Model Blouse Co.

In the Matter Of MODEL BLOUSE CO., ELIAS SAVADA, INDIVIDUALLY AND DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF MODEL BLOUSE CO. AND ALSO DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF SAVADA BROTHERS and FEDERAL LABOR UNION No. 21560 Cases Nos. R-814 and C-1141.-Decided September 7, 1939 Clothing Manufacturing Industry-Interference, Restraint, and Coercion: anti-union statements ; disparaging Union and describing organizers as rack- eteers; assistance to rival , unaffiliated labor organization ; employer ordered to cease such practices-Discrimination: discharges for union activity, some employees reemployed at inferior positions , charges sustained ; discharge be- cause of testimony given at a bearing, charges not sustained as to some em- ployees-Reinstatement Ordered: of employees discharged , including those reemployed at inferior positions-Back Pay: to date of offer of reinstatement to former position-Investigation of Representatives : controversy concerning representation of employees : employer did not answer letter from petitioning union; rival labor organization , subsequently organized , also claims majority- Unit Appropriate for Collective Bargaining: production employees including inspectors and packers, but excluding foremen, foreladies , and other supervisory employees, janitors , truck drivers, mechanics , office help, and employees in ship- ping department ; employer-wide unit rejected because of lack of history of collective bargaining ; unit limited to one plant of the respondent-Election Ordered: to insure satisfactory bargaining relations by elimination of doubt ; determination of time for and eligibility date postponed because of unfair labor practices-Procedure: record in representation case reopened after decision, consolidated with hearing on charges subsequently filed ; findings of fact and conclusions of law in previous decision set aside in so far as superseded or modified by present decision. Mr. Jerome I. Macht, for the Board. Mr. Max J. Liebowitz, of New York City, for the respondent. Mr. Benjamin R. Simons and Mr. M. Herbert Syme, by Mr. Benja- min R. Simons and Mr. Maurice Abrams, of Philadelphia, Pa., for the Union. Miss Mary Weston and Mr. Isadore Katz, both of 'Philadelphia, Pa., for the Amalgamated. Mr. Nathaniel Rogovoy, of Millville, N. J., for Edward V. Barry and Model Workers Association. Mr. David Rein, of counsel to the Board. 15 N. L. R. B., No. 19. 133 199549-39-vol. 15-10 :1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION ORDER AND SECOND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 21, 1938, Federal Labor Union No. 21560, herein called -the Union, affiliated with the American Federation of Labor, herein called the A. F. of L., filed with the Regional Director for the Fourth Region (Philadelphia, Pennsylvania) a petition alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Model Blouse Co., Elias Savada, individually and doing business under the firm name and style of Model Blouse Co., and also doing business under the firm name and style of Savada Brothers, herein called the respondent,? at his plant at Millville, New Jersey, and requesting an investigation and certification of rep- resentatives pursuant to Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. The National Labor Relations Board, herein called the Board, thereupon ordered an in- vestigation of the question concerning representation and, pursuant to notice, a hearing was held on the petition on May 19, 20, 21, and :23, 1938, before a Trial Examiner duly designated by the Board. On July 30, 1938, the Board issued its Decision and Direction. of Election, in which it found that all the production employees of the respondent at his Millville, New Jersey, plant, excluding foremen, foreladies, and other supervisory employees, janitors, packers, truck drivers, mechanics, and office help, and including inspectors constitute a unit appropriate for the purposes of collective bargaining, and in which it directed the Regional Director for the Fourth Region to conduct an election by secret ballot among these employees, to de- termine whether or not they desired to be represented by the Union for the purposes of collective bargaining.2 Thereafter, on August 9, 1938, the Union filed a "motion to reopen hearing for further con- •sideration," and the Board on August 13, 1938, issued an amendment to its Direction of Election postponing the date of the election to such time as the Board might in the future direct.3 Meanwhile, on July 6, 1938,. the Union had filed charges alleging that. the respondent had engaged in unfair labor practices, and on October 10, 1938,. the Board, acting pursuant to Article III, Section 1 The petition as originally filed designated the respondent as Model Blouse Company. However, it was amended on May 12, 1938 , to show the correct designation of the respondent. 2 8 N. L. R. B. 725. 8 8 N. L. R. B. 729. .. • MODEL BLOUSE CO. 135 10 (c) (2), and Article II, Section 37 (b), of National'Labor Rela- tions Board Rules and Regulations-Series 1, as amended, issued an order consolidating, for purposes of hearing and for all other pur- poses, the representation case and the case initiated by the filing of the charges, and ordering that one record of the hearing be made.4 Upon these charges and upon amended charges, duly filed by the Union with the Regional Director for the Fourth Region, the Board, by the Regional Director, issued its complaint dated October 26, 1938, against the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (4) and Section 2 (6) and (7) of they Act. A copy of the complaint accompanied by a notice of hearing on the consolidated cases was duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the respondent (1) by threats, speeches, misstate- ments, and misrepresentations, attempted to discourage and dis- couraged his employees from membership in and affiliation with the Union and by other acts interfered with, restrained, and coerced his employees in the free choice of their representatives, (2) ter- minated the employment of and denied their regular employment to Doris Scroggy, Mamie Pancoast, Thelma Kirby, and Florence Connelly, and refused to reinstate these employees to their former positions of employment for the reason that each of them had joined and assisted the Union and engaged in concerted activities with other employees for their mutual aid and protection, and (3) terminated the employment of and denied their regular employment to Thelma Kirby and Florence Connelly and refused to reinstate Doris Scroggy, Mamie Pancoast, Thelma Kirby, and Florence Connelly for the further reason that each of them had given testimony at the above- mentioned hearing on the representation case in May 1938. On October 31, 1938, notice was served upon the respondent and the Union that a motion would be made at the hearing to amend the complaint to add allegations that the respondent had discouraged his employees from membership in and affiliation with the Union by (1) initiating the organization of Model Workers Association, herein called the Association, (2) ' permitting the officers, agents, and members of said Association to solicit membership and collect dues on the plant premises during working hours, while denying the same privileges to the Union, and (3) permitting the posting of notices of meetings of said Association on the plant premises, and the circu- ' The order of consolidation designated the respondent in Case No. C-1141 as Model Blouse Company. On October 25, 1938, an amended order of consolidation to show the proper designation of the respondent was issued. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARDY lation of such notices during working hours, while denying the same privileges to the Union. On November 1, 1938, Amalgamated Clothing Workers of America, herein called the Amalgamated, filed with the Regional Director a petition for leave to intervene in the consolidated proceedings with respect to the issues concerning representation, and on November 2, 1938, the Regional Director granted the Amalgamated leave to intervene in the representation case. Pursuant to notice, a hearing on the. consolidated proceedings was held at Millville, New Jersey, from November 3 through November 22, 1938, before Charles A. Wood, the Trial Examiner duly desig- nated by the Board. The Board, the respondent, the Union, the Association, and the Amalgamated were represented by counsel and participated in the hearing. All parties were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the opening of the hearing on November 3, a motion by counsel for the Board to amend the complaint in the respects covered by the previous notice of intention to amend, was granted by the Trial Examiner without objection. On the same day, the respondent filed his answer to the complaint as amended, denying the unfair labor practices alleged therein. The respondent objected to the designa- tion of the Trial Examiner, arguing that since the hearing was a continuation of the hearing held in May, the same Trial Examiner who had sat on the hearing in May should have been designated as Trial Examiner for the hearing in November. This objection was overruled by the Trial Examiner and his ruling is hereby affirmed. On November 4, during the course of the hearing, the complaint was further amended without objection to allege that the respondent had engaged in unfair labor practices by spying upon and keeping under surveillance the meetings of the Union. On November 9, after the filing of additional charges by the Union, the complaint was again amended, without objection to allege that the respondent (1) had transferred, demoted, and caused Mary Kolodchak to leave her employment and refused to reinstate her to her former position be- cause- she had joined and assisted the Union and engaged in concerted activities with other employees for their mutual aid and protection, and had refused to reinstate her to her former position for the further reason that she had given testimony in the above-mentioned hearing on the representation case in May 1938, and (2) had termi- nated the employment of and denied her regular employment to Lydia Fox and refused to reinstate her to her former position of employment because she had joined and assisted the Union, had engaged in con- MODEL BLOUSE CO. 137 ,certed :activities with other employees for their mutual aid and pro- tection, .and had given testimony in the hearing commencing Novem- ber 3. No formal answer was filed to the amendments made on November 4 and 9, 1938. All of said allegations will be deemed denied by the respondent, having been put in issue by the examina- tion of witnesses, the introduction of evidence, and argument upon the merits in .a brief filed by the respondent with the Board. At the close of the Board's case the Trial Examiner granted with- out objection .a motion by counsel for the Board to amend the com- 1plaint to .conform to the