Millfay Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 5, 1937

2 N.L.R.B. 919 (N.L.R.B. 1937)

In the Matter of MILLFAY MANUFACTURING COMPANY, INC. and
AMERICAN FEDERATION OF HOSIERY WORKERS, BRANCH 40
Case No. C-172.-Decided June 5, 1937
Hosiery Manufacturing Industry-Interference, Restraint or Coercion: es-
pionage ; surveillance of organizational meetings ; expressed opposition to labor
organization , threats of retaliatory action ; denial of right of employees to be
represented by non-employees-Company-Dominated Union : abortive attempt to
initiate and form-Strike : provoked by employer ' s attempt to impose company-
dominated union upon employees ; prolonged because of refusal to bargain col-
lectively-Employee Status: during strike-Unit Appropriate for Collective
Bargaining : plant ; eligibility for membership in only organization among em-
ployees-Representatives : proof of choice : application for membership in union ;
election ; participation in strike-Collective Bargaining : employer 's duty as
affected by strike , by majority rule ; refusal to meet, recognize , and negotiate
with representatives ; failure or refusal to make counter proposals ; no bona
fide intent to bargain collectively-Reinstatement Ordered, Strikers : strike pro-
voked by employer 's violation of Act ; displacement of employees newly-hired
during strike.
Mr. Daniel B. Shortal for the Board.
Mr. William E. Barrett and Mr. John Sivendloff, of Buffalo, N. Y.,
for respondent.
Mr. Isadore Katz, of Philadelphia, Pa., for the Union.
Mr. David Persinger, of counsel to the Board.
DECISION
STATEMENT OF CASE
On November 28, 1936, the American Federation of Hosiery Work-
ers filed a charge with the Regional Director for the Third Region
(Buffalo, New York), against the Millfay Manufacturing Company,
Inc., Buffalo, New York, charging that Company with violations of
Section 8, subdivisions (1), (2), and (5) of the National Labor Rela-
tions Act, 49 Stat. 449, hereinafter called the Act. On January 4,
1937, the American Federation of Hosiery Workers filed a supple-
mental charge alleging that the Millfay Manufacturing Company,
Inc., hereinafter referred to as respondent, had violated Section 8,
subdivisions (1), (2), (3), and (5) of the Act. On February 13,
1937, the Board issued its complaint against respondent alleging that
respondent had engaged in unfair labor practices affecting commerce,
within the meaning of Section 8, subdivisions (1), (2), (3), and (5),
919
920 NATIONAL LABOR RELATIONS BOARD
and Section 2, subdivisions (6) and (7) of the Act. The complaint
and accompanying notice of hearing were duly served upon the par-
ties. On February 20, 1937, respondent filed its answer denying the
allegations in the complaint, and alleging that the Board is without
jurisdiction and that the complaint is defective.
On March 1, 2, and 3, 1937,, pursuant to the notice, a hearing was
held at Buffalo, New York, before Walter Wilbur as Trial Examiner
duly designated by the Board. Respondent was represented by coun-
sel and participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to produce evidence
bearing on the issues was afforded all parties.
At the beginning of the hearing respondent objected to the con-
tinuance of the proceedings until the question of jurisdiction raised
in its answer had been determined. The Trial Examiner overruled
the objection. At the conclusion of the hearing respondent moved
to dismiss the complaint on the ground that the Board had failed to
prove its jurisdiction. The Trial Examiner denied the motion. The
Board has reviewed these and other rulings of the Trial Examiner
and' finds that no' prejudicial 'errors were committed. The rulings
are hereby affirmed.
On April 28, 1937, the Trial Examiner filed his Intermediate Re-
port in which he found that respondent had committed unfair labor
practices in violation of Section 8, subdivisions (1), (2), and (5) of
the Act. He found that the evidence as to the discharge of Henry
Ostempowski was not conclusive.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. RESPONDENT AND ITS BUSINESS
Respondent is a corporation- organized , under the laws of the State
of New York on December 13, 1922, with its office and plant in
Buffalo, New York. It is engaged in the manufacture of full-fash-
ioned ladies' hosiery for the Berkshire Knitting Mills, Reading,
Pennsylvania . The Berkshire Knitting Mills, which owns stock in
respondent , is one of the largest concerns in the industry.
