Hamilton-Brown Shoe Co.

In the Matter Of HAMILTON-BROWN SHOE COMPANY, A CORPORATION and LOCAL No. 125 UNITED SHOE WORIcERS OF AMERICA, AFFILIATED WITH THE COMMITTEE FOR INDUSTRIAL ORGANIZATION. Case No. C-281-Decided November 23, 1938 Shoe Manufacturing Industry-Discrimination: charges of sustained as to 80 individual discharges for union membership and as to 103 employees who were discharged for refusal to join company-dominated union after closed-shop con- tract with that union; sustained as to three refusals to reinstate union members after lay-offs; dismissed as to five individual discharges, respondent offered no explanation for abandonment of system of spreading work in force since 1933 nor for overwhelming preponderance of union members among those dis- charged-Unit Appropriate for Collective Bargaining, production and main- tenance employees, excluding office employees, foremen, foreladies, and other persons employed in a supervisory capacity ; community of interest among employees ; interests of foremen, foreladies, and ocher supervisory employees are different from and conflict with those of production and maintenance em- ployees-Representatives: proof of choice : application cards signed by a major- ity in unit produced at hearing and a list made which was introduced into evidence-Collective Bargaining* respondent refused to meet with union com- mittee, objecting to presence of discharged employees ; respondent requested list of union members to prove majority ; union refused but offered election which respondent refused ; employer's duty included duty to cooperate with union to seasonable extent to enable it to prove its majority; respondent ordered to bar- gain with union-Company-Dominated Union: domination of and interference with formation and administration; support; respondent prepared field for, by its attack on legitimate union, suggested formation of ; supervisory employees aided in formation of by anti-union statements and by aiding in circulation of its application cards; respondent signed closed-shop agreement with after a few minutes negotiation and then discharged all non-members ; disestablished, as agency for collective bargaining-Contract: respondent ordered to cease and desist giving effect to closed-shop contract with company-dominated union- Interference, Restraint, and Coercion: anti-union statements by officials and supervisory employees ; threats to close plant and manufacture shoes elsewhere on advent of union-Reinstatement Ordered: discriminatorily discharged em- ployees and employees discriminatorily refused reinstatement, dismissing, if nec- essary, newly hired employees ; if not enough work available, employees to be placed on preferential list to be offered employment as it becomes available- Bach; Pay: awarded to discharged employees and to employees who were refused reinstatement from date of discrimination to date of reinstatement or placement upon preferential list ; 12 discharged employees whose cases were dismissed by Trial Examiner but who are ordered reinstated by this Decision to receive back pay except for period from date of service of Intermediate Report to date of this Order. Mr. David C. Shaw, and Mr. Herbert 0. Eby, for the Board. Mr. Luke E. Hart, and Mr. Richard C. Hart, of St. Louis, Mo., for the respondent. 9 N. L. R. B., No. 99. 1073 1074 NATIONAL LABOR RELATIONS BOARD Mr. George Duemler, and Mr. Victor Harris, of St. Louis, Mo., for Local No. 125. Mr. Paul S. Kuelthau, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by United Shoe Workers of America, Local No. 125, herein called Local No. 125, the National Labor Relations Board, herein called the Board, by the Acting Regional Director for .the Fourteenth Region (St. Louis, Missouri) issued its complaint .dated June 18, 1937, and its amended complaint dated July 2, 1937, .against Hamilton-Brown Shoe Company, Union, Missouri, herein .called the respondent, alleging that the respondent had engaged in .and was engaging in unfair labor practices affecting commerce, with- in the meaning of Section 8 (1), (2), (3), and (5) and Section 2 ,(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and amended complaint, ac- ^companied by notices of hearing, were duly served upon the respond- ent and upon Local No. 125. With respect to the unfair labor practices the amended complaint alleged in substance that the production and maintenance employees at the respondent's Union, Missouri, plant, herein called the Hambro plant, excluding office and supervisory employees, foremen, and fore- ladies, constitute a unit appropriate for the purpose of collective bar- gaining; that on May 17, 1937, and at all times thereafter, a majority of the employees in the appropriate unit had designated Local No. 125 as their representative for the purpose of collective bargaining ; that the respondent did then refuse and has at all times since refused to bargain with Local No. 125 as the exclusive representative of all employees in the appropriate unit; that between May 1 and June 26, 1937, the respondent discharged and refused to reinstate 89 employees because of their membership and activities in Local No. 125; that the respondent dominated and interfered with the formation and admin- istration of The Commercial Shoe Workers' Organization, herein called the C. S. W. 0., and contributed financial and other support to it; that on or about June 29, 1937, the respondent, discharged 103 employees because they refused to join the C. S. W. 0.; that by the above acts and other acts the respondent has interfered with, re- -strained, and coerced its employees in the exercise of the rights -guaranteed in Section 7 of the Act. On July 7, 1937, the respondent filed its answer, denying that it was subject to the jurisdiction of the Board and that it had en- DECISIONS AND ORDERS 1075 gaged in the unfair labor practices alleged in the amended complaint. Pursuant to the notices, a hearing was held in Union, Missouri, from July 8 to 30, 1937, before William Seagle, the Trial Examiner .duly designated by the Board. The Board, the respondent, and Local No. 125 were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross- ,examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. ' At the conclusion of the Board's case, counsel for the respondent ,moved to dismiss the complaint on the ground that it was not sus- tained by the evidence. At the close of the hearing counsel for the respondent renewed that motion and moved to dismiss the complaint for lack of jurisdiction and on other grounds mentioned in the re- spondent's answer. The Trial Examiner denied those motions. His rulings are hereby affirmed. At the close of the hearing counsel for the respondent also moved to dismiss the complaint as to each of the individuals named therein. The Trial Examiner reserved ruling on this motion. At the close of the Board's case, counsel for the Board moved to Amend the complaint to add 31 names to those already listed as dis- charged on June 29, 1937. Counsel for the respondent objected to this amendment on the ground that it should have been made earlier in the hearing. He admitted, however, that he had received this list three days before and that lie and counsel for the Board had stipu- lated for the record at that time that these persons left the respond- ent's employ cn June 28, because they refused to join the C. S. W. 0. The Trial Examiner thereupon granted the motion. His ruling is hereby affirmed. During the course of the hearing counsel for the Board made notions to acid names to and delete names from the amended complaint, and made other motions for the purpose of con- forming the amended complaint to the proof.' These motions were 'During the course of the hearing , counsel for the Board neglected to amend the amended complaint to include Homer Pierce, Nora Lang , Bernice Loyd , Rissie Matthews, and Stella Their, who testified at the hearing that they had been discharged during May and June 1937 because of their membership in Local No . 125 It is evident that their omission from the complaint was an inadvertence and that the Trial Examiner and counsel for the respondent , as well as counsel for the Board , were under the impression that their names had been added to the complaint by amendment The hearing pro- ceeded, on the theory that they had been included in the complaint and in his brief filed prior to the issuance of the Intermediate Report counsel for the respondent dis- cussed the meiits of these five cases individually and did not raise the question of their being oniitted from the complaint The Trial Examiner in his Intermediate Report found all five to have been discriminatorily discharged and ordered them reinstated In his exceptions to the Intermediate Report and in his brief in support thereof , counsel for the respondent objected to the finding of the Trial Examiner with respect to the five above named on the ground that it was not supported by the evidence but took no ex- ception on the ground that they were not named in the complaint By these actions the respondent has waived any defect in the complaint s ith respect to the five persons named above and we shall treat them as if they were included in the amended com- plaint 134068-39-vol. ix-69 1076 NATIONAL LAHOIt RELATIONS BOMH) granted by the Trial Examiner. His rulings are hereby affirmed. During the course of the hearing the Trial Examiner ruled on other motions and on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On August 14, 1937, counsel for the respondent filed a brief. On October 18, 1937, the Trial Examiner filed his Intermediate Report finding that the respondent had engaged in unfair labor practices affecting commerce within the lneaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act. In his Intermediate Report the Trial Examiner ruled on the afore-mentioned motions of the respondent to dismiss the allegations of the amended complaint in regard to the individuals named therein, granting some but denying them for the most part. His rulings are affirmed and overruled ill accordance with our findings as set forth in Section III B below. On November 19, 1937, counsel for the respondent filed objections and exceptions to the Intermediate Report and on December 30, 1937, filed a brief in support thereof. The Board has considered the briefs and the exceptions to the Intermediate Report. In so far as the exceptions are inconsistent with the findings, conclusions, and order set forth below, the Board finds them to be without merit. On De- cember 15, 1937, a hearing was held before the Board in Washington, D. C., for the purpose of oral argument. The respondent and Local No. 125 were represented by counsel and participated in the hearing. On December 27, 1937, the respondent filed motions for leave to amend its answer to the amended complaint and to submit an affida- vit 2 as evidence in support thereof. On January 5, 1938, the Board denied these motions. On March 7, 1938, counsel for the respondent renewed the motions of December 27, 1937. These motions are hereby denied. On October 20, 1938, Boot and Shoe `Yorkers Union, Local No. 176, affiliated with the American Federation of Labor, filed a petition to intervene and requested that the record be reopened and further evi- dence be taken on the ground that it represented a majority of the respondent's employees on the date the petition was filed. That mo- tion is hereby denied. Since the purpose of any order which may be entered in this case will be to restore the status quo as it existed prior to the unfair labor practices, any change in the identity of the rep- resentative of the majority since that time is immaterial. 2The amended answer and affidavit recited the number of shoes blocked each week from July through December 11, 1937 DECISIONS AND ORDERS _ 1077 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Hamilton-Brown Shoe Company, Is a Missouri corporation having its principal executive office in St. Louis, Missouri. It owns and operates factories in Boonville, Columbia, Poplar Bluff, and Union, Missouri. The respondent also owns factories in St. Louis and Owensville, Missouri, and in East St. Louis, Illinois, none' of which are now in operation. The respondent is engaged in manu- facturing and jobbing men, women, and children's shoes. Eighty per cent of all materials used by the respondent in the manufacture of shoes are purchased by it outside Missouri. The respondent annually manufactures approximately 2,000,000 pairs of shoes worth! $4,000,000, 90 per cent of which are sold for delivery outside Missouri. In addition the respondent purchases approximately 500,000 pairs of slioes' worth $1,000,000 from other manufacturers. Eighty-five per cent of the shoes sold by the respondent are sold and delivered out- side Missouri. The respondent is tenth by volume among the shoe manufacturers of the United Slates. We afire here concerned only with the plant at Union, Missouri, which manufactures women's shoes and produces 30 per cent of the- shoes made by the respondent-more than any other plant. Durin- the week ending May 1, 1937, it had approximately 710 employees. II. THE ORGANIZATIONS INVOLVED United Shoe Workers of America, Local No. 125, is a labor organ- ization admitting to membership shoe workers in Union, Missouri. It was organized in May 1937, and is a local of a national'union afiliated with the Committee for Industrial Organization. The Commercial Shoe Workers' Organization of Union, Missouri, is an unaffiliated labor organization admitting to membership em- ployees at the respondent's Union, Missouri, plant. III. THE UNFAIR LABOR PRACTICES A. Chronology The dissatisfaction among the employees which resulted in the organization of Local No. 125 first became manifest in January 1937, when there was a short strike in the heel and edge department ansi in the finishing department, which was settled after C. J. Jannings, plant superintendent, consulted Luke E. Hart, president of the re- spondent, and promised a general raise throughout the plant on March 15. 1078 NATIONAL LABOR RELATI ONS BOARD Thereafter, the operation of the plant proceeded as usual until March 30, although the general raise promised for March 15 was not granted. On March 30 the employees in the heel and edge de- partment, after working all day, refused to report for work in the evening. The next morning Jannings met a committee of employ- ees which asked that the raise promised for March 15 be granted and protested against the long hours of work. Jannings, after dubbing the members of the committee troublemakers, denied that any raise had been promised but arranged for the committee to meet Luke Hart the next day. The meeting then adjourned, the remainder of the employees struck, and the plant ceased to operate. On April 1, Hart met the committee and refused to graht any raises. Thereafter, the strike continued and the plant was picketed. It is noteworthy that as yet none of the so-called outsiders, to whom the respondent later objected, had taken any part in the organization of the employees or in their strike. The strike was a spontaneous affair arranged without any formal organization among the em- ployees. On April 3, Percy Turner, general representative of United Shoe Workers of America in St. Louis, Missouri, paid a visit to Union at the request of former residents of that city then employed in St. Louis. Turner talked to Elmer Jones, the strike leader, and one of his lieutenants, Hadley Lewis, in a street near the factory and offered them his assistance in conducting the strike. On April 5,. at Jones' invitation, Turner addressed a meeting of the strikers at the Farmers' Exchange in Union. The same day Raymond Gard- ner, Clarence Stuckenschneider, and Leonard Williams conferred with Jannings in regard to the reopening of the factory. On April 6, Hart and Jannings addressed a meeting of the re- spondent's employees in the courthouse. At this meeting, which was arranged by Helen Martin, an employee in the respondent's office in Union, her husband, Bunyan Martin, and Raymond Gardner, Hart announced that it looked like a prosperous year for the respondent but that no raises could be granted. He urged his listeners to return to work and stated that if the strike was not settled and the em- ployees did not return to work, the respondent would abandon its Union plant and manufacture the shoes elsewhere. Hart also an- nounced that the plant would open the next morning for those who wished to return to work. Jannings spoke and denounced outside interference with the employees of the respondent, stating that the employees did not need people from St. Louis to organize a union but that there were people in Union who could do it. It is note- worthy that as yet no union was involved and that Turner had made no attempt to recruit members for his organization: Among those present at the April 6 meeting was one Ludy Niebruegge, who had DECISIONS AND ORDERS 1079 just returned to town after a lengthy absence and who later was very active in the organization of the C. S. W. O. On April 7, the plant opened. A crowd of strikers attempted to block the doors but deputy sheriffs kept a passage open and a, few people returned to work. Among those who went in was a future member of Local No. 125, Rachel Vincent. She testified as follows : Q. (By Mr. Shaw.) Did you work at your regular job when you went in during the strike? A. I sat around. Q. What were yoiu• instructions when you went in during the strike? ' A. My foreman came to me that morning and said, "Mrs. Vin- cent, you don't have to do anything, you can sit around here, you can bring in a book this afternoon, we don't care whether you work, you get your time anyway." Q. Were you a piece worker? A. Yes, sir. Q. During the strike how were you paid? A. I was paid by the hour. * * * * * * Q. Were you given any instructions as to-' during this time you were ' in there during the strike, what `jobs did you hold other than what you have just told us? A. What do you mean? Q. Were you told to do anything else except sit there? A. Well, we could just do as we pleased. If we wanted to play cards it was all right, we could do anything like that. Q. Were you given any instructions about attempting to get other workers to come back in to work? A. Mr. Rowland came in one morning, and he came over to me, and he said, "Mrs. Vincent, I am new in this plant, I don't know anybody here, much, but I think people are simple here for staying out when they have homes to protect and people to feed. They won't be working very long if they stay out. It will be hard for them to get jobs anywhere else because they will be counted as troublemakers." Q. When did Mr. Rowland tell you that? A. He told me that on a Wednesday. He told me if I was interested in my family I had better come in because I would need my bread and butter, and if I didn't I wouldn't have a job, and lie said I should encourage others to come in, too, so that they could get enough in the shop to run the work and let those that don't want to work stay on the oiitside. Also on April 7, the respondent filed in the Circuit Court of Franklin County, Missouri, a petition for a temporary and perma- 1080 NATION 'At, LABOR RELATIONS BOARD dent injunction against the picketing activities of the strikers. The petition named as defendants 20 persons whom the respondent thought were the leaders of what is called an "unlawful conspiracy." The same evening Father Schane, a priest from Fort Hudson, Missouri, addressed the strikers at a meeting in the courthouse. He urged them to return to work, pleading that the community needed a shoe factory. When the negotiating committee pointed out that they were unable to secure any offer from Hart for the termina- tion of the strike and that he had rejected their proposals, Father Shane volunteered to negotiate with Hart. The negotiations were carried on the same evening while the strikers waited in the .courthouse. Father Schane returned and informed the assemblage .that Hart was willing to reinstate them but that he refused to deal with their committee. The meeting rejected the terms and -voted to remain on strike. Immediately thereafter the sheriff served notices to take depositions in the injunction suit on the strike leaders. On April 8, 1937, a temporary restraining order which drastically ;limited picketing at the respondent's plant was issued by the Circuit 'Court of Franklin County without a hearing and solely on the ,basis of the respondent's petition. On April 12, the day before the notices to take depositions were returnable, the defendants in the injunction proceeding held a meet- ing at William Gerling's home adjacent to the factory. The sheriff sought to prevent attendance at that meeting by standing in front of the house and warning those who attended that they were violat- ing the temporary restraining order. After the meeting started, the sheriff did not abandon his vigil but remained near the house. The windows were open but the shades were drawn and when, during the evening, Laura Branson raised the shade, the sheriff was standing on the lawn next to the open window, apparently, listening to what was said at the conference. On April 13, before the time set for taking depositions, James Neher, a manufacturer of ice cream in Union and a member of the Industrial Committee of the Chamber of Commerce, met with the -strike committee to induce them to abandon the strike. The com- -mittee authorized Neher to secure terms from Hart. After consult- =ing Hart, Neher returned with an offer to reinstate all strikers, drop the injunction proceedings, and consider the individual grievances of -the strikers after they returned to work. Neher, reminding the com- mittee that other employees were returning to work and pointing to an agreement not to feed strikers which he said the merchants of Washington, Missouri, had with a factory there, urged the accept- ance of Hart's terms. The committee capitulated and the strikers returned to work the next day. Among those employed after the DECISIONS AND ORDERS 1081 strike was Marian Niebruegge, a new employee and the wife of Ludy Niebruegge. After, ,their return to work, many employees began exploring the possibility of forming a more effective organization among the em- ployees. On May 1, 16 of them went to St. Louis, signed applica- tions for membership in United Shoe Workers of America, and ap- plied for a charter for a local in Union. They made no secret of their activities and immediately started circulating application cards among the respondent's employees. The discharges with which we are here concerned began at once and in the ensuing weeks 179 members of Local No. 125 were discharged. These discharges will be discussed further below. By May 17, Local No. 125 had enrolled a majority of the respond- ent's employees; on that day Percy Turner called Hart in St. Louis and asked foi an appointment for a Local No. 125 bargaining coin- mittee consisting of himself, Elmer Jones, Perry Nappier, Herman Kinkeade, Guy Shafferkoetter, and Leo Koester. Hart objected to the committee on the ground that none of them were employees of the respondent., He also questioned Turner's claim of majority rep- resentation and requested a list of Local No. 125 members as proof of the claim. Turner refused to submit a membership list because of the wholesale discharges which were taking place in the plant but offered to prove their majority in a consent election. Hart refused to meet the committee unless a membership list was submitted. On May 28 counsel for Local No. 125 wrote to the respondent stat- ing that Local No. 125 represented a majority of the respondent's employees, and requested the respondent to bargain with its com- mittee. Hart, replying by a letter dated June 1, again refused to consider the request unless Local No. 125 submitted a list of its members. On June 1 so-called loyalty cards made their appearance in the plant. Ludy Niebruegge testified that he, Raymond Gardner, and a few employees of the respondent were considering the formation of an independent union and that they circulated the loyalty cards to determine whether or not Local No. 125 had enrolled a majority. The loyalty card reads : I, the undersigned, am not interested in a Shoe Workers Union, for the Hambro Factory, sponso.ed and controlled by men living -outside of Union, Mo. I want to continue working in the Ham- bro Factory. If, in the future, questions should arise concerning wages and hours of 'labor, I would prefer the questions being settled by men and women who are employees of the Hambro Factory. Signed ------------------------ *Jones, Nappier, Kinkeade, Shafferkoetter , and Koester had been discharged on May 3. 