Donnelly Garment Co.

In the Matter of DONNELLY GARMENT COMPANY and INTERNATIONAL LADIES' GARMENT WORKERS' UNION and DONNELLY GARMENT WORKERS UNION, PARTY TO THE CONTRACT Case No. C-1382.-Decided March, 6, 1940 Ladies' Garment Manufacturing Industry-Interference, Restraint, and Coer- cion: domination and use of employees' Loyalty League to prevent organization of employees by "outside " labor organization ; permitting employees to cir- culate anti-union loyalty pledge with assistance of supervisors and requesting that additional signatures be obtained ; sponsoring and dominating anti-union meeting of employees and encouraging opposition to "outside" labor organiza- tion by promising "protection" to employees ; speech disparaging union leader ; approval and encouragement of anti-union demonstrations by employees in plant-Company-Dominated Union: domination of and interference with forma- tion and administration ; formation sponsored and financed by company-dom- inated League ; participation by supervisors and by confidential employees who were held out as representatives of management ; use of company property and facilities ; union business conducted on company time and property ; union com- mittee controlled by management representatives ; encouragement of inside union by speedy recognition, prompt negotiation of closed-shop contract ; ordered disestablished-Evidence: testimony of employees that they were not dominated or coerced but acted voluntarily is not controlling when record shows respond- ent committed acts of domination, interference, and assistance-Contracts • with company-dominated union invalid ; substantive provisions of relating to rates of pay, wages, hours of employment, or other conditions of employment, not to be affected by-Check-Off: agreement for, with company-dominated union; employer ordered to reimburse employees for amounts deducted from wages as dues for company-dominated union-Discrimination: entering into and pub- licizing closed-shop agreement with company-dominated union, thus not within proviso of Section 8 (3), held discrimination as to terms and conditions of employment ; temporary lay-off held discriminatory, but no order of reinstate- ment or back pay because employer subsequently took action equivalent to offer of reinstatement ; denial of reinstatement after vacation discriminatory- Reinstatement Ordered: for discriminatory refusal to reinstate Back Pay: awarded to employee who is to be offered reinstatement ; computation of : period from date of service of Intermediate Report to Order excluded from. Mr. Daniel J. Leary and Mr. Henry H. Foster, Jr., for the Board. Reed & Ingraham, by Mr. James A. Reed, Mr. R. J. Ingraham, Mr. James J. Shepard, Jr., and Mr. Burr S. Stottle, of Kansas City, Mo., for the respondent. Mr. Clif Langsdale and Miss Jane Walker Palmer, of Kansas City, Mo., for the I. L. G. W. U. 21 N. L R B., No. 24. 164 DONNELLY GARMENT COMPANY 165 Gossett, Ellis, Dietrich cC Tyler, by Mr. Frank E. Tyler, Mr. Thomas J. Patten, and Mr. Lucian Lane, of Kansas City, Mo., for the D. G. W. U. Mr. N. Barr Miner, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges dated August 9, 1938, and amended charges dated April 6, 1939, duly filed by International Ladies' Garment Workers' Union, herein called the I. L. G. W. U., the National Labor Rela- tions Board, herein called the Board, through its Acting Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its complaint, dated April 27, 1939, against Donnelly Garment Com- pany, of Kansas City, Missouri, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices the complaint, as amended,' alleged in substance (1) that the respondent on or about April 27, 1937, and thereafter, dominated and interfered with the formation and administration of a labor organization among its employees, known as "Donnelly Garment Workers Union," herein called the D. G. W. U., and has given financial and other, support to the said organization, inter alia, (a) by encouraging and per- mitting its supervisory and other employees to promote the organi- zation of and membership in the D. G. W. U. on the respondent's time, property, and at its expense, (b) by forming, on or about Feb- ruary 12, 1935, through its officers and agents, the Donnelly Loyalty League, herein called the League, and continuing to dominate said League until on or about April 27, 1937, for the purpose of impeding and preventing the organization of its employees by the I. L. G. W. U., and (c) by entering into a closed-shop agreement for the purpose of assisting the D. G. W. U. and of depriving its employees of their rights guaranteed under the Act; (2) that the respondent discour- aged membership in the I. L. G. W. U. by discharging 2 employees, Sylvia Hull and May Fike, in April 1937, because said employees 'The allegations are summarized from the complaint as amended at the close of the evidence put in by the Board at the hearing By stipulation , dated July 22, 1939, the amended complaint was further amended to conform it to the proof. 283032-41-vol. 21-12 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had joined and assisted the I. L. G. W. U.; (3) that the respondent by various acts 2 has coerced and restrained its employees from becoming members or continuing membership in the I. L. G. W. U. and has encouraged and compelled membership in the D. G. W. U. It is further alleged that the respondent by entering into a closed- shop contract with the D. G. W. U. has violated Sections 8 (3) and 8 (1) of the Act and that the aforesaid closed-shop contract between the respondent and the D. G. W. U. is void and of no effect. Upon motions of the respondent and the D. G. W. U. the Trial Examiner dismissed the allegations in the amended complaint relating to certain of the acts of interference, restraint, and coercion,3 but over- ruled all motions of the respondent and the D. G. W. U. to dismiss the complaint or amended complaint in its entirety.' These rulings are hereby affirmed. The complaint and notices of hearing thereon were duly served upon the respondent, upon the I. L. G. W. U., and upon the D. G. W. U., party to the contract. On May 2, 1939, the Donnelly Garment Work- ers Union filed its petition to intervene, which was granted, by order of the Acting Regional Director for the Seventeenth Region, in so fax as its interest might appear. Hearings were held before James C. Batten, the Trial Examiner duly designated by the Board, from June 5 to July 15, 1939, inclusive, at Kansas City, Missouri. At the hearing the Board, the respondent, the D. G. W. U. and the I. L. G. W. U. were represented by counsel. Full opportunity to be heard, to examine and cross- examine witnesses, and to produce evidence bearing upon the issues was afforded to all parties. 2 The principal acts enumerated in the amended complaint are • (a ) by discharging Fern Sigler in April 1937 , ( b) by statements of the respondent's piesident and of certain supervisory employees in March and April 1937 , ( c) by public statements against the I L. G W U made by James A. Reed, ( d) by permitting a loud-speaker system in its cafeteria to be used as it medium of propaganda in favor of the D G W U and in opposition to the I L. G W U , ( e) by keeping members and meetings of the I L G W U under surveillance, ( f) by circulating and inducing its employees to sign it petition pro- fessing their loyalty to the respondent , (g) by permitting ceitain supervisory and confi- dential employees to become members and active in the affairs of the D G W U, (h) by discriminating in the allotment of work and by refusing to iecall to work certain named employees who were allegedly members of the I L G W U, (i) by instigating and permitting its employees to engage in a demonstration on April 23 , 1937, against certain members of the I. L. G. W. U., and ( j) by granting a contract to the D G W U making membership therein a condition of employment 8 The portions of the amended complaint dismissed were subpaiagraphs rl, g, g(1), i, k, n, o, and p , of paragraph 11, relating to. (1) public statements of James A Reed, (2) statements of Alex Green and Mis Ella Mae Hyde, supeivisory officials of the re- spondent, concerning the I L G . W. TJ, (3) use of a loud-speaker system in the respond- ent's cafeteria to influence its employees iegarding their union affiliations , (4) surveil- lance, ( 5) discrimination in the allotment of work to employees who were members of the I L G . W. U, and ( 6) the refusal of the respondent to recall or assign work to certain named employees who were members-of the I L G W U 4 These motions were made at various time, during the course of the hearing The Tiial Examiner reserved decision and announced the i ulings, as stated , in his Intermediate Report DONNELLY GARMENT COMPANY 167 The respondent and the D. G. W. U. filed notions to make the charge and the complaint more definite and certain. The Trial Examiner granted in part the motions referring to the complaint, and ordered counsel for the Board to make the complaint more definite and certain in specified respects. Counsel for the Board, in compliance with the Trial Examiner's ruling, thereafter moved to strike certain portions of the complaint and to amend it, which motion was granted. At the close of the presentation of evidence by the Board in support of the complaint, said complaint was again amended on motion of counsel for the Board, and service of said amended complaint was acknowledged by the parties. Various other motions by the respondent and the D. G. W. U. to make the complaint more definite and certain were denied and the respondent's contention that portions of the amended complaint were so vague, indefinite, and uncertain that they do not sufficiently apprise the respondent of the acts charged was overruled by the Trial Examiner. These rulings of the Trial Examiner are hereby affirmed. On June 1, 1939, the respondent filed its answer which was divided into four parts. In Part A the respondent contended that upon ten stated grounds 6 the Board is without jurisdiction to maintain the proceedings. In Part B of its answer the respondent avers that the complaint must be dismissed. "for the reason that the Board, its agents and representatives, have exceeded their authority and have demon- 5 The stated grounds were* (1) the Board is without jurisdiction to issue a complaint "at the request of an organization which does not represent a single employee in the respondent's plant, * * * and (which) has been found by a United States Federal Court to be engaged in an unlawful conspiracy to force respondent to compel its em- ployees to join said organization against their wills" ; (2) the Board has no authority to issue a complaint "for the purpose of attempting to abiogate and nullify contracts between the respondent and the exclusive representative of 100 per cent of its employees when said contracts are entirely satisfactory to both parties thereto and have been determined by it United States Federal Court to contain higher wages and more favorable working conditions than are contained in any contracts enteied into between the Inter- national Union (I. L. G W. U ), and other garment manufactuicis in this pait of the country" ; (3) this proceeding deprives the respondent, without a judicial hearing, of its right freely to contract as guaranteed by the Fifth Amendment to the Constitution of the United States, (4) if this proceeding were sustained valid contracts between the respondent and the chosen representatives of its employees would be abrogated without a judicial hearing, due process of law, and a trial by jury, in violation of the Fifth and Seventh Amendments to the Constitution ; (5) this proceeding deprives the iespondent of its property without due process of law and of its right to trial by jury- by providing for the awarding of unearned wages to former employees and for their reinstatement, (6) the amended charge of the I L. G W U. is vague, indefinite and does not state facts sufficient to support a foimal complaint; (7) the Board, without authority, by the issu- ance of its complaint, has prejudged as true the allegations in the amended charge of the I L G. W. U ; (8) the complaint is vague, indefinite, insufficient and alleges conclu- sions instead of facts, all in violation of due process of law , (9) the maintenance of this proceeding violates the Fifth Amendment and Article III, Sections 1 and 2 of the Consti- tution of the United States by permitting the Board to act as investigator, complainant, prosecutor, trier of the facts and judge of the controversy and by denying the iespondent a judicial review of the evidence in accordance with the rules of law and evidence , (10) the Board has not conducted an election among the respondelit's employees to determine their choice of representatives, which is a condition precedent to a proceeding based on charges of unfair labor practices. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strated their bias and prejudice against the respondent, and collusiollr with the International Union (I. L. G. W. U.) by filing of the com- plaint herein and by the maintenance of this proceeding in the face- of [certain enumerated] facts of which the Board and its representa- tives have actual knowledge."' Part C of the respondent's answer is. a petition for investigation and certification of representatives of its. employees. The answer, in Part D, admits certain allegations in the- complaint concerning the corporate structure and the nature of the business of the respondent, but denies specifically each and every alle- gation that it has engaged in or is engaging in unfair labor practices.- At the hearing the respondent filed a motion requesting that the- complaint be dismissed for the reasons stated in Parts A and B of its The ansiier of the respondent alleges as facts of which the Board has knowledge: (1) that the I. L. G W U has engaged in an unlawful conspiracy to injure and destroy the respondent ' s business by publishing false and libelous reports about the respondent- ,an,] the working conditions in its plant, by inaugurating and threatening to inaugurate secondary boycotts against the respondent 's customers and merchandise , by threatening assaults on the respondent ' s employees similar to those perpetrated against employees of garment manufacturers in Kansas City, Missouri , St. Louis, Missouri , Dallas , Texas, and Memphis , Tennessee ; ( 2) that the I. L G. W. U , knowing that the employees had refused to b2 repi eented by the I L G W U , publicly announced a drive against the respondent and its employees , requested by letter containing false statements a conference with the- re^pondent foi the purpose of making a closed -shop contract , and began attacks of fraud and violence against three other garment manufacturing companies in Kansas City, Mis- souri , at the same time announcing that similar acts of violence would be perpetrated' against the respondent ' s employees ; ( 3) that the respondent after receiving a request to enter into a collective bargaining agreement with the D . G W U., a voluntary organiza- tion of its employees , sought to obtain a determination by the Board of the right of the D. G. W. U. to be the exclusive bargaining agent of its employees , but was advised by rep- resentatives of the Board that an application by an employer for certification of represent- atives could not be granted under the rules of the Board , and thereafter entered into a collective bargaining agreement with the D G W U. ; (4) that sometime after July 5, 1937, the United States District Court for the Western Division of the Western District of Missouri , three judges sitting , temporarily enjoined the I L G W U from committing- unlawful acts of fraud and violence against the respondent and its employees which deci- sion was appealed to the Supreme Court of the United States and by that Court remanded' to be heard before a single judge in the District Court; ( 5) that the Board ' s Acting Re- gional Director for the Seventeenth Region ( Ernest C Dunbar ) on August 25, 1938, noti- fied the respondent by letter that charges of unfair labor practices had been filed against the respondent by the I L. G. W. U. and requested it conference on said charges, and thereafter the respondent requested the said Regional Director for the facts alleged in the charges and for an opportunity to present evidence thereon , but this privilege was denied by the representatives of the Board who threatened to file a complaint and conduct a long hearing unless the respondent acceded to the demands of the I L G W U. and fur- ther asserted that if a hearing were held the Board would find against the respondent; (6) that on • of about February 4, 1939 , at the request of representatives of the Board, written proposals upon which settlement of the charges might be reached were submitted to each other by the respondent, the D. G. W U. and the I L G W U, and that the pro- posal of the I. L G W. U. included an offer to drop all boycott activities against the respondent "so long as the respondent does not recognize any plant union as the bargain- ing representative of its employees ," acceptance of which proposal by the respondent would have compelled it to siolate the terms of the National Labor Relations Act; (7) that the hearing on the remanded injunction suit was begun in the United States District Court on March 22 , 1939, at the close of which a permanent injunction against the, I L G W. U. was granted pursuant to the respondent ' s petition , and that representatives of the Board were in constant attendance at the said hearing and consulted frequently with representatives of the I L G W U . during the examination of the respondent's witnesses , thus demonstrating that the Board assisted and is assisting the I L G W. U. in its conspiracy against the respondent and is maintaining the proceedings herein in, violation of any authority \ested in the Board by the Act. DONNELLY GARMENT COMPANY 169 =answer.7 At the same time, the I. L. G. W. U. moved to strike cer- -tain portions of the respondent's answer, viz, from Part A of the respondent's answer the allegation that a United States District Court had determined that the contracts between the respondent and the D. G. W. U. contain higher wages and more favorable working -conditions than contracts between the I. L. G. W. U. and other gar- ment manufacturers in the area; from Part B of the answer the allegations that the I. L. G. W. U. was engaging in an unlawful -conspiracy against the respondent, that it had engaged in violence against employees of other garment manufacturers and had an- -nounced that similar acts would be perpetrated against employees of the respondent, that the respondent's contract provided for higher wages and more favorable working conditions than contracts obtained by the efforts of the I. L. G. W. U., the allegations referring to the -findings and decrees of the United States District Court for the Western Division of the Western District of Missouri, the averment that the I. L. G. W. U. admitted that the respondent's employees did not desire to be represented by the I. L. G. W. U., the allegations regarding the assistance of the Board's representatives in the alleged -conspiracy of the I. L. G. W. U. against the respondent; from Part D the averments that the I. L. G. W. U. sought closed-shop agree- ments even when it represented only a few or none of the employees of the, company with whom it sought such agreements. The reasons -stated as grounds for striking these portions of the answer are that they are immaterial to the issues before the Board, that the Board is not bound by the findings of other judicial tribunals, that the "clean hands" doctrine of equity does not apply to proceedings before the Board, that these portions of the answer constitute an attempt by the respondent to try before the Board the Federal District Court P Part B of the respondent 's answer includes the findings of fact and conclusions of law of the United States District Court for the western Division of the western District of Missouri in an injunction suit brought by the respondent against the I. L G W U. (See -infra, footnote 10 ) In its brief and at the oral argument the respondent sets forth as a iea- son for dismissal of this proceeding the fact that the above-named District Court had found that the respondent 's employees acting unanimously had voluntarily formed the D G W. U and at all times freely administered and maintained it This finding of fact is not binding upon the Board and does not preclude an independent finding by the Board on this issue Section 10 (a) of the Act provides The Board is empowered . . . to pievent any person fioni engaging in an y unfair labor practice ( listed in section 8) affecting commerce This power shall be exclusive, and shall not be affected by any other means of adjustment or pievention that has been or may be established by agreement , code, law, or otherwise. [Italics added ] See Matter of National Electric Products Corp and United Electrical and Radio lvoikens of America, Local No 609, 3 N. L R B. 475, 500 See also Union Premier Food Stores, Inc. V . Retail Food Clerks and Managers Union , Local No 1377 et al , 98 F (2d) 821 (C. C. A 3), where it was held that the Distinct Couit was without authority to conduct an election to determine the exclusive bargaining representatiie of certain employees since the Act vests power to determine that question exclusisely in the Board . Cf Blankenship v Kirby, 96 F (2d) 450 (C. C A. 7) ; Int'l Brotherhood of Teamsters v Int'l Union, 106 F. (2d) 871 (C. C. A 9). 