Pioneer Pearl Button Co.

National Labor Relations Board - Board Decisions

Jun 1, 1936

1 N.L.R.B. 837 (N.L.R.B. 1936)

' In'tthe"' Matter Of PIONEER PEARL BUTTON COMPANY and BUTTON
WORKERS ' UNION, FEDERAL LOCAL 20,026
Case No. C-64.Decided June 1, 1936
Button Industry-Strike-Unfit Appropriate for Collective Bargaining: eli-
gibility for membership in only organization making bona fide effort at col-
lective bargaining ; employees on piece work basis-Representatives: proof of
choice: membership in union-Collective Bargaining: refusal to negotiate with
representatives ; refusal to recognize representatives as bargaining agency rep-
resenting employees-negotiation in good faith : meeting with representatives
but with no intention of bargaining in good faith ; counter proposals ; reason-
able effort-employer's duty as affected by strike-Reinstatement Ordered,
Strikers: displacement of employees hired during strike.
Mr. Robert Ris$man, for the Board.
Mr. Harold J. Alton and Mr. John W. Mwrdoeh , of Wabasha,
Minn., for respondent.
Mr.•Samuel 0 . Zack, of counsel to the Board.
DECISION
STATEMENr OF CASE
On January 29, 1936, the Button Workers' Union, Federal Local
20,026, hereinafter referred to as the Union, filed with the Regional
Director for the Twelfth Region an amended charge 1 that the Pio-
neer Pearl Button Company, Wabasha, Minnesota, had engaged in
unfair labor practices prohibited by the National Labor Relations
Act, approved July 5, 1935, hereinafter referred to as the Act. On
January 30, 1936, the Board issued a complaint against the Pioneer
Pearl Button Company, hereinafter referred to as the respondent, the
complaint being signed by the Regional Director for the Twelfth
Region and alleging that the respondent had committed unfair labor
practices affecting -commerce within the meaning of Section 8, subdi-
visions (1), (3) and (5), and Section 2, subdivisions (6) and (7),
of the Act. In respect to the unfair labor practices the complaint
alleged in substance:
1. That the blank cutters employed by the respondent at its plant
at Wabasha, Minnesota, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b)
of the Act;
I A charge had previously been filed with the Regional Director for the Eighteenth
Region. The amended charge was filed after the Board had, by appropriate order, trans-
ferred the proceeding to the Twelfth Region
837
838 NATIONAL LABOR RELATIONS BOARD
2. That on or before June 6, 1935, a majority of the employees
in said unit had designated the Button Workers' Union, Federal
Local 20,026, as their representative for the purposes of collective
bargaining with the respondent;
3. That on or about October 25, 1935, November 2, 1935, November
11, 1935, and November 16, 1935, the respondent did refuse to bar-
gain collectively with the Union as representative of the respondent's
blank cutters;
4. That the respondent, by its refusal to rehire or reengage Emma
Schones, Herbert Beaulieu, Tessie Koch, Ambrose Hopkins, Roy
Hopkins, Amy LaBresh, Leslie LaBresh, Margaret Welch, Mary
Caves, Jim Caves, Harold Beahm, Pearl Blatter, Madeline Blatter,
Mary Hughley, Dorothy Hagedoim, Florence Lark, Mrs. Ben Ken-
nebeck, Adolph Caduff and Jean Sherwood, following a strike of
the employees engaged at the said plant on or about June 5, 1935, did
discriminate against said employees, within the meaning of Section
8, subdivision (3) of the Act.
The complaint and notice of hearing were served on the respond-
ent and the Union in accordance with Articles V of National Labor
Relations Board Rules and Regulations-Series 1. ' The respondent
filed its answer to the complaint, denying (1) that it is engaged in
interstate commerce within the meaning, of the Act; (2) that it
discriminated against the Union employees above'inamed; and (3)
that it has refused or failed to bargain collectively with the Union
as ,the representative of the blank cutters.
Pursuant to the notice, a -hearing was held in Wabasha, Minne-
sota, on February 13, 14 and 15, 1936, before Leon M. Despres, the
Trial Examiner duly designated by the Board. Full opportunity
to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues, was afforded to all parties.