The raw materials used by respondent are silk and mercerized cot-
ton yarn . The silk comes from Japan . It is purchased by the Berk-
shire Knitting Mills and shipped to the Duffy Mills, Buffalo, New
York, to be thrown. The thrown silk is transported by truck from
the Duffy Mills to respondent's plant to be knitted into stockings.
Mercerized cotton yarn is purchased by the Berkshire Knitting Mills
from factories in Pennsylvania and is shipped to respondent to be
knitted into stocking tops.
DECISIONS AND ORDERS 921
Respondent's operations are divided into eight departments, viz.,
legging, topping, footing, looping (the process whereby the heel is
fastened to the toe), seaming, examining, mending, and shipping.
Under normal operating conditions respondent's weekly production
amounts to about 5,000 pairs of hose.
The Berkshire Knitting Mills instructs respondent how the stock-
-ings are to be made, how many are to be knitted, to what destination
they are to be sent, and how long shipments are to continue.
Hosiery is shipped from respondent's mill "in the gray", and must
be boiled, dyed, boarded, and boxed before it is ready for the con-
sumer market. From 1927 to about April, 1936, all of respondent's
products were shipped out of the State to be finished at the Reading,
Pennsylvania, plant of the Berkshire Knitting Mills. Since about
April, 1936, all respondent's goods have been finished by two inde-
pendent concerns in New York City and in Philadelphia, Pennsyl-
vania, in accordance with orders from the Berkshire Knitting Mills.
Respondent charges the Berkshire Knitting Mills for labor only,
and presents its bill.for each shipment at a price per dozen hose.
Approximately 500 workers, about one half of whom are girls,
were employed at respondent's mill on December 7, 1936; the day
preceding the strike. At that time respondent operated a day shift
and a smaller night shift.
*II. THE UNION
The American Federation of Hosiery Workers is a national'labor
organization affiliated with-the United Textile Workers of America.
Branch 40 is a local of,the American Federation of-Hosiery Workers,
and is a labor organization.
III. THE UNFAIR LABOR PRACTICES
A. Interference with the employees in the exercise of the right to self-
organization
Early in November, 1936, the American Federation of Hosiery
Workers, hereinafter referred to as the Union, sent two organizers
to Buffalo for the purpose of organizing the employees of respond-
ent. The organization drive was completed on January 9, 1937,
when 452 of the employees received a charter from the Union and
thereby became Branch 40.
About November 10, 1936, the Union held a meeting at which a
number of respondent's employees, including Walter Stackewicz,
were present. Stackewicz testified that he was present with the
knowledge and approval of Lebo, superintendent of the mill. Max
Mosloff , a foreman at the mill, waited outside the meeting and wrote
922 NATIONAL LABOR RELATIONS BOARD
down the name of each employee who left. Stackewicz met Mosloff
and reported to him all that had transpired.
The next day the employee who had been last to leave the meeting
was assigned as helper to Stackewicz. Lebo told Stackewicz that
he did not want the helper to remain in respondent's employ. Ac-
cordingly, Stackewicz deliberately spoiled his helper's work to such
an extent that the latter finally resigned. A foreman complimented
Stackewicz on his successful execution of a delicate assignment and
promised him a raise in pay. Lebo confirmed the promise.
On November 23, Lebo addressed all the employees in the mill. At
that time the workers at the Duffy Mills (see Section I, above) were
on strike and were picketing respondent's plant. Lebo warned the
employees not to be influenced by the Duffy Mills strike because re-
spondent would never operate a union shop.
That night a second meeting was held and a number of the mill em-
ployees were present. At least 80 leggers signed applications for
membership in the Union. Again Mosloff waited outside and noted
each employee who left.
The following day Lebo told several employees who had attended
the meeting that their work was not satisfactory and that they were
to be fined. The fines were not actually levied.
On Saturday, November 30, the Union called a third meeting.
Many of respondent's employees attended and several expressed
strong dissatisfaction with the system whereby any employee in the
mill could be fined by a foreman or Lebo without previous notice
of those acts or omissions which would subject him to a fine. The
leggers voted to strike in protest. As before, Mosloff waited outside
the meeting hall, but on this occasion Henry Jinteck, the night fore-
man, was with him. These two watched the mill employees leave.
