New York Handkerchief Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 26, 1939

16 N.L.R.B. 532 (N.L.R.B. 1939)

In the Matter of NEW YORK HANDKERCHIEF MANUFACTURING Co. and
INTERNATIONAL LADIES GARMENT WORKERS UNION LOCAL No. 76
Case No..C-941.Decided October 26, 1939
Handkerchief Manufacturing Industry-Interference, Restraint, and Coercion:
anti-union statements ; inquiries as to the union preferences of employees ; cam-
paign designed to keep employees from voting in an election directed by the
Board under belief that if less than a majority of the employees voted in the
election, Board would be powerless to certify the Union-Collective Bargaining:
refusal to bargain following certification of the Union by the Board admitted
by the respondent ; contention that refusal was justified inasmuch as less than
a majority of the employees had participated in the election upon which certifica-
tion was based, held to be without merit particularly since insubstantial par-
ticipation in election was attributable to respondent's unfair labor practices ;
respondent ordered, upon request, to bargain with Union Discrimination: as to
tenure and terms of employment ; discharge for union membership and activity
and for activity on behalf of committee held to be a labor organization ; charges
of, sustained as to 11 employees, dismissed as to 14-Reinstatement Ordered:
employees discharged and laid off for union membership and activity and
activity on behalf of committee held to be a labor organization-Back Pay:
computation of : Act does not require Board to consider the efforts of an
employee to secure other employment in ; awarded employees discharged or
discriminated against because of union membership and activity or activity on
behalf of committee held to be a labor organization ; granted to employee who
obtained position with Works Progress Administration following lay-off at
higher monthly salary, only up to time he received this position since he had
testified that he did not want his job back with the respondent at the same
salary; granted to employee who testified she did not desire to return to
respondent's employ from date of lay-off to date of hearing; monies received
by employees for work performed upon Federal, State, county, municipal, or
other work-relief projects to be deducted and paid over to agency which supplied
funds for said projects-Complaint : dismissed as to 14 employees found not to
have been discriminated against.
Mr. Stephen M. Reynolds, for the Board.
Mr. Charles L. Cohns, of. Chicago, Ill., for the respondent.
Mr. Harold W. Schwartz, of Chicago, Ill., for the Union.
Mr. Theodore W. Kheel, of counsel to the Board.
16 N. L. R. B., No. 55.
532
NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 533
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Ladies Garment Workers Union on behalf of Local No. 76,1 herein
called the Union, the National Labor Relations Board, herein called
the Board, by the Acting Regional Director for the Thirteenth Region
(Chicago, Illinois), issued its complaint, dated June 24, 1938, against
New York Handkerchief Manufacturing Company,2 Chicago, Illinois,
herein called the respondent, alleging that the respondent had en-
gaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1), (3), and (5) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint and a notice of
hearing were duly served upon the respondent and the Union.
The complaint, as amended, alleged, in substance that although the
Union had been certified by the Board as the representative of a
majority of the employees in an appropriate unit for the purposes of
collective bargaining, the respondent had refused to bargain collec-
tively with the Union ; that the respondent had discharged and re-
fused to reinstate 12. named employees because they had joined and
assisted the Union; that the respondent had caused 13 named em-
ployees to work a fewer number of days than other employees doing
similar work because they had joined and assisted the Union; and
that the respondent, by the above acts and by other acts, interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act. The respondent, by its
answer and amendment to the answer, filed on June 29 and July 6,
1938, respectively, admitted certain allegations as to its business, but
denied that it had engaged in or was engaging in the alleged unfair
labor practices.
Pursuant to notice, a hearing was held in Chicago, Illinois, from
June 30 through July 8, 1938, before Herbert Wenzel, the Trial
Examiner duly designated by the Board. The Board, the respondent,
and the Union were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded
all parties. On the day preceding the hearing, counsel for the re-
'At the commencement of the hearing , the title was amended to include the words
Local No. 76.
2 Incorrectly designated in the pleadings as New York Handkerchief Manufacturing Co.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent filed a motion for a continuance with the Regional Director
and renewed this motion at the commencement of the hearing. The
Trial Examiner denied these motions. On the second day of the
hearing, counsel for the Board moved to add the names of Madge
Bramblett and Anna Walker to the complaint as employees allegedly
discriminated against. In granting this motion, the Trial Examiner
ruled that the respondent should receive the requisite 5 days in which
to prepare its defense as to these two employees.3 During the hear-
ing, the Trial Examiner made various rulings on other motions and
objections to the admission of evidence. The Board has reviewed all
the rulings and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
On September 15, 1938, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon all the parties, in
which he found that the respondent had engaged in unfair labor
practices within the meaning of Section 8 (1), (3), and (5) and
Section 2 (6) and (7) of the Act, and recommended that the re-
spondent cease and desist from its unfair labor practices, offer to
reinstate 13 named employees alleged in the complaint to have been
discriminated against, refrain from further discriminating against
5 named employees in regard to the number of hours and days of
employment, as alleged in the complaint, and make whole all said
employees for any losses of pay suffered by reason of the discrimina-
tion. On September 29, 1938, the respondent filed exceptions to the
rulings and findings of the Trial Examiner. Pursuant to notice,
a hearing was held before the Board on June 15, 1939, in Washington,
D. C., for the purpose of oral argument. Only the respondent ap-
peared and was represented by counsel. The respondent requested
and was given until June 23, 1939, to file a brief. This privilege
was also granted to the Union and both parties availed themselves
of this privilege. The Board has considered the briefs filed by the
parties and the exceptions of the respondent. Except as they are
consistent with the findings of fact and conclusions of law made
below, we find the exceptions to the Intermediate Report to be
without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS .OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is an Illinois corporation engaged in the manu-
facture and sale of handkerchiefs. Its offices and only plant are
Counsel for Board withheld the introduction of any testimony in behalf of these
employees until the requisite 5 days had elapsed.
NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 535
located in Chicago, Illinois. Plain white handkerchiefs, which retail
at from two for 5 cents to three for 10 cents, are its principal prod-
ucts. It also makes bandannas, color-woven border, satin stripe,
print, and some linen handkerchiefs. The respondent's annual
volume of sales is approximately $1,000,000.00. Seventy-five per cent
of this amount is received from the sale of merchandise shipped to
places outside the State of Illinois. All of its raw materials, con-
sisting of cotton piece goods and thread, are shipped to the respond-
ent's plant from places outside the State of Illinois. Approximately
$800,000.00 annually is expended for raw materials. The respondent
engages between 250 and 350 employees depending upon the seasonal
fluctuations of its business.
II. THE ORGANIZATION INVOLVED
International Ladies Garment Workers Union,, Local No. 76, is,
a labor organization admitting to its membership all production and
maintenance employees of the respondent, excluding office workers
and supervisory employees.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The respondent's employees consist mainly of colored women. The
Union began to organize them in September 1937. On November 16,
1937, the Union wrote to the respondent to arrange for negotiations.
The respondent declined and on November 24, 1937, the Union filed
with the Board a petition for an investigation and certification of
representatives.
One morning, about 10 days after the petition had been filed, Jack
Meiselman, the respondent's secretary, called a meeting of the em-
ployees and addressed them for the ensuing 30 minutes. Approxi-
mately 300 employees were present. This was the first general
meeting of employees in many years and they were paid for the
time it consumed. Meiselman testified that he called this meeting
to find out "if the girls wanted a company union, an outside union,
or if they wanted to be left alone." He had received a letter "from
the National Labor Board . . requesting an interview" and he
wanted this information "so as to know how to operate."
Concerning the extent of his efforts to accomplish the alleged
purpose for which he called the meeting, Meiselman gave the follow-
ing testimony on direct examination :
Q. All right. Will you tell us as near as you can recall what
you said that morning?
A. (MEISELMAN.) I said, Girls, you are all over twenty-one
I believe and you ought to know what you want to do. It is not
247333-40-vol. 16-35
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
my purpose at all to tell you what you should do, but I have
brought you up here to explain a few things, also to find out
whether you girls wanted your own bunch together or whether
you wanted an outside bunch, or whether you wanted to be left
alone.
Q. Did anybody answer that question?
A. Not at that time.
Q. At any time during the talk did anybody answer that
question?
A. I remember that, yes. I said, now, what do you girls want?
Nothing was said, therefore, I took it to mean that they were
satisfied.
According to his testimony he did not ask any other questions
designed to secure from the girls an admission of preference for or
against union organization. In this, respect, his testimony stands in
marked contrast to the testimony of Ruth Harris and other employees
who heard the speech. She attributed the following to him : "All
the girls that are for me raise your hand." Only some of the girls
raised their hands. "All those that are not for me raise your hands."
No hands were raised. "See, they are rats, I know there are girls
here that belong to the Union, several of them of course, I could
spit on them."
From an inquiry into the union preferences of the respondent's
employees, the speech veered into a discussion of wages and hours.
Meiselman began this portion of his speech by tracing the history
of the respondent and his connections with it. He explained that
he worked long hours and had started from a lowly position. He
indicated certain girls who were earning "good salaries." "I cited
instances in practically every department where the girl who worked
made anywheres from $12.00 to $20.00 a week, and then I said the
girls who don't make that it is their own fault." He concluded by
saying, "Now, let's all get back to work together, let's watch our
work and we will have a better 1938. I will do my share and you
do your share."
In addition, witnesses for the Board testified that Meiselman
made many other anti-union remarks during the course of his speech.
They testified that he denounced the Union, suggesting that it was
only interested in dues, and that the organizers for the Union would
not walk down the street with colored girls. He inquired, "Are
you going to let outsiders come in and break up our happy home?"
He advised employees to come to him if they wanted any informa-
tion about the Union. He added, "This is my business and there
is no one going to run it for me" but if the girls would "stick" with
him, he would make 1938 a better year.
NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 537
From all the testimony we are satisfied that in addition to the
remarks Meiselman admitted, he also made the statements attributed
to him above. Our finding is supported by further acts of hostility
which Meiselman later displayed toward the Union together with
further testimony which unmistakably reveals Meiselman's unre-
liability as a witness.
Meiselman maintained that he had not made any independent
attempts, aside from his speech, to discover the union preference
of the employees. But he admitted that "sometimes" he asked em-
ployees if they were members of the Union. He recalled, distinctly,
that he had questioned Fanny Echols about her membership in the
Union. When Echols admitted membership, he merely said to her,
according to his testimony, "You know what you are doing." Echols
gave a different version. She testified that she was asked by her
forelady if she was a member of the Union. She replied that it was
none of the forelady's business. Shortly thereafter, Meiselman came
to her and said, "Fanny, they tell me they have your name down
there as a member of the Union. Do you think I would pay you
union wages? If I have to pay union wages, I will hire all white
girls. That is why I kept you, you damn fool." Later, Meiselman
told her, "You wait until you start to pay dues and you will see,
what will happen."
Other witnesses testified to similar conversations with Meiselman
occurring at times from the inception of the Union to the date of
hearing. These conversations included vigorous anti-union state-
ments as well as inquiries into the union affiliation of the employees.
We find that Meiselman made these anti-union statements and ques-
tioned employees about their membership in the Union. In arriving
at this conclusion, we have taken into account his admission that
he questioned Echols specifically and other employees "sometimes"
about their union membership, his aversion for the Union, and his
unreliable testimony in other respects.
