H. R. Webb Neckwear and Manufacturing Co.

National Labor Relations Board - Board DecisionsFeb 29, 1940

20 N.L.R.B. 1042 (N.L.R.B. 1940)

In the Matter of H. R. WEBB NECKWEAR AND MANUFACTURING COM- PANY and NECKWEAR & ROBE WORKERS UNION LOCAL #254 OF ST. Louis JOINT BOARD, AMALGAMATED CLOTHING WORKERS OF AMERICA, C. I. 0. Cases Nos. C-1186 and R-77L.-Decided February 29, 1940 Men's Furnishings Manufacturing Industry-Interference, Restraint, and Coercion : statements of officials and supervisors disparaging Union and dis- couraging membership therein ; openly collaborating with and aiding member- ship drive of one of two rival labor organizations ; threatening to cease opera- tions if employees failed to join favored labor organization ; entering into closed- shop contract with favored organization not representing majority of em- ployees-Unit Appropriate for Collective Bargaining : production employees, ex- cluding clerical and leather workers and officials-Representatives: proof of choice : membership authorization cards ; change in choice of representatives as result of unfair labor practices, given no effect-Collective Bargaining : refusal to bargain with Union because of desire to run business without interference; rebuffs and evasive tactics ; absence of intention to recognize Union ; contracting with favored rival union not representing majority ; employer ordered, upon request, to bargain with Union having majority in appropriate unit, and cease bargaining with favored labor organization-Closed-Shop Contract: with assisted labor organization which received its members as a result of employer 's unfair labor practices and at no time represented a majority of employees, void and of no effect ; employer ordered to cease giving effect to-Discrimination : lay-off of two employees for failure to join favored labor organization ; discharge of one employee for refusal to work in protest against unfair labor practices; mass discharge , pursuant to illegal closed-shop contract, of employees retaining membership in Union-Reinstatement : ordered-Back Pay: awarded-Investi- gation of Representatives : petition for, dismissed in view of order to bargain. Mr. Bernard Bralove and Mr. William Avrutis, for the Board. Mr. Edwin H. Stern, of St. Louis, Mo., for the United. Messrs. Bryan Purteet, Joseph A.'Lennon and Frank Casserly, by Mr. Bryan Purteet and Mr. Frank Casserly, of St. Louis, Mo., for the Amalgamated. Mr. C. P. Schafer, of St. Louis, Mo., for the respondent. Mr. Leonard Lindquist and Mr. Ralph S. Rice,, of counsel to the Board. 20 N. L. R. B., No. 101. 1042 H. R. WEBB NECKWEAR AND MANUFACTURING 'COMPANY 1043 DECISION AND ORDER STATEMENT OF THE CASE On February 10, 1938, Neckwear & Robe Workers Union Local #254 of St. Louis Joint Board, Amalgamated Clothing Workers of America, herein called the Amalgamated, filed with the Regional Di- rector for the Fourteenth Region (St. Louis, Missouri) a petition alleging that a question affecting commerce had arisen , concerning the representation of employees of H. -R. Webb Neckwear and Manu- facturing Company,' St. Louis, Missouri, herein called the respondent, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On March 23, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, or- dered an investigation and authorized the Regional Director to con- duct it and to provide for an appropriate. hearing upon due notice. On April 28, 1938, the Regional Director issued a notice of hear- ing, and thereafter a notice of change of place of hearing, copies of which were duly served upon the respondent, the Amalgamated, and United Garment Workers of America, herein called the United. Pursuant to the notices, a hearing was held on May 5, 1938, at St. Louis, Missouri, before T. R. Bland, the Trial Examiner duly designated by the Board. Thereafter, upon charges and amended charges duly filed by the Amalgamated, the Board issued a complaint, dated September 27, 1938, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. With respect to the unfair labor practices the complaint alleged, in substance, that the respondent (1) on and after February 9, 1938,2 refused to bargain with the Amalgamated although a majority of the respondent's production employees comprising an appropriate unit had designated the Amalgamated as 'their bargaining repre- sentative; (2) on various dates therein set forth, discouraged mem- bership in the Amalgamated and encouraged membership in another 'Incorrectly designated as "H. R .. Webb, Neckwear Manufacturing Company" in the petition and order directing investigation and hearing . The title of the case was amended at the hearing to designate the respondent correctly. e The complaint was amended at the hearing to substitute the date "February 9; 1938" at this point, in place of "January 29, 1938." 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . labor organization by discriminating in regard to the hire and tenure of employment of Katherine Foti, Betty Tiefenbrun, Catherine Pieper, and Mary Pieper; a (3) from on or about January 15, 1938, urged and warned its employees to withdraw their membership in the Amalgamated and to join the United, and made membership in an organization not of their own choosing a prerequisite to continued employment; and, (4) by the foregoing and other acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the re- spondent, the Amalgamated, and the United. Pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations- Series 1, as amended, the Board ordered that the cases be consolidated for all purposes. On October 14, 1938, the respondent filed its answer denying that it had engaged in the unfair labor practices alleged in the complaint. Thereafter, upon second amended charges duly filed, the Board, by its Regional Director, amended its complaint to include an allegation that the respondent had discriminated in regard to the hire and