Lewis Meier & Co.

National Labor Relations Board - Board Decisions

Apr 24, 1947

73 N.L.R.B. 520 (N.L.R.B. 1947)

In the Matter of LEWIS METER &-, COMPANY and AMALGAMATED CiLOTH-
ING WORKERS OF AMERICA, C. I. O.
Case No. 11-C-1058.-Decided April 24,1947
Mr. Clifford L. Hardy, for the Board.
Hammond, Busch7nan and Roll, by Judge Curtis M. Roll and Mr.
Willis K. Kunz, of Indianapolis, Ind., for the respondent.
Mr. Robert C. Wilson, of Washington, D. C., for the A. F. L.
Messrs. Sydney L. Devin and Thomas R. Diarsella, of Indianapolis,
Ind., for the C. I. O.
Miss Melvern R. Krelow, of counsel to the Board.
DECISION
AND
ORDER
On July 18, 1946, Trial Examiner Henry J. Kent issued his Inter-
mediate Report in the above-entitled proceeding, finding that the re-
spondent, Lewis Meier & Company, had engaged in and was engag-
ing in certain unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter,
the respondent and the A. F. L. filed exceptions to the Intermediate
Report and supporting briefs. On January 14, 1947, the Board heard
oral argument at Washington, D. C. The respondent and the A. F. L.
appeared and participated in the argument.
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. The Board has considered the In-
termediate Report, the exceptions and briefs, the arguments advanced
at oral argument, and the entire record in the case, and hereby adopts
the Trial Examiner's findings, conclusions, and recommendations,
with the additions noted below :
1. We agree with the Trial Examiner that, under the principle enun-
ciated in the Rutland Court case,l the closed-shop contract between
the respondent and the A. F. L. did not protect the discharge of em-
I Matter of Rutland Court Owners, Inc ., 44 N. L . R. B. 587 ; 46 N. L R. B. 1040.
73 N. L. R. B., No. 106.
520
LEWIS METER & COMPANY 521
ployees Baker, Hurst, and Kelly, and that therefore their discharge
by the respondent, upon the request of the A. F: L., was violative of
the Act. It is clear, and we find, that the complainants joined, and
campaigned for, the C. I. O. at a time when it was appropriate for the
employees to change their bargaining representative, and that the
A. F. L. suspended these employees and requested their discharge un-
der the closed-shop contract because of such rival union activity. We
are convinced by the circumstances hereinafter set forth and by the
record as a whole, and we find, as did the Trial Examiner, that the
respondent was on notice that the rival union activity of the complain-
ants motivated the A. F. L. in requesting their discharge.
On January 19, 1946, at a prearranged conference with representa-
tives of the C. I. 0., the respondent was informed that a number of
its employees had joined the C. I. O. and that the C. I. O. was seeking
to supplant the A. F. L. as the exclusive bargaining representative at
the plant. At the same time, the C. I. O. representatives informed the
respondent that the A. F. L. was contemplating punitive action against
some employees who had joined the C. I. 0.; cautioned the respondent
against discharging employees because of their activity on behalf of,
or membership in, the C. I. 0.; and suggested that the respondent
terminate the A. F. L. closed-shop contract in accordance with its
terms, leaving any question concerning representation to be deter-
mined by the appropriate governmental agency. Almost immediately
thereafter, the respondent informed the A. F. L. of the rival claim by
the C. I. 0.; and on January 21, Baker, Hurst, and Kelly were sus-
pended from membership by the A. F. L. Following the respondent's
refusal to act on an oral demand by the A. F. L. to discharge the com-
plainants in accordance with the terms of the closed-shop agreement,
and at the respondent's suggestion, the A. F. L. wrote the respondent
on January 22, explaining that the complainants were suspended "not
only for non-payment of dues, but for trying to undermine the local
union and its members in a willful manner." On January 25, Busch-
mann, the respondent's secretary-treasurer, personally discharged the
complainants by reading a prepared statement, which omitted any
reference to the specific reasons assigned by the A. F. L.- for their
suspension. At the same time, the complainants indicated to Busch-
mann their adherence to the C. I. O. and suggested that he terminate
the existing closed-shop agreement with the A. F. L.
In our opinion, the advice to the respondent that the A. F. L. con-
templated punitive action against C. I. O. advocates, the timing of
the A. F. L.'s request for discharge, the statement in the A. F. L's
letter that the complainants were "trying to undermine the local union
.and its members in a willful manner," and the advocacy of the C. I. O.
by the complainants at the time of their discharge, put the respondent
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on notice that the complainants were suspended by the A. F. L. for-
their activity on behalf of the C. I. 0. In these circumstances, the
respondent could not have reasonably relied on the A. F. L.'s assertion-
that non-payment of dues was also a reason for their suspension, for
the respondent had ample opportunity to ascertain from the com-
plainants at the time of their discharge whether they were delinquent
in their dues as charged by the A. F. L. Had the respondent so in-
quired, as it had the right to do in enforcing the closed-shop contract,
it would have then learned, as the record shows, that the A. F. L.
had refused to accept the dues which the complainants had tendered.
2. The dissenting opinion would dismiss the complaint without
prejudice to the institution of a subsequent proceeding, if and when
the A. F. L. is made a party-respondent thereto. It suggests that a
labor organization, in enforcing a contractual provision requiring
membership therein as a condition of employment, is an "employer,"
within the meaning of the Act, and is therefore subject to the remedial
orders of this Board. Principal reliance for this view is placed upon
the decision by the Supreme Court of the United States in N. L. B. B. v.
