony that the
employees had already gone to the polling place when he entered the courthouse,
the undersigned finds that his presence near the polling place did not constitute
interference, restraint, or coercion. The election resulted in 61 votes cast
against the Union, 19 for the Union, and a number of challenged ballots.
Conclusions
It is the respondent's position that in view of the settlement agreement of
December 16, 1943, the Board should not consider evidence of unfair labor
practices occurring prior to that date The undersigned, however, is convinced
and finds that the Sphire address to employees immediately preceding the opening
of the polls in the election of January 11, 1944, cannot properly be viewed
and evaluated in isolation and that to determine the effect of such a statement,
it is necessary to consider the entire evidence of unfair labor practices. Cer-
tainly, the employees, to whom the statement was addressed, would not be ren-
dered oblivious to respondent's conduct and statements prior to December 16,
by the fact of the settlement agreement, and it is the effect of the statement upon
the minds of the employees that is controlling. The employees who heard Sphire's
statement on January 11 would be mindful that in September, 1943, she sponsored
the Association as part of respondent's attempt to set up a company dominated
organization in opposition to the -Union, and referred to the union organizers as
"strangers" who were "looking for suckers." They would also be reminded of
Schulze's anti-union statements and conduct in the fall of 1943. When the Janu-
ary 11 statement is considered in this, its proper context, it is clear that it
constituted interference with the employees' choice of a bargaining representa-
tive and amounted to pressure vocally aplied,9 and does not come within the
doctrine of the American Tube Bending case.10
In view of the foregoing and upon the basis of, the entire record, the under-
signed finds that by the statements and conduct of its executives and managerial
9 N. L. R. B. v. Virginia Electric if Power Co , 314 U. S. 469.
10 See footnote 8, -supra. - - -
AMERICAN NEEDLECRAFTS, INC. , 1395
staff questioning its employees concerning their union affiliation and activities,
in making statements derogatory of the Union and its leadership, in requiring
its instructors to refrain from participation in union activities, in warning its em-
ployees that they would not gain through union affiliation, and in constituting it-
self a principal in the election of January 11, 1944, in opposition to the Union"
and by the totality of such statements and conduct, the respondent has inter-
fered with, restrained, and coerced its employees and has interfered with their
free choice of a bargaining representative, in violation of Section 8 (1) of the
Act.
B Discrtminatiot
It is alleged that the respondent discharged 22 employees because of their
union affiliation and activities. The discharges as alleged occurred on Decem-
ber 31, 1943; January 3 and January 7, 1944. Of the alleged discharges, 15 were
employed at War Plant Number 1 at the time of the termination of their em-
ployment, and 7 at the Studio. As of the pay-roll week ending December 25,
1943, respondent employed a total of some 112 persons. Of these approximately
50 were employed at War Plant Number 1, some 10 or 12 at War Plant Number 2,
and the remainder at the Studio. The respondent admits that all of the em-
ployees named in the Board's complaint were discharged on or about the re-
spective dates set forth in the complaint, with the exception of one employee,
Mildred Boeshart, whose-employment, it contends was voluntarily severed on or
about December 13, 1943. '
Blanche Tivitt, mentioned in the prior section of this Report as a job instructor
in War Plant Number 1, testified that all of the 22 employees named in the
Board's complaint signed Union cards and participated in union activities.
Union authorization cards bearing what appeared to be authentic signatures of
the discharged employees and identified as cards signed by these employees by
Tivitt, who testified that she personally received the cards and gave them to the
union organizer, were received in evidence. It was Tivitt's undisputed and cred-
ited testimony, that of the employees of War Plant Number 1, all but about 7
signed union cards; that all of the employees of War Plant No. 2, and less than
a dozen employees of the Studio, signed cards She further testified that all
of those active in the Union were among the dischargees named in the Board's
complaint. It is seen that the discharges occurred only a few days prior to the
election of January 11, 1944.
Aside from Blanche Tivitt's testimony to the general effect that all of the
discharged employees were active in behalf of the Union and her further testi-
mony that all except six, whom she named, attended the October 5 meeting at
the courthouse, there is little specific evidence of the organizational activities of
any of these employees with the exception of Tivitt and Pauline Guthrie, both
of whom were job instructors at War Plant Number 1 and who appear to have
been the leaders of the organizational movement among the employees. There
was only one formal organizational meeting of employees and this occurred in
December in Cloverport, a nearby town None of the witnesses testifying at-
tended the meeting and there is no basis for inferring that respondent had
knowledge of those who did attend it. Since some 60 employees attended the
meeting called by the Board's Field Examiner which was held on October 5 at
the courthouse in Hardinsburg, it cannot reasonably be inferred that mere at-
tendance at this meeting entered substantially into the motivation for the dis-
11 N L. R B. v. Stone, 125 F ( 2d) 752 (C. C. A. 7) ; cert . denied , 317 U S . 667 ; N. L. R B.
v. Sunbeam Electric Mfg. Co., 133 F. (2d) 856 (C. C. A. 7).
