Peter Pan Co., Inc.

In the Matter Of PETER PAN COMPANY, INC., WINCHESTER, KENTUCKY and UNITED GARMENT WORKERS OF AMERICA, 206 TYLER BUILDING, LOUISVILLE, KENTUCKY In the Matter Of PETER PAN COMPANY OF WINCHESTER, INC., WIN- CHESTER, KENTUCKY, AND EDWARD GREENFIELD AND MAURICE K GREENFIELD, PARTNERS, DOING BUSINESS AS M. E. GREENFIELD CO., WINCHESTER, KENTUCKY and AMALGAMATED CLOTHING WORKERS OF AMERICA (C. I. 0.) P. O. Box 186, LEXINGTON, KENTUCKY Cases Nos. C-1139 and C-1317, respectively.Decided March 11, 1940 Boys Clothing Manufacturing Industry-Interference, Restraint, and Coercion: expressed opposition to "outside" labor organizations; threat to move plant; suggestion by employer that company union be formed ; signing of contract providing that employees would not join or assist any union but would use best efforts and influence to prevent organization of union-Company- Domznated Union: domination of and interference with formation and adminis- tration ; letter from employer suggesting formation of company union ; organi- zation activity in plant during working hours ; solicitation of members by supervisory employees ; disestablished as agency for collective bargaining- Contract: with company-dominated union, invalid ; employer ordered to cease giving effect to-Discrimination: discharges for union membership and activity; closed-shop contract with company-dominated union, no defense to ; refusal to reinstate, for giving testimony at previous hearing ; charges of, in lay-offs, dismissed-Reinstatement Ordered-Back Pay: awarded ; period one employee could not have worked because of illness not included. Mary Telker Miff, for the Board. Mr. B. R. Jouett and Mr. J. A. Logan, of Winchester, Ky., for the respondent. Mr. J. T. Woodward, of Louisville, Ky., Mr. T. N. Taylor, of Terre Haute, Ind., and Miss Peggy Flanagan, of Lexington, Ky., for the United. Mr. Julius Holzberg,,of Cincinnati, Ohio, for the Amalgamated. Mr. D. L. Pendleton, of Winchester, Ky., for the Association. Miss Marcia Hertzmark, of counsel to the Board. 21 N. L. R. B., No. 49. 522 PETER PAN COMPANY, INC. DECISION AND ORDER 523 STATEMENT OF THE CASE Upon charges duly filed by United Garment Workers of America, herein called the United, the National Labor Relations Board, herein called the Board, by the Regional Director for the Ninth Region (Cincinnati, Ohio), issued its complaint dated October 3, 1938, against Peter Pan Company, Inc.,, Winchester, Kentucky, herein called the respondent corporation, alleging that the respondent corporation had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint and notice of hearing were duly served upon- the respondent corporation and upon the United. The complaint alleged in substance that on or about July 7, 1937, the respondent corporation threatened, induced, and coerced its em- ployees into signing a contract, with the design and purpose of inter- fering with, restraining, and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act; that the respond- ent corporation discouraged its employees from becoming members of a union by employing spies to watch union meetings, by threatening to close down the plant if its employees joined a labor organization, and by threatening to discharge its employees if they joined an independent labor organization. The respondent corporation thereafter filed its answer, dated November 8, 1938, denying the commission of the unfair labor prac- tices alleged in the complaint. Pursuant to notice, a hearing was held at Winchester, Kentucky, on November 17, 1938, before Charles E. Persons, the Trial Examiner duly designated by the Board. The Board and the respondent cor- poration were represented by counsel and the United by two of its organizers. Counsel for the Board and for the respondent corpora- tion participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the commence- ment of the hearing and at the conclusion of the Board's case the respondent corporation moved for dismissal of the complaint. The Trial Examiner denied the motions. During the course of the hear- ing the Trial Examiner made other rulings on motions and on objec- 1 The correct name of the respondent corporation is Peter Pan Company of Winchester, as appears from its exceptions to the Intermediate Report 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions 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 conclu- sion of the hearing the respondent corporation renewed its motion to dismiss the complaint. The motion was taken under advisement by the Trial Examiner. The respondent corporation subsequently filed a brief, dated November 23, 1938, in support of its motion to dismiss the complaint. The Trial Examiner thereafter filed an Intermediate Report, dated January 19, 1939, copies of which were served on the respondent cor- poration and the United, denying the motion to dismiss the complaint, finding that the respondent corporation had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and Section 2 (6) and (7) of the Act, and recommending that it cease and desist from its unfair labor practices, and cease enforcing or attempting to enforce the contract dated July 7, 1937. The respondent corporation thereafter filed exceptions to the In- termediate Report of the Trial Examiner and also filed a brief in support thereof. Pursuant to request granted by the Board, the United filed a brief and the respondent corporation filed a second brief. Thereafter charges and amended charges were filed by Amalgam- ated Clothing Workers of America, herein called the Amalgamated, against the respondent corporation and against Edward Greenfield and Maurice E. Greenfield partners, doing business as M. E. Green- field Co., Winchester, Kentucky, herein collectively called the respondents. On April 14, 1939, acting pursuant to Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations-Series 1, as amended, the Board issued an order reopening the record in the first proceeding for the purpose of conducting a further hearing, and consolidating the two proceedings herein for all purposes. On May 12, 1939, the Board, by the Regional Director, issued its complaint against the respondents alleging that the respondents had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), (3), and (4) and Section 2 (6) and (7) of the Act. Copies of the complaint and accompanying notice of hearing were duly served upon the respond- ents, upon the Amalgamated, upon the United, and upon Peter Pan Employees Association, herein called the Association, a labor organi- zation claiming to represent employees of the respondents. With respect to the unfair labor practices, the complaint alleged, in sub- stance, (1) that the respondents, by their officers and agents, on or about February 3, 1939, formed the Association, gave financial and PETER PAN COMPANY, INC. 525 other aid and support to it, and thereafter dominated and interfered with its administration; (2) that the respondents, on or about March 17, 1939, terminated the employment of Mattie Fryman, Martha Ref- fett, Alice Mabe, Mary King, Edna Brinegar, Catherine Crim, Eliza- beth Crim, and Iva Evans, and at all times since such termination failed and refused to reinstate said employees, for the reason that said employees joined and assisted the Amalgamated and refused to join the Association; (3) that the respondents terminated the em- ployment of Dorothy Hall on or about February 3, 1939, and, failed and refused to reinstate her, for the reason that she joined and as- sisted the Amalgamated; (4) that the respondents terminated the employment of Maggie Hall, on or about November 2, 1938, for the reason that she assisted and gave evidence to agents of the Board in connection with charges against the respondent corporation in the prior proceeding, and failed and refused to reinstate said Maggie Hall for the further reason that she gave testimony under the Act at a hearing on November 17, 1938; (5) that the respondents threat- ened, induced, and coerced their employees into signing a contract with the design and purpose of interfering with, restraining, and coercing their employees in the exercise of their rights guaranteed in Section 7 of the Act; and (6) that by various other means and meth- ods the respondents discouraged their employees from becoming mem- bers of a labor organization and coerced and intimidated their employees in the exercise of their rights under the Act. The respondents thereafter filed a motion to make the complaint more definite, and an answer denying the unfair labor practices alleged in the complaint, and requesting that the complaint be dis- missed. Parsuant to notice, a hearing was held at Winchester, Kentucky, on May 22 and 23, 1939, before Berdon M. Bell, the Trial Examiner duly designated by the Board. The Board, the respondents, the Amalgamated, and the Association were represented by counsel and participated in the hearing. A representative of the United was present but did not participate. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues was afforded all parties. Upon the opening of the hearing, the respondents again moved to dismiss the earlier proceed- ing. The Trial Examiner denied the motion. The Trial Examiner also denied the respondents' motion to make the complaint more definite and certain. The Association tendered a motion and petition to intervene which were granted by the Trial Examiner subject to the restriction that participation by the Association be limited to matters affecting it. During the course of the hearing the Trial Ex- aminer made other rulings on motions and on objections to the ad- 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mission 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. - The respondents subsequently filed a brief which has been con- sidered by the Board. On June 27, 1939, the Board issued an order vacating and setting aside the Intermediate Report in the first proceeding, transferring the consolidated case to the Board, directing that no Intermediate Report be issued in the further hearing, directing the issuance of proposed findings of fact, proposed conclusions of law, and proposed order, and granting the right to file exceptions, request oral argu- ment, and permission to file briefs. Copies of this order were duly served upon all parties. An order permitting correction of certain errors in the transcript was entered by the Board on August 2, 1939, after a stipulation to that effect had been signed by all parties on June 23, 1939. Copies were duly served on all parties. On December 12, 1939, the Board issued Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order in these proceedings, copies of which were duly served upon all parties. On December 26 the Board informed all parties that they were granted 20 days from the issuance of the Proposed Findings, Proposed Con- clusions of Law, and Proposed Order within which to file exceptions and to request oral argument and permission to file briefs. Exceptions to the Proposed Findings of Fact, Proposed Conclu- sions of Law, and Proposed Order were filed by the respondents and by the Association. The respondents, the Association, and the United filed briefs with the Board. Pursuant to notice, a hearing was held before the Board in Wash- ington, D. C., on February 20, 1940, for the purpose of oral argu- ment. The respondents, the Association, the United, and the Amalgamated were represented by counsel. The Board has considered the exceptions to the Proposed Find- ings of Fact, Proposed Conclusions of Law, and Proposed Order, and the briefs and oral argument in support thereof, and in so far as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds no merit in them. In order to distinguish, when necessary, between the two pro- ceedings which have been consolidated herein, we shall hereafter refer to the proceeding in which charges were filed by the United as Case No. C-1139; and to the proceeding in which charges were filed by the Amalgmated as Case No. C-1317. Upon the entire record in the case, the Board makes the following : PETER PAN COMPANY, INC. FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS 527 Peter Pan Company of Winchester, Inc., was incorporated in Kentucky in 1935 and has its principal office and place of business in Winchester, in that State. All stock in the Peter Pan Company of Winchester, Inc., is owned by Edward Greenfield and Maurice E. Greenfield, partners, doing business as M. E. Greenfield Co., and members of their families. The two companies compose an in- tegrated unit engaged in the manufacture, sale, and distribution of boys' clothing. Materials used in the manufacturing process are bought by Edward Greenfield and Maurice E. Greenfield, partners, doing business as M. E. Greenfield Co., and are delivered to them at the Winchester plant. The materials are then turned over to Peter Pan Company of Winchester, Inc., to manufacture into finished prod- ucts. Expenses of the Peter Pan Company are paid by the partner- ship and when the finished products are completed by the corpora- tion, they are delivered to the partnership which sells and distributes them. The principal raw materials used by the respondents are cot- ton and woolen piece goods, of which approximately 90 per cent were purchased outside the State of Kentucky during the period from May 1, 1938, to May 1, 1939. During the same period about 90 per cent of the finished products sold by the respondents were shipped to States other than Kentucky. The respondents employ approximately 200 employees. II. THE ORGANIZATIONS INVOLVED United Garment Workers of America is a labor organization affiliated with the American Federation of Labor, which admits to membership the production workers of the respondent. Amalgamated Clothing Workers of America is a labor organization affiliated with the Congress of Industrial Organizations, which admits to membership the production workers of the respondents.2 III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion in Case No. C-1139 In late June or early July 1937, the Amalgamated sponsored a meet- ing in the Courthouse at Winchester which was attended by 50 to 75 of the respondents' employees. Luda Porter, the respondents' book- 2 It is clear from the record that production workers of the respondents are eligible to membership in both the United and the Amalgamated However, it does not appear whether any other employees are eligible, nor is it shown what employees are excluded from membership by the unions. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD keeper and pay-roll clerk, was sitting in an automobile in front of the courthouse prior to the meeting observing the employees who attended, but she did not attend the meeting. The next morning Edward Greenfield, president of the respondent corporation, called into his office about 20 of the girls who had attended the meeting, told them he knew of their action, asked why they went to the meeting, and informed them that he -had moved from New York to get away from unions. He threatened to close the plant and move from Winchester before he would work "under a union." Greenfield then advised "that the girls . . . get together and form a company union, or something like that, to be in harmony." On another occasion Greenfield told Elmer Evans, an employee, "if we joined the Union he would probably have to quit business," and also told Evans that he had left New York on account of the union and suggested "that we form sort of a company union among our- selves." Greenfield made similar statements to other employees. During the week following the meeting of the Amalgamated, a slip of paper, bearing the names of three employees, was circulated in the department known as Berman's floor, and a similar slip was circulated on Fox's floor. There is no showing as to how the persons whose names appeared on the slips were chosen, but Gertrude Lowry, Mrs. Snapp, and Elmer Evans, from Berman's floor, and Mary King, Dixie Tipton, and Rachel McQueen, from Fox's floor, were named as a com- mittee to represent the employees. Gertrude Lowry testified that after the Amalgamated meeting several of the girls had discussed the question of unions and had come to the conclusion that it "wouldn't be the proper thing for them to do, to organize a union at this time, and if they could, in some other way, have an agreement with Mr. Green- field of just what they would like to have, not longer than 9 hours a day, 5 days a week, if he would agree to these things, that the employees would undertake to use any influence they could to prevent a union being organized at this time." Evans and Mary King testified that there was some discussion among the members of the committee and the employees as to a contract, but both stated that they took no part in drawing such a contract, and both disclaimed knowledge as to the origin of the idea. Lowry prepared in ink a memorandum which, according to her testimony, provided in substance, among other things, "We, the employees of the Peter Pan Company, if you sign this agreement, we agree not to join a union or participate in one, ... if you will agree to the following statements and points." This memorandum was passed around to the girls in Berman's and Fox's divisions, and, according to the testimony of Lowry, after the girls had expressed their approval she and the other members of the committee from Ber- man's division then took it to Greenfield who told her to leave it with PETER PAN COMPANY, INC. 529 him, after reading it and stating, "There is nothing I see amiss." Mary King and Dixie Tipton testified that on one occasion thereafter, when the committee talked to Greenfield about the proposed contract, he told them they "would sign the contract and like it." The exact time of this remark is not shown; but it is not denied and we find that Greenfield made it. Greenfield testified that he sent to his attorney, Jouett, the draft drawn by Lowry and that from the suggestions contained therein Jouett drew a contract which contained substantially the same pro- visions as the draft, except that they were in more formal terms. The contract as drawn by Jouett reads as follows : To the Peter Pan Company of Winchester : The undersigned employees of the Peter Pan Company of Winchester agree that they will not join any union or assist in the organization of any union in this plant, but will use their best efforts and influence to prevent the organization of a C. I. 0. Union or any union if the Peter Pan Company of Winchester will agree to put into effect and continue same, when the plant is in operation, for the period of two years from this date, the following requests : 1. The work shall be nine hours per day, with no work on Saturday. 