The Baer & Wilde Co.

In the Matter of THE BAER & WILDE CO., and SWANK PRODUCTS, INC. and INTERNATIONAL JEWELRY WORKERS' UNION, .LOCAL-,1 8 Case No. C-388.-Decided October 19, 1938 Jewelry YLannfactaiiny hidrtstry-IntciIcicnec, Restraint, and Coercimi- -Company-Donminated Union: domination of and interference with formation; support: disestablished , as agency for collective bargainingDisctiniination -charges of , not sustained-Unfair Labor Practices: complaint dismissed; as to one respondent, for lack of jurisdiction Mr. Bernard J. Donoghue, for the Board. Hinckley, Allen, Tillinghast c6 Wheeler, by Mr. Chauncey E. Wheeler, and Mr. IIa'ro7d A. And'retas, of Providence, R. I., for the respondents. Mr. Clarence A. Barnes, of Boston, Mass., for the Association. Mr. William F. Guffey, Jr., of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Charges and amended charges having been filed by International Jewelry Workers'. Union, Local 18, herein called the Union, the National Labor. Relations Board, herein called the Board, by A. Howard Myers, Regional Director for the First Region (Boston, Massachusetts), issued and duly served its complaint dated Decem- ber 1, 1937, against The Baer & Wilde Co. and Swank Products, Inc., both of Attleboro, Massachusetts, herein called the respondents, -alleging that the respondents had engaged in and were engaging in unfair labor -practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Na- tional Labor Relations Act, 49 Stat. 449, herein called the Act., As to the unfair labor practices, the complaint as amended at the hear- ing alleged in substance: (1) that the respondents had interfered, with ^ and, were interfering with their employees in the exercise of their rights to self-organization; (2) that the respondents had domi- nated, interfered with, and fostered the formation and administra- 9 N. L R. B., No. 37 420 DECISIONS AND ORDERS 421 tion of Swank Products Employees Association, herein called the Association; a labor organization of their employees; and (3) that the respondent, Swank Products, Inc., by the discharge of Helen Robillard on or about June 10, 1937, and by its refusal to give her employment on November 29, 1937, upon the termination of her sick leave, had discriminated in regard to her hire and tenure of 'employment, thereby discouraging membership in the Union. On December 3, 1937, the respondents filed a motion to extend the time to answer the complaint. This motion was denied by the Re- gional Director. 'Thereupon the respondents filed their respective answers each of which, as amended at the hearing, denied that they had engaged in the unfair labor practices alleged in the complaint. In addition the respondents set forth separate defenses, The Baer A Wilde Co. -averring that it transacts no business and, maint airs its corporate charter solely for the purpose of goodwill, and Swank Products, Inc. averring that its business has no substantial relation to interstate commerce, and that Helen Robillard was not discharged, but was temporarily laid off solely because of a business depression. Swank Products, Iiic., also filed with the Regional Director a "Mo- tion for Election," requesting the Board forthwith to conduct an election among its employees for the determination of their collective bargaining representative and to postpone the hearing on the com- plaint until after such election. This motion was not acted upon by the Regional Director, but was disposed of by the Trial Examiner as hereinafter set forth. Pursuant to notice duly served upon the respondents, the Union, and the Association, a hearing on the complaint was held at Attle- boro, Massachusetts, from December 2 to December 15, 19371 before Samuel F. Jaffee, the Trial Examiner duly designated by the Board. The respondents and the Board \were represented by counsel, par- ticipated in the hearing,- and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues. At the beginning of the hearing counsel for the Association filed its petition to intervene and moved that an election be held among the respondents' employees, pending the outcome of which, the hearing be adjourned. The Trial Examiner granted the petition but denied the motion. Counsel for the Association then moved for a continu- ance in order to complete a previous engagement in a State court. This motion was likewise denied. He thereupon entered his appear- ance of record but was absent during most of the hearing. At the close of the'Board's case, both respondents moved to dismiss the com- plaint on the grounds that the Board was without jurisdiction and that the evidence did ' not substantiate the allegations of the com- plaint. At the close of the hearing this motion was allowed as,to 422 NATIONAL LABOR RELATIONS BOARD The Baer & Wilde Co. and denied as to Swank Products, Inc. At the close of the hearing the respondents', motion, for election was denied. On January 20, 1938, the Trial Examiner filed his Intermediate Report in which he found that Swank Products, Inc., hereinafter called Swank, had engaged in and was engaging in the unfair labor practices alleged in the complaint, except that it did not discriminate against Robillard by refusing to give her employment on November 29, 1937. He accordingly recommended that Swank cease and desist from engaging in such unfair labor practices, that it cease giving recognition to and that it disestablish the Association as collective bargaining representative for any of its employees, and that it rein- state Helen Robillard with back pay from June 11 to July 22, 1937. Thereafter, Swank and the Association filed exceptions to the Intermediate Report and to various rulings of the Trial Examiner. Pursuant to notice duly served on all the parties, a hearing for the