J. H. Rutter--Rex Manufactuing Co., Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1949

86 N.L.R.B. 470 (N.L.R.B. 1949)

In the Matter of J. H. RUTTER-REX MANUFACTURING COMPANY, INC.
and AMALGAMATED CLOTHING WORKERS OF AMERICA, C. 1. O. .
Case Nos. 15-C-1216 and 15-CA-33.-Decided October 12, 1949
DECISION
AND
ORDER
On October 28, 1948, Trial Examiner Charles W. Schneider issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
aiid take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices alleged in the complaint, and recommended dismissal of these
allegations. Thereafter the General Counsel and the Respondent filed
exceptions to the Intermediate Report and supporting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner only insofar as they are consistent with this De-
cision and Order.
1. The Trial Examiner found that the speeches by J. H. Rutter, the
Respondent's president, and by W. E. Shaack, the Respondent 's super-
intendent, "contained no evident threats of reprisal." We do not
agree. Rutter's speech to the employees on June 20, 1946, devoted
chiefly to a discussion of the Union, contained readily apparent threats
of reprisal for continued union activities, as indicated by the follow-
ing excerpts:
I heard that some of our employees had joined a union and are
making it hard on employees who have not joined a union, by
' Pursuant to the provisions of Section 3 (b) of the Act, as amended , the National Labor
Relations Board has delegated its powers in connection with this proceeding to a three,
member panel [Chairman Herzog , and Members Houston and Murdock].
86 N. L. R. B., No. 68.
470
J. H. RUTTER-RE.X MANUFACTURING COMPANY, INC. 471
refusing to talk to those who have not joined, by refusing to work
properly with those employees who have not joined and by inten-
tionally staying away from work. If this is true-and you em-'
ployees know more about this than I do, then it justifies my belief
that a union brings nothing but unpleasantness and friction of a
kind which runs a company out of business.
I am not going to tolerate this kind of thing. If our employees
don't work the way they ought to, then we are going to have to,
get rid of them and replace them with the people who are willing
to work together. If that can't be done, we'll just have to shut
this factory down and go out of business.
We find that these statements were coercive, and that the Respondent
thereby violated Section 8 (1) of the Act.
2. The Trial Examiner found, and we agree, that by Rutter's
announcements on September 13, 1946, of a wage increase and vacation
plan, the Respondent violated Section 8 (1) of the Act. The Trial
Examiner made no finding of violation, however, with respect to other
speeches and announcements made by Rutter which contained promises
of benefit to the employees. The Trial Examiner's failure so to find
was based upon his premise that the complaint did not specifically
allege that these other speeches were unfair labor practices, and that
the complaint was therefore not sufficiently informative to warrant
specific findings. We are convinced, however, that the allegation in the
complaint that the Respondent violated the Act by "making anti-union
speeches in the plant" was. adequate to put the Respondent on notice
as to this issue. Furthermore, the bill of particulars furnished by the
General Counsel at the Respondent's request specified that the "anti-
union speeches" had been made by Rutter and Shaack during the period
from March to September 1946. Moreover, the Respondent had ample
opportunity to, and did, present evidence on the subject of these
speeches, and at no time claimed surprise or lack of specificity in this
connection. We find that by Rutter's speeches on April 26, 1946, in
which changes in the bonus system were announced, and on May 10,
1946, in which a pay increase was announced, the Respondent violated
Section 8 (1) of the Act.2
3. Employee Boseman testified, without denial, that on the day before
the election, Supervisor Esperon 8 told her, in the course of a conversa-
tion about Boseman having had her picture taken with Wright, the
union organizer, that : "I'd hate to have you leave us and lose your job
because Mr. Rutter says he is definitely going to close the plant if the
union comes into the plant." Although this statement clearly contains
'The Trial Examiner found, and we agree, that these speeches, which contain promises
of benefit, are not within the protection of Section 8 (c) of the Act.
8 Esperon was a supervisor at the time of this incident, but had left the Respondent's
employ at the time of the hearing.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a threat of reprisal for union activities, the Trial Examiner did not
find it violative of the Act on the ground that it was merely an isolated
remark in violation of the Respondent's neutrality instructions. We
do not regard it as isolated, in view of other events occurring during
the same period. Moreover, the Respondent's instructions to the super-
visors with regard to expressions of opinion about the Union or its
,organizing campaign, were never communicated to the employees.
The Respondent could not by neutrality instructions to its supervisors
which were not communicated to its employees, relieve itself of respon-
sibility for coercive anti-union statements of supervisors which em-
ployees might reasonably believe to reflect the views of management'
Moreover, Esperon's statement actually reflected management policy
as shown by Rutter's speech of July 20, 1946. We find that Esperon's
statement was coercive, and that the Respondent thereby violated
Section 8 (1) of the Act.
4. Rule 29 of the Respondent's factory regulations states :
No employee is allowed to distribute any advertising pamphlets
or posters, nor sell tickets on games of chance, lotteries, etc.
Soliciting of any kind is prohibited.
Although the rule does not indicate whether it is applicable only to
working time, or also to the employees' off-duty time, the Trial Exam-
iner found that it was lawful as interpreted and applied by the Re-
spondent. We do not agree. As the Trial Examiner found, no special
circumstances exist in the instant case' for extending to the employees'
own time the prohibition in the rule as to organizing activities. Al-
though Superintendent Shaack testified that the rule is, as a matter
of practice, applicable only to working time, it does not appear either
from the wording of the rule itself, or from a speech Shaack made
about it, that such an interpretation has ever been clearly explained to
the employees. We, therefore, find that the rule is invalid insofar as it
prohibits union solicitation on company property during the em-
ployees' own time, and we shall order the rule rescinded to that extents
5. The Trial Examiner concluded that the Respondent did not dis-
criminatorily discharge the six employees named in the complaint.
The General Counsel has excepted to this conclusion with respect to
three of the dischargees, Norman, Murphy, and Richards.
The Trial Examiner based his conclusion as to Norman upon his
findings as to the credibility of the witnesses. We adopt these findings.
The Trial Examiner found that Murphy and Richards engaged in
union solicitation during working hours. These findings were based
principally upon his findings as to the credibility of the witnesses.
4 Matter of Wadesboro Full -Fashioned Hosiery Mills, Incorporated , 72 N. L. R. B. 1064.
6 Cf. N. L. R. B. v. May Department Stores Company , 154 F. 2d 533 ; (C. A. 8, 1946)
Matter of Coldblatt Bros ., Inc., 77 N. L. R. B. 1262.
6 Republic Aviation Corporation v. N. L. R. B., 324 U. S. 793 (1945).
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 473
We adopt these findings. The Trial Examiner further found that
there was no substantial ground for finding discriminatory enforce-
ment, as to the activities of Murphy and Richards, of the Respondent's
no-solicitation rule. We agree, and find that the discharges of Murphy
and Richards were not discriminatory.'
6. An amended charge, and a complaint based thereon, were served
upon the Respondent on May 6, 1947. Neither this charge nor the
complaint contained an allegation of refusal to bargain. On Feb-
ruary 11, 1948, however, the Union filed an additional charge alleging
a refusal to bargain "on or about September 11, 1947, and at all times
since." This charge was served on the Respondent on or about Feb-
ruary 11, 1948. On April 14, 1948, the General Counsel issued an
amended complaint alleging that the Respondent had refused to bar-
gain with the Union "beginning on or about September 18, 1946 con-
tinuously through September 11, 1947 and at all times thereafter."
The Respondent contends that the Board is barred from finding a
refusal to bargain prior to September 11, 1947, by lack of a charge
making such an allegation as to the earlier period.
The Respondent's contention that the charge must be specific as to
each allegation derives from the interpretation of the 6-month limi-
tation on the filing of charges contained in Section 10 (b) of the Act,
as amended.' We do not so construe this provision. Under- the origi-
nal Act, the purpose of a charge was merely to initiate a Board inves-
tigation.9 This is still the primary function of the charge. We have
recently held that the proviso to Section 10 (b) does not require that
the charge specify or particularize each unfair labor practice to be
litigated, and that a complaint may lawfully issue based on a charge
which does not contain allegations of the unfair labor practices alleged
in the complaint, provided only that the charge was timely filed and
served.10
As the charges herein were timely filed and served ,1' we find that
the Respondent's contentions based on the proviso to Section 10 (b)
are without merit.
7 Member Houston dissents from the finding of the majority that the discharges of
Murphy and Richards are not in violation of the Act. He would find , in view of : the
summary manner in which these employees were discharged without prior warning, the
harshness of the punishment; the lack of evidence to show that the Respondent cus-
tomarily discharged employees for infractions of the no-solicitation rule ; and the fact
that the rule itself does not state , as do some of the other rules of the Respondent, that
violations are punishable by dismissal : that the Respondent precipitately discharged
Murphy and Richards because the activity in which they had engaged and which brought
about their discharge , was activity in support of the Union.
8 The pertinent portions reads : ". . . no complaint shall issue based upon any unfair
labor practice occurring more than 6 months prior to the filing of the charge with the
Board and the service of a copy thereof upon the person against whom such charge is
made....
9 N. L. R. B. v. Indiana & Michigan Electric Company, 318 U. S. 9 (1943).
io Matter of Cathey Lumber Company, 86 N. L. It. B. 157.
" Matter of Itasca Cotton Manufacturing Company, 79 N. L. R. B. 1442.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner sets out in detail in his Intermediate Report
the circumstances surrounding the bargaining conferences of the par-
ties, including the Respondent's refusal to incorporate in a contract
its prevailing wage rates; its protracted delays in arranging for meet-
ings requested by the Union; and its passiveness in waiting for the
Union to make all requests for meetings, and in refusing offer after
offer presented by the Union without at any time presenting any
counterproposals. The Trial Examiner then concludes that by failing
to meet with the Union after September 11, 1947, the Respondent
had refused to bargain with the Union, within the meaning of the
Act, on and after that date. The Respondent's entire course of con-
duct, however, in its bargaining relations with the Union, at all times
after December 2, 1946, the date of. the Union's first request for nego-
tiations following the final disposition of the representation proceed-
ings, manifested an intention to go "through many of the motions of
collective bargaining" which were "not intended to lead to the con-
summation of an agreement with the Union, but merely to preserve
the appearance of bargaining." 12 Accordingly, we find that not only
since September 11, 1947, but during the entire period since Decem-
ber 2, 1946, the Respondent failed and refused to bargain in good faith
with the Union as the exclusive representative of its employees, in
violation of the Act.13
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, J. H. Rutter-Rex
Manufacturing Company, Inc., New Orleans, Louisiana, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Clothing
Workers of America, C. I. 0., as the exclusive representative of all
its production and maintenance employees, including shipping depart-
ment employees, but excluding all office and clerical employees, line
operators, mechanics, supervisors, floorladies, and all other super-
visors within the meaning of the Act; 14
(b) Offering benefits to employees to induce them to refrain from
joining or to abandon membership in, Amalgamated Clothing Workers
of America, C. I. 0., or any other labor organization;
11 Matter of Tower Hosiery Mills, Inc., 81 N. L. R. B. 658.
is Matter of Aldora Mills , 79 N. L. R. B. 1.
14 We have altered the description of the appropriate unit previously certified by the
Board to make it conform to the language of the amended Act.
J. H.' RUTTER-REX MANUFACTURING COMPANY, INC. 475
(c) Threatening discharge of employees, or curtailment of opera-
tions, in the event its employees joined a union;
(d) Issuing or enforcing a rule prohibiting union solicitation on
company premises during employees' nonworking time.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their • right to self-organization, to
form, join, or assist Amalgamated Clothing Workers of America,
C. I. 0., or any other labor organization, to bargain collectively
through representatives of their own choosing and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activi-
ties except to the extent that such right may be affected by agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a). (3) of the Act, as guar-
anteed in Section 7 thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Bargain collectively with Amalgamated Clothing Workers of
America, C. I. 0., as the exclusive representative of its employees
in the appropriate unit, and embody any understanding reached in
a signed agreement;
(b) Rescind immediately its rule prohibiting solicitation on its
premises insofar as it prohibits union solicitation on the employees'
nonworking time;
(c) Post at its plants at New Orleans, Louisiana, copies of the
notice attached hereto marked "Appendix A." 15 Copies of said
notice, to be furnished by the Regional Director for the Fifteenth
Region, shall, after being signed by the Respondent's representative,
be posted by the Respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material ;
(d) Notify the Regional Director for the Fifteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent (1) discharged Audrey L. Norman, Marie Murphy,
Dora Nella Richards, Creasie White, Minnie Lee Springfield, and
Gertrude Spears because of their union membership or activity, and
is In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice , before the words : "A DECISION AND ORDER," the
words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) interrogated employees as to their union membership or activity,
be, and it hereby is, dismissed 16
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with AMALGAM-
ATED CLOTHING WORKERS OF AMERICA, C. I. 0., as the Exclu-
sive bargaining- representative of all our employees in the appro-
priate unit described below. We will not in any other manner
interfere with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form, join, or assist AMAL-
GAMATED CLOTHING WORKERS OF AMERICA, C. I. 0., or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all of such activities except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the National
Labor Relations Act.
WE WILL bargain collectively, upon request, with respect to rates
of pay, hours of employment, or other conditions of employment
with AMALGAMATED CLOTHING WORKERS OF AMERICA, C. I. 0., as
the exclusive representative of all our production and mainte-
nance employees, including shipping department employees, but
excluding all office and clerical employees, line operators, me-
chanics, supervisors, floor ladies, and all other supervisors within
the meaning of the Act.
WE WILL embody any understanding reached in a signed agree-
ment with AMALGAMATED CLOTHING WORKERS OF AMERICA, C. I. 0.
WE HEREBY RESCIND our rule forbidding solicitation on company
property insofar as it prohibits union solicitation on employees"
nonworking time.
All our employees are free to become, remain, or refrain from
becoming members of the above-named union or any other labor
organization except to the extent that the right to refrain may be
9 Member Houston dissents from the Order dismissing the complaint insofar as it relates
to the discharges of Marie Murphy and Dora Nella Richards.