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charges. It appears that informal gatherings of employees interested in the
Union took place at Gardner's restaurant , a local eating place . Tivitt testified
that when union organizers were in town , employees would meet with the or-
ganizer at this restaurant , and Dorothy Smith, manager of Plant Number 1,
admitted that she had observed employees talking to the organizers at this
place. It is also borne in mind that in a small community like Hardinsburg,
which witnessed the first organizational movement among employees in Sep-
tember, 1943 , it is entirely probable that union activities openly carried on
would become a matter of common observation and talk.
1 The Studio
On December 3, 1943, Schulze was advised of a court decision that employees of
respondent 's Studio engaged in handwork at their respective homes, were subject
to the provisions of the Wage and Hour law . He testified that respondent was
unable to meet the record and time -keeping requirements of the law with respect.
to those employees engaged in homework outside the Studio, and that on December
3 and thereafter , respondent discontinued all handwork operations requiring the
services of employees in their homes . It was his further credited testimony that
prior to December 3, work in the Studio was of an accessory or supplementary
character involving such operations as he machine sewing of fabrics prior to
quilting , and the reception , cleaning and shipping of articles after the handwork
on them had been completed . According to Schulze , because of the discontinu-
ance of operations requiring handwork , the basis of all Studio operations, it was
necessary to bring about a reduction in the personnel employed at the Studio.
According to Schulze , on first receiving word of the court's decision relative to
homework employees , he instructed respondent 's local Manager Adele Sphire, to
compile a list of Studio employees to be laid off due to curtailment of Studio
operations.
Schulze 's testimony with respect to the necessity for a drastic reduction in the
personnel of respondent 's Studio, is uncontradicted and plausible and is credited. -
The timing of the discharges , however, is to be considered . The discharge of a
substantial number of employees , including those most active in behalf of the
Union, only a few days before the January 11 election , would in the absence of a
credible explanation and in view of the respondent 's anti-union background and
activities, raise strong inferences of discriminatory intent. The respondent was
not, however , required to modify or vary normal business practices even though
they might incidentally exert some influence on employees voting in the January
11 election . Since respondent on December 3 found it necessary to curtail its
Studio operations , it was not required to wait until after January 11 -to effectuate,
a non -discriminatory reduction in its Studio personnel. _
THE ALLEGED DISCRIMINATORY DISCHARGE OF: Erie Nix , Mildred
Denham, Genieve Milam, Myrtle Bryan, Donnie Williams, Mrs . Ed. Mercer
and Thelma Black.
Of the employees named in the Board's complaint , 7 were, at the time of their
respective discharges , employed at respondent 's Studio. Of these, Erie Nix,
Mildred Denham , Genieve Milam , Myrtle Bryan, Donnie Williams, and Mrs. Ed.
Mercer were discharged on December 31, and Thelma Black on January 7, 1944.
All of these employees had signed union cards prior to the dates of their respective
discharges . There is no further evidence of their participation in union activities
than Thelma Black 's testimony that they talked in behalf of the Union. None
of them testified except Black . There is no evidence that respondent had knowl-
edge that they had signed union cards or was otherwise aware of their union
affiliation , other than what may be inferred from testimony of a general character,
AMERICAN NEEDLECRAFTS, INC. 1397
previously referred to, that they were active in behalf of the Union. 2 Thelma
Black testified that Mary Beavin, a job instructor, told her prior to the election,
"If you want to work, you better vote against it [the Union], for if you vote for
it and it goes through the Studio will be done away with, and so will the other
plants." This testimony, not denied, is credited. Mary Beavin was one of the
Association's "Organizing Committee." There is however, no basis for an infer-
ence that respondent was responsible for her statement. The Board in its decision
and direction of election a specifically found that Beavin was not a supervisor
and was included in the appropriate unit. As a non-supervisory employee in.an
appropriate unit, she had the same freedom to express her personal opinions
relative to the Union as other job instructors, such as Tivitt and Guthrie, who
favored the Union The undersigned finds that Beavmn's statement is not
attributable to the respondent.
Thelma Black was first employed in the Studio proper- in July 1943; prior to
that time, and during certain periods from 1932, she had been engaged in home-
work for the Studio. She testified that she thought that only one employee,
Margaret Basham, job instructor of her department, had superior seniority. She
further testified that some 2 weeks prior to January 7, Basham advised her that
there was a "quantity" of tailored cases yet to be made and that Black would
"get to make them." Dorothy Smith testified that at the time of Black's discharge
on January 7, there were only 2 employees engaged in making cases, Black and
'Kathleen Pierce, and that the latter had superior seniority" Of the other 6
employees of the Studio, named in the Board's complaint, it appears that none
of them were employed prior to 1942, and that therefore they were junior in.
seniority to numerous other employees, since the Studio had been in operation
some 17 years. Dorothy Smith testified that seniority, absenteeism and ineffi-
ciency were factors in the selection of these employees for discharge on December
31. Her testimony in this respect was specific and was substantially uncontra-
dicted.
Schulze admitted that some 8 or 10 Studio employees were transferred to War
Plant Number 1 after December 31. He testified that these were old employees
who were accorded preferential treatment because of their long tenure of employ-
ment. It appears that all who were thus transferred from the Studio to War
Plant Number 1 were senior in employment to those who were discharged from
the Studio, with the possible exception of Thelma Black.