proof. The motion was limited to the cor- rection of "minor errors." A motion by the respondent to dismiss the complaint,at the close of the Board's case, and repeated motions by the Union to dismiss the petition for intervention filed by the Amalgamated were denied by the Trial Examiner. During the course of the hearing, the Trial Examiner made several other rulings on motions and on objections to the admission of evidence. The -Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial,errors were committed. These rulings are hereby :affirmed. ',On or about January 24, 1939, the Trial Examiner filed his Inter- mediate Report, copies of which were duly served upon all parties, in Which he found that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section .8 ;(1); (3), and (4) of the Act, and accordingly, recommended that the respondent cease and desist from his unfair labor practices, rein- state with back pay to their former positions of employment Doris Scroggy, Mamie Pancoast, Thelma Kirby, Florence Connelly, Mary Kolodchak, and Lydia Fox; and take certain other appropriate ac- tion to remedy the situation brought about by the respondent's un- -air labor practices. The Trial Examiner further recommended that the :amended :complaint be dismissed for insufficient proof with re- spect to the allegations that the respondent (1) terminated the em- ployment of Thelma Kirby and Florence Connelly and refused to reinstate Doris 'Scroggy, Mamie Pancoast, Thelma Kirby, Florence Connelly and Mary Kolodchak for the reason that each of them had given testimony at. the hearing on the representation case in May 1938; (2) permitted the officers, agents, and members of the Associa- tion to solicit membership and collect dues on the plant premises during working hours, while denying the same privileges to the Union, and '(3) permitted the posting of notices of meetings of the Association on the plant premises, and the circulation of such notices during working hours, while denying the same privileges to the Union. On February 21, 1939, the respondent filed exceptions to the Inter- mediate Report, and on March 16, 1939, filed a brief in support of 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said exceptions. The parties, although advised of their opportunity for oral argument before the Board, made no request therefor. The Board has reviewed the exceptions to the Intermediate Report and has considered the brief filed in support thereof, and in so far as the exceptions are inconsistent with the findings, conclusions, and order hereinafter set forth, finds them to be without merit. In our previous Decision on July 30, 1938,' the Board made certain findings of fact and conclusions of law. We have reexamined these findings of fact and conclusions of law, and we hereby order that these findings of fact and conclusions of law be set aside in so far as they are inconsistent with or superseded by the findings, conclu- sions, and order hereinafter set forth. Upon the entire record in the case, including the transcript of- testimony of and the exhibits introduced at the hearing conducted on May 19, 20, 21, and 23, 193$, as well as the transcript of testimony of and the exhibits introduced at the hearing conducted from Novem- ber 3 through November 22, 1938, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Elias Savada, maintains his principal office in New York City under the name of Savada Brothers. He operates plants under different names and styles in Troy, New York, New York, City, and Millville, Landisville, and Wheat Road, New Jer- sey.6 These proceedings involve only the plant at Millville, New Jersey, which is operated under the name and style of Model Blouse Co. The respondent manufactures blouses, shirts, pajamas, and under- wear at the Millville plant. The raw materials for the manufacture of these goods are shipped to Millville, New Jersey, by the respond- ent from his New York City plant. The finished products are shipped back to the New York City Ace to be sold and distributed there by the respondent. The value of the finished products shipped back to New York varies from $20,000 to $50,000 for a weekly period. Approximately 460 persons are employed at the Millville plant. II. THE ORGANIZATIONS INVOLVED Federal Labor Union No. 21560 is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the respondent, at his Millville, New Jersey, plant, but excluding supervisory employees. 8 N. L. R. B. 725. The respondent also ships. garments to be sewed under a contract. arrangement to a plant at Ephrata, Pennsylvania. See infra, Section VIII. MODEL BLOUSE CO. 139v Model Workers Association was an unaffiliated labor organization. admitting to membership employees of the respondent at his Mill- Ville, New Jersey, plant, including supervisory employees.? As- described below, during the course of the hearing this organization-. was disbanded. Amalgamated Clothing Workers of America is a labor organiza- tion admitting to membership employees of the respondent at all his- plants, but excluding supervisory employees. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. The anti=union statements On March 7, 1938, the girls employed in the pajama department of the respondent's Millville plant went on strike in protest against a_ wage cut and were joined by the remainder of the girls in the plant. As a result of this action, the wage cut was rescinded, and the plant resumed normal operations the next day. The leaders of this strike- decided to organize the employees of the plant into a labor organiza- tion. For this purpose, they secured the assistance of Raymond-- Maines, the president of a local union affiliated with the A. F. of L.,. and one McGurrin who was sent to Millville from the Philadelphia: office of the A. F. of L. After a week of organizing activity, the Union was formed at a meeting of employees on March 14. At this- meeting the Union elected officers, all of whom, with the exception of the president, Maines, were employees of the respondent." The other- officers elected were Viola Felmey, vice president, Doris Scroggy,, treasurer, Florence Connelly, recording secretary, and Mary Kolod- chak, financial secretary. On March 28, the Union received a char- ter as a Federal local of the A. F. of L. On the same date, an. advisory board was chosen consisting of Nellie Clark; Charlotte Hess,_ Lillian Pancoast, Mamie Pancoast, Etta Hand, and Evelyn Walker,- all employees of the respondent.' On or about March 22, Edward McTague, general manager of the- Millville plant, called the employees of the plant to a meeting in the- pressing room during working hours, and addressed them on the sub- ject of unions. According to the testimony of a number of employees, called as witnesses by the Board,10 McTague spoke against unions in, ' Supervisory employees, however, were not permitted under the bylaws to hold an office- in the Association. 8 Viola Felmey succeeded Maines as president sometime in April or early May. Lydia Fox became a member of the advisory board in about the middle of April. 10 These witnesses are Olga' Brown, Doris Scroggy, Florence Connelly, Mamie Pancoast, and Rose Hufsey. It was stipulated at the hearing that if Etta Hand, Herberta Walters„ Alma Davis,, and Lynn M. Newcomb were called to the stand, they would substantiate the testimony of these witnesses as to McTague 's speech. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD general and the A. F. of L. in particular. Their testimony is in sum- mary as follows : MeTague introduced his talk with the statement that he had received complaints from several girls that other girls were "pestering them" and that he wished to "get things cleared up." He then stated that the union organizers had come to the Millville plant for the purpose of taking the employees' money; would "sell" the employees "out to the highest bidder"; and that unions always caused "trouble and hard feelings." He described the A. F. of L. organizers as "racketeers" and said that these organizers would sell the em- ployees "down the river." He told the assembled employees that they should not join the A. F. of L. since it was concerned with the "steel industry instead of clothing workers." McTague also said, "Look at your officers and study them. If you ask me they are all half- cocked." He informed the assembled employees that if they wanted a union they "could start one ... here instead of giving ... money to the outsiders." He instructed them to get together to determine whether or not they desired a, union, adding "If you want a union, I will get you a good union." McTague's testimony with regard to this speech was the only evi- dence introduced by the respondent to rebut the testimony recounted above. MeTague testified that in his speech he merely cautioned the, employees against "racketeering" unions and advised them to "inves- tigate :.. first," saying, "it would be well to look into the matter thoroughly before you give anybody your money." McTague denied that these remarks were aimed against the Union or the A. F. of L., or that he mentioned the name of any union in the course of his speech. Even if his testimony be credited in this regard, it is obvious that the employees must have understood his remarks to apply to the Union since it was the only labor organization that was active among them. That McTague in fact intended to leave this impression among the employees is substantiated by his admission that he was aware that the Union was organizing among the employees at the time.h1 McTague explained his failure to correct this impression at a later date on the ground that he "was rather skeptical on talking to them [the employees] about unions." The need to caution the employees against racketeering unions, McTague explained at the hearing, arose from a telephone call he had received from a Mr. McGurk,12 a few days before the date of McTague's speech. He testified that in the course of this conversa- tion, McGurk asked him to sign up with some unnamed union, but that he, McTague, became suspicious because McGurk "didn't seem 11 Moreover, he spoke to Viola Felmey in the same vein in April 1938 with the knowledge that Felmey was active for the Union. These remarks are set out below at p. 141. 