Brown Garment Manufacturing Co.

In the Matter of BROWN GARMENT MANUFACTURING COMPANY and IN- TERNATIONAL LADIES' GARMENT WORKERS' UNION, LOCAL 386, AFFILI- ATED WITH THE AMERICAN FEDERATION OF LABOR Case No. 15-C-981.-Decided June 25, 1945 Mr. Leroy Marceau, for the Board. 117r. L. B. Burrow, of Little Rock, Ark., for the respondent. 1V1r. Morris J. Levin, of St. Louis, Mo., for the Union. Buzbee, Harrison & Wright, by Mr. Edward L. Wright, of Little Rock, Ark., for the "Committee." 11Ir. William R. Cameron, of counsel to the Board. DECISION AND ORDER STATEMENT OF TIIE CASE Upon a charge duly filed on June 12, 1944, by International Ladies' Garment Workers' Union, Local 386, affiliated with the American Federa- tion of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued its complaint dated July 18, 1944, against Brown Garment Manufacturing Company, Little Rock, Arkansas, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in sub- stance : (1) that, on or about June 6, 7, and 12, 1944, the respondent dis- couraged membership in the Union by discriminating in regard to the hire and tenure of employment of 12 employees,' in that on those dates the re- 1 Eudie Hoover , Mary Brantley, referred to in the complaint as Brantly , Minnie Poorbaugh, Lena McCormack , Dorothy Kuykendall , Alma Foster , Fannie Bickford, Carrie Parker, Cora Maddox, Leona Bryant, Viola Lucas, and Velma Dare 62 N. L. R. B, No. 107. 857 858 DECISLONS OFF NATIONAL LABOR RELATIONS BOARD spondent approved of and assisted the actions of certain non-union em- ployees in preventing the above-named employees from working in the plant since the above dates, for the reason that they had joined and assisted the Union; (2) that, on or about June 12, 1944, the respondent discrimina- torily discharged employee Ethel Mullins because of her adherence to the Union and her refusal to designate a rival organization as her representa- tive, and (3) that, by the above acts, and by stating to employees (a) that it they joined the Union, the plant would be closed down, (b) that super- visory employees would fight the Union; and (c) that if the employees be- longed to the Union, they would be "beat up," the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.` Thereafter, the respondent filed its answer in which it admitted certain allegations in the complaint with respect to the nature of its business and that the Union is a labor organization within the meaning of Section 2 (5) of the Act, but denied the allegations respecting the unfair labor practices. Pursuant to notice, a hearing was held at Little Rock, Arkansas, on August 11, 12, 14, and 15, 1944, before Henry J. Kent, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respond- ent were represented by counsel and participated in the hearing.' All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence hearing upon the issues. During the .course of the hearing, the Trial Examiner made various rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner made during the course of the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. After the conclusion of the hearing, the respondent and the'attor- riey for the Board filed briefs with the Trial Examiner. On November 10, 1944, the Trial Examiner issued his Intermediate Deport, copies of which were duly served upon the respondent and the Union In the Intermediate Report the Trial Examiner found that the respondent had engaged in certain unfair labor practices affecting commerce and recommended that it cease and desist therefrom and take certain affirm- 2 The complaint contained no allegation that the respondent had engaged in or was engaging in any unfair labor practice within the meaning of Section 8 (2) of the Act , and made no reference by name to a "Committee," more fully referred to hereinafter , although it was therein alleged, as above mentioned, that the respondent discharged Ethel Mullins for refusing to designate a "rival organization" as her representative a While Airs Edith Rollans , Mrs. Jessie Greer, and Ida Harvey , who constituted the "Commit. tee," each appeared as a witness at the hearing , and Rollans and Greer testified concerning the formation of the "Committee" and circulation of a petition designating these persons as collective bargaining representatives , the "Committee" was not made a party and, as such , did not appear or participate in the hearing The Union was not represented at the hearing BROWN GARMENT MANUFACTURING COMPANY 859 ative action .' Thereafter, on November 29, 1944, the respondent filed ex- ceptions to the Intermediate Report and a supporting brief. None of the parties requested oral argument before the Board at Washington , D. C., and none was held. On November 20, 1944, subsequent to the issuance by the Trial Exam- iner of his Intermediate Report, the Union filed an amended charge in which it alleged , in addition to the matters set forth in its original charge. that the respondent had dominated and interfered with the formation and selection among its employees of a labor organization known as the "Com- mittee," composed of Mrs. Edith Rollans , Mrs. Jessie Greer , and Ida 1-lar-vey . On January 11, 1945, the Union filed a motion to reopen the record for consideration of its allegation that the respondent had engaged in unfair labor practices within the meaning of Section 8 ( 2) of the Act as set forth in its amended charge , and to adduce such further evidence as. might be required in connection therewith . On January 15, 1945, the respondent filed its response to the motion , requesting that it be denied . On January 18. 1945, the Board issued an order reopening the record , remanding the proceeding to the Regional Director and authorizing the Regional Director to issue notice of further hearing. On February 2, 1945 , the Board, by the Regional Director for the Fifteenth Region, issued its amended com- plaint against the respondent , alleging that the respondent had engaged n0 and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and ( 3) and Section 2 (6) and ( 7) of the Act. With regard to the unfair labor practices , the amended complaint con- tained the sane allegations as those set forth in the original complaint, to- gefher with the additional allegation , in substance, that the respondent had dominated and interfered with, and was dominating and interfering with the formation and administration of the "Committee " On the same date, the respondent filed its amended answer to the amended complaint , in which it admitted the allegations of the amended complaint relating to the nature of its business and that the Union and the "Committee" each is a labor organization within the meaning of the Act but denied all allegations of the amended complaint relating to unfair labor practices . Also on the same date. the "Committee" filed its answer to the amended complaint, making ' In substance, the Trial Examiner found that, by discharging Mary Brantly, Alma Foster , Fannie Bickford, Leona Bryant , Viola Lucas, Velma Dare, Ethel Mullins , Eudie Hoover , Minnie Poor- baugh, Lena McCormack , Dorothy Kuykendall , Carrie Parker , and Cora Maddox , the respondent had engaged in unfair labor practices within the meaning of Section 8 (3) of the Act, lie also found that, by discharging the above -named employees , by contributing support to the "Committee," by condoning and concurring in the lock-out of union members, and by certain other acts of interference with, restraint, and coercion of its employees in the exercise of the rights guaranteed in Section 7 of the Act , the respondent had engaged in unfair labor pi actices within the meaning of Section 8 (I) of the Act . In his Intermediate Report the Trial Examiner stated that the record indicated that the "Committee" was an employer-dominated labor organisation, but since the complaint contained no allegation that the respondent had violated Section 8 (2) of the Act, he inade no finding that the "Committee" was an illegal organization within the meaning of Section 8 (2) of the Act 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the same admissions and denials as those contained in the amended answer of the respondent. On February 3, 1945, the parties, including the respondent, the Union, the "Committee," and the attorney for the Board, entered into a stipulation in which they agreed, in substance : (1) that the "Committee" is a