Blanton Co.

National Labor Relations Board - Board Decisions

Oct 31, 1939

16 N.L.R.B. 951 (N.L.R.B. 1939)

In the Matter of BLANTON COMPANY and UNITED OLEOMARGARINE
WORKERS LOCAL INDUSTRIAL UNION No. 4891
Case No. C-801.-Decided October 31, 1939
Oleomargarine Manufacturing Industry-Interference , Restraint , and Coer-
cion : discrediting union and union leaders ; threat to move plant ; engendering
fear of loss of employment for union activity ; conducting of poll necessitating
choice of union or company ; offering of bonus and vacation with pay to induce
employees to renounce union-Discrimination : refusal to reinstate , following
strike ; discharges ; charges of , dismissed as to several employees-Reinstate-
ment: ordered , of all but three . of the strikers named in the complaint-Back
Pay: awarded , to employees refused reinstatement , from date of refusal to
reinstate to date of offer of reinstatement ; monies received by employees for
work performed upon Federal , State, county , municipal or other work-relief
projects to be deducted and paid over to.agency which supplied funds for-said
projects-Unit Appropriate for Collective Bargaining : production and-
main-tenance employees , excluding supervisory and office and clerical employees ; no.
controversy as to-Representatives : proof of choice : testimony of secretary of
union; failure of respondent to question majority during negotiations-Collec-
tive Bargaining : refusal to negotiate with union representatives insisting on
dealing with employees only ; refusal at outset of negotiations to embody any agree-
ment in a signed contract ; affirmative order to bargain with the union and to em-
body-understandings in written agreement-Strike: caused by respondent 's refusal
to bargain-Strike Settlement : no effect on rights of strikers to reinstatement.
Mr. Alan F. Perl, for the Board.
Case, Voyles C' Stemmles, by Mr. Clarence T. Case, and Mr. George
L.. Stemmles, of St. Louis, Mo., for the respondent.
Mr. Louis Cokin, of counsel to the Board. .
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed 2 on behalf of Oleo-
margarine Workers Local Industrial Union No. 489, herein called
the Union, the National Labor Relations Board, herein 'called the
. 'In the charges and complaint , the name appears incorrectly as "United Creamery
Workers of America affiliated with the Committee for Industrial Organization." This
was corrected' by motion at the bearing.
2 The respondent contends that the charges cannot support the Board's complaint since
there was no "testimony given in the record to show his [James Nash, Field Representa-
tive of the C. I. O.] authority as an agent for said alleged union to make the said charges
upon which the complaint is based." (Respondent's Exceptions 2, 3.) Such authority is
not necessary.. Under Article II, Sec. 1, of National Labor Relations Board Rules and
Regulations-Series 1, as.amended, a charge "may be made by any person or labor organi-
zation." These rules and regulations were complied with here. Furthermore, the respond-
ent's brief states that "his (Nash's) title is merely descriptio personis."
16 N. L. R. B., No. 79.
951
247383-40-vol. 16--61
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board, by the Regional Director for the Fourteenth Region (St.
Louis, Missouri), issued its complaint and amended complaint dated
June 6 ,and..13, 1938,, respectively, against The Blanton Company,3
St. Louis,-Missouri, herein called the.;respondent, alleging that the
respondent had engaged in and was engaging in unfair" Tabor prac-
tices 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.. Copies of the complaint,
as amended, were duly served upon the respondent and upon.the_
Union.
Concerning the unfair labor practices, the complaint alleged, in
substance, that on or about June, 11, 1937, and at all times thereafter,
the respondent. refused to bargain collectively with the Union as, the
exclusive representative of the -respondent's employees in an appro-
priate bargaining unit; that the respondent discriminated in regard
to the hire and tenure of employment of 20 persons named in the
complaint, thereby discouraging membership in the Union; and that
by these and other acts. and conduct, the respondent interfered with,
restrained, and coerced its employees in the exercise of the. rights
guaranteed in Section 7 of the Act.. On June 13 -and 16, 1938, re-
spectively, the respondent filed an answer and an amended, answer
admitting the allegations concerning its corporate exis't'ence and the'
nature of its business, including the allegation that its raw materials
and finished products move in interstate commerce. It denied all the
allegations of the complaint with respect to the unfair labor practices.
Pursuant to a notice and amended notice duly served upon the
respondent and upon the Union, a hearing was held on June 16, 17,
18, 20, and 21, 1938, at St. Louis, Missouri, before Hugh C. McCarthy,
the Trial Examiner duly designated by the Board. The Board and
the respondent were represented by counsel and participated in the
hearing. Although served with notice, the Union did not appear at
the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues
was afforded ' all parties. 'During the course of the hearing, counsel
for the Board moved that the charges alleging the violation of
Section 8 (3)' of the Act as to Philip Sulzak, Ed. Loehr, Betty Nor-
man, Nettie Barger, and 'Rose Niemeier be dismissed; without preju-
dice. 'The motion was granted.' At the close of the Board's case,
counsel for the Board moved to conform the pleadings to the proof.
The motion was granted. At the close of the ,hearing; counsel for
the respondent moved that "the charges and the claims presented in
'the complaint and in the amended complaint be' dismissed for the
reason'that they have not been proven by the evidence in the case."
3 Incorrectly designated in the formal papers as "Blanton Company."
BLANTON COMPANY 953
The motion was denied. . During the course of the hearing the Trial
Examiner made several rulings on other motions and on objections
to the admission of evidence . The Board has reviewed all the rul-
ings of the Trial Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
On July 17, 1938, the Trial Examiner issued his Intermediate
Report, copies. of which were duly served upon all parties, finding
that the respondent had engaged in the unfair labor practices alleged
in the amended complaint, except in so far, as the complaint alleged
that the discharges of- Roscoe Jones, Kilbourne -Hicks, Helen Schlue-
ter; Leona Clirisco ; 'Lena Niemeiei; -and Margaret Grosse were eun-
fair labor practices. On August 10, 1938, the respondent filed excep-
tions to the Intermediate Report and requested oral argument before
the Board. On June 8, 1939, the respondent filed a brief.
Pursuant to notice duly served upon the respondent and upon the
Union, a hearing for the purpose of oral argument was held before
the Board on June 8, 1939, in Washington, D. C. The respondent
appeared by counsel and participated in the argument. The Union
did not appear. The Board has considered the exceptions of the
respondent to the Intermediate Report and, except to the extent
indicated below, finds no merit in them.
Upon ;the entirel.record in thet case, the. Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a Missouri corporation, owns and operates a plant
,at St. Louis, Missouri, where it is engaged in the business of manu-
.facturing and processing oleomargarine , food shortening , mayon'-
'naise, and other vegetable oil products. The principal raw materials
used by the respondent are animal fats and vegetable oils. The
respondent spends approximately $2,500,000 annually for raw ma-
teriarls, of which' 75 'per cent of the aiiim U' fats and. 90 per cent "of
the vegetable oils are shipped to it from points outside the State of
Missouri. The respondent does an annual business amounting to
approximately $2,950,000, of which approximately 42 per cent is
derived from out-of-State sales. . The respondent employs approx-
imately 106 production employees.
