The Boss Manufacturing Co.

National Labor Relations Board - Board Decisions

Aug 27, 1937

3 N.L.R.B. 400 (N.L.R.B. 1937)

In the Matter of THE Boss MANUFACTURING COMPANY and INTER-
NATIONAL GLOVE WORKERS' UNION OF AMERICA, LOCAL No. 85
Cases Has. C-115 and B-40.-Decided August 07, 1937
Glove Manufacturing Industry-Interference, Restraint or Coercion: anti-
union statements ; attempts to persuade employees to resign from union ; efforts
to secure disclosure of identity of union members ; questioning employees regard-
ing union activities and meetings-Unit Appropriate for Collective Bargaining:
production employees ; eligibility for membership in complaining union-Repre-
sentatives: proof of choice : membership in union-Collective Bargaining: refusal
to recognize and negotiate with union as exclusive representative; insistence
upon proportional representation ; employer's duty as affected by majority rule-
Discrimination: discharges for union activity ; non-reinstatement following
strike-Strike: provoked by employer's unfair labor practices-Employee Status:
strikers; employees discriminatorily discharged-Reinstatement Ordered: em-
ployees discharged ; strikers, upon application for reinstatement-Back Pay
Awarded: employees discharged ; strikers, from date of denial of application
for reinstatement.
Mr. Robert R. Rissman for the Board.
Fyffe and Clarke, by Mr. John Harrington, of Chicago, Ill., for the
respondent.
Mr. Hyman A. Schulson, of counsel to the Board.
DECISION
STATEMENT OF THE CASE
Upon charges duly filed by International Glove Workers' Union
of America, Local No. 85, herein called the Union, the National Labor
Relations Board, herein called the Board, by Lynn W. Beman,
Regional Director for the Thirteenth Region (Chicago, Illinois),
issued its complaint dated April 17, 1936, against The Boss Manu-
facturing Company, Kewanee, Illinois, herein called the respondent,
alleging that the respondent had committed unfair labor practices
affecting commerce, within the meaning of Section 8, subdivisions
(1), (3), and (5), and Section 2, subdivisions (6) and (7), of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
The complaint and accompanying notice of hearing were duly
served upon the parties.
In respect to the unfair labor practices, the complaint, as amended,
alleged in substance (1) that the respondent discharged the follow-
ing employees upon the dates set forth and thereafter refused to
400
DECISIONS AND ORDERS 401
reinstate them : Marion McCullough, Joe Dragolovich, Jerry Barry,
and Lee Brandy on about July 5, 1935, William Schneider,' on about
July 12, 1935, Grace Bremmer on about July 8, 1935, and Nick Drago-
lovich,2 for joining and assisting the Union; (2) that on August 8,
1935, the Union was designated by a majority of the production
workers of the respondent as their representative for collective bar-
gaining; (3) that on about September 24, 1935, and thereafter, the
respondent had refused to bargain with the Union as the exclu-
sive representative of its production workers, who constituted a
unit appropriate for purposes of collective bargaining; (4) that
on several dates prior to August 8, 1935, the respondent had refused
to bargain collectively with the Union and that the result of such re-
fusals was a strike at the respondent's plant in Kewanee, Illinois,
lasting from August 5 to October 16, 1935; (5) and that the re-
spondent has urged, persuaded, and warned its employees against
becoming members of the Union, has kept the members and their
meetings under surveillance, and has otherwise coerced and intimi-
dated its employees and the Union.
On April 22, 1936, the respondent filed an answer to the complaint
admitting the general nature of its business and that it caused
certain raw materials to be purchased and transported in interstate
commerce, and certain of its products to be transported in inter-
state commerce, but denying that its acts constituted a flow of com-
merce among the several States. It further denied discharging the
employees named in the complaint, but admitted that it failed to
rehire Nick Dragolovich. It also denied the alleged unfair labor
practices.
Subsequently the respondent filed a written motion to dismiss the
complaint upon the grounds that the alleged unfair labor practices
do not constitute unfair labor practices affecting commerce as defined
by the Act, that the Board has no jurisdiction, and that the Act is
unconstitutional for several reasons.
On January 13, 1936, the Union petitioned the Board for an in-
vestigation and certification of representatives pursuant to Section
9 (c) of the Act. On March 27, 1936, the Board directed the Regional
Director to conduct an investigation and provide for an appropriate
hearing upon clue notice, pursuant to Section 9 (c) of the Act and
Article III, Section 3 of the National Labor Relations Board Rules
and Regulations-Series 1, as amended.
Pursuant to notice, a joint hearing on the complaint and peti-
tion was held in Kewanee, Illinois, commencing on April 30, 1936,
before Daniel M. Lyons, the Trial Examiner duly designated by
' The name of William Schneider Ras stricken from the complaint at the hearing.
2 The complaint does not allege the date of his discharge.
402 NATIONAL LABOR RELATIONS BOARD
the Board. The Board and the respondent were represented by
counsel. At the commencement of the hearing the motion of counsel
for the Board to consolidate the hearings in both the complaint and
representation cases was granted. Thereafter, counsel for the re-
spondent renewed the motion to dismiss upon the grounds set forth
in the written motion. The Trial Examiner denied the written and
oral motions to dismiss insofar as they rested upon the ground that
the Act is unconstitutional, reserving his ruling on the other grounds
until evidence as to the nature of the respondent's business had been
introduced. Counsel for the respondent excepted to the Trial Ex-
aminer's ruling, and asked leave to have its exception saved in the
event that the motion should be finally overruled. The Trial Exami-
ner granted the request. During the hearing, after evidence on the
respondent's relation to interstate commerce had been offered, the
Trial Examiner denied the respondent's motions to dismiss in their
entirety, saving the respondent's exceptions. After interposing his
motion to dismiss, John Harrington, counsel for the respondent,
announced that the respondent would rely upon its motions to dis-
miss and would not further participate in the hearing. He thereupon
departed from the hearing room.