labor organization within the meaning of Section 2 (5) of the Act; (2) that the "Committee" thereby be made a party to this proceeding, (3) that the amended charge, amended complaint, amended answer of the respondent, and the answer of the "Committee" be received in evidence, and that all parties acknowledge proper service of each of the foregoing pleadings ; and (4) that this case might thereafter proceed as though the charge, the complaint, and the answer of the respondent had originally issued in their present form as amended and as though the "Committee" had been a party and had filed its answer "at that time." In the stipulation, the "Committee" expressly waived all right to object on the ground that it was not a party from the beginning and was not represented at the hearing, and all parties expressly waived the right to object on the ground that the additional issues raised by the amended pleadings were not issues at the time of the hearing.' All parties jointly moved the Board to approve the stipulation, to close the i ecord, and .to proceed without further hearing. On March 1, 1945, the Board issued an order approving the stipulation, together with a notice providing that the parties should have until March 15, 1945, to file any objections and stating that, unless sufficient cause to the contrary should have appeared, the Board, pursuant to the stipulation, would regard the issue relating to alleged domination of the "-Committee" in violation of Section 8 (2) of the Act as having been litigated, and would regard itself as not precluded from entering an appropriate order in the event that the allegations respecting violation of Section 8 (2) are found to be sustained by the evidence. Copies of this order and notice were duly served upon the respondent, the Union, and counsel for the "Committee." Also, on March 1, 1945, the "Committee" filed its exceptions to the Inter- mediate Report and a supporting brief. No objections to the procedure proposed in the Board's Order of March 1, 1945, have been filed by any of the parties Accordingly, we deem all issues raised by the amended complaint, the amended answer of the respondent, and the answer of the "Committee," as having been litigated and thus appropriate for determina- tion by the Board. The Board has considered the Intermediate Report, the respondent's exceptions and brief, the exceptions and brief of the "Committee," and the entire record in the case, and finds that the exceptions are without merit 5 As set forth ahove, the amended charge and complaint differ 'from the original charge and com- plaint only in that the amended pleadings contain the additional allegation that the "Comittee" is employer dominated within the meaning of Section 8 (2) of the Act. BROWN GARMENT MANUFACTURING COMPANY 861 insofar as they are inconsistent with the findings , conclusions , and order hereinafter set forth. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Brown Garment Manufacturing Company, an Arkansas corporation, operates a plant in Little Rock, Arkansas, where it is engaged in the mantt- facture, sale, and distribution of men's pants. About 65 percent of the respondent's product is sold to the United States Government for use by the armed forces, and the balance to dealers for resale to the general public. it employs approximately 150 employees. The major portion of the raw materials processed by the respondent is purchased in other States of the United States and transported by various instrumentalities of interstate commerce to its Little Rock plant. The major portion of its finished prod- ucts is shipped to various States of the United States for sale or use outside the State of Arkansas. We find that the respondent is engaged in commerce within the meaning of the National-Labor Relations Act. II. THE ORGANIZATIONS INVOLVED International Ladies' Garment Workers' Union, Local 386, affiliated with the American Federation of Labor , is a labor organization admitting to membership employees of the respondent. The "Connuittee " is an unaffiliated labor organization representing em- ployees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Background In 1941, the Union attempted to organize the employees in the plant. Employee Ethel Mullins testified without contradiction that, during this organizational drive, she asked Plant Superintendent Robert Riding for his opinion of the Union Riding then asked her who had been talking to her about the Union, and she named an employee known as "Tony." Thereupon Riding immediately discharged "Tony."° Shortly thereafter , anti-union employees in the plant prevented union adherents from coming into the plant to work According to the testimony of Jerry T. Brown , the respon- (lent's pre,ident, the 1941 lock-out of union employees only lasted a few- days , and he persuaded the anti-union employees to permit the union 8 Riding is no longer the plant superintendent 862 DECISIONS OF NATIONAL LABOR RELATIONS 13OARD employees to return to work,' The Union's activities ceased shortly after these employees returned to work. B Interference, restraint, and coercion In December 1943, the Union commenced another organizational drive among the respondent's employees. Many employees signed application cards of the Union during the latter part of December 1943, or early in January 1944 Thelma Taylor,' one of the respondent's floorladies,s admitted in her testimony that, in January 1944, shortly after the Union resumed activities, she and employee Mary Lou Hicks circulated an anti-union petition. This petition bore the heading "Non-Union," and was circulated in the plant during working hours Taylor continued to solicit signatures thereto until testimony that, in January 1944, shortly after the Union resumed activities, some months later Employee Poorbaugh testified without contradiction, which testimony we find to be credible and accept as true, that Floorlady Taylor requested Poorbaugh and employee Carrie Parker to sign the above petition while they-were at work, and that, when they refused, Taylor remarked, "we kept it [the Union] out in 1941, and we are going to do it again." Four or five anti-union meetings were held at the Brown Dot Cafe in Lit- tle Rock on various dates between January and June, 1944. Taylor ad- 7 There being no allegations in the complaint respecting the lock -out in 1941 or that the discharge of "Tony" was discriminatory , we make no finding of unfair labir practices based on these incidents. 8 Taylor's name appears in the testimony as either Goforth or Taylor We herein use the name of Taylor to identify her. Taylor testified that she was employed as a floorlady in the plant for the past 5 years The manu- facturing processes are principally carried on by means of 2 production lines, one being known as the commercial line, on which about 50 sewing machine operators are employed, and the other as the government line, on which about 75 operators are employed Taylor is in charge of the commercial line, and Minnie Clark is in charge of the government line They are known as, and are called, floor- ladies by the employees on the respective lines and they serve as intermediaries for transmitting to the production employees orders and working instructions from Plant Superintendent Mastin, the production manager of the plant. They are paid 70 cents per hour straight time, while the ordinary production employee receives a minimum base rate of 40 cents per hour . President Brown testified that Taylor "helps keep the work straight and that means keeping it straight from the time it leaves the cutting room until it comes out at the other end of the line, finished ." Floorladies instruct new employees concerning their work , inspect and criticize the work of the employees on their respective lines, report derelictions of duty to Mastin and follow his instructions regarding reprimands which they make to such delinquent employees Taylor generally interviews all applicants for employment on her line in respect to their qualifications and makes recommendations to Mastin concerning them. While Brown and Masten testified that the floorladies have no authority to hire or discharge em- ployees, Masten said that he confers with Taylor respecting the qualifications of employees and reposes confidence in her judgment . Customarily, Taylor notifies new employees , who are to work on her line, when to report