Fox-Coffey-Edge Millinery Co., Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1940

20 N.L.R.B. 637 (N.L.R.B. 1940)

In the Matter of FOX-COFFEY-EDGE MILLINERY Co., INC. and UNITED
HATTERS, CAP AND MILLINERY WORKERS' INTERNATIONAL UNION,
LOCAL 57
Cases Nos. C-783 and R-767.-Decided February 21, 1940
Millinery Manufacturing Industry-Interference, Restraint, and Coercion:
posting anti-union bulletin ; expressed opposition to labor organization ; persuad-
ing employees to refrain from joining union ; anti-union petition, circulation
among employees ; membership and participation in association of employers
engaged in blacklisting discharged union members; charges of, by participation
in activities of two employers' associations dismissed because of insufficient
evidence ; ordered to cease and desist from blacklisting union members-Dis-
crhnination,: discharges : for union membership and activity ; to discourage mem-
bership in union-Retnstatemvnt Ordered-Back Pay: awarded : from date of
discharge to date of reinstatement or offer of reinstatement-Collective Bargain-
ing: charges of refusal to bargain collectively dismissed, upon failure of proof
of majority representation-Investigation of Representatives: controversy con-
cerning representation of employees: controversy concerning appropriate unit;
employer disputes claim of majority representation-Unit Appropriate for Col-
lective Bargaining: all production employees, including blockers, cutters (by
hand and machine), operators, trimmers, makers, part-time designers who are
also engaged in production work, the women who work on hat blocks,,and the
assistant cutters, excluding foremen and floorladies, full-time designers, errand
girls, order fillers, ticketers, salesgirls, the shipping department, the office em-
ployees, and inspectors-Representatives: proof of majority representation found
insufficient-Election Ordered: election to be conducted at such time as the
Board shall in the future direct.
Mr. Warren Woods and Mr. L. N. D. Wells, Jr., for the Board.
Wilson, Ogden & Reichmnan, by Mr. George O. Wilson, of Dallas,
Tex., for the respondent.
Mr. Jim Guthrie, of Dallas, Tex., for the Union.
Mr. Howard S. Friedman, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On May 22, 1937, and August 20, 1937, United Hatters, Cap and
Millinery Workers' International Union, Local 57, herein called the
20 N. L. R. B., No. 66.
637
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, filed charges with the Regional Director for the Sixteenth
Region (Fort Worth, Texas) charging that the Fox-Coffey-Edge
Millinery Company, Inc.,' Dallas, Texas, herein called ..the respond-
ent, had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1), (3), and (5)
and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act.
On August 17, 1937, a petition was filed with the said Regional
Director by United Hatters, Cap and Millinery Workers' Inter-
national Union, herein called the International Union, on behalf
of the Union, alleging that a question affecting commerce had arisen
concerning the representation of employees.of the respondent, and
requesting an investigation and certification of representatives, pur-
suant to Section 9 (c) of the Act. On September 11, 1937, the
National Labor Relations Board, herein called the Board, acting
pursuant to Section 9 (c) of the Act, and Article III, Section 3, of
National Labor Relations Board Rules and Regulations-Series 1,
as amended, ordered an investigation of the question concerning
representation and authorized the Regional Director to conduct it
and to provide for an appropriate hearing on due notice. At the
same time the Board, acting pursuant to Article III, Section 10
(c) (2), and Article II, Section 37 (b), of said National Labor Rela-
tions Board Rules and Regulations, ordered the cases against the
respondent consolidated for purposes of hearing with certain other
cases involving other millinery manufacturers in Dallas, Texas.2
Upon the charges, the Board, on September 18, 1937, by Edwin A.
Elliott, Regional Director for the Sixteenth Region, duly issued its
complaint alleging that the respondent had engaged in and was engag-
ing in unfair labor practices within the meaning of Section 8 (1), (3),
and (5) and Section 2 (6) and (7) of the Act. The complaint and
accompanying notice of hearing thereon and on the petition were duly
served upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged,
in substance, (1) that the respondent discharged and refused to rein-
state Mingo Scott, O. L. Cantrell, Mrs. Theda Sledge, Miss Mossie
Crofford, Mrs. Naomi Courtlier, Mrs. Billie Roberts, and Miss Mildred
Crofford, because of their membership in the Union, thereby discrimi-
nating against them in regard to hire and tenure of employment and
discouraging membership in the Union; (2) that the respondent on
1 The respondent was incorrectly designated in the complaint and in the pleadings as
Fox-Coffey-Edge Millinery Co., Inc., and as Fox -Coffey-Edge Co.
a The following cases were included in the Order of Consolidation : Goldstein Hat
Manufacturing Company, XVI-C-77 and XVI-R-51 (R-.349) ; M. Bierner & Son, XVI-
C-122 (C-767) ; Em-Bee Hat Mfg . Co., Inc ., XVI-C-74 ; Block-Friedman Company,
XVI-C-76 (C-766 ) ; and Gold -Claire Hat Manufacturing Company, XVI-C-149. Separate
disposition was made of each of these cases.
FOX-COFFE`Y-EDGE MILLINERY COMPANY, INC. 639
August 12, 1937, and thereafter refused to bargain collectively with
the Union as the exclusive representative of the employees of the
respondent within an appropriate unit although the Union had been
designated as their representative by a majority of such employees;
and (3) that the respondent by the above acts, by inducing certain
persons in the city of Dallas, Texas, to interfere with, restrain, and
coerce its employees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act, by participating in the activities of certain organi-
zations in Dallas in the preparation and dissemination of anti-union
propaganda, and by other specified acts, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
On September 27, 1937, the respondent filed a motion to dismiss the
complaint on the grounds, (1) that the Board was without jurisdiction,
and (2) that the complaint was not in accordance with the charges and
therefore not in conformity with the provisions of the Act nor filed
in accordance with National Labor Relations Board Rules and Regu-
lations-Series 1, as amended. The Trial Examiner made no ruling
on this motion at the hearing but subsequently denied it in his Inter-
mediate Report. His ruling is hereby affirmed .3 Subject to the reser-
vation of its rights on the motion to dismiss, the respondent, on Sep-
tember- 27, 1937, filed in answer to the complaint in which it denied
that the Act was applicable to it on the ground that its business did
not come within the terms "commerce" and "affecting commerce" as
defined in the Act, denied the commission of any unfair labor practices,
and pleaded affirmatively that it had discharged the employees named
3 One ground assigned in the motion to dismiss , namely, that the complaint was not
in accordance with the charges , was stated in general language and did not specify
in what respect the complaint differed from the charge. It is apparent , however, from
the respondent 's objections to the introduction of evidence during the course of the
hearing that the respondent was referring in part to the allegations of paragraphs 13, 14,
and 15 of the complaint concerning the respondent 's participation through the Dallas
Millinery Council, the Dallas Chamber of Commerce , and the Dallas Open Shop Associa-
tion in concerted activities to interfere with , restrain , and coerce its employees in the
exercise of their rights guaranteed by Section 7 of the Act. The respondent 's motion
and subsequent objections to certain evidence are apparently based upon the theory that
the complaint and the proof introduced thereon are strictly limited to matters specifically
set forth in the charges . In this the respondent is in error . The function of the charge
is to call the attention of the Board to the fact that certain unfair labor practices are
alleged to have been committed . It is not essential that the charge describe the alleged
unfair labor practices with the same particularity as the complaint . The issues in the
case are based upon the allegations of the complaint rather than those of the charges.
Matter of Lone Star Bag and Bagging Company and Textile Workers Organizing Com-
mittee, 8 N. L. It. B. 244 . The complaint in the instant case sets forth clearly the allega-
tions under consideration . The respondent made no claim at the hearing that it was
unable to meet these issues nor did it make any motion to make the pleadings more
specific. By its answer it indicated that it was fully aware of the issues raised by
paragraphs 13, 14, and 15 of the complaint and was prepared to meet these allegations.
Under the circumstances the respondent was in no way prejudiced in its defense by
the fact that the charges were not amended at the hearing to include these matters.
See also N . L. R. B. v . National Licorice Co., 104 F. ( 2d) 655 ( C. C. A. 2 ), enforcing
as modified Matter of National Licorice Company and Bakery and Confectionery Workers
International Union of America, Local Union 405, Greater New York and Vicinity,
7 N. L. It. B. 537, cert. granted October 9, 1939.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the complaint for the reason that their work was unsatisfactory.
On the same day the respondent also filed an answer to the petition
in the representation case in which it denied the allegations set forth
therein.
Pursuant 'to notice , a hearing on the consolidated cases involving
this respondent was held in Dallas , Texas, on September 30, October
1, 2, 4-9, 11-13, and November 16, 1937, before William H. Griffin 4 the
Trial Examiner duly designated by the Board. The Board, the re-
spondent , and the Union were represented by counsel and all partici-
pated in the hearing. Full opportunity to be heard , to examine and
cross-examine witnesses , and to introduce evidence bearing upon the
issues was afforded to all parties . At the commencement of the hear-
ing on September 30, 1937, the charges and pleadings in each of the
consolidated cases were introduced in evidence .5 George O. Wilson and
Emil Corenbleth appeared on behalf of the various respondents whose
cases were still pending under the Order of Consolidation. Both
attorneys entered oral objections to the Order of Consolidation issued
by the Board and contended that the order was improperly entered
without notice to them and was prejudicial to the rights of their
respective clients. The Trial Examiner overruled the objections to
the Order of Consolidation and ruled • that the record in each case
heard under the consolidation order would be separate and distinct
and that both counsel were at liberty to remain at the hearing and
participate to any extent that they saw fit. We find that the respond-
ent was in no way prejudiced in its defense by the consolidation order,
or by these rulings of the Trial Examiner , which are hereby affirmed.
Each case was heard seriatim with leave granted by the Trial Exam-
iner to the Board's attorney to introduce in any case evidence which
has been presented in any other of the consolidated cases and with
leave to counsel for the respective respondents to cross-examine wit-
nesses testifying to such evidence so introduced. During the course
of the hearing counsel for the Board moved to dismiss the allegations
of the complaint with respect to Miss Mildred Crofford for the reason
that she failed to appear at the hearing although duly notified thereof.
This motion was allowed by the Trial Examiner . During the hear-
ing the Trial Examiner made various rulings on other motions of the
parties and on objections to the admission of evidence . The Board
- 'The name of the Trial Examiner was incorrectly designated as William H. Griffen in
the Order of Designation.
s The Board at this time also was given leave to amend the complaint in this case by
adding to it the name of Joseph Bembenek , who was alleged to have been refused rein-
statement by the respondent because of his union membership , following a current labor
dispute. This amendment was allowed by the Trial Examiner but during the hearing in
this case, upon the request of Bembenek , the charge was withdrawn and a motion by the
Board to withdraw the amendment and dismiss the complaint as to him was granted by
the Trial Examiner . The ruling of the Trial Examiner is hereby affirmed.
