Rockford Mitten & Hosiery Co.

In the Matter of ROCKFORD MITTEN & HOSIERY COMPANY and THE AMERICAN FEDERATION OF HOSIERY WORKERS THROUGH THE TEXTILE WORKERS ORGANIZING COMMITTEE , AFFILIATED WITH THE COMMITTEE FOR .INDUSTRIAL ORGANIZATION Case No. C-989.-Decided October 26, 1939 Cloth and Hosiery Manufacturing Industry-Interference, Restraint, and Coercion : questioning employees regarding union affiiliation and activity; dis- crediting union and union organizers-Discrimination : charges of, not sustained. Mr. Robert R. Rissman, for the Board. Fyffe c1c Clark, by Mr. John Harrington, of Chicago, Ill., for the respondent. Mr. Leon M. Despres, of Chicago, Ill., for the Union. Mr. Francis V. Paone, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by The American Federation of Hosiery Workers through the Textile Workers Organ- izing Committee, affiliated with the Committee for Industrial Organization, herein called the Union, the National Labor Relations Board, herein called the Board, by the Acting Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated July 15, 1938, against Rockford Mitten & Hosiery Company, Rock- ford, Illinois, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint, accom- panied by notice of hearing, was duly served upon the respondent and upon the Union. The complaint alleged in substance that the respondent, on May 28, 1937, laid off Emery Burnett, Gladys Anderson, Alberta Hilton, Pearl Palmquist, Fred Clark, Ransom Frankeburger, Myrtle Franke- 16 N. L. R. B., No. 53. 501 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD burger, and William Frankeburger, and on May 31, 1937, laid off Emily Baxter, employees of the respondent, and thereafter refused to employ said persons, and each of them, for the reason that they had joined and assisted the Union and had engaged in concerted activities with other employees in the plant for the purposes of col- lective bargaining and other mutual aid and protection, and that by such lay-offs and refusals to employ said employees, the respondent discriminated in regard to their hire and tenure of employment, thereby discouarging membership in the Union. The complaint also alleged that the respondent interrogated its employees concerning their labor union affiliations, and advised, urged, and warned them to refrain from joining or remaining members of the Union. The respondent filed an answer on July 21, 1938, denying the material allegations of the complaint, and affirmatively setting forth that it offered employment to each of the persons named in the com- plaint, and that such offer of employment was refused by all of them. Pursuant to notice, a hearing was held at Rockford, Illinois, on July 25, 26, and 27, 1938, before . Wright Clark, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the hearing a motion made by counsel for the Board to conform the pleadings to the proof was granted by the Trial Examiner. At the close of the Board's case and again at the close of the hearing the respondent moved to dismiss the com- plaint. The Trial Examiner reserved rulings on these motions at the hearing and denied them in his Intermediate Report. During the course of the hearing the Trial Examiner made a number of rulings on other motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds'that no prejudicial errors were committed. The rulings are hereby affirmed. On October 21, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon all the parties, finding that the respondent had engaged in and was engaging in unfair labor practices, within the meaning of Section 8 (1) and (3) of the Act. The respondent and the Union thereafter filed exceptions to the Intermediate Report and briefs in support thereof. The re- spondent and the Union also filed reply briefs. Although notified of their right to do 'so, neither party requested oral argument before the Board. The Board has reviewed all the exceptions to the Inter- mediate Report and, except as they are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. ROCKFORD MITTEN & HOSIERY COMPANY 503 Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, a corporation organized under the laws of the State of Illinois, is engaged in the manufacture and sale of wool, flannel cloth, and athletic, sport, and other types of heavy woolen hosiery, at its plant in Rockford, Illinois. The respondent's opera- tions require the use of such raw materials as wool, cotton, wool mix- tures, and dyes. During the period from July 1, 1937, to June 30, 1938, its total purchases amounted to approximately $1,250,000, of which 85 per cent originated outside the State of Illinois. The re- spondent's sales for the same period amounted to approximately $1,000,000, of which 85 per cent were shipped to States other than Illinois. II. THE ORGANIZATION INVOLVED American Federation of Hosiery Workers is a labor organization affiliated at the time of the hearing with the Textile Workers Organ- izing Committee of the Committee for Industrial Organization.' It admits to membership all production workers in the respondent's plant, excluding clerical and supervisory employees. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Early in 1937 the Union began to organize employees in various plants located in and around Rockford. In May 1937 the Union commenced organizational activities among the respondent's em- ployees and on May 9, 1937, held its first meeting. At this meeting a number of the employees were selected to serve on a committee to solicit membership among the respondent's employees. It was an- nounced that there would be another meeting of the Union during the following week. On May 13, 1937, at the request of J. B. Glasner, general manager of the respondent, Earl Hutton, one of the respondent's foremen, advised the employees in the plant that meetings would be held in the general manager's office during the working day. In accordance with these instructions the employees met in the general manager's office in groups of 15 to 20 at a time. To each group Glasner stated that he was aware that a union meeting had been held the Sunday before and that the purpose of his remarks was to explain to the employees their ' Now Congress of Industrial Organizations. 247383-40-vol. 16-33 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights under the Wagner Act. Following a brief discourse in which he quoted certain portions of the Act, Glasner reviewed the history of the respondent's growth, forecast the extent of its future opera- tions, and characterized the plant supervisory force as a "pretty good bunch" who would deal with the employees fairly on any grievance they might present. His further comments at this time on union- ization of the employees are described below. On May 15 another meeting of the Union was held. The record does not disclose the number of the respondent's employees in attend- ance at this meeting. In regard to the May 13 speeches,2 Glasner began by reviewing certain portions of the Act, pointing out that joining a union is no guarantee against discharge, and that an employer need not agree to any particular terms in the course of collective bargaining. While these statements concerning the scope of the Act were not incorrect, the emphasis upon the negative aspects of the Act was clearly designed to exercise a deterrent effect on the organizational activities of the employees. We need not decide whether these state- ments, without more, would constitute interference with, restraint, or coercion of the employees, for Glasner went on to make additional comments which remove all doubts as to the nature of the speeches as a whole. Referring to unions and the C. I. O. specifically, he said : Now, you have been hearing a lot of ballyhoo coming from one direction; it has all been C. I. O. What is the C. I. 0.? Frankly, the C. I. 0., as I understand it, is a patent medicine idea whereby if you pay two dollars initiation fee and one dol- lar a month you get more and more pay, better and better living, everything will just be fine and dandy. . . . Periodically some wild haired brother gets up and does some' talking that influ- ences people, he gets a great group of people to go with him, everybody shouts and waves their hands and brass bands play. But about a year or a year and a half later the thing dies down and you don't hear much about it. Continuing his remarks Glasner characterized union leaders as per- sons interested solely in their own personal advancement in the following,manner : Who heads the C. I. 0., and what has he done? John L. Lewis is the head of it, who has been head of the United Mine Workers . . . They contributed, the Mine Workers . . . to the last A court reporter was present at the meeting of the groups and recorded Glasner's remarks and a transcript of the reporter was introduced in evidence . The respondent stipulated that substantially the same remarks contained in the transcript were made by Glasner to each individual group of employees. ROCKFORD MITTEN & HOSIERY COMPANY 505 presidential campaign . . . I don't know just how that helped the individual mine worker, but it did help John L. Lewis; it made him quite a fellow. One of his lieutenants you read a great deal about today is Homer Martin who flits around the country in a private aeroplane. I don't know who pays for the aeroplane or the gas he uses. Glasner then reviewed in detail numerous strikes in the vicinity, averring that they were devoid of any benefit to employees in- volved, and, in that connection, conveyed the following thinly veiled threat: I am not going to make any contracts, or make any obligations with' those people that I can't make good on. And until there is absolute certainty as far as this Company is concerned in those operations, I am not going out and stick my neck out and commit myself where I promise friends of mine they are going to get delivery. Glasner also told the employees : "There will be no discrimination against you . . . All I am asking you is to think the thing over before you do it. Don't let any of these long-haired boys with a brass band and a lot of ballyhoo herd you in like a bunch of sheep." To sum up, we find that Glasner's remarks were intended to con- vey to the employees the impression that the Union was a fly-by-night organization, led by irresponsible and wholly unintelligent persons who would unquestionably foment a long series of unjustified strikes; that the respondent, with this prospect in view, was prepared to re- frain from making normal business commitments if the employees became active in the Union and that the employees would thus suf- fer, along with the respondent's business; and that the. Act