Gantner & Mattern Co.

National Labor Relations Board - Board Decisions

Jun 17, 1941

32 N.L.R.B. 773 (N.L.R.B. 1941)

In the Matter of GANTNER & MATTERN CO., A CORPORATION, and KNIT-
GOODS WORKERS UNION LOCAL No. 191, INTERNATIONAL LADIES' GAR-
MENT,WORKERS UNION
In the Matter of GANTNER & MATTERN CO., A CORPORATION, and Bu LD-
ING SERVICE EMPLOYEES UNION, LOCAL No. 87 OF SAN FRANCISCO,
A. F. OF L.
Cases Nos. C-1782 and C-1783.-Decided fume 17, 1911
Jurisdiction : knitted goods manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements; threatened cessa-
tion of operations.
Discrimination: charges of, dismissed.
Remedial Orders : employer ordered to cease and desist unfair, labor practices.
Practice and Procedure
Previous unfair labor practices held not to have been settled by the posting
of a notice pursuant to an agreement approved by an agent of the Board,
where the employer has subsequently violated the Act.
Mr. Jonathan H. Rowell, for the Board.
Mr. Milton Marks and Mr. Morris Lowenthal, of San Francisco,
Calif., for the respondent.
Mr. Elias Lieberman,*of New York City, for Local 191.
Mr. Francis McCarty, of San Francisco, Calif., for Local 87.
Miss Grace McEldowney, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Building Service
Employees Union,*Local No. 87, of San Francisco, A. F. of L., herein
called Local 87, the National Labor Relations Board, herein called the
Board, by the Acting Regional Director for the Twentieth Region
(San Francisco, California), issued its complaint in Case No. C-1783,
dated August 31, 1940, against Gantner & Mattern Co., San Francisco,
California, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1) and (3) and Section
32 N L R B., No 135.
773
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 (6) and (7) of the National Labor Relations Act, herein called the
Act.
Upon charges and amended charges duly filed by Knitgoods Work-
ers Union, Local No. 191, International Ladies' Garment Workers
Union, A. F. of L., herein called Local 191, the Board, by the Acting
Regional Director for the Twentieth Region, issued its complaint in
Case No. C-1782, dated August 31, 1940, and by the Regional Director,
its amended complaint dated September 5, 1940, against the respond-
ent, alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the Act.
By order of the Board, dated May 24, 1940, the two cases were con-
solidated for the purpose of hearing. Copies of the complaints, ac-
companied by notices of consolidated hearing thereon, were duly
served upon the respondent, Local 87, and Local 191.
The complaint in Case No. C-1783 alleges, in substance, that on
October 10, 1939, the respondent discharged, and since that date has
refused to reinstate Andrew Holm because of his membership in and
activity on behalf of Local 87. The complaint further alleges : (1)
that in January 1940 the respondent directed the attention of em-
ployees to newspaper articles which it had posted and which imputed
misconduct to officers of Local 87; (2) that at about the -same time the
respondent made derogatory remarks to its employees concerning
Local 87 and labor organizations in general and further suggested that
their interests would be better protected if they did not join or assist
any labor organization.
The complaint in Case No. C-1782, as amended during the hearing,'
alleges : (1) that on January 5, 1940, Local 191, as representative of the
regular production employees of the respondent, informed the re-
spondent that the said employees desired reinstatement following a
strike current from October 16, 1939, to January 5, 1940; (2) that the
respondent has at all times since January 5 refused to reemploy 20
named employees,2 and with respect to 5 named employees ,3 refused to
3 During the hearing the Trial Examiner granted a motion by counsel for the Board to
dismiss the allegations in the complaint with respect to William Wehrly.
2 The following are named as employees refused employment at all times since
January 5:
Catalina Sanchez Mary Creigh Mary Barillas
Margaret Sanchez Elizabeth Hockersmith Mary Zerrila
Margaret Beck Amada Ripley Irene Carrizales
Angela Maxemin Conception Vidal Alice Zehnder
Marie Fernandez Rosa Mota Emma Turner
Victoria Diaz Chona Menjivar Julia McQueeney
Laura Coleman Nina Scarborough
s The following are named as employees refused employment from January 5 until the
date noted opposite the name of each :
Mary Soulis ------------- March 2, 1940 Hermine Andzan--------- March 14, 1940
Myrtle Pomeroy---------- March 18, 1940 Eileen Forbes ------------ March 19, 1940
Elsie Maggiora---------- March 5, 1940
GAN'TNER & MA URN CO., 775
reemploy them after January 5 until specified dates; and that such
refusals were because of the employees' membership -in and activity
on behalf of Local 191; and (3) that between January 5 and March
28, 1940, the ,respondent hired seasonal employees, as to whose union
membership it 'had no knowledge, to take the places of regular em-
ployees because of the latter employees' membership in Local 191.