2. A 121/2% increase in all salaries, wages or earnings that do not average $12.00 per week based on a 45-hour week. 3. More satisfactory changes in working conditions in the fac- tory as soon as same can reasonably and conveniently be made. 4. Payment of all salaries, wages and earnings each week. 5. No cut or decrease in the wages, salaries or earnings of any employee below the present scale of prices. Witness our signatures this July 7, 1937. Greenfield testified that somebody on the committee suggested to him that the Chamber of Commerce of Winchester, which as agent for the townspeople was paying the respondent corporation $1,000 a year to maintain its factory and a $75,000 yearly pay roll in Win- chester, be called into the matter. Apparently in compliance with this suggestion, Jouett called in T. Stanley Clay, city attorney of Winchester, Judge Joe S. Lindsay, and Mayor Scobee. Clay testi- fied he was shown the proposed contract by Jouett and that : Mr. Jouett stated that a C. I. 0. organizer was in Winchester, and that the employees of the Peter Pan Company were some- what agitating, and that this organizer was probably trying to form a union, and that it might be possible to settle the differ- ences between the Peter Pan management and their employees 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without a labor organization. I think that was about all there was at stake at that time. Thereafter, on July 7, 1937, Clay, Judge Lindsay, Mayor Scobee, and J. Smith Hayes, county attorney, went to the respondents' plant. Hayes testified that Judge Lindsay told him : that there had been some labor disagreement, that it had all been settled in an amicable manner, and that the statement was satisfactory not only to the employees, but to the management as well, and requesting me to join him and Mayor Scobee and Mr. Clay, to go there about the contract. The officials, upon arriving at the plant, were met by Eddie Stern, who was in charge of the shipping department, and were taken to an office where the committee was assembled. The contract was read and discussed. Hayes recalled that immediately following the read- ing of the contract a dispute developed between the two groups in the committee, one representing the Berman division and the other the Fox division; that the Berman group said the contract was what they had agreed on, and the Fox committee said they had never been consulted about the contract, knew nothing about it, and that it did not correctly state their demands. Hayes stated : My recollection is that Mrs. King raised several objections, and said that did not cover the situation exactly. It was quite evident there was considerable discord. About that time, Mr. Greenfield came in and shook hands with us, and he said this contract represented the management, the management was wanting to concede some of the points that the employees there wanted, and that he was perfectly willing on behalf of the management that this contract be entered into, and-said it was satisfactory to him, and suggested that he stop the plant and call all the workers together. Judge Lindsay, in stating his version of the meeting with the committee, testified that when the contract was submitted to the committee and they were asked if it was their demand, it developed that there was discord in the ranks. Someone suggested calling in Greenfield who came into the meeting and agreed to meet the de- mands contained in the contract. Greenfield then said that he did not favor a union and that "he would close the plant before he would run under a union; that he just couldn't afford to." Green- field's suggestion was then carried out; the power was turned off and all the employees called to a meeting. Clay read the proposed contract to them and called for a discussion of its merits. The dis- cussion which followed included questions by employees and answers by Clay, who testified that there was a division of opinion among PETER PAN COMPANY, INC. 531 the employees of the plant. It is not denied that Greenfield, Berman, Fox, and other supervisory employees were present during the read- ing of the proposal and the subsequent discussion thereof, and that they mingled among the employees. It is clear from the testimony of Clay, Hayes, and Judge Lindsay noted above that the contract as presented to Greenfield did not represent the desires of many of the employees. Thereafter, the meeting was adjourned and after the employees had gone back to work the contract was passed down the lines of workers and a majority signed their names to it. Only one girl from Fox's division signed the contract at that time. However, a number of those who had not signed were later told they were wanted in the basement and, upon appearing there, found that Fox and Eddie Stern, who was in charge of the shipping department, were present and had the contract. Stern requested these employees to sign. Sue Butler, who was absent on the day the contract was first presented for signature, was approached upon her return by either Stern or Mrs. Evans, a floorlady, and was requested to sign the contract, which she did. Mrs. Agatha Stokley signed the contract "because I felt like probably it would be hard on me if I didn't." The contract was then presented to Greenfield who signed it. Employees who refused to sign the contract were not discharged. The provision as to a wage increase of 121/2 per cent was applied to all employees who were not making $12 a week prior to the contract,-' except handicapped workers and learners. Employees who were hired after July 7, 1937, were not solicited to sign the contract. Union activity in the respondents' plant apparently ceased after the execution of the contract until March 1938 when an organizer for the United appeared in Winchester. Mrs. Agatha Stokley re- ceived from him some union application cards upon which she pro- cured the signatures of a number of employees. Greenfield called her into his office, told her it had been reported to him that she was getting union cards signed, and asked her why she was doing this. Mrs. Stokley replied that the employees had become dissatisfied because of the respondents' failure to pay the 121/.,-per cent increase provided by the contract, whereupon Greenfield accused her of bringing the union organizer to Winchester, which Mrs. Stokley denied. Greenfield then instructed Mrs. Stokley to "get in touch with these girls, and tell them he wouldn't work under a union, that he would close his plant down before he would work under a union." Thereafter, Berman, the foreman in the department in which Mrs. Stokley worked, told her that he had learned that she was getting the union cards signed and that Greenfield would not have her in his plant if he found out about her actions. When Mrs. Stokley replied that she had not told Greenfield that she was getting 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards signed, Berman stated that someone else had told him: Stokley went to Greenfield's office and he told her "he didn't want me or anyone else in that plant who was in favor of the union." Mrs. Stokley thereupon quit her job. On another occasion, Berman told Mrs. Lula E. Chester, who had signed a union card, that she should not have done so without asking his permission. He advised her to try to get her card back "or neither one of us would have a job when they changed the season." As to the respondent corporation's allegation that it indulged in no coercion of its employees, suffice it to say that there is scarcely a more efficacious method by which an employer can restrain or coerce his employees than by threatening to close or move the plant, in the continued operation of which lies the livelihood of such em- ployees, unless they abandon their organizational activities. We have found above that Greenfield made such threats on numerous occasions; that he told an employee to inform others of his antipathy to unions and his refusal to "work under" a union; that Berman, a foreman for whose acts and statements in this connection the re- spondents are responsible, told one employee that Greenfield would not have her in his plant if he found out she was obtaining signa- tures to union cards; that he told another employee that she should not have signed a union card without seeking his permission, and foretold that neither of them would have a job if she did not retrieve the card. The coercion practiced by the respondent corporation through these statements is manifest. The respondent corporation contends, in answer to the charges of unfair labor practices alleged in Case No. C-1139, (1) that the United had no right or authority to file a charge in this case since no showing is made that any employee of the respondent corporation is a member thereof, and since no employee joined in filing the charge; (2) that the contract of July 7, 1937, is a valid and legal obligation binding upon the parties and entered into at the request of the employees of the respondent corporation ; (3) that no inter- ference, restraint, or coercion has been established and that the re- spondent corporation has not engaged in unfair labor practices which would justify the issuance of an order to cease and desist against it. We find no merit in the contentions of the respondent corporation. Section 10 (b) of the Act reads, in part, as follows: Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, ... shall have power to issue . . . a complaint stating the charges in that respect, . . . PETER PAN COMPANY, INC. 533 There is no requirement in the Act that a labor organization filing a charge represent a given number of, or any, employees or that employees must join in the charge. Obviously, the more flagrant the intimidation and coercion practiced by an employer, the less is the,opportunity for securing members among employees. We come now to consider the contract of July 7, 1937. The re- spondent corporation, insists that it has not engaged in an unfair labor practice in entering into the agreement, that no coercion has been shown in securing its execution by the employees and, in fact, that the contract was drawn and presented by the employees as a demand upon the respondent corporation to which it has acceded. We have discussed above the anti-union statements of Greenfield and Berman and the former's suggestion to employees that they form a company union. In view of this manifestation to employees of Greenfield's