The Holmes Silk Co.

National Labor Relations Board - Board Decisions

Aug 5, 1940

26 N.L.R.B. 88 (N.L.R.B. 1940)

In the Matter of THE HOLMES SILK COMPANY and TEXTILE WORKERS
UNION OF AMERICA
Case No. C-1826.-Decided August 5, 1940
Jurisdiction : textile manufacturing industry.
Unfair Labor practices
Interference, Restraint, and Coercion: declarations of union preference; threatened
cessation of operations. - ,
Company-Dominated Union: employer's suggesting formation of, and presenting
plan for, to employees-permitting use of company bulletin boards by-indicia
of domination: consummation, without proof of authority and after cursory
negotiations, of agreement, containing no material changes in working condi-
tions, during pending negotiations with outside union; appearance of dominated
union during strike.
Discrimination: lay-offs of employees because of their union membership and
activities; charges of discrimination as to one person, dismissed.
Remedial Orders: reinstatement and back pay awarded; company-dominated
union disestablished and contract with said dominated union, abrogated.
Mr. Joseph Castiello, for the Board.
Mr. Michael J. Maggio, of Williamsport, Pa., for the respondent.
Mr. James H. Mitchell, of Williamsport, Pa., for the Association.
Mr. Bonnell Phillips and Mr. Frederick W. Killian, of counsel to the
Board.
DECISION,
AND
ORDER
STATEMENT OF THE CASE
Upon third amended charges duly filed by Textile Workers Organiz-
ing Committee ,' predecessor of Textile Workers Union of America 2
the National Labor Relations Board ,, herein called the Board, by the
Regional Director for the Fourth Region (Philadelphia , Pennsylvania)
issued its complaint dated May 5, 1939, against The Holmes Silk
I Herein called the Union.
2 Subsequent to the hearing and issuance of the Trial Examiner's Intermediate Report herein, the National
Labor Relations Board, upon motion duly filed and accompanying affidavit stating that Textile Workers
Union of America had become the legal successor of Textile Workers Organizing Committee, issued its order
to show cause why the motion filed by said Textile Workers Union of America praying that its name be
substituted for that of Textile Workers Organizing Committee in this proceeding should not be granted.
No objection having been thereafter made, the National Labor Relations Board, on October 19, 1939, issued
its order granting the above motion.
26 N. L. R. B., No. 10.
88
THE' HOLMES SILK COMPANY 89
Company, Williamsport, Pennsylvania, 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.
With-respect to the unfair labor practices the complaint alleged in
substance (1) that the respondent in or about, July or August 1937
caused to be formed,' and continued to dominate and interfere with
the formation and administration of, a labor organization among its
employees -known as Newberry Textile Workers' Association, herein
called the Association, and contributed support thereto; (2) that the
respondent discriminated in regard to the hire and tenure of employ-
ment of seven named employees; 3 and (3) that the respondent, by the
foregoing acts and in other ways interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act. Copies of, the complaint, accompanied by notice of hearing,
were duly served upon the respondent, the Union, and the Association.
The respondent filed an answer to the complaint, dated May 25,
1939, denying that it had engaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held at Williamsport, Pennsyl-
vania, on May 25, 26, and 31, 1939, before Madison Hill, the Trial
Examiner duly designated by the Board. The Board and the respond-
ent were represented by counsel and participated in the hearing. The
Association was represented at the hearing by its president but did not
otherwise participate in the proceedings. Full opportunity to be
heard, to examine and cross-examine witnesses and to introduce
evidence bearing on the issues was afforded all parties. At the close.of
the hearing the Trial Examiner granted without objection a motion to
amend the complaint to conform to the proof. During the course of
the hearing rulings were made by the Trial Examiner on other motions
and objections to the admission of evidence. The Board has reviewed
these rulings and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
On July 11, 1939, the Trial Examiner filed his Intermediate Report,
copies of which were duly served upon the parties, finding that the
respondent had engaged in and was engaging in unfair labor practices
within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and
(7) of the Act, and recommending that the respondent cease and desist
therefrom and, affirmatively, that the respondent withdraw all recog-
nition from and completely disestablish the Association as a represent-
ative of its employees for the purpose of collective bargaining, and
that the respondent offer -full reinstatement with back pay to Lena
Snyder, Ruth Bower, Mrs. Chester Snyder, Sarah Bierly, Chester
3 Lena Snyder, Ruth Bower, Mrs. Chester Snyder, Sarah Bierly, Chester Snyder, Oak Bierly and Gilbert
Bower.
.1 .1
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Snyder, Oak BIerly; and Gilbert Bower. In his Intermediate Report:
the Trial Examiner advised the parties that they had the right to file.
briefs and to request oral argument before the Board. ,
Thereafter the respondent filed exceptions to • the Intermediate
Report. None of the parties exercised the right to file briefs or re-
quested oral argument. The Board has considered the exceptions to
the Intermediate Report and, in so far as they are inconsistent with
the findings, conclusions, and order set forth below, finds no .merit in
them.
Upon the entire record in the case the Board makes the following:
FINDINGS OF FACT
-I. THE BUSINESS OF THE RESPONDENT
The respondent, a New Jersey corporation with its principal place'
of business and only operating plant' at Williamsport, Pennsylvaiia,
is engaged in the manufacture of broad silk, rayon, cotton goods,
and similar products. Approximately 95 per,cent of the raw mate-
rials used in the manufacture of -these products is secured by the
respondent from points outside of the State of Pennsylvania. The
respondent's finished products, amounting in value for the year 1938
to approximately $670,000, are almost entirely distributed to points
outside of Pennsylvania.
It was stipulated at the,hearing that the respondent is engaged in
commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Textile Workers Union of America, formerly known as Textile
Workers Organizing Committee,' is a labor organization affiliated
with the Congress of Industrial Organizations. It admits to member-
ship employees in the textile industries.
Newberry Textile Workers' Association is an unaffiliated labor,
organization, admitting to membership employees of the respondent'"
III. THE UNFAIR LABOR PRACTICES
A. Inte?ference, restraint, and coercion; domination, interference with,
and support of the Association
1. Events prior to the formation of the Association; the instigation
of the "shop plan" petition -
The first organizational activity at the respondent's plant was\
begun, as far as the record reveals, in April 1937; by the Union. By
4 At the time of the hearing the respondent also owned a dismantled textile mill at Ridgway,
Pennsylvania
5 See footnote 2, supra.
6 It was testified during the course of the hearing that the Association admits to membership persons
other than employees of the respondent . The Association's bylaws , however, limit voting privileges and
other prerogatives of membership to employees of the respondent.
THE HOLMES SILK COMPANY 91'
September ; 1937, due in considerable degree to the solicitations of
Chester Snyder, a'weaver employed by the respondent in its second
or night shift, unioli membership approximated 48 of the 189 workers
then yin the respondent's employ.
During the,period of this growth, in June 1937, Snyder was informed
during a conversation with his foreman,'Oscar Edler, that the respond-
ent's officials had refused an order for the manufacture of textiles
because the -officials were "worried that they would take an order
and the C. I. O. would get in the plant and cause a strike and they
would not be be' able to get the order out,on time." , As will appear
more fully hereinafter, the respondent normally operated without
any backlog of orders and at various times employment at the re-
spondent's plant was seriously curtailed due to a lack of business.,
Consequently Edler's statement that the respondent's officials had
refused an order because of the presence of the Union in the plant
must be viewed, especially. under these, circumstances, as a grave
threat that continued union activity would result in unemployment
for many of the respondent's employees.
We find that the respondent, by the above-described conduct of
Edler, a supervisory official with power to hire and discharge, inter-
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed iii Section 7 of the Act.
On or about July 15, 1937, Edler ordered an employee on the night
shift named John= Fenderson to present to 'each 'employee in the shift
a' paper given-to him by Edler and' drawn in the form of a petition
to the effect that "we; the undersigned, are 'desirous of forming a shop
plan' union." The text of the petition carried a further statement that
if a sufficient number of the respondent's employees signified their,
assent to this proposition, a plan of organization would be explained
to them. Pursuant to' Edler's instructions, Fenderson showed the
petition to the employees in turn, asking them whether they wished to
sign it, and thereafter returned it to Edler.7 The circulation of this
petition, testified to -by Fenderson and by various employees to whom
it'was 'p'resented, was undenied by Edler, who was not summoned as
it witness at the'hearing although the Trial Examiner stated in his
'Intermediate
7 The selection of Fenderson to circulate the petition does not appear to have been predicated upon any
belief that this employee was sympathetic with the purposes of the petition To the contrary, it appears
that Edler kept close watch over Fenders on while he was cairymg the petition from employee to employee
Fenderson and two of the employees to whom he presented the petition testified that when they began to
inspect the petition, "to leaf it over ," Fenderson warned them " not to delay" him lest Edler think he was
urging them not to sign the petition , and further testified that they then looked up and saw Edler watching
them We assume therefore that Fenderson 's selection was based upon his availability for the task In
the respondent's pay roll of August 7, 1937, wherem'a break-down of the positions occupied by the vai ions
employees is,made, Fenderson is the ony employee classified as a "floor hand "
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent, charged in the complaint with the instigation and
circulation of the petition, denied this allegation in its answer. At
the hearing the respondent's president, Willard Phillips, who was at
the time in question the respondent's superintendent, denied having
any knowledge of the existence or circulation of the petition. - While
Edler's supervisory authority was such as to make his actions clearly
attributable to the respondent," we are unable to credit Phillips'.
testimony, and find that the instigation of the petition was the act of
Edler's superior officers. The petition, when given to Fenderson by.
Edler, had on it already the signatures of many of the day-shift em-
ployees. On the day following its circulation, Mrs.-Chester Snyder,
wife of the union leader, inquired of Raymond Lowe, foreman of the
day shift, as to the whereabouts of the petition. Lowe was not called
as a witness at the hearing and consequently Mrs. Snyder's testimony
as to the conversation which thus ensued is uncontradicted :
He (Lowe) said, "Where do you think?"
And I says: "You know that paper isn't supposed to be in the
office."
"Oh," he says, "how' do you think they would get it started?"
