Clinton Woolen Manufacturing Co.

In the Matter Of CLINTON WOOLEN MANUFACTURING COMPANY and TExTILE WORKERS UNION OF AMERICA, AFFILIATED WITH THE C. I. O. Case No. )C-2/{79.Decided April 13,1943 DECISION AND ORDER On December 31, 1942, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices-and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. Thereafter the respondent and the Independent each filed exceptions to the Intermediate Report and a brief in support of its exceptions. The TWUA has filed no exceptions to the findings and recommendations of the Trial Examiner. During the hearing the Trial Examiner made several rulings upon motions and upon objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no preju- dicial error was committed. The rulings are hereby affirmed. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board on March 2, 1943, at Washington,, D. C. The respondent, the TWUA, and the Independent were represented by counsel and presented argument. The Board has considered the Intermediate Report, the exceptions and briefs of the respondent and the Independent, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations made by the Trial Examiner, with the following exceptions, qualifications, and additions: 1. The Trial Examiner found, and we agree, that the presence of White and Kimball at the TWUA organizational meeting of September 7 and White's advocacy at that meeting of the formation of an "inside" union operated as a restraint upon the employees' freedom of choice of a bargaining representative. The respondent excepted to this find- ing on the ground that White's supervisory authority Was so minor that employees at the meeting could not hive regarded White as the spokesman of the respondent. We find no merit in this contention.' The respondent conceded that White was a -"supervisor in the spinning 49 N. L. R. B, No. 4. 11 12 DECISIONS OF, NATIIONAL LABOR RELATIONS BOARD room." When White spoke at the meeting in question, asserting that the employees did not need an outside organization and implying that they could win more concessions from the respondent if they formed an unaffiliated union, he openly identified himself as a foreman at the respond'ent's plant. This took-place in the presence of Kimball,- the resporideiit's secretary'treasurer, whose attendance at the ineetiing. Was wholly unexplained by the respondent.' Kimball made no effort to repudiate for the respondent White's statements of preference for an inside union, or to contradict White's claim that he was one of the respondent's foremen . Under the circumstances, we are satisfied that the employees who attended the TWUA meeting in question had "just cause to believe" 2 that White represented the respondent in advocating the formation of a company union in preference to joining an affiliated organization ; and we find that the respondent is responsible for White's conduct on this occasion. We agree with the Trial Examiner that the respondent thereby' materially supported the Independent, which was at that time in its critical formative p'eriod.3 We further find that by the conduct of White and Kimball at the TWUA meeting 'on September-7-the -respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. The Trial Examiner found that on November 21, 1941, the re- spondent discriminatorily discharged Anna Pratt and thereafter re- fused to reinstate her. In so finding, the Trial Examiner relied sub- stantially upon his conclusions that Pratt was not responsible for the' interruption of production caused by the run-out of'two machines on November 18, and that the finisher-tender and foreman shared with Pratt the responsibility for the poor work identified in the spinning room on November 21 as the product,of Pratt's machine No. 1. We are unable to agree with either of these conclusions. Pratt admitted the two run-outs on November 18, 1941, attributing her inattention to the machines-to her other regular ditties and to the fact that during the course of the evening there was a failure in the supply of wool in the chutes from which she fed these two machines. The respondent contends, however, and Pratt conceded, that she had no responsibility to keep up the supply of wool in the chutes, but that it was her princi- i The respondent had instructed its foremen _ and salaried supervisory employees not Jo attend the organizational meeting of the TWIIA. s See N. L R. B v Lank-Belt Co, 311 U. S. 584. 3 Like the Trial Examiner , we do not credit the vague and generally unsupported testimony of Mahrle to the effect that , during the period of a week or more prior to the September 7 meeting, petitions whereby the signers expressed a desire to form an inde- pendent union had been widely circulated among the respondent 's employees and signed by a majority of them. Even if we credited the testimony that a majority of the respond- ent's employees had signed the petition before the September 7 meeting , it would not alter our conclusion that the conduct of White and Kimball , above described , furnished substantial impetus to the formation of the Independent , which at best bias an inchoate organization until September 9, 1941. CLINTON WOLOLLEN MANUFACTURING COMPANY -13 pal responsibility, as feeder-tender, to shut down any machine assigned to her charge if for any reason the supply Of wool in the feeder was reduced to a level below that required for the safe operation of her machine. This she admittedly did not do. The poor -work discovered on November 21, which the respondent contends precipitated her dis- charge, was not detected until it reached the spinning room, where-it caused interruption of production and spoilage. Although the finisher- tender has some opportunity to observe the fineness of the thread and, if the presence of thin thread becomes known to her, a duty to warn the feeder-tender or shut off the machine, the record is clear that the fine- ness of thread in the absence of complete run-out, is not easily detect- able by.-sight alone and that the constant attention and appraisal of the fineness of the thread on each machine does not constitute-an essential part of the finisher-tender's duties. The foreman's many duties in the department preclude his constant attention to the thread on any one machine. Thus, it is clear that Pratt alone was responsible for the poor work discovered on November 21. Pratt's foreman testified that she had been frequently reprimanded for low feeding on her machines.' This she did not deny.. The respondent had recognized low feeding as one cause for conspicuous, failing in its production standards. In the fall of 1941 it took steps to identify, employees responsible for this and other kinds of poor work and to eliminate these defects. Upon the basis of the whole record,'we conclude that the faulty work discovered on November 21 and traced to machine No. 1 was reasonably attributed to Pratt's careless performance of her duties after adequate warning.' Under these circumstances, although the case is not free from doubt, we conclude and. find that the respondent did not discharge Anna Pratt because of her participation in the organizational activity of the TWUA and her continued preference for that organization. ,We will therefore dismiss the complaint insofar as it alleges that the re- spondent discriminated against Anna Pratt. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Clinton Woolen Manufac- turing Company, Clinton, Michigan, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : - (a) Dominating or interfering with the administration of Clinton Woolen Workers, or with the-formation or administration of any other labor organization, and from contributing financial or other support to said labor organization or to any other labor organization; (b) Recognizing Clinton Woolen Workers as the representative of any of its employees for the purposes of dealing with the respondent 14 DECISIONS 'OF' NATIONAL LABOR RELATIONS, BOARD concerning grievances, labor disputes, wages; rates of pay, hours of em- ployment, or other conditions of employment; (c) Giving effect to the contract of September 16, 1941, or to the contract of August 12, 1942, with Clinton Woolen Workers, or to any modification, extension, supplement, or renewal thereof, or to any superseding contract with said labor organization which may now be in, force; , , . , ' , . - ' (d) Discouraging membership in Textile' Workers Union of `Amer-, ica, affiliated with the Congress of Industrial Organizations, or any other labor 'organization of its employees, by discharging any of'its employees or in any other manner discriminating in regard to their hire and tenure of employment, or any term or condition of their employment;. (e) In any other manner interfering tivith, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations; to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activ- ities for the purpose of collective bargaining or other mutual aid or protection.as guaranteed';in' Section 7 of the Act. - -- 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from and completely disestablish Clinton Woolen Workers as the representative of any of its employees for the purpose of dealing with-the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other con- ditions of employment; - (b) Offer to Robert Pratt, August J. Feldkamp, Robert M. Crosby, Auneta A. Walton, and Max J. Jedele immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; (c) Make whole Robert Pratt, August J. Feldkamp, Robert M. Crosby, Auneta A. Walton, and Max J. Jedele for any losses of pay they may have suffered by reason of their respective discharges by the pay- ment to each of them of a sum of money equal to that which he or she normally would have earned as wages during'the periods from the respective date of the, discharge to the date of the offer of reinstate- 'ment by the respondent, less his or'her net earnings during such period; (d) Make whole Robert W. Walton for, any loss of pay he may have suffered by reason of his-discharge by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from the date of his discharge to the date subsequent to his discharge when he was first employed in the position which he held at the time of the hearing in this proceeding, less his net earnings during such period; ` CLINTON WOOLEN" MANUFACTURING COMPANY 15 (e), Upon application by Junior J. Feldkamp within forty (40) days after his discharge from the armed forces of the United States, offer him immediate and full reinstatement to his former or a substan- tially equivalent position, without prejudice to his seniority and other rights and privileges; - (f) Make whole Junior J. Feldkamp for any loss of pay he may have suffered by reason of his discriminatory discharge, by payment to him of a sum of money equal to the amount he would normally have earned as wages during the periods:, (1) between the date of Junior J. Feldkamp's discharge and the date of his induction into the armed forces; and (2) between a date five (5) days after Junior J. Feld- kamp's timely4 application for reinstatement and the date of the offer of reinstatement by the respondent, less his net earnings during those periods; ' (g) Reimburse each of its employees who were members of Clinton Woolen Workers for all the dues, if any, which it has deducted from his or her wages on behalf of Clinton Woolen Workers; (h) Post immediately in conspicuous places in its Clinton, Michi- gan, plant, and maintain for a period of at least sixty (60) consecutive days from the, date -of posting, notices to its employees stating : (1) that the respondent will not engage in the conduct from which it is ordered to ,cease and desist in paragraphs 1 (a), (b), (c), (d), and (e) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), (e), (f), and (g) of this Order; and (3) that the respondent's employees are free to become or remain -members of Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, or any other labor organization of their own choice and that the respondent will not discriminate `against any employee because of membership or activity in said labor organization; (i) Notify the'Regional Director for the Seventh Region in writing within ten (10) days from the date of the receipt of this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the respondent has engaged in unfair labor practices by discriminating in regard to the hire and tenure of employment or terms or conditions of employment of Anna Pratt on November 21. 