Dolores, Inc.

550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer's Crossett, Arkansas, plant, excluding therefrom guards and supervisors : 1. All instrumentmen. 2. All electricians, electrician motor oilers, and electricians' helpers. 3. All millwrights, including pulp and paper operating millwrights; paper and pulp mill oilers, and millwrights' helpers. 4. All welders and welders' helpers. 5. All painters and painters' helpers. 6. All pipefitters and pipefitters' helpers. 7. All carpenters and carpenters' helpers. 8. All blacksmiths and blacksmiths' helpers. 9. All machinists and machinists' helpers. If a majority of the employees in any of the voting groups described in paragraph numbered 4 indicate, by voting for the Petitioner, their desire to be represented in a separate unit, the Board finds such unit to be appropriate, and the Regional Director conducting the elections directed herein is instructed to issue a certification of representatives to the Petitioner for each such unit. If the majority of the employees in any of the voting groups vote for the Intervenor, they will be taken to have indicated their desire to continue to be included in the existing production and maintenance unit, and the Regional Director shall issue a certificate of results of elections to that effect. [Text of Direction of Elections omitted from publication in this volume.] DOLORES, INC. and TEXTILE WORKERS OF AMERICA, CIO and UNITED PAPERWORKERS OF AMERICA , CIO and DOLORES ASSOCIATED EM- PLOYEES. Case No. 32-CA-1641. March 12, 1952 Decision and Order On August 8, 1951, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and -take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and -supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [Chairman Herzog and Members Houston and Murdock]. 98 NLRB No. 94. DOLORES, INC. 551 The Board has reviewed the rulings of the Trial Examiner at the 'hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case and adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications. 1. We agree with the Trial Examiner 's finding that the Respondent violated Section 8 (a) (2) of the Act by dominating and interfering with the formation of the Association and by contributing support to it, as more fully detailed in the Intermediate Report. In reaching this conclusion, the Trial Examiner also found that the Respondent illegally supported the Association in part by checking off dues and initiation fees on its behalf. We construe his conclusion in this re- spect, which we adopt, as holding that the checkoff formed part of -the illegal assistance regardless of whether or not prior written au- thorizations from the employees had been obtained.' 2. In its exceptions the Respondent strongly reasserts its contention that the record does not contain sufficient evidence of anti-union moti- vation in the discharges that the Trial Examiner found to have been illegally discriminatory . As set forth in the Intermediate Report, -the first three employees, Ungaro, Kenyon, and Barnette, were dis- -charged without prior warning on November 20, 1950, less than 1 week after the inception of open organizational activities. Three -days earlier, on a Friday, plant superintendent Johnston made a speech to the employees , saying, among other things, that he would not have a union in the plant.' Later that day he stated that he intended to discharge five employees, including Ungaro and Derryberry. Two .supervisors disagreed with him as to the identity of the prounion -people, and one of them added that Barnette was a union leader. In order not "to make a mistake," President Powell decided to consider -the matter over the week end. If the record contained nothing more than the foregoing , it could hardly be said that the record lacked evidence of union animus in -the sudden discharge of Ungaro , Kenyon, and Barnette the following Monday. After the discharges , Powell accused Ungaro of being the union "ringleader." Kenyon was ostensibly discharged for talking -with Barnette. It is true that the record does not reveal the extent of Barnette's participation in union activities , but the Respondent -clearly believed her to be among the union adherents 3 1 Jack Smith Beverages, Inc., 94 NLRB 1401. 2 The Trial Examiner recommended dismissal of a complaint allegation charging that -this speech constituted an unfair labor practice . Because no exception was filed to this -recommendation , it is hereby adopted. 'Salant & Salant, Incorporated, 92 NLRB 343; Boreva Sportswear, Inc., 73 NLRB =1048, 1065. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In these circumstances, and in view of many other unfair labor practices committed by Respondent over the 4-month period of the Union's attempt to organize the employees, and the insubstantial nature of the asserted reasons for the discharges, there is no doubt but that Johnston was acting only to implement the Respondent's fixed intention to rid the plant of the Union. The direct character of the affirmative evidence of discriminatory motivation in the discharges appears again in the Respondent's re- fusal, 4 months later, to recall four other employees, three of whom had been present at the Board hearing in the Union's representation proceeding. When these employees, Gorman, Childs, Lovett, and Derryberry, attempted to return to work following their discrimi- natory layoff, Johnston conditioned their return upon acceptance of the Association contract. Because they refused to sign this prepared document, which also acknowledged that there had been no collusion between the Respondent and the Association, they were denied their jobs. This fact, apart from the lack of sub- stance in the alleged slackening of work as the reason for these dis- charges, shows clearly that the Respondent was not, as it now asserts, concerned with business requirements, but only with its employees' union sympathies, whether in favor of the Union or against the Association. During the period between these two groups of discriminatory dis- charges, Respondent's officials engaged in a number of illegal acts, many of which reveal a deliberate, planned campaign to defeat the employees' attempt to be represented by a labor organization of their own choosing. Thus, among other things, Respondent illegally inter- rogated employees concerning their union activities, threatened one to compel his attendance at an Association meeting, kept the union meetings under surveillance, and promised benefits in return for spying upon the union activities of other employees. And, finally, to assure the complete elimination of the Union as the representative of its employees, the Respondent foisted upon the employees a com- pany-dominated union. It also discharged, for asserted reasons that appear unpersuasive on the record as a whole, four other employees, Rogers, Buse, Taylor, and Seratt, each of whom had been openly active in the Union's organizational activities 4 In view of the fore- going facts, and upon consideration of the entire record, we are satis- 4 As the Trial Examiner found, the fact that Taylor may have talked while working could not have been the true reason for her discharge , because for some time the Respondent had permitted , and was continuing to permit, many employees to discuss and solicit member- ship in the Association during working hours. We also reject the Respondent 's conten- tion that Taylor, who had been 'employed 5 gears , was released because of a change in operation from a single needle to a double needle machine, as Taylor had, insofar as the record shows, more experience on double needle machines than any operator in the plant, and more seniority with Respondent than many employees who were not discharged. DOLORES, INC. 553 fled, as was the Trial Examiner, that the complaint allegations of discriminatory discharges of these employees have been sustained. Accordingly, we find that by discharging or refusing to reemploy Kenyon, Ungaro, Barnette, Rogers, Buse, Gorman, Childs, Lovett, Derryberry, Seratt, and Taylor, the Respondent violated Section 8 (a) (3) of the Act. We do not agree, however, with the Trial Examiner's conclusion that the discharges of Derryberry, Gorman, Childs, and Taylor also violated Section 8 (a) (4) of the Act. Although the participation by these employees in the representation hearing may have been one of the factors motivating the Respondent when it discharged them, and is further evidence that Respondent knew of their union sym- pathies, we do not believe that the evidence on the record as a whole sustains the Trial Examiner's finding that they were discharged because they testified at the representation hearing. Accordingly, we shall dismiss the complaint insofar as it alleges violations of Section 8 (a) (4) of the Act. 4. We agree with the Trial Examiner's conclusion that the record does not support the complaint's allegation as to employee Aline Hall. Like the Trial Examiner, we are not without some doubts in so finding, for the Respondent's openly expressed antipathy toward the Union and its desire to rid the plant of union adherents make suspect the discharge of any union sympathizer during that period. However, the Respondent's records show that during her last short period of employment Hall, contrary to her own testimony, was absent from work on at least four occasions, and failed to report her absence at least once. We also note that her previous employment with the Respond- ent had been irregular. In these circumstances we cannot say that the Respondent's dissatisfaction with her attendance record was unreasonable. Considering all the facts respecting Hall, therefore, we find that the General Counsel has not sustained the burden of proving that she was discriminatorily discharged, and we shall dismiss the complaint as to her. 5. The record amply supports the Trial Examiner's conclusion that the Respondent unlawfully refused to bargain with the Union. We agree with the Respondent's contention that Nancy Fondren must be counted as an employee included in the production and maintenance unit that the Union represented. Although Fondren performed clerical duties, she worked on the plant floor, was in constant contact with the production and maintenance employees, and was, we find, a plant clerical, and therefore included in the unit.-' Her inclusion raises the number of employees in the unit to 101, but does not affect 5 Belknap Hardware and Manufacturing Company, 96 NLRB 157. 554 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD the Union's majority status as of therdate.olf-theRespondent's refusal to bargain, as the evidence shows that 52 employees had already authorized the Union to bargain on their; behalf. We find no merit in the Respondent's contention that some of the cards relied upon by the Trial Examiner as proving the Union's majority status were improp- erly counted because in those instances the signatures of the employees were not identified. For purposes of establishing the Union's major- ity, it is sufficient that the cards were shown to have been received from the employees in question. - They were therefore properly received in evidence. Nor does the fact that some of the cards bore only the name of the CIO, with the space allocated for designation of the inter- national union left blank, derogate from the authority of United Paperworkers of America, CIO, to represent the employees 6 Accordingly, we find, as did the Trial Examiner, that the Re- spondent violated Section 8 (a) (5) of the Act. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Dolores, Inc., Memphis, Tennessee, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of Amer- ica, CIO, and United Paperworkers of America, CIO, or any other labor organization of its employees, by discriminating in regard to their hire or tenure of employment or any term or condition of employ- ment. (b) Refusing to bargain collectively with United Paperworkers of America, CIO, as the exclusive representatives of all employees in the appropriate unit, with respect to rates of pay, wages, hours of employ- ment, or other conditions of employment. (c) Dominating and interfering with the formation and admin- istration of Dolores Associated Employees, or any other labor organi- zation of its employees, and from contributing support to it or to any other labor organization of its employees. . (d) Giving effect to any and all contracts, or to any extension, renewal, modification, or supplement thereof, with Dolores Associated Employees. (e) In any other manner interfering with, restraining, or coercing its employees in the right to self-organization to form labor organiza- tions, to join or assist the above-named labor organizations or any other labor organization, to bargain collectively through representa- 6 Cummer-Graham Company, 90 NLRB 722; Weaver Wintark, 87 NLRB 351; The Nub one Company, Inc., 62 NLRB 322. DOLORES, INC. 555 tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all 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) Offer to Dorothy Kenyon, Lolo Mae Ungaro, Ann C. Rogers, Rubye Buse, Jane Gorman, Cathryn Childs, Edith Lovett, Louise Derryberry, Jewel Seratt, and Maudie Taylor immediate and full re- instatement to their former or substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges, and make whole each of said employees and Virginia Barnette in the manner set forth- in the section of the Intermediate Report entitled "The Remedy." (b) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amount of back pay and the right of rein- statement under the terms of this Order. (c) Withdraw all recognition from Dolores Associated Employees as a representative of any of its employees for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish said organization as such representative. (d) Upon request, bargain collectively with United Paperworkers of America, CIO, as the exclusive representative of all employees in the appropriate unit, and embody any understanding reached in a signed agreement. (e) Post at its plant in Memphis, Tennessee, copies of the notice attached hereto and marked "Appendix." 7 Copies of such notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by Respondent's authorized representa- tive, be posted by Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Fifteenth Region, in writing, within ten (10) days from the date of this Order, what steps Respondent has taken to comply herewith. In the event this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order," the words, "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT is FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that Respondent discharged Aline Hall in violation of Section 8 (a) (3) of the Act. Appendix 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, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist TEXTILE WORKERS OF AMERICA, CIO, and UNITED PAPERWORKERS OF AMERICA, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be effected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. We will bargain collectively, upon request, with UNITED PAPER- WORKERS OF AMERICA, CIO, as the exclusive representative of all employees in the bargaining unit described herein, with respect to grievances, labor disputes, wages, rates of pay, hours of em- ployment, and other conditions of employment, and if an under- standing is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All employees of Respondent at its Memphis plant ex- cluding salesmen, office workers, watchmen, guards, and supervisory employees. WE WILL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Dorothy Kenyon Cathryn Childs Lola Mae Ungaro Edith Lovett Ann C. Rogers Louise Derryberry Rubye Buse Jewel Seratt Jane Gorman Maudie Taylor WE WILL make whole Virginia Barnette. DOLORES, INC. 557 WE HEREBY DISESTABLISH Dolores Associated Employees as the representative of any of our employees for the purpose of deal- ing with us concerning grievances , labor disputes, wages, rates of pay, hours of employment or other conditions of employment, and we will not recognize it or any successors thereto for any of the above purposes. WE WILL NOT dominate or interfere with the formation or ad- ministration of any labor organization or contribute financial or other support to it. All our employees are free to become or remain members of UNITED PAPERWORKERS OF AMERICA , CIO, or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. 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 STATEMENT OF THE CASE Upon charges duly filed by Textile Workers Union of America, CIO and United Paperworkers of America, CIO, herein at times collectively called the Union, or the Textile Workers and the Paperworkers, respectively, the General Counsel of the National Labor Relations Board, respectively called herein the General Counsel and the Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued a complaint dated March 20, 1951, and an amended complaint dated April 2, 1951, against Dolores, Inc., herein called the Respondent,' alleging that the Respondent has engaged in, and is engaging in, unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2), (3), (4), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. With respect to the unfair labor practices, the complaint, as amended, alleges in substance that: (1) The Respondent from on or about February 19, 1951, dominated and interfered with the formation and administration of Dolores Associated Employees (herein called the Association), and contributed financial and other support thereto; (2) the Respondent on or about March 8, 1951, and at a time when the Association had not been designated or selected by a majority of the Respondent's employees, executed with the Association a collective bar- gaining agreement, having a term of 1 year and providing for automatic renewals thereof; (3) all employees of Respondent at its Memphis plant, excluding sales- men, office workers, watchmen, guards, and supervisory employees, constitute 1 Mr. Cannon withdrew from the case after the first day of the hearing. Thereafter, Mr. Powell and Mr. Johnston, president and plant superintendent of the Respondent, respectively, represented the Respondent until Mr. Jones appeared for the Respondent on the fifth day of the hearing. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a unit appropriate for the purposes of collective bargaining ; (4) on or abo'It February 8, 1951, and at all times thereafter , a majority of the employees in the said unit designated the Union as their representative for the purposes of collec- tive bargaining ; (5) at all times since February 8, 1951, the Union has been the exclusive representative of all employees in said unit; ( 6) on or about February 8, 1951, and at all times thereafter , the Respondent failed and refused to bargain collectively with the Union ; ( 7) the Respondent discriminatorily discharged and refused to reinstate Dorothy Kenyon, Virginia Barnette, Lola Mae Ungaro, Ann C. Rogers, Rubye Buse, Jane Gorman, Cathryn Childs, Edith Lovell, Louise Derryberry , Jewell Seratt, Maudie Taylor and Aline Hall ; and (8 ) the Respond- ent since on or about May 20, 1950, engaged in certain acts of interference, restraint, and coercion. The Respondent filed an answer on or about March 29, 1951, in which it admitted the jurisdictional allegations of the complaint but denied the commis- sion of any unfair labor practices. The Association also filed an answer in which it denied that the Respondent had dominated and interfered with its for- mation and administration and had contributed financial and other support to it. Pursuant to notice, a hearing was held at Memphis, Tennessee , from April 9 to 24, 1951, inclusive, before the undersigned Trial Examiner . The General Counsel, the Respondent , and the Association were represented by counsel, and the Union by its representatives . Full opportunity to be beard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the conclusion of the case , the Respondent moved to dismiss the complaint ; and the Association moved to dismiss those allegations of the complaint which alleged violation of Section 8 (a) (2) of the Act. The Trial Examiner reserved ruling on the motions . The motions to dismiss are disposed of as hereinafter indicated. The General Counsel moved to conform the pleadings to the proof, as to names , dates, and other minor variances . The motion was granted without objection . The Respondent also moved to amend its answer so as to deny specifically each and every allegation of the amended complaint. The motion was granted without objection. None of the parties presented oral argument at the conclusion of the hearing. The General Counsel , the Respondent , and the Association have filed briefs with the Trial Examiner. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Tennessee corporation with its office and plant located at Memphis, Tennessee, where it is engaged in the manufacture , sale, and distribu- tion of brassieres. During the last 6 months of the year 1950, the Respondent in the course and conduct of its business operations caused to be purchased and delivered to its Memphis plant cotton and nylon having a value in excess of $35,000. All of said material was transported to the Respondent's plant from points' outside of the State of Tennessee . During the same period, the Respondent manufactured finished products valued in excess of $50,000, of which approximately 99 percent was transported from said Memphis plant to points outside the State of Tennessee. At the times material herein, the Respondent employed approximately 95 persons. DOLORES, INC. II. THE ORGANIZATIONS INVOLVED 559 Textile Workers Union of America, CIO, United Paperworkers of America, CIO, and Dolores Associated Employees are labor organizations which admit to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES 2 A. Background; supervisory employees of the Respondent Some few years before the times under consideration herein, the Respondent had had a collective bargaining contract with the International Ladies Garment Workers Union, affiliated with the American Federation of Labor. It does not appear that this union was in any way active in the Respondent's plant in November 1950. On November 14, 1950, 6 of the Respondent's employees went to the office of F. M. Dickenson, a representative of the Textile Workers at the time. When they told him that they wished to form a union, he explained the necessary pro- cedure and gave them authorization cards of the CIO. He told them, in sub- stance, that at that time the question of which particular international union they should join could not be decided, and that the name of the union eventually chosen could be stamped on the cards later.' The cards were blue and contained a blank line for the name of a specific international union. Under this blank line was printed, "Affiliated With C. I. 0." and "I hereby request and accept membership in the above named union, and of my own free will authorize it, C. I.0., their agents or representatives to act for me as a collective bargaining agency. . . ." The 6 employees present in Dickenson's office signed authorization cards with the line for the international union left blank. Dickenson gave them cards for distribution among other employees. Early in January 1951, the em- ployees were advised at a meeting of the Union that they could choose between the Woodworkers and the Paperworkers as their bargaining representative. At a union meeting about 2 weeks later, the employees unanimously chose the Paper- workers. The meeting was attended by about 30 or 35 employees. Thereafter, "United Paperworkers of America, CIO" was stamped in the blank space on the authorization cards by Joseph B. Rinaldi, a representative of the Paperworkers. Robert Powell and Donald Johnston are president and plant superintendent of Respondent respectively. It was stipulated at the hearing that Grady Martin, assistant to Johnston, and Forest Hester, floorlady, are supervisory employees within the meaning of the Act. The Respondent admits that Bessie. Trussell was a supervisory employee until she went on sick leave during about March 1950, but contends that she was not a supervisory employee from March until December 1950, when she quit her job. The Respondent's contention in this respect is rejected. While it appears that Hester became the main floorlady after Trus- sell's illness, nevertheless the record discloses that Trussell's duties and authority did not change materially after March, with the possible exception that she performed more work on samples. Moreover, as will be hereinafter related and 2 The factual findings hereinafter related have been reconstructed by the undersigned from the credited testimony of all the witnesses. While for the most part the facts are not disputed or stand uncontradicted in the record, there are some direct conflicts in the testimony. Except in a few instances, these conflicts are not related or discussed herein; and testimony which conflicts with the facts found is not credited by the undersigned. 