Missouri Bag Co.

National Labor Relations Board - Board Decisions

Sep 22, 1950

91 N.L.R.B. 385 (N.L.R.B. 1950)

In the Matter of MlssouRi BAG COMPANY and TEXTILE WORKERS UNION
OF AMERICA , C. I. O.
Case No. 14-C,A.-31.9.Decided September 22,1950
DECISION AND ORDER
On June 16, 1950, Trial Examiner Louis Plost issued his Intermedi-
ate Report in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging 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. The Trial Examiner also found that the Respondent
had not engaged in certain other alleged unfair labor practices, and
recommended that the complaint be dismissed with respect to such al-
legations . Thereafter, the Union filed exceptions to the Intermediate
Report and a supporting brief, and the Respondent filed a reply.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
Union's exceptions and brief, the Respondent's reply,2 and the entire
record in the case, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner, except insofar as they are in-
consistent with this Decision and Order.
1. The Trial Examiner found that Supervisor Simpson interro-
gated applicant George Chester regarding union membership. Be-
cause of a variance between the allegations of the complaint and the
proof; he concluded, however, that such interrogation did not form.
the basis for an unfair labor practice finding. The Union excepted.
In our view, the complaint herein adequately encompassed this act of
interrogation by Simpson, and we regard the alleged minor variance
between the allegation in the complaint and the proof in this case as
. 1 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Herzog and Mem-
bers Houston and Styles].
The Respondent 's reply is in substance a motion to strike the Union's exceptions, on
the ground that such exceptions refer to evidence which is not part of the record in this
proceeding . As any party has a right to file exceptions to the Intermediate Report, the
Respondent 's motion to strike is hereby denied . We have not , however, considered any
evidence which is not a part of the record herein.
91 NLRB No: 48.
385
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immaterial.3 We find, accordingly, that by virtue of Simpson's inter-
rogation of Chester, the Respondent further interfered with, re-
strained, and coerced employees, in violation of Section 8 (a) (1) of
the Act.
2. We also disagree with the Trial Examiner's finding, to which
the Union excepts, that the Respondent did not discriminate against
Louise Foster. Foster's uncontraverted testimony, as related by the
Trial Examiner, established that when she returned to work after her
first illness, she was interrogated by Simpson as to whether she had
"signed a paper for the union man." When Foster admitted that she
had, Simpson advised her that she had "signed (herself) out of a job,"
and sent her home, cautioning her not to have anything to do with the
Union. Foster was recalled about 2 weeks later 4 In addition, the
record contains an admission by Simpson that of the employees who
advised her, before Foster's layoff, that they had joined the Union, Fos-
ter was the only one who did not send a letter of revocation to the
Union. On these facts, we find the conclusion that Foster's layoff was
motivated by her union activity compelling. Accordingly, we find
that the Respondent thereby discriminated against Foster, to discour-
age membership in the Union, in violation of Section 8 (a) (3) and
(1) of the Act.
The Remedy
Having found that the Respondent discriminated with respect to
the tenure of employment of Louise Foster, we shall order the Re-
spondent to cease and desist therefrom, and to make Foster whole for
any loss of pay she may have suffered during the period of her dis-
criminatory layoff by payment to her of a sum of money equal to the
amount she would normally have earned as wages during the said
period, less her net earnings,5 if any, during that period.
We shall also order the Respondent to make available to the Board
upon request payroll and other records to facilitate the.checking of
the amount of back pay due.6
3 The complaint alleged that Chester was questioned "with respect to his membership on
behalf of the union" (emphasis added). The evidence establishes that Simpson inquired
of Chester, "You ain't no union man , are you?"
4 Although the record does not establish precisely the period of Poster's layoff, it appears
that she was laid off approximately 2 weeks after the November 1, 1949, election at the
Respondent's plant, and was recalled about 2 weeks later, after unfair labor practice
charges had been filed.
B 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, which would not have been incurred but for this unlawful discrimination, and the
consequent necessity of seeking employment elsewhere. Crossett Lumber Company, 8 NLRB
440. Monies received for work performed upon Federal, State, county, municipal, or other
work-relief projects shall be considered as earnings. Republic Steel Corporation V.
N. L. R. B., 311 U. S. 7.
OF. W. Woolworth Company, 90 NLRB 289.
MISSOURI BAG COMPANY 387
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Missouri Bag
Company, St. Louis, Missouri, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Textile Workers Union of Amer-
ica, C. I. 0., or in any other labor organization of its employees, by
discriminating in regard to their hire or tenure of employment or any
term or condition of their employment, except to the extent permitted
by the proviso of Section 8 (a) (3) of the amended Act;
(b) Inquiring into the union membership of any of its employees
or in any manner interrogating or questioning any of its employees or
applicants for employment with respect to their union membership,
or activities, connections, or sympathies;
(c) Causing any of its employees to write letters to Textile Work-
ers Union of America, C. I. O., 'or to any other labor organization,.
withdrawing their membership therefrom, or in any manner suggest-
ing the writing of such letters, or writing or mailing such letters for
and in behalf of any of its employees ;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights of self-organization, to
form labor organizations, to join or assist Textile Workers Union of
America, C. I. 0., or any other labor organization, to bargain collec-
tively through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid,or protection, or to refrain from any or all of such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Make whole Louise Foster for any loss of pay she may have
suffered by reason of the discrimination against her, during the period
from approximately November 14, 1949, to approximately November
28, 1949, by payment to her of a sum of money equal to the amount.
she normally would have earned as wages during the said period,,
less her net earnings, if any, during that period;
(b) Post at its plant at St. Louis , Missouri , copies of the notice
attached hereto and marked Appendix A.' Copies of said notice to
7 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words "Decision and Order ," the words "Decree of the
United States Court of Appeals Enforcing."
