New York Handkerchief Manufacturing Co.

In the Matter of NEW YORK HANDKERCHIEF MANUFACTURING Co. and INTERNATIONAL LADIES GARMENT WORKERS UNION LOCAL No. 76 Case No..C-941.Decided October 26, 1939 Handkerchief Manufacturing Industry-Interference, Restraint, and Coercion: anti-union statements ; inquiries as to the union preferences of employees ; cam- paign designed to keep employees from voting in an election directed by the Board under belief that if less than a majority of the employees voted in the election, Board would be powerless to certify the Union-Collective Bargaining: refusal to bargain following certification of the Union by the Board admitted by the respondent ; contention that refusal was justified inasmuch as less than a majority of the employees had participated in the election upon which certifica- tion was based, held to be without merit particularly since insubstantial par- ticipation in election was attributable to respondent's unfair labor practices ; respondent ordered, upon request, to bargain with Union Discrimination: as to tenure and terms of employment ; discharge for union membership and activity and for activity on behalf of committee held to be a labor organization ; charges of, sustained as to 11 employees, dismissed as to 14-Reinstatement Ordered: employees discharged and laid off for union membership and activity and activity on behalf of committee held to be a labor organization-Back Pay: computation of : Act does not require Board to consider the efforts of an employee to secure other employment in ; awarded employees discharged or discriminated against because of union membership and activity or activity on behalf of committee held to be a labor organization ; granted to employee who obtained position with Works Progress Administration following lay-off at higher monthly salary, only up to time he received this position since he had testified that he did not want his job back with the respondent at the same salary; granted to employee who testified she did not desire to return to respondent's employ from date of lay-off to date of hearing; monies received by employees for work performed upon Federal, State, county, municipal, or other work-relief projects to be deducted and paid over to agency which supplied funds for said projects-Complaint : dismissed as to 14 employees found not to have been discriminated against. Mr. Stephen M. Reynolds, for the Board. Mr. Charles L. Cohns, of. Chicago, Ill., for the respondent. Mr. Harold W. Schwartz, of Chicago, Ill., for the Union. Mr. Theodore W. Kheel, of counsel to the Board. 16 N. L. R. B., No. 55. 532 NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 533 DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Ladies Garment Workers Union on behalf of Local No. 76,1 herein called the Union, the National Labor Relations Board, herein called the Board, by the Acting Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint, dated June 24, 1938, against New York Handkerchief Manufacturing Company,2 Chicago, Illinois, herein called the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and a notice of hearing were duly served upon the respondent and the Union. The complaint, as amended, alleged, in substance that although the Union had been certified by the Board as the representative of a majority of the employees in an appropriate unit for the purposes of collective bargaining, the respondent had refused to bargain collec- tively with the Union ; that the respondent had discharged and re- fused to reinstate 12. named employees because they had joined and assisted the Union; that the respondent had caused 13 named em- ployees to work a fewer number of days than other employees doing similar work because they had joined and assisted the Union; and that the respondent, by the above acts and by other acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent, by its answer and amendment to the answer, filed on June 29 and July 6, 1938, respectively, admitted certain allegations as to its business, but denied that it had engaged in or was engaging in the alleged unfair labor practices. Pursuant to notice, a hearing was held in Chicago, Illinois, from June 30 through July 8, 1938, before Herbert Wenzel, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. On the day preceding the hearing, counsel for the re- 'At the commencement of the hearing, the title was amended to include the words Local No. 76. 2 Incorrectly designated in the pleadings as New York Handkerchief Manufacturing Co. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent filed a motion for a continuance with the Regional Director and renewed this motion at the commencement of the hearing. The Trial Examiner denied these motions. On the second day of the hearing, counsel for the Board moved to add the names of Madge Bramblett and Anna Walker to the complaint as employees allegedly discriminated against. In granting this motion, the Trial Examiner ruled that the respondent should receive the requisite 5 days in which to prepare its defense as to these two employees.3 During the hear- ing, the Trial Examiner made various rulings on other motions and objections to the admission of evidence. The Board has reviewed all the rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On September 15, 1938, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all the parties, in which he found that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act, and recommended that the re- spondent cease and desist from its unfair labor practices, offer to reinstate 13 named employees alleged in the complaint to have been discriminated against, refrain from further discriminating against 5 named employees in regard to the number of hours and days of employment, as alleged in the complaint, and make whole all said employees for any losses of pay suffered by reason of the discrimina- tion. On September 29, 1938, the respondent filed exceptions to the rulings and findings of the Trial Examiner. Pursuant to notice, a hearing was held before the Board on June 15, 1939, in Washington, D. C., for the purpose of oral argument. Only the respondent ap- peared and was represented by counsel. The respondent requested and was given until June 23, 1939, to file a brief. This privilege was also granted to the Union and both parties availed themselves of this privilege. The Board has considered the briefs filed by the parties and the exceptions of the respondent. Except as they are consistent with the findings of fact and conclusions of law made below, we find the exceptions to the Intermediate Report to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS .OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is an Illinois corporation engaged in the manu- facture and sale of handkerchiefs. Its offices and only plant are Counsel for Board withheld the introduction of any testimony in behalf of these employees until the requisite 5 days had elapsed. NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 535 located in Chicago, Illinois. Plain white handkerchiefs, which retail at from two for 5 cents to three for 10 cents, are its principal prod- ucts. It also makes bandannas, color-woven border, satin stripe, print, and some linen handkerchiefs. The respondent's annual volume of sales is approximately $1,000,000.00. Seventy-five per cent of this amount is received from the sale of merchandise shipped to places outside the State of Illinois. All of its raw materials, con- sisting of cotton piece goods and thread, are shipped to the respond- ent's plant from places outside the State of Illinois. Approximately $800,000.00 annually is expended for raw materials. The respondent engages between 250 and 350 employees depending upon the seasonal fluctuations of its business. II. THE ORGANIZATION INVOLVED International Ladies Garment Workers Union,, Local No. 76, is, a labor organization admitting to its membership all production and maintenance employees of the respondent, excluding office workers and supervisory employees. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The respondent's employees consist mainly of colored women. The Union began to organize them in September 1937. On November 16, 1937, the Union wrote to the respondent to arrange for negotiations. The respondent declined and on November 24, 1937, the Union filed with the Board a petition for an investigation and certification of representatives. One morning, about 10 days after the petition had been filed, Jack Meiselman, the respondent's secretary, called a meeting of the em- ployees and addressed them for the ensuing 30 minutes. Approxi- mately 300 employees were present. This was the first general meeting of employees in many years and they were paid for the time it consumed. Meiselman testified that he called this meeting to find out "if the girls wanted a company union, an outside union, or if they wanted to be left alone." He had received a letter "from the National Labor Board . . requesting an interview" and he wanted this information "so as to know how to operate." Concerning the extent of his efforts to accomplish the alleged purpose for which he called the meeting, Meiselman gave the follow- ing testimony on direct examination : Q. All right. Will you tell us as near as you can recall what you said that morning? A. (MEISELMAN.) I said, Girls, you are all over twenty-one I believe and you ought to know what you want to do. It is not 247333-40-vol. 16-35 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD my purpose at all to tell you what you should do, but I have brought you up here to explain a few things, also to find out whether you girls wanted your own bunch together or whether you wanted an outside bunch, or whether you wanted to be left alone. Q. Did anybody answer that question? A. Not at that time. Q. At any time during the talk did anybody answer that question? A. I remember that, yes. I said, now, what do you girls want? Nothing was said, therefore, I took it to mean that they were satisfied. According to his testimony he did not ask any other questions designed to secure from the girls an admission of preference for or against union organization. In this, respect, his testimony stands in marked contrast to the testimony of Ruth Harris and other employees who heard the speech. She attributed the following to him : "All the girls that are for me raise your hand." Only