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 477
affected by a lawful agreement requiring membership in a labor
organization as a condition of employment.
J. H. RUTTER-REx MANUFACTURING COMPANY, INC.,
Employer.
By ----------------------------------------------------
(Representative ) ( Title)
Dated - -------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Messrs . Andrew P. Carter , C. Paul Barker , and Richard C. Keenan, for the
General Counsel.
Mr. Samuel Lang, of New Orleans, La ., and Mr. W. Gordon McKelvey, of Nash-
ville, Tenn ., for the Respondent.
Mr. Louis Stark, of New Orleans , La., for the Union.
STATEMENT OF THE CASE
Upon amended charges filed on May 1, 1947, by Amalgamated Clothing Workers
of America, C. I. 0., herein called the Union, the National Labor Relations Board
issued a complaint on May 5, 1947, against J. H. Rutter-Rex Manufacturing
Company, Inc., New Orleans, Louisiana, herein called the Respondent. The com-
plaint alleged that the Respondent had engaged in and was engaging in unfair
labor practices in violation of Section 8 (1) and (3) of the National Labor
Relations Act, 49 Stat. 449. More specifically the complaint alleged that the
Respondent had, on various dates from June 7, 1946, to November 30, 1946,
discharged six named employees' because of their union membership and activity.
In addition the complaint alleged the following violations of the Act. Interro-
gation of employees as to union membership, employment of a detective agency to
spy upon union activity, prohibition of union activity by employees under penalty
of discharge, threats to shut down or curtail plant operations if the Union came
in, announcement of wage increases and vacations to influence a Board election,
and making antiunion speeches in the plant. The complaint and notice of
hearing, accompanied by a copy of the charge upon which the complaint was based,
were served upon the Respondent on May 6, 1947, and upon the Union on May 12,
1947. The case was noticed for hearing on June 9, 1947. Thereafter it was
postponed several times, in some instances at the request of the Respondent, in
others apparently at the instance of the Regional Director.
On June 23, 1947, the Labor Management Relations Act of 1947, 61 Stat. 161,
amending the National Labor Relations Act, became law. As a result, a number
of hearings then pending before the Board were postponed for consideration of
their status in view of the amendement. On July 16, 1947, the hearing in the
instant case was indefinitely postponed. In the meantime the Respondent had,
on various dates, filed a number of pleadings in response to the complaint: its
answer on June 16, 1947; a motion for dismissal on June 30, of the 8 (3) allega-
tions of the complaint; and a motion for Bill of Particulars on the same date.
'Audrey L. Norman, Marie Murphy, Dora NeIIa Richards, Creasle White, Minnie Lee
19pringfield , and Gertrude Spears.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The basis for the motion to dismiss was that more than 7 months had elapsed
between the discharges alleged as 8 (3) and the serving of charges thereof on
the Respondent.
No further formal action was taken until February 11, 1948. On that date
the Union filed a further charge alleging that on and since September 11, 1947,
the Respondent had refused to bargain with it. This charge was served on the
Respondent, according to the Respondent's brief, on February 11, 1948, accord-
ing to the General Counsel's brief, on February 12. On April 14, 1948, almost a
year after the issuance of the original complaint, the General Counsel issued an
amended complaint, the allegations of which, while identical with those of the
original complaint with respect to the charged 8 (1) violations, differed from
the original in the following respects: (a) the 8 (3) allegations of the original
complaint were abandoned; and (b) the amended complaint contained an allega-
tion of refusal to bargain, based upon the February 11, 1948, charge. Copies of
the amended complaint, accompanied by copies of the May 1, 1947, and February
11, 1948, charges, and notice of hearing thereon, were duly served upon the Re-
spondent and the Union. In due course the Respondent filed a number of plead-
ings in response to the complaint : an amended answer denying the commission
of unfair labor practices ; a motion to strike various allegations of the amended
complaint on the ground that they related to acts occurring more than 6 months
prior to the filing and service of charges upon the Respondent; a motion to
dismiss upon substantially the same grounds ; and an amended motion for bill
of particulars. These various motions were referred to the undersigned desig-
nated Trial Examiner for disposition, who by order, granted the amended
motion for bill of particulars in part, and reserved ruling on the motions to dis-
miss and to strike until the hearing. The General Counsel thereafter supplied a
bill of particulars in response to the Order.
Pursuant to notice a hearing was held at New Orleans, Louisiana, on May
25, 26, 27, and 28, and on July 6, 7, and 8, 1948. The General Counsel, the Re-
spondent, and the Union were represented at and participated in the hearing.
All parties were afforded opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues.
At the beginning of the hearing, the Respondent filed an amended motion to
strike various allegations of the complaint. Argument was had on the motion to
strike, the amended motion to strike, and on the motion to dismiss, which were,
in ' due course denied. During the course of the hearing, upon motion of the
General Counsel, and over objection by the Respondent, the amended complaint
was further amended to reinstate the allegation that the Respondent had dis-
charged Norman, Murphy, Richards, White, Springfield, and Spears, for their
union membership and activities, in violation of Section 8 (a) (3) of the Act.
The Respondent amended its amended answer to deny all allegations of unfair
labor practices. At the close of the General Counsel's case motions by the Re-
spondent in renewal of its various prior motions to strike and dismiss were
denied without prejudice to renewal.
Opportunity was afforded for oral argument upon the record and for the filing
of briefs. Briefs were thereafter received from the General Counsel and from
the Respondent and have been considered.
In substance, the Respondent's various motions to strike and to dismiss the
amended complaint, and its objections to the further amendment of the complaint
during the hearing reinstating the prior 8 (3) allegations, and predicated on
Section 10 (b) of the Act, which appears for the first time in the 1947 amendment
to the statute. This section provides, in part, that
. . . no complaint shall issue based upon any unfair labor practice oc-
curring more than six months prior to the filing of the charge with the Board
J. H. RUTTER-REIX MANUFACTURING COMPANY, INC. 479
and the service of a copy thereof upon the person against whom such charge
is made ...
The Respondent's argument is somewhat complicated but, as I understand it,
is in essence that the issuance of the amended complaint constituted an abandon-
ment of the prior cause of action and was tantamount to the institution of a new
proceeding. Consequently, the contention runs, there was no existing charge of
8 (a) (1) and 8 (a) (3) upon which the amended complaint could have been
based. It is to be noted, however, that the 8 (a) (1) and 8 (a) (3) allegations
of the ultimate complaint had been the subject of a complaint issued prior to
the amendment of the Act. The amendment of the original complaint thereafter
did not, in my opinion, constitute a new cause of action, nor ipso facto preclude
further action on such matters contained in the original complaint as were not
reiterated in the complaint of April 14, 1948. I construe Section 10 (b) as being
inapplicable to matter which was contained in the May 5, 1947, complaint. In
addition, the Board has held that Section 10 (b) is to be given prospective, not
retrospective, effect, and that it therefore "imposes no limitation upon the is-
suance of complaints in any case in which the charges have been filed and served
within 6 months after August 22, 1947, the effective date of the amendments."
(The Electric Auto-Lite Company, 80 N. L. R. B. 1601; see also Olin Industries,
Inc., 86 N. L. R. B. 203; Union Products Co., 75 N. L. R. B. 591; Briggs Mfg.
Co., 75 N. L. R. B. 568; Barton Brass Works, 78 N. L. R. B. 431; Bewley Mills,
77 N. L. It. B. 774; Detroit Gasket and Mfg. Co., 78 N. L. R. B. 670; N. L. R. B. v.
Brozen, 166 F. 2d 812 (C. C. A. 2) ; N. L. R. B. v. Gate, 167 F. 2d 647 (C. C. A. 5) ).
As has been seen, copies of the charges upon which the 8 (a) (1) and 8 (a) (3)
allegations of the ultimate complaint were based had been served upon the Re-
spondent on May 6, 1947.
With respect to the 8 (a) (5) allegation of the amended complaint, the Re-
spondent contended that no finding of unfair labor practice can be made prior to
September 11, 1947, nor evidence of acts prior thereto used to establish the alle-
gation. No finding of violation of Section 8 (a) (5) prior to September 11, 1947,
is made herein. Section 10 (b) does not, however, as I understand it, prohibit
the consideration of facts necessary to the evaluation of equivocal conduct, re,
gardless of when the illuminating facts may have occurred.'
Upon the entire record in the case, and from my observation of the witnesses,
I make, in addition to the foregoing, the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
J. H. Rutter-Rex Manufacturing Company, Inc., is a Louisiana corporation,
with its office and principal place of business located in the city of New Orleans,
Louisiana , where it is engaged in the manufacture of clothing . In the course and
conduct of its business , during the year preceding the hearing , a representative
' The Respondent additionally contended that during the summer of 1947 It was in-
formed by , an employee of the Regional Office that the entire case would be dismissed
administratively without going to hearing , or that such action had been recommended.
The opinion or recommendation of a Regional Office employee does not, of course, consti-
tute an adjudication or final disposition of the Issues . Cf. N. L. R. B. v. Baltimore Transit
Co., 140 F. 2d 51 (C. C. A. 4), cert. den . 321 U. S. 495.
Several other contentions raised by the Respondent involving the question of the Union's
compliance with Section 9 (f), (g), and (h) of the amended Act are foreclosed by such
Board decisions as Baldwin Locomotive Work8, 76 N. L. R. B. 922, and Lion Oil Co., 76
N. L. R. B . 565, to the effect that compliance is an administrative , and not a litigable , issue.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period, the Respondent purchased cloth, thread, and other materials and supplies
valued in excess of $150,000, of which approximately 60 percent was transported
from points outside the State of Louisiana to the Respondent's plants in New
Orleans. During the same period the Respondent manufactured and sold finished
products, consisting of work shirts and work pants, valued in excess of $250,000,
of which approximately 75 percent was shipped from the Respondent's plants in
New Orleans to points outside the State of Louisiana.
II. THE ORGANIZATION INVOLVED
Amagalmated Clothing Workers of America is a labor organization affiliated
with the Congress of Industrial Organizations, admitting to membership em-
ployees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Summary of the issues
In March 1946, the Union began an organizational campaign among the Re-
spondent's employees; on June 4, 1946, it filed a petition for certification ; and on
September 13, 1946, a Board-directed election was held, in which the Union was
chosen by the employees as their collective bargaining representative. During
the union campaign company representatives made a number of speeches to
employees in the plant. In one of these speeches, made in May, the Respondent
announced the granting of a general wage increase. In two others, both given
prior to the opening of the polls on the morning of the election, the Respondent
announced another general wage increase and also the granting of paid vacations.
These speeches and the announcement of wage increases and vacations in Sep-
tember are alleged to have constituted unfair labor practices.'
During the period from August 5, 1946, to October 3, 1946, the Respondent
employed private detectives to patrol in front of its plant during working hours
at a time when union organizers were distributing literature and soliciting
employees outside the plant. This action is alleged to have been taken for the
purpose of spying upon union activity and preventing union solicitation.
During the period from June 7, 1946, to November 30, 1946, the services of the
six employees named in the complaint as amended were, terminated by the
Respondent, allegedly because of their union activity.
In addition, during the period of the union campaign, certain supervisors and
officials of the Respondent are variously alleged to have interrogated employees
as to union membership and activity, threatened them with discharge, threatened
to close the plant, prohibited union solicitation by employees, and to have
engaged in surveillance of a union meeting.
All these allegations of unfair labor practices are categorically denied by the
Respondent.
Following the election the Board dismissed objections filed by the Respondent
and certified the Union as the collective bargaining representative. In Febru-
ary and March 1947 four bargaining conferences were held between representa-
tives of the Respondent and the Union. However, no agreement was reached
over terms of a contract. From March 1947 until February 1948 efforts to
arrange other meetings were unsuccessful, for reasons which are disputed. The
General Counsel contends that the conduct of the Respondent's representatives
8 There is no specific allegation that the announcement of the May wage increase was an
unfair practice , although the speech in which it was announced is generally charged as a
violation of Section 8 (a) (1).
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 481
during the four negotiating sessions did not constitute bargaining in good faith
and that the failure to arrange further meetings thereafter is attributable to
evasive and dilatory tactics on the part of the Respondent. These allegations
are denied by the Respondent, which asserts that it at all times dealt with the
Union with reasonable expedition and in good faith.
B. The events
1. The speeches
The union campaign began in March 1946. From then until the election the
following September union organizers were intermittently in front of and in the
vicinity of the plant distributing union literature to employees or soliciting them
as they arrived and left the plant or as they congregated outside during lunch
or rest periods. At times the Union also employed the services of a sound truck.
So far as appears, the number of union organizers in the vicinity was never
more than two, and evidently usually only one, a Negro organizer named Ernest
Wright.4 Occasionally Wright would be assisted by either Bernades or Stark,
two white officials of the Union, who would contact the white employees and, at
times, by a sound truck stationed in the street. The actions of the organizers
were peaceful ; there were no apparent disturbances or threats of breach of the
peace. At times congestion of employees on the sidewalk in front of the plant
might have impeded egress and ingress, but it did not prevent it. While the
interest generated by the organizing activity and the distribution of union litera-
ture undoubtedly. must have contributed in some measure, it does not appear
that the congestion differed in substantial degree from that ordinarily to be
expected from the normal congregation of employees on the sidewalk during
lunch periods or before or after work.
In the period from April 1946 and continuing through September 1946, J. H.
Rutter, the Respondent's president, and William E. Shaack, its superintendent,
delivered a series of speeches in the plant to the assembled employees during
working hours." There is no conflict as to what was said by Shaack. The
speeches of Rutter, however, present a twofold problem. First is the question
as to what Rutter said. On this there is conflict between the witnesses for the
General Counsel and those for the Respondent. Second is the question, the
first being resolved, as to whether the utterances constituted unfair labor. prac-
tices. The questions will be considered in that order.
