Bluefield Garment Manufacturers

In the Matter of PAUL C. TRILLI, MATTIIEW Duvo AND WALTER SILBERG, D/B/A BLUErIELD GARMIENT MANUFACTURERS and UNITED CONSTRUC- TION WORKERS, AFFILIATED WIThI UNITED MINE WORKERS OF AMERICA, and INTERNATIONAL LADIES GARMENT WORKERS UNION, AFL Case No. 9-C-033X:.-Decided December 10, 194v Mr. William O. Murdock, for the Board. Mr. Paul C. 1'rilli, of Bluefield, W. Va., for the respondents. Mr. T. M. Price, of Radford, Va. and 211r. Charles Skeens, of Prince- toil, W. Va., for the Construction Workers. Mr. Julius Holzberg, of Cincinnati, Ohio, and Mr. Irwin Jaffe, of Baltimore, Md., for the ILGWU. DECISION AND ORDER On March 27, 1147, Trial Examiner-R. N. Denham issued his Inter- mediate Report in the above-entitled proceeding, finding that the respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain: affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the ILGWU filed excep- tions to the Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial- error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the ILGWU's exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations. of the Trial Examiner, with the modifications and exceptions noted hereinafter. We agree with the Trial Examiner that the respondents interfered with, restrained, and coerced their employees, in violation of Section 8 (1) of the Act.1 As more fully discussed in the Intermediate Report, 1 The prov isions of section 8 (1) of the National Labor Relations Act ale continued lit Section 8 (a) (1) of the Act, as amended. 75 N.L.R B,No 56. 447 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this conduct consisted principally of (a) entering into a union-shop agreement with the ILGWU shortly after a representation claim made by the Construction Workers; (b) requiring their employees to join the ILGWt7, pursuant to the terms of that agreement; (c) deducting from the wages of their employees initiation fees and weekly dues, for the ILGWTJ, in accordance with that contract; (d) making contribu- tions thereunder to the ILGWU's welfare fund; and (e) sponsoring the circulation of an anti-union petition.2 The ILGWU filed specific exceptions to the findings that the re- spondents' execution of the union-shop agreement, and their subse- quent action in requiring employees to join the ILGWU, were violative of the Act. We find no merit in these exceptions. With respect to the signing of the agreement in question, as indicated in the Intermediate Report, the respondents, on June 20, 1946, were confronted with con- flicting representation claims made by the ILGWU and the Construc- tion Workers. Alth@ugh the respondents could have resolved the question concerning representation created by these claims, by invok- ing the Board's processes, and although the respondents had assured the Construction Workers that they would not recognize any other labor organization as the representative of their employees until the matter had been determined by the Board, they then elected, instead, to disregard the claim of the Construction Workers, as. well as their own commitment to that organization, and, on June 21, entered into a union-shop agreement with the ILGWU.3 The ILGWU, in its excep- tions, seeks to justify this conduct of the respondents principally on the grounds that, at the time the agreement in question was executed, the ILGWU had secured membership cards signed by a majority of the employees concerned, and that these cards were checked by the respond- ents before they entered into the agreement. However, as we have previously observed with respect to an employer's reliance on such 2 In view of the state of the record , we do not adopt the Trial Examiner's finding that, in his speech to the plant employees on the morning of June 19 , 1946, Trilli, the managing partner of the respondents , informed the employees "that the coming of the Union might result in a piece rate instead of hourly pay which would work to their substantial disad- vantage." We are called upon, therefore, to determine whether Trilh's speech, devoid of this remark , was violative of the Act. In our opinion , the speech fell within the protected area of free speech, and we so find The Intermediate Report also contains certain minor misstatements or inadvertences, none of which affects the correctness of the Trial' Examiner's ultimate conclusions, or our concurrence in such conclusions . Accordingly , we note the following corrections, The business of the respondents includes only the manufacture of men's shorts , and not the manufacture of women's and children's dresses and sun suits , as found by the Trial Exami- ner. And the activities in connection with the anti -union petition , described in Section III, took place on July 10 , and not on June 10, as inadvertently stated. 3 Almost concurrently with the execution of this agreement , the Construction Workers forwarded a representation petition to the Board . However, the respondents apparently did not receive notice of this petition until several days after the union-shop contract had been signed. BLUEFIELD GARMENT MANUFACTURERS 449 proof of majority status submitted during the heat of rival organizing campaigns : 4 Under the circumstances, we do not regard such proof as con- clusive. Among other things, it is well known that membership cards obtained during the heat of rival organizing campaigns do not necessarily reflect the ultimate choice of a bargaining repre- sentative; indeed, the extent of dual membership among the em- ployees during periods of intense organizing activity is an im- portant unknown factor affecting a determination of majority status, which can best be resolved by a secret ballot'among the employees. Accordingly, we find that, under the circumstances, the respondents, by entering into the union-shop agreement of June 21, 1946, with' the ILGWU, interfered with, restrained, and coerced their employees within the meaning of Section 8 (1) of the Act.' As to the respondents' conduct in requiring their employees to join the ILGWU, pursuant to the terms of the union-shop agreement dis- cussed above, we have already indicated that this agreement was invalid. Consequently, the respondents may not rely upon its terms to validate their subsequent assistance to the ILGWU. We find, there- fore, that the respondents' action in requiring their employees to join the ILGWU interfered. with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act 6 ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the respondents, Paul C. Trilli, Mathew Duvo and Walter Silberg, doing business as Bluefield Gar- ment Manufacturers, Bluefield, West Virginia, and their agents, suc- cessors, and assigns shall : 1. Cease and desist from : (a) Recognizing