tion is not conclusively proven by pointing to one act of the organization inimical to the interests of the employer. When the management of the mill had announced a wage reduction, the association had protested to the management with the result that the reduction was not put into effect. In answer to the employer's contention that this incident showed the association to be an organization freely chosen by the employees the Board said:

The fact that the members of a management-controlled association on one occasion assert their own wishes does not remove the stigma of the domination. An organization which is normally entirely under the control of the employer may well get out of hand if a wage reduction is proposed. The association is still dominated by the respondent, and it is that domination which the act declares an unfair labor practice (p. 113).

2

In Matter of Pennsylvania Greyhound Lines, Inc.1 and Matter of Clinton Cotton Mills the employers' conduct was marked by numerous overt acts plainly designed to establish and control the organization of their employees. In Matter of Wheeling Steel Corporation and the Amalgamated Association of Iron, Steel, ond Tin Workers of North America, NRA Lodge No. 155, Goodwill_Lodge No. 157, Rod and Wire Lodge No. 158, Golden Rule Lodge No. 161, Service Lodge No. 163,3 the acts of the employer, while as effective, were not so open nor was their purpose so unconcealed. In 1934 department councils were organized in each of the departments of the Portsmouth plant of the Wheeling Steel Corporation through the steps of petition by employees, acceptance by management, adoption of constitution and bylaws of the councils, establishment of a board of directors of the council to handle grievances. On paper the councils were independent of the employer. But the company had been instrumental in the circulation of the petition, had explained its purpose, had constructed voting booths, had mimeographed the constitution and bylaws after approving them, had permitted elections to be conducted in its offices. Company officials attended meetings of the councils, expressed a preference for the councils, and informed members that they would be given advantages in work and working conditions. After the formation of these councils, the company continued to care for and foster them. It assisted in maintaining a meeting hall, it permitted them the use of the bulletin boards, although denying such use to the lodges of the Amalgamated Association of Iron, Steel, and Tin Workers of North America, the independent labor organization, its foremen brought pressure on the employees to join the councils and attended their meetings, its officials appeared at meetings and praised the councils. It suggested a general council of delegates from the various department councils, and its suggestion was adopted. To this it paid yearly, pursuant to the bylaws of the general council, 50 cents for every employee in the plant eligible to vote, whether he belonged to one of the councils, one of the amalgamated lodges, or no labor organization at all. A monthly sum of $10 was paid to each delegate in the general council. The company also paid for the

11 N. L. R. B. 1. 21 N. L. R. B. 97.

services of an attorney for the general council. From these activities, the Board concluded as follows:

We are convinced that the respondent initiated the formation of the department councils and the general council, and that by means of financial support, by favoritism, and subtle devices of coercion is sustaining the life of those organizations. It is true that in form they are independent and that the employees may on their own initiative espouse and join such organizations. But from the beginning employee initiative with respect to the organization and perpetuation of the councils—even assuming any existed—has been determined by fear of the respondent. The power of an employer over the economic life of an employee is felt intensely and directly; and in the case of a company, which, like the Wheeling Steel Corporation, has a great number of plants-some idle, some running below capacity-this power is enormously increased. The employee is sensitive to each subtle expression of hostility upon the part of one whose good will is so vital to him, whose power is so unlimited, whose action is so beyond appeal. Prior to the organization of the councils, the respondent had emphatically declared its antagonism to the Amalgamated. Subsequently, it had let it be understood that the continued operation of the plant depended upon the inauguration of acceptable labor organizations, which it itself started and in considerable measure supported by money and by favoritism. As a result, the councils in the minds of the employees are indissolubly linked with the respondent's will and desire (pp. 709-10).