FOX-COFFEY-EDG'E• MILLINERY COMPANY, INC. 641
has reviewed all such rulings and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
On July 11, 1938, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon all the parties, in which
he found that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recom-
mended that the respondent cease and desist from its unfair labor
practices and take certain specified affirmative action to effectuate the
policies of the Act, but recommended that so much of the complaint
as relates to the refusal to bargain in violation of Section 8 (5) of the
Act be dismissed. In his Intermediate Report the Trial Examiner
denied certain motions upon which he had not ruled during the hear-
ing. The Board has reviewed these rulings of the Trial Examiner
and finds that no prejudicial errors were committed. His rulings are
hereby affirmed.
Exceptions to the Intermediate Report were thereafter filed by the
respondent. Pursuant to notice, a hearing for the purpose of oral
argument was held before the Board in Washington, D. C., on Septem-
ber 20, 1938. The respondent was represented by counsel and par-
ticipated in the argument. The Union filed no exceptions to the Inter-
mediate Report nor did it avail itself of the opportunity to present
oral argument. Neither the Union nor the respondent submitted a
briefs The Board has considered the exceptions of the respondent
and its argument thereupon, and finds the exceptions, save as con-
sistent with the findings, conclusions of law, and order set forth below,
to be without merit:
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a Texas corporation, is engaged in the manufacture
and sale of ladies' hats and millinery in Dallas, Texas. The business
of the respondent is seasonal and it employs on the average approxi-
mately 90 persons.
The principal raw materials used by the respondent are fur or wool
felt, silks, and ribbons. Ninety per cent of. these raw materials are
purchased outside the State of Texas. The respondent also manu-
factures straw hats from straw braids which are produced in foreign
countries and imported by merchants in New York who resell them
to the respondent.
The respondent filed with the Board a written statement of its oral argument which
the Board has considered.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The gross sales of the respondent in the fiscal year ending Novem-
ber 30, 1936, were in excess of $300,000, with sales outside the State
of Texas exceeding 33 per cent of this total. Sales outside the State
of Texas for the first 9 months of 1937 constituted approximately the
same proportion of total sales.
H. THE ORGANIZATION INVOLVED
Local 57, a subsidiary of United Hatters, Cap and Millinery
Workers' International Union which is affiliated with the American
Federation of Labor, is a labor organization. It was chartered as a
local union by United Hatters, Cap and Millinery 117orkers' Inter-
national Union on September 8, 1936. It admits to its membership
employees in the productive branch of the millinery industry.
III. THE UNFAIR LABOR PRACTICES
A, Backgrownd of the unf air labor practices
In the early part of 1935, Max Zaritsky, president of the Inter-
national Union, received several letters from millinery workers in
the Dallas area requesting that he send an organizer to Dallas for
the purpose of forming a union. Shortly thereafter, George Baer,
an organizer, was sent to Dallas by the International Union for that
purpose and conducted a meeting which was attended by approxi-
mately 100 workers. Thereafter, Baer left Dallas and organizational
work was continued by the local workers until June or July 1936,
when at their request Baer was permanently stationed in Dallas by
the International Union. On September 8, 1936, some 40 or more
millinery workers, including several employees of the respondent,
went to Fort Worth, Texas, where the Union was granted a charter
by the International Union.
B. Interference,, restraint, and coercion
(1) The activities of the respondent
The respondent was well aware of the activities and membership
of the Union from its inception in September 1936. Fox, the vice
president and general manager of the respondent, stated at the hear-
ing that he "had a pretty fair knowledge of who belonged to the
Union" and "could have put my hand on everyone of them's head.
They knew it too." The respondent. utilized this admitted knowl-
edge and took steps to resist the unionization of its employees.
In late September or the early part of October 1936, the respond-
ent posted on the bulletin boards on the fifth and sixth floors of its
factory the following notice :
FOX-COFFEY-EDGE MILLINERY COMPANY, IN C. 643
"BULLETIN"
It has come to my attention that certain people who are at-
tempting to organize a union in this city have called upon some
employees of this firm and have told them it would be necessary
to join this Union in order to hold their positions.. That if you
did 'not join now you could not join later and would lose your
position.
-This is to inform every employee that the above is a false
statement and should be ignored by all employees. Furthermore
this is to advise that this firm will under no circumstances sign
a contract with any union and will continue to operate as an
"Open Shop." As in the past all employees who properly con-
duct themselves and are loyal to this institution will be given
every consideration and protection within our power. The
undersigned will be glad to discuss this matter with any
employee.
Fox kept the bulletin prominently posted in the factory and testified
at the hearing that the bulletin was still posted in the factory and
was "going to stay there." 7
Although the stated purpose of the notice was to inform the
respondent's employees of the falsity of alleged representations made
to them by undisclosed persons interested in forming a union, the
language and intent of the notices far exceeded that scope. The
respondent did not confine the notice to a simple denial of the truth
of the alleged representations but utilized the occasion to convey
unmistakably to its employees its hostility to the Union and to dis-
courage affiliation with it. The respondent first emphasized that
there was no necessity for them to join the Union, then announced a
fixed determination that "under no circumstances would it sign a
contract with any union," thus eliminating one of the most important
incentives to such membership and rendering futile a common and
legitimate objective of labor organizations; 8 and, finally, assured its
7 The respondent persisted in this action despite a warning by the Regional Director
in the summer of 1937 during the course of his preliminary investigation of the charges
that the bulletin might be construed as a violation of the Act.
eSee N. L. R. B. V. Jones and Laughlin Steel Corporation , 301 U . S. 1, 43-4 (1937),
rev'g 83 F. (2d) 998 ( C. C. A. 5 ), and enf'g Matter of Jones a Laughlin Steel Corporation
and Amalgamated Association of Iron, Steel & Tin Workers of North America, Beaver
Valley Lodge No. 200:
Employees have their ( correlative ) right to organize for the purpose of securing
the redress of grievances and to promote agreements with employers relating to
rates of pay and conditions of work.
N. L. R, B. v. Sands Manufacturing Co., 306 U. S . 332, 342 ( 1939 ), aff'g 96 F . ( 2d) 721
(C. C. A. 6 ) which reversed Matter of The Sands Manufacturing Company and Mechanics'
Educational Society of America, 1 N. L. R. B. 546:
The legislative history of the Act goes far to indicate that the purpose of the
statute was to compel employers to bargain collectively with their employees. to
the end that employment contracts binding on both parties should be made.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees who "properly conduct themselves and remain loyal" as
"in the past" every consideration and "protection" against what could
only have meant the Union. That this statement had the effect upon
the employees intended by the respondent is attested by the testimony
of a number of employees who were not union members.9
We find that the posting of the bulletin constituted a plain expres-
sion of the respondent's hostility toward the Union and interfered
with, restrained, and coerced the respondent's employees in the
exercise of their rights guaranteed by Section 7 of the Act.1°
About the middle of October 1936, soon after the posting of the
bulletin, Fox ordered his foreman to instruct the male employees to
assemble in the showroom of the factory after working hours. Fox
spoke to the 18 male employees for half an hour. Carl Long, one
of the men who heard the speech, testified that Fox told them of the
results of his experience with a union in St. Louis; that he claimed
that the union there had cut off the power and run his place of busi-
ness; and that he stated that he would not stand for any outsider
coming in and telling him how to run his business. According to
Long, "he (Fox) was against the Union as far as his part, but he
didn't tell us we couldn't join." Long, who was called as a witness
by the respondent, was not in the employ of the respondent at the
time of the hearing, nor was he then a union member; consequently
his testimony may be regarded as that of a disinterested witness.
We find that Fox made the foregoing statements attributed to him
by Long. This testimony is supplemented by that of various union
members who testified that Fox stated that it was his business, that
he would not have the Union running it, that he would not recognize
the Union, that he could get all the money to fight the Union that
he wanted, and that he would fight the Union any way that he could.
We find that Fox made these statements. Fox does not deny specifi-
cally the foregoing statements but states that he did not tell the
men that they could not join the Union or that they would lose their
jobs if they did and explains that his employees had asked him about
joining the Union, that he had heard of the "misrepresentations" by
the union organizers, that it was his purpose to correct these mis-
representations, and that he was familiar with the rights of his
9 Lila Mitchell, a designer , testified that from reading the bulletin she thought that
Fox did not want a union inside the plant ; May Alford, a trimmer , testified that the
bulletin meant that Fox "would stand by his help . . . in every way . . . (arid) not
let the Union control his business ." Numerous other employees testified that they
subsequently signed a petition indicating that they were not union members in order
to express their loyalty to the respondent and that they believed that anyone who joined
the Union was not loyal.
i° See Matter of Nebel Knitting Company, Inc. and American Federation of Hosiery
Workers , 6 N. L. R. B. 284, enf'd as mod. N. L. R. B. v. Nebel Knitting Company, Inc.,
103 F. (2d) 594 (C. C. A. 4) ; Matter of Titmus Optical Com -panv"and Optical Workers
Union Local No. 20682, 9 N. L. R. B. 1026; Matter of Goshen Rubber and Manufacturing
Company and United Rubber Workers of America, Local j$I24, 11 N. L . R. B. 1346.
FOGS-COF'F'EY-EDGE 2K1LLINERY COMPANY, INC. 645
employees while they were not.. Even if we were to credit Fox's
explanation of his motive, which we do not, it would not alter our
conclusion that this speech made while the Union was carrying on its
organizational campaign among the employees necessarily deterred
them from exercising freely their right to self-organization.71 We
find that by Fox's speech the respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
The respondent's outspoken opposition to the Union was followed
by the discharge on October 30, 1936, of two active union members,
O. L. Cantrell and Mingo Scott.1' -
At various times during the fall of 1936, Mrs. Hallie Stubblefield,
floorlady of the sixth floor, questioned Mrs. Diebel, a machine oper-
ator ,13 about the activities of the Union and inquired whether Mrs.
Diebel was attending union meetings that were being held. Mrs. Stub-
blefield told this employee that "she didn't think that there would
be any good come of it, that they were just promising something that
we would never get." We find that by interrogating Mrs. Diebel
concerning union affairs and her participation therein and by dis-
paraging the Union the respondent interfered with, restrained, and
coerced its employees in the exercise of their rights guaranteed by
Section 7 of the Act.
