Jones Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 15, 1953

104 N.L.R.B. 117 (N.L.R.B. 1953)

NEW MADRID MANUFACTURING COMPANY 117
NEW MADRID MANUFACTURING COMPANY, A CORPORA-
TION , AND HAROLD JONES, AN INDIVIDUAL, d/b/a
JONES MANUFACTURING COMPANY and INTERNATIONAL
LADIES ' GARMENT WORKERS UNION , A.F.L. Case No.
14-CA- 698. April 15, 1953
DECISION AND ORDER
On September 4, 1952, Trial Examiner Louis Plost issued
his Intermediate Report in the above - entitled proceeding
finding that the Respondent, New Madrid Manufacturing Com-
pany, herein called the Company, had engaged in and was en-
gaging in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative ac-
tion, as set forth in the copy of the Intermediate Report attached
hereto. He also found that the Company had not engaged in other
unfair labor practices alleged in the complaint and recommended
dismissal of those allegations. Thereafter, the Company filed
exceptions to the Intermediate Report and a brief, and the General
Counsel filed exceptions, a brief, and a memorandum. The Union
and Respondent Harold Jones, an individual, d/b/a Jones Manu-
facturing Company, herein called Jones, filed no exceptions-'
The Board ' has reviewed the rulings made by the Trial
Examiner at the hearing, and finds that no prejudicial error
was committed.' The rulings are hereby affirmed .4 The
Board has considered the Intermediate Report , the exceptions,
the briefs and memorandum , and the entire record in the case,
and hereby adopts the Trial Examiner ' s findings , conclusions,
and recommendations , with the following additions and modifica -
ti ons .
i The Company 's request for oral argument is denied because in our opinion the record,
exceptions, brief, and memorandum adequately present the issues and positions of the parties.
2Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers
in connection with this case to a three-member panel [Members Houston , Murdock, and
Styles].
3The Company argues that the Trial Examiner demonstrated bias and prejudice in failing
to credit witnesses Jerome Morrison , secretary- treasurer oftheCompany , and Harold Jones,
and in expressing an opinion that Jones was protected by the Thirteenth Amendment from
fulfilling his obligations under the terms of his contract with the Company . While the Board
disavows and regards as irrelevant such comments of the Trial Examiner , a careful analysis
of the record and the Intermediate Report reveals no bias or prejudice on the part of the Trial
Examiner . It is the Board's established principle that a Trial Examiner's credibility findings
are entitled to great weight , because in resolving conflicting testimony he is in a position to
observe the demeanor of the witnesses . Wood Manufacturing Company , 95 NLRB 633.
However, we note and correct the following minor misstatements or inadvertent errors in
the Intermediate Report , none of which affects the Trial Examiner 's ultimate conclusions or
our concurrence therein: (1) Jerome Morrison did not "change his testimony " when he ex-
plained that he did not have his first talks with Portageville businessmen in Portageville but
did speak to them outside of Portageville when they came from Portageville to visit him. (2)
The Trial Examiner erroneously understood Morrison to have testified that the decision to
close the plant in November 1951 was based on an audit made in the following year by the
Company 's accountant . It is clear from the record that Morrison testified that reliance was
placed on an earlier audit made by his brother.
4The Respondents request the dismissal of the complaint on the ground that the General
Counsel failed to support the allegations therein . For reasons set forth below , the motions are
hereby denied.
104 NLRB No. 8.
283230 0-54-9
1 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. We do not decide, as did the Trial Examiner, that the
sales contract between Jones and the Company whereby the
latter sold its Malden plant machinery to the former for use
in Portageville is not "a real contract" and of no binding
effect upon Jones. The Board assumes the validity of the
contract. It is clear, however, from the facts detailed in the
Intermediate Report that the Company by the terms of the
agreement retained substantial control over Jones' operations
at Portageville. We conclude that Jones' status is that of a
coemployer and partial successor to the Company's Malden
plant business. The Trial Examiner found, and we agree, that
Jones had knowledge of his predecessor's unremedied unfair
labor practices at the time heagreedtotake over the business.
We therefore find that both the Company and Jones are Respond-
ents in this case and both are jointly and severally liable for
the unfair labor practices found herein.'
2. In view of the foregoing and the fact that the Malden plant
was operated as a branch of the Company which, during the
period from March 25, 1951, to- March 25, 1952, received in
manufacturing fees more than $ 25.,000 for goods shipped to
points outside the State of Missouri, we find that the Respond-
ents are engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to assert
jurisdiction in this case.6
3. We agree with the Trial Examiner that the Company
independently violated Section 8 (a) (1) by the following conduct:
(1) Harold Jones' threats to Rachel House at the "food locker
plant" before its operations ceased on June 23 , 1951 , to Nora
Skaggs at the "air base plant" toward the end of July 1951,
and to Dollie King at her home on October 30, 1951, that the
plant would be closed and moved away if the Union won the
election; (2) the statement of Supervisor Ruth McCarver to
Tylene Butler when the "air base plant" was opened on July
10, 1951, that Eris Stricklin was fired because she was so strong
for the Union; (3) Jones' unlawful interrogation of Mildred
Canady, Geraldine Corder, and Betty Jo Younger after the
opening of the "air base plant" concerning their union activity
and those of other employees; (4) Jones' inquiries about
November 1951 into the union membership of applicants for
employment at Portageville; (5) Jones' statement to Betty Jo
Younger at her home on October 30, 1951, that the cutters at
the plant in New Madrid would not cut for a union shop; and
(6) Jerome Morrison' s statements in his Halloween party speech
of October 29, 1951,thatif the Unionwon the election, Morrison
would be requested to lay off employees who became delinquent
in their dues,T and there would be no more work at the Malden
'Joseph E . Cote, d/b/a J . E. Cote, and Brook Farm Foods , Inc., and Edouard Cote, 101
NLRB 1486 ; Somerset Classics , Inc., and Modern Mfg. Co ., Inc.. 90 NLRB 1676, enforced
193 F. 2d 613 (C.A. 2); The L. B. Hosiery Co., Incorporated and Lee Maisel, doing business
as Myerstown Hosiery Mills , 88 NLRB 1000 , enforced 187 F. 2d 335 (C.A. 3).
6Irving Lambert , Murray S. Lambert, and Seymour Lambert, d/b/a Sue-Ann Manufacturing
Company, 98 NLRB 848 ; Stanislaus Implement and Hardware Company , Limited , 91 NLRB 618.
7Standard Coil Products , Inc., 99 NLRB 899.
NEW MADRID MANUFACTURING COMPANY 119
plant_because the cutters at the New Madrid plant would not
cut for a union shop. Contrary to the Company' s contention,
the coercive effect of Morrison's speech was not dissipated
by affording the union representative an opportunity to speak
to the employees at the Halloween party or by Morrison's
assurance to the employees that he was not making any
threats. "
4. The Trial Examiner found that the Company did not dis-
criminatorily refuse to recall Eris Stricklin and Lena Livingston
on July 10, 1951, at the time its operations were transferred
from the "food locker plant" to the "air base plant" at the
Malden, Missouri, location. Although he concluded that the
reasons advanced by the Company in failing to recall these
employees were unimpressive, the Trial Examiner neverthe-
less found that the failure of the General Counsel to call the
two employees, who were apparently present in the hearing
room, as witnesses left "this unimpressive testimony" vir-
tually unchallenged on the record. We find, however, contrary
to the Trial Examiner, that there is sufficient evidence, set
forth below, to warrant the conclusion that Stricklin and
Livingston were discriminatorily denied employment by the
Respondent. While the testimony of these available witnesses
would, of course, be most useful, the fact that they did not
testify is not in itself sufficient grounds for dismissing these
allegations of the complaint.
The record shows that the Company, at least a month before
the Malden operations were moved to the "air base plant,"
was convinced that both Stricklin and Livingston were strong
union adherents. At about that time, according to the credible
testimony of employee Mildred Canady, Jones told her that
Stricklin and Livingston were "really strong", for the Union.
Geraldine Corder', another employee credited by the Trial
Examiner, also testified to a conversation with Jones in which
he stated that Livingston was too slow and too much for the
Union. Moreover, employee Nora Skaggs credibly testifiedthat
Jones told her "Ens Stricklin is a good worker but she is
interested in the Union too much." Skaggs further testified
that Jones later sa.ia that if employee Lura McMunn " doesn't
take to doing better work and not be interested in the Union so
much she is going to get what Stricklin got." The conversation
between employee Tylene Butler and Supervisor Ruth McCarver,
set forth in the Intermediate Report, reveals that McCarver
OSomerset Classics , Ind. and Modern Mfg. Co., Inc., supra. Cf. Bonwit Teller, Inc., 96
NLRB 608.
The Trial Examiner made no finding concerning the General Counsel's allegation in the
complaint that the Company violated Section 8 (a) (1) of the Act by the payment of vacation
checks 2 months in advance of the scheduled date on the eve of the election . As no exception
was filed to the Trial Examiner 's failure to make such a finding, we shall not pass upon this
issue.
The General Counsel contends that the Trial Examiner erred in rejecting his offer of proof
to the effect that Letty Jones, the mother of Harold Jones , was a supervisor at Malden and in
that capacity made certain unlawful antiunion statements . As we have already found violations
of Section 8 (a) (1) by Jerome Morrison and Harold Jones, we do not deem it necessary to
decide whether there were additional violations of the Act by Letty Jones.
1 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told Butler that Stricklin , the employee replaced by Butler,
"got fired on account she is so strong for the union."
