Ely & Walker Dry Goods Co.

National Labor Relations Board - Board Decisions

May 12, 1942

40 N.L.R.B. 1262 (N.L.R.B. 1942)

In the Matter of ELY & WALKER DRY GOODS COMPANY and AMAL-
GAMATED CLOTHING WORKERS OF AMERICA, AFFILIATED WITH) THE
CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. C-30:1.-Decided May .1,?, 191;2
Jurisdiction : garment manufacturing, Industry.
Unfair Labor Practices
Company-Dominated-Union; Interference, Restraint, and Coercion: participation
of supervisory employees in formation and administration of "inside" union
for express purpose of defeating "outside" union,; concurrent acts favoring
"inside" union and manifesting hostility to "outside" union; encouragement
of employees to heed anti-union counsels of businessmen's organization ;
questioning and intimidating employees endeavoring to form "outside" union.
Remedial Orders : disestablishment of dominated organization ordered.
Mr. L. N. D. Wells, Jr., and Mr. Wallace Cooper, for the Board.
Messrs. Bryan, Cave, Williams & McPheeters, by Mr. R. H.
McRoberts and Mr. Henry Davis, of St. Louis, Mo., for the respondent.
Mr. Joseph A. Lennon and Mr. Richard Brazier, of St. Louis, Mo.,
and Mr. David M. Schlossberg, of New York City, for the Amal-
gamated.
Mr. John W. Noble and Mr. Arthur R. Goodman, of Kennett, Mo., for
the K. S. U.
Mr. Langdon R. Jones, of Kennett, Mo., for the Committee of Seven.
Mr. Armin Uhler, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On an amended charge 1 duly filed on !July 30,1941, by Amalgamated
Clothing Workers of America, affiliated with the Congress of Industrial
Organizations, herein called the Amalgamated, the National Labor
Relations Board, herein called the'Board, by the Regional Director
for the Fourteenth Region (St. Louis, Missouri), issued its complaint
dated July 30, 1941, against Ely & Walker Dry Goods Company, St.
' The original charge was filed on June 28, 1941.
40 N L. R P, , No 225,
1262
ELY & WALKER DRY GOODS-COMPANY 1263
Louis, Missouri , herein called the respondent , alleging that the respond-
ent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (2) 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 , the Amalgamated , and Kennett
Shirtmakers Union , herein called the K. S. U.
Concerning the unfair labor practices , the complaint alleged in sub-
stance that, the respondent ( 1) since March 1937 had induced certain
citizens and two civic organizations , the Kennett Business and Profes-
sional Association and the "Committee of Seven ," of Kennett , Missouri,
to coerce and restrain the respondent 's employees from joining or
assisting the Amalgamated or any other affiliated labor organization
or from exercising the rights guaranteed in Section 7 of the Act; (2)
from about June 7,-1941, had discouraged membership in the Amal-
gamated by threats to close the plant and transfer the operations else-
where, by threats of discharge or discrimination , and by disparaging
and exhibiting hostility toward the Amalgamated and its activities;
and (3) on or about June 30, 1941, formed and sponsored the K. S. U.
and thereafter dominated and interfered with its administration and
contributed support thereto.
On August 19, 1941 ; the respondent filed its answer denying the
commission of any unfair labor practices . The K . S. U. filed an an-
swer on August 18, 1941, denying that the respondent had dominated,
interfered with, or contributed support to that organization. On
August 21 , 1941, the last day of the hearing referred to below, J. A.
Hemphill, Harry Putnam, E. K. Striegel , Jr., J. C. Mills, R. Irl Jones,
A. Riggs, Jr., and Paul Slicer, business and professional mien of Ken-
nett, Missouri , constituting , and herein referred to as, the Committee
of Seven, applied for leave to intervene on behalf of themselves and
of "other citizens and businessmen and women of the town of Kennett,
Missouri , and the Kennett Business and Professional Men's Associa-
tion, . . . to the extpt that they be permitted to offer testimony in
this cause relative to their connection with, and motives in , the par-
ticipation of the events and happenings that have been referred to
in the evidence ." This application was granted by the Trial Examiner
for the limited purpose stated in the application and with the under-
standing that the proceedings before had and stipulations entered into
would not be affected or prejudiced by such intervention . Together,
with its said application the Committee o f Seven filed an answer deny-
ing that it had represented the respondent or that it had coerced oi;
restrained the r,espondeut's employees.
Pursuant to notice , a hearing was held at Keiinett, - Missouri, on
August 18, 19, 20, and 21 , 1941, before Charles ,E. Persons , the Trial
Examiner duly designated by the Chief Trial Examiner'. The Board,
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent, the K: S. U., and the Committee of Seven were repre-
sented by_ counsel, and the Amalgamated by counsel and an official
representative.' All parties participated in the hearing and were af-
forded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. During
the hearing the Trial Examiner denied the motions of the K. S. U. and
the respondent to strike specified testimony of certain witnesses.2
At.the close of the hearing the foregoing motions of the respondent
and the K. S. U. to strike certain testimony were renewed and the
Committee of Seven joined therein. The Trial Examiner reserved
ruling and denied the motions in his Intermediate Report. The re-
spondent further moved that the Trial Examiner "make a finding ex-
onerating and discharging the respondent" because of asserted failure
of proof. The Committee of Seven moved to strike from the com-
plaint all "allegations pertaining to the Committee of Seven and other
businessmen and affiliated organizations of Kennett, including the
Kennett Business & Professional Men." The K. S. U. moved to strike
the portions of the complaint alleging that it was dominated by the
respondent and also moved that all testimony offered in support of
these allegations be stricken from the record. The Trial Examiner
reserved ruling on all these motions and denied them in his Inter-
mediate Report insofar as they were inconsistent with the findings and.