On much of what Rutter said the testimony is in agreement. The conflicts
are on three main points: (1) whether the speeches were read from prepared
manuscript, (2) whether Rutter said in any of them that he would close the
plant if the employees chose the Union to represent them, and (3) whether in
the speeches made on the morning of the election, in which he admittedly an-
nounced the granting of wage increases and paid vacations, Rutter conditioned
the receipt of these benefits on the employees voting against the Union. Em-
ployee witnesses for the General Counsel almost uniformly testified in the nega-
tive as to the first point and in the affirmative as to the second and third ; wit-
nesses for the Respondent testified uniformly to the contrary. Thus, according
to the General Counsel's evidence, all the speeches were made without manu-
4 Approximately 80 percent of the Respondent 's staff, which at the time of the election
was about 500, is Negro.
I In all there were 11 speeches , 8 by Rutter and 3 by Shaack . Rutter's were made on
April 26, May 10, May 27 , June 20 , July 26, September 6, and 2 on September 13, the day
of the election . Shaack's speeches were given on August 21, September 16, and Sep-
tember 27.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOAR1
script and contained the aforementioned threats; according to the Respondent's
evidence all the speeches were read and none contained any threats. Manuscripts
identified by President J. H. Rutter and Superintendent William E. Shaack as
copies of the speeches they delivered contain no such outright statements as the
General Counsel's witnesses testified to. A number of other witnesses, mainly
supervisors, corroborated Rutter's and Shaack's testimony to the effect that the
speeches were not extemporaneous and contained no threats of reprisal.
It is undisputed that drafts of speeches for delivery by Rutter and Shaack
were prepared by various of the Respondent's officials in collaboration with the
Respondent's attorneys, Samuel Lang and W. Gordon McKelvey. While it is
possible that Rutter may have disregarded these manuscripts, or may have (as
one witness testified), interpolated the threats described by the General Counsel's
witnesses, such a supposition requires the assumption of a rather unnecessarily
complicated and somewhat pointless deception. It seems more likely that the
speeches were delivered from manuscript, as the Respondent's witnesses testified,
and that the exhibits in the record are those manuscripts.' There was, however,
some basis in the prepared speeches, as will appear from the summaries of them
hereafter, for the conclusion of the employees, though I find it to be erroneous,
that Rutter threatened to close down the plant if the employees chose the Union.
The testimony therefore represents, in my opinion, not fabrication, but under-
standable confusion.
We turn now to a discussion of the speeches themselves. It appears from the
testimony of the Respondent's witnesses, which in this respect is credited, that
during 1946 the Respondent was encountering considerable trouble because of
production difficulties, specifically, poor workmanship and low individual output.
All the speeches adverted, in one fashion or another, to production. Many con-
tained pleas for better work and increased productivity. It is evident, however,
that many of the speeches were also a response to the union campaign. Such a
response is, of course, not illegal in the absence of threats of reprisal or promise
of benefit to employees. The production difficulties which the Respondent encoun-
tered were undoubtedly a matter of great concern to it, though it is by no means
clear that the situation was any worse in 1946 than it had been at any time in
the past. In sum, without minimizing the Respondent's difficulties or suggesting
that such a motive constituted unfair labor practices, it seems clear from the
circumstances and the speeches themselves, that in most of them production was,
at least in part, a vehicle for combating the Union and its campaign arguments.
No summary, of course, can convey with complete adequacy either the content
or the flavor of the spoken word, particularly where it has been adroitly chosen
and carefully phrased to take advantage of any force flowing from the relation-
ship between the utterer and the hearer, as well as from the intrinsic influence
of the word itself. Language is a vehicle for the transmission of ideas. As
such, it has no fixed and immutable value, and consequently "may vary greatly
in color and content according to the circumstances and the time in which it is
used." Towne v. Eisner, 245 U. S. 418. Likewise, a summary, selective and
-couched in paraphrase as it must necessarily be, may not do complete justice
to the speaker. Physical limitations, however, forbid the setting out of the
:speeches in full.
Two speeches made by Rutter on the morning of the election were made from an outline,
:and not read. Rutter and his secretary, however, identified verbatim copies of these two
speeches which the secretary testified she took down in shorthand as Rutter spoke. Al-
-though the General Counsel argues, in his brief, that this testimony is implausible, I see
mo ground for rejecting it in the absence of contradicting evidence.
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 483
In'-some of the speeches Rutter specifically adverted to the Union and an-
nounced his opposition to it. In almost all of them his remarks were coupled in
some way with warnings that employees might be laid off; that the plant might
be shut down ; and that employees who did not "cooperate" would be dis-
charged. He invited employees who were "dissatisfied" to seek employment
elsewhere. While assuring the employees that it was their privilege to join a
union, he said that he believed that continuance of the business would be impos-
sible if the Union came in, because of the interference that unions "generally
bring about." All of these assertions were tied in, however, in some way with
the question of production so as to avoid any outright threat of reprisal for
union activity. In a speech on September 6, 1946, a week before the election,
Rutter characterized the union officials as "parasites" and irresponsible, and
intimated that they might be thieves. Running throughout the speeches is the
recognition of employee grievances, promises that the Respondent would do
better in the future, and reiterated assurances of wage increases whenever they
could be given. More specifically, in a speech on April 26, 1946, Rutter announced
changes in the bonus system to meet employee complaints ; in one on May 10
be announced that he was raising the base rate of pay from 55 to 621/2 cents per
hour. Finally, on the morning of the election Rutter announced the granting
of further wage increases, and paid vacations in addition.
This latter announcement was made in two speeches, given before the polls
opened ; one to employees in the pants department, the other in the shirt
department. They were substantially identical in content. Unlike the preced-
ing speeches, however, these two were not read from manuscript. They were
made from an outline prepared by Rutter, and copied verbatim by his secretary
in shorthand, as he spoke. In' addition, these speeches were unlike the others in
that they were not submitted to the Respondent's attorneys for review before
delivery, for the reason, as Rutter testified, that there had not been "time
enough." In these he told the employees that he had been in contact by telephone
the previous night with his New York representative, who had advised him that
"for the first time in many years, he [was] able to write some contracts at some-
what higher prices." He was unable to give the employees many details, how-
ever. Thus he told the shirt department:
I don't know the details, so I can't tell you any details, except that it will
provide for a substantial increase in your base rate, the details of which
won't be known for a couple of weeks, at which time I will tell you.
Everyone here will have an increase and I think it will be a substantial
increase in your base rate which is now 621/2 cents per hour plus your bonus.
It will go up from there, within reason, so that I will still keep you in busi-
ness. [sic] You could not afford it before, but you can now, [sic] along
with the thought I have entertained since early summer, of providing a vaca-
tion with pay during Christmas week, which is our slack season, as you
know, rather than make you wait until next summer to put into effect. It
could not be afforded before. The details of this you will also know in a
couple of weeks when all of the information is in my hands on the new
contracts. It will be a vacation with pay to all employees during the
Christmas week.
The Union won the election. Three days after the election, on September 16,
Superintendent Shaack gave a speech in which he denied that the plant was now
a "union shop" ; assured the employees that the Respondent would not interfere
with their right to "belong to any church or organization" they chose; and urged
any of them who had voted for the Union in order to keep their jobs to report
the fact to him. There is no indication that any employees did so.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 18, 2 days later, the Union wrote the Respondent asking for a
meeting to discuss contract negotiations. On September 21 the Respondent ac-
knowledged this letter, saying, "The election is being protested by us and pend-
ing the outcome of our protest, your request for a conference will be held in
abeyance." A week later, on September 27, Superintendent Shaack gave a final
speech in which he announced the details of the wage increase Rutter had
promised on the day of the election. Shaack told the employees that their base
rate was being increased from 621, to 671,4 cents an hour ; and that the present
bonus system would remain in effect. As to the vacations, he said that they would
be given during the Christmas week and would amount to 2 percent of the indi-
vidual's total earnings during the preceding year. He asked for the employees'
cooperation and for greater production, and said that quality and production
were improving.
So far as the record discloses, this was the last of the addresses.
Conclusions as to the speeches
It is evident from a reading of the speeches that Rutter was concerned about.
production in the plant and that a substantial motive for them was to eliminate
that problem. It is also evident, however, as he frankly admitted in the speeches,
and indeed as he had a perfect right to, that.Rutter was opposed to the Union
and attempted to influence the employees against it. Unquestionably the produc-
tion difficulties were made a vehicle for the articulation of some of that opposi-
tion. The combination of the two subjects in the speeches could easily-and pos-
sibly it was so intended-result in confusion in the minds of some of the employees.
It might have been difficult, perhaps, for an alert and sophisticated person to have
been sure, under similar circumstances, whether Rutter's suggestions that the
plant would close and that the employees would be laid off or lose their jobs, were
threats or were, instead, objective predictions of consequences beyond the Re-
spondent's control ; in sum, whether it was production difficulty, union intransi-
gence, or mere union activity alone which would endanger the employees liveli-
hood. In manuscript form the addresses, when read and analyzed, leave no doubt
that it was to the former two possibilities that Rutter adverted. Under the
circumstances of their delivery, however, the meaning of the utterances may not
have been so unequivocal ; frames of reference could have escaped attention ; the
careful dichotomy of ideas obscured, instead of illustrated, by the language. It
is easy, then, to understand why some of the General Counsel's witnesses testified
that Rutter had said that he would close down the plant if the Union came in.
That is undoubtedly what they heard, even though it is not what Rutter said.
Some of Rutter's statements concerning the Union can scarcely be classed as
intellectual argument : such as the characterization of union officials as "para-
sites" and the suggestion that they might be thieves. It is not, however, my
function to pass upon the ethics or the indelicacy of the utterances, or even, as
I understand the law, the obvious psychological dropbacks which may have lent
them a force and effect quite apart from persuasion ; but only upon the reason-
able interpretation of what was said. The language of industrial combat is
often indecorous on both sides ; the impulse to answer polemic, real or fancied,
with diatribe, is no doubt at times irresistible. The right to free speech is not
to be circumscribed, however, because it is sometimes put to distasteful or even
odious use. Moreover, Section 8 (c) of the Act protects the expression or dis-
semination of views, argument or opinion, whatever their fastidiousness or vigor,
so long as they contain no threat of reprisal or force or promise of benefit.
An analysis of the manuscripts of the speeches quite clearly refutes the sug-
gestion that Rutter or Shaack threatened to close down the plant if the em-
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 485
ployees chose the Union, or promised benefits conditioned upon abandonment of
the Union. Nor is there in the speeches any other declaration to the effect that
union activity or designation would be met with reprisals in employment. It
is therefore found that the speeches contained no evident threats of reprisal and
in that respect were protected speech.
Not so, however, with regard to the requirement that the expressions contain
no promise of benefit. In the speech given on May 10, Rutter announced the
granting of a wage increase ; in the two given on the morning of the election he
announced further wage increases and the granting of paid vacations as well.
The Board has held in a number of cases that the award or announcement of-
wage or other benefits just before an election or at some other vital time in an
organizational campaign is a violation of the Act or constitutes sufficient inter-
ference to require the setting aside of an election. (See Magnolia Cotton Mill Co.,.
TO N. L. R. B. 91; Hudson Hosiery Co., 72 N. L. R. B. 1434, and cases cited therein.)
As the Board pointed out in the Hudson Hosiery case, supra, this does not mean
that an employer :
is foreclosed from announcing or granting economic benefits during a union
organizational campaign or during the pendency of a Board-directed elec-
tion. What is unlawful under the Act is the employer's granting or announc-
ing such benefits (although previously determined upon bona fide) for the
purpose of causing employees to accept or reject a representative for col-
lective bargaining.'
Among the Union's campaign arguments in the instant case was that it would
secure wage increases for the employees. Various of Rutter's speeches between
April and September took note of this argument, answered and countered it with
promises of increases as soon as he was able to make them. It cannot be seriously
controverted that these promises were, if not motivated, at least stimulated, by
the union campaign, and by the desire to combat it. They were therefore, despite.
the vagueness of their anticipation, promises of benefit designed to forestall the.
Union. As the Board said in the Hudson Hosiery case, supra, "we can perceive
no logical distinction between threats to withdraw economic benefits, for the pur-
pose of thwarting self-organization of employees, and promises of better things
to cone, for the sane objective." (Emphasis supplied.) There was no such
indefiniteness about the May 10 increase, however. The speech of that day was
an announcement that the increase had been granted effective the following week.
Inasmuch, however, as the complaint does not specifically allege the promises
and announcements in the various speeches (other than the announcement on the
morning of the election) to have been unfair labor practices, no finding of violation
is made thereon. Since the speeches contained promises of benefit, however, they
are not within the protection of Section 8 (c).'
The announcement of the wage increases and vacations on the morning of the
election, however, are specifically alleged to have constituted unfair labor prac-
tices. The timing of the announcement, and its obvious haste, permit no reason-
able conclusion other than that it was made to influence the employees in voting
later in the day. The juxtaposition of events alone making out a strong prima
7 Cf. for example, Exposition Cotton Mills Co., 76 N. L. R. B. 1289, where a vacation
plan announced at a time when there was no evidence of union activity was held not to be
a violation of the Act.
8 The complaint does allege in general terms that the Respondent violated Section 8 (1)
by "Making anti-union speeches in the plant," an allegation which, while adequate to bring
the speeches within the issues of the evidence, is hardly sufficiently informative to warrant
specific unfair labor practice findings upon.
867351-50-vol. 86-32
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facie case for that conclusion. Rutter, in fact, made no denial that such was his
intent. His testimony as to how the announcement Caine to be made is as follows :
I guess about two, maybe three weeks before the election I sent our
Mr. Jelinek, who is my immediate assistant and sales manager of our busi-
ness, to New York with specific instructions-and the middle west-to
endeavor if possible to get a better price for our product, which we hadn't
been able to accomplish for quite some time due to the frozen conditions
that existed in businesses like ours. Customers were very reluctant to have
the selling prices raised for any reason. And I instructed Mr. Jelinek to
endeavor to secure better prices for our product so that we could attract a
more efficient type of operator into our plants to see if we couldn't possibly
stem the tide of the tremendous quality trouble that we were having, that we
were sweating through. We had hopes that if that could be accomplished,
that we could afford a raise in wages and possibly afford a vacation with pay.