917572-51-vol. 91-26
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be furnished by the Regional Director for the Fourteenth Region
shall, after being duly signed by the Respondent's representative, be
posted by it immediately upon receipt thereof and be maintained by it
for a period of at least sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent
to insure that such notices are not altered, defaced, or covered by any
other material;
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security pay-
ment records, time cards, personnel records and reports, and all other
records necessary to analyze the amount of back pay due;
(d) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that except as otherwise found herein,
the complaint be, and it hereby is, dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in TEXTILE WORKERS
UNION OF AMERICA, C. I. 0., or in- any other labor organization of
our employees, by discriminating in regard to their hire or tenure
of employment or any term or condition of employment.
WE WILL NOT interrogate or question our employees or appli-
cants for employment with respect to their union affiliations,
activities, or sympathies, or cause any of our employees to write
letters to the above-named union or any other labor organization
withdrawing their membership from such organizations, or write
such letters or mail or cause such letters to be mailed for any of
our employees.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organi-
zation, to form labor organizations, to join or assist TEXTILE
WORKERS UNION OF AMERICA, C. I. 0., or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities, except to the
MISSOURI BAG. COMPANY 389
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
WE WILL make Louise Foster whole for any loss of pay suffered
as a result of the discrimination against her.
All our employees are free to become, remain, or to refrain from
becoming or remaining members in good standing in the above-named
union, or any other labor organization, except to the extent that this
right may be affected by an agreement in conformity with Section
8 (a) (3) of the Act.
MISSOURI BAG COMPANY,
Employer.
By -----------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
G lenn L. Moller, Esq., and John S. Patton, Esq., for the General Counsel.
Shvifrin c& Shifrin by Louis Sh .ifrin , Esq., of St. Louis, Mo., for the Respondent.
Mr. Wiliam A. Doyle , of St. Louis, Mo., for the Union.
STATEMENT OF THE CASE
Upon a third amended charge filed January 16, 1950, by Textile Workers Union
of America, C. I. 0., herein called the Union, the General Counsel of the National
Labor Relations Board, herein called the Board, by the Regional Director for
the Fourteenth Region (St. Louis, Missouri), issued a complaint dated March 8,
1950, against the Missouri Bag Company, St. Louis, Missouri, herein called the
Respondent, alleging that the Respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section 8 (a) (1) and (3) and
Section 2 (6) and (7) of the Labor Management Relations Act, 61 Stat. 136,
herein called the Act. Copies of the charge and the complaint together with a
notice of hearing were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges in substance
that (a) the Respondent discharged certain of its employees and thereafter re-
fused to reinstate them because of their activities on behalf of the Union;, (b)
that the Respondent refused employment to a certain applicant because of his
union activities; (c) that the Respondent interrogated employees and an appli-
cant for employment with respect to union membership and activities, threatened
union adherents with discharge and other discrimination, threatened to move
work out of its plant in order to discourage employee union activity; and (d)
that the above alleged acts and conduct are violative of the Act more particularly
of Section 8 (a) (1) and (3) thereof.
On March 17, 1950, the Respondent filed an answer in which it denied that it
had engaged in any of the unfair labor practices alleged in the complaint.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held at St. Louis, Missouri, on April 11 to 14,.
1950, inclusive, before Louis Plost, the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner. The General Counsel and the Respondent
were represented by counsel, the Union by a national representative. The repre-
sentatives of the parties are herein referred to in the names of their principals.
All the parties participated in the hearing and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, to introduce evidence bearing
on the issues, to argue orally on the record, and to file briefs, proposed findings of
fact, and conclusions of law with the undersigned. All the parties waived the
right to present oral argument.
At the opening of the hearing the undersigned granted, without objection, a
motion by the General Counsel to sequester the witnesses, likewise without ob-
jection the undersigned granted a motion to amend the complaint. A date was set
for the filing of briefs with the undersigned. The date was later, on request of
the Respondent, extended to May 15. Briefs have been received from the General
Counsel and the Respondent.
Upon the entire record in the case and from his observation of the witnesses
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, Missouri Bag Company, is a Missouri corporation, engaged
in the manufacture and processing of burlap and cotton bags at St. Louis, Mis-
souri. The Respondent annually purchases for use in its plant raw material.
valued in excess of $100,000 of which in excess of 50 percent is received from
points outside of Missouri.
The Respondent annually ships more than $100,000 worth of finished materiaL
of which more than 50 percent is to points outside Missouri.
II. THE ORGANIZATION INVOLVED
Textile Workers Union of America, affiliated with the Congress of Industrial
Organizations, is a labor organization within the meaning of Section 2 (5) of
the Act, admitting employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The illegal activities of Supervisor Ethel Simpson: William A. Doyle, national'
representative of the Union, testified that for more than 3 years various efforts
had been made to organize the Respondent's employees, the instant attempt hav-
ing started in June 1949.
The record discloses that on October 5, 1949, the Union filed a petition for an
election to determine a bargaining representative with the Regional Director for
the Fourteenth Region ; that a consent election agreement was entered into on
October 24; and that an election was conducted on November 1.
Vanilla Richards testified that on August 15, 1949, Ethel Simpson, a supervisor
and personnel director for the Respondent, called certain of the employees to-
MISSOURI BAG COMPANY 391
gether on the fourth floor of the plant and there spoke to them. Richards
testified :
She asked us that, all of us, signed a card. She asked us name by name,
"Did you sign a card to the union man"? Some of them said he did and
some of them said he didn't. So she said if they signed the card the onliest
thing she could see for them to do was but admit it because they was down
in Mr. Grodsky's office.
