Sun Tent-Lubbert Co.

111 In the Matter of SUN TENT-LUEBBERT COMPANY; CALIFORNIA CANVAS JOBBERS CLUB ; SOUTHERN CALIFORNIANS , INC. ; THE NEUTRAL THOUSANDS , INC.; G. L. HUFF AND CLAY C. RITTENHOUSE, DOING BUSINESS AS EMPLOYEES ADVISORY SERVICE; AND MERCHANTS AND MANUFACTURERS ASSOCIATION OF LOS ANGELES and TEXTILE WORKERS UNION OF AMERICA, LOCAL No. 99, C. I. 0. and INDEPENDENT CANVAS WORKERS UNION7 INC., PARTY TO THE CONTRACT - In the Matter of MELLUS BROTHERS &, COMPANY, INC.; CALIFORNIA CANVAS JOBBERS CLUB; SOUTHERN CALIFORNIANS, INC.; THE NEUTRAL THOUSANDS, INC.; G. L. HUFF AND CLAY C. RITTENHOUSE, DOING BUSINESS AS EMPLOYEES ADVISORY SERVICE; AND MERCHANTS AND MANUFACTURERS ASSOCIATION OF Los ANGELES and TEXTILE WORKERS UNION OF AMERICA, LOCAL No. 99, C. I. 0. and INDEPENDENT CANVAS WORKERS UNION, INC., PARTY TO THE CONTRACT In the Matter of DOWNIE BROTHERS, INC. ; CALIFORNIA CANVAS JOB- BERS CLUB ; SOUTHERN CALIFORNIANS, INC. ; THE NEUTRAL THOU- SANDS, INC. ; G. L. HUFF AND CLAY C. RITTENHOUSE, DOING BUSINESS AS EMPLOYEES ADVISORY SERVICE; AND MERCHANTS AND MANU FAm'URERS ASSOCIATION OF Los ANGELES and TEXTILE WORKERS UNION OF AMERICA, LOCAL No. 99, C. I. 0. and INDEPENDENT CANVAS WORKERS UNION, INC., PARTY TO THE CONTRACT In the Matter Of UNITED TENT AND AWNING COMPANY, LTD., CALI- FORNIA CANVAS JOBBERS CLUB; SOUTHERN CALIFORNIANS, INC.; THE NEUTRAL THOUSANDS, INC.; G. L. HUFF AND CLAY C. RITTENHOUSE, DOING BUSINESS AS EMPLOYEES ADVISORY SERVICE; AND MERCHANTS AND MANUFACTURERS ASSOCIATION OF Los ANGELES and UPHOLSTERERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL No. 15, A. F. L. and INDEPENDENT CANVAS WORKERS UNION, INC., PARTY TO THE CONTRACT Cases Nos. C-1693 to C-1696 inclusive-Decided November 29, 1941 Jurisdiction : canvas goods manufacturing industry. Unfair Labor Practices Company-Doni.inated Union: employers confronted with organization campaigns of an "outside" union sought advice and assistance of institutional respondents in defeating the attempts of their employees at self organization and collective bargaining, together with the institutional respondents and as an integral part of the institutional respondents' general scheme or plan to lend their 37 N L R B No. 15. 50 SUN TENT-LUEBBERT COMPANY 51 services to;employers in effectuating the "open shop" program throughout Southern California, employers dominated and interfered with the formation of the "inside" union by oftering their cooperation and support to facilitate its establishment, and with the aid of institutional respondents and pursuant to its established procedure, imposed upon the "inside organization" basic documents which disabled it from acting as the freely chosen representative of their employees-employers alone violated Section 8 (2) of the Act by the various forms of supervisory support accoidcd the "inside" organization, the solicitation of members and dues on company time and property, and the free and unhampered use of uu orking time for the conduct of the "inside" organiza- tion's affairs by its members generally Dr5Giinioiatwo2: lay-off of an employee of -one of the employers because of the employee's advocacy on behalf of the "outside" organization and his outspoken opposition to the "inside" organization, held discriminatory Remedial Orders: employers ordered to cease and desist from dominating and interfering with the administration of the "inside" organization and confeder- ating or conspiring with each other or with the institutional respondents or with any other individual or gi oup for similar unlawful purposes ; institutional respondents ordered to cease and desist from unfair labor practices engaged in and from the conduct which brought about the concerted violations; domi- nated organization ordered disestablished by employers, since it has not formally been dissolved as a corporate and legal entity, although it was appu•- entl.i abandoned by a vote of its membership; contract with dominated-organ ization abrogated; to prevent similar unfair labor practices by institutional respondents acting in the interest of other employers whom they have publicly and persistently invited to enlist their services in introducing above plan among their employees, Board orders them to cease and desist from in any other manner, severally, jointly, or in concert with other employers, inter- fering with the rights guaranteed to employees in Section 7 of the Act, and to notify all such persons to whom they have offered their illegal plan that they have in effect abandoned such plan ; back pay awarded discriminated laid-off employee. Definitions : institutional respondents held to be employers of employees of canvas companies within the meaning of Section 2 (2) of the Act, despite their con- tentions that they are so-called "civic" organizations, since by their partici- pating as agents of the canvas companies in the unlawful scheme pursuant to which an "inside" oiganization was formed, controlled, and supported, they acted "directly or indirectly" in the interest of the canvas companies Mr. David Sokol and Mr. William R. Walsh, for the Board. Mr. Harry K. Wolff, of San Francisco, Calif., for Sun Tent. Mr. Guy T. Graves, of Los Angeles, Calif., for Mellus. Howlett & MacLaren, by Mr. Elmer H. Howlett, of Los Angeles, Calif., for the canvas companies and the Club. Latham ee Watkinns, by Mr. Paul R. Watkins, of Los Angeles, Calif., for Southern Californians, T. N. T., and the Service. - Mr. H. W. Elliott and Mblr. C. R. Leslie, of Los Angeles, Calif., for M. & M. ' Mr. Frank S. Lopez, Jr., and Mr. R. B. Gatewood, of Los Angeles, C'alif., for the Textile Workers. .52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Charles L. Yost, of Los Angeles , Calif., for the Upholsterers. Miss Ida Klaus , of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Textile Work- ers Union of America, Local No. 99, C. I. 0., and by Upholsterers International Union of North America, Local No. 15, A. F. of L., herein called, respectively, the Textile Workers and the Upholster- ers, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-first Region (Los Angeles, California ) issued its complaint , dated September 26, 1939, against the following companies, organizations, and individuals, herein called the respondents : Sun Tent-Luebbert Company, herein called Sun 'Tent; Mellus Brothers and Company, Inc., herein called Mellus; Downie Brothers, Inc., herein called Downie; United Tent and Awn- ing Company, Ltd., herein called United;' California Canvas Job- bers Club, herein called the Club; Southern Californians, Inc., herein ,called Southern Californians; The Neutral Thousands, herein called T. N. T.; G. L. Huff and Clay C. Rittenhouse, doing business as Employees Advisory Service, herein called the Service; and Mer- chants and Manufacturers Association of Los Angeles, herein called M. & M.2 The complaint alleged that the respondents had engaged in and were engaging in unfair labor practices affecting commerce within -the meaning of Section 8 (1), (2), and (3) and Section .2 (6) and (7) of the National Labor Relations. Act, 49 Stat 449, herein called -the Act. Copies of the amended charges and the complaint, accom- panied by notice of hearing, were duly served upon the respondents, the Textile Workers, the Upholsterers, and upon Independent Canvas 'These four respondents are herein referred to collectively as the canvas companies and the iemammg respondents are heiem refereed to collectively as the institutional -respondents 2 By order of the Boai d issued on September 25, 1939, and amended on October 4. 1939, pursuant to Article If, Section 36 (b) of National Labor Relations Board Rules and Regula- tions-Series 2, the tour proceedings were consolidated for purposes of hearing "and fur all other purposes " The icspondents contended at the hearing and argued in their briefs that this order was prejudicial in that it deprived them of an opportunity to segregate the issues relating to each of them and to present evidence in support of their respective defenses Since the charges related to a single set of facts involving all the respondents of derly pro- cedure required a consolidation of the cases and the issuance of a single complaint. we believe that the complaint and the other pleadings adequately apprised the respondents of the nature of the issues litigated and that they were afforded a fair opportunity to prenaie ,their respective cases and to present evidence. SUN TENT-LUEBBERT COMPANY .53 Workers Union, Inc., herein called the Independent, alleged in 'the complaint to be company-dominated. The complaint alleged, in substance, (1) that the institutional re- spondents are employers within the meaning of Section 2 (2) of the Act; (2) that Southern Californians, T. N. T., and the Service engaged in numerous activities for and on behalf of all the respond- ents, designed to interfere with the rights of employees to organ- ize and bargain collectively; (3) that M. & M., by various specified acts, engaged conduct calculated to interfere with, restrain, and coerce the employees of the canvas companies in the exercise of their rights under the Act; (4) that all the respondents, "acting together," on or about December 2, 1937, and thereafter, dominated and inter- fered with the formation and administration of the Independent, contributed support to it, and unlawfully entered into a contract with it in respect to rates of pay, wages, hours of employment, and other conditions of employment; (5) that all the respondents, prior to and since on-or about December 2,1937, have participated in "a plan of interference with the self-organization of their employees and with their freedom of choice of representatives for collective bargaining" by engaging in certain specified conduct designed to influence and coerce the employees of the canvas companies into joining and assist- ing the Independent and against becoming members of labor organ- izations affiliated with the American Federation of Labor or the Congress of Industrial Organizations, particularly the Upholsterers and the Textile Workers; and (6) that all the respondents dis- criminated against a named employee of Sun Tent and against three named employees of United with respect to tenure of employment and terms and conditions of employment, thereby discouraging mem- bership in the Textile Workers and the Upholsterers .3 On October 9, 1939, Southern Californians filed its answer to the complaint, setting forth the principles pursuant to which it was or- ganized and has been operating, admitting that it had from time 'o time contributed substantial scans of money to T. N. T. but denying the exercise of any control over that organization, admitting that it formed and has been financing the Service, and denying all other ma- terial allegations of the complaint relating to it. On October 10, 1939, T. N. T. and the Service filed separate answers to the complaint, the former admitting the receipt of financial assistance from Southern 3 On January 31, 1940, the Board approved a "Compromise Agreement Per Settlement" entered into by United, the Upholsterers, and counsel for the Board with respect to the three employees of United and directed that such "Compromise Agreement For Settlement" be made a part of the'record in these proceedings. Thereafter, on February 14, 1940, the Board issued its Decision and Order in that portion of the case. Sun Tent-Luebbert, et al., 20 N. L R B. 427. The allegations with respect to these three employees will consequently not be considered herein. 433257-42-vor, 37 54. DECISIONS OF NATIONAL LABOR RELATIONS BOARD Californians and the latter admitting that it had been organized and was being supported by Southern Californians but each denying all other material allegations of the complaint relating to it. On the same day, Al. & M. filed its answer, denying all material charges of the complaint relating to it. At various times thereafter, each of the other respondents filed its separate answer, denying all material avermeflts of the complaint relating to it. Clay C. Rittenhouse filed a separate answer in his own behalf and as a member of the Service, admitting all allegations of the complaint as to his activities except three subsidiary charges. Pursuant to notice, a hearing on the complaint was held on various days from October 16, 1939, to June 3, 1940, at Los Angeles, California, before Howard Myers, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and all the respondents were rep- resented by counsel and participated in the hearing. The Textile workers and the Upholsterers were represented by their business rep- resentatives and participated in the hearing. The Independent did not appear. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the commencement of the hearing, all respondents save Al. & M. moved for the filing of a bill of particulars by counsel for the Board with respect to certain specified paragraphs of the complaint; the motions were granted in some respect and were withdrawn as to other items. In addition, each respondent moved to segregate its case from all the other cases and to strike from the complaint all allegations as to the other respondents. The motions were denied. At the close of the Board's case, and again at the close of the entire case, the respond- ents moved to strike certain evidence from the record as immaterial and incompetent and to dismiss the complaint as to each of them for misjoinder of causes of action, for lack of proof, and for want of jurisdiction. The Trial Examiner reserved decision on all these mo- tions except that relating to the testimony of one witness, which he ordered stricken from the record. In his Intermediate Report, the Trial Examiner denied the motions in all other respects. Various rulings were made by the Trial Examiner during the course of the hearing on other motions and on objections to the admission of evi- dence. The Board has reviewed all rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings made at the hearing and in the intermediate Report are hereby affirmed. Upon the conclusion of the hearing, opportunity for oral argument before the Trial Examiner and for the filing of a brief for his con- SUN TENT-LUEBBERT COMPANY 55 sideration was afforded all parties. Counsel for Al. & M., Sun Tent, Downie, and United argued orally before the Trial Examiner but none of the parties availed itself of the opportunity to file briefs. On September 26, 1940, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, in which he found that all the respondents except the Club had engaged in unfair labor practices and recommended that such respondents cease and *desist therefrom and take certain affirmative action deeined nec- essary to effectuate the policies of the Act. With respect to the Club, lie found that the evidence was insufficient to establish its participation in any of the acts with which the other respondents had been charged and recommended that the complaint be dismissed as to it. There- after all respondents but the Club filed exceptions to the, Intermediate Report, and the canvas companies,. Southern Californians, and Al. & Al. submitted supporting briefs. On August 4, 1941, pursuant to notice,' a hearing was held before the` Board at Washington, D. C., for the purpose of oral argument. M. & Al. was represented by'coun- sel and participated in the hearing. The other parties did not appear. The Board has considered the exceptions to the Intermediate Re- port and the briefs filed in support thereof and, insofar, as the excep- tions are inconsistent with the findings, conclusions; and order: set, forth below, finds no merit in them. Upon the entire record in the case, the Board makes the, following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Sean Tent is a California corporation, having its principal office and place-of.husiness at San Francisco; California. 