Riverside Manufacturing Co.

In. the Matter of RIVERSIDE MANUFACTURING COMPANY and AMALGAM- ATED CLOTHING WORKERS -OF AMERICA Cases Nos. C-995 and R-996-Decided February 12, 1940 Garment Manufacturing Industry-Interference , Restraint, and Coercion.- anti-union statements ; participation by supervisory employees in campaign for withdrawals from union ; circulation of loyalty petition in plant during working hours-Unit Appropriate for Collective Bargaining: production and maintenance employees exclusive of supervisory and clerical employees; no controversy as to- Representatives : proof of choice : signed acceptances of membership and author- izations to act as collective bargaining representative ; majority status of union not affected by withdrawals caused by unfair labor practices of employer- Collective Bargaining : dilatory and evasive tactics to discredit union under pretext of deliberating acceptance of union's proposal of check of cards by repre- sentative of Board or consent election to prove majority ; employer's attempt to destroy union majority and evade obligation to bargain with it; order to bargain collectively based on majority at date of refusal to bargain-Unfair Labor Practice : violation of Section 8 (1) as constituting violation of Sec- tion 8 (5)-Discrimination : discharges, for union membership and activity; charges of discrimination, not sustained as to three employees ; employer re- sponsible for eviction of union employees ; refusal to grant protection to evicted union employees if they returned to plant; discharges because of testimony at hearing, found as to all but one of evicted employees ; charges of, not sustained as to one employee-Reinstatement Ordered-Back Pay: awarded to discharged and evicted employees-Remedial Order : special form of : employer ordered to afford all its employees reasonable protection from physical assaults or threats of physical violence in plant ; instruct all its employees that physical assaults or threats of physical violence will not be permitted in plant-Investigation of Representatives : petition for, dismissed in view of order to bargain. Mr. Alexander E. Wilson, Jr., for the Board. Mr. W. Gordon McKelvey, of Nashville, Tenn., and Mr. J. C. Gib- son and Mr. Waldo DeLoache, of Moultrie, Ga., for the respondent. Mr. Clyde M. Mills, of Atlanta, Ga., for the Union. Mr. Albert J. Hoban, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On September 2, 1937, Amalgamated Clothing Workers of America, herein called the Union, filed with the Regional Director for the Tenth 20 N. L. R. B., No. 38. 394 RIVERSIDE MANU'FACTURINICr- COMPANY 395, Region (Atlanta, Georgia) charges alleging that Riverside Manu- facturing Company, Moultrie, Georgia, herein called the respondent, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and Section 2 (6)• and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On September 15, 1937, the Union filed with said Regional Director a petition alleging that a question affecting com- merce had arisen concerning the representation of employees of the respondent, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the Act. On June 29, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. At the same time the Board, acting pursuant to Article III, Section 10 (c) (2), and Article IT, Section 37 (b), of said Rules and Regulations, ordered that the representation proceed- ings and the proceedings with respect to the alleged unfair labor practices be consolidated for the purposes of hearing. On July 30, 1938, upon amended charges duly filed by the Union, the Board, by the Regional Director, issued its complaint alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. With respect to the unfair labor practices the complaint alleged, in substance, (1) that the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act; (2) that the respondent discharged and refused to reinstate the following employees because of their membership in the Union and because they engaged in concerted activities for the pur- poses of collective bargaining: C. M. Bradley on January 12, 1938; Frank Mercer on March 24, 1938; and Winona Hooks on June 3, 1938; (3) that the respondent caused the termination of the services of Annie Page, one of its employees, and refused to reinstate said Annie Page and Emma Tuttle, another of its employees, because they joined the Union and engaged in concerted activities for the purposes of collective bargaining; (4) that on August 28, 1937, and at all times thereafter, the respondent refused to bargain with the Union as the representative of employees of the respondent in an appropriate unit, although the Union had been designated as their representative by a majority of such employees. Copies of the complaint, the petition, and accompanying notices of hearing were duly served upon the Union and the respondent. On 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 4, 1938, upon request of the respondent, the Regional Director extended the time for filing an answer. On August 8, 1938, the re- spondent filed its answer in which it denied that it had engaged in the alleged unfair labor practices. Pursuant to the notices, a hearing was held in Moultrie, Georgia, from August 8 to 16, 1938, before Gustaf B. Erickson, the Trial Examiner duly designated by the Board. The Board and the re- spondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties.. At the beginning of the hearing the respondent moved to dismiss the complaint on the ground that the Board lacked jurisdiction in the matter. The Trial Examiner reserved his ruling on the motion. Dur- ing the first day of the hearing, E. C. Long, M. V. McHargue, and -L. E. Watkins, employees of the respondent, filed a petition to inter- vene in the proceedings. The Trial Examiner dismissed the petition and his ruling is hereby affirmed. At the close of the hearing, counsel -for the respondent renewed its motion to dismiss and made other motions on which the Trial Examiner reserved ruling. Thereafter the respondent duly filed a brief which was considered by the Trial Examiner. During the course of the hearing, from August 8 to 16, 1938, the Trial, Examiner made numerous rulings on other motions and on objections to the admission of evidence. The Board has re- viewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On October 19, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, in which he denied the motions of the respondent on which he had reserved ruling, except the motion to dismiss the complaint in so far as it alleged that the respondent had engaged in unfair labor practices .within the meaning of Section 8 (3) of the Act with respect to Annie Page and Emma Tuttle. His rulings are hereby affirmed. He found that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act, and accordingly recommended that the respondent cease and desist from such unfair labor practices, that it reinstate with back pay C. M. Bradley, Frank Mercer, and Winona Hooks, and that, upon request, it bargain collectively with the Union as the exclusive representative of the respondent's employees in the .unit found to be appropriate. He also recommended that the com- plaint be dismissed as to Annie Page and Emma Tuttle. On Novem- ber 4, 1938, the respondent filed exceptions to the Intermediate Report 'together with a request for oral argument. Notices of hearing before the Board for the purposes of oral argument were issued on November RIVERS'ID'E MANUF'ACTURING COMPANY 397 21, 1938, and duly served upon the parties. On December 14, 1938,. the hearing was postponed indefinitely. On December 17, 1938, the Union, pursuant to Section 10 (b) of_ the Act, filed a fifth amended charge. On January 10, 1939,- the Board authorized the issuance by the Regional Director of all amend- ment to the complaint issued on July 30, 1938,' and,, pursuant to Article II, Section. 38 (c), of said Rules and Regulations-Series 1, as, amended, ordered the record in the proceedings reopened and a. further hearing held for the purposes of taking further evidence per- taining to the new matter alleged in the amended charge., On Jan- uary 14, 1939, the Board, by the Regional Director, issued its amend ment to complaint alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 .(1), (3), and (4) and Section 2 (6) and (7) of the Act. With respect to the unfair labor practices the amendment to complaint alleged in substance that on or about October 26, 1938, the respond- ent urged its lion-union employees to evict all union employees from the plant; that Irene Richards, Thelma Hancock, Mecie Childs 2 Mae Rentz, Eunice Ellis, Maggie Price, Lela Hodges, Flora Wilson, and Cora McMullin, employees of the respondent, were thus evicted; and that the respondent on or about said date discharged and at all times thereafter refused to reinstate the afore-mentioned employees because they had joined and assisted the Union and engaged in con- certed activities for the purposes of collective bargaining and because they had testified before the Trial Examiner during the hearing held. from August 8 to 16, 1938. On. January 23, 1939, the respondent filed its answer in which it denied that it had engaged in the unfair labor practices alleged in the amendment to complaint. During the hearing the respondent filed an amendment to its answer. - Pursuant to notices duly served upon the parties, a further hear- ing was held in Moultrie, Georgia, from February 20 to 23, 1939, before Thomas S. Wilson, the Trial Examiner duly designated by the Board: The, Board and the respondent were represented 'by counsel, participated in the hearing, and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to. introduce evidence bearing on the issues. At the conclusion of the. Board's case the respondent moved to dismiss the amendment to com- plaint.- The Trial Examiner denied the motion. At the close of the i On December 20, 1938 , the Regional Director issued an amended complaint to which the respondent duly filed its answer . In its order of January 10, 1939, the Board authorized the Regional Director to withdraw the amended' complaint. On January 13, 1939, acting pursuant to said order, the Regional Director withdrew the,amended complaint. _ a Mrs. Mecie Childs was married ' while the proceedings were pending. In the record of the first hearing and in the amendment to complaint she is referred to as Mecie Mercer. 