Salant & Salant, Inc.

In the Matter of SALANT &, SALANT, INCORPORATED and AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO Case No. 15-C-1229.-Decided November 23, 19/9 DECISION AND ORDER On July 18, 1949, Trial Examiner Howard Myers issued his Inter- mediate Report in the above-entitled proceeding, in which he found that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommended that the complaint be dis- missed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed excep- tions to the Intermediate Report and a supporting brief. The Board I has reviewedthe rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby aflirmed.2 The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except insofar as they are inconsistent with our findings, conclusions, and order hereinafter set forth.3 I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Members Reynolds and Gray]. Apparently because the Trial Examiner recommended dismissal of the complaint in its entirety , neither the Respondent nor the AFL filed exceptions to the Trial Examiner's adverse rulings on their objections and motions made during the course of the hearing. We have, nevertheless , considered all the Trial Examiner ' s rulings as though exceptions had been filed by each of them. We also affirm the Trial Examiner's ruling, amide before the reopened hearing, rejecting the Respondent ' s objection to the amendment of the complaint on the ground that the order to show cause was issued by the Chief Trial Examiner instead of the Trial Examiner. As the General Counsel 's motion to amend the complaint and reopen the hearing was considered and decided by the Trial Examiner , none of the parties was prejudiced by the Chief Trial Examiner's interim issuance of the order to show cause. I The General Counsel filed no specific exceptions to the Trial Examiner's failure to find that the Respondent discriminatorily discharged Charles F. Hayes, James E. Baker, Fred Watson, Troy E. Johnson , and Sidney Fisher , and that it violated Semtions 8 (a) (1) and ( 2) of the Act independently of the union -security clause in its contract with the AFL. However , we have considered all the findings and conclusions made by the T rial Examiner in the Intermediate Report and we agree with his conclusions except as hereinafter set forth. We deem it unnecessary to pass upon other allegations in the complaint as to which the Trial Examiner made no findings and as to which there are no specific exceptions. 87 NLRB No. 36. 215 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner found that the contract between the Respondent and the AFL, terminated by agreement of the parties on November 23, 1948, did not require membership in the AFL as a condition of employ- ment, and that therefore the Respondent did not, as alleged in the complaint, violate the prohibitions of the Act by virtue of the contract. We do not agree. The facts are undisputed. The contract, originally executed on December 4, 1946, contained the following clause : ARTICLE II-UNION SECURITY SEC. 1. All employees covered by this contract shall become members of the Union. Inexperienced employees shall become members of the Union four (4) weeks after they are first employed. SEC. 2. The Company expressly reserves the right to employ whomsoever it pleases, but all employees subject to this Agreement shall become and remain mmzemnbers of the Union, as indicated above. [Emphasis supplied.] By its terms, the contract was to expire on December 1, 1947; it also contained provision for a 1-year automatic renewal. unless either party gave 60 days' notice to terminate. No such notice was given, and the contract was then automatically renewed to December 1, 1948. On February 16, 1948, the Respondent and the AFL executed a Supplemental Agreement, amending the contract by adding a "Cost- of-Living Bonus" provision. The Supplemental Agreement also pro- vided that "except as modified above, said Collective Bargaining Agreement of December 4, 1946, shall remain in full force and effect until its expiration date on December 1, 1948." Throughout the ex- tended term of the contract, the Respondent continued to check off union dues, as provided in the agreement, using a revised form of individual authorization after July 1, 1948. It is clear, therefore, that throughout 1948, the Respondent and the AFL reaffirmed all the pro- visions of their contract, including the union-security clause. At no time was a union-security authorization election requested or held pursuant to Section 9 (e ) of the Act. On November 23, 1948, however, the Respondent and' the AFL executed *a new agreement, which contained no union-security provision. We do not believe, as did the Trial Examiner, that the omission from the contract of language explicitly requiring the Respondent to dis- charge employees who did not join the AFL and maintain membership therein means that the contract did not make membership in that union a condition of employment. Thus, the contract provided not only that SALANT & SALANT, INCORPORATED 217 all employees shall become union members, but also that they "shall become and remain" members of the Union. We believe that this lan- guage is sufficiently clear to establish the intention of the parties to bind the Respondent not to continue nonunion members in its employ, and that the employees could reasonably construe it as imposing such a limitation on their employment privileges. As we recently said re- garding a contract providing a comparable requirement: 4 Although . . . the contract does not expressly state that the nmaintenance-of-membership requirement for present union mem- bers is a condition of their employment, nevertheless, application of the usual principles of construction to the agreement in ques- tion leads to the conclusion that union employees must retain their membership as therein provided as a condition of their con- tinued employment. The pertinent provision of this contract is clearly distinguishable from that considered by the Board in its decision in The Iron Fireman Manufacturing Company, 5 where the contract required new employees to make application to join the union at the expiration of a"000-day trial period. We did not construe that clause as a closed-shop pro- vision, because, unlike the contract here in question, it did not require employees to beeomn,e and remain union members, but only to