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to produce evidence bearing upon the issues was afforded
to all parties. The respondent filed a brief to which we have given
due consideration.
Subsequently the Trial Examiner filed an Intermediate Report
on the complaint finding that the respondent had committed unfair
labor practices affecting commerce within the meaning of Section
8, subdivisions (1), (3), and (5), and Section 2, subdivisions (6) and
(7) of the Act, and recommending reinstatement and back pay to
Marion McCullough, Jerry Barry, and Grace Bremmer. However,
he found that the evidence did not sustain the allegations of the,
complaint that the respondent had refused to rehire Nick Dragolo-
vich and had discharged and refused to reinstate Jess Harlan, Lee
Brandy, and Joe Dragolovich because of union activities. Excep-
tions to the Intermediate Report were thereafter filed by the
respondent.
On July 28, 1937, the Board granted the Union permission to
withdraw its petition.
We find no error in the Trial Examiner's rulings upon the re-
spondent's motions and objections, and such rulings are hereby af-
firmed. As set forth below, we also find that the evidence supports
the findings and conclusions made by the Trial Examiner in his
Intermediate Report that the respondent had engaged in unfair
labor practices affecting commerce, within the meaning of Section 8,
subdivisions (1), (3), and (5), and Section 2, subdivisions (6) and
DECISIONS AND ORDERS 403
(7) of the Act. However, for reasons set forth below, we find that
the Trial Examiner erred in finding that Jess Harlan had not been
discharged for union activities. We have fully considered the other
exceptions to the Trial Examiner's Intermediate Report and find no
merit in them. They are hereby overruled.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. RESPONDENT AND ITS BUSINESS
The respondent, The Boss Manufacturing Company, is an Illi-
nois corporation, having its administrative and general nianageinent
offices and a plant at Kewanee, Illinois. The officers of the re-
spondent are: Thomas R. Stokes, president; Ellis J. Waller, vice
president; Charles D. Terry, secretary and treasurer; and Frank
M. Lay, chairman of the board of directors. Its sales offices and
branch factories used for purposes of manufacture, storage, sale,
and distribution of its products are located in Toledo, Findlay, and
Bluffton, Ohio; Fort Wayne and Lebanon, Indiana; Chicago, Peoria,
and Kewanee, Illinois; Kansas City, Missouri; Los Angeles, Cali-
fornia; and Brooklyn and New York, New York. The respondent's
stated capital is $3,250,000.00; the total value of all its property
everywhere is $4,426,106.86; its gross business transacted during 1935
was $4,327,194.84, of which $1,155,079.03 was transacted in Illinois.3
The respondent is principally engaged in the manufacture, sale,
and distribution of workmen's gloves, mittens, and corn huskers 4 and
is the largest manufacturer of workmen's gloves in the United
States. The plant at Kewanee consists of the machine shop, sewing,
receiving, stock, and shipping rooms, cloth cutting, leather cutting,
riveting, cuff, finishing, and clerical departments. The principal
raw materials used by the respondent in the manufacture of its
finished products are leather, cotton, hide skins, flannel cloth, duck-
ing, canvas, cotton cloth, knit tubing, thread, steel, cartons, boxes,
rivets, coal, and coke. Over 50 per cent of the raw materials pur-
chased by the respondent come from States other than the State
of Illinois. They are shipped to Kewanee, Illinois, by rail, express,
and motor truck.
The cloth comes to the Kewanee plant in bales and is there cut
into the shape of gloves. The leather comes to the plant in bundles
or bales and is there cut into pieces for leather palms, leather finger-
tips and other pieces, to be combined by sewing into gloves made of
a combination of leather and cotton. Some of the cut leather is put
3 Board's Exhibit No. 8.
4 Corn huskers are hook -like implements fitted to the hand by means of leather straps or
thongs.
404 NATIONAL LABOR RELATIONS BOARD
into bundles and shipped to other plants of the respondent to be
there combined with cotton gloves. After the gloves are sewed,
they are finished and prepared for shipment. Some of the finished
gloves are packed in the finishing room and sent directly to the
shipping room from which they are shipped directly upon order.
The cut leather for shipment is usually shipped out as fast as it is
sent to the shipping room, the only delay usually being for the pur-
pose of making up a bale or case for shipment.
Most of the respondent's finished products are sold and shipped to
its branch sales offices and customers throughout the United States.
Large quantities of incomplete and partially manufactured and fabri-
cated gloves 'and mittens are shipped by rail and trucks to the other
plants of the respondent in States other than the State of Illinois
to be further manufactured, fabricated, and finished. The products
of the respondent are sold under a trademark which is registered
by the respondent in the United States Patent Office, for use in in-
terstate commerce.,' The respondent advertises in trade magazines
and by direct mail.