On December 2, the next working day, 80 leggers struck and joined
the Duffy Mills pickets around respondent's plant.,
The presence of a foreman outside the Union meeting_place on
three occasions, the presence of Stackewicz as a spy at the first meet-
ing, the successful attempt to force Stackewicz's helper to resign,
and Lebo's warning to all employees to have nothing to do with an
outside labor organization on pain of the loss of their jobs, constitute
flagrant intimidation of the employees. We find that respondent
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
1 It may reasonably be assumed that the Duffy Mill strikers picketed the plant of
respondent because of the relations between respondent and the Duffy Mills, set forth in
Section I, above.
DECISIONS AND ORDERS 923
B. The discharge of Henry Ostempowski
The evidence relating to the allegation in the complaint that re-
spondent discharged Henry Ostempowski because he engaged in
union activity, and in so doing committed unfair labor practices in
violation of Section 8, subdivisions (1) and (3) of the Act, is not
clear. Ostempowski, the only witness on the question of his dis-
charge, testified that he attended the first Union meeting about No-
vember 12, 1936, and the second on November 23. He planned to be
present at the third meeting on November 30, but met Mosloff and
Jinteck outside the meeting hall and decided not to go in.
Ostempowski further testified that on December 2, the next work-
ing day after the November 30 meeting, his regular helper was trans-
ferred to another machine and replaced by a new man. Ostempowski
asked why the change was made but received no explanation. While
Ostempowski and his new helper were turning welts the same day,
Lebo walked up and asked how long the helper had been employed in
the mill. He was told that the helper had worked three and a half
months. Lebo said that in that time he had not yet learned to turn
welts, and then apparently without further explanation discharged
Ostempowski.
The circumstances surrounding Ostempowski's discharge are con-
fusing. No connection is shown between Lebo's question about the
helper's experience and his dismissal of Ostempowski. We agree
with the Trial Examiner that the evidence with respect to Ostem-
powski is not conclusive. We will not therefore decide his case at
this time, but will order that the record be reopened for the purpose
of receiving further evidence relating to his discharge.
C. Domination and interference with the formation of a labor
organization
On Monday, December 7, John Peters, Edmund Syroczynski, Mike
Wilk, and Edward Stortz, hereinafter referred to as the four men,
were discussing the formation of an independent association of re-
spondent's employees when Lebo approached them and inquired why
they were not at work. Stortz said they were talking of organizing
an independent association as suggested by Wilk. Before anyone
had time to explain to Lebo the nature of the association he launched
into a lengthy description of its merits.
In reply to a question by Stortz, Lebo said that the four men
could promise those employees interested in joining the association
that conditions in the mill, including wages, would remain un-
changed. He said that before he could give his permission for the
four men to solicit members he would have to consult his superiors.
While the four men waited for Lebo to return, three foremen came
924 NATIONAL LABOR RELATIONS BOARD
up to them and pointed out the benefits which would accrue to the
members of such an organization. Later Mr. Welch, bookkeeper in
Lebo's office, told the four men, that he had thought of such an
organization the day before and had prepared a draft of a petition
to be circulated among the workers. Wilk had said to the other
three that he had thought of forming an association only that morn-
ing. The coincidence that Welch should have had the same idea
the day before created a suspicion in the minds of Peters, Syroczyn=
ski, and Stortz that all was not above board.
The four men met with Lebo and again asked what they could
promise the employees who would be willing to join such an
association. Welch, who was still present, interrupted to suggest
they promise the establishment of a committee to present grievances
to the management. Lebo agreed and said he would also grant a
wage increase. Upon demand he refused to put his concessions in
writing. Thereupon, Stortz said he would have nothing further to
do with the matter. Peters and Syroczynski agreed with him. Wilk
said he would abide by their decision. However,N.that,evening• Wilk
and others circulated petitions 2 and a number of employees on the
night shift signed up for the association. The association made no
further progress because, as will appear subsequently, the employees
struck the next day in protest against respondent's efforts to
organize it.
As we have said in a comparable case :
"In our opinion, Section 8, subdivision (2) of the Act forbids
domination or interference not only where it is successful, and
a labor organization is actually formed, but also makes it an
unfair labor practice where the domination or interference is
unsuccessful. In this case, the respondent was unsuccessful be-
cause of the firmness of its employees. , Since the Act is remedial,
it is appropriate to require the respondent to cease and desist
from unfair labor practices which may, at some future time, be
more successful."