1941. INTERMEDIATE REPORT Mr. C. Thomas Downs, for the Board. Mr. James H. Spencer and Mr. Renville TVheat, of Dykema,, Jones & Wheat, 2746 Penobscot Building, Detroit, Michigan, for Clinton Woolen Manufacturing Company. , A As provided in paragraph 2 (e) of this Order. 16 DECISIONS OF NiATIUIN,AL LABOR RELATIONS BOARD Mr. August W. Baler, 611. Huron, Street, ;Toledo, Ohio, for Textile Workers Union of America. Mr. L. B. Kuney, Adrian, Michigan, for Clinton Woolen Workers. STATEMENT OF THE CASE Upon a third amended charge, duly filed on October 23, 1942, by Textile Workers Union of America, affiliated with the C. I. 0., herein called the TWUA, the National Labor Relations Board, here! n-called,the Board, by the Regional Director for the Seventh-Region (Detroit, Michigan), issued-its complaint dated November 10, 1942, against Clinton Woolen Manufacturing Company, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent, the TWUA,.and Clinton Woolen Workers, herein called the Independent. In respect to the unfair labor practices, the complaint alleged in substance that the respondent (1) dominated and interfered with the formation and adminis- tration of the Independent; (2) discharged eight named employees because of their membership in and activities in behalf of the TWUA; (3) by these and other acts and conduct interfered with, coerced, and restrained its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent in its answer to the Board's complaint, filed on November 21, 1942, with the Regional Office of the Board, denied that it had engaged in any of the alleged unfair labor practices It admitted that it recognized the Inde- pendent as bargaining representative of,its employees and executed a contract with it, and that, pursuant to the terms of the aforesaid contract, it terminated the employment of seven of the employees named in the complaint ; it asserted, however, that at the time it granted recognition to the Independent and executed a contract with it, the Independent represented a majority of its employees- Pursuant to notice, a hearing was held on November 30, and December 1, 2, 3, and 4, 1942, at Clinton, Michigan, before the undersigned, the Trial Examiner duly designated by the Acting Chief Trial Examiner. All parties were repre- sented and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the opening of the hearing, the Independent filed a petition to intervene, which was granted. In its petition it denied that the Independent was dominated' by the respondent or that the respondent had contributed financial or other sup- port to it. Near the conclusion of the hearing, the parties were afforded an opportunity to argue orally before, and to file briefs-with, 'the undersigned. All parties were thereafter represented in oral argument before the undersigned, and all parties waived the filing of briefs with the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes, in addition to the above, the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Clinton Woolen Manufacturing Company, is a Michigan cor- poration, having its principal office and place of business in Clinton, Michigan. It is engaged in the manufacture of woolen cloth approximately 95 percent of CLINTON WOOLEN MANUFACTURING COMPANY 17 which is manufactured for the United States Navy. During the^peiiod,-froni September 1, 1941, through March 1, 1942, it purchased commodities, goods, and raw materials for use in manufacture in excess of $300,000 in value, of which approximately 75 percent was shipped to its plant from places outside the State of Michigan. During the same period, it sold finished and partly finished products in excess of $600,000 in value, approximately 90 percent of which was shipped to places outside the State of Michigan. It employs approximately 230 persons. The respondent admits that it is engaged in commerce within the meaning of the Act.' II. THE ORGANIZATIONS INVOLVED Textile Workers Union of America is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the respondent. Clinton Woolen Workers is an unaffiliated labor organization admitting to membership employees of the respondent. III THE UNFAIR LABOR PRACTICES A Chronology of events Although the business of the respondent was established in 1866, there is no evidence of organizational activity among its employees prior to September 1941. On September 7, 1941, the TWUA held its first organizational meeting for employees of the respondent, at the local high school building in Clinton, Michigan, a town of some 1200 inhabitants. This meeting was advertised by the distribution of handbills on September 6, at the gates of the respondent's plant, and was attended by approximately 100 persons, most of whom were employees of the respondent. Among those attending were C L. Kimball, the respondent's secretary-treasurer, and John Dudley White, a supervisory em- ployee of the respondent? The meeting was advertised as an organizational meeting for employees of the respondent, but no check was made to ascertain whether those attending were employees and no one was excluded from the meeting. The meeting of September 7 was presided over by August W. Bahr, TWUA representative, who had come to Clinton for the purpose of organizing the re- spondent's employees. During a question and answer period which-followed ' These findings are based on a stipulation entered into by counsel for the Board and counsel for the respondent, and a stipulation of the parties. 2 White was a machine "fixer" in the dressing and spooling department, under Foreman Hartley Simpson, and was paid on an hourly wage basis whereas foremen were paid on a salary basis. He had no authority to hue or discharge an employee, but in the absence of Simpson who supervised moie than one depaitment, carried out Simpson's instructions Several employees testified that White was a foreman or supervisor, and Bahr testified without contradiction that at the TWUA meeting of September 7, White stated that be was a foreman. Theodore B Nilsen, the respondent's general manager, testified that White was not a foreman* but that he was given one of the notices directed to supervisory personnel "rather than have hint attend any further meetings with any question about his status," and that having instructed White not to attend meetings of the TWUA, "we had to instruct him also not to attend Independent union meetings." When questioned on cross-examination concerning White's duties and authority, Nilsen was 'exceedingly evasive. White was excluded from membership in the Independent, whereas machine fixers geneially were admitted. It was stipulated by counsel for the Board and counsel for the respondent that White was a supervisor. In view of this stipulation and on the basis of the entire testimony, the undersigned is convinced and finds that in addition to his duties as a "fixer," White exercised supervisory functions and was regarded by the em- ployees as representative of management. _ '18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an organizational speech by Bahr, Supervisor White stated,that the respondent's employees were satisfied with existing conditions and did not need the CIO, or an outside labor organization, but could form a union of their own, and that they could "get a lot more out of the mill" now that the "CIO had •come into Clinton." $ After White had spoken and, when Bahr started to pass,out TWUA mem- bership cards, White and Kendall left the meeting and a majority of those in attendance left at or about the same time. Some of the employees who remained signed TWUA cards. On the day following the September 7 meeting, Bahr called at the offices of the respondent and conferred with Theodore B Nilsen, the respondent's general manager and vice-president, and Norman F. Haas, the,, respondent's personnel director. A stenographic report was made of the, conference without objection from Bahr, who testified: "I believe I told them I couldn't have any objection. It was their ofiice.;'t Bahr told Nilsen that company officials had been present at the meeting of the prior day,' and that because'of their presence the employees were "generally" afraid to join the TWUA,' and requested that a notice be posted in the plant setting forth employees' rights to join a union of their own choosing, as defined in the Act. Nilsen advised Bahr that no employee would be dis- criminated against because of union activity but did not agree to post a notice, as suggested, directed to the employees generally. Nilsen did, however, read to Bahr a notice addressed to all supervisory personnel which had been prepared by the respondent prior to the conference and which stated : Within the last few days it has come to our attention that attempts are being made to unionize this plant. In view of the current efforts along this line, the Company feels that it should clarify its position. This Company must,and does remain strictly impartial to any attempts at unionization. We do not take a stand for or against such efforts. As a supervisor you are a represental ive of the company and as we understand it, you are not eligible for union membership. We are therefore advising you to take a neutral stand on this issue. You are not to advise any employee whether he should or should not join any union. - If-these instruction are not clear see us at once. The above notice was handed to each of the supervisors and foremen and to -office employees, by Haas, shortly after the conference with Bahr, but was not 3This finding-is based on the testimony of Bahr, Anna Pratt, and Georgia Pratt. Bahr testified that White stated that they "didn't need the CIO or an outside organization," that "they could organize a company union and the Company was willing and ready to deal with such a union," and that he (White) "felt that now was the time, that the CIO had come into Clinton, to do it." Anna Pratt testified,that "Mr Bahr and Mr White had quite an ai gument" and "White told Mr. Bahr that they did not want the CIO in and and that now that the woikers could form a union of their own and get a lot more out of the null if they would form this union , seeing that the CIO had come into Clinton" Georgia Pratt's testimony was in similar vein. White, though testifying subsequently to these Board witnesses , made no specific denials of the statements thus attributed to him and testified that he asked Bahr why, if the employees weie satisfied with exisitug condi- tions, it was necessaiy foi an outside organization to attempt to organize them Ile further testified that at the time he attended the TWUA meeting, lie "presumed" he was eligible for membership. ° Nilsen testified that he had thought that he had instructed all foremen not to attend the meeting , and White testified that although lie received no such instructions , he under- stood that the foremen geneially were so directed. 