1082 NATIONAL LABOR I.];L1'L'IONS BOARD The expense of printing the loyalty cards was charged to Raymond Gardner. They were passed out in the plant during working hours by Raymond Gardner, Violet Gardner, Ray Copeland, Rose Rogers, Walter Shockley, Mae Shockley, and other employees of the respond- ent, materially assisted by statements hostile to Local No. 125 by foremen and foreladies and, actual solicitation by such supervisors. The Franklin County Tribune, also joined in the campaign. Articles and letters were printed attacking outside unions and pointing out that work scheduled- for the Hambro plant, was being clone at the respondent's other plants. After being signed, the loyalty cards were returned to Gardner who deposited them in a safe deposit box rented for that purpose from the local bank. On June 12 Gardner, George Brown,' W alter Shock- ley, and - Clarence Stuckenschneider, employees at - Hambro, took August Meyer, Hambro office manager, to the bank and together they prepared a list of the signers which was retained by Meyer. Having secured signatures to many loyalty cards, with the assist- ance of the ' foremen and foreladies, and as a- result of the respond- ent's current activity in, discharging members of Local No. 125, Niebruegge and his associates felt that they were in a position to organize an independent union. On the night of June 22', they met at Niebruegge's home in Union. Niebruegge produced carols on which a committee of: 11 was named to represent the employees in bargain- ing with the respondent. A supply of these cards was given to each member of the committee and each was instructed to circulate them, among the employees for signature. That night and the next morn- ing the committee did its work; by 8 a. m. the next day it claimed 200 members. In circulating these cards the members of the com- mittee largely confined themselves to signers of loyalty cards. At 8 a. m. on June 23 the committee called on Jannings, informing him that they were going to organize the plant and requesting a conference with Hart on Saturday, June 26. Jannings' reply, in contrast to the discharges with which he greeted the organization of Local No. 125, was "Well, I can't stop you." Although at that time Gardner made no claim of majority representation, Jannings made an appointment for the committee to meet Hart on Saturday. On June 23 and 24 the committee completed the circulation of the cards during and after working hours. Meanwhile Niebruegge ar- ranged a mass meeting for the night of June 24, at which,he invited Attorney Bried, Mayor Jenny, and Superintendent of Schools Cole to speak. A handbill was circulated to advertise the meeting. At the meeting, Jenny explained the National Labor Relations Act; Bried explained the difference between an independent organization and the Committee for Industrial Organization, emphasizing the damaging effect of the latter on industry; Cole gave an "inspirational, DECISIONS AND ORDERS 1083 address", to give confidence to the members that they were right morally and that their purposes were legitimate and altruistic." At the conclusion of the meeting Niebruegge, who had. been acting as chairmt.n, predicted that "before the sun sets twice this committee will be recognized as the sole collective bargaining agency for the employees of this factory." Niebruegge proved an excellent oracle. Although the committee's appointment with Hart was set for June 26, Luke Hart and his brother, Richard Hart, appeared at the plant on the morning of June 25 and the committee was called into the office to see them. Gardner acted as spokesman and informed the Harts that the coin- mittee represented a majority of the employees and wanted to be recognized as their bargaining agent. Hart asked what kind of con- tract they wanted. Gardner replied, "A contract of liberal hours, a closed shop, and wage dispute." The two Harts then repaired to a corner to discuss the proposition. After a few minutes they returned and, after a short discussion with the committee, agreed to sign - a closed-shop contract. Hart did not question the committee's majority and dictated the contract himself. Before the contract was drawn, it was necessary to select a name for the new organization and, after a short conference, the -committee selected The Commercial Shoe Workers Organization of Union, Missouri. Although the committee wanted provisions in the contract in regard to wages and hours, the contract dealt only with recognition of the C. S. W. O. and the closed shop. It was formally signed on the following Monday, June 28. After Hart and the C. S. W. O. committee agreed on the closed- shop contract on June 25, the Franklin County Tribune published an extra edition announcing the closed shop and distributed it free to the employees of the respondent and the citizens of Union. Ludy Niebruegge testified that he was largely responsible for the extra paper and that the Tribune started to set the type for it as soon as Hart arrived in town on June 25. The paper appeared on the streets about 5 o'clock the same day. On June 28 the respondent circulated the following notice among ,the employees in the plant : The Hamilton-Brown Shoe Company has signed a contract agreeing to recognize the Commercial Shoe Workers' Organiza- tion as its (sic) exclusive bargaining agent with the employees of the Hambro plant, and agreeing to operate the plant as a closed shop. Therefore, employees who are not ,members of the organization -will not be able to work here, starting Tuesday, June 29, 1937. 1084 NATIONAL LABOR 1tb:7,Ar1ONS BOARD Because of the above notice, approximately 99 employees did not return to work on June 29. On June 30 Niebruegge conferred with Hart in St. Louis. Nie- bruegge testified that he went to St. Louis to ask Hart if there was any objection to his working at Hambro. Hart replied in the negative and on July 1 Jennings selected Niebruegge from a group of appli- cants, ostensibly because he had a high-school education, and put him to work at sole laying in the plant. B. The discharges The discharges with which we are concerned in this proceeding began on April 29 and continued until June 26, 1937. During that period, 179 Local No. 125 members and 66 other employees were laid off or discharged. It is noteworthy that on May 17, 1937, slightly more than half of the respondent's employees belonged to Local No. 125. The respondent contends that this reduction in force was neces- sary because of business conditions. The evidence does not, substan- tiate that claim. ' It shows that, although production fell off, there were more pairs of shoes packed in May and June 1937 than had been packed during the previous slack season, November and Decem- ber 1936, when almost all of the employees discharged in May and June were working.4 Since 1933, the custom in the Hambro plant had been to have the employees share the available work during slack seasons by arrange- ment among themselves and with their respective foremen. Under that system, which was known in the plant as "taking turns about," an employee would work for 2 or 3 days or a week, and then be off for an equivalent period while another employee worked. Although the system of taking turns had worked satisfactorily since 1933, it was suddenly abandoned in May 1937, and members of Local No. 125 of many years standing in the plant were discharged while, many non-members with shorter tenure were retained. It is clear that the respondent abandoned the system of taking turns in order to, eliminate members of Local No. 125. The evidence shows that the respondent had no seniority policy which it followed in its lay-offs during slack seasons. In making the 4 The following table shows the number of shoes packed each month from July 1936 through June 1937 1936 1937 Jul v____________________ 6'1,847 January---------------- 77,037 August -------- 89, 347 February--------------- 86, 639 September--------------- 92, 772 March---------- ------- 100, 495 October_________________ 81, 732 April _________-_ ------------------ 45,209 November ---------------- 37,452 May------------------- 68, 672 necembe----------------- 42, 755 June------------------- 46,234 DECISTONS AND ORDERS 1085 lay-offs and discharges here in question , bosh old and new employees were laid off and discharged. The respondent offered no explanation, of its method of selection and the preponderance of Local No. 125 mem- bers laid off and discharged, together with the statements of foremeni to those employees at the time of their respective lay-offs and dis- charges, points to the conclusion that membership or non -membership, in Local No. 125 was the chief criterion used. The laying off or dis- charging of non-members of Local No . 125 and the retention of certain, Local No. 125 members in the plant does not negative this conclusion but indicates that, when the respondent abandoned the system of tak- ing turns, it found it necessary to eliminate certain non -members of- Local No. 125 and to retain certain members in order to operate its. plant. Furthermore, the complete elimination of Local No. 125 mein-- bers was not necessary to accomplish the desired result of breaking up. Local No. 125. -Membership in Local No:125 was an open secret in the plant. Those- who had been active in the April strike were also leaders in the nmove- ment for the organization of Local No . 125. Since Union, Missouri, is a smnall town , it would have been difficult to conceal membership in Local No. 125 and, for the most part, there was no attempt to do so. For its information in regard to Local No. 125 membership, the re- spondent depended on the foremen in the plant who did the discharg- ing, and on the employees who were "loyal" to them . After June 12' the respondent had the further advantage of knowing who had signed loyalty cards. It is clear from all the evidence that the respondent knew fairly ac- curately who was a member of Local No. 125 and who was not. (1) Local No. 125 leaders On May 3, Elmer Jones, Leo Koester, and Herman Kinkeade, front the heel and edge department, Hadley Lewis, and Perry. Nappier, from the finishing department. and Guy Shafferkoetter, who divided his time between those two departments , were discharged. All were employees of long standing and had worked through the slack period in November and December 1936. All except Kinkeade had gone to St. Louis on May 1 to apply for a charter for Local No. 125; all were prom- inent in the April strike and leaders of Local No. 125. At about 4 o'clock on the afternoon of May 3, their respective foremen told them that C. J. Jannings, factory superintendent, wanted to see them . Jones- and Koester went together to his office and were discharged without explanation . Kinkeade and Nappier received the same treatment.. Jannings told Shafferkoetter that he was discharged "for the benefit of the factory and the community " and Lewis "for the benefit of the- community and the Hamilton , Brown Shoe Company." All six met 1086 NATIONAL L_1BOt: I;L:LATIONS BOARD in the Hambro office after their discharge and decided to return for an explanation from Jannings. August Meyer, the office manager, re- fused to permit them to return to Jannings but offered to ask him why they had been discharged. He returned with the report that all were discharged for the same reason-"tile good of the community and the Hamilton, Brown Shoe Company." At the hearing the respondent contended that these employees were discharged for inefficiency and for misbehaving in the plant in De- cember 1936. That contention is not supported by the evidence. C. J. Jannings, who personally discharged all six, did not testify. However, both William Dittman, foreman of the finishing room, and George Kreft, heel and edge department foreman, admitted on cross-examina- tion that all six were discharged because they were ringleaders in the agitation for higher wages and because the respondent feared another strike. Dittman and Kreft testified that the respondent sought to break up the movement by the discharge of the ringleaders. Kreft testified as follows : A. Just like I stated awhile ago, trouble occurred in there before. Q. What were you afraid of, another strike? A. Just trouble, that is all I can tell you. Q. Well, what kind of trouble? A. Well, strike, I guess. Q. That was the only trouble, wasn't it, labor trouble? A. Well, I wouldn't say labor trouble, I said strike. Q. Well, a strike is labor trouble, isn't it? A. I don't know. Q. Well, did you think by this striking, these people, you would get rid of the possibility of a strike by discharging them? A. We thought if we could get rid of the men we would have our trouble over with. Dittman testified in a similar vein : Q. As a matter of fact, Shafferkoetter and Lewis were the ringleaders, weren't they? A. Yes, sir. Q. They were. And you thought if you discharged them you would get rid of this trouble? A. Yes, sir. Q. And the trouble you were afraid of was another strike, or some labor trouble? A:' Yes, sir. Q.• Agitation for higher" wages, something' like that? A. Yes, sir. DECISIONS AND ORDERS 1087 Q. And you thought if- you got rid of these ringleaders that you would bust that up, is that the idea? A. Yes, sir. The above testimony shows that the six leaders were discharged because the respondent recognized their potentialities as leaders of the employees and hoped in this way to nip the incipient movement in the bud. We find that the respondent discharged Elmer Jones, Leo Koester, Herman Kinkeade, Guy Shafferkoetter, Hadley Lewis, and Perry Nappier because they joined and assisted Local No. 125. On June 18, Guy Shafferkoetter started work as an extra laborer for the Witthaus Clay Company. He was working there at the time of the hearing. After being discharged, Perry Nappier earned $8.20 digging'a ditch, and'Leo Koester $5 working on a farm. (2) The cutting department ` From May 1 to June -26, 1937, 40 persons, 33 of whom belonged to Local No. 125, were laid off or discharged in the cutting depart- ment. Of the 25 persons in that department named in the complaint as amended, 14 worked throughout the month of November 1936. In each week of November 1936 fewer shoes were being made than during all but one of the weeks of May and June 1937.6 In Novem- ber 1936, there were 122 employees in the cutting department, only 12 of whom were laid off during the month; while of the 115 em- ployees in the cutting department in May 1937, 40 were laid off dur- ing May and June. It is thus apparent that -the respondent had a smaller working force during May and June 1937 that it ' had in November 1936. This differential no doubt occurred because of the discontinuance of the practice of taking turns in May 1937. Harry Brueck, the foreman of the cutting department, testified that the system of taking turns was used only when there was a slight slackening of work and that it was not used in May and June 1937 because there was so little work to be done. The falsity of that statement is apparent from the figures quoted in the margin. Brueck further testified that at the time of the hearing he had hired 40 new employees who had never worked in the factory before, without recalling the members of Local No. 125 who had been told they would be recalled when work was available. It is apparent from the high proportion of Local No. 125 6 The following table shows the number of pairs of shoes being made in the plant dining each week of November 1936 and during each week of May and June 1937: 19.46 19.17 19.47 November 7----- 4, 899 May 8_________ 8, 509 'June 5_________ 7, 338 November 14____ 4, 536 May 15 -------- 4,356 June 12 ------- 11, 492 November 21____ 4, 247 May 22________ 10, 743 June 19 ------- 9, 423 November 28 __-_ 4, 562 May 29________ 16, 400 June 26_______ 15, 521 1088 NATIONA L LABOR RELAT1OIS BOARD members discharged , as shown above , that the respondent , by aban- doning the system of taking turns, was seeking to rid itself of Local No. 125 members. We shall now proceed to a discussion of the indi- vidual cases in the cutting department. Maned Rowden had been working for the respondent intermittent- ly in various departments since 1928. His last period of employment began when he was hired to cut straps in December 1936. On May 1, 1937, Rowden joined Local No. 125 and on May 4 he was dis- ,charged. Ray Walker and Henry Pickels, both of whom started to work for the respondent during the week ending March 6, 1937, and neither of whom belong to Local No . 125 at the time of Rowden 's discharge, worked with Rowden, at cutting straps and both were retained upon his discharge. Rowden was laid off by Brueck, who told him he was laid off until the trouble was over. The only trouble extant ill the plant at that time was that occasioned by the opposition of the re- spondent to Local No. 125. We find that the respondent discharged Mancel Rowden because of his membership in Local No. 125. Rowden earned $18 after his discharge but was not working at the time of the hearing. George Peirick had been employed in the cutting department by the respondent. continuously since January 1929 . He joined Local No. 125 just before noon oil May 4 "in the street outside of the plant" and was discharged -immediately after noon the same day. Although Peirick testified that the last day he worked in the plant was Saturday, May 1 , the respondent's pay roll shows that he earned $4.70 in the week ending May 8, which amount Peirick testified that he earned the last 2 days he worked. George Peirick is the brother of Oscar Peirick, a charter member ,of Local No. 125 and a defendant in the injunction suit, and of Lucy and Helen Peirick whose discharges will be discussed below. The Peirick family was active during the April strike and remained out for its duration. - George Peirick testified that at the time of his discharge he was the oldest man, in point of service, working at cutting quarter lin- ings. He had worked through the slack period of November 1936 with the exception of 1 week. When Peirick came into the plant -on the afternoon of May 4, Brueck met him and told him that there -was no work and that he was discharged . There were 12 or 15 other employees doing the same type of work and all of them had been taking turns. When Peirick returned on May 6 for his check, Brueck ordered him from the plant and then remarked to Jess Crews, an employee of long standing, "What is little Georgie trying to do, Crews, sign them up again?" DECISIONS AND ORDERS 1089 Peiriek had been laid off for a week in December 1936 for cutting some leather wrong and the respondent contends that this fact shows he was the least efficient workman among the quarter lining cutters and should have been laid off when there was less work. However, there was more work in May 1937 than there had been in November 1936, and Peirick was not laid off at that time. It is clear from Brueck's remark to Crews that Peirick's activities in Local No. 125 were the motive behind his discharge and that he would have re- manied on the pay roll taking turns with the other employees except for, those activities. We therefore find that the respondent dis- charged George Peirick because of his membership in Local No. 125. After his discharge George Peirick earned $7 shocking wheat but was not employed at the time of the hearing. Lucy Peirick, George Peirick's sister, started work for the respond- ent in the cutting room in February 1932. After her first year in the plant she worked steadily, taking turns with the other employees when necessary until November 24, 1936, when she quit because the piece rate on her type of work had been reduced. She was reem- ployed on January 21, 1937, and worked, except for the April strike period,,until May 5, 1937, when she was laid off and told she would be called when work came in. Lucy Peirick did not join Local No. 125 until May 23. At, the time of her lay-off, Lucy I'eitick and Clara Lindeman, who was not a member of Local No. 125 and does not appear to have been active in the April strike, were working on cut-outs. On May 26 Lucy Peirick returned to the plant and talked to Brueck. He told her that he then had plenty of people to do the work and that he had hired some other girls-who had come in when he needed them. Lucy Peirick ..was especially active during the April strike. She was at the plant on April 7 and was one of those standing near the doors and calling workers who went in "scabs." Her brother was a defendant in the injunction proceeding and counsel for the respond- ent suggested at the hearing that Lucy Peirick should also have been included. There is no doubt that Lucy Peirick was a marked woman because of the activities of her brothers, George and Oscar, and be- cause of her own activities during the April strike. Although she was not a member of Local No. 125 at the time of her discharge, she was marked,as a member because of her associations and her activi- ties during the April strike. The respondent's information on mem- bers of Local No. 125 was incomplete and not altogether reliable at the time of her discharge, since the loyalty cards were not yet avail- able as a guide. In selecting persons for discharge, the respondent marked those who had been active during the April strike as mem- bers of Local No. 125. We shall not withhold our protection from Lucy Peirick, who was obviously discharged because the respondent 1090 NATIONAL LABOR RELATIONS BOARD thought she belonged to Local No. 125, because the'respondent hap pened to be mistaken. We therefore find that Lucy Peirick was dis- charged on May 5 because of her own activities for the purpose of collective bargaining and the membership and activities of other members of her family. in Local No. 125. Lucy Peirick earned $20 as a waitress in a restaurant after her discharge but was not employed at the time of the hearing. Lillian Brinkman and Laura Halley were working at reinforcing at the time of their discharge on May 5, 1937. Brinkman started to work for the respondent in June 1936, was laid off for October, November, and December, and was reemployed on January 4, 1937. She was out during the April strike and joined Local No. 125 on May 3, 1937. Halley was first employed by the respondent in July 1927, and worked steadily, except for taking turns and the April 1937 strike period, until her lay-off on May 5, 1937. She joined Local No. 125 on' May 1. Brinkman and Halley were the only reinforcers to remain out the duration of the April strike and to belong to Local No. 125 on May 5. Board Exhibit No. 22-H shows that all other reinforcers except Esther Mittendorf, who was the last one hired, were retained after Brinkman and Halley were discharged. On May 12 Brinkman returned to the factory to see about re- employment. Viola Copeland told her to see Brueck. Thereafter Brinkman saw Brueck at his home. He said that he could not put her back to work and added, "Your work was perfect but those there working now helped us and of course we will have to help them." It is clear from all the evidence that the usual custom of taking turns during slack periods was not followed and that those rein- forcers who had not returned before the end of the April strike were laid off. No reason was assigned by the respondent for the selection of Brinkman and Halley, and Brueck's statement to Brinkman. al- though denied by him, is similar to statements attributed to Brueck and other supervisory employees by other employees. It is appar- ent that Brinkman and Halley were selected for discharge because of their activities during the April strike and their membership in Local No. 125. We therefore find that the respondent discharged Lillian Brink- man and Laura Halley because of their membership in Local No. 125. Edna Rogers and Edna Rowden worked at machine tracing in the cutting department until their discharge 'on May 6, 193 7 . Of the six women employed at machine tracing, Rogers, Rowden, and Verna Fechtler Were-members of Local No'. 