The record further shows that both Stricklin and Livingston
were competent employees . Although the Company contends that
Stricklin was not recalled because she did not properly tie her
completed bundles of skirts for the next assembly operator,
the latter employee , Vernice Russell, testified that Stricklin's
bundles were properly arranged . On cross-examination Jones
conceded that Russell was in abetter position than he to observe
Stricklin ' s work in this connection . Both Jones and Morrison
admitted that they otherwise regarded Stricklin as "a very
efficient" and "a very good operator ." With regard to
Livingston , there is no contention by the Company that the
quality of her work was unsatisfactory . The Company , however,
contends that she was not recalled because her piecework
production was below average . Contrary to the Company's con-
tention , the record reveals that a number of other employees,
who were not disciplined by the Company , frequently failed to
achieve production goals . Thus, the record discloses that
during a 24 -week period in the first half of 1951 , which pre-
ceded the termination of the operations at the "food locker
plant ," 6 other employees were each given "make-up ," i.e.,
the difference between their piecework earnings and the mini-
mum wage required by law , from 10 to 14 weeks.9 While
Livingston was on makeup for 19 weeks of this period, her
total amount of makeup , $ 55.14 , was exceeded during these
weeks by the totals of other employees , such as Losh , $ 93.25,
Oxley, $73.79, and Cartwright , $ 67.21 . There is no evidence
in the record that any employee other than Stricklin and
Livingston had ever been discharged or disciplined for the
reasons advanced by the Company with regard to these em-
ployees.
On the basis of the foregoing and the entire record in this
case, including the Company ' s failure to advance valid reasons
for not recalling Stricklin and Livingston, and the Company's
demonstrated hostility toward the Union, we find that these
employees were discriminatorily denied employment in viola-
tion of Section 8 (a) (3) and (1) of the Act. We shall therefore
order them reinstated with back pay. However , in accordance
with our usual practice where a Trial Examiner dismisses an
8(a) (3) allegation , in computing back pay and net earnings, the
period between the Intermediate Report and the Decision and
Order shall be excluded.to
5. The Trial Examiner found , and we agree , that the Com-
pany on November 12, 1951, violated Section 8 (a) (5) of the
Act by refusing to bargain with the Union which had been cer-
tified 4 days earlier ." As indicated in the Intermediate Report,
the Company in its letter replying to the Union ' s recognition
request "presume [ d]11 that a bargaining conference would be
9Genevieve Cartwright , Emma Louise Losh , and Edna Alexander (14 weeks), Mildred
Canady (13 weeks ), and Loreda Oxley and Flora Harvell ( 10 weeks).
lORub-R-Engraving Co., 89 NLRB 475.
11 We also find that the refusal to bargain was in violation of Section 8 (a) (1) of the Act.
NEW MADRID MANUFACTURING COMPANY 121
"useless" in view of the absence of any intention of resuming
operations at the Malden "air base plant" which had been
closed for more than a month. The letter concluded with the
statement that "at any rate" a meeting could not be held on the
date specified by the Union because of conflicting engagements.
Although, as detailed in the Intermediate Report, the Com-
pany was already planning to move its plant from Malden to
Portageville, Missouri, under the aegis of Jones, the Company
disregarded the Union's right to be notified of any change in
the working conditions of the employees it represented by
failing to reveal its plan to the Union. The Union was thus un-
lawfully deprived of an opportunity to bargain with the Company
about the possible transfer of employees to the plant in
Portageville. That. the Company did not intend to deal with the
Union is clear from the fact that the Company had already em-
barked on and continued its campaign of unfair labor practices
which included interrogation of its employees concerning their
union membership and activity and culminated, as indicated
below, in the lockout of its employees. Under these circum-
stances, we agree with the Trial Examiner's conclusion that it
would have been futile for the Union to make further attempts
to arrange a bargaining conference."
6. We also agree with the Trial Examiner that the Company
laid off its Malden plant employees in October 1951, closed
the Malden plant, and under its sales contract with Jones,
moved the plant's facilities to Portageville as a means of
combating the Union. Accordingly, we find that the Malden
plant employees were thereby discriminatorily discharged in
violation of Section 8 (a) (3) and (1) of the Act.
7. The complaint in section (f) of paragraph 18 charged the
Company with violating Section 8 (a) (1) of the Act by engaging
in surveillance of union activity. The record shows no evidence
of such activities within the period of limitation specified in
Section 10 (b) of the Act and the Trial Examiner made no find-
ings in regard thereto. We find, therefore, that the Company
did not in this manner violate the Act as alleged in the com-
plaint, and we will therefore dismiss the pertinent part of the
complaint.
THE REMEDY
We agree with the Trial Examiner that the status quo existing
before the commission of the unfair labor practices should be
restored by requiring the Respondents to resume operations at
the Malden, Missouri, plant, or by providing employment at the
Portageville, Missouri, plant. We shall therefore order the
Respondents to offer the employees named in the Appendix
attached hereto13 reinstatement to their former or substantially
12C & D Coal Company, 93 NLRB 799; Somerset Classics, Inc., and Modern Mfg. Co., Inc.,
supra; Howard Rome, an individual . d/b/a Rome Products Company and Kenton Plastics Cor-
poration. 77 NLRB 1217.
13 As Letty Jones has a close family relationship to Harold Jones and was therefore allied to
management , we, unlike the Trial Examiner who regards Letty Jones as an ordinary employee,
shall exclude her from the list of those entitled to reinstatement. See footnote 8, supra
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivalent positions, at the Malden plant, if the Respondents
reopen it, or at the Jones Manufacturing, Portageville, Missouri,
plant, without prejudice to their seniority and other rights and
privileges dismissing, if necessary to provide employment for
those offered and accepting employment, all employees at the
Portageville plant. If there is not sufficient employment then
immediately available for these persons, all available positions
shall be distributed among the employees entitled to reinstate-
ment in accordance with the Respondents' usual method of
operation under curtailed production, without discrimination
against any employee because of union affiliation or activities,
following the system of seniority, if any, customarily applied to
the conduct of the Respondents' business. Any employees re-
maining after such distribution for whom no work is immediately
available, shall be placed upon a preferential list prepared in
accordance with the above principles, and shall thereafter, in
accordance with such list, be offered employment in their
former or in substantially equivalent positions as such em-
ployment becomes available and before other persons are hired
for such work.14 J
While we agree with the Trial Examiner that employees
should be paid the expenses entailed in moving their families
and household effects, in the event the Respondents do not
elect to reopen the Malden plant, we do not agree that those
employees who choose to commute to Portageville should be
paid their daily expenses for that purpose.
We shall also order the Respondents to make whole the
employees listed in the Appendix for any loss of pay they may
have suffered by reason of the Respondents' discrimination in
the following manner: Pay to the said employees, excluding
Eris Stricklin and Lena Livingston, a sum of money equal to
the amount each would normally have earned as wages from
the date of the discrimination 15 to the date of an offer of re-
instatement less her net earnings during such period.16 Pay to
Eris Stricklin and Lena Livingston a sum of money equal to
that which each would normally have earned during the period
from the date of the Respondents' discrimination againstthem,
July 10, 1951,17 to the date of the Intermediate Report herein,
and during the period from the date of the Decision and Order
herein to the date of the Respondents' offer of reinstatement,
less net earnings during such periods.18 In the case of those
employees for whom there is insufficient work available, the
terminal date of the back-pay period is to be the date of em-
ployees' placement on a preferential list as hereinabove set
forth. '
As noted above, we have found that both the Company and
Jones are jointly and severally liable to remedy the unfair
14Sam Wallick and Sam K . Schwalm , Partners, d/b/a Wallick and Schwalm Company , et al.,
95 NLRB 1262.
is This date is given for these employees in Appendix A of the Intermediate Report.
16 F. W. Woolworth Company, 90 NLRB 289; Crossett Lumber Company, 8 NLRB 440.
17 As noted supra , this is the date when the Malden "air base plant" began operations.
18See footnote 16, supra.
NEW MADRID MANUFACTURING COMPANY 123
labor practices herein. However, as the Trial Examiner did
not specifically recommend that Jones as well as the Company
be required to do so, we find that Jones is liable during the
periods preceding the Intermediate Report and subsequent to
the date of the Decision and Order hereinbut not for the inter-
vening period.
In view of the nature of the unfair labor practices committed,
the commission by the Respondents of similar and of other
unfair labor practices may be anticipated. We shall therefore
make our Order herein coextensive with the tireat and order
that the Respondents cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
ORDER
Upon the entire record in this case and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondents, New
Madrid Manufacturing Company, a corporation, New Madrid,
Missouri, and Harold Jones, an individual d/b/a Jones Manu-
facturing Company, Portageville, Missouri, and their officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Ladies' Gar-
ment Workers Union, A.F.L., or in any other labor organization
of its employees, by discharge, by lockout, or in any other
manner discriminating in regard to their hire or tenure of
employment or any term or condition of their employment,
except to the extent permitted by the proviso to Section 8 (a)
(3) of the Act.
(b) Inquiring into the union membership of any of their em-
ployees, or in any other manner interrogating or questioning
their employees with respect to their union membership or
sym athies, or threatening reprisals for organizing a union.
(c) Refusing to bargain collectively with International Ladies'
Garment Workers Union, A.F.L., as the exclusive representa-
tive of all the employees in the appropriate unit with respect to
rates of pay, wages, hours of employment, or other conditions
of employment.
(d) In any other manner interfering with, restraining, or
coercing their employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist
International Ladies' Garment Workers Union, A.F.L., or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all 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 Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
1 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer the employees named in the Appendix attached
hereto immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make all these
employees whole for any loss of pay suffered, both in the
manner set forth in the section of this Decision and Order
entitled "The Remedy."
(b) Upon request, bargain collectively concerning wages,
hours, and other conditions of employment with International
Ladies' Garment Workers Union, A.F.L., as the exclusive
representative of all employees in the appropriate unit, and if
an understanding is reached, embody such understanding in a
signed agreement. If the Respondents elect not to reopen the
plant at Malden, but to continue at Portageville, recognize the
Union as the representative of the employees at Portageville,
Missouri, and bargain with the Union in the manner above set
forth.
