Jones Manufacturing Co.

NEW MADRID MANUFACTURING COMPANY 117 NEW MADRID MANUFACTURING COMPANY, A CORPORA- TION , AND HAROLD JONES, AN INDIVIDUAL, d/b/a JONES MANUFACTURING COMPANY and INTERNATIONAL LADIES ' GARMENT WORKERS UNION , A.F.L. Case No. 14-CA- 698. April 15, 1953 DECISION AND ORDER On September 4, 1952, Trial Examiner Louis Plost issued his Intermediate Report in the above - entitled proceeding finding that the Respondent, New Madrid Manufacturing Com- pany, herein called the Company, had engaged in and was en- gaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative ac- tion, as set forth in the copy of the Intermediate Report attached hereto. He also found that the Company had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the Company filed exceptions to the Intermediate Report and a brief, and the General Counsel filed exceptions, a brief, and a memorandum. The Union and Respondent Harold Jones, an individual, d/b/a Jones Manu- facturing Company, herein called Jones, filed no exceptions-' The Board ' has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed.' The rulings are hereby affirmed .4 The Board has considered the Intermediate Report , the exceptions, the briefs and memorandum, and the entire record in the case, and hereby adopts the Trial Examiner ' s findings , conclusions, and recommendations , with the following additions and modifica - ti ons . i The Company's request for oral argument is denied because in our opinion the record, exceptions, brief, and memorandum adequately present the issues and positions of the parties. 2Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in connection with this case to a three-member panel [Members Houston , Murdock, and Styles]. 3The Company argues that the Trial Examiner demonstrated bias and prejudice in failing to credit witnesses Jerome Morrison , secretary-treasurer oftheCompany , and Harold Jones, and in expressing an opinion that Jones was protected by the Thirteenth Amendment from fulfilling his obligations under the terms of his contract with the Company . While the Board disavows and regards as irrelevant such comments of the Trial Examiner , a careful analysis of the record and the Intermediate Report reveals no bias or prejudice on the part of the Trial Examiner. It is the Board's established principle that a Trial Examiner's credibility findings are entitled to great weight, because in resolving conflicting testimony he is in a position to observe the demeanor of the witnesses . Wood Manufacturing Company , 95 NLRB 633. However, we note and correct the following minor misstatements or inadvertent errors in the Intermediate Report, none of which affects the Trial Examiner 's ultimate conclusions or our concurrence therein: (1) Jerome Morrison did not "change his testimony " when he ex- plained that he did not have his first talks with Portageville businessmen in Portageville but did speak to them outside of Portageville when they came from Portageville to visit him. (2) The Trial Examiner erroneously understood Morrison to have testified that the decision to close the plant in November 1951 was based on an audit made in the following year by the Company's accountant. It is clear from the record that Morrison testified that reliance was placed on an earlier audit made by his brother. 4The Respondents request the dismissal of the complaint on the ground that the General Counsel failed to support the allegations therein. For reasons set forth below, the motions are hereby denied. 104 NLRB No. 8. 283230 0-54-9 1 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. We do not decide, as did the Trial Examiner, that the sales contract between Jones and the Company whereby the latter sold its Malden plant machinery to the former for use in Portageville is not "a real contract" and of no binding effect upon Jones. The Board assumes the validity of the contract. It is clear, however, from the facts detailed in the Intermediate Report that the Company by the terms of the agreement retained substantial control over Jones' operations at Portageville. We conclude that Jones' status is that of a coemployer and partial successor to the Company's Malden plant business. The Trial Examiner found, and we agree, that Jones had knowledge of his predecessor's unremedied unfair labor practices at the time heagreedtotake over the business. We therefore find that both the Company and Jones are Respond- ents in this case and both are jointly and severally liable for the unfair labor practices found herein.' 2. In view of the foregoing and the fact that the Malden plant was operated as a branch of the Company which, during the period from March 25, 1951, to- March 25, 1952, received in manufacturing fees more than $ 25.,000 for goods shipped to points outside the State of Missouri, we find that the Respond- ents are engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this case.6 3. We agree with the Trial Examiner that the Company independently violated Section 8 (a) (1) by the following conduct: (1) Harold Jones' threats to Rachel House at the "food locker plant" before its operations ceased on June 23 , 1951 , to Nora Skaggs at the "air base plant" toward the end of July 1951, and to Dollie King at her home on October 30, 1951, that the plant would be closed and moved away if the Union won the election; (2) the statement of Supervisor Ruth McCarver to Tylene Butler when the "air base plant" was opened on July 10, 1951, that Eris Stricklin was fired because she was so strong for the Union; (3) Jones' unlawful interrogation of Mildred Canady, Geraldine Corder, and Betty Jo Younger after the opening of the "air base plant" concerning their union activity and those of other employees; (4) Jones' inquiries about November 1951 into the union membership of applicants for employment at Portageville; (5) Jones' statement to Betty Jo Younger at her home on October 30, 1951, that the cutters at the plant in New Madrid would not cut for a union shop; and (6) Jerome Morrison' s statements in his Halloween party speech of October 29, 1951,thatif the Unionwon the election, Morrison would be requested to lay off employees who became delinquent in their dues,T and there would be no more work at the Malden 'Joseph E. Cote, d/b/a J. E. Cote, and Brook Farm Foods , Inc., and Edouard Cote, 101 NLRB 1486; Somerset Classics , Inc., and Modern Mfg. Co., Inc.. 90 NLRB 1676, enforced 193 F. 2d 613 (C.A. 2); The L. B. Hosiery Co., Incorporated and Lee Maisel, doing business as Myerstown Hosiery Mills , 88 NLRB 1000 , enforced 187 F. 2d 335 (C.A. 3). 6Irving Lambert, Murray S. Lambert, and Seymour Lambert, d/b/a Sue-Ann Manufacturing Company, 98 NLRB 848 ; Stanislaus Implement and Hardware Company , Limited , 91 NLRB 618. 7Standard Coil Products , Inc., 99 NLRB 899. NEW MADRID MANUFACTURING COMPANY 119 plant_because the cutters at the New Madrid plant would not cut for a union shop. Contrary to the Company' s contention, the coercive effect of Morrison's speech was not dissipated by affording the union representative an opportunity to speak to the employees at the Halloween party or by Morrison's assurance to the employees that he was not making any threats. " 4. The Trial Examiner found that the Company did not dis- criminatorily refuse to recall Eris Stricklin and Lena Livingston on July 10, 1951, at the time its operations were transferred from the "food locker plant" to the "air base plant" at the Malden, Missouri, location. Although he concluded that the reasons advanced by the Company in failing to recall these employees were unimpressive, the Trial Examiner neverthe- less found that the failure of the General Counsel to call the two employees, who were apparently present in the hearing room, as witnesses left "this unimpressive testimony" vir- tually unchallenged on the record. We find, however, contrary to the Trial Examiner, that there is sufficient evidence, set forth below, to warrant the conclusion that Stricklin and Livingston were discriminatorily denied employment by the Respondent. While the testimony of these available witnesses would, of course, be most useful, the fact that they did not testify is not in itself sufficient grounds for dismissing these allegations of the complaint. The record shows that the Company, at least a month before the Malden operations were moved to the "air base plant," was convinced that both Stricklin and Livingston were strong union adherents. At about that time, according to the credible testimony of employee Mildred Canady, Jones told her that Stricklin and Livingston were "really strong", for the Union. Geraldine Corder', another employee credited by the Trial Examiner, also testified to a conversation with Jones in which he stated that Livingston was too slow and too much for the Union. Moreover, employee Nora Skaggs credibly testifiedthat Jones told her "Ens Stricklin is a good worker but she is interested in the Union too much." Skaggs further testified that Jones later sa.ia that if employee Lura McMunn " doesn't take to doing better work and not be interested in the Union so much she is going to get what Stricklin got." The conversation between employee Tylene Butler and Supervisor Ruth McCarver, set forth in the Intermediate Report, reveals that McCarver OSomerset Classics , Ind. and Modern Mfg. Co., Inc., supra. Cf. Bonwit Teller, Inc., 96 NLRB 608. The Trial Examiner made no finding concerning the General Counsel's allegation in the complaint that the Company violated Section 8 (a) (1) of the Act by the payment of vacation checks 2 months in advance of the scheduled date on the eve of the election. As no exception was filed to the Trial Examiner 's failure to make such a finding, we shall not pass upon this issue. The General Counsel contends that the Trial Examiner erred in rejecting his offer of proof to the effect that Letty Jones, the mother of Harold Jones , was a supervisor at Malden and in that capacity made certain unlawful antiunion statements . As we have already found violations of Section 8 (a) (1) by Jerome Morrison and Harold Jones, we do not deem it necessary to decide whether there were additional violations of the Act by Letty Jones. 1 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told Butler that Stricklin , the employee replaced by Butler, "got fired on account she is so strong for the union." The record further shows that both Stricklin and Livingston were competent employees . Although the Company contends that Stricklin was not recalled because she did not properly tie her completed bundles of skirts for the next assembly operator, the latter employee , Vernice Russell, testified that Stricklin's bundles were properly arranged . On cross-examination Jones conceded that Russell was in abetter position than he to observe Stricklin' s work in this connection . Both Jones and Morrison admitted that they otherwise regarded Stricklin as "a very efficient" and "a very good operator ." With regard to Livingston , there is no contention by the Company that the quality of her work was unsatisfactory . The Company , however, contends that she was not recalled because her piecework production was below average . Contrary to the Company's con- tention , the record reveals that a number of other employees, who were not disciplined by the Company , frequently failed to achieve production goals . Thus, the record discloses that during a 24 -week period in the first half of 1951 , which pre- ceded the termination of the operations at the "food locker plant," 6 other employees were each given "make-up," i.e., the difference between their piecework earnings and the mini- mum wage required by law , from 10 to 14 weeks.9 While Livingston was on makeup for 19 weeks of this period, her total amount of makeup , $ 55.14 , was exceeded during these weeks by the totals of other employees , such as Losh , $ 93.25, Oxley, $73.79, and Cartwright , $ 67.21 . There is no evidence in the record that any employee other than Stricklin and Livingston had ever been discharged or disciplined for the reasons advanced by the Company with regard to these em- ployees. On the basis of the foregoing and the entire record in this case, including the Company ' s failure to advance valid reasons for not recalling Stricklin and Livingston, and the Company's demonstrated hostility toward the Union, we find that these employees were discriminatorily denied employment in viola- tion of Section 8 (a) (3) and (1) of the Act. We shall therefore order them reinstated with back pay. However , in accordance with our usual practice where a Trial Examiner dismisses an 8(a) (3) allegation , in computing back pay and net earnings, the period between the Intermediate Report and the Decision and Order shall be excluded.to 5. The Trial Examiner found , and we agree , that the Com- pany on November 12, 1951, violated Section 8 (a) (5) of the Act by refusing to bargain with the Union which had been cer- tified 4 days earlier ." As indicated in the Intermediate Report, the Company in its letter replying to the Union ' s recognition request "presume [ d]11 that a bargaining conference would be 9Genevieve Cartwright, Emma Louise Losh , and Edna Alexander (14 weeks), Mildred Canady (13 weeks), and Loreda Oxley and Flora Harvell ( 10 weeks). lORub-R-Engraving Co., 89 NLRB 475. 