Riverside Manufacturing Co.

National Labor Relations Board - Board Decisions

Feb 12, 1940

20 N.L.R.B. 394 (N.L.R.B. 1940)

In. the Matter of RIVERSIDE MANUFACTURING COMPANY and AMALGAM-
ATED CLOTHING WORKERS -OF AMERICA
Cases Nos. C-995 and R-996-Decided February 12, 1940
Garment Manufacturing Industry-Interference , Restraint , and Coercion.-
anti-union statements ; participation by supervisory employees in campaign for
withdrawals from union ; circulation of loyalty petition in plant during working
hours-Unit Appropriate for Collective Bargaining: production and maintenance
employees exclusive of supervisory and clerical employees; no controversy as to-
Representatives : proof of choice : signed acceptances of membership and author-
izations to act as collective bargaining representative ; majority status of union
not affected by withdrawals caused by unfair labor practices of employer-
Collective Bargaining : dilatory and evasive tactics to discredit union under
pretext of deliberating acceptance of union's proposal of check of cards by repre-
sentative of Board or consent election to prove majority ; employer 's attempt
to destroy union majority and evade obligation to bargain with it; order to
bargain collectively based on majority at date of refusal to bargain-Unfair
Labor Practice : violation of Section 8 (1) as constituting violation of Sec-
tion 8 ( 5)-Discrimination : discharges , for union membership and activity;
charges of discrimination , not sustained as to three employees ; employer re-
sponsible for eviction of union employees ; refusal to grant protection to evicted
union employees if they returned to plant; discharges because of testimony at
hearing, found as to all but one of evicted employees ; charges of, not sustained
as to one employee-Reinstatement Ordered-Back Pay: awarded to discharged
and evicted employees-Remedial Order : special form of : employer ordered to
afford all its employees reasonable protection from physical assaults or threats
of physical violence in plant ; instruct all its employees that physical assaults
or threats of physical violence will not be permitted in plant-Investigation of
Representatives : petition for, dismissed in view of order to bargain.
Mr. Alexander E. Wilson, Jr., for the Board.
Mr. W. Gordon McKelvey, of Nashville, Tenn., and Mr. J. C. Gib-
son and Mr. Waldo DeLoache, of Moultrie, Ga., for the respondent.
Mr. Clyde M. Mills, of Atlanta, Ga., for the Union.
Mr. Albert J. Hoban, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On September 2, 1937, Amalgamated Clothing Workers of America,
herein called the Union, filed with the Regional Director for the Tenth
20 N. L . R. B., No. 38.
394
RIVERSIDE MANU'FACTURINICr- COMPANY 395,
Region (Atlanta, Georgia) charges alleging that Riverside Manu-
facturing Company, Moultrie, Georgia, herein called the respondent,
had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and Section 2 (6)•
and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. On September 15, 1937, the Union filed with said
Regional Director a petition alleging that a question affecting com-
merce had arisen concerning the representation of employees of the
respondent, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the Act. On June 29, 1938,
the National Labor Relations Board, herein called the Board, acting
pursuant to Section 9 (c) of the Act and Article III, Section 3, of
National Labor Relations Board Rules and Regulations-Series 1,
as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice. At the same time the Board, acting pursuant to
Article III, Section 10 (c) (2), and Article IT, Section 37 (b), of
said Rules and Regulations, ordered that the representation proceed-
ings and the proceedings with respect to the alleged unfair labor
practices be consolidated for the purposes of hearing. On July 30,
1938, upon amended charges duly filed by the Union, the Board, by the
Regional Director, issued its complaint alleging that the respondent
had engaged in and was engaging in unfair labor practices within
the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7)
of the Act.
With respect to the unfair labor practices the complaint alleged,
in substance, (1) that the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act; (2) that the respondent discharged and refused to
reinstate the following employees because of their membership in the
Union and because they engaged in concerted activities for the pur-
poses of collective bargaining: C. M. Bradley on January 12, 1938;
Frank Mercer on March 24, 1938; and Winona Hooks on June 3, 1938;
(3) that the respondent caused the termination of the services of
Annie Page, one of its employees, and refused to reinstate said Annie
Page and Emma Tuttle, another of its employees, because they joined
the Union and engaged in concerted activities for the purposes of
collective bargaining; (4) that on August 28, 1937, and at all times
thereafter, the respondent refused to bargain with the Union as the
representative of employees of the respondent in an appropriate unit,
although the Union had been designated as their representative by a
majority of such employees.
Copies of the complaint, the petition, and accompanying notices of
hearing were duly served upon the Union and the respondent. On
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 4, 1938, upon request of the respondent, the Regional Director
extended the time for filing an answer. On August 8, 1938, the re-
spondent filed its answer in which it denied that it had engaged in
the alleged unfair labor practices.
Pursuant to the notices, a hearing was held in Moultrie, Georgia,
from August 8 to 16, 1938, before Gustaf B. Erickson, the Trial
Examiner duly designated by the Board. The Board and the re-
spondent 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..
At the beginning of the hearing the respondent moved to dismiss the
complaint on the ground that the Board lacked jurisdiction in the
matter. The Trial Examiner reserved his ruling on the motion. Dur-
ing the first day of the hearing, E. C. Long, M. V. McHargue, and
-L. E. Watkins, employees of the respondent, filed a petition to inter-
vene in the proceedings. The Trial Examiner dismissed the petition
and his ruling is hereby affirmed. At the close of the hearing, counsel
-for the respondent renewed its motion to dismiss and made other
motions on which the Trial Examiner reserved ruling. Thereafter
the respondent duly filed a brief which was considered by the Trial
Examiner. During the course of the hearing, from August 8 to 16,
1938, the Trial, Examiner made numerous rulings on other motions
and on objections to the admission of evidence. The Board has re-
viewed the rulings of the Trial Examiner and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
On October 19, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties, in which
he denied the motions of the respondent on which he had reserved
ruling, except the motion to dismiss the complaint in so far as it
alleged that the respondent had engaged in unfair labor practices
.within the meaning of Section 8 (3) of the Act with respect to Annie
Page and Emma Tuttle. His rulings are hereby affirmed. He found
that the respondent had engaged in and was engaging in unfair labor
practices within the meaning of Section 8 (1), (3), and (5) and
Section 2 (6) and (7) of the Act, and accordingly recommended that
the respondent cease and desist from such unfair labor practices, that
it reinstate with back pay C. M. Bradley, Frank Mercer, and Winona
Hooks, and that, upon request, it bargain collectively with the Union
as the exclusive representative of the respondent's employees in the
.unit found to be appropriate. He also recommended that the com-
plaint be dismissed as to Annie Page and Emma Tuttle. On Novem-
ber 4, 1938, the respondent filed exceptions to the Intermediate Report
'together with a request for oral argument. Notices of hearing before
the Board for the purposes of oral argument were issued on November
RIVERS'ID'E MANUF'ACTURING COMPANY 397
21, 1938, and duly served upon the parties. On December 14, 1938,.
the hearing was postponed indefinitely.
On December 17, 1938, the Union, pursuant to Section 10 (b) of_
the Act, filed a fifth amended charge. On January 10, 1939,- the
Board authorized the issuance by the Regional Director of all amend-
ment to the complaint issued on July 30, 1938,' and,, pursuant to
Article II, Section. 38 (c), of said Rules and Regulations-Series 1, as,
amended, ordered the record in the proceedings reopened and a.
further hearing held for the purposes of taking further evidence per-
taining to the new matter alleged in the amended charge., On Jan-
uary 14, 1939, the Board, by the Regional Director, issued its amend
ment to complaint alleging that the respondent had engaged in and
was engaging in unfair labor practices within the meaning of Section
8 .(1), (3), and (4) and Section 2 (6) and (7) of the Act. With
respect to the unfair labor practices the amendment to complaint
alleged in substance that on or about October 26, 1938, the respond-
ent urged its lion-union employees to evict all union employees from
the plant; that Irene Richards, Thelma Hancock, Mecie Childs 2
Mae Rentz, Eunice Ellis, Maggie Price, Lela Hodges, Flora Wilson,
and Cora McMullin, employees of the respondent, were thus evicted;
and that the respondent on or about said date discharged and at all
times thereafter refused to reinstate the afore-mentioned employees
because they had joined and assisted the Union and engaged in con-
certed activities for the purposes of collective bargaining and because
they had testified before the Trial Examiner during the hearing held.
from August 8 to 16, 1938.
On. January 23, 1939, the respondent filed its answer in which it
denied that it had engaged in the unfair labor practices alleged in
the amendment to complaint. During the hearing the respondent
filed an amendment to its answer. -
Pursuant to notices duly served upon the parties, a further hear-
ing was held in Moultrie, Georgia, from February 20 to 23, 1939,
before Thomas S. Wilson, the Trial Examiner duly designated by
the Board: The, Board and the respondent were represented 'by
counsel, participated in the hearing, and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to.
introduce evidence bearing on the issues. At the conclusion of the.
