Holland Manufacturing Co.

National Labor Relations Board - Board DecisionsMay 27, 1940

23 N.L.R.B. 1215 (N.L.R.B. 1940)

In the Matter of HOLLAND MANUFACTURING COMPANY and TExTILE WORKERS UNION OF AMERICA , AFFILIATED WITH THE C. I. O. Case No . C-1178.-Decided May 27,1940 Textile Industry-Interference, Restra4nt, and Coercion: charges of, dismissed-Company-Dominated Union: charges of, dismissed-Collective Bar- gaining: charges of, dismissed, lack of majority in unit alleged in complaint to to be appropriate-Discrimination: charges of, dismissed as to one discharged employee, sustained as to four employees indefinitely laid off-Regular and Sub- stantially Equivalent Employment: factors considered-Reinstatement Ordered- Back Pay: awarded, from date of discrimination to date of offer of reinstate- ment ; monies received by employees for work performed upon Federal, State, county, municipal, or other work-relief projects to be deducted and paid over to agency supplying funds for projects. Mr. Joseph F. Castiello, for the Board. Bertolet & Bertolet, of Reading, Pa., and Mr. Greenwald Gearhart, of Stroudsburg, Pa., for the respondent. Mr. Alfred Udo f f , of New York City, for the T. W. U. A. Mr. C. D. Shull, of Stroudsburg, Pa., for the Alliance. Mr. Harry A. Sellery, Jr., of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Textile Workers Organizing Committee,' herein called the T. W. O. C., the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued its complaint dated September 24, 1938, against Holland Manufactur- ing Company, Stroudsburg, Pennsylvania, herein called the respond- ent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the 3 Pursuant to a motion filed by Textile Workers Union of America , and without objection by any of the parties, the Board on January 31, 1940, issued its order substituting the name "Textile Workers Union of America" for the name "Textile Workers Organizing Com- mittee" wherever it might appear in this proceeding 23 N. L. R. B., No. 128. 1215 1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and the T. W. O. C. In respect to the unfair labor practices, the complaint, as amended 'during the course of the hearing, alleged in substance: (1) that the respondent dominated and interfered with the formation and administration of Holland Workers Alliance, herein called the Alliance, an unaffiliated labor organization; (2) that the respondent discriminatorily terminated the employment of Melvin Cramer, Cyrus Miller, Anita Transue, Cathleen Van Why, and Jack Vinyard because of their union membership and activity; (3) that on or about February 9, and on and after February 22, 1938, the respondent re- fused to bargain collectively with the T. W. O. C., although it repre- sented a majority of the respondent's employees in an appropriate unit; and (4) that by the foregoing and by other acts the respondent interfered with, restrained, and" coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On September 30, 1938, the respondent filed an answer which, as amended during the course of the hearing, admitted that the re- spondent is engaged in interstate commerce and denied the allegations of the complaint in respect to the unfair labor practices. The answer affirmatively alleged that Van Why was discharged for lawful rea- sons. On October 7, 1938, the respondent filed with the Regional Director an application for subpoenas for 72 persons ,allegedly essen- tial as witnesses for the respondent's defense. On October 8, 1938, the Regional Director denied such application. Pursuant to the notice and a notice of postponement of hearing, a hearing was held in Stroudsburg, Pennsylvania, from October 13 through 19, 1938, before Thomas H. Kennedy, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. At the opening of the hearing, the Alliance, appearing by counsel, moved to intervene in the proceeding. The Trial Examiner denied the motion. Subsequently the Alliance filed an amended motion to in- tervene, alleging in substance : (1) that the Alliance was not a coin- pany-dominated labor organization; (2) that the Alliance repre- sented a majority of the respondent's production and maintenance employees; and (3) that in April 1938 the Alliance entered into a contract with the respondent. The Trial Examiner granted the Alliance's amended motion to intervene, but limited its participa- tion in the proceeding to the allegation of the complaint that it is .company dominated. Thereafter the Alliance was represented by counsel and participated in the hearing in accordance with the Trial Examiner's ruling regarding the terms of intervention. Full oppor- HOLLAND MANUFACTURING COMPANY 1217 tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing the respondent renewed its applica- tion for subpoenas. The Trial Examiner denied the application. At the close of the hearing, the respondent made several motions to dis- miss the complaint for insufficient proof. The Trial Examiner re- served his rulings on such motions. The Trial Examiner made sev- eral rulings on other motions and on 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. On January 30, 1939, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties. He- found that the respondent had engaged in and was engaging in un- fair labor practices, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from interfering with, restraining, and, coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, that it reinstate Cramer, Miller, and Vinyard with back pay, that it award back pay to Transue, that its motions, upon which he had reserved his rulings at the hearing, be granted and accordingly that the complaint be dismissed as to Van Why and in so far as it alleged that the respondent had engaged in unfair labor practices within the meaning of Section 8 (2) and (5) of the Act. Exceptions to the Intermediate Report were filed by the T. W. O. C. on February 11, 1939, and by the respondent on February 13, 1939. On June 7, 1939, the T. W. O. C. filed a brief in support of its excep- tions. On June 9, 1939, the respondent filed additional exceptions. Pursuant to notice, a hearing for the purpose of oral argument on, the exceptions was held before the Board in Washington, D. C., on January 16, 1940. Only the respondent was represented by counsel and participated in the argument. During the course of the oral argument counsel for the respondent filed a supplementary brief with the Board. The Board has considered the briefs and the exceptions, to the Intermediate Report and, in so far as the exceptions are incon- sistent with the findings and Order herein, finds them without merit. Upon the entire record in the case, the Board makes the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Holland