tenure of employment of Helen Siesener, thereby discourag- ing membership in the Amalgamated and encouraging membership in another labor organization. Copies of the amendment to the com- plaint were duly served upon the respondent, the Amalgamated, and the United. Pursuant to notice, a hearing was held at St. Louis, Missouri, on November 28 and 29, 1938, before Earl S. Bellman, the Trial Ex- aminer duly designated by the Board. During the hearing of May 5, 1938, and the hearing of November 28 and 29, 1938, both the Board and the Amalgamated were represented by counsel, and the United by its general organizer; all participated in both hearings. The respondent was represented by counsel and participated in the hear- ing of November 28 and 29, 1938. . Full opportunity to be heard, to examine and to cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties at each hearing. At the opening of the hearing on November 28, 1938, the parties stipu- lated that the respondent's answer filed October 14, 1938, should con- stitute. a general denial of the allegations of the amendment to the complaint. It was further stipulated that all evidence taken at the hearing on, May 5, 1938, should be part of the record of the hearing commencing November 28, 1938, and that all parties should have the privilege of producing further evidence on any matter concerning which testimony previously had been given. During the hearing on O There are slight variations in spelling of the names of these persons at various stages in the proceeding. FI. R. WEBB NEOKAVEAR AND MANUFACTURING !COMPANY 1,045 November 28, 1938, counsel for the Board moved that the pleadings be conformed to the proof. This motion was granted by the Trial Examiner.' During the course of both hearings, the Trial Examiners ruled on various other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiners and -finds that no prejudicial errors were committed. The rulings are hereby affirmed. - On December 12, 1938, the respondent filed a brief which the Board has considered. On February 1, 1939, Trial Examiner Bellman filed his Intermediate Report, copies of which were duly served upon all parties, finding that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act, and recommending among other things : (1) that the respondent cease and desist from the aforesaid unfair labor practices; (2) that it cease encouraging membership in and giving effect to a closed-shop contract with the United; (3) that, upon request, it bargain collec- tively with the Amalgamated as exclusive representative of the em- ployees in a unit therein found to be appropriate, with respect to wages, hours, and other conditions of employment; and (4) that it offer reinstatement with back pay to five employees. Thereafter the respondent filed exceptions to the Intermediate Report. The parties although advised of their opportunity to request oral argument before the Board did not do so. The Board has considered the exceptions to the Intermediate Report and, save as they are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT H. R. Webb Neckwear and Manufacturing Company, a Missouri corporation, with its plant and office located at St. Louis, Missouri, is engaged in the manufacture, sale, and distribution of men's neck- wear, suspenders, belts, supporters, garters, and handkerchiefs. The principal raw materials used by the respondent are wool, cotton, rayon, webbing, leather, and silk, approximately 80 per cent of which are obtained from sources outside the State of Missouri. The value of the products sold by the respondent in 1937 was $40,000, and approximately 85 per cent of such products were shipped to destinations outside the State of Missouri. At the time of the alleged unfair labor practices, the respondent employed 11 persons. 283031-41-vol. 20--67 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED Neckwear & Robe Workers Union Local #254 of St. Louis Joint. Board, Amalgamated Clothing Workers of America, is a labor organ- ization affiliated with the Committee for Industrial Organization, admitting to membership production employees of the respondent,. excluding clerical and leather workers, supervisors, and officials. United Garment Workers of America is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the respondent. HI. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Since about 1918 the respondent has had bargaining relations with various unions and on February 25, 1933, a contract was -executed by the respondent and Neckwear & Robe Workers Union Local No- 14350,6 affiliated with the American Federation of Labor. The con- tract was for a year's duration and was automatically renewable "until dissolved by mutual consent." In the spring of 1935 Neckwear & Robe Workers Union Local No. 254 of St. Louis Joint Board, Amalgamated Clothing Workers of America, then an affiliate of the American Federation of Labor, took over the membership of Local No. 14350, which thereupon went out of existence. In August 1936 Amalgamated Clothing Workers of America was suspended by the American Federation of Labor, and a little over a year later was expelled therefrom. At all material times during this proceeding, the Amalgamated was affiliated with the Committee for Industrial Organization. During the period from 1935 to 1938, a majority of the respondent's employees were members of the Amalgamated, and the respondent recognized it as bargaining representative of the employees. Although no written agreement was entered into by the parties, the Amalgam- ated contends that it became a party to the contract between Local No. 14350 and the respondent, since it was the successor organization to Local No. 14350. Although the respondent did not disavow the contract it now claims that the contract automatically expired when Local No. 14350 was absorbed by the Amalgamated. It is clear. that the respondent continued to