As a consequence of its domination and interference and its contribution of financial and other support, the respondent was ordered to withdraw recognition from the councils as organizations for the purpose of collective bargaining upon behalf of its employees.1

In all of the cases above considered the employer had directly taken an active part in the formation and control of the labor organization. But the Board has recognized that an employer may, by suggestion and indirection, lead others to bring into being an organization which is subservient, or even favorable, to his wishes, and that such conduct on the part of an employer is likewise prohibited by section 8, subdivision (2). Such a situation was considered in Matter of Ansin Shoe Manufacturing Company and Shoe Workers' Protective Union, Local No. 80.2 After a series of forceful requests by a local of the Shoe Workers' Protective Union, an independent union in existence at the plant, the company announced that it was going to move its factory from the town of Athol. Immediately a citizens' committee of prominent citizens in that town was formed with a Reverend Barker as chairman. This committee held various meetings of employees and succeeded in forming the "Progressive Shoe Workers' Union", restricted to employees in the plant. The company at once entered into a "union shop" agreement with this organization. The legality of the entire proceeding was considered by the Board in the following portion of the decision:

The charge against respondent is that it dominated and interfered with the formation and dominates and interferes with the administration of the progressive union and contributes financial and other support to it. Sidney Ansin (treasurer and general manager of the respondent), testifying at the hearing,

1 In Matter of Oregon Worsted Company, a Corporation, and United Textile Workers of America, Local 2435, 1 N. L. R. B. 915, the Board was concerned with a case in which the employer, after openly forming a labor organization among his employees and recognizing it as representative of the employees in an "agreement" with it, had after July 5, 1936, been able to sustain its existence by means of extending to it special favors explicitly denied to an independent union in existence at the plant and by discriminatory conduct, including discharge, toward members of that union. Such favors consisted of use of company bulletin boards, permission to collect, dues and discuss organization matters during working hours, etc. The employer was ordered to withdraw recognition from the organization he had established.

21 N. L. R. B. 929.

sought consistently to give the impression that respondent was purely passive in all the events described above; it did not call the meetings, write the by-laws, or propose the form of the new organization. It did not, in other words, actively take a part in initiating or forming the specific organization here attacked.

We do not so narrowly interpret section 8, subdivision (2), of the act, as to require this direct and immediate link between the employer and the outlawed organization. This section does not stand alone; its meaning is derived not solely from its words but from related sections and from the purposes of the act. This section makes specific one of the ways in which an employer can interfere with the broad right of the employees under section 7 to bargain collectively through representatives of "their own choosing", and is to be construed so as to further the intention of section 7. Its object is to protect the rights of employees from being hamstrung by an organization which has grown up in response to the will and the purposes of the employer, an organization which would not be, in the sense of section 7, an organization of the employees' choice. The workers may be aware of their employer's antipathy to union organization and seek to propitiate him by acceptable conduct. This may be unavoidable. But the employer can be prevented from engaging in overt activity calculated to produce that result. If labor organizations are to be truly representative of the employees' interest, as was the intention of Congress as embodied in this act, the words "dominate and interfere with the formation of any labor organization" must be broadly interpreted to cover any conduct upon the part of an employer which is intended to bring into being, even indirectly, some organization which he considers favorable to his interests.

Of such conduct by respondent the record is full. When the president of the international announced, as Sidney Ansin says, that the union would seek a closed shop, respondent countered with a threat to leave town. It is quite possible that Ansin did not arrange the intervention of the citizens' committee; that may have been quite unnecessary. Ansin had laid down an ultimatum: if we are to stay here, see to it that our labor relations are satisfactory. Thus advised of their danger, the employees and even more the business interests of the community, whose primary interest was to keep the factories in town on any terms, might well be expected to seek an acceptable solution. But Ansin's intervention did not stop at this point. He participated in the meetings between the committee and his employees; meetings which were in essence labor organization meetings. His alleged role at these meetings was that merely of negotiator of the labor contract. This position is disingenuous. Though Ansin may have made very few suggestions as to the form which the organization was to take, his positive insistence that the business agent of the new crganization be a resident of Athol revealed his demand that the new organization must not be a national organization; and the committee's statement to McAdams that Carey, the outside organizer, must not be on the union delegation showed at the very least that the committee comprehended. Ansin's views and that the whole problem of these meetings was to find a labor organization acceptable to Ansin. Ansin's vague offer of $1,000 for hospitalization, which in the speech of the Reverend Barker to the mass meeting became an offer of funds to the new union-an offer which up to the time of the hearing had never been fulfilled in any form-was both a further pressure, and an attempt to give all of this pressure a benevolent aspect.