Hearst Publications, Incorporated,2 which extended the protection of
the Act to a class of employees who might perhaps not be regarded as-
such under common law concepts. In our opinion, however, this.
reliance is misplaced, for the economic relationship, as found in the
Hearst case, between "news-boys" and the publishers of the papers
which they sell is wholly unlike the relationship between a labor or-
ganization and its constituent members. We do not believe that a
determination that the employees in this case are employees of the
A. F. L., merely because of the closed-shop contract, would have any
"warrant in the record" or any "reasonable basis in law." 3 We believe
that it requires administrative legislation to reach that result, a step
we are unwilling to take.
Whether or not the result suggested by the dissenting opinion is
desirable, its achievement, in our opinion, would do violence to the
explicit language of the Act. Section 2 (2) of the Act provides that
"employer" shall include "any person acting in the interest of an em-
ployer, directly or indirectly, but shall not include . . . any labor
organization [other than when acting as employer], or anyone acting
in the capacity of officer or agent of such labor organization." That
Congress unequivocally intended thereby to exclude labor organizations
in their representative capacity from the injunctive ambit of the Act,
is shown by the following analysis of Section 2 contained in the Report
of the Senate Committee on Education and Labor:
2 322 U. S. 111, reversing 136 F (2d) 60S, and enforcing 28 N L R B 1006.
0 See N. L R. B v Hearst Publications, Incorporated, 322 U. S 111, 131.
4 Senate Report No 573, accompanying S 1958, of the Committee on Education and
Labor, 74th Congress, 1st Session, Section 2
LEWIS MEIER & COMPANY 523
The term "employer" excludes labor organizations, their officers,
and agents (except in the extreme case when they are acting as
employers in relation to their own employees). Otherwise the
provisions of the bill which prevent employers from participating
in the organizational activities of workers would extend to labor
unions as well, and thus would deprive unions of one of their
normal functions.
Moreover, it appears from the legislative history of the Act that
Congress rejected the concept that labor organizations should be made
amenable to Section 8 thereof. The respective committee reports to
both the Senate and the House of Representatives mention proposals
for prohibiting labor organizations, as well as employers, from engag-
ing in activities defined in Section 8 as unfair labor practices.5 Indeed,
attention was explicitly called to the possibility of arbitrary use of the
closed shop by labor organizations, and specific proposals were made
for its avoidance .6 Congress, however, refused to include any of these
proposals in the Act as written.'
In brief, we are of the opinion that neither the Act nor its interpre-
tation by the courts gives the Board carte blanche to hold the Act
applicable wherever "protection ought to be given," that the existence
of a closed-shop contract does not create the economic relationship of
employer and employee between the union holding the contract and
its members who are covered by the contract, and that labor organiza-
tions are in any event excluded by the language and legislative history
of the Act from the definition of the term "employer" except "where
they are acting as employers in relation to their own employees."
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Lewis Meier & Company,
Indianapolis, Indiana, and its officers, agents, successors. and assigns
shall :
1. Cease and desist from discouraging membership in Amalgamated
Clothing Workers of America, affiliated with the Congress of Indus-
G Senate Report No 573, accompaii vng S 1958, of the Committee on Education and
Labor, 74th Congress, 1st Session (adopted by the House) wheiens it is stated, in part
i ioposas such as these under discussion aie not new The< «cie suggested when
Section 7 (a) of the National Industrial Recovery Act was tip for discussion, and ashen
the 1934 amendments to the Railway Labor Act were befoe Congress In neither
instance did they command the support of Congiess
'United States Senate, 74th Congress, 1st Session, Heaiings before the Committee on
Education and Labor on S 1955, Part 3, pages 699-702
° See, howeNei, the lust three sentences of the concluding page of Section I of the State-
ment of the full Board on pending legislation, as piesented by Chanimin Herzog to the
Senate Committee on Labor and Public Welfare on March 6, 1947, and the House Com-
nnttee on Education and Labor on March 11, 1947
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trial Organizations, or in any other labor organization of its em-
ployees, by discharging or refusing to reinstate any of its employees, or
by discriminating in any other manner in regard to their hire or tenure
of employment, or any term or condition of their employment, for
engaging in activities directed to the designation of a new bargaining
representative at an appropriate time.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer Leona Baker, Shirley Hurst, and Leona Kelly immediate
and full reinstatement to their former or substantially equivalent
positions," without prejudice to their seniority or other rights and
privileges ;
(b) Make whole Leona Baker, Shirley Hurst, and Leona Kelly for
any loss of pay they may have suffered by reason of the respondent's
discrimination against them, by payment to each of them of a sum of
money equal to that which she normally would have earned as wages
during the period from the date on which the respondent discrimina-
torily discharged her to the date of the respondent's offer of reinstate-
ment, less her net earnings during said period;
(c) Post at its plant at Indianapolis, Indiana, copies of the notice
attached hereto, marked "Appendix A." 9 Copies of said notice, to
be furnished by the Regional Director for the Eleventh Region, shall,
after being duly signed by the respondent's representative, be posted
by it immediately upon receipt thereof and maintained by it for sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the respondent to insure that said notices are
not altered, defaced, or covered by other material;
(d) Notify the Regional Director for the Eleventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
MR. JAMES J. REYNOLDS, JR., dissenting :
On the basis of the record before us it is quite apparent to me that
Baker, Hurst, and Kelly have been deprived of their jobs and possibly
subjected to monetary damages solely because they exercised in a
proper manner rights guaranteed them by the Act. It is accordingly
the clear duty of this Board to provide an effective and complete rem-
edy designed to protect these employees from such proscribed discrimi-
I In accordance with our consistent interpretation of the term , the expression "formerly
or substantially equivalent position " is intended to mean "former position wherever pos-
sible, but if such position is no longer in existence , then to a substantially equivalent posi-
tion " See Matter of The Chase National Bank of the City of New York, San Juan, Puerto
Rico Branch, 65 N L. R B 827.
