The Duffy Silk Co.

National Labor Relations Board - Board Decisions

Jan 5, 1940

19 N.L.R.B. 37 (N.L.R.B. 1940)

In the Matter of THE DUFFY SILK COMPANY and SILK THROWSTERS
UNION, LOCAL 81, TEXTILE WORKERS UNION OF AMERICA
Case No. C-1068.-Decided January 5, 1940
- Bilk Throwing Industry-Interference , Restraint , and Coercion-Company-
Dominated Union: plan for collective bargaining and profit sharing as ; conceived
and introduced by employer ; refusal to deal with representatives of bona fide
labor organization coupled with recognition of Plan, as domination of ; structure
of: employer 's control of representatives ; coercion in acceptance of, thereby in
effect creating a closed-shop for; financial and other support; hostility towards
bona fide labor organization ; disestablished as agency for collective bargaining
without prejudice to profit-sharing agreement or right to maintain agreed salary'
scale; closed-shop features enjoined-Labor Organization : terms of an agreement
establishing a plan for collective bargaining and profit sharing as-Agreement:
participation of Board agent in, for formation of Plan no restraint on Board in
view of establishment and continued maintenance of labor organization by nature
defeating rights guaranteed by the Act-Condition of Employment: acceptance
of Plan as.
Mr. Edward D. Flaherty and Mr. Peter J. Crotty, for the Board.
Mr. James 0. Moore, Sr., and Mr. William E. Barrett, of Buffalo,
N. Y., for the respondent.
Mr. Joseph Kovner, of Washington, D. C., for the Union.
Mr. Joseph Forer, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge and amended charges duly filed by Silk Throwsters
Union, Local 81, Textile Workers Organizing Committee, now known
as Silk Throwsters Union, Local 81, Textile Workers Union of
America,' and herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Third Region (Buffalo, New York), issued its complaint dated
December 15, 1938, against The Duffy Silk Company, Buffalo, New
I By an order of the Board dated October 30, 1939 , the present name of the Union
was substituted for its former name wherever appearing in the proceeding.
19 N. L. R. B., No. 11.
283030-41-vol. 19--4
37
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
York, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices affect-
ing commerce, within the meaning of Section 8 (1) and (2) and
.Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act.
Concerning the unfair labor practices, the complaint alleged in sub=
stance that from January 1, 1937, and continuing thereafter, the
respondent dominated and interfered with the formation and adminis-
tration of a labor organization of its employees known as the "Plan
for Collective Bargaining and Profit Sharing of The Duffy Silk Com-
pany Employees" and contributed financial and other support thereto;
and that thereby, and by actions discouraging membership of its em-
ployees in the Union, the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
The respondent filed an answer admitting that it was engaged in
interstate commerce for the purposes of the proceeding, but denying
the alleged unfair labor practices.
Copies of the complaint and notices of hearing were duly served
upon the respondent, the Union, and Plan for Collective Bargaining
and Profit Sharing of The Duffy Silk Company Employees, a labor
organization, herein referred to as the Plan. Pursuant to the notices
a hearing was held from January 15 to February 20, 1939, at Buffalo,
New York, before Madison Hill, the Trial Examiner duly designated
by the Board. The Board and the respondent were represented by
counsel, participated in the hearing, and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. No appearance was made at
the hearing on behalf of the Union or the Plan.
During the course of the hearing the Trial Examiner made a num-
ber of rulings on motions and on objections to the admission of evi-
dence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
After the close of the hearing the respondent filed a brief for the
consideration of the Trial Examiner. On April 26, 1939, the Trial
Examiner issued his Intermediate Report, copies of which were duly
served upon the parties, wherein he found that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1) and (2) and Section 2 (6)
and (7) of the Act. He recommended that the respondent cease and
desist from the unfair labor practices so found and take certain affirm-
ative action of remedial nature. Exceptions to the Intermediate
Report, a brief, and a request for a hearing for the purpose of oral
argument were filed by the respondent.