recommendations made therein. During the course of the hearing the
Trial Examiner made rulings on various other motions and on objec-
tions to the admission of evidence. The Board has reviewed these
rulings and finds that no prejudicial errors were committed. The
rulings of the Trial Examiner, except as noted below, are hereby
afrmed.3 '
Subsquent to the hearing, counsel for the Board, the respondent, and
the K. S. U. filed briefs with the Trial Examiner. Pursuant to a
stipulation entered into by all parties, the Trial Examiner, on Sep-
tember 17, 1941, ordered that certain corrections be made in the tran-
script of testimony.
On December 12, 1941, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties, in which
he found that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
2 These motions referred to testimony concerning an assault upon an Amalgamated or-
ganizer and certain activities of Kennett businessmen.
8 During the bearing the Trial Examiner excluded evidence offered by the K. S. U. for the
purpose of impeaching the testimony of Roscoe Law. In evaluating Law's testimony we
have considered the proffered evidence that Law pleaded guilty to a charge of operating
a motor vehicle while intoxicated The Trial Examiner rejected Board Exhibit No. 12, a
letter from the Regional Director advising the respondent that charges alleging that the
K S. U. was a dominated organization had been filed. We hereby reverse this ruling and
make Board Exhibit No. 12 part of the record herein.
ELY & WALKER DRY GOODS COMPANY 1265
Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. He
accordingly recommended that the respondent cease and desist there-
from, that it withdraw all recognition from and completely disestab-
lish the K. S. U. as a representative of its employees for the purpose
of collective bargaining, and that it post appropriate notices.
Thereafter the respondent, the K. S. U., and the Committee of
Seven filed with the Board exceptions to the Trial Examiner's Inter-
mediate Report and briefs in support thereof. On February 24, 1942,
oral argument was had before the Board in Washington, D. C. The
respondent and the Amalgamated were represented by counsel and
participated therein.
The Board has considered the exceptions and briefs and, insofar as
the exceptions are inconsistent with the findings, conclusions, and
order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a Missouri corporation having its principal office
and place of business at St. Louis, Missouri, is engaged in the manu-
facture, sale, and distribution of cotton-cloth garments,. leather goods,
and wearing apparel, and maintains several plants located in the
States of Missouri, Arkansas, and Illinois. This proceeding is con-
cerned only with operations at the respondent's Kennett, Missouri,
plant, where it manufactures men's dress shirts.
The chief raw materials used in the manufacturing processes at the
Kennett plant include cloth, thread, buttons, and boxes. Approxi-
mately 5 million yards of cotton cloth are used annually at the Ken-
nett plant, substantially all of which is shipped to the plant from
points outside the State of Missouri. Approximately 200,000 dozen
men's dress shirts are produced annually at the Kennett plant, more
than 75 percent of which are shipped to points outside the State of
Missouri. The respondent admits that in its operations at Kennett,
Missouri, it is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Amalgamated Clothing Workers of America is a labor organization
affiliated with the Congress of Industrial Organizations. It admits
to membership employees of the respondent.
Kennett Shirtmakers Union is an unaffiliated labor organization
admitting to membership employees of the respondent.
455771-42-vol. 40--S 0
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Background and chronology of events
In 1923 the respondent and the townspeople of Kennett, a city with
a population of about 6,000, entered into an agreement whereby the
respondent was to operate a plant at Kennett on land and in a building
to be furnished by the townspeople. The parties agreed, respectively,
to furnish and to employ not less than 200 "competent female opera-
tors." It was further agreed that the land and premises would be
conveyed to the'respondent upon proof of wage payments aggregating
$500,000. Pursuant to this agreement a plant was erected which,
according to a supplemental agreement, was later enlarged for the
purpose of enabling the respondent to expand its operations.- In 1930
the citizens of Kennett conveyed the plant and premises to the re-
spondent. Subsequently the respondent, at its own expense, further
expanded its Kennett plant and operations. At the time of the hear-
ing it employed approximately 600 employees. The respondent's
plant is the principal manufacturing business of Kennett.
In March 1937 the respondent's employees at Kennett, who were not
then organized, engaged in a series of spontaneous sit-down strikes in
protest against a reduction in wages. Although the respondent ad-
justed'the dispute by restoring the rates existing prior to the reduction,
it closed the plant on March 19 and, in effect, discharged all employees,
who then numbered about 800. Thereupon a group of Kenneth busi-
nessmen conferred with the respondent's president, E. P. Cave, at
St. Louis, with respect to the cessation of operations. At Cave's sug-
gestion, the businessmen , through a committee appointed for that
purpose, circulated a questionnaire among the employees to ascertain
their attitude regarding a resumption of operations. Over 600 em-
ployees replied affirmatively to the following questions: (1) whether
they desired the committee to act on their behalf, (2) whether they
would work at the restored wage scale and under conditions existing
at,the time of the shut-down, and (3) whether they desired a commit-
tee of the Kennett Business and Professional Association to receive
future suggestions "for the' welfare of'both employer and employee."