125 and had not worked during the April strike; Laura Lindeman, Florence Aytes, and' Gladys Mittenlorf were not inembers and had returned to work before the DECISIONS AND ORDERS 1091 end of the April strike. Rogers and Rowden were the only ones- discharged on May 6, although the others were temporarily laid off.. Lindeman, Mittendorf, and Fechtler were recalled almost imme- diately, while Aytes returned to work after a week. It is evident from the above that the respondent departed from its usual custom of taking turns during slack periods. In doing so,- and in selecting the persons to be laid off, Brueck's policy as before described of giving work to those who had helped the respondent during the April strike and who had not joined Local No. 125 was adopted. The fact that Verna Fechtler, a member of Local No. 125,_ was retained does not negative this conclusion since the respondent's. information as to Local No. 125's membership was as yet imperfect and her membership in Local No. 125 was not known even to Edna Rogers, who testified that Fechtler was not a member. We therefore find that the respondent discharged Edna Rowden _ and Edna Rogers on May 6, 1937, because of their membership in_ Local No. 125. The doublers. On May 6 there were 11 doublers employed in the- factory, 1 of whom, Grace Copeland, was in charge of the distribu- tion of work among them. All 11 except Stella Thien had worked through the slack period in November 1936. Thien had been work- ing in the fitting department in' the fall of 1936 and had been laid off during the last week in October. She was rehired as a doubler in February 1937. Allie Meade, Dorothy Hobelman, Sylvia Nations, Stella Thien, Ida Hoerath, Annie Jett, and Mayme Zumwalt had remained out for the- duration of the April strike while the other doublers, Grace Cope- land, Annie Eilers, Elzena Gordon, and Polly Grinnip, had returned before the strike ended. On April 14, the day the strike ended, Grace Copeland told Allie Meade that her orders were, in case of slackness of work, to give work to the doublers who had worked- during the strike. On April 16, Stella Thien heard Brueck remind. Viola Copeland, the floorgirl, of similar instructions which had been given to her. On May 6 the doublers who had not worked during the- strike were laid off. All of them except Ida Hoerath, who joined on May 10, were then members of Local No. 125. Although Stella Thien testified that all doublers were laid off that day, Allie Meade testified that she saw Grinnip, Eilers, and Gordon going into the.factory to work on May 7.6 After leaving the plant on May 6, Allie Meade returned and, on seeing Brueck, asked him why they had been dis- charged. Brueck replied, "Let the union, give you girls a job." The following week the respondent evidently realized it could not get along with so few doublers, and Ida Hoerath, Annie Jett, and Board Exhibit No. 22-H , which shows no lay-off lasting I less than a' calendar week, reveals no break in the employment of Grinnip , Ellers, and Gorden 134065-P,9-vof ix-70 1092 NATIONAL LABOR ia'.i_vrtoIs BOARD Mayme Zumwalt were recalled. They worked from May 11 or 12 until May 19 when they were again laid off. The following week, the respondent again found itself in need of doublers. Instead of recalling those laid off, it hired Lena Wideman and Wilma Klingsick, who had worked in the cutting room from January 23, 1937, until the week ending May 1, 1937. Klingsick is .classed as a skiver on Board Exhibit No. 38-A but the testimony shows that she worked at doubling after her return. Wideman was a member of Local No. 125 but that fact does not negative the discrim- i3iat.ion charge since the respondent's information as to Local No. 125 membership was defective. It is significant that during this period, those doublers who had worked during the strike and had not joined Local No. 125 were not laid off for more than a day or two although they had not worked for the respondent any longer than, if as long as, those who were discharged. On July 1 Dorothy Hobelman returned to the factory to apply for work. She was standing with a group of women at the entrance to the cutting department when Brueck approached. She testified as follows: A. . . . He asked me if I had joined the C. I. 0. I told him I had. Q. You stated that you had? A. I told him I had, and he told me to go down to Mr. Jaiming's office, and tell Mr . Jannings that I had been dragged into it, and that I wished to discontinue it. And he told me that had to be on the level with him. When Hobelman went to see Jannings , he asked if she had "turned in a statement" that she had been laid off because of Local No: 125'. Upon Hobelman's admission that she had, Jannings told her that he would investigate and that she should return the following Monday, July 5. When Hobelman returned on July 5, Jannings informed her that Brueck had hired all the girls he needed on July 1. Board Exhibit No. 38-A shows that three doublers were hired during the week ending July 3. Considering all of the evidence, it is apparent that the respondent discharged the doublers who had been active in the April strike and who had joined Local No. 125 while retaining in its employ others whom it deemed to be less likely to aid or to participate in an organ- ization of its employees . In addition , other former employees and some new employees were hired to do the work of those discharged. We therefore find that the respondent discharged Allie Meade, Doro- thy Hobelman , Sylvia Nations, and Stella Thien on May 6, and Ida Hoerath , Annie Jett, and Mayme Zumwalt on May 14, because of their membership in Local No. 125. DECISIONS AND OIt11EHS 1093 Elmer Olten started work for the respondent in 1929. Except for approximately six months at hand cutting when he started to work, ,Olten was employed continuously at machine cutting. During that time he had never been laid off but had taken turns with other cutters during slack periods. Olten was a charter member and vice president of Local No. 125. He was also one of the best machine cutters employed by the re- spondent. On May 11 Brueck complimented him on his work and expressed a wish for 50 cutters as -proficient. The same day Olten asked Clyde Williams, a nonunion back shoe cutter, Nihat he thought of Local No. 125. On May 12 as Olten was leaving the plant after being told,by Wel- shons, the assistant foreman, to return the following day at 9: 30, Brueck told hini to stay home until he was called. Olten asked if he was indefinitely laid off or discharged, and Brueck replied, "I can't tell you a damned thing." Olten had not been called back at the time of the hearing. The respondent employed 21 cutters during the week ending May 15, 7 of whom belong to Local No. 125. During May and June, 4 cutters, all of whom belonged to Local No. 125, were laid off. During that period no other cutters were laid off, and one neiv cutter wits hired during the week ending July 3, without recalling any of the Local No. 125 cutters who had been laid off. Although the respond- ent contends that lack of work occasioned Olten's discharge, that con- tention is untenable in view of the obvious discrimination against members of Local No. 125 as shown by the record of lay-offs set forth above. We therefore find that the respondent discharged Elmer Olten because of his membership in Local No. 125. At the time of the hearing, Olten was employed by the Pedigo Shoe Company in St. Louis where he had earned $150. Olten owns a home in Union and expressed a desire to return to the Hambro plant. Sylvia Strickler has' worked for the respondent intermittently since 1914. Her last period of employment, at skiving in the cutting room, began on July 29, 1936. She had been active during the April strike and was named as one of the defendants in the injunction proceed- ing. On April 8 Strickler was among the employees who congre- gated at the doors of the plant, where she talked with C. J. Jannings, the superintendent, who was standing in the doorway. Her testi- mony in regard to that follows : A. Well, lie asked me what I was so hot about, that I didn't have any chance to get a job back in there anymore, and I told him that-or asked hun if he had a lifetime job there. Q. Did he reply to that? A. Yes, sir, lie said, "I most certainly have." 1094 NATIONAL LABOR RELATIONS BOARD Q. Was there any further conversation with Mr. Jannings at that time , anything else he said? A. And I said, "You talk like you think you will live forever." And he said, "Well, I will see that you don't get no job here anymore anyway." In spite of the above conversation , Strickler was reinstated at the conclusion of the strike . However, her reinstatement was short- lived. On May 5 she joined Local No. 125 and on May 12 she was discharged , ostensibly because of lack of work . Although Strickler testified that all other skivers had worked longer at skiving than she had, Board Exhibit No . 22-H shows that she had worked during November and December 1936, when there was less work to be done in the cutting room than in May and June 1937. Here again the respondent abandoned its customary policy of allowing the employees to take turns in order to rid itself of an employee who was active in Local No. 125 . Strickler had par- ticipated in the April strike and was one of the defendants in the injunction suit. She had thus shown her colors before the organ- ization of Local No. 125 and was marked by the respondent as an undesirable employee because of her sympathy with the collective activity of its employees . It is noteworthy that although three new ,skivers were hired during the week , ending July 3, Strickler was not recalled. -Upon , all the evidence, we find that the respondent discharged Sylvia Strickler because ,of her membership in Local No. 125. Donald Lowden had been employed by the respondent at cutting linings since 1934 or 1935. He had not been laid off during November 1936. On May 13, 1937, Brueck, saying that he would call Rowden when work came in, laid him off. Rowden had not worked during the April strike and had joined Local No. 125 on May 3. At the time of Rowden's lay-off there were four other men work- ing at the same job, three of whom had worked during the April strike and had not joined Local No. 125. The fourth man, a member of Local No . 125, was discharged on June 28 , 1937. The respondent abandoned its system of taking turns, discharging Bowden because of slack work , and offered no explanation for its selection of him for discharge . We therefore find that the respondent discharged Donald Rowden because of his membership in Local No. 125. Rowden earned $16.50 cutting linings at Pedigo Shoe Company in St. Louis after his discharge . He was unemployed at the time of the hearing. August Goers' last period of employment with the respondent began when he was hired to do sorting in 1929. Of- the three men regularly employed at sorting , Goers was the last one hired. The DECISIONS AND ORDERS 1095 custom at this job, as at the others in the plant, was to take turns during slack seasons. That- custom was not observed in 1937 and Goers was laid off on May 13. Goers participated in the April strike. After his discharge, Goers was informed by Ed Peirick, a cutter of trial shoes and the extra sorter employed during rush periods, that he had taken over Goers' job. Peirick was not a member of Local No. 125. Of the other two regular sorters, one belonged to Local No. 125 and one did not. The retention of the Local No. 125 member, does not indicate, as the re- spondent contends, that the respondent did not discriminate against Goers. The respondent was limited by the exigencies of production and could not discharge all Local No. 125 members and operate its plant. Goers testified that he occasionally talked about Local No. 125 in the plant. The respondent's claim that Goers was inclined to argue with his foreman is unconvincing since the only example of such conduct referred to by the respondent occurred before 1928. Considering all of the evidence, we find that the respondent dis- charged August Goers because of his membership and activities in Local No. 125. Jesse Crews started work for the respondent in 1929 and there was no interruption in his employment until his discharge on May 18, 1937. On May 10 or 12, 1937, Jannings called Crews to his office. That conference, which was also attended by Brueck, was described by Crews at the hearing as follows : A. Well, the foreman carne up to me and told me Mr. Jannings wanted to see me down in his office. And I says, "All right, sir." I went down, Mr. Jannings said-lie spoke to me-and I spoke to him. And he handed me a cigarette, and we smoked. He said he had a problem to solve, and wanted to have a heart to heart talk with me. Q. Was this in Mr. Jannings' office? A. Yes, sir. Q. Was the door closed? A. Yes, sir, he locked the door. Q. He locked the door as soon as you came in? A. Yes, sir. Q. Proceed. A. And I told him, "All right." I says, "I am always glad to talk." And he asked me hoiv I stood about this union situation, and what I thought'about the rest of, the boys. So, I told him I thought every was-it was a free country-every man should use his own judgment- about thiit, 'and it was nothing to ,me. Well, he said, "the idea of the • thing is,t you are not .getting , at 1096 NATIONAL LABOR HELATTONS BOARD what I am talking about." He says, "How do you feel towards: it?" I says, "-That is for me to know." So, he says, "How is it every time I come through the room since this strike-it seems you played an active part-I always see six or eight men around your machine in conference?" I says, "That has always been cus- tomary, I know everybody and they always talk to me." Well, he says, "What I want you to do is when these men approach you about this union, tell them they are all wet, have nothing to do with it at all." And so I never answered on that, and he kept talking, and told me that he had had them walking in and laying clown their cards on his table, and begging to go back to work, in other places that he had been, and they would move the plant back to St, Louis, and that I owned my own property, and if I listened to him I would get .somewhere. Q. Did he -say anything else about you owning your own property? A., Yes, sir. Q. Will you describe what he said about that? A. Well, I asked him what he thought about being employed there, or whether I should sell out, I had a chance to sell my property. And he says, "Hang on to it, we will bust this thing up. I just need four or five good men to help me." Brueck testified at the hearing that the only things discussed at this conference were the number of men around Crews' machine and Crews' property in the city. Brueck admitted that closing and lock- ing the door, as well as having such a conference, was extraordinary. It is not reasonable to suppose that Jannings called Crews in merely to tell him that he, should not- allow people to congregate at his machine. Such a matter would ordinarily have been taken care of by Brueck himself, and it seems that the proper persons to warn would be the persons who left their jobs to visit Crews. Furthermore, the Trial Examiner did not believe Brueck's testimony and it appears generally unpersuasive. Soon after the conference with Jannings, Crews joined Local No. 125 and on May 18 Brueck discharged him. Brueck did not reply when Crews asked why he, one of the oldest cutters employed and one whose work had never been criticized, was being discharged. It is clear that Crews was discharged because he refused to follow Jannings' orders to refrain from joining Local No. 125 and to per- suade others to renounce their affiliation. We therefore find that the respondent discharged Jesse Crews because of his membership in Local No. 125. At the time of the hearing, Crews was working for Pedigo-Lake Shoe Company in St. Louis. However, he expressed a preference for employment in Union. DECISIONS AND ORDPAIS 1097 Harold Tschappler was employed at cutting reinforcements until his lay-off on April 29. He testified that at the time of his lay-off lie and Elvin Kriebaum were the only reinforcement cutters working. Tschappler's last period of employment with the respondent be- gan in the week ending January 23, 1937, and continued, except for the period of the April strike, until April 29 when he was told that there was no more work. On May 3 Tschappler joined Local No. 125' and thereafter went back to the plant several times seeking reem- ployment. Each time Brueck told him there was no work for him and indicated that he would be called when there was an opening. On May 11, Brueck told Tschappler, "I can't use you any more" and, upon being asked for an explanation, walked away. During the workweek ending July 2, a reinforcement cutter who, had not worked for the respondent since at least April 1936 and did not belong to Local-No. 125'-was hired. Tschappler-was not recalled although Brueck had indicated to him that he would"'be` reinstated when work was available. At that time the respondent required membership in the C. S. W. O. as a condition precedent to em- ployment. The, respondent contends that it was under no duty to, recall the persons discharged before June 26 because it knew they would not join the C. S. W. O. As will be pointed out hereinafter, the closed-shop contract was invalid as a justification for discrim- inating against non-members of the C. S. W. 0., since made with a union assisted by the respondent's unfair labor practices. We therefore find that although the respondent did not discharge Harold Tschappler because of his membership and activities in Local No. 125, it did refuse to reinstate him during the workweek ending July 2, 1937, for that reason. Clara Henderson started her last,period of employment with the, respondent on January 21, 1937, and worked, with the exception of the strike period, until April 29, 1937, when she was laid off by Viola Copeland, floorgirl in the cutting department, who told her she would be recalled when she was needed. On May 4, Mrs. Hen- derson joined Local No. 125. On May 30, Mrs. Henderson talked to Grace Copeland, who dis- tributed the work among the doublers and the ironers, about re- turning to work. Grace Copeland, after pointing out that Wilma Klingsick and Lena Wideman, two girls hired and laid off at the' same time as Mrs. Henderson, had returned to work, stated : "Well, if you want to go back to work the Chamber of Commerce is send- ing out some cards here in town and they are going to have them in the factory Tuesday morning and if you want to go back to, work and you'll sign one of those cards you'll get back to work." Upon being asked the nature of the card, Grace Copeland added,. "I'm telling you right now it isn't for the Union." 11098 NATIONAL. LABOR IIELATIONS BOARD On Tuesday, June 1, Mrs. Henderson went to the factory, saw loy- =alty cards being distributed by Viola Copeland, and was told by Brueck that there was no work for her but he would call her when he needed her. During the workweek ending July 2, two new ironers were hired, neither of whom had previously worked in the Hambro pl'dlit. Mrs. Henderson was not recalled. It is clear that Brueck decided not to recall Mrs. Henderson be- "cause he suspected her of sympathy with Local No. 125, as an em- ployee who had participated in the April strike and refused to sign -a loyalty card. His failure to reemploy her at a time when new, -employees were being hired can only be attributed to her member- -ship in Local No. 125. We therefore find that the.respondent re- fused to reemploy Clara Henderson during the workweek of July 2, 1937, because.of her •rnembership,,in Local In addition to the persons whose discharges are discussed above, -the respondent discharged Ernest Smith and Marvin Clepper on May 12, Nora Lang on May 14,7 and Lester Lang on May 17.$ In view of the respondent's anti-Local No. 125 policy and the total lack of explanation for the selection of these persons for discharge ,on any ground but their membership in Local No. 125, we find that -the respondent discharged them because of their membership in Lo- -cal No. 125. (3) Fitting department On May 1, 1937, there were 271 employees on the fitting-department pay roll, 123 of whom became members of Local No. 125. Of the 124 employees laid off or discharged between May 1, and June 26, =80 were members of Local No. 125 while 44 were non-members. An ,,examination of the discharges reveals that the non-members dis- -charged were relatively new employees as a rule while the mem- bers of Local No. 125 discharged were generally older employees of -some standing in the plant. The respondent attributes these dis- ,charges to business conditions. A comparison of the employment in -the plant in November 1936 with that in May and June 1937 re- veals the falsity of the respondent's claim since, as shown above, -there was much less work to be done in the former period than there -was in the latter. During the week ending October 31, 1936, there -were 230 employees on the fitting-room pay roll. In November the respondent laid off 32 persons for periods of more than a week; -most of them were off for only 2 weeks and all were recalled within 7 Mrs. Lang testified that she was discharged on May 21. Board Exhibit No. 22-H ,shows that she last worked in the week ending May 15. Lester Lang "testified that he was discharged on Monday; May 24. Board Exhibit No 22-H, shows no work,for'him in,the week ending May-22 and consequently his dis- charge must have occurred on May 17. t ' - . . DECISIONS AND ORDERS 1099 5 weeks. During the same period only 10 persons were discharged. Xt that time the system of taking turns, under which most of the, lay-offs were arranged by the employees themselves, was in effect in the plant. Of the 29 fitting-room employees named in the com- plaint as amended, 16 had worked throughout November 1936. Fur- thermore, 27 employees who had worked through November 1936 left the respondent's employ before May 1, 1937, thus leaving vacan- cies to be filled by other employees who had been 'laid off at that time. It is apparent that had the respondent continued to allow the- employees to take turns most of the lay-offs in May and June 1937 would not have occurred. The respondent offers no explanation of its abandonment of the system of taking turns, and the high pro- portion of Local No. 125 members discharged leaves no doubt that, it was done to eliminate members of Local No. 125. An examination of individual cases in this department confirms that inference. The fancy stitchers. During the period from May 8 to July 3, 1937, there were 80 persons classified as fancy stitchers on the re- spondent's pay roll, 30 of whom belonged to Local No.^ 125. Only of the 36 fancy stitchers who worked every week from^May 8 through June 26 were members of Local No. 125. During the week ending May 15, 28 fancy stitchers, 15 of whom. belonged to Local No. 125, were laid off. Fourteen were not recalledi to work; among them were the nine members of Local No. 125 named, in the complaint as amended. The above figures show the disproportionate number of Local No. 125 fancy stitchers laid off and discharged. The respondent offered' no explanation for this-preponderance of Local No. 125 members and an examination of the individual cases, which reveals that among- those discharged were some of the oldest- employees in point of serv- ice in the department, shows that membership in Local No. 125 was- the criterion used. We therefore find that the respondent discharged. Mildred Rogers, Elsie Hults. and Myrtle Vorclerbruegge on May 10, Lydia Olten and Marie Bauman on May 11, and Reba Vorder- bruegge on May 15 because of their membership in Local No. 125. The cases of three fancy stitchers, Gladys Holloway, Laura Bran- son, and Bernice Loyd merit individual discussion. Gladys Holloway started work for the respondent in August 1936,. was laid off in October 1936, and was not reemployed until the week- ending January 2, 1937. From that time until her lay-off on May 11 she worked at fancy stitching. During the weep ending June 12' she was reemployed but was again laid off on June 15 or 16. Hollo- way was out during the April strike and joined Local No. 125 on May 5, 1937. She was one of the newest employees on fancy stitch- ing and had not taken turns during the slack period in November 4100 NATIONAi, LABOR RELATIONS I.OAIID 1936. There is nothing to indicate that the respondent had any special animus toward her because of her activities in Local No. 125, -and her reinstatement for 2 weeks in June negatives such a conclusion: We find that the respondent did not discharge Gladys Holloway because of her membership and activities in Local No. 125. Laura Branson began her last period of employment with the re- spondent at fancy stitching in April 1931. She was sufficiently active ,luring the April strike to be named as a defendant in the respondent's injunction suit. On May 3 she joined Local No. 125 and her discharge stook place on May 12. Meta Lee discharged Branson, telling her that she would be recalled when work became available. On May 26 Branson returned to the plant and remarked to Ekey, "It looks funny that the new girls that .iaven't been working here but 3 months are working and I ani not, .and I have been here 12 years." Ekey replied, "There are lots of funny things going on around here." Branson had worked during November 1936 but was off for 3 weeks in December 1936. She was one of the oldest employees in the depart- ment. The respondent advanced no reason for selecting Branson for discharge while others who had been employed by it for much shorter -periods were retained. As pointed out above, Branson was a defend- -ant in the injunction suit and a member of Local No. 125; it appears that those factors motivated the respondent in selecting her for •disch arge. We find that the respondent discharged Laura Branson because of her membership in Local No. 125. Bernice Loyd started work for the respondent on July 28, 1935. -She testified that she had never taken turns and Board Exhibit No. 22-G shows that she had suffered lay-offs for a week or two several times since April 1936. During November 1936 she had been laid off -for approximately 3 weeks. Loyd joined Local No. 125 on May 3 and, with some interruptions, worked until she was laid off during the week ending June 19.9 She testified that she contracted blood poisoning at that time and was un- able to continue working. It is clear that Loyd was laid off because she was unable to work and that her membership in Local No. 125 played no part in her discharge. We find that the respondent did not ,discharge Bernice Loyd because of her membership and activities in Local No. 125. I.sabelle Jones, Maudie Fay Breeden, and Marie Vance Breedon 10 were employed by the respondent at french binding. Isabelle Jones 'sad worked for the respondent for various periods since 1923, her last e Although Loyd testified that she worked until June 27, Board Exhibit No 22-G shows that her last work was in the week ending June 19. 