observe the wage scale established in the contract with Local No. 14350, and both the respondent and the Amalgamated sent letters to the respondent's customers and to local Now the Congress of Industrial Organizations. Referred to at various times in the record as "Neckwear Makers Union ," "Neeiiwear Workers Union ," and "Neckwear & Robe Workers Union ." It was stipulated that all such designations applied to ' the same organization. Si. R. WEBB NECKWEAR AND MANUFACTURING COMPANY 1047 unions throughout the country, advising that the respondent ran a union shop. In response to the respondent's request, the Amalgam- ated also furnished the respondent with its labels until March 1938. In November 1937 Edwin H. Stern, an organizer for the United, approached H. R. Webb, president of the respondent, to discuss organizing the employees on behalf of the United, and about the same time, the respondent's officials launched a campaign to induce the employees to join the United. William Klunk, a director and secretary of the respondent, suggested to several of the employees. that the respondent should use A. F. of L. labels since "nobody wanted" the Amalgamated label, and the respondent was losing customers as a result. Stating that the respondent was "not going to use C. I. O. labels," e Klunk urged the employees to consider joining the United. About the same time Webb suggested to Fore- lady Laura Meyer that business had fallen off because the respondent did not use A. F., of L. labels. He then expressed a determination to "see what could be done" about getting such labels. On December '231 1937, Webb called Mary Pieper, an Amalgamated member, to the office and reminded her that Klunk previously had urged the em- ployes to consider joining the United. He then asked Pieper's views on the matter and terminated the conversation by requesting her to "think it over and talk to the girls." On- January 20, 1938, during the noon hour, Klunk called the em- ployees to a meeting in the plant, at which Stern exhorted them to join the United, and relinquish their membership in the Amalgamated. Stern suggested that this be done immediately so that Webb and Klunk might advise the customers of the change in the employees' affilia- tion on their proposed sales trip. He claimed that as members of the United, the employees would obtain more work, since A. F. of L. labels. would be available to the respondent. Catherine Pieper testified that Webb also addressed the employees and stated among other things that if the employees failed to join the A. F. of L., he might as well "close, his shop." Other employees corroborated Pieper's testimony as to. this incident. Webb admitted speaking to the employees, but claimed that his remarks were limited to the observation that he was not in- terested in which of the two unions the employees joined. We find that Webb made the statement attributed to him by Pieper. At the• end of the meeting, Mamie Lampe,, another United representative who was present, suggested that the employees talk the matter over and' sign application cards for the United before they went home. Later Klunk offered Catherine Pieper 7 and Helen Siesener United cards to, 6 After its expulsion from the American Federation of Labor , the Amalgamated 's labels= contained no reference to the affiliation of the Amalgamated. 7 P.leper refused to sign and protested against the respondent 's having permitted Stern, to speak to the employees in the shop. 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sign, and on February 8, 1938, Forelady Meyer solicited Katherine Foti to join the United. Within 2 'days after Stern and Lampe visited the plant , six 8 of the respondent 's employees signed United application cards with Klunk as a witness. We find that the respondent by assisting and participating in the United's organization drive, by threatening to shut down the plant if the employees failed to join the United, and by otherwise soliciting and encouraging membership in the United and discouraging member- ship in the Amalgamated has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The refusal to bargain 1. The appropriate unit The Amalgamated contends that the respondent's production em- ployees, excluding clerical and leather workers and officials, consti- tute a unit appropriate for the purpose of collective bargaining. The respondent and the United, on the other hand, seek a unit of all em- ployees engaged in production work, including clerical and supervisory employees. All parties agree that seven employees 9 engaged in production work on neckwear, handkerchiefs, garters, and suspenders should be in- cluded in the appropriate unit. Aside from these seven, there are four other employees who under the contentions of one or more of the par- ties might be included in the unit. The respondent and the United contend that Forelady Meyer should be included, and the Amalgamated does not urge that she should not be deemed within the unit which it alleges to be appropriate. In addition to' her supervisory duties, Meyer trims neckwear and handkerchiefs, and fills orders. When performing certain kinds of production work, she is paid on a piece- work basis in the same manner as the other production employees. She joined the Amalgamated in 1935, and acted as shop stewardess io until she signed a United application in January 1938. We shall in- clude:Meyer in the appropriate unit. The respondent and the United assert , and the Amalgamated denies, that Lester Bohmeyer, Florence Bohmeyer, and William Klunk should be included in the appropriate unit. The major portion of Lester Bohmeyer's time is spent making belts and acting as salesman , although 8 William Flunk, Lester Bohmeyer , Florence Bohmeyer , Laura Meyer , Ida Creech, Bar- bara Bohn . Kiunk and Meyer are supervisory employees ; Florence Bohmeyer, a clerical employee; and Lester Bobmeyer , a salesman. e Foti , Slesener, Tiefenbrun , Catherine Pieper, . Mary Pieper , Bohn , and Creech. 