8 The testimony shows that the Textile Workers had planned to transfer Dickenson to a new locality l3ecause he preferred to remain in Memphis, he secured a transfer to the International Woodworkers of America, CIO, herein called the Woodworkers. This meant that the Textile Workers did not have a representative in the Memphis area. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found, during November 1950, Johnston and Powell consulted with Trussell and Hester concerning the contemplated discharge of five employees . Accordingly, it is found that Trussell was a supervisory employee at all times mentioned herein. The General Counsel contends that when Trussell quit her job , she was re- placed by employee Helen Mars, and that Mars is a supervisory employee. The Respondent contends otherwise . In brief, the evidence adduced by the General Counsel discloses that Mars distributed work to about 70 operators who worked on brassiers , changed operators to different jobs or from pieces to time work, marked on their production slips the time of employees when they were trans- ferred to time work from piece work, trained and instructed new employees, and on several occasions granted permission to employees to take time off from work. It appears that she was paid at a rate slightly less than that of Hester. Mars at times made samples, and this was the only production work that she performed. The Respondent's witnesses testified to the effect that Mars did not responsibly direct the work of employees and had no authority to hire, discharge or discipline employees, or effectively to recommend such action. From the testimony of Mars and Hester it would appear that no action was taken by Mars on her own re- sponsibility, except in marking employees' time on the production slips,' and that she merely relayed Hester's orders to the employees . The evidence conclusively shows that from January through March 1951, Hester was occupied for the most part with setting up new operations on baby clothes , which work was performed at the rear of the plant and away from the area where brassieres were produced. Concerning her observation of employees ' work, Mars was questioned and testified as follows : Q. Well, would you explain that a little bit more fully ? Do you watch and see who is-whether the girls have some work to do? A. Yes, sir, I sure do. Q. And how many machines do you try to watch at one time on that? A. Well, I don't-not any particular-I just know. Q. Well, now, whenever you see a girl lagging behind in her work, do you take it upon yourself to mention it to her or to discipline her? A. No, sir. Q. What do you do then, if anything? A. Well, if it is somethinb I tell Hester about it or Hester will know about it. A number of witnesses testified that it was their understanding that Mars was one of their supervisors. Accordingly, I conclude and find that Mars at the times material herein was a supervisory employee within the meaning of the Act. B. Interference, restraint, and coercion As related above, six employees went to the office of the Union on November 14, 1950, and thereafter blue authorization cards of the Union were circulated in the plant. This activity came to Johnston's attention, and at about 7: 30 a. in. on November 17, he made a speech to the assembled employees . In substance, * Mars testified that Hester knew when employees were on and off time work and that Hester told her the time to mark on the production slips However, Hester testified that it was "impossible for me to keep up with each one of them as they run out of work," and that Mars "helps me only to fill in the time." Hester and Mars testified that Hester signed all slips. DOLORES, INC. 561 he told them that he had heard that some "little blue cards " were being passed out in the plant ; that he was speaking for Powell and himself ; that the employees had had a union ( ILGU ) before; that a union would not do them "any good"; that he was not "threatening anyone's job " but he would not have a union in the plant ; that "no outsider is coming in and run this plant" ; and that "there is a garbage container setting on the outside and you might as well throw the little blue cards in the container." I believe and find that the above statements of Johnston are protected by Section 8 ( c) of the Act , and therefore do not constitute interference.' By letter dated February 8, 1951, the Union advised the Respondent that it represented a majority of the employees and requested recognition as the collec- tive bargaining agency. On about February 9, Johnston read this letter to the assembled employees and Powell made a short talk. Powell told the employees, in substance, that he was "surprised" that a majority had chosen the Paper- workers as their bargaining representative ; that "I'd rather the union [ILGU] you did have as to have the one that you're trying to get" since the Paperworkers did not know about piece rates and garment work ; and that "I 'm not saying it [Paperworkers ] is not coming in but I don't think it will " At the conclusion of his speech, Powell asked these employees who were in favor of the Union to raise their hands. No employee raised her hand. By requesting the employees to raise their hands, Powell was interrogating them concerning their union sympathies and activities . It is found that such interrogation constitutes interference , restraint , and coercion. A meeting of the Union was scheduled to be held at its hall during the evening of February 14, 1951. At about 3: 30 p. m. that day , Powell went to Jewel Seratt's machine and said, "Jewell, is that meeting going to be held at 136/ South Second Street ?" Seratt replied , "Yes, sir." The address mentioned by Powell was the location of the Union's hall. It is found that the above interrogation of Seratt by Powell constitutes intereference. As employee Louise Derryberry was punching out on the time clock on Febru- ary 14, Powell asked her if she were going to the union meeting. Derryberry replied that she did not know. Powell then said, "Well, Louise, if you go up there and call Mr. Johnston and tell him what happened at the union meeting, I'll make it well worth your while." The above statements of Powell to Derryberry are found to constitute inter- ference. The meeting of the Union was held on February 14, starting at about 4 : 30 p. in. Before and during the meeting, Johnston drove and parked his car in the vicinity of the Union's hall. Powell also was present for a short time. Concerning the reasons for his action , Johnston testified as follows : First, I just happened to go down town from the shop. I knew that the meeting was going on. I went down on Second Street, parked around and stayed there. I drove around and I parked . I was there. I saw several of the girls going in, or in the vicinity . I knew that there was a meeting in there. I wasn't down there to try to coerce them or interfere with them or try to stop them or anything. It is found that the Respondent by its surveillance of the Union 's meeting interfered with, restrained , and coerced its employees. On February 15, Powell , while Johnston was present asked employee Ollie (Skipper ) Brown if she had attended the union meeting.' 5 Carolina Mills, Inc., 92 NLRB 1141. ° As will be hereinafter related and found, Powell also questioned Jane Gorman concerning the meeting. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is found that Powell's interrogation of Brown constitutes intereference. From February 19, until February 22, Floorlady Helen Mars solicited employees to join the Association during working hours. When she solicited employees Ona Smith, Lilliam Wilburn, Ruby Riggins and Dorothy Carper, she asked them if they had joined the Union. Mars' interrogation of these employees is found to constitute interference. On about February 23, Wilburn was called to Powell's office. Concerning her conversation with Powell, Wilburn was questioned and testified credibly as follows : Q. Would you relate what he said, starting from the time-what he first started saying? A. Well, he first started saying something about CIO's. He said, "Lilly, Wilburn, I hear you belong to the CIO's," and I said, "Yes, sir." And so, then he said, "You girls don't need to think you are putting anything over me." And I said, "Mr. Powell, I'm not trying to put anything over you." Q. Anything else you can recall now of what he said? A. Well, then, he said his main subject was not that he sent for me- was that I had told in the CIO meeting, the following evening, that I de- signed a brassiere for the Company and the Company had stolen it from me. AndI said, "You know, Mr. Powell, I never said anything like that." # t # t * k i A. Well, he just said that he wanted to talk to me about this that was being told all over the plant, and said that he had someone listening in at the CIO meeting, and that I said at the CIO meeting that I had designed a brassiere for the Company and they had stolen it from me... . It is found that the above statements of Powell to Wilburn constitute inter- ference, restraint, and coercion. At the 3: 15 p. in. on February 28, Assistant Superintendent Martin told em- ployee Tullus White that a meeting of the Association was going to be held that afternoon. White said that there was no need for him to stay for the meeting since he did not belong to the Association. Martin replied that Johnston had said that White had "better stay" for his "own good." It is found that Martin's remarks contains a threat of reprisal and accordingly constitutes interference. C. Formation, domination, and support of the Association As related above, the Respondent engaged in surveillance of the Union's meet- ing on February 14, 1951. On February 15, Floorlady Hester told employee Jane Gorman that Powell wanted to see her in Johnston's office. Concerning her conversation with Powell, Gorman was questioned and testified credibly as follows : Q. Would you relate what took place ; what Mr. Powell said to you and what you said to Mr. Powell? A. Yes, sir. I went in there and Mr. Powell, the first words he said to me, he says, "I heard you saw us last night." And I said, "No, Mr. Powell, I didn't see you, I saw Mr. Johnston." Q. Just continue. What else?? A. Well, we started talking about different things-it was most-I don't know what it was about, but in that talk there he said to me, Mr. Powell said this : he said, "Jane, you know we are going to have a Company union." And I said, "Mr. Powell, I