Seamprufe, Inc.

In the Matter of SEAMPRIIFE, INCORPORATED and INTERNATIONAL LADIES GARMENT WORKERS UNION, AFL In the Matter of MAVIS LANE AND INTERNATIONAL LADIES GARMENT WORKERS UNION, AFL and SEAMPRUPE, INCORPORATED Cases Nos. 16-CA-39 and 16-CB-1, respectively. Decided April 8, 1949 DECISION AND ORDER On September 10, 1948, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent in Case No. 16-CA-39, Seamprufe, Incorporated,, McAlester, Oklahoma, had engaged and was engaging in certain un- fair labor practices, and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, exceptions to the Intermediate Report, insofar as it related to Case No. 16-CA-39, together with supporting briefs, were filed by Seamprufe, Seamprufe Employees' Association, and by Mavis Lane and International Ladies Garment Workers Union, AFL.2 In Case No. 16-CB-1, the Trial Examiner, for reasons set forth in the attached Report, recommended dismissal of the complaint against Mavis Lane and the Union. Exceptions to the Trial Examiner's find- ings and recommendations in this case, together with supporting briefs, were filed by Seamprufe, the General Counsel for the Board, and by Lane and the Union.' The Board has reviewed the rulings made by the Examiner at the hearing and finds that no prejudicial error was committed.4 To the i Hereinafter called Seamprufe. 2 Hereinafter called the Union. 8 The exceptions of Lane and the Union were addressed only by certain of the Examiner's findings. * Exception was taken by Seamprufe and by Seamprufe Employees' Association (here- inafter called the Association ) to the order consolidating the two cases herein . Section 203.33 of the Board Rules and Regulations , Series 5, authorizes consolidation of cases by the General Counsel "whenever he deems it necessary to effectuate the purposes of 82 N. L. R. B., No. 106. 892 SEAMPRUFE, INCORPORATED 893 extent that they are consistent with this Decision and Order, the Board adopts the findings, conclusions, and recommendations of the Trial Examiner. Case No. 16-CA-39 The Trial Examiner found that Seamprufe violated Section 8 (a) (2) of the Act by dominating, interfering with the formation of, and contributing support to, the Association. He accordingly recom- mended that Seamprufe be required -to withhold recognition from, and to disestablish, the Association. We agree with the Examiner's finding that Seamprufe contributed support to the Association, as set forth in the Intermediate Report, in violation of Section 8 (a) (2) of the Act. However, on the par- ticular facts of this case, we do not agree with the Examiner's finding that Seamprufe's conduct amounted to domination of the Association. In accordance with the Board's policy enunciated in the Carpenter Steel 5 and Hershey Metal Products 6 decisions, we shall order Seamprufe to cease and desist from contributing support to the Asso- ciation or to any other labor organization, and to withhold recognition from the Association unless and until it shall have been certified by the Board, but we shall not order disestablishment of the Association. In all other respects, we agree with and adopt the Examiner's find- ings and recommendations in this case, and unanimously hold that Seamprufe violated Section 8 (a) (1) and (3) of the Act, as well as Section 8 (a) (2).7 the Act or to avoid unnecessary costs, or delay." In Case No. 16-CA-39 charges of unfair labor practices were filed by the Union against Seamprufe. In Case No. 16-CB-1 charges of unfair labor practices were filed by Seamprufe against Lane as agent of the Union. The locale of the alleged unfair labor practices in both cases was the same and in many instances the same witnesses testified at the hearing before the Examiner as to the subject matter of both cases. We believe, therefore, that the consolidation order was proper under the Board Rules. Seamprufe contended that, in presenting at the same hearing the case against Seamprufe as well as the case against the Union , the General Counsel of the Board was in the unseemly position of representing conflicting interests in the same proceeding . However, this contention overlooks the fact that the General Counsel represents , not private parties, but the public interest . Moreover, we can find no support in the record for the claim of Seamprufe and the Association that they were prejudiced by the consolidation of these cases for hearing purposes. The Association excepts, also , to the Examiner 's denial of its motion to dismiss the 8 (a) (2) allegations of the complaint in Case No . 16-CA-39, which motion was based on the failure of the Regional Director to serve the Association with a copy of the complaint and notice of hearing , as required by Sections 203.15 and 203.8 of the Board Rules and Regulations, Series 5. However, we believe that any error in this respect was cured by the Examiner's action in granting the Association a continuance of the hearing from June 11 to June 23, 1948, to permit it to prepare its case. 8 Matter of The Carpenter Steel Company, 76 N. L. R. B. 670. 'Matter of Hershey Metal Products Company, 76 N. L. R. B. 695. See also, Matter of James R. Kearney Corporation, 81 N. L. R. B. 26. 4 Member Houston does not agree with the finding that the Association was not domi- nated by the Respondent , Seamprufe. He believes the evidence is sufficient to warrant an order completely disestablishing the Association. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Case No. 16-CB-1 In this case the Trial Examiner dismissed the complaint as to the Union, on the ground that it was not sufficiently designated in the charge filed by the Employer. We agree, and regard Mavis Lane, an individual, as the sole Respondent in the case arising under Sec- tion 8 (b) of the Act." We agree also with the Examiner's findings as to the substance of the statements made by Lane. at the mass meeting of December 6, 1947. However, we disagree with his conclusion that these state- ments were not coercive. The proper test under the amended Act is whether Lane's statements were reasonably calculated to coerce the members of her audience in the exercise of their statutory right not to join the Union or to refrain from concerted activities on behalf of the Union.9 In the instant case, Lane told her audience that when the Union organized the plant "those who do not join the Union will eventually lose their jobs." In the Smith Cabinet case a majority of the Board held that a similar threat, standing alone, was coercive, "because it was a threat of loss of employment reasonably calculated to have an effect on the listener without regard to the question of the Union's ability to carry out the threat." We are unable to distinguish Lane's threat of loss of employment from the like threat in the Smith Cabinet case. Moreover, such threat does not stand alone here, as it did in the Smith Cabinet case. It must be appraised in the context of Lane's other statement, addressed specifically to Michie, a member of the audience who was manifestly hostile to the Union, that "we have ways of handling people like you that argue against the Union." The latter statement could not fail to underscore the militancy of the Union, heightening the coercive effect of the prior threat of loss of employment. Moreover the statement of Lane last quoted is itself coercive, par- ticularly when read in the light of the prior threat of loss of employ- ment. Both statements, taken together, give an impression of a fixed determination by an organized group, represented by Lane, to take punitive action against any one who opposed, or did not support, its program. Such statements would in our opinion be reasonably cal- culated to coerce anti-union or non-union members of Lane's audience in the exercise of their right, under the amended Act, to refrain from joining the Union. Accordingly, we find, contrary to the Trial Exam- 8 Chairman Herzog dissents from this holding, which he regards as unduly technical. The charge was directed against "Mavis Lane, Representative of the ILGWU." 