It is clear from the evidence that respondent attempted to domi-
nate and interfere with the formation of the association. Lebo and
a number of foremen went out of their way to express their ap-
proval of the association and permitted four employees to shut down
their machines during working hours in order to discuss plans for
organizing it. Lebo told Stortz that before the four men could
actively begin organizing he would have to get in touch with his
2 The evidence does not make it clear whether these petitions were the same as the
one drafted by Welch.
'In the Matter of Canvas Glove Manufacturing Woihs, Inc, I N L R B 519
DECISIONS AND ORDERS 925
superiors. Later that day he approached Stortz and told him that
the plan had been approved and that Stortz was to go ahead With
it. When Stortz refused, Lebo accused him of not considering the
interests of respondent. Beyond all this, there is the suspicious
circumstance that Welch, Lebo's bookkeeper, and Wilk conceived
the notion of the association almost simultaneously, and yet tried
to give the appearance of following independent courses of action.
It is clear from this evidence that respondent was disposed to
tolerate the proposed association only if it suited its own plans.
Even if it be assumed that respondent, through its agents, did not make
the original suggestion, respondent at least seized the opportunity
to turn the proposal to its own ends. Thus, Lebo had the four men
wait while he consulted his superiors as to the advisability of the
association from respondent's point of view. It is not the privilege
of an employer to approve or disapprove of a projected labor organi-
zation of his employees. In this case, respondent made its own inter-
est in the association all the more obvious when Lebo berated Stortz
for abandoning. the project.
We therefore find that respondent attempted to dominate and inter-
fere with the formation of a labor organization, and, by such acts,
interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
D. The refusal to bargain
1. The unit
The Union contends that the employees in the eight departments
constitute a unit appropriate for the purposes of collective bargain-
ing. At the hearing respondent raised no objection to the appro-
priateness of this unit. In fact, as is set forth below, Lebo has ex-
pressed a' willingness to bargain with a committee composed of one
representative of each department of the mill. Obviously he re-
garded the employees in all departments as constituting an appro-
priate bargaining unit.
We find that a unit composed of the employees in the legging,
footing, topping, looping, seaming, examining, mending, and ship-
ping departments of the mill, except those in a supervisory capacity,
would insure to the employees the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuate
the policies of the Act, and constitutes a unit which is appropriate
for the purposes of collective bargaining with respect to rates
of pay, wages, hours of employment, and other conditions of
employment.
926 NATIONAL LABOR RELATIONS BOARD
2. Majority representation
On the morning of December 8, 1936, the employees at the mill
-expressed concern at the action of the night shift the previous day
in signing the petition for an association. In protest against the
attempts of respondent to foist a company dominated union upon
them, they voted to strike, shut off their machines, and sat down.
Shortly thereafter Lebo came on the floor of the mill to find out
why no work was being done. Stortz, acting as spokesman for the
employees, explained their action. Lebo suggested that they vote
for the association or for an outside union, and that at the same
time each department elect a representative to discuss the situation
with the management. Lebo said that he would bargain with a
committee of department representatives so long as the workers did
not affiliate with an outside organization.
A vote was taken and about 385 of the approximately 400 em-
ployees present voted for an outside union. Each of the eight depart-
ments elected a representative and the representatives formed a
committee, hereinafter referred to as the committee. The committee
thereupon presented its demands to Lebo.who said he would grant
two of them but was without authority to bargain about the others.
The committee asked that he put his two concessions, in writing, but
Lebo refused and the committee retired.
Later that day the committee again called on Lebo and asked that
Lebo meet with Mr. Held, organizer for the Union, as representative
of a majority of the employees. Lebo refused to meet any outsider
and the committee withdrew. The committee then got in touch with
Held and invited him to come into the mill and address the strikers.
He did so and passed out applications for membership in the Union.
At the hearing Edward Przesiek, Treasurer of Branch 40, testified
to the number of applications for membership in the Union signed
by the striking employees, the dates on which they were signed, and
the dates on which they were transmitted to the Union; the number
of members who had paid initiation fees and dues, the dates on which
these were paid, and the dates on which the initiation fees were
transmitted to the Union. Throughout his testimony Przesiek con-
stantly referred to the official books and records of Branch 40 which
he had with him on the witness stand. Respondent cross-examined
Przesiek on his testimony and had full opportunity to examine the
books and records of Branch 40.