for duty ; and employee Minnie Poorbaugh testified that Taylor hired her in September 1943 , without first submitting the matter to Mastin for approval . Taylor genially denied that she ever hired an employee without Mastin 's approval , but did not specifically deny Poor- baugh's testimony In view of Taylor's long experience on her job and the confidence reposed in her by Masten . it would seem probably that she may , at times, have exceeded her actual authority. Upon the record as a whole we conclude, as did the Trial Examiner , who based his conclusion also upon his observation of the witnesses , that Taylor hired Poorbaugh without obtaining the prior consent of Mastin BROWN GARMENT MANUFACTURING COMPANY 863 dressed the employees present at these meetings respecting the attempt of the Union to organize the respondent's employees, and, on some of these occasions, requested them to ascertain which employees were in favor of the Union and which of them were opposed to it in order, as she advised them, that steps might be takeii to keep the Union from organizing the plant. According to employee Eudie Hoover's uncontradicted testimony which we credit, as did the Trial Examiner, at one of these meetings,' Tay- lor stated in substance that she had previously entertained doubts respect- ing her right to engage in anti-union activities because she was a floorlady in the plant, but that she had since learned that she could engage in such activities and that she was going to fight the Union "for all there is in it." Taylor further admitted at the hearing that she prepared and circulated iii the plant another petition, addressed to the Union, stating that the sig- natories desired the Union to destroy or return their union cards Some union adherents acceded to Taylor's request to sign the petition and others voluntarily offered to sign it after she started to circulate it. Taylor mailed this petition to the Union.' Rollans, who succeeded Taylor as the leader of the anti-union activities in the plant, testified that she sponsored anti-union activities because the Union's activities interfered with production The evidence, however, fails to substantiate this claim 12 Employee Leona Bryant, who signed a union card in December 1943 or January 1944, testified that, sometime later, she and employee Mary Brant- ly engaged in a conversation with Superintendent Mastin in Jendy's res- taurant in Little Rock and that, on this occasion, Mastin told them that, if the Union succeeded in organizing the plant, President Brown would close it down.1' In his testimony, Mastin denied that he had made the above statements to Bryant and further denied that he had ever been told by Brown that the plant would be closed if the Union organized it. A considera- tion of Mastin's testimony indicates that Mastin was inclined to be evasive and that his recollection cannot be relied upon. On the other hand, Bryant appeared to be a trustworthy and reliable witness. Accordingly, her testi- mony is accepted as credible and true and we find, as did the Trial Exam- iner, that Mastin made the above statement attributed to him by Bryant. 10 Rollans testified that she called the meeting at the request of Taylor, and that she posted a notice in the plant near the time clock stating that a meeting of employees would be held in the Brown Dot Cafe after work on that day. u The petition was not offered in evidence, and the time when it was circulated and mailed to the Union is not shown in the record. 12 Since most of the employees are paid on a piece-rate basis, it is obvious that a slowing down of production would reduce their earnings The production records, which indicate the hours worked and the weekly production output in the plant from January to June 6, 1944, the latter date being the day on which the union employees were locked out of the plant, as discussed below, show no appreciable change in the weekly output 13 Brantly is no longer living in Little Rock and was not called to testify. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent denies that Taylor is a supervisory employee and con- tends that the respondent is not responsible for her anti-union activities. We find no merit in the respondent's contention. Taylor acts for the re- spondent in giving the commercial line employees their work instructions and in criticizing, inspecting, and reporting on the quality of their work and conduct to Plant Superintendent Mastin. Since Masten admits that he reposes confidence in her judgment, it is a fair inference that her recom- mendations affect the status of employees. She is primarily responsible for the maintenance of production quotas on her line, and she interviews appli- cants for employment respecting their qualifications and experience. While she has no actual authority to hire or discharge, she did on one occasion lure an employee without Mastin's prior approval. Under the circumstances shown above, it is clear that Taylor exercised general authority over the employees and that "the employees would have just cause to believe ... [that Taylor was] ... acting for and on behalf of the management f1' Moreover, since the respondent's plant is comparatively small, and Taylor's numerous anti-union activities were openly carried on over a period of 6 months dur- ing working hours in the plant at a time when the Union was actively engaged in an attempt to organize the employees, we believe it unlikely that President Brown and Superintendent Mastin could have been unaware of these activities. Under the circumstances, it may be fairly inferred and we conclude, as did the Trial Examiner, that Taylor's anti-union activities, referred to above, were at least condoned by the respondent. As the courts have held, an employer may be responsible for the anti-union acts of agents although the acts were not expressly authorized or might not be attributed to him on strict application of the rules of "respondent superior."" It is clear and we find that Taylor is a supervisory employee and that the respondent is responsible for the statements and activities of Taylor and Mastin. Upon the entire record, we conclude and find, as did the Trial Examiner, that by threatening to close its plant if the Union succeeded in organizing its employees, by threatening to lock out union adherents again, as had been done in 1941, by permitting two anti-union petitions to be circulated in the plant, the first for the purpose of inducnig its employees to refrain from joining the Union, and the second, to induce its employees to withdraw from membership in the Union, the respondent engaged in a course of con- duct which interfered with, restrained, and coerced its employees in the exercise of the right,, guaranteed in Section 7 of the Act. 14 See , for example , Intel national Ass'n of Mathnnsts v N L R B , 311 U S 72 t" See, fot example, Tate, national Ass'u of Machinists v N L R , B , 311 U S 72, N L R B v Latster-Kanjftnanit Atruaft Cozp, 144 F (2d) 9 (C C A 8), enfo,czng 52 A' L R B 261 BROWN GARMENT MANUFACTURING COMPANY 865 C. The lock-out On or before June 6, 1944, according to the testimony of Floorlady Taylor and of employee Rollans, which we credit, Taylor, Rollans, and en-1- ployees Harvey and Armstrong went to President Brown's office where the following conversation with Brown occurred : We asked if he could do anything about keeping the Union out. He said he did not understand what we meant, and [said] if we wanted a Union we could have a Union. We told him that we did not want a Union, but wanted to know what to do to keep the Union out. He said there was nothing he could do 16 Employee Hoover testified that, prior to June 5, 1944, she complained about her wages. Hoover testified further that she had been an employee for 7 years; that, a few months after December 6, 1943, when she joined the Union, she was transferred from the government line to the commercial line, that she was put to work on a slow machine ; that, thereafter, in some weeks she could not earn the minimum weekly wages according to the piece- rate standards set by the respondent; and that she complained to the Union respecting the change in her working conditions.'' On June 5, Field Exam- iner Rush F. Hall, an agent for the Board employed in the New Orleans Regional Office, called on President Brown to investigate a complaint made by the Union respecting Hoover. Hoover was called into Brown's office and her grievance teas discussed with Brown and Superintendent Mastin in the presence of Hall As a result, the respondent agreed to transfer Hoover to a faster machine." Rumors of the matters discussed in Hoover's case during the above conference circulated among the employees that day. Rol- lans testified that she heard, among other things, that Hoover had requested to be transferred to Rollans' machine. Also on the same day, according to the uncontradicted testimony of employee Ethel Mullins, which we credit, Rollans asked Mullins to participate in a lock out of union employees similar to the one which had occurred in 1941. That night, Floorlady Tay- lor told Betty Duncan, a neighbor of Taylor's, during a visit at Taylor's house, according to Duncan's testimony, that Taylor had to go to the plant is in view of the fact that Taylor took an active part in the 1941 lockout discussed above, it is significant that Brown did not warn these employees not to engage in similar conduct on this occasion, but merely told them "there was nothing he could do" to stop the union activities. 