She said the onliest thing if we did, we signed the card admit it and she'd
take us down there and tell Mr. Grodsky we was sorry, we didn't know
what we was doing.
Richards further testified that during the course of her remarks Simpson said :
"Mr. Grodsky had a much larger and bigger factory in Decatur and he could
send his work there."
Richards' testimony with respect to the meeting above referred to was corrob-
orated by the testimony of other employees.'
Ethel Simpson testified that she first leatned of the Union's organization effort
among the Respondent's employees "some time in August." She testified :
Well when the first girl came and told me . . . So then I went up-
stairs. It was before dark and I went upstairs on the fourth floor at the
dressing room and told the girls, I said, "You want a union you don't have
to .hide it from me." I said, "You have a right to join a union or you have
a right not to join the union." I said, "It doesn't make any difference to
me." And then I told-always tell the truth and I asked them how many
of them had seen him [the Union's organizer] and he told.them not to tell
me and several of them said they had and the rest of them said they hadn't.
On cross-examination Simpson testified :
I didn't suggest anything. I• went up to the fourth floor. They were
coming out of the dressing room. It was early in the morning she brought
it to me, and I told all of them, I said, "You don't have to join the union it
you don't want to. You'll have a job either way." And I asked how many
of them had signed cards. Some of them said they had, some of them said
they hadn't.
Simpson denied saying that the Respondent could and would send work to a
plant in Decatur.
On the entire record considered as a whole and from his observation of the
witnesses the undersigned credits Vanilla Richards and finds that as between
Richards and Simpson, the account given by Richards with respect to the
August 15 gathering on the fourth floor, including the conduct and statements
of Ethel Simpson at the meeting, is the more accurate version and finds that
Simpson unqualifiedly asked "name by name" who had signed cards for the
Union ; told the assembled employees that the Respondent would send work
out of the plant, this statement being in effect a threat of loss of employment
' Corroborating Richards were Mamie Rogers, Carrie Patterson, Christine Washington,
Louise Foster, Priscilla Daniels, Elisa Ann Fowler, and Kathleen Seaggs.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the event of union organization of the plant; and further finds that Simpson
advised the Respondent's employees to abandon the Union.
It is well settled that conduct such as that found above is violative of the Act.
The undersigned therefore finds that by the above-found conduct of Supervisor
Ethel Simpson the Respondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act.
The letters of revocation: Vanilla Richards testified that "later on that eve-
ning," (August 15) Simpson."came up to our space and asked me whether I was
sure I didn't sign a card." Richards replied, "No ma'am I didn't sign one."
upon which Simpson remarked "the onliest thing she see for the girls to do that
signed the card is write the union man a letter and ask him for their cards back."
Richards further testified that Simpson asked employee Mary Petty, who was
working with Richards "what she think about it" and that Petty then told
Simpson "yes, ma'am, I write him if you tell me what to put on it."
According to Richard's testimony, sometime later during the afternoon of
August 15, she observed Simpson go into the dressing room holding paper and
envelopes in her hand ; that shortly thereafter Mary Petty entered the dressing
room ; that upon returning from the dressing room Petty "told Priscilla
[Daniels] Miss Ethel said to come in"; that Daniels then went into the room and
that when she came out employee Elnora Stringer went into the room.
Louise Foster testified that Simpson asked her to write a letter,to "the union
man" requesting the return of her signed union application card.
Priscilla Daniels, called by the General Counsel, proved to be a very reluctant
and hostile witness. The General Counsel plead surprise and was granted the
right to cross-examine. It was then developed that the witness was materially
changing the testimony she had given the General Counsel in affidavit form
only 3 days prior to the hearing.
Daniels first testified that no one had suggested that she ask for the return
of her signed union application but that she independently "just decided I'd write
and ask them for my union card back." Later in her testimony she admitted a
conversation with Simpson in which :
She just asked me to write the letter so that I could get my union card
back after I told her I didn't care to be in the union.
Daniels also admitted that Simpson "asked her to write the letter during a
conversation in the dressing room and also admitted that Simpson gave her "a,
piece of blue paper" which she used to make a carbon copy of her letter to the
Union. She testified that she wrote the letter at home, but admitted that the
envelope in which the letter was mailed was addressed in the dressing room,
and that Simpson gave her the Union's address "at the time I backed the enve-
lope" but maintained at the same time that when she addressed the envelope
in the dressing room she was alone. The envelope is addressed in ink, and the
letter is written in pencil. It is. also clear that the dressing room was locked
after the employees had changed clothes in the morning and was ordinarily
kept locked until quitting time.
The letters: Eight letters received by the Union from various of the Respond-
ent's employees were admitted in evidence. The letters may be briefly analyzed
as follows :
MISSOURI BAG COMPANY 393
Letter From- Dated Written in-
Post
office
regis-
try
number
No. I
Letter_________ Mary Petty___________ Aug. 17, 1949__________ Red pencil --------------------
Envelope- _ _ _ _ _ Reg. date Aug. 19______ ----- do ------------------------- 138, 397
No. 2
Letter--------- Beatrice Steel_________ Aug. 24. 1949__________ Blue ink----------------------
Envelope ------ Reg. date Aug. 24___ _ _ _ -----do---------------------- -- 138,924
No. 8
Letter_________ Mary Petty........... Aug. 25, 1949__________ Black pencil. Has P. S. In
Envelope- _ _ _ _ _ Reg. date Aug. 27_____
ink requesting return of
card.
