Fred P. Weissman Co.

National Labor Relations Board - Board Decisions

Jul 31, 1946

69 N.L.R.B. 1002 (N.L.R.B. 1946)

In the Matter of FRED P. WEISSIVIAN , AN INDIVIDUAL D/B/A FRED P.
WEISSMAN COMPANY , FRED P . WEISSMAN COMPANY, A CORPORATION,1
AND MERCER BOARD OF TRADE , AN UNINCORPORATED ASSOCIATION, and
INTERNATIONAL LADIES GARMENT WORKERS UNION,, AFFILIATED WITH
AMERICAN FEDERATION OF LABOR
Case No. 9-C-3150.-Decided July 31, 1946
Messrs. William H. Townsend and John L. Davis, of Lexington,
Ky., and David Leavenworth , of New York City, for the Company
and the Corporation.
Messrs. Julius Holzberg and David Solomon, of Cincinnati, Ohio,
for the Union.
Mr. C. E. Rankin , of Harrodsburg , Ky., for the Mercer Board of
Trade.
Miss Anne E. Freeling , of counsel to the Board.
DECISION
AND
ORDER
On April 8, 1946, Trial Examiner David Rein issued his Intermedi-
ate Report in the above-entitled proceeding, finding that the Company
had engaged in and was engaging in certain unfair labor practices
and recommending that the Company and its successor, the Corpora-
tion, cease and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto. He
also found that the Board of Trade was not an employer within the
meaning of the Act and recommended that the complaint be dismissed
as to it. Thereafter, counsel for the Board, the respondents, and the
Union filed exceptions to the Intermediate Report and supporting
briefs.
The Board has considered the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
x The corporation has been variously designated in this proceeding. The name of the
corporation is Fred P. Weissman Company.
69 N. L. R. B., No. 125.
1002
FRED P. WEISSMAN COMPANY 1003
tions of the Trial Examiner, with the additions and exceptions noted
below :
1. We agree with the findings of the Trial Examiner that the Com-
pany discriminated with regard to the hire and tenure of employment
of Teater, Springate, Drury, Shirley, and Sallee. Our finding with
respect to Shirley is based upon the following facts :
Shirley was present when Teater, Springate, and Drury were ex-
cluded from the plant on September 19, 1945, because of their union
activities, by a group of anti-union employees, in the presence of Gen-
eral Manager Drimnier and other supervisors. In the course of such
exclusions, Shirley urged Teater to assert her right to enter the plant;
to the group of anti-union employees engaging in the exclusions, he
protested against their wrongful conduct. When Teater was injured
in the scuffle which ensued when the anti-union employees physically
excluded her from the plant, Shirley agreed to take her in his car to a
doctor. Drimnler followed Teater and Shirley as they walked to
Shirley's car.
When Shirley returned to the plant, employees were still milling
outside. He waited with them until one of the employees,. who had
taken a leading part in the exclusions, announced that all employees
except those who had been excluded could enter the plant. As Shirley
started to enter the plant, however, Supervisor Hellard stopped Shir-
ley and questioned him concerning his attitude toward the Union,
Hellard asserting that he had taken Teater home and-that Teater was
not a member of his usual car-riding group. Shirley told Hellard that
he would take anyone to a doctor, and, in response to Hellard's further
questioning, Shirley stated that lie was not working for or against
the Union. Thereupon, according to Shirley, Hellard "permitted me
to go in and go to work." S
Shirley further testified that, shortly after he resumed work, when
a group of employees headed by Hellard who acted as spokesman ap-
proached Shirley at his workplace, and stated that they were not satis-
fied with Shirley's answer regarding the Union and that they wanted
a better explanation from him, Shirley again stated that he was not
working either for or against the Union.
Shortly thereafter, a second group of employees headed by Super-
visor King approached Shirley at his workplace. King credibly testi-
fied about this incident as follows :
A. We had heard that he was meeting with these-with his
bunch of union people, and he-we asked him how he stood.
That's what I asked him.
Q. What did he say?
A. He said lie wasn't for it and he wasn't against it.
2 Hellard was not questioned about this incident. Shirley's testimony was straightfor-
ward and consistent , and we accordingly find that this incident occurred as he described it.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. And then did you say anything else?
A. I told him I thought he should feel one way or the other.
Hellard credibly testified with regard to this conversation that
.. I knew what Lavina [King] was talking about, but I don't
remember exactly what she said .. . She was talking about him
leaving."
Shirley further testified that on the following morning, Manager
Drimmer, who was Shirley's immediate supervisor, ". . . stopped me
while I was working . . . He said, . . . `have you heard anything
more about the Union?' I said, `Well, they were down to my place
last night when I got home from work'." 8
When Shirley was about to leave the plant for the noon period, em-
ployee Martha Weldon prevented his doing so. As Weldon credibly
testified, ". . . we went to check out at dinner, and he [Shirley]
wanted to check out, and I walked up and put my hand on the card and
asked him if he had a union meeting at his house last night, and he said
he did, and I said, `Well, your services are no longer needed out here,
and to make a long story short, don't come back'." A number of the
girls applauded this announcement. Shirley noticed, "when they done
the clapping in particular," that Supervisor Watts was present.
Shirley also credibly testified that, when he returned to the plant
after the dinner hour, he did not enter the plant because he saw some of
the girls there, and, in his own words, "I knew they were holding the
door, and I didn't want to have any trouble with them.. .. They had
told me not to come back, and after I had saw what happened the day
before, I didn't want any trouble like that .. ." because "I was maybe
going to hurt somebody."
In view of the events of the preceding day, when Shirley had ob-
served the determination with which the anti-union group, in the pres-
ence of several supervisors, had excluded Teater, Springate, and Drury
because of their union activities, in view of the statements made to
Shirley by Supervisors Hellard and King clearly indicating that he
would also be excluded unless he ceased his union activities, and in view
of Supervisor Watts' presence when Weldon told Shirley not to come
back, we are convinced and find that Shirley was justified in refraining
from making any effort to force his way into the plant. He believed,
with reasonable justification, that he would have become involved in a
fracas with the girls guarding the door, and, under the. circumstances,
he was not required, in order to gain access to his workplace, to engage
in a contest of physical strength with these girls who had the support
of supervisory personnel.
We conclude and find that Shirley, like Teater, Springate, Drury,
and Sallee, was discriminatorily excluded from the plant because of
3 Although Drimmer ' s version of this conversation differed from Shirley's we credit
Shirley's testimony, as did the Trial Examiner.
FRED P. WEISSMAN COMPANY 1005
his union activities and that the Company thereby violated Section
8 (3) and (1) of the Act.
Each of the excluded employees requested reinstatement. The Com-
pany refused to reinstate them although there was at the time a man-
power shortage in the Company's plant. We find no merit in the re-
spondent's contention that the excluded employees had voluntarily quit
their employment. We therefore find, as did the Trial Examiner, that
the Company thereby further discriminated with regard to the hire
and tenure of employment of Teator, Springate, Drury, Shirley, and
Sallee, thereby discouraging membership in the Union, in violation of
Section 8 (3) of the Act, and interfering with, restraining, and coerc-
ing its employees in the exercise of the rights guaranteed in Section 7
of the Act, in violation of Section 8 (1) thereof.
2. Counsel for the Board and the Union have excepted to the Trial
Examiner's recommendation that the complaint be dismissed as to the
Board of Trade and urge that his finding that the Board of Trade did
not act as an employer within the meaning of the Act be reversed.
While the question is not free from doubt, we adopt the Trial Ex-
aminer's view. However, our finding in this respect should not be
taken to establish a precedent but is to be limited strictly to the facts
of the instant case.
3. In Sectioli III, B, 2, of the Intermediate Report, apparently as
part of his discussion as to whether the status of employer-designated
supervisors was such as to impose liability upon the Company for their
anti-union activities, the Trial Examiner stated, in part : "The inquiry
here is . . . whether the employees were, in fact, coerced by the activi-
ties of these supervisors. ...." We find, as did the Trial Examiner,
that such supervisors, including Laving King, Edith Ransdell, Lurene
Hellard, and Leona Watts, represented management to the production
employees because of the supervisors' position and duties and that
their anti-union activity, set forth in the Intermediate Report, is at-
tributable to the Company. However, we do not adopt the views,
apparently expressed in the Intermediate Report, that the coercive
nature of the supervisors' anti-union activities is material to the in-
quiry as to their status or that actual coercion must exist as a prereq-
uisite to a finding of unfair labor practice.'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents , Fred P. Weissman, an
'+ See N. L. R. B. v. Link-Belt Co., 311 U. S. 584, in which the Court stated :
If the words or deeds of the supervisory employees, taken in their setting, were reason.
ably likely to have restrained the employees' choice and if the employer may fairly be
said to have been responsible for them, they are a proper basis for the conclusion that
the employer did interfere.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
individual d/b/a Fred P. Weissman Company, Fred P. Weissman
Company, a corporation, and their officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Discouraging membership in International Ladies Garment
Workers Union, affiliated with American Federation of Labor, or in
any other labor organization of his or its employees, by discharging
or refusing to, reinstate any of his or its employees, or by discrim-
inating in any other manner in regard to their hire or tenure of em-
ployment or any terns or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
his or its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist International Ladies Gar-
ment Workers Union, affiliated with American Federation of Labor,
or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties, for the purpose of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Instruct his or its employees that he or it will not permit any
group of employees to exclude other employees for the purpose of
discouraging membership in, or activities on behalf of,, International
Ladies Garment Workers Union, affiliated with American Federation
of Labor, or any other labor organization, and that physical assaults
on, or threats of physical violence to, their fellow employees for the
purpose of discouraging membership in, or activities on behalf of, said
labor organization, or any other labor organization, will not be per-
mitted in the plant or on plant property at any time, and take effective
action to enforce these instructions;
(b) Offer to Edna Teater, Gladys Drury, Margie Springate, Floyd
Shirley, and Ethel Sallee immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to their
seniority and other rights and privileges, and make said employees
whole for any loss of pay that they may have suffered by reason of the
discrimination against them, by payment to each of them of a sum
of money equal to that which each normally would have earned as
wages from the date of the discriminatory discharge to the date of the
respondents' offer of reinstatement, less his or her net earnings during
that period;
(c) Post at his or its plant in. Harrodsburg, Kentucky, copies of the
notice attached hereto, marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director for the Ninth Region, shall,
after being duly signed by the respondents, be posted by him or it
immediately upon receipt thereof, and maintained by him or it for
FRED P. WEISSMAN COMPANY 1007
sixty (60) consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be takeii by the respondents to insure that said
notices are not altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps the re-
spondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleged
that the Mercer Board of Trade was an employer within the meaning
of Section 2 (2) of the Act, be, and it hereby is, dismissed.