'It owiis and operates a plant at Los Angeles; California, where it'is engaged in the manu- facture, sale, and distribution of tents, tarpaulins, bags, canvvas goods, and outdoor garden furniture. During the year 1938, in connection with the operations at its Los Angeles plant, the respondent Sun Tent- purchased raw materials consisting of cotton, thread, burlap, hard- ware, metal frames, and paint amounting in value to approximately $242,100, of which $136,765 represented purchases originating outside the State. For the same period, the total sales of products of the Los Angeles plant amounted in value to in excess of $338,000, about 18 per cent of which was derived from sales made to purchasers outside the State. These proceedings are concerned with the activities of tlhe respondent Sun Tent at its Los Angeles plant. Mellus is a California corporation', having its sole place of business at Los Angeles, California, where it is engaged in the manufacture, sale, and distribution of tents, tarpaulins , bags, gliders, lawn swings, 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD umbrellas, and outdoor furniture. During the year 1938, it purchased raw materials consisting of cotton fabrics, thread, kapok, burlap, hardware, metal chains, glider frames, lawn swing frames, chairs, and tables, and paint and lumber valued at $392,283.25, about 45 per cent of which represented purchases originating outside the State. During the same year, its total sales amounted in value to $543,014.25, of which 9 per cent was derived from sales made to purchasers outside the State. Downie is a California corporation with its sole place of business at Los Angeles, California, where it.is engaged in the manufacture, sale, and distribution of canvas goods, hammocks, and umbrellas. During the year 1938, it purchased raw materials consisting of canvas, rope, thread, burlap, wood frames, and hardware amounting in value to $154,720.28, of which $55,456.25 represented shipments from points outside the State. Its total sales during the year 1938 amounted in value to $277,379.23, of which amount $7,287.16 was derived from sales made outside the State. United is a California corporation having its sole place of busi- ness at Los Angeles, California, where it is engaged in the manu- facture, sale, and distribution of tents, tarpaulins, bags, canvas goods, and outdoor and garden furniture. Its purchases of raw materials during the year 1938 consisted of cotton fabric, thread, burlap, hard- ware, metal frames, paints, and lumber and amounted in value to $137,004.92, of which $100,913.44 represented purchases made outside the State. Its total sales for the same year amounted in value to $194,937.75, of which amount $3,500 was derived from sales to purchasers outside the State. Sun Tent, Mellus, Downie, and United are the four largest canvas goods manufacturers in Los Angeles. California Canvas Jobbers Club, organized in 1934, in an unincor- porated association admitting to membership the canvas companies and other canvas manufacturers in Los Angeles, California. It functions primarily as an agency for arranging pool purchasing of raw materials for its members and meets regularly for this purpose and to discuss business conditions in the canvas industry. Southern Californians is a non-profit corporation, existing since October 23, 1937, by virtue of the laws of California. Its member- ship is limited to "persons, firms and corporations, residents of or qualified to do business in, or located, or interested in the State of California." It offers two types of membership, "institutional" and "individual." The former is available to employers of other than domestic or household labor and its dues incident in 1937 and 1938 was calculated on the basis of 50 cents per month per employee of such member. The latter is issued to individuals and requires the payment of an initiation fee of $100. Applicants for membership SUN TENT-LUEBBERT COMPANY 57 expressly declare a belief in the objectives of Southern Californians and pledge themselves to comply with and be bound by its articles of incorporation and bylaws. At the time of the hearing, it was com- posed of approximately 440 institutional members and 50 individual members, representing together virtually every type of industry and business in Southern California. The articles of incorporation of Southern Californians recite that it was formed to attain these objectives, among others : "to improve, stimulate and increase the volume of business and trade in Southern California" by such means as may serve to attract "new business enter- prise";-"to cooperate in connection with the consideration of all social and economic movements"; and to contribute from its funds "such sums of money . . . as it may deem proper under all the circum- stances involved." In its answer to the complaint, Southern Californians alleged that it "has lived up" to its Declaration of Principles and that it has "in good faith observed them in carrying on all its activities." T. N. T. was incorporated on October 2, 1937, as a non-profit mem- bership corporation of California "exclusively for educational pur- poses." Membership in T. N. T. is open only to women, requires no dues payments, and obligates those to whom it is extended to pledge support of "the Industrial Peace Crusade of the Neutral Thousands to safeguard the welfare of California women and children and to protect the American Home." Its bylaws provide that "it will seek to demonstrate the futility and waste of industrial strikes in which the public and the families of the workers always lose." The extent of T. N. T.'s actual membership, if any, was not estab- lished at the hearing. Practically all its financial requirements were met by Southern Californians until March 15, 1939, when it became inactive. The Service was formed by Southern Californians on about April 1, 1939, as a partnership consisting of G. L. Huff and Clay G. Pitten- house to carry on some aspects of the work previously done by T. N. T. It is- wholly supported by, and operates under the supervision and control of, Southern Californians. In its answer, Southern Cali- fornians averred that the function of the Service is "to advise em- ployees with respect to their rights under the law and to aid them in social, educational and related activities." M. d H. was incorporated in 1896 under the laws of California "to foster and encourage commerce, to stimulate manufactures, and to promote the business interests of Los Angeles City and County and the country tributary thereto" and for other purposes relating to the welfare of business and industry in that area. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It admits to regular membership "any person, firm, association or corporation doing a merchandising, manufacturing, banking, profes- sional or other business requiring employment of unskilled, skilled, or professional labor." Associate membership is open to "any person, firm or corporation engaged in the pursuit of any profession or calling" other than those specified as requisites for regular membership. The dues of regular members are calculated on the basis of 50 cents per year per employee, with a minimum per year of $24. The extent of M. & M.'s membership was not revealed at the hearing. II. THE ORGANIZATIONS INVOLVED Textile Workers Union of America, Local No. 99, affiliated with the Congress of Industrial Organizations, and Upholsterers International Union of North America, Local No. 15, affiliated with the American Federation of Labor, are labor organizations admitting to membership employees of Sun Tent, Mellus, Downie, and United. Independent Canvas Workers Union, Inc., is an unaffiliated labor organization admitting to membership employees of Sun Tent, Mellus, Downie, and United. III. THE UNFAIR LABOR PRACTICES A. Domination and support of the Independent 1. Events leading to the emergence and recognition of the Independent Attempts to unionize the employees of the canvas companies were made initially early in 1937, when the Textile Workers and the Uphol- sterers launched rival organizing campaigns, which became active and sustained by the fall of that year. In•,about August 1937, a repre- sentative of the Committee for Industrial Organization, as it was then called, being herein referred to as the C. I. 0., apprised Joseph S. Kirschberg, vice,president of Sun Tent acid president of the Club, of the state of organization among the employees of Sun Tent and of the intention of the Textile Workers to open bargaining negotia- tions. At Kirschberg's invitation to meet the other members of the canvas industry, the C. I. O. representative addressed the August meeting of the Club, attended by representatives of the canvas com- panies and other members, on the organizational plans of the Textile Workers for the canvas industry. Thereafter both the Textile Workers and the Upholsterers distributed leaflets outside the plants of the canvas companies and proceeded to enlist members from among their employees. All four employers were aware of the efforts of both unions. At Sun Tent, Kirschberg collected and preserved large num- bers of pamphlets disseminated by both unions at that time. At SUN TENT-LUEBBERT COMPANY 59 United, representatives of the Upholsterers called on William E. Harvey, president, informed him of the progress of the campaign, and received assurance of his cooperation in the event of their enroll- ment of a majority of his employees. Aside from the showing that the Textile Workers had, by the end of November, secured 20 members at Sun Tent, the success of the unions is not indicated numerically in the record. Early in November and in the midst of the union campaigns, E. C. Everson, factory superintendent at Mellus, informed David C. Grif- fith, Evelyn McCullough, and Ben Masdeo, employees from various departments in the plant, of their appointninent to a committee to form an "independent union" and of his plan to, have them meet "some men . . . who have had experience in organizing and who will hell) you to form your -union." Griffith was the oldest employee in point of service in the cutting department and had been in the employ of Mellus about 7 years.' A week or 10 days later, the com- mittee and 2 or 3 employees from each of -the other canvas companies met at noon in the chair department of Mellus. The 3 employees present on behalf of United and at least one of those representing each of the other canvas companies performed supervisory functions at their respective plants. As the employees were assembling for the meeting, Everson introduced to them as "organizers" two indi- viduals named Clay C. Rittenhouse and Glancy Huff. The meeting was called to order by Rittenhouse, who, after stating that his pur- pose in attending was to advise the group on how to form an "inde- pendent" union, launched into a history of his experience in forming and guiding another "independent" union, a discourse on the advan- tages to be gained from membership in an'unaffihated labor "organi- zation, and an exposition of the evils of membership in the C. I. O. He then asked the group to consider the question of forming an "independent" and suggested the selection of a committee to meet with him for advice and assistance concerning the preliminary steps to be taken. Huff also addressed the group and reviewed the ex- perience of both men in assisting other employees in the organization of successful "independent" unions. The remainder of the meeting was devoted to questions from the employees, some of whom asked whether the proposed organization would correct the disparity of wages in the four plants. Rittenhouse replied that he thought that such result could be obtained through a contract with an "independ- ent" union. The employees thereupon returned to their respective plants. Although they had spent an hour and a half of their working time at the meeting, no deductions were made from their salaries for that absence. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About a week later another meeting, attended by about 25 employees and supervisors, was held after hours in the Me11us chair department. This time Rittenhouse, again accompanied by Huff, informed the employees that he had discussed the question of wage differentials with "the proper people" and that he thought that the matter could be adjusted through an "independent" union. When the employees indicated their satisfaction with that aspect of the probable achieve- ments of the proposed organization, Rittenhouse again suggested the selection of a committee to handle, with his guidance, the problem of incorporation and offered to furnish membership application cards, the necessary bylaws, and free meeting facilities. On about December 5, 1937, the committee previously appointed by Everson met for two hours without loss of pay at T. N. T. head- quarters with William T. Abbott, office manager of T. N. T., and with Rittenhouse and Huff and explored the preliminary details of organization. After discussing with the committee the advisability of incorporation, Rittenhouse announced to them that he had-already arranged for the handling of the legal aspects of organization; there- upon, he accompanied the committee to the office of one Harry Alkow, an attorney. The committee retained Alkow to prepare the necessary articles of incorporation and bylaws. Three days later, Alkow filed with the Secretary of State of California articles of incorporation, signed by the committee as the "Board of Representatives," and the Independent officially came into existence as a non-profit corporation empowered to perform the usual functions incident to that type of corporate entity and established for the stated purpose of providing an opportunity for employees to deal with their employers "jointly or otherwise" concerning wages, hours, and other conditions of em- ployment, promoting the well-being and happiness of its members through social, recreational, and welfare pursuits, establishing "mutual confidence and understanding" between employees and their em- ployers, entering into contracts to secure "the exclusive employment by management" of its members, and participating in the adjustment of disputes between its members and their employers. The bylaws, adopted by the Independent as prepared by Alkow, merely provided for the manner of government of the Independent. Neither of these basic documents contained any provision relating to eligibility for membership. While the Independent was being incorporated and for several days thereafter, the committee and those present at the first meeting in the chair department devoted a great deal of time, and on one oc- casion an entire working day, to the solicitation of members at the canvas companies during hours, application cards having been sup- plied by Rittenhouse or Huff. At Mellus, Everson and other super- SUN TENT-LUEBBERT COMPANY • 61 visory officials facilitated the work of the committee by soliciting- employees directly and turning over their signed cards to the com- mittee. At United, an employee who had been told by her imme diate superior that membership in the Upholsterers would result in a closing of the department in which she worked, was handed an appli- nation card by the supervisor in charge of the shipping department and was later asked .to sign it by the overseer under whom she worked, the overseer stating that "he was in a hurry to get the appli- cation cards in and get the money" needed by the Independent to defray printing costs. At Sun Tent, both the head cutter and the forelady in charge of the power machine operators told an employee that she had "better sign up" if she wanted to continue working. Employees who collected dues and initiation fees enjoyed similar freedom and the same degree of cooperation by supervisors. In some instances, employees who were deemed by Griffith or declared by Mellus officials to be ineligible for membership because of the super- visory or other character of their work, nevertheless made financial contributions to the Independent to help it-"get started." Pursuant to notices posted on the time clocks at the canvas com- panies, the first meeting of the Independent was held at T. N. T. headquarters early in December. At Sun Tent, the notice announcing the meeting asked employees to "be there or else * * *." At United, the notice appeared on a bulletin board thereafter used ex- ,elusively for the posting of Independent notices. The meeting was devoted to the election of officers, to a congratulatory speech by Rittenhouse, and to a general exploratory interchange of ideas on the terms of a proposed contract to be submitted to the canvas com- panies. Griffith was elected president, supervisory employees from United and Sun Tent were elected vice president and secretary, respectively, and a Downie employee was elected treasurer. There- after, Rittenhouse terminated his connection with the Independent, and Huff assumed the dual role of "business agent" for the Inde- pendent and "impartial party" for both the employers and the Independent. The first matter with which the Independent concerned itself after its affairs had been turned over to Huff was the submission to the employers of a proposed contract as to wages. hours, and working con- ditions. Terms were discussed at meetings in late December and early .January, and Huff incorporated the decisions reached and provisions which he independently deemed essential in a draft of an agreement. On January 6,,, 1938, Griffith sent the officials of each of the canvas companies a letter, drafted by Huff and typed by a Mellus stenographer in her office at the plant during working hours, requesting their attendance at a meeting at T. N. T. offices, at which the Independent- 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would present a contract "that we hope will meet with your ap- proval." Accordingly on January 11, representatives of the canvas companies met with officers of the Independent at T. N. T. offices. Griffith opened the negotiations with the announcement that the Independent represented a majority of the employees at each of the canvas companies. Although it is not clear from the record that the Independent had at that time been designated by a majority of the employees at each or all of the plants, the employer representa- tives did not require Griffith to 'support his claim. The contract prepared by Huff was then discussed, and the employers indicated their objections to the omission of piece work, adherence to seniority, minimum wage rates, and other terms which the Independent mem- bers considered vital. No agreement was reached at that conference. The employers thereafter presented counterproposals to Huff, which the Independent members discussed and considered at their separate meetings, indicating their disapproval of those which were in fact a rejection of their original demands. After several conferences, the canvas companies and the Independent on or about February 7, 1938, consummated an agreement which was to remain in effect for one year. The minutes of the Independent meeting of February 22, re- port that Griffith read "the contract which,was signed by the several employers." There is no record of approval or ratification