° In the event this Order is enforced by decree of a Circuit Court of Appeals , there shall
he inserted , before the words "A Decision and Order ," the words • "A Decree of The United
States Circuit Court of Appeals Enforcing
LEWIS MEIER & COMPANY 525
nation. If the Decision and Order of my colleagues proffered such pro-
tection, I would enthusiastically join with them. However, inasmuch
as the failure of the charging union to name the A. F. L. as a respond-
ent in this proceeding makes it impossible for the Board to issue its
order against the A. F. L. as well as the respondent employer, I would
dismiss the complaint without prejudice to future consideration by
the Board of the events covered thereby in any subsequent proceeding
wherein all the persons apparently responsible for the discriminatory
treatment of Baker, Hurst and Kelly are properly made parties re-
spondent. Only then, in my opinion, will the Board be in a position
to effectuate completely the intent of Congress as expressed in the Act.
My colleagues seek to remedy the discriminatory treatment of the
employees here involved by compelling the respondent company to
offer the said employees reinstatement and make them whole for loss
of pay suffered as a result of the discrimination. The rationale for
this decision is that the respondent's compliance with the closed-shop
provision of its contract with the A. F. L. comprised an unfair labor
practice because it was aware that the A. F. L. had deprived Baker,
Hurst, and Kelly of their membership in the A. F. L. and had de-
manded their discharge because of their activity on behalf of the
CIO. The inescapable impact of this reasoning is that had the re-
spondent not been aware of this fact the 'Board would have dismissed
the complaint, confessing impotence to offer the slightest impediment
to such vicious violation of rights supposedly guaranteed employees
under the Act. Thus, in the Diamond T Motor Car Company case,10
an unaffiliated union holding a closed-shop contract with the com-
pany expelled certain employees from its rank because of their efforts
on behalf of another union affiliated with the American Federation of
Labor, and requested successfully that the company discharge them in
accordance with the terms of the collective bargaining contract. The
Board, lacking what it in that case considered substantial evidence
that the company knew of the discriminatory and illegal motive im-
pelling the independent's expulsion of the employees front its organ-
ization, dismissed the complaint, concluding apparently that under
such circumstances the free exercise of the employees' choice as to their
representation is tantamount to a risk rather than a right. Since the
policy of the United States as set forth in the Act is "to eliminate the
causes of certain substantial obstructions to the free flow of commerce
... by protecting the exercise of workers of full freedom of asso-
ciation, self-organization, and designation of representatives of their
own choosing, . . ." 11 I cannot agree with any such conclusion.
Rather would I seek means of extending the protection of the Act to
10 54 R L R B 1225.
Section 1 of the Act
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees wherever it is needed to insure them the rights which
Congress intended be preserved for them.
I am aware that Section 2 (2) and Section 8 of the Act together
,engender the conclusion that labor organizations are not, as such,
subject to the prohibitions of the Act. Accordingly, I concede that
the activities of labor organizations while representing constituent
employees are not subject, except indirectly through the employer,
to the jurisdiction of this Board. However, I believe that a labor
.organization which has secured a binding contract from an employer
giving it the right to control effectively the tenure of employment of
its employees thereby assumes the status of an employer, and, insofar
as it exercises this contractural prerogative, it is an employer subject
to the restraints imposed by the Act on any other employer. To rea-
son otherwise compels the conclusion that Congress in adopting the
proviso to Section 8 (3) of the Act intended that the inequities dis-
ruptive to the commerce of the United States were not to be outlawdd
when inflicted upon employees by an organization having as its
primary purpose employee representation.
It has frequently been argued in litigation involving the National
Labor Relations Act that common law limitations should be applied
in defining the words "employer" and "employee" as used therein.
Invariably, the Board and the courts have rejected these contentions
and have,decided such issues in a manner consistent with the objectives
,of the statute. The most prominent example of this principle is con-
tained in the Board's and the courts' decisions in the Hearst Paablica-
tions case. In ;that case, the Board held 12 that street vendors of
-newspapers-"newsboys"-were "employees" of the publishers of the
-newspapers which they sold although, with respect to the publishers'
-liability in tort and workmen's compensation proceedings, the news-
boys were clearly independent contractors rather than employees. The
-basis for this decision, as stated by the Board, was the fact "that the
[publishers] have -the right to exercise, and do exercise, such control
and direction over-the manner and means in which the newsboys per-
form their selling activities as establishes the relationship of employer
and employee for the purposes of the Act." The Board stated further
- that ". . . the primary consideration in the determination of the
applicability of the statutory definition is whether effectuation of the
.declared policy and -purposes of the Act comprehend securing to the
individual the rights,guaranteed and protection afforded by the Act."
The Ninth'Circult,Court of Appeals reversed the Board on this issue
holding that the terms "employee" and "employer" must be given their
"conventional meaning as developed under the common law and
statutory enactment" and that ". . . the legislature is presumed to use
12 Matter of lleary t Pvvblicatioiis . Iiico? porated , 28 N L R B 1006.
LEWIS MEIER & COMPANY 527
words in their ordinary sense unless that sense is contradicted by the
context of "t statute." 13
The U. S. Supreme Court in turn reversed the decision of the Circuit
Court and sustained the Board's contention that an "employee-
employer" relationship, as defined by the Act, existed between. the
publishers and the newsboys'14 saying
To eliminate the causes of labor disputes and industrial strife,
Congress 'thought it necessary to create a balance of forces in
certain types of economic relationships . . . Congress recognized
those economic relationships cannot be fitted neatly into the con-
tainers designated "employee" and "employer" which an earlier
law had shaped 'for different purposes. Its Reports on the bill
disclose clearly the understanding that "employers and employees
not in proximate relationship may be drawn into common con-
troversies by economic forces",'and that the very disputes sought
to be aeoided might involve "employees [who] are at times
brought into an economic relationship with employers who are not
their employers."
