Crystal Springs Finishing Company

National Labor Relations Board - Board Decisions

May 27, 1939

12 N.L.R.B. 1291 (N.L.R.B. 1939)

In the Matter of CRYSTAL SPRINGS FINISHING COMPANY and UNITED,
TEXTILE WORKERS OF AMERICA, LOCAL No. 1044
Case No. C-163.-Decided May 27, 1939
Dyeing, Printing, and Finishing Industry-Interference, Restraint, and Co-
ercion-Company-Dominated Union: abortive attempt to initiate and form as
violation of Section 8 (2)-Discrimination: discharge of employee to discourage
union membership-Lock-Out: of employees to discourage union membership-
Unit Appropriate for Collective Bargaining: production employees, excluding
clerical and supervisory employees ; no controversy as to-Representativegg: proof
of choice : comparison of membership cards and pay roll ; election in plant by
employer, no effect upon-Collective Bargaining: failure of employer to grant
conference to avert closing of plant, constituting refusal to bargain collectively
under circumstances; shut-down, effect upon-Reinstatement Ordered: discharged
employee and employees locked out ; dismissing employees hired since lock-out,
if necessary to make room for employees reinstated-Back Pay: awarded to dis-
charged employee; to employees locked out-Complaint: dismissed as to one
employee not employed at time of lock-out.
Mr. Edmund J. Blake, for the Board.
Mr. George S. Mycock, of Freetown, Mass., for the} respondent.
Mr. Mariano S. Bishop, of Fall River, Mass., for the Union.
Mr. A. J. Toth, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Textile
Workers of America, Local No. 1044, herein called the Union, the
National Labor Relations Board, herein called the Board, by A.
Howard Myers, Regional Director for the First Region (Boston,
Massachusetts), issued its complaint, dated December 18, 1936, against
Crystal Springs Finishing Company, Freetown, Massachusetts, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (2), (3), and (5), and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. The complaint and accompanying notice of hearing
were duly served upon the respondent and the Union.
12 N. L. R. B., No. 125.
1291
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices, the complaint alleged in
substance that the respondent discouraged membership in a labor or-
ganization by discriminatorily discharging one employee and dis-
criminatorily locking out and refusing to reemploy 14 others; coun-
seled and advised an employee to organize a labor organization among
its employees; refused to bargain collectively with the Union although
a majority of the respondent's employees in an appropriate unit had
designated the Union as their representative for the purposes of
collective bargaining; and, by the foregoing acts and refusals, inter-
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act. The respondent did not
file an answer to the complaint.
Pursuant to the notice, a hearing was held at Fall River, Massa-
chusetts, on December 28, 1936, before Robert M. Gates, the Trial
Examiner duly designated by the Board. The Board was represented
by counsel and the respondent and the Union by representatives; all
participated in the hearing. Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bearing
on the issues was afforded all parties. At the opening of the hearing
the respondent's motion to dismiss the complaint on the grounds that
the respondent is not engaged in interstate commerce and that the
Union does not represent the persons named in the charges was denied.
During the course of the hearing, counsel for the Board moved to
amend the complaint by striking out allegations of discrimination
against Robert Fitzgibbons, Ernestina Rapoza, and John O'Connor,
named therein. The motion was granted. At the conclusion of the
hearing, the respondent's motion to amend the complaint by striking
out the names of certain employees was denied . The Board has re-
viewed the rulings of the Trial Examiner on the motions and objec-
tions made during the hearing and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
On March 15, 1937, the Trial Examiner filed an Intermediate
Report in which he found that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1), (2), (3), and (5), and Section 2 (6)
and (7) of the Act, and recommended that the respondent cease and
desist therefrom and take certain affirmative action to effectuate the
policies of the Act. He further recommended that the complaint
be dismissed as to Manuel Rapoza of Assonet, Massachusetts,' Wil-
liam Thistlewaite, and Robert Murphy.
On March 27, 1937, the respondent filed exceptions to the Inter-
mediate Report. The Board has considered these exceptions and
'Manuel Rapoza , of Assonet , Massachusetts , is to be distinguished from Manuel
Rapoza , of Fall River , Massachusetts . Both are employees named in the complaint. For
the purposes of clarity herein, the name of the town will be used in conjunction with
the name of the employee concerned.
