Hawk & Buck Co., Inc.

In the Matter of HART. & BUCK CoaiPANY, INC.' and UNITED GARMENT WORKERS OF AMERICA, LOCAL No. 229 Case n7o. C-1504.-Decided July O.4; 1940 - Jurisdiction : garment manufacturing industry. Unfair Labor Practices Intertetence, Restraint, and Coercion: anti-union statements; interrogation con- cerning union membership: transfer and discharge of prominent union mem- bers: interference with right of employees to bargain collectively; advance announcement of refusal to agree to possible collective bargaining requests Discrinatnatiovn.: transfers and discharges for union membership and activity. Te,stimonij v uder the Act: discharge of employee for testifying at prior hearing, charges of dismissed - Remedial Orders : reinstatement and back pay awarded. Employer 'ordered 'to reinstate discriminatorily discharged employee, who ,failed to,earn,the•minimum-wage,required, under the Fair Labor Standards Act. for a minimum period of four months under working conditions that would afford her a reasonable opportunity to earn the minimum wage re- quired under the Fair Labor Standards Act and thereafter to continue her as a regular employee if her average weekly earnings during the last three weeks of the four-month period were at least equal 'to the minimum wage required under the Fair Labor Standards Act. Practice and Procedure : effect of agreement participated in by Board agent ,purporting • to compromise- unfair labor practices engaged in prior to such agreement Mr. Alba Martin, for, the Board. Sim,on and Wynn, by Mr. Sproesser Wynn, of Fort Worth, Tex., for the respondent. Mr. W. R. Brooks, of Kansas City, Mo., Mrs. Bertha Shelnutt, of -Waco. Tex., and Mr. Joseph A. Padway, by Mr. H. S. Thatcher, of Washington,-D. C., for the Uriion. Mr. Harold Weston, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon chhrges and amended chaiges duly filed by United Garment Workers of America, Local No. 229, herein called the Union, the National Labor Relations Board, herein called the Board, by the 25 N. L. R. B., No. 94. - 837 2s3036-42=vol. 25-54 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regional Director for the Sixteenth Region (Fort Worth, Texas), issued its complaint dated October 9, 1939, against Hawk & Buck Company, Inc., Fort Worth, Texas, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (4) and Section 2 (6) and (T) -of the Na- tional Labor, Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint, accompanied by notice of hearing, was duly served-upon the respondent -and upon'the Union. With respect to the -unfair labor practices, the complaint alleged, in substance, ( 1) that the respondent transferred Bertha Shelnutt and Rorie Moser to less favorable positions, thereafter discharged Bertha Shelnutt, Roxie Moser and Lula Godsey, and has at all times refused to reinstate them to their regular positions , for the reason that each of them joined or assisted the Union and engaged in con- certed activities for the purposes of.collective bargaining and other mutual aid and protection; (2) that the respondent discharged and refused to reinstate Bertha Shelnutt for the further, reason that she has given testimony under the Act; and (3) that by the foregoing acts and by 'other acts, the respondent interfered with, restrained, and coerced its e'mploy-ees in the exercise of the rights 'guaranteed in Section 7 of the Act. On October 21, 1939, the respondent filed its answer denying the averments of unfair labor practices and alleging affirmatively that Shelnutt was discharged for the violation of previously published rules of the respondent ; that Moser and Godsey refused offers of reinstatement under the same tenure and ,"conditions as'other em- ployees in' the same category ; and that, on September 20, 1938, the respondent had, pursuant to a settlement agreement participated in ',by, the Regional Director of the Board; posted a cease and desist notice in its plaiit.that remedied aiiy unfair labor'practice of which it might have been guilty prior to the'date`of said settlement. Pursuant to notice, a hearing was held in Waco, Texas, on October 23, 24, 25, 26, and 27, 1939, before Josef L. Hektoen, the Trial Ex- aminer duly designated by thetBoai•d.•1'The Board and the respondent were represented by counsel and:the Union by a representative,' and were afforded full opportunity,:to) be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the conclusion'o£.the, Board's case, the respondent moved to dismiss the complaint,; on the ground that, the evidence failed to substantiate' thel'illegationsof the, complaint. This motion was denied by tine Trial Examiner. During tlie. course of. the. hearing, the Trial EXaininer made rulings on other motions and on objections ' The Union was also represented by Bertha Shelnutt, one of the complainants herein. HAWK & BUCK COMPANY, INC. 839 to the admission of evidence. Subsequent to the hearing, counsel for the Board filed a written motion to conform the pleadings to the proof, to which motion the respondent filed objections. The motion was granted by the Trial Examiner in his Intermediate Report. The Board has reviewed all rulings made by the Trial Examiner during the course of the hearing and in the Intermediate Report on motions and on objections to the admission of evidence and finds that Iio prejudicial errors were committed. These rulings are hereby affirmed. On' November 13, 1939, a brief was filed by the respondent for the Trial Examiner's consideration. Thereafter the Trial Examiner .issued his Intermediate Report, dated March 9, 1940, copies of which were duly served upon the parties, in which he' found that the re- spondent had engaged in and was engaging in,unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (4) and Section 2 (6) and (7) of the Act.' He recommended that the respondent cease and desist from its unfair labor practices, that it reinstate Bertha Shelnutt, Lula Godsey, and Roxie Moser with back pay, and that it take certain other appropriate action to remedy the situation brought about by, its `unftiir labor practices. On, March 23, 1940, the respondent filed its exceptions to the Inter- mediate Report and requested oral argument. On May 14, 1940, the respondent filed a brief in support of its exceptions, and on June 4, 1940, the Union filed a brief. Pursuant to notice a hearing for the purpose of oral argument was held before the,Board on 'June 4, 1940,, at Washington,, D. C. Tlie" respondent and the Union were represented by) counsel and participated in the argument. , The Board has reviewed the exceptions to the Intermediate Report filed by the