THE DUFFY SILK COMPANY 39
Pursuant to notice duly served upon all the parties, a hearing was
held on November 14, 1939, at Washington, D. C., before the Board,
for the purpose of oral argument. The respondent and the Union
were represented by counsel and participated in the argument.
The Board has considered the exceptions and briefs filed by the
respondent and finds the exceptions to be without merit in so far as
they are inconsistent with the findings of fact, conclusions of law, and
order set forth below.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Duffy Silk Company is a New York corporation with its office
in Buffalo, New York. It operates three plants in that city, located,
respectively, on Broadway, Guilford Street, and Northampton Street,
for the throwing of silk, which is the process of transforming raw
silk into a commercial thread. The respondent does not own the silk
so thrown, but processes it on a commission basis. The raw silk, im-
ported chiefly from Japan but also from China and Italy, is cus-
tomarily stored in New York City, whence the owner ships it at need
to the respondent, who receives it in the original bales. After being
thrown, the silk is reshipped by the respondent to the owner or his
consignee. Approximately 80 to 85 per cent of the finished product
is shipped to places outside of the State of New York. For 1938 the
approximate value of the silk after it was thrown by the respondent
was $3,500,000, of which the respondent's commission accounted for
about $1,300,000. For 1937 the value of the thrown silk was approxi-
mately $3,300,000, of which the commission accounted for approxi-
mately $1,200,000. The respondent is one of the largest companies
engaged in the silk-throwing industry. The machinery in its plant,
purchased principally from dealers in Connecticut and Rhode Island,
is valued at $960,000. The respondent employs two traveling solicitors,
who cover Illinois, Wisconsin, Indiana, part of Kentucky, New York,
Pennsylvania, New Jersey, North Carolina, Tennessee, Alabama, Vir-
ginia, West Virginia, and South Carolina. At its plants in Buffalo
the respondent employs approximately 1,100 persons.
The respondent admits that it is engaged in interstate commerce for
the purposes of this proceeding.
IT. THE ORGANIZATIONS- INVOLVED
Silk Throwsters Union, Local 81, Textile Workers Union of Amer-
ica, formerly known as Silk Throwsters Union, Local 81, Textile
Workers Organizing Committee, is a labor organization admitting to
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its membership silk throwsters in the vicinity of Buffalo , but with
its present membership composed solely of employees of the respondent.
Prior to June 1937 the Union was affiliated with the American Fed-
eration of Labor and was known as Local 2543 of the United Textile
Workers.
Plan for Collective Bargaining and Profit Sharing of The Duffy
Silk Company Employees is an unaffiliated labor organization ad-
mitting to its membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction of the Plan
1. The strike and attempted negotiations
Early in the morning of November 23, 1936, about six girls employed
by the respondent picketed the respondent's Broadway plant with the
assistance of Edward C. Cluney, a representative of the United Textile
Workers. The picket line soon grew, and few employees entered the
mill. The next day the picketing and the strike spread to the Guilford
Street and Northampton Street mills , and the respondent 's production
activities came to a standstill . At the time it was employing approxi-
mately 800 persons.
During the strike a large majority of the strikers joined the Union,
a strike committee was chosen , and numerous meetings were held.
Cluney several times attempted to reach by-telephone Paul Hemmerich,
the respondent's general manager, but was unsuccessful. On Novem-
ber 25, 1936, he telegraphed Hemmerich asking for a conference, and
on November 27 sent a similar telegram to Charles G. Duffy, Sr., the
respondent 's president . No reply was received. The strike com-
mittee twice attempted to see Duffy or Hemmerich at their plant
offices, but were not admitted to either . About 2. weeks after the strike
started, Joseph White, a vice president of the United Textile Workers,
spoke to Hemmerich over the telephone . Hemmerich refused to con-
fer with White, stating as his reason that the management was pre-
occupied with placing the work of the respondent 's customers.
On or about January 8 , 1937, the strike committee , together with
Robillard, a representative of the United Textile Workers, visited
James O. Moore, counsel for the respondent, who was at that time
engaged in drafting a profit-sharing plan, in accordance with instruc-
tions of the respondent . Hemmerich was also in Moore's office.
