Radiant Mills Co.

National Labor Relations Board - Board Decisions

Mar 4, 1936

1 N.L.R.B. 274 (N.L.R.B. 1936)

In the Matter of RADIANT MILLS COMPANY, A CORPORATION and J. R.
SCARBROUGH AND GEORGE SPISAK
Case No. CD. Decided March 4,1936
Hosiery Industry-Interference, Restraint or Coerezon : propaganda against
union-Disorimanahon. lay -off; non -reinstatement following lay -off prior to
July 5, 1935-Reinstatement Ordered-Back Pay: awarded.
Mr. Nathan Witt for the Board.
Fauver & Fauver, by Mr. King Fauver, of Elyria, Ohio, and
Frankel d Frankel, by Mr. Philip Frankel, of Cleveland, Ohio, for
respondent.
Mr. Charles B. Drake, of Cleveland, Ohio, for American Federa-
tion of Hosiery Workers.
Mr. Stanley S. Surrey, of counsel to the Board.
DECISION
STATEMENT OF CASE
In October, 1935, J. R. Scarbrough and George Spisak, hereinafter
sometimes referred to as complainants, filed with the Regional Di-
rector of the National Labor Relations Board for the Eighth Region
a charge that the Radiant Mills Co., Inc. had engaged in and was
engaging in unfair labor practices contrary to the National Labor
Relations Act. On November 5, 1935 the Board issued a complaint
against the Radiant Mills Co., Inc., hereinafter sometimes referred
to as the respondent, said complaint being signed by the Regional
Director for the Eighth Region and alleging that the respondent had
committed unfair labor practices affecting commerce within the mean-
ing of Section 8, subdivisions (1) and (3), and Section 2, subdivisions
(6) and (7) of the National Labor Relations Act. In respect to the
unfair labor practices, the complainant alleged, in substance, that the
respondent, by L. B. Iglauer, its secretary, treasurer and manager,
on August 26, 1935 discharged J. R. Scarbrough and George Spisak,
knitters employed by the respondent at its plant in Elyria, Ohio, for
the reason that they had joined and assisted a labor organization
known as American Federation of Hosiery Workers, Local No. 114.
The complaint and accompanying Notice of Hearing were served
on November 5, 1935, on the complainants and the respondent in ac-
cordance with National Labor Relations Board Rules and Regula-
274
DECISIONS AND ORDERS 275
tions-Series 1, Article V. The respondent filed a motion to dismiss
the complaint on the ground of the unconstitutionality of the Act as
applied to the respondent and on the further ground that the com-
plainants were not employees of the respondent on or after July 5.
1935, the date on which the Act became effective. Without prejudice
to its rights under such motion to dismiss, the respondent also filed an
answer in which it denied the principal allegations of the complaint
and repeated the contentions urged in its motion to dismiss. On
November 14 and 15, 1935, a hearing was held at Cleveland, Ohio
by William R. Walsh, the Trial Examiner designated by the Board,
and testimony was taken. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded to the parties. Upon motion of the attorney
for the Board, acquiesced in by the attorney for the respondent, the
complaint was amended by changing the name of the respondent from
"Radiant Mills Co., Inc." to "Radiant Mills Company" so as to make
the name conform to that on its charter. During the hearing the
respondent again moved to dismiss the complaint and a ruling was
reserved by the Trial Examiner. At the conclusion of the hearing,
both attorneys presented oral arguments to the Trial Examiner, and
later the attorney for the respondent filed a written brief.
On December 16, 1935, the Board, pursuant to Section 35, Article
II of its Rules and Regulations-Series 1, directed that the proceeding
be transferred to and continued before it.
