H. McLachlan & Co., Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1942

45 N.L.R.B. 1113 (N.L.R.B. 1942)

In the Matter of H. McLACHLAN & COMPANY, INCORPORATED, THE
MACLAN HAT COMPANY, AND EDWARD' FENTON and HAT WORKERS-
L NION, LOCAL 85, OF UNITED HATTERS, CAP AND MILLINERY WORKERS
INTERNATIONAL UNION (A. F. OF L.)
Case No. C-2197.-Decided December 811942,
Jurisdiction : hat manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: openly declared hostility toward union;
threats of loss of employment ; granting of wage increase to demonstrate the
lack of need for union representation ; promotion ' and participation in action
to oust union organizer from community ; surveillance and espionage.
Company-Dominated Union: formation:, during campaign of hostility against
"outside" organization-recognition accorded without questioning its authority
and notwithstanding pending representation proceeding concerning claim of
"outside" union-support by : donation 'of time, property, and facilities-in-
dicia : almost complete concern of organization with matters' of minor im-
portance ; eagerness to display loyalty to management and opposition to union
advocates.
Discrimination: withholding of regular employment and placing employees on a:
"day on and day off" basis because of union activity;, discharges for union
activity.
Collective Bargaining: majority established by applications 'for membership-
refusal to bargain by : embarking upon a campaign 'to compel employees to
abandon bargaining representative of their choice ; postponing conference with
union representatives and advising employees to repudiate union and settle
their grievances directly with management ; seeking to condition acceptance
of proof of union's majority and ultimate recognition upon advance commit-
ment of union to forego closed-shop; interference with consent election con-
ducted to establish majority status; according employee committee, iecog-
nition in face of union's claims.
Remedial Orders : cease and desist unfair labor practices; upon request, to bar-
gain collectively ; dominated organization, disestablished ; reinstatement and,
back pay awarded.
Unit Appropriate for Collective Bargaining : production employees at one of
respondent's plants, excluding executives, supervisors, and clerks.
Mr. Robert E. Greene, for the Board.
Mr.. Joseph B. Wolbarsht, of Boston, Mass.,, for the respondents.
Roewer & Reel, by Mr. George E. Roewer, of Boston, Mass., for
the Union.
Mr. J. Benson Saks, of counsel to the Board.
45, N. L. R. B., No. 160.
1113
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Hat Workers
Union, Local 85, of United Hatters, Cap and Millinery Workers
International Union (A. F. of L.), herein called the Union, the
National Labor Relations Board, herein called the Board, by the
,Regional Director for the First Region (Boston, Massachusetts),
issued its complaint dated January 16, 1942, against IT. McLachlan
&. Company, Incorporated, Danbury, Connecticut, The Maclan Hat
Company, East Brookfield, Massachusetts, and Edward Fenton, of
New York City, herein respectively called McLachlan, Maclan, and
Fenton, and collectively referred to as the respondents, alleging that
the respondents had engaged in and were engaging in unfair labor
practices affecting commerce , within the meaning of Section 8 (1),
(2), (3), and ( 5) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the
complaint, accompanied by notice of hearing, were duly served upon
the respondents,. the Union, and the Shop Committee, herein called
the Committee, a labor organization alleged in the complaint to be
dominated by the respondents.
The complaint alleged, in substance; that the respondents: (1)
since April 1, 1941, interfered with, restrained , and coerced their
employees in the exercise of the rights guaranteed in Section 7 of
the Act by various acts, including, (a) statements disparaging the
Union and its leaders, (b) surveillance of union meetings and union
members, using information so obtained to campaign against the
Union, and '(c) threats to close down operations and to deprive
employees of their jobs if the Union won an election conducted by
the Board among the employees, and offers to wager large sums that
the Union would lose that election; (2) on or about May 28, 1941,
refused to bargain collectively with the Union, although that or-
ganization represented a majority of the employees in an appro-
priate bargaining unit; (3) 'dominated and interfered with the
formation and administration of the Committee and contributed
support thereto; (4) between June 20 and July 7, 1941, discriminated
with respect to the work assignments of 15-named employees be-
cause of their union membership and activity ; and (5) discharged
7-named employees on dates specified, and thereafter refused to
reinstate them, because of their union membership and activity. On
H. McLACHLAN & COMPANY, INCORPORATED 1115
January 28, 1942, the respondents filed an answer in which they ad-
mitted the allegations as to their business and the relationship among
them but denied that they had committed any unfair labor practices.
Pursuant to notice, a hearing was held from February 9 to March
'6, 1942 , inclusive, at East Brookfield, Massachusetts, before Samuel
Ede,s, 'the Trial Examiner, duly, designated_by.,the,,Chief, Trial•,Exam-
iner. The Board, the respondents, and the Union were represented
by counsel and participated in the hearing? Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues-was afforded all parties. At the conclu-
sion of the • Board's case, on February 17, 1942, the Trial Examiner
denied the respondents' motion to dismiss 'the complaint, but granted
a motion of the respondents for an adjournment of the hearing until
February 25, 1942, to allow the respondents further time within ,which
to prepare their defense. During the course of the hearing following
the adjournment, the Trial Examiner granted, without objection, a
motion by counsel for the Board to dismiss the complaint insofar as
it alleged4hat, one of the seven-named employees had been discharged
in violation of the Act. At the close of the hearing, counsel for the
Board moved that the pleadings be amended to conform to the proof
with respect to such matters as spelling of names and dates. There
was no objection , and the motion was granted. At the close of the
Board's case , and again at the close of the hearing, the respondents
moved to dismiss the entire complaint. The Trial Examiner reserved
ruling on this' motion and subsequently denied it in his Intermediate
Report. Various rulings were made,by the Trial Examiner during
the course of the hearing on other motions and on objections to the
admission of evidence. The Board has reviewed all rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. At the close of the hearing; the
parties presented oral argument before the Trial Examiner. On
March 28, 1942, the respondent and the Union filed briefs with the
Trial Examiner.
Thereafter, the Trial Examiner issued his Intermediate Report
dated May 20, 1942, copies, of which were duly served on the re-
spondents, the Union, and the Committee. He found that the
respondents had engaged in unfair labor practices affecting commerce,
within the meaning of Section 8 (1), (2), (3), and (5) and Section
2 (6) and (7) of the Act, and recommended that the respondents
cease and desist therefrom and take certain affirmative 'action de-
signed to effectuate the policies of the Act, including the reinstate-
ment with back pay of six-named employees.
3 Although served with, notice of hearing, the Committee entered no appearance and
was not represented.
1116 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
On June 29,,1942, the respondents filed with the Board their excep-,
tions to the Intermediate Report together with a, supporting brief;
Pursuant to notice duly served on A he parties, a hearing was held
before the Board in Washington, D: C., on August, 2, 1942, 'for the
purpose of oral argument. The_ respondents and the Union were
represented by counsel and participated in the hearing.
The Board has considered the exceptions and brief of the respond-
ents and hereby finds the exceptions to be without merit insofar as
they are inconsistent with the findings of fact, conclusions of law,
and order set forth below.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The respondent McLachlan, a Connecticut corporation having its
principal office, plant, and place of business at Danbury, Connecticut,
is engaged in the manufacture, sale, and distribution of men's and
ladies' hats in the rough. During the 6-month period from Novem-
ber 1, 1940, to April 30, 1941, approximately $280,000 worth of raw
materials, which constituted about 44 percent of the total purchases,
was acquired by McLachlan at its Danbury plant from points outside
the State of Connecticut. In the same period it sold and shipped
approximately 96 percent of its total output of hats, valued at about
$900,000 to points outside the State of Connecticut.
The respondent Maclan, also a Connecticut corporation engaged
in the manufacture, sale, and distribution of men's and ladies' hats in
the rough, has its principal office, plant, and place of business at East
Brookfield, Massachusetts. During the 18-month period from Janu-
ary' 1, 1940, to June 30, 1941, all the principal raw materials used by
Maclan at its East Brookfield plant, valued at about $845,540.24,
were acquired by it from points-outside the Commonwealth of Massa-
chusetts. In the same period it manufactured approximately 170,906
dozen of hats, valued at about $1,408,901.61, nearly all of which it sold
and shipped to points outside the Commonwealth of Massachusetts.
This proceeding is concerned exclusively with the activities of the
respondents in connection with the East Brookfield plant.
McLachlan and Maclan are "family corporations." Both are con-
trolled by five brothers who hold identical offices in each.2 Maclan is
a wholly owned subsidiary of, and at all times since its organization
in 1936 has-been operated and. controlled by, McLachlan. McLachlan
2 Harry McLachlan is president, A. F. McLachlan, vice president ; John B. (,,Jack")
McLachlan„ treasurer ; J. Donald McLachlan, assistant treasurer ; and G. A. McLachlan,
secretary.
H. McLACHLAN & COMPANY, INCORPORATED 1117
and Maclan stipulated that, for purposes of this proceeding, they are
c ngaged in commerce within the meaning of the Act.
Fenton, an individual, has been employed by McLachlan since 1940
to advise it and Maclan in all matters pertaining to labor relations.
In the period covered by this proceeding, Fenton advised and coun-
selled McLachlan and Maclan in respect to labor relations at the East
Brookfield plant and was an authorized spokesman for them in their
dealings with the Union and the employees at that plant. All parties
stipulated that, for the purposes of this proceeding, Fenton is "aa
person acting in the interest of" McLachlan and Maclan, and we find
him to be an employer within the meaning of Section 2 (2) of the Act.
II. THE ORGANIZATIONS INVOLVED
Hat Workers Union, Local 85, of United Hatters, Cap and Milli-
nery Workers International Union is a labor organization, affiliated
with the American' Federation of Labor, admitting to membership
employees of the respondent Maclan.