Moore refused to confer in the presence of Robillard, and the entire
delegation withdrew.
THE DUFFY SILK COMPANY 41
2. Origin and adoption of the Plan
On December 18, 1936, while the strike was still in progress , Charles
G. Duffy, Sr., president of the respondent, retained Moore , a Buffalo
attorney , to prepare a plan which would give the respondent 's stock-
holders a fair return on their investment and permit the employees to
share in the remaining profits.
By Christmas week 1936, Moore had prepared a general outline of
such plan. Early in January he discussed this outline with Hem-
merich and Duffy, gave a copy of an early draft of the Plan, as it
was later adopted , to Michael D. Williams , a Commissioner of Con-
ciliation employed by the United States Department of Labor, and
adopted various amendments suggested by Williams . Moore author-
ized Williams in writing to represent to the respondent 's employees
that the respondent would enter into an agreement with them for
collective bargaining through a mutually selected trustee, whereby
they would receive the highest competitive rate of wages and 75 per
cent of the net profits of the business.
Williams apparently introduced the subject to representatives of
the Union, and shortly before January 12, 1937, White read the pro-
posed agreement at a union meeting. The Union voted not to accept
the agreement without changes.
On January 12, 1937, the strike committee met at the Statler Hotel
in Buffalo with White , Robillard , and Williams . White explained
the Plan. After some discussion Williams called Moore's office and
asked for a conference . Charles G. Duffy, Sr., Charles G. Duffy, Jr.,
and Moore came to the hotel . Prior to their arrival , White and
Robillard withdrew , apparently because of a belief-not unwarranted
in view of Moore's prior refusal in Hemmerich 's presence to meet
Robillard-that negotiations would not be held by the respondent in
their presence . After the respondent 's representatives arrived, there
was a lengthy discussion on the employees ' complaints , on the agree-
ment proposed by the respondent , and on suggested amendments
thereto. The meeting ended without a definite conclusion, but with
some rapprochement among the participants.
On January 18, 1937, a meeting at the Ford Hotel in Buffalo was
attended by the strike committee , Charles G . Duffy, Sr., Charles G.
Duffy , Jr., Moore, Williams , and Thomas M. Finn , another Federal
Commissioner of Conciliation.
Robillard and Held, the latter being also an organizer for the
American Federation of _ Labor, withdrew before the arrival of the
respondent 's representatives . At the meeting the proposed agreement
and selection of a trustee thereunder were discussed. At Williams'
suggestion , Moore had prepared a list, not intended to be exclusive, of
42 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
nine prominent persons as possible nominees as trustee. The meeting
concluded on the understanding that the strike committee would con-
sider whether to present the agreement to the employees.
The next morning, January 19, the strike committee, Robillard,
Cluney, Finn, and Williams, conferred with Father John P. Boland,
then Regional Director for the Third Region. The committee decided
to recommend approval of the agreement to a meeting of employees to
be called and conducted by the Union. It was understood that
Williams and Finn would be tellers of the vote and that Father Boland
would also attend the meeting.
By word passed through the picket lines the employees were notified
of the meeting, which was held on January 20, 1937, in Dom Polski
Hall, Buffalo. At the meeting, Cluney, Robillard, Father Boland,
Finn, Williams, and a Father Justin Figas spoke in favor of the
Plan. No officers or supervisory employees of the respondent were
present.
After considerable discussion from the floor, the Plan was accepted
by a vote of 450 to 4. Father Justin Figas, O. M. C., Provincial of
the Franciscan Order in the United States, and well known to many
of the employees, was elected trustee under the Plan. Father Figas
had earlier been approached by Father Boland, Williams, and Finn
as to his willingness to accept the office, and his name had been included
in Moore's list of prospective nominees.
On January 22, 1937, a meeting of the employees was held under the
auspices of Father Boland, Finn, and Williams. The employees
elected three of their number to constitute the grievance committee
under the Plan.
