Donnelly Garment Co.

National Labor Relations Board - Board Decisions

Jun 9, 1943

50 N.L.R.B. 241 (N.L.R.B. 1943)

In'the Matter of DoNNELLY GARMENT COMPANY and INTERNATIONAL
LADIES' GARMENT WORKERS' UNION and DONNELLY GARMENT WORK-
ERS UNION 7 PARTY TO A CONTRACT
Case No. C-1382.-Decided June 9, 1943
DECISION
,AND
ORDER
On November 27, 1942, the Trial Examiner issued his Intermediate
Report in the above=entitled proceeding, finding that,the respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action as set forth in the copy of the Intermediate Report
attached hereto.
During the hearing, the Trial Examiner ruled upon various mo-
tions and, upon objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
Pursuant to notice, a hearing for • the purpose of oral argument
was held before the Board on March 16, 1943, at Washington, D. C.
The respondent, the I. L. G. W. U., and,the D. G. W. U. were repre-
sented by counsel and presented argument. The Board has consid-,
ered the Intermediate Report, the,exceptions and briefs, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations made by the Trial Examiner, with the exceptions
,and qualifications noted-below:
A. The remand; the evidence adduced pursuant thereto
In remanding the case to the Board for further hearing, the Circuit
Court directed that the respondent and the D. G. W. U. be permitted
to adduce the previously proffered testimony of respondent's em-
ployees to show, in substance, that they formed and joined the
D. G. W. U. of their own free will and that they were not influenced,
interfered with, or coerced by the respondent in choosing that organ-
ization as their bargaining representative. In compliance with the
Court's mandate and pursuant to the respective offers of proof sub-
mitted by the respondent and the D. G. W.- U. at.the original hearing,
50 N. L . R. B., No. 42.
241
242, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board permitted the introduction of, such testimony." We have
carefully considered all such evidence adduced by the respondent and
the D. G. W. U., We find, however, that the testimony in question
does not overcome more positive evidence in the record that the
respondent committed acts of interference and assistance in the for-
mation and administration of the D. G. W. U. which subjected that
organization to the respondent's domination and which removed
from the employees' selection of the D. G. W. U. the complete freedom
of choice which the'Act contemplates. Since we find the .testimony
here adduced, totally unpersuasive , that,, the employees „voluntarily
designated the D. G. W. U., we are moreover impelled to adhere to
the opinion, derived from our experience in administration of the
Act, that conclusionary evidence of this nature is immaterial.to issues
such as those presented in this case.2 A 'consideration of all the
evidence convinces us, and we find, that the respondent dominated and
interfered with the formation and administration of the D. G. W. U.
and contributed support thereto; and that the respondent thereby
interfered with, restrained, and coerced its employees in the exercise
of the rights -guaranteed' in Section 7 of the Act.
B. Membership and participation- in the D. G. 'W. U. by alleged
supervisory employees
The Trial Examiner found that Harry Grogan, listed on the pay
roll under the heading, "Instructors and Floor Ladies," and Hilda
1At the- original hearing , the Trial Examiner , although denying the broad offers of proof
submitted by the respondent and the D G W. U , nevertheless permitted 9 witnesses to
testify that they joined the D. G. ,W. U. of their own free will. Twelve witnesses, whose
,testimony before Judge Miller in the injunction proceeding was admitted as part of the
record , likewise testified that they voluntarily joined the D. G. W. U At the further
heating, the respondent was permitted to introduce 11 witnesses who gave similar testi-
mony in accordance with the respondent 's offer of proof . Five of these witnesses had
also signed the D. G. W. U. 's offers of proof, and all of the 11 were examined by the D. G.
W U. pursuant to its offers.
2 See Bethlehem Steel Company, et at. v. N. L. R. B ., 120 F. (2d) 641 (App D . C) enf'g
• Matter of Bethlehem Steel Corporation , a Delaware corporation and Steel Workers Organiz-
tng Committee, 14 N. L. R. B. 539 ; American Enka Corp . v. N. L. R B.- 119 F. (2d) 60
(C. C A. 4), enf'g Matter of American Enka Corporation and Textile Workers Union,
No 22129, American Federation of Labor, 27 N. L' R B 1057 ; N. L R. B v. Brown Paper
Mill Co., 108 F. ( 2d) 867 (C. C. A. 5), cert. ' den. 310 U S 651, ' enf'g Matter of Brown Paper
Mill Company , Inc, Monroe, Louisiana and International Brotherhood of 'Paper Makers;
affiliated ' with the American Federation of Labor and International Brotherhood of Elec-
trical Workers, affiliated with the American Federation of Labor, 12 N. L. R . R. 60;
Bethlehem Shipbuilding Corp. v . N. L. It. B., 114 F. ( 2d) 930 (C C A 1), enf'g Matter
of Bethlehem Shipbuilding Corporation , Limited and Industrial Union of Marine and
Shipbuilding Workers of America, 11 N L R B 105 , N L R. B v Newpoi t News Ship-
building cC Dry Dock Co., 308 U. S 241 , rev mod. of Board ' s cider in 110 F. ( 2d) 506
(C. ,C. A. 7), enf'g-as - mod. Matter of Link -Belt Company and Lodge 160) of, Amalgamated
Association of Iron , Steel and Tor Workers of North Ainei ice through the 'Steel Workers
Organizing Committee, ailiatediwith the Committee for Industrial Organization, 12 N L.
It B 854; Corning Glass Works v. N. L R B, 118 F (2d) 625' (C C A 2), enf'g as mod.
Matter of Corning Glass Works, Maobeth-Evana Division and Federation of Flat Glass
Workers of America, 15 N. L . R.' B. 588, N. L. R B. v New Era Die Co ., 118 F. (2d) 500
(C C A. 3), enf'g as mod Matter of New Era Die Company and 'International Association
o,®Machinists , Lodge 2)2, A . F. of L., 19'N L R 13 227.
DON\ELLI GARMENT COMPANY - 243
Richmond and Veda Hoyland, listed under the pay' roll heading,
"Buying Records," were supervisory employees whose participation
in D., G. W. U. affairs was attributable to the respondent. It appears
that Grogan was inadvertently listed on the pay roll as an instructor.
There is no other evidence that he was employed in a supervisory
capacity. While Richmond and Hoyland appear under the heading
of "Buying Records," which covers the executive force and other
salaried'workers of the respondent, we are of the opinion that this
fact, in the absence of other evidence, is insufficient to warrant a
finding that they enjoyed a supervisory status. Accordingly, we
find that the activities of these three employees in connection with
the D. G. W. U. are not attributable to the respondent.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National' Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Donnelly Garment Com-
pany, Kansas City, Missouri, its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Don-
nelly Garment Workers Union, or with the formation or administra-
tion of any other labor organization of its employees, and from con-
tributing financial or other support to Donnelly Garment Workers
Union or any other labor organization of its employees;
(b) Giving effect to its, contract of May 27, 1937, and supplemental
wage agreement of June 22, 1937, or to any extension, renewal, modi-
fication, or supplement thereof, or to any superseding contract or
agreement,, with Donnelly Garment Workers Union, aid from giving
effect to its check-off agreement with said organization;
'(c) Discouraging membership in International Ladies' Garment
Workers' Union, cir any other labor organization of its employees,
or encouraging membership in Donnelly Garment Workers Union
or any other labor organization of its employees, by laying off any
of its employees, or in any manner discriminating in regard to their
hire and tenure of employment, or any term or condition of
employment;
(d) Dominating, controlling, and using the Donnelly Loyalty
League to interfere with, restrain, and coerce its employees in the
exercise of the rights guaranteed in Section 7-of the Act. .
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist Tabor organizations, to bargain collectively
through representatives of their own choosing, or to engage in con-
244' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certed 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 Donnelly Garment Workers
Union as the representative of any-of its employees for the purpose
of dealing with the respondent concerning grievances; labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment, and completely disestablish Donnelly Garment Workers
as such representative;
(b) Reimburse all of its employees for all dues and assessnnents,
if any, which it has deducted from their wages on behalf of Don-
nelly Garment Workers Union;
(c) *Post immediately in conspicuous places throughout the re-
spondent's Kansas City factory, and maintain for a period'of at least
sixty (60) consecutive days, notices to its employees stating: (1)
that the respondent will not engage in the conduct from which it is
ordered to cease and desist in paragraphs 1 (a) to (e)' hereof; (2)
that the respondent will take the affirmative action -set forth in ,ara-
graphs 2 (a) and (b) hereof; and (3) thatthe respondent's employees
are free to become or remain members of International Ladies' Gar-
ment Workers' Union, and that the respondent will not in any man-
ner discriminate against any employee because of membership or
activity in said organization.
(d) Notify the Regional Director for the Seventeenth Region in
writing within ten (10) days froth the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it
alleges that the respondent, by discriminating in regard to the hire
and tenure of employment of May Fike, has engaged in unfair labor
practices within the meaning of Section 8 (3) of the Act, be, and it
hereby is, dismissed.
INTERMEDIATE REPORT
Miss Ruth Weyand, Miss Helen F. Humphrey, and Miss Fanny Boyls, for the
Board.
'Reed and Ingraham, by Mr.'James A. Reed, Mr. R J. Ingraham, Mr. James J.
Shepard, Jr. and Mr. Burr S. Stottle, of Kansas City, Mo., for the respondent
Hogsett, Trappe, -Depping and Hoists, by Mr. William S. Hogsett, of Kansas
City, Mo., for the respondent.
Mr. Cliff Langsdale,' Mr. Charles 'I'nrney, and Miss Jane W. Palmer, of Kansas
City, Mo, for International Ladies' Garment Workers' Union.
Gossett, Ellis, Dietrich and Tyler, by Mr. Frank E Tyler, Mr. Lucian Lane,
and Mr. Raymond E. Draper, of Kansas City, Mo., for the Donnelly Garment
Workers Union.
DONNELLY GARMENT COMPANY 245,
STATEMENT OF THE CASE
Upon an amended charge duly filed by International Ladies' Garment
Workers' Union , herein called the I. L. G. W. U ., the National Labor Relations
Board, herein called the Board , by its - Acting Regional Director for the
Seventeenth Region ( Kansas City , Missouri ), issued its complaint dated April
27, 1939, against Donnelly Garment Company, of Kansas City , Missouri , herein
called the respondent , alleging that the respondent had engaged in and was
engaging in, unfair labor practices affecting commerce within the meaning of
Section 8 ( 1), (2), and ( 3) and Section 2 (6) and ( 7) of the National Labor
Relations Act, 49 Stat : 449, herein called the Act. A copy of the complaint
and amended charge, accompanied by notice of hearing , were duly served upon
the, respondent; the I. L. G W. U. and the Donnelly Garment Workers Union,
herein called the D . G W. U, party to the contract.
On May 2, 1939, the D. G. W. U. filed its petition to intervene , which was
granted insofar as its interest might-appear , by order of the Acting Regional
Director for the Seventeenth Region. -
Pursuant to notice , a hearing was held on June 5 to July 15, 1939 , , inclusive
at Kansas City, Missouri , before the undersigned , the Trial Examiner duly
designated by the Board. The Board , the respondent , the I. L. G. 1W. U. and
. the D .. G. W. U. were represented by counsel and,participated in the hearing.
Full opportunity to be heard , to examine and cross -examine witnesses, and to
introduce evidence bearing oh the issues was afforded all parties.
With respect to the unfair labor practices , the complaint as amended, with-
out objection , at the , close of the Board's case alleged in substance : that the
respondent ( 1) on or about April 27, 1939, and thereafter dominated and
interfered with the formation and administration of a labor organization among
its employees known as Donnelly Garment Workers Union and has given
financial and other support to said organization , inter alga , ( a) g y encouraging
and permitting its supervisory and other employees to promote the organization
of and membership in the D. G. W. U . on the respondent 's time , property, and
at its expense; ( b) by forming on or about February 12, 1935, through its
officers and agents, the Donnelly Loyalty League, herein called the League, by
continuing to dominate the League until on or about April 27, 1937 , for the pur-
, pose of impeding and preventing the organization of the employees by the
I. L. G. W. U.; ( c) by creating on or about April 27, 1937 , through its officers
and agents , the D . G. W. U as a continuation of the League; (d) by entering
into a closed=shop agreement for the purpose of assisting the D . G. W. U. and
of depriving the employees of the rights guaranteed them under the Act; (2)
discouraged membership in the I. L. G W. U. by discharging Sylvia Hull and
May Fike in April 1937 because they had joined and assisted the I . L. G. W. U.;
and (3 ) by various acts 1 has coerced and restrained the employees from becoming
1 The principal acts enumerated In the amended complaint are : (a ) by discharging
Fern Sigler in April 1937 , ( b) by statements of the respondent ' s president and certain
supervisory employees in March and April 1937 , ( c) by a public statement against the
I. L. G W . U made by James A Reed , ( d) by permitting a loud speaker system 'iii its
cafeteria to be used as a medium of propaganda in favor of the D . G W. U. and in
opposition to the I . L G. W U ., ( e) by keeping members and meetings of the I L G W U.
under surveillance , ( f) by circulating and inducing the employees to sign a petition
professing their loyalty - to' the respondent , ( g) by permitting certain supervisory and
confidential employees to become members and active in the affairs of the D G W U.,
(h) by discriminating in the allotment of work and by refusing to recall to work certain
named employees who were allegedly members of the I L G W U ('i) by instigating
and permitting the employees to engage in a demonstration on April 23 , 1937 , against
certain members of the I L G . W U., and ( j), by granting a contract to the D G W U
making membership therein-a condition of employment.
536105-44-vol 50=17
246 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
members or continuing membership in the I. L. G. W . V. and has encouraged
and compelled membership in the D G. W. U. The amended complaint further
alleged that the respondent by entering into a closed -shop contract with the
D. G. ' W. U. has violated Section -8 (3) and 8 ( 1) of the Act and that the
closed-shop contract between . the respondent and the, D . G. W. U. is void and
of no effect.
At the opening of the hearing the respondent and the D. G. W. U. filed mo-
tions to make the charge and the complaint more definite and certain. The
undersigned granted the motions in part and requested counsel for the Board
to make the complaint more definite . and certain in specified , respects . Counsel
for the Board , in compliance with this request, thereafte 'r'moved to strike cer-
tain portions of the complaint and amend , it, which motion was granted. At
the close of the presentation of evidence by the Board in support of the com-
plaint, the complaint was without objection again amended on motion of coun-
, -sel for the Board. Service of the amended complaint was, acknowledged by
the parties. The undersigned denied various other motions by the respondent
and the D. G. W. U. to make the complaint more definite and certain , and the
respondent's contention that portions of the amended complaint 'was so vague,
indefinite ,* and uncertain that they did not sufficiently appraise the respondent
of the acts charged was overruled by the undersigned.
During the course of the hearing , the respondent and the " D. G: W. U. made
several motions to dismiss the amended complaint and specific portions there-
of. Decision on the motions having been reserved the motions for dismissal
of, the amended complaint in its eptirety are hereby denied and the motions
to dismiss certain paragraphs of the amended complaint , relating to certain of
the acts of interference , restraint , and coercion 2 are hereby granted. The
motions in all other respects are denied.
The respondent 's answer was divided into four parts : In Part A the respond-
ent contended that upon 10 stated grounds3 the Board is without jurisdiction
3 The portions of the amended complaint dismissed were sub -paragraph d, g, g (1), 1,
k, n, and p of paragraph 11 relating to: (1) public statements of James A Reed;
( 2) statements of Alex Green and Ella Mae Hyde , supervisory officials of the respondent,
concerning the I L.' G W U ; (3 ) use of a loud speaker system in the respondents cafe-
teria to influence its employees regarding their union affiliations; (4) surveillance;
(5) disciiniination in the allotment of work to employees who were members of the
I. L G W U '; and (6 ) the refusal of the respondent to recall or assign work to certain
named employees who were members of the I L G W U.
