Kiddle Kover Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 31, 1938

6 N.L.R.B. 355 (N.L.R.B. 1938)

In the Matter of ARTHUR L. COLTEN, AND A. J. COLMAN, CO-PARTNERS,
DOING BUSINESS AS KIDDIE KOVER MANUFACTURING COMPANY and
AMALGAMATED CLOTHING WORKERS OF AMERICA
Case No. C-371.-Decided March 31, 1938
Children's Garment Manufacturing Industry-Interference, Restraint, and
Coercion: speeches and threats to persuade employees to refrain from joining
union; circulation of anti-union petition-Unit Appropriate for Collective Bar-
gaining: all production employees; admitted by employer and not controverted
by company-dominated union-Representatives: proof of choice : applications
for membership in union ; participation in strike called by union-Strike: called
as result of unfair labor practices-Collective Bargaining: refusal to negotiate
with union; loss of union majority as result of unfair labor practices no
excuse for refusal-Discrimination: discharge-Company-Dominated Union:
domination and interference with formation and administration of ; active
solicitation by supervisory employee ; contribution of financial and other support
to; use of employer's attorney for representation; disestablished as agency for
collective bargaining-Reinstatement Ordered: of discharged employee; upon ap-
plication, of striking employees-Back Pay: awarded to discharged employee ;
ordered to employees whose applications for reinstatement are refused by
employer.
Mr. George J. Bott, for the Board.
Mr. Leo C. Lillie and Mr. Howard W. Fant, of Grand Haven,
Mich., for the respondents and the Association.
Mr. Charles E. Misner, of Grand Haven, Mich., for the Union.
Mr. Howard Lichtenstein, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges and amended charges having been filed by Amalgamated
Clothing Workers of America, herein called the Union, the National
Labor Relations Board, herein called the Board, by Frank H. Bowen,
Regional Director for the Seventh Region (Detroit, Michigan), issued
and duly served its complaint dated September 20, 1937, against
Arthur L. Colten and A. J. Colman, co-partners,l doing business as
Kiddie Kover Manufacturing Company, Grand Haven, Michigan,
herein called the respondents, alleging that the respondents had en-
gaged in and were engaging in unfair labor practices affecting com-
IIn the complaint their names are incorrectly spelled "Colton " and "Coleman."
355
356 NATIONA L LABOR RELATIONS BOARD
merce, within the meaning of Section 8 (1), (2), (3), and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. With respect to the unfair labor practices, the
complaint alleged that the respondents had intimidated and coerced
their employees to discourage their joining the Union; had dominated
and interfered with the formation and administration of Kiddie
Kover Employees' Association, herein called the Association, a labor
organization of their employees; had discharged an employee because
of her Union membership ; and had refused to bargain collectively
with the Union as the representative of the majority of their employees
in an appropriate unit. On September 28, 1937, the respondents filed
their answer to the complaint, denying that they had engaged in the
unfair labor practices alleged therein and denying that their business
affects commerce within the meaning of the Act, although they ad-
mitted that the great majority of their purchases and sales are made
in interstate commerce. Admitting the appropriateness of the unit
for the purposes of collective bargaining and their failure to bargain'
with the Union after April 6, 1937, they denied that the Union repre-
sented a majority of employees in the unit at any time after that date.
The respondents' answer set forth various other allegations and ad-
missions which are considered below in the discussion of the unfair
labor practices.
Pursuant to notice, a hearing was held in Grand Haven, Michigan,
from October 4 to October 7, 1937, before Robert M. Gates, the Trial
Examiner duly designated by the Board. The Board, the Union,
the respondents, and the Association, whose motion to intervene
was granted by the Trial Examiner, were represented by counsel
and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon
the issues.' At the conclusion of the hearing both the respondents
and the Association filed memoranda on the evidence adduced at
the hearing.
On January 11, 1938, the Trial Examiner filed his Intermediate
Report, in which he found that the respondents had engaged in and
were engaging in the unfair labor practices alleged in the com-
plaint. He accordingly recommended that the respondents cease
and desist from engaging in the unfair labor practices, that they
bargain collectively with the Union as the representative of a
majority of the respondents' production employees, that they cease
giving recognition to the Association as such representative, and
that they reinstate with back pay the employee found to have been
discriminatorily discharged.
Thereafter the respondents and the Association jointly filed ex-
ceptions to the Intermediate Report and to. various rulings of the
2The respondents and the Association were represented by the same counsel
DECISIONS AND ORDERS 357
Trial Examiner . In addition , they filed a brief in support of the
exceptions, which the Board has considered. The Board has re-
viewed the rulings of the Trial Examiner on motions and on objec-
tions to the admission of evidence and finds that no prejudicial
errors were committed . The rulings are hereby affirmed. The Board
has also considered the exceptions to the Intermediate Report and
finds them to be without merit.