The Union held no open meetings until August 1937 but continued
its organizational work among the employees through individual
solicitation. Between January 28, 1937, and February 1, 1937, the
respondent discharged Mrs. Theda Sledge, Miss Mildred. Crofford,
Miss Mossie Crofford, Mrs. Billie Roberts, and Mrs. Naomi Courtlier,
all members of the Union.14
On August 5, 1937, the first open meeting of the Union was held
at the Jefferson Hotel in Dallas. Approximately 125 persons, in-
cluding employees of the respondent, attended the meeting, which
was addressed by Baer and Zaritsky. It was decided to draw up
demands to be presented to the millinery manufacturers, including
the respondent.
11 See Matter of Nebel Knitting Company , Inc. and American Federation of Hosiery
Workers, 6 N. L. R . B. 284, enf 'd as mod . N. L. R. B. V. Nebel Knitting Company, Inc.,
103 F. (2d) 594 (C. C. A. 4) ; Arthur L. Colten and A. J. Colman., copartners, doing
business as Kiddie Kover Manufacturing Company and Amalgamated Clothing Workers
of America, 6 N. L. R. IS. 355, enf'd N. L. R. B. v. Arthur J. Colten, etc., 106 F. (2d) 179
(C. C. A. 6) ; Matter of Lindeman Power and Equipment Company and International
Association of Machinists , 11 N L . R. B. 868 ; Matter of Mexia Textile Mills and Textile
Workers Organizing Committee, 11 N. L. R. B. 1167.
"These discharges are discussed in detail in Section C, (1), infra.
18 At that time Mrs. Diebel was not a member of the Union but she joined sometime
after Easter 1937.
14 These discharges , except that of Miss M ildred Crofford , are discussed in detail in
Section C, (2), infra.
283031-41-vol. 20-42
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 9, 1937, Baer was assaulted and kidnapped,15 upon leav-
ing the office of Bierner, one of the Dallas millinery manufacturers,
after attempting unsuccessfully to arrange a collective bargaining
conference with the manufacturers. When this incident occurred, a
strong strike sentiment developed among the union workers. On
August 11, 1937, a mass meeting of the male union members was held
and a proposal was submitted to call a strike immediately and with-
out warning because of the assault on Baer. Zaritsky, who returned
to Dallas that day, prevailed upon those present to defer a strike
pending a further attempt by the Union to bargain collectively with
the manufacturers. On August 12, 1937, the Union sent identical
letters to each of the manufacturers, in which the Union claimed to
represent a majority of the particular manufacturer's employees, re-
quested recognition as exclusive bargaining agent, proposed the estab-
lishment of certain wages, hours, and working conditions, and
suggested the setting up of an arbitration board in the industry.l"
On the same day that the Union sent one of the afore-mentioned
letters to the respondent, a group of five of the respondent's- female.
employees working on the fifth floor left their work during working
hours and prepared the following petition :17
To Employes* of Fox Coffey Edge,
We, the undersigned employees of Fox Coffey Edge of Dallas
Texas, do this day do* declare ourselves free and independent
employees of said factory in so much as we are highly pleased
with the present working conditions and management of said
factory. We petition this Company for whatever protection it
may afford us in our employment that such conditions may con-
tinue to exist, and if there be any foreign Elements or C. I. O.
agitors* in this factory that such be not premitted* to exist
that we may be premitted* to e* serve this Company un-
* So in the original.
16 The Baer incident is discussed, infra. We make no finding that the respondent was
responsible for it but set it forth merely as part of a sequence of events.
10 The alleged refusal to bargain is treated in Section III D, infra.
11 The five employees met in the women's washroom on the fifth floor. All of them
were aware that a strike was imminent. Most of them claimed that their only purpose
In composing the petition was to express their loyalty to the respondent but one stated
that she did it to find out who belonged to the Union and who did not. Alma Nanny, a
maker and designer, wrote out the petition in longhand and four other employees, Mrs.
J. B. Johnson, a designer, Ann Jones, a cutter, Cora Kidd, a maker, and Edna Mye, a
maker, were present and aided in its composition. While the authors claim that the
document was composed by writing down the various phrases suggested by each, no one
could recall authorship of any particular phrase except for one woman who testified that
she suggested the opening phrase "We, the undersigned employees of Fox Coffey Edge."
These employees denied knowledge of any similar petition, yet the phraseology used is
practically identical with that used in a petition, which is in evidence, which had been
circulated a few days prior to this one among the employees of the D & B Pump & Supply
Company in Dallas. See Matter of Enasco Derrick and Equipment Company (D of B
Division) and Steel Workers Organizing Committee, 11 N. L. It. B. 79.
FOX-COFFEY-EDGE MILLINEd1.Y COMPANY, INC. 647
biased by outside labor influence where as this factory may
continue to operate as business premits.*
The petition was openly circulated during working hours by a
different person on each of the two production floors of the respond-
•ent's factory and in some instances was passed from one employee
to another. Forty-six employees signed the petition. The circula-
tion on the sixth floor took place in the presence of Hallie Stubble-
field, the forelady in charge of that floor, who signed the petition.
On the fifth floor an announcement was made by one of the authors
,of the petition that a petition would be circulated and that the em-
ployees should sign it if they wished. There is a conflict in the evi-
dence as to whether or not Mrs. Parks, the forelady in charge of
that floor, was present when the petition was circulated. One em-
ployee stated that she was present part of the time while others
stated that she was not there. Mrs. Parks did not testify 1s and
her asserted absence from the floor during the composition and cir-
culation of the petition is not satisfactorily explained since these
events must have occupied a considerable time. Moreover, when
the signing was completed, Mrs. Parks delivered the petition on the
next day, August 13, to Arnold, an officer of the respondent. We
find that the petition was prepared and circulated on the fifth floor
with Mrs. Parks' knowledge and approval. We hold that the re-
spondent is responsible for the acts of its supervisory employees in
connection with the petition."' We find that by permitting employees
to leave their work to prepare the anti-union petition and to circulate
it in the plant during working hours, by Floorlady Stubblefield's
signing it, and by Floorlady Parks' delivery of it to an officer of the
concern, the respondent approved and ratified it; that by this conduct
the respondent again brought its pressure to bear upon its em-
ployees 20 to refrain from affiliating with or acting through an out-
side organization at a time when employees were seeking to bargain
collectively through the Union; and that the respondent thereby in-
*So in the original.
18 There was no showing that Mrs. Parks was unavailable.
10 See N. L. R . B. v. A. S. Abell Co., 97 F. (2d) 951 (C. C. A. 4), enf'g as mod . Matter
of The A. S. Abell Company, a corp . and Int . Printing and Pressmen 's Union , Baltimore
Branch, Baltimore Web Pressmen's Union No: 31, 5 N. L. R. B. 644; Swift & Co. v.
N. L. R. B., 106 F. (2d) 87 (C. C. A. 10 ), enf'g as mod . Matter of Swift & Company, a
corp. and Amal . Meat Cutters & Butcher Workmen of North Amer., Local No . 641, and
United Packing House Workers Local Industrial Union No . 300, 7 N . L. R. B. 269; Titan
Metal Manufacturing, at at. v. N. L. It . B., 106 F. (2d), 254 (C. C. A. 3). enf'g Matter
of Titan Metal Manufacturing Company and Federal Labor Union No. 19981, 5 N. L.
R. B. 577.
28 The respondent called to the witness stand every signer of the petition who was still
in its employ . All but Alma Nanny, one of the authors of the petition and Stubblefield,
the forelady , testified that they had signed It voluntarily without coercion by the re-
spondent's officers and agents. To view of our findings concerning the respondent 's prior
unfair labor practices and the circumstances surrounding the signing of the petition we
can afford little weight to this testimony.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terfered with, restrained, and coerced its employees in the exercise
of their rights guaranteed in Section 7 of the Act.21
On August 14, 1937, a strike began at the respondent's factory,
which continued until September 7, 1937 .21 Approximately 27 em-
ployees went out on strike but the factory continued to operate.
After the strike terminated, the respondent rehired most of the
strikers although several, including two members of the bargaining
committee, were not rehired.23
(2) Participation by the respondent in employer's associations
The complaint alleges in substance that the respondent by inducing
certain persons in the city of Dallas to interfere with, restrain, and
coerce its employees in the exercise of the rights guaranteed by the
Act, and by participating in the activities of the Dallas Millinery
Council, the Dallas Open Shop Association, and the Dallas Chamber
of Commerce, interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act. We
shall consider these allegations.
(a) The Dallas Millinery Council
The Dallas Millinery. Council, herein called the Council, was
organized in Dallas during 1933 or 1934. The exact number of em-
ployers who were members of the Council at any particular time is
not established but the evidence indicates that its membership includes
practically all of the millinery manufacturers of Dallas.24 The re-
spondent is a member of the Council and Fox is president of the
organization.
At the time of the hearing the Council was governed by bylaws
which had been in effect since the fall of 1936. Section IX of the
bylaws provides :
It shall be the duty of members, when any person leaves their
employ to imutnediately give the name of such employee to a
21 See Arthur L. Cotten and A. J. Colman, co-partners , doing business as Kiddie Kover
Manufacturing Company and Amal. Clothing Workers of Amer ., 6 N. L. R. B. 355, enf'd
105 F. ( 2d) 179 ( C.,C. A. 6 ) ; Matter of Goshen Rubber and Manufacturing Company and
United Rubber Workers of Amer. , Local #12ij, 11 N. L . It. B. 1346 ; Matter of Emsco and
Equipment Company ( D & B Division) and Steel Workers Organ . Comm., 11 N. L. R. B.
79; Matter of Harlan Fuel Confpany and Unlited Mine Workers of Amer ., District 19,
8 N. L. It. B. 25.
The details of the failure of collective bargaining efforts which led to the strike are
omitted for reasons stated in Section III D , infra.
25 There is no issue under the pleadings with respect to the nonreinstatement of any of
the strikers.
24 There are approximately 21 millinery manufacturers in Dallas. The number fluctuates
as various manufacturers go in and out of business. There were IS members of the
Counsel at the time of the adoption of bylaws in the fall of 1936, including all 6
respondents - in these consolidated cases. Gold - Claire Hat Manufacturing Company, one
of, the respondents whose case was settled prior to hearing , and four other millinery
manufacturers were listed at the time of the hearing as not now members." The
date of their withdrawal is not indicated.
FOX-COFFEY-LDGE MILLINERY COMPANY, INC. 649
central office which the Council shall establish for the assistance
of other employers who may be in need of their services and for
the assistance of employees in their search of work. The names
of new employees to the market shall be made available when the
member firms cannot employ them, so that the employee may be
assisted in finding employment. (Italics ours.)