Manufacturing Company, a New Jersey corporation, main- tains its principal office and place of business, in New York City. It' operates a factory at Stroudsburg, Pennsylvania, which is the plant 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD involved in this proceeding, where it manufactures silk thread. About 95 per cent of the raw materials purchased by the respondent for use in its manufacturing processes are shipped from points out- side Pennsylvania. About 95 per cent of the finished thread is shipped to points outside Pennsylvania. In 1937 the respondent pro- duced about 80,000 pounds of silk thread with a value of approxi- mately $400,000. The respondent admits that it is engaged in interstate commerce. II. THE ORGANIZATIONS INVOLVED Textile Workers Union of America , herein called the T. W. U. A., formerly known as Textile Workers Organizing Committee, is a labor organization affiliated with the Committee for Industrial Organiza- tion,2 herein called the C . I. 0.3 Local 35 of the T. W. U. A. admits to membership textile workers employed in and about Easton, Penn- sylvania , including the respondent 's production and maintenance employees , but excluding executives , supervisory employees , clerical workers, foremen , and watchmen. Holland Workers' Alliance, an unincorporated association, is an unaffiliated labor organization , admitting to membership the respond- ent's employees , including clerical employees , but excluding the re- spondent 's officers and supervisory employees with the right to hire and discharge. III. THE UNFAIR LABOR PRACTICES A. Alleged interference, restraint, and coercion About March 1937 a group of the respondent's employees decided to organize, and secured the assistance of Steel Workers Organizing Committee, herein called the S. W. O. C., a C. I. 0. affiliate. Subsequently the respondent and the T. W. 0. C. entered into a 10-month contract dated April 19, 1937. The contract provided in substance for : (1) recognition by the respondent of the T. W. O. C. as the collective bargaining representative of its members; (2) a 15- per cent wage increase for hourly paid employees; (3) some seniority provisions; (4) a grievance procedure; (5) minimum hours of work and rates of pay; (6) overtime pay; and (7) negotiations for a new contract to begin on February 7, 1938. In May or June 1937 Howard Yetter resigned as chairman of the local group and was succeeded by Melvin Cramer. During a period extending from July to September 1937 dissension arose among the 2 Now the Congress of Industrial Organizations. 8 Except where a fuller explanation is necessary, the terms C. I. O. and T. W. O. C. are herein used interchangeably. When used herein, the local group refers to the informal organization of Local 35 of the T. W. O. C. in the respondent's plant. HOLLAND MANUFACTURING COMPANY 1219 membership of the local group. By September many of them had ceased to pay dues and the membership declined. There is some testimony that prior to the execution of the contract of April 19, 1937, at a meeting called by the T. W. O. C. at which Edward L. Kenney, the respondent's secretary and plant superin- tendent, had been invited to speak, he suggested that the employees might secure wage increases without resort to union organization. There is also testimony that prior to negotiating with the T. W. O. C. Kenney sought to satisfy himself with respect to the status of T. W. O. C. as the representative of the respondent's employees, by informally inquiring of various employees whether they desired such representation. On the basis of the entire record, particularly in view of the respondent's subsequent negotiation of the contract with the T. W. O. C., we agree with the Trial Examiner that the evidence is insufficient to establish that the respondent, by Kenney's activities, interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed by the Act. B. The Alliance About February 9, 1938, Kenney received by mail from George Heller, business agent of the T. W. O. C., a copy of a proposed contract to be effective upon the expiration of the existing contract. Subsequently a conference between the respondent and the T. W. O. C. was arranged for 10 a. m. on February 22, 1938. On February 18, 1938, a group of about 21 employees met at the home of Helen Serfass, an employee, to discuss the formation of an unaffiliated labor organization. Several of the persons present had formerly been members of the T. W. O. C. At this meeting Russell Waltz, an employee, was selected to consult an attorney and to secure advice regarding the formation of such an organization. Waltz selected C. D. Shull, a local attorney, because of reports that Shull had been counsel to a group of nearby hosiery workers who had formed an unaffiliated union. Waltz interviewed Shull on the morning of February 19, 1938, but the latter declined to act as an adviser to the respondent's em- ployees with Waltz as their sole representative. He asked Waltz to return with a committee consisting of employees from several depart- ments of the respondent. Waltz returned that afternoon with such a committee. Shull and the committee thereupon spent several hours drafting bylaws and an application card for the Alliance. Waltz explained to Shull that the Alliance could not then pay him for his services, but would do so when there were sufficient funds in the Alliance's treasury; and that otherwise Waltz would personally reim- burse Shull. Shull agreed to act as the Alliance's attorney in accordance with this proposal. 1220 DECISIONS ' -OF NATIONAL LABOR RELATIONS BOARD Shull suggested Donald Giarsch, a local printer and mimeographer, as a person who could quickly make copies of the bylaws and the application cards for the organizing committee of the Alliance. On Waltz's order Giarsch mimeographed about 150 copies each of the Alliance's bylaws and application cards by the morning of February 21, 1938.4 Waltz personally paid Giarsch $25 for the mimeograph- ing and was subsequently reimbursed by the Alliance. Early on the, morning of February 21, 1938, Waltz secured the application cards from Giarsch and distributed them to the organizing com- mittee. He instructed the committee members not to solicit member- ships on company time and property. 