H. THE UNION
International Glove Workers' Union of America, Local No. 85,
affiliated with the American Federation of Labor, is a labor organiza-
tion which admits to membership any person, not an employer,
superintendent, foreman, or forewoman, who is actually engaged
in the occupation of making gloves or mittens. International Glove
Workers' Union of America has approximately 17,000 members and
has signed collective bargaining agreements with 374 factories
located in Fulton County, New York, New York, all the glove fac-
tories located in New York City, and a number of factories in
Wisconsin and Minnesota.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
On February 22, 1935, the employees in the leather cutting de-
partment of the respondent organized an independent organization
for the purpose of dealing with the respondent concerning grievances
against the foremen in the leather cutting department, better work-
ing conditions, and the abolition of the Bedeaux system of wage
payments.6 Active in the work of the independent organization were
6 Board's Exhibit No. 9.
.The Bedeaux system is a rather complicated wage payment plan, which reduces all fac-
tory work to a common denominator by setting a standard amount of required production
per minute for every sort of job . The standard is spoken of as 60 points or "B's" per
hour. For reaching it, workers are given a moderate bonus, and for exceeding it, they
receive 75 per cent of the saving , the remaining 25 per cent going to foremen , indirect
labor, and management.
DECISIONS AND ORDERS 405
Marion McCullough, Ernest Green, and Roy Kerr, all employees of
the 'respondent, who constituted the negotiating committee which
conferred about working conditions with the officers of the respondent
at various times.
On about April 17, 1935, James E. Taylor, general organizer of
the International Glove Workers' Union, after addressing a meeting
of the, independent organization, succeeded in inducing its members
to affiliate with the International Glove Workers' Union of America.
The Union received its charter on about May 8, 1935.
The respondent was cognizant from the first of activities of the
Union in its factory. On about May 31, 1935, John Jones, a fore-
man, and William Paul, an assistant foreman, approached Camille
Tremont, Ernest Paul, James Johnson, and Joe Mahalick, glove
cutters of the respondent, with the proposal that one or more of them
attend meetings of the Union to ."go to bat for the company", inti-
mating that "the boys would be taken care of." During the course
of the conversation Jones remarked that he had a talk that morning
with Charles W. White, superintendent of the plant, who was dis-
turbed over the fact that with 80• cutters working for them, they
could not get a union man "to go to bat for them" at the union meet-
ing. A heated argument followed. Jones suggested that Mahalick
should "go to bat for them". Ernest Paul, brother of the assistant
foreman, spoke up and said : "You had better not send Mahalick, as
the boys do not like him . . . He does not belong ... is not a mem-
ber of the Union . . . and you know that." -Thereupon, Ernest Paul
suggested that Tremont go, but the latter declined.
On June 25, 1935, the morning after a union meeting, Jones ap-
proached Tremont again, pressing him to disclose the names of the
girls in the sewing department who. belonged to the Union, which
Tremont refused to do. Later the same morning, William Paul, with
paper and pencil in his hand, reiterated Jones' request for the names,
but again Tremont refused. Thereupon Paul, again implored him
to think of some names, saying that he would return for them in a
short time. About 9 a. m. that morning Mary,7 one of Tremont's
stackers, told him that Jones had found out who the girls were, but
did not state the source of her information.
On the evenings of July 8 and 9, 1935, the Union held meetings.
Prior to each of these meetings Jones approached Tremont. and asked
him if he was going to attend them. Upon receiving a negative reply
and no information from Tremont in answer to his inquiries, Jones
said : "Why don't you go up?" Tremont replied : "No, I am too
busy, I cannot get up." After a private conference with Roy Kerr,
another employee, on July 9, 1935, shortly before the union meeting,
7 The record does not disclose Mary's full name.
49446-38-vol. in-27
406 NATIONAL LABOR RELATIONS BOARD
Jones came back to Tremont saying : "Well, the boys took a strike
vote last night." Thereupon Tremont queried: "They did?" Jones
continued : "Yes, it looks pretty bad . . . They are going to make
a mistake . . . You know, that is an awful thing. You know, I had
a brother that was in a strike down here at Wallworth's, and he never
could get a job again, and he had to move all the way to California.
There are some more around town that could not get any jobs in
these factories."
Tremont testified that prior to July 9, 1935, Jones, after every
union meeting, would ply him with questions about what was said
at the meeting, but met with no success.
B. The discharges
Marion McCullough was employed by the respondent as a leather
cutter for about 10 years prior to July 5, 1935, except for an absence
of one month in 1929, and of one year during 1932-33 when he went
to Pennsylvania to take care of his sick uncle. On about March 4,
1935, McCullough, having become a member of the negotiating com-
mittee of the independent organization, an organization of workers
in the respondent's factory, participated in a conference with the
respondent's representatives about rates of pay and conditions of
employment. He was very active in soliciting members and organiz-
ing the Union, of which he was the first vice president. He served
on the negotiating committee and conferred with the respondent's
representatives several times. The respondent also knew of his other
union activities, having received its information from two unfaithful
union members.
It is significant to note that prior to his first conference with the
respondent's representatives, McCullough was given the best grades
of gloves to work on, but thereafter was tendered a poorer grade.
Furthermore, Jones, his foreman, began to scrutinize his work more
carefully after the conference than before.
On June 28, 1935, there was a general lay-off of employees, and
on the following pay-day, July 5, 1935, McCullough went to the fac-
tory to get his pay for the week prior to the lay-off, it being the re-
spondent's custom to pay its employees one week after the week in
which the pay is earned. Accompanying the pay check was a slip
instructing McCullough to report to his foreman. William Paul,.
assistant foreman, notified him that his services were no longer re-
quired. When McCullough inquired as to the reason, Paul told him
that the number of employees would be reduced when the plant
reopened.