We have mentioned above that the Union filed a petition for an
investigation and certification of representatives. After a hearing
on this petition, in which the Union and the respondent participated,
the Board issued a Direction of Election.4 This election was held
on March 24, 1938. Two days before the election, the respondent
filed with the United States Circuit Court of Appeals for the Seventh
Circuit a petition seeking to review the Board's Direction of Elec-
tion and requesting, pending a determination of the petition for
review, a restraining order enjoining the Board from proceeding
4 Matter of New York Handkerchief Company and International Ladies Garment Workers
Union , Local No. 76, 5 N. L. R. B. 703.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the election . The Circuit Court denied the request for injunc-
tive relief, pendente lite, on March 23, 1938.5
Although approximately 225 employees were eligible to vote in
the election , only 59 participated . The complaint charged that dur-
ing,, the election , the "respondent did exercise surveillance over the
polling place of said election , did threaten its employees with the
loss of their jobs in the event that they exercised their right to vote
in said election , did urge and warn its employees not to vote in said
election , and by other acts did discourage employees from voting
in said election and did interfere with the conduct of said election
by the agents of the Board."
As the employees emerged from work on March 23 , 1938, the
evening preceding 'the election , Mary Redmond, an organizer for
the Union , gave them sample ballots and advised them to vote for
the Union . Bessie Rollins, an employee, testified that the next morn-
ing, Meiselman asked her to tell him what Redmond had said to
her. Rollins explained that she had been given a sample ballot and
told to vote for the Union . Meiselman then said , "Don't vote. You
don't have to vote . If I can keep 100 girls from going down there
and voting , there won 't be anything to it and they will leave us
alone and won't bother us any more ." Meiselman did not specifi-
cally deny this testimony . For reasons which appear below, we
find that Meiselman made this statement.
A petition was circulated among the respondent's employees on
the morning of the election . This petition stated, ' in substance, that
"the girls were satisfied with wages and conditions and begged that
the officers and officials would do something to protect them from
'outside interference ." Ernestine Walker , an employee , claimed
coauthorship of the petition with another employee.
The petition was circulated with the express approval of several
foreladies 7 and the acquiescence of others . Meiselman was present
during the entire time that the petition was in evidence around the
plant. At one point, he stopped the girls who were carrying the
petition , read it, and then permitted them to continue . For the
most'part , the petition was circulated by a committee of four girls.
Only one , of these girls secured permission to take the petition
around . The others accompanied her in violation of a company
'rule which 'prohibited employees from leaving their places without
permission . Although this committee spent about an hour in cir-
. 6 The petition for review was dismissed as "premature" on May 27 , 1938, pursuant to
stipulation between the parties.
6 This account of the contents of the petition is taken from Meiselman 's testimony. It
compares , substantially , with the testimony of witnesses who signed the petition. The
petition was delivered to Meiselman but the respondent did not introduce it into evidence.
7 Sometimes referred to as eoorladies.
NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 539
culating the petition, no steps were taken to stop the girls who had
not obtained permission or to reprimand them for violating the
company rule. Two foreladies testified that they had taken no
action against these girls because Meiselman was present while the
petition was circulated.
Six girls, employed as pressers, testified that the petition had
been presented to them for signature by Bessie Marshall, the forelady
in charge of the pressers. Although this was denied by Marshall,
we credit the testimony of these witnesses. We are impressed by the
corroborative character of their testimony as well as the fact that the
respondent acquiesced in the circulation of the petition.
Several employees who were hesitant about signing the petition
gathered in the washroom for discussion. While they were consider-
ing the proper course to pursue, Thelma Lewis, an employee who,
we find below, acted for the respondent in discouraging employees
from voting in the election, entered the washroom. The girls im-
mediately accused her of originating the petition. She denied this
but averred that Meiselman instigated the petition and had said,
"Whoever didn't sign that list wasn't going to work for him no
more." Although Lewis took the stand, she did not deny this testi-
mony. Nor did Meiselman specifically deny that he had so instructed.
Lewis. From the facts and circumstances set forth in the record, we
find that she spoke to the girls as related above in accordance with
Meisel man's instructions.
The evidence does not show that the respondent initiated the peti-
tion. It is clear, however, that Meiselman knew of and acquiesced
in its circulation, that several foreladies approved of its circulation,
and that Bessie Marshall, a forelady, circulated the petition among
the pressers in her charge.
Certain employees who had signed the petition were advised by
Bessie Marshall and Thelma Lewis that it was not necessary for
them to participate in the election since the petition was equivalent
to a vote against the Union.
The election was held in a vacant store several blocks from the
respondent's plant. The employees voted between 4: 30 and 6:00
o'clock after the respondent's plant had closed for the day. During
most of this time, Thelma Lewis and four other employees were sta-
tioned in front of the polling place. Lewis ascribed her prolonged
presence to her curiosity concerning the activities of the Union which
she had been asked to join. She denied having spoken to any
employees aside from those girls who were with her. Other em-
ployees testified that Lewis and her friends had advised them, as they
came up to vote, not to take part in the election if they intended to
vote "No," that is, against the Union.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meiselman left the plant at about 4: 45 o'clock. Shortly there-
after, he appeared at the polling place. He had set out in his
automobile, he alleged, to visit a customer. "When I got to Halsted
Street I was stopped behind a street car and as I turned to my left,
I saw a couple of my girls standing outside of what I now know
is the polling place." A representative of the Board immediately
advised him that he had no right to be within the neutral zone.
Meiselman engaged this representative in a conversation. Presently,
he observed Thelma Lewis. According to Meiselman, he said to her,
"Thelma, what are you doing here, come on." "I hustled her into
the car and told her she had no right to be there and pulled her away,
and I got her up to the corner and I told her to move along."
Meiselman was asked to explain why he had not taken along any of
Lewis' companions. He replied, "I didn't handle that-I don't know
what they did. I don't know what happened to them."
Lewis did not "move' along" but returned immediately to the
polling place. Despite the warning given him by the representative
of the Board, Meiselman also returned a second time, allegedly "to
find out whether we would be allowed to see the counting of the
ballots." Although he again observed Lewis standing in front of
the polling place, he took no steps to make her leave. He was asked
about this inconsistency in his conduct by the Board's attorney and
testified as follows :
Q. (By Mr. REYNOLDS.) She had disregarded your instruc-
tions and come back?