11 We also find that the refusal to bargain was in violation of Section 8 (a) (1) of the Act. NEW MADRID MANUFACTURING COMPANY 121 "useless" in view of the absence of any intention of resuming operations at the Malden "air base plant" which had been closed for more than a month. The letter concluded with the statement that "at any rate" a meeting could not be held on the date specified by the Union because of conflicting engagements. Although, as detailed in the Intermediate Report, the Com- pany was already planning to move its plant from Malden to Portageville, Missouri, under the aegis of Jones, the Company disregarded the Union's right to be notified of any change in the working conditions of the employees it represented by failing to reveal its plan to the Union. The Union was thus un- lawfully deprived of an opportunity to bargain with the Company about the possible transfer of employees to the plant in Portageville. That. the Company did not intend to deal with the Union is clear from the fact that the Company had already em- barked on and continued its campaign of unfair labor practices which included interrogation of its employees concerning their union membership and activity and culminated, as indicated below, in the lockout of its employees. Under these circum- stances, we agree with the Trial Examiner's conclusion that it would have been futile for the Union to make further attempts to arrange a bargaining conference." 6. We also agree with the Trial Examiner that the Company laid off its Malden plant employees in October 1951, closed the Malden plant, and under its sales contract with Jones, moved the plant's facilities to Portageville as a means of combating the Union. Accordingly, we find that the Malden plant employees were thereby discriminatorily discharged in violation of Section 8 (a) (3) and (1) of the Act. 7. The complaint in section (f) of paragraph 18 charged the Company with violating Section 8 (a) (1) of the Act by engaging in surveillance of union activity. The record shows no evidence of such activities within the period of limitation specified in Section 10 (b) of the Act and the Trial Examiner made no find- ings in regard thereto. We find, therefore, that the Company did not in this manner violate the Act as alleged in the com- plaint, and we will therefore dismiss the pertinent part of the complaint. THE REMEDY We agree with the Trial Examiner that the status quo existing before the commission of the unfair labor practices should be restored by requiring the Respondents to resume operations at the Malden, Missouri, plant, or by providing employment at the Portageville, Missouri, plant. We shall therefore order the Respondents to offer the employees named in the Appendix attached hereto13 reinstatement to their former or substantially 12C & D Coal Company, 93 NLRB 799; Somerset Classics, Inc., and Modern Mfg. Co., Inc., supra; Howard Rome, an individual. d/b/a Rome Products Company and Kenton Plastics Cor- poration. 77 NLRB 1217. 13 As Letty Jones has a close family relationship to Harold Jones and was therefore allied to management , we, unlike the Trial Examiner who regards Letty Jones as an ordinary employee, shall exclude her from the list of those entitled to reinstatement. See footnote 8, supra 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equivalent positions, at the Malden plant, if the Respondents reopen it, or at the Jones Manufacturing, Portageville, Missouri, plant, without prejudice to their seniority and other rights and privileges dismissing, if necessary to provide employment for those offered and accepting employment, all employees at the Portageville plant. If there is not sufficient employment then immediately available for these persons, all available positions shall be distributed among the employees entitled to reinstate- ment in accordance with the Respondents' usual method of operation under curtailed production, without discrimination against any employee because of union affiliation or activities, following the system of seniority, if any, customarily applied to the conduct of the Respondents' business. Any employees re- maining after such distribution for whom no work is immediately available, shall be placed upon a preferential list prepared in accordance with the above principles, and shall thereafter, in accordance with such list, be offered employment in their former or in substantially equivalent positions as such em- ployment becomes available and before other persons are hired for such work.14 J While we agree with the Trial Examiner that employees should be paid the expenses entailed in moving their families and household effects, in the event the Respondents do not elect to reopen the Malden plant, we do not agree that those employees who choose to commute to Portageville should be paid their daily expenses for that purpose. We shall also order the Respondents to make whole the employees listed in the Appendix for any loss of pay they may have suffered by reason of the Respondents' discrimination in the following manner: Pay to the said employees, excluding Eris Stricklin and Lena Livingston, a sum of money equal to the amount each would normally have earned as wages from the date of the discrimination 15 to the date of an offer of re- instatement less her net earnings during such period.16 Pay to Eris Stricklin and Lena Livingston a sum of money equal to that which each would normally have earned during the period from the date of the Respondents' discrimination againstthem, July 10, 1951,17 to the date of the Intermediate Report herein, and during the period from the date of the Decision and Order herein to the date of the Respondents' offer of reinstatement, less net earnings during such periods.18 In the case of those employees for whom there is insufficient work available, the terminal date of the back-pay period is to be the date of em- ployees' placement on a preferential list as hereinabove set forth. ' As noted above, we have found that both the Company and Jones are jointly and severally liable to remedy the unfair 14Sam Wallick and Sam K . Schwalm, Partners, d/b/a Wallick and Schwalm Company , et al., 95 NLRB 1262. is This date is given for these employees in Appendix A of the Intermediate Report. 16 F. W. Woolworth Company, 90 NLRB 289; Crossett Lumber Company, 8 NLRB 440. 17 As noted supra, this is the date when the Malden "air base plant" began operations. 18See footnote 16, supra. NEW MADRID MANUFACTURING COMPANY 123 labor practices herein. However, as the Trial Examiner did not specifically recommend that Jones as well as the Company be required to do so, we find that Jones is liable during the periods preceding the Intermediate Report and subsequent to the date of the Decision and Order hereinbut not for the inter- vening period. In view of the nature of the unfair labor practices committed, the commission by the Respondents of similar and of other unfair labor practices may be anticipated. We shall therefore make our Order herein coextensive with the tireat and order that the Respondents cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, New Madrid Manufacturing Company, a corporation, New Madrid, Missouri, and Harold Jones, an individual d/b/a Jones Manu- facturing Company, Portageville, Missouri, and their officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Ladies' Gar- ment Workers Union, A.F.L., or in any other labor organization of its employees, by discharge, by lockout, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment, except to the extent permitted by the proviso to Section 8 (a) (3) of the Act. (b) Inquiring into the union membership of any of their em- ployees, or in any other manner interrogating or questioning their employees with respect to their union membership or sym athies, or threatening reprisals for organizing a union. (c) Refusing to bargain collectively with International Ladies' Garment Workers Union, A.F.L., as the exclusive representa- tive of all the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment. (d) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self- organization, to form labor organizations, to join or assist International Ladies' Garment Workers Union, A.F.L., or any other labor organization, to bargain collectively through repre- sentatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: 1 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer the employees named in the Appendix attached hereto immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make all these employees whole for any loss of pay suffered, both in the manner set forth in the section of this Decision and Order entitled "The Remedy." (b) Upon request, bargain collectively concerning wages, hours, and other conditions of employment with International Ladies' Garment Workers Union, A.F.L., as the exclusive representative of all employees in the appropriate unit, and if an understanding is reached, embody such understanding in a signed agreement. If the Respondents elect not to reopen the plant at Malden, but to continue at Portageville, recognize the Union as the representative of the employees at Portageville, Missouri, and bargain with the Union in the manner above set forth. (c) Send to the employees named in the Appendix a letter offering said employees reinstatement, and also setting forth the Respondents' election as to where they will effect such re- instatement, and include in such letter a copy of the notice attached hereto and marked "Appendix." 19 (d) Post at the Portageville plant, or the Malden, Missouri, plant, if the Respondents elect to reopenit, copies of the notice attached hereto and marked "Appendix." Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by the Respondents' representatives, be posted by them immediately upon receipt thereof and be maintained by them for a period of at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps should be taken by the Respondents to insure that such notices are not altered, defaced, or covered by any other material. (e) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due under the terms of this Order. (f) Notify the Regional Director for the Fourteenth Region, in writing, within ten (10) days from the date of this Order what steps the Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint insofar as it alleges that the Respondents violated Section 8 (a) (1) of the Act by engaging in surveillance, be, and it hereby is, dismissed. 