would provide little, if any, protection for them if they became active in the Union. That was the general tenor of the speeches, and Glasner's statements that the employees were free to join the Union if they so desired, after giving `full weight to the implications he had indi- cated, plainly did not'suffice to change the impression created by the speeches as a whole. In reference to these speeches, Glasner con- ceded at the hearing that : "I would say from the talk I gave there were things in that talk that would convey the idea to an employee that I wasn't particularly strong for a labor organization:" Coincident with the early organizational activities among the em- ployees and the remarks of Glasner to the various groups on the subject of union organization, were certain activities of the respond- ent's supervisory officials among the employees. Matt Paladino, one of the employees who attended the first union meeting, testified that on some undetermined date in May 1937 Schofield, the respondent's 1 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD superintendent, asked him if he had attended the union meeting and also inquired as to whether they appointed any committees at the meeting. Paladino replied that he did not know and this ended the incident. Inez Hall testified that Hutton, one of the respondent's foremen, in answer to her inquiry as to whether certain employees who were laid off on May 28 would be rehired, stated "They should be satisfied with the wages they were getting without wanting union labor," and that they would never be rehired. Wesley Erbe testified that Hutton asked him "if anybody was talking about union activi- ties on the job" and "if Ransom Frankeburger had been mentioning the union." Ransom Frankeburger testified that Hutton approached him while he was distributing union leaflets at the plant sometime in May and said, "If I was you I wouldn't be handing these around." "I wouldn't have it be said that you started this up here." He also testified that on another occasion, Hutton remarked, while passing his machine, "I hear you are a CIO organizer." Although Hutton took the stand at the hearing he did not deny any of these state- ments attributed to him. Schofield did not testify at the hearing. We find that Hutton and Schofield made the above statements to the various employees who testified regarding them. The complaint alleges that the activities of the respondent's super- visory officials detailed above interfered with, restrained, and coerced the respondent's employees in the exercise of their rights under the Act. The respondent contends, although it does not dispute the facts, that the statements made by its supervisory officials must be regarded merely as attempts by its officials to satisfy their curiosity, and that such statements were in any event mere expressions of opin- ion and did not constitute coercion and intimidation of the employees. What constitutes interference, restraint, and coercion in a particu- lar case must necessarily depend upon all the facts and circumstances in such case. In the instant case there can be no doubt that the course pursued by the respondent immediately following the instiga- tion of the organizational movement among its employees was de- signed to prevent, if possible, any organization of the employees. The statements of Hutton and Schofield in interrogating the em- ployees regarding their union membership must be regarded as unlawful interference. We have frequently held that such interroga- tions by an employer or by those responsible for expressions of his policy, contravene the Act 3 Such interrogation constitutes an im- plied threat that the employer's economic power may be used to the disadvantage of the individual employees who are active in the s Matter of Trenton Garment Company and International Garment Workers Union, Local 278, 4 N. L. R. B. 1186; Matter of Semet-Solvay Company and Detroit Coke Oven Employees Association and International Union, United Automobile Workers of Amer ca, Local 174, 7 N. L. R. B. 511. ROCKFORD MITTEN & HOSIERY COMPANY 507 Union. Furthermore, on the occasion when Frankeburger was dis- tributing union literature, Hutton's statement, "If I was you I wouldn't be handing these around," was an unmistakable warning to Frankeburger to cease his activities on behalf of the Union. Furthermore, Glasner's speeches, coming at a time when the Union was conducting a drive to organize the employees, had the unmistak- able purpose and effect of warning the employees that they should refrain from joining the Union. We find it impossible to believe that statements denouncing labor organizations and criticizing union leaders as insincere and irresponsible persons who seek only to ex- ploit workers for their own personal advancement, coming from the employer and propounded to employees under circumstances clearly indicating that they should take heed, are merely directed to the reason of the employee and are intended to influence only his mental process, and have no intimidatory or coercive effect. No employee could fail to understand that if he disregarded the warning he might find himself in difficulties with his employer. Such fear, we think, was the natural and inevitable result of the statements made by the supervisory officials here involved. We find that