Western Felt Works, a Corporation

National Labor Relations Board - Board Decisions

Dec 9, 1938

10 N.L.R.B. 407 (N.L.R.B. 1938)

In the Matter of WESTERN FELT WORKS, A CORPORATION and TEXTILE
WORKERS ORGANIZING COMMITTEE, WESTERN FELT LOCAL
Case No. C-490.Decided December 9, 1938
Felt and Felt Products Manufacturing Company-Interference, Restraint, and
Coercion: publication and posting of "loyalty" statements; expressed opposition
to "outside" labor organization ; discrediting union and union leaders ; pursuad-
ing employees to refrain from joining an "outside" labor organization ; effort to
break strike by soliciting or inducing individual strikers to return to work ;
election to determine employees' choice of representative ; employment of
strikebreakers ; discrimination in favor of company-dominated union; advising
employees to join a particular labor organization ; assisting formation of such
organization-Company-Dominated Union: domination of and interference with
formation and administration; support; use of by employer as bulwark against
"outside" unionization ; urging employees to form inside labor organization ; en-
couragement of inside organization by discouragement of other labor organiza-
tion ; participation by supervisory employees ; disestablished, as agency for
collective bargaining-Discrimination: denial of reinstatement following strike;
retention of strikebreakers; refusal to reinstate because of union activity:
employment of new persons after settlement of the strike ; lay-offs ; discharges ;
charges of, not sustained as to one person-Reinstatement Ordered: employees
laid off, discharged, and refused reinstatement; employees temporarily laid off
at time of strike ; employees not testifying ; application for reinstatement' not
prerequisite to order requiring, in view of employer's conduct; special forms
of : alternative basis for ; displacement of employees newly hired after com-
mencement of strike ; preferential list, to be followed in further reinstatement ;
seniority status, restored to striking and reinstated employees-Back Pay:
awarded, to employees laid off, discharged, and refused reinstatement, from
date of lay-off, discharge, or refusal to reinstate to date of offer of rein-
statement, not to include period between service of Intermediate Report and
date of Decision in case of employees as to whom Trial Examiner recommended
dismissal of complaint; from date of refusal to reinstate to date of obtaining
other employment, in case of one employee; from date of refusal to reinstate
in case of employees laid off before commencement, of strike; monies received
by employees for work performed upon Federal, State, county, municipal, or
other work-relief projects to be deducted and paid over to agency which sup-
plied funds for said projects-Unit Appropriate for Collective Bargaining:
production and maintenance employees, excluding supervisory and office clerical
employees, salesmen, chemists, technical engineers, draftsmen, and truck
drivers; community of interest, agreement as to-Representatives: proof of
choice : application cards ; employer-held eleetion-Collective Bargaining:
refusal to enter into any agreement, either oral or in writing; refusal to recog-
nize representative as exclusive bargaining agency ; negotiation in good faith ;
dilatory and evasive tactics ; meeting with representatives but with no bona
fide intent to reach an agreement; failure to offer counterproposals; refusal
to embody understandings, if reached, in a signed agreement ; special forms of
remedial orders ; enter into a signed agreement, if understanding is reached ;
10 N. L R. B., No. 31. -
407
408 NATIONAL LABOR RELATIONS BOARD
recognition as exclusive representative ; negotiation ; posting of notices that em-
ployees are free to remain or become members of the exclusive bargaining
agency and that respondent will not discriminate against employees 'doing so-
Strike: result of employer's unfair labor practices.
Mr. I. S. Dorfman, for the Board.
Winston, Strawn cfi Shaw, by Mr. John f Black and Mr. Robert
Tieken, of Chicago, Ill., for the respondent.
Mr. Leon M. Despres, of Chicago, Ill., for the T. W. O. C.
Olis, Vasalle c6 Lapinskas, by Mr. R. A. Vasalle, for the Inde-
pendent.
Mr. Wallace M. Cohen, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge and amended charges duly filed by Textile Workers
Organizing Committee, herein called the T. W. O. C., the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Thirteenth Region (Chicago, Illinois), issued its
complaint dated December 7, 1937, and its amended complaint dated
December 10, 1937, against Western Felt Works, Chicago, Illinois,
herein called the respondent, alleging that the respondent had en-
gaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1), (2), ,(3), and (5) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. A
copy of the complaint, accompanied by notice of hearing, was duly
served upon the respondent, and copies of the amended complaint,
accompanied by notice of hearing, were duly served upon the re-
spondent and the Independent Union of Western Felt Workers.
herein called the Independent.
In respect to the unfair labor practices the amended complaint
alleged in substance that on May 26, 1937, and at all times thereafter,
the T. W. O. C. represented a majority of the respondent's employees
in an appropriate unit; that the respondent,, by refusing to bargain
with the T. W. O. C. as the exclusive representative of the respond-
ent's' employees, stating that it would bargain with the T. W. O. C.
only as the representative of those employees specifically designating
the T. W. O. C. as their representative, and by refusing to enter into
an agreement with the T. W. O. C., regardless of terms, had refused'
and was refusing to bargain collectively with the T. W. O. C.; that
the respondent's refusal to bargain caused the employees of the re-
spondent to go out on strike on June 8, 1937, and remain out until
July 30, 1937; that the respondent had discriminatorily refused and
DECISIONS AND ORDERS 409
failed to reinstate to employment certain of its striking employees;
that the respondent had discriminatorily discharged and refused. to
employ certain- employees by reason of their union activities and
their refusal to join the Independent, a labor organization; that the
respondent had initiated, dominated, interfered with, and had con-
tributed support to the Independent; and that the respondent had
urged and warned its employees to refrain from joining or retaining
membership in the T. W. O. C. and was continuing to do so. On De-
cember 13, 1937, the respondent filed a motion to dismiss the com-
plaint for want of jurisdiction and at the same time filed an answer
admitting certain allegations of the amended complaint as to the
nature of its business, but denying the alleged unfair practices. More
particularly, the answer admitted that on certain dates the respond-
cut was requested to bargain collectively, but denied that it had
refused to do so and further denied that under the law it is or was
required to enter into an agreement with the persons with whom it
bargained. The Independent filed a motion to intervene with the
Regional Director, who granted it on December 21, 1937.
After several postponements, notices of which were duly served
upon the parties, the hearing opened in Chicago, Illinois, on De-
cember 22, 1937, before John A. Lapp, the Trial Examiner duly des-
ignated by the Board. The hearing was closed on January 21, 1938.
The Board, the respondent, the T. W. O. C., and the Independent
were represented by counsel and participated, in the hearing. 'Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
At the close of the hearing, argument was had before the Trial
Examiner.
Before the hearing, the respondent filed a motion to dismiss the
amended complaint for want of jurisdiction. At the close of the
Board's case and again at the end of the hearing, the respondent
moved to dismiss the amended complaint on the further ground that
the Board had failed to prove its case. These motions were denied by
the Trial Examiner. During the course of the hearing, the Trial
Examiner made a number of rulings on objections to the admission
and exclusion of evidence. The Board has reviewed these rulings and
rulings made with respect to the afore-mentioned motions and other
motions made by the parties and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
On March 24, 1938, the Trial Examiner filed his Intermediate Re-
port, copies of which were duly served upon all parties, finding that
the respondent had engaged in unfair labor practices affecting com-
merce within the meaning of Section 8 (1), (3), and (5) and Section
2 (6) and (7) of the Act, and recommending that the respondent cease
and desist therefrom and that certain employees not offered reinstate-
410 NATIONAL LABOR RELATIONS BOARD
ment be restored to their former employment as of August 2, 1937,
with back pay, that certain discharged employees be reinstated as of
the date of discharge with compensation from that date, and that the
respondent proceed to bargain collectively with the T. W. O. C. The
Trial Examiner found that the evidence was insufficient to support
the charge that the respondent had promoted, fostered, and sup-
ported the Independent Union of Western Felt Workers, but made
no recommendation with respect thereto.
Thereafter, the respondent and the T. W. O. C. filed exceptions to
the Intermediate Report and to various rulings of the Trial Exam-
iner. Pursuant to notice, oral argument was had on May 11, 1938,
before the Board in Washington, D. C. The respondent and the
T. W. O. C. were represented by counsel and participated in the argu-
ment. The Board has considered the exceptions of the respondent
and the T. W. O. C. to the findings, conclusions, recommendations,
and rulings of the Trial Examiner, but, save for those exceptions
which are consistent with the findings, conclusions and order set forth
below, we find them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Western Felt Works is an Illinois corporation having its sole man-
ufacturing plant in Chicago, Illinois, and branch sales offices in New
York City; Detroit, Michigan; and Cleveland, Ohio. It is engaged
in the manufacture of felt and felt products which are used princi-
pally in mechanical trades and in clothing, textiles, shoes, automo-
biles, locomotives, farm machinery, tractors, and novelties.
Raw materials, consisting principally of noils, wool, steel, waste,
shoddy, cotton, rags, jute, cattle hair, soap, sizing, chemicals, oils,
dye stuffs, and burlap, are for the most part purchased from dealers'
agents in Chicago, Illinois, but obtained from sources throughout
this country and from foreign countries. The following schedule
shows the origin of the raw materials purchased by the respondent in
the period from December 1, 1936, to November 30, 1937, in pounds,
dollars, and percentage of total cost :
Materials purchased in Illinois and delivered from Illinois
warehouses--------------------------------------------------
Materials purchased from Chicago dealers and delivered to
western Felt works from points outside of Illinois ----------
Materials purchased from dealers outside of Illinois and deliv-
ered from warehouse outside of Illinois----------------------
Foreign materials purchased through agents in the United
States------------------------------------------------------
Pounds Dollars Per centof
total cost
2,727,183 $361,798 00 29 56
855 481 78, 623 00 6.42
3,268,525 613, 573 00 50 12
704,042 170,070 00 13 90
DECISIONS AND- ORDERS 411
Approximately 60 per cent of the products of the respondent are
-manufactured for special orders. The balance is standard stock. The
production capacity of the entire plant is.10,000,000 pounds per year.
.The total volume for the year 1936 was 6,860,000 pounds, amounting
in value to $2,605,983. For the year 1937, the volume was 6,093,000
-pounds, amounting in value to $2,904,000. Approximately 75 per cent
of the finished products are shipped to points outside the State of
Illinois. The respondent customarily pays the freight on raw mate-
rials purchased and on finished products shipped by it.
The respondent normally employs approximately 500 persons.
II. THE ORGANIZATIONS INVOLVED
Textile Workers Organizing Committee, Western Felt Local, is a
labor organization affiliated with the Committee for Industrial Organ-
ization. It admits to membership the production and maintenance
employees of the respondent, excluding supervisory and office clerical
employees, salesmen, chemists, technicians, engineers, draftsmen, and
truck drivers.
Independent Union of Western Felt Workers is an unaffiliated labor
organization admitting to membership the production and mainte-
nance employees of the respondent, excluding supervisory and office
clerical employees, salesmen, chemists, technicians, engineers, drafts-
men, and truck drivers.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
1. The appropriate unit
The amended complaint alleges that the production and mainte-
nance employees of the respondent, excluding supervisory and office
clerical employees, salesmen, chemists, technical engineers, draftsmen,
and truck drivers, constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the Act.
This allegation is not denied in the respondent's answer and remains
uncontroverted upon the record. Both the T. W. O. C. and the Inde-
pendent admit to membership the production and maintenance em-
ployees of the respondent and exclude from membership the. em-
ployees excluded from the appropriate unit set forth in the amended
complaint. - -
The evidence establishes a-community of interest between produc-
tion and maintenance employees and a lack of community of interest
between those groups and the supervisory and otfice"clericad employees,
salesmen, chemists, technical engineers, and draftsmen. The truck
412 NATIONAL LABOR RELATIONS BOARD
,drivers are eligible for membership in and belong to a separate labor
organization. Accordingly, we find that the production and mainte-
nance employees of Western Felt Works, excluding supervisory and
office clerical employees, salesmen, chemists, technical engineers,
-draftsmen, and truck drivers, constitute a unit appropriate for the
purposes of collective bargaining and that such a unit insures to em-
ployees of the respondent the full benefit of their right to collective
bargaining and otherwise effectuates the policies of the Act.
2. Representation by the T. W. 0. C. of the majority in the
appropriate unit
A list of employees of the respondent who were members of the
T. W. 0. C. on or about June 1, 1937, was received in evidence with-
out objection. It was identified by Sydney L. Devin, T. W. O. C.
organizer, as having been taken from the membership files and
checked against membership-application cards, which contained a
statement that the signers authorized the T. W. 0. C. to act as their
representative for the purposes of collective bargaining. It contained
the names of 354 out of approximately 425 employees of the respond-
ent. Counsel for the respondent was- afforded an opportunity of
checking the application cards against the company pay roll. No
evidence was introduced to challenge the genuineness of the signa-
tures on the T. W. 0. C. membership-application cards. At an elec-
tion conducted by the. respondent on June 2, 1937, the T. W. 0. C.
received the votes of a majority of the employees. We find that on
June 1, 1937, the T. W. 0. C. represented 354 of the approximately
425 employees in the appropriate unit.
Since we find hereinafter that the respondent has engaged in un-
fair labor practices tending to discourage membership in the T. W.