FINDINGS OF FACT
1. RADIANT MILLS COMPANY
The Radiant Mills Company is an Ohio corporation which owns
and operates at Elyria, Ohio a plant for the manufacture, distribu-
tion and sale of ladies' hosiery. The raw materials and other articles
used by the respondent in the manufacture of such hosiery-mainly
rayon, silk, cotton, paper boxes, paper, dye stuffs, chemicals, needles
and machines-are obtained practically entirely from points outside
of the state of Ohio. A compilation prepared by the respondent
covering the period from January 1, 1935 to October 31, 1935 shows
that 87.1% of such materials came from the states of Connecticut,
Illinois, Kentucky, Massachusetts, New York, North Carolina, Penn-
sylvania, Tennessee and Virginia, the specific articles and amounts
thereof obtained from each state being indicated in the compilation,
whereas only 12.9% was obtained in Ohio. The ladies' seamless
hosiery manufactured by the respondent is sold by it locally, through
its salesmen on the road, and through a sales agency. The respond-
ent's merchandise is sold by this agency through its New York and
276 NATIONAL LABOR RELATIONS BOARD
Chicago offices. A compilation prepared by the respondent covering
its total sales for the period from January 1, 1935 to October 31,
1935 shows that 82.8% of its products was sold to customers in states
other than the state of Ohio, the principal states being Michigan,
New York, Pennsylvania, Illinois and Minnesota. In that period the
respondent sold $159,816.95 worth of hosiery. About 60% of the
merchandise is marketed under the brand of the respondent and the
remainder under the brands of some of its customers. Both the raw
materials received and the hosiery sold are delivered on the basis of
F. O. B. the plant. About 85 persons are employed by the respondent,
its weekly payroll averaging between twelve and fourteen hundred
dollars.
II. THE UNFAIR LABOR PRACTICES
The complaint alleges, and the answer denies, that the respondent
on August 26, 1935 discharged J. R. Scarbrough and George Spisak
because of their membership in Local No. 114 of the American Fed-
eration of Hosiery Workers and their activities in connection with
that Union. In order to decide between the opposing contentions, it
is necessary to consider the background of events against which the
alleged discharges occurred. See In The Matter of Pennsylvania,
Greyhound Lines, Inc., decided December 7, 1935.
On May 18, 1935 a number of the respondent's employees attended
a meeting at which Local No. 114 of the American Federation of
Labor was organized. This organization is a labor organization
within the meaning of the Act. Practically the entire attendance at
the meeting, and consequently the membership of the new Local, was
composed of employees working on the night shift. Martin, one of
the employees who attended the meeting, that day informed Iglauer,
secretary-treasurer and manager of the respondent, of the meeting
and of those who had attended. Scarbrough and Spisak attended
this meeting and became members of the Local.
On May 20, a Monday and the next working day, Iglauer ad-
dressed the night shift. The formation of the Union had clearly
disturbed him and he was somewhat excited when he spoke. He said
he understood that they had attended the Union meeting and he then
spoke in a very deprecatory fashion about the American Federation
of Hosiery Workers. The history of that Union, as he viewed it,
was described to his employees. He said that it had been very un-
successful in Pennsylvania, that the Labor Board had decided against
it in Indianapolis, that in other areas its activities had forced plants
to close, and finally that its organizers were reds and communists and
he would not stand for such a Union in his plant. The night shift
was then informed that because of a lack of orders it was being laid
off temporarily. On the same day a notice was posted on the bulle-
DECISIONS AND ORDERS 277
tin board in the plant stating that the plant's policy has always been
that of the open shop and that no employee need join a union or
pay dues to any organization to hold his job. Scarbrough and Spisak
were knitters on the night shift and were laid off with the rest.
The short time elapsing between the formation of the Local and
the lay off, the undeniable anti-union tenor of the speech preceding
the lay off, and the fact that this was the first union activity at the
plant all compel the conclusion that the lay-off was intended to in-
timidate the night shift and thus discourage union organization. On
May 26, a Sunday, Scarbrough and Spisak in the company of or-
ganizers for the Union visited some of the employees of the respond-
ent at their homes and attempted to persuade them to join the Union.
However, after this date there was apparently little active solicita-
tion since the Union did not want to jeopardize the jobs of its
members.