the respondent, by the statements discussed above, has interfered with, restrained, and coerced its employees in their exercise of the rights guaranteed by Section 7 of the Act. We do not believe that the foregoing finding unconstitutionally abridges the respondent's freedom of speech. Freedom of speech is a qualified, not an absolute right. The Act requires the employer to refrain from acts that interfere with, restrain, or coerce employees in the exercise of their rights to self-organization and collective bar- gaining. The guarantee of such rights to the employees would indeed be wholly ineffective if the employer, under the guise of exercising his constitutional right of free speech, were free to coerce them into refraining from exercising the rights guaranteed them in the Act. The contention that coercive statements made by super- visory officials to employees are protected by the First Amendment has been rejected in several cases arising under the Act.' B. The allegedly discriminatory lay-offs and refusals to reinstate The complaint alleges that on or about May 28, 1937, the re- spondent laid off Emery Burnett, Gladys Anderson, Alberta Hilton, Pearl Palmquist, Fred Clark, Ransom Frankeburger, Myrtle Franke- burger, and William Frankeburger, and on or about May 31, 1937, 'National Labor Relations Board v. The Palk Corporation, 102 F. (2d) 383; Virginia Ferry Corporation v. National Labor Relations Board, 101 F. (2d) 103; National Labor Relations Board v. Union Pacific Stages, Inc., 99 F. (2d) 153, 179. See Matter of Ford Motor Company and International Union, United Automobile Workers of America, 14 N. L. R. B. 346. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laid off Emily Baxter, and has at all times since refused to reinstate them, because they joined and assisted the Union and engaged in concerted activities with other employees for the purposes of collec- tive bargaining and other mutual aid and protection. The Trial Examiner found that a reduction in the respondent's force of employees on May 28 and 31, 1937, was due to the condition of its business and that the employees named in the complaint were not discriminatorily laid off. However, he found that all the named employees were discriminated against because of union activity by reason of the fact that new employees were taken on by the respond- ent, doing work that these employees were capable of doing, between July 6 and September 14, 1937. The Union has excepted to the finding and conclusion of the Trial Examiner that no discrimination was practiced by reason of the dismissal of these employees on May 28. The respondent has excepted to the findings and conclusions of the Trial Examiner as to discrimination against these employees by reason of the hiring of new employees between July 6 and September 14, 1937. The record shows that for some time prior to May 1937, the business of the respondent had been declining, and that on May 28, the re- spondent laid off 27 employees at its plant because of the decline in business. In support of its contention that the lay-off was due to the condition of its business the respondent introduced in evidence a tabu- lation of its production operations for the period from January 1, 1937, to January 1, 1938. This tabulation disclosed that in January 1937 the respondent wove 2,078 pieces of cloth, while in May of the same year its production had decreased to 1,197 pieces and in the fol- lowing month of June slumped to 925 pieces. This decline in business resulted in the respondent laying off 27 employees on May 28, 1937. No evidence was offered to refute the facts disclosed by the tabulation concerning the decline of the respondent's business. In view of this evidence we agree with the Trial Examiner's finding that the condi- tion of the respondent's business on May 28, 1937, compelled it to reduce the number of employees. Foreman Hutton selected the employees to be laid off. He testified that he took into consideration such factors as whether the employee was a local resident, and whether another member of the employee's family was also working. He testified further that this resulted in laying off good, fair, and poor weavers from the standpoint of ability, while those retained also included good, fair, and poor weavers from the standpoint of ability. While all the complainants herein testified regarding their union membership, no evidence was offered regarding the union membership or otherwise of the 18 other employees laid off at the same time. Similarly, no evidence was introduced as to union membership or non-membership of those retained. Under these cir- I ROCKFORD MITTEN & HOSIERY COMPANY 509 cumstances there is no basis for a finding that the employees named in the complaint were discriminated against because of their union membership in being laid off. We therefore agree with the finding of the Trial Examiner that these employees were not- discriminatorily laid off. On July 6 the respondent began rehiring, and by July 16 it had rehired 11 of the 27 employees laid off on May 28; of the 16 remaining 9 are named as complainants in this proceeding, 4 were rehired in January and February 1938, and the record contains no evidence as to 3. During July the respondent also hired 3 new employees, 2 of whom were former employees of the respondent but not