On the same day Edler approached Snyder with, a statement that
he had just been severely reprimanded by the respondent's manage-
ment "on your account." In explanation Edler stated that the repri-
mand had been given him because "there wasn't enough names on that
paper on the night shift" and that "they claimed you used your influ-
ence to keep the people from signing that paper , _. . that you
held a meeting outside the mill yesterday afternoon, before you came
to work." Snyder, immediately denied that there was "talk of any
kind of a union outside the mill yesterday," and later repeated this,.
denial to Phillips. Snyder testified that Phillips, after admitting that
a report on Snyder's activities of the day before had come to the office,,
stated, "as far as I am concerned I don't care how many names arc
on that paper, the only thing I feel is that if we must have a union here
in the plant I would sooner have a shop union of our own employees
instead of having an outsider come in telling us what to do." The
Trial Examiner credited Snyder's testimony, as to ,this interview over
Phillips' denial that the conversation had occurred. In view of the
Trial Examiner's finding, and the undenied testimony concerning the
prior statements by Lowe and Edler, we find that Phillips made the
statements attributed to him by Snyder substantially as set forth
above. It is apparent and we find from the foregoing testimony that
the petition, which stated, according to Fenderson, not only that the
signers wished to form an "inside union" but that they preferred this
type of organization to "becoming affiliated" with an outside union,
originated in the respondent's "office" with the cognizance and approval
8 As already stated. Edler was vested with authority to hire and discharge.
THE HOLMES SILK COMPANY 93
of officials superior to Edler and_ Lowe. It is also apparent that the
respondent's officials were dissatisfied with the response made to their
plea by the employees of the night shift, and believed that Snyder,
having learned of the petition's circulation among the day shift,
had urged the employees on the night shift before they reported to
work to refuse their signatures to the petition.
We find that the respondent, by the instigation and circulation of a
petition urging the formation of a shop-plan union in preference to
an "outside union", and by Phillips' later statement to Snyder
indicating the same preference, interfered with, restrained, and coerced
its employees in their rights of self-organization, to form, join, and
assist labor organizations, and to engage in concerted activities for
the purpose of collective bargaining and other mutual aid and pro-
tection as guaranteed in Section 7 of the Act.
2. The formation of the Association
Approximately one month after the circulation of the above-dis-
cussed petition urging the formation of a shop-plan union, the union
membership in the plant went on strike, establishing a picket line
outside the respondent's mill. The record reveals that this action
was not caused by the respondent's unfair labor practices, but was
taken in response to a general strike call issued by the Textile Workers
Organizing Committee for the purpose, as far as the record shows,
of improving general conditions throughout the textile industry. The
Association, alleged in the complaint to have been instigated, domi-
nated, and supported by the respondent, had its formal inauguration
while this strike was in progress.
The record lacks information concerning the preliminary steps
taken in the formation of the Association. The Board attempted to
elicit such information from Joseph Glenn, an employee elected the
Association's first president. Although questioned at- considerable
length, Glenn, testifying under subpoena issued by the Board, not
only confessed ignorance concerning the details of the Association's
inception or the preliminaries to its formation, but in many respects
professed forgetfulness of incidents in the Association's history which
were patently within his knowledge at the time of their occurrence.'
There was no other testimony or evidence introduced by any party to
the proceeding to supply the material lacking in Glenn's testimony.
In the absence of any showing as to the preliminary steps looking
towards the formation of the Association, and the inability or refusal
by Glenn to convey any material information in this regard, we
think significant the fact that the above-discussed shop plan petition
circulated by the respondent contained a statement that if enough
employees signed the petition, a plan of organization would be -ex-
Excerpts from the testimony of Glenn are set forth hereinafter.
94 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
planned to them. The minutes of the Association's first meeting, held
on August 30, 1937, reveal that the 14 members then present adopted
without recorded debate an elaborate set of bylaws, consisting of 15
articles and many subdivisions thereof. According to the testimony
of Glenn, these bylaws, which were in effect the Association's consti-
tution, were drafted and presented to the Association by John Young-
man, an attorney.10 Glenn, however, testified that he was without
knowledge of the persons who had retained Youngman or who had
recommended the attorney to the Association. Since the bylaws were
in existence prior to the Associations first meeting, it will of course be
recognized that the Association could not haveguaranteed the attorney
compensation for his work in preparing the said bylaws. Under the
circumstances, in view of the implication in the "shop plan" petition
that a plan of organization was already in existence at the time of
Its circulation," and in consideration of the contents of the Associa-
tion's bylaws and other factors hereunder discussed, we think it
reasonable to infer not only that the Association was formed in
response to the respondent's request for an intramural union, as con-
tained in that petition, but that the Association adopted a plan of
employee representation presented to it by the management.12
Article II of the Association's bylaws contains a preamble as to the
purposes of the organization. It reads as follows:
The purposes are to promote cooperation between the employ-
ees and the management; to give employees a voice in matters of
mutual interest, including wages, hours of work, safety, sanita-
tion, and other working conditions; to provide an orderly and
expeditious procedure for the prevention and adjustment of differ-
10 Glenn, in response to a question as to who had drafted the constitution or bylaws, stated "Why the
attorneys drew that up " Only Youngman, however, was named by Glenn.
ii As before stated, the petition, while it contained no explanation of the proposed form of the shop-plan
union, did, however, contain a provision that if enough of the employees sign the petition, the plan of organ-
ization would be explained to them
i2 An indication that the formation of the Association was not an act of self-organization by the employees
of the respondent, is also found in Glenn's testimony Glenn, chosen at the beginning of the Association's
first meeting as temporary president and later elected its first annual president, stated, while a witness,
that he could not recall certain events which occurred at the Association's first meeting. Glenn was
instructed .
Look at the minutes, and also you were presiding, you should remember as well as anyone
A. No, I was not the presiding ollicer.
Q Well, what did the temporary president do, will you please tell nic that?
A Mr Youngman (the attorney] was what I call the temporary president
Q The attorney was the temporary president?
A. I-Ie was the former of the organization
Q Well, was lie a leader in the formation of the organization?
A I do not understand that question
Q T)id Mr Youngman, the attorney, foi in the organ eats ii?
A That is not cleat to nie, I do not understand ii
.e # * k d
Q You testified that ills Youngman piezided at tlic fast nieetmg, is that correct?
A I wouldn't say exactly presided, lie was there '
Q I am merely follon uig your words, and is it your testimony at this time that you wcrc selected
over Mi Youngman? -
A. That is light
THE HOLMES SILK COMPANY .95
.ences; and to afford a means through which employees may be
furnished information of mutual interest by the management.
In order to effectuate - the purposes of the Association, as above
promulgated, the bylaws provide, in substance, for the election by
Association members of "Employee Representatives "-each member
being granted the right to vote solely for a representative from the
work division in which he is classified under the bylaws. Representa-
tives of the seven departments in the mill thus chosen constitute
collectively the "Association Council," membership in which is, how-
ever, automatically terminated if a representative "leaves the service
of the Company." This council "as governing body of the Associa-
tion, may consider and make recommendations on all questions
relating to wages, hours of labor," and other enumerated conditions
of employment. It is further stipulated in the bylaws that "the
Council may on its own motion investigate matters of mutual interest
and make recommendations to the management." In the presenta-
tion of such matters, however, the Council is restricted by a provision
imposed by the Association's own bylaws, that "all meetings requested
by the Employee Representatives for the purpose of meeting with
the Management must be given in writing, stating reason for meet-
ing." 13
In contrast to the somewhat subservient character of these provi-
sions relating to collective bargaining procedure, the bylaws, adopted,
of course, without any revealed sanction by the management, have
numerous sections which place obligations upon the respondent.
Article VII, Section 9 of the bylaws provides for nominations and
elections of officers of the Association. - It contains • the following
provision:
The results of the balloting and the names of the nominees
shall be posted on the employees' Association's bulletin board as
soon as the votes have been counted and the nominations declared
Similarly, Article XV of these bylaws provides in part that:
Notice ' of any proposed amendment to the bylaws shall be
posted by the Secretary of the Association on the bulletin board
of the Association in the plant at least 10 days prior to the
meeting at which such proposed bylaws are to be voted upon.
Despite the' fact that the Association bad-no contract with the re-
spondent guaranteeing the use' of a bulletin board in the plant, the
record reveals and we find that the Association, having arrogated to
itself the use of-such' facilities in its bylaws, posted and maintained
without objection from the respondent a notice of a meeting set for
13 In the contract later made between the Association and the respondent it is stipulated that "Oral
complaints are permitted to be made to foremen or assistant foremen, but any complaint made to the execu-
tive office or officers of the Company must be in writing.
96 DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD
October 30, 1937, on a plant bulletin board. Although this notice
was prominently displayed and was maintained over a considerable
period of time, the respondent gave no order to -remove the notice.
In view of the hostility expressed by the management to the Union-
hostility which subsequently found expression in the discriminatory
lay-offs and discharges of several active leaders of the Union 14-we
find that the respondent by its action in granting the facilities of its
bulletin board to the Association, contributed support to that or-
ganization.lb
Returning again to a discussion of the Association's bylaws, we find
numerous other provisions thereof which place obligations upon the
respondent. Article XI, containing,a "procedure for adjustment,"
stipulates that if the employees' representative is unable to reach a
satisfactory agreement concerning a grievance with the aggrieved
employees' foreman, "they, in consultation with the management's
representative, shall prepare a joint statement of the matter to ' be
taken up with the foreman's superior officers." Section 2 of the same
article provides that the Council "may go in a body with the manage-
ment's representative to any part of the plant for the purpose of
making an investigation." Section 5'thereof provides that "within
10 days after the matter has been referred to him, the plant manager
shall 16 either (a) propose a settlement; or (b) refer the matter to
arbitration."
Finally, in Article XIII, making a provision for the "independence
of representatives," it is stated:
A representative shall be free to discharge his duties in an
independent manner without fear that his individual relations
with the company may be affected by any action taken by him
in good faith in his representative capacity. To assure each
representative such independence of action, he shall have the
right to take any question of an alleged personal discrimination
against him on account of his acts in his representative capacity,
to any of his ranking works executives, and failing a satisfactory
adjustment, to place the matter before the council.