8 Matter of Smith Cabinet Manufacturing Company, Inc., 81 N. L. R. B. 138 ; Matter of Sunset Line and Twine Company, 79 N. L. R. B. 1487. Legislative history on this subject is to be found at 93 Cong. Rec. 4142 ( Senator Taft ) and 4559 ( Senator Ball ), 80th Cong., 1st Sess. SEAMPRUFE, INCORPORATED 895 iner, that both the statements quoted above from Lane's speech vio- lated Section 8 (b) (1) (A) of the Act."' ORDER In Case No. 16--CA-39 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 Respondent Seamprufe, Incor- porated, McAlester, Oklahoma, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Ladies Garment Workers Union, AFL, or in any other labor organization, by dis- charging employees or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment; (b) Contributing support to Seamprufe Employees Association or to any other labor organization of its employees; (c) Interrogating employees in respect to their membership in, activity in behalf of, or sympathy for International Ladies Garment Workers Union, AFL, or any other labor organization, offering wage increases or other benefits in order to persuade employees to favor or disfavor any labor organization, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Ladies Garment Workers Union, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer Virginia Romeo Webb and Edna Clendenon immediate and full reinstatement, each to her former or substantially equivalent '* Chairman Herzog and Member Houston find nothing "coercive" within the meaning of Section 8 (b) (1) (A) in the statements relied upon by the majority. Consequently, they would have dismissed the complaint as against Lane if this were a matter of first impres- sion. However, they construe the majority opinion in the Smith Cabinet case as having so comprehensive a character as to be a controlling precedent on facts so indistinguishable as those present here. Deeming themselves bound , they express no formal dissent in this case. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD position, without prejudice to her seniority, and other rights and privileges ; (b) Make each of the above-named individuals whole for any loss of pay she may have suffered by reason of Seamprufe's discrimination against her, by payment to each of them of a sum of money equal to the amount each normally would have earned as wages from the date of such discrimination to the date of Seamprufe's offer of reinstate- ment, less the net earnings of each during said period; (c) Withhold recognition from Seamprufe Employees Association as the representative of any of Seamprufe's employees for the pur- pose of dealing with it in matters of grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employ- ment, unless and until such organization shall have been certified as such representative by the Board; (d) Post at its plant in McAlester, Oklahoma, copies of the notice attached hereto, marked "Appendix A." 11 Copies of said notice, to be supplied by the Regional Director for the Sixteenth Region, shall, after being duly signed by Seamprufe, be posted by it immediately upon receipt thereof and be maintained by it for at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees customarily are posted. Reasonable pre- cautions shall be taken by Seamprufe to insure that such notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Sixtenth Region (Fort Worth, Texas), in writing, within ten (10) days from the date of this Order, what steps Seamprufe has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein, insofar as it alleges that Seamprufe dominated the Seamprufe Employees As- sociation and engaged in surveillance, be, and it hereby is, dismissed. In Case No. 16-CB-1 Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Mavis Lane, agent of Interna- tional Ladies Garment Workers Union, AFL, shall : 1. Cease and desist from threatening employees of Seamprufe, Incorporated, McAlester, Oklahoma, with loss of employment or other reprisals if they do not join, or if they oppose, International Ladies Garment Workers Union, AFL, or any other labor organization, and from restraining or coercing said employees in any like or related ' In the event this Order is enforced by decree of a United States Court of Appeals, there shall be inserted in, the notice, before the words , "A DECISION AND ORDER," the words "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." SEAMPRUFE, INCORPORATED 897 manner in the exercise of the rights 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 : (a) Copies of the notice attached hereto, marked "Appendix B," 12 to be furnished by the Regional Director for the Sixteenth Region, shall, immediately upon receipt thereof, be duly signed by Mavis Lane and shall be posted and maintained by her, for a period of sixty (60) consecutive days thereafter, in conspicuous places in the local business office of International Ladies Garment Workers Union, AFL, at Mc- Alpster, Oklahoma, where notices to members are customarily posted. Reasonable steps shall be taken by her to insure that said notices are not altered, defaced, or covered by any other material. (b) Additional copies of the notice attached hereto, marked "Ap- pendix B," to be furnished by the Regional Director for the Sixteenth Region, shall be signed by Mavis Lane and shall be forthwith returned by her to the Regional Director. The notice shall then be posted, Seamprufe willing, on the bulletin board of Seamprufe, where notices to employees are customarily posted, and shall remain posted for a period of sixty (60) consecutive days thereafter. (c) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent, Mavis Lane, has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it related to International Ladies Garment Workers Union, AFL. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Laboi st,ela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL WITHHOLD all recognition from SEAMPRUFE EM- PLOYEES ASSOCIATION as the representative of any of our em- ployees for the purpose of dealing with us concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment unless and until said organization shall have been certified by the National Labor Relations Board. ua If the Order in Case No. 16-CB-1 is enforced by a decree of a United States Court of Appeals, Appendix B shall be amended as indicated in footnote 11, above. 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT contribute support to SEAMPRUFE EMPLOYEES AssocIATION or to any other labor organization. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Virginia Romeo Webb Edna Clendenon WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist INTERNATIONAL LADIES GARMENT WORKERS UNION, AFL, or any other labor organization, to bargain collectively through represent- atives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. All our employees are free to become or remain members of this union, 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 any employee because of membership in or activity on behalf of any such labor organization. SEAMPRUFE, INCORPORATED, Employer. By ------------------------------ (Representative ) (Title) Dated-------------------- This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL MEMBERS OF INTERNATIONAL LADIES GARMENT WORKERS UNION, AFL, AND TO ALL EMPLOYEES OF SEAMPRUFE INCORPORATED, MCALESTER, OKLAHOMA 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, I hereby notify members of International SEAMPRUFE, INCORPORATED 899 Ladies Garment Workers Union, AFL, and employees of Seamprufe, Incorporated, McAlester, Oklahoma, that : I WILL NOT threaten employees of Seamprufe, Incorporated, McAlester, Oklahoma, with loss of employment or other reprisals if they do not join, or if they oppose, International Ladies Gar- ment Workers Union, AFL, or any other labor organization, and I will not in any like or related manner coerce or restrain said employees in the exercise of the rights guaranteed in Section 7 of the Act, as amended. MAVIS LANE. Dated-------------------- This notice must remain posted for sixty (60) consecutive days, from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER E. Don Wilson, Esq., of Forth Worth, Tex., for the General Counsel. Cornish & Baumert, by William Cornish, Esq., and John B. Baumert, Esq., of McAlester, Okla., and Nathaniel H. Janes, Esq., of New York City, for Seamprufe. Mullinav, Wells & Ball, by L. N. D. Wells, Esq., of Dallas, Tex., and Preslie Brown, Esq ., of McAlester, Okla., for the Union and Mavis Lane. Arnote, Arnote & Bratton, by James B. Bratton, Esq., of McAlester, Okla., for the Association. STATEMENT OF THE CASE Upon a charge duly filed in Case No. 16-CB-1 by Seamprufe, Incorporated, McAlester , Oklahoma, herein called Seamprufe , alleging that Mavis Lane, representative of the International Ladies Garment Workers Union , had violated Section 8 (b) (1) of the National Labor Relations Act, 49 Stat . 