3The stated grounds were. ( 1) the Board is without jurisdiction to issue a complaint
"at the request of an organization which does not represent a single employee in the
respondent 's plant . . . and [which ] has been found by the United States Fr,deral Court
to be engaged in an unlawful conspiracy to force the respondent to compel its employees
to join said organization against their wills" , (2) the Board has no authority to issue
a complaint "for the purpose of attempting to abrogate and nullify contracts between the
respondent and the exclusive representative of 100 percent of its employees, when said
contracts are entirely satisfactory to both parties thereto and have been determined by
a United States Federal Court to contain higher wages and more favorable working condi-
tions than are contained in any contracts entered into between the International Union
(I• L• G W U) and other garment manufacturers in this part of the country "; ( 3) this
proceeding deprives the respondent , without a judicial hearing, of its right freely to con-
tract as guaranteed by the Fifth Amendment to the Constitution of the United States ;
(4) if this proceeding were sustained , valid contracts between the respondent and the
chosen representatives of its employees would be abrogated without a judicial hearing,
due prccess of law, and 'a trial by jury in violation of the Fifth and Seventh amendments
of, the Constitution ; (5) this proceeding deprives the respondent of its, property without
due process of law and 'of its light to trial by jury , by providing for the awarding of
unearned wages to former employees and for their reinstatement ; ( 6) the amended
charge of the I L .' G. W U is vague , indefinite, and does not state facts sufficient to
support a formal complaint , ( 7) the Boned , uithout authority , by the , issuance of its
DONNELLY GARMENT COMPANY , 247
to maintain the proceedings. In Part B, the respondent, avers that the com-
plaint must be dismissed "for the reason that the Board, its ageiits,,and rep-
resentatives have exceeded their authority and have demonstrated their bias
and prejudice against the respondent, and collusion with the International Union
(I. L. G. W. U.) by filing of the complaint herein and by the maintenance of
this proceeding in'the face of [certain enumerated] facts of which the Board
and its representatives have actual knowledge."' Part C is a petition for in-
complaint has prejudged as true the allegations in the amended charge of the I. L. G. W. U
(8) the complaint is vague, indefinite, insufficient and alleges conclusions instead of facts,
all in violation of due process of law; (9) the maintenance of this proceeding violates
the Fifth amendment in Article III, Section 1 and 2 of the Constitution of the United
States by permitting the Board to act as investigator, complainant,, prosecutor, triers of
facts, and judge of the controversy and by denying the respondent a judicial review of
the evidence in accordance with the rules of law and evidence; and (10) the Board has
not conducted an election among the respondent's employees to determine their choice of
representatives, which is a condition precedent to a proceeding based on charges of unfair
labor practices.
* The answer of the respondent alleges as facts of which the Board has knowledge :
(1) that the I. L. G. W. U. has engaged in an unlawful conspiracy to injure and destroy
the respondent's business by publishing false and libelous reports about the respondent
and the woiking conditions in its plant, by inaugurating and threatening to inaugurate
secondary boycotts against the respondent's customers and merchandise,- by threatening
assaults on the respondent's employees similar to those perpetrated against employees
of garment manufacturers in Kansas City, Missouri, St Louis, Missouri, Dallas, Texas,
and Memphis, Tennessee; (2) that the I. L. G. W. U. knowing that the employees had
refused to be represented by the I. L. G. W. U. publicly announced a 'drive against the
respondent and the employees, requested by letter containing false statements a conference
with the 'respondent' for the purpose of making a closed-shop contract, and began attacks
of fraud and violence against three other garment manufacturing companies in Kansas
City, Missouri, at the same time announcing that similar acts of violence would be per-
'petrated against the respondent's employees; (3) the respondent, after receiving a request
to enter into a collective bargaining agreement with the D. G. W U, a voluntary organiza-
tion of employees, sought to obtain 'a deteimination by the Board of the right of the
D. G. W. U. to be exclusive bargaining agent of the employees but was advised by repre-
sentatives of the Board that an application by an employer for certification of representatives
could not be granted under the rules of the Board, and, therefore, entered into a collective
bargaining agreement with the D. G. W. U. ; (4) that sometime after July 5, 1937,
the United States District Court for the Western Division of the Western District of
Missouri, three judges sitting, temporarily enjoined the I L G. W U. from committing
unlawful acts of fraud and violence against the respondent and the employees, which
decision was appealed to the Supreme Court of the United States and by that Court
remanded to be heard before a single judge in the District Court; (5) that the Board's
Acting Regional Director for the Seventeenth Region, (Earnest P. Dunbar), on Auiust 25,
1938, notified the respondent by letter that charges of unfair labor practices have been
filed against the respondent by the I L G. W U and requested- a Centel once on the
charges, and thereafter the respondent requested the Acting Regional Dnector for the
facts alleged in the charges and for an opportunity to present evidence thereon, but this
privilege was denied by the repiesentatives of the Board who threatened -to file.a com-
plaint and conduct a long hearing unless the respondent acceded to the demands of the
I. L. G W. U and further asserted that if it hearing was held the Board would find
against the respondent; (6) at on or about February 4, 1939, at the request of repre-
sentatives of the Board, written proposals upon which settlement of the charges might
be reached were submitted to each other by the respondent, the D G W U and I L G. W. U
and that the 'proposal of the I L G W U included an offer to drop all boycott activities
against the respondent "so long as the respondent does not recognize any plant union as
the bargaining representative of its employees", acceptance of which proposal by the
respondent would have compelled it to.violate the terms of the National Labor Relations
Act; and (7) that the bearing on the remanded injunction suit was begun in the United
States District Court on March 22, 1939, at the close of which a permanent injunction
against the I. L G W. U was granted, pursuant to respondent's petition, and that repre-
sentatives of the Board were in constant attendance at the hearing and consulted fre-
quently with representatives of the I. L G W. U during examination of respondent",
witnesses, thus demonstrating that the Board assisted and is assisting the I. L. G. W. U
In its conspiracy against the respondent and is maintaining the proceedings herein, in
violation of any authority vested in the Board by the Act.
248 DECISIONS OF NATIONAL- LABOR R'ELA!rIONS BOIARD
vestigation and certification of representatives of its employees. The answer
in Part D admits. certain allegations.of the complaint concerning, the corporate
structure and the nature of the business of the respondent, but denies specifically
every allegation that it has engaged in or is engaging in unfair labor practices.
During the hearing, the respondent filed a motion requesting that the com-
plaint be dismissed for the reasons stated in Part A and B of its answer.` The
I. L. G. W. U. moved to strike certain portions 6 of the respondent's answer.
The undersigned took these motions under advisement and requested the re-
spondent to submit a written statement of the evidence it would offer, to prove
the averments set forth in Part A and B of the answer, and any other parts
of the answer referred to in the motion to strike. The respondent submitted no
statement of evidence in support of Part A of its answer except as to the para-
graph relating to wages and working conditions provided for in contracts entered
into between the I. L. G. W. U. and other' garment manufacturers. In Part B
of the answer the respondent -submitted certain parts of the transcript of testi-
mony taken in an N. R. A. hearing, in which it was also the respondent and the
I. L. G. W. U. the charging Union and in°the United States District Court in-
5 Part B of the respondent's answer included the findings of fact and conclusions of
law of the United States District Court for the Western Division of the Western District
of Missouri (Donnelly Garment Company et at. v. I. L. G. W. U., et at., D. G. W. U. Inter-
venor's Case No. 2924) in an - injunction suit brought by the respondent against the
I L G. W U As a part of these findings of fact and conclusions of law, the District
Court found that the respondent's employees acting unanimously had voluntarily formed
the D G. W. U. and at all times freely'administered and maintained it. This finding
of fact is not ;binding upon the Board and-does not preclude an independent,finding by
the Board on this issue. Section *10 (a) of the Act provides:
The Board is empowered . . to prevent any person from engaging in any unfair
labor practice ( listed in Section 8) affecting commerce This power shall be exclusive
and shall not be affected by any other means of adjustment or prevention that has
been or may be established by agreement , code , law, or otherwise. [Emphasis added].
Matter of National Electric Products Corp and United Electrical and Radio Workers of
America, Local No 609, 3 N L. R. B 475, 500. See also Union Premier Food Stores, Inc.
v. Retail Food Clerks, and jllanagers .Union, Local No 1357 et at, 98 F. ,(2d);821 (C.C.A ,3)
where it was held that the District Court was without authority to conduct an election
to determine the exclusive bargaining representative of certain employees since the Act
vests power to determine that question exclusively in the Board. Cf Blankenship v.
Kirby, 96 F.`'(2d) 450 (C. C A. 7); International Brotherhood of Teamsters v. Interna-
tional Union, 106 F. (2d) 871 (C. C. A 9).
e From Part A of the respondent's answer the allegation that a United States District
Court had determined that the contracts between .the respondent and the D G. W. U.
contain higher wages and more favorable working conditions than contracts -between Athe
I. L.. G. W U and other garment manufacturers in the area; from Part B of thean§wer
the allegations that'the I. L G W. U was'engagrng in `an unlawful'coaspiracyl against
the respondent, that it had engaged in violence against employees of other garment manu-
facturers and had announced that similar acts would be perpetrated against employees
of the respondent, that the respondent's contract provided for higher wages, more'favorable
working conditions than contracts obtained by the efforts of the I L G W U, the allega-
tions referring to the findings and decrees of the United States District Court for the
Western Division-of the Western District of Missouri, the averment that the I L. G. W. U.
admitted that the respondent's employees did not desire to be represented by the I. L.'
G. W U., the allegations regarding the assistance of the Board's representatives in the
alleged conspiracy of the I. L. ,G W. U against the respondent; from Part D the aver-
ments that the I L. G. W. U. sought closed-shop agreements even when it , represented only
a few or none of the employees of the company with whom it sought such agreements
The reasons stated as grounds for striking these portions of the answer are that;they
are immaterial to the issues'before the Board, that the Board,'is not bound by' the, Hndings
of other judicial tribunals, that the "clean hands" doctrine of equity does not apply to
proceedings before the Board , that these portions of the answer constitute an attempt
by the respondent to try -before the Board the Federal District Court injunction suit
between the respondent and the I. L G. W. U., and that under the Act the Board Is not
empowered to take cognizance,of alleged law violation, coercion, or intimidation oe the
part of the complaining ' union. ,
DONNELLY GARMENT COMPANY 249
junction suit between the respondent and the I. L. G. W. U. The undersigned
refused the proffered evidence, granted the motion of the I. L. G. W. U. to strike,
denied the request of the respondent for dismissal of the complaint based on
Part A of the answer, and refused to receive the respondent's petition for inves-
tigation and-certification of representatives as set forth in Part C,'of its answer.'
Prior to the commencement of the hearing, the D. G. W. U. filed a motion re-
questing; that,the Board conduct-- an election among the- respondents employees,
to determine whether they desired to be represented by the D. G. W. U. or by
the I. L. G. W. U., and that the hearing be postponed until the outcome of such
election had been, announced. Thereafter, on May 17 and June 3, 1939, the
D. \G. W. U.. filed a petition and amended petition, respectively for investigation
and certification for representatives. Ati the hearing the undersigned denied the
motion and rejected the petitions. The D. G. W. U. also filed an answer denying
all the allegations relating to the unfair labor practices of the respondent, but
admitting the existence of a 'closed-shop agreement between the respondent
and the D. G. W. U.
At the conclusion of the hearing the parties were afforded an opportunity
to argue orally before the undersigned, and were requested to file memorandum
briefs. Memorandum briefs were filed by the respondent, the I. L. G. W. U.,
and the D. G. W. U.' '
On October 11, 1939, the undersigned filed an Intermediate Report, finding
that the respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1), (2), and (3),9 and
Section 2 (6) and (7) of the Act. The undersigned further found that May
Fike had not been discriminatorily discharged, and recommended inter alia
iliat the respondent cease and desist from the unfair labor practices which it
was found ,to have engaged in, withdraw all recognition and completely dis-
establish the Donnelly Garment Workers Union as the representative of the
„employees for the purposes of collective bargaining, cease and desist from giv-
ing effect to its contract and check-off agreement with the Donnelly Garment
Workers Union, and that the allegations of the complaint as to May Fike be
dismissed.
On October 12, 1939, the case was, transferred from the Regional Office of the
Seventeenth Regign •to the Board in .Washington, D. C., and continued before
the Board. pursuant to Article II, Section 32, of the National Labor Relations
Board Rules and Regulations-Series 2.
On December 1, X1939, the respondent, the D. G. W. U., and the I. L. G. W. U.
filed exceptions to the Intermediate Report. The same parties filed briefs in
support of- their exceptions to the Intermediate Report. On January 9, 1940,
7Donnelly Garment Company v. N: L. R B., 123 F. ( 2d) 215, 221 , 225, (C C A. 8)
where the Court stated:. '
The main and controlling issue in the case was whether the formation or adminis-
tration of the Donnelly Garment Workers Union had been supported , dominated or
interfered with by the Company or whether that union was a bonafide independent
labor organization formed and administered exclusively by the employees of the
Company and completely free from employer influence , domination and support.
We.are of the opinion that the Trial Examiner did not err in confining the issues
to those which were tendered by the complaint filed by the Board. , We.are satisfied
that- the Board was not erequired•.to try the International for conspiracy or to try
the charge that the Board had conspired or colluded with, the International.
8 By stipulation, dated July 22, 1939, the amended complaint was further amended to
conform it to the proof.
6 The undersigned found that the discharge of Sylvia Hull was discriminatory within
the meaning of the Act but did not recommend reinstatement or back pay for reasons
discussed in Section E, infra. I
f
250 DECISIONS OF NATIONAL LABOR R 'E'LATIONS BOARD
0
a hearing for the purpose of oral argument was conducted before the Board
in Washington, D. C., at which the respondent, -the D. G. W. U., and I. L. G.
W. U. appeared by counsel, who participated in- the argument.
On March 6, 1940, the Board after consideration of the exceptions to the
Intermediate Report, and the briefs submitted in support of the exceptions,
issued its decision, containing its-findings of fact; conclusions of law, and order.10
In brief, the Board found that the respondent had dominated and interfered
with the formation and administration of the D. G. W. U. and had contributed
support to it in violation of Section 8 (2) of the Act; had discharged May
Fike and Sylvia Hull in violation of Section 8 (3) of the Act; and had by
these and other Acts interfered with, restrained, and coerced, its employees in
violation of Section 8 (1) of the Act. -
Thereafter the respondent, Donnelly Garment Company, filed with the United
States Circuit Court of Appeals for•the Eighth Circuit a petition to review and
set aside the Board's order, to which the Board filed an answer requesting the
enforcement of its order. The D. G. W. U. filed an intervening petition re-
questing that -the Board's order beset aside, and the I. L. G. W. U. intervened
in defense of the order. The petitioners, Donnelly Garment Company, and
D. G. W. U. challenged the validity of the Board's order on two grounds: (1)
lack of due process; and (2) lack of sufficient 'evidentiary basis for, the
Board's findings, conclusions, and order. The Circuit Court, on November 6,
1941, after consideration of -briefs and arguments of counsel for the respective
parties handed down its decision remanding the case to the Board for further
proceedings."
On,April 21, 1942, the Board entered an order vacating and setting aside its
Decision and Order dated • March 6, 1940, reopening the record for a further
hearing to take additional evidence in accordance with the Opinion and Decree
of the Circuit Court, referring the proceeding to the Regional Director for the
Seventeenth Region for the purpose of, conducting • the further hearing, and
authorizing and directing the Regional Director to issue notices of the further
hearing. On June 6, 1942, the Regional Director issued his notice of further
hearing fo the parties, notifying them that on July 6, 1942, at Kansas City,
Missouri, a further hearing would be conducted.
,Pursuant,-to -such notice, a hearing-was -held on, July 6, 7, and 8, 1942, and
on various days between August 3 and September 17, 1942, inclusive at Kansas
City, Missouri, before the undersigned, the Trial Examiner duly designated by
the Chief Trial Examiner. The Board, the respondent, the D G. W. U., and
the I. L. G.^ W. U., were represented by counsel and participated -in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all of the parties.
On July 8, 1942, prior to the taking of any testimony in the further hearing,
respondent filed with the undersigned ,its Affidavit of Prejudice for the, pur-
pose of obtaining the designation of another Trial Examiner. The D. G. W. U.
concurred in the application. , The undersigned referred the matter to the
io 21 N. L R B. 164.
"Donnelly Garment Company v. N. L. R. B., 123 (2d) 215, 225 (C. A. A. 8), where the
Court stated : -
We think that the least the Board can do in order to cure the defects in its pro-
cedure caused by the failure of the Trial Examiner to receive admissible evidence, is
to vacate the order and the findings and conclusions upon- which it is based ;' to
accord to the petitioners [the respondent and D G W U ] an opportunity to introduce
all of the competent and material evidence which was rejected by the Trial Examiner ;
and to receive and consider such' evidence together with all other competent and
material evidence in the record before making, new findings and a new order.
{
DONNELLY GARMENT COMPANY 251
Board, and continued the hearing, subject to 48 hours' notice to the parties..
On July 17, 1942, the respondent filed with the Board an Application for a
'Continuance of the further hearing. On July 28, 1942, after consideration of
the oral argument by the respondent, the I. L. G. W. U., and the D. G W. U.
before the Board and related documents filed by the 'parties, the Board issued
its order dated July 28, 1942, dismissing the Affidavit of Prejudice 12 and denying
the Application for a Continuance 13 On July 30, 1942, the undersigned notified
the parties that the hearing would reconvene on August 3, 1942, at Kansas
City, Missouri.
The undersigned accorded the respondent and the D. G. W. U. an opportunity-
to introduce all of the competent and material evidence which was rejected at
the prior hearing" and permitted Nell Quinlan Reed, the respondent's president,
who was, because of a serious illness, prevented from testifying' at the hearing
12 The Board in its order dismissing the Affidavit of Prejudice, stated : Each of the
particulars relied on in the Affidavit of Prejudice' were brought by the responi'ent to the
attention of, the Circuit Court of Appeals. The Court decided that the Trial Examiner
and the Board has been free of any bias or prejudice. (See Donnelly Gaiment Company v.