In the above-quoted article reference is made to a "right" to take
any question of an alleged personal discrimination to the respondent's
supervisory officials. This "right," as well as other duties which are
incumbent upon the respondent under the bylaws, could; of course,
only be guaranteed by the respondent, and their assertion in the con-
stitution of a newly created organization, in and of itself strongly
suggests employer participation in the preliminaries to the Associa-
14 See Section III B, infra.
15 It will be noted that Snyder had even been reprimanded in effect by Edler for speaking of union matters
outside the plant and before working hours.
A Italics supplied.
THE HOLMES SILK COMPANY 97
tion's formation. It is further stipulated in Article XIII that in the
event "the Representative's claim is sustained (by the Council), the
matter shall be referred to the Plant Manager; and failing a satis-
factory adjustment with the Plant Manager, it shall be submitted to
arbitration." While it is our opinion that the unilateral assertion of
these privileges reflect and-reveal the respondent's domination of and
participation in the Association, we think also significant the fact that
the. contract which was later executed between the Association and
the respondent, while it did not materially alter the conditions of
employment which obtained in the respondent's plant prior to the
existence of the Association, did, however, incorporate without change
in phraseology' the procedure "guaranteeing" the independence of
representatives,17 the arbitration provisions in the Association's by-
laws, and other obligations which the said bylaws placed upon the
respondent.18
To negative the inferences of employer participation in the forma-
tion of the Association, the record contains only a statement by
Joseph Glenn that the respondent was not aware of the existence of
the Association until it was informed of that fact by a committee of
three representatives of the Association, selected by it at its second
meeting some time between August 30 and September 7, 1937. Glenn,
appointed to this committee, was asked:
Q. Why did you go in and notify the company?
A. We wanted them to know that we represented the majority
of the workers. .
Q. So that it is your testimony that you at that time repre-
sented the majority of the workers?
A. That is right.
We are unable to. credit Glenn's testimony in this respect. The first
two meetings of the Association had been attended by 14 and 12 mem=
bers, respectively. At its second meeting, during which the committee
of three was formed, the Association also appointed a committee of nine
to solicit membership. Under these circumstances, we think it dubious
that the ,Association had at that time a majority of the respondent's
employees. Glenn, however, further testified:
Q. Do you recall when the committee went in to see the repre-
sentative of the company and:advised them of the formation of a
union, what was said?
A. I do not remember at all.
v See U S Bureau of Labor Statistics, Bulletin No 634, Characteristics of Company Unions 1935 , op cit
p. 127. "In only one case did the company union itself ... undertake to assure independence . To protect
the independence of its officials , it included an arbitration provision in its constitution The acceptance of
the provision by the management implied its participation in the guarantee."
18 This contract moreover , as found below, was granted to the Association without demand that it prove
its status as majority representative of the respondent's employees , although the respondent had previously
refused recognition to the Union unless it could meet this requirement.
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. You stated the purpose was to go in and advise them that
the union represented a majority?
A. That is correct.
Q. Do you recall whether that was told to the management?
A I presume it was.
Q. But you don't remember?
A. I don't remember, no ...
Q. Was the union anxious to see that the company did know
that a union was formed in the plant?
A. I don't remember.
In view of this testimony, which is the only testimony we have con-
cerning this transaction, and in the light of our previous discussion, we
are unable to believe that the respondent had no knowledge of the
Association prior to this time.
Prior to the execution of the Association's contract on November
S, 1937, the Union, through a committee of which Chester Snyder was
a member, submitted a contract to the respondent. The respondent's
superintendent, Phillips, testified that "We told them if they could
prove that they represented a majority of our employees we would look
at it [the contract submitted]." When, however, the Association
began negotiations looking towards the execution of a contract with
the respondent, it is apparent that the respondent did not require
similar proof from that, -organization. These negotiations were
carried out by a committee authorized by the Association of which
Glenn was a member. Glenn's testimony concerning this transaction
follows:
Q Do you recall, Mr. Glenn, whether or not the company
asked you for proof of majority before it signed a contract?
A I do not recall that they asked me that no.
Q. Not you personally, but any members of the negotiating
committee? .
A. They probably asked the others; I • could not tell you.
They did not ask me personally.
'•Q. Were you present when, the company asked anyone i•epre=
seating the Association for proof of majority?.
A No.
Q Were you at all the conferences that led up to the signing
of the contract?
A. Well, I have no way of telling that.
Q. Well, you as president would know when any conference
was to be held on a contract, would you not?
A. Yes. But I don't know whether I was present at all of them
or not. '
THE' HOLMES SILK COMPANY 9,9
This is the complete testimony by Glenn concerning any proof offered
to the respondent concerning the Association's majority status
During the examination of Phillips, the respondent's superintendent,
concerning the same matter, counsel for the respondent questioned
him as follows:
Q. You heard Joe Glenn testify, I believe, that the employees
signed a card and they showed you by these cards that were
signed up that they represented the majority?
Board Attorney: Now wait a minute. 1 object to that, Mr.
Examiner, Joe Glenn did not testify in what way proof was
presented to the respondent.
Respondent's Attorney: I will withdraw the question and put
it this way---
Board Attorney: Yes, but tlio witness is cognizant of the
answer desired in the following question
Respondent's Attorney: I might say there that Joe Glenn did
not testify that way. But let us not encumber the record.
Q. (By respondent's attorney): Did you sign a contract with
the Newberry Textile Workers Association [the Association]?
A., We did,
Q. Do you know whether they represented a majority?
A. They brought in some evidence, they brought in a lot of
names.
Q. And from 'the payroll that you had, did they represent the
majority?
A. I did not check over those names.
Q. Well, who did? How do you know that they represented a
majority?
A. I did not know when the contract-well, I think my brother
and my father looked over the names.
Phillips' father was'deceased at the time of the hearing. However,
there is no stated reason in the record why' Phillips' brother was not
called upon to testify if, in fact, he had made any check as to the
Association's majority status. In,view, therefore, of the ,testimony
by Glenn and Phillips and the fact that Phillips himself carried on
the Iiegotiations with the Association and became the sole party
signatory to the contract on behalf of the respondent, we find that the
respondent granted recognition to the Association without investi-
gating or requiring proof of its status as a majority representative of
respondent's employees, although the respondent had previously
demanded such proof of the Union. We therefore find that the
respondent by this action favored the Association over the Union
and gave support to the Association.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The negotiations and the execution of the contract
Three meetings were held during October 1937 between the repre-
sentatives of the respondent and the Association for the purpose of
negotiating the contract. The first draft of the contract submitted
by the Association contained a provision for a wage increase. This
proved unsatisfactory to the respondent. The Association then
acquiesced in the respondent's refusal to consider a wage raise, appar-
ently without further consideration of the matter, and solely upon the
respondent's statement that due to losses sustained by it over a period
of several years it was not in a position to accede to the Association's
request. The Association also included a provision in the first draft
of the contract- eliminating all work on Saturdays, but, the respondent
being unwilling to accept this provision, it was also eliminated." As
a result, the contract as finally executed contained no material changes
in the conditions of employment which had. previously obtained in the
respondent's plant.20 And although a stipulation was made in the
contract for future negotiations at the end of 6 months between the
Association and the respondent concerning wage. increases, tiie'record
fails to disclose that any such negotiations took place. At the end
of a year the contract was renewed without any change in its provisions.
4. , Conclusions
It is our conclusion, based on the considerations set forth above,
that the respondent, by interfering with, restraining, and coercing its
employees in their attempt to organize and by dominating, interfering
with, and supporting the Association, has established and maintained
among its employees a collective bargaining representative not of their
own choosing.
The formation of a union composed exclusively , of. employees, of the
respondent was first suggested by the respondent in the petition cir-
culated on July 15, 1937. Phillips' statement to Snyder that "the
only thing I feel is that if we must have a union here in the plant I
would sooner have a shop union of our own employees leaves no
doubt that the petition was circulated to counteract and defeat the
steady growth of the Union among the respondent's' employees.
Thereafter, during a period of strike activity, the Association, a form
of organization specifically approved by the respondent's petition,
came into being under the auspices of persons unrevealed. The re-
IC Retained and incorporated in the final contract was a provision that the respondent should checlr o1
dues from the wages of the Association 's members and pay such dues to the Association 's financial secretary.
The Association at its first meeting set dues at 50 cents per month, but shortly thereafter reduced such dues
to 10 cents a month.
40 So far as we are able to determine, the only benefit received by the members of the Association was a
provision for a "loom cleaner " and a provision ' lhet employees who desired to work overtime should not be
permitted to do so.
THE HOLMES SILK COMPANY 101
spondent 's tactic approval of the Association 's use of its bulletin
board, and the ready recognition of the Association by contract not
only gave support to the Association but also demonstrated to the
employees that it continued its opposition to their forming or joining
a bona fide labor organization . The lay-offs considered by us below in
Section III B of our decision of necessity strengthened this impression.
We have previously remarked upon the fact that the shop plan
petition contained a statement that if enough of the employees signed
that petition a plan of organization would be explained to them.
There is no evidence in the record to negative the presumption above
drawn that the Association at its first meeting accepted such a plan.
On the contrary the provisions of the Association 's bylaws above con-
sidered are patently modeled after forms of employee representation
plans which we have heretofore considered in other decisions , and have
found to contain the seeds of employer domination . For the reasons
above given we are of the opinion that the provisions of the Asso-
ciation's bylaws are not the indicia of a bona fide labor organization.
We find that the respondent dominated and interfered with the
formation and administration of the Association and contributed sup-
port to it, thereby interfering with, restraining , and coercing its- em-
ployees in the exercise of the rights guaranteed them in Section 7 of the
Act.
B. The discriminatory lay-offs
Reference has previously been made to a strike begun by union
members on or about August 12, 1937 . On or about September 28,
1937 , following conferences between management and union repre-
sentatives , an agreement was reached terminating the strike . Chester
Snyder, a negotiator for the Union , testified that the agreement was
predicated upon the respondent 's promise to reinstate all striking em-
ployees within 10 days after the strike was terminated . Phillips,
then the respondent's superintendent, testified,' however, that the
respondent agreed to reinstate the strikers ' only when business con-
ditions thereafter permitted . We consider this conflict of testimony
below.