5 Balir, testified that lie was advised by employees remaining at the September 7 meet- ing that ,some of those who left the meeting at the same time as Kimball were afraid to sign up with the TWUA because of the presence of company officials I CLINTON WOOLEN, MANUFACTURING 'COMPANY 49 posted in the plant or otherwise directed by the respondent to the attention of the employees generally . Robert Pratt testified that it was common knowledge among the employees that foremen had received the aforesaid notice. On September 9, two clays after the TWUA meeting, a meeting for the purpose of organizing an independent union was held at the local school building. Prior to this meeting, Benjamin Mahrle, Sr., Everest Phrlo, and Gerald Ogden, em- ployees of the respondent, saw Nilsen outside the latter's office and requested him to shut the plant down that night "as they represented a majority of the Com- pany employees and wished to hold a meeting." Nilsen testified that he refused the request and advised these employees that the plant would run as usual, and that Ogden replied that "they were going to shut the plant down by walking out that evening at 8 o'clock." According to Nilsen, whose testimony is credited, he advised them that he would not be a party to this action and that, "any meetings they i might have would not be sanctioned on Company property or Company time." Nilsen later instructed the foremen to "see that anyone that left the plant rang out, and that anyone that wanted to remain in the plant and work, that the things were to be kept going." At 8 o'clock that evening all but about 12 or 15 of a total of 80 or 90 employees who worked on that shift left the plant, after "ringing out" in the customary manner Those remaining continued on their jobs. Ogden testified that prior to the employees leaving their jobs, lie asked the respondent's chief engineer to close the plant and the engineer refused stating that he had orders to continue operations. Ogden testified : "We asked him what would happen if we pulled the switch. He said somebody would get a sock in the nose " The meeting of September 9 was arranged by Mahrle , aged 53, who testified that he had worked for the respondent "off and on" since he was 16 years old. Prior to this meeting, at the suggestion ,of a Mr. Preston, president of an inde- pendent union at a nearby plant, he had conferred with L. B. Kuney, an attorney who represented certain unaffiliated unions, on methods of organizing an inde- pendent union and had circulated petitions prepared by Kuney among the re- spondent's employees to determine whether or not they favored the formation of an independent union a Both Mahrle and Gerald Ogden testified that they had discussed the formation of an independent union with Preston and that there had been discussion among the respondent's employees of forming an independent union for a year or more prior'to September 1941. Ogden further testified that actual organization of the Independent began at or about the same time that the TWUA started its organizational campaign in Clinton , and Mahrle testified' similarly. Mahrle presided at the opening of the September 9 meeting , explained that it was for the purpose of organizing an inside or company union, and introduced e Mahrle was extremely vague as to the date when he began the circulation of the petitions , fist testifying that he did not remember whether it was in 1940 or 1941, later testifying that it was about the same time that the TWUA began is organizational activity in Clinton , and still later , in response to a leading question by counsel for the Independent, stating that he first saw Kuney and received the petitions prior to Labor Day, 1941 There is no evidence, however, that any employee signed the Mahrle petition prior to the date of the first TWUA meeting. Glen H. Van Auker testified that he signed the petition 2 or 3 days prior to the September 9 meeting of the Independent ; Lynn K. McIntyre testified that he signed it on the same day of the meeting; Robert Pratt testified that the petition was circulated on the night following the first TWUA meeting. Upon the basis of the entire testimony , the undersigned is convinced and finds that the Mahrle petition was not circulated until after the announcement of the first TWUA meeting. The petition itself was not offered in evidence, Mahrle testifying that he did not know what became of it. 531647-43-vol. 49-3 20 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kuney' who invited those who wanted to join to pay their initiation fees.7 A motion to organize under the name of Clinton Woolen Workers was adopted, and a number of employees paid an initiation fee of $1 for which they were given receipts, no membership or authorization cards having been printed at that time. Van Auker testified that these fees were paid to three or'four employees who were at that time acting without any specific authorization, and that the meeting "started" after a majority of the respondent's employees had paid an initiation fee." A Board of Directors was nominated and elected by a voice vote, without opposition, and was authorized to sign articles of incorporation. At the close of the meeting, the directors chose from among their own number the following officers : Gerald Ogden, president ; Glen H. Van Auker, vice president ; Lynn K. McIntyre, secretary ; Harold House, treasurer ' McIntyre as secretary signed a copy of the minutes of the meeting which had been prepared prior to the meeting by Kuney. He testified that he read the minutes thus prepared and "they were as the proceedings were." The appropriate officers signed articles of incorporation which also had been prepared prior to the meeting by Kuney The meeting lasted approximately 1 hour 0 and, according to Van Auker, was attended by about 140 employees On the following day, September 10, Nilsen received a letter dated September 9 and signed by Ogden as president of the Independent 10 which stated : "Al the present time our total membership in your plant exceeds one hundred, our union now 'represents considerable more than a majority of your employees."li 'The letter also set forth 13 specific "demands" submitted for the respondent's "ap- proval and acceptance" and requested a meeting with representatives of the man- agement. On September 11, Nilsen acknowledged the letter and agreed to meet with Independent representatives "as soon as such a meeting can be arranged." Nilsen thereafter set Sunday noon, September 14, as the time for the meeting. The TWUA has scheduled a meeting on the same day'at 2 'o'clock p in 'and Nilsen admitted that be had seen a handbill"advertising the TWUA meeting He stated ,that he chose Sunday for the meeting because the plant was not at that time in 7 Alahrle testified that having arranged for the first meeting and "got the thing started" he "called it a job " Theie is no evidence that he was thereafter active in the Independent. --8 In answer to the question, " . how did they know just what constituted a complete not of the employees?' Van Aul:er testified, "well, I didn't'have any knowledge of that. They had an estimated majority, I would say " Van Auker also testified that Kuney read,the bylaws and they were approved "after it was asceitained that we had a majority of the eligible woikers." 1liclntyie testified that employees paid their initiation fees while Kuney was reading the bylaws Iioidever, the minutes of the first meeting of the Independent's Board of Directors which took place following the general meeting on September 9, state • "The Board went over all of the proposed by-laws item, by item and approved the same to be submitted to the members at a special meeting to be held " It is clear therefrom and the undersigned finds that the bylaws weie not approved at the meeting of September 9, or prior to September 10, the date of the second meeting of the Independent The time chart of the respondent which was received in evidence shows that most of the employees who left the plant on this occasion were absent from their jobs 1 hour or a few minutes less 10 Nilson testified that the letter was handed to' him by Ogden Ogden, However, testi- fied that Kuney sent the letter of September 10 and that he had not read it; later, on cross-examination, he testified that he may have seen the letter in Kuney's office and that it was already prepared when he saw it - ' Authorization cards were not printed until September 11 or 12, and therefore the claim of a majority in the letter of September 9 must have rested on the payment of initia- tion fees The record does not disclose how many had paid initiation fees on that date It was stipulated, however, that there were appioximately 160 "paid up" members of the Independent on September 14, at the time of the conference with representatives of management, and that on that date there were approximately 257 employees eligible for membership in the Independent. CLINTON WOOLEN MAN'UFACT'URING COMPANY 21 operation on Sundays, and because approximately,50 percent of production was on government orders 12 The conference of September 14 was attended by the Independent's entire Board of Directors and its attorney, Kuney, and by Nilsen, Haas, and Kimball. The' Independent presented cards and advised Nilsen that there were 148 signed authorization cards of employees who had paid their initiation fees, 11 cards signed by employees who had not paid their fee, and S cards which did not bear signa- tures but represented employees who had paid initiation fees but had not signed cards, or- a total representation of 168 employees. Nilsen admitted that he did not count the cards but testified that he made a "spot check," without comparison with the pay roll, to see if the cards bore names of employees. Nilsen testified : I had known these individuals on the Board since the time I had come with the company I had never had any reason to question the word of any of them, they are all reputable people Most of them have been in the employ of the Company for a long time, and I didn't see any necessity for counting each card in that group. On the basis of the representations thus made and without further investiga- tion of the Independent's claim of a majority, the respondent immediately recog- nized the Independent as sole bargaining representative of its employees and during the same conference, which lasted approximately 4 hours, negotiated a contract with the Independent. A contract proposal which had been prepared prior to the meeting by Kuney and which incorporated the demands made in the letter of September 9, afforded the basis for negotiations. Both Van-Auker and McIntyre testified that they had not seen the contract prior to its presentation by Kuney at this conference, although Van Auker _ testified that some of the directors had seen a contract similar to the one proposed at Kuney's office some- time prior to the meeting Van Auker further testified that the proposed contract was not discussed with employees prior to the meeting 13 The contract thus pre- pared, by Kuney proposed, titter alga, a 10 cents an hour general wage increase, and a closed shop with check off of union dues The respondent opposed the 10, cents an hour wage increase and proposed a 10 percent increase instead which was accepted by the Independent. It was also agreed that a quarterly bonus would be paid by the respondent, the amount to be determined by joint conference of Independent and management representatives upon the basis of the respond- ent's earnings,14 and that time and one-half would be "paid for work done on 12 Van Auker testified that he was advised of the meeting by McIntyre. McIntyre, however, testified that be first learned of the meeting when advised of it Sunday morning by Van Auker, and that lie knew nothing of the circumstances which led to it Ogden testified that Kuney made the "arrangements" for the meeting. Nilsen testified that he met Kuney for the first time at the September 14 conference. 