by the membership. During conferences and at their meetings, the em- ployees had relied heavily on the counsel and assistant of Huff, as most of them and- their officers were without previous experience in collective bargaining. The contract as executed resulted in a uniformity of wage rates and of other conditions of employment for all the canvas companies. It differed in the following important respects from the draft pre- pared by Huff and submitted on behalf of the employees at the first and later conferences : Piece-work scales, which the employees wanted eliminated entirely as a method of wage determination, were, never- theless, to be established at the discretion of the canvas companies for all employees; maximum hours were higher than those requested by the employees; the schedule of minimum wages and the rate for overtime were lower than those appearing in the first draft; the request of the Independent for holidays with pay was not granted. For Mellus and Downie employees, who had prior to the consum- mation of the contract enjoyed higher rates of pay than the eiiiployees of the other canvas companies and had been paid for holidays, the contract resulted in a higher overtime rate but brought about a loss of pay for holidays, no change in wage rates for most employees, and a reduction in salary for some. For those employed by Sun Tent and United the contract yielded an increase in their wage rate SUN TENT-LUEBBERT COMPANY 63 equal to the. difference between their former rate and that already prevailing at the other two canvas companies. Other terms incorpo- rated in the contract had already been operative at some of the plants; hence their inclusion merely crystallized the status quo for some employees. During the first year of its existence, the Independent met regularly 'without cost at the offices of T. N. T. under the guidance of Huff, who prepared the minute book and dues records and directed the course of the meetings. Notices of meetings were posted on the time clocks at the four plants and dues were collected during working hours. As revealed by the minutes of its meetings, the Independent concerned itself principally with social and recreational functions arranged by Huff and T. N. T., and only on two occasions considered questions relating to working conditions generally or arising under the contract. Some of the provisions of the contract were in fact never complied with, as no machinery for the handling of grievances was made available to the Independent either in the basic documents governing its operations or in the contract, and the Independent had expressly disabled itself under the contract from resorting to the strike weapon. On a few occasions, employees who considered that. they had been unjustly treated appealed to Huff, who interceded on their behalf with the canvas companies. Two sections of the con- tra,ct were, however, assiduously accorded more than literal interpre- tation by the canvas companies : Paragraph 2. provided that all employees hired after the date of the contract would apply for member- ship in the Independent within 15 days from the date of hiring. Paragraph 16 provided that "whenever practical, an employer need- ing help shall give preference to members of the I. G. W. -U. [the Independent] in good standing. In practice these provisions were relied upon by supervisors to compel persons already in the employ of the canvas companies as of the date of the contract to join the, Independent as a condition of their continued' employment.4 More- over, although the contract was silent on the subject of how vacancies were to be filled, the canvas companies called upon Huff at T. N.,T. to supply them with new employees. In, addition to advising and assisting the Independent as to its conduct and operations, Huff personally assumed the function of protecting the Independent from inroads which the Textile Workers and the Upholsterers were attempting to make among its members. In April 1938, Huff assembled' the United employees on the third 4 Moreover , the canvas companies required Huff to solicit new employees for membership in the Independent . Thus, by letter of June 8, 1938 , Downie submitted to Huff at T. N. T. the names of employees "who aie now eligible for membership" and requested him "to take the necessary steps to interview these parties and advise us when these individuals take out'their Union memberships ." The letter closed .with thanks "for your cooperation in this matter 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD floor of the plant during working hours and told them that there were some "rats" in the factory who were ready "to stab him in the back" and that he wanted it clearly understood that the Independent maintained a closed shop and that any employee who belonged to any other, labor organization would be discharged. In November 1938, when the Textile Workers exerted considerable effort to enlist employees at Sun Tent, Huff called two meetings of those employees on company time and property and urged them to remain in the Independent, assuring them that the Independent would in its second contract parallel any working conditions which the Textile Workers could obtain for them. In January 1939, as the term of the existing contract was drawing to a close, Huff presented to Griffith a draft of a second contract, which was read to the membership of the Independent. Approval of the draft was deferred because of, the absence from the meeting of a majority of the members. On February 1, 1939, the canvas companies and representatives of the Independent executed a second agreement, which was in fact merely a renewal of the first contract and was to remain in effect until October 1, 1940, and then to be automatically renewed from year to year unless written notice of intention to modify or change was given by either party. It is not clear whether any negotiations were had between the parties prior to the signing of the new agreement. Moreover, the minutes of the Independent do not show any approval or ratification of the agree- ment by the membership. . Thereafter, the Independent continued to operate under the aegis of Huff until May 16, 1939, when a vote of abandonment was taken by the membership, who had become dissatisfied with the kind of representation available to them through the Independent. The Independent still exists, however, as a legal entity, for no certificate of its dissolution has been filed in accordance with the laws of California. There is no conflict in the evidence as to the foregoing outline of events. Except as otherwise indicated, it is based on the testimony of Griffith and other employees of the canvas' companies, as well as on the testimony of Rittenhouse and Huff and on T. N. T.'s records, all of which sources we credit in the respects heretofore related, as did the Trial Examiner. 2. Connection of the canvas companies, T. N. T., and M. & M. with the Independent (a) Testimony of Rittenhouse and Huff Rittenhouse testified as follows concerning his first contacts with the canvas companies and his participation in the events which led SUN TENT-LUEBBERT COMPANY 65 to the organization of the Independent : In November 1937, shortly after he and Huff had joined T. N. T.'s staff as "field organizers," Bessie A. Ochs, general director of T. N. T., introduced him to one Ryerson of the industrial relations department of Al. & Al. A few days later, Ryerson informed Rittenhouse end Huff, in the presence of William T. Abbott, office manager of T. N. T., that he was working with the canvas industry to defeat a union drive and requested both men to establish, if possible, a single "independent" union for the entire industry. Ryerson submitted to Rittenhouse several lists of employees of the canvas companies and directed him to communicate with Everson and other named employees whom he characterized as dependable. Thereupon Rittenhouse and Huff called on Everson at his home and stated- that Ryerson of Al. & M. had sent them to see him. Everson replied that lie knew Ryerson, and the conversa- tion turned to the establishment of one "independent" union for the entire industry. At the outset, Everson expressed concern about the possible demands which the Textile Workers or the Upholsterers might present to Mellus and stated that lie therefore considered an industry-wide "independent" the only means of combat. The chief obstacle envisaged by Everson to the formation of such an organiza- tion was the possible 'opposition of some of the canvas companies to an equalization of wage rates for all four plants. The conference ended with the understanding that Everson would consult the officials of the other canvas companies' on the question of the projected organization and on the collateral issue of wage rates and would inform Rittenhouse and Huff of the results. Pursuant to instructions from Ryerson, Rittenhouse reported to him the details of the conference with Everson, evoking the state- ment from Ryerson that he would attempt to induct the dissident employers to agree to a uniform wage scale. Several days later, Ryerson assured Rittenhouse concerning the canvas companies that as quickly as the organization was set up and completed, why, they would get together and adjust the differences" in wage schedules. On .the day of the first meeting in the Mellus chair department, in which Rittenhouse and Huff participated to the extent already de= scribed, Everson telephoned Rittenhouse and invited him and Huff to attend a meeting which he stated he had arranged for represent- atives of the canvas companies' employees. After this meeting, Rittenhouse again reported to Ryerson that organization in accord- ance with the latter's plan would not be possible unless the question of uniform rates was satisfactorily resolved, and again Ryerson asserted that no difficulty would be encountered on that score. When the Independent was ready for, incorporation, Rittenhouse referred the committee to Alkow, upon instructions from Ryerson. After the 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD first meeting of the Independent, Rittenhouse turned over the task of directing its affairs to Huff. The testimony of Huff is substantially in accord with that of Rit- tenhouse as to the visit to Everson 's home and the meeting in the chair department: Hug did not deny , any part of Rittenhouse's remaining testimony in this respect but merely stated that Ritten- house's knowledge was superior to his, as Rittenhouse had been in charge of the initial phases of the general assignment and Huff had only assisted him. Huff testified, moreover, that he had apprised officials of the canvas companies of his employment by T. N. T. when he dealt with them as "business agent" for the Independent and as "impartial party" in the mediation of disputes. (b) Testimony of the canvas companies , T. N. T., and M. & M. Representatives of the canvas companies disclaimed any connection with, or participation in, the formation or operations of the In- dependent. Everson, superintendent of Mellus, who was directly implicated by the undenied testimony of Griffith in the genesis of the Independent, was not called as a witness . Lewis R. Mellus, president of Mellus, at whose plant the preliminary meeting of the employees with Rittenhouse and Huff was held, testified that his earliest knowledge of any move to unionize the employees was gleaned with- out comment from a casual remark made to him in passing by Griffith some time in the fall of 1937 that the canvas workers in Los Angeles were trying to organize; that on various occasions thereafter Griffith apprised him in the same manner, and again without com- ment from the witness, of the progress of the projected plan, the last item of news thus transmitted having been of the incorporation of the organization; and that he and Everson merely exchanged information already imparted to each of them by Griffith. As for the meetings held in the chair department, Lewis R. Mellus' further testimony is that he had been entirely unaware of that fact until a short time before the hearing, when his brother Frank so informed him. Frank Mellus, vice president of Mellus, testified that his first official notice of the existence of a union at the plant came to him when he was notified by his brother Lewis that they were "going to see about a contract with the union." Prior thereto, his testimony continued, he may have had some discussion with Everson on the subject upon overhearing snatches of conversation among the em- ployees at the plant about an unidentified union, to which remarks he paid very little attention because he had heard so much about unions all over the country. On behalf of Downie, Ernest W. Downie, its president, testified that he had been given some inkling of the existence of the Independ- SUN TENT-LUEBBERT COMPANY 67 ent when his brother Robert presented him sometime in December 1937 with a copy of a proposed contrabt, which came to Robert in a manner unknown to the witness and concerning which Robert made some continent which the witness was unable to recall. In fact,' this ;respondent's president maintained, his earliest information that his employees were actually "in the Independent" was obtained at the first negotiating meeting in January 1938. Robert Downie, secretary of Downie, testified that he knew of the Independent's formation only when,he had been invited to attend the first negotiating conference by a person whose identity he could not recall; that he did not believe that he had discussed the invitation with his brother Ernest; and that he had heard earlier in.a vague way about the presence of some of his employees, whose names he did not know, at a meeting in the Mellus chair department. Substantially similar testimony was given by the treasurer of Sun Tent as to when he definitely learned of the organization and birth of the Independent as an entity among his employees. The testimony of United's vice president is that sometime in De- cember 1937 he overheard statements by employees on the selling floor that an "Independent" union was in the process of formation but that the first definite notice of the Independent's emergence as a labor organization among his employees was communicated to him in the Independent's letter asking him to attend the initial negotiating conference. Another United official testified that he had perhaps observed a group of employees leaving the plant for a meeting at Mellus but that the first reliable report concerning the Independent was transmitted to him by United's vice president when the latter commented to the witness that he supposed "we are going into a union." That report, he asserted further, was substantiated by whispering throughout the plant about the formation of the In- dependent. No attempt was made by any of the canvas company officials to dispute the testimony of their employees concerning the unhampered solicitation of members and collection of dues on company time and property with the assistance of ranking supervisory officials, or con- cerning the open use of company time and facilities for meetings and bulletins. Some officials merely denied having seen notices of Independent meetings posted in' the plant; others admitted observa- tion of occasional notices; and Sun Tent's treasurer testified that he had seen a notice on the plant bulletin board on only one occasion, at which time he tore it down and reprimanded the supervisory employee who had posted it. The supervisory employee to whom ,the reprimand was allegedly administered did not testify. In any event, the testimony of Sun Tent's treasurer, even if true, does not 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'conflict with the uncontradicted testimony of Sun Tent employees that Independent notices did in fact appear on the time clocks. The canvas companies, moreover, denied knowledge of any connec- tion•of T. N. T. or M. & M. with the formation of the Independent and with the government of its affairs and disclaimed any collaboration with either organization in those respects. All testified that, although they had participated in several conferences with Independent repre- sentatives and Huff at T. N. T. offices and had attended at least one social function arranged for the Independent at T. N. T. headquarters, they were wholly unaware of the fact that T. N. T. space was being used on those occasions and merely believed that they were visiting Huff at- quarters which lie occupied • as busi ness agent of the Inde- pendent. All likewise claimed that they had had no dealings with Rittenhouse; that they had met Huff for the first time at the initial negotiating conferences; and that they were thereafter notified by Huff of his appointment as business agent for the Independent. In that capacity, they stated, Huff had enjoyed free access to their plants, talked with their employees during working hours, adjusted with company officials grievances arising under the contract with the Independent, and supplied the',canvas companies, upon request, with new employees. As already indicated herein, in April 1938, when the Upholsterers was attempting to enroll the employees of United, Huff assembled them on the third floor, of the plant during working hours, accused some of those present of being "rats," and threatened with discharge any employee who deserted the ranks of the Independ- ent for another labor organization. With respect to that incident, United's vice president testified that lie had learned from sources which he. was unable to recall of Huff's visit to the employees but that the witness had neither instructed Huff concerning the meeting nor learned of its character or results. The testimony of another United official is that he assumed that Huff had been accorded un- hampered access to the plant; that, whenever Huff appeared at the plant, the witness believed that his mission dealt with "some kind of a union" and that he left the locale of "secret" meetings between Huff and the employees held during hours in the factory "until it was over" because of a desire to accord the employees the freedom neces- sary to consider their private problems. There is no disagreement in the testimony of the canvas company officials that, about a month before the emergence of the Independent, a representative of Al. & M. had discussed with them their labor rela- tions problems; that soon thereafter they attended a meeting at M. & M. offices for the purpose of obtaining advice and guidance on how to maintain the "open shop" in the canvas industry; and that on December 1. 