CRYSTAL SPRINGS FINISHING COMPANY 1293
:ends them without merit. On April 30, 1938, the Board granted
The parties the right to apply for oral argument or permission to
file briefs within 10 days. Oral argument was not requested by the
parties. On May 25, 1938, the Union filed its brief which has been
-considered by the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Crystal Springs Finishing Company, a Massa-
chusetts corporation, is engaged in the business of bleaching, dyeing,
printing, and finishing textile fabrics 2 at its plant in Freetown,
Massachusetts. At least 20 per cent,3 both in volume and value, of
the cloth worked on by the respondent comes from mills located in
States other than Massachusetts.
The plant finishes between 2,500,000 and 3,000,000 yards of cloth
per month. In the course of its business the respondent causes ap-
proximately 25 per cent of the cloth finished by it to be transported
in interstate commerce from its Freetown plant to points outside
Massachusetts. When operating its plant to capacity, the respond-
ent employs approximately 90 persons, most of whom are engaged
in production work in a non-supervisory capacity. At the time of
the hearing there were 81 production employees on the respondent's
pay roll.
H. THE ORGANIZATION INVOLVED
United Textile Workers of America, Local No. 1044, is a labor
organization which, at the time of the hearing, was affiliated with
the American Federation of Labor. The eligibility requirements of
the Union are not clearly disclosed in the record, but it apparently
admits to membership all production employees of the respondent,
including foremen but excluding clerical employees and supervisors
with the power to hire and discharge.
III. THE UNFAIR LABOR PRACTICES
A. The discharge of Manuel Rapoza
The union was organized in respondent's plant during the latter
part of November 1936. On the afternoon of November 30, 1936,
Bishop, a union organizer, and Doolin, an executive member of the
United Textile Workers, met with Guillemette and Fortlouis, the
2 For full discussion of this type of industry and its relationship to interstate com-
merce, see Matter of Martin Dyeing and Fmishing Company and Dyers, Finishers and
Bleachers of America, 2 N. L. R B. 403
s The respondent 's vice president testified that about 20 per cent of its cloth comes
from outside Massachusetts . Its president placed the percentage at about 50.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent's president and vice president, respectively, in the office
of the plant and requested them to bargain collectively with respect
to wage increases. No definite conclusion was reached at this con-
ference, but Guillemette expressed the hope of announcing an in-
crease in wages at a Christmas party planned for the employees.
At the close of the conference, Bishop stated that he would call back
in a week or two for further negotiations.
The following morning, Tuesday, December 1, 1936, at about
8: 30 or 9 o'clock, Manuel Rapoza of Fall River, a machine operator,
was laid off, allegedly for lack of work. Rapoza had been employed
by the respondent as a back tender in the dyeing room. He joined
the Union in November 1936, and was the most active of all the
respondent's employees in fostering its formation. By his distri-
bution, collection, and delivery of union application cards he served
as a contact between the employees and the union office. Garrity, the
foreman directly in charge of the dyeing department, acting on
orders from Guillemette, laid off Rapoza for lack of work, with
instructions to return to work the next day. Shortly thereafter,
Garrity resumed operation of Rapoza's machine and continued to
operate it for several hours. Early in the afternoon because of the
increased volume of work he requested, and obtained from Guille-
rnette, a bleach-house employee to operate the machine. When he
asked Guillemette for additional help, Guillemette inquired whether
"the other fellow" had gone home.
Rapoza left the plant and went to the union office. Bishop, the
same morning, talked to Guillemette over the telephone and asked
when Rapoza would be returned to work. Guillemette replied that
Rapoza had not been discharged but had been laid off for lack of
work, and that he, Guillemette, did not know when Rapoza would
be taken back. At the hearing, Guillemette testified that he had
been unaware of Rapoza's name or his union activities until informed
by Bishop, but admitted that he knew Fortlouis had canvassed the
plant on the afternoon of November 30, 1936, to determine union
membership and sentiment in the plant. This canvass will be dis-
cussed at greater length below. Nor did Guillemette deny on the
witness stand that he made a statement, as testified by Manuel
Rogers, to the effect that Rapoza was discharged for being a union
ringleader.