10 As shop stewardess , Meyer's duties were to collect dues from other members of the Amalgamated , and to keep the respondent supplied , with union labels. H. R. WEBB -NECKWEAR AND MANUFACTURING ICOMPANY 1049 he occasionally assists in cutting suspenders, garters, and neckwear. He assists Webb and Munk in planning styles and making up sain- ples,•and receives a salary plus commissions on sales. Bohmeyer, being primarily it leather worker, has at no time been considered eligible for membership in the Amalgamated. Late in 1938 the leather market was depressed to the extent that the respondent ceased manufacturing its own belts and instead purchased belts for resale. There is no indi- cation in the record, however, that the respondent will not resume making belts when prices rise. Following the curtailment in leather work, Bohmeyer acted primarily as a salesman. Since Bohmeyer as a leather worker is not eligible for membership in the Amalgamated and as a.,salesman has interests and problems different from those of the production workers, we shall exclude him from the appropriate unit. Florence Bohmeyer, daughter of Webb and wife of Lester Bohmeyer, is the respondent's only regular office worker, and aids in handling the pay roll, billing, filing, and keeping books and social security records. She is paid a salary. On rare occasions she assists in production work for an hour or less at a time. We shall exclude Florence Bohmeyer from the appropriate unit. Klunk, secretary, director, and stockholder of the respondent, is manager of its shop and is paid a salary. He aids in planning styles and making up samples, cuts goods used for making neckwear and handkerchiefs, packs and fills orders, and also acts as a sales repre- sentative. For several years, Munk has acted as the respondent's representative in handling grievances presented by the employees. His duties include supervision of the employees. About 1935 Klunk joined the Amalgamated but after a few months withdrew, since he "didn't feel justified in being a member and working outside over the country and handling this other work." We shall exclude Munk from the appropriate unit. We find that the respondent's production employees, excluding clerical and leather workers and officials, constitute a unit appropri- ate for the purposes of collective bargaining, and that such unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effec- tuates the policies of the Act. 2. Representation by the Amalgamated of the majority in the appropriate unit The respondent intrczduced in evidence its pay-roll list for Feb- ruary 15, 1.938, showing eight employees to be within the appropri- ate unit at that time. The parties stipulated that the employees, on the list also were employed on January 15, 1938. Both the United 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Amalgamated introduced in evidence cards signed by em- ployees, designating the respective organizations as bargaining agent. The cards reveal that five of those employed in the unit between January 15 and February 15, 1938, were members of the Amalgam- ated, and three were members of the United. Meyer, Creech, and Bohn, the three employees who had signed United cards, did so only after the respondent's unfair labor practices, described above. Previous to signing United cards these three employees had been members of the Amalgamated. The three designations of the United, having resulted from the respondent's unlawful conduct, cannot be deemed to represent a free and untrammelled expression of the de- sires of the three employees. Accordingly, we are unable to give any weight to the United cards as evidence that the United represented the employees in question. As noted below, the respondent, during February and March 1938, discriminatorily discharged all of its employees who were members of the Amalgamated. The discharges were pursuant to a closed- shop contract with the United, which, as more fully appears in Sec- tion III, C, below, was illegal and void. Those discriminatorily dis- charged retained their status as employees for purposes of the Act, and the position of the Amalgamated as bargaining representative of the employees cannot be deemed to have been impaired by the respondent's unfair labor practices. We find that on January 15, 1938, and at all times thereafter, the Amalgamated was the duly designated representative of a majority of the employees in the appropriate unit, and pursuant to Section 9 (a) of the Act, was the exclusive representative of all the employees in such unit for the purposes of collective bargaining. 3. The refusal to bargain As. we have pointed out in Section III, A, above, the respondent promoted the United's membership drive by openly collaborating with and aiding the United's organizers; by threatening to cease operations if the employees failed to join the United; and by solicit- ing employees to join the United. On January 28, 1938, Richard Brazier, an Amalgamated organ izer, protested to Webb about the respondent's aid to the United. Webb rebuffed Brazier with the assertion that the respondent had no contract with the Amalgamated; that the Amalgamated had never done anything for the respondent; and that the Amalgamated had kept the wage scale too high. After Brazier reminded Webb that a majority of the employees were members of the Amalgamated, however, Webb agreed to consider a contract with the Amalgamated. H. R. WEBB NECKWEAR AND MANUFACTURING 'COMPANY1051 On February 3, 1938, Brazier presented a proposed agreement, but Webb stated that he was too busy to discuss it at that time and .requested that Brazier leave it with him. On February 7 and 8, 3.938, the respondent laid off two Amalgamated members, Catherine .and Mary Pieper, respectively. As noted below, both lay-offs were for