.0: C., the contention of the Independent that it represented a major-
ity of employees at the time of the hearing can have no standing here.
"The unfair labor practices- of the respondent cannot operate to
change the bargaining representative previously selected by the un-
trammeled will of the majority." 1
We find that on June 1, 1937, and at all times thereafter the T. W.
0. C. was the duly designated representative of a majority of em-
ployees in the appropriate unit for purposes of collective bargaining
and that, pursuant to-Section 9 (a) of the Act, it was, therefore, the
exclusive representative of all the employees in such unit for the pur-
poses of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of work.
'Matter of Bradford Dyeing Association (U. S A.) (it , Corporation) and Temttile Work-
ers' Organizing Committee of the C. I. 0., 4 N. L R B. 604.
DECISIONS AND ORDERS 413
3. The refusal to bargain
Although the T. W. O. C. began organizational work in the,re-
spondent's plant in the spring of 1937, it was not until May 24 that the
respondent became aware of T. W. O. C.'s activities. On May 26, it
posted "A Message to Employees," 2 purporting to set forth "facts
about the Wagner Act" in the form of questions and answers.` The
information was volunteered by the respondent because "we desired
our employees to know their rights under the Wagner Act. Many
misleading statements and propaganda are being circulated among
employees." The "Message," in substance, informed employees that
they were not required to join a labor union, that an employer was
not required to reach an agreement with the union, that the Act did
not require a closed-shop agreement, that an employee might deal
directly with his employer and not through a labor organization, that
employees could form their own employees' representation plan for
group action, and that the "Supreme Court ruling" did not make it
impossible for an employee to be discharged for failure to fulfill
duties. Authorities were cited to support each conclusion:
On the following day, the respondent posted a notice in which it
asserted that there would be no discrimination against employees for
membership or non-membership in any organization of its workers,
warned that it would permit no intimidation of its employees to com-
pel them to join any organization, or any solicitation of membership
on its premises, and concluded that "The Company appreciates its
many loyal employees and will continue its policy of fair dealing
with them."
On June 1, at the instance of the T. W. O. C., which had obtained as
its members a majority of the respondent's employees, representatives
of the respondent and the T. W. O. C. conferred. Henry Faurot,
Jr., vice president of the respondent, advised the T. W. O. C. repre-
sentatives that he did not know them or that they represented the
employees, but suggested that they submit their demands. The T. W.
O. C. refused to submit any proposals until the respondent agreed to
recognize the T. W. O. C. as the collective bargaining agency of the
respondent's employees. At the close of the meeting, the bargaining
committee gave the respondent a letter in which it claimed to repre-
sent "close to 400 employees," and asked for a conference.
On or about June 2 the respondent caused a ballot to be prepared
and conducted an election among its production and maintenance
employees. The ballot required the voter to specify whether he
wanted "anybody to act" as his sole bargaining agency and, if so, -
2 The contents of this "Message" were obtained by the respondent from the Labor Rela-
tions Bulletin of the National Association of Manufacturers. See footnote 18, infra.
414 \ATIONAL LABOR RELATIONS BOARD
whom. A majority selected T. W. 0. C. as their choice of bargaining
representative.3
Despite the results of the election, the reluctance of the respondent,
as disclosed by the conference of June 1, to recognize the T. W. 0. C.
as the bargaining agency of the respondent's employees was carried
over to a further conference on June 3. The respondent again asked
the T. W. 0. C. to submit its demands. When the T. W. 0. C. replied
it would avail nothing unless the respondent recognized the T. W. 0.
C. as the collective bargaining agency of the employees, the respond-
ent said, "Well, we're here." The T. W. 0. C. then presented its
proposed agreement which, among other things, provided for a
closed shop. The respondent's answer to the proposal was that if it
bargained with the T. W. 0. C. at all it would bargain with it only
as the representative of the T. W. 0. C.'s members. The respondent
insisted that the demands were "impossible" and "out of the ques-
tion," but made no commitments or counterproposals. A further
conference was agreed upon, but no date was fixed.
The T. W. 0. C. manifested a willingness to accede to the respond-
ent's position by sending the respondent a substitute for the closed-
shop provision of the proposed agreement. The new paragraph
provided in substance that the respondent would agree not to inter-
fere with the right of its employees to become members of the T. W.
0. C. or discriminate against T. W. 0. C. members because of such
membership or "aid, promote or finance any labor group or organiza-
tion which purports to engage in collective bargaining or to make
any agreement with any such group or organization." The respond-
ent consulted its attorney, who, after making some suggestions con-
cerning the proposed substitute provision, advised the respondent
as follows : "With respect to all of the provisions contained in the
original tentative draft, say to them (the T. W. 0. C.) that, as you
have previously pointed out, some of them are utterly impossible for
economic reasons and that you will be glad to confer with them, at
their convenience, at some time in the future."
A further meeting was held on June 7 at which the T. W. 0. C.
presented its proposed agreement as modified. The respondent made
no effort to meet the proposals by counter suggestions. It contented
itself with reiterating the' advice of its counsel that some of the
provisions of the proposed contract "were utterly impossible for
economic 'reasons" and that it 'would "be glad to confer with them
at their convenience, at some time 'in the future." Faurot testified,
"We were'asked to make a counter-offer. I said we were there to
soot of 403 voting, 325 voted in behalf of a collective bargaining agency, 77 against,-
and 1 remained neutral. Of those desiring representation, 264 wanted the C. I. O. (the
T. W. O. C. was the only C. I. 0 affiliate in the plant), 41 did not specify, 15 wanted
the A. F of L, 3 a company union, 1 an independent, and 1 designated "Victor."
DECISIONS AND ORDERS 415
hear what they had to say and receive their demands and to discuss
them . . . I finally stated that if we could' come to no under-
standing that we would like to withdraw, which we did."
In view of the respondent's conduct, its refusal to recognize the
T. W. O. C. as the exclusive bargaining agency of its employees, and
its predetermined bargaining formula disclosed by its close adherence
to the advice of its counsel, we find that the respondent refused to
bargain collectively with the T. W. O. C. as required by the Act.
Any doubt concerning this, and any belief that the T. W. O. C. or
the employees may have had that the respondent would bargain
collectively with the T. W. O. C. was completely dispelled by a
"Notice to Employees" which the respondent posted on its bulletin
boards on Julie 8:
WESTERN FELT WORKS
It has always been the policy of this Company to deal directly
with its own employees. It has never been necessary for either
the Company or you to go to any outsider for help in any matter
between us. We have tried to be fair with you, and you have
been fair with us. There is no need now for anyone to act for
either of us.
Direct dealing is always more satisfactory and less expensive.
It is not necessary for you to pay dues to any one to find out
where we stand.
Without anything to show you had wanted to make requests of
us for any changes in our present arrangements, a form of agree-
ment was handed to us by certain people claiming to act for you
and we were asked to sign it.
It is apparent that the agreement was drawn by someone not
familiar with our relations to each other or with our business.
We have never had nor needed any written agreements with
our people.
We do not intend now to admit that you are not able to make
your own agreements and that someone else must talk for you.
The items that were included in the paper that was handed
to us were, some of them, unreasonable and that you would not
have asked for yourselves.
That there may be no misunderstanding as to what we are
willing to do and what is the present policy of the Company,
we outline this program :
(1) We shall be willing to talk with you at any time about
any matter in which you think there should be any change.
(2) Our work week will continue as in the past-44 hours.
(3) Our overtime will be paid as in the past-time and one
third.
416 NATIONAL LABOR RELATIONS BOARD
(4) We will give all employes a flat increase of 30 an hour
over the rate received by them in their last pay envelope begin-
ning after the next pay after June 8, 1937.
(5) Any worker reporting to work at the request of the Com-
pany shall be guaranteed two hours' work for the day on which
he reports.
(6) Employes shall receive annual vacations with pay of one
week after three years' service.
These proposals we believe to be fair and to'be all that can
reasonably be expected in view of existing business conditions.
WESTERN FELT WORKS.'
In this declaration of its policy the respondent clearly stated its
intention of dealing directly with its employees, in spite of the fact
that a majority of them had designated the T. W. O. C. as their bar-
gaining representative. The respondent further emphasized its posi-
tion by declaring that it "never had nor needed any written agree-
ments" and that "We do not intend now to admit that you are not
able to make your own agreements and that someone else must talk
for you." This statement of the Company's policy was an eloquent
sequel to the three fruitless conferences that preceded it. This clear
refusal to bargain collectively with the T. W. O. C. precipitated the
strike of June 8.
At 11 p. m. in the evening of June 8, the production and mainte-
nance employees of the respondent went out on strike. The strike
continued until July 30, 1937, during which period the plant was
constantly picketed. Except for the first few weeks of the strike,
during which a number of the supervisory and clerical employees
were engaged in shipping finished products and disposing of products
in process, the plant was completely shut down until July 13. The
T. W. O. C. in the meantime continued its efforts to confer, but the
respondent insisted that it would adhere to its policy as stated in its
notice of June 8 and that it had no further proposals to offer.
Following the filing of a charge by the T. W. O. C., Leonard C.
Bajork, Acting Regional Director, arranged a conference between the
parties for June 2. John D. Black, attorney, representing the re-
spondent, agreed to participate in the discussion provided his partici-
pation was not to be interpreted as bargaining. The T. W. O. C.'s
proposed a reement, as amended, was considered article by article.
With reference to most of the provisions, the respondent indicated
that they would be given further consideration. As to those provi-
sions not in conflict with the respondent's notice of June 8, the
respondent manifested its approval. Much of the conference, how-
ever, was devoted to a discussion between Mr. Black and counsel for
' Italics ours
DECISIONS AND ORDERS 417
the Board concerning whether the law required the parties to enter
into any agreement, oral or written. A further conference, called for
July 2,,was postponed until July 8, because of the failure of the T.
W. O. C. to attend. These conferences culminated as before : with an
insistence by the respondent that it would enter into no agreement
with the T. W. O. C., and with a "Notice to all Employees" setting
forth its "labor policy." This notice, the respondent's substitute for
an agreement, was presented to the T. W. O. C. committee, which
was asked to consider the notice and to give the respondent an answer
as soon as possible. The notice completely ignored the T. W. O. C.
as the collective bargaining agency of the respondent's employees;
and it could not be construed as a contract or even as an offer. By
letter of July 10, the T. W. O. C. rejected the notice as an appropriate
answer to its bargaining attempts and submitted a counterproposal
purporting to be "in keeping with the realities of the situation." The
T. W. O. C. conceded the 44-hour week contended for by the re-
spondent and suggested that a further conference be held. On the
afternoon of July 9, the respondent had sent the notice, slightly
modified, and referred to as the Company's statement of its labor
policy, to all its employees, together with an announcement of its
intention to reopen its plant on July 13, 1937, and to "re-employ all
former employees for whom we have work, except such as may have
been guilty of illegal acts or acts of violence towards the company or
any of its former employees since June 8, 1937." In this notice the
respondent reiterated its determination not to bargain with the
T.-W. O. C. as the exclusive representative of the employees but to
bargain with it as the representative of its members only.5 Con-
temporaneously with the sending of this notice, and for a week or-so
5 The notice provided :
NOTICE TO ALL EMPLOYEES
1. The Company recognizes the right of any or its employees to select for themselves,
if they so desire, a collective bargaining agency to bargain for such employees as
may have made such selection and will bargain with such agency for such em-
ployees only and for no others ; but may or may not adopt rules or a policy that is
asked by such employees or•agevcy
The Company also recognizes the right of employees to bargain individually and
will deal individually with such emplcy-es as desire tins method in preference to
collective has gaining.
2. The work week will be 44 hours , consisting of 5 eight -hour days , and four hours
on Saturday All shifts to conform to our basic week, which begins on Wednesday
and ends on Tuesday Sunday work will be rotated
3 vacations-All employees after one year of continuous service will receive a vaca-
tion of one week with pay in advance . All employees after five years of continu-
ous service will receive a vacation of two weeks with pay in advance
4 Oveitime at time-and -a-third will be paid for time in excess of 44 hours per week.
5. Wages-Hourly rates will be increased over iates paid June 1, 1937
5f per hour for men
3¢ per hour for *oinen
6. Beginning wages for men-47 cents an hour.
Beginning wages for women-41i/2 cents an hour
This may continue during a trial period of sixty days -
418 NATIONAL LABOR RELATIONS BOARD
prior thereto, foremen and assistant foremen, at the instance of the
respondent, were engaged in soliciting employees to return to work.
Lists for that purpose were furnished by the respondent. When the
plant reopened July 13, in addition to the approximately 100 em-
ployees who returned, about 100 workers were obtained from the
Landis Award Employers' Association,
The T. W. O. C. sought to bargain further on July 13 and 14, but
the respondent refused. Faurot testified that Sydney L. Devin, a
T. W. O. C. organizer, called him on the telephone and "I told him
that our Company's statement of its labor policy was our final answer
to their demands and that they had advised us by letter that the policy
was unanimously rejected and that, as far as we were concerned, that
closed the question of bargaining, and we did not intend to reopen
it . . . I told him that if he wished a conference we were willing
to meet with him, and that we had no intention of reopening the
question of bargaining." A conference was arranged for and held
on July 21. Leon M. Despres, counsel for the T. W. O. C., sought to
reopen the discussion of the respondent's statement of policy. Al-
though Black insisted that he would not discuss the notice or its terms,
he stated that the respondent would consider anything new the T. W.
