Donnelly Garment Co.

National Labor Relations Board - Board Decisions

Mar 6, 1940

21 N.L.R.B. 164 (N.L.R.B. 1940)

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