The Shop Committee'is an unaffiliated labor organization, admitting
to membership employees of the respondent Maclan.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. The respondents' opposition to the initial organizational effort of
the Union
The, first effort to organize the employees at the Maclan plant, was
made in the latter part of March 1941, when John Kuliesh, an organizer
for the Union, arrived in East Brookfield. He had done hardly more
than make preliminary inquiries and apprise several of the townspeople
of his purpose to organize the employees when, the uncontradicted
testimony shows, the respondents. took action to effect defeat of this
venture. On March 31, 3 days after Kuliesh's arrival, a hundred or
more of the employees were assembled in the plant during the inter-
mission between first and second shift operations,, and were ad-
dressed by Edward Fenton in the presence of Donald McLachlan,
general manager and assistant treasurer of Maclan, David McKee,
general superintendent, and various departmental foremen. Accord-
ing to the uncontradicted testimony of seven of the employees. present,
Fenton introduced himself as a labor relations adviser and "so-called
or sometimes-called strike breaker" in the employ of the McLachlan
brothers; announced that Kuliesh was in town and asserted in sub-
stance that Kuliesh would probably approach the employees with
1118 DECISIONS, OF NATIONAL LABOR RELATIONS . BOARD
money and whiskey and would talk to them of the "millions" and the
"mansions" and the "expensive cars" owned by the McLachlan broth-
ers; and advised them that it was their duty not to listen to Kuliesh, but
to turn him out of their homes, to notify the selectmen of the town that
Kuliesh was bothering them, and to see to it that he,was thrown out
of town. According to the further uncontradicted testimony, he
warned the employees that if there was any "trouble" they could count
upon him as their opposition; that the employees did not need a union;
and that,f while some,,unions were all right and while he 'and the
McLachlan brothers had no objection to the men joining a union,
they had better resign their employment if they did join, since the
management would never countenance a union and would shut down
the plant before submitting to a closed shop. Finally, Fenton an-
nounced that a general wage increase had been, under consideration
for 2 weeks and that it was not because there was an organizer in town
that the employees were going to receive such benefits.3
An employee, Louis Marion, testified without contradiction that he
reported for work too late to hear more than some concluding remarks
by Fenton and that, when he inquired of General Superintendent
McKee as to what had occurred at the assembly of employees, McKee
alluded briefly to the fact that, the employees had been addressed by
"someone from New York" about union organization. He testified
further that McKee asserted that he, McKee, would not belong to a
union, that he had been a union member at one time, but that it was
worthless, and that unions were of no benefit to their members and
would tax them in one part of the country to finance a strike in an-
other. McKee did not testify and we, like the Trial Examiner, believe
the testimony of Marion. Lionel Miner, another employee, also testi-
fied credibly and without contradiction that when he spoke to Joseph
Varga,.a foreman at the plant having authority to hire and discharge
and charged with supervision of the men under him, about' Fenton's
announcement that the plant would shut down 'before' the" mlirr Be-
ment would agree to a closed shop, Varga replied, "He wasn't bluffing
either."
On April 1, the day following Fenton's speech, Kuliesh was in the
town diner with Joseph Pion, a former employee of Maclan who had
been solicited by Kuliesh to assist him in meeting employees interested
in organization. Kuliesh's testimony, which is undenied and is cor-
roborated by that of Pion, and which we believe, shows that the 2 men
8 Fenton also declared that another organizer of the Union, Greg Bardacke , who 'as-
sertedly, had started "trouble" at the Danbury operations of the McLachlan, had fomented
a stuke-at some plant in'Fall River, 'Massachusetts, and had, absconded with the strikers'
money, leaving an innocent woman to blame.
H. McLACHLAN & COMPANY, INCORPORATED - 1119
had the following experience at that time : A group of 6 or 7 men
entered, among them Peter Lambert, an employee, and Leo Manning,
an assistant foreman.4 Lambert and Manning approached Kuliesh
and asked whether he was the union organizer. When Kuliesh ad-
mitted that he was, Lambert announced, "We don't want you 'or your
union here ; * * * we are perfectly satisfied," and threatened
* * * "if you don't get out of town by tomorrow night, you will
get the beating of your life." Kuliesh replied that he had -a right to
engage in organizational,acthdty,.and" :that he.liad" a] Nady 'signed, up
12 men for the Union. At this point, Manning interposed, asking'for
the names of-those who had joined. Kuliesh refused to divulge their
identity and started to point out that "organization would benefit the
wage position of the employees. Manning informed him that the man-
agement had already offered the men a wage increase, and that the
employees could not expect to earn as much in East Brookfield as in
Danbury, since Maclan produced a cheaper grade of hat. Manning
thereupon asserted that the management had already lost.half of its
investment in-the Maclan plant as a result of a flood and might just
as well lose the other half if the employees "went union." Before
leaving Kuliesh, ' Lambert ; repeated' his warning; "Remember what I
told you. If you ain't out of town by tomorrow night,-you know what
you will get." Neither Lambert nor Manning testified. Although
Lambert was not a supervisory employee, we find that his conduct on
this occasion is nevertheless attributable to the respondents.' Lambert
acted in full concert with Assistant Foreman Manning, whose active
participation in the affair plainly marked it with the stamp of the
respondents' approval. Moreover, only the day before,' the respond-
ents, speaking through Fenton, had exhorted the employees to bring
about the expulsion of Kuliesh from the community. Having unmis-
takably indicated the course of action they desired the employees to
pursuei4he respondents may, not disclaim i responsibility for action
undertaken by Lambert in fulfillment of their announced wishes.'
Fearing for his personal safety as a result of the threat by Lambert,
and finding it difficult to make any headway in'meeting employees
after Fenton's speech, Kuliesh shortly abandoned his efforts, leaving
East Brookfield on April 8, 1941.7
'As assistant foreman , Manning had authority to recommend hire and discharge and
was charged with the duty of supervising the production of the men under him.
International Assn of Machinists v. N L. R B., 311 U. S 72.
See N. L R B. V . Plkland Leather Co., 114 F . ( 2d) 221, 223-224 (C. C. A . 3), cert.
den 811 U. S . 705. Cf Ford Motor Co v. N. L. R. B., 119 F ( 2d)'326 (C. C. A. 5).
7 Kuliesh 's undenied testimony shows that immediately after Fenton 's speech , Arthur
Cranston , a town constable and employee at the Maclan plant whom Kuliesh had met,
earlier and who at the time had expressed approval of the proposal to organize the plant,
told Kuliesh , in Pion's presence, that he had just heard all about Kuliesh and that he
did not want to have any trouble with Kuliesh or he would have to send him out of town
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 18 the general wage increase announced earlier by Fenton
was-put into effect . In some , departments the increase ,, amounted to
only 5 percent . Various employees in those departments , according
to, the testimony of Raymond Gagnon and Cayetano ( James) Rio,
complained to General , Superintendent McKee, advising him that the
men intended to quit if they did not receive an additional 5-percent
increase . The following day McKee announced that the request for
the additional 5 percent had been granted . In so doing McKee de-
clared his approval of the manner in which the matter had been
handled. As established by Rio's uncontradicted testimony , which we
believe, he advised the representatives of the employees , "There is no
use getting in outsiders . Why should you boys join an outside union
and give them any money when you can settle things this way your-
selves?"
At the hearing , President McLachlan stated that the increase prom-
ised .by Fenton was granted in the regular course of the respondents'
operations . He testified that the spring of the year was the time when
Maclan would ordinarily grant wage increases . However, when ques-
tioned with respect to a further general increase of 10 percent instituted
in August 1941 , following a resurgence of union activity in the plant
and after the appearance of the Committee ," McLachlan testified
that "any time" would be a normal occasion for a general revision of
wages. Moreover , McLachlan could not remember any prior occa-
sion upon which Maclan had granted a general wage increase to its
employees . The evidence affirmatively shows that this , was the first
time a general wage increase had been effected at Maclan . It is thus
apparent , from the circumstances surrounding the announcement and
granting of the general wage increase and from the statement of
McKee, in connection with the further increase , that wage - adjust-
ments could and should be handled without the intervention of out-
siders, and we find , as did the Trial Examiner, that the general wage
increase of April 18 , 1941, was motivated by a desire openly to demon-
strate to the employees the lack of any need for union representation
and, thereby , to discourage membership in the Union.
2. The renewed organizational effort of the Union ; surveillance
and espionage by,the respondents
On May 9, ' 1941, Earl Booth ; another organizer , arrived in East
Brookfield in a further effort ,to unionize the employees of Maclan.
Having been apprised by Kuliesh of the reception accorded him, Booth
proceeded with greater caution. On May 12, Booth met Raymond
Gagnon and Cayetano ( James ), Rio, employees who were interested
s See infra, p. 28.
H.. McLACHLAN & COMPANY, INCORPORATED 1121
in introducing a union in the plant. Gagnon and Rio advised Booth-
that they approved of the idea of forming a union, but, pointing to the
speech made by Fenton and the threats directed to Kuliesh, expressed-
fear of losing their jobs if they associated openly with Booth or
identified themselves with a union movement. Booth suggested, there-
fore, that they meet secretly for a time. Accordingly, the first meeting
was, held at Gagnon's home,at about midnight of May 12. Further
midnight meetings were held between May 12 and 24, at a secluded
summer cottage owned by Gagnon's father. The attendance increased
at each succeeding meeting; approximately 36 employees were present
at the meeting which commenced on May 23 and continued on into the
early morning of May 24. At this meeting the employees decided to
abandon the secrecy of their movement; committees were formed to
solicit memberships openly and a public meeting of members was
scheduled for Sunday, May 25, at White's Pavilion, located on the
outskirts of East Brookfield.
The renewed effort to organize the employees soon came to' the
attention of the respondents. It is undisputed that on the day of
the scheduled meeting at White's Pavilion, Foreman Varga and
Ernest Schultz, another foreman having authority to hire and dis-
charge and to supervise the production of the employees under him,
went to the home of Le Grand Benedict, then night superintendent
of the plant,9 asked him "if he knew anything about *
what had been going on," and stated that, "There has been a lot of
agitating going on in regards to unionizing the factory." Varga and
Schultz then went to the home of Clarence Osborn, another foreman,
in order, as Varga testified, to "see if' he knew anything about the
trouble." Varga, Osborn, and George Galloway, another of the
foremen who had been present in Osborn's home, then proceeded to
White's Pavilion, admittedly, "to see who was there." The three
foremen, according to Varga's testimony, stationed themselves in an
automobile near the roadway leading to the meeting place, which
was an open-air structure. Varga admitted that he and the other
two foremen remained in the car from 30 to 45 minutes in an effort
to identify the employees present at the meeting. He testified that
they could see various people but that they were too far away to
recognize them. However, according to the uncontradicted testimony
of some of the, employees present at the meeting, they were aware
of the presence of the three foremen in the car, and were disturbed
by that fact.
The following day, General Manager Donald' McLachlan called
President Harry McLachlan in Danbury, and, as the latter testified,
e Benedict occupied that position from November 1939 to May 1941, when he succeeded
McKee as general superintendent. In the latter position , Benedict was in charge of general
production and of the foremen and assistant foremen in the plant.
493508-43-vol. 45-71
1122 DECISIONS OF_ NATIONAL LABOR RELATIONS -BOARD
"complained" that, while he "did not have too much detail , about it,"'
there had been "considerable union activity * * * over the
week-end." Subsequently , the evidence shows, the respondents en-
gaged one of the employees at the plant , 'Bernard Cote , to spy and
report upon the activity of the Union and its members . Cote's
testimony as to the history and nature of his espionage work is as
follows : His brother , Raymond, a strawboss under Foreman Schultz,
told him sometime toward the end of May 1941 that Schultz had
suggested that there would be "something in it " for Cote if he wanted
to work "on the company's side." Cote, who had joined the Union.
a few days earlier , considered the matter , and shortly thereafter told
Raymond that he would accept the. proposal. Later that day,
Schultz instructed Cote to "go to the meetings" of the Union and.
keep his,"eyes and ears open ." - Thereafter , Schultz and Cote met
regularly both in and . away from . the plant . At these meetings,
Schultz questioned Cote as to what had been said at union meetings,
and the identity of the most active employees . In June, at Schultz's
request, he reported upon a joint meeting held in Danbury between'
members of the East ' Brookfield and Danbury locals of the Union.