II. THE ORGANIZATION INVOLVED
United Oleomargarine Workers Industrial,Union No. 489 is a Tabor
organization affiliated with the Congress of Industrial Organizations.
It admits to membership all production and maintenance workers in
the -respondent's plant, excluding supervisors and office and clerical;
employees.
954 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
III. THE ,-''UNFAIR . LABOR PRACTICltS
A. The refusal to bargain collectively; interference, restraint, and
coercion
1. The appropriate unit
The complaint alleges that all the production and maintenance
employees; excluding supervisors and office and clerical employees,
constitute a unit appropriate for the purposes of collective bargain-
iiig. The respondent at the hearing made no contention as to the
appropriate unit and offered no evidence that the unit described in
the complaint is not appropriate. The record..does not disclose any
reason for departing from this unit.
We find that all the production and maintenance employees of the
respondent, excluding supervisors and office and clerical employees,
constitute a unit appropriate for the purposes of collective bargaining
and that said unit insures to employees of the respondent the full
benefit of their right to self-organization and to collective bargaining
and otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
The recording secretary of the Union, Mildred Kelly, testified under
subpena that the Union had 103 signed membership cards of a total
of 106 employees in the appropriate unit in June 1937. Kelly also
stated that she destroyed all of her records and cards in April 1938,
giving no explanation for her action 4 The respondent made no effort
to impeach or contradict her testimony. On the other hand, the fact
that 65 employees within the unit went on strike on June 15, 1937,
and followed the leadership of the Union tended to corroborate her
testimony that the Union represented a majprity..pf the, employees.5
We find that in June 1937,. and at all times thereafter, the Union
was the duly designated representative of a majority of the employees
in the appropriate unit and that by virtue of Section 9 (a) of the Act,
was the exclusive representative of all employees in the unit for the
purposes of collective bargaining.
4 Although the respondent in its answer denies that the Union represented a majority of
the employees within the appropriate unit, at .the hearing,,it stated,that at no time•in the
discussions with the Union was the question of majority in issue: See National Labor
Relations Board v. Remington Rand, Inc., 94 F. ( 2d) 862 (C. C. A. 2d, 1938), cert. den.
304 U. S. 576.
5 Matter of Century Mills, Inc. and South Jersey Joint Board of the International Ladies
Garment Workers Union, 5 N. L. R. B. 807.
- BLANTON COMPANY, 955
3. The refusal to bargain; interference, restraint, and coercion
(a) Chronology of events
In May 1937 Tonie Sentner, organizer for the Union, commenced
organizational activities in the respondent's plant.
On June 1, 1937, David A. Blanton, president of the respondent,e
ordered his foremen to notify all the employees in the plant of a meet-
ing to be held at the close of the day's work. At this meeting Blan-
ton announced that he had heard that a union was organizing in the
plant and that he called the meeting so that the respondent and the
employees could come to a better understanding of their labor rela-
tions. Although Blanton stated that he "had no objection to any of
his employees joining a. union and paying their union dues as long
as they see fit," he went on to tell his employees that "when you join
a union and you want to work on a union basis then you lose your
position working under our profit-sharing agreement." 7 Blanton
emphasized that under his profit-sharing plan and handling of labor,
whereas many union men were walking the streets without work he
had retained and made work for many employees whom he could
have laid off without any impairment of the respondent's efficiency
of operation. Blanton also stated that "before there was any indica-
tion of dissatisfaction, our auditor had already been instructed to
prepare a vacation list and a further bonus plan for the next six
months in addition to the vacation plan with.salary" and that "you
appreciate that union shops do not give vacations with pay, nor do
they share profits and give bonuses ... if anyone is now considering
a union affiliation that they make it known immediately to our auditor
so that he may properly classify everybody for our future plans."
On June 2, 1937, the Union sent a letter to the respondent stating
that it represented a majority of the employees and asking for a
conference for the purpose of collective bargaining. The request
was granted and on June 4, 1937, Sentner, together with a committee
of five employees, met with Blanton. Sentner offered to prove by
means of membership cards in her possession that the Union repre-
sented 80 per cent of the respondent's employees. Blanton requested
that the cards be left with him overnight to check with the respond-
ent's list of employees. Sentner refused to allow the cards to be
checked without .the presence of a union member, and the issue of
union representation was dropped.
6 To use the language of the respondent 's brief, "Mr. Blanton was President and prin-
cipal stockholder . He alone determined the labor policies of the company."
7 The profit-sharing plan was started by Blanton in the first part of 1935 . The em-
ployees' shares were computed and adjusted quarterly in keeping with the respondent's
. profits . These shares were given to the employees over and above their basic wage.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 5, 1937, the Union presented a proposed closed-shop con-
tract to Blanton. Blanton refused to consider this contract stating
that it did not "cover his requirements."
On June 6, 1937, Dorn, auditor of the respondent, acting. pursuant
to Blanton's order, took a poll of all the . employees asking them
whether they preferred the union plan or the profit-sharing plan.
The results of this poll were in favor of the profit-sharing plan.
When Blanton apprised the union committee of this fact, Sentner
stated that it was an unfair poll. Blanton replied that he did not
realize it at the time but that perhaps it was unfair.
Between June 7 and 14, 1937, there were daily meetings of the
union committee with Blanton. During these meetings Blanton
stated, "I will bargain and I. will bargain until the cows come home
but I won't sign a contract with the C. I. 0." He also expressed the
opinion that Sentner was a Communist and a radical, and announced
that he took the "Tom Girdler" 8 stand in these matters.
On June 11, 1937, Blanton sent questionnaires, letters, and final
bonus checks to his employees. The questionnaires contained the
following questions among others :
Assuming that the property is soon to be sold, are you going
to look for another job, or do you desire that the company
re-locate in or around St. Louis, and are you satisfied to continue
your employ with the Company? Answer Yes or No.
Yes------------ No------------
If the Company continues in business in St. Louis or vicinity,
would you prefer to have a Union represent you in your labor
relations with the Company, or do you have sufficient confidence
in the fairness of the management to discuss at any time any
grievance you may have? Cross out one of the following,,leav-
ing the expression of your desires.
I am for the Union representing me.
I would prefer to represent myself in my labor relations.
Cross out one of the plans below, leaving your best secret
decision at this time.
I hereby withdraw from the Company's profit-sharing plan
and under the conditions understand that there will be no bonus
after withdrawal.
I hereby express my desire to remain in the Company's profit-
sharing plan, and my acceptance of the usual six months bonus
and readjustment of drawing account will confirm my desire to
remain in the plan to the exclusion of any other plan.
8 See Matter of Republic Steel Corporation and Steel Workers Organizing Committee,
9N.L.R . B.219.