While ostensibly the purpose of this provision of the bylaws is
to assist employees in obtaining other employment we are satisfied
upon this record that it was in fact utilized as a "blacklisting" device 25
to prevent union employees from obtaining other employment with
millinery manufacturers in the Dallas area. Fox testified that "he
could not say" whether the names of any of the employees discharged
in February 1937 were reported to the Council but his testimony indi-
cates that the practice of reporting the names of discharged employees
was carried on for a period of time after the passage of the Council's
bylaws in the fall of 1936.26 Fox's failure to deny an act of such
unequivocal nature coupled with the experience of some of the re-
spondent's discharged employees in attempting to secure other em-
ployment in the Dallas millinery industry convinces us that the re-
spondent did report to the Council the names and union affiliation
of the employees discharged by it from the time of the adoption of
the Council's bylaws at least until after the discharges effected about
February 1, 1937, and we so find.
Scott 27 testified that he sought employment "at the hat factories in
Dallas" and named two members of the Council where his efforts to
obtain employment were unsuccessful. At one of these places he
was told that the firm might be able to employ him and that he should
return the next day. The following day Scott informed his prospec-
tive employer that he had formerly been employed by the respondent.
He was subsequently told that there was no job available for him.
The testimony of two of the women discharged by Fox early in 1937
establishes that they were unable to obtain employment with any of
the members of the Council although the places where they sought
employment seemed to indicate that there were positions available until
questioning elicited from them that they had formerly been employed
by the respondent.28
22 See ".Governmental Protection of Labor 's Right to organize," National Labor Rela-
tions Board, Division of Economics Research (p . 13), where the current usage and effect
of the blacklist is described.
26 The adoption of the Council's bylaws in the fall of 1 936 was apparently coincident
with the respondent 's interference with its employees' efforts to organize, discussed supra,
III, B, ( 1), and the discharges of Cantrell and Scott at the end of October 1936 discussed,
infra, III, C, (1).
27 Scott and Cantrell were discharged on October 30, 1936, Section III, C , ( 1), infra.
^ Theda Sledge and Mossie Crofford testified that they tried. to obtain work "at every
wholesale millinery place in Dallas ." Each specifically named several members of the
Council at which she sought employment . Mrs. Billie Roberts indicated that she worked
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Several other considerations lead us to conclude that the respondent's
discharged. employees were victims of the blacklist. None of them
secured employment in the millinery industry during the busy season
prior to Easter of 1937, although it is uncontroverted that there is
always a- scarcity of experienced millinery workers in Dallas during
the busy seasons and that at such times there is usually keen compe-
tition among the various employers to secure trained help. Moreover,
Oscar L. Cantrell testified without contradiction, and we find, that
at the time lie was discharged in October 1936 lie was told by his fore-
man that Fox had said to the foreman that neither lie (Cantrell)
nor Scott would ever work "in the millinery" again.29
Fox claimed that the practice of sending names to the Council was
abandoned but stated that he did not know just when that occurred.
The record establishes that during July and August 1937 several
union members discharged by Fox were hired by members of the
Council and apparently the employers ceased their blacklisting activi-
ties at about this time .30
We find that the respondent by the use of the facilities of the Dallas
Millinery Council has taken part with other millinery manufacturers
in the city of Dallas in the blacklisting of union members and has
thereby interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act..
(b) The Dallas Open Shop Association
The respondent is a member of the Dallas Open Shop Association,
herein called the Association. There is insufficient evidence to support
a finding of interference by the Association with the rights of the
respondent's employees guaranteed by the Act and we will dismiss
the allegations of the complaint with respect thereto.
.(c) The Dallas Chamber of Commerce
There is no evidence to indicate that the respondent was a member
of the Dallas Chamber of Commerce or that it participated in any of
for 2 weeks for a firm which the record indicates was "dropped from the Council" and
that she "tried several places" before she obtained a position outside of the millinery
industry . The testimony of Naomi Courtner indicates that for a long period of time
following her discharge she was employed in the millinery industry for only 9 days and
that this was for an employer who was not a member of the Council. There is no
evidence , however , to indicate any attempts by Mrs. Courtner to obtain employment with
members of the Council.
zs Cantrell' s testimony does not indicate whether or not he attempted to obtain employ-
ment with other members of the Council after his discharge but his subsequent employ-
ment in the millinery industry was with a firm which was not a member of the Council.
' The respondent in its exceptions filed to the Intermediate Report states that the
conclusion of the Trial Examiner that a blacklist was maintained by the Council and
the Dallas Open Shop Association " is based only on . . . imagination ." In view of
our findings heretofore set forth the respondent 's contention with respect to the Council
is without merit. We make no finding with respect to the Dallas Open Shop Association.
See intro.
FOX-COFF EY-EDGE MILLINEStY COMPANY, INC. 651
the activities of that organization and we will dismiss the allegations
of the complaint with respect thereto.
(d) The assault on Baer
On August 9, 1937, Baer called on Bierner, one of the members of
the Council, in connection with the Union's efforts to secure a joint
meeting with all the millinery manufacturers in Dallas. Bierner
advised Baer that he would consult Fox, whose office was nearby.
Bierner met Fox on the ground floor of the respondent's building,
spoke to him, and then returned to his own office where he advised Baer
that the millinery manufacturers would not agree to meeting the Union
as a group. As Baer left Bierner's factory he was attacked by three
men and beaten severely. His attackers then forced him into an auto-
mobile and carried him to the outskirts of the city where he was thrown
out. While there is testimony that several persons at the scene of the
attack took the license number of the automobile in which Baer was
kidnapped and that two men were arrested in connection with the
assault, there is no proof in the record to establish either the ownership
of the automobile or the identity of the attackers. Baer's testimony,
as introduced by deposition, indicates that he did not know the iden-
tity of his attackers. While the circumstances surrounding this attack,
including the time and location of the occurrence, indicate that the
assault was connected with Baer's organizational activities among the
millinery employees, there is insufficient evidence that the respondent
or any of the employer's associations to which it belonged was re-
sponsible for this attack. We, therefore, make no finding with respect
to the attack on Baer.
C. The discharges
(1) The discharges of Oscar L. Cantrell 31 and Mingo Scott
On October 30, 1936, the respondent discharged two experienced
employees, Oscar L. Cantrell and Mingo Scott.32 Cantrell joined the
Union in September 1936 and Scott joined in August 1936.33 Both
had attended the Union's charter meeting at Fort Worth in Septem-
ber 1936, and were present when Fox made his anti-union speech to
the male employees at about the middle of October. We find that
the respondent knew of Cantrell's and Scott's union membership and
activities prior to and at the time of their discharge.34
3' This employee was designated in the complaint as 0. L. Cantrell.
82 At this time there were 18 men employees engaged in blocking and related operations.
Of this number not more than nine, including Cantrell and Scott, were members of the
Union.
33 Scott was one of the first members of the Union in the Dallas area and on various
occasions escorted several of the respondent's employees to meetings held at tthe home of
the union organizer.
31 See Fox's admission of such knowledge, Section III, 13, (1), supra.
a
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oscar L. Cantrell began to work for the respondent in June 1935,
having previously been employed in the millinery industry for about
7 years. Cantrell worked at both blocking and buffing. He was the
only one in the employ of the respondent who did both jobs. The
blocking operation consists of steaming the felt body of the hat and
stretching it over a hot metal block until it assumes the desired shape.
After an intermediate operation of sanding which leaves the hat
covered with dust, the buffer removes the dust and runs the hat over
compressed felt to "finish" it. Just prior to his discharge. Cantrell
was working as a blocker. Two months prior to his discharge Can-
trell's salary was raised from $18 to $25 per week.
On October 30, 1936, Fred Brown, the respondent's foreman, in-
formed Cantrell that there was no work for the next day, and upon
the latter's inquiry as to when there would be work told him that lie
should come back in a day or so. Cantrell returned the next day
and Brown told him that he did not have a job there anymore. There
is a conflict in the evidence concerning the remainder of their con-
versation on that occasion. Cantrell testified that he asked Brown
the reason for his discharge; that Brown stated that he did not know
the reason for it; that Cantrell's work was satisfactory but that he was
being dismissed on Fox's orders; that he [Cantrell] pressed Brown as
to, the reason for the discharge and that Brown said, "Fox told you
down at the meeting how to keep your job" and mentioned "tlie boys
who went to Fort Worth." 35 Brown denied ever telling Cantrell that
he could not join a. union or that he would be discharged if he joined
a union, but did not deny the specific statements attributed to him by
Cantrell. Brown testified that Cantrell spent 30 to 40 minutes ex-
plaining to him that he was as good as other workers and that there
was a friendly discussion between them "on what a man should do and
should not do." The absence of a specific denial by Brown, as well
as his equivocal explanation of the conversation which took place, con-
vince us that Cantrell's testimony concerning the conversation is
accurate and we find that it occurred as he recounted it. After his
conversation with Brown, Cantrell attempted to see Fox, but was told
by Fox's secretary that lie was busy.
As we have heretofore stated, Brown subsequently told Cantrell
that Fox had said that neither he [Cantrell] nor Scott would ever go
back to work "in the millinery."
Mfing.o Scott entered the respondent's employ about 1931 without
previous experience in the millinery industry. Scott worked as a hand
blocker. After his first few years in the employ of the respondent,
"Cantrell testified on redirect examination that Brown told him that Fox had ordered
him discharged for belonging to a union . In its context it appears that this statement
represented the witness ' interpretation of the meaning of the statements quoted, to which
lie had testified on direct examination , rather than a subsequent statement made to him
by Brown in those words.
FOX-COFFEY-EDGE- MILLINERY COMPANY, INC. 653
he worked regularly and was never laid off for longer than a few days
even during the slack season.
Scott's discharge took place on October 30, 1936, the same day that
Cantrell was discharged. When Scott received his pay check on that
day, he was told by an officer of the respondent that Fred Brown, his
foreman, wanted to see hint. Scott testified that Brown told him that
Fox had ordered him discharged; that Brown said to him, "I will tell
you the truth; I don't know the reason-your work is like the rest of
the boys"; and that Brown advised him that if he wished to find out
the reason for his discharge he should see Fox. Brown denied these
statements and claimed that he told Scott that his work was unsatis-
factory and that he had spoken to Fox about him. Since Brown did
not give Cantrell any reason for his discharge when the latter was
discharged other than the fact that work was slow, and,since Scott
promptly sought out Fox to learn the reason from him for his dis
charge, we believe Scott's version of the conversation and find that it
occurred as he stated.