attitude and desires with respect to union organiza- tion, it is not surprising to find certain employees initiating or aiding a movement to organize an inside union as suggested by the re- spondent corporation and undertaking to prevent the growth of a legitimate labor organization. That the contract of July 7 did not express the wishes of many of the employees is clear from the testi- mony of the city and county officials of Winchester which we have heretofore quoted. That it suited the respondent corporation is equally clear from the record. Greenfield's expression during the conference prior to the adoption of the contract-"this contract rep- resented the management"-leaves no doubt as to the wishes of the employer. Nor can there be more than one interpretation of Green- field's statement to the members of the committee that they "would sign the contract and like it." The actual signing of the contract, rather than being a spontaneous and voluntary act of the employees was secured in many instances only after individual requests to em- ployees by supervisory employees. We find that the contract of July 7, 1937, was entered into as a result of the unfair labor practices of the respondent corporation. The execution of the contract was in pursuance of the respondent corporation's policy of discouraging union activity and was a part of its plan to eliminate the Union from the plant and perpetuate the illegal course of conduct by which it interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them under Section 7 of the Act. . In addition, the terms of the contract require special attention: We considered, in Matter of Hopwood Retinning Company, Inc.,3 3 Matte, of Hopwood Retinninq Company , Inc and Monarch Retinning Company, Inc and Metal Polishers, Buyers, Platers and Helpers International Union , Local No 8, and Team- -ters Union, Local No. 581, 4 N. L. R. B 922 283032-41-vol. 21-35 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in a 'decision affirmed as to this point by the United States Circuit Court of Appeals for the, Second Circuit,4 a contract providing, in part : any Employee has a right to join any union of his own choosing, or to refrain from joining any union. Furthermore, no Iem- ployee or persons working for the Employer shall be obliged or required to join any union. The Employees, or any of them, shall not and have not the right to demand a closed shop or recognition by the Employer of any union, and the Employer has the absolute and unqualified right to hire or discharge any Employee or Employees for any reason or for no reason _ and regardless of his or their affiliation or non-affiliation with any union . . . all of the parties understand and agree that the propositions and questions of a closed shop and the recognition of a union are not and shall at no time be matters subject to or to be submitted to arbitration. We found the execution of the contract above quoted to be in violation of the Act and quoted from an earlier case in which a similar contract was discussed as follows : .The contract deprives each employee who signs it of the right to strike until November 1, 1940, of the right to demand recog- nition of any union by the employer, and of the right to ques- tion discharges for any reason or no reason regardless of his affiliation or nonaffiliation with any union. Despite the lip- service rendered by the terms of the contract to the right of any employee to join any union of his own choosing, the agree- ment deprives each employee subscriber of the fundamental rights inherent in union affiliation and activity-the right to union recognition, which means the right to collective bargain- ing, the right to concerted activities for mutual aid or protec- tion, which is guaranteed to employees in Section 7 of the Na- tional Labor Relations Act, and the right to protest against the employer's exercise of his most powerful anti-union weapon, discharge for union affiliation or activity. It would be hard to devise a more patently anti-union or "yellow dog" contract, or one more discouraging to membership in a labor organization. 4N. L. R B . v. Hopwood Retinn,mg Company, Inc , and Monarch Retinning Company, Inc, 98 F. (2d) 97. "Matter of Atlas Bag and Burlap Company, Inc. and Milton Rosenberg, organi zer, Bur- lap and Cotton Bag Workers Local Union No. 2469, affiliated with United Textile Workers Union, 1 N L R. B. 292. PETER PAN COMPANY, INC. 535 The contract in the instant case presents an even more flagrant violation of the Act. It does not attempt to do lip-service to the right of employees to join a union. The employees agree not only that they wilh not join or assist any union for 2 years, but also that they will 'use their best efforts and influence to prevent the organiza- tion of any union. * The Act gives employees the right to form, join, or assist labor organizations and the contract in question restrains employees in the exercise of that right. We hold that the respondent corporation's execution of the con- tract of July 7, 1937, apart from any other unfair labor practices engaged in in connection with the contract, constituted interference, restraint, and coercion of its employees in the exercise of their rights guaranteed by the Act. B. The unfair labor practices in Case No. C-1317 1. The Peter Pan Employees Association In January 1939 the Amalgamated began a campaign for mem- bership among employees of the respondents and distributed by mail letters urging employees to join. Soon thereafter Berman told Edna Brinegar, an employee, that the Union was making promises it could not fulfill, that it cared only for the money it could get, and that he (Berman) was "sick and tired of the whole thing and wasn't going to put up with it any longer." Edna Sutherland testi- fied' that Lewis, who is in charge of the cutting department, referred to her as being a worker for the C. I. O. and "that he was warn- ing me that after this all died down they were going to get rid of the ones that were working for the Union . . ." Stanley Powell also testified that some time during February she heard Berman tell another girl, "Yes, I know every one of them and they are going out of here because I won't work a girl that is for the C. I. 0." These statements are not denied and we find that they were made. On-January 20 the respondent handed out in the plant printed copies of a letter reading as follows : JANUARY 20, 1939. To the Employees of the Peter Pare Company, Winchester, Kentucky: Some of-our employees have asked me about the prospect of or- ganizing a labor organization among the employees in this plant or joining an union, and that I may not be misunderstood, or what I have said intentionally or unintentionally misquoted or misrepresented, I am presenting this statement to you that all may understand this Company's position and attitude. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We understand that an effort is being made by representatives of the Amalgamated Clothing Workers of America to organize an Union in this factory, and are, soliciting you to join that or- ganization. The circular which has been sent you is signed "The Union Organizing Committee in the Peter Pan Plant." We do not know who are the members of this committee, but if there is such a duly and legally appointed committee, representatives of that Union are entitled to, and have the right to publicly or pri- vately present to you their claims, and if the Agreement of July 7, 1937, which you proposed and drafted and which many of you have executed, is not valid or binding upon you, legally or morally, you have the right to exercise your choice of joining or not. You also have the right of self-organization, that is to form your own organization and to select your own representatives for collective bargaining. This right has never been denied you, nor the right to present to us your claims or complaints and discuss and advise with us concerning your problems, nor will this privi- lege ever be denied you. We welcome and covet such approaches, for your problems are generally our problems. We have satisfactorily and harmoniously worked together, here in Winchester, for many years, through both hard times and good times without an Union Organization and have had no strikes or labor disturbances or frictions, and you have been free at all times to come to us, on our time, with your grievances and we have at all times tried to treat you fairly and such policy will be continued in the future as in the past. This being so we are wondering what any of you expect to re- ceive from any Union that you could not receive from us, there- fore we feel we have the right to suggest that before you decide this matter you ask yourselves these questions : How will I be benefited? What will I receive in return for my membership in the Union? Will a labor organization in this factory be bene- ficial to the employees? Will it cause labor disturbances and frictions? Am I legally or morally obligated under my Agree- ment of July 7, 1937? If your answer to these questions satisfies you that you or a majority of the employees of this factory would be benefited by such an organization, over and above that which you are receiving or can receive without such organization, and that you are not obligated legally or morally to abide by the terms of your Agreement above mentioned, then, you would, from your viewpoint, be justified in joining an Union or forming your own among the employees; but if on the other hand you doubt the wisdom of such a course or feel that a self-organization among yourselves would be better, then you should decide accordingly. PETER PAN COMPANY, -INC. 537 - But understand, that, we would not, nor has