398 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD hearing the respondent renewed its motion to dismiss and the Trial. Examiner reserved his ruling. In his Intermediate Report the Trial Examiner denied the motion. On April 1, 1939, the respondent duly filed a brief which was considered by the Trial Examiner. The Board has reviewed the rulings of the Trial Examiner on other motions and on objections, to the. admission. of evidence made during. the second hearing, including the rulings made in his Intermediate Report, and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On June 3, 1939, the Trial Examiner filed his Intermediate Report in which he found that the respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the mean- ing of Section 8 (1), (3), and (4) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist from said unfair labor practices and reinstate with back pay the employees named in the amendment to complaint. Thereafter, on July 15, 1939, the .respondent filed exceptions to the Intermediate Report and on July 29, 1939, a brief in support of its exceptions. Pursuant to notice served upon the respondent and the Union, a hearing was held before the Board in Washington, D. C., on August 31, 1939, for the purpose of oral argument. The respond- ent did not appear but the Union was represented and participated in the argument. The Board has considered the exceptions to both Intermediate Reports and, in so far as they are inconsistent with the findings, con- clusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : . FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Riverside Manufacturing Company, a Georgia corporation, main- tains its principal office and place of business in Moultrie, Georgia. It is engaged in the manufacture, sale,,and distribution of pants, shirts, overalls, coats, and caps. Approximately 30 per cent of the raw materials used by the respondent, which consist principally of cotton fabrics, thread, and buttons, are. procured from sources outside the State of Georgia. The value of the products manufactured an- nually by the respondent is approximately $460,000, of which 80 per cent are sold and shipped to customers located outside the State of Georgia. The respondent employs approximately 112 persons and has a monthly pay roll of approximately $8,000. RIVERSIDE 1VIAIc UFACTURIN(I .COMPANY r ;,). . II. THE ORGANIZATION INVOLVED 399 Amalgamated Clothing Workers of America is a labor organization affiliated with the Textile Workers Organizing Committee, herein called the T. W. O. C.,3 and with the Committee for Industrial Or- ganization. . It admits to membership, the production and the main- tenance employees of the respondent, exclusive of clerical and supervisory employees. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; the refusal to bargain 1. The appropriate unit The Union, in its petition, alleges that the production and mainte- nance employees of the respondent, exclusive of clerical and super- visory employees, constitute a unit appropriate for the purposes of collective bargaining. The respondent raised no objection to the appropriateness of this unit. We find that the production and maintenance employees of the respondent, exclusive of supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit The respondent's pay roll for the week ending August 28, 1937, con- tains the names of 104 employees. At the hearing, a copy of this pay roll, with the names of 14 supervisory and clerical employees marked, was supplied by the respondent and introduced in evidence by the Board. Thus, as of August 28, 1937, there were 90 employees in the appropriate unit. Between June 28, 1937, and August 24, 1937, 53 cards, in the form of acceptances of membership in the Union and authorizations for the Union to act as collective bargaining representa- tive, were signed by employees within the appropriate unit whose names appeared on the respondent's. pay roll on the afore-mentioned date. The genuineness of the signatures was supported by testimony and was further attested by the fact that from September 4, 1937, to March 30, 1938, 43 of these employees wrote letters of withdrawal from 3In February 1937, the Amalgamated Clothing Workers of America, the International Ladies' Garment Workers' Union, and the United Textile Workers of America set up an organizing committee, known as the Textile Workers Organizing Committee, which under- took the organization of employees • engaged in the textile and garment industries. In their testimony the witnesses made no distinction between the "T. W. O. C." and the "Union." The terms "Union" and "T. W. O. C." are used interchangeably herein. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union, in which almost all requested the return of their cards. Several of these employees testified at the hearing that their with- drawals were not attributable to the respondent's conduct. For reasons discussed below in Section III A 4, and in "The remedy ;" we find that these withdrawals cannot operate to diminish the 'majority status previously obtained by the Union. We find that on August 28, 1937, and at all times thereafter, the Union was the duly designated representative of a majority of the employees in the appropriate unit, and, pursuant to Section 9 (a) of the Act, was the exclusive representative of all the employees in such unit for, the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. History Early in June 1937 , several employees of the respondent conferred with one Carter, a representative of the American Federation of Labor then engaged in organizing meat workers in the vicinity of Moultrie; Georgia, concerning membership in that organization . Carter ar- ranged for an open meeting of the respondent's employees to be held in the Moultrie City Hall. At the suggestion of H. A. Hutchins,. factory manager, a committee of interested employees informed W. J. Vereen, the respondent's president, of their plans. Vereen told the committee that 'he would be glad to talk to Carter. On the morning following the meeting , over which Frank Mercer, a cutter, presided and at which American Federation of Labor mem- bership application cards were distributed , Carter visited Vereen and after a general discussion concerning labor organizations promised to send Frank Walsh, an organizer of the United Garment Workers,. to Moultrie. Carter had no further meetings with the respondent's em- ployees. In August, Carter returned to Moultrie with Walsh and discussed collective bargaining with Vereen . There is no evidence that Walsh met with the respondent 's employees on this or any later occasion. About June 20, 1937, Alton Lawrence, a representative of the. T. W. O. C., visited the respondent's plant and discussed union or- ganization with a few employees , including Frank Mercer. On June 28, 1937, several employees signed T. W. O. C. authorization cards. Thereafter, meetings were held in the homes of interested employees. By August 24, 1938, cards designating the T. W. O. C. as bargaining representative had been signed by 53 employees. About August 28, 1937, upon the request of the Union ,.Vereen ,met with Alton Lawrence and F . E. Daniels, representatives of the Union, for the purpose of collective bargaining. After 2 hours of general discussion ,•the conference was adjourned .until the following morning.. RIVERSIDE MANUFACTURING COMPANY 401 At the second meeting, which was held in Vereen's office, Daniels stated that the Union represented a majority of the respondent's employees and requested recognition. Vereen replied that some of his employees wanted to be represented by the American Federation ^of Labor. He asked for proof that the Union represented a majority. Various methods of determining the question were suggested. Vereen requested a check of the authorization cards by his secretary, by the mayor of Moultrie, or by a certified public accountant. The Union insisted upon a check of cards by a representative of the Board or an election by secret ballot. The meeting concluded with the understand- eing that .Vereen was to consult his attorney concerning a consent election and Daniels was to discuss the entire matter with an official of 'the Committee for' Industrial Organization at Atlanta, Georgia. Daniels was to communicate with Vereen at a later date and receive the latter's decision. At the close of the working day on September 1, 1937, a few days after the Union's request for recognition, Hutchins, who knew. of the -request, spoke to the operators on the suit line about the Union. Concerning Hutchins' remarks, Annie Carlton, an employee, testified as follows : Well, I could riot remember all he said, but he 'did say that he guessed he had been asleep on the job and he felt like he was probably responsible for all of us being in the plant and he didn't feel like we would be better off if we got the Union in there, because if anything come up we would never be able to get a man down to our hearing; it was a small place, and he had been nice to all of us, and he felt like some of us had stabbed him in the back by doing things and not coming to him first; and said if there was anything going wrong in the plant, we should have come to him first and explained ourselves; if we were not satisfied with the way things were, we should have gone to him, and he also said that he had in mind to present to Mr. Vereen, to ask him for a raise for us, but now, since things were as they were he didn't feel like he had the heart to approach him for a raise at the present time; and he also went onto state that he had been planning on some new figments. in there, for instance, for one to fix the ladies'. bathroom up nicer and all, and he went on to ex- plain how the plant had grown-which was true-and that he felt like we had all been a band of happy workers and he wanted us to continue that way-that is as near as I can come to the statement. Carlton's testimony was substantially corroborated by other em- ployees who testified with respect to Hutchins' speech. Upon the basis of the record, particularly in view of the findings of the Trial Examiner , who had an opportunity to observe the demeanor of the 