don't care ; I signed a CIO card." Q. What did he say? DOLORES, INC. 563 A. When we were talking about , you know, in there talking , and just before he said anything about the Company union , he said, "Jane, you are one of the backbones of the shop." Q. And in what connection did he say that? A. Well, he then told me about the Company union that he was going to have. On February 19, a group of employees who later became officers or active adherents of the Association went to the "front office" where Powell's office was located. Starting that day and continuing through February 22, these employees solicited other employees during working hours to join the Association by signing a blank piece of paper. Helen Mars, who was one of this group, joined the Association; and, as related above, solicited employees. On or about February 20, Mars requested employee Lilliam Wilburn to sign the paper. Wilburn re- fused. The following morning Mars again solicited Wilburn several times. Finally Wilburn stated that she wanted to see Powell and Mars took her to Powell's office. Wilburn told Powell that Mars had requested her to sign a paper for the Association and asked him what he had to offer the employees. Powell told her that he could not tell her at that time, but urged her to sign the paper. He also said that he wanted "to get all the girls to sign it that would," and that she would have a job as long as he owned the plant if she would sign the paper.' At 10 a. m. on February 22, the first formal meeting of the Association was held in the Respondent's front office. About 12 members were present and temporary officers were elected. It was also decided at the meeting to retain an attorney for drafting a constitution and other necessary documents. Another meeting was held at 10 a. in. on February 23 in the "modeling room," which was part of the front office. This meeting was attended by about 47 employees ; and a "discussion" was had concerning advice given by a Mr. Vance Alexander, an attorney who had been retained by the Association on February 22. On February 26, Marie Hart, a member of the Association's board of directors, was granted permission by Powell to have the power shut off at 3: 30 p. in. so that the Association could hold a meeting in the plant.' Johnston shut off the power and assisted the Association's present in announcing the meeting to the employees. He told them, in substance, that they could go home if they were not interested in the Association. Officers of the Association executed and filed with the United States Depart- ment of Labor affidavits required under Section 9 (f), (g), and (h) of the Act. The Department of Labor notified the Association of its registration by collect telegram, dated February 27. Powell's secretary received the telegram by telephone, and it was charged to and paid for by the Respondent. The Association intervened at a- representation hearing of the Board on February 28, and offered as evidence of its interest the blank paper which had been signed by employees during the period from February 19 to 22. The hearing officer refused to accept the offer, but advised the Association that it could submit proper authorizations at a later date. At 3: 45 p. m. that same day, the Respond- ent again shut off the power and permitted the Association to hold another meeting in the plant. 1 Clovis Brasswell testified credibly that on February 20 she was called to Powell's office and that he requested her to sign the paper for the Association. On about February 26, Betty Eastman, Powell's secretary, solicited employee Edith Lovett to join the Association. 8 The plant hours were from 7: 30 a. m. until 4 p. m. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Before the start of the meeting, Powell made a short speech to the employees e He told them, in substance, that "the biggest majority of the girls" had joined the Association ; that those who had joined the Union could "change" to the Asso- ciation; and that they could join either organization . Individual signed authori- zations were secured from the employees at the meeting. As related and found above, Assistant Superintendent Martin warned employee White to attend this meeting. During about the latter part of February or the early part of March, the Asso- ciation presented a "list" of its members to Powell and requested recognition as bargaining agent of the employees.10 Powell made a hasty check of the list against the payroll record, and told the Association's representatives that he would have to consult with his attorney before he could recognize them. On March 6, the Paperworkers requested permission to withdraw its petition for certification. The Board entered an order approving the request on March 7. By letter dated March 6, the Union notified the Respondent of its action. During the morning of March 8, Marie Hart went to the office of the Associa- tion's attorney and obtained a contract which he had drafted." The proposed contract was presented to Powell, and he signed it at sometime before 2 p. in. that same day after making only one minor change. Before signing the contract, and at about 12: 30 p. in., Powell called a meeting of all employees . He told them that the Union had withdrawn its petition for certification and then read to them the Association's proposed contract. He said that "the Labor Board" had given him "permission to sign" the contract and that he was going to sign it 12 Johnston also was present at the meeting. He told the employees that he had worked in a lot of plants ; that the Association's proposed contract was "about the best con- tract" that he ever had read ; and that "the girls that got it up should be con- gratulated." Later that day and starting at about 2: 30 p. in., the Association held a meeting in the Respondent's stockroom. The members approved the con- tract and elected permanent officers and a grievance committee. The meeting lasted for about 20 minutes, or about 10 minutes longer than the rest period which began at 2: 30 p. in. Johnston directed the employees who had not attended the meeting not to resume work until the meeting was concluded. All meetings of the Association after this date were held at a hotel in Memphis. The contract provided for a check-off of dues and initiation fees by Respondent from the wages of employees, to be "remitted to the treasurer of the Association, when request is made in writing by the Association." Section 9 of the contract provides in part, "In the event a member of the Association shall be discharged from employment from and after the date hereof and she believes that she has been unjustly dealt with , such discharge shall constitute a case arising under the method of adjusting grievances herein provided." The evidence discloses that the Respondent made the first deductions from wages for initiation fees and dues during April, without securing written autliorizations from individual employees. 9It is not clear from the record whether Powell made this speech on February 28 or on another date Hart testified that he made the speech before March 8, but not on February 26 Other testimony indicated February 26 as the date of his talk 10 The undisputed evidence shows that as of February 28 the Association had 55 mem, hers including Floorlady Mars and Nancy Fondren , a clerical employee who will be discussed hereinafter. 11 Hart and other officers of the Association were absent from work "a number of times" In order to take care of its business . Powell end Johnston granted them permission for this purpose. 12 Powell testified without contradiction that Mr. Sabella ( a field examiner of the Board) told him that it would be legal for him to sign the contract "since the CIO Paperworkers have withdrawn their petition for an election." DOLORES, INC. 565 R As will be hereinafter related and found, the Respondent terminated the em- ployment of Cathryn Childs , Louise Derryberry , Jane Gorman , and Edith Lovett on March 14, 1951. None of these employees had joined the Association. On March 16 they sent the following telegram to Powell : This is to advise you we feel our discharge was unjust and not in accordance with the seniority provisions of your agreement between Dolores Associated Employees and the Dolores Company. Inc. and we wish to meet with you to discuss this grievance under the terms of said Contract. Please advise. A copy of the telegram was sent to Marie Hart, then president of the Association. When no reply was received either from Powell or Hart , Childs called Powell on about March 19 and again requested a meeting Powell told her that he would have to consult his lawyer first . Later that same day the four employees met with Powell and Johnston Hart was present for part of the meeting. Con- cerning this meeting, Childs was questioned and testified credibly as follows : Q. Now, would you just start at the beginning of the meeting and relate what you said and what replies you got from Mr. Powell or Mr. Johnston, if any? A. Well, we told Mr. Powell-I acted as spokesman and we told him we thought we ought to be working. He asked us what it was we wanted to talk to him about , and we told him we thought we ought to be working , and he handed us a sheet of paper and told us : "Well, sign that." I didn't sign it and I passed it to the rest of the girls and they didn 't sign- A. I told him that he said that he read the contract of Dolores Association to all of us and lie said that all the employees would go to work and be laid cif by seniority , and I told him that that's why we were talking to him We thought we ought to be working Q. Now, then , did Mr. Johnston say anything about the contract? A. He said-he said : "Well , you want,the benefit of the contract but you don't want to belong to it. You are just contradicting yourself " Mr. Johnston said that. Q. All right. What was the final result of that meeting? What happened right at the end when you left? A. Well, Mr Powell took each grievance down-Betty Eastman took each grievance down and Mr. Powell said : "Well, although you aren't members, I'll take it up with the grievance committee and let you girls know," and said : "That is all girls." The paper which Powell asked the employees to sign reads : To WHOM IT MAY CONCERN : We, the undersigned, recognize and acknowledge as valid the contract entered into by the Dolores Associated Employees and Dolores, Inc., on March 8, 1951, and that there was no collusion between the parties to said contract. Further, we are willing to be bound by the contract and wish to avail our- selves of the grievance procedure therein. They were not notified of any action taken on their grievances until April 5, when they received the following telegram from the Association : Since we have heard no further from you but understand you did nego- tiate your grievance personally with Dolores, Inc., wish to advise that our grievance committee is willing and able to further negotiate on your behalf. 