'That day, off company time and property and before work began and after it ended, various committee members solicited the respond- ent's employees to join the Alliance. Many employees signed the application cards, which read as follows : I' have read the By-Laws of the Holland Workers' Alliance, and assent fully thereto. - I hereby apply for membership in said Association, renouncing membership or allegiance to any similar or hostile organization. As the employees were solicited by the organizing committee, they were notified that there would be a meeting of the Alliance that eve- ning in the Borough Hall of Stroudsburg. There is evidence that Anna Romig solicited a few employees to join the Alliance. She is classified by the respondent as an assistant to Assistant Forelady Dietrich, but her duties are primarily those of a helper. She is without the power to hire, lay off, or discharge em- ployees, or to recommend such action. Like the regular production and maintenance employees she is paid an hourly wage. Moreover, she had been a member of the T. W. O. C. and had participated in the 15-per cent wage increase secured by the T. W. O. C. in April 1937. When the employees who had signed the Alliance cards met at the Borough Hall on the evening of February 21, 1938, 66 such cards had been secured. While the meeting was in progress, a group of about 15 or 20 employees who were members of the T. W. O. C. entered the hall. Waltz, who was presiding at the meeting, invited them to join the Alliance, but they declined to do so. Thereupon they were in- structed to sit at the side of the hall, but not to take any part in the meeting: • At the meeting the Alliance members voted to demand that the respondent recognize the Alliance. Immediately after the meet- ing, the Alliance executive committee selected Waltz, president, Gladys Bensel, secretary, and Ruth Smith, a departmental representative, as a -committee to present the Alliance demand to Kenney the next morning. s February 20, 1938, was a Sunday. I HOLLAND MANUFACTURING COMPANY 1221 At 9 a. m. on February 22, 1938, these three Alliance representatives, came to Kenney's office. They stated to Kenney that the Alliance had secured 66 signed application cards from the respondent 's employees, that 66 employees constituted a majority of the respondent 's produc- tion and maintenance employees , and that the Alliance demanded recognition as the bargaining representative of all such employees. The committee presented the 66 signed cards and a typewritten list of the signers to Kenney and permitted him to inspect the cards and the list. Kenney stated that he knew that some of the signers had been T. W. 0. C. members and that he was uncertain whether their sig- natures on the Alliance cards were effective as a designation of the Alliance as their collective bargaining representative until they had formally withdrawn from the T. W. 0. C. The committee replied, that the statement on the card, "renouncing membership or al- legiance to any similar or hostile organization ," constituted a suf- ficient revocation of any former T. W. 0. C. membership , that the T. W. 0. C. bylaws provided that any member who was 4 months in arrears in the payment of dues ceased to be a member , and that all of the signers of the Alliance cards were more than 4 months in arrears in the payment of their T . W. 0. C. dues. Kenney con- cluded the conference , which lasted about a half hour, by stating that he had an appointment at 10 a. m. with a T. W. 0 . C. com- mittee and that the respondent could take no action in regard to the Alliance demand for recognition until after that conference. At 10 a. in., a T. W. 0. C. committee, consisting of George Heller, business agent of Local 35, and a group of employees , met with Kenney. This committee informed Kenney that it had come to negotiate a new contract to be effective upon the expiration on Feb- ruary 28, 1938 , of the existing contract . Kenney told the T. W. 0. C. committee that he had just met with an Alliance committee, that the Alliance claimed to represent a majority of the respondent's pro- duction and maintenance employees , and that the respondent under- stood that it was required, under the terms of the Act, to recognize as the collective bargaining representative the labor organization representing such majority . Heller claimed that the T. W. 0. C. had about 90 signed cards authorizing it to represent the respond- ent's employees as their collective bargaining representative, and that it therefore represented a majority of such employees. He did not offer, however , to produce the cards. Kenney suggested that an election be held among the employees to determine which organization , if either , was their collective bar- gaining representative . Heller declined Kenney's suggestion. There was some further discussion between Kenney and the committee, 283034-41-vol 23-78 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but no proposals were agreed to. Kenney ended the conference with a statement that the respondent could not negotiate with the T. W. O. C. until the respondent knew which labor organization, if either, represented a majority of the employees. On February 28, 1938, there was another conference between the respondent and the T. W. O. C., but like the first it did not result in any agreement between the parties. Later the respondent noti- fied the T. W. O. C. that upon advice of counsel it would not nego- tiate with the T. W. O. C. until its majority had been established. The T. W. O. C. did not attempt to establish that it represented a majority. Subsequently there were several conferences in March and April 1938 between the respondent and the Alliance. On April 7, 1938, as a result of these conferences the respondent and the Alliance entered into a 1-year contract which granted the Alliance recognition as the exclusive bargaining representative of the production and maintenance employees. The contract did not provide for any changes in the existing wage scale, but provided that the parties would negotiate further and incorporate any wage scale agreed to as a part of the contract. We agree with the Trial Examiner, and on the basis of all the evidence we find that the record does not sustain the allegations of the complaint that the respondent dominated and interfered with the formation or administration of the Alliance or contributed support to it. C. The alleged refusal to bargain The complaint alleges that on or about February 9, 1938,6 February 22, 1938, and at all times thereafter the respondent refused to bargain collectively with T. W. O. C. although the T. W. O. C. repre- sented a majority of the employees in the appropriate unit. On Feb- ruary 22, 1938, both the Alliance and the T. W. O. C. claimed to represent a majority of such employees. The complaint alleges that the production and maintenance employees, excluding supervisors, clerical workers, firemen, engineers, and watchmen, constitute a unit appropriate for the purposes of collective bargaining. The Alliance contends that clerical employees should be included within the appro- priate unit. It is