Blue ink over black pencil----- 139, 221
No. 4
Letter_________ Nellie Lane___________ Aug. 26, 1949__________ Black pencil___________________
Envelope- _ _ _ _ _ Reg. date Aug. 27___ _ _ _ Red ink over pencil____________ 139, 222
No. 5
Letter_________ Overa Haire___________ Aug. 26, 1949__________ Black pencil___________________
Envelope...... Reg. date Aug. 26___ _ _ _ Blue ink ---------------------- 139,223
No. 6
Letter_________ Elnora Stringer________ Aug. 26, 1949__________ Black pencil -------------------
Envelope-___-_ Reg. date Aug. 27______ Blue ink---------------------- 139,224
No. 7
Letter_________ Elnora Stringer-------- Aug. 26, 1949__________ -----do-------------------------
Envelope _ _ _ _ _ _
No. 8
Letter_________ Priscilla Daniels...... AugR26, 1949__________ Black pencil___________________
Envelope- _ _ _ _ _ Reg..date Aug. 27______ -------------------------------- 139, 225
I Not registered.
All but one of the letters was sent by registered mail. Each of the registered
letters asks for the return of the senders signed union application card. The
one unregistered letter, hereinafter discussed, is quite different from the
others. Although six of the seven registered letters are written in pencil all
but one of the envelopes are written in ink, in two cases they are written in
ink over a previous pencil writing. All the registered letters show that carbon
copies of them were made.
One letter, by Mary Petty, was registered August 19, one from Beatrice Steel,
August 24, all the others, including a second letter from Petty were registered
August 27, and bear consecutive registry numbers.
Employee Beatrice Steel testified that ' together with her own letter she
registered and mailed to the Union, letters from Nellie Lane and Overa Haire
and that Mary Petty and Elnora Stringer were with her in the post office at
the time, but that she did not mail letters for the latter two employees.
Steel further testified that she had written and sent another registered letter
to the Union, however, Doyle, the Union's representative, testified that the
Union bad received but one letter from Steel.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nellie Lane testified that she wrote to the Union requesting the return of
her application card; made a carbon copy which she gave to Simpson ; bought
the carbon paper "in the dime store," gave the letter to Beatrice Steel to mail
and at the same time "just gave her some money" for the postage ; that she did
not recall the amount, but that it was before the letter was mailed.
Mary Petty testified that she wrote two letters and sent them by registered
mail to the Union ; that she wrote one letter "two days after the meeting"
(which would be August 17) and that she mailed it herself in the post office;
that the second letter she wrote was registered by her on her way from work ;
that Nellie Lane and Beatrice Steel were with her at the time; that Elnora
Stringer was not present at the time ; that she "didn't pay any attention to the
other girls to see what they were doing in the post office; and that she showed
.a carbon copy of both letters to Simpson.
Petty's letter, above referred to as the second letter, is written in pencil
and bears a P. S. in ink, the envelope is in ink traced over original pencil writ-
ing. Petty when shown the envelope denied that it was addressed in ink over
pencil writing, she also testified:
Q. . . . Why did you write the P. S. with a ball-point pen when the
rest of the letter was written in pencil?
A. Well, quite naturally, if the lead broke out of the pencil. I didn't have
time to sharpen it so I just used my pen.
Steel testified that when she mailed the letters for Lane and Haire she paid
the postage and "that the girls paid me Friday" ; that she did not give the
others the registry receipts and further testified "I guess they is some place
at the house if the children ain't thrown them away."
Assuming arguendo that Petty and Stringer mailed and registered their let-
ters to' the Union together with Steel, the sequence of registration numbers be-
comes very interesting, being:
Petty-------------- --------------------------------- 139,221
Lane------------------------------------------------------- 139,222
Haire------------------------------------------------------ 139,223
Stringer --------------------------------------------- 139,224
Daniels---------------------------------------------------- 139,225
Considering Steel's testimony that she mailed letters for Lane, Haire, and her-
self it appears from the numbers that if this were so she registered her own*
alleged letter before Petty's, and after Daniels, or not at all. Under all the
circumstances, including Doyle's testimony to the effect that the Union received
only one letter from Steel, the undersigned is convinced and finds that Steel
sent to the Union only one registered letter, and that this was sent on August
19, 1949, and numbered 138,397. The undersigned does not credit Steel's testi-
mony nor the attempted corroboration by Petty and Lane to the effect that Steel
registered letters for herself and also for Lane and Haire at the same time and
that Petty and Stringer were present, or that Petty registered and mailed a
letter to the Union at approximately the same time as Steel.
Simpson testified that "I didn't tell them to write the letters for the cards"
that she did not give any of the employees either stationery or carbon paper to
use in the preparation of the letters; however, Simpson also testified that at
the August 15 gathering she told the employees present "Well, if you don't want
to join the union, he don't have to mail you a card, for one thing. You have to
MISSOURI BAG COMPANY 395
have the election before you get any union," I said, "if you want to you can write
and ask him for it." She admitted that employees told her they had signed
cards and brought her the carbon copies or the actual letters they sent the
Union ; that she did not see all of the letters on the same day ; and that none of
the employees showed her more than one letter and that she did not mail the
letters.