O. C. might have to offer. The situation continued unchanged.
On July 24, the respondent sent to each of its customers an an-
nouncement that "A strike of five weeks duration, called by the C. I.
0. is ended without agreement of any kind, either oral or written,
with this organization. This was our first shut down of importance
since our beginning 39 years ago, and was caused wholly by outside
interference. We have resumed operations as usual under a declara-
tion of labor policy satisfactory to our employees [Italics
ours. ]
7. Piece woi k-To be decided by a vote of those engaged in piece work.
8. Night work-There will be no differential in rates.
9 Every worker reporting for work at the request of the Company will be guaranteed
two hours work for that day.
10. Wages will be paid weekly by check.
11. No employee will be dismissed except for just cause
12. If all other factors are equal , seniority will be considered in cases of layoffs and
rehiring
13. Safety and Health-As in the past , the Company will earnestly endeavor to pro-
mote safety in every way . It will continue to maintain adequate facilities for the
treatment of accidents and to protect the health of its employees
11. All grievances or requests will be referred to anyone in authority , or, preferably
to Mr Henry Faurot, Jr.
WESTERN FELT WORKS.
JULY 9, 1937.
(Italics ours)
This letter reflects the attitude that inspired the respondent 's conduct throughout its
dealings with the T . W. 0. C The respondent must have known that the boastful state-
ments contained in this letter , designed to win the admiration of receptive customers,
would ordinarily have been effective propaganda for the dissemination and inculcation
elsewhere of the anti-union practices employed by the respondent at its own plant, as
herein disclosed.
DECISIONS AND ORDERS 419
The United States Department of Labor, through its representative,
Robert M. Pilkington, arranged a conference between the parties,
which resulted in terminating the strike on July 30, 1937. The exact
terms of settlement are not clearly set forth in the testimony. Mr.
Black, however, undertook to state in a letter to Mr. Pilkington what
occurred at the settlement meeting.' The letter further shows that
the respondent persisted in its refusal to bargain with the T. W. O. C.
as the exclusive representative of the respondent's employees, and
would bargain with the T. W. O. C. for its members only.
T
Re: Western Felt works
JULY 30, 1937.
Mr RonERT M. PILICINGTON,
United States Commissioner of Conciliation,
Department of Labor, Chicago, Illinois.
DEAR MR. PILKINGTON : You called on me two days ago and we had some discus-
sion of the situation at the western Felt Works, in which I made very clear to you
the position that the Western Felt Works considered that it had discharged its full
obligation with respect to bargaining when it submitted on July 8, 1937, its "Notice
to all employees" as its final position in the matter then pending, and received a let-
ter of July 10, 1937 front the Textile Workers Organizing Committee stating that the
membership unanimously voted to reject this.
Regardless of this, I told you that the Company would be glad to discuss with any
of its employees, or anybody who could help, the present situation, but that this
would be done without prejudice to the position the Company had already taken
This morning you advised me by phone that you would like to come in and discuss
the situation with me and with representatives of the Committee and at 10 o'clock
you came accompanied by Mr Harold Gibbons, Mi. William J. Tuller and Mr. Ernest
Verzim. Mr Henry Faurot, Sr was also present
We had some lengthy discussion during the course of which Mr. Faurot stated that
the Notice to all employees of July 8 had already been amended as to employees who
have returned to work at the plant, by changing paragraph 4 to state that overtime
at time and a half will be paid for time in excess of forty-four hours per 'week (in-
stead of time and a third).
It was stated by me for the Company, Mr. Faurot assenting, that it is and will be
the policy of the Company to recognize the right of its employees to select for them-
selves a collective bargaining agency for such employees as may have made such
selection, and will bargain with such agency for such employees only and for no
others; in other words, that the Company will recognize the organization to bargain
for its own members only: that employees with the exception (if these ate any ex-
ceptions) stated in the Company's letter of July 8, will be ieturned to work as work
is available, nithout discrimination; that the Company will discuss with any' em-
ployee any matter which such employee may think requires discussion and will carry
out in good faith the principle of the right to such discussion.
It was suggested by Mr. Gibbons that upon this statement of the position of the
Company, the.stiike will be called off and the men will return to work. My answer
to that was that it did not seem to tie necessary for us to discuss just the form of
the action that would be taken by the men in deciding whether or not they would
ieturn to work, because that was a matter for them to determine and not for us to
attempt to influence them about.
I earnestly hope that the conference we had may have the effect of a resumption
of operations and of wage earning by the men and of a larger volume of business
by the Company
Of course you understand that the Company cannot guarantee when work will be
available, but we hope for a speedy resumption of a full volume.
Very truly yours,
John A. Black
(Italics outs.)
420 NATIONAL LABOR RELATIONS BOARD
Henry Faurot, Jr., vice president of the respondent, testified as
follows :
Q. Now , when you say certain articles were satisfactory, do
you mean that the Company would be ready to enter into an oral
or a written agreement with respect to those articles?
A. No.
Q. Would it be fair to say, Mr. Faurot, that during the entire
course of negotiations between the Company and the Western
Felt Local, the Company at no time intended to enter into an
agreement with the Western Felt Local, either oral or in writing?
A. We did not intend to sign a contract.
Q. Did you intend to make an oral agreement at any time dur-
ing the negotiations with the Union?
A. No, we would not make an agreement.
Q. Written or oral'-is that correct?
A. That is correct.
Q. Is it also fair to say, Mr. Faurot, that during the entire time
of the negotiations between the Western Felt Works and the
Western Felt Local, the Company did not intend to enter into
an oral or written agreement with the Union , regardless of the
terms proposed by the Western Felt Local? (After clarification
of the question , the witness answered "Yes.")
The position of the respondent in this respect during the entire
course of negotiation presents an issue almost identical with that
which we decided in the St. Joseph Stock Yards Company case .a In
that case the employer refused to enter into an agreement , either writ-
ten or oral , with a union selected by a majority in an appropriate unit,
and we decided that such refusal was an unfair labor practice within
the meaning of Section 8 (5) of the Act . With reference to the at-
titude of employers who refuse to enter into agreements with unions
we said in the St. Joseph case :
The solution of the problem lies in the recognition of that at-
titude. Such an attitude grows out of an antipathy toward or-
ganization of workers and a refusal to concede that the policy
of the United States shall be the policy of the respondent. It
is designed to thwart and slowly stifle the Union by denying to
it the ' fruits of achievement . It is based upon the knowledge
that in time employees will grow weary of an organization which
cannot point to benefits that are openly credited to its aggressive-
s Matter of St. Joseph Stock Yards Company and Amalgamated Meat Cutters and
Butcher 7Pmkumen of North America, Local Union No 159, 2N L R B.39
DECISIONS AND ORDERS 421
ness and vigilance and not to an employer's benevolence that on
the surface may appear genuine but in truth is forced upon the
employer by the organization. To many his unwillingness to
enter into an agreement with a labor organization may seem no
more than a harmless palliative for the employer's pride and to
amount only to a petty refusal to concede an unimportant point
purely as a face-saving device. But the frequency with which
the old Board was compelled to denounce such a policy on the
part of employers indicates its potency as a device subtly calcu-
lated to lead to disintegration of an employee organization.
Viewed from the other side, the main objective of organized labor
for long has been the collective agreement and the history of or-
ganization and collective bargaining may be written in terms of
the constant striving for union recognition through agreement.
In many cases employees have left their employment and struck
solely because of the employer's refusal to enter into a collective
agreement. An objective that has been so bitterly contested by
employer and employee, that has been the cause of many long and
costly strikes, must be evaluated in the light of the conflict it
has produced. -
Throughout its dealings with the T. W. O. C. the respondent, act-
ing under the aegis of its lawyers, deliberately engaged in a course
of conduct designed to evade its duties under the collective bargain-
ing provisions of the Act. It attempted to create a semblance of
bargaining without ever having intended to bargain. It refused to
recognize the T. W. O. C. as the exclusive bargaining agency of its
employees, despite the fact that the T. W. O. C. clearly represented
a majority in the plant. It refused to enter into any agreement with
the T. W. O. C., thus emasculating it as an effective instrument of
employee representation. It insisted upon dealing directly with its
employees by posting notices and soliciting their return to work, thus
attempting to defeat the bargaining activities of the employees'
representative.
In conclusion, we find that the evidence establishes the following
facts:
(1) That on June 1, 3, and 7, 1937, and thereafter, the respondent
refused to bargain collectively with the T. W. O. C.; -
(2) That the refusal to bargain collectively resulted in the strike
of Jnne 8, 1937, which continued until July 30, 1937;
(3) That throughout the negotiations from June 1, 1937, to July
30, 1937, the respondent deliberately and steadfastly refused to enter
into any agreement, either oral or in writing, with the T. W. O. C.;
(4) That throughout the negotiations from June 1 to July 30,
1937, the respondent refused to recognize the T. W. O. C. as the
147841-39-vol 10-28
422 NATIONAL LABOR RELATIONS BOARD
exclusive bargaining agency of the respondent's employees in the
appropriate unit;
(5) That the respondent refused to bargain collectively in good
faith with the T. W. 0. C.
We find, therefore, that on June 1, 3, and 7, 1937, and thereafter,
the respondent has refused to bargain collectively with the T. W.
0. C. as the representative of its employees in respect to wages, rates
of pay, hours of employment, and other conditions of employment.
We further find that the respondent, by the acts set forth herein-
above, has interfered with, restrained, and coerced its employees in
the exercise of their rights to self-organization, to form, join, or
assist labor organizations, to bargain collectively through represent-
atives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining and other mutual aid and
protection as guaranteed in Section 7 of the Act.
We have found above that the respondent, by maintaining through-
out the negotiations the position that it would not enter into an
agreement, either written or oral, even though understandings were
reached, refused to bargain collectively with the T. W. 0. C. as re-
quired by the Act. The respondent also took the position that it
would not enter into a signed agreement, even though understandings
were reached, thereby indicating that even if it entered into an
agreement, it would refuse to embody the understandings in a signed
agreement. In view of the respondent's readiness to post signed
statements of its labor policy to its employees on the bulletin boards
of the plant, its refusal to enter into a signed agreement with the
T. W. 0. C., even though an understanding should be reached, can
have but one purpose-to damage the prestige of the T. W. 0. C. as
a bargaining agency in the plant. We have held under substantially
similar circumstances and in language equally applicable here that
understandings reached by the parties shall be embodied in a signed
agreement :
Section 8 (5) of the Act requires an employer to accept the
procedure of collective bargaining in good faith, and the nature
of this obligation must be determined in the light of the pre-
vailing practice of collective bargaining and the spirit and pur-
pose of the Act as a means of avoiding industrial strife. We
regard it as well settled that collective bargaining in good faith
requires a willingness to consummate the negotiations, if suc-
cessful, by entering into some sort of an agreement. And we
hold that under circumstances such as are presented here, it is
the employer's obligation to accede to a request that understand-
ings reached be embodied in a signed agreement. The present
controversy is projected on the background of a long struggle
by labor organizations to attain full recognition of their right to
DECISIONS AND ORDERS 423
recognition as collective bargaining agencies with a dignity equal
to that of-the employers with whom they deal. We take judicial
notice of the fact that today thousands of employers have ac-
corded unions their right to normal contractual relationships,
and that, as is shown by the record, the signed collective bar-
gaining agreement is the prevailing practice. From the view-
point of harmonious and cooperative labor relations, as well as
of sensible business practice, the importance of embodying un-
derstandings in signed agreements is obvious. Whether there
may be, in some future case, circumstances indicating that the
employer there involved may under the Act decline to embody
understandings in a signed agreement, we need not here decide.
It is certain that we are not confronted with such circumstances
in this case. To say that there is something impracticable about
a signed collective bargaining agreement with a large steel man-
ufacturing concern, justifying an exception from the general
practice, would be to shut our eyes to facts of common knowledge
concerning recent labor history. As a matter of fact, the reasons
advanced by the respondent, considered in connection with the
factual background of the current dispute, indicate clearly that
the respondent was and is motivated in its action by a desire to
check the progress of the S. W. 0. C. in its plants.°
Accordingly, we shall order by way of additional remedy that the
respondent embody understandings reached with the T. W. 0. C. in
a signed agreement.
B. Interference, restraint, and coercion '
Shortly after it came, to the attention of the respondent that the
T. W. 0. C. was engaged in organizing the employees, the respondent
began a campaign of propaganda and coercion against the T. W. 0. C.
The question and answer "Message to Employees" of May 26 was a
gratuitous offer of legal advice calculated to dissuade employees from
joining, or retaining their membership in, the T. W. 0. C. By this
message, offered ostensibly to correct false impressions, the respond-
ent disclosed to its employees its attitude toward the T. W. 0. C.10
In effect, it advised its employees that they were not required to
join a labor union, but if the employees chose to do so, the Company
was under no obligation to reach an agreement of any kind with such
union. The employees were instructed that they could deal directly
with the employer and could form their own representation plan to
0Inland Steel Company and Steel Workea.s Organiz,nq Committee and Amalgamated
Association of Iron, Steel and Tan Workers of North America, Lodge Nos 64, 1010, and
1101, 9 , N L R B 783
10 See footnote 18, infra.
424 NATIONAL LABOR RELATIONS BOARD
deal with the Company. This was tantamount to advising employees
not to join the labor union because the Company had no intention
of making an agreement with one.