the purpose of discouraging membership in the Amalgamated and encouraging membership in the United. Brazier protested to Webb on February 9, 1938, regarding the above lay-offs, whereupon Webb stated that he was going to cut down his working force as he pleased, and that Brazier should "go back and run the union" while he would "run the Webb Neckwear Company." When Brazier questioned Webb as to the proposed contract, Webb stated that he had "nothing to do in regard to" the contract and that he was going to "run his business any way he saw fit, without any interference" by the Amal- gamated. Brazier cautioned Webb that a refusal to discuss the agreement with the Amalgamated would result in bringing the mat- ter before the Board. Webb retorted that "he was running his busi- ness and that was all there was to it." On February 10, 1938, the Amalgamated filed a petition with the Board, pursuant to Section 9 (c) of the Act, requesting an investiga- tion and certification of representatives for the respondent's pro- Auction employees. A few days later, a representative of the Board conferred with Webb and Klunk concerning the petition. At this -conference and at a subsequent conference held on February 24, 1938, the latter being attended by Klunk, Stern, Brazier, and the Board's representative, the appropriate unit for collective bargaining was discussed in connection with the possibility of conducting an election for determining the employees' choice of a bargaining represent- ative. On March 12, 1938, after brief negotiations, the respondent en- tered into a closed-shop contract with the United,. and several of the employees who had retained their membership in the Amalgam- ated were notified to join the United or be discharged. Previous to entering into the contract, the respondent did not seriously ques- tion whether the United represented a majority of the employees, although it was well aware of the Amalgamated's claim for recogni- tion. In view of the circumstances, and particularly the respondent's previous aid to the United and unfair labor practices calculated to coerce the employees to join the United, we have no doubt that the respondent entered into the closed-shop, agreement of March 12 in order to avoid bargaining with the Amalgamated. Despite the re- spondent's unfair labor practices in its behalf, the United at no time represented a majority of the respondent's employees within an appropriate unit. It is clear therefore that the contract with the 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United does not fall within the proviso of Section 8 (3) of the Act, and thus is invalid." The closed-shop contract, in itself, constitutes unlawful aid and support of the United, and by entering into such contract, the respondent clearly manifested that it would not bargain collectively with the Amalgamated. In view of these circumstances, and having in mind the fact that the respondent was encouraging and aiding the United at the very time that the Amalgamated was seek- ing to bargain, we are convinced that neither on February 9, 1938, nor at any time during the negotiations with the Amalgamated, did the respondent intend to bargain collectively in good faith. We find that on February 9, 1938, and at all times thereafter, the respondent refused to bargain collectively with the Amalgamated as the representative of a majority of its employees within an appropri- ate unit, and thereby interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. C. The lay-offs and discharges The complaint , as amended , alleged that the respondent discrimi- natorily laid off Catherine Pieper and Mary Pieper on February 7 and 8 , 1938, respectively ; discriminatorily discharged Katherine Foti on February 16, 1938; and discriminatorily discharged Betty Tiefeia- brun, Helen Siesener , Catherine Pieper, and Illar7y Pieper on March 15, 1938, thereby discouraging membership in the Amalgamated and encouraging membership in the United. These employees at all material times were members of the Amalgamated. Catherine Pieper and Katherine Foti worked as turners and pressers , Pieper having been in the respondent 's employ for 9 years, and Foti for 8 years. Of the two , Pieper was more active in union affairs and had acted as employee representative in discussing shop matters with Webb . As already noted, during a conversation with Klunk late in January 1938 , Pieper had protested against the aid which the respondent had given to the United. Over a period of at least four years the respondent made a practice of dividing the available work equally between Pieper and Foti, and at the same 11 Section 8 provides , in part : It shall be an unfair labor practice for an employer- (3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization : Provided, That nothing in this Act, or in the National Industrial Recovery Act (U. S. C., Supp. VII, title 1 5, sees . 701-712), as amended from time to time, or in any code or agreement approved or prescribed thereunder, or in any other statute of the United States , shall preclude an employer from making an agreement with a labor organization (not established, maintained , or assisted by any action defined in this Act as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in section 9 (a), in the appropriate collective bargaining unit covered by such agreement when made. H. R. WEBS NECKWEAR AND MANUFACTURING ICOMPANY 10553 time the two employees were allowed some latitude in determining how the apportionment should be worked out. On February 7, 1938, however, Klunk laid Pieper off with the explanation that he had orders to cut the working force in two. While there was not enough work at this time to keep both employees busy full time, Foti and Pieper had been apportioning the work between themselves. When Pieper reminded Klunk of this practice, he replied that he was merely following out orders. The next