Mn. GERARD D. RLILLy, dissenting in part :
I agree with the opinion of the majority of the Board except with
regard to the finding of discrimination in the hire and tenure of
employment of Floyd Shirley.
Shirley was told by a non-supervisory employee, while checking
out at noon, not to return to work. After the noon period, Shirley
brought several employees back to the plant in his car. Because he
saw a few girls standing near the door of the plant, he refrained from
getting out of his car, but drove away from the plant after his riders
left the car. Ile made no effort thereafter on that, day to enter the
plant and resume his work.
With regard to Teater, Springate, Drury, and Sallee, illegal conduct
by their fellow employees can be imputed to the respondents because
such conduct occurred in the presence of supervisory employees whose
duties were to report such conduct and take steps to correct it. On
the other hand, it appears that Shirley decided to resign because he
was disheartened with the attitude of management and the attitude
of the dominant group of employees toward the girls who had been
ejected. The record does not indicate that the respondents knew, or
should have been put on notice by its supervisors, of any attempt to
keep Shirley out of the plant by force. There is no basis in law
for a conclusion that the mere presence of a group of hostile em-
ployees at the plant entrance amounted to an assault, upon Shirley or
a threat of an assault.
As I find no illegal act on respondents' part in terminating Shirley's
employment, after his voluntary departure, there is no duty to rein-
state him.'
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
5 8 ee Matter of Diamond T Motor Car Company, 64 N. L. R. B. 1225.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist International Ladies
Garment Workers Union, affiliated with American Federation
of Labor, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination.
Edna Teater Floyd Shirley
Gladys Drury Ethel Sallee
Margie Springate
All our employees are free to become or remain members of the
above-named Union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization. We
have not participated in and do not endorse the articles or the views
of the Board of Trade on labor relations. We will not permit any
group of employees to exclude other employees from the plant. Nor
will we permit any physical assault or threats of physical assault
in the plant or on plant property. If necessary, disciplinary action
will be taken to enforce this rule.
FRED P. WEISSMAN COMPANY, A CORPORATION,
Employer.
By ---------------------------------- ------------
(Representative ) (Title)
FRED P. WEISSMAN COMPANY,
By ---------------------------------- ------------
(Representative ) ( Title)
Dated ----------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by an other material.
INTERMEDIATE REPORT
Mr. Allen Sinsheimer Jr., for the Board.
Messrs. William H. Townsend and John L. Davis , of Lexington , Ky., and Mr.
David Leavenworth , of New York City, for Fred P. Weissman Company and Fred
P. Weissman Company, Inc.
Mr. C. E. Rankin, for the Board of Trade.
FRED P. WEISSMAN COMPANY 1009
Messrs. Julius Holzberg and David Solomon, both of Cincinnati, Ohio, for the
Union.
STATEMENT OF THE CASE
Upon a second amended charge duly filed by International Ladies Garment
Workers Union, affiliated with American Federation of Labor, herein called the
Union, the National Labor Relations Board, herein called the Board, by its
Regional Director for the Ninth Region (Cincinnati, Ohio), issued its amended
complaint dated January 9, 1946, against Fred P. Weissman, an individual d/b/a
Fred P. Weissman Company, herein called the Company, and Mercer Board of
Trade, an unincorporated association, herein called the Board of Trade, alleging
that the Company had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1) and (3) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the
Act, and that the Board of Trade had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1) and Section 2
(6) and (7) of the Act. Copies of the complaint accompanied by notice of hear-
ing thereon were duly served upon the Company, the Board of Trade, and the
Union.
With respect to the unfair labor practices the complaint alleged in substance
that the Company had interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act by interrogating
employees concerning the Union, speaking against the Union, advising employees
not to join the Union, circulating a petition among its employees to withdraw
from the Union, and acquiescing in or permitting the exclusion of employees from
the plant because of their union affiliation. The complaint further alleged that
the Company had discharged, on or about September 19, 1945, Gladys Drury,
Margie Springate and Edna Teater, on or about September 20, 1945, Floyd Shirley,
and on or about October 29, 1945, Ethel Sallee, and since that time has failed and
refused to reinstate said persons, because of their membership in, activities on
behalf of, and sympathy for the Union, and for the purpose of discouraging mem-
bership in the Union. With regard to the Board of Trade, the complaint alleged
that the Board of Trade had acted in the interest of the Company and was an
employer within the meaning of Section 2 (2) of the Act, and as such had- inter-
fered with, restrained, and coerced the employees of the Company within the
meaning of Section 7 of the Act, by maligning the Union and union leaders,
threatening that union organization would result in the removal of the Company's
plant, instigating opposition to the Union, and urging and persuading employees
of the Company to renounce the Union.
The Company thereafter filed a motion to dismiss the allegation in the com-
plaint detailing the manner in which the Company had allegedly interfered with,
restrained, and coerced its employees, on the ground that the matters so detailed
were not covered by the charge filed by the Union. The Company at the same
time filed a motion to make the complaint more definite, certain, and specific.
These motions were referred to Trial Examiner George Bokat who, in an order
dated January 25, 1946, denied the motion to dismiss, and granted, in part, the
motion to make the complaint more definite, certain and specific. In compliance
with his order, counsel for the Board on February 7, 1946, filed a Bill of Partic-
ulars.
In its answer, the Company admitted the allegations as to commerce, but
denied that it had engaged in any unfair labor practices. The answer further
denied that the Company had any control over the Board of Trade or bad ever
solicited or requested the Board of Trade to act on its behalf. The Board of
701592-47--vol. 69---65
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trade, in its answer, denied that it had engaged in any unfair labor practices
and in addition asserted in a special plea that it was not subject to the jurisdic-
tion of the Board and was not an employer within the meaning of the Act.
Pursuant to notice, a hearing was held from February 18 to 20, and front
March 4 to 6, all dates inclusive, at Harrodsburg, Kentucky, before the under-
signed, the Trial Examiner duly designated by the Chief Trial Examiner. The
Board, the Company, the Board of Trade, and the Union were represented by
counsel. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all parties.
At the hearing, counsel for the Board learned for the first time that the plant
at Harrodsburg, Kentucky, at which the alleged unfair labor practices had
occurred, was no longer operated by the Company but was and had been operated
since December 1, 1945, by Fred P. Weissman Company, Inc., herein called the
Corporation ' Because of this change in ownership , counsel for the Board filed
an amendment to the amended complaint , alleging that the Corporation was the
successor to the Company , and as such was "responsible and liable" for the unfair
labor practices alleged to have been committed by the Company. The amend-
ment further alleged that the Corporation had refused to reinstate the five
employees named above because of their membership , activities on behalf of, and
sympathy for the Union and for the purpose of discouraging membership in the
Union, and by virtue of all of these acts the, Corporation had engaged in unfair
labor practices within the meaning of Section 8 (1) and ( 3) and Section 2 (6)
and (7) of the Act. Over the objection of counsel for the Company and the Cor-
poration,' the amendment was allowed. At a later stage of the hearing, counsel
for the Board requested permission to withdraw this amendment because of
certain alleged defects? Without passing upon the alleged defects, the Trial
Examiner permitted the withdrawal of the amendment as a matter within the
discretion of counsel for the Board. Counsel for the Board thereupon filed a
supplement to the amended complaint containing the same allegations with regard
to the Corporation but based upon a supplement to the charge filed by the Union,
and signed by the Regional Director for the Ninth Region. The Trial Examiner
denied permission to file this supplement with leave to renew at the close of the
hearing. Toward the close of the hearing, the counsel for the Board renewed
his motion at which time it was granted by the Trial Examiner over objection.
At the same time the Trial Examiner announced that the Corporation would have
10 days to file an answer or other pleadings, and to file a motion to adduce such
additional evidence as it might desire to adduce. Counsel for the Corporation4
stated on the record that he would enter an appearance for the Corporation
immediately and did not desire the 10 days for either purpose. He made a verbal
answer on the record in which he denied, for the Corporation, that the Corpora-
tion was a successor to the Company or had engaged in any unfair labor practices
1 It is clear from the record that the failure to disclose this change of ownership to the
Board was due purely to inadvertence, and no inference of bad faith on the part of the
Company , Corporation or their counsel is to be drawn from this. The incident is set forth
only to indicate clearly the circumstances leading to the amendment of the complaint as
described in the text.
2 The same counsel, Messrs. Townsend, Davis and Leavenworth, represented both the
Company and the Corporation.