Considering Simpson's admissions that she told employees they could request
the return of their application cards from the Union, and was told who had
signed cards and later was shown the letters or copies of the letters of revoca-
tion and further considering the fact that all the letters with two exceptions
bear consecutive registry numbers, and that all the envelopes in the series are
properly addressed in ink, although the letters are in pencil and some of them
are not properly addressed, and further that two envelopes are written in ink
traced over previous pencil writing, and being mindful of the admission of Pris-
cilla Daniels that Simpson gave her carbon paper to use in the preparation of
her letter to the Union, and that Daniels addressed her letter in the presence
of Simpson in the dressing room of the plant and further being mindful of the
discredited testimony of Beatrice Steel, Nellie Lane, and Mary Petty with
respect to the mailing and registration of the letters and upon the entire record
considered as a whole including his observation of the witness the undersigned
does not credit Simpson and finds that Simpson and through Simpson the Re-
spondent instructed some of its employees to write letters to the Union revoking
their affiliation ; furnished them material for making copies of the letters ;.
checked the letters and addresses thereon, making corrections where necessary ;
and finally caused the letters to be mailed and registered. The undersigned
finds that all the above enumerated conduct attributed to Ethel Simpson and
found herein to have been engaged in by her is violative of the Act and that
thereby the Respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed in Section 7 thereof.2 Additional
acts of interference, restraint, and coercion: Employees Mamie Rogers, Carrie
Patterson, Christine Washington, and Louise Foster, testified that at various
times Simpson contacted them individually at their work and inquired of each
2 Elnora Stringer, called by the General Counsel, proved to be a hostile witness. Her
testimony was taken after the General Counsel pled surprise, and was permitted to
examine the witness by cross-examination.
Stringer testified that she was not present at the August 15 gathering ; however, she
was contradicted by the testimony of four witnesses.
Stringer testified that she sent one letter written for her by her daughter, but signed
by her and Which she identified. The letter was sent by registered mail. Stringer
testified that she mailed the letter herself in a mail box, and was alone at the time.
She testified, "I dropped it in the mail box." She testified :
Q. If you mailed it special delivery would you have dropped it in the mail box?
A. Yes, I would have, sure. I do drop special deliveries in there.
Q. When you send a special delivery do you Write "special delivery" on it?
A. Some time I do, some time I don't. I just buy a special delivery stamp and
a three cent stamp and drop it in the mail box.
Stringer identified a second letter, also dated August 26 which had been written for her.
This letter was not sent by registered mail. -
The two letters are very dissimilar. The registered letter asks for the return of
Stringer 's application card, and speaks in glowing terms of the Respondent's president
and supervisors. The second unregistered letter complains of intimidation of employees
by the Respondent.
The undersigned makes no finding with respect to the letters above referred to other
than that he does not credit Stringer's testimony to the effect that she registered and
mailed the letter bearing the registry number 139,224.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if they had signed union cards . This testimony was not denied , in fact Simpson
admitted that she held various conversations with unidentified employees regard-
ing their union affiliation.
Vanilla Richards testified that later in the same week of the August 15 gath-
ering she was laid off for lack of work by Simpson who told her at the time
"we all better know better than sign a card, get mixed up in that union" and
also said "we'd be out three or four dollars, go out and find Jerry [the union
representative ], and see would he give us a few dollars to buy ourselves some-
thing."
Richards further testified that she was recalled to work during the same
week and at the time of her return Simpson told her inter alia that "Mr. Grod-
sky [the Respondent's president] sent her word not to let the girls on the fourth
floor sew no more new bags , he was going to bale them up and send them to
Decatur."
Carrie Patterson testified that about a month after the August meeting she was
laid off, apparently for a half day, and at the time she was laid off, Simpson said
to her "Let your boy friend get you some work because we haven't got any." Pat-
terson then asked "who is my boy friend?" and Simpson replied " the union man."
Patterson further testified that Simpson also said to her at the time, "you
turn around and bite the hand of the person that feeds you , that they wasn't
nothing but snakes."
The above testimony of Richards and Patterson was not denied and is credited
by the undersigned.
Vanilla Richards testified that about a week before the election which was
held on November 1, 1949, Simpson addressed a group of employees in front of
the time clock in which Simpson referred to the union adherents as "snakes,"
and that :
She said that if we wanted to win the election to get in and vote one hun-
dred percent no and she'll stick by us to the end but if the union win there
was a lot of us would be out on the streets and she say because there's always
a way to get us out of there because all of us do wrong things sometimes.
Richards was corroborated by Rogers , Washington , and Elisa Ann Fowler.
Simpson denied using the expression "snakes" but did not deny speaking to 'the
employees at the time and place . On the preponderance of the evidence the
undersigned credits Richards.
May Tight testified that during the month preceding the election Nathan Fer-
man, the Respondent 's plant manager asked her if she had seen anyone with
union cards, told her to be careful what she signed , and that during the same
period Ferman called at her home "on a Saturday afternoon , and he come to
talk to me about the union, asked me what was I going to do, sign up or not."
Iva Tight testified that some time before the election Ferman told her "if it
went union , you know, things could be changed."
Ferman testified that he "talked to almost every one" of the employees regard-
ing the union, and as to the testimony of May and Iva Tight , Ferman denied
only that he made the statement to any employee that if the union came in "things
would be different." Considering that Ferman did not deny the other statements
attributed to him, and on the entire record the undersigned is persuaded that
the version of May and Iva Tight with respect to their testimony regarding Fer-
man's statements to them represents ' the. more accurate version thereof and
therefore credits their testimony with respect to them.
MISSOURI BAG COMPANY 397
Kathryn Strong testified without contradiction the following conversation with
Plant Manager Ferman :
Well, he came to my machine and asked me if I had signed one of those
union cards and I told him no. And he asked me if I got one that I should be
careful what I sign my name to. He said it would be some changes made
around there.
The undersigned credits Strong.
Carl Skaggs testified without contradiction that on October 1, 1949, Plant
Superintendent Ferman asked him whether "his friend" whom Ferman further
described as "the union man," had been to see him and then advised Skaggs to
"think it over before you sign." The undersigned credits Skaggs.
Mamie Rogers testified that on August 16 Sam E. Grodsky, the Respondent's
president and Simpson came to the "patching line," where Grodsky talked to the
employees telling them inter aria that "if we would be loyal to him he'd be loyal
to us."'