respondent and his considered the briefs filed,by the parties and finds that the exceptions are, without, merit. in so far, as they are, inconsistent with the findings, conclusions, and order set forth below. , , - Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT L' THE BUSINESS'OF THE RESPONDENT' Hawk &,Buck Company, Inc., a Texas corporation -\vitlilits princi- pal office in Fort Worth, Texas, is engaged at its plant, in Waco, Texas, any the, manufacture of overalls, jumpers, work pants, wpi;k shirts, and coveralls. ' During 1937 and, 1938 the respondent used ,'raw in valued at, approximately $500,000, about- 84 per cent of wh cli were delivered 840 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD to the respondent's, Waco plant from points outside, the State of Texas. The respondent's volume of business exceeded $800,000 gross in 1937, $725,000 in 1938, and $650,000 in 1939 to the date of the hear- ing. Approximately 20 per cent of its finished products are shipped by the respondent from its plant at Waco to points outside the State of Texas, principally to Oklahoma, Louisiana, Arkansas, and New Mexico. Tinder normal conditions, the'reEpondent employs approximately 225 employees at its Waco plant.' II. THE ORGAN lZ ATION INVOLVED United Garment Workers of 'America, Local No. 229, is a labor organization affiliated with the American Federation of Labor, 'ad- mitting to membership employees of the respondent. III. THE I1NF.AI11 LABOR PRACTICES A. Interference, re..st,'aint, and Coercion Late in April 1938, about 1 month after it had obtained its charter, the Union began an organizational drive among the respondent's em- ployees. Shortly thereafter the respondent took steps designed in large part to impede the growth of the Union and otherwise dis- courage the exercise by its employees of the rights guaranteed by the Act. On about April 29, 1938, the morning after Bertha, Shelnutt, an employee, had joined the Union, Plant Superintendent John Cassidy asked her why she had done so. During the ensuing conversation Cassidy said, "You know I pay wages equal to [any in] the south- west, and that is what you organize a union for, better wages and better conditions. We can't do that. We--can't -pay any more." On two later occasions, during July 1938, Cassidy had the oper- ating power turned off to enable him to address the employees in the plant during working hours. Upon the first such occasion, about July 10, he told the employees that they were not working as they should, and "that there was so much talking going on, and such an uproar, that he wanted to try to see what was wrong." Cassidy went on to say that, with respect to joining a union, the employees could do just as they wished, "but I can tell you one thing, we are not going union, and I want,you all to get down to your machines and get'through aiid get the work out." 3 In his next addre"ss^ about July 12, Cassidy told the employees that they still were not working 2 Counsel for the respondent stated in briefs and at oral argument that during rush seasons over 300 employees are sometimes employed. 2 Cassidy also mentioned his former membership in the A. F of L. and said that if he had to join either the C. I. 0. or the A. F. of L., he would join the latter. HAWK & BUCK CONIPANY, INC. 841 as they should and that "if there is any question pertaining to any- thing in the factory that you want to know, I want you to ask it now." When one of the employees asked if it was necessary to join the-Union to hold a job, Cassidy replied in the negative, adding that "the factory didn't aim to go union anyhow." Cassidy testified that during one of these addresses, he stated that while employees could join "any union they wanted to, .. . we didn't feel we could pay union wages and we didn't feel we would sign a contract with the Union." Cassidy's speeches, coming while the Union was attempting to gain a foothold in the factory, were plainly designed to impede union or- ganization. There was no legitimate reason for Cassidy at this time to emphasize to his employees that the plant was 'not going union" or that "we didn't feel we could pay union wages, and we didn't feel we would sign a contract with the Union." 4 Cassidy did not stop with these remarks, moreover, and about August 15, 1938; he shut off the power for a third time and addressed his employees as follows : "Now, girls, there is a lot of confusion in here about this Union and about belonging to the Union, and a lot of people are dissatisfied. They have been coming to me and asking me how they can get out of the Union. I want to tell you now if any of you are dissatisfied with it, if you will ask them for their papers, . .. they will give them back to you, and if they don't, you come into my office and we will see what we can do about it." On August 8, 10, and 12, a few days before Cassidy delivered his third address, the union bargaining com- mittee met with him in his office.' It is significant that Cassidy chose an occasion shortly after his first meeting with the representatives of the Union to counsel the employees how they could withdraw from the Union. There is no doubt under the circumstances that, by Cassidy's three talks and by his remarks to Slielnutt the respondent sought to, and did, make clear to its employees its opposition to the Union. The re- spondent, however, contends that the Board is now barred from find- ing that any events transpiring prior to September 19, 1938, constitute unfair labor practices. In support, of its contention, the re- * The above statements by Cassidy in part relate to subjects of collective bargaining which the respondent might later be called upon to consider « ith the appropilate repre- sentatives of its employees . It is clear that while the respondent is not obligated under the Act to agree to any specific terms proposed by the Union. the respondents declaration, in advance of any demands. that it would not enter into a contract with the Union, agree to a closed shop , or pay union wages , was intended to discpurage membership in,the Union by indicating that the Union would be ineffective as a bargaining agent, and was obstructive of the employees' right to self-organization 5 At these conferences, the respondent was also represented by Forelady Olgie York. The union committee was composed of five employees. Lula Godsey, Bertha Shelnutt, Katy Segrest, Dana Grant, and Beryl Payne. At the conferences of August 10 and 12, respec- tively, Cadena and Brooks, representatives of the American Federation of Labor, also appeared for the Union. 842, DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' spondent relieson,the fact, that charges were filed by the Union on August 23. and September • 6, 1938, relating to the. above-described events and to,the,discharges of Lula ,Godsey and Minnie Thomas, and were adjusted by the. respondent's posting of'a notice-to 'its, employees on September 19, 1938, by its, contemporaneous agreement not to com- mit further unfair labor practices; and by its reinstatement of Godsey.el It has been our policy, to give effect to an agreement made in, settlement of unfair labor 'practices allegedly engaged in by an em- ployer and to refrain from proceeding on the basis of such 'alleged practices if an agent of the Board participated in the settlement and if the employer subsequently observed the terms of the settle- ment agreement and did not thereafter continue its unfair labor practices.' The Union, now asserts, that the respondent has engaged. in unfair labor practices subsequent to the settlement. It thus re- mains for us to consider whether the respondent observed the settle- ment upon which it now relies or,whether it breached the agreement by continuing to • engage in unfair labor practices after September 19, 1938. The complaint alleges that, subsequent to.September 19, 1938,,the respondent discriminated in regard to the hire and tenure of employ- ment of Bertha Shelnutt, Lula Godsey, •and.Roxie Moser. We turn to a consideration of the circumstances surrounding these cases of alleged discrimination. - Dr. Edwin A Elliott, ' Regional Dn•ector'for the Sixteenth Region, participated in the settlement on behalf of the Board and the case , No XVI-C-396, was thereafter designated as clo,ed by the Regional Office. The notice posted by the respondent read as follows : NOTICE TO ALL HAWK AND BUCK COMPINY EMPLOYEES 1 The Hawk and Buck Company in its relationship with its employees will not in any manner interfere with, restiain or coerce its employees in the exercise of their rights to self-organization. -to form, join or assist labor organizations. to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. . 2 It also is the policy not, to Sdiscourage membership of its employees in the United Garment Workers of America. Local 229, or any other labor organization by discrimination in' regard to' hire or tenure of employment or any termor condition of employment. 3 And fuithei, it is not the policy of The Hawk and Buck Company to interfere in any manner with the formation or administration of any labor organization (as defined by the National Labor Relations Act`) --of its embloyees or 'contribute financial support theieto.• I • ` THE HAWK AND BUCK CO. Matter of Shenandoah-Dives Mining Company and International Union of Mine, Mill c6 Smelter WorLcrs, Local No .?6, 11 N L R B 885 Also see Matter of Corn Products Refin- ing Company and United Cannery, Agricultural, Packing h Allied Workers of America, Local No 169, 22 N L R B 824, and the cases cited tiiciein HANK & BUCK COMPANY,, INC. 843 , B. Discrimination in regard to, hire and tenure of employment Bertha Shelnutt was first',em'ployed by the' respondent from' Au- gust 7; 1930, until December 1, 1936, as a single-needle operator.8 She then, left the respondent to accept employment with another company, where she worked as'a"floorlady for,the follo^ying 8 or 9 months. During the summer 'of 1937 a' position as temporary floor- lady 'in the respondent's plant ,becal`ne vacant and Shelnutt ap^plied for that work. She obtained the position when Forelady York urged Cassidy to act favorably upon her application. In the fall of 1937 the teiporary production' line over which Shel nett , was lloorlady was discontinued and Shelnutt was transferred to work on a'belt loop machine by Cassidy, !'Who assured her that this work would be of a permanent nature. On April 28, 19'38, Shelnutt joined the Uiiion and, at all times thereafter was an outstanding participant in its affairs. As already noted, the day after she had joined the Union she was approached by Superintendent Cassidy, who first inquired why she had done so and then went on to indicate that 'it would be of little avail for the respondent's employees to form a union. On August 7 or 8 Cassidy and Shelnutt were engaged in a conversation when Forelady York approached and remarked to Shelnutt, "I think that bunch of yours has done Mr. Cassidy the dirtiest of any bunch I ever saw. Mrs. Shelnutt, you can readily see who belongs to your bunch. It is just the common class that works in the factory." ° ' On or about August 10, a day or so after the union bargaining committee, of which Shelnutt was a member, had first met with Cassidy, Shelnutt was transferred from her position as belt-loop operator, to work on a single-needle machine. This transfer was clearly a demotion to less desirable work. As loorlady and. belt-loop operator, Shel- nutt had received wages based on a weekly rate. After her transfer, however, she was paid a piece rate and her earnings were consider- ably less than those she had received as a belt-loop operator.1° Sev- 8 Shelnutt testified that during this period , she made samples and was shifted around over the house" to "fill in in general ° Shelnutt testified to the above conversation Cassidy at the hearing merely denied that he had heard York say, "You can readily see who belongs to Mrs Shelnutt's bunch just the common ones." York did not deny making the remarks attributed to her by Shelnutt, and the Trial Examiner who had an opportunity to see and hear the witnesses at the hearing credited Shelnutt's account of this conversation The denial of Cassidy is neither con- vincing nor complete and in view of the Trial Examiner's finding and the respondent's con- duct both prior to and after this incident, we find that the conversation took place as Shelnutt testified 10 As a belt-loop operator , Shelnutt' s weekly earnings had amounted to $12 , $2 less than the amount she had received as a floorlady After her transfer Shelnutt received wages averaging about $7 or $8 a week. 844 DECISIONS OF NATIONAL LABOR RELATION'S BOARD eral days after her demotion, on about August 14, Shelnutt was engaged in a conversation with Forelady York when Cassidy ap- proached and inquired if York had "seen those papers being passed around the factory." Shelnutt pointed out that- the ' papers in qlt es- tion probably were union authorization cards which were being circulated during the recess period . Cassidy then remarked. "Yes, that Selma Hamil down there thinks she can get $15 straight time if you go Union , and Mrs. Godsey over there , the old wench, has caused more trouble in this factory than