3 The defects in question were the absence of a charge filed against the Corporation, and
the fact that the amendment had been signed by counsel for the Board , rather than by the
Regional Director. It had been argued that such procedure was improper to bring in a
new party . See Section 5 of the Board Rules and Regulations , Series 3 as amended. On
this point compare N. L. R. B. Y. Hopwood Retinning Co., et al ., 98 F. (2d ) 97 (C. C. A. 2),
on contempt 104 F. ( 2d) 302 with National Licorice Co. v. N . L. if. B., 309 U. S. 350.
4 As noted in footnote 2, above, the same counsel appeared for both the Corporation and
the Company.
FRED P. WEISSMAN COMPANY 1011
as alleged in the supplement to the complaint. Counsel further stated that he
would make no objection to the consideration of any evidence against the Cor-
poration on the ground that the Corporation was not a party to the proceeding
at the time the evidence was taken. In response to a question by the Trial
Examiner, counsel stated in addition that he did not wish to introduce any evi-
dence on behalf of the Corporation and that he had no objection to the record
being closed at that time.
At the close of the hearing, a motion of counsel for the Board to conform the
pleadings to the proof was granted without objection. Although afforded an
opportunity to do so, none of the parties argued orally. All parties, with the
exception of the Union, filed briefs with the undersigned.
Upon the entire record in the case," and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND CORPORATION
Until about December 1, 1945, Fred P. Weissman was the sole owner of a
business located at Harrodsburg, Kentucky, which he operated under the name
of Fred P. Weissman Company. The Company operated a plant known as
Sportleigh Hall at which it produced women's and junior misses' coats. The
principal raw materials used in the course of its business were rayon, woolen
cloth, assorted cotton goods, buttons, and thread. During the 12-Month period
preceding December 1, 1945, the Company purchased raw materials amounting
to more than $100,000 in value, of which over 50 percent was received from
States other than the State of Kentucky. During the same period, the Company
manufactured and sold finished products of a value in excess of $100,000, of
which more than 50 percent was shipped to points outside the State of Kentucky.
From on or about December 1, 1945, Sportleigh Hall was operated by the
Corporation. From that date to the date of the hearing, the Corporation
purchased raw materials of a value in excess of $50,000 of which over 50 per-
cent came from outside the State of Kentucky. During the same period, it
sold finished products of a value in excess of $100,000, of which 50 percent
was shipped to States other than the State of Kentucky.
At the hearing it was conceded that the Company had been engaged in
interstate commerce within the meaning of the Act, up to December 1945, and
that since December 1, 1945, the Corporation had been and is now engaged in
interstate commerce within the meaning of the Act.
II0 THE ORGANIZATION INVOLVED -
International Ladies Garment Workers Union, affiliated with American Fed-
eration of Labor, is a labor organization admitting to membership employees of
the Company and Corporation.
" On April 3 the parties entered into a stipulation to correct the transcript of testimony.
The undersigned has considered the stipulation and it is hereby approved and made part of
the record herein and it is ordered that the transcript of record herein be and it is hereby
corrected to conform to the correction ageed to by said stipulation and the Transcript
Clerk for the Board is hereby authorized and directed physically to enter said correction
in the transcript of record on the face thereof as the same is now on file with the Board
to conform to said correction. On the same (late the parties entered into a stipulation
agreeing that a photograph of the plant could be received in evidence under the terms
specifically stated in the stipulation. The undersigned hereby orders that this photograph
be received in evidence as Trial Examiner's Exhibit No. 1, and that the stipulation accom-
panying this photograph be approved and made part of the record herein.
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THg UNFAIR LABOR PRACTICES
A. Background
1. Events leading to establishment of Sportleigh Hall at Harrodsburg
Although the complaint alleged that the unfair labor practices commenced
on or about March 1, 1945, and only the events since that date are properly
in issue here, the parties introduced considerable. evidence dealing with events
prior to that date. A brief survey of this background will be helpful to an
understanding of the events of 1945, as well as necessary for a discussion of
certain contentions of the respondent dealt with more fully below.
In 1940, Fred P. Weissman was engaged in the manufacture of women's
coats in New York City ° He was at the time a member of a manufacturers'
association in New York, and by virtue of such membership was bound by a
contract with the Union. In May or June of 1940, Weissman liquidated his
New York enterprise, established the Company and set up in business in
Cincinnati, Ohio. A dispute arose as to whether or not Weissman had fully
performed his obligations under the contract before leaving New York City.'
Attempts to negotiate a solution of the dispute were unsuccessful and the
Cincinnati local of the Union began to picket the Company's plant in Cincinnati.
The dispute became further complicated by the Company's refusal to hire cer-
tain employees referred to the Company by the Cincinnati office of the Union,
and by numerous other incidents, unnecessary to mention here but which
heightened the bad feeling between the parties. Later in 1940, the Company
set up a plant in Lawrenceburg, Indiana. But the Union followed the Com-
pany to Lawrenceburg and picketed this plant as well. Further negotiations
were had but these also were unsuccessful. An active participant in all of these
negotiations was David Leavenworth, Weissman's personal attorney and adviser
on labor relations.
As a result of these difficulties, Weissman, late in 1940, began efforts to find
another location for his plant. He established contact with the Board of Trade
of Harrodsburg, Kentucky. Harrodsburg was the county seat of Mercer
County with a population of approximately 4,000, and virtually no industry.
The Board of Trade, an association of the business men of Harrodsburg, had
as one of its stated purposes the bringing of industry into the locality. Mr.
Norfleet, president of the Board of Trade, was conscious that the chief in-
ducement the town could offer to new industry was the lack of union activity
in the town. Thus, Weissman's desire to find a location where he would be
free from union activity, and the Board of Trade's desire to attract industry to
Harrodsburg formed a substantial basis for common action. After a few pre-
liminary discussions, Weissman attended a meetinglof the Board of Trade at
the Harrodsburg City Hall. He described to them his experiences with the
Union in Cincinnati and Lawrenceburg and his desire to locate in a community
where he would be free from such activity. Members of the Board of Trade
advised him that such conditions did not obtain in Harrodsburg, and after fur-
ther discussions an agreement was entered into. The agreement provided that
the Board of Trade would erect a building in Harrodsburg in accordance with
Weissman's specifications, and this building would then be leased to the Com-
pany. For this purpose, members of the Board of Trade organized the Mercer
° It appears from the record that the business enterprise owned by Weissman at that time
was not the Company respondent in this proceeding.
'It is unnecessary for this report to resolve or discuss the merits of the dispute. It
should be noted, however, that although charges of unfair labor practices were filed in this
connection by the Union with both the Cincinnati and New York Regional Offices of the
Board, no complaint was ever issued by the Board
FRED P. WEISSMAN COMPANY 1013
Industrial Corporation which raised funds both through stock subscriptions
and through loans sufficient to finance the building of the plant. The plant
was completed, the lease entered into and the Community commenced operations
in approximately June of 1941. The plant was known as Sportleigh Hall.'
2. Alleged conspiracy by the Union
The Company contends that the sole concern of the Union was to force Weiss-
man back to New York, that the Union would use any means to achieve that
purpose, that the purpose was an illegal one, and that the Union was now utiliz-
ing the processes of the Board for the achievement of this purpose. In support
of this contention, council for the Company cited the cases of N. L. R. B. v.
Indiana & Michigan Electric Company, et ale and Donnelly Garment Company
v. N. L. R. B'° Over the objection of both counsel for the Board and the Union,
the undersigned permitted the Company to introduce evidence in support of
this contention." The evidence adduced by the Company, however, does not
bring the present case within the doctrine of either the Indiana & Michigan case
or the Donnelly Garment case. The most that can be said to be proved on this
record was that, in 1940 and 1941, the Union endeavored to persuade Weissman
to employ once again the contractors in New York he had previously employed
and for this purpose utilized picketing and negotiations. Whether or not the
Union was correct in its contention that Weissman had failed to fulfil his con-
tract obligations, no finding can be made that its peaceful efforts to bring Weiss-
man back to New York was for an illegal purpose. The undersigned emphasizes
the word peaceful, because it is the Company's contention that in fact the Union
used fraud and violence to achieve its aim. No credible testimony was intro-
duced to support this assertion of fraud and violence. Indeed the only testi-
mony was the remotest sort of hearsay testified to by Weissman. This hearsay
was admitted into the record over the strenuous objection of counsel for the
Board and the Union on the express statement of counsel for the
Company that the testimony, although hearsay, should be admitted, since it
would together with other evidence to be adduced by the Company spell out a
complete pattern. But no other evidence was ever produced, despite the ex-
press statement by the undersigned that the evidence presented by the Company
was of so remote a character that it could not support any findings by the Board.
It is true that under the Act hearsay evidence is not as a matter of law excluded
in Board hearings. But that does not mean that the ordinary principles of evi-
dence as to the weight to be given to and the method of evaluating hearsay testi-
mony are also to be disregarded. Here we have only Weissman's recounting of
rumors and incidents which were in turn recounted to him by others, but no
direct testimony to support the contention of the Company that the Union had
engaged in fraud and violence. The undersigned, accordingly, finds, on this
record, that the Union did not engage in fraud and violence. Since the Com-
pany's contention is not supported by the record, it is accordingly unnecessary
to consider its legal efficacy.
One further point should be noted however. The evidence, unsatisfactory
as it is for the purposes of proof, relates solely to events occurring in 1940 and
1941. Thus the most the Company could have established in any event was
that the Union pursued an illegal purpose in 1940 and 1941. It is evident from
This name was also a trade name used by the Company in the sale of its goods.
e 318 U. S. 9.
30 151 F. (2d) 854 (C. C. A. 8).