Guillemette telephoned Bishop at 5 o'clock in the afternoon of
December 1 and complained, with reference to the matter of Rapoza's
employment, that he was going out of business saying : "We can't
make a go of it. I can't fire a man when I want to, so we are going
to just quit the business." If the respondent's contention that
Rapoza was laid off for lack of work were true, and if Garrity's
instruction to Rapoza to return the next morning was given in good
CRYSTAL SPRINGS FINISHING COMPANY 1295
faith it seems probable that Guillemette would have informed Bishop
that Rapoza would be reemployed the following morning or at least
as soon as work warranted, and would not have referred to the inci-
dent as one involving his ability to "fire a man." Moreover, it is
difficult to believe that Rapoza would have complained to Bishop
at all if he had understood that his lay-off was to last only 1 day,
as testified by Garrity.
On the afternoon of the day of Rapoza's discharge, employees
in the folding department, whom Guillemette had called together,
questioned him in regard to the reinstatement of Rapoza. Guille-
mette replied that Vapoza could not be reinstated because "he had
done some bad work." This statement is in direct conflict with the
respondent's claim that Rapoza was laid off because of lack of work.
Moreover, there is no evidence of bad work by Rapoza at the time
his employment terminated. It is clear that Rapoza was actually
discharged for his participation in the efforts of the respondent's
employees to become members of the Union.
We find that by discharging and refusing to reinstate Manuel
Rapoza of Fall River, Massachusetts, the respondent discriminated
in regard to his hire and tenure of employment, thereby discourag-
ing membership in the Union and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
B. The refusal to bargain collectively
1. The appropriate unit
The complaint alleges that the employees in the production depart-
ments of the respondent's plant constitute a unit appropriate for the
purposes of collective bargaining. The unit set forth is the normal
production unit. At the hearing the respondent raised no objection
to the unit designated, and the record discloses no reason for altering
it. Accordingly, we find that the production employees of the re-
spondent, excluding supervisory and clerical employees, constitute
a unit appropriate for the purpose of collective bargaining and that
said unit will insure to employees of the respondent the full benefit
of their right to self-organization and otherwise effectuate the policies
of the Act.
2. Representation by the Union of a -majority in the appropriate unit
The respondent's pay roll of November 28, 1936, in evidence, dis-
closes that there were 81 production employees within the appropriate
unit on that date. The Union introduced into evidence 51 signed
application cards authorizing the Union to represent the signers. At
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hearing, the respondent waived its right to examine the cards but
objected to the printed signatures on two of them. The names on
three other of the cards do not appear on the respondent's pay roll.
Of the remaining 46 cards, all of which bear naives of employees
within the appropriate unit, 30 are dated in November 1936, and
16 have no date. No question was raised by the respondent at the
hearing respecting the right of the Union to represent the signers
of these cards. Moreover, on the afternoon of November 30, 1936,
Fortlouis, vice president of the respondent, made a canvass of the
plant to determine the union membership of the employees. Fortlouis
questioned each employee individually as to hiss affiliation with the
Union, noting the answer of each employee on a paper he was carrying.
After making this canvass, Fortlouis told William Thistlewaite, an
employee named in the complaint, that 82 per cent of the employees
had joined the Union. It thus appears that on November 30, 1936,
the Union had been designated by a majority of the respondent's
employees as their bargaining agent.
The respondent introduced evidence indicating that at the time
of an election sponsored by it and held at the plant on December 7,
1936, the Union no longer represented its employees. During the
week preceding December 7, as will be seen, the respondent engaged
in a number of unfair labor practices directed against the Union:
Moreover, as we have stated :
Our experience has shown that the sponsorship of an election
by the employer, the conduct'of it in his plant during the cus-
tomary working hours with supervisory officials present, and the
possibility, doubtless known to the employees, of hidden identifi-
cation marks on the ballots, can cause employees to vote as they
believe the employer desires. Therefore, even if the mechanics
of the ballot are not impeached and even if the election is not
motivated by any desire of the employer to aid one union and
discourage another, we cannot rely upon the results of an election
conducted by an employer as an accurate and independent ex-
pression by the employees of their free choice of representatives 4
Under the circumstances, the election does not evidence the free
choice of the employees, but reflects their coerced acquiescence in the
respondent's will. We shall accordingly disregard such defections
from the Union as the election indicates.