A. After 4:30 I can hardly tell a girl what to do.
Q. Well, how did you happen to tell her the first time.
A. I didn't like the thought of her standing there, I wanted
her out of there.
Q. Why didn't you like the thought of her standing there?
A. We didn't want to have-We didn't-I didn't want any of
my employees-I didn't want that girl hanging around the front
there.
'We cannot attach any credence to Meiselman's testimony since it
is replete with inconsistencies. He testified, with apparent difficulty,
that he did not like the thought of Lewis standing in front of the
polling place because lie did not want her "hanging around the
front there." He allegedly told her that she had "no right" to be
at the polls and to "move along." If Lewis occupied a position no
different than other employees and Meiselman did, in fact, tell her
that she had "no right" to be at the polling place, then he committed
a gross violation of the Act. It is apparent, of course, that Lewis
was not an ordinary employee and that Meiselman did not tell her
NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 541
to "move along." For Lewis immediately returned to the polls and
continued to pursue the same activities in which she was engaged
before Meiselman had taken her away. Moreover, when Meiselman
returned a second time, he made no further attempt to have her
leave or to reprimand her for disobeying his orders. To explain this
paradox, Meiselman said that he could not be expected to tell an
employee what to do after 4: 30 o'clock. But his previous testimony,
taken at its face value, indicates that he had instructed Lewis to leave
the polling place after 4: 30 o'clock.
From all the facts in the case, we find that Meiselman instructed
Lewis and through her the other girls to station themselves in front
of the polling place and dissuade the employees from participating
in the election and that these girls acted in accordance with his
instructions. We do not credit Lewis' denial that she had attempted
to persuade the employees to refrain from voting.
Not only was Meiselman present in the vicinity of the polling
place, but his two brothers Meyer Meiselman and Maurice Meiselman,
both officers of the respondent, his nephew Seymour Weiss, employed
by the respondent, and Michael Cosentina, a foreman, were also
present. These persons, Thelma Lewis, and the girls with her, at one
time congregated across the street from the polling place. They
remained there for about 10 or 15 minutes before they were told by a
policeman to move on.
A number of the employees testified that at the time of the lay-
offs which followed the election," they were berated for having voted.
Frances Ellington and Limmie Edwards testified that Bessie Mar-
shall, their forelady, informed them when they were laid off that
the respondent did not have any work for "voters." Martha Evans
testified that Marshall said, "But I told you girls to stay away from
the voting poll." Madge Bramblett was approached by Meiselman
about 3 days after the election and told, "Madge, after all I have
talked to you to change your mind about voting for the Union, you
went ahead right on and voted the Union." He added that he knew
she had voted in the election since he had instructed three girls to
vote for him. We credit the testimony of these witnesses.
B. Conclusions with respect to interference, restraint, and coercion
We have described the respondent's relations with the Union from
its inception in September 1937. They reveal a persistent campaign,
waged mainly by Meiselman, to frustrate the growth and develop-
ment of the Union. This campaign was initiated by Meiselman's
speech to the employees in December 1937, shortly after the Union
had sought recognition and had filed a petition with the Board for
8 See Section C, infra.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an investigation and certification of representatives . As we have
found above , Meiselman used the speech to question the employees
regarding their preference and membership in the Union, to berate
those employees who failed to admit their membership in the Union,
to denounce the Union as an organization interested only in collect-
ing dues from the employees , to disparage the organizers of the
Union as persons who would not associate with colored girls, to
threaten the employees who continued their membership in the
Union, to plead with them not "to let outsiders come in and break
up our happy home?" and to hold out the promise of a better year
if the employees remained loyal . In addition , Meiselman presented
arguments to prove to the employees that it was unnecessary for
them to belong to the Union. He pointed out girls who were earning
"good salaries" and he cited himself as an example of a person who
had, through diligent effort and long hours , risen from a lowly posi-
tion in the plant.
During the ensuing months , Meiselman pursued the same tactics
in conversations with individual employees. He continued to ques-
tion them about their affiliation with the Union and to reprimand
them if they admitted or failed to admit that they were members
of the Union. He included in these conversations vigorous anti-
union statements as well as inquiries into the union membership of
the employees.
Nor did the respondent's activities cease after the Board had
directed an election to determine whether the Union represented a
majority of the respondent 's employees in an appropriate unit. The
respondent now opposed the election . Its opposition first took the
form of an attempt to restrain the Board from proceeding with
the election . When this effort failed , it engaged in a plan designed
to prevent employee participation in the election . The record indi-
cates that this plan was based upon the belief that the Board could
not certify the Union if less than a majority of the employees took
part in the election . Meiselman gave verbal expression to this belief
in his conversation with Bessie Rollins wherein he said, inter alia,
"If I can keep 100 girls from going down there and voting, there
won't be anything to it and they will leave us alone and won't
bother us any more ." It found tacit expression in all the activities
in which the respondent indulged . The respondent did not try to
induce the employees to vote against the Union . It warned and
threatened employees against voting at all . Employees were advised
that if they had signed the petition , it was not necessary for them
to vote. Lewis and several other girls , acting for the respondent,
stood in front of the polls and told the girls not to vote if they
favored the respondent . Meiselman, his two brothers , a nephew, and
a foreman stationed themselves across the street, from the polls.
NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 543
We find that their presence was intended to and did have the effect
of restraining the employees from voting in the election. Following
the election, many employees who voted were laid off or discharged.
They were told that the respondent did not have any work for
"voters."
The campaign to keep employees from voting was markedly effec-
tive. This is best judged by the results of the election. Although
approximately 225 employees were eligible to vote in the election,
only 59 employees, or less than 25 per cent, participated. All but
three of these employees voted for the Union.° We can appreciate
the potency of the respondent's efforts to prevent employees from
voting when we consider the nature of our experience in conducting
elections. In the 13-month period from June 1, 1938, to July 1,
1939, we held 323 elections. In all but 11, a majority of the em-
ployees involved in each election participated.1° Our experience
has also shown that as a rule 90 per cent of all workers eligible to
vote in Board elections actually cast ballots.