some of the girls raised their hands. "All those that are not for me raise your hands." No hands were raised. "See, they are rats, I know there are girls here that belong to the Union, several of them of course, I could spit on them." From an inquiry into the union preferences of the respondent's employees, the speech veered into a discussion of wages and hours. Meiselman began this portion of his speech by tracing the history of the respondent and his connections with it. He explained that he worked long hours and had started from a lowly position. He indicated certain girls who were earning "good salaries." "I cited instances in practically every department where the girl who worked made anywheres from $12.00 to $20.00 a week, and then I said the girls who don't make that it is their own fault." He concluded by saying, "Now, let's all get back to work together, let's watch our work and we will have a better 1938. I will do my share and you do your share." In addition, witnesses for the Board testified that Meiselman made many other anti-union remarks during the course of his speech. They testified that he denounced the Union, suggesting that it was only interested in dues, and that the organizers for the Union would not walk down the street with colored girls. He inquired, "Are you going to let outsiders come in and break up our happy home?" He advised employees to come to him if they wanted any informa- tion about the Union. He added, "This is my business and there is no one going to run it for me" but if the girls would "stick" with him, he would make 1938 a better year. NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 537 From all the testimony we are satisfied that in addition to the remarks Meiselman admitted, he also made the statements attributed to him above. Our finding is supported by further acts of hostility which Meiselman later displayed toward the Union together with further testimony which unmistakably reveals Meiselman's unre- liability as a witness. Meiselman maintained that he had not made any independent attempts, aside from his speech, to discover the union preference of the employees. But he admitted that "sometimes" he asked em- ployees if they were members of the Union. He recalled, distinctly, that he had questioned Fanny Echols about her membership in the Union. When Echols admitted membership, he merely said to her, according to his testimony, "You know what you are doing." Echols gave a different version. She testified that she was asked by her forelady if she was a member of the Union. She replied that it was none of the forelady's business. Shortly thereafter, Meiselman came to her and said, "Fanny, they tell me they have your name down there as a member of the Union. Do you think I would pay you union wages? If I have to pay union wages, I will hire all white girls. That is why I kept you, you damn fool." Later, Meiselman told her, "You wait until you start to pay dues and you will see, what will happen." Other witnesses testified to similar conversations with Meiselman occurring at times from the inception of the Union to the date of hearing. These conversations included vigorous anti-union state- ments as well as inquiries into the union affiliation of the employees. We find that Meiselman made these anti-union statements and ques- tioned employees about their membership in the Union. In arriving at this conclusion, we have taken into account his admission that he questioned Echols specifically and other employees "sometimes" about their union membership, his aversion for the Union, and his unreliable testimony in other respects. We have mentioned above that the Union filed a petition for an investigation and certification of representatives. After a hearing on this petition, in which the Union and the respondent participated, the Board issued a Direction of Election.4 This election was held on March 24, 1938. Two days before the election, the respondent filed with the United States Circuit Court of Appeals for the Seventh Circuit a petition seeking to review the Board's Direction of Elec- tion and requesting, pending a determination of the petition for review, a restraining order enjoining the Board from proceeding 4 Matter of New York Handkerchief Company and International Ladies Garment Workers Union, Local No. 76, 5 N. L. R. B. 703. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the election . The Circuit Court denied the request for injunc- tive relief, pendente lite, on March 23, 1938.5 Although approximately 225 employees were eligible to vote in the election, only 59 participated . The complaint charged that dur- ing,, the election, the "respondent did exercise surveillance over the polling place of said election, did threaten its employees with the loss of their jobs in the event that they exercised their right to vote in said election, did urge and warn its employees not to vote in said election, and by other acts did discourage employees from voting in said election and did interfere with the conduct of said election by the agents of the Board." As the employees emerged from work on March 23 , 1938, the evening preceding 'the election, Mary Redmond, an organizer for the Union, gave them sample ballots and advised them to vote for the Union. Bessie Rollins, an employee, testified that the next morn- ing, Meiselman asked her to tell him what Redmond had said to her. Rollins explained that she had been given a sample ballot and told to vote for the Union . Meiselman then said , "Don't vote. You don't have to vote. If I can keep 100 girls from going down there and voting, there won't be anything to it and they will leave us alone and won't bother us any more." Meiselman did not specifi- cally deny this testimony . For reasons which appear below, we find that Meiselman made this statement. A petition was circulated among the respondent's employees on the morning of the election . This petition stated,' in substance, that "the girls were satisfied with wages and conditions and begged that the officers and officials would do something to protect them from 'outside interference." Ernestine Walker, an employee, claimed coauthorship of the petition with another employee. The petition was circulated with the express approval of several foreladies 7 and the acquiescence of others. Meiselman was present during the entire time that the petition was in evidence around the plant. At one point, he stopped the girls who were carrying the petition, read it, and then permitted them to continue . For the most'part, the petition was circulated by a committee of four girls. Only one, of these girls secured permission to take the petition around. The others accompanied her in violation of a company 'rule which 'prohibited employees from leaving their places without permission. Although this committee spent about an hour in cir- . 6 The petition for review was dismissed as "premature" on May 27 , 1938, pursuant to stipulation between the parties. 6 This account of the contents of the petition is taken from Meiselman's testimony. It compares , substantially, with the testimony of witnesses who signed the petition. The petition was delivered to Meiselman but the respondent did not introduce it into evidence. 7 Sometimes referred to as eoorladies. NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 539 culating the petition, no steps were taken to stop the girls who had not obtained permission or to reprimand them for violating the company rule. Two foreladies testified that they had taken no action against these girls because Meiselman was present while the petition was circulated. Six girls, employed as pressers, testified that the petition had been presented to them for signature by Bessie Marshall, the forelady in charge of the pressers. Although this was denied by Marshall, we credit the testimony of these witnesses. We are impressed by the corroborative character of their testimony as well as the fact that the respondent acquiesced in the circulation of the petition. Several employees who were hesitant about signing the petition gathered in the washroom for discussion. While they were consider- ing the proper course to pursue, Thelma Lewis, an employee who, we find below, acted for the respondent in discouraging employees from voting in the election, entered the washroom. The girls im- mediately accused her of originating the petition. She denied this but averred that Meiselman instigated the petition and had said, "Whoever didn't sign that list wasn't going to work for him no more." Although Lewis took the stand, she did not deny this testi- mony. Nor did Meiselman specifically deny that he had so instructed. Lewis. From the facts and circumstances set forth in the record, we find that she spoke to the girls as related above in accordance with Meisel man's instructions. The evidence does not show that the respondent initiated the peti- tion. It is clear, however, that Meiselman knew of and acquiesced in its circulation, that several foreladies approved of its circulation, and that Bessie Marshall, a forelady, circulated the petition among the pressers in her charge. Certain employees who had signed the petition were advised by Bessie Marshall and Thelma Lewis that it was not necessary for them to participate in the election since the petition was equivalent to a vote against the Union. The election was held in a vacant store several blocks from the respondent's plant. The employees voted between 4: 30 and 6:00 o'clock after the respondent's plant had closed for the day. During most of this time, Thelma Lewis and four other employees were sta- tioned in front of the polling place. Lewis ascribed her prolonged presence to her curiosity concerning the activities of the Union which she had been asked to join. She denied having spoken to any employees aside from those girls who were with her. Other em- ployees testified that Lewis and her friends had advised them, as they came up to vote, not to take part in the election if they intended to vote "No," that is, against the Union. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meiselman left the plant at about 4: 45 o'clock. Shortly there- after, he appeared at the polling place. He had set out in his automobile, he alleged, to visit a customer. "When I got to Halsted Street I was stopped behind a street car and as I turned to my left, I saw a couple of my girls standing outside of what I now know is the polling place." A representative of the Board immediately advised him that he had no right to be within the neutral zone. Meiselman engaged this representative in a conversation. Presently, he observed Thelma Lewis. According to Meiselman, he said to her, "Thelma, what are you doing here, come on." "I hustled her into the car and told her she had no right to be there and pulled her away, and I got her up to the corner and I told her to move along." Meiselman was asked to explain why he had not taken along any of Lewis' companions. He replied, "I didn't handle that-I don't know what they did. I don't know what happened to them." Lewis did not "move' along" but returned immediately to the polling place. Despite the warning given him by the representative of the Board, Meiselman also returned a second time, allegedly "to find out whether we would be allowed to see the counting of the ballots." Although he again observed Lewis standing in front of the polling place, he took no steps to make her leave. He was asked about this inconsistency in his conduct by the Board's attorney and testified as follows : Q. (By Mr. REYNOLDS.) She had disregarded your instruc- tions and come back? A. After 4:30 I can hardly tell a girl what to do. Q. Well, how did you happen to tell her the first time. A. I didn't like the thought of her standing there, I wanted her out of there. Q. Why didn't you like the thought of her standing there? A. We didn't want to have-We didn't-I didn't want any of my employees-I didn't want that girl hanging around the front there. 'We cannot attach any credence to Meiselman's testimony since it is replete with inconsistencies. He testified, with apparent difficulty, that he did not like the thought of Lewis standing in front of the polling place because lie did not want her "hanging around the front there." He allegedly told her that she had "no right" to be at the polls and to "move along." If Lewis occupied a position no different than other employees and Meiselman did, in fact, tell her that she had "no right" to be at the polling place, then he committed a gross violation of the Act. It is apparent, of course, that Lewis was not an ordinary employee and that Meiselman did not tell her NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 541 to "move along." For Lewis immediately returned to the polls and continued to pursue the same activities in which she was engaged before Meiselman had taken her away. Moreover, when Meiselman returned a second time, he made no further attempt to have her leave or to reprimand her for disobeying his orders. To explain this paradox, Meiselman said that he could not be expected to tell an employee what to do after 4: 30 o'clock. But his previous testimony, taken at its face value, indicates that he had instructed Lewis to leave the polling place after 4: 30 o'clock. From all the facts in the case, we find that Meiselman instructed Lewis and through her the other girls to station themselves in front of the polling place and dissuade the employees from participating in the election and that these girls acted in accordance with his instructions. We do not credit Lewis' denial that she had attempted to persuade the employees to refrain from voting. Not only was Meiselman present in the vicinity of the polling place, but his two brothers Meyer Meiselman and Maurice Meiselman, both officers of the respondent, his nephew Seymour Weiss, employed by the respondent, and Michael Cosentina, a foreman, were also present. These persons, Thelma Lewis, and the girls with her, at one time congregated across the street from the polling place. They remained there for about 10 or 15 minutes before they were told by a policeman to move on. A number of the employees testified that at the time of the lay- offs which followed the election," they were berated for having voted. Frances Ellington and Limmie Edwards testified that Bessie Mar- shall, their forelady, informed them when they were laid off that the respondent did not have any work for "voters." Martha Evans testified that Marshall said, "But I told you girls to stay away from the voting poll." Madge Bramblett was approached by Meiselman about 3 days after the election and told, "Madge, after all I have talked to you to change your mind about voting for the Union, you went ahead right on and voted the Union." He added that he knew she had voted in the election since he had instructed three girls to vote for him. We credit the testimony of these witnesses. B. Conclusions with respect to interference, restraint, and coercion We have described the respondent's relations with the Union from its inception in September 1937. They reveal a persistent campaign, waged mainly by Meiselman, to frustrate the growth and develop- ment of the Union. This campaign was initiated by Meiselman's speech to the employees in December 1937, shortly after the Union had sought recognition and had filed a petition with the Board for 8 See Section C, infra. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an investigation and certification of representatives . As we have found above, Meiselman used the speech to question the employees regarding their preference and membership in the Union, to berate those employees who failed to admit their membership in the Union, to denounce the Union as an organization interested only in collect- ing dues from the employees, to disparage the organizers of the Union as persons who would not associate with colored girls, to threaten the employees who continued their membership in the Union, to plead with them not "to let outsiders come in and break up our happy home?" and to hold out the promise of a better year if the employees remained loyal. In addition, Meiselman presented arguments to prove to the employees that it was unnecessary for them to belong to the Union. He pointed out girls who were earning "good salaries" and he cited himself as an example of a person who had, through diligent effort and long hours , risen from a lowly posi- tion in the plant. During the ensuing months, Meiselman pursued the same tactics in conversations with individual employees. He continued to ques- tion them about their affiliation with the Union and to reprimand them if they admitted or failed to admit that they were members of the Union. He included in these conversations vigorous anti- union statements as well as inquiries into the union membership of the employees. Nor did the respondent's activities cease after the Board had directed an election to determine whether the Union represented a majority of the respondent 's employees in an appropriate unit. The respondent now opposed the election . Its opposition first took the form of an attempt to restrain the Board from proceeding with the election. When this effort failed, it engaged in a plan designed to prevent employee participation in the election . The record indi- cates that this plan was based upon the belief that the Board could not certify the Union if less than a majority of the employees took part in the election . Meiselman gave verbal expression to this belief in his conversation with Bessie Rollins wherein he said, inter alia, "If I can keep 100 girls from going down there and voting, there won't be anything to it and they will leave us alone and won't bother us any more." It found tacit expression in all the activities in which the respondent indulged . The respondent did not try to induce the employees to vote against the Union . It warned and threatened employees against voting at all . Employees were advised that if they had signed the petition , it was not necessary for them to vote. Lewis and several other girls , acting for the respondent, stood in front of the polls and told the girls not to vote if they favored the respondent. Meiselman, his two brothers , a nephew, and a foreman stationed themselves across the street, from the polls. NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 543 We find that their presence was intended to and did have the effect of restraining the employees from voting in the election. Following the election, many employees who voted were laid off or discharged. They were told that the respondent did not have any work for "voters." The campaign to keep employees from voting was markedly effec- tive. This is best judged by the results of the election. Although approximately 225 employees were eligible to vote in the election, only 59 employees, or less than 25 per cent, participated. All but three of these employees voted for the Union.° We can appreciate the potency of the respondent's efforts to prevent employees from voting when we consider the nature of our experience in conducting elections. In the 13-month period from June 1, 1938, to July 1, 1939, we held 323 elections. In all but 11, a majority of the em- ployees involved in each election participated.1° Our experience has also shown that as a rule 90 per cent of all workers eligible to vote in Board elections actually cast ballots. We find that by questioning, warning, threatening, and intimidat ing employees with respect to their membership in the Union, by acquiescing and assisting in the circulating of the anti-union petition described above, and by its campaign to prevent employees from participating in the election, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. C. The refusal to bargain On June 1, 1939, the Board issued a Decision and Certification" of the Union as the exclusive representative of the production and maintenance employees of the respondent, excluding clerical and supervisory employees. This Decision and Certification followed the results of the election, hereinbefore described, in which 59 employees, out of an approximate 225 eligible, took part. Fifty-six of the 59 cast their ballots for the Union to give it a substantial majority of those employees who participated. Immediately following the issuance of this Decision and Certifi- cation, the Union communicated with the respondent by letter, re- questing it to fix a date on which the Union and the respondent could meet to begin collective bargaining. This letter was not answered. On June 2 and again on June 3, a representative of the O According to the testimony of Madge Bramblett , Meiselman told her that he *had instructed three girls to vote in the election for the respondent. 