We find, therefore, that on and after November 30, 1936, the Union
was designated and selected by a majority of the respondent's em-
ployees in an appropriate unit for the purposes of collective bargain-
4 Matter of J. Wiss & Sons Company and United Electrical, Radio and Machine Workers
of Amertca (010), 12 N. L. R. B. 601.
CRYSTAL SPRINGS FINISHING COMPANY 1297
ing, and that, pursuant to Section 9 (a) of the Act, it was the exclusive
representative of all the employees in such unit for the purposes of
collective bargaining.
3. The refusal to bargain
As has been stated, a meeting between union officials and representa-
tives on November 30 ended inconclusively . On the following day,
after talking to Guillemette concerning the discharge of Manuel Ra-
poza of Fall River , Bishop made several unsuccessful attempts to
reach Guillemette by telephone . At about 5 o'clock Guillemette called
Bishop. In response to a request to reinstate Rapoza, Guillemette
said he was going to quit business , pay off all employees , and liquidate
the plant , saying, "We can't make a go of it. I can't fire a man when
I want to, so we are going to just quit the business ." Bishop asked
Guillemette for a conference to avert the closing of the plant . Guille-
mette replied that he could not go on , that an auditor was in the office,
and that checks were being signed with which to pay off the em-
ployees. He finally agreed to call Bishop in the evening, but failed
to do so . No conference was held.
It is apparent that, confronted with the Union's request to bargain
on November 30, the respondent at once launched an anti-union cam-
paign. On the succeeding day it discharged Rapoza for union ac-
tivities . To a request to reinstate Rapoza it countered with a threat,
later proved false, that it would cease operations . When the Union's
representative sought to discuss, for the purpose of averting, the
threatened dissolution , the respondent 's president evaded a direct
refusal, but failed to grant the requested meeting. The behavior of
the respondent 's president constitutes a refusal on part of the respond
ent, to bargain collectively.
We find that the respondent on December 1, 1936, refused to bar-
gain collectively with the United Textile Workers of America, Local
No. 1044, as the representative of its employees in respect to rates of
pay, wages, hours of employment , or other conditions of employ-
ment and thereby interfered with, restrained , and coerced its em-
ployees in the exercise of their right to self-organization and collec-
tive bargaining through representatives of their own choosing as
guaranteed in Section 7 of the Act.
C. The lock-out
The complaint , as amended at the hearing by the striking of al-
legations of discrimination against Robert Fitzgibbons , Ernestina
Rapoza, and John O'Connor, alleges that on December 2, 1936, the
respondent discriminatorily locked out Mary Combra, Sadie Combra,
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Georgianna Combra, William Thistlewaite, Harry Tubby, James
McHale, Robert Murphy, Manuel Rogers, Joseph Rapoza, Charles
Perry, and Manuel Rapoza of Assonet, Massachusetts, because of their
union membership and activities. All of said employees 5 joined
the Union in November 1936.
Early in the afternoon of December 1, Garrity, foreman of the
dye room, discharged Rogers and Perry, telling Perry, "Everybody is
getting through tonight." The two men went to the respondent's
office for their checks and found that all the time cards had been
removed from their accustomed places in the card rack.
At 5: 15 the same afternoon, 3 clays before the regular plant pay
day, all the employees were paid off. Upon receiving their checks, the
employees were given to understand that the plant was being closed
and that they were all discharged. Guillemette's parting words as
they received their pay and left the plant were, "No hard feelings."
Notwithstanding the pay-off, the plant opened as usual the next
morning at 7 o'clock. Most of the employees were gathered about the
plant entrance. Guillemette asked some of them to return to work;
Fortlouis brought others to the plant in his automobile. Within the
next few days most of the employees, except those named in the com-
plaint, had returned to work.
When asked at the hearing, whether he sent for any of the workers,
Guillemette answered, "I didn't send for anyone personally," and
when asked whether he made any public statement to the effect that
the workers who were out could stay out, he testified, "As far as I
was concerned, I wasn't going out for them. If anyone wants to
work there they can apply for their jobs, but I don't go around call-
ing on them and asking them to work for me." Guillemette, however,
did not deny the following testimony of Mary Combra, an employee
named in the complaint : "Mr. Guillemette told me on Wednesday
morning that we were fired. He came out and we were all in a
bunch, and he came out and got two `double girls' that was with me.
