135 NLRB 1019
New England Web, Inc.
NEW ENGLAND WEB, INC., ETC.
1019
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the Labor Management Rela-
tions Act, we hereby notify our employees that.
WE WILL NOT discourage membership in General Teamsters, Chauffeurs and
Helpers, Local Union No. 298, or any other labor organization , by discriminating
in regard to hire, tenure of employment , or any other term or condition of
employment of 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-organization , to form a labor
organization, to join General Teamsters , Chauffeurs and Helpers, Local Union
No. 298, or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection , or to refrain
from any and all such activities.
WE WILL offer Lottie Shiparski , Gertrude Rempala, Janice Reed , Mary Ratliff,
Walden Ratliff , and Frances Celebucki immediate and full reinstatement to
their former or substantially equivalent positions , without prejudice to their
seniority or other rights and privileges, and make them whole for any loss of
pay suffered as a result of the discrimination against them.
AUDIO INDUSTRIES, INC.,
Employer.
Dated-------------------
By-------------------------------------------
(Representative )
(Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
New England Web, Inc. ; National Webbing, Inc.; Tri-Dye Cor-
poration ; The Conrad Manufacturing Company ; Jarvis Manu-
facturing Corporation and Rhode Island State Joint Board,
Textile Workers Union of America , AFL-CIO.
Case No. 1-CA-
3185.
February 14, 1962
DECISION AND ORDER
On December 9, 1960, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed timely exceptions to the Inter-
mediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed.' The
I The General Counsel contends that the Trial Examiner committed reversible error be-
cause ( 1) he purportedly prompted Respondents' witness as to a reason for the discontinu-
ance of the operation ;
( 2) he refused to permit the General Counsel to pursue questions
as to Respondents'
economic
motivation, i e, concerning the Respondents' alleged in-
ability to pay higher wages; ( 3) lie refused to permit additional testimony concerning the
interchange of work between New England Web and National Webbing, (4) lie failed to
permit an amendment of the complaint to show an allegation of alter ego and successoi-
ship, and
( 5) he refused to permit testimony on alter ego and successoiship
On points
135 NLRB No. 102.
1020
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed.
The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings of the Trial Examiner only
to the extent consistent herewith.
Background : On March 8, 1960,2 Clarence Jarvis, in charge of all
operations at New England Web, Inc.,3 called the weavers into his
office and told them the quality of their work was poor and that because
of this New England Web was losing customers. To remedy the situa-
tion, he stated he was going to take them off piecework and pay them
by the hour.
He then showed them certain documents to back up his
position.
The next morning none of the weavers appeared for work because
they were dissatisfied with the new hourly rates.
However, a group
of them met with Jarvis at the plant and asked him if he would
reconsider his decision, and he declined.
The group adjourned to a
nearby cafe where they agreed to, and then did, call in the Textile
Workers Union to represent them.
That day, March 9, Union Representative Sylvia, in a phone call
to Jarvis, requested recognition and told Jarvis that he was sending
Jarvis a letter -to that effect.
Jarvis replied that the matter was in
the hands of his attorney. Sylvia sent the letter to New England
Web stating that the Union represented a majority of its employees
and requesting a conference to negotiate a contract.
At the same time
Sylvia wrote to the Rhode Island State Labor Relations Board peti-
tioning for an election.
On March 9, the Union picketed New England Web in protest
against the changed wage rate.
On March 11, Union Representative
Azzinaro phoned New England Web's attorney, Reid, and asked if
he would consider a card check conducted by an impartial third party
to determine the Union's majority status.
Reid declined the offer but
stated that he would attend a scheduled State Labor Relations Board
hearing on the representation question.
On March 16, Jarvis and Reid met with Sylvia and an employee
committee at the offices of the State Board.
Reid stated that he
doubted the Union represented a majority, but again declined Sylvia's
offer of a card check.
At a subsequent meeting with the State Board
on March 23, New England Web's representatives again refused a
card check.
On April 1, the State Board held an election which the
Union won and the Union was subsequently certified on April 8.
(2), (3), and
( 5), the General Counsel requested that the case be remanded .
As we find
that the present complaint and record is sufficient for findings of the alleged violations
and for joint responsibility of all of the Respondents , it is unnecessary to pass on these
contentions
2 All dates hereinafter occurred in 1960
3 Hereinafter,
the Respondents are referred to as follows * New England Web, Inc,
as New England Web ; National Webbing , Inc, as National Web ; Tri -Dye Corporation as
Tri-Dye; The Conrad Manufacturing Corporation as Conrad Manufacturing, and Jarvis
Manufacturing Corporation as Jarvis Manufacturing
NEW ENGLAND WEB, INC., ETC.
1021
On March 30, New England Web had sent its employees a pre-
election letter signed by Jarvis, in which it reiterated that the diffi-
culties New England Web was having with the quality of its products
was the reason that it abolished piecework and substituted an hourly
rate. The letter stated :
Keep this in mind, the Company is trying to provide work for
you.
We can do this only if our product is of good quality and
can be sold without customer rejects due to poor workmanship....
The weavers will be well paid to produce better web with less
imperfections that will make for easier and more pleasant work
for the employees who will have to handle this web after it is
woven.
The picketing continued through the date of the election, prior to
which certain alleged 8 (a) (1) statements were made by New Eng-
land Web, as treated below.
After the election, New England Web recognized the Union.
At
the first negotiation meeting on April 5, New England Web told the
Union that it would not meet the Union's wage demands, and that it
was going to liquidate.
New England Web stated that employees
would be needed to run out the work already on the machines, which
would take about 4 to 6 weeks and the plant would then be closed
down. It was also indicated that New England Web had lost its
largest customer and other customers, business which it would not
be able to get back.
On April 7, Jarvis offered a rate of pay for employees to run out
the work, and the parties agreed that the six workers who would be
needed would be called according to seniority.
After the meeting,
Azzinaro phoned Jarvis asking for an assurance to the workers that
an attempt would be made to continue business. Jarvis replied that
"he was going to close, and what was the sense of making any
statement."
On April 14, Azzinaro, on behalf of the Union, and each individual
employee on strike, sent separate letters to New England Web inform-
ing it that the strike was terminated and requesting reinstatement.
On the same day, a group of approximately 12 strikers led by Sylvia
went to New England Web and personally requested reinstatement.
On April 14, Attorney Reid sent a letter to Azzinaro stating, in
substance, that the conference with the Union about the running out
of the work did not result in any acceptance of terms by the em-
ployees; that work was available to be run out, specifying the rates
New England Web was willing to pay; that the Unions' proposal to
alternate the weavers was unacceptable; that employees interested in
running out work apply to Jarvis; that the work would be run out
and Jarvis would give no assurance how long it would be available;
1022
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that this offer would hold until April 18. The Union acceded
to these conditions and a number of workers, according to seniority,
undertook to run out the work.
Although New England Web esti-
mated in April that it would take 4 to 6 weeks to run out the work,
at the time of the hearing, which closed on September 2, New Eng=
land Web was still in operation running out the work.
On May 11, Azzinaro called Reid about negotiating a contract and
also advised him the Union was filing unfair labor practice charges.
Reid asked what was the sense of, meeting if charges were filed, but
did agree to meet on May 12. At that meeting New England , Web
,repeated its intention to close down the plant, and the discussion
centered around the Union's filing of charges wind New England
Web's unwillingness to negotiate any contract.
Finally Jarvis and
Reid requested that a contract be submitted to them.
On May 17, after a contract was submitted by the Union, the par-
ties met and New England Web's representatives reiterated their
concern about the charges filed.
However, the terms of the contract
were discussed and New England Web stated that if it was going
to sign a contract it would only be for the duration New England Web
would be in business, about 2 weeks.
Nothing definite was decided
on the wage question.
No subsequent meetings were requested or
held.
The Trial Examiner recommended dismissal of the entire com-
plaint.
Specifically, the Trial Examiner found no violation of
8(a) (1), after resolving credibility in favor of the Respondents'
witnesses.
The 8(a) (3) allegation was dismissed on findings that
Respondents were free of antiunion motivation and were compelled
for economic reasons to shut down.
The 8(a) (5) allegation was dis-
missed because the Trial Examiner found no refusal to bargain be-
fore the election, no discriminatory motivation in the shutdown, and
bargaining in good faith as to the running out of the work.
He also
concluded that the Respondents were not a single employer, as he
could not find that the Respondents constituted a single integrated
business enterprise.
We disagree with these findings to the extent
hereinafter stated :
I. The General Counsel contends that the Trial Examiner erred
in resolving credibility in favor of Respondents' witnesses and dis-
crediting the General Counsel's witnesses in a blanket manner without
stating on what basis the witnesses were discredited.
Further, Gen-
eral Counsel contends that the Trial Examiner failed to consider the
record as a whole in discrediting General Counsel's witnesses.
The Trial Examiner specifically discredited the testimony of wit-
nesses Lisi, Welch, and Cirillo and stated that their testimony did
not impress him because of their demeanor at the hearing. In view
of the Trial Examiner's credibility resolutions and our policy of not
NEW ENGLAND WEB, INC., ETC.
1023
overruling Trial Examiner's credibility resolutions unless clearly
erroneous, we hereby, in accord with the Trial Examiner, dismiss the
complaint insofar as it relates to the alleged threats made to Lisi,
Welch, and Cirillo by Jarvis and Clark.'
However, the Trial Examiner merely set out but failed to consider
the uncontroverted testimony of employees Noelte, Barsellos, and
Abate, apparently because there was no specific allegation in the com-
plaint as to this evidence.
Thus, Noelte, • who worked during the
strike, testified that Jarvis asked him before the election,if he had
ever gone to any of the union meetings. Barsellos testified that on
March 9 he was asked by Jarvis, Clark, and Quattromani why he did
not go back to work; that Jarvis, on hearing Barsellos' wife was ex-
pbcting a baby, stated "that's right, effective as of right now there
won't be any more Blue Cross"; that during the strike he received a
,phone call from Jarvis, who wanted to know, If I was with him or
against him," and that Jarvis told him, when he said he wanted to go
back to work, to hold on until things straightened out.
Abate, a
weaver, testified that during the week before the election, in response
to a phone call from Quattromani, Abate called at his home where
Quattromani told him if the Union got in Jarvis would close the
plant.
Although the complaint did not specifically allege that the state-
ments made to employees Noelte, Barsellos, and Abate violated Section
8(a) (1), we are not thereby precluded from finding that their'state-
ments were unlawful.
As we stated in Stokely-Van Camp, Inc:, et al.,
d/b/a Stokely-Boaro : 5 .
It is also the practice to allow the General Counsel considerable
leeway in amplifying or expanding certain details not specifically
set forth in the complaint if they accord with the general sub-
stance of the complaint.
As long as those details are fully liti-
gated and offer no element of surprise to the Respondent, they are
usually held to be a proper basis for an unfair labor practice find-
ing.
However, when the General Counsel attempts to prove, or
the Trial Examiner makes a finding of an entirely new cause of
action or violation not covered in the complaint, the Board has
rejected such offer of proof or finding.
Here, the admission of the testimony of Noelte, Barsellos, and Abate
was not objected to at the hearing and their testimony is in accordance
with the substance of the 8 (a) (1) allegations.
Also, the Respondents
cannot claim an element of surprise because these statements were
brought out the first day of the 4-day trial and the Respondents had
ample opportunity to bring in contradictory testimony if such existed.
See "M" System, Iao., Mobile Home Div., Mid-States Corp., 123 NLRB 1281.
6130 NLRB 869, at 872.
1024
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that these statements made by Respondent New England
Web's officers, Jarvis and Clark, and its conceded supervisor, Quat-
tromani, to employees Noelte, Barsellos, and Abate, had a tendency to
restrain or interfere with employees in the exercise of their organiza-
tion rights and, accordingly, that thq,Respondent, New England Web,
violated Section 8(a) (1) by engaging in such conduct.
II. The General Counsel contends that the Respondents violated
Section 8(a) (3) by the discharge or lockout of employees as the result
of the shutdown and the announced liquidation of New England Web
immediately following the State Board election.
We agree with the
General Counsel.
The record shows that the Trial Examiner erred in stating that New
England Web ceased operations on and after March 9 because of the
economic strike.
The fact is that the weavers went out on strike on
that date and several employees, not weavers, continued to work during
the strike on previously loomed material.
On the Monday following the Friday election there was a complete
shutdown, that is, the nonweavers as well as the striking weavers were
then not working. The reason given by Jarvis for the shutdown was
that there was no work for employees because the looms had not been
started and the nonstrikers had no materials to work with.
However,
Jarvis' reason for the shutdown does not stand scrutiny. It appears
that immediately before the election there was work for nonweavers,
whereas immediately after, so Respondents claim, there was no work.