.. . There is no good reason . . . to restrict the scope of the
term "employee." . . . That term, like other provisions, must be
understood with reference to the purpose of the Act and the facts
involved in the economic relationship. Where all the conditions
of the relation require protection, protection ought to be given.
It is not necessary ... to make a complete definitive limitation
around the term "employee." That task has been assigned pri-
marily to the agency created by Congress to administer the Act.
Determination of "where all the conditions of the relation require
protection" involved inquiries for the Board charged with this
duty. Everyday experience . . . gives it familiarity with the cir-
cumstances and backgrounds of employment relationships.
* * * The Board's determination that specified - persons are
"employees" under this Act is to be accepted if it has "warrant in
the record" and a reasonable basis in law. (Italics supplied.)
Any labor organization charged with the commission of an unfair
labor practice by a complaint issued by this Board would undoubtedly
contest our jurisdiction to issue an order against it on the basis of the
legislative history 'of the Act which indicates that labor organizations
were not intended to'be subject to Section 8 of the Act. 15,' Without
setting forth here any elaborate analysis as to why I ,find no `merit in
such a contention, it is sufficient to note that, in my opiiiioii, the?legisla-
Hearst Publications , Inc, et at v. N L ,R B , 136Y. ( 2d) 608.
N L. R B v Hearst Publications , Incorpoiated, 322 U. S 111.
15Reference'to the definition of'the term "employer contained' in•Section 2 (2) of the
;Aet appears in Senate Report No 573, accompanying S 1958, of,the Committee on Educa-
tion and Labor, 74th Congress, 1st Session , Section 2.
739926-4 7 -vol 73-35
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive history of the Act discloses that Congress did not consider spe-
cially a labor organization 's'status as administrator of a closed-shop
contract , and such legislative history as exists cannot reasonably be
interpreted so as to obviate the clear duty of the Board to provide pro-
tection for the employees where, as is so obviously the case here, "pro-
tection ought to be given." Such action by the Board would not en-
tail any restriction of the normal functions of a labor union but would
merely restrain such an organization from arrogantly violating the
-law and spirit of the very Act from which it derives- its- vitality.
It is with deep regret that, in view of the emphatic rejection by my
colleagues of my suggestion that the Board should undertake to impose
effective restrictions on a union 's power to utilize a closed -shop con-
tract as a weapon of industrial tyranny, I find it necessary to advise
those injured by such a weapon - that their only redress lies in legisla-
tive action . Conceivably , the majority 's narrow definition of the
Board's power to eliminate such injustices as were imposed upon
Baker, Hurst, and Kelly by the A. F. L. in the instant case, might be
determined by the courts to be the one compelled by the Act and its
legislative history. This possibility, however-which I do not con-
cede to be a probability-does not seem to me congruous with the
Board's policy heretofore of, interpreting as broadly as possible its
authority , wherever such an interpretation has been compatible with
the attainment'of the broad objectives of the Act. Rather than that
the Board should demonstrate by its own ruling the necessity for legis-
lative action to eliminate such a vicious practice , I should have greatly
preferred that authoritative decisions of the courts indicate the need
for.such action.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National 'Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in AMALGAMATED
- CLOTHING WORKERS OF AMERICA, C. I. 0., or in any
other labor organization of our employees ,- by- discharging or re-
fusing to reinstate any of our , employees , or by discrimiiiating in
any other manner in regard to their hire,, or tenure of employ-
ment, or any term or condition of employment , for engaging in
activities directed to the designation of a new' bargaining repre-
sentative at an appropriate time.
WE WILL OFFER to the employees named below immediate
and full reinstatement to their farmer or substantially equivalent
LEWIS MEIER & COMPANY 529
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination. - -
Leona Baker
Shirley Hurst.
Leona Kelly
LEWIS MEIER & .COMPANY,
Employer
Dated---------------- By----------------------- ---------'----
(IRepresentative) (Title)
NOTE : Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for 60 days from the date thereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mi. Cli fboi d L Hat d y, for the Board.
Hainniottd , Busclivtan and Roll, by Judge Curtis ill Roll and M7. ll'illis K.
Kant, of Indianapolis , Ind, for the respondent.
Mi Robes t C. 11, ilson, of Washington, D C., for the A F L.
STATEuIEcT OF THE CASE
Upon a charge duly filed on February 4, 19.46, by Amalgamated Clothing Work-
ers of America , C 1. 0, herein called the C I . 0, the National Labor Relations
Board, herein called the Board , by the Regional Director for the Eleventh Region
(Indianapolis , Indiana) , issued its complaint dated May 7, 1946, against Lewis
Meier & Company, herein called the respondent, alleging that-the respondent
had,engaged in and was engaging in untait labor practices within the meaning
of Sections S (1) and (3) and Section 2 (6) rind (7 ) of the !National Labor
Relations ' Act; herein called the Act. Copies of'the complaint , accompanied by
notice of hearing , were duly served upon the respondent , the C. I. 0., and United
Garment Workers of America , A F L, herein called the A. F L.