N. L. It. B, 123 F. (2d) 215 (C. C. A. 8).
Having carefully examined the matters now adduced by the respondent, we can see
no reasons for disagreeing with the findings of the Circuit Court of Appeals or for doubting
that the evidence ordered by that Court, to be admitted will be fairly and judiciously
received and considered Indeed, to disqualify the Trial Examiner for his previous error
would be equivalent to barring a trial judge who had been overruled on a question of
evidence by an Appellate Court, from presiding over the further hearing; such is not the
customary practice See Berger v United States, 225, U. S. 22; 31 ; Minnesota and Ontario
Paper Co: v Molyneaux, 70 F (2d) 545, 547, (C C. A. 8).
15 The Board in its order denying the Application for Continuance stated : Respondent's
Application for Continuance asserts that the bearing should be postponed to a date not
earlier than December 23, 1942, for the reason that it is engaged in war production ' and
that the employees it expects to call will, not be available as witnesses sithout serious
interference with such production. The need for the application of the principles of
the Act to industry is even greater in time of war than in peace-time, while the abandon-
ment or postponement of the Act's guarantees might well create the tensions that have
in the past led to industrial discontent, disturbance, and unrest, with consequent impair-
ment of efficiency and production.
We believe that the Trial Examiner is in the best position to make provision regarding
the availability of particular witnesses and we hereby instruct him that, in so doing,
he give every,consideration to the desirability of causing as little hindrance as possible
to the respondent's production.
The undersigned during the course of the further bearing received no request from the
respondent for a continuance, a change in the hours or place of the bearing to accommo-
date witnesses engaged in war production activities.
14 The United States Circuit Court of Appeals for the Eighth Circuit, (Donnelly Gar-
ment Company v. N. L. It. B., 123 F. (2d) 215, 222 (C C A. 8) in remanding the case
for the purpose of adducing additional evidence, rejected at the hearing before the Trial
Examiner [in 1939], stated :
The petitioners [respondent and D G W U ] proffered the evidence 'of the em-
ployees of the Donnelly Company, some 1200 in number, to show how and why they
formed the Donnelly Garment Workers Union, to show that no influence was brought
to bear upon them by the employer either in the formation or administration of
the Union, to show what the President of the Company had said to them at the mass
meeting in the spring of 1937, to show that their freedom to organize and to choose
their own representatives for the purpose of collective bargaining had not been inter-
fered with by their employer, and to show that their union, both in its formation and
administration was exclusively controlled and supported by them. The Trial Examiner
refused to receive this evidence. He permitted the petitioners to make formal offers
of proof. ,
11
• s t • r • s
We do not say that the Trial Examiner was required to take the same testimony
from 1200 witnesses. There were available-to him well known expedients for limiting
the number of witnesses where their testimony was cumulative.
252 IYEIC 'ISIONS bF NATIONAL LABOR RELATIONS BOARD
i
of 1939; to testify in the further hearing upon all the issues set forth in the
pleadings. % I -
On September 25, 1942, the Board vacated and set aside the Intermediate
Report of the undersigned, heretofore issued under date of October 11, 1939,
and ordered ; the, undersigned to issue an Intermediate Report on the entire
record.
-Upon the record thus made and from his observation, of the witnesses, the
undersigned makes in addition to the foregoing, the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Donnelly Garment Company, is a Missouri Corporation,
having its office and factory in Kansas City, ,Missouri, where it is engaged
in the business of designing, manufacturing, selling, and distributing ladies
garments under the trade name of "Nellie Don." More than 99 percent of the
raw materials, and supplies-consisting chiefly of cotton, wool acetate, rayon
and linen-used at^ the factory are purchased and transported through the
channels of interstate commerce from points outside the State of Missouri.
Approximately 96 percent of the garments designed, manufactured, and sold are
distributed through the channels of interstate commerce to points outside of
the State of-Missouri.
Officers of the respondent Company are,: Nell Quinlan (Mrs. James A.) Reed,
president and treasurer; Alex C. Green, vice-president; R. J. Ingraham, secre-
tary. The principal departments of the respondent and the persons in charge
of them are : Production, Lee Baty ; Merchandising, Retail Store and Re-
ceiving, Elizabeth Reeves; Comptroller and Office Manager, J. B. Bachofer; and
Employment Manager, Ella Mae Hyde."
During the peak production period of the year, the respondent employs
approximately 1200 persons.
The parties stipulated and agreed that the operations of the respondent have
a close, . intimate, and substantial relationship to trade, traffic, and commerce
among the several States, and that the respondent. is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
II.' THE ORGANIZATIONS INVOLVED -
International Ladies' Garment Workers' Union , affiliated with the American
Federation of Labor ,"' is a labor organization admitting to membership the
factory employees of the respondent.
Donnelly Garment Workers Union is an unaffiliated labor organization.
According to , its' by-laws, it admits to membership all employees of the
respondent.
III. UNFAIR LABOR PRACTICES
- A. Respondent's responsibility for the activities of various employees
In, the incidents described in the 'following section,, the'- respondentisv re-
sponsibility for the activities of various employees who figured prominently in
the organization of the D. G. W. U. must be determined. The Board con-
tends, that the respondent is responsible for their activities In most instances
' Is For further findings concerning the respondent 's supervisory staff see III A , infra.
10 At the time of the original hearing the I. L. G W . U. was unaffiliated.
DONNE'LLY GARIVIENT COMPANY 258
because of their supervisory status. The respondent asserts'that they cannot
bey classified as supervisors because no authority to hire, discharge or di-
cipline' is vested in them. In view of the role these employees played in the
organization and the establishment of the D. G. W. U. it is necessary to assay
in general the status and function- of "instructors" and "thread -girls," in terms
of their relationship to the management and to examine in some detail this
relationship with respect to a number of individual employees. The under-
signed will therefore determine the respondent's responsibility for their activ=
ities before considering the alleged unfair labor practices.
1. Instructors and thread girls
The respondent's factory is in part composed of sewing sections., In each of
these sections there are approximately 40 operators, each of whom operates
a sewing machine. Assigned to each of these sections is an instructor and an
assistant called a thread girl or floor girl. Among the duties of the instructor
and thread girl in each section is the distribution of materials and supplies with
which the operators work. Instructors also distribute directions as to how the
work is to be done and teach operators how to execute each step of the proc-
ess. This much is undisputed. It is also admitted' by the respondent that
prior, to''t1- evradwent `of L"ee Baty as- production manager and factory superintend-
ent the instructors had a part iii-'determining lay-offs and discharges in their
respective sections and also had disciplinary authority. Baty testified that
after he became factory manager in June 1935, he took from the instructors
and from all other supervisory employees the authority to hire, discharge, and
discipline and,vested all such authority in himself, so that he,has been since
that time the sole supervisory employee in the factory and personally observed
the conduct, character of work, efficiency and general attitude of all employees.
The respondent has in its employ between-1100 and 1300 persons. On June
2, 1939, there were employed in the production and maintenance divisions, of
which Baty is superintendent, 642 operators, 72 miscellaneous piece workers, 77
ironers, 11 folders, 41 examiners, 44 cutting department employees, 15 dividers;
44 instructors and=edistributors (thread girls or floor girls), 14 mechanics_ and
helpers, 11'liiiniile boys, 52.clerical workers, 60 miscellaneous timekeepers, 20
porters and maids, working on 10 floors of the factory. In view of,the number
of employees, and the size of the factory, the undersigned finds that Baty's
testimony in regard to the elimination of supervisors to be incredible."
It is plain from all the circumstances disclosed by the record that after June
1935, the instructors and the thread girls continued in their capacity as super-,
visors in charge of the operators who work in the various sewing sections of the
factory. A number of the respondent's witnesses testified that instructors do not
have the power to employ, discharge or discipline operators. There is substantial
17 The undersigned is unimpressed by the evidence adduced by the respondent to establish
that all supervisory authority in June 19135 was vested in Baty. Appraising the respond-
ent's evidence in the light of the contradictions and implausibilities found throughout,
especially in the testimony of Mrs Reed, Mrs Reeves and Baty, the undersigned is fully
persuaded_of its untrustworthy character The evidence is further weakened by the plain
Indications during examination of the instructors, thread girls and employees, assuming
nlpuendo, that - airy"'change in the supervisory setup of the plant wag made when Baty
took charge, it was known only to Baty and the respondant's officials. Finally, it is most
improbable that such a far reaching reorganization of a large factory would occur without
some notice to those affected and particularly to the employees who had for years, accord-
ing to Mrs Reed, been under ". . . more supervision and more executives than-I know.
I have more than are usual in the plant of this kind . . . yes our supervisors. Now in
my plant I have 40 operators,- 40 machines under one supervisor with an assistant one
in charge."
i
254 IYECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence, however,, that they do perform functions which make them part of the
supervisory. staff. -
The instructors, assisted by the thread girls"' assume complete/ charge of and
are fully responsible for -their respective sections of the factory. Among the
duties of the instructor is the assignment of bundles containing the materials
and supplies upon which the operators work, and the transmission.to the opera-
tors of the respondent's instructions for the performance, of -the,sewing. processes:
Mrs. Reeves ,, who preceded Baty as factory manager and is now in charge of
respondent's merchandising department, stated in an affidavit dated October 30,
1937, and confirmed the same in her testimony that: "competent instructors teach
the operators the particular operations to be performed by them and constantly
supervise the same." [emphasis supplied] In addition to these, duties the instruc-
tors perform other functions as the representative of the management. When
work is slack in the section the instructors determine who shall take a day off
and-in what order the operators will be released from the section. Although
Baty denied that the instructors are charged with the duty of disciplining and
reporting upon the efficiency of the operators who work in their respective sec-
tion , the evidence is convincing that they do so the same as before the advent
of Baty as factory manager, in June 1935. The instructor constitutes the link
through which the operators learn the management's directions and the manage-
ment learns whether a girl is a desirable employee, her capacity for work, her
attitude toward work, and her performance of the work.
The record clearly reveals that the instructors exercise supervisory, economic
control over the operators in their sections. This is particularly true when as
here the operators are paid upon a piece-rate basis: The instructors plan the
work in each section, determining when the work comes into the section which
operator, shall work upon the more desirable bundles. They keep the operators
busy and correct their mistakes. When repair work is necessary, the instructor
decides whether the operator must rip the work out and do it over on her own
time or receive pay for the work. Instructors report to the office weekly at a
"going over of the cards" on the operators work for' the past week. During,
temporary slack periods the instructors designate those operators who can be
spared or transferred to other sections.
Over and above the supervisory and economic control exercised by the instruc-
tors, they regard themselves as supervisors and'are so.regarded,,by'the-operators;
they are paid twice a month, their names being carried on a time workers pay
roll, while the operators are paid on a piece rate basis weekly ; and they are
responsible to Baty for the quality and quantity of work in their respective
sections. Although a substantial number of employee-operators testified during
the hearing, none of them stated that Baty personally gave them any instruc-
tions or directions or conferred with them about their work. The undersigned
is-convinced that there was no apparent change in the conduct of instructors or
thread girls after June 1935. Furthermore, it is undisputed that the respondent
has continued to hold out the instructors and thread girls, to the employee-
operators as supervisory employees and has given no notice of any kind to the
operators that the instructors' authority had been reduced or in any way changed
in June 1935.
The respondent contended that there is no distinction between the duties of
the instructor and the thread girl, one having charge of quality and the other
quantity, and that none of them act in a supervisory capacity. Even if it be
assumed arguendo that there is no appreciable distinction, the undersigned is
18 The evidence clearly Indicates that , in the absence of the instructor , her duties are
performed by the thread girl.
DONNELLY GARMENT COMPANY 255
of the opinion that Instructors and thread girls have supervisory authority.
Mrs. Reeves testified that the word instructor 'and floor (thread) girls and
the word supervisor "means one and the same to me." Rose Todd, hereinafter
found to represent the management , testified that the respondent does not use
the terni "supervisor" but that it does- have an employee called an instructor
in charge of 40 operators and a second, girl that might be called an assistant
instructor. It is clear from the record and the undersigned is convinced and'
so finds, that the instructors and thread girls actually and in all respects serve
as foremen and assistant foremen of the sections of 40 operators.19
It is 'plain from the foregoing, that the instructors and thread girls are
supervisory employees, and exercise economic control over the operators, that
prior to' June 1935, the instructors and the thread girls were admittedly super-
visory employees, that since that time the respondent has continued to hold
them out to the operators as supervisory employees, and that the respondent
has given no notice of any kind to the operators that the instructors and thread
girls have any less authority than formerly., Since the instructors and thread
girls are charged with certain duties and economic control which are-super-
visory, and disciplinary in nature, their interests are closely related to those
of the management and are often incompatable with those of the ordinary
worker. On the basis of all the evidence, the undersigned finds that instruc-
tors and thread girls are supervisory employees and that they act as, repre-
sentatives of the management in the factory.20'
I
19 The absence of any heirarchy of supervisors between the operators and Baty, with
solely the instructors to transmit orders and report on work , renders the instructors more
nearly approximate to foremen than any other commonly known class of supervisors. The
descriptions of foremen in works on labor relations often point to the "teacher" aspect
of his duties . See Arthur G. Anderson, Industrial Engineering and Factory Management,
(1928) page 39:
The foremen provides the necessary human element at the point of,contact to make
adjustments , rectify errors, remedy deficiencies, interpret and administer instructions,
make reports, supervise work, and most important of all, provide personal leadership.
In the final analysis the foreman Is responsible for output. He is a manager, a
teacher, a leader. At the furtherest outpost of management he is management to
the workers.
So viewed, the respondent is clearly responsible for their activities. See N. L. R. B. v.
Skinner & , Kennedy Stationery Co., 113 F. ( 2d) 667 , 670 (C. C. A. 8); N. L. R. 'B. V.
Christian Board of Publication, 113 F. (2d) 678, 682 (C C. A. 8) ; Wilson it Company v.
N. L. R. B., 123 F. (2d) 411, 414 (C. C. A. 8) ; N. L. R. B. v. Gamble-Robinson Co., 129 F.
(2d) 588, 590 (C. C A 8). '
Y0 The instructors are as important as the lead men and group leaders held by )the
Supreme Court to be employees of such a kind that the Board may base employer liability
for unfair labor practices upon the employer's failure,to prevent their activities in bel'alf
of a favored union -Intel national Ass'n of Machinists v. N. L. R. B , 311 U. S 72;
N. L R. B. v. Link Belt Co., 311 U. S. 584 ; H. J. Heinz Co. v. N. L. R. B., 311 U. S. 514
In the Machinists case the Supreme Court said (pp. 79-80) :
According to petitioner these men were not foremen, let alone supervisors entrusted
with executive and directorial functions, but merely "lead men" who by reason of
long experience were skilled in handling new jobs and directed the set-up of the
work...
The employer, however, may be held to have assisted the formation of a Union
even though the acts of the so called agents were not expressly authorized or might
'not be attributable to him on strict application of the rules of respondeat superior.
'We are dealing here, not with private rights (Amalgamated, Utility Workers v. Con-
solidated Edison Co., 309 U. S. 261), nor with technical concepts pertinent to an
employers legal responsibility to third persons for acts of his servants, but with a
clear legislative policy to free the collective bargaining process from all. taint of an
employer's compulsion, domination or influence, . . . they [the lead men] were not
high in the factory heirarchy and apparently did not have the power to hire or fire.
But they did exercise general authority over the employees and were in a strategic
256 DECISI0\S'0F,NATTIONAL LABOR RELATIONS BOARD
2. `Rose Todd
Todd was one•of the most active and outstanding among the employees of the
respondent in the affairs of the League and in the formation and administra-
tion of the D. G. W. U. She was president of the League during the time that
it piayed, so effective a part in resisting the organizational campaign`, of,, the
1. L G. W. U. Todd was on the organizing committee of the D. G. W. U. and
its first general chairman. Her status in the factory and her relation to the
management is in dispute.
Todd, with an interruption of 2 years, has worked for the respondent for ap-
proximately 13 years. She was a nurse by profession and through acquaintance
with Mrs. Reed as a nurse, secured a job at the respondent's factory in 1926.
She worked fora short time as an operator and as a thread girl, during the
early part of her employment. Also, prior to the interruption, Todd held various
responsible positions with the respondent, including that of an instructor 21 and
as an assistant to Dewey Atcheson, production engineer, in making time studies,
studying production methods and studying rates of piece-work wages. She left
her employment with the respondent in 1931 and for about 1 year worked for the
Gernes`'Garment Company, :where she took -charge of th6,factory, and later acted
as a traveling sales representative. When she returned to the employ. of the
respondent in 1933 Todd worked for several months as a thread girl. Until
sometime in the spring of 1937 she helped in various- sections of the factory
spending a good share of her time in the sample department which makes sample
dresses before general production begins.
From the record it is impossible to determine that Todd in 1937, 1938, and 1939
had any well-defined duties. During ' this period she was not assigned to any
particular department, being directly responsible to 'Batt', the factory manager.
Todd was'assigned a desk in the factory-first on the ninth floor and later on
'the seventh floor-charged with the responsibility 'of keeping the various sections
supplied with' the necessary materials for maintaining operations and check-
ing up on the delivery of various supplies that should be in the sections. In
addition, if any of the sections were short of supplies which delayed the work
Todd was notified and arranged for the proper supplies to be forwarded to the
department. These :,duties, required that' Todd move 9 throughout -the, various
sections of the factory' and `contact instructors and thread girls. For a period
of 1938 Todd again worked with Dewey Atcheson on some special. work: Baty
testified- that Todd received the same vacations as given to the instructors and
that in August 1937, "He couldn't let Todd go [on vacation] in August as she
was indispensible." The president of the First National Bank of Kansas City
with which, the company carried its account testified that-he had known Todd
for 10 or 12.years as "a kind of `all round man"' for the company and that she
had come into the bank for several years as respondent representative.