On the following day, July 6, McCullough saw White, who had
been one of the respondent's representatives at the conference with
DECISIONS AND ORDERS 407
the negotiating committee on which McCullough had served. White
told him there was no fault with his work, repeating the foreman's
statement about the reduction of the force, and suggested that he look
for another position. When McCullough asked White if his mem-
bership in the Union had anything to do with his discharge, White
became very excited and said : "I don't want to hear anything about
that organization. Don't mention union to me because I am not
interested in it."
A few weeks later McCullough received a letter from the respond-
ent requesting the return of his group insurance policy and contain-
ing as a statement of the reasons for the return of the policy,
"indefinite lay-off." The Union had applied for McCullough's rein-
statement on July 9, 1935, and at various times thereafter. At the
date of the hearing he neither had been recalled to work nor had he
obtained any other regular or substantially equivalent employment.
McCullough's work as a glove cutter was of the highest grade. A
comparison of his work with that of his colleagues shows that his
was always above par. When a night shift was put on in April 1934,
the respondent picked the "cream of the crop", dependable and well
qualified workers, skilful enough to work without a foreman. Mc-
Cullough was in that select group. After a few months on the night
shift, McCullough grew tired of night work and asked to be trans-
ferred to day work. William Paul, who had then been transferred
to the night shift, pleaded with him, "stick it out with me at night.
. . . You have proved very dependable and we would like to have
you stay on here so it will make it that much easier for me."
After McCullough's discharge, no new outside help was hired
in the leather cutting department, but instead a lower and less skil-
ful grade of cutters, known as tip cutters, were promoted to be
glove cutters in the leather cutting department, and new men from
the outside were hired as tip cutters. Prior to this time it had
been the custom of the respondent, -when new glove cutters were
needed, to hire new men and break them in as glove cutters.
Jerry Barry was a leather cutter and had been employed by the
respondent from January 1927 to October, 1931, when he took a
voluntary lay-off to find a better paying position. He was recalled
to work for the respondent in August 1932, and worked as a leather
cutter up to June 28, 1935, with the exception of a few seasonal lay-
offs. He became an active member of the independent organization
in February 1935, and of the Union in May 1935. He was active in
soliciting members for the Union, participated as a member of the
negotiating committee in conferences with the respondent's officers,
and was particularly prominent at the meeting of May 20, 1935,
when he was called upon by Thomas Blair, the production manager
of the respondent, to summarize the employees' grievances.
408 NATIONAL LABOR RELATIONS BOARD
About June 20, 1935, Barry and White had some discussion about
conditions in the factory, in the course of which White said : "it
would be a good thing for the boys to decide what they expected
to do with reference to the things that did not satisfy them." To
which Barry replied: "I think the boys and girls were justified in
their action."
On June 28, the day of the closing of the-factory for the seasonal
lay-off, Barry was called to White's office and was informed that
Hayden Lysle, a clerk at the factory, had been checking his work 'for
the last 30 days and had found that his production had been below
par during that period. White further told him to look for work
elsewhere. Prior to this he had never been warned or criticised about
his work. It is important to note that the checking of Barry's work
had started on about May 20, the day Barry had appeared as a, mem-
ber of the negotiating committee to discuss working conditions 'with
White and others.
Disheartened and discouraged because of what White had told him,
Barry did not return to the plant on July 5, the next pay-day, but
sent one of 'his children to get his pay. Barry testified that about
eight to 10 days after June 28th, he received from the respondent a
written notice of the termination of his employment. Upon the
basis 'of this testimony we find that Jerry Barry was officially dis-
charged on about July 8, 1935.
As in the case of McCullough, upon the reopening of the plant,
a lower and less skilful grade of cutters, known as tip cutters, were
promoted to be glove cutters in the leather cutting department, work
in which Barry was more experienced, and new men, were hired as
tip cutters. It is unlikely that the work of a man employed by the
respondent as long as Barry had been, would fall off so' badly in a
30-day period to warrant his discharge and the substitution of a man
inexperienced in that type of work. The Union had applied for his
reinstatement on July 9, 1935, and at various times thereafter. At
the time of the hearing he neither had been recalled to work by the
respondent' nor had he obtained any other regular or substantially
equivalent employment.
Grace Bremmer was employed by the respondent as a leather sorter
for' two and one-half' years. During that period she had never been
laid-off except for seasonal lay-offs. Of the four girls employed at
leather sorting Grace Bremmer had worked there longest. She
joined the Union on May 31, 1935. On about June 15, 1935, Jones,
her foreman, asked her to disclose the names of the girls who were
attending the union meetings, but she refused. Thereupon, Jones
proceeded to ' tell her that unions would do her no good, that they
just took money from her, and related to her the incident of his
DECISIONS AND ORDERS 409
brother who had lost his job with another company because he had
joined a union. In this manner he attempted to persuade her to
refrain from union activities.
About July 8, 1935, Jones sent for Grace Bremmer and Anna
Scholes, another leather sorter and a member of the Union, and
informed them that all the leather sorters would be dismissed. Of
the other two leather sorters, one quit on June 28, but the other
was retained.
Anna Scholes, who was junior to Grace Bremmer in point of
service, was recalled to work when the factory reopened in Novem-
ber 1935. Grace Bremmer testified that Anna Scholes told her
that on July 9, 1935, the day after their discharge, she saw Jones,
who advised her that if she quit the Union, she could have her job
back when operations were resumed. Thereupon, Anna Scholes
ceased to be a member of the Union.