In view of the foregoing,-the undersigned is unable to conclude that the respond-
ent either in the timing of the discharge of Studio employees or in its selection
of Studio personnel to be discharged prior to the January 11 election, was guilty
of discriminatory practices. Its explanation of the discharges was in the main
plausible and persuasive. The undersigned is not without doubt, in view of
Tivitt's testimony, substantially corroborated by Black, that less than a dozen
of the Studio employees signed union cards and that all of those discharged on
or before January 7 were among two small groups. Tivitt testified that Black
was by far the most active among Studio employees in behalf of the Union.
17 It was stipulated by respondent 's and . the Board's counsel that if called as a Board
witness, Elizabeth Seaton would testify that in October, 1943 Dorothy Smith told her, "We
know all who are for the Union . . Smith denied that she made this statement to
Seaton. The undersigned having no opportunity to observe Seaton as a witness is unable,
in view of Smith's denial, to find that Smith made this statement, as alleged.
11 See footnote 2, supra.
14 It is not clear whether in the computation of seniority homework was taken into con-
sideration . Obviously, Black in testifying that only one other employee was superior
to her in seniority, intended to include the periods during which she had been engaged in
homework.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no evidence , however, that respondent at any time saw the signatures
on the union cards or observed any of its employees signing such cards, nor does
it appear that these signatures were procured openly, or within the Studio during
working hours , from which it might be inferred that respondent had knowledge
thereof. Therefore , while not without doubt , particularly with reference to the
discharge of Thelma Black , the undersigned will recommend that the complaint
be dismissed insofar as it alleges the discriminatory discharge of Brie Nix,
Mildred Denham , Genieve Milam, Myrtle Bryan, Donnie Williams, Mrs. Ed.
Mercer, and Thelma Black.
2. War Plant Number 1
Schulze testified , with reference to the discharge of employees of War Plant
Number 1, that work on the last of the war contracts was begun in November
1943 and was nearing completion on December 31. 1943. In October or November,
respondent bid on an additional war contract . Schulze testified that early in-
December he visited the office of the Procurement Division of the War Depart-
ment in Philadelphia , and was then advised that respondent would not receive
the contract award. "I had this conversation with the contracting officers,"
Schulze testified , "but they were reluctant to put any statements in writing until
they were absolutely certain I did not write them to please give it to me in
writing until after the first of the year."
In January 1944, respondent received a letter, dated January 6 , from the
Philadelphia Quartermaster Depot which stated :
Reference is had to your letter of 5 January 1944 in which you inquire
about your bid made in response to this depot 's telegraphic invitation dated
4 October 1943.
You are advised that no award was made to your company as a result of
this bid. -
From the foregoing it is clear that it was not until the receipt of the January 6
letter, that respondent was definitely and officially advised of the rejection of its
bid on an additional war contract . Schulze testified , however, that after his
visit to Philadelphia in December , and between December 15 and Christmas, he
called Sphire by telephone , advised her that he had definite word that no more
war contracts would be awarded respondent , and instructed her to begin the
lay-off of employees engaged in war production . Sphire did not testify . Dorothy
Smith, manager of War Plant Number 1, testified that on or about December 15
she was advised that there would be no more war contracts , and that she col-
laborated with Sphire in determining the order of the discharges which followed.
All of the 15 employees of War Plant Number 1 named in the Board 's complaint
were discharged on or before January 7, and it is obvious that their discharges had
been determined prior to respondent 's receipt of the January 6 letter notifying
it officially of the rejection of its bid.
Schulze testified that work on the last war contract was completed on Feb-
ruary 18, 1944, and that shortly thereafter respondent cancelled its lease on the
building known as War Plant Number 2. He admitted that certain operations
were continuing at War Plant Number 1, but testified that respondent had a
3-year lease on this building and that use was being made of the extra space for
operations previously carried on at the Studio . It appears from Schulze 's testi-
mony that respondent is attempting to convert its Studio from handmade to
machine-made production and that such work as it now carried on at the Hardins-
burg plants is of an experimental character not related to war production. The
respondent currently employs a total of only some 35 employees.
AMERICAN NEEDLECRAFTS, INC. 1399
Work on the next to the last war contract was completed on December 3, 1943.
Work on the final contract was begun in November. Whde the record does not
reflect precisely what portion of work on the entire contract was completed on
on before December 31, -since final shipment on the contract was made on Feb-
ruary 18, 1944, with reduced personnel following December 31, it is inferred that
in the four or more weeks during which production had proceeded on this con-
tract prior to December 31, a substantial portion of it had been completed on and
prior to that date. It is equally clear that a substantial portion of the work on
the final contract remained incomplete on that date. It was Pauline Guthrie's
undisputed and credited testimony that of the 4,500 sleeping bags called for in
the contract, only 1560 or about 1/3 had been completed as of the date of her
discharge, December 31."
Schulze, while not testifying as to the stage of completion of the entire contract
as of December 31, stated with reference to that operation on the contract known
as Preparatory work," that of a total of 126,000 separate items required for the
completion of that portion of the contract, all but 21,048 had been completed on
December 31. This testimony was based on respondent's work sheets and records,
not offered in evidence but furnished the Board's attorney for examination.