The girls said they wouldn't go in. He told me he would pick any-
body he felt like because he fired us on Tuesday night." Further evi-
dence of the respondent's favoritism and discrimination in rehiring
employees was given by Mrs. Theresa Cordoza, a witness for the
respondent, who testified that Mr. Mycock, the employment manager,
called at her home on Tuesday evening, December 1, to ask her to
return to work the following morning.
On December 19, 1936, there were 81 production employees on its
pay roll, the same number that were employed on November 28, 1936,
the pay-roll date preceding the lock-out. It thus appears that the
6 At the hearing, the respondent challenged the union membership of Manuel Rapoza of
Assonet, Massachusetts Inasmuch as the complaint is hereinafter dismissed as to him,
it is unnecessary to resolve this question.
CRYSTAL SPRINGS FINISHING COMPANY 1299
respondent hired outside help to replace the employees locked out.
Guillemette testified regarding the locked-out employees : "their places
have been filled."
Mrs. Theresa Cordoza and James Garrity, who appeared as wit-
nesses for the respondent, testified that on their return to work they
dropped out of the Union. Although they refused to admit that the
respondent required them to drop their membership in the Union,
Garrity stated that it was his understanding that he would be quitting
the Union when he returned to work, and Mrs. Cordoza testified that
'she felt she had better get out of the Union when she went back
to work.
The respondent asserted that on December 1, it had determined to
close the plant and advanced several reasons for its alleged decision.
Guillemette testified that he was going to close the plant because the
auditors had given a very unsatisfactory statement of the operations,
production having fallen off during the last 2 weeks of November
'because of a lot of bad work, and because bad conditions in the
plant rendered it useless to try to continue. No other proof of a
drop in production was made by the respondent, nor does the re-
spondent's pay roll of December 19, 1936, vary from its pay roll of
November 28, 1936, in the number of its employees. No previous
complaint had been made by the respondent about bad work. More-
over, at the first conference between the respondent and the Union,
'Guillemette stated that he was planning to give the employees a
'Christmas party and expressed the hope of announcing an increase
in wages at that time. In the light of this evidence and of the fact
that the plant actually continued to operate we do not believe that
the respondent considered closing its plant for the reasons stated by it.
The respondent asserts also that it determined to cease operations
in part because the Union threatened to call a strike unless Rapoza
was reinstated. We find, however, that the respondent had no bona
'fide intention of permanently closing its plant and that it paid off
its employees on December 1, 1936, solely in order to discourage their
efforts at collective bargaining.
Although Manuel Rogers and Charles Perry were discharged and
paid off during the early part of the afternoon of Tuesday, December
1, Garrity's remark to Perry to the effect that everyone would be
dismissed on that day suggests that their discharge was part and
parcel of the respondent's intimidatory lock-out. Garrity gave no
reason for the discharge of either man. At the hearing, he testified
that he discharged both Perry and Rogers on unexplained orders from
Fortlouis. Fortlouis testified that Perry and Rogers were discharged
because "they 'were originally on a job and they walked into another
iroom and they were standing around, and the attitude they took when
1691L34-39-vol. 12-83
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I wanted to know why they were not working was not satisfactory to
me." He added that at that time they gave him "back talk," but did
not indicate its nature.
Moreover, at the time the men were being paid off on December 1,
1936, Fortlouis spoke to Rogers about the formation of a union where-
in Fortlouis would represent the workers. Fortlouis requested
Rogers to approach other employees to find out whether they would
join a "company union." It is unreasonable to suppose that an em-
ployee who had been fired earlier in the day because he had given
"back talk" would have been selected by Fortlouis for the purpose
indicated unless the latter believed him to be a leader in the union
movement. The contention of the respondent that Rogers and Perry
were discharged for cause is without merit. We find that the respond-
ent locked them out.
Perry applied for work on December 2, 1936, the day following his
discharge, but the employment manager, Mr. Mycock, told him
"nothing doing."