In January 1936, Ingebord Anderson was hired to work in the
sample department where Grace Bremmer worked before she be-
came a leather sorter. Miss Anderson was not an employee of the
respondent at the time of the June 28th lay-off, but had worked for
the respondent for a time five or six years prior to the lay-off.
Grace Bremmer, upon hearing of this, went to White and applied
for reinstatement. White told her that her name was still on the
books. Nevertheless, at the time of the hearing she had neither been
recalled to work nor had she obtained any other regular or substan-
tially equivalent employment.
Jess Harlan was employed by the respondent as a husker cutter
from April 1929 until 1931, when he was laid off for about a year.
He was recalled to work as a husker cutter for the respondent in
June 1932. In September 1932 he was employed as a sweeper in
the sewing room, and worked there until about six weeks before his
lay-off on June 28, 1935, when he was transferred to the leather
room as a sweeper. He was an active member and trustee both of
the independent organization and the Union, and served on different
committees. About a week after the lay-off of June 28th, Jones
called Harlan and told him that the factory force would be cut and
requested him to turn in his group insurance policy. Harlan re-
fused. On about July 20, 1936, he received an official statement in-
forming him that his employment was terminated and to send in
his group insurance policy, which he refused to do. The Union had
applied for his reinstatement several times after July 20, but at the
time of the hearing he had not been recalled to work.
It is material to point out that about six weeks prior to the lay-off
on June 28, Harlan was transferred from his position in the sewing
room to a position in the leather room, and Joe Boomeneck, a new
410 NATIONAL LABOR RELATIONS BOARD
man, was hired to take his job as a sweeper in the sewing room.
We are convinced that Harlan's transfer and the hiring of another
man to replace him in his position in the sewing room was made
in anticipation and preparation of his later discharge.
No evidence was offered to sustain the allegation with respect to
the refusal to reinstate Nick Dragolovich, and the evidence offered
regarding the discharge of Lee Brandy and Joe Dragolovich is in-
sufficient to warrant a finding that they were discharged or refused
reinstatement because of their union activities. The allegations of
the complaint with respect to Nick Dragolovich, Joe Dragolovich,
and Lee Brandy will therefore be dismissed.
We find that Marion McCullough, Jerry Barry, Jess Harlan, and
Grace Bremmer were discharged for union affiliation, activities and
associations and that by such discharges the respondent has dis-
criminated in regard to hire and tenure of employment and has
thereby discouraged membership in a labor organization.
We find that Marion McCullough, Jerry Barry, Grace Bremmer,
and Jess Harlan were employees of the respondent at the time of
their discharge, ceased work because of an unfair labor practice, and
at the time of the hearing had not obtained any other regular and
substantially equivalent employment.
C. The refusal to bargain collectively
1. The appropriate unit
The complaint alleges that the employees of the respondent in the
machine shop, sewing, receiving, stock, and shipping rooms, cloth
cutting, leather cutting, riveting, cuff, and finishing departments
constitute a unit appropriate for the purposes of collective bargain-
ing. The respondent does not assert that any other unit is the
proper one. All employees in the afore-mentioned departments,
excepting supervisory and clerical employees, are eligible to mem-
bership in the Union. They constitute a group engaged in the
actual production of gloves and mittens and are regarded by them-
selves as a distinct unit. The activities of the workers in these de-
partments consist of receiving of raw material, leather staking,
sorting, weighing, cloth and leather cutting, riveting, sewing, finish-
ing, labeling, checking, packing, and shipping.
A unit composed of the employees in machine shop, sewing, re-
ceiving, stock, shipping, cloth cutting, leather cutting, riveting, cuff,
and finishing departments, hereinafter called the production em-
ployees, excepting supervisory and clerical employees, would insure
to the employees the full benefit of their right to self-organization
and to collective bargaining, and otherwise effectuate the policies of
DECISIONS AND ORDERS 411
the Act, and constitute a unit which is appropriate for the purposes
of collective bargaining with respect to rates of pay, wages, hours
of employment, and other conditions of employment.
2. Representation by the Union of the majority in the appropriate
unit
Taylor, general organizer of the International Glove Workers'
Union, testified that T. R. Stokes, president of the respondent, told
him that there were approximately 382 production employees em-
ployed by the respondent during the latter part of May 1935. Orval
Hedburg, financial secretary and treasurer of the Union and an
employee of the respondent for the last 17 years, testified that the
respondent employed about 382 production employees just before
the lay-off on June 28. According to the financial secretary's rec-
ords, which were produced at the hearing, 202 of the respondent's
production employees were members of the Union on August 8, 1935.
The number of union members increased to 269 on November 15,
1935, shortly after the settlement of the strike and the reopening
of the plant, which will be discussed below.
We therefore find that on August 8, 1935, and at all times there-
after, the Union was the duly designated representative of the ma-
jority of the employees in the appropriate unit, and, pursuant to
Section 9 (a) of the Act, was the exclusive representative of all the
employees in such unit for purposes of collective bargaining in re-
spect to rates of pay, wages, hours of employment, or other conditions
of employment.