The respondent filed a motion to dismiss the, complaint on con-
stitutional grounds. The Trial Examiner denied the motion. His
ruling is hereby affirmed.
On March 7, 1936, the Trial Examiner duly filed his intermediate
report, copies of which were duly served on the"parties, in which
he found that the respondent had engaged in unfair labor practices
affecting commerce within the meaning of Section 8, subdivisions
(1) and (5), and Section 2, subdivisions (6) and (7) of the Act.
On March 18, 1936, the respondent filed a statement of exceptions
with the Board.
Upon the record in the case, the stenographic report of the hear-
ing, and all the evidence, including oral testimony, documentary and
other evidence, offered and received at the hearing, the Board makes
the following :
DECISIONS AND ORDERS
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
839
1. The Pioneer Pearl Button Company is a New York corporation
engaged in the production, sale and distribution of fresh water pearl
buttons. Its main plant is located in Poughkeepsie, New York. It
has three branches, located in Dover, Kentucky; Freemont, Michi-
gan; 'and Wabasha, Minnesota.
2. The buttons produced by the respondent are cut from clam shells
at the respondent's branch plants. After the rough shells are cut,
and before they are finished into buttons, they are called blanks.
For finishing into buttons, the blanks are forwarded from the branch
plants to the Poughkeepsie plant. The only operation which the
branches perform is the cutting of blanks.
3. The clam shells represent practically 100% of the raw material
used by the respondent in connection with its business at the Wabasha
plant. These shells are obtained mainly from the Mississippi River,
a navigable stream forming the boundary between the states of Minne-.
sate and Wisconsin. The clam shells are obtained from both the
Minnesota and the Wisconsin sides of the river, and are forked
directly out of the river itself. Clams are also obtained in the Cannon
River, which is entirely within the State of Minnesota and which
flows into the Mississippi River. Other shells used by the respondent
come from Lake La Croix and Lake Pepin, a widening of the Missis-
sippi River. Both of these lakes lie in the States of Minnesota and
Wisconsin. The respondent purchases shells obtained from both sides
of these lakes.
The respondent has at times engaged clam diggers on exclusive
contracts and has considered them as its employees. It also buys
shells from other clam diggers in 500-pound to six-ton lots. There
are'no other buyers of shells in Wabasha.
The shells, after they come to the Wabasha plant, are placed in
fresh water vats to soak for a period of two weeks. At the end of the
soaking period, the shells are placed in buckets which hold about
twenty-five pounds of shells, and are taken to the machines. They
are thereupon placed on the machines and, by means of a saw, blanks
are cut. At the end of the day, the cutters take the blanks to a room
where the blanks are washed and sorted and then carried back to the
cutter's machine, where they are kept until "weighing day", which
usually is on Wednesday of each week. After being weighed, the
blanks are placed in bags and are shipped to the respondent's plant
at Poughkeepsie, New York, where they are finished into buttons and
sold for use on under-garments and shirts.
97571-36-vol. 1-54
840 NATIONAL LABOR RELATIONS BOARD
The Wabasha plant is not equipped to do any work other than cut-
ting blanks. The blanks are cut in various sizes depending on the
needs of the respondent. All instructions as to size are sent to the
Wabasha plant from the Poughkeepsie office of the respondent. After
the blanks are cut at the Wabasha plant, they can not be used for
any purpose of ordinary consumption. They constitute a partly
fabricated product.
4. Once a week, the washed blanks are shipped to the respondent's
finishing plant in Poughkeepsie. The shipment travels to its destina-
tion over three railroad lines; namely, Chicago, Milwaukee, St. Paul
and -Pacific Railroad, the Erie ` Railroad, and the New York;'=New
Haven and Hartford Railroad.
5. All of the aforesaid constitutes a continuous flow of trade, traffic
and commerce among the several States.