International Ladies Garment Workers Union, AFL, as the, exclusive representative of any of their employees at their plant in Bluefield, West Virginia, for the purposes of collective bargaining, unless and until said organization shall have been cer- 4 Matter of Midwest Piping & Supply Co, 63 N L R. B. 1060, 1070. i Cf. Matter of Midwest Piping and Supply Co., Inc., fn. 4, supra; Matter of Keystone steel & Wire Company, 62 N L. R B 683, rev'd in part, 155 F (2d) 553 (C. C. A. 7), cert. granted 67 S Ct 190; Matter of Elastic Stop Nut Corporation, 51 N. L. R B. 694, enf'd 142 F (2d) 371 (C. C A. 8) ; and Matter of I Spiewak & Sons, 71 N. L. R. B. 770. Matter of Albert Love Enterprises, 66 N. L. R. B 416 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tified by the National Labor Relations Board as the exclusive repre- sentative of such employees ; (b) Giving effect to their contract dated June 21, 1946, with Inter- national Ladies Garment Workers Union, AFL, and every provision thereof, or to any extension, renewal, modification, or supplement thereof, or to any superseding contract with that labor organization, or any affiliate thereof, unless and until the said organization shall have been certified by the Board as the representative of the employees of the respondents at their plant in Bluefield, West Virginia; provided that nothing herein shall be taken to require the respondents to vary those wage, hour, seniority, and other substantive features of their relations with their employees, which they.have established in per- formance of the said contract, or of any superseding contract, or of any extension, renewal, modification, or supplement thereof; and (c) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organi- zction, to form labor organizations, to join, or assist United Construc- tion Workers, affiliated with United Mine Workers of America, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining, or other mutual aid or pro- tection, as guaranteed in Section 7 of the Act, as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act, as amended: (a) Withdraw and withhold all recognition from International Ladies Garment Workers Union, AFL, as tale exclusive representative of any of their employees at their plant in Bluefield, West Virginia, for the purposes of collective bargaining with respect to rates of pay, ivages, hours of employment, or any other conditions of employment, unless and until said organization shall have been certified by the r at3 , Nt tioilal Labor Relations Board as such representative; (b) Refund forthwith to all their employees from whose wages respondents have at any time made deductions and withheld funds pursuant to the provisions of the contract of June 21, 1946, all such deductions and withholdings representing initiation fees, dues, or assessments charged by International Ladies Garment Workers Union, AFL, to the end that such employees and each of them shall be promptly, fully, and completely reimbursed for all monies so deducted and withheld ; (c) Post immediately at their plant in Bluefield, West Virginia, copies of the notice-attached hereto marked "Appendix A." 7 Copies of 7 In the event that this Order is enforced by decree of a Circuit Court of Appeals, there shall be inseited before the words, "A Decision and Order," on this notice, the words: "A Deciee of the United States Circuit Court of Appeals Enforcing." BLUEFIELD GARMENT MANUFACTURERS 451 said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the respondents, or their representatives, be posted by the respondents immediately upon re- ceipt thereof, and maintained by them for a period of sixty (60) con- secutive days thereafter, in conspicuous places, including all places Where notices to employees are customarily posted. Reasonable steps shall be taken by the respondents to insure that said notices are not altered, defaced, or covered by an.), other material ; and (d) Notify the Regional Director for the Ninth Region, in writing, within ten (10) days from the date of this Order, What steps the respondents have taken to comply herewith. MEMBERS MURDOc1 and GRAY took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE To ALL Ei i VLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT recognize INTERNATION :v, LADIES GARMENT WORK- ERS UNION, AFL, as the exclusive representative of any of our em- ployees at our plant in Bluefield , West-Virginia, for the purposes of collective bargaining , unless and until said organization shall have been certified by the National Labor Relations Board as the representative of such employees. WE WILL NOT give effect to our contract dated June 9-1, 1946, with INTERNATIONAL LADIES GARMENT WORKERS UNION, AFL , or to any extension, renewal, modification, or supplement thereof, or to any superseding contract with that labor organization , or any affiliate thereof, unless and until said organization shall have been certified by the National Labor Relations Board as the representative of the employees at our plant in Bluefield ,'West Virginia , without preju- dice, however , to the assertion by the employees of any legal rights acquired under any contractual relationship. WE WILL forthwith reimburse each and every one of our em- ployees from whose weekly or other pay we have at any time with- held any funds as initiation fees , dues, or assessments payable to INTERNATIONAL LADIES GARMENT WORKERS UNION, AFL , all sums so deducted or withheld , to the end that each and every one of our 7 66972-48-vol 75-30 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees from whose wages such deductions have been so with- held, are promptly, fully, and completely reimbursed for all such deductions and withholdings. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist UNITED CONSTRUCTION WORKERS, AFFILIATED WITH UNITED MJ-NE WORKERS OF AMERICA, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. We hereby withdraw and withhold recognition from INTERNA- TIONAL LADIES GARMENT WORKERS UNION, AFL, as the exclusive representative of our employees for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment, seniority, or other conditions of employment, unless and until such organization shall have been certified by the National Labor Rela- tions Board as the representative of our employees. All our employees are free to become or remain members of United Construction Workers, affiliated with United Mine Workers of Amer- ica, or any other labor organization. BLUEFIELD GARMENT MANUFACTURERS, Employer. Dated------------------------ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT William O. Murdock, Esq., of Cincinnati, Ohio, for the Board. T. H. Price, Regional Director, of Radford, Va., and Charles Skeens, Repre- sentative, of Princeton, W. Va., for the Construction Workers. Julius Hoizberg, Esq., of Cincinnati, Ohio, and Irwin Jaffe, Assistant Regional Director, of Baltimore, Md., for the ILGWU. Mr. Paul C. Trilli, of Bluefield, W. Va., for the respondents STATEMENT OF THE CASE Upon a charge duly filed on July 18. 