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD witnesses, we cannot accept Hutchins' explanation that H61-called the meeting because of "confusion" and "talk" in the plant. Nor can we credit his denial that he made anti-union statements to the em- ployees. There was testimony that Hutchins told the employees they were free to join the Union. We attach no weight, however, to this testimony.' We find that Hutchins made the statements attrib- uted to him by Carlton. On or about September 8, Hutchins, at a meeting in his office attended by supervisory and non-union employees,, announced that the raise he had discussed in his talk to the suit line was being granted by the respondent and would be retroactively effective as of 'the preceding pay day, August 31, 1938. Sometime after this meeting in Hutchins' office, Loy Watkins, Magnus McHargue, and other employees of the respondent decided to consult an attorney. Several employees testified that they had heard rumors in the plant that it was illegal to oppose the Union. Others wanted to withdraw from the Union. There is evidence that some of the employees who were in favor of the Union had given warning that it would soon obtain a closed-shop agreement with the respondent and thereafter raise initiation fees. McHargue, a stock- room employee, selected J. C. Gibson, a Moultrie attorney, and made arrangements with Gibson for a meeting in the latter's office. McHargue invited Hutchins to this meeting because he did not want Hutchins to think that the employees "were doing anything behind his back." Another employee invited Vereen. Gibson read and ex- plained the Act to the group of about 30 persons including the respondent's employees. Vereen spoke and assured the employees that they were free to work in the plant whether they joined a union or not. The employees were charged no fees for Gibson's services, or for the use of his office. The following day the employees who had- been present in Gibson's office began an active campaign to defeat the Union. They visited employees who had signed membership cards and induced them to withdraw. Belle Hiers, supervisor of the pants line, Paul Stremmer, head cutter, and Virgie Mosley, timekeeper and chief clerical assist- ant to Hutchins, were among those active in soliciting withdrawals. Flora Wilson testified that Hiers urged her to obtain her card and declared that the Union originated in Russia and was out to overthrow the Government. Maggie Price testified that Hiers visited her and told her that Hutchins was opposed to the Union. According to her 4 See Blanton Company and United Oleomargarine Workers Local Industrial Union No. 459, in which the Board said : "The respondent contends that it continually reminded the employees of their freedom to join a union if they so desired . Such statements, however, when accompanied by threats of reprisals , as here, do not nullify the coercive effect of the respondent's activities." RIVERSIDE MANUFACTURING GOIIIPANY 403 own,.testimony, Hiers visited the homes of employees on three occa- sions in an effort to correct an impression which was current that she had joined the Union. She explained, "I didn't make any state- ments against the union, except I said I was not signing up with it. I just had-I was against the union; I was not signing up with it." In view of all the testimony in the record concerning her activities during these visits we cannot credit her testimony that she restricted -herself to assuring the employees that she had not become a member of the Union. On the contrary, we find that Hiers urged the em- ployees to withdraw from the Union. Mosley told Mae Rentz, an employee, that there was a raise in the office for the employees when they should "squash" the Union. Between September 4 and October 12, 1937, 41 employees wrote letters of withdrawal to the Union. These letters, many of which were introduced in evidence, were strikingly similar as to phraseology and content. With few exceptions, they stated that the writer no longer wished to be a member of. the Union and desired the return of his membership, card. At about the same time the employees who were conducting the .drive for 'membership withdrawals from the Union arranged a bar- becue for employees who had indicated that they were not members of the Union. Stripplin Kelly, supervisor of the suit line, invited employees in the plant to the barbecue and explained to them that it -was,only for non-union, employees. He. also solicited donations from the employees to defray the expenses of the barbecue and, according 'to his own testimony, contributed to the fund. Mattie Mae Mae- Father, "a clerk in the office, obtained signatures on a petition pledging loyalty to the respondent. At the barbecue, William B. Jones, an employee, read aloud the names of the employees who had signed the paper which was described by Vereen as "expressing confidence in the company, and possibly saying they did not want to affiliate with the union, or something to that effect." Hutchins and Vereen were both present at the barbecue and the latter gave a talk in which he thanked the employees for their loyalty. The respondent contended that Hutchins was the only supervisory employee for whose activities it was responsible under the Act. The .contention is based mainly on the fact that Hutchins is the only person at the plant who has authority to hire and discharge. Belle Hiers, 'Verdie Watkins, and Stripplin Kelly are supervisors of the plant, shirt, and suit. lines, respectively. They check the. operators in. their respective lines when they report or leave the plant, instruct them as to the work they are, to do, and criticize and correct the work :.when completed. They are. in complete charge of the work of the `employees in' their lines. It is clear from ,the testimony of the em- ployees and the supervisors themselves that Belle Hiers, Verdie Wat- 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD •kins, and Stripplin Kelly act as the representatives of management in the daily affairs of the plant and are the persons to whom the em= ployees customarily look to learn the desires of the management. Paul Stremmer testified that he is the foreman of the cutting room and that, although he has the "privilege" of disciplining the cutters, he has not exercised it. Stremmer exercises general supervision over the cutters similar to that of the supervisors of the operating lines. During the hearing there was introduced in the record the pay roll of August 28, 1937, from which the respondent had stricken.. - the names of supervisory and clerical employees. It is significant that among the names so stricken were Belle Hiers, Verdie Watkins, Stripplin Kelly, and Paul Stremmer.5 We find that Hiers, Watkins, Kelly, and Stremmer are supervisory employees for whose actions the respondent is responsible.' 4. Conclusions We are satisfied frorn the foregoing facts that the respondent delib- erately pursued a policy designed to discourage its employees from remaining members of the Union in order to relieve itself of its obligation to bargain collectively with the organization which had been selected by a majority of them as their representative. Assured by Lawrence and Daniels that the Union was ready and willing to participate in a consent election for the purpose of proving that it represented a majority of its employees, the respondent, under the pretext of deliberating whether it would accept this method of deter- mination, delayed collective bargaining while it initiated its campaign of discouragement. Within a few days Hutchins addressed the em- ployees on the suit line and told of his disappointment in learning 5 The fact that Stremmer engaged in activities on behalf of the American Federation of Labor and Kelly assisted the Union in the early stages of its campaign to organize the employees , does not absolve the respondent from responsibility for their subsequent acts of interference . As tie pointed out in Matter of Ward Baking Company and Committee for Industrial Organization et at., 8 N. L. R. B. 558 , "A corporate employer necessarily acts through and must be held responsible for the acts of its supervisory employees. Where such employees actively interfere with . . . ( a) labor organizations . . . the employer itself must be deemed to have engaged in . such interference . . See-Matter of Chicago Apparatus Company and Federation of Architects, Engineers, Chemists and Technicians, Local 107; 12 N. L . R. B. 1002. 0 See Matter - of American Manufacturing Company; Company Union of the American Manufacturing Company ; the Collective Bargaining Committee of the Brooklyn Plant of the American Manufacturing Company and Textile Workers Organizing Committee, C. I. 0., 5 N. L. R. B. 443, enforced , as modified ( modification did not affect this portion of the Board's decision ), in National Labor Relations Board v. American Manufacturing Company and Nu-Art Employees, Inc., 106 Fed. (2d) 61 (C. C. A. 2, 1939 ) ; Matter of Planters Manufacturing Company, Inc. and United Veneer Box and Barrel Workers Union, C. I. 0., 10 N. L. R. B. 735, enforced in National Labor Relations Board V. Planters Manufacturing Company, Inc., 105 Fed. (2d ) 750 (C. C. A. 4, 1939), citing Virginia Ferry Corporation Y. National Labor Relations Board, 101 Fed. (2d ) 103, and National Labor Relations Board v. A. S. Abell Co., 97 Fed. ( 2d) 951; Matter of Tennessee Copper Company and A. F. of L. Federal Union No. 21164, 8 N. L. R. B . 