Upon the entire record in the case, the Board makes the follow-
ing :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The respondents , a partnership composed of Arthur L. Uolten
and A . J. Colman, are engaged in the manufacture and sale of chil-
dren's garments in their factory at Grand Haven, Michigan, where
they employ between 50 and 90 production workers.' The chief raw
material used in their operations is cotton chambray . The respond-
ents stipulated that during the 18-month period ending June 1937,
raw materials valued at $138,535.35 were shipped to their plant from
points outside the State , and that for the same period they shipped
manufactured products valued at $273 ,205.39 outside Michigan. The
respondents further stipulated that these figures represent approxi-
mately 95 per cent of their total purchases and sales , respectively, for
the-period.
H. THE ORGANIZATIONS INVOLVED
Amalgamated Clothing Workers of America is a labor organization
affiliated with the Committee for Industrial Organization , admitting
to membership the production employees of the respondents.
Kiddie Kover Employees' Association is an unaffiliated labor or-
ganization in which any employee of the respondents is eligible for
membership.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
On Thursday , March 18, 1937, a number of the respondents' em-
ployees discussed the desirability of a sit -down strike in order to
secure higher wages. Tentative plans were made for calling the
strike on the following day. On Friday morning, however, when
the employees appeared for work, they found a notice posted on
the door stating that the plant was closed due to lack of materials.
The respondents admit that the notice was a subterfuge and that
-the plant was closed for the purpose of preventing any of the em-
ployees from coming into the plant and engaging in a sit-down
strike. Later in the day several employees consulted Edward Don^i-
358 NATIONAL LABOR RELATIONS BOARD
hue, an organizer for the United Automobile Workers of America,
for advice in organizing the employees. Donahue telegraphed the
Chicago office of the Union, and Sol Kraman, a Union business agent
and organizer, arrived in Grand Haven the next day.
On Saturday morning, March 20, Kraman addressed a meeting at-
tended by about 40 of the respondents' 80 production employees, and
informed them that the Union would represent them if requested.
During the course of the meeting a considerable number of the em-
ployees present, most of whom were girls, signed cards signifying
their desire to join and be represented by the Union.
Following the meeting, Kraman and Donahue conferred with
Richard L. Cook, mayor of Grand Haven, and asked him to arrange
a conference with A. J. Colman, who presumably was returning from
New York on that day. Cook stated that Colman had not yet re-
turned and that Colten was in Europe. Shortly thereafter, how-
ever, he arranged ' for a meeting, and the same afternoon Kraman
and Donahue met Colman, Cook, and Osterhaus, the respondents'
attorney, in the laLter's office. General working conditions were dis-
cussed, but when Colman stated that he could not negotiate with
the Union in the absence of his partner, the conference was adjourned.
Early in the evening, Kraman, attended another meeting with a
larger group of employees than had attended the morning meeting.
More membership applications were signed, and the meeting was
temporarily adjourned while Kraman and Donahue again attended a
conference with Colman and Osterhaus, at which Colman signed the
following agreement :
I agree that if the garment workers employed by the Kiddie
Kover Manufacturing Company, a partnership composed of
Arthur L. Colten and Abe J. Colman, will return to work Mon-
day, March 22nd 1937, and continue to work, without further
demonstration or strike in any form, until Mr. Colten returns to
Grand Haven (which I expect will be on or before April 15th
1937) and has an opportunity to negotiate with the Amalgamated
Clothing Workers as their representative, that if and when any
agreement is reached with said representative as to wages same
shall be given effect from and after March 22nd 1937 as though,
made on that date, and that, in the meantime all of said workers
shall be given employment without any discrimination against
any on account of union activities and the working week shall
be reduced to forty hours.
Kraman reported back to the employees who accepted the agreement
and selected four girls to act as a shop committee for the Union.
Kraman thereupon returned to Chicago.
DECISIONS AND ORDERS 359
In accordance with the agreement, the plant was reopened on
Monday, March 22, and all of the employees returned to work.
Although Colman had signed the above agreement, it soon became
manifest that the respondents had no intention of negotiating fur-
ther with the Union, or of permitting their employees to join. They
immediately set forth upon a campaign of intimidation and coercion
in an effort to destroy the Union which, in the short space of 3 days
had attracted a majority of their employees. On Monday a yellow
sheet of paper in the form of a petition was in evidence around the
plant. Although Christina Behm, an employee, testified that she was
responsible for its circulation, she admitted that Matilda Bauer, the
floorlady, had prepared the heading which read as follows :
We the undersigned do not want the Union. We believe Mr.