Under all the circumstances of the case, including the absence of a
serious intention on the part of the respondent, prior to the Union's
attempt to bargain, to abandon the operation of its plant, we conclude
that in locking out its employees and pretending to close its plant, the
respondent was motivated not by financial considerations but by a
desire to crush the new union.
The Trial Examiner recommended dismissal of the complaint with
respect to Manuel Rapoza of Assonet, Massachusetts, William Thistle-
waite, and Robert Murphy.
Manuel Rapoza of Assonet, was not in the employ of the respondent
on December 1, 1936, and, consequently, was not locked out on that
day. The complaint will be dismissed as to him.
William Thistlewaite and Robert Murphy testified at the hearing
that they no longer desire to work for the respondent. It appears
that on or about December 12, 1936, each refused reinstatement to his
former position. Each was, however, among the employees locked
out on December 1, and the Trial Examiner erred in his recommenda-
tion that the complaint be dismissed as to them.
We find that the respondent paid off its employees on December 1,
1936, because they had joined the Union and engaged in union activi-
ties, and upon resuming operations the next day, locked out and re-
fused to reinstate Mary Combra, Georgianna Combra, Sadie Combra,
Harry Tubby, James McHale, Joseph Rapoza, William Thistlewaite,
Robert Murphy, Manuel Rogers, and Charles Perry, in order to dis-
courage their membership in the Union and to avoid its obligation to
bargain collectively with the Union. By its conduct the respondent
has discriminated in regard to the hire and tenure of employment of
CRYSTAL SPRINGS FINISHING COMPANY 1301
its employees, thereby discouraging membership in the Union, and
interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
D. The attempt to form an inside union
The complaint alleges that the respondent, by its vice president,
Fortlouis, counseled and advised Manuel Rogers, an employee, to,
organize a shop or company union among its employees. The evi-
dence in this respect is that Fortlouis encouraged the formation of a
company union on two occasions. About 5 p. m. on December 1, 1936,
the date the respondent announced the closing of its plant and dis-
charged all its employees, Fortlouis approached Harry Tubby, while
he and others were waiting for their pay, and asked him to form a
company union. Tubby answered, "Nothing doing." At about the
same time, Fortlouis called Rogers into his office and asked him to
find out whether the other employees would join a company union.
In compliance with this request, Rogers asked three or four em-
ployees, and on receiving negative replies reported to Fortlouis that
"they did not like the idea." Fortlouis admitted at the hearing that
he suggested the formation of a union with himself as the representa-
tive of the employees, but contended that this suggestion was made in
a jocular way. Fortlouis admitted talking to Manuel Rogers and
denied only the use of the word "company" with reference to the
union suggested. It is significant to note that these approaches were
made on the day following the Union's first attempts at collective bar-
gaining. Although there is no evidence that a labor organization was
in fact organized as a result of this suggestion, it is apparent that the
respondent attempted to initiate a labor organization among its em-
ployees, and that it was unsuccessful because of the firmness of its
employees.
On December 7, 1936, a few days after the lock-out, the respond-
ent conducted an election among its employees in the office of its
plant. It prepared the ballots, arranged all the details for the elec-
tion, and obtained the services, without cost, of three members of
the Board of Selectmen of Freetown, Massachusetts, to supervise the
balloting. The record gives no indication of what advance announce-
ment was made of the election to the employees, or that the Union
and its officials were notified that it would be held.
Mark H. Richmond, the chairman of the Board of Selectmen,
testified that the election was held by secret ballot in the manner
of most town elections. The election took place in the office of the
plant. All of the employees assembled at the door of the office and
were admitted two at a time to mark their ballots. Richmond testi-
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fled that officials of the respondent may have been in and out of the
office during the balloting, but none of them remained there any
length of time. The ballots were counted by the Board of Selectmen
at the conclusion of the election. There were 65 ballots cast, 3 of
which were blank.
The testimony of Richmond indicates that three questions pro-
pounded by the ballots and calling for a "yes" or "no" answer were
voted on as follows :
Yea No
Do you want to join a union ?___________________________ 4 58
Do you want to join the UTW?__________________________ 1 45
Do you want to join a company union? _ ------------------ 20 32
The result of the election indicates the success of the respondent in
causing its employees to abandon the Union upon their return to
work. The questions submitted to the employees, moreover, taken
in connection with the attempts made to persuade Tubby and Rogers
to initiate an inside union, indicate that the respondent attempted
to promote such an organization among its employees.