10 Of the 11 elections in which less than a majority participated, 7 involved steamship companies with the attendant difficulties in conducting the elections. 11 Matter of New York Handkerchief Company and International Ladies Garment Workers Union, Local No. 76, 7 N. L. R. B. 624. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union attempted to meet with', Meiselman. - On both occasions, Mei- selman refused to see the union representative. Again on June 16, 1938, the Union wrote to the respondent and again no answer was made to its letter. These facts were admitted by the respondent in its answer. It did not deny that it had refused to bargain collectively after the Union had been certified byi the Board. The respondent contended, however, that the Board was not empowered to certify the Union since less than a majority participated in the election 12 We have had occasion to give extended analysis to this argument advanced by the respondent. In Matter of R. C. A. Manufacturing Company, Inc. and United Electrical c6 Radio Workers of America,- we directed an election between the Employees' Committee Union and the United Electrical and Radio Workers of America. Before the election was held, the Employees' Committee Union decided to boycott the election and proceeded to engage in a campaign designed to discourage participation in the election. As a result of these tactics, only 3,163 employees voted out of a. total number of 9,752 employees eligible to participate in the election. An overwhelming majority of those employees who voted designated the United Elec- trical and Radio Workers of America. Upon the basis of this result, we certified the United Electrical and Radio Workers of America as the exclusive representative of the employees. In this case, we discussed the possible interpretations to which Section 9 (a) of the Act was subject. This section provides that "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representative of all the em- ployees in such unit. . ." We noted that "majority of the employees" might mean (1) a majority of those eligible to vote, (2) a majority of those who voted providing a majority of those eligible to vote participated in the election, and (3) a majority of those who voted 12 It also argued (1) that no question concerning representation existed, which it made by stating there was no "labor dispute," (2) that the Board had no authority to direct an election because the Union did not represent a majority of the employees, and (3) that the Board had no authority to direct an election since the Union did not represent any employees. We find these three reasons to be without merit. A question concerning representation had arisen as a result of the respondent's refusal to bargain with the Union and the Union introduced sufficient proof of adherence to entitle it to an election. Had it not been designated by a majority in the election which we directed, we would have dismissed the petition. 13 2 N. L. R. B. 159. See also Matter of American Hawaiian Steamship Company and Gatemen, Watchmen and Miscellaneous Waterfront Workers Union, Local 38•-124; Inter- national Longshoremen's Association, 2 N. L. R. B. 195; Matter of Williams Dimond d Company, et al. and Port Watchmen, Local No. 137, 2 N. L. R. B. 859; Matter of Charles Cushman Shoe Company, at al. and United Shoe Workers of America, 2 N. L. R. B. 1015, 1034; . Matter of Dahlstrom Metallic Door Company and United Electrical, Radio & Machine Workers of America, Local No. 307, 11 N. L. R. B. 408. NEW YORK HANDKERCFIIEF MANUFACTURING COMPANY 545 even though less than a majority of those eligible to vote took part in the election. We gave thorough consideration to the various interpretations. In adopting the third interpretation, we observed, inter alia, that a contrary interpretation would place a premium on the tactics em- ployed by the Employees' Committee Union to defeat the very pur- poses of the Act. In an obiter dictum statement we said, "Employers could adopt a similar strategy and thereby deprive their employees of representation for collective bargaining." In the instant case we have fully considered the strategy, used by the respondent to prevent its employees from voting in the election. We have found that this strategy accomplished its purpose. We have also found that the activities pursued by the respondent constituted a gross form of interference with, restraint, and coercion of its em- ployees in the exercise of the rights guaranteed by the Act. If we were obliged to hold that the election was inconclusive, then the respondent, through the violation of another section of the Act, would have succeeded in upsetting the machinery which the Act provides for an investigation and certification of representatives. The con- tention of the respondent herein is plainly untenable. We find, at all times since June 2, 1938, the respondent has refused to bargain collectively with the Union as the representative of all the maintenance and production employees of the respondent excluding clerical and supervisory employees and that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. D. The discharges, discriminations, and lay-offs 1. The pressers The complaint alleged that the respondent discharged Frances Ellington, Thelma Knox, Earley Hurley, and Ruth Harris and caused Limmie Edwards and Minnie Jackson to work fewer days than other employees doing similar work because of their activity and member- ship in the Union. The respondent denied that it had discriminated against or discharged any of the above-named employees. It alleged that these girls were laid off or given less work during the continuance of the respondent's slow season.14 14 In Matter of Tovrea Packing Company, a corporation, and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 313, 12 N. L. R. B. 1063, we said: "The word 'lay-off' as distinguished from 'discharge' usually implies that the employee may be reemployed at some future date. For our purposes it is immaterial which word is used to designate the termination of employment. The issue for our determination is whether or not the respondent discouraged membership in the union, either by discharging or by laying off the above-named employees. For the sake of the following discussion we shall use the term 'lay-off,' preferred by the respondent." We will proceed in like manner herein. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These six girls worked as pressers. The respondent had approxi- mately 21 pressers in its employ prior to the election. We will dis- cuss first the employment history of each of these girls and their relations with the respondent. Frances Ellington had worked for the respondent for approxi- mately 3 years before she was laid off on March 25, 1938. She joined the Union when it was organized in September 1937. On the day of the election, she was asked by Bessie Marshall to and did sign the petition. At the end of that day, Marshall told her that since she had signed the petition, she did not have to go to the polls. Never- theless, she voted in the election. She was observed by Thelma Lewis who advised her not to vote if she was going to vote against the Union. On the day following the election, Marshall laid her off and informed her that the respondent did not have any work for "voters." She had not worked for the respondent from that day to the date of hearing. Thelma Knox was hired by the respondent in August 1934 and laid off on March 25, 1938. She had joined the Union in the fall of 1937. She participated in the election and was seen by Thelma Lewis and the other girls. She had not been reemployed at the time of the hearing. Earley Hurley began to work for the respondent in 1929. She became a member of the Union in the fall of 1937. She voted in the election contrary to the advice given her by Lewis as she came to the polls. On March 29 she was laid off and had not been rehired at the time of the hearing. The respondent maintains, in its brief, that she has since been reemployed. Ruth Harris had worked for the respondent from March 1933 until March 29, 1938, when she was laid off. She joined the Union in the fall of 1937. She heard Lewis state that employees who voted in the election would not have a job with the respondent and that if the employees were "for him," they were not to go to the polls. At the polling place, Lewis advised her that she was not "supposed to" vote. She has not been employed by the respondent since the date on which she was laid off. Limmie Edwards had been employed by the respondent for about 3 years before she was laid off on the day after the election. At the polls she heard Lewis and the other girls say that "if you are for Jack, don't go in there." She was reemployed on June 9, 1938. Minnie Jackson had worked for the respondent since 1929 prior to the election in which she took part. She joined the Union in the fall of 1937. She was laid off on the day following the election. On June 14, 1938, she was called back to work. The respondent contends that these lay-offs were necessitated by the drop in production after the election. The evidence introduced NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 547 by the respondent proves that production decreased to a substantial extent following the time of the election. From the production charts prepared by the respondent, it appears that the decrease set in sometime between March 12 and March 26, 1938, and became more acute thereafter. By April 25, production was approximately 50 per cent below that of the preceding February. From this low, pro- duction commenced to pick up during the months of May and June. Although the respondent claimed that the decrease was unusually great, a slow-up in production at this time of the year was a usual occurrence. The employees affirmed the respondent's contention that produc- tion habitually dropped at this time of year. But they maintained that in other years the respondent followed a policy of dividing the available work among all the girls. Meiselman admitted that the foreladies, who were entrusted with making the lay-offs, were in- structed to divide up the work equally, as best they could.15 He testified that he desired to maintain the entire organization during the slack period. He also admitted that in 'other slow periods the. employees alternated in working.'" Bessie Marshall, the forelady in charge of the pressers, explicitly