Hollywood-Maxwell Co.

In the Matter of HOLLYWOOD-MAXWELL COMPANY, A CORPORATION and INTERNATIONAL LADIES GARMENT WORKERS UNION Case No. C-1489.-Decided June 12, 1940 Brassiere and Bust Form Manufacturing Industry-Interference, Restraint, and Coercion: domination of, and interference with, formation and administra- tion of plant union ; activity of supervisory employees ; wage concessions to plant union, and other support; bribery of organizer of outside union-Company- Dominated Unions: successor organization to first dominated union formed pursuant to the suggestion of, and with the financial aid, of. the employer ; organizing activity of those identified with dominated organization charged to employer ; successor to second dominated organization found identical with it ; facile recognition of, and conclusion of contract with, last of the three plant organizations; inadequate check on claim of majority; contrasting treatment of outside union ; disestablished as representatives for collective bargaining- Contract: with company-dominated union granting exclusive recognition, abro- gated-Unit Appropriate for Collective Bargaining: production workers, exclud- ing mechanics, watchmen, and stockroom, shipping, maintenance, office, clerical, and supervisory employees; bargaining history and substantial agreement of the employer and the I. L. G. W. U. found to establish ; stipulation as to employees within the unit ; disagreement over inclusion of several employees resolved by reference to their functions and to construction of the unit by means of the stipulation-Representatives: proof of choice : membership cards ; evidence of membership in dominated organizations disregarded-Collective Bargaining: refusal to engage in : violation of agreement to bargain with out- side union, if check by Board agents disclosed majority in its favor ; recogni- tion of, and conclusion of contract with, dominated organization upon inadequate showing of majority, after insistence upon a consent election in the case of the outside union ; employer ordered to bargain-Discrimination: charges of, dismissed. Mr. Francis J. McTernan, Jr., for the Board. . Latham & Watkins, by Mr. Paul R. Watkins and Mr. Richard Lund, of Los Angeles, Calif., for the respondent. Mr. Basil Feinberg, of Los Angeles, Calif., for the I. L. G. W. U. Mr. Arthur H. Lewis and Mr. Max Feingold, both of Los Angeles, Calif., for the Group and Mrs. Fay Sheldon. Mr. William Busick, for Mr. William Busick. Mr. Bertram Diamond, of counsel to the Board. 24 N. L. R. B., No. 63. 283035-42-vol. 24-42 645 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by the International Ladies Garment Workers Union,' herein called the I. L. G. W. U., the National Labor Relations Board, herein called the Board, by Towne Nylander, Regional Director for the Twenty-first Region (Los Angeles, California), issued its complaint dated June 26, 1939, against Hollywood-Maxwell Company, 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), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent, the I. L. G. W. U., and upon the Independent Brassiere Workers of California, Incorporated, herein called the Brassiere Workers, and the Independent Productive Group, herein called the Group, the latter two being labor organizations alleged in the complaint to have been dominated by the respondent, and upon the Central Labor Council of Los Angeles, and the Los Angeles Industrial Union Council. The complaint, as amended at the hearing, alleged in substance that the respondent : (1) discouraged membership in the I. L. G. W. U. by making disparaging statements about the I. L. G. W. U. to its em- ployees and by paying money to William Busick, an organizer for the I. L. G. W. U., to induce him to use his influence to obtain a Board election at a time when the Brassiere Workers could win such an election; (2) dominated and interfered with the formation and ad- ministration of the Brassiere Workers and its successor, the Group, inter alia, by hiring certain persons to form the Brassiere Workers, by granting to these organizations special privileges denied to the I. L. G. W. U., by recognizing the Brassiere Workers as exclusive bargaining agent, and by signing a contract with the Group, as sole bargaining agent, at a time when the Group did not represent a majority of the employees in the appropriate unit; (3) because of union membership and activity, discharged about October 26, 1938, and March 3, 1939, respectively, and refused to reinstate, La Mont Stetzer and Harry Weingarten, and laid off, in December 1938, Irene B,fore the charge and the pleadings were amended at the hearing by striking the words "Local No. 236, " the I . L. G. W. U. was designated as International Ladies Garment Workers Union Local No. 236. ' HOLLYWOOD-MAXWELL COMPANY 647 Ellis, Dorothy Grant, Dorothy Nelson, and Lorraine Venable, the latter being rehired to a less desirable position at a reduced wage, and being refused reinstatement to her former position, for the same reason; (4) refused about March 2, 1939, and thereafter, to bargain collectively with the I. L. G. W. U. as the exclusive repre- sentative of all its employees in the appropriate unit, although the I. L. G. W. U. had been duly designated by a majority of the em- ployees in that unit as their bargaining representative. On July 8, 1939, the respondent filed an answer denying that it had engaged in the alleged unfair labor practices. The Group, and Fay Sheldon, an employee named in the complaint as being one of the leaders of the Group, filed an answer dated July 8, 1939, denying that the Group was the successor of the Brassiere Workers, or that it had been af- fected by any of the alleged unfair labor practices of the respondent. Pursuant to notice, a hearing was held at Los Angeles, California, from July 10 to 28, 1939, inclusive, before Henry W. Schmidt, the Trial Examiner duly designated by the Board. Motions dated July 11, 1939, asking leave to intervene, were filed with the Trial Examiner by Fay Sheldon and the Group, and by William Busick. These motions were granted by the Trial Examiner. The Board, the respondent, the I. L. G. W. U., Fay Sheldon and the Group were represented by counsel; Busick represented himself; all participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing and in his Intermediate Report the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. * The rulings are hereby affirmed, except in so far as the Trial Examiner sustained an objection to the admission in evidence on behalf of the Board of the union authorization and membership cards of Irene Oliver Connor and Louella Phillips.2 That ruling is hereby reversed and the items are admitted in evidence as Board Exhibits 28U and 28FF. The Trial Examiner reserved ruling on the admission in evidence of Intervenor Exhibits 9A, 9B, 9C, and 9D,3 copies of two letters purporting to revoke authorizations of the I. L. G. W. U., accompanied by registered-mail receipts. They are hereby admitted in evidence. Subsequent to the hearing, the respondent submitted a brief for the consideration of the Trial Examiner. 2 See footnote 33, infra. 2 See footnote 33, infra. The Trial Examiner made no final ruling on their admission in his Intermediate Report. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Feburary 7, 1940, the Trial Examiner issued his Intermediate, Report, copies of which were duly served upon the parties. He found that the respondent had engaged and was engaging in unfair labor- practices affecting commerce within the meaning of Section 8 (1), (2), and (5) and Section 2 (6) and (7) of the Act, as alleged in the com- plaint. He recommended that the allegations in the complaint relat- ing to the commission of unfair labor practices within the meaning of Section 8 (3) of the Act be dismissed. He recommended further that the respondent cease and desist from engaging in unfair labor prac. tices; that it withdraw all recognition from, cease giving effect to any agreement with, and completely disestablish the Group; and that, upon request, it bargain collectively with the I. L. G. W. U. as the exclusive representative of the employees in the appropriate unit. Thereafter the respondent and the I. L. G. W. U. filed exceptions to the Intermedi- ate Report; the respondent also filed again, by reference, the brief previously filed by it before the Trial Examiner. The respondent waived a hearing for the purpose of oral argument before the Board. The Board has considered the respondent's brief and the exceptions of the respondent and of the I. L. G. W. U. and finds the exceptions, except such as are consistent with the findings of fact, conclusions of law, and order set forth below, without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Hollywood-Maxwell Company is a California corporation engaged in the manufacture and sale of brassieres and bust forms. Its offices and principal place of business are in Los Angeles, California; it also operates factories in Cameron, Missouri; Princeton, Illinois; and Natchitoches, Louisiana; and maintains offices in New York City and Chicago, Illinois. In this proceeding we are concerned only with its Los Angeles factory. The total value of the raw materials purchased by the respondent for use in the Los Angeles plant in 1937 was about $123,174; in 1938, about $136,928; from January 1 to June 30, 1939, about $64,156. About 90 per cent of all raw materials used are purchased outside the State of California. The respondent sold about $403,688 worth of finished products manufactured at the Los Angeles plant in 1937, and about $394,139 worth from January 1 to November 1, 1938. From November 1, 1938, to July 10, 1939, the respondent's sales maintained substantially the same level that existed during the 12-month period immediately preceding November 1, 1938. During all of these periods HOLLYWOOD-MAXWELL COMPANY 649 :approximately 67 per cent of the finished products were shipped out- side of the State of California to every State in the United States and to foreign countries. H. THE ORGANIZATIONS INVOLVED International Ladies Garment Workers Union, Independent Bras- siere Workers of California, Incorporated, and Independent Produc- tive Group are unaffiliated labor organizations admitting to ,membership employees of the respondent at its Los Angeles plant. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; interference with, domination of, and support given to the Brassiere Workers and the Group On July 30, 1,937, with Organizer William Busick presiding, the J. L. G. W. U. held its first organizing meeting among those employed .at the respondent's Los Angeles factory. During working hours the following day, William Murphy, then foreman of the cutting room, called a meeting of the employees on the respondent's premises. In addition to the employees of the plant, Ruth Ice, forelady,4 and Theresa Woodyard, supervisory inspector a and sister-in-law of Joseph R. Bowen, president of the respondent, attended. Murphy urged the formation of an inside union. He stated that the employees would then be able to fix by themselves the amount of their dues, and that "this money could go to pay for flowers when somebody was sick, or -something of that sort"; that there "wasn't any use of paying officers of an outside union a big salary"; and that those employed in the shop could "do the same thing [i. e., have a union] . . . without any outside help." He characterized the C. I. O. as "communistic." 8 Several -employees spoke in favor of the I. L. G. W. U. Murphy asked for a :show of hands to indicate who favored an inside, and who the outside •organization. There was no response. On August 2, the next workday, five of the respondent's employees were laid off. Four of these had spoken in favor of the I. L. G. W. U. .at the meeting called by Murphy. At the close of-that workday, Ruth Ice stood at the time clock telling employees not to check out. She explained to one employee, while 4 Ice had power to hire and discharge employees, was the only forelady in the plant, and engaged only in supervisory activity. 'In addition to the powers possessed by Cora Stafford, now in charge of inspection, Woodyard had power to hire employees. IIn 1937 the I. L. G. W. U. was affiliated with the Committee for Industrial Organization. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD holding her hand over the time clock, that someone was going to speak. Murphy again addressed the employees on the respondent's premises. He again argued in behalf of an inside union, asserting that it would be just as good as an outside union; that "we wouldn't have to be paying our dues to some outside organization and we could start a treasury and use the money for sick benefits." Woodyard. also spoke in support of an inside union. She passed around to those present a sheet of paper on which they could "sign up" for a plant union. Hal Brink, George Cannon, and Fay Sheldon, all non-supervisory employees, also urged the cause of an inside union. About August 3 a mimeographed leaflet bearing the name of Cannon was circulated among the employees. It called for the forma- tion of an independent bargaining committee and contained argument against and disparagement of an outside union couched in the terms -employed by Murphy.' That evening, in order to answer those who had attacked it at the plant meetings, the I. L. G. W. U. held a meeting to which it invited all persons employed by the respondent. Murphy and Ice attended. They asked why a company union would not be satisfactory. Ice, informed by Busick that she and Murphy, as super- visory employees, could not legally participate in the formation of an independent organization, and were ineligible for membership in the I. L. G. W. U., replied that she was against the I. L. G. W. U. because it would not do her any good. During the discussion Murphy declared that he had paid out of his own pocket for the leaflet that had been distributed that day. Although Murphy appeared as a witness for the respondent, he did not deny having made the statement. Cannon testified that he had received no external inspiration for any of the leaflets which he wrote and that he had collected the money for mimeographing them from prospective members of the independent organization. There is no inconsistency between Cannon's testimony and Murphy's admission. Moreover, about August 4, as described below, Murphy directly sponsored Cannon's effort to form an inside union. We find that Murphy contributed to the expense of producing the leaflet of August 3. The next day, August 4, another meeting was held in the plant immediately after working hours. Murphy told the employees that Cannon was to speak. Cannon, in the presence of Murphy, proceeded to organize an inside union which came to be designated as the United Brassiere Workers, herein called the United. At this meeting a gov- erning committee of the United was selected. A majority of those then elected, consisting of Irene Oliver Connor, Margaret Closkey, and Dorothy Grover, were nominated by Cannon. Two other mem- 7 "Our dues ( the price to be regulated by you ) will be used to pay the wages of any sick employee after examination by your Union Doctor , and for any other form of well being. `Not for Strikes, Committee Hall , and High Priced Organizers ' Salaries.' " HOLLYWOOD-MAXWELL COMPANY 651 bers, Hal Brink and Betty Maier, were nominated from the floor. None was a supervisory employee. Several subsequent meetings of the United's governing committee, which for a time convened as often as once or twice daily, were held at the plant of the respondent. Bowen, the respondent's president, was usually present. Herndon J. Norris, secretary and director of the respondent, and at times its attorney, attended at least one such meeting. At the first meeting the committee assured Bowen that no matter what happened they would have their own "company union." From August 11 through September 6, 1937, the I. L. G. W. U. conducted a strike at the respondent's plant. About a week before the strike the I. L. G. W. U. had proposed a contract to the respond- ent. Either shortly before or shortly after the commencement of the strike the United's committee requested of Bowen a 10-per cent wage increase and other concessions. During the strike Bowen in- formed the United's committee of the nature of the I. L. G. W. U.'s demands and observed that they were practically the same as those advanced by the United. On the pay day immediately succeeding the beginning of the strike and the presentation of the United's de- mands, the respondent granted a 10-per cent increase in the wages of its non-striking employees. Thereafter, during the latter part of the strike, Maier, a member of the United's committee, called a committee meeting for the pur- pose of conferring with Busick. Her action was taken at Bowen's instance. Before the committee met with Busick, Bowen spoke to them somewhere in the plant and urged them not to let Busick "put anything over" on them. Busick afterwards attempted, in the ab- sence of any of the respondent's officials, on the respondent's premises, and during working hours, to get the committee members to join the I. L. G. W. U. According to Norris, this meeting was arranged by himself, at Busick's request. Toward the end of the strike, conferences were held at the Board's regional office in an effort to determine which of the two labor organ- izations, the I. L. G. W. U. or the United, represented a majority of the respondent's employees. Bowen, Norris, Shirley Haddow, vice president of the respondent, and committees from both organizations attended. At the first meeting the Regional Director pointed out to the respondent's officials and the United's committee the impro- priety of their conduct in forming the inside organization. Imme- diately after this meeting, Cannon took several members of the' United's committee to meet Haddow and Bowen. They were told to "stick together," and it was understood that they were to re-form their organization. Following a similar conference at the regional office a few days after the first one, and still before the termination of the strike, 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cannon and members of the United's committee met at the office of the United's attorney, Delamere F. McCloskey. The committee was advised to get new membership cards signed by' the employees away from the respondent's premises. Shortly after this conference, sometime after August 30, the United's committee changed lawyers. While there was some senti- ment among its members that McCloskey was not doing enough, it was Cannon who made the decision to get a new lawyer, Max Feingold.8 On the afternoon of the day that the decision to shift attorneys was made, Cannon and other members of the United's com- mittee visited Feingold's office during working hours. On this occa- sion, Feingold was retained by the committee to organize an inde- pendent corporation. Back at work later in the afternoon, Maier, one of the members of the committee, told Dorothy Grover, a piece worker and another committee member who had participated in the conference, that they would be paid for the time they had lost in Feingold's office. The next day committee members who had been to see Feingold received a special payment from the respondent. In the case of Dorothy Grover, it amounted to $2 in cash. The record does not clearly delineate all of the subsequent events in the metamorphosis of the Brassiere Workers, the corporation which Feingold organized at the request of the United's committee. Although the termination of the strike on September 6 was attended by the conclusion of an exclusive recognition contract between the respondent and the I. L. G. W. U., the articles of incorporation of the Brassiere Workers are dated September 7. Subsequently, the following