As we have previously stated : 6
In our opinion, Section 8, subdivision (2) of the Act forbids
domination or interference not only where it is successful, and
a labor organization is actually formed, but also makes it an
unfair labor practice where the domination or interference is
unsuccessful. In this case, the respondent was unsuccessful
because of the firmness of its employees. Since the Act is
remedial, it is appropriate to require the respondent to cease
and desist from unfair labor practices which may, at some
future time, be more successful.
We find that the respondent dominated and interfered with the
formation of a labor organization, and, by such acts, interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
BMatter of Canvas Glove Manufacturing Works, Inc. and International Glove Makers
Union, Local No. 88, 1 N. L R. B 519; Matter of Millfay Manufacturing Company, Inc.
and American Federation of Hosiery Workers, Branch 40, 2 N. L. R. B. 919.
CRYSTAL SPRINGS FINISHING COMPANY
V. THE REMEDY
1303
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies
of the Act and to restore as nearly as possible the situation that ex-
isted prior to the commission of the unfair labor practices.
We have found that the respondent discriminatorily discharged
Manuel Rapoza of Fall River, Massachusetts, and discriminatorily
locked out and refused to reemploy Mary Combra, Georgianna
Combra, Sadie Combra, Harry Tubby, James McHale, Joseph
Rapoza, William Thistlewaite, Robert Murphy, Charles Perry, and
Manuel Rogers.
At the hearing, the respondent offered to place some of the em-
ployees mentioned in the complaint on a preferential list for
employment as the occasion arises. Such action does not, however,
operate as an offer of reinstatement where, as here, the respondent,
at the time of the hearing, had not reduced its force but had hired
new employees to replace those it locked out. Accordingly we shall
order the respondent to reinstate all the above-mentioned employees,
except William Thistlewaite and Robert Murphy, who do not desire
reinstatement, to their former positions without prejudice to their
seniority and any other rights and privileges, dismissing, if necessary
to provide employment for those to be offered reinstatement, all
employees hired since the lock-out.
We shall order the respondent to make the above-named employees
whole for any loss of pay they have suffered by reason of their dis-
charge by payment to each of them of a sum equal to the amount
which each normally would have earned as wages from December 1,
1936, to the date of the respondent's offer of reinstatement,? less the net
earnings 8 of each during said period.
We have found that the respondent refused to bargain collectively
with the Union. In order to effectuate the policies of the Act, we
shall order the respondent, upon request, to bargain collectively with
4 December 12, 1936, in the cases of Thistlewaite and Murphy.
8 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 else-
where than for the respondent which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amertica,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for
work performed upon Federal , State, county , municipal , or other work-relief projects are
not considered as earnings but, as provided below in the Order, shall be deducted from the
sum due to the employee , and the amount thereof shall be paid over to the appropriate
fiscal agency of the Federal , State, county , municipal , or other government or govern-
ments which supplied the funds for said work -relief projects.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union in respect to rates of pay, wages, hours of employment,
and other conditions of employment.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following:
CONCLusIONs OF LAW
1. United Textile Workers of America, Local No. 1044, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. The respondent, by discriminating in regard to the hire and
tenure of employment of Manuel Rapoza of Fall River, Massachu-
setts, Mary Combra, Sadie Combra, Georgianna Combra, Harry
Tubby, James McHale, Manuel Rogers, Joseph Rapoza, Charles
Perry, William Thistlewaite, and Robert Murphy, thereby discour-
aging membership in United Textile Workers of America, Local
No. 1044, has engaged in and is engaging in an unfair labor practice,
within the meaning of Section 8 (3) of the Act.
3. The production employees of the respondent, excluding clerical
and supervisory employees, constitute a unit appropriate for the
purposes of collective bargaining, within the meaning of Section
9 (b) of the Act.
4. United Textile Workers of America, Local No. 1044, was on
November 30, 1936, and at all times thereafter has been, the exclusive
representative of all employees in such unit for the purposes of
collective bargaining, within the meaning of Section 9 (a) of the Act.