(c) Send to the employees named in the Appendix a letter
offering said employees reinstatement, and also setting forth
the Respondents' election as to where they will effect such re-
instatement, and include in such letter a copy of the notice
attached hereto and marked "Appendix." 19
(d) Post at the Portageville plant, or the Malden, Missouri,
plant, if the Respondents elect to reopenit, copies of the notice
attached hereto and marked "Appendix." Copies of said notice,
to be furnished by the Regional Director for the Fourteenth
Region, shall, after being duly signed by the Respondents'
representatives, be posted by them immediately upon receipt
thereof and be maintained by them for a period of at least sixty
(60) consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps should be taken by the Respondents to insure
that such notices are not altered, defaced, or covered by any
other material.
(e) Preserve and, upon request, make available to the
National Labor Relations Board or its agents, for examination
and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all
other records necessary to analyze the amounts of back pay
due under the terms of this Order.
(f) Notify the Regional Director for the Fourteenth Region,
in writing, within ten (10) days from the date of this
Order what steps the Respondents have taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint insofar as
it alleges that the Respondents violated Section 8 (a) (1)
of the Act by engaging in surveillance, be, and it hereby is,
dismissed.
19In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pur-
suant to a Decree of the United States Court of Appeals , Enforcing an Order."
NEW MADRID MANUFACTURING COMPANY 125
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Re-
lations Board , and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT interrogate our employees concerning
their membership in, or adherence to, International Ladies'
Garment Workers Union, A.F . L., or any other labor organi-
zation , or threaten them with reprisals or loss of benefits,
either directly or by implication , for such membership or
adherence.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their right to
self-organization , to form labor organizations , to join or
assist International Ladies' Garment Workers Union,
A.F.L., or any other labor organization , to bargain collec-
tively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and 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 Act.
WE WILL NOT discourage membership of our employees
in International Ladies' Garment Workers Union , A.F.L.,
or in any other labor organization of our employees by
locking out and discharging any of our employees or in
any other manner discriminating against them in regard
to their hire or tenure of employment or any term or con-
dition of employment.
WE WILL offer to the employees named below immediate
and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or
other rights and privileges previously enjoyed. If the
Malden plant is not reopened , we will offer to these
employees immediate employment in substantially equiva-
lent positions at the Jones Manufacturing plantinPortage-
ville , without prejudice to their seniority and other rights
and privileges , and with the necessary traveling and
moving expenses.
WE WILL make whole the said employees for any loss
of pay suffered as a result of the discrimination against
them.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edna Alexander
Geraldine Corder
Rachel House
Blanche Galloway
Lela Collison
Winnie Smith
Mildred Canady
Cecile Blake
Flora Harvell
Thelma Barton
Ollie May Gentry
Janice Bennett
Eva Teeters
Gladys Holcomb
Mae Ceile Blade
Thelma Harris
Emma Louise Losh
Eris Stricklin
Tylene Butler
Nora Skaggs
Loreda Oxley
Ruth Fields
Elsie Haywood
Dollie King
Mildred Irby
Ada Warren
Pauline Warren
Elsie Bridgeforth
Billy McKinsey
Agnes Hardesty
Betty Jo Younger
Madge Pyle
Vernice Russell
Lura McMunn
Billy Kirkpatrick
Lena Livingston
WE WILL bargain collectively upon request with the
above-named union as the exclusive representative of all
employees in the bargaining unit described herein with
respect to rates of pay, hours of employment, or other
conditions of employment, and if an understanding is
reached, embody such understanding in a signed agree-
ment. The bargaining unit is:
All production employees at the Malden or Portageville,
Missouri, plants, excluding executives, office clerical
employees, foreladies, foremen, supervisors, watchmen,
guards, and all other employees excluded under the Act.
All our employees are free to become or remain members
of the above-named union or any other labor organization. We
will not discriminate in regard to hire or tenure of employment
or any term or condition of employment against any employee
because of membership in or activity on behalf of any such
labor organization.
NEW MADRID MANUFACTURING
COMPANY,
Employer.
Dated . ............... By.... . ...............................................
(Representative ) ( Title)
HAROLD JONES, AN INDIVIDUAL, d/b/a
JONES MANUFACTURING COMPANY,
Employer.
Dated ................ By....................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
NEW MADRID MANUFACTURING COMPANY 127
Intermediate Report
STATEMENT OF THE CASE
Upon an amended charge duly filed by International Ladies' Garment Workers Union , A.F.L.,
herein called the Union , the General Counsel of the National Labor Relations Board, by the
Regional Director for the Fourteenth Region (St. Louis, Missouri ), issued a complaint dated
March 21 . 1952 , against New Madrid Manufacturing Company , a corporation , and Harold Jones,
an individual, d/b/a Jones Manufacturing Company, herein called the Respondents , alleging
that the Respondents had engaged in and were engaging in unfair labor practices within the
meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor
Relations Act (61 Stat . 136), herein called the Act. i Copies of the complaint and charge were
duly served on the parties.
With respect to the unfair labor practices the complaint alleged , in substance , that on June
4 and on July 3 , 1951 , the Respondent , New Madrid Manufacturing Company , discharged certain
named employees ; that onor about October 4 , 1951 , the Respondent , New Madrid Manufacturing
Company , locked out and discharged all its production and maintenance employees and on or
about October 15 , 1951 , for an illegal purpose ceased to operate its plant at Malden , Missouri;
that it thereafter through a ficticious sale pretended to deliver the machinery and equipment
of said plant to Harold Jones who as the agent and alter ego of the Respondent , New Madrid
Manufacturing Company, set up said machinery at Portageville , Missouri , where the Re-
spondent through said Jones now operates as Harold Jones d/b/a Jones Manufacturing Com-
pany; that on October 31, 1951, the Respondent 's employees at Malden , Missouri , selected and
designated the Union as their exclusive bargaining agent ; that on and after November 7, 1951,
the Respondent , New Madrid Manufacturing Company , has refused to bargain collectively with
the Union as such exclusive bargaining agent ; that the Respondents have engaged in various
acts of interference , restraint, and coercion in violation of the Act; and that by the above
conduct have violated Section 7 of the Act and more particularly 8 (a) (1), (3 ), and (5) thereof
The Respondent , New Madrid Manufacturing Company, duly filed an answer in which it
denied that it had engaged in any of the unfair labor practices alleged in the complaint.
The Respondent Jones, filed an answer denying that he had engaged in any of the alleged
unfair labor practices. Jones further moved that the complaint be dismissed as to him. The
undersigned denied the motion.
Pursuant to notice a hearing was held on May 19 through 23 , 1952, inclusive , before Louis
Plost , the duly designated Trial Examiner , at Malden , Missouri.
At the hearing all the parties were represented by counsel , were afforded full opportunity
to be heard , to examine and cross- examine witnesses , to introduce evidence pertinent to the
issues, to argue orally upon the record , and to file briefs and proposed findings and conclu-
sions. Oral argument was waived by all parties . A date was fixed for the filing of briefs and/or
proposed findings and conclusions with the undersigned . Briefs have been received from the
Respondents and the General Counsel , together with proposed findings and conclusions from
the Respondents.
At the close of the General Counsel 's case- in-chief and again at the close of the hearing,
the Respondents moved to dismiss the complaint in effect on the ground that there was no
substantial evidence to support the allegations therein . The undersigned denied these motions.
Likewise at the close of the hearing the undersigned granted a motion by the General Counsel
to conform the pleadings to the proof with respect to names, dates, spelling , and like matters.
Upon the entire record in the case , and from his observation of the witnesses , the under-
signed makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT I
The Respondent , New Madrid Manufacturing Company , New Madrid , Missouri.' is a
Missouri corporation having its principal plant at New Madrid , Missouri , where it is engaged
in the manufacture and distribution of various kinds of garments for women 's wear.
I The original charge was filed November 26 , 1951, and was duly served . The amended
charge was filed March 21, 1952.
2 For reasons later apparent the undersigned makes no finding under this heading as to
Respondent Harold Jones , d/b/a Jones Manufacturing Company.
3Hereafter , "Respondent" will refer to the Respondent New Madrid Manufacturing Company.
Respondent Jones shall be referred to as "Jones."
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent manufactures garments under contract with various distributors, the cloth
used in such manufacture being shipped to it by its customers, remaining at all times their
property and not the property of the Respondent. 4
During the period of March 25, 1951. to March 25, 1952. the Respondent manufactured and
shipped 25,000 dozens of garments, and used 400,000 yards of its customers' cloth in such
manufacture. Seventy-five percent of the garments it manufactured was shipped by the Re-
spondent to points outside the State of Missouri.
The Respondent received $148.000 in manufacturing fees during this period.
Prior to October 31, 1951, the Respondent operated a branch plant at Malden, Missouri.
Materials cut at New Madrid were shipped to the Malden plant for processing and were then
returned to New Madrid for shipment to customers.
II. THE ORGANIZATION INVOLVED
International Ladies ' Garment Workers Union , A. F.L., is a labor organization within the
meaning of Section 2 (5) of the Act, and admits employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
Synopsis
Apparently the Union began organizing the Respondent's Malden employees sometime in
1950. The General Counsel contends that on or about July 10, 1951. the Respondent discharged
two of the employees in its Malden plant because of their union membership and activities; on
October 31, 1951, the Respondent's Malden employees selected the Union as their exclusive
bargaining representative in an election conducted by the Regional Director for the Board's
Fourteenth Region, pursuant to a consent-election agreement; on November 7, 1951, the Union
requested bargaining , the request was denied by the Respondent; on and after October 4, the
Respondent locked out its Malden employees; on or about November 28, the Respondent
removed its plant from Malden, and that prior to the removal of the plant the Respondent
engaged in certain conduct amounting to unfair labor practices violative of the Act.
The Respondent's answer to the General Counsel's contentions above mentioned, admits that
it discharged the two employees in July 1951, but avers the discharges were for legal cause,
further avers that it sold the machinery in its Malden plant to Harold Jones who removed it,
and further denies that it engaged in any of the unfair labor practices alleged in the complaint.
Jones avers that he took the machinery under a valid sale and is not liable as he is operating
a new business apart from the Respondent.