The May 20th lay off lasted for about one to two weeks. When
the night shift returned to work and for a number of weeks there-
after they found near the time clock a number of copies of issues of
"The Hosiery Examiner", the official bi-weekly publication of the
Berks County Hosiery Employees Associations. These contained
numerous articles viciously attacking the American Federation of
Hosiery Workers and its leaders. The unrestrained anti-union bias
and the consequent distortion of facts in these articles are obvious.
The copies had been placed near the time clock by Iglauer.
On June 14, 1935, a Friday, the entire night shift was again laid
off for the stated reason of a lack of orders. Randolph, the super-
intendent, so informed Scarbrough, Spisak and Broda, the three
knitters on the night shift, stating that there were no orders and
that they were therefore being laid off. This lay off was apparently
not related to the Union question but was prompted by a shortage
of work.
At this point the testimony of Iglauer and the complainants is to
some extent contradictory. Iglauer states that he saw Scarbrough
and Spisak in his office on June 14 and informed them that the night
shift was being discontinued because it was unprofitable and that
they were "through" and so "should get other jobs". He accused
them of carelessness in the operation of the machines. However, he
concluded the conversation by stating that he had been trying to
obtain a large rush order and that he might be able to give them
more work, so that they should return on Tuesday next. Iglauer's
secretary, who stated she was in the office at the time, corroborated
this conversation, testifying that Iglauer had informed the two men
that "there was nothing for them to depend on there". Both Scar-
brough and Spisak deny that they spoke to Iglauer on June 14.
278 NATIONAL LABOR RELATIONS BOARD
Iglauer testified he again spoke to Spisak on Tuesday of the next-
week and said that, "You better grab the first thing you can grab,
because you have nothing to look forward to here". Spisak did not
testify regarding any such meeting. Both Spisak and Scarbrough
testified that they spoke to Iglauer in his office on June 21, at which
time they asked him if he could inform them when they would return
to work and whether they could share the work with the day shift.
They stated he said that was impossible. At no point in the conversa-
tion, according to their testimony, did he complain of their work.
Spisak at this time obtained his pay check for the last week he had
worked. Iglauer denies that he saw the men at this time, though his
secretary testified Spisak did obtain his check on that day. Scar-
brough's check was mailed to him on June 28, the accompanying
letter (Board Exhibit 4) reading in part as follows :
"We asked you to come in last Tuesday for further informa-
tion as to the probability of putting back the night shift. Busi-
ness has since made a decided turn for the worse and there is
no hope now of resuming that operation. We therefore suggest
that you immediately take the job you mentioned in the peach
orchard".
In the meantime, Scarbrough and Spisak had been elected on June
15, president and vice-president, respectively, of the Local. In the
succeeding months they stopped at the plant or spoke to the superin-
tendent or foreman several times to inquire when they would be
able to return to work.
At the end of July the respondent decided to resume the opera-
tion of the night shift. It accordingly asked the men employed on
that shift to return to work. At the time of the lay off there were
three knitters working on the night shift-Scarbrough, Spisak and
Broda. The last named had obtained a job elsewhere and did not
return when the night shift again commenced operations. Scar-
brough and Spisak were not recalled by the respondent. Instead
the respondent commenced to hire new and inexperienced young men
as knitters. Two were hired on July 29. Another was hired some
time in August but only remained for a few weeks. A third knitter
was hired on August 30 in his place. Two more were employed in
the middle of September and another at the end of October, as one
of those hired on July 29 had quit. Thus, at the time of the hearing
five knitters were employed by the respondent on the night shift.
All of the new knitters.were inexperienced young men who had
to be trained. Iglauer stated that this was the result of his de-
cision to inaugurate a new policy in regard to the night shift. He
believed that young men were more desirable operators, since the
older men who had worked long in the trade had become set in their
DECISIONS AND ORDERS 279
ways and were prone to be careless and lax in their work. The new
"knitters each operated about 25 machines as compared to 30 for
• each of the two complainants . Scarbrough, who was 37 years of
age, had been employed as a knitter in other mills before he com-
menced his employ with the respondent in 1928. He worked for the
respondent until 1930, returned in 1932 and had worked steadily
until the June 14 lay off. Spisak, who was about 34 or 35 years of
age, had entered the employ of the respondent in 1927, worked for
.a few months and left. He returned in 1931 and was laid off after
a few months. He was again employed in 1933 and had worked
until the lay off in 1935. The respondent's officials testified that the
,policy decision stated above was made sometime in June or July.