575; 9 N. L. R. B. 117. RIVERSIDE' MANUFACTURING COMPANY 405 that they had joined the Union. He expressed the fear that because of their action the respondent might withhold a contemplated raise in wages. Soon after he had acquainted them with the respondent's dis- pleasure, Hutchins demonstrated the leniency of the respondent by announcing that the raise which had-been placed in jeopardy by their disloyal conduct would be granted and made retroactively effective. Besides: discouraging membership, the raise, because of the time and circumstances under which it was granted, had the further effect of discrediting the Union which had unsuccessfully attempted to bargain with the respondent. The subsequent split in the ranks of the Union, followed by the campaign for withdrawals by several employees in- cluding former members of the Union,. was obviously due mainly to the respondent's unlawful conduct. Kelly's solicitation of donations to defray the expenses of the barbecue for non-union employees and the circulation of the loyalty petition in the plant, followed by Vereen's participation in the barbecue, was, under the circumstances, a clear endorsement of the acts of those,employees who had opposed the Union. The respondent cannot disclaim responsibility for .the, withdrawals on the. ground that some of the employees had been misled by the statements of union sympathizers and withdrew. upon learning that it would not, be necessary for them to join the Union in order to retain their jobs. Several employees testified that they withdrew when they discovered they did not have to join the Union. Lawrence, the repre- sentative of the T. W. 0. C., testified that these employees stated to him, or in his presence, about `the time of their withdrawal that they were being urged to resign by the respondent. The letters of • with- drawal make no mention of misrepresentation by the Union... Under the circumstances we do not credit the testimony of these employees as to their reason for withdrawing. It is clear that the respondent's manifestations of, hostility were the major cause of the withdrawals.' We find that the respondent, by the above-described activities of its supervisory employees in discouraging membership in the Union, by the time and manner of granting the wage increase after threatening to withhold it, and by the encouragement of and direct participation in the campaign to secure the withdrawal of memberships in the Union, has interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act.. Furthermore, the above-described conduct of the respondent con- stituted a direct refusal to bargain collectively with the Union. As we have found above, on August 28, 1937, the Union represented a 7 National Labor Relations Board v. Remington Rand. Inc .. 94 F. (2d) 862 (C. C. A. 2). aff'g Matter of Remington Rand. Inc . and Remington Rand Joint Protective Board of the District Council office Equipment Worlers, 2 N. L.' R. B. 626. 283031-41-vol. 20-27 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority of the respondent's employees in the appropriate unit. We have also found that the withdrawals from the Union which fol- lowed the request to bargain and the testimony of several employees as to their reasons for withdrawing did not affect the Union's ma- jority. We have repeatedly held that the unfair labor practices of an employer cannot operate to change the bargaining representative previously selected by the untrammelled will of the majority.8 With respect to the effect of the respondent's conduct following , the request to bargain , our opinion in Matter of Chicago Apparatus Company and Federation of Architects, Engineers, Chemi8ts and Technicians, Local 107,9 is equally applicable here : The duty of an employer to bargain collectively arises only if a request therefor is made by a labor organization that meets the requirements of Section 9 (a). Where a labor organization rep- resenting a majority of employees in an appropriate unit seeks to bargain collectively ; an employer's attempt to destroy such majority and thus to relieve himself of his obligations under Section 8 (5) of the Act is as patently a refusal to bargain within the meaning of Section 8 (5) as a forthright refusal to meet with representatives of a labor organization clothed with the right to exclusive recognition. We need not decide whether under other circumstances an employer 's activities which clearly infringe upon his employees' rights and constitute unfair, labor practices within the meaning of other subdivisions of ''Section 8 of the Act also constitute ' an unfair labor practice within the meaning of Section 8 (5). It is obvious , however, that under the circumstances present in the instant case, to find" that the respondent's conduct in posting its "statement of policy" con- stituted an unfair labor practice only under Section 8 (1) of the Act would nullify Section 8 (5). So to restrict our finding "would be to hold that the obligation 'of one provision of the Act may be evaded by the successful violation of"another." The respondent, in seeking to destroy the majority status of the Union, immediately following the Union's request to bargain and its asserted intention to invoke the services of the Board in demonstrating its majority, plainly showed that' it' was solely interested in avoiding its obligation to bargain with 'the Union. In the present case the conduct of the respondent after receiving the request for bargaining rights impels us to the conclusion that the 'Matter o f American Numbering Machine Company and International Association of Machinists, District #5, 10 N. L. R. B. 536; Matter of George P. Piling cE Son Co. and Dental, Surgical ct Allied Workers Local Industrial Union No. 119, affiliated with the C. r. 0., 16 N. L. R. B. 650; New Era Die Company and International Association of Machinists' Lodge 243 (A. F. of L.), 19 N. L. R. B. 227. e 12 N. L. R. B. 1002. RIVERSIDE MANUFACTURING COMPANY 407 respondent never intended to bargain collectively with the Union and merely utilized an asserted doubt regarding the Union's status as majority representative to evade its duty to bargain collectively. Furthermore, the conduct of the respondent in granting the wage increase was, under the circumstances set forth above, a violation of its obligation to bargain with the Union. We have held that when an employer unilaterally grants concessions to his employees, at a time when their designated union is attempting to bargain concerning the same subject matter, such action constitutes a violation of the em- ployer's duty to bargain with the accredited union."' While it is true that the Union had made no formal demands for a wage increase in the instant case, the principle is nevertheless applicable. The blow to the Union's prestige is equally severe, and the demonstration that so far as.the respondent is concerned collective bargaining is neither de- sirable nor necessary is just as impressive, whether the respondent first ascertains the demands of the Union or, as here, forestalls proof of majority-'arid, anticipating what the, demands of the Union shall be, makes a unilateral concession. . 'The respondent .contends that on August 28, 1937, the question of whether the Union represented a majority of the employees was not determined, and that at no time since has the Union made any further request for recognition. However, as set forth above, the respondent by its unlawful conduct has made questionable the Union's ability to prove its majority by a consent election. Under the circumstances the reluctance of the Union to, test its strength without the full pro- tection of the Act was not unreasonable. Our reasoning with 'respect to the inability of an•employer to evade his obligation under one provi- sion of the Act by the. successful violation of another applies with equal force to the contention that, after the unlawful conduct of the respondent had resulted in wholesale withdrawals, the Union was obliged again to demand recognition and submit new proof of majority."' We find that about August 28, 1937, and thereafter, the respondent refused to bargain collectively with the Union as the exclusive repre- sentative of its employees in an appropriate unit, and that the respond- ent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discharges prior to August 1988 C. M. Bradley, a cutter, was hired by the respondent in 1925 and, except for a period of approximately 2 years, was employed continu- 10 Matter of Chicago Apparatus Company and Federation of Architects , Engineer.,. Chemists and Technicians, Local 107. 12 N. L. R. B. 1002. u Footnote 10 supra. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ously until his discharge on January 12, 1938. Bradley was one of the first of the respondent's employees to join the Union and solicited other employees to sign membership cards. Early in September 1937; he told Hutchins that he was a member of the Union. While withdrawals from the new organization were being sought in the fall of 1937, Bradley and Frank Mercer visited the homes of many employees who had signed' cards and urged them to remain faithful to the Union. Notwithstanding their efforts, Bradley and Mercer were the only male employees in the plant who had not withdrawn from the Union by October 25, 1937. The respondent in its answer alleges substantially that Bradley was discharged when, after it had been reliably reported that he was suffering from a venereal disease, Bradley refused to submit to a medical examination before returning to work in the plant. The answer further alleges that Bradley had used obscene and offensive language in the presence of female employees in. the plant, had been insubordinate and disrespectful, and had threatened violence to the respondent's officers and employees. On January 12, 1938, Vereen drove Bradley to his office at the Moul- trie Cotton Mills and informed him that some of Bradley's fellow employees had complained that Bradley was affected with a venereal disease and had demanded his discharge. Vereen told Bradley that he would have to be examined by Dr. Brannen, a physician retained by the respondent. While it is clear that Bradley agreed to be ex- amined by Brannen provided he was also examined by his own physi- cian, and that Vereen found such an arrangement satisfactory, there is a conflict in the testimony of the two participants as to what oc- curred during the remainder of the interview. According to Vereen, Bradley changed his mind and refused to be examined. According to Bradley, Vereen informed him that, irrespective of the outcome of the examination, he would have to "lay out" several weeks to satisfy the other employees and avoid hard feelings. Because of our finding set forth below that Bradley was not discharged for refusing to submit to an examination, it is unnecessary for us to resolve the conflict in testimony. During the evening of January 12,, Bradley was examined by Dr. J. M. Palmer. He immediately telephoned Vereen and told him that he had a "statement" from the doctor, but Vereen refused to discuss allowing Bradley to return to