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD injunction suit between the respondent and the I. L. G. W. U., and that under the Act the Board is not empowered to take cognizance of alleged law violation, coercion, or intimidation on the part of the complaining union. The Trial Examiner took these motions under advisement and re- quested the respondent to submit a written statement of the evidence it would offer to prove the averments set forth in Parts A and B of the answer and any other parts of the answer referred to in the motion to strike. The respondent submitted no statement of evidence in support of Part A of its answer except as to the paragraph re- lating to the wages and working conditions provided for in contracts entered into between the I. L. G. W. U. and other garment manu- facturers. On Part B of the answer the respondent submitted certain parts of the transcripts of testimony taken in an N. R. A. hearing, in which it was also the respondent and the I. L. G. W. U. the charg- ing union, and in the United States District Court injunction suit between the respondent and the I. L. G. W. U. The Trial Examiner refused the proffered evidence, granted the motion of the I. L. G. W. U. to strike, denied the request of the respondent for dismissal of the complaint based on Part A of the answer, and refused to receive the respondent's petition for investigation and certification of representatives as set forth in Part C of its answer. The Board has reviewed these rulings of the Trial Examiner and they are hereby affirmed. Prior to the commencement of the hearing, the D. G. W. U. filed a motion requesting that the Board conduct an election among the respondent's employees to determine whether they desired to be rep- resented by the D. G. W. U. or by the I. L. G. W. U., and that the hearing be postponed until the outcome of such election had been announced. Thereafter, on May 17 and June 3, 1939, the D. G. W. U. filed a petition and amended petition, respectively for investigation and certification of representatives. The Trial Examiner denied the motion and petitions, which rulings are hereby affirmed. The D. G. W. U. also filed an answer denying all the allegations relating to the unfair labor practices of the respondent, but admitting the existence of a closed-shop agreement between the respondent and the D. G. W. U. At the hearing the Trial Examiner excluded certain evidence offered by the respondent and the D. G. W. U., in some instances on the ground that it was irrelevant or immaterial and in others that it was cumulative. He permitted the parties to submit written offers of this proof. These rejected offers of proof have been considered by the Board and for reasons hereinafter stated the rulings of the Trial Examiner rejecting said offers are hereby affirmed. By stipulation DONNELLY GARMENT COMPANY 171 the parties placed in evidence, subject to the privilege of making ob- jections thereto on the grounds of relevance, materiality, hearsay character, or occurrence prior to the passage of the Act, certain por- tions of the record in a proceeding conducted in 1935 under Section 7 (a) of the National Industrial Recovery Acts in which the respond- ent was similarly charged by the I. L. G. W. U. with interference with the rights of its employees to organize,9 and of the record in the injunction suit brought by the respondent against the I. L. G. W. U., heard in the United States District Court for the Western Division of the Western District of Missouri before United States District Judge Andrew Miller.10 The Trial Examiner permitted these par- tial transcripts of testimony to be introduced in the record,11 and overruled all objections directed to the relevancy, materiality, and competency of certain questions and answers contained therein. He ruled, however, that the admission of such evidence was "not intended to enlarge the issues as defined by the pleadings or to reverse rulings heretofore made with respect to the introduction of evidence upon certain subjects." After the close of the hearing the respondent and the D. G. W. U. filed motions requesting the Trial Examiner to clarify his ruling, alleging that it was unfair, prejudicial, and denied them due process of law. The Trial Examiner denied these motions. We have examined the evidence contained in these partial transcripts in the light of the Trial Examiner's other rulings on the admission and exclusion of evidence 12 and find no prejudicial error in his denial of these motions. His denial of said motions is hereby affirmed. The respondent also filed with the Trial Examiner after the close of the hearing a motion for leave to file and make part of the record a copy of its petition for investigation and certification of the repre- sentatives of its employees, which had previously been filed with the Board's Acting Regional Director for the Seventeenth Region and e 48 Stat. 198 I L. G. W. U., Complainant v. Donnelly Garment Company , Respondent, Case No 160, N. R A Regional Labor Board , Twelfth Distriet. 10 Donnelly Garment Company, et al. v. I L . G. W. U, et al, D G . IV U Interveners, Case No 2924 11 Except as to the offer of the respondent to prove Part B of its answer , which we have already found above to be irrelevant to the issues drawn by the present complaint i2 It is manifest that the Trial Examiner 's ruling excludes any evidence in these partial transcripts relating , inter alia, ( 1) to contracts between the I L G W. U. and other gar- ment manufacturers , ( 2) to the claim of the respondent that it pays higher wages and maintains better working conditions than do other garment manufacturers , ( 3) to strikes and violence allegedly fomented by the I L. G . W U at other garment factories, (4) to the alleged conspiracy of the I. L G W U against the respondent , ( 5) to testimony of the respondent ' s employees that they were not interfered with , restrained , or coerced by the respondent in their choice of the D G. W U or their rejection of the I L G W. U., and that the D G. W. U was formed by the employees because of the strikes and violence occurring ' at other garment factories which the I L G W U. was attempting to organize. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rejected by him. The motion was denied by the Trial Examiner and his ruling is hereby affirmed. During the course of the hearing, the Trial Examiner made numer- ous rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the conclusion of the hearing the parties were afforded an op- portunity to argue orally before the Trial Examiner and were advised that they might file briefs with him. The parties did not avail them- selves of the opportunity to argue orally before the Examiner, but filed memorandum briefs. On October 11, 1939, the Trial Examiner filed his Intermediate Report, finding that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2) and (3) 13 and Section 2 (6) and (7) of the Act. He further found that May Fike had not been discriminatorily dis- charged. He recommended inter ilia, that the respondent cease and desist from the unfair labor practices which it was found to have en- gaged in, withdraw all recognition and completely disestablish the Donnelly Garment Workers Union as the representative of its em- ployees for the purposes of collective bargaining, cease and desist from giving effect to its contracts and check-off agreement with said Donnelly Garment Workers Union, and that the allegations of the complaint as to May Fike be dismissed. On October 12, 1939, the case was transferred from the Regional Office of the Seventeenth Region to the Board in Washington, D. C., and continued before the Board, pursuant to Article II, Section 32, of National Labor Relations Board Rules and Regulations-Series 2. At the request of the parties the time allowed for filing exceptions to the Intermediate Report and to all parts of the record was extended by the Board from November 1 to December 1, 1939, and on that date exceptions were filed by the respondent, the D. G. W. U., and the I. L. G. W. U. Briefs were thereafter filed by the same parties, which have been given due consideration by the Board. On January 9, 1940, a hearing for the purpose of oral argument was conducted before the Board in W7ashington, D. C., at which the re- spondent, the D. G. W. U., and the I. L. G. W. U. appeared. The Board has considered the exceptions to the Intermediate Re- port and to all parts of the record and, save as consistent with the 11 He found that the discharge of Sylvia null was discriminatory n ithin the meaning of the Act but did not recommend reinstatement of back pay for her for reasons discussed in Section D, infra DONNELLY GARMENT COMPANY 173 findings, conclusions, and order set forth below, finds them to be with- out merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 14 The Donnelly Garment Company is a Missouri corporation with its principal office and factory located at Kansas City, Missouri. It is engaged in the business of designing, manufacturing, selling, and distributing ladies' garments, under the trade name of "Nelly Don." The respondent, in the course of its business, purchases over 99 per cent of its raw materials-consisting chiefly of cotton, wool acetate, rayon, and linen-in States other than the State of Missouri. In the years 1937 and 1938, the respondent's sales amounted to more than $4,000,000 per year. Ninety-six per cent of the garments designed, manufactured, and sold were caused by the respondent to be trans- ported and distributed to customers in States other than the State of Missouri. Officers of the respondent company are : Nell Donnelly (Mrs. James A.) Reed, president and treasurer; Alex C. Green, vice president; R. J. Ingraham, secretary. The principal departments of the respondent and the persons in charge of them are : production, Lee Baty ; mer- chandising, retail store, and receiving, Elizabeth Reeves; office man- ager, J. B. Bachofer; employment manager, Ella Mae Hyde.- During the peak production periods of the year, the respondent employs more than 1200 persons. The parties stipulated and agreed that the operations of the re- spondent have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and that the respond- ent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE ORGANIZATIONS INVOLVED International Ladies' Garment Workers' Union is an unaffiliated' labor organization maintaining organizational offices in many States_ It admits to membership the plant employees of the respondent. Donnelly Garment Workers Union is an unaffiliated labor organiza- tion. According to its bylaws, it admits to membership all employees. of the respondent. 14 The findings in this section are based in part on a stipulation of facts signed by all' parties. 11 For further findings concerning the respondent 's supervisory staff see infra, Section, C 1. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Events prior to the effective date of the Act The I. L. G. W. U. made its initial efforts to organize employees of the respondent in 1934 when it established a regional office in Kansas City, Missouri. On March 15, 1934, an open meeting of the I. L. G. W. U. was held in Musicians' Hall in Kansas City to which all em- ployees of the respondent were invited. Few of the operators (i. e., production employees paid at piece-work rates) attended, but a num- ber of the respondent's officials, supervisors, and instructors were pres- ent. Soon after, several of the respondent's employees, including Glynn Brooks Yarnell,'6 who had been an operator in the respondent's plant since December 1924, made application for membership in the I. L. G. W. U. In June 1934 Mrs. Yarnell held a dinner at her home attended by 12 or 13 of her fellow employees. At this meeting the girls discussed the advisability of joining the I. L. G. W. U. and of forming a local branch. Glynn Brooks Yarnell was discharged in July 1934. Within a few months all except one of the girls who had attended the dinner were either laid off or discharged by the re- spondent.17 On December 6, 1934, the I. L. G. W. U. filed a charge against the respondent under Section 7 (a) of the National Industrial Recovery Act, alleging that eight operators had been laid off because they had joined the I. L. G. W. U. Before proceedings were completed and a decision issued, the National Industrial Recovery Act was declared unconstitutional by the Supreme Court of the United States. The record 18 establishes that the respondent, through its supervisory employees, openly and actively resisted the initial organizational ac- tivities of the I. L. G. W. U. In 1934 Mrs. Elizabeth Reeves, who was then production manager, had expressed the opposition of the respond- ent to the I. L. G. W. U. She made a practice of questioning employees concerning their relations with the I. L. G. W. U. She criticized several operators for joining or applying for membership in the I. L. G. W. U. She told various employees that they had been "listen- ing too much to somebody outside," that "Donnelly's don't belong to the union (I. L. G. W. U.) and they never will," that she had thought they "had better sense" than to join the I. L. G. W. U., and that they 18 The complaint , exhibits, and transcript designate this employee as Glynn Brooks At the close of the hearing the entire record was amended to designate her Glynn Brooks Yarnell 17 we make no findings with respect to the reasons for these discharges which occurred prior to the effective date of the Act and which are not in issue herein >e Evidence of the activities of the respondent in 1934 is contained in the partial tran- script of testimony from the N. R A hearing conducted early in 1935 , which transcript was introduced in this proceeding pursuant to a stipulation of the parties DONNELLY GARMENT COMPANY 175 had been misled in doing so.19 There is abundant testimony, also, that the respondent's instructors, who were in charge of the operators and at that time admittedly had authority to recommend lay-offs and dis- missals, warned the operators to "let the International (I. L. G. W. U.) alone" if they expected to keep their jobs. In a conversation with an employee during 1934, Mrs. Allison, an instructor, labeled I. L. G. W. U. leaders "dirty foreigners," 20 and Grace Gnotta'21 also an instructor, referred to those who had joined that organization as the "scum" of the respondent's employees. The dominant and often reiterated note in the respondent's anti- union campaign during this period was a plea to the employees to be loyal to Mrs. Nell Donnelly Reed, president of the respondent. For example, the record reveals that Mrs. Allison, one of the instructors, forbade 'a discussion of unionism in the plant, and added : "You should have more respect for your employer than to talk unionism in here." Mrs. Martha Gray, in charge of the respondent's outlet store,22 talked to Virginia Stroup, an operator in one of the sewing sections who had joined the I. L. G. W. U., and reminded her that the firm had been good to her by continuing to employ her during the "hard months" and that in return Mrs. Stroup owed it to the Company to be fairer than to join the I. L. G. W. U. Mrs. Gray also said that she "would hate to think that old David Dubinsky would come in here and tell Mrs. Donnelly (Reed) what to do." The testimony of May Fike is un- denied that in February 1935 or thereabouts, while the I. L. G. W. U. drive was being pressed, employees in groups of 10 were sent by their instructors to Mrs. Reeves' office, where Mrs. Reeves talked to them about loyalty to the respondent. Also during this period employees were told that Mrs. Reed had built up the business of the respondent in order to keep them supplied with work and that an outside labor organization should not be allowed to come in to run it. On or about December 12, 1934, Mrs. Reeves sent for Virginia Stroup, one of the respondent's employees who had obtained a charter for a local branch of the I. L. G. W. U. Mrs. Stroup told Mrs. Reeves that she was the shop chairman for the I. L. G. W. U. and that it was her duty to determine why employees who were members of 19 Mrs Reeves denied saying that they had been misled , but did not deny the other quoted remarks attributed to her. She admitted having talked to these employees about their relationship to the I. L. G. W U and in many instances was unable to remember whether she had made the statements that other witnesses testified to we are convinced from the record that Mrs. Reeves engaged in the activities herein described and made the remarks we have quoted. 