were elected officers of the Brassiere Workers : Fay Shel- don, chairlady; George Cannon, secretary; Cecilia Behnke, treasurer; Catherine Reynolds, and Ellen Saylor. None of these was a super- visory employee. The bylaws of the Brassiere Workers are dated September 13, 1937, and bear the certification of George Cannon, as secretary. A petition for the certification of the Brassiere Workers pursuant to Section 9 (c) of the Act was executed by Sheldon, and others, and witnessed by Feingold, on September 15, 1937. By order dated February 18, 1938, the Board dismissed the Brassiere Workers' petition for certification, which was filed October 14, 1937. The transition from the United to the Brassiere Workers was not abrupt, elements of both organizations functioning side by side for a time. Just before the strikers returned to work and prior to the execution of the articles of incorporation of the Brassiere Workers and the election of its officers, Norris addressed the non-striking employees during working hours in the plant. When he was done, b About this time Cannon succeeded Brink as secretary and committee member. Another employee named Marie Spera Belmonte had previously been added to the committee. HOLLYWOOD-MAXWELL COMPANY 653 Sheldon spoke. She asked the employees present, "Why don't you say something instead of just standing there? Why don't you say that we will stick together for our own union whether they [presum- ably the I. L. G. W. U.] are in here or not? Isn't that right?" After the strike and after their first conference with him, Feingold, again consulted with members of the committee of the United with regard to the incorporation of its successor. About 2 weeks after the striking employees returned to work, and subsequent to the execution of the articles of incorporation and of the bylaws of the Brassiere Workers, and the election of its officers, Feingold told the members of the United's committee to "stick together" because they represented the majority. Feingold was notified of the Board's dismissal of the Brassiere Workers' petition for certification, by letter dated February 25, 1938. Thereafter, according to the record of dues payments to the Brassiere Workers and the testimony of Sheldon as to the frequency of the meetings of that organization, there was an absence of substantial activity on its part until the end of September 1938. By its own terms the contract between the.I. L. G. W. U. and the respondent terminated on October 1, 1938. During the life of the contract the Brassiere Workers made no attempt to bargain with the respondent. About the end of September 1938, however, the Brassiere Workers sent a letter to the respondent claiming to repre- sent a majority of its employees and requesting investigation of its claim before the respondent proceeded to negotiate another contract with the I. L. G. W. U. In connection with this activity there must be considered the respondent's bribery of Busick. In the 3 or 4 months preceding the expiration of the contract with the I. L. G. W. U., Bowen gave about $150 to Busick in several in- stallments. Bowen admitted that the purpose of the payments was to obtain, by Busick's filing a petition for certification, an election con- ducted by the Board, at a time when Bowen doubted that the I. L. G. W. U. represented a majority.0 The understanding was that the election was to be held at the expiration of the contract. Moreover, in a speech to the employees made in Bowen's behalf in April 1939, Norris stated : 9 The following colloquy between Bowen and counsel for the Board appears in the record : Q. Did you pay him [Busick] this $25 a month so he could get an election before he could be sure his union had a majority? A. Yes, air. Q. But, during all this time [when Busick was being paid], you say Mr. Busick was in doubt whether his union represented a majority? A. That is the way he talked to me. He tried to be fair as, I think, anybody could be. We never felt that they had a majority and I think that Mr. Busick felt the same way. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the expiration date of the contract then in effect ap- proached, Mr. Busick came and said that his Union was unable to procure a majority and he felt certain that the Independent Group represented a very substantial majority of the employees .. . Mr. Busick stated that his Union was in a position to stall indefinitely, but that he could arrange to hurry the hearing through. He was told that the only desire we had was to have an early and orderly determination as to the representation of the majority of our employees in order that we might bargain with them and stop the feeling of unrest and bitterness which prevailed. Dr. Bowen knew little about the Labor Board except that an employer could not obtain an election. Mr. Busick offered to lend his efforts to procure a prompt hearing before the National Labor Relations Board in consid- eration of the company's paying him $25 per month. This was agreed to with the hope that an early hearing would thereby be held by the Board which would result in the determination of the proper organization for this company to bargain with. From the facts revealed in this statement, the efforts of the Brassiere Workers to establish its asserted majority, and the re- spondent's whole course of conduct toward the I. L. G. W. U., the United, the Brassiere Workers, and the Group, we conclude that the respondent's purpose in paying Busick was not merely to bring about an election which would eliminate the Union; it intended also to supplant the I. L. G. W. U. with the Brassiere Workers. Earlier in the year, about January 18, 1938, Bowen gave Busick a check for $275 and took from him a 90-day note in that amount. Little attempt was made to collect the note and none to have it ex- tended. In fact, the obligation was outstanding at the time of the hearing. Norris, in his April 1939 speech, described this payment as a loan requested by Busick at a time when his wife was ill and extended to him by the respondent in the hope that helping him in his troubles "might result in better feeling all around." The credibil- ity of this explanation, in so far as it suggests that the respondent's motives were perfectly proper, is impeached by Norris' admission that after Bowen had sought his advice in the matter ". . . We decided to go ahead and loan him [Busick] the money. It was not entirely philanthropic . . . maybe it might be that Busick would feel a little more kindly in his organizational efforts." It is plain that the respondent intended to bribe Busick with the monies it gave him. We have found that the respondent, in some instances, paid Busick in order to put the Brassiere Workers in the I. L. G. W. U.'s place as sole bargaining agent. But even if, as the HOLLYWOOD-MAXWELL COMPANY 655 respondent contends, the respondent was concerned only with bring- ing about a solution of the controversy over bargaining rights, it engaged in clearly illegal conduct. In the first place, the respond- ent's explanation would not cover the payment of January 1938. But, more important, it is founded upon a failure to recognize that whatever may have been the respondent's ulterior motive, its bribery .of a representative of its employees was an unlawful interference with the full freedom guaranteed to them by Section 7 of the Act.'° The contract between the I. L. G. W. U. and.the respondent termi- nated, but no election was held. With the exception of the activity .of a "price committee" set up about October 1, 1938, to adjust piece- work prices with the management, members of the Brassiere Workers made no further attempt to bargain with the respondent until about March 1, 1939. As detailed below, in February 1939 the respondent agreed to bargain with the I. L. G. W. U. if a comparison by Board agents ,of evidence of union membership with its pay rolls established that the I. L. G. W. U. represented a majority of its production employees. In March it refused to abide by this agreement. Between.the time of the agreement and the refusal, there was renewed activity on the part of the inside organization. About March 1, 1939, Feingold advised the Brassiere Workers that, in the opinion of a Board agent, it was a company-dominated organization. On receiving Feingold's advice, Sheldon and other members of the Brassiere Workers decided to dispense with the pay- ment of its corporate franchise tax. They also decided to form another organization with the following which they believed was theirs. -They considered as members of that organization, later designated as the Independent Productive Group, all who signed a petition to the Board on March 1. The preamble to the list of signatures is set out below.'1 The petition was prepared by Sheldon 10 Matter of Carlisle Lumber Co. and Sawmill Workers Union, Local 2511, 2 N. L. R. B. 248, enf'd, N. L. R. B. v. Carlisle Lumber Co., 94 F. (2d) 138 (C. C. A. 9), cert. denied, 304 U. S. 575 ; Matter of Stackpole Carbon Co . and Electrical i Radio Workers of America, Local No. 502, 6 N. L. R. B. 171, enf'd as mod., N. L. R. B. v. Stackpole Carbon Co., 105 F. (2d) 167 (C. C. A. 3), cert. denied, 60 S. Ct. 142. U "We the undersigned have been informed by Max Feingold that the Independent Brassiere Workers of California had been objected to on the grounds that it is a Company Unit. In as much as we are never the less productive employees of the Hollywood Max- well Company we feel that we are a majority of it's workers and as the majority we do not desire to be represented by any group , but wish to be represented so that we may bargain collectively with the members of this unit . We now ask that The National Labor Relations Board assist us so that we may have an organization where by as the majority of the productive employees of The Hollywood Maxwell Company, we can bargain col- lectively with the management. "We revoke . . . any and all authorizations here to fore signed or directed by us to any other groups or unions , national or independent. We now place ourselves before The National Labor Relations Board as an unorganized and majority group, and ask that it's rights as accorded by law be now recognized." . 