The committee communicated the results of the questionnaire to the
respondent, which reopened the plant oil April 5, 1937.
The first organizational activity among the employees of the re-
spondent at its Kennett plant occurred during the early part of June
1941.4 A-sniall group of about 16 or 20 employees met on June 6, and
again on June 11, 1941, to discuss organization of the I[eniett plant.
The group received advice from an organizer for the Congress of
4 Except as otherwise noted the following recited facts are ba4ed upon ' undisputed
evidence
ELY & WALKER DRY GOODS COMPANY 1267
Industrial Organizations 5 who also furnished a supply of C. I. O.
membership cards. Subsequently, 25 such cards, signed by employees
at the respondent's Kennett plant, together with a request for organ-
izational assistance , were forwarded to C. I. O. headquarters in Wash-
ington, D. C. Since the employees in the respondent' s business come
within the jurisdiction of the Amalgamated, the cards and request
were transmitted to the Amalgamated's St. Louis, Missouri , office.
From there 2 organizers, Richard Brazier and Griselda Kuhlman,
proceeded to Kennett on June 23, 1941, with instructions'"to further
the organization of the plant." Organizational meetings were con-
ducted by these organizers on June 24 and 25, 1941, with approxi-
mately 35 and from 60 to 75 employees present, respectively. The
meeting of June 25, at which Amalgamated membership cards were
circulated and signed, was, attended by 2 policemen sent by Mayor
Cash of Kennett "to see what was going on." On the morning of
June 26, 1941, the mayor, sheriff, and city marshal issued a proclama-
tion taking note of the organizational activities and announcing that
they would extend their official protection to "any persons who are
intimidated, threatened or coerced in their employment," since they
had been advised of threatening statements that had been made to
employees of the respondent for the purpose of coercing them "to join
certain organizations against their judgment, wishes and desires." a
That evening Mayor Cash, having been asked to come to the hotel
where Brazier and a number of the Amalgamated sympathizers were
assembled, was informed that no threats had been made and that it
was the Amalgamated's intention to conduct the campaign "in a
strictly legal manner." In the meantime, a further public meeting
arranged by the 2 Amalgamated organizers had been held during the
Heremaftei called the C 1 0
This proclamation was published in the local "Dunklin Democrat" on Friday , June 27,
1941, and is as follows
OFFICERS ISSUE PROCLAMATION ON LABOR SITUATION
Whereas, it has been brought to the attention of the officials of the City of Kennett and
officers of Dunkhn County that thicatenmg statements have been made to employees of Ely &
Walker shirt ' factory and other employees of other firms , with the idea of • influencing,
intimidating and coercing said employees to join certain organizations against their )udg-
nient , wishes and desires, and
Whei i'as, it is the desire of all the law enfoicement officers of the City of Kennett and
Dunklin County to afford its citizens'and all employees full protection ' of their persons
and property
It Is Resolved that the undersigned shall lend the full force and protection of their
officers to the end that citizens and employees of the fl-ms of the City of Bennett and Dunklin
County shall be protected m 'their persons and property and request any persons who are
intimidated, threatened or coerced in their employment to report such to the undersigned
and proper steps will be taken for their protection . We do not intend to have our citizens
threatened and placed under duress in the discharge of their duties or in the excicise of
their constitutional rights
BEN CASH, Mayor,
JOHN ,, H WILLI .iors , Sheriff
GEORGE MUSE .- City Marshall
1268 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
afternoon of June 26, 1941, in Ben Hur Hall, which was attended by
some 100 employees and about 12 local business and-professional men.
On June 26, 1941, at noon, some 50 businessmen connected with the
Council of Kennett Service Clubs held a luncheon meeting at which
the union activities at the, respondent's plant were discussed. The
record shows that these men decided to investigate the "trouble" and
to reconvene later for the purpose of determining in what manner the
respondent's employees might be assisted. Subsequent to this meeting
a group of from 8 to 10 businessmen arranged for the printing and
public display of a poster in the following language :
We are one hundred per cent for employees of Ely-Walker Shirt
Factory, one hundred per cent for the City of Kennett and its
welfare, and we do not believe the best interests of all will be
served through any organization whose directing officers that will
have control of the rights of our people to work are located in
any city other than our own.
On the following morning, June 27, 1941, a group of businessmen
made arrangements for the purpose of meeting with and addressing
the respondent's employees in front of the plant during their lunch
period. A public address system was installed on the opposite side-
walk and as the employees emerged from the factory at noon Harry
Putnam, an insurance broker, attracted their attention and briefly
urged them to wait and hear what some of the leading men of the
town had to say. The first to address the employees was the Reverend
Hance, who also asked them to listen to the businessmen who were
concerned with their welfare. Immediately following, J. A. Hemp-
hill, Ernest Baldwin, and Will A. Jones, men prominent in Kennett
business circles, addressed the employees successively. While pro-
fessing, a personal interest in their welfare, these men uniformly
cautioned the employees against acting hastily on the advice of "out-
siders" and spoke disparagingly of outside unions. The businessmen
stated that the C. I. O. was interested only in dues and not in the
employees' welfare. Hemphill expressed the belief that if the em-
ployees "joined the C. I. O. the plant would leave town," and Jones and
Hemphill cautioned that the employees should consider matters care-
fully before affiliating with a "foreign controlled organization" or
"outsiders."