Przesiek, in his testimony, in connection with which he referred to
his books and records, stated that on December 8, 1936, when Held
addressed the strikers, 385 employees signed applications for mem-
bership in the Union. He also testified that on December 10, when
Held was elected representative, 452 employees had signed applica-
DECISIONS AND ORDERS 927
tions for membership. He further testified that on January 9, 1937,
when the strikers received their charter from the Union and
Branch 40 was established, 482 employees had signed applications,
for membership in the Union.
If there were any doubt as to the representation by the Union of
a majority of respondent's employees, it would be dispelled by an
examination of the other circumstances in the case. Thus, on De-
cember 8, the sit-down strikers voted 385 to 16 in favor of an "outside
union". The Union was not specifically named but it was the only
active union in the community in which the employees were eligible
for membership, and it had been attempting to organize the mill for
over a month. Under the circumstances it is a fair inference that
the strikers meant the Union when they voted for an "outside union".
It was Lebo who suggested that the vote be taken. When he met
with the committee that day and refused their request to meet with
Held he avoided mentioning the Union by name but referred to
"outsiders". It is fair to assume that he, too, meant that the em-
ployees: choose between the Union and the association when he
suggested the vote.
At the same time that the strikers voted for an "outside union"
they elected the committee to represent them. Thereafter Lebo met
with the committee several times and recognized them ' as represent-
ing the striking workmen. On several occasions Barrett, president'
of respondent, met with the committee as representative of the strik-
ers. But at all times both Lebo and Barrett refused to even consider
meeting with an "outsider", as they called Held, although the com-
mittee repeatedly requested them to do so, because, as the committee
told them, the employees had by vote and otherwise designated the
Union as their representative.
Obviously respondent was aware that more than four-fifths of its
employees were on stfike on December 8 and at all times thereafter.
Also respondent was aware that 385 employees had, on December 8,
expressed a preference for an "outside union", which could only
have meant the Union. Respondent recognized that the committee
represented an overwhelming majority of its employees and was
repeatedly informed by the committee that all the employees whom it
represented had designated the Union , as their bargaining
representative.
Under all the circumstances we find that on December 8, 1936, and
at all times thereafter, the Union was the representative of a ma-
jority of the employees in the appropriate unit, and by virtue of
Section 9 (a) of the Act, was the exclusive representative of the
employees in the unit, for purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, and other conditions
of employment.
928 NATIONAL LABOR RELATIONS BOARD
3. The refusal to bargain
On December 9 the strikers left the mill and joined the leggers'
and Duffy Mills' pickets around respondent's plant. The strike is
still going on.
We find that the strike begun on December 8, 1936, and continuing
at the time of the--hearing; is a; controversy concerning the represen-
tation of employees in negotiating and seeking to arrange terms and
conditions of employment. We find therefore that the work of re-
spondent's employees ceased because of a current labor dispute, and
that they were, on December 8, 1936, and have been at all times since,
employees of respondent.
On December 10, 1936, all the mill strikers, about 452, held a meet-
ing, set up an organization which later became Branch 40, and elected
officers who continued as officei:s of Branch 40. Stortz was elected
president. Held was designated as representative.
On December 16, a conference was arranged between Mr. Barrett,
president - of respondent,4 and the - committee . and Held." Barrett
refused to talk with an "outsider" "and insisted that Held withdraw.
In order not to interfere with a possible settlement of the labor
dispute, Held retired.
The committee demanded that the Union be recognized as the col-
lective bargaining representative of the strikers. The entire confer-
ence was taken up by Barrett in questioning the committee on the
meaning of "union recognition". At the close of the conference it
was agreed that the committee should present its demands in writing
and that respondent should reply in writing. This was done.
Respondent's reply, unsigned, stated : , -
"After our lengthy discussion and after: consideration of your
collective demands the company.='finds^it -caiinot^-agree to-'them.
Further bargaining would be futile. In view of the basic claims
and principles contained in the demands and developed in the
discussion further conferences would not be fruitful."
The answer concluded with the statement that the mill would re-
main closed for the present.
On January 9, 1937, the strikers received their charter from the
Union and Branch 40 was formally established. At that time the
membership was substantially the same as on December 10, 1936.
On February 20, 1937, the committee met with Barrett in the
rectory of Father Justyn, a local priest, and asked that Held be
present. Barrett refused. This meeting was as unsuccessful as
4 Mr. Barrett is the same wm. E. Barrett who acted as counsel for 'respondent at the
hearing.