During the period from April 16 to 30, 1937, Todd was carried on the designing
pay roll, from May 1 to 31, 1937, on the hand sewing pay roll, from June 1 to 30,
1937, on the button and button hole pay-roll and from July 1 to 15, 1937, on the
receiving department pay, roll, although she did not work in these sections dur-
ing these pay periods. When the D. G. W. U. was organized she-was receiving
position to translate to their subordinates the policies and desires of the management.
In the H. J. Heinz case the Supreme Court reaffirmed these principles and held
that : "to the extent that petitioner may seek or be in a position to secure any advan-
tage from there practices [by foremen and "group leaders"] they are not any the
less within the condemnation of the act because petitioner did not authorize or
direct them "
21 See Section III A, (1) supra for supervisory status of instructors.
[
DONNELLY GARMENT COMPANY 257
a.'salary of ,.$130 amonth and,althpugh the'D. G W. U. expressed to the respondent
a desire to have her services part time, the respondent coutinueil to" pay her
the $130 a month, in addition to which the D. G. W. U. paid her $05 per month.
The undersigned, appraising Todd's entire employment record with the re-
spondent, is persuaded and finds that her position in the factory was one of
considerable responsibility, involving duties of a supervisory nature.
Evidence on Todd's activities in the factory plainly points to the fact that
she occupied a 'close and confidential relation to the management which was
made known to the employees by respondent's conduct. On April 23, 1937,
when- anti-I. L. G. W. U. demonstrations against Fern' Sigler; a member of
the L L._ G. W. U, took place in the, factory, the disturbance was reported to
Rose Todd. When Baty ordered Sigler from her section to'the office he was
accompanied by Todd. At the conference which' followed, Todd dominated the
scene and took the lead in questioning Sigler about her union ^ affiliation al-
though both Baty and Mrs. Hyde, the employment manager, were present. A
reading of the transcript of that conference shows that Todd opened the con-
ference and talked to Sigler of the respondents policy of operating an open
shop as if she represented the respondent, 'for example : ".. we have had
union people work here for years . . . We don't care. We have hired union
people . . . I talked to some of the girls yesterday afternoon and tried to get
them to see that it is all right if you want to work and belong to the union.
However, they feel so keenly about it,,we don't think we.can.do anything about
it . . . We are going to run an open shop as' long as the 'majority feels that
way." Todd also said : "My advice to you is, that if you feel that strongly
about the union and have enough 'people to back you up, be in a union shop.
I wouldn't any more think I could join the union than a main in the moon
I'd expect to be' put out on the street and left there." Baty and Hyde ac
quiesced in all that Todd said and talked in the same vein. Todd also dis-
coursed at length upon "our" employment policy. After the demonstrations in
Sigler's section and the conference In the office it was Todd' who finally sent
the employees back to work. Todd's status around the plant was such that the
respondent's telephone operators announced meetings over the inter-depart-
mental telephone when Rose Todd asked them to, and instructors took direc-
tions from Todd when she directed the form in which they were to turn in
time slips for employees absent from work, on D. G. W. U. business. In addi-
tion; Rose; Todd's position as president of the League, in, which all of the re-
spondent's supervisory, force including Mr. Keyes, sales,manager, Mrs. Hyde,
Mrs. Reeves and Dewey Atcheson were members , and which came into existence
to counteract the activities of the I. L. G. W. U.,, marked her in the eyes of the
employees as a person in whom the management had confidence and whose
views reflected those of the management . The respondent did nothing to dis-
courage Todd's activities, although fully aware of them.
Irrespective of Todd 's supervisory status, the undersigned is of the view that
the evidence, as a whole , clearly identifies her with the management in the
minds of the employees 22 The undersigned, finds that Rose Todd occupied, a
sa International Ass'n of Machin fists v P L R B ,1311 U S 72, 80, in which the Coal t
said :
` The'statute, we think purposely, does not define the particular methods or agents
'by which, the employer may intermeddle unlawfully So to confine representation
of him would open easy escape from the Act's provisions. Nothing in it requires that
such representation be limited to officials having any particular -kind or degice of
authority such as "hiring and firing," "disciplinary power," or. even "supervisory capac-
ity " These evidences of authority make more plain the connection of the actor with
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
close and confidential position with the respondent and further finds that In
such position she was acting ' for and on behalf of the respondent.
3. Hobart Atherton
Hobart Atherton has been, employed in the maintenance department of the
respondent since November 1933. Atherton describes himself as the "clerk" of
the company's maintenance department. He transmits orders, to six employees
who work with him in that, department, shows them how to do the work when
occasion demands, and keeps a record of the jobs performed. He also assists
with repair work wherever needed. Atherton and the respondent deny that he
is a supervisory dmployee in charge of the maintenance department. To accept
their testimony would leave this department without -supervision and would
mean that each employee in the department decides for himself what repair jobs
he will undertake. There is no evidence that any one else exercises any super-
vision or guidance over the work performed in the maintenance department, or
that Baty, the factory superintendent, in any way directs these employees.
The undersigned finds that Hobart Atherton is a supervisory employee of the
respondent in charge of the maintenance department of the plant. 21
4. Other supervisory employees
The status of certain other employees who were active in the League or the
D. G. W. U. and who occupy responsible -positions'with, the respondent is-in
dispute. These persons are Florence. Strickland, in charge of the pattern depart-
ment; Lena Tyhurst, assistant factory manager and in charge of the inspection
'department; Martha Gray, in charge of the outlet store ;' Ortense Root, in charge
of the sample department ; Heath Cowan, in charge of the receiving department
,(piece goods) ; Marvin Price, in charge of building maintenance; Ted Scholes,
in charge of the cutting department; and Mary Bogert, in charge of the dividing
department. 'Some of these employees admittedly had' supervisory authority be-
fore the appointment of Baty as factory manager. They are all, except Martha
Gray, under the supervision of Baty and so far as the record indicates, their rela-
tionship to the management after Baty assumed charge was identical with their
prior duties and responsibilities as far as the employees in the various depart-
ments were concerned. The employees in these departments were not aware of
any curtailment in the authority of those in charge, after Baty was made factory
manager.
The undersigned' finds that the above-named persons are' supervisory employees
and as such were representatives of the management.`
V
the employer, but their absence does not preclude the existence of, such a connection.
What is required is that substantial evidence show that the actor, whatever his
official position, is acting in fact on behalf of the employer, not for himself or others
only, and that, by whatever method or means, the employer brings pressure to bear
upon his employees which deprives -them of free and independent choice.-
Cf. Guppies Co. Mfrs v. N. L. R B., 106 F. (2d) 100 (C. C A. 2), where the Court refused
to hold the respondent liable for•the acts of•an employee inasmuch as the respondent had
not held out the said employee as a person having authority to advise others with respect
to joining or not joining labor organizations, had not directed the acts to be done, and
the acts had not been done with the respondent's knowledge or consent. I
a Atherton's position corresponds to those of the "group leaders" whose supervisory
status was an issue in H. J. Heinz Co' v. N. L. R. B., 311 U. S. 514, 518, 521.
24 The respondent contends that in Baty resided the sole supervisory responsibility over
the employees in each of these departments. See footnote 17, supra, for the undersigned's
rejection of this untenable position.
DONNELLY GARMENT COMPANY 259
'B. Events prior to the effective date of the Act'
Prior to 1934 no effort had ever been made to organize the employees of the
Donnelly Garment' Company. In 1934 the I. L. G. W. U. established an office
in Kansas City, Missouri, and announced in the papers that an attempt would
be made to organize the garment workers of Kansas City. On March 15, 1934,
the I. L. G. W. U. held an open meeting at the Musicians Hall to which all of the
respondent's employees were invited. Another similar ,meeting was held at
Eagles Hall on December 4, 1934. On both occasions the respondent's supervisory
force attended the meetings in a group, including Mrs. Reeves, then production
manager, Mrs. Hyde, personnel manager, and many of the instructors. Rose
Todd,' whose relation to the management is discussed hereinbefore, attended the
meeting at the Musicians Hall. DeweylAtcheson, production engineer, attended
the meeting at Eagles Hall.
During this period at least a dozen of the employees joined the I. L. G. W. U.,
several of whom became active, passing out notices of meetings and soliciting
their fellow workers to join the organization. Many of the employees attending
the meeting and others, irrespective of membership in the I. L. G. W. U., were
called to the office where Mrs. Reeves questioned them about their interest, in
the union and warned them that joining would. do them no good. Employees
were variously told by Mrs. Reeves that they had been "listening too much to
somebody outside," that, "Donnelly's don't belong to the union and they never -
will" and she had thought they had better "sense" than to join the I. L. G. W. U.
and that they had been "misled" in doing so, and they ought to have "a darn good
spanking" for their own good. Mrs. Gray, in charge of respondent's outlet store,
told employees it was'a "shame" that an employee had joined the I. L. G. W. U.
Dewey Atchison asked employees why they did not come to the management
instead of "going down to a bunch of foreigners," advised against getting
"messed. up".-with-the,union and warned they would be fired if they did. The
instructors warned'many of the employees that those who joined the I. L. G. W. U.
would be discharged and urged employees not to give their money "to those
foreigners." One instructor, referred to the I. L. G. W. U. members as "scum."
A substantial number Of the employees who joined the I. L. G. W. U. were
laid off or discharged shortly after joining R6 Approximately 12 employees in
June 1934 attended a dinner at the home of Glynn Brooks Yarnell," an employee
who had joined the I. L. G. W. U., where they discussed joining the I. L. G. W. U.
Yarnell was discharged in July 1934 although she had worked for the respondent
since December 1924. Within a few months all except one of the ' employees
who attended the dinner were either laid off or discharged. As a result of these
lay-offs or discharges the I. L. G. W. U. on December 6, 1934, filed a•charge against
the respondent under Section 7 (a) of the National Industrial Recovery Act,
alleging that eight employees had been laid off because they joined the I. L. G.
W. U. A hearing on these charges was held in Kansas City, Missouri, in April
and May 1935. The taking of testimony was completed, but before a decision
issued the National Industrial Recovery Act was declared unconstitutional by
the Supreme Court of the United States.
In the latter part of 1934 and the first part of 1935 all the other employees
who were known to have joined the I. L. G. W. U. were transferred from the
main ,factory of the respondent to a temporary branch,which was used by, the
25 The undersigned makes no findings with respect to the reasons for these discharges
which occurred prior to the effective date of the Act and which are not presently in issue.
20 The pleadings and record designate this employee as Glynn Brooks. At the close of
the hearing the pleadings were amended and the record corrected to designate her as
Glynn Brooks Yarnell.
260 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
respondent during the, busy season. When the rush of, work was -ovee.' andti"-
the use of the temporary building discontinued the employees, most of whom had
several years service, were laid off. Employees working in the main factory
with less service were retained. A strict seniority system was not followed
in the 'factory, although it was the customary practice to, provide regular em-
ployment for the older and more experienced operators.
As a result of this sequence of events the employees became hesitant to-join
the • I. L. G. W. U. and those who had joined denied their membership when
questioned. " Employees who had not joined were even careful not to talk to those
suspected of I. L.,G. W. U. membership for fear of some discrimination with
respect to their jobs. ,
In February, 1935,-Martha Gray, in charge of the respondents outlet store, and
Florence Strickland, in charge,of the pattern department, formed an organiza-
tion among the respondent's employees known as the "Nelly'Don Loyalty League "
The initial step in its organization was a meeting at the home of Gray, attended
by approximately 50 employees representing the various sections of the factory.
Within the next 3 days membership cards were circulated and were signed by
substantially all the employees. Florence Strickland, in circulating the cards,
stated "that,Mrs. Donnelly (Nell Quinlan Reed) would close her doors before she
would have a union shop, and [employees] should sign these cards to keep-
i,theirl, jobs and keep [them] in work because she would close the doors."
.A statement was circulated along with the membership card stating that
We protest against and will resist all attempts of outside interference
in the business of said company or wit our relations, to the company as
employees.
We recognize the fact that. . . we have had generous and fair treatment
from Nelly-Don (Nell Quinlan Reed)'-Presid'ent of the company, and we
repose our'confidence in her rather than iri professional agitators who are
sent^here'to create discontent among the employees 'of the•conipany. -
Florence 'Strickland refused to allow Virginia, Stroup, who was president of
the 'T. 't. G. "W-,. , Ti local, to sign a membership card because she belonged to
"another organization." Similarly Lena Allison, an instructor, refused' to allow
Frances Reidell a card on the ground that she was an I. L. G. W U. member.
Following the signing of the cards, on February 8, 1935, a mass meeting of all
employees' was held during working hours on the second floor of the build-
ing, occupied by-'the respondent's plant, presided 'over by Martha Giay,,, ,who
explained'the meaning of the word "loyalty." '
Meetings were regularly held on the second floor of the building.' The meet-
}ngs were announced by a notice to the instructors, transmitted either by Mrs.
`Wherry, factor manager, or by the respondent's switchboard operator, calling
each section and the instructors in each section notifying the employees to
attend the meeting. Each of the sections in the plant had a representative
elected by, the employees in the section to represent them in the League. These
representatives were-chosen by passing a' sheet of paper among the employees
in' each section while at their machines, on which nominations were made and
then repassing the same sheet around in a similar manner so that each employee
could mark his vote on the sheet: Virtually, all the', respondent's supervisors,,
including Mrs 'Reeves, Mae Hyde, Dewey Atchison, Martha, Gray, and Florence
Strickland were members of the League. The` League had songs of loyalty
and sponsored the wearing of pins bearing the initial "L" as a demonstration
of loyalty to Nell Quinlan Reed. -
The'respondent did not at this time haN a the second floor under lease ' See footnoie
34, infra '
DONNELLY GARMENT COMPANY 261
It,is,.cleav,,fro]n ,the,,eyents cited above, that prior,, to,tlle,e fective ti >e o the
Act, the respondent's supervisors expressed to employees the uncompromising
hostility of the respondent toward all labor unions and particularly toward the
I. L. G. W. U. Employees were made fully aware of their employer's attitude
and those who applied for membership or joined the I. L. G. W. U. did so
with a great deal of hesitancy. During this period it was made plain to the
employees by their supervisors that loyalty to the, respondent meant the re-
nunciation of the union. Membership and influence in the League enabled the
respondent to foster an organized employee resistance to outside unions.
Membersli of management representatives and supervisory employees, in the
League, convinced.' the' rank and file of the, respondent's employees that,. the,
League was an organization approved by the respondent to which they must
give their support, and that they must correspondingly refrain .from joining
or assisting the I. L. G `T. U. which the League so consistently opposed.28
The respondent contends 'that since the above-related activities took place
prior to July 5, 1935, the effective date of the Act, they are irrelevant -to' the
issues ' in' this proceeding and that all evidence thereof should have been ex-
eluded. This contention fails to recognize that the League continued in ex-
istence after effective date of the Act. Furthermore, evidence of an employer's
attitude and conduct with respect to labor unions for a reasonable period be-
fore fhe effective date of the Act' has often been admitted for the purpose of
evaluating the significance of events occurring after such date 2,
Since the League was inspired by the respondent and fully supported by its
representatives from its inception, the undersigned is convinced that, the re-
spondent, thereby forcibly,, impresedr upo,n., its employees its antiunion
sentiments..
Further, the League was dominated and controlled by the respondent, and
prior, to the effective date of the Act, the respondent used it to prevent its
employees from joining the I L G. W U. or any other outside labor organization 90
C. Events prior,to April 27, 1937; interference, restraint, and coercion
Following,the lay off and discharge of the I L G W. U members in late
1934 and early 1935, the organization of the League in 1935, and the inability
of the I. L G W. U to carry to a successful conclusion the case under the
NRA, due to the, decision declaring the Act unconstitutional, labor relations at
respondent's factory remained in,a quiescent condition until March 1937. During
this period the I. L. G NY U. abandoned temporarily its efforts to organize
the .factory.' The League continued in existence, and solicited new employees
to join. In some instances, instructors brought new employees notices that they
'Is Since the League was set up as a rival to the I L. G W. U., the League cannot be
held out as a "purely social organization," as contended by the respondent. See N. L.
R B. v J Freezer e( Son, 95 F. (2d) 840, 841 (C. C A 4)„also Senate Committee on Eda-
cation -and rLabor, S Rept No 573, 74th Cong, 1st Sess, pp. 10, where the following
statement appears . -
Nor does anything in the bill interfere with the freedom of employers to establish
pension benefits, outing clubs, recreational societies, and the like, so long, as such
organizations do not extend their functions to the field of collective bargaining, and
so long as they aie iwt,used as'ii covert:nieans of discriniiiiating;agai'nst br in' favor
of inemberslup in any labor of panization . (Emphasis supplied
29 See N L. R B i Pacific Greyhound Lines, 303 U S 272, 273; N L. R. B'v. Pennsyl-
vania Greyhound Lines, 303 U. S. 261, 268-270; N L. R. B v Link-Belt Co , 311 U. S
584, 588.
m See Section C, infi a, for findings concerning the League after the effective date of the
Act As to events described in Section B, above, the undersigned makes no finding of
unfair labor practices, spice they occuried piior to the effective date of the Act
5 :610.1-44-vol Z30-:18
262 DECISIONS 'OF 'N'ATIONAL LABOR RELATIONS BOARD
were eligible to membership; directed them to the desk-of the League president'
and later brought them their League pins.