A group of about 200 businessmen and a small number of employees
of the respondent' assembled at the courthouse on the night of June
27.8 Harry Putnam presided over the meeting, which had been called
4 Between 7 and 7: 30 p m. Putman informed an employee and a floorlady from the
factory of this meeting. -
8 During the afternoon of June 27 Mayor Cash had called on Brazier at his hotel to warn
him of the possibility of violence because of a strong anti -C 1 0 sentiment prevailing at
ELY & WALKER DRY GOODS COMPANY 1269
to discuss the "difficulties" at the factory and the advisability of forms
ing a local' union. The principal speakers' were Irl Jones, president
of a Kennett bank, and Audrey Pitts, a floorlady at the respondent's
factory: Jones cautioned the employees against joining the C I. 0.,
and in unequivocal terms voiced his distrust of that organization.
Pitts then urged that if anything was to be done "about organizing
a union or stopping the C. I..O." it should be done immediately. Put-
nam was instructed to form a "permanent committee"-to act on behalf
of the employees. Putnam, acting as chairman, selected 4 business-
men as members. The employees present were then given an oppor-
tunity to make recommendations as to the composition of the committee
and added 2 further names. Thenceforth, the group so appointed
constituted and acted as the "Committee of Seven."
As agreed on the previous evening, Floorlady Pitts and other em-
ployees notified the respondent's employees of the meeting which- was
to be held at 3 o'clock at the courthouse on the afternoon of June 28,
1941. Approximately 428 employees, including 3 floorladies, Pitts,
Agnes Phillips, and Shields, and a majority of the Committee of Seven
were present when Putnam opened the meeting. At Putnam's re-
quest, Floorlady Pitts assumed the chairmanship. A grievance com-
mittee was formed, composed of 23 members representing the several
departments at the factory. This committee, which was headed by
Pitts, convened later in the day, and at her request the committee
members individually reported their grievances. On the basis of these
reports, recommendations were drawn lip and attached to a "petition" s
to be circulated among the employees "to get them to say whether they
did or did not want a local union." The petition and recommenda-
tions were drawn up by an attorney whose legal services had been
enlisted by the grievance committee. Copies of the petition and rec-
ommendations were then distributed to the 23 committee members,
Kennett . Mayor Cash suggested that Brazier leave town immediately as a matter of self-
protection In view of Mayor Cash ' s representations , Brazier and, the employees interested
in his organization pioceeded to hold the meeting scheduled for the afternoon of June 27 at a
location several miles beyond the town limits of Kennett On the way Brazier and his
party were overtaken by a number of townspeople Brazier was assaulted and brutally
beaten and was forced to abandon further activities on behalf of the Amalgamated we
agree with the Tirol Examiner 's findings that the record fails to establish that the respondent
was responsible for this unfortunate and reprehensible occurrence.
e This document is in the following language :
We, the undersigned employees of the Ely & Walker Shirt Factory located at Kennett,
Missouri , hereby state that we believe it would he to our best interests to form a local
,union of all employees of the factory who desired to become members thereof; such
union to be controlled by its own members, to be affiliated with no other organization
or union , and to have officers elected by its members and accountable solely to them
And we hereby express our desire to become members of such a union and organiza-
tion ; and we request the Committee selected at the meeting held in the Court House
at Kennett on June 28th , 1941, to call a meeting for the purpose of perfecting such an
organization , which meeting is to be held at the Court House in Kennett at 7, 30 P. M.
on Monday , June 30th, 1941.
I
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and between Saturday, June 28, and Monday; June 30, were circulated
among the respondent's employees, approximately 235 of whom affixed
their signatures.
On the evening of June 30 a meeting called in accordance with the
petition was held at the courthouse. "Articles of Association of the
Kennett Shirtmakers Union" were adopted and signed by 185 em-
ployees and a temporary committee of 6 members was elected to
administer K. S. U.'s affairs pending the election of officers. Pitts
was made 'chairman of the, committee.- - Regular officers were elected
on July 7, and on July 11, the K. S. U. Executive Committee was
elected, composed of the K. S. U.'s officers and 10 members, 2 each
from the 5 departments in the plant. Among the officers elected were
Assistant Foreman Alfred Sutton, second vice president, and Floor-
lady Agnes Phillips, first vice president. The membership of the
executive committee included Floorlady Pitts as one of the 2 repre-
sentatives from the sewing department.1° Thereafter the K. S. U.
• negotiated with the respondent, as described below.