any other person in regard to this Union business ; some day she is going to find herself going out the front door faster than she came in." As set forth above, within the next day or so, Cassidy called a meeting of the employees to inform them that he believed certain of them to be dissatisfied with the Union and to offer the respondent's aid in obtaining the withdrawal of such employees from the Union. In the meantime , as,already poted, the union bargaining committee, including Shelnutt, had met with Cassidy on August 10 and 12. In September 1938 Shelnutt became president of the Union. On De- cember 1, 2, and 3, a hearing was conducted by the Board in a repre- sentation proceeding based on a petition filed by the Union, and Shelnutt participated as a representative of the Union." About 1 month later, on January 3 , the last day of her employment , Shelnutt had ,a conversation during working hours with one Gussie Eshenberg, a visitor from outside the plant. On this occasion , Eshenberg on entering the plant was accosted by Bessie Henderson , the respond- ent's clerk whose duty it was to meet such visitors and ascertain their business. Eshenberg asked Henderson for permission to speak with Shelnutt, whereupon Henderson consulted York and informed Eshen- berg-that she could not see Shelnutt until the recess period. Despite this, Eshenberg then asked one Mary Graves , another employee, to call Shelnutt , which Graves did. Eshenberg and Shelnutt then en- gaged in a conversation, part of which took place in the ladies' rest room. Henderson witnessed the entire transaction but did not re- quest Eshenberg to leave the plant or inform Shelnutt that she was not to speak with Eshenberg during working hours. Shelnutt did not work on January 4 and 5. When she returned to the plant on January 6 , Cassidy told her that she was discharged and when Shel- nutt asked him "what about," he referred to the Eshenberg incident as the basis for the discharge. _ It is alleged in the complaint that Shelnutt 's demotion on August 10, 1938, and discharge 'on January 6, 1939, were in violation of See- nMatter of flack h Buck Company, Inc . and United Garment Workers of America, 12 N. L. R B 230. HAWK & BUCK COMPANY, INC. 845 tion 8 (3) of the Act. In considering these allegations, we note at the outset that Shelnutt was an outstanding figure in the Union throughout the period of time with which we are here concerned. -Shortly after joining the Union she had been singled out by Cassidy in effect to be advised against further union activity. Her demotion in August took place several days after she had participated in the first meeting between the union bargaining committee and Cassidy, and was followed closely by Cassidy's last speech to the employees designed to discourage union activity. In the absence of persuasive evidence to the contrary it thus would be a fair inference that Shel- nutt's demotion was primarily the result of her outstanding union activity. The respondent contends, however, that Shelnutt's demotion re- sulted from her inability to "get along with" the other employees, from her "bossiness," and from the fact that she spent a great deal of time away from her machine talking to other employees. In sup- port of the respondent's contentions, there is evidence that about 2 days before her «demotion, Shelnutt engaged 'in - a heated discussion of the Union with a non-union employee, Alma Salters. During the argument Salters threatened to "stomp hell out of" Shelnutt. There- after both employees went to Cassidy and submitted their respective versions of the quarrel to him. At this time Salters told Cassidy that Shehnitt had threatened that when the Union came into the plant, Cassidy "would tuck his tail and get out like the rest of us that didn't have sense enough to join [the Union]." Shelnutt, pro- testing that this was a falsehood, called Salters a liar. Salters then slapped Shelnutt in the .face. It further appears that on the same day another non-union employee, Ruth McCorkle, complained to Shelnutt concerning ;the -unequal distribution ' of -work in • the plant. Shelnutt then advised McCorkle that one of the purposes of the Union was to remedy situations of this sort. Within a few minutes Cassidy rebuked Shelnutt for discussing the Union in the plant and stated that McCorkle had reported Shelnutt for talking about the Union. In view of all the evidence, we find that Shelnutt's alleged "bossi- ness," inability to "get along with" the other employees, and leav- ing of her machine during working hours were not substantial causes of her demotion on August 10. It does not appear that prior to her demotion Shelnutt was ever warned against leaving her machine. Other, employees; moreover, -left their machines -to engage in conver- sation during working hours without being reprimanded or dis- ciplined by the respondent. With respect to the Salters incident, it 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is clear that at the least Shelnutt and Salters were equally to blame. It does not appear, however, that Salters was in any way disciplined for her part in the affair. As to the McCorkle incident, there is no indication in the record of any basis for controversy between Shelnutt and McCorkle unless it is to be inferred that `McCorkle took umbrage at the mere suggestion that a union would provide appropriate machinery for presenting grievances to the management. Far from indicating that any dispute existed between McCorkle and Shelnutt, this incident serves best to show that the respondent regarded Shel- nutt's advocacy of the Union as a factor rendering her unable to "get along -with" the other employees. We do not believe that Shel- nutt's alleged conduct described above was, in any event, of such character as would in the ordinary conduct of the respondent's business, warrant her demotion to a less desirable position without previous warning, especially since she had been regarded as a valuable and trusted employee prior to her engaging in union activity. We find, therefore, that the respondent's alleged reasons for demoting Shelnutt were not its true reasons and that the demotion was cal- culated by the respondent to discourage Shelnutt from continuing her union activity. With respect to Shelnutt's ultimate discharge it is noteworthy that ,although 'her conversation with Eshenberg was observed by -Hend- -erson, she was not told io discontinue it, nor was any effort made by .Henderson to have Eshenberg leave the plant. Graves; who had, also spoken to Eshenberg without permission and who apparently saw nothing extraordinary or to be