an official or em- ployee of this- company the right to, prevent or attempt to pre- vent you by coercion, intimidation or otherwise, from joining an Union or organizing one of your own, if you feel it is proper, under present conditions, and for the best interest of the employees to do so; and if you do so feel and act accord- ingly you may rest assured that no employee of this company, union member or non-union' member, will be discriminated against or favored as to hire or tenure of employment or any term or condition of employment, and we will continue to oper- ate the plant so long as conditions may justify its operation and our personal and genuine interest in your welfare will continue as in the past. Yours very truly, PETER PAN COMPANY OF WINCHESTER, By EDWARD GREENFIELD, President. Several days later Powell heard Bertha Straughan, an employee, tell Berman, "We have got to do something about it to keep the other out." Berman replied, "What can I do about it?" When Straughan and Berman separated, the former approached three of the machine girls, Leora Johnson, Della Harris, and Allie Denni- son, spoke to them, and then left the plant with them although they were all supposed to be working. On February 2 Brinegar held a meeting of the Amalgamated in her home and on the following day Berman told her she had stirred up trouble enough, he was going to put a stop to it, she was dis- turbing the peace and he was going to call the police and have her put out. No legitimate occasion for such an outburst on the part of Berman is shown to have occurred and it is clear that he was referring to the meeting of the previous evening. That morning the four girls who had left the plant during work- ing hours several days before, again went out during working hours, returning to the plant during the noon hour. Upon their return Straughan called together the girls who worked in Fox's division, stood on a chair and began to make a speech. Eddie Stern, in charge of the shipping department, attempted to stop her but, according to her testimony, she said, "Stop, Eddie" and Stern made no fur- ther attempt to stop her. Straughan announced that if anyone cared to talk for the C. I. O. they should do it at that time. No one re- sponded and she proceeded to speak. She stated, among other things, that "they decided that if they were going to join a union they would join one of their own, a company union, that they didn't think any girl in the plant would want to have anything to do with such a radical, communistic thing as the C. I. 0." Fox, Lewis, and 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stern were present and listened to the talk. After Straughan fin- ished talking, Lewis told Jessie Pitts the company union " is just the ,thing the girls need, what they have needed for a long time." He then informed her that Greenfield had plenty of money and would "fight it (the C. I. 0.) to the limit, that he would move out of town or. he would cut the material there and send it out to contractor's shop." When Straughan had finished her talk on Fox's side, Berman motioned to her to come to his division and, in his presence, she repeated in substance the remarks she had made before. At 1 o'clock, when- the power was turned on, Stern said, "Hey, cut that off." The girls advised him it was time to go to work, but Stern replied, "What does it matter, it is on our time." The power was turned on at about 1: 30 and the girls went back to. work. During the next hour a paper was passed around in the plant and those in favor of a company union were asked to sign; 127 employees signed. Al, Straughan's suggestion, a committee was selected to make plans for the company union. That day, and on two other occasions, Bertha Straughan told employees that the com- pany, union was organized to keep the C. I. O. out of the,plant. The Amalgamated held its first open meeting in Winchester on February 6, 1939, at the courthouse. Mrs. Evans, in charge of the blouse department, Luda Porter, and Bertha Straughan were present and, after the union organizer had spoken, Straughan announced a meeting on the following Wednesday for "the side that I am on." On the same day the letter dated January 20, previously distributed in the plant, was embodied in an advertisement by the respondents which appeared in a Winchester newspaper. On February 8 the meeting for the company union was held as sched- uled. It featured a speech by Reverend Edison J. Taylor who char- acterized "Mr. C. I. 0." as radical, communistic, and a liar. On he following day Taylor visited the plant, making a tour of inspec- tion in the company of Eddie Stern who was in charge of the shipping department. On February 13 another meeting of those in favor of a company union was held in the City Hall and Taylor again spoke. He was followed by D. L. Pendleton, an attorney, who had been employed by members of the committee to draw articles of incorporation for the Association. Pendleton read the articles and announced that those who did not care to join were not re- quired to do so and that they would not lose their jobs. An execu- tive board, consisting of Straughan and four others, was then elected, and 80 employees signed the articles of incorporation. Lewis, Mrs. Evans, and Luda Porter were present at this meeting. When Edna PETER PAN COMPANY, INC. 539 Brinegar did-not sign the articles of incorporation that evening, Lewis urged her to do so. • 'Following this meeting of the Association, a campaign for mem- bership was conducted in the plant which the respondents' super- visory employees witnessed and in which they actively participated. All of the Association's members signed its register during working hours, most of them at the solicitation of Luda Porter who brought the` book' 'around to the employees. Mrs. Reffitt testified that when she refused to sign at Porter.'s request, Berman, who was standing 10 or 12 feet from her, shook his head "no." Elizabeth Crim was asked by Mrs. Evans, a supervisory employee in charge of the blouse department, how she stood on the' question and when she replied "neither one" Evans said, "you are on the fence. You are either for or against us." When Mrs. Evans asked Catherine Crim' if she was going to sign the register, Catherine replied "I don't believe in giving 25¢ for nothing." Evans then inquired, "Don't you think your job is worth 25¢? I am not forcing you to sign it, just asking You." Edna Sutherland, who signed the Association's register in February, stated that Fox and Evans asked her to join and that the latter added, "if I stick to them she will stick to me." On February 20 the Association notified the respondents in writ- ing that it had a majority of the employees as members and requested recognition as exclusive bargaining agent. On the following day the respondents, by letter, accepted the Association "as the exclusive representative for the employees of this factory for the purpose of collective bargaining, in respect to the rate of pay, wages, hour of employment, and other conditions of employment.", On March 7 the respondents' attorney wrote to Pendleton, mentioning a conference of the day before at which a proposed contract had been presented, and setting forth suggestions as to certain sections of the proposal. Among the suggestions made were the following : That the contract should be for 2 years instead of 1; that on October 24, 1939, the mini- mum hourly wage rates, under the Wage and Hour Law, would be increased to 30 cents instead of, 25 cents as provided by the contract; that the respondents could not permit meetings of the Association to be held at the plant during working hours; and that, although the respondents were not in favor of'a closed-shop provision, they would accept it. Pendleton replied by letter of March 8 that the Associa- tion would insist on a 1-year contract, and refused to agree with a; suggestion made by Jouett as to calling in a third person in the event arbitration were necessary. On all other questions, Pendleton either accepted the changes suggested by Jouett or explained why they were not necessary. On March 8 the contract was signed by Straughan as president and Porter as secretary of the Association and by Green- field for the respondents. On the same day, pursuant to a notice 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posted in the plant, a meeting of all employees was held in the plant and the contract was read. On March 27, .at a meeting in the City Hall, the members of the Association voted to accept the contract. -It is clear that this amounted to no more than a vote of confidence in the Association since the contract was already binding upon it. The contract provided for a closed shop and by its terms gave employees 10 days in which to sign the Association's register. Before the ex- piration of the 10-day period a charge of unfair labor practices had been filed with the Board's Regional Office and the Regional Director had advised the respondents not to discharge any employees under the contract and to attempt to secure an extension of time. Jouett wrote Pendleton requesting such extension but the latter replied that he had consulted the executive board of the Association and that it had refused to extend the time. A number of employees of the respondents signed; the Association's register on the last possible day. Mary Green told Berman that the reason she had, not joined before was because "I hadn't been really for it." Berman told her to go ahead and sign it and he was sure things would work out all right. Later Green talked to Greenfield, told him that she was not satisfied with the 25-cents per hour wage and that that was the reason she did not sign for the Association. Greenfield