B. Domination of the K. S. U.; interference, restraint, and coercion
The organizational activities of the respondent's employees who
were interested in the Amalgamated had been closely followed from
their inception, not only by the townspeople, as outlined above, but
also by the respondent. Superintendent Brenner testified, and we
find, that on or about June 6, 1941, he `heard from several employees
"that there was some trouble as some of the employees wanted some
organization." Brenner further testified that he transmitted this
intelligence at once to the respondent's headquarters at St. Louis and
discussed the matter with General Superintendent Atherton on the
latter's next visit to Kennett. Paul Greathouse, one of the employees
actively interested in the organization of the Amalgamated, testified
that he was questioned by Foreman Frank Murdock concerning one
of the first organizational meetings. When he denied that he had at-
tended the meeting, Murdock retorted, according to Greathouse, "I
know better than that, we have your names on the paper in the of-
fice . . . [Superintendent] Brenner called me over to the office Satur-
day morning and showed-me, these names and told me about it."
Murdock denied that he questioned Greathouse or made the foregoing
statement. The Trial Examiner, who observed the witnesses, credited
Greathouse's testimony. We agree with the Trial Examiner and find
that Foreman Murdock made the statements attributed to him by
Greathouse. Another employee, Roscoe Law, who took an active part
in the initiation of the Amalgamated, testified without contradiction
10 The remaining incumbents of offices and committee members were non -supervisory
employees
ELY & WALKER DRY GOODS COMPANY 1271
`and we find, as did the Trial Examiner, that on or about June 25,
1941, he was questioned by Floorlady Williams in Murdock's depart-
ment concerning the Amalgamated meetings and their success. It is
clear, therefore, that the respondent was fully aware at the outset
of the efforts of some of its employees to organize the Amalgamated
and that supervisory employees sought to discourage employees from
engaging in such activity.
During the forenoon of June 27, the attention of employees in the
factory, especially those-in the sewing department,-was called to the
street meeting scheduled for the lunch period. A number of employees
testified that the employees were advised of the meeting and urged to
attend by Forelady Budde and Floorlady Pitts. Budde insisted that
she did not give "any instructions to any persons in the factory .. .
to attend the meeting," while Pitts admitted that she "invited" the
employees to attend. We find, as did the Trial Examiner, that Budde
and Pitts informed employees of the meeting and indicated that they
desired the employees to attend. Several witnesses testified, and the
Trial Examiner found, that when the noon bell rang Superintendent
Brenner stood outside the office door and encouraged the employees as
they emerged from the plant to stay and listen to the speeches a num-
ber of businessmen were about to make. Brenner denied making the
remarks ascribed to him, and he and several other employees testified
that he was not outside the factory on this occasion. We find, as did
the Trial Examiner, that Brenner solicited the employees' attendance
at the June 27 street meeting. Imogene Sutton, an employee under
Foreman Murdock, testified that Murdock, finding her standing near
the factory gate, - asked her to go outside while the meeting was in
progress. Murdock did not deny Sutton's testimony, but merely stated,
"I don't think I told anybody that." We credit Sutton's account and
find that Murdock invited her to attend the meeting. The'hostility
of Kennett's officials and business leaders to the Amalgamated had
been publicly declared on June 26 by means of the proclamation and
display poster referred to above. Under these circumstances it is plain,
and we find, that the respondent, through the activities of Super-
intendent Brenner, Forelady Budde, Floorlady Pitts, and Foreman
Murdock in urging employees to attend the June 27 meeting, made it
clear to the employees that the respondent shared .and approved the
opposition of the officials and businessmen of Kennett to the Amal-
gamated and outside organizations.
As noted above, the addresses made at the street meeting were uni-
formly condemnatory of the Amalgamated and its activities.
It is against this background of hostility on the part of the com-
munity and the respondent to organizational activities of the Amal-
gamated that the movement for a "local union" and the circumstances
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surrounding the dreation of the K. S. U. must be projected . On the'
evening of June 27 a mass meeting of Kennett businessmen , attended
by some 25 employees , was called to consider the formation of a local
union. Irl Jones , a- banker of Kennett, warned the employees present
against joining the C. I. O. Audry Pitts, floorlady in the sewing de-
partment of the respondent 's plant, proposed the immediate organiza-
tion of a union for the purpose of "stopping the C. I. 0." From that
moment Pitts became the leading proponent of the K. S. U. which
presently evolved under the auspices of a representative group of
Kennett businessmen acting as the Committee of Seven. Following this
meeting, Pitts was active in inducing a large number of employees to
attend the meeting scheduled for 3 o'clock in the afternoon of June 28.
At this meeting Pitts presided , and 2 other floorladies from her depart-
ment, Agnes Phillips and Shields, were in attendance . The grievance
committee which was then formed , and which , assisted by the Com-
mittee of Seven, secured the assent of approximately 235 employees to
a "local union," again was headed by Pitts. Subsequent to the adop-
tion of Articles of Association of the K. S. U. and pending the election
of officers , Pitts served as chairman of a temporary committee appointed
to manage the K. S. U.'s affairs . Later, 2 supervisory employees,
Assistant Foreman Sutton and Floorlady Agnes Phillips , were elected
to first and second vice presidencies , respectively . At the same time
Pitts was elected to the K . S. U. executive committee as one of the
representatives from the sewing department.