However, Nellie Scholes, who reported for work the Monday following
the Friday election, was told by Quattromani that until everything
was settled, union or no union, "we wouldn't be working" for New
England Web. Margaret Foster, who reported for work that Monday,
was told by Quattromani, "We might liquidate or we might not, I
don't know anything about it right now. I'll have to find out from
Mr. Jarvis what we possibly are going to do." These statements stand
uncontradicted.
Nor does the record show any statement made to
employees that the reason that there was no work on that Monday was
a lack of materials.
Although on April 4 the plant was already shut down and the non-
weavers had been denied work, Jarvis announced his decision to run
out the work at the bargaining session on April 5. This action of New
England Web took place on the heels of the Union's success in the elec-
tion.
Prior to the election, no statement had been made to employees
that New England Web would have to go out of business, other than
the statement to Abate by Quattromani that New England Web would
close down if the Union got in. Initially Jarvis was worried about
quality of work, not the cost. (See e.g., March 30 letter, supra.)
After the election, he stated his reason for closing was that he could
not afford to pay union wages.
NEW ENGLAND WEB, INC., ETC.
1025
Also, there are uncontradicted statements that after the election
more of the work performed by New England Web went to National
Web for further processing than was the custom prior to the election.
Nevertheless, the Trial Examiner found there was no difference in the
manner of interchange of work between the two Companies before and
after the "strike."
On the basis that such interchange was not some-
thing new and that New England Web was in a process of liquidating
for economic reasons, the Trial Examiner rejected the General Coun-
sel's contention that the circumstances showed "union animus."
The Trial Examiner in finding no union animus stated it would in-
volve too much surmise and inference.
However, the foregoing facts
and especially the uncontradicted testimony of Abate showing a threat
of• a shutdown on the 'advent of the Union and Nellie Sholes and
Margaret Foster's testimony as background evidence is evidence of
union animus. Therefore, we reject the Trial Examiner's finding and
find that these circumstances show union animus.
The Trial Examiner found that the General Counsel failed to dis-
prove the Company's economic defense.
However, Respondent New
England Web failed to substantiate its economic defense in that it
produced no records at the hearing to support its economic conten-
tions, although the testimony indicates it had letters, records, and
summaries which it attempted to show the employees on March 8
when it announced the new hourly rates.
We find the nonproduction
of material evidence in New England Web's possession gives rise to
an adverse inference.'
In view of the foregoing, we find that the General Counsel made
out a prima facie case on the alleged 8(a) (3) shutdown, consisting,
inter alia, of (1) Respondents' failure to mention the prospect of
liquidation for economic reasons, and conduct showing the contrary
immediately prior to the election; (2) the sudden shutdown after
the Union won the election; (3) the announcement of the decision
to liquidate at the first bargaining session; (4) the shift in reasons
given for the shutdown ; and (5) the uncontradicted threat in vio-
lation of 8(a) (1).
Further, we find that the Respondents have not
effectively rebutted the General Counsel's prima facie case.
In view of the foregoing and the record as a whole, we find that
Respondent New England Web locked out and discharged its em-
ployees, and proceeded to liquidate its operation for discriminatory
reasons and that by such conduct the said Respondent violated Sec-
tion 8(a) (3) and (1) of the Act'
U Tabulating Card Company, Incorporated, 123 NLRB 62, 73
7 See E. C
Brown Company, et at., 81 NLRB 140; Morris and David Yoseph, d/b/a
Yoseph Bag Company, 128 NLRB 211 ; Bonnie Lass Knitting Mills, Inc, 126 NLRB 1396;
'Hugh Major d/b/a Hugh Mayor Truck Service, 129 NLRB 322
634449-62-vol. 135-66
1026
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. The General Counsel contends that a violation of Section
8 (a) (5) was established by : the absence before the election of a
good-faith doubt as to the Unions' majority, e.g., the refusal to accept
a card check; the unilateral action after the election of shutting down
the plant; and the refusal to agree to a contract until the disposal of
the unfair labor practice charges.
-The Respondent New England. Web admits, and we find, that a
unit of production,and maintenance employees at New England Web
is appropriate for bargaining purposes.
Further, we find that the
Union on and after April 1 was the majority representative in such
unit.
We have already found that New England Web locked out its em-
ployees and proceeded to liquidate its operations on April 5, 1960, in
violation of Section 8 (a) 3). In view of the fact that this shutdown
and liquidation was to avoid dealing with the Union, we also find
that by this conduct New England Web violated Section 8( a) (5) of
the Act .8
IV. The General Counsel contends that all five Respondents are a
single employer, and that at the very least National Web is the alter
ego of, and successor to, New England Web and should be found
jointly responsible with New England Web for any unfair labor
practices.
In his concluding findings the Trial Examiner found that the Gen-
eral Counsel had failed to prove that the Respondents are affiliated
businesses and constitute a single integrated business enterprise.
However, in his earlier discussion of the issue, he stated that Clarence
Jarvis and C. Chester Rodenbush were in a position to exercise domi-
nant control and that they, together with another stockholder,
O'Hayer, did actively control the affairs of each corporation except
perhaps Tri-Dye; and that he "can find common ownership without
s See Bonnie Lass Knitting Mills, Inc, supra ; Yoseph Bag Company, supra; E. C Brown
Company, supra
Although the General Counsel contends there are other bases for find-
ing specific violations of 8(a) (5), we do not pass on them as they are unnecessary to the
disposition of this case , and would not affect the remedy.
The Trial Examiner stated as
a conclusion that there was an impasse between the Company and the Union with respect
to wages
Earlier the Trial Examiner referred to the Union's "adamant stand regarding
wages, discussed below," and later he described Jarvis' testimony that Jarvis "understood
that the Union wanted 20 cents an hour increase across the board and, as he understood
the demand would amount to more than what was demanded at the time of the strike or
what the weavers could have earned at piecework rates."
Elsewhere in the record, Jarvis
indicated that he had no fixed idea as to what the union demands were , and explained that
to pay anything more than New England Web's offer would make continuing in business
impossible.
The Trial Examiner indicated no reason for his conclusion that an impasse
occurred at the first bargaining session, nor any rationale as to how an impasse influenced
New England Web's decision to cease operations.
New England Web at the first bargain-
ing session announced its decision to liquidate , and had already taken steps to shut down
It was adamant In refusing to discuss the possibility of staying in business, and was
willing to bargain only about the running out of the work and to execute a contract only
for the duration of the "running-out."
Contrary to the Trial Examiner, we find that no
impasse occurred at the first bargaining session when New England Web announced its
decision to liquidate its business.
NEW ENGLAND WEB, INC., ETC.
1027
difficulty."
But he nevertheless found that Tri-Dye, Conrad Manu-
facturing, and Jarvis Manufacturing had no connection with New
England Web and National Web to justify a finding that they were
tainted with the alleged unfair labor practices.
As to New England
Web and National Web, he said that :
Common control and common ownership are here present, to-
gether with enough facts to justify a presumption, at least,
that the community of interest which can be found from the
identical operations and policy control of these two enterprises,
together with the shifting of the weaving operations from the
premises of one to the premises of the other, could or does make
them a common or single enterprise resulting in joint responsi-
bility.... This presumption I shall find is rebutted by the pre-
ponderance of the evidence.
However, the Trial Examiner does not further discuss the single
employer issue other than in the summary conclusion noted above,
and does not show how the "presumption" was rebutted.
The record shows in brief : (1) All five companies are housed in the
same building except National Web which is located in an adjacent
building but uses the same stairway and elevator as the others; (2) all
companies share the same office and clerical staff, subject to common
supervision, and all companies use the same telephone switchboard;
(3) Clarence Jarvis is an officer and director of all companies-presi-
_dent of National Web, Jarvis Manufacturing, and Conrad Manufac-
turing and treasurer of Tri-Dye, Jarvis Manufacturing, and Conrad
Manufacturing; (4) Jarvis owns or has control of stock in all compa-
nies, i.e., 25 percent of New England Web, 25 percent of National Web,
40 percent of Tri-Dye, about 80 percent of Conrad Manufacturing, and
100 percent of Jarvis Manufacturing (through the ownership of his
immediate family) ; (5) all companies deal in similar products and to
a limited extent use one another's facilities; and (6) Jarvis appears
directly to control labor relations for all companies, except Tri-Dye,
for which Clark handles labor relations; however, Clark is Jarvis'
assistant
at
New England Web, National Web, and Conrad
Manufacturing.
From the foregoing, it appears that all five companies are com-
monly owned and controlled.
Accordingly, we find, contrary to the
Trial Examiner, that all five Respondents are a single employer
within the meaning of the Act, and are jointly responsible for New
England Web's unfair labor practices.'
The Remedy
Having found that the Respondents have engaged in certain unfair
labor practices, we shall order that they cease and desist therefrom
9 See Editorial "El Impartial," Inc., 123 NLRB 1585.
1028
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and take certain affirmative action which we find necessary to effectu-
ate the policies of the Act and to restore insofar as possible the status
quo existing prior to the commission of the unfair labor practices.
As all of the Respondents herein are a single employer within the
meaning of the Act and are engaged in related businesses, we shall
order the Respondents to offer all those employees who ceased to be
employed as a result of the lockout and liquidation of New England
Web's operations reinstatement as a group to their former or substan-
tially equivalent positions, dismissing employees hired after the lock-
out if necessary, either at the New England Web plant, if the Re-
spondents resume operations there, or in the other enterprises of the
Respondents, if the Respondents do not resume operations at the New
England Web plant. Such reinstatement shall be without prejudice
to their seniority and other rights and privileges.
We shall further order,the Respondents to make whole the em-
ployees referred to above for any loss of pay they may have suffered
by reason of the Respondents' discrimination, by payment to them of
a sum of money equal to the amount each would normally have earned
from the date he was terminated as a result of the decision to liquidate
New England Web's operations to the date of an offer of reinstate-
ment at New England Web or as a group at any of the Respondents'
operations less his net earnings during such period, to be computed
on a quarterly basis in the manner established in F. W. Woolworth
Company, 90 NLRB 289.10
However, in accordance with our usual
practice, backpay will be tolled from the date of issuance of the Inter-
mediate Report to the date of this Decision and Order.
We have given Respondents an election as to whether they will
remedy their 8(a) (3) violations by resuming operations at New
England Web or 'by reinstating the New England Web employees as
a group to positions at their other operations, because we recognize
that resumption of the New England Web operations now may not
be a feasible course of action for purely business reasons, and because
we believe the 8(a) (3) violations may be remedied by reinstatement
to positions in Respondents' other operations.
However, we have
also found that Respondents violated Section 8(a) (5) by refusing to
bargain with the Union as the exclusive representative of an appropri-
ate unit of its New England Web employees by closing down such
operations to avoid its bargaining obligations.
Manifestly the remedy
for this violation is to order Respondents to continue to recognize and
bargain upon request with the Union as the exclusive representative
of its New England Web employees. This can be done most straight-
forwardly by Respondents' resumption of its New England Web
operations, thus preserving the bargaining unit in the form it existed
10 In the case of the strikers, backpay shall start from the date they applied for
reinstatement.
NEW ENGLAND WEB, INC., ETC.
1029
at the time of Respondent's unfair labor practices;
The alternative
to such resumption which we have provided for as a remedy to Re-
spondents' violations of 8 (a) (3), is therefore an appropriate remedy,
one "adapted to the situation which calls for redress," 11 only if it
also preserves the right of the New England Web employees to be
represented for purposes of collective bargaining by the Union. It
can preserve such rights only if Respondents nevertheless continue to
recognize and to bargain upon request with the Union as the exclusive
representative of the New England Web employees. It is for this
reason we order reinstatement of these employees as a group.
While,
in such circumstances, the unit for which bargaining will take place
will be one in which the employees are perhaps located with other
employees with similar or like skills, having the same supervision, it
will nevertheless be identifiable as the former unit of New England
Web employees, which we have found herein to be appropriate, and
whose bargaining rights have been violated by Respondents. In these
circumstances, and calling upon our remedial powers, we find that
such a unit of employees continues to be appropriate for purposes of
collective bargaining within the meaning of the Act.12
Accordingly, we shall order Respondents to recognize and bargain
upon request with the Union as the exclusive representative of its
New England Web employees, whether said employees are reinstated
to positions in resumed New England Web operations, or whether
they are reinstated as a group in Respondents' other operations.13
11 N L R B v. Mackay Radio h Telegraph Co, 304 U S. 333 See also
N.L R B. v
District 50, United Mine Workers of America
(Bowman Transportation,
Inc ),
355
U.S 453.
"Member Leedom is unwilling to join with his colleagues in ordering the Respondents
to reinstate the discriminatees as a group in the event the Respondents elect, under the
alternative afforded by the remedy herein, not to resume the New England Web operation.