Board's case the respondent moved to dismiss the amendment to com-
plaint.- The Trial Examiner denied the motion. At the close of the
i On December 20, 1938 , the Regional Director issued an amended complaint to which the
respondent duly filed its answer . In its order of January 10, 1939, the Board authorized
the Regional Director to withdraw the amended' complaint. On January 13, 1939, acting
pursuant to said order, the Regional Director withdrew the,amended complaint. _
a Mrs . Mecie Childs was married ' while the proceedings were pending . In the record of
the first hearing and in the amendment to complaint she is referred to as Mecie Mercer.
398 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
hearing the respondent renewed its motion to dismiss and the Trial.
Examiner reserved his ruling. In his Intermediate Report the Trial
Examiner denied the motion. On April 1, 1939, the respondent
duly filed a brief which was considered by the Trial Examiner. The
Board has reviewed the rulings of the Trial Examiner on other
motions and on objections, to the. admission. of evidence made during.
the second hearing, including the rulings made in his Intermediate
Report, and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
On June 3, 1939, the Trial Examiner filed his Intermediate Report
in which he found that the respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (1), (3), and (4) and Section 2 (6) and (7) of the
Act, and recommended that the respondent cease and desist from
said unfair labor practices and reinstate with back pay the employees
named in the amendment to complaint.
Thereafter, on July 15, 1939, the .respondent filed exceptions to the
Intermediate Report and on July 29, 1939, a brief in support of its
exceptions. Pursuant to notice served upon the respondent and the
Union, a hearing was held before the Board in Washington, D. C.,
on August 31, 1939, for the purpose of oral argument. The respond-
ent did not appear but the Union was represented and participated in
the argument.
The Board has considered the exceptions to both Intermediate
Reports and, in so far as they are inconsistent with the findings, con-
clusions, and order set forth below, finds them 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
Riverside Manufacturing Company, a Georgia corporation, main-
tains its principal office and place of business in Moultrie, Georgia.
It is engaged in the manufacture, sale,,and distribution of pants,
shirts, overalls, coats, and caps. Approximately 30 per cent of the
raw materials used by the respondent, which consist principally of
cotton fabrics, thread, and buttons, are. procured from sources outside
the State of Georgia. The value of the products manufactured an-
nually by the respondent is approximately $460,000, of which 80
per cent are sold and shipped to customers located outside the State
of Georgia.
The respondent employs approximately 112 persons and has a
monthly pay roll of approximately $8,000.
RIVERSIDE 1VIAIc UFACTURIN(I .COMPANY
r ;,). . II. THE ORGANIZATION INVOLVED
399
Amalgamated Clothing Workers of America is a labor organization
affiliated with the Textile Workers Organizing Committee, herein
called the T. W. O. C.,3 and with the Committee for Industrial Or-
ganization . . It admits to membership, the production and the main-
tenance employees of the respondent, exclusive of clerical and
supervisory employees.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; the refusal to bargain
1. The appropriate unit
The Union, in its petition, alleges that the production and mainte-
nance employees of the respondent, exclusive of clerical and super-
visory employees, constitute a unit appropriate for the purposes of
collective bargaining. The respondent raised no objection to the
appropriateness of this unit.
We find that the production and maintenance employees of the
respondent, exclusive of supervisory and clerical employees, constitute
a unit appropriate for the purposes of collective bargaining and that
said unit insures to employees of the respondent the full benefit of their
right to self-organization and to collective bargaining and otherwise
effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
The respondent's pay roll for the week ending August 28, 1937, con-
tains the names of 104 employees. At the hearing, a copy of this pay
roll, with the names of 14 supervisory and clerical employees marked,
was supplied by the respondent and introduced in evidence by the
Board. Thus, as of August 28, 1937, there were 90 employees in the
appropriate unit. Between June 28, 1937, and August 24, 1937, 53
cards, in the form of acceptances of membership in the Union and
authorizations for the Union to act as collective bargaining representa-
tive, were signed by employees within the appropriate unit whose
names appeared on the respondent's. pay roll on the afore-mentioned
date. The genuineness of the signatures was supported by testimony
and was further attested by the fact that from September 4, 1937, to
March 30, 1938, 43 of these employees wrote letters of withdrawal from
3In February 1937, the Amalgamated Clothing Workers of America, the International
Ladies' Garment Workers' Union, and the United Textile Workers of America set up an
organizing committee, known as the Textile Workers Organizing Committee, which under-
took the organization of employees • engaged in the textile and garment industries. In
their testimony the witnesses made no distinction between the "T. W. O. C." and the
"Union ." The terms "Union" and "T. W. O. C." are used interchangeably herein.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union , in which almost all requested the return of their cards.
Several of these employees testified at the hearing that their with-
drawals were not attributable to the respondent 's conduct . For reasons
discussed below in Section III A 4, and in "The remedy ;" we find that
these withdrawals cannot operate to diminish the 'majority status
previously obtained by the Union.
We find that on August 28 , 1937 , and at all times thereafter, the
Union was the duly designated representative of a majority of the
employees in the appropriate unit, and, pursuant to Section 9 (a) of
the Act, was the exclusive representative of all the employees in such
unit for, the purposes of collective bargaining in respect to rates of
pay, wages , hours of employment , and other conditions of employment.
3. History
Early in June 1937 , several employees of the respondent conferred
with one Carter , a representative of the American Federation of Labor
then engaged in organizing meat workers in the vicinity of Moultrie;
Georgia, concerning membership in that organization . Carter ar-
ranged for an open meeting of the respondent 's employees to be held
in the Moultrie City Hall. At the suggestion of H. A. Hutchins,.
factory manager , a committee of interested employees informed W. J.
Vereen, the respondent 's president , of their plans. Vereen told the
committee that 'he would be glad to talk to Carter.
On the morning following the meeting , over which Frank Mercer,
a cutter, presided and at which American Federation of Labor mem-
bership application cards were distributed , Carter visited Vereen and
after a general discussion concerning labor organizations promised
to send Frank Walsh, an organizer of the United Garment Workers,. to
Moultrie . Carter had no further meetings with the respondent's em-
ployees. In August , Carter returned to Moultrie with Walsh and
discussed collective bargaining with Vereen . There is no evidence
that Walsh met with the respondent 's employees on this or any later
occasion.
About June 20, 1937 , Alton Lawrence, a representative of the.
T. W. O. C ., visited the respondent 's plant and discussed union or-
ganization with a few employees , including Frank Mercer. On June
28, 1937 , several employees signed T. W. O. C. authorization cards.
Thereafter , meetings were held in the homes of interested employees.
By August 24, 1938, cards designating the T. W. O. C. as bargaining
representative had been signed by 53 employees.
About August 28, 1937, upon the request of the Union ,. Vereen ,met
with Alton Lawrence and F . E. Daniels, representatives of the Union,
for the purpose of collective bargaining. After 2 hours of general
discussion ,•the conference was adjourned .until the following morning..
RIVERSIDE MANUFACTURING COMPANY 401
At the second meeting, which was held in Vereen's office, Daniels
stated that the Union represented a majority of the respondent's
employees and requested recognition. Vereen replied that some of
his employees wanted to be represented by the American Federation
^of Labor. He asked for proof that the Union represented a majority.
Various methods of determining the question were suggested. Vereen
requested a check of the authorization cards by his secretary, by the
mayor of Moultrie, or by a certified public accountant. The Union
insisted upon a check of cards by a representative of the Board or an
election by secret ballot. The meeting concluded with the understand-
eing that .Vereen was to consult his attorney concerning a consent
election and Daniels was to discuss the entire matter with an official
of 'the Committee for' Industrial Organization at Atlanta, Georgia.
Daniels was to communicate with Vereen at a later date and receive
the latter's decision.
At the close of the working day on September 1, 1937, a few days
after the Union's request for recognition, Hutchins, who knew. of the
-request, spoke to the operators on the suit line about the Union.
Concerning Hutchins' remarks, Annie Carlton, an employee, testified
as follows :
Well, I could riot remember all he said, but he 'did say that he
guessed he had been asleep on the job and he felt like he was
probably responsible for all of us being in the plant and he didn't
feel like we would be better off if we got the Union in there,
because if anything come up we would never be able to get a man
down to our hearing; it was a small place, and he had been nice
to all of us, and he felt like some of us had stabbed him in the
back by doing things and not coming to him first; and said if
there was anything going wrong in the plant, we should have
come to him first and explained ourselves; if we were not satisfied
with the way things were, we should have gone to him, and he
also said that he had in mind to present to Mr. Vereen, to ask him
for a raise for us, but now, since things were as they were he
didn't feel like he had the heart to approach him for a raise at
the present time; and he also went onto state that he had been
planning on some new figments. in there, for instance, for one to
fix the ladies'. bathroom up nicer and all, and he went on to ex-
plain how the plant had grown-which was true-and that he felt
like we had all been a band of happy workers and he wanted us to
continue that way-that is as near as I can come to the statement.