17 Hoover's earnings record from January 4 to June 27, 1944, shows that prior to February 29, 1944, she earned substantially over $20 per week on a 40-hour per week bays, whereas after Febru- ary 29, her earnings frequently fell below the minimum wages of $16 per week on a 40-hour basis 11 Hoover testified that it was her understanding at the time that she would be assigned to a faster machine that afternoon Mastin testified that the change was to be made at the beginning of the following work week Neither Brown nor Hall testified respecting this incident. No change was made in Hoover's assignment on that day. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD early on the morning of June 6, because the anti-union employees were go- ing to lock out the union members.' On the morning of June 6, a large number of the anti-union faction ar- rived at the plant before the usual hour to report for work. According to Rollans' testimony, they decided to prevent the union adherents from work- -ing. This group, including Taylor, gathered in the lobby at the employees' entrance of the plant and on the stairway leading to the second floor of the building, where the plant sewing room was located. All employees who reported for work were asked at the door by the anti -union group whether they were in favor of the Union or were anti-union. Those who failed to reply that they were anti-union were told that they could not go in to work. As a result of these tactics, employees Eudie Hoover,20 Mary Brantly, Min- nie Poorbaugh, Lena McCormack, Dorothy Kuykendall, Alma Foster, Fan- nie Bickford, Carrier Parker, and Cora Maddox, all of whom had signed union cards in December 1943 or January 1944, were stopped from enter- ing the plant." After they were denied admittance, Hoover, Poorbaugh, McCormack, Kuykendall, Parker, and Maddox gathered on the sidewalk near the plant entrance, while Brantly; Foster, and Bickford left to return to their homes. The six union employees remained near the entrance until President Brown arrived on the scene, and then inquired of Brown as to whether they could go in the plant. Brown went to the door, looked in, and then walked over to the six union members standing on the outside. He told them to return home, stating that he would investigate the matter and that he would pay them for that day.22 19 Taylor admitted that on this occasion she and Betty Duncan engaged in an argument concern- ing the Union and that, following it, Duncan struck her. Taylor did not deny that she made the statement attributed to her by Duncan , Taylor testified that she arrived at the plant on the morning of the lock-out on June 6, early enough to participate in the lock -out of union adherents which took place on that morning , as hereinafter set forth C. E Rowland , who was also a guest at Taylor's home on the night of June 5, testified that Taylor made no statement similar to the one above testi. fied to by Duncan, but on cross -examination Rowland admitted that on that occasion he and Taylor's former husband were primarily engaged in a mutual conversation while the women present were talking about other subjects . From a consideration of the above testimony concerning the incident at Taylor's home on the night of June 5 , together with all of the other evidence and from his observa- tion of the witnesses , the Trial Examiner concluded that Duncan 's version is the more credible. We are of the same opinion , and, accordingly, find that Taylor made the statement attributed to her by Duncan. 20 Rollans, on this morning, hung black crepe on Hoover's machine and also placed a white flower on the crepe zi In addition , employee Leona Bryant testified, without contradiction, that she was admitted to the plant on the morning of June 6, after stating at the door that she was "non -union," although she had joined the Union in January or February . Later that day, Bryant saw another employee present in the plant whom Bryant had told that she had joined the Union. Bryant decided to leave because Floorlady Taylor had previously told Bryant that she would be put out of the plant if the anti. union group learned that she was "Union ." When Bryant left the plant , Mary Wright, an anti-union guard at the door, told Bryant "if you leave we will classify you as Union." Bryant replied, "I do not care how you classify me, I am going home." 22 The respondent thereafter sent Hoover , Poorbaugh, McCormack, Kuykendall , Parker, and Maddox weekly pay checks for the weeks ending June 13, 20 , and 27, 1944. The checks were drawn for the estimated weekly wages each of them would have received had they been permitted to con- tinue working. BROAN'N GAR\4ENT i\IANUFACTURIN(. CO?vIPANV 867 Following the initial exclusion of the union members on the morning of June 6, and after the employees remaining in the plant had taken their places at their machines and work was resumed in the plant , the anti-union faction posted certain employees at the plant entrance to serve as lookouts against any attempt of the union members to gain entrance . Once or twice (luring that day or the next morning , when these "guards" saw union mem- bers coming to the plant door they shouted a warning to the anti-union employees at work in the plant, all of whom then left their machines and gathered on the stairway leading to the plant entrance During the first morning of the lock-out, four such guards were maintained by the anti- union faction, various of the anti-union girls rotating to serve in that ca- pacity , they were employees whom Rollans selected on the basis of her opinion as to those who could most easily be spared from working the time that they were acting as such guards . During the afternoon of June 6 and the morning of June 7, two such guards were maintained. Shortly after the noon hour on June 7, Superintendent Mastro sent the employees who were then acting as guards back to work at their machines. Mastin admitted at the hearing that he knew that some employees were absent from their machines in order to act as guards at the door on June 6, and that, although recognizing his responsibility to see that they were at their machines, he made no effort to see who was missing or to get them back to work. On the morning of June 7, the lock-out of union members continued. The nine employees named above , who were prevented from going into the plant to work on June 6, were again denied admittance by the anti-union fac- tion. Bryant, who left the plant the day before under the circumstances above mentioned, was also told that she could not come in to work. Viola Lucas, another union member, had not reported for work on June 6. She went to the plant on the morning of June 7 to report for work with several of those who had been locked out on the clay before. Rollans looked over the group and said, "You can't go to work here, girls", whereupon Lucas left u ith the other union members \Telma Dare had been employed in the plant since July 1943 , and joined the Union on some date prior to December 25, 1943. She had requested, and was granted, a leave of absence for the week beginning June 5, 1944. When she returned to report for work on the morning of June 12, 1944, her time card was missing from the card rack While Dare was trying to