concealed in so doing, was neither reported by Henderson nor reprimanded by the respondent. It is apparent that this incident standing alone afforded no reasonable basis for the summary discharge of an old and valuable employee. This fact, indeed, is recognized by Cassidy, who explained the dis- charge on the ground that after her transfer in August Shelnutt continued to leave her machine during working hours and that his patience was finally exhausted by the Eshenberg incident. Other than Cassidy's claim that she continued to leave her machine during working hours, the record contains no evidence of any infractions of the respondent's rules by Shelnutt during the period between her discriminatory demotion on August 10 and her discharge on January 6. As already noted, it does not appear that other employees who left their machines during working hours were in any manner disciplined. Under these circumstances it ^is a fair inference that Cassidy's pa- tience was exhaused by Shelnutt's continued union activity rather 'than her alleged violations of the respondent's rules. We find that the respondent transferred Shelnutt on August 10, 1938, and thereafter discharged her on January 6, 1939, for the reason HAWK & BUCK COMPA\TY, INC. 847 , that she joined and assisted the Union, thereby discouraging inember- ship in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. In view of the fact that we have found that the discrimina- tion against Shelnutt commenced some time prior to her participation in the representation proceeding, and there being no direct evidence that such participation provided an additional basis for the discrimi- nation against her on January'6, 1939, we do not find that by such discrimination the respondent engaged in a violation of Section 8 (4) of the Act. Accordingly, we will dismiss the complaint in this respect. Lulu Godsey was employed by the respondent from 1933 until her discharge on December 9, 1938. Like Shelnutt, Godsey was promi- nent in union affairs. She joined the Union on March 15, 1938, became 'its first president on' April 25, 1938, and was, spokeswoman for its bargaining committee. One week before her discharge she testified at the hearing in the representation case. In June 1938 Cassidy approached Godsey during working hours to inquire why she "was running around over the overall factory stating . . . ' [she] was going to be the floorlady." When Godsey replied that she had never done that, Cassidy said, "A's long as I am superintendent here, you will not be a floorlady." ' Godsey's'rejoinder was that as long as he was superintendent, she did not want to •be floorlady, whereupon Cassidy told her to "get it into your head that this plant is not going union.". On August 8, 1938, at the'end of the first bargaining' conference with Cassidy, Godsey, as spokeswoman for the committee, told Cassidy that the committee would see him again in "a couple- of days." Cassidy replied that Godsey might not be there in "a couple of days." This statement was clearly intended as a warning to Godsey that if her union activity persisted she would be discharged. As set forth above, on or about August 14, 1938, Cassidy told Shelnutt that Godsey caused more trouble than anyone and would find herself "going out of the plant quicker than she came in." On August 29, 1938, Godsey was laid off but, as already noted, was reinstated pursuant to the above-mentioned settlement agreement. On August 24 and October 24, 1938, two notices were posted in the plant by the respondent. The first stated that those employees who failed to make the nniinimum earnings required under the Fair Labor Standards Act 12 would be discharged when that Act became effective on October 24, 1938. ' The second notice listed Godsey and eight other employees and, recited that they had not earned the necessary mini- mum and that, unless advised to the contrary, the respondent would 12 52 Stat. 1060. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD apply for handicap classifications for them. On October 26 Cassidy applied to the Wage and Hour Division for handicap classifications for six of the employees listed on the notice. It is Cassidy's claim that Godsey was one of three employees who requested that no such application be made for them. Godsey testified that because of ill- ness she was absent, from the plant on the day the application blanks were distributed by one Judson. She further testified that on the following day she returned to work' and asked Cassidy to place her name on the handicap list but that he refused to do so and told her that he had no more application blanks and that he had "all of the girls" he could "handle . . . just now on the handicap list." The respondent did not call upon Judson to testify at the hearing and -made no effort to show that Godsey was in the factory when the blanks were distributed. The Trial Examiner, who had an oppor- tunity to observe the witnesses, rejected Cassidy's explanation and credited Godsey's testimony. We find, in accordance with Godsey's testimony and the Trial Examiner's finding, that the respondent did ailot afford God'sey an opportunity to be classified as a handicapped employee. On December 9, 1938, Godsey was discharged, allegedly because she had failed to make the minimum required under the Fair Labor Standards Act. The employees for whom Cassidy had applied for handicap status. were retained and continued in the respondent's employ for several months thereafter. In view of the foregoing, we do not credit the respondent's claim that Godsey was discharged because of her inability to earn the minimum wage established under the Fair Labor Standards Act or her unwillingness to be classified • as a handicapped employee. Rather, we-are convinced and find that Godsey was discharged by the respondent on December 9, 1938, because of her union member- ship and activity. By said discharge, the respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. Roxie Moser,, one of the respondent's oldest employees, was em- ployed by the respondent and its predecessor from 1923 until her discharge on December 9, 1938. On April 28, 1938, Moser joined the Union and thereafter solicited members in the factory during recess periods. Moser testified at, and attended most of, the hearing in the representation case in December 1938. Moser's empioyment was reasonably steady, except during 1937. Early in that year, she left the respondent's plant on a 7 months' leave of absence. When, in October, she returned to work, she was _ assigned to a felling machine rather than to the shirt unit, in which she had formerly