As set forth above, the respondent on May 27 followed its "message"
with a notice to its employees that it would not discriminate against
any employee because of "membership or non-membership in any or-
ganization of its workers." In this notice the Company insisted that
its workers would not be intimidated into joining any organization
and that it would not permit solicitation of members by labor organi-
zations on the Company's premises . The tone of this notice is sharply
anti-union , as it concludes : "The Company appreciates its many loyal
employees and will continue its policy of fair dealing with them."
The respondent undoubtedly intended the word, "loyal", to be con-
strued by its employees as meaning "non-union."
If, after these notices, the employees were in doubt as to what course
the respondent desired them to pursue , such doubt was completely
dispelled by the notice of June 8. The employees were told that they
did not need to pay dues and that it was not necessary for them to go
"to any outsider" or that "anyone act for either of us." The respond-
ent referred by clear implication to the T. W. O. C., which it knew
to be the duly authorized representative of its employees , as "certain
people claiming to act for you" and as "some one not familiar with
our relations to each other or with our business." It described some
of the demands made as "unreasonable" and something which the em-
ployees would not have asked for themselves. At the time of this
notice and prior and subsequent thereto, as more fully set forth here-
inabove, the respondent refused to recognize and bargain with the
T. W. O. C. as the representative of the respondent 's employees, thus
tending to discourage employees from membership in a labor organi-
zation and interfering with the employees ' right to bargain collec-
tively through representatives of their own choosing. The strike of
June 8 resulted.
Just before it reopened its plant on July 13, the respondent sup-
plied its supervisory employees with employee lists, instructing them
to solicit the employees to return to work. This solicitation often took
the form of abusing, discrediting, and belittling the T. W. O. C. Most
of the statements ascribed by employees to the respondent 's foremen
and assistant foremen were categorically denied by the foremen and
assistant foremen. However, C . F. Benson, in charge of production,
and Russell Mahoney, assistant foreman, failed to testify , leaving the
statements attributed to them uncontradicted upon the record. We
find, therefore , that they made the statements attributed to them.
Benson said to Christ Gylling, an employee , "Well, what do you want
to have to do with a union like that for anyhow ? . . . It is only a
Communistic organization . I thought you had better sense than that."
DECISIONS AND ORDERS 425
He also told Stanley Smuskiewicz, another employee, that he would
make a foreman out of him if he would keep away from the C. I. 0.,
and, advised John T. Browning, an employee, that "You don't have to
have the C. I. O. here . . . C. I. O. is nothing but a Communistic
red organization."
Mahoney told Frank Radke, an employee, that if he would attend
C. I. O. meetings and report back to the Company he would see that
Radke received back pay.
Victor Theriault, an employee, testified that Mahoney and Herlehy,
having supervision over five men, told him to stop going across the
street to T. W. O. C. headquarters or something would happen to him.
Herlehy denied the statement, but admitted that he "may have told
some one we'd be better off with an independent to get away from
outside influence." Herbert Anderson, a foreman, remarked to Theri-
atilt about "a bunch of crazy people wanting to join a Communistic
organization like that."
Peter Zrazik, one of the workers, testified that Anderson told him
that the Company would never sign with the T. W. O. C., that they
would "sooner close the place down for three months," that the union
is "no good," that the union officers are "a bunch of crooks," and that
the employees "would not gain anything by joining." At first denying
the conversation, Anderson later said that he did not- recall it. We
find that Anderson made the statements attributed to him by Zrazik.
Harold Hanson, an assistant foreman, admitted that he told James
Chylik "personally" that he considered the C. I. O. was "commu-
nistic."
Bernard Bridgeford, an assistant foreman, did not deny that he
told George Wilson that the C. I. O. was "no good."
Many employees testified that Vesely, the personnel manager, made
certain remarks to them at times prior to, during, and after the strike.
Among the statements attributed to him, which he denied, are the
following :
This is the last check unless you boys forget about causing trou-
ble around the Company.
You haven't got any business in there (T. W. O. C. headquar-
ters). It won't do you any good.
The C. I. O. never did anything for you and never will.
I know you are hanging around across the street again.
See what kind of a bunch of liars-they (the T. W. O. C.) are.
Employees attributed many other similar remarks to other super-
visory employees who denied making them. It is highly improbable -
that all the employees who testified to coercive statements made to
them by supervisory employees were not telling the truth. We find
that the statements attributed to Vesely and other supervisory em-
ployees were made by them.
426 NATIONAL LABOR RELATIONS BOARD
The respondent's notices to its employees tending to coerce and
interfere with their selection of a bargaining representative, its refusal
to bargain with or recognize the T. W. O. C., its insistence upon deal-
ing directly with its employees, thus discrediting the T. W. 0. C. as
a bargaining agency, the anti-T. W. 0. C. and pro-Independent 11
statements of its supervisory employees, and its discrimination against
and discharge of certain employees because of their union affiliation 12
lead us to conclude that the officials, supervisory employees, and other
agents of the respondent pursued a course of coercion, intimidation,
and interference clearly designed to discourage and restrain its em-
ployees from affiliating or continuing their affiliation with an outside
union.
We find, therefore, that the respondent has interfered with, re-
strained, and coerced its employees in the exercise of their rights to
self-organization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purposes of collective bar-
gaining and other mutual aid and protection as guaranteed in Section
7 of the Act.
C. The discriminatory refusals to reinstate
The amended complaint alleges that on July 30, 1937, and at all
times thereafter, the respondent refused and failed to reinstate to
employment in the plant 76 employees who participated in the strike
of June 8, 1937, for the reason that they had engaged in concerted
activities with other employees of the plant for the purpose of collec-
tive bargaining and, other mutual aid and protection. It is further
alleged that, by such refusal to employ, the respondent discriminated
in regard to the hire and tenure of employment of the 76 individuals
and discouraged membership in the T. W. 0. C. in violation of Sec-
tion 8 (3) of the Act. These allegations are denied by the respondent.
The respondent reopened its plant on July 13, 1937, and notified its
employees to return to work. A number of them returned, and new
employees 13 were also hired. Following the settlement of the strike
on July 30, Vesely crossed the street from the plant to T. W. 0. C.
headquarters, where on August 2, a large group of striking employees
were awaiting reinstatement and told these employees that they should
return to their homes and that they would be called when needed.
The striking employees were assured by Faurot that this would be
within a week or 10 days. Approximately 27 of the 76 employees
n See Section E, infra
zz See Sections C and D, infra.
'33 "New employees" were those persons hired by the respondent after June 8, 1937, who,
in so far as the record shows, had never previously been employed by the respondent.
DECISIONS AND ORDERS 427
listed in the amended complaint personally applied for reinstatement
and others did not apply because of their reliance on the statement
of Vesely. On August 14 the T. W. O. C. furnished the respondent
with a list of workers who had not been reinstated. None of the em-
ployees listed in the amended complaint, with the exception of Thomas
Kosisek, 'were asked by the respondent to return to work following
settlement of the strike. All were T. W. O. C. members. It is con-
tended by the respondent that application for reinstatement is a con-
dition precedent to eligibility for reinstatement and back pay. Mani-
festly, an application here would have availed the employee nothing.
It cannot be said that because some of the employees did not make
application to go to work they were not refused employment. That
would "place a penalty on them for not doing what they knew would
have proved fruitless in the doing." 14 Accordingly, we find that
the respondent, by its conduct, foreclosed the requirement of in-
dividual applications for reemployment, and refused reinstatement
to those persons listed in the amended complaint, except as otherwise
stated herein.
When the strikers returned and sought reinstatement on August 2,
the respondent had in its employ 168 old employees who had returned
to work since July 13 and 153 new persons who had been employed
since that date. It hired 39 new employees in August, 10 in Septem-
ber, 2 in October, and 1 in November. After August 2 there were
150 old employees reinstated-143 in August, 3 in September, and 4
in October. The 76 striking employees named in the complaint were
never reinstated. With the exception of Thomas Kosisek, whose case
is considered hereinafter, these employees are listed in Appendix A
and Appendix B.
• It is apparent from the foregoing that shortly after the strikers ap-
plied for reinstatement on August 2 the plant was operating at
greater capacity than when the strike was called, and that the re-
spondent would have been able, by displacing persons hired after the
strike-began, to-have restored all the striking, employees to their
former positions at the time of, or shortly after, their application for
reinstatement: This the respondent refused to do as to strikers listed
in Appendix A and Appendix B. Aside from the respondent's in-
tention to discriminate against members of the T. W. O. C., consid-
ered below, there is nothing in the record to show that the respondent's -
refusal of such reinstatement was based upon grounds other than the
desire not to displace new employees hired since the beginning of
the strike.
14 Matter of Carlisle Lumber Company and Lumber & Sawmill Workers ' Union, Local
2511, 2 N L R B '248, order enforced in National Labor Relations Board V Carlisle Lum-
ber Company, 94 Fed: (2d) 138, cert den , May 23, 1938, 304 U S 575
428 NATIONAL LABOR RELATIONS BOARD
Under Section 2 (3) of the Act the strikers remained employees
of the respondent. And we have frequently held that where, as
here, a strike has been caused in whole or substantial part by the
respondent's unfair labor practices, the striking employees are en-
titled to their former positions upon making application therefor.15
The failure of the respondent in this case to reinstate the striking
employees listed in Appendix A and Appendix B to the positions to
which they were entitled, by displacing persons hired after the com-
mencement of the strike if necessary, in effect and in result discrim-
inated, and constituted a discrimination, concerning hire and tenure
of employment, against such employees. Such discrimination dis-
courages union membership. We, find that by the foregoing refusal
to reinstate the striking employees listed in Appendix A and Appen-
dix B the respondent has engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act, and has interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.'
Independently of the foregoing, we find from the record that the
actual reason for the respondent's refusal to reinstate the strikers
listed in Appendix A and Appendix B lay in its desire to punish
them for their concerted activity and thereby discourage member-
ship in the T. W. O. C. This is clear from the circumstances sur-
rounding the application of the strikers for reinstatement. A number
of these employees were informed that they had been notified to
return on July 13, during the strike, and that because they had failed
to do so they no longer had any claim on their jobs. Others were
offered reinstatement to different jobs, involving less-desirable duties
and sometimes lower pay. Vesely asked Raymond WTisinski and
Kasty Zalimas, at the time they applied for reinstatement, whether or
not they were returning as members of the T. W. O. C. They, in
effect, replied that they were. They were not reinstated. The em-
ployees who were active in the T. W. O. C. were for the most part not
reemployed. Seven substitute picket captains were included among
these. A picket captain who was reinstated was later discharged. All
of those persons listed in Appendix A and Appendix B were mem-
bers of the T. W. O. C. and substantially all had been engaged in
picket duty. .
15 Matter of Jeffery-DeWitt Insulator Company and Local No 455, United Brick and
Clay ,Workers of America, 1 N L R. B 618; order enforced in Jeffery-DeWitt Insulator
Company v. National Labor Relations Board, 91 F (2d) 134, cert den , 302 U S 731 ;
National Labor Relations Board v. Remington Rand, Inc, 94 Fed. (2d) 862, cert den.,
May 23, 1938, 304 U S 576
16 Black Diamond Steamship Corp. v. National Labor Relations Board, 94 Fed (2d)-
875, cert den , May 23, 1938, 304 U S 579; enforcing order in Matter of Black Diamond
Steamship Corporation and Marine Engineers ' Beneficial Association , Local No . 33, 3 N.
L. R B 84; Matter of McKadg-Hatch, Inc. and Amalgamated Association of Iron, Steel,
and Tan Workers of North America, Local No 1139, 10 N. L R B. 33.
DECISIONS AND ORDERS 429
Further, an examination of the seniority status of the respondent's
employees establishes-that many of the; old employees rehired during
and after the strike, as well as all the new employees, had less seniority
than those listed in Appendix A and Appendix B. Furthermore,
despite the fact that the evidence clearly establishes that a great
many of the new employees were slow and inexperienced at their
work and slowed up production markedly, the respondent retained
these employees in preference to the older, more-experienced
workers.17 The respondent offered no evidence that the new em-
ployees retained in its employ to the exclusion of those employees
seeking reinstatement in this, proceeding were continued because of
their superior skill or ability. Such a preference as the respondent
showed in retaining the new employees can only be explained on the
ground that the striking employees listed in Appendix A and Ap-
pendix B were T. W. O. C. members and the new employees were
not.
Finally, the respondent hired 52 new employees after August 2,
1937, to the exclusion of an equal number of the striking employees
listed in Appendix A and Appendix B. None of the new employees
were T. W. O. C. members. The respondent introduced no evidence
tending to show that the work for which the 52 new employees were
hired could not have been performed equally well by the striking em-
ployees who were refused reinstatement. In the absence of such
evidence the respondent's failure to employ for such work 52 of
the employees listed in Appendix A and Appendix B must be at-
tributed to the fact that they were members of the T. W. O. C. and
had engaged in concerted activities.