Pursuant to whatever agreement which was reached, six of the
seven employees alleged in the complaint to have been discriminated
against were reinstated within 10 days after the strike ended and were
subsequently _ laid off; the seventh, Lena Snyder , sister of the Union
leader, was never recalled . All seven were active union members and
active participants on the picket line maintained by the Union
throughout the strike . The circumstances surrounding their subse.=
quent lay-offs will be discussed individually below,
323429-42-vol. 26-$
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From testimony at the, hearing and from the exceptions filed by the
respondent to the Trial Examiner's Intermediate Report, it appears
that the respondent asserts several defenses to the charges of dis-
crimination within the meaning of Section 8 (3) of the Act; some
applicable to one or more of the seven employees named in the com-
plaint, others general in nature. One defense, asserted in the re-
spondent's exceptions to the Intermediate Report, was persistently
suggested by the respondent's counsel at the hearing, but refuted in
the testimony.of the respondent's sole witness at the ;hearing, Phil-
lips, who became president of the respondent in February 1939. In
brief it is a claim that the residence of employees, that is, whether
they lived in Williamsport, the site of the respondent's plant, was a
factor in the respondent's employment policy. The allegation that
such employees were favored in the determination of lay-offs was
specifically denied by Phillips.21 It was shown, moreover, that the
respondent, although operating with a curtailed force at the time of
the hearing, still retained in its employ several "out of town" em-
ployees.22 We accordingly find this contention to be without merit.
The respondent's chief contention, and the main point of conflict
between Phillips and the employees named in the complaint, is, how-
ever, centered in the question of seniority. The five weavers named
in the complaint23 all testified that when it became necessary to order
a reduction in the number of its employees prior to the strike, the
respondent laid off employees in the following order: married women,
unmarried women, single men, and finally married men. As appears
hereinafter, the 'respondent did not observe this alleged order of
preference in making lay-offs after the strike. Phillips, on the other
hand, testified that the respondent had never maintained any rule
of seniority, but his statement is qualified by the following testimony:
Q. Now, some reference has been made by the various wit-
nesses that you have a policy of seniority, that married men were
taken into consideration first, and then married women, and then
single men and then single women; is that correct?
A. (By Phillips.) To the best interests of the company, yes.
,Q. In other words you mean that the rule was adopted pro-
vided they were efficient and equal with the others in their work?
A. Yes.
"-i Phillips, in response to a question whether, "when it was necessary to lay oil employees (lid you show a
preference towards Williamsport as against people from out of town," stated, "We have not." Phillips also
testified that "people have been after me wanting to know why I did not lay off Jersey Shore [out of town]
people, let them go, and employ Williamsport help, (and) I have told them that I would not let them go "
ii Among them George Long , Esther Kissell , and LaRue Simmons It appears in addition that certain
employees, among them Rodney Pennypacker, who were non-residents of Williamsport, were retained
after the non-residents named in the complaint were laid off , although those retained were junior in point of
service to those laid off
23 Chester Snyder, Mrs Chester Snyder, Oak Bierly, Sarah Bierly, and Gilbert Bower The oche(
employees named in the complaint , Ruth Bower and Lena Snyder , are quillers
THE HOLMES SILK COMPANY 103
From all the testimony concerning this point we find that the re-
spondent , although perhaps not observing seniority in the strict order
alleged by the employees, did observe some form of quasi -seniority,
dependent on the equal skill and productiveness of the various em-
ployees,2' and relaxed , in certain instances , according to Phillips,
because of the employees ' " home conditions , and dependents." The
issue of seniority is further clouded because of the fact , which we infer
from the testimony of Phillips , that when a reduction in the force of
weavers became necessary due to slack business , such employees were
laid off "as their looms ran out ," or became so nearly ` depleted that
the weaver could not longer earn a minimum wage in their operation.
Accordingly, the retention of a weaver junior in service to a laid off
weaver for a period of a week or even a month does not assume sig-
nificance . We do regard as significant herein, however , the retention
of certain weavers not otherwise explained , for long periods of time
if such employees were junior in point of actual service with the re-
spondent , or if their sex or marital status was such as to render then
liable to lay-off, in accordance with the respondent 's rules of limited
seniority , before the weavers named in the complaint . We regard as
material also their reinstatement in the respondent 's employ where
no offer of reinstatement was made to the weavers alleged to have been
discriminatorily laid off. Since we shall have occasion to comment
on such retained or reinstated employees , it is of importance to' note
that the record shows the dates of their first employment with the
respondent in only a few instances . We must therefore accept,
unless contradicted specifically or by inference , the testimony of their
fellow employees that such employees were in fact junior to them in
point of service.
The retention and reinstatement of these employees becomes sig-
nificant in the light of the respondent 's expressed antagonism to
the Union . As before stated, the employees named in the complaint
were active union members and, as above found, the respondent had
interfered with their rights to self-organization by the circulation of
the shop plan petition , designed , clearly, to encourage and solicit
membership in an intramural union, and to express its opposition to
an "affiliated" organization or, in other words, the Union. The
employees named in the complaint had all refused their signatures
to this petition , and after the formation of the Association, which
we have found to be company fostered and dominated in violation
of the Act , had failed to become members of than organization.21
'4 With the exception of one immaterial instance noted below in reference to Chester Snyder, the respond-
ent made no comparison between the skills of the employees named in the complaint and those of em-
ployees junior to them who were retained after they were laid off, nor did it attempt to criticize their previous
work in any manner.
20 The Association 's membership list was of necessity open to inspection by the respondent because of
the check -off provision in the Association 's contract with the respondent See footnote 10, supra
-104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
More important, perhaps, is the fact that the seven named employees,
with one exception '21 had participated actively in the picket line
established outside the respondent's plant during the strike. It is
undenied that when one of these employees, Sarah Bierly, protested
her subsequent lay-off to Phillips, he replied, "You didn't walk the
picket line seven weeks for nothing." It is also undenied that at
the conclusion of the conference which terminated-the strike and pro-
vided for the reinstatement of the strikers, Phillips asked the union
representative "if we were coming back as C. I. O. members" and
received an affirmative answer.
In the light of the above factors we consider, seriatim, the lay-offs
suffered by the six employees named in the complaint, and the respond-
ent's refusal to reinstate Lena Snyder after the strike.
Chester Snyder was first employed by the respondent as a weaver
in 1935 and had worked without lay-off until the time of the strike.
Snyder's leadership in union affairs was manifestly well known to
the respondent. As above seen, Snyder had been in effect repri-
manded by Edler for having used "his influence" in causing certain
night shift employees to refuse their signatures to the shop plan
petition. Snyder had been conspicuous in his activity during the
strike, assuming charge of the, picket line during the. absence of the
Union's director who was not an employee. Thereafter, Snyder
was the only employee who participated in the conference with the
respondent which led to the termination of the strike. On the forma-
tion of a local branch of the Union in October 1937, Snyder became
vice president, and within a month thereafter, president of the Local.
Following three months' employment after the strike, Snyder was
laid off on January 14, 1938, by his foreman, Oscar Edler. The
lay-off was ordered by Edler when he was informed by Snyder that
the_warps on Snyder's looms had "run-out." In response to Edler's
statement that he was laid off "until we put warps back in your
looms," Snyder appealed for a transfer to another floor in the plant,
claiming seniority over certain employees on that floor. Although
it is shown in the record that this practice had been followed, to some
extent, before the strike, Edler refused to grant Snyder's request.
About an hour later, Snyder again saw Edler and said that he under-
stood that a, married woman and a single girl had been so transferred
during the previous week. Edler explained, according to Snyder,
that the married woman's assignment was temporary but made no
explanation concerning the transfer of the single girl. In conclusion,
although Snyder made reference to the fact that married men had
before been given priority of employment, Edler stated that he was
carrying out Phillips' orders in laying him off.
2 Ruth Bower , see below.
THE HOLMES SILK COMPANY 105
Three days after the lay-off Snyder returned to the plant to obtain
a temporary severance slip necessary to his employment on a work-
relief project, and saw Phillips. Phillips, in response to Snyder's
question, stated that it "would be difficult to say" when Snyder
would be reinstated, and, evading Snyder's questions as to seniority
said , "When we put your looms back we will call you." Although it is
und'enied that Snyder's looms were subsequently operated,27 Snyder
was never recalled between the date of this lay-off and the date of
the hearing.
Snyder testified that after he was laid off, the respondent retained
numerous employees junior to him in point of seniority, naming among
others two married men, Aaron Shirn and Sheldon (Lew) Laylon.
Shirn, as indicated in the preceding footnote, had been first employed
by the respondent in 1917, although he had been subsequently laid
off for an undisclosed period because of poor workmanship. Phillips
testified that Laylon, hired some 2 months before the strike was not
in the respondent's employ at the time of the hearing, but did not
'disclose the date of his lay-off. Since the respondent introduced only
one pay roll, that of the period immediately preceding the strike, we
are unable to determine how long Laylon continued in the respon-
dent's employ after the strike. In accordance with our previous dis-
cussion as to the procedure followed in lay-offs of permitting em-
ployees to work until their looms "ran out," and the lack of informa-
tion concerning the date of Laylon's subsequent lay-off, we therefore
find no indicia of discrimination in the retention of Shirn or Laylon.
Snyder also named five single men who were retained at the time
of his lay-off: Carl White, Ken Edler, Jack Johnson, Mason (Red)
Larson, and an unidentifiable "Smith." Phillips testified that Larson
had been laid off, although not specifying the date upon which it
occurred. There is an indication in, the record, however, that Larson's
lay-off came long after Snyder's. In the undenied testimony of Oak
Bierly, hereinafter discussed, Larson is named as having been re-
tained after Bierly's first lay-off on April 13, 1938, and again after
Bierly's lay-off on April 11, 1939. While the retention of Kenneth
Edler, son of Snyder's foreman, might possibly be regarded as nepo-
tism, we find from Phillips' testimony that Johnson; laid off approxi-
mately at the same time as Snyder, was later recalled, and that White
was not laid off until April 1939, and that he, too, was subsequently
recalled.