worked. During the Christmas season of 1937, HAWK & BUCK COMPANY, INC. 849 Moser left the respondent 13 and obtained employment with another company in Waco. About 4 weeks later, she received, while at work, a telephone call from Forelady York who asked her whether she wanted to return to work in the respondent's plant. Moser inquired, "What doing?" York replied that she could have her "old place back on the shirt unit" and assured her that the work would be of a permanent nature. On the following day, Moser returned to work for the respondent and was employed in the shirt unit with one Emily Holmes.. Moser and Holmes performed separate functions in the unit, the latter banding sleeves while Moser hemmed pockets. In June 1938 Holmes was assigned to supervise a temporary unit and Nettie Carlan, a new employee, operated the sleeve bander in place of Holmes. When, about September 29, 1938, Holmes returned to the unit, her temporary work completed, Carlan was retained in the unit while Moser was transferred to less desirable work outside the unit.14 Neither Carlan nor Holmes were union members. Prior to September 29, 1938, there had been no complaint against Moser's work. On at least one occasion, early in 1938, her work had been the.. subject of favorable comment by Cassidy. The respondent claimed at the hearing that Carlan was' preferred to Moser because she was a younger and faster operator. Holmes testified, in support of this claim, that from personal observation she knew ' Carlan to be a faster operator than Moser. York testified to like effect. On the other hand, there is testimony by Moser that Carlan was very slow in her, work, that York had admitted this on one occasion during the summer of 1938, and that Carlan required 'constant assistance from Moser and another employee, who was especially assigned to help Carlan maintain the unit's proper pace. Moser also testified that shortly after she had been transferred, Holmes complained to her of Carlan's work and that Carlan, herself,' confided to Moser that Holmes had criticized her work in front of York. Holmes and York both denied that Holmes shad complained to the latter about Carlan's work, but Holmes did not -deny that'she had deprecated the quality of Carlan's work to Moser. There`is uncontradicted evidence that upon at least one occasion' during the summer of 1938, Moser com- plained to Cassidy of Carlan's. incompetence, and Cassidy replied that Moser should just continue along and added that "I think I 18Apparently Moser was laid off at that time because of slack work. 13 In the respondent's plant , a transfer from-unit to non -unit work amounts to a demo- tion. Employees who are not employees in units are apparently confronted with less desirable, working- conditions and, according to Cassidy, "expect eventually to be trans- ferred " to units After her transfer , Moser's earnings and working hours were materially reduced Her average weekly earnings amounted to $5, as compared with $11 while she was in the unit Her work-week, which averaged, so far as the record shows, 371/2 hours in the unit, was reduced to 23 bouts after her transfer. ,,, , 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD can'depend on you to tell me just how it comes out." In=considering the weight to be given Holmes' and York's testimony, we are mind- ful that the issue before us is not whether Carlan with a year's additional experience was, at the time of the hearing, a faster oper- ator than Moser. The sole issue which' concerns us 'is whether, at the time of the alleged discrimination, against Moser, Carlan was then a faster and.better employee than Moser or gave strong promise of soon: being faster and better. It does not appear how Holmes, at the time of Moser's transfer, could have, had any accurate per-_ sonal knowledge of Carlan's capacity as a worker. The testimony of York, moreover, must be weighed in the light of her clear hostility toward the Union. Under .all of the circumstances, Ave find that' at the time of her transfer, Moser was a considerably better worker than Carlan. We are, convinced that, the true explanation for Moser's transfer may be found in her union membership and activity. We find that the respondent transferred Moser to less favorable work on September 29, 1933, for the reason that she joined and assisted the Union, thereby discouraging membership in the Union, and inter- fering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. After her transfer, Moser operated a play-suit bander., She had never,, during her 15 years' prior employment' in the plant, been called upon to do that type of work, and it does not appear that ex- perience in one, part of the plant would enable an employee .to learn to operate -a play-suit bander within a Jew weeks. • Nevertheless, Moser was listed on the October 24 notice, as being subject to dis- charge.for inability,to earn the minimum rate' of, 25,cents per hour required under the=Fair Labor Standards Act. Prior to'her dis- criminatory transfer, while, she was in the unit, Moser's earnings had averaged approximately 28.3 cents an hour. During the 31/7-week interval between her„ transfer and the posting of the October, 24 notice, her average,hourly earnings had amounted to about 19.6 cents. Over the following, month and a half, she was, able to raise her average earnings to 22 ;cents. According to Moser, the bander on which she worked continually skipped stitches, thereby•making it nec- essary for; her, to consume working time in going over her work and making the necessary, repairs. Avis Fritsch, a•,non-union_ employee called by the respondent as a witness at the hearing, testified that the bander assigned to Moser worked properly only wheii operated at a low speed. We, conclude, in accordance with the finding of the Trial Examiner, that' the bander upon which Moser was required to learn a new type of work, was defective.