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and circulated by her and the rest of the Group committee at the suggestion of Feingold.12 Immediately afterward the Group was organized. No further steps were taken to dissolve the Brassiere Workers. The Group is unincorporated and has no constitution or bylaws.. After its formation, no general membership meetings were held, nor were any dues collected until about June 30, when the members w'ere- assessed to pay for legal representation at this proceeding 13 There is a governing committee of the Group, which consists of Sheldon,. Belmonte, Rose, and Mohr. These four employees, with others,. functioned as members of the "price committee" during the month of March 1939. It is significant that there was practically no change- in the personnel of this "price committee" from February 1939, when the Brassiere Workers had not yet been abandoned, to March 1939,. when the shift to the Group had already occurred. In fact, from its inception in October 1938, through March 1939, there was a con- stant nucleus of about three on the committee. Behnke, treasurer of the Brassiere Workers, remained treasurer of the Group. The Group's accounts were kept in the same book which contained the financial records of the Brassiere Workers. As already mentioned, on March 14 the respondent announced,. contrary to its agreement with the I. L. G. W. U. and the agents- of the Board, that it would not be bound by the results of the com- parison of evidence of union membership with its pay roll, a com- parison which it was informed had established that the I. L. G. W. U. represented a majority. At the same time it proposed, as the only- alternative it would deem satisfactory, that a consent election be- held, with the I. L. G. W. U. as the only organization on the ballot. It also declared its willingness to post a notice stating that it would not recognize the Brassiere Workers, or any similar organization. On March 16 the I. L. G. W. U. rejected the respondent's proposal' for the holding of a consent election. On March 20 the respondent, posted a notice in the plant which stated that the respondent had:. checked the names of the employees designating the Group as bar- gaining agent, and that, having found that a majority of the pro- duction workers had so designated the Group, it was granting- 'According to Linda Erickson , an employee at that time, Sheldon approached her- during the lunch hour at the plant and urged her to sign the petition by emphasizing- loyalty to "the Doctor" (Bowen ), and the fact that signing might insure her job security. 13 The meeting was held after the service of the complaint In this case upon the Group and the Brassiere Workers. Feingold explained the nature of the Board's proceedings. He added that he was too busy to handle the matter but that someone else in his office- could . At the hearing Arthur H. Lewis appeared for the Group and Fay Sheldon. Feingold also appeared and consented to be joined as co-counsel with him . The financial' records of the Group indicate that payment for these services was made to Feingold' through Lewis. HOLLYWOOD-MAXWELL COMPANY 657 exclusive recognition to that organization. About March 25 the members of the Group's governing committee presented a proposed contract to Bowen. On March 29 the I. L. G. W. U. protested the recognition of the Group, reasserted its claim to represent the ma- jority, and demanded that the respondent bargain with it. During a conference on April 3, devoted to this matter, Norris admitted to representatives of the I. L. G. W. U., in enumerating such "serious mistakes" of the respondent as the bribing of Busick, that "the Independent Union" was a "company union." 14 Watkins, attorney for the respondent, reiterated the respondent's willingness to enter into a consent election at any time. The I. L. G. W. U. again re- jected this offer. The next day the respondent refused, by letter, the I. L. G. W. U.'s demand for recognition. On the day following, April 5, the respondent concluded a 2-year exclusive recognition contract with the Group, covering wages, hours, and other conditions of employment: 'There had been only one conference, on April 1, at which there was any negotiation with respect to the provisions of this contract. One or two unsubstantial changes in the Group's draft, suggested by Norris, were agreed to by Feingold and the Group committee. As already noted, at a plant meeting during working hours on April 14, Norris addressed the employees, while the power was shut off, and explained the respondent's actions with regard to Busick, the I.' L. G. W. U., and the Group. He did not mention the respondent's agreement to have the Board check the I. L. G. W. U.'s evidence of membership against its pay roll for the purpose of ascertaining the majority representative, but emphasized its desire for a consent election. He asserted that the I. L. G. W. U. had "consistently refused to do other than make verbal assertions that they did represent the majority," and that the respondent negotiated a contract with the Group because that organization had willingly submitted evidence of majority representation. That speech, however, did not accurately disclose the facts with regard to the Group's proof of its majority. Sheldon's version is as foll'ow's : 15 A request for exclusive recognition of the Group, ac- companied by an executed copy of the March 1 petition to the Board, described above, was transmitted to Haddow. Haddow said she would refer the petition to Bowen. The management's answer then was, given in, the recognition notice of March 20., The respondent 14 On the basis 'of `the usages revealed by the record we understand this to mean that the organization which had been recognized by the respondent and which was deemed by the witness to be identical with the Brassiere workers was company dominated. 15 Although called to testify by the Board , ae an intervening party who had filed an answer denying the Board 's allegations with respect to this matter, she was a hostile witness. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made no demand on any member of the Group that the signatures on the petition be authenticated. At the time that the Group's committee presented to Bowen their proposed contract they reasserted their claim to a majority and referred him to the petition they had delivered to the management. The Group presented no other evidence of its right to represent a majority of the employees prior to the conclusion of the contract with the respondent. According to Bowen, a committee, of which Sheldon was a member, presented to him in person, before March 20, a list of signatures purporting to show a majority in their favor. Bowen admitted, after changing his testimony, that he proceeded no further with his investigation, that he accepted the word of the committee members.1° He told the committee that the list would have to be submitted to Norris, but that it looked bona fide to him. He thought he discussed the matter with Norris, although he was not sure. Norris' version is consistent with the other two in regard to the absence of any check on the authenticity of the dates or the signa- tures on the material presented to him. Both in his testimony and in his April 14 speech he dated his investigation prior to the con- tract of April 5. Nowhere did he definitely place it before the posting of the notice of March 20. The Group's evidence of majority was submitted to him by Feingold. It is most significant that Fein- gold first offered for that purpose the signatures on the petition for certification of the Brassiere Workers, dated September 1937, and designation slips dated about the middle of 1938, also a time when the Group was as yet nonexistent. Norris' only objection to this mate- rial was that it was not recent enough to indicate the present senti- ment of the employees. He accepted what appears to have been a copy of the March 1 petition to the -Board and checked its names against a list of only those employees whose status as production employees had been unquestioned in previous negotiations with the Union. Norris testified that he thereby became convinced of the Group's majority. To his knowledge the list was not first presented to 1o The following appears in the record as Bowen's answer to the queries of the Board's attorney : Q. At that time [when the petition was presented ] did you check the names on the petition? A. Yes. Q. Against the list of names of your productive employees? A. Yes. [The question was repeated.] A. Well, I think that was gone Into. I can't say I did it personally myself, but I believe I talked to the Committee that came out to see me, and I think they had a majority of something like two to one, and it looked that way from the amount of people we had employed. Q. You took their word for It? A. Yes. HOLLYWOOD-MAXWELL COMPANY 659 Bowen, although he testified that Bowen had instructed him to check and later accepted his conclusion. Comparison of the three versions casts doubt upon whether Bowen 17 conducted any inquiry at all into the Group's claims. At best, it did not consist in going beyond their assurances, and, conse- quently, we need not decide whether, in fact, he made any. Although Norris' version is substantially uncontroverted, it does not clearly establish any scrutiny of the Group's evidence before March 20, the date when they were given exclusive recognition. Moreover, even if such scrutiny preceded recognition, it was of the most meager type. No question of the genuineness of the Group's evidence was raised. In view of the context of events in which his investigation was