Quality Shirt Manufacturing Co.

In the Matter of QUALITY SHIRT MANUFACTURING COMPANY and UNITED GARMENT WORKERS OF AMERICA, LOCAL No. 181 Case No. C-704.-Decided December 15, 1939 Garment Manufacturing Industry-Interference , Restraint, and Coercion- Company-Dominated Union: stipulation providing for order directing compliance with the Act including withdrawal of recognition of company -dominated union- Discrimination: two employees transferred to positions where substantially less work is available because of union membership and activity and to discourage membership in union ; charges of, dismissed as to four employees-Reinstate- ment Ordered: discriminatorily transferred employees-Back Pay: awarded: from date former position resumed operation after shut-down to date of offer of reinstatement-Unit Appropriate for Collective Bargaining : all employees of the respondent , including operators , finishers , cutters, pressers , and shipping clerks, and excluding company officials , janitors , and clerical employees-Repre- sentatives : majority established through consent election-Collective Bargain- ing: charges of refusal to bargain collectively not sustained. Mr. L. N. D. Wells, Jr., for the Board. Mr. Karl A. Mueller and Mr. Harold E. Mueller, of Fort Worth, Tex., and Mr. Joseph A. Padway, of Washington, D. C., for the United. Samuels, Foster, Brown c6 McGee, of Fort Worth, Tex., by Mr. A. M. Herman and Mr. Sproesser Wynn, for the respondent. Mr. Wendell P. Kay, Jr., of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Garment Workers of America, Local Union No. 181, herein called the United, the National Labor Relations Board, herein called the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued a 'complaint, dated March 8, 1938, against Quality Shirt Manu- facturing Company, Fort Worth, Texas, herein called 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), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. 18 N. L. R. B., No. 53. 352 QUALITY SHIRT MANUFACTURING COMPANY 353 The complaint alleged, in substance, that on or about June 16, 1937, and at all times thereafter, the United represented a majority of the respondent's employees in an appropriate unit; that on or about Sep- tember 20, 1937, and at all times thereafter, the respondent had re- fused and was refusing to bargain collectively with the United; that the respondent had dominated and interfered with the formation of a labor organization known as the Social Benefit Club, herein called the S. B. C., and had contributed support to it; that the respondent discriminated in regard to the hire and tenure of employment of 14 persons named in the complaint, thereby discouraging membership in the United; and that by the foregoing acts and conduct the re- spondent had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent, the S. B. C., and the United. On March 23, 1938, the respondent filed its answer, denying the commission of the unfair labor practices alleged, pleading lack of knowledge as to certain of the facts alleged in the complaint, and making certain allegations by way of an affirmative defense thereto. Pursuant to notice, a hearing was held at Fort Worth, Texas, on March 28, 29, 30, and 31, 1938, before Peter F. Ward, the Trial Exam- iner duly designated by the Board. The Board, the respondent, and the United were represented by counsel and participated in the hear- ing. Full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing on the issues was afforded all the parties. In the course of the hearing, the Trial Examiner made rulings on various motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Exam- iner and finds that no prejudicial errors were committed. The rul- ings are hereby affirmed. At the conclusion of the Board's case, the Board moved for permission to take the deposition of an unavailable witness after the conclusion of the hearing, with leave to the respond- ent to take counter-depositions in rebuttal. This motion was granted by the Trial Examiner and his ruling is hereby affirmed. The deposi- tion and counter-depositions were taken on April 13 and 22, 1938, and constitute a part of the record in this case. On April 23, 1938, the respondent filed objections to certain of the questions and answers forming a portion of the depositions. At the hearing the Board, the respondent, and the United entered into a stipulation under the terms of which the respondent agreed to post a notice to employees relative to the Social Benefit Club, and agreed to the issuance of a consent order by the Board relative to the charge of unfair labor practices under Section 8 (2) of the Act. It was agreed that the stipulation was to be without prejudice to other 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD allegations of the complaint, and without admitting any of them. On April 11, 1938, a new stipulation was. substituted under the same con- ditions, by agreement of the respondent and the Board, as follows : STIPULATION It is hereby stipulated and agreed by the parties to this pro- ceeding, acting by and through their respective attorneys, that the following stipulation shall be entered in and made a part of the record in the above numbered and styled case : It is hereby stipulated by and between counsel for the respec- tive parties herein that the National Labor Relations Board may enter an order in this case to the following effect : I. The respondent, Quality Shirt Manufacturing Company, shall : 1. Cease and desist from in any manner interfering with, re- straining or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed under Section 7 of the Act; 2. Cease and desist from discouraging by any means member- ship in the United Garment Workers of America, Local No. 181, or any local union thereof or any other labor organization of its employees' choosing; 3. Cease and desist from in any manner dominating or inter- fering with the administration of any labor organization of its employees, from contributing financial aid or support to said organization; from recognizing or dealing in any manner with the Social Benefit Club or any group or committee purporting to represent the said organization; or from forming or maintaining any groups or designating any individuals to act as the repre- sentatives of the employees for the purpose of collective bargain- ing respecting any of the terms or conditions of employment. II. The respondent shall take the following affirmative action to effectuate the policies and purposes of the National Labor Re- lations Act : 1. The respondent will withdraw all recognition from the So- cial Benefit Club as the representative of its employees or any of them for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other conditions of employment; 2. The respondent will post notices in conspicuous places about its plant stating that the Social Benefit Club is disestablished as QUALITY SHIRT MANUFACTURING COMPANY 355 the representative of its employees or any of them for the pur- poses of collective bargaining and that the respondent will not extend any recognition to such organization; 3. The respondent will inform all its officials and agents, in- cluding superintendents, foremen, and other supervisory em- ployees that they shall not in any manner approach employees concerning, or discuss with the employees, the question of their labor affiliation or threaten employees in any manner because of their membership in any labor organization. The Board hereby approves the stipulation. On June 13, 1938, the Trial Examiner filed an Intermediate Report, overruling objections to the taking of the depositions and other objec- tions upon which no previous ruling had been made, and finding that the respondent had not engaged in unfair labor practices within the meaning of Section 8 (5) of the Act as alleged in the complaint, but finding that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. The Trial Examiner recommended that the respond- ent be ordered to cease and desist from these unfair labor practices, and to offer reinstatement with back pay to four employees. He also recommended dismissal of the allegations relating to the respondent's refusal to bargain collectively. Because of the above stipulation, the Trial Examiner made no recommendation concerning that portion of the complaint which charged the respondent with the commission of unfair labor practices within the meaning of Section 8 (2) of the Act.. Exceptions to the Intermediate Report were filed thereafter by the respondent. No exceptions to the Intermediate Report were filed by the United. The Board has reviewed the exceptions to the Inter- mediate Report and, save as they are consistent with the findings, conclusions, and order hereinafter set forth, finds them to be without merit. On January 24, 1939, a hearing for the purpose of oral argument was had before the Board at Washington, D. C. The respondent and the United appeared and were represented by counsel. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. The business of the respondent 1 Quality Shirt Manufacturing Company is a Texas corporation, with its offices and plant in Fort Worth, Texas, engaged in the manu- facture, sale, and distribution of men's work shirts, pants, and jack- 1 The findings in this section are based upon a stipulation of facts. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ets. In 1937, 80 per cent of the raw materials used in the plant, valued at approximately $100,000 and consisting of cotton goods materials and thread, were purchased from points outside the State of Texas. Seventy per cent of the finished garments produced by the respondent in 1937, of a total production valued at approximately $175,000, were shipped from Fort Worth to States of the United States other than Texas. The respondent operates its plant on a line system of production, and when operating at capacity employs approximately 125 persons. There are two lines for the production of pants, designated as the No. 1 and No. 2 lines, a shirt line, and a jacket line. The lines operate independently. IT. THE ORGANIZATIONS INVOLVED United Garment Workers of America, Local Union No. 181, is a labor organization, chartered and instituted by the United Garment Workers of America, affiliated with the American Federation of Labor, admitting to membership persons over 16 years old who are employed in the manufacture of men's, boys', and children's ready- to-wear clothing.' Social Benefit Club is an unaffiliated labor organization admitting to membership employees of the respondent. ITT. THE BACKGROUND OF THE UNFAIR LABOR PRACTICES A. The organizing campaign The United began a drive to obtain members among the employees at the respondent's plant in March 1937. The campaign was suc- cessful, and by May of that year a number of the respondent's employees had joined the United. Officers of the respondent were aware of the union activity among the employees. In May the respondent's president, J. P. Hitri, wrote a notice to the employees on a blackboard placed in a prominent position in the workroom, stating that : "This shop is now and always will be an open shop." He testified that he was led to post this notice because so many of the employees had been bothering him with questions as to whether they would have to join the United in order to keep their positions. Although there is some evidence which indicates that several opera- tors were told that the United would obtain a closed shop and that they would have to join in order to retain their positions, Hitri could identify none of the individuals alleged to have questioned him con- 8 These facts were stipulated. QUALITY SHIRT MANUFACT'URIN'G COMPANY 357 cerning the necessity of union membership and none of the witnesses at the hearing testified to having done so.' Sometime early in May, and on or about June 5, 1937, J. P. Hitri made speeches to all employees in the plant. In the first of the two talks Hitri told the girls that he had discovered that food prices had substantially increased. He announced that, because of the in- crease, he was raising wages $1 a week throughout the shop. In the second speech Hitri announced that he was leaving for Italy to visit his mother, urged the girls to cooperate with his son during his absence, pledged himself to do all he could for them in regard to a wage adjustment on his return, and expressed the hope that they would remain the same "happy family" they had always been. Lura Jones, an employee, testified that in one of the talks Hitri stated " ... that he hoped we wouldn't do anything that might cause us all to be laid off." Eula Harter, also an employee, testified that in the latter speech Hitri : ... said that there was some rumors going around, something about the girls all joining the Union, and he said he wanted it to be stopped, because he figured that when he could raise them and pay them more money he would say that himself... . Hitri denied mentioning unions in either talk or having them in mind on either occasion. However, pleas for continued cooperation and for continuance of the "happy family" relationship, and promises to adjust wages at a later time are explicable only in view of the organizing campaign of the United, since there is no evidence in the record of anything other than the United which Hitri might have considered a threat to these conditions. Edith Galloway, the respondent's forelady, had at one time been a member of Local 181 of the United but had resigned prior to her employment by the respondent. She was not satisfied with her ex- perience in the United because "every time I went there was a fight and a fuss and knock-down and drag out." Eula Harter testified, and we find, that Galloway advised her she would have more work if she voted against the United in the consent election hereinafter dis- cussed. Galloway did not deny making this statement. B. The consent election Direct negotiations between the United and the respondent began early in June 1937, when Walter B. Sherman, general representative $ Compare platter of Roberti Brothers, Inc. and Furniture Workers Union, Local 1561, 8 N. L. R. B. 925, where similar notices were posted during the union campaign, and Fanny Farmer Candy Shops, Inc. and Committee for Industrial Organization, 10 N. L. R. B. 288, where a similar statement was made in a speech to the employees. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the United in Fort Worth, approached Hitri with a request to negotiate a union contract. Sherman and Hitri agreed to hold a consent election, under Board auspices, to determine whether the United was authorized to represent the respondent's employees. On June 10, 1937, J. P. Hitri left Fort Worth for a visit in Italy, leaving his son, J. R. Hitri, to conduct the business in his absence. On June 17, 1937, J. R. Hitri signed an agreement for the election, to be held the following day. In the election, held as scheduled on June 18, 1937, there were 94 valid ballots cast, of which 69 were for the United and 25 opposed. IV. THE UNFAIR LABOR PRACTICES A. Discrimination in regard to hire and tenure of employment The complaint alleged discriminatory discharges' or lay-offs of 14 members of the United between May 21 and October 27, 1937. The respondent's answer admits certain of the discharges and lay-off s, but denies any discrimination against members of the United. At the hearing, upon a motion by the United, the complaint was amended to withdraw and dismiss without prejudice all charges relating to May McCammont, Sadie Jackson, Essie Pettegrew, Carrie Pollard, Ruth Boren, Opal Dunton, Velma Jones, and Callie Johnson 4 The respondent originally conducted its manufacturing operations on a piece-work basis. In,order to meet competition, a line system of production was introduced shortly after passage of the National Industrial Recovery Act. In June 1936, Edith Galloway was em- ployed as forelady and was given complete powers of supervision over work on the lines. J. P. Hitri gave Galloway instructions to weed out slow operators and to speed up production. Of the two lines engaged in the production of pants, the No. 1 line is given preference in the work, and the No. 2 line works only when there is more work to be done than the No. 1 line can handle. Both these lines suspended operations on May 21,.1937. At the time of the hearing the No. 1 line had been recalled to work, but the No. 2 line had not. Dessie Cargill and Leroy Pernell. The Trial Examiner found that the evidence did not sustain the allegations of the complaint in respect to these two employees. We concur in his finding and recommenda- tion that they be dismissed. Since no exception has been taken to the Intermediate Report in this respect, we will not discuss the alleged discrimination in detail. 41n the complaint McCammont was spelled McCammant , Pettegrew was spelled Petti- grew, and Carrie was spelled Carey. QUALITY SHIRT MANUFAC'TURIN'G COMPANY 359 We find that the respondent has not, by discrimination in regard to the hire or tenure of employment of Dessie Cargill or Leroy Pernell, encouraged or discouraged membership in any labor organization. Lura Jones had worked for the respondent somewhat intermittently over the past 5 years, on both the No . 1 and No. 2 pants lines. She was employed on the No. 1 line from the fall of 1936 until May 21, 1937. Jones joined the United in March and took an active part in its mem- bership campaign during the ensuing months. When queried as to their reasons for joining the United , a number of witnesses attributed their action to Jones' persuasive powers. She had a conversation with Galloway in May 1937 , in which Galloway complained because Jones had not invited her to attend meetings of the United. Galloway did not deny the conversation . Jones was laid off on May 21, 1937, when the plant shut down . She was recalled to work in September, and was discharged by Galloway on October 27, 1937. Although Jones testified that she had never been charged with inefficiency prior to her discharge, Galloway stated that she had been reprimanded on several occasions for poor work . A number of witnesses testified that, on the occasion of her discharge , Jones permitted the material on which she was working to gather in such a manner that it was impossible for other operators properly to complete the garments. Galloway warned Jones several times on the day of her discharge and told Jones, "Your work over there is awful ," before taking her off her machine. Under all the circumstances , we find that her discharge was not caused by her union membership and activities. We find that the respondent did not discourage membership in a labor organization by discrimination in'regard to the hire or tenure of employment of Lura Jones. Inez McAfee (Mrs. Rice ) had been employed by the respondent for the major part of the past 14 years. She became a member of the United early in May 1937 . McAfee was employed on the No. 1 line when it resumed operation in the fall of 1937 until October 27, on which date she was discharged by Galloway. The evidence shows that for about 3 weeks prior to her discharge, McAfee had been having trouble with her machine. Certain parts of the machine came loose several times each day and had to be tightened by the machinist. When the parts were loose the machine did not operate properly and stitches would be skipped on garments passing through it. Walsh, the machinist, changed the machines on which McAfee was working on three occasions. The same trouble occurred on each machine. Walsh testified that, in his opinion, someone was tampering with the machine. On the day of her discharge, McAfee permitted between 150 and 192 pairs of pants to pass through her machine bearing skipped stitches before one of the operators further down the line discovered the condi- 283029-41-vol. 18-24 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion and brought it to Galloway's attention. Galloway removed McAfee from the line, had- her repair the damaged garments, and then discharged her. Galloway testified that the reason for the discharge was not the continued machine trouble, but that McAfee had permitted so many garments to go through the machine without noticing their condition. Maggie Phillips, who replaced McAfee on the No. 1 line, stated that she had had some similar difficulty but had never allowed more than 10 garments to' go through before noticing it. J. P. Hitri testified to former difficulty with McAfee's work. While the penalty of discharge appears rather harsh in this case, since the employee's difficulty was caused by machine trouble, the source of which is obscure, the evidence does not convince us that her discharge was motivated by her union membership or activity. We find that the respondent did not discourage membership in a labor organization by discriminating in regard to the hire or tenure of employment of Inez McAfee. Goldie Washington had been employed by the respondent since Sep- tember 1935. She joined the United in March 1937, was active in soliciting membership, and served as a member of the United's organ- izing committee. Washington was one of the union representatives at the consent election, and has since been elected to the position of union trustee. About May 7, 1937, Washington was transferred from the operation which she had been performing on the No. 1 line to a different opera- tion on the same line. At the same time, Lola McGaughey was trans- ferred to the No. 2 line. About May 14, 1937, a week before both lines closed down on May 21, Washington was transferred to the No. 2 line by Mrs. Galloway. Galloway had never previously evidenced any displeasure with her except at the time of the playsuit incident, herein- after discussed, and gave no reason for the transfer other than that she wanted her "to work over there for a day." When Washington, a few days later, asked if Galloway wished her to go back to the No. 1 line, Galloway again told her, "No, I want you to work over here for today." The No. 2 line has not been recalled to work since the May 21 shut- down. When the plant shut down Galloway told the girls that they would be recalled when they were needed. Although the No. 1 line has resumed production, the respondent has never offered to restore Wash- ington to her position on it. The respondent maintains that Washington is a member of the No. 2 line and will be called back when there is work available for that line. Galloway, who was solely responsible for Washington's transfer, ad- vanced several reasons for her action, none of which is convincing in the light of all the evidence. QUALITY S'HIItT M.ANUI'ACTURING COMPANY 361 The first reason which Galloway offered for shifting Washington was that she slowed up the line by continuous conversations with Lola McGaughey. Galloway stated "the line girl complained to me con- tinually ... about the work, especially on that side . . ." Her sec- ond reason was that Washington had done personal sewing during working hours. As her final reason, Galloway asserted : I taken them [Washington and McGaughey] off of Line 1 because I had two girls that came to work for me and had worked for me before, I knew what kind of operators they were, and I replaced them and put those girls on Line 1 in Goldie's and Lola's places.5 As to the respondent's first contention, Washington and McGaughey were originally in consecutive positions on the No. 1 line. Several of the respondent's witnesses testified that the two operators frequently engaged in conversation. The respondent attempted to demonstrate that these conversations slowed down the work by establishing that production on the line has substantially increased since Washington and McGaughey Were transferred. No records were put in evidence to substantiate this alleged increase, but Galloway testified that pro- duction on the No. 1 line was around 800 garments a day at the time of Washington's transfer and that it had increased to approximately 900 garments a day at the time of the hearing. Washington denied participating in any conversations which would impede work on the line. As for the alleged increase in production, Galloway testified on cross-examination that when she was first placed in charge of the lines at the respondent's plant in June 1936, production on the No. 1 line was between 600 and 700 garments a day, that "shortly" afterward it increased to 800 garments, and had gradually increased since that time. If there was a marked in- crease in production on the No. 1 line after the transfer of Wash- ington and McGaughey, as Galloway first stated, it is not shown that the increase was in any way due to the transfer. In order to establish this essential connecting link the evidence should demon- state that other conditions affecting production on the line during the period prior to the transfer were the same or similar as those prevailing thereafter when the production allegedly increased. Such evidence is wholly lacking. In fact, Mrs. Galloway stated that she was still in the process of "changing up" the line : 5 Several witnesses for the respondent testified that Washington had impeded work on the line by calling out to other operators to "slow down ." Washington admitted that she had called "slow down" upon occasion , but alleged that this was a common practice of many operators . Neva Pointer, a witness for the respondent , corroborated Washington's allegation that other operators, who were still employed at the plant, had also called "slow down." Regardless of what weight might otherwise attach to this testimony, Galloway, who was solely responsible for Washington 's transfer , did not state that it was one of her reasons for transferring Washington , and her failure to advance it as a reason for her action eliminates the possibility of justifying the transfer on this ground. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Well, some operators are better on some operations than they are on others. When I find out what operation they can do, there is a lot of times in different make of pants that come through I have to make some changes, which I do. Galloway admitted that Washington had cooperated in making pos- sible the increase in production from 600 to 800 garments a day. Whether or not the conversations which may have occurred between Washington and McGaughey actually slowed up production on the No. 1 line, the facts indicate that this was not the reason for Wash- ington's transfer to Line 2 on May 14. Whatever conversations occurred were effectively halted when Galloway transferred Wash- ington to a different position on the No. 1 line on May 7, moving McGaughey to the No. 2 line at about the same time. Galloway's own testimony demonstrated that the alleged conversations actually played no part in the decision to transfer Washington.6 Although Galloway alleged that the line girl "complained .. . continually" about slowness on that part of the line where Washing- ton performed her work, Marie Sherman, the line girl on the No. 1 line, testified concerning only one occasion upon which she com- plained of Washington and McGaughey. Galloway's testimony identifies this incident, hereinafter discussed, as the occasion when the playsuit was made. Sherman admitted that Sally Akin, a witness for the respondent, had held up work on two or three occasions, and that she had reported another operator, Gertie May Stiles, for being behind in her work shortly before reporting Washington and McGaughey: Neither Akin nor Stiles has been transferred or discharged. With regard to the second ground advanced by Galloway as justi- fying this demotion, the evidence indicates that, in March 1937, Washington and McGaughey did some sewing on a child's playsuit at the plant. Galloway testified that the line girl informed her of some delay on the line, that she investigated and found Washington and McGaughey with the garment, that she informed them they were not to do personal sewing on company time, but that, Neverthe- less, buttonholes had been put in the playsuit before closing time that evening. The evidence indicates that the buttonholes were put' in by the buttonhole operator. All operators are allowed to do per- sonal sewing on the machines before and after working hours and during recess periods. This appears to have been, at worst, a minor 6 Galloway testified, on cross-examination : Q. When you transferred Lola [McGaughey ] to Line No. 2 you got Lola and Goldie [Washington ] separated, didn't you? A. I did. Q. Why did you transfer Goldie? A. Because I wanted her on Line 2. QUALITY SHIRT MANUFACTURING COMPANY 363 infraction of the plant rules, and no disciplinary action was taken at the time of its occurrence. As for Galloway's last reason, neither Pauline Poindexter, who replaced Washington in her original position on the No. 1 line, nor Inez Jackson, who apparently replaced McGaughey, had ever been previously employed by the respondent.? The fact that Washington *vas, at the time of her transfer to the No. 2 line, taking an active part in the United's organizing campaign, to which Galloway was antagonistic, combined with the contempora- neous anti-union steps taken by the respondent and the inconsistent and insubstantial reasons advanced for that transfer leads us to con- clude that the respondent transferred Washington to the No. 2 line because of her union membership and activity. Galloway was ad- mittedly aware that the No. 2 line operates only when there is more than enough work for the No. 1 line. As we have previously noted, the No. 1 line has been recalled to work since the May 21 shut-down, but the No. 2 line has not. Washington has never been offered re- instatement to the position on the No. 1 line to which she is entitled," and thus has been unlawfully deprived of the work she would nor- mally have received except for the respondent's discrimination against her. We find that by transferring Washington to the No. 2 line.on May 14, 1937, because of her union membership and activities the respond- ent has discriminated in regard to hire and tenure of employment, thereby discouraging membership in the United and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Lola McGaughey had been employed by the respondent for ap- proximately 4 years preceding her transfer. She joined the United in April 1937, and thereafter took an active part in the union campaign by soliciting members among the respondent's employees. On or about May 7, 1937, Galloway transferred McGaughey from the No. 1 line to the No. 2 line. She has not been recalled to work since both lines closed down on May 21, 1937. The respondent's -first con- tentions in regard to the transfer of McGaughey are similar to those discussed above in relation to the transfer of Goldie Washington. McGaughey is alleged to have slowed down the line by conversations with Washington. The respondent's contention that an increase in 7 As Galloway stated, Poindexter is the operator who actually supplanted Washington on the No. 1 line. However, Anna Mae Heffner replaced her in her last position on that line. Heffner has been employed by the respondent for several years. She joined the United in March 1937 ; but resigned prior to the election in June and later was active in the S. B. C. 8In September 1937 Washington was told at a United meeting that Mrs. Galloway had wanted her at work the previous week. She telephoned Galloway to inquire, but was not offered work . The work which had been available was "extra " and was not line work. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production on the line since her transfer proves that McGaughey had slowed up production must be considered in the light of Gal- loway's admission that McGaughey was on the line when production first increased from 600 pairs a day to around 800, and that she had helped to make this increase possible. Furthermore, as we noted above, there is no proof of substantial similarity in other conditions on the line following her transfer which would make this alleged increase in production significant. Evidence that McGaughey was a willing and efficient worker is found in the fact that she sometimes aided Sally Akin with her work in addition to performing her own tasks. While the alleged conversations between Washington and McGaughey may have afforded a problem, we do not think that they were a factor in the transfer of McGaughey any more than in the case of Washington. At the same time at which Galloway transferred McGaughey to the No. 2 line she moved Washington to a different position on the No. 1 line. If putting a halt to the con- versations had been Galloway's only motive, McGaughey's transfer was totally unnecessary, since it is evident that Washington's trans- fer to a different position on the No. 1 line was sufficient to bring about the desired result. An additional factor is present in the case of McGaughey which was not,present in relation to the discharge of Washington. Anna Mae Heffner, Marie Ashley, and Galloway, all witnesses for the re- spondent, testified that McGaughey had frequently been late to work. Galloway stated that she had repeatedly warned McGaughey about her lateness. None of these witnesses, however, identified the dates upon which the lateness occurred. McGaughey testified : Well, in the early spring, about three times I was late. I won't say positive how many times. But at the time I was laid off I had not had no complaint, for I don't know how long back. Q. And when was the early spring you were late to work? A. Like in the beginning of the spring, or in January or February. This testimony establishes, at least approximately, the period in which the tardiness took place. Apparently McGaughey did not repeat this offense after she had been warned, and 2 months inter- vened between the instances of lateness and her transfer. Marie Ashley, who was in charge of the time clock at the plant, testified that McGaughey rode to work with three other operators who were also late on occasion. The three other operators have not been disciplined and are still employed by the respondent, In the light QUALITY SHIRT MANUFACTURING COMPANY 365 of these facts, McGaughey's lateness quite evidently did not, as a matter of fact, figure in her transfer.' McGaughey was taking an active part in the United's membership campaign to which Galloway was openly opposed; the reasons .ad- vanced by the respondent for her transfer are lacking in substance and bear the marks of afterthought. These facts, taken in con- junction with the respondent's anti-union attitude and actions at that time, convince us that the respondent transferred her to the No. 2 line because of her union membership and activities. As we noted above, Galloway knew that the No. 2 line operates only when there is more work than the No. 1 line can handle. McGaughey has never been offered reinstatement to the position on the No. 1 line to which she is entitled,'° although the No. 1 line has resumed operations while the No. 2 line has not. We find that the respondent, by transferring McGaughey to the No. 2 line on May 7, 1937, because of her union membership and activities, has discriminated in regard to hire and tenure of employ- ment, thereby discouraging membership in the United and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The alleged refusal to bargain collectively 1. The appropriate unit The complaint alleges that production employees, including oper- ators, finishers, cutters, pressers, and shipping clerks, and excluding company officials, janitors, and clerical employees, constitute an appropriate bargaining unit within the meaning of Section 9 (b) of the Act. The respondent's answer states that it is without knowledge in this particular. However, in agreeing to the consent election of June 18, 1937, the respondent had agreed to recognize the United, if victorious, as representing employees in substantially 9 As in the case of Washington, several witnesses for the respondent testified that McGaughey had called out to other operators to "slow down ." Witnesses for the respond- ent also alleged that McGaughey was often late in returning to her machine after rest periods. Galloway, who had sole responsibility for McGaughey's transfer, did not advance either of these considerations as a reason for her transfer , thus negativing the possibility of resting the transfer on these grounds . See footnote 5. 10 Frances Self, a witness for the respondent , testified that "in the early fall " Galloway asked her to tell McGaughey to return to work , and that she gave the message to Mc- Gaughey's husband. When McGaughey went to the plant to inquire for work in Septem- ber or October 1937, apparently in response to this message, Galloway told her that she had needed her for 2 months but that she now had someone in her place . Although Galloway had McGaughey's address and had often sent messages to McGaughey through one Carl Thompson prior to May 21, 1937, McGaughey never received any message from Galloway after the shut-down other than the message delivered by Self. Whether or not Galloway actually made an effort during the summer or fall to recall McGaughey, the work was "extra" and was in no sense an offer of reinstatement to her position on the No. 1 line. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the same unit as alleged in the complaint. No evidence was intro- duced to controvert the propriety of the unit alleged. We have often found similar units appropriate.!! We find that all the respondent's employees, including operators, finishers, cutters, pressers, and shipping clerks, and excluding com- pany officials, janitors, and clerical employees, constitute a unit ap- propriate for the purposes of collective bargaining and that said unit will insure to the respondent's employees the full benefit of their right to self-organization and collective bargaining and otherwise effectuate the policies of the Act. 2. Representation by the United of a majority in the appropriate unit The complaint alleged that the majority of the employees in the unit had designated the United Garment Workers of America as their representative for the purpose of collective bargaining on or about June 18, 1937, and thereafter up to the date of the issuance of the complaint. In its answer the respondent admitted that a majority of the employees had so designated the United on or about the date alleged, but maintained that it was without present knowledge as to the right of the United to represent the employees. That the United was the representative of a substantial majority of the re- spondent's employees on June 18, 1937, is clear. In the consent election of that date,. 69 votes were cast for the United and 25 against, out of a total of 94 valid ballots. Although there is some indication of defection from the United on the part of some of its members during the organizing campaign of the S. B. C., the evidence does not establish that the United ever lost the majority which it possessed in June. Furthermore, in view of the stipulation relating to the S. B. C., these defections from the United could not operate to destroy its majority. We find, therefore, that on or about June 18, 1937, and at all times thereafter, the United was the duly desig- nated representative of the majority of the employees in the appro- priate unit, and, pursuant to Section 9 (a) of the Act, was the exclu- sive representative of all the employees in such unit for the pur- poses of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The alleged refusal to bargain Shortly after the consent election, of June 18, Walter B. Sherman, general representative of the United in the Fort Worth area, pre- "See, for example, Matter of Hirsch Shirt Corporation and United Garment tiVorkers of America, 12 N. L. R. B. 553. QUALITY SHIRT MANUFACTURING COMPANY 367 sented a proposed contract calling for an increase in the wage scale to J. R. Hitri, representing the respondent. Hitri strenuously opposed any upward revision of the respondent's wage scale but, on August 3, 1937, wrote Sherman a letter setting forth certain counterproposals. On August 31, 1937, following an all-day confer- ence, the respondent signed a contract with the United recognizing it as the sole collective bargaining agency for the production em- ployees, establishing the hours of work, and providing for the orderly adjustment of disputes. The fourth paragraph of this con- tract is as follows : Both parties hereto agree that on or before September 20th, 1937, they will enter into conference for the purpose of fixing the wage rates for the employees of the party of the first part .. . September 20 was chosen as the date to resume negotiations because it was believed that J. P. Hitri would return from his European visit by that date. Although Hitri did not, because of illness, return to Fort Worth until October 11, 1937, the evidence does not dstablish any attempts. by the United to obtain a conference for collective bar- gaining on September 20 or thereafter. In view of these circumstances, we find that the record does not support the allegations of the complaint that the respondent refused to bargain collectively with.the United. Accordingly, the allegations of the complaint that the respondent has engaged in unfair labor prac- tices within the meaning of Section 8 (5) of the Act will be dismissed. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent- set forth in Section IV 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 and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY As we have found that the respondent discriminated in regard to the hire and tenure of employment of Goldie Washington and Lola McGaughey, we shall order the respondent to offer them immediate reinstatement to their former or substantially equivalent positions. Since each of these employees has suffered a loss in pay from the time the No. 1 line resumed operation, we shall order the respondent to make them whole for any loss of pay they have suffered by reason of their respective transfers, by payment to each of them of a sum of 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD money equal to the amount which she normally would have earned as wages from the date the No. 1 line resumed operation after the shut- down on May 21, 1937, to the date the respondent offers her reinstate- ment, less her net earnings 12 during said period. We shall also enter an order as provided in the stipulation set forth in the Statement of the Case above.13 ' Upon the basis of the foregoing findings of fact and upon the entire record of the proceedings here, the Board makes the following : CONCLUSIONS OF LAW 1. United Garment Workers of America, Local Union No. 181, and Social Benefit Club, are labor organizations within the meaning of Section 2 (5) of the Act. 2. All the respondent's employees including operators, finishers, cut- ters, pressers, and shipping clerks, and excluding company officials, janitors, and clerical employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. United Garment Workers of America, Local Union No. 181, is and has been at all times since June 18, 1937, the exclusive represent- ative of all employees in such unit for the purposes of collective bar- gaining within the meaning of Section 9 (a) of the Act. 4. By discriminating in regard to the hire and tenure and terms and conditions of employment of Goldie Washington and Lola McGaughey and thereby discouraging membership in the United Garment Workers of America, Local Union No. 181, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the respond- ent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 12 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 elsewhere than for the respondent , which would not have been incurred but for his un- lawful 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 $590, 8 N. L. It. 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. 18 Since the respondent has already complied with that portion of the stipulated order requiring the posting of notices relative to the S. B. C., we will omit this provision from the present order. QUALITY SHIRT MANUFACTURING COMPANY 369 7. The respondent has not refused to bargain collectively with the representatives of its employees, thereby engaging in an unfair labor practice, within the meaning of Section 8 (5) of the Act. 8. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to Dessie Cargill, Leroy Pernell, Lura Jones, and Inez McAfee. ORDER Upon the basis of the above findings of fact, stipulation, 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, Quality Shirt Manufacturing Company, Fort Worth, Texas, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of any labor organization of its employees, from contributing financial aid or support to said organization, from recognizing or dealing in any manner with the Social Benefit Club or any group or committee purporting to represent the said organization, or from forming or maintaining any groups or designating any individuals to act as the representatives of the employees for the purposes of collective bargaining respecting any of the terms or conditions of employment; (b) Discouraging membership in United Garment Workers of America, Local No. 181, or in any local union thereof, or in any other labor organization of its employees, by discharging, laying off, or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed under Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the-Act: (a) Withdraw all recognition from the Social Benefit Club as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employ- ment; 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Inform all its officials and agents, including superintendents, foremen, and other supervisory employees, that they shall not in any manner approach employees concerning, or discuss with the em- ployees, the question of their labor affiliation or threaten employees in any manner because of their membership in any labor organiza- tion ; (c) Offer to Goldie Washington and Lola McGaughey immediate and full reinstatement, without prejudice to their seniority and other rights and privileges, to their former or substantially equivalent positions on the No. 1 line; (d) Make whole Goldie Washington and Lola McGaughey for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them, respectively, of a sum of money equal to that which she normally would have earned as wages from the date on which the No. 1 line resumed operation after the shut-down on May 21, 1937, until the date of the offer of reinstatement to her, less the amount, if any, of her net earnings during said period, deducting, however, from the amount otherwise due to each of the said employees, monies received by said employee 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 governments which supplied the funds for said work-relief projects; (e) Immediately post notices in conspicuous places in the respond- ent's plant at Fort Worth, Texas, and maintain such notices for a period of at least sixty (60) consecutive days, stating that the respondent will cease and desist in the manner set forth in 1 (a), (b), and (c), that the respondent's employees are free to become or remain members of United Garment Workers of America, Local No. 181, that the respondent will not discriminate against any employee because of membership or activity in that organization, and that the respondent will take the affirmative action set forth in 2 (a), (b), (c)., and (d) of this Order; (f) Notify the Regional Director for the Sixteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it is, dis- missed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3), of the Act in regard to Dessie Cargill, Leroy Pernell, Lura Jones, and Inez McAfee ; and that the complaint be, and it is, dismissed without prejudice in so far as it alleges that the respondent has engaged in QUALITY SHIRT MANUFACTURING COMPANY 371 unfair labor practices within the meaning of Section 8 (3) of the Act in regard to May McCammont, Sadie Jackson, Essie Pettegrew, Carrie Pollard, Ruth Boren, Opal Dunton, Velma Jones, and Callie Johnson; and that the complaint be, and it is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.