20 Called Marie Vance on the respondent's pay roll. DECISIONS ANI ORDERS 1101 period of employment beginning on July 22, 1936. Like her husband, Elmer Jones; she was a charter member, of Local-No. 125: Maudie Fay Breeden first worked for the respondent in 1922, but her last period of employment began in the week ending August 8, 1936. She was one of the defendants in the injunction suit and joined Local No. 125 on May 1, 1937. Marie Vance Breedon started work for the re- spondent on January 7, 1937. She joined Local No. 125 on May 3. All three were discharged on May 11, 1937.11 Board Exhibit No. 38-C shows that at the time of the above dis- charge, 6 of the 12 french binders working belonged to Local No. 125. Four of the non-union french binders had started work for the respondent in January and February 1937; only one of then suf- fered even a temporary lay-off during May and June 1937. The only person classified as a french binder who was discharged, besides the three named in the. complaint as : amended -whose: discharges-:we, are now discussing, was also a member of Local No. 125. Marie Vance Breedon testified without contradiction that soon after the April strike the respondent had transferred Sue Diestel- kamp and Leatha Campbell, neither of whom belonged to Local No. 125, to french binding in order to teach them the operation. She further testified that they were working at french binding at the time of her discharge. Both Isabelle Jones and Maudie Breeden had taken turns during the slack period in November 1936, and Mrs. Jones had not been off for as long as a week during that period. Marie Vance Breedon-was not working for the respondent at that time. Maudie Breeden testified that on the day she was laid off Ekey asked her if she belonged to Local No. 125. Upon receiving an af- firmative reply, Ekey said, "Did you know when you sign your name you are sending your work down to St. Louis?" That afternoon when Ekey laid Maudie Breeden off, Ekey told her, "Go see Bud Jones for a job." About a week after her disWiarge; Maudie Breeden returned to the plant and took some work to her machine. Ekey sent her home with the statement, "You go home until I send for you, if I ever send for you." Although these statements were denied by Ekey, the attitude of the respondent and its foremen generally, to- gether with the discharge of Local No. 125 members of long standing in the plant, lends credence to Maudie Breeden's testimony and makes Ekey's denials unpersuasive. Furthermore, as is shown by the In- termediate Report, the Trial Examiner believed Maudie Breeden. 11 Maudie Fay Breeden testified that she was discharged on May 5. Board Exhibit No 22-0 shows that she worked in the week ending May 15. Board Exhibit No. 38-C corroborates the May 15 date. Board Exhibit No. 43-B states that her last period of employment ended on May 11, 1937. 1102 NATIONAL LABOR RELATIONS BOARD When Isabelle Jones returned to the plant on May 24, seeking reinstatement, she received the same treatment accorded Maudie Breeden. Marie Breedon did not return to the plant for her job since Ekey had told her that she would be called if she was needed. Although the evidence does not show that new french binders were hired to replace Isabelle Jones, Maudie Breeden, and Marie Breeclon, it does show that employees who did not belong to Local No. 125 were retained and worked each week throughout May and June and that nonmembers of Local No. 125 were transferred to french binding, while Jones, Maudie Breeden, and Marie Breeclon, older employees who were prominent members of Local No. 125 and who were known by the respondent to favor collective action by employees, were dis- charged. Under the circumstances, we find that Isabelle Jones, Maudie Breeden, and Marie Vance Breedon were discharged because of their membership in Local No. 125. At the time of the hearing,- Isabelle Jones was working at the Pedigo Shoe Company in St. Louis and had earned $82. She ex- pressed a preference for employment with the respondent in Union. Mabel Irwin started work for the respondent in March 1932. She was out for the duration of the April strike and joined Local No. 125 on May 2. On May 11, Ekey laid her off and told her she would be called when she was needed. Although Irwin testified that she took turns in the plant, Board Exhibit No. 22-G shows that her employment had been sporadic since April 1936. She was unemployed for 3 weeks in July 1936 and earned only $5.69 during August 1936. Thereafter she was employed during the last 2 weeks of September and the first 2 of October and then unemployed until January 1937. Mabel Irwin testified that she and Maxine Triplett were the only employees on taping. Board Exhibit No. 38-C classifies only Eleanor Soetebier exclusively as a taper. Three other employees, including Irwin and Triplett, are classified as working at taping and some other operation. Eleanor Soetebier and Maxine Triplett had worked steadily since April 1936. The other employee, Lavenia Short, had been hired in March 1937, but, according to Irwin's testimony, was not employed at taping. There is nothing to indicate that Mabel Irwin was especially active in Local No. 125. Furthermore, her employment had been sporadic in the past and she does not appear to have taken turns'during slack periods. We fincl'that the respondent did not discharge Mabel Irwin because of her membership in Local No. 125. Ruth Lewis, wife of Hadley Lewis, began her last period of em- ployment with the respondent on August 6, 1928, at french folding. She was a defendant in the injunction suit filed during the April strike and is a charter member of Local No. 125. DECISIONS AND ORDERS 1103 On May 6, on the street in front of the factory, Ruth Lewis asked Edna Williams to join Local No. 125. Williams refused. After work started that morning Edna Williams conferred with Ekey at great length. Ekey then approached Ruth Lewis : "Ruth, you are talking too much, I have a notion to fire you. If I didn't think so much of you I would fire you. Everyone you get to sign a union card, you are getting them to sign their jobs away." Ekey denied this statement but her testimony is generally unreliable. All of the french folders were sent home by Ekey on May 12, but Ruth Lewis was the only one not recalled thereafter. All except Ruth' Lewis and Bertha Marts, both members of Local No. 125, were' working the following week and Bertha Marts was recalled there- after. Ekey testified that Ruth Lewis was.discharged- because she was the last french folder hired. The record does not show Ruth Lewis' seniority as compared with that of three of the french folders, but it does reveal that Ruth Lewis had seniority over six of those retained after her discharge. Furthermore, during the week ending July 3, five new french folders were hired to replace the five members of Local No. 125 discharged before that time. Ruth Lewis was not recalled. Ruth Lewis was an eiilployee of long standing in the plant and had wvorkecl through the November 1936 slack period. The reason ad- vamiced"hy the respondent for selecting her for discharge, namely her lack of seniority, is without merit since Ruth Lewis had seniority over at least six of the french folders retained by the respondent after her discharge. It is clear that the respondent, by discharging Ruth Lewis; sought to rid itself of a prominent and active member of Local No. 125. We find that the respondent discharged Ruth Lewis because of her. membership in Local No. 125. 111innie Hinson began her last period of employment with the re- spondent on May 7, 1934. She did not work during the' April strike and joined Local No. 125 on May 3. Although she was classified as a lining maker on the respondent's pay roll, she testified', with Ekey's corroboration, that she had been working at closing linings with Georgia Kozark and Evelyn Miller. On May 11 Minnie Hinson was laid off. She was called back to work on May 13 and after working one-half clay was again laid off. At that time, Hinson was under the impression that the lining closers were taking turns in accordance with the usual custom. When she was not recalled at the beginning of the next week; she went to see Ekey at her home. Hinson pointed out that she had worked in the plant for 3 years and that Kozark and Wilson had been employed by the respondent for only 3 months. Ekey replied that it made no difference how long anyone had been employed and continued,' "You 1104 NATION AL LABOU I{ELATIONS BOARD people have been having it your way; now we are going to have it our way. If them two girls don't do what we tell them to they will get what you got." Ekey further informed Hinson that if another lining closer was needed, she would not be recalled but a new one would be broken in. Ekey did not deny any of those statements- but testified that Hinson was laid off because she had objected sev- eral times when Ekey had asked her to work temporarily at shoe closing. Ekey claimed that she was referring to those objections in the statement quoted above. However, the first part of the statement shows clearly what Ekey meant. "You people" could mean no one but Local No. 125 and the statement obviously refers to the activities of members of Local No. 125 among the employees. No other in- terpretation is possible when the anti-union activities of the re- spondent and. its - foremen are considered. Nor does, the fact that Georgia Kozark joined Local No. 125 on May 11 negative the above conclusion, since the respondent's knowledge of the membership of Local No. 125 was as yet imperfect. Furthermore, the discharge of an old employee who was a Local No. 125 adherent would have its salutary effect from the respondent's point of view even though a newly employed member was retained on the same job. We find that the respondent discharged Minnie Hinson because of her membership in Local No. 125. Francis Phelps and Catherine Vanderpool, sisters, were discharged by the respondent on May 14, 1937. Frances Phelps was employed at buckle sewing at the time of her discharge. Her last period of employment with the respondent began on July 22, 1929, and was interrupted only once when she was off for 3 months in 1934. Two other girls, Pearl Nobbe and Rose Rogers, were also classified as buc- kle sewers and both started working for the respondent after 1934. All three worked through the slack period in November 1936. Catherine Vanderpool had worked for the respondent intermit- tently since 1925. Her last term of employment began on August 5, 1936, but was interrupted by a 10-week lay-off in the fall of 1936. She was employed at trimming for pump stitching and testified that while she had worked in the plant longer than the other girls she was the newest on that job. Both Phelps and Vanderpool joined Local No. 125 early in May and received their membership cards on May 13. On May 14 they were discharged by Helen Altemeyer, assistant forelady in the fitting room, who testified that Ekey told her to discharge them because they talked too much. Helen Altemeyer, who joined Local No. 125 on June 26, further testified that when Ekey told her to discharge Phelps and Vanderpool she understood Ekey to mean that they were too active in Local No. 125 to be retained on the respondent's pay roll. Al- though Ekey denied telling Altemeyer anything more than to lay DECISIONS A-NI) ORDI' LS 1105 off 'Phelps and Vanderpool, her testimony is unconvincing and the Trial Examiner did not believe it. Both Phelps and Vanderpool testified that they were accustomed to taking turns when work was slack and they were the only members of Local No. 125 on their respective jobs at the time of their dis- charges. On May 22 Ekey told Phelps that she was keeping only her "friends" working, and her attitude throughout the period justifies the finding that by "friends" she meant and was understood to mean employees who were not members of Local No. 125. We find that the respondent discharged Frances Phelps and Cath- erine Vanderpool because of their membership in Local No. 125. Marie Copeland began her last period of employment with the re- spondent on April 19, 1937. She joined Local No. 125 on May 2, 1937, and was discharged on May 13, 1937.12 At the time of Marie Cope- land's discharge the respondent employed 33 top stitchers, 18 of whom, belonged to Local No. 125. During May and June 11 top stitchers were laid off and not recalled before July 3; 9 of them belonged to Local No. 125. In selecting those to be laid off, the respondent fol- lowed no rule of seniority, and many employees of long standing were, laid off while newer employees were kept working. The respondent offered no explanation of the method of selection, and the high pro- portion of members of Local No. 125 among those discharged and not reemployed convinces us that membership or non-membership iib Local No. 125 was the decisive factor in the determination. Although Marie Copeland had only been employed by the respond- ent for 1 month and her previous experience in the respondent's plant amounted to only 2 weeks, the respondent cannot advance that as the- reason for her discharge, since it disregarded seniority elsewhere in the plant. We find that the respondent discharged Marie Copeland because of her membership in Local No. 125. Betty Copeland and Jerine Webb were employed by the respondent as back shoe runners until their discharge on May 17 and May 20, 1937, respectively. Betty Copeland began her last period of employ- ment with the respondent on March 6, 1935, while Jerine Webb, started work for the respondent on May 20, 1933. Both worked with- out a lay-off until their discharges. Four women were employed in the fitting room at running back shoes. Margaret Farrell and Frances Pickles ran back lasting room shoes while Betty Copeland and Jerine Webb ran back fitting room shoes. Copeland and Webb were out for the duration of the April strike and joined Local No. 125 during the first week of May, while 12 Marie Copeland testified that she was discharged on May 6, but the respondent's records show May 13 to be correct. 1106 NATIONAL LABOR RELATI ONS BOARD Pickles and Farrell had worked during part of the April strike and did not join Local No. 125. On May 19 Ekey told Webb that Jannings had found out that Webb attended meetings of Local No. 125 and that he had instructed Ekey "to take her off the floor." The next day Webb was put at hand folding and then discharged. The discharges of Betty Copeland and Jerine Webb illustrate again the anti-Local No. 125 tactics of the respondent. Both Copeland and Webb had worked through previous slack periods without being laid off. When work slackened, Copeland and Webb, the only members of Local No. 125 running back shoes, were discharged while the two non- union employees were retained. No comparison of the seniority of the four back shoe runners is available, but all had worked through prior slack periods in the plant by taking turns. It is noteworthy that Ekey went to Webb's home on July 14 and asked her to join the C. S. W. O. and return to work. Jerine Webb refused to do so, arid was unemployed at the time of the Bearing. Considering all the circumstances surrounding the discharges, we find that the respondent selected Betty Copeland and Jerine Webb for discharge because of their membership and activities in Local No. 125. Betty Copeland was employed by Pedigo Shoe Company in St. Louis at the time of the hearing and had earned $75. She testified that she would like to return to work for the respondent. Myrtle Maness began her last term of employment with the re- spondent on June 20, 1932, at hand folding. She remained out for the duration of the April strike and joined Local No. 125 on May 6. Fourteen persons worked at hand folding between May 8 and July 3, 1937. Eight of them belonged to Local No. 125. Four of the hand folders, two of whom belonged to Local No. 125, were re- tained without missing a calendar week throughout that period. The employment of the others was sporadic throughout May and June, and by July 1 seven of them were no longer employed by the respondent. Five of those seven belonged to Local No. 125. During the week ending June 12 the respondent recalled a hand folder who had not worked in the plant since September 1936, with the exception of single weeks in January and March 1937, and she was employed steadily thereafter. Myrtle Maness was laid off on May 11 and recalled to work on May 18. She testified that all hand folders were laid off and recalled on those dates. On May 20 Maness was again laid off, but this time two of the hand folders were retained on trial work. The May 20 lay-offs lasted anywhere from a few days to a month, and Maness was never recalled. DECISIONS AND ORDERS 1107 The lay-off of Maness on May 20 was tantamount to a discharge. She was the oldest employee in; point of service at hand folding. She, testified that she often discussed Local No. 125 with the other hand folders at their table while they were working. The respondent does not assign that as the reason for her discharge but states that she was discharged because of slack work and gives no reason for selecting Maness in preference to younger employees. The fact that her discharge would serve as a warning to other employees who might contemplate joining Local No. 125 undoubtedly motivated the re- spondent. The actions of its foremen and foreladies throughout May and June show that to have been the primary consideration in selecting employees for discharge. Maness had worked through prior slack periods in the plant by taking turns with other employees, and the lay-offs on this operation during May and June 1937 indicate-that that system was in use dur- ing those months. Maness was excluded from its operation, and the only reasonable explanation, in the light of all the evidence in the record, is her affiliation with and activity in Local No. 125. We, find that the respondent discharged Myrtle Maness because of her membership in Local No. 125. Jewell MeEwen began her last period of employment with the re- spondent on July 6, 1934. She was employed at lining making and took turns during slack periods until May 1937. On May 2, 1937, McEwen joined Local No. 125, and she was laid off on May 11. On May 18 the respondent recalled her and on May 24 she was discharged. At that time the respondent employed eight lining makers, two of whom, Jewell McEwen and Mamie Nappier, belonged to Local No. 125. Two of the non-union lining makers, Marian Niebruegge and Evelyn Wilson, started work for the respondent during weeks ending April 24 and February 13, 1937, respectively, and worked without being laid off throughout May and June 1937. It is noteworthy that Marian Niebruegge is the wife of Ludy Niebruegge, who began to organize the C. S. W. O. soon after she started to work in the plant. A third non-union lining maker, Hilda Miller, was laid off for the week ending May 22 but was reinstated at another job the following week, replacing Ellen Holaway, a member of Local No. 125. The other non-union lining makers worked throughout May and June as they had through other slack periods. Jewell McEwen was not permitted to participate in taking turns with the other employees and was discharged on May 24. Mamie Nappier, the other member of Local No. 125 among the lining makers, was discharged on June 28 when she refused to join the C. S. W. O. Thus the respondent sought to rid itself of members of Local No. 125. It offers no explanation for the selection of MoEwen for discharge when an employee hired as recently as April 24, 1937, was retained. 