Between July 5 and 23 , 1941, the respondent both negotiated with
and recognized the K. S. U. as the bargaining representative of its
employees . On Saturday , July 5, 1941 , the temporary K. S. U. com-
mittee, including Pitts as chairman and Floorlady Agnes Phillips
as one of its members, went to St. Louis and presented demands to the
respondent concerning certain wage increases and improved working
conditions . The committee returned to Kennett without having ac-
complished its objectives . Between July 8 and 18 , 1941, Marco Pendle-
ton, who had been elected president of the K. S. U., conducted negotia-
tions with the respondent 's president , E. P. Cave, at St. Louis , by letter
and telegrams , reiterating the demands presented on July 5 and empha-
sizing that the K . S. U. represented in excess of 71 percent of the re-
spondent 's employees at Kennett ." On July 11 , 1941, the respondent
recognized the K. S. U. as the bargaining agent of these employees,12
"Pendleton furnished Cave with a sworn statement setting forth that on July 8, 1941,
the K S U represented 456 out of 638 employees at the Kennett factory.
'2 President Cave wired Pendleton on July 11 as follows :
Answering wire your attorney Goodman reiterating your demands of July 5. As
you certify that you represent majority of employees of our Kennett plant we are
willing to recognize you as the bargaining agent subject to your future certification by
the National Labor Relations Board will be glad to meet with your committee and
discuss your grievances.
See also footnote 13, p. 1273.
X-
ELY & WALKER DRY GOODS COMPANY 1273
notwithstanding the fact that on July 9, 1941, it had been advised by
the Regional Director of the filing of the Amalgamated's charges
alleging that the K. S. U. was dominated by the respondent in violation
of the Act. On July 19, 1941, the respondent sent two representatives,
General Superintendent Atherton and one Ahrens, to Kennett for the
purpose of further negotiations. Bargaining conferences were held
on July 19, 22, and 23, 1941, during which the K. S. U. executive com-
mittee was assisted by the Committee of Seven. These negotiations
produced no results and were terminated on July 23, 1941.
The period following the initiation of the K. S. U. was characterized
by concurrent acts on the part of the respondent's representatives
at Kennett favoring the K. S. U. and discriminating against the
Amalgamated. According to uncontradicted testimony, which we
credit, Floorlady Pitts repeatedly announced the time and place of
K. S. U. meetings at the factory and during working hours. Mem-
bership in the K. S. U. was freely solicited at the plant. Floorlady
Bess testified that on July 15, 1941, during the lunch hour, she called
the attention of a group of employees to a notice in the Dunklin
Democrat, a local newspaper, pointing out that the K. S. U. had
been recognized by the respondent, that a closed-shop contract was
contemplated, and further that until the following Friday employees
might join without being required to pay an initiation fee 13 There
is further uncontroverted testimony that Floorlady Pitts, during
working hours, solicited the membership of several employees in the
K. S. U. and either handed them membership cards or informed them
from whom such cards might be obtained. During the latter part
of July, Pitts reprimanded her sister, Birdie Mills, for having signed
an Amalgamated membership card. Pitts at the time complained
about lack of consideration on the part of her sister and another
employee, Irene Clardy, whom she accused of having induced her
sister to join the Amalgamated. Fern Abernathy, a sister-in-law of
and an employee under Floorlady Pitts, testified without contra-
diction, and we find, that Pitts, on August 10, 1941, questioned her
concerning her membership in the Amalgamated and thereafter in-
duced Abernathy to ask for the return of her Amalgamated member-
The notice in the Dunklin Democrat of July 15, is as follows :
K S U RECOGNIZED BY ELY-WALKER CO
LOCAL UNION TO ASK FOR CLOSED SHOP; AID \I13ERSHIP GROWS
Officers of the Kennett Shirtmakers Union , recognized last week by the Ely -Walker Com-
pany , operators of the shirt factory in this city which employs about 650 men and women,
plan on asking the company for a contract calling for a closed shop.
At the present time any employee of the factory may join the newly formed union without
the payment of any initiation or membership fee ; but after Friday of this week, under the
by-laws of the union , there will be a membership fee of $1 00 for all new members.
The union which is strictly local in character and has for its officers employees of the
Ely-Walker Co , of many years service , has a memberships of approximately 75 percent of
the total workers at the factory , and in all probability this number will be greatly increased
by the end of this week
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship card. The partisanship of Pitts is clearly shown by her own
testimony that when a rumor was circulated to the effect that she
had joined the Amalgamated she vigorously announced that she was
`.very much opposed" to that organization. On another occasion
Floorlady Williams, according to Law's undenied testimony which
we credit, as did the Trial Examiner, asked Law, if he was not
afraid of being discharged for carrying Amalgamated cards on his
person.
On August 7, 1941, Floorlady Pitts, during factory hours, handed
an Amalgamated handbill to Mildred Phillips, an employee and the
K. S. U. secretary, and discussed with her what should be done in
turn on behalf of the K. S. U. Phillips then conferred with another
floorlady, Grace Thompson, about this handbill and finally left the
plant with permission from Superintendent Brenner and Forelady
Budde, the latter knowing that Phillips intended to consult the
K. S. U.'s attorney concerning this matter. On the evening of the
same day, members of the K. S. U. executive committee, including
Pitts, decided to have a handbill printed and distributed in the factory
the following day in answer to the C. I. O. handbill. About 250 of
the printed K. S. U. handbills were delivered to Phillips the next day,
and during the afternoon, Floorlady Pitts and Mildred Phillips dis-
tributed these handills among the employees in the sewing department.