A. The refusal to bargain
1. The appropriate unit and the Union's representation therein
There is no dispute that following a petition duly filed by the Union under Section 9 (c) of the
Act and docketed by the Fourteenth Region as Case No. 14-RC-1578, the Respondent and the
Union on October 19, 1951, entered into an "Agreement for Consent Election " agreeing that
an election to determine the choice of the Respondent's Malden employees for an exclusive
bargaining representative be conducted by the Regional Director for the Fourteenth Region
within a unit consisting of:
All production employees in the Company's [Respondent 's] plant at Malden , Missouri,
excluding executives , office and clerical employees , foreladies, foremen , supervisors,
watchmen , guards and all other employees excluded under the Act.
The election was duly conducted on October 31, 1951. On November 8, 1951, the Regional
Office certified that a majority of the valid ballots cast in the election were in favor of the
Union, and that the Union was the exclusive representative of all the employees in the unit
for purposes of collective bargaining.
The undersigned therefore finds that at all times since November 8, 1951, the Union has
been the representative for the purposes of collective bargaining of the employees in the
aforesaid unit which the undersigned finds to be appropriate.
4The Respondent 's relationship to its customers is known as "jobber and contractor"
throughout the industry . For a complete , illuminating , and scholarly discussion of practices
in the garment manufacturing industry, see, Abels v . Friedman , 14 N.Y .S. 2nd 252.
NEW MADRID MANUFACTURING COMPANY 129
2. The Respondent 's refusal to bargain
On November 7, 1951 , the Union addressed a letter from St. Louis, Missouri , by registered
mail , to the Respondent at New Madrid, wherein it requested a bargaining conference and
suggested November 15 as a suitable date.
On November 12, the Respondent through its attorney replied , also by registered mail. In
its reply the Respondent stated that it had "no intention of resuming operations at the Malden
plant ," the plant having then been closed "for more than a month." The Respondent closed
with the statement that "At any rate it [ a meeting ] could not be held on the 15th of this
month because of conflicting engagements ."S Jerome Morrison , the Respondent 's secretary-
treasurer and its active manager , testified that the Respondent "never discussed anything with
the Union."
The undersigned finds that on November 12, 1951 , the Respondent refused to bargain with
the Union as the exclusive representative of its employees within an appropriate unit, in
violation of Section 8 (a) (5) of the Act.
B. Interference, restraint, and coercion
1. Conduct of Harold Jones
There is no dispute that the Respondent began the operation of its plant at Malden in July 1,
1950, in a building designated by the witnesses as the "food locker plant "; that it ceased
operations in this building June 23, 1951 , and removed to a building called the "air base
plant ," where it resumed operations on or about July 10, 1951 ; that on October 19, 1951, the
Respondent and the Union entered into an agreement for consent election , as herein found,
which by its terms provided for an election on October 31, 1951; that prior to the date of the
election the Respondent had shut down its plant ; and that on Halloween , October 29. 1951,
the Respondent gave a party for its employees in the plant , which though not operating was
opened for the purpose.
Rachel House testified that sometime while the plant was located in the "food locker
building" and while the Union was attempting to organize the employees , Harold Jones, the
Respondent's plant manager , entered into a conversation with her in the plant and that during
the course thereof,
Well, he said if we went union, that the ones who voted for the Union would be for it and
if we got the Union that the factory would move, that Mr. Morrison would move the factory.
Mildred Canady testified that "about a month before" the Respondent moved from the "food
locker plant" Harold Jones came to her machine; and after writing the names of all the
employees on the side of her machine told her that he could tell her "the ones that is strong
for the Union and the ones that is not so strong for the Union and the ones that had signed
cards." Jones then asked, "you have signed a card, haven't you?" Canady replied, "yes, I
have."
Geraldine Corder testified that Jones asked her "which way" she would vote in an election
to choose a bargaining representative . She further testified:
Well, the boss, Harold , asked me, well , I don 't know exactly how many times, but he
did question me who all I thought joined the union and went to the meetings.
Corder could not fix the time of these occurrences, except that "it was the month they had
those union meetings ." Apparently the incidents occurred while the Respondent operated at
the "air base plant."
Vernice Russell testified that she was employed by the Respondent in April 1951; that
"about three weeks " before the factory [ air base plant ] closed she asked Jones "if he
thought I would ever have steadier work ," and that Jones replied , "We plan on filling the
factory with machines if nothing interferes ." Russell testified that employee Betty Jo Younger
was present during this conversation.
5 The fact that the Union 's demand was made the day prior to the certification was not raised,
however although a certification fixes a date of irrebuttable proof of majority , the Respondent
could not in good faith refuse to bargain with the Union on its demand made after the election
but before the actual certification solely because the "certification" had not yet issued.
In view of all the circumstances in the case the undersigned finds that the Union was not
under obligation to repeat the futile gesture of formal demand on the Respondent.
13 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Younger corroborated Russell and also testified that when she first applied for work at the
Respondent 's "air base plant," Jones asked her if she belonged to a union or had ever be-
longed to one. Upon receiving a negative reply, Jones remarked , "good. "
Jones , except that he denied generally making any coercive statements to any of the
Respondent 's employees , did not deny the testimony of Rachel House , Geraldine Corder,
Vermce Russell, and Betty Jo Younger as above set out, and further testified that he could
not recall the conversation between himself and Mildred Canady.
The undersigned credits the testimony of House, Corder, Russell, Younger, and Canady
and finds that their accounts of the conversations they had with Jones, the statements made
by him therein , under the circumstances set forth in their testimony , represent accurate
versions thereof and therefore finds that Jones made the statements attributed to him in the
above- related testimony.
2. The alleged discriminatory discharges of Lena Livingston and Eris Stricklin
As herein found the Respondent ceased its operation at the "food locker plant " about June
25, 1951 , removed to the "air base plant ," where it began operations on July 10.
It is not in dispute that when the "air base plant" began operations two of the employees
at the former plant, namely, Lena Livingston and Eris Stricklin, were not recalled.
The General Counsel contends that the two employees were not recalled, and thus discharged,
because of their membership in and activities on behalf of the Union in support of this
contention the General Counsel offers the following to prove union membership and activity
by Livingston and Strickhn and knowledge thereof by the Respondent:
Lura McMunn testified that "in the middleofMay" 1951, Mrs. Whitacre, the union organizer,
together with McMunn, Strickhn, Livingston, and another employee were all in a grocery
store and there met Harold Jones. McMunn testified:
Q. Did you speak to him?
A. Yes, sir.
Q. Did he speak to you?
A. Yes, sir.
Nora Skaggs testified that on the first day she returned to work on the reopening at the "air
base plant" in a conversation with Jones, he said to her, "Eris Stricklin is a good worker
but she is interested in the Union too much."
Skaggs further testified that Harold Jones told her some two or three weeks later" "if the
girls voted the Union in that Mr. Morrison would close the factory down and move it away."
Tylene Butler, who replaced Stricklin, testified to the following conversation with Ruth
McCarver, admitted by the Respondent to be a supervisor:
I asked her what become of that girl to get fired that was on my job and she said I think
she got fired on account she is so strong for the union, but she said she is supposed to
get fired on account of the not stacking her skirts straight.
McCarver was not called.
With respect to Lena Livingston, Morrison testified that she was employed by the Respondent
June 7, 1950, and that her last day of employment was June 25, 1951; that he did not know
her but that his inspections of the payrolls convinced him that she was inefficient because as
a pieceworker she did not produce enough to cover the guaranteed day rate; 6 that he told
Jones "we could not continue to keep repeatedly taking make ups on this girl."
With respect to Eris Stricklin, Morrison testified that she was employed from August 15,
1950, to June 15, 1951; that she was the only "blind stitch" operator in the plant and that she
was a "very good operator" but that Jones complained to him regarding the manner in which
she did her work.
Jones testified that Livingston was a "fair operator"; that the quality of her work was good;
that she was slow. Using company records Jones testified that Livingston did not make her
guaranteed rate, however these records also show that most of the other employees during the
same periods also failed to make their rates. Jones further testified that she was not recalled
because she was slow. Jones did not tell Livingston she would not be recalled at the time the
plant was shut down to move. Livingston asked for her job at the "air base plant" and was
refused.
6 The day rate, 75 cents per hour, is fixed by statute . Piecework rates are set by the Re-
spondent.
NEW MADRID MANUFACTURING COMPANY 131
With respect to Stricklin , Jones admitted that she hemmed "practically every garment
that went through our factory." He testified that he did not recall her to the new plant because
when she finished her task and passed the work to the next operator:
Well , they were left loose for one thing , she didn't tie her bundle tight , sometimes the
string would slip off. Of course , that happened to a lot of girls, but not as frequent as I had
to call Eris down for it. Sometimes they got loose in the box, then when you pick them up
they are messed up. Another way they would be thrown up there in a haphazard way, maybe
one skirt would be twisted around , the best I remember.
Vernice Russell testified that she was theoperator who received the garments from Stricklin
for the next operation and that:
When I got my garments, my skirts from Eris Stricklin the bands were together and
the bottoms were together.
Both Morrison and Jones denied any knowledge of union membership or activity on the part
of Livingston or Stricklin . Jones, however , admitted he knew an attempt was being made to
form a union among the Respondent 's employees at the " food locker plant" in 1950.
Neither Livingston nor Stricklin was called by the General Counsel. 7
Although the evidence adduced by the Respondent in support of its reasons for the discharge
of Livingston and Strickhn is quite unimpressive, the failure of the two women to testify and
dispute the Respondent 's contentions leaves this unimpressive testimony virtually unchallenged,
therefore although the matter is by no means free from doubt the undersigned finds on the
record as made that the evidence does not sustain the allegations of the complaint as to the
discriminatory discharge of Lena Livingston and Eris Stricklin. The undersigned will recom-
mend that the complaint be dismissed insofar as it so alleges.
3 The closing of the plant
The Respondent shut down its Malden plant in October 1951. Morrison testified that "all
phases of operation were closed completely. It was, I would say, in the first half of October."