We find that by questioning, warning, threatening, and intimidat
ing employees with respect to their membership in the Union, by
acquiescing and assisting in the circulating of the anti-union petition
described above, and by its campaign to prevent employees from
participating in the election, the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
C. The refusal to bargain
On June 1, 1939, the Board issued a Decision and Certification"
of the Union as the exclusive representative of the production and
maintenance employees of the respondent, excluding clerical and
supervisory employees. This Decision and Certification followed
the results of the election, hereinbefore described, in which 59
employees, out of an approximate 225 eligible, took part. Fifty-six
of the 59 cast their ballots for the Union to give it a substantial
majority of those employees who participated.
Immediately following the issuance of this Decision and Certifi-
cation, the Union communicated with the respondent by letter, re-
questing it to fix a date on which the Union and the respondent
could meet to begin collective bargaining. This letter was not
answered. On June 2 and again on June 3, a representative of the
O According to the testimony of Madge Bramblett , Meiselman told her that he *had
instructed three girls to vote in the election for the respondent.
10 Of the 11 elections in which less than a majority participated, 7 involved steamship
companies with the attendant difficulties in conducting the elections.
11 Matter of New York Handkerchief Company and International Ladies Garment Workers
Union, Local No . 76, 7 N. L. R. B. 624.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union attempted to meet with', Meiselman. - On both occasions, Mei-
selman refused to see the union representative. Again on June 16,
1938, the Union wrote to the respondent and again no answer was
made to its letter.
These facts were admitted by the respondent in its answer. It
did not deny that it had refused to bargain collectively after the
Union had been certified byi the Board. The respondent contended,
however, that the Board was not empowered to certify the Union
since less than a majority participated in the election 12
We have had occasion to give extended analysis to this argument
advanced by the respondent. In Matter of R. C. A. Manufacturing
Company, Inc. and United Electrical c6 Radio Workers of America,-
we directed an election between the Employees' Committee Union
and the United Electrical and Radio Workers of America. Before
the election was held, the Employees' Committee Union decided to
boycott the election and proceeded to engage in a campaign designed
to discourage participation in the election. As a result of these
tactics, only 3,163 employees voted out of a. total number of 9,752
employees eligible to participate in the election. An overwhelming
majority of those employees who voted designated the United Elec-
trical and Radio Workers of America. Upon the basis of this result,
we certified the United Electrical and Radio Workers of America as
the exclusive representative of the employees.
In this case, we discussed the possible interpretations to which
Section 9 (a) of the Act was subject. This section provides that
"Representatives designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit appropriate for
such purposes, shall be the exclusive representative of all the em-
ployees in such unit. . ." We noted that "majority of the employees"
might mean (1) a majority of those eligible to vote, (2) a majority
of those who voted providing a majority of those eligible to vote
participated in the election, and (3) a majority of those who voted
12 It also argued (1) that no question concerning representation existed, which it made
by stating there was no "labor dispute," (2) that the Board had no authority to direct
an election because the Union did not represent a majority of the employees, and (3)
that the Board had no authority to direct an election since the Union did not represent
any employees. We find these three reasons to be without merit. A question concerning
representation had arisen as a result of the respondent's refusal to bargain with the
Union and the Union introduced sufficient proof of adherence to entitle it to an election.
Had it not been designated by a majority in the election which we directed, we would
have dismissed the petition.
13 2 N. L. R. B. 159. See also Matter of American Hawaiian Steamship Company and
Gatemen, Watchmen and Miscellaneous Waterfront Workers Union, Local 38•-124; Inter-
national Longshoremen's Association, 2 N. L. R. B. 195; Matter of Williams Dimond d
Company, et al. and Port Watchmen, Local No. 137, 2 N. L. R. B. 859; Matter of Charles
Cushman Shoe Company, at al. and United Shoe Workers of America, 2 N. L. R. B. 1015,
1034; . Matter of Dahlstrom Metallic Door Company and United Electrical, Radio &
Machine Workers of America, Local No. 307, 11 N. L. R. B. 408.
NEW YORK HANDKERCFIIEF MANUFACTURING COMPANY 545
even though less than a majority of those eligible to vote took part
in the election.
We gave thorough consideration to the various interpretations.
In adopting the third interpretation, we observed, inter alia, that a
contrary interpretation would place a premium on the tactics em-
ployed by the Employees' Committee Union to defeat the very pur-
poses of the Act. In an obiter dictum statement we said, "Employers
could adopt a similar strategy and thereby deprive their employees
of representation for collective bargaining."
In the instant case we have fully considered the strategy, used by
the respondent to prevent its employees from voting in the election.
We have found that this strategy accomplished its purpose. We have
also found that the activities pursued by the respondent constituted
a gross form of interference with, restraint, and coercion of its em-
ployees in the exercise of the rights guaranteed by the Act. If we
were obliged to hold that the election was inconclusive, then the
respondent, through the violation of another section of the Act, would
have succeeded in upsetting the machinery which the Act provides
for an investigation and certification of representatives. The con-
tention of the respondent herein is plainly untenable.
We find, at all times since June 2, 1938, the respondent has refused
to bargain collectively with the Union as the representative of all the
maintenance and production employees of the respondent excluding
clerical and supervisory employees and that the respondent has
thereby interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed by Section 7 of the Act.