The respondent contends that the employees were offered reem-
ployment on July 13 and failed to return and accordingly are not
entitled to reinstatement. As we have heretofore held, an employee
may refuse an employer's offer of reinstatement during the pendency
of a strike resulting from an employer's unfair labor practices with-
out impairing such employee's right to subsequent reinstatement.
Of those persons listed in Appendix A and Appendix B who tes-
tified, all wanted to return to their jobs, except Frank R. Radke, who
had obtained employment elsewhere on November 5, 1937.
In view of the foregoing facts, and upon the record as a whole, we
find that the striking employees listed in Appendix A and Appendix
B were denied reinstatement on or about August 2, 1937, because of
their active association with the T. W. O. C. and that this constituted
discrimination in regard to the hire and tenure of employment of its
employees, thereby discouraging membership in the T. W. O. C. The
respondent has therefore engaged -in and- is- engaging in unfair, labor -
17 The respondent not only retained these new employees but, as production slackened
In the fall of 1937, it laid off 87 of the older employees and but 27 of the new.
430 NATIONAL LABOR RELATIONS BOARD
practices within the meaning of Section 8 (3) of the Act, and has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
The cases of Benjamin Galla, August Schmaedeke and Thomas
Kosisek offer problems calling for individual treatment.
Benjamin Galla. The Trial Examiner found that Galla refused to
return to work except for an increase in wages above that generally
granted, and, therefore, was not entitled to reinstatement. The
T. W. 0. C. excepted to this finding. Vesely's account of his con-
versation with Galla on or about August 9, 1937, follows :
My recollection of it is that he came in to see me and he said
that he was ready to go to work but that he thought that he was
entitled to a larger rate of pay. And then I said, "What were
you getting?" and he said, "521/2 cents." And I said, "Plus five,
that makes it 57 and another five would make that 621/2, but" I
said, "it is useless to talk about rates-because that job has been
filled."
And just before I said that I recollect that I said when I men-
tioned this 621/2 cent rate I said to him that if that were satis-
factory, and he said, "For a while." And I said, "Until the next
strike," and he smiled and just nodded his head. And then I
went on to tell him that his job was filled. He thought that he
was entitled to his old job and told me that he could do it better
than the two men that we have on the job now, and that he
could produce as much as the two men that we had on. And I
agreed with him that that was true, but nevertheless those men
were on that job and I would not take them off. I did offer him
a 52¢ job . . . I didn't see him then for a week I think it was,
and then he came in and said he was ready to go to work
on his old job, and I told him, "You misunderstood me, I told
you that job was filled and you could have a 52 cent one." Then
he said, "I think I will wait."
Vesely testified on cross-examination that Galla could do more work
than both men filling his position. When asked the reason for not
rehiring Galla, he replied :
Because his job was filled . . . Ben Galla had his opportunity
to come to work ... After July 13 . . . and before August 2nd.
Although it appears from the foregoing that Galla requested in-
creased pay, nevertheless, he asked to be reinstated to his old job.
The suggestion of a 621/2-cent rate was Veselyy's and was clearly idle
talk. Galla did not refuse to return to his old job unless he was
given an increase in wages above that generally granted. The job
that Galla was offered paid only-52. cents an- Hour, whereas in his
DECISIONS AND ORDERS 431
former position he would have received 571/2 cents by reason of the
-5-cent general increase awarded by the respondent to all its em-
ployees upon the-reopening of its plant. We find that Galla was
not offered substantially equivalent employment and that his refusal
-to accept the respondent's offer of employment, not substantially
-equivalent to his former employment, was not a refusal of an offer
of reinstatement.
- August Schmaedeke. The respondent contends that Schmaedeke
refused an offer of reinstatement and is therefore not entitled to be
reinstated. Schmaedeke testified as follows : "I was called up one
time by Vesely and he called me about 11 o'clock and he wanted me
to be down there by noon, and I says, well, that was impossible, living
so far away, to be down there by noon, and if I did get there in the
afternoon it would take me so much time-we quit at five minutes to
-four-why, there wouldn't be much time to work that day any more.
And I asked him whether it would be all right the next morning
or if he had something later, and he says, `No."'
Q. He called you over the phone ?
A. He did.
Q. This was a telephone conversation?
A. Telephone, yes.
Q. How long does it take you to get down from where you
live to the plant?
A. Well, it would take you, two and a half, three hours, and
then, of course, you can't always make connections out there with
trains and I have no car.
Q. Do you want your job back at Western Felt Works?
A. Yes.
Under the circumstances, we do not feel that Schmaedeke acted
unreasonably in failing to report on that day. We find that August
Schmaedeke did not refuse an offer of reinstatement made by the
respondent.
Thomas Kosisek. The evidence establishes incontrovertibly that
Kosisek refused reinstatement because he was working elsewhere.
We find that Thomas Kosisek is not entitled to reinstatement. -
In its exceptions to the Intermediate Report, the respondent con-
tends that the Trial Examiner erred in finding that certain individuals
should be included among those offered reinstatement and awarded
back pay. They are: -
Anton J. Shalkowski. The respondent urges that Shalkowski was
not entitled to reinstatement and back pay because of his participation
in illegal acts and because he was confined in a hospital until the lat-
ter part of October 1937 and was unable to look for work and did not
apply for work until late in October. - •
432 NATIONAL LABOR RELATIONS BOARD
There is no evidence that Shalkowski participated in illegal acts.
While it is true that he was confined in a hospital and was unable
to apply for reinstatement until October, Shalkowski did then apply
and was told by the respondent that there was no work available.
The respondent made no showing that it failed to notify Shalkowski
to return to work because of his confinement in the hospital. Under
such circumstances, he must be considered as in the same position as
the remaining employees who were denied reinstatement. Shal-
kowski's confinement in the hospital does not preclude his being
awarded back pay equivalent to what he would have earned had he
not been refused reinstatement.
William Leban. The respondent claims that Leban was not entitled
,to reinstatement with back pay because Vesely had offered him another
job and he had refused it. According to Vesely's testimony, Leban
was offered a trucking job in place of the clerical job which lie pre-
viously held. As heretofore stated, it is not a refusal of an offer of
reinstatement for a person discriminated against to refuse employment
not substantially equivalent. We find that Leban did not refuse an.
offer of reinstatement.
Angelo Knazoich. The respondent contends that Knazoich was
offered a job, worked a day and quit, and, therefore, was not entitled
to reinstatement. While it is true that he worked for a day, it was
during the strike that he returned, and only upon the representation
of Jochene, a foreman, that the plant was in full operation and that
Knazoich's son and daughter would be hired if lie would return.
Knazoich went through the picket line to the hardening department
in which he had previously worked, and instead of finding the plant
in operation, found that only 4 out of 12 machines were running
"... I stood there," he testified, "and look around, nothing but a scab;
every machine, bing bang, bing bang." Unable to endure this situa-
tion which was humiliating to him, he went back on strike. -We find
that Angelo Knazoich was induced to come back to work by the
respondent upon representations which Knazoich soon learned were
untrue, and that Knazoich went back on strike. He retained his
status as a striking employee.
Joseph Javorsky. The respondent alleges that Javorsky refused a
job after the strike was over because he had a temporary job and did
not apply for reemployment until October 1937 and was, therefore,
not entitled to reinstatement. It is true that Javorsky had a tem-
porary position, but the evidence is clear that the respondent's only
offer of employment to Javorsky was its offer to all employees which
it made during the strike. He was not obliged .to accept this offer.
The-respondent's conduct,after• settlement of the strike 'foreclosed'the
requirement of individual applications. We find that the respondent's
contention is without merit.
DECISIONS AND ORDERS 433
Joseph Mack. The respondent argues that the fact that "Mack's tes-
timony cannot be believed because of the witness' impeachment and
contradictory statements," precludes him from being entitled to rein-
statement. Without determining whether his testimony deserved be-
lief, we find that the reasons advanced by the respondent are insuffi-
cient to deny Mack reinstatement.
The factors, upon which we based our finding that the employees
listed in the amended complaint were denied reinstatement because
of their active association with the T. W. O. C., are equally applicable
to and decisive of the cases of Benjamin Galla, August Schmaedeke,
Anton J. Shalkowski, William Leban, Angelo Knazoich, Joseph Ja-
vorsky, and Joseph Mack. We find that these men were denied rein-
statement on August 2, 1937, because of their active association with
the T. W. O. C.
D. The discharges
Victor Theriault and John Zidek. At the time Theriault and Zidek
went out on strike, they had been employees of the respondent for 14
and 5 years, respectively. They were efficient and industrious em-
ployees, according to the respondent's supervisory employees. During
the strike, they were on picket duty at the plant. Theriault, a picket
captain, was a member of the T. W. O. C. negotiating committee
which met with the representatives of the respondent in the confer-
ences terminating the strike. Both men were asked to return and did
return to work on August 16, 1937. On August 26 Theriault was
elected financial secretary, and Zidek was appointed steward of the
T. W. O. C. On September 11 David Vermilya, a clerk, who during
the strike drove to and from work at the plant in Vesely's automobile,
was'made foreman of all the cutting departments. Under him and in
direct supervision over Theriault and Zidek was Joe Czerwinski.
Vermilya revived certain rules of conduct that had long remained in
disuse. One such rule, effective as of September 16, was the require-
ment that straight-knife operators use hooks, "subject to suspension
for violation." Another rule, posted September 22, required em-
ployees to remain at their machines and forbade "needless conversa-
tion." According to Vermilya, department records of his employees
were kept and those relating to Theriault and Zidek disclosed that
they had received demerits for identical offenses on the same days,
beginning with September 24 and ending with September 30. Both
records also revealed that Vermilya considered the output of these
men for the period from September 20 to September 25 'as "very
poor."
On September 30 Theriault and Zidek received identical typewrit-
ten discharges setting forth that they had left their machines during
working hours on September 24 and 25, charging them with "poor
434 NATIONAL LABOR. RELATIONS BOARD
workmanship-proven by error in cutting felt" and with low produc-
tion, and accused them of "working carelessly and unsafely despite,
written instructions ... on September 29 and 30 particularly, work-
ing without safety hooks practically all day." Vermilya testified that
the practice of tendering written discharges was unusual. Errors in
cutting felt were not uncommon in the respondent's plant. According
to Vermilya, George Naxera, an employee, caused a very serious dam-
age without other punishment than demotion. It is also clear that
the alleged low production of Theriault and Zidek was ascertained
by checking production records against the records of work done
before the strike. The check does not take into account that the new
men taken on during and after the strike retarded production
substantially.
Working without hooks was a practice long in use at the plant.
Hooks could not be used on soft materials that would tear easily.
Discharge for violation of this rule directly contradicts Vermilya's
own notice that employees violating the rule would be subject to sus-
pension. No other employees were discharged in the period from
September 28 to October 3, according to Vermilya, yet he testified
there were others who did not use hooks :
Q. Now, on the occasions that you did notice that they were
not using hooks-I mean as to the persons that you did notice
who were not using hooks, did you discharge them?
A. I did not.
Q. Did you suspend them from work?
A. No, sir.
It is clear from the testimony that it had always been the practice
of the cutting-department employees to leave their machines during
working hours in order to obtain tools and for other reasons. This
practice did not result in either discharge or suspension in the case
of other employees. Vermilya was asked :
Q. Well, did you on some occasions see some of the men leave
their machines?
A. I did.
Q. Did you discharge those men?
A. No, sir.
Q. Did you suspend them?'
A. No, sir.
Vermilya checked the work of only Zidek and Theriault in deter-
mining their alleged inefficiency :
Q. You did not check the work of any other man working in
the same department as Zidek and Theriault at the time?
A. No, sir.
DECISIONS AND ORDERS - 435
Q. And you made no comparison between the work of Zidek
and Theriault and the work of other men doing similar jobs in
the same department at the time?
A. No, sir.
Q. And your conclusion and only conclusion after your check
was that the efficiency of Mr. Zidek and Mr. Theriault was less,
or was lower rather after the strike was over than it was prior
to the strike?
A. Correct.
Vermilya testified that Czerwinski "had complete charge of the
department in so far as assignment of work to the various operators
and to make sure that the work was done correctly ..." He
also testified that "on all these particular occasions I informed Joe
Czerwinski what was going on and told him to see that it didn't
happen again." However, the evidence shows that the respondent
did not ask Czerwinski until November 2 whether or not he gave
instructions to Theriault and Zidek about using hooks and leaving
their machines. Czerwinski also testified that he did not know the
reason for the discharge of these men either it the time that they
were discharged or even at the time he testified. Thus, the foreman
in charge of Theriault and Zidek was not consulted concerning a mat-
ter of which he would ordinarily have had the most direct knowledge.
This unusual procedure was not explained by the respondent. Czer-
winski considered Theriault "a very alert and intelligent operator"
and stated that "his work was all right as far as I could see." Coun-
sel for the Board, questioning Czerwinski, asked :
Q. This was a very unusual situation, was it not, the discharge?
A. It was a kind of surprise I guess you would call it, because
we were getting along there pretty good for a while.