locate Superintendent ^'1astin, Rollans walked up to her and asked Dare whether she belonged to the Union When Dare replied that she did, Rollans told Dare that she could not work in the plant any longer According to Dare's uncontradicted testimony , Dare then asked Rollans whether Brown 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or the anti-union girls were running the plant, Rollans replied that appar- entll- the girls were running it, and Dare left the plant 21 D The formation of the "Coinnllttee." On or about June 8, according to Rollans' uncontradicted testimony, she consulted attorney Wright-' to advise her concerning the organization of the anti-union employees in the plant. Wright drafted petition forms for Rollans During the noon lunch hour in the plant on June 8, Rollans called a meeting of the employees. She testified that'at the meeting she read the petition, proposed that a committee be elected to represent the anti-union employees, that she was chosen as chairman, and employees Greer and 1-larvey were elected to serve with her on the committee, hereinafter called the "Committee."" The petition was circulated that afternoon during work- ing hours among the employees working on both the commercial and gov- ernment lines. Floorladies Taylor and Clark signed the petition, as did sub- stantially, all the production employees in the plant, that clay. On the same day, Blanche M. Lacey, a representative of the Union, sent a letter to Presi- dent Brown stating that certain union members had been locked out of the plant on June 6." In a letter, dated June 14, Brown denied in substance that the respondent was responsible for the actions of the anti-union employees who had prevented the union employees from working. He further stated that, unless the management could induce the anti-union employees to work with the locked out union employees within a reasonable time, the vi The record does not disclose that either Dare or the Union on her behalf made any formal request for Dare's reinstatement by the respondent following her eviction as above set forth How- ever, in view of the respondent's disclaimer of responsibility for the actions of the anti-union em- ployees, as hereinafter set forth in President Brown's letter to the Union on June 14, together with the respondent's failure to reinstate any of the union employees who were locked out on June 6 and 7, and the subsequent removal of all the locked out employees from the pay roll, we find that any request for Dare's reinstatement would have been futile 24 The record does not otherwise disclose the identity of the person thus referred to. We assume, however, that Rollans was referring to Edward L Wright who, although not present at the hearing, has, since the hearing, participated in this proceeding as attorney for the "Committee." 25 The petitions bore the following heading. To Brown Garment Manufacturing Company We, the undersigned, a majority of the regular employees of Brown Garment Manufacturing Company in the plant at 603 West Markham Street, Little Rock, Arkansas, have selected and do hereby designate Mrs Edith Rollans, Mrs Jessie Greer and Iva Harvey as the exclusive representatives of the employees of the Little Rock plant of Brown Garment Manufacturing Company for the purpose of collective bargaining in iespect to rates of pay, wages, hours of employment and all other conditions of employment with the said Brown Garment Manufac- turing Company ^ According to the evidence, the pioceedings at the meeting and&the circulation of this petition wet e the only steps taken toward forming an organization The so-called "Committee," so far as appears, has no name, constitution , bylaws, membership cards, or dues requirements. 2 The letter named Leona Bryant, Viola Lucas, Eudie Hoover, Dorothy Kuykendall, Cora Maddox, Lena McCoimack, Minnie Poorbaugh, Mary Brantly, Fannie Bickford, Carrie Parker, Alina Foster, and Ethel Mullins Mullins' case is discussed below in Section III, E. As heremabove set forth, the exclusion of Velma Dare by the anti-union faction occurred on June 12, whereas the Union's letter was written on June 8, at which time Dare was, and had been for several days, on leave of absence from the plant. For this reason, apparently, Dare's name does not appear in the letter among the list of those locked out BROWN GARMENT MANUFACTURING COMPANY 869 respondent would drop the latter from the pay roll. On June 21 , the "Committee" by letter to the respondent , in substance, stated that employees in the plant had ordered certain other employees-" to stay away from the plant, and that , if the union employees named were reemployed , the anti-union employees , represented by the " Committee, would terminate their employment ." The respondent made no written reply to the above letter, but President Brown testified that, after receiving it, he decided to drop all the locked out employees from the respondent's pay roll.' Brown admitted in his testimony that he had never notified any of the union employees immediately concerned nor Union Representative Lacey that the employees had been discharged or removed from the pay roll. According to Brown , the "Committee ," headed by Rollans , has continued in existence ; the evidence indicates that it has carried on the usual func- tions of a labor organization " E. The discharge of Ethel Mullins Mullins was employed by the respondent from October 1937 until May 1942, when she quit her employment because of illness. In 1941, when the Union attempted to organize the plant and certain union adherents were locked out, Mullins was associated with the anti-union faction. About the middle of May 1944, Mullins applied to Superintendent Mas- tin for reemployment. She was hired and went to work on the government line under the supervision of Floorlady Clark. According to Mullins' testi- mony, she informed Mastin, at the time she was rehired, that she was under a doctor's care, and was suing for a divorce, and that occasionally she would require time off to see her doctor, or her attorney, and Mastin agreed that that was all right if she would tell him the day before each time she was go- ing to be off so that lie could get some one in her place. She further testified that thereafter she always notified him when she was going to be absent. Mastin denied having reached such an understanding with Mullins when he rehired her." However, as m the case of Mullins' testimony, hereinafter discussed. as to her conversation with Masten at the time she was .dis- charged, we credit Mullins' testimony and find that, at the time of rehire, 2s Leona Bryant, Viola Lucas, Eudie Hoover, Dorothy Kuykendall, Cora Maddox, Lena Mc- Cormack, Minnie Poorbaugh, Mary Brantly, Fannie Bickford, Carrie Parker, Alma Foster, and Ethel Mullins It will he noted that the names in this list correspond to those in the Union's letter of June 8 See footnote 27, supra Velma Dare's name is not on this list. 29 Rollans testified that the "Committee" attached to its letter a photostatic copy of the petition, bearing the signatures of the anti-union employees , which she had circulated in the plant on June 8 80 It is noted that 6 of the 12 employees were paid until June 27, 1944 See footnote 22, supra. 31 Brown testified that the "Committee" presented him with a petition asking for vacations with pay for all employees on the pay roll over 6 months Pursuant to the request, the respondent sub- mitted the matter to the National War Labor Board A substantial vacation award, which is, in effect, a bonus for extra wages in lieu of taking time off from work, has been approved by the National War Labor Board and will be granted by the respondent to its employees 12 We so interpret Mastm's testunony, w.luck was as follows. "So help me God, I don't remember any such conversation." 