work. The following day, after reporting for work at the plant and being told to leave by Hutchins, Bradley submitted to an examination by Dr. Brannen, who thereafter reported to Vereen that the test dis- closed no active infection. Later Brannen made a second examination which confirmed the first. Vereen testified that this second examina- RIVERSIDE MANUFACTURING 001YIPANY 409 tion was "very likely" made at his request . Despite the reports of Dr. Brannen, Vereen, when . asked by Mercer to reinstate Bradley, refused. While we do not entirely credit Vereen's version of the interview of January 12, particularly with respect to Bradley 's sudden change of position , we are convinced that even if he had refused to be examined on January 12, Bradley was not discharged for that reason. The subsequent refusal of the respondent to reinstate Bradley while evincing a striking interest in whether he was actively infected, in the light of the respondent 's hostility to the Union; leads us to con= elude that the. -respondent seized upon the incident of January 12 to rid itself of one of the most active union members and thereafter sought to bolster its excuse by obtaining conclusive evidence that Bradley was infected with a communicable disease, the nature of which would bar his reinstatement . The respondent's refusal to re- turn Bradley to the plant and ' quell the suspicions of his accusers after it had been informed by its own physician that Bradley was not actively infected , as they had alleged, flatly contradicts Vereen's assertion that he desired to help Bradley. We find that Bradley was not discharged because he refused to submit to a medical examination. During the hearing there was some testimony that Bradley had used indecent language in the presence of female employees . Bradley testified that he never knowingly used such language in the presence of ladies, and Hutchins was unable to recall ever having brought the conduct to Bradley's attention.. The testimony of Vereen that he mentioned complaints based on such conduct . to' Bradley on January 42, 1938, was contradicted by Bradley . Furthermore, there is evi- dence that Loy Watkins, the most active opponent of the Union, used profanity in the presence of female employees and was not disciplined. There is testimony that during his employment by the respondent Bradley sometimes criticized and ridiculed Hutchins to other em- ployees. Magnus McHargue , one of the group opposed to the Union, testified that Bradley on one occasion, after engaging in a dispute with another employee over a newspaper , requested the loan of a shotgun . According to McHargue, Bradley said that he might be able to use the gun that same day because Hutchins had his girl in the office. McHargue testified that he reported the incident to Hutchins. Bradley denied making the statements attributed, to him and -testified that he did not state to McHargue that he would take his shotgun "down to the plant and clean up the whole business." Hutchins testified that he had received complaints concerning Brad- ley's conduct from the time he first came to work until the date of his discharge. The respondent's failure to discipline Bradley for his allegedly long-standing misconduct until he became active in the 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union leads us to infer that this purported reason for Bradley's dis- missal was a mere pretext engaged in to conceal the fact that he was discharged because of his union activities. On the basis of the record, we cannot accept the contention of the respondent that the use of improper language, acts of insubordination and disrespect, or threats of violence were factors which caused the respondent to discharge Bradley. The cause of Bradley's discharge may be found in his union activ- ity. Except for Mercer, who was subsequently removed by the re- spondent, Bradley was the outstanding union member. His position as a leader in an organization so distasteful to the respondent was made known to Hutchins at an early date. When, as a result of the respondent's unlawful conduct, the employees were withdrawing from the Union, Bradley and Mercer were urging them to remain members. Although their efforts were unavailing to stem the tide of resigna- tions, Bradley and Mercer, together with approximately eight others, refused to withdraw from the Union. It was this uncompromising attitude of Bradley, in the face of the respondent's hostility, which was the cause for his discharge. The unfounded complaint of his fellow employees merely furnished the occasion for which the respond- ent had been waiting. We find that the respondent has discriminated in regard to the hire and tenure of employment of C. M. Bradley, thereby discouraging membership in the Union and interfering with, restraining, and co- ercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. At the time of his discharge Bradley's earnings were approximately $17.50 for the normal 40-hour week. Up to the date of the first hearing he had earned approximately $100 since his discharge and desired to be reinstated. Frank Mercar, a cutter, was employed by the respondent in 1925 and worked almost continuously until March 24, 1938. He received higher wages than any other employee in the cutting department, with the exception of Stremmer, the foreman. Mercer was the most active member of the Union in the plant. He presided at the American Federation of Labor meeting early in June 1937. Later that same month, Mercer joined the Union and arranged for meetings of em- ployees. When Vereen announced that Carter and Walsh had been to see him, Mercer told Vereen that the employees were no longer interested in the American Federation of Labor. From December 1937 to the date of his discharge,. Mercer acted as shop committeeman and met with Vereen to discuss grievances on behalf of the Union. He 'and Bradley were the only male employees who continued their membership in the Union after October 25, 1937. Winona Hooks, one RIVERSIDE MANUFACTURING COMPANY 411 of the complainants, testified that a short time after Bradley's dis- charge Hutchins inquired of her whether Mercer was still interested in the Union. Being told that.Mercer intended to remain with the Union, Hutchins, according to Hooks, advised her that Mercer or anyone else "could stick their neck out far enough and they would chop it.off." Hutchins generally denied making any anti-union state- ments. In view of Hutchins' anti-union speeches and his hostility to the Union as described in subsection A above, we do not credit his denial and we find that he made the statement ascribed to him by Hooks. Cutters at the respondent's plant are required to place size tickets on the individual pieces and bundles of material which they cut. The size on the bundle ticket must correspond to the size on the cut pieces because the tickets serve as guides for the operators who sew together the different parts which make up the complete garment. The evi- dence establishes that the cutters commonly make errors in placing tickets on the bundles and that they rectify the errors when discov- ered by-the operators. On March 24, 1938, Ruby Flowers, an operator on the pants line, discovered that the size on the ticket of the bundle on which she was working did not correspond to the size on the pants in the bundle. Flowers told another employee on the line, who, finding that her own bundle was incorrectly ticketed, reported. the mistake to Hiers, her supervisor. Hiers in turn reported the error to Stremmer, the cutter foreman, and he identified the, work as that of Mercer. When Mercer was shown his mistake he suggested.to Hiers that the operators run through the bundles which were not mixed and he would return from the cutting- room and straighten out the eight mismarked bundles which contained approximately 10 dozen pairs of pants. While Hiers was examining some of the bundles at the pants line, Hutchins came up to her and inquired about the trouble. Hiers explained that there was-a- mix-up. ' Hutchins immediately went into the cutting room and, after summoning Stremmer, told Mercer to bring the whole "cut," 12 which consisted of approximately 70 dozen pairs of pants, from the sewing room back into the cutting room for the purpose of correcting the error. Mercer agreed and arranged to have Hiers notify him when she had the bundles ready. Hutchins returned to his office. A short time later, Hiers signaled that the bundles were prepared, and Mercer went into the sewing room and began to sepa- rate the tickets at a table on which some of the bundles had been placed. Hutchins, who was passing through, asked Mercer why he 12 In referring to the material which Mercer had cut and which was in the sewing depart- ment when the mix-up was discovered. the witnesses used "cut" and "lay" interchangeably. For the purposes of these findings it is not necessary to distinguish between the two items. Accordingly, "cut" and "lay" will be used interchangeably. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was not carrying all the bundles into the cutting room as he had been instructed to do. Mercer explained that he- could straighten out the tickets at the table. Without further discussion, Hutchins, ordered Mercer to return to the cutting room. Witnesses for the respondent, who were present in the cutting room at the time, testified that Hutchins repeated his instructions and told Mercer he must, either take back the whole "cut" or check out. They testified that Mercer said that he would not do it and left the plant. On the other hand, Mercer testified that when the superintendent told Stremmer that he had refused to carry out the order, he (Mercer) said, "No, I haven't refused," that Hutchins thereupon told him not to argue and in- structed.Stremmer to "check him out." We need not, however, resolve the conflict in testimony. We are satisfied that even if Mercer refused to carry out the order, such refusal was not the real reason for his discharge. Thereafter, Mercer conferred with Vereen several times in an effort to obtain reinstatement to, his job in the plant. Vereen sug- gested that he talk to Hutchins, but the latter refused to put him back to work. Ordinarily, when there is a mix-up of the type caused by Mercer, the cutter involved is notified and straightens out the bundles in the sewing room. Stremmer straightened out the mistake after Mercer left, but Hiers, who watched him, could not recall whether he found it necessary to bring the entire: lay into the cutting room to do so. We do not believe that Mercer, an experienced cutter who had been with the respondent for approximately 13 years, was discharged and refused reinstatement because on one occasion he refused to'obey an order of the superintendent with respect to the precise manner in which he should correct a common error. It should be noted that Stremmer, Mercer's immediate superior, was apparently satisfied with the manner in which Mercer had' proceeded to correct the error. Assuming that Mercer in fact disobeyed Hutchins' order, the trivi- ality of the entire incident cannot explain the severity of the disci- pline which Hutchins imposed .1-3 We are of the opinion that the respondent seized upon an incident which ordinarily would not require the attention of the superintendent and utilized it for the purpose of eliminating the outstanding survivor of the campaign against the Union. We find that the respondent has discriminated in regard to the hire and tenure of employment of Frank Mercer, thereby discour- aging membership in the Union and interfering with, restraining, 13 Compare the respondent 's exercise of its disciplinary ' power here and its refusal to exercise such power in connection with the eviction of union members discussed in section II below. RIVERSIDE MANUFACTURING GOMPANY 413 and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. At the time of his discharge Mercer was earning $23.80 per 40-hour week. Between his discharge and the date of the first hearing he had earned approximately $10, and desires reinstatement. Winona Hooks, a seaming-machine operator on the suit line, worked for the respondent from February 1935 until June 3, 1938. She joined the Union in July 1937. During the early activities of the Union she lived with Mecie Childs, in whose home several meetings were held. * Hooks testified that she withdrew from the Union in October 1937 at the insistence of Kelly, her supervisor. She rejoined on February 2, 1938. . The respondent, in its answer, alleged in substance that Hooks left her work about April 22, 1938, without notifying Hutchins; that Hutchins thereupon made other arrangements with respect to her work; and that when she again reported, production at the plant had been so curtailed that she could not be reemployed. On a Thursday in late March or early April 1938, Hooks learned that her mother was ill. There was no work on Friday or Saturday, and Hooks, expecting to return to work on the following Monday, left the plant. However, finding that her mother would be in need of assistance for an indefinite period, Hooks sent word to Hutchins that she would have to remain at home. Hooks entrusted the mes- sage to another employee, who delivered it to Hutchins early the following week. The record establishes that this was the method commonly used by employees to give notice that they intended to be absent from work. On April 27, 1938, Hooks wrote to Hutchins informing him that she did not know how long her mother's illness would last and asking him to let her know whether he could keep her job open for her. On May .6, Hutchins replied that he could i;iake no definite promises due to "the gloomy business outlook." On June, 3, 1938, after receiving no reply to a second letter written on May 12, Hooks applied at the plant and was told by Kelly to come to work on June 8, 1938. When she arrived, Kelly instructed her to see Hutchins, who informed her that there would be no work for her until business increased. It is clear from the record that the business of the* respondent decreased substantially in the spring., and summer of 1938. While we do not believe that Hooks failed to give proper notice of her absence, in view of the decrease in production and the long period of her absence, we are of the opinion that the refusal to reinstate her was not discriminatory. We find that the allegations of the complaint with respect to Winona"Hooks are not sustained by the evidence. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Annie Page was hired by the respondent as an inspector of suits in January 1937. After 5 weeks she was transferred to a joining machine. Page joined the Union on July' 26, 1937, but at Kelly's insistence resigned from the Union on October 9. There is no evidence that Page ever rejoined the Union. During October, Page left work to take care of her son, who was ill. For a brief period after her return Page worked as an inspector. Thereafter, Hutchins assigned her to -a lettering machine, one of the. highest paid operations in the plant. After 6 weeks of attempting to learn the operation, Page asked for a transfer to inspecting work. There was no opening available. - With Hutchins' assistance, Page obtained part-time employment at another plant. We find that the allegations of the. complaint with respect to Annie Page are not sustained by the evidence. Emma Tuttle, a machine operator, was hired by the respondent in October 1936 and worked until December 11, 1937. She joined the Union on July 23, 1937. Tuttle was one of the' few employees.-who did not withdraw from the Union despite the open hostility of Hutchins and the other supervisory employees. The respondent's answer alleged, in substance, that Tuttle had volun- tarily left its employ in December 1937 for a period of approximately 6 months, and that during her absence she was replaced. The record shows that about December 8, 1937, Tuttle left the plant for about 6 months to attend her mother, who was ill in Florida. A few days before she left, Vereen told Mercer that he was confident that there would be a place for Tuttle when she was able to return. Tuttle wrote to Hutchins on May 24 and June 1, 1938, stating that she was ready to go to work and reminding him of Vereen's statement to Mercer. On June 18, 1938, Hutchins informed-her that because production had been considerably curtailed, he could not employ her at that time. He promised that he would put her to work when business conditions warranted. Tuttle had been replaced during her 6 months' absence. We find that the allegations of the complaint with respect to Emma Tuttle are not sustained by the evidence. C. The unfair labor practices from August 16,1938, to January 14,1939 1. The evictions As set forth above, the amendment to complaint issued by the Re- gional Director on January 14, 1939, alleges in substance that the respondent caused the eviction from its plant of, discharged, and refused to reinstate Thelma Hancock, Eunice Ellis, Cora-McMullin, Maggie Price, Mae Rentz, Lela Hodges, Irene Richards, Flora Wilson, RIVERSIDE itA UFAC'TUR.I G COMPANY 415 and Mecie Childs because of their membership in the Union and because they testified at the hearing held from August 8 to 16, 1938. Mecie Childs was subpenaed but did not testify at the first hearing. The other employees named were subpenaed and testified on behalf of the Board. The respondent contends that it is in no way responsible for the eviction of the employees named in the amendment to complaint and denies that it discharged or, refuses to reinstate them. From the conclusion of the hearing to October 26, 1938, the non- union employees were permitted continuously to scoff at and deride the union members in the plant. Hiers and Kelly were aware of the breach in discipline but made no effort to stop it. Shortly after the first hearing, Flora Wilson complained to Hutchins about the "booing" by the non-union employees. However, Hutchins took no action until he actually observed the improper conduct himself. Although he instructed the non-union employees to stop molesting the union mem- bers,' the disturbances continued. On October 19, 1938, the Trial Examiner issued his Intermediate Report, in which he recommended that the respondent reinstate C. M. Bradley, Frank Mercer, and Winona Hooks, and upon request bar- gain collectively with the Union. The Intermediate Report was received by the respondent on October 25, 1938. On October 26, 1938, during the lunch hour, which extends from 12 noon until 1 p. in., some of the non-union employees brought into the plant and circu- lated a newspaper containing a news item summarizing the Interme- diate Report. After lunch the employees stood in groups discussing the article. A few minutes before 1 p. m., Hiers, Verdie Watkins, and Kelly, the supervisors, checked in the operators at their respec- tive lines and promptly withdrew from the operating room. Hiers left for the rest room to dress a sore foot. Kelly and Verdie Watkins, the latter after she had turned on the power, entered different sec- tions of the stockroom. Hutchins had left the plant earlier. The record does not indicate the whereabouts of Stremmer. In the office at the time were Mosley, McFather, and Nance, clerical employees. After the power was turned on, a group of employees in the rear of the room called the other non-union employees from their ma- chines, leaving only the union members working. At 1:15 p. in., Loy Watkins, the plant machinist and husband of Verdie Watkins, turned off the power, an act he had never done before without specific instructions from Hutchins. Leo Mercer, a cutter, then addressed the non-union employees. He asked them whether they were willing to work- with the employees whom the Trial Examiner had recom- mended should be reinstated or were in favor of putting the remain- ing union members out of the plant. When they indicated that they 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD favored the second course of action, Mercer led them to the front of the operating room, where the women in the group ordered the union members, consisting of Thelma Hancock, Cora McMullin, Eunice Ellis, Maggie Price, Mae Rentz , Irene Richards, and Flora Wilson, to leave the plant or be ejected with violence. The union members left the plant peacefully. At one point during the eviction Kelly appeared at the door of the stockroom and asked what the "commo- tion" was about. According to Kelly, several of the operators said, "If you don't get back in there and keep your mouth shut you will find out