Fox-Coffey-Edge Millinery Co., Inc.

In the Matter of FOX-COFFEY-EDGE MILLINERY Co., INC. and UNITED HATTERS, CAP AND MILLINERY WORKERS' INTERNATIONAL UNION, LOCAL 57 Cases Nos. C-783 and R-767.-Decided February 21, 1940 Millinery Manufacturing Industry-Interference, Restraint, and Coercion: posting anti-union bulletin ; expressed opposition to labor organization ; persuad- ing employees to refrain from joining union ; anti-union petition, circulation among employees ; membership and participation in association of employers engaged in blacklisting discharged union members; charges of, by participation in activities of two employers' associations dismissed because of insufficient evidence ; ordered to cease and desist from blacklisting union members-Dis- crhnination,: discharges : for union membership and activity ; to discourage mem- bership in union-Retnstatemvnt Ordered-Back Pay: awarded : from date of discharge to date of reinstatement or offer of reinstatement-Collective Bargain- ing: charges of refusal to bargain collectively dismissed, upon failure of proof of majority representation-Investigation of Representatives: controversy con- cerning representation of employees: controversy concerning appropriate unit; employer disputes claim of majority representation-Unit Appropriate for Col- lective Bargaining: all production employees, including blockers, cutters (by hand and machine), operators, trimmers, makers, part-time designers who are also engaged in production work, the women who work on hat blocks,,and the assistant cutters, excluding foremen and floorladies, full-time designers, errand girls, order fillers, ticketers, salesgirls, the shipping department, the office em- ployees, and inspectors-Representatives: proof of majority representation found insufficient-Election Ordered: election to be conducted at such time as the Board shall in the future direct. Mr. Warren Woods and Mr. L. N. D. Wells, Jr., for the Board. Wilson, Ogden & Reichmnan, by Mr. George O. Wilson, of Dallas, Tex., for the respondent. Mr. Jim Guthrie, of Dallas, Tex., for the Union. Mr. Howard S. Friedman, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 22, 1937, and August 20, 1937, United Hatters, Cap and Millinery Workers' International Union, Local 57, herein called the 20 N. L. R. B., No. 66. 637 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, filed charges with the Regional Director for the Sixteenth Region (Fort Worth, Texas) charging that the Fox-Coffey-Edge Millinery Company, Inc.,' Dallas, Texas, herein called ..the respond- ent, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On August 17, 1937, a petition was filed with the said Regional Director by United Hatters, Cap and Millinery Workers' Inter- national Union, herein called the International Union, on behalf of the Union, alleging that a question affecting commerce had arisen concerning the representation of employees.of the respondent, and requesting an investigation and certification of representatives, pur- suant to Section 9 (c) of the Act. On September 11, 1937, 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 of the question concerning representation and authorized the Regional Director to conduct it and to provide for an appropriate hearing on due notice. At the same time the Board, acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of said National Labor Rela- tions Board Rules and Regulations, ordered the cases against the respondent consolidated for purposes of hearing with certain other cases involving other millinery manufacturers in Dallas, Texas.2 Upon the charges, the Board, on September 18, 1937, by Edwin A. Elliott, Regional Director for the Sixteenth Region, duly issued its complaint alleging that the respondent had engaged in and was engag- ing in unfair labor practices within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. The complaint and accompanying notice of hearing thereon and on the petition were duly served upon the respondent and the Union. With respect to the unfair labor practices the complaint alleged, in substance, (1) that the respondent discharged and refused to rein- state Mingo Scott, O. L. Cantrell, Mrs. Theda Sledge, Miss Mossie Crofford, Mrs. Naomi Courtlier, Mrs. Billie Roberts, and Miss Mildred Crofford, because of their membership in the Union, thereby discrimi- nating against them in regard to hire and tenure of employment and discouraging membership in the Union; (2) that the respondent on 1 The respondent was incorrectly designated in the complaint and in the pleadings as Fox-Coffey-Edge Millinery Co., Inc., and as Fox -Coffey-Edge Co. a The following cases were included in the Order of Consolidation : Goldstein Hat Manufacturing Company, XVI-C-77 and XVI-R-51 (R-.349) ; M. Bierner & Son, XVI- C-122 (C-767) ; Em-Bee Hat Mfg. Co., Inc., XVI-C-74 ; Block-Friedman Company, XVI-C-76 (C-766 ) ; and Gold-Claire Hat Manufacturing Company, XVI-C-149. Separate disposition was made of each of these cases. FOX-COFFE`Y-EDGE MILLINERY COMPANY, INC. 639 August 12, 1937, and thereafter refused to bargain collectively with the Union as the exclusive representative of the employees of the respondent within an appropriate unit although the Union had been designated as their representative by a majority of such employees; and (3) that the respondent by the above acts, by inducing certain persons in the city of Dallas, Texas, to interfere with, restrain, and coerce its employees in the exercise of their rights guaranteed in Sec- tion 7 of the Act, by participating in the activities of certain organi- zations in Dallas in the preparation and dissemination of anti-union propaganda, and by other specified acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On September 27, 1937, the respondent filed a motion to dismiss the complaint on the grounds, (1) that the Board was without jurisdiction, and (2) that the complaint was not in accordance with the charges and therefore not in conformity with the provisions of the Act nor filed in accordance with National Labor Relations Board Rules and Regu- lations-Series 1, as amended. The Trial Examiner made no ruling on this motion at the hearing but subsequently denied it in his Inter- mediate Report. His ruling is hereby affirmed .3 Subject to the reser- vation of its rights on the motion to dismiss, the respondent, on Sep- tember- 27, 1937, filed in answer to the complaint in which it denied that the Act was applicable to it on the ground that its business did not come within the terms "commerce" and "affecting commerce" as defined in the Act, denied the commission of any unfair labor practices, and pleaded affirmatively that it had discharged the employees named 3 One ground assigned in the motion to dismiss , namely, that the complaint was not in accordance with the charges , was stated in general language and did not specify in what respect the complaint differed from the charge. It is apparent , however, from the respondent's objections to the introduction of evidence during the course of the hearing that the respondent was referring in part to the allegations of paragraphs 13, 14, and 15 of the complaint concerning the respondent's participation through the Dallas Millinery Council, the Dallas Chamber of Commerce , and the Dallas Open Shop Associa- tion in concerted activities to interfere with , restrain , and coerce its employees in the exercise of their rights guaranteed by Section 7 of the Act. The respondent's motion and subsequent objections to certain evidence are apparently based upon the theory that the complaint and the proof introduced thereon are strictly limited to matters specifically set forth in the charges . In this the respondent is in error . The function of the charge is to call the attention of the Board to the fact that certain unfair labor practices are alleged to have been committed . It is not essential that the charge describe the alleged unfair labor practices with the same particularity as the complaint . The issues in the case are based upon the allegations of the complaint rather than those of the charges. Matter of Lone Star Bag and Bagging Company and Textile Workers Organizing Com- mittee, 8 N. L. It. B. 244. The complaint in the instant case sets forth clearly the allega- tions under consideration . The respondent made no claim at the hearing that it was unable to meet these issues nor did it make any motion to make the pleadings more specific. By its answer it indicated that it was fully aware of the issues raised by paragraphs 13, 14, and 15 of the complaint and was prepared to meet these allegations. Under the circumstances the respondent was in no way prejudiced in its defense by the fact that the charges were not amended at the hearing to include these matters. See also N. L. R. B. v . National Licorice Co., 104 F. ( 2d) 655 ( C. C. A. 2), enforcing as modified Matter of National Licorice Company and Bakery and Confectionery Workers International Union of America, Local Union 405, Greater New York and Vicinity, 7 N. L. It. B. 537, cert. granted October 9, 1939. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the complaint for the reason that their work was unsatisfactory. On the same day the respondent also filed an answer to the petition in the representation case in which it denied the allegations set forth therein. Pursuant 'to notice, a hearing on the consolidated cases involving this respondent was held in Dallas , Texas, on September 30, October 1, 2, 4-9, 11-13, and November 16, 1937, before William H. Griffin 4 the Trial Examiner duly designated by the Board. The Board, the re- spondent, and the Union were represented by counsel and all partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence bearing upon the issues was afforded to all parties. At the commencement of the hear- ing on September 30, 1937, the charges and pleadings in each of the consolidated cases were introduced in evidence .5 George O. Wilson and Emil Corenbleth appeared on behalf of the various respondents whose cases were still pending under the Order of Consolidation. Both attorneys entered oral objections to the Order of Consolidation issued by the Board and contended that the order was improperly entered without notice to them and was prejudicial to the rights of their respective clients. The Trial Examiner overruled the objections to the Order of Consolidation and ruled • that the record in each case heard under the consolidation order would be separate and distinct and that both counsel were at liberty to remain at the hearing and participate to any extent that they saw fit. We find that the respond- ent was in no way prejudiced in its defense by the consolidation order, or by these rulings of the Trial Examiner , which are hereby affirmed. Each case was heard seriatim with leave granted by the Trial Exam- iner to the Board's attorney to introduce in any case evidence which has been presented in any other of the consolidated cases and with leave to counsel for the respective respondents to cross-examine wit- nesses testifying to such evidence so introduced. During the course of the hearing counsel for the Board moved to dismiss the allegations of the complaint with respect to Miss Mildred Crofford for the reason that she failed to appear at the hearing although duly notified thereof. This motion was allowed by the Trial Examiner . During the hear- ing the Trial Examiner made various rulings on other motions of the parties and on objections to the admission of evidence . The Board - 'The name of the Trial Examiner was incorrectly designated as William H. Griffen in the Order of Designation. s The Board at this time also was given leave to amend the complaint in this case by adding to it the name of Joseph Bembenek, who was alleged to have been refused rein- statement by the respondent because of his union membership , following a current labor dispute. This amendment was allowed by the Trial Examiner but during the hearing in this case, upon the request of Bembenek , the charge was withdrawn and a motion by the Board to withdraw the amendment and dismiss the complaint as to him was granted by the Trial Examiner . The ruling of the Trial Examiner is hereby affirmed. FOX-COFFEY-EDG'E• MILLINERY COMPANY, INC. 641 has reviewed all such rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On July 11, 1938, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all the parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recom- mended that the respondent cease and desist from its unfair labor practices and take certain specified affirmative action to effectuate the policies of the Act, but recommended that so much of the complaint as relates to the refusal to bargain in violation of Section 8 (5) of the Act be dismissed. In his Intermediate Report the Trial Examiner denied certain motions upon which he had not ruled during the hear- ing. The Board has reviewed these rulings of the Trial Examiner and finds that no prejudicial errors were committed. His rulings are hereby affirmed. Exceptions to the Intermediate Report were thereafter filed by the respondent. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on Septem- ber 20, 1938. The respondent was represented by counsel and par- ticipated in the argument. The Union filed no exceptions to the Inter- mediate Report nor did it avail itself of the opportunity to present oral argument. Neither the Union nor the respondent submitted a briefs The Board has considered the exceptions of the respondent and its argument thereupon, and finds the exceptions, save as con- sistent with the findings, conclusions of law, and order set forth below, to be without merit: Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, a Texas corporation, is engaged in the manufacture and sale of ladies' hats and millinery in Dallas, Texas. The business of the respondent is seasonal and it employs on the average approxi- mately 90 persons. The principal raw materials used by the respondent are fur or wool felt, silks, and ribbons. Ninety per cent of. these raw materials are purchased outside the State of Texas. The respondent also manu- factures straw hats from straw braids which are produced in foreign countries and imported by merchants in New York who resell them to the respondent. The respondent filed with the Board a written statement of its oral argument which the Board has considered. 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The gross sales of the respondent in the fiscal year ending Novem- ber 30, 1936, were in excess of $300,000, with sales outside the State of Texas exceeding 33 per cent of this total. Sales outside the State of Texas for the first 9 months of 1937 constituted approximately the same proportion of total sales. H. THE ORGANIZATION INVOLVED Local 57, a subsidiary of United Hatters, Cap and Millinery Workers' International Union which is affiliated with the American Federation of Labor, is a labor organization. It was chartered as a local union by United Hatters, Cap and Millinery 117orkers' Inter- national Union on September 8, 1936. It admits to its membership employees in the productive branch of the millinery industry. III. THE UNFAIR LABOR PRACTICES A, Backgrownd of the unf air labor practices In the early part of 1935, Max Zaritsky, president of the Inter- national Union, received several letters from millinery workers in the Dallas area requesting that he send an organizer to Dallas for the purpose of forming a union. Shortly thereafter, George Baer, an organizer, was sent to Dallas by the International Union for that purpose and conducted a meeting which was attended by approxi- mately 100 workers. Thereafter, Baer left Dallas and organizational work was continued by the local workers until June or July 1936, when at their request Baer was permanently stationed in Dallas by the International Union. On September 8, 1936, some 40 or more millinery workers, including several employees of the respondent, went to Fort Worth, Texas, where the Union was granted a charter by the International Union. B. Interference,, restraint, and coercion (1) The activities of the respondent The respondent was well aware of the activities and membership of the Union from its inception in September 1936. Fox, the vice president and general manager of the respondent, stated at the hear- ing that he "had a pretty fair knowledge of who belonged to the Union" and "could have put my hand on everyone of them's head. They knew it too." The respondent. utilized this admitted knowl- edge and took steps to resist the unionization of its employees. In late September or the early part of October 1936, the respond- ent posted on the bulletin boards on the fifth and sixth floors of its factory the following notice : FOX-COFFEY-EDGE MILLINERY COMPANY, INC. 643 "BULLETIN" It has come to my attention that certain people who are at- tempting to organize a union in this city have called upon some employees of this firm and have told them it would be necessary to join this Union in order to hold their positions.. That if you did 'not join now you could not join later and would lose your position. -This is to inform every employee that the above is a false statement and should be ignored by all employees. Furthermore this is to advise that this firm will under no circumstances sign a contract with any union and will continue to operate as an "Open Shop." As in the past all employees who properly con- duct themselves and are loyal to this institution will be given every consideration and protection within our power. The undersigned will be glad to discuss this matter with any employee. Fox kept the bulletin prominently posted in the factory and testified at the hearing that the bulletin was still posted in the factory and was "going to stay there." 7 Although the stated purpose of the notice was to inform the respondent's employees of the falsity of alleged representations made to them by undisclosed persons interested in forming a union, the language and intent of the notices far exceeded that scope. The respondent did not confine the notice to a simple denial of the truth of the alleged representations but utilized the occasion to convey unmistakably to its employees its hostility to the Union and to dis- courage affiliation with it. The respondent first emphasized that there was no necessity for them to join the Union, then announced a fixed determination that "under no circumstances would it sign a contract with any union," thus eliminating one of the most important incentives to such membership and rendering futile a common and legitimate objective of labor organizations; 8 and, finally, assured its 7 The respondent persisted in this action despite a warning by the Regional Director in the summer of 1937 during the course of his preliminary investigation of the charges that the bulletin might be construed as a violation of the Act. eSee N. L. R. B. V. Jones and Laughlin Steel Corporation , 301 U . S. 1, 43-4 (1937), rev'g 83 F. (2d) 998 (C. C. A. 5 ), and enf'g Matter of Jones a Laughlin Steel Corporation and Amalgamated Association of Iron, Steel & Tin Workers of North America, Beaver Valley Lodge No. 200: Employees have their ( correlative ) right to organize for the purpose of securing the redress of grievances and to promote agreements with employers relating to rates of pay and conditions of work. N. L. R, B. v. Sands Manufacturing Co., 306 U. S. 332, 342 ( 1939 ), aff'g 96 F. (2d) 721 (C. C. A. 6 ) which reversed Matter of The Sands Manufacturing Company and Mechanics' Educational Society of America, 1 N. L. R. B. 546: The legislative history of the Act goes far to indicate that the purpose of the statute was to compel employers to bargain collectively with their employees. to the end that employment contracts binding on both parties should be made. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees who "properly conduct themselves and remain loyal" as "in the past" every consideration and "protection" against what could only have meant the Union. That this statement had the effect upon the employees intended by the respondent is attested by the testimony of a number of employees who were not union members.9 We find that the posting of the bulletin constituted a plain expres- sion of the respondent's hostility toward the Union and interfered with, restrained, and coerced the respondent's employees in the exercise of their rights guaranteed by Section 7 of the Act.1° About the middle of October 1936, soon after the posting of the bulletin, Fox ordered his foreman to instruct the male employees to assemble in the showroom of the factory after working hours. Fox spoke to the 18 male employees for half an hour. Carl Long, one of the men who heard the speech, testified that Fox told them of the results of his experience with a union in St. Louis; that he claimed that the union there had cut off the power and run his place of busi- ness; and that he stated that he would not stand for any outsider coming in and telling him how to run his business. According to Long, "he (Fox) was against the Union as far as his part, but he didn't tell us we couldn't join." Long, who was called as a witness by the respondent, was not in the employ of the respondent at the time of the hearing, nor was he then a union member; consequently his testimony may be regarded as that of a disinterested witness. We find that Fox made the foregoing statements attributed to him by Long. This testimony is supplemented by that of various union members who testified that Fox stated that it was his business, that he would not have the Union running it, that he would not recognize the Union, that he could get all the money to fight the Union that he wanted, and that he would fight the Union any way that he could. We find that Fox made these statements. Fox does not deny specifi- cally the foregoing statements but states that he did not tell the men that they could not join the Union or that they would lose their jobs if they did and explains that his employees had asked him about joining the Union, that he had heard of the "misrepresentations" by the union organizers, that it was his purpose to correct these mis- representations, and that he was familiar with the rights of his 9 Lila Mitchell, a designer , testified that from reading the bulletin she thought that Fox did not want a union inside the plant ; May Alford, a trimmer, testified that the bulletin meant that Fox "would stand by his help . . . in every way . . . (arid) not let the Union control his business." Numerous other employees testified that they subsequently signed a petition indicating that they were not union members in order to express their loyalty to the respondent and that they believed that anyone who joined the Union was not loyal. i° See Matter of Nebel Knitting Company, Inc. and American Federation of Hosiery Workers, 6 N. L. R. B. 284, enf'd as mod. N. L. R. B. v. Nebel Knitting Company, Inc., 103 F. (2d) 594 (C. C. A. 4) ; Matter of Titmus Optical Com-panv"and Optical Workers Union Local No. 20682, 9 N. L. R. B. 1026; Matter of Goshen Rubber and Manufacturing Company and United Rubber Workers of America, Local j$I24, 11 N. L . R. B. 1346. FOGS-COF'F'EY-EDGE 2K1LLINERY COMPANY, INC. 645 employees while they were not.. Even if we were to credit Fox's explanation of his motive, which we do not, it would not alter our conclusion that this speech made while the Union was carrying on its organizational campaign among the employees necessarily deterred them from exercising freely their right to self-organization.71 We find that by Fox's speech the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent's outspoken opposition to the Union was followed by the discharge on October 30, 1936, of two active union members, O. L. Cantrell and Mingo Scott.1' - At various times during the fall of 1936, Mrs. Hallie Stubblefield, floorlady of the sixth floor, questioned Mrs. Diebel, a machine oper- ator ,13 about the activities of the Union and inquired whether Mrs. Diebel was attending union meetings that were being held. Mrs. Stub- blefield told this employee that "she didn't think that there would be any good come of it, that they were just promising something that we would never get." We find that by interrogating Mrs. Diebel concerning union affairs and her participation therein and by dis- paraging the Union the respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act. The Union held no open meetings until August 1937 but continued its organizational work among the employees through individual solicitation. Between January 28, 1937, and February 1, 1937, the respondent discharged Mrs. Theda Sledge, Miss Mildred. Crofford, Miss Mossie Crofford, Mrs. Billie Roberts, and Mrs. Naomi Courtlier, all members of the Union.14 On August 5, 1937, the first open meeting of the Union was held at the Jefferson Hotel in Dallas. Approximately 125 persons, in- cluding employees of the respondent, attended the meeting, which was addressed by Baer and Zaritsky. It was decided to draw up demands to be presented to the millinery manufacturers, including the respondent. 