19In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pur- suant to a Decree of the United States Court of Appeals , Enforcing an Order." NEW MADRID MANUFACTURING COMPANY 125 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Re- lations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT interrogate our employees concerning their membership in, or adherence to, International Ladies' Garment Workers Union, A.F . L., or any other labor organi- zation, or threaten them with reprisals or loss of benefits, either directly or by implication , for such membership or adherence. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations , to join or assist International Ladies' Garment Workers Union, A.F.L., or any other labor organization , to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL NOT discourage membership of our employees in International Ladies' Garment Workers Union , A.F.L., or in any other labor organization of our employees by locking out and discharging any of our employees or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or con- dition of employment. WE WILL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed. If the Malden plant is not reopened , we will offer to these employees immediate employment in substantially equiva- lent positions at the Jones Manufacturing plantinPortage- ville , without prejudice to their seniority and other rights and privileges , and with the necessary traveling and moving expenses. WE WILL make whole the said employees for any loss of pay suffered as a result of the discrimination against them. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Edna Alexander Geraldine Corder Rachel House Blanche Galloway Lela Collison Winnie Smith Mildred Canady Cecile Blake Flora Harvell Thelma Barton Ollie May Gentry Janice Bennett Eva Teeters Gladys Holcomb Mae Ceile Blade Thelma Harris Emma Louise Losh Eris Stricklin Tylene Butler Nora Skaggs Loreda Oxley Ruth Fields Elsie Haywood Dollie King Mildred Irby Ada Warren Pauline Warren Elsie Bridgeforth Billy McKinsey Agnes Hardesty Betty Jo Younger Madge Pyle Vernice Russell Lura McMunn Billy Kirkpatrick Lena Livingston WE WILL bargain collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All production employees at the Malden or Portageville, Missouri, plants, excluding executives, office clerical employees, foreladies, foremen, supervisors, watchmen, guards, and all other employees excluded under the Act. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. NEW MADRID MANUFACTURING COMPANY, Employer. Dated . ............... By.... . ............................................... (Representative) ( Title) HAROLD JONES, AN INDIVIDUAL, d/b/a JONES MANUFACTURING COMPANY, Employer. Dated ................ By.................................................... (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. NEW MADRID MANUFACTURING COMPANY 127 Intermediate Report STATEMENT OF THE CASE Upon an amended charge duly filed by International Ladies' Garment Workers Union, A.F.L., herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Fourteenth Region (St. Louis, Missouri), issued a complaint dated March 21 . 1952, against New Madrid Manufacturing Company , a corporation , and Harold Jones, an individual, d/b/a Jones Manufacturing Company, herein called the Respondents , alleging that the Respondents had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act (61 Stat . 136), herein called the Act. i Copies of the complaint and charge were duly served on the parties. With respect to the unfair labor practices the complaint alleged , in substance , that on June 4 and on July 3 , 1951 , the Respondent , New Madrid Manufacturing Company, discharged certain named employees ; that onor about October 4, 1951 , the Respondent , New Madrid Manufacturing Company, locked out and discharged all its production and maintenance employees and on or about October 15 , 1951 , for an illegal purpose ceased to operate its plant at Malden , Missouri; that it thereafter through a ficticious sale pretended to deliver the machinery and equipment of said plant to Harold Jones who as the agent and alter ego of the Respondent , New Madrid Manufacturing Company, set up said machinery at Portageville , Missouri, where the Re- spondent through said Jones now operates as Harold Jones d/b/a Jones Manufacturing Com- pany; that on October 31, 1951, the Respondent 's employees at Malden , Missouri, selected and designated the Union as their exclusive bargaining agent; that on and after November 7, 1951, the Respondent , New Madrid Manufacturing Company , has refused to bargain collectively with the Union as such exclusive bargaining agent ; that the Respondents have engaged in various acts of interference, restraint, and coercion in violation of the Act; and that by the above conduct have violated Section 7 of the Act and more particularly 8 (a) (1), (3), and (5) thereof The Respondent, New Madrid Manufacturing Company, duly filed an answer in which it denied that it had engaged in any of the unfair labor practices alleged in the complaint. The Respondent Jones, filed an answer denying that he had engaged in any of the alleged unfair labor practices. Jones further moved that the complaint be dismissed as to him. The undersigned denied the motion. Pursuant to notice a hearing was held on May 19 through 23 , 1952, inclusive, before Louis Plost, the duly designated Trial Examiner , at Malden, Missouri. At the hearing all the parties were represented by counsel , were afforded full opportunity to be heard, to examine and cross- examine witnesses , to introduce evidence pertinent to the issues, to argue orally upon the record , and to file briefs and proposed findings and conclu- sions. Oral argument was waived by all parties . A date was fixed for the filing of briefs and/or proposed findings and conclusions with the undersigned . Briefs have been received from the Respondents and the General Counsel , together with proposed findings and conclusions from the Respondents. At the close of the General Counsel 's case- in-chief and again at the close of the hearing, the Respondents moved to dismiss the complaint in effect on the ground that there was no substantial evidence to support the allegations therein. The undersigned denied these motions. Likewise at the close of the hearing the undersigned granted a motion by the General Counsel to conform the pleadings to the proof with respect to names, dates, spelling , and like matters. Upon the entire record in the case, and from his observation of the witnesses , the under- signed makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT I The Respondent , New Madrid Manufacturing Company, New Madrid , Missouri.' is a Missouri corporation having its principal plant at New Madrid , Missouri , where it is engaged in the manufacture and distribution of various kinds of garments for women 's wear. I The original charge was filed November 26 , 1951, and was duly served . The amended charge was filed March 21, 1952. 2 For reasons later apparent the undersigned makes no finding under this heading as to Respondent Harold Jones , d/b/a Jones Manufacturing Company. 3Hereafter, "Respondent" will refer to the Respondent New Madrid Manufacturing Company. Respondent Jones shall be referred to as "Jones." 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent manufactures garments under contract with various distributors, the cloth used in such manufacture being shipped to it by its customers, remaining at all times their property and not the property of the Respondent. 4 During the period of March 25, 1951. to March 25, 1952. the Respondent manufactured and shipped 25,000 dozens of garments, and used 400,000 yards of its customers' cloth in such manufacture. Seventy-five percent of the garments it manufactured was shipped by the Re- spondent to points outside the State of Missouri. The Respondent received $148.000 in manufacturing fees during this period. Prior to October 31, 1951, the Respondent operated a branch plant at Malden, Missouri. Materials cut at New Madrid were shipped to the Malden plant for processing and were then returned to New Madrid for shipment to customers. II. THE ORGANIZATION INVOLVED International Ladies ' Garment Workers Union, A. F.L., is a labor organization within the meaning of Section 2 (5) of the Act, and admits employees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES Synopsis Apparently the Union began organizing the Respondent's Malden employees sometime in 1950. The General Counsel contends that on or about July 10, 1951. the Respondent discharged two of the employees in its Malden plant because of their union membership and activities; on October 31, 1951, the Respondent's Malden employees selected the Union as their exclusive bargaining representative in an election conducted by the Regional Director for the Board's Fourteenth Region, pursuant to a consent-election agreement; on November 7, 1951, the Union requested bargaining , the request was denied by the Respondent; on and after October 4, the Respondent locked out its Malden employees; on or about November 28, the Respondent removed its plant from Malden, and that prior to the removal of the plant the Respondent engaged in certain conduct amounting to unfair labor practices violative of the Act. The Respondent's answer to the General Counsel's contentions above mentioned, admits that it discharged the two employees in July 1951, but avers the discharges were for legal cause, further avers that it sold the machinery in its Malden plant to Harold Jones who removed it, and further denies that it engaged in any of the unfair labor practices alleged in the complaint. Jones avers that he took the machinery under a valid sale and is not liable as he is operating a new business apart from the Respondent. A. The refusal to bargain 1. The appropriate unit and the Union's representation therein There is no dispute that following a petition duly filed by the Union under Section 9 (c) of the Act and docketed by the Fourteenth Region as Case No. 14-RC-1578, the Respondent and the Union on October 19, 1951, entered into an "Agreement for Consent Election " agreeing that an election to determine the choice of the Respondent's Malden employees for an exclusive bargaining representative be conducted by the Regional Director for the Fourteenth Region within a unit consisting of: All production employees in the Company's [Respondent's] plant at Malden, Missouri, excluding executives , office and clerical employees , foreladies, foremen, supervisors, watchmen, guards and all other employees excluded under the Act. The election was duly conducted on October 31, 1951. On November 8, 1951, the Regional Office certified that a majority of the valid ballots cast in the election were in favor of the Union, and that the Union was the exclusive representative of all the employees in the unit for purposes of collective bargaining. The undersigned therefore finds that at all times since November 8, 1951, the Union has been the representative for the purposes of collective bargaining of the employees in the aforesaid unit which the undersigned finds to be appropriate. 