He further testified that at the time the plant was shut down it was only temporary and
occasional solely because it became too cold to work. The record discloses the shutdown began
October 4.
It is clear that the Respondent's building, which it rented from the city of Malden and which
was to be made suitable for the Respondent's purposes by the city, was at the time being
equipped with a heating plant.
According to Morrison's testimony there was "an extremely cold snap right after Labor
Day" 1951, which lasted "four or five days." According to Morrison the temperature fell to
350 or 400. He testified:
Q. Have you ever been out therein that building when you had 35 to 40 degree tempera-
ture
A. Yes, I have, Mr Kennedy.
Q When was that?
A. Anywhere from the 10th of September to the 1st of October , right along that time
there.
Morrison further testified that "some time between the 10th and the end of September 1951,
a number of girls [were] finding it necessary to wear their coats and work."
Labor Day in 1951 fell on September 3.
Jones testified:
Well, from the middle of September, Mr. Blanton, it was starting to cool, but it wasn't- -
then that was when we really had some good production, because it wasn't too hot to work
and it wasn't too cold to work and then getting on into the month of October it got cooler
and the girls from time to time would complain about their fingers being cold , and our
pressers naturally were over steam presses and they didn 't complain too much except
in the fore part of the day when the building was still cool and their machinery hadn't
had time to warm up.
7 The Respondent and Jones both point out in their briefs that Livingston and Stricklin were
in the hearing,room throughout the hearing
13 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Certified official U. S. Weather Bureau records of the temperature taken at the Malden,
Missouri, airbase for the months of September and October 1951 were received in evidence.
These official records show that September 3, 1951 (Labor Day) had a maximum temperature
of 850. The maximum temperatures for the following 10 days at Malden is shown to be 80°,
85°, 79°, 83°, 91°, 84°, 87°, 91°, and 75°.
In the entire month only 1 day fell below 70°, maximum, while only 1 day of 70° maximum
was recorded, these being September 28, 640 maximum , and September 29, 700 maximum.
The last day of the month rose to 840 maximum.
The parties stipulated the dates the employees were laid off in closing the plant. A total of
35 employees were laid off, according to Morrison, because it was too cold to work.
The number of employees laid off each day and the maximum officially recorded tempera-
ture for the day is as follows:
Number laid off Date Temperature
7 October 4, 1951 890
10 October 5, 90°
1 October 9, 67°
4 October 10, 70°
10 October 12, 76°
1 October 11, 750
1 October 16, 83°
1 October 20, 690
It seems quite clear that extreme cold was not the cause of the shutdown. It becomes neces-
sary therefore to determine if the record discloses another and more plausible reason for the
shutdown.
Russel Ferguson, a local merchant, testified without contradiction that during "the latter
part of last [1951] summer or early fall," Morrison in an address to a local business men's
club stated that:
.. he could not operate under a union scale He put it this way, if he had to do that
he had better be near his market or near his source of supply so that he wouldn't have
to pay that freight back and forth.
Lowell P. James, a member of the same club, testified without contradiction that Morrison
addressed the club "a couple of times," saying that "unions did give trouble."
The undersigned has found that Jones made coercive antiunion statements, including a
statement to the effect that the plant would be moved if the employees were organized into a
union.
Jones testified that "along the first of October" Morrison instructed him to inform the
proper city representative that if heating facilities had not been installed by October 15, the
plant would cease operations.
Jones also testified that he was ordered to remove the sewing machine heads from the plant,
as the building would "draw moisture" because of the cold and they would rust. The machinery
was so dismantled and moved shortly after the shutdown.
On October 19, 1951, 8 the Respondent entered into a consent- election agreement with the
Union, the date of the election being set for October 31.
4. The Halloween party
As found herein the election agreed upon by the Union and the Respondent was set for
October 31.
On October 24, the Respondent invited all its laid-off employees to attend a Halloween party
at the idled plant during the afternoon of October 29. The invitation was by post card signed
by Jones and stated:
Refreshments will be served.... The vacation checks will be disbursed and vital
matters of interest and concern to the girls will be discussed.
When the Respondent ' s guests had arrived refreshments were served and Morrison
addressed those present.
8 The date the Union filed its petition for an election with the Region is riot shown by the
record.
NEW MADRID MANUFACTURING COMPANY 133
Thelma Barton testified:
Q. Would you tell us what your recollection as to what Mr. Morrison told the em-
ployees?
A. Well, he had the ballot and he held it up and said he couldn't tell us which way to
vote, whether for or against it, and he wasn't making any threats, that he wanted us all to
go out and vote, and he had Harold read in the clippings from the paper, violence had been
done when he was organizing a union in some town, I don't know what town, and there was
windows broken and people was out of work. Mr. Morrison also went on to state after Mr.
Jones had finished reading this article that he had talked to the cutters and they had re-
fused to cut for a union shop and there would be no work and they had their privileges, the
same as we had ours. He also said that we would have union dues to pay if we wanted an
election, that our children might need them for clothing and he also said that if we got
behind on our union dues that he would be required to lay us off, and that we couldn't go to
him as before, him or Harold, we would have to go to the union representative and then
back to him.
Barton was corroborated by Rachel Jones, Geraldine Corder, Vernice Russell, and Janice
Bennett, all called by the General Counsel. Pauline Warren and Ada Warren called by the
Respondent gave virtually the same account of Morrison's talk.
Morrison's version of his talk is substantially the same as to content; however, he elaborated
as to his statement regarding the attitude of the Madrid cutter, testifying "that they asked me
to advise them of this." However Orva Loderback, called by the Respondent, testified that he
was the only cutter employed by the Respondent; that he expressed himself as reported; and
that Morrison asked his permission to repeat his remark to the Malden employees. Morrison
also testified he told the employees the Respondent believed "their interests would best be
served if they voted no union." Morrison delivered the vacation checks.
There is no dispute that while Morrison was speaking Mrs. Whitacre, the Union's repre-
sentative , sent in word that she wished to come in and make an announcement; that she was
asked to wait outside until Morrison had finished; was then admitted and made an announce-
ment to the assembled employees.
Jones testified that the vacation checks distributed by Morrison were to have been distributed
the following Christmas "but as to why Mr. Morrison gave it on the day he did, I don't know."
Jones further testified that he read a newspaper article at Morrison's request but that he
could not now recall its contents.
Conclusions as to Morrison's Speech
According to Morrison's version of his talk to the employees, at the time he told them the
New Madrid cutters, from whom their work was received , would refuse to cut garments for a
"union shop" he also told them "they should not construe that as a threat or intimidation or
anything to that effect . I was merely transmitting some information I was authorized to give."
Morrison, however , failed to tell his audience that the Respondent employed but one cutter
at New Madrid whose permission to convey his antiunion expression Morrison solicited.
Morrison also omitted from his version a striking illustration , oratorically embellished,
which all others testifying, both for the General Counsel and the Respondent, recalled as a
highlight to the talk ; thus Pauline Warren, called to corroborate Morrison, testified:
He said, I will just tell you another little story that he said. I hope we won 't get too
confused on it. He said, "Now take Mary Smith, I hope there isn 't any Mary Smith's here
because I am not referring to anyone personally , but take Mary Smith now , here she is
and she has a family, maybe two to three children , and she has to feed them, there is no
father , just Mary Smith to take care of all them, and she has to feed those children , clothe
them, send them to school." Well, he said , "What if we had a union ", he says, "I am just
telling you some of the possibilities of the things that could happen." He said , "If Mary
Smith, she has children , has to send them to school and no other income, only her work
here, at the place, at the plant ," and he said , "maybe she couldn't pay her dues, her
union dues, she might fail to pay her union dues , the union might come in and say Mary
failed to pay her union dues, we will have to get rid of her ." And he said , "I wouldn't
have no choice , I would have to do what they said to do and get rid of Mary no matter how
badly she needed the work ." He said , "Now, I am not telling you that , threatening you or
anything like that , but it is a possibility that something like that could happen."
Z83230 0 - 54 - 10
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. (By Mr. Kennedy) Did I understand you a moment ago to say that this might happen?
A. He said it is a possibility itcouldhappen And he said, "There would be Mary with-
out a job." But he said, "I am not telling you that it will happen, I am just telling you
that it could happen and not trying to scare anyone or influence anyone. I am just telling
you what could happen, and they could do as they please," but that is what he thought
could happen.
All other auditors testifying gave virtually the same account.
Human beings do not exist in a physical vacuum, nor "reach for the stars" in a mental
vacuum. It has been well said 9 with respect to the effect of speech on human relationships:
Words are not pebbles in alien juxtaposition; they have only a communal existence;
and not only does the meaning of each interpenetrate the other , but all in their aggregate
take their purport from the setting in which they are used, of which the relation between
the speaker and the hearer is perhaps the most important part.
The undersigned must be mindful that Morrison spoke to an audience of laid-off employees,
whose attendance, if not whose good will, had been insured by a promise to distribute money
due them but which would not ordinarily have been distributed for another 2 months; that the
assembly was in a closed factory whose machinery was partly dismantled ; that he spoke but
2 days preceding an election to determine a bargaining representative ; that the audience in-
cluded individual employees found herein to have been questioned regarding union affiliation and
told by a supervisory official that the plant would be closed if the employees effected union
organization.
In this setting and under all the circumstances of the case as disclosed by all the evidence
considered as a whole, Morrison' s statement to the effect that materials for the operation of
the Malden plant would not be cut if his audience voted in a "union shop," and his intimation
that a union would force the Respondent to discharge any employee who failed to pay dues, no
matter what the hardship , cannot be regarded as mere expressions of opinion by Morrison,
wholly protected by the constitutional guaranty of free speech and the Act , but were in reality
coercive statements loaded with threats, and were calculated to be so. Clearly Morrison was
not confining himself to intellectual discussion in his remarks but was engaging in intimida-
tion, coercion, and restraint, violative of the Act, and unprotected by the Constitution, for the
right of free speech is not a license to go beyond the boundries set by the Board and the courts
in matters affecting labor relations.