13 An additional ground considered by the undersigned as the basis for permitting this
evidence in the record, was the argument that the evidence might be relevant in connec-
tion with the actions taken by the Board of Trade.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the record that the dispute of 1940 and 1941 terminated, if not in a solution, at
]east because of a failure to pursue it further. Conceding for the purpose of
argument that the objective of the Union in 1940 and 1941 was an illegal one,
no showing was made that this objective continued over to 1945, when organiza-
tion commenced at the Company's Harrodsburg plant,12 or that the activities
of the Union in attempting to organize the plant in 1945 was in any manner at
variance with the normal, lawful activities of labor organizations.19
B. Interference, restraint, and coercion
1. By Weissman and Drimmer
The Union's drive to organize the employees of the Company's Harrodsburg
plant commenced sometime in March 1945. It was assisted in its beginning by
one Virginia Chiarantiano, a former employee of the Company at the Harrods-
burg plant. Letters urging affiliation with the Union were mailed from the
Cincinnati office of the Union to several of the employees in the plant. As a
result of these letters and the efforts of Chiarantiano, a number of the employees
signed union cards in April and May.
The Company was quick to demonstrate its hostility to the Union and its antip-
athy to this campaign . Both Weissman himself and George Drimmer, general
manager of the plant, participated in this activity.
Edna Teater was one of the first to join the Union. After receiving a letter
from the Cincinnati office of the Union, she went to Cincinnati on April 14
'lonsult with Mr. Solomon, a union official. Upon her return she distributed
union cards to several of the girls and secured their signatures to these cards.
Teater testified that, early in May, Drimmer came to her table (luring working
hours and that the following conversation ensued :
He said, "I bear that Virginia Chiarantiano is in town" and he asked if
I had seen her, and I told him I had, and lie wanted to know what she had
to say and I said she was asking about the girls and the work and things
in general, and he said "She didn't say anything about the Union" and I
said, "Yes, she did" "And what did she say?" I said "She thinks it would
be a fine thing for us." So he asked me why her husband didn't belong to
the Union, and I told him I didn't know.
According to Teater's testimony, Drimmer left and shortly thereafter, Edith
Ransdell, one of the supervisors," told Teater to go into Weissman's office. There,
according to Teater:
Well, Mr. Weissman asked me if I had seen Virginia Chiarantiano and
what she had to say, and I told him that she was here trying to get the girls
signed up for the Union, and he asked if I signed a card and I told him I did,
and he wanted to know why I signed the card, and I told him because I wanted
more pay and more agreeable working hours and he wanted to know how
much more did I want, and I told him 85 cents an hour and he laughed and
12 There was some testimony in the record that one Virginia Chiarantiano had, on behalf
of the Union, stated that she was going to put the Company out of business. For reasons
set out more fully below, the undersigned does not credit this testimony, and in any event,
an isolated statement of the kind by an individual whose connection with the Union was
at best tenuous, would not suffice to spell out a course of union action. Nor does the under-
signed credit the testimony of Leavenworth that a similar threat was made to him by an
attorney, Weintraub, in October, 1945.
n The undersigned credits the testimony of Solomon, the union representative at the
hearing, that the Union's objective in attempting to organize the Company's Harrodsburg
plant was the normal one of establishing bargaining relations.
14 For a discussion of the duties of these supervisors, see below.
FRED P. WEISSMAN COMPANY 1015
said if I wanted 85 cents an hour I should be in Communist Russia where
they were begging for a piece of bread. . . . And he asked me why I
wouldn't consider an organization among the workers, a friendly agreement
of some kind and not a union, and then later he stated that, "If you are de-
termined to have the Union, this is the one I prefer." . . . He said that
the shops in Cincinnati, the working conditions were very poor. They didn't
have adequate washrooms and they didn't have . . . a nurse, and that we
should appreciate the working conditions we had here in comparison with
those in Cincinnati.
Teater's testimony about her conversation with Driminer was corroborated
by Gladys Drury.
Weissman denied all of Teater's testimony with reference to the conversation
with him, and Drimmer similarly denied her testimony with reference to the
conversation with him.
Both Teater and Drury were forthright and credible witnesses. Weissman
and Drimmer, especially the latter, were on the contrary evasive and unconvinc-
ing. In addition, for the reasons set out more fully below in the discussion of
their testimony on the exclusions, the undersigned cannot credit their testimony.
The undersigned, accordingly, credits the testimony of Teater and Drury and
finds that the incidents occurred as set out in the testimony of Teater above.
This finding is corroborated by the evidence in the record which indicates that
Weissman, as a result of the occurrences of 1940-41, entertained a considerable
hostility against the Union. It is therefore entirely natural and credible that
Weissman's first reaction to the news of union organization would be one of
hostility and opposition.
This finding finds further support in the undenied 16 testimony of Teater,
Drury and Shewmaker concerning a speech made by Weissman to the assembled
employees in the plant one afternoon about May 10. In this speech Weissman
further demonstrated his hostility to the Union. He contrasted the working
conditions in the Harrodsburg shop to those in Cincinnati ; asserted that the
statements in the circulars distributed by the Union concerning wage rates were
untrue and "he asked that the workers continue to cooperate and operate the
plant in the manner that it had been in the past instead of the way the Cincin-
natians would have it operate."
Floyd Shirley testified that sometime in May he had a conversation with Weiss-
man in Weissman's office," in which Weissman asked him if he had ever received
any letters or cards from "the Union people." Weissman did not deny this con-
versation, and the undersigned credits the testimony of Shirley.
The undersigned finds that by the above statements of Weissman and Drimmer,
the Company interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
2. By the supervisors
In addition to the testimony as to interference, restraint, and coercion of union
activity by Weissman and Drimmer, there was considerable evidence concerning
activity of this nature by certain supervisors in the plant. This evidence was
to a large extent undenied, the Company resting its case as to them on the ground
that they in fact lacked supervisory authority, and that accordingly their actions
15 Weissman did not deny making this speech. Drimmer testified that Weissman, from
time to time , gave general talks to the employees , but never to Drimmer 's knowledge, re-
ferred to this Union or any other union.
'g Shirley testified he could not remember whether Weissman sent for him or whether
Weissman called Shirley as Shirley was going through the hall.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could not be imputed to the Company. Accordingly, before considering the evi-
dence as to their anti-union activities, we will first examine the duties of these
supervisors and discuss this contention of the Company.
It is evident from the Company's own witnesses that the employees in question
exercised supervisory authority. They were denominated by the Company as
supervisors. According to Weissman their job was to "watch the flow of work
and see that there are no bottlenecks and to help move the work." A supervisor
acted as an "intermediary" between the girls and the management. Unlike the
ordinary employee, they. were paid on a weekly salary basis. Drimmer testified
that in a plant of approximately 2,50 employees, with only three admitted repre-
sentatives of the Company, Drummer, Goodman and Markowitz, it would be
impractical for the employees to take all their problems to these three and this
fact made it necessary to have supervisors. Gooduuni testified that it was the
duty of these supervisors to follow out his instructions with regard to production
and Markowitz's instructions with regard to quality. A number of the employees
called as witnesses for the Company testified, in response to questions by Com-
pany's counsel, that they regarded a supervisor as one of the girls and not as a
boss.17 But the testimony of these same witnesses is replete with phrases indi-
cating the supervisory nature of the duties of these supervisors. According to
these witnesses, a supervisor "keeps the work moving," "sees that ... our work
goes out smoothly ... and trains new girls," sometimes takes up her problems
with Markowitz or Goodman, "tries to keep it all working along smoothly ," "sees
that work goes out all right," "takes care of our work," "just sees that the work
goes through . . . all right," "sees that our work is all right," "supervises
us," "supervises the work. She brings it to us or sees that it is brought to us,
and that it is taken from us." If an employee ran out of work, the employee
would tell the supervisor. If anything was wrong with the work, the employee
would give it to the supervisor and she "makes it all right." When the employees
are on time work, the supervisor "signs our paper, and if we had to change opera-
tions, she [the supervisor] asks Mr. Goodman and then she tells us about what
to do, and when to go off and like that."
The supervisors themselves also testified as to their duties. Lavina King,
supervisor in the examining department, testified that although she gets her
instructions from Goodman it is she who tells the girls what to do, and, if
the girls have any question, they bring it to her. Edith Ransdell, supervisor in
the finishing department, testified to similar effect. Lurene Hellard, supervisor
in the pressing department, testified : "I move the work up and see that it goes
out smoothly, and train new trainees."
The Company's contention would relegate these supervisors to the work of
mere messenger girls ; insisting that these supervisors worked only under detailed
instructions from Goodman on production or Markowitz on quality. But it is
obvious that their functions include more than that. The Company's own state-
ment as to the practical need for these supervisors, that the three men, Drimmer,
Goodman, and Markowitz, could not, in addition to their other duties, physically
supervise the work of 250 employees, indicates clearly that these supervisors
were at the minimum agents of the Company for carrying out the Company's
instructions. That these instructions came from persons higher in the manage-
ment hierarchy would seem to be immaterial, and indeed the testimony of the
Company's own witnesses indicates that the supervisors did not always take
matters up with higher management officials , and one witness testified that she
did not know where her supervisor got her instructions from, but knew, signifi-
14 Employee witnesses for the Board on the other hand testified that they considered a
supervisor to be a boss and not "one of the girls."
FRED P. WEISSMAN COMPANY 1017
calitly, that she, the witness, got her instructions from the supervisor. To view
the record in the light most favorable to the Company, these supervisors, ill
Weissnan's own words, serve as "intermediaries" between the girls and manage-
ment. It should be emphasized, as the Supreme Court has done, that the inquiry
here is not one of the applicability of the strict rule of respon.deat superior.'5
The inquiry here is rather whether the employees were, in fact, coerced by the
activities of these supervisors, and, if such finding is made, what remedy should
be invoked to remove the effects of such coercion.