Later that month, immediately prior to a consent election conducted
by the , Board, he disclosed to Schultz , in accordance with the - latter's
instructions , information he had obtained at a union meeting as to
how, the union , employees would probably Vote. , Although he con-
tinued to report upon the Union in the period that followed, Cote
became increasingly uneasy about his activity as a spy and finally,
on July 19, told Booth and representatives of the Board at its
Regional Office in Boston that he had been spying upon the Union.
While on his way to the Regional Office , he called the plant by tele-
phone and asked for Schultz. Foreman Varga took the call, ex-
plaining that Schultz was not in the plant. When Cote told Varga
that he was on his way to Boston in the company of Booth, Rio, and
another employee , to find out what they had to say about a pending.
charge against Maclan, Varga told him to go ahead , to listen to what
was said, and to report back to Schultz when he returned . There-
after, he informed General Manager Donald McLachlan that he was
afraid his activity would cause trouble for him with the "Federal
guys" and the Board and that he wanted to quit his employment.
McLachlan immediately called Fenton, who advised Cote over the
telephone that he had nothing to fear and instructed him to "go back
to work and forget it ." He continued his employment until August,
15, when he quit. The respondents paid - him a total of $95 for his
services as a spy; one payment of $25 in cash was transmitted to Cote
through his brother , Raymond, another of $30 in cash was given
him by Foreman Schultz , and a final payment of $40 was made to
him by a check dated August 12, 1941, signed by Donald McLachlan.'
.H. _MCLACHLAN & COMPANY, INCORPORATED 1123
Schultz denied that he ever asked Cote to spy upon the Union, or_
that'he ever met•with Cote to discuss union activity, or that he ever
paid Cote any sums for spying. He admitted that Cote had received
payments from the respondents in addition to his regular salary but.
explained that such additional sums were in the form of loans which
Maclan frequently made to its employees. Except for one item repre-
sented- by a petty cash voucher in the amount of $2.50, Cote denied
that he had received any loans from the management in this period.
Indeed, Cote testified that when 'he noted that sums were being de-
ducted from his weekly pay checks on account of purported loans, he,
protested vigorously, and General Manager Donald McLachlan told
him that this was being done only in order "not to cause suspicion in
the office." The respondents did not introduce any of their books to
show how the payments to Cote were carried on their records. In ad-
dition, the evidence shows that loans to employees were not extended
by check, .that rarely if ever were they advanced in such amounts, that
deductions claimed to be taken from Cote's weekly pay checks in return
for the loans failed by a large amount to equal $95, and that Cote was
given his last, pay check with a large amount of the alleged loans still
outstanding. Neither Donald McLachlan' nor Fenton testified. Con-
cerning Cote's testimony about his telephone conversation with Varga
.on the way to the Regional Office; Varga testified only that he did not
remember talking with Cote on that occasion. However, he would
not deny that he had. Under all the circumstances; we, like the Trial
Examiner, credit the testimony of Cote regarding his espionage
activities.
The undisputed testimony shows that the respondents did not limit
their surveillance and espionage to the activity of Varga, Osborn, Gal-
loway, and Cote. According to the undenied testimony of Anthony
Kowalski, a member of the East Brookfield police force at the time
of the hearing and a former employee at the Maclan plant, he was
approached, while he was working,_at the plant, by Foreman Osborn
on June 7,1941, the day of a scheduled joint meeting of the East Brook-
field and Danbury locals of the Union, and was asked to drive Osborn
and Night Superintendent Benedict to White's Pavilion, where the
employees were gathering before starting off for Danbury. Kowalski
testified further that he drove Osborn and benedict to a point near the
Pavilion, where the three left the car and went into some nearby
bushes; that from this point he spied upon the gathered employees
through a pair of field glasses which Osborn had asked him to bring
along; that he called out the names of,those he identified to Benedict,
who noted them in a little book-; and- that he and Osborn were paid
for the time so spent away from their regular duties.10 Osborn did
11 Benedict was not on duty at the time.
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not testify , but Benedict admitted that the three had observed the
gathering of the employees.
Thus it is clear that the respondents , acting through Fenton, Mc-
Kee, Varga , Manning, and Lambert , engaged in a deliberate campaign
to defeat organization for collective bargaining , marked in chief by
openly declared hostility toward the Union, statements disparaging
and maligning the integrity and good faith of the Union and its or-
ganizers , threats directed to the job security of the workers , the grant-_
ing of a wage increase to demonstrate the lack of need for union repre-
sentation , and the promotion of and participation in action to oust
the union organizer from the community . It is also clear that the re-
spondents , acting through Varga, Osborn, Galloway , Benedict, and
Kowalski , engaged in the surveillance of union meetings and activi-
ties, and, acting through Cote and Schultz , engaged in systematic
espionage designed to keep the management apprised of the activities
of the Union and its members . We find , as did the Trial Examiner,
that by such conduct and action the respondents , and each of them,
have interfered with, restrained , and coerced their employees in the
exercise of the rights guaranteed in Section 7 of the Act.
B. The refusal to bargain; further interference, restraint, and coercion
1. The appropriate unit
We find, as did the Trial Examiner, in accordance with a stipulation
of the parties, that all the employees engaged in production at the
East Brookfield plant of Maclan, excluding executives, supervisors,
and clerks, at all times material herein, constituted, and that they now
constitute, a unit appropriate for the purposes of collective bargaining
and that said unit insures to employees of the respondent the full
benefit of their rights to self -organization and to collective bargaining
and otherwise effectuates the policies of the Act.
2. The representation by the Union of a majority in the appropriate
unit
Booth testified that on May 28, 1941, when the Union requested
recognition as exclusive collective bargaining agent, it represented 115
employees, a majority of a stipulated total of 166 in the appropriate
unit. In corroboration of this testimony, 115 signed applications for
membership in the Union were introduced in evidence at the hearing.
All the applications, according to the uncontradicted testimony of
Booth and various employees, were signed on or prior to May 28. The
respondents contested this showing of majority representation on the
grounds (a) that the signatures on'5 of the applications were forgeries,
'11. - MCLACHLAN ` & 'COMPANY, INCORPORATED 1125
and (b) that the signatures on 16 of the other applications were
procured by fraud, misrepresentation, and threats.
Even if it be assumed that the signatures on the 5 disputed applica-
tions are not authentic and that the signatures on the 16 other applica-
tions were procured by fraud, misrepresentation, and threats, the status
of the Union as majority representative would nevertheless remain
unaffected. The deduction of the 21 applications from the 115 other-
wise wholly unimpeached applications introduced in evidence at the
heariiig would merely reduce the Union's representation to 94 em-
•ployees out of a total of 166 in the appropriate unit, a. clear majority.-
We find that on May 28, 1941, and at all times thereafter, the Union
was the duly designated representative of a majority of the employees
of the respondent in the appropriate unit and that, by virtue of Section
9 (a) of the Act, was on May 28, 1941, and at all tines thereafter has
been, the exclusive representative of all employees in such unit for
the purposes of collective bargaining with respect to rates of pay,
,wages,-hours, and other conditions of employment.
3. The refusal to bargain
a. Chronology of events
As indicated above, on May 25, 1941, the Union held its first open
meeting at White's Pavilion. The members of the Union present at
the meeting elected a committee to meet and enter into collective
bargaining negotiations with the respondents. Booth testified that on
the following day he and the committee, stating to General Superin-
tendent McKee that the Union represented a majority of the
respondent 'Maclan's employees, requested McKee to arrange for "an
audience" with Donald McLachlan, general manager of the East
Brookfield Plant. McKee advised the committee that Donald
McLachlan was not in and that the matter was one for President
Harry McLachlan, who was then in Danbury. McKee agreed, however,
li It is unnecessary to make a detailed analysis of the evidence in regard to the five
applications contested as forgeries. Suffice it to say that the testimony is clear that the
five employees in fact signed the contested applications.
As to the 16 cards challenged as having been obtained by fraud, misrepresentation, and
threat, there is no evidence of coercion in the `record and the "misrepresentation" was
of, a character which the Board and the courts have held not to be fatal to a union's claim.
N. L. R B. v. Wm. Tehel Bottling Co., 129 F. (2d) 250 (C. C. A. 8), enforcing Matter of
Wm. Tehel Bottling Co. and International Brotherhood of Teamsters, Chauffeurs, Stablemen
and Helpers, Local 238, A F. L., 30 N. L. R. B 440; N L. R. B. v. Dahlstrom Metallic
'Door Co., 112 F. (2d) 756, 758; Matter of Kay Metal Products and Fabricated Metal Local
1225, United Electrical, Radio & Machine Workers of America, C. I. 0, 42 N. L It. B.
432. It also is to-be noted that most of those to whom the alleged misrepresentation was
made in the solicitation of their signatures, knowingly and -,i illmgly signed, at a later date,
authorizations of the Union as their representative. Moreover, the misrepresentation,
which was alleged, in the main, to have consisted of statements that the Union had a
majority at the time the signatures were solicited, was itself not shown conclusively.
'1126 DECISIONS-OF NATIONAL LABOR'RELATIONS BOARD
to call Harry McLachlan concerning the request for recognition ,and
collective bargaining and to advise the union representatives of his
-answer. On May'28, 2 days later, McKee advised Booth and the com-
-mittee that President McLachlan had agreed to meet with the union
,representatives at 4: 30 o'clock that afternoon. It is undisputed that,
,shortly thereafter, however, President McLachlan called Booth and
asked for a postponement of the meeting until 5: 30. Booth agreed. '
At about 3: 30 o'clock on the afternoon of May 28, during the inter-
mission period between first and second shift operations, President
,McLachlan addressed the employees of both shifts. According •to, the
'testimony of'six of the employees present, McLachlan read from a
'prepared manuscript, stating that they had been having "a picnic"
during the last week but that they were going to have to "get down
to business," that he know about the Union and the fact that various
-employees had joined; that the nien ought to "forget about" the meni-
.bership applications they had signed, as the applications "didn't mean
anything"; that Booth had been "feeding" the employees a "lot of
boloney"; that the,•men could "see every day in the papers how . . .
union leaders are going to jail"; that the Union had "never done
anything for' anybody"; that in the event of a strike the Union would
offer the workers only "a five dollar bill and a can of beans," but that
the management, on the other hand, had a clause in its contracts which
would allow it to cancel operations in case of labor trouble and that
the owners could then go out of business and "live comfortably" merely
by selling raw furs; that a union "organizer had started "trouble" at
the Danbury plant, and that there had been "plenty men" that,McLach-
lan "had to discharge in Danbury," who would "never definitely work
.,again" for the respondents; that the employees did not need,
and he did not want, a union in the plant; that he could run his busi-
ness without the help of a union.; that rather than have a union in the
plant, he would shut down; and, finally, that if the men had any
grievances, the proper way to handle such matters was to place them
"before the management directly. _
President McLachlan admitted at the hearing that he knew why
Booth wished to speak with him on that day and that the scheduled
.meeting with the union representatives was postponed so that he could
address the first and second shift employees as a group. He denied,
however, that in calling the meeting, he was interested in anything
other than improving the efficiency of the employees, which, he testified,
had fallen substantially below normal with the advent of the Union.