3. The refusal to bargain
On July 9, 1935, a committee of the Union and Taylor, general
organizer of the International Glove Workers' Union, sought a con-
ference with Stokes, the respondent's president, but were referred
to White, superintendent of the respondent's Kewanee plant, who
met them together with other officials of the respondent. The com-
mittee claiming to be the chosen representative of the workers em-
ployed at the respondent's Kewanee plant, requested the reinstate-
ment of the discharged employees, the elimination of the Bedeaux
System, and presented a proposed agreement relating to conditions
of employment. The respondent's representatives were not disposed
to discuss the discharges and reinstatement of the employees named
in the complaint. They stated that the respondent knew more about
who was or was not qualified to work for the Company and that it
was the Company's choice to employ whomever it wished. How-
ever, White agreed to present the agreement to the higher officers
of the respondent and promised a reply on July 13. On that day
412 NATIONAL LABOR RELATIONS BOARD
the committee called for a reply, was told that the respondent would
not sign an agreement , and received the following statement from
White :
Under our interpretation of the Wagner Labor Bill we ques-
tion our legal right or obligation to sign any written contracts or
agreements of this kind , Bence are returning it to you without
signature or any action on our part in respect to its provisions.8
On July 13, 1935, Taylor sent a letter to Stokes stating that the
Union construed the action of the respondent as a refusal to negotiate
conditions of employment with the representatives of its employees.9
A course of correspondence followed , the essence of which was
that the respondent , while questioning the Union 's representation
of a majority of the respondent's employees , was unwilling to nego-
tiate with the Union as the exclusive representative of its employees,
even if the Union did represent a majority.19
Because of the respondent 's refusal to bargain - with the Union
and its refusal to reinstate the employees discriminatorily discharged,
a strike was called at the Kewanee plant on August 5, 1935, com-
mencing on August 8, and lasted until October 16 , 1935. As stated
above, by August 8, 1935 , 202 out of 382 production employees had
become members of the Union, and had designated the Union as
their representative for purposes of collective bargaining.
On September 8, 1935, at a meeting between the strikers' com-
mittee of the Union and the respondent 's representatives , at which
was present Harry Scheck , a conciliator of the United States De-
partment of Labor, Stokes claimed that the Union could not bargain
for all the employees because it was unfair to the employees who
were not members of the Union . He further stated that the respond-
ent would bargain with the Union as to its members, but would
refuse to bargain with the Union as the exclusive representative of
all the production employees . During this conference Stokes neither
challenged nor denied that the Union represented a majority of the
production employees.
At a meeting on September 24, 1935, at which Taylor and David R.
Clarke, the respondent 's attorney , were present , the questions pre-
sented were : the representation of all the workers by the Union,
the Bedeaux System, the alleged rudeness and unfairness of super-
visors John Jones and Clara Weiner to employees , the reinstatement
of the discharged employees , and other matters presented in the
agreement of July 9, which had been rejected . The respondent,
through its attorney , agreed to consider the grievances against the
8 Board 's Exhibit No. 25
9 Board's Exhibit No 24.
19I3oard ' s Exhibits Nos. 24-9, inclusive.
DECISIONS AND ORDERS 413
supervisors, and the Bedeaux System, but refused to recognize the
Union as the sole and exclusive bargaining agency for all its pro-
duction employees and refused to discuss the reinstatement of the
discharged employees.
On October 4, 1935, there was a conference between the strikers'
committee and the respondent's representatives at which Taylor and
Scheck were present. Stokes reiterated the respondent's refusal to
bargain with the Union as exclusive representative of all its produc-
tion employees, and presented a written "Statement of Policy" 11
stating in part :
The Company will meet with any employee, any group of
employees, or the freely chosen representatives of any group of
employees for the purpose of receiving any complaints, griev-
ances, suggestions, or requests that may be presented concerning
working conditions, and will give careful and sympathetic con-
sideration to any such.
However, this statement had been preceded by a letter of the
respondent to all its employees dated September 28, 1935, in which
the respondent had said, "Our Company will not recognize, deal
with, or contract with the Union as the agent of all employees in
our plant." 12
When the "Statement of Policy" was presented to the Union at
a meeting on October 4, 1935, the Union sent a letter to the respond-
ent stating, "while the `Statement of Policy' is acceptable to the
membership in certain details, it does not present the opportunity
for collective bargaining to which we feel we are entitled by law,"
and invited further discussion with the respondent.- To this the
respondent replied on October 7, 1935, stating that the "Declaration
of policy covers fully the matter of collective bargaining", and
declining a further meeting on that subject.14 On October 15, 1935,
a conference was held at the office of the Governor of Illinois at
Springfield at which were, present the Governor, the Mayor and
Police Commissioner of Kewanee, the State's Attorney of Henry
County, the Adjutant General, other public officials, and represent-
atives of the Union, of the respondent, and of nonunion employees.
At this conference the respondent reiterated its refusal to recognize
the Union as the sole bargaining agency, but expressed a willing-
ness to deal with the Union as the representative of its members.
As a result of this meeting the respondent agreed to reinstate all its
employees, including the strikers and those discharged, without dis-
ii Board's Exhibit No. 15.
i' Board's Exhibit No. 31.
i8 Board's Exhibit No 35.
14 Board ' s Exhibit No. 36.
414 NATIONAL LABOR RELATIONS BOARD
crimination as soon as there was enough work for all of them, to
discipline supervisors Jones and Weiner, to change the Bedeaux
System so that it would be acceptable to the employees, and to submit
the question of the sole bargaining agency to the National Labor
Relations Board. It was agreed that the "Statement of Policy" was
to be accepted in lieu of a written agreement until the Board should
determine the exclusive representative. Upon the presentation of
this verbal agreement, the Union called off the strike on October 16,
1935, and the respondent's employees started to return to work on
or about October 23, 1935.