Viewed by this standard, the activities of these supervisors clearly constituted
interference, restraint and coercion. Their status as spokesmen for the Company
on all matters of normal working duties, the remarks themselves, which, as shown
below, they attributed to Weissman, and the support these remarks received from
the fact that similar statements were made by Weissman and Drimmer, can per-
mit no other conclusion under the circumstances.19
We turn now to the testimony concerning the anti-union statements made by
these supervisors.
Margie Springate testified that in early May, 1945, Lavina King, supervisor in
the examining department , spoke to a group of girls in the plant about noon hour
and said "she didn't think we should work for the Union if we were going to con-
tinue to work for Weissman." This statement was made after a visit by King to
Weissman's office. This testimony was corroborated by Iva Shewmaker and
Gladys Drury. King testified that she didn't recall making this statement but
added that she may have had discussion with these employees about the Union.
The undersigned credits the testimony of Springate, Shewmaker and Drury and
finds that King made the statement set out above.
About July 17, there was circulated among the employees who had signed union
cards a petition requesting the return of these cards. This petition addressed to
Mr. David Solomon of the Cincinnati Joint Board of the Union read as follows:
We the undersigned do not want you to act for us any longer. So please
return all the cards of the undersigned to us immediately, as we feel capable
of attending our own affairs.
Lavina King and Edith Ransdell admitted circulating this petition. Edith
Ransdell took the petition to the homes of various employees to secure their
signatures. Iva Shewmaker testified that when Ransdell asked her to sign the
petition :
18 In International Association of Machinists v. N. L. R . B., 311 U. S . 72, the Supreme
Court said at p. SO:
We are dealing here not with private rights (Amalgamated Utility Workers v. Con-
solidated Edison Co ., 309 U. S. 261 ) nor with technical concepts pertinent to an em-
ployer's legal responsibility to third persons for acts of his servants, but with a clear
legislative policy to free the collective bargaining process from all taint of an em-
ployer ' s compulsion , domination , or influence . The existence of that interference must
be determined by careful scrutiny of all the factors , often subtle , which restrain the
employees ' choice and for which the employer may fairly be said to be responsible.
Thus, where the employees would have just cause to believe that solicitors professedly
for a labor organization were acting for and on behalf of the management , the Board
would be justified in concluding that they did not have the complete and unhampered
freedom of choice which the Act contemplates.
See also H. J. Heinz Company v. N. L. R. B., 311 U. S. 514, 520-1, and N. L. R. B. v. Link-
Belt Company , 311 U . S. 584, 599.
19 The undersigned does not consider material , in this connection , the testimony of Rans-
dell that she was solicited to join the Union by Chiarantiano , especially since It is not at
all clear from the record that Ransdell was a supervisor at the time. Nor does the under-
signed consider material the testimony of Hellard that she received union cards in the
mail, or the testimony of Weissman that employees in the category of supervisors are in-
cluded in the bargaining units under the practice In New York.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she says, "There will never be a Union anyway," and I said, "Well if that's
what Mr. Weissman wants, I will sign the card or the Petition" and . . .
she said, "You know that's what he wants."
Ethell Sallee testified that while soliciting her name Ransdell said, "I had
better [sign] if I wanted to hold my job." Ransdell, although she admitted eir-
culating the petition, denied presenting it to Sallee, and also denied that she
ever told anyone that Weissman wished them to sign. In another portion of her
testimony, however, Ransdell stated she could not remember her conversation
with Shewmaker. Ransdell was a reluctant and evasive witness; and it is
significant, as found below, that she did not deny her anti-union remarks to Sallee
in October. Sallee and Shewmaker, particularly the former, were direct and
forthright witnesses. The undersigned credits their testimony and finds that
Ransdell made the statements set out above.
The undersigned further finds that by the anti-union statements of King and
Ransdell, by their circulation of the anti-union petition, and by their urging
employees to withdraw from the Union, the Company interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act.20
C. The Board of Trade
The organization of the Board of Trade and the action it took in 1941 to bring
the Company to Harrodsburg has already been sketched. Shortly after the
Union commenced its campaign to organize the employees of the Company, this
matter was brought to the attention of the Board of Trade by its president, B. F.
Norfleet. He warned the Board of Trade of the "possible loss of the industry"
and the consequent "danger to the community investment" if the union campaign
were successful. After discussion, Norfleet was "authorized to conduct . . .
a campaign of education for the protection of the general interest of the com-
munity and the workers." The "campaign of education" consisted of a series of
articles signed by Norfleet and which appeared in the weekly Harrodsburg Herald
from May 4, 1945, to February 15, 1946. These articles addressed themselves to
refuting the claims made as to wage rates in union leaflets, and in subsequent
articles dealt in great length on the subject of "Destructive Labor Racketeering."
For this purpose, the articles quoted extensively from numerous articles which had
appeared in national publications attacking the policies of labor organizations
generally, both A. F. of L. and C. I. 0., and especially with reference to the
defense effort of 1940-41. As its chief theme the articles emphasized that the:
"basic reason why a factory or plant will consider selecting a small town,
rather than a large city, as a location . . . is to get away from the
highly industrialized city, where they will not be subjected to the threat of
strikes, plant interference, obstruction methods of various kinds, including
violence, and the blighting influence of unprincipled labor agitators, who do
not work, but seek to grow fat on the dues which they force employers to
deduct from the pay checks of employees, through the check-off system ...
"If we, of the small towns, through cooperation of employees, bring this
blighting influence into our midst, we destroy the reason for the plant to leave
the large industrial center to locate in the small town."
Norfleet, in addition, early in May, sent to about 150 employees of the Company
two letters setting out similar arguments, and urging employees who had signed
20 Other acts and statements of these supervisors which constituted further instances of
interference, restraint, and coercion are dealt with below in the section on the exclusions.
FRED P . WEISSMAN COMPANY 1019
union cards to "retract the step they have taken." He asked the employees,
further, by signing enclosed statements and returning them to the Board of Trade,
to "indicate their intentions of future Loyalty and Faith in the Future of Sport-
leigh Hall" and to express "loyalty and faith to your friends, the Mercer Board
of Trade, the Stockholders of the Mercer Industrial Corporation, the Plant Man-
agement and your fellow employees." About 125 employees signed and returned
copies of this statement.
It is clear that such activities by an employer or by an agent acting on behalf
of an employer would constitute a violation of the Act. But the record does
not justify a finding that the Board of Trade here was acting on behalf of or
as an agent of the Company. It is true that Weissman, Drimmer, the general
manager, and Leavenworth, Weissman's attorney, were all members of the
Board of Trade, and Weissman, a vice-president of the Board of Trade. But no
evidence is present to show that any of these three or any other official of the
Company actually participated, advised or consulted on the Board of Trade's
anti-union campaign." The record shows merely that Weissman complimented
Norfleet on the articles.
It is true that this anti-union campaign of the Board of Trade may have and
probably did serve the interest of the employer-, and it is also true, that this
action of the Board of Trade followed along the lines of and complemented the
actions of the Company, as found above. Nevertheless, to establish that the
Board of Trade was an employer within the meaning of Section 2 (2) of the Act,
it is, in the opinion of the undersigned, necessary to find a more direct connection
between the Company and the Board of Trade and to be able to demonstrate
joint participation and action 22 Accordingly, the undersigned will recommend
that the complaint be dismissed as to the Board of Trade.
This is not to say, however, that the Company here should be considered free
from all responsibility for the actions of the Board of Trade. Weissman was
in fact a vice-president of the Board of Trade. Although he may have had no
control over the policies of the Board of Trade, it would not have been unreason-
able for the employees to associate him with the campaign, and to assume that
the campaign had, in fact, Weissman's approval and blessing.23 This impression
would have been further reinforced by the fact that, among other things, the
articles of the Board of Trade indicated that a successful union campaign would
cause the Company to withdraw from the community, and that the Board of
Trade requested the employees to indicate their "loyalty and faith to . . . the
Plant Management" by repudiating the Union. Weissman read and knew of
the contents of these articles. In this setting, there was a clear responsibility
upon the Company to disassociate itself from the views expressed. Under these
circumstances, the Company, by remaining silent,- acquiesced in, approved and
endorsed the views and activities of the Board of Trade24 By such action, the
Company interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
D. The exclusions
1. Exclusion of September 19, 1945
The main outlines of the events of September 19, 1945, are substantially uh-
contradicted in the record. Shortly before 1 p. in. on September 19, on return-
" Weissman -testified that he had attended only one meeting of the Board of Trade, in
the fall of 1945.
r' See N. L. R . B. v. American Pearl Button Co., 149 F. (2d) 311 ( C. C. A. 8).
" As stated above , Weissman , in fact, did express his approval of the articles.
24 Compare N. L. R. B. v. Taylor- Colquitt Company, 140 F. (2d) 92 ( C. C. A. 4).
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing from lunch, Edna Teater, Gladys Drury and Margie Springate, the three
employees most active in behalf of the Union, were met at the door of the plant
by a group of the Company's employees. Each was told that her services were
no longer needed because she "was working for the Union," and that she could
not enter the plant. Edna Teater attempted, nevertheless, to enter the plant,
and as a result a scuffle ensued between Teater and several of the other em-
ployees. During the course of this scuffle, Teater was pushed back from the
entrance of the plant and bruised. Teater then asked Floyd Shirley, a cutter
in the Company's employ, to take her home and he obliged. The other em-
ployees, with the exception of Drury and Springate, who were again told they
could not enter the plant, went back into the plant at about 2 o'clock.' Drury
and Springate remained on the lawn for a little while thereafter, and subsequently
left.