449, as amended by Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act, and upon a first amended charge duly filed in Case No. 16-CA-39 by International Ladies Garment Workers Union, herein called the Union , alleging that Seam- prufe had violated Section 8 (a) subsections ( 1), (2), and (3) of the Act, the General Counsel of the National Labor Relations Board herein called the Board, by the Regional Director for the Sixteenth Region ( Fort Worth, Texas ), issued on May 25, 1948, a complaint on each charge and an order consolidating the cases. Copies of the complaints , the order of consolidation, and a notice of hear- ing were served upon Seamprufe and the Union. With respect to unfair labor practices , the complaint in Case No . 16-CB-1 alleged in substance that Mavis Lane and the Union on or about December 6, 1948, restrained and coerced employees of Seamprufe in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8 (b) (1) of the Act. In Case No. 16-CA-39, the complaint as amended at the hearing alleged , in sub- stance, that on and since November 25, 1947, Seamprufe by interrogating its employees concerning union affiliation , by threatening and warning them to re- frain from union activity , by keeping the meeting place of the Union under 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD surveillance,' and, by means of threats, urging its employees to assist Seamprufe Employees Association, herein called the Association, violated Section 8 (a) (1) of the Act ; by initiating, forming, sponsoring, assisting, dominating, and con- tributing support to the Association violated Section 8 (a) (2) of the Act; and by the discharge on November 26, 1947, of Virginia Romeo Webb 2 and on January 2, 1948, of Edna Clendenon because those two individuals joined or assisted the Union, violated Section 8 (a) (3) of the Act. Pursuant to notice, a hearing was held upon both complaints at McAlester, Oklahoma, from June 7 through June 11 and June 23 through June 25, 1948, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. On the opening day of the hearing, counsel for the Association requested and was granted permission to intervene. His motion for a continuance because the Association had not been served with the charge, complaint, and notice of hear- ing in Case No. 16-CA-39 was denied but upon reconsideration was granted on June 11 when a recess was taken to June 23. All parties were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. Evidence was taken first in support of the complaint in Case No. 16-CB-1, then in support of that in 16-CA-39 following which the defense of the Union, Seamprufe, and the Association was offered. The undersigned stated on the record that he would consider the record as a whole in making his findings, conclusions, and recommended order and would rely for that purpose on any relevant and probative evidence appearing in the record offered in connection with either complaint. In its answer, and at the opening and close of the hearing, counsel for the Union moved to dismiss the complaint against it in 16-CB-1 on the ground that it was not based upon a charge. I denied the motion contained in the answer and when first raised at the hearing, but reserved ruling when, at the close of the hearing, the motion was renewed. The Board's Rules and Regulations provide in accordance with the command of the Act that a complaint may issue only "after a charge has been filed" and further provide in Section 203.12 (c) that the charge must recite "The full name and address of the person against whom the charge is made. . . .. Counsel for the Union contends that such a charge, naming it, was not filed in 16-CB-1. The charge in that case reads in part as follows : Pursuant to Section 10 (b) of the National Labor Relations Act, the under- signed hereby charges that Mavis Lane, Representative of the International Ladies Garment Workers Union at McAlester, Oklahoma has (have) engaged in and is (are) engaging in unfair labor practices within the meaning of Section 8 (b) subsections (1) of said Act, in that: . . . [Emphasis supplied.] Upon the basis of this charge a complaint was issued against both Lane and the Union. Clearly, the charge does not name the Union as a "person" charged. The name of the Union following that of Lane can reasonably be interpreted only as descriptive of Lane, attributing to her a status as agent without which she could not be charged with a violation of any provision in Section 8 (b) .3 The 1 A motion by the General Counsel made at the hearing to dismiss this allegation was denied when counsel for the Union asserted that he would adduce evidence to support it. 2 Named in the charge and in the complaint before amendment as Virginia Romeo. ' Under this section the Act provides that, "It shall be an unfair labor practice for a labor organization or its agents -" [emphasis supplied ], to perform certain acts. SEAMPRUFE, INCORPORATED 901 Act contemplates that a labor organization or its agents may be charged with an unfair labor practice, jointly or severally. I conclude that in 16-CB-1 only Mavis Lane, an agent of the Union is charged with a violation of the Act and that the complaint against the Union must be, and it hereby is, dismissed. During the hearing, on June 10, counsel for Seamprufe moved to amend the charge to add the name of the Union as a person charged. The Board's Rules and Regulations providing that a charge must be filed with a Regional Director (with an exception of no consequence here) the motion is denied.' Even had an amended charge been filed with the Regional Director on that date, more than 6 months having elapsed since the date of the happenings set forth in the charge, the limitation provision,in Section 10 (b) of the Act would prevent the issuance of a complaint. Rulings upon motions by counsel for the Union and Mavis Lane to dismiss the complaint as to Lane are disposed of in this report : so also as to motions by counsel for the Association to dismiss the complaint in 16-CA-39, insofar as its interests are affected, and motions by counsel for Seamprufe to dismiss that complaint in whole or in part. All parties excepting only the General Counsel filed briefs with the under- signed : Seamprufe and the Association also submitted proposed findings of fact and conclusions of law. Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF SEAMPRUFE Seamprufe, Incorporated, is a New York corporation with headquarters in New York, New York, engaged at McAlester, Oklahoma, and at other locations, in the manufacture and distribution of lingerie. During the 6-month period preceding the hearing, Seamprufe received at its McAlester plant raw materials shipped from points outside the State of Oklahoma having a value in excess of $500,000. During the same period, Seamprufe shipped from McAlester to points outside Oklahoma finished products having a value in excess of $800,000. The parties stipulated at the hearing that Seamprufe is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE ORGANIZATIONS INVOLVED; THE STATUS OF MAVIS LANE International Ladies Garment Workers Union, AFL, and Seamprufe Em- ployees Association, unaffiliated, are labor organizations admitting to member- ship employees of Seamprufe. Mavis Lane is and at all times material herein has been an agent of the Union. III. THE UNFAIR LABOR PRACTICE 6 A. In Case No. 16-CB-1 On December 6, 1947, the Union sponsored and conducted an open meeting in McAlester for employees of Seamprufe. Mavis Lane presided at the meeting and was the principal speaker. The complaint alleges that she made statements * See Matter of Sewell Manufactuding Company, 72 N. L. R. B. 85, 97-98. See also N L. R B. v. Hopwood Retinniug Co, 98 F. (2d) 97, 101 (C. C. A. 2, 1938). 