5. The respondent, by refusing to bargain collectively with United
Textile Workers of America, Local No. 1044, as the exclusive repre-
sentative of its employees in an appropriate unit, has engaged in
and is engaging in unfair labor practices, within the meaning of
Section 8 (5) of the Act.
6. The respondent, by dominating and interfering with the for-
mation of a labor organization of its employees, has engaged in
and is engaging in unfair labor practices, within the meaning of
Section 8 (2) of the Act.
7. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
,of the Act.
9. The respondent has not discriminated in regard to the hire and
tenure of employment of Manuel Rapoza of Assonet, Massachusetts.
CRYSTAL SPRINGS FINISHING COMPANY 1305
ORDER
Upon the basis of the above findings of fact and the conclusions
of law, and pursuant to Section 10 (c) of the National Labor Re-
lations Act, the National Labor Relations Board hereby orders that
the respondent, Crystal Springs Finishing Company, Freetown, Mas-
sachusetts, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Textile Workers of Amer-
ica, Local No. 1044, or any other labor organization of its employees,
by discriminating in regard to hire or tenure of employment or any
term or condition of employment;
(b) Refusing to bargain collectively with United Textile Workers
of America, Local No. 1044, as the exclusive representative of all
its production employees, excluding clerical and supervisory em-
ployees;
(c) Dominating or interfering with the formation or adminis-
tration of any labor organization of its employees; or from attempt-
ing to do so;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
-certed activities for the purpose of collective bargaining and 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) Offer to Manuel Rapoza of Fall River, Massachusetts, Mary
Combra, Sadie Combra, Georgianna Combra, Harry Tubby, James
McHale, Manuel Rogers, Joseph Rapoza, and Charles Perry immedi-
ate and full reinstatement to their former positions without prejudice
to their seniority or other rights or privileges previously enjoyed by
them, dismissing, if necessary to provide employment for those to be
offered reinstatement, all employees hired since December 1, 1936;
(b) Make whole said Manuel Rapoza of Fall River, Massachusetts,
Mary Combra, Sadie Combra, Georgianna Combra, Harry Tubby,
James McHale, Manual Rogers, Joseph Rapoza, and Charles Perry,
for any loss in pay they have suffered by reason of the respondent's
discriminatory conduct, by payment to each of them of a sum of
money equal to that which each would normally have earned as wages
from December 1, 1936, the date of the respondent's discriminatory
conduct, to the date of the offer of reinstatement, less his net earn-
ings during such period; deducting, however, from the amount other-
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wise due to each of said employees, monies received by said employees
during said period for work performed upon Federal, State, county,
municipal, or other work-relief projects, and pay over the amount so,
deducted to the appropriate fiscal agency of the Federal, State, county,
municipal, or other government or governments which supplied the
funds for said work-relief projects;
(c) Make whole William Thistlewaite and Robert Murphy for any
loss of pay they have suffered by reason of their lock-out by payment
to each of them of a sum of money equal to that which he normally
would have earned from December 1, 1936, the date of the lock-out,
to December 12, 1936, the date of his refusal to accept the respondent's
offer of reinstatement, less his net earnings during such period; de-
ducting, however, from the amount otherwise due to each of said
employees, monies received by said employees during said period for
work performed upon Federal, State, county, municipal, or other
work-relief projects, and pay over the amount so deducted to the
appropriate fiscal agency of the Federal, State, county, municipal, or
other government or governments which supplied the funds for said
work-relief projects;
(d) Upon request, bargain collectively with United Textile Work-
ers of America, Local No. 1044, as the exclusive representative of its
production employees, exclusive of clerical and supervisory employees,
concerning wages, rates of pay, hours of employment, and other con-
ditions of employment;
(e) Post immediately in conspicuous places within and without.
its plant, notices to its employees stating (1) that the respondent will
cease and desist in the manner aforesaid, and (2) that it will take.
the afore-mentioned affirmative action;
(f) Maintain such notices for a period of sixty (60) consecutive
days from the date of posting;
(g) Notify the Regional Director for the First Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, as amended, be, and
it hereby is, dismissed in so far as it alleges that the respondent has
engaged in unfair labor practices within the meaning of Section 8 (3)
of the Act with respect to Manuel Rapoza of Assonet, Massachusetts.