stated that it was the practice of the respondent to divide the avail- able work among all the girls. She testified as follows : Q. Well, the next week then do you lay the other section off. A. That is the way it goes. Lay off a section this time. and next time the other girls. Q. You consistently follow that, do you? A. That is it. The Board's attorney then inquired why the pressers whose cases we are now considering, had not received more work. She replied : A. Well, we was expecting for the work to pick up and because we didn't call them back is from changing them around from mangle to mangle it burns up so many sheets and uses so much ' The respondent does not follow a policy of seniority in making ]ay-offs. 1BMeiselman's testimony in this respect tended to be confusing but does not alter the conclusions that in other years the respondent divided the work. He testified, in part, as follows : Q. You have heard testimony of some of the girls that when work was slack all the girls would be sent home in the middle of the week, and perhaps were back. the next Monday and that all participated in what work there was? A. It was not done that way. Q. It was not? A. No, they alternated, or sometimes they alternated, and let come In and some stay away, and sometimes they sent them home for a solid week, sometimes for two weeks. If a girl was sent home she was told to come back maybe In three days and we have had times when girls have been laid off-we have got girls who were laid off, folders and pressers that were laid off In December and have not been called back yet. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gas, and so much trouble to make out a page for this girl one day and one the next. Q. So you just left the same girls that were on the jobs stay there. A. That is it. We do not attach any weight to the reason advanced by Marshall to justify the respondent's failure to divide the work at this time. Meiselman admitted that the foreladies were instructed to divide the work and in previous years the work had been divided despite the inconveniences suggested above. It is significant, we believe, that the respondent has not advanced the argument suggested by Marshall in any of its briefs. The respondent introduced into evidence cards for each of the em- ployees indicating the hours of work 17 and the wages they received -for each 2-week period extending from March 12, 1938, to May 21, 1938. Since the girls were paid by the piece the number of hours .that they worked is more significant, for our purposes, than the -wages they received.'8 Pressers-Num- her of hours worked Average hours worked bi- weekly Pressers-Num- her of hours worked Average hours worked bi- weekly Feb. 6- Mar. 12- Mar. 26- Feb. 6- Mar. 12- Mar. 26- Mar. 12 Mar . 20 May 21 Mar. 12 Mar. 26 May 21 1. R. Bradford ------- 75 56 64 . 2 12. I . Turuer _________ 73 56 26.1 2. V. Fuller__________ 68 56 73.8 13. C. Bass ___________ 74 4 56 53.4 3. S. Lane -_-______- 67 48 74.8 14. A. Lee 81 64 --------- 4. L. Clinton-------- 72 56 71.8 15. M. Mitchell------- 604 64 --------- 5 . B. Lewis_______ ___ 81 56 74.3 16. F. Ellington I ______ 73 56 6. G. Bannister------ 69 64 73 . 9 17. T. Knox___________ 73 63% ......... 7. Z. Branch --------- 81 56 73.7 18 . E. Hurley_________ 75 48 --------- 8 . J. Ware ----------- 28 56 73 . 9 19. L . Edwards ------- 69 56 --------- 9 . B.Tatum -------- _ 75 56 76.9 20 . R. Harris_________ 75 . 56 --------- 10 . A. McGill --------- 69 64 74 . 4 21. 51. Jackson_______ 68^tt 64 ------ 11 . S. Eckford-------- - 60 56 42.2 I The girls whose names are italicized were allegedly discriminated against. In the first column is listed the number of hours worked by em- ployees for the 2-week period ending March 12, 1938. Production for this period was normal. The hours of work for the succeeding 17 These cards indicated the number of hours the girls were on the premises and not the total number of hours actually worked by them. But as the respondent stated in its brief, "there never was a time when one girl waited a greater length of time than other girls, so that in the space of a week, the waiting period would practically be the same for all girls ." we can, therefore, make a comparative study of these cards without making any.allowance for the time during which the girls were on the premises but not working. 1s Some girls might be slower than others . If all were given the same or approximately ,same, number of hours of equivalent work , no discrimination would exist even if certain girls earned more money than others. NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 549 2 weeks are contained in the second column. During this period, there was an appreciable drop in production. But it is apparent therefrom that none of the pressers were laid off. Instead, each worked a fewer number" of hours. This would be in accordance with the policy which the respondent followed in other years. The third column contains the average number of hours that the pressers worked in each of the bi-weekly periods during the succeeding 8 weeks. These figures indicate that certain pressers worked a greater number of hours biweekly after March 26, when production took a further drop, than they had for the preceding 2 weeks. On the other hand, the six employees whom we are now -considering received practically no work at all.19 Instead of dividing the work as it had from March 12 to March 26, 1938, the respondent gave all the work to certain girls to the exclusion of others. While the respondent failed to make a division of the available employment among the pressers and, as we find below, among the shakers, 'in practically every other department it divided the avail- able employment as it had in former years. This appears from the employment records which the respondent introduced into evidence. We are convinced from the facts and circumstances of this case that the respondent has discriminated against Ellington, Hurley, Harris, Jackson, Knox, and Edwards because of their union activity. Despite the respondent's expressed hostility to the Union, these em- ployees continued as members. In the face of the respondent's vigorous efforts to keep employees from voting in the election, these employees took part. Almost immediately thereafter their work was terminated. Although the respondent had been dividing the available work during the slack preceding 2 weeks, it refused to make a division of the work thereafter among the pressers and the shakers. This was contrary to the policy it had observed in other years and the procedure it followed in other departments of the plant after March 26, 1938: No satisfactory reason for this change in policy was advanced. The respondent maintained that towards the latter part of May it told the girls who were working to inform their friends to return to work.20 None of these six girls was apprised of this notice or 10 Harris and Hurley both worked until March 29, 1938, before they were laid off. They were credited with having received 8 and 103/4 hours of work respectively,, between March 26 and March 29, 1938, 20 Near the beginning of the hearing, the attorney for the respondent offered to introduce Into evidence copies of notices allegedly sent to certain employees including Ellington and Hurley. Ellington and Hurley denied receipt of these notices. Thereupon, the Trial Examiner asked the respondent's attorney to prepare for him a list of those employees, to whom notices were allegedly sent. The Trial Examiner said that he would communicate 'with the post office authorities and have them attempt to trace the letters. The re- spondent's attorney promised to give the Trial Examiner such a list on the following day. Although the Trial Examiner made frequent requests for this list on the succeeding 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD returned to work as a result of it. We do not consider this a satis- factory offer of reinstatement nor does it alter our determination that, the respondent discriminated against these girls. The respondent mentions frequently in its briefs that certain em.-. ployees who were laid off or discharged did not make a diligent effort to secure other employment and seems to suggest that we should consider the laxity of these employees in seeking other em- ployment in computing the amount of back pay to be awarded them. We find no merit in this argument. For one thing, the record does not establish that the employees have been unduly lax in seeking other employment and, for another, we are not required by the Act in computing back pay to consider the efforts of an employee to secure other employment after he has been discriminatorily laid off or discharged.21 Ruth Harris testified at the hearing that she did not wish to return to the respondent's employ under the same working conditions. We will, accordingly, award her back pay only up to the time of. hearing. The respondent states in its brief that Thelma Knox was told to report to work on June 1, 1938, when she telephoned to inquire about employment. Knox testified, and her testimony was not contradicted, that she was told when she called that the respondent did not have any work for her. We accept her testimony as true. The respondent argued that Ellington had been advised to return to work and through a girl named Jessie Ware informed the re- spondent that she could make more money at the races. Ellington denied that she had received notice to return to work or that she had replied in that manner. Although Ware was still employed by the respondent at the time of hearing, she was not called as a witness. The Trial Examiner concluded that Ellington was telling the truth and we also credit her testimony. We find that by laying off Ellington, Hurley, Harris, Knox, Jack- son, and Edwards because of their union activity 'and participation in the election the respondent has discouraged membership in a labor organization and has thereby interfered with, restrained, and coerced r. days of the hearing, it was not forthcoming. On the last day of the hearing, the re- spondent's attorney again offered these notices for admission into evidence . The Board's attorney objected upon the grounds that a proper foundation had not been laid. The respondent's attorney then offered to withdraw the alleged notices maintaining that the record was sufficient without these notices. Pursuant to this statement of the respondent's attorney, the Trial Examiner rejected the notices and had them placed in a rejected file. We see no reason to reverse this ruling or to give any consideration to these alleged notices. 