870 DECISIONS OL NATIONAL LABOR RELATIONS BOARD i\'lastin knew of and considered the probability that Mullins would not be regular in her attendance at work and that thereafter she gave Mastin ad- vance notice of her absences In the latter part of May, Mullins signed a union card. On June 5, accord- ing to Mullins' uncontradicted testimony, Rollans, the leader of the anti- union faction in the plant, asked Mullins during working hours to partici- pate again in a lock-out of union adherents, similar to that which had taken place in 1941 ; and Mullins made no reply to Rollans. On the morning of June 6, when Mullins reported for work, many anti-union employees were gathered in the plant entrance. They questioned Mullins respecting her union or non-union affiliation When Mullins replied that she was non- union, she was permitted to go in to work. Mullins, according to her uncon- tradicted testimony, worked on Tuesday, June 6, and on Wednesday, June 7, but did not report for work on Thursday, June 8 On Friday, June 9, according to Mullins' undenied testimony, which we credit, as did the Trial Examiner, Mullins reported for work, but did not start working because, shortly after her arrival, Rollans told Mullins that she could not continue working unless she signed the "Committee's" June 8 petition, and gave Mullins until noon of that day to make up her mind Shortly after this incident, Mullins left the plant. Following the receipt of Mastin's letter on Saturday, June 10, Mullins reported for work on Monday, June 12. She testified that the following conversations occurred between her, Mastro, and Brown on that morning When Mullins first saw Mastin, she asked him if he wanted her to sign the petition of the "Committee" and told him that she would not sign it for an ordinary employee, but, if Brown was trying to get the girls to sign it, that was another matter Mastin started to walk away, whereupon Mullins_ asked him if she should go to work and he replied, "I want you to wait and see Mr. Brown." When Brown appeared, Mullins told Brown that she and Mastin then walked into a private office, and shortly thereafter returned with Mullins' cousin, Doris Oliver, an office employee who had been selected by Brown to serve as a witness to any conversation between management representatives and Mullins." According to Mullins, Mastin then told Mul- lins that her absence from work was unjustifiable in view of a prior promise by Mullins to Rollans that Mullins would sign the "Committee" petition by noon on June 10, and continue on her job Mullins then told Mastin that as It will be noted that this was the day on which the "Committee" was organized in the plant On the same day, Superintendent Mastin, by registered mail, sent Mullins a letter which , in sub. stance, stated that the respondent would not tolerate the further absence of Mullins, and also stated that her machine would be assigned to another operator if she failed to report for duty at once Since Mullins was absent from her home on Friday when the post office carrier called to deliver the letter, the letter was returned to the post office and Mullins called for it on Saturday, June 10. As hereinafter mentioned , Mastin testified that it was his intention, by this letter, to induce Mullins to return and to put her back to work. She did, in fact, report back for work , but was discharged, as related hereinafter , on Monday, June 12, the first work- day following her receipt of the letter. 84 Ohyti wat not called as a witness at the ,hearing BROWN GARMENT it1ANUFACTURING CU-9PANV 871 she was ill and not able to work every day, whereupon Brown got angry and walked into another office and left her talking with Mastin. A few min- utes later, Brown looked in on them through a small window opening into the office. Brown told her to leave the plant in 10 minutes and then asked her, "Are you going to get out, or shall I call the police and put you out?" Mullins replied that she was going to leave, and then told Brown that she merely wanted to let him and Mastin know that some one had mistakenly informed them that she had promised to sign the "Committee" petition. Mastin gave the following testimony in respect to Mullins' discharge. On direct examination, he testified that Mullins "continuously" laid off from work and that he complained to Brown about it and that Brown discharged her. Mastin denied that he said anything to her respecting her refusal to sign the "Committee" petition. On cross-examination, he testified that, when he sent Mullins the letter on June 8, requesting her to report for work, he wanted her back and thought that he would put her to work when she came in on June 12. He further stated that he did put her to work when she came to the plant in answer to the letter, but thereafter changed his testimony and said that he could not recall whether or not she started to work on June 12 and that he had no present recollection as to whether or not lie had any conversation with her on that day Brown, in substance, gave the following testimony respecting the incident He testi- fied that Mullins came to him on the Monday morning "following the trou- ble at the plant" and told him that Mastin would not let her work He then asked Mastin what the trouble was. Mastin told him that Mullins had not x%orked regularly for a week and that another employee had been assigned to her machine. Brown testified that he then sent for Mullins' employment record and decided, after checking it. that Mastin "was justified in fiiring Mrs Mullins."' During the 5 weekly pay periods following her reemployment in May 1944, lMlulllns worked 15%, 45, 45, 27/, and 8/ hours, respectively. In his testimony Brown quoted these figures, saying "The record speaks for itself, 1 think." However, neither Mullins' employment record, quoted by Mastin and introduced into evidence, nor other evidence adduced at the hearing, discloses the exact time, with reference to the work week, that Mul- lins' reemployment commenced ; hence it does not appear that 15/ hours, the figure first above mentioned, represents less than full time worked. The second and third weeks of 45 hours each represents full time plus 5 hours' overtime, the work week being 40 hours While the figure of 27/ hours in 15 Brown denied that he had any knowledge respecting Mullins Orion activities at the time of her discharge , although he had previously received Union Representative Lacey's letter, sent by her to Brown on June 8, listing Mullins as one of the union adherents who had been locked out on June 6 while this statcnient in the letter is inaceurite. it cleaily constitutes notice to Brown that -Mullins was a union adherent and we find that Brown had knowledge of Mullins' association with the Union before June 12. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the fourth week reflects absenteeism during that work period ,' it is the only week during which less than full time was worked which does not appear to he susceptible of reasonable explanation on the basis of the record now before us. The fifth and last week , ending on June 13, 1944, had not yet expired at the time of Mullins ' discharge on June 12, and yet in his testi- mony President Brown included it in his recital of the figures which he said he had examined and which justified Mullins ' discharge . Moreover, as to the figure of 8/ hours worked in the last week , her absence, or the greater part thereof , was due , as hereinabove set forth, to the refusal of other employees to permit her to work unless she signed the "Committee" peti- tion . In view of the foregoing , as well as the other reasons herein set forth, we find that Mullins' work attendance record was not the cause of her discharge , as contended by the respondent. Obviously the versions given by Mullins , Brown , and Mastin , concerning the circumstances surrounding Mullins' discharge, are widely contradictory. In view of Mastin's admissions during his cross -examination that he had no present recollection respecting any conversation with Mullins on that morning and Brown 's failure to give any testimony respecting Mullins' recital of the conversation relating to the petition incident, we find, as did the Trial Examiner , who based his conclusion in part upon his observation of the witnesses , that Mullins' version of the incident is credible, and we accept it as true. In view of the foregoing , we find that Brown discharged Mullins on June 12, 1944, because of her activities and membership in the Union and her refusal to sign the "Committee" petition , thereby discourag- ing membership in the Union and encouraging membership in or adher- ence to the "Committee ," and interfering with , restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Concluding findings as to the lock-out and the "Committee" The remaining principal issues presented by the foregoing facts are whether the respondent discriminated in regard to the hire or tenure of employment of the 12 employees,3' all members of the Union, who were excluded from or locked out of, the plant on June 6, 7, and 12, 1944, and thereafter, and whether the respondent dominated and interfered with the formation and administration of the "Committee" and contributed support and assistance to it. On June 6, after the first nine union members were prevented from going into the plant to work by the anti-union employees, Brown told six of them 38 As we have herembefore found, however , the respondejit indicated that it had no objection when informed by Mullins , at the time that she was rehired, that she might occasionally be absent from work. 37 Exclusive of Mullins. BROWN GARMENT MANUFACTURING COMPANY 873 to go home and that he would investigate the matter. From that time on, the respondent refrained from taking any effective steps to return the union employees to work or to prevent further exclusion of union members. Bry- ant and Lucas, two other union members, were locked out on the following morning. When the anti-union "Committee" was formed during the lunch hour on June 8 in the sewing room of the plant and Floorlady Taylor par- ticipated in the discussion there leading to the election of the "Committee," the respondent made no effort to stop these activities, nor was any objection interposed by the respondent to the circulation of the "Committee" peti- tion in the plant during working hours on the same afternoon. It is thus ap- parent that the respondent's officials condoned and concurred 'in these ac- tivities.' Further support is given to this conclusion by Brown's discharge of Mullins for refusing to sign the "Committee" petition on June 12. Also, by June 12, nothing had been done by the respondent to stop the exclusion of union employees, for Rollans on behalf of the "Committee," ordered Dare, another union member, out of the plant on that day. It is significant that, on June 14, in Brown's reply to the June 8 letter of the Union request- ing the respondent to reinstate the locked out employees, after denying that the respondent was responsible for their exclusion, he stated that, un- less he could "induce" the anti-union employees to work with the union girls, the union employees would be dropped from the pay roll.' Further- more, shortly after the receipt of the "Committee" letter, dated June 21, threatening a walk-out if the respondent reinstated the excluded union em- ployees, the respondent "decided" to drop the locked out employees from the pay roll. Upon consideration of all the above, we conclude that, by per- nutting the "Committee" to hold its organizational meeting in the plant and to circulate its petition in the plant during working hours, by the active participation of Floorlady Taylor in the selection of the "Committee," by condoning and concurring in the lock-out of union employees by the "Com- mittee," and by discharging Mullins for her refusal to affiliate with the "Committee," the respondent rendered assistance and support to the "Com- mittee" and discharged the 12 locked out employees because of their union activities. By such conduct the respondent dominated and interfered with the formation and administration of the "Committee" and contributed sup- port to that labor organization, in violation of Section 8 (2) of the Act, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8 (1) of the Act. The respondent, in effect, contends that the "Committee" is the majority -A See , for example, Matte) of Reliance Mannfactannp Company, et al , 28 N 1. R B 1051, 1083- 1088, enf'd with mod in Reliance Mfg Co v N L R B , 125 F (2d) 311 (C C A 7) " Hoover , Poorbaugh, McCormack, Kuykendall, Parker, and Maddox, the six who talked with Brown on the morning of June 6, were paid up until June 27. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of its employees, that the respondent was obligated to bar- gain with it respecting the lock-out of the employees, and that, as a result of such bargaining, including threats to quit on the part of "Committee" ad- herents, the respondent was forced to discharge the locked out employees. A realistic consideration of the employer's obligations under the Act fails to support this contention. The respondent owed the affirmative duty of reinstating the excluded employees." Even where no other unfair labor practices are committeed, an employer who takes no action to prevent the exclusion of his employees from work by members of a rival organization is himself responsible for the exclusions, such exclusions being tantamount to discharge." Here the i espondent not only failed, after the evictions, to reinstate the evicted em- ployees, but, furthermore, encouraged and supported its employees of the anti-union faction in conducting the lock-out, by the failure or President Brown, in answer to the question of Taylor and others of the anti-union group as to what could be done to keep the Union out, to warn these em- ployees not to engage in a repetition of the 1941 lockout, by the foreknowl- edge and tacit approval by Forelady Taylor of the lock-out and by her presence among the employees conducting the lock-out at the plant entrance on the morning of June 6, by the failure of Superintendent Mastin on June 6 and the morning of June 7 to order back to their machines those employees whom the anti-union faction had posted as guards at the plant entrance, and by the discharge of Mullins for refusal to sign the "Committee" petition. We find that the 12 union members named above were locked out be- cause of their activity and membership in the Union and that, by taking no action to prevent the lock-outs, and by giving encouragement and sup- port to the anti-union faction, the respondent discriminatorily discharged the locked out employees. Even though induced by the "Committee," such discrimination was unlawful because it was not required by any valid con- tract between the respondent and the "Committee," within the meaning of the proviso to Section 8 (3) of the Act" Accordingly, we find that, by discharging Eudie Hoover, Minnie Poorbaugh, Lena McCormack, Doro- 40 Matter of Isthmian Steamship Company, 22 N. L R B 689, enf'd as mod N. L R B. v Isth- mian Steamship Co., 126 F. (2d) 598 (C C A 2) ; N L R B v Hudson Motor Car Co, 128 F. (2d) 528 (C C A 6), enf'g 34 N. L. R. B. 815, N L R B v Goodyear Tire and Rubber Company of Alabama, 129 F. (2d) 661 (C. C. A. 5); N. L R B v Taylor-Colqustt Co, 140 F. (2d) 92 (C. C. A 4), enf'g 47 N. L R. B. 225; N. L. R. B v. J. G Boswell Co, 136 F. (2d) 585 (C C A 9), enf'g 35 N L R B. 968, Matter of Greer Steel Company, 38 N L R B 65 Cf N L R B v. Weirton Steel Co, 135 F (2d) 494 (C C A. 3), enf'g as mod 32 N. L. R B 1145 41 See preceding footnote Also see, Medo Photo Supply Corporation v N L R B , 321 U. S. 678, 689, aff'g 135 F (2d) 279 (C. C. A 2). in which the Supreme Court stated that the employer "was not relieved from his obligation (under the Act] because the employees asked that they be disregarded." 4= See N. L R B v Hudson Motor Cai Co, 128 F. ( 2d) 528 (C C A. 6), enf'g 34 N L R B 815, Wilson & Co v N L R B , 123 F (2d) 411, 417, (C C A 8), enf'g 26 N L R 13 297 BRO\VN GkRNENT MANUFACTURING COMPANY 875 thy Kuykendall, Carrie Parker, Cora Maddox," Mary Brantly,. Alma Fos- ter, and Fannie Bickford on June 6, Leona Bryant and Viola Lucas on June 7, and Velma Dare and Ethel Mullins on June 12, and by failing or refus- ing to reinstate them, the respondent discriminated against them in regard to their hire or tenure of employment, thereby discouraging membership in the Union, encouraging membership in the "Committee," and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent de- scribed in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead and have led to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE REMEDY Having found that the respondent has engaged in certain 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. We have found that the respondent has dominated and interfered with the formation and administration of the "Committee" and has contributed support to it. The respondent's acts render the "Committee" incapable of serving the respondent's employees as a genuine bargaining representative and render its continued recognition by the respondent an obstacle to collec- tive bargaining through freely chosen representatives. We shall accord- ingly order that the respondent