employed by the respondent at the time of the lay-off. The third, a woman with no prior service with the respondent, was hired as a learner. Between July 30 and September 14 the respondent hired eight new employees who were formerly employed at the Ziock Company, a weaving plant located in Rockford. Hutton explained that in July 1937 the weave room was operating at about one-half capacity and that in so far as production was con- cerned, it did not need to reemploy any of the employees previously laid off; but that it gave work to such of its employees as it felt needed it, and also took on some former Ziock employees to help keep a skeleton force of the Ziock organization together. In explaining why certain employees were rehired Hutton gave -as reasons : one because she had eight children to support, another be- cause her brother was a night boss and he had asked that she be given a little work, another because her husband was unemployed, another because he had a family, and the others because he felt that their "circumstances were such that they were in need of work." As to the three new employees hired during July, Hutton explained that two of them were former employees of the respondent and were good weavers and that the third employee was hired as a learner. He further testified that his failure to rehire the employees named in the com- plaint was due to the fact that some of them were not so much in need of work as those he did rehire and, as to others, that they were not entitled to any work because they were not local residents. A special explanation is offered with respect to the eight Ziock em- ployees who were hired between July 30 and September 14. In 1933 or 1934, Mr. Ziock, the majority stockholder in the respondent cor- poration for over 40 years, opened a small weaving plant in Rockford near the respondent's plant. After about 9 months of unsuccessful operation, Ziock entered into an arrangement with the respondent whereby the respondent agreed to furnish sufficient work to the Ziock plant to insure its operation on a cost-plus basis. Under this plan Ziock bore all the expenses and salaries incident to the operation of 510 DECISIONS Or NATIONAL LABOR RELATIONS BOARD his plant. This agreement continued until shortly after the lay-off on May 28. Glasner testified that shortly after the lay-off Ziock was in conference with him almost daily urging him to employ tem- porarily ' a few of his employees so that when business increased the Ziock plant would at least have a skeleton force to renew operations. He stated that Ziock in his urging became so persistent that he felt obliged to comply with the requests, that he then instructed Hutton to employ a few of the Ziock employees, and that thereafter eight of them were employed according to his instructions. As stated above, there is no evidence in the record regarding the union membership or lack of union membership of the old employees who were dismissed at the same time as the complainants herein and who were subsequently reemployed. Nor is there any evidence as to whether or not the eight Ziock employees and the three new employees were members of the Union. Under all the circumstances we feel that there is insufficient evidence upon which to base a finding of dis- crimination against the employees named in the complaint because of their membership in the Union; We sustain the respondent's ex- ceptions to the finding and conclusion of the Trial Examiner in this respect. We find that the respondent has not discriminated in regard to the hire and tenure of employment, or any term or condition of employ- ment, of Emery Burnett, Gladys Anderson, Alberta Hilton, Pearl Palmquist, Fred Clark, Ransom Frankeburger, Myrtle Frankeburger, William Frankeburger, and Emily Baxter, as alleged in the com- plaint. Accordingly, we will dismiss the allegations of the com- plaint in so far as they relate to these individuals. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III A above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. American Federation of Hosiery Workers, Textile Workers Or- ganizing Committee, affiliated with the Committee for Industrial Organization, is a labor organization, within the meaning of Section 2 (5) of the Act. 4 ROCKFORD MITTEN & HOSIERY COMPANY 511 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not discriminated in regard to the hire and tenure of employment of Emery Burnett, Gladys Anderson, Alberta Hilton, Pearl Palmquist, Fred Clark, Ransom Frankeburger, Myrtle Frankeburger, William Frankeburger, and Emily Baxter, and has not thereby discouraged membership in a labor organization, within. the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Rockford Mitten & Hosiery Company, a corporation, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from in any manner interfering with, restrain- ing, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid and protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Immediately post notices in conspicuous places in its plant, and maintain such notices for a period of at least sixty (60) consecutive days, stating that the respondent will cease and desist in the manner aforesaid; (b) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. MR. WILLIAM Al. LEISERSON took no part in the consideration of the above Decision and Order.