The complaint, further alleges that the respondent attempted to in-
fluence its employees not to assist or to remain members of Local 191,
by engaging in the. following specific conduct : (1) calling a meeting
of its employees on October 11, 1939, and making to them derogatory
remarks concerning Local 191; (2) making to certain production em-
ployees, on January 8, 1940, derogatory statements as to the responsi-
bility of officers and agents of Locals 191 and 87; and (3) directing
the attention of employees to newspaper articles which it had posted
and which imputed misconduct to officers of Local 87, and suggesting
that their interests would be better protected if they did not join
or assist any labor organization., The complaint finally alleges that
because of the respondent's unfair labor practices the production
employees went on,strike on or about March 28,,1940, and that the
labor dispute is still current. On October 8, 1940, the respondent filed
its answers to both complaints, denying that it had engaged in the
alleged unfair labor practices.
Pursuant to notice, a hearing was held in San Francisco, California,
from October 8 to 31, 1940, inclusive, before C. W. Whittemore, the
Trial Examiner duly designated by the Chief Trial Examiner. The
Board and the respondent were represented by counsel and. partici-
pated in the hearing. 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 conclusion of the hearing the
Trial Examiner granted a motion of counsel for the Board to amend
the complaint generally with' respect toI typographical errors and
minor' variation`s'as'to dates. During the hearing the Trial Examiner
ruled on a number of other motions and on objections to the admission
of evidence. The Board has reviewed all' the • rulings of the Trial
Examiner and finds that no, prejudicial errors were committed. The
rulings are hereby affirmed. Subsequent to the hearing briefs were
submitted by counsel for the respondent and counsel for, the Board.
The Trial Examiner thereafter filed his Intermediate, Report, dated
January 6, 1941, 'copies of which were duly served upon the parties.
He found that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of Sec-
tion 8, (1) and' Section 2 (6) and (7) of the Act, and recommended
that the respondent cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act. The Trial
Examiner further found that the respondent had not engaged in
776 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
unfair labor practices within the meaning of Section 8 (3) of the Act,
and recommended that the complaints be dismissed in so far-as
allegations of such practices were concerned. • ' >
On, February 15, 1941, Local 87 and Local 191 filed exceptions to
the' Intermediate Report and 'briefs in support of their exceptions.
The Board has considered the exceptions and the briefs, and except
in so far as the exceptions are consistent with the findings, conclusions,
and order set forth below, finds'them to be without merit.
Upon the entire record in the case,'•the Board makes' the following :
FINDINGS OF FACT,
I. THE BUSINESS OF THE RESPONDENT
The respondent is a California corporation with its principal office
and place of business in San Francisco', California. It is engaged in
the manufacture, purchase, sale , and distribution of knitted goods.
During the calendar year of 1939' the respondent purchased raw
materials, including yarn, fabrics, trimmings, and accessories, valued
at approximately $370,000, of which about 70 per cent were obtained
outside the State of California. During the same year total sales
of finished goods were valued at $1,687,313.05. More than 60 per cent
of the goods sold were delivered outside the State of California. The
respondent concedes that it is engaged"in interstate commerce.
H. THE ORGANIZATIONS INVOLVED
Building Service Employees Union, Local No. 87 of San Francisco,
is a labor organization affiliated, with the American Federation of
Labor. It admits to membership janitors and watchmen employed
by the respondent.
Knitgoods Workers Union, Local, No: 191, International Ladies'
Garment Workers Union, is a labor organization affiliated with the
American Federation of Labor., It admits to membership production
employees of the: respondent.,
III. THE UNFAIR LABOR PRACTICES
A. Background; interference, restraint, and coercion
In July 1937 the respondent, and Local 191 entered into a 2-year
agreement covering the respondent's production employees, which
provided, among other things, that :
t (1) All persons employed for a specific period of time -prior
to June 1, 1937, were to be listed' and, for the purposes of the
I
GANPNER -& IMATTERN 'CO.' 777
agreement, considered as "regular" employees. These persons
were-to be given preference 1ri regular employment and were
obliged to be or become members,of the union,. '
(2) The company would''bei permitted to elploy additional
workers-.during a specified seasonal- period. Such "seasonal"
employees were not required to become union members unless
they, became regular employees by .working a specified length of
time during the season and remaining in employment for one
month thereafter. '
(3) Available work was to be divided among regular employees.
.the employer being permitted to consider, seniority, merit, and
ability. •
(4) The contractual provisions were to cover persons in the
manufacturing, stock, and shipping departments.
In accordance with the agreement; the respondent furnished Local
191 with a list of 236•regular employees, of 1a' total pay roll on June 30
approximating 338. Thereafter other employees, by terms of the
contract or be ause"of error in compiling the original list, were added
to the numbem of regular workers.4 On June 10, 1939, the respondent
gave formal notice of its desire to, terminate the .existing agreement,
but offered to arrange conferences for ''any modifications of the present
contract which may be desired." Due to the absence of Local 191's
manager, actual negotiations, were not begun until September 12.