By similar processes we find that of the nine married women named
by Snyder as junior to him who were retained by the respondent after
Y7 At one time these looms were operated by Aaron Shirn, an employee first employed by the respondent
in 1917, but subsequently laid off for an undisclosed period for poor workmanship . In view of Shire's record,
we cannot believe that this employee could have been preferred to Snyder in the handling of "light shades,"
which Phillips claimed he "would not dare" entrust to Snyder Moreover , as found in the text immediately
, below, employees junior to Snyder were retained after his lay -off and were also reinstated subsequent thereto.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his lay-off, four , Severson , Rudinsky , Schaffer (Schaeffer), and Weber,
were either retained for long periods or recalled after lay-offs occurring
(luring the period of Snyder's unemployment. Of the remaining five,
one, Mrs. Solcy, was laid off at the approximate time of Snyder's
lay-off and was not recalled , one, Mrs. Auchmutty , although retained,
was characterized by Phillips as "a darned good weaver ," and the
remaining three were retained because of what Phillips termed the
"human situation ." While these three women 28 all had dependents,
it may be noted that at the time of the strike the respondent employed
three members of the Snyder family, and that the respondent,
having failed to recall his sister, Lena, after the strike , and hav-
ing laid off his wife, Helen, prior to laying off Snyder himself, might
well have retained Snyder himself under "the human situation," es-
pecially in view of Snyder's three minor children.
Although, as above stated , both Phillips and Edler had promised
to recall Snyder when his looms were placed in operation , this call
never came. When asked the reason for the non -recall of Snyder and
his wife, Phillips replied, "Because , if Mr. and Mrs . Snyder wanted
the jobs, why didn't they come and ask for the job the same as anyone
else?" This is an untenable evasion. The record shows in instances
too many for enumeration that the respondent notified laid-off em-
ployees to return to work by messages sent by fellow employees resid-
ing near them or by telephone . It was well within Phillips' knowledge
that Snyder lived near employees who could have conveyed such a
message to him.
We have found that the respondent , in derogation of its policy of
retaining married men longest in its employ, and of observing, other
factors being equal, seniority in point of service, retained or recalled
without stated reason Larson , Johnson, White , Severson , Rudinsky,
Schaeffer , and Weber after Snyder 's lay-off. This fact , together with
the evasive reason given by Phillips for the non-recall of Snyder,
leads us to the conclusion that the respondent , aware of and opposed
to Snyder 's union activity , refused and has continued to refuse to
reinstate Snyder because of such activity.
We find that the respondent, by laying off Chester Snyder on
January 14 , 1938, has discriminated with regard to his hire and tenure
of employment , thereby discouraging membership in the Union. We
further find that by such lay-off, the respondent has interfered with,
restrained , and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
The record shows that subsequent to Snyder 's lay-off on January
14, 1938, he earned $227 . 03 in work on a temporary highway construc-
tion project. He also received during his lay -off $100 in unemploy-
ment insurance . On February 4, 1939, he addressed a letter to the
2 Kissell , Dunkleherger , and White.
THE HOLMla;S SILK COMPANY 107
respondent requesting reinstatement to his former position. At the
time of the hearing, Snyder desired reinstatement.
Helen Snyder,29 wife of Chester Snyder, was duly reinstated after
the termination of the strike. On November 1, 1937, Mrs. Snyder
was laid off by the respondent. Thereafter, on December 28, 1937,
Mrs. Snyder was reinstated but for less than a fortnight, being again
laid off on January 8, 1938. This second lay-off was still in effect
at the time of the hearing. Like her husband, Mrs. Snyder, a weaver,
was active in union affairs . She had refused to sign the shop-plan
petition and had engaged in picketing during the strike. At the time
of her lay-off, Mrs. Snyder requested that she be transferred to other
looms, and . claimed seniority over other employees still retained by
the respondent. In her testimony concerning employees junior to
her in point of service, she named the following married women-
White, Rudinsky, Soley, O'Neil, Kissell, Dunkleberger, Weber, and
Singer. We have had occasion to examine the status of these em-
ployees in a discussion concerning Chester Snyder. White, Dunkle-
berger, and Kissell were retained by Phillips within the scope of what
he termed "the human situation.". Mrs. Soley, as we have above
found, was laid off near the beginning of 1938 and was not thereafter
recalled. We find, however, that Rudinsky, Weber, O'Neil, and
Singer 30 were either retained for long periods after Mrs. Snyder's
lay-off or were recalled prior to the hearing.
The excuse made for Mrs. Snyder's non-recall was identical to the
one alleged in regard to Chester Snyder. As above stated, Phillips
testified that "if Mr. and Mrs. Snyder wanted the jobs, why didn't
they come and ask for the jobs the same as anybody else." As found
above, this is an untenable position.
No valid reason having been alleged for Mrs. Snyder' s non -recall,
and no reason having been given for the retention of the weavers
junior to her in point of service, namely, Rudinsky, O'Neil, Weber,
and Singer, we find, as in the case of her husband, that the respondent,
by laying off Mrs. Chester Snyder on November 1, 1937, and on
January 8, 1938, discriminated with regard to her hire and tenure of
employment, thereby discouraging membership in the Union. We
further find that by ordering the said lay-offs, the respondent inter-
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
In the interval of her first lay-off between November 1, 1937, and
December 28, 1937, Mrs. Snyder was unemployed. After her second
lay-off on January 8, 1938, Mrs . Snyder had received, prior to the
16 Referied to in the complaint and hereinafter as Mrs Chester Snyder
3O Mrs Singer had been employed by the respondent for a period of not over 2 months before Mrs Snyder's
lay-off At the time of her lay-off, Mrs Snyder called attention to the employment status of Mrs Singer
but Edler, who ordered the las-off, evaded this question, and the respondent did not at the hearing allege
any reason for Mrs Singer's retculiou
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing, $80 in unemployment insurance . She was unemployed during
this period . On February 4, 1939, Mrs . Snyder addressed a letter to
the respondent requesting reinstatement to her position , and at the
hearing again expressed her desire for reinstatement.
Sarah Bierly was first employed by the respondent in August 1934.
Bierly, a weaver on the night shift under Edler's foremanship , was laid
off on November 4, 1937, and had not been reinstated at the time of the
hearing. Like the Snyders , Bierly had refused her signature to the
shop-plan petition , had participated in the strike , and had otherwise
engaged actively in the Union 's affairs.
When laid off by Edler , Bierly remonstrated that she was the oldest
woman on the second shift . Edler, however , replied, "I am not doing
the laying off, Mr. Phillips is doing that now." On the following day,
Bierly returned to the plant in order to receive her accrued wages and
interviewed Phillips concerning her lay-off. In response to her re-
iterated claim that she was the oldest woman on, the second shift,
Phillips replied , " Well, seniority rights don ' t go any more here."
Bierly's testimony is undenied and we find that she then accused
Phillips of "having it in for Oak [her husband] and I," and that Phillips
replied, " Well, you didn't walk the picket line for 7 weeks for nothing."
Bierly named five women junior to her in point of service who were
retained by the respondent after her lay-off on November 4, 1937.
Of, these, as we have found above, White and Dunkleberger were
retained by the respondent because they had numerous persons de-
pendent upon their earnings . No reason , however, was given for the
retention of the other three women, Rudinsky, Schaeffer, and Weber.
In the afternoon of the day on which Bierly was laid off, Phillips
called her husband , Oak Bierly , into his office and reprimanded him
for making a complaint to one of the floorladies in the quilling depart-
ment concerning the lay-off of an employee named Josephine Stradley,
a member of the Union. Bierly, a member of the Union's executive
committee , was told that the respondent 's employment policy was
"none of his business." Phillips' father, then the respondent's presi-
dent, accused Bierly of "pushing his way into the plant" after the
strike, and Phillips himself, during the course of his reprimand, threat-
ened Bierly with discharge and informed him that his wife, Sarah
Bierly, would be laid off that night.
While it is strongly suggested in the above undenied testimony that
Sarah Bierly's lay-off was made in consequence of her husband 's union
activity, as well as her own, we find that Phillips' statement, "you
didn't walk the picket line for 7 weeks for nothing ," clearly indicates
the animus which motivated Bierly's lay-off and the failure subse-
quently to reinstate her. We find that the respondent , by laying off
Sarah Bierly on November 4, 1937, and thereafter refusing to reinstate
her, discriminated in regard to her hire and tenure of employment,
THE HOLMES SILK COMPANY 109
thereby discouraging membership in the Union. We further find that
the respondent, by this action, interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed by Section 7 of
the Act.
At the time of her lay-off on November 4, 1937, Sarah Bierly was
earning on the average between $15 and $16 a week. Unemployed
from November 4, 1937, to March 28, 1938, Bierly on the later date
accepted employment at substantially the same compensation at a
textile mill in Montoursville, Pennsylvania. At the time of the hear-
ing Bierly was still employed at the Mountoursville plant, having suf-
fered one lay-off from about May'29, 1938, until about July 11, 1938.
The Trial Examiner in his Intermediate Report found that Sarah
Bierly,- following her lay-off by the respondent, "obtained substan-
tially equivalent . employment at Montoursville, Pennsylvania, in
March, 1938." We are of the opinion that the Trial Examiner's
finding is not supported by the evidence. While in the respondent's
employ Bierly operated only 5 or 6 looms, at Montoursville she was
required to carry a load of 12 looms. The Montoursville plant is
approximately 4 miles from her home, the respondent's plant about 2.
During the greater part of her-lay-off preceding the time of the hearing
her husband was employed by the respondent. While this personal
factor would alone render employment with the respondent more
desirable to her,31 the separation of the Bierlys,'who owned an auto-
mobile, caused them inconvenience and increased transportation
difficulties and expenses. We find that Sarah Bierly did not obtain
substantially equivalent employment following her lay-off by the
respondent on November 4, 1937.32 ,
Oak Bierly was first employed by the respondent as a weaver in
May, 1934 and had been laid off only once, for a short period, before
the strike. On April 13, 1938, Bierly was laid off by Edler. Bierly
complained to Edler that he had seniority over certain other employees
and requested a transfer to other looms. Edler made the sole reply,
"That is my orders." Three days after his lay-off Bierly returned to
the plant, after learning that Mrs. Schaeffer, an employee, had been
placed on the looms which he had been operating. Although Bierly
protested this fact to Phillips, the superintendent made no reply.