11 See Matter of Nebel Knitting Company , Inc. and American Federation of Hosiery Workers, 6 N. L. R . B. 284, enf 'd as mod . N. L. R. B. V. Nebel Knitting Company, Inc., 103 F. (2d) 594 (C. C. A. 4) ; Arthur L. Colten and A. J. Colman., copartners, doing business as Kiddie Kover Manufacturing Company and Amalgamated Clothing Workers of America, 6 N. L. R. IS. 355, enf'd N. L. R. B. v. Arthur J. Colten, etc., 106 F. (2d) 179 (C. C. A. 6) ; Matter of Lindeman Power and Equipment Company and International Association of Machinists, 11 N L . R. B. 868 ; Matter of Mexia Textile Mills and Textile Workers Organizing Committee, 11 N. L. R. B. 1167. "These discharges are discussed in detail in Section C, (1), infra. 18 At that time Mrs. Diebel was not a member of the Union but she joined sometime after Easter 1937. 14 These discharges, except that of Miss Mildred Crofford , are discussed in detail in Section C, (2), infra. 283031-41-vol. 20-42 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 9, 1937, Baer was assaulted and kidnapped,15 upon leav- ing the office of Bierner, one of the Dallas millinery manufacturers, after attempting unsuccessfully to arrange a collective bargaining conference with the manufacturers. When this incident occurred, a strong strike sentiment developed among the union workers. On August 11, 1937, a mass meeting of the male union members was held and a proposal was submitted to call a strike immediately and with- out warning because of the assault on Baer. Zaritsky, who returned to Dallas that day, prevailed upon those present to defer a strike pending a further attempt by the Union to bargain collectively with the manufacturers. On August 12, 1937, the Union sent identical letters to each of the manufacturers, in which the Union claimed to represent a majority of the particular manufacturer's employees, re- quested recognition as exclusive bargaining agent, proposed the estab- lishment of certain wages, hours, and working conditions, and suggested the setting up of an arbitration board in the industry.l" On the same day that the Union sent one of the afore-mentioned letters to the respondent, a group of five of the respondent's- female. employees working on the fifth floor left their work during working hours and prepared the following petition :17 To Employes* of Fox Coffey Edge, We, the undersigned employees of Fox Coffey Edge of Dallas Texas, do this day do* declare ourselves free and independent employees of said factory in so much as we are highly pleased with the present working conditions and management of said factory. We petition this Company for whatever protection it may afford us in our employment that such conditions may con- tinue to exist, and if there be any foreign Elements or C. I. O. agitors* in this factory that such be not premitted* to exist that we may be premitted* to e* serve this Company un- * So in the original. 16 The Baer incident is discussed, infra. We make no finding that the respondent was responsible for it but set it forth merely as part of a sequence of events. 10 The alleged refusal to bargain is treated in Section III D, infra. 11 The five employees met in the women's washroom on the fifth floor. All of them were aware that a strike was imminent. Most of them claimed that their only purpose In composing the petition was to express their loyalty to the respondent but one stated that she did it to find out who belonged to the Union and who did not. Alma Nanny, a maker and designer, wrote out the petition in longhand and four other employees, Mrs. J. B. Johnson, a designer, Ann Jones, a cutter, Cora Kidd, a maker, and Edna Mye, a maker, were present and aided in its composition. While the authors claim that the document was composed by writing down the various phrases suggested by each, no one could recall authorship of any particular phrase except for one woman who testified that she suggested the opening phrase "We, the undersigned employees of Fox Coffey Edge." These employees denied knowledge of any similar petition, yet the phraseology used is practically identical with that used in a petition, which is in evidence, which had been circulated a few days prior to this one among the employees of the D & B Pump & Supply Company in Dallas. See Matter of Enasco Derrick and Equipment Company (D of B Division) and Steel Workers Organizing Committee, 11 N. L. It. B. 79. FOX-COFFEY-EDGE MILLINEd1.Y COMPANY, INC. 647 biased by outside labor influence where as this factory may continue to operate as business premits.* The petition was openly circulated during working hours by a different person on each of the two production floors of the respond- •ent's factory and in some instances was passed from one employee to another. Forty-six employees signed the petition. The circula- tion on the sixth floor took place in the presence of Hallie Stubble- field, the forelady in charge of that floor, who signed the petition. On the fifth floor an announcement was made by one of the authors ,of the petition that a petition would be circulated and that the em- ployees should sign it if they wished. There is a conflict in the evi- dence as to whether or not Mrs. Parks, the forelady in charge of that floor, was present when the petition was circulated. One em- ployee stated that she was present part of the time while others stated that she was not there. Mrs. Parks did not testify 1s and her asserted absence from the floor during the composition and cir- culation of the petition is not satisfactorily explained since these events must have occupied a considerable time. Moreover, when the signing was completed, Mrs. Parks delivered the petition on the next day, August 13, to Arnold, an officer of the respondent. We find that the petition was prepared and circulated on the fifth floor with Mrs. Parks' knowledge and approval. We hold that the re- spondent is responsible for the acts of its supervisory employees in connection with the petition."' We find that by permitting employees to leave their work to prepare the anti-union petition and to circulate it in the plant during working hours, by Floorlady Stubblefield's signing it, and by Floorlady Parks' delivery of it to an officer of the concern, the respondent approved and ratified it; that by this conduct the respondent again brought its pressure to bear upon its em- ployees 20 to refrain from affiliating with or acting through an out- side organization at a time when employees were seeking to bargain collectively through the Union; and that the respondent thereby in- *So in the original. 18 There was no showing that Mrs. Parks was unavailable. 10 See N. L. R. B. v. A. S. Abell Co., 97 F. (2d) 951 (C. C. A. 4), enf'g as mod . Matter of The A. S. Abell Company, a corp. and Int. Printing and Pressmen's Union, Baltimore Branch, Baltimore Web Pressmen's Union No: 31, 5 N. L. R. B. 644; Swift & Co. v. N. L. R. B., 106 F. (2d) 87 (C. C. A. 10 ), enf'g as mod . Matter of Swift & Company, a corp. and Amal. Meat Cutters & Butcher Workmen of North Amer., Local No . 641, and United Packing House Workers Local Industrial Union No . 300, 7 N . L. R. B. 269; Titan Metal Manufacturing, at at. v. N. L. It . B., 106 F. (2d), 254 (C. C. A. 3). enf'g Matter of Titan Metal Manufacturing Company and Federal Labor Union No. 19981, 5 N. L. R. B. 577. 28 The respondent called to the witness stand every signer of the petition who was still in its employ . All but Alma Nanny, one of the authors of the petition and Stubblefield, the forelady , testified that they had signed It voluntarily without coercion by the re- spondent's officers and agents. To view of our findings concerning the respondent 's prior unfair labor practices and the circumstances surrounding the signing of the petition we can afford little weight to this testimony. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act.21 On August 14, 1937, a strike began at the respondent's factory, which continued until September 7, 1937 .21 Approximately 27 em- ployees went out on strike but the factory continued to operate. After the strike terminated, the respondent rehired most of the strikers although several, including two members of the bargaining committee, were not rehired.23 (2) Participation by the respondent in employer's associations The complaint alleges in substance that the respondent by inducing certain persons in the city of Dallas to interfere with, restrain, and coerce its employees in the exercise of the rights guaranteed by the Act, and by participating in the activities of the Dallas Millinery Council, the Dallas Open Shop Association, and the Dallas Chamber of Commerce, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We shall consider these allegations. (a) The Dallas Millinery Council The Dallas Millinery. Council, herein called the Council, was organized in Dallas during 1933 or 1934. The exact number of em- ployers who were members of the Council at any particular time is not established but the evidence indicates that its membership includes practically all of the millinery manufacturers of Dallas.24 The re- spondent is a member of the Council and Fox is president of the organization. At the time of the hearing the Council was governed by bylaws which had been in effect since the fall of 1936. Section IX of the bylaws provides : It shall be the duty of members, when any person leaves their employ to imutnediately give the name of such employee to a 21 See Arthur L. Cotten and A. J. Colman, co-partners, doing business as Kiddie Kover Manufacturing Company and Amal. Clothing Workers of Amer., 6 N. L. R. B. 355, enf'd 105 F. ( 2d) 179 (C.,C. A. 6 ) ; Matter of Goshen Rubber and Manufacturing Company and United Rubber Workers of Amer. , Local #12ij, 11 N. L. It. B. 1346 ; Matter of Emsco and Equipment Company (D & B Division) and Steel Workers Organ. Comm., 11 N. L. R. B. 79; Matter of Harlan Fuel Confpany and Unlited Mine Workers of Amer., District 19, 8 N. L. It. B. 25. The details of the failure of collective bargaining efforts which led to the strike are omitted for reasons stated in Section III D, infra. 25 There is no issue under the pleadings with respect to the nonreinstatement of any of the strikers. 24 There are approximately 21 millinery manufacturers in Dallas. The number fluctuates as various manufacturers go in and out of business. There were IS members of the Counsel at the time of the adoption of bylaws in the fall of 1936, including all 6 respondents - in these consolidated cases. Gold -Claire Hat Manufacturing Company, one of, the respondents whose case was settled prior to hearing , and four other millinery manufacturers were listed at the time of the hearing as not now members." The date of their withdrawal is not indicated. FOX-COFFEY-LDGE MILLINERY COMPANY, INC. 649 central office which the Council shall establish for the assistance of other employers who may be in need of their services and for the assistance of employees in their search of work. The names of new employees to the market shall be made available when the member firms cannot employ them, so that the employee may be assisted in finding employment. (Italics ours.) While ostensibly the purpose of this provision of the bylaws is to assist employees in obtaining other employment we are satisfied upon this record that it was in fact utilized as a "blacklisting" device 25 to prevent union employees from obtaining other employment with millinery manufacturers in the Dallas area. Fox testified that "he could not say" whether the names of any of the employees discharged in February 1937 were reported to the Council but his testimony indi- cates that the practice of reporting the names of discharged employees was carried on for a period of time after the passage of the Council's bylaws in the fall of 1936.26 Fox's failure to deny an act of such unequivocal nature coupled with the experience of some of the re- spondent's discharged employees in attempting to secure other em- ployment in the Dallas millinery industry convinces us that the re- spondent did report to the Council the names and union affiliation of the employees discharged by it from the time of the adoption of the Council's bylaws at least until after the discharges effected about February 1, 1937, and we so find. Scott 27 testified that he sought employment "at the hat factories in Dallas" and named two members of the Council where his efforts to obtain employment were unsuccessful. At one of these places he was told that the firm might be able to employ him and that he should return the next day. The following day Scott informed his prospec- tive employer that he had formerly been employed by the respondent. He was subsequently told that there was no job available for him. The testimony of two of the women discharged by Fox early in 1937 establishes that they were unable to obtain employment with any of the members of the Council although the places where they sought employment seemed to indicate that there were positions available until questioning elicited from them that they had formerly been employed by the respondent.28 22 See ".Governmental Protection of Labor's Right to organize," National Labor Rela- tions Board, Division of Economics Research (p . 