Numerous conferences were thereafter held. On October 9 the re-
spondent submitted a proposed agreement containing substantially
the same provisions as in the previous contract,with respect to regular
workers and the incumbency upon them to be or become union mem-
bers. In its letter transmitting this tentative contract, the, respondent
pointed out that the 1937 contract had expired on August 21, 1939,
that negotiations had extended "for a, considerable period of time,"
and that its proposals would be withdrawn unless accepted by October
11. This letter followed, within a day or two, a negotiation meeting
at which Local 191 representatives' had rejected the proposals and had
informed the respondent that they would not recommend acceptance
to the employees. On October 11, John O. Gantner, Sr., the re-
spondent's. president, read a prepared statement to all employees
assembled by the respondent, in which he outlined the respondent's
point of view as to the state of the negotiations. Among other things
he said:
'At the hearing Jennie Mityas, manager of Local 191, named three such , individuals,
Mary Soulis , Eileen Forbes , and Alice Zehnder, all of whose names appear in the com-
plaint in Case No. C-1782. The ' names of the other employees therein alleged to have
been discriminated against appear on the original list
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is time for you as responsible, employees to choose your path by
getting in and working with, instead of against the firm. You
have known me long enough to know that I mean what I say.
Therefore, please get this carefully , ,
If the Union chooses to' call you out, or holds the matter up in the
air, and you permit it to do so, we must consider it as a request from
you to close our plant, and we are prepared to remain s closed
indefinitely.
The foregoing statement appealed to the employees individually over
the head' of Local. 191, to renounce the union's leadership of their con-
certed activities. It constituted a thinly veiled threat of unemployment
as the penalty for adhering to the union. We find, as did the Trial
Examiner; that by making the statement the respondent interfered-
with, restrained, and coerced' its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Two days later Local 191 filed charges with the' Board, alleging vio-
lation of Section 8 (1) of the Act by discouraging membership in the
union. Following a conference at the Regional Office on October 18,
the respondent posted in its plant a notice, the text of which was pro-
posed and approved by the Regional Director. This notice contained
the terms:of Section 7 and Section 8 -(1) and - (5) of the Act, and also
the following paragraph :
The company recognizes and understands that its production em-
ployees have formed and joined a labor union, the International
Ladies Garment Workers Union #191, and have designated and
authorized said union and the representatives thereof to represent
and act for the company's employees in negotiating and dealing
with the company with regard to wages, hours and working,con-
ditions. The company hereby states that it recognizes said union
as the authorized representative of its production employees in
such matters.
In a letter dated November 17,.which accompanied the proposed notice,
the Regional Director said :
We believe that this case can be disposed of if the company will
post this notice in a conspicuous place in its plant for a period 'of
sixty days.
The notice remained posted, according to the testimony of John O.
Gantner, Jr., the respondent's treasurer and assistant to the president,
for "a month or more" after the time required. Nevertheless the charges
brought by Local 191 on October 13 were not withdrawn, according to
testimony of its manager.
GANTNLR & MATTPRN CO. 779
Although we normally give effect to agreements purporting to settle
unfair labor practices where Board agents have participated in such
agreements, we have refused to do so in cases where the employer has
continued to engage in unfair labor practices.° It is therefore neces-
sary for us to consider the subsequent conduct of the respondent in
order to determine the effect to 'be given to the posting of the above
notice.°
Beginning on October 16, 1939, members of Local 191 observed a
picket line maintained by Local 87,' and negotiations looking toward
a new contract were not resumed until March 1940. After the picket
line was withdrawn on January 4, 1940, some members of Local 191
were recalled to work. Josephine Flavio, an employee recalled on
January 8, testified that on that date Gantner, Jr., asked her if she
knew why the picket line had been removed; inquired if her union was
a religion to her; told her that Miss Matyas (manager of Local 191)
"had had trouble in Chinatown with the Chinese workers and that
they didn't care to have her there ally more"; and advised her to read
a newspaper clipping posted in the plant. Gantner, Jr., admitted
asking about the picket line, but denied referring to her union member-
ship or to Matyas. Under the circumstances, we accept Flavio's recol-
lection of the conversation as substantially accurate, as did the Trial
Examiner. As advised by Gantner, Jr., Flavio glanced at the clipping
posted on the third floor. Later the same day, a copy of the clipping
was posted on another floor by Pfister, an employee in the office of
A. W. Rushforth, the respondent's production manager. Portions of
the latter clipping were underlined in red. Also in red was penciled
a comment which ended, according to Flavio, "Two and a half months'
pay out the window." At the hearing Gantner, Jr., produced' a copy
of the newspaper containing the item. Counsel for the- respondent
stated : "it was apparently posted for quite awhile." The newspaper,
dated January 5, 1940, was the "American Labor Citizen," official
1Matter of Chambers Corporation and Allied Stove Mounters and Stove Processors
International Union, Local No. 36 (A F. of L ), 121 N L R B 808; Matter of Hawk
and Buck Company, Inc. and United Garment Workers of America,,Local No. 229, 25
N. L R B. 837. See also Matter of Corn Produdts Refining Company and United Cannery,
Agricultural Packing and Allied Workers of America, Local 169, 22 N L. R B 824, and
the cases cited therein
e Although the notice contained no express provision that the respondent would not
thereafter interfere with or coerce its employees, in the exercise of the rights guaranteed
by the Act, such a provision must necessarily be implied from the language of the notice,
the nature of the pending charges, and the Regional Director 's statement quoted above.