Colton and Mr. Colman will give us a square deal.
Although Mrs. Bauer denied that she had initiated the petition,
the evidence is clear that she was active in obtaining signatures by
calling the attention of the girls to it and advising some of them to
sign it. It is certain that she was one of the sponsors of this anti-
union petition, and it is a reasonable assumption that she was one of
the instigators of it.
On Tuesday morning, March 23, Colman called to his office the
Union shop committee, several non-union girls, and Mrs. Bauer, in-
vited them to discuss grievances, and spoke at some length against
the Union. According to Vera Marvel, who was present as a member
of the Union committee, Colman stated that "he would be damned
if he would have a union shop."
During the course of the next few days, events occurred which have
been given conflicting interpretations by the Union and the respond-
ents. Several of the girls who had been active in soliciting employees
to join the Union continued their efforts. The respondents contend
that this activity was in violation of the agreement signed on the
previous Saturday which provided that the employees would "con-
tinue to work without further demonstration or strike in any form."
The respondents failed to show, however, that Union solicitation was
carried on in a manner that amounted to a breach of the agreement,
and its contention is not borne out by the record. In any event Col-
man, who was apparently apprehensive of the growing Union strength,
called meetings of the employees during working hours, advised them
against joining the Union, and berated several employees whom he
accused of coming to work early in the mornings in order to solicit
employees for the Union. He stated that the employees had "stabbed
him in the back" by causing trouble while both he and Colten were
absent from the city and warned them that the respondents would
8 As introduced at the hearing, the petition bore the signatures of 53 employees
80618-38-vor.. VI-24
360 NATIONAL LABOR RELATIONS BOARD
go out of business rather than have the Union in the plant. Although
witnesses for the respondents denied that statements of this latter
character were made, several of them testified to hearing Colman say
that the plant could not and would not be run as a "closed shop."
Although a closed-shop proposal may have been made by Kraman on
March 20, it is clear that he did not insist upon it. Even though we
accept the respondents' version of Colman's remarks, it is equally
clear that Colman used his position on the closed shop to cloak his
attempt to break the Union. The antagonistic nature of Colman's
speeches to the employees. plainly appears in an allegation contained
in the respondents' answer to the complaint in this proceeding.
Respondent, Abe Coleman, having been informed of the con-
duct of the union committee occurring on March 22, 1937, as
hereinbefore set forth, called a meeting of employees on that
day, and attempted to talk to them, and, subject to heckling
interruption by union committee members, in substance, said :
That it did not make him feel any too good to know this labor
demonstration had commenced during both Mr. Colten's and his
absence from the city, particularly when they had no knowledge
of any grievances their employees had, as none had been pre-
sented to either Mr. Colten or himself; that in agreeing to take
everybody back to work it was understood there were to be no
further union demonstrations or activities until after Mr. Col-
ten's return from Europe; that he had nothing against the
union, but that it did not seem to him fair to cause labor trouble
during the absence of both Mr. Colten and himself ; that Vera
Marvel, Alice Ruch, Florence Sabo, and Mary Gribb [members
of the Union committee] had deliberately come down to the
plant that morning to threaten and intimidate employees to join
the union : (interruption by Vera Marvel: "You are a damn
liar", whereupon Abe Coleman sent for her card and proved that
she checked in early at 7 o'clock, although the work ordinarily
is commenced at 8 o'clock) ; 4 that, if given a chance, Mr. Colten
and he would always meet their employees, and had never re-
fused to do so, and they could iron out their own differences ;
that before just joining any organization they should stop and
think it over, and be sure of what they were joining and what
they were joining for; (interruption by Vera Marvel: "You
can't call your employees together and talk to them like this,
you have no business doing it, the law won't let you") ; that
pending the return of Mr. Colten, and thereafter, there was to
be no further union activity in the plant on company time as
had taken place that morning.
4 The evidence shows that Miss Marvel came to work at 7 : 35 a m on that day.
DECISIONS AND ORDERS 361
The record conclusively establishes that the respondents were op-
posed to the Union organization of their employees, and that Col-
man's speeches were calculated to and did discourage their union
activities. In the light of the respondents' own admissions, their
denial of the intimidatory character of Colman's words cannot be
taken seriously.
On April 2 Colman called the employees from their work and
conducted a secret ballot which contained the following alternative
propositions :
Do you favor Mr. Colten or Mr. Colman negotiating with you
direct on the questions of your wages and hours of work? or'
Do you favor their negotiating those questions with the Amal-
gamated Clothing Workers as your representatives?