12 McTague, on the witness stand , was not certain as to the name of this individual and thought it might be McGurk, Gurkin, Gurk, or Quirk. MODEL BLOUSE CO. 141 to know anything about" the "garment industry." MeTague testi- fied further that he then learned from some unnamed machine shop, in Philadelphia that McGurk "had no connection with any bona fide union," and therefore felt it incumbent upon him to caution the employees against union organizers. Aside from McTague's own testimony there is no other evidence to support this story or to establish the presence of this alleged organizer upon the scene. If McTague intended by his testimony to refer to McGurrin, the organizer sent to Millville by the A. F. of L., he would hardly have sought to check the latter's credentials through a machine shop rather than through the headquarters of the A. F. of L. In view of the contradictions, inconsistencies, and improbabilities in McTague's account of his speech and his reasons for giving it, and the vagueness of his testimony on vital points, we cannot give cre- dence to his testimony as to the purport of the speech and the reason he made the speech.13 We find that the testimony of the employees concerning his speech, as set forth above, is substantially correct. That the reason for McTague's speech was his desire to defeat the efforts of the Union at organization rather than to caution the em- ployees against racketeers is further supported by the testimony of several witnesses with respect to a similar occurrence in 1935.14 This testimony, undenied by McTague, establishes that McTague success- fully employed a similar technique to.defeat an effort by the Amal- gamated to organize the employees in July 1935. On this previous occasion, he also called the employees of the plant together and in- formed them that they did not need a union; that if they wanted one, they could start one "right in the plant"; that there was no need for the employees to give money to "outsiders." At that time he also described union organizers as "racketeers and reds" and added that the Amalgamated was "nothing but a bunch of Bolsheviks." McTague's speech acted as a check on organizing activity by the union members and at least one employee left the Union as a result of the speech. We find that McTague's speech on March 22, 1938, was designed to and did discourage membership in the Union. We have referred above to certain statements made to Viola Fel- mey by McTague in April.16 Felmey testified that on that occasion McTague told her that he was going to discharge her and that she 18 With respect to the general testimony of McTague, the Trial Examiner in his Inter- mediate Report found as follows : The undersigned was unimpressed by the demeanor of Edward McTague . . . Furthermore [his] testimony ... , subjectas it is to self-contradiction, and contra- diction by other witnesses, leaves grave doubt as to credibility. 11 These witnesses are Viola Felmey, Olga Brown, Bertha Manning, and Margaret Rowan. 15 See av.pra, footnote 11. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could inform her friends of this intention. McTague also said, according to Felmey's testimony, "You think you are a big shot. You got in with a bunch of racketeers. You think you are a big shot, you :are that small. I am going to stand and watch you. The next girl you talk to will be fired." We find that Felmey's version of this incident is correct. McTague did not deny making these statements to Felmey, but testified that he found it necessary to speak to her -about her activities in behalf of the Union, because she "was all out ,of reason" and "was trying to upset the whole place." He did not, however, offer any specific instances of misconduct by Felmey, nor venture to explain in what respect her actions warranted a reprimand 'couched in the words attributed to him. We find that the respondent, in March and April 1938, by the mak- ing of the anti-union statements set forth above, by threat of dis- ,charge for activity on behalf of the Union, by warning his employees not to join, assist, or remain members of the Union, and by per- suading them not to assist or remain members of the Union, and by proposing the formation, with his assistance, of a labor organization, interfered with, restrained, and coerced his employees in the exercise ,of the rights guaranteed in Section 7 of the Act. 2. Model Workers Association A few days before the opening of the hearing on the representa- tion case on May 19, 1938, several employees of the respondent includ- ing Andrew Hoppes, Anna Davis, Mary Fisher, and Nellie McAvoy circulated throughout the plant a petition stating that the signatories thereto did not wish to be represented by the Union or any other labor organization. Lydia Fox saw James McTague, a foreman. in -the plant and the brother of Edward McTague, hand a copy of the petition to Nellie McAvoy who then circulated it throughout the pressing room. The petition was circulated during working hours in -the presence of foremen and foreladies. Its admitted, purpose was for introduction at the hearing on the representation case in order to defeat the attempt of the Union to be certified by the Board as the representative of the employees. After circulation the petition was turned over to the respondent, who introduced it into evidence at that hearing.16 la In our Decision on July 30, 1938 , 8 N. L. R . B., 725, on the basis of the record in the representation case , we said of this petition : The employees who identified the petition for the Company [ respondent ] testified that they had circulated the petition in the plant of their own initiative and that company officials had played no part in its circulation . Their testimony on this point, however, was vague and indefinite . They are unable to relate with any degree of particularity the circumstances of its origin and circulation . One of the witnesses could say little more than that he had received the petition from some unknown person, had circulated it throughout his department and had then returned it to another unknown person. MODEL BLOUSE CO. 143 We find that the respondent, by' sponsoring and assisting in the circulation of- this anti-union petition, interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. Oi July 30, 1938, the Board issued its Decision directing an elec- tion within 15 days from the date of the Decision among the respond- ent's employees to determine whether or not they wished to be repre- -sented by the Union. About 2 days later, Andrew Hoppes, Anna Davis, Nellie McAvoy, and other employees who had been active in the circulation of the petition met at Nellie McAvoy's house and -decided to form a club for the purpose of "combatting outside unions." On or about August 3, a number of these employees left the plant before quitting time. They stationed themselves outside the plant, to be in a position, as the remainder of the employees left the plant at the regular quitting time, to distribute among them Iea.flets announcing the organization meeting of this club. The same practice was followed for the distribution on August 8 of an :announcement of a second meeting of this club. The meeting on August 4 was opened by Marie Lehman, who -introduced Hoppes. The latter spoke on the purposes of the organ- ization in language which closely resembled that which McTague had used in his speech of March 22. He described unions as "a ,racket," He stated that the Union only wanted the employees' ;money. and urged them to keep their money in Millville. This 'was followed by a similar speech by Elizabeth Munyon, another of re- _spondent's employees, who described her previous experience with unions and concluded that "they were all rackets." On August 6 a statement appeared in the Millville Daily Republican asserting that the "real purpose of the meeting Was to organize ourselves into a unit to combat outside influences." The statement was signed by the Organization Committee, including among others, Hoppes, Leh- ,man, and McAvoy.l' Evidence of this kind suggests that the signatures to. this petition may have been obtained with the Company's assistance , but in the absence of more positive evidence to that effect , doubt is cast upon the majority status of the Union by the signatures on the petition introduced by the Company. 17 This statement reads in part as follows : The real purpose of the meeting was to organize ourselves into a unit to combat outside influences which are trying to force .upon its something we do not want . . . Outsiders are trying to stuff a union down our throats by claiming they have a majority of workers in our plant. At a hearing before the National Labor Relations Board held in Millville recently it was proven that instead of a majority they had a small minority. Under the circumstances the Labor Board ordered a vote taken in the plant within the next two weeks. Those of us who felt we did not wish to be stampeded into a labor organization not of our own choosing decided to drag the thing into the open as we felt we could not tolerate this outside interference any longer . We are fully capable of looking - after ourselves without having to have utter strangers come into our lives with perhaps grievous consequences with which we are all very familiar. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the meeting on August 8 officers were chosen. Andrew Hoppes was elected president; Marie Lehman vice president; Hazel Maley financial secretary; Edward Barry recording secretary ; and Anna Davis treasurer.'8 On August 22 the organization chose the name of Model Workers Club and in September changed this to Model Workers Association. Bylaws for the Association were adopted at a meeting in September. Membership in the Association was solicited by employees in the plant during working hours in the presence of foremen and foreladies. Dues collectors for the Association collected dues in the plant on the weekly pay days. Collections were made during working hours a short interval after pay had been distributed. In some cases the collectors followed literally on the heels of the foremen and fore- ladies as they distributed the pay envelopes. No steps were taken by the respondent to put an end to these practices, although the record clearly establishes that they were too prevalent to have failed to come to his attention. The Union did not request similar advantages from the respondent, but it is obvious that in view of the respondent's stated hostility toward the Union, such a request would have been futile. Moreover, a degree of freedom from discipline was permitted employees active for the Association. These employees were per- mitted to leave their machines and congregate for conversation and to leave the plant to bring in refreshments. These privileges were denied to members of the Union. Regular meetings of the Association were held through August,. September, and October. Although the bylaws of the Association provided for a committee to "cooperate with the Management of the Company in adjusting and deciding questions relating to hours, wages, [and] working conditions," no efforts were made to engage in collective bargaining with the respondent. The Association func- tioned chiefly as a social club and as a forum for anti-union state- ments. During the course of the hearing, which began on No 9, the members of the Association joined the Amalgamated and the. Association was disbanded.19 The facts set forth above establish that the respondent supplied` active assistance and encouragement in the formation, organization,, and functioning of the Association. The keynote of the Association's, aims was sounded by McTague in his speech in March. The em- ployees