While he agrees that the usual reinstatement remedy presents difficulties as to the
8(a)(5) found herein , he sees no warrant for resolving those difficulties by doing in-
directly what his colleagues say they will not do directly
Thus, the Respondents are
being required to provide group reinstatement for some 29 employees in such a way as
to preserve their identity as a unit.
The Respondents are therefore liable to backpay
assessments until adjustments can be made in existing operations so as to accommodate
the employees as a group .
Barring the feasibility of making such adjustments , and it is
not suggested that the Respondents dismiss employees whose tenure antedated the lock-
out found discriminatory herein in order to comply with this order , this group reinstate-
ment could be effected in the foreseeable future only by reinstating the New England
Web operation , a remedy which the Board has seen fit not to provide.
13 Member Leedom disagrees with providing group reinstatement to preserve the Union's
continued representation of the employees
He contends that by such a remedy, we are
doing indirectly what we say we will not do directly , that is ordering the reopening of
New England Web
We disagree. In our opinion, the failure to provide group reinstate-
ment would leave the unit placement of employees to the discretion of the Respondent,
who was so opposed to bargaining with the Union that it closed down its operation,
putting 29 people out of work
We cannot expect that the Respondent will voluntarily
provide reinstatement which will insure the very same employees ' bargaining rights.
However, the remedy herein avoids a fixed position on how the Respondent must remedy
the discriminatory discharges and refusal to bargain, because we recognize that the
Respondent may be able to accomplish the desired result through means other than re-
opening New England Web
The fact that its freedom of action is more limited than it
or Member Leedom would like stems directly from Respondent's unlawful conduct
Our
1030
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In 'view of the nature of unfair labor practices committed, the
commission by the Respondents of similar and of other unfair labor
practices may be anticipated here.
The remedy should be coextensive
with the threat. It will therefore be ordered that the Respondents
cease and desist from infringing in any manner upon rights guaran-
teed in Section 7 of the Act.14
CONCLUSIONS OF LAW
We adopt the following conclusions of law, in lieu of those set
forth in the Intermediate Report :
1. Respondents are engaged in commerce, and the Union is a labor
organization, within the meaning of the Act.
2. All production and maintenance employees at Respondent's New
England Web, Inc., Providence, Rhode Island, plant, excluding office
clerical employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for purposes of collective bargaining
within the meaning of the Act.
3. At all relevant times after April 1, 1960, the Union has been
exclusive bargaining representative of employees in the aforesaid ap-
propriate unit, within the meaning of Section 9(a) of the Act.
4. By discriminatorily discharging Robert Bliss, Rosaleen Bliss,
Charles Bonnano, Alice Booth, Marguerite Cirillo, Margaret Foster,
Stasia Fuller, Thomas Gibbons, Lucille Leclerc, Doris Moore, Walter
H. Noelte, Nellie Scholes, William Abate, Lucien Baker, Manuel
Barsellos, Gerard Beaucage, James Buco,
Walter Burnett, Jr.,
Francis Garceau, Alice Guilbeault, Alfred Gutierres, Alfred Ken-
nedy, Michael Laptew, Pasco Lisi, Gertrude Marcinkwicz, J. Eugene
Theberge, Jr., Albert Trazi, James Welch, and Walter Wright, the
Respondents have engaged in and are engaging in unfair labor prac-
tices within the meaning of Section 8(a) (3) and (1) of the Act.
5. By locking out their employees and by the liquidation of New
England Web to avoid bargaining collectively with the Union as the
exclusive representative of the employees in the aforesaid appropriate
unit, the Respondents have committed unfair labor practices within
the meaning of Section 8 (a) (5) of the Act.
6. By the foregoing conduct and by engaging in the conduct de-
tailed in section I, supra, the Respondents have interfered with,
restrained, and coerced their employees in the exercise of rights
guaranteed them in Section 7 of the Act and have thereby committed
concern is not with telling Respondent how to run its business but with effectively and
equitably preserving the discriminatees' right to reinstatement and to be represented by
the Union.
14 We reserve the right to modify our remedial order if there is a substantial change of
conditions in the future , or to clarify its application to specific circumstances not now
apparent
Bermuda Knitwear Corporation, 120 NLRB 332
NEW ENGLAND WEB, INC., ETC.
1031
unfair labor practices within, the meaning of Section 8 (a) (1) of the
Act.
7. The aforesaid . unfair labor practices are- unfair labor practices
affecting commerce Within -the meaning of Section 2(6) and (7) of the
Act.
ORDER
Upon the entire record in the case, and, pursuant to Section 10 (c)
of the National Labor Relations Act, as, amended, the National Labor
Relations, Board, hereby orders that, the • Respondents, • New England
Web, Inc., National Webbing, Inc., Tri-Dye Corporation, The Con-
rad Manufacturing Company, Jarvis Manufacturing Corporation,
their,officers, agents, successors,. and assigns,, shall :
1. Cease and desist from :
(a) Refusing to -bargain collectively,. upon request, with Rhode
Island State Joint Board, Textile Workers Union of America, AFL-
CIO, as the exclusive representative of all production and mainte-
nance employees employed or formerly employed at their New Eng-
land Web, Inc., Providence, Rhode Island, operations, excluding office
clerical employees, guards, and all supervisors as defined in the Act.
(b) Discouraging membership in the aforesaid labor organization,
or in any other such organization of- ' their employees, by terminating
the,employment of, and refusing to reinstate, any of their employees
or by discriminating in any other manner in regard to their hire and
tenure of employment or any other term or condition of employment,
except to the extent permitted by the proviso in Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
(c) Threatening their employees to discontinue any operations or
department or to discharge any of them or to take other reprisals
because of their membership in, or activities on -behalf of, Rhode
Island State Joint Board, Textile Workers Union of America, AFL-
CIO, or any other labor organization.,
(d) Interrogating their employees concerning the identity of mem-
bers or supporters of ' the above-named Union, or any other labor
organization, in a manner constituting interference, restraint, and
coercion in violation of Section 8 (a) (1) of the Act.
(e) In any other manner interfering with, restraining, or coercing
their employees in the exercise. of their right to self-organization, to
form, join, or assist the above-named Union, or any other labor or-
ganization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities, except to the extent
that such right may be affected by an agreement requiring member-
1032
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship in a labor organization as a condition of employment, as author-
ized by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to all employees who were deprived of work by the lock-
out and liquidation of the Respondents' New England Web, Inc.,
Providence, Rhode Island, plant, immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and in accordance
with the other conditions set forth in the section of this Decision and
Order entitled "The Remedy."
(b) Make whole such employees for any loss of earnings they may
have suffered as a result of the discrimination against them, as pro-
vided in the section of this Decision and Order entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Bargain collectively, upon request, with Rhode Island State
Joint Board, Textile Workers Union of America, AFL-CIO, as the
exclusive representative of all production and maintenance employees,
excluding office clerical employees, guards, and supervisors employed
at New England Web, as provided in the section of the Decision and
Order entitled "The Remedy," and, if an agreement is reached, em-
body such understanding in a signed agreement.
(e) Send to each of the employees referred to in paragraph 2(a)
of this Order a letter offering him reinstatement and setting forth
the Respondents' election as to where they will effect such reinstate-
ment and include in such letter a copy of the notice attached hereto
marked "Appendix." 11
(f) Post at their plant in Providence, Rhode Island, copies of the
notice attached hereto marked "Appendix." 16
Copies of said notice,
to be furnished by the Regional Director for the First Region, shall,
after being duly signed by Respondents, be posted by Respondents
immediately upon receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps
shall be taken by Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
36 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1s However,' If, Respondents elect to resume the New England web operations, such
notice shall be posted at such location
NEW ENGLAND WEB, INC., ETC.
1033
(g) Notify the Regional Director for the First Region, in writing,
within 10 days from the date of this Order, what steps the Respond-
ents have taken to comply herewith.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
APPENDIX
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 Labor-Management
Relations Act, we hereby notify our employees that :
WE WILL bargain collectively, upon request, with Rhode Island
State Joint Board, Textile Workers Union of America, AFL-
CIO, as the exclusive representative of all production and main-
tenance employees employed or formerly employed at our New
England Web, Inc., Providence, Rhode Island, operations, ex-
cluding office clerical employees, guards, and all supervisors as
defined in the Act, with respect to rates of pay, wages, hours of
employment, and other conditions of work, and, if an understand-
ing is reached, embody it in a signed agreement.'
WE WILL NOT discourage membership of our employees in the
above-named or any other labor organization by discontinuing
operations or by discriminating in any other manner in regard
to their hire and tenure of employment, or any term or condition
of employment.
WE WILL offer all employees who were deprived of employ-
ment as a result of the shutdown of our New England Web plant
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges previously enjoyed.
Such reinstatement
will be offered at New England Web, Inc., if we reopen it. If no
such plant is opened, we will offer such reinstatement as a group
at our other operations.
WE WILL make all said employees whole for any loss of pay
suffered as a result of the discrimination against them.
WE WILL NOT threaten our employees to discontinue any opera-
tions or departments or to discharge any of them or to take other
reprisals because of their membership in, or activities on behalf of,
Rhode Island State Joint Board, Textile Workers Union of
America, AFL-CIO, or any other labor organization.
WE WILL NOT interrogate our employees concerning the identity
of members or supporters of the above-named Union, or any other
labor organization, in a manner constituting interference, re-
straint, and coercion in violation of Section 8(a) (1) of the Act.
1034
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist the
above-named or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid and protection, or to refrain from
any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
NEW ENGLAND WEB, INC.;
NATIONAL WEBBING, INC. ;
TRI-DYE CORPORATION ;
THE CONRAD MANUFACTURING COMPANY;
JARVIS MANUFACTURING CORPORATION,
Employers.
Dated----------------
By-------------------------------------
(Representative )
( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office (24 School Street, Boston 8, Massachusetts; Telephone Number,
Lafayette 3-8100) if they have any question concerning this notice or
compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed May 10, 1960, and an amended charge filed June 24, 1960,
by Rhode Island State Joint Board, Textile Workers Union of America, AFL-CIO
(herein called the Union), the General Counsel of the National Labor Relations
Board, on behalf of the Board , by the Regional Director for the First Region, on
June 30, 1960, issued a complaint and notice of hearing against New England Web,
Inc., National Webbing, Inc., Tri-Dye Corporation, The Conrad Manufacturing
Company, and Jarvis Manufacturing Corporation, herein called the Respondents.
The complaint alleged that the Respondents had engaged in and were engaging in
unfair labor practices within the meaning of Section 8 (a)(1), (3), and (5) of the
National Labor Relations Act, as amended, 61 Stat. 136, 79 Stat. 519 (herein called
the Act).
The Respondent, New England Web, Inc ., filed a timely answer to the
complaint.
On July 19, 1960, the Union filed a second amended charge ; on July 22,
1960, an amended complaint and notice of hearing was issued.
The amended com-
plaint alleged that the Respondents had engaged in and were engaging in unfair
labor practices within the meaning of Section 8(a) (1), (3 ), and (5) of the Act, as
more fully set forth below.
The Respondents filed a joint answer to the amended
complaint, effectively denying the alleged violations of the Act.
This matter was heard by the duly designated Trial Examiner at Providence, Rhode
Island, on August 30 and 31 and September 1 and 2, 1960.
At the hearing the Gen-
eral Counsel and the Respondents were represented by counsel .
Full opportunity
to be heard, to examine and cross-examine witnesses, to argue orally upon the
record, and to file proposed findings of fact , conclusions of law, and briefs was
NEW ENGLAND WEB, INC., ETC.
1035
afforded each party .
Briefs were filed on behalf of the General Counsel and the
Respondents and have been carefully considered.
Upon the whole record of the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS'
The Respondents are and have been at all times material hereto corporations
duly organized under and existing by virture of the
'laws of the State of Rhode
Island.
Each Respondent has a separate place of business numbered 217 Conant
Street, Pawtucket, Rhode Island, and are now and continuously have been during
the times material hereto engaged in the manufacture , sale, and distribution of
elastic webbing, shoelaces, and related products.
In the course and conduct of their businesses the Respondents caused, and con-
tinuously have caused at all times material hereto , large quantities of rubber and
thread and other raw materials used by them in the manufacture of elastic webbing
to be purchased and transported in interstate commerce from and through various
States of the United States other than the State of Rhode Island, and caused, and
continuously have caused at all times material hereto , substantial quantities of
elastic webbing and other products to be sold and transported from said plant in
interstate commerce to States of the United States other than the State of Rhode
Island.
In the course and conduct of their businesses the Respondents receive ma-
terials having an annual value in excess of $50,000 at their principal places of busi-
ness from points outside the State of Rhode Island , and ship products having an
annual value in excess of $50,000 from their principal places of business to points
outside the State of Rhode Island .