With respect to the unfair labor practices , the complaint alleged in substance
that the respondent oil or about January 25, 1946 , discharged Leona Kelly, Shirley
Hurst and Leona Baker , respectively , because they joined or assisted the C. I. 0.,
or engaged in activities on behalf of the C. I. 0., and thereafter failed and
refused to reinstate them, and has thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
The respondent ' thereafter- filed its , answer wherein it admitted; that it dis-
charged Kelly, Hurst and baker on the date mentioned in the _ cgmplaiut but
denied that it did so because of their C I . 0. affiliation and activities and that
it committed any unfair labor practices in connection with their discharges.
In its answer, it further affirmatively averred that Kelly, Hurst and Baker were
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged' because of certain alleged mandatory provisions contained in a con-
tract entered into on August 27, 1943, between the respondent and the A. F L.,
requiring as a condition of employment that all *employees should remain members
of the A. F. L. in good standing for the duration of the contract
Pursuant to notice, a hearing was held on May 2S, 1946, at Indianapolis,
Indiana. before the undersigned, the Trial Examiner duly designated by the
Chief Trial Examiner The Board, the respondent and the A. F L were repre-
sented by counsel and the C I. 0 by lay repiesentatives.i Full opportunity to
he heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties At the close of the Board's case
the undersigned granted the Board's motion, made without objection, to conform
-the pleadings to the proof as to formal matters At this time counsel for the
-respondent and the A. F. L also moved to strike all testimony given by Baker,
Kelly and Hurst respecting proceedings had at an A F. L. membership meeting
field in January 1946, regarding purported action taken by the A. F L to suspend
or oust Baker, Kelly and Hurst,,from membership in the A. F L Ruling was
reserved at the time, but is now herein denied. At the close of the hearing,
counsel for the Board was granted leave to file a brief with the undersigned within
5 days, his brief to be served on the other parties, who were granted leave to
to file answei ing briefs within 5 days of the receipt hereof. Briefs have been
received from counsel for the Board, the respondent and the A. F. L.
Upon the record made and from his observation of the witnesses, the under-
signed makes the following:
FINDLNGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The respondent is an Indiana corporation, having its principal office and
plant in the city of Indianapolis, Indiana, where it is engaged in the manufac-
ture of work clothes and cotton sport clothes. Over 50 percent of the raw ma-
terials processed, consisting principally of cotton cloth and 'thread, is pur-
chased and shipped to its plant from points outside the State of Indiana. Of
its manufactured products, having a sales value in excess of $100,000 during the
12 months prior to the hearing, over 50 percent is shipped to customers located
outside the State of Indiana.
The respondent, admits in its answer, and the undersigned finds, that it is
engaged in commerce within the meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
Amalgamated Clothing Workers of America, affiliated with the Congress of
Industrial Organizations, and United Garment Workers of America, affiliated
with the American Federation of Labor, are labor organizations admitting to
membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
'1 'Introductory statement
,The parties are in substantial agreenient'as to the facts in the case, but. differ
in respect to the conclusions to be drawn from them.
'The A. F. L. appeared by counsel at the opening of the hearing and moved orally fol
leave to intervene for the reason that it was party to a contract with the respondent. Leave
to intervene was granted without objection from the other parties.
LEWIS MEIER & COMPANY 531
The principal issue presented for decision is whether or not the respondent, at
the insistence of the A F. L, may legally discharge employees for engaging
in C I 0 activities during an indefinitely extended term of a closed-shop contract
with the A. F. L , and within 1 week after a claim of majority representation
was asserted by the C. I. O.
2. The A. F. L. contract signed on August 27, 1943
For many years prior to 1943, the respondent had dealt with the A. F. L. as
the sole collective bargaining representative of its employees. The last collec,
tive bargaining agreement was signed on August 27, 1943. This agreement,pro-
vides, inter alia:
The company recognizes the United Garment Workers of America [A. F. L. I
as the sole collective bargaining agency for all of the employees that come
within its jurisdiction, and further agrees to maintain in its employe [sic]
only those employees that me in good standing with the United Garment
Workers of America.
This agreement to go into effect this 27th day of August 1943, and terminate
one year from said date. It shall automatically continue beyond said date of
expiration unless either party by sixty days written notice agree to terminate
it.
No steps were taken, thereafter, by either party to terminate or otherwise modify
the provisions of the agreement.
3 The C I O'activities at the plant in January 1940; the discharges of Leona
Baker, Shirley Hurst , and Leona Kelly
Prior to January 1946, some of the respondent's employees had become dis-
satisfied with the A. F L. as their representative and decided to affiliate with the
C I. 0 On two occasions early in January 1946, employees Leona Baker and
Shirley Hurst, accompanied by several other employees, not identified in the
record, went to the Indianapolis office of the C I. O. to request that union to
organize the respondent's employees Pursuant to these requests, the C. I. O.
held an organizational meeting for the respondent's employees at,Amalgamated
Clothing Worker's Hall in Indianapolis, Indiana, on the night of January 16,
1946. S. L. Devin and Thomas Marsella, representatives of the C I 0., conducted
the meeting which was attended by about 15 to 20 of the respondent's employees.