5 A stenographic report of the conference was entered in the record as Board's Exhibit
No. 8.
DECISIONS AND ORDERS 929
that of December 16. The committee restated its demands and Bar-
rett flatly refused them. He then made respondent's only "counter-
offer", viz., that each employee sign an individual contract !
The committee submitted respondent's proposal to the vote of
Branch 40 and it--was rejected. New demands were drafted in the
"form of a written contract between the Union and respondent. The
first line read :
"This agreement entered into this' day of February, 1937,
between the American Federation of Hosiery Workers, an unin-
corporated association of hosiery workers, and the'Millfay Manu-
facturing Company, Inc. . . "
On February 22, Stortz presented the above contract to Barrett
who took one look at it and said, "This is no good. The first line
alone eliminates this proposal. This is nothing but a union contract.
Here you, are refusing my proposal, and here you bring one of your
own in." Stortz asked Barrett to discuss the matter with Held.
Stortz testified, "Barrett said he would not see Held if hell froze."
Respondent consistently refused to meet with and recognize Held
as the representative of its employees, although at no time did re-
spondent question that a very large majority of its workers had
designated the Union as their representative. At the hearing re-
spondent objected that the Union had not submitted proof of its
claim to represent a majority of the employees. At no time pre-
viously had respondent asked for such proofs, and the tenor of all
respondent's relations with its striking employees leads us to believe
that this objection was an afterthought that did not influence re-
spondent in its relations with its employees prior to March 1, 1937.
,In view of the events above set forth, it must have been obvious to
respondent that a large majority-of its employees had designated
the Union 'as their bargaining representative.
Respondent at no time refused to meet with Held unless proof
of his official status was presented, but instead it refused to meet
with Held or any "outsider" under any conditions.
The December 16 conference upon which respondent seems to rely
as evidence of its good faith in attempting to reach a collective agree-
ment with its employees then on strike, indicates the complete absence
of any intent on the part of respondent to bargain collectively. The
entire conference , which lasted several hours, was consumed in what
amounted to a cross-examination of the committee on its interpreta-
tion of "union recognition." Respondent's reply to the written
demands made by the Union thereafter, pursuant to the understand-
ing reached at the end of the conference, amounts to a flat refusal
to engage in further discussion.
Barrett's attitude at that and at all succeeding conferences is indi-
cated in a remark he made in reply to an attempt by a committeeman
930 NATIONAL LABOR RELATIONS 'BOARD
to 'explain- that under a collective agreement the employees would
do better work because their morale would be improved. Barrett
said, "You are opening a question that will last all night, whether
you can run the plant better or whether we can." Such a ,remark
shows the absence of any desire or intent by respondent to under-
stand the problem or seek a solution through the medium of mutual
discussion and collective bargaining. To Barrett it was solely -a
question of whether he and the other officials of respondent were to
continue to operate the mill in any manner they saw fit regardless
of the rights of their employees.
At the conference on February 20 respondent for the first and last
time offered a "counter-proposal". This "counter-proposal" was that
collective bargaining be discarded and individual bargaining
substituted.
On February 22 Barrett met with a representative of the striking
employees for the last time. Stortz handed him a proposed contract
which he flatly refused even to read because it embodied the name
of the Union.
To completely clarify respondent's attitude toward collective bar=
gaining it, is only necessary to mention the colloquy between Barrett,
in his capacity as counsel for respondent, and the Trial Examiner
at the hearing :
"Mr. Barrett : This contract they brought here was a closed
shop contract.
"Trial Examiner Wilbur : I did not catch that as I read it.
Perhaps I I. missed something.
"Mr. Barrett: It,is an exclusive bargaining contract, the same
thing.
"Mr. Katz : Oh, no, it is not.
"Mr. Barrett : It is in my viewpoint. It is -a matter of law,
how we describe a closed shop contract."
Barrett's statements to the Trial Examiner when considered in
conjunction with respondent's written reply to the committee's de-
mands, makes it evident that respondent does not intend to comply
with the provisions of the Act until compelled to do so.
We find that 'on December 8, 1936, and at all times thereafter,
respondent has refused to bargain collectively with the representa-
tives of its employees.