make application for union membership.,-, The Trial Examiner bases his dismissal of the complaint on the further ground that because the contract had expired before issuance of the second amendment to the complaint on January 14,1949, and had been replaced by a new agreement containing no union-security clause, the issues raised by the complaint respecting the old contract had be- come moot. The record also shows, however, that the new contract was not made until after the Respondent had been served with a copy of the proposed amendment to the complaint, in which the legality of the union-security clause was alleged. We do not deem the Respond- ent's discontinuance of the illegal conduct sufficient ground for dis- missing the complaint. We have heretofore rejected similar defenses to unfair labor practices found against both employers 7 and labor organizations.8 Indeed, for reasons set forth below under the section entitled "Remedy," we believe that the effects of the contract still remain to be dissipated. 4 Hughes Aircraft Company, 81 NLRB 867, in which the contract provided that union members "shall continue to be members in good standing.for a period of 90 days." 5 69 NLRB 19. 6 See also National Electric Products Corporation, 80 NLRB 995; cf. Hammond Lumber Company (Terminal Island Yard), 85 NLRB 1320. 4 Pacific Moulded Products Company, 76 NLRB 1140; N. L. R. B. v. The Burke Machine Tool Company, 133 F. 2d 618 (C. A. 6). 8 The Howland Dry Goods Company, 85 NLRB 1037 ; Cory Corporation, 84 NLRB 972. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We conclude, therefore, that the union-security provision in the ex- pired contract was illegal because it failed to satisfy the requirements laid down in the proviso to Section 8 (a) (3). By its affirmative continuance of the contract on and after December 1, 1947, the Re- spondent imposed a restraint upon those employees desiring to refrain from union activities within the meaning of Section 7 of the Act as amended and thereby violated Section 8 (a) (1) thereof.s Moreover, by assenting to the unlawful union-security clause in the renewed and implemented contract, the Respondent lent its sup- port to the AFL in recruiting and maintaining its membership and coerced its employees to become and remain members of the AFL. Accordingly, we find that the Respondent thereby violated Section 8 (a) (2) as well as Section 8 (a) (1) of the Act.1e As the execution of the original contract on December 4, 1946, occurred before the effective date of the proviso to Section 8 (a) (3) of the Labor Management Relations Act of 1947, our unfair labor practice findings herein are limited to the Respondent's conduct in renewing the agreement on December 1, 1947, and thereafter reaffirm- ing its terms 11 Because our findings of illegal activities are limited to the 6-month. period preceding the date of the second amended charge, served on May 13, 1948, we find no merit in the motion of the Respondent and the AFL to dismiss the complaint on the basis of the limitations set-forth in Section 10 (b). The motion is hereby denied 12 THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in con- i:ection with the operations of the Respondent described in Section I of the Intermediate Report, 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. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order that it .cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 9 See Hager d Sons Hinge Manufacturing Company, 80 NLRB 163. 10 Julius Resnick, Inc., 86 NLRB 38. In his brief , the General Counsel argues that the illegal union-security clause also violated Section 8 (a) (3) of the Act. However, as the complaint contains no allegation on this point, we make no such finding. 11 See also the provisions of Section 102, removing the 1946 contract from the prohibitions of the Act for a fixed period after its effective date. 12 Cathey Lumber Company, 86 NLRB 157. SALANT &. SALANT, INCORPORATED 219 We have found that the Respondent violated Section 8 (a) (1) and (2) of the Act by continuing and reaffirming the illegal union-security clause in its contract with the AFL. The effect of such violation was to coerce its employees into becoming and remaining members of the AFL, a vice which Section 8 (a) (3) and Section 9 (e) were intended to avoid. Accordingly we shall order the Respondent to cease and desist from such, or any like or related, conduct. We are also per- suaded that the effect of the coercive conduct would not be eradicated were we to permit the AFL to continue to enjoy a representative status strengthened by virtue of the illegal contract, as renewed in 1947. The fact that, since December 1, 1948, the illegal union-security clause has been eliminated, is not sufficient reason to permit the AFL to retain the benefits of a majority status which was strengthened at that time by the continuation, throughout the preceding year, of the unlawful security clause. Therefore, in order to effectuate the pur- poses and.policies of the Act, we shall order the Respondent to with- draw recognition from the AFL and to cease giving effect to its contract of November 23, 1948, with that organization, or to any modification, extension, supplement, or renewal thereof, -unless and until the AFL has been certified by the Board. Nothing in our order, however, shall be deemed to require the Respondent to vary or abandon those wage, hour, security, or other substantive features of its relations with its employees, established in the performance of said contract, or to prejudice the assertion by the employees of any rights they may have under the agreement. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following additional : CONCLUSION'S OF LAw 1. By continuing and reaffirming its illegal contract with United Garment Workers of America, AFL, thereby interfering with, re- straining, and coercing its employees in their exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Sec- tion 8 (a) (1) of the Act. 2. By assisting and supporting United Garment Workers of America, AFL, through the illegal provisions of said contract, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 220 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD 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 Respondent, Salant & Salant, Incorporated , Parsons, Tennessee, and its officers , agents, successors, and assigns shall : 1. Cease and desist from : (a) Entering into, renewing, or enforcing any agreement with United Garment Workers of America, AFL, or any other labor organization which requires its employees to join, or maintain their membership in, such labor organization as a condition of employment, unless such agreement has been authorized as provided by the Na- tional Labor Relations Act, as amended; (b) Recognizing United Garment Workers of America . AFL, or any successor thereto, as the representative of any of its employees at its Parsons, Tennessee , plant for the purposes of dealing with the Respondent concerning grievances, 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; (c) Performing or giving effect to its contract of November 23, 1948, with United Garment Workers of America , AFL, or to any mod- ification , extension , supplement , or renewal thereof, or to any other contract, agreement, or understanding entered into with said organi- zation relating to grievances , 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; (d) In any like or related 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 Amalgamated Clothing Workers of America, CIO', or United Garment Workers of America, AFL, or any other labor organization , to bargain collectively through representatives of their own choosing , to engage in concerted activi- ties for the purposes of collective bargaining , or other mutual aid or protection , or 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from United Garment Workers of America, AFL, as the .representative of any of the Re- SALANT & SALANT, INCORPORATED 221 spondent's employees for the purposes of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said organization shall have been certified by the National Labor Relations Board; (b) Post at its plant at Parsons, Tennessee, copies of the notice attached hereto, marked Appendix A. '3 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Fifteenth Region h, l 2M writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that in all other respects the complaint herein be, and it hereby is, dismissed. APPENDIX A NOTICE TO ALL EMPLOYEES 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 enter into, renew, or enforce any agreement with UNITED GARMENT WORKERS OF AMERICA, AFL, or any other labor organization, Which requires our employees to join, or maintain their membership in, such labor organization, as a condition of employment, unless such agreement has been authorized as pro- vided by the National Labor Relations Act, as amended. 117-E WILL withdraw and withhold all recognition from UNITED GARMENT WORKERS of AMERICA, AFL, as the representative of any of our employees at our Parsons, Tennessee, plant, for the purposes of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until UNITED GARMENT WORKERS OF AMERICA, AFL, shall have been certified by the National., Labor Relations Board as the bargaining representative. 13 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." 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL cease performing or giving effect to our contract of November 23, 1948, with UNrrED GARMENT WORKERS OF AMERICA, AFL, covering employees at our Parsons, Tennessee, plant, or to any modification, extension, supplement, or renewal. thereof, or to any other contract, agreement, or understanding entered into with said organization relating to grievances, 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. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, or UNITED GARMENT WORKERS OF AMEEICA, AFL, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. SALANT & SALANT, INCORPORATED, En7 ploJer. 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. INTERMEDIATE REPORT Messrs. Victor H. Hess, Jr., and TVlllians P. Alexander, for the General Counsel. Messrs. Joseph Martin and R. T. Cochran, for the Respondent. Mr. Harold S. Marthenke, for the Union. Robert A. Wilson, Esq., and Mrs. Ida Lee Merchant, for AFL. STATEMENT OF THE CASE Upon an amended charge and a second amended charge duly filed on December 20, 1946, and May 10, 1948, respectively, by Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued his complaint on May 25, 1948, alleging that Salant & Salant, Incorporated, Parsons, Tennessee, herein called the Respondent, had engaged in, and was engaging in, unfair labor practices affecting commerce, within the meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, til Stat. 136, herein called the Act. SALAI\TT 4 SALANT, INCORPORATED 223 Copies of the complaint, the amended charge, and the second amended charge,, together with notice of hearing thereon, were duly served upon the Respondent, the Union, and United Gaavaent Workers of America, herein called AFL. On June 14, 1948, the Respondent duly filed an answer admitting certain allegations of the complaint with respect to its corporate existence, the nature and extent of the business transacted by it, but denying the alleged unfair labor' practices. With respect to the unfair labor practices, the complaint, as amended, alleged.. in substance, that the Reslmndent (1) (a) on or about September 25, 1946, discharged Charles F. Hayes, (b) on or about November 8, 1946, discharged- James E. Baker, (c) on or about October 22, 1946, discharged Fred Watson, (d) on or about October 29, 1946, discharged Troy E. Johnson, and (e) on or about October 22, 1946, discharged Sidney Fisher, and thereafter refused to reinstate, them, or any of them, because each of them had joined and had assisted the- Union and had engaged in concerted activities with their coworkers for the- purposes of collective bargaining and other mutual aid and protection; (2) since about May 1, 1946, through certain named persons and others, engaged in certain aactivities and made certain statements which acts and statements interfered with,. restrained, and coerced its employees in the exercise of the rights guaranteed in. Section 7 of the Act; and (3) on or about May 1, 1.946, initiated, formed,, sponsored, and promoted the United Garment Workers of America, affiliated with: American Federation of Labor, herein called AFL, and since that date has assisted, dominated, and contributed support thereto, and also has interfered with its administration. Pursuant to notice, a hearing was held in Lexington, Union City, and Paris, all in the State of Tennessee, on various dates between June 24, 1948, and March 1.7, 1949, before Howard Myers, the Trial Examiner duly designated by the Chief Trial Examiner.' The Respondent, the General Counsel, and AFL were repre- sented by counsel; the Union by a representative. 