4The Respondent 's relationship to its customers is known as "jobber and contractor" throughout the industry . For a complete , illuminating, and scholarly discussion of practices in the garment manufacturing industry, see, Abels v . Friedman, 14 N.Y.S. 2nd 252. NEW MADRID MANUFACTURING COMPANY 129 2. The Respondent 's refusal to bargain On November 7, 1951 , the Union addressed a letter from St. Louis, Missouri , by registered mail, to the Respondent at New Madrid, wherein it requested a bargaining conference and suggested November 15 as a suitable date. On November 12, the Respondent through its attorney replied , also by registered mail. In its reply the Respondent stated that it had "no intention of resuming operations at the Malden plant," the plant having then been closed "for more than a month." The Respondent closed with the statement that "At any rate it [ a meeting ] could not be held on the 15th of this month because of conflicting engagements ."S Jerome Morrison , the Respondent 's secretary- treasurer and its active manager , testified that the Respondent "never discussed anything with the Union." The undersigned finds that on November 12, 1951 , the Respondent refused to bargain with the Union as the exclusive representative of its employees within an appropriate unit, in violation of Section 8 (a) (5) of the Act. B. Interference, restraint, and coercion 1. Conduct of Harold Jones There is no dispute that the Respondent began the operation of its plant at Malden in July 1, 1950, in a building designated by the witnesses as the "food locker plant "; that it ceased operations in this building June 23, 1951 , and removed to a building called the "air base plant," where it resumed operations on or about July 10, 1951 ; that on October 19, 1951, the Respondent and the Union entered into an agreement for consent election , as herein found, which by its terms provided for an election on October 31, 1951; that prior to the date of the election the Respondent had shut down its plant ; and that on Halloween, October 29. 1951, the Respondent gave a party for its employees in the plant , which though not operating was opened for the purpose. Rachel House testified that sometime while the plant was located in the "food locker building" and while the Union was attempting to organize the employees , Harold Jones, the Respondent's plant manager , entered into a conversation with her in the plant and that during the course thereof, Well, he said if we went union, that the ones who voted for the Union would be for it and if we got the Union that the factory would move, that Mr. Morrison would move the factory. Mildred Canady testified that "about a month before" the Respondent moved from the "food locker plant" Harold Jones came to her machine; and after writing the names of all the employees on the side of her machine told her that he could tell her "the ones that is strong for the Union and the ones that is not so strong for the Union and the ones that had signed cards." Jones then asked, "you have signed a card, haven't you?" Canady replied, "yes, I have." Geraldine Corder testified that Jones asked her "which way" she would vote in an election to choose a bargaining representative . She further testified: Well, the boss, Harold, asked me, well, I don't know exactly how many times, but he did question me who all I thought joined the union and went to the meetings. Corder could not fix the time of these occurrences, except that "it was the month they had those union meetings." Apparently the incidents occurred while the Respondent operated at the "air base plant." Vernice Russell testified that she was employed by the Respondent in April 1951; that "about three weeks " before the factory [ air base plant ] closed she asked Jones "if he thought I would ever have steadier work ," and that Jones replied, "We plan on filling the factory with machines if nothing interferes ." Russell testified that employee Betty Jo Younger was present during this conversation. 5 The fact that the Union's demand was made the day prior to the certification was not raised, however although a certification fixes a date of irrebuttable proof of majority , the Respondent could not in good faith refuse to bargain with the Union on its demand made after the election but before the actual certification solely because the "certification" had not yet issued. In view of all the circumstances in the case the undersigned finds that the Union was not under obligation to repeat the futile gesture of formal demand on the Respondent. 13 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Younger corroborated Russell and also testified that when she first applied for work at the Respondent's "air base plant," Jones asked her if she belonged to a union or had ever be- longed to one. Upon receiving a negative reply, Jones remarked, "good. " Jones , except that he denied generally making any coercive statements to any of the Respondent 's employees , did not deny the testimony of Rachel House , Geraldine Corder, Vermce Russell, and Betty Jo Younger as above set out, and further testified that he could not recall the conversation between himself and Mildred Canady. The undersigned credits the testimony of House, Corder, Russell, Younger, and Canady and finds that their accounts of the conversations they had with Jones, the statements made by him therein , under the circumstances set forth in their testimony , represent accurate versions thereof and therefore finds that Jones made the statements attributed to him in the above- related testimony. 2. The alleged discriminatory discharges of Lena Livingston and Eris Stricklin As herein found the Respondent ceased its operation at the "food locker plant " about June 25, 1951 , removed to the "air base plant," where it began operations on July 10. It is not in dispute that when the "air base plant" began operations two of the employees at the former plant, namely, Lena Livingston and Eris Stricklin, were not recalled. The General Counsel contends that the two employees were not recalled, and thus discharged, because of their membership in and activities on behalf of the Union in support of this contention the General Counsel offers the following to prove union membership and activity by Livingston and Strickhn and knowledge thereof by the Respondent: Lura McMunn testified that "in the middleofMay" 1951, Mrs. Whitacre, the union organizer, together with McMunn, Strickhn, Livingston, and another employee were all in a grocery store and there met Harold Jones. McMunn testified: Q. Did you speak to him? A. Yes, sir. Q. Did he speak to you? A. Yes, sir. Nora Skaggs testified that on the first day she returned to work on the reopening at the "air base plant" in a conversation with Jones, he said to her, "Eris Stricklin is a good worker but she is interested in the Union too much." Skaggs further testified that Harold Jones told her some two or three weeks later" "if the girls voted the Union in that Mr. Morrison would close the factory down and move it away." Tylene Butler, who replaced Stricklin, testified to the following conversation with Ruth McCarver, admitted by the Respondent to be a supervisor: I asked her what become of that girl to get fired that was on my job and she said I think she got fired on account she is so strong for the union, but she said she is supposed to get fired on account of the not stacking her skirts straight. McCarver was not called. With respect to Lena Livingston, Morrison testified that she was employed by the Respondent June 7, 1950, and that her last day of employment was June 25, 1951; that he did not know her but that his inspections of the payrolls convinced him that she was inefficient because as a pieceworker she did not produce enough to cover the guaranteed day rate; 6 that he told Jones "we could not continue to keep repeatedly taking make ups on this girl." With respect to Eris Stricklin, Morrison testified that she was employed from August 15, 1950, to June 15, 1951; that she was the only "blind stitch" operator in the plant and that she was a "very good operator" but that Jones complained to him regarding the manner in which she did her work. Jones testified that Livingston was a "fair operator"; that the quality of her work was good; that she was slow. Using company records Jones testified that Livingston did not make her guaranteed rate, however these records also show that most of the other employees during the same periods also failed to make their rates. Jones further testified that she was not recalled because she was slow. Jones did not tell Livingston she would not be recalled at the time the plant was shut down to move. Livingston asked for her job at the "air base plant" and was refused. 6 The day rate, 75 cents per hour, is fixed by statute. Piecework rates are set by the Re- spondent. NEW MADRID MANUFACTURING COMPANY 131 With respect to Stricklin, Jones admitted that she hemmed "practically every garment that went through our factory." He testified that he did not recall her to the new plant because when she finished her task and passed the work to the next operator: Well, they were left loose for one thing, she didn't tie her bundle tight , sometimes the string would slip off. Of course, that happened to a lot of girls, but not as frequent as I had to call Eris down for it. Sometimes they got loose in the box, then when you pick them up they are messed up. Another way they would be thrown up there in a haphazard way, maybe one skirt would be twisted around , the best I remember. Vernice Russell testified that she was theoperator who received the garments from Stricklin for the next operation and that: When I got my garments, my skirts from Eris Stricklin the bands were together and the bottoms were together. Both Morrison and Jones denied any knowledge of union membership or activity on the part of Livingston or Stricklin. Jones, however , admitted he knew an attempt was being made to form a union among the Respondent 's employees at the "food locker plant" in 1950. Neither Livingston nor Stricklin was called by the General Counsel. 7 Although the evidence adduced by the Respondent in support of its reasons for the discharge of Livingston and Strickhn is quite unimpressive, the failure of the two women to testify and dispute the Respondent's contentions leaves this unimpressive testimony virtually unchallenged, therefore although the matter is by no means free from doubt the undersigned finds on the record as made that the evidence does not sustain the allegations of the complaint as to the discriminatory discharge of Lena Livingston and Eris Stricklin. The undersigned will recom- mend that the complaint be dismissed insofar as it so alleges. 