Peter Pan Co., Inc.

National Labor Relations Board - Board Decisions

Mar 11, 1940

21 N.L.R.B. 522 (N.L.R.B. 1940)

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