11 Robert Wilson Walton, a Board witness, testified that at the meeting of September 9, Kuney "read over something that lie would like to have drawn up for a contract, what the Union intended to do for the employees in the mill," and the Independent's letter stated, with refeience to the `demands' set forth in the letter, "At a meeting of all the members of the Clinton Woolen Workers held September 9, 1941, at the High School Auditorium, the following demands were prepaied by the members of the Union . . In view of the testimony of McIntyre and Van Auker, the minutes of the first meeting, which make no reference to "demands' or contract proposals, and the fact that the meeting lasted only an hour, the undersigned is convinced and finds that the demands set forth in the letter were not lead of discussed in the meeting of September 9 or with employees generally pilot to the conference of September 14. 14 For a period preceding the execution of the contract by the Independent and the respondent, the employees had received a /15 percent bonus The first bonus paid pursuant to the terms of the contract was only 71]2 percent The employees, therefore, for at least the first quarter after the contract received an actual increase in earnings of only 21/3 percent - 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sundays and holidays regardless of whether such time was in excess of a 40- week. The respondent agreed to the closed-shop and check-off provisions 16 with the modification that the respondent would have a 30 day period in which to decide whether to retain or discharge a new employee.16 It was further agreed that since the contract as approved was to be submitted to the members of the Independent for ratificatiop, the respondent would close its plant for a time on September 16 to enable employees to attend a meeting for this purpose. Pursuant to this agreement, the respondent closed its plant for one hour on September 16. The following notice Iwas posted in the plant prior.to the Itide- pendent meeting of that date : The Clinton Woolen Workers Union has demanded that'the Company slfut down from 3: 30 p. m. to 4: 30 p. in. today in order that all members may attend a meeting at the school auditorium during the shut, down . In com- pliance with this demand' the plant will be closed during this period. All employees will punch out at 3: 30 p. in and work will resume after the meeting. - CLINTON WOOLEN MANUFACTURING COMPANY. All employees, whether or not they were members of the Independent,` were thus required to leave the plant for a period of 1 hour, and the respondent de- ducted from their pay for the time lost. The contract agreed upon by repre- sentatives of the parties`at the September 14 conference, was read at the meeting of September 16 and was ratified by a voice vote. It was signed on that same date by representatives of the parties, and a notice was posted in the respondent's plant which set forth the more important terms of the contract and stated that employees eligible for membership in the Independent who had not signed mem-' bership cards and paid dues on or before September 20 "will no longer be em- ployees of the company " This notice was signed by Ogden as president of the Independent. It was provided in the contract thus executed by the respondent and the Independent that it should remain in effect "until October 1, 1942, or until such date as the parties may mutually agree upon from time to time, pursuant to the provisions of the National Labor Relations Act." On or about August 17, 1942, Bahr wrote to the respondent stating that the TWUA represented a majority of, the respondent's employees, and advising the respondent that it should not enter into a collective agreement with any other labor organization On August 22, 1942, the respondent acknowledged Bahr's letter and stated: Your letter indicates that you do not know that a new agreement with the Clinton Woolen Workers was concluded on August 12, as the result of nego- tiations commenced sometime prior thereto. - We would not have concluded this agreement if we had not been satisfied that Clinton Woolen Workers was the proper representative of our employees. 15 Other provisions of the contract as agreed upon gave the Independent the privilege of operating candy vending machines in the respondent's plant, all profits therefrom to be retained by the Independent. These machines, however, were never installed The respondent also agreed to erect bulletin boards in its plant for the exclusive use of the Independent. "Nilsen testified concerning the respondent's acceptance of the closed shop* "We are in a district where the closed shop is prevalent, it seemed to us that it was an inevitable thing, and rather than enter into a lot of controversy and have a lot of ill feeling, which in turn might reflect in our operations , we decided we might just as well give them the closed shop." Nilsen testified that he insisted that all eligible employees be admitted to membership in the Independent , under the closed shop provision. CIAINTON WOOLEN MANUFACTURING COMPANY The contract executed by the respondent and the Independent on August 12, 1942, contained most of the provisions of the original contract, the only essen- tial change being that the employees were granted an additional 10 percent gen- eral wage increase. Ogden testified that the new agreement was executed prior to the expiration date of the first contract because it appeared that wages might be "frozen" by government order. B. The discharges Pursuant to terms of the contract executed September 16, 1941, all of the respondent's employees eligible for membership were required to affiliate'with the Independent as a condition of employment 17 In January and February, 1942, however, there was a resurgence of TWUA activity and a number of employees signed TWUA membership cards. On February 13 and on February 16, 1942, meetings of the Independent's direc- tors were held during working hours at a public building in Clinton, and certain employees suspected of TWUA activity were taken from their jobs and brought before the directors for "trial." McIntyre testified that "there were certain mem- bers of the organization that were trying to undermine us", and they were brought before the Directors to "clear their skirts if they could." Ogden testified that he advised the foreman of the weaving department that he was taking the men. Questioned, "Didhe object to'their going?" Ogden testified, "I didn't wait for his answer. I just went down and got them." Van Auker testified that the meetings were held during working hours of at least some of the directors and that they, "all rung out." Employees thus called from their jobs during working hours were paid for the time lost by the Independent. It is clear from all the testimony, and the undersigned finds, that the action of officers of the Independent in taking employees from their jobs during working hours and in absenting themselves during working hours, was not resisted by the respondent and the respondent did not thereafter discipline or penalize these officers for their action in thus interrupting production. As a result of the February 13 and February 16 meetings, the following em- ployees were expelled from membership in the Independent : Robert Pratt, August J. Feldkamp, Junior J. Feldkamp, Robert M. Crosby, Max J. Jedele, Auneta A. Walton, and Robert W. Walton: The respondent was notified in writing that these employees had been expelled from membership in the Independent and upon receipt of this'notice the respondent immediately discharged each of the named employees. Robert Pratt, August J. Feldkamip, Junior J Feldkamp,1$ and Robert M. Crosby were discharged on or about February 13, 1942, and Max J. Jedele, Auneta A Walton, and Robert W. Walton on or about February 16, 1942. All of these employees had signed membership cards in the TWUA and had been ap- 'pointed on the TWUA's organizing committee, except Jedele who belonged to a CIO organization before employment by the respondent some 4 months prior to his discharge Robert Pratt testified that at the time of his discharge, Haas informed him that he "had nothing against" him and that his work was always good, "as far as he knew." August J. Feldkamp testified that Haas, on the occasion of his discharge, stated that "he was sorry that he had to give me my check, because it would slow up production." i t 17 The appropriate unit as stated in the contract was comprised of all "production and maintenance hour time employees, not including watchmen, police and the supervisory force . . 