Iva Tight testified that sometime in September 1949, Grodsky shut off the
power and addressed the employees and "asked us how many had seen that man
they called Jerry . . . He said he was a union man."
Revelle Jinkerson testified credibly that shortly before the election, Grodsky
in a conversation with her in the plant told her that "when he found out the
colored girls was organizing the union that he quit buying bags and had to lay
them off."
On cross-examination by the Respondent; Jinkerson testified as follows :
Mr. SHIFRIN.. . . He didn't say to you that you would lose your job if
you voted for the union?
A. No, he didn't tell me that but the way he said about the colored. girls,
he quit buying bags and laid them off, I took it for granted if we did get a
union in there he'd quit taking orders and we'd be laid off.
The testimony was not denied ; Grodsky admitted that on one occasion he
spoke to the employees from a prepared statement, and "spoke to the patchers
extemporaneously." The undersigned therefore credits Rogers, Tight, and
Jinkerson.
Upon the entire record and under all the circumstances the undersigned finds
that the conduct of Ethel Simpson, Sam E. Grodsky, and Nathan Ferman as
found hereinabove, in effect constitute threats of loss of employment in the
event the Union was organized or selected by the employees and that by the
above-found conduct Respondent has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act.
Concluding findings as to interference, restraint, and coercion
The Respondent argues in its brief that the conduct of its officials does not
constitute unfair labor practice for the reason that "any employer has a right
to express himself about the Union and try to show its employees that there
is no need of a Union organization for them to get any benefits from the em-
ployer." The Respondent then continues with a false promise based on non-
existent evidence. The Respondent argues as follows :
Section S (c) of the Labor & Management Act of 19471specifically provides
for the right of the employer to express views, arguments, or the dissemina-
tion thereof, and such expression does not constitute or is evidence of an
unfair labor practice.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the Respondent failed to complete the citation, which continues "if'
such expression contains no threat of reprisal or force or promise of benefit."
The Respondent also argues in its brief that in order to constitute an unfair-
labor practice the letters of revocation sent by its employees to the Union must
be proven to have been compelled by the Respondent, or followed with a threat
of discharge and the coercion must have been effective.
The record is clear and it has been found herein that promises of benefits•
in the event of the defeat of the Union and loss thereof if unionization was
effective were made.
With respect to one coercive threat of loss of benefit, namely the Respondent's.
threat to send work to Decatur, the Respondent admits in its brief that there
"was some evidence" to prove the statement, however, the Respondent argues
that the plant has no connections with the Respondent and "is so small that
there could not, under any circumstances, be any considerable amount of"
work done by it." The argument is specious and contains no merit. The.
employees were not under compulsion to acquaint themselves with the bag-
making facilities in Decatur, neither was it necessary that they actually believe
the threat to be real, or capitulate to their Employer inasmuch as under such.
circumstances the criterion is the calculated effect of the act of intimidation,.
threat, or coercion, and not its actual result.
As to the Respondent's contention that the letters of revocation must be.
proven to have been compelled by the Respondent; assuming arguendo that.
this premise is in any way valid, "compelled" does not mean exacted at pistol
point, it is sufficient that the letters were the result of the Respondent's;
suggestion, implied threats, and/or actual participation in preparation.
On the basis of his findings in Section III, above, upon the entire record.
in the case including his observation of the witnesses, the undersigned finds that
the Respondent has interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed in Section 7 of the Act, more particularly
Section 8 (a) (1) thereof.
B. The alleged discriminations in hire and tenure of employment
The complaint alleges that the Respondent discharged and failed to reinstate
Leland Allen, Louise Foster, and Thomas Butler and refused employment to
Robert Moore because of their activities on behalf of the Union.
Leland Allen
Allen was first employed by the Respondent in 1945, later quit and was
rehired "about two years" before the hearing. Allen's employment was termi-
nated September 29, 1949.
Allen was active in the effort to organize the Respondent's employees ; the
nature of his activity being known to the Respondent.
Allen had been working an 8 a. in. to 4: 30 p. in. shift but he was changed
to a night shift, beginning at 4: 30 p. in., effective September 28. The under-
signed is persuaded and finds that the change in Allen's hours was made for
legitimate business reasons and was not because of an antiunion motive.
Allen testified that he worked the night shift of September 28, but that the
next day be reported at his regular day shift hour and went to work. After
he began work he was observed by Plant Superintendent Ferman who asked
if Allen was not supposed to be working at night, whereupon according to
Allen's testimony he replied that he could not work at night because the poor
MISSOURI. BAG COMPANY 399
light gave him a headache and Ferman then said to him "if you can't stack at
might I have no work for you." Allen asked Ferman if he could "see Mr. Sam."
[Grodsky]. Receiving permission, Allen went to Grodsky's office and informed
•Grodsky of the bad lights. Grodsky told Allen to speak to Ferman. Allen
testified further that after he left Grodsky's office he met Simpson whom he
.asked to convey Grodsky's statements regarding the light to Ferman and that
Simpson told him to change his clothes and go home. Later as he was preparing
to leave the plant he met Simpson and Ferman on the fifth floor who then took
him to Grodsky's office where according to Allen, Grodsky said to him, "I've been
]bearing things about you anyway" and then said, "Anyway I don't want you in
my factory any longer." Allen then demanded his pay ; an argument took place
and Grodsky called the police ; however, Simpson took Allen out of the room
.and kept him from the officers.