These manifestations of partiality in favor of the K. S. U. indulged
by floorladies and tolerated by Forelady Budde whose jurisdiction
embraced some 400 employees and the floorladies of seven separate
units, are in sharp contrast with the treatment accorded the Amal-
gamated sympathizers. We have already noted that at the first signs
of Amalgamated activity Greathouse was questionend concerning his
participation in these activities and was made to understand that they
were watched by the management of the respondent's Kennett plant.
According to the testimony of Greathouse, Foreman Murdock stated
at the time that "if they had any union organizer around there, he
wasn't going to sit around and having it pulled over his eyes and not
having anything to eat." Greathouse further testified that, a few
days later, Murdock questioned him again, intimating that he "would
fire" employees for "talking union" in the plant, and that about; a
week later, during working hours, Murdock remarked to Greathouse
that if the employees "want to sign with the C. I. O. or any organiza-
tion we can't keep you from signing up, but you will have to suffer the
consequences." Murdock denied that he made any df the remarks
related by Greathouse. Upon all the evidence we accept Greathouse's
testimony as substantially correct, as did the Trial Examiner, and
find in accordance therewith.
ti^
o
ELY & WALKER DRY GOODS COMPANY 1275
Foreman Murdock displayed a similar attitude toward Roscoe Law,
another employee who took an active interest in the organization of the
Amalgamated. Law testified that on June 13,1941, when initial efforts
to organize the plant had gotten under way, Murdock admonished
him at the plant to stay out of the washroom and "stop this union
talk; there has been too much of it talked and it has to be stopped."
Murdock admitted that he had "told several people in there not to
discuss it during working hours," but stated he did not know whether
he had "personally" warned Law. In view of the respondent's gen-
eral animus toward the Amalgamated and Murdock's admission that
he warned other employees, we find, as did the Trial Examiner, that
Murdock made the statement attributed to him by Law. During the
morning of August 8, -1941, Law, gave Avery Hill, another employee
under Murdock, a number of Amalgamated handbills which he was
to distribute among the employees. Murdock, observing Law, ac-
cording to the latter's testimony, admonished him and Hill, saying,
"Listen, I want to tell you something, the first bill you hand out I
will fire you or anybody else that hands out a handbill." The Trial
Examiner did not credit Murdock's denial, nor do we. This treatment
was in sharp contrast to the liberty accorded the K. S. U. As we have
found above, K. S. U. handbills, which had been devised with the
assistance of Floorlady Pitts, were freely distributed in the plant on
August 8.
C. Concluding findings
From the facts recited above it is apparent that the respondent
made known to the employees its hostility to the Amalgamated and
at the same time encouraged the formation of the K. S. U. in an effort
to forestall further activity on behalf of the Amalgamated. When
Amalgamated activity first began, Foreman Murdock questioned Great-
house with respect thereto and stated that the respondent had a
record of the employees who had attended the early organizational
meeting. Shortly thereafter Murdock warned Greathouse that em-
ployees would be discharged for "talking union" and threatened that
those who signed up with the Amalgamted would "have to suffer the
consequences." Murdock admonished Law to the same effect, as fully
set out above.
Although we do not find that the respondent is responsible for the
activities of the business men or civic organizations in combating the
Amalgamated and fostering the K. S. U., we find that the respondent
encouraged employees to give heed to their anti-union counsels. Thus
various supervisory employees, including Superintendent Brenner;
invited and urged employees to listen to and follow the advice of the
businessmen at the June 27 meeting at the plant, thereby indicating that
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they shared and approved the sentiments there expressed. At no time
did Brenner or any other official reassure the employees that the re-
spondent did not acquiesce in the expressions of hostility ; 14 on the
contrary, supervisory employees actively participated in the drive
against the Amalgamated.
The record shows that supervisory employees promoted the K. S. U.
in a variety/of ways. As we have found above, Floorlady Pitts pro-
posed that a local union be formed for the express purpose of "stopping
the C. I. 0." Pitts and other supervisors took an active part in ob-
taining the assent of employees to the "petition" for a local union,
held important offices in the K. S. U., solicited employees to join, and
engaged in other pro-K. S. U. and anti-Amalgamated activities both
in and out of the plant.
,The respondent contends that the testimony of a number of em-
ployees to the effect that they joined the K. S. U. freely and a stipu-
lation 11 that 450 members of the K. S. U. would, if called as witnesses,
testify to the same effect, demonstrate that the K. S. U. is not a
dominated organization. Such evidence is immaterial in view of the
domination and support shown by the acts of its supervisory employees
in promoting the K. S. U. and in opposing the Amalgamated.-
The respondent also contends that it is not bound by the acts of
the floorladies here involved, for the reason that they are minor
supervisory employees without authority to hire or discharge sub-
ordinates. We find no merit in this contention. The record shows
that each of these floorladies supervises approximately 45 employees
and that their recommendations as to the hire and tenure of their
subordinates are commonly followed. We find that the respondent
is chargeable with the foregoing described acts of its floorladies, as
well as those of its higher supervisory employees mentioned above."?