On February 26, 1937, there appeared in the Kansas City Star an article
stating that the I. L G. W. U. had announced a • campaign to organize the
respondent's employees and had appropriated a large sum of money to be spent
in a drive for recognition of the I. L. G. W. U. as the collective bargaining
agent in the respondent's factory.
On March 2, 1937, Mary Sprofera and Inez Warren, shipping clerks, went
during working hours to the various departments of the, factory and secured
the signatures of respondent's approximately 800 factory employees to a pledge
which read as follows :
We, the undersigned, as members of the Donnelly Garment Company
wish to make it known we are • positively happy and contented with, the
positions which we hold with the organization and refuse to acknowledge
any union labor organization. We are thankful for the real humanitarian
interest extended by our employer, Mrs. Reed. [Italics supplied.] -
The petition was passed through most, if not all, of the sections, being handed'
from operator to operator while they were at work at'their machines. With six
exceptions the instructors and thread girls did not sign when the petition went
through their respective section, although they knew the petition was'being
circulated. Instructors Carrie Abrams, Ida Wolf, Clara Finnell, and Helen
Little, and thread 'girls, Nellie Biggs, Grace, Davis, and Emma Grover signed
the pledge. Three employees, Sylvia Hull, Mamie Carlson, and Elsie Greenhaw,
refused to sign, one stating that she disagreed with the expression of opposition
to labor organizations, another, that she was ' not satisfied with conditions in
the factory; Two of these individuals later signed for fear of losing their jobs,
their names , being later erased.
On the afternoon of the same day, Mary Sprofera and Inez Warren took the
signed pledges to Mrs."Reed's home and'presented them, to her. Thereafter,'as
the result of arrangements made' between 'Mrs.' Reed and - a 'newspaper repre-
sentative, a picture of the employees presenting the pledge was taken and
appeared on the front page of the Kansas City Star, accompanied by the state-
ment, that Mrs. Reed was going to place the pledge in the cornerstone of the
new building she was planning to erect.
Mrs. Reed shortly thereafter, expressed to her office manager; Marguerite
Keyes, a wish that all employees, not- merely factory employees, would sign
the petition. Keyes requested an employee in her department, Pauline- Shartzer,
to circulate the pledge of refusal to acknowledge any labor organization, among
all the employees who had theretofore not signed. As a result, everyone in the
plant including the supervisory•employees, watchmen, porters, maids and stenog,
raphers, indeed every employee except the three heretofore mentioned, signed
the "loyalty" pledge. The instructors and thread girls who signed when the
petition first went through- their section, signed again a second time on the
t same page with the other instructors and thread girls. The additional pledge
was thereafter presented to Mrs. Reed.
Under all the circumstances above related the undersigned finds that the
respondent, by permitting Mary Sprofera and Inez Warren, and requesting
Pauline Shartzer to circulate the pledges in the factory during working hours
and by requesting `that additional signatures be secured, gave approval and lent
assistance and encouragement to the solicitation, of its employees to pledge
I
0
DONNELLY GARMENT COMPANY ' 263
themselves not to join the I. L. G. W. U " and thereby' interefered, with,
restrained, and coerced them in the free choice of a collective bargaining agent,2
On March 6, 1937, the Kansas City Journal-Post carried an article stating
that David Dubinsky, president of the I. L. G. W. U, at a meeting of 700 union
members in Kansas City had officially launched a movement to organize em-
ployees of the Donnelly Company. This announcement was followed by a letter
to the respondent from the I. L: G. W. U. under date of March 9, 1937, request-
ing a conference between the I. L. G. W. U. and representatives of the re-
spondent .- The respondent did not reply to this letter.
A meeting of all the respondent's employees took place during working hours"
on the afternoon of March 18, 1937, on the second floor of the building housing
the respondent's plant. s4 Employees were notified orally by their instructors
that they were to attend the meeting, the instructors' having been notified by
either Mrs. Wherry or ' over the factory telephone system Most all of the
supervisory force were in attendance at the meeting, including Ella Mae Hyde,
Martha Gray, and Elizabeth Reeves, the instructors and the thread girls. Rose
-Todd, with the assistance of Hobart Atherton, both of whom were officials of
the League and supervisory employees, called the meeting and Todd presided.
Chairs for the meeting were rented from the Kansas City Rental Chair Com-
pany under the name of the League . From these facts, the undersigned eon-
eludes, despite the denial of Rose Todd, that the meeting was sponsored by
the League and its officials.
ai The solicitation of expressions of employee opinion on union matters during' work
Ing hours , with the knowledge and assistance of the employer , has been uniformly held to
violate the Act. N. L. If. B . v. Remington & Rand, Inc., 94 F. ( 2d) 882, 870 (C. A. A. 2) ;
Titan Metal Mfg. Co. v. N. L. R. B., 106 F. ( 2d) 254, 260 ( C. C. A. 3 ) ; Wileon & Co. v.
N. L. If. B., 103 F. ( 2d) 243, 251 (C. C. A. 8).
n It may be noted that the circulation of this pledge , coincidental with the renewed
organizational activities of the I. L. G. W. U. among the respondent 's employees, bears
striking similarity to the circulation of the League membership cards and anti-union state-
ments ' by the respondent , 2 years earlier , soon after " the I . L. G. W. U. had initiated its
campaign among the employees . In each instance , the' pleas to the employees to be "loyal"
to the respondent and to resist outside interference , appeared at crucial junctures in the
campaign of the I. L. G. W . U. to organize the respondent 's employees.
38 The Board contends and the respondent denies that this meeting and the one of April
27, 1937 , referred to later herein , were held during working hours. Evaluating the evi-
dence in its entirety , the undersigned is not persuaded by the testimony adduced by the
respondent . A finding favorable to the respondent ' s position would necessitate the ac-
ceptance of testimony which is contrary to the weight of the evidence . The indefinite
and, routine, testimony of respondent's witnesses with their lack of knowledge of details,
and the mutually corroborative testimony of Board's witnesses , supported by other evi-
dence , that operators attended meetings in their uniforms , that employees went to the
meetings in groups and that no definite time was given in the call for the meetings,
although the hours of work were staggered and the operators were working overtime,
convinces the undersigned, that the meetings of March 18 and April 27, 1937 , were held
during working hours.
34,The meeting was held on the second floor of the building in which the respondent's
plant was located ; however , the respondent on March 18, 1937 , did not have the second
floor under lease, , although occupying practically the entire building. Although the first
and second floors were not leased by the respondent prior to May 1937, employees had
regularly attended Loyalty League meetings and company style shows , held on these floors
and did not know whether they were leased by the respondent . The building occupied by
the respondent had ten floors and even during the time when the respondent did not have
the first and second floors leased, there were no other occupants in the building except the
respondent. -
ei At the hearing Todd testified that the meeting was -a "spontaneous" gathering of the
employees to discuss what means might be adopted to protect the respondent 's employees
against anticipated violence in connection with the I . L. G. W. U.'s projected organiza-
tional campaign . The record indicates that the respondent 's employees had become
alarmed by hearing reports that at other garment factories in Kansas City where the I. L.
264 , DECISIONS OF NATIONAL, LABOR-RELATIONS BOARD
Rose Todd made a , few opening remarks„after which - Mrs. Reed was reggested
to come in and address the employees . Mrs. Reed brought with her the letter
which the respondent had received from the I. L. G. W. U. under date - of March'
9, 1937 , requesting a conference . The letter was read to the employees. Mrs.
Reed then made a talk in which she expressed her pleasure at receiving the
"loyalty" pledge which had been presented to her on March 2, told the em-
ployees that the respondent was an institution to be proud of, that it had taken
care of its employees by keeping the factory in operation during the depression,'
and that she intended to continue to run the business . Then she spoke of threats
of violence that the I. L G. W.'U. was alleged to have made against employees of
the company , and, promised-pro tection . against such violence . Finally she di-
rected her remarks to the question of unionization of the factory . What she said
at this point is a matter of dispute . The Board 's witnesses testified that Mrs.
Reed stated she would close her factory before she would permit it to be union-
ized and that she would not allow "Dubinsky or any other `sky' to tell her how to
run her business ." According to respondent 's version, Mrs. Reed stated ".. .
Neither Dubinsky- or any other but-tinsky is going to intimidate me or the
company into forcing you to join the International (I. L G. W. U.) against your
will " The undersigned does not-consider it necessary to resolve the precise con-
flict in this testimony , since in the undersigned 's view, Mrs . Reed's own version
of her speech at the March 18 meeting , and the events which took place there,
constituted an unfair labor practice. The meeting was sponsored by the League,
which is controlled by the respondent,, and was attended by most of the respond-
ent's supervisory employees Through the presence of supervisors and the
sponsorship of the League, which had-.for its purpose ..tlie, exclusion of, outside
union organization from the factory, the employees must inevitably have been
aware of the anti-union character of the meeting and could not have been free
to express their independent views. It may be true, as the respondent contends,
that many of them feared the alleged threats of the I: L. G. W. U. but instead
of permitting the employees to decide for themselves what attitude- they would
adopt 'with regard to the I. L G. W U. the respondent seized upon such fears as
may have existed to build up and strengthen a militant employee opposition' to=
ward that, labor organization. Mrs. Reed's remarks indicated that the I. L...G.
W. U.'was the common enemy of both the respondent and its employees and
promised the employees the respondent 's protection and assistance against that
iii ganization. Mrs Reed disparagingly labeled' David Dubinsky, president of .
the I L. G. W U, a "but-tinsky" who. was seeking to force, the ,respondent's
employees to join that Union. Mrs. Reed further told the employees that she had
"had lots of nice things happen to me in my lifetime but I have never had
anything that made me so proud and so happy" as the receipt of the "loyalty"
,pledge in which the employees unanimously agreed to refuse to acknowledge
any union labor organization . While Mrs . Reed sought to appear as a disinter-
ested defender of the respondent 's employees in the exercise of their right to
join or not to join a labor organization , against the background , of the respond-
ent's widely publicized hostility to the I. L. G W. U and the past repeated re-
minders to the employees that "loyalty" to the respondent -. demanded repudia-
tion of outside union organizations , the undersigned - is convinced that Mrs:
Reed's remarks 36 made it plain that the respondent's attitude toward ' unioniza-
G W. If was conducting organizational campaigns clashes had occurred , involving pickets,
non-striking , employees , and, local police Some of respondent 's employees discussed the
reports and expressed fear that an organizational campaign at the respondent 's factory
might precipitate similar strikes and violence
84 The undersigned is not unmindful that Mrs Reed told the employees "you know that
you'have never been asked whether or not you belong to a union . . . if you want to
DONNELLY GARMENT COMPANY 265
tion had- not changed and the membership ' of any of 'the employees in the
I. L. G. W. U. was not to be tolerated.
The undersigned finds that by its sponsorship and domination of the March'
18 meeting and by Mrs. Reed's talk at said meeting the respondent interfered
with, restrained, and coerced its employees in the exercise of the rights guaran-
teed_in'Section 7 of the Act.
On April 22, 1937, the Kansas City Journal-Post carried an announcement
by the I. L. G. W. U. that Sylvia Hull, one of resondent's operators,, had
been named as a delegate to a convention of-the I. L. G. W. U. Hull appeared
for work as usual at the respondent 's plant on the morning of April 23. A
few minutes after 8 o'clock while she was working at her machine on the 8th
floor of the plant, two groups of employees-each consisting of 12 or 20 per-
sons-successively gathered at her machine. They demanded to know what
'authority she had to represent them at the I. L. G. W. U. convention. Some
of the operators stood on top of nearby tables, others sang Loyalty League
songs. They told Hull that they would not allow her to belong to the Union,
and demanded that she surrender her League pin, which she refused unless
they returned to her the cost of the pin. Shortly thereafter, the operators
rettir°ned;,=ga"ve -Hull 35 cents- and she surrendered-the pin. ' Lena Allison, the
instructor in charge of Hull's section, was present throughout the demoii'stra-
tions, but did not order the girls back to work or take any action of any kind;
Mary Bogart, in charge of the dividing section, was present and pointed Hull
out to 'some of the demonstrators. Ella Mae Hyde, the respondent's employ,
ment manager, appeared on the scene of the demonstration and told the dem-
onstrators to return to work. The operators refused, saying they would not
work while Hull was there. Hyde thereupon took her down to the office on
another floor., They were followed by a number of the demonstrators shouting
that they would not return to work until they heard Hull say she would go
home. Hull then said "I will go home, I didn't know, the- girls felt this way
about it or I wouldn't have done it." According to Hull's testimony, which is
undenied , Hyde told her she would have to go.-home. Hull replied that she
did not want to quit but would go home for the day. Hyde took her employee-
identification badge and Hull left a telephone number through which she might
b e .reached.IT
,Later, during the same morning on which 'the above-described incident oc-
curred, Fern Sigler, an operator who had displayed on that clay for the first
time her I L. G. W. U. membership pin, was subjected to similar demonstra-
tions. ` The employees surrounded Sigler's machine and sang songs , derided
her, took her League pin from her and shouted "get up and go home, we don't
want you in here." The demonstrations subsided when Baty , factory manager;
accompanied by Rose Todd ordered Sigler from her machine to the office. As
Sigler left the floor the operators shouted, "we are not going to work as long
as she remains here." When Baty insisted on sending Sigler home she argued
with him' that she had a right to join the I. L. G. W. U. and it was the em-
ployer's duty to control the employees. Baty replied "We don't go in for the
Wagner Act, we are just running our business here not a law office." Todd
then stated, "We are going to run an open-shop as long as the majority feels
belong that is your own business . . The undersigned cannot agree, however,
that the reference to the employees ' rights rendered them wholly free with respect to
joining unions . On the contrary , in view of the respondent ' s past hostility to labor or-
ganizations , the undersigned believes that the employees could not fail, to be discouraged
from joining the I L. G. W. U or any other labor organization.
IT The alleged discriminatory discharge of Hull based upon this incident is discussed in
Section E , infra.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. '.
that way." After the conference participated in by Baty, Hyde, Todd and
Sigler, Sigler was sent" home. Baty promised to talk to the operators and
"quiet them down" and to call her back when the unrest had ' subsided. De-
spite his promise Baty admitted at the hearing that he did nothing to allay
antagonism toward the I. L. G. W. U., in the plant.
The undersigned finds that the respondent approved of and encouraged the
demonstrations and took advantage of them to reveal once more to the em-
ployees its hostility to the I. L. G. W. U. and "its support of anti-I. L. G. W. U.
activities. Further the undersigned finds that by such acts the respondent in-
terfered with, restrained, and coerced its, employees of the rights guaranteed
by Section 7 of the Act. '
The undersigned further finds that by using,the League and its officers as
hereinabove described for the purpose of impeding and preventing the organiza-
tion of its employees by the I. L. G. W., U., the respondent has interfered with,
restrained, and coerced its employees In the exercise of the rights guaranteed in
Section 7 of the Act.'B
D. Domination and interference with the, formation and administration of the
D. G. W. U.'and contribution of support; interference, restraint, and coercion
1. The formation of the D. G. W. U.
Shortly after the March 18 meeting a committee, which had been appointed at
'the close of that meeting, consisting of Rose Todd, Loyalty League, president,
and the representative of the respondent, Hobart Atherton, an officer of the
League and a supervisor,- and Sally Ormsby, employed Tyler, an attorney.
When Tyler asked for a retainer fee Todd borrowed $1,000 Prom 'the First' Na-
tional Bank of Kansas City on the unsecured note of the Loyalty League, de-
posited the money in the' Loyalty League checking account and a League check
signed by Todd as president and Hartman as treasurer was given to Tyler.
While the first conference with Tyler was limited to the discussion of the possi-
bility of obtaining an injunction against the I. L. G. W. U., after the Act was held
constitutional on April 12, 1937, Tyler suggested the formation of an independent
union.
On April 27, 1937, a mass meeting of all respondent's employees was, held
during working hours, ° on the second floor of the building in which the respond-
ent's plant was located.' Notice of the meeting was given to the employees
through their respective instructors who had been notified by Mrs. Wherry, or
over the factory telephone system. Instructors and thread girls attended the
meeting along with the operators in their sections. Chairs for the meeting were
rented in the name of and"paid for by the Loyalty League.
as The complaint contains no allegation of discriminatory treatment of Sigler. It should
be noted that Sigler is the sister of May Fike, allegedly discharged for union activities,
and referred to in Section E, hereof.