With respect to the events immediately pertaining to Allen's discharge, Ferman
and Simpson did not in the main contradict Allen except in one essential partic-
ular. Ferman testified. that at the time he and Simpson encountered Allen on the
fifth floor he first learned that Allen was working contrary to orders and that
Allen then told him "I'm not going to work at night any more." According to
Ferman he explained to Allen that there was no day work available and it was
then that Allen first told him of the bad lights and of Allen's conversation, with
Grodsky.
Simpson testified that during the conversation between Ferman, herself, and
Allen, the latter said to Ferman "I'll quit before I stack at night."
Grodsky testified that Allen came to him and "stated that the light was poor
and his flashlight wasn't good," and that he told Allen to ask Ferman for good
equipment ; that shortly thereafter he was told that Allen had quit prior to his
conversation with Grodsky ; that he then called Ferman, Simpson, and Allen to
his office. Thereafter Grodsky's account of the affair does not materially differ
from Allen's.
George Cook, who was the Respondent's shipping clerk at the time testified
as follows :
About S : 10 in the morning, I started upstairs on the elevator, Leland
Allen, the elevator operator, and myself was on the elevator. I says, "Leland,
how come you are here?" He said, "To work." I said, "I understood you
were working nights stacking on the fifth floor." He said, "I'm not going
to stack on the fifth floor at nights." He said, "Before I'll work nights up
there on the fifth floor," he said, "I'll quit."
Allen denied the incident.
Cook impressed the undersigned as an honest witness. The undersigned
credits his testimony and relying thereon is convinced and finds that prior to
going to work Allen had determined not to work on the night shift but to quit in
the event he could not work days. This, together with the clear and undisputed
fact that Allen came in to work without authority and proceeded to work con-
trary to orders makes plausible the testimony that Allen told Ferman that he
would quit rather than work the night shift.
Although not free from doubt, under all the circumstances the undersigned
finds that Ferman was justified in accepting Allen's statement as an actual
quitting of employment and that the Respondent was privileged to consider that
Allen had quit and that therefore the Respondent did not discharge Allen.
Therefore, although the matter is not free from doubt, the undersigned finds that
the Respondent did not unlawfully discharge Leland Allen and will recommend
that the complaint be dismissed insofar as it so alleges.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Louise Foster
Louise Foster testified that she had been employed by the Respondent as a
patcher ; that on the day following the meeting with Simpson on the plant's
fourth floor Simpson asked her if she had signed a card for the Union and that
Foster replied that she had . Simpson according to Foster than said " She was
mighty afraid that I had signed myself out of a job ." Later Simpson asked
Foster to write the Union requesting the return of her application card. Foster
did not send such a letter to the Union. After this incident Foster was off
work because of illness. She testified :
I taken sick and I came back after that two weeks and she [Simpson] told
me that morning when I came in to wait, she wanted to talk with . me, and
so I waited and all the rest of them , they went to work . , So she told me,
asked me had I signed a paper for the union man. Well, I told her yes, I
did. And so she told me that she was sorry, she didn't have any work for
me to do because I had signed myself out of a job, and she told me to go
home and don't have anything else to do with the union . So I went on home.
Foster further testified that within 2 weeks thereafter . Simpson "sent me word
by Ann Fowler to come in to work."
Foster testified that she returned to work and worked until "about November
sometime" but that she was "taken sick again " and quit her employment with
the Respondent on her doctor ' s advice because ";The dust was against me."
The General Counsel contends in his brief :
It is submitted that the uncontroverted evidence dictates that the Respond-
ent should be required to make whole Louise Foster for the period of her
unemployment.
The undersigned cannot agree with the General Counsel for the reason that
under all the circumstances in the case and on all the evidence he is not persuaded
there is clear proof that the Respondent discharged Foster or in any other manner
discriminated in her tenure of employment . It will therefore be recommended
that the complaint be dismissed insofar as it alleges that the Respondent illegally
discharged Louise Foster.
Thomas Butler
Thomas Butler employed by the Respondent for approximately 5 years appar-
ently was the employee most active in behalf of the Union . He solicited member-
ships both in the plant and by personal visits to employees ' homes. Simpson
admitted that she had knowledge of Butler 's union activities . Butler testified
that on November 15, after starting work he was passed by Grodsky :
And he [Grodsky ] said, "Tom ," said, "when you come into the plant,"
said, "you go up them front steps and punch your card and come right back
down." And I said, "Mr. Grodsky , how come I can 't come in like the rest of
the boys ?" I said, "Ethel told George to keep me off of that second floor."
I said, "What has I done ?" He said, "You have gone up the back steps
talking to the girls about the union ." I said, "No." He tell me "Turn
around, shut up talking to me, run you out of here , run you out of here. Get
you out of here right now. Get you out of here ." I considered I was fired.
Butler further testified that be remained "where he was" for 15 minutes and
then George Cook, the shipping clerk, told him that "Mr . Grodsky said come in
the office." Butler testified :
MISSOURI BAG COMPANY 401
So I told George that I wasn 't going to , tell him to come out there if he
[ Grodsky] wanted to talk to me.
Butler further testified :
A. I still stood there and that was why George come back and told me to
go in there and talk to him. I said, "I told you to tell him to come out here."
George said, "That's your job." And I said, "That's my job." After a while
he come out of his office again and he went into Mr. Grodsky 's office and
brought two more white fellows with him and they walked on by me. They
got by me and they stopped. They said, "Tom, come here," And I went to
them. He said, "Didn't I tell you what Mr. Grodsky said?" I said, "Yes."
He said, "What did you say?" I said, "I told you to tell him to come out
here if he wanted to talk to me ." He said, "Go punch your card." I said,
"I ain't going to punch it. You punch it." So he left to go punch my card
and I got my check.
Grodsky, testified that he met Butler on the ramp in the plant and told him to
"keep off the second floor" whereupon "Tom shook his finger in my face and
roared so you could hear him almost all over the place, `We'll see about that.' I
said, `Don't you shake your finger in my face and don't you yell at me."'