conducted,"' of its slight nature, and of the impeachment of Norris' credibility,"" we cannot credit his statement that he became convinced of the Group's majority. Conclusions In the account given above, the continuity of the respondent's domi- nation of the United, the Brassiere Workers, and the Group is patent. Supervisory employees took the initiative in launching the United to head off the I. L. G. W. U.'s organizing drive. Foreman Murphy openly disparaged the I. L. G. W. U., paid for literature calling for an inside organization, and used his authority to assist in the forma- tion of the United. Woodyard and Ice, both supervisory employees, aided him in his efforts, some of which took place on the respond- ent's premises, and during working hours. Employees who sought to counteract this influence were discriminated against. If there can be any doubt about whether these supervisory employees were acting in the respondent's behalf, it is dispelled by the respondent's accept- ance and further cultivation of the fruits of their labor. Bowen and Norris attended meetings at the plant of the committee of the organi- zation which they had created. Bowen received assurances from them that the company union would persist. The respondent distributed benefits to its employees, at the United's request, while it withheld similar benefits from those followers of the I. L. G. W. U. who were striking in order to obtain them.20 That Busick should have sought, and that the respondent should have granted, permission for him to address those who seemingly represented its employees, points unmis- 17 For the Impeachment of the credibility of Bowen see Section III B 3, infra. Is See the conclusions which follow. 19 See Section III B 3, infra. 10 Cf. N. L. R. B. v. American Potash & Chemical Corp., 98 F. (2d) 488 (C. C. A. 9), aff'g Matter of American Potash & Chemical Corp. and Boram & Potash Workers Union No. 20131, 3 N. L. R. B. 140. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD takably to the respondent as the locus of actual control over the United's affairs. Bowen's warning to the committee members against being swayed by Busick's arguments for the I. L. G. W. U. was intended to perpetuate that control. We find that by interfering with and dominating, in the manner described in the preceding conclusions and through the acts found above, the formation and administration of the United, and by con- tributing support to it, the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. After the legitimacy of the United's parentage was doubted at conferences held at the Regional Office in 1937, Haddow and Bowen conferred with the United committee and laid down the policy that resulted in the re-baptism of their offspring. Thereafter the com- mittee obtained the advice of its attorney on how to re-form their organization. They then changed attorneys and had Feingold, the new attorney, form the corporation called the Brassiere Workers. The respondent paid members of the United for conferring with Feingold on the very question of the formation of the Brassiere Workers. There was a short period of time after the incorporation of the Brassiere Workers and the election of its officers, during which the United committee still functioned. Thus the Brassiere Workers emerged pursuant to the suggestion of, and with the direct financial aid of, the respondent, as well as through the immediate efforts of the committee of the first dominated organization. Cannon, the moving force in that group, became the secretary of the Brassiere Workers. Sheldon, an active member of the United, one who had urged its formation and who pleaded for its retention after the conclusion of the strike, became chairlady of the Brassiere Workers. Cannon, the other members of the United committee, and Sheldon, by reason of their identification with a dominated organization, were represen- tatives of the respondent.21 The Brassiere Workers then sought to become certified as the bar- gaining agent of the respondent's employees. When its petition was dismissed it became inactive and resumed activity only when it again attempted to displace the I. L. G. W. U. at the expiration of the con- tract of September 1938. The respondent bribed Busick to effect, at that time, an election which it thought the Brassiere Workers would win. Its bribes were intended to supplant the I. L. G. W. U. with the Brassiere Workers. 21 International Association of Machinists , Tool and Die . Makers Lodge No. 35, affiliated with I. A.' M. v. N. L. R. B., 110 F. (2d) 29 (App. D. C.), aff'g Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No. 459, 8 N. L. It. B. 621, cert. granted, 60 S. Ct. 721. HOLLYWOOD-MAXWELL COMPANY 661 The third stage in the metamorphosis of the inside organization at the respondent's plant occurred after the I. L. G. W. U. had requested the respondent to bargain and after the Brassiere Workers had been informed that it was a tainted group. Sheldon and other members of the Brassiere Workers petitioned the Board and the management for recognition as an independent organization and formed the Group. The connecting links between the Brassiere Workers and the Group are so strong and so many that the organizations, for all practical purposes, are identical. Sheldon, chairlady, and Behnke, treasurer, retained their former positions. Behnke even utilized the same book of accounts .that she previously had. Other members of the Group's governing committee had been officials of the Brassiere Workers. Feingold remained attorney. By offering to Norris documents of the Brassiere Workers as evidence of the Group's majority, Feingold underscored the singleness of the two organizations. This identity was maintained in the eyes of the employees not only by the retention of the Brassiere Workers' active personnel but by the language of the March 1 petition and the manner in which it was circulated. by Sheldon. The respondent did nothing to dissipate the continuity of its control. Instead it reinforced that control. In granting exclusive recognition to, and concluding a contract with, the Group, the respondent definitely favored the Group to the detriment of the I. L. G. W. U. The respondent contends that it recognized the Group because that organization furnished more recent, and "conclusive," evidence of majority. In fact, however, it insisted upon a consent election as a sine qua non for bargaining with the I. L. G. W. U., while it recognized and contracted with the Group upon a much less rigorous basis. In the first place, there is some doubt whether the respondent made any examination of the Group's evidence prior to recognizing it. Further, the respondent could not have decided that the Group's evidence was superior to that which had been submitted by the I. L. G. W. U. to the Regional Office in March 1939. The check of that evidence was conducted by repre- sentatives of the Board and there is nothing in the record which indi- cates that the respondent had any knowledge whatsoever of its quality before granting recognition to the Group. In addition, an examination of only the Group's evidence offered the respondent no assurance against overlapping of members in the Group and in the I. L. G. W. U. Moreover, it is difficult to believe that the respondent found a list of unauthenticated signatures of a suspect organization to be "conclusive" evidence. Finally, at the time it insisted that the I. L. G. W. U. submit to a consent election it had already received, according to Sheldon, the "conclusive" evidence of the Group. Sub- sequent to the recognition notice of March 20, the respondent renewed 283035-42-vol. 24-43 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its proposal that an election be held, while Norris admitted that the "independent" was a "company union." If the election proposals were made in good faith, and in an endeavor to ascertain the genuine majority, it appears that the Group's evidence did not dissipate that doubt. On the other hand, as we have concluded below'22 the evi- dence indicates that these proposals were attempts to put the I. L. G. W. U. to the test of an election in an atmosphere charged with the respondent's influence. Their place in the pattern of events rein- forces the view that the respondent was influenced by the desire to eliminate the I. L. G. W. U., rather than by a recognition of the merits of the Group's contentions; that the respondent used recogni- tion of, and the contract with, the Group as a shield against the I. L. G. W. U. When the I. L. G. W. U. declined to consent to the respondent's election proposals, the respondent first recognized the Group, on a flimsy showing, if any, of majority'23 and then, after renewing its election proposal to the I. L. G. W. U. without, success, concluded with the, Group a contract negotiated with comparative ease.24 At the time of recognition the Group had had an amorphous existence of not more than 20 days' duration,25 and was strongly identified with a tainted predecessor. Norris' speech of April 14, therefore, in so far as it embodied the theory that recognition was granted because the I. L. G. W. U..had withheld, and the Group advanced, satisfactory evidence of majority, misrepresented to the employees the true state of affairs. We find that, by the actions discussed in the above conclusions and in the preceding findings, the respondent has dominated and interfered with the formation and administration of the Brassiere Workers and the Group, and has contributed support to them, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. ra See Section III B 3. 23 Matter of Arma Engineering Company and Committee for Industrial Organization, 14 N. L. R. B. 736; Matter of Quality Art Novelty Co., Inc. and United Paper Workers, L. I. U. No. 292, 20 N. L. R. B. 817. 