1946. by United Construction Workers, affiliated with United Mine Workers of America, herein called the Construction Workers, the National Labor Relations Board, herein called the Board, by its Regional Director for the Ninth Region (Cincinnati ,- Ohio ), issued its complaint dated February 5, 1947, against Paul C. Trilli , Mathew Duvo, and Walter Silberg, co-partners doing business as Bluefield Garment Manufacturers, herein called Respondents , alleging that Respondents had engaged in and are engaging in un- fair labor practices affecting commerce, within the meaning of Section 8 (1) BLUEFIELD GARMENT MANUFACTURERS 453 and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein called the Act. Copies of the complaint and charge, together with notices of hearing thereon, were duly served upon Respondents and Construction Work- ers, and upon International Ladies Garment Workers Union, AFL, herein referred to as ILGWU, a party to the proceedings. With respect to unfair labor practices, the complaint alleges that Respondents interfered with, restrained and coerced their employees in the exercise of their rights guaranteed in Section 7 of the Act by, among other things, (a) interrogat- ing their employees concerning their activities on behalf of Construction Workers and other labor organizations; (b) criticizing, maligning, and threatening their employees for engaging in Union activities and signing membership cards in Construction Workers and other labor organizations; (c) threatening to close down their plant before they would recognize and/or deal with a union; (d) permitting, sanctioning, and encouraging the circulation of anti-union petitions among their employees on company property and during working hours ; and that specifically, Respondents further interfered with, restrained, and coerced their employees in the exercise of their rights as guaranteed in Section 7 of the Act, by entering into a recognition and, collective bargaining agreement with the ILGWU at a time when the ILGWU was not the representative of the employees in the unit set forth in said agreement, in that said ILGWU did not represent an uncoerced majority of the employees in such unit, and that said agreement was entered into at a time when Respondents had notice of and knew that Con- struction Workers claimed to represent a majority of the Respondents' mainte- nance and production employees, and that by reason thereof, any agreement so entered into, or any modification, supplement, or renewal thereof is invalid and in violation of the provisions of Section 8 (1) of the Act. Respondents filed no answer, but at the hearing, at which they were represented by one of the partners, made answer to the complaint by denying all the allegations thereof pertaining to unfair labor practices. Pursuant to notice duly served, a hearing was held February 18 and 19, 1947, at Bluefield, West Virginia, before the undersigned, R. N Denham, a Trial Exam- iner duly designated by the Chief Trial Examiner. The Board was represented by counsel; Construction Workers was represented by appropriate officials ; ILGWU was represented by counsel and its assistant regional director; and Respondents were represented by Paul C Trilli, one of the partners All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. At the conclusion of the testimony, the motion of counsel for the Board to amend the pleadings to conform to the proof with respect to the correc- tion of names, dates, and other matters not going to the issues, was granted with- out opposition. Argument was had before the Trial Examiner, and an oppor- tunity was afforded all parties to file briefs and proposed findings of fact and conclusions of law ivith the Trial Examiner within 10 days after the conclusion of the hearing. A motion by counsel for ILGWU to dismiss the proceedings was made at the conclusion of the hearing and taken under advisement. It is now denied. No briefs or proposed findings of fact or conclusions of law have been received from any of the parties. On the basis of the foregoing and on the entire record, after having heard and observed the witnesses and considered all the evidence offered and received, the undersigned makes the following : 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS Respondents are a co-pat tilership consisting of Paul Ti illi, Mathew Duvo and Walter Silberg doing business under the n:iie and style of Bluefield Garment. Manufacturers, with their plant and place of business at Bluefield, West Vir- ginia The principal business carried on by Respondents is the manufacture of women's and children's dresses and sun suits and men's shorts These are manu- factured from material shipped to Respondents by their i espective customer s,. processed by Respondents at their plant in Bluefield and returned to the cus- tomers. In the process of manufacture, Respondents at no time own the mate- rials from which the garments are made, or the finished products, and pi oduce nothing for sale for their own account Respondents have engaged in this busi- ness since February 1, 1946, and during the year immediately following the com- mencement of their operations have received large quantities of cloth and related articles shipped to them from points outside the State of West Virginia and, after having finished the processing operations, have in tin n reshipped the garments in commerce to points outside the State of West Viguua' The value of the an ticles thus received by Respondents and shopped by Respondents in commerce has been in excess of $100,000 It is found that Respondents aie engaged in (onunerce within the meaning of the Act. 11 THE ORGANIZATIONS INVOLVED United Construction Workers, affiliated with the United Mine Workers of America, and International Ladies Garment Wotkeis Union, AFL, :ire labor organizations admitting to membership the employees of Respondents. III THE ALLEGED UNFAIR LABOR PRACTICER In prepaiation foi the opening of operations in Bluefield, West Virginia, oil February 1, 1946, Paul C Trilli, as the resident and managing partner, in late Jaliuary 1946, began to advertise in the local papers for factory help These advertisements attracted the attention of Irwin Jaffe, Assistant Regional Direc- tor of ILGWU, whose teirrtory included Bluefield Jaffe promptly called on Trilli and advised him that as soon as the plant of into opeiation, ILGWU, as it union whose jurisdiction covered