3. Terms of the Plan
The Plan for Collective Bargaining and Profit Sharing of The
Duffy Silk Company Employees is in terms an agreement between the
respondent and the employees engaged in its Buffalo plants. It pro-
vides that the respondent and the employees shall choose a person (not
connected with any industrial, business, or labor organization) to act
as a trustee for the employees and to represent them in respect to all
matters of employment. The respondent engages to contract with the
trustee to pay its employees a rate of wages as high as that paid by its
comparable competitors, and to pay annually to the trustee, for dis-
tribution to the employees in the ratio of their respective earnings, 75
per cent of the net profits earned by the respondent in its Buffalo
plants. The method of determining net profits is defined, and includes
deduction from gross profits of 5 per cent of the respondent's invested
capital. The management of the business is reposed in the respond-
THE DUFFY SILK COMPANY 43
ent's board of directors, and the trustee may attend directors' meet-
ings. It is provided :
The Employees shall authorize and empower the Trustee to col-
lectively bargain for them, or such of them as become a party to
this agreement, respecting wages, hours, and working conditions,,
and during the continuance of the agreement will not authorize or
empower any other person or persons to represent them excepting
the Committee for Collective Bargaining respecting complaints as,
defined in the Procedure hereto attached. The authorization to
be evidenced by the signatures of a Committee chosen by the
Employees from their numbers for that purpose at a meeting
called to consider this plan.
The Plan further provides that the respondent "will re-employ all,
or any of its former Employees who join in this agreement, without
discrimination because of strike, union affiliations, or otherwise," and
that the employees will discontinue the strike and cease picketing.
It is provided that persons employed as of November 23, 1936, shall.
be reemployed before any new workers are engaged and that the exist-
ing wage rate will be continued until agreement is reached on the rate
to be paid under the Plan. In the event that such rate is found to.
be lower than the existing rate, the respondent undertakes to continue
the existing rate. Provision is made for equalization of employment
until resumption of operations at normal levels and also for equaliza-
tion during slack seasons. The Plan has a term of 3 years and is.
renewable annually or for a longer period by mutual agreement. It
is provided that during the term of the Plan the respondent will
conduct no lock-outs of employees and the employees will engage in
no strikes or boycotts of the respondent's products. A procedure for
disposition of employees' complaints, participated in by the committee
for collective bargaining respecting grievances, is established.
The absence of any stipulation for periodic meetings of the em-
ployees to select a new grievance committee will be noted. However,
on May 11, 1938, at a. meeting of the employees called by Father Figas,
resolutions were adopted providing for annual elections of members of
the grievance committee and for calling of meetings by the trustee on
petition addressed to him by 30 per cent of the employees.
The Plan for Collective Bargaining and Profit Sharing of The
Duffy Silk Company Employees has, accordingly, a twofold aspect.
In form it is an agreement between the respondent and the employees
at its Buffalo plants. The terms of the agreement establish a labor
organization. As used herein, the word "Plan" refers both to the
agreement and to the labor organization established thereby.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The return to work; operation under the Plan
1. The return to work
Shortly after the meeting on January 22, 1937, the grievance com-
mittee, the trustee, and Charles G . Duffy, Sr., signed the Plan. On
January 25, 1937, the respondent resumed operations.
On January 23, 1937, an article had appeared in a local newspaper,
the Buffalo Courier, reporting the coming opening of the mills. It
quoted a statement relating to the Plan purportedly issued by Charles
G. Duffy, Sr., which explained :
We want to emphasize that the agreement entered into with our
employees was not made with any union, nor were there any
negotiations or conferences with any union officials or representa-
tives. The settlement was negotiated by our management directly
with our employes , with Michael D. Williams and Thomas M.
Finn, conciliators of the United States department of labor , acting
in conjunction with both sides.
The statement continued :
At all times in the past they [members of the Duffy family]
have dealt with their employes individually and in groups and
propose to continue to do so in the future . The plan of profit-
sharing reduces their purpose and objective to a concrete form
and in writing.