Yet, at another point in his testimony, President McLachlan admitted
that, when he was asked to come to East Brookfield on May 26 his
brother, Donald, complained only of "union activity and signing up of
men and so forth over the week-end." President McLachlan did not
Ii. McLACHLAN & COMPANY, INCORPORATED 1127
deny that he read to the employees at the meeting from a' prepared
manuscript. He testified that he advised the employees that they
'could join or refuse to join the Union as they saw fit, but that there
was no law which compelled the respondents to accept a closed shop
,and that the respondents did not propose to do so, and that he told
them "plainly" that because of the rising raw material market the
,respondents could sell their raw materials at a handsome profit. The
manuscript from which President. McLachlan read was not produced
at the hearing; nor was any showing made that it was unavailable.
Under all the circumstances, we, like the Trial Examiner, are unable
to accept McLachlan's testimony as reflecting the entire substance of
his address. We find, as did the Trial Examiner, that McLachlan, in
the course of his address, made the statements attributed to him by
the witnesses for the Board and that the purpose of his address was
to compel the employees to abandon their union affiliation.
At the conclusion of his address, President McLachlan called out
the names of about a dozen employees, whom he asked to report to
his office. All these employees had, been, active in the organization of
,the Union and were described by McLachlan, at the hearing, as "people
who were doing a lot of agitating and not doing their work properly."
When the men had assembled in the ante-room of the office, General
Manager Donald McLachlan summoned one of their number into the
inner office. When Donald McLachlan appeared to summon the next
man inside, the waiting group advised him that they would appear
before the management collectively or not at all. Donald demurred,
but then agreed that the men could come. in as a body. Harry Mc-
Lachlan, Donald McLachlan, and Fenton were inside. Fenton and
Harry McLachlan spoke for the respondents. According to the
testimony of various of the employees present, Fenton asked the men
to state their grievances and urged them to see if they could not settle
the matter with the management directly. Rio, according to his un-
contradicted testimony, acted as informal spokesman for the group.
He testified as follows in this connection : Being unable to understand
Fenton's point entirely, he asked Fenton to talk to the men "straight
from the shoulder." Fenton replied that he was not to get so "cocky"
or he would discharge him and bring him before the Board. Rio
.explained that he merely wanted to know why he and the others had
been summoned, since there was a bargaining conference scheduled
••with_Booth and other union representatives later that afternoon, and
that the men did not desire to speak with the management unless
Booth was present. Fenton thereupon replied that Booth had nothing
to do with the matter and .would have no right to discuss wages or
'working conditions until he proved the Union's majority representa-
tion. Rio rejoined. that they would be willing to wait, but Fenton
urged that the men settle their differences without Booth. When Rio
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused the offer, Fenton dismissed the group. President McLachlan
testified that, when he spoke to the employees on this occasion, he
merely referred to their lack of cooperation in the, performance of
their work and made no reference whatever to the Union or their
association with it. The testimony of McLachlan is unconvincing. In
any event, McLachlan did not deny that Fenton addressed the em-
ployees; nor did he attempt to relate the substance of Fenton's talk.
Fenton did not testify. We find, as did the Trial Examiner, that
Fenton made the statements attributed to him by the witnesses for the
Board.
At 5:30 that evening, the respondents met with Booth and other
representatives of the Union in the plant office. Harry McLachlan,
Donald McLachlan, and Fenton were present. Harry McLachlan
.advised Booth that Fenton would speak for the management. There
is no substantial conflict in the testimony as to what occurred. As
President McLachlan testified, Booth "asked if we would accept the
United Hatters of North America as bargaining agency for our em-
ployees, due to the fact that they had a majority of our employees
signed up." According to McLachlan's further testimony : "We said,
no, the proper-way, if he [Booth] had proof of that, was to go to the
Labor Board, and an election would decide the whole issue." Booth
did not proffer the signed membership application cards; nor did the
respondents request any proof of majority representation. Fenton
declared that the respondents would in no event ever agree to a closed
shop. Booth pointed out that no specific demands were being made
upon the respondents at this time, and that the first matter to be set-
tled was whether the management would -accord the Union recog-
nition. Booth suggested that the respondents agree to a consent
election conducted under Board auspices. Fenton replied that -the
respondents would agree to a consent election only if the Union, in
turn, would agree not to request a closed shop. Booth would not so
stipulate without referring the matter to the members of the Union
and to his superiors. Nothing further was accomplished in this meet-
ing: Thereafter, however, on June 9, 1941, the respondents and the
Union reached an informal agreement to hold a consent election and
the respondents withdrew their insistence upon an advance commit-
ment by the Union that it would not request a closed-shop agreement.
On June 16, 1941, the parties entered formally into it consent election
agreement.12
12 Prior to the execution of the agreement , the respondents suspended 37 members of the
Union who attended a Joint meeting of the East Brookfield and Danbury locals of the
Union in Danbury on Saturday , June 7, 1941. The matter is not presented for decision
In this proceeding . It was adjusted between the parties prior to the execution of the
consent election agreement . The respondents reinstated the suspended . employees 3 days
prior to _ the election , and the Union and the respondents each paid the employees half of
the earnings lost by reason of,the suspensions. '' , .
H. McLACHLAN & COMPANY, INCORPORATED 1129
In the period between May 28, when the Union requested recogni-
tion, and June 19, 1941 , when the election scheduled under the terms
of the agreement was held, the respondents did not abate their ' efforts
to achieve collapse of the union movement. On May 29, a group of
employees 'arranged a meeting with the respondents . Operations
in one of the departments weie shut down an hour early in order to
accommodate the meeting , which was held in the plant office. Ac-
cording to the testimony of Robert Holihan, one of the employees
present, Gordon Terry, spokesman of the group , advised Harry and
Donald McLachlan , Fenton, and various foremen present at the meet-
ing, that they had come "to get rid" of the Union . Holihan testified
further that Harry McLachlan replied, "Well , all right, boys," and,
pointing to Fenton , stated, "here is a man I pay big money to for just
such purposes ," that Fenton then advised the group that he had
"more influence over the Labor Board" than did the Union, that he
knew "how these things worked ," and that although there would be
"a case" before the Board , it "would probably be appealed and post-
poned and dragged out until it was all forgotten ." According to
Holihan, Fenton at, this point noted that Booth, who had received
word of the meeting , was outside the plant, and Fenton announced :
"Well, here's Mr. Booth! He is going to pull you out on strike; let's
see how far he gets." With this , according to Holihan , the meeting
concluded . Harry McLachlan 's testimony regarding this meeting
was extremely vague. He testified merely that the group expressed its
loyalty to the management and requested it to advise and to help
them. He denied that he attempted to influence the men regarding'
The Union; he could not , however, recall what Fenton may have said
to the men. Fenton did not testify . In all of the circumstances dis-
-closed by the record, we, like the Trial Examiner , credit Holihan's
version of what occurred.
Shortly after this meeting , various of the employees , including
Terry, circulated a petition throughout the plant announcing the
formation of the Committee as bargaining representative of the em-
ployees. The petition read, in substance, as follows : "A general,
committee . . . has been formed to represent their departments in
dealing with the Maclan Hat Co. We the following agree to support
them and have them as our representatives ." The employees were
solicited to sign the petitions in the plant both during and after
working hours, without objection on the part of the respondents to
the use of company time and property for this purpose . Further,
the respondents immediately thereafter expressed approval of the
formation of the Committee , and, in sharp contrast with the recep-
tion accorded the Union , agreed to cooperate fully with the Com-
mittee as representative of the employees, although the issue of the
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's majority status, was still pending determination at the polls.
Our findings as to the Committee are more fully set forth herein-
after. 13
In this period just prior to the election Foreman Schultz offered
to bet the employees as much as.$100 that the plant would shut down
if the Union won the election.14 Further, according to the uncon-
tradicted testimony of Louis Hayes, one of the employees, when he
asked Schultz for an opportunity to work as a hardener, a better
position than Hayes then held, Schultz told him that "if the Union
got in," Schultz would not be able to. give him the job "when he
wanted to," but that the Union would then tell Schultz "what to
do," and "when to do it." Gagnon testified, without contradiction,
that just prior to the election Schultz told him that "McLachman
(sic) would not agree to a union in the shop; that his [McLachlan's]
lather had left a will or something stating as such that they would
close down if they had a union." As noted above, Bernard Cote tes-
tified that immediately prior to the election he disclosed to Schultz,
in accordance with the latter's instructions, information he had ob-
tained at a union meeting as to how the union employees would prob-
ably vote. Finally, Foreman Varga admitted that his car was used
to bring voters to the polls on the day of the election.
It appeared from the results of the election held June 19, 1941, that
94 employees voted against and only 63 for the Union, out of a total
of 157 employees in the appropriate unit on that date. Subsequently
on October 17, 1941, pursuant to the provisions of the consent elec-
tion agreement, the Regional Director, after an investigation, having
found that between June 16, 1941, the date on which the consent elec-
tion agreement was signed, and June 19, 1941, the date of the election,
the respondents, by their conduct, prevented the expression of a free
choice by the employees, declared the election null and void.
b. Conclusions
That the respondents at no time intended in good faith to bargain
with the Union is clearly demonstrated . When their various devices
for preventing the self-organization of the employees had failed to
deter the Union from enlisting a majority of the employees, the
respondents devised further means of evading their duty to recognize
and deal with the Union. ' Scarcely had the respondents agreed to
'3 Section C , infra.
is Booth testified that various of the employees had reported this to him , and that, when
he later confronted Schultz with these reports , Schultz admitted that they were true and
entered into such a bet with Booth . Thereafter, Bernard Cote testified Schultz asked
him whether Booth had said anything about the bet. At the hearing, Schultz denied
ever having offered any bets on the outcome of the election . Neither we , nor the Trial
Examiner, credit Schultz's testimony In this regard.
i
:H. McLACHLAN & COMPANY, INCORPORATED 1131
meet with•the Union when they embarked upon a campaign to compel
their - employees to abandon the bargaining representative of their
choice. President 'McLachlan, admittedly anticipating a formal re-
quest for recognition, postponed his conference with the union repre-
sentatives, and, at a meeting of the employees, threatened their job
security if the -Union were established at the plant and advised them
to repudiate the Union and to settle their grievances directly-with
the management. Immediately thereafter, the leaders of the Union
were called into McLachlan's private office, where Fenton and Harry
McLachlan exerted pressure upon them to "cooperate" with the re-
spondents by ignoring the Union as bargaining representative and
dealing, instead, as individuals with the respondents. Immediately
after this conference, the respondents, when faced finally with the
Union's request for recognition, sought to condition the acceptance
of proof of the Union's majority and ultimate recognition upon an
advance commitment by the Union that it would forego the closed
shop. Since the Union in fact represented a majority of the' em-
ployees and since the respondents did not question that majority,'the
respondents. unlawfully undertook to convert recognition, to which
the Union was entitled as a matter of right, into a subject for which
the Union must bargain.