134068-39-vol ix--71 1108 NATIONAL LABOR RELATIONS BOARD We find that the respondent discharged Jewell McEwen because of her membership in Local No. 125. Ellen Holaway began her last period of employment with the re- spondent on June 24, 1935, and worked without being laid off until her discharge on May 24, 1937. At the time of her discharge, Hola- way was the only employee working at seaming rubber linings and was a member of Local No. 125. On May 28, when Holaway re- turned to the plant seeking reinstatement, Ekey informed her that another woman had come in with such a "pitiful story" that . Ekey had put her on Holaway's job. The "other woman" was Hilda Miller, a non-member of Local No. 125 who had been employed as a lining maker. Ekey's statement that Hilda Miller was put on Hol- away's job because of her "pitiful story" is wholly unpersuasive. The discrimination against members of Local No. 125 among the lining makers has been pointed out above. The inference that the respond- ent sought to rid itself of another member of Local No. 125 by trans- ferring Hilda Miller to Ellen Holaway's job is inescapable. We find that the respondent discharged Ellen Holaway because of her membership in Local No. 125. Ruby Rodgers began her last period of employment with the re- spondent on March 2, 1932. Except for short periods on trimming, she worked at tongue cementing, where Mildred Bay was the only other employee. Both Mildred Bay and Ruby Rodgers were mem- bers of Local No. 125, and on May 13 both were laid off. Rodgers was recalled on May 17 and worked until her discharge on May 24. Rodgers testified that, at the time of her discharge, there were linings in the rack in which her work was kept but that she was waiting for the necessary vamps to be supplied. After May 24 tongue cementing was done by Dolores Rojo, a non- member of Local No. 125, whose job is classified by the respondent as "cut out and reinforce linings and lacing." Ekey testified that of the two Rojo was the better worker and that Rodgers was discharged for that reason. However, Ruby Rodgers had been working in the plant since 1932 and had not been laid off during prior slack periods while Dolores Rojo had been employed at a different job and, as far as the record shows, had never worked at tongue cementing before Rodgers' discharge. Here again the respondent discharged an employee of long stand- ing who belonged to Local No. 125 and transferred another employee who did not belong to Local No. 125 to her job. We find that the respondent discharged Ruby Rodgers because of her membership in Local No. 125. Delsie Corwm, Ethel Hendrix, and Rissie Matthews were employed by the respondent as cleaners at the time of their discharge. All DECISIONS AND ORDERS 1109 three joined Local No. 125 in the early part of May 1937 and were discharged on June 18. Five other cleaners, none of whom belonged to Local No. 125, were employed by the respondent. None of the five non-union cleaners was laid off during May or June 1937, while Corum, Hendrix, and Matthews were laid off on June 7, recalled on June 10, and finally discharged on June 18. The testimony of Helen Altemeyer, assistant forelady in the fitting room,-on those discharges, is illuminating : Q. Will you please state the details and the circumstances around the further discharge of the girls? The date, to begin with. A. I couldn't tell you the date. Q. Approximately? A. Around the middle of May, about the 18th or 20th of May.13 Q. All right. A. She called me and she said Q. Who is she? A. Agnes Akey (sic ) said I should lay off half of the clean- ers; I said, "Why? I am letting them take day about like I always did." She said, "I don't want them to do that anymore." She said, "I want you to keep the younger girls and lay off some of the elderly ladies, and the lady on the end, Miss Eliza- beth Sammett, keep her." A. And after she told me that, she decided to change her mind, she says, "Wait a minute, I will give you the names of the girls I want you to lay off," so she got Rose Rogers and they went up to the other end of the room and she said, "I want Ethel Hendrix, Ressie (sic) Matthews, and Delsie Corum laid off." Rose Rogers was also a cleaner and had been very active in passing out loyalty cards in the plant. She had unsuccessfully endeavored to induce Rissie Matthews and Delsie Corum to sign loyalty cards by telling them they would lose their jobs if they did not sign. Rogers had also o questioned Ethel Hendrix on her affiliation with Local No. 125, and, although Hendrix signed a loyalty card, Rogers knew of her membership in Local No. 125. In spite of the fact that most of the cleaners had seniority over Corum, Hendrix, and Matthews, it is clear that the respondent did not discharge them because they were the newest employees. Helen Altemeyer's testimony shows "It is obvious that the conversation took place about the middle of June, since that is when Corum, Hendrix, and Matthews were discharged 1110 NATIONAL LABOR RELATIONS BOARD that Ekey's selection of cleaners for discharge was based on infor- mation given to her by Rose Rogers, an opponent of Local No. 125 who knew the union affiliation of members of the department because of her activities in circulating loyalty cards. The conclu- sion that no other criteria were used is inescapable. We find that the respondent discharged Delsie Corum, Ethel Hen- drix, and Rissie Matthews on June 18, 1937, because of their mem- bership in Local No. 125. Viola Jett had been working for the respondent intermittently since 1930. Her last period of employment began at pasting in February or March 1937, and ended with her discharge on May 11.14 She joined Local No. 125 on May 6, 1937. Viola Jett was the last paster to be hired by the respondent and the first one to be discharged. Her employment record indicates that, during her previous employ- ment with the respondent, she had not participated in the practice of taking turns. Under the circumstances, and despite the prominence of the Jett family in Local No. 125, we cannot say that Viola Jett's lay-off was actuated by her membership in Local No. 125. It was her usual fate during slack seasons. We find that the respondent did not discharge Viola Jett because of her membership and activities in Local No. 125. (4) The heel and edge department On May 1, 1937, the heel and edge department had 32 employees, 19 of whom later joined Local No. 125. Thirty of them were em- ployees of long standing who had worked through prior slack periods by taking turns. On May 3, 1937, Elmer Jones, Leo Koester, and Herman Kinkeade, whose discharges are considered in Section III, B, 1, above, were discharged. During June, six additional employees were discharged; four of them belonged to Local No. 125. The respondent contends that these discharges were necessary be- cause of business conditions. The records of the heel and edge de- partment demonstrate the falsity of that contention. During Novem- ber 1936, when, as pointed out above, there was less work to be done than in May and June 1937, the respondent maintained also 32 employees in the heel and edge department, 10 more than were re- tained throughout May and June 1937. This discrepancy was due to the abandonment of the system of taking turns which had been 14 Board Exhibit No. 22-G shows that Viola Jett began her last period of employment with the week ending April 3, 1937, and that she was discharged during the week ending May 8, 1937. Board Exhibit No. 43-B shows that her last period of employment began on January 24, 1936, and Board Exhibit No. 38-B shows that it ended during the week ending May 15, 1937. All of these exhibits purport to be taken from the respondent's pay rolls. Viola Jett testified that she had quit in July 1936, and had been reemployed in February 1937. She testified that she was discharged on May 11, 1937. DECISIONS AND ORDERS in effect in November 1936. The discharges discussed above show that the system of taking turns was abandoned because of the organ- ization of Local No. 125 and that the respondent utilized its aban- donment to rid itself of Local No. 125 members. In the heel and edge department the respondent's motive is less easily discernible be- cause of the fact that members of Local No. 125 were concentrated in the same type of work and anyone laid off on those jobs would necessarily have been a member of Local No. 125. However, the re- spondent's intent is clearly shown by the discharges on May 3 and the later discharges are in line with the policy thereby indicated. Fred Hinson started work for the respondent in 1926. His last period of employment began in 1930 and was interrupted only once by a 2 months' lay-off in 1933. At the time of his discharge on June 2, 1937, he was working at wood heel attaching with two other members of Local No. 125, over all of whom he had seniority. On May 3 Hinson joined Local No. 125. On about June 1 Tom Farrar, a leather man in the plant, asked Hinson if he had signed a card. Hinson, evidently thinking that Farrar was referring to a Local No. 125 card, replied in the affirmative. Farrar explained that he was referring to a loyalty card which he then asked Hinson to sign. Hinson tried to delay signing by saying he wanted to look the card over but Farrar said he had to turn it in at the plant the next morning. The record does not show whether or not Hinson signed, but he was discharged the next morning. The respondent advanced no reason for selecting Hinson for dis- charge from among the wood heel attachers. The attitude of the respondent toward Local No. 125 as evidenced by its abandonment of the system of taking turns indicates that Hinson was selected for discharge because the respondent knew he was a member of Local No. 125. Furthermore, his discharge was the direct result of the respondent's refusal to allow its employees to take turns. We find that the respondent discharged Fred Hinson because of his activities and membership in Local No. 125. After his discharge Hinson earned $2.52. Chester Rogers began his last period of employment with the re- spondent on January 20, 1933. He was one of seven edge trimmers, all of whom belonged to Local No. 125. Although Rogers testified that he was the last edge trimmer hired with the exception of Leo Koester, the respondent's records show that two others were hired after Rogers started work the last time. The custom on this job, as elsewhere in the plant, was to take turns during slack periods and had the respondent followed that custom no discharges would have taken place. 1112 NATIONAL LABOR RELATIONS nOARD On June 2 George Kreft, heel and edge department foreman, told Rogers that he had a list of men to lay off and that Rogers was the first one on it. Kreft stated that they were no longer to take turns and that Rogers was laid off. What was said above in the case of Hinson applies here with equal force. Since the evidence shows that the respondent abandoned the system of taking turns in order to rid itself of Local No. 125 mem- bers, the discharge of Chester Rogers was discriminatory, although non-union employees were also discharged. We find that the respondent discharged Chester Rogers because of his membership and activities in Local No. 125. (5) Lasting department The respondent employed 73 persons in the lasting department on May 1, 1937, 42 of whom joined Local No. 125 upon its organization. Between May 1 and June 26 there were 22 lay-offs or discharges in this department, and 18 of the persons laid off or discharged belonged to Local No. 125. The respondent contends that the lay-offs and discharges were due to business conditions, but it makes no effort to explain the abandon- ment of the system of taking turns and the discharge of many old employees who were members of Local No. 125. During the week ending October 31, 1936, there were 71 employees in the lasting de- partment. During November 1936 only two persons left the respond- ent's employ and only seven were laid off for more than a calendar week. Most of those laid off were recalled within 3 or 4 weeks. When the pay-roll records for November 1936 are compared with those for May and June 1937, it is apparent that in the lasting de- partment, as in other departments throughout the plant, the respond- ent abandoned its usual custom of allowing the employees to take turns working and discharged employees of long standing in an attempt to frustrate the organization of Local No. 125. Here, as in other departments, the respondent followed no seniority system, and offered no explanation of the method it used to select the persons to be discharged. Harold Wilson started work for the respondent on August 29, 1936, at lasting foreparts. He was the newest employee on that job and was laid off during the November 1936 slack period but worked thereafter until his discharge. On May 3 Jannings came into the plant and discharged Wilson, telling him that it was because of poor work. At that time Wilson did not belong to Local No. 125, but he became a member soon after his discharge. Harold Wilson testified that he had not suffered more than the usual criticisms of his work and that several times his foreman, Tony DECISIONS AND ORDERS 1113 Shultz, had complimented him on it. The respondent introduced no evidence of the quality of Wilson's work." After his discharge Wilson asked Dorcie Vincent why he had been discharged. Vincent, who is classified as a general helper in the last- ing department by the respondent and who Wilson testified was an assistant foreman, told him that he thought Jannings had confused him with his brother, Herbert Wilson, a charter member of Local No. 125 and had discharged him for that reason. Jannings did not testify at the hearing. On May 3, the day Harold Wilson was discharged, Jannings per- sonally discharged the five charter members of Local No. 125 whose discharges are discussed above in Section III, B, 1. It is noteworthy that Jannings handled the discharge of Harold Wilson himself and came into the plant to do it, although foremen usually handled dis- charges which were as routine as the respondent claims this to have been. It is apparent from the above that Harold Wilson was discharged because the respondent thought he had been instrumental in organiz- ing Local No. 125. That the respondent was mistaken and selected the wrong man makes the discharge no less a discrimination against Local No: 125 and Harold Wilson. We find that the respondent discharged Harold Wilson on May 3, 1937, because it thought he was a charter member of Local No. 125. Robert Kratzchmar had been employed by the respondent as a bed laster since July 15, 1933. He participated in the April strike and remained out for its duration; on May 2, 1937, he joined Local No. 125. At the time of Kratzchmar's discharge on May 6, 13 bed lasters, 7 of whom belonged to Local No. 125, were employed by the respond- ent.16 During May and June 1937 only three bed lasters were dis- charged or laid off and all of them belonged to Local No. 125. One of the three was reemployed during the week ending July 3 after joining the C. S. W. O. When Kratzchmar was laid off on May 6, his foreman, Tony Shultz, told him that Jannings had said to lay off the newest em- ployees. Kratzchmar testified that he and Onie Copeland, a mem- ber of Local No. 125 who was laid off on June 12, were the newest employees in the department, although they had been working since 1933 and 1934 respectively. However, Board Exhibit No. 38-E shows that other bed lasters had not worked for various periods of time w Shultz, Wilson's foreman , had been injured and was not working at the time of the hearing. Whether his injuries kept him from testifying does not appear from the record ' 36 Kratzchmar testified that there were 8 bed lasters besides himself employed, but Board Exhibit No. 38-D shows that the respondent employed 12 persons classified as bed lasters between May 8 and July 3. - 1114 NATIONAL LABOR RELATIONS BOARD since April 1936, while both Kratzchmar and Copeland had worked steadily since that time, with the exception of the April strike period. After his discharge, Kratzchmar returned to the plant several times seeking reemployment. On about June 1 Shultz told him that Jan- nings had said not to reemploy anyone laid off theretofore. There- after, five new employees were hired in the department, one during the week ending June 5, and Kratzchmar was not recalled. Kratzch- mar was an employee of long standing who had not been ]aid off during prior dull seasons. In May 1937 he was not permitted to take turns with other employees as he had previously done, and he was discharged on the pretext that he was the newest employee and then replaced with a new employee. The respondent paid no atten- tion to seniority elsewhere in its plant, and it cannot use it as a sub- terfuge to eliminate a member of Local No. 125. We find that the respondent discharged Robert Kratzchmar because of his membership in Local No. 125. Robert Henderson started work for the respondent in 1927, but his last period of employment began on December 16, 1935. He was employed as an ironer and crowner 17 with Fred Hagedorn and Gus McEwen at the time of his discharge on June 1, 1937. Both Henderson and McEwen belonged to Local No. 125, while Hagedorn was not a member. McEwen, however, concealed his membership and kept on good terms with the respondent by signing a loyalty card when asked to do so. The discharge of Henderson is another instance of the respond- ent's utilization of the slack period to rid itself of a member of Local No. 125. The evidence shows that during slack seasons the custom had been to allow the ironers and crowners to share the work. That custom was not followed in June 1937. We find the respondent discharged Robert Henderson because of his membership in Local No. 125. (6) The finishing department On May 1, 1937, there were 40 employees in the finishing depart- ment, 31 of whom later joined Local No. 125. Between May 1 and June 26, 12 members of Local No. 125 were laid off or discharged in the finishing department, while only 1 non-member was laid off. The non-member laid off had started to work for the respondent in March 1937 and worked for only 4 weeks at that time. He was reemployed in the week ending May 8, after these discharges began, and worked steadily thereafter except for the last 3 weeks of June. The dis- charged members of Local No. 125, on the other hand, were employ- ees of long standing, most of whom had worked during prior slack 11 Henderson termed his work inspecting , but the respondent classified it as above. DECISIONS AND ORDERS 1115 seasons. Only three of them had not worked every week in Novem- ber and December 1936, and those three appear to have been taking turns with other employees at that time. The respondent's contention that these lay-offs and discharges were necessitated by lack of work is not supported by the evidence. De- spite the low production in November 1936, as shown by the table quoted above, the respondent had 45 employees on the finishing-de- partment pay roll during that month in contrast to the 40 it carried on May 1, 1937. During November 1936 the respondent discharged four employees while six suffered temporary lay-offs lasting from 1 to 4 weeks. When these lay-offs and discharges are compared with those in May and June 1937, it is apparent that lack of work was not the primary reason for the discharges in the latter period. An ex- amination of the situation in other departments has led us to the conclusion that in discharging people in May and June 1937 the re- spondent was motivated by its desire to destroy Local No. 125. The evidence concerning the finishing department supports that conclu- sion. Herbert Wilson started work for the respondent on June 29, 1933. During his first 2 years with the respondent, Wilson suffered several lay-offs, but he had been working steadily, except for the April strike period, since the fall of 1935. He is a charter member of Local No. 125. At the time of his discharge on June 2, Herbert Wilson was em- ployed as a bottom painter. Four other employees, all of whom belong to Local No. 125, were also classified as bottom painters, but two of them were carried by the respondent in other classifications as well. The most prominent Local No. 125 member among the bot- tom painters, Wilson was the first to be discharged, but two others followed him on June 28 when they refused to join the C. S. W. O. During the week ending July 3, four new bottom painters were hired, but Wilson was not recalled. On June 2, William Dittman, the finishing-department foreman, discharged Wilson, informing him that the employees were no longer permitted to take turns as they had in the past. Wilson, as well as the other bottom painters, had worked through previous slack periods in the plant. Under all the circumstances, it is clear that the respondent sought to rid itself of a prominent Local No. 125 member by abandoning the system of taking turns in this department and thus eliminating Her- bert Wilson. We find that the respondent discharged Herbert Wilson because of his membership in Local No. 125. Otis Hinson started work for the respondent in 1926. His last period of employment began on May 23, 1934, and continued until his discharge on June 2, 1937. 1116 NATIONAL LABOR RELATIONS BOARD Hinson was classified by the respondent as a heel scourer and edge setter and was, at the time of his discharge, one of eight employees at edge setting; five of them, including Hinson, belonged to Local No. 125. Although Hinson's continuous employment record with the re- spondent was shorter than that of any other edge setter, he was not a new employee and had worked longer at that particular job than two of the non-anion edge setters. Furthermore, as we have stated above, the respondent did not claim to follow - any general seniority policy. - The three non-union edge setters worked through May and June 1937 without being laid off. One of them, Al Birmingham, did not return to work after the April strike until the week ending May 15, but was employed steadily thereafter. Birmingham's recall in the week ending May 15, after Clarence Aytes, a member of Local No. 125, had been laid off from this department one week previously, and when there was less work than in any other week of May and June, illus- trates the difference in treatment accorded to members and non- members of Local No. 125. On June 1 Hinson talked to Ed Heeger,18 a wood heel finisher in the heel and edge department who was soliciting signatures for loyalty cards. Heeger announced that the respondent' was backing the card`s and said, "If you want to sign one of those cards up, sign one of these, why, the Company will back you, your job will back you." When Heeger found out that Hinson belonged to Local No. 125, he refused to discuss the loyalty cards and their efficacy as job insurance further and stated that they needed no one who belonged to Local No. 125. On June 2 Hinson was discharged. Hinson's discharge after his talk with Heeger duplicates what happened to other employees through- out the plant after the persons who were passing the loyalty cards learned of their Local No. 125 membership. We find that the respondent discharged Otis Hinson because of his membership in Local No. 125. Jesse Shafferkoetter had been working for the respondent since 1923. His employment was interrupted three times by lay-offs or dis- charges, and the last uninterrupted period began on May 2, 1934. Shafferkoetter was usually employed at repairing bottoms, but after May 3, 1937, he was transferred to other jobs in the department in order to take care of the dislocation caused by the discharge of his brother, Guy Shafferkoetter, and Hadley Lewis and Perry Nappier. Three persons were regularly employed at repairing bottoms; all were employees of long standing who had taken turns during slack periods. Two, Jesse Shafferkoetter and one Anderson, belonged to Local No. 125. Is Called Ed Hager in the stenographic report of the hearing. DECISIONS AND ORDERS 1117 On June 2, William Dittman, foreman of the finishing department, discharged Shafferkoetter. When Shafferkoetter asked why, Ditt- man replied that Shafferkoetter's discharge was due to slack work and denied that his membership in Local No. 125 had anything to do with it. Dittman's statements are not persuasive in view of the custom in the plant and the amount of work available. Jesse Shaf- ferkoetter had worked through prior slack periods in the plant with- out being laid off. His discharge can be attributed only to his sympathies for Local No. 125 which were, undoubtedly brought to the respondent's attention because of the prominence . in Local No: 125 of his brother, Guy Shafferkoetter, a charter member whose dis- charge is discussed above. We find that the respondent discharged Jesse Shafferkoetter be- cause of his membership in Local No. 125. After his discharge, Jesse Shafferkoetter earned $8.85. At the time of the hearing he was working on a farm. Harvey Hafley began his last period of employment with the respondent on May 3, 1931, and was employed without being laid off until his discharge on June 3, 1937. Two breast scourers, Hafley and Fred Bay, were employed by the respondent on June 3; both were employees of long standing and members of Local No. 125. When Dittman discharged Hafley, Hafley pointed out his seniority at breast scouring. Dittman countered with Bay's longer employ- ment record in the plant, but told Hafley nothing further and offered no explanation for the abandonment of the system of tak- ing turns. The discharges throughout the plant show that 'the respondent was not following any seniority rule in reducing its force but was, whenever possible, eliminating members of Local No. 125. Hafley was a victim of that policy, and his discharge, although Bay was retained, can only be attributed to the respondent's desire to rid itself of members of Local No. 125. We find that the respondent discharged Harvey Hafley because of his membership in Local No. 125. After.his discharge, Hafley earned $16.35 shocking wheat and hay. Oscar Peirick began his last period of employment with the re- spondent on May 3, 1934. During his employment in the finishing room he had worked at several operations; but' at the time of his discharge on June 3, he was engaged in birdseyeing and in pulling lasts. Although Peirick was the younger in point of service of the two last pullers then employed by the respondent, he was an employee of long standing and the only person employed at birdseyeing. Both Oscar Peirick and the other last puller had worked through Novem- ber and December 1936 by taking turns and both belonged to Local 1118 NATIONAL LABOR RELATIONS BOARD No. 125. Under the circumstances there is no doubt that Peirick was discharged because of his prominence in Local No. 125. The other last puller was not prominent in Local No. 125. Peirick had been active in the April strike and, in addition to being a defendant in the respondent's injunction suit filed at that time, was a charter member of Local No. 125 and a member of its executive board. When Peirick was discharged, Dittman, his foreman, told him that it might be a long time before he was recalled. These facts, together with the respondent's general policy of eliminating members of Local No. 125, leave no doubt about the reason for his discharge. We find that the respondent discharged Oscar Peirick because of his membership in Local No. 125. 