13), where the current usage and effect of the blacklist is described. 26 The adoption of the Council's bylaws in the fall of 1 936 was apparently coincident with the respondent's interference with its employees' efforts to organize, discussed supra, III, B, ( 1), and the discharges of Cantrell and Scott at the end of October 1936 discussed, infra, III, C, (1). 27 Scott and Cantrell were discharged on October 30, 1936, Section III, C, ( 1), infra. ^ Theda Sledge and Mossie Crofford testified that they tried. to obtain work "at every wholesale millinery place in Dallas ." Each specifically named several members of the Council at which she sought employment . Mrs. Billie Roberts indicated that she worked 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Several other considerations lead us to conclude that the respondent's discharged. employees were victims of the blacklist. None of them secured employment in the millinery industry during the busy season prior to Easter of 1937, although it is uncontroverted that there is always a- scarcity of experienced millinery workers in Dallas during the busy seasons and that at such times there is usually keen compe- tition among the various employers to secure trained help. Moreover, Oscar L. Cantrell testified without contradiction, and we find, that at the time lie was discharged in October 1936 lie was told by his fore- man that Fox had said to the foreman that neither lie (Cantrell) nor Scott would ever work "in the millinery" again.29 Fox claimed that the practice of sending names to the Council was abandoned but stated that he did not know just when that occurred. The record establishes that during July and August 1937 several union members discharged by Fox were hired by members of the Council and apparently the employers ceased their blacklisting activi- ties at about this time .30 We find that the respondent by the use of the facilities of the Dallas Millinery Council has taken part with other millinery manufacturers in the city of Dallas in the blacklisting of union members and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.. (b) The Dallas Open Shop Association The respondent is a member of the Dallas Open Shop Association, herein called the Association. There is insufficient evidence to support a finding of interference by the Association with the rights of the respondent's employees guaranteed by the Act and we will dismiss the allegations of the complaint with respect thereto. .(c) The Dallas Chamber of Commerce There is no evidence to indicate that the respondent was a member of the Dallas Chamber of Commerce or that it participated in any of for 2 weeks for a firm which the record indicates was "dropped from the Council" and that she "tried several places" before she obtained a position outside of the millinery industry . The testimony of Naomi Courtner indicates that for a long period of time following her discharge she was employed in the millinery industry for only 9 days and that this was for an employer who was not a member of the Council. There is no evidence, however, to indicate any attempts by Mrs. Courtner to obtain employment with members of the Council. zs Cantrell' s testimony does not indicate whether or not he attempted to obtain employ- ment with other members of the Council after his discharge but his subsequent employ- ment in the millinery industry was with a firm which was not a member of the Council. ' The respondent in its exceptions filed to the Intermediate Report states that the conclusion of the Trial Examiner that a blacklist was maintained by the Council and the Dallas Open Shop Association " is based only on . . . imagination ." In view of our findings heretofore set forth the respondent 's contention with respect to the Council is without merit. We make no finding with respect to the Dallas Open Shop Association. See intro. FOX-COFF EY-EDGE MILLINEStY COMPANY, INC. 651 the activities of that organization and we will dismiss the allegations of the complaint with respect thereto. (d) The assault on Baer On August 9, 1937, Baer called on Bierner, one of the members of the Council, in connection with the Union's efforts to secure a joint meeting with all the millinery manufacturers in Dallas. Bierner advised Baer that he would consult Fox, whose office was nearby. Bierner met Fox on the ground floor of the respondent's building, spoke to him, and then returned to his own office where he advised Baer that the millinery manufacturers would not agree to meeting the Union as a group. As Baer left Bierner's factory he was attacked by three men and beaten severely. His attackers then forced him into an auto- mobile and carried him to the outskirts of the city where he was thrown out. While there is testimony that several persons at the scene of the attack took the license number of the automobile in which Baer was kidnapped and that two men were arrested in connection with the assault, there is no proof in the record to establish either the ownership of the automobile or the identity of the attackers. Baer's testimony, as introduced by deposition, indicates that he did not know the iden- tity of his attackers. While the circumstances surrounding this attack, including the time and location of the occurrence, indicate that the assault was connected with Baer's organizational activities among the millinery employees, there is insufficient evidence that the respondent or any of the employer's associations to which it belonged was re- sponsible for this attack. We, therefore, make no finding with respect to the attack on Baer. C. The discharges (1) The discharges of Oscar L. Cantrell 31 and Mingo Scott On October 30, 1936, the respondent discharged two experienced employees, Oscar L. Cantrell and Mingo Scott.32 Cantrell joined the Union in September 1936 and Scott joined in August 1936.33 Both had attended the Union's charter meeting at Fort Worth in Septem- ber 1936, and were present when Fox made his anti-union speech to the male employees at about the middle of October. We find that the respondent knew of Cantrell's and Scott's union membership and activities prior to and at the time of their discharge.34 3' This employee was designated in the complaint as 0. L. Cantrell. 82 At this time there were 18 men employees engaged in blocking and related operations. Of this number not more than nine, including Cantrell and Scott, were members of the Union. 33 Scott was one of the first members of the Union in the Dallas area and on various occasions escorted several of the respondent's employees to meetings held at tthe home of the union organizer. 31 See Fox's admission of such knowledge, Section III, 13, (1), supra. a 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Oscar L. Cantrell began to work for the respondent in June 1935, having previously been employed in the millinery industry for about 7 years. Cantrell worked at both blocking and buffing. He was the only one in the employ of the respondent who did both jobs. The blocking operation consists of steaming the felt body of the hat and stretching it over a hot metal block until it assumes the desired shape. After an intermediate operation of sanding which leaves the hat covered with dust, the buffer removes the dust and runs the hat over compressed felt to "finish" it. Just prior to his discharge. Cantrell was working as a blocker. Two months prior to his discharge Can- trell's salary was raised from $18 to $25 per week. On October 30, 1936, Fred Brown, the respondent's foreman, in- formed Cantrell that there was no work for the next day, and upon the latter's inquiry as to when there would be work told him that lie should come back in a day or so. Cantrell returned the next day and Brown told him that he did not have a job there anymore. There is a conflict in the evidence concerning the remainder of their con- versation on that occasion. Cantrell testified that he asked Brown the reason for his discharge; that Brown stated that he did not know the reason for it; that Cantrell's work was satisfactory but that he was being dismissed on Fox's orders; that he [Cantrell] pressed Brown as to, the reason for the discharge and that Brown said, "Fox told you down at the meeting how to keep your job" and mentioned "tlie boys who went to Fort Worth." 35 Brown denied ever telling Cantrell that he could not join a. union or that he would be discharged if he joined a union, but did not deny the specific statements attributed to him by Cantrell. Brown testified that Cantrell spent 30 to 40 minutes ex- plaining to him that he was as good as other workers and that there was a friendly discussion between them "on what a man should do and should not do." The absence of a specific denial by Brown, as well as his equivocal explanation of the conversation which took place, con- vince us that Cantrell's testimony concerning the conversation is accurate and we find that it occurred as he recounted it. After his conversation with Brown, Cantrell attempted to see Fox, but was told by Fox's secretary that lie was busy. As we have heretofore stated, Brown subsequently told Cantrell that Fox had said that neither he [Cantrell] nor Scott would ever go back to work "in the millinery." Mfing.o Scott entered the respondent's employ about 1931 without previous experience in the millinery industry. Scott worked as a hand blocker. After his first few years in the employ of the respondent, "Cantrell testified on redirect examination that Brown told him that Fox had ordered him discharged for belonging to a union . In its context it appears that this statement represented the witness ' interpretation of the meaning of the statements quoted, to which lie had testified on direct examination , rather than a subsequent statement made to him by Brown in those words. FOX-COFFEY-EDGE- MILLINERY COMPANY, INC. 653 he worked regularly and was never laid off for longer than a few days even during the slack season. Scott's discharge took place on October 30, 1936, the same day that Cantrell was discharged. When Scott received his pay check on that day, he was told by an officer of the respondent that Fred Brown, his foreman, wanted to see hint. Scott testified that Brown told him that Fox had ordered him discharged; that Brown said to him, "I will tell you the truth; I don't know the reason-your work is like the rest of the boys"; and that Brown advised him that if he wished to find out the reason for his discharge he should see Fox. Brown denied these statements and claimed that he told Scott that his work was unsatis- factory and that he had spoken to Fox about him. Since Brown did not give Cantrell any reason for his discharge when the latter was discharged other than the fact that work was slow, and,since Scott promptly sought out Fox to learn the reason from him for his dis charge, we believe Scott's version of the conversation and find that it occurred as he stated. After his conversation with Brown, Scott saw Fox who told him that there was no "particular" reason for discharging hint. Scott asked if he was being discharged because of his work, to which Fox replied "partly"; Scott said, "you know it was not my work." Fox replied "I told you boys how to hold your jobs," apparently referring to his speech to the male blockers about 10 days prior to this date. Scott then attempted to convince Fox that he was not a member of the Union. While Fox denied that he said "I told you boys how to hold your jobs," he did not deny the remainder of the conversation. Since the statement is consistent with Fox's prior warnings to the employees concerning membership in the Union, and since he admittedly knew which ones belonged to the Union, we do not credit his denial and we find that he made the statement. Scott returned a few days later and again tried to convince Fox that he did not belong to the Union. Fox told him that if work picked up he would take him back, but advised him to get another job. In July 1937, Brown called at Scott's home and stated that if lie would talk to Fox lie could have his job back. Scott subsequently called on Fox and was hired by him on or about July 15, 1937, to work at another millinery factory in which Fox was a part owner. The respondent contends that Cantrell and Scott were discharged