At the time of his lay-off the respondent retained Aaron Shim and
Walter Liddick, married men who, Bierly claimed were junior to him
3i'See Mooresville Cotton Mills v. National Labor Relations Board , 94 F. (2d ) 61 (C. C. A. 4), decided March
11, 1940, wherein the Court held that although "primary importance should of course be accorded to a com-
parison of working conditions " that "it would not be reasonable to exclude from consideration all the
personal factors which would influence the worker's choice."
32 Although the Trial Examiner erred in finding that Bierly had obtained substantially equivalent em-
ployment, he recommended , properly we think, that the respondent offer Bierly reinstatement to her
former position . See Matter of Eagle-Picher Mining & Smelting Company , et at., & International Union
of Mine, Mill , & Smelter Workers , Local Nos 15,17, 107,108 and 111, 16 N. L. R. B. 727. See also Continen-
tal Oil Company , a corporation v. National Labor Relations Board, 113 F. (2d) 473 (C. C. A. 10), decided
June 13, 1940.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in point of seniority. As above' stated, Shirn had been first employed
by the respondent in 1917 and subsequently laid off for poor. work-
manship and, as above shown,, Chester Snyder also claimed seniority
over Shirn at the time of Snyder's lay-off. While Snyder's testimony
gives strength to the :claim by Bierly that Shirn had worked less
aggregate time than-had Bierly, We do not find any indicia of discrim-
ination against Bierly in the retention of Shirn. With respect, to
Liddick, Phillips testified that this employee had been' "in and,put"
of the respondent's employ for years.
Bierly claimed seniority over the following single` men retained by
the 'respondent at* 'the time of his lay-off:. Jack Johnson, Rodney
Pennypacker, Mason Larson, Kenneth Edler,,and one "Bill Smith"
who -cannot be identified., ',Johnson, Larson, and Edler have been
above discussed in reference to Chester Snyder; and we there found the
retention of Edler not necessarily significant in the determination of
the question of whether 'Snyder had been discriminatorily laid off.
As above found, however, Johnson, although at one time'laid off,' was
subsequently recalled and was in the respondent's employ, as far as
the record reveals, at the time of the hearing. Since Larson and
Pennypacker were 'retained after Bierly's third lay-off,. below dis-
cussed, in April 1939, we infer 'in, the. -absence, of any evidence to
the contrary, that Larson and Pennypacker'were retained for more
than a year, following.Bierly's lay-off ,on April-] 2,:.1938. -
Married women over wirhom Bierly claimed seniority at the time of
his lay-off. on June' 14, 1938; were: - White, Weber, Rudinsky, Kissell,
Prince,' and Schaeffer. The circumstances surrounding the retention
of each of these employees, with the execution of Prince,33 +have been
above discussed.' We do not regard as 'necessarily significant' 'the
retention of White and Kissell, who were retained, according to
Phillips, because of the "human situation." 34 ' '
On June 3, 1938, Bierly was reinstated in the respondent's employ;
following the - intervention of--a Board agent. On June 1.4, 1938,
Bierly was again laid off but was' again reinstated on July .1, 1938.
Bierly testified without denial.'that'his seniority at' the- time, of his
second lay-off',on June 14,' 1938, was !identical to -hisseniority at 'the
time of his previous lay-off on April 13, 1938. ' -
,On April 11, 1939, Bierly was again laid off, Of the eight employees
over whom Bierly claimed seniority on, this occasion, we regard as
significant the retention of Liddick, Pennypacker, Johnson, and
Rudinsky.35
33 Phillips testified at the hearing that Prince had been recalled following a lay-off, and that she was to
be laid oft again "today "
3+ It may , however, be noted that Bierly , like Snyder , has three minor children
35 On or about May 8, 1939 , Bierly having learned of the reinstatement of two single women , Celia Fields
and Clara Auchmutty, subsequent to his lay-off, called^Edler by telephone Edler made the sole reply,
"Well, you will have to see Willard (Phillips ) about that " ' '
THE HOLMES S1LK COMPANY - Ill' '
Bierly was an.active union member, having served, together with
Chester Snyder, on the Union's executive board. Like Snyder,
Bierly had refused his signature to the shop-plan petition and had
participated in active picketing while on strike. A's stated above in
the discussion concerning his wife, Bierly had been reprimanded by the
respondent for protesting the lay-off of a union member, and at that
time', Bierly was asked by Phillips, "Who do you represent, the
C. I. 0.?" During the course of this reprimand Bierly was not only
told that the respondent's employment policy was "none of his
business" but was threatened with discharge and-was told that his
wife would be laid off' on the following night: Although Bierly's
first lay-off was ostensibly made for the reason that his warps "were
running out," it is undenied that within 3 days after his lay-off of
April 13, 1938, an employee junior in service to him, namely, Mrs.
Schaeffer, had been placed in charge of the looms which Bierly operated.
Under these circumstances, and in view' of the, retention of Johnson,
Pennypacker, Rudinsky, Weber, Prince, and Auchmutty, we find that
the respondent by laying off Oak Bierly on April 13, 1938; discriminated
with regard to his hire and tenure of employment, thereby discouraging
membership in the Union. Since similar conditions of seniority pre-
vailed at the time of Bierly's second lay-off on June 14, 1938; we find
that the respondent, by laying off Oak Bierly on that date also dis-
criminated in regard to his .hire and tenure of employment, and
thereby discouraged membership in the Union. The retention of
Johnson, Pennypacker; and Rudinsky, following Bierly's third lay-off
on April 11, 1939, is unexplained in the record. We find, therefore,
that -the respondent, by laying' off Oak Bierly on April 11, 1939,
discriminated with regard to his hire and tenure of employment,
thereby discouraging membership in the Union, `and thereby inter=
fering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 oft the Act.'
Gilbert Bower was first employed by the respondent-in' 1933, after.
23 years' previous experience in the textile weaving trade. , With the
exception of one short lay-off, due to slack business, in the first year-
of his employment, Bower had-worke'd steadily for the respondent
until the strike,, and thereafter until. he-was' laid off by Edler on April'
10, 1939.
Bower was one of the first • employees -to' join the Union. Ile'
participated in the strike, and appeared on the picket line six or eight
times. 'Thereafter, like the Snyders' and Bierlys, he retained member-'
ship in the Union in preference'to the 'Association.
Prior to'his lay-off, a conference took place on February 4, 1939, at
the Lycoming Hotel in Williamsport,' which 'was attended by repre-
sentatives of the Board, the Union, the respondent, and by certain
of the employees named in the complaint, including Ruth Bower, the
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wife of Gilbert Bower. At this conference- certain of the lay-offs
which were in part responsible for the issuance of the complaint in
this proceeding were discussed. Among-others, the preceding lay-
offs of Bower's wife, Ruth, were in issue.; On the day following the
conference, Phillips summoned Bower in to his office to inquire whether
it was true, as Phillips claimed to have been informed, that Ruth
Bower, on the occasion of one of her lay-offs, had told another quiller,
one Catherine McCoy, that she was glad that she had been laid off-
instead of Catherine McCoy. Phillips, told Bower that "Your wife
was down to the hearing [the conference] yesterday fighting for her
job," and ordered Bower to ascertain whether his wife had made the
alleged statement to McCoy. Bower thereafter consulted his wife
and returned to Phillips to inform him that his wife denied having
made this statement. Phillips, unsatisfied,- then summoned McCoy,
but McCoy also denied that Ruth Bower had told her she was "glad"
that it was she who had been laid off. Despite this denial, Phillips
insisted, "Well, that is just the term she used," and then, turning on
Bower, informed him that "From now" on we are going to take care
of Williamsport people . . . You and Snyder, you run around
together, you carry all the news all the time."
While the latter, accusation is somewhat ambiguous, it is clear that
the only objection Phillips could have had to Bower's association
with Snyder was the fact that Snyder was a union leader. Phillips'
assertion that the respondent was-going to "take care of Williamsport
people" from then on, made to Bower in contradiction of his previous
policy, was clearly directed against Bower, who was a non-resident.3s
Bower, aware of Phillips' hostility to him, stated, "I know I am getting
blamed for (my wife's) filing these charges (of discrimination)," and
in reply was told, "You were the one that caused her to -go down
there."
On April 10, 1939, the looms which Bower operated became depleted
and Bower was laid off by Edler. Since the process of "running out"
the warps on the looms took in some instances up to 6 weeks or more,
it is probable, in view of the testimony above, that this was the first
occasion which presented itself for laying off Bower under color of
having no available work for him. We are convinced, however, and
find that Bower was laid off because of his active union membership,
his association with Chester Snyder, and because of Phillips' con-
viction that Bower was responsible for the filing of charges by his
wife. It is also suggested by Phillips' accusation that Bower "carried
all the news all the time," that Phillips regarded Bower as a ,union
liaison contact, who kept the laid-off union members informed,of
developments at the respondent's plant.
as Bower resided at Jersey Shore, Pennsylvania, some 18 miles from Williamsport The Snyders were
also Jersey Shore residents
THE HOLMES SILK COMPANY 113
We think it unnecessary in Bower's case to undertake an exhaustive
analysis of his seniority rights. Bower testified without denial, and
we find, that Bower was the oldest weaver in point of service on the
night shift. Since transfers were rarely if ever made from one shift
to another, and since the respondent continued to operate a night
shift up until the time of the hearing, we find that Bower, a married
man, was laid off for reasons made apparent above and in derogation
of the respondent's policy of seniority. Any claim that Bower was
laid off because of his non-residence in Williamsport is specifically
refuted by Phillips' own testimony."
We find that the respondent, by laying off Gilbert Bower on April
10, 1939, discriminated in regard to his hire and tenure of employment,
thereby discouraging membership in the Union. We further find that
the respondent by this act interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
Ruth Bower, unlike the employees heretofore discussed, was em-
ployed by the respondent as a quiller operator. Bower had had 4
years' experience in this work before entering the respondent's employ
in July •1935: Thereafter with the exception of lay-offs due to slack
business she worked until the strike began. On,the first day of the
strike Bower entered the respondent's plant and attempted to per-
suade other women in the respondent's employ to join the strike.