7. The packing department 19 On May 1, 1937, there were 78 employees in the packing depart- ment, 27 of whom became members of Local No. 125 after its or- ganization. Between May 1 and June 26, 17 members of Local No. 125 were discharged while only 3 non-members were so treated. These wholesale discharges were not justified, as the respondent con- tends, by a decline in the work available. As has been pointed out above, the factory was busier during May and June 1937 than it had been in November 1936, when the respondent retained 75 em- ployees on the packing department pay roll. The evidence shows that the respondent, in the packing department as elsewhere in the plant, deliberately abandoned the system of taking turns in order to rid itself of members of Local No. 125, and that, in selecting per- sons to be discharged, it used no other criteria than membership in Local No. 125. Of the eleven members of Local No. 125 discharged before June 26 and named in the complaint as amended, eight had worked through November and December 1936 by taking turns with other employees. Their service records in the factory show that they were victims of the respondent's hostility toward Local No. 125. The foreman of the packing department. Thomas Rowland, was a vehement opponent of Local No. 125 and, although he denied state- ments attributed to him by witnesses at the hearing, his denials are not convincing in view of the overwhelming preponderance of Local No. 125 members discharged'in his department and the fact that the Trial Examiner did not believe them. Elda Watts began her last period of employment with the re- spondent on April 21, 1927. At the time of her discharge on May 14, 1937, she was one of three raggers employed by the respondent. The others were Wesley Roberson and Augusta Oversmith. Wesley '- On some of the exhibits prepared by the respondent for the Board, the treeing de- partment is included In the packing department while on others it is not. We shall include it in our discussion of the packing department. DECISIONS AND ORDERS 1119 Roberson, whose discharge on June 3 is discussed below, and Elda Watts belonged to Local No. 125 while Augusta Oversmith was not a member. The respondent contends that Elda Watts was discharged because of slack work. We cannot agree with that contention. Elda Watts had worked through prior slack periods in the plant. On May 7, Rowland came to her table and, after condemning those who joined Local No. 125, said, "I ought to fire the whole works of you and let the God damn C. 1. O. give you a job." When Rowland dis- charged Elda Watts on May 14, she remarked that there seemed to be plenty of work available. He replied, "We just got no work for you." It is clear that Elda Watts' membership in Local No. 125 was the reason for her discharge. We find that the respondent discharged Elda Watts because of her membership in Local No. 125. Helen Peirick had been employed by the respondent at vamp trim- ming in the treeing room by the respondent since February 12, 1937. On June 2, 1937, she was discharged by her foreman, William Lake- brink, and told that she would be recalled when more work became available. At the time of Helen Peirick's discharge, Rosa Kratzer and Eunice Rattles were also employed at vamp trimming. Eunice Rattles had been hired in January 1937, while Rosa Kratzer had been employed steadily since before April 1936; neither belonged to Local No. 125. Helen Peirick was a member of Local No. 125 at the time of her discharge and, together with her brothers and sister, whose discharges are discussed above, had been very prominent during the April strike. Although the respondent would have been following seniority in discharging Helen Peirick had a seniority system existed, events in the packing department and elsewhere in the plant lead us to the con- clusion that that was not the reason for her discharge. The re- spondent did not profess to follow seniority rules elsewhere in the plant. Until May 1937, it allowed its employees to take turns, and Helen Peirick would have been a beneficiary of that system had it still been in force on June 2. That the respondent abandoned the system of taking turns in order to rid itself of Local No. 125 mem- bers is demonstrated by the evidence. Furthermore, William Lake- brick, treeing-room foreman, testified that the treeing room was un- derstaffed at the time of the hearing. We find that the respondent discharged Helen Peirick because of her membership in Local No. 125. Sylvia Copeland was employed at cementing rubber taps and heel pads on sock linings in the treeing room.- She had been hired on February 15, 1937, and was discharged on June 2, 1937, 1 month 20 Board Exhibit No 38-H classifies Sylvia Copeland's work as "cut out under gore." She testified that she was employed as above 1120 NATIONAL LABOR RELATIONS POARD after she joined Local No. 125. When Lakebrink discharged her he said, "The sock liners used to do this . I will have to let them do it now." It is noteworthy that the respondent then employed three sock liners, only one of whom belonged to Local No. 125. It is clear from the above that there was work to be done at Sylvia Copeland's job at the time of her discharge. She was the only em- ployee at that job and Lakebrink stated that some one else would have to do it after her discharge . His further statement that she would be recalled when needed was merely a sop to soften the effect of the discharge . The respondent offered no explanation for Lakebrink's conduct and it is clear that it was calculated to eliminate another member of Local No. 125. We find that the respondent discharged Sylvia Copeland because of her membership in Local No. 125. Rachel Vincent was discharged by the respondent on June 3, 1937, after having worked for the respondent steadily since March 1931. She had returned to work before the end of the April strike, an action which drew expressions of gratitude from her foreman, Thomas Rowland. Thereafter Rowland often consulted Mrs. Vin- cent about Local No. 125, which she joined on May 7. On May 16 or 17, Rowland asked Mrs. Vincent how Local No. 125 was coming along and added: "I think people are damn fools for monkeying with this C. I. O. They will lose their homes. People ought to consider these things before they go into such an organiza- tion because Mr. Hart has already told us `they wouldn 't recognize no union here'." Mrs. Vincent testified to many similar conversations with Rowland and, although he denied ever discussing Local No. 125 with her, his denials are not persuasive. On May 25 Rowland approached Cora Rogers, whose discharge is discussed below; he asked if she had heard Mrs. Vincent's speech at the Local No. 125 meeting and remarked that Rachel Vincent had changed her mind since the April strike. On June 3 Mrs. Vincent questioned Elizabeth Dehne, assistant fore- lady in the packing department, in regard to discharges in that de- partment. Mrs. Dehne denied knowing whether Mrs . Vincent's discharge was imminent but said, "People who sign that C. I. O. will probably get laid off." Mrs. Dehne's statement was prophetic for later that day Rowland discharged Mrs. Vincent . After her dis- charge, she consulted C. J. Jannings, who told her that she might be recalled in a few days. Thereafter, Gladys Hemker, a sock liner in the packing department, asked Mrs. Vincent to sign a loyalty card saying ' that if she did so she could return to work the next day. Charles Cole, superintendent of schools, who was interested in the C. S. W. O. and helped in its organization , later gave Mrs. Vincent the same information. DECISIONS AND ORDERS 1121 It is clear from the above that Rachel Vincent was discharged be- cause of her sympathies with Local No. 125. She and Rachel Hal- mich, the only dressers belonging to Local No. 125, were the only dressers to be discharged; the other three worked through May and June although all of them had been hired after Vincent and Halmich. We find that the respondent discharged Rachel Vincent because of her membership in Local No. 125. Cora Rogers was discharged by Rowland on June 3 after working steadily for the respondent since January 20, 1933. She was one of nine repairers employed by the respondent, four of whom belonged to Local No. 125. None of the non-members of Local No. 125 was laid off during May or June 1937, while Rogers and Gearhart were discharged on June 3 and the other two members on June 28. All of the repairers had been working for the respondent since before April 1936, and all had worked steadily since that time, except for occasional weeks when taking turns. On May 17 Cora Rogers asked Rowland for permission to take the afternoon off in order to be a witness at Elmer Jones' trial at the courthouse. Rowland, after expressing his desire to see Jones in jail, said, "You know what Bud Jones is doing to you, he is setting you out in the street." Here again the evidence shows that the respondent utilized the slack season and its abandonment of the system of taking turns to rid itself of members of Local No. 125. We find that the respondent discharged Cora Rogers because of her membership in Local No. 125. Maude Roberson and her son, Wesley, were discharged by the re- spondent on June 3, 1937. Before their discharge, the respondent, through its foreman, Thomas Rowland, had repeatedly indicated its increasing hostility toward them because of their affiliation with Local No. 125. On or about May 6, Rowland told Maude Roberson, "This is the biggest townful of damn fools I ever saw in my life. Anybody that would join the C. I. O. ought to starve to death." Later the same week, Rowland informed Maude Roberson that Wesley would be discharged the next week. Mrs. Roberson asked Rowland why he "picked on" Wesley. Rowland replied, "Mr. Jannings is not pick- ing on him, he is getting himself out. Anybody that joins the C. I. O. is getting theirselves out of a job. Then who is going to feed him, C. I. O. or Bud Jones?" Wesley Roberson was not discharged the next week, however, but was retained until June 3. On or about May 20 21 Elsie Lalk, an inspector in the packing department, talked to Maude Roberson u Maude Roberson set the date at May 5 while Wesley testified that it was May 20 The later date seems more accurate since Maude Roberson was uncertain in regard to the date 1122 NATIONAL LABOR RELATIONS BOARD about Wesley. Lalk pointed out that Wesley had joined Local No. 125 and said, "That will not do him any good. We will get him out of here. He will not last long in here, we will get him out of here." Immediately thereafter Elsie Lalk sent five cases of shoes back to Wesley Roberson and Rowland called him to his desk and said, "You raggers up there is going too far with this. All you think about is C. I. O. The C. I. O. don't feed you. They wouldn't feed you if you were starving to death. Instead of you thinking so much about that C. I. O. you better get to work. I got a notion to fire everyone of you." Wesley Roberson testified that he was unable to find anything wrong with the shoes which had been returned to him. Thereafter Maude Roberson protested to Rowland about Elsie Lalk's discrimination against Wesley. She testified that after her protest she had to endure continual insults and slurs from the inspectors about Local No. 125. Rowland admitted that Maude Roberson had complained to him about threats and insults from the inspectors but testified that he had not investigated the complaints or reprimanded the inspectors because he had not heard any of the insults or threats. At about 1 o'clock on June 3 Wesley Roberson was called into the dressing room by Walter Shockley, a lining inspector who was active in distributing loyalty cards, and asked to sign a card. He refused and was-discharged later that day. Wesley Roberson had been working steadily since June 5, 1933; his mother had been working steadily since February 25, 1932. Neither had been laid off during prior slack periods. The respondent contends that its retention of Morris Roberson, another son of Maude Roberson's, in the heel and edge department, although he belonged to Local No. 125, shows that it did not discriminate against Maude and Wesley Roberson because of their membership. That argument is unpersuasive in the light of the facts recited above and the fact that Morris Roberson became a member of the C. S. W. O. Other factors could have made his retention necessary. We find that the respondent discharged Maude and Wesley Rober- son because of their membership in Local No. 125. After his discharge Wesley Roberson earned $5 playing the violin. Jewel Gerling, wife of William Gerling, whose discharge, also on June 3, is discussed below, was discharged by the respondent on June 3. Thereafter Jane Lister, who had been employed at repairing, was transferred to singeing, Jewel Gerling's former position. The respondent advanced no reason for the discharge of Jewel Gerling and the transfer of Jane Lister to her job. While it is true that Jane Lister was an older employee, it is also true that she was not DECISIONS AND ORDERS 1123: a nmember of Local No. 125, while Jewel Gerling was. Since the re- spondent did not follow seniority rules when their application would have favored Local No. 125 members, it cannot be heard to say that seniority was the deciding factor where its application would result in the discharge of a member of Local No. 125. Furthermore, the Gerlings, William and Jewel, were prominent members of Local No. 125 and had been very active during the April strike. It was their home, adjacent to the factory, in which the defendants in the injunction suit met to plan their defense. Their home was also the strike headquarters during the April strike. On May 5 Rowland warned Jewel Gerling to stop talking and stay at her machine. Rowland also informed Jewel Gerling that per- sons who joined Local No. 125 were "signing theirselves out of a job" and that the respondent would move its plant before it would recognize Local No. 125. The attitude of Rowland toward Local No. 125 clearly shows that Jewel Gerling was displaced at singeing because of her promi- nence in that organization. While she had not been employed by the respondent for as long a period as some others who were dis- charged, she had worked in the plant since August 31, 1936, and had not been laid off during the November 1936 slack period. We find that the respondent discharged Jewel Gerling because of her membership in Local No. 125. Gertrude Dearing was discharged on June 3. Her husband wha was a member of Local No. 125 and was discharged on the same day, is not named in the complaint as amended. Mrs. Dearing had been employed by the respondent since February 17, 1936, and had worked through the prior slack periods in the department. At the time of her discharge she was classified by the respondent as working on ragging and sewing on bows. She testified, however, that she merely helped out at ragging and that she was working on "reeds and buckles." On June 3, the day of her discharge, Mrs. Dearing heard Rowland ask Walter Shockley, a lining inspector who was active in circulating the loyalty cards, how many had signed that morning. Shockley replied that nine had signed and that he did not believe more would do so. Rowland replied, "They will all be glad to sign them when they get hungry." That afternoon Gertrude Dearing was discharged. After her discharge, Elizabeth Dehne, assistant forelady in the pack- ing department, told her, "Gertie, the less you say about this union the quicker you are going to get back to work." Mrs. Dearing testified that after she joined Local No. 125, Row- land reprimanded her several times for getting reeds on the floor, a practice which she had always followed before without reprimand. 134068-30-vol ix-72 1124 NATIONAL LABOR RELATIONS BOARD Although Rowland denied that he was motivated by Mrs. Dearing's membership in Local No. 125, his denials are unconvincing in the light of the persecution of members of Local No. 125 elsewhere in his department. We find that the respondent discharged Gertrude Dearing because of her membership in Local No. 125. Charley Jett was discharged on June 3. He is 72 years old and 'had been employed by the respondent since April 14, 1924. At the ,time of his discharge he was employed at ironing shoe linings in the treeing room with two other elderly men, Theodore Lakebrink and William Beckmann. Of the three , only Jett belonged to Local No. 125. William Lakebrink, treeing-room foreman, discharged Jett and, when Jett pointed to his seniority over the other lining ironers, retorted that Jett was discharged "for different reasons." William Lakebrink testified that Jett was discharged because taking turns caused too much disturbance and because his work was unsat- isfactory and had been since his shoulder was operated on. Jett testified that his shoulder had been injured in 1932, that the opera- tion had taken place in 1934, and that he had worked steadily at ironing linings both before and after the operation . If he was ineffi- cient because of that operation , the respondent should have discov- ered it and discharged him long before June 1937 . Nor will the excuse that taking turns caused disturbance suffice. Taking turns was a practice which had been used by the respondent since 1933, and it was abandoned only on the advent of Local No. 125 and then, as the discussion above has shown, only in order to eliminate members of Local No. 125. .Charles Jett was a member of Local No. 125. His sons were very active in it, one of them being a charter member. Under the cir- cumstances, the reasons advanced by the respondent for his dis- charge are not persuasive. We find that the respondent discharged Charles Jett because of his membership in Local No. 125. Robert Sieges 22 was working at hand cut out in the treeing room at the time of his discharge on June 7, 1937 . He wiis a new employee , hired on February 22, 1937 , and, at the time of his dis- charge, the only person on his type of work. The other hand cut out operator, who had been hired after Sieges and also belonged to Local No. 125, had been discharged on June 1. Sieges testified that after his discharge John Lewis, a non-member of Local No. 125 classified as an inspector by the respondent, was transferred to his job. Lewis was an employee of long standing who had worked steadily since before April 1936. 22 Incorrectly called Robert Siges in the complaint. DECISIONS AND ORDERS 1125 Although Sieges testified that two employees told him that he should sign a loyalty card in order to continue working, there is no evidence that hztid he done so he would have been retained. He was hired at a time when the plant was very busy and it was only logical for the respondent to discharge him when work became slack. There is no evidence that he was particularly active in Local No. 125 or that he aroused the respondent's animosity by active participation in the April strike. The person assigned to his job after his dis- charge was an old employee with some years of service in the plant. In spite of the respondent's anti-union animus, we cannot find that that was the reason for his discharge. We find that the respondent did not discharge Robert Sieges because of his membership and activities in Local No. 125. 8. The fastening department During the week ending May 1, 1937, there were 42 employees in the fastening department; 36 of them became members of Local No. 125. That week, which was before Local No. 125 was organized but when its organization was imminent, 7 employees, 4 of whom later joined Local No. 125, were laid off, discharged, or quit. Be- tween May 1 and June 26, 9 members of Local No. 125 were laid off or discharged, while only one non-member was- so treated. After the signing of the closed-shop contract with the C. S. W. 0. on June 25, 19 Local No. 125 members were discharged for failing to join the C. S. W. 0.; 21 new- employees were hired, 2 non-members and 3 members of Local No. 125 who were willing to join the C. S. W. 0. were recalled to work. None of the other employees who had been laid off or discharged were notified of the availabil- ity of any positions in the plant although most of them were told at their lay-off that they would be recalled. It is noteworthy that only 6 of those employed on May 1, 3 non-members and 3 members of Local No. 125, worked through these hectic weeks in the factory. We are now concerned with the 8 employees named in the com- plaint, as amended, who were discharged before the signing of the closed-shop contract with the C. S. W. 0. The respondent con- tends that these discharges were due to the small amount of work available in the plant. That contention is not supported by the evidence. During the week ending November 7,1936, the respondent employed 40 persons in the fastening department. Although a slack period ensued, the respondent permanently laid-off or discharged but 1 per- son and only 5 suffered lay-offs enduring more than 1 week. When the employment in November 1936 is compared with that in May or June 1937, the difference in policy is clear. As pointed out many 1126 NATIONAL LABOR RELATIONS BOARD times above, that change was due solely to the respondent's desire to thwart the organization of Local No. 125. William Gerling, charter member of Local No. 125 and a defend- ant in the respondent's injunction suit, had been working for the respondent since 1923. He worked steadily at roughing from Sep- tember 19, 1932, until June 3, 1937, when Arthur Farrar discharged him, saying that Jannings had ordered it. With Gerling, Jannings adopted the same tactics that he em- ployed with Jesse Crews, whose discharge is discussed above. On May 4, 1937, Jannings called Gerling into his office, locked the door, and told him that the respondent would never recognize Local No. 125. Jannings went on to say that he knew that Gerling and his wife were busy signing people up for Local No. 125 and that Gerling should think about his wife and children. The conference continued in that vein and lasted for more than an hour. After this meeting, Gerling's activities on behalf of Local No. 125 continued and on June 3 he was discharged. It is evident that Gerling was discharged because of his refusal to take Jannings' broad hint about his Local No. 125 activities. The respondent's contention that he was discharged because of slack work is not supported by the evidence. Gerling had worked through prior slack periods in the plant and on June 2, the day before his discharge, Farrar had ex- pressed his approval of Gerling's work by telling him that he pre- ferred his work to that of Jack Martin,22a another rougher who was retained after Gerling's discharge. We find that the respondent discharged William Gerling because of his membership in Local No. 125. After his discharge, Gerling earned $2.10 as a building laborer. William Collins began his last period of employment with the re- spondent on March 11, 1932. He was laid off on May 1, 1937, and joined Local No. 125 upon its organization the following week. Col- lins had been very active in the April strike and was named as a de- fendant in the respondent's injunction suit filed at that time. Collins was one of two relasters employed by the respondent, each of whom was a member of a team of 7 employees in the fastening department. He testified that before May 1 there was not enough work to keep both teams busy but they had been dividing the work between them. On May 1, 4 members of Collins' team were laid off and told that they would be recalled when work increased. The respondent contends that this lay-off was due to slack work. Al- though the evidence shows that Collins had been employed through prior slack seasons in the plant, and despite the respondent's known antipathy toward the leaders of the April strike, we shall adopt that 22. Called Leonard Martin in Board Exhibit No 38-E DECISIONS AND ORDERS 1127 contention because Local No. 125 was not yet organized and because other persons not prominent during the April strike were also laid off. However, we cannot view the events of the workweek ending July 2 as equally innocent . On June 28 the respondent discharged James Barrett, the other relaster , because of his failure to join the C. S. W. O. It immediately hired a new relaster without so much as notifying Collins of the availability of the position . The respondent seeks to excuse itself on the ground that since he belonged to Local No. 125, Collins would not have joined the C. S. W. O. and thus made himself eligible to be employed . However the fact is, as we point out later, that the contract was invalid and was signed for the pur- pose of discriminating against members of Local No. 125. As such, it cannot be used as a defense to charges of discrimination under it. We find that the respondent refused to reinstate William Collins during the workweek ending July 2, 1937, because of his membership in Local No. 125. In addition to the persons whose discharges are discussed indi- vidually above , Lester Brinkman , Ira Pierce , Ervin Miller , and Wil- son Kinkeade, are named in the complaint as amended as having been discharged in this department on June 3 because of their membership in Local No. 125. All were victims of the respondent's policy of aban- doning the system of taking turns and eliminating members of Local No. 125. We find that the respondent discharged them because of their membership in Local No. 125. 