BLANTON COMPANY 957
The following are pertinent excerpts from the' letters accompany-
ing the questionnaires :
we are herewith enclosing our final bonus check, which
will possibly be the last bonus check that we will'give to those
employees. who have not been satisfied with our Profit-Sharing
Plan.
You may not appreciate. it, but your personal, secret opinion
is going to be important for the future of the Company. As
you have possibly read in the papers, this plant will soon be
taken by the United States Government for a memorial park
site. Condemnation suits have been filed against the owners of
the block south of 'this plant during this week by the Govern-
ment, and we are told that the papers are being made up in
Washington to be sent out here to condemn 37 city blocks; and
inasmuch as our plant and property is located within this area,
it is only a matter of a short time until the Government is going
to take possession of our property; and the problem now con-
fronting this Company is whether we are going to continue in
business in St. Louis or whether we will move out of St. Louis,
or whether we will move a part of our property to Helena,
Arkansas, and continue in business there where we are now
operating a plant and know that the labor conditions are
satisfactory.-
If in your answers you indicate to me that our labor relations
.with you are unsatisfactory, then this business in all probability
will be discontinued in St. Louis and we expect to make our
plans accordingly.
The Company will not stay in St. Louis to give employment
to people who oppose its policies and what is being done for
them, and if the Company stays what it does in the future will
be no different than what has been done in the past; and, when
I ask you for your secret and unidentified opinion as to your
future relations with the Company based on the past, I hope
you will consider my questions carefully and give me your best
secret advice, which when compiled will have considerable to
do as to what this Company will do in the future.
I want to make it plain that owing to the opportunity we
now have to discontinue business that it is only, reasonable that
you give me your best advice.
Blanton testified that the bonus check was enclosed in this letter
as a "persuader," and that if a majority of the employees answered
in favor of the "Union plan" he would consider that as an
unfavorable answer.
958 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
On June 15, 1937, following a union meeting and a strike vote, the
union employees went on strike for union recognition and threw a
picket line around the plant. The strike continued until July 13,
1937, during which the plant was partially shut down.
Between June 15 and July 12, 1937, Blanton met daily with vari-
ous union organizers and employees. He became adamant during
these meetings and refused to meet with any union organizers, union
attorneys, and certain employees." Blanton refused to discuss any-
thing with the committee while Elza Smith or Lena Niemeier,
employees, were members thereof.
On July 2, 1937, the attorney for the Union, in a letter to Blanton,
offered to compromise by calling off the strike and holding a consent
election. The latter further apprised Blanton that the Union would
construe the respondent's refusal to settle the strike as a lock-out.
Blanton replied that he was. formulating a statement of his labor-
policy which he would announce to the employees at a meeting to
be called by him.
On July 2,1937, Blanton sent the following letter to the employees :
To All Employees of The Blanton Company up to the Begin-
ning of the Week of June 14th, and Others Employed in Good
Faith Since June 14th:
The President of the Company is calling a meeting for all
of the above-described employees for Tuesday morning, July 6th,
at 9:30 a. m., the meeting to be held on the third floor of the
refinery building.
At that meeting the President of the Company will read and
make known the labor policy of the Company. A copy of the
policy will be handed to each and everyone attending and posted
on -the bulletin board so that everyone connected or interested
may know exactly where the Company stands in regard to labor.
That policy will contemplate the right of employees having a
union to represent them in their labor relations with the
Company, and that union
". shall be the exclusive representative of all the em-
ployees in such unit for the purpose of collective bargaining in
respect to rates of pay, wages, hours of employment, or other
conditions of employment; Provided, That any individual em-
ployee or a group of employees shall have the right at any time
to present grievances to their employer."
9 Blanton characterized the union organizers as radicals, Communists, and people seeking
only to profiteer at the expense of the employees. In its brief the respondent states:
"Blanton suggested that perhaps something definite could be accomplished if just the com-
mittee of employees, without their expert advisers, sat around the table. Blanton sug-
gested to all of these negotiators that perhaps they might be able to reach an agreement
without the aid of these outsiders." .
BLANTON COMPANY 959
This policy was made known to all employees who attended
the meeting on June 1, 1937, and will be re-confirmed and further
explained in the written memo we propose to publish to all
employees as stated above.
At this meeting' the matter of strike settlement will be dis-
cussed with those employees now on strike. It has been suggested
by the Attorney and the Committee representing the strikers
that the strike be called off immediately and that
"All persons employed by the Company at the time the strike
was called shall be reinstated to their former positions as soon
as work is. available without discrimination for union membership
.or activity."
The above is taken from a memo that was handed to the
writer by the Attorney for the Committee and we are giving
serious consideration to accepting the Attorney's proposal in
part as substantially correct as to law and policy.
If and when the management of the Company accepts the At-
torney's proposal it will be understood that all employees who
return to work will receive an advance of 10% of the basic
wages, effective July 1st; and, it is further understood that if
any employee is not satisfied with his basic wage, with the added
10%, then he will have the right to present his grievance to the
management immediately, and his grievance will be given full
consideration for final determination of the matter.
On the other hand if there is any group of employees who
desire to form a labor union, such as recognized and formed
under,.the law, these employees will then proceed to form their
union to conform to the law, and the management will recognize
this union as the exclusive bargaining agent of the employees in
their labor relations with the Company, bearing in mind that
there are a number of employees who have expressed a desire
to conduct their labor relations as individuals and that these
employees will be protected in their legal rights.
It is further understood that pending the forming of a labor
union, or in the absence of any specific unsettled grievance, these
employees will be paid the 10% advance in basic wages, which
they received prior to leaving their employment on June 15th.
It is to be hoped that all former employees and those now
working will attend this meeting for a better understanding of
our labor policy and a satisfactory compliance with it all around.
I further desire to state that each and every employee may
be assured that there will be no trouble whatever in attending
this meeting or coming to or going from this plant at any.other
960 DEOISIONS OF NATIONAL, LABOR RELATIONS BOARD
time, as the St. Louis Police Department , from the Chief on
down, have assured us that each and every employee will be given
protection in coming to and going from work.
If for any reason you cannot attend the meeting , I would sug-
gest that you write me a letter and tell -me that you could not
come or did not desire to come under the conditions , as it will
be understood that those who do not attend have no further
interest in their position with this company, and the Company
will so take it.
With best wishes for a pleasant 4th of July, and a sincere
desire that we may be able to reach a satisfactory understanding
between us , beg to remain
Very sincerely yours,
D. A. BLANTON,
President.
Pursuant to this letter, a meeting of the employees was held at
which Dorn read and Blanton discussed a prepared statement of the
respondent's labor policy. The striking employees did not attend
this meeting but were allegedly represented by their committee of
five.
The labor policy provided :
Referring further to the National Labor Relations Act, the
Supreme Court has stated in sustaining the Act, "It does not
compel any agreement whatever." This being the law, this
Company will not sign any agreement 10
As explained in statement of June 1st, The Blanton Company
has carried a number of its old employees who have now reached
an age where they cannot stand the demands of the so-called
union shop, and it will be necessary for us to retain this type
of labor on terms agreeable to the individual and the manage-
ment, or have it understood that the employe will pass a test as
to physical fitness.