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 opening of the hearing, the motion of AFL to intervene was granted without objection. Thereupon AFL moved to dismiss the allegations of the complaint, as amended, which charged that the Respondent had violated, and was violating, Section 8 (a) (2) with respect to its dealings with AFL., The motion was denied with leave to renew. AFT then filed an answer denying that (1) it had been initiated, sponsored, formed, or promoted by the Resppndent; (2) it had been, or was, assisted, dominated, or supported by the Respondent; (3) its administration had been, or was being, interfered with by the Respondent. AFL then moved that the complaint, as amended, be made more definite and certain and that certain allegations thereof be stricken. The motion was granted in part and denied in part. Before the taking of any evidence, counsel for the Respondent moved to dismiss the complaint, as amended, on the ground that the second amended charge was-- not filed or served within the time prescribed by Section 10 (b) of the Act and further that the acts alleged to have been committed by the Respondent had. taken place more than 6 months prior to the filing and serving of the second ' On or about July 19, 1948 , the undersigned was designated Trial Examiner in the place- and stead of Trial Examiner Charles W. Schneider , who previously had been designated by the Chief Trial Examiner as Trial Examiner to hear this case. Trial Examiner Schneider presided over the hearing on June 24 , 1948, but no oral testimony was introduced on that, date . The undersigned presided on all occasions when oral testimony was introduced. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amended charge. The motion was denied with leave to renew. At the conclusion of the General Counsel's case-in-chief, the Respondent's counsel made various motions to dismiss the complaint, as amended, in its entirety, or, in the alterna- tive, to dismiss certain portions thereof, on the ground of lack of proof. The motions with respect to James E. Baker and Troy E. Johnson were granted and the complaint, as amended, with respect to each of them was dismissed. Likewise, the motions to dismiss certain portions of the complaint, as amended, regarding the alleged violations of Section 8 (a) (1) of the Act were also granted. Decision with respect to the other motions was reserved. Counsel for AFL then renewed his motion to dismiss the complaint as amended, with respect to the allegations thereof that AF I, was formed and has been existing in violation of the Act. Decision thereon was again reserved. At the conclusion of the taking of the evidence, the General Counsel's mo- tion to conform the pleadings to the proof, with respect to minor variances, such as to correct misspelled names and places, was granted without objection. The Respondent's counsel and counsel for AFL then renewed their respective mo- tions upon which decision had been reserved. The undersigned again reserved decision. The motions are disposed of as hereinafter set forth. The parties were then informed that they might file briefs and proposed findings of fact and conclusions of law with the undersigned on or before April 2, 1949.2 Briefs have been received from counsel for the Respondent and from counsel for AFL which have been carefully considered by the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the followings : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Salant & Salant, Incorporated, is a New York corporation having its principal offices in the City and State of New York. The Respondent operates, among others, a plant at Parsons, Tennessee, the employees of which are the only ones involved in this proceeding. At the Parsons plant, the Respondent is engaged, and during all times material herein, has been engaged, in the manufacture, sale, and distribution of men's work pants and men's work shirts. During 1946, the Respondent purchased raw materials, for processing at its Parsons plant, valued in excess of $500,000, ap- proximately all of which were shipped to the said plant from points located outside the State of Tennessee. During the same year, the Respondent manu- factured at the said plant men's work shirts and men's work pants having a value in excess of $500,000, substantially all of which were shipped to customers located outside the State of Tennessee. The undersigned finds that the Respondent, at its Parsons, Tennessee, plant is, and during all times material herein has been, engaged in commerce, within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, and United Garment Workers of America, affiliated 2 Upon the request of the Respondent and AFL, the time was extended to and including June 13, 1949. SALANT & SALANT, INCORPORATED 225 with the American Federation of Labor, are labor organizations admitting to membership employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The alleged interference, restraint, and coercion Prior to the summer of 1946, some of the employees formed a labor organiza- tion , known as Parsons Garment Workers Union. In July or August 1946, the Union commenced an organizational drive and on August 28, Edward Blair, a Nashville office representative of the Union, arrived in Phrsons, distributed leaflets at and near the entrances and exits of the plant, and generally took charge of the campaign. The Union did not hold any meetings in Parsons, but several meetings were held in the City Hall at Lexington, Tennessee, a town about 13 or 14 miles from Parsons. and at the respective homes of 2 or 3 employees who resided in Beacon, Tennessee, which place is located about 2 miles from Parsons. None of these meetings were well attended. At most, only about 30 of the then approximately 385 Parsons plant employees attended any one meeting s In August 1946, the Parsons Garment Workers Union filed with the Regional Director for the appropriate region a Representation Petition. Thereupon the Union moved, and was granted leave, to intervene in that proceeding. Upon the granting of the said motion, the Union then moved to dismiss the said petition on the ground that the Parsons Garment