Baker and Hurst .had obtained a supply of C I O. application cards, sometime
previous to this meeting, and solicited many of the approximately 75 to 80 em-
ployees to sign some of these cards at the plant outside of the regular working
periods. Twenty-six or twenty-seven signed cards had been handed in to C. I. O.
representatives by January 16, 1945. Kelly signed one of the C. I. O. cards and
also attended the January 16 meeting of the C. I. 0
On January 17, 1946, the day after the above-mentioned meeting, C. I. O. Repre.
sentative Devin called the respondent's plant by telephone and arranged for a
conference with the respondent on January 19, 1946 Pursuant to this arrange-
ment, Devin and Marsella went to the plant on the morning of January 19,
1946, and met with Charles E J3uschmann, the respondent's secretary and treas-
urer- and Plant Superintendent Rentsch. At this meeting, according to Devin's
credible and uncontradicted testimony: Devin claimed the C. I 0 represented a
majority of the employees, and as such representative, requested recognition as
their sole bargaining representative; he suggested that any question concerning
representation could be submitted to a government agency for determination if
respondent questioned the validity of the C 1 0 's claim; he advised the re-
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent to serve the A. F.' L with a notice of termination of the above-men-
tioned contract : and he also stated lie had learned that the A F L might ask
the respondent to discharge some of its employees for engaging in C. I.-0.
activities and cautioned it against taking such action , whereupon Rentsch stated
that the respondent would not do so 2 The record fails to show that the re-
spondent made definite reply to any of the above claims or suggestions otfered
by Devln, but it does show that soon after the meeting Buschmann admittedly
informed Madge King , an A F. L representative , that the C . I. 0 presently
claimed to represent a majority of the employees Shortly after this conversa-
tion with King, according to Buschmann 's credible testimony , either King or
Laura Smith , the president of the A. F. L local having jurisdiction over the
respondent 's employees , called Buschmann on the telephone and told him that
employees Baker , Hurst and Kelly had been expelled from the A F L and
that unless they were discharged other employees would go out on strike, where-
upon Buschmann stated that the respondent would take no action regarding
the matter unless the A. F . L. by letter furnished satisfactory grounds to support
its demand regarding the discharge of the three employees. ' '
Following the refusal of the respondent to discharge Baker , Hurst and Kelly
on the verbal request of the A F L, above discussed, the A F L by letter to
the respondent dated January 22 , 1 846. renewed its demand that the three
employees be discharged . The letter reads as follows
At the regular meeting of local #127 , held January 21, 1946, with the
United Garment Workers of America , A F of L The following action 'was
taken
The following three people, namely Mrs. Leona Baker , Mis Shirley Hurst,
and Mrs. Leona Kelly were automatically suspended from all rights and
privileges , not only for nonpayment of clues, but for trying to undernlind
[sic] the local union and its members in a wilful manner.
T1lerefor the three above named people are denied the privilege of
employment in your factory , according to the constitution and the agree-
ment that we have with yofir Company , which required all members to be
in good standing with local union #'127'
After receiving the A F L letter . Buschmann , according to his unrefuted and
credible testimony , submitted the letter together with a copy of the'above-men-
tioned contract to two Indianapolis , Indiana , itiw firms with a request that they
advise the respondent concerning its obligations 4 According to Buschmann. both
law firms advised that the three employees be discharged -
2 Rentsch was not called as a witness and Buschmann, in his testnnony, did not contra-
chcf the testinionv given by Devin regarding the matters discussed at the meeting
According to the following uncontradicted testimony of Baker which the undersigned
credits She attended a meeting of the A F L held on or about January 18 or 19, 1946,
and which the undersigned concludes to he the A F L meeting adveited to in the above
letter as having been held on January 21, 1946 She further testified, in substance, that
Laura Smith, president of the A F L Local, addiessed the meeting and called certain
unidentified employees "rats" because they had engaged in C I 0 activities . that follow-
ing Smith's speech a resolution was offered and passed to expel all dissident members with-
out identifying them by name and that she, Baker, had been puipoitedly expelled without
being notified that written charges had been filed against her, or served with notice speci-
fying the nature of the charges, and-of the time and place of a hearing thereon, as pro-
vided in the Constitution and By-Laws of the-A F L -The iecord further shows that the
dues of the three employees named in the letter had been duly paid up to the month of
December 1945, and that all of then tendered their dues for the month of January 1946,
but that the A' F L dues collector in the plant refused to accept their dues for January
on the grounds that they had been expelled from the Union
4 One of the firms appeared herein as counsel of record for the respondent , at this hear-
ing, but the other was not specifically identified in the record.
LEWIS MEIER & COMPANY 533
Thereafter , Buschnarnn called Baker , Huia and Kelly to his office , shortly
before the close of the working day on January 25, 1946 On their. allrval there,
lie then told them in substance that pursuant to the provisions of it closed-shop
contract with the A. F L the respondent was obliged to discharge them because
they had been expelled from that organization , acid that he regretted being
forced to take such action because the respondent considered all of them to be
competent and,satisfactory employees ' The three employees were subsequently
given releases and tit no time since have they been offer eel 'i enistatement
B Concluding findings
- The respondent and the A F L contend ill effect, (1) that the respondent
was without knowledge that the discharges were based upon C 1 0 activities
of the employees concerned; (2) that, even assuming that respondent had such
knowledge, the contract was one entered into fora term of 1 year which there-
after was automatically extended for 2 additional yearly terms by reason of the
failure of either party to terminate it by the service of a 60 days' notice of ter-
mination given prior to the anniversary date fixed by the terms of the contract,
and that consequently under the theory of the Board's decision in Southwest
Portland Centent Company, 65 N. L B. B 1, the discharges were not in violation
of the Act; and (3) that since the C I 0 failed to file a petition for investigation
and certification within 10 days after it asserted its claim of majority repretrenta-
tion to the respondent, the respondent was privileged to consider the contract
provisions ire -being in full force and effect and thei efore free to discharge
employees, at the insistence of the A F I.., for engaging in C I O activities
The, first defense above lacks merit The facts above clearly indicate that the
respondent had general knowledge regarding C 1 0 activities among its em-
ployees by reason of the statements made by Devin, the C 1 0 representative, to
the respondent's representatives on January 19, 1946, when the C 1 0 requested
recognition as majority representative of the employees Moreover, on this
occasion, Devin expressly warned the iespondent not to penalize any of its eni-
ployees for engaging in such activities in the event that the A F L requested such
action. There can be no doubt, in view of this background, that the A F. L.'s
demand of the respondent to discha ige Baker, Hurst and Kelly for "trying to
Iundermmel the local union and its members" as stated in the A F L's Jan-
uary 22;'1946, leder; releried to the C I O. activities of the three employees named
then em and was so understood by the respondent. -
The second contention raised above also lacks merit It is based upon a claim
that the respondent and the A F L regarded the contract as one to be auto-
matically extended from year to '.,year following the expo ation of the first one
year term, in the event neither party exercised an option to terminate it by
the giving of Ti 60 days' notice of termination prior to any anniversary date.