The Respondent, New England Web, Inc.,
admits the jurisdiction of the Board.
The aforesaid Respondents are and have been engaged in commerce within the
meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Rhode Island Joint Board, Textile Workers Union of America, AFL-CIO, is
a labor organization within the meaning of Section 2 (5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Whether the businesses of the Respondents constitute a
single integrated business enterprise
The complaint alleges ( in part) :
The Respondents are, and at all times material herein have been , affiliated
businesses with common officers, ownership, directors , and management and
constitute a single integrated business enterprise , and a single employer within
the meaning of Section 2(2) of the Act .
The said directors and management
formulate and administer a common labor policy for the aforenamed companies
affecting the employees of said companies.
The names of the officers and directors of each of the Respondent corporations are
as follows:
New England Web, Inc.
Directors
Officers
Robert O'Hayer
President-Robert O'Hayer
Clarence W. Jarvis
Vice President-C. Chester Rodenbush
C. Chester Rodenbush
Secretary-C. Chester Rodenbush
Treasurer-Clarence W. Jarvis
Tri-Dye Corporation
Directors
Officers
Clarence W. Jarvis
President-William T. Clarke
-
William T. Clarke
Vice President-Clarence W. Jarvis
C. Chester Rodenbush
Secretary-C. Chester Rodenbush
Treasurer-C. W. Jarvis
'These findings are established by the amended complaint and admissions in the answer
thereto.
1036
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Directors
Clarence W. Jarvis
Robert O'Hayer
C. Chester Rodenbush
Ernest L. Goodman
Directors
Clarence W. Jarvis
Anita Jarvis
C. Chester Rodenbush
National Webbing, Inc.
Officers
President-Clarence W. Jarvis
Vice President-Robert O'Hayer
Secretary-Ernest L. Goodman
Jarvis Manufacturing Corporation
Officers
President-Clarence W. Jarvis
Vice President-Anita Jarvis
Treasurer-Clarence W. Jarvis
Secretary-Ernest L. Goodman
The Conrad Manufacturing Company
Directors
Officers
Clarence W. Jarvis
President-Clarence Jarvis
C. Chester Rodenbush
Vice President-C. Chester Rodenbush
Ernest L. Goodman
Treasurer-Clarence W. Jarvis
Secretary-Ernest L. Goodman
Stock ownership of the several corporations was established through ,the testimony
of Clarence W. Jarvis, as follows:
New England Web, Inc.: Robert C. O'Hayer, 50 shares; C. Chester Rodenbush,
50 shares; Clarence Jarvis, 50 shares; and an additional 50 shares, ownership not
disclosed.
National Webbing, Inc.: Robert O'Hayer, 75 shares; William Catterall and Alice
Catterall, 75 shares; Clarence W. Jarvis, 75 shares; C. Chester Rodenbush and Sons,
Inc., 75 shares.
Tri-Dye Corporation: William T. Clarke, 45 shares; Clarence Jarvis, 40 shares;
William Catterall, 10 shares; C. Chester Rodenbush, 5 shares.
The Conrad Manufacturing Company: Clarence Jarvis, 496 shares; Robert C.
O'Hayer, 50 shares; C. Chester Rodenbush, 50 shares; Clarence Jarvis, 50 shares.
For New England Web labor policy or matters concerning labor questions are
formulated or handled by Clarence Jarvis, Robert O'Hayer, and the attorney for the
Company. Regarding other policy matters, Clarence Jarvis deals with sales; produc-
tion and quality problems are handled by Anthony Quattromani, plant superintendent;
and finishing and dyeing is under the direction or control of William T. Clarke.
Clarence Jarvis testified, "A grievance or someone in trouble who needs financial
aid, I would take care of myself; and in many cases the employees would come
directly to me if they were in trouble.
This has happened on a number of occasions."
The six-story building at 217 Conant Street, owned by Conrad Realty (not a
respondent), houses New England Web on the first floor, Tri-Dye Corporation on the
first floor, and Conrad Manufacturing Company in part of the basement, all of the
second floor, all of the fourth floor, and all of the fifth floor. Jarvis Manufacturing
Corporation occupies a part of the basement and an unconnected enterprise, Berk
Lace and Braid Company, is located on the third floor of that building.
Next door,
and separated from the Conrad Realty Building at 217 Conant Street by a party
wall is the 4-D Realty Company Building.
National Webbing, Inc., occupies the
fourth floor of the 4-D Building
The fourth floor of the Conrad Building and the
third 'oor of the 4-D Realty Building are on the same level.
There is an archway
in the party wall between these floors so that National Webbing may have the-use of
New England Web's elevator.
There is a common stairway leading from or to
Conant Street, all of the exits on the left-hand side being for the Conrad Realty
Building; the exits on the right-hand side lead into the 4-D Building.
The operations of each Respondent were described by Clarence Jarvis, briefly, as
follows:
National Webbing and New England Web make the same type of finished prod-
uct, namely, webbing. Jarvis Manufacturing manufactures nothing but elastic
braid, period, that's all.
Conrad Manufacturing makes trimming braid, shoe-
laces, corset laces, awning braid, elastic braid, any kind of braid that would be
made, hat braid, anything you can name.
Tri Dye does nothing more than to
do dyeing for Conrad Manufacturing, Jarvis Manufacturing, and numerous
other companies that iI am not familiar with.
NEW ENGLAND WEB, INC., ETC.
1037
The foreman employed by National Webbing and Conrad Manufacturing are under
the direct supervision of Jarvis assisted by Clarke and labor relations policies are set
or carried out by Jarvis and O'Hayer.2
Clarke controls labor relations policy at Tri-
Dye; Jarvis, O'Hayer, and company counsel collaborate in respect to labor policy for
New England Web, National Webbing, and Conrad.
The General Counsel argues with force that on the basis of the identity of the
officers, directors, and stockholders of the Respondents and the testimony of Clarence
Jarvis, it is clearly shown that Jarvis controlled each Company except Tri-Dye or
could control them in combination with only one other person; that it has been
shown that he is in fact the moving and controlling voice of the Respondents and
the dominating figure in "these closely knit and allied ventures."
On the basis of stock ownership and management control it might here be found
that the Respondents and the business of each of them constitutes an integrated
business enterprise in that Jarvis and Rodenbush principally were in a position to
exercise dominant control and, so far as the facts herein show, Jarvis, Rodenbush,
and O'Hayer did actively control the affairs of each corporation except perhaps
Tri-Dye. Jarvis, it is shown, through his and his family stock ownership does exercise
complete control of Jarvis Manufacturing Corporation.
The strongest case made out here in favor of an integrated enterprise is the rela-
tionship between New England Web and National Webbing.
As will appear from
the facts related below, the employees involved were or are primarily employees of
New England Web, some of whom later became employees of National Webbing.
No employee of the other Respondent Corporations is involved in the case.
Hirsch
Broadcasting Company, 116 NLRB 1780; Stainless Welded Products, 116 NLRB
791; and Blue Rock Quarry, 116 NLRB 1778, relied upon by the General Counsel,
seemed not to be pertinent here since these are representation cases dealing only with
the appropriateness of collective-bargaining units.
Nor do I find Editorial "El
Imparcial," Inc.,
123 NLRB 1585, controlling here because there all employees
involved were employees of one or the other employer, one of which was found to
be a "corporate affiliate" of the other, and because Impartial, a newspaper pub-
lisher, could not distribute its newspapers except through its corporate affiliate,
their "functions being so integrated as to form one enterprise." I do not believe
that H. N. Thayer Company, 99 NLRB 1122, where two plants were held to con-
stitute a single integrated employer is helpful here, because that case involved
activities of employees against the "integrated employer" amounting to a primary
strike at a primary situs.
In Dearborn Oil and Gas Corporation, et al, 125 NLRB 645, the majority of a
Board panel held:
Generally speaking, in those unfair labor practices cases in which the Board
and the courts have held that a legal entity may be held for the acts of another,
because both constituted a single employer, it appeared that both were not only
subject to common control, but also that a controlling ownership interest in
both companies was held by the same individual or group of individuals [citing
cases].
We believe that it is proper to require that both elements-common
ownership and common control-coexist before we assess joint responsibility.
Any other rule would introduce into the administration of the Act an element
of guilt by "association" based upon the fortuitous circumstance of two respond-
ents having common officers or agents.
In the same case (footnote 10) the Board majority said:
Moreover, it should be noted that, in treating unit issues in representation cases,
the Board is concerned with the degree of integration of operations, and of
community of interest among the employees sought to be represented, and the
fact that all such employees are subject to the same management aids to estab-
lish such integration and community of interest. It is a far different matter,
however, to view common management as conclusive on the question of
liability of one legal entity for the unfair labor practices of another.
9 Counsel for the Respondents stipulated at the hearing that Anthony Quattromant, an
employee of New England Web, during the times material hereto and now was and is a
supervisor within the meaning of Section 2(11) of the Act.
On the basis of the testi-
mony mentioned above and later below, I find that Clarke is also a supervisor because he
acted and acts as Jarvis ' immediate assistant
So far as I can find, from a reading of
the record , the Clarke mentioned as the assistant to Jarvis is the same William Clarke
who has been mentioned above as an officer and director of Tri-Dye Corporation.
1038
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I can find "common ownership" here without difficulty.
My concern lies in the
direction of how far the acts of New England Web, if found to be unfair labor
practices as alleged in the complaint, can go toward holding the other corporate
Respondents liable for the commission of such unfair labor practices.
Perhaps I should have, in this Intermediate Report, discussed the alleged unfair
labor practices before approaching the problem as to whether there is here a single
integrated enterprise.
I shall therefore defer definitive findings in this respect at this
point, but shall set them forth in my concluding findings herein 3
On March 9, 1960,4 the Union filed a petition for certification as representative
of the production employees of New England Web, including 17 weavers. The peti-
tion was filed with the Rhode Island State Labor Relations Board.
After an election
conducted on April 1 by the State Board, the Union was certified as the exclusive
collective-bargaining agent of these employees by the State Board on April 8.
A letter or statement dated March 30, 1960, permissible under Section 8(c) of
the Act, was sent by Jarvis for the Company to the employees of New England
Web.
This communication, circulated while the strike was on and the day before
the State Board election, reads as follows:
MARCH 30, 1960.
TO OUR EMPLOYEES:
On Friday, April 1, 1960, the Rhode Island State Labor Relations Board will
hold an election on our premises from 2:30 p.m. to 3:30 p.m. to determine by
secret ballot whether our employees decide to be represented by Textile Workers
Union of America, AFL, CIO for the purpose of collective bargaining in re-
spect to rates of pay, wages, hours of employment, and other conditions of
employment.
The names of those eligible to vote has been posted upon the
bulletin board of the plant.
This is a most important decision for you to make and we urgently request
you to vote and express your preference as to whether you will be represented
by a Union or deal with the Company directly as you have had in the past.
You have a right to vote by secret ballot, that is, nobody knows how you vote.
You can vote NO even though you have signed a Union authorization card
in the past.
You all know that some of our employees are not now working through
their own choice.
Because of many complaints and loss of customers due to
faulty weaving, it became necessary to change the piece rate system to the
hourly rate. I tried to explain this to the weavers and to point out that while
it was necessary to do this because the Company lost a considerable amount of
money because of the large quantity of waste, that some weavers would benefit
by an increase in their hourly rate. I also tried to point out that the workload
would be reduced in many cases because past experience showed that proper
web could not be manufactured where some weavers were trying to run 5 looms.
In spite of this, some employees left their jobs and induced others to leave
their jobs, without properly explaining to the other weavers just what we were
trying to accomplish.
Keep this in mind, the Company is trying to provide work for you.
We can
do this only if our product is of good quality and can be sold without customer
rejects due to poor workmanship.
We feel that all of you agree with what the
Company is trying to do. The Weavers will be well paid to produce better web
with less imperfections that will make for easier and more pleasant work for
the employees who will have to handle this web after it is woven.
The rate of pay which we offer the weavers compares very favorably with
the rates paid to weavers in Union shops in this area.
We feel that they are
being treated fairly.
It was only the weavers who walked out and we cannot understand why they
did so because approximately half of these weavers would receive an increase
in wages earned over those that they previously made working on a piece rate.
This is a small Company and I am sure that after the personal relationship
that each individual has had directly with management, you will want it to
continue.
Be sure to vote on Friday.
Very truly yours,
NEW ENGLAND WEB, INC.,
C. W. JARVIS.
8 See infra.
Unless otherwise shown, all dates hereinafter mentioned are for the year 1960
NEW ENGLAND WEB, INC., ETC.