18 Subsequent to his discharge Junior J Feldhamp was inducted into the armed forces of the United States. '24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 After his discharge , Jedele asked Ogden for a "rehearing" of his case and Ogden said he would refer the matter to the Independent 's directors since he did not think, that Jedele "had anything to do with the CIO." Jedele went to the plant on February 20 and was given his work badge by Maas who told him to wait before going back on his job until Ogden had reported . Ogden came in and said that he found that Jedele had been "arguing for the CIO" and that there would have to be another meeting of the directors . - Jedele was never reinstated. August J. Feldkamp, aged 68, who had been with the respondent some 20 years, -went to Ogden 's house to appeal for reinstatement , and was told by Ogden and McIntyre that if he -would give them the names of employees who had signed membership cards in the TWUA, they would get him reinstated in 29 days. Feldkamp gave them the names as requested , but it was April 15 , 1942, or about 2 months later, that he was reinstated . , Though reinstated , he was denied the - seniority status he had acquired up to the time of his discharge. Anna Pratt. Mrs . Anna Pratt was first employed by the respondent in 1937. She was employed on a second shift and was laid off from time to time when the shift was discontinued due to curtailment of production . She was called back to work each time when a second shift was again required . She was em- ployed as a feeder tender in the carding room. Her husband was one of the respondent 's foremen. Mrs. Pratt was handed one of the pamphlets advertising the first meeting of the TWUA and attended the meeting. When-, during the course of the meeting, Supervisor White stated that the respondent 's employees were satisfied with existing conditions and that there were no "grievances " among its employees, Mrs Pratt stated that she had a grievance inasmuch as she performed the same duties as a man on an alternate shift but received 5 cents an hour less pay. She remained throughout the meeting , signed a TWUA membership card, and was appointed a temporary steward of the carding room At least one meeting of TWUA stewards was thereafter held in her home. She testified that her bus- band was not present at the meeting. On the day following the September 7 meeting of the TWUA when Bahr called at the respondent's office, the matter of employee grievances was discussed and Bahr mentioned that a woman had voiced a complaint during the meeting. Haas stated that the woman was Anna Pratt 10 It is clear therefore that the respond- ent was informed of Anna Pratt's participation in the TWUA organizational meeting. On September 27 a notice to "Feeder Tenders" was posted in the plant. This notice differentiated between the duties , of men and women feeder tenders in that the male feeder tender was required to "run out lots, help bring in sheeted lots from waste room and fill chutes in an emergency" whereas female feeder tenders were instructed not to perform these functions. After the recognition of the Independent by the respondent, Anna Pratt was solicited to join the Independent by McIntyre and replied that she did not want to join inasmuch as she had signed a TWUA card. McIntyre came back later and told her that she would have to join or lose her job. She then joined the - Independent and according to her testimony , was not thereafter active in behalf of the TWUA. However, sometime after she had joined the Independent, McIn- tyre tbld her that she would have to sign a written statement ' to the effect that she "would not have anything to do with anyone connected with the CIO." 20 10 Haas testified that he knew that it was Anna Pratt who had voiced a grievance at the TR'IIA meeting because news "gets around pretty fast in this town." 20 McIntyre accused her of having violated one of the Independent 's by-laws but refused to let her see a copy of the entire by-laws, showing her only the by-law which she allegedly had violated. - CLINTTON WOOLEN MA1N'UFACTURIIl\TG COMVIIPAN,Y 25' She refused to sign such a statement unless all Independent members were re- quired to sign, and, later, asked Personnel Director Haas if she would have to sign the statement or lose her job. Haas replied that he "didn't know they were doing any of that kind of thing," and that he would "talk to them," and would then come back and tell her what he had found out. On the following ,day, Haas asked her why she "wanted, the CIO," and she replied that she thought "the mill would run much steadier" and she would have more work if they "had the CIO in the mill, the same as the auto factories did." Haas answered that he could see her "point" and that he had an idea they would both "be in the mill for a good many years." Haas did not mention the statement proposed by McIntyre nor was she again asked to sign it.'1 She testified that she thought the conversations with Haas occurred early in October, 1941. On or about October 29, one of the feeders on Anna Pratt's job ran out of wool requiring the machine to be shut down and thus causing an interruption of production 22 When this was reported to Haas, he called her to his office with the intention of discharging her" He told her that there had been a great deal of waste coming out of the carding room and that they had decided to call employees into the office or discharge them when they found work of this kind. He then said that this was the first time he bad heard of her having "this trouble". McIntyre, Independent steward of the carding room, when sum- moned by Haas, stated that in the past employees had been accorded a "second chance" and that the Independent "wouldn't allow" Haas to discharge Mrs. Pratt at that time, but that if the same thing happened again "they wouldn't stand in the way of the discharge." 24 Mrs Pratt was thereupon permitted to continue on her job. She offered no explanation of why she had let her feeder run out on this occasion other than that she was sweeping underneath one of the carding, machines at the time of the occurrence She testified, however, that this was the first- time she had let one of her feeders run out, and there is no evidence that she had previously been reprimanded or disciplined because of poor work., % On November 21, 1941, the day following Thanksgiving, Anna Pratt was again called to Maas' office He handed her her check and told her that she was discharged because her work was so defective that it could not be run on the spinning frames She denied that she was responsible for the poor work but Haas told her that it had been identified as hers. McIntyre was again called in but he stated that she had been given one chance, and did not oppose her discharge He advised her that she could appeal to the Independent's Board 21 These findings are based on 'the undisputed testimony of Anna Pratt. 22 The raw wool is blown by air into bins on the top floor of the plant. There are wooden chutes from the bins to the carding room o Bich is on a lower floor, and the raw wool is removed from the chutes by hand and placed by the feeder tender in the feeder which is a receptacle resembling a manger from which the raw wool is auto- matically fed into the carding machine. The feeder tender's chief duty is to see that the feeders are pioperly filled with wool at all times The chutes are located only a few steps from the nearest feeder. There were 6 feeders on Anna Pratt's job The wool issues from the carding machine in the form, of "roving", or loose strands. This roving is contained on spools which are removed from the carding machine by the finisher tender, are weighed, and if of satisfactory weight are then conveyed to the spinning room on a lower floor. " - ' 22 This finding is based on Maas' testimony. 21 McIntyre testified : "I was called in and apparently she was all through because that had been quite a common occurrence and I said that inasmuch as we had already estab- lished a precedent in other cases, that she should have another chance with the under- standing that the same thing didn't occur again." 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Directors, but no further action was taken on her case and she was discharged.21 Paul Louis Dunham , an assistant superintendent, testified that on the day following Thanksgiving, he noticed that the Number 1 frame in the spinning room had quite a few "ends down" on certain spools and instructed the spinner to stop the machine. The spools on which the ends were down were marked with the identification number of the finisher tender, and were by that method traced to the -Number 1 carding machine.28 Georgia Pratt, sister -in-law of Anna Pratt , was the finisher tender on the Number 1 carding machine and three others, whereas Anna Pratt was the feeder tender on these same machines and two additional machines. The defective work was thus traced by the identifi- cation of the finisher tender to Anna Pratt . Haas testified that he was sum- moned by Dunham to the spinning room and was shown the work on the Num- ber 1 frame and "it was running very bad. In fact I don't believe they could run it at all " Dunham also advised Haas that Anna Pratt had let two of her feeders run out. McIntyre testified that he was shown the defective work thus attributed to Mrs Pratt. Anna Pratt was not shown the defective work attrib- uted to her. The respondent's plant was closed all day Thanksgiving and Anna Pratt's last work shift prior to her discharge ended ` at midnight, November 19. She ad- mitted that on the previous night, November 1 8, two of her feeders ran low and she had to shut down the two machines . It appears from her uncontradicted testimony, however, that these feeders ran low, on this occasion , because of an insufficiency of wool in the chutes . It further appears from the notices posted by the respondent on September 27, that it was not, her duty to put wool in the chutes ; in fact, she was instructed not to. According to her uncontradicted testimony, she notified the employee whose duty it was to fill the chutes 27 that the wool was running low in her feeders, but that, he was engaged in other work and before he was free to fill the chutes, the wool in the feeders was so low that she had to shut down two of the machines .' She also asked her foreman, Clarence Tirb, if she might put wool in the chutes and he replied that he would do it himself . She admitted that she did not state these circumstances to Haas at the, time of her discharge , but it does not appear that she was spe- cifically accused of having let her feeders run low but was merely advised by Haas that she was being discharged because of poor work which was causing difficulty in the spinning room. The feeders which ran low on Anna Pratt's job on this occasion were identified as numbers 5 and 6. Tirb testified that he cut up the roving on the Number 5 machine and put it back in the feeder 2° He further testified that he cut back 23 McIntyre testified that the "immediate cause" of Anna Pratt 's discharge was the fact that "she allowed two feeders to run out." He further testified : "All I saw was the result of the work when they tried to run it on the frames , the strands were so thin they broke down , they wouldn't run." 22 Haas testified that the system of identification of work was installed during the latter part of October, 1941, after discussion with Dunham and James T. Cullen, assistant super- intendents , about difficulties in the spinning department due to defective carding work. The finisher tender was thereafter required to mark each spool in a manner that it could thereafter be traced back to the machine from which it issues . A partial cause of the difficulty in spinning was "double ends" which did not result from deficiency on the part of the feeder tender but of the finislier •tender. 27 Foreman Clarence Tirb testified that the men who filled the chutes were called "card 1,1 strippers," and "there were two men filled the chutes . . 