Grodsky testified that he then called his attorney to find out if he was within
his rights to discharge Butler as he did not understand his rights with respect
to Butler "because of his activity" among the employees.
The attorney told Grodsky to call Butler to the office for reprimand . Grodsky
sent for Butler who refused to come saying that if Grodsky wanted to see him
Grodsky could come to him . The attorney was again called and instructed
Grodsky that Butler be asked before witnesses to come in . This was done and
again Butler refused to come to the office saying that Grodsky could come to him.
Cook corroborated Butler 's refusals to go to the office as well as Butler's
admission that he had said that if Grodsky wished to see him, Grodsky could
come to Butler.
There is no substantial variation in the testimony of the three men. The under=
signed accepts Grodsky 's version of the initial conversation which lead up to
Butler's admitted insubordinate conduct as being the more accurate version
and therefore under all the circumstances and on the record considered as a
whole finds that the Respondent discharged Thomas Butler on November 15, 1949,
for cause and not as alleged in the complaint because of his activities on behalf
of the Union . The undersigned will recommend that the complaint be dismissed
insofar as it alleges that the Respondent on November 15, 1949, illegally dis-
charged Thomas Butler.
Robert Moore
Robert Moore is Thomas Butler's stepson . It is admitted by the General
Counsel that Moore was discharged by the Respondent sometime in July 1949
for fighting in the plant . There is no contention that Moore 's discharge was in
any way discriminatory.
Moore testified that shortly after October 25, he telephoned Simpson and asked
for employment and that "She told me if the Union didn't win I could come
back to work ." Moore further testified that the day following the election, which
was on November 1, he called Simpson again and was told by Simpson that she
knew of his activities on behalf of the Union and "after that they didn't have
nothing for me to do."
V
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Simpson testified that Moore called her at various times requesting work but
although she "knew he couldn't come back because he had a tight" she put him
off until such time "when things get better" because she "didn't want to hurt
his feelings." Simpson denied telling Moore he would be rehired if the Union
lost the election.
Grodsky testified that under no circumstances would the Respondent rehire
Moore.
It is admitted that Moore's discharge was for cause, it is clear that he engaged
in activities for the Union after his discharge and there is no contention that any
of his union activities other than that which occurred after his discharge were
the reason for any alleged discrimination against him.
Under all the circumstances in the case the undersigned is persuaded that the
Respondent having once discharged Moore for cause did not refuse to reemploy him
because of the union activity in which he afterwards engaged but merely contin-
ued to deny him employment because of his former offense.
The undersigned will recommend that the complaint be dismissed insofar as it
alleges that the Respondent refused Robert Moore employment because of his
activities in behalf of the Union.
Conclusion
It has been found herein that the Respondent actively engaged in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act in order to thwart
its employees' efforts toward self-organization but in the opinion of the under-
signed while the record considered as a whole casts a cloud of doubt yet it does
not present such substantial and conclusive proof as to warrant a finding that
the Respondent also violated Section 8 (a) (3) of the Act.
The complaint alleges that the Respondent . . . "on or about November
:25, 1949, questioned an applicant for employment with respect to his member-
ship or activities on behalf of the Union."
To sustain this allegation, George Chester testified without contradiction that
,on November 25, 1949, fixed by its being the day following Thanksgiving Day,
he applied for work at the Respondent's plant. According to Chester he was
interviewed by Simpson who said to him "you ain't no union man, are you?"
Chester replied that he was not, and was told "Well, come back or just keep
coming back."
Chester further testified that he returned on November 28. but did not find
Simpson in and left -without seeing anyone regarding employment.
Under all the circumstances and in view of the fact that the General Counsel
contends only that the alleged statement by Simpson to Chester is a violation of
8 (a) (1) of the Act and not a refusal to hire because of union affiliation and fur-
ther because the complaint specifically alleges that Chester was questioned
"with respect to his membership on behalf of the anion" the undersigned finds
that the evidence does not sustain the complaint and will recommend that the
complaint be dismissed insofar as it alleges that the Respondent questioned an
.applicant for employment with respect to his membership in or activities on
behalf of the Union.
IV. THE FFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
.connection with its operations described in Section I, above, have a close, inti-
MISSOURI •BAG COMPANY 403
mate, and substantial relation to trade, traffic, and commerce among the several
States, and such of them as have been found to constitute unfair labor practices
tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in, and is engaging in, certain
unfair labor practices, it will be recommended that it cease and desist there-
from and take certain affirmative action to effectuate the policies of the Act.
Having found that the Respondent inquired into the union membership and
activity of certain of its employees; caused certain of its employees to write
letters to the-Union which in effect revoked their membership therein, and
caused such letters to be mailed after first examining their contents ; threatened
its employees with loss of benefits in the event they perfected self-organization,
and promised them benefits if they rejected the Union, all in violation of Section
8 (a) (1) of the Act, therefore :
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAw
1. The operations of the Respondent constitute and affect commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. Textile `Yorkers of America, C. I. 0., is a labor organization within the-
mean-ing of Section 2 (5) of the Act.
3. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed to them by Section 7 of the Act, the Respondent
has engaged in, and is engaging in, unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
4. The aforesaid unfair. labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The allegations of the complaint that the Respondent has violated, and
continues in violation of, Section 8 (a) (3) of the Act and the allegation that
the Respondent questioned an applicant for employment with respect to his
membership in and activities on behalf of the Union in violation of Section 8 (a)
{1) of the Act have not been established.
(Recommended Order omitted from publication in this volume.]'
917572-51-vol. 91-27