the garment making trade. proposed to under- take the organization of Respondent's employees. The record reflects nothing more with reference to this visit. In March 1046, Alva Stewart, then an organizer for Construction Workers, was assigned, along with several other similar assignments, to undertake the organ- ization of Respondents' employees He established contact with several em- ployees, some of whom had relatives who were members of Construction Workers elsewhere, and ultimately obtained 4 signatures to application cards prior to June 20, 1946. During this period, Stewart was occupied in other parts of Vir- ginia and West Virginia, and paid only scant attention to the organization of Respondents' employees, of whom there were approximately 95). Concurrently, ILGWU, in April 1946, assigned Leon Deane to organize Respondents' employees, but Deane contracted an illness and did not begin active efforts along this line until sometime in early June, Stewart had engaged in no publicity and testified that so far as he knew, Trilli had no means of knowing that the Construction Workers were interested in BLUEFIELD GARMENT MANUFACTURERS 455 organizing his employees until the morning of June 20, 1946. Trilli confirmed -this by stating that his first information on this subject came to him on June 20. On Monday, June 17. Deane brought his campaign for membership among Respondents' employees into the open On that da>, for the first time, solicita- tion for signatures on the "white" cards of ILGWU took place within the plant. A substantial number were obtained, but in so doing, the work of the plant was interfered with and production for the day materially decreased. It was on this day that Trilli was first informed by his forelady, a Mrs. Talbert' that the solici- tation and distribution of the "white" cards was taking place During Monday and Tuesday, the interference of these solicitations with plant operations became progressively worse On Tuesday, in his rounds of the plant, Trills warned a number of the employees that they must stop all solicitation during working hours, but such warnings apparently had little effect On Wed- nesday morning, he assembled the employees and told them that if they did not stop the solicitations during working hours, he would close down the plant. He had instructed Talbert to put a stop to it, but his instructions and warnings continued to go unheeded. Sometime during Tuesday, the 18th, Trilh had requested Deane to come to his office and discuss the situation, but Deane refused to do so and during the after- noon of Wednesday, the 19th, began distribution of a scurrilous leaflet which not only was an apparently unjustified attack on Respondents, but which contained a statement that violation of the National Labor Relations Act would involve Respondents in a heavy fine and jail sentence. While the record is incomplete as to what took place at any time between Deane and Trilh, there is sufficient evidence to indicate that Deane was both provocative and abusive toward Trilli. His leaflet of the 19th, which contained statements concerning Respondents for which there appears to have been no foundation in fact, and which also contained a wilful misstatement of the law, is indicative of a total lack of regard for truth in his representations to the employees. However, notwithstanding this general pattern of his approach, lie appears to have suc- ceeded in so affecting the employees that during the first 3 days of the week, June 17, 18, and 19, the production of the plant fell off by 60 percent. By the evening of June 19, lie had obtained at least 30 signatures from among the approximately 95 employees. On the night of the 19th, Trilli telephoned his partner Duvo, in Pennsylvania, and reported Deane's activities When Duvo inquired whether it was hurting the business and Trnllr told him production had dropped 60 percent, Duvo advised Trilli to close the plant until matters had quieted down The next morning, June 20, Trilli assembled the employees at the opening of the work day, told them that he had talked to his partner about the situation and the loss of production, and that the plant would be closed until the union matters had been settled. With this, the entire working force left and spent the next several hours milling around in front of the plant, with Deane present and continuing to solicit memberships. Shortly after noon on June 20, Stewart. T H Price, Regional Dn ector for Construction Workers, and Charles Skeens, Representative, drove into Bluefield. As they passed Respondents' plant, they noticed the crowd of employees gathered at the entrance to the plant and in front of a restaurant or grill across the street, referred to in the record as the "Spanish Grill," and stopped to inquire. At that time they were advised that Deane had been organizing the employees and that "l'albert and Ti ill is wife « ece the only supervisors in the plant other than Trilli. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for some unexplained reason the plant had been shut down and the employees locked out . The Construction Workers' representatives lost no time in circulat- ing among the employees and soliciting signatures to the "blue" cards of that organization . Price also remonstrated with Deane about "raiding" the terri- tory which Construction Workers claimed to have opened previously for organi- zational purposes. Deane refused to stop his activities and for a short while the solicitation by the rivals among the employees was a vigorous one. After about an hour , Price, Stewart, and Deane called on Trilli in his office There they inquired of Trilli what had happened, but the latter was unable to give any clear explanation other than that there had been practically no production in the plant for the past 2 or 3 clays and that because of this , the plant had been closed temporarily These men explained to Trilli that the Construction Workers had an interest in the employees there , and discussed the desirability of getting the employees back to work . Deane's activities were also discussed, in the course of which conversation , Price requested Trilli not to recognize any labor organization as representative of the employees until the matter had been determined by an appropriate Board election. When Trilli agreed to da this, the Construction Workers' representatives left the office, Price returning to his headquarters in Beckley, Virginia , and Stewart and Skeens remaining in Bluefield. Upon arriving at Beckley , Price reported to his superior who immediately dis- patched a telegram to Respondents and concurrently filed a petition with the Board for investigation and certification as the representative of the employees of