Carlton's testimony was substantially corroborated by other em-
ployees who testified with respect to Hutchins' speech. Upon the
basis of the record, particularly in view of the findings of the Trial
Examiner , who had an opportunity to observe the demeanor of the
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witnesses, we cannot accept Hutchins' explanation that H61-called the
meeting because of "confusion" and "talk" in the plant. Nor can
we credit his denial that he made anti-union statements to the em-
ployees. There was testimony that Hutchins told the employees
they were free to join the Union. We attach no weight, however, to
this testimony.' We find that Hutchins made the statements attrib-
uted to him by Carlton.
On or about September 8, Hutchins, at a meeting in his office
attended by supervisory and non-union employees,, announced that
the raise he had discussed in his talk to the suit line was being granted
by the respondent and would be retroactively effective as of 'the
preceding pay day, August 31, 1938.
Sometime after this meeting in Hutchins' office, Loy Watkins,
Magnus McHargue, and other employees of the respondent decided
to consult an attorney. Several employees testified that they had
heard rumors in the plant that it was illegal to oppose the Union.
Others wanted to withdraw from the Union. There is evidence that
some of the employees who were in favor of the Union had given
warning that it would soon obtain a closed-shop agreement with the
respondent and thereafter raise initiation fees. McHargue, a stock-
room employee, selected J. C. Gibson, a Moultrie attorney, and made
arrangements with Gibson for a meeting in the latter's office.
McHargue invited Hutchins to this meeting because he did not want
Hutchins to think that the employees "were doing anything behind
his back." Another employee invited Vereen. Gibson read and ex-
plained the Act to the group of about 30 persons including the
respondent's employees. Vereen spoke and assured the employees
that they were free to work in the plant whether they joined a union
or not. The employees were charged no fees for Gibson's services,
or for the use of his office.
The following day the employees who had- been present in Gibson's
office began an active campaign to defeat the Union. They visited
employees who had signed membership cards and induced them to
withdraw. Belle Hiers, supervisor of the pants line, Paul Stremmer,
head cutter, and Virgie Mosley, timekeeper and chief clerical assist-
ant to Hutchins, were among those active in soliciting withdrawals.
Flora Wilson testified that Hiers urged her to obtain her card and
declared that the Union originated in Russia and was out to overthrow
the Government. Maggie Price testified that Hiers visited her and
told her that Hutchins was opposed to the Union. According to her
4 See Blanton Company and United Oleomargarine Workers Local Industrial Union No.
459, in which the Board said : "The respondent contends that it continually reminded the
employees of their freedom to join a union if they so desired . Such statements, however,
when accompanied by threats of reprisals , as here, do not nullify the coercive effect of the
respondent 's activities."
RIVERSIDE MANUFACTURING GOIIIPANY 403
own,.testimony, Hiers visited the homes of employees on three occa-
sions in an effort to correct an impression which was current that
she had joined the Union. She explained, "I didn't make any state-
ments against the union, except I said I was not signing up with it.
I just had-I was against the union; I was not signing up with it."
In view of all the testimony in the record concerning her activities
during these visits we cannot credit her testimony that she restricted
-herself to assuring the employees that she had not become a member
of the Union. On the contrary, we find that Hiers urged the em-
ployees to withdraw from the Union. Mosley told Mae Rentz, an
employee, that there was a raise in the office for the employees when
they should "squash" the Union.
Between September 4 and October 12, 1937, 41 employees wrote
letters of withdrawal to the Union. These letters, many of which
were introduced in evidence, were strikingly similar as to phraseology
and content. With few exceptions, they stated that the writer no
longer wished to be a member of. the Union and desired the return
of his membership, card.
At about the same time the employees who were conducting the
.drive for 'membership withdrawals from the Union arranged a bar-
becue for employees who had indicated that they were not members
of the Union. Stripplin Kelly, supervisor of the suit line, invited
employees in the plant to the barbecue and explained to them that it
-was,only for non-union, employees. He. also solicited donations from
the employees to defray the expenses of the barbecue and, according
'to his own testimony, contributed to the fund. Mattie Mae Mae-
Father, "a clerk in the office, obtained signatures on a petition pledging
loyalty to the respondent. At the barbecue, William B. Jones, an
employee, read aloud the names of the employees who had signed
the paper which was described by Vereen as "expressing confidence
in the company, and possibly saying they did not want to affiliate
with the union, or something to that effect." Hutchins and Vereen
were both present at the barbecue and the latter gave a talk in which
he thanked the employees for their loyalty.
The respondent contended that Hutchins was the only supervisory
employee for whose activities it was responsible under the Act. The
.contention is based mainly on the fact that Hutchins is the only
person at the plant who has authority to hire and discharge. Belle
Hiers, 'Verdie Watkins, and Stripplin Kelly are supervisors of the
plant, shirt, and suit. lines, respectively. They check the. operators
in. their respective lines when they report or leave the plant, instruct
them as to the work they are, to do, and criticize and correct the work
:.when completed. They are. in complete charge of the work of the
`employees in' their lines. It is clear from ,the testimony of the em-
ployees and the supervisors themselves that Belle Hiers, Verdie Wat-
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
•kins, and Stripplin Kelly act as the representatives of management
in the daily affairs of the plant and are the persons to whom the em=
ployees customarily look to learn the desires of the management.
Paul Stremmer testified that he is the foreman of the cutting room
and that, although he has the "privilege" of disciplining the cutters,
he has not exercised it. Stremmer exercises general supervision
over the cutters similar to that of the supervisors of the operating
lines. During the hearing there was introduced in the record the
pay roll of August 28, 1937, from which the respondent had stricken.. -
the names of supervisory and clerical employees. It is significant
that among the names so stricken were Belle Hiers, Verdie Watkins,
Stripplin Kelly, and Paul Stremmer.5
We find that Hiers, Watkins, Kelly, and Stremmer are supervisory
employees for whose actions the respondent is responsible.'
4. Conclusions
We are satisfied frorn the foregoing facts that the respondent delib-
erately pursued a policy designed to discourage its employees from
remaining members of the Union in order to relieve itself of its
obligation to bargain collectively with the organization which had
been selected by a majority of them as their representative. Assured
by Lawrence and Daniels that the Union was ready and willing to
participate in a consent election for the purpose of proving that it
represented a majority of its employees, the respondent, under the
pretext of deliberating whether it would accept this method of deter-
mination, delayed collective bargaining while it initiated its campaign
of discouragement. Within a few days Hutchins addressed the em-
ployees on the suit line and told of his disappointment in learning
5 The fact that Stremmer engaged in activities on behalf of the American Federation of
Labor and Kelly assisted the Union in the early stages of its campaign to organize the
employees , does not absolve the respondent from responsibility for their subsequent acts
of interference . As tie pointed out in Matter of Ward Baking Company and Committee for
Industrial Organization et at ., 8 N. L. R. B. 558 , "A corporate employer necessarily acts
through and must be held responsible for the acts of its supervisory employees. Where
such employees actively interfere with . . . (a) labor organizations . . . the employer
itself must be deemed to have engaged in . such interference . . See-Matter of Chicago
Apparatus Company and Federation of Architects , Engineers , Chemists and Technicians,
Local 107; 12 N. L . R. B. 1002.
0 See Matter - of American Manufacturing Company; Company Union of the American
Manufacturing Company ; the Collective Bargaining Committee of the Brooklyn Plant of
the American Manufacturing Company and Textile Workers Organizing Committee, C. I. 0.,
5 N. L. R. B. 443, enforced , as modified ( modification did not affect this portion of the
Board ' s decision ), in National Labor Relations Board v. American Manufacturing Company
and Nu-Art Employees, Inc., 106 Fed . ( 2d) 61 (C. C. A. 2, 1939 ) ; Matter of Planters
Manufacturing Company, Inc . and United Veneer Box and Barrel Workers Union, C. I. 0.,
10 N. L. R. B. 735, enforced in National Labor Relations Board V. Planters Manufacturing
Company, Inc., 105 Fed. (2d ) 750 (C. C. A. 4, 1939), citing Virginia Ferry Corporation Y.
National Labor Relations Board, 101 Fed. (2d ) 103, and National Labor Relations Board
v. A. S. Abell Co ., 97 Fed. ( 2d) 951; Matter of Tennessee Copper Company and A. F. of
L. Federal Union No. 21164, 8 N. L. R. B . 575; 9 N. L. R. B. 117.
RIVERSIDE ' MANUFACTURING COMPANY 405
that they had joined the Union. He expressed the fear that because
of their action the respondent might withhold a contemplated raise in
wages. Soon after he had acquainted them with the respondent's dis-
pleasure, Hutchins demonstrated the leniency of the respondent by
announcing that the raise which had-been placed in jeopardy by their
disloyal conduct would be granted and made retroactively effective.