Workers Union was existing in violation of the Act. The said Regional Director granted the motion and dismissed the said petition. On or about September 24, a large majority of the employees of the Parsons plant attended a meeting in a local moving picture theater and there voted to disband the Parsons Garment Workers Union. The employees then decided to, and many of them did, join AFL. Upon being notified by AFL that it represented a majority of the employees, the Respondent agreed to a cross-check. This cross-check was held on October 5, and disclosed that about 95 percent of the employees had designated AFL their collective bargaining representative. Under date of October 7, AFL wrote the New York offices of the Respondent that since the results of the cross-check showed it had been designated the bargaining representative by a vast majority of the employees, it demanded that the Respondent recognize it as such representative and that it set a date for a bargaining conference. 3-.\o meetings were held in Parsons evidently because when Blair and an associate of his were distributing handbills in front of the plant on September 26, 1946, W. H. Long, the then mayor of Parsons, ordered Blair and his associate to leave town immediately. During the course of the hearing, various witnesses called by the General Counsel testified to certain statements made to them by Long and to certain activities engaged in by Long. These statements and activities were violently anti-Union. The General Counsel, however, was unable to Show any connection between Long and the Respondent, other than that Long was a part owner of the building in which the Parsons plant was located. Nor was the General Counsel able to prove that the Respondent (a) had any knowledge or infor- mation of Long's statements or activities at or about the time they were made or engaged in. (b) that the statements or activities of Long were ever brought to the attention of the Respondent prior to the hearing herein, or (c) that the Respondent had ever rati- fied the said statements or activities. The record being thus, the undersigned granted the Respondent's motion to strike from the record all the testimony with respect to the statements and activities of Long . The undersigned is of the opinion, nonetheless, that Long made the statements and engaged in the activities which the various witnesses attributed to him and he so finds. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties met sometime around the middle of November. Thereafter, and on December 4, a collective bargaining contract was executed, effective as of December 2, 1946. In the interim, the Union, under date of October 2, wrote the Respondent's New York offices that the Union had "an interest" in the designation of the employees' bargaining representative and requested the Respondent to take cognizance of that fact. Again on November 15 and on November 18, the Union wrote the Respondent's New York offices along similar lines. It is to be noted that in none of the letters to the Respondent did the Union claim to represent a majority of the employees or did the letters request the Respondent to deal with the Union as representative of any of the employees. The record clearly shows that the Union at no time represented a substantial number of the employees. The General Counsel not only relies upon the above incidents in support of his contention that AFL was formed at the behest of the Respondent and that it has been existing with the aid and support of the Respondent, but also upon the testimony of Jesse Perkins and Erby Sullivan. Perkins testified credibly and without contradiction,' as follows : He worked as a truck driver for Hayes Freight Lines and occasionally picked up freight at the Parsons plant; that around August 1.5, 1946, he and Superintendent White of the Parsons plant had a conversation wherein White asked him how he liked his union the Teamsters) ; that he replied he was satisfied with it; that White then said, to quote Perkins, "Well, I would rather not have any union but I would rather have the [American Federation of Labor] than the CIO" but I cannot "have anything to say on either side." Erby Sullivan testified credibly as follows : He signed an AFL membership application card in September 1946, at the request of Ollie Wilkins, a mechanic employed at the Parsons plant; that the said card was signed in the phint's rest room ; that after signing the card, and after handing it to Wilkins, he and Wilkins left the rest room; that he returned to his place of work and Wilkins returned to the machine shop; that on his way to the machine shop Wilkins showed Foreman Donald Bangs the signed membership application card; that Bangs looked at the card, but made no comment; and that Wilkins then put the card in a drawer of the table that Wilkins used. It is thus clear that the evidence does not support the General Counsel's con- tention. The most that can be said about the Sullivan incident is that a fellow employee, after having secured Sullivan's signature to an AFL card, showed the card to a supervisory employee. No comment, however, was made by either the supervisor or by the person who showed the card. There is no evidence, further- more, that the supervisor aided in obtaining Sullivan's signature to the card, or that the signature was obtained at the request or suggestion of the supervisor. With respect to the Perkins incident, it is clear that White only expressed his personal views to a person who was not an employee of the Respondent and who had no connection with any of the then three competing unions. The statement is protected, furthermore, by Section 8 (c) of the Act. Even assuming that it were not so protected, there is no evidence that any of the Respondent's em- ployees, or anyone connected with any of the competing unions, was ever informed of White's utterances. It is true that the statements were made during the time that the so-called Wagner Act was in effect, but under that Act the said statement was permissible. The Respondent called no witnesses. It rested its case at the conclusion of the General Counsel 's case-in-chief. SALANT & SALANT, INCORPORATED 227 The fact that the Respondent executed a collective bargaining contract with AFL in face of the above-mentioned letters of the Union does not prove that the Respondent violated the Act thereby or that