94 Cf. Hamilton-Brown Shoe Co. v. N. L. R. B., 104 F. (2d) 49 (C. C. A. 8), enf g as mod. Matter of Hamilton-Brown Shoe Co. and Local No. 125 United Shoe Workers of America, C. I. 0., 9 N. L. R. B. 1073 ; International Association of Machinists, Tool and Die Makers Lodge No. 35, affiliated with I. A. M. v. N. L. R. B., 110 F. (2d) 29 (App. D. C.), aff'g Matter of The Serrick Corporation and International Union, United Auto- mobile Workers of America , Local No. 459, 8 N. L. R. B. 621, cert. granted, 60 S. Ct. 721 ; N. L. R. B. v. National Motor Bearing Co., 105 F. (2d) 652 (C. C. A. 9), enf'g as mod. Matter of National Motor Bearing Co. and International Union United Automobile Workers of America, Local No. 76, 5 N. L. R. B. 409; N. L. R. B. v. Swift & Co., 106 F. (2d) 87 (C. C. A. 10) enf'g as mod. Matter of Swift & Co., and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 641, et al ., 7 N. L. R. B. 269. 25 Cf. Matter of Donnelly Garment Company and International Ladies' Garment Work- ers Union, 21 N. L. R. B. 164; Matter of United States Potash Company and Inter- national Union of Mine, Mill, and Smelter Workers, Carlsbad Potash Workers Union, Local 415, 10 N. L. R. B. 1248. HOLLYWOOD-MAXWELL COMPANY 663 B. The refusal to bargain collectively 1. The appropriate unit The I. L. G. W. U. admits to membership and desires an appro- priate unit composed of all workers employed in the production of garments at the respondent's Los Angeles plant, except mechanics, watchmen, or stockroom '211 shipping, maintenance, office, clerical, and supervisory employees. Since the history of collective bargaining at the respondent's plant has established this unit as the basis of the respondent's dealings with its employees'27 and the respondent and the I. L. G. W. U. are in substantial agreement upon it, we find that it at all times material herein constituted and that it now con- stitutes a unit appropriate for the purpose of collective bargaining, and that such unit insures to employees of the respondent the full benefit of their right to self-organization and collective bargaining and otherwise effectuates the policies of the Act. By stipulation between the respondent and the attorney for the Board, 69 employees on the pay roll for the period March 9 to 15, 1939,28 were included in the unit. There was disagreement between them only as to six others. The Group took no position. Hal Ayers 29 is in charge of the cutting room in the absence of Superintendent Murphy 30 from that place. Sometimes he exercises his authority to direct the cutters while Murphy is present. Ayers engages in cutting, along with seven other employees. His 'status is no more supervisory than that of Cora Stafford, who directs the work of the inspectors. Stafford has been stipulated to be within the unit. In accordance with this construction by the respondent and the attorney for the Board of the scope of the unit, we find Ayers to be a non-supervisory employee, and include him within the unit. Clayton Evans is listed on the pay roll as "stk. rm. man." His primary function is to fold goods and help keep the stock. He spends the majority of the day in filling requisitions for material. He also receives and disposes of returned merchandise, and helps take inventory. He cuts binding on an average of an hour or an 16 The stockroom is different from the "made up stockroom." 2, The respondent had an exclusive recognition contract with the I. L. G. W . IT from September 1937 to October 1 938. In negotiations with the I. L. G. W. U. and the Group, the respondent recognized this unit. 2' The stipulation included 70 employees listed on the pay roll of March 2 to 8, 1939. In all relevant respects , that pay roll is identical with that for March 9 to 15, 1939. But, despite the fact that Harry Weingarten's name appears on the latter pay roll, we concur in the Trial Examiner 's finding that he was discharged on March 8, 1939. We shall, therefore, not consider him as being within the unit after that date. 29 Listed on the respondent's pay roll as Hal Ayres. 80 Murphy is now superintendent of the Los Angeles plant. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hour and a half daily. Since his duties are primarily those of a stockroom clerk, he is not within the unit.31 Carroll Fernbaugh is listed on the pay roll as "shipping clerk." His primary function, at which he spends most of the day, is to wrap orders and prepare them for shipment. We find him to be a shipping employee and, therefore, excluded from the unit. Lester Green is listed on the pay roll as "material insp." He works in the stockroom and devotes most of his working time to ordering material and keeping inventory. He also fills requisitions for material to be fabricated by the production workers, folds ma- terial for the cutters, when necessary, and occasionally, with Evans, inspects material. We find that he does not engage in production work. We shall exclude him from the unit. Margaret Coloski and Alice Jones are designated on the pay roll as "fact. makeup." The respondent sends from its Los Angeles plant to its branches in other cities unfinished garments which are com- pleted at their destination. Any operation performed on such gar- ments is labeled "out of town" to distinguish it from the same type of operation performed on garments completed at the Los Angeles plant. The major portion of both Coloski's and Jones' work con- sists in ".out of town" splitting and trimming, respectively. Splitting is the assembling of the pieces that go to make up a garment, in order that they may be sewn. Trimming is the addition of the pieces used to trim the garment. Since these are production opera tions, no different from those which are performed by persons stipulated to be within the unit, we find these two employees likewise to be within the unit. We find that Clayton Evans, Carroll Fernbaugh, and Lester Green are to be excluded from, and that Hal Ayers, Margaret Coloski, and. Alice Jones are to be included in, the appropriate unit. 2. Representation by the I. L. G. W. U. of a majority in the appropriate unit On March 14, 1939, the date of the first of a series of acts found to constitute a refusal to bargain, the respondent employed a total of not more than 72 employees in the appropriate unit,82 while the I. L. G. W. U. represented not less than 38 of these employees.33 31 The record shows that during the life of the I . L. G. W. U.'s contract, which pro- vided for preferential hiring, and for compulsory union membership for all new, non- union employees , Evans, not a member of the I. L. G. W. U., was hired as a cutter but was shifted to the stockroom . This was done by the respondent to avoid the application of this provision of the agreement , which was taken to affect production workers only. 22 There were 69 employees stipulated to be within the appropriate unit. The Inclusion of Ayers, Coloski, and Jones brings that number to 72. sa The chief evidence of membership consisted of 42 signed application cards, which were, for. the most part, executed in 1937. Corresponding to 21 of these were signed HOLLYWOOD-MAXWELL COMPANY 665 We find that on March 14, 1939, and at all times thereafter, the I. L. G. W. U. was the duly designated representative of the majority of the employees in the appropriate unit, and, pursuant to Section 9 (a) of the Act, was the exclusive representative of all the employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 3." The refusal to bargain By letter of February 20, 1939, the I. L. G. W. U., claiming to represent a majority of the respondent's employees, requested the respondent to bargain collectively with it "in accordance with the provisions of the Wagner Labor Relations Law." On February 25 the I. L. G. W. U. received a letter from the respondent which stated that it would be pleased to negotiate if the I. L. G. W. U. represented a majority of the workers, but that before negotiating it would re- quire adequate proof of that fact. The letter suggested a meeting for affirmations of continuing intention to remain a member , dating from 1939, mostly during the end of June. We exclude from consideration the cards of George Cannon, Viola Scott, La Mont Stetzer, and Harry Weingarten. Stetzer and Weingarten were discharged on October 26, 1938, and on March 8, 1939, respectively. While the record does not clearly indicate the date, we find that by March 14 , 1939 , Cannon had made known the revocation of his authorization. Scott's revocation is discussed below. The Trial Ex- aminer did not admit in evidence the cards of Irene Oliver Connor, dated October 27; 1937, and of Louella Phillips , dated July 21, 1937, Board Exhibits 28U and 28FF, respec- tively. The signatures on these cards were not identified. According to I. L. G. W. U. organizer Millie Goldberg , Connor was a member at the time of the hearing, and had attended union meetings in January 1939. Only those who are members of the I. L. G. W. U., or have authorized it to represent them , attend union meetings . Goldberg also saw Phil- lips at union meetings on March 13 or 14, March 20, and March 29 , 1939. She last observed that union records listed Phillips as a member about the end of February 1939, and believed that she was a member early in March. We hereby admit these two cards in evidence and find the membership of Connor and Phillips satisfactorily demonstrated. The respondent argues that various petitions , revocations , and financial records of the Brassiere Workers and the Group impair the probative force of the designations of the I. L. G. W. U. We have found that these organizations were dominated- by the respond- ent. We cannot regard as the expression of untrammeled will any adherence which they might have obtained , and we consequently are obliged to give no weight to such evidence. Cf. International Association of Machinists, Tool and Die Makers Lodge No. 35, affiliated with I. A. M. v. N. L. R. B., 110 F. ( 2d) 29 (App. D. C.), aff'g Matter of The Serrick Corporation and International Union, United Automobile Workers of America Local No. 459, 8 N. L. R. B . 