5 All dates recited herein fall in the period from August 1947 through March 1948 838914-50-vol. 82-58 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on this occasion in violation of Section 8 (b) (1) (A) of the Act in that they restrained and coerced employees in their rights under Section 7. About 30 employees attended the meeting. There is no dispute but that Lane spoke at some length describing the advantages to be gained by union member- ship and relating how the Union had served to raise wages and improve working conditions in the industry. Her talk was supplemented by remarks in the same vein delivered by A. E. Morrow, a business agent for another union. At the conclusion of these addresses, questions were asked from the floor and answered by the speakers. George Michie, a machinist in the employ of Seamprufe, testified that when he related an unhappy experience that he had undergone in connection with his membership in another labor organization, Lane said "We have ways of handling people like you that argue against the Union." ° According to Michie, Lane went on to say that when organization was successful all employees would have to join the Union in order to retain employment. Other employees, Buena Hardin, Frank Putnam, Clora Kenney, and Wilma Nelms testified generally in support of Michie's account of these state- ments. According to Hardin, Putnam, and Nelms, Lane stated that if 51 percent of the employees joined the Union, the remainder would eventually have to do so in order to retain their jobs. Michie further testified that Lane asserted that employees in Seamprufe's plants in Easton and Scranton, Pennsylvania, were "organized." Other witnesses testified that she said either that she thought that to be the fact or would endeavor to ascertain if that were so. Lane denied saying that employees who did not join the Union would lose their employment, denied making any statement to Michie in the nature of a threat, and asserted that, as to the plants in Pennsylvania, she stated only a purpose to investigate. A number of employees called as witnesses by the Union testified either that Lane did not make the remarks as alleged by Michie or that they heard her make no such remarks. Kathleen Crawford, president of the Association, testified, "Michie asked her a lot of questions and there was a whole bunch talking at once." Appar- ently sufficient confusion existed so that honest and truthful witnesses could disagree as to what was said and in what context. Michie's testimony made it clear that he opposed the Union at the time he attended the meeting and his assertion that he went there with an open mind is disbelieved. I am also aware, as he later testified, that he suffers from an impairment in hearing which would make it not unlikely that he misheard some of the answers Lane made to his questions. However, to the extent that it was corroborated by Hardin, Putnam, Kenney, and Crawford, I find that Lane made, in substance, the statements set forth above.7 Did these statements constitute a violation of the Act? First, I find that Lane was an agent of a labor organization and in the performance of her duties as such conducted and addressed the meeting of December 6. I have found that she said in substance "when we organize the plant, those who do not join the Union will eventually lose their jobs." Did this statement restrain and coerce ° Michie's testimony that Lane threatened that "they were going to take care of me and my job," was unsupported by other witnesses and appears to be a conclusion . I find that Lane made no such statement. 4 Morrow testified that Lane said, "When we get this place organized , there will be ways of taking care of rats and scabs" and that he told the employees they would have to join the Union after the plant was organized in order to retain employment . I find that Lane is answerable for Morrow 's statement. SEAMPRUFE, INCORPORATED 903 employees in their rights under Section 7 of the Act or could it reasonably have been interpreted by her hearers as containing such elements? I believe that both questions must be answered in the negative. The employees knew, of course, that Lane was not their employer and that she had no power to affect their tenure of employment. She said when the plant is "organized " those who do not join the Union eventually will lose their jobs. She spoke entirely of a situation which might arise in the future and of conditions which the Union might lawfully seek to secure. Since Lane, as an agent of the Union, might properly and legally seek, after designation by a majority of the employees, to negotiate a union-shop agreement with Seamprufe , a statement of her purpose to do so could not constitute coercion.' Lane had a right to address the gather- ing, to extoll the virtues of labor organizations, to describe the advantages of collective action, and to persuade her audience to action with respect to joining the Unions Coercion is defined as "The application to another of such force, either physical or moral, as to constrain him to do against his will something he would not otherwise have done." 10 I find this to be the generally accepted definition of the word and the sense in which it is used in the Act. Lane applied no such force, simply called to the attention of her audience the possible or probable result of organization and left to their collective and individual judg- ment what action with respect to joining the Union they should take. I have found that Lane also stated that Seamprufe 's employees in the Pennsyl- vania plants were "organized." Whether or not true, the statement lacks any element of coercion and does not constitute a violation of any section of the Act. I so find. Finally, Lane told Michie, "We have ways of handling people like you that argue against the Union." What ways? On this question the record is silent and the statement stands in vacuo. Of course, she may have intended to place him in fear of physical harm and I do not find that Michie's testimony that she did not succeed in such a purpose to be material. There is, however, not a scin- tilla of evidence that she individually or through her organization ever had harmed or threatened to harm anyone on any prior occasion . Thus there is no background of violence or threat of violence against which to evaluate the state- ment. She may have intended to convey the thought that dissidents would not be permitted to join the Union , but unions have a right to select their members. She may have intended anything within the speculative imagination of the hearer but a speaker is not bound by the varying capacities for understanding of his audience nor chargeable with the violation of a statute because some of his hearers may give an interpretation of his remarks not clearly intended by the words spoken. Of course, the trier of fact in such a situation may not find a sinister meaning in words which are reasonably susceptible of innocent in- tendment. This epitomizes the fatal weakness of the General Counsel's case, the preponderance of the evidence does not establish that Lane's remarks con- stituted a threat to Michie's tenure of employment. I find that by her speech and statements made to employees of Seamprufe on December 6, Lane did not violate Section 8 (b) (1) of the Act and, since I have already found that there is no charge upon which to base the complaint 8 See N. L. R. B. V. Dahlstrom Metallic Door Co., 112 F. (2d) 756 (C. C. A. 2) ; at. N L. R. B. v. Dadoarian Export Co , 138 F. (2d) 891 (C. C. A. 2). ° See Thomas v. Collins, 323 U. S. 516, 537. 10 Webster's New International Dictionary , 2nd Edition , unabridged (1947). 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against the Union, I will recommend that the complaint in Case No . 16-CB-1 be dismissed in its entirety. B. In Case No. 16-CA-39 1. Interference , restraint, and coercion Seamprufe opened its McAlester plant in August 1947 and recruited its em- ployees from residents in the area . The plant was first located in an old build- ing which, while in many ways unsatisfactory , served until a new plant was completed in January 1948. The workers, who for the most part, were engaged in sewing operations , were required to have no high degree of skill. Most of them were entirely inexperienced and were trained by Seamprufe. Those en- gaged in unskilled and semi-skilled manufacturing operations were hired at 40 cents an hour. Later those who had worked for at least 6 weeks were given 45 cents and after 12 weeks of employment all received 50 cents. Leonard Baum, who had managed a Seamprufe plant in Pennsylvania , was manager and upon him devolved responsibility for securing personnel and directing their efforts. Due to the physical condition of the old plant, Baum found it advisable to call the employees together on frequent occasions and to talk to them encouragingly about the improvement in working conditions which would occur when the new building was completed. On November 25, Baum caused the power to be cut off and assembled the workers in the plant. According to Baum's credited testimony , he told them that he had learned of the presence in McAlester of a union organizer; that unions had their place in industry but were not needed at Seamprufe ; that Seam- prufe had always discharged its obligations to its employees ; that Seamprufe could not under the law coerce or persuade its employees in their exercise of choice ; and that each must make his own decision in selecting or rejecting a bar- gaining representative . At the close of the day Lane arrived in a taxi at the plant gate on the highway, a point about 90 feet from the plant entrance and in view from