20 Mrs . Allison denied ever having discussed the I L G W U with Lillian wales, the operator who testified concerning this remark. However, the record contains so many instances of anti-union statements attributed by other employees to Mrs Allison that we are unable to accept her general denial in this instance, and accept as true the statement of Lillian wales. 21 In parts of the record this employee is referred to as Grace Gonotte. 22 See tinfra. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the I. L. G. W. U. were laid off. Mrs. Reeves stated that she did not intend to give Mrs. Stroup any information and immediately instructed Mrs. Hyde, the respondent's employment manager who was present at the interview, not to release any such information, for "that is none of Virginia's business." A short time later, when Mrs. Stroup attempted to negotiate with the respondent in regard to a grievance of Pauline- Lutz, an employee who was a member of the I. L. G. W. U., the re- spondent unequivocally refused to deal with Mrs. Stroup. At the con- ference, Mrs. Reeves criticized Mrs. Stroup's production work, told her that she was wasting too much time away from her machine talking to other employees, and threatened her with dismissal unless she increased her piece-work production to a point where it met the minimum wage rate set by the N. R. A. code in effect at that time. The respondent stood firm on its position not to deal with the I. L. G. W. U. and Mrs. Stroup was entirely unsuccessful in adjusting the grievance of Pauline Lutz or of any other of the respondent's employees who were members of the I. L. G. W. U.23 A few weeks later, the Kansas City office of the I. L. G. W. U. attempted to open negotiations with the respondent. On January 25, 1935, Meyer Perlstein, regional director of the I. L. G. W. U., and Virginia Stroup joined in addressing a letter to the respondent, stating that the I. L. G. W. U. had granted a charter to a group of the respondent's workers who had applied therefor. The letter asserted that these employees, since joining the I. L. G. W. U., had suffered discrimination and had been threatened with discharge unless they should abandon their union affiliation. In conclusion, the respondent was requested to grant the L L. G. W. U. an opportunity to present the views of labor and to adjust peaceably employer- employee differences. The record does not indicate whether or not the respondent made any reply to this letter. Within a week or two after the receipt of the I. L. G. W. U.'s letter, the respondent, acting through certain of its supervisory employees,, commenced the formation of an organization among its employees to be known as the "Nelly Don Loyalty League." Mrs. Martha Gray, in charge of the respondent's outlet store '21 and Mrs. Strickland, an employee in the pattern-making department,25 took the lead in forming the League. On February 5, 1935, plans were laid at a meeting at the home of Mrs. Gray, which was attended by approximately 46 em- ployees representing the various divisions of the respondent's- factory. Memberships for the League were solicited in the plant during working hours by circulation among the employees of membership pledge z3 These facts aie recited here for the purpose of showing the respondent 's attitude toward the I L G. AV U during this period 24 See sn fra 21 The record does not disclose the details of Mrs Strickland's employment except that she received a salary of $5000 per week , which was a salary higher than that received by any other employee in the pattern department. DONNELLY GARMENT COMPANY 177 -cards 2E and a statement which declared that the employees recognized the generous treatment received from Mrs. Reed, the respondent's president, and would resist the efforts of outside labor organizations to negotiate with the respondent on their behalf.27 In contrast to the hostility with which it met the advent of the I. L. G. W. U. in the plant, the respondent not only interposed no obstacles to the organization of the Loyalty League, but also by afCima- tive assistance facilitated its progress. In some sections of the plant the instructors in charge of the sections assisted with the circulation •of these documents and told the employees to sign them. In other areas of the factory Mrs. Gray, accompanied by Mrs. Strickland, distributed the League membership cards. Virginia Stroup, who at that time was president of the local branch of the I. L. G. W. U.,28 was told by Mrs. Strickland, in the presence of Mrs. Gray whom we find hereinafter to be a supervisory employee of the respondent, that the cards should be signed by the employees in order to protect their jobs, because Mrs. Reed would close the plant before she would allow it to become a union shop. At the same time, Mrs. Stroup was refused a membership card because she belonged to "another organization." Virtually all the respondent's supervisors, except Mrs. James A. Reed, president and principal owner, Lee Baty, production superin- tendent,2a and perhaps Mrs. Anna Wherry, factory manager, Were 29 The pledge cards aie as followti s • I, the undersigned , hereby pledge myself to become a member of the Nelly Don Loyalty League to take part in the activities and to support said league to the best of my ability. I have signed this pledge of my own free will without coersion [ sic] or intimidation of any kind 21 The full statement follows : The employees of the Donnelly Garment Company hereby associate themselves under the name of the "Nelly Don Loyalty League " We protest against and will resist all attempts of outside interference with the business of said company, or with our relations to the company as employees We recognize the fact that for many years this company has paid wages far in advance of the wages paid in similar factories That our working conditions are good ; that we have had practically continuous employment throughout the year which is almost unknown in this line of industry ; that we have had generous and fair treat- ment from Nelly Don (Mrs. Reed ), President of the company, and we repose our con- fidence in her rather than in professional agitators who are sent here to create discontent among the employees of the company This document was received as an exhibit by the Trial Examiner subject to further identi- fication , after the witness, Rose Todd, stated when asked if it was sent out with the formation of the Loyalty League : "Yes, something similar to that, as near as I can tell it would be a copy." Subsequently, May Fike identified the document as the statement which was circulated among the operators at the time of the formation of the League. The record does not indicate that the document was thereafter unqualifiedly received in evidence by the Trial Examiner . In view of the testimony of these two witnesses, we hereby rule that the document was properly identified and it is hereby received in evidence. 28 This was the local chartered by the International to admit employees of the respond- ent to the membership. 28 At the time the League was organized in February 1935, Mrs. Elizabeth Reeves was production manager. Mr. Baty did not succeed her until June 1935 . Mrs Reeves was a member of the League. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of the League. Mrs. Reeves, production manager at that time, Dewey Atchison, her assistant, and Mrs. Ella Mae Hyde, employ- ment manager, were among the supervisory officials who testified that they were members of the League. The membership included all in- structors and other department heads in the plant. Its first two presidents were supervisory employees of the respondent. Herbert Mutchler,30 who was no longer in the employ of the respondent at the time of the hearing in this proceeding, was the first president of the League and continued in office until early in 1937. He was succeeded by Rose Todd, who held office until after she was elected General Chairman of the D. G. W. U. in April 1937.31 The League has no constitution or bylaws and no regular meeting dates; nor do its members pay clues. Since its inception it has spon- sored a number of social activities, such as picnics and dances, but as will subsequently appear its principal energies have been devoted to obstructing and interfering with the efforts of the I. L. G. W. U. to organize the respondent's employees. The events recited above convince us that prior to the effective date of the Act the respondent's supervisors expressed to employees the uncompromising hostility of the respondent toward all labor unions and particularly toward- the I. L. G. W. U. Employees were made fully aware of their employer's attitude and those who applied for membership or joined the I. L. G. W. U. did so secretly. During this period it was made plain to the employees by their supervisors that loyalty to the respondent meant renunciation of unionism. In Febru- ary 1935, when the I. L. G. W. U. requested a conference on behalf of those employees who had joined that organization, the respondent's agents immediately organized the Loyalty League for the purpose of preventing other employees from affiliating with the I. L. G. W. U. The membership and influence of management representatives in the Loyalty League enabled the respondent to foster and organize em- ployee resistance to outside unions. The respondent contends that Mrs. Martha Gray, who "instigated" the League and at whose home the organizers met, is not a supervisory employee in charge of the outlet store, but is no more than the senior clerk in point of service, and that therefore the responsibility for her acts cannot be attributed to the respondent. We cannot agree with this contention. In the first place, we believe that the evidence estab- lishes that Mrs. Gray is the manager of the store. The store, which is located in the same building with the respondent's factory, is oper- 30 The Trial Examiner found Herbert Mutchler was a supervisory employee. The record shows that Mutchler formerly held the position occupied by Rose Todd at the time of the hearing in this proceeding. Since we find in Section C 1, infra, that Rose Todd is a supervisory employee , we herewith make the same finding as to Mutchler. 31 The formation of the D G. W. U. is discussed in detail in Section C, vnfra. DONNELLY GARMENT COMPANY 179, ated to dispose of remnants, discontinued lines of merchandise and the like. It employs approximately 6 saleswomen. Rose Todd, who, had been an employee of the respondent for a number of years, and whom we find infra to be a supervisory employee, stated when asked about Mrs. Gray's relation to the outlet store: "I assume you would say that she is in charge." Mrs. Elizabeth Reeves, who at the time of the hearing was in charge of the respondent's merchandising depart- ment, testified that Mrs. Gray generally reported to her. Since Mrs. Reeves does not personally operate the outlet store, it is reasonable to believe that the duty was left to Mrs. Gray and that it was matters pertaining to the management of the store which she reported to Mrs. Reeves. That the employees regarded Mrs. Gray as in charge of the outlet store is evidenced by the publication of the following announcement in the N. D. A. A. News, a news sheet published by an athletic association composed of employees: Mrs. Gray Announces Spring and Wool Remnants Closeouts Also Virginia Stroup, one of the respondent's operators at the time, the League was organized, considered Mrs. Gray an "executive" of the respondent. Mrs. Gray testified, but did not describe the nature of her duties. While it is true that she does not have authority to hire or discharge the other clerks in the store, we are convinced from the evidence that Mrs. Gray directs the work of these salespeople and is responsible for the store. On the basis of the above-stated facts we find that Mrs. Gray is the manager of the respondent's outlet store, and as such is a supervisory employee for whose statements and acts re- lating to labor policies the respondent is responsible. Moreover, the respondent is responsible for the acts of Mrs. Gray, Mrs. Strickland, and others who assisted them in bringing the Loyalty League into existence, inasmuch as the respondent's officials ratified and adopted their acts by joining and participating in the League and by permitting those individuals and instructors who were supervisory employees to circulate pledge cards and canvass for membership on company time and property, as we have hereinabove found. Membership of such officials as the employment manager, the production and merchandise manager, assistant manager, instructors, and other supervisors with authority to discipline and to recommend discharges and lay-offs, coupled with their patent support, must inevitably have convinced the rank and file of the respondent's employees that here was an organ- ization approved by the respondent to which they must give their support, and that they must correspondingly refrain from joining or assisting the I. L. G. W. U. which the League so consistently opposed. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent contends that since the above-related activities took place prior to July 5, 1935, the effective date of the Act, they are entirely irrelevant to the issues in this proceeding and that all evidence thereof should have been excluded. This contention fails to recognize that the Loyalty League continued in existence after the effective date of the Act, and was a useful instrument in the forma- tion of the D. G. W. U., hereinafter discussed. Furthermore, evi- dence of an employer's attitude and conduct with respect to labor unions for a reasonable period before the effective date of the Act has often been admitted in evidence for the purpose of evaluating the significance of events occurring after such date.32 Having been inspired by the respondent and fully supported by its officials from its inception, we conclude and find that the League was dominated and controlled by the respondent and that prior to the effective date of the Act the respondent used it to prevent its employees from joining the I. L. G. W. U. or any other outside labor organization.33 B. Interference, restrahit, and coercion prior to April 27, 1937 After the National Industrial Recovery Act was declared unconsti- tutional34 in 1935, and the complaint issued against the respondent under Section 7 (a) of that Act was dismissed, the I. L. G. W. U. continued to some degree its efforts to enroll the respondent's em- ployees as members, but it was not until early in 1937 that an inten- sive campaign was renewed. On February 26, 1937, there appeared in the Kansas City Star, a daily newspaper published in Kansas City, Missouri, an article stating that the I. L. G. W. U. had announced a campaign to organize the respondent's employees and had appro- priated a large sum of money to be spent in a drive for recognition of the I. L. G. W. U. as the collective bargaining agent in the respondent's plant.35 32 See N. L. R. B. v. Pacific Greyhound Lines, Inc, 303 U S 272, rev'g 91 F. (2d) 458, and enf'g Matter of Pacific Greyhound Lines, Inc and Brotherhood of Locomotive Firemen and Enginemen, 2 N. L It B 431. 33 See infra for further findings concerning the League after the effective date of the Act. As to the events described in Section A, above, we make no findings of unfair labor practices , since they occurred prior to the effective date of the Act 34 See A. L A. Schechter Poultry Corp v. United States, 295 U. S. 495, declaring unconstitutional 48 Stat 195, et seq 35 Meyer Perlstein . regional director of the I L. G W U , was quoted in the article, as saying: "We are going to send a letter to the Donnelly Garment Company within a week suggesting a conference to establish collective bargaining on the question of wages and working hours If the firm refuses , we'll go to the consuming public of the country and advise buyers of the wages and hours prevailing there now . . . Within a year we'll have it [the respondent's plant] completely organized As soon as we have enough members, we'll call a strike. This will he in addition to cairving our side to the consumers." DONNELLY GARMENT COMPANY 181 A few days thereafter, on March 2, 1937, three members of the League 36 circulated among the factory and office employees of the respondent a loyalty pledge, which declared that the signers refused to "acknowledge any union labor organization." 37 . The pledge was circulated in the plant during working hours and in some, if not all, of the production sections it was passed from per- son to person for signature, at the instance of the instructors, while the machines were in operation. It was signed by some 1125 employees-practically all of the respondent's factory and office em- ployees except the instructors who were not asked to sign it in the first instance.38 When the pledge was presented to Mrs. Reed at her house on the afternoon of March 2, she expressed her pleasure at receiving such a statement, and requested that the signatures of the instructors be added. This was done on March 5. Thus, the respondent not only ratified that action but by express request had it circulated among other employees. The respondent contends that it cannot be held liable for commis- sion of an unfair labor practice in connection with the circulation of the pledge since the three employees who initiated the pledge had no supervisory authority and circulated it without instructions or suggestions of the management. We reject this contention and find that the respondent by permitting three employees openly to circu- late the loyalty pledge in the plant during working hours with the assistance of instructors, and by requesting that additional signa- tures be secured, gave approval and lent assistance and encourage- ment to the solicitation of its employees to pledge themselves not to join the I. L. G. W. U., and thereby interfered with, restrained, and coerced them in the free choice of a collective bargaining agent.39 On March 6, 1937, the Kansas City Journal-Post carried an article stating that David Dubinsky, president of the I. L. G. W. U., at a meeting of 700 union members in Kansas City, had officially launched a movement to organize employees of the respondent company. This 88 Mary Sprofera and Inez Warren , shipping clerks, and Pauline Schartzer, an office employee. 