Respondent.2 On June 20 , Deane communicated with Jaffe who was then in Baltimore. Jaffe proceeded immediately to Bluefield, arriving late in the afternoon of Julie 20, and went direct to Trilli 's office where he and Trilli discussed the events of the day. Jaffe told Trilli that ILGWU represented a majority of the em- ployees and intended to negotiate a contract with Respondents . At this time, however, Trilli told him that Price and the other representatives of the Con- struction Workers had been in to see him a few hours before and also claimed to represent the employees. Jaffe scoffed at their representation and advised Trilli that he need pay no attention to them and that in any event they could do ndthmg unless they filed a petition with the Board within 10 days. The next day, Jaffe, with Deane, called on Trilli and had in their possession , according to Jaffe's and Trilli's testimony , approximately 60 cards signed by employees of Respondents which they exhibited to Trilli. Trilli made a hasty examination of the cards , recognized that they bore names of his employees and agreed to enter into a temporary union shop contract , and automatic check-off agreement 2Tiilli testified that he left town on June 21, after transacting some business with ILGWU which will be hereinafter referred-to; that he was away during the entire week- end ; and that when he returned on the following Sunday, June 23, lie was told by his brother-in-law, who lived in the same house, that a telegram had been received from the Constiuction Workers advising him that they were filing a petition with the Board. Whether such a telegram was received by Trilli or whether any further communication was received by Trilli from Construction Woikers following the meeting with Price. Stewart and Deane on June 20, is immaterial since the conveisatioi between this group and Trilli on the 20th is confirmed by Trilli to have been substantially as testified to by Stewart, Skeens, and Price, and constituted full and adequate notice of substantial claims to representation by Construction Workers at that time. It is to be noted that during these conversations, Trilli at no time questioned the claims of Price that the Construction Workers represented a substantial interest among the employees and made no request for a show of cards or other evidence of representation. BLUEFIELD GARMENT MANUFACTURERS 457 with the ILGWU.e The contract was typed by Jaffe in Trilli's office and imme- diately executed by Jaffe and Trilli, but provided that a regular form of contract would be subsequently prepared and executed by the parties. However, the contract so executed contained, in addition to the union shop recitals which became effective as to all employees after being on the job six (6) weeks, a provision that the employer, shall pay 1%% of the total payroll of the employees corning under this agreement each week and send this money to the office of the union in Baltimore monthly this sum for the purpose of giving his employees the benefits of the health and sickness fund now operated by the union and the employers at this district. Concerning the automatic check-off, the contract provided as follows: The employer will deduct all initiation fees, dues and assessments weekly. and forward same to the Baltimore office in the manner worked out with the Union. Pursuant to the provisions of the contract, the deductions for initiation fees, clues, and assessments were automatically made by Respondents each week with- out special authorization from any of the employees except as the same was incorporated in the application cards, which were not deposited with Re- spondents. The plant does not operate on Saturday, but on the Monday following the signing of the contract on Friday, June 21, the employees returned to work and the operations were resumed but with continuing discord among the employees and its inevitable effect on production. On July 2, 1946, approximately 18 of the employees who had not signed cards with ILGWU were called to the office at Jaffe's insistence. The provisions of the closed-shop agreement were ex- plained to them and they were instructed to sign the ILGWU cards. About a half a dozen refused to do so: However, these persons were not thereafter, disturbed in their employment and at least two of them were still working foi Respondents at the time of the hearing. This compulsory signing of ILGWU cards served to further the discord in the plant, with the result that rumors soon made their appearance that Trilli would not continue operations if lie had to do business with ILGWU. As a result, on July 9 or 10, some of the employees began the circulation of a petition headed as follows : WE WANT PEACE IN OUR FACTORY VOTE OUT THE UNION AND WORK WITH OUR MANAGER This petition was signed by approximately 75 of the 95 employees, at least one or two of whom signed only after being urged to do so by Respondents' super- visor, Talbert, who is reported to have said that Trilli had told her he would 3 ILGWU produced 60 cards at the hearing , 27 of which were dated June 17, 2 were dated June 18, 1 was dated June 19, 8 were dated June 20, and 22 were undated. Subse- quent to June 20, in connection with the Board 's investigation on the representation peti- tion, ILGWU had exhibited to the Board's representative, 27 cards dated June 17, 2 dated June 18, 1 dated June 19 , 5 dated June 20, and 17 undated, in addition to 25 cards dated subsequent to June 21. The Construction Workers exhibited to the Trial Examiner at the hearing, 21 cards of which 17 were dated June 20 , and 4 were dated prior to that date In going through these cards but without conducting a detailed check, the Trial Examiner observed that many persons had signed both the cards of the Construction Workers and the ILGWU. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not go on with the Union Talbert's activities in promoting the petition do not appear to have become evident until most of the signatures had already been obtained by the two employees who were most active in its circulation On June 10, 1946, Ella Richardson, the petition's most active proponent, certi- fied to the signatures before a notary public and later in the morning of that day presented it to Trill! Trill refused to accept the petition when it was pi esented to him, but in some manner it calve into the possession of the office stenographer who kept it overnight in the office cash box ' During the late afternoon of July 10, at Talbert's insistence, sonic of the other employees went to the office after working hours and signed the petition in the presence of Mrs. Trilli and the office stenographer. Trilli denied any knowledge of the circulation of the petition until it was offered to him by Richardson on the morning of June 10, and likewise denied knowledge of it having ever been kept in the office for signature. There ap- pears, however, to be no question but that it was kept in the office and that addi- tional signatures were solicited by Talbert and appended to the petition in the presence of Mrs. Trilli. Trilli, who had had some contact with the ILGWU while working elsewhere in a supervisory capacity, clearly was not pleased with the prospect of a union coming into the shop ; with the attitude Deane had taken toward him, which apparently was of an offensive and insulting nature. and with the literature passed out by Deane which was equally inexcusable The record does indi- cate, however, that he was reconciled to it and that his displeasure was chiefly directed at Deane. In talking to the employees in his speech on Wednesday," he made this feeling evident and advised the women that whereas they were then working on hourly rates regardless of production, if the union came in he would have to put them on piece work, and that they would then make only a very small amount per day, based on the rate of production they were turning out. Clearly the union activity which was interfering with production was 'a source of annoyance and concern to Trilli, and it appears that it was this loss in production rather than direct antipathy to the Union which motivated the shut-down of June 20 after Trilli's conference by telephone with his partner, Duvo. It is found, however, that in his heated remarks to the employees on the morn- ing of the 19th, Trilli went beyond the permissible bounds of warning them against union activities on company time which might force him to close the plant, when he called attention to the fact that the coming of the Union might result in it piece rate instead of hourly pay which Mould work to their sub- stantial disadvantage This might or might not have been tine, depending on the nature of contract ultimately entered into, but at that stage, such remarks take on it coercive color that is without the protection of "free speech," and constitute an interference with the rights guaranteed emplovees in Section 7 of the Act 6 The record is contused as to whether his first talk was on Tuesday or Wednesda's but the related facts tend to fix it as Wednesday 5 In making the foregoing finding, there is no intention to find that the employer was helpless to take any piotectiie action when his operations were being seriousl's mterfeied with by union activities during working hours, especially when, as here, he had vigorously warned the employees against such activities and told them that unless they were stopped lie would shut clown the plant until the matter could be settled It is undenied that pro- duction was being seriously interfered with and it is neither charged nor too mud that the shot-down of June 20 was an unfair labor practice BLUEFIELD GARMENT MANUFACTURERS 459 While the threat to close the plant until the union matters had been settled was not, under the circumstances, an unfair labor practice, it left an impression that the very existence of the ILGWU in the plant was a threat to continued operation That this was so, is evidenced by the petition of July 10 which car- ried the signatures of approximately 75 of the 95 employees. Whether Trilli actually inspired or participated in the circulation of the pe- tition is immaterial. It obviously was promoted by his acknowledged supervisors, Talbert and Mrs. Trilli. Such a petition, spontaneous in its origin and carried through to its final presentation by non-supervisory employees, would represent an activity not entitled to criticisms as being in contravention of the provisions of the Act ; but. whether the ILGWU had been legitimately installed or other- wise, the circulation of such a petition under the sponsorship of management is an obvious interference with the rights of the employees freely to choose their own bargaining representative. It is found that there was such sponsorships and that it constituted an interference with, restraiiit, and coercion of the employees in the exercise of the rights guaranteed in Section 7 of the Act. In the cases of Elastic'Stop Aran Co•poi ation, 51 N. L. R. B 694; Keystone Steel grad Dire Cona-pany, 62 N. L R. B 653, and Midwest Piping wad Supply Coin- pany, Inc. 63 N L R B 1060, and in numerous subsequent cases, the Board has stated and reiterated that where a neutral employer is confronted with conflict- ing representation claims by two rival unions he "would not negotiate contracts with one of them until its right to be recognized as the collective bargaining rep- resentative had been finally determined under the procedure set up under the Act " In those cases the Board has adhered closely to the proposition that, by executing a union-shop or a closed-shop agreement with one of two contestants in the face of the known and substantial claims of the other, the employer has not only indicated his approval of the first organization, but has accorded it unwarranted prestige, encouraged membership therein and discouraged mem- bership in the other, and thereby has rendered unlawful assistance to the organi- zation with whom it had entered into a contract, which interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. That remains the rule today. In the instant case, Respondents were fully advised by Prance on June 20 that the Construction Workers represented a substantial number of the employees of Respondents and proposed to take steps to have the question of representation of the employees determined by the orderly processes provided in the Act. Under such ciicumstances, notwithstanding the TLGWU may have presented to Trilli on the following day, a number of cards purporting to have been signed by a majority of the employees, Respondents were under an obligation to refrain from recognizing either of the contestants as the exclusive bargaining representative of their employees an any appropriate unit until a formal determination of repre- sentation had been made by the Board When Trilli, on June 21, entered into a union-shop contract with ILGWU which required all employees, after 6 weeks of employment, to become and iemain members of ILGWU as a condition of their employment, and in addition thereto agreed to and clad in fact deduct from the pay of Respondents' employees an amount of money representing the initiation fee for membership in such Union and the weekly dues,° Respondents thereby aided and assisted the ILGWU by lending it prestige, and, by such action, and by requiring, on July 2, 1946. that their employees who had not done so, become members of ILGWU when in fact there was another labor