Baum's office . Eva Mills, an operator, was accosted that evening by Baum as she was leaving the plant building. Baum inquired who she had ridden to work with that morning. Mills replied that she had done so with Lane, the union organizer . Baum then observed "I hope you know what you are doing." Geneva Bassett then joined the conversation saying "I guess I am in on this too." Addressing both of them Baum went on to say that Seamprufe employees did not need a union and that it was unnecessary "to pay an outsider" when the employees could form their own organization and have "their own socials and gatherings." Bassett and Mills then left and with employee Virginia Webb and Lane rode back to town in Lane's taxi . According to Mills and Bassett, Baum stood at a window in the plant and watched their departure . Edna Clendenon, whose discharge will be discussed in a separate section of this report, was standing in Baum's office when Mills and Bassett left the plant . Clendenon testified that Baum was looking out the window and that following his gaze she saw Bassett , Webb and Mills at the taxi with Lane . Baum turned from the window and said, in the words of Clendenon "that he did not see why a union had come in here . . . people lived before there was ever a union, . . . they could still continue." A few days later, according to Clendenon, Baum ap- proached her at her machine and asked, "who changed your mind about the union?" Clendenon replied that no one had, whereupon Baum continued "well SEAMPRUFE, INCORPORATED 905 the way I hear it, you are for it." Clendenon answered that she had not told him whether she favored the union. On the day of this colloquy she joined the Union . Ruby June Vargas testified that on November 2711 Baum called her from her machine and asked her what she thought of the Union . Vargas re- plied that if one were organized she would join it. Baum rejoined that unions were all right but were not necessary at Seamprufe. Vargas then went on to tell Baum of the union to which she had belonged when working in California and of the advantages which she considered it had obtained for her. Baum suggested that the employees might form their own club , such as existed in Seamprufe's Pennsylvania plants, and have their own "little social functions and shindigs." About December 2 Bassett complained to Baum that she was receiving an electrical shock from her machine . While examining the wiring Baum asked her why the employees did not form a club of their own, pay weekly dues of 10 cents, and have their own dances and parties. Baum also asked, according to Bassett, why the employees should pay money to a stranger who dressed better than they. On December 3 Baum told the employees that on December 8 they would go on a piece-work basis, and that as of the approaching Christmas, they would be paid for certain annual holidays , and would be given a week's vacation with pay during the week of July 4. On December 5 Baum announced the new piece rates . On December 8, following the Union meeting which was discussed earlier in this report, Baum, according to Bassett, referring to this meeting, said that his feelings were deeply hurt, asked if the employees had read the union cards that they had signed , and said "I suppose a lot of you are wondering how I got my information about the meeting Saturday . . . If Miss Lane has her stool pigeons, I have the right to have my stool pigeons." Clendenon testified that Baum on this occasion referred to organizations existing among Seamprufe employees in the Pennsylvania plants which supported dances, parties and other social activities and expressed the wish that McAlester employees would follow that example.12 On December 9, Harold S . Caplin, Seamprufe's production manager and a director of the Company arrived in McAlester and addressed the employees in the plant. He complimented them upon their patience in en- during the adverse working conditions - in the old plant, announced that free coffee would be served to them for the remainder of the week , that a non-profit cafeteria would be operated in the new plant, that hospitalization insurance would be given each of them, along with other insurance benefits, confirmed Baum's earlier announcement that they would receive holidays with pay and a vacation, and pointed out that Seamprufe offered them steady work , that they had in the past received materials which were needed in other plants in order that they might be kept busy . Caplin went on to say that "under the Taft-Hartley no one, including Mr. Baum or myself , could theaten them or tell them in any fashion what to do . It was up to their thinking and whatever they would get." On an occasion, which I find to be some time during the week following the union meeting, Baum encountered Crawford on the street and in the course of con- versation Baum asked if she had signed a card for the Union . Crawford replied 11 As counsel for Seamprufe point out in their brief, November 27 was Thanksgiving and the plant was then closed. No doubt, Vargas was mistaken as to this date. However, I find that the conversation did occur within a day or two of the date given. 12Kathleen Crawford, president of the Association, testified that on some occasion in December during a meeting in the plant Baum, in response to questions put by employees, answered that employee organizations existed in the Pennsylvania plants for the purpose of handling grievances and supporting social affairs. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that she had'3 Baum observed that it was "all right" or that it was her privilege to do so. Baum denied that he said anything in his talk to the employees November 25 about the formation of an organization of their own , or that he made such a suggestion to Vargas or Bassett . He admitted asking Mills "what value" she found in the Union and that he had similarly questioned Vargas, denied saying anything to employees about paying money to a stranger , about stool pigeons, or that he saw Webb, Mills, and aBssett get into a taxi with Lane on November 25. Baum explained that shortly after learning that an attempt was being made to organize Seamprufe employees he advised Caplin in New York of this develop- ment. He also testified that he had not expected Caplin to visit McAlester until the time arrived to move to the new plant. It seems too plain for comment , in view of Baum's admitted remarks to the employees that. Seamprufe desired them to reject the overtures of Lane. It is equally plain that in his talk of November 25 Baum appealed only to the reason of the employees and left them free to consider their problem without threat of reprisal or benefit. However, on December 3, he announced that an increase in wage rates would be made and on December 5 announced the amount of the increase, as well as the institution of the holiday and vacation practice. On January 5, a further wage increase was announced. The General Counsel and the Union argue that his announcement of benefits was timed deliberately to forestall further progress by the Union, and to demon- strate to the employees that Seamprufe would voluntarily give them that which a Union could only request. Reduced to simplest terms, it is contended that Seamprufe attempted to bribe its employees by means of a wage increase, a holiday and vacation schedule and by free insurance, to reject the Union. Caplin testified that he had promised the employees in September that certain benefits would be granted to them when they moved to the new building, and in December announced that the granting of these benefits would no longer be withheld. Baum testified that all employees were told at the time of hire that they would be paid for 5 holidays and receive a week's paid vacation. However, no employee was paid for holidays not worked prior to December. Here, then, was an employer instituting improvements in conditions of employment without any specific demand from the employees, a month earlier than it had promised to do so. What induced this action? It may safely be assumed that one purpose was to keep the employees satisfied and contented in their employment, to minimize turn-over and to improve morale. These are, of course, worthy objec- tives and Seamprufe cannot be criticized with respect to them. I am convinced, however, and find that the timing of the announcement of these benefits is significant, and that the inception of the Union's organizing campaign hastened the announcement. They constituted clearly a powerful argument minimizing the appeal of self-organization, and a demonstration that no necessity existed for such action. I find that by offering a wage increase and other benefits during the Union's organizing campaign in the circumstances given , Seamprufe violated Section 8 (a) (1) of the ActV' 18 Crawford appears never to have become a member of the Union . Shortly after this occasion she became active in the organization of the Association and at the time of the hearing was its president. 