After his conversation with Brown, Scott saw Fox who told him
that there was no "particular" reason for discharging hint. Scott asked
if he was being discharged because of his work, to which Fox replied
"partly"; Scott said, "you know it was not my work." Fox replied
"I told you boys how to hold your jobs," apparently referring to his
speech to the male blockers about 10 days prior to this date. Scott
then attempted to convince Fox that he was not a member of the
Union. While Fox denied that he said "I told you boys how to hold
your jobs," he did not deny the remainder of the conversation. Since
the statement is consistent with Fox's prior warnings to the employees
concerning membership in the Union, and since he admittedly knew
which ones belonged to the Union, we do not credit his denial and
we find that he made the statement.
Scott returned a few days later and again tried to convince Fox
that he did not belong to the Union. Fox told him that if work picked
up he would take him back, but advised him to get another job. In
July 1937, Brown called at Scott's home and stated that if lie would
talk to Fox lie could have his job back. Scott subsequently called on
Fox and was hired by him on or about July 15, 1937, to work at another
millinery factory in which Fox was a part owner.
The respondent contends that Cantrell and Scott were discharged
on October 30 because work was slack and because, for various rea-
sons, they were less satisfactory workers than other employees en-
gaged in similar operations. The record establishes that the dull
season was approaching when these discharges were effected, but it
does not substantiate the contention that these two employees were
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
selected for discharge either because of that fact 30 or because of
their relatively unsatisfactory work.
Brown claimed at the hearing that Cantrell was slow and could
not compete successfully with other workers, that Scott wilfully
limited his production and had become argumentative, that both
Cantrell and Scott had done bad work in the previous season, and
that both had been loafing on and off "at times" for 2 years. Can-
trell admitted that he had been warned about being slow once in July
1936, and once approximately a month before he was discharged.
However, he explained without contradiction that his occasional slow-
ness was caused in part by changing from a blocking to a buffing
operation 37 and in part by the fact that he was used to instruct other
blockers in the factory, which latter fact in itself is indicative of the
satisfactory character of his work. Moreover, 2 months prior to his
discharge he had received the raise heretofore mentioned.
With respect to Scott, Brown stated that he had spoken to him
several times about his work but admitted that he found it necessary
on occasion to speak to a number of other men blockers concerning
their work. His claims concerning Scott's unsatisfactory perform-
ance of his duties are further negatived by the fact that Scott was
subsequently hired for a similar job in a different establishment in
which Fox had an interest.
There was no showing other than Brown's unsupported testimony
that other employees were more satisfactory than Cantrell and Scott.
Brown's identical charges against both of them, namely, bad work in
the previous season and occasional loafing, are unconvincing. More-
over although Brown testified that he had spoken to Fox several times
concerning these employees' asserted shortcomings, the latter makes no
reference to any reports of that nature in his testimony. On the con-
trary, Fox offered an explanation for Cantrell's discharge which bears
no apparent relation to the reasons assigned for it by Brown 38 and
he advanced no explanation for Scott's discharge. Under the circum-
stances, we find that none of the reasons advanced for the discharge of
Cantrell and Scott constituted the actual cause but rather were justi-
fications for it in retrospect.
86 Two new blockers hired at about this time were retained despite the seasonal slowness
in business . One of them , Robert Genzel, hired on September 16, 1936, had had no previous
experience in the millinery industry . The previous experience of the other employee is
not indicated.
aT Cantrell stated that a different part of the hand is used in these operations and that
it required a month in,order to acquire a callous in the right place on his hands to allow
him to work efficiently.
Is Fox testified , "I think that you might just as well say that I have fired every member
of Cantrell 's family for the same reason , because the whole family worked for me at one
time or another and I have fired everyone of them . . . I just made a mistake when I
took one of those Cantrells on again . . . [there was] quite a serious charge against
one of them ." The record contains no explanation of what Fox meant by this statement
nor any indication of the reason for the discharge of other members of Cantrell ' s family.
FOX-COFFEY-EDGE MILLINERY COMPANY, INC. 655
Upon all the evidence, but especially in view of the respondent's
hostility to the Union, its deliberate efforts to stifle organizational
activity among its employees, its admitted knowledge of the Union's
membership, Fox's specific warning to the male employees about 2
weeks before the discharges, and the statements made to Cantrell and
'Scott when the discharges were effected, we conclude and find that
the respondent discharged Oscar L. Cantrell and Mingo Scott on Oc-
tober 30, 1936, because of their union membership and activity; 30
that the respondent thereby discriminated in regard to their hire and
tenure of employment, discouraging membership in a labor organiza-
tion and interfered with, restrained, and coerced its employees in the
exercise of rights gi aranteed by Section 7 of the Act.
Cantrell was paid $25 per week salary at the time of his discharge.
From the date of his discharge until the time of the hearing he earned
approximately $200. At the hearing Cantrell indicated his desire to
be reinstated to his former position in the employ of the respondent.
Scott was unable for a long period of time to secure other employ-
ment in the millinery industry for the reason that the respondent in
cooperation with other millinery manufacturers maintained a black-
list against union members.40 From the date of his discharge until
the time of the hearing he earned approximately $64. At the time of
the hearing Scott was employed at the same salary he received from
the respondent by a millinery firm which was partly owned by Fox;
Scott indicated his desire, howeyer, to be reinstated to his former
position in the employ of the respondent.
{2) The discharge of Mrs. Theda Sledge, Miss Mossie Crofford, Mrs.
Billie Roberts, and Mrs. Naomi Courtner
Between January 28, 1937, and February 1, 1937, five women; all
of whom were union members, were discharged by the respondent.41
No other employee was discharged at that time. We shall first dis-
cuss certain considerations applicable to all these discharges.
There were approximately 60 women working on the fifth and sixth
floors 42 when these discharges occurred. The major portion of the
union's membership among the trimmers was confined to the sixth
se During the hearing the respondent appeared to take the position that its failure
to discharge other union members establishes that these two discharges were not dis-
criminatory . The facts heretofore discussed do not support the inference urged. More-
over, the 'discriminatory discharge of two active unionists such as Cantrell and Scott
would serve to implement effectively the respondent 's prior warning against union activity
given to the male employees without entailing the disruption of operations involved in
wholesale discriminatory discharges.
'° See Section III, B , ( 2), supra.
41 During the hearing the allegations of discrimination against Miss Mildred Crofford
were dismissed without objection.
12 This is according to the respondent 's pay roll of February 5, 1937.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
floor. All the discharged women worked on the sixth floor of the re-
spondent's factory and all were trimmers except Miss Mossie Crofford.
A few days before these employees were discharged two of them,
Sledge and Roberts, spoke to Mrs. Diebel, an employee of the respond-
ent, about the Union and offered to take her to see the union organizer
about joining. Mrs. Diebel reported this conversation to Mrs. Hallie
Stubblefield, the floorlady on the sixth floor. After working hours on
the same day Mrs. Diebel observed a group of the respondent's female
employees, including Sledge,. Roberts, and Courtner, three of the em-
ployees who were subsequently discharged, gathering in the lobby of
the respondent's factory to go to a union meeting. The next morning,
she reported this to Mrs. Stubblefield. While Mrs. Stubblefield de-
nied knowing that the discharged employees belonged to the Union
she did not deny that Mrs. Diebel reported these occurrences to her..
In view of these reports, as well as Fox's admission that he knew who
was in the Union, we find that the respondent knew of the union'melu-
bership and activity of the employees under consideration. Further,.
these discharges must be evaluated with reference to the respondent's,
persistent and outspoken opposition to the Union as manifested by its.
statements and conduct both hereinbefore and hereinafter discussed.
The respondent contends that the slack season was the occasion for
these discharges and that they were made on the merits of the indi-
vidual employees involved. We cannot accept the first contention
since the evidence establishes that the discharges took place at the be-
ginning of one of the busy seasons in the respondent's business.43
Moreover, as we have heretofore noted, there is a scarcity of trained
labor in the millinery industry in Dallas, especially during the busy
seasons of the year, and there is usually competition among the manu-
facturers to secure the limited supply of experienced help.
In connection with the second contention, note should be made of
the respondent's failure to produce certain records which would have
an important bearing on the discharge of the trimmers who the re-
spondent claims were discharged because of unsatisfactory work or
slowness in production. The respondent keeps records indicating the
number of hats produced by each trimmer and their piece-work earn-
ings. No explanation was offered for its failure to produce these
records. The respondent's practice is to have the inspector return all
hats done improperly to the original trimmer to be redone. It is ap-
parent that under this procedure if a great deal of the work of a
trimmer was unsatisfactory and had to be done over this condition
13 The millinery business is highly seasonal . The spring busy season begins about the
end of January and ends at Easter. The fall busy season includes the months of Septem-
ber and October . The dull season occurs after Easter and after " the Christmas rush."
Moreover , the .respondent ' s employment records indicate that two trimmers were hired
by it on February 1 and several more were hired at about that time.
FOX-COFFE'Y-EDGE, MILLINERY COII,PANI, INC'. 657
would be reflected in substantially lower production and lower earn-
ings than those of her fellow workers whose work was satisfactory.
Mrs. Theda Sledge.-Mrs. Theda Sledge had been employed by the
respondent as a trimmer on the sixth floor for over 6 years and during
that time had only been laid off for short periods of a few days dur-
ing the slack seasons. Her duties as trimmer consisted of attaching
the various trimmings and ornaments to the hats in the arrangement
indicated by a sample hat.
Sometime during the summer of 1936, Fox told Mrs. Sledge that
she had better stay away from the taxicab strike which was taking
place in Dallas because it might mean her job and that lie would be
just like the taxicab owners and would not recognize the Union. De-
spite this warning, Mrs. Sledge joined the Union on October 11, and
was active in its affairs including the solicitation of members and the
using of her car to take employees of the respondent to union meetings.
Mrs. Sledge was one of those reported by Mrs. Diebel to Mrs.
Stubblefield as engaged in activities in behalf of the Union. On
January 28, 1937, a few days after this report, Mrs. Sledge was dis-
charged by the respondent. Airs. Stubblefield informed her that Fox
wanted to see her in his office. Fox told her that he could not use
her any more and that she was discharged. There is a conflict in
the evidence concerning the conversation which ensued. Mrs. Sledge
testified that she asked Fox if she was being discharged because of her
work or her production and was told that these were not the reasons;
that she stated to Fox that she wanted to know the reasons for her
discharge and that if he was discharging her because he thought she
had joined the Union she was not a member; that Fox replied, "We
have a way of finding out whether you belong to the Union or not.