Q. And when did Mr. Jelinek get in touch with you and let you know what
the effect of his trip had been?
A. Well, I was in frequent contact with Jelinek, or he with me. It is the
very nature of our business. He called me, I think it was the night before
what proved to be the election clay and told me that he was somewhat
successful along the lines that we had planned and outlined. So the next
morning when I came to work I made the separate talks to the plant from
an outline, which wasn't a prepared speech. I hadn't had time enough or
wasn't forewarned enough in order to have it prepared by Mr. Lang or
Mr. McKelvey.
Although several minor factors cast some doubt on this explanation, never-
theless I consider it to be truthful. The very haste in which the action was taken,
the failure to have the plan reviewed by his attorneys, and the vagueness of the
information conveyed to the employees, all indicate that the developments which
had enabled Rutter to make the announcement had broken fast, and very recently.
At the same time, these factors provide further evidence that the announcement
was in fact made in order to head off the Union. Rutter could not tell the
employees how much the increase would be. As he said, he did not even "know
the details" as to how favorable the new contracts were, and it would take several
weeks before he could give the employees any further information. Nevertheless,
despite the paucity of his own information on which to base cost factors, Rutter
was able, in an industry which, according to the Respondent's testimony, oper-
ates on a close-profit margin, to announce "substantial" wage increases and
vacations with pay. It is also to be noted that several months later, when the
Union requested wage increases, the Respondent replied (and no doubt truth-
fully) that not only was it unable to grant increases, but that it might even have
to decrease wages in order to stay in business. The contrast is significant.
It seems incontestable on these facts, and it is found, that flutter's announce-
ments of the wage increases and vacations on the morning of the election were
promises and grants of benefit made for the purpose of influencing the employees
to vote against the Union. The coincidence of the Respondent's ability to make
the increases at the particular time does not affect the conclusion. As the
Board said in the Hudson Hosiery case, supra:
. We are mindful that, in this case, the wage increases announced in the
letter of January 28, 1946, as well as the War Labor Board application
referred to in the bulletin of March 30, 1945, were the product of general
economic conditions and of business policies of the Respondent unrelated to
the Union's organizational drive, and we do not condemn either the February
1945 application to the War Labor Board or the December 1945 decision to
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 487
increase rates, per se. The vice of the Respondent's conduct is that in each
-instance it so timed its initial announcement to employees as to insure that
the forthcoming raises would directly affect their decision on the issue of
union representation. In both instances this result could readily have been
avoided and was not a necessary incident of the Respondent's economic
decision to increase wages.
It is found that by the announcements of the wage increase and vacation plan
,on September 13, 1946, the Respondent interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act.
The no -solicitation rule
On August 21, 1946, following the discharge of employees Richards and Murphy
(whose cases are discussed hereinafter) for soliciting names and addresses of
employees, Superintendent Shaack gave a speech in the plant in which he called
to the employees' attention a company rule forbidding solicitation.' Additionally
Shaack instructed the employees not to give their names or addresses to any
other employees, warning them that any employee who solicited such data was
subject to discharge.
A plant rule prohibiting union solicitation on an employee's own time is pre-
sumptively illegal, in the absence of special circumstances. (Peyton Packing
Co., 49 N. L. It. B. 828; Republic Aviation Corp., 51 N. L. R. B. 1187, affd. 324
U. S. 493.) No adequate special circumstances are evident here. Shaack testi-
fied, however, that the rule is applicable only to working time.. As thus inter-
preted and applied it is a valid rule. While it is to be noted that neither the
rule nor Shaack's speech makes this distinction clear, I see no reason to ques-
tion Shaack's interpretation. However, a clarifying statement to the employees
by the Respondent will avoid any ambiguity and possible future misunder-
standing.
2. The discharges
The complaint, as amended, alleged and the. Respondent denied, that between
June 7, 1946, and November 30, 1946, the Respondent discharged the following
.named employees because of their union activity : Audrey Norman, Marie Murphy,
.Dora Nella Richards, Creasie White, Minnie Lee Springfield, and Gertrude Spears.
All were union members and variously active ; Spears, for example, was the union
:president. Although some of the Respondent's witnesses connected with the
-discharges, such as Superintendent Shaack and Supervisor Bellou denied having
knowledge (except in the case of Spears) that any of these employees were
union members, I deem this assertion improbable. Supervisor Padel, more can-
-did, testified that "we are pretty close to our people. We know what is going on."
a. Audrey L. Norman
Norman testified that about May 23, 1946, she was injured at work and sent
to a doctor, who treated her a total of seven times between that date and June 7.
'On the latter date she returned to the plant, according to her testimony, where
she was questioned by the Respondent's personnel manager, J. E. Rutter," about
the Union, and ultimately told by Rutter that she -was no longer needed because
.she was "a union member and all for the Union and we can't use you."
° Rule 29 :. "No employee Is allowed to distribute any advertising pamphlet or posters,
:nor sell tickets on games of chance, lotteries, etc. Soliciting of any kind is prohibited."
10 Not to be confused with J. H. Rutter, the Respondent's president.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Norman's testimony is not, however, very reliable. As the Respondent sums.
it up in his brief, the record demonstrates that she was "mistaken in every
material aspect of her testimony." The testimony of the doctor who treated her,.
as well as documentary records respecting her treatment, disclose that the injury
occurred on June 5, not in May. Norman was treated twice, on June 6 and
June S. The injury was minor and she was discharged from further treatment
after the latter visit. The medical testimony is that she should have lost no
time whatever from work. Nevertheless, the evidence establishes that Norman,
did not return to work until June 24. There is no explanation for the 16-day
period between June S and 24. When she returned on the 24th her place had
been taken by someone else, the Respondent having assumed that she had quit..
She was told that there was no job for her. Norman thereupon filled out a
termination slip in which she gave as reason for the termination "not coming to
work."
In the light of these facts I credit J. E. Rutter's denial that he made the
statement attributed to him by Norman, and can find no persuasive basis for
concluding that she was discharged because of her union activities.
b. Marie Murphy
and
Dora Nella Richards
Murphy was discharged on August 19, Richards on the following day. Murphy
and Richards sat near each other in the same line. Murphy was admittedly any
efficient operator and a high producer-in sum, the very type of operator Rutter
stated in his speeches he was anxious to secure and to retain. On August 19 both,
women passed around slips of paper among the women in the adjacent working:
area, asking the employees for their names, addresses, and telephone numbers.
This was one month after a Board hearing had been held on the Union's petition
for certification, and some 10 days before the Board handed down a decision
directing that an election be held. It is obvious from the circumstances that
Murphy and Richards were attempting to secure the information for union cam-
paign purposes. Richards' testimony candidly admits that. I am unable to
accept Murphy's testimony that she wished merely to get the names of friends to
whom she could write while on a vacation which she was at that time considering
taking. Murphy was discharged on August 19, Richards on the following day, for
the stated reason that they had solicited in violation of company rules. Both
denied on the witness stand that the solicitation took place on company time,
Murphy asserting that hers was done outside the plant. Richards, while ad
mitting that she did her soliciting in the plant, testified that it was done before
beginning work on the morning of August 19. Witnesses for the Respondent, Su-
perintendent Shaaek and Supervisor Bellou, testified without denial, however,.
that both women, while giving differing reasons for the solicitation (Murphy
in order to be able to write to her friends, Richards to get a list of persons to whom
to send wedding invitations), admitted when they were discharged that the
solicitation had occurred during working hours. The testimony of Shaack and
Bellou on this point is credited. The evidence establishes that on August 19, the
day she admittedly did the soliciting, Richards did not enter the plant until
8:1.8 a. in., 18 minutes after work began. It Is found that the solicitation by
Murphy and Richards occurred inside the plant and on company time.
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 489
Plant rule 29, prohibiting solicitation of any kind, and Shaack's interpretation
of it to apply only to working time, has already been adverted to, supra. Although
there is evidence that on infrequent occasions collections for charitable causes
are taken among the employees under the supervision of management, there is no
evidence that solicitation is generally tolerated. There is therefore no sub-
:stantial ground for finding discriminatory enforcement of rule 29. While I am
not persuaded as to the complete candor of Shaack's denial that union activity
had anything to do with the discharges, or of his explanation that his only concern
over the solicitation was lest other manufacturers "pirate" his operators, I find
that Murphy and Richards engaged in union solicitation during working hours,
.and that their discharge for such action was not improper.
c. Creasie White
Creasie White was discharged on September 9, 1946. According to White's
testimony she was discharged after being wrongfully accused of throwing water
on completed garments as she returned from the drinking fountain. It is con-
ceded that water spots will make a garment defective. Plant rules forbid drink-
ing near clothes. J. H. Rutter testified, contrary to White, that as White left the
-water fountain he saw her empty the remaining contents of her glass on garments
hung on a nearby chair. Rutter thereupon discharged White himself. Four days
later, in his speech on the morning of the election, Rutter pleaded with the em-
ployees to keep water away from garments and stated that he had discharged
White for sprinkling water on completed work.
The spontaniety of the discharge indicates Rutter's belief as to what he asserted
White had done. It is admitted that immediate inspection disclosed water
:spots on the garments. It seems likely then, that regardless of whether White's
action was deliberate or inadvertent, Rutter's testimony is accurate. It is there-
fore credited, and it is found that White was discharged for sprinkling water
,on garments.
d. Minnie Lee Springfield'
Springfield became ill in August 1946 and was absent from work for about a
-week after, according to her testimony, telephoning the plant and asking an
unidentified person to notify her supervisor, Bellou. When she returned to work,
:according to her account, J. E. Rutter, personnel manager, asked why she had
not been at work. When she explained that it was because of illness, Rutter
expressed skepticism, and, after conferring with Bellou and Superintendent
Shaack, told Springfield that they had no further work for her. Springfield then
Complained to the Union, which sent her to the Board's Regional Office, where
she was directed to return to the plant and ask for employment. Springfield
did so and was promptly hired by Supervisor Padel. According to Springfield's
testimony, Padel told her that she was a good worker and that if she would come
to work regularly she would be given another chance. Padel further said,
:according to Springfield, that
Some of the girls are trying to get a union started in the factory and
some of them have been fired. I don't know whether you had anything to
do with it, but if you do, that is your business. Mr. Rutter will not have a
union in the factory. °
T'adel, who, in general, impressed me as being a trustworthy and reliable witness,
while admitting that she had told Springfield that she would be given another
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chance, denied having made the other statements attributed to her by Spring-
field. I find this denial credible.
With respect to the circumstances of the hiring, Padel's testimony was as
follows : She testified that she saw Springfield in the employment office on the
morning the latter applied for employment, recognized her as a former employee,
and being in need of an operator, questioned Springfield as to her experience.
Padel then asked Bellou, Springfield's former supervisor, as to the quality of
Springfield's work and her attendance habits. Bellow, who was also Padel's
superior, told Padel that Springfield's work was not up to standard but that she
had no objection to Padel's hiring her if Padel thought that she "could do any-
thing with her." Padel then hired Springfield, told her what Bellou had said,
and proceeded to retrain her.
Springfield worked about a month before she was discharged. The circum-
stances of the separation are not in material dispute. On the day of her dis-
charge Springfield was summoned to a table in the plant, and shown a bundle
of work by Shaack and Padel " which she had just completed and which was
defective. Springfield admitted the fact and was thereupon discharged. Her
testimony is that during the conversation Shaack accused her of spoiling the
work deliberately on account of the Union. This was denied by Padel and Shaack.
The actual fact does not seem to be material.
Padel's explanation of the discharges is simple and plausible. She testified
that she attempted to retrain Springfield without success. As Padel put it :
We put her in the line and I went. all over the process of re-training this
operator from the needle up. I went through the motions. I could not
make her a pocket setter. She did, while I was with the girl, nice work.
I kept trying to break her in, but she would go ahead and make this stuff
bad again.
In sum, while Padel was. with her, Springfield produced good work, but
when left alone her work was defective. The incident which precipitated the
discharge was, according to Padel, Springfield's attempt to pass along a bundle
of improperly made garments after Padel had directed her to do them over.
Padel testified as follows :
Well, one day I stepped up to her machine to examine her bundle of work,
and it was bad. So I told her she would have to repair that bundle of work,
it could not go into process, it was very bad and unusable. She told me
all right, she was going to go ahead on it.
Q. She was going to do it over?
A. She was going to do it over. I came back later and I found the bundle
had been moved and put into process as it was and the next bundle she
was working on was just as bad. So at the time when I happened to stop
there I saw Mr. iShaack coming down the aisle and I told him it was time
we get rid of the girl, I did not think that her work was what he wanted.
. . He spoke to the girl and let her go.
The employees work on an incentive system based upon the production of
acceptable garments. The repair of defective work thus reduces the amount
of premium pay. As has been seen, Springfield admitted that the bundle was.
defective. Her Testimony, however, is that she had intended to do it over.
" Springfield testified, that J. E. Rutter was also present. The testimony of Shaack,
,Padel, and Rutter is to the contrary. Springfield was probably mistaken.
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 491
But it is to be noted that Springfield's testimony discloses, consistently with
Padel's, that she was called from her place of work to a table on the side of
the building, at which place she was shown the defective bundle. Springfield's,
testimony does not disclose how the bundle found its way to that place from
her work station. Its presence there, without other explanation, is consistent
with Padel's assertion that the work was passed on by Springfield as completed,.
and inconsistent with the latter's testimony to the effect that she intended to
rework it. Padel's version is the more plausible under the circumstances. It
is therefore accepted, and it is found that Springfield was discharged for failing
to repair defective work after being instructed to do so, and for passing it
along into production instead.
e. Gertrude Spears
Spears was president of the Union. She was laid off on September 10, 3 days.
before the election. Spears then reported to the Regional Office of the Board
that she had been discharged. Following some discussion between Acting
Regional Director Slyer and Superintendent Shaack, Spears returned to work.
on September 18, only to be discharged on November 30, 1946, following involve-
ment in an altercation in the plant with another employee known as "Pink Anna"
Casey.