who organized the Association were the same employees who. had cooperated with the respondent in the circulation of the anti- union petitions in May. Since these employees were effectuating the. 18 The minutes of this meeting are dated August 4, but it is clearly established by- other evidence that the meeting was held on the 8th. J9 The circumstances under which the members of the Association transferred to the. Amalgamated are described below. MODEL BLOUSE CO. 145 stated desires of the respondent that they defeat the Union and start a union themselves, they must have felt assured of the respondent's favor and support in this project. This favor and support was given them. They had complete license to organize and collect dues during working hours. They could leave the plant before the close of work to distribute leaflets. They were permitted a degree of freedom from discipline denied to members of the Union. The full effect of the granting of these special privileges must be evaluated against the background of McTague's tirade against the A. F. of L. and the Union in March. The respondent made clear to his employees that he wished them to leave the Union and form a union themselves. When, thereafter, such an organization came into being, he endowed it with a special status and stamped it with the mark of his approval. In this fashion the Association was enabled to gain and retain its members, and establish and continue its existence. We find that the respondent, by his anti-union statements, by proposing that an unaffiliated labor organization be formed, and by granting special privileges to members of the Association, thereby encouraging and assisting the formation, organization, and opera- tion of the Association, interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. The evidence to support the allegation that the respondent spied upon union meetings consists of testimony that Edward McTague and his brothers, James and William, foremen in the respondent's plant, were in the vicinity of the Union's meeting place on meeting nights. McTague admitted this in his testimony, stating that it was his practice to "hang out" in the evenings with friends near a drug store situated across the street from the union meeting place. He testified, however, that he did not spy or have any intention of spying upon the union meetings. Since McTague's explanation of his pres- ence near the union meetings is a reasonable one, we find the evidence insufficient to sustain the allegation in the complaint that the re- spondent spied upon and kept under surveillance the membership meetings of the Union. We find, also, that the allegation in the complaint that the respond- ent permitted the association to post notices of meetings upon the plant premises is not supported by the evidence. B. The discriminations in regard to hire and tenure of employment The complaint charges the respondent with discrimination in re- gard to the hire and tenure of employment of Doris Scroggy, Florence Connelly, Thelma Kirby, Mamie Pancoast, Lydia Fox, and Mary Kolodchak. These six include three of the four officers of the Union, 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two members of the advisory board, and an especially active member of the Union. All of these cases must be considered against the background of the unfair labor practices of the respondent described above. Doris Scroggy has been employed by the respondent for about 6 years.. She was employed at various tasks until about March 1937, when she became match-up girl at the cutting table at a weekly wage of $11. There is only one match-up girl in the plant and she is charged with the task of matching materials and the performance of odd jobs. Because of the nature of her work, the match-up girl is assured of steady employment throughout the year. Every other job in the plant, with few exceptions, is seasonal and subject to lay- offs during slack periods. Scroggy was very active in gaining members for the Union, and at its first meeting on March 14, 1938, was elected treasurer. About a week after this meeting Scroggy was transferred without any ex- planation from her job as match-up girl to work on an eyelet ma- chine. The wage for this latter work was the same as that for the job of match-up girl. Nevertheless, about 3 days after her transfer to the eyelet machine, Scroggy asked her fore]ady, Bessie Chadwick, to transfer her back to the job of match-up girl. Her forelady in- formed Scroggy that she had been transferred to eyelet work because there was a need for a good girl at that job. Chadwick added that she "would see what she could 'do about" transferring Scroggy back to match-up work. However, Scroggy was not given another oppor- tunity at match-up work. Work on the eyelet machine ceased soon after the transfer and on March 31 Scroggy was laid off. In the meantime, Virginia Sharp, a trimmer in the pajama department, who had been in the employ of the respondent for about 2 years, replaced Scroggy as match-up girl. At the time of the hearing Sharp was still employed at that job. After her lay-off, and prior to the hearing on the representation case in May, Scroggy asked for work on several occasions. Each time she was told she would be sent for when needed. In the early part of July a representative of the Regional Office of the Board called on Edward McTague and discussed the cases of Scroggy and other girls. A few days thereafter, at the suggestion of the Regional Office, Scroggy, together with several other girls, visited McTague and asked for employment. McTague told them that there was no work, but they would be sent for when needed. He added, "Tell the National Labor Relations Board for me that they embarrass me." About a week after this interview, Scroggy was sent for and given work on a single-needle machine, at which she was employed at the time of the hearing. Her average earnings at this work are $7 a week. 1\IODEL BLOUSE CO. 147 The respondent argues in his brief that Scroggy, having been trans- ferred to eyelet work, was subject to lay-offs in the same fashion as any other eyelet girl. He offers no adequate explanation, how- ever, for the transfer of Scroggy from her match-up job to eyelet work. In his brief, the respondent states that Scroggy was trans- ferred to eyelet work, when work as a match-up girl was slack. This contention is contrary to the record. The evidence that the, match-up job is not subject to lay-offs was uncontradicted. Further,. as stated above, Scroggy when transferred was replaced by Virginia, Sharp, who, at the date of the hearing, was still employed at match-up„ work. It was generally known throughout the plant that the A F. of L., was organizing among the employees, and knowledge of this activity- soon came to McTague's attention.20 Tom Pugliese, Lydia Fox's< foreman, spoke to her about the March 14 meeting on the morning, of March 15. Several girls had spoken to McTague about the union, activity, prior to his speech on March 22. Through these sources,- McTague learned of Viola Felmey's union activities. In view of the respondent's stated hostility toward the Union and his active-. efforts to defeat its organizing activity, it is only reasonable to assume- that the respondent would welcome information as to the Union's; members and officers. This knowledge, since it was general through--. out the plant, was readily . available; and must have come to Mc--.- Tague's attention through the medium of the foremen and fore-- ladies, or of the girls who spoke to him about union activity. Ac-' cordingly, we find that the respondent knew of Doris Scroggy's office in and activity on behalf of the Union. Upon the basis of the foregoing, we believe that, on or about: March 1938, Doris Scroggy was transferred from her position as; match-up girl, and thereafter laid off and refused reinstatement to this position, because of her union activities. The explanation for.- the transfer offered by the .respondent in his brief is contrary to the- record and an obvious fabrication. The respondent knew of Scroggy's union activities, and transferred her from the highly de-_ sirable position of match-up girl with assured employment to a job, where work terminated within a week and a. half. Scroggy was. subsequently employed at a position which pays less than that Of' match-up girl, and unlike that job is subject to seasonal lay-offs. She. was refused reinstatement to the position of match-up girl which, -'0 McTague testified as follows : It was general talk, and it was common talk in the factory about the organizer's name, and who he was, and you could hear everybody in the place talking about it all the time. You can hear them all the time now. They talk about it. It isn't a secret around the place. It is very open ... Stories and things.. of that kind circulate around a factory very rapidly, and very outstanding. If I hear it- talked about in the plant , I learn about it." 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the time of Scroggy's transfer from the job, was given to another girl who had not formerly done that work. We find that the respondent, by his transfer and subsequent lay- off of Doris Scroggy and his refusal to reinstate her to her former position of employment, discriminated in regard to her hire and tenure of employment and the terms and conditions of her employ- ment, thereby discouraging membership in the Union, and thereby interfering with, restraining, and coercing his employees in the exer- cise of the rights guaranteed in Section 7 of the Act. Mamie Panwoast has been in the employ of the respondent as a fly-facing girl on pajamas over a period of 10 years, but during that period was away from the plant for long intervals because of illness. In May 1937 she was reemployed to replace Mary Trout, who was ill at the time. Her forelady promised Pancoast that she "would work me.' [Pancoast] in steady when . . . Mary Trout came back." In July, Mary Trout returned and Pancoast was transferred to another machine where she continued to work at fly facing. In the early autumn one of the other girls employed at fly facing left the re- spondent's employment. Pancoast was thereafter considered one of the regular girls on this line of work. Fly facing is piece work and Pancoast's average earnings were about $3 a day. Pancoast was the representative for the fly-facing girls on a com- mittee that saw Edward McTague during the 1-day stoppage on March 7. She was active in the solicitation of members for the Union and was chosen a member of the advisory board on March 28. Whenever work was slow, it was the practice of the respondent, with respect to fly facing as well as other operations, to divide the available work equally among the employees engaged in the same task. The employees would be laid off at the same time and reem- ployed at the same time. If there was insufficient work for a full day's employment on a particular job, the employees on that job would be given an equal number of hours of work per day. On April 5, 1938, Pancoast was laid off, together with the other girls on fly facing. The other girls were called back for a single day on April 6, but Pancoast was not. Pancoast remonstrated With her forelady and was given employment on April 18 and 19, to- gether with the other girls. Thereafter, although" Pancoast fre- quently requested work '21 she received no further employment until the date of the hearing. The other fly-facing girls, however, worked fairly steadily from April 25 through the beginning of November. Pancoast was reemployed at fly facing on November- 16, during the course of the hearing. Her forelady, however, was doubtful that this employment would be steady. 