4 The picket line was established in protest against the discharge of Andrew P. Holm, a
janitor, and an alleged refusal by the respondent to bargain with Local 87. See Section
III B, infra
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
western publication of the American Federation of Labor, and the
article in question was headed :
HARDY REGIME ACCUSED
BY BSE INTERNATIONAL
Legal Action to Follow
Sensational Charges
Against Local 87 Group
Racketeering Methods To Be
Completely Aired by AFL
Gantner, Jr., gave no explanation at the hearing as to the purpose of
posting the article. It is clear, however, from the comment added
in pencil, "Two and a half months' pay out the window," that the
respondent intended that the article should come particularly to the
attention of employees who had observed the picket line. We find, as
did the Trial Examiner, that by the posting of this article, as well as
by Gantner, Jr.'s disparaging remarks concerning Matyas, leader of
the local which had observed the janitors' picket line, the respondent
interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.'
In view of these violations of the Act, we cannot consider the pre-
vious unfair labor practices as having been settled by the posting of
the notice.9
B. Alleged discrimination ih regard to hire and tenure of employment
1. The discharge of Holm
On June 16, 1939, the respondent hired Andrew P. Holm as a
janitor. On October 3, 1939, Holm applied for membership in Local
87. He was discharged on October 10, 1939.
The complaint in Case No. C-1783 alleges and the answer denies
that Holm was discharged because of his union membership and
activity, while the respondent affirmatively contends that the decision
to remove the jknitor from its pay roll was based upon two interrelated
factors : (1) Holm's repeated disputes with the managment concerning
his pay; and (2) the low ebb of business in early October which pre-
sented an economic opportunity to dispense with the services of the
dissatisfied employee.
Holm's testimony as to two conversations with a management offi-
cial provides foundation which, 'standing alone, might support kn
inference that he was discharged because he had applied for union
8 Similar allegations as to this incident appear in both complaints.
See footnote 5, sup,a
Ii
GANTNER & MATTERN CO. 781
membership. As to the first instance, Holm testified on cross-exam-
ination as follows concerning an interview with W. J. Bolen, in
charge of personnel, at the time he applied for a position in May 1939:
Q. And can't you remember a thing that was said during that
thirty minutes between either of you, by either of you?
A. I can't.
Q. Not a word?
A. No.
* * *
Q. At that conversation was there any mention at all by either
of you of unions or unionism?
A. Yes. I think he did mention about the union.
*
Q. At that time you didn't belong to the union, did you?
A. No.
Q. Relate that conversation in May.
A. Well, now, he might have asked me if I belonged to the
union.
Q. I want you to tell us what he said.
A. All right. "Do you belong to the union?"
* * *
Q. I thought you told us a moment ago that you couldn't think
of a single word that was said during that meeting you had with
Mr. Bolen in the month of May? -
A. Well, after you get reminded you might think of something.
No reference to an inquiry of this nature was made by the witness
while on direct examination. As to the second instance, Holm testi-
fied that on October 7, after he had made a wage complaint to another
official, he was called to the office where Bolen told him "two things" :
(1) that because of his satisfactory work his wages were to be raised;
and (2) that "the union is something the company will not tolerate."
Holm further testified that he thereupon informed Bolen of his union
affiliation and that the personnel manager replied, "Well, that changes
things." Bolen specifically denied both the question and the statement
concerning union membership attributed to him by Holm.
The respondent adduced evidence that from the receipt of his first
check in June until October, Holm repeatedly expressed belief that
he was not being paid in accordance with his understanding of ar-
rangements made when his employment application was accepted.
Bolen, Rushforth, and former pay-roll clerk, A. L. Frick testified that
within this period Holm had complained to them and that they had
tried to explain to him the method of calculating his pay. Bolen tes-
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tified that on October 7, after Holm had protested to Rushforth, he
called the janitor to the office and again explained how his pay was
computed. He further testified that when Holm insisted that the com-
pany owed him for overtime wages, he agreed to submit the claim to
Gantner, Jr. Bolen and Gantner, Jr., testified that the latter issued
instructions that, because work was slack and would not warrant a
wage increase, Holm should be let go. Bolen was also instructed by
Gantner, Jr., to pay Holm the disputed amount for past overtime and
to obtain a rceipt for it. Gantner, Jr., further testified :
... - I felt here in this man, after it had been so clearly under-
stood as to what his rate would be, purposely or evasively he tried
to indicate that he didn't understand that that was his rate, and
I felt that that man didn't want the consideration we had given
him in the past and I felt he would never be happy there. . . I
felt this was a very good time to let him off and dismiss him
permanently, because we could get along very easily without him.