I am going to tell you just like I told those boys, I will die and go to
hell before I work unions. No Easterner or Northerner is going to
come in here and tell me how to run it (my business) ." " She fur-
ther testified that he then told her that if he subsequently found out
that he was mistaken as to her union membership lie would apologize
and rehire her, otherwise she would not work for him again. Fox
claimed that he had told Mrs. Sledge that she was discharged; that
at the time he referred to some past trouble with her and told her
that he did not care to go into it; and that she "voluntarily" stated
to him that if he was discharging her for union membership she was
not a union member and that he told her that union membership had
nothing to do with the discharge. In view of Fox's speech in October
1936 in which lie stated that he would not let a union run his business,
and his own resentment, expressed on the witness stand, at what he
claimed to be the Union's interference with his business, as well as
4' words in parentheses supplied.
658 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
all the circumstances surrounding these discharges, it seems likely to
us that, in substance, he made the statements attributed to him by
Mrs. Sledge and we so find.
The respondent contends that Mrs. Sledge was selected for discharge
because she had an ungovernable temper, because she created disturb-
ances in the factory, because she was hard to get along with, and be-
cause her work was not "first class." In support of its claim the re-
spondent established that Mrs. Sledge took part in two arguments
with supervisory employees. One of these incidents occurred approxi-
mately 5 years before 45 and the other more than 2 years before her
discharge, and, hence, can scarcely be credited as its cause. Mrs.
Houseman, the inspector on the sixth floor, claimed that they encoun-
tered difficulties with Mrs. Sledge when work was returned for cor-
rection. She admitted, however, that she was always able to get Mrs.
Sledge to do the work over, and that occasionally she returned work
to all the women and that they all "fussed" about having to do it over.
With respect to the quality of her work there is evidence that on occa-
sion it was returned for correction but there is no showing that either
in amount or character these corrections differed from those necessary
in connection with the work of other employees. On the other hand
Mrs. Stubblefield admitted having discussed the work of all the trim-
mers with Fox, that she (Sledge) was "sometimes" second in produc-
tion, and that in judging Sledge's work that fact would be taken into
consideration. While Mrs. Sledge may have had one or more of the
faults attributed to her, the record makes it plain that such asserted
shortcomings were not the cause of her discharge.
The record indicates that Mrs. Sledge was a victim of the respond-
ent's blacklisting activities, and that because of this fact she was
unable to obtain work in the millinery industry until the last week
of July 1937. At the time of her discharge Mrs. Sledge was earning
between $15 and $16 per week on a piece-work basis. Between the
date of her discharge and the time of the hearing she earned approx-
imately $56. At the hearing she indicated her desire for reinstate-
ment to her former position in the employ of the respondent.
Mossie Crofford.-Mossie Crofford was employed by the respondent
for 8 years prior to her discharge. After working for a year as a
machine operator she was put in charge of the stockroom on the
sixth floor of the respondent's factory. Her duties consisted of cut-
ting trims, supplying the women with work, writing up orders, and
checking the stock.
Miss Crofford joined the Union about September 1, 1936, and was
the only woman from the respondent's factory who journeyed to Fort
4' Fox did not remember whether she was discharged by him or whether she quit at
that time; in either event she was subsequently rehired by him.
FOX-COFFEY-EDGE MILLINERY COMPANY, INC. 659
Worth for the charter meeting of the Union. She was active in the
solicitation of members among the women at the respondent's factory
and induced many of the employees to join the Union:
Mossie Crofford was discharged on January 29, 1937,48 by Fox,
who said to her, "I am just not satisfied with you and I don't like
the attitude that you have toward the girls in the workroom." She
said, "So you are just now finding out you are not satisfied with my
work after all these years." He replied "yes."
The respondent contends that Miss Crofford was discharged be-
cause she could not get along with her fellow employees and because
her work had slowed up. Fox claims that he had spoken to her
prior to her discharge about staying in the stockroom and minding
her own business and that he had told her that she should let the
machine operators alone. The only specific instance cited in sup-
port of the first reason advanced by the respondent for her dismissal
was a dispute between Miss Crofford and Mrs. Diebe1,47 who Fox
claimed was the principal complainant against Miss Crofford.
About 4 days prior to her discharge Miss Crofford had a "mis-
understanding" with Mrs. Diebel concerning a change made by Mrs.
Diebel in the setting of a machine which both of them used. Miss
Crofford was unable to use the machine due to this change and called
Fox to adjust the machine. When Fox came up to the stockroom,
Diebel reported to him that Miss Crofford "had got on her" about
changing the machine. Fox walked over to Miss Crofford and
asked, "What do you mean talking to the girls like you did." Miss
Crofford stated, "I haven't said anything out of the way . . . you
are mistaken." No further conversation took place. This was the
only trouble that Miss Crofford ever had in the factory and it was
regarded as trivial by all concerned. Mrs. Stubblefield's testimony
makes no reference to this incident and after the discharge she told
Mrs. Diebel, in response to an inquiry, that it was not the cause of
Miss Crofford's discharge.
Mrs. Stubblefield, the floorlady, claimed that Mossie Crofford was
discharged because her work had slowed up considerably.48 She tes-
tified that this condition had existed over a period of time and that
she discussed this matter with Fox the season before she was dis-
charged and recommended that he discharge her. Miss Crofford
denied that she had ever been told by anyone in authority that her
Se The date of this discharge is indicated in the complaint , the answer , and the testi-
mony as occurring at various dates between January 26 , 1937, and January 29, 1937.
Miss Crofford 's testimony establishes that she was discharged on Friday at the time she
received her pay. This would indicate that the discharge took place on January 29, 1937,
and we so find.
47 Mrs. Diebel was the operator who we have found reported the union activity of these
employees to Mrs . Stubblefield a few days prior to the discharges.
ss In this connection Fox testified , "Mossie had her mind on other things beside her job.
She did not take care of her job properly." Fox did not explain this statement.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work was slow or unsatisfactory until the day that she was dis-
charged. Upon all the evidence, we are satisfied and find that this
employee with 8 years' service was not discharged for the reasons
advanced by the respondent.
At the time of her discharge she was earning a salary of $15 per
week. The record indicates that. Mossie Crofford was a victim of
the blacklisting activities of the respondent and was unable to secure
other employment in the millinery industry. In March 1937, she
obtained a job at a necktie factory and was earning $10 per week
at the time of the hearing. Her total earnings from the time of her
discharge to the time of the hearing were approximately $240. At
the hearing she indicated her desire to be reinstated to her former
position in the employ of the respondent.
Mrs. Billie Roberts.-Mrs. Billie Roberts entered the respondent's
employ as a trimmer in 1931 or 1932 and was employed regularly
thereafter until her discharge on February 1, 1937. She joined the
Union in September 1936 and her membership was known through-
out the factory,. Mrs. Roberts was one of the employees reported to
the floorlady by Mrs. Diebel as soliciting union membership and as
being in the group of employees gathering to attend a union meeting.
When Mrs. Roberts left the respondent's plant for the week-end on
January 30 she was told to come in Monday. Upon her return
Monday morning the floorlady informed her that there was no work
and told her to go down to see Fox. Fox told her that she was too
slow and that he could not keep her any longer. She asked Fox
whether the discharge was on account of the Union. He told her
that it was not and said "Don't mention the Union," that he knew
more about it than she did, and added, "It seems like you have gone
haywire on the sixth floor." He also stated that the women had
their minds on something outside and not on (their) business." Fox
did not deny these statements.
The respondent contends that Mrs. Roberts was discharged because
her work was unsatisfactory. Mrs. Stubblefield claimed Mrs. Rob-
erts' work was not neat and would have to be done over, and that
Mrs. Roberts was a slow worker and did not produce enough.
Mrs. Roberts testified that she was never told by her supervisors
that her work was unsatisfactory. Mrs. Houseman, the inspector on
the sixth floor, testified that she complained to Mrs. Roberts about
her work, frequently taking it back to her to be redone because of
carelessness. However, Mrs. Houseman admitted that she had taken
work back to all of the women and that the respondent kept no records
of the number of hats brought back to be redone.
Mrs. Roberts' production was lower than some of the women in the
employ of the respondent and -she was rated between the fast ones and
the slow ones but was above the average. Her uncontradicted testi-
FOX-COFFEY-EDGE MILLINERY OOMPAIQY, INC. 661
mony establishes there were many who earned less than she who were
not discharged, and that her pay checks were as high just before she
was discharged as they were in other years that she worked for the
respondent. In view of this testimony and the respondent's failure
to produce its records which would have refuted her claims had they
been untrue, we accept Mrs. Roberts' testimony concerning her earn-
ings and efficiency.
We are not persuaded that Mrs. Roberts' asserted deficiencies as an
employee existed but even if they did they were no more acute at the
time of her discharge than theretofore. Upon all the evidence we
are satisfied and find that Mrs. Roberts was not discharged for the
reasons advanced by the respondent.
One week after her discharge by the respondent, Mrs. Roberts ob-
tained employment at the Queen's Millinery Company 4° but in 2 weeks
was laid off with several other girls, apparently because of lack of
work. Thereafter she tried several other places and finally obtained
employment outside the millinery industry from April to August 1937,
at which time she was hired by one of the members of the Council.
She was employed at the time of the hearing but her employment
was not regular and she, indicated her desire for reinstatement with
the respondent. During the month prior to her discharge Mrs. Rob-
erts'. earnings averaged approximately $11 per week. Between the
date of her discharge and the hearing she earned approximately $130.
Mrs. Naomi Courttner.-Mrs. Naomi Courtner was employed by the
respondent for about 8 years as a trimmer and copyist, having pre-
viously been in the millinery business for herself. She joined the
Union about the latter part of September 1936, made no secret of her
membership or activities in its behalf, and was one of those employees
reported by Mrs. Diebel in the group preparing to attend a union
meeting.
Mrs. Courtner was discharged on February 1, 1937, the same day
that Mrs.., Roberts;_}vas discharged, approximately a week after the
,report of her union activities by Mrs. Diebel to the floorlady. By this
time it had become apparent to the employees on the sixth floor that
the respondent was discharging active union members. Several of the
girls told Mrs. Courtner that she "had it coming next." As she pre-
pared to leave for the day, Mrs. Courtner asked Mrs. Stubblefield, the
floorlady on the sixth floor, at what time she could come to work in
the morning and was told, "You are not to come in any more." Mrs.
Courtner said, "I guess I had better get my things then," and Mrs. Stub-
blefield replied, "That is right." No further conversation took place.
The respondent rehired Mrs. Courtney on September 15, 1937.
"Queen's Millinery Company was a member of the Council but was dropped from
membership at a date not indicated in the record.