D. The discharges, discriminations, and lay-offs
1. The pressers
The complaint alleged that the respondent discharged Frances
Ellington, Thelma Knox, Earley Hurley, and Ruth Harris and caused
Limmie Edwards and Minnie Jackson to work fewer days than other
employees doing similar work because of their activity and member-
ship in the Union. The respondent denied that it had discriminated
against or discharged any of the above-named employees. It alleged
that these girls were laid off or given less work during the continuance
of the respondent's slow season.14
14 In Matter of Tovrea Packing Company, a corporation, and Amalgamated Meat Cutters
and Butcher Workmen of North America, Local No. 313, 12 N. L. R. B. 1063, we said:
"The word 'lay-off' as distinguished from 'discharge' usually implies that the employee
may be reemployed at some future date. For our purposes it is immaterial which word
is used to designate the termination of employment. The issue for our determination is
whether or not the respondent discouraged membership in the union, either by discharging
or by laying off the above-named employees. For the sake of the following discussion we
shall use the term 'lay-off,' preferred by the respondent." We will proceed in like manner
herein.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These six girls worked as pressers. The respondent had approxi-
mately 21 pressers in its employ prior to the election. We will dis-
cuss first the employment history of each of these girls and their
relations with the respondent.
Frances Ellington had worked for the respondent for approxi-
mately 3 years before she was laid off on March 25, 1938. She joined
the Union when it was organized in September 1937. On the day
of the election, she was asked by Bessie Marshall to and did sign the
petition. At the end of that day, Marshall told her that since she
had signed the petition, she did not have to go to the polls. Never-
theless, she voted in the election. She was observed by Thelma Lewis
who advised her not to vote if she was going to vote against the
Union. On the day following the election, Marshall laid her off
and informed her that the respondent did not have any work for
"voters." She had not worked for the respondent from that day to
the date of hearing.
Thelma Knox was hired by the respondent in August 1934 and
laid off on March 25, 1938. She had joined the Union in the fall of
1937. She participated in the election and was seen by Thelma Lewis
and the other girls. She had not been reemployed at the time of
the hearing.
Earley Hurley began to work for the respondent in 1929. She
became a member of the Union in the fall of 1937. She voted in
the election contrary to the advice given her by Lewis as she came
to the polls. On March 29 she was laid off and had not been rehired at
the time of the hearing. The respondent maintains, in its brief,
that she has since been reemployed.
Ruth Harris had worked for the respondent from March 1933
until March 29, 1938, when she was laid off. She joined the Union
in the fall of 1937. She heard Lewis state that employees who voted
in the election would not have a job with the respondent and that if
the employees were "for him," they were not to go to the polls. At
the polling place, Lewis advised her that she was not "supposed to"
vote. She has not been employed by the respondent since the date
on which she was laid off.
Limmie Edwards had been employed by the respondent for about
3 years before she was laid off on the day after the election. At the
polls she heard Lewis and the other girls say that "if you are for
Jack, don't go in there." She was reemployed on June 9, 1938.
Minnie Jackson had worked for the respondent since 1929 prior
to the election in which she took part. She joined the Union in the
fall of 1937. She was laid off on the day following the election. On
June 14, 1938, she was called back to work.
The respondent contends that these lay-offs were necessitated by
the drop in production after the election. The evidence introduced
NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 547
by the respondent proves that production decreased to a substantial
extent following the time of the election. From the production
charts prepared by the respondent, it appears that the decrease set
in sometime between March 12 and March 26, 1938, and became more
acute thereafter. By April 25, production was approximately 50
per cent below that of the preceding February. From this low, pro-
duction commenced to pick up during the months of May and June.
Although the respondent claimed that the decrease was unusually
great, a slow-up in production at this time of the year was a usual
occurrence.
The employees affirmed the respondent's contention that produc-
tion habitually dropped at this time of year. But they maintained
that in other years the respondent followed a policy of dividing the
available work among all the girls. Meiselman admitted that the
foreladies, who were entrusted with making the lay-offs, were in-
structed to divide up the work equally, as best they could.15 He
testified that he desired to maintain the entire organization during
the slack period. He also admitted that in 'other slow periods the.
employees alternated in working.'"
Bessie Marshall, the forelady in charge of the pressers, explicitly
stated that it was the practice of the respondent to divide the avail-
able work among all the girls. She testified as follows :
Q. Well, the next week then do you lay the other section off.
A. That is the way it goes. Lay off a section this time. and
next time the other girls.
Q. You consistently follow that, do you?
A. That is it.
The Board's attorney then inquired why the pressers whose cases
we are now considering, had not received more work. She replied :
A. Well, we was expecting for the work to pick up and because
we didn't call them back is from changing them around from
mangle to mangle it burns up so many sheets and uses so much
' The respondent does not follow a policy of seniority in making ]ay-offs.
1BMeiselman's testimony in this respect tended to be confusing but does not alter the
conclusions that in other years the respondent divided the work. He testified, in part, as
follows :
Q. You have heard testimony of some of the girls that when work was slack
all the girls would be sent home in the middle of the week, and perhaps were back.
the next Monday and that all participated in what work there was?
A. It was not done that way.
Q. It was not?
A. No, they alternated, or sometimes they alternated, and let come In and some
stay away, and sometimes they sent them home for a solid week, sometimes for two
weeks. If a girl was sent home she was told to come back maybe In three days
and we have had times when girls have been laid off-we have got girls who were
laid off, folders and pressers that were laid off In December and have not been called
back yet.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gas, and so much trouble to make out a page for this girl one
day and one the next.
Q. So you just left the same girls that were on the jobs stay
there.
A. That is it.
We do not attach any weight to the reason advanced by Marshall
to justify the respondent's failure to divide the work at this time.
Meiselman admitted that the foreladies were instructed to divide
the work and in previous years the work had been divided despite
the inconveniences suggested above. It is significant, we believe, that
the respondent has not advanced the argument suggested by Marshall
in any of its briefs.