Some union shops refuse to employ men who have attained the
age of forty-five years and if we find that we are handicapped in
our new relations the Company reserves the right to eliminate any
employe who has become incapacitated on account of age. This
Company has paid employes full time when away on account of
sickness, some employes having been carried as much as months
at a time, and it is submitted that this is contrary to union.
practice, and this policy will not be continued.
10 The contents of some of the statements in the respondent 's message were obtained
from the "Comments on the National Labor Relations Act by the Industrial Association of
St. Louis, Inc."
BLANTON COMPANY 961-
All employees understand that our properties are located in
what is known as the Memorial Park site which is being taken
over by the United States Government for national park pur-
poses: Since the President of the Company addressed the em-,
ployes on June 1st, he has conferred with a high Government
official who has told him that our plant will be condemned in
due course, and it is only right and reasonable that all employes
know that there is a serious question as to whether the Company
will continue to operate in St. Louis, and all employes now have
the right to protect themselves against future contingencies over
which we have no control.
If we approach our problems of labor relations in a sane man-
ner and talk the language of the grease business on a man-to-man
basis we will get somewhere with success to labor and satisfaction
to the management. On the other hand, if we allow ourselves
to become involved with lawyers and their technicalities and
others who do not understand our problems, we are likely to be-
come involved in loss of time and expense that will be paid out
of our hard earned income. The Company feels that the less
money we pay out to useless attorneys the more we will have to
pay for real service.
Blanton further stated that the meeting was called as a result of
the letter received from the union attorney on July 2, 1937; that
inasmuch as the striking employees did not attend, it was evident that
the attorney had refuted his letter; and that as this was not the first
complication growing out of outside representation,. "it would be the
policy of the Company in the future to deal direct with the em-
ployees either as individuals or through any group or any committee
representing any group strictly according to law."
On July 8 and 9, 1937, Blanton met with a committee of the em-
ployees. This committee was comprised solely of members satisfac-
tory to Blanton because of his refusal to meet with union organizers,
union attorneys, and certain employees. Blanton prepared and read
memoranda at these meetings which purported to be an agreement in
settlement of the strike.
Pursuant to these memoranda, the majority of the strikers re-
turned to work on July 17, 1937, and the strike was terminated. The
terms of the strike settlement provided that the Union would be
recognized by the respondent as the bargaining agency for its mem-
bership only, the bargaining to be done by an elected committee of
its members; that the committee or the employees would deal at all
times with the respondent; and that no outsiders would participate
or be involved in any bargaining or negotiations between the re-
spondent and its employees.
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 12, 1937, Harry D. Lee, president of the Union, told
Blanton that there was no union in the plant at that time.. Blanton
immediately dictated and had mimeographed in the respondent's,
office a statement reading :
THE BLANTON COMPANY
Effective this date I desire to conduct my labor relations
direct with the management of the Company.
----------------------------
This statement was distributed to all the employees in the plant.
As a result of the answers to this poll, Blanton sent a letter to the
employees stating that approximately 100 per cent of the employees
had expressed the desire to conduct their labor relations direct with
the management and that the respondent was giving consideration
to returning to its former plan [the profit-sharing plan] which was
built up from years of experience. Blantoii testified that shortly of-,
terwards the respondent returned to its former methods of operation.
On January 11, 1938, the Union sent a letter to Blanton requesting
a conference for the purpose of collective bargaining and the rein-
statement of the employees refused reinstatement after the strike.
Blanton called together the members of the negotiating committee of
July 8 and 9, 1937, and asked them to read and sign a letter he had
dictated in reply to the union request. The letter stated that the
employees in the plant were satisfied with the agreement of July
1937, that the,committee had canvassed the employees in the plant
and had obtained approximately 100 per cent of the signatures of
the employees to a written understanding as to their future labor
relations, that these labor relations did not contemplate any outside
representation, and that the committee was continuing to function as
a representative of the employees in a. general way without any "com-
pany union." This letter was signed by all five committeemen and
a copy of the letter was sent to the. Board.
(b) Conclusions
We are satisfied from the foregoing findings of fact that the re-
spondent refused to bargain collectively with the Union and at the
same time deliberately pursued a policy designed to discourage its
employees from exercising the rights guaranteed by the Act. Blan-
ton's speech of June 1, 1937, the poll conducted by Dorn on June 6,
and the questionnaires, letter, and bonus payments issued on June 11
constituted a series of threats and bribes which plainly demonstrated
BLANTON COMPANY -963
to the employees the respondent's opposition to .the. Union and its
desire that they refrain from engaging in any form of union activity.
The keynote of the respondent's policy was sounded in the repeated
request that the employees choose between the "union plan" and the
"profit-sharing plan." The issue was thus clearly drawn between
the acceptance of the respondent's "policies" and the retention of
membership in the Union. Not satisfied with drawing this issue,
the respondent used every facility at its command to induce its em-
ployees to renounce the Union and accept the respondent's "policies."
The respondent made- clear to-its employees - that the choice of the
",union plan" would be followed by, lay-offs, the loss of bonuses, and
the removal of the plant to a site outside St. Louis,-that the choice
of the Union indicated opposition to the respondent's policies. At
the same time the respondent made equally clear to its employees
that the choice of the "profit-sharing plan" would be rewarded with
vacations with pay, further bonuses, and continued employment,-
that the choice of the "profit-sharing plan" indicated loyalty to the
respondent and approval of its policies.
The respondent's employees, in considering the desirability of ad-
hering to, the Union and being represented by it, had the right to
make their own decisions free from the respondent's interference.
The employees were obviously not permitted this freedom. The re-
spondent injected itself into the field of 'self-organization, a field
reserved exclusively to its employees, marshalled all the economic
weapons at its command, and sought to destroy the desire of the em-
ployees for self-organization and collective bargaining. The prospect
of vacations with pay and further bonuses,, and the bonus payments
of June 11 were obviously offered to discourage union activity.l" The
threat of removal from St. Louis should the employees adhere to the
Union served to magnify the respondent's largess. In the face of such
overwhelming, opposition to union activity the employees were help-
less. It is not therefore surprising that the respondent could assert
at the close of 1937'that the Union had been driven out of the plant.
The respondent urges that its plant site was subject to condemnation
proceedings and that it merely apprised the employees of this fact.
Such proceedings, however, had been pending for more than a year.
We have no doubt that the announcement was timed to defeat thee,
growth of the Union. Moreover, the respondent unlawfully utilized
the situation by threatening to reestablish its plant outside the city
"See Matter of, Roberti Brothers , Inc. and Furnitare . workers Union, Local 156.4,8 N: I.
R. B. 925.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if its employees persisted in their union activity.12 The respondent
.contends that it continually reminded the employees of their freedom
to join a union if they so desired. Such statements, however, when
accompanied by threats of reprisals , as here, do not nullify the co-
ercive effect of the respondent's activities.-
The circumstances described above point irresistibly to the con-
clusion that the respondent, although meeting with the Union, merely
followed the form rather than the substance of collective bargaining.