it thereby gave illegal support to AFL. Admittedly, the Union never (a) had a substantial number of members among the employees of the Parsons plant, (b) claimed a majority repre- sentation, or (c) asked the Respondent to bargain collectively for any group or number of employees. The mere writing of the said letters of October and November 1946, was not sufficient to keep the Respondent from legally dealing with AFL, which had demonstrated that it represented about 95 percent of the employees. Under the circumstances, the undersigned is of the opinion, and finds, that the evidence does not support the allegations of the complaint, as amended, that the Respondent had initiated, formed, sponsored, or promoted AFL and thereafter had assisted, dominated, contributed support thereto, or had inter- fered with its administration. The undersigned further finds that the state- ments of Plant Superintendent White to Perkins, as set forth above, and Fore- man Bangs' looking at Sullivan's signed AFL card were not violative of the Act. Accordingly, the undersigned will recommend that the allegations of the com- plaint, as amended, that the Respondent had violated Section S (a) (2) of the Act, and through the said statement of White and through the said action of Bangs had violated Section S (a) (1) of the Act, be dismissed. B. l'lhe allcged discriminatory discharges Charles F. Hayes was first employed at the Parsons plant in March 1943. He was first assigned to sorting and sizing pants and then was made a checker in the shipping -department. During his entire employment he was under the supervision of Foreman Cleveland Yates. In duly or August 1.946, Hayes signed a membership application card of the Union. Thereafter, he attended meetings at Lexington, Tennessee, and at the home of an employee in Beacon, Tennessee ; he solicited members for the Union and distributed several membership application cards in Beacon and on the bus to and from work ; and spoke to some of his fellow employees in the plant regarding the Union. Hayes testified, and the undersigned finds, that he talked "a lot" about the Union while riding to and from work on the bus; that he "thought" Dorothy Wallace was on the bus when he spoke about the Union: that he "thought" Wallace was a forelady "at that time" ; and that he "thought" she was a forelady at the time of hearing. There is, however, absolutely no credible evidence in the record that Dorothy Wallace was a forelady at the Parsons plant at the time in question or at the time of the hearing. Furthermore, there is no evidence whatsoever that Wallace heard Hayes' remarks about the Union. Regarding a conversation he had with Head Mechanic Wheat in August 1946, Hayes testified, and the undersigned finds, as follows : Who I thought the union was going to be, did I reckon was that would come into the plant. I told him I don't know. He says how does the boys in the shipping department feel about it. I told him, well, I hadn't heard very much talk about it. Hayes also testified, and the undersigned finds, that sometime during his em- ployment, the (late being undisclosed, he and Foreman Cleveland Yates had a conversation where the following ensued: 877353-50-vol. 87-16 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Well, I remember back when the coal strike was on, Mr. Yates said he didn't know whether he was going to be able to get coal to operate or not through the winter for the plant . He said the strike looked like it was causing a lot of trouble . I told him I thought the Unions could go to extremes like anybody else, but I was more sold for the C. I. O. if I ever got a chance , I would join it, than I Was the U. M. W. Regarding the events that took place immediately preceding his discharge on September 25, 1946, Hayes testified , on direct examination , credibly as follows : Q. Now, then , sir, will you please tell us the circumstances surrounding your discharge? A. Well, we was-we had an order there for shipment that the pick-up boy had brought up and I checked the size of the pants and laid it on the table and Myracle ( a fellow employee ) picks them up and puts them in the box. Then he piles them back out of the box and says, "There is 24 pair too many." Well, Mr. White , lie walked up and says, "What 's wrong with that order"? Mr. Myracle told him that there was 24 pair of pants too many, the way he counted them . And he (White) said to me, he says, "That's what I have been catching hell about." He says, "I have a letter here in the office . I'll go get it and read it to you." He went up there and come back with the letter and said there had been mistakes on pants orders, first one thing and another . They (the New York offices of the Respondent) didn't see why-he didn 't see-how lie state it-"I don 't know whether they don't care or just don 't give a damn or can't do it-why don 't you fire them"?-something like that is the way he read it, and he told me, "If that is the best you can do you just might as well check out." So we went to the clock and got my card and checked out. I asked Mr. AVbite, "Well, what are you going to put on the separation slip"? He said, "Mistake in pants orders." I said, "You can put anything on there you want to , but I don't believe it because I think you fired me for union activities." Hayes admitted that it was part of his duties to check the lot members , sizes, and quantities of merchandise against the orders brought to the shipping de- partment ; that for a period of approximately 3 or 4 months immediately prior to his discharge , White and Foreman Yates had complained to him about the errors of overage and shortages in orders that he and the other shipping depart- ment employees were making ; that White told him several times there were complaints from the Respondent ' s New York offices about the overages and shortages ; that on one occasion White showed him a letter complaining about a certain order which the Parsons plant received from the New York offices, asked him to read the letter , and then he should read it to the other shipping department employees ; and that he did not wear any union button or told any supervisor , prior to his discharge , that he was a member of the Union. Outside of telling Yates that he preferred the CIO to the United Mine Workers there is absolutely no evidence that any supervisor knew that Hayes had any