3 The closing of the plant The Respondent shut down its Malden plant in October 1951. Morrison testified that "all phases of operation were closed completely. It was, I would say, in the first half of October." He further testified that at the time the plant was shut down it was only temporary and occasional solely because it became too cold to work. The record discloses the shutdown began October 4. It is clear that the Respondent's building, which it rented from the city of Malden and which was to be made suitable for the Respondent's purposes by the city, was at the time being equipped with a heating plant. According to Morrison's testimony there was "an extremely cold snap right after Labor Day" 1951, which lasted "four or five days." According to Morrison the temperature fell to 350 or 400. He testified: Q. Have you ever been out therein that building when you had 35 to 40 degree tempera- ture A. Yes, I have, Mr Kennedy. Q When was that? A. Anywhere from the 10th of September to the 1st of October , right along that time there. Morrison further testified that "some time between the 10th and the end of September 1951, a number of girls [were] finding it necessary to wear their coats and work." Labor Day in 1951 fell on September 3. Jones testified: Well, from the middle of September, Mr. Blanton, it was starting to cool, but it wasn't- - then that was when we really had some good production, because it wasn't too hot to work and it wasn't too cold to work and then getting on into the month of October it got cooler and the girls from time to time would complain about their fingers being cold , and our pressers naturally were over steam presses and they didn 't complain too much except in the fore part of the day when the building was still cool and their machinery hadn't had time to warm up. 7 The Respondent and Jones both point out in their briefs that Livingston and Stricklin were in the hearing,room throughout the hearing 13 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Certified official U. S. Weather Bureau records of the temperature taken at the Malden, Missouri, airbase for the months of September and October 1951 were received in evidence. These official records show that September 3, 1951 (Labor Day) had a maximum temperature of 850. The maximum temperatures for the following 10 days at Malden is shown to be 80°, 85°, 79°, 83°, 91°, 84°, 87°, 91°, and 75°. In the entire month only 1 day fell below 70°, maximum, while only 1 day of 70° maximum was recorded, these being September 28, 640 maximum, and September 29, 700 maximum. The last day of the month rose to 840 maximum. The parties stipulated the dates the employees were laid off in closing the plant. A total of 35 employees were laid off, according to Morrison, because it was too cold to work. The number of employees laid off each day and the maximum officially recorded tempera- ture for the day is as follows: Number laid off Date Temperature 7 October 4, 1951 890 10 October 5, 90° 1 October 9, 67° 4 October 10, 70° 10 October 12, 76° 1 October 11, 750 1 October 16, 83° 1 October 20, 690 It seems quite clear that extreme cold was not the cause of the shutdown. It becomes neces- sary therefore to determine if the record discloses another and more plausible reason for the shutdown. Russel Ferguson, a local merchant, testified without contradiction that during "the latter part of last [1951] summer or early fall," Morrison in an address to a local business men's club stated that: .. he could not operate under a union scale He put it this way, if he had to do that he had better be near his market or near his source of supply so that he wouldn't have to pay that freight back and forth. Lowell P. James, a member of the same club, testified without contradiction that Morrison addressed the club "a couple of times," saying that "unions did give trouble." The undersigned has found that Jones made coercive antiunion statements, including a statement to the effect that the plant would be moved if the employees were organized into a union. Jones testified that "along the first of October" Morrison instructed him to inform the proper city representative that if heating facilities had not been installed by October 15, the plant would cease operations. Jones also testified that he was ordered to remove the sewing machine heads from the plant, as the building would "draw moisture" because of the cold and they would rust. The machinery was so dismantled and moved shortly after the shutdown. On October 19, 1951, 8 the Respondent entered into a consent- election agreement with the Union, the date of the election being set for October 31. 4. The Halloween party As found herein the election agreed upon by the Union and the Respondent was set for October 31. On October 24, the Respondent invited all its laid-off employees to attend a Halloween party at the idled plant during the afternoon of October 29. The invitation was by post card signed by Jones and stated: Refreshments will be served.... The vacation checks will be disbursed and vital matters of interest and concern to the girls will be discussed. When the Respondent' s guests had arrived refreshments were served and Morrison addressed those present. 8 The date the Union filed its petition for an election with the Region is riot shown by the record. NEW MADRID MANUFACTURING COMPANY 133 Thelma Barton testified: Q. Would you tell us what your recollection as to what Mr. Morrison told the em- ployees? A. Well, he had the ballot and he held it up and said he couldn't tell us which way to vote, whether for or against it, and he wasn't making any threats, that he wanted us all to go out and vote, and he had Harold read in the clippings from the paper, violence had been done when he was organizing a union in some town, I don't know what town, and there was windows broken and people was out of work. Mr. Morrison also went on to state after Mr. Jones had finished reading this article that he had talked to the cutters and they had re- fused to cut for a union shop and there would be no work and they had their privileges, the same as we had ours. He also said that we would have union dues to pay if we wanted an election, that our children might need them for clothing and he also said that if we got behind on our union dues that he would be required to lay us off, and that we couldn't go to him as before, him or Harold, we would have to go to the union representative and then back to him. Barton was corroborated by Rachel Jones, Geraldine Corder, Vernice Russell, and Janice Bennett, all called by the General Counsel. Pauline Warren and Ada Warren called by the Respondent gave virtually the same account of Morrison's talk. Morrison's version of his talk is substantially the same as to content; however, he elaborated as to his statement regarding the attitude of the Madrid cutter, testifying "that they asked me to advise them of this." However Orva Loderback, called by the Respondent, testified that he was the only cutter employed by the Respondent; that he expressed himself as reported; and that Morrison asked his permission to repeat his remark to the Malden employees. Morrison also testified he told the employees the Respondent believed "their interests would best be served if they voted no union." Morrison delivered the vacation checks. There is no dispute that while Morrison was speaking Mrs. Whitacre, the Union's repre- sentative, sent in word that she wished to come in and make an announcement; that she was asked to wait outside until Morrison had finished; was then admitted and made an announce- ment to the assembled employees. Jones testified that the vacation checks distributed by Morrison were to have been distributed the following Christmas "but as to why Mr. Morrison gave it on the day he did, I don't know." Jones further testified that he read a newspaper article at Morrison's request but that he could not now recall its contents. Conclusions as to Morrison's Speech According to Morrison's version of his talk to the employees, at the time he told them the New Madrid cutters, from whom their work was received , would refuse to cut garments for a "union shop" he also told them "they should not construe that as a threat or intimidation or anything to that effect. I was merely transmitting some information I was authorized to give." Morrison, however, failed to tell his audience that the Respondent employed but one cutter at New Madrid whose permission to convey his antiunion expression Morrison solicited. Morrison also omitted from his version a striking illustration , oratorically embellished, which all others testifying, both for the General Counsel and the Respondent, recalled as a highlight to the talk; thus Pauline Warren, called to corroborate Morrison, testified: He said, I will just tell you another little story that he said. I hope we won't get too confused on it. He said, "Now take Mary Smith, I hope there isn 't any Mary Smith's here because I am not referring to anyone personally, but take Mary Smith now , here she is and she has a family, maybe two to three children, and she has to feed them, there is no father , just Mary Smith to take care of all them, and she has to feed those children , clothe them, send them to school." Well, he said , "What if we had a union ", he says, "I am just telling you some of the possibilities of the things that could happen." He said , "If Mary Smith, she has children, has to send them to school and no other income, only her work here, at the place, at the plant," and he said, "maybe she couldn't pay her dues, her union dues, she might fail to pay her union dues, the union might come in and say Mary failed to pay her union dues, we will have to get rid of her ." And he said, "I wouldn't have no choice, I would have to do what they said to do and get rid of Mary no matter how badly she needed the work." He said, "Now, I am not telling you that, threatening you or anything like that, but it is a possibility that something like that could happen." Z83230 0 - 54 - 10 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. (By Mr. Kennedy) Did I understand you a moment ago to say that this might happen? A. He said it is a possibility itcouldhappen And he said, "There would be Mary with- out a job." But he said, "I am not telling you that it will happen, I am just telling you that it could happen and not trying to scare anyone or influence anyone. I am just telling you what could happen, and they could do as they please," but that is what he thought could happen. All other auditors testifying gave virtually the same account. Human beings do not exist in a physical vacuum, nor "reach for the stars" in a mental vacuum. It has been well said 9 with respect to the effect of speech on human relationships: Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other , but all in their aggregate take their purport from the setting in which they are used, of which the relation between the speaker and the hearer is perhaps the most important part. The undersigned must be mindful that Morrison spoke to an audience of laid-off employees, whose attendance, if not whose good will, had been insured by a promise to distribute money due them but which would not ordinarily have been distributed for another 2 months; that the assembly was in a closed factory whose machinery was partly dismantled ; that he spoke but 2 days preceding an election to determine a bargaining representative ; that the audience in- cluded individual employees found herein to have been questioned regarding union affiliation and told by a supervisory official that the plant would be closed if the employees effected union organization. In this setting and under all the circumstances of the case as disclosed by all the evidence considered as a whole, Morrison' s statement to the effect that materials for the operation of the Malden plant would not be cut if his audience voted in a "union shop," and his intimation that a union would force the Respondent to discharge any employee who failed to pay dues, no matter what the hardship , cannot be regarded as mere expressions of opinion by Morrison, wholly protected by the constitutional guaranty of free speech and the Act, but were in reality coercive statements loaded with threats, and were calculated to be so. Clearly Morrison was not confining himself to intellectual discussion in his remarks but was engaging in intimida- tion, coercion, and restraint, violative of the Act, and unprotected by the Constitution, for the right of free speech is not a license to go beyond the boundries set by the Board and the courts in matters affecting labor relations. Morrison's statement that the employees were free toact as they pleased was not enough in itself to remove the coercive effect of his remarks if one considers them in relation to the speaker and his audience . As the court stated in the Kropp Forge case: to It also seems clear to us that in considering whether such statements or expressions are protected by Section 8 (c) of the Act , they cannot be considered as isolated words cut off from the relevant circumstances and background in which they are