withdraw all recognition from the "Com- mittee" and disestablish it as a representative of the respondent's employees for the purposes of collective bargaining. We have also found that the respondent discriminatorily discharged and subsequently refused to reinstate Eudie Hoover, Mary Brantly, Minnie 1-'oorbaugh, Lena McCormack, Dorothy Kuykendall, Alma Foster, Fannie Bickford, Carrie Parker, Cora Maddox, Leona Bryant. Viola Lucas, Velma Dare, and Ethel Mullins, because of their union membership and activity. We. will therefore order that the respondent offer to each of the above- 48 The foregoing six employees as above set forth , were among the nine who were locked out on the morning of June 6, but were paid estimated weekly wages by the respondent until June 27, 1944 In view of this circumstance , the Trial Examiner has found that they were discharged on the latter date We do not agree. We find that they were discharged on the morning of June 6, at which time they were first refused admittance to the plant, by virtue of the respondent 's encouragement of and concurrence in the lock-out on that date As hereinafter set forth, however, in connection with the remedy , in awarding back pay to the discriminatorily discharged employees , we shall direct that such sums already paid by the respondent to the discharged employees on account of wages which they otherwise would have received shall be deducted from the amount awarded Matter of 1 G Boswell Company, 35 N L R 13 968, 988, 989, 1031, enf'd 136 F (2d) 585 (C C A 9) 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD named employees immediate and full reinstatement to her former or a sub- stantially equivalent position without prejudice to her seniority and other rights and privileges, and to make her whole for any loss of pay that she may have suffered by reason of the respondent's discrimination against her by payment to her of a sum of money equal to the amount which she nor- mally would have earned as wages from the date of the discrimination to the date of the offer of reinstatement, less any payments which the respondent may have heretofore made to her on account of such wages, and less her net earnings" during that period. Upon the basis of the foregoing findings of fact and upon the entire rec- - ord in the case, the Board makes the following: CONCLUSIONS OF LAW 1. International Ladies' Garment Workers' Union, Local 386, affiliated with the American Federation of Labor, and the so-called "Committee" are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and administra- tion of, and contributing support to, the "Committee," the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Eudie Hoover, Mary Brantly, Minnie Poorbaugh, Lena McCormack, Doro- thy Kuykendall, Alina Foster, Fannie Bickford, Carrie Parker, Coi a Mad- dox, Leona Bryant, Viola Lucas, Velma Dare, and Ethel Mullins, thereby discouraging membership in International Ladies' Garment Workers' Union, Local 386, affiliated with the American Federation of Labor, and encouraging membership in or adherence to the "Committee," the respond- ent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the mean- ing of Section 8 (1) of the Act. 5 The aforesaid unfair labor practices are unfair labor practices affect- ing commerce, within the meaning of Section 2 (6) and (7) of the Act. 44 By "net earnings " is meant earnings less expenses , such as for transportation , room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the re- spondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America , Lumber and Sawmill Workers Union, Local 2590, 8 N L R B 440 Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N L R B, 311 U. S 7 BROWN GARMENT MANUFACTURING COMPANY 877 ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the Na- tional Labor Relations Board hereby orders that the respondent. Brown Garment Manufacturing Company, Little Rock, Arkansas, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of the "Commit- tee," and with the formation or administration of any other labor organiza- tion of its employees, and from contributing support to the "Committee,'' or to any other labor organization of its employees ; (b) Recognizing or in any manner dealing with the "Committee," as the representative of any of its employees, for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment ; (c) Discouraging membership in International Ladies' Garment Work- ers' Union, Local 386, affiliated with the American Federation of Labor, or any other labor organization, or encouraging membership in any labor organization, by discharging or refusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of their employment: (d) 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, Local 386, affiliated with the American Federation of Labor, 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, as guaranteed in Section 7 of the Act. 2 Take the following affirmative action, which the Board finds will effec- tuate the policies of the Act : (a) Withdraw and withhold all recognition from the "Committee" as the representative of any of its employees for the purpose of dealing-with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish the "Committee" as such representative : (b) Offer to Eudie Hoover, Mary Brantly, Minnie Poorhaugh, Lena McCormack, Dorothy Kuykendall, Alma Foster, Fannie Bickford, Carrie Parker, Cora Maddox, Leona Bryant, Viola Lucas, Velma Dare, and Ethel Mullins immediate and full reinstatment to their former or substan- hally equivalent positions without prejudice to their seniority and other rights and privileges, 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Make whole Eudie Hoover, Mary Brantly, Minnie Poorbaugh, Lena McCormack, Dorothy Kuykendall, Alma Foster, Fannie Bickford, Carrie Parker, Cora Maddox, Lena Bryant, Viola Lucas, Velma Dare, and Ethel Mullins for any loss of pay that they have suffered by reason of the discrimination against them, by payment to each of them, respectively of a sum of money equal to the amount which she normally would have re- ceived as wages during the period from the date of the respondent's dis- crimination against her to the date of such offer of reinstatment, less any payments which the respondent may have heretofore made to her on account of such wages, and less her net earnings during said period, (d) Post at its plant at Little Rock, Arkansas, copies of the notice, at- tached hereto, marked "Appendix A." 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 im- mediately upon receipt thereof, and maintained by it for sixty (60) con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable-steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; (e) Notify the Regional Director for the Fifteenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. JOHN M. HOUSTON took no part in the consideration of the above Decision and Order. 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 Rela- tions Act, we hereby notify our employees that We hereby disestablish the "Committee" as the representative of any of our employees for the purpose of dealing with us concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the, above purposes. We will not dominate or interfere with the formation or administra- tion of any labor organization or contribute financial or other support to it We will offer to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously en- BROW' N GARMENT ld ANUL ACTURI N G COMP_A N V 879 joyed, and make them whole for any loss of pay suffered as a result of the discrimination. Eudie Hoover Carrie Parker Mary Brantly Cora Maddox Minnie Poorbaugh Leona Bryant Lena McCormack Viola Lucas Dorothy Kuykendall Velma Dare Alma Foster Ethel Mullins Fannie Bickford 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, Local 386, affiliated with the American Federation of Labor, 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 a.d 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 em- pioynient or any term or condition of employment against any employee becau• e of membership in or activity on behalf of any such labor organi- zation BROWN GARMENT NNIANUFACTURING COMPANY (Emplover) (Employer) Dated By (Representative) (Title) NOTE: Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces This notice must remain posted for 60 clays from the date hereof, and must not be altered, defaced, or covered by any other material.