Later in the day, Colten, who had just returned from Europe, ad-
dressed the employees, saying that he was sorry that the employees
had taken advantage of his absence but that he had good news for
them. He then announced that the ballots had been counted, the
result being 53 in favor of dealing with the management, individu-
ally, and 21 in favor of being represented by the Union. At the
same time he said that since there were complaints, he and Colman
had decided "to go the limit" in granting raises and invited each of
the employees to come to his office on the following morning to
discuss her wage rates. A number of employees did go to the office
on the following day, Saturday, April 3, and on Monday, April 5.
Dorothy Smith testified that when she went to the office to discuss
her wages with Colten, "he just tried to strengthen his arguments
in favor of himself instead of the union . . . he said something
about if we all stuck together with the company that we could
settle the matter satisfactorily."
After the election had been held, some of the employees informed
Donahue, who communicated with Kraman, and on April 5 Kraman
returned to Grand Haven. At a conference with Colten, Colman,
Cook, Donahue, and Osterhaus, Kraman voiced his disapproval of the
respondents' actions, asserting that they were in violation of the
agreement signed by Colman on March 20. Both Colten and Colman
responded that since the April 2 vote showed that the Union did not
represent a majority of the employees, they were not required to
deal with the Union. Although some discussion followed with re,
spect to the conduct of another election among the employees, no
definite agreement was reached.
That evening Kranian reported the results of the conference at a
meeting of the Union. The advisability of holding another election
was discussed but the members decided that an election would not
be the proper solution in view of the effectiveness of the respondents'
362 NATIONAL LABOR RELATIONS BOARD
anti-union speeches. Instead, the Union voted to strike, and on the
following day the Union employees went on strike and commenced to
picket the plant. On April 8 the respondents secured a court order
enjoining the striking employees from engaging in picketing or acts
of intimidation or coercion of, the employees who continued to work.
On April 12 a number of Union sympathizers, presumably men from
Muskegon, joined the girls on the picket lines, as a result of which
the respondents closed the plant and sent home the non-striking
employees.
We find that the respondents, by their anti-union speeches, by the
activities of Mrs. Bauer in circulating the anti-union petition, and by
the acts of Colman and Colten, all of which were designed to destroy
Union activity among their employees, have interfered with, re-
strained, and coerced their employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. The formation of the Association
The record does not fully disclose the details attendant upon the
initiation of the Association, although the anti-union petition is
regarded by some of its members as the origin of the Association.
There is testimony , moreover , that Mrs. Bauer, herself a member, was
again active in assisting with the organization work.
The first°meeting of the Association was held at the Ferry Hotel
in Grand Haven on April 14, 1937, after the plant had closed. The
name of the Association was adopted and officers were elected . There-
after, Osterhaus , who was also the respondents ' attorney , prepared
the articles of association . On April 19, upon Osterhaus ' advice, the
Association filed a petition with this Board for an investigation and
certification of representatives , claiming that it represented a ma-
jority of the respondents ' employees. Between April 14 and April
20, 15 Union members signed letters, which had been prepared by
Cloyce J. Clark, president of the Association, stating that they had
been coerced into joining and were then resigning from the Union.
On the same day that the petition was filed by the Association
its members appeared before the city council and, with Mrs. Bauer
acting as spokesman , requested police protection in order to return
to work. The council passed a resolution authorizing the city man-
ager to appoint special policemen. Shortly thereafter some 25 spe-
cial police were appointed , all of whom were recruited from outside
the city by Colonel George Olsen of the Michigan National Guard
whom the city manager had appointed to direct them. On April 28
Olsen addressed a special meeting of the Association, disclosed plans
for the opening of the respondents ' plant 2 days later, and issued
police passes which would permit Association members to pass
DECISIONS AND ORDERS 363
through police lines to the plant. On April 29 an advertisement
prepared by Leo C. Lillie, the respondents' attorney in this proceed-
ing, and signed by Mayor Cook and City Manager Seymour Justema,
appeared in the. Grand Haven Daily Tribune headed "Kiddie Kover
Strike Emergency . . . Instructions for Special Police Officers." On
April 30, with disorder prevailing, the plant reopened.5
As new employees were hired, they were enrolled in the Association.
On May 21 the Association, at a meeting held at the plant, recom-
mended the wages which should be paid the new girls. The minutes
of this meeting are revealing :
The President called a special meeting. It was held during
the last ten minutes of the working day and this time is to be
made up by the members of the association some time in the
future.