told her "that he thought that things would work out all right and would be made all right, and to go ahead and sign it ... She signed that afternoon. Nettie Adams stated the circumstances surrounding her joining of the Association as follows : I hadn't intended to join, didn't see anything in it and Berman called one of the ladies off and said he wanted her to join and wanted her on, and he didn't saything to the rest of us because if we wanted to work we had better join, and as I was a widow woman ,wvith a child, I had to work, and had no support but myself and went down with Mrs. Wilson and signed it about 4: 00 o'clock in the afternoon. We have seen that as early as July 1937 the respondents suggested to employees that a company union be formed. However, on July 7, 1937, the contract discussed above, in which employees agreed not to join any union, was executed and union activities were effectively stopped until March 1938. There was no need for further action by the respondents at the time. In January 1939, when the Amalgam- ated began to organize, the respondents again made their position clear through statements of supervisory employees and through the letter of January 20, 1939. In the letter the respondents spoke of the "legal" and "moral'' obligations under the anti-union contract of July 7, advised employees of their right to self-organization and PETER PAN COMPANY, INC. 541 stated (contrary to the express language in the contract of July 7), "This right has never been denied you, nor the right to present to us your claims or complaints and discuss and advise with us concerning your problems, ..." In the next paragraph employees are reminded of the fact that "We have satisfactorily and harmoniously worked together, here in Winchester, for many years, through both hard 'times and good times without an Union Organization . . ."; and in the following paragraph employees are asked what they expect to receive from any union, that they could not receive from the respond- ents. It would be difficult to mistake the respondents' clearly ex- pressed opposition toward unions as contained in the statement. In addition, the respondents subtly suggested that if the employees de- sired a union, the preferable action would be to organize one of their own. When one of the employees took it upon herself to "do something about it to keep the other out," she found willing assistants in the respondents' foremen and other supervisory employees who did not hesitate to express their disapproval of the Amalgamated and their sanction of a company union. Straughan's speech in the depart- ment over which Fox was foreman so well expressed the attitude of the respondents that Berman invited her to his division to repeat it. It cannot be questioned that employees were influenced by this demon- stration of approval by Berman. As we said in Matter of Bethlehem Steel Corporation," The Act is predicated upon the recognition of the dominant and overwhelming influence which the employer, by virtue of superior economic power and the fact that the employee' s means ,of livelihood is in his hands, has over the employee. The em- ployee is, as a consequence of this disparity in economic power, sensitive to the desires of his employer, and acutely responsive to any coercion or interference by the employer. In protecting the organization of employees so as to make collective bargain- ing a reality, the Act, therefore, forbade all employer interfer- ence with the self-organization of its employees and proscribed employer domination and interference with the administration of a labor organization .. . We, have also seen that when the Association was organized, the respondents' supervisory employees took an active part in the solici- tation of members during working hours. After a majority had been secured, the Association presented its demand for exclusive recogni- tion and the respondents lost no time in acceding to that demand. 6 Matter of Bethlehem Steel Corporation, a Delaware Corporation, Bethlehem Steel Com- pany, a Pennagli.ania Corporation and Steel Workera Organizing Committee, 14 N L R. B. 539 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The contract containing a closed-shop provision was executed with only slight delay. It is plain that the formation of the Association was the result of the respondents ' bitter and well-publicized hostility to outside unions. The respondents' eager support and acceptance of the Association , which was directly responsible for its existence, also served as further illustration of their anti-union attitude. The respondents contend that the statements and acts , of their foremen and supervisory employees favoring the Association and attacking the Amalgamated are not binding upon the respondents because they were made without authority from the respondents; that , in the letter of January 20, 1939, which we have quoted above, Greenfield informed each of the employees of the respondents' poli- cies with respect to unions ; and that it was readily discernible to the employees that the expressions and actions of the foremen and supervisory employees contrary to such policies were merely per- sonal ' expressions without sanction of the respondents . The Asso- ciation makes a similar contention . It also argues, as do the respondents, that since the employees knew that the foremen and supervisory employees were acting without authority the employees could not have been influenced by their statements and actions. In support of this 'argument it refers to a letter dated, February 13, 1939, from -Greenfield to Alice Mabe in which Greenfield advised that he had just returned from Florida and learned that Mabe had been discharged by Berman a few days before because she had been engaging in union activities during working hours which disrupted the efficient operation of the plant . The letter stated that if Mabe had engaged in the activities reported by Berman her. discharge would have been justified, but that since . only Greenfield had the power to discharge employees Mabe might return to work. The letter continued, in part, as follows:- , You have a right to solicit membership in the factory at recess to any organization of your choosing, but not during working hours. However, we have made no serious objection to you or - others doing this to a reasonable, and moderate extent during working hours provided such solicitations are made without annoyance to or complaint from other employees involved. Mabe showed the letter to several of her fellow employees, and returned to work. - The contention that the statements and actions of the respondents' foremen and supervisory employees favoring the Association and attacking the Amalgamated are not binding upon the respondents is without merit. Greenfield's letter of January 20 , especially when PETER PAN COMPANY, INC. 543 viewed in the light of his past activities with respect to unions, evinced no genuine intention to adopt a "hands-off" policy with regard to unions. Rather it showed a determination to undermine the efforts of the Amalgamated while paying lip-service to the employees' right to self-organization. It could not, therefore, with- draw from the supervisory employees the authority to act in the manner that they did. Moreover, the supervisory employees, by word and deed, clearly indicated that they placed no such interpre- tation upon the letter. It is true that Greenfield's letter to Mahe shows that in one instance he was unwilling to discharge one of his employees because of her union membership and activity. It should be noted, however, that this letter was not distributed generally among the employees ; that the letter was not received until after the Association had achieved virtually a completed organization; and that it did not detract from the authority of the supervisory employees to participate in the inter-union struggle in the plant. But even if the letter had unequivocally expressed the respondents' desire to leave their employees free to exercise the rights guaran- teed them by the Act, it still would not have freed them of respon- sibility for the acts of their supervisory employees under the circumstances here present. Berman, Fox, Lewis, Evans, and Stern were in charge of various departments of the plant; they supervised the work and directed the duties of the employees. It is not dis- puted that they engaged in the activities in question. Nor is it contended that they were ever directed to cease such activities. The respondents may not evade responsibility for acts of supervisory employees by publishing a statement of policy which accords with the Act, while steadfastly pursuing a contrary policy. In view of the foregoing, it is hardly necessary to add that we deem specious the Association's contention that the action of the supervisory employees did not influence the employees. We have on many occasions pointed out that employees, whose means of live- lihood are in the hands of the employer, are acutely sensitive to the' desires of the employer. We do not think that it can be successfully controverted that the respondents' employees were influenced by the respondents' supervisory employees. Moreover, such statements are proscribed by the Act even though there is no showing of the extent of their influence. We find that the respondents have dominated and interfered with the formation and administration of, and contributed support to, the Peter Pan Employees Association and have thereby interfered with their employees in the exercise of the rights guaranteed by Sec- tion 7 of the Act. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The discharges (a) The discharges pursuant to the closed-shop provision On March 17, 1939, the respondents addressed to Mattie Fryman, Martha Reffett, Alice Mabe, Mary King, Edna Brinegar , Catherine Crim, Elizabeth Crim, and Iva Evans the following letter : We have been advised by the Peter Pan Employees Association that you have declined to join that Association , and have an- nounced that you would not join or become a Member of that Association accordingly it has demanded that we comply with the Seventh (7) Clause of its contract with us and relieve you from further employment here. We are compelled to abide by the terms of our contract, and while we regret to lose your services there is no alternative left to us but to advise you that we are dispensing with your services from this date , but will be glad to reemploy you should you later join the Employees Association. About a week later the eight discharged employees went to see Greenfield , who alleged , "I haven't discharged anyone. The girls forced me to sign the letters." The respondents make no claim that there was any reason, other than the contract , for the discharge of the eight women. The con- tention that such compliance with the contract was privileged is, how- ever, clearly untenable . Since, as found above, the Association was formed pursuant to the unfair labor practices of the respondents, the discharges of the above -mentioned employees pursuant to the closed- shop provision of the contract are not protected by the proviso to Section 8 ( 3) of the Act and are clearly discriminatory.7 We find that the respondents , by discharging Mattie Fryman, Martha Reffett, Alice Mabe, Mary King, Edna Brinegar , Catherine Crim, Elizabeth Crim, and Iva Evans, and by thereafter refusing to reinstate them, discriminated with regard to their hire and tenure of employment , thereby discouraging membership in the Amalgam- ated and encouraging membership in the Association . We also find that by such action the respondents have interfered with, re- strained , and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. (b) The alleged discriminatory lay-off of Dorothy Hall Dorothy Hall had worked for the respondents intermittently from January 1937 until February 3, 1939. She had been laid off a num- ' Matter of Clinton Cotton Mills and Local No. 2182, United Textile Workers of America, 1 N. L. R. B. 97. PETER PAN COMPANY, INC. 545 ber of times and had quit once, but each time was recalled to work. On February 3, 1939, Dorothy Hall, Ethel Barra, and Martha Brown were laid off. Within a few days thereafter Barra and Brown were called back to work but Hall was not. Up to the date of the hearing she had received no notice that she was discharged and there was no evidence that she had applied for reinstatement. Nor was there evidence that any new employee had been hired in her place. The respondents contend that Hall was laid off temporarily because of a lack of work in her line and that she will be called back to work. Although Hall was a member of the Amalgamated and testified that she had solicited membership in the plant, she admitted that she did not know whether the fact of her membership and activity was known to the respondents. The evidence does not establish that Dorothy Hall was laid off because of her union membership or activity. We find that the respondents, by laying off Dorothy Hall, did not discriminate in regard to her hire or tenure of employment. (c) The discriminatory refusal to reinstate Maggie Hall The complaint alleges that the respondents, on November 2, 1938, discharged Maggie Hall for the reason that she assisted and gave evidence to agents of the Board in connection with charges against the respondent corporation in Case No. C-1139, and that the respond- ents thereafter refused to reinstate Hall for the further reason that she gave testimony under the Act in that case at a hearing on No- vember 17, 1938. The complaint alleges that by such discharge and refusal to reinstate Maggie Hall the respondents violated Section 8 (4) of the Act. The respondents' answer denies these allegations. Maggie Hall began working for the respondents in February or March 1938, doing finishing, hand work, and later clipping threads off seams. On November 2, 1938, Berman, her foreman, told her to "go home," but offered no explanation for his action. It is not clear whether others were also laid off at the same time, but it would appear that they were, from Hall's testimony, that the only girl retained in her group was one who had less seniority than she. The testimony shows that Hall's home is immediately adjacent to the respondents' plant and that it is possible to see from one to the other. Sometime in October, prior to the hearing in Case No. C-1139, the Board's attorney called at Hall's home and, finding that she had not come in from work, waited on the front porch of her house. Hall testified at the hearing on November 17, 1938. The respondents contend that Hall was not discharged but was laid off temporarily because she worked on black and woolen mate- rials and the plant was not engaged in that work at the time. It does not appear why clipping threads on seams should be confined to one 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD particular type of material. However, in view of the fact that others apparently were laid off at the same time as Hall, and in view of the further fact that there was no evidence that the Board's attorney was seen at Hall's home, we do not think the evidence establishes that the cessation of her employment was due to the fact that she gave evidence to the Board's attorney. During the period from the date of her lay-off until January 1, 1939, Hall returned to the plant almost every week and asked Ber- man for work. On one of these visits Berman told her to come back after New Year's. However, at the time of the hearing she was still unemployed. Since her home is next to the plant there can be no question as to the respondents' ability to locate her if they desired to reinstate her. On November 18, the day after the hearing at which she testified for the Board, Hall returned to the plant and found three new girls doing the work which she had been doing at the time she was laid off. Thereafter, she started to get her cushion and Berman told her that she need not do that. She replied that she would bring it back when she was called back to work and Berman stated, "I am not going to work anybody but Allie [Dennison] and the 3 girls." He then walked off and refused to speak further to her. No explanation was given either for the employment of three new girls to do the same work as that previously done by Hall or the refusal to reinstate her. Although Greenfield testified that he did not think any new girls were hired after November 2, 1938, his testi- mony indicates that he was not aware of who was hired, did not know the names of the employees, and actually had no knowledge at all as to the matter. We find that three new employees were hired after Hall's lay-off, and that they were engaged in work which Hall had been doing prior to her lay-off. We find that the respondents refused to reinstate Maggie Hall on and after November 18, 1938, for the reason that she gave testimony at the Board's hearing on November 17, 1938. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE - The activities of the respondents set forth in Section III above, occurring in connection with the operations of the respondents de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the respondents have engaged in unfair labor practices, we shall order them to cease and desist therefrom and to PETER PAN COMPANY, INC. 547, take certain affirmative action which we find necessary to effectuate the'-policies of the Act. We have 'found that the respondents interfered with, restrained, and coerced 'their employees by statements and threats and that the contract, of July 7, 1937, was entered into as a result of such unfair labor practices. We have also found that the contract itself was in violation of the Act, irrespective of the coercion practiced by the re- spondentsin, obtaining its execution. We shall order the respondents to cease and desist from such practices- and to cease and desist from entering into any contract with its employees requiring them not to join or assist a union. - We have also found that the respondents have dominated and inter- fered with the'formation and administration of the Association. In order to effectuate the policies of the Act and free the employees of the respondents from such domination and interference and the effect thereof, which constitute a continuing obstacle to the exercise by,the employees of the rights guaranteed them by the Act, we will order the respondents to withdraw all recognition from the Association as representative of any of the respondents' employees for the purpose of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work, and to disestablish it as such representative. Since the agreement of March 8, 1939, between the respondents and the Association embodies recognition of the Association as such representative, we will order the respondents specifically to cease and desist from giving effect to this or any other agreement it may have entered into with the Associa- tion in respect to rates of pay, wages, hours of employment, or other conditions of work. We have further found that the respondents discriminated against Mattie Fryman, Martha Reffett; Alice Mabe, Mary King, Edna Brine- gar, Catherine Crim, Elizabeth Crim, and Iva Evans, and shall there- fore order the respondents to reinstate them to their former or substan- tially equivalent positions and to make them whole for any loss of pay they have suffered by reason of their respective discharges by pay- ment to each of them, except Iva Evans, of a sum equal to the amount which she normally would have earned as wages from the date of her discharge to the date of the offer of reinstatement, less her net earn- ings 8 during said period. It was stipulated at the hearing that Iva 8 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining woik and working else- where than for the respondent, which would not have been mcuired but for the 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- sea, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R B. 440 Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects are not deductible as `net earnings," but, as provided in the Order below , shall be deducted and paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work -relief projects. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Evans would have been compelled to quit working on April 1, 1939, because of illness, but that she would be able to return to work on De- cember 1, 1939. We shall order that she be made whole for loss of pay suffered between March 18, 1939, and April 1, 1939, and from December 1,1939, to the date of the offer to reinstate her. Since we have found that the respondents did not discriminate against Dorothy Hall by discharging her on February 3, 1939, we shall order the dismissal of the complaint in so far as it alleges that she was discharged in violation of the Act. We have found that the respondents discriminatorily refused to reinstate Maggie Hall because she gave testimony at a hearing before the Board. We shall order the respondents to offer to her reinstate- ment to her former or substantially equivalent position and to make her whole for any loss of pay she has suffered by reason of such dis- crimination by payment to her of a sum of money equal to the amount which she normally would have earned as wages from November 18, 1938, to the date of the offer of reinstatement to her, less her net' earnings 9 during said period. Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, the Board makes the following : CONCLusIONs OF LAW 1. United Garment Workers of America, Peter Pan Employees Association, and Amalgamated Clothing Workers of America are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the administration of Peter Pan Employees Association, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to hire and tenure of employment of Mattie Fryman, Martha Reffett, Alice Mabe, Mary King, Edna Brinegar, Catherine Crim, Elizabeth Crim, and Iva Evans, thereby discouraging membership in a labor organization, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By discriminating against Maggie Hall because she gave testi- mony under the Act, the respondents have engaged in and are en- gaging in unfair labor practices, within the meaning of Section 8 (4) of the Act. 5. By interfering with, restraining,, and coercing their employees in the exercise of rights guaranteed in Section 7 of the Act, the re- spondents have engaged in and are engaging in unfair labor prac- tices, within the meaning of Section 8 (1) of the Act. See footnote 8, supra PETER PAN COMPANY, INC. 549 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 7. By laying off Dorothy Hall and Maggie Hall the respondents have not engaged in an unfair labor practice, within the meaning 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 the re- spondents, Peter Pan Company of Winchester, Inc., and Edward Greenfield and Maurice E. Greenfield, partners, doing business as M. E. Greenfield Co., Winchester, Kentucky, and their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Entering into any contract with their employees requiring the employees to refrain from joining a union or to use their efforts and influence to prevent the organization of a union; (b) Discouraging membership in United Garment Workers of America or Amalgamated Clothing Workers of America, or any other labor organization of their employees, by discriminating in regard to hire or tenure of employment or any term or condition of employment ; (c) Dominating or interfering with the administration of Peter Pan Employees Association, or with the formation and administra- tion of any other labor organization of their employees, and from contributing financial and other support to Peter Pan Employees Association, or any other labor organization of their employees; (d) Recognizing Peter Pan Employees Association as the repre- sentative of any of their employees for the purpose of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work ; (e) Giving effect to any contract they, may have entered into with Peter Pan Employees Association concerning wages, hours, or work- ing conditions, whether it be the contract in existence at the time of the hearing in this case or whether another has been entered into sub- sequent to said hearing; (f) Discharging or otherwise discriminating against any employee because he has filed charges or given testimony under the Act; (g) In any other manner interfering with, restraining, or coercing their employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively' 2R 30:12-41-vol 21--36 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through representatives of their own choosing, and to engage in con- certed activities, .for the purpose of collective bargaining or other mutual aid or protection, as guaranteed by 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 Peter Pan Employees Asso= ciation as the representative of any of their employees for the pur- pose of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and completely disestablish Peter Pan Employees Association as such representative; - (b) Notify in writing each of their employees that the contract entered into on March 8, 1939, with Peter Pan Employees Associa- tion is invalid and that no attempt will be made to enforce it; (c) Offer to Mattie Fryman, Martha Reffett, Alice Mahe, Mary King, Edna Brinegar, Catherine Crim, and Elizabeth Crim, and to each of them, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges; and make them whole for any loss of pay they may have suffered by reason of the respondents' discrimina- tory action against them by payment to each of them of a sum of money equal to that which she normally would have earned as wages from March 17, 1939, until the date of the offer of reinstatement, less her net earnings 10 during said period; deducting, however, from the amount otherwise due each of the said employees, monies re- ceived by such employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects; and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other gov- ernment or governments which supplied the funds for said work- relief projects; (d) Offer to Iva Evans, on or before December 1, 1939, full rein- statement to her former or substantially equivalent position without prejudice to her seniority or other rights and privileges; and make her whole for any loss of pay she may'halve suffered by reason of the respondents' discriminatory action against her by payment to her of a sum of money equal to that which she normally would have earned as wages from March 17, 1939, until April 1, 1939, and from Decem- ber 1, 1939, to the date of the offer of reinstatement, less her net earn- ings 70 during said period ; deducting, however, from the amount otherwise due hei, monies received by her during said periods for work performed upon Federal, State, county, municipal, or other 10 See footnote 8, supra. PETER PAN COMPANY, INC. 551 work-relief projects; and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (e) Offer to Maggie Hall immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority or other rights and privileges;-and make her whole for any loss of pay she may have suffered by reason of the respondents' discriminatory action against her by payment to her of a sum of money equal to that which she normally would have earned as wages from-November 18, 1938, until the date of ,the offer of rein- statement, less her net earnings 11 during said period, deducting, however, from the amount otherwise due her, monies received by her during said period for work performed upon Federal, State, county, municipal, or other work-relief projects; and pay over the amount go deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which sup- plied the funds for said «.ork;relief projects; (f) Post immediately and keep posted for a period of at least sixty (60) consecutive days from the date of posting, throughout the respondents' plant, notices to employees that they will cease and desist in the manner set forth in paragraphs 1 (a), (b), (c), (d), (e), (f), and (g) and will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this Order; and that their employees are free to become or remain members of United Garment Workers of America or Amalgamated Clothing Workers of America, that they need not become or remain members of Peter Pan Employees Association, and that the respondents will not dis- criminate against any employee because of membership or activity in United Garment Workers of America or Amalgamated Clothing Workers of America or because of non-membership in Peter Pan Employees Association. (g) Notify the Regional Director for the Ninth Region in writing within ten (10) days from the date of this Order what steps they have taken to comply herewith. AND. IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondents, by discharging Dorothy Hall, engaged iii unfair labor practices within the meaning of Section 8 (3) of the Act, and in so far as it alleges that the respondents discharged Maggie Hall on November 2, 1938, in violation of Section 8 (4) of the Act, be, and the same hereby is, dismissed. u See footnote 8, svpra