21 The respondent also argues that the fact that certain employees who were laid off did not seek other employment indicates that they appreciated that the lay-off was tem- porary. The respondent would have us infer therefrom that the lay-offs were not dis- criminatory. We do not believe that this circumstance , if it existed, would warrant the conclusion sought by the respondent. NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 551 its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. The shakers It was alleged in the complaint that the respondent discharged Martha Evans and Eddie Lee Washington because of their activity and membership in the Union. This was denied by the respondent. As with the pressers, the respondent maintained that these girls were laid off because of the seasonal drop in production. Martha Evans had been employed by the respondent since Jrdy 1935. She had joined the Union in the fall of 1937. On March 29, after the election in which she participated, Evans was laid off and did not work for the respondent from that day to the date of hearing. The respondent stated in its brief that she has since been rehired. Evans was advised by Lewis not to vote in the election since the peti- tion, which she had signed, was equivalent to a "No" vote. When she was laid off, her forelady informed her, "But I told you girls to stay away from the voting poll." Eddie Lee Washington had worked for the respondent from 1929 until she was laid off after the election. She had joined the Union in the fall of 1937. She voted in the election and was observed by Lewis at the polls. She has not worked for the respondent since she was laid off. We have discussed in connection with the pressers the usual prac- tice which the respondent followed in laying off employees during the slack periods. We concluded that it was customary to divide the work among all the girls. This conclusion applies with equal force to these employees. The following chart contains the number of hours which the shak- ers worked for the same 12-week period used for the pressers. It was made up in the same manner and also from the wage and hour cards introduced into evidence by the respondent. Shakers-Num. Average hours Shakers--Num. Average hours her of hours worked her of hours worked worked bi-weekly worked bi- weekly Feb.26- Mar.12- Feb.26- Feb.26- Mar. 12- Feb. 26- Mar. 12 Mar . 26 May 21 Mar. 12 Mar. 26 May 21 1. P. Hickman ------- 72 48 74. 9 5. S. Means -------- 168 48 2. W. Stephens------- 69 56 73 . 6 6. A. Jacobs __________ 73 44 --------- 3. F. Stewart --------- 83 80 76.9 7. M. Evans__________ 89 72 _ 4. C. Johnson--------- 73 61 ;44 48 . 4 8. E. Washington ----- 83 80 ________- --------- I It appears that Means worked 91,44 hours after March 26, 1938 , Jacobs 97 hours, Evans 16 hours, and Washington 10- hours. As with the pressers, this chart reveals that the respondent divided the available work for the 2 weeks before the election whereas there- 247383-40-vol. 16-36 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after certain girls received more work than they received previously while Evans and Washington received practically none. . Considering the respondent's hostility to the election in which Evans and Washington participated and the policy of dividing available work which the respondent followed in other years, we find that the respondent has discriminated against these two girls and \has thereby discouraged membership in the Union. We also find that the respondent has thereby interfered with, restrained, and. coerced its employees in the exercise of the rights guaranteed by Section 7 (a) of the Act. The respondent contends in its brief that Washington was notified to return to work but failed to do so. We find that the evidence does not support this contention. 3. Ada White Ada White was discharged on November 5, 1937, allegedly as part of an efficiency plan. She had worked for the respondent intermit- tently from 1924. She had joined the Union in September 1937. In March 1937, after Meiselman had reduced the wages of the employees, White, together with several other employees, visited Meiselman to request a restoration of this wage-cut. White spoke for the girls, stating their contentions. After some discussion, Meiselman said that he would restore the cut after a week or two. The following day, the girls engaged in a short stoppage of work in protest against his failure to make an immediate restoration. Meiselman quickly appeared on the scene and walked from table to table asking the girls what they wanted. White acted as spokesman for her table. Meiselman promised to restore the wage-cut for most of the employees but the girls refused to return to work unless he restored the wage-cut for all the employees. Meiselman then called the police who tried to induce the girls' return to work. During the ensuing melee, Meiselman engaged in an argument with White and accused her of turning off the power which led to the stoppage of work. Meiselman told the officers to put White out of the plant, which they proceeded to do. The other girls objected, stating that if White had to go, they would all leave. Meiselman thereupon agreed to permit White to remain. Meiselman contended that White had been discharged because she was a slow, although a good worker. He testified, "We had been discussing a new plan-I didn't know that she was going to be discharged, but when I got back from New York or New Jersey I had seen how efficiently some of the plants had been-individual girls had been producing this same type of work, and when I got back I had in mind to put our plant on the same basis as the Eastern NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 553 plants. I had discussed two or three girls with the forelady and nothing definite was done on it at that particular time. Then one day I found out that we were ready to go ahead with the plan, and the way I found out about it is when the girl came for her pay." In order to demonstrate that White was a slow worker, Meiselman introduced into evidence the amount of her earnings and hours for each 2-week period from August 1 to November 6, 1937. He also introduced into evidence the corresponding earnings and hours of three other girls doing the same work as Ada White. Since the girls were paid by the piece it is possible to compute their per-hour rate of earnings. Ada White maintained the following per-hour rate for each 2-week period. For the 2-week period ending August 11 11 11 11 11 1i tt ti 11 11 11 11 11 <t <1 11 <i 11 6 September 11 October 11 November 14, 1937----------------- 21 cents 28, 1937----------------- 23 " 11, 1937----------------- 25 29, 1937----------------- 20 9, 1937----------------- 22 23, 1937----------------- 21 6, 1937----------------- 20 For the same periods of time, the other girls, Billingsley, Lee, and Holden, averaged from 27 to 32 cents per hour. This evidence, how- ever, is not conclusive since there were approximately 33 other girls who did the same work as these girls. We do not have in the record any evidence of the earnings and hours of the other girls for the period from August 1 to November 6, 1937 . We do have such evi- dence, however, for the period from February 26 through May 21, 1938. This evidence is contained in the following table : Average hourly earnings Average hourly earnings Feb. 26- 12 M Mar.12- M 26 Average an 26 Feb. 26- 12 M Mar.12- M ` Average Mar.26- ar. ar. May 21 ar. ar. 26 May 21 1. I. Johnson-_____-__ 25.3 21.7 22.7 18. F.Adams --------- 23.6 _________ --------- 2. J. Yarbro_____-_ 30.7 27.6 27.1 19. L. Lightfoot------- 21.6 25.1 21.1 3. A. Billingsley----- 24.9 21.0 20.5 20. S. McCarter ------- 15.8 17.0 17.4 4. C. Daniel_________ 29.9 28.2 27.9 21. N. Nesbit_________ 16.1 16.1 _ 5. L. Lee 29.0 24.5 25.8 22. B. Banks________-_ 32.8 30.7 . 5 6. W.Thomas------- 30.9 25.7 26.8 23. G.Wiley ---------- 28.9 27.7 26.6 7. A. Wilson_________ 24.1 20.9 18.3 24. V. Bibbs__________ 15.0 17.4 18.0 8. J. Davis ----------- 31.9 30.4 30.4 25. M.Meyers -------- 23.9 25.8 25.6 9. A. Lavender-_____ 21.7 24.8 21.5 26. R. Ross___________ 26.8 27.5 21.4 10. M. Griffin _________ 33.4 30.6 27.8 27. V.Jackson -------- 35.0 40.0 32.6 11. G. Caire 28.8 31.0 30.4 28. M. Mitchell ------- 28.0 26.1 31.1 12. C. Carpenter-_____ 31.5 28.3 25.2 29. 1. Lightfoot_______ 33.7 37.1 35.5 13. E. Hale___________ 19.9 21.2 20.8 30. H.Havard-------- 30.3 --------- 14. P.Bundy --------- 17.4 18.5 17.4 31. M.Woods --------- 21.9 1.5 ____ 15. B. Travis_________ 16.6 21.8 _ 32. E. McClinton 20.3 21.8 25.3 16. N.Jones__________ 23.7 27.2 2.8 33. J. Holden_________ 26.2 20.6 25.6 17. D. January-------- 23.6 26.1 28.2 This chart indicates that many girls doing the same work as Ada White averaged less per hour during this period than she did at the 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time when she was discharged as a slow worker in connection with an alleged efficiency plan. It is true that production was not at the same peak during this latter period. However, for the 2-week period from February 26 to March 12 production was nearly com- parable to the period preceding White's discharge. For the period ending March 12, 1938, the respondent produced 112,147 dozen handkerchiefs and paid salaries amounting to $6,324.32. For the period ending October 9, 1937, the respondent manufactured 115,796 dozen and paid $7,060.82 in salaries; for the period ending October 23, 1.937, 119,796 dozen and $7,397.44 in salaries ; to November 6, 1937, 118,958 dozen and $7,133.32 in salaries. At least 17 girls during the comparable period from February 26 to March 12 were as slow if not slower than Ada White. The names of 14 of these girls appeared on the respondent's pay roll for the period from November 22 to December 4, 1937. It is reasonable to conclude therefrom that these girls were employed on November 5, 1937, when White was discharged. November was a normal produc- tion month and not many, if any, changes in employment were likely to occur. From all the facts in this case, we conclude that White was dis- criminatorily discharged. We do not find any merit in the respon- dent's contention that Ada White was discharged as part of an. efficiency plan. For one thing, the record establishes that White was no slower than many other girls who were not discharged at that. time. It is not likely that an efficiency plan would result in the dis- charge of only one employee, particularly since White admittedly was a good worker and had been employed by the respondent for many years. Meiselman's description of the manner in which the efficiency plan took effect is not plausible. Although he was actively in charge of production, lie testified that he did not realize that this efficiency plan, which he had imported from New York, was in operation until after he had learned that White had been discharged.