spoken. A state- ment considered only as to the words it contains might seem a perfectly innocent state- ment, including neither a threat nor a promise . But, when the same statement is made by an employer to his employees , and we consider the relation of the parties , the surrounding circumstances , related statements and events and the background of the employer's ac- tions, we may find that the statement is a part of a general pattern which discloses action by the employer so coercive as to entirely destroy his employees' freedom of choice and action. To permit statements or expressions to be so used on the theory that they are pro- tected either by the First Amendment or by Section 8 (c) of the Act, would be in violation of Section 7 and contrary to the expressed purpose of the Act . Therefore , in determining whether such statements and expressions constitute , or are evidence of unfair labor prac- tice, they must be considered in connection with the positions of the parties , with the background and circumstances under which they are made, and with the general conduct of the parties . If, when so considered, such statements form a part of a general pattern or course of conduct which constitutes coercion and deprives the employees of their free choice guaranteed by Section 7, such statements must still be considered as a basis for a finding of unfair labor practice. To hold otherwise would nullify the guaranty of em- ployees' freedom of action and choice which Section 8 (c) could not have intended that re- sult The undersigned is convinced and finds that admitting Union Representative Whitacre to the meeting to make an announcement after Morrison had finished speaking , first, having her wait 9Justice Learned Hand in N.L. R.B. v. Federbush, 121 F. 2d 954 (C. A. 2). ioN.L.R.B. v. Kropp Forge Company, 178 F. 2d 822 (C.A. 7); cert. denied 340 U S. 810. NEW MADRID MANUFACTURING COMPANY 135 outside until he had done so, did not in any way cancel the coercive effect of Morrison's re- marks. The undersigned finds that by Morrison's talk to the Respondent's employees in October 1951, as above found, the Respondent has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act. Jones admitted that on the day after Morrison's talk he (Jones) called at the homes of various employees who had not been present. According to Jones he told each "that it was important that she come to the election and vote" and also gave them "the company's sentiment toward the thing," repeating as best he could Morrison's remarks with respect to the cutter's refusal to cut for a union shop. Dollie King testified that Jones called at her home and had the following conversation with her. Well, he asked me why didn't Igo to the Halloween party. I told him I didn't have no way to go, and he asked me if I was going to vote and I come up and nothing happened. Q. Was anything else said9 A. He said well, he couldn 't tell me how to vote, but if it went union he was afraid the factory would close down and Mr . Morrison was figuring on closing the factory down and moving it out. Jones admitted calling on King but denied that he stated the plant would close. The under- signed credits King. ii Betty Jo Younger testified that Jones called at her home after the Morrison speech meeting, which she did not attend. Younger testified: Well, he said I am not trying to influence you on how to vote, and he we- on to say that we would have more privileges and better opportunity if the union don't come in, and that the New Madrid cutters wouldn't cut for a union shop and that meant we would be out of work Jones admitted speaking to Younger regarding the cutter's remarks. He testified, "I just relayed the message Mr. Morrison had ... given the girls before because it was of vital interest what he had to say." The undersigned on all the evidence and because he considers Younger to be an honest witness accepts her version of the conversation as the more accurate and therefore credits her testimony. Concluding Findings on the "Temporary" Closing of the Malden Plant The undersigned finds that in October 1951, by a process of laying off its employees be- ginning October 4, the Respondent closed its plant for the purpose of influencing its employees in their choice of a bargaining representative and that by such conduct the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. 5. The permanent shutdown at Malden, the alleged sale and succeeding events As found herein the election duly held October 31, 1951, resulted in the selection of the Union as their bargaining representative by the employees. On November 7, the Union by letter requested a bargaining conference with the Respondent. On November 8, the Respondent notified its landlord, the city of Malden, that it did not intend to reopen the plant, closed in October. On November 12, the Respondent by letter refused to bargain with the Union, and has at all times since so refused. Likewise on November 12, the Respondent by letter notified its laid-off employees "that the factory here has no plans to reopen. The fixtures and equipment in the plant have been sold." (Emphasis supplied.) Morrison advanced two reasons for the Respondent's decision to make the "temporary" shutdown permanent. First, because the building was unsuitable, being "too hot in summer and too cold in winter." ti A general analysis of Jones' testimony together with the undersigned's estimate of his general credibility appears at a later point in this report. 13 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent moved into the "air base plant "July 10, 1951 . The building was rented from the city of Malden which was required to condition it. The record is clear that during the summer the city of Malden installed fans of various kinds under the Respondent 's direction. It is also clear that the winter -heating equipment was being installed at the time of the shut- down in October . At the time ofthehearing the Respondent was still paying rent to the city for the building which seems strange if the city defaulted on its obligation , and more than strange in view of the Respondent 's second contention for ending its Malden operation , namely, that its operations at Malden resulted in a serious loss. Morrison testified that "the decision was made not to reopen the plant after we received operational figures on the performance during the period from when it commenced to the time it closed down." He further testified this was "in the early part of November," and that at the time of the "Halloween party"(October 29) the Respondent was not aware of its operational loss. Aubre Jacobs testified that he is a member of a firm of accountants in Chicago. Illinois; that on May 9, 1952, he submitted an audit to the Respondent of its Malden operation as made by himself; that the firm was employed to make this audit "perhaps a week or ten days prior to that date" (May 9); that the Respondent did not make all its books and records available to him, but that he relied on statements made to him by the Respondent and the report was based in part on "what the factory would have earned had the company been selling to outsiders." Morrison, in answer to questions by the undersigned , testified as follows: Q. Did you hear Mr. Jacobs testify with respect to the Respondent's Exhibit No. 1, which is the audit that he made? A. Yes, sir, I did. Q. Did you hear him testify that the date on that audit was May 9, 1952. A. Yes, sir, I did. Q. And did you hear him testify that the request for that audit, and that audit, was made ten days, not more than ten days, prior to the May 9, 1952 date? A. Yes sir. Q. And did you hear me ask him at least twice whether that was so and he gave me an affirmative answer? A. Yes, sir. The undersigned then further questioned Morrison, the question and answer being: Q. And do you remember testifying that after you had made that audit you then decided to sell the plant or close it? A. Yes, sir, I did. Attorney Blanton (for Jones) without objection then examined Morrison: Q. (By Mr. Blanton) Did you confer with anyone subsequent to the closing of the plant with reference to your operational costs? A. Yes, sir; my brother came down and asked for the records on the production and the cash disbursements concerning that production at the Malden plant and he reviewed them and -- Morrison further testified that he and his brother "reviewed" the books together and found that the Malden plant showed a loss. Also without exception by the General Counsel , Morrison testified as follows: Q. (By Mr. Blanton) Is that the report that your brother gave you , is that the report that you testified to as having received the first day upon which you cattle to your own conclusion to close the plant that the Trial Examiner interrogated you about awhile ago? # * # A. What is the question TRIAL EXAMINER PLOST: Read the question. The question was did you base decision , what it means, did you base this decision to get rid of the Malden plant on your brother's survey of your books? NEW MADRID MANUFACTURING COMPANY 137 A. Absolutely. Q. (By Trial Examiner Plost ) And you didn't base it, then, on any audit that you talked about in your first - - A. (Interrupting) I based it on his audit. Q. On his audit? A. His audit. Clearly in no event could the Respondent have based its decision to close its plant in "early November" on an audit ordered sometime the following May. The undersigned does not credit Morrison's testimonyt = to the effect that the Respondent closed its plant at Malden. Missouri , because the plant was operating at a loss, or that it was closed because of weather conditions , or both, and finds that the Respondent did not close the Malden plant for the reasons it pleaded as advanced at the hearing. Morrison further testified that sometime in mid-November he told Jones the plant would not reopen and the machinery was "up for sale "; that Jones "in turn came to me and asked if he could buy the equipment "; that thereafter on a date in November 1951, which he did not fix, he visited Portageville, Missouri, which is 31 miles from Malden and about 15 miles from New Madrid, the location of the Respondent 's principal plant, together with Jones ; that at Portageville he and Jones negotiated with representative Portageville businessmen at a meeting arranged in a theatre regarding the setting up of a plant by Jones; that Jones had not yet pur- chased the Malden plant machinery and did not in fact decide to buy it "until a week or two after that, towards the end of the month"; that he made only one trip to Portageville with Jones. Morrison did not fix the date of this meeting in Portageville which becomes confused be- yond clarification byreason ofanaffidavitis madebyMorrison whichfixes the dateasNovem- ber 26, and a letter dated November 12 and addressed to the employees which announces the sale of the equipment, and an advertisement in the "Portageville Review " under date of November 8 , which advertises "Help Wanted" for the Jones Manufacturing Company. Jones admitted he was consulted by "the committee " as to the wording of this advertise- ment. The undersigned asked Morrison, "Is it your testimony that prior to this time that you went there with Jones you had not talked to any of the merchants or groups of businessmen, in Portageville about moving a plant down there, or getting a plant for them. You can answer that yes or no." Morrison testified: A. I will, Mr. Examiner, until I search my mind thoroughly. I cannot answer it. Prior to Mr. Jones and I going down there I was never in Portageville contacting anyone con- cerning the plant there. That is what you want to know? Q. That is right. A. Right. Almost immediately Morrison changed his testimony to the effect that people from Portage- ville and other towns had "come up to see me with a view to work getting industry in there." He then testified as follows: Q. Didn't you just testify that prior to the time you went down with Mr . Jones to Portageville you had not talked to any group of businessmen or any group of individuals or this club or whatever it is, council, regarding putting a plant similar to yours into Portageville? A. I testified, Mr. Examiner , that I did not talk to anyone in Portageville concerning that. Q. You mean the people from Portageville . Then by that statement I am to understand, then, it means only that those people from Portageville came to where you were outside of Portageville and there you talked to them about the plant , is that your testimony? A. That's right, Mr. Examiner. Harold Jones , who was the Respondent 's plant manager at Malden throughout its opera- tions there, testified that he was first employed by the Respondent in June 1950; that he had no prior experience in manufacturing; that he had no experience in soliciting business; had no acquaintance in trade; and that he did not know the value of the machinery in the Malden plant. "An analysis of Morrison's testimony together with the undersigned 's evaluation thereof appears later herein. IS Used as probative evidence. See Trafford Coach Lines , 99 NLRB 399. 