The management of the company is not concerned with any of
the affiliations of its employes , but insists upon and will maintain
an open shop so long as it continues in business . It would not
have reopened its mills under any other conditions.
On the stand at the hearing Charles G . Duffy, Sr., testified that he
did not recall whether or not he released the statement quoted above
in part. However, he admitted having read the newspaper article and
agreed that it stated with substantial accuracy his position as of
January 23 , 1937. In view of this testimony and of lack of any denial
that the respondent released the statement in question, it is clearly
inferable , and we find , that the statement was in fact authorized by
the respondent.
The employees called back to work after termination of the strike
were summoned by a post card requesting them to report and adding:
"Employment will be resumed on the terms of the DUFFY PROFIT
SHARING PLAN which does not require MEMBERSHIP IN ANY
LABOR ORGANIZATION. P. S. Bring this card with you."
Some of the employees who returned to work did not receive the
cards. They, and all employees newly hired from time to time, were
required as a prerequisite to employment to sign a statement reading:
THE DUFFY SILK COMPANY 45
"I accept employment with the DUFFY SILK COMPANY under
its Profit Sharing and collective Bargaining Plan and agree to its
terms."
2. Operation under the Plan
Shortly after the return to work, the respondent granted its em-
ployees a general 15-per cent wage increase as a result of bargaining
with Father Figas, the trustee under the Plan. After bargaining
with Father Figas and the grievance committee elected under the
Plan, the respondent has also granted wage increases to several classes
of workers and to some individual employees. Father Figas and the
committee have also agreed with the respondent on rules implement-
ing the provision of the Plan regarding lay-offs. The committee,
sometimes with Father Figas, has met weekly with the respondent and
has adjusted a number of grievances entertained by individual
employees.
For 1937, the employees received as their 75-per cent share of the
net profits due under the plan $40,681.62, representing 6 per cent of
their wages. For 1938, the employees received $49,025 as their share,
representing 6.3 per cent of their wages.
C. Assistance to the Plan; interference with the Union
The members of the grievance committee have been paid by the
respondent for the time spent by them in adjusting grievances after
their regular working hours. These members were also paid for their
time spent in several committee meetings in which the respondent has
not participated. One of such meetings was held in an office of the
respondent's plant, and several employees not members of the com-
mittee also attended and were paid for their time by the respondent.
Supex'visory officials of the respondent notified these employees that
their presence at the meetings was desired.
On April 12, 1937, the employees voted for new members of the
grievance committee to replace designed members. The respondent,
at the request of the grievance committee and Father Figas, paid the
employees for the 2 hours lost from work because of the voting.
On May 11, 1938, the employees left their work to attend a meeting
at which they voted not to elect a new grievance committee and adopted
the resolutions, already referred to, regarding the holding of future
meetings. The employees were notified of this meeting by supervisory
employees of-the respondent and were-paid-,by the 'respondent for the
time lost from work.
It is true that the payments described above were desired by the
Union, but it is also true that there were no negotiations on this sub-
ject, or, for that matter, on any other, with union representatives as
such. Furthermore, the Union is not a party to the Plan, which by
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its very terms is an agreement` between the 7-respondent, and its
employees.
From time to time, also, the respondent has posted notices in its
plants praising the Plan, emphasizing that under its terms the em-
ployees are not obligated to join a labor organization, and advising
them not to be disturbed by persons not partners in the Plan. Thus
a notice dated February 5, 1937, stated in part : "Please remember that,
this plan has nothing to do with any employers' or labor organization.
Your interest is in the mill and cannot be taken care of by anybody on
the outside." A notice dated February 17, 1937, advised, "Don't be
disturbed by anybody who is not a partner in the DUFFY PROFIT
SHARING PLAN."
In the spring of 1937, union members were circulating cards to pro-
cure a change of affiliation from the United Textile Workers to the
Textile Workers Organizing Committee. The respondent posted a
notice dated May 19, 1937, repeating that the Plan did not require
the employees to belong or pay dues to any other organization, and
that this was one of its best features. The notice explained that a
number of employees had asked if it was necessary to sign the cards
circulated by the Textile Workers Organizing Committee, and added :
"You are not obligated to sign anything under our PLAN. For that
reason do not be disturbed by some of those who tell you differently."