The. committee was asked to consult with Mr. Colten concern-
ing new workers who start work from the day, May 21. The
company cannot afford to pay the present rates to apprentices:
The officers of the Kiddie Kover Employees' Assoc. and the com-
mittee to represent the workers recommended a rate which was
received with unanimous approval.
It would appear that the Association was thus functioning as a part
of the management and, at least in this instance, giving unanimous
approval and support to wage reductions.
The minutes of the previous meeting, held on May 7, are equally
indicative of the respondents' domination and support of the Asso-
ciation :
The Secretary read a letter from Mr. Colten concerning the
Wagner 'Act, deciding whether we come under inter-state com-
merce. Our lawyer says we do not. Whether we do or not our
association is legal.
The Secretary was requested to write a letter to Messrs. Colter
and Colman thanking them on behalf of the members in this
association for giving us a square deal during the strike. Also
for the five dollars we received with our checks.
5 The role played by city officials herein throws additional light upon the events that
took place in Grand Haven . Mayor Cook had openly expressed his hostility toward the
Union Although the city council resolution authorized Justema, the city manager, to
appoint the special police, lie merely signed the appointment cards in blank and the
actual appointments were made by Olsen . It should be noted that Olsen , himself,
although he had "strike" experience in Flint, Michigan , where he had served with the
National Guard, was undesirable as leader of these special police to at least one of the
six councilmen
On the night of April 29 , the prosecuting attorney of the county , in a conversation
with Lillie , the respondents ' attorney , and Jarveth N. Clark, Circuit Court Commissioner
of Ottawa County , stated that he would authorize Clark to issue warrants if any trouble
arose on the following day. The next day, without specific authority , Clark signed
three warrants which were prepared in Lillie 's office for the arrest of strikers.
364 NATIONAL LABOR RELATIONS BOARD
Although Osterhaus was willing to use the Association, through a
petition to this Board, in connection with the efforts of the respond-
ents to undermine the Union, one week after the plant resumed oper-
ations the respondents and "our lawyer" insisted that the Associa-
tion was not protected by the Act. The acquiescence of the Associa-
tion to these opinions clearly demonstrates the extent of its domina-
tion by the respondents. It also appears from these minutes that
the respondents gave five dollars to each of its members.
Following the issuance of the complaint herein, Lillie, the re-
spondents' counsel in this proceeding, availed himself of the services
of Cloyce J. Clark, president of the Association, in the preparation of
the respondents' defense to this case. The record indicates that in
exchange for Mrs. Clark's assistance, Lillie undertook to represent
the Association which, upon his advice, intervened in this proceeding.
Such representation of a labor organization by the attorney for re-
spondents in a proceeding before this Board, in and of itself raises
the inference that the labor organization is but the creature of the
respondents.°
We find that the respondents have dominated and interfered with
the formation and administration of the Association, and have con-
tributed financial and other support to it; that by their conduct they
have encouraged membership in the Association and have discour-
aged membership in the Union.
C. The discharge of Mary Kule
Mary Kule was first employed by the respondents in January 1937,
when she was hired as an inspector by Mrs. Bauer. After 2 weeks
of employment she was laid off owing to a shortage of work. She
was reemployed by Mrs. Bauer on March 1, and discharged on March
27, 1937. Miss Kule had joined the Union on March 20 and returned
to work on March 22, following Colman's agreement with the Union.
Although there is some evidence that she was a slow worker, her
testimony that she had never received any complaints about her work
was not denied by the respondents.
Miss Kule's account of the events immediately preceding her dis-
charge was not refuted. Early in the afternoon of March 27, during
working hours, she noticed Mrs. Bauer talking to Miss Van Dyke, a
e Lillie's contentions in his "Memorandum for Intervenor" are not persuasive. "In
preparing this memorandum for Intervenor, . . counsel for Respondent realizes
that he is acting more or less in a Dual capacity . This association has no funds to
engage counsel . . . There is a limited number of experienced attorneys in Grand
Haven to whom intervenor could appeal . . No concealment of this service by
counsel has been attempted , and professional relationship between intervenor and
counsel is mutually thoroughly understood by all pasties No apologies are made, and
counsel must act with Utmost Good Faith " We do not impugn counsel 's good faith. We
find it difficult to believe , however, that the Association would have accepted his services
Had it been free of the respondents ' domination and control.