Morrison's statement that the employees were free toact as they pleased was not enough in
itself to remove the coercive effect of his remarks if one considers them in relation to the
speaker and his audience . As the court stated in the Kropp Forge case: to
It also seems clear to us that in considering whether such statements or expressions
are protected by Section 8 (c) of the Act , they cannot be considered as isolated words cut
off from the relevant circumstances and background in which they are spoken. A state-
ment considered only as to the words it contains might seem a perfectly innocent state-
ment , including neither a threat nor a promise . But, when the same statement is made by
an employer to his employees , and we consider the relation of the parties , the surrounding
circumstances , related statements and events and the background of the employer's ac-
tions, we may find that the statement is a part of a general pattern which discloses action
by the employer so coercive as to entirely destroy his employees' freedom of choice and
action. To permit statements or expressions to be so used on the theory that they are pro-
tected either by the First Amendment or by Section 8 (c) of the Act, would be in violation
of Section 7 and contrary to the expressed purpose of the Act . Therefore , in determining
whether such statements and expressions constitute , or are evidence of unfair labor prac-
tice , they must be considered in connection with the positions of the parties , with the
background and circumstances under which they are made , and with the general conduct
of the parties . If, when so considered, such statements form a part of a general pattern
or course of conduct which constitutes coercion and deprives the employees of their free
choice guaranteed by Section 7, such statements must still be considered as a basis for
a finding of unfair labor practice . To hold otherwise would nullify the guaranty of em-
ployees' freedom of action and choice which Section 8 (c) could not have intended that re-
sult
The undersigned is convinced and finds that admitting Union Representative Whitacre to the
meeting to make an announcement after Morrison had finished speaking , first , having her wait
9Justice Learned Hand in N.L. R.B. v. Federbush , 121 F. 2d 954 (C. A. 2).
ioN.L.R.B. v. Kropp Forge Company , 178 F. 2d 822 (C.A. 7); cert. denied 340 U S. 810.
NEW MADRID MANUFACTURING COMPANY 135
outside until he had done so, did not in any way cancel the coercive effect of Morrison's re-
marks.
The undersigned finds that by Morrison's talk to the Respondent's employees in October
1951, as above found, the Respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed them in Section 7 of the Act.
Jones admitted that on the day after Morrison's talk he (Jones) called at the homes of various
employees who had not been present. According to Jones he told each "that it was important
that she come to the election and vote" and also gave them "the company's sentiment toward
the thing," repeating as best he could Morrison's remarks with respect to the cutter's refusal
to cut for a union shop.
Dollie King testified that Jones called at her home and had the following conversation with
her.
Well, he asked me why didn't Igo to the Halloween party. I told him I didn't have no way
to go, and he asked me if I was going to vote and I come up and nothing happened.
Q. Was anything else said9
A. He said well, he couldn 't tell me how to vote, but if it went union he was afraid the
factory would close down and Mr . Morrison was figuring on closing the factory down and
moving it out.
Jones admitted calling on King but denied that he stated the plant would close. The under-
signed credits King. ii
Betty Jo Younger testified that Jones called at her home after the Morrison speech meeting,
which she did not attend. Younger testified:
Well, he said I am not trying to influence you on how to vote, and he we- on to say that
we would have more privileges and better opportunity if the union don't come in, and that
the New Madrid cutters wouldn't cut for a union shop and that meant we would be out of
work
Jones admitted speaking to Younger regarding the cutter's remarks. He testified, "I just
relayed the message Mr. Morrison had ... given the girls before because it was of vital
interest what he had to say."
The undersigned on all the evidence and because he considers Younger to be an honest
witness accepts her version of the conversation as the more accurate and therefore credits her
testimony.
Concluding Findings on the "Temporary" Closing of the Malden Plant
The undersigned finds that in October 1951, by a process of laying off its employees be-
ginning October 4, the Respondent closed its plant for the purpose of influencing its employees
in their choice of a bargaining representative and that by such conduct the Respondent has
interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act.
5. The permanent shutdown at Malden, the alleged sale and succeeding events
As found herein the election duly held October 31, 1951, resulted in the selection of the Union
as their bargaining representative by the employees.
On November 7, the Union by letter requested a bargaining conference with the Respondent.
On November 8, the Respondent notified its landlord, the city of Malden, that it did not intend
to reopen the plant, closed in October.
On November 12, the Respondent by letter refused to bargain with the Union, and has at all
times since so refused.
Likewise on November 12, the Respondent by letter notified its laid-off employees "that the
factory here has no plans to reopen. The fixtures and equipment in the plant have been sold."
(Emphasis supplied.)
Morrison advanced two reasons for the Respondent's decision to make the "temporary"
shutdown permanent. First, because the building was unsuitable, being "too hot in summer and
too cold in winter."
ti A general analysis of Jones' testimony together with the undersigned's estimate of his
general credibility appears at a later point in this report.
13 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent moved into the "air base plant "July 10, 1951 . The building was rented from
the city of Malden which was required to condition it. The record is clear that during the
summer the city of Malden installed fans of various kinds under the Respondent 's direction.
It is also clear that the winter -heating equipment was being installed at the time of the shut-
down in October . At the time ofthehearing the Respondent was still paying rent to the city for
the building which seems strange if the city defaulted on its obligation , and more than strange
in view of the Respondent 's second contention for ending its Malden operation , namely , that its
operations at Malden resulted in a serious loss.
Morrison testified that "the decision was made not to reopen the plant after we received
operational figures on the performance during the period from when it commenced to the time
it closed down." He further testified this was "in the early part of November," and that at
the time of the "Halloween party"(October 29) the Respondent was not aware of its operational
loss.
Aubre Jacobs testified that he is a member of a firm of accountants in Chicago. Illinois; that
on May 9 , 1952, he submitted an audit to the Respondent of its Malden operation as made by
himself; that the firm was employed to make this audit "perhaps a week or ten days prior to
that date " (May 9); that the Respondent did not make all its books and records available to
him, but that he relied on statements made to him by the Respondent and the report was based
in part on "what the factory would have earned had the company been selling to outsiders."
Morrison, in answer to questions by the undersigned , testified as follows:
Q. Did you hear Mr. Jacobs testify with respect to the Respondent's Exhibit No. 1,
which is the audit that he made?
A. Yes, sir, I did.
Q. Did you hear him testify that the date on that audit was May 9, 1952.
A. Yes, sir, I did.
Q. And did you hear him testify that the request for that audit , and that audit , was made
ten days, not more than ten days, prior to the May 9 , 1952 date?
A. Yes sir.
Q. And did you hear me ask him at least twice whether that was so and he gave me an
affirmative answer?
A. Yes, sir.
The undersigned then further questioned Morrison, the question and answer being:
Q. And do you remember testifying that after you had made that audit you then decided
to sell the plant or close it?
A. Yes, sir, I did.
Attorney Blanton (for Jones) without objection then examined Morrison:
Q. (By Mr. Blanton) Did you confer with anyone subsequent to the closing of the plant
with reference to your operational costs?
A. Yes , sir; my brother came down and asked for the records on the production and the
cash disbursements concerning that production at the Malden plant and he reviewed them
and --
Morrison further testified that he and his brother "reviewed" the books together and found
that the Malden plant showed a loss. Also without exception by the General Counsel , Morrison
testified as follows:
Q. (By Mr . Blanton) Is that the report that your brother gave you , is that the report
that you testified to as having received the first day upon which you cattle to your own
conclusion to close the plant that the Trial Examiner interrogated you about awhile ago?
# * #
A. What is the question
TRIAL EXAMINER PLOST: Read the question.
The question was did you base decision , what it means , did you base this decision to get
rid of the Malden plant on your brother's survey of your books?
NEW MADRID MANUFACTURING COMPANY 137
A. Absolutely.
Q. (By Trial Examiner Plost ) And you didn 't base it, then , on any audit that you talked
about in your first - -
A. (Interrupting) I based it on his audit.
Q. On his audit?
A. His audit.
Clearly in no event could the Respondent have based its decision to close its plant in "early
November" on an audit ordered sometime the following May.
The undersigned does not credit Morrison's testimonyt = to the effect that the Respondent
closed its plant at Malden . Missouri , because the plant was operating at a loss, or that it was
closed because of weather conditions , or both, and finds that the Respondent did not close the
Malden plant for the reasons it pleaded as advanced at the hearing.
Morrison further testified that sometime in mid-November he told Jones the plant would
not reopen and the machinery was "up for sale "; that Jones "in turn came to me and asked if
he could buy the equipment "; that thereafter on a date in November 1951, which he did not
fix, he visited Portageville , Missouri, which is 31 miles from Malden and about 15 miles from
New Madrid , the location of the Respondent 's principal plant, together with Jones ; that at
Portageville he and Jones negotiated with representative Portageville businessmen at a meeting
arranged in a theatre regarding the setting up of a plant by Jones; that Jones had not yet pur-
chased the Malden plant machinery and did not in fact decide to buy it "until a week or two
after that , towards the end of the month"; that he made only one trip to Portageville with Jones.
Morrison did not fix the date of this meeting in Portageville which becomes confused be-
yond clarification byreason ofanaffidavitis madebyMorrison whichfixes the dateasNovem-
ber 26, and a letter dated November 12 and addressed to the employees which announces the
sale of the equipment, and an advertisement in the "Portageville Review " under date of
November 8 , which advertises "Help Wanted" for the Jones Manufacturing Company.
Jones admitted he was consulted by "the committee " as to the wording of this advertise-
ment.
The undersigned asked Morrison , "Is it your testimony that prior to this time that you went
there with Jones you had not talked to any of the merchants or groups of businessmen, in
Portageville about moving a plant down there , or getting a plant for them . You can answer
that yes or no."
Morrison testified:
A. I will, Mr. Examiner , until I search my mind thoroughly. I cannot answer it. Prior
to Mr. Jones and I going down there I was never in Portageville contacting anyone con-
cerning the plant there . That is what you want to know?