II. THE STRIKE AND THE FORMATION OF THE UNION
6. On May 27, 1935, immediately following the decision of the
Supreme Court of the United States holding the National Industrial
Recovery Act unconstitutional, the respondent instructed Archie
Huber, general manager of its Wabasha plant, to put into effect a new
scale of wage rates and hours. The new scale applied to the respond-
ent's blank cutters and called for an increase in the number of.hours
to be worked per week from 40 (the maximum under the Code for
the industry) to 50, and reduced the hourly rate of pay approximately
25 per cent. The respondent employed at that time 29 blank cutters
in its Wabasha plant. They expressed their dissatisfaction with the
new scale, but they agreed with Mr. Huber to try it out for one week.
The new schedule of wage rates and hours went into effect on May 29.
On June 5, when the trial week was completed and after their earn-
ings under the new scale had been computed, the employees expressed
considerable dissatisfaction with the results and requested an ,imme-
diate revision of the scale. Mr. Huber stated to them that he was
without authority in the matter, but that he would communicate the
employees' dissatisfaction to the respondent's home office. He also
stated that it would take about ten days before a reply could be
received and suggested that the blank cutters continue working in the
meantime under the terms of the new scale. The cutters refused to
accede to such a request. The power was thereupon shut off by
Huber, and the cutters left the plant. The plant remained closed
the rest of that day but was reopened the following day, June 6.
Ten of the 29 blank cutters returned to work on that day. The 19
blank cutters who did not return and who were then unorganized,
held a meeting that evening and organized Button Workers' Union,
Federal Local 20,026, for the purpose of creating an agency for col-
DECISIONS AND ORDERS 841
lective bargaining between the respondent and its blank cutters. On
June 14, the Union elected officers and appointed a grievance com-
mittee of seven, to negotiate with the respondent on matters of wages,
hours and other conditions of employment.
7. Among respondent's employees at the Wabasha plant only blank
cutters are eligible to membership in the Union. Unlike all the
employees at the plant, who are paid on a time basis, the blank cutters
are paid on a piece basis.
We find that the blank cutters employed by the respondent con-
stitute a unit appropriate for the purposes of collective bargaining.
We,find that on June 6, and at all times thereafter, the Union had
been designated by a majority of the blank cutters employed by the
respondent as their representative for the purposes of collective
bargaining.
8. Mr. Ethal , president of the respondent, came to the Wabasha
plant on June 8 but refused to meet with the temporary officers of the
Union and stated that he would deal only with the employees indi-
vidually. The Union members picketed the plant on June 6, 7 and,
10. The respondent closed the plant on June 10 and it was not
reopened until October 30. On November 12, the plant was again
shut down for a few days.
III. THE UNFAIR LABOR PRACTICES
A. Collective bargaining
9. On October 25, the grievance committee met with Huber at the
respondent's Wabasha plant. Huber urged them to request the Union
workers to return to work, which was to be resumed on October 30.
The committee, thereupon, in an endeavor to bargain collectively and
end the strike, requested that the respondent nullify the new scale
and at least reinstate the old schedule of hours and rates, but Huber
stated he had no authority to bargain collectively with them. He
did not offer to take this proposal up with the home office. The com-
mittee subsequently voted against recommending to the Union
employees that they return to work -under the existing scale.
10. After the plant reopened on October 30, the Union continued
its efforts to engage in collective bargaining with the respondent.
The committee, together with Frank Koester, vice president of the
Minnesota State Federation of Labor, met with Huber on November
2. At this meeting the Union again requested the respondent to
bargain collectively with it on matters of wages and hours. Huber
stated that he could not enter into such negotiations and further
stated that "there is no use trying to bargain with the company, as
they would not tie themselves to union regulation" and that "the
company would not have anything to do with organized labor".
$42 NATIONAL LABOR RELATIONS BOARD
11. The Union held a meeting at the City Hall in Wabasha on
November 11, and, with the aid of the Mayor, succeeded in getting.
Huber to attend the meeting. At the meeting, Huber again asserted
his lack of authority to bargain collectively and stated further that the
respondent would continue to refuse to bargain. The Union insisted
that he send a telegram to the respondent in Poughkeepsie, request-
ing an authorized representative to come to Wabasha to bargain col-
lectively with the Union. Huber stated that there was no use in
sending a telegram; that the respondent "would close down the plant
or move the machinery out of town". After much persuasion, Huber
sent the following telegram to the president of the respondent : -'
"Factory closed for indefinite period on account of labor
trouble until a company representative arrives to settle labor
dispute and wages reply at once by wire."