Spears and Casey had known each other for some 7 or more years. When.
Spears was hired, around January 1946, Casey was already working in the plant.
There was animosity between Spears and Casey antedating their employment
and arising out of personal matters unrelated to their work, which are suggested
in the record but which it is unnecessary to detail here. Within a week after
Spears had been hired there was an incident between the two in the course of
which, according to Spears, Casey brandished a shoe at Spears. A supervisor
interposed and ordered them back to work. Some months later, when Supervisor
Padel was attempting to work out a seating rearrangement, she was warned by
Casey not to seat her near Spears because of the feeling between the two.
In the altercation on November 30, following which both were discharged,
Casey threw an apple at Spears and then advanced upon her with an open knife.
The events which immediately preceded this incident are not altogether clear,,
mainly because of Spears' reluctance to testify as to them. Thus, Spears at first
insisted that she knew of no motive whatever for Casey's actions. She later
admitted that there was bad feeling between the two. As nearly as can be recon-
structed from the at times fragmentary evidence, however, it appears that the-
animosity between Spears and Casey had received impetus in events which had.
occurred that morning outside the plant. After starting work the two kept the.
feud simmering by the transmission of messages, no doubt provocative, to each
other. These messages were carried back and forth between Spears and Casey,.
who sat about 20 feet apart, by a third employee. At some point in these proceed-
ings Casey must have become infuriated by one of Spears' messages. She hurled.
an apple at Spears, which the latter fended off. Casey then rushed to her purse,
took out a knife variously estimated at 5 to 8 inches in length, and advanced on.
Spears. The latter, apparently undaunted, moved forward, unarmed, to meet her.
The plant was in an uproar. Women screamed, supervisors and male employees
rushed to the scene. As Casey advanced toward Spears she was seized by one of"
the men and disarmed, and a supervisor grabbed Spears. They were taken to the
office, told that they had violated plant rules by carrying personal fights into the-
factory and both were discharged. The girl who had carried the messages=
between the two was also discharged for her part in the affair.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plant rules forbid the carrying of personal grievances into the factory. In
addition the Respondent contends that its unvarying policy is to discharge all
participants to a scuffle in the plant, regardless of who provoked it. The equity
of such a procedure need not be inquired into here. It may be that if all the
antecedent facts were known, Spears did not give Casey adequate provocation for
so violent an outburst. But it is plain, though Spears denied it, that Spears had
been sending messages to Casey during working hours. These messages were
obviously a precipitating factor in the incident. Wholly apart from the rule for-
bidding it, Spears' conduct in thus carrying her personal animosities onto the
work floor, constituted adequate ground for her discharge. There is no substan-
tial ground for inferring that the incident constituted a pretext for Spears'
discharge.
I have not overlooked the laying off of Spears several days prior to the election
and her subsequent rehiring after the Board had intervened. Unexplained, that
conduct would be suspicious. Supervisor Padel, whom I credit, testified without
contradiction, however, that Spears had voluntarily told her that she was unable
to keep up with the line on the type of work she was then doing. Padel then told
Spears that there was no other job at that moment to which she could assign
Spears, but that she would find one and that Spears should go home and return
the following Monday, September 16, by which time Padel would have something
for her. Superintendent Shaack's testimony, likewise uncontradicted, is that
when Acting Regional Director Slyer spoke to him (on the day of the election)
concerning Spears, he (Shaack) informed Slyer that Spears had not been dis-
charged, but, on the contrary, had been instructed to return to work. When
'Spears did not return on Monday, Shaack phoned Slyer about her, and 2 days
later, Spears came back. Were there controversy over Padel's testimony, it might
seem implausible that Spears would complain of being discriminatorily dis-
charged under the circumstances related by Padel and Shaack. Their testimony
.is not disputed, however, and upon such a posture of fact, I am not prepared to
find Spears' lay-off to have been improper.
3. Other alleged interference
a. The private police
The complaint alleged that the Respondent employed a detective agency to
"spy on and prevent union activities and solicitation within the vicinity of the
plant."
Beginning on July 1, 1946, the Respondent secured the services of two city of
New Orleans policemen to patrol the sidewalk in front of its plant during work-
ing hours. On July 1, Shaack in a speech to the employees made the following
.announcement with respect to the policemen:
Because a number of our employees have complained to us recently about
their inability to leave the factory easily at noontime and evenings, starting
today there will be two policemen stationed near our building to prevent
anyone from being molested unnecessarily. It will be perfectly in order for
any employee to report any molesting to one of the policemen or to your
supervisor.
The record is barren of any evidence of "molesting." As has been found here-
tofore, the union solicitation carried on on the sidewalk in front of the plant
was wholly peaceful and there were no threats or disturbances. So far as the
record discloses, there were at no time more than three union organizers outside
the plant, and usually only one. It seems likely, however, that the activities of
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 493.
these organizers and the interest they probably generated, may have resulted in
an increase in what must, even under normal circumstances, have been high
congestion on the 9 foot 9 inch sidewalk during shift changes and lunch hours.
The testimony of the Respondent is that it sought police protection because it.
learned that one of the union organizers had a "criminal record," and that it
wished to prevent trouble.' The city policemen were evidently there for about
a month. No trouble occurred. Finally, however, they were withdrawn by the-
city. There is neither allegation nor evidence to the effect that these officers
interfered with union activity or that in securing them the Respondent was
actuated by anti-union motives.
The Respondent then hired a private police agency, Lehon's Protective Service.-
According to the testimony of the Respondent's vice president, R. V. Jelinek,.
who arranged for this hiring on behalf of the Respondent, and L. P. Schultz,.
Lehon's manager, who acted on behalf of Lehon, Lehon was hired to guard the
Respondent's property and to keep the peace in front of the plant. Jelinek fur-
ther testified that an additional reason for his action was that there were rumors-
of an impending strike at that time. Both Jelinek and Schultz denied any intent
to spy upon or to interfere with union activity. Their testimony is that no
reports were requested by the Respondent or made by Lehon and that the Re-
spondent gave the operatives no instructions. While, as has been seen, there
was little apparent reasonable basis for apprehending breaches of the peace, I
am unable to say that Jelinek's and Schultz's testimony, although, of course,
largely impossible of direct contradiction, is circumstantially so implausible asp
to require its rejection.
Lehon began to patrol the sidewalk in front of the main plant and at an
auxiliary facility known as the Delachaise plant," on August 5 1946, and con-
tinued through October 3. This was presumably the period of the most intense
union activity. The evidence as to specific conduct by Lehon's operatives is
confined to the main plant. Two men were maintained there from August 5 to
August 9, and from September 30 to October 3. Between August 9 and Septem-
ber 30, there was only one operative, except for September 13, the day of the
election, when the number was increased to five. The record does not disclose
the reason for the reduction in force on August 9 nor for its increase on Sep-
tember 30.
The evidence that these operatives, who were uniformed and presumably
white men, interfered with the union activity is based upon the testimony of
Organizer Ernest Wright. Wright, a Negro, testified that on one occasion one
of the officers told him that he was not supposed to interfere with the girls, that
he should "keep walking" and not "stop and talk too long" to the employees, other-
wise he would be arrested. On the day of the election, according to Wright,
some of these officers told employees not to talk to Wright, and said that he
would "get them in trouble."
So far as the record discloses, the patrolling did not cause any diminution of
Wright's activity. Wright himself seems not to have been very impressed by
11 One of the organizers had in fact pleaded guilty to a charge of unlawful assault and
wounding ( apparently a misdemeanor ) in May 1941 and served 2 months in the County
Prison. He testified that the charge arose out of a labor dispute, that he was not guilty,
but had been persuaded to plead in order to save others who were involved from peni-
tentiary sentences , and upon the understanding that he would be given a suspended
sentence.
13 The Respondent has several buildings at other locations . All the important action
took place , however, at the main plant.
-494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,the officers ; he told the man to whom he talked that they had no right to inter-
fere with him. Significantly, the relationship between himself and the operatives
'was friendly. Wright testified that :
There was a friendly relationship between Lehon's and between the organ-
izers because they felt that the Company just had them out there to frighten
us away, as a matter of fact, they told us that.
There is no evidence that any of the other union organizers were interfered
-with by the operatives ; nor, apparently, were any of the employees who at
times distributed literature on the sidewalk. Although the Lehon men were at
-the plant over a period of a month, there is no evidence that the Union made any
complaints to the Respondent, to the local police, to the Lehon Agency, or to
anyone else, a result normally to be expected if the conduct was causing the
Union concern.
- On the basis of the apparently isolated statements testified to by Wright, I
•am unable, in the context of circumstances described above, to conclude that
The Agency was hired to spy on and prevent union activity in the vicinity of the
plant.
b. The Gertrude Buddy incident
The General Counsel- contended that Gertrude Buddy, a supervisor employed
by the Respondent, engaged in surveillance of a union meeting.
The evidence upon which this allegation rests is the testimony of Buddy,
who was called as a wittness by the General Counsel and who denied having
.engaged in surveillance.
Buddy's testimony is that she understood that supervisors were welcome at
the meeting, and that accompanied by her husband (not an employee) she went
-to a union meeting on the night of September 12, 1946, because she was "curious."
When she and her husband arrived at the meeting place, however, they noted
from the outside that it appeared to be crowded and that people were already
standing up. They did not go in but stood around on the sidewalk near the
entrance for 10 or 12 minutes. As they stood there a number of employees
;passed through the entrance and went into the hall. Finally, after 10 or 12
minutes of apparent indecision, Buddy and her husband decided not to go into
the meeting. Instead they walked down the street and went to a movie.
Buddy's actions reflect either a singularly crude attempt at surveillance or
intimidation of employees attending the meeting, or else a considerable naivete.
My judgment, based upon observation of Buddy and the circumstances of the
incident is that she was not intent upon espionage and that, however naive she
may have been, her motive in deciding to go to the meeting was merely irrelevant
.curiosity. What the result would have been had she actually attended is un-
necessary to determine. It is found that Buddy did not engage in surveillance.
c. Miscellaneous statments
At around the time the union campaign began, the Respondent's supervisors
-were instructed by their superiors that, while they would not be forbidden to
-express their own opinions, they should not make any statements to employees
with regard to the Union which could be construed as expressing the Respond-
•ent's views. Nevertheless, several statements attributed to supervisory personnel
were alleged by the General Counsel to constitute interference, restraint, and
coercion of employees. Some of these have been discussed heretofore and
.disposed of. The remainder were as follows.
J. H. BUTTER-REX MANUFACTURING COMPANY, INC. 495
Audrey Norman testified that Supervisor PacTel took her into a rest room about
May 1946 and questioned her about the Union; that Norman admitted member-
ship in it and that Padel then asked Norman to give her the names of other
employees who had joined the Union. According to Norman, Padel concluded
with the statement that Norman had been a "good worker,".and that if she
would continue as she had been doing, Padel would "forget about the whole
incident."
Marie Murphy testified that in May 1946 Padel told her in substance that she
(Murphy) was doing so well that she would not benefit by joining the Union.
Minne Lee Springfield testified that at the time Padel hired her in August
1946, Padel told her that "some of the girls are trying to get a union started
in the factory and some of them have been fired. I don't know whether you had
anything to do with that or not but if you did that is your business. Mr. Rutter
will not have a Union in the factory."
Padel , in substance , admitted the truth of Murphy's testimony , but there is no
. apparent threat of reprisal or promise of benefit in the opinion there expressed.
As to the statements attributed to her by Norman and'Springfield, Padel denied
them categorically . As has been indicated heretofore , Padel, in general , impressed
inc as a trustworthy witness. She testified further that Norman had never worked
,under her and that she had never talked to Norman about anything. Other
evidence indicates that Bellou , and not Padel, was Norman 's supervisor. Nor..
man has been found heretofore to have been mistaken in material aspects of her
testimony . Padel 's version of the hiring interview with Springfield has already
been accepted with regard to other aspects of the case . Springfield 's testimony
that she had intended to repair the defective bundle has been rejected in view of
the fact that the bundle had already been passed on by her as completed work.
Under these circumstances I am unable to find, in view of Padel's denial,
that Padel made the remarks attributed to her by Norman and Springfield.
Tessie Mae Boseman, a witness for the General Counsel, also testified without
denial that Louise Esperon, a former supervisor, told her on September 12, 1946,
the day before the election, that she had seen Boseman having her picture taken
with Organizer Wright, and expressed a wish to see the print . According to
Boseman, Esperon then added , "I would hate to have you leave us and lose your
Job because Mr. Rutter says he is definitely going to close the plant if the Union
comes into the plant ." Boseman further testified that on an earlier occasion,
5 months before , Esperon had told her that since she looked like a bright girl
Esperon would leave it to Boseman's "intelligence" as to whether she should join
the Union . Whatever interpretation is to be placed on these alleged statements,
they appear to be isolated remarks in violation of the Respondent's instructions,
.and no finding is made upon them.
4. The refusal to bargain
a. The appropriate unit
The complaint alleged, and the answer denied, that the following employees of
the Respondent constituted an appropriate unit :
All production and maintenance employees , including shipping depart-
ment employees , but excluding all office and clerical employees , line opera-
tors, mechanics , supervisors , floorladies , and all other supervisory employees
with authority to hire, promote , discharge, discipline or otherwise effect
changes in the status of employees , or effectively recommend such action.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
On August 29, 1946, following a hearing in which the Respondent participated',
and held after the Union had filed its petition for certification as collective bar=
gaining representative; the Board, by Decision and Direction of Election, found
the above-stated unit to be an appropriate one for collective bargaining and'
directed that an election be held therein.