621, cert. granted , 60 S. Ct. 721 ; Matter of New Era Die Company and International Association of Machinists, Lodge 243 ( A. F. of L.), 19 N. L . R. B. 227. In this connection we must note Intervenor Exhibits 9A, 9B, 9C, and 9D , which are copies of two letters to the I . L. G. W. U. purporting to revoke union authorizations, accompanied by registered mail receipts . The Trial Examiner reserved ruling on their admission . While they were not very satisfactorily identified , we hereby admit them in evidence. The letters are identically worded and appear to be written on the same kind of stationery and with the same typewriter as the Group's March 1 petition. We need not consider the one signed by Lulu Ray Winchell, nee Brown, and Alice Jones, since they were not members of the I. L. G. _W. U .' Although the other , a revocation by Viola Scott, dated March 14, seems to have been inspired by the Group, and although her signature was not authenticated, we note that evidence of influence by the Group is slight, and that the signature appears to be the same as the one on her union applica- tion card. We shall not regard her membership on and after March 14 as sufficiently established. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this purpose. On February 27, Israel Feinberg, Pacific Coast repre- sentative of the I. L. G. W. U., and.Basil Feinberg, attorney for the I. L. G. W. U., met with Bowen and Norris. Israel Feinberg urged the respondent to contract with the I. L. G. W. U. Norris indicated that they would be willing to enter into contractual relations with the I. L. G. W. U. as sole bargaining agent if it were proved that the I. L. G. W. U. represented a majority of the employees. On February 28 a conference was held at the Board's Regional Office, in which Israel Feinberg, Alice Ingraham, I. L. G. W. U. organ- izer, Bowen, Norris, and representatives of the Board participated. Discussion centered about settlement of the dispute between the re- spondent and the I. L. G. W. U.34 Israel Feinberg and Ingraham testi- fied that Bowen and Norris agreed with them and with Board agents, first, that they would submit a pay-roll list to the Board's agents; second, that the Board's agents should check against these records evi- dence to be offered by the I. L. G. W. U. as to its membership; and, finally, that if those agents ascertained that the I. L. G. W. U. had a majority, the respondent would bargain with the I. L. G. W. U. as the exclusive representative of its employees. At the hearing Bowen testified that he did not remember that there had been any understand- ing with respect to the check. Norris testified that there had been no agreement on the matter. The credibility of his denial is impeached not only by the respondent's actions after having been notified that the results showed a majority for the I. L. G. W. U., as set forth below, but also by Norris' admissions. Norris admitted that he said the re- spondent would "cooperate" with the Board agents making the check; that he did submit to them a list of the respondent's employees; and that he was subsequently informed by them of the results of the check. It is extremely improbable that agents of the Board would have con- ducted the check unless they had the respondent's assurance of recog- nition. In addition, the credibility of both Bowen and Norris is weak- ened by their admissions concerning false statements made by them to representatives of the Board. In February 1939, on being ques- tioned by Board agents they denied that they had bribed Busick. Not until sometime thereafter, possibly as long as 12 days, according to Norris, did they confess their duplicity; these admissions were reiter- ated by them at the hearing. The Trial Examiner, who had an oppor- tunity to observe the demeanor of the witnesses, discredited Norris' denial. Upon this record we credit Ingraham and Israel Feinberg, and find that the respondent agreed to bargain with the I. L. G. W. U. as sole bargaining agent if, as a result of the pay-roll check made by the 8 By this time the charge and an amended charge in this proceeding had been filed by the I . L. G. W. U. HOLLYWOOD-MAXWELL COMPANY 667 Board's agents, it was disclosed that the I. L. G. W. U. represented a majority of the respondent's production employees. About March 1 or 2 both the I. L. G. W. U. and the respondent submitted their respective documents, in accordance with the agree- ment. About March 2 the parties were informed that the results of the check established an I. L. G. W. U. majority. Norris then with- drew as attorney for the respondent and announced to the representa- tives of the Board that a new attorney, Watkins, had been engaged, who would require several days to familiarize himself with the situation. On March 6 or 7 a Board agent advised the I. L. G. W. U. that Watkins had told him that the respondent would not be bound by the check. On March 14, at a conference with representatives of the I. L. G. W. U. and of the Board, Watkins himself informed them of this position. He proposed, as the respondent's only offer of settlement, a consent election with the I. L. G. W. U. as the sole organization on the ballot. The I. L. G. W. U., fearful of the effects of the respond- ent's intimidation and coercion upon its members, rejected this pro- posal on March 16.35 Although it does not appear that, at the conference of March 14, any mention was made of pending recogni- tion of the Group, on March 20 the respondent granted exclusive recognition to that organization, in the manner already described. On March 29 representatives of the I. L. G. W. U. presented to Bowen a letter asserting that they were the representatives of the majority, that recognition of the inside organization was illegal, and requesting that the respondent bargain with them. Bowen told them he would give them his answer after consulting Watkins. On April 3 the I. L. G. W. U. put forward the same contentions at a conference with the respondent, and again refused the offer of a consent election. $ The proposal provided that the I. L. G. W. U. could withdraw from the election If the respondent committed any discriminatory or prejudicial action. While the record is not entirely clear, it appears that a majority of the members of the I. L. G. W. U. were willing to accept the proposal , provided that they could withdraw if they "felt that intimidation continued ." Thereafter, representatives of the I. L. G. W. U. asked the Acting Regional Director whether the I. L. G. W. U. could withdraw from an election if, according to this subjective standard, there was any sort of intimidation. He replied that it was necessary to have a reasonable amount of assurance that the I . L. G. W. U. would go through with the election, if it agreed to one, and that the I. L. G. W. U. would have to produce substantial evidence of discrimination before it could withdraw. After further consultation with some members of the I. L. G. W. U., the union representatives decided that they would not consent to an election on that basis . What seems to have motivated them was concern over the continuing effects of the respondent 's past intimi- dation. Such effects are visible in Sheldon's tactics in circulating the March 1 petition, described in footnote 12, and in the fact that there is a significant overlapping of mem- bership In the I . L. G. W. U. and in the dominated organizations. Margaret Martin, for example, signed the March 1 petition of the Group, and an I. L. G. W. U. application card on the same day ; subsequently she paid part of the Group's special assessment. In fact, the respondent's proposal made no provision for dispelling these effects . It amounted to no more than an offer of an election in an atmosphere which, while the respondent might refrain from further coercion , was already charged in favor of the respondent. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By letter of April 4 the respondent rejected the I. L. G. W. U.'s demands. On April 5 the respondent concluded its 2-year contract with the Group as exclusive bargaining agent. From the above facts it is clear that the respondent has never bargained with the I. L. G. W. U. When the check to which it had agreed disclosed a majority for the I. L. G. W. U., and when it thereby became obligated to recognize and bargain with that organi- zation, it shifted attorneys and violated its pledge. As a further condition to bargaining with the I. L. G. W. U., the respondent then insisted upon a consent election in an atmosphere prejudicial to the I. L. G. W. U. When the I. L. G. W. U. refused to run the risk of elimination in this fashion, the respondent sought protection from its demands for bargaining rights in a facile recognition of, and conclusion of a 2-year contract with, the Group, an organiza- tion which was subject to its domination.36 In marked contrast with its treatment of the I. L. G. W. U., the respondent did not demand an election of the Group before bargaining with it. Such a course of action was clearly dominated not by any honest or reasonable doubt of the I. L. W. G. U.'s majority, but by a desire not to deal with the I. L. G. W. U. at all,37 and constituted a refusal to bargain. 8 We find that the respondent, on and at all times after March 14, 1939, refused to bargain collectively with the I: L. G. W. U. as the representative of its employees in respect to rates of pay, wages, and hours of employment, and that, by the above conduct, it interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The alleged discriminatory discharges The amended complaint alleges, and the respondent' s answer denies, that the respondent discharged Harry Weingarten, about March 3, 1939; laid off Irene Ellis, Dorothy Grant, Dorothy Nelson, and Lorraine Venable, in December 1938; and rehired Venable to a less desirable position at a reduced rate, because of their union membership and activity. The Trial Examiner found that none of these employees had been discriminated against by reason of their union activity and recommended that the complaint be dismissed as to them. The I. L. G. W. U. did not take exception to the Trial 81 See Section III A above. ar N. L. R. B. v. Remington Rand, Inc:. 