On the same day Ludwig, the foreman of the quillers, informed Bower
that she need not be troubled by the fact that the employees, with
whom she normally drove to work were all on strike. Ludwig
promised, in respect to the transportation of employees to and from
the respondent's plant, that "We will take care of the ones that
work." ' Bower, nevertheless, went on strike the day following this
conversation and remained away from the respondent's plant for the
duration of the strike.
Reinstated on or about October 4, 1937, in accordance with the
strike settlement terms, Bower retained employment with the re-
spondent only until October 21, 1937, on which date she was laid off
by Ludwig. Bower, when ilformed of her lay-off, inquired of Lud-
wig, "Why me, when you have these other girls in here?"-girls who,
according to Bower, were junior to her in point of seniority. At the
hearing Bower testified that Ludwig "couldn't tell me just exactly
why, he didn't give no reason," but that Ludwig finally said, "Be-
cause you didn't join the company union." Ludwig was not called as a
witness at the hearing and consequently Bower's testimony is un-
refuted.
We have heretofore found that the respondent observed a rule
of seniority among weavers which rendered married women liable to
u See footnote 21, supra, and the text therein annotated.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lay-off before either single women and men employees. Bower's
testimony was undenied, however, that married women and single
worneu were considered together for the purposes of seniority in the
quilling department. At the time of her lay-off on October 21, 1937,
Bower testified that the following women junior to her in point of
'service, were retained in the respondent's employ: Marie Kane,
Agnes Tacka, Catherine McCoy, and-Claire Meyer.18
Although Ludwig had promised Bower that her lay-off on October
21, 1937, "would extend for only a couple of days," Bower was not
reinstated until November 8, 1938. On January 12, 1939, Ludwig
again laid off Bower, but retained at this time, according to Bower,
the following employees junior to her in point of seniority: Agnes
Tacka, Marie Kane, and Catherine McCoy. Although Bower pro-
,tested this fact to Ludwig, he was unable to advance any reason for
Bower's lay-off. Subsequently Bower interviewed Phillips, inquiring,
"Why I was always laid off out of my turn." Bower testified that
Phillips in reply stated that he had not been informed of Bower's
lay-off and inquired whether "there were any girls in here younger than
you." Upon being informed that there were, Phillips, according to
Bower, called Ludwig into the office and permitted Bower to question
Ludwig as to the reasons for her lay-off. Bower testified:
I asked him, and he stated that the cotton was running out
and there was to be some more girls laid off and I said', "Why
always pick on me." . . . He really couldn't give me no reason
just why I was laid off out of my turn.
Bower's lay-off of January 12, 1939, was still in effect at the time of
the hearing.
The respondent did not specifically deny Bower's testimony con-
cerning the seniority rules applicable to quillers, and introduced no
evidence concerning the employment records of the quillers named by
Bower as junior to her in point of seniority. At the hearing, however,
the respondent introduced in evidence a list of quillers, in which such
employees were divided, into "regular" and "extra" classifications.
Phillips testified in effect that the list- of "extra quillers," in which
Bower's name appears, was maintained for the use of the quiller
foremen, and was consulted by them whenever a temporary increase
in the number, of quillers became necessary. It is the respondent's
contention that Bower, being,an extra quiller, was laid off, reinstated,
and again laid off in due order. We cannot accept this contention.
In'the list submitted in evidence there appears the name of Eleanor
Hamilton. it is admitted that this quiller was hired by the respond-
ent after Bower's lay-off of October 21, 1937; and it is therefore
,apparent that the list in,question was not dtawn up until after that
se On the respondent's pay roll of August 7, 1937, the name of Claire Meyer does not appear, although the
name of Claire Miller is present.
THE 1HOLMES, S1LK COMPANY .115
lay-off-111 Moreover, as before found, Bower had demanded the reason
for her lay-offs "out of. turn" on October 21, 1937, and again on Jan=
nary 12, 1939, but'had received no satisfactory answer. There is no
apparent reason why, Ludwig or Phillips did not inform her on those
occasions that the respondent considered her as an extra quiller if such
a classification then obtained.
Irrespective of our-belief that the practice of dividing quillers into
regular and extra classifications-was begun, if at all , following Bower's
two lay-offs, we find that this contention is immaterial to the issue of
discrimination for the reason that the women named in Bower's
undisputed testimony as junior .to her in point of service are likewise
classified in the respondent's list as extra quillers. In the absence of
tiny evidence to the contrary, we find that the respondent retained
Marie Kane, Agnes Tacka, and Catherine McCoy after Bower's two
lay-offs in derogation of its policy of seniority; and it will be noted
that Phillips, after her second lay-off,,, specifically inquired whether
"there were any girls in here younger than you," but•upon being in-
formed that there were, simply referred the question to Ludwig.
The reason for Ludwig's action in laying off Bower, and in retaining
Tacka, McCoy, and Kane, appears only in his alleged statement to
Bower that "you failed to join the'Company Union." In the absence
of any denial of this statement, we find that the statement was made
and that the respondent, through Ludwig, twice retained T tcka,
McCoy, and Kane when laying off Bower, for the reason that Bower
had been and remained an active member'of the Union.4o
We find that the respondent by laying off Ruth Bower on October
21, 1937, and again on January 12, 1939 , discriminated-in regard
to her hire and tenure of employment, thereby discouraging member-
ship in the Union, and thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
C. The refusal to reinstate Lena Snyder,
Lena Snyder, the sister of 6liester Snyder, was never recalled
following her participation in the strike. Reference has already been
made to a conflict in testimony between Phillips and Chester Snyder
concerning the exact terms of the agreement which brought the strike
to a close. Phillips testified, and his testimony was not disputed,
that the respondent employed 25 fewer persons on the date of the
termination of the strife than it had when the strike began on August,
J9 Mis Hamilton had been employed by the iespundent ui 19.36 as an uuuia,ued woman She quit 'a of k
during that year to be married, and was reemployed a } ear and a half later under the name of 11amndton
40 it was testified that McCoy, although at one time a member of the Union, had returned to Rork during
the course of the Union's strike Neither Tacka nor Kane were union members
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
12, 1937,41 and it is apparent from the record that the respondent's
business, on the whole and with fluctuations, declined after that date.
Under these circumstances we do not find that the respondent
discriminated against Lena Snyder by its refusal to offer her rein-
statement. Snyder's employment with the respondent aggregated
not over 5 months, and she had been laid off prior to the strike for a
considerable period of time. Assuming, without finding, that
Phillips made an absolute guarantee to the strikers of reemployment
within 10 days after the strike was to be ended, we believe, in view
of the respondent's policy of seniority, that Snyder if reinstated
could have retained employment for a few days at best. We cannot
find under such circumstances that the respondent, even though it
breached its agreement by failing to recall Snyder, thereby discrimi-
nated in regard to her hire and tenure of employment because of her
union membership and activity. Accordingly, the allegation in the
complaint charging the respondent with such discrimination in respect
to Lena Snyder will be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III A and B above; occurring in connection with the operations of the
respondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act and to restore as nearly as possible the condition which existed
prior to the commission of the unfair labor-practices.
We have found that the respondent has dominated and interfered
with the formation and administration of the Association and has con-
tributed support to it. In order to effectuate the policies of the Act and
to free the employees of the respondent from such domination and
interference, we shall order the respondent to withdraw all recognition
from the Association as the representative of any of the respondent's
employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
and other conditions of employment, and to completely disestablish
41 The respondent 's pay roll as of August 7, 5 days before the strike was begun, contained the names of
189 employees.
THE HOLMES SILK COMPANY 117
it as such representative.42 Since the contract between the respond-
ent and the Association embodying recognition of the Association
as such representative was entered into with an organization brought
into existence by the unfair labor practices of the respondent,
we shall order the respondent to cease and desist from giving ef-
fect to the contract heretofore described or any extension or renewal
thereof or any other agreement it may have entered into with the said
Association in respect to wages, hours of employment, or other con-
ditions of employment.43 The contract of November 8, 1937, entered
into between the Association and the Union provided for a check-off,
and the respondent has deducted from the wages of, those employees
who were members of the Association dues for the Association. We
shall order the respondent to reimburse the employees who were
members of the Association for dues and assessments, if any, which
the respondent has deducted from their wages on behalf of the Asso-
elation.44
We have found that the respondent has discriminated in regard
to the hire and tenure of employment of Chester Snyder, Mrs. Chester
Snyder, Oak Bierly, Sarah Bierly, Gilbert Bower, and Ruth Bower by
laying them off between or on the dates specified. We shall, accord-
ingly, order the respondent to offer each of the said employees im-
mediate and full reinstatement to their former 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 the respondent's discrimination against them, by payment to each
of them of a sum equal to the amount which each normally would have
earned as wages, during the periods of such lay-offs, as follows: Mrs.
Chester Snyder, from November 1, 1937, to December 27, 1937, and
from January 8, 1938, to the date of the offer of reinstatement; Oak
Bierly, from April 13, 1938, to June 3, 1938, from June 14, 1938, to
July 5, 1938, and from April 11, 1939, to the date of the offer of rein-
statement; Chester Snyder from January 14, 1938, to the date of the
offer of reinstatement; Gilbert Bower from April 10, 1939, to the date
of the offer of reinstatement; and Ruth Bower from October 21, 1937,
42 See Consolidated Edison Co. v National Labor Relations Board , 305 U. S 197, 236, National Labor Relations
Board v Pennsylvania Greyhound Lines, Inc , et al , 303 U S 261, National Labor Relations Board v. Pacific
Greyhound Lines, Inc , 303 U. S. 372, National Labor Relations Board v Fansteel Metallurgical Corporation,
306 U S 240, Newport News Shipbuilding & Dry Dock Co , et al. v National Labor Relations Board, 60 Sup
Ct. 203, National Labor Relations Board v. The Falk Corporation, 60 Sup Ct 307 (1940).