purpose of oral argument was had before the Board in Washington, D. C., on March 3, 1938. Swank and the Union appeared; the Asso- ciation filed a brief. The Board has reviewed the rulings of the Trial Examiner on motions and on objections to the admission of evidence and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has also considered the exceptions to the Intermediate Report and to the rulings of the Trial Examiner and hereby sustains those exceptions of Swank to the Trial Ex- aminer's finding that Robillard was discriminatorily discharged. In all other respects the Board finds the exceptions of both Swank and the Association to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF SWANK The respondent, Swank Products, Inc., is a Delaware corporation, authorized- and licensed to do business in Massachusetts . It is en- gaged in the manufacture, sale, and distribution of jewelry , particu, larly tie clips, tie chains , and cuff links. It operates its only plant for the manufacture of these products in Attleboro, Massachusetts, and maintains sales offices throughout the United States. The raw mate- rials used by Swank consists chiefly of gold, silver , copper, and other metals . More than 50 per cent of such raw materials are shipped to Swank's plant from points outside Massachusetts . From December 1, 1936, to December 1, 1937, the cash value of the jewelry manufac- tured and sold by Swank , together with the novelties which it pur- chased and resold, amounted to $2,570,069 .54, 95 per cent of which was shipped to points outside Massachusetts. DECTSION5 AND ORDERS 423 At the time of the hearing, Swank employed approximately 350 person s. II. THE ORGANIZATIONS INVOLVED International Jewelry Workers' Union, Local 18, is a labor organi- sation affiliated with the American Federation of Labor, admitting to membership employees of the jewelry manufacturers of ,Attleboro, including the employees of Swank. Swank Products Employees Association is an unaffiliated- labor organization, admitting to membership all employees of Swank ex- cept foremen and executives. The Association's membership is limited to employees of Swank. III. THE UNFAIR LABOR PRACTICES A. Interference with -the f ormation ,and administration of the Association During 1936 and the spring of 1937, the Union had been active in organizing the jewelry workers in Attleboro and neighboring cities. Except for the tool makers employed by Swank, who had joined a tool makers' union affiliated with the American Federation of Labor, Swank's employees remained unorganized. The evidence shows, how- ever, that by the spring of 1937, some of Swank's employees had be- come interested in the Union and were attending union meetings. The activity which resulted in the formation of the Association began in tb,^ latter part of April 1937, when William McClellan, a department supervisor 1 in Swank's plant, told Thomas Stevenson, Swank's general foreman, that he had been thinking about a "com- pany union" and he thought it would be a "good thing" if they had an organization to "keep what we already have." Stevenson agreed with McClellan and, together, they invited about 15 employees, including about 8 supervisors, to attend a meeting for the purpose of discussing the advisability of forming such an orgMlization. This meeting was held on the evening of May 4, 1937, in a small room adjoining Stevenson*s office. Among those present were Stevenson, the general foreman, McClellan, John I. Wiggins, Erle Nickerson, Lester Davey, George Desormeau, John Fuery, Albert Gaboury, all of whom are department supervisors, and Joseph Harney, who has occasional supervisory powers. Stevenson called the meeting to order, stated the purpose of the meeting, and said he was presenting the idea on behalf of one of the employees who had made the sug- ' Swank's plant is divided into appioximately eight departments , each of which is headed by a supervisory employee whose duties are similar to those of a working foreman or strawboss . These supervisors have no absolute power to hire or fire , but they are con- sulted concerning lay-offs and discharges and suggest which employees should be discharged The entire plant is supervised by one general foreman. 424 NATIONAL LABOR RELATIONS BOARD gestion to him. , Stevenson also said'he thought the"idea a good one, mentioned some of the advantages Swank's employees enjoy, which are not accorded employees in other plants, and stated that he thought it would be a good thing to protect these advantages. After an informal discussion, a vote was taken to determine whether or not the merits of such an organization should be further investigated and presented to all the employees. All those present, except two, voted in favor of further investigation. It was suggested that an attorney be consulted for advice in the matter. A few days later, Stevenson and three or four,other, employees, acting upon Stevenson's sugges- tion,- interviewed Attorney Chauncey E. Wheeler regarding the for- mation of a labor organization. Wheeler, who is counsel for the respondents in this proceeding, told this group that the organiza- tion which they contemplated would be legal and advised them to calla meetinb of all Swank's employees-and present, the plan to them. He further stated that he could not, assist in the formation of this organization inasmuch as he had previously represented Swank. Wheeler also advised Stevenson to take no part in the formation or administration of such an organization because of his supervisory duties,and his close association with the management. A meeting attended by about 250 of Swank's employees was held on the evening of May 14, 1937, in the assembly room of the plant. J. Carlton Bagnall, Swank's vice president in