Czerwinski never complained to Vermilya or Vesely about the work
of Theriault and Zidek.
We find that nothing Zidek and Theriault are charged with having
done warranted the extraordinarily drastic action of Vermilya or his
unusual procedure or was the reason for their discharge. The re-
spondent's action can only be explained as an attempt by the respond-
ent to rid itself of employees closely connected with a union whose
organizational activities it has so vigorously resisted. Under all the
circumstances, we find that Victor Theriault and John Zidek were
discharged because they joined and assisted the T. W. 0. C. and
engaged in concerted activities with other employees in the plant for
the purpose of collective bargaining and other mutual aid and
protection.
Stanley Dikines. Dikines had,been an employee of the respondent
for 18 years. His promotion record showed five pay increases. He
436 NATIONAL LABOR RELATIONS BOARD
went out on strike on June 8, picketed the plant, and remained out
until his reinstatement on August 17. On or about October 15 Har-
old Hanson, assistant foreman in direct supervision of Dikines, laid
him off for an indefinite period because "he had been giving me
considerable trouble coming in with. drink in his system ; he did not
take care whether he did his work right or wrong, so I give him an
indefinite layoff." In a report of the incident prepared a day or two
later, Hanson charged Dikines with rubbing up a small piece of felt
and spoiling another piece by failing to spray water on the felt and
apron. He also reported, "Have difficulty each night with this man
because he has been drinking before coming to work and shows the
effect of it. He also attempts to hold back production by reprimand-
ing his helpers for working too fast, Holds back carrying out my
orders or carries them out wrong." Faurot reinstated Dikines the
same day. In a report dated October 25 Dikines was charged with
having repeated the alleged offense of October 15. He was discharged
on October 26.
Hanson, appearing in behalf of the respondent, testified that, prior
to the strike, Dikines was a hardening-machine operator on the day
shift. Upon his return to work following the strike, he was placed
on the night shift. Although, according to Hanson, Dikines "was
capable, as capable as one of our best men . . . with that one
machine, that particular machine he was on," nevertheless, when he
was reemployed, "he kept going on and off, first one machine and
then another. We have to transfer the men around to different
machines especially on that shift." These transfers were made even
though there was work to be done on Dikines' machine. He was
rarely shifted to another machine prior to the strike. Dikines ex-
plained that this shifting to other machines and different helpers
was burdensome and resulted in some pieces of felt not coming out
smooth. Hanson testified that soft spots in the material were rather
common occurrences, attributable to any number of causes.
After Dikines returned to work, Vesely told him not to go across
the street, where the T. W. O. C. headquarters were located. Dikines
claims that Hanson gave Richard Liebig, a fellow employee, appli-
cation cards for membership in the Independent and that when
Dikines refused to sign one, Liebig took the card back to Hanson and
talked to him. Hanson is alleged to have told Dikines later that
"C. I. O. union no good." Dikines claims that thereafter he was
shifted from one machine to another. Hanson denied the statements,
but admitted that for a period Dikines was shifted frequently.
'Q. But in this period from October 15th on he was transferred
very often, was he not? - -
A: I should say yes.
DECISIONS AND ORDERS 437
A number of employees attributed anti-T. W. O. C. and pro-Inde-
pendent remarks to Hanson. These were in each instance denied.
Hanson did admit, however, that he told James Chylik, an employee,
"personally, I figure the C. I. O. is Communistic." Hanson could
only name one helper whom Dikines is alleged to have reprimanded
and whose production he is alleged to have held back, as charged
in the report of October 15. That person was Richard Liebig. Lie-
big, an employee of the respondent at the time of the hearing,
according to the list of employees received in evidence, 'was not called
upon by the respondent to testify.
The following is taken from the cross-examination of 'Hanson
concerning the alleged drunkenness of Dikines :
Q. What difficulty did you have each night with Mr. Dikines
because he had been drinking?
A. The man was drinking, coming into work, very dangerous.
Slipping around the floor, he might fall down and break his arm
or something ...
Q. And this happened each night?
A. Why, within two to three nights a week.
Q. Was he in such condition that he couldn't do his work?
A. He was not fit to do his work.
Q. Did you. send him home on those nights?
A. I did not.
Q. Wasn't it your duty to send him home if he was not fit to
do his work?
A. It was.
Q. Yet you did not; is that correct?
A. I did not.
Q. How long has this been going on, his coming to work unfit
to work 2 or 3 nights a week?
A. I guess it must have run on for about 4 or 5 weeks before
he was discharged.
Dikines denied the charge that he had been drinking on the re-
spondent's premises. It is difficult to believe that an able employee
of 18 years' standing should suddenly succumb to drink to the ex-
tent described above. Furthermore, it • taxes credulity to believe
that an employer would wait 4 or 5 weeks before discharging an em-
ployee who was drunk 2 or 3 nights a week and "slipping around the
floor" under dangerous conditions.
Hanson's absurd account of Dikines' drunkenness, the absence of
Liebig's testimony and that of other employees likely to have been
aware of Dikines' alleged flagrant misconduct, the admitted opposition
11784 L-39-vol 10--29
438 NATIONAL LABOR RELATIONS BOARD
of Hanson to the T. W. O. C. of which Dikines was a member, the
several pro-Independent statements made by Hanson, his solicitation
of memberships for the Independent , the refusal of Dikines to join the
Independent , the failure to reinstate Dikines to equivalent employ-
ment, and the shifting of Dikines to various machines to the detri-
ment of his work, fully support the allegations in the complaint that,
Dikines was discharged because of his union activities and because
he refused to join the Independent . We find that Hanson's testimony'
is discredited . We believe that the evidence justifies the finding that
Dikines would not have been discharged had he forsaken the T. W.
O. C. and joined the Independent . We find that, under all the cir-
cumstances , Stanley Dikines was discharged because he refused to join
the Independent.
James Chylile , Vladimir Peknik, and Steve Vihnicka . These men
had been in the respondent 's employ 3 months , 2 years, and 3 years,
respectively , were members of the T. W. O. C., and had good promo-
tion records . Chylik was laid off on June 2 and reemployed on
August 16. Peknik and Vihnicka went out on strike on June 8
and were reemployed on August 4 and July 28. The three were laid
off on September 29, 28, and October 15, respectively , allegedly because
of a curtailment of production . The record shows that at the time of
the lay-off individuals hired since the commencement of the strike
were retained in each of the departments in which Chylik , Peknik,
and Vihnicka were employed . The latter employees were old em-
ployees having greater seniority and normally would have been re-
tained in preference to the new men having no seniority status. No
evidence was introduced by the respondent tending to show that the..
ability of the three old employees was inferior to that of the new
employees retained.
Shortly after returning to work, Peknik was appointed shop stew-
ard of the T. W. O. C. Ralph Pope, an assistant foreman, said to
him, "Here, you didn't sign up with our Company union, to be
protect by the Company ." Peknik replied that he did not think that
he would sign up. Two weeks later, in the presence of Russell Ma-
honey, assistant foreman, Pope again broached the subject to Peknik,
who was engaged in looking for a mask to be used in his work : "Why
don't you want to sign up with our union? What do you think?
Isn't it good for you? . . . What the C . I. O. do for you if you
lose your job?" Peknik said, "Please give me a mask or I report
you to the office." He was laid off the following day. Thereafter,
Peknik asked Vesely for a transfer and was refused , whereupon Pek-
nik inquired concerning his seniority rights. Vesely replied that Pek-
nik would not have been laid off if he had come to work when he
received the notice of July 13.
DECISIONS AND ORDERS 439
Liebig, an employee, attempted to induce Chylik to sign an applica-
tion for membership in the Independent, but he refused. Hanson,
assistant foreman, who had authority to hire and discharge, asked
Chyfik if Liebig had been around with a membership card and also
said "he thought the company union would be a good thing to
join . . . the bosses would never give in to the C. I. 0." Chylik
told Hanson that he had returned the card to Liebig unsigned. There-
after, Hanson informed Chylik that "personally, he had nothing
against" him but he "had" to lay him off. Hanson testified that he
offered Chylik reemployment and Chylik refused to return to work.
The respondent contends that therefore Chylik is not entitled to
reinstatement. In view of his testimony as set, forth elsewhere herein,
we find Hanson's statement unworthy of credit.
For about 3 weeks before Vihnicka was laid off, "Bob," the foreman
in Department 13, tried to tell him about the "company union,"
that the "outside unions make some more strike," and that the Inde-
pendent dues were only 50 cents, whereas the T. W. 0. C. dues
were $1.00.
Each of these men refused to join the Independent, despite the
urgings of their superiors. Their testimony remains uncontradicted
upon the record. They applied for reinstatement after their dis-
charge and were refused. No evidence was offered by the respondent
to prove that these men were laid off in accordance with any seniority
ratings, as would ordinarily be the case where there are lay-offs due
to curtailment of production. In the absence of such evidence, in
view of the facts set out above, and inasmuch as persons employed
during the strike were retained after the lay-off of these men, without
any evidence of their superior ability, we find that Chylik, Peknik,
and Vihnicka were laid off because they refused to join the In-
dependent.
E. The domination of and interference with the Independent
Frank Bieber, claiming to be the directing genius of the Inde-
pendent in its inceptive stages, testified that prior to the strike of
June 8 he had spoken to several persons about forming an independent
union. When he returned to work on July 14, he immediately began
to lay the ground work for the formation of the Independent, and
received the cooperation of Bernard Bridgeford and William Liska,
supervisors. The employment of an attorney was the initial move,
which, according to Bieber, was "due to the fact that I was not
familiar with all of the phases of the Wagner Act, I did not want
to jeopardize the position of the organization, and the only thing
to do was to get a man who was familiar with those phases."
440 NATIONAI. LABOR RELATIONS BOARD
Through the recommendation of a friend of Bieber, R. A. Vasalle was
consulted and employed as counsel. The first discussion with Vasalle
was held on or about July 23 or 24. Immediately thereafter, the
Articles of Agreement were drawn and later signed on July 30, 1937,
by the organizers and directors. The organizers were Bieber, who was
named president; Bridgeford, financial secretary; Liska, treasurer;
William Herlehy, recording secretary; and Harold Larson, vice
president. A director was chosen from each department of the plant.
The Articles provided, among other things, that members should be
.employees of the respondent, that notices of meetings should be placed
,upon the respondent's bulletin boards in each department, and that
no one should be an officer or director of the Independent unless he
was an employee of the respondent. These provisions were amended
to permit officers and directors who had left the employ of the re-
spondent to retain their positions and to eliminate the posting of
notices on the bulletin boards of each department. General meetings
were held once a month.
Vasalle suggested that the Independent refrain from attempting
to bargain collectively until the "organization was more thoroughly
banded together." However, on or about September 15, representa-
tives of the Independent conferred with Henry Faurot concerning
improvements in sanitation and rest periods for employees. The
record fails to disclose the results of the conference. Later, an ar-
rangement was made to prevent employees from "spitting on the
floor." The Independent was called into conference by the respondent
on or about December 26 with reference to a 10-per cent wage cut
that the respondent proposed to put into effect. The Adjustment
Committee of the Independent succeeded in reducing the cut to 5
per cent for 30 days, the additional 5-per cent decrease to be post-
poned for a period of 30 days pending a change in business conditions.
The T. W. 0. C. was not informed or consulted by the respondent
concerning the wage cut.
The T. W. 0. C. excepted to the finding of the Trial Examiner
that the respondent had not dominated and interfered with the
formation and administration of the Independent. A review of the
record convinces us that the Trial Examiner erred in his finding.
The first indication that the respondent contemplated the forma-
tion of an employee representation plan was contained in its "Message
to Employees" of May 26, 1937. There the first seeds of the Inde-
pendent were sown in the minds of the employees. They were told
that the Act permitted them to deal directly with their employer
and that they could legally form their own employee representation
plan. What a union could do was couched negatively. What an
employee or employer could do, without dealing with a union, was
- DECISIONS AND ORDERS 441
stated affirmatively. The hint to the employees is obvious.'8 On May
27, the respondent announced that it would not permit solicitation
of organization memberships on the Company's premises. This rule
was not invoked against the Independent, although it is undisputably
clear that the representatives of the Independent thereafter solicited
memberships on the premises and that the respondent and its agents
were aware of that fact.
The respondent refused to bargain with the T. W. O. C. and on
June 8 appealed directly -to the employees in an attempt to frustrate
the efforts of the T. W. O. C. to negotiate in their behalf. Although
the appeal fell on many deaf ears, as evidenced by the occurrence of
the strike, nevertheless it was clear to the respondent's employees that
the respondent did not want an "outsider," that the employees would
fare better if they dealt directly with the Company, and that the
respondent considered employees able to make their own agreements.
With the respondent's position thus clearly transmitted to its em-
ployees, it would have been surprising had not a campaign thereafter
been initiated in behalf of an unaffiliated or inside organization. The
prolongation of the strike because of the continued refusals of the
respondent to bargain tended to destroy any resistance the employees
may have had to joining the Independent or shifting their allegiance
to it.