The respondents thereafter receded from this position; but not..
from their purpose to destroy the Union, for they compelled the
latter to participate in an election to establish a majority claim which
had-not in fact been questioned. The consent election thus at most
must be considered as a method of proof to which the parties resorted
as a means of establishing officially the Union's majority status. De-
spite the agreement to settle the question of the Union's status by an
election, the respondents exerted every effort to render impossible
a .fair official determination of that issue. To that end President
McLachlan on the day following the Union's request for recognition
expressly approved of a movement "to get rid" of the Union, a proj-
ect repeatedly urged upon the employees by the management from
the very first appearance of union activity in East Brookfield. To
that end President McLachlan referred the anti-union group to Fen-
ton, who announced that any effort by the Union to safeguard the
rights of its members through the Board would be fruitless. To
that end the respondents dedicated freely company time and prop-
erty to insure effective circulation of the petition for the establish-'
ment of the Committee as a rival bargaining agency and immediately
"See, e . g., National Labor Relations Board V. Griswold Mfg. Co., 106 F. (2d) 713,
718-721 (C. C. A: 3 ) ; Hartsell Mills Co v. National Labor Relations Board, 111 F. (2d)
291, 292 (C C. A 4) ; McQuay-Norris Mfg . Co. v. National Labor Relations Board, 116 F.
(2d) 748, 751 (C. C. A. 7). - 1 .. I ..
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter accorded recognition to the Committee as representative
of the employees , although the claim of the Union as majority rep-
resentative was still to be authoritatively determined . This action,
in graphic contrast with the management 's insistence that the Union
prove its right to speak for the employees in what President McLach-
lan termed "the proper way," was tantamount to a rejection of the
Union and identified the Committee as the respondents ' candidate for
the employees ' favor. To that end, Foreman Schultz let it he known
that the plant would shut down if the Union were successful in the
election and elicited information from the respondents ' espionage
agent, Cote, concerning the manner in ' which union members pro-
posed to vote at the election ; and to that end, also, the car of Fore-
man Varga was employed to transport employees to the polls. Thus
the respondents flagrantly disregarded their duty to refrain from
interfering with the freedom of choice of the employees and to co-
operate in the ascertainment of the Union 's majority status. The
election was consequently not controlling in establishing the Union's
majority.
Under these circumstances , the Union was not barred from pur-
suing other avenues of proof, specifically the Board 's procedure in-
voked by a charge that the respondents have violated Section 8 (5)
of the Act.
Since the Union represented a majority of the employees on May
28, the date of the request for recognition, the respondents were
under a duty to bargain with it. Instead , the respondents engaged
throughout in a course of strategy deliberately designed to eliminate
the Union . Where the Act required the respondents to maintain
the strictest neutrality , they intruded , both before and after- the re-
quest of the Union for recognition , as an active protagonist to pre-
vent collective bargaining with the representatives of their employ-
ees. At no point , can it be said upon the record in this case, did
they entertain seriously any thought of entering into collective
bargaining relations with that organization . The rejection by the
respondents of the principle and procedure of collective bargaining
could not have been more complete . Since the respondents , by their
own unlawful conduct, rendered impossible a fair determination at
the polls of the Union 's majority claim , they cannot now rely upon
the results of the election as a defense to their refusal to bargain.
The failures of the Union to demonstrate its majority at the election
can only be attributed to the respondents' unfair labor practices 16
In all of the circumstances presented we find , as did the Trial
Examiner , that the respondents , and each of them, on May 28, 1941,
I
11 Cf. N. L. R. B. v. Bradford Dyeing Assn, 310 U. S. 318.
H. McLACHLAN & COMPANY, INCORPORATED 1133
and at all times thereafter, refused to bargain collectively with the
Union as exclusive representative of their employees in an appro-
priate unit and have thereby interfered with, restrained, and coerced
their 'employees in, the exercise of the rights -guaranteed, in Section
7 of the Act. In addition and independently thereof we find, as did
the Trial Examiner, that the respondents, and each of them, by the
conduct and activity of Harry McLachlan, Donald McLachlan, Fen-
ton, and Schultz directed toward effecting the abandonment of the
Union and its defeat at the polls in the period between May 28 and
June 19, 1941, further interfered with, restrained, and coerced their
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
C. The Committee : domination, interference, and support
As indicated previously the Union sought recognition of the re-
spondents on May 28, 1941. On that day, immediately prior to the
scheduled meeting with the Union, President Harry McLachlan gave
a prepared anti-union speech to the employees of Maclan. Follow-
ing the speech a group of union leaders were summoned to McLach-
Ian's private office, where Harry McLachlan and Fenton attempted
to persuade them to disaffirm the Union. Subsequent to this con-
ference the respondents met with the Union, refused to recognize it
and made the gratuitous remark that they would not grant a closed
shop. The next day, May 29, 1941, the Committee's organization
was stimulated at a meeting of the employees at which President
McLachlan expressed his, approval of the proposal of a group of the
workers "to get rid of" the Union. Irving Lussier and Felix
("Valley") Pocius, two employees, were, the moving figures in the
establishment of the Committee. They testified that they ap-
proached,the employees on each of the three shifts in the plant and
requested them to select one 'or more of their number to represent
each of the seven plant departments. They were clearly indifferent
to the question of whether the employees in fact desired' to be so
represented. The employees in one of the departments, known as
"feeders," did not, according to Lussier's own admission, care to be
represented but one of their number was, nevertheless, designated
to act as their committeeman. While in some departments elections
for committeemen were held on the respondents', time and property,
in others, some of the employees testified, it was not known clearly
how the,,, committeemen were selected. Thereafter a petition was
drawn up which read in full as follows:
A general committee consisting of Billy Wilbur, Harold Adams,
Howard Green, Gordon Terry, Ed. Harper, Valley Pocius, Frank
1134 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
'Latwis, Tillman Ledger, and Joe Lyons, has been formed to rep-
resent their departments in dealings with the Maclan Hat Co.
We the following agree to support them and have them as our
representatives.
According to the testimony of Lussier and Pocius, they, Terry, and
others circulated the petition openly throughout the plant on all shifts,
both during and after working hours; 164 signatures were so obtained.
The solicitation on so wide a scale could not have been unknown to the
foremen and other supervisory officials of. the respondents " who did
not, however, make any effort to-withhold the use of company time
and property for that purpose. Significantly, their only complaints
were directed against activity on behalf of the Union, which 'the evi-
dence clearly establishes was carried on to a negligible extent if at
all in the plant.
Donald McLachlan was thereafter notified by Pocius of the forma-
tion of the Committee. Although the respondents had placed the ma-
jority status of the Union in issue and the matter was then awaiting
the results of the consent election, Donald McLachlan, apparently did
not question the authority of the Committee to represent the employees.
Instead, as Pocius, chairman of the Committee, testified, Donald ap-
proved of the Committee and recognized it, declaring that "it was fine,"
and that he would "cooperate with [it] as much as possible . . ."
Pocius testified further that at the time he notified Donald of the
formation of the Committee he asked Donald for permission on behalf
of the Committee to use the first-aid room in the plant for meeting
purposes, that Donald immediately granted permission, that all the
meetings of the Committee were held in that room, and that no charge
was ever made for its use. Moreover, Pocius testified that on many
occasions such meetings' were held during working hours, that the
foremen never questioned the Committee about their absence from
work, and that no deductions were ever made from their wages for
the ,time spent at committee meetings. In addition, the management
donated the use of the plant bulletin board to the Committee., It was
a locked glass enclosure to which, as the undisputed evidence shows,
only the foremen and other officials of the respondents had access.
Notices concerning the activities of the Committee were regularly
posted on this Board. -
The Committee, as Night Superintendent Benedict testified, was
the only representative of the employees with which the respondents
17 Neither we , nor the Trial Examiner , credit the testimony of Benedict,-Varga, and
Schultz that they were unaware of the circulation of the petition in the plant . Indeed,
although Schultz denied knowing anything in reference to the formation of the Committee
until after it was established , Lussier testified, without contradiction , that only after
requesting permission from Schultz did he post a notice in the plant announcing there
would be an election for a committeeman to represent the forming department.
, H. MCLACHLAN & COMPANY, INCORPORATED 1135
had any dealings., It was however, as Pocius testified, a quiescent body.
Few of the employees ever utilized it as a means of presenting griev-
ances to the management. For the most part it handled only what
Benedict termed "minor" or "petty" 'grievances.' As Lussier put it
at the hearing, "So long as our demands were met on our petty griev-
ances, . . . we were satisfied." 18 The only item of major importance
discussed by the Committee with the management involved a request
for a wage increase in August 1941. ' The Committee on this occasion
called Donald 'McLachlan into a meeting and, as Pocius testified, told
him, in effect, that the men wished to stay with the respondents, but
that since the nearby defense plants were working steadily and paying
higher wages, the men wanted an increase . According to•Pocius' fur-
ther testimony, Donald replied that he would discuss the matter with
his brothers and notify the Committee of their answer . Two weeks
later Donald advised the Committee that the management had de-
cided to grant a 10-percent'wage increase, effectiveAugust'27. Pocius
admitted that thereafter he and other committeemen solicited the sig-
natures of the employees to a petition which they circulated freely,
and in large part during working hours, throughout the plant. The
petition, in the form of a letter to Donald McLachlan, stated that those
who signed wanted the management to know that they appreciated
the wage increase , that-they deprecated "the trouble" a few employees
had caused, that they did not intend to strike, and that they wished
the management to consider the petition a contract for a period of 6
months. Although 151 employees signed the petition, not a single
employee testifying at the hearing understood its meaning fully. No
one could testify as to "the trouble" referred to in the petition, pur-
portedly caused by a few of the employees. Dominic Violetta testified,
"It was for the shop so I signed it."
It is undisputed that at no time did the employees who signed the
petition purporting to designate the Committee as their representative
ever meet as a body to instruct the committeemen regarding their
wishes, to receive reports from the committeemen as to the accom-
plishments of the organization, or for any other purpose. Indeed,
Irene Derrick, an employee, called as a witness by the respondents,
did not even know who the committeeman in her department was.
Harold Adams, one of the committeemen, testified that the only reports
of the Committee meetings given to the men in his department were
made by going around to the employees individually, often during
working hours. Although Pocius was chairman of the Committee
18 The matters taken up with the respondents pertained to the installation of an electric
clock in the plant, a new machine in one of the departments , a rack to hold empty Coca
Cola bottles , cleaning the men's room , and the like.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from its inception and still occupied that position at the,time of the
hearing, he admitted on cross-examination that he did not know
whether any minutes were kept of the meetings of the Committee; that
he knew that Howard Green, clerk or secretary of the Committee,
sometimes wrote down grievances which were presented or discussed
but did not know whether a permanent record of any kind was kept,
or what Green's duties were. Further, while Pocius testified that the
Committee would take up grievances with the management as a body,
Committeeman Adams testified that Pocius alone, not the Committee,
would represent the employees. It is undisputed that the Committee
had no constitution or bylaws for its government, that no dues were
required by the organization, that it had no treasury, and, that up to
the time of the hearing it had had no occasion to make any outlay for
expenses.