43 National Labor Relations Board v Stackpole Carbon Company, 105 F (2d) 167 (C C A. 3), Dow Chemical
Company and United Mine Workers of America, District No 50, 13 N L R B 993
44 Sec Matter of Heller Brothers Company of Newcomerstown and International Brotherhood of Blacksmiths,
Drop Forgers, and Helpers, 7 N L R B 646, !flatter of West Kentucky Coal Company and United Mine
Workers of America, District No 23. 10 N L. R B 88, Matter of Mt. Vernon Car Manufacturing Company, a
corporation and Local Lodge No 1756, Amalgamated Association of Iron, Steel & Tin Workers of North America,
affiliated with the Committee for Industrial Organization, 11 N L R B 500, Matter of The Western Union
Telegraph Company, a corporation and American Communications Association, 17 N. L. R B. 34, A E'
Staley Manufacturing Company, a corporation and United Grain Processors , Local 21490, affiliated with the
American Federation of Labor, 22 N L R B 663.
323429-42-vol. 26 9
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to November 8, 1938, and from January 12, 1939, to the date of the
offer of reinstatement , less in each case, his or her net earnings 45
during said periods.
The respondent alleges, with respect to Sarah Bierly, herein found
to have been discriminatorily laid off on November 4, 1937, that it
offered this employee reinstatement to her former position during
the month of October 1938, and that Bierly refused this offer. Phil-
lips testified that he had summoned Bierly to the plant following a
conference with an agent of the Board, who is alleged to have stated
that charges previously filed with the Board in respect to Bierly's lay-
off might be dismissed should Phillips offer her reinstatement.
Bierly reported to Phillips when informed by her husband, who
was then in the respondent's employ, that Phillips wanted to see her.
She testified that she went with the expectation of being offered her
former position, but that Phillips instead told her that no looms were
available at that time. Bierly testified and Phillips admitted that,
in the course of this interview, Phillips questioned Bierly as to her
employment at Montoursville, advising her to remain there. Bierly
replied, however, "Well, you send for me when you want me." Phil-
lips, according to Bierly, then promised that he would do so, although
this promise was never fulfilled.
In view of the alacrity with which Bierly responded to Phillips'
invitation to confer with him, in view of the greater work require-
ments at the Montoursville plant, its further distance from her home,
and the fact that her husband was then in the respondent's employ,46
we are unable to believe that Bierly refused an offer of reinstatement
to her former position. We are of the opinion and find that Phillips
45 By "net earnings" is meant earnings less expenses , such as for transportation , room, and board , incurred
by an employee in connection with obtaining work elsewhere than for the respondent , which would not
have been incurred but for his unlawful discharge and the consequent necessity of his obtaining employ-
ment 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 B 440 Direct relief or home -relief
payments are not to be considered as "earnings" and hence are not deductible . Matter of Vegetable Oil
Products Company, Inc , a Corporation and Soap and Edible Oil Workers Union , Local No . 18409, 5 N L R. B.
52, amending 1 N L R B 989 Unemployment compensation benefits are similar in purpose and effect
to home-relief payment, and , therefore , are not deductible . Matter of Pennsylvania Furnace and Iron
Company and Lodge No. 1328, International Association of Machinists , 13 N. L. R B 49. The same is true
of relief payments received from a union Matter of Missouri -Arkansas Coach Lines , Inc. and Brotherhood
of Railroad Trainmen , 7 N L. R B 186 , Matter of West Kentucky Coal Company and United Mine Workers
of America , District No . 23, 10 N. L R B 88. Nor are monies received as disability compensation from the
Veterans Administration of the United States Government to be considered "earnings" and deductible.
Cf Matter of Louis Hornick & Company, Inc . and Textile Trimming Workers Union , Local 2440 , United
Textile Workers of America , 2 N. L. R . B 983 , Matter of Anwelt Shoe Manufacturing Company and Shoe
Workers' Protective Union, Local No. 80, 1 N . L. R. B. 939. Monies received for work performed upon
Federal, State , county, municipal , or other work -relief projects are not to be considered as earnings, but,
as provided below in the Order, shall be deducted from the sums due each of the employees herein, 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. Republic
Steel Corporation , et. al v. National Labor Relations Board, 107 F. (2d) 472, (C. C A. 3) cert granted as to
this point , 60 Sup. 1072 , enforcing as modified as to other issues Matter of Republic Steel Corporation and
Steel Workers ' Organizing Committee , 9 N. L. R. B. 219.
44 These factors are considered in Section III B above in relation to the issue of substantially equivalent
employment therein discussed.
THE HOLMES SILK COMPANY •119
either failed to offer her reinstatement or so clouded his offer with
advice to retain employment at Montoursville that Bierly did not
understand that an offer was being made. Having discriminatorily
laid off Bierly, it was incumbent upon the respondent to offer her
full and unequivocal reinstatement to her former position. We find
that the respondent has not done so, and, accordingly, we shall order
the respondent to offer her immediate and full reinstatement to her
former position, without prejudice to her seniority and other rights
and privileges, and to make her whole for any loss of pay she may
have suffered from November 4, 1937, the date upon which she was
discriminatorily laid off, to the date of the offer of reinstatement, less
her net earnings 47 during said period.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Textile Workers Union of America and Newberry Textile Work-
ers' Association are labor organizations within the meaning of Section
2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of, and by contributing support to, Newberry Textile Work-
ers' Association, the respondent has engaged in 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 conditions of employment of Chester Snyder, Mrs. Chester Snyder,
Oak Bierly, Sarah Bierly, Gilbert Bower, and Ruth Bower, thereby
discouraging membership in the Textile Workers Union of America,
the respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices
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.
6. The respondent has not discriminated in regard to the hire and
tenure of employment of Lena Snyder within the meaning of Section 8
(3) of the Act. -
47 The Trial Examiner found that Sarah Bierly had secured substantially equivalent employment at
Montoursville , Pennsylvania He recommended in his Intermediate Report that the respondent offer
Bierly immediate and full reinstatement and back pay from the date of the discriminatory lay-off . As stated
above, we do not agree with the Trial Examiner 's conclusion that Sarah Bierly secured substantially equiv-
alent , employment . Since the Trial Examiner recommended that Sarah Bierly be offered reinstatement with
back pay, the respondent has not been prejudiced by the Examiner 's finding and , accordingly, we shall order
that she be made whole from the date of the respondent 's discrimination against her to the date of the offer
of reinstatement. Cf. Matter of Virginia Electric & Power Company and Transport Workers Union of Amer-
ica, 20 N. L. R. B. 911.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, The Holmes Silk Company, and its officers, agents, succes-
sors, and assigns shall:
1. Cease and desist from:
(a) In any manner dominating or interfering with the administra-
tion of Newberry Textile Workers' Association, or the formation
or administration of any other labor organization of its employees, or
contributing support to Newberry Textile Workers' Association or any
other labor organization of its employees;
(b) In any manner giving effect to its contract heretofore described
with Newberry Textile Workers' Association, or to any extension,
renewal, modification, or supplement thereof, or to any successor
contract with Newberry Textile Workers' Association which may
now be in force;
(c) Discouraging membership in Textile Workers Union of America
or any other labor organization of its employees, or encouraging mem-
bership in Newberry Textile Workers' Association, or any other labor
organization of its employees, by discharging, laying off, or refusing
to reinstate any of its employees, or in any other manner discriminating
in regard to their hire and tenure of employment;
(d) 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, or to engage in concerted
activities for the purposes of collective bargaining and other mutual aid
or protection as guaranteed in Section 7 of the National Labor Rela-
tions Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Withdraw all recognition from Newberry Textile Workers'
Association 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 em-
ployment, and completely disestablish Newberry Textile Workers'
Association as such representative;
(b) Refund to each employee from whose wages it deducted or
checked off dues in the Newberry Textile Workers' Association the
amount of such check-offs;
(c) Offer to Chester Snyder, Mrs. Chester Snyder, Oak Bierly,
Sarah Bierly, Gilbert Bower, and Ruth Bower immediate and full
reinstatement to their former positions without prejudice to their
seniority and other rights and privileges;
THE HOLMES SILK COMPANY 121
(d) Make whole the following employees for any loss of pay they
may have suffered by reason of the respondent's discrimination in
regard to their hire and tenure of employment by payment to, each
of them of a sum of money equal to that which he or she would have
earned as wages during the following periods:
Mrs. Chester Snyder, from November 1 to December 27,'1937,
and from January 8, 1938, to the date of the offer of reinstate-
ment;
Oak Bierly, from April 13 to June 3, 1938, from June 14 to
July 5, 1938, and from April 11, 1939, to the date of the offer of
reinstatement;
Chester Snyder, from January 14, 1938, to the date of the offer
of reinstatement;
Gilbert Bower, from April 10, 1939, to the date of the offer of
reinstatement;
Ruth Bower, from October 21, 1937, to November 8, 1938, and
from January 12, 1939, to the date of the offer of reinstatement;
and
Sarah Bierly, from November 4, 1937, to the date of the offer
of reinstatement;
less, in each case, his or her net earnings 48 during such periods;
deducting, however, from the amount otherwise due each of them,
monies received by each of them during said periods for work per-
formed upon Federal, State, county, municipal, or other work-relief
projects during the period for which back pay is due them under this
Order, and pay any such amount deducted to the appropriate fiscal
agency of the Federal, State, county, municipal or other government
or governments which supplied the funds for such work-relief projects;
(e) Post immediately in conspicuous places at its plant, and main-
tain for a period of at least sixty (60) consecutive days from the date
of posting, 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), (b), (c), and (d) of this Order; (2) that the
respondent will take the affirmative action set forth in paragraphs 2
(a), (b), (c), and (d) of this Order; and (3) that the respondent's
employees are free to become or to remain members of Textile Work-
ers Union of America, and that the respondent will not discriminate
against any employee because of membership or activity in that
organization;
(f) Notify the Regional Director for the Fourth Region, in writing,
within ten (10) days from the date of this Order, what steps the re-
spondent has taken to comply herewith.
48 See footnote 45, supra
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AND IT IS FURTHER ORDERED that the complaint be, and it hereby
is, dismissed in so far as it alleges that the respondent has discriminated
in regard to the hire and tenure of employment of Lena Snyder,
within the meaning of Section 8 (3) of the Act.
MR. WILLIAM M. LEISERSON took no part in the consideration Of
the above Decision and Order.