on October 30 because work was slack and because, for various rea- sons, they were less satisfactory workers than other employees en- gaged in similar operations. The record establishes that the dull season was approaching when these discharges were effected, but it does not substantiate the contention that these two employees were 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD selected for discharge either because of that fact 30 or because of their relatively unsatisfactory work. Brown claimed at the hearing that Cantrell was slow and could not compete successfully with other workers, that Scott wilfully limited his production and had become argumentative, that both Cantrell and Scott had done bad work in the previous season, and that both had been loafing on and off "at times" for 2 years. Can- trell admitted that he had been warned about being slow once in July 1936, and once approximately a month before he was discharged. However, he explained without contradiction that his occasional slow- ness was caused in part by changing from a blocking to a buffing operation 37 and in part by the fact that he was used to instruct other blockers in the factory, which latter fact in itself is indicative of the satisfactory character of his work. Moreover, 2 months prior to his discharge he had received the raise heretofore mentioned. With respect to Scott, Brown stated that he had spoken to him several times about his work but admitted that he found it necessary on occasion to speak to a number of other men blockers concerning their work. His claims concerning Scott's unsatisfactory perform- ance of his duties are further negatived by the fact that Scott was subsequently hired for a similar job in a different establishment in which Fox had an interest. There was no showing other than Brown's unsupported testimony that other employees were more satisfactory than Cantrell and Scott. Brown's identical charges against both of them, namely, bad work in the previous season and occasional loafing, are unconvincing. More- over although Brown testified that he had spoken to Fox several times concerning these employees' asserted shortcomings, the latter makes no reference to any reports of that nature in his testimony. On the con- trary, Fox offered an explanation for Cantrell's discharge which bears no apparent relation to the reasons assigned for it by Brown 38 and he advanced no explanation for Scott's discharge. Under the circum- stances, we find that none of the reasons advanced for the discharge of Cantrell and Scott constituted the actual cause but rather were justi- fications for it in retrospect. 86 Two new blockers hired at about this time were retained despite the seasonal slowness in business . One of them , Robert Genzel, hired on September 16, 1936, had had no previous experience in the millinery industry . The previous experience of the other employee is not indicated. aT Cantrell stated that a different part of the hand is used in these operations and that it required a month in,order to acquire a callous in the right place on his hands to allow him to work efficiently. Is Fox testified , "I think that you might just as well say that I have fired every member of Cantrell's family for the same reason , because the whole family worked for me at one time or another and I have fired everyone of them . . . I just made a mistake when I took one of those Cantrells on again . . . [there was] quite a serious charge against one of them ." The record contains no explanation of what Fox meant by this statement nor any indication of the reason for the discharge of other members of Cantrell 's family. FOX-COFFEY-EDGE MILLINERY COMPANY, INC. 655 Upon all the evidence, but especially in view of the respondent's hostility to the Union, its deliberate efforts to stifle organizational activity among its employees, its admitted knowledge of the Union's membership, Fox's specific warning to the male employees about 2 weeks before the discharges, and the statements made to Cantrell and 'Scott when the discharges were effected, we conclude and find that the respondent discharged Oscar L. Cantrell and Mingo Scott on Oc- tober 30, 1936, because of their union membership and activity; 30 that the respondent thereby discriminated in regard to their hire and tenure of employment, discouraging membership in a labor organiza- tion and interfered with, restrained, and coerced its employees in the exercise of rights gi aranteed by Section 7 of the Act. Cantrell was paid $25 per week salary at the time of his discharge. From the date of his discharge until the time of the hearing he earned approximately $200. At the hearing Cantrell indicated his desire to be reinstated to his former position in the employ of the respondent. Scott was unable for a long period of time to secure other employ- ment in the millinery industry for the reason that the respondent in cooperation with other millinery manufacturers maintained a black- list against union members.40 From the date of his discharge until the time of the hearing he earned approximately $64. At the time of the hearing Scott was employed at the same salary he received from the respondent by a millinery firm which was partly owned by Fox; Scott indicated his desire, howeyer, to be reinstated to his former position in the employ of the respondent. {2) The discharge of Mrs. Theda Sledge, Miss Mossie Crofford, Mrs. Billie Roberts, and Mrs. Naomi Courtner Between January 28, 1937, and February 1, 1937, five women; all of whom were union members, were discharged by the respondent.41 No other employee was discharged at that time. We shall first dis- cuss certain considerations applicable to all these discharges. There were approximately 60 women working on the fifth and sixth floors 42 when these discharges occurred. The major portion of the union's membership among the trimmers was confined to the sixth se During the hearing the respondent appeared to take the position that its failure to discharge other union members establishes that these two discharges were not dis- criminatory . The facts heretofore discussed do not support the inference urged. More- over, the 'discriminatory discharge of two active unionists such as Cantrell and Scott would serve to implement effectively the respondent 's prior warning against union activity given to the male employees without entailing the disruption of operations involved in wholesale discriminatory discharges. '° See Section III, B , ( 2), supra. 41 During the hearing the allegations of discrimination against Miss Mildred Crofford were dismissed without objection. 12 This is according to the respondent 's pay roll of February 5, 1937. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD floor. All the discharged women worked on the sixth floor of the re- spondent's factory and all were trimmers except Miss Mossie Crofford. A few days before these employees were discharged two of them, Sledge and Roberts, spoke to Mrs. Diebel, an employee of the respond- ent, about the Union and offered to take her to see the union organizer about joining. Mrs. Diebel reported this conversation to Mrs. Hallie Stubblefield, the floorlady on the sixth floor. After working hours on the same day Mrs. Diebel observed a group of the respondent's female employees, including Sledge,. Roberts, and Courtner, three of the em- ployees who were subsequently discharged, gathering in the lobby of the respondent's factory to go to a union meeting. The next morning, she reported this to Mrs. Stubblefield. While Mrs. Stubblefield de- nied knowing that the discharged employees belonged to the Union she did not deny that Mrs. Diebel reported these occurrences to her.. In view of these reports, as well as Fox's admission that he knew who was in the Union, we find that the respondent knew of the union'melu- bership and activity of the employees under consideration. Further,. these discharges must be evaluated with reference to the respondent's, persistent and outspoken opposition to the Union as manifested by its. statements and conduct both hereinbefore and hereinafter discussed. The respondent contends that the slack season was the occasion for these discharges and that they were made on the merits of the indi- vidual employees involved. We cannot accept the first contention since the evidence establishes that the discharges took place at the be- ginning of one of the busy seasons in the respondent's business.43 Moreover, as we have heretofore noted, there is a scarcity of trained labor in the millinery industry in Dallas, especially during the busy seasons of the year, and there is usually competition among the manu- facturers to secure the limited supply of experienced help. In connection with the second contention, note should be made of the respondent's failure to produce certain records which would have an important bearing on the discharge of the trimmers who the re- spondent claims were discharged because of unsatisfactory work or slowness in production. The respondent keeps records indicating the number of hats produced by each trimmer and their piece-work earn- ings. No explanation was offered for its failure to produce these records. The respondent's practice is to have the inspector return all hats done improperly to the original trimmer to be redone. It is ap- parent that under this procedure if a great deal of the work of a trimmer was unsatisfactory and had to be done over this condition 13 The millinery business is highly seasonal . The spring busy season begins about the end of January and ends at Easter. The fall busy season includes the months of Septem- ber and October . The dull season occurs after Easter and after "the Christmas rush." Moreover , the .respondent ' s employment records indicate that two trimmers were hired by it on February 1 and several more were hired at about that time. FOX-COFFE'Y-EDGE, MILLINERY COII,PANI, INC'. 657 would be reflected in substantially lower production and lower earn- ings than those of her fellow workers whose work was satisfactory. Mrs. Theda Sledge.-Mrs. Theda Sledge had been employed by the respondent as a trimmer on the sixth floor for over 6 years and during that time had only been laid off for short periods of a few days dur- ing the slack seasons. Her duties as trimmer consisted of attaching the various trimmings and ornaments to the hats in the arrangement indicated by a sample hat. Sometime during the summer of 1936, Fox told Mrs. Sledge that she had better stay away from the taxicab strike which was taking place in Dallas because it might mean her job and that lie would be just like the taxicab owners and would not recognize the Union. De- spite this warning, Mrs. Sledge joined the Union on October 11, and was active in its affairs including the solicitation of members and the using of her car to take employees of the respondent to union meetings. Mrs. Sledge was one of those reported by Mrs. Diebel to Mrs. Stubblefield as engaged in activities in behalf of the Union. On January 28, 1937, a few days after this report, Mrs. Sledge was dis- charged by the respondent. Airs. Stubblefield informed her that Fox wanted to see her in his office. Fox told her that he could not use her any more and that she was discharged. There is a conflict in the evidence concerning the conversation which ensued. Mrs. Sledge testified that she asked Fox if she was being discharged because of her work or her production and was told that these were not the reasons; that she stated to Fox that she wanted to know the reasons for her discharge and that if he was discharging her because he thought she had joined the Union she was not a member; that Fox replied, "We have a way of finding out whether you belong to the Union or not. I am going to tell you just like I told those boys, I will die and go to hell before I work unions. No Easterner or Northerner is going to come in here and tell me how to run it (my business) ." " She fur- ther testified that he then told her that if he subsequently found out that he was mistaken as to her union membership lie would apologize and rehire her, otherwise she would not work for him again. Fox claimed that he had told Mrs. Sledge that she was discharged; that at the time he referred to some past trouble with her and told her that he did not care to go into it; and that she "voluntarily" stated to him that if he was discharging her for union membership she was not a union member and that he told her that union membership had nothing to do with the discharge. In view of Fox's speech in October 1936 in which lie stated that he would not let a union run his business, and his own resentment, expressed on the witness stand, at what he claimed to be the Union's interference with his business, as well as 4' words in parentheses supplied. 