8T The text of the pledge : "We, the undersigners [ sic], as members of the Donnelly Gar- ment Co wish to make it known that we are positively happy and contented with the positions which we hold with this organization and refuse to acknowledge any union labor organization We are thankful for the real humanitarian interest extended by our em- ployer, Mrs Reed." The girls who circulated the pledge stated that they devised the pledge in answer to the announcement of the I L G W. U 88 The record does not explain the original omission of the instructors as signatories to the petition 89 It may be noted that the circulation of this loyalty pledge, coincidental with the re- newed organizational activities of the I L G. W. U among the respondent's employees, bears striking similarity to the circulation of the Loyalty League membership cards and anti-union statements by the respondent 2 years earlier, soon after the I L G W U. had initiated its campaign among the employees. In each instance, the pleas to the employees to be loyal to the respondent and to resist outside interference, appeared at crucial junc- tures in the campaign of the I . L. G. W. U to organize the respondent's employees 283082-41-vol 21--13 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD announcement was followed by a letter to the respondent from Wave Tobin, manager of the Kansas City Joint Board of the I. L. G. W. U., under date of March 9, 1937, requesting a bargaining conference between the I. L. G. W. U. and representatives of the respondent.40 Concurrently with the renewed organizational campaign of the I. L. G. W. U. the League was aroused to new activity.40a A meet- ing of all the respondent's employees took place on the afternoon of March 18, 1937, in the building housing the respondent's plant 41 The employees were notified orally during the working day by their instructors or other supervisory employees of the respondent that the meeting was to take place. The record affirmatively shows that among the supervisory employees who attended was Mrs. Ella Mae Hyde, the respondent's employment manager, and the instructors. It is not denied by the respondent, and we find, that this meeting was generally attended by supervisory employees. Rose Todd, president of the League, called the meeting and pre- sided. Chairs for the meeting were rented from the Kansas City Chair Rental Company in the name of the League. A committee appointed at this meeting to act on behalf of the employees there- after employed attorneys whose retainer fee was paid by a check of the Loyalty League. From these facts we conclude, despite the denial of Rose Todd,42 that the gathering was a meeting of the respondent-dominated Loyalty League. Rose Todd made certain opening remarks,43 after which Mrs. Reed was requested to come in and address the employees. Mrs. Reed brought with her the letter which the respondent had received from the I. L. G. W. U. under date of March 9, 1937, requesting a confer- ence, which letter was read to the employees. Mrs. Reed thereupon 40 In the meantime , the record indicates that the respondent's employees had become alarmed by hearing reports that at other gaunent factories in the Kansas City area, where the I. L. G. W. U. was conducting organizational campaigns , clashes had occurred Involv- ing picketers, non-striking workers, and local police The Trial Examiner excluded evi- dence of these incidents , occurring elsewhere than at the respondent 's plant and not involving the respondent's employees . and we have affil med his ruling During the course of the hearing the Trial Examiner stated that lie would permit testimony of threats of violence made directly to employees of the respondent by representatives of the I L G W U Some of the respondent's employees discussed the reports and expressed fear that an organizational campaign at the respondent 's plant might precipitate similar strikes and violence 40a During the 2 years which intervened between the formation of the League and the date of this renewed activity , there is no evidence that its character had been altered in any way Its original purpose was never disavow ed and officials and supervisors of the respondent continued to hold membership therein 41 The meeting was held on the second floor of the building in which the respondent's plant was located However, the respondent on March 18 , 1937 , did not have the second floor under lease 42 At the hearing Rose Todd testified that the meeting was a "spontaneous " gathering of the employees to discuss what means mi:;ht be adopted to protect the respondent's employees against anticipated violence in connection with the I L G W U 's pioiected organizational compaign. 43 She was unable to recall what she said at that time DONNELLY GARMENT COMPANY 183 made an extemporaneous talk. 'She expressed her pleasure ,it receiv- ing the loyalty pledge which had been presented to her on March 2, told the employees that the respondent corporation was an institu- tion to be proud of, that it had taken care of its employees by keeping the plant in operation during the depression, and that she intended to continue to run the business. Then she spoke of threats of vio- lence that the I. L. G. W. U. was) alleged to have made against the employees of the company, and promised protection against such violence. Finally, she directed her remarks to the question of union- ization of the plant. What she said at this point is a matter of dispute. The Board's witnesses testified that Mrs. Reed stated that she would closed her factory before she would permit it to be union- ized and that she would not allow "Dubinsky or any other `ski' to tell her how to run her business." According to the respondent's ver- sion,44 Mrs. Reed stated ". . . neither Dubinsky or any other but- tinsky is going to intimidate me or the company into forcing you to join the International Union J. L. G. W. U.) against your will." The respondent's version is corroborated by Mrs. Ella Mae Hyde, employment manager, by Rose Todd, who also denied that Mrs. Reed said there would be no union in her plant, and by several other wit- nesses. The respondent also offered to put on the stand about 1,000 of its employees who would testify that Mrs. Reed's version of what she said was correct and would deny that she said she would not permit the I. L. G. W. U. to come into her plant. The D. G. W. U. likewise offered to call as witnesses a large number of employees who would deny that Mrs. Reed said at the March 18 meeting that she would not permit members of the I. L. G. W. U. to work in the Donnelly plant. These offers were rejected by the Trial Examiner at the hearing because the testimony was cumulative in character. We have affirmed these rulings. 44 The respondent placed in evidence a puipoited transcript of Mis. Reed 's talk The circumstances surrounding the production in this proceeding of a transcript of Mis Reed's remarks are somewhat peculiar. Mrs Frances Strine, Mrs. Reed's secretary , testified that she made the transcript on the instruction of Mrs Reed The tenor of Mrs. Reed's re- marks at the March 18 meeting w as the subject of testimony in the injunction suit brought by the respondent against the I L G W. U in the United States District Court for the Western Division of the Western District of Missouri In that suit , Mrs Reed filed an affidavit stating the substance of what she claims to have said at the March 18 meeting, and her secretary, Frances Strine , made three affidavits concerning Mis Reed's appearance at the meeting. Yet in none of the affidavits is any mention made of the taking of a transcript of the speech . Mrs Reed herself testified in rebuttal in the District Court suit and did not tell of it Frances Sti uie stated she had not seen the copy placed in evidence between the day it was transcribed and the day she identified it at the hearing At the oral argument before the Board in Washington the respondent stated in explanation of its failure to produce the transcript of Mrs Reed 's speech in the injunction suit before Judge Miller that Mrs Reed 's testimony in rebuttal on this matter was met by objections which were sustained by the trial judge and that the evidence offered by the 1. L G W U. was so weak and discredited that it Ras unnecessary to answer it in detail' by introducing the transcript. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The. Trial Examiner found that Mrs. Reed stated that she would close her factory before she would permit it to be unionized. How- ever, we do not consider it necessary to resolve the precise conflict on this point since in our view, upon Mrs. Reed's own version of her speech, the March 18 meeting and the events which took place there constituted an unfair labor practice, as alleged in the complaint. We have found that the meeting was sponsored by the League, which was controlled by the respondent, and was attended by many of the respondent's supervisory employees. Through the presence of super- visors and the sponsorship of the League, which had for its purpose the exclusion of outside union organizations from the plant, the em- ployees must inevitably have been aware of the anti-union character of the meeting, and could not have been free to express their inde- pendent views. It may be true, as the respondent contends, that many of them feared the alleged threats of the I. L. G. W. U., but instead of permitting the employees to decide for themselves what attitude they, would adopt with regard to the I. L. G. W. U., the respondent seized upon such fears as may have existed to build up and strengthen a militant employee opposition toward that labor organization. Mrs. Reed painted the I. L. G. W. U. as the common enemy of both the respondent and its employees, and promised the employees the respondent's protection and assistance against that organization. Mrs. Reed disparagingly labeled David Dubinsky, president of the I. L. G. W. U., a "buttinsky," who was seeking to force the respondent's employees to join that union. She promised that no employee would be compelled to join any union against his will_45 While Mrs. Reed sought to appear as the disinterested de- fender of the respondent's employees in the exercise of their right to join or not to join a labor organization, against the background of the respondent's widely publicized hostility to the I. L. G. W. U. and the past repeated reminders to employees that loyalty to the re- spondent demanded repudiation of outside union organizations, we think that Mrs. Reed's remarks made it plain that the respondent's attitude toward unionization had not changed and that membership of any of the employees in the I. L. G. W. U. would not be tolerated. We find that by its sponsorship and domination of the March 18 meeting and by Mrs. Reed's talk at said meeting, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Before the meeting closed a committee composed of Rose Todd, Hobart Atherton, and Sally Ormsby was appointed and authorized to take steps necessary to provide protection for the employees. On "This statement should be contrasted with Mrs Reed 's approval of the closed-shop agreement with the D. G. W. U. less than 2 months later. See infra, Section C 2. DONNELLY GARMENT COMPANY 185 March 27, 1937, this, committee called on the law firm of Gossett, Ellis, Dietrich and Tyler of Kansas City, Missouri, where they con- ferred with Frank Tyler, a member of the firm. They stated that they represented the respondent's employees and desired to know what legal steps they might take to protect themselves from the alleged threats of the I. L. G. W. U. Mr. Tyler tentatively suggested the possibility of an injunction and promised to investigate the matter if a retainer fee of $500 were paid. On March 30, 1937, Rose Todd went to the First National Bank of Kansas City, Missouri, and there consulted with Edward F. Swin- ney, Chairman of the Board of the Bank, who agreed to lend her $1,000 on the note of the Loyalty League, without any other security. The note bears the signature "The Nelly Don Loyalty League, Rose Todd-President." Swinney testified that no one other than Rose Todd communicated with him in any way concerning the loan and no one guaranteed its repayment "except Miss Todd said she would see it was repaid." Swinney further testified that he had known Rose Todd for 10 or 12 years, that he had first met her at his office in the bank as "a kind of `all-around man' for the company." The First National Bank carries the account or accounts of the respond- ent corporation, and personal, accounts of Mrs. Nell Donnelly Reed, and of her husband, James A. Reed. At the time of the hearing the Loyalty League note had been repaid from monies collected through assessment of members of the League. Out of the $1,000 loan Attorney Tyler received a check for $500, dated April 1, 1937, and bearing the signature "The Nelly Don Loyalty League, Rose Todd, Pauline Hartman." Attorney Tyler investigated the use of an injunction as a means of obtaining protection for the respondent's employees and on April 13, 1937, the day following the decisions of the Supreme Court of the United States upholding the constitutionality of the Wagner Act,46 he reported to the committee adversely on the use of an in- junction proceeding and recommended the organization of a plant union as the most effective means of "securing protection." In the meantime, on April 22, 1937, the Kansas City Journal-Post, a daily newspaper, carried an announcement by the I. L. G. W. U. that Sylvia Hull, one of the respondent's operators, had been named as a delegate to the biennial convention of the I. L. G. W. U. Sylvia Hull appeared for work as usual at the respondent's plant on the morning of April 23. A few minutes after 8 o'clock while she was working at her machine on the eighth floor of the plant two groups of employees-each consisting of 15 or 20 persons-suc- 49 N L. R. B. v. Jones of Laugh1sn Steel Corporation, 301 U. S. 1, and other cases decided by the Supreme Court of the United States on the same day. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cessively gathered at Sylvia Hull's machine. They demanded to know what authority she had to represent them at the I. L. G. W. U. convention. Some of the girls stood on top of nearby tables. They -sang Loyalty League songs, told her they would not allow her to belong to a union, demanded that she surrender her League pin, threatened to tear her clothes off and to throw her out of the window. Mrs. Allison, the instructor in charge of Sylvia's section, was present throughout the demonstrations and did not order the girls back to work or take any action of the kind; Mrs. Bogart, in charge of the dividing department, was present and pointed Sylvia out to some of the demonstrators. Mrs. Hyde, the respondent's employment manager, appeared at the scene of the demonstration and told the demonstrators to return to work. The girls refused, saying they would 'not work while Sylvia was there. Mrs. Hyde thereupon took Sylvia down to her office on the seventh floor. They were followed by a number of the demonstrators, shouting that they would not return . to work until they heard Sylvia say she would go home. Sylvia then said : "I will go home. I didn't know the girls felt this way about it or I wouldn't have done it." According to -Sylvia's testimony, which is undenied, Mrs. Hyde told her she would have to go home. Sylvia replied that she did not want to quit, but would go home for the day. Mrs. Hyde, took her employee identification pass ' and Sylvia left a telephone number through which she might be reached .47 Later, during the same morning on which the above-described incidents occurred, Fern Sigler, an operator who had displayed on that day for the first time her I. L. G. W. U. membership pin, was subjected to three similar demonstrations. These three demonstra- tions took place at intervals between 8 and 10: 30 o'clock. The second and third groups of demonstrators numbered as many as 40 or 50 employees from various floors of the plant. They surrounded Mrs. Sigler's machine, sang songs, derided her, took her League pin from her, and shouted : "Get up and, go home ; we don't want you in here." The demonstrations subsided when Lee Baty, plant superintendent and production manager, accompanied by Rose Todd, ordered Fern from her machine to a nearby office. As Fern left the floor the girls shouted : "We are not going to work as long as she remains here." After a conference participated in by Baty, Mrs. Hyde, Rose Todd, and Fern Sigler, Mrs. Sigler was sent home. Baty promised to talk to the girls and "quiet them down," and to call her back when the unrest had subsided. Despite his promise, Baty admitted at the hearing that he did nothing to allay antagonism toward the I. L. G. W. U. in the plant. 47 The alleged discriminatory discharge of Sylvia Hull is discussed in Subsection D, infra. DONNELLY GARMENT COMPANY 187 Without deciding whether the respondent was responsible for orig- inating and inciting these anti-I. L. G. W. U. demonstrations, we are convinced that the respondent condoned, approved, and encouraged them. In the first place, the respondent made no sincere efforts to check the demonstrators. During the demonstrations instructors and some other supervisory officials stood by and made no effort to take steps which might have been effective in terminating the dem- onstrations. Even Lee Baty and Mrs. Hyde watched the demon- strations for a short time without seriously attempting to stop the participants. In the second place, the method which the respond- ent finally adopted to end the demonstrations revealed its attitude of approval. Instead of disciplining the demonstrators who had disrupted the normal operation of the factory for 2 hours or more, the respondent capitulated at once to their demands and laid off the two members of the I. L. G. W. U., who had admittedly violated no rule of the respondent and were attempting to do their work. Lee Baty, the respondent's production manager, claimed that there was no other way of restoring order in the plant. Even if it was neces- sary to remove these two employees from the floor at the time of the demonstrations, the respondent could then have made it clear to the demonstrators and their sympathizers that no further demonstra- tions against these two employees would be tolerated and that any efforts to stage them would result in severe personal discipline. Fur- thermore, the respondent's officials did not discipline or reprimand in any way those employees who participated in the incidents. Fi- nally, we think the approval and encouragement of the respondent is shown by the fact that despite Baty's promise to Fern Sigler that he would "quiet the girls down," he admitted at the hearing that he did nothing after the demonstrations to protect these two or any other employees who were members of the I. L. G. W. U. from the recur- rence of such demonstrations and the accompanying threats of vio- lence, or otherwise to make it possible for these two employees to return to their work in the plant unmolested. We find that the respondent approved of and encouraged the demonstrations and took advantage of them to reveal once more to its employees its hostility to the I. L. G. W. U. and its support of anti-I. L. G. W. U. activities. We further find that by such action the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act.d8 We further find that by using the company-dominated Loyalty League, as hereinabove described, for the purpose of impeding and 98 See Matter of General Shoe Corp . and Georgia Federation of Labor, 51 N. L. It. B 1005, mod. and enf'd in N. L it. B. v. General Shoe Corp ., 99 F. (2d ) 223 (C. C. A. 5) ; Matter of General Motors Corp. and Delco -Remy Corp and International Union of U . A. W. A., Local No . 146, 14 N. L. R. B. 113. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preventing the organization of its employees by the I. L. G. W. U., the respondent has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. C. Domination of and interference with the f or'r ation and adminis- tration of the D. G. W. U. and contribution of support On April 27, 1937, a meeting of employees took place immediately after working hours on the second floor of the building in which the respondent's plant was located.49 The record establishes that it lasted approximately an hour. Rose Todd opened the meeting and stated that its purpose was to organize a union which would be called the "Donnelly Garment Workers' Union." Miss Todd pointed out that the League was no longer adequate to withstand the pressure of outside labor organizations and that a plant union had become neces- sary. She thereupon introduced Attorney Tyler who advised the assembled employees to form an independent, unaffiliated labor • organization. After his talk it was unanimously decided by a viva voce vote of the approximately 1,300 assembled employees to form such a union. A nominating committee of five was then appointed by Rose Todd to select a General Chairman and eight Group Chair- men to serve as representatives and officers of the new organization. While the committee retired to select its nominees, charter member- ship cards, previously prepared, were distributed for signature. Thereafter, Attorney Tyler read the bylaws which the committee had requested him to draft.50 They were immediately adopted without alteration. The nominating committee returned to the meeting and presented the names of the nominees for offices in the organization, who were unanimously elected, with Rose Todd as General Chairman. The 1,300 membership cards previously distributed were collected and the meeting declared adjourned. The Loyalty League played a leading role in the formation of the D. G. W. U. Rose Todd testified that she, Hobart Atherton, and Sally Ormsby were instrumental in calling the meeting of April 27 after "a general request from a great many employees that we try to do something for our own protection." The persons named con- stitute the committee appointed at the Loyalty League meeting of 49 At the time of this meeting , the respondent did not have under lease the second floor of the building in which its plant was located , but leased only floors three to ten. "The bylaws reveal that the purpose of the D. G W U was in part the same as that of the Loyalty League, which , in the words of Rose Todd , had become inadequate to give the employees the "protection " they needed Article 2 of the bylans provides inter alia • "The purpose of this organization (D G W. U ) shall be . . . the protection of employees and members of this Union from coercion, intimidation , violence or threats of violence in order to force them to loin unions organized and dominated by outsiders not employees in this plant " DONNELLY GARMENT COMPANY 189 March 18 to determine what could be done by way of protection against the I. L. G. W. U. The ledger sheets of the Kansas City Chair Rental Company show that chairs were rented by the Nelly Don Loyalty League for use on that date,51 and the canceled checks of the Loyalty League show that the League drew a check in favor of the Chair Rental Company on May 4, 1937, in payment therefor. The respondent's telephone operator called on the interdepartmental telephone system each department of the plant and gave notice that Rose Todd was calling a meeting of employees on the second floor after work. Instructors and other supervisory employees assisted in notifying the employees and sending them to the meeting.52 Rose Todd presided at the meeting, but denied that she was acting in her capacity as president of the Loyalty League. On the basis of the evidence above recited, we find that the meeting of April 27 was sponsored and financed by the Loyalty League, through its president, Rose Todd, and the committee appointed by it at the meeting of the League on March 18. The assistance rendered by the Loyalty League in the formation of the D. G. W. U. was not limited to sponsoring and financing the organizational meeting of April 27. We have already pointed out that the committee appointed at the League meeting on March 18, 1937, engaged Attorney Tyler, that Rose Todd borrowed $1,000 in the name of the League and out of that loan paid $500 to Tyler as a retaining fee. Members of the League were subsequently assessed 50 cents each in order to retire that obligation.53 Although it is con- tended that the $500 retainer fee was in payment only for advice concerning a projected injunction suit against the I. L. G. W. U. for the protection of the respondent's employees, we are convinced that the fee covered Tyler's services in connection with the organization of the D. G. W. U. Prior to the organization of the D. G. W. U. the proposed injunction suit was rejected as a method of protection and instead Tyler advised the League committee to form an unaffili- ated union. He attended the April 27 meeting and read the bylaws which he had previously drafted on instruction of the League com- mittee. Thereafter, in May and June 1937, he drafted proposals for a closed-shop contract and wage agreement with the respondent. 51 The ledger sheet gives as the date of the rental April 28, 1937, but the manager of the K C. Chair Rental Company testified that entries are made in the ledger the day on which the chairs are returned rather than on the day they are delivered. ei See snfra, footnote 55 c3 At the hearing there was a controversy as to the date of the League meeting at which the assessment was decided upon The respondent contended it occurred between March 27 and April 5, 1937, before the organization of the D G W. U. was conceived. Mrs Elsa Graham Greenhow testified that she took minutes of such a meeting and that it occurred on May 25, 1937, immediately after a meeting of the D G. W. U It is unnecessary to resolve this conflicting testimony inasmuch as we find that the League paid the $500 re- tainer fee to Attorney Tyler, and that said fee covered the cost of his services in connec- tion with the foimation of the D G. W. U. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tyler received no fees from the D. G. W. U. until November 23, 1937, which was 7 months after its formation and at a time when the D. G. W. U. had undertaken other legal action involving court litiga- tion. The minutes of the Group Chairmen of the D. G. W. U. for June 15, 1937, record that Rose Todd stated in explanation of the fee : " . . . we paid Mr. Tyler $500 retainer's fee. He helped us write up our bylaws and working agreement and will advise us and help us when we need it." From these facts we find that the League financed the employment of Attorney Tyler, paid him a retainer fee of $500, and that the said fee covered the cost of his services in con- nection with the formation of the D. G. W. U. and the drafting of its bylaws. The day after the organizational meeting Rose Todd took the membership cards to Mrs. Reed, president of the respondent, and told her that the D. G. W. U. represented a majority of the employees. Mrs. Reed assured her at once that the respondent would consider the proposals of the D. G. W. U. On May 6, 1937, the Group Chair- men representing the D. G. W. U. met with Mrs. Reed and discussed certain matters concerning the terms of an agreement, covering all the respondent's employees. From these facts it seems clear, and we find, that recognition as the exclusive bargaining agent of the em- ployees was accorded the D. G. W. U. almost as soon as it was organ- ized, although no statement of recognition in writing appears until the contract between the respondent and the D. G. W. U. was signed on May 27, 1937, as hereinafter discussed. After the conference between Mrs. Reed and Rose Todd on April 28, at which Mrs. Reed agreed to consider the proposals of the D. G. W. U., Attorney Tyler commenced to draft an agreement for the D. G. W. U. to present to the respondent. The proposed draft of the agreement, containing a closed-shop provision, was approved by the Group Chairmen of the D. G. W. U. on the morning of May 27 and presented at once to Mrs. Reed. Attorney Tyler read it to her and other representatives of the respondent and urged that it be given prompt attention. Mrs. Reed replied : "I would like to have a little time to look over this agreement. However, I think it is very much in line-there will possibly be one or two little changes." Later, she added : "I think the only changes it will be necessary to make will just be legal phraseology-the spirit of this agreement is satisfactory." The minutes kept by the secretary of the Group Chairmen of the D. G. W. U. do not indicate that there was any discussion of the provisions, although several of the respond- ent's witnesses declared extended discussion took place. At the close of the conference it was agreed that Mrs. Reed and other representa- tives of the respondent would meet with Rose Todd and Mr. Tyler, DONNELLY GARMENT COMPANY 191 attorney for the D. G. W. U., at 3 o'clock that afternoon, and that Mr. Tyler could then report the outcome to the committee of Group Chairmen of the D. G. W. U. at 3:30 o'clock. When the D. G. W. U. committee met in the afternoon, as agreed, its minutes disclose that Mr. Tyler reported that the respondent had proposed three or four modifications, acceptance of which he recommended to the com- mittee. The only important change in the substance of the agreement was the addition of Section 4: The employer recognizes the election of a committee of the union to represent it, provided members of such, committee shall have been continuously employed by the employer for the period of at least a year immediately preceding election to such committee... ." 54 Attorney Tyler explained to the committee that the purpose of such a provision was "to eliminate the possibility of someone getting on this committee who is not a true representative of the employees and who may be working here merely to act as a traitor to the com- pany." The agreement as modified was then adopted by the com- mittee representing the D. G. W. U. and signed by the parties. Subsequently, on June 22, 1937, a supplemental agreement was entered into between the D. G. W. U. and the respondent. This agreement dealt with minimum wages for piece-work operators and other employees which had not been included in the earlier agree- ment. For the purpose of determining wage rates operators paid on a piece-work basis were classified in four groups. This classifica- tion was prepared for the D. G. W. U. by Lee Baty, production manager of the plant, and accepted by the committee representing the D. G. W. U. without change. The terms of the supplemental agreement were never submitted to the D. G. W. U. membership for approval. The D. G. W. U. demanded a minimum weekly wage of $16.50 for the respondent's lowest paid piece-work operators. Rose Todd explained that the I. L. G. W. U. had announced that it was seeking a $16.00 weekly minimum in the garment industry and she therefore thought it a good idea to improve a little on that mini- mum to defeat efforts of the I. L. G. W. U. to organize the respond- ent's employees. The respondent acceded to this demand. By its terms the original agreement of May 27, 1937, was to remain in effect for a period of 2 years, while the expiration date of the sup- plemental wage agreement of June 22, 1937, was set for July 1, 1938, with a provision for automatic extension from year to year unless either party gave written notice to the other of a desire to_ terminate it. On June 2, 1939, the original agreement of May 27, 1937, was 54 Italics added. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extended for a 2-year period without essential modification. So far as the record indicates the supplemental wage agreement has continued in effect without change. In August or September 1937 the respondent agreed, at the request of the D. G. W. U., to a check-off of the monthly dues of 25 cents. Each employee signed a card, prepared and distributed by the re- spondent, agreeing to permit his dues to be checked off at the end of each month. Pursuant to the agreement the respondent submits to the D. G. W. U. each month a memorandum showing the number of employees on the pay roll during the month and a check covering their dues. The D. G. W. U. issues no receipts, keeps no record of individual dues payments, and has no means of knowing what in- dividuals paid dues in past months. Nor were the general chairman and the treasurer of the D. G. W. U. able to state at the hearing what proportion of each month an employee must work to entitle the D. G. W. U. to collect his dues from the respondent. Soon after the D. G. W. U. 'was organized the Group Chairmen who composed its executive committee appointed a committee to represent the D. G. W. U. in adjusting piece-work rates with the respondent. Some 600 to 800 of the respondent's 1,300 employees were paid on a piece-work basis and the work of this committee was described as one of the most important functions of the D. G. W. U. The committee appointed consisted of Mrs. Lula Nichols, Josephine Spalito, and Rose Todd. Mrs. Nichols and Miss Spalito are employed by the respondent for the purpose of setting piece-work prices. The record shows that Mrs. Nichols has final authority in setting the rates on behalf of the respondent. The procedure of setting piece- work prices in the first instance and of adjusting subsequent com- plaints of operators that the price set is too low, is described in the following testimony of Mrs. Reeves : A. After a garment is designed, that particular garment is analyzed very thoroughly by Mrs. Nichols, who was a former piece-work operator ; Joseph Spalito, a former piece-work oper- ator; Rose Todd, a former piece-work operator. Prices are then discussed with the operator, and also the instructor .. . Q. If there is any employee who thinks the price is too low, what redress does she have? A. She discusses it with the people who set prices-Miss Todd, Mrs. Nichols, or her instructor . . . Q. Who has complete charge of the making of piece rates after the report is made by this committee? A. Mrs. Nichols. Thus, it becomes clear that the same persons who set the rates on behalf of the respondent in the first instance are also representatives DONNELLY GARMENT COMPANY 193 of the D. G. W. U. for the purpose of protesting, and negotiating with regard to those rates. In connection with the formation and subsequent administration of the D. G. W. U., property of the respondent has been freely utilized. Membership cards were mimeographed after working hours by employees in the respondent's Circular Department on a machine owned by the respondent. Copies of bylaws of the D. G. W. U. were produced on a ditto machine belonging to the respondent. The D. G. W. U. owns no typewriter and the secretary of the D. G. W. U. has often used a typewriter owned by the respondent for typing the minutes of meetings of the D. G. W. IT. and of the Group Chairmen. The respondent's bulletin boards have been freely used for the posting of announcements, notices of D. G. W. U. meetings and for a display of pins from which the D. G. W. U. pin was chosen. Rose Todd keeps the membership cards of the D. G. W. U. in a file of the respondent which is located near her desk in the plant. Meetings of the D. G. W. U. are announced by sending a so-called I. D. M. to each department of the plant through the respondent's regular messenger service. An I. D. M. is the respond- ent's term for interdepartmental memoranda. Memoranda concern- ing the D. G. W. U. business pass through the same channels as those of the respondent. The thread girls in the various sewing sections, who are assistant instructors, receive the D. G. W. U. notices and take responsibility for their circulation to the operators in their respective sections.55 Mail addressed to the D. G. W. U. is also delivered to D. G. W. U. representatives by the respondent's employees. The D. G. W. U. has never maintained an office outside the re- spondent's plant, and since its inception has conducted all of its business in the building occupied by the respondent. At a meeting of the D. G. W. U. on May 11, 1937, Rose Todd stated-- There are.probably a number of you that have not had occa- sion recently to be on the ninth floor, but on the right-hand side of the door you will find a desk where our work will be conducted. At this desk, which was assigned by the respondent to Rose Todd in connection with her work as supervisory employee, is conducted the day-to-day business of the D. G. W. U. Membership cards not collected at the organizational meeting on April 27 were subse- 61 The respondent offered to prove by the testimony of the employees that no instructor or supervisor had directed them to attend meetings of the D C W U. Since there is no conflict between this offer and the testimony that thread gills were responsible for the distribution of notices , there is no prejudicial error in the rejection of this offer of proof we think that the offer does not apply to the organizational meeting on April 27, 1937, since that was not, at the outset, a meeting of the D G W. U., but was, as we have found, a meeting sponsored by the Loyalty League. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quently signed and left at the desk by employees. Cards authorizing the check-off were signed by the members of the D. G. W. U. at Rose Todd's desk. The respondent made a practice of sending communi- cations relating to the D. G. W. U. to Miss Todd's desk for her attention. The Group Chairmen, who composed the executive com- mittee of the D. G. W. U., met for several months in the office of Beulah Spilsbury, a supervisory employee, and later in the respond- ent's first-floor auditorium. No rental was ever paid for the use of this property. Regular monthly meetings of the D. G. W. U. were held on the second and later on the first floor of the building occupied by the respondent, which building was owned by the Corrigan Estate. At the time of the organization of the D. G. W. U. neither of these floors was under lease to the respondent, but on May 10, 1937, the respondent signed a lease for all ten floors of the building and has since continued to lease and occupy all of these floors. Prior to May 10, the D. G. W. U. obtained the permission of the representative of the Corrigan Estate to use the second floor as a meeting place, and paid no rent therefor. After May 10, the D. G. W. U. continued to meet there until the respondent remodeled a portion of the first floor to serve as an auditorium, which then became the meeting place. Although the witnesses, Rose Todd and Lee Baty, stated that a monthly rental was agreed upon in May 1937, we think the record is clear that the question of paying rent for this space was not con- sidered for some months after the respondent had become the lessee of the space, and that the respondent never broached the matter to the D. G. W. U. The minutes of the Group Chairmen of the D. G. W. U. show that on November 13, 1937, the D. G. W. U. raised the question of -rental payments and that the respondent subsequently agreed to charge $3 per meeting, to be paid at the end of the D. G. W. U.'s fiscal year. Rose Todd was a full-time employee of the respondent. At the same time, as General Chairman of the D. G. W. U., she carried on the business of that organization representing 1,300 or more em- ployees. Soon after the formation of the D. G. W. U. at the respondent's Kansas City plant, Rose Todd went out to the respond- ent's temporary auxiliary plant at St. Joseph, Missouri, to organize the employees there. She was absent from her employment about one-half day without any salary reduction. At a meeting of the D. G. W. U. on May 11, 1937, she made the following statement : I do want to say this, that any of you, at any time, that want to talk to me, remember I can always be reached at noon or any time necessary.66 16 Italics added. DONNELLY GARMENT COMPANY 195 Miss Todd's testimony indicates that grievances are reported to her during the working day, often dealt with at once, and their dis- position reported to the aggrieved employee soon thereafter. Miss Todd checks on behalf of the D. G. W. U. all of the piece-work prices fixed by the respondent and all written instructions issued by the respondent to its operators. The respondent also submits to her each week, often during working hours, the pay-roll cards of its 600 to 800 piece-work operators which she examines for the purpose of determining whether each operator has received the minimum wage guaranteed by the respondent's agreement with the D. G. W. U. According to its bylaws, membership in the D. G. W. U. is open to all employees of the respondent, although the record indicates that the respondent's officials who have final authority to hire and dis- charge are not members. The membership roll of the D. G. W. U. includes the instructors, and inspectors or examiners who pass upon the quality of the operators' work and return unsatisfactory products to the operators. Among other members of the organization 67 are Ella Mae Hyde, employment manager, Lena Tyhurst, described by Baty as assistant factory manager or general inspector, Mrs. Nichols, in charge of setting piece-work rates, Marvin Price, adviser on mechanical matters and in charge of maintenance of the factory building and equipment, Ted Scoles, who distributes and directs the work in the cutting department, Mrs. Bogart, who delegates the work and instructs the employees in the dividing department, and Mrs. Martha Gray, who is in charge of the respondent's outlet store.b8 At a meeting of the Group Chairmen of the D. G. W. U. on June 15, 1937, it was proposed to restrict the privileges of department heads and instructors who held memberships in the organization by denying them the right to vote, but the record does not indicate that any such action was taken at that time or subsequently. 1. Conclusions as to the D. G. W. U. a. Supervisory employees (1) Instructors In the incidents described in the preceding section certain employees designated by the respondent as instructors have figured prominently. 67 Evidence of the membership of Mrs Hyde and certain other supervisory employees is found in the respondent's rejected offer of proof that these named employees would testify that they had joined the D G. W. U of their own free will and have since continued to belong to the D. G W. U. of their own free will and accord uninfluenced by the respondent. Even though the offered testimony was rejected, such an offer remains in the record as an admission of the respondent that the named persons are membeis of the D G W. U. See Int'l. Ass'n of Mach4nists, Tool and Die Makers Lodge No 35, affiliated with the I A M, and Production Lodge No 1200, affiliated with the I A M. v. N L R B., 311 U S 72 58 See supra. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent contends that they are not supervisory employees be- cause no authority to hire, discharge, or discipline has been vested in them since July 1935. The respondent's plant is in part composed of sewing sections. In each of these sections there are approximately 40 operators, each of whom operates a sewing machine. Assigned to each of these sections is an instructor and an assistant called a thread girl or floor girl. Among the duties of the instructor and thread girl in each section is the dis- tribution of materials and supplies with which the operators work. The instructors also distribute directions as to how the work is to be done and teach the operators how to execute each step of the process. This much is undisputed. It is also admitted by the respondent that prior to the advent of Lee Baty as production manager and plant superintendent the instructors had had a part in determining lay-offs and discharges in their respective sections and also had disciplinary authority. Baty testified that after he became production manager of the plant on June 25, 1935, he took from the instructors and from all other supervisory employees the authority to hire, discharge, and dis- cipline and vested all such authority in himself, so that he has been since that time the sole supervisory employee in the plant, and per- sonally observes the conduct, character of work, efficiency, and general attitude of all employees. The respondent has in its employ between 1100 and 1300 persons. On June 2, 1939, there were employed in the production and mainte- nance divisions, of which Baty is superintendent, 642 operators, 72 miscellaneous piece workers, 77 ironers, 11 folders, 41 examiners, 44 cutting-department employees, 15 dividers, 44 instructors and dis- tributors, 14 mechanics and helpers, 11 bundle boys, 52 clerical workers, 60 miscellaneous timekeepers, 20 porters and maids, working on 10 floors of the plant. In view of the number of employees and the size of the plant, we find Baty's testimony in regard to the elimination of supervisors to be incredible. The record convinces us that after June 25, 1935, the instructors continued to be supervisors in charge of the operators who work in the various sewing sections of the factory. The operators were never notified of the change in the authority of in- structors. Nor was there any apparent change in the conduct of in- structors after the advent of Baty in June 1935. None of the operators testified that Baty personally gave them any instructions or directions, or conferred with them about their work. The instructors continued to transmit directions to the operators, distributed the work and "kept the girls busy." The instructors are responsible to Baty and appar- ently report directly to him. Furthermore, Mrs. Reeves, who had preceded Baty as production manager and was afterward placed in charge of the respondent's merchandising department, stated in an DONNELLY GARMENT COMPANY 197 affidavit dated October 30, 1937, that "competent instructors teach the operators the particular operations to be performed by them, and constantly supervise the same." When work is slack in a section the instructor of the section determines the order in which operators shall take a day or half day off. Although Baty denied the instructors are charged with the duty of reporting on the efficiency of the operators who work in their respective sections, he admitted that he has asked the instructors on occasion and has received their opinions. The above-stated facts make it clear that prior to June 25, 1935, the in- structors were supervisory employees authorized to discipline their subordinates and to participate in the determination of lay-offs and discharges, and that since that time the respondent has continued to hold them out to the operators as supervisory employees and has given no notice of any kind to the operators that the instructors had any less authority than formerly. On the basis of all the evidence, we find that the instructors are supervisory employees representing the management of the respondent in its relation to the operators who work in the various sections. (2) Rose Todd Among the employees of the respondent who were active in the affairs of the Loyalty League and in the formation and administration of the D. G. W. U., Rose Todd has been outstanding. She was presi- dent of the League during the time that it played so effective a part in resisting the organizational campaign of the I. L. G. W. U. She was the dominating figure at the crucial meetings of the League on March 18 and April 27,1937. Rose Todd's status in the plant and her relation to the management of the respondent is a subject of dispute. She has been in the employ of the respondent for approximately 13 years. She had variously served as a machine operator, thread girl, and on occasion as an instructor; she also had been engaged in setting piece-work rates for the respondent and had assisted Dewey Atchison, a supervisory employee in the manufacturing division, in making spe- cial studies of production methods. She left her employment with the respondent in 1931 and for about a year worked for the Gernes Gar- ment Company where she first either assisted the production manager or in fact had charge of the plant and later acted as a traveling sales representative. When she returned to the employ of the respondent in 1933, she testified that she was told she would have to take whatever work there was. She worked for a time in the model department where model dresses are made up before general production in the- models is begun. Sometime prior to 1937 she was given a desk in the plant-first on the ninth floor and later on the seventh floor-and assigned to her present duty which is the responsibility for keeping the 283032-41-vol 21-14 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD various sewing sections supplied with the necessary materials for maintaining operations. She moves about throughout the various sec- tions of the plant each day, consulting with instructors and thread ;girls. When they report that requisitioned supplies have not been re- -ceived, Miss Todd locates them and sends them to their proper destina- tion. She is under the direct supervision of Lee Baty, the respondent's production manager. She receives a salary of $130 per month from the respondent; the D. G. W. U. pays her $65 per month for the work she does as General Chairman of that organization. The Trial Examiner found that Miss Todd is a supervisory employee of the respondent. We agree with the Trial Examiner that Rose Todd is employed by the respondent in a supervisory capacity,59 and so find. Moreover, we are of the opinion that Rose Todd occupied a close and confidential relation to the management of the respondent which was made known to the employees by the respondent's conduct. Her close relation to the management is illustrated by the fact that on April 23, 1937, when the demonstrations in the plant occurred, the dis- turbance was reported to Rose Todd. When Baty ordered Fern Sigler from the floor to the office, he was accompanied by Rose Todd. At the conference which followed, Rose Todd dominated the scene and took the lead in questioning Fern Sigler about her union affiliation, although both Baty and Mrs. Hyde, the employment manager, were present. A reading of the transcript of that conference shows that Rose Todd opened the conference and talked to Fern Sigler of the respondent's policy of operating an open shop as if she represented the respondent. For example : ". . . we have had union people work here for years .. . We don't care. We have hired union people . . . I talked to some of the girls yesterday afternoon and tried to get them to see that it is .all right if you want to work and belong to the union. However, they feel so keenly about it, we don't think we can do anything about it .. . We are going to run an open shop as long as the majority feels that way." Miss Todd also said : "My advice to you is, that if you feel that strongly about the union and have enough people to back you up, be in a union shop. I wouldn't anymore think I could join a union than the man in the moon. I'd expect to be put out on the` street and left there." Baty and Mrs. Hyde acquiesced in all that Miss Todd said and talked in the same vein. Thus, in this manner as well as in other ways hereinafter discussed, she was held out by the management of the respondent as an employee having authority to advise other -employees with respect to joining or not joining labor organizations. 69 Since she is a supervisory employee, the respondent is liable for her acts under the -doctrine of respondeat superior. Swift it Co v. N. L R. B , 106 F (2d) 87 (C. C A. 10), Tnod'g and enf'g Matter of Swift it Co. and Amalgamated Meat Cutters and Butcher Work- men of North America, Local No. 641, and United Packing House Workers Local Industrial Union No. 300, 7 N. L. R. B. 269. DONNELLY GARMENT COMPANY 199 Another fact pointing to the conclusion that Miss Todd represents the management is her statement during the conference above re- ferred to : "We went downstairs and sent those girls back to work and they went back to work," and her testimony at the hearing that on the morning of the Sigler-Hull demonstrations she told employ- ees, here and there in the plant, to return to their work. That the employees regarded her as a supervisor and agent of the respondent is evidenced by their obedience to her orders. Furthermore, her po- sition in the plant was such that the respondent's telephone operators accepted and carried out her instructions when she requested . an operator to notify each department that she wanted a meeting of employees. The respondent likewise knew that Miss Todd made use of its facilities in carrying on the business of the D. G. W. U., part of which was its campaign against the I. L. G. W. U.,60 for the respond- ent regularly sent to Miss Todd's desk in the plant information designed for the use of the D. G. W. U. and in other ways pointed out above, assisted her in administering the affairs of the D. G. W. U. Moreover, so far as the record indicates, the respondent did nothing to discourage any of these activities on company property and time. We find that Rose Todd occupied a close and confidential, as well as supervisory, position with the respondent and further find that in her activities in the Loyalty League and the D. G. W. U. she was acting for, on behalf of, and with the knowledge and consent of the respondent 81 61 That the D. G. W. U. was active in resisting the I. L G W. U is evidenced by the repeated requests of Miss Todd at D. G. W. U. meetings that the members report to her when they had been solicited by I. L . G. W. U. representatives and what these representa- tives had said. 81 Int . Asi'n of Machinists, Tool and Die Makers, Lodge No. 35 and Production Lodge No 1200 v. N. L R. B, 311 U. S 72, enf'g Matter of The Serriek Corp. and Int. Union, U. A. W. A., Local No. 459, 8 N. L. it. B. 621, in which the Court states : The statute , we think purposely , does not define the particular methods or agents by which the employer may intermeddle unlawfully So to confine representation of him would open easy escape fiom the Act's provisions Nothing in it requires that such representation be limited to officials having any particular kind or degree of authority such as "hiring and firing," "disciplinary power ," or even "supervisory capacity." These evidences of authority make more plain - the connection of the actor with the employer, but their absence does not preclude the existence of such a connection. What is required is that, substantial evidence show 'that'the actor, whatever his official position , is acting in fact on behalf of the employer , not for himself or others only, and that , by whatever method or means, the employer brings pressure to bear upon his employees which deprives them of free and independent choice. Cf Cupples Co., Manufacturers v. N. L R. B , 106 F. (2d) 100 (C C A. 8th), mod. and aff'g Matter of Cupples Co. and Matchworkcrs Federal Labor Union, 10 N L R B 168, where the Court refused to hold the respondent liable for the acts of an employee inas- much as the respondent had not held out the said employee as a person having authority to advise others with respect to joining or not joining labor organizations , had not directed the acts to be done, and the acts had not been done with the respondent's knowledge or consent. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) Hobart Atherton Hobart Atherton has been employed in the maintenance depart- ment of the respondent since November 1933. In addition to Ather- ton, the department employs one electrician, one carpenter, one painter, and three laborers. Atherton transmits instructions to the other employees in the department, receives requests for repairs, refers them to the proper employee, and keeps a record of the jobs assigned and those completed. He also assists with repair work wherever needed. Atherton and the respondent deny that he is a supervisory employee in charge of the maintenance department. To accept their testimony would leave this department without super- vision and would mean that each of the employees in the department decides for himself what repair jobs he will undertake. There is no evidence that Baty, the plant superintendent, in any way directs these employees in their work. We find that Hobart Atherton is a supervisory employee of the respondent in charge of the. maintenance department of the plant. (4) Ella Mae Hyde The respondent does not contest the Trial Examiner's finding that Mrs. Ella Mae Hyde is the employment manager for the respondent. However, there is testimony that she does not have final authority to hire and discharge employees. Such authority is unnecessary to es- tablish that Mrs. Hyde is a supervisory employee authorized to rep- resent the management with regard to its employment policies. Mrs. Hyde interviews all applicants, and makes recommendations when other department heads notify her of vacancies in personnel. She has apparent authority to lay off employees as evidenced by the fact that she sent Sylvia Hull home on the morning of April 23, 1937, after the anti-union demonstrations previously discussed. We find that Mrs. Ella Mae Hyde is a supervisory employee of the respondent in charge of its employment department and has author- ity to represent the management with respect to the respondent's employment policies. (5) Certain other supervisory employees We ' have, found that certain other employees, occupying responsi- ble position, were members- of the D. G. W. U. These persons are Mrs. Lena Tyhurst, assistant factory manager or general inspector, Marvin Price, in charge of maintenance of the building and equip- ment and adviser to Superintendent Baty on mechanical matters, Ted Scoles, distributor and director of work in the cutting depart- ment, and Mrs. Bogart, who delegates the work and instructs the DONNELLY GARMENT COMPANY 201 employees in the dividing department. Some of these employees had had authority to hire, discharge, and discipline employees before the appointment of Baty as plant superintendent and production mana- ger. They are all directly responsible to Baty and transmit his in- structions to other employees in their respective departments. There is no showing that other employees in these departments were aware of any curtailment of the authority of these department heads after Baty took charge. We find that the above-named persons are supervisory employees and as such were representatives of the management. b. Conclusions