Supervisory employees of the respondent encouraged, promoted,
and fostered the Independent and employees, active in the Independ-
ent received greater pay increases than members of,the T. W: O. C.
occupying similar positions. We find that the evidence establishes
that William Herlehy, Bernard Bridgeford, Walter Kaminsky, Wil-
liam Olen, Engel Simons, Stazie Mezydlo, Emil Hamus, John Nelson,
William Liska, and Lafayette Withrow were among the supervisory
employees of the respondent. All were original organizers of the In-
dependent, and all with the exception of Engel Simons, were active
in soliciting memberships and collecting dues for the Independent.
Herlehy, Bridgeford, and Liska were respectively secretary, financial
secretary, and treasurer of the Independent. Herlehy, Mezydlo, Liska,
and Hamus received unusual pay increases when they returned to
work after the strike and Olen was made a foreman shortly after he
became active in the Independent. As assistant foreman these em-
18 ".. . the emphasis upon what the provisions of the Act do not purport to do, rather
than upon the positive principles and the rights which the Act establishes , serves to dis-
tort its true significance and to mislead readers of the leaflets with respect to employees'
rights under the Act, in contradiction of their avowed intent 'to prevent misunderstand-
ing.' The distribution by an employer of such leaflets among his employees constitutes
an attempt to circumvent the Act by interfering with his employees' right, unprejudiced
by the employer , to make up their own minds regarding self-organization ." Matter of
Mansfield Mills , Inc and Textile Workers Organizing Committee , 3 N L R. B 901.
442 NATIONAL LABOR RELATIONS BOARD
ployees, in the absence of their foremen , possessed the authority to
hire and discharge.
Harold Larson, vice president of the Independent , and Leo , Belan-
ger were among the original organizers and active in the affairs of
the Independent . Upon their return to work after the occurrence of
the strike , they received pay increases in excess of those awarded to
returning T. W. 0. C. members occupying similar positions.
The mere presence of supervisory employees at the helm of the In-
dependent would tend to induce other employees to become members
in order to guarantee to themselves the security of their positions.
Their identification with the leadership of the Independent is con-
vincing evidence of the Company 's participation in the control and
administration of the Independent . Beyond this , however , there is a
mass of uncontradicted testimony establishing clearly that these
supervisors applied direct pressure upon their subordinates in an ef-
fort to coerce them into joining the Independent . As early as June
7, 1937, C. F. Benson, a foreman having authority to hire and dis-
charge, not called upon by the respondent to testify , advised John T.
Browning, an employee : "You don't have to have the C. I. 0. here.
Why not have the company union and everything will be as before,
and possibly better ? The C . I. 0. isn't necessary and besides the
C. I. 0. is nothing but a Communistic red organization . . . You
will be sorry . This is your opportunity. If you don 't behave your-
self, you be sorry at a future date."
Benson told Christ Gylling on or about July 15, "Well, what do
you want to have to do with a Union like that for anyhow? . . . It is
only a Communistic organization . I thought you had better sense
than that . . . You get the boys together and talk this thing over
and come back to. work and call this thing off while there is still
time . . . Why don't you have your own union? " Benson further
told Gylling , "They could do more than the C . I. 0. could do for us."
Gylling asked him if he had anything to suggest and Benson replied,
"Well, get your own union in there."
Gottfried Krempusch , an employee , testified that in September
1937 Ralph Pope, a clerk checking production , repeatedly asked him
to join the Independent and threatened to inform the personnel man-
ager in the event he refused . Although this solicitation was in the
presence of William Robinson , assistant foreman having authority to
hire and discharge in the absence of the foreman, Pope failed to
deny the testimony and Robinson did not testify . Arthur Davis, an
assistant foreman, also told Krempusch to join the Independent.
Krempusch 's testimony is substantiated by the fact that he joined the
Independent against his wishes and paid dues to it because he thought
he had to do so in order to retain his job. We find that these coercive
statements were made to Krempusch.
DECISIONS AND ORDERS 443
Steve Vihnicka, an employee, testified that "Bob, a daytime foreman
of Department 13," whose full name does,not appear, asked him to
join the Independent. The respondent made no attempt to contra-
dict this testimony. We find that the foreman solicited Vihnicka to
join the Independent.
George Wilson testified that he saw Supervisors Joseph Cerny and
John Nelson soliciting Independent memberships during working
hours. This testimony was not refuted. We find that these super-
visors solicited Independent membership during working hours.
Christ Gylling testified that on July 7 Joseph Marganelli, a , fore-
man having authority to hire and discharge, told him that `the re-
spondent intended to employ strikebreakers and form a company
union. Although he admitted a conversation with Gylling, Mar-
ganelli denied the statement. It was clear that Marganelli was act-
ing in the respondent's behalf at the instance of the respondent and
that he was one of the foremen who had been instructed to urge
employees to return to work. Marganelli's testimony is so replete
with contradictions that we credit the statement of Gylling.
Charles Vanis, an assistant foreman, having authority to hire and
discharge in the absence of the foreman, admitted on cross-examina-
tion, after previous denials, that just before the strike he asked Frank
Masek, "Why don't you fellows start a company union?" During
the strike, Vanis told him, "I think we would be better off if we would
support our own union . . . I don't think the company will give in
to the C. I. 0."
John Dragozetich testified that about 5 weeks after the strike
began Harold Hanson, an assistant foreman having authority to
hire and discharge, asked him to return to work, saying, "There
won't be any union, you see, there. We going to make some union
inside." He is also alleged to have said the Company would not
sign with the C. I. 0. Hanson admitted that he was at the home
of Dragozetich soliciting his return to work, but denied the state-
ments attributed to him. He "did not recall" whether he said the
Company would not sign with the C. I. 0. He insisted that the
C. I. 0. was not mentioned. However, Jochene, a foreman, also
present at the conversation, testified that he heard Hanson say that
the C. I. 0. was "nothing but a lot of Communists anyway." Han-
son admitted that he made this statement to an employee other than
Angelo Knazoich. We find that Hanson made the statements at-
tributed to him.
Michael Conciatore testified that Marganelli, foreman, told him
that he wanted "to fix the independent union himself, because the
Company wouldn't recognize the C. I. 0." The foreman denied this
statement, but his testimony is such that it is not worthy of credit.
He stated that his visit to Conciatore was merely a "social call .. .
444 NATIONAL LABOR RELATIONS BOARD
just to see how they were getting along." It developed, however,
that he possessed a list of employees in his department furnished
him by the respondent for the purpose of soliciting the return of
striking employees. Conciatore's testimony was corroborated by his
wife. He joined the- Independent unwillingly and only because he
was afraid of losing his job. We find that Marganelli. made the
above statements for the purpose of coercing Conciatore into joining
the Independent.
The respondent contends that it had no knowledge of the solicita-
tion of Independent memberships by its supervisors and that, there-
fore, the respondent cannot be held responsible for their conduct.
Such knowledge is-not essential to establishing an employer's unfair
labor practices. However, the evidence is conclusive that the
respondent had knowledge of the activities of its supervisors. It is
clear that a great deal of solicitation by them was done on company
property and during working hours. Bridgeford, a supervisor,
solicited memberships in front of the time clock between 4 and 5
o'clock day after day in July. Many employees were solicited in
their departments during working hours. According to Bridge-
ford's own testimony, he and Liska copied from 350 to 400 names
from time cards while standing in front of the time clock. Vesely
admitted that if anyone spent more than a few minutes at the clock
he would have been noticed by some official of the respondent.
Notices of dances and meetings, sponsored by the Independent,
were posted on the respondent's bulletin board. Active Independ-
ent members were receiving unusual pay increases. In December,
the respondent completely disregarded the T. W. 0. C. and dealt
only with the Independent concerning the proposed wage cut. Al-
though still refusing to make a contract with the Independent or
any union, the respondent in its conferences exhibited a much friend-
lier attitude toward the Independent than it had ever displayed to-
ward the T. W. 0. C. The Independent appears not to have been
confronted with a problem concerning recognition such as arose
when the T. W. 0. C. sought to bargain with the respondent. The
employees had a definite impression that the Independent was di-
rectly connected with the management.19 Krempusch and Concia-
tore, employees, both joined and paid dues to the Independent only
because they feared they would lose their jobs. As this impression
of the respondent's interest in the Independent became more pro-
nounced, the membership in the Independent proportionately
increased.
The Independent assumed that its organization was acceptable to
the respondent and conformed to its desires. It provided in its
19 William Liska, a supervisor, wrote to Vesely in behalf of Benjamin Calla • He has
lost all faith in the C. I. 0. and is willing to join our organization if you would only take
him back."
DECISIONS AND ORDERS 445
Articles of Agreement that notices of meetings were to be posted on
the bulletin boards of the respondent. This provision was subse-
quently amended after its implications were brought to the attention
of the Independent's counsel. The provision in the Articles that
officers of the Independent shall be employees of the respondent was
likewise amended; but even in its amended form '20 the provision vests
ultimate control of the Independent in the respondent. Because it
can rid itself of Independent leaders active in the bargaining agency
by discharging them, the respondent can circumvent bona fide em-
ployee demands.
To summarize, the respondent, by its notices and through its super-
visors, proselyted on behalf of an inside union as soon as it became
aware of the T. W. O. C. activities in the plant. The respondent by
its unfair labor practices prolonged the strike, and, upon the plant's
reopening, the Independent, fostered by the pro-Independent propa-
ganda of the foremen soliciting the return of striking employees,
stirred to life. The Articles of Agreement showing an assumption of
company cooperation and the belief of the employees that the Inde-
pendent possessed the respondent's sanction point to a company con-
nection with the organization. The Independent was insignificant as
a bargaining factor, despite the fact that it received preferred treat-
ment. It alone was notified of the proposed pay cut. It alone was
permitted to solicit memberships on company property during work-
ing hours. It alone had no problem of recognition. Its active mem-
bers received unusual pay increases. Among the Independent's
leaders were the respondent's supervisors. These and other super.
visory employees urged their subordinates to join the Independent,
in some instances supplementing their solicitation with threats. Sev-
eral supervisors collected dues in their respective departments. The
activities of supervisors dominated the formation of the inside union
and gave it the impetus necessary to assume a formal structure. These
facts show clearly that the respondent fostered the Independent. By
intimidating its employees into joining the Independent, by solicit-
ing membership and permitting and encouraging solicitation of mem-
bership in the Independent, and by its supervisors, serving as officials
in the Independent, the respondent exercised authority over the Inde-
pendent and directed its activities, thereby dominating its administra-
tion.
On the basis of the foregoing facts, we find that the respondent
sponsored and dominated the formation of the Independent and
20 Board Exhibit No . 25 In part reads as follows : "In the event the officers and/or
directors be discharged or leave the employ of the Western Felt Works , individually or
as a group through any misunderstanding with the aforesaid Company, while performing
their duties as officers and/or directors of the Independent Union of Western Felt Work-
ers the same shall retain their offices as executives and/or directors until the second
(2nd) Tuesday of the following January "
446 NATIONAL LABOR RELATIONS BOARD
thereafter dominated its administration and contributed support to it.
We further find that the respondent interfered with, restrained, and
coerced its employees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the' respondent de-
scribed in Section I above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and have
led and tend to lead to labor disputes burdening and obstructing com-
merce 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 Independent Union of
Western Felt Workers and has contributed support to it. In order to
effectuate the policies of the Act and free the employees of the re-
spondent from such domination and interference, and the effects
thereof, which constitute a continuing obstacle to the exercise by the
employees of the rights guaranteed them by the Act, we will order
the respondent to withdraw all recognition from the Independent
as representative 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 conditions of work,
and to disestablish it as such representative. We will also order the
respondent to bargain collectively with the T. W. 0. C., upon request,
and, if understandings are reached, to embody such understandings
in a signed agreement upon request. We will further order the re-
spondent to post notices in its plants stating that its employees are
free to become or remain members of the T. W. 0. C. and that the
respondent will not discriminate against any employee because of
such membership.
We have found that the employees listed in Appendix A and Ap-
pendix B ceased work on June 8, 1937, as a consequence of the re-
spondent's unfair labor practices and that on August 2, 1937, the re-
spondent discriminated against them in regard to their hire and
tenure and terms and conditions of employment. We shall, therefore,
order the respondent to offer reinstatement to their former or sub-
DECISIONS AND ORDERS 447
stantially equivalent positions to all the striking employees listed
in Appendix A and Appendix B, except Frank R. Radke, and to give
them, including Frank R. Radke, back pay. The offer of reinstate-
ment shall be without prejudice to their seniority and other rights and
privileges. Such reinstatement shall be effected in the following
manner :
All persons hired after June 8, 1937, the date of the commencement
of the strike, shall be dismissed, if necessary to provide employment
for those to be offered reinstatement. If, even after this is done,
there is not;-by reason of a reduction in the force of employees needed,
sufficient employment immediately available for the remaining em-
ployees, including those to be offered reinstatement, all available po-
sitions shall be distributed among such remaining employees, in
accordance-with the respondent's usual method of reducing its force,
without discrimination against any employee because of his T. W.
0. C. affiliation or activities, following a system of seniority to such
extent as has heretofore been applied in the conduct of the respond-
ent's business . Those employees remaining after such distribution,
for whom no employment is immediately available, shall be placed
upon a preferential list prepared in accordance with the principles
set forth in the previous sentence, and shall, thereafter, in accordance
with such list, be reemployed in their former or substantially equiv-
alent positions as such employment becomes available and before
other persons are hired for such work.