998(166-%'01 98-53-37 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . On about March 22, Johnston announced to the assembled employees that the Association had obtained a general wage increase for the employees , "with no thanks from the girls." _ From all of the evidence I conclude and find that the Respondent dominated and interfered with the formation and adminstration of the Association, and contributed financial and other support to it The facts found above show that Powell, Johnston , Mars , and Eastman , Powell's secretary , solicited employees to join the Association ; that Martin threatened an employee if he did not attend one of its meetings ; and that by their various speeches to the employees , Powell and Johnston gave strong support and approval to the Association. The record is replete with evidence, all of which has not been related herein, that the Re-' spondent permitted adherents of the Association to talk in groups and solicit members during working hours and to take time off from work in order to conduct the Association's business . Such favored treatment was not accorded to mem- bers of the Union, as will be hereinafter related and found. The Association was permitted without cost to hold its meetings on the Respondent 's time and prop- erty. It used the Respondent's plant as an address and the Respondent paid for one of its telegrams . Helen Mars, a supervisor , was a member of the Association, and the minutes of the meeting on March 8 show that she was active in the selection of its officers Further, while Section 9 of the contract is subject to interpretation if read together with the grievance clause, I believe and find that it is coercive by its own terms. As related above, Powell read the contract to the employees on March 8. I also find that the Respondent gave illegal support to the Association when it checked off initiation fees and dues without obtaining from the employees their written authorizations. D. The discharges 1. Dorothy Kenyon, Virginia Barnette, and Lola Mae Ungaro As related and found above, Johnston made a speech to the employees at the start of work on November 17, 1950, in which he, mentioned the blue authorization cards of the Union. At about 11 a. m. that day, while Johnston, Martin, Hester, and Trussell were in the stock room, employee Oma Magolio showed Johnston a blue authorization card and told him that Ungaro had given it to her that morning before work . Johnston replied, "Oh, I'm not bothered with that kind of thing." Later that day or the next day, Johnston told Trussell that he would discharge every employee before he would permit a union in the plant, and that "I'm putting a stop to this union as of right now." He then stated that he was going to discharge Ungaro, Derryberry , Willy Ford, Pearl Huff, and Calle Huff. Trussell thereafter told Hester of her conversation with Johnston, and they decided to talk to Powell and Johnston. They told Powell and Johnston , in substance , that they were not sure about Ungaro and Derryberry, but that it was a "big mistake" to discharge the other employees as they "definitely" knew that they were not connected with the Union . Hester also told them that Ungaro and Barnette were "union leaders." After discussing the matter with Johnston , Powell told Trussell , ". . . it is better that we think about this over the weekend and we'll look into it further because ... I wouldn't want to make a mistake." Kenyon was employed by the Respondent from January 1950, until her dis- charge on November 20, 1950. She was on sick leave from September 30, until November 16. She signed a union authorization card on November 17, which was given to her by Ungaro. DOLORES, INC. 567 Kenyon and Barnette worked at the same table which was approximately 4 feet wide by 14 feet long. They inspected and stacked "cups." On November 20 Johnston told Hester that Kenyon and Barnette were talking too much. Without giving any reason, Hester then directed Barnette to move to the opposite end of the table from Kenyon. Shortly thereafter, Johnston saw the two em- ployees together again and discharged them. Concerning her discharge, Kenyon was questioned and testified credibly as follows : Q. You say that you were discharged November 20. Would you relate the circumstances of how you were notified of your discharge? A. Well, after rest period, at 10: 10, Grady Martin came up to me and Virginia Barnette, a girl that was standing there, and he says: "Mr John- ston wants to see you in his office" So we went into his office, and he says: "There's been an undercurrent in the plant for," he says, "several weeks " And he says: "I know what is causing it and I intend to put a stop to it." He says : "I gave an order this morning," and he says, "That order was disobeyed," and he says, "When I give an order, I expect my order to be carried out." He says: "I'm having your checks made out." He says: "You sassed Bessie and Hester," and he says, "I'm having your checks made out. * a a Q All right. Did you make any reply to that? A. He wouldn't give us a chance to open our mouths. About that time someone carried our checks in, I believe it was Mr. Grady Martin ; I am not going to say for sure. But at that time they brought our cheeks in. He says: "That's the end of it." He says: "You are dismissed." And he wouldn't even give us a chance to open our mouths. He says : "Go to Nancy and she will make your separation slips out." Q. Who is Nancy? A. She's the time clerk. Q. Nancy Fondren? A. Yes. o e * t a Q. (By Mr. Stark) Now, you said that he wouldn't give you a chance to say anything. I'll ask you : Did you attempt to? A. Well, I opened my mouth and nothing came out, and this other girl, she tried to say something but he immediately started to walk out of the room and he- a r o * m o s Q. Can you, relate what she did say, if anything? A. I think she says, "Why, I just don't understand. What do you mean, I disobeyed?" or something like that, and in the meantime he just walked out of the room and left us-I think we were still standing out there, and so we went to Nancy and got our separation slips. Ungaro was a machine operator and was employed by the Respondent from July 1946 until her discharge on November 21, 19,50. She was one of the group of employees who went to the Union's office on November 14. She signed an authorization card on that date and thereafter solicited other employees to join the Union ,a Barnette did not appear as a witness at the hearing 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At about 10 a. m. on November 21, Ungaro was told by Trussell to report to Powell's office Powell told Ungaro that "20 or more of the girls" had told him that she was the "ringleader" of the Union. She did not deny, this. He then asked her if she knew "old man Harris." 34 When she replied that she did not, he said, "Well, you know some of them other representatives, I can tell from the way you talk and you seem to be more firmer and know more about that than any other girl, so you must be the leader, and I guess I'll just let you go." He then asked her to sign a resignation and said he would give her "the best of reference." Ungaro refused to resign, saying that she had not "done anything more than this union affair" and that she had not "broken any law." Powell replied, "Oh, no, you haven't broken any law, but I thought we would have this thing settled when the Union went out ; that we weren't going to have it in here any more." When Ungaro told hint that she had signed a union card, he said, "You are through." He then told her to go back to her maching and "go to work." About 10 minutes later Powell went to Ungaro's place of work and discharged her. He told her to go to Johnston's office for her checks Nancy Fondren gave her a release which was signed by Johnston and stated as the reason for discharge: "A disturbing influence on factory morale; not willing to follow orders." Ungaro protested to Fondren that the release was "not right." Fondren replied that Johnston had made it out. The Respondent contends that Kenyon and Barnette were discharged for talk- ing and failure to obey Johnston's orders, and that Ungaro was discharged be- cause she continually selected bundles of the smaller sizes. The Respondent's contentions are rejected; and I find that these reasons are mere pretexts for the discharges. There is no evidence in the ease that Barnette signed an authorization card or was active on behalf of the Union. However, 2 or 3 days before her discharge Hester told Powell and Johnston that Barnette and Ungaro were leaders of the Union. Johnston suspected that Kenyon and Barnette were talking about the Union, as is shown by his statements to them at the time of their discharge. The Respondent had no rule against talking, and Kenyon testified credibly that she had not been warned about talking. In fact, as related and found above, ad- herents of the Association talked in groups and solicited members during work- ing hours without interference from the Respondent. Further, the Trial Ex- aminer is unable to believe that talking would interfere with the production of Kenyon and Barnette. They "clipped" and "stacked" cups on a table. They sat on movable stools and worked with their hands Obviously, they could talk and work at the same time. Under the circumstances, their separation by Johnston and Hester shows the discriminatory treatment accorded adherents or suspected adherents of the Union. Johnston testified that over a long period of time Kenyon and Barnette talked constantly, that they had been warned by their supervisors, that several operators complained "quite a few times" that they were not being supplied with cups, and that Hester told him that Kenyon and Barnette gave her "back-talk" when she separated them on November 20. I do not credit Johnston's testimony in this connection. It is undisputed that Kenyon was absent on sick leave for over 6 weeks and that she did not return to the plant until November 16. According to Johnston, Kenyon was completely unsatisfactory as an employee. Apparently, his testimony relates for the most part to Kenyon's employment before her sick leave. Nevertheless she was rehired on November 16 and discharged after 14 "J D Harris. Jr C. I 0 Representative" is stamped on the back of the Union's authorization cards DOLORES, INC. 569 working for only 2 days. Moreover , Hester testified that Kenyon and Barnette did not "talk back" to her or "sass " her when she separated them, and that she did not make any such report to Johnston. It is undisputed that Ungaro was one of the higher paid production workers. Johnston testified that she was a cup-maker ; that she consistently took bundles of the smaller sizes, leaving the larger sizes for other employees ; that although other employees were guilty of the same practice, Ungaro was the worst offender; that he discharged her for this reason ; and that he knew that Powell had talked to Ungaro on the day of her discharge However, Ungaro and Trussell testified credibly that during the week before Ungaro's discharge she worked on girdles, that during the morning of her discharge Trussell gave her a bundle of cups for a special order ; and that she was discharged while working on that bundle. It is apparent from this testimony and from Powell statement to Ungaro before her discharge that Johnston's reason was purely a pretext. Accordingly, I find that the Respondent discriminatorily discharged Kenyon, Barnette, and Ungaro. 2. Ann C. Rogers and Ruby Buse Rogers last was employed by the Respondent from November 6, 1950, until she was laid off on December 13 , 1950. Previously she had been in the Respond- ent's employ for an undisclosed period of time. Her job was to cut the "eyes" in the elastic band ( not a machine operation ), and she was paid a straight salary for this work. The Respondent first employed Buse in July 1950, as a machine operator on binding. During the early part of her employment Floorlady Trussell cautioned her once about defective work. Buse consistently was unable to make the mini- mum wage required under the Fair Labor Standards Act when she was paid on a production basis ; and starting on about November 20 she was assigned to various jobs , or "time work," for which she was paid at the rate of 75 cents per hour. On December 15 Floorlady Hester notified Buse that she was being laid off from work until January 2, 1951. The evidence discloses that the Respondent 's plant shut down except for a skeleton force from about December 15 until the first week in January 1951. The payroll records show that 93 persons were employed for the week ending December 15, 93 for January 12 , 9S for January 19, and 96 for January 26 On December 21 and 22, the Respondent placed "Help wanted" ads in two Memphis newspapers, calling for experienced machine operators. During January when they heard that other employees were being recalled, both Rogers and Buse made a number of attempts to return to work. On each occasion they were told by either Johnston , Hester or Martin that all employees had not been "placed" and that they were unable to tell when Rogers and Buse would be recalled During Rogers ' first talk with Johnston, she asked him if she had made a "good hand." He replied, "Oh, yes." The Respondent sent Rogers a separation notice, dated January 23, which stated that the Respondent had "permanently ceased to employ her" on December 13 with the reason noted, "Lack of work ." Buse received a similar separation notice on or about February 1. The evidence discloses that Buse signed an authorization card of the Union on December 10 and that Rogers signed one on December 13. Buse testified that she talked to other employees about the Union , distributed "some" author- ization cards and attended Union meetings during the period from December through February. Rogers testified that she "talked for the union" and at- tended union meetings during January and February. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent contends that Rogers and, Buse were . not recalled because of their "poor work." " Johnston testified, in substance, that Buse's failure to make the minimum wage was one of the main reasons for termination of her employ- ment ; that Rogers was not recalled because of "poor cutting of the eyes" ; that he spoke to Rogers about defective work "on 3 or 4 occasions" ; and that one of the reasons why he did not recall Rogers and Buse was because he had heard that they had been employed by the Ray Lee Company " Johnston's testimony heretofore has been discredited, and I do not credit his testimony in this connection. As related above, "Lack of work" is shown on the separation notices as the reason for termination,of employment In the case of Buse, the evidence discloses that at least 15 of the Respondent's employees failed to make the minimum wage but were not discharged. Rogers admitted that during about the first week of her employment she made some mistakes. However, Trussell testified credibly that she spoke once to Rogers concerning defective work on about November 6 (the date of Rogers' reemployment), and that thereafter Rogers' work was "real good." Finally, I do not believe that Johnston would have waited until the end of January before terminating Rogers and Buse if he actually was concerned about their alleged "poor work." That he was not so concerned is indicated by the statements he or other supervisors made to them when they inquired about work (luring January. In each instance they were led to believe that their reemployment was imminent. The question remains whether or not the Respondent had knowledge that Rogers and Buse were adherents of the Union at or about the time of the mass recall of employees in January. There is no direct proof to this effect in the record. However, as related above, the evidence shows that both Johnston and Powell maintained a close surveillance of the union activities of the employees before and after the date in question It is undisputed that a number of em- ployees reported to Powell by telephone concerning union activities; and his statements, found above, strongly indicate that he had an informer who was present at meetings of the Union Under the circumstances, I believe and find that the Respondent had knowledge of the union activities of all of its employees. Accordingly, I conclude and find that the Respondent failed to recall to work and discharged Rogers and Buse because of their membership in and activities on behalf of the Union. 3. Jane Forman. Cathryn Childs, Edith Lovett, and Louise Derryberry These four employees were machine operators on binding, and had been employed by the Respondent from 2 to 4 years before being laid off on March 14, 1951 They all were active adherents of the Union. They attended its meetings and distributed authorization cards to the other employees. All but Lovett attended the representation hearing of the Board on February 28, 1951, having been subpenaed as prospective witnesses for the Union Childs testified at the hearing in support of the Union's contentions. As related above, Ungaro was discharged on November 21, 1950. On that day Gorman was directed to ego to Powell's office by Trussell. Concerning her con- versation with Powell, Gorman was questioned and testified credibly as follows: Q Relate what Mr. Powell said. A. He said, "Jane, sit down." And I sat down and he closed the door and he said, "Haven't we got along pretty good?" And I said, "Yes, sir." 11 This reason is shown on the Respondent 's personnel records. 16 The evidence shows that Rogers never had worked for the above company, and that Buse was not employed by it until February 20, 1951. DOLORES, INC. 571 He says, "You have been here a long, quite a long while," . . . and talked to me real nice. And he asked me something about, you know, about an organization coming in here and I didn't know at that time about an organi- zation coming in. So, I says, "Mr. Powell, I don't know." Because I didn't know and I figured he was talking about the Union then because he was saying-I don't know what it was exactly now what he did say, but we got to talking. I says, "Mr. Powell, did you ask me that on acount of a blue,card?" And I told him-I showed Mr. Johnston the blue card and I showed it to Mr. Grady Martin. It was a blue layaway card and I told him that. I says, "Mr. Powell, you know I got out of that other Union. You called up my brother-in-law, Quenton Garman and told me to get out." * * * * * * * Q. (By Mr. Stark ) You said about some other union; what union? A. AFL. Gorman attended the meeting of the Union on February 14, 1951. It has been found that the Respondent engaged in surveillance of that meeting. As related and found above, on February 15 Powell called Gorman to the office and ques- tioned her about the meeting . When he mentioned a "company union," Gorman replied, "Mr . Powell, I don't care ; I signed a CIO card." On February 27 Gorman had a conversation with Powell and Johnston in the latter's office. While conditions in the plant were being discussed, Johnston said, "Jane, let's put it this way. What can a union do that we can't do?" Gorman replied, "I don't know." On about March 12 Powell called Gorman to his office and reprimanded her for an argument that she had had with Marie Hart, president of the Association 17 Powell stated, "Jane, that's where you made your mistake " As found above , Powell requested Derryherry to report to Johnston what occurred at the meeting of the Union on February 14. Derryherry (lid not comply with Powell's request. On February 15 she and Childs were called to Powell's office in order to witness a money payment to Trussell by the Respond- ent18 After the payment had been made , Powell had a conversation with Derry- berry and Childs during which he said, "Well , Louise, as a shining example, I asked you to do something for me yesterday and you did just the opposite." Derryberry replied, "Well , Mr. Powell , I'll tell you in front of Kathryn [ Childs] what happened at the union meeting yesterday ." Although Powell said that he did not want to hear about it, Derryberry told him about the meeting. About February 19 Derryberry was called to Johnston 's office. Powell, John- ston, and Martin were present. Powell told her that some employees had told him that she had started some "rumors " about him and asked her if she wanted to resign from her job . Derryberry denied starting any rumors and refused to resign. As related and found above, the Union sent a letter dated February 8, 1951, to the Respondent. On about February 9 Johnston read this letter to the assembled employees ; and Powell made a speech . At the conclusion of his speech , he asked the employees to raise their hands if they were in favor of the Union. On or about February 15 Childs had a conversation with Powell in Johnston 's office. 17 Gorman testified that during the night of March 10 or 11 she had received numerous telephone calls urging her to join the Association : that some two or three of the persons calling identified themselves as Hart . that she then called Hart and had an argument with her , and that they agreed to be "friendly " when Gorman recognized that Hart was not the person who had called her 18 Trussell had resigned her Job in December 1950. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Powell asked her, "Cathryn , why didn't the girls raise their hands when I asked them if they wanted a union ?" Childs replied , "I don't know, Mr. Powell, unless they just didn't want to tell you yet." On about February 16 or 17, Childs was called to Johnston's office. Powell and Johnston were present . Concerning her conversation with them, Childs was questioned and testified credibly as follows : Q. All right. Would you relate what was said by Mr. Powell , Mr. John- ston, and you on that occasion? A. Well, he said I was causing unrest in the plant. Q. All right. A. And that two-thirds of the girls told him I was, and I told him I didn't believe that. I didn't believe a girl would come in there and tell a lie like that, and so I asked Mr. Johnston if he thought I was, and he said Yes. And Mr. Powell sit there a while and then he asked me if I thought the union was doing any good, and I told him Yes, sir. And lie says, "Well , Cathryn, do you want to resign?" I said : "No, sir, I hadn't done anything to resign for." And then he sat there and looked at me a few minutes and told me I could go. At about noon on March 14, and while they had unfinished work on their machines, Childs, Gorman, Derryberry, and Lovett were told by Hester to punch out on the time clock and not to return to work, until they were called. Later that day they obtained separation notices which gave as the reason for the lay- off, "Lack of work . Probable duration unknown." As related and found above, these four employees met with Powell and Johnston on about March 19 and attempted to file a grievance under the provisions of the contract between the Respondent and the Association . Powell requested them to sign a statement which acknowledged the validity of the contract ; and the employees refused. As of the date of the hearing herein, Childs , Derryberry, Gorman, and Lovett had not been recalled to work by the Respondent. In brief. the Respondent contends that these four employees were laid off because of a shortage of material , particularly elastic. Johnston testified that their machines have not been "in production " since they were laid off. The Respondent 's contention is rejected The Respondent 's contract with the Association provides for seniority "by job classification " However, the evidence discloses that all four employees had more seniority in length of service than other binders who were not laid off. As related above, the Respondent adver- tised for experienced machine operators during December 1950. Further, if there actually was a serious shortage of the materials essential to the manu- facture of brassiers , it would appear that the work of many employees would have been affected. Such was not the case. From the statements and actions of Johnston and Powell , related above, it is clear that they were concerned with the union membership and activities of the four employees , and their failure and refusal to join the Association . Accord- ingly, it is found that the Respondent discriminated against them by laying them off on March 14. It also is found that by laying off Derryberry , Gorman, and Childs the Respondent violated Section 8 (a) (4) of the Act. 4. Jewel Seratt Except for 1 month during 1948, Seratt was employed continuously by the Respondent from September 1946 until her discharge on March 20, 1951. Her main job was that of sewing hooks on elastic . She was one -of the six employees who went to the Union 's office on November 14. 