233031-41-yol.20 43
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing Mrs. Stubblefield claimed that Mrs. Courtner was
discharged because her work was not neat and would have to be done
over and because she did not produce enough hats. She claimed that
there was not enough work to keep all the women working and that
she selected Mrs. Courtner to be dismissed because her work was
unsatisfactory.
Mrs. Stublefield, who had been working as a supervisory employee
for the respondent for over 2 years, claimed that Mrs. Courtner's
faults had existed all that time. She stated that she was not certain
when she first reported this unsatisfactory work to Fox but believed
that it was soon after she came to work for the respondent. The
testimony of Fox makes no mention of any complaints of this nature
from Mrs. Stubblefield. Mrs. Stubblefield admitted that she did not
know how many of Mrs. Courtner's hats came back to be redone,
and that she never checked whose work came back. Mrs. Houseman,
the inspector on the sixth floor, who was called as a witness by the
respondent, made no claim that she ever took any hats back to Mrs.
Courtner to be redone and admitted that Mrs. Courtner "was an
average worker." Mrs. Courtner testified that she was never told that
her work was unsatisfactory. There is no credible proof to establish
that Mrs. Courtner did not produce enough hats. Mrs. Courtner
testified that she was the third fastest trimmer on the sixth floor;
that she trimmed from 70 to 100 hats per day and had done as many
as 110 on occasion. Mrs. Stubblefield admitted that the trimming
of 65 to 100 hats is a good clay's work. When questioned concerning
Mrs. Courtner's claim to be the third fastest worker Mrs. Stubble-
field evaded a direct reply but she did not dispute the claim and
admitted that the. office records would show the number of hats
produced. The respondent did not produce these records and, there-
fore, we accept Mrs. Courtner's testimony that she was not a slow
worker but was in fact one of the fastest in the factory.
Fox made no claim concerning any deficiencies in her work ' and
offered no explanation for her discharge. Since the respondent re-
hired this employee on September 15, 1937,50 it is apparent that she
was in fact a satisfactory worker and we must reject Mrs. Stubble-
field's claim regarding the unsatisfactory quality of her work.
We. are of the opinion that Mrs. Courtner was not discharged for
the reasons assigned by the respondent.
From the time of her discharge until the last week in July 1937,
Mrs. Courtner worked for 9 days for a millinery manufacturer not
a member of the Council. At the end of July she was hired by a
member of the Council and worked 3 weeks until she went out on
strike on August 14, 1937. She commenced working for the respond-
60 Fog told her on this occasion that he seemed to have all the slow workers in Dallas.
FOX-COF'FEY'-EDGE MILLINERY COMPANY, INC. 663
ent on September 15, 1937, and was employed by it at the time of
the hearing. At the time of her discharge at the beginning of the
busy season Mrs. Courtlier was earning $12 to $13 per week on a
piece-work basis. It is apparent, however, that during the height
of the busy season she had earned considerably more than this sum.
Between the date of her discharge and September 15, 1937, the date
on which she was reinstated by the respondent, she earned approxi-
mately $55.
To summarize, the four employees under consideration were active
adherents of the Union and their activity was known and resented
by the respondent.51 No other employees were discharged at that
time. They all worked on the sixth floor of the respondent's factory
which was the section of the building where the Union had made
the most progress in organizing the employees. The discharges oc-
curred at the beginning of the busy season despite the relative scarcity
of experienced millinery workers in Dallas at such season. All four
employees were experienced workers with service records of from
6 to 8 years. The reasons advanced by the respondent for their dis-
charges were patent excuses such as might be readily exhumed from
practically any employee's past work record in order to justify a
discriminatory discharge. Upon all the evidence we find that the
respondent discharged Mrs. Theda Sledge on January 28, 1937, Miss
Mossie Crofford on January 29, 1937, Mrs. Billie Roberts and Mrs.
Naomi Courtner on February 1, 1937, because of their union
membership and activities.
We find that by the discharge of the above-named employees and
the refusal to reinstate all of them except Mrs. Naomi Courtney, the
respondent has discriminated in regard to hire and tenure of employ-
ment thereby discouraging membership in the Union. We further
find that by such acts of discrimination the respondent has interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
D. The alleged re fusal to bargain
The complaint alleges that the respondent refused to bargain col-
lectively with the Union. The Trial Examiner found that the Union
did not represent a majority of the employees in an appropriate unit
on August 14 and 16, 1937, and that there was no refusal to bargain
within the meaning of Section 8 (5) of the Act. The Union filed no
exceptions to this finding. We have examined the evidence relating
to the majority representation issue and agree with the Trial Ex-
11 One of the respondent's employees who was not at work at the time of these discharges
subsequently returned to work and asked Fox "where the other girls were." He replied,
"I was sorry that I had to let those girls go because they were misinformed" and added
that they would never be employed by the respondent again. He did not mention
anything to her about their work being unsatisfactory. Fox did not deny these statements.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aminer's finding. Accordingly, the allegations of the complaint with
respect to the respondent's failure to bargain with the Union will be
dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent 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.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we will order it to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of the
Act. We will require it to cease blacklisting union members by using
the facilities of the Dallas Millinery Council or by any other means.
We will also require the respondent to offer immediate and full rein-
statement to Oscar L. Cantrell, Mingo Scott, Mrs. Theda Sledge, Miss
Mossie Crofford, and Mrs. Billie Roberts, without prejudice to their
seniority or other rights and privileges, and further to make then
whole for any loss of pay suffered by reason of their respective dis-
charges by payment to each of them of a sum of money equal to the
amount which he normally would have earned as wages from the date
of his discharge to the date of the offer of reinstatement, less his net
earnings 52 during said period. Mrs. Naomi Courtlier was voluntarily
reinstated by the respondent on September 15, 1937, and an order for
her reinstatement is therefore not necessary, we shall, however, order
the respondent to make her whole for any loss of pay she has suffered
by reason of her discharge by payment to her of a sum of money
equal to the amount which she normally would have earned as wages
from the date of her discharge to September 15, 1937, the date on
which she was reinstated by the respondent, less her net earnings 53
during said period.
sa 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
elsewhere than for the respondent , which would not have been incurred but for his un-
lawful discharge and the consequent necessity of his seeking employment elsewhere. See
]hatter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
,of America, Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R. B . 440. Monies
received for work performed upon Federal , State , county, municipal , or other work -relief
projects are not considered as earnings , but as provided below in the Order , shall be
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.
53 See footnote 52, supra.
I I Ilil; ha
FOX-COFFEY-EDDG-E MILLINERY COMPANY, INC. 665
VI. THE QUESTION CONCERNING REPRESENTATION
As we have heretofore stated, on August 12, 1937, the Union wrote
to the respondent requesting exclusive recognition and collective bar-
gaining. On August. 13, 1937, the respondent replied requesting proof
of the Union's claim to majority representation. 'On August 17, 1937,
the Union filed a petition with the Board alleging that a question had
arisen concerning the representation of employees of the respondent
in an appropriate unit. On September 27, 1937, the respondent filed
an answer to this petition in which it denied, inter alia, that the Union
represented a majority of the employees in the alleged appropriate
unit.
We find that a question has arisen concerning the representation of
employees of the respondent.
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead and has led to labor disputes burdening and obstructing
commerce and the free flow of commerce.
VIII. THE APPROPRIATE UNIT
The petition alleges that all production employees, including
blockers, cutters (by hand and machine), operators, trimmers, and
makers," constitute an appropriate bargaining unit.
The respondent concedes that the production employees are an
appropriate unit but claims that the term "Production employees"
includes "everybody who has a part in the preparation of a hat from
the time it starts until the time it goes out." In accordance with its
definition it seeks to include within the appropriate unit, in addition
to those set forth in the petition, the foremen and floorladies, the de-
signers, "the girls who press the trims before they are put on the hat,"
and the order fillers. The employees in the last two groups are desig-
nated on the respondent's pay rolls in the group of "miscellaneous
employees."
The foremen and floorladies are in a supervisory capacity over the
production workers and recommend the hiring and discharging of
employees. The Union contended that the supervisory help should
54 The term "maker" refers to employees on the fifth floor of the respondent 's factory
who perform all of the operations in production of the hat except blocking . They are
listed on the respondent's pay roll , along with those on the sixth floor who do only
trimming, under the classification , "trimmer."
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be excluded from the unit. In accordance with our usual practice,
they will be excluded from the appropriate unit.55
The designers are engaged in the creation of original ideas for the
styling of the hats. A sample or "original" of each creation is made
either by the designer, or by an operator whom she directs in the
production. The trimmers and makers then copy the samples. The
sample is never sold to customers. While the designers do not appear
to have any supervisory duties or any power in connection with the
hire and discharge of employees, they do give instructions to the
other employees and help them if there is any difficulty in the work.
At the time of the hearing the respondent had two full-time design-
ers. Both were paid a weekly salary which was considerably higher
than either the wages or the piece-work earnings of the employees
within the unit alleged by the Union to be appropriate. Their posi-
tions appear to be such that they were not subject to lay-offs during
fluctuations in work as are most of the production employees. An
examination of their testimony indicates that they have no real com-
munity of interest with the regular production employees. Under
the circumstances we find that the full-time designers are not normal
production workers and should be excluded from the appropriate
unit.
Two employees, Alma Nanny and Nola Daum, were listed as trim-
mers 56 on the respondent's pay rolls but testified that they also did
some designing. The record does. not indicate what proportion of
their time is spent in each occupation. Their testimony does not
reveal whether their earnings were calculated on a salary basis as
designers or on a piece-work basis as makers. Since at least part of
the work donee by these two employees is regular production work
similar to that performed by employees within the appropriate unit
and the respondent's pay roll lists them as trimmers we see no reason
for excluding them from the appropriate unit.
The parties disagreed over the inclusion of some of the employees
listed on the respondent's pay roll under, the general classification of
"miscellaneous, including floor girls, order fillers, etc., and sales."
The respondent's pay roll of August 14, 1937, lists 11 employees under
this heading but does not indicate the position held by each. The
Union indicated its desire to exclude, "clerical help in the factory,"
55 Ann Jones , an employee listed as a "cutter" on the respondent ' s pay rolls , was claimed
by several employees to have occasional supervisory duties in the absence of the floorlady.
The testimony of Miss Jones and the respondent 's officers indicates that she had no such
authority . Even if she did have these occasional supervisory duties it is apparent that
the major part of her duties consisted of ordinary production work and, therefore, she
will not be excluded from the unit.
' Since these employees worked on the fifth floor they are "makers ." See footnote
54, supra.
FOX-COFFEY-EDGE MILLINERY COMPANY, INC. 667
"order fillers," "errand people," 57 and "floor help" and "salesladies";
thus apparently intending to exclude all of the persons within this
"miscellaneous" class. The respondent contended that "the girls who
press ribbons" and "the order filler" should be included in the unit as
production workers.