Q. That is right.
A. Right.
Almost immediately Morrison changed his testimony to the effect that people from Portage-
ville and other towns had "come up to see me with a view to work getting industry in there."
He then testified as follows:
Q. Didn't you just testify that prior to the time you went down with Mr . Jones to
Portageville you had not talked to any group of businessmen or any group of individuals
or this club or whatever it is, council, regarding putting a plant similar to yours into
Portageville?
A. I testified , Mr. Examiner , that I did not talk to anyone in Portageville concerning
that.
Q. You mean the people from Portageville . Then by that statement I am to understand,
then, it means only that those people from Portageville came to where you were outside
of Portageville and there you talked to them about the plant , is that your testimony?
A. That's right, Mr. Examiner.
Harold Jones , who was the Respondent 's plant manager at Malden throughout its opera-
tions there , testified that he was first employed by the Respondent in June 1950; that he had
no prior experience in manufacturing; that he had no experience in soliciting business; had
no acquaintance in trade; and that he did not know the value of the machinery in the Malden
plant.
"An analysis of Morrison's testimony together with the undersigned 's evaluation thereof
appears later herein.
IS Used as probative evidence . See Trafford Coach Lines , 99 NLRB 399.
13 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jones further testified that on a date which he could fix no more definitely than "sometime
in the first of November," he learned from Morrison that the machinery would be sold
and told Morrison he "was interested" in its purchase. Morrison, in his testimony, admitted
he knew Jones "had no money."
According to Jones he asked Morrison to go with him to Portageville ; however , the record
does not disclose where and howJones received any information which prompted him to seek a
location there for his proposed enterprise. Jones testified:
Well. sir, I wasn't very well acquainted with the community down there and wasn't too
well acquainted with the established manufacturing plants, and I asked the assistance of
Mr. Jerome Morrison.
Jones further testified that he and Morrison made two trips to Portageville to negotiate with
the local businessmen and that hisdecisiontobuy the machinery was not made until after these
negotiations were completed.
The undersigned has found that Morrison was confusing in his testimony with respect to the
time of the purchase of the machinery by Jones and the negotiations in Portageville . Jones'
testimony with respect to these dates is not confusing , it is an absolute blank . Jones refused
to fix any dates . All attempts to make definite the dates of the Portageville meetings brought
merely Jones ' statement that he could not recall the dates , which should be important in his
life as fixing his passing from the rank of an employee to the status of an entrepreneur.
Jones testified that on the first triphemade with Morrison they met "about every merchant
in Portageville "; that the group was assembling in the theatre when he and Morrison arrived;
that he did not know "who got the meeting together "; that he "probably said a few words";
that "Mr . Morrison made a talk " because he had asked Morrison "to negotiate for me be-
cause I was green in the racket "; that the meeting lasted "something like an hour," that
thereafter he and Morrison met with the Portageville merchants again in a meeting of less
than 2 hours ' duration ; that at this meeting "Well, I did some talking on the matter there and
Mr. Morrison , we were explaining to them ." Jones did not fix the date of either meeting.
As a result of these negotiations Jones and the Portageville merchants entered into an oral
agreement , later carried out by the Portageville group , whereby a labor survey was conducted,
advertisements inserted in the local papers in Jones ' behalf, and Jones was given a building,
rent free for 1 year.
Following the Portageville agreement , according to Jones' testimony , he decided to buy the
machinery at Malden and set up a factory in Portageville.
Under date of November 28, 1951 , the Respondent and Jones entered into a purported agree-
ment of sale whereby the Respondent under certain terms and conditions sold and transferred
the Malden plant 's machinery to Jones for use in Portageville , agreed to furnish Jones with
work and finances and Jones in turn agreed to do work for the Respondent also subject to cer-
tain terms and conditions.
At the same time a conditional bill of sale for the machinery in accordance with the terms of
the above- Inentioned agreement was signed.
Under the agreement the Respondent is to deliver the machinery to Jones for the sum of
$8,487 , payable at the rate of $50 principal and $21 . 25 interest , monthly.
It is provided further that "no prepayment privileges are accorded second party ." (Jones)
Title to the machinery , together with all future replacements thereof, does not pass , but re-
mains vested in the Respondent until the purchase price is fully paid. 14
Jones agrees to confine his production to work furnished him by the Respondent and not to
accept other work unless granted permission to do so in writing by the Respondent. i5 The
Respondent agrees to finance Jones ' operations and had done so. Jones is permitted by the
contract to draw $50 weekly. If he should desire a greater sum from his business he must
first obtain the written consent of the Respondent. is
Jones is to pay all taxes, insurance , license fees , and charges and is to keep the machinery
in repair.
The contract contains the following clause:
Should the second party fail to keep and perform any of all his agreements herein con-
tained , and to promptly pay, when due , any and all sums provided for hereunder , or should
i4Under the contract Jones could not acquire title to the machinery in less than 14 years.
15The record shows that since the Portageville plant began operations Jones has had but
one "outside" job amounting to $349.33. This order was procured for Jones by the Respond-
ent's president.
is It is interesting to note that Jones ' salary at Malden was $50 per week.
NEW MADRID MANUFACTURING COMPANY 139
second party remove or attempt to remove the said machinery , supplies , or equipment,
and attempt to lend , sell, or incumber said machinery and equipment , or whenever the
first party or his assigns shall deem the debt herein provided insecure said first party
may, without demand or notice , takepossession ofsaid machinery and equipment wherever
found and without process of law, and all rights of the second party hereunder shall cease
and terminate thereupon absolutely. Party of the second part does hereby waive any right
of action against seller growing out of the removal , repossession , or retention of said
machinery and equipment or otherwise , and hereby consents that and expressly agrees
that all payments made shall belong to and be retained by the first party as liquidated
damages for the nonfulfillment of this agreement and for the rental value thereof.
Conclusions as to the "Contract of Sale"
The undersigned cannot be persuaded that a "contract" which purports to bind one party to
work only for another , who in turn may cancel the agreement at will , without notice or com-
pensation for any acquired equity , created by money payment or lapse of time, should it deem
the payment of a debt set up under the contract to be insecure, (although the debt is payable in
small installments over a 14-year period without the right of prepayment) is a real agree-
ment, The undersigned believes the contract shows on its very face that it is only a sham de-
signed to cover something not apparent in the agreement. 17
The undersigned , on all the evidence considered as a whole and from his observation of the
witnesses while testifying , finds that the purported agreement signed by the Respondent and
Jones at New Madrid , Missouri , on November 28, 1951 , is not a real contract , that it was not
intended to divest the Respondent of its title to the Malden plant machinery and did not do so,
that it was not intended to make Jones independent of the Respondent as the owner of a business
in Portageville , Missouri , operating under the name of Harold Jones d/b/a Jones Manu-
facturing Company, and did not do so, and that said contract is a sham, and void as a defense
to any of the allegations of unfair labor practices alleged in the complaint.
The undersigned further finds that the Respondent did not legally divest itself of the machin-
ery of the Malden plant and that the Respondent wholly controls the operations, and that the
Respondent is in fact the owner , of that business operating at Portageville , Missouri, under
the style and name of Harold Jones d/b/a Jones Manufacturing Company.
The Malden plant machinery was removed to Portageville , where operations similar to those
carried on previously at Malden were actually begun on December 26, 1951 , under the style
and name of Jones Manufacturing Company.
Advertisements for help were inserted in the local paper, according to Jones, by the "com-
mittee." It has been found that one such advertisement appeared November 8 Jones did not
employ any of the employees laid off at Malden.
Rachel House, one of those laid off at Malden , testified credibly without contradiction, that
she applied for work at Portageville before the plant opened ; that Jones told her "he would
let her know "; that she later wrote Jones asking for work and was never called or offered
work at Portageville.
Jones also admitted that he prepared an application for employment given to all applicants
at Portageville, which application inquired into the union membership of the applicant.
Jones also admitted he had full knowledge of the fact that the Union had won the election
October 31.
Jack Kinder, 18 a member of abusinessmen's club in Malden, testified to a conversation with
Jones, as follows:
In the course of the conversation I asked him the reasons for the company moving to
Portageville and he said "Well , the people over there are going to cooperate in keeping
the union out. "
17Jones testified that he is now 24 years old and has a very limited business experience. As
it is within the realm of the possible that Jones actually believes himself bound by an agree-
ment which creates obligations cancellable at will by the Respondent from which Jones cannot
escape , but is bound to work for the Respondent at his present fixed "drawing account," the
undersigned, in all kindness, directs Jones' attention to the Thirteenth Amendment to the
Constitution of the United States as a possible means of escape should he ever desire to free
himself of the burden of his "obligation."
18 Kinder was a reluctant witness . He evaded answering questions , finally stated , "I am here
under protest ," and in effect stated that he did not care to testify against Jones. The under-
signed then made the following statement , after which Kinder testified.
TRIAL EXAMINER PLOST: Mr. Witness, I want to impress this on you. I know that
you live in this community. I know that you are undoubtedly a friend of Mr. Jones. you
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Credibility
The undersigned has credited the testimony of all witnesses called by both the General
Counsel and the Respondent with two exceptions . In some instances specific findings of credibil-
ity have been made, in others where the testimony was not in dispute or merely corroborative
the findings on the evidence show the credit given the witness. The undersigned has not credited
the testimony of Morrison or Jones with respect to many vital matters. Morrison and Jones
were evasive witnesses. Their testimony is largely self-contradictory, as shown by the analysis
thereof as made in this report . The undersigned on the entire record , including his observa-
tion of the witnesses , does not believe either Morrison or Jones to be truthful witnesses
worthy of credence.