right quick." Kelly thereupon decided to remain inside the stockroom. Hiers, when told what was happening, remained in the rest room because she "did not want to get in it." Verdie Watkins observed part of the eviction but, according to her testimony, was afraid to leave the stockroom. As soon as the union members were outside the plant, Loy Watkins turned on the power and operations were resumed by both non-union and supervisory employees. Virgie Mosley reported the eviction to Hutchins, who in turn notified Vereen. After a conference with Hutchins and the respond- ent's attorney, Gibson, Vereen returned to the plant and addressed the non-union employees. He told them that he was sorry that the eviction had occurred, and requested that the group permit the union employees to return. He then asked for a show of hands of those who favored taking back the employees who had been evicted. Receiving no response, he asked how many were not in favor of taking them back. All hands were raised. Vereen continued to plead with the employees to take back the union members. Finally, it was arranged that Loy Watkins should talk to the non-union employees individually and give Vereen a final decision the following day. On October 27,1938, Mecie Childs and Lela Hodges, union members who had not worked on October 26, reported for work. The non- union employees would not permit them to enter the plant. Late in the afternoon Loy Watkins reported to Vereen that he had polled the non-union employees and that they would not alter their decision. Thereafter, Vereen held several conferences with the union members and their representative and discussed the danger involved in rein- stating them. Vereen maintained throughout the conferences that he was at all times willing to reinstate the union employees but that he could not induce the non-union group to permit their return. How- ever, he refused to take steps to insure their safety. None of the' evicted employees returned to work. The employees who took pos- session of the plant on ;October 26, and whose names were given to. Vereen by the union employees, were never disciplined for their `part in the eviction or for the threats made to Kelly. RIVERSIDE MANUFACTURING COMPANY 417 2. Conclusions with respect to the unfair labor practices from August 16, 1938, to January 14, 1939 We have already observed the respondent's hostility to the Union and the activities of its supervisory employees in coercing union mem- bers to resign from the Union. The evictions of the union employees must be considered in the light of the respondent's acts of opposition to the growth of the Union and the effect of these acts upon the employees. When the members of the Union, all but one of whom had testified against the respondent, returned to the plant they were subjected to derision and ridicule by the. anti-union faction. The anti-union cam- paign carried on by the non-union employees, as described in Section ,.E 1 above, followed by the reluctance of Hutchins and the other supervisory employees to restore normal order in the plant, amounted to an open invitation to the anti-union employees to take further steps toward. the final elimination of the Union and its sympathizers. It is clear that the shutting off of the power in the respondent's plant on October 26,' 1938, and the eviction and exclusion of the union mem- -bers were a direct result of the respondent's unlawful conduct in encouraging the anti-union group. Under the circumstances the respondent cannot disclaim responsibility for the ouster on the ground th^t-it was planned and carried out by its employees.l" lWhen the respondent was notified of the evictions, there rested upon it an, affirmative duty to, reinstate the union, employees and safeguard them from assaults or threats by the non-union em- ployees.15/That duty was not discharged by Vereen's poll of senti- ment and his plea to the employees who had usurped the respond- ent's control over the plant. In striking contrast to the respondent's .treatment of Bradley and Mercer, described in Section III B above, .is the fact that during the entire course of events none of the em- 14 See Clover Fork Coal Co . v. National Labor Relations Board, 97 F. ( 2d) 331 (C. C. A. 6), enforcing Matter o f Clover Fork Coal Company and District 19, United Mine Workers of America, 4 N. L. R. B. 202, in which the Court said : "The contention that employees were not discharged because of union activities by the petitioner , but were forced out by the determined attitude of petitioner's non-union men in refusing to work with members of the United Mine Workers, must be rejected in view of evidence which supports findings that the attitude of the petitioner's non-union men was, if not inspired by, at least en- couraged and promoted by the petitioner and its agents ." See also Matter of General Motors and Deleo-Remy Corporation and International Union, United Automobile Workers of America, Local No. 146, 14 N. L. R. B. 113. Cf. N. L. R. B. v. Asheville Hosiery Com- pany, 108 F. ( 2d) 288 (C. C. A. 4), mod'g and enf'g Matter of Asheville Hosiery Company and American Federation of Hosiery Workers, 11 N. L. R. B. 1365 , in which the Court found that the employer's responsibility for a similar eviction of union employees by non- union employees was not shown by substantial evidence. 11 See Matter of General Shoe Corp. and Georgia Federation of Labor, 5 N. L. R. B. 1005, consent order enforced in National Labor Relations Board v. General Shoe Corp., 99 F. (2d) 223 (C. C. A. 5) ; Matter of General Motors and . Deleo-Remy Corporation and Inter- national Union, United Automobile Workers of America, Local No . 146, 14 N. L. R. B. 113. Cf. Matter of Asheville Hosiery Company, cit., supra, in which the employer reinstated the evicted employees. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees who had participated in the evictions were discharged or even disciplined for their unlawful conduct and their persistence in refusing to permit the reinstatement of the union employees. Vereen testified that he adopted a course of conciliation, persuasion, and reasoning rather than the alternative of discharging the employees' who had engaged in the evictions, because he believed that if he discharged any members of the group, all non-union employees would have refused to work and would have left the plant. The record does not convince us that such disciplinary action would have pro- voked a strike of non-union employees. However, even if such danger existed, the respondent would not be excused from its duty to protect its employees in the plant and to maintain safe working con- ditions for them.16 In Matter of General Motors and Delco-Remy Corporation and International Union, United Automobile Workers of America, Local No. 146,17 wherein the respondent sought to ex- cuse its failure to take disciplinary action on the ground that such action would have provoked retaliatory rioting, we stated : " .. . even if such fears were justifiable under the circumstances, since the conduct and the anti-United feeling of the evicting employees had been incited and fostered to a large degree by acts and omissions of the respondent, the respondent cannot excuse its admitted failure to safeguard its employees because of any helplessness before a `loyal- employee' revolt whose alleged overwhelming power resulted from respondent's own policies." The language is equally applicable here. By its conduct in condoning the eviction of the union employees through its failure to discipline non-union employees and its refusal to afford -the union employees adequate protection during working hours, the respondent in effect adopted a closed shop, limiting em- ployment to those who were not members of the Union. It is ob- vious that such closed-shop effect was not the result of collective bargaining but rather the effect of the respondent's unfair; labor practices. Between October 26, 1937, and the date of the second hearing, Vereen, on several occasions, offered to allow the union members to return to the plant but would not insure their safety."' In the ab- 10 Hutchins testified that on October 28, 1938 , Duncan Warr, a Field Examiner attached to the Tenth Regional Office, suggested that , in view of the danger existing at the time, the union employees should not be immediately reinstated in a body but should be returned to the plant in pairs . The respondent contends that the suggestion of Warr estops the Board from finding that the respondent should have Immediately reinstated all the em- ployees who had been evicted. It is clear from the record that the suggestion of Warr was in the nature of an offer of settlement and does not affect the power of the Board to find that the respondent did not discharge its duty toward the evicted employees. 17 14 N. L. R. B. 113. 11 During the hearing the respondent filed an amendment to its answer in which it averred that it was willing to have the evicted employees return to the plant. There was no offer, however, to insure the safety of said employees if they returned . Indeed, the respondent admits in its brief that it has always been unsafe for the union employees to return to the plant. RIVERS'IDE MANUFACTURING COMPANY 419 sence of some guarantee of protection the employees were justified in not returning. They had not left the respondent 's employ upon their own volition. On the contrary, their loss of employment was directly attributable to the respondent 's acts in encouraging and inspiring the evictions and in failing in its duty to afford full protection to the .ousted employees. We find that the unlawful conduct of the respondent was the direct cause of the exclusion from the plant of Thelma Hancock, Cora McMullin, Lela Hodges, Eunice Ellis, Maggie Price, Mae Rentz, Irene Richards , Flora Wilson, and Mecie Childs . We find that the respondent has thus discriminated in regard to the hire and tenure .of their employment and has thereby discouraged , membership in • the Union and has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. We further find upon the basis of the entire record that the respondent by its unlawful acts had discriminated against Thelma Hancock, Cora McMullin, Lela Hodges, Eunice Ellis, Maggie Price, Mae Rentz, Irene Richards , and Flora Wilson, because they gave testimony under the Act. ,IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities ` of- the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom. We shall also order the respondent to 'take certain affirmative action which we deem necessary to effectuate the policies of the Act. Having found that the Union represented a majority of the em- ployees in the appropriate unit on the date of the . respondcnt's refusal • to bargain collectively ; our Order will provide that the respondent, upon request, bargain collectively with the Union as the exclusive representative of the employees within the appropriate unit. We have found that certain employees wrote letters of withdrawal to the Union. These withdrawals were occasioned by the respondent's unfair labor practices., It will be the purpose of our Order to restore the status quo by giving effect to the Union's majority existing on the date of the refusal to bargain collectively . A failure to order the respondent to bargain collectively , upon request, with the Union 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD `would be to hold that the obligation of one provision of the Act may be evaded by the successful violation of another; that the freely expressed wishes of the majority of the employees may be flaunted. if the employer brings to bear sufficient interference, restraint, and coercion to undermine the representative's majority support." 