The "lay-off" of McAdams and Ferris (two employees and members of the independent union) after they had thwarted the organization of the combined Ansin-Anwelt workers was a pointed reminder of what the employees were expected to do. Thereupon 75 out of 500 Ansin workers formed, under the Reverend Barker's auspices, the new union. With this newly formed organization, Ansin signed an agreement embodying the "union shop", an arrangement almost as drastic as the "closed shop", the suggestion of which by Nolan (president of the Shoe Workers' Protective Union) had caused Ansin to announce that the companies would leave Athol.

Thus has Ansin's original ultimatum borne fruit. Cautiously and discreetly reinforced from time to time by a suggestion, a show of power easily understood-yet combined always with the forms of aloofness and disinterestednessit has brought forth a union restricted in membership to respondent's employees, and by the "union shop" clause, has ousted the old union and its membership from the plant. This outcome does not flow from that free choice which our

voked and a sufficient suggestion as to how the displeasure might be appeased. We find that respondent has dominated and interfered with the formation of the Progressive Shoe Workers' Union (pp. 935–7).1

An employer's activities designed to form a "labor organization" are within the ban of section 8, subdivision (2) even though he is unsuccessful and no "labor organization" is in fact formed. In Matter of Canvas Glove Manufacturing Works, Inc., and International Glove Makers Union, Local No. 88,2 the employer had urged the employees "to sign up in what was called a company union" promising them reduced dues, parties, sick benefits, and increased work rates. The employer desired in this fashion to combat an independent union in existence at the plant. However, these activities were unavailing and no labor organization was brought into being. Characterizing the evidence as showing that "the respondent did make a determined effort to initiate a labor organization and to dominate and interfere with its formation", the Board held:

In our opinion, section 8, subdivision (2) of the act forbids domination or interference not only where it is successful, and a labor organization is actually formed, but also makes it an unfair labor practice where the domination or interference is unsuccessful. In this case, the respondent was unsuccessful because of the firmness of its employees. Since the act is remedial, it is appropriate to require the respondent to cease and desist from unfair labor practices which may, at some future time, be more successful.

We find that the respondent dominated and interfered with the formation of a labor organization * (pp. 526-7).

In two cases under this section the Board has held that the evidence was insufficient to warrant the Board in finding a violation. In the first, Matter of Mackay Radio & Telegraph Company, a corporation, and American Radio Telegraphists' Association, San Francisco Local, No. 3, while no labor organization was in fact formed, several employees had attempted to establish a "relations committee" to represent the employees instead of the independent union already in existence. After a review of the evidence from which the Board concluded that the record might not contain a complete account of

1 See also the companion case, Matter of Anwelt Shoe Manufacturing Company and Shoe Workers' Protective Union, Local No. 80, 1 N. L. R. B. 939.

Matter of Atlas Bag & Burlap Company, Inc., and Milton Rosenberg, organizer, Burlap and Cotton Bag Workers Local Union No. 2469, affiliated with United Textile Workers Union, 1 N. L. R. B. 292, presented a similar, though cruder form of employer participation in the formation of an organization of employees. In that case the employer secured from the industrial secretary of a Chamber of Commerce "forms" for the establishment and organization of a "shop union" which it then turned over to one of its employees. This employee, with several others, formed a "shop union" in accordance with these forms and with the aid and encouragement of some of the foremen. The employer then "recognized" the "shop union" and its "collective bargaining committee." In finding that the employer had dominated and interfered with the formation and administration of a labor organization, the Board said:

"The right of employees to be free from such domination and interference, guaranteed to them by the National Labor Relations Act, and the correlative duty imposed upon the employer not to dominate or interfere, cannot be evaded by the obvious and transparent subterfuge of ready-made 'shop union' plans furnished to employers by the industrial secretary of a chamber of commerce, an association of employers. The evidence clearly establishes the fact that the respondent participated not only in securing the 'shop union' plan from Balleisen (the industrial secretary), but also took an active part in 'putting it over'. The respondent's officers and foreinan solicited signatures to the letter dated October 23 (announcing the organization of the shop union'), furnished the services of its stenographer, and the use of its office, participated or were present at the election' on October 25 (of officers of the 'shop union'). The parts played by M. Mienone (the employee mentioned above) and his associates in perfecting the 'shop union' and the collective bargaining committee' were obviously directed by the respondent in accordance with the scenario furnished by Balleisen" (pp. 302-3). 21 N. L. R. B. 519.