charge of production and labor relations, gave Stevenson permission to hold the meeting in the plant. It does not appear who called this meeting but Childs, a non-supervisory employee presided. Stevenson attended, informed the employees that he could have no further part in the 'organiza- tion, and after stating that they would henceforth have to proceed without his assistance, he withdrew from the meeting. After May 14, 1937, Stevenson took no part in the formation or administration of the Association. Those present- at the May 14 meeting appointed a committee, rep- resenting the various departments of Swank's plant to complete the organization of the Association. On May 19 and 20, 1937, the com- mittee conducted an election at the plant during working hours for the purpose of determining the desires of the employees regarding the formation of the Association. The ballots, which were mimeo- graphed by the wife of one of the employees, gave the employees an opportunity to vote "Yes" or "No" on the proposition, "Are you in favor of an Employees Association?" Two hundred and seventy- five employees voted in favor of the Association and 38 voted against it. Thereafter application cards were printed and distributed for the employees' signatures. The treasurer of the Association testified that 388 employees had signed application cards. Several super- visory employees are included in this number. DECISIONS AND ORDEI{S 425, On or about June 1, 1937, the first meeting of the - Association. was held in one of the doWntowii halls. At this meeting, at which- about 100 employees were present, officers of the Association were elected. Thereafter, a committee, appointed by the newly elected president, engaged Clarence A. Barnes; attorney-at-law, to assist them in completing the organization; Barnes drew up the Asso- ciation's bylaws following the suggestions submitted by the members- of the Association. On•June 18, 1937, at a second meeting attended by about 200 employees, the bylaws were apparently adopted without objection. It had been tentatively decided that dues would- be` 25 cents per month. Accordingly, some dues were collected and the money turned over to Barnes, who then proceeded' to incorporate the Association. A charter, dated June 24, 1937, was issued to the Association by the Commonwealth of Massachusetts. B. Conclusions with respect to the Association The testimony of many witnesses stands uncontradicted to the effect that application cards were signed and dues were collected during working hours without objection from Swank; that the first two organizational meetings of the employees were held in Swank's- plant; and that Stevenson and the other supervisory employees took a leading part in the formation of the Association. - Swank asserts that it in no way has interfered with, dominated, or assisted in the formation and administration of the Association,- and that the employees acted voluntarily and without coercion or- intimidation. Under the circumstances surrounding the formation of the Association, we cannot believe that Swank's employees have- actedvoluntarily. All the employees were well aware of the active part taken by their general foreman and their supervisors during- the formative stages of the Association. A supervisor had sug- gested the idea, many other supervisors, who were opposed to unions,"- favored this organization, and the general foreman had taken the leading part until advised by counsel that "reflection might be cast upon the Association" if the general foreman had anything to do- with it. Certainly, it cannot be said that employees exercise a free and unrestrained choice of a representative for collective bargaining 2 John Wiggins a supervisor , testified as follows concerning a conversation between himself and Joseph Harney, who has occasional supervisory powers and who is now vice president of the Association : " Q. Now I wish you would tell us what you said to Joseph Harney. A. I asked Joe about the same question and he made some such remark as 'What do you wantT and I said, 'They aie going to have a meeting upstairs to discuss union, or associations, some of the boys are mtereated in an independent association ' and Joe damned it and said,-'I don't want anything to do with it' So I said, 'Come on, will you?' and be said, 'I don't like unions ' I said , 'Maybe I don't,' and I said 'Maybe you are the fellow that we want to tell us about unions that we don 't know' and he said, 'all right' and he came up " Harney testified that lie was opposed to unions and had so expressed himself at the May 4 organizational meeting Two other supervisors testified, to a' similar dislike of unions. - -426 NATIONAL LABOR RELATIONS BOARD when the wishes of their superiors have been so clearly expressed. It is significant that Wheeler, the respondents' counsel, realized this when he advised -Stevenson to take no part in the formation -of- the Association. By permitting its plant to be used, without charge, -for the first two organizational meetings, and by permitting the members of the Association to solicit membership and collect dues during working hours, Swank contributed aid to the Association. Swank, through its foreman and supervisory employees took an active part in the formation of the Association, - thereby- lending --its- support -and influence to the Association. We find that Swank, by its activities described above, has inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act; has dominated and interfered with the formation of the Association, and has con- -tribiuted aid'and support to it; and that by its conduct it-has dis- -couraged membership in the Union. C. The discharge of Helen Robillard Helen Robillard, who had worked for Swank approximately 3 years, was