DECISIONS AND ORDERS 365
fellow employee who was opposed to the Union and who later became
the secretary of the Association . A few minutes afterwards Miss Van
Dyke approached Miss Kule, and in the words of the latter , the follow-
ing conversation took place :
She came up to me and asked me what I was striking for, for more
wages or less hours , and I told her it was not her business. She
told me I had a lot of nerve striking for how much work I did
there, and I told her it i^-as not her business ; that it was up to the
floor lady to tell me whether I did enough work or not , and she
says, "Well, I don't want you to be against the boss," and I told her
that was the boss's affair. She says, "How are you going to pay
your $2 union dues after you are out of a job?" I told her I was
going to worry about that ; she said she wanted to make sure I knew
where I stood, and I told her "I know where I stand, " and she said,
"Yes, in a puddle".
Several minutes later, Miss Kule saw Miss Van Dyke and Mrs.
Bauer again conversing and heard the former repeat jokingly "that
she was not a floorlady ." It is a fair inference that this discussion
related to the previous conversation between Miss Kule and Miss Van
Dyke, especially since it was not denied by either Mrs. Bauer or Miss
Van Dyke, both of whom appeared as witnesses for the respondents.
Shortly thereafter Mrs. Bauer told Miss Kule to go home and that
she would be called when needed . This order was given at 3 o'clock,
approximately an hour and a half before quitting time and while
Miss Kule was inspecting a bundle of garments. She did not finish
with the bundle, but following Mrs. Bauer 's instructions, left
immediately.
The respondents deny that Miss Kule was discharged because she
expressed her preference for the Union , but sought to prove that she
was discharged for inconmpetence . Mrs. Bauer testified that she had
laid off Miss Kule in January because she was a slow worker but had
decided to give her another chance in March; that she again discharged
her on March 27 when she saw no improvement in her work; and that
she did not even know that Miss Kule was a Union member. The
respondents further contend that if they had intended to discriminate
against members of the Union , they would have been more likely to
have chosen active members.
An examination of the record , however, casts serious doubt upon
the validity of the respondents' arguments and destroys the credibility
of Mrs. Bauer's testimony . If Miss Kule had been incompetent, it is
not probable that she would have been rehired in March. In any
event it is reasonable to assume that she would have received some
complaint or warning prior to her discharge and that she would have
been discharged at the close of the business day, either on a pay day
366 NATIONAL LABOR RELATIONS BOARD
or at the end of a pay-roll period.7 Although Miss Kule had not
taken a noticeably active part in Union affairs, the evidence incon-
trovertibly establishes that Mrs. Bauer had knowledge of her Union
affiliation at least after her argument with Miss Van Dyke, in which
she emphatically stated her preference for the Union. Her peremp-
tory discharge, coming during the working day, without giving her
an opportunity to finish the bundle she was inspecting, and immedi-
ately following her vigorous expression of preference for the Union
cannot be characterized as nondiscriminatory. The unusual circum-
stances attendant upon the discharge leave no doubt of the respond-
ents' reason for their action. We accordingly find that the respond-
ents discharged Mary Kule because of her membership in the Union.
D. The, refusal to bargain collectively
1. The appropriate unit
The complaint alleges that all the production workers employed'
by the respondents constitute a unit appropriate for the purposes of
collective bargaining, and the respondents admit this allegation in
their answer. Although the Association, in its petition filed with
the Board, indicates that such unit should include office and clerical
as well as production employees, it failed to adduce evidence in sup-
port of this contention. On the contrary the respondents, in their
exceptions to the Intermediate Report, which were submitted over
Lillie's signature as attorney for the Association as well as for the
respondents, allege that the testimony and evidence of record con-
clusively establishes the fact that the Association "represents and has
represented a majority of the production employees." It would
therefore appear that the Association has withdrawn any objection
it had to the appropriateness of the above-described unit.
We find that the production employees of the respondents, except
supervisory employees, constitute a unit appropriate for the purposes
of collective bargaining and that said unit will insure to the re-
spondents' employees the full benefit of their right to self-organiza-
tion and collective bargaining and otherwise effectuate the policies
of the Act.
2. Representation by the Union of the majority in the appropriate
unit
As of March 20, 1937, the respondents employed 89 workers, of
whom 80 were production employees. During the two meetings con-
ducted by the Union on that day, 44 of the production employees
7 The record shows that the nearest pay day to March 27 was March 26, for the period
ending March 23.
DECISIONS AND ORDERS 367
signed cards giving their names, addresses, occupations, and wage
rates. Although these signatures and notations appeared on the
reverse, or blank, sides of application cards for the International
Union, United Automobile Workers of America, the record con-
clusively establishes that the employees thus signified their desire to
join and be represented by the Union. Within the next few days,
9 additional production employees signed slips of paper for the same
purpose, bringing the Union membership to 53 of a total of 80 pro-
duction employees who were eligible to join.