It was limited to the knitters on the night shift and did not extend to
the other departments.
Scarbrough and Spisak applied on August 26 to Iglauer to ascer-
tain if there was work for them. Both stated they had not known
of the resumption of the night shift until the middle of August.
Their testimony as regards this conference is at variance with that
of Iglauer's. They stated they asked him why they were not back
at work and he replied that they' ,had been too friendly with the
Union organizers. Their work was said to be satisfactory and he
had no complaint against them on that score. Iglauer testified that
they opened the meeting by asking why they had been fired. He
replied that their inefficiency and careless work had been the cause
and not their connection with the organizers as they supposed. His
secretary testified similarly. Scarbrough and Spisak had no further
meetings with the respondent. Scarbrough has not worked since
that time and has not earned any money.' Spisak commenced to
work for the Works Progress Administration on November 7 at the
rate of $12.00 a week.
As ,regards the efficiency of the two complainants, the record con-
tains a large amount of conflicting testimony. Both testified that
neither Iglauer nor Randolph, the superintendent, had complained
about their work in the past year. Collins, a machine fixer on the
night shift who had a status roughly equivalent to that of foreman
of the knitters, testified they were "good" workers. True, he in
effect testified, they at times performed poor work, but so did the
other men and these two were no different from the average in this
respect. He had never complained about them to Randolph or
Iglauer. Randolph testified that they both had once been "pretty
good" workers but that they had steadily become worse in the past
1 Scarbrough in July , August, September and October received relief from the Soldiers'
Relief Commission of Lorain County and the city of Elyria However , this was not work
relief and is therefore not considered.
97571-36-vol. 1-19
280 NATIONAL LABOR RELATIONS BOARD
year.' He had complained to Iglauer several times about their care-
less work. Both he and Iglauer testified to a number of isolated
petty infractions of working rules covering a period of over a year
of a nature that are committed by practically every worker-at one
time changing the yarn on the machine in violation of orders, leav-
ing the machine unattended, going out for a smoke, a practice appar-
ently indulged in by many of the workers on the night shift, and so
on. Many of these incidents seemed to have been assiduously culled
by Iglauer as ex post facto reasons for the discharges. More signifi-
cant, two of the employees whose duties consisted of inspecting the
work of the knitters testified in regard to the work of the complain-
ants. One stated that their work was "very bad" and that she
complained to Randolph "every night about it". The other stated
that their work was "terrible"-if a good batch came through she
thought "they were sick". The work had always been "terribly
mixed up" for two years and she had complained to Randolph and
Iglauer.
The respondent contends that the complainants were discharged on
June 14, 1935, and consequently were not its employees on and after
July 5, 1935, the date on which the National Labor Relations Act
became effective. Such a contention, even if sustained by the facts,
would not dispose of the case for aside from the matter of variance
with the complaint there would still remain the question of whether
the respondent had refused on August 26 and thereafter to employ
the complainants because of their union membership or activity.
Such a refusal to hire would be unlawful under Section 8, subdivi-
sion (3) of the Act. However the respondent's contention is not sup-
ported by the record since the evidence clearly points to a lay off
on June 14 and not a discharge. It is admitted that all of the other
employees on the night shift were laid off. If the respondent in-
tended to single out Scarbrough and Spisak from the others and to
discharge them it is reasonable to expect that it would have made
its intentions clear, especially since it was at that time free to dis-
charge them even for union activity. But, turning to the evidence,
we find that there is nothing to indicate that they were discharged.
Randolph, the superintendent, informed them as he informed others
on the night shift that they were being laid off because of a lack of
orders. Although he took the stand he did not contradict the testi-
mony of the complainants on this point. While contradiction exists
as regards the time and content of Iglauer's conversations with the
complainants at this period, the contradiction is here of no moment
since on his testimony everything that Iglauer said is more consistent
with a lay off than with a discharge. He did not once use the word
"discharge." Consequently, on these facts we find that the. com-
DECISIONS AND ORDERS 281
plamants were not discharged on June 14 but were merely laid off,
so that they continued to be employees of the respondent.