Blanche Tivitt, job instructor of the Preparatory work, testified, on the basis of
memoranda which she kept in the course of her work, that only about 1/ of the
entire Preparatory work had been completed on December 31. Tivitt, however,
admitted on cross-examination some uncertainty as to whether the figures in her
memoranda were complete.11 The undersigned has considered carefully the con-
flict in the testimony of these two witnesses and without impugning the credi-
bility of either, believes that Schulze's testimony, based on records kept in the
regular course of respondent's business, is the more accurate.
Schulze further testified that a total of 2921/2 hours of production was required
to complete that portion of the Preparatory work unfinished as of December 31.
It was Tivitt's undisputed and credited testimony that, including herself, there
was a total of 7 employees engaged in Preparatory work as of December 31 Of
these, Blanche Tivitt and Thelma Compton were discharged on December 31,
and Nancy Macey and Minnie Tivitt, sister-in-law of Blanche, on January 7.
Of the remaining 3 employees in this department, the following were continued
in employment after December 31, for the periods indicated : Jamsetta Shrews-
berry, 176 hours ; Stella Hinton, 1821/ hours ; Mrs. Iva Crass, 292 hours. Schulze
16 Guthrie was job instructor in the finishing department. She testified that as the
sleeping bags were completed, labels were pinned on them and the consecutive number of
each bag was stamped on the label
16 Respondent's production of the sleeping bags was divided into departments or units,
each of which was allotted- as many machines as were required to completd a certain
operation. The Preparatory work was not, as its name would indicate,, necessarily an
initial operation in the manufacture of the bags, but had to do with the manufacture of
accessories which were to be affixed to the bags.
14 The following is an excerpt from Trvltt's cross-examination :
Q Do those figures disclose the exact amount of production which had been made
in the Preparatory Department on the next contract prior to the time you quit?
A If I had kept them, it does
s r e •- s
Q. Had you kept them correctly?
s
A. I had kept them correctly all except the tie tapes. The first week there was a
time sheet turned in I did not get the exact number from, and the girl told me how
many she had done that day.
t M 0 • 4 • k
Q. Do those figures disclose all of the tie tapes that were made?
A. There could possibly have been a few more. As I said, this one day this time
.sheet was turned in and I did not write it down in the book.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that 2 operations in the Preparatory work were completed and the re-
spective machines shut down as of December 31. The 3 employees who were
retained in this department after January 7, however, were not engaged exclu-
sively in the Preparatory operations after December 31. Of the total number of
hours worked subsequent to December 31, as stated above, Shrewsberry worked
only 88 hours, Hinton 91 hours, and Mrs. Crass 33 hours, on Preparatory work.
It is clear therefrom and from the entire record, that respondent followed no
exact system of discharging employees as they finished work on the operations
they were engaged on as of December 31, but on occasion transferred them to
other operations thus extending the tenure of their employment.
It would appear from the foregoing that business considerations did not require
the discharge of a substantial group of employees on or before January 7, 1944,
since most and perhaps all of the employees might have been retained for a
substantial period thereafter thus hastening the completion of work on the
contract. On the other hand, it cannot be said, in the absence of compelling
evidence to the contrary, that the respondent,; with notice of the rejection of its
bid on anadditional contract, did not act within the ordinary exercise of mana-
gerial discretion in causing an early and gradual reduction in its personnel.
In addition to the employees named in the Board's complaint, discharged on or
before January 7, 1944, the employment of some 47 additional employees was
terminated on the following respective dates: January 14, 18, 21, 28; February
4, 7, 10, 11, 15, 16, 17, 18, 2178 The Board alleges no discriminatory practices
with reference to this latter group of discharges. It would appear therefrom
that after as well as before the election of January 11, 1944, respondent fol-
lowed a policy of gradually reducing its personnel. By March 1, 1944, total
employment had been reduced to 44.
Some doubt as to the timing of the discharges on and prior to January 7,
is felt in view of the fact that official rejection of its bid was not received by
respondent until after January 6. The undersigned, however, does not find
Schulze's testimony, corroborated by that of Smith, that he was convinced fol-
lowing his visit to the Quartermaster's Depot on or about December 15, that
respondent would not receive the award on a new war contract and accordingly
instructed his Hardinsburg manager to begin the reduction of personnel, so
incredible that, in the absence of substantial evidence to the contrary, it should
be rejected. It remains to determine whether in its selection of the individuals
named in the complaint, the respondent was guilty of discrimination.
The Discriminatory Discharge of Pauline Guthrie and Blanche Tivitt
Of the 15 employees of War Plant Number 1, named in the Board's complaint,
Pauline Guthrie, Blanche Tivitt and Wanda Dawson were job instructors. The
respondent employed a total of 13 job instructors and of these, 5 were employed
at' War Plant Number 1, 1 at War Plant Number 2, and the rest at the Studio.
As previously stated, the Board in its Decision and Direction of Election,' found
38 The respondent also introduced a document containing the names of a number of
individuals whose employment was terminated prior to December 31. Schulze admitted,
however, that except in the instance of one employee of those whose names appeared on
the list, he had no personal knowledge concerning the termination of employment. He
testified, however, that no more than 10 percent of them voluntarily severed their employ-
ment. The undersigned finds no basis for determining the manner in which the employment
of these persons was severed, and in any event, since most of them were severed from
respondent's pay roll prior to December 3, it is obvious that the severance of their
employment is not significant on the issues herein.