1937, Sun Tent, Downie, and United joined M. & M., SUN TENT-LUEBBERT COMPANY 69 Mellus having been a member for many years. Robert Downie testi- fied that Downie enrolled as a member of M. & M. in order "to give them financial support in the effort that they were putting forth in Los Angeles to keep Los Angeles an open shop town." Kirschberg of Sun Tent admitted having -met Ryerson at M. & M. offices before the emergence of the Independent, while Frank Mellus testified that he might at sometime have met Ryerson under circumstances which lie was unable to recall. The Trial Examiner found, and we agree and find, that it was Ryerson who represented M. & M. in all dealings between the canvas companies and M. & M. T. N. T.'s contentions paralleled and supplemented those of the can- vas companies. Both Bessie A. Ochs, general director of T. N. T., and William T. Abbott, office manager of T. N. T., maintained throughout the course of their testimony that, while they knew that an "inde- pendent" had been established among the employees of the canvas companies, T. N. T. had not taken the initiative in forming that organ- ization and had not at any stage consulted or communicated with the canvas companies. T. N. T.'s policy, they insisted, with which all staff members were instructed to conform, was to avoid strictly any dealings with employers and to offer guidance and assistance only to employees at the latter's request. Moreover, they claimed, T. N. T. had never actually formed "independent" unions but had in the early months of its existence advised employees, in response to their request, on the mechanics of setting up such organizations. Neither witness was, however, able to recall a single specific instance of an employee appeal to T. N. T. for guidance, advice, or assistance. When first asked about Ryerson's presence at T. N. T. offices, Ochs testified that she knew of his employment by M. & M. in 1937 and 1938; that she had seen him at T. N. T. offices on several occasions when he had called upon her socially; that she could not remember whether such visits were made during November and December of 1937; and that she did not recall that he had talked with her about the canvas companies. In a later portion of her testimony, Ochs stated that, when Ryerson had called at T. N. T. offices, he had talked only with Abbott and that she was unable to recall whether she, or Rittenhouse, or Huff had ever participated in those conversations. Abbott testified that, starting late in 1937, Ryerson had "dropped into" his office "very often" to talk about a "personal matter"; that, although Abbott knew in a general way that Ryerson was employed by M. & M., he never probed him concerning the character of his work; and that Ryerson at no time discussed with Abbott or Ritten'- house the formation, of "independent" unions. Asked directly by counsel for the Board whether Rittenhouse had discussed with Ryer- 433257-42-VOL 37-G 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son in the presence of Abbott the question of the adjustment of -wages in the canvas industry, Abbott replied : My answer to that would be no because if anything of that kind ever occurred, which I have no knowledge of such thing ever occurring, it would not have been discussed before Rittenhouse; it would have been discussed between Mr . Ryerson and myself personally, and any information would have gone from myself to Mr. Rittenhouse. In answer to the question of whether he had ever heard Alkow's name mentioned, Abbott replied that he had on one occasion, under the following circumstances : As Abbott and Ryerson were leaving T. N. T. officers on their way to lunch, Rittenhouse asked Abbott whether Ochs had made any provision for the retention of counsel for the incorporation of an "independent" whose identity Abbott was unable to recall at the hearing. Whereupon, Ryerson suggested that there was an attorney named Alkow "right across the street" who would be able to handle "anything of that kind." Subsequently, and from time to time during the course of his testimony, Abbott made statements which were entirely at variance with the testimony herein summarized. Leslie Swabacker, T. N. T. publicity director in 1937 and 1938, testi- fied that he had seen Ryerson in long, whispered conversations with Abbott, Rittenhouse, and Huff every day from November 1937 to March 1938, a circumstance which had led the employees to refer to him as "secret agent 1-9," and that Swabacker had inferred that Ryerson was collaborating with T. N. T. in the handling of labor-rela- tions problems. Ryerson did not testify. Fred R. Fysh, general manager of Al. & M., testified that Ryerson had at the time in question been a member of Al. & M.'s industrial-relations staff, in which capacity he had per- formed the duties of "contacting employees, calling group meetings of the concerns within the industries that he was assigned to, asking their cooperation in furnishing pay rolls, hours of work and work- ing conditions information, and advising and counselling employers on labor relations," on all of which he had submitted daily reports to Fysh. Fysh denied, however, that Ryerson's duties required him to visit T. N. T. offices and stated affirmatively that he, Fysh, had expressly enjoined Ryerson from making such visits. The testimony of Ebner Howlett, president of Al:. & Al. from September 1937 to December 1939, is that Ryerson operated pursuant to Fysh's con- trol and direction and that, as a member of M. & M.'s industrial-rela- tions staff, Ryerson might have visited plants encountering "labor difficulties." SUN TENT-LUEBBERT COMPANY 71 (c) Evidence emanating from T. N. T. and M. & M. files and other material evidence Documents originating from the files of T. N. T. support and sup- plement the testimony of Rittenhouse and Huff and tend to discredit the protestations of the canvas companies and the contentions of Ochs and Abbott. Both men testified without contradiction that they were required to prepare for the-files reports on their activities as field or- ganizers and that they usually dictated those reports to T. N. T. stenog- raphers, who later transcribed the dictation for them. Since, as the record shows, these reports and other memoranda were removed from the files late in 1938 upon instructions from Ochs,5 counsel for the Board introduced in evidence transcriptions of the stenographic notes taken by Virginia Lee Marshall and Lorna Brostrom, employed as stenographers by T. N. T. at all times herein material. Marshall and Brostrom identified the transcriptions as correct upon comparison with their stenographic notebooks. Both testified that most of their dictation on "independent" unions had been given to them by Huff and Rittenhouse. A transcription of the stenographic notes contained in Marshall's notebook shows that on December 27, 1938, there was dic- tated to her in the course of her duties as stenographer for T. N. T. a memorandum to Robert Downie, manager of Downie, reading in part as follows : The company was threatened with invasion of the International Unions. The management called on this office for advice as to what procedure to take. The employees were brought together .and formed an independent union. A satisfactory agreement has teen worked out by the management and the employees * * * Independent unions were formed in all of these companies [the canvas companies]. This union meets in this office two or three times per month. A member of this office acts as their labor advisor. - A transcription of the stenographic notes contained in Brostrom's notebook and her testimony in that connection disclose that some time 5 Accoi ding to the testimony of Rittenhouse, which we believe as did the Trial Examiner, because it is corroborated and rendered plausible by other evidence sufficient to discredit the vague and conflicting denials of Ochs and Abbott, when an investigation of the activities of T N T by a subcommittee of the Senate Committee on Education and Labor was inuni- nent, records reflecting contacts between T N T and various employers and disclosing the formation by T N. T of "independent" unions at the request of employers were, on instruc- tions from Ochs, removed from T N T 's files and replaced by memoranda and reports stating that all activities in this connection were pertouned solely for and at the request of employees Some of the original iecords were, however, preserved by Rittenhouse, and others nevertheless remained in the files A few reports, which bear earmarks of ievnsion, or whnh were obviously prepared by T N 't' to conceal its contacts with employers are also in evidence We do not, of course, regard these revised reports as authentic and. consequently, are unable to credit them 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between March 25 and April 26, 1938, there was dictated to her in the course of her duties as stenographer for T. N. T. a report which reads in part as follows : INDEPENDENT CANVAS WORKERS UNION : Several months ago this organization was set up in order to pre- vent unnecessary labor troubles * * *. * * * At the time this case was brought to the Neutral Thousands, a very serious situation existed. The C. I. O. prac- tically had control and they had fully planned to strike all five 6 of these companies in such a manner as to put them out of busi- ness if they did not accede to their demands and practically turn them over to the C. I. O. by forcing the five organizations to sign closed shop contracts. We found upon investigation of this case, the main difficulty seemed to lie with two of the firms who did not seem to be willing to pay the same wages or grant the same hours of work as the other three organizations. Therefore, a meeting of the managements was called and after a great deal of discussion promises were exacted that they would meet the same wage schedule and working conditions as existed in the other three organizations. This was satisfactory to the employees of both the firms in question. As a result the employees from the firms stood with the independent movement 100%. The organization was formed, agreements drawn up in accordance with-the manage- ment's request and the independent organization recognized by all five concerned as the bargaining agency. Further doubt is cast upon the veracity of the canvas companies' officials and of Ochs and Abbott'by a memorandum, dictated by Ochs to Marshall some time during the early months of 1938 and addressed to Southern Californians, in which Ochs reported that the canvas companies were desirous of expressing in some concrete form their "gratitude for the work done for them."' The further testimony of Rittenhouse, which is supported by docu- n1entary evidence from the files of T. N. T. and M.'& M., reveals a system of close collaboration between T. N. T. and M. & M. in the formation of "independents," directly at variance with the position taken by T. N. T. and M. & M. officials. The testimony of Rittenhouse and the documentary evidence by which it is supported may be sum- marized as follows: In August 1937, while Rittenhouse and Huff were engaged in promoting so-called "independent" unions for an U It appears from the record that the independent was originally planned to include the employees of a fifth canvas employer not named in the complaint T As hereinafter shown, the Club, of which the canvas companies were members, joined Southern Califon mans in May 1938 SUN TENT-LUEBBERT COMPANY 73 organization known as the League of Independent Unions,' Fysh, in an interview with Rittenhouse at M. & M., arranged to refer to the League of Independent (Unions any requests that might be filed with M. & M. for the initiation of employer-controlled organizations. Thereafter, and until Rittenhouse's employment by T. N. T. on Novem- ber 1, 1937, Fysh requested Rittenhouse to interview management representatives or designated employees and to set up or revive "inde- pendents" at four named plants.' When Rittenhouse and Huff joined T. N. T.'s staff to devote themselves exclusively to the formation of "independents," Abbott instructed them to restrict themselves in all cases to dealings with employees, explaining that he, Abbott, would "take care of the employer situation, or the employer contacts" and would submit to Rittenhouse and Huff the names of employees "to contact in the various industries." Ochs advised Rittenhouse that all requests from Fysh were to be made directly to Abbott, from whom Rittenhouse was to take instructions. The advice of Abbott and Ochs reflected a disagreement between T. N. T. and M. & M. on the division of functions between the two organizations which was soon resolved by the assignment of Ryerson to T. N. T. offices to work with Abbott in directing the activities of Rittenhouse and Huff. Almost directly after; Ryerson's first visit to T. N. T. offices, he requested Rittenhouse, in the presence of Abbott, to confer with named repre- sentatives of management in the wine industry and with Everson of the canvas industry on the introduction of "independents" among their employees and to report back to Ryerson.1' In addition, Ritten- 8 The "independent " union technique was first peifected by Rittenhouse and Huff under the auspices of the League of Independent Unions and was later adopted by T. N. T. when it hired these men. ° The fist assignment was to call on the general manager of the Oriental Rug Cushion Company at Vernon, California, "pertaining to the establishment of an independent union at the plant " The second, made in October 1937, was to attend a meeting of the United Pai eel Delivery employees and hell) them "establish or reestablish" an "independent " The third direction was to consult a named employee and a named executive at the Andrew Jergens Company plant at Burbank , California, on the restoration of an "independent" which the employees had voted to abolish In the fourth instance, the iequest dealt with Columbia Mills of Los Angeles, where a strike was in progress T N T.'s records show that Rittenhouse and Huff successfully prosecuted their assignments in the last two in- stances and that "independents" subsequently emerged at those plants pursuant to the 7 N T formula "That Ryerson was assigned by Fysli at that time to break a strike at the Padre Vine- yard Company is not disputed and is supported by 1l & 1l records, as well as by the testi- mony of Rittenhouse, Huff, Abbott, and Fish with the cooperation of the president of this plant, Rittenhouse succeeded in establishing an "independent " When other wine pro- ducers evinced reluctance to follow the example of the Padre Vineyard Company, 1l & 31 called two meetings of the wine Producers of Southern California, an employers' associa- tion, which Abbott attended upon invitation of M & AT Both Ryerson and Howlett, president of 1l & 11 , addressed the second meeting on the work of T N T and the general laboi situation In a monioiandnm, dated November 30 1937, Abbott reported with respect to the second meeting that "while it was impossible in a gathering of this kind , to discuss openly the fiction benig taken by the Neutral Thousands in the adjustment of the economLc situf.tion, the members were given to understand that this organization was working in perfect bar- 74 DECISiIONS OF NATIONAL LABOR RELATIONS BOARD house was instructed to continue the work he had started for Fysh. At this time, Rittenhouse was also engaged in sponsoring an employer- supported "independent" at a milling company, in compliance with a request by the chief of M. & M.'s industrial-relations department,, who had explained to Rittenhouse that there was "quite a program put into effect out there" by the A. F. of L. For several months, Rittenhouse and Huff reported to Ryerson and Abbott on the progress of their assignments and received instructions from them to establish other "independents." Reports prepared by T. N. T.'s staff on their labor-relations work lend credence to the testimony of Rittenhouse on the genesis of the Independent and indicate the established technique used by Ritten- house and Huff in effectuating Ryerson's instructions with respect to the Independent. These reports, particularly those prepared by Rit- tenhouse and Huff on their activities as field organizers, reveal the perfection of T. N. T. of an "independent" union formula and yield a wealth of information on the practical application of that formula by T. N. T. in collaboration with M. & Al. The formula and the technique by which it was applied may be described as follows: Em- ployers confronted by the initiation of organizational activity among their employees, or by possible or actual strikes, or by a demand for the continuance of a contract entered into with the A. F. of L. or the C. I. 0., turned to T. N. T. or M. & M. for advice and assistance in devising a means of combat. Thereupon, Abbott, or Rittenhouse, or Huff proceeded to investigate the situation and to determine the ad- visability of introducing an "independent" union among the employees in question. If the initial organizational activity appeared serious or the strike showed signs of 'being successful, if other conditions ap- peared favorable, and if the employer showed a willingness to accord T. N. T. complete cooperation, Rittenhouse or Huff, upon instructions from Abbott and Ryerson, immediately launched the organization of an "independent." 