12. As a result of the telegram, Mr. Ethal came to Wabasha on
November 16. Whether he came because of the information that the
plant was closed down or because of the Union's desire to bargain
collectively with an authorized representative, is not clear. However,
the committee, together with Koester, did meet him that day. Ethal
stated that the respondent "would have nothing to do with the Union;,
that it had nothing to offer"; that "there was no use of trying to
attempt to get an agreement signed"; and that it "would not sign
anything with the Union". He also announced that the Union work-
ers could return to work, if and when vacancies occurred, at the new
scale of hours and wages which the respondent had put.into effect
on May 29.
At this meeting the committee stated to Ethal that it wanted a
40-hour week and a minimum weekly wage of $12; the minimum under
the invalidated Code for the industry had been $13 or $13.50. Ethal
did not submit any counter proposals, nor did he make a reasonable
effort to bargain with the Union. He did no more than assert that the
reason for the respondent's refusal to increase wage rates or reduce
the number of hours was because of its poor financial condition.
The committee doubted this statement, and one of its members asked
that the respondent show its books to the committee, or agree to have
them audited. Ethal refused, and did not offer to prove his conten-
tion that poor business conditions prevented a revision of the new
scale. At the hearing Huber admitted that there was no bargaining
between the respondent and the Union at this meeting.
13. At each of the meetings that the Union had with Huber, it
sought to bargain collectively with him as a representative of the
respondent. While it may be that Huber had no authority to bar-
gain with the Union, the requests for collective bargaining made to'
Huber by the Union were in effect notices to him as agent of the
DECISIONS AND ORDERS 843
respondent that the Union desired to bargain collectively. The re-
spondent, therefore, had knowledge of the Union's requests for col-
lective bargaining, and it was thus obliged to meet with the Union.
It did not do so until a considerable period of time had elapsed.
When Ethal, the respondent's president, finally did meet with the
Union, his attitude was peremptory and non-conciliatory even though
the employees had been on strike for several months. He did no
more than take refuge in the assertion that the respondent's financial
condition was poor; he refused either to prove his statement, or to
permit independent verification. This is not collective bargaining.
14. We find that the respondent refused to bargain with the repre-
sentatives of its employees on October 25 and thereafter, and that by
such refusal , the respondent did interfere with, restrain, and coerce
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
B. Discrimination
15. The complaint alleges that the respondent, by its refusal to
rehire or reinstate the 19 Union members, discriminated in regard to
hire and tenure of employment. The record fails to sustain such a
contention.
In July, when Huber met Hopkins, Huber asked Hopkins whether
the Union members would be willing to return to work. Again on
October 25, when Huber met with the grievance committee, he stated
that the plant would be reopened on October 29 or 30 and invited all
of the Union members to return to work. These invitations to the
Union members were turned down by them because of their refusal to
return to work under the terms of the new scale.
There was testimony to the effect that Huber stated, prior to the
reopening of the plant, that he would not reemploy Jim Caves, Mary
Hughley, Mary Caves and Pearl Blatter. Huber denied that he ever
made such a statement. Without making a finding as to that state-
ment, but assuming that Huber did make such a statement, the record
shows that the persons named did not at any time apply for reinstate-
ment and, further, that they did not return to work nor did they
intend to return to work under the terms of the new wage scale.
We find, therefore, that the respondent has not discriminated in
regard-to hire or tenure of employment against any of its employees
because they were members of the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON INTERSTATE
COMMERCE
16. Interference with the activities of employees in joining and
assisting labor organizations leads and tends to lead to labor disputes
that burden and obstruct commerce and the free flow thereof. The
844 NATIONAL LABOR RELATIONS BOARD
effects that a labor dispute may have on the operation of a business
are shown by the facts in this case. On June 5, 1935, the day on
which the blank cutters protested against the decrease in rates and
increase in hours, the Wabasha plant ceased operations. Although it
reopened the following day and resumed operations with a skeleton
crew for three days, it was finally compelled to close its doors and
remain closed until October 30, 1935.