19 See footnote 2, supra.
AMERICAN NEEDLECRAFTS, INC. 1401
that these job instructors were nonsupervisory and included in the appropriate
unit.
Respondent denied knowledge of the union affiliation of those whom it dis-
charged on December 31, and January 3 and 7. The undersigned does not credit
this denial insofar as it relates to Blanche Tivitt and Guthrie. It is clear from
the entire testimony and record that Tivitt and Guthrie were employee leaders
in organizational activities. The union organizer on his first visit to Hardins-
burg, called at Tivitt's home `0 Tivitt and Guthrie received union authorization
cards from the organizers, distributed them among the workers, obtained signa-
tures thereon, and returned them to the organizers. That respondent had knowl-
edge of their leadership in the organizational movement, is seen in Schulze's
action, on the day following his September 14 anti-union speech to employees,
in calling Guthrie and Tivitt into private conference for the purpose of repeat-
ing and emphasizing his opposition to the Union. As noted in the prior section
of the Report, following the October 5 meeting at the courthouse, Schulze ques-
tioned and reprimanded Tivitt concerning statements she allegedly had made to
employes or to the Board's Field Examiner. Dorothy Smith, testifying that
she had observed employees at the local restaurant in company with union
organizers, recalled specifically that she had seen Blanche Tivitt though she
was uneole to recall the names of other employees. On the basis of the foregoing
and the entire record, the undersigned finds that on and prior to December 31,
1943, respondent knew or believed that Tivitt and Guthrie were active in behalf
of the Union. ,
In explanation of the selection of Tivitt and Guthrie for discharge on Decem-
ber 31, Dorothy Smith testified that Schulze had directed, at the time he issued
instructions for a reduction in war plant personnel, that job instructors would
not be needed any longer. "Of course," she testified with reference to Tivitt, "all
the supervisors were to go and she was one of them." (Job instructors were
referred to at times, throughout the testimony, as supervisors.) The record
discloses, however, that no job instructors were discharged on or prior to the
election of Januay 11, except Tivitt, Guthrie and Dawson. The other two job
instructors of War Plant Number 1, Helen Raubeson and Mary Weatherhold,
were discharged on February 18 and February 17, 1944, respectively,_near or at
the completion of the last war contract. Of the job instructors employed at the
Studio and War Plant Number 2, 8 in number, none appear to have been dis-
charged at or prior to the date of the hearing in this proceeding. Clearly, there-
fore, Schulze issued no blanket instructions to include job instructors in the first
group of dischargees, or if such were issued they were not carried out. Job
instructors, to the contrary, were as a group given preferential treatment in their
tenure of employment.
Schulze testified that he was "consulted" in the matter of the individual
discharges only with reference to Tivitt and Guthrie. According to him, in a
telephone conversation with Sphire, Sphire advised him that it might possibly
cause some unrest or trouble if Tivitt and Guthrie were discharged, and that he
replied that sound business judgment should prevail and these two employees
should not be retained merely to avoid further trouble. He further testified
that the "sound business judgment" which should prevail with respect to these
employees was that there was no further need of "supervisors." As has been
seen, however, other employees of the war plants whose job status was the same
as that of Tivitt and Guthrie were retained. It further appears that position
20 The organizer also called at the home of Maggie Riper. However, since thereafter
Riper became one of the "Organization Committee" of the Association , respondent would
not likely suspect her, at the times of the discharges , of union sympathies
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not involving job instruction were offered Raubeson,21 and Weatherhold of War
Plant Number 1, and Helen Shellman, job instructor of War Plant Number 2.
When asked why no such offers were made Tivitt or Guthrie, Schulze testified that
both had been guilty of insubordination. `Both had permitted themselves wide
latitude on different insubordinations," Schulze testified.
Concerning Guthrie, Schulze testified that prior to December 31, she had refused
to run a machine when directed to do so by Dorothy Smith, her supervisor.
Schulze further testified that Tivitt had refused to carry out Smith's instructions.
Asked to be more specific, Schulze testified concerning Tivitt, "I don't know
whether I recall any more, except there was a great deal of friction. I do not
think I recall the specific instance that caused the friction, but it was caused."
The following examination ensued:
Q. Do you know why that friction arose?
A. Through insubordination, not wanting to carry out the instructions
given.
Q. But you do not remember any item now?
A. I do remember, but it is bordering on gossip that is distasteful to me.
With still further reference to Guthrie's discharge, Schulze testified that she had
offered candy to the employees during working hours.
Dorothy Smith testified with reference to Guthrie, that on or about December 1,
when one of the machine operators in Guthrie's department was absent, she asked
Guthrie to substitute on the machine and Guthrie refused. Guthrie, an instructor
in the finishing department, testified concerning the incident, that she was
responsible for the inspection of materials in her department and the quality of
the sleeping bags produced, and that she advised Smith that she could not run
a machine and inspect at the same time, but offered to run the machine if she
was relieved of inspection. Smith admitted that on an occasion when Guthrie
was herself absent from work, some 76 bags were returned because not properly
finished. The undersigned credits Guthrie's testimony relative to her alleged
refusal to operate a machine and finds that there was nothing unreasonable or
insubordinate in her conduct on this occasion. Smith admitted that she did not
reprimand Guthrie and made no report on the incident. She testified that she
was not present when Guthrie allegedly offered candy to employees during working
hours but learned of the incident through Sphire, and further testified that while
it was against the rules, some of the employees "did eat candy during working
hours." Smith admitted that at the time Guthrie was discharged, she was not
offered work on a machine or other non-instructor work.