Conclusion
Having found that the purported sale of the Malden plant machinery by the Respondent to
Jones was not a valid sale but a sham to evade the Respondent's unfair labor practices, and
having found that the Malden plant was closed and the employees laid off in October 1951 in
order to combat the Union, and having found that the plant was moved to and set up in Portage-
ville not as an independent business ofHaroldJones but as an integral part of the Respondent's
business, the undersigned now therefore finds that the Respondent locked out its employees at
Malden by laying them off and closing the plant in October 1951, as herein found, and that by
such acts it discriminatorily discharged said employees. Upon all the circumstances in the
case, the record considered as a whole, and his observation of the witnesses, the undersigned
is convinced and finds the contention of the General Counsel that said employees were dis-
charged because of their membership in and activities on behalf of the Union, is well sustained
by the evidence and therefore finds that the Respondent discriminatorily discharged them in
violation of the Act. i9
The undersigned further finds that by said illegal conduct the Respondent has discriminated
in regard to the hire and tenure of employment of its employees, has discouraged membership
in a labor organization , and has interfered with, restrained , and coerced its employees in the
exercise of rights guaranteed in Section7ofthe Act, more particularly Section 8 (a) (3) there-
of. m
The undersigned has made no determination of Jones' business as affecting interstate com-
merce, as he believes and finds that Jones and the operation at Portageville, Missouri, under
the name of Jones Manufacturing Company, is really the operation of the Respondent.
The Proposed Findings and Conclusions
Jones filed 11 proposed findings of fact and 7 proposed conclusions of law with the under-
signed . All are rejected.
The Respondent filed seven proposed findings of fact. The undersigned accepts those num-
bered "2" and "3 " and rejects all others. The Respondent also filed five proposed conclusions
of law . The undersigned accepts the one numbered "3 " and rejects all others.
Final Conclusions
Upon all the foregoing, the entire record, the evidence considered as a whole, and his obser-
vation of the witnesses, the undersigned finds that:
perhaps have an interest of a friend in this thing, but this is a matter that is called in the
public interest, you have a duty as a citizen to tell the whole truth as you recall it and
nothing but the truth no matter what your friendship or relationship is with anyone
connected with this case. You are a sworn witness. I think you understand what I mean
by that. Now you answer these questions. You may proceed, Mr. Kennedy.
19 Undoubtedly some of those laid off were not members or active on behalf of the Union,
however, as such employees were included in the lockout the coercive effect on the employees
is the same as if they were union adherents. See Capital City Candy Co., 71 NLRB 447.
20 Assuming arguendo that Jones believes himself bound by a valid contract and further as-
suming the contract to be valid, Jones would still be liable to the Union and the discriminatees
inasmuch as (a) he took with full knowledge of the Respondent's obligations to the Union
and the discriminatees, having in fact participated in the Respondent's unfair labor prac-
tices (see The L. B. Hosiery Co., Incorporated, 88 NLRB 1000), and (b) his operations are
clearly under the complete control of the Respondent. (See N.L.R.B. v. Somerset Classics,
Inc., et al., 193 F. 2d 613 (C.A. 2).)
NEW MADRID MANUFACTURING COMPANY 141
1. By Harold Jones' statement to Rachel House, to the effect that the plant would close and
be moved away if the Union succeeded in organizing the Respondent's employees, his similar
statements to Nora Skaggs and DollieKing, his statement to Betty Jo Younger to the effect that
the cutters would not furnish work for a union plant and Jones ' interrogation of Mildred Canady,
Geraldine Corder, and Betty JoYounger, and byRuth McCarver' s statements to Tylene Butler,
and by Jerome Morrison's speech to the employees at the Halloween party on October 29, and
by Jones' inquiries into the union membership of applicants for employment at Portageville,
all as hereinabove found, the Respondent has interfered with, restrained , and coerced its em-
ployees in the exercise of rights guaranteed in Section 7 of the Act.
2. By locking out and discharging its employees whose names are set forth in Appendix A
hereto, which is made a part hereof, on the dates set opposite their names the discrimination
dating from the day of the layoff, as herein found , the Respondent has discouraged membership
in a labor organization by discrimination in regard to the hire and tenure of employment of
said employees in violation of Section 8 (a) (3) of the Act.
3. By refusing to bargain with the Union as found in section A 1 and 2, above, the Re-
spondent has restrained and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act, and has more particularly violated Section 8 (a) (5) thereof.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in connection with
the operations of the Respondent set forth in section I, above, have a close , intimate, and sub-
stantial 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 unfair labor practices , the undersigned will
recommend that it cease and desist therefrom and take certain affirmative action to effectuate
the policies of the Act.
Since it has been found that the Respondent has refused to bargain collectively with the Union,
the statutory representive of all employees inanappropriate unit, it will be recommended that
the Respondent bargain collectively with the Union and embody any understanding reached in a
signed agreement.
Since it has been found that the Respondent has discriminatorily locked out and discharged
employees whose names appear on Appendix A hereto, it will be recommended that the Re-
spondent offer to all of them immediate and full reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority or other rights and privileges, and
that each be made whole for anylossof pay they may have suffered by reason of the dis-
crimination against them , by payment to each of them of a sum of money equal to that which
each would normally have earned as wages from the date of the discrimination to the date of
the Respondent 's offer of reinstatement , less their net earnings during such period . n The back
pay shall be computed in the manner established by the Board , 22 and the Respondent shall
make available to the Board its payroll and other records to facilitate the checking of amounts
due.
Inasmuch as effectuation of the policies of the Act is achieved by restoration insofar as
possible of the status quo existing prior to the commission of the unfair labor practices; and
as it has been found that the Respondent closed its Malden . Missouri, plant and transferred
its Malden operations to Portageville in order to discourage membership in the Union and
thwart the Union in its legal right to bargain collectively for the Respondent 's employees
within an appropriate unit; and as it has been found that the closing of the plant at Malden and
the subsequent transfer of the Respondent 's operations at Malden to a new plant at Portage-
ville constituted an unfair labor practice , the undersigned believes and will recommend that
the status quo can be restored by either of the following means:
(a) Resume operations at Malden . Missouri, and at such plant offer reinstatement to the em-
ployees listed in Appendix A. and otherwise make them whole as herein recommended.
(b) Offer said employees reinstatement and equivalent employment at its plant in Portage-
ville , and pay the expense of removing their families and household effects to Portageville,
or compensate them for any expenses they will incur by their daily commuting from their
present homes to Portageville, and further make them whole as herein provided.
21 Crossett Lumber Company , 8 NLRB 440.
22 F. W. Woolworth Company, 90 NLRB 289.
14 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned will shape his recommendations so that the Respondent may at his election
expressed in writing to the Regional Director for the Fourteenth Region, offer said employees
listed in Appendix A reinstatement at Malden , Missouri , or at Portageville , Missouri. If re-
instatement is at Portageville , employees hired at the Portageville plant since it was opened
shall be discharged if necessary to provide employment for said discriminatees.
Since it has been found that the Respondent did not illegally discharge Lena Livingston and
Eris Stricklin, the undersigned will recommend that the complaint be dismissed insofar as it
so alleges.
The character and scope of the unfair labor practices engaged in by the Respondent indicate
an intent to defeat self-organization -of its employees . It will therefore be recommended that
the Respondent cease and desist from ' in any manner interfering with , restraining, and co-
ercing its employees in the exercise of the rights guaranteed by the Act.
Upon the basis of the above findings of fact and upon the entire record in the case , the under-
signed makes the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent , New Madrid Manufacturing Company , constitute trade,
traffic , and commerce among the several States within the meaning of Section 2 (6) and (7) of
the Act.
2. The operation at Portageville , Missouri , under thestyleand name of Harold Jones d/b/a
Jones Manufacturing Company , is the operation of the Respondent , New Madrid Manufacturing
Company , New Madrid , Missouri.
3. International Ladies ' Garment Workers Union , A.F.L., is a labor organization within the
meaning of Section 2(5) of the Act and admits employees of the Respondent to membership.
4. All production employees employed in the Respondent 's plant at Malden , Missouri, on
the payroll of said plant for the period ending September 29, 1951, excluding executive, office,
and clerical employees , foreladies , foremen , supervisors , watchmen , guards, and all other
employees excluded under the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 ( a) of the Act.
5. International Ladies' Garment Workers Union . A.F.L., was on November 12 , 1951, and
at all times thereafter has been , and now is, the exclusive representative of all the employees
in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9
(a) of the Act.
6. By refusing on November 12, 1951 , and at all times thereafter , to bargain collectively
with the above- named labor organization 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.
7. By discriminating in regard to the hire and tenure of employment of the employees listed
in Appendix Ahereto , thereby discouraging membership in a labor organization , the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
8. The aforesaid unfair labor practices are unfair labor practices within the meaning of
Section 2 (6) and ( 7) of the Act. .;
9. The Respondent has not engaged in unfair labor practices by discharging Lena Livingston
and Eris Stricklin.
[Recommendations omitted from publication.]
APPENDIX A
NEW MADRID MANUFACTURING COMPANY
List of Girls Discharged at Malden , Missouri
Date
Name Discharged Name
Date
Discharged Name
Date
Discharged
Edna Alexander 10/4 Eva Teeters 10/5 Ada Warren 10/12
Geraldine Jerry Corder 10/4 Gladys Holcomb 10/5 Pauline Warren 10/12
Rachel House 10/4 Mae Ceile Blade 10/5 Elsie Bridgeforth 10/12
Blanche Galloway 10/4 Thelma Harris 10/5 Billy McKinsey 10/12
Lela Collison 10/4 Louise Losh 10/5 Letty Jones 10/12
Winme Smith 10/4 Tylene Butler 10/9 Agnes Hardesty 10/12
Mildred Canady 10/4 Nora Skaggs 10/10 Betty Jo Younger 10/12
Cecile Blake 10/5 Loreta Oxley 10/10 Vernice Russell 10/12
Flora Harvel 10/5 Ruth Fields 10/10 Madge Pyle 10/12
Thelma Barton 10/5 Elsie Haywood 10/10 Lura McMunn 10/16
Ollie Mae Gentry 10/5 Dollie King 10/11 Billy Kirkpatrick 10/20
Janice Bennett 10/5 Mildred Irby 10/12