11 They proceeded to consult "key" employees des- loony and cooperation with all of the oiganizations foamed for that purpose . . . It was suggested by Mr Ryerson, that ,Inv of the individual members who had any questions to ash legarding the Neutral Thousands and the work thev propose to do get in touch with me, personally, after the close of the meeting Several of the members came to me after the meeting had adjourned, and, I now feel that tine situation is entirely cleared and there will be no further difficulty in protecting the wine industry of Southern Califoinia " How- ever, the joint efforts of the H & Al and T N T yielded no results in the wine industry generally The "m dependent" formed at the Padie Vmelard Company was later disestab- lished by order of the Board entered upon a stipulation of the parties involved See Matter of Padre Vineyaid Company and Ii leery Woiheba Union, Local No 21286, it N. L R B. 1121 11 The following ai e summaries of typical reports prepared by Rittenhouse and Huff, of T N T compliance with the employer appeals made under the circumstances related in the -text Many knitting mills requested T N T help "in working out their difficulties which have been caused by both the A F of L and C L O " An "independent" was there- after formed and "there are no labor troubles existing in this organization." The SUN TENT-LUEBBERT COMPANY 75. ignated by the employer and Ryerson as reliable, to undermine the- confidence of the employees generally in the national organization- hicll was attempting to enroll them, and to suggest, finally, that only w an "independent" union could grant them security of employment through respectable and dignified representation. . In the absence of strong employee opposition to the suggestion, with the aid. of the "key" employees, and under the persistent guidance of Rittenhouse or Huff, an "independent" soon came into existence as a non-profit corporation.'2 Thereafter Rittenhouse or Huff assumed control of the organization, for, as Rittenhouse explained in a memo- randum to Ochs on December 27, 1938, "Many of these employees lacking leadership depend upon the members of the staff of T. N. T. to guide them in holding their organization together. The remark has often been made by the managements" of the industries in which "independents" were organized "that their organizations would not last without the guidance and cooperation given them by the staff' members of the Neutral Thousands." In their conduct of the affairs of the "independent," both men Were astute to- eschew and discourage' any action which might lead to preoccupation with working condi- tions or a demand for a collective agreement and diverted the group,. with the aid of T. N. T.'s facilities, to social and recreational pursuits. Tones 'Knitting Mills, however, could not be helped out of its difficulty because it refused to agree to the formation of an "independent "Certain leaders" in the citrus industry asked T N' T "to step into the picture and attempt to do something that will in some way protect the industry" against organi- zational efforts of the A 1+' of L and the C I 0 * * * * * * * Upon an appeal to T N T by the management of the Biltmore Florists for assist- an(,( in settling their labor problems, the eniploees were formed into our "independent," a device which ' blocked out the International Union I During a strike, the management of the Vernon Nussbaum Company called upon T N T to form it group "that would settle then labor difficulties " An "independent" was formed and work was resumed Under similar circumstances, an "independent" came into existence at the Columbia Mills and "the company have been very high in their praise of the work" done by T N T * * * * * * An offlcialtof the National Venetian Blind Company informed Rittenhouse that, if there was any possibility of getting out "from under the 3oke' of a contract the com- pany had signed with the A F of L, he would welcome the advent of an "independent" and requested Rittenhouse "to keep in close contact with the situation" so that an "independent" might be foi med "as soon as possible " 12 The following summaries of T N T reports indicate some of the circumstances under which organization of an "independent" was not undertaken A conference between Rittenhouse and the officials of five wholesale canvas com- panies revealed that the number of employees was too small to warrant the formation of an "independent " The same reason was assigned by Abbott in a memorandum to Ochs dealing with the Mayfair Hotel whose owner had appealed to T N T during the course of a strike * * * * * * * With respect to the appeal of the manager of Weiner Dried Fruit Products Company, Rittenhouse reported to Abbott on June 16, 1938, that an interview with the manager had led him to believe that T N T. would not be successful "in warding off labor disturbances " 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Only where a collective agreement appeared to either of the field organizers or to the employer to be the sole means of preventing de- fections to genuine labor organization were the employees encouraged to demand an agreement.13 To create the impression among the em- ployees that they were in fact bargaining with their employers, and at the same time, to assure employers that the "independents" were not turning into true collective bargaining agencies, the field organizer in charge of a particular "independent" simultaneously assumed the conflicting roles of "business agent" for the "independent" in its deal- ings with the employer and "impartial party" or mediator for both .sides in settling disputes between them. Employees for whom an ".independent" was created were insulated against the possible. dis- ruptive Influence of new employees by means of Al. & M.'s employment service, which, upon the request of employers for new employees, supplied, wherever possible, members of "independents" who had been laid'off at other plants. "Independents" were organized in accordance with the T. N. T. technique in a variety of industries in Southern California and were kept alive by T. N. T. as long as the circumstances -which brought them into existence persisted or until the employees recognized their futility as a collective bargaining agency. An analysis of the practical operation of the T. N. T. technique is to be found in a memorandum from Ochs to Southern Califor- nians, dictated by her to Marshall early in 1938, from which the following are excerpts : I am inclined to believe that these independent associations have been somewhat misunderstood by certain employers in Los Angeles. We do not at any time suggest a contract. We believe this is bad for both employer and employee. We do not even urge the employer to recognize this independent group in any way unless it becomes necessary * * *. I can honestly say that in practically every case we have had pass through our offices that these independent organizations are two-fold in purpose : first, to unite the employees of any specific industry to protect their organizations against the inroads of either of the big unions, and through this standing together say to the employer, "We are standing with you in this matter and intend to bargain with you." * * * * * * 13 The execution of a contract by the canvas companies and the Independent is explained in a memorandum dictated to Brostrom in March or April 1938 as the result of "the insist- ence of the management , an action which we advised against , and which has caused a g, eat deal of confusion." ' SUN TENT-LUEBBERT COMPANY 77 ,One employer came into our office last week. When I asked him how things were going, lie said, that was why he was calling on us. They seem to be going much too smoothly. He said he couldn't help but be suspicious because he hadn't had a par- ticle of trouble since we got his plant open, and he gave the Neutral Thousands the credit for getting the plant opened. This company I am referring to is a national organization and I met the general manager from the East about a week ago. He said, "Mrs. Ochs, our organization has spent thousands of dollars attempting to draw up a perfect contract between em- ployer and employee. We have written and rewritten six dif- ferent contracts, none of them workable. Then I talked with a man from your organization and he gave me the program we are now operating on, and it is absolutely working 100%. * * * That Ochs' report to Southern Californians of employer apprecia- tion for T. N. T.'s services was not merely self-serving is evident from a letter written to T. N. T. by the president of a fruit-packing company at whose plant T. N. T. had organized an "independent" in reply to an appeal by the management during a strike called by the A. F. of L. for recognition. The letter reads as follows : Your organization certainly acted in a bolstering capacity when some of our help needed bolstering up during the strike. - Some of our girls were intimidated to the point where they really needed an outside force to keep their courage up. At other times too, your work has been up to expectation when we asked for aid. We feel that it is just too bad that your organization was not as big and stroDig as it is today, when we first had our trouble 14 We know that had it been, it would have been just that much, more valuable to us. We feel that your organization today has grown to be strong enough so that your aid to people who are persecuted and har- assed, can really be outstanding. Again wishing to thank you and also to say how nice it is. to have an organization such as yours to call on in time of need, we wish to remain, That T. N. T. and M. & M. collaborated in the introduction of "independent" unions among business and industrial entities in 14 According to the daily reports of Rittenhouse and Huff, this employer had earlier been involved in a labor dispute but had considered the establishment of an "independent" as inndvlsable at that time Subsequently, as shown by a memorandum from Rittenhouoe to Abbott, dated March 14, 1938, and by the former's report of December 27, 1938, an ' inde- pendent" was formed under the aegis of T. N. T upon an appeal by the management duung a strike that T. N. T. form a group "that would settle their labor difficulties " 78 DECISIONS OF NATIONAL LABOR RELArTIONS BOARD Southern California appears not only to be established directly by the testimony of Rittenhouse and by the documentary evidence here- inbefore summarized but is also to be inferred from the general policy and program of both organizations. There is no dispute in the evidence that M. & M. and T. N. T. have publicly declared them- selves protagonists of the "open shop" and that in' 1936 M. & M. reorganized its staff and redirected its activities toward the end of establishing the "open shop" in Los Angeles and its environs. In September 1936, M. & M. publicized that policy in a "Declaration of Principles," which it described as "essential to peace and stability in industrial relations and to the general welfare of the community" and which it pledged itself to maintain, offering its facilities and services "to employer and employee alike." M. & M.'s officials in- sisted at the hearing that the term "open shop," as advocated by them, connoted a policy of employment not conditioned on member- ship in a labor organization. However, publications issued by M. & M. to its members and to other employer groups and documents from M. & M.'s files show that in practice the "open shop" policy espoused by M. & M. was designed to cover a deliberate anti-union policy.- Specifically, it was directed at defeating the right of em- ployees in Los Angeles and its environs to self-organization and collective bargaining through representatives of their own choosing. M. & M. sought to impose this policy on the labor relations of busi- ness and industry by means of a general propaganda campaign de- nouncing all unions as mere instruments of "racketeers" and "pro- fessional organizers" who prey upon employers and employees alike, declaring that membership in a union is not necessary for the en- joyment of "any real or fancied benefits" under the Act, and exhort- ing employers to deal only with their own employees "rather than indirectly through an outside organization." Simultaneously, M. & M. launched an intensive drive among industry and business for the formation of trade associations, ' whose members pledged them- selves to maintain the "open shop" and to deliver materials through picket lines, at the request of M. & M.", Direct strikebreaking serv- 15 That such as the usual intent of the `open shop" policy is well established For exam- ple, the Bureau of National Allan s, Inc , in its "Primer of labor Relations," defines "open shop" as "Plant where employees are declared by the employer to be tree to join any union In practice it tends to mean a shop or plant where unions ate kept out " The term "union" used in this context, denotes, of course, the bona fide labor organization, not controlled of dominated by the emploor 10 The success of the drive is reflected in the following excerpt from the minutes of the October 8. 1936, meeting of 11 & M's board of directors As a result of the Association's [M & _M 's] campaign many industries have definitely committed themselves to maintain open shop conditions The milk industry has formed an industrial association for that particular purpose as has the bakery group The wholesale food distributors are planning on forming it similar organization. The lumber industry has agreed tb maintain the open shop The greatest pressure is on the trucking industry due to the tie in of the Truck Drivers Union with the maritime SUN TENT-LUEBBERT COMPANY 79 ices were also made available to M. & M. members.17 In addition, M. & M. maintained, a free employment bureau for the placement of nou union employees, particularly at strikebound plants and at entities where an "independent" had been organized. Like Al. & AT., T. N. T. devoted itself to promoting the "open shop" by continued and widespread attacks on both the A. F. of E. and the C. I. O. as forces inimical to "industrial peace," by public appeals to employee groups to abandon those organizations and to `band together as "independent" unions under the aegis of T. N. T., and by repeated exhortations to employers to recognize and deal with "independent" unions as the only means of attaining "industrial peace".in Southern California. (d), Conclusions as to credibility The Trial Examiner refused to credit the protestations of the canvas companies, and their testimony in support thereof, that they had not participated in the formation of the Independent and that they had in no way cooperated with T. N. T. and M. & M. Con- cerning the testimony of Ochs and Abbott, the Trial Examiner found their statements to be impossible of credence because they were "so at variance with the documentary evidence" and were in no wise borne out by the record. His rejection of Fysh's testimony is ex- plained in the Intermediate Report as follows : Without going into a detailed discussion of Fysh's testimony, it should be noted that his testimony and demeanor on the stand reveal an evasiveness and reluctance to testify, 'together with a convenient lack of memory when questioned by Board's counsel as contrasted to a' directness and volubility when questioned by the M. & M.'s counsel. A comparative analysis of the testimony is given by Rittenhouse and Fysh reveals the inconsistency and implausibility of the latter's testimony. . . . He credited Rittenhouse's testimony where uncontroverted and ac- cepted it as the true recital of the facts where it conflicted with the testimony of the canvas companies, Ochs, Abbott, Fysh, and other wit- nesses because he found that Rittenhouse had testified "in a consistent and- forthright manner" - and that his testimony "was supported by union. It is known that there is an agreement whereby the San Pedro truck drivers union has agreed to cooperate fully with the maritime union in case of a waterfront strike. The trucking industry, however, has stated that with proper, provision for protection in the event of a strike they will move merchandise to and from Llie docks. 