day Forelady Meyer ap- proached Foti at work and asked if she was going to join the United. Later Meyer brought Foti a United application card to sign, and at quitting time, Meyer told Foti that thereafter she could do all the pressing and turning since Klunk had stated that the respondent would no longer employ Pieper. Since Foti was compensated on a piece-work basis, acceptance of Meyer's proposal would have in- creased her earnings substantially. Foti, however, refused to return to work after February 8, 1938, unless Pieper was reinstated. On February 9, 1938, Foti and Catherine Pieper requested Klunk to put Catherine Pieper back to work and that she and Foti be allowed to share the work as they had in the past. Klunk retorted that he had no work for Pieper, but that Foti could work if she cared to. Foti refused to do so on the ground that Pieper was rightfully entitled to employment. When Foti later called for her pay on February 16, 1938,-Klunk discharged her without explanation. The respondent has never offered her reemployment. On February 8, 1938, the day after Catherine Pieper was laid off, Klunk also laid off Hwy Pieper with the explanation that the respond- ent was cutting its staff in two. Pieper, during 5 years' employment, had done substantially all the respondent's hand sewing, save that dur- ing rush periods she was given some help. Despite Webb's request during December 1937 that she think about joining the United, Pieper had retained her Amalgamated membership. After the respondent entered into the closed-shop agreement with the United on March 12, 1938, Forelady Meyer instructed the two Piepers to report for work on March 14, 1938. They reported as instructed and at quitting time, Forelady Meyer told them, as well as Betty Tie/enbrun, that they would have to join the United or be discharged. She then distributed United application cards to them and warned "you will have to sign before you go home." Meyer testified that she gave instructions to employees only pursuant to Klunk's orders, but could not "recall" whether either Klunk or Webb had instructed her to inform the employees that membership in the United was a con- dition of their further employment. Without having signed the United's application cards, the three employees worked on March 15, 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1938. At the end of the day, Webb called Tiefenbrun into the office and told her that unless she joined the United she could not work. Tiefenbrun elected not to join the United, and has not since been offered employment by the respondent. Despite the ultimatum to Tiefenbrun on March 15, Meyer informed the two Piepers that they could work the next day. Meyer, however, did not withdraw her earlier statement that membership in the United was a'condition of continued employment. Upon learning of the re- spondent's ultimatum to Tiefenbrun, the two Piepers concluded that it would be useless to report for work unless they were willing to join the United. Accordingly, they did not report March 16, 1938. -Like- wise, Helen Siesener, who had worked for the respondent for 6 years as an operator, refused to join the United and on learning of the dis- charge of Tiefenbrun did not report for work after March 15, 1938. The respondent has not offered the two Piepers or Siesener employ- ment since March 16, 1938: In determining whether the respondent discriminated against Catherine Pieper by laying her off on February 7, 1938, we• note.that the lay-off was contrary to the previous practice of sharing work dur- ing slack periods; that at the time the respondent was engaged in a campaign to induce its employees to join the United; that Pieper was an outstanding member of the Amalgamated; and that Pieper had made known to the respondent her opposition to the United. The day after the laying-off of Catherine Pieper, the respondent laid off her sister, Mary. The respondent made no criticism of the Piepers' work at the time of the lay-offs, and did not show that there had been -any drastic reduction in the volume of its business. We are convinced, and find, that by laying off Catherine Pieper and Mary Pieper on February 7 and 8, respectively, the respondent dis- criminated in regard to their hire and tenure of employment, thereby discouraging membership in the Amalgamated and encouraging mem- beship in the United and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. As already noted, the respondent denied the appeal of Foti and Catherine Pieper that they be allowed to share the work, and it being apparent that the respondent was ridding itself of the Amalgamated members to bolster membership in the United, Foti refused to work further until the respondent restored Pieper to her former status. When Foti called for her pay on February 16, 1938, Klunk discharged her for having thus protested against the respondent's unlawful con- duct. It is manifest that the respondent could not with impunity dis- charge Foti solely for her refusal to work in protest against the re- -H. R. WEBB NECKWEAR AND MANUFACTURING 'COMPANY 1055 spondent's unfair labor practices,12 and in any event, Foti could have worked only if she had joined the United, as the respondent unlaw- fully sought to require all the employees to do. By discharging Foti on February 16, 1938, the respondent discriminated in regard to her hire and tenure of employment, thereby discouraging membership in the Amalgamated and encouraging membership in the United, and interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. After March 15, 1938, Catherine Pieper, Mary Pieper, Foti, Tiefen- brun, and Siesener refused to accept employment on the condition that they join the United. Since the contract with the United constituted an illegal barrier to the employment of, these persons, which the re- spondent itself had erected, it is clear that the respondent must bear full