Besides: discouraging membership, the raise, because of the time and
circumstances under which it was granted, had the further effect of
discrediting the Union which had unsuccessfully attempted to bargain
with the respondent. The subsequent split in the ranks of the Union,
followed by the campaign for withdrawals by several employees in-
cluding former members of the Union,. was obviously due mainly to
the respondent's unlawful conduct. Kelly's solicitation of donations
to defray the expenses of the barbecue for non-union employees and
the circulation of the loyalty petition in the plant, followed by Vereen's
participation in the barbecue, was, under the circumstances, a clear
endorsement of the acts of those,employees who had opposed the
Union.
The respondent cannot disclaim responsibility for .the, withdrawals
on the. ground that some of the employees had been misled by the
statements of union sympathizers and withdrew. upon learning that
it would not, be necessary for them to join the Union in order to retain
their jobs. Several employees testified that they withdrew when they
discovered they did not have to join the Union. Lawrence, the repre-
sentative of the T. W. 0. C., testified that these employees stated to
him, or in his presence, about `the time of their withdrawal that they
were being urged to resign by the respondent. The letters of • with-
drawal make no mention of misrepresentation by the Union... Under
the circumstances we do not credit the testimony of these employees
as to their reason for withdrawing. It is clear that the respondent's
manifestations of, hostility were the major cause of the withdrawals.'
We find that the respondent, by the above-described activities of its
supervisory employees in discouraging membership in the Union, by
the time and manner of granting the wage increase after threatening
to withhold it, and by the encouragement of and direct participation
in the campaign to secure the withdrawal of memberships in the Union,
has interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act..
Furthermore, the above-described conduct of the respondent con-
stituted a direct refusal to bargain collectively with the Union. As
we have found above, on August 28, 1937, the Union represented a
7 National Labor Relations Board v. Remington Rand. Inc .. 94 F. (2d) 862 (C. C. A. 2).
aff'g Matter of Remington Rand. Inc . and Remington Rand Joint Protective Board of the
District Council office Equipment Worlers, 2 N. L.' R. B. 626.
283031-41-vol. 20-27
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority of the respondent 's employees in the appropriate unit. We
have also found that the withdrawals from the Union which fol-
lowed the request to bargain and the testimony of several employees
as to their reasons for withdrawing did not affect the Union's ma-
jority. We have repeatedly held that the unfair labor practices of
an employer cannot operate to change the bargaining representative
previously selected by the untrammelled will of the majority.8 With
respect to the effect of the respondent 's conduct following , the request
to bargain , our opinion in Matter of Chicago Apparatus Company
and Federation of Architects, Engineers , Chemi8ts and Technicians,
Local 107 ,9 is equally applicable here :
The duty of an employer to bargain collectively arises only if a
request therefor is made by a labor organization that meets the
requirements of Section 9 (a). Where a labor organization rep-
resenting a majority of employees in an appropriate unit seeks
to bargain collectively ; an employer 's attempt to destroy such
majority and thus to relieve himself of his obligations under
Section 8 (5) of the Act is as patently a refusal to bargain
within the meaning of Section 8 (5) as a forthright refusal to
meet with representatives of a labor organization clothed with
the right to exclusive recognition . We need not decide whether
under other circumstances an employer 's activities which clearly
infringe upon his employees ' rights and constitute unfair, labor
practices within the meaning of other subdivisions of ''Section 8
of the Act also constitute ' an unfair labor practice within the
meaning of Section 8 ( 5). It is obvious , however, that under
the circumstances present in the instant case, to find" that the
respondent 's conduct in posting its "statement of policy" con-
stituted an unfair labor practice only under Section 8 (1) of
the Act would nullify Section 8 (5). So to restrict our finding
"would be to hold that the obligation 'of one provision of the
Act may be evaded by the successful violation of"another." The
respondent , in seeking to destroy the majority status of the
Union, immediately following the Union's request to bargain
and its asserted intention to invoke the services of the Board in
demonstrating its majority, plainly showed that' it' was solely
interested in avoiding its obligation to bargain with 'the Union.
In the present case the conduct of the respondent after receiving
the request for bargaining rights impels us to the conclusion that the
'Matter o f American Numbering Machine Company and International Association of
Machinists, District #5, 10 N. L. R. B. 536; Matter of George P. Piling cE Son Co. and
Dental, Surgical ct Allied Workers Local Industrial Union No. 119, affiliated with the C. r. 0.,
16 N. L. R. B. 650; New Era Die Company and International Association of Machinists'
Lodge 243 (A. F. of L.), 19 N. L. R. B. 227.
e 12 N. L. R. B. 1002.
RIVERSIDE MANUFACTURING COMPANY 407
respondent never intended to bargain collectively with the Union and
merely utilized an asserted doubt regarding the Union's status as
majority representative to evade its duty to bargain collectively.
Furthermore, the conduct of the respondent in granting the wage
increase was, under the circumstances set forth above, a violation of
its obligation to bargain with the Union. We have held that when
an employer unilaterally grants concessions to his employees, at a time
when their designated union is attempting to bargain concerning the
same subject matter, such action constitutes a violation of the em-
ployer's duty to bargain with the accredited union."' While it is true
that the Union had made no formal demands for a wage increase in
the instant case, the principle is nevertheless applicable. The blow to
the Union's prestige is equally severe, and the demonstration that so
far as.the respondent is concerned collective bargaining is neither de-
sirable nor necessary is just as impressive, whether the respondent first
ascertains the demands of the Union or, as here, forestalls proof of
majority-'arid, anticipating what the, demands of the Union shall be,
makes a unilateral concession.
. 'The respondent .contends that on August 28, 1937, the question of
whether the Union represented a majority of the employees was not
determined, and that at no time since has the Union made any further
request for recognition. However, as set forth above, the respondent
by its unlawful conduct has made questionable the Union's ability
to prove its majority by a consent election. Under the circumstances
the reluctance of the Union to, test its strength without the full pro-
tection of the Act was not unreasonable. Our reasoning with 'respect
to the inability of an•employer to evade his obligation under one provi-
sion of the Act by the. successful violation of another applies with
equal force to the contention that, after the unlawful conduct of the
respondent had resulted in wholesale withdrawals, the Union was
obliged again to demand recognition and submit new proof of
majority."'
We find that about August 28, 1937, and thereafter, the respondent
refused to bargain collectively with the Union as the exclusive repre-
sentative of its employees in an appropriate unit, and that the respond-
ent has thereby interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
B. The discharges prior to August 1988
C. M. Bradley, a cutter, was hired by the respondent in 1925 and,
except for a period of approximately 2 years, was employed continu-
10 Matter of Chicago Apparatus Company and Federation of Architects , Engineer.,.
Chemists and Technicians, Local 107. 12 N. L. R. B. 1002.
u Footnote 10 supra.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ously until his discharge on January 12, 1938. Bradley was one of the
first of the respondent's employees to join the Union and solicited other
employees to sign membership cards. Early in September 1937; he
told Hutchins that he was a member of the Union. While withdrawals
from the new organization were being sought in the fall of 1937,
Bradley and Frank Mercer visited the homes of many employees who
had signed' cards and urged them to remain faithful to the Union.
Notwithstanding their efforts, Bradley and Mercer were the only male
employees in the plant who had not withdrawn from the Union by
October 25, 1937.
The respondent in its answer alleges substantially that Bradley was
discharged when, after it had been reliably reported that he was
suffering from a venereal disease, Bradley refused to submit to a
medical examination before returning to work in the plant. The
answer further alleges that Bradley had used obscene and offensive
language in the presence of female employees in. the plant, had been
insubordinate and disrespectful, and had threatened violence to the
respondent's officers and employees.
On January 12, 1938, Vereen drove Bradley to his office at the Moul-
trie Cotton Mills and informed him that some of Bradley's fellow
employees had complained that Bradley was affected with a venereal
disease and had demanded his discharge. Vereen told Bradley that
he would have to be examined by Dr. Brannen, a physician retained
by the respondent. While it is clear that Bradley agreed to be ex-
amined by Brannen provided he was also examined by his own physi-
cian, and that Vereen found such an arrangement satisfactory, there
is a conflict in the testimony of the two participants as to what oc-
curred during the remainder of the interview. According to Vereen,
Bradley changed his mind and refused to be examined. According to
Bradley, Vereen informed him that, irrespective of the outcome of the
examination, he would have to "lay out" several weeks to satisfy the
other employees and avoid hard feelings. Because of our finding
set forth below that Bradley was not discharged for refusing to submit
to an examination, it is unnecessary for us to resolve the conflict in
testimony.
During the evening of January 12,, Bradley was examined by Dr.