17 The indiscriminate offer by M & M of its strikebi caking services evoked the protest of one of its own members, who, in a letter to Fysh, dated Febiuary 21, 1939, decried the fur- 'rushing of stilkebreakers "to one of the most unfair employers of labor in the City of Los Angeles ' 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD documentary proof and by the admissions and statements of others, most of whom were in the category of hostile witnesses." We agree with the Trial Examiner and reject the testimony of the canvas companies, Ochs, Abbott, and Fysh. Inconsistent, implausible, vague, and incomplete on its face, their testimony is entirely dis- credited by the documentary evidence emanating from the files of T. N. T. and M. & M. and by the public utterances and announced policy and program of both organizations. Moreover, the failure of Everson, plant suuperintendent of Mellus, to testify leaves entirely uncontradicted the testimony of Rittenhouse and Huff concerning the preliminary steps taken in introducing the Independent. Similarly, the failure to call Ryerson as a witness must under the circumstances be construed against the respondents. particularly M. & M. Rit- tenhouse's version of the events is, on the contrary, amply supported .by documentary evidence, by uncontroverted surrounding circum- stances, and by the admissions of hostile witnesses, among whom we place Huff. We consequently accept as true the testimony of Rittenhouse. We find, therefore, that the canvas companies sponsored the forma- tion of the Independent and, enlisted the services of T. N. T. and M. & M. in establishing the Independent, in -administering its affairs, and in contributing support to it. (3) Connection of Southern Californians with the Independent Southern Californians contended at the hearing that, although it had financed the activities of T. N. T. and had made large contribu- tions to M. & M., it exercised no control over the activities of either organization and is, hence, not answerable for whatever conduct in which its beneficiaries may have engaged in connection with the Independent. The undisputed testimony of canvas-company officials and a mem- orandum from Ochs to Southern Californians establish the fact that the canvas companies joined Southern Californians in May 1938, and regularly thereafter during the life of the Independent paid the re- quired membership dues, amounting to the total combined sum of $574.81, because of their approval of Southern Californians'- program and out of gratitude for the services which they believed Southern Californians had enabled T. N. T. to perform on their behalf in establishing and maintaining the Independent.1' That circumstance "It is, moreover, to be noted from testimony which we believe that, on numerous occa- sions, when Rittenhouse and Huff were assigned to form "independent" unions or otherwise to handle labor problems of employers who were not members of Southern Californians, they customarily laid the foundation for membership and thereafter promptly referred the prospects to Southern Californians for solicitation SUN TENT-LUEBBERT COMPANY 81 and the purpose and program to which Southern Californians was dedicated, as well as other evidence concerning its relations with T. N. T. and M. & M., negative Southern Californians' claim and con- vince us that it supervised and directed the affairs of T. N. T. and M. & Al. and sponsored the formation of, and rendered financial assist- ance to, the Independent. Although Southern Californians' officers stated that its purpose was not inconsistent with the legislative policy of self-organization of labor and that its function, as conceived by its founders, was merely "to inform the public what was going on" in the filed of labor rela- tions and "to bring pressure to bear upon employers who did not properly compensate their employees," documentary evidence consist- ing of literature issued by Southern Californians, speeches delivered by its officers, and reports prepared by its staff disclose a considerably broader program, of which the objectives testified to were merely minor and subsidiary aspects. The evidence shows conclusively that Southern Californians came into existence in October 1937, and there- after continued to exist, primarily for the purpose of augmenting and financing the, efforts of Al. & Al. and T. N. T. in establishing the "open shop" in Southern California as a means of combat against organized labor and that the objectives testified to constituted some of the lesser means by which that purpose was sought to be achieved. Thus, soon after the emergence of Southern Californians, Al. & M.'s president, who together with several members of M. & M.'s board of directors and other businessmen had actively promoted the new organization, announced at a meeting of M. & M.'s board of directors that Southern Californians had been "set up to act in the capacity of a Community Chest for labor problems, and to coordinate the efforts of all existing employer groups." On November 29, 1937, Southern Californians' program committee reported the approval by the executive committee of,a policy of cooperating "to the fullest extent" with the "expanded program" of Al. & M. and T. N. T., to which Southern Californians pledged its support as soon as funds were available. At a meeting held on December 13, 1937, for the purpose of enlisting members, Southern Californians declared its purpose to be "to provide a United Front for business and industry against the unlawful and violent methods of professional, outside, racketeering labor leaders, and against the imposition by them of the ruinous closed shop" and extended "an urgent invitation to join in a fight to make this area industrially free-where industry may flourish, and where every worker will have opportunity for employ- ment under the best possible conditions." The means by which these objectives were to be attained were not disclosed to the audience because, as explained by its president at the meeting, "For manifest 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasons it would not be wise to reveal such plans or strategy at this time." In a letter 'dated December 21, 1937, soliciting memberships among "all the more important" executives of business and industry, Southern Californians epitomized its purpose as being "to meet or- ganization with organization," which, under the circumstances, clearly implies a concerted effort to interfere with the rights guaran- teed to employees by the Act. As soon as sufficient funds had been accumulated in membership dues, Southern Californians began to contribute monthly to M. & M. the sum of $2,000 and to finance all the activities of T. N. T. From March 1938 to February 1939, M. & M. received outright contribu- tions from Southern Californians totaling $23,000, and, in addition, by joint arrangement of both organizations, Southern Californians donated to M. & M. on behalf of those who maintained memberships in both organizations the annual clues required of them by M. & Al. The moneys contributed to M. & Al. directly were used in part for the expansion of its industrial-relations department in which Ryer- son worked. That Southern Cali fornians supervised the expenditure of the funds thus contributed by it and directed the labor-relations work of M. & M. is plain from the fact that from 1937 to 1939 eight members of the board of directors of Al. & M. were also on the board of directors of Southern Californians and is evident from the minutes of a joint meeting of the executive committees of both organizations, held on January 10, 1938, at which the chairman of Southern Cali forniiuis' board of directors presided. The purpose of the joint meeting was, as stated in the minutes signed by Southern Califor- nians' secretary, to consider a report of a "cooperative program" for both organizations. The meeting adopted a resolution permit- ting members of Al. & Al. who were prospective members of Southern Californians but who were unable to pay the required dues of both organizations to be relieved of one month's clues to Southern Cali- fornians as a perquisite of continued membership in Al. & M.- Other resolutions, dealing with the program to be undertaken by Al. & Al., were also adopted, the following being material and relevant: M. & M. was to continue its free employment service, to expand its' Investigation, Law Enforcement, and Legal Counsel Departments, to relinquish its publicity activity to Southern Californians, which could "head up" all publicity, to furnish all estimate of costs to carry on the expanded program, and to table the execution of its 10 Subsequently , at a joint meeting of both executive committees, it was decided to extend this benefit of dual membership to all M & Ill members , regardless of financial position, and Southern Californians was directed to advise those of its members who belonged to M & AI to deduct the amount of their annual dues paid to M & Al. from the dues payable to Southern Californians SUN TENT-LUEBBERT COMPANY 83 "open shop" policy with respect to a named industry until Southern Californians had made a preliminary survey of that industry. As ' of March 15, 1939, when T. N. T. closed its offices, Southern Californians had expended on its behalf through direct contributions and through the assumption of its expenses the approximate sum of $87,000, which represented over one-fourth of the total contributions made by Southern Californians from 1937 through 1939.20 With the funds thus received T. N. T. maintained its staff and devoted itself in the various ways already described to banishing the A. F. of L. and C. I. O. from Southern California and to the furtherance of its "incle- pendent" union program. Memoranda and reports prepared by T. N. T.'s staff and by Southern Californians and the credible testimony of Rittenhouse and other witnesses show that all phases of T. N. T.'s work were scrutinized and supervised by its benefactor. Early in the existence of T. N. T., Ochs transmitted to Southern Californians' executive committee a detailed prospectus of work contemplated, dis- cussing at length the "independent" union formula and program. In addition, T. N. T. submitted to Southern Californians for its approval an itemized monthly budget of proposed expenditures. Each state- ment thus prepared covered the salary of Abbott, Rittenhouse, and Huff. Among the items charged to T. N. T. on Southern Californians' books and paid by Southern Californians is that of $13,436.25 for pub- licity. The main theme of T. N. T.'s publicity was in essence the "open shop" principle as advocated by Al. & Al., supplemented by an appeal for the "independent" union formula as the sole means of achieving stability in labor relations. The principal media through which T. N. T. made this theme articulate were bulletins and other literature and the radio. In the preparation of publications, T. N. T.'s director of publicity relied upon literature issued and sent to him by Southern Californians and Al. & M. Radio programs were approved in advance by a joint committee representing T. N. T., M. & M., and Southern Californians, appointed by Southern Californians' presi- dent. On at least one occasion a radio program, devoted to publicizing the Independent as a model of employer-employee cooperation, was conducted under the auspices of T. N. T. after having been reviewed by the joint committee. Another item paid by Southern Californians is that of $709 for legal services rendered to T. N. T. in connection with the incorporation of and advice to "independents." Southern Californians also supervised the general activities of T. N. T.'s staff through the coordinating work performed by J. L. Vain Norman, who served as "contact man" between the two organlza- 20Except for the proceeds of a trust fund established for T N T by various business units and exhausted about six weeks after T . N T's incorporation , T N T was entirely financed by Southein Calitoinians 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lions. In that capacity, according to the testimony of Rittenhouse and documentary evidence, lie discussed with Rittenhouse and Huff the details of their work in forming and directing "independent" unions and received reports from Ochs on the general program and progress of T. N. T. As is apparent from Rittenhouse's testimony, which we believe, as did the Trial Examiner, Van Norman also acted as final arbiter of disputes between T. N. T. and M. & M. on the division of functions between the two organizations in forming "independent" unions at the request of employers. It was after such dispute had been submitted to Van Norman that Ryerson was assigned to T. N. T. to act as liaison officer between T. N. T. and M. & Al. in directing the formation of the Independent and of other groups pursuant to T. N. T. formula. Southern Californians did not rely solely on the reports of Van Norman and T. N. T.'s staff for assurance as to the wisdom of its investments in T. N. T., for on two occasions it retained the services ,of outside investigators to examine the extent of T. N. T.'s membership and to take inventory, and appraise the results, of its activities. The first investigation was conducted early in 1938 by Harold L. Pierce, who interrogated all employees concerning the character and extent of their work and to whom Rittenhouse gave a full and accurate ac- 'count of his activities as field organizer. Upon the conclusion of his survey, Pierce prepared and submitted to Southern Californians a report of his findings and recommendations. Although requested by counsel for the Board to produce the report, both T. N. T. and Southern Californians claimed that they had been unable to find the original or a copy. A transcription of a portion of the stenographic notes of Marshall, T. N. T. stenographer, was thereupon introduced by coun- sel for the Board, concerning which Marshall testified that it was a correct transcription of dictation given to her by Pierce in March 1938. We find that the transcription is that of the report prepared by Pierce and submitted to Southern Californians. The report cov- ered in detail the labor-relations activities of T. N. T.; pointed to T. N. T.'s success in dealing with employers who had come to it "when apparently all other organizations had failed them"; called attention to "leaks of confidential information" on the "coordinating activities" of Southern Californians and T. N. T.; and concluded that T. N. T. "is a very valuable agency if it is given opportunity for impartial carrying on of the work already started under proper guidance and budgets." The second investigation, conducted in the summer of 1938 in the same manner as, but more thoroughly than, the first, was occasioned, according to the undenied testimony of an official of Southern Cali- fornians, by a difference of opinion among the members of the board SUN TENT-LUEBBERT COMPANY 85 of directors on whether T. N. T. should be permitted to continue its work in forming and guiding "independents." Although a report was again prepared for Southern Californians,, it was not produced at the hearing, each organization repeating the claim of unsuccessful search. It is reasonable to assume, and we find, that the second report dealt with all activities undertaken and performed-by T. N. T., includ- ing particularly its work in connection with "independent" unions. No change in the character or scope of T. N. T.'s activities resulted from these reports, and Southern Californians continued its financial contributions without reservation until January 1939, when Southern Californians began to consider the wisdom of maintaining T. N. T. as a separate and dependent organization. According to his testimony, which we believe in this respect, as did the Trial Examiner, Randolph Van Nostrand, a member of Southern Californians' staff, was directed at that time by Southern Californians "to go over and make a survey of the situation, report back as to the advisability, either of carrying on with the financial contributions to the Neutral Thousands or aban- doning such contributions, or whether, in my opinion, it would be right for Southern Californians, Inc. to take over the work of The Neutral Thousands." In executing his assignment, Van Nostrand moved into 1'. N. T. offices and assumed direct supervision of its affairs. During his sojourn at T. N. T. offices, he discussed with Rittenhouse and Huff their work-with "independent" unions and directed them to compile for his consideration a comprehensive report on all their activities in that respect since their employment by T. N. T. On January 19, 1939, Van Nostrand prepared and submitted to the president and secretary of Southern Californians and to Van Norman a written analysis of his survey, from which the following are excerpts : Mr. Abbott acts as office manager and also is supposed to work with employers'in labor difficulties, where Huff or Rittenhouse work with employees. Messrs. Huff and Rittenhouse are handling independent em- ployee contacts and I have personally checked 6 companies where they have aided, employers and I have found their work very highly praised by management as well as by employees. * * * * * * The work with the independent employees is by far the best accomplishment of the organization and is almost wholly credited to Mr. Huff. I have a feeling that the present set-up and method of handling it is rather dangerous, but believe that a labor conciliation work that could be carried on would be very valuable. 