responsibility for the loss of employment by these employees 1S We therefore find that by requiring membership in the United as a condition of employment, the respondent discriminated against Betty Tiefenbruii, Helen Siesener, Catherine Pieper, Katherine Foti, and Mary. Pieper on and after March 15, 1938, thereby discouraging mem- bership in the Amalgamated and encouraging membership in the United, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respond- ent described in Section I, above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has interfered with, restrained, and coerced its employees in their exercise of the rights guaranteed in ' Cf. Matter of Gulf Public Service Company and International Brotherhood of Elec- trical Workers, Local 790, 18 N. L. R. B. 562; Matter of El Paso Electric Company, a Corporation and Local Union 585, International Brotherhood of Electrical Workers; and N. P. Clay et al., 13 N. L. R. B. 213. is Cf. Matter of Monticello Manufacturing Corporation and Steel Workers Organizing Committee, No. 2085; affiliated with the Committee for Industrial Organization , 17 N. L. R. B. 1091; Matter of Mt. Vernon Car Manufacturing Company, a corporation and Local Lodge No. 1756, Amalgamated Association of Iron, Steel & Tin Workers of North America, affiliated with the Committee for Industrial Organization , 11 N. L: R. B. 500; Matter of Eagle-Picker Mining & Smelting Company, a corporation , and Eagle-Picker Lead Company, a corporation and International Union of Mine, Mill & Smelter Workers, Locals Nos. 15, 17, 107, 108, and 111, 16 N. L. R. B. 727. 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 7 of the Act, we shall order it to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. We have found that on February 9, 1938, and at all times there- after, the respondent refused to bargain collectively with the Amal- gamated as exclusive bargaining representative of all its employees within an appropriate unit. We shall therefore order the respondent upon request to bargain collectively with the Amalgamated as the exclusive representative of the employees in the appropriate unit, in respect to rates of pay, wages, hours of employment, and other condi- tions of employment. Since the respondent's contract of March 12, 1938, with the United is invalid and void, we shall order the respondent to cease giving effect thereto, and to post appropriate notices in its plant, advising its em- ployees that the contract is void and of no effect. . We have found that the respondent discriminated against Catherine and Mary Pieper by laying them off from February 7 and 8, 1938, respectively, until March 14, 1938. We shall order the respondent to make them whole for any losses of pay they may have suffered by reason of the lay-offs, by payment to each of them a sum equal to that which she would have earned as wages or salary during the period from the date of such discrimination to the date of reinstatement, l ss her net earnings 14 during said period. We have found that the respondent discriminatorily discharged Katherine Foti on February 16, 1938, and discriminatorily denied employment to Betty Tiefen- . brun, Katherine Foti, Helen Siesener, Catherine Pieper, and Mary Pieper after March 15, 1938. We shall therefore order the respondent to offer these employees immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, displacing, if necessary, any employees who may have been hired to fill the positions of any of the above-named employees or who have succeeded to positions which either because of seniority or the practice of the plant would have been offered to any of the above-named employees had they not been 14 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working elsewhere than for the respondent , which would not have been incurred but for the unlawful lay-off or discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R. B. 440, enf'd, N. L. R. B. v. Crossett Lumber Company , 102 F. ( 2d) 1003 ( C. C. A. 8). Monies received for work performed 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 , orother government or governments which supplied the funds for said work -relief projects. .a. R.. AVE BB NECKWEAR AND. _IIAN"UFACTIUII .ING 'CO MPANY 1057 discriminated against.15 The respondent also will be required to make each of .the above employees whole for any loss of pay she may have suffered by reason of the discrimination with regard to her hire and tenure of employment, by payment to each of them a sum of money equal to that which she normally would have earned as wages from the date of such discrimination to the date of the offer of reinstate- ment, less her net earnings during such period. VI. THE PETITION In view of our findings in Section III, B, 1 and 2 above, as to the appropriate bargaining unit and the designation of the Amalgamated by a majority of the respondent's employees in the appropriate unit as their representative for the purposes of collective bargaining, it is not necessary to consider the petition of the Amalgamated for certification of representatives. Consequently the petition for certifi- cation will be dismissed. 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. Neckwear & Robe Workers Union Local #254 of St. Louis Joint Board, Amalgamated' Clothing Workers of America; and United Garment Workers of America are labor organizations within the meaning of Section 2 (5) of the Act. 2. The respondent's production employees, excluding clerical and leather workers and officials, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Neckwear & Robe Workers Union Local #254 of St. Louis Joint Board, Amalgamated Clothing Workers of America, was on January 15, 1938, and at all times thereafter has been, the exclusive representa- tive of all employees in said unit for the purposes of collective bar- gaining, within the meaning of Section 9 (a) of the Act. 4. By refusing and continuing to refuse to bargain collectively with Neckwear & Robe Workers Union Local #254 of St. Louis Joint. 