Documentary evidence was presented by the respondent which shows,
that at the time of Holm's employment in June, plant production as
expressed in terms of man hours was at its peak, and that when he was
discharged production was far below any, point reached since Janu-
ary 1939. Further evidence that a wage dispute existed at the time
of the janitor's discharge appears in the uncontradicted testimony of
Hamilton Murray, who worked with Holm in November 1939. Mur-
ray testified :
He [Holm] said he had a fight over his pay and they dismissed
him, I believe, something like that; words to that effect.
In view of Bolen's denial that he questioned Holm about union men i-
bership at the time of Holm's application for employment, and the con-
tradictory nature of Holm's testimony regarding the conversation, we
agree with the Trial Examiner that credence cannot be given to
Holm's statement. As to his account of his interview with Bolen on
October 7, although it is not incredible that an employer might, offer
a disaffected employee an increase in pay, together with a warning
about union membership, in order to forestall the organization of his
employees by an unwanted union, we find no substantial evidence in the
record before us to warrant a conclusion that prior to October 10 the
respondent either knew of or objected to attempts on the part of Local
87 to secure recognition as the representative of the respondent's jani-
tors and watchmen. Under the circumstances, it seems unlikely, there-
fore, that Bolen would give Holm an increase in pay which Holm had
not specifically requested, and would then gratuitously and without
provocation, announce that "the union is something the Company will
not tolerate." The fact that the respondent was then negotiating the
' GANTNER & MAPTERN CO. 783
renewal of a contract with a union representing its production workers
makes such an expression appear still more improbable. We find
Holm's uncorroborated testimony regarding his conversation with
Bolen insufficient to support a conclusion that the respondent knew,
prior to Holm's discharge, that he had applied for membership in
Local 87.
On the other hand, the record contains convincing evidence that the
respondent and Holm were engaged in a wage dispute in October
1939, and that production was then at a low ebb. Whether or not the
respondent's solution of the problem was justified is an issue which
requires no discussion. Here, in the absence of a finding that the
respondent knew, or had reason to believe, that Holm held or had
applied for union membership, it cannot be found that discrimination
in terms of the Act occurred.
We find that the evidence does not support the allegations in the
complaint that Holm was discharged or refused reinstatement because
of his membership in or activity on behalf of Local 87.
2. Failure to reemploy certain regular employees following their ob-
servance` of the picket line of Local 87
On October 16, 1939, Local 87 established a picket line at the re-
spondent's plant; in protest against the discharge of Holm and an
alleged refusal by the respondent to bargain. It is unnecessary here
to determine the merits of the strike since neither complaint alleges
that it was caused or prolonged by the respondent's unfair labor
practices.
Members of Local 191 observed the picket line and remained away
from the plant until the pickets were withdrawn early in January
1940. On January 5, Local 191 advised the respondent, by letter, that
its members were "ready to report to work," and requested an imme-
diate conference to discuss a schedule for their return. On January
8, Gantner, Jr., replied by letter, stating that employees would be
notified as need for their services warranted sending for them.
On January 11, Local 191 again requested a conference with the
respondent to consider a schedule of reemployment. At a meeting on
January 15 with George Wishnak, international representative of the
International Ladies' Garment Workers Union, Gantner, Jr., informed
him that :
... the firm had been making and would continue to make
every possible effort to restore to employment as many of the
employees as the business would warrant, but that it was abso-
lutely impossible to arrange any fixed schedule for such employ-
ment inasmuch as the extent of future business could not be pre-
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dicted with any accuracy .:. no new employees had been hired
since the picket line ceased and . . . the firm had no intention of
hiring new employees which would have the effect of depriving
members of your Union, who had gone out because of the picket
line, the opportunity of reemployment 10
From January 17 until February 7 a series of letters was exchanged
between the respondent and Local 191 relative to the latter's claim
that its request for a meeting or for arbitration on the matter of re-
employment had been ignored. On February VLocal 191 wrote to
the respondent, charging it with having hired a seasonal and non-
union individual in preference to recalling a regular and union em-
ployee, and again requesting a meeting. No reply to this letter was
received. On February 15 Local 191 advised Gantner, Jr., in writing,
that it desired to meet with him for the purpose of negotiating an
agreement. No reply to this letter was immediately received and
Local 191 submitted its dispute to Commissioner of Conciliation White
of the Department of Labor. Beginning on or about March 4 a num-
ber of meetings were held, attended by representatives of the respond-
ent and of Local 191, during which the latter sought reemployment
of its members and the former offered certain proposals in this respect.