28 It was the duty of the feeder tender to shut down the machines if she observed that the feeders were too low or out. _ 21 Where the feeders had run low and the roving was too thin therefore for spinning, it was customary to cut it up and return it to the feeder as raw material . When asked if Anna Pratt requested his permission to get wool for her feeders , Tirb testified : "Not that I know of." ' i CLINTON WOOLEN MANUFACTURING COMPANY - 27 some of the roving on the Number 6 machine and returned it to the feeder, and that he weighed the spool from the Number 6 machine on which some of the roving had issued, "okayed" it, and let it go 30 Tirb notified Dunham that Anna Pratt had let two of her feeders run low but Dunham did not report it to Haas until November 21, the day following Thanksgiving, after his discovery of the defective yarn on the Number 1 spinning frame.' Anna Pratt testified that on the last shift worked before the Thanksgiving holiday,' her work was very light and she "had plenty of time to watch." Georgia Pratt, whose duty as finisher tender was to observe the roving as it came over the machines, testified that she did not notice anything wrong with Anna's feeders on this occasion. She testified : "If that work was made by Anna Pratt, it was made by me, because I was tending to the finisher, and .. . if it was very noticable (sic) I too should have noticed it, and I didn't notice it . . . No one scolded me about it, or told me that she had turned out poor work. Of course, I was very greatly concerned about it, because I thought it would be my responsibility too." `3 Tirb testified that he weighed the spools from Anna's machines on this shift, and when asked the question, "were they all right that, night, if you recall?" testified, "As far as I know, they were. When we weighed them, yes." It is apparent from all the testimony that any defective work issuing from the Number 1 machine was detected only when it reached the spinning department on the day following the Thanksgiving holiday - , While Anna Pratt testified that she had never observed any other feeder tender let her feeders run low, that this was not an uncommon occurrence in the carding department is established in the testimony of several witnesses. Tirb in response to the question, "To your knowledge, did it happen very often that feeders would run low?" answered, "Yes, we had a lot of trouble with that", and "Well, I would say quite often." Robert Crosby testified without contra- diction that Morris Heath let his feeders run out 2 or 3 times in one night.`' Georgia Pratt testified, "It is quite a common thing for the feeders to run low", and that it "happened quite often. We had two, week before last, completely out. It isn't supposed to happen." No employee other than Anna Pratt was discharged or penalized for this fype of defective work 30 Approximately 50 yards of roving are -cut off from the end of the spool for purposes of weighing. Since there are thousands of yards of material on the spools , it is of course possible that whereas the material weighed is of standard weight there may be material in the middle of the spool that is too thin for proper spinning and which would not be detected at the time of weighing 11 Dunham testified that lie ins%ected the carding room on the last work shift before Thanksgiving and that Tirb told him that Anna Pratt had let one of her feeders run out, but that it was after he left the carding room that she let the second feeder run out and Tirb did not report this to him until the day after Thanksgiving, and after he had discovered the defective work on the Number 1 spinning frame It is clear, however, from the testimony of Anna Pratt, substantially corroborated by Tirb, that it was on Tuesday before Thanksgiving that two of her feeders ran low and Tirb testified that he reported the occurrence to Dunham on the following night. Haas testified that lie left town Wednesday noon before Thanksgiving and did not return until Friday following Thanksgiving 33 Normally, the wool issuing from the carding machines on one shift is placed on the spinning frames on the following shift Thus, normally, the work discovered on the Number 1 spinning frame the day after Thanksgiving would have issued from the Number 1 carding machine on the last shift before Thanksgiving. Haas testified "I would say the deficiency in the work on No. 1 happened the night before Thanksgiving " 'Haas testified that feeder tenders and finisher , tenders have a joint responsibility "in that neither one should allow bad work to come through " Cullen also testified that it was the responsibility of the finisher tender to notice if the wool was running too thin. 81 Haas testified that he was not advised of this occurrence . Heath did not testify. 28 DECISIONS OF,'NATIONAL LABOR iELATIONS, BOARD Both Anna and Georgia Pratt-testified that whereas, prior to the advent of the TWUA, Supervisor James T Cullen inspected, their work only occasionally, after the first TWUA meeting he would inspect their work almost every day. Georgia Pratt testified: "after this 'CIO meeting he (Cullen) would come up every day and sometimes two or three times a day and whenever I noticed him, he always went back of the feeders and looked at them and felt of the roving as it came over the overhead and picked -up little tufts of wool and went and talked to Mr. Steele about them." Cullen testified that there was no change in, his method of supervision or its frequency following the September meeting of the TWUA. The undersigned found Anna Pratt to be a truthtul and convincing witness, and credits her testimony which is corroborated by that of Georgia Pratt. In February, 1942, Anna Pratt applied to Haas for reinstatement. Baas told her that' he "had nothing against her" but that there were "others" who did not want her and that he would speak to them and let her know. She did riot there- after hear from him. C. Concluding findings There is very little conflict in the testimony on the basic facts upon which a conclusion must be reached whether or not the respondent interfered with and dominated the formation and administration of the Independent. Although the formation of an inside union had been a topic of discussion among the respondent's employees for a year or more, it was-Dot until the TWUA began its organizational campaign that the first actual steps were taken to organize the Independent, and in a week's time following the first meeting of the TWUA, the Independent had been organized and-had been granted recognition by the respondent as sole bargaining representative of its employees. These circum- stances considered as an isolated factor do not of course establish respondent interference and domination, since the threat of competition is commonly a spur to action, but must be viewed in the context of the entire situation for their true and full significance. The first meeting of the TWUA on September 7, 1941 was advertised as an organizational meeting and its announcement was addressed to the respondent's employees. That the respondent appreciated the implications which might flow from attendance of this meeting by its supervisory personnel is shown in the testimony of Nilsen that he thought he had instructed all his foremen not to attend the meeting Nevertheless, Kimball, the respondent's secretary-treasurer, and White, a supervisor, attended the September 7 meeting, and White during the meeting spoke publicly against the TWUA apd advocated the formation of an inside union. While White may have "presumed" that he was eligible for membership in the TWUA, his position was such that the employees regarded him as representative of management. Both White and Kimball left the meeting when the employees were invited to sign membership cards in the TWUA, but it is reasonable to assume that their presence at the meeting and White's state- ments operated as a restrain upon the employees' freedom of choice of a bar- gaining representative, and this is further indicated by the fact that a majority of the employees left the meeting at or about the same time as Kimball and White. When on, the day following this meeting the respondent was advised of the participation in the meeting of its supervisor, White, and the attendance of its secretary-treasurer, it was afforded an opportunity to absolve itself from possible implications of interference and to manifest its disinterestedness by publishing to its employees a disavowal of White's partisan comments. and a statement of its own neutrality. The respondent, however, refused or failed to. CLINTON WOOLEN MAN'UPACTURING COMPANY 29b take such action or to post a notice, as requested by the TWIJA representative, advising its employees of their rights of self-organization under the Act, although it did address a notice -to its supervisory personnel, including White; instructing them to refrain from participation in union activities and setting forth the respondent's position of,neutrality. While it may be assumed that this notice eventually became generally known to the employees through rumor or otherwise, it contained no repudiation of White's statements, was not posted in the plant, and therefore did not have the effect of dissipating the restraint which had 'already been imposed upon the minds of the employees and which was heightened by subsequent developments. Two days following the September 7 meeting of the TWUA, a meeting was held for the purpose of organizipg the Independent This meeting was arranged and presided over by Mahrle whose association with the respondent has extended over many years and who was in the full sense of the term, an "old and trusted" employee.36 Prior to the meeting, petitions had been circulated, upon Mahrle's initiative, to determine whether or not the employees desired to form an inside union . Having successfully "launched" the new organization, Mahrle considered that his task was finished and does not appear thereafter to have been active in the Independent. The organizational meeting of the Independent was held during working hours, and while the respondent refused a request to close the plant for the meeting, when advised by three of its employees that the employees would walk out, it did nothing to counteract the "threat" and in fact offered no resistance whatever to employees leaving their jobs but permitted them to register on leaving the plant and on returning, in the customary manner. The employees who thus left the plant during working hours, thereby interrupting production, were not thereafter disciplined or penalized further than a reduction in their wages for the time they were absent from their jobs The respondent's passivity in the face of this considerable interruption of 'pro- duction, with full knowledge of its purpose, cannot be assessed as anything less. than acquiescence. Nilsen's explanation that you "can't discipline several hun- dred employees" provides little extenuation of the respondent's failure to make any effort to prevent its employees from leaving the plant, since it may be as- sumed with reasonableness that, had the 80,or 90 employees who left their jobs been advised by the respondent that such action would result in their discharge or other disciplinary measure, they would have remained at work and the or- ganizational meeting of the Independent would have been held outside of working hours. In any event, vigorous action by the respondent would have served to clarify its own position and render it less suspect of complicity. The undersigned is convinced and finds that the respondent by its non-action acquiesced in the holding of the first organizational meeting of the independent during working hours, and that by so doing it conveyed to the minds of its employees generally that the meeting was thus held with its consent and approval.36 The meeting of September 9 is remarkable for the haste and unaniminity with which the Independent's organization was accomplished. The by-laws, the ar- ticles of incorporation, and the minutes of the first meeting were prepared prior to the meeting by counsel, and during the somewhat less than one hour's time that the meeting lasted, employees paid initiation fees and were given receipts, adopted a name for the organization, and elected by acclamation its Board of Directors. 