unnecessary for us to make a determination with respect to the appropriate unit. For the purposes of determining the representation of the T. W. O. C., we shall consider as appropriate 6 On February 9, 1938, T. W. O. C. submitted a contract to the respondent for its con- sideration. Since the T. W. O. C. did not expect the respondent to negotiate regarding the contract until a later date, the allegation of the complaint that the respondent refused to bargain on February 9, 1938, finds no support in the record. I HOLLAND MANUFACTURING COMPANY 1223 the unit alleged in the complaint, since the T. W. O. C. did not claim to represent any of the clerical employees. On February 22, 1938, there were 101 employees in the unit alleged in the complaint to be appropriate. The Trial Examiner admitted in evidence 48 cards signed on or before April 15, 1937, by employees in the alleged appropriate unit and designating the T. W. O. C. as their bargaining representative. In addition there is evidence that Anna Romig, Ralph Weber, and Howard Yetter, who had not signed such cards, were T. W. O. C. members on or before April 19, 1937. The Trial Examiner refused to admit in evidence 21 cards offered by the T. W. O. C. which desig- nated the S. W. O. C. as the bargaining representative of the signers.,, In support of its claim of majority representation on and after February 22, 1938, the Alliance offered in evidence cards authorizing it to represent the signers. The Trial Examiner, however, admitted in evidence only the cards of those employees who had previously signed T. W. O. C. authorization cards.7 Considering the proof and offers of proof most favorable to the T. W. O. C., there was evidence that on February 22, 1938, the T. W. O. C. represented a total of 72 employees in the alleged appro- priate unit. Of these 72 employees, however, 23 had signed cards authorizing the Alliance to represent them. If we subtract from this total of 72 T. W. O. C. cards only the 23 Alliance cards signed by the employees who had previously signed the T. W. O. C. cards and who on February 22, 1938, had designated the Alliance as their collective bargaining representative, it is clear that on February 22, 1938, the T. W. O. C. at most had not more than 49 authorizations, or less than a majority of the employees either in the alleged appropriate unit or the unit claimed by the Alliance to be appropriate. Accordingly, the evidence affords insufficient basis for finding that on or after February 22, 1938, the T. W. O. C. represented a majority of the respondent's employees in an appropriate unit. We find, there- fore, that the record does not sustain the allegation of the complaint that on February 9, 1938, February 22, 1938, and at all times there- after, the respondent refused to bargain collectively with the repre- sentatives of its employees pursuant to Section 9 (a) of the Act. 6 As described above, the organization of the respondent 's employees was inaugurated by the S. W. O. C. There was evidence that the employees solicited by the S. W 0. C. were thereafter transferred to membership in the T. W O. C. We are of the opinion that the Trial Examiner erred in sustaining the objection of counsel for the respondent and refusing to admit in evidence the S. W. O. C. cards. As noted above, however, the ruling did not constitute prejudicial error. I The Trial Examiner ruled , in excluding a substantial number of Alliance cards, that the issue was the status of the T. W. O. C. as the collective bargaining representative and not the status of the Alliance as such. 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The discharge of Cathleen Van Why Cathleen Van Why was hired by the respondent in 1933 as a reeler at $9 per week. She joined the T. W. O. C. in March 1937, when the respondent's plant was being organized, and directed the organizing campaign of the C. I. O. She was secretary and treasurer of the local group, and a member and sometime acting chairman of the grievance committee of the local group. Personal hostility arose between Van Why and Lorenzo Lavigne, the foreman of the reelers, about Christmas 1937, when a group of employees, including Van Why, offered him a gift which he refused to accept. Thereafter Lavigne and Van Why ceased to speak to each other except on official business. On March 14, 1938, shortly after the lunch hour, Lavigne told Caro- lyn Vinyard, a reeler, that Bert Rail, the machine-shop foreman, had told him that the occupants of a building adjacent to the reelers" room had stated that they had seen the reelers reading in the plant during working hours, and that Vinyard should stop reading her newspaper. It appears that Vinyard was accustomed to bring a news- paper into the plant at the end of the noon hour. After Lavigne's reprimand, Vinyard told Van Why, who worked about 10 feet from her, what Lavigne had said. According to Van Why and Vinyard, the former stated that she did not believe that the occupants of the adjacent building should be concerned about the re- spondent's employees. Lavigne, on the other hand, claimed that be- fore he left the reelers' room and while he was about 10 feet from the two women, he heard Van Why refer to him in vulgar terms and call him "a God-damned liar." He thereupon reported Van Why's alleged remark to Kenney and told him that Nellie Dayton, a reeler, had overheard Van Why. Kenney interrogated Dayton regarding the incident, concluded that Van Why had made the remark, and authorized Lavigne to notify Van Why that she was discharged. About 4:20 p. in. Lavigne returned to the reelers' room and said to Van Why, "You are through." She refused, however, to accept her pay check from Lavigne until he explained the reason for her discharge. Lavigne then referred to the alleged vulgar remark that she had directed toward him. Van Why denied that she had made any such remark and Vinyard corroborated her. Lavigne countered with the statement that he could prove that Van Why had done so. He refused to grant Vinyard permission to go to Kenney's office to explain that Van Why had not made the remark attributed to her by Lavigne. When work ended at 5 p. in., Van Why and Vinyard interviewed Kenney regarding Van Why's discharge. Kenney told Van Why that she was discharged because of her remark to Lavigne. Van HOLLAND MANUFACTURING COMPANY 1225 Why denied that she had made such a remark, saying, "Mr. Kenney, if I had felt like saying it I would have said it, but that is once when I didn't say it." In Kenney's presence, Vinyard again corroborated Van Why's denial that she had made any such remark to Lavigne. From the cross-examination of Kenney at the hearing concerning his reasons for believing that Van Why had made the remark, it