as to the respondent's formation and domination of the D. G. W. U. We have found that prior to the effective date of the Act the re- spondent adopted a policy of opposition and hostility to unions generally and to the I. L. G. W. U. specifically . In furtherance of this policy the management made it plain to the employees that loyalty to the respondent was synonymous with the rejection of out- side union affiliation. We have further found that the respondent inspired and dominated the Loyalty League which had for its pri- mary purpose the frustration of the efforts of the I. L. G. W. U. to organize the employees of the respondent . When in April 1937 the I. L. G. W. U. commenced to prepare for another organizational cam- paign among the respondent's employees, the respondent through the medium of the dominated Loyalty League and through its super- visory employees formed the D . G. W. U. to prevent such outside organization . The League hired the attorney who planned the D. G. W. U. and wrote its bylaws . It was the League which bor- rowed $1 ,000 at the First National Bank on the security of its mem- bers, who included prominent supervisory officials of the respondent, and later raised, by assessment of its members , $500 to pay his re- tainer fee, part of which retainer was for the attorney's services in organizing the D . G. W. U. The meeting of April 27, 1937, at which the D. G. W. U. was formed, was sponsored and financed by the League and was announced through the use of the respondent's facili- ties and attended by many of its supervisory staff . Rose Todd, presi- dent of the League, directed almost single -handed the course of that meeting. The rank and file of the respondent 's employees had heard nothing of the formation of a labor union prior to the meeting, but under the stimulus and pressure thus provided by the respondent, they emerged from that gathering with a labor organization of 1,300 members. Like the League, membership in the D. G. W. U. includes a large number of the respondent's supervisory employees whose presence 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inevitably prevents the organization from being free of the respond- ent's domination. Through Rose Todd who has been General Chair- man of the organization since its formation and whom we have found to be an agent of the management, the respondent has retained com- plete control of the policies of the D. G. W. U. The record is replete with evidence of the respondent's assistance in the administration of the D. G. W. U. The organization has no office or headquarters of any kind apart from the respondent's plant. The respondent's facilities have been freely used in carrying on the business of the D. G. W. U. The respondent denies knowledge of the use of its various facilities, but so persistent and frequent has been the practice of employment of the respondent's messenger, mail, and telephone service, bulletin board and filing cabinets, of conduct- ing union business at Rose Todd's desk, and of holding meetings of the Group Chairmen in a supervisor's office, that we find it impossible to believe that the respondent was without knowledge of these activi- ties. The fact that the respondent permitted meetings of the D. G. W. U. to take place on the first and second floor of the plant for many months without any question of charging rent therefor is also indicative of the respondent's encouragement of the organization. Rose Todd is allowed to take whatever time during working hours is necessary for handling union business without any deductions from her salary, as illustrated, inter alia, by her trip to the respondent's St. Joseph plant to organize the D. G. W. U. there. Although some of this business has been carried on before and after working hours, it is clear from the record that she makes a practice of taking up union business at any time during the day. Sometimes the respond- ent has made available for examination during working hours the pay-roll cards, which Miss Todd checks each week on behalf of the D. G. W. U. Grievances are reported to Miss Todd and considered by her within a few minutes or an hour. These facts demonstrate that the respondent has permitted and encouraged Rose Todd to make use of company time for conducting the business of the D. G. W. U. and has thereby lent assistance to the D. G. W. U. That the respondent lent encouragement and assistance to the D. G. W. U. becomes even more clear when its cooperative attitude toward the D. G. W. U. is compared with that expressed to the shop chairman of the I. L. G. W. U., Virginia Stroup, some 2 years earlier. In contrast to the hostility with which the respondent met the I. L. G. W. U. and its chairman, the D. G. W. U. was recognized by the respondent as a bargaining agent the day after its organiza- tion and Rose Todd, president of the League and General Chairman of the D. G. W. U., was accorded almost complete freedom to rove through the plant, engaging alternately in performing duties in con- nection with the production process, and in handling matters relating DONNELLY GARMENT COMPANY 203'• first to the Loyalty League and then to the D. G. W. U. without interference or objection from the respondent. This contrasting conduct necessarily conveyed to the employees the respondent's approval of the League and the D. G. W. U. The completeness of the respondent's domination is demonstrated by the personnel of the D. G. W. U. committee for the adjustment of piece-work rates. Two of the three members of the committee are, persons employed by the respondent to set piece-work rates in the first instance, and one of these two, Mrs. Nichols, is the respondent's final authority on what the rates shall be. The result is that the respondent sits on both sides of the bargaining table and the ag- grieved operators are left without any of the means of independent collective bargaining with regard to piece-work rates ordinarily afforded by a labor organization.62 Negotiations between the respondent and the D. G. W. U. with regard to the terms of the articles of agreement signed on May 27,. 1937, were completed in a few hours and the agreement signed on the same day it was submitted to the respondent. Despite Mrs. Reed's determined opposition to a closed-shop contract with the I. L. G. W. U., voiced only 2 months earlier,63 she made no' protest when the D. G. W. U. made the same proposal. She stated, "I understand that [i. e. closed shop] is very essential to industrial peace." The closed shop was granted and membership in the labor- organization of the respondent's choice became obligatory upon its employees. The contract also included a provision that the bar- gaining committee of the D. G. W. U. must be composed of em- ployees with at least 1 year of prior employment in the respondent's plant. It was put in at the request of the respondent and without protest from the committee representing the D. G. W. U. In effect it deprives the respondent's employees of their right to representa- tives of their own choosing. We do not mean to say that employees may not voluntarily limit their right in this way, but we think the- fact that a clause so favorable to the employer was inserted without. protest from the representatives of the employees is indicative of the respondent's domination. Although the quick negotiation of the contract with the D. G. W. U., the closed-shop clause insuring the stability and continuity of that organization, and the inclusion of a limitation as to persons who shall constitute the D. G. W. U. bargaining committee, standing alone, do not conclusively prove that the respondent dominated the D. G. W. U., where, as here, the record establishes other acts of direct intervention and assistance by " See National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc ., and Grey- hound Management Corp, 303 U. S. 261. m See supra, Section B. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent and where officers and membership of the employee organization include many of the respondent's supervisory em- ployees, we are convinced that these were further acts of domination of and interference with the D. G. W. U. and contributions of sup- port thereto .64 The respondent and the D. G. W. U. contend that its employees formed and joined the D. G. W. U. of their own free will in order to resist unionization by the I. L. G. W. U. and were not coerced or interfered with in their choice of the D. G. W. U. or in their rejection of the I. L. G. W. U. In support of this contention they sought to introduce the testimony of the members of the D. G. W. U. that they were not dominated by the respondent but formed, joined, and supported the organization of their own free will. They also offered evidence to show that the employees knew of the violence accompanying the I. L. G. W. U. organizational campaigns at other garment factories and of threats by I. L. G. W. U. representatives that the same tactics would be used at the respondent's plant and formed the D. G. W. U. for that reason. The Trial Examiner re- fused these offers of proof, ruling that such testimony was irrelevant and immaterial to the issues. We have affirmed the rulings of the Trial Examiner on those offers of proof because, giving full credit to such testimony and assuming that the employees had other motives for rejecting the I. L. G. W. U. and joining the D. G. W. U. as an instrument for opposing the I. L. G. W. U., the fact remains that the record shows the respondent to have committed acts of domina- tion, interference, and assistance in the formation and administra- tion of the D. G. W. U. which makes that organization company dominated and not the free agent of its members.eb Section 8 (2) proscribes such conduct on the part of employers regardless of the ostensible willingness of employees to accede to it. It is contended by the respondent that the Trial Examiner was in error in excluding testimony and exhibits concerning the provisions of various contracts existing between the I. L. G. W. U. and other garment companies, offered to show that the bargaining negotiations between the D. G. W. U. and the respondent were genuine, and the D. G. W. U. a bona fide union. Inasmuch as the issue before us is not whether the contracts were advantageous or beneficial to the employees, but whether the respondent dominated or interfered with 14 See Hamilton-Brown Shoe Co. v. N. L. R. B, 104 F . ( 2d) 49 (C. C A 8t1i), inod'g and enf'g Matter of Hamilton-Brown Shoe Co. and Local No 125 United Shoe Workers of America, C. 1 0., 9 N. L. R. B. 1073. CS N L R B V. Brown Paper Mall Co. (C C A 5th ), 310 U S 651; Matter of Brown Paper Mills Co , Ine and Int Brotherhood of Paper Makers, affiliated with the A F of L, 12 N L R B. 60; of Matter of New Era Die ConUpany and I A M Lodge 211.7, A F of 1,, 19 N L. R. B 227. DONNELLY GARMENT COMPANY 205 the formation and administration of the D. G. W. U., we believe the proffered evidence was correctly excluded. Upon all the evidence we find that the respondent dominated and interfered with the formation and administration of the D. G. W. U. and contributed support thereto; and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Conclusions with respect to the contracts We have found that the respondent dominated and interfered with the formation and the administration of the D. G. W. U. within the meaning of Section 8 (2) of the Act. The D. G. W. U., therefore, is not and never has been the lawful representative of the respond- ent's employees for the purposes of collective bargaining with regard to rates of pay, wages, hours of employment, or other conditions of employment. Under these circumstances, the closed-shop contract, the supplemental wage agreement, and the check-off agreement, and any extensions, renewals, modifications, or supplements thereof, and any superseding contracts or agreements, between the respondent and the D. G. W. U. are void and of no effect 66 Moreover, the closed-shop agreement was an integral part of the respondent's plan to discourage and prevent membership of its em- ployees in the I. L. G. W. U. The agreement required all employees of the respondent to join the D. G. W. U. and the bylaws of the D. G. W. U. prohibited its members from holding membership in any other labor organization. By making and publicizing among its employees a contract which compelled membership in the D. G. W. U. and in effect prohibited membership in the I. L. G. W. U. as a con- dition of employment, the respondent not only precluded its employees ,from making their own choice of a collective bargaining represent- ative, but also, by adoption of such an employment policy, discrimi- nated with regard to hire, tenure, terms, and conditions of employ- ment.87 The closed-shop proviso of Section 8 (3) of the Act does not protect such discrimination when committed pursuant to a contract with a labor organization found to have been company dominated. We find that the respondent by entering into and publicizing the closed-shop contract with the D. G. W. U. discriminated in regard to the hire, tenure, terms, and conditions of employment of its em- ployees, thereby discouraging membership in the I. L. G. W. U.; and 11 See Hamilton-Brown Shoe Co. v. N. L. R. B, 104 F (2d) 49 (C C A. 8th), mod'g and enf'g Matter of Hamilton-Brown Shoe Co. and Local No 125 United Shoe Workers of America, C. I. 0., 9 N L R B 1073. 07 Matter of Monticello Manufacturing Corporation and Steel Workers Organizing Com- mittee, No 2085, affiliated with the 0 1 0, 17 N L R B 1091. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the respondent thereby interfered with, restrained, ana coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The alleged discharges The amended complaint alleges that the respondent discharged from its employment Sylvia Hull on or about April 23, 1937, and May Fike, on or about April 26, 1937, and thereafter refused to reinstate them, because they had joined and assisted the I. L. G. W. U. Sylvia Hull became a member of the I. L. G. W. U. on March 23, 1937, and on April 22, 1937, it was publicly announced by the I. L. G. W. U. office in Kansas City that she would represent the respond- ent's employees at the biennial convention of that organization in May 1937. We have previously described the anti-union demonstration by employees against Sylvia Hull on the morning of April 23, 1937, which we have found was condoned and encouraged by the respond- ent. During the demonstration Mrs. Hyde, the respondent's em- ployment manager, removed Sylvia from her machine and told her that she would have to go home. Sylvia replied that she did not want to quit but would go home for the day. Mrs. Hyde took her employee identification card which was necessary for admission to the plant and when Sylvia asked how she would get back into the plant Mrs. Hyde told her that she would come down to the door and admit her. At the same time Mrs. Hyde took the telephone number of a neighbor through whom Sylvia stated she could be reached and agreed to call her, and also asked Sylvia to get in touch with the respondent if she did not receive a call, inasmuch as the telephone number Sylvia left was that of a neighbor. Sylvia there- upon left the plant. Mrs. Hyde testified that she attempted to reach Sylvia by telephone the next morning, April 24, and on another occasion within a month thereafter, on the instruction of Mr. Baty, the respondent's production manager."" Sylvia never received notifi- cation to return to work and never applied to the respondent for reinstatement. She did not testify in this proceeding. The respondent contends that Sylvia voluntarily left the employ .of the respondent. This contention is based on Sylvia's statement, made when a number of the anti-union demonstrators demanded that Sylvia go home, that she would go home, and on the fact that she did not thereafter seek to return. However, when Mrs. Hyde sub- sequently told her she would have to leave the plant, Sylvia refused to quit her employment but agreed to go home for the day. We 08 Mrs. Hyde testified that the purpose of these calls was to inform Mrs . Hull that "Mr. Baty would like to talk with her again." DONNELLY GARMENT COMPANY 207 think that the facts plainly show that Sylvia did not voluntarily give up her position with the respondent, and only acquiesced in a 1-day lay-off under pressure from the respondent. Furthermore, the fact that Mrs. Hyde agreed to call her indicates that the respondent did not consider Sylvia's statement a resignation of her employment. We find that Sylvia Hull did not voluntarily leave the employ- ment of the respondent, but that she was temporarily laid off by the respondent because of her membership in and activity on behalf of the I. L. G. W. U.69 We therefore find that the respondent dis- criminated in regard to her tenure of employment'70 thereby discour- aging membership in the I. L. G. W. U., and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. We further find that under all the circumstances the respondent's effort to communicate with her after her lay-off was equivalent to an offer of reinstatement 71 and that the respondent did not discriminatorily refuse to reinstate her within the meaning of Section 8 (3) of the Act. May Fike was first employed by the respondent in 1926 or 1927 and with the exception of approximately 2 years in 1931-32 was continu- ously in the employ of the respondent until May 1, 1937. She joined the I. L. G. W. U. on March 15, 1937. She is a sister of Fern Sigler, a member of the I. L. G. W. U., against whom three anti-union dem- onstrations were staged by the respondent's employees on the morning of April 23, 1937, as a result of which Mrs. Sigler was forced to leave the plant. Mrs. Fike, who was employed in a sewing-machine section adjacent to that in which these demonstrations occurred, testified that a number of the operators in her section talked to her in the presence of her instructor, Pearl Atchison, about the fact that Mrs. Fike's sister was a member of the I. L. G. W. U. She further testified that Mrs. Atchison questioned her on the morning of the demonstration about her knowledge of Fern Sigler's membership in the I. L. G. W. U. and about her own membership in that union. Mrs. Fike stated that she first denied and then admitted that she was a member of the I. L. G. W. U. She also testified that her instructor told her that 89 See Matter of Pennsylvania Greyhound Lines, Inc, Greyhound Management Co Corpo- rations and Local Division No. 1063 of the Amalgamated Ass'n of Street, Electric By and Motor Coach Employees of America, 1 N L R. B 1, 36, where the Board held a "furlough' because of union activities was a violation of Section 8 (3) of the Act. 70 The respondent does not contend that it was compelled to lay off Mrs Hull because of the demands of its other employees. Even assuming that such action was taken for that reason, the existence of such coercive pressure affords no defense to a violation of the Act See National Labor Relations Board v. Star Publishing Co, 97 F. (2d) 465, 470, enf'g Matter of Star Publishing Co. and Seattle Newspaper Guild, Local No 82, 4' N L. It. B 498 71 While Mrs. Hyde did not state that the respondent sought to offer Mrs. Hull reinstate- ment, from all the circumstances we infer that that was the respondent's purpose. The Trial Examiner in effect so found and did not recommend either reinstatement or back pay for Mrs. Hull. - 208 ' DECISIONS OF NATIONAL LABOR - RELATIONS- BOARD she would lose her job because of the demonstration against her sister, Fern Sigler. Mrs. Atchison denied that the conversation concerned Fern Sigler and the demonstration against her or that she asked Mrs. Fike whether she was a member of the I. L. G. W. U. However, Mrs. Atchison does not deny that she talked to Mrs. Fike that day, nor does she deny that she discovered Mrs. Fike was a member of the I. L. G. W. U. In view of the widespread commotion caused by the demon- stration against Fern Sigler in the adjacent section and the fact that it was generally known that Mrs. Sigler and Mrs.