organization concur- The initiation fee was $3 and the weekly dues was 45 cents 460 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD rently asserting a claim to represent them, interfered with, restrained, and coerced their employees in the exercise of the rights guaanteed in Section 7 of the Act.' While the application cards of ILGWU that were signed by Respondents' employees contained authorization for an automatic check-off of initiation fees and dues, it is .obvious that such a provision could in no event become operative until and unless a valid contract had been entered into by ILGWU on behalf of the signators, with their employer. Here there has been no such contract. In such case, there can be no validity in any action taken by either ILGWU or the employer with reference to such a deduction from the earned pay of the employees . To make such a deduction in these circumstances constitutes further action and direct interference, restraint, and coercion of the employees in the exercise of the rights guaranteed in Section 7 of the Act. It is to be noted that under the provisions of the contract , Respondents further agreed to contribute to ILGWU an amount equal to 11/ percent of the weekly pay roll of its employees covered by the contract, as a contribution to the wel- fare fund of ILGWU. While such a provision in a contract with a labor organi- zation freely chosen by the employees as their representative for purposes of collective bargaining in conformity with the provisions of the Act , may be an appropriate matter for collective bargaining and inclusion in a contract without being in violation of the provision of the Act which proscribes conti ibutions by an employer to a labor organization , under the circumstances found here, where the contract was entered into in violation of the provisions and intent of the Act, such a contribution clearly constitutes financial assistance that is contrary to the provisions of the Act . Whether it can be or should be the subject of direct remedial action by the Board , other than to "cease and desist" has never, within my knowledge , been before the Board for consideration. IV. THE EFFECT OF THE UNFAIR LABOR PRACIICEB UPON COMMERCE The activities of Respondents set forth in Section III, above, occurring in connection with the operations of Respondents 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 thereof V. THE REMEDY Having found that Respondents have engaged in unfair labor practices within the meaning of the Act, it will be recommended that they cease and desist there- from, and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondents have unlawfully assisted the ILGWU and interfered with the Construction Workers, by recognizing and entering into a union-shop contract with the ILGWU as the exclusive representative of its pro- duction and maintenance employees at a time when Construction Workers, ill good faith , claimed to represent a substantial number of Respondents' em- ployees. Obviously, a free selection' of a bargaining representative cannot be made where recognition and a contract has been accorded to one of two compet- 7 In view of the foregoing , it is not deemed necessary to pass on the question of whether ILGWU represented a majority of the employees in an appropriate unit when the contract was made Under the foregoing finding, the contract must fall without regard to the num- ber of employees who may have signed authorization or application cards of ILGWU. BLUEFIELD GARMENT MANUFACTURERS 461 ing unions before such representation has been definitely determined by the recognized processes. It will accordingly be recommended that Respondents cease and desist front recognizing the ILGWU as exclusive representative of any of their employees , unless and until it shall have been certified as such by the Board. Since the contract of June 21, 1946, perpetuates Respondents' unlawful assistance to the ILGWU and precludes the employees from freely exercising their right to select a collective bargaining representative of their own choice, it will be further recommended that Respondents cease giving effect to such con- tract or to any extension, renewal, modification, or supplement thereof, unless and until the ILGWU shall have been certified by the Board as the exclusive representative of the employees described in said contract . Nothing herein, how- ^ever, shall be construed as requiring Respondents to vary any wage, hour, or other substantive feature of its relations with the employees themselves, which Respondents have established by the terms of this contract, or to prejudice the position of the employees as to any rights they might have had under such agreement. Since, under the provisions of such contract which it has been found is un- warranted as an interference with the fight of the employees guaranteed In Section 7 of the Act , the employees have been improperly deprived of certain sums withheld from their weekly pay and made over by Respondents to ILGWU, resulting in both an illegal and unjust -deprivation to the employees of their property, and an illegal and unjust enrichment of the ILGWU to the extent of monies so paid at the expense of the employees , it will be recommended that Respondents forthwith reimburse to each of their employees from whose pay deductions have been made on account of initiation fees, dues , and assessments to the ILGWU, all amounts so deducted and withheld from such employees. Since the Act contains no provision or authorization for the issuance by the Board of an order directed to anyone other than an employer charged with un- fair labor practices requiring affirmative action to be taken, no recommenda- tion may be made to require the ILGWU to make refund either to Respondents or to the employees of the money paid over to it, either as initiation fees, dues, and assessments withheld by Respondents from the weekly pay of their em- ployees, or the 11/_ percent of the weekly pay roll paid over by Respondents to the ILGWU under the provisions of the contract above referred to, as a con- tribution to the ILGWU welfare fund. The act provides the Board with no authority to reestablish the status quo in these respects except as to the em- ployees effected, and since these transactions are the result of a contract en- tered into in violation of the provisions of the Act by Respondents and ILGWU, the readjustment , if any, of the situation so created as between Respondents and the ILGWU must, of necessity, be worked out between them and without interference by the Board. Upon the foregoing findings of fact and upon the entire record of the case, the undersigned reaches the following: CONCLUSIONS OF Law 1. United Construction Workers, affiliated