The respondent introduced into evidence cards for each of the em-
ployees indicating the hours of work 17 and the wages they received
-for each 2-week period extending from March 12, 1938, to May 21,
1938. Since the girls were paid by the piece the number of hours
.that they worked is more significant, for our purposes, than the
-wages they received.'8
Pressers-Num-
her of hours
worked
Average
hours
worked
bi -
weekly
Pressers-Num-
her of hours
worked
Average
hours
worked
bi-
weekly
Feb. 6- Mar. 12- Mar. 26- Feb. 6- Mar. 12- Mar. 26-
Mar. 12 Mar . 20 May 21 Mar. 12 Mar. 26 May 21
1. R. Bradford ------- 75 56 64 . 2 12. I . Turuer _________ 73 56 26.1
2. V. Fuller__________ 68 56 73.8 13. C. Bass ___________ 74 4 56 53.4
3. S. Lane -_-______- 67 48 74.8 14. A. Lee 81 64 ---------
4. L. Clinton-------- 72 56 71.8 15. M. Mitchell------- 604 64 ---------
5 . B. Lewis_______ ___ 81 56 74.3 16. F. Ellington I ______ 73 56
6. G. Bannister------ 69 64 73 . 9 17. T. Knox___________ 73 63% .........
7. Z. Branch
---------
81 56 73.7 18 . E. Hurley_________ 75 48 ---------
8 . J. Ware
-----------
28 56 73 . 9 19. L . Edwards ------- 69 56 ---------
9 . B.Tatum
-------- _
75 56 76.9 20 . R. Harris_________ 75
.
56
---------10 . A. McG ill -- 69 64 74 . 4 21. 51. Jackson_______ 68^tt 64
11 . S. Eckford--------
-
60 56 42.2
I The girls whose names are italicized were allegedly discriminated against.
In the first column is listed the number of hours worked by em-
ployees for the 2-week period ending March 12, 1938. Production
for this period was normal. The hours of work for the succeeding
17 These cards indicated the number of hours the girls were on the premises and not
the total number of hours actually worked by them. But as the respondent stated in its
brief, "there never was a time when one girl waited a greater length of time than other
girls, so that in the space of a week, the waiting period would practically be the same
for all girls ." we can, therefore , make a comparative study of these cards without making
any.allowance for the time during which the girls were on the premises but not working.
1s Some girls might be slower than others . If all were given the same or approximately
,same, number of hours of equivalent work , no discrimination would exist even if certain
girls earned more money than others.
NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 549
2 weeks are contained in the second column. During this period,
there was an appreciable drop in production. But it is apparent
therefrom that none of the pressers were laid off. Instead, each
worked a fewer number" of hours. This would be in accordance with
the policy which the respondent followed in other years. The third
column contains the average number of hours that the pressers worked
in each of the bi-weekly periods during the succeeding 8 weeks.
These figures indicate that certain pressers worked a greater number
of hours biweekly after March 26, when production took a further
drop, than they had for the preceding 2 weeks. On the other hand,
the six employees whom we are now -considering received practically
no work at all.19 Instead of dividing the work as it had from
March 12 to March 26, 1938, the respondent gave all the work to
certain girls to the exclusion of others.
While the respondent failed to make a division of the available
employment among the pressers and, as we find below, among the
shakers, 'in practically every other department it divided the avail-
able employment as it had in former years. This appears from the
employment records which the respondent introduced into evidence.
We are convinced from the facts and circumstances of this case
that the respondent has discriminated against Ellington, Hurley,
Harris, Jackson, Knox, and Edwards because of their union activity.
Despite the respondent's expressed hostility to the Union, these em-
ployees continued as members. In the face of the respondent's
vigorous efforts to keep employees from voting in the election, these
employees took part. Almost immediately thereafter their work
was terminated. Although the respondent had been dividing the
available work during the slack preceding 2 weeks, it refused to make
a division of the work thereafter among the pressers and the shakers.
This was contrary to the policy it had observed in other years and
the procedure it followed in other departments of the plant after
March 26, 1938: No satisfactory reason for this change in policy
was advanced.
The respondent maintained that towards the latter part of May
it told the girls who were working to inform their friends to return
to work.20 None of these six girls was apprised of this notice or
10 Harris and Hurley both worked until March 29, 1938, before they were laid off.
They were credited with having received 8 and 103/4 hours of work respectively,, between
March 26 and March 29, 1938,
20 Near the beginning of the hearing, the attorney for the respondent offered to introduce
Into evidence copies of notices allegedly sent to certain employees including Ellington and
Hurley. Ellington and Hurley denied receipt of these notices. Thereupon, the Trial
Examiner asked the respondent's attorney to prepare for him a list of those employees, to
whom notices were allegedly sent. The Trial Examiner said that he would communicate
'with the post office authorities and have them attempt to trace the letters. The re-
spondent's attorney promised to give the Trial Examiner such a list on the following
day. Although the Trial Examiner made frequent requests for this list on the succeeding
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
returned to work as a result of it. We do not consider this a satis-
factory offer of reinstatement nor does it alter our determination
that, the respondent discriminated against these girls.
The respondent mentions frequently in its briefs that certain em.-.
ployees who were laid off or discharged did not make a diligent
effort to secure other employment and seems to suggest that we
should consider the laxity of these employees in seeking other em-
ployment in computing the amount of back pay to be awarded them.
We find no merit in this argument. For one thing, the record does
not establish that the employees have been unduly lax in seeking
other employment and, for another, we are not required by the Act
in computing back pay to consider the efforts of an employee to
secure other employment after he has been discriminatorily laid off
or discharged.21
Ruth Harris testified at the hearing that she did not wish to return
to the respondent's employ under the same working conditions. We
will, accordingly, award her back pay only up to the time of. hearing.
The respondent states in its brief that Thelma Knox was told to
report to work on June 1, 1938, when she telephoned to inquire about
employment. Knox testified, and her testimony was not contradicted,
that she was told when she called that the respondent did not have
any work for her. We accept her testimony as true.
The respondent argued that Ellington had been advised to return
to work and through a girl named Jessie Ware informed the re-
spondent that she could make more money at the races. Ellington
denied that she had received notice to return to work or that she
had replied in that manner. Although Ware was still employed by
the respondent at the time of hearing, she was not called as a witness.
The Trial Examiner concluded that Ellington was telling the truth
and we also credit her testimony.