given notice on June 11, 1937, that she was laid off forthwith. She was one of the two employees who did not vote at the May 4 meeting, and had on several occasions expressed her -opposition to the Association. She frequently attended meetings of the Union and joined the Union on June 4, 1937. Swank asserts that Robillard was not discharged, but was tem- porarily laid off despite her seniority and excellent workmanship because her physical condition would not permit her to perform a variety of operations required of a curtailed staff during business -depression. Robillard had taken a voluntary leave of 5 weeks the previous summer, and a contemplated operation would require that she take another leave in the near future. The evidence supports Swank's claim that Robillard was temporarily laid off for the rea- sons stated by Swank. Of the 10 employees laid off on June 11, 6 belonged to the Association. One week later, five more employees, including two members of the Association, were laid off. The only ether employee of Swank who belonged to the Union was retained. On July 22, four of those employees who had been laid off, includ- ing Robillard, were called back to work. Robillard resumed her work on July 23, 1937, and worked until August 22, 1937, when she -took sick leave for the purpose of having the contemplated opera- tion. She did not report back to work until November 29, at which time she was told that about 50 employees had been laid off during her absence, that there was no work for her, and that she would be called back to work as soon as possible. At the hearing, McClellan, Stevenson, and Bagnall all testified that they would be glad to give DECISIONS AND ORDERS 427 Robillard employment, when business warrants it. We find that Robixllard's lay-off was not occasioned by her membership,,. in or her activity on behilf of The Union. 1V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of Swank set forth in Section III above, occurring in connection with the operations of Swank 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 Swank has dominated and interfered with the formation of the Association, and has contributed aid and support to . it, -we'-shall- order Swank to withdraw recognition from- and to, disestablish the Association as collective bargaining representative for any of its employees. We shall further order Swank to cease and desist from its unfair labor practices and to take certain affirma- tive action which we deem necessary to effectuate the purposes and policy of the Act. We have found that Helen Robillard was not discriminatorily discharged. We shall, therefore, dismiss the complaint as to the discharge of Robillard. 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. International Jewelry Workers' Union, Local 18, and Swank Products Employees Association are labor organi ations, within the meaning of Section 2 (5) of the Act. 2. Swank, by dominating and interfering wilh the formation of Swank Products Employees Association and by contributing sup- port thereto, has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (2) of the Act. 3. Swank, by interfering with, restraining , and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (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. Swank has not discriminated in regard to the hire and tenure of employment of Helen Robillard within the meaning of Section 8 (3) of the Act. -428 NATIONAL LABOR r.^.r.tirro^s BOARD ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations -Act, the National Labor Relations Board hereby orders that the - respondent, Swank Products, Inc., Attleboro, Massachusetts, and its ,officers, agents, successors, and assigns, shall: 1. Cease and desist : (a) From in any manner dominating or interfering with the ad- =ministration of Swank Products Employees Association, or with the formation or administration of any other labor organization of its ,employees, and from contributing support to Swank Products Em- ployees Association, or to any other labor organization of its 'employees ; (b) From in any other manner interfering with, restraining,, or coercing its employees in the exercise of the right to self-organiza- tion, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Swank Products Employees -Association as a representative of any of its employees for the pur- poses of dealing with Swank concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of em- ployment, and completely disestablish Swank Products Employees Association as such representative; (b) Immediately post notices in conspicuous places throughout its plant and maintain such notices for a period of at least thirty (30) consecutive days stating : (1) that Swank will cease and desist as aforesaid, and (2) that Swank withdraws and will refrain from all recognition of Swank Products Employees Association as a rep- resentative of any of its employees for the purpose of dealing with Swank concerning grievances, labor disputes, rates of pay, wages, hours of employment and other conditions of employment, and com- pletely disestablishes it as such representative; (c) Notify the Regional Director for the First Region in writing within ten (10) clays fi.om the (late of tliis Order what steps Swank has taken to comply herewith. It is further ordered that the complaint in so far as it alleges that the respondent, Swank Products, Inc., has engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed; and, DECISIONS AND ORDERS 429 Further ordered that the complaint, in so far as it alleges that the respondent, The Baer & Wilde Co., has engaged in unfair labor practices, within the meaning of the Act, be, and it hereby is, dismissed. MR. DONALD WAKEFIELD SMITH took no part in the consideratiolf of the above Decision and Order.