See also Matter of Mackay Radio Telegraph Company, a Corporation, and American Radio Telegraphists' Association, San Francisco Local No. 3, 1 N. L. R. B. 201, in which the Board said that "an abortive attempt by an employer to form a labor organization is an unfair labor practice within the meaning of that section (sec. 8, subdivision (2))" (p. 231).

41 N. L. R. B. 201.

the motives of these employees, the Board dismissed the complaint insofar as it concerned a charge under this section, since the evidence in the record did not show that the employer had been involved in the activities of these employees. In the second case, Matter of Atlanta Woolen Mills and Local No. 2307, United Textile Workers of America, after reviewing evidence to the effect that the employer had encouraged membership in a "Good Will Club" formed early in 1935, through such devices as use of bulletin boards for a notice by the club declaring a closed shop and solicitation by foremen, the Board held that the evidence was not sufficient to warrant a finding that the employer dominated or interfered with its administration, although such acts were deemed a violation of section 8, subdivision (1). However, on a petition for rehearing by the local of the United Textile Workers in existence at the plant, the Board indicated that in the future on a similar state of facts it might reach a different conclusion with respect to section 8, subdivision (2)." In addition, on the basis of the violation of subdivision (1), the Board ordered that the employer withdraw all recognition from the Good Will Club as representative of its employees since the acts of the employer had enabled it to achieve its large membership.

In all of the cases considered by the Board under this section, an independent union was in existence at the time the organization claimed to be formed or controlled by the employer was established or functioning. A comparison of the employer's attitude in these cases toward the two organizations and their members is revealing. Members of the independent union are discharged or laid off in a discriminatory fashion," "agreements" are readily signed with the employer-controlled organization, whereas all efforts of the independent union to bargain collectively are frustrated, privileges, such as the check-off,5 use of company bulletin boards, solicitation of employees on company time and property," are accorded to the employer-controlled organization and denied to the independent union. In a realistic world the presence of such differences in treatment serves only to emphasize the employer's control. In addition, these differences indicate that the primary, if not sole purpose of the employer-controlled organization is to weaken and eventually destroy the independent union.

SECTION E. INVESTIGATION AND CERTIFICATION OF REPRESENTATIVES

Section 9 (c) of the act provides that—

Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate such controversy and certify to the

11 N. L. R. B. 316.

2 Matter of Atlanta Woolen Mills, 1 N. L. R. B. 316.

Matter of Pennsylvania Greyhound Lines, Inc., 1 N. L. R. B. 1; Matter of Clinton Cotton Mills, 1 N. L. R. B. 97; Matter of Oregon Worsted Company, 1 N. L. R. B. 915; Matter of Canvas Glove Manufacturing Works, Inc., 1 N. L. R. B. 519; Matter of Ansin Shoe Manufacturing Company, 1 N. L. R. B. 929; Matter of Wheeling Steel Corporation, 1 N. L. R. B. 699; cf. Matter of Atlanta Woolen Mills, 1 N. L. R. B. 316.

Matter of Atlas Bag & Burlap Company, Inc., 1 N. L. R. B. 292; Matter of Clinton Cotton Mills, 1 N. L. R. B. 971; Matter of Oregon Worsted Company, 1 N. L. R. B. 915; cf. Matter of Ansin Shoe Manufacturing Company, 1 N. L. R. B. 929.

5 Matter of Clinton Cotton Mills, 1 N. L. R. B. 97.

Matter of Oregon Worsted Co., 1 N. L. R. B. 915; Matter of Wheeling Steel Corporation, 1 N. L. R. B. 699; cf. Matter of Atlanta Woolen Mills, 1 N. L. R. B. 316.

Matter of Clinton Cotton Mills, 1 N. L. R. B. 91; Matter of Oregon Worsted Com