We find that by laying off Ellington, Hurley, Harris, Knox, Jack-
son, and Edwards because of their union activity 'and participation
in the election the respondent has discouraged membership in a labor
organization and has thereby interfered with, restrained, and coerced
r.
days of the hearing, it was not forthcoming. On the last day of the hearing, the re-
spondent 's attorney again offered these notices for admission into evidence . The Board's
attorney objected upon the grounds that a proper foundation had not been laid. The
respondent 's attorney then offered to withdraw the alleged notices maintaining that the
record was sufficient without these notices. Pursuant to this statement of the respondent's
attorney , the Trial Examiner rejected the notices and had them placed in a rejected file.
We see no reason to reverse this ruling or to give any consideration to these alleged
notices.
21 The respondent also argues that the fact that certain employees who were laid off
did not seek other employment indicates that they appreciated that the lay-off was tem-
porary. The respondent would have us infer therefrom that the lay-offs were not dis-
criminatory. We do not believe that this circumstance , if it existed , would warrant the
conclusion sought by the respondent.
NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 551
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
2. The shakers
It was alleged in the complaint that the respondent discharged
Martha Evans and Eddie Lee Washington because of their activity
and membership in the Union. This was denied by the respondent.
As with the pressers, the respondent maintained that these girls were
laid off because of the seasonal drop in production.
Martha Evans had been employed by the respondent since Jrdy
1935. She had joined the Union in the fall of 1937. On March 29,
after the election in which she participated, Evans was laid off and
did not work for the respondent from that day to the date of hearing.
The respondent stated in its brief that she has since been rehired.
Evans was advised by Lewis not to vote in the election since the peti-
tion, which she had signed, was equivalent to a "No" vote. When
she was laid off, her forelady informed her, "But I told you girls to
stay away from the voting poll."
Eddie Lee Washington had worked for the respondent from 1929
until she was laid off after the election. She had joined the Union
in the fall of 1937. She voted in the election and was observed by
Lewis at the polls. She has not worked for the respondent since
she was laid off.
We have discussed in connection with the pressers the usual prac-
tice which the respondent followed in laying off employees during
the slack periods. We concluded that it was customary to divide
the work among all the girls. This conclusion applies with equal
force to these employees.
The following chart contains the number of hours which the shak-
ers worked for the same 12-week period used for the pressers. It
was made up in the same manner and also from the wage and hour
cards introduced into evidence by the respondent.
Shakers-Num. Averagehours Shakers--Num.
Average
hours
her of hours worked her of hours workedworked bi-weekly worked bi-
weekly
Feb.26- Mar.12- Feb.26- Feb.26- Mar. 12- Feb. 26-
Mar. 12 Mar . 26 May 21 Mar . 12 Mar. 26 May 21
1. P. Hickman ------- 72 48 74. 9 5. S. Means -------- 168 48
2. W. Stephens------- 69 56 73 . 6 6. A. Jacobs __________ 73 44
---------
3. F. Stewart --------- 83 80 76.9 7. M. Evans__________ 89 72
_
4. C. Johnson--------- 73 61 ;44 48 . 4 8. E. Washington ----- 83 80
________-
---------
I It appears that Means worked 91,44 hours after March 26, 1938 , Jacobs 97 hours , Evans 16 hours, and
Washington 10- hours.
As with the pressers, this chart reveals that the respondent divided
the available work for the 2 weeks before the election whereas there-
247383-40-vol. 16-36
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after certain girls received more work than they received previously
while Evans and Washington received practically none. .
Considering the respondent's hostility to the election in which
Evans and Washington participated and the policy of dividing
available work which the respondent followed in other years, we
find that the respondent has discriminated against these two girls
and \has thereby discouraged membership in the Union. We also
find that the respondent has thereby interfered with, restrained, and.
coerced its employees in the exercise of the rights guaranteed by
Section 7 (a) of the Act.
The respondent contends in its brief that Washington was notified
to return to work but failed to do so. We find that the evidence
does not support this contention.
3. Ada White
Ada White was discharged on November 5, 1937, allegedly as part
of an efficiency plan. She had worked for the respondent intermit-
tently from 1924. She had joined the Union in September 1937.
In March 1937, after Meiselman had reduced the wages of the
employees, White, together with several other employees, visited
Meiselman to request a restoration of this wage-cut. White spoke
for the girls, stating their contentions. After some discussion,
Meiselman said that he would restore the cut after a week or two.
The following day, the girls engaged in a short stoppage of work in
protest against his failure to make an immediate restoration.
Meiselman quickly appeared on the scene and walked from table to
table asking the girls what they wanted. White acted as spokesman
for her table. Meiselman promised to restore the wage-cut for most
of the employees but the girls refused to return to work unless he
restored the wage-cut for all the employees. Meiselman then called
the police who tried to induce the girls' return to work. During
the ensuing melee, Meiselman engaged in an argument with White
and accused her of turning off the power which led to the stoppage
of work. Meiselman told the officers to put White out of the plant,
which they proceeded to do. The other girls objected, stating that
if White had to go, they would all leave. Meiselman thereupon
agreed to permit White to remain.
Meiselman contended that White had been discharged because she
was a slow, although a good worker. He testified, "We had been
discussing a new plan-I didn't know that she was going to be
discharged, but when I got back from New York or New Jersey
I had seen how efficiently some of the plants had been-individual
girls had been producing this same type of work, and when I got
back I had in mind to put our plant on the same basis as the Eastern
NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 553
plants. I had discussed two or three girls with the forelady and
nothing definite was done on it at that particular time. Then one
day I found out that we were ready to go ahead with the plan, and
the way I found out about it is when the girl came for her pay."
In order to demonstrate that White was a slow worker, Meiselman
introduced into evidence the amount of her earnings and hours for
each 2-week period from August 1 to November 6, 1937. He also
introduced into evidence the corresponding earnings and hours of
three other girls doing the same work as Ada White. Since the
girls were paid by the piece it is possible to compute their per-hour
rate of earnings. Ada White maintained the following per-hour
rate for each 2-week period.
For the 2-week period ending August
11 11 11 11 11
1i tt ti 11
11 11 11 11