13 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jones further testified that on a date which he could fix no more definitely than "sometime in the first of November," he learned from Morrison that the machinery would be sold and told Morrison he "was interested" in its purchase. Morrison, in his testimony, admitted he knew Jones "had no money." According to Jones he asked Morrison to go with him to Portageville ; however , the record does not disclose where and howJones received any information which prompted him to seek a location there for his proposed enterprise. Jones testified: Well. sir, I wasn't very well acquainted with the community down there and wasn't too well acquainted with the established manufacturing plants, and I asked the assistance of Mr. Jerome Morrison. Jones further testified that he and Morrison made two trips to Portageville to negotiate with the local businessmen and that hisdecisiontobuy the machinery was not made until after these negotiations were completed. The undersigned has found that Morrison was confusing in his testimony with respect to the time of the purchase of the machinery by Jones and the negotiations in Portageville . Jones' testimony with respect to these dates is not confusing , it is an absolute blank. Jones refused to fix any dates. All attempts to make definite the dates of the Portageville meetings brought merely Jones ' statement that he could not recall the dates , which should be important in his life as fixing his passing from the rank of an employee to the status of an entrepreneur. Jones testified that on the first triphemade with Morrison they met "about every merchant in Portageville "; that the group was assembling in the theatre when he and Morrison arrived; that he did not know "who got the meeting together "; that he "probably said a few words"; that "Mr . Morrison made a talk" because he had asked Morrison "to negotiate for me be- cause I was green in the racket "; that the meeting lasted "something like an hour," that thereafter he and Morrison met with the Portageville merchants again in a meeting of less than 2 hours ' duration; that at this meeting "Well, I did some talking on the matter there and Mr. Morrison, we were explaining to them." Jones did not fix the date of either meeting. As a result of these negotiations Jones and the Portageville merchants entered into an oral agreement, later carried out by the Portageville group , whereby a labor survey was conducted, advertisements inserted in the local papers in Jones ' behalf, and Jones was given a building, rent free for 1 year. Following the Portageville agreement , according to Jones' testimony, he decided to buy the machinery at Malden and set up a factory in Portageville. Under date of November 28, 1951 , the Respondent and Jones entered into a purported agree- ment of sale whereby the Respondent under certain terms and conditions sold and transferred the Malden plant's machinery to Jones for use in Portageville , agreed to furnish Jones with work and finances and Jones in turn agreed to do work for the Respondent also subject to cer- tain terms and conditions. At the same time a conditional bill of sale for the machinery in accordance with the terms of the above- Inentioned agreement was signed. Under the agreement the Respondent is to deliver the machinery to Jones for the sum of $8,487, payable at the rate of $50 principal and $21. 25 interest, monthly. It is provided further that "no prepayment privileges are accorded second party ." (Jones) Title to the machinery , together with all future replacements thereof, does not pass , but re- mains vested in the Respondent until the purchase price is fully paid. 14 Jones agrees to confine his production to work furnished him by the Respondent and not to accept other work unless granted permission to do so in writing by the Respondent. i5 The Respondent agrees to finance Jones ' operations and had done so. Jones is permitted by the contract to draw $50 weekly. If he should desire a greater sum from his business he must first obtain the written consent of the Respondent. is Jones is to pay all taxes, insurance, license fees , and charges and is to keep the machinery in repair. The contract contains the following clause: Should the second party fail to keep and perform any of all his agreements herein con- tained, and to promptly pay, when due, any and all sums provided for hereunder , or should i4Under the contract Jones could not acquire title to the machinery in less than 14 years. 15The record shows that since the Portageville plant began operations Jones has had but one "outside" job amounting to $349.33. This order was procured for Jones by the Respond- ent's president. is It is interesting to note that Jones ' salary at Malden was $50 per week. NEW MADRID MANUFACTURING COMPANY 139 second party remove or attempt to remove the said machinery , supplies , or equipment, and attempt to lend, sell, or incumber said machinery and equipment , or whenever the first party or his assigns shall deem the debt herein provided insecure said first party may, without demand or notice, takepossession ofsaid machinery and equipment wherever found and without process of law, and all rights of the second party hereunder shall cease and terminate thereupon absolutely. Party of the second part does hereby waive any right of action against seller growing out of the removal, repossession, or retention of said machinery and equipment or otherwise , and hereby consents that and expressly agrees that all payments made shall belong to and be retained by the first party as liquidated damages for the nonfulfillment of this agreement and for the rental value thereof. Conclusions as to the "Contract of Sale" The undersigned cannot be persuaded that a "contract" which purports to bind one party to work only for another , who in turn may cancel the agreement at will , without notice or com- pensation for any acquired equity , created by money payment or lapse of time, should it deem the payment of a debt set up under the contract to be insecure, (although the debt is payable in small installments over a 14-year period without the right of prepayment) is a real agree- ment, The undersigned believes the contract shows on its very face that it is only a sham de- signed to cover something not apparent in the agreement. 17 The undersigned, on all the evidence considered as a whole and from his observation of the witnesses while testifying , finds that the purported agreement signed by the Respondent and Jones at New Madrid , Missouri , on November 28, 1951 , is not a real contract , that it was not intended to divest the Respondent of its title to the Malden plant machinery and did not do so, that it was not intended to make Jones independent of the Respondent as the owner of a business in Portageville, Missouri, operating under the name of Harold Jones d/b/a Jones Manu- facturing Company, and did not do so, and that said contract is a sham, and void as a defense to any of the allegations of unfair labor practices alleged in the complaint. The undersigned further finds that the Respondent did not legally divest itself of the machin- ery of the Malden plant and that the Respondent wholly controls the operations, and that the Respondent is in fact the owner , of that business operating at Portageville , Missouri, under the style and name of Harold Jones d/b/a Jones Manufacturing Company. The Malden plant machinery was removed to Portageville , where operations similar to those carried on previously at Malden were actually begun on December 26, 1951 , under the style and name of Jones Manufacturing Company. Advertisements for help were inserted in the local paper, according to Jones, by the "com- mittee." It has been found that one such advertisement appeared November 8 Jones did not employ any of the employees laid off at Malden. Rachel House, one of those laid off at Malden , testified credibly without contradiction, that she applied for work at Portageville before the plant opened; that Jones told her "he would let her know "; that she later wrote Jones asking for work and was never called or offered work at Portageville. Jones also admitted that he prepared an application for employment given to all applicants at Portageville, which application inquired into the union membership of the applicant. Jones also admitted he had full knowledge of the fact that the Union had won the election October 31. Jack Kinder, 18 a member of abusinessmen's club in Malden, testified to a conversation with Jones, as follows: In the course of the conversation I asked him the reasons for the company moving to Portageville and he said "Well , the people over there are going to cooperate in keeping the union out. " 17Jones testified that he is now 24 years old and has a very limited business experience. As it is within the realm of the possible that Jones actually believes himself bound by an agree- ment which creates obligations cancellable at will by the Respondent from which Jones cannot escape, but is bound to work for the Respondent at his present fixed "drawing account," the undersigned, in all kindness, directs Jones' attention to the Thirteenth Amendment to the Constitution of the United States as a possible means of escape should he ever desire to free himself of the burden of his "obligation." 