658 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD all the circumstances surrounding these discharges, it seems likely to us that, in substance, he made the statements attributed to him by Mrs. Sledge and we so find. The respondent contends that Mrs. Sledge was selected for discharge because she had an ungovernable temper, because she created disturb- ances in the factory, because she was hard to get along with, and be- cause her work was not "first class." In support of its claim the re- spondent established that Mrs. Sledge took part in two arguments with supervisory employees. One of these incidents occurred approxi- mately 5 years before 45 and the other more than 2 years before her discharge, and, hence, can scarcely be credited as its cause. Mrs. Houseman, the inspector on the sixth floor, claimed that they encoun- tered difficulties with Mrs. Sledge when work was returned for cor- rection. She admitted, however, that she was always able to get Mrs. Sledge to do the work over, and that occasionally she returned work to all the women and that they all "fussed" about having to do it over. With respect to the quality of her work there is evidence that on occa- sion it was returned for correction but there is no showing that either in amount or character these corrections differed from those necessary in connection with the work of other employees. On the other hand Mrs. Stubblefield admitted having discussed the work of all the trim- mers with Fox, that she (Sledge) was "sometimes" second in produc- tion, and that in judging Sledge's work that fact would be taken into consideration. While Mrs. Sledge may have had one or more of the faults attributed to her, the record makes it plain that such asserted shortcomings were not the cause of her discharge. The record indicates that Mrs. Sledge was a victim of the respond- ent's blacklisting activities, and that because of this fact she was unable to obtain work in the millinery industry until the last week of July 1937. At the time of her discharge Mrs. Sledge was earning between $15 and $16 per week on a piece-work basis. Between the date of her discharge and the time of the hearing she earned approx- imately $56. At the hearing she indicated her desire for reinstate- ment to her former position in the employ of the respondent. Mossie Crofford.-Mossie Crofford was employed by the respondent for 8 years prior to her discharge. After working for a year as a machine operator she was put in charge of the stockroom on the sixth floor of the respondent's factory. Her duties consisted of cut- ting trims, supplying the women with work, writing up orders, and checking the stock. Miss Crofford joined the Union about September 1, 1936, and was the only woman from the respondent's factory who journeyed to Fort 4' Fox did not remember whether she was discharged by him or whether she quit at that time; in either event she was subsequently rehired by him. FOX-COFFEY-EDGE MILLINERY COMPANY, INC. 659 Worth for the charter meeting of the Union. She was active in the solicitation of members among the women at the respondent's factory and induced many of the employees to join the Union: Mossie Crofford was discharged on January 29, 1937,48 by Fox, who said to her, "I am just not satisfied with you and I don't like the attitude that you have toward the girls in the workroom." She said, "So you are just now finding out you are not satisfied with my work after all these years." He replied "yes." The respondent contends that Miss Crofford was discharged be- cause she could not get along with her fellow employees and because her work had slowed up. Fox claims that he had spoken to her prior to her discharge about staying in the stockroom and minding her own business and that he had told her that she should let the machine operators alone. The only specific instance cited in sup- port of the first reason advanced by the respondent for her dismissal was a dispute between Miss Crofford and Mrs. Diebe1,47 who Fox claimed was the principal complainant against Miss Crofford. About 4 days prior to her discharge Miss Crofford had a "mis- understanding" with Mrs. Diebel concerning a change made by Mrs. Diebel in the setting of a machine which both of them used. Miss Crofford was unable to use the machine due to this change and called Fox to adjust the machine. When Fox came up to the stockroom, Diebel reported to him that Miss Crofford "had got on her" about changing the machine. Fox walked over to Miss Crofford and asked, "What do you mean talking to the girls like you did." Miss Crofford stated, "I haven't said anything out of the way . . . you are mistaken." No further conversation took place. This was the only trouble that Miss Crofford ever had in the factory and it was regarded as trivial by all concerned. Mrs. Stubblefield's testimony makes no reference to this incident and after the discharge she told Mrs. Diebel, in response to an inquiry, that it was not the cause of Miss Crofford's discharge. Mrs. Stubblefield, the floorlady, claimed that Mossie Crofford was discharged because her work had slowed up considerably.48 She tes- tified that this condition had existed over a period of time and that she discussed this matter with Fox the season before she was dis- charged and recommended that he discharge her. Miss Crofford denied that she had ever been told by anyone in authority that her Se The date of this discharge is indicated in the complaint , the answer, and the testi- mony as occurring at various dates between January 26 , 1937, and January 29, 1937. Miss Crofford's testimony establishes that she was discharged on Friday at the time she received her pay. This would indicate that the discharge took place on January 29, 1937, and we so find. 47 Mrs. Diebel was the operator who we have found reported the union activity of these employees to Mrs . Stubblefield a few days prior to the discharges. ss In this connection Fox testified , "Mossie had her mind on other things beside her job. She did not take care of her job properly." Fox did not explain this statement. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work was slow or unsatisfactory until the day that she was dis- charged. Upon all the evidence, we are satisfied and find that this employee with 8 years' service was not discharged for the reasons advanced by the respondent. At the time of her discharge she was earning a salary of $15 per week. The record indicates that. Mossie Crofford was a victim of the blacklisting activities of the respondent and was unable to secure other employment in the millinery industry. In March 1937, she obtained a job at a necktie factory and was earning $10 per week at the time of the hearing. Her total earnings from the time of her discharge to the time of the hearing were approximately $240. At the hearing she indicated her desire to be reinstated to her former position in the employ of the respondent. Mrs. Billie Roberts.-Mrs. Billie Roberts entered the respondent's employ as a trimmer in 1931 or 1932 and was employed regularly thereafter until her discharge on February 1, 1937. She joined the Union in September 1936 and her membership was known through- out the factory,. Mrs. Roberts was one of the employees reported to the floorlady by Mrs. Diebel as soliciting union membership and as being in the group of employees gathering to attend a union meeting. When Mrs. Roberts left the respondent's plant for the week-end on January 30 she was told to come in Monday. Upon her return Monday morning the floorlady informed her that there was no work and told her to go down to see Fox. Fox told her that she was too slow and that he could not keep her any longer. She asked Fox whether the discharge was on account of the Union. He told her that it was not and said "Don't mention the Union," that he knew more about it than she did, and added, "It seems like you have gone haywire on the sixth floor." He also stated that the women had their minds on something outside and not on (their) business." Fox did not deny these statements. The respondent contends that Mrs. Roberts was discharged because her work was unsatisfactory. Mrs. Stubblefield claimed Mrs. Rob- erts' work was not neat and would have to be done over, and that Mrs. Roberts was a slow worker and did not produce enough. Mrs. Roberts testified that she was never told by her supervisors that her work was unsatisfactory. Mrs. Houseman, the inspector on the sixth floor, testified that she complained to Mrs. Roberts about her work, frequently taking it back to her to be redone because of carelessness. However, Mrs. Houseman admitted that she had taken work back to all of the women and that the respondent kept no records of the number of hats brought back to be redone. Mrs. Roberts' production was lower than some of the women in the employ of the respondent and -she was rated between the fast ones and the slow ones but was above the average. Her uncontradicted testi- FOX-COFFEY-EDGE MILLINERY OOMPAIQY, INC. 661 mony establishes there were many who earned less than she who were not discharged, and that her pay checks were as high just before she was discharged as they were in other years that she worked for the respondent. In view of this testimony and the respondent's failure to produce its records which would have refuted her claims had they been untrue, we accept Mrs. Roberts' testimony concerning her earn- ings and efficiency. We are not persuaded that Mrs. Roberts' asserted deficiencies as an employee existed but even if they did they were no more acute at the time of her discharge than theretofore. Upon all the evidence we are satisfied and find that Mrs. Roberts was not discharged for the reasons advanced by the respondent. One week after her discharge by the respondent, Mrs. Roberts ob- tained employment at the Queen's Millinery Company 4° but in 2 weeks was laid off with several other girls, apparently because of lack of work. Thereafter she tried several other places and finally obtained employment outside the millinery industry from April to August 1937, at which time she was hired by one of the members of the Council. She was employed at the time of the hearing but her employment was not regular and she, indicated her desire for reinstatement with the respondent. During the month prior to her discharge Mrs. Rob- erts'. earnings averaged approximately $11 per week. Between the date of her discharge and the hearing she earned approximately $130. Mrs. Naomi Courttner.-Mrs. Naomi Courtner was employed by the respondent for about 8 years as a trimmer and copyist, having pre- viously been in the millinery business for herself. She joined the Union about the latter part of September 1936, made no secret of her membership or activities in its behalf, and was one of those employees reported by Mrs. Diebel in the group preparing to attend a union meeting. Mrs. Courtner was discharged on February 1, 1937, the same day that Mrs.., Roberts;_}vas discharged, approximately a week after the ,report of her union activities by Mrs. Diebel to the floorlady. By this time it had become apparent to the employees on the sixth floor that the respondent was discharging active union members. Several of the girls told Mrs. Courtner that she "had it coming next." As she pre- pared to leave for the day, Mrs. Courtner asked Mrs. Stubblefield, the floorlady on the sixth floor, at what time she could come to work in the morning and was told, "You are not to come in any more." Mrs. Courtner said, "I guess I had better get my things then," and Mrs. Stub- blefield replied, "That is right." No further conversation took place. The respondent rehired Mrs. Courtney on September 15, 1937. "Queen's Millinery Company was a member of the Council but was dropped from membership at a date not indicated in the record. 