Concerning Tivitt, Smith testified that on or about December 1, there were
some 500 too many tie ends for the bags, due to an error on Tivitt's part. It
appears that Tivitt made lists almost daily of materials which would be needed
to keep the 6 machines in her department in operation. She gave these lists to
Smith and Smith transmitted the lists to Golden Wheatley, a cutter and employee
of War Plant Number 2, whose function it was to cut the materials according
to the specifications of the list Tivitt admitted that at the completion of the
next to the last war contract, there were more pieces than were needed to fill
the contract and that she was reprimanded by Sphire. She testified that there
was something wrong with Wheatley's "arithmetic" since he did not always cut
21 Smith gave as a reason for the retention of Raubeson that the latter was familiar with
materials supplied by the government for the manufacture of the bags . It would appear,
however, that Smith, as manager of the War plant, would herself be familiar with materials
to be used on the different operations , and the undersigned does not credit her explanation
for what was clearly preferential treatment accorded Raubeson.
AMERICAN NEEDLE CRAFTS, INC. 1403
the number of pieces which she had listed. According to Smith, Tivitt and Wheat-
ley could not agree on their figures. It would appear from the foregoing, that
there was some doubt as to where the fault lay, as between Tivitt and Wheatley,
for the surplus of tie ends. Wheatley, who circulated the petition tor the Associa-
tion in War Plant Number 1 during working hours and with respondent's knowl-
edge, was not discharged until January 28, 1944. He did not testify Aside from
the reprimand administered by Sphire, Tivitt was not penalized at the time for her
alleged negligence with reference to the tie ends and was continued as job in-
structor after the completion of the war contract on which the surplus of tie
ends occurred. There is nothing suggestive of insubordination in her conduct
with, reference to the matter, and the record is barren of any'fhrther showing to,
support Schulze's contention that she was insubordinate or refused to carry
out the instructions of her superiors, except that she continued active in behalf
of the Union although warned by Schulze that as a job instructor, or supervisor,
she was a part of management and should not participate in union activities za
In still further extenuation of the discharge of Guthrie and Tivitt on December
31, Smith testified that whereas other job instructors were after that date given
machine work, such work was not offered Guthrie and Tivitt because the former
could not operate diaphragm or duffle bag machines, and the latter was not an
"apt" operator outside of Preparatory work. She admitted, however, that pur-
suant to Schulze's instructions, she had taught Tivitt each of the machine
operations in War Plant Number 1 It further appears, as has been seen, that
machine operations continued in the Preparatory department after Tivitt's dis-
charge. It was Tivitt's credited testimony that she had operated all but two
machine operations in the plant, and had operated machines of the same type of
those two. Guthrie had worked in both the Preparatory and Finishing Depart-
ments, had on occasion substituted for machine operators during the latter's
absences, and was obviously proficient as a machine operator or she would not
have been promoted to a position of job instructor
It was Blanche Tivitt's -undisputed and credited testimony that of the em-
ployees of War Plant Number 1, only 2 were senior to her in tenure of employ-
ment Guthrie was employed in January 1943 and it appears that numerous
employees retained after December 31 were junior to her in seniority. Guthrie
was absent from work, with Sphire's permission, for a time in June, 1943, and
for a period during December It does not appear, however, that the absenteeism
of either Guthrie or Tivitt was more than normal or that either seniority or
absenteeism was a factor in respondent's decision to discharge them on Decem-
her 31.
On the basis of the foregoing and the entire record, the undersigned is con-
vinced that Guthrie and Tivitt did not receive the normal consideration accorded
job instructors in the order of the termination of their employment. The several
reasons advanced by respondent for their discharge on December 31, are each
tenuous or false when examined in the light of the entire testimony, and re-
spondent's entire defense with reference to them has a shifting and insubstantial
character. The timing of the discharge of these two leaders of organizational
activities a few days before the January 11 election is significant and in line
with the respondent's vilification of the Union and its leadership and open efforts
to thwart the Union's efforts to organize its employees during the Fall of 1943.
22 It is entirely credible that prior to the Board ' s Decision and Direction of Election, dated
December 18, 1943 , Schulze may'have been honest in his belief that job instructors were a
part of management and thus not eligible to participate in union activities He did not,
however , subsequent to the Board 's decision revoke his prior demand of job instructors that
they desist from such participation.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned finds that the respondent discharged Blanche Tivitt and Pauline
Guthrie on December 31 , 1943, because of their union affiliation and activities.
The alleged discriminatory discharge of: Wanda Dawson, Mildred Boeshart,
Genieve Alexander , Helen Frank , Thelma Compton , Alberta Poole , Lucille
McCoy, Nancy Macey , Venus Gaffney , Alcie Mattingly , Arlene Seaton , Minnie
Tivitt, and Margery Nicolas.