- • On December 9, Moser 0^ • Fritsch testified' that another ' employee 'and she had been able to earn the iequired late on the same bander operated by Moser There is no showing, however , that these or any other operators had ea,ned the necessary minimum on that bander within 2 months HAWK & BUCK COMPANY, INC. 851• was discharged, allegedly because of the loss caused the respondent by her failure to make the required minimum. Entirely inconsistent with his treatment "of Moser is Cassidy's consideration for Lou Moore, another employee, who, at the time of Moser's discharge, had caused the respondent far greater loss than had Moser and continued to do so for 9 months thereafter.1' Moore did not appear on the October 24 list and was retained until September 6, 1939, on the ground that she was a new employee and had complained that conditions "in the back" where she worked were difficult. How- ever, Moser also worked "in the back" after the initial discrimination against her and conditions there must have been equally difficult for her. Further, she had been employed for less than 3 months on new and unfamiliar work before her discharge, whereas Moore had been employed by the respondent and afforded an opportunity to improve her work for over a year. Moreover, Cassidy employed 'or reemployed eight employees in the spring of 1939 and retained them from 31/2 to 6 months -while each of them was causing greater loss to the re- spondent than, had Moser during the 10-week period that she had worked on the bander ' prior to her discharge on December 9. In considering the evidence as to Moser's ultimate discharge, moreover, we are mindful of the fact that, had Moser not been discriminatorily transferred from the unit -in' which she properly belonged, there would have been no question raised as to her ability to earn the re- quired minimum rate and she would not have been listed on the, October 24 notice. Upon' all the evidence, we find that Moser was discharged by the, respondent on December 9, 1938, because of her union membership and activity. By said discharge, the respondent discouraged mem- bership in the Union and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. ' C. Conclusions as to interference, restraint, and coercion; In view of the foregoing,' it is apparent that' the respondent, after September 19, 1938, interfered with, restrained,,and coerced its em- ployees in the exercise of their rights under the Act by transferring Roxie Moser on or about September' 29, 1938, 'by discharging Roxie Moser and Lula' Godsey on December 9, 1938, and by discharging after they had first - been assigned to it or that'a'considerable part of their 1'oiking time had been devoted to operating the bander, while they were earning the minimum , Fritsch's testimony is not, therefore , inconsistent with our conclusion that the bander was defec- tive, for 'even on a defective machine, it ' might be possible for employees to earn the required minimum during short isolated periods, of to do so mole consistently , after. they had gained experience in operating the machine and allowing for its defects "At the time of her discharge, the loss Moser had caused the respondent amounted to approximately $4.36. During the sanie period Moore 's failure to make the inmuuum had resulted in a loss of $20 58 to the respondent 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bertha Shelnutt on January 6, 1939. Thus the respondent has not lived up to the settlement agreement which it.now seeks to invoke as a bar to the Board's consideration of the events prior to September 19, 1938. We therefore find that by Cassidy's conversations with Shelnutt on or about April 29, August 14, and December 3, 1938, by his three speeches to the employees during July and August, by his comments to Godsey in June and on August 8, by York's comments to Shelnutt on August 7 or 8, and by the discriminatory transfers and discharges, considered above, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, occurring in connection with the operations of the respondent set forth 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 com- merce and the free flow of commere. V. THE REMEDY It is essential in order to effectuate the policies of the Act that the' respondent be ordered to cease and desist from certain activities and practices in which we have found it to have engaged' and, in aid of such order and as a means for removing and avoiding the consequences of such activities and practices, that it be directed to take certain affirmative action more particularly described below. We have found that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. We shall, order the. respondent to cease and desist from such interference, restraint; and coercion. We have found that the respondent has discriminated in regard to the hire and tenure of employment of Lula Godsey. The respond- ent, nevertheless, contends that because of Godsey's failure to earn the minimum rate required under the Fair Labor Standards Act, the Board cannot properly direct her reinstatement. As already noted, however, the respondent refused to apply for handicap classi- fications for Godsey. Those employees for whom the respondent did apply. were .retaine& as -handicapped employees until April 3, 1939,11 4 months after Godsey's discharge. Thereafter, Mamie Harbour, one of the group retained under this arrangement, was 'continued , 17 On April 2, 1939, the respondent had been notified by the wage and Hour Division that those for whom application had been made could not be classified as handicapped employees. HAWK & BUCK COMPANY, INC. 853, as an employee-because she had managed to raise her earnings above the required -rate. It is not unlikely that Godsey also would- have found it possible to increase her earnings to the' necessary level, had she, like-the',other employees, been-afforded the 4-month additional period in which to do so. In any event, she-is entitled now-to the sane treatment which- she would have received had there been no discrimination against her. We, therefore, shall direct the respond-' cut to employ Godsey for a minimum period of 4' months during which she shall be kept reasonably supplied with working material's and given a fair opportunity to earn the necessary rate. During this trial period, Godsey shall be compensated at the minimum rate established under the Fair Labor Standards Act, unless her earning, exceed such minimum, in which event she shall be dompensated on the basis of her actual earnings. If Godsey's average -weekly earn- ings during the last 3 weeks of the trial period are equal to; or exceed, the minimum earnings required under the Fair Labor Stand- ards Act, 'she shall be continued by the respondent as a regular employee without prejudice to her seniority and other rights and privileges. -In addition to the foregoing, Godsey shall be made whole for any loss of pay she may have suffered by reason of the aforesaid discrimination, by payment to her-of a sum of money equal to that which she normally would have earned as wages from December 9, 1938, to the date of the respondent's offer of reinstatement,", less net. earnings during such,period.19 . ` We have also found that the respondent not only discriminated in regard to the hire and tenure of employment of Bertha Shelnutt and Roxie. Moser, but also discriminated in regard to the terms and conditions of their employment, by'transferring them to less desirable work on August 10 and September 9, 1938, respectively. We shall, therefore, order the respondent to offer to Shelniltt and Moser im- mediate reinstatement to the respective position each occupied im- mediately prior to her discriminatory transfer, or to a substantially equivalent position, without prejudice to her seniority and other a is In view of the fact that the respondent, by its illegal discrimination against Godsey, precluded any possibility that she would raise her eainmgs to the minimum required under the Fair Labor Standards Act by April 3, 1939, we will not indulge in speculation as to this possibility, but will order that she be given back pay for the entire period from the discrimination against her until compliance with our order. 