J. M. Palmer. He immediately telephoned Vereen and told him that
he had a "statement" from the doctor, but Vereen refused to discuss
allowing Bradley to return to work.
The following day, after reporting for work at the plant and being
told to leave by Hutchins, Bradley submitted to an examination by
Dr. Brannen, who thereafter reported to Vereen that the test dis-
closed no active infection. Later Brannen made a second examination
which confirmed the first. Vereen testified that this second examina-
RIVERSIDE MANUFACTURING 0 01YIPANY 409
tion was "very likely" made at his request . Despite the reports of
Dr. Brannen , Vereen, when . asked by Mercer to reinstate Bradley,
refused. While we do not entirely credit Vereen's version of the
interview of January 12, particularly with respect to Bradley 's sudden
change of position , we are convinced that even if he had refused to be
examined on January 12, Bradley was not discharged for that reason.
The subsequent refusal of the respondent to reinstate Bradley while
evincing a striking interest in whether he was actively infected, in
the light of the respondent 's hostility to the Union; leads us to con=
elude that the. -respondent seized upon the incident of January 12 to
rid itself of one of the most active union members and thereafter
sought to bolster its excuse by obtaining conclusive evidence that
Bradley was infected with a communicable disease, the nature of
which would bar his reinstatement . The respondent 's refusal to re-
turn Bradley to the plant and ' quell the suspicions of his accusers
after it had been informed by its own physician that Bradley was
not actively infected , as they had alleged, flatly contradicts Vereen's
assertion that he desired to help Bradley. We find that Bradley
was not discharged because he refused to submit to a medical
examination.
During the hearing there was some testimony that Bradley had
used indecent language in the presence of female employees . Bradley
testified that he never knowingly used such language in the presence
of ladies , and Hutchins was unable to recall ever having brought the
conduct to Bradley's attention .. The testimony of Vereen that he
mentioned complaints based on such conduct . to' Bradley on January
42, 1938, was contradicted by Bradley . Furthermore , there is evi-
dence that Loy Watkins , the most active opponent of the Union, used
profanity in the presence of female employees and was not disciplined.
There is testimony that during his employment by the respondent
Bradley sometimes criticized and ridiculed Hutchins to other em-
ployees. Magnus McHargue , one of the group opposed to the Union,
testified that Bradley on one occasion , after engaging in a dispute
with another employee over a newspaper , requested the loan of a
shotgun . According to McHargue , Bradley said that he might be
able to use the gun that same day because Hutchins had his girl in
the office . McHargue testified that he reported the incident to
Hutchins . Bradley denied making the statements attributed, to him
and -testified that he did not state to McHargue that he would take
his shotgun "down to the plant and clean up the whole business."
Hutchins testified that he had received complaints concerning Brad-
ley's conduct from the time he first came to work until the date of
his discharge . The respondent 's failure to discipline Bradley for his
allegedly long-standing misconduct until he became active in the
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union leads us to infer that this purported reason for Bradley's dis-
missal was a mere pretext engaged in to conceal the fact that he was
discharged because of his union activities. On the basis of the record,
we cannot accept the contention of the respondent that the use of
improper language, acts of insubordination and disrespect, or threats
of violence were factors which caused the respondent to discharge
Bradley.
The cause of Bradley's discharge may be found in his union activ-
ity. Except for Mercer, who was subsequently removed by the re-
spondent, Bradley was the outstanding union member. His position
as a leader in an organization so distasteful to the respondent was
made known to Hutchins at an early date. When, as a result of the
respondent's unlawful conduct, the employees were withdrawing from
the Union, Bradley and Mercer were urging them to remain members.
Although their efforts were unavailing to stem the tide of resigna-
tions, Bradley and Mercer, together with approximately eight others,
refused to withdraw from the Union. It was this uncompromising
attitude of Bradley, in the face of the respondent's hostility, which
was the cause for his discharge. The unfounded complaint of his
fellow employees merely furnished the occasion for which the respond-
ent had been waiting.
We find that the respondent has discriminated in regard to the
hire and tenure of employment of C. M. Bradley, thereby discouraging
membership in the Union and interfering with, restraining, and co-
ercing its employees in the exercise of the rights guaranteed them
in Section 7 of the Act.
At the time of his discharge Bradley's earnings were approximately
$17.50 for the normal 40-hour week. Up to the date of the first hearing
he had earned approximately $100 since his discharge and desired to
be reinstated.
Frank Mercar, a cutter, was employed by the respondent in 1925
and worked almost continuously until March 24, 1938. He received
higher wages than any other employee in the cutting department, with
the exception of Stremmer, the foreman. Mercer was the most active
member of the Union in the plant. He presided at the American
Federation of Labor meeting early in June 1937. Later that same
month, Mercer joined the Union and arranged for meetings of em-
ployees. When Vereen announced that Carter and Walsh had been
to see him, Mercer told Vereen that the employees were no longer
interested in the American Federation of Labor. From December
1937 to the date of his discharge,. Mercer acted as shop committeeman
and met with Vereen to discuss grievances on behalf of the Union.
He 'and Bradley were the only male employees who continued their
membership in the Union after October 25, 1937. Winona Hooks, one
RIVERSIDE MANUFACTURING COMPANY 411
of the complainants, testified that a short time after Bradley's dis-
charge Hutchins inquired of her whether Mercer was still interested
in the Union. Being told that.Mercer intended to remain with the
Union, Hutchins, according to Hooks, advised her that Mercer or
anyone else "could stick their neck out far enough and they would
chop it.off." Hutchins generally denied making any anti-union state-
ments. In view of Hutchins' anti-union speeches and his hostility to
the Union as described in subsection A above, we do not credit his
denial and we find that he made the statement ascribed to him by
Hooks.
Cutters at the respondent's plant are required to place size tickets
on the individual pieces and bundles of material which they cut. The
size on the bundle ticket must correspond to the size on the cut pieces
because the tickets serve as guides for the operators who sew together
the different parts which make up the complete garment. The evi-
dence establishes that the cutters commonly make errors in placing
tickets on the bundles and that they rectify the errors when discov-
ered by-the operators.
On March 24, 1938, Ruby Flowers, an operator on the pants line,
discovered that the size on the ticket of the bundle on which she was
working did not correspond to the size on the pants in the bundle.
Flowers told another employee on the line, who, finding that her own
bundle was incorrectly ticketed, reported. the mistake to Hiers, her
supervisor. Hiers in turn reported the error to Stremmer, the cutter
foreman, and he identified the, work as that of Mercer. When Mercer
was shown his mistake he suggested.to Hiers that the operators run
through the bundles which were not mixed and he would return from
the cutting- room and straighten out the eight mismarked bundles
which contained approximately 10 dozen pairs of pants. While Hiers
was examining some of the bundles at the pants line, Hutchins came
up to her and inquired about the trouble. Hiers explained that there
was-a- mix-up. ' Hutchins immediately went into the cutting room
and, after summoning Stremmer, told Mercer to bring the whole
"cut," 12 which consisted of approximately 70 dozen pairs of pants,
from the sewing room back into the cutting room for the purpose
of correcting the error. Mercer agreed and arranged to have Hiers
notify him when she had the bundles ready. Hutchins returned to
his office. A short time later, Hiers signaled that the bundles were
prepared, and Mercer went into the sewing room and began to sepa-
rate the tickets at a table on which some of the bundles had been
placed. Hutchins, who was passing through, asked Mercer why he
12 In referring to the material which Mercer had cut and which was in the sewing depart-
ment when the mix-up was discovered. the witnesses used "cut" and "lay" interchangeably.
For the purposes of these findings it is not necessary to distinguish between the two items.
Accordingly , "cut" and "lay" will be used interchangeably.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not carrying all the bundles into the cutting room as he had been
instructed to do. Mercer explained that he- could straighten out the
tickets at the table. Without further discussion, Hutchins, ordered
Mercer to return to the cutting room. Witnesses for the respondent,
who were present in the cutting room at the time, testified that
Hutchins repeated his instructions and told Mercer he must, either
take back the whole "cut" or check out. They testified that Mercer
said that he would not do it and left the plant. On the other hand,
Mercer testified that when the superintendent told Stremmer that he
had refused to carry out the order, he (Mercer) said, "No, I haven't
refused," that Hutchins thereupon told him not to argue and in-
structed.Stremmer to "check him out." We need not, however, resolve
the conflict in testimony. We are satisfied that even if Mercer refused
to carry out the order, such refusal was not the real reason for his
discharge.
Thereafter, Mercer conferred with Vereen several times in an
effort to obtain reinstatement to, his job in the plant. Vereen sug-
gested that he talk to Hutchins, but the latter refused to put him
back to work.
Ordinarily, when there is a mix-up of the type caused by Mercer,
the cutter involved is notified and straightens out the bundles in the
sewing room. Stremmer straightened out the mistake after Mercer
left, but Hiers, who watched him, could not recall whether he found
it necessary to bring the entire: lay into the cutting room to do so.