- White was an active worker on behalf of the other employees in- trying to secure a restoration of a wage-cut. We find that these- activities were the real reason for her discharge. Since the respond- ent discharged White because she had engaged in activities de- signed to further the right of employees to self-organization and collective bargaining, we find that the respondent has interfered' with, restrained, and coerced its employees in the exercise of the. rights guaranteed by Section 7 of the Act. Section 2 (5) of the Act defines the term "labor organization" as, meaning "any organization of any kind, or any agency or any em- ployee representation- committee or plan in which employees partici-. pate and which exists for the purpose, in whole or in part, of dealing: NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 555 -Nvith employers concerning grievances, labor disputes, wages, rates ,of pay, hours of employment, or conditions of work." In view of the fact that White was a leading member of a committee chosen by the employees for the purpose of dealing with the respondent concerning their rates of pay, we conclude that she was acting on behalf of a labor organization. We find, therefore, that the respondent, by dis- criminating against Ada White with regard to the hire and tenure of her employment has thereby discouraged membership in a labor organization 22 and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. 4. Madge Bramblett Madge Bramblett was discharged on June 28, 1938, allegedly for insubordination. She had worked for the respondent since 1933, intermittently, and had joined the Union when it was organized at the respondent's plant in the fall of 1937. In December 1937 after Meiselman had made the speech hereinbefore described, he informed Bramblett that he was surprised that she had joined the Union. He added, "Well, I won't give you girls Union wages. Before I would give you girls Union wages I would close my factory." Sometime thereafter, Meiselman said to Bramblett, "If this Union takes this place over, don't you know you will have different bosses, you will have a different forelady, and you don't want those conditions." On another occasion, he said, "Before I will let this. place be union- ized, I will fire all these colored girls and put white girls in." Bramblett voted in the election. About 3 days thereafter, she alleged, Meiselman said to her, "Madge, after all I have talked to you to change your mind about voting for the Union, you went ahead right on and voted the Union." He averred that he knew how she had voted, because he had instructed three girls to vote for him. Although these statements were, for the most part, denied by Meiselman, we find that they were made. We have in mind his ac- tivity in connection with the election, his hostility to the Union, and his untrustworthiness as a witness. On the morning of her discharge, Bramblett observed Meiselman and a forelady asking Catherine Moore, an employee, to sign a re- lease incident to a discharge from employment. Since she was chairman of the union committee concerned with these matters, Bramblett intervened. This occurred shortly before 8:00 o'clock in the morning. Meiselman immediately instructed Bramblett to return to her machine. She refused, stating that she would leave 22 Cf. Matter of Tovrea Packing Company, a corporation and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 313, 12 N. L. R. B. 1063. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when the 8: 00 o'clock bell rang. She remained a few minutes thereafter and then returned to her machine. During the day, Meiselman asked Bramblett to give him a piece of paper which he thought was a note that she was passing. Bramblett refused to comply with this request. At the end of the working day, Meiselman called Bramblett into his office and informed her that she was being discharged for insub- ordination. He admitted to her that she was a good worker but said that she had refused to cooperate. Bramblett had several other encounters with Meisehnan. Shortly before her discharge, she had engaged in an argument with him about her presence at the head of the steps where she was waiting for some friends. About a month before she was discharged, she had been accused of cutting the belt of her machine to make it go faster. Despite these circumstances, we are convinced that her membership and activity in the Union were the real reasons for her discharge. On many occasions before her discharge, Meiselman had berated her for her membership in the Union. She, nevertheless, retained her membership and acted as chairman of an important union commit- tee. She participated in the election, much to Meiselman's annoy- ance. In view of these circumstances, we find that the respondent discharged Bramblett for union activity, and has thereby discouraged membership in the Union. We also find that the respondent has. thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. 5. Alberta McClain Alberta McClain had worked for the respondent for some time in 1923 and 1924 and again for 10 months prior to her discharge on May 4, 1938. She was a{ member of the Union and had voted in the election. She was allegedly discharged because she was a- substandard worker. Meiselman testified that he had discussed with a forelady the necessity of discharging certain substandard workers in anticipation of the imminent Wage and Hour Act. From the production records introduced into evidence, it appears that McClain averaged no better than 12 or 13 cents per hour while most of the girls with whom she worked averaged from 20 to 32 cents per hour. In view of these facts, we find that McClain was not discharged for union activity. 6. Jessie Anderson Jessie Anderson began to work for the respondent on August 19, 1935. She was discharged for insubordination on June 16, 1938. She, too, was a member of the Union and had voted in the election. NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 557 Her sister had testified for the Union in the hearing in connection with the investigation and determination of representatives. There- after, on several occasions, Meiselman had berated her for the testi- mony her sister had given. On the day she was discharged, Meiselman noticed that she let the hemmer of her machine down improperly. He testified that he reprimanded her, stating that she should have "better sense." She responded, "If I have no sense, then you are a God damned fool." In her version of the story, Meiselman said, "Don't let the hemmer down so fast, so hard. How would you like for me to crack your -head like you crack that hemmer down?" She replied, "Here is my head; you crack it." He then said, "Shut up, you damn fool, and go back to work." Anderson was asked if she had called Meiselman a "God damn fool" and answered, "No, I don't remember that." In view of her testimony, we conclude that she was not discharged because of her activity in the Union. 7. James Lee James Lee was employed by the respondent as a porter, checker, and receiving clerk. He was hired on August 6, 1935. Lee joined the Union in the fall of 1937, refused to sign the petition which was circulated on the morning of the election, and voted in the election. He was laid off on the following Tuesday. The respondent contends that Lee was laid off because he had re- fused to work on the truck during the slack period. Obie Powers, another employee, was willing to do this work. Lee denied that he had refused to go out on the truck. Meiselman gave the follow- ing account of his conversation with Lee relative to his refusal to work on the truck : Q. What did you say to him and what did he say to you? A. (MEIsELMAN.) I said, "Lee, I have nothing for you if you can't go out on the truck. You will have to go out on the truck or I haven't got any job for you." He said, "Well, okay, but I wouldn't want to do that too much, can't you let me come in and do the same thing ?" I explained that I could not do it and would not do it. I said, "We haven't got enough work to just keep you in here sweeping and things like that." He says, "You can do as you want." From this testimony we conclude that Lee did not refuse to go on the truck. Although Lee appears to have objected to this change in job, when he was told that he would either have to go out on the truck or lose his job, he said, inter alia, "okay." In view of this tes- timony, the respondent's hostility to persons who took part in the 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election, and Meiselman's anti-union bias, we conclude that the re- spondent discharged Lee because of his union activity and has thereby discouraged membership in the Union. We also find that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. After his lay-off, Lee applied for and obtained it position with the Works Progress Administration. This job paid him $55 per month whereas he had earned only $11 to $12 a week while working for the respondent. During the hearing, he said that he did not wish to be reinstated under the same conditions. When he was- asked under what conditions he would want his job back, he said, "Well, for more money and treated better." We will award Lee back pay only up to the time he secured his job with the Works Progress Administration. 8. Louise Heard Heard had worked for the company intermittently since 1917. She joined the Union in the fall of 1937. On April 8, 1938, she was sent home and told to report in a week. At the end of the.week, she called the respondent, spoke to someone in the office, and advised that person that she was sick and could not come to work until the following Monday. On the following Monday she was still sick and did not report to work. She returned for work on June 6, 1938. Meiselman spoke to her and then referred her to a forelady. The forelady noted her telephone number and advised her that she would be called when work was available. She has not been called since that day. We do not find that the respondent has discriminated against Heard because of her activity or membership in the Union. 