14 See Matter of Aintree Corporation and International Ladies' Garment Workers' Union,
Local No. 373, of liated With the American Federation of Labor, 37 N L R B 1174; cf.
The Solvay Process Company v N L R. B, 122 F ( 2d) 993 (C C A. 5).
15 The parties stipulated that these employees "would testify that they joined the Kennett
Shirtmakers Union of their own free will and accord ; that nothing said or done by anyone
influenced them in their decision to join the Kennett Shirtmakers Union ; that they have
not at any time been approached by anyone whom they considered as having any authority
to fire them or to recommend they be fired , with any suggestion that they join the Kennett
Shirtmakei s Union, or that they would be penalized or discriminated against if they did not
join the Kennett Shirtmakers Union , that they joined the Kennett Sbutmakers Union
because they wanted that union and not the CIO
"It is further stipulated that some of said witnesses would testify that although the choice
' to join was made of their own free will , it was based in part , at least , on suggestions and
information presented to them by businessmen of the community , including the committee
of seven, and by other persons, none of whom they considered in a position to bind, the
Company or speak for the Company "
18 See N L. R . B. v. Automotive Maintenance Machinery Co., 62 S Ct. 608 , rev'g 116
F. (2d) 350 (C C. A. 7) and enf'g 13 N L R B 338; N . L. R B. V. Newport News
Shipbuilding if Dry Dock Co, 308 U . S. 241; N. L. R. B. v. Brown Paper Mill Co , 108 F.
( 2d) 867 (C. C. A 5), cert den 310 U. S. 651.
17 See International Association of Machinists v N L. R. B., 311 U. S 72; N L. R B. V.
Link-Belt Company, 311 U . S. 584.
I
ELY & WALKER DRY GOODS COMPANY 1277
We find, that the respondent has dominated and interfered with
the formation and administration of the K. S. U. and has contributed
support to it; and that thereby, and by its course of conduct in
opposition to the Amalgamated, especially by the acts of its super-
visory employees in questioning employees concerning their activity
on behalf of the Amalgamated, warning employees that discharges
would result if they continued such activity, urging employees to
attend anti-union meetings and heed, advice that they refrain from
joining or assisting the Amalgamated, and by inducing employees
to withdraw their membership in the Amalgamated, the respondent
has 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`
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the, respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and to
take.certain affirmative action designed to effectuate the purposes and
policies of the Act.
We have found that the respondent has dominated and interfered
with the formation and administration of the K. S. U. and contributed
support to it., Since that organization is incapable of serving the
resp'ondent's' employees as their representative for the purposes of
collective bargaining and in order to effectuate the policies of the Act
and to' free the employees of the respondent from (such, domination
and interference, we shall order that the respondent withdraw all rec-
ognition from the K. S. U. as i representative of any of its employees
for the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other con-
ditions of employment, and completely disestablish the K. S. U. as such
representative.
Because of the respondent's unlawful conduct and its underlying
purpose and tendency, we are convinced that the unfair labor practices
found are persuasively related to the other unfair labor practices pro-
scribed and that danger of their commission in the future is to be
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anticipated from the course of the respondent's conduct in the past."
The preventive purpose of the Act will be thwarted unless our order
is coextensive with the threat. In order therefore to make effective
the interdependent guarantees of Section 7, to prevent a, recurrence of
unfair labor practices, and thereby to minimize industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of the
Act, we must order the respondent to cease and desist from in any
manner infringing the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire
'record in the case, the Boar&makes the following :
CONCLUSIONS OF LAW
1. Amalgamated- Clothing Workers of America, affiliated with the
Congress of Industrial Organizations, and Kennett Shirtmakers
Union, unaffiliated, are labor organizations within the meaning of Sec-
tion 2 (5) of the Act.
-2. By dominating and interfering with the formation and admin-
istration of Kennett Shirtmakers Union and contributing support to
it, the respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (2) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair_-labor practices
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6)' and (7) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders-that the re-
spondent, Ely & Walker Dry Goods Company, Kennett, Missouri, and
its officers, agents, successors, arid-assigns,--shall
1. Cease and desist from :
(a) Dominating or interfering with the administration of Kennett
Shirtmakers Union, or with the formation and administration of any
other labor organization of its employees, and from contributing sup-
port to Kennett Shirtmakers Union or any other labor organization of
its employees;
(b) Recognizing Kennett Shirtmakers Union as the representative
of any of its employees for the purpose of dealing with the respondent
18 See N L. R B v Express Publishing Co, 312 U. S 426
ELY & WALKER DRY GOODS COMPANY 1279
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of employment;
(c) In any other manner interfering with, restraining, or coercing
its employees ,in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or pro-
tection 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) Withdraw all recognition from Kennett Shirtmakers Union as
the representative of any of its employees for the purpose of dealing
with. the , respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment,
and completely disestablish Kennett Shirtmakers Union as such
representative;
(b) Post immediately in conspicuous places throughout its plant
at Kennett, Missouri, 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), (b), and
(c) of this Order; and (2) that it will take the affirmative action
set"forth ini paragraph'2 (a) of this Order;
(c) Notify the Regional Director for the Fourteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.