No mutually satisfactory solution of the dispute was reached. Ac-
cording to the testimony of the manager of Local 191:
... the company refused our demands on that [reemployment
of regular workers] and insisted on giving preference of employ-
ment to seasonal employees and to people hired during the jani-
tors' difficulty.
Pursuant to mutual agreement during the negotiations a few sea-
sonal workers, recalled during the first week of March, were dismissed
by the respondent. On March 20, at the request of Local 191's mana-
ger, the respondent submitted the text of a proposed contract and
a supplemental return-to-work agreement. The proposals with re-
spect to recognition of Local 191 as the sole bargaining representative
were similar to the proposals of October 1939 and to the provisions of
the original contract. The proposals also contained similar definitions
of regular and seasonal employees, except that persons employed be-
tween October 16, 1939, and March 2, 1940, were also to be considered
regular employees. All regular employees were to be required to be
union members with the exception of new employees hired between
October 16, 1939, and January 5, 1940.11 On the other hand, it was
1D The quotation is from a letter sent to Local 191 on January 20 by Gantner, Jr.
Wishnak was not called to testify and the record contains no evidence which refutes
or discredits Gantner's account of this meeting as related in the letter.
n Although the record indicates that the respondent hired some employees during the
course of the strike , it was not contended that the respondent engaged in discrimination
by retaining such newly hired employees after the strike ended.
GANThER & MAT ERN Co. 785
proposed by the respondent that Local 191 should agree to admit to
membership, upon application and without discrimination or penalty,
all persons hired subsequent to October 16. No agreement was reached
as to terms of a new contract, and on March 28 Local 191 called a strike,
for the following reasons, according to its manager : '
The company's refusal to re-employ its regular employees, and the
company's insistence to give preference of employment to non-
union members, and the company's refusal to bring its work back
to the plant.
The strike was still current at the time of the hearing.
3. Employment of former seasonal employees in place of regular
employees
As recited more fully above, the complaint alleges that 20 named
individuals were at 'all times refused reemployment after January 5,
and that 5 named individuals were denied reemployment until the
dates appearing opposite their names,12 and that such refusals were
because the employees were members and active in behalf of Local 191.
The complaint further alleges, in effect, that in place of these named
employees, the respondent hired seasonal workers of whose union
membership, according to the complaint, "the respondent had no
knowledge." During the hearing, and after examination of the re-
spondent's records, counsel for the Board specifically named 19 indi-
viduals whom he claimed to have been seasonal employees hired be-
tween January 5 and March 28. 1
Thus the issue presented for determination by the complaint and by
contentions of counsel for the Board during the hearing, is whether
or not the respondent discriminated against 25 union members who,
through Local 191, sought return to their jobs after removal of the
picket line, and discriminated in favor of 19 other individuals who
may or may not have been union members.
Seventeen of the employees allegedly refused reemployment after
January 5 had previously been employed in the sewing department.
During the hearing counsel for the Board named six individuals,whom
he claimed to be seasonal employees hired discriminatorily in this
department between January 5 and March 28. Counsel for the Board
conceded that there was not work-for each of the 17, and, although
requested to do so by the Trial Examiner during the hearing, did not
specify which six of the unemployed regulars should have been hired.
In contrast to thA general claim of the union, the respondent presented
detailed evidence at the hearing to show why it had selected the six
seasonal sewing-department employees for recall.
12 See footnotes 2 and 3.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to execution of the 1937 contract, the company had no fixed
rule or practice for calling in former employees. There were no
classifications of "regular" or "seasonal" employees. Cards of former
workers were kept in an alphabetical file. When increased work
necessitated additional employees, "we applied our own tests of their
ability regardless of their period of employment," according to the
testimony of Rushforth. Time studies for various operations were
conducted in 1931 and 1938. Beginning in January 1939 Bolen began
making a study of individual production records. This study, based
upon daily records, continued until early August 1939, and `provided
"weighted averages" as a basis for determining whether or not a spe-
cific employee was producing at a cost higher, lower, or equal to her
hourly rate of pay. Employees were paid bonuses in 1939 calculated
upon the results of this study. Bolen testified that the findings of this
study were "used as a guide ..' . in re-employment of operators in
1940." - He further testified as to employment between January 5 and
March 28, 1940, ". . . we would first find out between ourselves what
the requirement was, what particular operation we had in mind which
we had to have additional help on. We then referred to the individual
records, as shown by the weighted average hourly rate earned, to
determine which of those operators which had been working on the
same operation in the prior year would qualify under this plan to be
brought in to work on the new work."