It is clear that the facts concerning the formation of the Committee
cannot be appraised adequately without reference to the determined
and openly avowed hostility of the respondents to the Union. The
anti-union speeches made by Fenton and Harry McLachlan, the at-
tempts of the respondents to persuade the union leaders to renounce,
their affiliation, threats to one of the union organizers, the espionage
activity of the foremen and of Cote could serve only, as undoubtedly
they were intended, to make it clear to the employees that if'they were
to be represented at all, the only safe course open was to form an
organization which the management would approve. Upon the record
in this case, therefore, the movement to abolish the Union and to form,
an inside organization cannot, with warrant, be viewed as a spontaneous,
project of the employees.
In any event, the respondents' relations with the Committee mark
it as an organization outside the pale of the statute. Upon the an-
nouncement of its formation the respondents immediately expressed
their approval of the Committee and recognized and accepted it with-
out questioning its authority to represent the employees even though
there was then outstanding, and pending determination under the
auspices of the Board, the 'conflicting claim of the Union as exclusive
representative of the employees. Further, the donation by the re-
spondents of time, property, and facilities to the Committee, both at
the critical formative stage of its organization and for its use in the
day-to-day administration of its affairs, constituted a most important
subsidy. The lack of any provision for dues, the almost complete
concern of the organization with matters of minor importance, its
willingness to surrender the right of the employees to strike, its eager-
ness to assure the respondents of its loyalty to the management, and
its opposition to those who may have caused "trouble"-clearly those
who advocated the Union-and the lack of any effective means for
H. McLACHLAN & COMPANY, INCORPORATED 1137
control of the organization by the rank and file of the employees are
all further indicia of the, character of the Committee as an employer-
dominated organization.
Upon the totality of the circumstances herein disclosed, we concur
in the finding of the Trial Examiner that the respondents, and each
of them, have dominated and interfered with the formation and ad-
ministration of the Committee and contributed support thereto, there-
by interfering with, restraining, and coercing their employees in the
exercisewof the rights guaranteed in Section 7 of the Act.
D. Discrimination as to tenure and terms and conditions of
employment.
1. The .discriminatory withholding of regular employment
On June 9, '1941, the respondents suspended 37 Maclan employees
who had attended a joint meeting, held in Danbury on June 7, of the
East Brookfield and Danbury locals of the Union. The meeting was'
held to acquaint the Maclan employees with the value of membership
in the Union and also for the purpose of pointing out to them the sit-
uation in Danbury. On June 16, 1941, these employees were returned
to w"o"rk pursuant to the afore-mentioned consent` election agreement
and were paid for the time lost, the respondents paying half and the
Union the other half. As a result of the agreement the Union did not
charge and the complaint did not allege that these suspensions were
discriminatory. However, the day following the consent election of
June 19, the respondents admittedly commenced withholding regular
employment from 11 of these employees by assigning them to "day on
and day off" work until July 7, 1941.10
Nine of the 11 employees worked in the wet-down department. The
other,2, Eleanor Conley and George Holihan, were feeders, engaged
in a process preliminary to the wet-down operations. According
to the testimony of Night Superintendent Benedict and Foreman
Varga, the 9 wet-downers received irregular employment during this
period because of a shortage of feeders and toners, on whose work
the wet-down operators were dependent. Benedict and Varga testified
"The complaint alleges that the respondents discriminated as to 15 named employees :
Frank Bielanski , Joseph ( James ) Collins, Eleanor Conley, Victor Dennett, Raymond
Gagnon , George Holihan , Roscoe Holmes , James Inglis , Louis Marion, Isadore Miner, Lionel
Miner, Romeo Miner, Cayetano ( James ) Rio, William Taylor , and Edward White. It is
however, not disputed , and the record establishes , that except for Eleanor Conley and
George Holihan, only employees working in the wet-down department of the plant, who
attended the Danbury meeting, received irregular employment However, Joseph (James)
Collins, Victor Dennett , Raymond Gagnon , and William Taylor worked in other depart-
ments and did not receive irregular employment. We find, as did the Trial Examiner,
that there is no evidence to support the allegations of discrimination in regard to the work
assignments of these 4 employees . The cases of the remaining 11 employees. however,
stand upon a different footing.
493508-43-vol. 45--72
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further that the employees in question were selected for the irregular
employment, which they claimed thus. became necessary, because they
had gone to Danbury instead of reporting for work,on June 7.
Foreman. Schultz, who was in charge of the forming department,
where the feeding operations were performed, testified that the need
for additional feeders at this time was occasioned by the fact that
business was then expanding because of the busy season. Benedict
and Varga admitted further that there was no shortage of work in
the department whose operations immediately followed the wet-
down process and that the employees in all other departments worked
full time in this period. Furthermore, if it were true that one of the
reasons for giving the wet-downers irregular employment was a
shortage of feeders, there would appear to be no reason for requiring
Conley and Holihan, two of the feeders, to take time off during this
period. Yet, Conley and Holihan were directed so to do in this
period. Foreman Schultz sought to attribute the time lost by Conley
to the fact that a toner had been ill at about that time, necessitating
the shut-down of the machine which the toner and feeder operated
as a team. It was his purpose, Schultz asserted, to equalize the time
lost by this feeder among the other feeders, by placing him on the
following shift and requiring the feeder on that shift to take time
off, repeating this process until the ill employee recovered or was
replaced and all of the forming machines were in full operation.
Although this would appear also to explain why Holihan lost a day's
work during the week ending June 28, it would provide no explana-
tion for the day lost by Holihan during the following week, when
all of the machines were running. We, like the Trial Examiner, do
not credit the explanation of Benedict and Varga in this regard.
The record establishes clearly, and we find, as did the Trial Exam-
iner, that there was sufficient full-time work for the entire comple-,
ment of the respondents' plant personnel in this period, including
the 11 employees who were given irregular employment. By attend-
ing the Danbury meeting these 11 had clearly marked themselves as
staunch adherents of the Union. Even if it be assumed that their
failure to report for work on the day of the Danbury meeting was
in violation of plant rules, they had already been fully disciplined
for that infraction by suspension. Any further penalty would clearly
be out of all proportion to the nature of the offense, and the selection
of these employees for irregular employment, if a reduction of opera-
tions were necessary, would in any event constitute discrimination
against them merely because of their union activity in attending the
Danbury meeting. Since, as we have found, the respondents' opera-
tions did not warrant any reduction in employment at this time, and
in view of the history of implacable hostility toward the Union and
H..: McLACHLAN '& COMPANY, INCORPORATED 1139
those- who espoused its cause, we conclude that, in placing the -11
employees upon a "day on and day off" basis, the respondents were
actuated by a desire to penalize those whom they deemed the most
active union protagonists. We conclude further that since the Union
lost the consent election the respondents seized upon that fact as the
opportunity for realizing their initial desire to rid themselves of the
Union and that they- did so by discriminating, as "indicated, against
these prominent union members.
We find, as did the Trial Examiner, that the respondents discrim-
inatorily withheld regular employment from Frank Bielanski,
Eleanor Conley, George Holihan, -Roscoe Holmes, James Inglis, Louis
Marion, Isadore Miner, Lionel Miner, Romeo Miner, Cayetano
(James) Rio, and Edward White, thereby discouraging membership
in the Union and interfering with, restraining, and coercing their
employees in the, exercise of the rights guaranteed in Section 7 of
the Act.
2. The discriminatory discharges
During the 2 weeks immediately following the period of the "day
on and day off" work, the respondents discharged Eleanor Conley,
George Holihan, Raymond Gagnon, Cayetano (James) Rio, Louis
Marion, and Lionel Miner. We shall consider each of the discharges
seriatim.
Eleanor Conley and George Holihan. Conley began to work for
Maclan in 1936. She was not only the sole union member among the
girls -employed at -the plant but she prominently indicated her sup-
port of the Union. She wore her union button to work; attended
union meetings spied upon by Cote and the respondents' supervisors;
and was among those who had -gone to the Danbury meeting and
who had therefore been given "day on and day off" work. The re-
spondents admitted that she was the most experienced and best
qualified employee in her department.
Holihan was employed by the respondents in May 1941, and soon
thereafter joined the Union. He solicited employees to join, attended
union meetings which were spied upon my Cote and the respondents'
supervisors, and went to Danbury. For the last named of his activ-
ities he was given "day on and day off" work.
The respondents alleged that their employment was terminated be-
cause they had refused to break in newly hired feeders.
Conley testified that, on June 24 or 25, Foreman Schultz asked her
to teach Arthur Sausville, one of the new feeders, the mechanics of
the job. She testified that on that occasion she agreed to do so after
being assured by Schultz that she would lose no time in the process.
However, when she had completed her instruction of Sausville, she
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was required to take a day off without pay. Her testimony to this
effect was corroborated by that of Sausville , who testified further
that he worked on the very day that Conley was deprived of work.
Conley's continued testimony is that, on July 3, she was asked again
to break in a new man, and that, because of her experience during the
previous week and because Schultz would not assure her that she
would not again lose time , she refused . She was thereupon dis-
charged by Schultz.
Holihan testified that, on July 7, Schultz asked him to break in a
new feeder and that, knowing what had happened to Conley and
prompted by fear that he would lose time after doing so, he refused,
and was discharged.
In marked contrast to the treatment accorded Conley and Holihan,
Louis Hayes, his department 's representative on the Committee, tes-
tified that, although he had refused to break in the very man whom
Holihan had turned down he was not disciplined and was thereafter
promoted to one of the better jobs in the plant. Although admitting
that he had no distinct recollection of the matter, Foreman Schultz
denied that Hayes had refused to break in the new employee . - Neither
we, nor the Trial Examiner , credit Schultz 's denial.. The testimony
of Conley and Holihan concerning the circumstances of their dis-
charge is substantially undisputed and we, like the Trial Examiner,
find it to be true.
It is clear that Conley and Holihan were known proponents of the
Union. The difference in the respondents ' treatment of Hayes on
the one hand , and Conley and Holihan on the other , can be attributed
to the difference in loyalty to the organization which the respondents
proposed to defeat.
Raymond Gagnon . The discharge , of Gagnon took place on July 10,
1941, only 3 days after that of Ho ] ihan. He began to work for Maclan
in 1937, and in November of 1938, immediately after he went to Dan-
bury and reported to several of his fellow employees that workers in
Danbury were receiving higher rates than the respondents were paying
at East Brookfield , he was discharged by Varga, purportedly for doing
poor work and causing the spoilage of materials . When he was re-
hired, 3 days later, General Superintendent McKee told him, according
to his testimony , that he "knew too much," but that he would be taken
back upon the condition that he was "to forget what he knew." It is
clear that Gagnon and Rio were the most active union members. He
and Rio were the first to confer with Booth on a plan of organization
and Gagnon 's father's cottage was used for the early secret union meet-
ings, some of which were attended by Cote, the respondents' espionage
agent. He was present at later union meetings which were spied upon
by the respondents ' supervisors . , He was a member of the union com-
H. McLACHLAN & COMPANY, INCORPORATED, 1141
mittee which, in company with Booth, called upon the respondents to
seek recognition for the Union. He was one of those summoned by
McLachlan -at the meeting of May 28- just before the conference with
the union representatives to McLachlan's office, where McLachlan and
Fenton attempted to persuade those present to renounce the Union.