Although none of the above facts were in dispute, a considerable dispute dues
exist in the record on the question of the participation in and knowledge of this
exclusion of September 19 by responsible officials of the Company. No dispute
exists as to the presence and knowledge of several of the supervisors for whose
actions, it has been found above, the Company is responsible. Edith Ransdell
and Leona Watts admitted both their presence at the time of the exclusion and
knowledge that the exclusion was because of union activities. There was con-
siderable other testimony to indicate that the supervisors played a more active
role. One of the Company's witnesses testified that Lavina King participated
in the decision to exclude the union employees, another that Lurene Hellard en-
gaged in the scuffle with Teater. This evidence alone would be sufficient to
establish the responsibility of the Company. As has been found above, these
supervisors were the spokesmen for the Company in the Company's relation
with its employees ; it was their function to see that production progressed
smoothly and efficiently. Thus, by their presence and participation in the ex-
clusion of September 19, they clearly evidenced the Company's approval of the
action of the employees engaged in the exclusion, and certainly the Company's
acquiescence in taking time off from work and exercising the Company's au-
thority to determine who should or should not work for the Company.
Moreover, the Company's responsibility for these exclusions is clear even
apart from the activities of these supervisors. It is evident from the record
that the admittedly responsible officials of the Company, Drimmer, Goodman
and Markowitz, had knowledge of the exclusion of September 19 and that
Drimmer at least was present and indicated his approval of the action taken.
Teater testified that, on her leaving the plant and walking to Shirley's car with
Shirley, Drimmer was present and walked behind her. This testimony was
corroborated by Margie Springate, Iva Shewmaker and Floyd Shirley. Drury
and Springate also testified that they saw Drimmer a couple of other times
during the exclusions. Especially significant was the testimony of Mildred
Sims to the effect that. after she entered the plant, but, before the incident of
the exclusion was entirely over, she was told to go out of the plant by Drimmer.
Drimmer denied all of this testimony. His testimony, however, that the entire
incident of the exclusions never came to his attention and that he noticed
nothing unusual or untoward during the whole period of the exclusions is
incredible, and the undersigned cannot credit his denials. Several other wit-
nesses of the Company testified that they did not see Drimmer during this
incident. Others denied that Drimmer ordered any employees out of the plant.
However, aside from the very obvious possibility that some of the employees
may have seen Drimmer, and others may have not, the testimony of these
^ The testimony as to the actual time the employees entered the plant is hopelessly con-
fused and conflicting . Two o 'clock is selected as about the most likely time as shown by
all the evidence.
FRED P. WEISSMAN COMPANY 1021
witnesses for the Company cannot be credited in this respect. Although posi-
tive and certain that they did not see Drimmer during the exclusions (or
Weissman, Markowitz, Goodman, or Mrs. Weissman), their testimony in most
other respects was extremely vague and unconvincing.' In contrast, the testi-
mony of Teater, Springate, Shewmaker, Shirley, and Drury was clear and
convincing. This was especially true of the testimony of Mildred Sims. It is
extremely significant, in the judgment of the undersigned, that her testimony
to the effect that Drimmer ordered girls out of the plant came in response to
questions put by the Trial Examiner and not in answer to those put by counsel
for the Board. In addition, it is hardly credible that employees would leave
the plant during working hours of their own volition or at the suggestion of
some person without authority. Because of all these considerations, the under-
signed credits the testimony of Teater, Springate, Shewmaker, Drury, Shirley,
and Sims and finds that Drimmer was present at and witnessed the exclusions,
and ordered the girls out of the plant during the time of the exclusions.
Even apart from this finding of Drimmer's participation in the exclusions, it
is evident from the record that the Company's officials had knowledge of the
events of September 19. It is clear from the testimony of the Company's own
witnesses that substantially all of the employees of the plant were outside in
front of the plant between the hours of 1 and 2 p. in. on September 19, that con-
siderable noise and confusion attended the incident, and that a considerable
number of employees already in the plant went outside to "see what was going
on." n In the face of this evidence, the Company contends that Drimmer, Good-
man and Markowitz, all admittedly present in the plant during this period, noticed
nothing which required their attention 2'
2e Kurtz, for example, testified that she went into the plant and then went out but was
not ordered out by Drimmer, Her testimony reads as follows
Q. You say you went in the plant?
A. Uh-huh.
Q. And after you got in the plant where did you go?
A. I went back to work.
Q. Now, did you stay in the plant?
A. I came out once.
Q. How did you happen to come out?
A. Well, someone said for as to go out.
Q. Who said so?
A. I don't remember.
Q. Was it a girl?
A. I don't remember who it was.
Q. Well, I will say it this way. Was it Mr. Drimmerl
A. No, sir.
" Mollie Wheeler testified :
A. Well, I checked in eleven minutes till 1 : 00 o'clock.
Q. Now this was before there was any fight?
A. Absolutely,
Q. When did you come out of the plant?
A. When I heard all this fracas.
Q. You heard it all inside the plant?
A. Well, you see, they were just coming and going.
Q. They were coming in and going out?
1
A. Yes, sir, and you know, naturally if there was a little excitement on the outside
you would go and see what it was.
28 Drimmer testified :
Q. Were you in the production part of the plant at any time the balance of that
afternoon, September the 19th?
A. Yes, I was.
Q. Did you see the girls come in about a quarter to 2: 00 that day?
A. No sir, I did not.
Q. Didn't see a large group of girls come in?
A. No, sir.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is on its face incredible, and, indeed, Markowitz, when pressed, admitted
knowledge that production did not start until late that day, and further that
he learned that same afternoon that the girls had been excluded because of
union activities.
2. Floyd Shirley
After taking Teater home, Shirley returned to the plant before the employees
had all gone in. When the employees began to enter the plant, Shirley started
in also. He was stopped, however, by Lurene Hellard, who questioned him about
having taken Teater home and asked him whether he was working for the
Union. Shirley replied that he was neither working for nor against the Union
and was permitted to go in. That same afternoon, Shirley was visited twice
at work by a group of employees in the plant. At least one of the groups was
headed by Laviia King.2D Both groups told Shirley they were not satisfied with
his explanation. On the second occasion, King said to him, "You have either got
to be for the Union or you have got to be against it . . . You can't be in be-
tween." Shirley replied "I don't see why I can't," and after some further dis-
cussion, the group left Shirley.
Shirley testified that about 10: 30 on the morning of the 20th, Drimmer came
to him at work and asked him if he had heard any more about the Union, and
that Shirley replied that they had been at his home the night before; Shirley
asked what Weissman thought about the trouble yesterday, and Drimmer replied
that Weissman had not said anything about it, that "he didn't want to get
messed up in it." Drimmer testified that he did not mention the Union, that
Shirley remarked to him that what had happened to the girls was not right and
that he, Drimmer, replied, "Shirley, please don't involve me in it. I don't want
to have nothing to do with it, and don't talk to tire any more about it." The
undersigned has already found that Drimmer participated in the exclusions of
September 19, and knew that the girls were being excluded on that day because
of their union activities, and accordingly credits Shirley's testimony.
While checking out at noon, Martha Weldon, one of the employees, came up
to Shirley, told him that the girls had learned that there had been a union
meeting at his house the previous night, and accordingly did not want him to
come back to work. Several of the girls clapped after Weldon made her state-
merit.'" Shirley did not return to work after lunch that day.
3. Requests for reinstatement
Teater, Springate, Drury and Shirley, each tried to reach Weissman by phone
on September 26 or 27. Teater, Drury and Springate were all unsuccessful,
although Springate tried three times, leaving her name each time. Shirley
called on the 26th, and reached Weissman. Weissman asked him to come in
on Friday, the 28th, to see him, but to call first. Shirley went to the plant at
2: 00 p. in. on the 28th but learned that Weissman was in Lexington. On or about
September 28, all five of these employees received termination slips from the
Company stating that they had voluntarily quit. About October 2 or 3, Getreu,
Q. As far as you were concerned, they were in at 1: 00 o'clock their usual time?
A. Yes, sir.
Q. Did you notice any absences that afternoon?
A. No, sir.
° Shirley testified that the other group was headed by Lurene Ilellard, while llellard
testified that she was present only in the group for which King was the spokesman. The
undersigned finds it unnecessary to resolve this conflict.
n Iva Shewmaker testified that Drimmer was present on this occasion, and spoke to an
employee, Frances Gabhart, about the incident. This testimony was denied. Shirley testi-
fied that he did not see Drimmer at the time. The undersigned is not convinced that Shew-
maker's testimony on this point is accurate, and accordingly makes no findings on the point.
FRED P . WEISSMAN COMPANY 1023
a Field Examiner for the Board , spoke to Weissman 's counsel , Leavenworth, in
connection with charges filed by the Union alleging that these five employees had
been discriminatorily discharged.
On or about October 6, the Company received from each of the four employees
a letter each stating as follows :
A day or two ago I received a notice from you alleging that I had
voluntarily quit your employment. This alleged fact is not true.
I was prevented from entering your building and denied the right to
work by your straw bosses , who claimed to be acting on orders from you.
I made repeated efforts to see you and to talk to you over the telephone but
you have refused to see me or talk to me.
I am ready, able and willing to continue with my works'
The Company never answered any of these letters. Weissman, when asked
why he had not replied to these letters , testified : "I can't say that I have any
particular reason except on advice of counsel ." His counsel , Leavenworth , testi-
fied that it was his advice that Weissman followed in not replying to the letters.
When asked by the undersigned what the basis of that advice was, Leavenworth
replied : "Well , I prefer to keep that to myself if you don ' t mind. That is pro-
fessional advice, and I have something in the back of my head I don't like to
disclose."
4. Ethel Sallee
Sometime in October , Ransdell told Sallee that she better not work for the
Union if she wanted a job .12 On October 29, Sallee was told by a group of em-
ployees that she could no longer work for the Company because she was for the
Union. Her story is best told in her own words :
Well, I went to work that morning and they had been bothering me about
joining the Union and accusing me of having Union meetings.