21 Mamie Pancoast was one of the girls who at the suggestion of the Regional Office of the Board, called on McTague in July to'request employment. See supra. MODEL BLOUSE CO. 149 The respondent contends , in his brief, that Pancoast was not a regular girl on fly facing, but was working only on a temporary basis substituting for Mary Trout. The record is clear, however, that Pancoast worked for about 9 months after Trout returned. At the time of her lay-off, Pancoast was clearly one of the steady fly-. facing girls. We believe that Pancoast was refused employment on April 6, and from April 25 to November 16, because of her union activities. The, respondent's explanation for the failure to give her work is contrary to the evidence . Pancoast was a member of a committee that saw McTague during the stoppage on March 7. -In addition , for the same reasons set forth in our discussion of the Scroggy case , we find that the respondent was aware of Pancoast's activity in behalf of the Union. We find that the respondent , by his refusal to give employment to Mamie Pancoast on April 6 , and from April 25 to November 16, dis- criminated in regard to her hire and tenure of employment, thereby discouraging membership in the Union, and thereby interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act. Pancoast earned nothing between April 19 and November 16, when she was reemployed at fly facing. Florence Connelly was elected recording secretary of the Union at its first meeting on March 14 . At about that time several of the re- spondent's foreladies observed Connelly in the company of McGurrin, the A. F. of L. organizer. At the hearing on the representation case in May, Connelly in the course of her testimony described her position in the Union and her activities in soliciting members. Florence Connelly and Anne Breedon.had been hired at about the same time, and for approximately 4 years the two girls worked to- gether as operators on polo collars. The respondent observed, with respect to polo collars , the practice of equalizing employment when work was slack, that we have described above. Pursuant to this prac- tice, Connelly and Breedon had during the 4 years of their employ- ment, been laid off at the same time and called back to work at the same time. On May 13 work on polo collars ceased and both Connelly and Breedon were laid off. Breedon was called back to work on June/9, but Connelly was not. Thereafter, Anna Zoarsky, who had previously done occasional work on polo collars, was given steady employment at this task. In addition,' other girls worked on polo collars when there was too much for Breedon and Zoarsky. Nevertheless, despite Connelly's requests for employment , she was given no work on polo collars after May 13. - 199549-39-vol. 15-11 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . On July 12, at the suggestion of the Regional Office of the Board, Connelly, together with Scroggy and several other girls, called on McTague and asked for employment.22 Shortly thereafter, on July 23, Connelly was given work doing fronts on polo shirts. However, since she was new at the job and consequently worked slowly, she was laid off again after 2 days. Connelly has not worked since that date. We believe that Florence Connelly was refused employment at polo collars on June 9 and thereafter because of her union activities. The respondent argues in his brief that Connelly was refused employment because there was no work. However, the record clearly establishes the contrary. The evidence that the respondent knew of her union activities is clear. She testified to these activities at the hearing in May 1938, and, as set forth above, the respondent had general knowledge of union activities at the plant.28 We find that the respondent, by his refusal to employ Florence Con- nelly on polo collars on June 9 and thereafter, discriminated in regard to her hire and tenure of employment and the terms and conditions of her employment, thereby discouraging membership in the Union, and thereby interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act. Florence Connelly earned about $19 to $20 a week on winter polo' collars and $15 to $16 a week on summer polo collars. Aside from her 2 days' work on fronts on polo shirts, Connelly has not worked since May 13. Mary Kolodchak was active in the solicitation of members for the Union and was elected financial secretary at its first meeting on March 14. She testified at the hearing on the representation case in May, and, in the course of her testimony, described her position in the Union and her activity on behalf of the Union. Kolodchak was employed by the respondent for about 12 years and worked as an operator on shirt labels for that entire period. She was paid on a piece-rate basis and her average earnings were between $15• and $16 a week. On about March 7 work on shirt labels ceased and Kolodchak was transferred to zipper fronts, where her earnings fell to $8 a week.24 The shirt-label department was then permanently dis- continued except for an occasional special order, and Kolodchak con- tinued to work on zipper fronts until the end of May when work on this operation also ceased. Kolodchak had received no work by the end of June. At this time she learned that there was a need for extra girls in the pajama depart- 22 For a description of this incident, see.savpra. 23 See supra. 21 For it short period, Kolodchak received an extra $1 over and above her piece-work earnings, in order to recompense her for her drop in wages. After about 2 weeks, however, this allowance was stopped. MODEL BLOUSE CO. 151 meat. In the past, Kolodchak, had frequently obtained work on pa- jama labels on occasions when work on shirt labels was slack. She therefore approached Elizabeth Saul, the forelady in the pajama de- partment, and asked for employment. Saul replied that she had no work. Kolodchak said that she had heard that the department was rushed, and Saul answered, "I know, but I don't have any [work] for you." Late in July Kolodchak was given work sewing plackets. After 2 days at this job, Kolodchak did not return to work because she had earned only 90 cents a day. Thereafter, she twice requested employ- ment, at the beginning of August and again at the beginning of Sep- tember. She was told by Bessie Chadwick, the forelady in the shirt department, that she would be sent for when there was work on plackets. However, Kolodchak was not called back to work after July. The record establishes. that in the meantime there was considerable work on pajama labels. The daughter of Nellie McAvoy, who had been active in the circulation of the anti-union petition and was later one of the organizers of the Association'25 was hired as a steady girl on pajama labels in July. Miss McAvoy had not worked for the re- spondent before that date. In addition, another employee was called upon to assist on pajama labels when the press.of work was heavy. We believe that Mary Kolodchak was refused employment on pa- jama labels in June and thereafter 28 because of her union activities. The respondent learned of these activities from her testimony at the hearing. In the past, Kolodchak had frequently worked on pajama labels when work on shirt labels was slack. The' record establishes that such employment was available in June and thereafter. More- over, the respondent offers no explanation for his refusal to offer her such employment. The statement made to Kolodchak by Elizabeth Saul at the time of Kolodchak's request for employment, corroborates our conclusion that Kolodchak was discriminated against because of her union activities. We find that the respondent, by his refusal to employ Mary Kolodchak on pajama labels in June 1938 and thereafter, discrimi- nated in regard to her hire and tenure of employment and the terms and conditions of her employment, thereby discouraging membership in the Union, and thereby interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act. At the time of the hearing, Kolodchak was employed caring for an invalid woman and was earning $6 a week and board. Between the 25 See supra. 20 The respondent, in his brief, recites an offer of employment made subsequent to the hearing. However. we cannot take cognizance of facts not testified to in the record. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD last date Kolodchak worked for the respondent and the date of her testimony at the hearing, she earned approximately $40. Th.elvza Kirby has been in the employ of the respondent for over 5 years. For the past 3 years she has worked as an operator on a felling machine.27 Kirby joined the Union at its first meeting on March 14. She was very active in behalf of the Union and gained about 10 members for it, and testified at the hearing on the representation case in May that she was a member of the Union.. She was discharged by Edward McTague on July 27, allegedly because she had done defective work on that 'day. The testimony of the witnesses called by the respondent to ' support his contention as to Kirby's discharge is both confused and contra- dictory. Michael Mitchell, a machinist employed by the respondent. testified that Kirby told him that her machine was not operating correctly; that upon examination of her machine and her work, he discovered that the machine was in perfectly good condition, and that Kirby was doing her work badly; that he then called this to the attention of Kirby's forelady, Ida Murphy. 'At a later point in his testimony, Mitchell stated that it was Mabel Estell, the girl who inspected Kirby's work, who spoke to him about the machine. Both Kirby and Estell denied that they complained to Mitchell about the rilachine. Ida Mur- phy testified that her knowledge of Kirby's bad work came not from the machinist, but from the pressing room. We can give no credence to Mitchell's testimony. Ida Murphy testified that Kirby's bad work was returned from the pressing room as impossible to press because it had been done so poorly; that she then went to Kirby's machine and discovered that Kirby was doing her work badly ; that McTague then came over, and since Kirby's work was so bad "we just let her go." Examples of Kirby's allegedly bad work were introduced into evidence at the hear- ing. Murphy further testified that oile of the garments in evidence was so defective that Estell, Kirby's inspector, could not possibly .properly have permitted the garment to pass. Kirby denied that on' the day of her discharge she had worked on striped cloth, of which the garment in question was made .28 Moreover, Estell testified, that she had not on that day noted.any defect in- Kirby's work serious enough to require reporting to the forelady; that at the time, Murphy showed her a ruined shirt purporting to be Kirby's work, and Estell declared that she, the inspector, could not have seen that example else she would have sent it back. No explanation was offered by the re- 21 Felling consists of sewing seams on the sides of a garment. 