1039
The 17 weavers went out on strike against New England Web on March 9 in
protest against a change in the manner or method of being paid; that is, being
paid at hourly rates instead of piece rates.
The looms not being run, other em-
ployees were affected.
The General Counsel contends that the strike was an eco-
nomic strike, but that it was converted to an unfair labor practice strike by a lockout
or discharge of 29 employees on April 2 (the day after the election) and other
unfair labor practices engaged in by Clarence Jarvis and Clarke on March 10 and 16.
No employee of any Respondent other than New England Web was involved in
the election or the strike.
No employee worked at New England Web during the week beginning Monday,
April 4, because the looms were not running, and consequently there was no work
available for employees who customarily make spools and warps, sew, and inspect
braids.
On April 7, it was decided that New England Web would run out the
orders on its looms and, when the work was run out, liquidate the business.
The
employees through the Union were so advised.
On April 16, three employees were
at work, eight on April 23, until, as the orders on the looms were run out, there
were two or three at work during the time of the hearing (August 30-September 2).
A few employees of New England were hired by National; for instance, Francis
Garceau, a striker who was called back to work on April 23, went to work for
National Webbing on August 15; Gerard Beaucage, a striker who returned to work
for New England Web, went to work for National Webbing in May; 2i
weeks
after the election Florence Calabro was put to work by National Webbing, which
also hired Michael Laptew, a weaver, in late July or early August, and James Buco on
about April 14.
When Buco was hired Joseph Theburge, Alice Guilbeault,
Garceau, and Beaucage either were at work or reported shortly thereafter.
Insofar as Tri-Dye Corporation, The Conrad Manufacturing Company, and Jarvis
Manufacturing Corporation are concerned, 1 can find no connection between them
and New England Web or National Webbing to justify a finding that any one of
these Respondents could be tainted by the alleged unfair labor practices. I find
only the "element of guilt by association" mentioned in Dearborn Oil and Gas
Corporation, et al., 125 NLRB 645, which can be "based upon the fortuitous cir-
cumstances of two Respondents having common officers or agents."
With respect
to these three Respondents, I shall recommend the dismissal of the amended
complaint as to them.
The facts concerning the relationship between New England Web and National
Webbing (more fully discussed infra) present a closer problem.
Common control
and common ownership are here present, together with enough facts to justify a pre-
sumption, at least, that the community of interest which can be found from the
identical operations and policy control of these two enterprises, together with
the shifting of weaving operations from, the premises of one to the premises of the
other, could or does make them a common or single enterprise resulting in joint
responsibility.
See Editorial "El Impartial," Inc., 123 NLRB 1585, and National
Shoes, Inc., et al., 103 NLRB 438, supra, at 441.
This presumption I shall find is
rebutted by the preponderance of evidence .5
5 At the hearing, counsel for the General Counsel moved to amend the amended com-
plaint to allege "That the Respondent National Webbing, Inc , is a successor to the Re-
spondent New England Web, Inc " The motion to amend was made after the completion
of the General Counsel's case and on the last day of hearing I denied the motion to
amend because nothing in the record appears to substantiate the fact that National
Webbing had or has succeeded New England Web in business but, on the contrary, the
uncontradicted testimony shows that New England Web is still in business at the time.
In order for there to be a true successorship, it seems to me that it must be shown that
one employer ceased doing a business which was assumed by a successor
This situation
is exemplified in Dickey, formerly d/b/a Ohio Hoist and Mfg
Co v N L R B , 217 F. 2d
652 (C A 6), wherein the court said:
-
We think the cases [this and Mount Hope Finishing Company v. N.L R B, 211 F. 2d
365 (C.A. 4) ] are clearly distinguishable.
Here not only did Dickey perform the
same functions in the corporation that he performed in the partnership, but the per-
sonnel remained
the same, the corporation occupied the same plant as a partnership
and continued to do the same kind of work.
With one exception the employees who
had worked for the partnership were employed by the corporation
We think these
facts amply support the finding that the corporation was a continuance of the
partnership . .
1040
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The strike and union organizational activities-union majority on
March 9 and April 1
About 2 p.m. on Tuesday, March 8, Clarence Jarvis spoke to two groups of weav-
ers in his office, three in one group and two in the other, and informed them in
effect that in order to obtain better quality production and to avoid losses caused
by the return of rejected merchandise by customers, it had been decided to pay
weavers at a basic hourly rate of pay rather than at piecework rates; that since
September 1959, the quality of rejects had increased, and that he had negotiated
-a chattel mortgage-"we borrowed $15,000 to get ourselves out of this mess."
Jarvis said he started out by telling them that the Company had reached the point
where something had to be done about the large amount of rejected material that
had been manufactured:
I showed them the books of the Company; I showed them our performance
for the month of February, that was atrocious; I showed them letters; I showed
them returns of merchandise for credit. I even went so far as to show them
some of the tax returns, to show them that this was not a sham deal and I was
telling them nothing but the truth, and not anything I wanted to sell them;
I told them that we had reached a point where some of our customers
just refused to take goods that were manufactured at New England Web, [he
showed them rejected merchandise and informed them of changes to be
made]-that we were going to change from a piecework to a day rate [which]
would actually mean an increase to some of the people who were more interested
in the caliber of their work and had interest in their work.
The hourly rates set by him were quoted by Jarvis to the first-shift weavers in
attendance at the meeting, and the rates were such, he informed them, "that some
of the weavers there at that meeting were actually going to get an increase."
He intended to pay, he said, $1.80 per hour for work on one type of loom, work on
another would pay $1.85, and another would pay $1.90, "but the majority of them
were $1.90" for the first shift.
He proposed a differential of 10 cents an hour for
weavers on the second shift and 20 cents per hour for weavers on the third shift.
Although, Jarvis said, he had asked Quattromani to send weavers from other
shifts in to see him, no weaver from either the second or the third shifts came to
his office.
Jarvis learned subsequently that the looms used on the third shift were
never started that day but the employees left their work.
Clearly, the strike was called because Jarvis had informed five weavers, who
in turn told others, that unless the quality of finished goods was improved he could
not continue New England Web in business.
The strike was called precipitately
because the weavers adopted the rumor that they would suffer decreased earnings
if paid on an hourly rate basis.
At no time does it appear that any employee or
a union representative took advantage of the opportunity offered to them to ex-
amine the books of this corporation.
When Jarvis arrived at the plant on the following morning, March 9, no looms
were running.
A group of employees, headed by William Abate, were waiting for
him.
According to Abate, who was accompanied by James Buco, Gerard Beaucage,
Frank Garceau, Pat Lisi, Eugene Theberge, Manual Barsellos, Alice Guilbeault,
Mike Laptew, Alfred Kennedy, and Walter Burnett, he asked Jarvis "if he would
consider raising the wages that he wanted to give us; and he said no, that the
proposal stood as it was."
Jarvis said that at this meeting he again repeated the
proposal and the reasons therefor as stated to the groups of weavers he had met the
day before.
Immediately after the meeting with Jarvis, the group adjourned to a nearby cafe,
the Idle Hour Club, where they decided to call in the Textile Workers Union to
represent them.
They communicated with Samuel Azzinaro, business manager of
the Rhode Island State Joint Board who in turn telephoned Ferdinand Sylvia, an
International representative of the Union, informed him of the situation, that the
headquarters of the strikers was at the Idle Hour Cafe in Pawtucket, and instructed
him to take over the situation.
On the basis of information received from Azzinaro
that the strikers had signed union membership cards or applications, Sylvia wrote,
prepared, and mailed a letter to New England Web and another letter to the State
Labor Relations Board.
The letter to the Company, addressed to Mr. Clarence
Jarvis, read as follows:
Please be advised that a majority of your employees have joined the Textile
Workers Union of America, AFL-CIO.
NEW ENGLAND WEB, INC., ETC.
1041
We request a conference with you. at your. earliest convenience to negotiate
a Union Contract.
May we hear from you as soon as possible on this matter.
The letter sent to the State Labor Relations Board was in the form of a petition for
investigation and certification of representatives.
Sylvia also telephoned Jarvis after
writing these letters, and informed him that the Union represented a majority of the
employees, of New England Web based on applications for membership received
by the Union, and informed Jarvis that he had mailed a letter to him in which he
requested that the Company recognize the Union and meet with the Union.
He
said that Jarvis replied that the matter was in the hands of his attorney. Introduced
into evidence at the hearing were 13 signed individual authorization cards bearing
the date of March 9, 1960, all of which, the testimony reflects, were signed by em-
ployees at the meeting at the Idle Hour Club on that day.
Also in evidence are six
undated authorization cards signed by Marguerite Cirillo, Gertrude Marcinkwicz,
Alice Guilbeault, Florence Calabro, Alfred Kennedy, and James Welch.
The testi-
mony of each of these is to the effect that each one of them signed his or her author-
ization card on March 9. The union claim is that it held, on March 9, 19' signed
cards authorizing it to represent these employees of New England Web for the
purposes of collective bargaining.
On March 8 it was stipulated at the hearing
that New England Web employed 35 employees within the bargaining unit, so that
the 19 signed authorization cards, if then held and if valid, represented a majority
of the employees within the unit on March 8.
Francis P. McEntee, a union representative, met with the employees at the Idle
,Hour on the afternoon of March 9, and on that day a picket line was established
by the strikers before the premises of New England Web.
At the request of Sylvia on behalf of the strikers, members of the Union, an in-
formal meeting was held at the offices of the State Labor Relations Board on
March 16, at which a representative of the State Board was present, Jarvis and Owen
Reid, attorney for the Company were present for the Company, and Sylvia and a
committee represented the Union.
According to Sylvia, Attorney Reid said that he
doubted that the Union represented the majority; that later on during the discussion
the representative of the Board said that the Union did have the evidence that they
represented the group and that Sylvia suggested that he would be willing to rely
on a card check by an impartial third person.
This suggestion was refused, and
subsequently the Board directed an election among the employees for the purpose of
determining whether or not a majority of the employees in the unit desired to be
represented by the Union.
The report upon secret ballot by the State Board as to
the result of the election held on April 1 shows that out of 35 eligible to vote, 34
ballots were cast of which 18 were for the Union, 12 employees voted for no union,
and 4 ballots were challenged.
Board certification describes the unit as "all produc-
tion workers" of New England Web, Inc.
The amended complaint alleges:
8. All production and maintenance employees of Respondent New England
employed at its Pawtucket plant, exclusive of clerical work employees, pro-
fessional employees, guards, and all supervisors as defined in Section 2(11) of
the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
The answer of the Respondent, New England Web, admits the allegations of the
complaint in this respect, and the Trial Examiner finds that such a unit is an ap-
propriate unit for the purposes of collective bargaining.
The certification of the
Union by the State Board is dated April 11, 1960.6
"Although Union Representative Sylvia testified that he had suggested a•card check both
at the informal meeting at the State Board on March 16 and again at the formal hearing
before the Board on March 23, Jarvis denied having heard Sylvia make any such request
or suggestion
It seems to me that it makes no difference whether such request was re-
fused by Attorney Reid, since all of the parties were at the State Board pursuant to the
request of the Union, and certainly the Respondents, under the circumstances, were en-
titled to have the representation question settled by a Board election if their attorney
had any reservation concerning their validity. If the request or demand or suggestion
was made by Sylvia, I doubt that it constituted a valid demand for unconditional recogni-
tion on the basis of what the cards would show.
It is true that the facts show that at
least since March 9 the Union had been seeking recognition.
I regard the claim of Sylvia
and his request for a card check as statements which might suggest one method to deter-
634449-62-vol. 135-67
1042
DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
C. Interference, intimidation, and coercion
The complaint alleges that on or about March 10, 16, and other dates in March
and April 1960, Clarence Jarvis solicited strikers to abandon the strike and return
to work without the Union; promised and offered shift preferences to strikers in
order to persuade them to abandon the strike and return to work without the Union;
offered to meet the strikers without the Union to discuss wages, hours, and other
conditions of employment; threatened strikers that Respondents, and more particu-
larly Respondent New England, would not recognize a union and would not rehire
certain strikers; and told employees that he would close the plant if the Union was
selected as the employees' bargaining representative.
The complaint further alleges
that William Clarke, as an agent of the Respondents, on or about March 10 and
16 solicited strikers to abandon the strike and return to work without the Union; on
March 16, offered and promised shift preferences and monetary rewards to strikers
in order to persuade them to abandon the strike and return to work without the
Union; threatened strikers that Respondents, and more particularly Respondent
New England, would not rehire certain strikers; and on or about March 10 and 16,
told employees that the Respondents, and more particularly Respondent New Eng-
land, would establish a credit union and "shop union" if the employees would dis-
associate themselves from the Union.7
According to Pasco Lisi, a weaver, about 4 o'clock on the afternoon of March 9,
after the picket line had been set up outside the premises of New England,
Mr. Jarvis came out with a smile on his face, and he said to me, and I think
he told the other fellows, that he was not going to let the Union in the shop,
he would lock the doors, and it would be a cold winter; that was March 9.