233031-41-yol.20 43 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing Mrs. Stubblefield claimed that Mrs. Courtner was discharged because her work was not neat and would have to be done over and because she did not produce enough hats. She claimed that there was not enough work to keep all the women working and that she selected Mrs. Courtner to be dismissed because her work was unsatisfactory. Mrs. Stublefield, who had been working as a supervisory employee for the respondent for over 2 years, claimed that Mrs. Courtner's faults had existed all that time. She stated that she was not certain when she first reported this unsatisfactory work to Fox but believed that it was soon after she came to work for the respondent. The testimony of Fox makes no mention of any complaints of this nature from Mrs. Stubblefield. Mrs. Stubblefield admitted that she did not know how many of Mrs. Courtner's hats came back to be redone, and that she never checked whose work came back. Mrs. Houseman, the inspector on the sixth floor, who was called as a witness by the respondent, made no claim that she ever took any hats back to Mrs. Courtner to be redone and admitted that Mrs. Courtner "was an average worker." Mrs. Courtner testified that she was never told that her work was unsatisfactory. There is no credible proof to establish that Mrs. Courtner did not produce enough hats. Mrs. Courtner testified that she was the third fastest trimmer on the sixth floor; that she trimmed from 70 to 100 hats per day and had done as many as 110 on occasion. Mrs. Stubblefield admitted that the trimming of 65 to 100 hats is a good clay's work. When questioned concerning Mrs. Courtner's claim to be the third fastest worker Mrs. Stubble- field evaded a direct reply but she did not dispute the claim and admitted that the. office records would show the number of hats produced. The respondent did not produce these records and, there- fore, we accept Mrs. Courtner's testimony that she was not a slow worker but was in fact one of the fastest in the factory. Fox made no claim concerning any deficiencies in her work ' and offered no explanation for her discharge. Since the respondent re- hired this employee on September 15, 1937,50 it is apparent that she was in fact a satisfactory worker and we must reject Mrs. Stubble- field's claim regarding the unsatisfactory quality of her work. We. are of the opinion that Mrs. Courtner was not discharged for the reasons assigned by the respondent. From the time of her discharge until the last week in July 1937, Mrs. Courtner worked for 9 days for a millinery manufacturer not a member of the Council. At the end of July she was hired by a member of the Council and worked 3 weeks until she went out on strike on August 14, 1937. She commenced working for the respond- 60 Fog told her on this occasion that he seemed to have all the slow workers in Dallas. FOX-COF'FEY'-EDGE MILLINERY COMPANY, INC. 663 ent on September 15, 1937, and was employed by it at the time of the hearing. At the time of her discharge at the beginning of the busy season Mrs. Courtlier was earning $12 to $13 per week on a piece-work basis. It is apparent, however, that during the height of the busy season she had earned considerably more than this sum. Between the date of her discharge and September 15, 1937, the date on which she was reinstated by the respondent, she earned approxi- mately $55. To summarize, the four employees under consideration were active adherents of the Union and their activity was known and resented by the respondent.51 No other employees were discharged at that time. They all worked on the sixth floor of the respondent's factory which was the section of the building where the Union had made the most progress in organizing the employees. The discharges oc- curred at the beginning of the busy season despite the relative scarcity of experienced millinery workers in Dallas at such season. All four employees were experienced workers with service records of from 6 to 8 years. The reasons advanced by the respondent for their dis- charges were patent excuses such as might be readily exhumed from practically any employee's past work record in order to justify a discriminatory discharge. Upon all the evidence we find that the respondent discharged Mrs. Theda Sledge on January 28, 1937, Miss Mossie Crofford on January 29, 1937, Mrs. Billie Roberts and Mrs. Naomi Courtner on February 1, 1937, because of their union membership and activities. We find that by the discharge of the above-named employees and the refusal to reinstate all of them except Mrs. Naomi Courtney, the respondent has discriminated in regard to hire and tenure of employ- ment thereby discouraging membership in the Union. We further find that by such acts of discrimination the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The alleged re fusal to bargain The complaint alleges that the respondent refused to bargain col- lectively with the Union. The Trial Examiner found that the Union did not represent a majority of the employees in an appropriate unit on August 14 and 16, 1937, and that there was no refusal to bargain within the meaning of Section 8 (5) of the Act. The Union filed no exceptions to this finding. We have examined the evidence relating to the majority representation issue and agree with the Trial Ex- 11 One of the respondent's employees who was not at work at the time of these discharges subsequently returned to work and asked Fox "where the other girls were." He replied, "I was sorry that I had to let those girls go because they were misinformed" and added that they would never be employed by the respondent again. He did not mention anything to her about their work being unsatisfactory. Fox did not deny these statements. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aminer's finding. Accordingly, the allegations of the complaint with respect to the respondent's failure to bargain with the Union will be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in'Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We will require it to cease blacklisting union members by using the facilities of the Dallas Millinery Council or by any other means. We will also require the respondent to offer immediate and full rein- statement to Oscar L. Cantrell, Mingo Scott, Mrs. Theda Sledge, Miss Mossie Crofford, and Mrs. Billie Roberts, without prejudice to their seniority or other rights and privileges, and further to make then whole for any loss of pay suffered by reason of their respective dis- charges by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings 52 during said period. Mrs. Naomi Courtlier was voluntarily reinstated by the respondent on September 15, 1937, and an order for her reinstatement is therefore not necessary, we shall, however, order the respondent to make her whole for any loss of pay she has suffered by reason of her discharge by payment to her of a sum of money equal to the amount which she normally would have earned as wages from the date of her discharge to September 15, 1937, the date on which she was reinstated by the respondent, less her net earnings 53 during said period. sa By "net earnings" is meant earnings less expenses, such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for his un- lawful discharge and the consequent necessity of his seeking employment elsewhere. See ]hatter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners ,of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B . 440. Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects are not considered as earnings , but as provided below in the Order , shall be deducted from the sum due the employee. and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county , municipal , or other government or governments which supplied the funds for said work -relief projects. 53 See footnote 52, supra. I I Ilil; ha FOX-COFFEY-EDDG-E MILLINERY COMPANY, INC. 665 VI. THE QUESTION CONCERNING REPRESENTATION As we have heretofore stated, on August 12, 1937, the Union wrote to the respondent requesting exclusive recognition and collective bar- gaining. On August. 13, 1937, the respondent replied requesting proof of the Union's claim to majority representation. 'On August 17, 1937, the Union filed a petition with the Board alleging that a question had arisen concerning the representation of employees of the respondent in an appropriate unit. On September 27, 1937, the respondent filed an answer to this petition in which it denied, inter alia, that the Union represented a majority of the employees in the alleged appropriate unit. We find that a question has arisen concerning the representation of employees of the respondent. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead and has led to labor disputes burdening and obstructing commerce and the free flow of commerce. VIII. THE APPROPRIATE UNIT The petition alleges that all production employees, including blockers, cutters (by hand and machine), operators, trimmers, and makers," constitute an appropriate bargaining unit. The respondent concedes that the production employees are an appropriate unit but claims that the term "Production employees" includes "everybody who has a part in the preparation of a hat from the time it starts until the time it goes out." In accordance with its definition it seeks to include within the appropriate unit, in addition to those set forth in the petition, the foremen and floorladies, the de- signers, "the girls who press the trims before they are put on the hat," and the order fillers. The employees in the last two groups are desig- nated on the respondent's pay rolls in the group of "miscellaneous employees." The foremen and floorladies are in a supervisory capacity over the production workers and recommend the hiring and discharging of employees. The Union contended that the supervisory help should 54 The term "maker" refers to employees on the fifth floor of the respondent's factory who perform all of the operations in production of the hat except blocking . They are listed on the respondent's pay roll , along with those on the sixth floor who do only trimming, under the classification , "trimmer." 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be excluded from the unit. In accordance with our usual practice, they will be excluded from the appropriate unit.55 The designers are engaged in the creation of original ideas for the styling of the hats. A sample or "original" of each creation is made either by the designer, or by an operator whom she directs in the production. The trimmers and makers then copy the samples. The sample is never sold to customers. While the designers do not appear to have any supervisory duties or any power in connection with the hire and discharge of employees, they do give instructions to the other employees and help them if there is any difficulty in the work. At the time of the hearing the respondent had two full-time design- ers. Both were paid a weekly salary which was considerably higher than either the wages or the piece-work earnings of the employees within the unit alleged by the Union to be appropriate. Their posi- tions appear to be such that they were not subject to lay-offs during fluctuations in work as are most of the production employees. An examination of their testimony indicates that they have no real com- munity of interest with the regular production employees. Under the circumstances we find that the full-time designers are not normal production workers and should be excluded from the appropriate unit. Two employees, Alma Nanny and Nola Daum, were listed as trim- mers 56 on the respondent's pay rolls but testified that they also did some designing. The record does. not indicate what proportion of their time is spent in each occupation. Their testimony does not reveal whether their earnings were calculated on a salary basis as designers or on a piece-work basis as makers. Since at least part of the work donee by these two employees is regular production work similar to that performed by employees within the appropriate unit and the respondent's pay roll lists them as trimmers we see no reason for excluding them from the appropriate unit. The parties disagreed over the inclusion of some of the employees listed on the respondent's pay roll under, the general classification of "miscellaneous, including floor girls, order fillers, etc., and sales." The respondent's pay roll of August 14, 1937, lists 11 employees under this heading but does not indicate the position held by each. The Union indicated its desire to exclude, "clerical help in the factory," 55 Ann Jones , an employee listed as a "cutter" on the respondent's pay rolls, was claimed by several employees to have occasional supervisory duties in the absence of the floorlady. The testimony of Miss Jones and the respondent's officers indicates that she had no such authority . Even if she did have these occasional supervisory duties it is apparent that the major part of her duties consisted of ordinary production work and, therefore, she will not be excluded from the unit. ' Since these employees worked on the fifth floor they are "makers ." See footnote 54, supra. FOX-COFFEY-EDGE MILLINERY COMPANY, INC. 667 "order fillers," "errand people," 57 and "floor help" and "salesladies"; thus apparently intending to exclude all of the