1950, and'signed an authorization DOLORES, INC. 573 card on that (late. Thereafter, she distributed cards to employees and attended union meetings. As found above, on November,17, 1950, Johnston made a speech to the em- ployees, concerning the blue authorization cards,of the Union On about Novem- her 21, Eastman, Powell's secretary, solicited employees to sign a statement concerning the speech. Seratt refused to sign it. Later she was called to Powell's office and he asked her to sign the statement. Eastman also was present and took notes. Seratt said she would sign the statement if it contained "exactly" what Johnston had said At Powell's request, Seratt then related her version of the speech. Seratt did not sign the statement. As related above, on February 14 Powell interrogated Seratt as to the place where the meeting of the Union was to be held on that date ; and Seratt told him. Seratt was discharged by Johnston on March 20, 1951. Concerning her dis- charge, Seratt testified credibly as follows : Well, forest Hester came and said, Mr. Johnston wanted to see me in the office and I went in. Why, he had nine brassiers laying on the table, on the desk, and he -says, "Jewell, is this your work?" I said, "Yes." Because I'm the only girl that does the work. "He said, "Did you know you would be fired for this?" I said, "I don't think that anyone can make them perfect by putting out as many as I did " I put out about 3,600 a day to keep two girls in work, and he says, "I ... warned you five times " Mr. Johnston never warned me of any bad work. At the end of the above conversation, Johnston handed Seratt her check and a separation notice which stated the reason for discharge as "lack of work." The Respondent contends that Seratt was discharged because of "Poor work." In this connection Johnston testified to the effect that he, had called Seratt's at- tentiQn to detective brassieres "over a long period of time." Seratt admitted that she was cautioned by Trussell about defective brassieres on two occasions, once in 1948 and in December 1950.' Seratt testified that no other supervisors had spoken to her about poor work, and that no defective brassieres had been returned to her from January 9, 1951, until the day of her discharge. The undersigned is convinced and finds that Seratt's alleged poor work is a pretext seized upon by the Respondent in order to justify her discharge. The evidence conclusively shows that the Respondent knew that she was an adherent of the Union. Further, when Seratt resigned her job in August 1948, Powell gave her a letter of reference as follows : To Whom it may concern : Ordinarily the plant superintendent or per- sonnel director writes our letters of recommendation However, Mrs. Jewel Seratt has not been the usual run of employee. And I feel obligated to write this letter myself. Mrs. Seratt has been in our employ the past two years and I have person- ally found her to be entirely dependable, trustworthy, capable and loyal I can definitely assure you that anyone fortunate enough to secure her services will be well rewarded. Mrs. Seratt is leaving entirely of her own volition and we definitely will feel the loss. All employer inquiry blanks carry the question to former employers "Would you rehire this employee?" and my answer in this case is-definitely ! Accordingly, I find that the Respondent discharged Seratt on March 20, 1951, because of her, membership in and activities on behalf of the Union, 19 Trussell testified that she recalled speaking once to Seratt in September 1950. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Maudie Taylor Taylor was employed by the Respondent from August 1946 until her discharge on March 21, 1951. She signed an authorization card of the Union on November 16, 1950; and thereafter distributed cards to other employees and attended union meetings. She attended the representation hearing on February 28, 1951, under subpena as a prospective witness for the Union. Taylor was discharged by Johnston on March 21, Powell was present at the time. Concerning her discharge, Taylor was questioned and testified credibly as follows : THE WITNESS : Mr. Johnston says ; "Well, Maude, I guess you know we're changing this type of work-" * * * * * * * A. And I told him that I knew that because I had been working on dif- ferent jobs-in fact, I've-ever since I've been there, but for the past two weeks I'd been working on the baby clothes.. A. And he said, well, anyway, he was changing it and he was going to start putting eyes with a double-needle and he said he didn't think that I could do it, and I told him that I thought I could because I've been there- I've had six years of experience, and Bonnie Taylor has only had two or three. * * * * * A. He said he had Bonnie out there on that machine, and I asked him if he thought it was fair, and he said Yes. * * * * * * * A. I told him that he didn't have to make any excuses ; that I knew be- cause I had joined the union ... Q (By Mr. Stark) Now, Maude, you say Mr. Powell jumped up? A. Wes, sir ; he was the one. Q. What did he say? A. He said: "Well, you have been in the union a long time, haven't you?" And I said : "Well, not so long." After the above conversation, Taylor was given a separation notice which gave as the reason for discharge, "Discontinuing this type of work." Johnston testified that he terminated Taylor because of a "particular problem that I had at that time changing over from her operation on the single needle to a double needle method of inserting the eyes ;" that the Respondent had added a new "attachment" to a machine for this purpose ; that no other em- ployee had any experience with this attachment; that Taylor was discharged also by reason, of her "talking" over "quite a period of time" ; and that em- ployees Gladys Buskirk and Tarlie Armstrong complained to him about Taylor's talking. Buskirk testified that she worked next to Taylor for 3 or 4 days ; that Taylor talked "constantly"; and that she complained to Powell. Armstrong testified that she worked next to Taylor ; that Taylor's talking interfered with her work ; that she made a complaint "through the Association" ; and that she did not complain to anyone else. Neither Buskirk nor Armstrong impressed the undersigned as reliable or credible witnesses. The undisputed evidence shows that Buskirk replaced Seratt when she was discharged on March 20. Therefore, Buskirk worked ' YnoEo'RES, INIC.' == - 575 next to Taylor for only a day or less and not the length of time to which she testified." Insofar as Johnston's testimony is concerned, it is significant that adherents of the Association were permitted to talk in groups and solicit mem- bers during working hours without interference from the Respondent. Accordingly, I find that Respondent's reasons for discharging Taylor are mere pretexts, and that she was discharged disci iminatorily in violation of Section 8 (a) (3) and (4) of the Act 6. Aline Hall Hall worked for the Respondent during 1948 and 1949. Her last period of employment was from January 30, 1951, until her discharge on March 21, 1951. She was a machine operator on "straps." She signed an authorization card of the Union on February 7, and thereafter attended its meetings. On March 20 Hall did not report for work as her daughter was sick and she did not notify the Respondent. Early during the morning of March 21, she called the Respondent and spoke to Nancy Fondren, a stock and payroll clerk who worked in Martin's office. She told Fondren that she would come to work that day if needed. Fondren, after talking to Johnston, said that she was not to return to work until called. As of the date of the hearing herein, Hall .not not been recalled to work by the Respondent. Respondent's peisonnel records show that Hall was terminated for "Absent without calling " Concerning the reasons for discharging Hall, Johnston testified as follows : For continuous absenteeism. In the prior time that she had worked for us, or before she's quit, she had quite a bit of time off that she was absent from her job. Some other time she would call in, other times she would not. I believe she came back to work for me in February. She had some absenteeism-she had been absent some 40 hours during that month. s • • • s s s Between that month's period of time she had been absent some 40 hours, not calling in and notifying me of the reason for her being absent, which I couldn't, not knowing whether she was coming to work or not, which didn't -help me in planning my schedule any. In other words, I planned for her being absent, and she'd show up, and then she wouldn't be there and I had planned for her, maybe the next day, and she wouldn't be there. And I'd have to then reschedule work around her. So, when she did call in, after being absent one or two days Nancy received the phone call and come back and asked me what to tell her. I told her then not to come in till I called her in again. Hall testified credibly that during her last period of employment by the Re- spondent she missed work only when the plant closed because of extreme weather. Respondent's production records show that Hall was absent for only 1 day and parts of 3 other days. Johnston admitted that the plant did not open on several days during this time because of the weather. While under all the circumstances I believe that the Respondent's motive in discharging Hall is questionable, I find that the General Counsel has failed to sustain the burden of proving that she was discharged discriminatorily. The General Counsel points out in his brief that adherents of the Association fre- 20 Buskirk testified that she filed a charge with the Board against Taylor because of her talking about the Union. 576 DECISIONS OF NATIONAL -I,ABOR'RELATIONS BOARD quently were absent from work. - However, it is undisputed that they obtained permission for such absences from Powell and Johnston Accordingly, it will be, recommended that the complaint be dismissed as to Hall. E. The refusal to bargain 1. The appropriate unit and representation of it majority therein The complaint alleges that all employees of Respondent at its Memphis plant, excluding salesmen, office workers, watchmen, guards, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining. The Respondent's answer neither admits nor denies this allegation of the complaint No evidence was adduced at the hearing which would conflict with the unit alleged to be appropriate Accordingly, the undersigned finds that said unit has at all times material herein constituted and does now constitute an appropriate unit within the meaning of the Act; he finds that said unit will insure to the Respondent's employees the full benefit of their rights to self-organization and collective bar- gaining, and otherwise effectuate the purposes of the Act. The evidence' discloses that as of February 8, 1951, 52 employees had signed authorization cards of the Union. Respondent's payroll for the week ending February 9, 1951, was introduced in evidence. This payroll shows a total of 98 employees, including Hester, Mars, and Nancy Fondren, but excluding the 5 employees who had been discharged discriminatorily before that date. It was stipulated at the hearing that Hester is a supervisory employee. The Respondent contends that Helen Mars and Nancy Fondren are not supervisory employees and that they should be included in the unit. The Gen- eral Counsel contends otherwise. It has been found above that Mars is a super- visory employee. -The undisputed evidence in the case conclusively shows that Fondren is a stock and payroll clerk. She works alone in the stockroom, apart from other employees, and Assistant Superintendent Martin has his office there. She does not perform any production work. Therefore, Fondren also is excluded from the unit as an office worker closely associated with management. The 52 authorization cards, including those of employees Ungaro, Kenyon, Buse, and Rogers, were received in evidence. Barnette, who did not sign an authorization card, also was discharged discriminatorily. The General Counsel apparently contends that Barnette should not be included in the unit because she gained other employment early in January and does not desire reinstatement. Since she was discharged discriminatorily, this contention is rejected. Accord- ingly, since it appears that there was a total of 100 employees in the appropriate unit as of February 8, including the 5 above employees who were discharged, I find that the Union on and after February 8, 1951, represented a majority of the employees in said unit for the purposes of collective bargaining. ^. The Union's requests to bargain By letter dated February 8, 1951, the Union notified the Respondent of its majority representation and requested recognition and meetings for the purpose of collective bargaining. This letter was read to the employees on February 9 and Powell asked employees who were in favor of the Union to raise their hands. No employee raised her hand. On about and after February 9, Powell had several conversations with repre- sentatives of the_ Union The Union offered to show Powell the authorization cards if he would recognize it. Powell refused to recognize the Union and DOLORES, INC. 577 stated, "Well, if you can show me the cards or a list or anything to indicate the majority . . . 