We do not believe that Mercer, an experienced cutter who had been
with the respondent for approximately 13 years, was discharged and
refused reinstatement because on one occasion he refused to'obey an
order of the superintendent with respect to the precise manner in
which he should correct a common error. It should be noted that
Stremmer, Mercer's immediate superior, was apparently satisfied
with the manner in which Mercer had' proceeded to correct the error.
Assuming that Mercer in fact disobeyed Hutchins' order, the trivi-
ality of the entire incident cannot explain the severity of the disci-
pline which Hutchins imposed .1-3 We are of the opinion that the
respondent seized upon an incident which ordinarily would not
require the attention of the superintendent and utilized it for the
purpose of eliminating the outstanding survivor of the campaign
against the Union.
We find that the respondent has discriminated in regard to the
hire and tenure of employment of Frank Mercer, thereby discour-
aging membership in the Union and interfering with, restraining,
13 Compare the respondent ' s exercise of its disciplinary ' power here and its refusal to
exercise such power in connection with the eviction of union members discussed in section
II below.
RIVERSIDE MANUFACTURING GOMPANY 413
and coercing its employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
At the time of his discharge Mercer was earning $23.80 per 40-hour
week. Between his discharge and the date of the first hearing he
had earned approximately $10, and desires reinstatement.
Winona Hooks, a seaming-machine operator on the suit line, worked
for the respondent from February 1935 until June 3, 1938. She
joined the Union in July 1937. During the early activities of the
Union she lived with Mecie Childs, in whose home several meetings
were held. * Hooks testified that she withdrew from the Union in
October 1937 at the insistence of Kelly, her supervisor. She rejoined
on February 2, 1938.
. The respondent, in its answer, alleged in substance that Hooks left
her work about April 22, 1938, without notifying Hutchins; that
Hutchins thereupon made other arrangements with respect to her
work; and that when she again reported, production at the plant
had been so curtailed that she could not be reemployed.
On a Thursday in late March or early April 1938, Hooks learned
that her mother was ill. There was no work on Friday or Saturday,
and Hooks, expecting to return to work on the following Monday,
left the plant. However, finding that her mother would be in need
of assistance for an indefinite period, Hooks sent word to Hutchins
that she would have to remain at home. Hooks entrusted the mes-
sage to another employee, who delivered it to Hutchins early the
following week. The record establishes that this was the method
commonly used by employees to give notice that they intended to be
absent from work. On April 27, 1938, Hooks wrote to Hutchins
informing him that she did not know how long her mother's illness
would last and asking him to let her know whether he could keep
her job open for her. On May .6, Hutchins replied that he could
i;iake no definite promises due to "the gloomy business outlook." On
June, 3, 1938, after receiving no reply to a second letter written on
May 12, Hooks applied at the plant and was told by Kelly to come
to work on June 8, 1938. When she arrived, Kelly instructed her
to see Hutchins, who informed her that there would be no work for
her until business increased. It is clear from the record that the
business of the* respondent decreased substantially in the spring., and
summer of 1938.
While we do not believe that Hooks failed to give proper notice
of her absence, in view of the decrease in production and the long
period of her absence, we are of the opinion that the refusal to
reinstate her was not discriminatory.
We find that the allegations of the complaint with respect to
Winona"Hooks are not sustained by the evidence.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Annie Page was hired by the respondent as an inspector of suits
in January 1937. After 5 weeks she was transferred to a joining
machine. Page joined the Union on July' 26, 1937, but at Kelly's
insistence resigned from the Union on October 9. There is no evidence
that Page ever rejoined the Union.
During October, Page left work to take care of her son, who was ill.
For a brief period after her return Page worked as an inspector.
Thereafter, Hutchins assigned her to -a lettering machine, one of the.
highest paid operations in the plant. After 6 weeks of attempting to
learn the operation, Page asked for a transfer to inspecting work.
There was no opening available. - With Hutchins' assistance, Page
obtained part-time employment at another plant.
We find that the allegations of the. complaint with respect to Annie
Page are not sustained by the evidence.
Emma Tuttle, a machine operator, was hired by the respondent in
October 1936 and worked until December 11, 1937. She joined the
Union on July 23, 1937. Tuttle was one of the' few employees.-who
did not withdraw from the Union despite the open hostility of
Hutchins and the other supervisory employees.
The respondent's answer alleged, in substance, that Tuttle had volun-
tarily left its employ in December 1937 for a period of approximately
6 months, and that during her absence she was replaced.
The record shows that about December 8, 1937, Tuttle left the plant
for about 6 months to attend her mother, who was ill in Florida. A
few days before she left, Vereen told Mercer that he was confident
that there would be a place for Tuttle when she was able to return.
Tuttle wrote to Hutchins on May 24 and June 1, 1938, stating that
she was ready to go to work and reminding him of Vereen's statement
to Mercer. On June 18, 1938, Hutchins informed-her that because
production had been considerably curtailed, he could not employ her
at that time. He promised that he would put her to work when
business conditions warranted. Tuttle had been replaced during her
6 months' absence.
We find that the allegations of the complaint with respect to Emma
Tuttle are not sustained by the evidence.
C. The unfair labor practices from August 16,1938, to January 14,1939
1. The evictions
As set forth above, the amendment to complaint issued by the Re-
gional Director on January 14, 1939, alleges in substance that the
respondent caused the eviction from its plant of, discharged, and
refused to reinstate Thelma Hancock, Eunice Ellis, Cora-McMullin,
Maggie Price, Mae Rentz, Lela Hodges, Irene Richards, Flora Wilson,
RIVERSIDE itA UFAC'TUR.I G COMPANY 415
and Mecie Childs because of their membership in the Union and
because they testified at the hearing held from August 8 to 16, 1938.
Mecie Childs was subpenaed but did not testify at the first hearing.
The other employees named were subpenaed and testified on behalf
of the Board. The respondent contends that it is in no way responsible
for the eviction of the employees named in the amendment to complaint
and denies that it discharged or, refuses to reinstate them.
From the conclusion of the hearing to October 26, 1938, the non-
union employees were permitted continuously to scoff at and deride
the union members in the plant. Hiers and Kelly were aware of the
breach in discipline but made no effort to stop it. Shortly after the
first hearing, Flora Wilson complained to Hutchins about the "booing"
by the non-union employees. However, Hutchins took no action until
he actually observed the improper conduct himself. Although he
instructed the non-union employees to stop molesting the union mem-
bers,' the disturbances continued.
On October 19, 1938, the Trial Examiner issued his Intermediate
Report, in which he recommended that the respondent reinstate C. M.
Bradley, Frank Mercer, and Winona Hooks, and upon request bar-
gain collectively with the Union. The Intermediate Report was
received by the respondent on October 25, 1938. On October 26, 1938,
during the lunch hour, which extends from 12 noon until 1 p. in.,
some of the non-union employees brought into the plant and circu-
lated a newspaper containing a news item summarizing the Interme-
diate Report. After lunch the employees stood in groups discussing
the article. A few minutes before 1 p. m., Hiers, Verdie Watkins,
and Kelly, the supervisors, checked in the operators at their respec-
tive lines and promptly withdrew from the operating room. Hiers
left for the rest room to dress a sore foot. Kelly and Verdie Watkins,
the latter after she had turned on the power, entered different sec-
tions of the stockroom. Hutchins had left the plant earlier. The
record does not indicate the whereabouts of Stremmer. In the office
at the time were Mosley, McFather, and Nance, clerical employees.
After the power was turned on, a group of employees in the rear
of the room called the other non-union employees from their ma-
chines, leaving only the union members working. At 1:15 p. in.,
Loy Watkins, the plant machinist and husband of Verdie Watkins,
turned off the power, an act he had never done before without specific
instructions from Hutchins. Leo Mercer, a cutter, then addressed
the non-union employees. He asked them whether they were willing
to work- with the employees whom the Trial Examiner had recom-
mended should be reinstated or were in favor of putting the remain-
ing union members out of the plant. When they indicated that they
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
favored the second course of action, Mercer led them to the front of
the operating room, where the women in the group ordered the union
members, consisting of Thelma Hancock, Cora McMullin, Eunice
Ellis, Maggie Price, Mae Rentz , Irene Richards, and Flora Wilson,
to leave the plant or be ejected with violence. The union members
left the plant peacefully. At one point during the eviction Kelly
appeared at the door of the stockroom and asked what the "commo-
tion" was about. According to Kelly, several of the operators said,
"If you don't get back in there and keep your mouth shut you will
find out right quick." Kelly thereupon decided to remain inside the
stockroom. Hiers, when told what was happening, remained in the
rest room because she "did not want to get in it." Verdie Watkins
observed part of the eviction but, according to her testimony, was
afraid to leave the stockroom. As soon as the union members were
outside the plant, Loy Watkins turned on the power and operations
were resumed by both non-union and supervisory employees.