With respect to Wanda Dawson, the third of the job instructors of War Plant
Number 1 to be discharged on December 31, Schulze testified that she suffered an
injury to her foot just prior to her discharge and therefore "could not stand up
and supervise." He had previously testified, however, that after December 31
there was no need for supervisors, and as indicated in the testimony of Dorothy
Smith, job instructors retained after December 31 no longer "supervised" but
were assigned to machine operations . Smith testified that Dawson said that
she could not work standing up and asked to be assigned to a machine. She
further testified that no supervisors were needed after December 31 and that
she could not let the employee who regularly ran a machine go and retain
Dawson in her place. However, it is clear that instructors , retained after
December 31 operated machines previously run by other employees whose dis-
charges created the vacancies. Despite these inconsistencies in respondent's
position relative to Dawson , there appears to have been justification for her
discharge in view of her record of absenteeism . It was Smith's uncontradicted
and credited testimony , that out of a possible 2,000 hours of work in 50 weeks
of 1943, Dawson worked only 1,432 hours. It appears that most of Dawson's
absenteeism was on account of illness in her family, and Smith admitted that
the cause of the absenteeism was a factor normally considered , but regardless
of the cause it would appear that excessive absenteeism would be a factor which
might reasonably influence respondent to include Dawson in its first group of
dischargees . Dawson did not testify and the record affords no basis for a finding
that she was conspicuously active in behalf of the Union.
Respondent contended that Mildred Boeshart , allegedly discharged December
31, voluntarily quit her employment on December 13. Boeshart , employed in
January or February 1942, denied that she quit her employment , but admitted
that she underwent an appendectomy in December 1943, and was absent from
work from December 15 until about the middle of January 1944 . She testified
that when she reported back for work in January , Sphire advised her that only
a week or two of work remained and therefore she did not return to her job. She
further testified that when she left her employment in December , she stated that
she would return to work "depending on how she felt." Regardless of whether
or not she intended to quit, it is clear that when she next reported for work
production on the contract was nearing completion . The undersigned believes
that the circumstances of the termination of her individual employment justify
no findings adverse to the respondent.
Genieve Alexander , employed in October , 1943, testified that she signed a union
card and expressed herself as favoring the Union , but that she did not have much
opportunity to talk to other employees in behalf of the Union since she-did not
live in , Hardinsburg. She admitted that work on a machine made her nervous
and that she had requested a non-machine job. It appears that Alexander was
not conspicuously active in behalf of the Union and in view of her late employ-
ment and her inability to operate a machine, it would appear logical that she
would be one of the first group to be discharged.
Helen Frank , employed in January 1943, signed a union card in September and
solicited employees to affiliate with the Union . She was present at the courthouse
on October 5 but attended no union meetings and testified that she never talked to
AMERICAN NEEDLECRAFTS, INC. 1405
the organizers at the customary meeting place at a local restaurant. She was
operator, of a duffle bag machine' at the time of the termination of her employ-
ment on January 7, and testified that she thought Mary Weatherhold, a job in-
structor, ran her machine thereafter. The undersigned is not persuaded that
Frank's activity in behalf of the Union was of such public or outstanding char-
acter that respondent may be assumed to have had knowledge of it and to have
singled her out for discriminatory discharge.
None of the remainder of the 15 employees of War Plant Number 1, named
in the Board's complaint testified, and there is no specific evidence of their
participation in union activities further than the fact that apparently they
signed union authorization cards, and Tivitt's testimony that all of those dis-
charged on or prior to January 7 were active in behalf of the Union. Concern-
ing the termination of the employment of these employees, the respondent gave
generally plausible and persuasive reasons which in the absence of substantial
conflicting testimony are entitled to credit. Tivitt testified that of the some
50 employees of War Plant Number 1, all but about 7 had signed union cards.
It is obvious, therefore, that respondent in effecting a substantial reduction in
its personnel at this plant would normally include some of those who were
affiliated with the Union.
Upon consideration of the entire testimony and record, the undersigned will rec-
ommend that the complaint be dismissed insofar as it alleges the discriminatory
discharge of the following employees of War Plant Number 1: Thelma Compton,
Alberta Poole, Lucille McCoy, Genieve Alexander, Wanda Dawson, Mildred Boes-
hart, Nancy Macey, Venus Gaffney, Alice Mattingly, Arlene Seaton, Minnie Tivitt,
Helen Frank and Margery Nicolas.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in con-
nection with the operations 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
Since it has been found that the respondent has engaged in certain unfair labor
practices, it will be recommended that it cease and desist from such practices,
and, further to effectuate the policies of the Act, it will be recommended that the
respondent post notices stating that it will not engage in the conduct from which
it is recommended that it cease and desist. The respondent's employees will thus
be assured that they may exercise the rights guaranteed by the Act without fear
of interference, restraint, or coercion.