On November 8 and 29, 1935, on December 18, 1935, and on Janu-
ary 28, 1936, the strikers' committee requested the respondent's
officers to reinstate the discharged employees and to modify the
Bedeaux System. On all these occasions the respondent, ignoring its
agreement of October 15 to reinstate the discharged employees,
refused to discuss their reinstatement, declaring that it was a matter
for the management alone to determine. At the November 8th con-
ference the strikers' committee charged the respondent with dis-
crimination, and inquired why an inexperienced man who had not
worked for the respondent before, had been hired in the husker
department when experienced help was available. Stokes asked
White, "Mr. White, do you know anything about it?" White replied,
"Yes, we hired that gentleman after much discussion on it, and we
decided it might be discriminating. That fellow's pay check is
waiting for him." The union representatives tried to point out to
the respondent the wrong it committed, but the respondent claimed
that this was a management proposition and that they knew more
about it than the employees.
On April 28, 1936, the respondent sent a letter addressed to all
its employees, reiterating its refusal to deal with the Union as the
exclusive representative of its employee.15
It is clear that the respondent, through its officers, persistently
refused to recognize and to bargain with the Union as the exclusive
representatives of its employees. We find, therefore, that on Septem-
ber 8, 1935, and at all tines thereafter, the respondent refused to
bargain collectively with the Union as the representative of its em-
ployees in respect to rates of pay, wages, hours of employment and
other conditions of employment.
We find that the respondent, by the acts above set forth, has inter-
fered with, restrained, and coerced its employees in the exercise of
the right to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of
"Board's Exhibit No. 33.
DECISIONS AND ORDERS 415
collective bargaining and other mutual aid and protection as guar-
anteed in Section 7 of the Act.
IV. THE EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE
From April 1 to June 30, 1935, there were shipped over the
Burlington Railroad to the respondent's plant from points outside
the State of Illinois, 115 shipments totalling 397,731 pounds, and
from July 1 to October 31, 1935, 38 shipments totalling 34,460
pounds. From April 1 to June 30, 1935, the outbound shipments
over that railroad from the respondent's Kewanee plant were 281
in number, totalling 358,603 pounds, while from July 1 to October
31, 1935, the outbound shipments were 213 in number, totalling but
76,938 pounds.
The respondent received from points outside Illinois, by means
of the Burlington Transportation Company, a carrier by motor
truck, from April 1 to June 30, 1935, 32 shipments totalling 16,365
pounds, and from July 1 to October 1, 1935, 15 shipments totalling
7,448 pounds.
The outbound shipments from the respondent's Kewanee plant to
points outside the State of Illinois from April 1 to June 30, 1935,
were 206 in number, and 111,494 pounds, and from July 1 to October
31, 1935, were 118 in number and 57,253 pounds.
The falling off in interstate shipments during the months of the
strike indicates the restraint upon the flow of raw materials and
manufactured and processed goods from and into the channels of
commerce caused by the respondent's unfair labor practices.
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
substantial relation to trade, traffic, and commerce among the several
States, and have led and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
THE REMEDY
We will order that Grace Bremmer, Marion McCullough, Jerry
Barry, and Jess Harlan be offered reinstatement to their former
positions. Grace Bremmer, Marion McCullough, and Jerry Barry
are entitled to back pay from the date of their discharge until the
respondent offers to reinstate them, less any amounts earned by
them in the meantime. In view of the Trial Examiner's failure to
find in his Intermediate Report that Jess Harlan was discharged
because of union activities, the respondent could not have been
expected to reinstate Jess Harlan after it received the Intermediate
Report (June 22, 1936) and therefore it should not be required to
416 NATIONAL LABOR RELATIONS BOARD
pay back pay from that time to the date of this decision. However,
the respondent will be required to pay back pay to Jess Harlan
from July 20, 1935, the date of his discharge, to June 22, 1936, and
from the date of this decision to the time of such offer of reinstate-
ment, less any amounts earned by him during such periods.16
We have found that the respondent's production workers struck
on August 8, 1935, owing to the respondent's refusal to bargain col-
lectively with its employees and its refusal to reinstate the employees
discriminatorily discharged. Since the strikers ceased work as a
consequence of, and in connection with a current labor dispute, and
because of the respondent's unfair labor practices, those strikers who
have not obtained any other regular or substantially equivalent
employment have been since August 8, 1935, and still were "em-
ployees" of the respondent within the meaning of Section 2, sub-
division (3) of the Act when the strike was settled. However, when
the plant reopened on October 23, 1935, the respondent employed a
number of individuals who were not so employed at the time of the
strike on August 8, 1935. The respondent is under a duty to rein-
state the strikers to their former positions and to restore the status
quo which existed prior to its commission of the unlawful acts.
Therefore, we shall order the respondent to offer to those employees
who were on strike on August 8, 1935, and who have not obtained
regular and substantially equivalent employment elsewhere, immedi-
ate and full reinstatement to their former positions, without prej-
udice to their seniority and other rights or privileges; and place
those for whom work is not available on a preferred list to be offered
employment as it arises on the basis of seniority' by classifications
before any other persons are hired. Our order will also provide that
employees whose application for reinstatement is refused by the
respondent in violation of this order herein shall be entitled to back
pay accruing from the date of the refusal of the application to the
date of reinstatement, less any amount earned during that period.17
CONCLcsIONs OF LAW
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding, the Board finds and concludes as a
matter of law :
1. International Glove Workers' Union of America, Local No. 85,
is a labor organization, within the meaning of Section 2, subdivision
(5) of the Act.