The respondent vilified outside representatives, appealed directly to
its employees individually to accept the respondent's profit-sharing
plan rather than union representation, dictated the personnel of the
union bargaining committee, refused at the outset to enter into a
signed agreement with the Union, announced the respondent's policy
of dealing "direct with the employees either as individuals or through
any group of any committee representing any group," and finally
compelled a hand-picked committee of its employees to accept a
memorandum purporting to be a strike settlement agreement.
The respondent contends that it did in fact bargain collectively
with the Union, and that such bargaining resulted in the strike set-
tlement agreement of July 8 and 9, 1937. As noted above, the so-
called agreement of July 8 and 9 settling the strike contained no pro-
visions for recognition of the Union as the exclusive bargaining repre-
sentative of the employees. At most, the documents dictated and
read to the committee by the respondent were no more than statements
of policy accepted by the committee 'under the compulsions brought
about by the respondent's unfair labor practices rather than an agree-
ment resulting from genuine collective bargaining. The respondent's
brief states that "there were changes from time to time in the personnel
of this committee; at Blanton's request some members were rejected,
but the employees selected their substitutes." It is apparent that the
employees designated the committee to represent them in the strike
settlement solely because the respondent refused to deal with the
Union's organizer and attorney, the bargaining representatives of
their own choice. Under such circumstances, to hold that the com-
mittee was the freely chosen representative of the employees or that
the respondent was under no further obligations to bargain with the
Union would be to nullify the provisions of Section 8 (5) of the Act.14
As we have stated in Matter of Stewart Die Casting Corporation and
United Automobile Workers of America, Local No. 998, et al .,15 in-
12See Matter of Southern Colorado -Power Co., a corporation and H. H. Stewart and
I. L. Watkins , individuals , 13 N. L. R. B. 699.
" Matter of Southern Colorado Power Co ., supra, footnote 12.
14 Matter of Scandore Paper Boa Co ., Inc. and Continental Container Corporation and
Paper Box Makers Union, Local 18239, 4 N. L. R. B. 910.
1514 N. L. R. B. 872.
I
BLANTON COMPANY 965
volving the consideration of an agreement similarly obtained by an
employer :
Nor are the rights of the striking employees or the obligations
of the respondent under the Act regarding them affected in
any manner by reason of the U. A. W.'s acquiescence in the
terms and conditions of the strike settlement. The U. A. W.
was striking for recognition as the bargaining representative
of the employees for collective bargaining. By the conditions
of the strike settlement the respondent perpetuated its unfair
labor practices and neither recognized the U. A. W. nor nego-
tiated regarding its demands. At the time of the settlement the
parties occupied the relative positions of victor and vanquished
in the economic warfare which had taken place, with. the re-
spondent as victor, and thus able to dictate its own terms and
conditions as to peace. The respondent's occupation of this
strategic position was not due to legitimate use of its superior
economic force as a weapon in combatting the equally legitimate
exercise by the employees of their right to strike, but the strike
had been prolonged and the respondent's victory therein achieved
by the respondent's resort to practices condemned under the Act.
Finally, subjugated by reason of the unfair labor practices of
the respondent, and no longer able to continue the fight, the
U. A. W. had no alternative but to accept the terms and con-
ditions dictated by the respondent. To hold under these cir-
cumstances that acquiescence by the U. A. W. in the terms and
conditions imposed by the respondent operated to deprive the
employees of any of their rights under the Act, would be to
give legal sanction to the illegal acts which finally compelled
the U. A. W. to accept the settlement, in lieu of its unequivocable
right to recognition and collective bargaining, and the equally
unequivocal right of the individual employees to reinstatement
upon the conclusion of the strike prolonged after March 23,
1937, by the respondent''s unfair labor practices.
The foregoing language is equally applicable here.
Finally, while the attitude of the respondent prevented genuine
collective bargaining, the respondent in addition indicated through-
out that it would not enter into a signed agreement, even though an
understanding were reached. We have held under substantially sim,
ilar circumstances that collective bargaining in good faith ordinarily
requires a willingness to embody terms reached in a signed
agreement.16
16 See Matter of Inland Steel Company and Steel Workers Organizing Committee and
Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge Nos. 64,
1010, and 1101, 9 N. L. R. B. 783; Matter of Highland Park Manufacturing Co. and Textile
Workers Organizing Committee, 12 N. L. It. B.. 1238, and cases cited therein.
I
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find; that on June 2, 1937, and at all times thereafter, the re-
spondent refused to bargain collectively with the Union as the
exclusive representative of its employees in an appropriate unit' in
respect to wages, rates of pay, hours of employment, and other
conditions of employment. We further find that the respondent, by
the acts set forth above, including its refusal to bargain collectively
with the Union, interfered with, restrained, and coerced its employees
in the exercise of their right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining and other mutual aid ai d
protection as guaranteed in Section 7 of the Act.
We further find that the strike was caused by the respondent's
refusal to bargain collectively with the Union.
B. Discrimination with respect to hire and tenure of employment
As stated above, on July 8 and 9, 1937, the respondent and the
committee of employees came to an agreement for the settlement of
the strike, which provided, among other things, that the employees
would terminate the strike and that the respondent would reinstate
all strikers to their former positions as soon as work was available.
The complaint, as amended, alleged that the respondent, refused to
reinstate 15 striking employees because of their melrlbership in
and activity on behalf of the Union. As stated above, during the
hearing the names of five of these were dismissed from the
complaint."
The respondent contends that under the strike settlement, as evi-
denced by the memorandum of settlement, it was not required to
reinstate these strikers. For the reasons stated above, however, the
strike settlement did not deprive the individual employees of their
unequivocal right to reinstatement upon the conclusion' of the unfair
labor practice strike.
Inasmuch as the strike was caused by the respondent's unfair labor
practices, the striking employees were, in the absence of some valid
cause for discharge, entitled to reinstatement to their former posi-
tions upon request.18 Since the respondent relies upon specific
reasons for its refusal to reinstate each of the strikers alleged to
37 Philip Sulzak , Ed. Loehr, Betty Norman , Nettie Barger , and Rose Niemeier.
1s Black Diamond Steamship Corp. v . National Labor Relations Board, 94 F. (2d) 875,
cert. den ., 304 U. S . 579, enforcing order in Matter of Black Diamond Steamship Corpora-
tion and Marine Engineers ' Beneficial Association, Local No. 38, 3 N. L. R . B. 84; Matter
of McKeig-Hatch, Inc . and Amalgamated Association of Iran, Steel, and Tin Workers of
North America, Local No. 1139, 10 N. L. R. B. 33; Matter of Western Felt Work, a corpo-
ration and Textile Workers Organizing Committee , Western Felt Local, 10 N. L . R. B. 407.