Further, according to Lisi, on March 10, William Clarke told him, while he was
picketing, that
You boys are foolish to go on strike
. because Mr. Jarvis is not going to
let the Union in; the work he can't do downstairs he is going to do upstairs.
Lisi also testified that on March 10, and other dates, Jarvis asked him and others
why they did not go back to work and asked them whether they liked the shop and
did not want to work and further that "you can come back to work if the Union
don't get in there."
Lisi testified to certain conversations between him and Clarke
and Jarvis on March 16.
He said that Clarke came over to him with a big smile
on his face, remarked that he knew Lisi had not been working and said "how about
it, do you need some money?" to which Lisi said he laughed and said that he did
not need "your money." Lisi testified: "In other words, if I wanted to go to work,
I could have said I don't want the Union, and expect it." And then a moment later
said "I mean, I don't know what he meant, whether he was kidding or what; but that
is what he told me." There was no conjecture or surmise in the testimony of Clarke
concerning this conversation.
He said that it was a rather rainy or bleak morning,
that he parked his car, walked across the street, and saw Lisi on the corner and
wished him good morning, and stopped to speak to him and "pass the time of day,"
when Lisi asked him for a cigarette .
He said he furnished Lisi with a cigarette and
as they were standing there he asked Lisi if he was out of cigarettes, that he gave
Lisi a package containing 8 or 10 cigarettes and then asked Lisi if he were broke
and would a little money help him out to which Lisi replied "No, thank you, Mr.
Clarke.
I get my Government check tomorrow morning."
Clarke denied that he
ever offered Lisi a reward if he would leave the Union, that he had ever discussed
the Union with him at all, that he had ever threatened him with punishment if he
did vote for the Union, or ever offered him any reward if he would not vote for the
Union.
Lisi testified with respect to another conversation with Jarvis on that day and a
subsequent conversation with Clarke.
He said that he pleaded with Jarvis to let
the Union in the shop to which Jarvis replied that he was not going to put the Union
in New England Web because "if I do it's going to go right through my shops." Lisi
said further that, following his conversation with Jarvis:
mine the Union's representation status and not as a demand for recognition
The
Respondents, particularly New England Web, preferred the alternative method of a formal
Board procedure
Cf. Barney's Supercenter, Inc, 128 NLRB 1325.
a Although no specific acts are alleged as to Supervisor Anthony Quattromani in the
original complaint or any amended complaint, it should be noted that William Abate, a
weaver; testified that on a day during the week before the 'State Board election, in re-
sponse to a telephone call from Quattromani, Abate called at his home where Quattromani
told him that if the Union got in Mr. Jarvis would close his plant.
NEW-ENGLAND WEB, INC., ETC.
1043
Mr. Clarke came out .maybe a half hour later ,. or an hour later, he says to me,
he says "Pat, Mr. Jarvis would like to meet the weavers and the quillers at a
certain place," he says, "but he didn't want Jerry Beaucage , William Abate, or
Alfred Kennedy there at the meeting [union committee members]" ; and he said
to tell the boys he would meet them anywhere .
"But," Mr. Clarke said to me,
"if you do decide, call up Mr. Lynch at Barrington, we'll get in contact."
He
says "tell the fellows that Mr . Jarvis said we'll have our own credit union, our
own grievance committee, our own shop union."
I said to Mr. Clarke that the
fellows wouldn't go along with that because they know Mr. Jarvis had made
promises that he never kept to the boys .
Mr. Clarke used to say, Mr. Jarvis
said this, and it never came out.
So I went back to the union hall, and I
told Mr. Sylvia about everything that had happened , about the money, about
the telephone call I would have to make to Mr. Clarke at Barrington ; in other
words, it was Mr. Clarke I was calling , not Mr. Lynch, it was Mr. Clarke. So
I told him the boys wouldn't go for it.
And he said "well, try to see, because
we want the boys to come back to work."
Although there is apparent confusion on 'the ' record as to whether Lisi had the
above-reported conversation with Jarvis or Clarke, it was with Clarke , who is said
by Lisi to have repeated what Jarvis had told Clarke.
Jarvis testified that he had no conversation with Lisi on March 9 , but did engage
in conversation with him on March 16 after the meeting at the State Labor Relations
Board.
Jarvis said that he commented on the wisdom of the Union in making
Kennedy a representative of the employees and then he and Lisi walked away from
Kennedy who was a few feet away , when Lisi told him (quoting Jarvis):
That some of the employees were pretty darn disgusted with the way
things were going, and that he and a few others wanted to talk to me privately;
I told him that anytime that he or his employees wanted to talk to me, they
can come right in to that office .
I says "you could call me, you can do any-
thing you want."
And I says "furthermore, if you call me," I says, "and you
don't want to tell them who you are," I says, "this girl is not going to take any
calls from you for the simple reason that 2 or 3 days prior to this walkout I
got a call from a person who wouldn't tell me who he was, threatening me that
they knew that we had shipped some goods out of National that should have
been from New England, or vice -versa; and I told him you go , in a nice, polite
way," I says, "you go ahead, you can talk to anybody you want to, you can
threaten me," I says, "anything we've ever done here has been done in a
proper way"; I says "don't call me anymore ; in fact, I'm instructing my girls
not to take any calls from you unless you tell me who you are."
I says, "I
don't want any more of these calls from unknown persons." So, in talking to
Lisi, I says, "if you don't want to use your own name," I says, "use Mr. Lynch.
If the girl tells me that there is a Mr. Lynch on the phone, I'll know who it
was."
That was all that was said in this conversation.
According to Lisi, Jarvis, after the beginning of the strike offered day jobs to
him and other employees .
Jarvis denied that he had told Lisi that he would meet
with the weavers except for Kennedy , Beaucage, and Abate ; that he had ever prom-
ised Lisi a job if he returned without the Union or that he had made any threat to
Lisi if he continued his union activity or any promise to Lisi if the latter would not
vote for the Union.
I am not inclined to take the testimony of Lisi at full face value .
I can under-
stand that Jarvis and Welch , in going into the plant in the morning or coming out
in the afternoon might have occasion to gossip with the pickets and to comment with
respect to the progress of the strike .
I believe that Lisi testified according to what
he thought Jarvis and Clarke meant or intended to convey at the times of the several
conversations he had with them, without regard to being too accurate as to what
actually was said, and that the testimony of Jarvis and Welch regarding what actually
occurred, taken in the light of all their testimony concerning other acts attributed
to them, is more reliable than that of Lisi.
Nellie Scholes, a witness called by the General Counsel , was employed by New
England ,Web up until the day of the strike and subsequently was employed by Na-
tional Web where she was working at the time of the hearing herein.
On direct
examination she testified that on the Monday after she reported for work she.was
told by Superintendent. Quattromani
"that the place wasn't running until every-
thing had been settled."
After reading a pretrial statement, given by .her to a'Board
investigator, she said her recollection was refreshed-she said that Quattromani
had said ". . -that until everything was. straightened out, settled , until they, found
out whether there was going to be a
'union-or no union ': :.-there would be'no
1044
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work."
On cross-examination she said, referring to Quattromani , "He said until
everything was straight and settled , union or no union , we wouldn't be working for
the New England Web."
About the most that can be inferred from the testimony of
Nellie Scholes is that she was informed by the superintendent that while the plant
was shut down during the strike there would be no work available for her or other
employees.
Marguerite Cirillo was employed for a period of about 2 years by New England
Web up until the time of the strike .
She testified as to several statements made to
her or in her presence by Jarvis. In response to her request for a 5 -cent raise
made during the strike Jarvis asked her to wait until "everything was over and he
would see what he could do for me." She said that Jarvis had talked to various
groups of employees about the Union,
,and about what they would do and wouldn't do . . . he told us about the
Union, that if they got in that they would start taking 75 cents a month, and
then they take more; and that they could demand more, and he could not
afford to run under a union . . . he said quite a lot, concerning the-voting,
but not how to vote and when to vote, or anything, and tell us exactly what to
do
. he just told us when we go in there to vote to do what was right;
and if the Union lost or if he won out, he would take care of us if we stood
by him.
She said that about 2 days before the election a group was called into Jarvis ' office,
that he had his books on the desk, and told these employees that they could examine
the books if they wanted to and told them further that if the Union got in he could
not work under their conditions and he would close the plant .
She said that on the
day of the election Jarvis told a group of employees "when you go in, do what is
right," and further that if the Union did not get in he would stand by them and they
would all work together and get along.
After the election, Mrs. Cirillo said that
Jarvis remarked to a group that they knew the answer and said, "Now . . I can't
work under these conditions."
At that point someone spoke up and asked if there
would be any work Monday to which Jarvis replied that there would be no work
until further notice.
Jarvis testified that Cirillo did ask him for a wage increase and
he replied that he could not give her any increase at that time; he denied that he
ever said to her that he could not afford to run under union conditions or that he
would close up.
He denied her statement that he had made such remarks to other
employees in her presence .
Mrs. Cirillo was a warper tender, and therefore there
was no work for her at New England Web during the time the weavers were on
strike.
Walter Noelte, a long chain beamer and warper, was employed at New England
Web on the day after the strike.
Quattromani had laid him off for lack of work and
at that time Noelte, who had learned that an employee of either Conrad Manu-
facturing or Jarvis Manufacturing was ill, asked if he could take the job until that
employee returned, 'and he was given the job.
He said that while he was on that job
Jarvis on one occasion asked him if he had ever gone to any of the union meetings
"and I said no." On April 5 or 6 the absent employee returned to work and Noelte
was told by Jarvis that there was no work; he asked Jarvis if he could be used in
another department to which, he said, Jarvis replied, "No, there would be a $500 fine."
Noelte did not ask what Jarvis meant, nor did he know himself. Before Noelte went
to work in the place of the absent employee, he received permission of the pickets to
work provided he did not work for New England Web. Subsequently he worked the
first 2 weeks in July for either Conrad Manufacturing or Jarvis Manufacturing during
the time one of their employees was on vacation.
Manuel Barsellos testified that on the morning of March 9, when he was leaving
the plant with the rest of the weavers, he was stopped by Jarvis, Clarke, and Quat-
tromani and was asked why he did not go back to work to which he replied that he
did not want to go back
'because the majority of the group walked out; he said
"naturally" he would like to work because his wife was expecting a baby and that
Jarvis then said "That's right, effective as of right now there won't be any more
Blue Cross."
Barsellos further testified that about a week after the beginning of
the strike he received a telephone call from Jarvis who told him that he wanted
to know what side he was on-"if I was with him or against him."
To which he
replied that he was willing to work and wanted to go back , and that Jarvis then
told him to hold on and wait until things straightened out.
The General Counsel called Gertrude Marcinkwicz , a quiller tender employed by
New England Web until March 10 when she refused to cross the picket line. She
said that she telephoned Jarvis about a week after the election , after she had been
told by someone that another employee had been put to work in her place, and
NEW ENGLAND WEB, INC., ETC .
1045
asked him if her job was available to which she said Jarvis replied that he had not
put anyone on her job and that her former job was not available-he suggested that
she look for another job.
On cross-examination she conceded that after March 10
work was available for her that she chose not to cross the picket (line.
That "there
was work available for me up to the election; after the election, there was no work
for me." I cannot infer, as I assume the General Counsel wishes me to do, that
this employee was discriminated against by reason of her union partisanship.
James Welch, a weaver who went on strike on March 9, was told on March 8 by
Stanley Gorcey, loom fixer, and Gene Theberge, a weaver, that "we took a cut in
pay; so I refused to turn over the looms."
Welch testified to the conversation re-
ferred to by Lisi on March 16 in which Jarvis is alleged to have said "break away
from the union, we'll have our own shop union and our own credits set up" but
that he did not want Kennedy, Abate, or Beaucage at the meeting; he would "meet
them anywhere, to call his office and say that Mr. Lynch was calling and his secre-
tary would know what it was all about; that they were supposed to call that eve-
ning."
Welch said that Jarvis remarked that Kennedy, Beaucage, and Abate were
troublemakers.
He said that 3 or 4 days after that Clarke said to him "why not
break away from the union, go back in."
Welch said that during the course of the
conversation with Jarvis on March 16 he asked Jarvis what guarantee Jarvis was
going to give the men if they went back to work without the Union-"what guaran-
tee are you going to give us that you won't fire us, each one separate?"
He said that
Jarvis signed on the back of the union card "I will not fire you" and signed his
name; that Welch gave it to Union Representative Sylvia.