35 See Matter of W. L Masson Corporation and United Electrical Radio & Machine - Woikers of America, Local No. 475 (CIO), 44 N. L R B., 1136 81 See Matter of General Di y Batteries, Inc. and International Association of Machinists,. Lodge 1238, A. F. of L., 27 N, L R. B 1021. 30 DECISIONS OF NATIONAL LABOR ,RELATIONS BOARD On the following day, although no membership or authorization cards had yet' been printed and the Independent had not in fact perfected its organization, it notified the respondent that it represented a majority of employees, made a series of "demands" with respect to wages and working conditions, and requested a conference which was promptly granted. On September 14, one week after the first organizational meeting of the TWUA,' and'with- knowledge that 'the TUWA had scheduled its second meeting on that same day,' the respondent met with rep- resentatives of the Independent and in a single afternoon, on•the basis of authori- zation'cards which it did not count and the statement of the representatives of whom Nilsen testified, "they were all reputable people" and "Most of them had been in the employ of the Company for a long time" granted the Independent recognition as sole bargaining representative and 'reached an agreement on a contract the terms of which were not known to some members of the Inde- pendent's Board of Directors prior to the.conference and had not been discussed with the employees generally, and which included, inter ilia, provisions for a closed shop with check off of union dues. The striking amity 'prevailing in this meeting between The respondent and the Independent representatives whom it regarded as old and trusted 'employees, discounts any contention that the re- spondent's acquiescence in prior and subsequent demands of the Independent was occasioned by duress. cr'the fear that the,latter.would resort to retaliatory action if opposed in its demands. While a majority of the respondent's employees had paid initiation fees and signed authorization cards in the Independent at the time the respondent granted it formal recognition, it would appear that the respondent, with knowledge of organizational efforts of the TWUA, would normally, as a matter of ordinary caution, have at least counted the Independent cards and compared signatures thereon with the current payroll. Its failure to do so, or to make any further investigation of the Independent's claim to represent a majority of employees, manifested unusual haste and was not consistent with a truly impartial or neutral attitude. Such haste, under the circumstances of the entire situation, has its only logical explanation in a desire and intent to foreclose the TWUA from becoming the bargaining representative.'? - ' The respondent, with total disregard for the interests of employees who had not yet affiliated with the Independent, agreed to close its plant for one hour on the following Tuesday, September 16, to enable employees to attend a meeting of the Independent for the purpose of ratifying the contract. All employees, regardless of union affiliation or lack of it, were required to leave their jobs on this occasion, with a proportional reduction in wages, for which they could be compensated only by seeking reimbursement from the Independent. Such action, prior to the ratification and execution of the contract, is indicative of the respondent's haste in cementing its recognition of the Independent. In February 1942, officers of the Independent, without objection by the re- spondent, held meetings during working hours for the purpose of questioning certain employees, whom they called from their jobs, concerning their affiliation with the TWUA. The respondent's foremen though notified of this action did nothing to prevent it, nor was any employee penalized for thus interrupting production, though a reduction was made in the wages of employees thus taken from their jobs by officers of the Independent. Such supineness in the face of a considerable interruption of production at a time when, according to the respond- $T See N L. R. B. v. Precision Castings Company, Inc. and Precision Employees Associa- tion, intervenor, No 9099 (C.,C. A. 6), II LRR 26; also Matter of Wells-Lamont-Smith Corporation and Amalgamated Clothing Workers of America (C. I. 0.) ; and Louisiana Glove Workers Association, 41 N. L. R. B 2.53, decided June 30, 1942. CLINTON WOOLEN MANUFACTURING COMPANY 31 ent's own witnesses, full production was a matter of great concern, is not to be accounted for on the grounds that the respondent had no right to interest itself in the internal affairs of a labor organization. To the contrary, in its failure to protest or to make any effort to prevent this encroachment by Independent officers on the regular working hours of its employees, or to penalize those responsible for it, the respondent gave to the entire action the color of its endorsement. The discharge of seven employees which followed these meetings, while effected pursuant to the closed shop provision of the contract, in the light of the entire circumstances appears to have been motivated by the respondent's concern over renewed organizational activities by the TWUA. From the foregoing, it is seen that in its inception, and in successive stages of its organization, the Independent received the respondent's manifest support. Obviously, non-action when there is a duty to act may operate as a curb on employees' freedom of self-organization to the same extent as action when there is a duty to refrain. The undersigned is persuaded that the respondent's. entire course of conduct discouraged affiliation of its employees with the TWUA while encouraging affiliation with the Independent. The undersigned is further pre- suaded and finds, upon consideration of the entire-record, that the respondent interfered with and dominated the formation and administration of the Inde- pendent and contributed support to it. The contracts executed by the respondent and the Independent are therefore invalid, and the discharge of the seven named employees pursuant to its terms are discriminatory, within the meaning of the Act. The undersigned accordingly finds that the respondent discharged Robert Pratt, August J. Feldkamp, Junior J. Feldkamp, Robert M. Crosby, Max J. Jedele, Auneta A. Walton and Robert W. Walton because of their activity in behalf of the TWUA. The discharge of Anna Pratt was, not effected pursuant to the respondent's contract with the Independent and therefore requires separate and individual consideration Anna Pratt participated in the early organizational efforts of the TWUA, and at its first meeting voiced a grievance against management, and was thereafter up to the time she was required to join the Independent active in behalf of the TWUA. Her participation in the first TWUA meeting was, admittedly, known to the respondent, and thereafter her work was more closely inspected by her supervisor than previously. After joining the Independent, she refused to sign a statement, as requested by McIntyre, an officer of the Inde- pendent, professing to give up all associations with the TWUA, and when sub- sequently questioned by Haas concerning her continued interest in the TWUA, expressed herself as still favoring that organization. It is clear therefore that although she had affiliated with the Independent, she was suspected by officers of that organization of continuing associations with the TWUA, and that the re- spondent had knowledge of her continued preference for the latter organization. When Haas summoned her to his office on October 29, according to his own testi- mony he had decided to discharge her, although it appears that her work had been satisfactory over a period of some 5 years and the offense of which she was now guilty was a "common, occurrence" It further appears that other employees guilty of the same or similar failure in their work, were neither dis- charged nor penalized.' That Haas did not discharge Anna Pratt on October 29 is explained by the intervention of McIntyre, as Independent steward, who stated that it was customary to give an employee a "second chance", but who made it 11 " . . the test , whether, a challenged organization is employer controlled , is not an objective one but rather subjective, from the standpoint of employees." N. 'L. R. B. v. Thompson Products, Inc, 130 F (2d) 363 (C C A. 6) 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,clear 'at that time that the Independent would not oppose her discharge if she was again guilty of the same offense. ' Less than a month later, Anna Pratt was again accused of negligence in her work. and was, without objection by the Independent, discharged. The basis of her discharge, as' asserted by the respondent, was negligence in the operation of her numbers one, five and six machines. The' undersigned is convinced by Anna Pratt's undisputed testimony that she was not responsible for the interruption in production on her numbers five and six machines and is further convinced that her blamelessness was known to the re- spondent's foreman. The undersigned believes that if the work issuing from her number one machine had been as defective as the respondent contends it was, it would have been observed by the finisher tender on this same machine who shared responsibility for work issuing from it, or by one of the two or more su- pervisors whose duty it was to inspect the work as it was run through the machines, but it was not until the material from the machine had reached another department that its imperfections were detected. However, neither the finisher tender nor the supervisors, who had at least a partial responsibility for work leaving this machine, were reprimanded or penalized whereas Anna Pratt was discharged. The undersigned, in view of the entire testimony, Is persuaded and finds, that the respondent discharged Anna Pratt because of her participation in organizational activity of the TWUA and her continued preference for that organization as stated to Personnel Director Haas in response to the latter's questioning. The respondent by its interference with and domination of the formation and administration of the Independent and by the discharge of employees because of their union activities, has interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE ,The activities of the respondent set forth in Section III above, occurring in connection with the operations described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices,'the undersigned will recommend that it cease and desist therefrom, and take certain affirmative action which the undersigned finds necessary to effectuate the policies of the Act. It has been found that the respondent interfered