18 Kinder was a reluctant witness . He evaded answering questions, finally stated, "I am here under protest," and in effect stated that he did not care to testify against Jones. The under- signed then made the following statement, after which Kinder testified. TRIAL EXAMINER PLOST: Mr. Witness, I want to impress this on you. I know that you live in this community. I know that you are undoubtedly a friend of Mr. Jones. you 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Credibility The undersigned has credited the testimony of all witnesses called by both the General Counsel and the Respondent with two exceptions . In some instances specific findings of credibil- ity have been made, in others where the testimony was not in dispute or merely corroborative the findings on the evidence show the credit given the witness. The undersigned has not credited the testimony of Morrison or Jones with respect to many vital matters. Morrison and Jones were evasive witnesses. Their testimony is largely self-contradictory, as shown by the analysis thereof as made in this report. The undersigned on the entire record, including his observa- tion of the witnesses , does not believe either Morrison or Jones to be truthful witnesses worthy of credence. Conclusion Having found that the purported sale of the Malden plant machinery by the Respondent to Jones was not a valid sale but a sham to evade the Respondent's unfair labor practices, and having found that the Malden plant was closed and the employees laid off in October 1951 in order to combat the Union, and having found that the plant was moved to and set up in Portage- ville not as an independent business ofHaroldJones but as an integral part of the Respondent's business, the undersigned now therefore finds that the Respondent locked out its employees at Malden by laying them off and closing the plant in October 1951, as herein found, and that by such acts it discriminatorily discharged said employees. Upon all the circumstances in the case, the record considered as a whole, and his observation of the witnesses, the undersigned is convinced and finds the contention of the General Counsel that said employees were dis- charged because of their membership in and activities on behalf of the Union, is well sustained by the evidence and therefore finds that the Respondent discriminatorily discharged them in violation of the Act. i9 The undersigned further finds that by said illegal conduct the Respondent has discriminated in regard to the hire and tenure of employment of its employees, has discouraged membership in a labor organization , and has interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section7ofthe Act, more particularly Section 8 (a) (3) there- of. m The undersigned has made no determination of Jones' business as affecting interstate com- merce, as he believes and finds that Jones and the operation at Portageville, Missouri, under the name of Jones Manufacturing Company, is really the operation of the Respondent. The Proposed Findings and Conclusions Jones filed 11 proposed findings of fact and 7 proposed conclusions of law with the under- signed. All are rejected. The Respondent filed seven proposed findings of fact. The undersigned accepts those num- bered "2" and "3 " and rejects all others. The Respondent also filed five proposed conclusions of law. The undersigned accepts the one numbered "3 " and rejects all others. Final Conclusions Upon all the foregoing, the entire record, the evidence considered as a whole, and his obser- vation of the witnesses, the undersigned finds that: perhaps have an interest of a friend in this thing, but this is a matter that is called in the public interest, you have a duty as a citizen to tell the whole truth as you recall it and nothing but the truth no matter what your friendship or relationship is with anyone connected with this case. You are a sworn witness. I think you understand what I mean by that. Now you answer these questions. You may proceed, Mr. Kennedy. 19 Undoubtedly some of those laid off were not members or active on behalf of the Union, however, as such employees were included in the lockout the coercive effect on the employees is the same as if they were union adherents. See Capital City Candy Co., 71 NLRB 447. 20 Assuming arguendo that Jones believes himself bound by a valid contract and further as- suming the contract to be valid, Jones would still be liable to the Union and the discriminatees inasmuch as (a) he took with full knowledge of the Respondent's obligations to the Union and the discriminatees, having in fact participated in the Respondent's unfair labor prac- tices (see The L. B. Hosiery Co., Incorporated, 88 NLRB 1000), and (b) his operations are clearly under the complete control of the Respondent. (See N.L.R.B. v. Somerset Classics, Inc., et al., 193 F. 2d 613 (C.A. 2).) NEW MADRID MANUFACTURING COMPANY 141 1. By Harold Jones' statement to Rachel House, to the effect that the plant would close and be moved away if the Union succeeded in organizing the Respondent's employees, his similar statements to Nora Skaggs and DollieKing, his statement to Betty Jo Younger to the effect that the cutters would not furnish work for a union plant and Jones ' interrogation of Mildred Canady, Geraldine Corder, and Betty JoYounger, and byRuth McCarver' s statements to Tylene Butler, and by Jerome Morrison's speech to the employees at the Halloween party on October 29, and by Jones' inquiries into the union membership of applicants for employment at Portageville, all as hereinabove found, the Respondent has interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed in Section 7 of the Act. 2. By locking out and discharging its employees whose names are set forth in Appendix A hereto, which is made a part hereof, on the dates set opposite their names the discrimination dating from the day of the layoff, as herein found, the Respondent has discouraged membership in a labor organization by discrimination in regard to the hire and tenure of employment of said employees in violation of Section 8 (a) (3) of the Act. 3. By refusing to bargain with the Union as found in section A 1 and 2, above, the Re- spondent has restrained and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has more particularly violated Section 8 (a) (5) thereof. N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent set forth in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices , the undersigned will recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Since it has been found that the Respondent has refused to bargain collectively with the Union, the statutory representive of all employees inanappropriate unit, it will be recommended that the Respondent bargain collectively with the Union and embody any understanding reached in a signed agreement. Since it has been found that the Respondent has discriminatorily locked out and discharged employees whose names appear on Appendix A hereto, it will be recommended that the Re- spondent offer to all of them immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, and that each be made whole for anylossof pay they may have suffered by reason of the dis- crimination against them, by payment to each of them of a sum of money equal to that which each would normally have earned as wages from the date of the discrimination to the date of the Respondent 's offer of reinstatement , less their net earnings during such period . n The back pay shall be computed in the manner established by the Board , 22 and the Respondent shall make available to the Board its payroll and other records to facilitate the checking of amounts due. Inasmuch as effectuation of the policies of the Act is achieved by restoration insofar as possible of the status quo existing prior to the commission of the unfair labor practices; and as it has been found that the Respondent closed its Malden . Missouri, plant and transferred its Malden operations to Portageville in order to discourage membership in the Union and thwart the Union in its legal right to bargain collectively for the Respondent's employees within an appropriate unit; and as it has been found that the closing of the plant at Malden and the subsequent transfer of the Respondent 's operations at Malden to a new plant at Portage- ville constituted an unfair labor practice , the undersigned believes and will recommend that the status quo can be restored by either of the following means: (a) Resume operations at Malden. Missouri, and at such plant offer reinstatement to the em- ployees listed in Appendix A. and otherwise make them whole as herein recommended. (b) Offer said employees reinstatement and equivalent employment at its plant in Portage- ville, and pay the expense of removing their families and household effects to Portageville, or compensate them for any expenses they will incur by their daily commuting from their present homes to Portageville, and further make them whole as herein provided. 21 Crossett Lumber Company , 8 NLRB 440. 22 F. W. Woolworth Company, 90 NLRB 289. 14 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned will shape his recommendations so that the Respondent may at his election expressed in writing to the Regional Director for the Fourteenth Region, offer said employees listed in Appendix A reinstatement at Malden , Missouri , or at Portageville , Missouri. If re- instatement is at Portageville , employees hired at the Portageville plant since it was opened shall be discharged if necessary to provide employment for said discriminatees. Since it has been found that the Respondent did not illegally discharge Lena Livingston and Eris Stricklin, the undersigned will recommend that the complaint be dismissed insofar as it so alleges. The character and scope of the unfair labor practices engaged in by the Respondent indicate an intent to defeat self-organization -of its employees. It will therefore be recommended that the Respondent cease and desist from ' in any manner interfering with, restraining, and co- ercing its employees in the exercise of the rights guaranteed by the Act. Upon the basis of the above findings of fact and upon the entire record in the case , the under- signed makes the following: CONCLUSIONS OF LAW 1. The operations of the Respondent , New Madrid Manufacturing Company, constitute trade, traffic, and commerce among the several States within the meaning of Section 2 (6) and (7) of the Act. 2. The operation at Portageville , Missouri, under thestyleand name of Harold Jones d/b/a Jones Manufacturing Company , is the operation of the Respondent , New Madrid Manufacturing Company, New Madrid, Missouri. 3. International Ladies ' Garment Workers Union, A.F.L., is a labor organization within the meaning of Section 2(5) of the Act and admits employees of the Respondent to membership. 4. All production employees employed in the Respondent 's plant at Malden, Missouri, on the payroll of said plant for the period ending September 29, 1951, excluding executive, office, and clerical employees, foreladies , foremen, supervisors , watchmen, guards, and all other employees excluded under the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. International Ladies' Garment Workers Union. A.F.L., was on November 12, 1951, and at all times thereafter has been , and now is, the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 6. By refusing on November 12, 1951 , and at all times thereafter , to bargain collectively with the above- named labor organization as the exclusive representative of its employees in the appropriate unit , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 7. By discriminating in regard to the hire and tenure of employment of the employees listed in Appendix Ahereto, thereby discouraging membership in a labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 ( 6) and ( 7) of the Act. .; 9. The Respondent has not engaged in unfair labor practices by discharging Lena Livingston and Eris Stricklin. [Recommendations omitted from publication.] APPENDIX A NEW MADRID MANUFACTURING COMPANY List of Girls Discharged at Malden, Missouri Date Name Discharged Name Date Discharged Name Date Discharged Edna Alexander 10/4 Eva Teeters 10/5 Ada Warren 10/12 Geraldine Jerry Corder 10/4 Gladys Holcomb 10/5 Pauline Warren 10/12 Rachel House 10/4 Mae Ceile Blade 10/5 Elsie Bridgeforth 10/12 Blanche Galloway 10/4 Thelma Harris 10/5 Billy McKinsey 10/12 Lela Collison 10/4 Louise Losh 10/5 Letty Jones 10/12 Winme Smith 10/4 Tylene Butler 10/9 Agnes Hardesty 10/12 Mildred Canady 10/4 Nora Skaggs 10/10 Betty Jo Younger 10/12 Cecile Blake 10/5 Loreta Oxley 10/10 Vernice Russell 10/12 Flora Harvel 10/5 Ruth Fields 10/10 Madge Pyle 10/12 Thelma Barton 10/5 Elsie Haywood 10/10 Lura McMunn 10/16 Ollie Mae Gentry 10/5 Dollie King 10/11 Billy Kirkpatrick 10/20 Janice Bennett 10/5 Mildred Irby 10/12