8° The respondent contends that these demonstrations were of a "spontaneous" nature
for which it is not responsible and that the fear and resentment of the employees to the
I. L. G. W. U. was the motivating cause of these demonstrations. The respondent con-
doned, approved, and encouraged these demonstrations and made no sincere effort to check
the demonstrators Neither did it in any way discipline the demonstrators who had dis-
rupted the normal operation of the factory nor did it take any steps to make it possible
for these employees to return to their work in the factory unmolested. No deductions were
made in the wages of time workers who participated in these incidents. See Matter of
General Shoe Corporation and Georgia Federation of Labor, 99 F. (2d) 223 (C. C. A. 5) ;
N. L. R. B. v. Genenal,Motors Corp., 116 F. (2d) 306, 309-310 (C. C. A. 7) ; N. L. P. B. v:
Elkland Leather Co., 114 F. (2d) 221, 224 (C. C. A. 3).
90 See footnote 33,supra.
41 See footnote 34, supra.
DONNELLY GARMENT COMPANY 267
Rose Todd who was still president of the Loyalty League presided at the
meeting., Her opening remarks indicated that she regarded the meeting as a
part of the series which preceded it for she stated she hoped, "this meeting is
going to be as enthusiastic as our last-one was" and explained that she had
called the. meeting "as chairman of the committee of employees." 42 Todd stated
that she had consulted two lawyers, Mr. Gosset and Mr. Tyler, whom she had
known for years, and they advised forming a plant union. She explained that
the Loyalty League, ' being - a purely social organization, would not take care of
the situation ; that another organization was necessary to give them representa-
tion to definitely confer with the proper representatives of the respondent at
times when they felt that it was necessary. She pointed out that a union would
have to be formed if they were to successfully resist attempts of organization by
an outside union. She then told the employees that the new organization would
be called the "Donnelly Garment Workers Union" and although she was dis-
tressed as they were at-having to use the word "union" it seemed to be necessary.
Mr. Tylor was then introduced by Todd. Tyler stated that, "'Some weeks ago
several employees came to my office and employed Mr. Gosset and myself as
legal advisers of the employees, so' that I am in fact at this moment acting as
an attorney for you or for many of you even though you have never seen me
before ... You may believe in unions or -you may disbelieve in unions and still
agree with the advice I am about to offer you. The reason for this advice I am
going. to -give you is that we believe it is to your best interest to organize your
own individual unaffiliated plant union of the employees of the Donnelly Gar-
ment Company and proceed with such a union." Tyler went on to explain that
one of the reasons for the organization was the fact that the I. L. G. W. U.'
had-sent a representative to its national convention and "in order to stop this
and to make it clear that you are speaking for yourselves through your own
representatives whom you choose, we think your own union is desirable." He
also stated, "I do'not think this action can or will be considered as an act of
unfriendliness to your employer. I believe they recognize your right to take
this step and it isn 't an unfriendly act to them. [Italics supplied ] In fact, it is
much better for them and yourselves for you to have your own union with your
own representatives rather than having a group trying to represent outsiders
from New York." Todd then said, "Well, we are together as an'entire group of
employees. Let's form this organization." It was unanimously decided without
any discussion and by a unanimous vote of the approximately 1,300 assembled
employees to form such a union. A nominating committee.of five was then ap-
43 The meeting preceding it was, according to witnesses called by the Board, the meeting
of March 18 at which Mrs. Reed spoke. The company claimed a meeting took place either
the last of March or the first of April, however, the many inconsistencies in the evidence
offered by the respondent respecting this meeting, and its entire improbability in view of the
complete circumstances compels the undersigned to conclude that there was no meeting
between March 18 and April 27. The borrowing of $1,000 from the bank -on March" 30
for the purpose of paying Tyler a fee is inconsistent with a meeting on or about that date
at which money for Tyler was supposedly raised Saucke testified that she moved the as-
sessment,at a meeting on or about March 30 for paying the fee, yet she further testified
she never heard of Tyler prior to April' 27 Atherton, Warth, Barnes and Dean on the
other band testified that at the meeting on or about March 30, Rose Todd explained about
the committee seeing Tyler., This seems unlikely since the minutes of April 27 show this
to have,occurred at that meeting. Atherton testified that he believed Eva Liberman made
the motion that each employee contribute 50 cents for the fee. Saucke when first ex-
amined on cross as to whether she made a motion in the spring of 1938 to assess each
employee $1 to pay Tyler his fee had no recollection of making such a motion but when
confronted with the minutes of the 1938 meeting remembers that she made such a mo-
tion both in 1937 and again in 1939. This alleged meeting is furthermore the only meet-
ing for which no minutes or other written record was furnished by the respondent or the
independent union. °
268 DECISIONS OF NATIONAL LABOR R'E'LATIONS BOARD
pointed by Todd to select a slate composed of a General Chairman and eight
Group Chairmen toaserve as representatives and officers of the new organiza-
tion. While the committee retired to select its nominees, charter membership
cards bearing the name "Donnelly Garment Workers Union" previously prepared
were distributed for signature. Thereafter Tyler read the bylaws" which Todd,.
Atherton and Ormsby had -requested- him to "draft. They ' were - immediately
adopted without alterations. The nomination committee returned to the meet-
ing and presented the names of nominees for General Chairman and Group
Chairmen who were unanimously elected as a group with Rose Todd as General
Chairman. Thirteen hundred charter membership cards previously distributed
were collected and the meeting declared adjourned."
The facts as related above, make it plain that the organizational meeting of the
D G. W. U. was planned, organized and under the complete control of repondent's
representatives. Under all the circumstances the undersigned concludes and
finds, that the concept of an independent union originated with respondent's
supervisory employees and further, that the respondent through the activities.of
its supervisory employees gave approval, and lent assistance and encouragement
to the D. G. W. U.
^r'^Meiribership'"andlificipafion by other supervisors in-the-D. G. W. U.
In addition to Todd's and Atherton's membership and participation in the
D G. W. U. as representatives of the management, the instructors and thread
The bylaws indicate the purpose of the D. G. W U. was in part the same as- that of
the Loyalty League which, in the words of Rose Todd, had become Inadequate to give
the employees tie "protection" they needed Article II of the bylaws provides inter atia:
The purpose of this organization (D. G W. U.) shall be . . . the protection of
employees and members of this union from coercion, intimidation, violence, or threats
of violence in order to force them to join unions organized and dominated by outsiders
and not employees of this plant. '
44 The committee of employees, Todd, Atherton and Ormsby, were instrumental in
calling the meeting of April 27, "after a general request from a great many employees
that we try to do something for our own protection." This same group had been
appointed as a committee at a meeting sponsored by the Loyalty League on March 18 for
the'same'.'purpose. The Ied'gerisheets-of tbOKaiisas City, chair,re1ftiiP*co!mpany =Show the
chairs were rented by the "Nellie Don" Loyalty League to be used on that date and
cancelled check- of -the Loyalty League shows the League drew 'a check -in favor of the
chair rental company in payment therefor. The respondent's telephone operator called
on the inter-departmental telephone system each- department of the building and gave
notice that Todd was calling a meeting of employees on the second floor. Todd presided
at tl-e meeting but denied that she was acting in her capacity as President of the League.
Todd, out of the $1,000 borrowed in the name of the League, paid $500 to Tyler as a
retaining fee. Though it is contended that the $500 retainer fee was in payment only
for advice concerning it projected injunction suit against the I. L G. W. U. for the pro-
tection of the respondent's employees, the undersigned is convinced that the fee covered
Tyler's services in connection with the, organization of the D. G. W U., the proposed
injunction suit having been rejected as a method of protection. Instead, Tyler advised
the League committee to form an unaffiliated union. He attended the April 27 meeting
and' read the bylaws he had previously drafted on the'instruction of the League com-
mittee. Thereafter in May or June 1937, he drafted proposals for a closed shop contract
and a wage agreement hereinafter referred to, with the respondent Tyler received no
fees from the D 0. W. U until November 23, 1937 which was 7 months after'its forma-
tion and at a time, when the D. G. W., U. had undertaken other legal action involving
court litigation. Minutes of the group chairman of the D. G. W. U. for June 15, 1937
records that Rose Todd stated in explanation of the fee ". . . .. we'pald Mr. Tyler a $500
retainer fee. He helped us write up our bylaws and working agreement and will advise
us and help us when we need it"
From all the circumstances above related the undersigned finds that the meeting of
April 27 was sponsored and financed by the Loyalty League through Todd, Atherton and
Ormsby, and fu'-ther that the League financed the employment of Tyler, paid him a
retainer fee of $500rand that the fee covered the cost of his services In connection with
the formation of the D. G. W. U. and the drafting of its bylaws.
DONNELLY GARMENT COMPANY 269
girls all attended the meeting of April 27 and signed cards for membership in
the D. G. W. U., Dewey Atchinson, production engineer, joined but resigned
July 14, 1937. The minutes of the meeting show that instructors and thread
girls and others closely allied with the management regularly attended and
participated in the meetings. At_ five different meetings, December 7, 1937,
March 8, 1938, April 26, 1938, January 10, 1939, and February 7, 1939, Stella
Willis, an instructor, participated in the meetings. On one occasion, she, sug ,
gested' an assessment 'of 50 cents per member to pay`Tyler"a further fee. While
the motion was not put at that meeting, at a meeting held shortly thereafter,
upon the motion of Helen Little, an instructor, an assessment of $1 per member
for Tyler's fee was voted. In making her motion, Instructor Little stated:
I think most, of the employees realize that if they belonged to the C. I. O.
or the A. F. of L. they would be assessed quite a little bit more. I think
the minimum is $1.25 per month, and I think everyone would be willing
to help out and donate $1. -
In 1939 Harry Grogan, whose name was listed on the payroll under the heading.
"Instructors and Floor Ladies," urged the employees to vote an assessment of
$2 apiece for Tyler. On this occasion Todd pointed out that low wages were
paid in I. L. G. W.,U. shops, and Grogan added that even $10 was not a third
or even fourth of what it would have cost them, impliedly referring to the
I. L. G. W.,U., so,thryt,$2;,e?ch,would,befair,for•Tyler.,s fee.',
At the election of D. G. W. U. officers in April 1938, five thread girls in suc- -
cession, Nellie Riggs, Jessie Mudd, Rose Hendricks, Edna Rawlings, and Clarice
Martin and two persons whose names appeared on the payroll heading "Buying
Records,""' Hilda Richmond and Veda Hoyland either nominated or seconded the
nomination of members of the two nominating committees which in turn recom-
mended nominees for officers of the D. G. W. U. Both committees nominated
were unanimously elected. The two nominating committees proposed their'
respective slates of officers, each of which recommended Rose Todd for chair-
man, and Marjorie Green for secretary, both of whom had held these positions
in, 1937, for treasurer, Jack McConaughey, ,who had been on the board of Group
Chairmen in 1937, and.for representatives of the mechanics, Walter Higgins.
However, despite this= close similarity on the two slates and although no cam-
paigning was done for those_ nominees why a names appeared oq only one"slate,
when-a= standing. vote was taken, Todd; who'-was presiding, called on two instruc-
tors who were present at the meeting, Lola Skeens and Stella Willis to give
their opinions as to which slate received the larger vote.
The election in April, 1939, repeated in many respects the occurrences of the
previous year. However, this time Rose Todd herself appointed the two nomi-
nating committees without going through the formality of nominations and unan-
imous elections. Hilda Richmond, whose closeness to management is indicated
by appearance of her name on the "Buying Record's" pay rollSB was named by
Todd as chairman of one of the committees and Harry Grogan whose name
appeared on the pay roll under "Instructors and Floor ladies" was a member
of the other. These two nominating committees each brought in slates naming
Todd chairman, Jack McConaughey treasurer, Marjorie Green, secretary, and
Walter Higgins representative _of mechanics. Again the election was by an open
standing ' vote.,-
Heath Cowan, in charge of the receiving department ; Marvin Price, in charge
+5 This pay-roll heading' covers the executive force of the factory, including beads of
departments such as factory manager, head of the retail store, personnel manager, and
Mrs. Wlerry who was variously described as factory manager and head of instructors.
' See footnote 45, 8upra., '
276 DECISIONS OF NATIONAL LABOR R'E'LATIONS" BOARD
of building maintenance; and Ortense Root, in charge-of the sample department
were members of the D. G. W. U. and; as shown by its minutes, attended meetings
and participated in its affairs. Ted'Scoles, in charge of the cutting department;
Lena Tyhurst, in charge of the inspection department ; and Mary Bogart, in charge
of the dividing department were also rlembe'rs of the D. G. W. U. At various
times the question was raised by employees as to whether departmeiit'heads and
instructors should have the right to be members of the D. G. W. U. and attend
and participate, in its meetings. However, Todd's statement of the D. G. W. U.
policy that all employees except the executives Mr. Keyes, Mrs, Keyes, Mr. Green,
Mr. Baty and Mrs. Hyde were eligible remained,in effect. Employees, neverthe-
less, at various times expressed the view that the presence of such persons at
meetings excluded them from speaking freely of their complaints. In a meeting
of the D. G. W. U. Group Chairmen, Hobart Atherton when he stated, "I think
department heads, instructors and so forth, shall have all the privileges of mem-
bership except that they shall not be allowed the right to vote," realized the danger
of participation by supervisory employees in the affairs of an organization devoted
to the improvement of the employees economic relationship with the employer.
Inasmuch as the respondent through its supervisory employees' membership
and participation in the activities of the D. G. W. U;, continued its control and
direction of that organization, the undersigned finds that respondent is responsible
for their activities, and that they were acting for and in behalf of the respondent.'
3. The contracts ; closed-shop, checkoff and piece-work rates,
On April 28, 1937, the day following the D. G. W. U.'s organizational meeting,
Rose Todd took the membership cards to Mrs. Reed, President of the respondent,
and stated to her the D. G. W. U. had been organized by the unanimous vote
of the employees and represented a majority. Mrs. Reed assured her that the
respondent would consider the matter. On May 6, 1937, the Group Chairmen of
the D. G. W. U. met with Mrs. Reed and told her that they would want a contract
covering hours, wages,-and working conditions "which up to now have been satis-
factory" and that they would like a closed-shop. Mrs. Reed at once replied,
"I understand that is very essential to industrial peace." The D. G. W. U. then
stated that they wished to pay' part of Todd's salary. Mrs. `Reed in agreeing;
stated, "I do not feel at the-present time that you [Todd] need give all of your
time to the union." 47
Tyler' thereafter prepared a draft of the proposed agreement containing a
closed-shop provision, which was approved by the Group Chairmen 'of the
D. G. W. U. on the morning of May 27. Tyler read the contract aloud to Mrs.
Reed and the other representatives of the respondent and urged that it be
given prompt attention. Mrs. Reed replied : "f would like to, have a little time
to, look over this agreement. However, I think it is'very much in line-and
there will possibly be one or two little changes." Later she added, "I think
the only changes it -will be necessary to make will be just legal phraseology-the
spirit of this agreement is satisfactory." At the close of the conference it was
agreed that Mrs. Reed and other representatives of the respondent would meet
with Todd and Tyler at 3 o'clock that afternoon, and that Tyler would then'
report the outcome to' the Group Chairmen of the D. G. W. U. at 3:30 o'clock.
The D. G. W. U. committee met in the afternoon as agreed . Its minutes
AT From these facts it seems clear , and the undersigned finds, that recognition as the
exclusive bargaining agent of the employees was accorded the D. G. W. U. almost as soon
as it was organized , although no statement of recognition in writing appears until the
contract between the respondent and the D. 'G. W. U .' was signed on May' 27, 1937.
DONNELLY GARMENT COMPANY 271
disclose that Tyler reported that the respondent had'proposed three or four
modifications, the acceptance of which he recommended to the committee.
One change suggested by the respondent was the insertion of a provision lim-'
sting membership on the D. G. W. U. bargaining committee to persons em-
ployed by the respondent for a period of at least a year immediately pre-
ceding election to such committee. Tyler explained to the committee the
purpose of this provision was "to eliminate the possibility of someone getting
on this committee who is not a true representative of the employees and who
may be working here merely to act as a traitor to the company." The agree-
ment as modified was then adopted by the committee and signed by the parties.,
Subsequently, on June 22, 1937, a supplemental agreement was • entered into
between the D. G. W. U. and the respondent establishing minimum wages for
time workers and minimum weekly guarantees to piece workers. At the re-
quest of Todd, Baty, factory manager, supplied her with a detailed statement
of wage rates in the factory and on the basis of this information, Tyler pre-
pared a contract which was accepted by the respondent without substantial
change. Terms of, the supplemental agreement were never submitted to the
D. G. W. U. membership for approval before or after its execution, although
it set the employees wages for a period of one year with a provision for an
automatic extension. The D. G. W. U. demanded a minimum weekly wage of
$16.50 for the respondent's lowest paid piece-work operators. Todd explained
that the I. L. G. W. U. had announced that-it was seeking a $16 weekly min-
imum in the garment industry, and she therefore thought it a good idea to
improve a little on that minimum to defeat efforts of the I. L. G. W. U. to
organize the respondent's employees. The respondent acceded to this demand.