14 See Matter of Lancaster Garment Company, 78 N. L. R. B. 935; Matter of Hudson Hosiery Co., 72 N. L. R. B. 1434. SEAMPRUFE, INCORPORATED 907 By interrogating of Crawford, Vargas, Mills and Clendenon, concerning their membership in or sympathy for the Union I find that Seamprufe further violated Section 8 (a) (1) of the Act. George Michie, Clora Mae Kenny and Frank Putman, Jr., all employees, at- tended the Union meeting on December 6 and reported in detail or in part their observations to Baum. The General Counsel and Counsel for the Union contend that these three individuals were agents of Seamprufe in attending and reporting on the union meeting. I find no merit in this contention. Other activities of Putnam and Michie, which it is contended are attributable to Seamprufe, will be discussed in another section of this report. 2. The Association On or about December 11, Baum granted the request of certain employees, not further identified in the record, to use the plant for purposes of meeting; Putnam lettered a sign announcing the meeting and posted it near the time clock ; Michie addressed the meeting, and suggested that the employees form their own organiza- tion. This suggestion meeting with some approval, Michie appointed four employees, among them Crawford, Nelms, and Kenney, to a committee for the purpose of perfecting organization. Thereafter this committee met with a local attorney, H. I. Aston, who drafted a constitution and bylaws for the new organization. The committee also selected a slate of officers for employee approval. On December 18, again in the plant after working hours, Aston met with the employees and read the articles he had drafted. After they were adopted, a slate of officers drawn by the committee was elected and the Association was born. The original constitution described an organization principally social in character but did provide for handling of emplotee grievances. Dues were set at 10 cents weekly to be deducted by Seamprufe from the wages of each mem- ber. No further meetings were held in the plant 16 In February, the Association met in a public hall in McAlester, a new attorney, James B. Bratton, at the suggestion of Aston, was retained, and amendments to the constitution and bylaws adopted. The constitution as amended con- stituted the Association as an organization whose purpose it was to represent employees in matters of collective bargaining with Seamprufe, retained the provision for weekly dues of 10 cents by check-off, and continued the provision that membership (and hence eligibility to retain office) would terminate upon severance from Seamprufe's employ. Following the meeting of December 18, Michie, Putnam, Crawford, Hardin, and others campaigned actively for the Association both in and out of the plant ; during working and nonworking time. Employee Martha Killion testified that in February, Michie interrupted her work at the plant to speak to her about the Association. During the conversation, which according to Killion lasted at least 15 minutes, Baum stood about 6 feet in front of her, within easy hearing distance and, still according to Killion, kept his eyes upon her for most of this period except for a few occasions when supervisors came up to speak to him. Killion told Michie that she did not believe a statement by Frank Putnam that Seamprufe would leave McAlester If the Union was successful as she thought that Seamprufe had invested too much money in McAlester 16 to abandon it. 1s Baum was in the plant during at least part of the time that each meeting was held. His denial of knowledge as to the purpose of the meetings is not credited. 16 Seamprufe was then occupying its new plant. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Michie replied "you don't know much about Jewish people do you? ... Those Jews would rather lose $50,000 than to have any union come in here and tell them what to do." Killion testified that she watched Baum during this conversa- tion for she feared she might be disciplined for taking so much time from her work, that Baum appeared to be watching her except for the times when he was interrupted by supervisors and that there was no such interruption when the above conversation took place. Michie admitted having such a conversation with Killion, but asserted that it lasted only a few minutes, much less than 15, and testified that he did not see Baum. Baum testified that he overheard no such colloquy and denied that he had ever remained at one point on the working floor of the plant for as long as 15 minutes. Killion never joined the Association but was a member of the Union and solicited others to join that organization. Counsel for the General Counsel and counsel for the Union contend that Baum's failure to disavow Michie's statements constituted approval of them and ratification of Michie's conduct. I find that Baum heard Michie's statements to Killion and that his failure to disavow them in the circumstances given constituted support for the Associa- tion. I believe it to be true that an employer is not ordinarily under duty to point out to employees the falsity of statements made by a labor organization in an organizing campaign and that his failure to do so does not in a given jsituation constitute an endorsement of. them. This would be the case where the employer had made his neutrality known to employees and had left to their common sense the evaluation of conflicting claims. Here, however, Baum had entered the lists in opposition to the Union, had on December 8 branded as false claims made by Lane on the preceding Saturday, and had recommended the formation of an independent organization.17 Thus his silence on the occasion described was reasonably interpreted by Killion as approval of Michie's threat. Seamprufe thereby assisted the Association. In March, two employees, Gene Norris and Anna Pulchny, president and vice president respectively of the Union local, asked Baum for an increase in the piece price rate. Both testified that Baum expressed inability to make such a change at that time but promised that when "everything was settled and the Association got in, that we wouldn't have to worry about . . . piece prices, that they would be corrected." 18 Baum further observed, according to the credited testi- mony of Norris that union members were not working satisfactorily and that if they did not improve, some of them would be discharged after the "confusion" was over. By recommending the formation of an independent union, by announcing wage increases and other benefits in order to discourage membership in the Union, by permitting meetings of the Association in the plant, by failing to disavow threats made by Michie in support of the Association, by conditioning wage increases upon the success of the Association, and by the entire course of its conduct heretofore found violative of Section 8 (a) (1) of the Act, Seamprufe dominated, assisted, and contributed support to the Association and thereby violated Section 8 (a) , subsections (1) and (2) of the Act. 11 Baum's denial that he suggested the advantages of forming their own organization to Bassett, Vargas, Mills and to the employees who heard his talk on December 8, as related earlier in this report is not credited 's In cross-examination, Norris testified that Baum made this statement on the following day and not in the presence of Pulchny. I find that Baum spoke substantially as quoted above to Norris and Pulchny. Baum's denial is not credited. SEAMPRUFE, INCORPORATED 909 3. The discharges Virginia Romeo Webb 19 was employed by Seamprufe on November 24 and dis- charged November 26. As was the custom with new employees, Webb was assigned to "sewing scraps" for training and instruction. Her first day passed without particular incident. On November 25, Webb continued in the same training work but sometime during the day sustained, accidentally, an electrical shock which temporarily incapacitated her. She did, however, finish the day and left the plant at closing time with Union Organizer Lane, observed by Baum 1° Sometime during her employment, both her supervisor, McCartney, and Baum spoke encouragingly to her, observing that