appears that Dayton was not certain that she had heard Van Why, although Dayton believed that Van Why had made a remark which "sounded like that." But Kenney on previous occasions had over- heard Van Why cursing in the plant. Moreover, Lavigne had pre- viously complained to Kenney regarding Van Why's cursing and vulgar language. Kenney's reason for not disciplining her previ- ously for the use of such language was that such remarks had been directed to her fellow employees and not to her supervisors. As the ground for the discharge of an employee, Kenney distinguished be- tween such language when addressed to a fellow employee and when directed to a supervisory employee. It is true that Van Why's union activity was known to the respond- ent. Kenney's investigation on March 14, 1938, might have satis- fied him that Van Why had not made the remark attributed to her. Against the possibility of this conclusion, however, were Lavigne's prior complaints against Van Why in this respect, Kenney's own ob- servation of Van Why's language, and Van Why's above-quoted ad- mission to Kenney that she would not hesitate to use the language in question. Kenney had no knowledge of the personal hostility be- tween her and Lavigne. In addition, such hostility had no connec- tion with Van Why's union activity. From all the evidence we find that the respondent was not unreasonable in concluding that she had made the remark attributed to her by Lavigne and was not motivated by a desire to discharge her for her union activity. We find that the record does not support the allegations of the complaint that Cathleen Van Why was discriminatorily discharged on March 14, 1938. E. The discriminatory lay-offs The complaint alleges that the respondent discriminatorily laid off Cyrus Miller on March 11, 1938, Jack Vinyard on March 23, 1938; Melvin Cramer on March 31, 1938, and Anita Transue on April 27, 1938. The respondent's defense is that these four employees were laid -off because of adverse business conditions and that no new employees were hired in their places. At the hearing counsel for the Board conceded that business conditions may have required a reduction in force, but contended that the manner in which the respondent reduced its force was discriminatory. 1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miller, Vinyard, and Cramer were employed as spinners under the supervision of Lavigne and Robert Fairclough, an assistant foreman. Lavigne's attitude toward the T. W. O. C. and its members is indicated by statements which he made in September 1937 and in January, February, and March 1938. About September 17, 1937, Norman Swink, a^ stretcher and a T. W. O. C. member, was discharged by the respondent, allegedly for violation of a company rule. On the day that Swink was discharged, Lavigne said to Jack Vinyard, "Well, you ought to have a vacation. You are going to get one pretty damn soon, I am going to fire and lay off who I God damn please, I will see how strong the C. I. O. is. The big boss will back me up." In January 1938 Van Why overheard Lavigne say to Fairclough that he was "getting damn sick of the way the C. I. O. was running things" in the plant. In March 1938 she overheard him state to Fair- clough, "the union had run things long enough in'there (in the plant) and he (Lavigne) was boss now and he was going to run things to suit hisself." In February 1938 Charles Franks, a bundler, overheard Lavigne and Fairclough conversing in low tones. Lavigne suddenly raised his voice, saying "he was foreman there (in the plant) and he would fire whoever he God-damn pleased, whether they belonged to the C. I. O. or whether they didn't belong to the C. I. 0." About March 1938 Lavigne said to Franks, as the latter was leaving the plant, that "the C. I. O. ran him (Lavigne) for a year and now he would run the C. I. O., ... and now he would show who wasi boss. He would fire anybody he wanted to." About March 14, 1938, Carolyn Vinyard overheard Lavigne say to Fairclough, "I am going to fire the whole damn bunch of them, C. I. O. or no C. I. 0." The conversations be- tween Lavigne and Fairclough, which Van Why, Franks, and Carolyn Vinyard overheard, were apparently not intended to be heard by the employees in question. Nevertheless, the aggregate of these remarks clearly demonstrates that Lavigne had developed a hostility to the C. I. O. and its members. The volume of work in the spinning room began to decline late in 1937. The spinners agreed among themselves to an arrangement to share the remaining work, whereby in rotation each spinner would voluntarily accept a 1-week lay-off.$ This arrangement was put into effect, with the result that each spinner was laid off about every fourth week. As each spinner's turn arose thus to be laid off, it was custom- ary for either Lavigne or Fairclough to notify that spinner that it was then his turn to take the usual 1-week lay-off. In the light of Lavigne's attitude toward the C. I. O. members in the plant and the practice in the spinning room respecting lay-offs, we turn now to consider the lay-offs of Miller, Vinyard, and Cramer. I 8 Melvin Cramer 's testimony indicates that such an arrangement may also have been in effect prior to the organization of the T . W. O. C. HOLLAND MANUFACTURING COMPANY '.227 1. The lay-offs of Miller, Vinyard, and Cramer Miller was hired by the respondent as a spinner in 1935. Vinyard and Cramer were hired by the respondent as spinners in 1933. The respondent does not contend that any of these three persons were incompetent or unsatisfactory employees. All were laid off indefi- nitely and thus not in conformity with the 1-week lay-off plan in operation in the spinning room. Miller and Vinyard were T. W. O. C. members, but were not union officers or committeemen. Cramer was a member of the T. W. O. C. and since June 1937 had been president of the local group. Bill and Frank Tamulis and Kenneth Kramer, the three employees who were retained, were all Alliance members. Each of the Alliance spinners had less seniority than at least one of the T. W. O. C. spinners. In accordance with the arrangement for rotating 1-week lay-offs, Miller had previously been laid off for a week in December 1937 and January and February 1938, respectively.. On March 11, 1938, Frank Tamulis, another spinner, was taking a 1-week lay-off in accord- ance with this arrangement. It was Miller's turn to take the next 1-week lay-off. On this date Fairclough notified Miller that the latter was laid off until work "picked up." Miller protested to Lavigne that since Tamulis had only been em- ployed for 1 year while Miller had been employed for 31/z years, Tamulis should first be laid off indefinitely. Lavigne told him