94 F. (2d) 862 (C. C. A. 2), enfg Matter of Remington Rand, Inc. and Remington Rand Joint Protective Board of the District Coun- cil Office Equipment Workers, 2 N. L. R. B. 626. 88 Cf. N. L. R. B. v. National Motor Bearing Co., 105 F. (2d) 652 (C. C. A. 9), enfg as mod. Matter of National Motor Bearing Co . and International Union, United Automo- bile Workers of America, Local No. 76, 5 N. L. R. B. 409. HOLLYWOOD-MAXWELL COMPANY 669 Examiner's recommendations in regard to these complainants. We have examined the evidence with respect to their cases and concur in the Trial Examiner's findings. We shall dismiss the complaint as to them. The amended complaint alleges, and the respondent's answer denies, that the respondent discharged La Mont Stetzer about Octo- ber 26, 1938, because of union membership and activity. The Trial Examiner found that he was not discriminatorily discharged, and the I. L. G. W. U. took exception to this finding. Stetzer had been employed by the respondent as a cutter since 1935 and joined the I. L. G. W. U. in August 1937. At the time of the termination of his employment, he was the highest paid cutter and the only I. L. G. W. U. member in the cutting room. About June 15, 1938, Bowen told Stetzer that he could fire him for trying to get two of the cutters to "talk union." About the time of the expiration of the union contract on October 1, Stetzer on several occasions asked both James and Billy Willy to join the I. L. G. W. U. James in- formed Ayers, and Billy told Murphy, of Stetzer's activity. During the latter part of October 1938, at about 4: 30 p. m., the normal quitting time, Stetzer sought to take home some scraps- pieces of material which remain after the whole cloth has been cut. Some scraps are usable. Employees are only permitted to take home non-usable scraps. Bowen intercepted Stetzer while he was in the cutting room. According to Stetzer, he was bringing the scraps to be checked by Murphy, before taking them home. On two previous occasions Murphy had approved scraps for Stetzer. There is a con- flict as to whether Stetzer told Bowen he was going to Murphy when Bowen deprived him of the scraps. A large bundle of scraps was introduced at the hearing as those which Stetzer had attempted to secure. Stetzer disclaimed all but four bunches, and asserted that they contained scraps no larger than those usually approved by Murphy. Murphy denied that he had ever approved of any scraps as large as these. Some of those acknowledged by Stetzer are defi- nitely usable, and the evidence indicates that Stetzer should have known this. Murphy's approval, therefore, would not have exon- erated Stetzer in the least from his share of the blame for attempting to convert usable scraps to his own purposes. But Stetzer was not discharged for that reason. The record shows that he was dis- charged for refusing to apologize in writing for his action, a form of discipline not unusual with the respondent. We cannot say that the respondent-lacked justification for this discharge. We find that Stetzer was not discharged because of his union mem- bership and activity. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that' the respondent has dominated and interfered with the formation of the Brassiere Workers, and of the Group, and has contributed support to them. Their continued existence thwarts the purposes of the Act and would render ineffective a mere order to the respondent to cease and desist from engaging in unfair labor practices. In order to effectuate the policies of the Act and free the employees of the respondent 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 respondent to withdraw all recognition from the Brassiere Workers and the Group as the representatives of the re- spondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work, and to disestablish them as such representatives.39 Since the agreement between the respondent and the Group embodies recognition of the Group as such repre- sentative, and since the agreement represents the fruit of the re- spondent's unfair labor practices, and a device to perpetuate their effects, we will order the respondent specifically to cease and desist from giving effect to this or any other agreement it may have en- tered into with the Group in respect to rates of pay, wages, hours of employment, or other conditions of work.40 We have found that the respondent has refused to bargain col- lectively with the I. L. G. W. U. as the exclusive representative of 39 N. L. R. B. v. Pennsylvania Greyhound Lines , Inc., 303 U. S. 261, rev'g 91 F. (2d) 178 (C. C. A. 3) and aff'g Matter of Pennsylvania Greyhound Lines , Inc., at al. and Local Division No. 1063 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, 1 N. L. R. B. 1. 40 National Licorice Co. v. N. L. R. B ., 60 S. Ct. 569 , aff'g as mod. 104 F . (2d) 655 (C. C. A. 2), enf'g as mod. Matter of National Licorice Co. and Bakery and Confectionery Workers International Union of America, Local 405, Greater New York and Vicinity, 7 N. L. It. B. 537. HOLLYWOOD-MAXWELL COMPANY 671 its employees within the appropriate unit.. We shall order the re- spondent, upon request, to bargain collectively with I. L. G. W. U. We have found that the respondent did not discriminate against La Mont Stetzer, Harry Weingarten, Dorothy Grant, Irene Ellis, Dorothy Nelson, and Lorraine Venable, with regard to hire and tenure of employment. We shall, therefore, dismiss the complaint with respect to them. Upon the basis of the foregoing findings of fact and upon the entire record in this case, the Board makes the following : CONCLUSIONS OF LAW 1. International Ladies Garment Workers Union, Independent Brassiere Workers of California, Incorporated, and Independent Productive Group 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, and by contributing support to, Independent Brassiere Workers of California, Incorporated, and Independent Productive Group, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. The production employees of the respondent at its Los Angeles plant, excluding mechanics, watchmen, and stockroom, shipping, maintenance, office, clerical, and supervisory employees, at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9'(b) of the Act. 4. International Ladies Garment Workers Union was on March 14, 1939, and at all times thereafter has been the exclusive representative of all the employees in such unit for the purposes of collective bar- gaining, within the meaning of Section Q (a) of the Act. 5. By refusing, on or about March 14, 1939, and at all times there- after, to bargain collectively with International Ladies Garment Workers Union as the exclusive representative of the employees in such unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in. Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 8. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, with respect to La Mont 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stetzer, Harry Weingarten, Irene Ellis, Dorothy Grant, Dorothy Nelson, and Lorraine Venable. 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 respond- ent, Hollywood-Maxwell Company, Los Angeles, California, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the formation or administration of Independent Brassiere Workers of California, Incorporated, or Independent Productive Group, or any other labor organization of its employees, and from contributing any support to said organizations or to any other labor organization of its employees; (b) Recognizing Independent Brassiere Workers of California, In- corporated, or Independent Productive Group, as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work; (c) Giving effect to its agreement with Independent Productive Group, dated April 5, 1939, or to any other agreement which it may, have entered into with Independent Productive Group in respect to rates of pay, wages, hours of employment, or other conditions of work; (d) Refusing to bargain collectively with International Ladies Garment Workers Union as the exclusive representative of the pro- duction employees of the respondent at its Los Angeles plant, exclud- ing mechanics, watchmen, and stockroom, shipping, maintenance, office, clerical, and supervisory employees; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Independent Brassiere Work- ers of California, Incorporated, and Independent Productive Group, as the representative of any of its employees for the purpose of deal- ing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and com- HOLLYWOOD-MAXWELL COMPANY 673 pletely disestablish Independent Brassiere Workers of California, In- corporated, and Independent Productive Group, as such representative; (b) Upon request, bargain collectively with International Ladies Garment Workers Union as the exclusive representative of the pro- duction employees of the respondent at its Los Angeles plant, exclud- ing mechanics, watchmen, and stockroom, shipping, maintenance, office, clerical, and supervisory employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (c) Post immediately in conspicuous places at its plant, and main- tain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating : (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), (d), and (e) of this Order, and (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; (d) NotKy the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, as amended, be, and the same hereby is, dismissed in so far as it alleges, with regard to La Mont Stetzer, Harry Weingarten, Irene Ellis, Dorothy Grant, Dorothy Nelson, and Lorraine Venable, that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act.