. . . they kept bothering me, and before noon I went to Drimmer 's office
and explained to him what was happening in the plant , and he said to me,
he said, "Are they bothering you in your work?"
And I said, "They absolutely are," and he said, "Well, you go back to work.
I will see that they don't bother you any more." So I went on back to work,
. . . when we checked out at noon there was some of the girls on the
outside and they told me, . . . '!You are for the Union . You don't have
any job here" . . . "You needn 't cone back this afternoon because the doors
will be locked."
. . . Well, so I went up on the street, came up on the street at noon and
saw Mr. Driminer up there, just above the Blue Ribbon Restaurant, and
told him what had happened out at the plant , and he stated . . . "You go
on back to work and go on back out there."
I said, "It would be no use, Mr. Drimmer , going back . They done told me
the doors would be locked." And he told me the second time to go on back
and he would meet me out there, and so I went on back, and the doors were
locked, and the girls were standing on the outside , so I went on up on the
porch, and one of the girls kept saying . . . one of them said to me, "You just
as well go on back . You don ' t have any job . You are for the Union."
They told me that a time or two , and I said. "I am waiting for Mr.
Drimmer. He told me to come back and he would meet me here ." So they
told me that again, and I said , "I am waiting here all day until it gets dark to
see Mr. Drimmer . He told me to come hack , and I am waiting here for him."
31 The letter from Shirley although different in form was similar in substance.
32 This finding is based on Sallee ' s undenied testimony.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
So when Mr. Drimmer came back Mr. Weissman wasn't with him, and
while Mr. Drimmer was up talking to me on the porch, Mr. Weissman put in
a long distance call, and Mr. Drimmer answered the call, and I waited for
him, and he cane out then after he got through talking to Mr. Weissman,
and he said he was sorry about the matter but he couldn't help it, and he
didn't have anything to do with the Union, and for me to go on home and
to call Mr. Weissman the next morning over the phone and talk to him, and
he says, "I will explain the matter to him as you have to me."
Which I did, and I went on home, and I called Mr. Weissman the next
morning, and Mr. Weissman said he was so surprised when he found I
wasn't at work the next morning when he came in, and that they needed
me at work, and I was one of his old hands, and he asked me if I would
see the girls and see if they would apologize to me for what they had done
to me.
. . . And I said to him, I told him, I says, I said to Mr. Weissman,
I said, "You are the boss," and he says, "Are you going to blame me?"
. . . well, I said that he was the one that hired me, and he was the
one that fired me.
. . . and he asked me, would I keep in touch with Mr. Drimmer, for
what purpose I don't know, so I told him I would be glad to talk to Mr.
Drimmer at any time.
Drimmer denied that he had any conversation with Sallee on October 29th,
although he testified that he did speak with her sometime in November. Weiss-
man also denied that he had any conversation with Sallee on the 30th, or at
any time thereafter.
However, Sallee's testimony as to her being excluded from the plant was
corroborated by the Company's own witnesses. One witness further corrobo-
rated Sallee's testimony that she came back to the plant at noon and insisted
on seeing Drimmer. The Company further attempted to discredit Sallee's testi-
mony by introducing evidence that no long distance call was made to the plant
by Weissman on October 29. But the testimony of Weissman and Drimmer
establishes that Weissman was in fact not in Harrodsburg at the time in
question, that he arrived later that day, and that a long distance call was put
through on the afternoon of October 29 to Eastern Air Lines to learn of Weiss-
man's whereabouts. This evidence rather than discrediting Sallee's testimony,
in the opinion of the undersigned, furnishes corroborative detail. Sallee was
an exceptionally forthright and convincing witness. Because of all of these
considerations, the undersigned credits Sallee's testimony and finds that the
incidents occurred as testified to by her.
Shortly after October 29, Sallee received a termination slip from the Company
with the notation that she had voluntarily quit on October 29. On November
13, Sallee wrote to the Company a letter stating she had been excluded from
the plant. The letter was in substantially the same form as that sent by the
other excluded employees and set out above. Thereafter, Sallee sent the Com-
pany another letter in which she stated that she wanted her job back and
was "ready to go back to work." As in the case of the other employees, the
Company did not respond to either of these letters.
5. Conclusions
The Company's contention, in brief, is that the exclusion of the five employees
was entirely the action of other employees opposed to the Union and that no
responsible official of the Company had any knowledge of these events or of
their nature. This contention is clearly without merit.
FRED P. WEISSMAN COMPANY 1025
It is true that the record may not support a finding that the Company here was
the originator and motivating force behind the exclusions . Indeed the state of
the record will not permit any finding as to who or what led to these exclusions
on September 19. There is some rather vague testimony by some of the witnesses
that a group of the employees got together in the plant on the morning of the 19th
and decided to exclude those active for the Union. Others testified that the dis-
cussion and decision to exclude was made during the noon hour while waiting
for rides back to work . But none of these witnesses were at all clear as to
what or who prompted the discussion that day, nor the precise reason for the
exclusion.33
However, although the actual origin of and reasons for the exclusion of
September 19th may be shrouded in doubt, it is evident , as has been found above,
that the Company participated in and encouraged the exclusion through the
actions of its supervisors and its general manager, Drimmer. Under these cir-
cumstances , the Company is clearly responsible for the exclusions under the
doctrine of Clover Fork Coal Co. v. N. L. R. B.3'
Moreover, even apart from the actual participation and encouragement in the
exclusions by its officials , the Company must be held responsible for the exclusions.
It is evident , as has been found above , that the Company had knowledge of
the exclusions and their nature at the time of the exclusions ," and that the matter
was again brought to their attention by the visit of the agent of the Board on
October 2, and.once again by the letters sent by the excluded employees. The
Company cannot in the face of these circumstances successfully maintain the
position, as advised by counsel Leavenworth , "to stay out of this dispute no
matter what it was, and not to pay any attention to it." 88 The courts have
held that such a course of action was not open to the Company , that there is
an affirmative duty imposed upon an employer by the Act to insure that its right
of discharge is not delegated to any union or anti -union group , and that , in per-
mitting any such group to exercise that right , the employer has violated the
Act."' The vice of the Company's position is clearly illustrated by the facts in
33 Laura Fuell testified that she was told by Virginia Chiarantiano in April 1945, that
she (Chiarantiano ) was going to put Weissman out of business . Edith Ramsdell testified
that Chiarantiano made similar statements to her also in April . The record , however,
contains no credible explanation why such remarks made in April should lead to exclusions
in September , with no intervening event to feed the fire. Indeed , although Ransdell
testified that she told several of the girls about Chiarantiano 's remarks , Fuell could
not remember ever having told anyone about the remarks . Weldon, another employee,
testified that Fuell told the girls about Chiarantiano 's remarks on September 20th,
whereas another employee said she heard this from Fuell sometime in September . Others
testified that they heard "rumors" that the Union was attempting to drive the Company
from Harrodsburg , but could not pin these rumors down. Significantly , however, only
one of the girls active in the exclusions gave this as the reason for the decision to
exclude. Fuell said it was because the Union employees "caused a , disturbance in the
plant ," Jenkins testified that : "we knew if they got strong ehough they would win,
so we thought it was our duty to stop it before they got started." Gabhart testified :
"we had as much right to put them out and keep out the Union as they did to put it in."
3497 F. (2d) 331 (C. C. A. 6).
3s Although it is not a requisite for Company responsibility that Weissman himself
knew about the exclusions at the time they occurred , it should be noted that Markowitz,
after admitting that he learned that the girls had been excluded because of union activities
that same day, also admitted that he may have discussed this with Weissman later on.
36 At another point in his testimony , Leavenworth said : "I have always told Weissman
that any thing that happens in the plant , any disputes , just stay clear of it."
81 N. L. R. B. v. Goodyear Tire & Rubber Company, 129 F. (2d) 661 (C. C. A. 5) ;
N. L. R. B. v. Hudson Motor Car Company, 128 F. (2d) 528 (C. C. A. 6). For the
affirmative duty to afford protection to employees against violence because of union
activities, see N. L. R . B. v. General Motors Corporation , 116 F . ( 2d) 306 (C. C. A. 7),
at p. 311.
701592-47-vol. 69 66
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the present case. Here there were exclusions because of union activities on
September 19 and again on September 20. Although the Company had knowledge
of these exclusions and complaint was made to it on at least two occasions in
early October, it took no action. The logical consequences of the Company's
failure to act occurred on October 29, when again an employee was excluded
because of union activities. There is no question that this action of October
29 was made possible only by the inaction of the Company and its failure to
take steps to remedy the effects of the exclusions of September 19 and 20. Clearly,
the fundamental purpose of the Act to guarantee the freedom to organize would
be subverted if this contention of the Company were upheld.
The undersigned finds that the Company discriminated against Edna Teater,
Margie Springate, Gladys Drury, Floyd Shirley and Ethel Sallee, in regard to
their hire and tenure of employment, thereby discouraging membership in a labor
organization.