Gagnon also was active in the solicitation of employees to join the
Union, and had been told by Schultz that, because of the will of Mc-
Lachlan's father, the plant would shut down before a union would be
allowed.
According to the respondents, Gagnon's discharge on July 10, 1941,
was due to his failure to notify the management of his absence from
work for 3 days. During the week prior to his discharge, Gagnon, as
he testified, reported to his superiors that it had been necessary for him
,to shut down his machine because Clarence Kennerson, an employee
in his department had been unable, by reason of drunkenness, to handle
the hats which Gagnon passed on to him. According to Kennerson,
Foreman Varga told him on the following workday that Gagnon had
reported him as having been drunk and advised him that, if he were in
Kennerson's place, he would "get even with" Gagnon. Kennerson tes-
tified that he interpreted the advice to mean that he should "beat up"
Gagnon. Thereafter, Kennerson admitted, he left his work bench and
followed Gagnon to the dressing room, striking and knocking him
down. Gagnon testified that he then ran out of the room and into the
floor office used by the foremen, where Varga and Donald McLachlan
then were, that he told the two that he was leaving the plant to swear
out a warrant for Kennerson's arrest and to see a doctor on account of
his injuries, and that Donald made no reply but directed Varga to see
if he could straighten the matter out with Kennerson. Kennerson,
who had followed Gagnon out of the dressing room and was waiting
outside the office, testified that he was told by Varga to go back to work,
that he would not lose his job, and that, if lie were arrested, he was to
swear out a warrant against Gagnon without any concern about the
expense involved.
After leaving the plant, Gagnon testified, he swore out a complaint'
against Kennerson for assault and battery and was treated by a
doctor for his injuries. Varga, according to his own admission,
posted a bond for Kennerson's release under Gagnon's warrant of
arrest. Gagnon returned to work on July 10. He testified without
contradiction that, upon his return, Donald McLachlan asked him
where he had been on Monday, the day of the assault, who had given _
him permission to leave the plant, and where he had been since Mon=
day, and then, asserting that the respondents were not running a club
house, told Gagnon that he was discharged. Varga admitted that,
when the counter-complaint which he advised Kennerson to swear
1142 DECISIONS OF' NATIONAL LABOR RELATIONSa BOARD
out, was dismissed , and Kennerson was fined $15 upon Gagnon's corn-
plaint, he, Varga, paid the fine .20
Gagnon admitted at the hearing that he had failed to notify- the
respondents that he would not be at work on Tuesday and Wednes-
day. It is apparent that Donald McLachlan and Varga knew the
reason for his absence on Monday, as well as the -2 days which fol-
lowed. In any event, we are not persuaded that Gagnon' s failure
to notify the respondents of his absence caused his discharge, for the
evidence shows that the rule as to notification of absences was, if at all,
not strictly enforced. Thus, Inglis, one of the employees, testified
that, although he had on several occasions failed to report his ab=
sences , he was neither reprimanded nor disciplined. We find, as did
the Trial Examiner, that Gagnon was not discharged for failing to
report his absences.
It is amply clear that the attack upon Gagnon, which caused him
to leave the plant, was provoked, if, indeed, not inspired, by the re-
spondents themselves,Z" and that the respondents seized upon the cir-
cumstances which they themselves had brought about as a pretext for
getting rid of Gagnon. Our conclusion in this respect is underlined
by the fact that Kennerson was in no way disciplined for attacking
Gagnon, although he left his work to do so. On the contrary, the
respondents made it clear that they approved of his conduct.
Cayetano (James) Rio, Louis Marion, and Lionel Miner. Rio, who
began his employment with Maclan in 1939, was. like Gagnon, an
outstandingly active member of the Union, and it is undisputed that
the respondents were aware fully of the prominence of his efforts and,
of his militancy in refusing to abandon the Union. He was one of
the original members of the Union and attended the meetings spied
upon by Cote and the respondents ' supervisors . He was also a mem-
ber of the committee of, the Union which, in company with Booth;
called upon the respondents to demand recognition for the Union.
He was also spokesman for the Union -at the conference of union
leaders called by Harry McLachlan on May 28, at which'both; Me-,
Lachlan and Fenton attempted to persuade the men to disaffirm the
Union. Harry McLachlan admitted, at the hearing, that on one occa
sion , when he saw Rio carrying some pamphlets, he warned Rio not
to distribute them in the plant, even though he had no definite idea
of their content but "suspected" that they were "union propaganda."
Finally, Rio.was among those employees who had gone to Danbury
and had consequently been given "day on and day off" work.
20 Kennerson testified that he never repaid Varga the $15 and that Varga never re-
quested repayment. Varga testified that Kennerson did repay him this amount.
21 See N. L. R B. v. New Eta Die Co., Inc, 118 F (2d) 500, 504 (C. C. A. 3) ; Clover
Fork Coal Co. v. N. L. R. B., 97 F. (2d) 331, 335 (C C. A 6) ; N. L. R. B. v. Sunshine
Mining Co., 110 F. (2d) 780, 792 (C. C. A. 9), cert. den. 312 U. S. 678.
1
H. McLACHLAN & COMPANY, INCORPORATED ' 1-143
On the day of his discharge , while he was visiting in the plant on
his own time , Varga told Rio that Donald McLachlan wanted to
see him . After demurring , Rio consented to go to Donald McLach-
lan's office. Present in the office when Rio arrived were Fenton,
Harry and Donald McLachlan , and several foremen . Rio testified
as follows concerning what followed : When he arrived, Fenton asked
him, whether he did not like working at the plant. Rio inquired
whether there was anything wrong with his work and Fenton told
him that he had not been sent for on account of his work , that he
knew why he had been called in, that Fenton had told him once before
that he would "get" Rio "out" of the plant, and that now he was
going. Thereupon , he ordered Rio to get his clothes and leave, and
directed his, Fenton 's, bodyguard to see that Rio left. Harry Mc-
Lachlan and Varga testified that Rio had been doing poor work and
that the purpose of the interview was to urge him to cooperate more
fully with Varga, his 'foreman. According to Varga's testimony,
Donald McLachlan asked Rio why he would not cooperate and told
him, "There is no sense - to it. We can straighten , things out amongst
ourselves ." Harry McLachlan testified that, when Rio arrived in the
office, Donald started to reason with him, but did not get very far
because Rio interrupted with an obscene statement , for which he
was discharged instantly . Donald McLachlan , Fenton , and the fore-
men who were present, other than Varga, did not testify ., In their
answer, the respondents allege that Rio was discharged for
insubordination.
Although the respondents also asserted as a reason for Rio's dis-
charge that he had been guilty of poor workmanship in this period,
it does not appear from the record that, if the charge were true at
all, he was conspicuous among the employees in that regard. Further,
although , Varga testified that Rio was continually "sassing" him, the
only examples of such conduct that Varga could recall. can scarcely
be described as insubordinate in character . Thus, Varga testified, on
one occasion when he called ' Rio's attention to some poorly made hat's,
Rio "sassed" him by -stating, "It is funny, Joe; this stuff never hap=
pened before and now I am.getting it." 22
In all of the circumstances , we, like the Trial Examiner, are not
persuaded by the testimony of the respondents ' witnesses - as to the
occasion for calling Rio into session with the management officials,
or as to what occurred at that meeting. It does not appear -likely-
that Rio would , without provocation , have undertaken to use the
language ascribed to him in addressing his superiors . It is to be
22 Other examples included statements by Rio, when told to perform particular tasks,
to the effect that he had never been required to do them before; also a demand by Rio for
overtime pay for time spent in cleaning his machine after regular working hours..
r
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
noted also that Varga's account of the meeting-does not corroborate
the statement of Harry McLachlan to the effect that. hardly had. Rio
put his head in the door when he began a stream of profanity.
Varga's own testimony that Donald spoke to Rio about cooperating
and straightening matters "out amongst ' ourselves" would seem to
indicate that the respondents' purpose was to persuade Rio to abandon
further efforts to establish the Union in the plant. Rio had clearly
marked himself as a special target for reprisal. The very day that
Rio had frustrated the respondents' effort to interview selected union
members in an effort to get them to repudiate the Union, Fenton had
told him that he was too "cocky" and that he would be "put out" of
the plant. In all the circumstances we credit, as did the Trial
Examiner, Rio's version of what took place on the day of his dis-
charge and find that Rio's "insubordination" was but a disingenuous
reason given by the respondents for ridding themselves of a union
leader.
Louis Marion and Lionel Miner began their employment with
Maclan in 1939. They were employed in the wet-down department
of the plant, where they worked on one of the machines as a team.
Both were active in soliciting members for the Union, both had
attended the Danbury meeting and both had consequently received
"day on and day off" work. In addition, Marion was secretary of
the Union, and was one of the group called to McLachlan's office on
May 28, where Fenton and McLachlan attempted to persuade those
present to disaffirm the Union. As detailed above, Superintendent
McKee also tried to persuade Marion to renounce the Union and in
so doing spoke disparagingly of the Union. Also, Foreman Varga
had told Miner that Fenton was not "bluffing" when he, Fenton,
said that the plant would shut down as an alternative to granting
the Union a closed shop. Both were discharged on July 31, 1941,
immediately after the discharge of Rio.
Marion testified, without contradiction, that while at work, imme-
diately before he and Miner were discharged, Fenton asked him
whether he was not "satisfied" with his job, and accused him of
signing a union membership application. Marion testified further
that it was only after having made this accusation that Fenton asked
Varga about the quality of Marion's and Miner's work. The en-
suing conversation between Fenton and Varga was detailed by
Marion as follows :
Joe Varga says, "I got some bad hats upstairs * * * in the
last three or four days from this man." He says, "How long
will it take you to get them?" Joe Varga says, "Five or, ten
minutes." Fenton says, "Go get those hats, and maybe, five
or ten minutes from now' you don't want to work here any,
more."
'H. McLACHLAN *& COMPANY, INCORPORATED 1145
The respondents contend that Marion and Miner were discharged
because they had produced an excessive number of imperfect hats.
In support of this contention the respondents introduced evidence
showing that Marion and Miner had produced 48 imperfect hats out
of a total of 1022 hats. The imperfections thus represented only
4.7 per cent of their total work. According to President Harry
McLachlan, the total over-all percentage of imperfect hats occurring
in the plant in this period was over 8 per cent. We are satisfied
that the respondents' allegation of poor work on the part of Marion
and Miner was but a pretext for discharging these 2 active union
members. From Fenton's conversation with Marion it is clear that
the union affiliation of Marion and Miner appears as the reason,
and poor, workmanship merely a manufactured excuse, for their'
dismissal.