The respondent's contention thus being unsound the controlling
question in this case is whether the failure of the respondent to recall
the complainants to work when the night shift resumed operations
and .to reinstate them to active employment on August 26 when they
themselves applied was caused by their union membership or activity
and was therefore an unfair labor practice. The complainants were
among the leaders in the development of the Local formed at the
respondent's plant. They had attended the meeting of May 18. They
were active in the solicitation of members for the Local and had Ac-
companied the Union organizers on their visits to the homes of some
of respondent's employees. They held the offices of president and
vice-president in the Local. Most of this activity was known to the
respondent. So much for the character of the employees who have
been discharged. When we turn to the employer who discharged them
we find a company obviously possessed of a determined anti-union
hostility. Iglauer's speech of May 20 is unmistakable evidence of his
fear of union organization in the plant and thus of his antagonism
toward the Local which was beginning to take root. His first reaction
was to intimidate those who are assisting its growth and he expressed
it by immediately laying off the entire night shift. Distorted propa-
ganda was then placed before them in an effort to influence their
minds against the Local. These acts were not without some measure
of success for the Local ceased its organizing activities in order to
protect its members from possible loss of their jobs. However, Scar-
brough and Spisak still remained-but only for a while. For when
the lay off of their shift had ended they were not called back to work
and new men were given their jobs. When we consider the uniont
activity of the two men in conjunction with the anti-union hostility-
of the respondent, the inference is clear that the failure to recall
them, and later the failure to reinstate them despite direct request;
were due to their union membership and activity and the consequent
desire of the respondent to be rid of them in an effort to defeat union
organization within its plant.
The respondent claims that the inference is improper and that the
men were discharged, if not on June 14 at some later date, partly
for inefficiency and partly as a consequence of the institution of a new
policy for the night shift, the two reasons being related. We cannot
give credence to these claims in the light of the record before us.
These two men were considered good workers by their foreman. The
assertions of the respondent that their work was so "terrible" and "so
very bad" over a long period of time as to cause practically daily
complaint is simply incredible of belief when it is remembered that
0
282 NATIONAL LABOR RELATIONS BOARD
despite all this these men were retained for over two years. Nor is
the asserted change of policy convincing in itself. This change of
policy-new and inexperienced young men for old-was not appli-
cable to the entire night shift. Significantly, it was limited to the
knitters on that shift, or in other words, it was limited to Scarbrough
and Spisak. The most that can be said for the second claim is that it
is plausible and under other circumstances might be convincing. The
change of policy by itself and participated in by an employer who
had an open mind on the question of the organization of his em-
ployees would merely be a reasonable exercise of the function of
management. But that is not the case before us. "Motive is a per-
suasive interpreter of equivocal conduct" and the Board may thus
properly view the activities of the respondent in the light of the
manifest interest and purpose described above.2 So viewed, we feel
that the complainants were discharged in violation of the Act. Con-
sequently, in the exercise of the power conferred upon the Board in
.Section 10, subdivision (c) and to effectuate the policies of the Act,
we order their reinstatement with back pay from August 26, the date
,of their discharge.
CONCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW
Upon the record in the case, the stenographic transcript of the
hearing, and all the evidence, including oral testimony, documentary
and other evidence offered and received at the hearing, in addition
to the above findings of fact, the following concluding findings of fact
are made :
1. The respondent, Radiant Mills Company, is an Ohio corporation
which owns and operates at Elyria, Ohio, a plant for the manufacture,
distribution and sale of ladies' seamless hosiery. The respondent
normally employs about 85 employees on two shifts.
2. The respondent purchases and obtains 87.1% of the raw mate-
rials and other articles used in its manufacturing operations from
states other than the State of Ohio. Of the hosiery manufactured at
its plant, 82.8% is sold in states other than the State of Ohio, and
the remainder in the State of Ohio.