1 will be glad to have an election ." The Union sent a letter dated February 22 to the Respondent , again asking for recognition or in the alternative that the Respondent agree to an election . It does not appear that the Respondent answered this letter . As related above, the representation hearing was held on February 28. The Union requested permission to withdraw its petition on March 6; and the Respondent entered into a contract with the Association on March S. The Respondent admits in its answer that it refuses to recognize or bargain with the Union . Concerning his reasons for refusing to recognize the Union, Powell was questioned and testified as follows : Q. Oh, you offered to have an election if they showed the cards? A. Yes. Q. I see. A. But, it was my understanding that is what they were asking for. Q. You did not say then that you would recognize them if they showed you that they had a majority of the cards? A. I thought that was contrary to law. I didn't know-I thought you had to have an election before a union could come into your plant. Q. Did you have an election with Dolores Associated Employees before you signed their contract? A. No, I thought you had to have election , unless the employer was agree- able to it, to the union coming in. Q. All right, you were agreeable to Dolores Associated Employees? A Yes. Q. So you did not have an election? A. Yes. Q. But you were not agreeable to the CIO coming in and you required them to have an election ; is that it? A. Yes, since they showed no evidence of having the majority or of hav- ing anyone for that matter , as members. The Union offered to prove its majority by a showing of authorization cards. However, Powell refused this offer by stating that he would not agree to a con- sent election until the Union showed him the cards and proved its majority status. The Union rightly refused such a proposition. Provided that it was acting in good faith , the Respondent had a right to insist on an election to establish majority. That the Respondent was not act- ing in good faith is apparent from the testimony of Powell himself and from the Respondent 's haste to recognize and contract with the Association , although the Association's proof of majority to Powell consisted merely of a list of its alleged members . The unfair labor practices heretofore found also establish the Respondent's bad faith in the matter. Accordingly , it is found that the Respondent in violation of Section 8 (a) (5) of the Act refused to bargain collectively with the Union on and after February 9, 1951. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above , occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent by its course of conduct on and after February 9, 1951, refused to bargain collectively with the Union as the exclu- sive representative of its employees in a unit appropriate for the purposes of collective bargaining. Accordingly, it will be recommended that the Respondent bargain collectively, upon request, with the Union as the exclusive representa- tive of its employees in the aforesaid appropriate unit, and that the Respondent embody any understanding reached in the course of such collective bargaining, upon request, in a written agreement, signed by the parties affected thereby. It has been found that the Respondent dominated and interfered with the formation and administration of, and contributed support to, the Association. It will therefore be recommended that the Respondent withdraw all recognition from the Association as representative of its employees for the purpose of deal- ing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish it as such representative. The undersigned will also recommend that the Respondent cease and desist from giving effect to the contract of March 8, 1951, or to any extension, renewal, modification, or supplement thereof, or any superseding contract or agreement which may now be in force Nothing in this recommendation, however, should be taken to require the Respondent to vary those wages, hours, and other sub- stantive features with the employees themselves, if any, which the Respondent established in the performance of such contract, as extended, renewed, modi- fied, supplemented, and superseded. It has been found that the Respondent discriminatorily discharged Dorothy Kenyon, Virginia Barnette, Lola Mae Ungaro, Ann C. Rogers, Rubye Buse, Jane Gorman, Cathryn Childs, Edith Lovett, Louise Derryberry, Jewel Seratt, and Maudie Taylor In the case of Barnette, the General Counsel stated at the hearing that she had entered a nursing school early in January 1951, that she did not desire reinstatement, and that because of religious principles she would decline to accept any pay lost by reason of the discrimination against her. The General Counsel also stated that he "waived" any recommendation as to her. Under the circumstances no recommendation as to reinstatement will be made in Barnette's case. As to the other employees named above, it will be recommended that the Respondent offer to each of them immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority or other rights or privileges. It further will be recommended that the Re- spondent make whole each of said employees, including Barnette, for any loss of pay she may have suffered by reason of the Respondent's discrimination by payment of a sum of money equal to that which each would have earned as wages from the date of the discrimination to the date of an offer of reinstate- ment, or to the date of the hearing in the case of Barnette,2' less her net earn- ings during said period. Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from the Re- spondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, herein Balled quarters, shall begin with the first day of u Since there is no evidence in the case other than the statement of the General Counsel, it is presumed that Barnette made up her mind to refuse reinstatement on the above date. This presumed date hereafter may be asceitained more accurately by a post-enforcement hearing or agreement. DOLORES, INC. 579 January, April, July, and October. Loss of pay shall be determined by deduct- ing from a sum equal to which he would normally have earned for each quarter or portion thereof, his net earnings, if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back- pay liability for any other quarter In accordance with the Woolworth deci- sion 22 it will be recommended that Respondent, upon reasonable request, make available to the Board and its agents all records pertinent to an analysis of the amount due as back pay. The unfair labor practices found reveal on the part of the Respondent such a fundamental antipathy to the objectives of the Act as to justify an inference that the commission of other unfair labor practices may be anticipated. The previous purposes of the Act'may be frustrated unless Respondent is required to take some affirmative action to dispel the threat. It will be recommended, therefore, that Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 Textile Workers Union of America, CIO, United Paperworkers of America, CIO, and Dolores Associated Employees are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of the employees named above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By discharging Cathryn Childs, Louise Derryberry, Jane Gorman, and Maudie Taylor, the Rospondent also has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (4) of the Act. 4. All employees of Respondent at its Alemphis plant, excluding salesmen, office workers, watchmen, guards, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. United Paperworkers of America, CIO, was on February 8, 1951, and at all times since has been, the exclusive representative within the meaning of Section 9 (a) of the Act of all employees in the aforesaid unit for the purposes of coUeetive bargaining. 6. By refusing to bargain collectively on and after February 9, 1951, with the aforesaid Union as the exclusive representative of the employees in the appro- priate unit, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 7. By dominating and interfering with the formation and administration of, and by contributing support to, Dolores Associated Employees, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 8. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (a) (1) of the Act 9. By discharging Aline Hall the Respondent has not engaged in any unfair labor practice. F W Woolworth Co , 90 NLRB 289 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] ALLIED CONTAINER CORPORATION and UNITED PAPr:RWOIu ERS OF AMER- ICA, CIO., PETITIONER. Ca.$e No. 1-RC-2497. March 12, 1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Lee J. Halloran, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its power in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, forthe following reasons: The Employer and the Intervenor, Local 13521, District 50, United Mine Workers of America, assert that a collective bargaining contract which they signed on July 28, 1950, effective to July 31, 1952, is a bar to this proceeding. The Petitioner contends that the contract is not a bar because of (a) a schism within the contracting union, and (b) the defunctness of that union. Following the Intervenor's winning of a State-conducted election among the Employer's production and maintenance employees, the Employer and the Intervenor entered into the contract asserted to be a bar. In July 1951 the contracting parties signed a supplement granting a wage increase subject to approval of the Wage Stabilization Board. On October 13, 1951, the members present at a regular meeting of the Intervenor, attended by approximately one-half of the total Inembership, voted unanimously to disaffiliate from the Intervenor and affiliate with the Petitioner? All officers of the Intervenor joined in the disaffiliation movement. International representatives of Dis- ' A posted announcement of the meeting did not state that one of its purposes was to vote on a change of affiliation . However , word that such action would be taken at the meeting was spread by word of month. 98 NLRB No. 90.