29 The denial was by stipulation, I. e., counsel stipulated that if Kirby were called to the stand she would deny that she had worked on striped cloth on the day of her discharge. MODEL BLOUSE CO. 153 sponclent as to how the garment could have come to the pressing room without having been passed by the inspector, or as to why Estell was not even reprimanded for her alleged failure to report the defective work. The forelady asserted that she had not put these specimens aside for the purpose of evidence in a hearing before the Board. How- ever, she had no credible explanation for having kept them .211 McTague testified that he learned from someone in the pressing room that the pressing room had received.a number of garments which could not be pressed because the side seams had been sewed badly; that he then consulted with Murphy and discovered that Kirby was responsible for this bad work; and that since Kirby had done poor and careless work for the past 5 years, he then discharged her. The record clearly establishes that Kirby was an exceptionally good worker. Kirby had been frequently commended for good work by her fore]ady. During the 5 years she was employed by the respondent, she twice left her job because of childbirth. On both occasions she was requested by her forelady to return because of the, superiority of her work. Mc- Tague, himself, on cross-examination, admitted that he considered Kirby to be an "asset to the place." The Trial Examiner found that the testimony of Ida Murphy and Edward McTague with respect to the incident was not entitled to credence. We also so find. Kirby testified that her work on the day of her discharge had not been poor. She testified further that the material that both Murphy and MeTague had found fault with had not been her work; that when she asked then to look at some bundles of work she had just completed, Murphy examined them, and after admitting that they were properly done, added, "We cam-lot afford to have anybody here if we have to watch everyone'"; that McTague was so angry that he did not even look at the bundles. We find that Thelma Kirby's testimony is sub- stantially correct. We believe that Kirby was discharged on July 27 because of her union activities. The record establishes that Kirby's work was not defective on that date. ° Moreover, Murphy's angry disregard of the good work that Kirby showed to Murphy, and McTague'§ refusal, to examine this work establish that McTague and Murphy were either aware that Kirby's work was not defective, or not concerned in ascer- taining whether or not her work had been done properly. Further, even if Kirby had done defective, work on that date, it is clear that zo Ida Murphy gave the following explanation for having the spoiled garments available for introduction into evidence : "Well, the striped one is really a good one compared to the ones I sent downstairs again , because there was nothing I could do about it. I kept that so if I needed it to show to anyone else , just a sort of an example of what could happen when it is not done just right. This one I didn't know bow to fix, so I laid that aside and forgot about it." 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that could riot have been the motive for her discharge. Kirby was the only girl Murphy could recall ever having been discharged for im- perfect work, although other girls had been guilty of such work. The respondent knew of Kirby's union activities because of her testimony at the hearing in May 1938, and for. the reasons set forth in our discus- sion of the Scroggy case. Kirby requested her job back from McTague early in September, and late in September was called back to work. However, on her re- turn she was placed at a machine, different in type from the one at which she had been working at the time' of her discharge. At this latter machine, Kirby earned an average of $3.50 a day, whereas at her former machine, her earnings had averaged $4 a day. In addition, her employment at this machine was not as steady. We find that the respondent, by his discharge of Thelma Kirby on July 27, and his subsequent refusal to reinstate her to her former machine, discriminated in regard to her hire and tenure of employ- ment and the terms and conditions of her employment, thereby dis- couraging ' membership in the Union, and thereby interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act. For the 2 months that.Kirby was not employed by the respondent, she worked in a coat factory where she earned approximately $40. Lydia Fox was employed as a presser by the respondent for approximately 7 years. She joined the ' Union, on about March 28, and became a member of the advisory. board sometime in April. She testified to her union membership in the hearing on the repre- sentation case in May. On November 5 and 0, she testified at the hearing on the complaint case herein,' describing the. incident in which James McTague gave Nellie McAvoy an 'anti-union petition to be circulated in the pressing room. Fox also testified to other activities by Nellie McAvoy on behalf of the Association.3° On the morning of November 8, Fox became involved in a quarrel with Etheline Mingin, another employee in the pressing room. Soon after the quarrel had subsided Fox's forelady told her that Edward McTague wished to see her. In the presence of Mingin, McTague asked Fox why she had "abused" Mingin. Fox denied cursing Min- gin, but Mingin stated that Fox had done so. Thereupon, without inquiring further as to the truth of the matter, and without con- sulting either the foreman or the forelady, McTague told Fox that she was discharged and instructed her to "go up and get my [her] paY" Fox testified that while waiting for her pay, she turned to Mc- Tague and accused him of. discharging her for union activities; that 30 See supra. MODEL BLOUSE CO. 155 McTague replied that he "wanted to get even" because of Fox's testimony about Nellie McAvoy, and then added, "Go to the Board with big-mouth Casey-you and the Board and big-mouth Casey." Casey was an organizer for the A. F. of L. McTague testified that -he discharged Fox because she had been a constant source of trouble. , He stated, '517e used to discount a lot of things, or allow for things that she did, but, since she got mixed up with the A. F. of L., she has taken it upon herself to almost rule the whole place there, and tell foremen and foreladies what they can do and what they can't do and she stays out when she pleases." However, Fox's foreman testified that he had never reported Fox to McTague, an l McTague admitted that he discharged Fox without consulting her foreman or forelady. For these reasons we cannot credit McTague's explanation for the discharge. McTague denied that he told Fox he was discharging her because of her testimony at the hearing.' However, in view of the generally unsatisfactory nature of McTague's testimony 31 we cannot credit this testimony.32 We credit Fox's testimony concerning McTague's statement while she was waiting for her pay, and we find, as did the Trial Examiner, that Fox was discharged on November 8 because of her union activi- ties and her testimony on November 5 and 6. We find that the respondent, by his discharge of Lydia Fox on November 8, discriminated in regard to her hire and tenure of em- ployment and the terms and conditions of her employment, thereby discouraging membership in the Union, and thereby interfering with, restraining, and coercing his employees in the exercise of the rights ,guaranteed in Section 7 of the Act. We further find that the respondent discharged Lydia Fox on November 8 because she gave testimony under the Act, thereby inter- fering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section7 of the Act. The complaint alleges that Doris Scroggy, Florence Connelly, Thelma Kirby, Mamie Pancoast., and Mary Kolodchak were dis- criminated against because of their testimony in the hearing on the representation case in May. Although, as found above, the record establishes that all of these employees were discriminated against in regard to their hire and tenure of employment because of their union activities, the record does not establish a casual connection be- tween such discrimination and their testimony at the hearing in May. Accordingly, we find that the respondent did not discriminate 31 See discussion , supra, and footnote 13, supra. ffi Mavis Riley, who worked 'in the respondent's of5ice. overheard part of this conversation. She testified that she did not hear 1VIcTague tell Fox he was discharging her because of Fox's testimony . However , on cross-examination , Riley admitted that she (lid not hear all of the conversation between Fox and McTague. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against Doris Scroggy, Florence Connelly, Thelma Kirby, Mamie Pancoast, and Mary Kolodchak, because they gave testimony under the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order him to cease and desist therefrom, and to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that the respondent has discriminated in regard to the hire and tenure of employment and the terms and conditions of employment of Doris Scroggy, Florence Connelly, Thelma Kirby, .Mamie Pancoast, Lydia Fox, and Mary Kolodchak. Although Doris Scroggy, Thelma Kirby, and Mamie Pancoast are at present in the employ of the respondent, none of them is working at her former position . Doris Scroggy has not been returned to her former posi- tion as match-up girl, Thelma Kirby has been, placed at a different type of felling machine and neither she nor Mamie Pancoast has been restored to a regular status at their respective jobs. We shall, therefore, order the respondent to offer to all six of these employees .immediate and full reinstatement to their former positions, or if these are not available, to substantially equivalent positions. By former positions, we refer to the positions held by. these employees at the time of the discrimination . Thus, we will order Doris Scroggy to be restored to her position as match-up girl, Florence Connelly and Mamie Pancoast to a regular status as a steady girl on polo collars and fly facing respectively , Thelma Kirby to the fell- ing machine at which she was working on July 27, and Lydia Fox to her job in the pressing room. Since we have found that the shirt label department has been permanently discontinued , and that the respondent discriminated with regard to Mary Kolodchak by his refusal to offer her employment on pajama labels , we will order the respondent to offer Mary Kolodchak employment on pajama labels. Where necessary , we shall require the respondent to displace em- ployees who have succeeded to the former position of any of the MODEL BLOUSE CO. 157 above-named employees, or who have succeeded to positions which either because of seniority or the practice of the, plant should have been offered to any one of the above-named employees. We shall also order the respondent to make' each of the above-named employees whole for any loss of pay she may have suffered b f reason of such discrimination, by payment to each of them of a shun of money equal to the amount which she normally would have earned as wages from the date of the discrimination to the date of the offer of reinstatement, less her net earnings 33 during said period. We shall also order the respondent to take certain other action more particularly set forth in the order. Where we have found that the respondent has not engaged, in unfair labor practices in accordance with the allegations in the complaint, we will order the complaint dismissed in so far as it alleges such unfair labor practices. VI. THE QUESTION CONCERNING REPRESENTATION In our previous Decision issued.on July 30, 1938,39 we found that the respondent had failed to reply to a letter from the Union request- ing a meeting and had questioned the Union's majority, and that, therefore, a question had arisen concerning the representation of the employees of the respondent. The Union still claims to represent a majority of the respondent's employees at' the Millville plant.- As we have stated above, the, Amalgamated thereafter filed a peti- tion for intervention on November. 2, 1938. At the date of the filing of the petition, the Amalgamated had no members among the re- spondent's employees , at Millville. However, during the course of the hearing in November, the Amalgamated, with the active assist- ance of the officers of the Association, conducted an organizing cam- paign among the respondent's employees. At a series of meetings held under the auspices, of the Association,. the Amalgamated en- rolled as members. most of the members of the Association as well as a number of employees who were not members of the Association. Upon the basis of the members gained in this campaign the Amal- By "net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else-, where than for the respondent, which would not have been incurred but for the discrimi- nation by the respondent ' and the consequent necessity of seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590 , 8'N. L. R. B. 440. Monies received for work performed upon Federal. State, county, municipal, or other work-relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects. 84 8 N. L. R. B. 725. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gamated also claims to represent a majority of the employees of the respondent at the Millville plant.-s We find that a question has arisen concerning the representation of employees of the respondent. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VIII. THE APPROPRIATE UNIT In our previous Decision ie we found that the production employees of the respondent at the Millville plant constituted an appropriate unit. The Union so contended in the hearing on the representation case in May and pressed the same contention at the hearing in No- vember. The Amalgamated contends that the production employees of the respondent at the Millville, Troy, and New York City plants constitute a single appropriate unit. The Amalgamated suggests as an alternative that the production employees at all five of the re- spondent's plants, consisting of these three and two other plants at Wheat Road and Landisville, New Jersey, may be found to con- stitute an appropriate unit. In the event that neither of the fore-. going alternatives is found to be an appropriate unit, the An-lal- gamated asks to be certified as the representative of the employees of the Millville plant alone. The New York City plant is engaged only in the cutting and pressing of garments. The garments, after being cut at the New York City plant, are shipped to be sewed to one of the four other plants, or to a plant at Ephrata, Pennsylvania, which is not owned by the respondent. Most of the garments cut at the New York-City plant are shipped to the Landisville and Wheat Road plants. These latter plants have no cutting and pressing departments of their own, and after sewing the garments ship them to one of the other plants to be pressed, but chiefly to New York. In addition, there is a certain amount of interchange of machinery among the plants. The Troy and Millville plants are engaged in the complete operations w The Amalgamated also claims that other employees of the respondent together with the employees of the Millville plant constitute a single appropriate unit. See Section VIII , infra. 80 8 N. L . R. B. '125. MODEL BLOUSE CO. 159 of cutting, sewing, pressing, and finishing garments, but manufac- ture different styles and kinds of garments. The central office for all five plants is situated in New York City._ Practically all the raw materials for the different plants are pur- chased at the New York City office, and all sales of merchandise are made there. Wage levels and working conditions for all five plants are also set at the New York City office. Edward McTague, in addi- tion to his duties as general manager of the Millville plant, also has supervision over the other plants,of the respondent. He purchases machinery for all the plants and makes up the patterns and styles. He visits the Landisville and Wheat Road plants every day, the New York City plant weekly, and the Troy plant about once a month. For the past 4 years, the Amalgamated and the respondent have entered into written closed-shop contracts covering the employees at the Troy plant. In addition, there is an oral closed-shop agreement between the Amalgamated ' and the respondent covering the. em- ployees at the New York City plant. There is lio union organiza- tion at all at the Wheat Road and Landisville plants, and, as stated above, the present membership of the Amalgamated at Millville dates from the beginning of the hearing in November.37 Although, in previous cases, we have held the employees of a num- ber of plants of one employer to constitute an appropriate unit,38 there is lacking, in the instant case, the history of collective bargain- ing upon which such decisions have rested.39 Even though the Amal- gamated has had a closed-shop agreement for both the Troy and New York City plants of the respondent, it has never attempted to bar- gain for the employees of these plants as one unit, but has at all times treated, the employees of each of these plants as a separate bargaining unit. And as stated above, prior to the date of.the hear- ing in November, the Amalgamated had no membership in any of the other three plants 'and had never bargained or attempted to bargain for the employees of these plants. Moreover, the. Amalgamated snakes no showing that bargaining would be facilitated by the inclusion of the employees of the sepa- rate plants in one unit. Where the Amalgamated has had the op- portunity of bargaining for the employees of more than one plant of the respondent as a unit, it has not found it desirable or necessary 84 The Amalgamated had enlisted a number of members among the Millville employees, in July 1935. but lost them all soon thereafter. 98 Matter of Pittsburgh. Plate Glass Company and Federation of Flat Glass Workers of America, affiliated with` C. I. 0., 10 N. L. It. B. 1111; and Matter of Libbey-Owen.s-Ford Glass Company and Federation of Flat Glass Workers of America , 1.0 N. L. It. B. 1470. 99 See Matter of Chase Brass Copper Company , Inc. and Waterbury Brass Workers Union. 4 N. L. R. B. 47. See list of cases assembled in footnote 10 of Pittsburgh Plate Glass Company, supra, footnote 38. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ° ,to do so. Andrew Hoppes, the, employee at Millville most active in the organization of the Amalgamated, could see no need for a single unit that' would comprise employees other than those of the Mill- ville plant. Similarly, a representative of the Amalgamated local at Troy testified that the employees' of the Troy plant had not ex- perienced any need for the inclusion of employees of other plants of the respondent in a unit together with themselves. A representa- tive of the' New York local testified to the same effect. For these reasons, we are of . the opinion that the production ,employees' of the Millville plant constitute the appropriate unit. In our previous Decision,40 we found that all the production em- ployees of the respondent at the Millville plant, excluding foremen, foreladies, and other supervisory employees, janitors, packers, truck drivers, mechanics, and office help, and including inspectors consti- tuted the appropriate unit. TheAmalganiated now asks that packers be included in the unit, while the Union requests that the Board reaffirm its previous finding. That finding, however, was based upon a record' which showed packers to be employed in the ship- ping department of the plant. In the record now before us, it was agreed' that the function of packers is to sort out and bundle gar- ments which are then, carried from the sewing room to the pressing room. They are therefore engaged in the' performance of an inter- mediate step in the manufacture of garments. 'Accordingly, we find that the appropriate unit includes packers. 'We find, however; that employees in the shipping department are not included within the appropriate unit. ' We find that all production employees of the respondent at his plant in Millville, New Jersey, excluding foremen, foreladies, and other supervisory employees, janitors, truck drivers, mechanics, office help, and employees in the shipping department, and including in- spectors and packers, constitute a unit appropriate for the purposes of collective bargaining and that such unit will insure to these em-, ployees of the respondent the full benefit of their right to self- organization and to collective bargaining and otherwise effectuate the policies of the Act. IX. THE DETERMINATION OF REPRESENTATIVES In our previous Decision '41 we found that although the Union had been designated as their bargaining agency by a majority of the employees in the appropriate unit, the introduction into evidence of a petition stating hostility to the Union and signed by many of the employees who had, designated the Union, cast doubt upon the E0 8 N. L. R. B. 725. 