she was "improving" or that she was "doing fine." In the morning of the 26th, Baum called Webb to his office, told her that her work was unsatisfactory and discharged her. Webb protested un- availingly and left the office. As she was preparing to leave the plant, she asked McCartney why she was fired. McCartney replied that she did not know. I am convinced and find that Webb was discharged because of her interest in the Union. Seamprufe, at the time, was attempting to train a corps of operators in preparation for its move to the new plant. No particular experience aptitude was required of applicants who were expected to undergo training for 6 to 12 weeks before acquiring proficiency. Webb possessed no obvious handicaps" and so far as the record reveals manifested an acceptable disposition to learn the work. That Seamprufe did not expect immediate proficiency from its em- ployees was made apparent by Caplin on December 9 when he observed that some would never become operators but that they should not worry, that other work would be found for them. I believe that the testimony of McCartney and Baum concerning Webb's incapacity was concocted . She was, of course, inexpert but Baum told her that she was improving and, I believe, she was in fact, doing all that reasonably was expected of her. Thus her puzzlement expressed at the time of discharge is understandable. As to motivation, the record reveals Seamprufe's antipathy toward the Union and its fear that it might achieve success. Here was a new and untrained worker whose employment would not profit Seamprufe for weeks or perhaps months. I believe that Baum reasoned "Why invest in her training? She is evidently a union sympathizer and may infect those who now are not. Better to discharge her now when she represents no investment than to let her remain perhaps to pursuade others to her views." I find that by the discharge of Webb , Seamprufe discouraged membership in the Union in violation of Section 8 (a) (1) of the Act and discriminatorily de- prived Webb of her employment in violation of Section 8 (a) (3) of the Act. Edna Clendenon was employed on October 24. After a few days as an operator she was made an inspector and, except for a few intervals , was so employed until her discharge on January 2. Clendenon was one of those who rode to the plant with Lane on the morning of November 25, and it was to her that Baum observed later in that month, concerning the Union, "Well, the way I hear it, you are for it." Olendenon joined the Union in early December. Thereafter, her work was criticized. On one occasion Baum charged her with responsibility for the failure of another inspector but later admitted his error. Supervisor Sullivan 19 Generally referred to in the record as Virginia Romeo. 20 Baum's denial that he saw Bassett, Mills , Webb, and Lane, depart from the plant together on that date is not credited. 21 Seamprufe's claim that her eyesight was defective is not credited in view of expert testimony to the contrary. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that "every time [she ] looked" at Clendenon's work she found it to be unsatisfactory ; that her work was never good ; and that this condition pre- vailed from the first day of Clendenon's employment. At the hearing, production records of other inspectors were introduced to sustain Seamprufe's claim that Clendenon was the least efficient of them. Including Clendenon , Seamprufe employed six in inspection work during December. At the hearing, counsel for Seamprufe offered production records for all inspectors during that period, which allegedly indicated that Clendenon was one of the least efficient. Two of the records were found to be incomplete and were withdrawn. The remaining records indicate that at least two in- spectors had production records no more satisfactory than Clendenon.22 On Friday, January 2, Sullivan told Clendenon that Baum no longer needed her services. It is clear that Clendenon was not a particularly efficient worker and that Baum and Sullivan might have had reasonable cause to criticize her work on several occasions . However, it is also true that Clendenon was capable of operating a machine and that she was occasionally used for that purpose when inspection work was slow. To that extent at least she possessed a skill which the other inspectors lacked. It should also be recalled that her discharge came at a time when Seamprufe was moving to its new plant where its operations were greatly expanded and where its need for help was increased. I am unable to accord any probative weight to the testimony of Sullivan concerning Clendenon's efficiency, exaggerated as it was to the point of absurdity. It is apparent that Sullivan was determined to justify Clendenon 's discharge by any means, and was willing to distort facts in order to fit a conclusion that Clendenon was not a worthy employee. It does not appear that Clendenon 's deficiencies became apparent until some time following the date in early December when Baum accused her of being a Union member. In view of Seamprufe's need for em- ployees, in view of Baum's antipathy for the Union and his belief that Clendenon was a union sympathizer, and in consideration of the fact that Seamprufe has not established its defense that Clendenon was so inefficient a worker as to justify her discharge, I find that by the discharge of Clendenon on January 2, 1948, Seamprufe discriminated in regard to her employment because of her membership and activity on behalf of the Union , in violation of Section 8 (a) (3) and Section 8 (a) (1) of the Act. C. Rulings 1. In Case No. 16-CB-1 The findings of fact requested by counsel for Seamprufe in their brief are ruled upon as follows : 1 and 3 are rejected ; 2 is accepted. The conclusion of law requested by counsel for Seamprufe in their brief is rejected. 2. In Case No. 16-CA-39 The findings of fact requested by counsel for Seamprufe in their brief are ruled upon as follows : 1, 2, 3, 4, and 5 are accepted in substance as set forth herein ; 6, 7, 8, and 9 are accepted in part and denied in part as set forth herein; 10, 11, and 12 are rejected. -= These records are not entirely reliable for purposes of establishing comparative efficiency . Clendenon was occasionally taken off inspection work and assigned to other duties. Her production as an inspector would thus be lessened and it is not clear that an adjustment would be made in her efficiency record on that account. SEAMPRUFE, INCORPORATED 911 The conclusions of law requested by counsel for Seamprufe in their brief are rejected. The findings of fact requested by counsel for the Association in his brief are ruled upon as follows : 1 is accepted ; 2, 3, and 4 are rejected. The conclusions of law requested by counsel for the Association in his brief are ruled upon as follows : 1 and 2 are accepted ; 3 and 4 are rejected. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Seamprufe, set forth in Section III, B, above, occurring in connection with its 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 there is no charge upon which to base the complaint against the Union and having found that the statements of Mavis Lane made to the employees on December 6, do not constitute violations of the Act as alleged, I will recommend that the complaint in Case No. 16-CB-1 be dismissed. Having found that Seamprufe has engaged in certain unfair labor practices affecting commerce, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Seamprufe discriminatorily discharged Virginia Romeo Webb and Edna Clendenon on November 26 and January 2, respectively, thereby discouraging membership in the Union, I will recommend that Seamprufe offer to each of them immediate and full reinstatement to her former or substantially equivalent position 23 without prejudice to seniority, insurance, vacation, and other rights and privileges, and that Seamprufe make each whole for any loss of pay she may have suffered by reason of the discrimination against her, by pay- ment to each of a sum of money equal to the amount she normally would have earned as wages from the date of her discharge to the date of the offer of rein- statement less her net earnings 24 during that period. Having found that Seamprufe has dominated, assisted and contributed support to the Association, I will recommend that Seamprufe withhold recognition from the Association 26 as the representative of employees in matters of collective bargaining and completely disestablish it. Because of Seamprufe's domination, assistance and support, the Association is incapable of serving the employees as a genuinely independent bargaining agency; it has been used by Seamprufe to frustrate self-organization and to defeat the efforts by some employees to be represented by an agency untainted by employer influence. Disestablishment of the Association is necessary in order that the employees may free themselves from Seamprufe's unlawful domination and be enabled to select an organization, if they so desire, capable of independent existence Re 93 See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 N. L. R. B. 827. 