In the instant hearing no evidence was offered in support of the denial in the.
answer as to the appropriateness of the unit. At the representation hearing,.
the Respondent took no position with respect to the unit. In its brief to the
Board following that hearing, however, it urged the appropriateness of the unit
which the Board ultimately found to be appropriate 14 This issue having been.
decided by the Board in conformity with the Respondent's own expressed posi-
tion, it is found that the unit set out in the complaint constitutes a unit appro-
priate for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
b. The Union's majority
The election was held on September 13, 1946, and was won by the Union..
The results were as follows :
Number of eligible voters----- 486 Valid votes counted______________ 396:
Total number of ballots cast-- 407 Votes cast for the Union__________ 270
Challenged ballots___________ 11 Votes cast against the Union_____ 126
Following the election the Respondent filed objections to the conduct of the
election, in which it alleged electioneering, coercion, and intimidation of em-
ployees by union representatives outside and within a short distance of the
Respondent's. plant, in violation of the Regional Director's rules for the con-
duct of the election." These objections were accompanied by affidavits from
witnesses detailing the occurrences upon which the objections were founded.
Thereafter the Regional Director issued a report, pursuant to the Board's
Rules and Regulations, in which he stated that he had investigated the objections
and found them to be without merit. Exceptions to this report and a request for
hearing on the objections were filed by the Respondent. On November 1, 1946;.
the Board issued a Supplemental Decision and Certification of Representatives
in which it considered the objections and exceptions and found that they did not
raise substantial or material issues with respect to the conduct of the election
or the results thereof. With regard to the Respondent's request for hearing the
Board stated the following :
Inasmuch as we have assumed as true the Employer's allegations regard-
ing the statements and conduct of the Petitioner's representatives and
found that they do not warrant the setting aside of the election, we hereby
deny the Employer's request that a hearing be held on the issues raised in the
objections.
14 The unit originally petitioned for by the Union differed to some extent from that which
the Respondent ultimately urged as (and the Board found to be ) appropriate. As the
Board noted in its Decision and Direction of Election , however, the Union amended its
request during the representation hearing to conform to the position ultimately taken by
the Respondent . The Respondent contended , in its representation brief, that the Union's
petition was not formally amended to conform to this unit and hence should be dismissed.
This contention , substantially reiterated in the answer in the instant case, was necessarily
decided adversely by the Board when it directed the election.
w It will be recalled that in his speech of September 16, 1946, Shaack had urged em-
ployees who had voted for the Union in order to keep their jobs to report to him. There
is no indication that there were any such employees.
J. H. RUTTER-RFIX MANUFACTURING COMPANY, INC . 497
On November 12, 1946, the Respondent filed "Further Exceptions, Motion for
Reconsideration, and Request for Leave to File Brief." On November 27, 1946,
this motion and request were denied by the Board.
In the instant hearing the records of the representation proceeding were put
in evidence. Those records include, among other things, the Respondent's
objections to the election, the Regional Director's report thereon, the Respond-
ent's exceptions to that report, the various affidavits upon which the objections
were based, and the Respondent's Motion for Reconsideration, referred to above.
In the instant hearing the Respondent sought to introduce the testimony of some
of the affiants to establish the truth of the assertions in some (but not all) of
the affidavits ; the Respondent's position being that it was entitled to do so as a
matter of due process, the Board having previously denied it a hearing thereon,
This testimony was excluded.
Whatever its substance, the issue thus raised by the Respondent has been
expressly decided by the Board, and the Trial Examiner is without authority
to review that action. Apart from such consideration, however, I find no merit
in the Respondent's assertion that it was deprived of due process. The Respond
ent submitted to the Board the facts it asserted it could establish. These the
Board accepted and examined, but found insufficient to state a cause of action.
They did not, the Board found, warrant a finding that the election was defective.
The denial of an opportunity to establish those facts testimonially did not con-
stitute a deprivation of hearing, under the circumstances, any more than if
the Respondent bad been a litigant whose claim was quashed upon a demurrer.
Had any material factual issue been raised, the Board would no doubt have
ordered further formal action. There was none, however, once the Board had
accepted the Respondent's version as to what took place. The correctness of
the Board's judgment as to whether the pleaded facts presented substantial or
material issues with respect to the Union's representative status, is a question
of law which the Respondent may still raise before the Board for its recon-
sideration, or, doubtless, in other appropriate fora. So far as the Trial Examiner
is concerned, however, the Board's disposition constitutes the law of the case.
In any event, if there were any denial of due process involved originally, it
was cured in the instant proceeding. The Respondent was therein provided
with an opportunity to present evidence on material issues. Its affidavits were
received in evidence. The General Counsel does not contest the correctness
of the asserted facts. If there was error in refusing to permit the affidavits
to be supported by the testimony of the afflants, the uncontested affidavits are
again before the Board for evaluation as to their legal significance. As counsel
for the Respondent stated during the hearing, when objections (which were
overruled) were made by the General Counsel" to the admission in evidence
of some of the affidavits offered by the Respondent :
I am not so much concerned about the testimony of these other witnesses.
If the Trial Examiner wants to exclude the testimony of these other witnesses
as to the truth of what is contained in their affidavits, that does not harm
me so much because we do have their affidavits ; and if we have to go to
the Circuit Court of Appeals, the Circuit Court can look at the affidavits
and can for the sake of argument or consideration of the case accept the
affidavits as being truthful.
16 Objections based, not on the method of proof of the facts, or in contest of them, but on
the principle that the issue had, already been decided by the Board.
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . -
The Respondent's evidence is therefore in the record. It was accorded oppor-
tunity in the instant case to argue orally before the undersigned, and to file a
brief with him, in support of all assertions raised by the evidence. It will have,
if it desires, further opportunity to reiterate its assertions before the Board.
I am, therefore, unable to say that the Respondent has been deprived of a
hearing.
The Respondent further asserted in its answer, on information and belief,
that the Union has not represented a majority of the employees since March
1947. The only specific evidence offered by the Respondent in support of this
averment was an analysis of its pay-roll records. This analysis would establish
that of the 477' employees eligible to vote on September 13, 1946,
290 were on the March 15, 1947, list of 507 eligibles.
211 were on the September 13, 1947, list of 479 eligibles, and
191 were on the April 24, 1948, list of 605 eligibles.
This analysis was rejected. The fact that only 191 of 605 employees in the
appropriate unit on April 24, 1948, had been eligible to vote on September 13,
1946, does not, in my judgment, tend to establish that the Union did not repre-
sent a majority in April 1948 or at any intermediate date.
In its Supplemental Decision of November 1, 1946, the Board also certified the
Union as the collective bargaining representative.18 It is therefore found that
on September 13, 1946, the Union. was, and at all times thereafter has been, the
exclusive representative of the employees in the appropriate unit, within the
meaning of Section 9 (a) of the Act.
c. The negotiations
On September 18, 1946, 5 days after the election, Louis Stark, international.
representative of the Union and manager of its New Orleans Joint Board, wrote
the Respondent requesting a meeting to discuss contract negotiations. On Sep-
tember 21, J. H. Rutter, on behalf of the Respondent replied that he would hold
the Union's request "in abeyance" pending the outcome of the Respondent's pro-
tests of the election. On November 1, the Board issued its Supplemental Deci-
sion dismissing the objections to the election and certifying the Union as the
representative. On November 7, Stark again wrote the Respondent, asking for
a meeting. On November 12, Samuel Lang, one of the Respondent's attorneys_
replied, stating that a motion for reconsideration was being filed with the Board„
and that following its disposition, Lang would discuss the matter. On Novem-
ber 27, the Board denied the Respondent's motion for reconsideration. On
December 2 Stark again wrote to Rutter reiterating his request for a meeting
and inquiring whether Lang was authorized to negotiate a binding contract. On
December 11, 1946, Lang telephoned Stark and suggested a preliminary confer-
ence, and as a result a meeting was arranged for December 16. On the latter
date Lang met with Stark, Bernades and Wright, all union representatives, and
Stark's secretary.
At that meeting Lang told Stark that the Respondent was reserving all its
objections to the certification of the Union, but that it was nevertheless prepared
to negotiate. Stark said that he had no objection to that procedure. Lang
further stated that he and W. Gordon McKelvey, of Nashville, Tennessee, had
17 The tally of election ballots gives the "approximate" number of eligible voters as 486.
It is not clear whether 477 is a more exact number or whether it is a clerical error.
18 The certification refers to production and maintenance workers, rather than production
and maintenance employees. The variance, apparently clerical inadvertence, appears to
have no material significance.
J. H. RUTTER-REIX MANUFACTURING COMPANY' INC. 499
been designated by the Respondent to carry on negotiations. He then suggested
that Stark submit the Union's proposed contract in order that a copy could be
forwarded to McKelvey for consideration. Stark agreed, and. on December 30,.
1946, he mailed two copies of the proposed contract to Lang and requested a
prompt reply. In a letter to Stark dated January 3, 1947, Lang acknowledged
receipt of these documents but was unable to give any assurances as when he
and McKelvey could meet with the Union, because of McKelvey's immediate
unavailability. Lang's letter stated :
I am forwarding a copy of the proposed contract to Mr. McKelvey in
Nashville, for his consideration, and I am requesting that he arrange to.
come to New Orleans at his earliest convenience to participate in a confer-
ence with us. Mr. McKelvey has written me that his mother is critically
ill and that he has a number of engagements including trips to Georgia,
Texas, and Washington, D. C. for this month but I am sure that he will do
his best to get down here in the very near future so that we may go into
the various proposals with you without any more delay than is absolutely
necessary.
In subsequent communications between Stark and Lang tentative dates for a
meeting were arranged, according to Lang, on three or four occasions, but each
time had to be abandoned because of illness in McKelvey's family, inability to
secure hotel accommodations in New Orleans for McKelvey, or for other reasons.
Eventually, however, meetings were arranged and held on February 28 and
March 1, 1947.
The Respondent was represented at these two meetings by Lang and McKelvey,.
the Union by Stark, Wright, and Bernades. The Union's proposed contract was
discussed. Although the negotiations had not concluded at the end of the second
session, it was necessary to adjourn them because McKelvey's commitments
required his presence elsewhere. By March 5, however, Lang was able to arrange
another session for March 21, and so notified Stark.
- Pursuant to this arrangement the parties met again on March 21, and also
on the following day, March 22. The participants were the same as at the
previous sessions, plus a number of employees. The Union's proposed contract
and various modifications it suggested to meet objections by the Respondent
were again discussed, but no agreement was reached. This meeting concluded
without any arrangement being made for subsequent conferences.
After the March 22 meeting, Stark went to New York and was there for
weeks?0 Upon his return to New Orleans, in April, he called Lang and attempted
to arrange further meetings, but was unsuccessful. On May 12, he wrote
Lang complaining of the manner in which negotiations had been carried on_
That letter is as follows :
Your secretary called me by phone the other day and explained that you
are waiting for Mr. McKelvey to come. to New Orleans to resume our
negotiations. That has been the policy that prevailed in the past and
negotiations have to wait.
1° The Respondent 's testimony suggests that Stark intimated at the last conference that
he was going to New York to get authorization for a strike. Stark, however, denied this
and further denied that he discussed the Respondent 's situation with the International's
office in New York or that he went there for that purpose. It seems unnecessary to decide
this question , since there is uncertainty as to whether the failure to arrange for further
meetings at the end of the fourth conference was due to Stark's plans to go to New York,
or whether Stark left for New York only after being unable to get a date for the next
session.
.500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At this writing I would like to request that our negotiations be carried
on until a final settlement is reached. I further request that someone in
authority, such as Mr. Rutter, be present at these negotiations. I am not
satisfied with the present method of having to relate the Union's demands
after a token discussion, and then we stop there until you see Mr. Rutter
and come back with nothing further advanced after we have talked over
the subject matter of the contract.
I further request that these negotiations be carried on until such time
as a settlement is reached, without a break-off period to be resumed several
months later when Mr. McKelvey is available.
I don't intend to go on with the practice used in the past several negotia-
tions. Your letter stated to me prior to the start of negotiations that you
were authorized to negotiate the contract with the Union, and that is what I
expect from you.
I am on record demanding that any increase in wages be retroactive from
the day negotiations started with the Rutter Rex Manufacturing Company-
;Friday, February 28th, 1947.
'Lang promptly answered this letter with one dated May 15, 1947, in which he
:stated that lie regretted the circumstances which had delayed the negotiations.
The letter further said :
As you know, you telephoned me on Thursday, April 24, to let me know
'that you had returned from New York, and to request another conference.
.1 wrote Mr. McKelvey a day or two later and told him of this, and also advised
him that you had indicated no particular hurry, but that you wanted to have
.another meeting in the near future.
Meanwhile, I became swamped with work, due to a Labor Board hearing
-which kept me away from my office for the preparation and trial thereof,
-for 2 and one-half weeks. Then Mr. McKelvey had other commitments, and
^of&cials of the Company were ill, and we found it impossible to meet together
.although I had-before these complications set in-tentatively arranged for
Mr. McKelvey and I to meet with you on May 15.
Now, unfortunately, I have to attend to a number of pressing matters and I
-am unable to get together with Company officials and Mr. McKelvey, and no
one authorized to represent the Company is able to meet together with you
-within the next 3 or 4 weeks. On top of this, we have been served, in the
past few days, with a complaint based on a charge filed by you against this
Company, and this case is fixed for trial on June 9.20
I am asking that this trial be postponed until the end of June, for the same
reasons that I am giving to you, for not being able to meet with you right
:away. At any rate, it looks like an impossibility for any authorized Company
official to meet with you until after we finish the Labor Board case... .
Let me repeat, however, that Mr. McKelvey and I are fully authorized to
negotiate with you, as fully as if we were the entire Board of Directors and
all the officers of the Company, and that we will continue to make every
effort to bring the matter before us to a conclusion as expeditiously as
possible.
The Board hearing scheduled for June 9, 1947, referred to in Lang's letter,
-was thereafter postponed several times in the months of June and July. Finally,
,on July 16, it was indefinitely postponed. No further formal action with respect
20 A reference to the original complaint in the instant case, involving the alleged dis-
, criminatory discharges and miscellaneous acts of interference.