Not only did the labor dispute interfere with the operations of
the Wabasha plant from June 5 to October 30, but it was also the
cause of the plant's closing down for a few days starting November
12. At all times while the Wabasha plant was operating there were
continuous shipments of the blanks from Wabasha to the finishing
plant at Poughkeepsie, New York; but, during the period in which
the plant had ceased operations, there were no shipments of such
blanks to Poughkeepsie. '
We find that the aforesaid acts of the respondent have led and tend
to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
THE REMEDY
The Union sought on at least three occasions to enter into collec-
tive bargaining with the respondent, but all of those attempts on the
part of the Union were unsuccessful because of the fact that the re-
spondent deliberately refused to enter into such negotiations. It may
well be that if the respondent had fulfilled the obligation resting
upon it to bargain collectively with the Union that the strike would
have been settled and the blank cutters returned to work. It is be-
cause of its refusal to so bargain that the blank cutters are now
without employment.
It would be futile simply to order the respondent to bargain with
the Union since the plant now has its full quota of blank cutters :
the process of collective bargaining would yield little to those blank
cutters who are not employed. Those Union workers who have not
obtained employment elsewhere are out of work as a consequence of
the respondent's wrongful acts. If they are to be put in statu quo
and if the interference with the union activities of its employees is to
cease, the Union workers who went on strike must be returned to
work, even though it may mean that workers hired subsequent to
October 25, 1935, the earliest date on which the respondent refused
to bargain after July 5, 1935, the effective date of the Act, shall have
to be displaced.
DECISIONS AND ORDERS 845
CONCLUSIONS OF LAW
1. The Union is a labor organization, within the meaning of Sec-
tion,•2i subdivision (5) of the Act.
2. The blank cutters employed by the respondent at its Wabasha
plant constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act.
3. By virtue of Section 9 (a) of the Act, the Button Workers'
Union, Federal Local 20,026, having been designated on June 6, 1935,
as their representative for the purposes of collective bargaining by a
majority of the employees in an appropriate unit, has been at all times
since such date, the exclusive representative of all the employees in
such unit for the purposes of collective bargaining.
4. The- respondent, by refusing to bargain collectively with the
representative of its employees, has engaged and is engaged in unfair
labor practices, within the meaning of Section 8, subdivision (5) of
the Act.
5. The respondent, by interfering with, restraining and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged and is engaging in unfair labor practices, within
the meaning of Section 8, subdivision (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions
(6) and (7) of the Act.
7. The respondent has not engaged in and is not engaging in un-
fair, labor practices, within the meaning of Section 8, subdivision (3)
of the Act.
ORDER
On the basis of the findings and the conclusions of law, and pur-
suant to Section 10, subdivision (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Pioneer Pearl Button Company, shall:
1. Cease and desist
(a) from in any manner interfering with, restraining or coercing
its employees in the exercise of the right to self-organization, to
form, to join or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid and protection, as guaranteed in Section l of the National
Labor Relations Act;
(b)" from refusing to bargain collectively with the Button Workers'
Union, Federal Local 20,026, as the exclusive representative of all
its blank cutters for the purpose of collective bargaining in respect
846 NATIONAL LABOR RELATIONS BOARD
to rates of pay, wages, hours of employment, and other conditions of
employment.
2. Take the following action, which the Board finds will effectuate
the policies of the Act :
(a) Offer to Emma Schones, Herbert Beaulieu, Tessie Koch, Am-
brose Hopkins, Roy Hopkins, Amy LaBresh, Leslie LaBresh, Mar-
garet Welch, Mary Caves, Jim Caves, Harold Beahm, Pearl Blatter,
Madeline Blatter , Mary Hughley, Dorothy Hagedoim, Florence
Lark, Mrs. Ben Kennebeck, Adolph Caduff and Jean Sherwood,
immediate and full reinstatement, respectively, to their former posi-
tions, with all rights and privileges previously enjoyed;
(b) Upon request, bargain collectively with the Button Workers'
Union, Federal Local 20,026, as the exclusive representative of all its
blank cutters for the purpose of collective bargaining in respect to
rates of pay, wages, hours of employment and other conditions of
employment.