that he intended to retain Tamulis, and that Miller was laid off until work "picked up." Lavigne did not advise Miller that he was laid off for the customary week. Previously when he had been laid off, Miller had been notified at the time of his lay-off when he should return to work. Miller explained that he did not subsequently apply for re- instatement because he understood that he would be notified by the respondent when work had increased sufficiently to warrant his re- turn. Tamulis returned to work at the end of his 1-week lay-off. Although he had worked on the previous day, on March 23, 1938, Vinyard was not at work because of illness. On that date Lavigne said to Carolyn Vinyard, Jack Vinyard's wife, "Tell Jack not to come in . . . the work is getting slack." Vinyard had previously been laid off for 1 week under the above-described rotating arrangement. In June 1938 Fairclough asked Carolyn Vinyard if her husband had been able to secure work elsewhere. Upon learning that he had se- cured a job elsewhere as a substitute employee, Fairclough remarked that Vinyard should seek to retain this employment. When Vinyard was laid off he had more seniority than both Bill and Frank Tamulis, both of whom were retained.9 ° It appears that after his lay-off on March 23, 1938, Vinyard worked for the respondent for 2 days in the week ending April 2, 1938, but that the work was hauling cinders. It bore no relation to his employment as a spinner. 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 31, 1938, Fairclough told Cramer, "Melvin, I am going to lay you off. It is not my fault. Mr. Lavigne has taken the respon- sibility upon his own shoulders." On previous 1-week lay-offs Cramer was always notified that the lay-off was only for 1 week. On this occasion he was not so notified. When Cramer asked Lavigne the reason for his lay-off, the latter told him that it was because of slack business conditions. Cramer protested that there were employees junior to him who should first be laid off indefinitely. Lavigne stated, "That don't make a damn bit of difference, I have a right to lay off whom I damn please ." Cramer testified that he was the senior spinner and that Bill and Frank Tamulis and Kenneth Kramer were em- ployees with less seniority than he. His testimony was not satisfac- torily controverted by the respondent. In his Intermediate Report the Trial Examiner found that Miller, Jack Vinyard, and Melvin Cramer were discriminatorily laid off. The respondent excepted to this finding. In its brief in support of its exceptions concerning Miller and Vinyard the respondent argues : Although it may seem a suspicious circumstance, if one looks with blinders at the spinning department alone, that these ... C. I. O. members were laid off, or thought they were laid off, while ... Alliance men were retained, however, if the blinders are removed it appears, as above noted, that, at the same time, two Alliance members were laid off on the floor outside of the spinning room, and in fact these unfortunates have not been re- turned to work. So even if the lay offs of Miller and Vinyard were intended as such, how can the Trial Examiner find discrimi- nation when, looking at the plant as a whole, the ratio is three of the C. I. O. group laid off to two of the Alliance group laid off... The two Alliance members above referred to are Mary Weiss and Mary Blake. Weiss was laid off about December 1937. After work- ing for a short period in April 1938, she was again laid off. The Alliance had not been organized in December 1937 and there is nothing in the record to indicate whether her second lay-off in April 1938 had any connection with her previous 3-month lay-off, nor any- thing to indicate what the reasons were for either lay-off. Concern- ing Blake's lay-off the record is silent, except for Kenney's statement that she had been laid off "for a number of months." There is nothing in the record to indicate whether the Alliance had been organized when Blake was laid off or the reasons for her lay-off. In view of the barrenness of the record regarding the circumstances of the lay-offs of Weiss and Blake, we do not regard them as a demonstration of the respondent's impartiality respecting labor organizations. J HOLLAND MANUFACTURING COMPANY 1229 The respondent argues that it did not know that Miller and Jack Vinyard were T. W. 0. C. members. Although Kenney testified to his lack of knowledge of their union affiliation, Lavigne, who ap- peared as a witness for the respondent, did not testify in this respect. Because Cramer had represented the T. W. 0. C. in negotiations with the respondent, Kenney assumed that he was a member of that organization. In view of his attitude respecting the T. W. 0. C., as expressed to Fairclough and Franks, and the fact that only the T. W. 0. C. spinners were laid off indefinitely without adequate explanation, we are of the opinion that Lavigne in fact believed that these employees were T. W. 0. C. members, and his action in laying them off is attributable to the respondent 10 The respondent at no time contended that the lay-offs of Cramer, Miller, and Vinyard were not indefinite. Kenney understood from Lavigne that in the case of employees who were laid off for a week, a number of them did not return to work at the expiration of such lay-offs and Lavigne did not "bother" to send for them. The record does not indicate whether or not Kenney and Lavigne in this respect were referring to Cramer, Miller, and Jack Vinyard, or to other employees who had been laid off. From the testimony of Cramer, Miller, and Vinyard it is clear that the arrangement for rotating 1-week lay-offs was changed by Lavigne in March 1938 to an arrange- ment for the indefinite lay-off of these three employees and that they protested this change to Lavigne. Confirmation of our finding that Lavigne made this change is evidenced by Fairclough's above-quoted statement to Cramer, "Mr. Lavigne has taken the entire responsi- bility upon his own shoulders." There would have been no occasion for Fairclough's explanation to Cramer of the lay-off on this occasion, except in a case where a previously understood arrangement was being abandoned. Accordingly we conclude that Kenney or Lavigne's reference to employees who failed to return to work at the expira- tion of a 1-week lay-off must have referred to employees other than Cramer, Miller, and Vinyard. We are satisfied that the reason Cramer, Miller, and Vinyard did not return to work a week after their respective lay-offs was that they were each notified that they were laid off indefinitely. We find that the respondent, by laying off Cyrus Miller, Jack Vinyard, and Melvin Cramer, discriminated in regard to their tenure