It is therefore clear that on March 20, when 44 had already desig-
nated it as their representative, the Union represented a majority
of the production employees. That such majority was not challenged
by the respondents is evidenced by the agreement signed by Colman
on that day in which he agreed to negotiate with the Union as the
representative of the employees upon the return of Colten.
As we have described above, the respondents immediately there-
after began an active and unfair campaign to destroy that majority
and to discredit the Union. It is not, therefore, surprising that in
the face of these unfair labor practices a number of employees re-
signed from the Union, and that on April 6 only 34 employees went
out on strike. There is every reason to suppose, however, that had
it not been for the unfair labor practices of the respondents in per-
suading, intimidating, and coercing their employees to resign from
the Union and in fostering and giving support to the Association, the
respondents' employees would have remained members of the Union.
As we said in Matter of Bradford Dyeing Association (U. S. A.)
(a Corporation) and Textile Workers' Organizing Committee of
the C. I. 0.:8 "The unfair labor practices of the respondent cannot
operate to change the bargaining representative previously selected
by the untrammelled will of the majority." We find that on March
20, 1937, and at all times thereafter, the Union was the duly desig-
nated representative of the majority of the employees in an appro-
priate unit and, pursuant to Section 9 (a) of the Act, was the exclusive
representative of all the employees in such unit for purposes of col-
lective bargaining in respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment.
3. The refusal to bargain
Following the unsuccessful efforts of Kraman to negotiate with the
respondents on April 5, the Union called a strike on the following
day. Thereafter, although Kraman made numerous attempts to meet
with the respondents, both Colman and Colten refused to confer with
him. Indeed, the respondents in their answer admit that "on or about
8 4 N. L. R B. 604.
368 NATIONAL LABOR RELATIONS BOARD
April 6, 1937 and subsequent thereto and up to the present time, they
have refused to bargain collectively with the . . . Union."
The respondents seek to justify their refusal to bargain on the
ground that subsequent to the week of March 22 the Union no
longer represented the majority of their employees. We have
found, however, that the majority membership in the Union was
dissipated as a result of the unfair labor practices of the respondents.
They could not avoid their obligation to bargain under the Act
by virtue of their own unlawful conduct to which the Union's ap-
parent loss of the majority was directly attributable. We find that
on April 5, 1937, and at all times thereafter, the respondents refused
to bargain collectively with the Union as the representative of their
employees in an appropriate unit in respect to rates of pay, wages,
hours of employment, and other conditions of employment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondents set forth in Section
III above, occurring in connection with their operations described
in Section I above, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States, and have
led and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
We have found that the respondents engaged in a course of con-
duct which effectively discouraged their employees from joining or
remaining members of the Union, and openly and notoriously
fostered, encouraged, and dominated the administration of the As-
sociation. We shall therefore order the respondents to cease from
intimidating, coercing, and restraining their employees in the exer-
cise of the rights guaranteed by Section 7 of the Act. In accordance
with our usual practice under similar circumstances, we shall also
order the respondents to withdraw recognition from the Association
as a collective bargaining representative of any of their employees
and to disestablish it as such representative.
Since we have found that the respondents discriminatorily dis-
charged Mary rule because of her membership in the Union, she
is entitled to reinstatement to her former position together, with
reimbursement for any losses of pay she has suffered by reason of
her unlawful discharge, and we shall so order.
The employees who went on strike on April 6 because of the re-
spondents' unfair labor practices had not returned to work at the
time of the hearing. Simply to order the respondents to bargain
collectively with the Union and to cease and desist from engaging
DECISIONS AND ORDERS 369
in the other unfair labor practices would not afford these employees
full and effective relief. We shall therefore also order the respond-
-ents, upon application, to offer to those employees who went on
strike on April 6, 1937, immediate and full reinstatement to their
former positions without prejudice to their seniority and other
rights or privileges, dismissing, if necessary, any employees they
have hired since that date. If after dismissing such employees the
respondents determine that the services of any of its staff as then
constituted are not required, they may reduce their staff, provided
that they do so without discrimination against any employees be-
cause of their union affiliation or activities, following a system of
seniortiy to such extent as has heretofore been applied in the con-
duct of the respondents' business. Employees whose applications
for reinstatement are refused by the respondents in violation of this
order shall be entitled to back pay accruing from the date of such
refusal to the date of reinstatement, less any amount earned during
that period.°
On the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF, LAW
1. Amalgamated Clothing Workers of America and Kiddie Kover
Employees' Association are labor organizations, within the meaning
of Section 2 (5) of the Act.