with United Mine Workeis of America, and International Ladies Garment Workers Union, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act RECOMMENDATIONS On the basis of the foregoing Findings of Fact and Conclusions of Law, and upon the entire record, the undersigned recommends that : Respondents, Paul C. Trilli, Mathew Duvo and Walter Silberg, co-partners doing business as Bluefield Garment Manufacturers, and their representatives, agents, successors, and assigns shall: 1. Cease and desist from : (a) Recognizing International Ladies Garment Workers Union, AFL, as the- exclusive representative of any of their employees at then plant in Blue- field, West Virginia, for the purposes of collective bargaining, unless and until said organization shall have been certified by the National Labor Relations Board as the exclusive representative of such employees ; (b) Giving effect to their contract dated June 21, 1946, with International Ladies Garment Workers Union, AFL, and every provision thereof, or to any extension, renewal, modification, or supplement thereof, or to any super- seding-contract with that labor organization, or any organization or affiliate thereof, unless and until said organization shall have been certified by the Board as the representative of the employees of Respondents at their plant in Bluefield, West Virginia. (c) In any like or related, manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Construction Workers, affiliated with United Mine Workers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act : (a) Withdraw.and withhold all recognition of International Ladies Garment Workers Union, AFL, as the exclusive representative of any of its employees at their plant in Bluefield, West Virginia, for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and any conditions of employment, unless and until said organization shall have been certified by the National Labor Relations Board as the representative of such employees ; (b) Refund forthwith to all their employees from whose weekly wages Re- spondents have at any time made deductions and withheld funds pursuant to the provisions of the contract of June 21. 1946, all such deductions and withholdings representing initiation fees, dues, or assessments charged by International Ladies Garment Workers Union, AFL, to the end that such employees and each of these shall be promptly, fully, and completely reimbursed for all monies so deducted and withheld; (c) Post at their plant in Bluefield, West Virginia, copies of the notice attached hereto marked "Appendix A " Copies of said notice, to be furnished by the Re- gional Director of the Ninth Region shall, after being duly signed by the Respond- ents' representative, be posted by Respondents immediately upon receipt thereof, and maintained for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily BLUEFIELD GARMENT MANUFACTURERS 463 posted Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Fourteenth Region in writing within ten (10) clays from the receipt of this Intermediate Report what steps Respond- ents have taken to comply herewith. It is further recommended that, unless Respondents shall within ten (10) days from the receipt of this Intermediate Report notify said Regional Director in writing that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Respondents to take the action aforesaid. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board. Series 4, effective September 11, 1946, any party or coun- sel for the Board may, within fifteen (15) days from the date of service of the order transferring this case to the Board, pursuant to Section 203 38 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to this Intermediate Report or to any other part of the record or proceeding (including rulings upon All motions or objections) as lie relies upon, together with the original and four copies of a brief in support thereof; and any party or counsel for the Board may, within the same period, file an original and four copies of a-brief in support of this Intermediate Report Immediately upon the filing of such statement of exceptions and/or briefs, the party-or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a 'copy with the Regional Director. Proof of service on the other parties of all palters filed with the Board shall be promptly made as required by Section 203 65 As further provided in said Section _203.39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within tell (10) days from the date of service of the order transferring the case to the Board R N DENHAM. Ti ial Eaamitter. Dated March 27, 1947 APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the reconiniendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that' WE WILL NOT recognize INTERNATIONAL LADIES GARMrENT WORKERS UNION, AFL, as exclusive representative of any of our employees at our plant in Bluefield, West Virginia , for the purposes of collective bargaining, unless and until said organization shall have been certified by the National Labor Relations Board as the representative of such employees WE WILL NOT give effect to our contract dated June 21, 1946 , with INTER- - NATIONAL LADIES GARMENT WORKERS UNIoN,. AFL, or to any exten- sion, renewal , modification, or supplement thereof or to any superseding contract with said labor organization , unless and until said organization shall have been certified by the National Labor Relations Board as the representative of the employees at our plant in Bluefield , West Virginia. WE WILL forthwith reimburse to each and every of our employees from whose weekly or other pay we have at any time withheld any funds as 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD initiation fees, dues, or assessments payable to INTERNATIONAL LADIES GAR- MENT WORKERS UNION, AFL, all sums so deducted or withheld, to, the end that each and every one of our employees fioni whose wages such deductions have been so withheld, are promptly, fully, and completely re- imbursed for all such deductions and withholdings. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist UNITED CONSTRUCTION WORK- ERS, AFFILIATED WITH UNITED MINE WORKERS OF AMERICA, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. All our employees are free to become or remain members of the United Con- struction Workers, affiliated with United Mine Woikeis of Ameiica, or any other labor organization We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against said employees because of membership in or activities on behalf of such labor organizations. BLUEFIELD GARMENT MANUFACTURERS, Employer. By -------------------- ----------------- (Representative ) (Title) Dated ------------------------ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.