15 The respondent hired 3 employees subsequent to the discharge of the 5 above-nained employees. The record is not clear as to how much work is being performed by these 3 new employees, as compared with the amount of work previously performed by the dis- charged employees. Also there is no clear indication of how much work previously per- formed by the discharged employees has now been shifted to the employees who at all times remained on the respondent's pay roll. The respondent, prior to the discriminatory lay-offs and discharges, by years of practice had established a custom of dividing the work between the employees during slack periods. and has presented no evidence of busi- ness curtailment rendering it impractical to follow the same custom at this time. It is clear -that the change in the mode of distributing available work flowed from the- discrimination against the Amalgamated members. 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board, Amalgamated Clothing Workers of America, as the exclusive representative of the employees in the above-stated unit, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employ- ment of Catherine Pieper, Mary Pieper, Katherine Foti, Betty Tiefen- brun, and Helen Siesener, the respondent has engaged in and is engag- ing in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing the 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. 7. 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 the respondent, H. R. Webb Neckwear and Manufacturing Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Neckwear & Robe Workers Union Local #254 of St. Louis Joint Board, Amalgamated Clothing Workers of America, as the exclusive representative of its production employees, excluding clerical and leather workers and officials; (b) Giving effect to its closed-shop contract with United Garment Workers of America, heretofore described, or ' to any renewal or extension thereof, or to any other contract that it may have entered into with the said United Garment Workers of America; (c) Recognizing or in any manner dealing with United Garment Workers of. America as the exclusive representative of its employees in an appropriate unit for the purposes of collective bargaining, un- less and until that labor organization shall have been certified as such by the National Labor Relations Board; (d) Discouraging membership in Neckwear & Robe Workers Union Local #254 of St. Louis Joint Board, Amalgamated Clothing Work- ers of America, or in any other labor organization of its- employees, by discriminating in regard to hire or tenure of employment or any term or condition of employment; (e) Encouraging membership in United Garment Workers of Amer- ica, or in any other labor organization of its employees, by discriminat- H. R. WEBB NECKWEAR AND MANUFACTURING (COMPANY 1059 ing in regard to hire or tenure of employment or any term or condition of employment ; (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for, the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from United Garment Workers of America, as exclusive representative of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment, unless and until that labor organization shall have been certified as such by the National Labor Relations Board ; (b) Upon request, bargain collectively with Neckwear & Robe Workers Union Local #254 of St. Louis Joint Board, Amalgamated Clothing Workers of America, as exclusive representative of its pro- duction employees, excluding clerical and leather workers and officials, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (c) Offer to Catherine Pieper, Mary Pieper, Katherine Foti, Betty Tiefenbrun, and. Helen Siesener immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; and where necessary, displace any employees who may have been hired to fill the positions of any of the above-named employees, or who have succeeded to positions which either because of seniority or the practice of the plant would have been offered to any of the above-named employees had they not been discriminated against; (d) Make whole Catherine Pieper, Mary Pieper, Katherine Foti, Betty Tiefenbrun, and Helen Siesener for any loss of pay they may have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment by payment to each of them a sum of money equal to an amount determined in the manner set forth in the section entitled "The remedy" above; deducting, however, from the amount otherwise due to each of the said employees, monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of '1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Federal, State, county, municipal, or other govermnent or -govern- ments which supplied the funds for said work-relief projects; (e) -Immediately post notices to its employees in conspicuous places in its plant stating that the respondent will cease and desist in the manner set forth in paragraph 1 of this Order; that it will take-the affirmative action set forth in paragraph 2; that the respondent's employees -are free to become or remain members of Neckwear & Robe Workers Union Local #254 of St. Louis Joint Board, Amalgamated Clothing Workers of America, and that the respondent will not dis- criminate against any employee because of membership or activity in that organization; and maintain such notices for a period of sixty (60) consecutive days from the date of posting; (f) Notify the Regional Director for the Fourteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED , that the petition for investigation and certification of representatives, filed by Neckwear & Robe Workers Union Local #254 of St. Louis Joint Board, Amalgamated Clothing Workers of America, be, and it hereby is, dismissed. MR. WILLIAM M. LEISERsoN took no part in the consideration of the above Decision and Order.