19 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent. tthich would'not h.ne been inemied but for the discriail- nation against him and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Aniei ice, Lumber and Sawmill Wom ers Union, Local 2;70, 8 N L R. B 440 Monies - received for work performed upon Fedeial, State, county, municipal, or other work-relies projects are not considered as earnings, but as provided below in-the Order, shall 'he- deducted from the sum due the employee, and the amount thereof shall be paid over to the, appropriate fiscal agency of the Federal, State,, county, municipal or other government or governments which supplied the funds for said work-relief projects. 253030-42-vol. 25 55 ' ' 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights and privileges.20 We shall also order the respondent to make Shelnutt and Moser whole for any loss of pay they may have suffered by reason of the aforesaid discrimination, by payment to each of them of a sum of money equal to that which she normally would have earned as wages from the date of said discrimination to the date of the respondent's offer of reinstatement, less net earnings 21 during such period. 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. United Garment Workers of America, Local No. 229, is al labor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Lula Godsey, Bertha Shelnutt, and Roxic Moser, and as to the terms and conditions of employment of Bertha Shelnutt and Roxie Moser, thereby discouraging membership in United Garment Workers of America, Local No. 229, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. 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. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. By discharging Bertha Shelnutt on January 6, 1939, the respond- ent did not engage in an unfair labor practice within the meaning of Section 8 (4) 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 Rela- tions Act, the National Labor Relations Board hereby orders that the respondent Hawk & Buck Company, Inc., Waco, Texas, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Garment Workers of America, Local No. 229, or any other labor organization of its em- 20 The respondent did not contend that Moser failed to earn the required minimum rate under the Fair Labor Standards Act during any period other than that following her dis- criminatory transfer . Since we are directing that Moser be reinstated to the position she occupied prior to that transfer, it is unnecessary to reinstate her for a trial period as in the case of Godsey. 21 See note 19. HAWK & BUCK COMPANY, INC. 855 ployees, by discharging, transferring, laying off , or refusing to rein- state any of its employees , or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, 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 purposes of collective bargaining or other mutual aid or 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) Offer to Bertha Shelnutt and Roxie Moser immediate and full reinstatement to the positions occupied by them immediately prior to l heir transfers on August 10, 1938, and September 29, 1938, respec- tively, or to substantially equivalent positions, and offer to Lula Godsey immediate and full reinstatement to her former, or a sub- stantially equivalent position and continue to employ Lula Godsey for a minimum period of 4 months under working conditions that would afford her a fair and reasonable opportunity to earn the mini- mum wage required under the Fair Labor Standards Act, all without prejudice to the seniority and other rights and privileges of the afore- said three employees, and in accordance with the principles laid clown in 'the section above entitled "The Remedy"; (b) Continue Lula Godsey as a regular employee after termina- tion of the aforesaid 4-month period, without prejudice to her seniority or other rights and privileges, in the event that her average weekly earnings during the last 3 weeks of such 4 months' period are at least equal to the minimum wage required under the Fair Labor Standards Act; (c) Make whole Bertha Slielnutt and Roxie Moser, and Lula Godsey, for any loss of pay they may have suffered by reason of the respondent's discriminatory acts, by paying to each of them a suns of money equal to that which she would normally have earned as wages from August 10, 1938, September 29, 1938, and December 9, 1938, respectively, until the date of offer of reinstatement, less the respective net earnings of each of the aforesaid employees during said periods; deducting, however, from the amount otherwise due each of these employees, monies received by her during said period for work performed upon Federal, State, county, municipal, or other work-relief projects and paying over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for such work-relief projects; 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - (d) Immediately post, and `keep posted for a period, of at least- sixty (60) consecutive days from the date of posting, in conspicuous- places throughout its plant at Waco, Texas, notices to its employees, stating that it will cease and desist in the manner set forth in para- graphs 1 (a) and (b) and that it will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; that the respondent's employees are free to become or remain members of the United Garment Workers of America, Local No. 229; and- that tha respondent will not discriminate against any employee because of membership or activity in that organization; (e) Notify the Regional Director for the Sixteenth Region in writing within ten (10) days from the date of this Order what steps- the respondent has taken to comply therewith. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.