persons within this "miscellaneous" class. The respondent contended that "the girls who press ribbons" and "the order filler" should be included in the unit as production workers. We shall now consider the duties of each of these employees classi- fied as "miscellaneous" in order to determine what part, if any, each takes in the production process. The first 58 of the employees classi- fied as "miscellaneous" testified that at the time the petition was filed she was employed at blocking hats on the hot block after they were trimmed and then pressing them. Apparently this is a necessary part of the production of the hat without which the hat is not complete. We find, therefore, that this position, the exact name of which is not indicated in the record, should be included within the unit. The second employee 50 classified as "miscellaneous" testified that her duties consisted of distributing the "originals" to the women, helping cut the trims and pressing the ribbons. While most of her work was of the non-production type, her duties in cutting trims, an operation that was necessary before they could be placed upon the hat, is in fact part of the production process. Some of the respond- ent's employment lists classify this individual under the title of "as- sistant cutter" and we shall so designate her. Under the circum- stances we believe that "assistant cutters" are production employees and should be included within the appropriate unit and we so find. The third 60 and fourth 61 persons classified as "miscellaneous" were "errand girls" 62 in the factory. The record indicates that they were engaged entirely in the distribution of work to the production em- ployees. They take no part in' any of the processes in the manufac- ture of the hat or any part thereof. They are not strictly production employees and will, therefore, be excluded from the unit. The fifth 63 and eighth 84 employees classified as "miscellaneous" were referred to as the "order fillers." After the hat is completed and has 67 The respondent contends that it has no persons , in its employ designated as "errand girls," yet one of its employment lists indicates that some of its employees were so designated and for convenience in reference we shall adopt this designation. Doris Sikes. ss Beulah Martin. w Mary Milton (also designated as Mary Melton ) did not appear at the hearing. She is designated on two of the respondent 's employment lists as "Errand." 11 Lucille Owens. 0 See footnote 57, supra. 11 Christine Broxon. a This employee , Hilda Milligan , left the employ of the respondent on September 29, 1937, and did not appear at the hearing . The respondent's employment lists designate her as a "packer" prior to August 14, 1937, and as an "order filler" on and after that date. While one of the respondent 's employees thought that Miss Milligan did "general work in the stock room" and cut some trims, her testimony indicates that she was uncer- ta'in as to the exact nature of the work. Under the circumstances we will classify her position as "order filler." 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD passed all inspections it is sent to the "order filler" who has the list of hats that have been ordered by customers. She selects the hats to fill the order and sends them to the basement to be packed for ship- ping. It is apparent that the "order fillers" have no part in the pro= duction process, which has been completed prior to the delivery of hats to them, and we will, therefore, exclude them from the appropriate unit. The sixth employee 65 classified as "miscellaneous" whom we shall refer to as the "ticketer" was engaged in making up work tickets in the factory. There is no evidence indicating that her duties were in any way connected with the production of hats and we will, therefore, exclude this position from the unit. The remaining employees classified as "miscellaneous" are salesgirls. Both the Union and the respondent indicated their desire to exclude this group of employees from the unit. Both parties also agreed that the shipping department and the office employees should be excluded from the unit. We shall exclude the salesgirls, shipping-department employees, and office employees from the appropriate unit. Apparently through inadvertence the name of the "inspector" vas omitted from the classification of "miscellaneous" employees on the pay roll of August 14, 1937. The record indicates that she was em- ployed on that date and her name is included in this classification on other pay rolls. The inspector inspects the hats after they have been trimmed. If there are any errors she takes the hat back to the trim- mer to be corrected. The inspector is not a production worker.66 We shall exclude the position of inspector from the unit. We find that all production employees, including blockers, cutters (by hand and machine), operators, trimmers, makers, part-time de- signers who are also engaged in production work, the women who work on hot blocks, and the assistant cutters, excluding foremen and floor- ladies, full-time designers, errand girls, order fillers, ticketers, sales- girls, the shipping department, the office employees, and inspectors, constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of the respondent the full benefit of their rights to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. IX. THE DETERMINATION OF REPRESENTATIVES In view of the facts set forth in Section III, subdivision D, above, we find that the question which has arisen concerning representation 85 This employee, Mae Granberry, did not appear at the bearing. e°See Matter of International Nickel Company, Inc. and Square Deal Lodge No. 40, Amalgamated Association of Iron, Steel and Tin Workers of North America , through Steel Workers Organizing Committee, 7 N. L. R. B. 46; and Matter of Keystone Manufacturing Company and United Toy and Novelty Workers Local Industrial Union No. 538 of the C. I. 0., 7 N. L. R. B. 172. .FOX-COFFEY-E'DG'E MILLINERY COMPANY, INC. 669 of employees of the respondent can best be resolved by a secret ballot. We shall accordingly direct that an election by secret ballot be held.67 Since the respondent has, by engaging in various unfair labor prac- tices, interfered with the exercise by its employees of the rights guar- anteed them by the Act, we shall not now set the date for the election. We shall hold the election, however, upon receipt of information from the Regional Director that the circumstances permit a free choice of representatives unaffected by the respondent's unlawful acts. 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. United Hatters, Cap and Millinery Workers' International Union, Local 57, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Oscar L. Cantrell, Mingo Scott, Mrs. Theda Sledge, Miss Mossie Crofford, Mrs. Billie Roberts, and Mrs. Naomi Courtner, there- by discouraging membership in the Union, the respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. The respondent by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 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 (5) of the Act. 6. A question affecting commerce has arisen concerning the repre- sentation of the respondent's employees within the meaning-of Section 9 (c) and Section 2 (6) and (7) of the Act. 7. All production employees of the respondent including blockers, cutters (by hand and machine), operators, trimmers, makers, part- time designers who are also engaged in production work, the women who work on the hot blocks, and the assistant cutters, excluding fore- men and floorladies, full-time designers, errand girls, order fillers, ticketers, salesgirls, the shipping department, the office employees, and inspectors, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9 (b) of the Act. G7 Matter of Armour 1 Company and United Packinghouse Workers, Local Industrial Union No . 13 of Packinghouse Workers Organizing Committee, affiliated with C. I. 0., 13 N. L. R. B. 567 ; Matter of The Cudahy Packing Company and United Packinghouse Workers of America, Local No. 21, of the Packinghouse Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, 13 N. L. R. B. 526. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the, respondent, Fox-Coffey-Edge Millinery Company, Inc., Dallas, Texas, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in United Hatters, Cap and Milli- nery Workers' International Union, Local 57, or any other labor organ- ization of its employees, by discriminating in regard to hire or tenure of employment or any tern or condition of employment because of membership in or activity in behalf of United Hatters, Cap and Mil- linery Workers' International Union, Local 57, or any other labor organization ; (b) Blacklisting union members by using the facilities of the Dallas Millinery Council or by any other means; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining ' or 'other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Oscar L. Cantrell, Mingo Scott, Mrs. Theda Sledge, Miss Mossie Crofford, and Mrs. Billie Roberts immediate and full reinstatement to their former positions without prejudice to their seniority or other rights and privileges; (b) Make whole Oscar L. Cantrell, Mingo Scott, Mrs. Theda Sledge, Miss Mossie Crofford, and Mrs. Billie Roberts for any loss of pay they have suffered by reason of their respective discharges, by payment to each of them, respectively, of a sum of money equal to that which he would normally have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during such 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, munici- pal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county,. munici- pal, or other government or governments which supplied the funds for such work-relief projects; (c) Make whole Mrs. Naomi Courtner for any loss of pay she may have suffered by reason of her discharge by payment to her of a sum of money equal to that which she would normally have earned,as,wages FOX-COFFEY-EDGE MILLINERY COMPANY, I-c. 671 from the date of her discharge to September 15, 1937, the date on which she was reinstated by the respondent, less her net earnings during said period; deducting, however, from the amount otherwise due to the said employee, monies received by her 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) Post immediately in conspicuous places throughout its factory, and maintain for a period of at least sixty (60) consecutive days from the date of said posting, notices to its employees stating that the respondent will cease and desist in the manner set forth in 1 (a), (b), and (c), that it will take the affirmative action set forth in 2 (a), (b), and (c) of this Order, that its employees are free to become or remain members of United Hatters, Cap and Millinery Workers' International Union, Local 57, and that it will not discriminate against any employee because of membership or activity in that organization; (e) Notify the Regional Director for the Sixteenth Region in writing within ten (10), days from the date of this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed in so far as it alleges that the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act, by participating in the activities of the Dallas Open Shop Association and the Dallas Chamber of Commerce. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Fox-Coffey-Edge Millinery Company, Inc., Dallas, Texas, an election by secret ballot shall be conducted at such time as the Board shall hereafter direct, under the direction and supervision of the Regional Director for the Sixteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all production 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees of the respondent, including blockers, cutters (by hand and machine), operators, trinuners, makers, part-time designers who are also engaged in production work, the women who work on the hot blocks, and the assistant cutters, employed by said respondent during a pay-roll period which the Board shall in the future specify, includ- ing employees who did not work during such pay-roll period. because they were ill or on vacation and excluding foremen and floorladies, full-time designers, errand girls, order fillers, ticketers, salesgirls, the shipping department, the office employees, and inspectors, and exclud- ing also those employees who have after the eligibility date quit or been discharged for cause, to determine whether or not they desire to be represented by United Hatters, Cap and Millinery Workers' International Union, Local 57, for the purposes of collective bargaining. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision, Order, and Direction of Election.