He also said that there
was some discussion between Jarvis, Lisi, and himself about "if we broke away,
what would be the rate?" To which Jarvis replied, "$1.80, or $1.85, and $1.95."
Jarvis denied that he had said anything to Welch about breaking away from the
Union or that he mentioned a company union or credit union .
He said that Welch
told him that if he, Welch, ever went back to work, Jarvis would fire him to which
he replied that Welch had worked for the Company for a long time, that if he was ever
going to fire him he would have done so at the time he was doing poor work, to
which Welch said "well, put it in writing," whereupon Welch handed him some piece
of material and he scribbled on the back of it something to the effect of "I will not
fire you"; that the whole episode was carried on in a jocular manner.
The other
statements attributed to him by Welch were denied by Jarvis. It appears that the
first time he was aware that he was being charged with having made such state-
ments was upon receipt of a copy of the charge filed by the Union, and that at no
time did a union representative ever complain to him' concerning any statements
made by him to employees.
Welch testified to a conversation he said he had with
Clarke on or about March 18 when he said Clarke asked him why he did not break
away from the Union and come in, that he had a day job to which he replied,
"You're a hot sketch . . . them looms have been empty for 3 or 4 months, and now
you're offering me a day job."
Clarke denied these statements attributed to him
by Welch.
Because it is important to decide (among other issues present) whether the state-
ments or some of them attributed to management constitute substantial evidence of
unfair labor practices if made at the times and places as alleged are such as to sup-
port an order. based on violations of Section 8(a)(1), I have perhaps set out the
testimony at too great length.
That the use of such tactics as alleged herein by an employer, if proven, consti-
tutes interference with and restraint and coercion of employees in their exercise of
the rights guaranteed them under Section 7 of the Act, and therefore a violation of
Section 8(a)(I), has long been settled.
Cases dealing with threats to close a plant,
among others are N.L.R.B. v. Aintree Corporation, 132 F. 2d 469, 471 (C.A. 7),
cert. denied 318 U.S. 774; N.L.R.B. v. The Hopper Manufacturing Company, 170 F.
2d 962, 963 (C.A. 6) ; N.L.R.B. v. W. T. Grant Company, 199 F. 2d 711, 712 (C.A. 9),
cert. denied 344 U.S. 928.
Cases involving promise of benefits for repudiating a
union include N.L.R.B. v. Howell Chevrolet Company, 204 F. 2d 79, 83 (C.A. 9),
affd. 346 U.S. 482; N.L.R.B. v. Pop'eil Brothers, Inc., 216 F. 2d 66, 67-68 (C.A. 7);
N.L.R.B. v. Harry Epstein, et al. d/b/a Top Mode Manufacturing Co., 203 F. 2d
482, 484 (C.A. 3), cert. denied 347 U.S. 912. Solicitation of employees to oppose a
union include N.L.R.B. v. Bradley Washfountain Co.,
192 F. 2d 144, 152-153
(C.A. 7); N.L.R.B. V. Harry Epstein, et al., supra.
Request to employees to abandon
a strike is dealt with in N.L.R.B. v. Bradley Washfountain Co., supra; N.L.R.B. v.
Montgomery Ward & Co., 1133 F. 2d 676, 680-682 (C.A. 9); and N.L.R.B. v. Clear-
field Cheese Co., Inc., 213 F. 2d 70, 73 (C.A. 3).
Statements made by Jarvis or Clarke on and after Monday, April 4, concerning
their future plans as to the operation of the business, were made generally in re-
sponse to inquiries from employees of New England Web. It seems reasonable to
1046
DECISIONS-OF NATIONAL LABOR RELATIONS BOARD
infer that on April 4 and up until the time the Union agreed with Jarvis to return
some of the strikers to work in order to run out the orders on the looms, that Jarvis
and his associates had not definitely decided whether New England Web could
profitably continue in business or not.
The adamant stand of the Union regarding
wages, discussed below, and the continuation of the strike because of the position
of the Union regarding wages, impelled management to continue the process of
running out orders looking toward the closing or liquidation of New England Web.
I cannot find the "substantial evidence" necessary to support a finding that the state-
ments and other actions attributed to Jarvis and Clarke constitute proof of inter-
ference, intimidation, or coercion within the meaning of Section 7 of the Act.
Affirmatively, I find that the General Counsel has failed to sustain the burden of
proof necessary to support the allegations of the amended complaint. Such ques-
tions of credibility as have appeared are resolved in favor of Clarke and Jarvis as
against testimony given by witnesses called by the General Counsel. I believe that
in many respects the memory of Jarvis and Clarke was far better than that of
certain witnesses including Lisi, Welch, and Cirillo.
The testimony of these wit-
nesses particularly did not impress me because of their demeanor at times, such
as frequent hesitancy in answering questions, vagueness on material points, and
obvious conclusions and interpretations of their own as to statements attributed
to Jarvis or Clarke. In a word, I felt at the hearing they were not reliable witnesses.8
D. Recognition and bargaining
When the result of the election of April 1 was announced, Jarvis and his colleagues
immediately recognized the Union as the representative of the employees of New
England Web in the designated unit .9
Business Manager Samuel Azzinaro arranged
with Attorney Reid for a meeting in the latter's office on the afternoon of April 5.
At that meeting Business Manager Azzinaro and one Simas represented the Union,
and Jarvis and Attorney Reid represented the Company.
Azzinaro said that at this
meeting he was advised that the Company was going to liquidate and that six weav-
ers would be needed at the plant, two on each shift, for the purpose of running out
the beams that were already on the machines; that it would take anywhere from
4 to 6 weeks to do that, and then the plant would be closed down.
He said that
Jarvis stated that New England Web had lost its largest customer, that the Company
had lost other customers, the result being that they had lost business which they
would not be able to get back.
The parties met again in Mr. Reid's office on April 7. Jarvis and Reid repre-
sented New England Web, and Azzinaro, Sylvia, and the Committee, Kennedy, Beau-
cage, and Abate, represented the Union.
At this meeting, according to Azzinaro, the Union was again informed that the
Company was going to run out its goods or what beams were in the machines, that
it would take from 4 to 6 weeks, and that Jarvis offered a rate of pay for the
workers to come back to work, and that it was agreed that the six workers returned
would be recalled according to seniority.
Further, according to Azzinaro, after
the meeting and after the employees had held a meeting at the Idle Hour Club, a
telephone call was made to Attorney Reid who was asked if the Company would
give assurance to the workers that it would at least make an attempt to continue
in business; that Reid referred Azzinaro to Jarvis; Azzinaro and Sylvia both talked
to Jarvis, whose position was that he would not give any such assurance, but that
it had been determined .that "he was going to close, and what was the sense of mak-
ing any statement."
Under date of April 13, Azzinaro, on behalf of the Union, addressed a letter to
New England Web, as follows:
Rhode Island State Joint Board, Textile Workers Union of America, AFL-
CIO, the authorized collective bargaining representative of certain of your
employees now on strike, whose names are set forth on the list attached hereto,
hereby informs you on behalf of said employees that said strike which com-
8 Bryan Brothers Packing Company, 129 NLRB 2,85; Morris and David Yoseph, d/b/a
M Yoseph Bag Company, 128 NLRB 211
6 As noted above. Sylvia claimed that he has suggested a card check at a meeting with
a representative of the State Labor Relations Board, which was refused by Reid
Samuel
Azzinaro, business manager for the Union, testified that lie spoke to Mr Reid, the attorney
for the Company, on March 11 and asked if he would consider a card check to which
Attorney Reid replied that he would not but that however lie would attend the hearing
which had been set by the State Board
The cards were never offered for examination.
NEW ENGLAND WEB, INC., ETC.
1047
menced on or about Wednesday, March 9, 1960, is terminated and that said
employees hereby request reinstatement to the jobs they held at the commence-
ment of the strike or to substantially equivalent employment.io
Under date of April 13, each of the employees named in the list attached to
Azzinaro's letter of that date, except Barsellos and Burnett, mailed the following
registered letter to the Company:
As an employee of the Company who has been on strike since, on or about
Wednesday, March 9, 1960, I hereby inform you that I have severed any
connection with said strike which I understand has been terminated also in my
behalf by my collective bargaining representative, Rhode Island State Joint
Board, Textile Workers Union of America, AFL-CIO, and I hereby request
reinstatement to the job I held with the Company at the commencement of the
strike or to substantially equivalent employment. -
A group of some 13 employees led by Sylvia went to the plant of New England
Web on that day for the purpose of requesting reinstatement and in the absence of
Jarvis were met by Clarke.
Under date of April 14, Attorney Reid, on behalf of New England Web, Inc.,
addressed the following letter to Azzinaro:
We have had several conferences with regard to the run out of the work at
New England Web, Inc., none of which have evidently been acceptable to the
former employees. I am advised by Mr. Jarvis that there is work available at
the plant to be run out.
The rate of pay for weavers will be $1.90 per hour
on the first shift, $2 per hour on the second shift, and $2.10 on the third
shift.
We wish to make it clear that we can give no assurance as to how long
this work will be available and we want this distinctly understood.
We had talked before about taking back six weavers, running two on each
shift, with six other weavers coming in for the second week and thereby run-
ning alternately.
Mr. Jarvis frankly feels that this is not a workable plan
I
think that the only way that a work schedule can be worked out is to have those
weavers who are interested in running out the existing work apply directly to
Mr. Jarvis and learn from him what jobs are available on what shifts.
This
will save a considerable amount of telephoning between us, and if these people
are sincere in desiring work, it will make it available to them.
We want to stress again that the work is to be run out and Mr. Jarvis will
give no assurance as to how long it will be available.
What I have outlined in
this letter will hold good until Monday, April' 18.
According to Azzinaro, he telephoned Reid on May 11, "for the express purpose
of negotiating a contract with the Company, and also advised him that the Union
was filing unfair labor charges against the Company."
Reid inquired as to the
sense of meeting if charges were to be filed but did agree to meet on May 12. At
the May 12 meeting, according to Azzinaro, the Company repeated its intention to
close down the plant.ii
Francis McEntee, assistant manager for the Union, was
present at the meeting of May 12.
He said that the discussion then centered around
the fact that the Union had filed an unfair labor practice charge against the Com-
pany and the Company was unwilling to negotiate any contract
but after some discussion, they said they would discuss the contract; and since
we had nothing in writing in formal contract, Mr. Reid requested that we send
him a copy through [sic] of the formal contract.
McEntee subsequently mailed a copy of a proposed contract to Reid.
10 The list referred to in this letter showed the following names of employees Barsellos,
Brice, Beaucage, Garceau, Guilbeault, Marcmkwicz, Trazi, Abate, List, Gutierres, Baker,
Laptew, Kennedy, Welch, Wright, Theberge, and Burnett
n It will be recalled that Jarvis, on March 9, suggested hourly rates to the weavers he
spoke to of $180, $1 85, and $1 90 depending on the types of looms and number of
looms, and in addition to that, a shift differential of 10 cents on top of those rates to
the second shift, and a 20-cent differential for the third shift
Azzinaro, in response to
a question as to whether he had made the statement that the weavers would not go back
to work for those rates because that was what had been offered them before they walked
out, replied:
I may have made this statement, Mr Reid, that it was my opinion that the weavers
had rejected that rate prior to going out, if that was the rate that had been offered,
in my opinion, after going through the strike and winning the election, that they
would not accept it; that was my opinion.
1048
DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
On May 17, McEntee, together with Beaucage and Abate, met with Reid and
Jarvis.
According to McEntee, the company representatives were disturbed about
the fact that the Union had filed an unfair labor practice charge and at first said
they would not discuss the proposed agreement with the unfair labor charge pending,
but that later Mr. Reid agreed to discuss the proposed agreement:
We went through the formality of discussing the contract; and I believe that
the last part of the contract, Termination, management said if they were going
to sign a contract it would be only for the duration of the time the Company
would be in business, and that they would be out of business within 2 weeks,
which would be about June 1.
McEntee said nothing definite was decided on the wage question although the Union
did not take an inflexible position in regard to wages but as far as it was concerned
the wage issue was wide open; that during the consideration of the contract "there
was some discussion on the learner's rate, and we were quite flexible on the question
of wages."
On cross-examination McEntee conceded that the proposed agreement
was discussed section by section and that while no final agreement was reached con-
cerning the terms of a contract, that each section of the proposal had been
considered.
The testimony of Jarvis concerning the May 12 meeting is not at variance with
the testimony of Azzinaro. Jarvis said it was a very brief meeting, that the con-
tract was discussed, that Mr. Reid had asked them to draw one up which was agreed
to, and another meeting was arranged
His testimony regarding the meeting of
May 17 is substantially as follows: Prior to that meeting he had gone over the
provisions of the proposed contract and made certain notes and that at the meeting
the Union brought up the subject of wages; that he understood that the Union
wanted a 20-cent an hour increase across the board and as he understood the de-
mand would amount to more than what was demanded at the time of the strike or
what the weavers could have earned at piecework rates.