- Fike were sisters, we are persuaded that Mrs. Fike's version of the conversation is sub- stantially correct. Accordingly, we find that Mrs. Atchison knew that Mrs. Fike was a sister of Fern Sigler and that both were members of the I. L. G. W. U.,72 and warned her that she was in -danger of losing her job because of these facts. Since Mrs. Atchison is a supervisory employee, and in her capacity as instructor represented the manage- ment, the respondent is responsible for her statements and conduct.-, 3 The demonstrations and statements made by Mrs. Atchison to Mrs. Fike hereinabove described occurred on Friday, April 23. On Mon- day, April 26, when Mrs. Fike reported fpr work, Pearl Atchison told her that she would have to go home because work in that section was slack. It was customary, when work was slack, for girls in the section to take a half day or a day off in turn. However, Mrs. Fike had al- ready taken her turn. When she-protested at being laid off out of turn, Mrs. Atchison replied, ". . . that is orders from the office." Mrs. Fike thereupon went to Mrs. Hyde, the employment manager, and asked her if she had been singled out for a lay-off because of the demonstration against her sister. Mrs. Hyde denied this- and told her to telephone the plant about work the following day. Mrs. Fike did so, and was directed to return. She worked from the afternoon of April 27 through April 30. Although Mrs. Fike was returned to work after losing only 1 day's employment we are convinced and find that her lay-off out of turn was because of her connection with the I. L. G. W. U.75 On April 28 or 29, May Fike requested Mrs. Hyde to permit her to take her vacation the first 2 weeks in May. According to Mrs. Fike, Mrs. Hyde told her she might go, but that if she did so, she 92 Lee Baty testified that he did not learn of Mrs Fike's membership in the I. L. G W. U. until 1939 . Under all the circumstances we do not credit that testimony 73 Swift & Co. v National Labor Relations Board, 106 F ( 2d) 87, mod'g and enf'g Matter of Saeaft d Co and Amalgamated Meat Cutte,s and Butcher TPo,kmen of N. A, Local No 641, and Untied Packing House Workers Local Independent Union No. 300 , 7 N. L R B 269. 74 The respondent did not offer any explanation for Mrs Fike 's lay-off out of turn either at the time of the latter 's protest or at the hearing '71 The complaint does not allege that the 1-day lay -off of Mrs Fike was a discrimination with regard to hire and tenure of her employment, and our finding in respect thereto is stated here only in support of our ultimate conclusion that Mrs Fike'sas discriminatorily refused reinstatement and in effect discharged at a later date DONNELLY GARMENT COMPANY 209 ,%wwould• have to take whatever work there was when she returned, since the volume of production at the plant would be reduced by that time. Mrs. Fike testified that with this understanding she went on her vacation. Mrs. Fike's vacation period expired on Monday, May 17. Prior to that date, on May 12, she came down to the plant, and while there inquired of Mrs. Hyde whether there would be work on the following Monday. Mrs. Hyde told her that she did not know and instructed her to call in on Friday, May 14. Mrs. Fike called, and Mrs. Hyde told her that she did not know whether there would be work, but to inquire again on Monday morning, May 17. On Monday, Mrs. Fike was told that there was no work, but to call up later. Thereafter, over a period of several weeks, Mrs. Fike telephoned to Mrs. Hyde a number of times. Each time she was told that there was no work. On the last occasion Mrs. Hyde told Mrs. Fike that she would call her when the respondent needed her. Mrs. Fike has never been called by the respondent during the 2 years intervening between the termi- nation of her employment and the date of the hearing in this proceeding. The respondent defends the termination of Mrs. Fike's employ- ment on the ground that she left voluntarily on April 30, 1937, after being told that if she took her vacation at that time she could con- sider herself discharged. Mr. Baty and Mrs. Hyde both stated that Mrs. Fike was so informed. However, we do not think this testi- mony is consistent with Mrs. Hyde's subsequent conduct. When Mrs. Fike inquired of her about work on May 12, Mrs. Hyde did not men- tion any discharge and told her to call in again. On later occasions, during the several succeeding weeks, when Mrs. Fike telephoned, Mrs. Hyde told her that there was no work but to call again, and finally told her that the respondent would notify her when she was needed. This conduct on the part of Mrs. Hyde indicates to us that Mrs. Fike was not told, as claimed by the respondent, that if she insisted upon taking her vacation she could consider herself dis- charged ; rather, it supports Mrs. Fike's testimony that she was told she would have to -take whatever work there was when she returned. We therefore find that May Fike did not voluntarily leave the employ of the respondent on April 30, 1937, but went on vacation at that time with the understanding that she would be taken back when work was available. It is also contended by the respondent that May Fike was refused reinstatement on May 17 and thereafter because there was no work for her. But the respondent's own employment records and testi- mony show that this is not true. Prior to the time May Fike took her vacation she was engaged in sewing underseam bindings. In her 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD section there were some 14 or 15 operators who devoted all of their time to underseam binding. The employment cards of these 14 operators show that during the week of May 17, which ended on May 21, every one of them worked more than 40 hours-the cus- tomary workweek. Nearly all of the 14 worked 53 hours that week. During the week ending May 28, 11 of the 14 worked overtime and only 2 put in less than 40 hours. Yet, during these 2 weeks, Mrs. Fike was told on several occasions that there was no work . Further- more, the respondent's production manager, Lee Baty, testified that from April 1, 1937, to June 15 or 20, the respondent was unable to meet its production deadlines . Baty also admitted that there was work at the time Mrs. Fike desired to return , but he asserted that there was not enough to justify bringing back operators who had been laid off. Mrs. Hyde testified that the month of May was one of the biggest production months, that on May 12, 1937, the plant was operating at capacity and continued to operate at capacity until the latter part of June. Moreover, even though the slack season was approaching when Mrs. Fike completed her vacation , this is no defense to the respondent's refusal to give her work sometime later when production again increased . Although Mrs. Hyde last said that she would call Mrs. Fike when the respondent needed her, neither Mrs. Hyde nor any other of the respondent's supervisors has done so in the 2 years since May 1937. From these facts we find that May Fike was not denied reinstatement by the respondent because there was no work for her. Finally, . the respondent takes the position that Mrs. Fike has never been reinstated because she was an inefficient operator. Lee Baty testified that he recalled that over a 3-year period a great deal of her work had been returned to her by the respondent's inspectors for repairing and resewing. No records were available to show the amount of repair work, nor did any of the inspectors testify con- cerning Mrs. Fike's work. On the other hand, Mrs. Fike had been employed by the respondent for more than 10 years. It does not seem reasonable to suppose that the respondent would have continued to employ her for so long a period if her work was unsatisfactory. Nor is there evidence that any of the respondent 's supervisory officials ever discussed with Mrs. Fike the character of her work. On the basis of all the evidence we find that May Fike was denied reinstatement and in effect discharged by the respondent after her vacation because of her membership in and activities on behalf of the I. L. G. W. U. We therefore find that the respondent discrimi- nated in regard to the hire and tenure of employment of May Fike, DONNELLY GARMENT COMPANY 211 thereby discouraging membership in the I. L. G. W. U.,76 and inter- fering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Since the termination of her employment at the respondent's fac- tory, Mrs. Fike has worked intermittently at two other garment fac- tories, and had employment at the time she testified in this proceeding. 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 its operations 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 We have found that the respondent has engaged in and is engaging in unfair labor practices by dominating and interfering with the formation and administration of the D. G. W. U. and by contributing support to it; by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act; and by discriminating in regard to the hire and tenure of employment of its employees and the terms and conditions of their employment, thereby discouraging membership in the I. L. G. W. U. and encouraging membership in the D. G. W. U. We shall order the respondent to cease and desist from these unfair labor practices. To effectuate the policies of the Act we shall order the respondent to withdraw recognition from the D. G. W. U. and to disestablish it completely as the representative of any of the respondent's employees for the purpose of collective bargaining. Since we have found that the D. G. W. U. is dominated and assisted by the respondent and that the closed-shop contract granted to the D. G. W. U. by the re- spondent was an integral part of the respondent's campaign to en- courage membership in the D. G. W. U. and to discourage member- ship in the I. L. G. W. U., we shall order the respondent to cease and desist from giving effect to the contract of May 27, 1937, to the supplemental wage agreement of June 22, 1937, to all extensions, renewals, modifications, and supplements thereof, and to anysuper- seding contracts which may now be in operation. However, noth- ing in this Decision and Order shall be taken to require the respondent 16 See Matter of Waterman Steamship Corp . and N. M. U of America, Eng. Div, Mobile Branch, Mobile, Ala , 7 N. L. R B. 237 , 249-50 , enf'd in Waterman Steamship Corp v. Al. L. R B , 309 U. S. 206, rev'g in part and aff'g in part 103 F ( 2d) 157 (C C A. 5). 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to vary or abandon the substantive features embodied in the con- tracts, relating to rates of pay, wages, hours of employment, or other conditions of employment.77 We shall also order the respondent to cease and desist from giving effect to the check-off agreement with the D. G. W. U. and to reimburse its employees for all amounts deducted from wages as dues for the D. G. W. U.78 We have found that the respondent discriminated in regard to the tenure of employment of Sylvia Hull on April 23, 1937, because of her membership in and activities on behalf of the I. L. G. W. U. Upon all the evidence we have also found that Sylvia Hull never communi- cated with the respondent after she left the plant on April 23 and that the respondent made bona fide but unsuccessful efforts to communicate with her to offer her reinstatement. We have found that under all the circumstances the respondent's action was equivalent to an offer of reinstatement which Mrs. Hull, by her failure to communicate with the respondent after instructions to do so, refused to accept. We shall therefore withhold our customary order of reinstatement and we shall not require the respondent to make Mrs. Hull whole for any loss of pay incurred because of the discrimination against her on April 23, 1937. We have found that the respondent discriminatorily discharged May Fike by refusing to permit her to resume her work at the termina- tion of her vacation on May 17, 1937, because of her membership in and activities on behalf of the I. L. G. W. U. We shall, therefore, order the respondent to offer to May Fike full and immediate rein- statement to her former or substantially equivalent position. We shall also order the respondent to make whole May Fike for any loss of pay she may have suffered by reason of the discriminatory failure to rein- state her, by payment to her of a sum equal to the amount which she normally would have earned as wages from May 17, 1937, the date of that discrimination '79 to the date of the respondent's offer of reinstate- ment, less net earnings 80 during said period, excluding from the com- putation of her back pay, the period from the date of service of the Intermediate Report to the date of the Order herein, since the Trial "Matter of Monticello Manufacturing Corporation and Steel J17otke?s Organizing Com- mittee, No. $087, affiliated with the C 1 O , 17 N L R B 1091. 98 Matter of The Heller Brothers Company of Newcomerstown and International Brother- hood of Blacksmiths, Drop Forqers and Helpers, 7 N L. It B 646, 656 "We have chosen May 17, 1937, since that is the date on which Mrs . Pike's vacation period terminated and she normally would have ietuined to work. It is true that the record does not affirmatively establish that there was work for her on that day, but in view of the testimony that the respondent's plant was operating at capacity from May 12, 1937, to the latter part of June 1937, we find that the respondent could have given Mrs Pike employment on May 17, 1937, and that her award of back pay should be computed from that date 80 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 Roiking else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and, Joiners of Amer- DONNELLY GARMENT COMPANY 213 Examiner found she was not discriminatorily discharged and recom- mended dismissal of the complaint with respect to her.sl Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Ladies' Garment Workers' Union and Donnelly Garment Workers Union are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of Donnelly Garment Workers Union, and contributing sup- port to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to hire and tenure and terms and conditions of employment of its employees, thereby encouraging mem- bership in the Donnelly Garment Workers Union and discouraging membership in the International Ladies' Garment Workers' Union, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 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 Donnelly Garment Company, Kansas City, Missouri, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from : (a) Dominating or interfering with the administration of Donnelly Garment Workers Union, or with the formation and administration of any other labor organization of its employees, and from contribut- ica, Lumber and Sawmill Workers, Local 2590, 8 N L. R' B 440. Monies iecelved for work peiformed 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 govermntnts which supplied the funds for said work-relief pi bjects 81 This is in accord with our usual practice See Matter of The Louisville Refining Co. and Int. A'ss'n. of Oil Field, - leas -Well and Refinery Workers of America, 4 N. L. R B. 844, 875. 283032-41-vol 21- 15 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing financial or other support to said union or to any other labor organization of its employees; (b) Giving effect to its contract of May 27, 1937, and its supple- mental wage agreement of June 22, 1937, or to any extensions , renew- als, modifications, or supplements thereof or to any superseding con- tract and agreement which may now be in force with Donnelly Gar- ment Workers Union; and from giving effect to its check-off agreement with the Donnelly Garment Workers Union; (c) Discouraging membership in International Ladies' Garment Workers' Union, or discouraging or encouraging membership in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or by discriminating in any other manner in regard to hire or tenure of employment, or any term or condition of employment; (d) Dominating, controlling, and using the Donnelly Loyalty League to interfere with, restrain, and coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose 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) Withdraw all recognition from and completely disestablish Donnelly Garment Workers Union as the representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (b) Reimburse all employees who were members of the Donnelly Garment Workers Union for the dues it has deducted from their wages on behalf of said union; (c) Offer to May Fike immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority and other rights and privileges; (d) Make whole May Fike for any loss of pay she has suffered by reason of her discharge, by payment to her of a sum of money equal to that which she normally would have earned as wages during the period from May 17, 1937, to the date of such offer of reinstatement, less her net earnings during that period , but excluding from the computation of the amount due her the period from October 9, 1939, the date of service of the Intermediate Report, to the date of this DONNELLY GARMENT COMPANY 215 Order; deducting from the amount otherwise due her monies earned by her during the period included within the computation for work performed upon Federal, State, county, municipal, or other work- relief projects and pay over the -amount so deducted to the appro- priate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects ; (e) Post immediately and keep posted for at least sixty (60) consecutive days from the date of posting, in conspicuous places throughout the plant, notices stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a), (b), (c), (d), and (e), and will take the affirmative action set forth in para- graphs 2 (a), (b), (c), and (d) of this Order; and further stating that the respondent's employees are free to become or remain members of International Ladies' Garment Workers' Union, and that the re- spondent will not discriminate against any employee because of membership in or activity on behalf of that organization; (f) Notify the Regional Director for the Seventeenth Region in writing within fifteen (15) days from the date of this Order what steps the respondent has taken to comply herewith.