By its terms the original agreement of May 27, 1937, was to remain in effect
for a period of 2 years while the expiration of the supplemental wage agree-
ment of June 22, 1937, was set for July 1, 1938, with a provision for automatic
extension from year to year unless either party gave written notice to the
other of its desire to terminate it. On June 2, 1939, the original agreement
of May 27, 1937, was extended for a 2-year period without any modification
except to provide for its automatic renewal. These two agreements have
continued in effect without change.
In August `or September 1937 the-company agreed; at the request of the D. G.
W. U., to a check-off of the monthly dues of the members. Employees signed
a card prepared and distributed by the respondent agreeing to permit the dues
to be checked-off at the end of each month. Pursuant to this agreement the
respondent submits to the D. G. W. U. a memorandum showing the number of
employees on the. pay roll during the month and a check covering their dues.
The D. G. W. U. issues no receipts, keeps,no record of individual dues payments
and has no means of knowing what individuals paid dues during any month.
,The General Chairman or Treasurer of the D. G. W. U. were unable to state
at the hearing what proportion of each month an employee must work to entitle
the'D. G. W. U. to collect the dues from the respondent. The checks turned over
for 'each month subsequent to July 1937 range from about $250 to $325 The
amount deducted from each employee appears on the employees' respective check
stub. Although the D. G. W. U. has never furnished the respondent with a list
of its members, every employee of the respondent, upon the assumption that all
employees under the closed-shop are eligible to belong to the D. G. W. U., except
the salesmen whose dues the company's decline to check off, authorized the
checking off of the dues.
Soon after•the D. G. W. U. was organized, the Group Chairmen, who composed
its executive committee, appointed a committee to represent the D. G. W: U. in
272 DECISIONS OF NATIONA1 LABOR RELATIONS BOARD
adjusting piece-work rates with the respondent. Some 600-to 800-of the re-
spondent's 1300 employees were paid on a piece-work basis, so the procedure by
which the piece-work rate-is checked is concededly "the most important thing
the individual operators have to bargain for with the company." The committee
appointed-consisted-of Lulu Nichols, Josephine-Spalito, and Rose Todd. Nichols is
a supervisory employee and Spalito her assistant, both of whom are employed
by the respondent for the purpose-of establishing for,it the piece -work-pricesspaid
the employees. Nichols was described, by Mrs. Hyde, as an "executive" of the
respondent, and admittedly has final authority in setting piece-work prices in the
first instance, and of adjusting subsequent complaints of operators that the price
set is too low. Nichols' duty is thus described by Mrs. Reeves, who testified :
A. After a garment is designed, that particular garment is analyzed very
thoroughly by Mrs. Nichols, who was a former piece-work operator ; Jose-
phine Spalito, a former piece-work operator, Rose Todd,' a former piece-work
operator. Prices are then discussed with the operator and also the
instructor ... '
Q. If there is any employee who thinks the price is,too low, what redress
does she have?
. A. She discusses it with the people who set the prices-Miss Todd, Mrs.
Nichols, and her instructor ...
Q. Whoohas'complete,charge of,the making price rates after the complete
report is made by this committee?
A. Mrs. Nichols.
Thus the same persons who set rates on behalf of the respondent in the'first
instance are also representatives of the D. G. W. U. for the purpose of protesting
and negotiating in regard to those rates in behalf of the D. G. W. U. and the
employees. -
The respondent 's immediate recognition of the D. G. W. U. and its ready
acquiescence to a closed -shop and'check-off through the medium of an organization
which allowed it to retain control of -the piece -work rates, when viewed in the
light of respondent 's persistent hostility to independently functioning unions
clearly reveals its determination to prevent the employees from enjoying the
rights conferred upon them by the Act, by forcing them to become members of an
impoxent , collective . bargaining , agency , to" which, ;-by,; its ; closed-shop-andwcheck;off.
it had given assurance of financial stability.
4. Respondent 's contribution of support to the D. G. W. U.
In addition• to the holding of the organizational meeting of the D . G. W. NU.
on respondent 's time's the succeedinghree or four membership meetings were
likewise held during working hours . Thereafter regular monthly meetings, of
the general membership were held after hours, but they continued to be held on.
the second and later the first floor of the building in which the factory is located.
Prior to May 10, 1937, on which date the respondent took over the second floor
under lease, the D. G. W. U had obtained the permission of the landlord to use,
without charge , the second floor as a meeting place. After May 10, 1937, the
D. G. W. U . continued to meet on the second floor until April 1938 when the re-
spondent, remodeled , a portion of the .first ,floor- to,senve:as an auditorium . From
that time on, this became the meeting place of the D. G. W. U. Although the
D G W. U. met on the property under lease by -the respondent monthly from
May 1937 on , it was not until November 1937 that the question of paying rental
was raised . The first rental payment was made in April 1938 , and consisted
'e See footnote 33, supra.
DONNELLY GARMENT COMPANY 273
of $3 per meeting, held during the preceding-twelve months. It is, plaint that
,prior to November 1937, rent=f`ree use of the 'respondent's premises was con-
templated and that the retroactive payment of rent-was an afterthought.
Rose Todd, the General Chairman, twice'aniiounced in meetings of the D. G. W. U.
that such use of the respondent's facilities was entirely proper. Meetings of
the Group Chairmen, who composed the executive committee of the D. G. W. U.,
prior to May 1938, were held in the office of Beulah Spilsbury, in charge of the
designing department and thereafter in the auditorium on the first floor. No
rental was ever paid for the use of this property."
The general meetings of-the D. G. W. U. and the meetings of the Group Chair-
men were called through the respondent's facilities, either by the use of the
respondent's inter-departmental telephone system or by sending a so-called
I. D. M. to each department of the factory through the -respondent's regular
messenger service. Announcement' of the meeting over the respondent's factory
telephone system was accomplished by Todd notifying the telephone operator
to call each department.G° Each section has a telephone, and it is the duty of
the instructor or thread girl to answer the phone and convey any message that
might be given either to the employees generally if it was a general meeting or
to the specific employee, in question if it was a Group Chairmen meeting. The
inter-departmental telephones were not available to the employees generally
and could only be used for calls by supervisory employees pertaining to official
business. An I.' D. M is the respondent's term for inter-departmental mem-
oranda. When Todd wished. to call a- meeting of the employees generally, or of
the Group-Chairmen, she regularly,•prepared'a notice on the company's I. D. M.
paper which was sent to each section of the factory by the respondent's mes-
senger service. Upon the arrival of the I. D. M. in any section, it was the duty
of the instructor or thread girl to read the I. D., M. and pass it to the operators in
the section.
Miss Todd also utilized the I. D. M.. system for collecting assessments and
sending instructions pertaining to D. G. W. U. business to the members on the
respondent's time The D. G. W. U. receives its mail at, tbe,factory,through re-
spondent's messengers and freely uses the factory bulletin board.
- Piece work operators who served as Group Chairmen or officers were paid by
the respondent for the time lost at work while attending D. G. W. U. business, the
time workers being allowed to take time from work with n6 deductions from
their pay.
40 The D. G. W.-U.'s treasury book -shows only two-payments to the respondent for use
of space. Both of these were for meetings,of the,entire membership, as may-be -seen
'from'"the testimony of McConaughey concerning the first of these payments and the fact
that the second payment was "for 13 meetings" one less than the number of general
membership meetings as shown by the minutes of the D. G. W. U. to have taken place
between the two payments. -
60 Todd testified : "In using our house telephone system in that manner, we have what
we call floor girls or thread girls in each department. It is absolutely her duty to
answer the phone and convey any message that might be given. That was what was
done." -
5'Miss Todd made the following announcement at a D. G. W. U. meeting in March 8,
1938: "I will tell you while we are all together how we will handle the payment of
this ... I would suggest ' that we appoint one person in each department, and I will
appoint that person myself, and will send out an I. D. M. with instructions on how to
collect this money. It is my idea as to what is put on that I. D. M. The name of the
person who is to collect that money, and have that, person list the names of each person
in the department. When this is turned in, put the money in an envelope and return
it to me between 11 : 00' and 12 : 45 on the 7th floor, or between 4: 00 and 5: 00 on the
10th floor, with the name of each member paid or unpaid, your name and section number,
with the money." _
274 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rose Todd was a full time employee of -the respondent . While a request,was
made to Mrs . Reed immediately after the formation of the D. ` G. W. U. that it
should pay part of her salary, she continued to receive a full salary of $130 a
month from the respondent and in addition thereto received . $65 from the
D. G. W. U. Despite receiving her full salary from the respondent ; the nature
of the work given her by the respondent to perform permitted her to devote as
much time as she desired to the D. G. W . U. business without deduction from her
pay. Thus she carried on the business of the D. G. W . U., representing 1,300 or
more employees , during the respondent 's normal working hours . Soon after for-
mation of the D .' G. W. U. at the respondent 's Kansas City plant, Todd went to
the respondent 's temporary auxiliary plant at St . Joseph, Missouri , to organize
the employees in that factory . She was absent from her employment about a
half day without a salary deduction. -
At a meeting on May 11, 1937 , Rose Todd announced that "our ( D. G. W. U.)
work will be' conducted " at a desk on 'the ninth floor of the plant and that she
could be reached on union business at "any time necessary ." Todd's desk was
the D. G. W. U.'s only office. Its records were kept there in a file belonging
to the respondent and its business - was regularly transacted by employees who
went there for that purpose . The check -off cards which were printed and distrib-
uted by the respondent were signed and turned in at this desk over a two weeks'
period by employees who came there from all over the factory . Membership cards
of those who were absent from the April 27, 1937, meeting , or' of new members
were signed and left at this desk . Grievances of, members were reported to
Todd during the working day and she attended to them during her hours of work.
She collected money for the D . G. W. U. on the respondent 's time and directed
the D. G. W. U representatives to do the same : When Todd left on her vacation
in December 1937, she , informed the Group Chairmen that a substitute, Miss
Riddle, would be at the desk from 11 a. m. to 12 :45 each day-much longer than
the usual half hour lunch hour-to transact D G. W. U: business.
The membership cards of the D. G. W. U . were mimeographed after working
hours by employees in the respondent 's circular department , on a machine owned
by the respondent . • Copies of the D. G. W. U. bylaws were produced on a ditto
machine belonging to the respondent . The D . G W. U. o vns no typewriter, and
the secretary of the D. G. W. U . has often used a typewriter owned by the
respondent' for typing the minutes of the meetings of the D. G. W., U. and of the
Group Chairmen
It is apparent from the facts set forth above, and the undersigned finds, that
the respondent has contributed a large measure of support to the D. G. W. U.
SUMMARY AND CONCLUSIONS
From the foregoing facts, conclusions , and findings , it is clear that, notwith-
st'ancling ' the contention by the respondent and the ' D G W. U . that the
D. G. W. U.'s formation was the - result of the employees ' own choice of a
collective bargaining representative , the respondent • has not permitted the
employees to freely exercise the right of self-organization free ' from employer
influence and domination.
Prior to the effective date of the ' act the respondent adopted a policy of
opposition and hostility to labor organizations generally and to the I. L G. W. U.
specifically . In furtherance of this policy , the management made it plain to
the employees that "loyalty" to the respondent was synonymous ' with - the
rejection of membership in any labor , organization . ^ To solidify- its purpose, the
respondent inspired and' dominated the Loyalty League, which had,for its
primary purpose the frustration of the , efforts of the I. L. G. W. U . to organize
DON\TELLY GARMENT . COMPANY 275
the employees . In • 1937 , when the I. L. G. W . U. announced a renewal of its .
efforts to organize the respondent 's employees after the Act had been held
constitutional , the respondent through the medium of its Loyalty League and
supervisory employees formed the D. G. W. U. to prevent its employees from
selecting any "outside " labor organization as their representative . It was the
League's officers and representatives of the management , Rose Todd and Hobart
Atherton who hired the attorney who planned the D . G. W. U. and wrote its
by-laws. It was the League which borrowed $1,000 at the bank on the security
of its members , including Rose Todd and other supervisory employees, with
which to pay a retainer fee of $500 to the attorney , a part of which retainer
was for advice and services in connection with the formation of the D G W. U.
The meeting of April 27 , 1937 , at which the D . G. W. U. was formed was
sponsored and financed by the League. Rose Todd , at the time President of
the League , directed and dominated the course of the meeting . The employees
had,heard nothing of the formation of a labor union prior to the meeting, but
under the, stimulus and pressure provided by the respondent they emerged from
that gathering with a labor organization of approximately 1300 members. It
is axiomatic that a labor organization free from employer domination does not
persuade employees to join its ranks so rapidly . Like the League , membership
in the D. G. W. U . includes a large number of the respondent 's supervisory
employees whose presence inevitably prevents the organization from being free
of the respondent 's domination Through Rose Todd , General Chairman of
the D . G. W. U., the respondent has retained , complete control of that
organization.
The record conclusively shows that the respondent contributed substantial
support to the D . G. W. U. The organization has no office or headquarters of
any kind apart from th respondent 's factory . Respondent 's facilities have been
freely used in carrying , on the business of the D. G. W. U. and while the
respondent contends it had no knowledge of the use of its various facilities, the
practice has been so persistent and 'frequent that the undersigned is of the
opinion that such a contention , is impossible of belief and, finds that the
respondent had knowledge of these activities.
Rose Todd is allowed to take whatever time during working hours that is
necessary for the handling of D. G. W U. business without any deduction from
her salary and makes a practice of taking up its business at any time during
the day. Also Todd, as President of the League and General Chairman of the
D. G. W. U., was accorded almost complete freedom to roam through the factory
engaging alternately in performing duties in connection with the factory's
operation and handling matters relating first to the Loyalty League and 'then
to the D. G. W. U. without interference or, objection from the respondent.
These facts demonstrate that the respondent has permitted and encouraged
Todd to make use of the respondent 's time in conducting the business of the
D. G. W U. This necessarily conveys to the employees of the respondent its
approval of the League and the D. G W. U. That , the respondent lent encour-
agement and assistance to the D. G W. U. becomes- even more evident when
its cooperative attitude toward the D. G W. U. is compared with the hostility
with which it met the efforts of the I. L. G. W. U. to organize the employees.
The completeness of the respondent's domination becomes more clear, as
shown by the personnel of the D. G. W. U. committee for the adjustment of
piece-work rates Two of the three of this committee are persons employed
by the respondent to set piece-work rates in the first instance and when one
of these two , Lulu Nichols , is the "respondent 's authority on the finality of the
rate, the result is that the respondent sits on both sides of the bargaining table
and the aggrieved operators are left without any means of independent col-
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lective bargaining with regard.to.,piece-workrates, ordinarily, a ,matter,,jealousiy
guarded for the promotion of the employees.
Negotiations between the respondent and the D. G. W. U. with respect to
the provisions in the Articles of Agreement signed on May 27, 1937, were com-
pleted within a few hours, and signed on the same day it was submitted to
the respondent. Despite Mrs. Reed's determined opposition to a closed-shop,
she made no protest when the D. G. W. U. made such a proposal. She 'stated':
"I understand that [a closed-shop] is very essential to industrial peace."
The closed-shop was granted and membership in a labor organization of the
respondent's choice became obligatory upon,the employees, buttressed with a
check-off-of dues, to guarantee financial stability to the organization that the
respondent initiated and thereafter controlled. ' '
On all the evidence, the.undersigned.finds.the respondent doigin2ted and in-
terfered with the formation' and administration of the D. G. W. U. and con-
tributed support thereto, and that the respondent thereby interfered with,- re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
The D. G. W. U.* is not and never has been the lawful representative of the
respondent's employees for the purpose of collective bargaining in regard to
the rates of pay; wages, hours of employment, and other conditions of employ-
ment.' Under these circumstances, the undersigned finds that the contract, sup-
-plemental wage agreement, any extension, renewal, modification , ^or: thipple-
.ment'thereof, and any superseding contract between the respondent and the
D. G. W. U. are void and of no effect. Independent of this finding of tale
invalidity of the above mentioned contracts, the closed-shop provision is invalid,
having been made with a labor organization established, maintained, and as-
sisted by unfair labor practices',, therefore, the closed-shop provision does not
fall within the proviso of Section 8 (3) of the Act.
The undersigned further finds that the respondent, by entering into a con-
tract containing a closed-shop provision with the D_ G W. U., discriminated
in regard to the hire and tenure and other terms of employment, of its em-
ployees, thereby encouraging membership in the D. G. W.. U. and discourag-
ing membership in the I. L. G. W. U., and that it thereby interfered with, re-
strained, and coerced the employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
In addition, the undersigned concludes and finds that the respondent, by using
the dominated Loyalty League to impede and prevent the employees free .choice
of labor organization,, by permitting the`circulation and, regtiestirig the'employees
to sign the pledge of March 2, 1937, and by the speech of Mrs. Reed at the March 18,
1937 meeting, has in these and other respects set forth above interfered with,
restrained, and coerced the employees in the exercise of the 'rights guaranteed-
in Section 7 of the Act. k
E. The alleged discharges
The amended complaint alleges that the respondent discharged Sylvia Hull
on or about April 23, 1937, and May Fike on or about April 26, 1937, and thereafter
refused to reinstate them because they had joined and assisted the I. L. G. W. U.