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 501
thereto occurred until April 28, 1948, 9 months later, when notice of hearing
issued for May 25, 1948, based upon the instant complaint.
In the latter part of July 1947, following the indefinite postponemelit of the
complaint case, Stark again called Lang and asked for a meeting. Lang got
in touch with McKelvey , but because of the latter ' s vacation and other com-
mitments he was unable to make an appointment before the week of Septem-
ber 21 . After receiving this information from McKelvey , Lang wrote Stark as
follows, under date of August 1, 1947:
Mr. McKelvey advises that due to vacation and work to which he has
been committed for sometime, he will not be able to come to New Orleans.
until sometime during the week of September 21st.
Please let us know whether it will be agreeable to you to meet one day
that week.
Stark answered Lang's letter on August 11 . His reply , while indicating his dis-
satisfaction , acquiesced to the September date :
I am in receipt of your letter of August 1st, and under the circumstances,
° nothing I could do would change the date as set by Mr. McKelvey ; and since
you have placed me in that position, I have no alternative than to go along.
We will be ready to meet on that date and I presume that I will be definitely
notified accordingly.
On September 11, 1947, however, this meeting was cancelled by the following
letter sent by Lang to Stark :
Since writing you on August 1st, I have attempted to communicate with
officials of the Company in order to take up with them again various ques-
tions before us during our bargaining meetings. While Mr. McKelvey and
I are free to meet with you at almost anytime, I now learn from company
officials that they cannot authorize us to go forward with any discussions
with you until such time their own critical situation with respect to the
business of the Company is clarified.
I am advised by company officials that it will be several weeks at least
before they will have time to give to Mr. McKelvey and me for a discussion
of the questions which were left with us in our dealings with you sometime
ago. Until Mr. McKelvey and I can discuss these matters with the responsi-
ble company officials, we will not be able to contribute anything of value in
a meeting with you.
Therefore, I must respectfully advise that we will have to await word from
these officials of the Company, as to when they will be ready to discuss the
pertinent matters with us, after which I shall again communicate with you.
From September 11, 1947, to February 1948, the Respondent's representatives
made no effort to arrange any further meeting or to communicate with the Union.
Whether the Union attempted to communicate with the Respondent is not alto-
gether clear from the evidence. Stark testified that he called Lang on the tele-
phone several times during this period in an effort to arrange further meetings,
but without success. According to Stark, Lang 's responses , "by and large
. . . were always dependent on Mr. McKelvey's being able to come to New
Orleans." On the other hand, Lang testified that he received no communications
of any kind, postal or telephonic, from Stark, from September 1947 to February
1948. Both witnesses are credible . In view of the persistence with which
Stark had previously pursued the subject, it seems unlikely that he would let
867351-50-vol. 86-33
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5 months pass without comment. On the other hand , his testimony in this re-
spect is not too definite as to time and circumstances , whereas Lang 's is positive
and unequivocal . Stark could have been mistaken . The ultimate issue can be
decided without disposing of the conflict.
In any event , on February 11, 1948, the Union filed a charge with the Board
alleging that the Respondent was, since September 11, 1947, refusing to_ bargain
collectively. Notification of the filing of this charge was mailed to the Re-
spondent on the same date.
On February 25, 1948, Stark sent a letter stating the following , to J. H . Rutter,
the Respondent 's president :
In view of the fact that Mr. McKelvey and Mr. Lang no longer seem to
have the authority to bargain on your behalf , will you, or a representative
of your Company, agree to meet with this Union immediately, or as soon
as possible , for the purpose of negotiating a working agreement?
An early reply will be appreciated.
0
Rutter made no direct reply to this letter. He turned it over to Lang. On
March 4, 1948, Lang wrote to the Board ' s Regional Office as follows, at the same
time mailing a copy to Stark :
NATIONAL LABOR RELATIONS BOARD,
631 Federal Office Building,
New Orleans 12, Louisiana.
Re : Rutter -Rex Mfg . Co., Inc.
Case 15-CA-33
DEAR SIRS :
I regret that because I have been busily engaged in negotiations with other
labor organizations, and because of the absence from the City and inac-
cessibility of Company officials, we have not been able to reply earlier to your
letter of February 11th since receipt of which we have also been advised by
the Union of its desire to meet again with company representatives.
We cannot understand why a charge was filed against the Company.
Sometime ago, after a lapse of some months due to a Labor Board case filed
by the Union against this Company, the Union requested another bargaining
meeting. At that time, a crisis had arisen in the Company's business, and
I so advised the Union adding that I would again communicate with its of-
ficials as soon as I could. This apparently was agreeable to the Union for
I received no reply thereto ; indeed, no further communication of any kind
was received by me or any company officials from that time until we were
surprised by the receipt of a copy of the charge referred to in the letter
of February 11th.
This is to advise you and the Union, to which a copy of this letter is
being sent, that we are perfectly agreeable to meeting with the Union again
at a mutually agreeable time and place.
Yours very truly,
KULLMAN & LANG.
By SAMUEL LANG.
cc : itlr. Lewis Stark, Amalgamated Clothing Workers of America.
It is inferred-it not being specifically denied-that the Union received a copy
of this letter. Neither the General Counsel nor the Union replied. On April 27,
1948, the General Counsel issued the complaint herein involved.
At the hearing in the instant case, the Respondent offered to resume bargain-
ing with the Union providing the unfair labor practice charges were withdrawn.
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 503
d. Conclusions as to refusal to bargain
The theory of the General Counsel is that the Respondent refused to bargain
with the Union on two counts: (1) that the Respondent sought consistently by
dilatory tactics to avoid meeting with the Union at all; and (2) that when it did
meet, its negotiating manifested a closed mind and a fixed determination not to
come to agreement with the Union. These propositions will be discussed in
reverse order.
I
As has been seen, there were four bargaining conferences, each of 2 to 3 hours,
on February 28, March 1, March 21, and March 22, all in 1947.
The summations of the participants in these meetings differ quite radically.
Thus, Stark's testimony characterized the actions of the Respondent's repre-
sentatives as "talk, talk, talk:" while Lang's description of Stark's attitude is
that the latter "pooh-poohed" all attempts at rational discussion. Such incom-
patible conclusions are not unusual from men genuinely persuaded of the justice
and logic of their own positions. The bargaining process often produces state-
ments of skepticism or disbelief, expressions of irritation or worse, or charges of
bad faith, emphatically and mayhap even violently stated. Where there is wide
disagreement on fundamental issues and-as unfortunately was evidently the
case here-there is latent distrust on both sides, adherence to view is easily
mistaken for intransigence, argument for "talk," and skepticism for indifference
to reason. However, the conclusions of the participants aside, to the disinter-
ested observer the specific facts recited in the testimony, while disclosing a
tenacity in argument on both sides, reveal no significant lack of adequate and
rational discussion of relevant issues.
Thee atmosphere in which the negotiations were carried on was no doubt far
from one of mutual good will. Rutter had made no pretense in his 1946 speeches
as to his dislike for the Union. More significantly, there were deeper reasons
for antagonisms. Rutter's testimony makes plain his conviction (entirely with-
out suggestion of support in the evidence) that the Union was responsible for
the stated decline of production and quality in 1946. The Union was equally
distrustful of the Respondent. On one occasion during the negotiations Stark
bluntly, and with no evident justification, accused McKelvey of being a profes-
sional "union buster."
There were misunderstandings, as well as real and basic disagreement. An
example of the former is the Union's testimony to the effect that the Respondent
refused to grant exclusive recognition to the Union and insisted that it would be
recognized only for its members since all employees had not voted for it. An
analysis of the evidence discloses, however, that the Respondent conceded the
Union's right to exclusive recognition, but in discussing the Union's demand
for a union shop cited lack of unanimity in the election as ground for opposing
the demand.
The negotiations began at a time when the Respondent was operating only
part time-20 hours a week. They were devoted exclusively to the Union's
proposed contract. The Respondent made no written counterproposals and none
were requested. The Union's proposals were discussed clause by clause. As each
was analyzed, Lang and McKelvey, who represented the Respondent, indicated
either their assent in principle or their dissent, with agreement on specific
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issues conditional upon the parties being able to arrive at a complete under-
standing. They suggested changes in a number of provision's not substantially
departing from the Union's position, and as modified they indicated their accept-
ance. These items included equal division of work, grievance procedure, strikes
and lock-outs. While these were probably items of only formal importance,
they demonstrate that the parties were not completely incompatible. Counter
suggestions substantially altering the Union's proposals were made in other
instances.
It appears to me that but for two fundamental items of disagreement, the
negotiators would ultimately have been able to compromise their differences.
These issues were the closed or union shop, and wages. Here the differences
were profound. The Respondent was unwilling to grant the Union any kind of
union-security provision, its argument being that it would not force into union
membership employees who were opposed to the Union. With respect to
wages the Union's initial demand was for a wage increase of $.25 per hour and
a minimum wage of $.65 per hour. The Respondent would grant no wage increase
whatever, nor would it raise the minimum wage of $.40 per hour required by law.
It pleaded inability to grant any such demands, pointed out that it was then
operating only 20 hours a week, and suggested that it might in fact be necessary
to reduce wages. The contrast is obvious between this declaration of poverty
and the prodigality the Respondent had exhibited 4i/2 months before when it
had sought to defeat the Union and to deprive it of one of its principal campaign
arguments by granting a substantial wage increase and paid vacations.
As Stark somewhat acidly pointed out during the negotiations, the Respondent
was itself responsible for whatever financial predicament it had got into, and
what he wanted to know was what the Respondent could now "give him."
Stark, no doubt, found himself in something of an unenviable position. The
Union had promised wage increases ; the Respondent had stolen its thunder.
It seems obvious that the Respondent was probably in no condition to grant
wage increases in February and March 1947 at a time when it was operating
on a part-time basis in a low cost, low profit margin industry, requiring a high
level of production for profitable operation. It is probably also true, as Stark
observed, that the Respondent, by its frantic attempt to defeat the Union, had
only itself to blame, and that, had it observed the law, it might in all likelihood
have been able to come to terms with Stark in 1947 on a wage increase. It may
well be that the September 1946 increases were a substantial factor in producing
the 1947 part-time operations. But, whatever the cause of the 1947 predicament,
it seems evident that it existed. I cannot say that under such circumstances
the refusal to grant increases was a refusal to bargain .21
In an effort to secure some kind of concession, Stark modified his wage
demands at every turn. He finally appears to have virtually abandoned them
altogether, finally pleading either for the union shop or a wage increase, one or
the other. The Respondent would make no concession on either point. A mere
refusal to grant a union shop is not, however, per se an unfair labor practice.
Tenacious and even stubborn adherence to a point of view is not, in and of
itself, a refusal to bargain. It might well be that were there no affirmative
evidence as to inability to pay, resistance of the Respondent in February and
-This situation illustrates what could be a vexing problem . Where wage increases
are granted to the limit of ability to pay, or beyond , in order to defeat a union, the latter
is in practical effect deprived of a subject of bargaining , and obliged to accept a situation
contrived to defeat it.
11
J. 11. RUTTER-REX MANUFACTURING COMPANY, INC . 505
March 1947, when contrasted with its conduct in September 1946, could be
ascribed to a desire to avoid agreement . But where, as here, economic condi-
tions appear to have contributed to that resistance, it can hardly be said defini-
tively that the negotiations constituted a refusal to deal masked under the guise
of simulated negotiation.
To one viewing the proceedings from outside the circle of interest, Lang and
McKelvey at times appear to have been very hard bargainers indeed. On the
minimum wage issue, the Respondent's base rate was already $.671/2 per hour,
and its average wage rate, according to the Respondent, $.78 per hour 22 Yet
the Respondent consistently refused to raise its minimum rate any degree from
the statutory minimum of $.40, or even to establish a graduated minimum based
on length of service, its argument being that payment of an increased minimum
to new operators would inordinately raise the Respondent's costs. While the
Union's proposals on this point, as modified from time to time to meet the
Respondent's objections, do not seem unreasonable, and while it might well have
been more politic for the Respondent to have made some concession on the
issue, it is not my function to judge the intrinsic merit of the controversy, or to
act as an arbitrator.
While there is much in the testimony and in the Respondent' s brief suggesting
that the Respondent erroneously conceives its role in the bargaining process to
be merely the passive and negative one of meeting with the Union and discussing,
without positive intent to avoid coming to agreement, whatever demands the
Union presents, with the responsibility wholly on the Union to suggest or press
for action or to seek to find a basis for agreement, I am not convinced that its
actions at the bargaining conferences, while far from demonstrating an eager-
ness to come to terms with the Union, were sufficiently non-cooperative to warrant
a finding of refusal to bargain based thereon."
II
There remains for consideration the question as to whether the Respondent
failed and refused to meet with the Union.
As has been seen, the election was held in September 1946. Five days after
the election, on September 18, the Union began to press the Respondent to
negotiate. The Respondent replied that it would hold the request "in abeyance"
pending the outcome of its protests. On November 1 the protests were over-
ruled by the Board and the Union certified. Stark again wrote asking for
a meeting . The reply was that the Respondent was filing a motion for recon-
22 The Respondent operated on an incentive wage system in which earnings were based
on individual production measured against a norm of $.673/ per hour. See Stark's speech
of September 27, 1946.
23 Assuredly the Respondent is under a duty to attempt earnestly and affirmatively to
reach an agreement with the bargaining representative . Section 204 ( a) of the Labor
Management Relations Act imposes the obligation upon employers , employees and their
representatives in any industry affecting commerce , to "(I) Exert every reasonable effort
to make and maintain agreements concerning rates of pay, hours, and working conditions."
The Congressional purpose of securing industrial stability and labor-management peace can
hardly be achieved unless the participants on both sides of the bargaining table genuinely
seek to find a satisfactory solution of their differences and make some positive contribution
to that end . As the Fifth Circuit Court of Appeals has said :
We believe there is a duty on both sides, though difficult of legal enforcement, to
enter into discussion with an open and fair mind, and a sincere purpose to find a basis
of agreement . . . and to embody it in a contract as specific as possible, which shall
stand as a mutual guaranty of conduct, and as a guide for the adjustment of grievances.