Virgie Mosley reported the eviction to Hutchins, who in turn
notified Vereen. After a conference with Hutchins and the respond-
ent's attorney, Gibson, Vereen returned to the plant and addressed
the non-union employees. He told them that he was sorry that the
eviction had occurred, and requested that the group permit the union
employees to return. He then asked for a show of hands of those who
favored taking back the employees who had been evicted. Receiving
no response, he asked how many were not in favor of taking them
back. All hands were raised. Vereen continued to plead with the
employees to take back the union members. Finally, it was arranged
that Loy Watkins should talk to the non-union employees individually
and give Vereen a final decision the following day.
On October 27,1938, Mecie Childs and Lela Hodges, union members
who had not worked on October 26, reported for work. The non-
union employees would not permit them to enter the plant. Late in
the afternoon Loy Watkins reported to Vereen that he had polled the
non-union employees and that they would not alter their decision.
Thereafter, Vereen held several conferences with the union members
and their representative and discussed the danger involved in rein-
stating them. Vereen maintained throughout the conferences that he
was at all times willing to reinstate the union employees but that he
could not induce the non-union group to permit their return. How-
ever, he refused to take steps to insure their safety. None of the'
evicted employees returned to work. The employees who took pos-
session of the plant on ;October 26, and whose names were given to.
Vereen by the union employees, were never disciplined for their `part
in the eviction or for the threats made to Kelly.
RIVERSIDE MANUFACTURING COMPANY 417
2. Conclusions with respect to the unfair labor practices from August
16, 1938, to January 14, 1939
We have already observed the respondent's hostility to the Union
and the activities of its supervisory employees in coercing union mem-
bers to resign from the Union. The evictions of the union employees
must be considered in the light of the respondent's acts of opposition
to the growth of the Union and the effect of these acts upon the
employees.
When the members of the Union, all but one of whom had testified
against the respondent, returned to the plant they were subjected to
derision and ridicule by the. anti-union faction. The anti-union cam-
paign carried on by the non-union employees, as described in Section
,.E 1 above, followed by the reluctance of Hutchins and the other
supervisory employees to restore normal order in the plant, amounted
to an open invitation to the anti-union employees to take further steps
toward. the final elimination of the Union and its sympathizers. It
is clear that the shutting off of the power in the respondent's plant
on October 26,' 1938, and the eviction and exclusion of the union mem-
-bers were a direct result of the respondent's unlawful conduct in
encouraging the anti-union group. Under the circumstances the
respondent cannot disclaim responsibility for the ouster on the ground
th^t-it was planned and carried out by its employees.l"
lWhen the respondent was notified of the evictions, there rested
upon it an, affirmative duty to, reinstate the union, employees and
safeguard them from assaults or threats by the non-union em-
ployees.15/That duty was not discharged by Vereen's poll of senti-
ment and his plea to the employees who had usurped the respond-
ent's control over the plant. In striking contrast to the respondent's
.treatment of Bradley and Mercer, described in Section III B above,
.is the fact that during the entire course of events none of the em-
14 See Clover Fork Coal Co . v. National Labor Relations Board, 97 F . ( 2d) 331 (C. C. A.
6), enforcing Matter o f Clover Fork Coal Company and District 19, United Mine Workers
of America, 4 N. L. R. B. 202, in which the Court said : "The contention that employees
were not discharged because of union activities by the petitioner , but were forced out by
the determined attitude of petitioner 's non-union men in refusing to work with members
of the United Mine Workers, must be rejected in view of evidence which supports findings
that the attitude of the petitioner's non-union men was, if not inspired by, at least en-
couraged and promoted by the petitioner and its agents ." See also Matter of General
Motors and Deleo-Remy Corporation and International Union, United Automobile Workers
of America , Local No. 146 , 14 N. L. R. B. 113. Cf. N . L. R. B. v . Asheville Hosiery Com-
pany, 108 F . ( 2d) 288 (C. C. A. 4), mod'g and enf'g Matter of Asheville Hosiery Company
and American Federation of Hosiery Workers, 11 N. L. R. B. 1365 , in which the Court
found that the employer 's responsibility for a similar eviction of union employees by non-
union employees was not shown by substantial evidence.
11 See Matter of General Shoe Corp. and Georgia Federation of Labor, 5 N. L. R. B. 1005,
consent order enforced in National Labor Relations Board v. General Shoe Corp., 99 F.
(2d) 223 (C. C. A. 5) ; Matter of General Motors and . Deleo -Remy Corporation and Inter-
national Union, United Automobile Workers of America, Local No . 146, 14 N. L . R. B. 113.
Cf. Matter of Asheville Hosiery Company , cit., supra, in which the employer reinstated the
evicted employees.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees who had participated in the evictions were discharged or
even disciplined for their unlawful conduct and their persistence in
refusing to permit the reinstatement of the union employees. Vereen
testified that he adopted a course of conciliation, persuasion, and
reasoning rather than the alternative of discharging the employees'
who had engaged in the evictions, because he believed that if he
discharged any members of the group, all non-union employees would
have refused to work and would have left the plant. The record
does not convince us that such disciplinary action would have pro-
voked a strike of non-union employees. However, even if such
danger existed, the respondent would not be excused from its duty to
protect its employees in the plant and to maintain safe working con-
ditions for them.16 In Matter of General Motors and Delco-Remy
Corporation and International Union, United Automobile Workers
of America, Local No. 146,17 wherein the respondent sought to ex-
cuse its failure to take disciplinary action on the ground that such
action would have provoked retaliatory rioting, we stated : " .. .
even if such fears were justifiable under the circumstances, since the
conduct and the anti-United feeling of the evicting employees had
been incited and fostered to a large degree by acts and omissions of
the respondent, the respondent cannot excuse its admitted failure to
safeguard its employees because of any helplessness before a `loyal-
employee' revolt whose alleged overwhelming power resulted from
respondent's own policies." The language is equally applicable here.
By its conduct in condoning the eviction of the union employees
through its failure to discipline non-union employees and its refusal
to afford -the union employees adequate protection during working
hours, the respondent in effect adopted a closed shop, limiting em-
ployment to those who were not members of the Union. It is ob-
vious that such closed-shop effect was not the result of collective
bargaining but rather the effect of the respondent's unfair; labor
practices.
Between October 26, 1937, and the date of the second hearing,
Vereen, on several occasions, offered to allow the union members to
return to the plant but would not insure their safety."' In the ab-
10 Hutchins testified that on October 28, 1938 , Duncan Warr , a Field Examiner attached
to the Tenth Regional Office, suggested that , in view of the danger existing at the time,
the union employees should not be immediately reinstated in a body but should be returned
to the plant in pairs . The respondent contends that the suggestion of Warr estops the
Board from finding that the respondent should have Immediately reinstated all the em-
ployees who had been evicted. It is clear from the record that the suggestion of Warr
was in the nature of an offer of settlement and does not affect the power of the Board to
find that the respondent did not discharge its duty toward the evicted employees.
17 14 N. L. R. B. 113.
11 During the hearing the respondent filed an amendment to its answer in which it
averred that it was willing to have the evicted employees return to the plant. There was
no offer, however , to insure the safety of said employees if they returned . Indeed, the
respondent admits in its brief that it has always been unsafe for the union employees to
return to the plant.
RIVERS'IDE MANUFACTURING COMPANY 419
sence of some guarantee of protection the employees were justified in
not returning . They had not left the respondent 's employ upon their
own volition . On the contrary , their loss of employment was directly
attributable to the respondent 's acts in encouraging and inspiring the
evictions and in failing in its duty to afford full protection to the
.ousted employees.
We find that the unlawful conduct of the respondent was the
direct cause of the exclusion from the plant of Thelma Hancock,
Cora McMullin, Lela Hodges, Eunice Ellis, Maggie Price, Mae Rentz,
Irene Richards , Flora Wilson, and Mecie Childs . We find that the
respondent has thus discriminated in regard to the hire and tenure
.of their employment and has thereby discouraged , membership in
• the Union and has interfered with, restrained , and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act. We further find upon the basis of the entire record that the
respondent by its unlawful acts had discriminated against Thelma
Hancock, Cora McMullin, Lela Hodges, Eunice Ellis, Maggie Price,
Mae Rentz , Irene Richards , and Flora Wilson, because they gave
testimony under the Act.
,IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities ` of- the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate , and substantial
relation to trade, traffic , and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices , we shall order it to cease and desist therefrom. We
shall also order the respondent to 'take certain affirmative action
which we deem necessary to effectuate the policies of the Act.