of employment, thereby discouraging membership in the T. W. 0. C., and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 10 Swift & Company v. National Labor Relations Board, 106 F (2d) 87, 93 (C C. A. 10), mod'g and enf 'g Matter of Swift it Company, a Corporation and Amalgamated Meat Cutters and Butcher Workmen of North America , Local No 6111, at at ., 7 N. L R B 269 1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent argues that all three have secured other regular and substantially equivalent employment, and are not entitled for that reason to reinstatement or back pay. While we do not agree with the respondent that we may not, under the Act, order reinstate- ment to an employee unlawfully discriminated against who has at- tained regular and substantially equivalent employment elsewhere,1' we find that Cramer, Miller, and Vinyard have not secured any other regular and substantially equivalent employment since their respec- tive lay-offs. At the time of their respective lay-offs Miller was earning $17 per week, Vinyard was earning $17.08 per week, and Cramer was earning $17.25 per week. Miller has since worked as a temporary employee for the Stroudsburg Water Company, earning about $100, at the rate of $17.00 per week, Cramer has received a wage of $13.20 per week from the W. P. A. since August 1938, and Vinyard has worked for a cement block contractor, Pooley, earning about $300 or $400 at the rate of $20 per week. Vinyard's hours of work as an employee of Pooley were longer than were his hours as an employee of the respondent. Moreover Vinyard's work is dependent upon weather -conditions and his $20 wage rate is for a full week of favorable weather. Cramer, Miller, and Vinyard each desire reinstatement. 2. The lay-off of Transue Anita Transue was hired about 1933 and worked in the stamping department under Forelady Bertha Thompson. Transue joined the ,T. W. O. C. in March 1937 and was a member of the T. W. O. C. grievance committee. By March 1938 she was the only employee in that department who had not joined the Alliance. During that month she was once laid off for a half day. On the occasion of her lay-off in March, Beatrice Kresge, the Al- liance committeewoman for the stamping department, in Transue's presence told Thompson that the employees in Transue's depart- ment had decided that thereafter when work was slack in the stamp- ing department, Transue should be the first departmental employee laid off because she was not a member of the Alliance. Thompson made no reply to Kresge's statement. At the hearing, Kresge's ex- planation for making this statement to Thompson was that the Alliance members employed in the stamping department had agreed to an arrangement to share the lay-offs with each other. Since Transue was the junior employee at Kresge's table, the Alliance members "didn't feel that it was right" for Transue to share their n Cf. Matter of Eagle-Picher Mining & Smelting Company, et at. and International Union of Mine, Mall & Smelter Workers, etc, 16 N. L R . B 727. 1 HOLLAND MANUFACTURING COMPANY 1231 work. Transue on the other hand testified that she was the third employee in seniority in the department. Her testimony regarding her seniority is not controverted and we accept it as true. On April 27, 1938, Thompson notified Transue that she was laid .off, saying, "Anita, there is no work. I will have to lay you off, I don't know when the work will be picking up enough so you will have work." It is clear that Thompson laid off Transue in accord- ance with Kresge's proposal. Transue secured from Thompson and Kenney an agrement that the respondent would notify her when work had increased sufficiently for her to return. Thereafter she spent about 2 weeks at her home in Rhode Island. Upon her return to Stroudsburg she worked as a waitress, earning about $40, at the rate of $6 per week and her board. She was recalled to work on August 3, 1938, but was unable to re- turn until the following day. The contract between the respondent and the Alliance contains no provision affording Alliance members a preference in lay-offs. Transue's lay-off on April 27, 1938, was plainly a discrimination in favor of the employees who were Alliance members. We find that the respondent, by laying off Anita Transue, dis- criminated in regard to her tenure of employment, thereby dis- couraging membership in the T. W. O. C., and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent also argues in Transue's case that during the period of her lay-off, she received other regular and substantially equivalent employment and for that reason is not entitled to back pay during such period. At the time of her lay-off on April 27, 1938, Transue was earning about $15 per week. Her employment as a waitress was neither equivalent to her employment with the re- spondent nor were her wages as a waitress equivalent to the wages which she received from the respondent. We find that she 'did not secure, any other regular and substantially equivalent employment during her lay-off from April 27 to August 3, 1938. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III E above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. 1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order that it cease and desist therefrom, and that it take certain affirmative action which will effectuate the policies of the Act. We have found that the respondent has engaged in unfair labor practices by laying off Cramer, Miller,. Transue, and Vinyard, and that Transue was offered reinstatement on August 3, 1938. Since she has already been reinstated our order as to her will be limited to back pay and to the restoration of her seniority and other rights and privileges. We will order the respondent to, make Transue whole for any loss of pay she has suffered by reason of her lay-off by pay- ment to her of a sum equal to that which she would normally have earned as wages from the date of her lay-off to the date upon which she was offered reinstatement, less her net earnings 12 during said period. We will order the respondent to offer Melvin Cramer, Cyrus Miller, and Jack Vinyard immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of pay they may have suffered by reason of their respective lay-offs by payment to each of them of a sum equal to that which he would normally have earned as wages from the date of his lay-off to the date of the offer of reinstatement, less his net earnings during said period.13 We will dismiss the complaint in so far as it alleges that the re- spondent discriminatorily discharged Van Why, dominated and in- terfered with the formation and administration of, and contributed support to, the Alliance, and refused to bargain collectively