9. The sole-fitting department On May 1, 1937, there were 27 employees in the sole -fitting depart- ment, 2 of whom had been hired during the week ending April 24, 1937. During the following weeks, 17 employees, 13 of whom had been working for the respondent since before April 1936, joined Local No. 125. Between May 1 and June 26 six Local No. 125 members were discharged or laid off while no non -members were so treated. On June 28, 8 additional members of Local No. 125 were discharged. During the week ending July 3, 9 new employees were hired and 1 member of Local No. 125, who joined the C. S. W. 0., was recalled. The respondent attributes the discharges before June 26 to the lack of work in the plant and those on June 28 to the closed-shop contract with the C. S. W. O. We are now concerned only with the two mem- bers of Local No. 125 laid off before June 26 and named in the com- plaint as amended . The discharges on June 28 will be discussed hereinafter. When the respondent's policy in November 1936 is compared with that adopted in May and June 1937 the discrimination against Local No. 125 members becomes apparent . In November 1936, when as 1128 NATIONAL LABOR RELATIONS BOARD shown above the respondent had less work to be done that it had in May and June 1937 , there were 25 employees in the fitting department, 24 of whom worked throughout November and December by taking turns. In May and June 1937, the members of Local No. 125 were laid off and discharged as shown above , while the non-members were retained at their jobs . The heavy proportion of Local No . 125 mem- bers discharged shows that the respondent abandoned the system of taking turns in order to rid itself of members of Local No. 125. We therefore find that the respondent discharged Homer Pierce on June 16 and Clyde Rowden on June 21 because of their membership in Local No. 125. 10. Conclusions in regard to the discharges We find that by discharging the persons named in appendices A and D , the respondent has discriminated in regard to their hire and 'tenure of employment, thereby discouraging membership in Local No. 125, and has interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. We further find that by refusing to reinstate Harold Tschappler, Clara Henderson, and William Collins during the workweek ending July 2, 1937, the respondent has discriminated in regard to their hire and tenure of employment , thereby discouraging membership in Local No. 125, and has interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. We find that by discharging the persons named in appendix B the respondent has not discriminated in regard to their hire and tenure of employment to discourage membership in Local No . 125. The alle- gations of the complaint with respect to them will be dismissed. In addition to the persons whose discharges have been discussed above, John Henderson , Dewey Koffenberg , and Lizzie Rogers were named in the complaint, as amended, as having been discharged by the respondent because of their membership in Local No. 125. Since they did not testify at the hearing, the complaint as to them will be dismissed without prejudice. C. The refusal to bargain collectively 1. The appropriate unit The complaint alleged and Local No. 125 contended that all produc- tion and maintenance employees at the Hambro plant, excluding office employees, and foremen, foreladies , and other persons employed in a supervisory capacity, constitute a unit appropriate for the purposes of collective bargaining. The respondent did not object to a unit so defined, but the C. S. W. 0., although it was not represented at the hearing, indicated through the testimony of its officers that it desired DECISIONS AND ORDERS 1129 a unit consisting of all of the respondent's employees at Hambro with the exception of foremen and foreladies. We think the unit, as defined in the complaint, is appropriate. The office employees are distinct from the production and maintenance employees. They work in a different part of the plant; their duties and conditions of work are in numerous respects different from those of the other employees. The foremen and foreladies should be ex- cluded from a unit of production and maintenance employees at the request of the labor organization involved, because of their power to hire and discharge and because they constitute a part of the mana- gerial force whose interests may conflict with those of the other em- ployees in the unit. The other supervisory employees, namely floor- girls and assistant foremen, although they lack power to hire and discharge, supervise the work of the employees under them and are a part of the managerial force. They should be excluded from a unit of production and maintenance employees. We find that the production and maintenance employees of the respondent at the Hambro plant, excluding office employees, foremen, foreladies, and other persons employed in a supervisory capacity, constitute a unit appropriate for the purpose of collective bargaining and that such a unit insures to the employees of the respondent the full benefit of their right to self-organization and collective bargain- ing and otherwise effectuates the policies of the Act. 2. Representation by Local No. 125 of a majority in the unit The respondent's pay roll for the week ending May 15, 1937, shows that there were a maximum of 640 persons in the unit defined above.23 However, before that week the respondent had started its attack on Local No. 125 and, as we have found above, had discharged 19 em- ployees because of their membership in Local No. 125. Since persons who cease work because of an unfair labor practice retain their status as employees under Section 2 (3) of the Act, those 19 must be counted as employees of the respondent during that week, thus increasing the number in the unit to 659. At the hearing Local No. 125 presented applications for member- ship which were available for inspection by the respondent. While many of the applications did not show the date on which they had been signed by the applicant, 337 of them were stamped as received at the office of United Shoe Workers of America in Boston, Massachusetts, on May 18, 1937, and must therefore have "Included in this 640 are a number of employees who were shown by testimony at, the hearing to be floor girls or assistant foremen, although they were not classified as such on the respondent's pay roll. For the purposes of our discussion however we shall adopt 640 since that is the number the pay roll shows were employed in the unit on May 15. 1130 NATIONAL LABOR RELATIONS BOARD been mailed from Union, Missouri, on or before May 16. All of the 337 persons signing those cards are included in the unit defined above : -318 appear on the respondent's pay roll for the week ending May 15, while the remaining 19 were discharged by the respondent before that ,date because of their membership in Local No. 125. Furthermore, the cash sheet of Local No. 125 for May 15, shows that 361 persons had paid their initiation fee before that date; 313 of these appear on the respondent's pay roll for the week ending May 15, while 19 had been discharged because of their Local No. 125 membership, making a total of 332 members in the- unit who had paid their initiation fee. It is therefore clear that on May 17, 1937, Local No. 125 represented a majority of the employees in the appropriate unit as defined above. Although the C. S. W. 0. claimed to represent a majority of the employees on June 25, no proof of its majority was introduced at the hearing and the C. S. W. 0. membership was obtained with the aid of the respondent's unfair labor practices, as we find below. In order to effectuate the policies of the Act and to restore the situation as it existed at the time of the refusal to bargain, we shall disregard the effects of the unfair labor practices on Local No. 125's majority. We find that on May 16, 1937, and at all times thereafter Local No. 125 was the duly designated representative of a majority of the employees in the appropriate unit and, pursuant to Section 9' (a) of the Act, was the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates Of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain When requested to meet Local No. 125's bargaining committee on May 17, Hart's first objection was that the members of the committee were not employed by the respondent. When the futility of that objection was pointed out to him, he asked Local No. 125 to submit a list of its members to prove its majority. In view of the wholesale discharges, the refusal of Local No. 125 to submit a list of its mem- bers was entirely reasonable. Turner then proposed a consent elec- tion to be conducted by the Board but Hart refused to accede to any method aside from submission of a membership list and refused even to see the committee. The proposal of Local No. 125 was fair and reasonable and Hart presented no objection to it, but insisted instead upon a method highly objectionable to Local No. 125. Under the circumstances, the respondent's duty to bargain included a duty to cooperate with Local No. 125 to a reasonable extent to enable it to prove its majority. When Hart's actions at this time and on June 1, DECISIONS AND ORDERS 1131 when Local No. 125 again asked for bargaining rights, are compared with the alacrity with which he jumped at the chance to meet the C. S. W. O. committee and to sign a closed-shop contract with it, it becomes clear that he was not chiefly worried about Local No. 125's majority but was merely seeking to delay negotiations as much as possible to enable the respondent to organize opposition to Local No. 125 and to destroy its majority. The respondent's alleged concern over Local No. 125's status cannot, therefore, justify its refusal to meet with the Local No. 125 committee and to recognize Local No. 125 as the exclusive representative of its employees. Since Local No. 125 was the exclusive representative of its employees, it was incumbent- upon the respondent to recognize it as such. The respondent's re- fusal to do so and its subsequent recognition of the C. S. W. O. as exclusive representative constitute a refusal to bargain collectively. We find that the respondent, on May 17, June 1, and at all times thereafter, has refused to bargain collectively with the representatives of its employees within the appropriate unit as defined above. We also find that by such refusal the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. Domination of and interference with the C. S. W. O. The moving spirit and chief progenitor of the C. S. W. O. was Ludy Niebruegge. On April 3, 1937, he returned to Union after several months absence and was employed as a bread salesman. Thereafter he "associated himself" with the Franklin County Tribune where he wrote advertising copy and did other jobs without pay. Niebruegge attended the April 6 meeting in the courthouse, where he heard Hart threaten to manufacture elsewhere the shoes then being made in Union and Jannings suggest that there were people in Union who could organize the employees without outside help. Niebruegge apparently accepted what Jannings said at its face value and took it upon himself to act as organizer. Niebruegge denied having any conferences with Jannings either upon the subject of the formation of the C. S. W. O. or upon any other and took full credit for the organi- zation of the C. S. W. O. In this connection it is noteworthy that Olen Farrell, one of the C. S. W. O. committee and a very unwilling witness for the Board, testified that Ludy Niebruegge attended a meeting in Jannings' office sometime before July 1, although he was unable to remember the exact date. On April 17, Niebruegge's wife went to work in the Hambro plant and thereafter Niebruegge proceeded to arouse some of the employees to their need for combatting Local No. 125. He drew up the loyalty 1132 NATIONAL LABOR RELATIONS BOARD card and arranged for its distribution in the plant; the card authoriz- ing the committee to bargain, which was the basis for the C. S. W. 0. majority claim, was also his creation. Niebruegge wrote or edited the articles attacking Local No. 125 in the Franklin County Tribune, arranged for the publication of the extra edition of that paper, sug- gested to Gardner that the C. S. W. 0. ask for a closed shop, organ- ized the C. S. W. 0. mass meeting on June 24, instructed the speakers as to their remarks at that meeting, and as chairman of the meeting predicted that recognition would be accorded the C. S. W. 0. within 48 hours. From all the testimony it is clear that Niebruegge organ- ized the C. S. W. 0. He was rewarded for his efforts by being hired by the respondent as a sole layer on July 1, although he had had no previous experience in a shoe factory. He testified that Jannings selected him from a group of applicants because he had had a high- school education. The loyalty cards were distributed by employees during working hours in the plant often with the active assistance of foremen. Elgin Bauman testified that Pearl Mohesky, a supervisory employee in the cutting department, asked him to sign a loyalty card. Ray Copeland, one of the C. S. W. 0. committeemen, was ques- tioned one day by his foreman, William Dittman, in regard to his circulation of loyalty cards. When Dittman found out what Cope- land was doing he made no objection. Dittman's seeming apathy was not typical of all the foremen how- ever. Agnes Ekey and Thomas Rowland took an active interest in the success of the solicitors. Helen Altemeyer, floor girl in the fitting department, testified that on June 1 after she had refused to sign a loyalty card at Violet Gardner's request the latter consulted Ekey : Q. Did you have any further conversation with Violet Gardner that day? A. Well, after she left me, Agnes (Ekey) was standing two aisles away in the fitting room, so I followed her up, and as I got up to them I heard Agnes say "What did she say?" So, when she saw me she goes into a hop of some kind, so I won't be able to hear her, up the aisle. And about one thirty that evening [sic] I was sewing some buckles on a machine, and Agnes came and said, "You have got a lot of nerve telling these girls they are darn fools for signing these cards." I said, "whoever told you that is a damn liar." She said, "If I thought you told them that I would have to be afraid of you." She said, "I have told you too much anyway." She said, "I didn't think that you would -be against me." . . . Rowland took a similar interest in whether or not people signed loyalty cards. Gertrude Dearing testified to overhearing a conversa- DECISIONS AND ORDERS 1133 tion between Rowland and Walter Shockley on the morning of June 3: Q. Were you close enough so.that you could hear the conver- sation in full? A. A rack between us, I could hear it all. Q. Just that two feet away? A. Yes, sir. Q. All right. Will you give us the conversation? A. Well, Mr. Rowland came up-Tom Rowland came up there like he was in a hurry, and he ran up there, and he says, "Well, Shockley, how many did you get this morning?" And Walter (Shockley) says, "I got nine." He says, "I believe that will be about all we can get on those white cards." "Oh," he says, "they will all be glad to sign them when they get hungry." Although both Ekey and Rowland denied these conversations, their denials are not convincing. Both showed themselves to be inexorable opponents of Local No. 125 by the discharges in their departments, which are discussed above. The above testimony shows that the respondent, by its foremen and foreladies, encouraged the circulation of the loyalty cards and gave its employees to understand- that it was the better part of valor for them to sign. When the fact that the respondent obtained a list of loyalty card signers on June 12 is considered together with the discharges of Local No. 125 members theretofore, the respondent's connection with these beginnings of the C. S. W. O. becomes even clearer. It is noteworthy that no retaliatory action was taken by the respondent against the leaders of this movement while the leaders of Local No. 125 were discharged in a vicious attack on that organization. The card authorizing a committee to bargain for the signer'24 on which the C. S. W. O. based its claim of majority representation, was based on the prior loyalty card and was distributed almost exclu- sively to loyalty-card signers. Although many of these cards were signed on the night of June 22 outside of the plant and before work the next morning, that fact does not obliterate the stigma attached 14That card reads as follows : I, the undersigned , employee of the Hambro plant of the Hamilton , Brown Shoe Co. do hereby designate Raymond Gardner, Clarence Stuckenschneider , Walter Shockly [sic], Ray Copeland , Alphonse Lakebrink , Olen Farrell , Thurston Farrell, George Lalk, Helen Martin, Violet Gardner, and Janie Lakebrink as a committee to act as my bargaining agent to deal with said Hamilton Brown Shoe Co and to represent the employees of said Hambro plant on all matters affecting grievances [sic], labor disputes , wages , rates of pay, hours of employment, conditions of work or in any manner affecting the harmony and general welfare of said employees in their relationship with said company. This activity being for the benefit of all employees , it is understood that the committee will serve without pay and that my signature hereto does not obligate me to pay any dues or other charges. Signed-------- ---------------- 1134 NATION AL LABOR RELATIONS BOARD to the C. S. W. 0. by the methods used in the circulation of loyalty cards. The same persons were behind both cards and the employees recognized the connection. In addition to the support directly accorded the C. S. W. 0. in the circulation of its cards, the respondent's discouragement of mem- bership in Local No. 125 by the discharges and lay-offs as set forth above created a situation powerfully favorable to the organization of the C. S. W. 0. The haste with which the respondent met with the C. S. W. 0. committee and signed a contract with the C. S. W. 0., without re- quiring proof of the C. S. W. 0. majority, shows its anxiety to fore- close Local No. 125 and to establish the C. S. W. 0. as the repre- sentative of its employees. The respondent's contention that August Meyer obtained the list of loyalty-card signers on June 12 in order to prove the C. S. W. 0. majority is without foundation. The loy- alty cards were not authorizations to bargain, or applications for membership in any labor organization and the leaders of the C. S. W. 0. did not intend them to be such. Although they were supposed to express the signer's opposition to Local No. 125, any employee not prominent in Local No. 125 was privileged and solicited to sign one. Many members of Local No. 125 were among the signers because of the respondent's very evident bias in favor of the signers. Indeed, the leaders of Local No. 125 instructed their members to sign loyalty cards in order to retain their positions in the plant. The respondent's preference for the C. S. W. 0. is further indi- cated by its willingness to sign a closed-shop agreement with it while refusing even to meet with Local No. 125. This becomes clear when the respondent's negotiations with another local of United Shoe Workers of America at its Poplar Bluff, Missouri, plant are consid- ered. At the oral argument before the Board, Hart stated that at that plant the respondent had refused to sign a closed-shop agree- ment with United Shoe Workers of America after a 5-week strike although all of the employees belonged to United Shoe Workers of America. When negotiating with the C. S. W. 0. in regard to the Hambro plant, the respondent agreed to the closed shop after 5 or 10 minutes discussion. It is apparent from the alacrity with which the respondent agreed to the closed shop with the C. S. W. 0. that the respondent was seeking to eliminate Local No. 125 and firmly establish the C. S. W. 0. as the representative of its employees. Upon all the evidence, we conclude that the C. S. W. 0. is a com- pany-inspired and company-dominated organization. Although the connection between Niebruegge and the respondent is not wholly es- tablished by the evidence it is clear that Jannings suggested the formation of the C. S. W. 0. at the April 6 meeting, that cards were circulated by the C. S. W. 0. in the plant during working DECISIONS AND ORDERS 1135 hours without objection by foremen and at times with their active assistance , that, as described below, at least one employee was discharged even before the signing of the closed-shop contract for refusing to join the C. S. W. 0., and that the respondent finally, on June 28, rushed into a closed-shop contract with the C. S. W. 0., and pursuant to the contract discharged all who did not belong to that organization in order to establish it firmly in the plant. The way for the C. S. W. O. was moreover prepared by the respondent's campaign against Local No. 125 during May and June, in which many employees were discharged for membership in the latter union. We find that the respondent has dominated and interfered with the formation and administration of the C. S. W. O. and has con- tributed support to it and has thereby interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. F. The closed-shop contract and its consequences On June 25 the respondent and the C. S. W. O. agreed to a con- tract requiring all of the respondent's employees at the Hambro plant to be members of the C. S. W. O. On June 28 that contract, which had been announced in the June 25 extra edition of the Franklin County Tribune, was formally signed and the respondent took steps to put it into effect by circulating the following notice in the plant: 6/28/37. The Hamilton Brown Shoe Company has signed a contract agreeing to recognize the Commercial Shoe Workers' organiza- tion as its [sic] exclusive bargaining agent with the employees of the Hambro plant, and agreeing to operate the plant as a closed shop. Therefore employees who are not members of the organiza- tion will not be able to work here, starting Tuesday, June 29, 1937. As a result of the signing of the contract and the circulation of the above notice approximately 100 employees did not return to work on June 29. The contract is void and of no effect unless it comes within the pro- viso to Section 9 (3) of the Act permitting closed-shop contracts. It is clear that the C. S. W. O. does not fall within that proviso, which reads: ... nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act as an unfair labor practice) to require as a condition of employment 1136 NATIONAL LABOR RELATIONS BOARD membership therein, if such labor organization is the representa- tive of the employees as provided in section 9 (a), in the appropriate collective bargaining unit covered by such agreement when made. Under this proviso, and in view of our findings in Section III D, above, the contract here in question is invalid. The C. S. W. O. was not the free choice of a majority of the employees in the appro- priate unit when the contract was signed and is a labor organiza- tion which has been assisted by the respondent's unfair labor prac- tices. The contract between the C. S. W. O. and the respondent is therefore void and of no effect and is no justification for the dis- charges which took place pursuant to its terms. At the hearing counsel for the respondent and for the Board stipu- lated that the persons named in paragraph 7 of the amended com- plaint, as amended, whose names are incorporated in appendices C and E, with the exception of Wilbert Bartel, Florence French, G. L. Nappier,25 Minnie Means, and Ira Means,'° left the respondent's em- ploy on June 29 because of the closed-shop contract with the C. S. W. O. The respondent contends that by so doing, they quit their jobs. We cannot adopt that contention. The notice which the re- spondent circulated on June 28 clearly informed the employees that their employment was terminated unless they joined, the C. S. W. O. The respondent had no right-to make such a requirement; its action was a measure designed to encourage membership in the C. S. W. O. and discourage membership in Local No. 125 and constituted a discharge of the non-members of the C. S. W. O. We find that the respondent discharged the persons named in appendices C and E, with the exception of Minnie Means, Ira Means, Wilbert Bartel, G. L. Nappier, and Florence French, because of their non-membership in the C. S. W. O. Minnie