Sylvia Hull was employed as a sewing machine operator by the respondent,
with one. interruption,of 7,months for a.period of 8 years. She was originally
employed in the spring of 1928 and her employment was terminated on April 23,
1937. Hull became a member of the I. L. G. W. U. on March 23, 1937, and on
April 22, 1937, it was publicly announced in a Kansas City newspaper that she
had been selected by the I. L. G. W . 'U. to represent the respondent 's employees
at a,convention of that organization.
,
i
DONNELLY,GARMENT COMPANY 277
The undersigned has previously described the anti-union demonstration by
, employees against Hull on the morning of April 23, 1937, which the undersigned
found was condoned and encouraged by the respondent. During the demonstra-
tion, Mrs., Hyde, respondent's employment manager, removed Hull from her 'ma-
chine and told'her that she would have to go home. Hull replied that she did
riot want to quit but would go home for the day. Hyde took her empl'oyee-identifi-
cation card which was necessary for admission to the factory. When Hull asked
how she would get back into the, plant, Hyde told her that she would come down
to the door and admit. her. At the same time, Mrs. Hyde took the telephone
number of a neighbor, through whom Hull had stated she could be reached-and
agreed to call her, requesting Hull to get m touch with respondent if she did
not receive-a call inasmuch as the telephone number that Hull left was that of a-
neighbor. Hull thereupon left the'plant. Hyde testified that the next morning-
and on.another occasion she attempted to reach Hull through the number Hull
had= given her in order to recall her to work, but was, unable to reach Hull and
that since that time, she has never applied for reinstatement. Hull did not testify
and the -record- is silent as to whether she ever'received( Hyde's message which it
mdis found Hy e atte pted to deliver. ' -
Respondent contends that Hull voluntarily left the employ of the respondent.
This "contention -was based on Hull's statement -made when a number of the
anti-union demonstrators demanded that she -go home, and also from thdo fact
that she did not seek to return. However, when Mrs. Hyde told her she would
have to leave the plant, Hull refused to quit her employment but agreed to go home
for the day. These facts plainly show that Hull did not voluntarily give up-her
position with the respondent and only'acquiesegd in aI one day lay off under
pressure from the respondent. Furthermore, from the fact that- Hyde' agreed to
call her indicates that'the respondent did-not consider Hull's-statement a'resigna-
tion of her employment.
The undersigned finds that Sylvia Hull did not voluntarily leave the employ-
ment of the respondent but-that she was temporarily laid off by the respondent
because of her membership in and activity on behalf of the I L. G. I V. U. The
undersigned, therefore finds that the respondent discriminated in the regard to -
her tenure of,employment, thereby discouraging membership in-the I. L G. W U.
and interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed,in Section 7 of the Act. The undersigned further finds
that under all the circumstances the, respondent's efforts to communicate with
-'Hull as to her lay off was equivalent to an offer of reinstatement and the respond-
ent has not discriminatorily refused to reinstate her within the meaning of
Section 8 (3) of the Act. -
May1Fike was employed by the respondent sometime in'1927 and was, except
for a 2 year period in 1931 and' 1932, employed continuously until May 1937 -
when she left, at her request on a vacation. May Pike joined the I. L. G. W. U.
on March 15, 1937! The fact that Fike'was a member of the I. L. G. W. U:
was not known to the respondent, nor that she was the sister of Fern Sigler,
who was-excluded from the"factory in April 23, 1937, as a 'result of a demon- ,
stration , hereinbefore referred to.
I Pike's testimony , as to conversations with respondent 's agents and an, alleged
discriminatory lay off, if credited , provides a foundation , which would, afford
an inference that her relatignship to Sigler and her union ' membership, was in
ft part at least 'a motivating reason for_the refusal of the, respondent to reemploy
530105-4&-19
)
1
278' DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
her. after she left on a vacation which was ^ authorized . Thq undersigned
does not lcredit this testimony of Fike."
Sometime in the latter part of April , Fike advised her instructor that,she
desired to take a 'vacation . The instructor referred Fike to Mrs. Hyde, the
employment manager. ' Fike explained to Hyde that she wanted the privilege
of taking her vacation at a time other than a period set for all of the operators
in,the section , because her husband was having a vacation at that,particular
time. It is undenied that it . is the customary , practice, of the respondent to
grant vacations to .the operators in-a section at-the same time. 'Hyde advised
Fike that if she did take her vacation , her employment would be terminated
and her return- to work would depend upon whether there was any work 'for' '
her. Pike left on her vacation and upon her return eaJed Hyde ' and' was
advised that there was no work for her at that time and to call later. Fike
called on several , occasions thereafter and was advised by Hyde that there-was
no work ' available and to call later. On the last occasion Hyde told Pike-
that she would call her when the respondent needed her, and as far as the
record , indicates,"Fike , up to July 1939, had not been called for work.
Respondent defends the termination of Pike's employment on the grounds
that she - left, voluntarily on April 30 , 1937 , after being told that if she' took
her vacation at that time her employment would be terminated . The under-' ,
signed is of the opinion that Fike was so advised by Hyde at the time she
insisted on leaving on her vacation , and the undersigned finds that , May Fike'
left her, work voluntarily on April 30,' 1937, terminating her employment with "
the.respondent. `
The undersigned finds that May Fike .was not discharged because of rela--
tionship to Sigler or her membership in the Union. The undersigned further
finds that,, in view of all the circumstances , there is no substantial evidence to
indicate that she was refused reinstatement for these reasons.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON'COMMERCE
I 1
The undersigned finds that the activities ofthe respondent'set forth in SeN-
tion 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 conunerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found th:2t the respondent has 'engaged in certain unfair
labor practices , the undersigned will recommend 'that it cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the
Act. ' "
52 The undersigned is not unmindful of the fact that Fike worked on the same floor, with
Sigler and was present during the demonstration of April 23 , 1937,'nor of the fact that
Pike testified that Pearl Atchison , her instructor , spoke to her after the demonstration and
inquired if she were a' member of the I L G W: U , 'warning Fike that she was in danger
of losing her job because of the situation Neither does the undersigned believe that there
was any discrimination in Pike's lay off shortly thereafter , it appearing that an error was
made in the selection of an operator'/for lay off and she was immediately returned to work.
The undersigned is convinced from all they circumstances , that Pike's testimony with re- -
spect to the incidents occurring before she took her vacation were after-thoughts and fin
attempt by her to make it appear ' that the respondent 's refusal toyreinstate her after an
unauthorized vacation was discriminatory k,
DONNELLY GARMENT COMPANY 279
The, undersigned, having found that the respondent has dominated and inter-
fered with the formation and administration of the D G. W U. and contributed
support to it, in order to effectuate the policies of the Act and free the employees
of the respondent from such domination and interference and the effects thereof,
which constitute a continuing obstacle to the exercise by the employees of the
rights guaranteed them by, the Act, will recommend that the respondent with-
draw all recognition from the D G. W. U. as the; representative of any of the
respondent's employees for the purpose-of dealing 'with the respondent concern-
ing grievances, labor disputes, wages, rates of pay, hours of employment, and
other conditions of employment,loy ent, and completely to disestablish it as such repre-
sentative. 63 i t I -
Theundersigned, having also found that the respondent entered into an un-
lawful contract with the D. G. W. U. providing for a closed-shop, and in addition,
agreed to the deduction of D G. W. U. dues from the employees'- wages as an
integral part of the respondent's campaign to deny the employees the rights
guaranteed them in the Act, will recommend that the respondent cease and desist
from giving effect to the,contract of May 21, 1937, and to the supplemental wage
agreement of June 22, 1937, or to any extension, renewal, modification or sup-
plement thereof, or any superseding contract or agreement which may now'be in
'force. Nothing- in this recommendation should be taken, however, to require the
respondent,to vary those wages, hours, and other substantive features of its rela-
tions with the employees themselves, if any, which the respondent established in
the performance of'such contracts as extended, renewed, modified, supplemented
and superseded" The undersigned will also recommend that the respondent cease
and desist from giving effect to any checli-off agreement with the D.-G. W. U.
The undersigned is of the opinion that, under the circumstances of this case, the
respondent should be required to reimburse each employee for any amounts,which'
the respondent has deducted from the wages of the employee for dues and assess-
ments in the D G. W. U. The respondent concluded a closed-shop contract with
the D G. W. U, a dominated organization, thus compelling its employees to be-
come and remain members of the illegal organization. The check-off agreement,
a device by which the respondent assured the financial stability of the dominated
organization, could, as practiced, no more be avoided by the employees than could)
the compulsory membership requirement. The undersigned finds that the'monies
thus deducted from the wages of the employees constituted the price of retaining
their jobs, a price coerced from them for respondent's purposeeof supporting and
maintaining the organization which respondent had dominated in ' order to
thwart bona fide representation. The undersigned further finds that, as a result
of the imposition of the illegal closed-shop and check-off requirements, the,
employees suffered a definite loss and deprivation of wages equal to the amounts
Exacted from them for illegal purposes. The undersigned also finds that in these
circumstances, the propriety of a recommendation requiring reimbursement of
dues is particularly applicable, if the unfair labor practices are to lie fully
remedied and the purposes and policies of the Act are to be completely effectuated
by restoration of the status quo. Hence; the undersigned will recommend that
respondent reimburse its former and present employees for the amounts deducted
5from'their wages for dues and assessments in the D. G. W' U.'5
N.. L. R. B v. Pennsylvania Greyhound Lines, 303 U. S. 261 ; N. L. R. B. v. Pacific
Greyhound Lines, Inc., 303 U. S 272.
64 National Licorice Co. v. N. L. R. B., 309 U. S 350, 365-367.'
c5 N. L. R. B. v. Maclcay Radio & Telegraph Co , 304 U. S 333, 348, wherein that court
said : "As we have held in National Labor Relations Board v. Pennsylvania Greyhound
Lines, Inc, No. 413, October term, 1937 the relief which the statute empowers the Board
to grant is to be adapted to the situation which calls for redress."
1
5'
280 DECISIONS''OF NATIONAL LABOR RELATIONS BOARD
The undersigned has found that the respondent has discriminated in regard,
to the hire; and tenure of employment of Sylvia Hull because of•her membership
in and activities on" behalf' of the I. L. G W. U. The .undersigned also found
that Sylvia Hull never communicated, with the respondent after she left the
plant on April 23, and that the respondent made bona-fide but unsuccessful efforts
%
to communicate with her to -offer her reinstatement. Further, that under, all
the circumstances,-the respondent's action was equivalent to an offer of rein-
statement which Hull, by her failure to communicate with the respondent after
instructions to do so, refused to accept. The undersigned will therefore rec-
ommend that the customary, order of reinstatement be withheld, and that the
respondent hot-be required to make'Hull whole for any loss of pay incurred
because of the discrimination against her on April 23, 1937.
The respondent's entire course of conduct, including its-many, and varied
forms of interference , restraint, and coercion, its -domination and support- of
the D. G. W. -U., and' its discriminatory discharge of Sylvia Hull discloses a
fixed purpose on the part of respondent to defeat self-organization and its
objects. .,. Because of the' respondent's unlawful conduct in the past and its
underlying' purpose, the undersigned is,convinced that there is a real danger
of the respondent engaging in other related unfair labor practices proscribed by
the Act in the future • The preventative purpose of the Act will be thwarted
unless - the undersigned's recommendation .is coextensive with the threat. In
order, therefore, to make effective the interdependent guarantees of Section 7 of
the' At, to prevent a recurrence of unfair labor practices, and thereby to' mini-
mize strife which burdens and obstructs, commerce, and thus 'effectuate the
policies. of the Act, the undersigned will recommend that the respondent cease
and desist from in any manner Infringing the 'rights guaranteed in Section 7
of the Act. '
The undersigned. also has found, that the respondent has not discriminated in
(regard to the hire and tenure of employment' of May Fike, and therefore will
recommend that 'the complaint be dismissed as to May Fike.-
,Upon the foregoing findings,of fact and upon the'entire record in the case, the
undersigned makes the following : ,
CONCLusIo s of LAW" ,
1.. International Ladies' Garment Workers' Union, and Donnelly Garment
Workers Union are labor organizations within the meaning of Section 2 (5) of
the Act. - \ v
2. By dominating and interfering, with the formation and administration of
Donnelly .Garment Workers Union and contributing 'support to it,' the respond-
ent has engaged and is engaging in unfair labor practices within the meaning
of Section 8 (2) of the Act. -
3. By discriminating in regard to the hire and tenure and terms and condi-
tions of employment of Sylvia Hull and other employees, thereby encouraging
membership in the Donnelly Garment Workers Union and discouraging member-
sbip'in the International Ladies' Garment Workers' Union, the respondent has
engaged and is engaging hi unfair labor practices within the meaning of Section
S'(3) of theAct.' i
4. 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 laborpractices within the meaning, of' Section 8 (1)
of'the Act'
5. The aforesaid unfair" labor practices are unfair labor practices affecting
,commerce within the meaning of Section 2\ (6) and (7) of the Act. i
DONNELLY GARMENT COMPANY 281
6. The respondent has not discriminated in regard to the hire and tenure of
employment of May Pike , within the meaning of Section 8, (3) of the Act.
The respondent has not violated Section 8 ( 3)' of the Act by refusing to reinstate
Sylvia Hull.
RECOMMENDATIONS1
Upon the1 basis of the foregoing findings of fact and conclusions ' of law, the
undersigned recommends that the respondent , Donnelly 'Garment Company
(Kansas City , Missouri ) and its officers , agents, successors , and assigns , shall:
1. Cease and desist from:,
(a) Dominating or interfering with , the formation and administration of
Donnelly Garinent Workers Union or the formation or administration of any
other l abor organization of `its employees , or from contributing support to the
Donnelly Garment Workers Union or any other labor organization of its
.employees ;
(b) Giving effect to its contract of May 27, 1937,'and supplemental wage agree-
ment of June 22, 1937, or to any extension , renewal, modification ,, or supplement
thereof, or to any superseding contract or agreement ' which may now be in farce
with the Donnelly Garment Workers Union and from giving effect to its check-
off agreement with the Donnelly Garment Workers Union';
(c) Discouraging membership in' International Ladies' Garment Workers'
Union or any other labor organization of its employees , or encouraging member-
ship in Donnelly-Garment Workers Union or, any othei labor organization of its
employees, by laying off any of its employees , or in ' any manner discriminating in
regard to their hire and tenure of employment , 'or any term or condition of
employment ; - - i
(d) Dominating, controlling , and using the Donnelly Loyalty League to inter-
fere -with, restrain , and coerce its employees in the exercise of the rights guar-
anteed in Section 7 of the Act ;
(e)- In any other manner interfering with, restraining , or coercing its em-
ployees in the exercise of the right of self-organization , to form, join , or assist
labor organizations , to bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection , as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the undersigned finds will ef-
= fectuate_the %policies , of the Act:, -
(a) Withdraw all recognition from -Donnelly. Garment Workers Union as the
representative of any of its employees for the purpose of dealing with the respond-
ent concerning grievances, labor disputes , wages, rates of pay, hours of employ-
ment, or other conditions of employment , and completely disestablish Donnelly
Garment Workers as such representative; ,
(b) Reimburse its former and present employees for all dues and assessments,
if any, which it has deducted from their wages oh behalf of the Donnelly Garment
Workers Union ; ^
(c) Post immediately - in conspicuous places on every floor throughout the
respondents Kansas City factory , and maintain for a period of at least sixty
(G0) consecutive days; notices to its employees stating: J (1) that the respondent
will not engage in the conduct from which it is recommended that it cease and
desist in paragraph 1 (a), (b), (c ), ( d), and (e) hereof; (2) that it will take
the affirmative action set forth in paragraph 2 (a), and (b) hereof ; and ( 3) that
the respondent 's employees are free to become or remain members of the Inter-
national Ladies ' Garment Workers ' Union 'and that the respondent will not I in any,
manner discriminate against any employee because of membership or activity in
such organization . _ .^
282 IYECISIONS OF NATIONAL LABOR RELATIONS BOARD
• Notify the Executive Secretary of the Board in writing within ten ( 10) days of
the receipt of this Intermediate Report what steps the respondent has taken
to comply herewith. I '
It is further recommended that the1complaint be dismissed insofar as it-alleges
that the respondent discriminated in regard to the hire and tenure of employment
of May Fike.
It is further recommended that unless on or before ten (10 ) days from, the
date of the receipt of this Intermediate Report, the respondent notifies said
Executive Secretary in writing that it will comply with the foregoing recommen-
dations, the National Labor Relations Board issue ' au order requiring the re-
spondent to take the action aforesaid. ,
As provided in Section 37 of Article II of the Rules and Regulations of the
National Labor Relations Board '-Series 2; as amended , effective October 28,
1942-any party may within fifteen, ( 15) days from the date hereof, pursuant' to
Section 37 of Article II of said Rules and Regulations , file with the Board,
Shoreham Building; Washington , D. C., an original and four copies of a statement
in writing setting forth such exceptions to the Intermediate Repo-it or to any
other part , of the 1record or proceeding ;'( including rulings upon all motions or
objections )' as he relies , upon, together with the original and four, copies of a
brief in support/ thereof . As further provided in said Section 37 , should any party
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10 ) days from the date hereof..,
JAMES C. BATTON,'
Trial Examiner.
Dated November 27, 1942.
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