It is clear, as well, that Hemmerich attempted to persuade the griev-
ance committee not to report on grievances to the Union and made
clear to the committee that he did not approve of the bringing up of
grievances to the committee from union channels.
D. Conclusions regarding the unfair labor practices
It is apparent from the foregoing that the respondent conceived the
.Plan, a labor organization, and introduced it to its employees at a
time when they were under the economic stress of a strike which had
lasted some 2 months. Despite the presence of a labor organization
representing a- large majority of the strikers, the respondent refused
to deal with the representatives of that organization, but insisted on
dealing directly with its employees, as is shown by the respondent's
refusal to meet with the union organizers and by the newspaper state-
ment given by the respondent's president. Refusal to deal with the
Union and the attempt to discourage membership therein, coupled with
recognition of the Plan, in themselves indicate employer domination of
the latter organization, even without regard to the fact that the Plan
was originated and formed by the respondent.2
2Ct. Matter of Texas Mining cE Smelting Company and International Union of Mine,
Mill d Smelter Workers, Local No. 412, 13 N. L. R. B. 1163.
THE DUFFY SILK COMPANY 47
Moreover, the very structure of the Plan contains the elements of
employer domination and interference. The employees are not free
to bargain collectively through a representative of their own choosing,
a right expressly guaranteed by Section 7 of the Act. Instead, their
representative must be chosen in cooperation with the respondent and
may not be associated with any industrial, business, or labor organ-
ization. Thus the respondent in effect determines who shall be the
bargaining representative of its employees.
The employees were coerced to accept the Plan in that it provided
for reemployment of those who joined in its terms without reference
to dissenters, and in that employees were summoned to work under the
terms of the Plan or were required as a prerequisite to employment to
agree to its terms. The respondent, therefore, in effect adopted a
closed-shop policy for the organization it conceived and dominated.
That the majority of the employees accepted the Plan and the
Union urged its adoption and praised its effects render the Plan no
less an employer-dominated organization.3 Nor is the Plan, viewed
as an agreement, the fruit of genuine collective bargaining. The re-
spondent imposed it upon its employees as individuals after rejecting
their attempts to bargain through the Union.
The respondent's contribution of financial and other support to the
Plan is abundantly shown by its payments to the grievance committee,
by its payment of its employees for their time spent in attending Plan
meetings, and by other conduct previously indicated.
The repetition of advice that the Plan did not require membership
in any other labor organization, the statement that it was unnecessary
to sign the cards of the Textile Workers Organizing Committee, the
suggestions that employees not be disturbed by persons not parties to
the Plan-these, combined with the studied failure to point out that
the Plan did not forbid membership in another labor organization,
constitute an obvious attempt to discourage union affiliation.
Counsel for the respondent refers to cases in which we have refused,
for reasons of policy, to disturb agreements purporting to settle past
unfair labor practices when our agents have participated in or lent
approval to such agreement8.4 This rule, however, does not apply
8 Cf. National Labor Relations Board v. Newport News Shipbuilding & Dry Dock Co.,
December 4, 1939 (U. S. Sup. Ct.), rev'g 101 F. (2d) 841 (C. C. A. 4), and enf'g Matter
of Newport News Shipbuilding & Dry Dock Co . and Industrial Union of Marine and Ship-
building Workers of America, 8 N. L. R. B. 866.