At the hearing, the respondent submitted records which show that
the six seasonal employees recalled in 1940 had higher productive
records than all but 1 of the 17 regulars alleged to have been dis-
criminated against. The single exception is with respect to Hermine
Andzan, a regular employee named in the complaint. Andzan was
hired, however, on March 14, 1940, the earliest date, according to un-
controverted evidence adduced by the respondent, when additional
help was needed for the work which she had performed in 1939. There
is evidence that Andzan, because of experience in years prior to 1939,
might have adapted herself to work for which two seasonal employees
were hired after January' 5 but before the date of her hiring. The
summary of her employment record reveals, however, that she had
done none of this work in 1939. The evidence as a whole does- not
establish that the respondent guided itself in the reemployment of
Andzan by a standard different from that used in recalling others
in the sewing department.
Three regular employees named, in the complaint as having been
discriminated against were knitters.13 During the hearing counsel
for the Board contended that the respondent had discriminated in
favor of one seasonal employee, Archie Allen, by hiring him on Janu-
18 Julia McQueeney , Emma Turner, and Alice zehnder.
GANTNER & MA'CTERN CO. 787
ary 18 instead of one of the regular knitters. Allen had worked
throughout 1939 until October 13 on the night shift from 4 p. in. until
midnight. He was recalled for the same work and the same shift in
1940. Counsel for the Board offered no evidence to discredit the testi-
mony of Rushforth as to the reason why Allen was recalled instead of
one of the women knitters. Rushforth testified :
Allen was alone in the building except for the presence of the
night watchmen, and had to leave for home, of course, at mid-
night. We wouldn't subject any lone woman to those conditions.
There is a further reason: the state law, I believe, does not permit
the employment of women later than 11: 00 o'clock without a
permit, and some other restrictions about night work for women.
As to the stock department, the complaint alleges that five regular
employees 14 were discriminatorily refused employment subsequent
to January 5. During the hearing counsel for the Board named 12
seasonal employees who he claimed had been discriminatorily hired.
Bolen testified as follows as to the method of selecting former stock-
department employees for recall after January 5:
I had personal knowledge from my contacts on the floor with
all employees in the stock department and I have made it a point
to talk in-conference in my office with Mr. Mein (foreman), who
also has a record of his impressions and remarks regarding the
employees on that floor, and we together decided which person
to call in for a particular job based upon the merits of the
individual.
Of the five named in the complaint, three were recalled during
March. Each of the three was warned, at the time of her reemploy-
ment, of her "poor record" in 1939. One of the three, Mary Soulis,
admitted having been warned in 1939 of errors. Another, Myrtle
Pomeroy, admitted that she had been told by her foreman in 1939
that she "was too slow." The third was not called to testify with
respect to her previous record. As to Laura Coleman, one of the two
regular employees who were not recalled in 1940, Bolen testified that
in 1939 she "became progressively inaccurate, less productive, not able
to follow instructions and to direct work, was told in 1939 of her poor
work and on one occasion (August 24, 1939) signed a written acknowl-
edgement of error." Coleman admitted responsibility for costly errors
in 1939 which occurred in work under her supervision. With respect
to Nina Scarborough, Bolen testified that her work, in 1939, had con-
sisted mainly of totalling orders by hand, charging orders, and assist
ing in writing credits. During 1939 the system of hand-recording was
changed. Scarborough was told that if she wished to continue to
14 Mary Soulis , Myrtle Pomeroy , Eileen Forbes, Laura Coleman, and Nina Scarborough.
44SB92-42-N ol. 32-31
1
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J
work she must learn to operate the typewriter and comptometer. She
did not learn to run the machines, and by 1940 all such records were
handled by machine operators. Bolen's testimony is undisputed that
between January 5 and March 28, 1940, her services as assistant in
writing credits were not required. Bolen further testified that during
1939 Scarborough had done a small amount of "order assembling,"
but when given some of this work in the fall of that year complained
that "she was not accustomed to standing on her feet as her past work
in hand charging had been a job that she could sit down to do." Scar-
borough testified, "I never complained to anybody about my feet."
She admitted, however, that "during warm days my feet was swollen,"
and under the circumstances we credit Bolen's testimony in this re-
spect, as did the Trial Examiner.
4. Summary as to alleged discrimination against regular employees
Between January 5 and March 28, 1940, the respondent recalled 5
of the 25 employees named in the complaint. It also recalled 35 regu-
lar employees who, by terms of the 1937 agreement, were required to
be union members, and 10 former employees who were not on the
1937 regular list, but who had worked during 1939 for a period of
from 5 to 12 months. By contractual provisions proposed by the
respondent itself on March 20, 1940, these 10 would have had to join
the union. These facts are relevant in determining whether or not
the respondent discriminated against former employees named in the
complaint because they were union members.
The record contains no evidence that any or all of the 25 employees
alleged to have been discriminated against had been more active union
members than the 35 regular employees who were employed after
January 5. Thus there is no basis for an inference that the respondent
refused or delayed reemployment to the 25 named in the complaint
because of their union membership in general.