41 See footnote 40. MODEL BLOUSE CO. 161 majority status of. the Union. We found, therefore, that the ques- tion concerning representation could. best be resolved by the. holding of an election by secret ballot. The present record establishes the complicity of the respondent in the circulation of the petition.42 On. the other 'hand, the Amal- gamated claims that it has also been. designated as bargaining repre- sentative by. a majority of the employees in the appropriate unit and asks for .certification.,' Under these circumstances, and in accord- ance with the recent policy ' we have' enunciated that "bargaining relations will be • more satisfactory.. . . if the doubt and dis- agreement of the parties regarding the wishes of the employees is as far as possible eliminated," we find that the question which has arisen concerning representation can best be resolved by the holding of an election .by secret ballot upon which the names of the Union and the Amalgamated will appear.44 Since the respondent has by engaging in various unfair labor practices interfered with the exercise by' his employees of the rights guaranteed them by the Act; we shall not now set the date for the election but shall order that it be conducted at such time as we shall hereafter direct. Concurrently, with our determination of the date for the election, we shall specify the date on the basis of which eligibility to vote in the election shall be determined.45 Upon the basis of.the above, findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Federal Labor Union 'No. 21560 and Amalgamated Clothing Workers of America are labor.-organizations, and Model Workers Association was a labor organization within the meaning of Section 2 (5) of the Act. 2. By the making of antiunion statements; by threat of discharge for activity on behalf of' Federal Labor Union No. 21560, by warn- ing his employees not to join, assist, or remain members of Federal Labor Union No. '21560, and persuading them not to assist or remain members of Federal Labor Union No. 21560, the respondent has en- 42 See supra. 43 While the circumstances of the inception and conduct of the Amalgamated organiza- tional drive suggest that the Amalgamated may have been assisted by the respondent's unfair labor practices, we have not .deemed it necessary in the present proceedings to make any findings with respect to such evidence. 44 Matter of The Cudahy Packing Compuiin,) and United Packinghouse Workers of Ainer- tea, Local No. 21, of the' Packinghouse Workers Organizing Committee . affiliated with the Congress of Industrial Organizations, 13 N. L. R . B. 526. Matter of Armour & Com- pany and United Packinghouse Workers, Local Industrial Union No . Is of Packinghouse Workers Organizing Committee, Affiliated with C. 1. 0., 13 N. L. R. B. 567. 45 Matter of Panther-Panto Rubber Co., Inc. and United Rubber Workers of America, Local No. 156,'11 N. L. R. B. 1261. ' 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaged in and is engaging in unfair labor practices within- the mean- ing of Section 8 (1) of the Act. 3. By sponsoring and assisting in the circulation of an anti-union petition, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. By his anti-union statements, by proposing that an unaffiliated labor organization be formed, and by granting special privileges to .members of Model Workers Association, thereby encouraging and assisting the formation, organization, and operation of Model Work- ers Association, the respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8 (1) of the Act. 5. By discriminating in regard to the hire and tenure of employ- ment and the terms and conditions of employment of Doris Scroggy, Florence Connelly, Thelma Kirby, Mamie Pancoast, Lydia Fox, and Mary Kolodchak, thereby discouraging membership in Federal Labor Union No. 21560, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 6. By discharging and discriminating against Lydia Fox because she gave testimony under the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (4) of the Act. 7. By interfering with, restraining, and coercing his employees in the exercise of the-rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 8. The unfair labor practices enumerated above are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. 9. The respondent has not, by spying upon and keeping under surveillance membership meetings of Federal Labor Union No. 21560, engaged in, unfair labor practices within the meaning of Section 8 (1) of the Act. 10. The respondent has not, by permitting the Association to post notices of meetings on plant premises, engaged in unfair labor prac- tices within the meaning of Section 8 (1) of the Act. 11. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (4) of the'Act with respect to Doris Scroggy, Florence Connelly, Thelma Kirby, Mamie Pancoast, and Mary Kolodchak. 12. A question affecting commerce has arisen concerning the rep- resentation of employees of the respondent at his Millville, New Jersey, plant within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 13. All production employees of the ' respondent at his plant in Millville, New Jersey, excluding foremen, foreladies, and other super- MODEL BLOUSE CO. 163 visory employees, janitors, truck drivers, mechanics, office help, and employees in the shipping department, and including inspectors and packers, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Model Blouse Co., Elias Savada, individually and doing business under the firm name and style of Model Blouse Co., also doing business under the firm name and style of Savada Brothers, and his officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Making anti-union statements, threatening, warning, or per- suading his employees not to join or assist Federal Labor Union No. 21560, or any other labor organization, or sponsoring or assisting in the circulation of a petition directed against Federal Labor Union No. 21560,o r any other labor organization; (b) Proposing tliat an unaffiliated labor organization be formed, granting special privileges to members of Model Workers Associa- tion, or any other labor organization, or in any other manner, en- couraging and assisting; the formation, organization, or operation of Model Workers Association, or any other labor organization; (c) Discouraging membership in Federal Labor Union No. 21560 or any other labor organization of his employees, by transferring, demoting, discharging, or refusing to reinstate or offer employment to any of his employees, or in any other manner discriminating in regard to their hire and tenure of employment or any term or con- dition of their employment, or by threats of such discrimination; (d) Discharging or otherwise discriminating against any em- ployee because he or she has given testimony under the Act; (e) In any other manner interfering with, restraining, or coercing his employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to. engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Doris Scroggy, Florence Connelly, Thelma Kirby, Mamie Pancoast, Lydia Fox, and Mary Kolodchak immediate and full reinstatement to their former positions in accordance with the section "Remedy" above, or, if these are not available, to substan- 164 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD tially equivalent positions without prejudice to their seniority or other. rights .and privileges, and where necessary, displace any em- ployee who may have succeeded to 'the former position of any of these above-named employees, or to any other position, which be- cause of seniority or the practice of the plant should have been offered to any of the above-named employees; (b) Make whole Doris Scroggy, Florence Connelly, Thelma Kirby, Mamie Pancoast, Lydia Fox, and Mary Kolodchak, for any loss of pay they may, have suffered by reason of the respondent's dis- crimination in regard to the hire and tenure of their employment and the terms and conditions of their employment by payment to each of them of a sum of money equal to that which she normally would have earned as wages during the period from the date of such discrimination to the date of the offer of reinstatement, less her net earnings during such period, deducting however, from the amount otherwise due to each of the said employees, monies received by said employees during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government' or govern- ments which supplied the funds for said work-relief projects; (c) Immediately post and keep posted for a period of at least sixty (60) consecutive days from the date of posting, in conspicuous places throughout his Millville, New Jersey, plant, notices to his employees stating : (1) that the respondent will cease and desist in the manner set forth in 1 (a), (b), (c), (d), and (e) of this Order, and (2) that the respondent will take the affirmative action set forth in 2 (a ) and (b) of this Order, and will not discriminate against any employees if they join or assist Federal Labor Union No. 21560 or any other labor organization of their own choosing; (d) Notify the Regional Director for the Fourth . Region in writing within ten (10) days from the date of. this Order what steps the respondent has taken, to comply therewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in- so far as it alleges that the respondent, (1) by spying upon and keeping under surveillance membership meetings of Fed- eral Labor Union No., 21560, and by permitting the Association. to post notices of meetings on plant premises, has engaged in unfair labor practices within the meaning of. Section 8 (1) of the Act; and (2) has engaged in unfair labor practices within the meaning of Section 8 (4) of,the Act with respect to Doris Scroggy, Florence Connelly, Thelma Kirby, Mamie Pancoast, and Mary Kolodchak. MODEL BLOUSE CO. SECOND DIRECTION OF ELECTION 165 By virtue of, and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations=Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Model Blouse Co., Elias Savada, individually and doing business under the firm name and style of Model Blouse Co., also doing business under the firm name and style of Savada Brothers, an election by secret ballot shall be conducted at such time 'is the Board shall here- after direct, under the direction and supervision of the Regional Di- rector for the Fourth Region, acting'in this matter ,-s agent for the Board and subject to Article III, Section 9, of said Rules and Regula- tions, among all production employees employed by the respondent' at his Millville, New Jersey, plant,' during "i period or at a time which we shall-in the future specify, excluding foremen and foreladies, and other supervisory employees, janitors, truck drivers, mechanics, office help, and employees in the shipping department, and including inspectors and packers, to determine whether they desire to be represented by Federal Labor Union No. 21560, or by Amalgamated Clothing Workers of America for the purposes of collective bargaining, or by neither. MR. WILLIAM M. LEIsERBON took no part in the consideration of the. above Decision, Order, and Second Direction of Election. 199549-39-vol. 15-12