See Matter of Simplicity Pattern Company , Inc., a Corporation and Local 92, Inter-
national Union, United Autonwbile Workers of America, 16 N. L. R. B. 294 ; Matter
of Wickwire Brothers and Amalgamated Ass'n of Iron , Steel & Tin Workers of North
America, Lodge #1985, 16 N. L. R. B. 316; Matter . of Hope Webbing . Company and Textile
Workers Organizing Committee of the C. 1. 0., Local No. 111, 14 N. L. R. B.. 55; Matter of
Godchaux Sugars, Inc. and Sugar Mill Workers' Union, Locals No. 21177 and 2188, affiliated
with the American Federation of Labor, 12 N. L. R. B. 568; Matter of Schenandoah-Dives
Mining Company and International Union of Mine, Mill & Smelter Workers, Local No. 26, 11
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the instant case where the unfair labor practices consist of the estab-
lishment and continued maintenance of a labor organization which by
its very nature defeats the rights guaranteed by the Act. The action:
of one of our agents cannot constrain us from considering conduct in
violation of the Act which endured for 3 years thereafter and may,
under the Plan's renewal clause, continue indefinitely.
On the entire record we find that the respondent dominated and.
interfered with the formation and administration of the Plan, and
contributed financial and other support thereto, and that thereby and
by discouraging membership in the Union through the device of re-
peatedly informing its employees that the Plan did not require them to
join any labor organization, the respondent has interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed 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 respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in and is engaging
in unfair labor practices, we shall order it to cease and desist there-
from and take certain affirmative action designed to effectuate the
policies of the Act.
We shall order the respondent to cease and desist from requiring as
a condition to employment acceptance of the terms of the Plan, and
from giving effect to its contract embodied in the Plan. To effectuate
the policies of the Act we shall order the respondent to withdraw all
recognition from, and completely disestablish, the Plan, the trustee,
and the committee for collective bargaining established thereunder, as
representatives of any of the respondent's employees for the purposes
of collective bargaining with the respondent concerning grievances,
rates of pay, wages, hours of employment, and other conditions of
employment. Our order disestablishing the Plan, the -trustee, and
N. L. R. B . 885. Cf. Matters of Harry A. Half! , Doing Business as The Half Manufacturing
Company and International Ladies' Garment Workers ' Union, 16 N . L. R. B. 667; Matter
of Corinth Hosiery Mill, Inc. and American. Federation of Hosiery Workers, 16 N. L. R. B.
414; Matter of Allsteel Products Manufacturing Company ( Inc.) and International Associa-
tion of Machinists , Local 1308, 16 N. L. R. B. 72.
THE DUFFY SILK COMPANY 49
the committee as collective bargaining representatives is not intended,
however, to interfere with the profit-sharing arrangement of the re-
spondent with the Plan, provided that it is continued without dis-
crimination against or in favor of any labor organization, nor to
require the respondent to vary those wage, hour, seniority, and other
such substantive features of its relations with its employees which it
established in the terms of the invalid Plan.
Upon the basis of the above findings of fact and the entire record
in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Silk Throwsters Union, Local 81, Textile Workers Union of
America, and Plan for Collective Bargaining and Profit Sharing of
The Duffy Silk Company Employees are labor organizations within
the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of Plan for Collective Bargaining and Profit Sharing of
The Duffy Silk Company Employees, and by contributing support
thereto, the respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (2) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
4. 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,
The Duffy Silk Company, Buffalo, New York, and its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) In any manner dominating or interfering with the administra-
tion of Plan for Collective Bargaining and Profit Sharing of The
Duffy Silk Company Employees or with the formation and admin-
istration of any other labor organization of its employees, and con-
tributing support thereto or to any other labor organization of its
employees;
(b) Directly or indirectly requiring as a condition to employment
acceptance of the terms of said Plan, or agreement to its terms ;
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Giving effect to its contract embodied in said Plan;
(d) 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 concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from and completely disestablish Plan
for Collective Bargaining and Profit Sharing of The Duffy Silk Com-
pany Employees, the trustee, and the committee for collective bargain-
ing established thereunder, as representatives of any of its employees
for the purpose of dealing with the respondent concerning grievances;
wages, rates of pay, hours of employment, or other conditions of
employment;
(b) Post immediately in conspicuous places in its plants, and main-
tain for a period of at least sixty (60) consecutive days, notices to its
employees stating that the respondent will cease and desist as provided
in paragraph 1 of this Order and will take the affirmative action
described in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Third Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.