2. The production employees of the respondents, except supervisory
employees, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act.
3. Amalgamated Clothing Workers of America was on March 20,
1937, and at all times thereafter has been, the exclusive representative
of all such employees for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act.
4. By refusing on April 5, 1937, and thereafter continuing to refuse,
to bargain collectively with Amalgamated Clothing` Workers of
America, as the exclusive representative of their employees in an
appropriate unit, the respondents have engaged in and are engaging
in unfair labor practices, within the meaning of Section 8 (5) of
the Act.
5. By discriminating in regard to the hire and tenure of employ-
ment of Mary Kule, and thereby discouraging membership in a
labor organization of their employees, the respondents have engaged
in and are engaging in unfair labor practices, within the meaning
of Section 8 (3) of the Act.
B See Matter of Standard Lime & Stone Company and Branch No . 175, Quarry Workers
International Union of North America , 5 N. L R B 106 ; Matter of Oregon Worsted
Company and United Textile Workers of America, Local 3435, 3 N. L. R B 36.
370 NATIONAL LABOR RELATIONS BOARD
6. By dominating and interfering with the formation and adminis-
tration of Kiddie Kover Employees' Association, and by contributing
financial and other support thereto, the respondents have engaged
in and are engaging in unfair labor practices, within the meaning of
Section 8 (2) of the Act.
7. By interfering with, restraining, and coercing- their employees
in the exercise of the rights guaranteed by Section 7 of the Act,
the respondents have engaged in and are engaging in unfair labor
practices, within the meaning of Section 8 (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the findings of fact and conclusions of law, and
pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ents, Arthur L. Colten and A. J. Colman, co-partners, doing business
as Kiddie Kover Manufacturing Company, Grand Haven, Michigan,
and their agents, successors, and assigns, shall:
1. Cease and desist :
(a) From discouraging membership in Amalgamated Clothing
Workers of America or any. other labor organization of their em-
ployees by discrimination in regard to hire or tenure of employment
or any terms or conditions of employment;
(b) From dominating or interfering with the administration of
Kiddie Kover Employees' Association or with the formation or ad-
ministration of any other labor organization of their employees, and
from contributing financial or other support to Kiddie Kover
Employees' Association or to any other labor organization of their
employees ;
(c) From refusing to bargain collectively with Amalgamated
Clothing Workers of America as the exclusive representative of their
production employees, with the exception of supervisory employees;
(d) From in any other, manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Mary Kule immediate and full reinstatement to her
former position, without prejudice to her seniority and other rights
and privileges ;
11
DECISIONS AND ORDERS 371
(b) Make whole said Mary Kule for any losses of pay she has
suffered by reason of her discharge, by payment to her of a sum
of money equal to that which she would normally have earned as
wages during the period from the date of her discharge to the date
of such offer of reinstatement, less any amount she has earned during
that period;
(c) Upon application, offer to those employees who went on strike
on April 6, 1937, immediate and full reinstatement to their former
positions, without prejudice to their seniority or other rights or
privileges, dismissing, if necessary, any employees they have hired
since April 6, 1937;
(d) Make whole all employees who went on strike on April 6, 1937,
for any losses of pay they may suffer by reason of any refusal of
their applications for reinstatement in accordance with paragraph
2 (c) herein, by payment to each of them, respectively, of a sum of
money equal to that which each would normally have earned as
wages during the period from the date of any such refusal of their
application to the date of offer of reinstatement, less any amount
earned by each, respectively, during such period;
(e) Upon request, bargain collectively with Amalgamated Cloth-
ing Workers of America as the exclusive representative of all their
production employees, with the exception of supervisory employees,
in respect to rates of pay, wages, hours of employment, and other
conditions of employment;
(f) Withdraw all recognition from Kiddie Kover Employees'
Association as the representative of any of their employees for the
purpose of dealing with the respondents concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment, and completely disestablish Kiddie Kover
Employees' Association as such representative;
(g) Immediately post notices in conspicuous places throughout
their plant and maintain such notices for a period of thirty (30)
consecutive days, stating (1) that the respondents will cease - and
desist as aforesaid, (2) that the respondents will bargain collectively
with Amalgamated Clothing Workers of America as the representa-
tive of their production employees, and (3) that the respondents
withdraw all recognition from Kiddie Kover Employees' Associa-
tion as the representative of any of their employees for the purpose
of dealing with the respondents concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment, and that Kiddie Kover Employees' Association is dis-
established as such representative;
(h) Notify the Regional Director for the Seventh Region in writ-
ing within ten (10) days from the date of this order what steps
the respondents have taken to comply herewith.