We shall now consider the duties of each of these employees classi-
fied as "miscellaneous" in order to determine what part, if any, each
takes in the production process. The first 58 of the employees classi-
fied as "miscellaneous" testified that at the time the petition was filed
she was employed at blocking hats on the hot block after they were
trimmed and then pressing them. Apparently this is a necessary part
of the production of the hat without which the hat is not complete.
We find, therefore, that this position, the exact name of which is not
indicated in the record, should be included within the unit.
The second employee 50 classified as "miscellaneous" testified that
her duties consisted of distributing the "originals" to the women,
helping cut the trims and pressing the ribbons. While most of her
work was of the non-production type, her duties in cutting trims, an
operation that was necessary before they could be placed upon the
hat, is in fact part of the production process. Some of the respond-
ent's employment lists classify this individual under the title of "as-
sistant cutter" and we shall so designate her. Under the circum-
stances we believe that "assistant cutters" are production employees
and should be included within the appropriate unit and we so find.
The third 60 and fourth 61 persons classified as "miscellaneous" were
"errand girls" 62 in the factory. The record indicates that they were
engaged entirely in the distribution of work to the production em-
ployees. They take no part in' any of the processes in the manufac-
ture of the hat or any part thereof. They are not strictly production
employees and will, therefore, be excluded from the unit.
The fifth 63 and eighth 84 employees classified as "miscellaneous" were
referred to as the "order fillers." After the hat is completed and has
67 The respondent contends that it has no persons , in its employ designated as "errand
girls," yet one of its employment lists indicates that some of its employees were so
designated and for convenience in reference we shall adopt this designation.
Doris Sikes.
ss Beulah Martin.
w Mary Milton ( also designated as Mary Melton ) did not appear at the hearing. She
is designated on two of the respondent 's employment lists as "Errand."
11 Lucille Owens.
0 See footnote 57, supra.
11 Christine Broxon.
a This employee , Hilda Milligan , left the employ of the respondent on September 29,
1937 , and did not appear at the hearing . The respondent's employment lists designate
her as a "packer " prior to August 14, 1937, and as an "order filler" on and after that
date . While one of the respondent ' s employees thought that Miss Milligan did "general
work in the stock room" and cut some trims, her testimony indicates that she was uncer-
ta'in as to the exact nature of the work. Under the circumstances we will classify her
position as "order filler."
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
passed all inspections it is sent to the "order filler" who has the list
of hats that have been ordered by customers. She selects the hats to
fill the order and sends them to the basement to be packed for ship-
ping. It is apparent that the "order fillers" have no part in the pro=
duction process, which has been completed prior to the delivery of hats
to them, and we will, therefore, exclude them from the appropriate
unit.
The sixth employee 65 classified as "miscellaneous" whom we shall
refer to as the "ticketer" was engaged in making up work tickets in
the factory. There is no evidence indicating that her duties were in
any way connected with the production of hats and we will, therefore,
exclude this position from the unit.
The remaining employees classified as "miscellaneous" are salesgirls.
Both the Union and the respondent indicated their desire to exclude
this group of employees from the unit. Both parties also agreed that
the shipping department and the office employees should be excluded
from the unit. We shall exclude the salesgirls, shipping-department
employees, and office employees from the appropriate unit.
Apparently through inadvertence the name of the "inspector" vas
omitted from the classification of "miscellaneous" employees on the
pay roll of August 14, 1937. The record indicates that she was em-
ployed on that date and her name is included in this classification on
other pay rolls. The inspector inspects the hats after they have been
trimmed. If there are any errors she takes the hat back to the trim-
mer to be corrected. The inspector is not a production worker.66 We
shall exclude the position of inspector from the unit.
We find that all production employees, including blockers, cutters
(by hand and machine), operators, trimmers, makers, part-time de-
signers who are also engaged in production work, the women who work
on hot blocks, and the assistant cutters, excluding foremen and floor-
ladies, full-time designers, errand girls, order fillers, ticketers, sales-
girls, the shipping department, the office employees, and inspectors,
constitute a unit appropriate for the purposes of collective bargaining,
and that said unit will insure to employees of the respondent the full
benefit of their rights to self-organization and to collective bargaining
and otherwise effectuate the policies of the Act.
IX. THE DETERMINATION OF REPRESENTATIVES
In view of the facts set forth in Section III, subdivision D, above,
we find that the question which has arisen concerning representation
85 This employee, Mae Granberry, did not appear at the bearing.
e°See Matter of International Nickel Company , Inc. and Square Deal Lodge No. 40,
Amalgamated Association of Iron, Steel and Tin Workers of North America , through Steel
Workers Organizing Committee, 7 N. L. R. B. 46; and Matter of Keystone Manufacturing
Company and United Toy and Novelty Workers Local Industrial Union No. 538 of the
C. I. 0., 7 N. L. R. B. 172.
.FOX-COFFEY-E'DG'E MILLINERY COMPANY, INC. 669
of employees of the respondent can best be resolved by a secret ballot.
We shall accordingly direct that an election by secret ballot be held.67
Since the respondent has, by engaging in various unfair labor prac-
tices, interfered with the exercise by its employees of the rights guar-
anteed them by the Act, we shall not now set the date for the election.
We shall hold the election, however, upon receipt of information from
the Regional Director that the circumstances permit a free choice of
representatives unaffected by the respondent's unlawful acts.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. United Hatters, Cap and Millinery Workers' International Union,
Local 57, is a 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 Oscar L. Cantrell, Mingo Scott, Mrs. Theda Sledge, Miss
Mossie Crofford, Mrs. Billie Roberts, and Mrs. Naomi Courtner, there-
by discouraging membership in the Union, the respondent has en-
gaged in and is engaging in unfair labor practices within the meaning
of Section 8 (3) of the Act.
3. The respondent by interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the
Act, has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (5) of the Act.
6. A question affecting commerce has arisen concerning the repre-
sentation of the respondent's employees within the meaning-of Section
9 (c) and Section 2 (6) and (7) of the Act.
7. All production employees of the respondent including blockers,
cutters (by hand and machine), operators, trimmers, makers, part-
time designers who are also engaged in production work, the women
who work on the hot blocks, and the assistant cutters, excluding fore-
men and floorladies, full-time designers, errand girls, order fillers,
ticketers, salesgirls, the shipping department, the office employees, and
inspectors, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act.
G7 Matter of Armour 1 Company and United Packinghouse Workers, Local Industrial
Union No . 13 of Packinghouse Workers Organizing Committee, affiliated with C. I. 0.,
13 N. L. R. B. 567 ; Matter of The Cudahy Packing Company and United Packinghouse
Workers of America, Local No. 21, of the Packinghouse Workers Organizing Committee,
affiliated with the Congress of Industrial Organizations, 13 N. L. R. B. 526.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the, respondent,
Fox-Coffey-Edge Millinery Company, Inc., Dallas, Texas, and its
officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in United Hatters, Cap and Milli-
nery Workers' International Union, Local 57, or any other labor organ-
ization of its employees, by discriminating in regard to hire or tenure
of employment or any tern or condition of employment because of
membership in or activity in behalf of United Hatters, Cap and Mil-
linery Workers' International Union, Local 57, or any other labor
organization ;
(b) Blacklisting union members by using the facilities of the Dallas
Millinery Council or by any other means;
(c) In any other manner interfering with, restraining, or coercing
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 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 Oscar L. Cantrell, Mingo Scott, Mrs. Theda Sledge,
Miss Mossie Crofford, and Mrs. Billie Roberts immediate and full
reinstatement to their former positions without prejudice to their
seniority or other rights and privileges;
(b) Make whole Oscar L. Cantrell, Mingo Scott, Mrs. Theda Sledge,
Miss Mossie Crofford, and Mrs. Billie Roberts for any loss of pay
they have suffered by reason of their respective discharges, by payment
to each of them, respectively, of a sum of money equal to that which
he would normally have earned as wages from the date of his discharge
to the date of the offer of reinstatement, less his net earnings during
such period; deducting, however, from the amount otherwise due to
each of the said employees, monies received by said employee during
said period for work performed upon Federal, State, county, munici-
pal, or other work-relief projects, and pay over the amount so deducted
to the appropriate fiscal agency of the Federal, State, county,. munici-
pal, or other government or governments which supplied the funds for
such work-relief projects;
(c) Make whole Mrs. Naomi Courtner for any loss of pay she may
have suffered by reason of her discharge by payment to her of a sum
of money equal to that which she would normally have earned,as,wages
FOX-COFFEY-EDGE MILLINERY COMPANY, I-c. 671
from the date of her discharge to September 15, 1937, the date on
which she was reinstated by the respondent, less her net earnings
during said period; deducting, however, from the amount otherwise
due to the said employee, monies received by her during said period
for work performed upon Federal, State, county, municipal, or other-
work-relief projects, and pay 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 said
work-relief projects;
(d) Post immediately in conspicuous places throughout its factory,
and maintain for a period of at least sixty (60) consecutive days from
the date of said posting, notices to its employees stating that the
respondent will cease and desist in the manner set forth in 1 (a), (b),
and (c), that it will take the affirmative action set forth in 2 (a), (b),
and (c) of this Order, that its employees are free to become or remain
members of United Hatters, Cap and Millinery Workers' International
Union, Local 57, and that it 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 herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed in so far as it alleges that the respondent has engaged in and is
engaging in unfair labor practices, within the meaning of Section
8 (1) of the Act, by participating in the activities of the Dallas Open
Shop Association and the Dallas Chamber of Commerce.
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 (5) of the Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Fox-Coffey-Edge Millinery Company, Inc., Dallas, Texas, an
election by secret ballot shall be conducted at such time as the Board
shall hereafter direct, under the direction and supervision of the
Regional Director for the Sixteenth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Section 9, of said Rules and Regulations, among all production
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of the respondent, including blockers, cutters (by hand and
machine), operators, trinuners, makers, part-time designers who are
also engaged in production work, the women who work on the hot
blocks, and the assistant cutters, employed by said respondent during
a pay-roll period which the Board shall in the future specify, includ-
ing employees who did not work during such pay-roll period. because
they were ill or on vacation and excluding foremen and floorladies,
full-time designers, errand girls, order fillers, ticketers, salesgirls, the
shipping department, the office employees, and inspectors, and exclud-
ing also those employees who have after the eligibility date quit or
been discharged for cause, to determine whether or not they desire
to be represented by United Hatters, Cap and Millinery Workers'
International Union, Local 57, for the purposes of collective
bargaining.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision, Order, and Direction of Election.