Having found that the Union represented a majority of the em-
ployees in the appropriate unit on the date of the . respondcnt 's refusal
• to bargain collectively ; our Order will provide that the respondent,
upon request , bargain collectively with the Union as the exclusive
representative of the employees within the appropriate unit. We
have found that certain employees wrote letters of withdrawal to
the Union . These withdrawals were occasioned by the respondent's
unfair labor practices ., It will be the purpose of our Order to restore
the status quo by giving effect to the Union's majority existing on
the date of the refusal to bargain collectively . A failure to order
the respondent to bargain collectively , upon request , with the Union
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
`would be to hold that the obligation of one provision of the Act
may be evaded by the successful violation of another; that the freely
expressed wishes of the majority of the employees may be flaunted.
if the employer brings to bear sufficient interference, restraint, and
coercion to undermine the representative's majority support." 19
Since we have found that the respondent has discriminatorily dis-
charged C. M. Bradley and Frank Mercer, and, by its .discriminatory
acts, has brought about the termination of the employment of Thelma
Hancock, Cora McMullin, Lela Hodges, Eunice Ellis, Maggie Price,
Mae Rentz, Irene Richards, Flora Wilson, and Mecie Childs, we shall
order the respondent to offer to these employees full reinstatement
to their former or substantially equivalent positions, and to make
each of them whole for any loss he or'she may have suffered by
reason of such discrimination by payment to each of them of a sum
equal to the amount which he or she normally would have earned as
wages from the date of the termination of his or her employment
to the date of the offer of reinstatement, less his or her net earnings 20,
during said period.
Having found that the respondent has unlawfully failed to safe-
guard the union employees from assaults and threats by its non-union
employees, we will order the respondent to provide for the reasonable
protection of the employees reinstated, and for all its employees iii the
plant, from physical assaults or threats of physical violence directed
at discouraging membership in, or activities on behalf of, the Union or
any other labor organization, and to instruct all its employees that
physical assaults or threats of physical violence directed at discourag-
ing membership in, or activities on behalf of, the Union or any other
labor organization will not be permitted.
VI. THE PETITION
In view. of the findings in Section III A 1 above, as to .the . appro-
priate-unit and the designation of the Union as the exclusive repre-
sentative of the respondent's employees in the appropriate unit, it is
'° Matter of Missouri, Kansas ' Oklahoma Coach Lines and International Association
of Machinists et at ., 9 N. L. R. B. 597.
20,13y "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and ẁorking else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America , Lumber and Sawmill Workers Union, Local 2,590, 8 N. L. R. B. 440. Monies re-
ceived for work performed upon Federal , State, county , municipal , or other work -relief
projects are not considered as earnings , but, as provided below in the Order, shall be de-
ducted from the sum due the employee , and the amount thereof shall be paid over to the
appropriate fiscal agency of the Federal, State, county , municipal , or other government or
governments which supplied the funds for said work -relief projects.
C
RIVE'RS'IDE MANUFACTURING C'OM'PANY 421
'not necessary to consider the petition for certification of representa-
tives. Consequently,' the petition for certification will be dismissed.
Upon the basis.of the above findings of fact and upon the entire
'record in the case, the Board makes the following:
CONCLusIONS OF LAW
1. Amalgamated Clothing Workers of America is a labor organiza-
tion, within the meaning of Section 2 (5) of the Act.
-2. The production and maintenance employees of the respondent,
exclusive of supervisory and clerical employees, constitute a unit ap-
propriate for the purposes of collective bargaining, within the mean-
ing of Section 9 (b) of the Act.
3. Amalgamated Clothing Workers of America is and has been at
all times since about August 28, 1937, the exclusive representative of all
the employees in such unit for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with Amalgamated Clothing
Workers of America as the exclusive representative of its employees
in the appropriate unit, the respondent has engaged in and is engag-
ing in unfair labor practices, within the meaning of Section 8 (5)
of the Act.
5. By discriminating in regard to the hire and tenure of employ-
ment of C. M. Bradley and Frank Mercer, by its conduct in causing
employees. to oust and exclude from the plant, and by its refusal to of-
fer unconditional reinstatement and guarantee protection to Thelma
Hancock, Cora McMullin, Lela Hodges; Eunice Ellis, Maggie Price,
Mae Rentz, Irene Richards, Flora Wilson, and Mecie Childs and
thereby discouraging membership in Amalgamated Clothing Workers
of America, the respondent has engaged in'and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
6.:By its conduct in causing employees to oust and exclude from
the plant, and by its refusal to offer unconditional reinstatement.and
guarantee protection to Thelma Hancock, Cora McMullin, Lela
Hodges, Eunice Ellis, Maggie Price, Mae Rentz, Irene Richards,
and Flora Wilson, the respondent has discriminated against them
because they have given testimony under the Act, and has thereby
engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (4) of the Act.
7. By interfering with, restraining, and coercing its employees
in the exercise of their rights guaranteed by Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
283031-41-vvo 1. 20-28
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. The respondent has not engaged in unfair labor practices , within
the meaning of Section 8 (3) of the Act , with respect to the discharge
of Winona Hooks, Annie Page, and Emma Tuttle.
10. The respondent has not engaged in unfair labor , practices,
within the meaning of Section 8 (4) of the Act, with respect to Mecie
Childs.
ORDER
Upon the basis of the foregoing findings of 'fact and conclusions
,of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
respondent, Riverside Manufacturing Company, and its officers,
agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Clothing
Workers of America as the exclusive representative of all its produc-
tion and maintenance employees, exclusive of supervisory and clerical
employees;
(b) Discouraging membership in Amalgamated Clothing Workers
of America, or any other labor organization of its employees, by
discharging or refusing to reemploy any of its employees, or.denying
them protection at their work or in any other manner discriminating
in regard to their hire or tenure of employment, or any term or condi-
tion of their employment;
(c) Discriminating against any of its employees for giving testi-
mony under the National Labor Relations Act;
(d) Permitting threats of physical violence to employees in its
plant for the purpose of discouraging membership in or activities on
behalf of the Amalgamated Clothing Workers of America;
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, 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 bargaining, or other
mutual aid and 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) Upon request, bargain collectively with Amalgamated Cloth-
ing Workers of America as the exclusive representative of its
production and maintenance employees, exclusive of supervisory and
clerical employees ;
(b) Offer to C. M. Bradley, Frank Mercer, Thelma Hancock, Cora
McMullin, Lela Hodges, Eunice Ellis, Maggie Price, Mae Rentz,
RIVERSIDE' MANUFACTURING 00NI'PANY 423
Irene Richards, Flora Wilson, and Mecie Childs immediate and full
reinstatement to the positions formerly held by them or positions
substantially equivalent thereto, without prejudice to their seniority
or other rights and, privileges, and insure them full and adequate
protection while they are in the employ of the respondent;
(c) Make whole C. M. Bradley, Frank Mercer, Thelma Hancock,
Cora McMullin, Lela Hodges, Eunice Ellis, Maggie Price, Mae Rentz,
Irene Richards, Flora Wilson, and Mecie Childs for any loss of pay
they may have suffered by reason of the respondent's acts by payment
to each of them of a sum of money equal to that which each would
normally have earned as wages during the period from the date of
the termination of employment of each to the date of the respondent's
offer to reinstate, less the net earnings 21 of each during that period;
deducting, however, from the amount otherwise due to each of the
said employees monies received by said employee during said period
for work performed upon Federal, State, county, municipal, or other
work-relief projects, and pay over the amount so deducted to the
appropriate fiscal agency of the Federal, State, county, municipal,
or other government or governments which supplied the funds for
said work-relief projects;
(d) Afford all its employees reasonable protection in the plant at
all times from physical assaults or threats of physical violence
directed at discouraging membership in, or activities on behalf of,
Amalgamated Clothing Workers of America, or any other labor
organization;
(e) Instruct all its employees that physical assaults or threats of
physical violence directed at discouraging membership in, or activi-
ties on behalf of, Amalgamated Clothing Workers of America, or
any other labor organization, will not be permitted in the plant at
any time, and take effective action to enforce this rule;
(f) Immediately post notices to all its employees in conspicuous
places in and about its plant and maintain said notices for a period
of at least sixty (60) consecutive days, stating (1) that the respondent
will cease and desist in the manner set forth in paragraph 1 (a),
(b), (c), (d), and (e) of this Order; (2) that the respondent will
take the affirmative action required in paragraph 2 (a), (b), (c),
(d), and (e) of this Order; and (3) that the respondent's employees
are free to become or remain members of the Amalgamated Clothing
Workers of America, and that the respondent will not discriminate
against any employee because of membership or activity in that
organization ;
21 See footnote 20, supra.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent, by discharging
Winona Hooks, 'Annie Page, and Emma Tuttle, has engaged in
unfair labor practices within the meaning of Section 8 (3) of the
Act, and that by refusing to reinstate and afford protection to Mecie
Childs the respondent has engaged in unfair labor practices within
the meaning of Section 8 (4) of the Act.
AND IT IS FURTHER ORDERED that the petition for investigation and
certification of representatives filed by Amalgamated Clothing
Workers of America be, and it hereby is, dismissed.