A consideration of the language used in the clause fixing the term, and the
extension thereof, is not ambiguous, but clearly expresses an intention to enter
into a contract for a definite term of one year which thereafter may be ex-
tended for a period of indefinite duration subject to termination at any time
by either party by the service of a 60-day notice' Accordingly, this contract
-constftuted-no bar to the prosecution of a representation proceeding under the
The record shows that Baker, Hurst and Kelly had respectively commenced their employ-
ment at the plant in January 1939, December 1939 and June 1944, and that'all of them
have continued to work there as regular machine operators since those times , until dis-
charged on January 25, 1946
0In urging this defense the respondent and A. F. L relied upon the Board' s decision in
General Electric l-Ran/ Corp , 67'N L. R B 1997
° See It win Auger Bit Company, 68 N L R B 447
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's established procedure 8 The respondent's employees were therefore
free to engage in self-organizational activities for the purpose of seeking to
effect a change of bargaining representative at least at any time subsequent
to that period beginning 60 days period to August 27, 1944, the end of the definite
term- fixed by the terms of the contract ° To hold otherwise would mean that
an employer and- a labor union, acting in concert, could maintain one labor
organization in perpetuity as the bargaining representative of its employees
by the simple device of failing to give a notice of termination of. a contract run-
ning-for an indefinite duration and expelling any employees during such period
who wished to have a different representative after a contract had been ex-
tended for an indefinite term.
The third point raised by the A F L and the respondent must also be re-
jected. The rule of the General Electric X-Ray decision (67 N. L R. B. 997),
relied on by the respondent and the A. F. L, that when a representation petition
is filed more than 10 days after the assertion of a bare claim of majority rep-
resentation and no extenuating circumstances appear, an otherwise valid
agreement which is executed in the interval bars a determination of representa-
tives, applies only to situations which involve the execution of, or the auto-
matic renewal of, agreements in the interval between the assertion of the rival
claim and the filing of the petition.1° It has no bearing on the situation pre-
vailing in the instant case The issue herein presented is whether or not self-
organizational activities of employees are protected during an appropriate period
of a valid closed-shop contract would not be a bar to a representation petition
filed by another union. Under the facts here disclosed, the activities of the dis-
charged employees, as found above, occurred during such a protected period.
It is immaterial, whether the union for which the employees engaged in such
activities was successful in obtaining the allegiance of either it majority of
the employees or of a,sufficient number to have the Board process the petition.
It is also immaterial whether the competing union for some reason or other
fails to file its representation petition timely so,that the Board, in its sound dis-
cretion, refuses to then consider the determination of representatives The test
is whether the organizational activities of the employees occurred during a pro-
tected period, whether successful or not Moreover, the facts herein clearly
show that the discharges were effected six days after the C I. O. asserted its
claim of majority representative. Hence, even in a case where the "General
Electric X-Ray" rule might have general application it would hardly be in-
voked against a claimant who failed to file a petition within six days after
asserting a claim of representation.
Under the circumstances of this case, the undersigned does not question the
respondent's good faith, but he also feels that the situation with which it was
confronted required it to proceed at its own risk Since it was faced with the
C. I. O.'s demand for recognition as majority representative and the adverse
claim of the A F. L that it; was also such representative, coupled, with a threat
to strike by A F. L. employees, it could have filed a petition with this Board to'
have the question of representation settled under the amended regulations in
effect at the time of the dispute arose (and which are still in effect)."
Upon the basis of the foregoing facts and the entire record, the undersigned
concludes that Baker, Hurst and Kelly were discharged for engaging in self
organizational activities protected by the Act.
" See Irwin Anger Bit ,Company, 68 N L R B 447; Colgate Palmolive-Peet Company,
63 N L R B 1184; Joseph Lerner, doing business as American Pants Mfg. Co., 64 N L.
R. B 810
° See Matter of Rutland Court Owners. Inc, 44 N. L R B 587; 46 N. L R B. 1040.-
10 See Itenri, cC Allen, Inc., 68 N L R B 724.
It See Matter of Rutland Court Owners, Inc., 44 N L. R B 587; 46 N L R B. 1040
LEWIS MEIER & COMPANY 535
On all of the foregoing, the undersigned finds that the respondent, by dis-
charging Leona Baker, Shirley Hui st, .ind Leona Kelly, discriminated in regard
to hire and tenure of their enrplo^ nient, thereby discouraging membership in
the C I 0 in violation of Section S (3) of the Act, rind interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act
IV. THE EFFECT OF THE III FAIR LABOR PRACTICES UPON COMMERCE -
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relationship to trade, traffic, and com-
merce among the several States. and tend to lead to labor disputes burdening
and-obstructing commerce and the free flow thereot
V. THE REMEDY
Since it has been found that the respondent, has engaged in an unfair labor
practice, it will be recommended that it cease and desist therefrom, and take
certain action necessary to effectuate the policies of the Act.