The undersigned has found that on December 31, 1943, the respondent dis-
charged Blanche Tivitt and Pauline Guthrie because of their union affiliation
and activities. Since operations on which these employees were engaged at the
time of their respective discharges, have been discontinued, the usual recom-
mendation of reinstatement to their former or substantially equivalent employ-
ment is omitted. The undersigned will, however, recommend that respondent
make Blanche Tivitt and Pauline Guthrie whole for any loss of pay they may have
suffered by reason of the discrimination against them, by payment to each of
them of a sum of money equal to that which she normally would have earned
from December 31, 1943, the date of discharge, to February 17, 1944, the date on
which the employment of the first job instructor to be discharged subsequent to
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December 31, 1943, was terminated, less her net earnings' luring the said pe-
riod This recommendation is based on the undersigned's belief and finding, that
except for their union affiliation and activities, the employment of Blanche Tivitt
and Pauline Guthrie would have been continued to or about the date upon which
work upon the last of war contracts was completed.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1 United Garment Workers of America, affiliated with the American Federa-
tion of Labor ,' is a labor organization within the meaning of Section 2 ( 5) of the
Act.
2. By interfering with, restraining, and coercing its employees 'in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
3. By discriminating in regard to the hire and tenure of employment of
Blanche Tivitt and Pauline Guthrie, the respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
5. The respondent has not engaged in unfair labor practices by discriminating
in regard to the hire and tenure of employment of Thelma Compton, Alberta
Poole, Erie Nix, Mildred Denham, Lucille McCoy, Genieve Milam, Myrtle Bryan,
Donnie Williams, Genieve Alexander, Mrs. Ed Mercer, Wanda Dawson, Mildred
Boeshart, Nancy Macey, Venus Gaffney, Alice Mattingly, Arlene Seaton, Thelma
Black, Minnie Tivitt, Helen Frank and Margery Nicolas
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned hereby recommends that the respondent , American Needlecrafts, Inc,
its officers , agents, successors , and assigns , shall: -
1. Cease and desist from :
(a) Discouraging membership in United Garment Workers of America , affiliated
with the American Federation of Labor, by discharging or refusing to reinstate
any of its employees , or in any other manner discriminating in regard to their
hire and tenure of employment or any term or condition of employment ;
(b) In any other manner interfering with , restraining , or coercing its employees
in the exercise of the right to self-organization , to form labor organizations , to join
or assist United Garment Workers of America, A. F. L., or any other labor organ-
ization, 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 Act.
13 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for his unlaw-
ful discharge and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiner8
of America. Lumber and Sawmill Workers Union , Local 2590 , 8 N. L. R . B 440 . ' Monies
received for work performed upon Federal , State, county, muniepial , or other work -relief
projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B,
311 U S. 7.
AMERICAN NEEDLECRAFTS, INC. 1407
2. Take the following-affirmative action which the undersigned finds will ef-
fectuate the policies of the Act :
(a) Make whole Blanche Tivitt and Pauline Guthrie for any loss of pay each
may have suffered by reason of the respondent's discrimination against her, by
payment to each of a sum of money equal to that which she normally would have
earned as wages from December 31, 1943, the date of the discriminatory discharge,
to February 17, 1944, less the net earnings 24 of each during the said period;
(b) Post immediately on its bulletin boards, or, if there are no bulletin boards,
in conspicuous places throughout its Hardinsburg, Kentucky, plantso and maintain
for a period of at least sixty (60) consecutive days from the date of posting,
notices-to its employees stating: (1) that the respondent will not engage in the
conduct from which it has been recommended that it cease and desist in para-
graph 1 (a) and _(b) of these recommendations; (2) that the respondent will
take the affirmative action set forth in paragraph 2 (a) of these recommendations;
and (3) that the respondent's employees are free to become or remain members
of United Garment Workers of America, affiliated with the American Federation
of Labor, or any other labor organization of their choice, and that the respondent
will not discriminate against any employee because of membership or activities
in behalf of a labor organization.
(c) Notify the Regional Director for the Fourteenth Regrow in writing within
ten (10) days from the date of the receipt of this Intermediate Report what
steps the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt gf.this Intermediate Report, the respondent notify said Regional Director
in writing that it will comply with the foregoing recommendations, the Na-
tional Labor Relations Board issue an order requiring the respondent to take
the action aforesaid. -
(d) It is recommended that the complaint be dismissed insofar as it alleges
that respondent discriminated in regard to the hire and tenure of employment
of the following: Thelma Compton, Alberta Poole, Erie Nix, Mildred Denham,
Lucille McCoy, Genieve Milam, Myrtle Bryan, Donnie Williams, Genieve Alex-
ander, Mrs Ed Mercer, Wanda Dawson, Mildred Boeshart, Nancy Macey,
Venus Gaffney, Alice Mattingly, Arlene Seaton, Thelma Black, Minnie Tivitt,
Helen Frank, and Margery Nicolas.
As provided in section 33 of Article II of the. Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, any
party or counsel for the Board may within fifteen (15) days from the date
of the entry of the order transferring the case to the Board, pursuant to Section
32 of Article II of said Rules and Regulations, file with the Board, Rochambeau
Building, Washington, D G, an original and four copies of a statement in
writing setting forth such exceptions to the Intermediate Report or to any other
part of the record or proceeding (including rulings upon all motions or ob-
jections) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of ex-
ceptions and/or brief, the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the other parties and shall file a copy with
the Regional Director. As further, provided in said Section 33, should any
party desire permission to argue orally before the Board request therefor must
be made in writing to the Board within ten (10) days from the date of the order
transferring the case to the Board.
WILLIAM E. SPENCER, -
Trial Examiner.
Dated June 23, 1944.
24 See footnote 23, supra.
618683-45-vol. 59-90