24 See Matter of Crossett Lumber Company, 8 N. L. R. B 440, 497-,498. 26 The request of the Association made on March 5, that it be recognized as the bargaining representative of Seamprufe's employees was denied by the latter on March 11. 26 The Association has never collected the dues of 10 cents a week. "[They ] seem to speak rather of the `good clean fun' of the lodge meeting than of the grimmer pattern of the strike benefit." Titan Metal Mfg. Co. v. N. L. R. B., 106 F. (2d) 254, 259 (C. C. A. 3, 1939). 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the above findings that Seamprufe has timed the granting of wage increases and other benefits, interrogated employees concerning their union mem- bership or sympathy, dominated and assisted the Association, and discriminated in regard to hire and tenure of employment, all for the purpose of discouraging membership in the Union, it is apparent that Seamprufe's course of conduct dis- closes a fixed purpose to defeat self-organization and its objectives. Because of Seamprufe's unlawful conduct and its underlying purpose, I am convinced that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed and that a danger of their commission in the future is to be anticipated from the course of Seamprufe's conduct in the past. The preventive purpose of the Act will be thwarted unless these recommendations are coextensive with the threat. In order therefore, to make effective the interdependent guar- antees of Section 7, to prevent a recurrence of unfair labor practices and thereby to minimize strife which burdens and obstructs commerce, and thus to effectuate the policies of the Act, I will recommend that Seamprufe cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. The allegation in the complaint in Case No. 16-CA-39 that Seamprufe kept meetings of the Union under surveillance has not been established by a pre- ponderance of the evidence and I will recommend its dismissal. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following : CONcLusIoNs OF LAW A. In case NO. 16-CB-1 1. International Ladies Garment Workers Union, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Mavis Lane is, and at all times material herein has been, an agent of Inter- national Ladies Garment Workers Union, AFL. 3. The complaint against International Ladies Garment Workers Union, AFL, is not based upon a charge duly filed. 4. Mavis Lane has not violated Section 8 (1) (B) of the Act. B. In Case No. 16-CA-39 1. International Ladies Garment Workers Union, AFL, and Seamprufe Em- ployees Association are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discharging Virginia Romeo Webb and Edna Clendenon because of their membership in, activity on behalf of or sympathy for International Ladies Gar- ment Workers Union, AFL, Seamprufe has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By dominating and interfering with the formation and administration of Seamprufe Employees Association and by contributing support to that organiza- tion, Seamprufe has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 4. By the above acts, by interrogating its employees concerning union activities and sympathies and by timing the offering of wage increases and other benefits in order to discourage membership in International Ladies Garment Workers Union, AFL, Seamprufe has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 6. Seamprufe has not engaged in surveillance of meetings of its employees in violation of Section 8 (a) (1) of the Act. SEAMPRUFE, INCORPORATED RECOMMENDATIONS 913 A. In Case No. 16-CB-1 Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case , I recommend that the complaint against Mavis Lane and International Ladies Garment Workers Union , AFL, be dismissed in its entirety. B. In Case No. 16-CA-39 Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Seamprufe , Incorporated, its officers, agents , successors and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Ladies Garment Workers Union, AFL, or in any other labor organization, by discharging employees or in any other manner discriminating in regard to hire and tenure of employment or any term or condition of employment because of membership in, activity on behalf of or sympathy for such organization ; (b) Dominating or interfering with the administration of, or contributing support to, Seamprufe Employees Association, and dominating or interfering with the formation or administration of, or contributing support to, any other labor organization of its employees ; (c) Interrogating employees in respect to their membership in, activity in behalf of, or sympathy for International Ladies Garment Workers Union, AFL, or any other labor organization, offering wage increases or other benefits in order to persuade employees to favor or disfavor any labor organization, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization , to form labor organizations, to join or assist Inter- national Ladies Garment Workers Union, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid cr protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act : (a) Offer Virginia Romeo Webb and Edna Clendenon immediate and full reinstatement each to her former or substantially equivalent position without prejudice to her seniority , insurance, vacation, or other rights and privileges ; (b) Make each of the above-named individuals whole for any loss of pay she may have suffered by reason of the discrimination against her ; (c) Withhold recognition from Seamprufe Employees Association and com- pletely disestablish that organization as the representative of any of Seam- prute's employees for the purpose of dealing with Seamprufe in matters of griev- ances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment ; (d) Post at its plant in McAlester, Oklahoma, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be supplied by the Regional Director for the Sixteenth Region , shall, after being duly signed by Seamprufe, be posted by Seamprufe immediately upon receipt thereof and be maintained by it for at least sixty (60) consecutive days thereafter , in con- spicuous places, including all places where notices to employees customarily are posted . Reasonable precautions shall be taken by Seamprufe to insure that such notices are not altered, defaced, or covered by any other material ; 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for the Sixteenth Region (Fort Worth, Texas), in writing, within twenty (20) days from the date of receipt of this Intermediate Report and Recommended Order, setting forth in detail the steps taken by Seamprufe in compliance herewith. It is further recommended that unless on or before twenty (20) days from the date of receipt of this Intermediate Report and Recommended Order, Seamprufe notifies the said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Seamprufe to take such action. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 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 service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 10th day of September 1948. WALLACE E. ROYSTEB, Trial Examiner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations 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 HEREBY DISESTABLISH Seamprufe Employees Association as the repre- sentative of any of our employees for the purpose of dealing with us con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it or any suc- cessor thereto for any of the above purposes. WE WILL NOT dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. SEAMPRUFE, INCORPORATED 915 WE WILL OFFER to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Virginia Romeo Webb Edna Clendenon WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Ladies Garment Workers Union, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. All our employees are free to become or remain members of this union, 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 any employee because of membership in or activity on behalf of any such labor organization. SEANTRUFE, INCORPORATED, 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.