sympathetic leaning towards the Union . In his conversations with Head Me- chanic Wheat, Hayes did not say that he preferred the Union to AFL or that he had any interest in either Union. In short , the record is barren of any evidence upon which .a finding can be made that the Respondent had any knowl- edge at the tire, it discharged Hayes that he was in any way connected with the Union or had engaged in any concerted activities protected by the Act. Under the circumstances, the undersigned finds that Hayes was discharged for cause and not for the reason alleged in the complaint, as amended . Accordingly, the SALANT & SALANT, INCORPORATED 229 undersigned will recommend that the complaint, as amended, be dismissed as to Hayes. Fred TPatson and. Sidney Fisher were employed at the Parsons plant as cloth spreaders. The former was first employed in July 1945, and the latter in January 1946. Both were discharged on October 22, 1946, under the following circumstances: On October 19, Phlake Tucker, the foreman of Watson and Fisher, came to where they were working and asked how many plys of cloth they lacked ; they replied about five ply; Tucker then said they would "have to do better than that" and if they did not then he would get somebody who could; Watson replied, to quote Watson, "If he (Tucker) didn't like my work, I was ready to quit" ; Tucker said that he was not satisfied with their production and left the table at which Watson and Fisher were working; Watson and Fisher then went to Foreman Bangs and related to him what had transpired between them and 'ucker ; Bangs told Watson and Fisher to return to their table, adding that their production was satisfactory and that he would take the matter up with Tucker. On October 22, just before quitting time, Tucker came to Watson and Fisher and said, to quote Fisher's credited testimony, "he would just let us go," saying something to the effect that the spreaders "had it in" for him. Whereupon, Watson and Fisher checked out at quitting time and left the plant. The following morning, October 23, they returned to the plant to get the wages due them and their separation slips. They talked to White, who gave to. each of them their respective wages due and their respective separation slips. The slips bore notations "Disagreed with foreman. Quit work." Several hours later, Watson and Fisher returned to the plant, informed White that they could not draw unemployment compensation due to the notation "Quit work" on the separation slips and requested White to change "Quit work" to "discharged." - White did as requested. The contentions of the General Counsel that Watson and Fisher were dis- charged because of their membership and activities in behalf of the Union and because each of them had engaged in certain concerted activities protected by the Act are not supported by the record. In support of his contention that Watson was discharged in violation of the Act, the General Counsel strongly relies on a letter given to Watson, at his re- quest, on November 3, 1946, by the Respondent. The body of the letter states : This is to certify that Fred Watson worked for us from July 5, 1945, until October 21, 1946. He was a spreader in our shirt department at the time he quit work. We found that he attended his work regularly and his work was always satisfactory. He had no bad habits and has a good moral character. Watson joined the Union on September 16, 1946, about a month later joined AFL, and was a member of each union at the time of his discharge. There is no evidence whatsoever that the Respondent: had any knowlsrge or information that he had joined, or was a member of, either union. He wore no button or emblem of either union and had no conversation with any supervisor regarding unions. His activities in behalf of the Union were limited to attending one meeting in Lexington, Tennessee. On the other hand, he attended a "few" AFL meetings in Parsons, Tennessee. There is some indication in the record that Watson and Fisher could not get along with Tucker and for that reason their services were terminated on October 22, 1h46. Whether Watson quit or was discharged for cause is a question that need not be resolved here. The fact remains, as the record as a 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whole clearly shows, Watson's termination of employment was brought about for reasons unrelated and foreign to his membership and activities in behalf of the Union or to the engagement by him in any protected concerted activities, and the undersigned so finds. At his request, the Respondent gave Fisher a letter of recommendation, dated November 6, 1946, reading in part, as follows : This is to certify that Sidney Fisher worked for -us from January 21, 1946 until October 21, 1946. He was faithful to his work and attended his work regularly. We found him to have no bad habits and of good morals. He was a spreader in our shirt cutting department while employed by us. Fisher joined the Parsons Garment Workers Union ; thereafter, and on or about September 16, 1946, he joined the Union ; and joined AFL prior to his discharge on October 22, 1946. Upon that date, Fisher was a member of both the Union and the AFL. Pike the case of Watson, there is no evidence in the record that the Respondent had any knowledge or information that Fisher was a member of any union. He wore no button or displayed no other evidence of men:bershi.p in either AFL or the Union. The extent of activities in behalf of the Union was limited to attending one meeting in Lexington and two at the Beacon home of one of the employees. As found above, there is some indication in the record regarding the inability of Watson and Fisher to get along with Tucker. Besides, Fisher admitted that on about a half dozen occasions, prior to his discharge, Tucker reprimanded him and Watson for their low production. , Whether Fisher quit or was discharged for cause is a question of little import and need not be resolved here. As in Watson's case, the record clearly shows that Fisher's membership and activities in behalf of the Union played no part in the ultimate termination of his em- ployment with the Respondent and the undersigned so finds. Accordingly, the undersigned will recommend that the allegations of the complaint, as amended, with respect to Watson and Fisher be dismissed. C. The contrast between the Respondent and