No evidence appears in the record that any of the respondent's
officials specifically considered observance of the picket line as a factor
in determining which of its former employees to recall after January
5. The respondent's act in posting a newspaper article reflecting
upon officials of Local 87 may reasonably be construed as a demon-
stration that it did not approve either of the union which put up the
picket or of Local 191's observance of it. To infer from this act,
however, that such disapproval guid-.d the selection of workers to
be recalled after abandonment of the picket line would require us to
ignore affirmative evidence as to the method of selection, as well as
the fact that all six employees hired on January 8, when the article
was posted, were on the contract list.
GANTNER & MATTERN CO. 789
The record is replete with evidence substantiating the testimony
of Bolen and Rushforth that after January 5 former employees,
whether regular or seasonal , were rehired by placing upon the avail-
able job the worker best qualified as shown by his previous record.
Nor can it be found that these records were arbitrarily compiled on
or about January 5 and used as pretexts for withholding reemploy-
ment. In 1939 sewing-department employees received bonuses cal-
culated upon their productive records. Many weeks before the picket
line was established Local 191 was informed that the respondent
wanted to discuss "the problems of wage scales applicable to employees
who are sub-standard." On September 27 the respondent had pre-
pared a list of such sub-standard employees, which included 12 of the
17 sewing-department workers alleged by the complaint to have been
discriminated against.
It is true that a similar rating system was not in effect during 1939
in the stockroom. Bolen testified, however, that selection of workers
for return to this department was based upon the combined judgment
of himself and the foreman in charge as to comparative ability among
available employees. In the absence of convincing evidence to the
contrary it would be unreasonable to infer that the respondent dis-
criminated as to reemployment in one department and not in another.
Between January 5 and March 28, 18 regular stockroom workers were
rehired, whose reemployment was not contested in the complaint or
during the hearing. Of the two stockroom employees not recalled
and named in the complaint, one had been responsible for costly errors
in 1939, and the other had not fitted herself for the change in work
for which she had regularly been employed. Two of the three named
in the complaint as having been hired after seasonal workers were
employed, admitted that they had been criticized for their work in
1939. It is contended that because regular workers with poor records
were not discharged in 1939, it must follow that low ratings could not
have been the real reason for withholding or delaying reemployment
in 1940. We find no merit in this contention. In 1940 a new situation
had developed. In effect there existed a larger number of applicants
than available jobs, and circtunstances made selection necessary. Com-
parative ability reasonably would have been a factor in determining
selection. No contract existed between the respondent and Local 191
in January 1940. The respondent was not thereby required to dis-
tribute available work among regular employees. Furthermore, it
must be borne in mind that the respondent itself proposed in March
that seasonal workers hired after January 5 should be added to the
"regular" list, in the event a new agreement was reached, and become
union members.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under the circumstances, we find, as did the Trial Examiner, that
the record does not support the allegations of the complaint that
the respondent discriminated in regard to the hire and tenure of em-
ployment of the following, thereby discouraging membership in a
labor organization :
Catalina Sanchez Mary Creigll Mary Zerilla
Margaret Sanchez Elizabeth Hockersmith Irene Carrizales
Margaret Beck Amada Ripley Alice Zehnder
Angela Maxemin 15 Conception Vidal Emma Turner
Marie Fernandez Rosa Mota 18 Julia McQueeney
Victoria Diaz Chona Menjivar Myrtle Pomeroy
Mary Soulis Hermine Andzan Laura Coleman
Eileen Forbes Elsie Maggiora
Nina Scarborough Mary Barillas
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom, and to
take certain affirmative action designed to effectuate the policies of
the Act.
Having found that the respondent has not discriminated in regard
to the hire and tenure of employment of the employees named in the
complaints, we shall dismiss the complaints as to such employees.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Building Service Employees Union, Local No. 87 of San Fran-
cisco, A. F. of L., and Knitgoods Workers Union Local No. 191, Inter-
national Ladies' Garment Workers Union, are labor organizations
within the meaning of Section 2 (5) of the Act.
'b Also referred to in the record as Angela Montalvau
16 Also referred to in the record as Rosa Vi]lei ea I
GANTNE.R & IvLATTERN CO. 791
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
4. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act.
ORDER'
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Gantner & Mattern Co., San Francisco, California, and its officers,
agents, successors, and assigns, shall :
1. Cease and desist from interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Post immediately in conspicuous places throughout its plant
in San Francisco, California, and maintain for a period of at least
sixty (60) consecutive days from the date of posting, notices to its
employees stating that the respondent will not engage in the conduct
from which it is ordered to cease and desist in paragraph 1 of this
Order;
(b) Notify the Regional Director for the Twentieth Region in
writing within ten (10) days from the date of this Order-what steps
the respondent has taken to comply herewith.
AND rr Is HEREBY ORDERED that the complaints be, and they hereby
are, dismissed, in so far as they allege that the respondents have
engaged in unfair labor' practices within the meaning of Section 8
(3) of the Act.
WILLIAM M. LEISERSON , dissenting :
I would dismiss the entire complaint in this proceeding.