with and dominated the forma- tion and administration of the Independent, and contributed support to it. The effect and consequence of the respondent's interference with, domination and sup- port of the Independent, as well as the continued recognition of the Independent as the bargaining representative of its employees, constitute a continuing obstacle to the free exercise by the employees of their right to self-organization and to bargain collectively through- representatives of their own choosing Because of the re- spondent's illegal conduct, the Independent is incapable of serving the employees as a genuine collective bargaining agency. Accordingly, the undersigned will recom- mend that the respondent disestablish and withdraw,, ll recognition from the Inde- pendent as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours,of employment, or other conditions of employment CLINtDON WOOLEN- MANUFACTURING COMPANY 33 Since the contract of, September 16, 1941, and the contract of August 12, 1942, each embody recognition of the Independent as such representative and are a means whereby the respondent's unfair labor practices are perpetuated, the undersigned will recommend that the respondent cease and desist from giving effect to such contracts, or any amendment , extension, or renewal thereof, or any other contract, agreement or understanding with the Independent relating to grievances, labor disputes , wages, rates of pay, hours of employment , or other conditions of employ- ment. Nothing herein shall be taken to require the respondent to vary those wages, hours, seniority, and other such substantive features of its relations with the employees themselves which the respondent has established in the performance of the contracts or as the said contracts have been extended , renewed, modified, supplemented or superseded The contracts of September 16; 1941 and August 12 , 1942, each provided for a check-off of Independent dues from thg wages of members of the Independent. The undersigned will therefore recommend that the respondent reimburse the employees who were members of the Independent for the dues , if any, - which the respondent has deducted from their wages on behalf of the Independent. Having found that the respondent discriminated in regard to the hire and tenure of employment of Robert Pratt, August J. Feldkamp , Junior J Feldkamp, Robert M. Crosby , Max J . Jedele; Auneta A. Walton, Robert W. Walton, and Anna Pratt, the undersigned will recommend that the respondent offer immediate and full reinstatement to Robert Pratt, August J. Feldkamp , Robert M. Crosby, Max J. Jedele, Auneta A. Walton , and Anna Pratt to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges , and that it make them whole for any loss of pay they may have suf- fered by reason of the discrimination against them, by payment to each of them of a sum of money equal to the amount which he or she normally would have earned -as wages from the date of such discrimination to the date of the offer of reinstatement , less his or her net earnings $° during said period . Since Robert W Walton does not desire reinstatement , the undersigned will not recommend that the respondent offer him reinstatement , but will recommend that the respond- ent make Robert W. Walton whole for any loss of pay he may have suffered by reason of the discrimination against him , by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of such discrimination to the date subsequent to his discharge when he was first employed in the position in which he was engaged at the time of the hearing in this proceeding, less his net earnings 90 during said period. ` Junior J Feldkamp subsequent to his discriminatory discharge was inducted into the armed forces of the United States. The undersigned will therefore recommend that the respondent, upon application by Junior J. Feldkamp within forty ( 40) days after his discharge from the armed forces of the United States , offer him rein- statement to,his former or a substantially equivalent position , without prejudice to his seniority or other rights and privileges , and make whole Junior J. Feld- kamp for any loss of earnings he may have suffered by reason of the respondent's discrimination against him , by payment to him of a sum of money equal to the S° By "net earnings" Is meant eai nings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for his 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 America, Lumber and Sawmill Workers Union, Local 2.i90, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings. See Republic Steel Corporation V. N. L R. B., .311 U S 7. 40 See footnote 39, supra. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amount he normally would have earned as wages during the periods ( 1) between the date of ,his discharge by the respondent and the'date of his induction into the armed forces of the United States; and (2) between a date five (5) days after Junior J. Feldkamp's timely application for reinstatement, as hereinabove set forth, and,the date of offer of reinstatement by the respondent ; less his net earn- ings " during said periods. Upon the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Textile Workers Union of America, affiliated with the Congress of Indus- trial Organizations, and Clinton Woolen Workers, are labor organizations within = the meaning of Section 2 (5) of the Act. tl 2. By dominating and interfering with the formation and administration of Clinton Woolen Workers, and contributing support to it, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 3 By discriminating in regard to the hire and tenure of employment of Robert Pratt, August J. Feldkamp, Junior J. Feldkamp, Robert M Crosby, Max J. Jedele, Auneta A. Walton, Robert W. Walton, and Anna Pratt, thereby discouring mem- bership in Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, the respondent has engaged in and is engaging in unfair. labor practices, within the meaning of Section 8 (S) of the Act. 4. 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. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, Clinton Woolen Manufacturing Com- pany, its officers, agents, successors, and assigns, shall: 1 Cease and desist from : (a) Dominating or interfering with the- administration of Clinton Woolen Workers, or with the formation or administration of any other labor organization, and from contributing financial or other support to said labor organization or to any other labor organization ; (b) Recognizing Clinton Woolen Workers as the representative of any1of its employees for the purposes of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay,,hours of employment, or other conditions of employment ; - - (c) Giving effect to the contract of September 16, 1941, or to the contract of August 12, 1942, with Clinton Woolen Workers, or to any modification, extension, supplement, or renewal thereof, or to any superseding contract with it; (d) Discouraging membership in Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, or any other labor organization of its emlloyees, by discharging any of its employees or in any other manner dis- criminating in regard to their hire and tenure of employment, or any term or condition of employment ; . 47 See footnote 39, supra I CIANTON WOOIsEN MANUFACTUURfNG- COMPANY 35 (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choos- ing, 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 Act. 2. Take the following affirmative action, which the undersigned finds will effec- tuate the policies of the Act : (a) Withdraw all recognition from and completely disestablish Clinton Woolen Workers as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment ; (b) Offer to Robert Pratt, August J. Feldkamp, Robert M. Crosby, Auneta A. Walton, Max J. Jedele, and Anna Pratt immediate and full reinstatement to. their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges ; (c) Make whole Robert Pratt, August J. Feldkamp, Robert M. Crosby, Auneta A. Walton, Max J. Jedele and Anna Pratt for any losses of pay they may have suffered by reason of their respective discharges by the payment to each of them of a sum of money equal to that which each normally would have earned as wages during the periods from the respective dates of the discharge to the date of the offer of reinstatement, less his or her net earnings during such period ; 4' (d) Make whole Robert W. Walton for any loss of pay he may have suffered by reason of his discharge by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from the date of his discharge to the date subsequent to his discharge when he was first employed in the position which he held at the time of the hearing in this proceeding, less his net earnings during such period ; 43 (e) Upon application by Junior J. Feldkamp within, forty (40) days after his discharge from the armed forces of the United States, offer him immediate and full reinstatement to his former or a substantially equivalent position , without prejudice to his seniority and other rights and privileges ; (f) Make whole Junior J. Feldkamp for any loss of pay he may have suffered by reason of his discriminatory discharge, by payment to him of a sum of money equal to the amount he would normally have earned as wages during the periods : (1) between the date of his discharge and the date of his induction into the armed forces; and (2) between a date five (5) days after Junior J. Feldkamp's timely /4 application for reinstatement and the date of the offer of reinstatement, less his net earnings 46 during those periods. (g) Reimburse each of its employees who were members of Clinton Woolen Workers for all the dues, if any, which it has deducted from their wages on behalf of Clinton Woolen Workers. (h) Post immediately in conspicuous places in its Clinton, Michigan plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that it will not engage in the conduct from which it has been recommended that it cease and desist in paragraph 1 (a), (b), (c), (d), and (e) of these recommendations ; (2) that it will take the affirma- tive action set forth in Paragraph 2 (a), (b), (c), (d), (e), (f), and (g) of these recommendations; and (3) that its employees are free td become or remain 41 See footnote 39, supra. u See footnote 39, sepia. 41 As provided in paragraph (e) supra. 46 Seo footnote 39, supra. 531647-43-vol 49-4 I 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' members of Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, or any other labor organization of their own choice; (i) Notify the Regional Director for the Seventh Region in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what,steps it has taken to comply herewith. It is further recommended that, unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations-Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended, effective October 28, 1942-any party may, within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Washington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or pro, ceeding (including rulings upon all motions or objections) as he relies upon, to- gether with the original and four copies of a brief in support thereof. As further provided in-said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. WILLIAM E SPENCER, Trial Examiner. Dated December 31. 1942.