E. The successor corporation
The supplement to the amended complaint alleged that the Corporation was
a successor to the Company, operated by Weissman as an individual. This
allegation is clearly sustained by the record. The Corporation had the same
name as the Company. Weissman, owner of the Company, held 75 per cent of
the shares of the Corporation and was president of the Corporation. Approxi-
mately 25 per cent of the shares was held by his wife, and four shares were held
by his counsel, Leavenworth. Substantially all the assets of the Company were
transferred to the Corporation and the Corporation assumed substantially all
of the liabilities. The Corporation continued the operations at the same loca-
tion as the Company and with the same employees. The Corporation used the
same trade name "Sportleigh," sold, to substantially the same customers, and
bought from substantially the same suppliers. It is clear that the Corporation
is a successor to the Company, and that there was no change in the employer-
employee relationship 38
The supplement to the amended complaint further alleged that the Corpora-
tion, by the acts alleged in the amended complaint, had engaged in unfair labor
practices. It is evident, however, both from the complaint and the record that
all of the unfair labor practices occurred before December 1, 1945, the date the
Corporation took over the business. Accordingly, except for the possibility of
a finding that the Corporation engaged in unfair labor practices by a continuing
refusal to reinstate, it might be argued that no finding of unfair labor practice
could possibly be made against the Corporation. But this is at most an academic
question ; for it is evident that here the Corporation is a mere continuation of
the Company. In the Adel Clay Co. case so the issue was one of the successorship
of a corporation by a partnership. The Court said at p. 346:
We need go no further than to say that the partnership, having taken over
the plant, the business and the assets of the corporation, with the same man-
agement and the same employees, and having failed to show that any change
of policy relative to labor relations had taken place, is not entitled as a
matter of law, to be relieved from the remedial measures which the Board
deemed necessary to remove the effects of the unfair labor practices found
to exist and to prevent a recurrence. After all, whether the Straight family
conducted their brick and tile business as a corporation or as a partnership
N. L. R. B. v. Adel Clay Products Company, et al., 134 P. (2d) 342 (C. C. A. 8).
A'. L. It. B. Y. Kiddie Kotler Mfg. Co., 105 F. (2d) 179 (C. C. A 6). N. L. R. B. v. Blair
Quarries, Inc,., 152 F. (2d) 25 (C. C. A. 4).
V See footnote 38, supra.
FRED P . WEISSMAN COMPANY 1027
is not, we think, a matter of controlling significance from the standpoint
of the public interest A0
Thus, since whatever remedy may be considered necessary by the findings
herein made should run against the Corporation as the successor and continua-
tion of the Company, it is unnecessary to discuss the legal theories which might
support a finding of unfair labor practices on the part of the Corporation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company found to be unfair labor practices in Section III,
above, occurring in connection with the operations of the Company and the
Corporation described in Section I, above, have a close, intimate, and substantial
relation to trade, traflc, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. TIIE REMEDY
At the close of the hearing, counsel for the Company requested that, if any
unfair labor practices were found, any cease and desist order to be issued should
be limited to the unfair labor practices found.41 Upon the basis of the findings
made herein, it is evident that this request must be denied. Here there is no
mere technical or minor violation of the Act. On the contrary, the conduct of
Weissman and his officials fall into a definite pattern designed to defeat self-
organization. The statements and actions of Weissman and his officials evince
a clear attitude of opposition to the Union and the purpose of the Act, and a
determination generally to interfere with the rights guaranteed in Section 7.
Because of the unlawful conduct of the Company and since there appears to be
an underlying attitude of opposition on the part of Weissman to the purpose of
the Act, the undersigned finds that the danger of the commission of unfair labor
practices generally is to be anticipated from the Company's and Weissman's
conduct in the past. The undersigned will accordingly recommend that the
respondent Weissman cease and desist from in any manner infringing upon the
rights guaranteed in Section 7 of the Act.'
The undersigned has found that the Company discriminated in regard to the
hire and tenure of employment of Edna Teater, Gladys Drury, Margie Springate,
Floyd Shirley and Ethel Sallee, thereby discouraging membership in the Union.
It will accordingly be recommended that the Company offer these employees
immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and privileges,
and that the Company make whole these employees for any loss of pay they
may have suffered by reason of the discrimination against them by payment
to each of the employees of a sum of money equal to that which he or she
normally would have earned as wages from the date of his or her discriminatory
40 Compare the language of the Court in N. L. R . B. v. Kiddie Kover Mfg . Co., 105 F. (2d)
179 (C. C. A. 6), where the Court said at p. 183:
It is the employing industry that is sought to be regulated and brought within the
corrective and remedial provisions of the Act in the interest of industrial peace....
It needs no demonstration that the strife which is sought to be averted is no less an
object of legislative solicitude when contract , death or operation of law brings about
change of ownership in the employing agency.
4 1 Counsel expressly stated that he wished the record to show that his request constituted
a timely raising of the question within the doctrine of N. L . R. B. v. Cheney California Lum-
ber Co ., 154 F . (2d) 112 (C. C. A. 9).
42 See N . L. R. B. v. D,rpress Publishing Company, 312 U. S. 426 ; May Department Stores
Company v . N. L. X. B., 226 U- S. 376.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge, to the date of the offer of reinstatement, less his or her net earnings.`
during that period."
For the reasons stated above in the section on the successor corporation, the
undersigned will recommend that this order also run against the Corporation.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Ladies Garment Workers Union, affiliated with American
Federation of Labor, is a labor organization within the meaning of the Act.
2. By interfering with, restraining and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Company has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
3. By discriminating in regard to the hire and tenure of employment of
Edna Teater, Gladys Drury, Margie Springate, Floyd Shirley and Ethel Sallee,
thereby discouraging membership in the Union, the Company has engaged in
and is engaging in unfair labor practices within the meaning of Section S (3)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Corporation is the successor to the Company, and as such responsible
for the Company's unfair labor practices.
6. The Board of Trade is not an employer within the meaning of Section 2
(2) of the Act, and has not engaged in unfair labor practices within the mean-
ing of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned hereby recommends that the respondent, Fred P. Weissman, an
individual d/b/a, Fred P. Weissman Company, and his successor, Fred P.
Weissman Company, Inc., and their agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in International Ladies Garment Workers
Union, affiliated with American Federation of Labor, or in any other labor or-
ganization of his or its employees, by discriminatorily discharging employees,
or by discriminating in any other manner iii regard to their hire or tenure of
employment or any term or condition of employment ;
(b) In any other manner interfering with, restraining, or coercing his or its
employees in the exercise of the right to self-organization, to form labor organi-
zations, to join or assist International Ladies Garment Workers Union, affiliated
with American Federation of Labor, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
43 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, which would not have been incurred but for his unlawful discharge and the conse-
quent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Com-
pany, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county,
municipal or other work-relief projects shall be considered as earnings. See Republic Steel
Corporation v. N. L. R. B., 311 U. S. 7.
44 This is without prejudice to the Company's right, in the event that this matter is not
adjusted, to apply for leave to adduce additional evidence on the issue of back pay. Counsel
for the Company attempted to go into the matter at the hearing, but upon the basis of the
Trial Examiner's statement that testimony on the subject was premature, did not pursue the
issue. (114-6)
FRED P. WEISSMAN COMPANY 1029
concerted activities, for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act:
(a) Instruct his or its employees that lie or it will not permit any group of
employees to exclude other employees for the purpose of discouraging member-
ship in, or activities on behalf of, International Ladies Garment Workers Union,
affiliated with American Federation of Labor, or any other labor organization,
and that physical assaults on or threats of physical violence to their fellow em-
ployees for the purpose of discouraging membership in, or activities on behalf
of, said labor organization, or any other labor organization, will not be permitted
in the plant or on plant property at any time; and take effective action to en-
force these instructions;
(b) Offer to Edna Tenter, Gladys Drury, Margie Springate, Floyd Shirley
and Ethel Sallee immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their seniority or other rights
and privileges, and make said employees whole for any loss of pay they may have
suffered by reason of the discrimination against them, by payment to each of
them of a sum of money equal to that which he or she normally would have earned
as wages from the date of his or her discriminatory discharge to the (late of the
offer of reinstatement less his or her net earnings during that perio4.'S
(c) Post at his or its plant in Harrodsburg, Kentucky, copies of the notice
attached hereto, marked "Appendix A." Copies of said notice, to be furnished
by the Regional Director for the Ninth Region, shall, after being duly signed
by the respondents, be posted by him or it immediately upon receipt thereof,
and maintained by him or it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by respondents to insure that
said notices are not altered, defaced, or covered by any other material ;
(d) File with the Regional Director for the Ninth Region on or before ten
(10) days from the date of the receipt of this Intermediate Report a report in
writing setting forth in detail the manner and form in which the respondents
have complied with the foregoing recommendations.
It is further recommended that the complaint be dismissed so far as it alleges
that the Mercer Board of Trade was an employer within the meaning of Section
2 (2) of the Act, or engaged in any unfair labor practices within the meaning
of the Act.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondents notify said Regional
Director that they have complied with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondents to
take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations file with the Board,
Rochambeau Building, Washington 25, D .C., an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding ( including rulings upon all
motions or objections.) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such
statement of exceptions and/or brief, the party or counsel for the Board filing
11 See footnotes 43 and 44, supra.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same shall serve a copy thereof upon each of the other parties and shall
file a copy with the Regional Director. As further provided in said Section
33, should any party desire permission to argue orally before the Board, request
therefor must be made in writing within ten (10) days from the date of the
order transferring the case to the Board.
DAVID REIN,
Trial Examiner.
Dated April 8, 1946.
"APPENDIX A"
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist International Ladies Garment Workers Union,
affiliated with American Federation of Labor, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
WE WILL OFFER to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Edna Teater Floyd Shirley
Gladys Drury Ethel Sallee
Margie Springate
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization : We have not participated in and do not endorse the articles or
the views of the Board of Trade on labor relations. We will not permit any
group of employees to exclude other employees from the plant. Nor will we
permit any physical assault or threats of physical assault in the plant or on
plant property. If necessary disciplinary action will be taken to enforce this
rule.
FRED P. WEISSMAN COMPANY, INC.,
By Fred P. Weissman, President.
FRED P. WEISSMAN COMPANY,
By Fred P. Weissman.
Dated------------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.