with the T. W. 0. C. as the duly designated representative of a majority of its employees in an appropriate unit. ^ By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for her unlawful lay-off and the consequent necessity of her seeking employment elsewhere See Matter of- Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N . L. R: 13 440 Monies received for- work performed upon Federal , State, county , municipal , or other work -relief projects are not considered as earnings , but, as provided in the Order , shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal , or other government or governments which supplied the funds for said work -relief projects 13 The record does not show whether the respondent 's custom is to notify employees who have been laid off when to return or whether such employees are required to request re- employment. Since the lay-offs herein were discriminatory, we do not believe , even if the respondent observed the latter custom, that the above-named employees should suffer as a result of their failure to apply for reinstatement " . . It rested upon the tortfeasor to disentangle the consequences from which it was chargeable from those from which it was immune" National Labor Relations Board v. Remington Rand, Inc, et at., 94 F (2d) 862, cert. denied 304 U. S. 576 , enf'g as mod . Matter of Remington Rand, Inc . and Reming- ton Rand Joint Protective Board, etc , 2 N. L. R. B 626. HOLLAND MANUFACTURING COMPANY 1233 Upon the basis of the foregoing findings of fact, and upon the entire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. Textile Workers Union of America, formerly known as Textile Workers Organizing Committee, and Holland Workers Alliance are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the tenure of employment of Melvin Cramer, Cyrus Miller, Anita Transue, and Jack Vinyard, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not discriminated in regard to the hire and tenure of employment of Cathleen Van Why, within the meaning of Section 8 (3) of the Act. 6. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (2) and (5) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, Holland Manufacturing Company, Stroudsburg, Pennsylvania, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of Amer- ica, formerly known as Textile Workers Organizing Committee, or any other labor organization of its employees, by laying off any of its employees, or in any other manner discriminating against its em- ployees in regard to their hire and tenure of employment or any term or condition of their employment; (b) 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 labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection. 1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Melvin Cramer, Cyrus Miller, and Jack Vinyard im- mediate and full reinstatement to their former or substantially equiv- alent positions, without prejudice to their seniority and other rights, and privileges; • (b) Restore to Anita Transue her seniority and other rights and privileges; (c) Make whole Melvin Cramer, Cyrus Miller, Anita Transue, and Jack Vinyard for any loss of pay which they may have suffered by reason of their respective lay-offs by- payment to each of them of a sum of money equal to that which he would normally have earned as wages from the date of his lay-off to the date of the offer of reinstatement, less his net earnings during said period; deducting, however, from the amount otherwise due to each of the said em- ployees, monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (d) Post immediately in conspicuous places at its plant, and main- tain 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 para- graphs 1 (a) and (b) ; (2) that it will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3) that the respondent's employees are free to become or remain members of Textile Workers Union of America, formerly known as Textile Workers Organizing Committee, and that the respondent will not. discriminate against any employee because of membership or activity in that organization; (e) Notify the Regional Director for the Fourth Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. AND IT IS ORDERED that the complaint be, and it hereby is, dis- missed in so far as it alleges that the respondent discriminated against Cathleen Van Why in regard to her hire and tenure of employment. AND IT Is FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices, within the meaning of Section 8 (2) and (5), of the Act. HOLLAND MANUFACTURING COMPANY 1235 MR. EDWIN S . SMITH , dissenting in part : I am of the opinion that Kenney's activities in suggesting to the employees in 1937 that they might secure wage increases without resort to union organization and in polling the employees to ascer- tain their union affiliation amounted to an interference with the employees in the exercise of their right to self-organization. Ken- ney's statements, which he admitted having made, were clearly calculated to discourage the employees from seeking wage increases through the T. W. 0. C. His poll of the employees to determine whether they desired to be represented by the T. W. 0. C. was conducted in a manner no different from other polls conducted by employers and which the Board has consistently condemned as un- warranted interferences with self-organization. 14 Nor do I believe that the respondent's conduct thereafter in negotiating with the' T. W. 0. C. constituted an exoneration of Kenney's unlawful acts. It is plain from the record, despite the existence of the contract with the T. W. 0. C., that the respondent's hostility to this union persisted. As the majority of the Board finds, and in which finding I concur, the respondent's antagonism thereafter found concrete form in the discriminatory lay-offs in March and April 1938. Under the circumstances I believe that the Board is amply warranted in con- sidering the entirety of the respondent's conduct and issuing an order with respect to all such activities which were intended to, or have had the effect of, discouraging the union activities of its employees. u Matter of Arthur L. Cotten and A. J. Colman, co-partners, doing business as Kiddie Kover Manufacturing Company and Amalgamated Clothing Workers of America, 6 N. L. R. B. 355; enf 'd, National Labor Relations Board v. Arthur L. Cotten and Abe J. Colman, Co-partners doing business as Kiddie Kover Manufacturing Company, 105 F. (2d) 179 (C. C A. 6) ; Matter of The Heller Brothers Company, etc . and International Brotherhood of Blacksmiths, Drop Forgers, and Helpers, 7 N. L. R . B. 646; Matter of Okey Hosiery Company, . Incorporated, et at. and American Federation of Hosiery Workers, North Caro- lina District , 22 N L R B. 792.