19 Since we have found that the respondent has discriminatorily dis- charged C. M. Bradley and Frank Mercer, and, by its .discriminatory acts, has brought about the termination of the employment of Thelma Hancock, Cora McMullin, Lela Hodges, Eunice Ellis, Maggie Price, Mae Rentz, Irene Richards, Flora Wilson, and Mecie Childs, we shall order the respondent to offer to these employees full reinstatement to their former or substantially equivalent positions, and to make each of them whole for any loss he or'she may have suffered by reason of such discrimination by payment to each of them of a sum equal to the amount which he or she normally would have earned as wages from the date of the termination of his or her employment to the date of the offer of reinstatement, less his or her net earnings 20, during said period. Having found that the respondent has unlawfully failed to safe- guard the union employees from assaults and threats by its non-union employees, we will order the respondent to provide for the reasonable protection of the employees reinstated, and for all its employees iii the plant, from physical assaults or threats of physical violence directed at discouraging membership in, or activities on behalf of, the Union or any other labor organization, and to instruct all its employees that physical assaults or threats of physical violence directed at discourag- ing membership in, or activities on behalf of, the Union or any other labor organization will not be permitted. VI. THE PETITION In view. of the findings in Section III A 1 above, as to .the . appro- priate-unit and the designation of the Union as the exclusive repre- sentative of the respondent's employees in the appropriate unit, it is '° Matter of Missouri, Kansas ' Oklahoma Coach Lines and International Association of Machinists et at ., 9 N. L. R. B. 597. 20,13y "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and `working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2,590, 8 N. L. R. B. 440. Monies re- ceived 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 de- ducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county , municipal , or other government or governments which supplied the funds for said work -relief projects. C RIVE'RS'IDE MANUFACTURING C'OM'PANY 421 'not necessary to consider the petition for certification of representa- tives. Consequently,' the petition for certification will be dismissed. 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. Amalgamated Clothing Workers of America is a labor organiza- tion, within the meaning of Section 2 (5) of the Act. -2. The production and maintenance employees of the respondent, exclusive of supervisory and clerical employees, constitute a unit ap- propriate for the purposes of collective bargaining, within the mean- ing of Section 9 (b) of the Act. 3. Amalgamated Clothing Workers of America is and has been at all times since about August 28, 1937, the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with Amalgamated Clothing Workers of America as the exclusive representative of its employees in the appropriate unit, the respondent has engaged in and is engag- ing in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employ- ment of C. M. Bradley and Frank Mercer, by its conduct in causing employees. to oust and exclude from the plant, and by its refusal to of- fer unconditional reinstatement and guarantee protection to Thelma Hancock, Cora McMullin, Lela Hodges; Eunice Ellis, Maggie Price, Mae Rentz, Irene Richards, Flora Wilson, and Mecie Childs and thereby discouraging membership in Amalgamated Clothing Workers of America, the respondent has engaged in'and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6.:By its conduct in causing employees to oust and exclude from the plant, and by its refusal to offer unconditional reinstatement.and guarantee protection to Thelma Hancock, Cora McMullin, Lela Hodges, Eunice Ellis, Maggie Price, Mae Rentz, Irene Richards, and Flora Wilson, the respondent has discriminated against them because they have given testimony under the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (4) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 283031-41-vvo 1. 20-28 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9. The respondent has not engaged in unfair labor practices , within the meaning of Section 8 (3) of the Act , with respect to the discharge of Winona Hooks, Annie Page, and Emma Tuttle. 10. The respondent has not engaged in unfair labor , practices, within the meaning of Section 8 (4) of the Act, with respect to Mecie Childs. 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, Riverside Manufacturing Company, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Amalgamated Clothing Workers of America as the exclusive representative of all its produc- tion and maintenance employees, exclusive of supervisory and clerical employees; (b) Discouraging membership in Amalgamated Clothing Workers of America, or any other labor organization of its employees, by discharging or refusing to reemploy any of its employees, or.denying them protection at their work or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condi- tion of their employment; (c) Discriminating against any of its employees for giving testi- mony under the National Labor Relations Act; (d) Permitting threats of physical violence to employees in its plant for the purpose of discouraging membership in or activities on behalf of the Amalgamated Clothing Workers of America; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid and protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Amalgamated Cloth- ing Workers of America as the exclusive representative of its production and maintenance employees, exclusive of supervisory and clerical employees ; (b) Offer to C. M. Bradley, Frank Mercer, Thelma Hancock, Cora McMullin, Lela Hodges, Eunice Ellis, Maggie Price, Mae Rentz, RIVERSIDE' MANUFACTURING 00NI'PANY 423 Irene Richards, Flora Wilson, and Mecie Childs immediate and full reinstatement to the positions formerly held by them or positions substantially equivalent thereto, without prejudice to their seniority or other rights and, privileges, and insure them full and adequate protection while they are in the employ of the respondent; (c) Make whole C. M. Bradley, Frank Mercer, Thelma Hancock, Cora McMullin, Lela Hodges, Eunice Ellis, Maggie Price, Mae Rentz, Irene Richards, Flora Wilson, and Mecie Childs for any loss of pay they may have suffered by reason of the respondent's acts by payment to each of them of a sum of money equal to that which each would normally have earned as wages during the period from the date of the termination of employment of each to the date of the respondent's offer to reinstate, less the net earnings 21 of each during that 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; (d) Afford all its employees reasonable protection in the plant at all times from physical assaults or threats of physical violence directed at discouraging membership in, or activities on behalf of, Amalgamated Clothing Workers of America, or any other labor organization; (e) Instruct all its employees that physical assaults or threats of physical violence directed at discouraging membership in, or activi- ties on behalf of, Amalgamated Clothing Workers of America, or any other labor organization, will not be permitted in the plant at any time, and take effective action to enforce this rule; (f) Immediately post notices to all its employees in conspicuous places in and about its plant and maintain said notices for a period of at least sixty (60) consecutive days, stating (1) that the respondent will cease and desist in the manner set forth in paragraph 1 (a), (b), (c), (d), and (e) of this Order; (2) that the respondent will take the affirmative action required in paragraph 2 (a), (b), (c), (d), and (e) of this Order; and (3) that the respondent's employees are free to become or remain members of the Amalgamated Clothing Workers of America, and that the respondent will not discriminate against any employee because of membership or activity in that organization ; 21 See footnote 20, supra. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (g) Notify the Regional Director for the Tenth 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 hereby is, dismissed in so far as it alleges that the respondent, by discharging Winona Hooks, 'Annie Page, and Emma Tuttle, has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act, and that by refusing to reinstate and afford protection to Mecie Childs the respondent has engaged in unfair labor practices within the meaning of Section 8 (4) of the Act. AND IT IS FURTHER ORDERED that the petition for investigation and certification of representatives filed by Amalgamated Clothing Workers of America be, and it hereby is, dismissed.