Missouri Bag Co.

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