3. Conclusions as to the discriminatory discharges
-The , loss' by-the -Union of-the consent election of June 19 was the
signal to the respondents to rid themselves completely of whatever
vestiges of the Union remained, a desire which they admittedly en-
tertained since the first appearance of the Union. To this, end, the
respondents instituted a systematic policy of discrimination against
those employees who had been active in the affairs of the Union
through solicitation of others to join the Union, participation in
union meetings, and membership among those groups representing
the Union in dealings with the respondents. These attempts of the
respondents to rid themselves completely of the Union were first
made manifest, as has been noted, in giving to 11 employees "day
on and day off" work.
The discharges were also part of the same attempt and' followed
the "day on and day off" work with both logical and chronological
consistency. During the 2 weeks immediately following the , period
in which the "day on and day off" work was instituted, the respond-
ents discharged the six employees whose discharges have been
considered above. ,
All six had been to the Danbury meeting, all but Gagnon had been
victims of discriminatory "day on and day off" work, all had been at
the meetings which were spied upon by Cote and by the respondents'
supervisors. Conley was the only female member of the Union and
had worn her ,union -button in the plant. Gagnon -had a long history
of union activity, having been discharged by the respondents as far
back as 1938 for having gone at that time to Danbury where he inves-
tigated working conditions and reported back to the employees of
Maclan. Rio was known to the respondents for his active interest in
1146 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
the Union and had been spokesman for the Union when Fenton and
Harry McLachlan attempted to persuade certain employees to disavow
the Union; and, finally, Marion and Miner were active in soliciting
members for the Union and Marion was the Union's secretary.
In all of the circumstances disclosed by the record, we find, as did
the Trial Examiner, that the respondents discriminated in regard to
the hire and tenure of employment of Eleanor Conley, George Holihan,
Raymond Gagnon, Cayetano (James) Rio, Louis Marion, and Lionel
Miner, thereby, discouraging membership in the Union and interfering
with, restraining, and coercing their employees in the exercise of the
rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III, above,
occurring in connection with the operations of the respondents de-
scribed in Section I, above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the severaLStates and tend
'to,lead-to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the respondents have engaged in certain unfair
labor practices, we shall order that they cease and desist therefrom
and take certain affirmative action designed to effectuate the policies
of the Act.
We have found that-on May 28, 1941, and at all times thereafter,
the respondents -refused to,bargain collectively with the Union as the
exclusive representative of their employees in an appropriate unit.
In order to effectuate the policies of the Act, we shall order that, upon
request, the respondents bargain collectively with the"Union 'as the
exclusive representative of all the employees in the appropriate unit
in respect to rates of pay, wages, hours, and other terms and conditions
of employment.
We have found that the respondents dominated and interferea with
the formation and administration of the Committee and contributed
support to 'it. In order to effectuate the policies of the Act and free
the employees of the respondents from such domination and interfer-
ence, -we shall , order, the. respondents to withdraw all recognition, from
that organization as the representative of any of the employees for
the purposes of dealing with the respondents concerning grievances,
wages, rates of pay, hours of employment, and other conditions of
employment, and completely to disestablish it as such representative.
We have found that the respondents discriminatorily withheld reg-
ular employment from Frank Bielanski, Eleanor Conley, George Holi-
t - ' H: McLACHLAN "& COMPANY, 'INCORPORATED - ` 1147
rhan, Roscoe Holmes, James Inglis, Louis Marion, Isadore Miner, Lionel
Miner, Romeo Miner, Cayetano (James) Rio, and Edward White. To
effectuate the policies of the Act, we ,shall. order the -respondents to
.make whole each of these employees for the losses in earnings so
suffered by them, by payment to each of them-of a sum of money equal
-to the amount each would normally have earned as wages during the
-period in which he or she was deprived of regular employment, less
.the net earnings of each during this period.23
Having, in addition, further found that the respondents discrimina-
torily- discharged' Eleanor Conley, George - Holihan, Raymond Ga-
gnon, Cayetano (James) Rio, Louis Marion, and Lionel Miner, we
shall order the respondents to offer these employees immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and priv-
ileges, and make whole these employees for any loss in earnings suf-
fered by them as a result of the respondents' discrimination, by pay-
ment to each of them of a sum of money equal to the amount each would
normally have earned as wages from the date of the discharge to the
date of offer of reinstatement, less the net, earnings of each- during that
period.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. The respondents , McLachlan , Maclan, and Fenton, are employers
of the employees at the East Brookfield plant, within the meaning
,of Section 2 (2) of the Act.
2. Hat Workers Union, Local 85, of United Hatters, Cap and Mil-
linery Workers International Union , and the Shop Committee are
labor organizations , within the meaning of Section 2 (5)_of the Act.
3. All the employees engaged in production at the East Brookfield
plant of Maclan , excluding executives , supervisors , and clerks, at all
times material herein constituted and now constitute a unit appropriate
for the purposes of collective bargaining , within the meaning of Sec-
tion 9. (b) of the Act.
4. Hat Workers Union, Local 85, of United Hatters , Cap and Mil-
linery Workers International Union, was on May 28 , 1941 , and at all
By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with his obtaining work and working
elsewhere than for the respondents , which would not have been incurred but for the
unlawful discrimination against him and the consequent necessity of his seeking employ-
ment elsewhere . See Matter of Crossett Lumber Company , and United Brotherhood of
Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8
N. L. R. B. 440. Monies received for work performed upon Federal, State, county , munici-
pal,. or other work-relief projects shall be considered as earnings . See Republic Steel
Corporation v. N. L. R. B„ 311 U. S. 7.
I
1
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
times since has been the exclusive representative of all the employees
in such unit for the purposes of collective bargaining, within the
meaning of Section 9 (a) of the Act.
5. By refusing to bargain collectively with Hat Workers Union,
Local 85, of United Hatters, Cap and Millinery Workers Interna-
tional Union as exclusive representative of the employees in the ap-
propriate unit, the respondents have engaged in and are engaging
in unfair labor practices, within the meaning of Section 8 (5) of the
Act.
6. By dominating'and interfering with the formation and adminis-
tration of the Committee and contributing support thereto, the re-
spondents have engaged in and are engaging in unfair labor practices,
within the meaning of Section 8 (2) of the Act.
7. By discriminating in regard to the terms and conditions of em-
ployment of Frank Bielanski, Eleanor Conley, George Holihan, Ros-
coe Holmes, James Inglis, Louis Marion, Isadore Miner, Lionel Miner,
Romeo Miner, Cayetano (James) Rio, .and Edward-White, and by
discriminating in regard to the hire and tenure of employment of
Eleanor Conley, George Holihan, Raymond Gagnon, Cayetano
(James) Rio, Louis Marion, and Lionel Miner, thereby discouraging
membership in the Union, the respondents have engaged in and are
engaging in unfair labor practices, within the meaning of Section 8
(3) of the Act.
8. By interfering with, restraining, find coercing their employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondents,have engaged in unfair labor practices, within the meaning
of Section 8 (1) of the Act.
9. The foregoing unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act. ,
10. The.respondents have not discriminated in regard to the regu-
larity of employment of Joseph (James) Collins, Victor Dennett,
Raymond Gagnon, and William Taylor in the period from June 20
to July 7, 1941.
ORDER
I
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-
ents, H. McLachlan & Company, Incorporated, Danbury, Connecticut,
The Maclan Hat Company, East Brookfield, Massachusetts, and Ed-
ward Fenton, New York City, and the officers, agents, successors, and
assigns of each shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Hat Workers Union,
Local 85, of United Hatters, Cap and Millinery, Workers Interna-
H: McLACHLAN & COMPANY, INCORPORATED 1149
tional Union, as the exclusive representative of all the employees en-
gaged in production at the East Brookfield plant of The, Maclan Hat'
Company, excluding executives, supervisors, and clerks;
(b) Dominating or interfering with the formation and administra-
tion of, or contributing support to, the Shop Committee, or any other
labor organization of their employees;
(c) Discouraging membership in Hat Workers Union, Local 85, of
United Hatters, Cap and Millinery Workers International Union, or
in any other labor organization of their employees, by granting
irregular employment to, discharging, or refusing to reinstate any of
their employees, or by discriminating in any other manner in regard
to their hire and tenure of employment, or any term or condition of
their employment;
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining, or other mutual aid and
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) Upon request," bargain collectively with Hat Workers Union,
Local 85, of United Hatters, Cap and Millinery Workers International
Union as the exclusive representative of all the- employees engaged in
production at the East Brookfield plant of The Maclan Hat Company,
excluding executives, supervisors, and clerks, in respect to rates of
pay, wages, hours of employment, and other conditions of employment;
(b) Withdraw all recognition from the Shop Committee as the
representative of any of their employees for the purpose of dealing
with the, respondents concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment
end completely disestablish the Shop Committee as such represent-
ative:
(c) Make whole Frank Bielanski, Eleanor Conley, George Holihan,
Roscoe Holmes, James Inglis, Louis Marion, Isadore Miner, Lionel
Miner, Romeo Miner, Cayetano (James) Rio, and Edward White for
any losses in earnings they may have suffered by reason of the respond-
ents' discrimination in regard to their terms and conditions of em-
ployment in the period from June 20 to July 7, 1941, by payment to
each of them of a sum of money equal to that which each would nor-
mally have earned as wages during'that period, less the net earnings
of each, if any, during that period;
(d) Offer to Eleanor Conley, George Holihan, Raymond Gagnon,
Cayetano (James) Rio, Louis Marion, and Lionel Miner immediate
and full reinstatement to their former or substantially equivalent
I
1150 DECISIONS OF NATIONAL. LABOR RELATIONS--BOARD
positions, without prejudice to their seniority and other rights and
privileges ;
(e) Make whole Eleanor Conley, George Holihan, Raymond Ga-'
gnon, Cayetano (James) Rio, Louis Marion, and Lionel Miner for any
loss of pay they may have suffered by reason of the respondents' dis
crimination in'regard to their hire and tenure of employment by,pay-
ment to each of them of a sum of money equal to that which each would
normally have earned as wages during the period from the date of his
or her discharge to the date of the offer of reinstatement, less the ,net
earnings of each during that period;
(f) Post immediately in conspicuous places throughout the East
Brookfield plant of The Maclan Hat Company, and maintain for a
period of at least sixty (60) consecutive days from the date of posting,
notices to their employees stating: (1) that the respondents will not
engage in the conduct from which they are ordered to cease and desist
in paragraphs 1 (a), (b), (c), and (d) of this Order; (2) that they,
will take the affirmative action set forth in paragraphs 2 (a), (b), (c),
(d), and (e) of this Order; and (3) that the respondents' employees
are free to become or remain members of Hat Workers Union. Local 85,
of United Hatters, Cap and Millinery Workers International Union,
and that the respondents will not in any manner discriminate against!
any employee because of membership in or activity on behalf of that
organization ;
(g) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps the'
respondents have taken to comply, herewith.
IT IS Y CBTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the respondents discriminated in
regard to the regularity of employment of Joseph (James) Collins;
Victor Dennett, Raymond Gagnon, and William Taylor in the period
from June 20 to July 7, 1941.