AFL, dated December 111 19116 Pursuant to a cross-check agreement, the membership application cards signed by the Parsons plant employees were checked against the records of the Re- spondent on October 5, 1940. The results of the check showed that about 95 percent of the employees had designated AFL their collective bargaining repre- sentative. There is no evidence that the said employees did not designate AFL freely and without coercion by the-Respondent or AFL. Thereafter and on or about December 4, 1946, a collective bargaining agreement was entered into by and between the Respondent and the AFL containing a clause reading as follows : ARTICLE 11-UNION ST' CURI'TY Sac. S. All employees covered by this contract shall become members of the Union. Inexperienced employees shall become members of the Union four (4) weeks after they are first employed. SEC. 2. The Company expressly reserves' the right to employ wvhouisoever it pleases, but all employees subject to this Agreement shall become and remain members of the Union, as indicated above. The said contract also provided for a check-off of dues upon individual written authorization by the employees. Beginning on July 1, 1948, the Respondent SALANT & SALANT, INCORPORATED 231 refused to honor the check-off authorizations in force since December 4, 1946, and insisted and obtained a new form of authorization. By its terms the December 4, 1946, agreement was to remain in full force and effect until December 1, 1947, and was to be automatically renewed unless one of the parties notified the other party 60 days prior to December 1, 1947, of its desire to terminate the agreement. No notice of termination was given and thus the contract remained in full force and effect until December 1, 1948. Under date of November 23, 1948, the Respondent and AFL entered into a 2-year contract, effective December 1, 19=18, with provision to terminate on Decem- her 1, 1949, upon proper notice by either party to the other. This new contract has no provision for any union security. There is no dispute as to the foregoing facts or to the fact that no election was held, or requested, under Section 9 (e) of the Act. The issue, as it arises from them, turns on the question of whether or not the contract is violative of the Act. The clause of the contract under attack does not contain any provision which requires membership in good standing in AFL as a condition to obtain or retain employment with the Respondent. The most it does is to require the employees in the Respondent's employ on December 4, 1946, to join AFL and all "new" employees to join after a specified time. This part of the agreement contains no language that can be construed to mean that any "old" employee or any "new" employee, after the specified time, must be discharged by the Respondent if the employee does not join AFL and maintain membership in good standing therein. Furthermore, there is no requirement in the agreement which imposes a duty upon the Respondent to see that the "old" employees join AFL at any time or that "new" employees join within the specified time. The agreement is likewise silent as to the obligations of the "old" and the "new" employees to maintain membership in AFL after becoming members thereof. There is no contention that the contract was not valid when made. The Gen- eral Counsel contends that the renewal thereof on December 1, 1947, was violative of the Act. With this contention the undersigned cannot concur. Proviso to Section 8 (a) (3) of the Act states: . . . nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organiza- tion . . . to require as a condition of employment mn,embership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, . . , (ii) if, follow- ing the most recent election held as provided in section 9 (e) the Board shall have certified that at least a majority of the employees eligible to vote in such, election have voted to authorize such labor organization to make such en agreement. . . . [Emphasis supplied.] Since it has been found that the agreement does not "require as a condition of employment" with the Respondent membership in AFL, it necessarily follows that the agreement is not violative of the Act. Accordingly, the undersigned will recommend that the allegations of the complaint, as amended, that the Respondent violated Section 8 (a) (1) of the Act with respect to the said agree- ment be dismissed. Furthermore, the entire question of the validity of the union-security clause of the December 4, 1946, contract had become moot to a certain extent, at the time of the issuance of the "Second Amendment To Com- plaint" on January 14, 1949, because the contract by its terms had expired, and had been superseded by a contract not only containing no union-security clause, but expressly stating that the Act, under certain conditions, and the Laws of Ten- 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nessee, prohibited the making of a collective bargaining contract containing a union-shop provision. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. The operations of Salant & Salant, Incorporated, at its Parsons, Tennessee, plant, is, and at all times material herein has been, engaged in commerce, within the meaning of Section 2 (6) and (7) of the Act. 2. Amalgamated Clothing Workers of America, affiliated With the Congress of Industrial Organizations, and United Garment Workers of America, affiliated with the American Federation of Labor, are labor organizations, within the meaning of Section 2 (5) of the Act. 3. The allegations of the complaint, as amended, that the Respondent has engaged in, and was engaging in, unfair labor practices, within the meaning of Section 8 (a) (1), (2), and (3) have not been sustained. RECOMMENDATIONS It is recommended that the complaint be dismissed in its entirety. 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, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recom- mended Order 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 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 state- ment of exceptions and/or briefs, the party filing the same shall serve e copy thereof upon each of the other parties. Statements of exceptions and briefs shrill 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 Bonrd 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 18th day of July 1949. HOWARD MYERS, Trial E.ran,in('V.