433257-42-voi, 37--7 86, DECISIONS OF NATIONAL - LABOR RELATIONS BOARD My conclusion is that the saving factor of the situation is the employee work, * * - *. In the event T. N. T. continues as an arm of the S. C. I., I suggest a program based on fundamental Americanism with the -emphasis on personal freedom. Some steps have already been taken to make T. N. T. a clearing house for information in connection with subversive activity , industrial disputes and allied subjects. * * - * On March 1 , 1939, Southern Californians, at its annual meeting, enunciated a program for the ensuing year embodying all the ele- ments which had characterized the work of T. N.T. and M. & M. On March 15 , 1939, Southern Californians withdrew its support from T. N. T., and Ochs, Rittenhouse, and Huff were employed directly by Southern Californians. We find that Southern Californians , by its financial support of M. & M. and T. N. T. and by its supervision and direction of their affairs, , sponsored the formation of the Independent , controlled its administration , and contributed financial support to it. (4) Participation of the Service in the administration of the Independent In its answer, the Service admitted that it was organized and was being wholly supported by Southern Californians but denied that it had committed any of the unfair labor practices alleged in the com- plaint. Southern Californians averred in its answer that the func- tion of the Service had been "to advise employees with respect to, their rights under the law and to aid in social , recreational and. related activities." According to the testimony of Rittenhouse , which we believe, as did the Trial Examiner, and which is supported by documentary evidence, the Service was brought into existence by Southern Cali- fornians under the following circumstances : After T. N. T. had been abandoned , Van Nostrand directed Rittenhouse and Huff to establish a new entity through which they could continue to super- vise and keep , alive "independents" already established pursuant to the T. N. T. formula and explained to them that he would partici- pate in the determination of policy for, and in the direction of the affairs of, the projected organization. Thereupon, Rittenhouse and Huff formed a partnership under the name of "Employees Advisory Service" and moved into new headquarters . It is undisputed that the salaries of Rittenhouse and Huff and all expenses incurred by the Service were paid by Southern Californians and that Southern Californians has directed and controlled the affairs of the Service and has been fully informed of its activities. SUN TENT-LUEBBERT COMPANY 87 As is apparent from a memorandum from Van Nostrand to Southern Californians, dated March 24, 1939, the change of organizational identity did not alter the nature of the pursuits to which Rittenhouse and Huff had devoted themselves for T. N. T. As in the past, they continued to confer with employers, to form "independent" unions and -allied organizations, and to direct their affairs pursuant to the program developed- by T. N. T. There is no disagreement' concerning the fact that Huff proceeded with his work as "impartial party" and "business agent" for the Independent; that he exerted considerable effort to keep it alive in'the face of renewed drives by the Textile Workers and the Upholsterers; and that until shortly before May 16, 1939, when its members voted to withdraw from the Independent, it used the headquarters of the Service without cost as a meeting place. According to the uncontroverted testimony of Rittenhouse and Huff, which we believe, as did the Trial Examiner, after the respond- ents had been notified in May or June 1939, of the filing of charges in this proceeding; Van Nostrand instructed the two men "to lay off the Independent unions, have nothing to do with them, and not say any more" to the employees "than the employer can" and "as quickly as possible turn the independent unions into clubs or societies or associations ..." We find that the Service, aided by Southern Californians, inter- fered with the administration of the Independent and contributed support to it. (5) Participation of the Club in the formation and support of the Independent There is no controversy concerning the fact that canvas-company officials discussed the Independent at meetings of the Club; that the Club convened at T. N. T. headquarters on May 9, 1938, to consider business "of vital importance to the entire industry"; that the Club joined Southern Californians as an institutional member on April 20, 1938, and resigned in March 1939; and that it was charged with legal fees incurred by the canvas companies in connection with the negotia- tion of the second contract with the Independent. With respect to the first two items of evidence, there is no showing that the-Club took any official action concerning the Independent or T. N. T. or that the Club's real purpose, or its business generally, was directed to the handling of questions dealing with the labor relations of the employees of its members. While the Club's membership in Southern Californians is evidence of its ostensible official support of the Independent, the record does not show that the Club paid the required'dues out of its general funds or that it assessed all members for such payments; the evidence merely shows that the canvas com- 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD panies paid over to the Club monthly sums calculated, in accordance with the dues requirements of Southern Californians,, on the basis of the number of persons in their employ, and that the Club, which was billed by Southern Californians, remitted to Southern Californians the monies thus paid to it by the canvas companies. As for the legal fee charged to the Club, it is clearly established by the record that, although the Club was billed for this item, the canvas companies in fact transmitted the entire amount of the fee to the Club. In view of the state of the record, we agree with the Trial Examiner and do not find that the Club interfered with the administration of the Independent or contributed support to it. (6) Conclusions as to the participation of all the respondents (except the Club) in the formation, administration, and support, of the Independent The canvas companies contend in their brief before the Board that the evidence is insufficient to^support the allegations of the complaint as to them. M. & Al. and-Southern Californians argue in their briefs that they cannot properly be found to have contravened the Act because, being "civic" organizations, they are not "employers" within the meaning- of the Act and are, hence, not subject to the Board's jurisdiction. Al. & Al. claims, moreover, that, conceding arguendo the Board's jurisdiction over it, the evidence is inadequate to connect it with the formation or administration of the Independent, as there is an affirmative showing that T. N. T., M. & M., and Southern Cali- fornians performed distinct and separate functions entirely incon- sistent with any combined or collaborative effort on their part to bring about the advent of the Independent. Therefore, Al. & M. nnaintains, if Ryerson engaged in any conduct with respect to the Independent, his acts are not attributable to M. & Al.. for they were foreign to its operations and were clearly outside-the scope of his authority as an employee of Al. & Al. Southern Calif ornians argues further that, even if the Act were applicable to it and assuming a showing of its direction and control of the affairs of T. N. T. and the Service, no order could validly be directed to it, since the record reveals no unfair labor practices by its beneficiaries. We are unable to agree with any of these contentions. The record shows beyond any doubt that the Independent came into being as the joint effort of all the respondents, except the Club, and as an integral part of a general scheme or plan of all the institutional re- spondents, except the Club, to lend their services to employers in effectuating the "open shop" program throughout Southern Califor- nia. The canvas companies, confronted in the fall of 1937 by immi- nently successful organizing campaigns of the Textile Workers and SUN TENT-LUEBBERT COMPANY 89 the Upholsterers, turned to M. & M., an avowed protagonist and active executor of the "open shop," for advice -and assistance in defeating the attempts of tlieir employees at' self-organization and collect>•ve bargaining. Toward thitt end, they became members of M. & M. and placed their labor problems in the hands of Ryerson, whoni we find from all the evidence to have acted at all times herein material within the scope of his duties as a member of M. & M.'s industrial relations staff. When Ryerson recommended as the most sat- isfactory solution a single "independent," to be formed and governed in accordance with T. N. T. formula, the canvas companies readily agreed and offered their cooperation and support to T. N. T.'s field organizers, thereby facilitating the establishment of the Independent and insuring the prompt conscription of their employees as members of the inchoate organization.21 Thereafter, with the aid of T. N. T. and pursuant to its established piocechure, the canvas companies suc- ceeded in imposing upon the Independent basic documents which disabled it from acting as the freely chosen representative of the employees. Moreover, by permitting Huff to assume the dual and conflicting roles of "business agent" and "impartial pai ty," a circum- stance which resulted, together with other elements of connivance, in a spurious collective bargaining relationship, the canvas companies, together with T. N. T., sought to insulate their employees against the influences of genuine labor organizations. With every phase of its existence and operations thus determined and controlled directly and indirectly by the canvas companies, the Independent could at no time seek to overcome the disparity of bar- gaining power between it and the canvas companies and to estab- lish itself as the true representative of the employees. In essence, it served merely as an instrumentality for enforcing the "open shop" among the canvas companies. It was out of gratitude for this result, and because of a desire for its perpetuation, that the canvas companies were impelled to join Southern Californians and to con- tribute to it the sum of $574.81. It was also, however, a recogni- tion of this result and of the function which the Independent was performing that finally led the employees to abandon the Independ- ent in May 1939. The part played by the institutional respondents, except the Club, namely, M. & M., T. N. T., Southern Californians, and the Service, 21 The uncontioverted evidence as to the preliminary meeting in the Mellus chair depart- ment, the vauous Corms of supervisory support accorded the Independent, the solicitation of members and dues on company time and property, and the free and unhampered use of working time for the conduct of the Independent 's affairs by its members generally and by Huff in particular would, of course , standing alone , amply support a finding of contraven- tion of Section 8 (2) of the Act by the canvas companies International Assn of Machin- ists v. N. L. If. B , 311 U. S 72 , H. J. Heinz Co. v. N. L. R. B , 311 U S. 514 ; N. L. R. B. v. Link-Belt Co ., 311 U. S 584. 9o DECISIONS OF NATIONAL LABOR RELATIONS BOARD in bringing the Independent into existence, and in causing it to re- main in existence, as an instrumentality of the canvas companies to enforce the "open shop" and thereby to defeat the rights guaranteed to the canvas companies' employees by the Act is clear and unmistak- able. M. & M., to whom the canvas companies first appealed, formu- lated the plan for combatting the efforts of the Textile Workers and the Upholsterers. T. N. T., in accordance with M. & M.'s instructions and under the general supervision and direction of Southern Cali- fornians, executed the plan and maintained a constant vigil over its results. The Service assumed the role formerly played by T. N. T. when the latter was abandoned by Southern Californians. Finally, Southern Californians approved the plan and provided the financial means for its continued execution. Thus, all institutional respondents but the Club participated as agents of the canvas companies in the scheme pursuant to which the Independent was formed, controlled, and supported. Consequently, although the institutional respondents may, as they claim, be so- called "civic" organizations, we nevertheless find them to be "em- ployers" of the employees involved herein, within the meaning of Section 2 (2) of the Act, as they acted "directly or indirectly" in the interest of the canvas companies, who are, of course, clearly "employers" within the meaning of the Act.22 Indeed, the history of the Independent constitutes but one of many similar chapters in the contemporary annals of the coordinated industrial relations activities of the institutional respondents. We find that all the respondents (except the Club), acting in concert, have dominated and interfered with the formation and administration of the Independent and have contributed financial and other support to it, thereby interfering with, restraining, and coercing the employees of the canvas companies in the exercise of the rights guaranteed in Section 7 of the Act. B. The discriminatory lay-off of Melvin Aubuchont Aubuchont was first employed by the respondent Sun Tent in June 1933 as a cutter's helper and thereafter performed various other tasks throughout the shop, on the floor and in the paint department, -until his promotion to the position of cutter. Except for a lay-off ,of 5 months during the first year of his employment, for a month's work at another plant in 1936, and for a few days when there was no work, he was employed continuously until December 6, 1937, -the, date of his lay-off, with which' we are here concerned. He was 22 N. L. R B. v. Grower-Shipper Vegetable Ass'n , 122 F ( 2d) 368 (C C. A. 9), enf'g as mod, Matter of Grower-Shipper Vegetable Association, et al and Fruit and Vegetable Workers' Union of California, No. 18211, 15 N L . R B. 322 SUN TENT-LUEBBERT COMPANY 91 admittedly a good- worker, and his rate of pay had been increased by about 20 cents an hour by the time of his lay-off. Early in 1937, Aubuchont joined the Textile Workers, which had at that time inaugurated its campaign among the canvas companies, and he thereafter successfully solicited for membership 16 of the 20 Sun Tent employees who had joined the Textile Workers by the time of his lay-off. At a meeting of the canvas-company employees held in the Mellus chair department toward the end of November 1937 for the purpose of promoting the Independent, and in the presence of the foreman under whom he worked and at whose behest he had attended, Aubuchont alone openly opposed as "more or less a fake union" the organization proposed by Rittenhouse and Huff ; talked disparagingly of T. N. T.; and stated that the Textile Workers was "the best organization for the workers to get into." Soon thereafter, he failed to attend the first meeting of the Independent, for which a notice signed- by his foreman and reading "Be there or else-" had appeared on the plant time clock. On December 6, 1937, William M. Luebbert, treasurer of Sun Tent and its official directly in charge of production, informed Aubuchont that he was being laid off "because of the slackness of, work" and that he would be recalled later. Only four other employees were laid off at that time, all of them members of the Textile Workers. Of the employees retained, whose work Aubuchont could have, and had in past years, performed, several were junior to him in point of service. A new employee was hired on February 1, 1938, as a cutter's -helper, a position occupied by Aubuchont before he became a cutter. On February 7, 1938, the date of the first agreement with the Inde- pendent, Aubuchont was restored to his employment, at which time he was compelled to join the Independent upon the representation of his foreman that Sun Tent had become a "closed shop" plant. The foregoing findings are based upon Sun Tent's records and upon the uncontradicted testimony of Aubuchont, which is in several respects corroborated by the testimony of Griffith, president -of the Independent, and by that of Rittenhouse and Huff, all of which ,sources we, like the Trial Examiner, credit. Aubuchont claimed that, if business was in. fact slack, he should have, in accordance with Sun Tent's policy, been assigned to other available work or a system of rotation, applied at other times, should have been followed. Luebbert, who had informed Aubuchont of his lay-off, testified that Aubuchont "had done everything from sweeping the floor to cutting"; that-he rated him as at least "a fair average worker or better," stating that he considered two other cutters to be superior; .that Aubuchont was the only cutter, laid off at that. time; that others 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with less seniority, whose work Aubuchont had previously performed, had not been laid off; that he could not explain why a cutter's helper with considerably less seniority had been retained in preference to Aubuchont ; and that the only reason for hiring a new employee on February 1 was the need for a cutter's helper. Joseph S. Kirschberg, vice president of Sun Tent, testified that he considered Aubuchont "a very good boy," against whom he had "not a thing in the world"; that Sun Tent's business was seasonal, the season starting normally in January but having started a month late in 1938; and that all the canvas companies customarily laid off employees at the end of the season, except that in 1938 a system of rotation of work was inaug= urated: under the contract with the Independent. We are unable to credit Kirschberg's statement that the rotation system was introduced for the first time after the initial contract with the Independent, and we accept as true the testimony of Aubuchont that the system had been in effect at