9. Fanny Echols, Loviei Lee, Anna Billingsley, Christine Bonhart, Rosetta Devow, Amanda Walker, Bessie Rollins, Catherine Moore, Anna Walker, and Mary Sherron These girls were all members of the Union and voted in the elec- tion. The complaint alleged that they did not receive as many hours of work after the election as other employees in similar ca- pacities because of their membership and activity in the Union. From the wage and hour records of these and other employees which the respondent introduced into evidence, it does not appear that the respondent has discriminated against these girls. We therefore find that the respondent has not discriminated against these employees because of their union activity. NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 559 10. Ilda Johnson Although the complaint charged that the respondent had dis- criminated against this employee, no proof was introduced in her behalf. We will dismiss the allegations of the complaint with re- spect to this employee. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the re- spondent 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 that it cease and desist therefrom and that it take certain affirmative action which will effectuate the policies of the Act. We have found that the respondent has refused and continues to refuse to bargain collectively with the Union as the duly certified representative of its employees with respect to wages, rates of pay, hours of employment, and other conditions of employment. We shall order the respondent to bargain collectively with the Union, upon request. We have found that Frances Ellington, Thelma Knox, Earley Hurley, Martha Evans, Eddie Lee Washington, James Lee and Ruth Harris were discriminatorily laid off. Accordingly, we shall order the respondent to offer them reinstatement without any prejudice to their rights and privileges as employees. We shall further order the respondent to make Frances Ellington, Thelma Knox, Earley Hurley, Martha Evans, and Eddie Lee Washington whole for any loss of pay they may have suffered by reason of their lay-off by pay- ment to each of them of a sum equal to the amount which she nor- mally would have earned as wages from the date of her lay-off to the date of the offer of reinstatement, less her net earnings 23 during said x+ 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 his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill workers Union, Local 2590, 8 N. L. R. B . 440. Monies received for work performed upon Federal , State, county , municipal , or other work-relief projects 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 govern- ment or governments which supplied the funds for said work -relief projects. 560 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD period.24 For the reasons above stated,25 we will order back pay for James Lee only up to the date on which he began work for the Works Progress Administration less his net earnings during that period and for Ruth Harris only up to the date of the hearing, less her net earnings during that period. We have found that the respondent discriminatorily caused Limmie Edwards and Minnie Jackson to work fewer hours than other em- ployees performing the same work. We shall order the respondent to make Limmie Edwards and Minnie Jackson whole for any loss of pay they may have suffered by reason of the discrimination in regard to terms or conditions of employment by payment to each of them of. a sum equal to the amount which she normally would have earned as wages from the date of the commencement of the discrimination against her to the date of its termination, less her net earnings during said period. We have found that Ada White and Madge Bramblett were dis- criminatorily discharged. Accordingly, we shall order the respond- ent to offer them reinstatment without prejudice to their rights and privileges as employees. We shall further order the respondent to make Ada White and Madge Bramblett whole for any loss of pay they may have suffered by reason of their discharge by payment to each of them of a sum equal to the amount which she normally would have earned as wages from the date of her discharge to the date of the offer of reinstatement, less her net earnings during said period. Upon the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Ladies Garment Workers Union, Local No. 76, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By refusing to bargain collectively with International Ladies Garment Workers Union, Local No. 76, as the exclusive representative of the production and maintenance employees of the respondent excluding clerical and supervisory employees, the respondent has 24 The respondent has alleged in its brief that several of the employees , who we have found were discriminatorily laid off, were offered and accepted reinstatement to their former positions . As to those employees who may have been offered reinstatement since the hearing, the period or periods during which they are entitled to back pay shall not extend beyond the dates of any such offers of reinstatement , provided that such rein- statement was offered unconditionally and without prejudice to their rights or privileges as employees . Cf. Matter of Phillips Granite Company and Granite Cutter's International Association of America and the Quarry Workers' International Union of North America, Affiliated with the American Federation of Labor, 11 N. L. B. B. 910. 25 See Section III, supra. NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 561 engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment or terms or conditions of employment of Frances Ellington, Thelma Knox, Earley Hurley, Martha Evans, Eddie Lee Washington, James Lee, Ruth Harris, Limmie Edwards, Minnie Jackson, Ada White, and Madge Bramblett, thereby discouraging membership in It labor organization, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent has not discriminated in regard to the hire and tenure of employment or terms or conditions of employment of Jessie Anderson, Alberta McClain, Louise Heard, Fanny Echols, Loviei Lee, Anna Billingsley, Christine Bonhart, Rosetta Devow, Amanda Walker, Bessie Rollins, Catherine Moore, Anna Walker, Mary Sher- Ton, and Ilda Johnson, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, New York Handkerchief Company, Chicago, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Ladies Garment Workers Union, Local No. 76, as the exclusive representa- tive of the production and maintenance employees, excluding clerical and supervisory employees, at its Chicago, Illinois, plant; (b) Discouraging membership in International Ladies Garment Workers Union, Local No. 76, or any other labor organization of its employees, by discharging, laying off, or refusing to reinstate any of its employees because of membership or activity in connection with any such labor organization; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the International Ladies Garment Workers Union, Local No. 76, as the exclusive representative of the production and maintenance employees, exclud- ing clerical and supervisory employees, at its Chicago, Illinois, plant, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Offer to Frances Ellington, Thelma Knox, Earley Hurley, Martha Evans, Eddie Lee Washington, Ada White, and Madge Bramblett immediate and full reinstatement to their former posi- tions without prejudice to their seniority and other rights or privi- leges previously enjoyed by them; (c) Make whole Frances Ellington, Thelma Knox, Earley Hurley, Martha Evans, Eddie Lee Washington, Ada White, and Madge Bramblett for any loss of pay they have suffered by reason of their lay-off, 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 her lay-off to the date of the offer of reinstatement, less .her net earnings during said period, provided, however, that the respondent shall deduct from the amount otherwise due 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 amounts so deducted 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; (d) Make whole Limmie Edwards and Minnie Jackson for any loss of pay they have suffered by reason of the discrimination against them in regard to their terms or conditions of employment, by pay- ment 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 the beginning of the discrimination against her until its termination, less her net earnings during said period; (e) Make whole James Lee for any loss of pay he has suffered by reason of his lay-off, by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from the date of his lay-off to the date on which he received employment with the Works Progress Administration, less his net earnings during said period; NEW YORK HANDKERCHIEF MANUFACTURING COMPANY 563 (f) Make whole Ruth Harris for any loss of pay she has suffered by reason of her lay-off, by payment to her of a sum of money equal to that which she normally would have earned as wages during the period from the date of her lay-off to the date of the beginning of the hearing, less her net earnings during said period; (g) Post immediately and keep posted in conspicuous places throughout its plant at Chicago, Illinois, notices stating that the New York Handkerchief Company will cease and desist in the man- ner set forth in 1 (a), (b), and (c) and that it will take the affirm- ative action set forth in 2 (a), (b), (c), (d), (e), and (f) of this and maintain such notices fora period of sixty (60) consecutive days from the date of posting; (h) Notify the Regional Director for the Thirteenth 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, in so far as it alleges that the respondent has discriminated in regard to the hire and tenure of employment or terms or conditions of employment of Jessie Anderson, Alberta McClain, Louise Heard, Fanny Echols, Loviei Lee, Anna Billingsley, Christine Bonhart, Rosetta Devow, Amanda Walker, Bessie Rollins, Catherine Moore, Anna Walker, Mary Sherron, and Ilda Johnson, within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed.