Blossom Products Corp.

In the. Matter of BLOSSOM PRODUCTS CORPORATION and INTERNATIONAL LADIES' GARMENT WORKERS' UNION Case No. C-1088.-Decided February 10, 1940 Garment Manufacturing Industry/-Interference, Restraint, and Coercion: anti-union statements of executives and supervisory employees ; distribution of anti-union literature to employees ; ordered to cease and desist from such practices-Company-Donvinated Union : coincident with organization of union respondent sponsored formation of grievance committee ; select group, including anti-union statements by supervisory employees-Compau.y-Dominated Union: shut-down threatened in event of union success , and preference for "inside" organization expressed ; anti-union employees permitted to shut off power dur- ing working hours and summon employees to organizational meetings held outside plant ; employees paid for time spent at organizational meetings ; recognition as exclusive bargaining agency and check-off granted without verification of mem- bership claim; withdrawal of recognition and disestablishment, ordered-Con- tract: abrogation of, ordered-Check-off : respondent ordered to reimburse em- plbyees ` for' dices checked off-Discrimination: discharge and refusal to reinstate two employees , allegations of, dismissed. Mr. Weldon P. Monson and Mr. Samuel G. Zack, for the Board. Mr. David Getz, of Allentown, Pa., and Groman d Rapaport, by Mr. Julius M. Rapaport, of Allentown, Pa., for the respondent. Mr. Elias Lieberman, of New York City, for the Union. Mr. William B. Butz, of Allentown, Pa., for the B. W. O. Mr. Harold M. Weston, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by the International Ladies' Garment Workers' Union, herein called the Union, the Na- tional Labor Relations Board, herein called the Board, by the Regional Director for the. Fourth Region (Philadelphia, Pennsyl- vania), issued its complaint, dated September 22, 1938, against Blos- som Products Corporation, Allentown, Pennsylvania, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices, affecting commerce, within the 20 N. L. R. B., No. 35. 335 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by a notice of hearing, were duly served upon the respondent and upon the Union. Regarding the unfair labor practices, the complaint alleged, in substance, that the respondent dominated, interfered with, and con- tributed support to the formation and administration of a labor organization of its employees known as the Blossom Workers' Organ- ization, hereinafter referred to as the B. W. 0.; that the respondent discharged and refused to reinstate James Ftiscar and Mary Donchez for the reason that they joined or assisted the Union and engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection; that the respondent disparaged to its employees the aims, purposes, and character of the Union and the members or organizers thereof; and that by the aforesaid acts and by other acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The time for filing an answer having .been extended by the Regional Director, the respondent filed its answer admitting the allegations of the complaint with respect to the nature of its business, but denying the averments of unfair labor practices and alleging affirmatively that Ftiscar and Donchez were laid off because of lack of work and were not reinstated because they.were inefficient and incapable employees.' Pursuant to notice, a hearing was held in Allentown, Pennsylvania, on October 6, 7, 14, and 11, 1938, before I. L. Broadwin, the Trial Examiner duly designated_by . the Board. The Board and the. re- spondent were represented by counsel, and were afforded full oppor- tunity to be heard, to examine and cross:examine witnesses, and to introduce evidence bearing upon the issues. At the opening of the hearing, and again at the close of the Board's case, the B. W. O. applied for leave to intervene. Both applications were denied by the Trial Examiner. At the close of the Board's case and at the close of the hearing, counsel for the respondent moved to dismiss the complaint, on the ground that.the evidence failed to substantiate the allegations of the complaint. The Trial Examiner reserved ruling on .the,,,motions ..to dismiss ,. and,, except in so, far as said motions related to the allegedly discriminatory discharge of Sf iry Donchez, denied them. in his Intermediate Report. During the course of the hearing the Trial Examiner made several rulings on other 'At the hearing, the respondent's answer was amended to Include a further affirmative allegation that Donchez ' was not reinstated for the reason that while she was in the respondent's employ she "frequently and habitually used profane language." BLOSSOM PRODUOTS. CORPORATION , 337 motions and on objections to the admission of evidence. We have reviewed the rulings of the Trial Examiner and find that no preju- dicial errors were committed. The rulings are hereby affirmed. On or about December' 10, 1938, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the respondent and the Union. The Trial Examiner found that the respolident.had engaged Jii and. was egging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from the unfair labor practices, that it offer to James Ftiscar immediate and full reinstatement to his former position with back pay, that it withdraw all recognition from the B. W. O. as representative of its employees, and that it take certain other appropriate. action to remedy the situation brought about by its unfair labor practices. The Trial Examiner found that the respondent had not engaged in unfair labor practices within the meaning of the Act by discharging and refusing to employ Mary Donchez. and, accordingly, recommended that. the complaint he - dis- missed with respect to' her. A . ... On December 27, 1938, the respondent filed its exceptions to the Intermediate Report, and on January 10, 1939, requested oral argu- ment. On October 5, 1939, the Union filed a brief in support of the Intermediate Report, and on October 12, 1939, the respondent filed a brief in support of its exceptions. Purstiant to notice, a hearing was held before the Board on October 12, 1939, in Washington, D. C., for the purpose of oral argument. The respondent was represented by counsel and participated in the argument. At the argument, counsel for the B. W. O. appeared and filed a motion that the proceedings be remanded to the Trial Ex- aminer in order that testimony of the B. W. O. be taken and made a part of the record. The motion is .2 The Board has considered. the exceptions, to the Intermediate Re= port- and- the-briefs filed by the parties: For the reasons. set forth below, we sustain the exceptions to the findings of the Trial Ex- aminer that the respondent engaged in an unfair labor practice within the meaning of Section 8 (3) of the Act with respect to James Ftiscar. We find that all the other exceptions are without merit in so far as they are inconsistent with the findings, conclusions, and order set forth below. 2 We note that while counsel for the B. W. 0. appears to have been present throughout the hearing before the Trial Examiner, he did not in his statement before the Board specify any evidence which the B. W. 0. might wish to offer in the event that the record were reopened, and the motion filed at the oral argument likewise contains no specification. 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Blossom Products Corporati.oii, a Pennsylvania corporation with its principal office and place of business located in the city of Allen- town, Pennsylvania, is engaged in the manufacture of undergarments and outer wear. The raw materials used by the respondent in manufacturing its, products consist of rayon yarn, cotton yarn, cotton-wool yarn, rayon cloth, cotton cloth, elastic, lace, buttons, thread, labels, cellophane, dyes, and other chemicals. In 1937 such raw materials used amounted to approximately $601,540, of which approximately 92 per cent were shipped to the respondent's plant from States other than the State of Pennsylvania. During the same period the re- spondent manufactured approximately 683,613 dozen garments,. hav- ing a value of approximately $1;231,14125,, in excess of„88. per cent of which were shipped by the respondent to points outside the State of Pennsylvania.s At the time of the hearing the respondent employed 418 persons.4 H. THE ORGANIZATIONS INVOLVED International Ladies' Garment Workers' Union is a labor organi- zation; admitting to its membership employees of the respondent, who do not have the power to hire or discharge. Blossom Workers' Organization is a labor organization, admitting to membership employees of the respondent'5 ]IT. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; interference with, domina- tion of, and support given to the B. V. 0. 1. Chronological statement Early in September 1937 the Union began a campaign to organize the respondent's employees. Union organizers distributed litera- ture and solicited employees in front of the plant and several organi- zational meetings were held. The first of these meetings was held on 8 Counsel for the respondent, in describing its business , stated at the oral argument, "They serve the entire country as well as European markets" ; and In its brief, the respondent further stated that it "serves several large chain store organizations." The number of persons employed, however, varies considerably . See Section III B, infra. 5Irma Moyer, vice president, and later president , of the B. W. 0., testified that no foremen or "bosses of any kind " are admitted to membership in the B. W. O. BLOSSOM PRODUCTS CORPORATION 339 September 20, 1937.° I. Lawrence Lesavoy, the respondent's presi- dent, testified that at about this date he became aware of the Union's activities; that he immediately consulted David Getz, the respond- ent's attorney; and that the latter "suggested that a notice be sent to the entire plant that we were not taking one position or the other." - On September 21, 1937, the respondent distributed a notice to employees that the Act "gives you EMPLOYEES the following right : 1. To. be free from joining any union whatsoever. 2. To organize your own independent union, free of any inter- ference by us or any other organization. 3. To organize or affiliate yourselves with the recognized in- dustrial unions such as the C. I. O. and A. F. of L." The notice also declared that the respondent stood "ready to pro- tect every employee who chooses his right under the law not to join a unionlj and assured them that the respondent would.. "at no, time permit any union to force us [the respondent] to discharge employees who have not joined a union." The notice further stated that the State of Pennsylvania had recently enacted a law "whereby the employees of [sic] the State are protected in regards to working hours," and that under the statute a 44-hour week would be inaugu- rated by the respondent on December 1, 1937.7 We are unable to credit the respondent's explanation for the distribution of the notice. The Union was the only labor organiza- tion seeking to organize the respondent's employees, and there is no evidence that employees at that time desired to form or join any other labor organization or that the respondent believed that they had any such wish. Under these circumstances, the respondent. obviously had no occasion to notify employees that it was "not taking one position or the other." Moreover, by the notice the respondent took a "position." The reference to the Pennsylvania statutes could be understood by the respondent's employees only as it declaration that the respondent would in no event agree to shorter working hours than the maximum hours provided by law, or that it was unnecessary to join the Union in order to obtain better hours, or both." Whether, and to what extent, such changes as hours and wages shall be demanded by a labor organization is, of course, a ° About six meetings were held in September and October. ' The notice concluded with the statement that as soon as they were obtained, copies of" the Act "describing your [the employees '] rights will be issued to you." The respondent did not offer any evidence that copies of the Act were ever distributed. 8 The 44-hour statute referred to in the notice as "recently passed" was enacted on July 2, 1934 . The respondent offered no explanation for referring to it in a notice issued 21/. months later and dealing with labor organizations. . 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter for it to determine upon a consideration of the probable, effects of such demands and the likelihood of success in winning them. While an employer is not required by the Act to agree thereto; his declaration, in advance of any demands, that he will not, or that organization is unnecessary to secure them, is plainly obstructive of the exercise of the right guaranteed by the Act. Particularly is such action by an employer disruptive of self-organization where, as in the instant case, it occurs in the. early stages of an orgaii,izli tional campaign.9 Moreover, as we have recently pointed out, such statements are not only counsels of futility but, where issued by an employer to persons who are dependent upon it for their continued employment and livelihood, are unmistakably declarations of hostility toward self-organization.10 We find that the notice was intended to and had the effect of restraining and coercing the respondent's employees from affiliating with or continuing their membership in the Union and from other- wise exercising their rights guaranteed in Section 7 of the Act. We have referred above to the fact that when the notice was. distributed the Union was the only labor organization seeking- to organize the respondent's employees and that there is no evidence that at that time any employees desired to form or join any other labor organization. Nevertheless, by the end of the month or, 'at the latest, early iu October, the B. W. O. had been organized .and had held its first organizational meeting. Whether the organization of the B. W. O. is to be explained in part by the notice issued by the respondent to its employees that they had the right "To organize [their] own independent union free of interference by us or any other organization," we need not decide, although succeeding events indicate that the notice had been intended to suggest the formation of such an organization. The record discloses other and more direct evidence of participation by the respondent in the formation of the B. W. O. Within a day or two' after the first meeting of the Union,- held. on September 21, 1937, and again about 4 days later, meetings were held in Lesavoy's office between the respondent and several employees. The evidence is in dispute as to the origin of the meetings, the reason for the participation of the particular employees, and what occurred at the meetings. B What we have said above with respect to the reference in the notice to the 44-hour week is applicable also to the anticipatory statement therein that the respondent would not sign a closed-shop agreement. This statement was plainly calculated to hinder the Union . Cf. Adams Brothers Manifold Printing Company, doing business as Adams Brothers galeebook Com,pa'ny and Topeka Typographical Union, No. 121, affiliated with the American Federation of Labor, 17 N. L. R. B. 974. 10 Matter of Yale & Towne Mfg. Co. and Amalgamated Ass'n of Iron, Steel and Tin Workers of North America, Lodge No. 1647, Through the Steel Workers Organizing Commit- tee, affiliated with the Committee for Industrial Organization, 17 N. L. R. B. 666. BLOSSOM 'PRODUCTS CO•RPOIIATIOIc 341 Lester Breisch, a member of the Union, testified that the first meet- ing came about in the following malmer : A few minutes before the lunch hour on September 21, 1937, Harry Rosen, the plant superin- tendent, approached Breisch, who had been very friendly with Lesavoy,]' and suggested that lie "get a committee" of employees to present any wage and hour grievances to Lesavoy before going ahead with. an `outside union." Breisch then spoke to Daubenspeck, an- other member of the Union, whose testimony corroborated Breisch's account. Both discussed Rosen's suggestion with some of the "boys" 12 at noon, and it was decided to "lay off it couple of days .. . and go up to see Mr. Lesavoy." When Daubenspeck and Breisch in- formed Rosen that they were willing to meet with Lesavoy, Rosen sug- gested that they "get some girls" as members of the committee. Breisch and Daubenspeck then approached Mary Donchez. While they were discussingr the matter with Donchez, the foreman- asked "what it was all about," and, when told, suggested that Dorothy Bentz be included in the committee. The suggestion was accepted, and Breisch informed Rosen that the committee was ready to see Lesavoy. The committee which met with Rosen and Lesavoy in the latter's office consisted of Breisch, Daubenspeck, Bentz, and Neva Saffieri. According to Breisch and Daubenspeck, Lesavoy made some wage adjustments, which he explained ^; ere temporary, and stated that further adjustments would be made later when the 44-hour week was introduced. Breisch and Da.ubenspeck testified that when they reported the results of the conference to the employees in the cutting room, the men were dissatisfied and drew up demands for a 44-hour week, instead of it 54-hour week, with no reduction in pay, stating that they would produce as much in the shorter period; that the demands were. submitted to Rosen ; that when they heard that the demands had been rejected by Lesavoy, they requested a conference with Lesavoy; and that on or about September 24, 1937, they went to Lesavoy's office for a statement as to why the demands had been refused. According to Daubenspeck, when Breisch and Daubenspeck entered Lesavoy's office on the second visit, they found Bentz and two other women employees, Irma Moyer and Rose Brown, already present. Also present at this meeting were Lesavoy, Harry Rosen, Getz, Frank Tiso, the cutting-room foreman, and Herman Rosen, the respondent's accountant. Breisch and Daubenspeck testified that at this second meeting Lesavoy stated that he could not grant any further raises at this time since the respondent might have to deal 11 It appears from Rreisch 's uneontroverted testimony that Lesavoy and he were "good friends up until the time . .', that this union was started," and that when Lesavoy first came to Allentown he used lireisch 's automobile and both "went out" together. 12 Elsewhere identified as a `group of boys in the cutting department." As late as October 1937 there were approximately 27 employees in that department. 11 The foreman was not identified by name. 283031-41-23 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with a union in the future and find itself in the position where addi- tional raises would be demanded which it would not be able to afford. Daubenspeck testified that Breisch and he urged that the men in the cutting room probably would not join the Union if their demands were granted, but that Lesavoy adhered to his refusal. Breisch testified that at the first conference Lesavoy declared:: that "it would be no trouble at all" for the employees to have their own committee to adjust grievances with him "without having an outsider there to do it" for them. Daubenspeck stated that on this occasion Lesavoy said, "it would be nice if we formed our own union." Breisch and Daubenspeck also testified to other anti -union state- ments by Lesavoy which they alleged were made during discussion in which David Getz, the respondent's attorney , participated. While it clearly appears from Daubenspeck 's testimony that Getz was present at the second meeting,14 neither he nor Breisch was positive that Getz attended both meetings . In any event, according to Daubenspeck, When we first come in Mr. Getz [the respondent 's attorney] was talking to Mr. Lesavoy and they were discussing his rights as to what he would have to do to recognize unions and so forth, talking about the Wagner Labor Act. Well, then, after we talked to Mr. Lesavoy , why, Mr. Getz suggested that it would be a good thing instead of forming an outside union , why didn't we form our own union and in general things was said about the Union, that it was a bunch of bums and loafers, that we couldn't never get no more out of them than-ourselves, out of our own union , that we would save money and general things like that. Mr. Lesavoy said that he was thinking out loud and didn't want to, didn't really mean to say these things but he was thinking out loud, but he too thought it was a good idea . . . to form (your) own union. Daubenspeck testified that the reference to the union organizers as "bums and loafers" was made by either Lesavoy or Getz. Breisch testified that Getz referred to the organizers as "hoodlums and things like that." According to Breisch, Getz also stated that since the local silk-mill workers had been organized by the C. I. 0. they had no work ; that the same thing might happen to the respondent's employees if they had an "outside union"; and that the money paid to the C. I. 0. "only goes to the big shots," who "have big cars." Daubenspeck further testified that during the second meeting Her- man Rosen explained how "a ' union of their own" could be ,formed, x+ As we point out below, the respondent concedes that Getz was present at the second conference. BLOSSOM PRODUCTS 'CORPORATION 343 and. Breisch testified . thata.t this meeting Lesavoy and Herman Rosen as well as Harry Rosen, suggested the formation of an "inside union." :_:Breisch also testified that following this discussion Lesavoy declared, "Well now, boys, it is up to you just which one. If you wanted to have an outside union you would have it and if you don't avant to have it, it is all up to us." Both Da.ubenspeck and Breisch testified that the women employees participated in the discussion of an inside union at the meeting on September 24. According to Daubenspeck, the women asked Getz. if he would represent them "if they would form a union," but Getz: replied that he could not do so because of his relation to the respond- ent, and "told them they would have to see, another lawyer."' Daubenspeck also testified that the women declared that if the men "wanted to form an outside union" and went on strike, the women "would come down and take (their) jobs," 15 and that at this point he and Breisch left the meeting. Harry Rosen testified that the demand for a 44-hour week had been presented to him ; he did not deny that he had previously approached Breisch and suggested that the latter form a committee to see Lesavoy, about grievances.;- nor did he offer any account of what occurred during the two conferences in Lesavoy's office. He denied that he had ever proposed the formation of an "inside union" or that he had heard Lesavoy, Getz, or. Herman Rosen make such a proposal. Similar general denials were also made by Bentz, who was present at both meetings, and Herman Rosen and Tiso, who were present at the second meeting; none of them, however, gave any testimony as to what did occur in the meetings. Moyer, who was present at the second meeting, professed to be entirely unable to recall what occurred other than that there was "a commotion." Getz was not called as a witness," nor was the foreman, who, accord- "That such a threat was made was not disputed . Brown, who was called as a witness by the respondent, testified that she made such a statement after Breisch had said "the boys wanted to go on strike." 16 At the hearing before the Trial Examiner , the respondent was represented by Julius M. Rapaport, then Getz 's law partner . Getz stated , at the oral argument before the Board, on October 12, 1939 , that he had attended the hearing for a short period but asserted that he "was engaged in another trial at the time and was unable to appear," and orally re- quested that the record be reopened in order that he might deny the testimony of Breisclr and Daubenspeck with respect to the incidents in Lesavoy' s office in September 1937. Na such application had been previously made, although the Trial Examiner had found in his Intermediate Report , issued on or about December 1.0, 1938, that the facts were as testified by Breisch and Daubenspeck . Moreover, no application was made to the Trial Examiner for an adjournment in order that Getz's testimony might be introduced . Further- more, not only was the hearing closed on October 11, 1938 , after a session lasting little more than an hour , but on October 10, 1938 , when the respondent began its proof, an evening session was held from 7 until 10 p. in. After due consideration , the request to, reopen the record is hereby denied. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to Breisch, suggested the inclusion of Bentz in the committee which attended the first meeting. Lesavoy testified that the first meeting was held in his office after he was informed by Harry Rosen that a committee wished to see him, and that Breisch opened the meeting with the statement that he and Daubenspeck "represented a group of boys in the Cutting De- partment.... and they wanted to organize a union of their own or that they wanted to join the C. I. O. Union 17 and that if I would give them a general increase they would not do anything." Lesavoy also testified that a discussion ensued between Breisch arid Dauben- speck and the women employees "as to whether they were to join one union or the other," that he listened to the discussion for a time and then left the room with the statement that his attorney had told him that he "wasn't to be one way or the other," and that he would return when they had "finished their discussion about the union." According to Lesavoy, when he returned to his office, Breisch and Daubenspeck had gone. Lesavoy testified that at the second meeting a demand was made "to increase salaries of the boys and girls in the plant"; that he stated he would take the matter up with Harry Rosen ; and that he then left the meeting. With respect to both meetings, Lesavoy denied that he, or any other representative of the respondent, had made the anti-union statements attributed to them by Breisch and Daubenspeck. He did not, however, offer any expla- nation for the presence of Getz, who, he admitted, attended the second meeting, nor did he state what part, if any, Getz had taken in the meeting. Although Lesavoy testified that a dispute arose among the em- ployees at the first meeting "as to whether they were to join one union or the other," it is clear that he was in error. Lesavoy also testified that Moyer was then present, and it is clear that she did not attend the first meeting in Lesavoy's office. Moreover, Moyer testi- fied that "the commotion" at the second meeting was the result of our organization and the C. I. 0. organization" being present. Moyer also testified that prior to the second meeting she and Bentz had decided to oppose the Union, and Brown, who was also present at the second meeting, testified that she together with Moyer and Bentz composed a group which was determined to "buck" the Union. Brown further testified that it was at the second meeting that she declared that the girls "don't want to have anything to do with the C. I. 0." and that they would take over the men's jobs if the latter' went on strike.18 17 At this time the Union was affiliated with the Committee for Industrial Organization (now the Congress of Industrial Organizations). 18 Brown also contradicted Lesavoy by her testimony that at this meeting the demand was made for a 44-hour week and was rejected . According to her, Breisch then stated tli,at the men in the cutting room might strike if their demands were not granted. BLOSSOM PRODUCTS CORPORATTON 345 Bentz gave no explanation for her attendance at the meetings in Lesavoy's office. While Brown and Moyer testified that they attended the second meeting as members of the committee together with Breisch and Daubenspeck , Moyer, in an earlier appearance as a wit- ness, stated that she did not recall how she had happened to be pres- ent, and neither she nor Brown testified that they had in any way supported Breisch or Daubenspeck at the meeting. We find that the testimony of Breisch and Daubenspeck with re- spect to the meetings in Lesavoy's office on September 21 and 24, 1937, is substantially correct. Their account as to the origin of the meet- ings and what occurred therein is complete and persuasive; it is, moreover , consonant with the anti -union notice distributed by the respondent on September 21, and with the respondent 's conduct with respect to the B . W. O. which came into existence shortly thereafter: We are also impressed by the fact that many of the circumstantial details of the testimony of Breisch and Daubenspeck are undenied, and that the respondent's account of the meetings is on its face in- complete and is in many. respects self-contradictory. We conclude that the respondent suggested the formation of a, grievance commit tee 19 rather than resort to an "outside h pion," indicated its preference for an "inside union;" disparaged the organizers and officials of the Union, and declared that the organization of the Union would result in the loss of work. Despite the fact that the respondent also de- clared that it was for the employees to determine their, own course of action , it is manifest that the respondent 's hostility to the Union and its wishes as to the form and extent of self -organization of its employees 'were unequivocally expressed . Thereby, the respondent interfered with, restrained , and coerced its employees in the right guaranteed them by Section 7 of the Act. As to have stated above, we do not credit the respondent 's claim that Bentz, Brown, and Moyer attended the meeting in Lesavoy's office on September 24, 1937 , as fellow members of a committee which included Breisch and Daubenspeck , and we find that they were pres- ent when the latter came to the office. In the absence of any plausible explanation for their presence , the inference might well be drawn that Bentz, Brown, and Moyer were asked to attend because of their opposition to the- Union. In any event, according to Moyer, prior to September 24, the question of forniiiig another labor organization had not gone beyond the, state of "talk.". On the other hand, by the conclusion of the meeting Bentz, Brown, and Moyer had made clear to the respondent their antagonism to the Union and their willing- ness and, perhaps , intention to form another union. 19 As we have seen, the respondent not only requested Breisch to form such a committee, but also secured the inclusion of Bentz as a member. o 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Within approximately a week after the second conference in Lesavoy's office, the first of three meetings that were held to organize the B. W. O. took place; 20 the second was held late in October, and the third on or about November 4, 1937. At the second meeting members were signed up, and at the third meeting officers were elected.21 Before each meeting Moyer turned off the power operat- ing the machines and told the girls in the sewing room to go to the particular hall where the meeting was to be held. On at least one of these occasions Bentz and Brown assisted Moyer in shutting off the power. The meetings were held during working houi s acid lasted 2 or 3 hours. The respondent raised no objection to the shutting off of the power on these occasions, although it previously had never been shut off before the close of the working day except in the event of an emergency. Nor did the respondent object to the employees leaving their work, although as many as 200 to 250 walked out of the plant to attend the meetings. On the contrary, the respondent paid the employees for the time spent at the meetings. Lesavoy testified that he knew of only the first B. W. O. meeting, that he thought it was held by the C. I. 0., that he was advised by Getz to pay everyone so that there would be no "repercussion," and that he "left the matter to the superintendent of the plant." Harry Rosen, the superintend.- ent, did not testify as to the B. W. O. meetings, nor did David Lesavoy and Charles Lesavoy, who were the foremen in Moyer's department and were, Moyer admitted, and we find, always present in the room.22 Lesavoy testified that on the occasion of the first B. W. O. meet- ing, David Lesavoy made a "complaint" to him "that some of the girls in the plant shut off the power and walked out of the plant." He asserted that he was not present at the plant when the latter two meetings occurred. However, as appears from his testimony,. which we have quoted above, he left "the matter" to Harry Roseil, and. we have no doubt, and find, that the latter, who was, at least in Lesavoy's- absence, in complete charge of the plant, was informed as to the second and third meetings. Lesavoy admitted that David Lesavoy reported to him that Moyer had shut off the power for a meeting. He claimed, however, that David Lesavoy did not inform him of Moyer's part "until a later date," ,and that David Lesavoy then gave him the "impression" 20 Lesavoy placed the date of the first meeting as during the latter part of September or the early part of October. 21 Moyer, elected vice president at this meeting , had been elected president of the B. W. O. at the time of the hearing. 22 Indeed , Moyer asserted that on the occasion of the third meeting David Lesavoy asked her if there was a strike when she shut off the power. BLOSSOM 'PRODUCTS CO'RPORAT'ION 347 that Moyer "was doing it for the C. I. 0." Lesavoy's testimony is plainly not entitled to credence. By his own admission he knew of the first shut-down and walk-out not later than the following pay day, and the record fails to disclose any occasion for David Lesavoy .advising him at "a later date" of the fact that Moyer had played a leading part in the incident. Lesavoy did not explain in what 'manner David Lesavoy gave him the "impression" that Moyer was acting on behalf of the C. I. O. We find that the respondent knew of Moyer's leading part in the B. W. O. meetings, and in view of our findings that at the meeting in Lesavoy's office on September 24, both Lesavoy and Harry Rosen had suggested the formation of an "inside union" and had found Moyer, Bentz, and Brown in favor of such an organization and opposed to the Union, we conclude that the respondent was well aware of the purpose of the B. W. O. meetings.22 At some time between November 4 and 15, 1937, Lesavoy and Getz attended a conference with the representatives of the B. W. O. in the office of William Butz, the B. W. O. attorney. 24 Lesavoy testified that while in Philadelphia he received a long-distance call from Harry Rosen, advising him that Butz, whom Lesavoy had allegedly never met before, wanted to see him in Butz's office. Lesavoy tes- tified that he thereupon left Philadelphia and went to Butz's office in Allentown. Lesavoy testified that at this conference Butz stated that he was representing the B. W. O. and submitted a list of what purported to be the signatures of 85 per cent of the respondent's employees. While Lesavoy testified that he showed this list of signatures to Rosen, it does not appear that Rosen attended this meeting, and there is no testimony that the respondent made any effort to verify the signatures on the list. Nevertheless, at this conference Lesavoy agreed to recognize the B. W. O. as collective bargaining agent and to check off B. W. O. dues. Following this meeting, mimeographed slips authorizing the check-off of B. W. O. dues ' by the respondent were supplied by Harry Rosen and were distributed to the employees during working hours. On November 16, 1937, the respondent began to deduct dues from the pay of B. W. O. members and to turn over money so deducted to the secre- tary of the B. W. O. - In the latter part of October or early in November 1937, Lesavoy called Breisch and Daubenspeck to his office. According to Breisch 23 In its brief the respondent seeks to attach some significance to the testimony of Datibenspeck that at the second B. W . O. meeting he spoke against an "inside union." The respondent, however, makes no claim , and there is no evidence that Daubenspeck's action came to its attention. 24 The record does not disclose whether any other officers of the B. W. O . besides Ken- ueth Brey, who had been elected president at the November 4 meeting , were present. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Daubenspeck, Lesavoy told them that he hoped that they would "play ball" with him and that lie thought that the company union had gained momentum, and that the "union trouble was over."' Although Lesavoy denied making any statement to any employee in regard to an "inside" union, he did not, deny calling Breisch and Daubenspeck to his office at this time, or state what had occurred at the meeting. In the light of the entire record, we find Lesavoy's general denial unconvincing. 2. Conclusions As we have stated above, the respondent, by distributing certain notices to its employees on September 21, 1937, interfered with, re- strained, and coerced them in the exercise of their rights guaranteed by Section 7 of the Act. As we have further stated above, the respondent again interfered with, restrained, and coerced its em- ployees by its action leading up to and during the conferences in Lesavoy's office in September 1937. On the latter occasion the respondent not only sought to obstruct the organization of the Union by disparaging its organizers and officials and by threatening that affiliation of employees therewith would result in the loss of jobs, but affirmatively suggested and proposed the formation of an "inside union." As the respondent knew, the appeal, in the case of Bentz, Brown, and Moyer, fell upon receptive ears. Whether or not those employees might, in any event, have decided to form an "inside union," the respondent by its statements clearly gave impetus to and encouraged them to take such a step. Indeed, the - record offers no other plausible explanation for the action of Bentz, Brown, and Moyer in shutting off the power during working hours arid calling the employees from the plant to attend the organizational meetings of the B. W. O. Certainly the respondent's conduct with respect to these incidents-its failure even to demur, and its pay- ment for the time spent at the meetings-clearly confirmed to the leaders of the "inside union" the respondent's approval of, and willingness to support, their actions. And to other employees the respondent's conduct was a patent sponsorship of the "inside union." That the respondent thereby contributed financial and other support to the B. W. 0., and interfered with its formation, is clear. In according recognition to the B. W. O. and agreeing to the check-off of dues, the respondent made no effort to verify the mem- bership claims of the B. W. 0., or to inquire as to overlapping mem- bership in the Union which it knew had been organizing its employees for 2 months. Even apart from Lesavoy's statement to Breisch and Daubenspeck about this time, it is clear that in granting recognition and agreeing to the check-off, the respondent acted to BLOSSOM PRODUCTS CORPORATION 349 end "union trouble" by placing upon a stable basis the B. W. O. which it had caused to be organized.25 By granting recognition and agree- ing to the check-off, both of which were continued until the time of the hearing, the respondent lent prestige to its creature, assisted the B. W. O. financially, and interfered with and supported the adminis- tration thereof. We find that the respondent has interfered with and dominated the formation and achninistration of the 13. W. O. and has contributed financial and other support to it. We find also that the respondent has thereby interfered with, restrained, and coerced its employees in the rights guaranteed to them by Section 7 of the Act. B. The d iseharges Maey Donchez. As we have stated above, the Trial Examiner found that the respondent had not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act by discharging and refusing to reemploy Donchez, and, accordingly, recourinended that the complaint be dismissed with respect to Donchez. We have re- viewed the record and we conclude that the finding is correct, but deem it unnecessary to set forth the evidence since the Union filed no exceptions to the Trial Examiner's findings as to Donchez. Ac- cordingly, we shall dismiss the allegations of the complaint with respect to Donchez. James Ft,seai' was einplpyed by the respondent as a spreader in the cutting department from January 1934 until June 1936, when lie was advanced to stock clerk, which position he held until he was laid off on November 16, 1937. In January 1937 the respondent inaugu- rated a perpetual.-inventory system and placed Ftiscar in charge of it. Ftiscar admitted that in March 1937 and again in August 1937, Nathan Miller, the respondent's office manager, called his attention to his failure to record items received, and that in October 1937, Herman Rosen complained of a similar error. I erman Rosen testified that mistakes occurred monthly in the per- petual inventory from the time the system was instituted until Ftiscar was- laid off. He testified that the records were inaccurate, revealed mistakes in addition and substraction, and were not up to date. Rosen also testified that he tried to help Ftiscar and called his at- tention to his errors upon four different occasions between January and-October 1937. Miller testified that Rosen complained to him six or seven times about Ftiscar's mistakes in maintaining the perpetual inventory and. pursuant to Rosen's advice, Miller inspected the rec- ords and explained Ftiscar's errors to him upon an equal number of 26 By this statement the respondent also expressed its opposition to the Union and thereby interfered with, -restrained , and coerced its employees in the right of self-organization. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occasions. According to Miller, Ftiscar admitted that he was not good at figures and that he sometimes failed to include items received in the inventory. Lesavoy testified that in March 1937, Herman Rosen complained that the figures in the perpetual inventory were never correct, that he had repeatedly spoken to Ftiscar without success, and that Herman Rosen insisted that another person must be assigned to the inventory if the system were to be retained. Lesavoy testified that he thereupon called Ftiscar into his office and explained that he had just talked with Herman Rosen, that Ftiscar then cried and pleaded for another chance, and that he decided to give him an opportunity to improve his work. Lesavoy further testified that in August 1937 he received a complaint from Harry Rosen, the plant superintendent, that Ftiscar was not capable of adding a column of figures and that Rosen therefore felt that it was a mistake to continue him in that position; that he told Harry Rosen that it was up to him to do as he wished ; and that Rosen replied that he would "talk to him [Ftiscar] and tolerate him a little longer and then he would see what lie would do with him,"" Both Lesavoy and Harry Rosen testified that the latter made the ,fi"nalr decision to lay off Ftiscar.26 Late in October, 3 or 4 weeks before Ftiscar was laid off, David Rosen was employed by the respondent and assigned to assist Ftiscar in his work, and, when Ftiscar was laid off, was assigned his job. Lesavoy testified that David Rosen had been employed because his cousin, Herman Rosen, the respondent's accountant, had recommended him as accurate, skillful, and "very good at figures." While, according to Ftiscar, his errors in keeping the perpetual inventory were neither serious nor frequent, we are impressed by the fact that the testimony of the respondent's witnesses was given in persuasive detail, by the failure of Ftiscar to deny Lesavoy's testi- mony that as early as March 1937 he had told Ftiscar that he had been advised by Herman Rosen that Ftiscar was unable to handle the work, and by the failure of Ftiscar to deny that he had admitted to Miller that he was no good at figures. Under these circumstances we find that the evidence does not support the conclusion that David Rosen's employment, and his subsequent replacement of Ftiscar, were. due to the fact that Ftiscar, who had joined the Union in September 1937, had thereafter solicited employees for membership in front of the respondent's offices during the noon hour 27 and at the employees' homes at night. 26 Harry Rosen also testified in considerable detail as to Ftiscar's unsatisfactory work. 27 On at least one occasion , Ftiscar was observed in these noontime activities by Fred Rosen, the foreman of the trimming department , and Eli Lesavoy, a supervisory employee in the cutting department. BLOSSOM PRODUCTS OORPORATION 351 The respondent contends that Ftiscar was laid off as stock clerk because he had proved to be inefficient in such employment, and further, that he was not then retransferred to or later rehired in the cutting department. because of lack of work. The record shows that a serious depression occurred in the respondent's business, beginning in October 1937 and lasting up to the time of the hearing in October 1938. At the beginning of this period the respondent employed 502 persons;, 101 were laid off in November, and another 204 in December 1937; and by October 1938 employment had increased from this low point of 197 to only 351 employees. In the cutting department the number of employees was reduced from 27 in October to 2 or 3 in December 1937, and at the time of the hearing that department consisted of only 15 employees, _all of whom were capable of doing, two jobs, both cutting and spreading. While in the past Ftiscar had been retransferred temporarily to the cutting department as a spreader, when work was slack in the stockroom, it does not appear that he was able to do cut- ting.. Lesavoy testified that, in the interest of efficiency, only those employees who could do both jobs had been recalled; no evidence to the contrary was introduced ; and Ftiscar himself admitted that Lesavoy told him that he was being laid off because work was slack, but that he was a good spreader and he would be recalled as soon as work was available. We. find that the respondent has not engaged in an unfair labor practice within the meaning of Section 8 (3) of the Act with respect to James Ftiscar, and we will accordingly dismiss the complaint as to -him. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in- Section III, occurring in connection with the operations of the respondent set forth 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 It is essential in order to effectuate the purposes and policies of the Act that the respondent be ordered to cease and desist ' from certain activities and practices in which we have found it to have engaged and, in aid of such order and as a means for removing and avoiding the consequences of such activities and practices, that it be directed to take certain affirmative action, more particularly described below. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have found that the respondent has dominated and interfered with the formation and administration of the B. W. 0. and con- tributed support to it. The respondent must cease and desist from, such practices. Moreover, the effects and consequences of the re- spondent's domination, interference with, and support of the B. W. 0., as well as continued recognition by the respondent of the B. W. 0. as the bargaining representative of its employees, constitute a continuing obstacle to the free exercise by its employees of their right to self-organization and to bargain collectively through repre- sentatives of their own choosing. The B. W. 0. has been utilized by the respondent as an instrumentality to defeat the rights of its employees under the Act. Because of the respondent's illegal conduct with relation to it, the B. W. 0. is incapable of serving the respond- ent's employees as their genuine collective bargaining agency. Accordingly, we will order the respondent to disestablish and with- draw all recognition from the B. W. 0. as the representative of its employees for the purposes of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of employment. We have found that in November 1937 the respondent entered into an agreement with the B. W. 0. and that the contractual relationship existing thereunder has been a means whereby the respondent utilized an employer-dominated labor organization to frustrate self-organi- zation among and defeat collective bargaining by its employees. Under these circumstances, any continuation, renewal, or modifica- tion of the agreement between the respondent and the B. W. 0. would perpetuate the forces which have deprived employees of the rights guaranteed to them by the Act and would render ineffectual other portions of our remedial order. We shall therefore direct the re- spondent to cease giving effect to any contract existing, or claimed by it to exist, between it and the B. W. 0., or to any modifications or extensions thereof. We have further found that the check-off of dues from members' wages was accorded the B. IN. 0. for the purposes of facilitating the securing of membership therein and stabilizing the B. W. 0. It is apparent that an authorization for the check-off of dues owed to an organization dominated and supported by the respondent was not a voluntary act of the employee signing such authorization, but repre- sented a further aspect of the employee's compulsion to abandon his rights under the Act and to support the organization which the re- spondent had fostered for a purpose proscribed by the Act. Under these circumstances we will restore the states quo by ordering the BLOSSOM 'PRODUCTS CORPORATION 353 respondent to reimburse its employees for all amounts deducted from their wages as dues for the B. W. O. since November 15, 1937.28 We have found that the respondent expressed hostility to the affili- ation of its employees with any outside organization . We find that the effects and consequences of that interference , restraint, and coer- cion constitute a further continuing obstacle to the free exercise of the right of employees to sell-organization and to bargain collec- tively through representatives of their own choosing. Accordingly, in order to effectuate the policies of the Act, we will order the re- spondent to include in the notices to be posted in its plant a state- ment that employees are free to become or remain members of the International Ladies' Garment Workers' Union , or any other organization. By engaging in unfair labor practices , the respondent has made serious incursions upon the rights guaranteed to its employees by the Act. In order to insure the full freedom of the respondent's em- ployees -to exercise those rights , it is essential that they be informed that the respondent will no longer engage in its unfair labor prac- tices and that it will act in conformity to the provisions of our Order. We shall therefore direct the respondent to post notices stating that it will cease and desist from certain conduct specified in our Order, and that it will take the affirmative action therein required. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAw 1. International Ladies' Garment Workers' Union and Blossom Workers' Organization are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of Blossom Workers' Organization and by contributing sup- port thereto, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. 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 prac- tices, within the meaning of Section 8 (1) of the Act. Matter of The Western Union Telegraph Coo pony, .4 Corporation and Atnerican Com- munications Association. 17 N. L. R. B. 34; Matter of Helier Brothers Company of Newconaerstown and International Brotherhood of Blacksmiths, Drop Forgers and Helper,, 7 N. L. R. B. 646. 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor-practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. , ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, Blossom Products Corporation, Allentown, Pennsylvania, 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 Blossom Workers' Organization or with the formation or administration of any other labor organization of its employees, and from contributing support to Blossom Workers' Organization or to any other labor organization of its employees; (b) Giving effect to its agreement with Blossom Workers' Or= ganization or to any extension or renewal thereof, or to any successor agreement with Blossom Workers' Organization which may now be in effect; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Blossom Workers' Organiza- tion as a representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other-conditions of employment, and completely disestablish Blossom Workers' Organi- zation as such representative; (b) Reimburse each of its employees whose dues to Blossom Workers' Organization were checked off, for the amounts thus deducted from their wages since November 15, 1937; (c) Post notices immediately in conspicuous places in its plant and maintain such notices for a period of at least sixty (60) con- secutive days, stating that the respondent will cease and desist in the manner set forth in 1 (a), (b), and (c) and that it will take the BLOSSOM PRODUCTS OORPORATION 355 affirmative action set forth in 2 (a) and (b) of this Order, and that the respondent's employees are free to remain or become members of the International Ladies' Garment Workers' Union or any other organization ; (d) Notify the Regional Director for the Fourth Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint, 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, be, and it hereby is, dismissed.