By refusing to bargain collectively with the' representatives of its
employees, respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
The activities of respondent set forth in Section III above, occur-
ring in connection with the operations of respondent described in
Section I above, have a close, intimate and 'substantial relation to
DECISIONS AND' ORDERS 931
trade, traffic, and commerce among the several States, and have led
and tend to lead to labor disputes burdening and obstructing com-
merce and the free 'flow of commerce.
THE REMEDY
The employees struck on December 8, 1936, because respondent
attempted to dominate and interfere with the formation of a labor
organization. The strike was continued and other employees joined
it because respondent refused to bargain collectively with the repre-
sentative of the majority of the employees. The employees struck,
and have continued to strike, because of respondent's unfair labor
practices (see Conclusions of Law, below) and are, therefore, entitled
to be reinstated to their former positions. We shall order that the
employees who went out on strike be offered reinstatement to their
former positions.6
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact the Board makes
the following conclusions of law :
1. The American Federation of Hosiery Workers is a labor organi-
zation, within the meaning of Section 2, subdivision (5) of the Act.
2. By its attempt to dominate and interfere with the formation
of a labor organization, respondent has engaged in -and is engaging
in unfair labor practices, within the meaning of Section 8, subdivi-
sion (2) of the Act.
3. Respondent's employees in the legging, footing, topping, loop-
ing, seaming, examining, mending, and shipping departments of
respondent's mill, not in a supervisory capacity, constitute a unit
appropriate for purposes of-colleciive bargaining, within the mean-
ing of Section 9, subdivision (b) of the Act.
4. By virtue of Section 9, subdivision (a) of. the Act; the American
Federation of Hosiery Workers, having been designated by a ma-
jority of the; employees in' a unit appropriate for the purposes of
collective bargaining, has been at all times since December 8, 1936,
the exclusive representative of all the employees in such unit for
the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
5. By refusing to bargain collectively with the representatives of
its employees, respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8, subdivision (5) of
the Act.
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, re-
In the Matter of Columbian Enameling and Stamping Co, I N. L. R. B. 181.
5727-37-vol u-60
'932 NATIONAL LABOR RELATIONS BOARD
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8, subdivision (1) of the Act.
7. The strike which began on December 8, 1936, and was continu-
ing at the time of the hearing, is a labor dispute, within the meaning
Of Section 2, subdivision (9) of the Act.
8:-Respondent's, employees on strike at the date of the hearing are
employees, within the meaning of Section 2, subdivision (3) of the
Act.
9. The unfair labor practices in which respondent has engaged and
is engaging are unfair labor practices affecting commerce, within
the meaning of Section 2, subdivisions (6) and (7) of the Act.
ORDER
Upon the basis of the findings of fact and conclusions of law, and
pursuant to Section 10, subdivision (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
respondent, Millfay Manufacturing Company, Inc., its,officers,,agents,
successors, and assigns, shall:
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights to self-
organization, to form, join, and assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargain-
ing and other mutual aid and protection;
2. Cease and desist from dominating and interfering with the
formation or administration of any labor organization of its em-
ployees, or contributing financial or other support to it; or from
attempting to do so;
3. Cease and desist from refusing to bargain collectively with the
American Federation of Hosiery Workers as the exclusive repre-
sentative of all its employees in the legging, footing, topping, loop-
ing, seaming, examining, mending, and shipping departments of
respondent's mill, except those in a supervisory capacity, in respect
to rates of pay, wages, hours of employment or other conditions of
employment.
4. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer reinstatement to all employees of "respondent on strike
on March 1, 1936, the date of the hearing, who have not obtained
any other regular and substantially equivalent employment, dis-
missing if necessary, persons employed for the first time since De-
cember 8, 1936;
(b) Upon request, bargain collectively with the American Fed-
eration of Hosiery Workers as the exclusive representative -of -all
DECISIONS AND ORDERS 933
its employees in the appropriate unit in respect to rates of pay,
wages , hours of employment , and other conditions of employment;
(c) Post notices in conspicuous places throughout all departments
of respondent 's mill stating ( 1) that respondent will cease and de-
sist in the manner aforesaid , and (2 ) that such notices will remain
posted for a period of at ; least thirty (30) consecutive days from
the date of posting; and
(d) Notify the Regional Director for the Third Region in writing
within ten (10 ) days from the date of this order what steps respond-
ent has taken to comply herewith.
It is further ordered that the record be reopened for the purpose
of receiving further evidence relating to the discharge of Henry
Ostempowski.