Means started work for the respondent on August, 1935. At the time of her discharge on June 23, 1937, she was employed as a top stitcher. On the morning of June 23, Violet Gardner, a reinforcer in the fitting room, asked Minnie Means to sign the card naming a collective bargaining committee which was used as an application for member- ship in the C. S. W. O. Gardner stated that everyone had to sign the card because the factory was going to be a closed shop. Means refused, saying that she did not like the committee. Later that morn- ing Ekey came to the machine at which Means was working and, zs Also called Clifton Nappier in the stenographic report of the hearing. R6 Although Ira and Minnie Means were not expressly excepted from the stipulation, their testimony indicates that neither counsel for the Board nor counsel for the respondent intended to include them in the stipulation. DECISIONS AND ORDERS 1137 sending away another girl who was standing there, told Means she wanted to talk to her . Means' version of that conversation follows : A. She came down and she ordered another girl away from my machine and she said she wanted to talk to me, and she said I had a lot of nerve talking about these people that was on that. card, and said they was better than I was, that I was ignorant and uncivilized and just kind of trash, like I was, and she said I had to either sign it or get out, I could take my damned union and get out of there. After this conversation Means left the plant, assuming - that she, had been discharged. Ekey testified that she reprimanded Means for telling Janie Lake- brink that she was uneducated and ignorant and that *nothing was, said about any union . The respondent also called, with regard to this- conversation, Bernice Breeden, a former member of Local No. 125 who testified that she and her husband left Local No. 125 and joined the C. S. W. O. "to better ourselves". She testified that Ekey and Means were talking about someone's education and about the appli- cation card which Means refused to sign . Although on direct exami- nation she stated that Ekey had said that Means could join the- C. S. W. O. or not as she wished, on cross-examination Breeden ad- mitted that she was not sure what was said except that Ekey and, Means talked about someone 's education and the application card.. Breeden testified further that she worked next to Means and that Janie Lakebrink had not been in the department that morning. There is no corroboration for Ekey's story that Means had insulted Janie Lakebrink. On the whole, we find Minnie Means' testimony- persuasive. We find that the respondent discharged Minnie Means on June 23. because of her refusal to join the C. S. W. O. Ira Means was discharged by the respondent on June 25, ostensibly because of poor work. Means and Thurston Farrell worked at con-- tiguous machines sewing soles, Means sewing the left shoe and Farrell the right. Means had expressed his opposition to the C. S. W. O. to. Thurston and Olen Farrell, both of whom were members of the bar- gaining committee named on the application for membership in the C. S. W. O. On June 24 Means attended the organization meeting of the C. S. W. O. in the courthouse to which all employees were invited. At that meeting he asked questions in regard to the selection of the committee named on the C. S. W. O. application card and was ejected from the meeting after telling the persons there that they were- only hearing one side of the story. On June 25 Thurston Farrell left his machine when Hart arrived at about 10: 00 a. in. and did not re-- 1138 NATIONAL LABOR RELATIONS BOARD turn until after lunch . Upon his return , Farrell told Means that the plant was a C. S. W. 0. closed shop and that Means would have to join the C. S. W. 0 . in order to remain at work. At Means' request, Hamstein , the foreman of the department , promised to check the 'veracity of that statement. Thereafter, Hamstein returned some im- properly sewed shoes to Means and told him that he was discharged. All Hamstein could reply to Means' accusation that he was being dis- charged because of Local No . 125 was, "I won't argue with you." Means testified that he had been sewing soles for 3 years and that he was as efficient as the other employees on that job . Hamstein testi- fied that Means had been employed at lock stitch sewing for 11/2 years and that he had always been a poor worker. Hamstein's story is not credible in view of the fact that Means had been employed by the respondent since January 29 , 1929, and had not been laid off during prior slack periods. Hamstein also objected to Means on the ground that he had refused to cut the channels back in shoes and, therefore, was unable to sew the insole properly. Means testified , however, that the channels were supposed to be cut before the sewers received the shoes and that he and Thurston Farrell had decided to confine themselves to sewing and to stop cutting channels. Although both Farrell and Means lived up to this agreement , Farrell, a prominent member of the C. S. W. 0., was not discharged. It is clear from the above that the objections advanced by the re- -spondent to Means' work are without foundation and were merely trumped up in order to eliminate Means . The closed-shop contract had already been agreed upon at the time of his discharge , and Means had shown where he stood at the meeting the night before and by .asking Hamstein to inquire about the contract. We find that the respondent discharged Ira Means because of his non-membership in the C. S. W. 0. TVilbert Bartel 27 had been working for the respondent since 1930. His last period of employment began on February 4, 1935, in the lasting department. Bartel and Fred Copeland had been taking turns on their job, by working alternate weeks during June 1937. Copeland worked the week ending June 26 and when Bartel reported for work on June 28 for his turn, Raymond Gardner, who had charge of assigning work in the department , met him. Bartel asked about the applications for the C. S. W. 0.; Gardner replied that anyone who was not a member of the C. S. W. 0. was discharged and that since Bartel was not a member he was discharged. Upon receiving this information Bartel left the factory. That day respondent cir- culated a notice announcing its intention of enforcing the closed shop n Also called Wilbur Bartel. DECISIONS AND ORDERS 1139 the next day. Bartel's case is no less :a discharge because he, left before that notice was circulated. We- find that the respondent discharged Wilbert Bartel , because of his non-membership in the C. S. W. O.. After his, discharge Bartel earned $21 doing odd jobs,and working on a.•farm.^ G. L. Nap pier was last employed by the respondent on ;June 25, 1937, in the sole-fitting department. On June 25, after, the meeting between Hart and the C. S. W. 0., Olen • Farrell, a member of the C. S. W. O. committee, told Nappier of the closed-shop contract in the presence of William Define, foreman of the department, and informed him that thereafter only remembers of the C. S. W. O. would be employed by the respondent. Define did not contradict `Farrell's statements. After work on June 25 Nappiei read of the closed-shop contract in the copies of the Franklin County Tribune which'-were distributed at the plant. The next day, Saturday, the plant did not operate, and because of what he had heard about the closed shop, Nappier failed to report for work on Monday, June 28. On Tuesday morning Nappier appeared at the plant, but Define informed him that since he did not belong to the C. S. W. O. he could not work. We find that the respondent discharged G. L. Nappier on June 29 because of his non-membership in the C. S. W. O. Florence French had been working for the respondent intermit- tently since 1926. Darin; May 1937 she was laid off, but on June 9 she was recalled to work after signing a loyalty card, and remained at work until June 28. On June 28, Florence French received the notice of the closed-shop contract which the respondent circulated in the plant. She did not join the C. S. W. O. and did not return to work thereafter. We find that the respondent discharged Florence French because of her non-membership in the C. S. W. O. We find that by discharging the persons named in appendices C and E because of their non-membership in the C. S. W. 0., the re- spondent has discriminated in regard to their hire and tenure of employment, thereby discouraging membership in Local No. 125, and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. F. Interference, restraint, avid ,coercion In addition to the discharges, the domination of and interference with the C. S. W. 0., and the refusals to bargain with Local No. 125, all of which are set forth above, the respondent engaged in other activities designed to discourage membership in Local No. 125 and to stifle collective activity among its employees. Many of these have been set forth above, but other incidents which show the extent to which the respondent went are worthy of consideration. 134068-39-vol rx-73 1140 NATIONAL LABOR RELATIONS BOAR]) During the April strike Hart and Janniiigs spoke to a meeting of the employees. Hart threatened to manufacture shoes elsewhere if the strike continued. and Jannings attacked outsiders who "inter- fered" in the organization of the employees. The foremen in the plant also attacked Local No. 125; Agnes Ekey and Tom Rowland were the most vociferous and attacked, Local. No. 125 at every opportunity. Iva Blankenship testified that she heard Ekey tell one of the employees in her department: I know everybody that belongs to the union. When they join I get a slip of paper with their name on it. Helen Coleman testified that as she was going to it meeting of Local No. 125 on May •22, she noticed Grace Leiglit and O'Tillie Immicus sitting in a car in front of the building, taking down the names of the employees as they entered. On May 24, when Helen Coleman came to work, the two girls were talking to Ekey and showing her a slip of paper. When Helen Coleman came in they pointed her out to Ekey. Although Ekey denied the above testimony, we consider the testimony of Iva Blankenship and Helen Coleman more reliable. Many other statements of foremen antagonistic to Local No. 125 are in the record in addition to those set forth in connection with other unfair labor practices above, some denied and some not. It is clear that the foremen were determined to prevent the organization of Local No. 125 and that in this they were aided and abetted by C. J. Jannings, the superintendent of the plant, and Luke E. Hart, the president of the respondent. We find that by making statements antagonistic to Local No. 125, by speeches opposing the organization of the employees and threaten- ing to move the plant, and by spying on a meeting of Local No. 125, the respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III ,.bove, 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. V. THE REMEDY We have found that the respondent dominated and interfered with the formation and administration of the C. S. W. O. and contributed support to it. 'In order to remedy these unfair labor practices and DECISIONS AND O1tDERS 1141 effectuate the policies of the Act, we find it necessary that the re- spondent not only cease and desist from such domination and inter- ference, but also cease giving effect to its closed-shop contract with the C. S. W. 0. and withdraw all recognition from the C. S. W. 0., completely disestablishing it as the representative , of any of its employees for the purposes of collective bargaining. Since a majority of the, employees within the appropriate unit had on May 17 designated Local No. 125 as their bargaining agent, we shall order the respondent to bargain collectively with Local No. 125 upon request. In order to effectuate the policies of the Act, the Board will disregard any effect the unfair labor practices may have had upon the status of Local No. 125 as majority representative and will restore the situation existing at the time of the refusal to bargain as far as that is possible. Since we have found that the respondent engaged in unfair labor practices by discharging the employees named in appendices A, C, D, and E, and by refusing to reinstate Harold Tschappler, Clara Henderson, and William Collins, we shall order their reinstatement to their former or substantially equivalent positions. Such rein- statement shall be effected in the following manner: All employees hired during or after the discharges here in question shall, if neces- sary to provide employment for those to be offered reinstatement, be dismi :sed. If, thereupon, by reason of a reduction in force there is not sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining employees in accordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees remaining after such distribution, for whom no euiployinent is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such- list, be offered employment in their former or in substantially equiva- lent positions, as such employment becomes available and before other persons are hired for such work. We shall also order the respondent to make whole Harold Tschap- pler, Clara Henderson, William Collins, and the discharged employees named in appendices A and C for any loss of pay they have suffered by reason of the discrimination against each of them, respectively, by payment to each of a snni equal to the amount which he normally would have earned as wages from the date of the discrimination against him to the date of the offer of reinstatement or placement 1142 NATIONAL LABOR RELATIONS JlOARD upon the preferential list in accordance with the method set forth, above, less his net earnings 28 during said periods. We shall further order the respondent to make whole the discharged employees named in appendices D and • E for any loss of pay they have suffered by reason of the discrimination against each of them, respectively, but since the Trial Examiner dismissed the complaint in so far as it alleged that their discharges were unfair labor prac- tices, we shall exclude from the computation of their back pay the period from the date of service of the Intermediate Report, October 22, 1937, to the date of the Order herein. The payment to each of the employees named in appendices D and E shall therefore be a sum equal to the amount which each would have earned as wages from the date of his respective discharge to the date of service of the Intermediate Report (October 22, 1937) and from the date of this Order, to the date of the offer of reinstatement or placement upon a preferential list in accordance with the method set forth above, less his net earnings 29 during said periods. In his Intermediate Report the Trial Examiner found that the respondent had discriminated against Lawrence Holliday and Edward Pierce by discharging them on June 28, 1937, because they refused to join the C. S. W. O. Neither Holliday nor Pierce were named in the amended complaint and consequently were not included in the stipu- lation mentioned above; nor did they testify at the hearing. We shall make no finding or order in regard to Lawrence Holliday and Edward Pierce. Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. United Shoe Workers of America, Local No. 125, and The Com- mercial Shoe Workers' Organization of Union, Missouri, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and admin- istration of The Commercial Shoe Workers' Organization of Union, Missouri, and contributing support to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Harold Tschappler, Clara Henderson, William Collins, and 28 By "net earnings" Is meant earnings less expenses, such as for transportation, room, and board , incurred by an employee in connection with obtaining work and work- ing elsewhere than for the respondent which would not have been incurred but for the discrimination against him and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpen- ters and Joiners of America, Lumber and Sawmill Workers Union , Local 2.590, 8 N. L. R B 440 ii See footnote No. 28 DECISIONS AND ORDERS 1143 the employees named in appendices A, C, D, and E, and thereby dis- couraging membership in United Shoe Workers of America, Local No. 125, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of-Section 8.,(3) of the Act. 4. The production and maintenance employees of the respondent at its Union, Missouri, plant, excluding office employees, foremen, foreladies, and other persons employed in a supervisory capacity, constitute a unit appropriate for the purposes of collective bargain- ing, within the meaning of Section 9 (b) of the Act. 5. United Shoe Workers of America, Local No. 125, was on May 17, 1937, and at all times thereafter has been, the exclusive representa- tive of all the employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, within the meaning of Section 9 (a) of the Act. 6. By refusing to bargain collectively with United Shoe Workers of America, Local No. 125, as the exclusive representative of the em- ployees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 7. 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 (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 9. By discharging the persons named in appendix B, the respond- ent has not engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Hamilton-Brown Shoe Company, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of The Commercial Shoe Workers' Organization of Union, Missouri, or with the formation or administration of any other labor organization of its employees, or contributing support to any such labor organiza- tion ; (b) Recognizing The Commercial Shoe Workers' Organization of Union, Missouri, as the representative of any of its employees for 1144 NATIONAL LABOR RELATIONS BOARD the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or condi- tions of work; (c) Giving effect to its contract with The Commercial Shoe Work- ers' Organization of Union, Missouri; (d) Refusing to bargain collectively with United Shoe Workers of America, Local No. 125, as the exclusive representative of the production and maintenance employees at its Union, Missouri, plant, excluding office employees, foremen, foreladies, and other persons em- ployed in a supervisory capacity; (e) Discouraging membership in United Shoe Workers of America, Local No. 125, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment because of membership or activity in United Shoe Workers of America, Local No. 125, or any other labor organization of its employees; (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Harold Tschappler, Clara Henderson, William Collins, and the employees named in appendices A, C, D, and E immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth in the section entitled "Remedy" above, placing those employees for whom employment is not imme- diately available upon a preferential list in the manner set forth in said section and thereafter offer them employment as it becomes available; (b) Make whole Harold Tschappler, Clara Henderson, William Collins, and the employees named in appendices A and C for any loss of pay they have suffered by reason of the discrimination against them, by payment to each of them, respectively, of a sum of money equal to that which each would normally have earned as wages dur- ing the period from the date of the discrimination against him to the date of the offer of reinstatement or placement upon the preferential list required by paragraph (a) above, less his net earnings during said period ; DECISIONS AND ORDERS 1145 (c) Make whole the employees named in appendices D and E for any loss of pay they have suffered by reason of their respective discharges, by payment to each of them, respectively, of a sum of money equal to that which each would normally have earned as wages from the date of the discrimination against him to the date of service of the Intermediate Report (October 22, 1937) and from the date ,of this Order to the date of the offer of reinstatement or placement upon the preferential list required by paragraph (a) above, less his net earnings during said periods; (d) Withdraw all recognition from The Commercial ' Shoe , Work- ers' Organization of Union, Missouri, as the representative of any of its employees for the purpose of dealing with the respondent con- ,cerning grievances, labor disputes, wages, rates•of pay, hours^of em- ployment, or conditions of work, and completely disestablish The Commercial Shoe Workers' Organization of Union, Missouri;, as such representative; I (e) Upon request, bargain collectively with United Shoe Workers of America, Local No. 125, as the exclusive representative of the pro- duction and -maintenance employees at its Union, Missouri, plant, 'excluding office employees, foremen, foreladies, and-other persons em- ployed in a supervisory capacity, in respect to wages, rates 'of pay, hours of employment, or other conditions of work; (f) Post immediately in conspicuous places in its plant at'Union, Missouri, and maintain for a period of at least thirty- (30) consecu- tive days, notices to its employees stating : (1) that the respondent will cease and desist as aforesaid; (2) that the respondent has withdrawn all recognition from The Commercial Shoe Workers' Organization of Union, Missouri, as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or condi- tions of work, and that The Commercial Shoe Workers' Organiza- tion of Union, Missouri, is disestablished as such representative; (g) Notify the Regional Director for the Fourteenth Region in -writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith:' And it is further ordered that the allegations of the complaint with respect to John Henderson, Dewey Koffenberg, and Lizzie Rogers be, and they hereby are, dismissed without prejudice, and those with re- spect to the persons named in appendix B be, and they hereby are, •dismissed. 1146 NATIONAL LABOR RELATION'S BOARD APPENDIX Laura Branson Maudie Faye Breeden Marie Vance Breedon Lillian Brinkman Marvin Clepper Betty Copeland Marie Copeland Sylvia Copeland Delsie Corum Jesse Crews Gertrude Dearing Jewel Gerling William Gerling August Goers Harvey Hafley Laura Halley Robert Henderson Ethel Hendrix Fred Hinson Minnie Hinson Otis Hinson Dorothy Hobelman Ida Hoerath Ellen Holaway Elsie Hults Annie Jett Charley Jett Elmer Jones Isabelle Jones Herman Kinkeade Wilson Kinkeade Leo Koester Robert Kratzchmar Nora Lang Hadley Lewis Ruth Lewis Jewell McEwen A Myrtle Maness Rissie Matthews Allie Meade Ervin Miller Perry Nappier Sylvia Nations Elmer Olten Lydia Olten Helen Peirick George Peirick Lucy Peirick Oscar Peirick Frances Phelps Homer Pierce Ira Pierce Maude Roberson Wesley Roberson Ruby Rodgers Cora Rogers Edna Rogers Mildred Rogers Donald Rowden Edna Rowden Mancel Rowden Guy Shafferkoetter Jesse Shafferkoetter Ernest Smith Sylvia Strickler Stella Thien Catherine Vanderpool Rachel Vincent Myrtle Vorderbruegge Reba Vorderbruegge Elda Watts Jerine Webb Herbert Wilson Mayme Zumwalt APPENDIX B Gladys Holloway Mabel Irwin Viola Jett Bernice Loyd Robert Sieges DECISIONS AND ORDERS I APPENDIX C Helen Altemeyer Marion Anderson Mary Anderson Delia Bade Leona Bade James Barrett Elda Bartel Herbert Bartel Wilbert Bartel Elgin Bauman Charles A. Beckmann Frank Berner George Birkmann Louis Birkmann Iva Blankenship Mittie Breeden Melva Clepper Helen Coleman Fred Copeland Otto Copeland Tony Copeland Virginia Crain Ella Decker Edith Elliston Rae Freise Florence French William Gay Belvia Gerling Mildred Gordon, Rachel Halmich Richard Hake Marie Halley Newton Halley Leo Hellmann Arthur Henderson Ethel Henderson Paul Hendrix Vera Hinson Mary Hoff Clarence Holliday Flora Hollidav Chester Holt Merle Holt Ruth Hood Charlcie Hults Chloe Hults Ed Hults Marie Hults Robert Hults Cora Jackson Olen Jett Troy Jett Bert Johnson Sophia Johnson 'Ralph Klenke Archie Klepper Cornelia Klepper . Edna Klepper Catherine Leach Dorsey Lehnhoff Minnie Lewis Elsie Loyd John Loyd Ray Loyd Ora Luchsinger Cora Lyerla Earl Lyerla Alvin McKinney Buell McKinney Anna Marie Martin Leonard Martin Ira Means Minnie Means Ferd Miller May Musselman Dolcie Nappier G. L. Nappier James Nappier Mamie Nappier Sophie Parker Ruby Ready Agnes Rodgers Earl Rogers Ishmael Rowden Paul Rowden Fred Sammet 1147 1148 NATIONAL LABOR ,RELATIONS BOARD Aloise Scharwarth Oliver Tschappler Arvel Skaggs Mabel Van Leer Bryan Skaggs William -Vorderbruegge Frances Steinkahip - Lena Wideman Harold Steinkamp, - Raney Wilson John Strubberg APPENDIX D Marie Bauman Chester Rogers Lester Brinkman-;. - Clyde Rowden Lester Lang - Harold Wilson APPENDIX E Mildred Bay Olga Johnson Laura Gorg Mary Uhneistall Grace Henderson Iva Wieble