The strikers would, under the doctrine of the foregoing cases, be entitled to reinstatement
even though they had been displaced by new employees during the strike. In the instant
case, however , none of the strikers in question had been replaced and consequently such
issue does not arise.
BLANTON COMPANY 967
have been discriminated against, we shall consider the case of each
employee separately., -' -
Clarence Mitchell began his employment with the respondent in
1920.' He was employed as an oil blender at the time of the strike.
Mitchell had been a foreman in the respondent's plant until 1936-
when he relinquished that position due to illness. After an absence
of several months in 1936, he returned to work and was told by C. C..
Mannebach, vice president of the respondent, that he had a lifetime
job in the plant.
Mitchell was not returned to the respondent's employ at the termi-
nation of the strike. He testified that on. the first day of the strike,,
James Van Amiscourt, his foreman, stated to him, "Charlie, if T
were you I would stay off the picket line, I wouldn't be showing-
my face around because the old man [Blanton] • is sore at you any--
way." Although Van Amiscourt testified at the, hearing, he did not
deny having made this statement and we accept Mitchell's testimony-
as true. Mitchell was captain of the picket line during the strike.
The respondent contended that it did not reinstate Mitchell because-
of his illness and continued absence from work. Van Amiscourt
testified that Mitchell absented himself from his duties four or five-
times a month. However, the respondent produced no records at
the bearing substantiating this testimony. Mitchell testified that-
he was absent only 3 days in the 14 months preceding the strike..
At no time was Mitchell censored for his absences. We accept
Mitchell's testimony as true.
Shortly after the termination of the strike, Mitchell asked Man-
nebach to be reinstated to his former position. Mitchell testified'
that Mannebach replied, "Well, Charlie, the old man [Blanton] is.
pretty sore at you for joining the local and being out on the picket
line. He figured you had no business joining the Union, that you
should have stuck with them, and seeing you on the picket line.
made him sore all the more." Mannebach denied having made this
statement. In view of the respondent's vigorous attacks- upon the
Union, however, we credit Mitchell's testimony.
It is plain from the record that if Mitchell was guilty of frequent
absences, as asserted by the respondent, he was never warned about-
them. The evidence is uncontradicted that he was an excellent work-
man while on the job. The fact that prior to the strike the respond-
ent saw fit to retain Mitchell, without so much as an admonition
concerning his alleged frequent absences, is a clear indication that
the reason advanced by the respondent for its refusal to, reinstate
him was culled ex post facto to screen its true motive.'9'
10 See Matter of Highway Trailer Company and United Automobile Workers of America;.
Local No. 135 and Local No. 136, 3 N. L. R. B. 591 , order enforced in National Labor Rela-
tions Board v. Highway Trailer Company, 95 F. (2d ) 1012 (C. C. A. 7th; 1938)'.
2472,83-40-vol. 16--62
968 DEOISIONS' OF NATIONAL LABOR RELATIONS BOARD
We find that the respondent, by refusing to reinstate Mitchell on
July 12, 1937, and at all times thereafter, discriminated in regard
to his hire and tenure of employment, thereby discouraging member-
ship in the Union and interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
.
George Bickel was working as an assistant engineer at the time
of the strike and had been employed by the respondent in this capac-
ity since 1926. Bickel was a member of the union negotiating com-
mittee and active on the picket line. He testified that on the first
day. of the strike Peterson, his foreman, stated to him, "George, you've
got one more chance to work in this factory ... I got a paper
here for you to sign. Are you for the Company or against the
Company?". Bickel replied that he was for the Union. Peterson
was not called as a witness at the hearing and we find that he made
the statements attributed to him by Bickel.
After the strike, Bickel asked Blanton for reinstatement. Blanton
asked him why he had been on the picket line and told him to seek
another job.
The respondent contended that it did not reinstate Bickel to his
former position because he was not licensed as required by the St.
Louis Code. and Ordinances. Peterson resigned from his position
during the strike and the chief engineer hired to take his place re-
fused to work with unlicensed assistants.
Despite the fact that Bickel was not a licensed engineer he had
occupied the position as assistant engineer for the respondent for a
period of 11 years. In view of Peterson's and Blanton's statements
to him, it is apparent that the real reason Bickel was refused rein-
statement was not because he was an unlicensed engineer but because
of his union activity.
We find that the respondent, by refusing to reinstate Bickel on
July 12, 1937, and at all times thereafter, discriminated in regard to
his hire and tenure of employment, thereby discouraging membership
in the Union and interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of
the Act.
Henry Vollmer and Elmer Webb began their employment with the
respondent in November 1924 and January 1934, respectively. They
were employed as maintenance men at the time of the strike, acting
as carpenters, electricians, and pipe fitters. Both joined the Union
and participated in the strike.
Vollmer and Elmer Webb were not called back to their positions
at the termination of the strike. A week before the strike, Vollmer
testified that Peterson came to him and said, "The old man [Blanton]
BLANTON COMPANY 969
wants to know how the fellows stand." Vollmer replied that he had
signed a union card and was going to remain with the Union. Webb
testified that Peterson during this period asked him, "Are you going
to stick with the Union or are you going to stick with Blanton, with
the Company ?" Elmer Webb replied that he was going to stay with
the Union. Peterson was not called as a witness and we find that
he made the. remarks described above.
The respondent contends that its only reason for refusing to re-
instate Vollmer and Elmer Webb is that its plant is to be condemned
for a United States park project and that this necessarily meant a
curtailment of maintenance work. It appears from the evidence
that the respondent knew of the proposed condemnation of its plant
for approximately' a year prior to the time of the strike. There were
14 maintenance men in the plant at the time of the strike and the
respondent retained them all but Vollmer and Elmer Webb when it
resumed operations on July 12,1937 .20
At the time of the oral argument held before the Board on June
8, 1939, the plant had not yet been condemned. It thus appears that
the proposed condemnation had not been effected after at least 2
years' notice to the respondent. Nor did the respondent show by
credible evidence that such condemnation proceedings were imminent
in July 1937.
The foregoing facts, considered in the light of the respondent's
hostility toward unionization of its employees and the -steps which
it took to prevent their organization, as heretofore found, convince
us that the respondent refused to reinstate Vollmer and Elmer Webb
because of their activities on behalf of the Union, rather than because
of the alleged need for curtailment of maintenance work in the plant.
We find that the respondent, by refusing to reinstate 'Vollmer and
Elmer Webb on July 12, 1937, and at all times thereafter, discrim-
inated in regard to their hire and tenure of employment, thereby
discouraging membership in the Union and interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
George Partney, Charles Webb, and Fred Schroeder were first
employed by the respondent in the spring of 1937, the early part of
1936, and in June 1934, respectively. They were all working as com-
mon laborers at the time of the.'strike. They were members of the
Union, were active on the picket line, and were refused reinstate-
ment after the strike. Charles Webb, in addition to being active on
the picket line and during the course of negotiations with the
respondent, was treasurer of the Union.
It does not appear . from the evidence whether or not seniority or any other regular
plan of reducing the force was observed by the respondent in selecting the two maintenance
,men to be dropped.
970 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
Partney testified that shortly prior to the strike, Elwin Gile; his:
foreman, asked him whether he was in favor of joining the Union or
whether he was going to stay with the respondent and be satisfied
with the bonus plan that Blanton offered. Partney replied that
he was not in favor of the bonus plan and preferred the Union.
Schroeder testified that when he applied for reinstatement 3 weeks
after the termination of the strike, Gile stated to him that he was
-discharged for participating in the Union, and that "Anyway your
uncle is working here and we don't want any relatives working here
;anyway." The fact that Schroeder had an uncle on the pay roll of
the respondent was known by the respondent at the time he was
hired. Although Gile was called as a witness by the respondent and
testified at the hearing, he failed to deny the above testimony of
Partney and Schroeder which we accept as true.
The respondent contended that Partney, Schroeder, and Charles
Webb were not reinstated after the strike because of their inefficiency..
Various supervisory officials of the respondent testified that Partney,.
Schroeder, and Charles Webb were inefficient and had on numerous
occasions, prior to the strike, "loafed" on the job. Mannebach testi-
fied that the respondent had determined to discharge these three men
prior to the strike but refrained from doing so because of their union
affiliation. The evidence is uncontradicted that these three men were
never apprised that their work was unsatisfactory.
Assuming that the respondent's allegations of incompetence are
meritorious, nevertheless, if the respondent refused to reinstate Part-
ner, Schroeder, and Charles Webb on July 12, 1937, because of their
affiliation it committed an unfair labor practice whatever "proper
causes" may then have existed for terminating their employment.
While proof of the presence of proper causes at the time of the
refusal to reinstate may have relevancy and substantial bearing in
explaining what otherwise might appear as a discriminatory dis-
charge, such proof is not conclusive. The issue is whether such
causes in fact induced the refusal to reinstate or whether they are
but a justification of it in retrospect.21
The fact that the respondent claimed that Partney, Schroeder,,
and Charles Webb were inefficient several weeks before the strike but
chose not to warn them or to take any disciplinary measures, and in
light of Gile's statements to Partney and Schroeder, we believe that
the respondent's true motive in refusing Partney, Schroeder, and
Charles Webb reinstatement was their union affiliation rather than
their alleged inefficiency. -
21 Matter of Kelly -Springfleld Tire Company and United Rubber Workers of America,
Local No. 26,,and James Reed and Minnie Rank, 6 N. L. R. B . 325, order enforced in The-
Kelly-Springfield Tire Company v . National Labor Relations Board, 97 F. (2d) 1007
(C. C. A. 4th, 1938).
BLANTON COMPANY 971
We find that the respondent has discriminated in regard to the
hire and tenure of employment of George Partney, Fred Schroeder,'
and Charles Webb, thereby discouraging membership in the Union
:and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
George Bennett began his employment with the respondent in
February 1927. He was employed as a common laborer in the plant
and at the time of the strike was engaged in the work of processing'
beef suet. He was a member of the Union, was active in the picket
line, and was denied reinstatement at the termination of the strike.
The respondent contended that it did not reinstate Bennett because
it discontinued buying raw beef fat and thus had no further neces-
sity for Bennett's services. The evidence is uncontradicted that no
one was hired or delegated to take over Bennett's former duties
in the plant.
It is apparent from the foregoing facts that Bennett was refused
reinstatement because of respondent's change in method of opera-
tion rather than because of an anti-union animus on the part of the
respondent.
We find that the respondent has not discriminated with regard
to the hire and tenure of employment of George Bennett.
Elza Smith was working as a trackman at the time of the strike
and had been. employed by the respondent in this capacity since
January 1, 1937. Smith was a member of the union negotiating
-committee and active on the picket line. During the strike, Smith
was arrested for assaulting Mannebach during a fracas that occurred
outside the plant. The respondent contends that it did not reinstate
Smith because of his assault upon Mannebach.
From all the evidence in this case, we conclude that the respond-
ent's refusal to reinstate Smith was not an unfair labor' practice
within the meaning of the Act.
Kilbourne Hicks was first employed by the respondent in January
1937. He was employed as a trackman at the time of the strike.
Hicks testified that he was receiving medical treatment throughout
the period of the strike for an injury suffered in the plant several
days before the strike. He took no part in union activities before,
during, or after the strike. The respondent contends that Hicks
was an inefficient workman and for that reason was not called back
when'the plant reopened.
. We conclude that there is insufficient evidence to sustain the alle-
gations of the complaint with respect to Hicks. Therefore, the
allegations charging the respondent with having discriminated
against Hicks in violation of Section 8 (3) of the Act will be
dismissed.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to the employees alleged to have been unlawfully
refused reinstatement after the strike the complaint alleges that five
employees, who were reinstated at the conclusion of the strike, were
subsequently discharged for union activity :
Roscoe Jones was first employed by the respondent in July 1934
and was working as a deodorizer at the time of the strike. Jones
was a member of the Union and served on the picket line during
the strike. He was reinstated to his former-position at the conclu-
sion of the strike and retained it until about September 1, 1937. At
that time, he was discharged by Gile for having caused a spill of
approximately - 8,000 pounds of oil. The respondent contends that
this was the- only reason for Jones' discharge, and introduced evi-
dence to show that on previous occasions two employees had been
instantly discharged for the same type of negligence.
It appears from the foregoing facts that Jones was not discharged.
because of his union activities. Therefore, the allegations charging
the respondent with having discriminated against Jones in violation
of Section 8 (3) of the Act will be dismissed.
Margaret Gross, Lena Niemeier'22 Leona Clirisco, and Helen.
Schlueter were first employed by the respondent in June 1935, in
July 1936, in 1938, and in May 1937, respectively. They were all
members of the Union and all served on the picket line during the
strike. They were reinstated to their former positions at the termi-
nation of the strike and retained until April 1938, when they were all
discharged.
These women were engaged in the work of cartoning at the plant..
In March 1938; the respondent installed a wrapping machine thus.
eliminating the work of four women. The work of cartoning and
wrapping is interchangeable. All of these discharged women were
married and the respondent introduced evidence to show that it,
followed a policy of discharging or laying off married women first.
From the foregoing facts it is apparent that the respondent dis-
charged Gross, Niemeier, Chrisco, and Schlueter because their jobs
were eliminated rather than because of an anti-union animus. Ther
allegations charging the respondent with having discriminate&
against Gross, Niemeier, Chrisco, and Schlueter in violation of Sec-
tion 8 (3) of the Act 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 re-
spondent described in Section I above, have a close, intimate, and
22 Incorrectly designated Lena Nelmeler In the complaint.
BLANTON COMPANY 973
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 unfair labor prac-
tices, we will order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act and to restore as nearly as possible the condition which existed
prior to the commission of the unfair labor practices.
We have found that on June 2, 1937, and thereafter, the respondent
refused to bargain collectively with the Union. The respondent con-
tends that the Union no longer represents a majority of employees
within the appropriate unit. We have found, however, that prior
to the respondent's unfair labor practices, the Union had the member-
ship of a large majority of such employees. If this membership
waned, it was a result of these unfair labor practices. To permit the
respondent to relieve itself by such methods of the obligation to
bargain collectively, would violate the purpose and policies of the
Act.23 In addition, since the respondent refused to enter into a signed
agreement regardless of the terms, and since we have found that this
constituted a refusal to bargain collectively, we shall address our
order specifically to the wrong sought to be remedied and order the
respondent to embody any understandings reached in a signed
agreement upon request.
We have found that the respondent engaged in unfair. labor prac-
tices in refusing to reinstate Henry Vollmer, Elmer Webb, George
Bickel, Charles Mitchell, Charles Webb, George Partney, and Fred
Schroeder. We shall order the respondent to offer reinstatement to
23 Cf. Matter of Inland Steel Company and Steel Workers Organizing Committee and
Amalgamated Association of Iron, Steel and Tin Workers of North America , Lodge Nos. 64,
1010, and 1101, 9 N. L. R . B. 783, where we said :
"The necessary delays incident to the adjudication of a dispute have postponed the
Board's order until a time considerably subsequent to the original wrongful refusal to bar-
gain . The refusal to bargain collectively disrupts the morale of the men , has a . deterring
effect upon the organizational activity of the Union and a discouraging influence on mem-
bers already gained which tends to induce them to drop from the ranks . . . If an order
to bargain collectively cannot be deemed an appropriate remedy for the refusal to bargain
collectively unless the [ Union's] majority is kept intact until the Board can issue a deci-
sion, the plain policy and intent of the Act will be defeated . The respondent would be
permitted further to evade the obligation of Section 8 (5) by profiting from the discour-
aging effects of its already accomplished violation of that very obligation . We cannot
concede the validity of such a doctrine of futility , and we hold that to effectuate the poli-
cies of the Act, the respondent's refusal to bargain must be remedied by an order to bar-
gain, based on the majority obtaining on the date of the refusal to bargain."
See also Matter of Arthur L. Colten and A. J. Colman, co-partners , doing - business as
Kiddie Kover Manufacturing Company, and Amalgamated Clothing Workers of America,
6 N.. L. R . B. 355, aff . in National Labor Relations Board v. Arthur L. Colten and Abe J.
Colman, co-partners doing business as Kiddie Kover Manufacturing . Company, . 105 F. (2d).
179 (C. C. A. 6th , 1939).
°974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these employees to their former or substantially equivalent positions
:and to make them whole for any loss of pay they have suffered by
reason of their respective discriminations by payment to each of them
of a sum equal to the amount which he normally would have earned
:as wages from the date of the refusal to reinstate to the date of the
-offer of reinstatement, less his net earnings 24 during said period.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. United Oleomargarine Workers Local Industrial Union No. 489
is a labor organization, within the meaning of Section 2 (5) of the
Act.
2. The production and maintenance employees of the respondent,
-excluding supervisors and office and clerical employees, constitute a
unit appropriate for the purposes of collective bargaining, within the
-meaning of Section 9 (b) of the Act.
3. United Oleomargarine Workers Local Industrial Union No. 489
is and has been at all times since June 1937, the exclusive representa-
tive of all the employees in such unit for the purposes of collective
bargaining, within the meaning of Section 9 (a) of the Act.
4. By refusing and continuing to refuse to bargain collectively with
United Oleomargarine Workers Local Industrial Union No. 489 as
the exclusive representative of its employees in the appropriate unit,
the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (5) of the Act.
5. By discriminating in regard to the hire and tenure of employ-
ment of Henry Vollmer, Elmer Webb, George Bickel, Charles
Mitchell, Charles Webb, George Partney, and Fred Schroeder,
thereby discouraging membership in the Union, the respondent has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of. the Act.
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of. the Act.
"By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, 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 thgreof 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.
BLANTON COMPANY 975
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
8. The respondent has not discriminated in regard to hire or tenure
of employment of Kilbourne Hicks, Elza Smith, George Bennett,
Roscoe Jones, Lena Niemeier, Leona Chrisco, Margaret Gross, and
Helen Schlueter, thereby discouraging membership in a labor organi-
zation, within the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, The Blanton Company, St. Louis, Missouri, and its officers,
agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Oleomargarine Workers
Local Industrial Union No. 489 or any other labor organization of its
employees by refusing to reinstate or in any other manner discrim-
inating in regard to hire and tenure of employment or any term or
condition of employment of any of its employees;
(b) Refusing to bargain collectively with United Oleomargarine
Workers Local Industrial Union No. 489 as the exclusive representa-
tive of all its production and maintenance employees, excluding
supervisors and office and clerical employees;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right of self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Oleomargarine
Workers Local Industrial Union No. 489 as the exclusive representa-
tive of all its production and maintenance employees, excluding
supervisors and office and clerical employees, in respect to rates of
pay, wages, hours of employment, and other conditions of employ-
ment, and, if an understanding is reached on such matters, embody
said understanding in a signed agreement;
(b) Offer to Henry Vollmer, Elmer Webb, George Bickel, Charles
Mitchell, George Partney, Charles Webb, and Fred Schroeder im-
mediate and full reinstatement to their former or substantially
'976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivalent positions without prejudice to their seniority and other
rights and privileges;
(c) Make whole Henry Vollmer, Elmer Webb, George Bickel,
Charles Mitchell, George Partney, Charles Webb, and Fred
Schroeder for any loss of pay they may have suffered by reason of
the respondent's refusal to reinstate them, by payment to each of
them of a sum of money equal to that which he would normally have
earned as wages from the date of the respondent's refusal to rein-
state him to the date of such offer of reinstatement, less his net earn-
ings during said period; provided, however, that the respondent shall
deduct from the amount otherwise due each of the said employees
monies received by him during said period for work performed on
any Federal, State, county, municipal, or other work-relief projects,
a.nd pay over the amount so deducted to the fiscal agency of the
Federal, State, county, municipal, or other government or govern-
ments which supplied the funds for said work-relief projects;
(d) Immediately post notices in conspicuous places throughout its
:plant, and maintain such notices for a period of at least sixty (60)
consecutive days, stating that the respondent will cease and desist in
the manner set forth in 1 (a), (b), and (c) and that it will take the
affirmative action set forth in 2 (a), (b), and (c) of this Order;
(e) Notify the Regional Director for the Fourteenth Region in
writing within ten (10) days from the date of this Order, what steps
.the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the allegations of the amended
.complaint, charging the respondent with engaging in unfair labor
practices within the meaning of Section 8 (3) of the Act by refusing
to reinstate Betty Norman, Kilbourne Hicks, Ed. Loehr, Elza Smith,
Philip Sulzak, Nettie Barger, Rose Niemeier, and George Bennett,
and by discharging Roscoe Jones, Lena Niemeier, Leona Chrisco,
Margaret Gross, and Helen Schlueter, be, and they hereby are,
dismissed.