Sun Tent at the time of his lay-off, for the agreement as executed provided merely for the continuance of the system at those plants where it had already been in operation and did not require its introduction for the first time at any of the canvas com- panies. Kirschberg did not, moreover, explain the selection of Aubuchont for lay-off, rather than any other employee with less seniority, or the failure to assign him to other available work for which he was qualified. Sun Tent's failure to produce records in support of its contention that business was slack at the time of Aubuchont's lay-off ; the uncon- troverted showing that only five employees, all of whom were mem,- bers of the Textile Workers, were laid off at that time; and Kirsch- berg's testimony that the 1938 season started later than usual lead us to conclude that Sun Tent has failed to show that its production was in fact low on December 6, 1937, the date of Aubuchont's lay-off. Moreover, assuming an adequate showing of lack of business, we find that Sun Tent has failed entirely to explain its retention of junior employees, its failure to follow the system of rotation of work, and its hiring of a new employee before Aubuchont's recall to work. We consequently find from the uncontroverted evidence concerning his advocacy on behalf of the Textile Workers, his outspoken oppo- sition to the Independent, and the circumstances immediately sur- rounding his lay-off and his recall to work that Aubuchont was laid off during the formative period of the Independent and was not rein- stated until after the consummation of the first contract solely for the reason that Sun Tent sought to remove from the plant the one influence which might interfere with or disrupt its plans for the prompt emer- gence of the Independent as the answer to the campaign of the Textile Workers. Our finding in this respect is further supported by evi- SUN TENT-LUEBBERT COMPANY 93 deuce, which we believe, that after his reinstatement Aubuchont's activities on behalf of the Textile Workers were closely watched, by the plant foreman and by Huff, the latter having on one occasion warned Aubuchont that his continued support of the Textile Workers would result in the same penalty he had already suffered on December 6, 1937. We find that, by the lay-off of Aubuchont, the respondent Sun Tent has discriminated in regard to his hire and tenure of employment, discouraged membership in the Textile Workers, and encouraged mem- bership in the Independent, and has thereby interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The complaint alleged that all the respondents, acting in concert, discriminated against Aubuchont in regard to his hire and tenure of employment. The record does not support this allegation and we consequently find, in agreement with the Trial Examiner, that the respondents other than Sun Tent have not discriminated against Aubuchont. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondents (except the Club), described in Section III above, occurring in connection with the opera- tions of the respondent canvas companies, 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. TIIE REMEDY Having found that all the respondents (except the Club) have- engaged in certain unfair labor practices, we shall order them to cease and desist therefrom, and to take certain affirmative action which we find will effectuate the policies of the Act. We have found that all the respondents (except the Club), acting in concert, have dominated and interfered with the formation and administration of the Independent and have contributed support to it. We shall, accordingly, direct each of them to cease and desist from these unfair labor practices and from the conduct which resulted in the concerted violations ofthe Act. Thus, we shall direct the canvas companies, who jointly, and in various ways, enlisted the aid of the institutional respondents in introducing and supporting the Independent as an 'instrumentality for defeating the rights guaranteed to their employees in the Act, to cease and desist from dominating and interfering with the administration of the Independent, from 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD confederating or conspiring with each other, or with the institutional respondents, or with any other individual- or group, for similar un- lawful purposes, and from contributing support to such organizations for similar unlawful purposes. In addition, in order to free their employees from the continuing effects of the unfair labor practices found, we shall direct the canvas companies to disestablish com- pletely,23 and to withdraw recognition from, the Independent as the representative of any of their employees, and to cease giving effect to any contract or arrangement entered into with the Independent as such representative, without prejudice, however, to the assertion of any legal rights acquired by the employees under such agreements .21 Thus, we shall also direct the institutional respondents, who, acting directly and indirectly in the interest of the canvas companies, variously aided and assisted in'interfering with the self-organization of the employees of the canvas companies by establishing and sup- porting the Independent, and directing its affairs, to cease and desist' from such unfair labor practices and from the conduct which brought about the concerted violations. Moreover, as we have found, the unfair labor practices committed by the respondents with respect to the employees of the canvas com- panies were in fact executed as an integral part of a coordinated scheme or plan designed by the institutional respondents as a means of assisting all employers of Southern California in interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed to such employees under the Act. Such coordinated plan, if again applied, will inevitably bring about a further concerted vio- lation of the Act, similar in kind to the unfair labor practices found. Since the institutional respondents have publicly and persistently in- vited all employers of Southern California to enlist their services in introducing such plan among their employees, it is reasonable to assume, and we find, that the institutional respondents are fully equipped for, and ready to proceed with, the commission of similar unfair labor practices with respect to the employees of other employers, unless ordered to refrain from so doing.25 We, therefore, deem it necessary to prevent the, commission of such similar unfair labor practices by the institutional- respondents, acting in the interest of 23 As already stated , although the Independent was apparently abandoned by a vote of its membership ' in May 1939, it has in fact , according to the testimony of Griffith never been dissolved as a corporate and legal entity. It may, consequently , be revived unless the can- vas companies are directed to disestablish it completely. ?,'National Licorice Company v. N. L. R. B., 309 U S. 350. 21 See National Labor Relations Board v. L'xprese Pub 'ishing Co , 311 U S 426 . Although T. N. T. became inactive in March 1939 , shortly , before the Service was formed, it may nevertheless be revived by Southern Californians or any other group at any time with respect to the,Service , it is clear that Rittenhouse is no longer employed by it as a partner but such circumstance does not operate to disable the Board from directing an order to-the' partnership . Cf. N L. R. B. v. Colten, 105 F. ( 2d) 179 ( C. C. A. 6). SUN TENT-LUEBBERT COMPANY 95- other employers, and we shall, accordingly, order such respondents to cease and desist from in any other manner, severally, jointly, or in concert with other employers, interfering with the rights guaran- teed to employees in Section 7 of the Act. Toward the same end, we shall direct the institutional respondents to notify all persons to whom they,have offered their illegal plan that they have in effect abandoned such plan. While the complaint alleged that all the respondents had dis- criminated against Melvin Aubuchont with respect to his hire and tenure of employment, we have found that only the respondent Sun Tent has engaged in such discrimination. We shall, accordingly, dismiss the complaint in this respect as to all respondents, save Sun Tent, and shall order Sun Tent to make whole Aubuchont for any loss of pay he may have suffered by reason of his discriminatory lay- off by payment to him of a sum of money equal to that which lie would normally have earned as wages from December 6, 1937, to February 7, 1938, less his net earnings during that period .21, Since the Club has not engaged in unfair labor practices, we shall dismiss the complaint as to it. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Textile Workers Union of America, Local No. 99, C. I. 0., Upholsterers International Union of North America, Local No. 15, A. F. of L., and Independent Canvas Workers Union, Inc., are labor organizations, within the meaning of Section 2 (5) of the Act. 2. The respondents Southern Californians, Inc., The Neutral Thousands, G. L. Huff and Clay C. Rittenhouse, doing business as Employees Advisory Service, and Merchants and Manufacturers As- sociation of Los Angeles are employers of the employees involved herein, within the meaning of Section 2 (2) of the Act. 3. By dominating and interfering with the formation and adminis- tration of the Independent and by contributing financial and other support to it, all the respondents (except the Club) have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 2' By net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for Sun Tent, which would not have been incurred but for his unlawful lay-off and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Bi otherhood of Carpenters and Joiners of America , Lumber and Sawmill Workers Union, Local S,590, 8 N. L R B. 440. Monies received for work performed upon Federal , State, county , municipal, or other work-relief projects shall be considered as eainmgs . See Republic Steel Corporation v. N L R B, 311 U S. 7. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4: By interfering with, restraining, and coercing the employees of the canvas companies, in the exercise of the rights guaranteed in Section 7 of the Act, all the respondents (except the Club) have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. By discriminating in regard to,the hire and tenure of employ- ment of. Melvin Aubuchont, the respondent Sun Tent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 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. The respondents Mellus, Downie, United, Southern Californians, T. N. T., the Service, and M. & M. have not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. 8. California Canvas Jobbers Club has not engaged in unfair labor practices 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 : . 1. Each of the respondents, Sun Tent-Luebbert Company, Mellus Brothers & Company, Inc., Downie Brothers, Inc., and United Tent and Awning Company, Ltd., all of Los Angeles, California, and the respective officers, agents, successors, and assigns of each of them, shall : a. Cease and desist from : (1) Dominating or interfering with the administration of Inde- pendent Canvas Workers Union, Inc., or with the formation or admin- istration of any other labor organization of their employees and from contributing financial or other support to said Independent Canvas Workers Union, Inc., or to any other labor organization of their respective employees; ,(2) Giving effect to the contract of February 1, 1939, with Inde- pendent Canvas Workers Union, Inc., or to any extension, renewal, modification, or supplement thereof, or to any superseding contract; (3) In any manner combining, confederating, or conspiring, di- rectly or indirectly, with each other or with Southern Californians, Inc., The Neutral Thousands, Inc., G. L. Huff and Clay C. Rittenhouse, doing business as Employees Advisory Service, Merchants and Manu- facturers Association of Los Angeles, or any other individual or group, for the purpose of interfering with, restraining, or coercing SUN TENT-LUEBBERT COMPANY 97 their respective'employees in the exercise of the rights guaranteed in Section 7 of the Act; (4) In any manner contributing financial `support to, or soliciting the aid and assistance of, Southern Californians, Inc., The Neutral Thousands,-Inc., G. L. Huff and Clay C. Rittenhouse, doing busi- ness as Employees Advisory Service, Merchant and Manufacturers Association of Los Angeles, or any other individual or group, for the purpose of interfering with, restraining, or coercing their respec- tive employees in the exercise of the rights guaranteed in Section 7 of the Act; (5) In any other manner interfering with, restraining, or coercing' their employees in the exercise of the right to self-organization, to form, join, and assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the Act. b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Withdraw all recognition from Independent Canvas Workers Union, Inc., as the representative of any of their employees for the purposes of dealing with each or all of the canvas' companies concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment, and completely disestablish Independent Canvas Workers Union, Inc., as such representative; (2) Post immediately in conspicuous places at their respective plants, and maintain for a period-of at least sixty (60) consecutive days from the date of posting, notices to their respective employees stating (1) that the canvas companies will not engage in the conduct from which they are ordered to cease and desist in, paragraph la (1) to (5), inclusive, of this Order ; (2) that the canvas companies will take the affirmative action set forth in paragraph lb (1) ; and that the contract of February 1, 1939, with Independent Canvas Workers, Inc., and any extension, renewal, modification, or supple- ment thereof, will not be given effect by any of the canvas companies. (3) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, what steps each of the canvas companies has taken to comply herewith. 2. The respondent Sun' Tent-Luebbert ,Company, Los Angeles, California, its officers, agents, successors, and assigns, shall, in addi- tion, cease and desist from discouraging membership in Textile Workers Union of America, Local No. 99, C. I. 0., or any other labor organization, of its employees, by discriminating in regard to hire 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or tenure of employment, or any term or condition of employment; make whole Melvin Aubuchont for any loss of pay he may have suffered by reason of his discriminatory lay-off by payment-to him of a sum of money equal to that which he would normally have earned as wages from December 6, 1937, to February 7, 1938, less his net earnings during said period; and insert in the notice which it is directed to post in paragraph lb (2) of this Order the state- ment that it will not engage in the -conduct from which it is herein ordered to cease and desist, that its employees are free to become and remain, members of Textile Workers Union of America, Local No. '99, and -that the respondent Sun Tent will not discriminate against any employee because of membership in or activity on behalf of that organization. 3. Each of the respondents, Southern Californians, Inc., The Neu- tral Thousands, Inc., G. L. Huff and Clay C. Rittenhouse, doing business as Employees Advisory Service, and Merchants and Manu- facturers Association of Los Angeles,. and the respective officers, di- rectors, partners, agents, successors, and assigns of each of them, when acting severally, jointly, or in concert with the canvas com- panies, or any other employer, as agent for or in the interest of, the canvas companies, or any such other employer, shall: a. Cease and desist from: (1) Dominating or interfering with the administration of Inde- pendent Canvas Workers Union, Inc., or with the formation or ad- ministration- of any_ other labor organization of the employees of the canvas companies, or any other employer, and from contributing financial or other support to said Independent Canvas Workers Union, Inc., or to any other labor organization of the employees of the canvas companies, or of any other employer; (2) Soliciting and collecting funds from the canvas companies, or any other employer, to be used in whole or in part for the purpose of interfering with the rights guaranteed in Section 7 of the Act; (3) In any other manner interfering with, restraining, or coercing the employees of the canvas companies, or of any -other, employer, 'in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid and pro- tection, as guaranteed in Section 7 of the Act; b. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Immediately send notices in writing through the United States -mails to • all its members, contributors, supporters, and those carried SUN TENT-LUEBBERT COMPANY 99 on its mailing list, including the canvas companies, stating that each of them will not engage in the conduct from which it is ordered to cease and desist in paragraphs, 3a (1) to (3) inclusive; (2) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days-from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and- it hereby is, dis- missed against California Canvas Jobbers Club. AND IT Is FURTHER ORDERED that the complaint, in so far as it alleges violations of Section 8 (3) of the Act, be, and it hereby is, dismissed against all the respondents but Sun Tent. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Order.