(Globe Cotton Mills v . N. L. R. B., 103 F. 2d 91 (C. C. A. 5) ).
5O6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sideration and that it would discuss the matter thereafter. On November 27,
1940, the motion for reconsideration was denied. No action was forthcoming
from the Respondent. On December 2 Stark wrote again. Finally, on Decem-
ber 11 a preliminary conference was arranged and on December 30 the Union
submitted its proposed contract. Because of the unavailability of McKelvey,
actual negotiations did not start until February 28, 1947. Two meetings were
then held on successive clays and the negotiations were again interrupted because
of McKelvey's unavailability. On March 21 and 22 the final meetings were held.
In April and May 1947 Stark unsuccessfully attempted to secure further meet-
ings. Lang responded that because of various factors, other pressing matters
of his own, McKelvey's schedule, and the pending complaint case, they could
not meet until after the hearing. In July the complaint case was indefinitely
postponed. Stark again called Lang. Again because of McKelvey's commit-
ments, no meeting could be arranged before September 21. Then on September
11, 1947, the negotiations were indefinitely postponed by Lang pending discussion
of the Respondent's situation with its officials.2' There the situation remained
until Stark filed charges. Then Lang wrote indicating the Respondent's willing-
ness to meet.
In my opinion the above-described course of conduct does not constitute
bargaining collectively in good faith.
The obligation to bargain collectively surely encompasses the affirmative duty
to make expenditious and prompt arrangements, within reason, for meeting and
conferring. Agreement is stifled at its source if opportunity is not accorded
for discussion or so delayed as to invite or prolong unrest or suspicion. It
is not unreasonable to expect of a party to collective bargaining that he display
a degree of diligence and promptness in arranging for collective bargaining
sessions when they are requested, and in the elimination of obstacles thereto,
comparable to that which he would display in his other business affairs of
importance. In my judgment the Respondent's actions here fall short of that
standard.
Although the Union first requested a meeting in September 1946, none (exclud-
ing the purely preliminary meeting in December) could be arranged until
February 1047, 5 months later. The Respondent was not required, of course,
to meet until after the representation case had been disposed of. Yet, although
that disposition was made on November 27, and although he had twice made
known his desire to meet, Stark had to make another request on December 2
in order to secure a preliminary conference. So far as the record shows the
Respondent disployed no initiative whatever in seeking to arrange conferences.
More fundamental than that, however, was the failure to arrange meetings
within a reasonable time. Over 3 months elapsed from the time the Respondent's
motion for reconsideration was denied, until a real bargaining session was held.
Two meetings were then held on successive days, then almost another month
elapsed and two more sessions were held. Thereafter, the pendency of the
complaint proceedings, McKelvey's unavailability and other matters were cited
as reason for not acceding to Stark's request for a meeting. Finally, when these
matters were out of the way, meetings were indefinitely postponed because of the
Respondent's financial condition.
24 Lang's testimony is that the Respondent was then faced with the problem of possible
liquidation and that the outlook was uncertain . This information was not conveyed to
Stark, however , for the reason that the Respondent did not want its difficulties to become
known to the employees.
J. H. RUTTER-RE.X MANUFACTURING COMPANY, INC. 507
After Lang's letter of September 11, 1947, to Stark, the initiative certainly
passed to the Respondent to make expeditious arrangements for meeting further.
But it gave the Union no word of any kind. It simply allowed the situation to
drift along as it had. In view of the persistent efforts the Union had been
making since the previous September to conclude negotiations, and the Re-
spondent 's persistent delay, the fault can scarcely be ascribed to the Union.
While there is testimony by Lang to the effect that when asking for meeting in
April 1947 Stark had said that he was in no hurry, Lang could hardly have had
any doubt as to Stark's anxiety to meet after the latter's requests in July and
the resigned tone of his letter of August 11, consenting to the September 21 (late.
In any event, the Union should not be criticized for having engaged in some
social amenity and for not having made itself unpleasant. The argument of the
Respondent to the effect that the Union should have "pressed for meetings" after
the September 11, 1947, letter is not only indicative of the Respondent's erroneous
concept of the scope of the bargaining obligation, but beside the point. The
duty was plainly on the Respondent after September to arrange meetings in
accordance with the pending requests . A demand for a meeting does not lapse
merely because it is not satisfied; it does not cease to be a demand because it is
not periodically or persistently or unpleasantly reiterated. Throughout the
whole period from November 1946 to February 1948, the Respondent was seem-
ingly content to play a quiescent and negative role, leaving the initiative wholly
to the Union. It is true that the Respondent was apparently quite willing to
meet with the Union and discuss the latter's proposals when it was convenient
for the Respondent to do so. More than that, however, was required.
The pendency of the complaint case in the summer of 1947 and the Respondent's
financial difficulties later in the year do not constitute excuse for not meeting
with the Union. Bargaining in the first instance might have resulted in a
complete meeting of the minds resolving all the outstanding differences and
avoiding the present proceeding altogether. While the Respondent's business
involvements may have been grave, its employee relations were equally as im-
portant. The Union may have been able to render real assistance in helping
the Respondent to meet its crisis.
The failure of the Union to follow through on its request for a meeting in
February 1948, after it had filed charges, and after the Respondent had indi-
cated in March a willingness to confer, is not adequately explained. Certainly
as a matter of courtesy, at least, an answer should have been forthcoming.
Whatever its reason for not replying, the Union ought to have made it clear.
But the mere statement by the Respondent in its March 4, 1948, letter to the
effect it was "perfectly agreeable to meeting with the Union at a mutually
agreeable time and place" did not cure its dilatory conduct. Such a frame of
mind had been professed by the Respondent repeatedly since December 1946.
The Union can hardly be blamed if-as seems likely-it hesitated, without as-
surances of a more concrete character, to accept the repetition of this declaration
of good will, once it had taken the definitive step of filing charges, as a guaranty
that the Respondent was now prepared to meet its statutory obligations. A simple
statement to that effect would, however, have avoided any suspicion of equivo-
cation . As to the offer made by the Respondent at the hearing to bargain with
the Union, thta offer was plainly conditional-effective, as I understand it,
only if the Union would abandon its unfair labor practice charges. An offer
so conditioned is not a bona fide one.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No suggestion is intended herein that either Lang or McKelvey deliberately
attempted to avoid meeting with the Union. Both are apparently men with sub-
stantial private practices and other interests, understandably of great importance
to them, which made it extremely inconvenient to negotiate promptly and ex-
peditiously with the Union. In addition, McKelvey's office was in Nashville,
Tennessee. Thus any meeting required a trip by McKelvey to New Orleans. As
has been seen his other commitments made this difficult to arrange. There is
nothing to suggest that either Lang or McKelvey purposely avoided the Union
or ' .ctempted to evade coming to agreement with it. Neither had any apparent
motive for so doing, and they did not so impress me. Lang is a former employee
of the Board and a member of the faculty of Tulane Law School ; McKelvey has
negotiated numerous agreements for employers in the textile industry. Quite
apart from my own similar conclusion based on personal appraisal, I deem those
circumstances inconsistent with the supposition that either Lang or McKelvey
would have been deliberately evasive with the Union here. Moreover, the
immediate reason for the failure to meet after September 11, 1947, was not the
conflict with Lang's and McKelvey's other affairs, but the Respondent' s fiscal
circumstances and the asserted unavailability of its officials.
The settlement of disputes over terms and conditions of employment, how-
ever, is a matter of first rate importance if industrial stability is to be achieved.
The Act requires reasonably prompt and expeditious bargaining arrangements,
inconvenient though such dispositions might sometimes be. As the Board said in
Matter of Burgie Vinegar Company, 71 N. L. R. B. 829, where delay in arranging
to meet with the bargaining representative was occasioned by illness of the
Employer's president.
. . . notwithstanding the unfortunate predicament in which it was placed 4'v
the serious illness of its president, the respondent was under a positive
legal duty to commence bargaining with reasonable promptitude after the
certification and the Union's request for a meeting. The regrettable handi-
cap under which the respondent labored due to Burgie's illness, did
apparently impair its ability to deal with matters related to its ordinary
business affairs, and therefore , does not afford convincing excuse for its
admitted failure to enter into bargaining negotiations with the Union until
more than 5 months after the Union's initial request. In labor relations,
a delay in commencing collective bargaining entails more than mere post-
ponement of an ordinary business transaction, for the passage of time itself,
while employees grow disaffected and impatient at their designated bargain-
ing agent's failure to report progress, weakens the unity and economic power
of the group, and impairs the Union's ability to secure a beneficial contract.
The Act, which was designed to equalize bargaining power between em-
ployees and employers, does not permit an employer to secure, even un-
intentionally, a dominant position at the bargaining table by means of
unreasonable delay.
And see Matter of Aldora Mills, 79 N. L. R. B. 1.
It is found that since September 11, 1947, the Respondent has refused to bargain
collectively with the Union, thereby interfering with, restraining , and coercing
its employees in the exercise of rights guaranteed in Section 7 of the Act.
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 509
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring
in connection with the operation of the Respondent' s business described in
Section I, above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in unfair
labor practices, it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent has refused to bargain collectively
with the Union it will be recommended that the Respondent bargain with the
Union.
Upon the basis of the above findings of fact, and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAW
1. Amalgamated Clothing Workers of America, C. I. 0., is a labor organization
within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the Respondent, including
shipping department employees, but excluding all office and clerical employees,
line operators, mechanics, supervisors, floor ladies, and all other supervisory
employees with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend such action
constitute a unit appropriate for the purposes of collective bargaining within
the meaning of the Act.
3. Amalgamated Clothing Workers of America, C. I. 0., was on September
13, 1946, and at all times thereafter has been, the exclusive representative of
all the employees in the appropriate unit, within the meaning of the Act.
4. By failing and refusing to bargain collectively with Amalgamated Clothing
Workers of America, C. I. 0., as the exclusive representative of its employees
in the appropriate unit the Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(1) of the original Act and Section 8 (a) (1) of the amended Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the original Act and
the amended Act.
7. The Respondent has not engaged in the following unlair labor practices:
(a) Discharging Audrey L. Norman, Marie Murphy, Dora Nella Richards,
Creasie White, Minnie Lee Springfield, or Gertrude Spears because of their
union membership or activity.
(b) Interrogating employees as to union membership or activity.
(c) Engaging in surveillance of, or hiring private police to engage in surveil-
lance of or to prevent, union activity.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Threatening to shut down the plant or to curtail operations if the
employees designated the Union.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, it is recom-
mended that the Respondent, J. H. Rutter-Rex Manufacturing Company, Inc.,
New Orleans, Louisiana, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Clothing Workers of
America, C. I. 0., as the exclusive representative of employees in the appro-
priate unit.
(b) Interfering with, restraining or coercing its employees in the exercise of
their right to self-organization, to form labor organizations, or to join or assist
Amalgamated Clothing Workers, C. I. 0., or any other labor organization, to
bargain collectively through representatives of their own choosing and to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act :
(a) Bargain collectively with Amalgamated Clothing Workers of America,
C. I. 0., as the exclusive representative of its employees in the appropriate unit,
and embody any understanding reached in a signed agreement.
(b) Post at its plants at New Orleans, Louisiana, copies of the notice attached
hereto marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Fifteenth Region, shall, after being signed by the Re-
spondent's representative, be posted by the Respondent and maintained by it for
sixty (60) consecutive days thereafter in conspicous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for the Fifteenth Region in writing, within
20 days from the date of service of this Intermediate Report, what steps the
Respondent has taken to comply therewith.
It is further recommended that the complaint be dismissed insofar as it alleges
that the Respondent:
1. Discharged Audrey L. Norman, Marie Murphy, Dora Nella Richards, Creasie
White, Minnie Lee Springfield, or Gertrude Spears, because of their union mem-
bership or activity.
2. Interrogated employees as to their union membership or activity.
3. Engaged in surveillance of, or hired private police to engage in surveillance
of, or to prevent, union activity.
4. Threatening to shut down the plant or to curtail operations if the employees
designated the Union.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Rochambeau Building, Washington 25, D. C., an original
and six copies of a statement in writing setting forth such exceptions to the
Intermediate Report and Recommended Order or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and six copies of a brief in support thereof ;
J. H. RUTTER-REX MANUFACTURING COMPANY, INC. 511
and any party may, within the same period, file an original and six copies of a
brief in support of the Intermediate Report and Recommended Order. Im-
mediately upon the filing of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
Statements of exceptions and briefs shall designate by precise citation the
portions of the record relied upon and shall be legibly printed or mimeographed,
and if mimeographed shall be double spaced. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required
by Section 203.85. As further provided in said Section 203.46, should any
party desire permission to argue orally before the Board, request therefor must
be made in writing to the Board within ten (10) days from the date of service
of the order transferring the ease to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 28th day of October 1948.
CHARLES W. SCHNEIDER,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with the exclusive bargaining
representative of our employees, or interfere with, restrain or coerce our
employees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist AMALGAMATED CLOTHING WORKERS OF AMERICA,
C. I. 0., or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection.
All our employees are free to become or remain members of this Union, or
any other labor organization.
WE WILL bargain collectively with respect to rates of pay, hours of em-
ployment or other conditions of employment, with AMALGAMATED CLOTHING
WORKERS OF AMERICA, C. I. 0., as the exclusive representative of all our
production and maintenance employees, including shipping department em-
ployees, but excluding all office and clerical employees, line operators, me-
chanics, supervisors, floor ladies, and all other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action.
WE WILL embody any understanding reached in a signed agreement with
the aforesaid AMALGAMATED CLOTHING WORKERS OF AMERICA, C. I. O.
J. H. RUTTER-REX MANUFACTURING COMPANY, INC.,
Employer.
By ---------------------------------•---------------------
(Representative) (Title)
Dated---------------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.