He denied the statement
of McEntee that the question of wages was secondary but said that the Union re-
fused to modify its wage demands.
I am not satisfied that the Union had a clear majority as reflected by the author-
ization cards at the time on the morning of March 9, when Sylvia made his tele-
phone call to Jarvis.
Doubt has been cast on the majority question, apparently
Sylvia or the employees did not have an authorization card from Guilbeault or
Foster or Laptew at the time Sylvia made his telephone call to Jarvis.
Of course
Jarvis could not have known this at the time but nevertheless later events reflected
a justification on the part of Jarvis and Reid .to doubt that the Union had an actual
majority at the time of the first demand for recognition on March 9.
The meetings
between the parties in early April were inconclusive but certainly were helpful in
defining the respective positions of Company and Union.
At this time and at all
times subsequent to May 17, it must be remembered that the employees of New
England Web were on strike. I agree with counsel for the Respondents who in his
brief contends that on March 9 and on March 16 at the State Labor Relations
Board, Sylvia was demanding recognition but was not demanding immediate bar-
gaining looking forward to a collective agreement.
Counsel points out that in view
of the fact that the issue to be decided by the State Board was one of eligibility,
Sylvia's gesture concerning the offer of cards to an impartial third person was of
no effect since the Board could not have adopted the offer of the third party check
until it had passed upon the eligibility of those entitled to vote.
As pointed out
by counsel for the Respondent, it was the Union which sought the assistance of the
State Board to determine its status.
Whether at the time the petition for representa-
tion was filed on March 9, the Union had a majority of those employees ultimately
determined to be eligible to vote is not clear from the record, but to me it makes
no particular difference because I do not think the claim of Sylvia on March 9
or his assertions on March 16, at the meeting of the Board, constituted a request to
bargain.
I think the earliest request to bargain was made after the election and
that the Company acceded and did meet the Union in bona fide bargaining.
The
facts belie the contention of the General Counsel that the Respondent refused to
sign a contract until the unfair labor practice charges were disposed of.
Azzinaro,
McEntee, and Jarvis all agreed that there was a full discussion of the proposed
agreement submitted by the Union while the charges were pending.
The General
Counsel says that violations of Section 8(a)(5) should be found, too, because the
Respondent, New England Web, shut down its plant before an impasse in bargaining
had occurred.
But this again is not the fact.
The plant closed down, perforce, on
March 9 because the employees went out on strike and thereafter remained out on
strike.
That the employer was considering or had decided to liquidate its business
NEW ENGLAND WEB, INC., ETC.
1049
sometime after the strike began does not negate the fact that it engaged in collective
bargaining with the Union when it did. I cannot infer bad-faith bargaining simply
because as a matter of economics the Company had decided eventually to terminate
its operations and liquidate its business.12
Then, too, the General Counsel refers
constantly to the Company's action in "shutting down the plant."
The connotation
to be drawn, I assume, is that the Company voluntarily shut down its plant.
Actually operations ceased until about April 14 or 16, when operations were re-
sumed on a curtailed basis.
The strike wasthe proximate cause of the cessation of
manufacture on March 9. I think that the following principles stated by the Board
in Industrial Fabricating, Inc., et al., 119 NLRB 162 at 168, are applicable here:
We agree with the Trial Examiner, for the reasons set forth in his Intermediate
Report and additionally for the reasons found below, that Industrial violated
Section 8(a),(5) and (1) by its unilateral action in April 1954 in shutting the
plant down without notice to the Union, which the Board had certified as the
employees statutory representative.
But unlike the Trial Examiner we further
find that the entire record shows the underlying discriminatory motivation for
Mackniesh's use of the various corporations which he organized and controlled
to effectuate this shutdown.
The Trial Examiner based his refusal to find an 8(a)(3) violation largely
on the holding of the Sixth Circuit in the Adkins Transfer case [126 F. 2d 324],
and also on the holding of the Fourth Circuit in the Mount Hope [211 F. 2d 365]
case.
In the Adkins case, however, the Court pointedly observed on page 328 that
the Company "had no feeling against the labor union," that its "relations
with . . . the Union were friendly and cooperative," and that the indubitable
reason for the Company's shutdown was economic.
And in the Mount Hope
case, the Court was careful to point out at page 374 that the Company had
committed no unfair labor practices and the economic reasons for the shutdown
in fact antedated the Union's organization.
Whether the parties had exhausted the possibilities of good-faith collective bar-
gaining on May 17, is an open question.
The fact remains that, although manage-
ment professed itself to be willing to discuss wages further, the Union at no subse-
quent time requested another meeting.
See Ohio Hoist and Manufacturing Com-
pany, 108 NLRB 561, 571. Cf. Times Publishing Company, et al., 72 NLRB 676,
683, where the Board noted that, in certain situations, a union's attitude during bar-
gaining may be such as to "remove the possibility of negotiation and thus preclude
the existence of a situation in which the employer's good faith can be tested. If it
cannot be tested, its absence can hardly be found."
I find that the General Counsel has failed to establish by a preponderance of the
evidence that the Respondent, New England Web, or any one of the other Respondent
Corporations, failed to bargain collectively in good faith with the Union. I shall
recommend a dismissal of the complaint insofar as it alleges violations of Section
8(a),(5) of the Act.
E. Transfer or interchange of work between New England Web
and National Webbing
The General Counsel argues that New England Web has failed to establish any
economic defense to what the General Counsel calls "its shutdown" and also that
the motivating cause for such "shutdown" was New England's animus against the
Union and hostility to it.
He refers to "a threat made to shift New England's work
to National" and an actual shifting of work, machinery, and materials to National.
New England Web was incorporated in June 1952; National Webbing was incor-
porated in August 1958, when it acquired the assets of a going business.
New
England Web and National Webbing manufacture the same product. The manufac-
turing process is the same in both corporations. Some of the equipment in each
place is such that the same items can be manufactured in either location.
National
Webbing always has manufactured certain of the exact type of materials run at New
England Web. Included in the agreement with the predecessor owner of National
Webbing was that the predecessor was to act as a sales representative for National
12At the time of the hearing herein, New England Web was still in business and had
not liquidated.
There was a comparatively heavy corporate indebtedness and according
to the testimony, during the month of February alone New England Web had suffered a
loss of approximately $8,000.
To engage in surmise, it might be that had the Union
modified its wage demands on May 17 or thereafter, the Company could have decided to
remain in business
I do not believe it my province to speculate in this respect.
1050
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Webbing and as a result thereof identical numbers or items could be running in both
plants.
An example given was in connection with 44-gage rubber, when as many as
50 looms at one time were running between a half inch and a five-sixteenths inch, a
companion rubber.
As explained by Jarvis a rubber covering machine is not easily
set up; it may take 2 or 3 hours to set it up and after the setup is made there is a
chance the material may stretch and may not be of the desired quality, so that if a
similar number is being run at National or the other way around, and the cover
machine is set up at one of the two places, the one would make enough rubber to
take care of both plants.
On a large order, part of which was run by ,the other corporation, it was charged
on a counter account between the two companies, and the customer billed by the
company which originally received the order.
As explained by Jarvis, there would
be times that a customer would send in an order for New England and if National
was running that particular item, the material to fill the order would be manufactured
by National or, conversely, if National received an order and New England was
running it, it was more economical for New England to run the order than to send it
to National for spooling, shipping, and billing. It is perfectly clear upon the record
that this practice existed long prior to the strike beginning March 9.
A great deal of time was spent at the hearing to show that after the runoff opera-
tions started at New England on or about April 14, the weavers employed by New
England Web on occasion went to National to run materials off the looms and that
there was a considerable amount of loom work done on the looms of National. The
reason given for this is comparatively simple.
As material on the looms ran short at
New England it was feasible to complete the order by running the looms of National.
At the time the runout work was being done by New England, that Corporation's
receivables were between $3,000 to $3,500; accounts payable amounted to between
$8,000 to $9,000, and it owed $9,000 on a chattel mortgage.
Two covering machines
had had to be sold in order to make payments on the chattel mortgage. Although
the books of New England were readily available to the General Counsel at the time
he put in his case-in-chief and for cross-examination, his counsel did not take advan-
tage of an examination of the books to disprove the testimony of Jarvis as to the
financial situation of New England Web during the times material hereto.
I conclude that the manner of interchange of work between New England Web and
National Webbing was no different in practice after April 13 than it was prior to the
strike.
The only difference, not material to the issues here, seems to be that such
interchange was effected during a time when it had been decided to run out all
orders of New England prior to liquidation of its business.
The emphasis placed
by the General Counsel upon the performance of some work at National Webbing
for New England Web during the running out period at New England Web from
April 14 or thereabouts, until the time of the hearing herein, is, I believe, mis-
placed.
Had this been something new, I could understand the position of the Gen-
eral Counsel.
But the facts plainly disclose the financial distress of New England
Web, the impasse between employer and union with respect to wages, the prior
similar practice between the two companies, and the decision to liquidate (which
in the absence of further proof to the contrary must be taken as bona fide) offset
the contention of the General Counsel that the circumstances show union animus and
hostility
Too much surmise and inference as to employer motivation is necessary in
order, to warrant a finding of bad faith.
Concluding Findings
The General Counsel has failed to prove by a preponderance of the evidence that
at all times material hereto the Respondents have been affiliated businesses and con-
stitute a single integrated business enterprise. I find that the Union after April 1 has
been the representative of the employees in the described unit for the purposes of
collective bargaining with the Respondent. New England Web, Inc., and that this
Respondent did bargain in good faith with the Union in respect to rates of pay,
wages, hours of employment, or other conditions of employment I cannot find that
the Respondent, New England Web, Inc., has refused or continued to refuse to
bargain collectively with the Union; that the economic strike which began on
March 9 was converted on that day or thereafter to an unfair labor practice strike;
that the Respondents or any of them locked out or discharged any employee because
its employees selected the Union as their bargaining representative and sought to
bargain collectively through a representative of their own choosing, and engaged in
other concerted activities for the purpose of collective bargaining or mutual aid or
protection.
I cannot agree that the strike, admittedly an economic strike at its in-
DIXIE GAS, INC.
1051
ception, was converted• into an unfair labor practice strike.
One striker was allowed
to work for either Conrad Manufacturing or Jarvis Manufacturing , beginning im-
mediately after the election, and some eight other strikers went to work for New
England Web' on April 14, and thereafter , all with the knowledge and consent of
the Union.
These employees, at least the weavers, held seniority .
One man,
Flannery, not a weaver, was let go at the insistence of the Union .
As found else-
where herein, there is not sufficient proof in the way of substantial evidence in the
case to warrant a finding of the commission of unfair labor practices which taken
together with the circumstances causing the strike, would amount to unfair labor
practices on the part of the employer.
Affirmatively I find, that the Respondent , New England Web, Inc., has not refused
to meet and bargain collectively with the Union at reasonable times, that the strike
beginning on March 9 was an economic strike and was not converted to an unfair
labor practice strike by reason of the commission of any unfair labor practice by
the Respondent, New England Web, or any of the other named Respondents, and
that the Respondent, New England Web, Inc., did not lock out br discharge any
employee for the reasons alleged in the complaint .
I find that the General Counsel
has failed to sustain the burden of proof to show that the Respondent , New England
Web, Inc., or any other named Respondent , engaged in interference , restraint, or
coercion of its or their employees , as alleged in the complaint, or engaged in any
activity constituting unfair labor practices affecting commerce within the meaning
of Section 8(a)(1), (3 ), or (5) or Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondents, New England Web, Inc., National Webbing , Inc., Tri-Dye
Corporation, The Conrad Manufacturing Company, and Jarvis Manufacturing Cor-
poration are and have been engaged in commerce within the meaning of the Act.
2. Rhode Island Joint State Board , Textile Workers Union of America , AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
3. No one of the above-named Respondents have engaged in or is engaging in
unfair labor practices as alleged in the complaint.
[Recommendations omitted from publication.]
Dixie Gas, Inc. and General Drivers, Salesmen & Warehouse-
men's Local Union No. 984, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America
Dixie Gas, Inc. and General Drivers, Salesmen & Warehouse-
men's Local Union 984, I.B.T.C.W. & H. of America, Petitioner.
Cases Nos. 26-CA-962 and 26-RC-1457. Februarij 14, 1962
DECISION, ORDER, AND CERTIFICATION OF
REPRESENTATIVES
On June 27, 1961, Trial Examiner Earl S. Bellman issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondent in Case No. 26-CA-962 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 Intermediate Report attached hereto.
He further
found that the Respondent had not engaged in certain other unfair
135 NLRB No. 104.