It has been found that on January 25. 1946, the respondent discriminatorily
discharged Leona Baker, Shirley Hurst and Leonti Kelly. It will be recom-
mended that the respondent offer Leona Baker, Shirley Hurst and Leona Kelly,
and each of them inimediate and full reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority and other
rights and privileges, and,that the respondent make Leona Baker, Shirley Hurst
and Leona Kelly whole for any loss of pay `they may have -suffered by reason
of the discrimination against therm, by payment to each of them of a sum of
money equal to that which they normally 'would have earned as wages from
January 25, 1946, the date of their discruninatorv discharge, to the date of the
offer of reinstatement, less their net earnings' during said period.
A broad cease and desist older in respect to violation of Section 8 '(1), of the
Act will not be recommended by the undersigned for the reason that from the
type of violation found herein, there appeals to be no clanger that the respondent
will commit other violations of the Act in the future "from the course of his
conduct in the past
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS or LAW
1. Amalgamated Clothing Workers of America, affiliated with the Congress of
Industrial Organizations, and United Garment Workers of America, affiliated
with the American, Federation of Labor, are labor organizations within the
meaning of Section 2 (5) of the Act.
2 By discriminating in regard to the hire and tenure of employment of Leona
Baker, Shirley Hurst, and Leona Kelly,, thereby discouraging membership in,
Amalgamated Clothing Workers of America, affiliated with the Congress of
",By "net earnings " is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, Which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere ;See Matter
of Crossett Lumber Company, 8 N. L R B 440. Monies received for work performed
upon Federal , State , county, municipal , or other work -relief projects shall be considered as
earnings See Republic Steel Corporation v N L R B, 311 U. S 7
13 N L R B v Express Publishing Co., 312 U. S. 426
J
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industrial Organizations, the respondent has engaged in and is engaging is
unfair labor practices within the meaning of Section 8 (3) of the Act
3. By said conduct the respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
and has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (1) of the Act
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Lewis Meier & Company, Indianapolis,'
Indiana, its officers, agents, and assigns shall:
1. Cease and desist from :
(a) -Discouraging membership in Amalgamated Clothing Workers of America,
affiliated with the Congress of Industrial Organizations, or any other labor
organization of its employees, by discharging or refusing to reinstate any of
its employees, of in any other manner discriminating in regard to their hire
or tenure of employment, or any' term or condition of employment ;
(b) Any other acts in any manner interfering with the efforts of its em-
ployees to designate a new bargaining representative to succeed an existing
bargaining representative upon the termination of the latter's contract by
operation of law or otherwise.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Leona Baker, Shirley Hurst, and Leona Kelly, and each of them,
immediate and full reinstatement to her former or substantially equivalent posi-
tion without prejudice to her seniority and other rights and privileges ;
(b) Make whole Leona Baker, Shirley Hurst, and Leona Kelly for any loss of
pay they may have suffered by reason of.the respondent's discrimination against
them by payment to each of them of a stun of money equal to that which she
normally would have earned as wages from the date of the respondent's discrimi-
nation against her to the (late of the respondent's offer of reinstatement, less her
net earnings 14 during such period ;
(c) Post at its plant at Indianapolis, Indiana, copies of the notice attached
to the Intermediate Report herein, marked "Appendix A" Copies of said notice,
to be furnished by the Regional Director for the Eleventh Region, shall, after
being duly signed by the respondent's representative, be posted by the respondent
immediately upon receipt thereof and maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places where notices to
employees are customarily posted. 'Reasonable steps shall be taken by the re-
spondent to insure that said notices are not altered, defaced, or covered by any
other material;
(d) File with the Regional Director for the Eleventh Region on or before ten
(10) days from the date of the receipt of this.Intermediate Report a report in
writing setting forth in detail the manner and form in which the respondent has
complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from tbe,date
of the receipt,of this Intermediate Report, the respondent notifies said Regional
Director in writing that it has complied with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
14 See footnote 1 2, supra.
LEWIS MEIER & COMPANY 537
As provided ui -Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board. Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D C, an original and four copies- of a
statement in writing, setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original' and four
copies of,a:brief in support thereof., Immediately, upon the filing-of suchustate-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a copy
with the Regional Director. As further provided in said Section-33, should any
party desire permission to argue orally before the Board, request therefor must
be made in writing to the Board within ten (10) days from the date,of the order
transferring the case to the Board. Any party desiring to submit a brief in
support of the Intermediate Report shall do so within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, by filing with
the Board an original and four copies thereof, and by immediately serving a copy
thereof upon each of the other parties and the Regional Director.
HENRY J. KENT,
Trial ;E.Taminer.
Dated July 18, 1946
APPENDIX A
NOTICE TO ALL Em'LOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies-of the National Labor Re-
lations Act,-we hereby notify our employees that;
WE WILL NOT discourage membership in AMALGAMATED CLOTHING
WORKERS OF AMERICA, -C. I 0., or any other labor organization of.our
employees, by discharging or refusing to reinstate any of our employees or
by discriminating in any other' manner in regard to their hire and tenure
of employment or any term or condition of their employment, except insofar
as such conduct is protected by the proviso of Section 8 (3) of the Act.
WE WILL NOT engage in any other acts in any manner interfering with
the efforts of our employees to designate a new bargaining representative
to succeed an existing bargaining representative upon the termination of the
latter's contract.
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,
° and make them whole for any loss of pay suffered as a result of the dis-
crimination.
Leona Baker
Shirley Hurst
Leona Kelly
LEwls -MEIER COMPANY,
- ' Employer.
Dated --------------------- By -------------------------------
(Repiesentative) (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.