"Matter of E R. Haffelfin ,ger Company, Inc, and United Wallpaper Crafts of North
America, Local No 6, 1 N L R B . 760; Matter of Mann Edge Tool Company and Federal
Labor Union No. 187'79, 1 N . L R B 977
17 Matter of Oreqon Worsted Company and United Textile Workers of America, Local
1435, Case No C-167, decided July 16, 1937, ( supra, p 36).
'DECISIONS AND ORDERS 417
2. The strike of the employees was a labor dispute, within the
meaning of Section 2, subdivision (9) of the Act.
3. Marion McCullough, Jerry Barry, Grace Bremmer, Jess Harlan
and those who struck on August 8, 1935, are employees of the
respondent, within the meaning of Section 2, subdivision (3) of the
Act.
4. The respondent, by discriminating in regard to the hire and
tenure of employment of Marion McCullough, Grace Bremmer,' Jess
Harlan, and Jerry Barry, and each of them, and thereby discourag-
ing membership in a labor organization, has engaged in and is en-
gaging in unfair' labor practices, within the meaning of Section 8,
subdivision (3) of the Act.
5. All the production employees of the respondent, excepting
supervisory and clerical employees, constitute a unit appropriate for
the purposes of collective bargaining, within the meaning of Section
9 (b) of the Act.
6. By virtue of Section 9 (a) of the Act, International Glove
Workers' Union of America, Local No. 85, having been selected as
their representative by a majority of the employees in an appropriate
unit, was on August 8 and at all times thereafter has been, the ex-
clusive representative of all the employees in such unit for the
purposes of collective bargaining.
7. The respondent, by refusing to bargain collectively with the
representatives of its employees on September 8, 1935, and there-
after, has engaged in, and is engaging in unfair labor practices,
within the meaning of Section 8, subdivision (5) of the Act.
8. 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, subdivision (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions
(6) and (7) of the Act.
ORDER
Upon the basis of the findings of fact and conclusions of law and
pursuant to Section. 10, subdivision (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, The Boss Manufacturing Company, and its officers,
agents, successors, and assigns shall:
1. Cease and desist from 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 con-
418 NATIONAL LABOR RELATIONS BOARD
certed activities for the purpose of collective bargaining or other
mutual aid and protection, as guaranteed in Section 7 of the Act;
2. Cease ' and desist from refusing to bargain collectively with
International Glove Workers' Union of America, Local No. 85, as
the exclusive representative of all its production employees, except-
ing supervisory and clerical employees;
3. Cease and desist from discouraging membership in Glove
Workers' Union of America, Local No. 85, or any other labor organi-
zation of its employees, by discharging and refusing to reinstate
employees, or otherwise discriminating in regard to hire and tenure
of employment or any term or condition of employment, or by threats
of such discrimination.
4. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
a. Offer to Grace Bremmer, Jerry Barry, Marion McCullough, and
Jess Harlan immediate and full reinstatement, respectively, to their
former positions without prejudice to their seniority, or other rights
and privileges ;
b. Upon application, offer to those employees who were on strike
on August 8, 1935, and who have not obtained regular and substan-
tially equivalent employment elsewhere, immediate and full rein-
statement to their former positions, without prejudice to their senior-
ity or other rights or privileges; and place those for whom employ-
ment is not available on a preferred list to be offered employment
as it arises on the basis of seniority by classifications before any
other persons are hired;
c. Make whole all employees who were on strike on August 8, 1935,
for any losses they may suffer by reason of any refusal of their appli-
cation for reinstatement in accordance with paragraph 4b herein, by
payment to each of them, respectively, of a sum equal to that which
each of them would normally have earned as wages during the period
from the date of any such refusal of their application to the date of
reinstatement, less the amount, if any, which each, respectively, earned
during said period;
d. Make whole Grace Bremmer, Marion McCullough, and Jerry
Barry for any loss of pay they have suffered by reason of their dis-
charge by payment to each of them, respectively, of a sum of money
equal to that which each of them, respectively, would normally have
earned as wages from the date of their discharge to the date of the
offer of reinstatement pursuant to this order, less any amount earned
by each of them, respectively, during such period;
e. Make whole Jess Harlan for any loss of pay he has suffered by
reason of his discharge, by payment to him of a sum of money equal
to that which he would normally have earned as wages during the
DECISIONS AND ORDERS 419
periods from July 20, 1935, the date of his discharge, to June 22, 1936,
and from the date of this decision to the time of such offer of rein-
statement, less any amount he has earned during such period;
f. Upon request, bargain collectively with International Glove
Workers' Union of America, Local No. 85, as the exclusive represent-
ative of all its production employees, excepting supervisory and cleri-
cal employees, for the purpose of collective bargaining in respect
to rates of pay, wages, hours of employment and other conditions of
employment;
g. Post notices at a conspicuous place on each floor of the respond-
ent's Kewanee plant stating: (1) that the respondent will cease and
desist in the manner aforesaid; and (2) that said notices will remain
posted for at least thirty (30) consecutive days from the date of
posting;
h. Notify the Regional Director for the Thirteenth Region in writ-
ing within ten (10) days from the date of this order what steps the
respondent has taken to comply herewith.