3. The operations of the respondent, as described above, constitute
a continuous flow of trade, traffic and commerce among the several
states.
4. The respondent, while engaged in the operations described above,
o on June 14, 1935, as part of a temporary lay off of the night shift, laid
off J. R. Scarbrough and George Spisak, knitters employed by it on
that shift.
2 Temas and New Orleans Ranlroad 'Co. ^v. 'Brotherhood of Railway & Steamship Clerks,
281 U S. 548 ( 1930).
DECISIONS AND ORDERS 283
5. • On August 26, 1935, the respondent, by L. B. Iglauer, its secre-
tary-treasurer and manager, refused to reinstate to employment and
discharged J. R. Scarbrough and George Spisak for the reason, indi-'
vidually, that each had joined and assisted a labor organization known
as American Federation of Hosiery Workers, Local No. 114.
6. By the discharges described in paragraph 5 the respondent has
interfered with, restrained and coerced its employees in the exercise,
of the rights guaranteed in Section 7 of the National Labor Relations
Act.
7. By the discharges described in paragraph 5 the respondent did
discriminate in regard to tenure of employment and has thereby dis-
couraged membership in the labor organization known as American
Federation of Hosiery Workers, Local No. 114.
8. The aforesaid acts of respondent occurred in the course and
current of commerce among the several states and immediately affect'
employees engaged in the course and current of such commerce.
• 9. Interference by employers with the activities of employees in
joining or assisting labor organizations leads and tends to lead to
labor disputes and other forms of industrial unrest which burden and
obstruct commerce among the several states and the free flow thereof.
Upon the basis of the foregoing the Board finds and concludes
as a matter of law :
(a) Respondent, by discharging J. R. Scarbrough and George,
Spisak as above set forth, and each of them, has engaged in and is
engaging in unfair labor practices affecting commerce within the
meaning of Section 8, subdivision (1) and Section 2, subdivisions
(6) and (7) of the National Labor Relations Act.
. (b) Respondent, by discouraging membership in the labor organi-
zation known as American Federation of Hosiery Workers, Local
No. 114 by discharging J. R. Scarbrough and George Spisak, and
each of them, said discharges constituting discrimination in regard
to tenure of employment, as above set forth, has engaged in and is
engaging in unfair labor practices within the meaning of Section 8,
subdivision (3) and Section 2, subdivisions (6) and (7) of the Na-
tional Labor Relations Act.
ORDER
On the basis of the findings of fact and conclusions of law and
pursuant to Section 10, subdivision (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, Radiant Mills Company, and its officers and agents,
shall :
1. Cease and desist (a) from discharging or threatening to dis
charge any of its employees for the reason that such employees have
X84 NATIONAL LABOR RELATIONS BOARD
joined or assisted American Federation of Hosiery Workers, Local
No. 114, and (b) from in any manner interfering with, restraining
or coercing its employees in the exercise of their rights to self or-
ganization, to form, join or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities, for the purpose of collective bargain-
ing or other mutual aid or protection, as guaranteed in Section 7 of
the National Labor Relations Act.
2. Take,the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to J. R. Scarbrough and George Spisak immediate and
full reinstatement, respectively, to their former positions, without
prejudice to any rights and privileges previously enjoyed;
(b) Make whole said J. R. Scarbrough and George Spisak for any
loss of pay they have suffered by reason of their discharge by pay-
ment, respectively, of a sum of money equal to that which each would
normally have earned as wages during the period from August 26,
1935 to the date of such offer of reinstatement, computed at the wage
rate each was paid immediately prior to June 14, 1935, less in the case
of, George Spisak the amount which he has earned subsequent to
August 26, 1935, as shown in the findings of fact;
(c) Post immediately notices to its employees in conspicuous places
throughout its plant stating (1) that the respondent will not dis-
-charge or in any manner discriminate against members of, or those
,desiring to become members of, American Federation of Hosiery
Workers, Local No. 114, or persons assisting said organization or.
engaging in union activity, and (2) that such notices will remain
posted for a period of at least thirty (30) consecutive days from the
date of posting.