The respondent shall make payment to each of the employees
ordered to be offered reinstatement an amount equal to that which
he would have earned as wages during the period from August 2,
1937, to the date of the offer of reinstatement,, or placement on the
preferential list, less his net earnings 21 during that period, had the
respondent, on August 2, 1937, reinstated the employees listed in Ap-
pendix A and Appendix B in accordance with principles set forth
in the preceding paragraph. We will order that the respondent give
back pay to Frank R. Radke for the period from August 2, 1937, to
November 5, 1937, the date on which he secured his present employ-
ment elsewhere, computing the amount of his back pay in the manner
set forth in the preceding sentence.
Even if we were to assume that the respondent's denial of rein-
statement to the striking employees listed in Appendix A and Ap-
xi By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with seeking work or working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Unton, Local 2590, 8 N. L. R. B 440. In addition
to deducting net earnings , there should also be deducted , as hereinafter provided , monies
received by an employee for work performed upon Federal, State, county, municipal, or
other relief projects during the period for which the respondent is under obligation to pay
such employees back wages
448 NATIONAL LABOR RELATIONS BOARD
pendix B was not, as contended by the respondent, an unfair. labor
practice, we would nevertheless under the circumstances award rein-
statement and back pay to these employees in the manner set forth
above. The strike having been caused by the unfair labor -practices
of the respondent, the ordinary right which it had to select its em-
ployees became "vulnerable," and-any refusal by the respondent of a
request made by the striking employees for reinstatement was at all
times subject to such order as the Board, in effectuating the purposes
and policies of the Act, might make directing the respondent to rein-
state said employees, to dismiss persons hired since, and not in its
employ at, the commencement of the strike, for the purpose of making
positions available for such reinstatement, and to compensate such
striking employees for any loss of wages sustained by virtue of the
refusal.22 The striking employees desired to return to work but were
denied reinstatement by the respondent. Assuming that the respond-
ent's only reason for denying them reinstatement was that their jobs
were occupied by strikebreakers, and assuming that a denial of rein-
statement on this ground only was not a violation of Section 8 (3) of
the Act, nevertheless the whole situation was brought about by the
respondent's unfair labor practices in refusing to bargain collec-
tively with the T. W. 0. C. At the time the striking employees
offered to return to work, the question as to whether the respondent
would itself reinstate employees whose work had ceased as a conse-
quence of unfair labor practices or await an order of this Board
requiring it to do so reposed entirely in the judgment of the respond-
ent. Where, as here, employees who cease work as a consequence of
unfair labor practices offer to return to work, without requiring as
a condition that the employer cease the unfair labor practices which
caused them to cease work, and the employer refuses to permit them
to return to work, thereby depriving the employees of their jobs and
attendant earnings until this Board issues a remedial order, we are of
the opinion that the policies of the Act will best be effectuated by
requiring that in addition to reinstatement, the employer pay back
pay to the employees from the date on which they offered to return to
work.
Since we have found that the discharge of, and subsequent refusal
to rehire, Victor Theriault, John Zidek, and Stanley Dikines were
based on their T. W. 0. C. affiliation and that the lay-off of James
22Black Diamond Steamship Coip. v. National Labor Relations Board, 94 F. ( 2d) 875,
cert den. May 23, 1938, 304 U. S. 579; enforcing order in Mattoi of Black Diamond
Steamship Corporation and Marine Engineers' Beneficial Association , Local No. 33, 3 N. L.
R B. 84; National Labor Relations Board v . Remington Rand , Inc, 94 F ( 2d) 862, cert.
den May 23 , 1938, 304 U. S 576; Matter of MoKaig-Hatch, Inc. and Amalgamated Asso-
ciation of Iron, Steel, and Tin Workers of North America, Local No 1139, 10 N L R B 33;
Matter of Douglas Aircraft Company, Inc and United Automobile Workers of America,
International Union, Douglas Local No 214; Matter of Douglas Aircraft Company, Inc and
Local 311, International Association of Machinists , 10 N. L. R. B. 242.
DECISIONS AND ORDERS' 449
Chylik, Vladimir Peknik, and Steve Vihnicka was caused by their
refusal to join the Independent, we will order the respondent-to offer
them reinstatement in the same manner as the employees listed in
Appendix A and Appendix B and to make them whole -for any loss of
pay they have suffered by reason of their respective discharges or
lay-offs by payment to each of them of a sum equal to the amount
which he normally would have earned as wages from the date of his
discharge to the date of the offer of reinstatement, less his net earn-
ings 23 during that.period.
The Trial Examiner found that Santa Giannone, Frank Malenchik,
Kenneth. Stepps, Ann Podbelsek, Tony Barone, and -Raymond Wisin-
ski- had been laid off prior to the strike and were not entitled to rein-
statement and back pay. The T. W. O. C. excepted to this finding.
Apparently, through inadvertence, the Trial Examiner omitted frorn
this list the names of John Seroczinski, who testified, and George
Domrese and Luther J. Bergstrom, who did not testify. Ann Podbel-
sek, absent because of illness, was the only one of the above nine who
was not laid off because of curtailment of production. The respond-
ent at no time took the position that these nine persons were not em-
ployees but, in fact, treated them in all respects the same as the strik-
ing employees. They were T. W. O. C. members and active in the
strike. They applied for reinstatement and were told that they would
be reinstated when work was available. As these employees were only
laid off before the strike, as distinguished from being discharged, we
deem it fair to infer that increased production would have resulted
in their reemployment. The mere fact that they were not physically
engaged in work at the time of the strike does not affect their employ-
ment status under the Act.24 We find, therefore, that these nine per-
sons retained their employee status and are entitled to reinstatement
and back pay, along with the others listed in Appendix A, in the man-
ner provided for hereinabove. Since, however, the Trial Examiner
found that six of these persons (all named in Appendix B) and Ben-
jamin Galla were not discriminated against and did not recommend
their reinstatement, we will exclude from the computation of their
back pay the period from March 15, 1938, the date of the Intermediate
Report, to the date of the Order herein. This is in accordance with
our rule that the respondent could not have been expected to reinstate
employees refused reinstatement after it received the Intermediate
Report recommending the dismissal of the complaint as to these seven
employees.25
23 See footnote 21, supra.
24 See Matter of Euehne Manufacturing Company and Local No. 1791 , United Brother.
hood of Carpenters and Joiners of America, 7 N L. R. B 304 ,
25Matter of E R. Haffelfinger Co, Inc and United Wall Paper Crafts of North America,
Local No 6, 1 N L R. B. 760.
450 NA'T'IONAL LABOR 1RF.LATIONS BOARD
The question is raised by the record whether the respondent should
be permitted to deduct from the back pay due under our Order monies
received by an employee for work performed upon Federal, State,
county, municipal, or other relief projects during the period for which
the respondent is under obligation to pay such employee back wages,
In so far as the employee receives remuneration for such work during
periods when he would otherwise have been working for the respond-
ent, it would not seem necessary, in restoring him to the status quo, to
require the respondent to reimburse him in such amounts. Neverthe-
less, to hold that the losses accruing from the respondent's unfair
labor practices must be borne by the government or governments
financing the work-relief project would not effectuate the policies of
the Act. We shall, therefore, order the respondent to deduct such
sums from the amounts otherwise due the employees and to pay such
deductions over to the appropriate fiscal agency of the Federal, State,
county, municipal, or other government or governments, which sup-.
plied the funds for the work-relief project.
The record shows that the respondent has treated certain striking
employees who have already been reinstated as if they were newly
employed without the seniority and other rights and privileges which
they enjoyed prior to the strike. In order to effectuate the policies
of the Act, we shall order the respondent to restore to all striking
employees who have already been reinstated their seniority and other
rights and privileges.
The respondent excepts to the findings of the Trial Examiner fliat,
certain employees, who did not testify at the hearing but who were
included in the amended complaint, were "entitled to reinstatement
and back pay to the extent which supplementary proceedings may de-
termine according to the principles established in this report." The
record shows, however, that George Batka, Walter Kosinski, Tom
Connors, William G. Baptist, Henry G. Nissen, James Bala, Ann
Hornick, Anton Novak, Frank Plesko, John Daniels, George Dom-
rese, and Luther J. Bergstrom were members of the T. W. O. C. in
the employ of the respondent, that they went out on strike and were
denied reinstatement on August 2, 1937. They will be included in
our order of reinstatement of employees with back pay.26 Their
names are listed in Appendix A.
The respondent takes exception to the failure of the Trial
Examiner to find that certain employees had participated in threats
or acts of violence. We find the evidence insufficient to support such
a finding.
The respondent excepts to the failure of the Trial Examiner to
find "as a principle of reinstatement of former employees not rehired
26 See Matter of Kuehne Manufacturing Company and Local No. 1791, United Brother.
hood of Carpenters and Joiners of America , 7 N. L R B 304.
DECISIONS AND ORDERS 451
after the strike that said employees in order to be eligible for rein-
statement and back pay must have made genuine and bona fide at-
tempts to secure employment elsewhere in order to mitigate respond-
ent's liability for back pay." We find 'this contention to be without
merit.
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 Organizing Committee, Western Felt Local,
and Independent Union of Western Felt Workers are labor organi-
zations within the meaning of Section 2 (5) of the Act. `
2. All the respondent's production employees, excluding super-
visory and office clerical employees, salesmen, chemists, technical en-
gineers, draftsmen, and truck drivers, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
3. Textile Workers Organizing Committee, Western Felt Local,
was on June 1, 1937, and at all times thereafter has been the ex-
clusive representative of all the employees in such unit for the pur-
poses of collective bargaining within the meaning of Section 9 (a)
of the Act.
4. By refusing to bargain collectively with Textile Workers Or-
ganizing Committee, Western Felt Local, as the exclusive representa-
tive of its employees in the appropriate unit, the respondent has en-
gaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (5) of the Act.
5. By dominating and interfering with the formation and admin-
istration of, and by contributing support to the Independent Union
of Western Felt Workers, the respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (2)
of the Act.
6. By discriminating against Victor Theriault, John Zidek, Stanley
Dikines, James Chylik, Vladimir Peknik, Steve Vihnicka and the
employees named in Appendix A and Appendix B in regard to
their hire and tenure of employment and thereby discouraging mem-
bership in the Textile Workers Organizing Committee, the respond-
ent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (3) of the Act.
7. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
452 NATIONAL LABOR RELATIONS BOARD
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
9. The respondent , by refusing to reinstate Thomas Kosisek, has
not engaged in an unfair labor practice within the meaning of Sec-
tion 8 ( 3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) -of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Western Felt Works, and its officers, agents, successors, and as-
signs shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the ad-
ministration of the Independent Union of Western Felt Workers, or
the formation or administration of any other labor organization of
its employees, and contributing financial or other support to the In-
dependent Union of Western Felt Workers, or to any other labor
organization of its employees ;
(b) Recognizing the Independent Union of Western Felt Workers
as the representative of any of the employees for the purpose of deal-
ing with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of work;
(c) Discouraging membership in Textile Workers Organizing
Committee, Western Felt Local, 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 or tenure of employment or any term or condition
of their employment;
(d) Refusing to bargain collectively with Textile Workers Organ-
izing Committee, Western Felt Local, as the exclusive representative
of its production employees, excluding supervisory and office clerical
employees, salesmen, chemists, technical engineers, draftsmen, and
truck drivers,
(e) In any other manner interfering with, restraining or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Withdraw all recognition from the Independent Union of
Western Felt Workers as the representative of any of its employees
DECISIONS AND ORDERS 453
for the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or condi-
tions of work, and completely disestablish the Independent Union of
Western Felt Workers as such representative;
- (b) Upon request, bargain collectively with the Textile Workers
Organizing Committee, Western Felt Local, as the exclusive repre-
sentative of its production employees, excluding supervisory and
office clerical employees, salesmen, chemists, technical engineers,
draftsmen, and truck drivers, in respect to rates of pay, wages, hours
of employment, and other conditions of employment, and, if an
understanding, is reached on such matters, embody said understand-
ing in a signed agreement;
(c) Offer to Victor Theriault, John Zidek, Stanley Dikines, James
Chylik, Vladimir Peknik, Steve Vihnicka and the employees named
in Appendix A, except Frank R. Radke, and in Appendix B imme-
diate and full reinstatement to their former positions, without preju-
dice to their seniority and other rights and privileges, in the manner
set forth in the section entitled "Remedy" above, placing those em-
ployees for whom employment is not immediately available upon a
preferential list in the manner set forth in said section, and there-
after, in said manner, offer them employment as it becomes avail-
able ;
(d) Make whole the employees named in Appendix A, except
Benjamin Galla and Frank R. Radke, for any loss of pay they may
have suffered by reason of the respondent's refusal to reinstate them
on August 2, 1937, and thereafter, by payment to each of them re-
spectively of a sum of money equal to that which each would have
earned as wages during the period from. August 2, 1937; to the date
of the offer of reinstatement, or placement on the preferential list,
less his net earnings,27 if any, during said period, had the respondent
reinstated him on August 2, 1937, in the manner provided in the
preceding paragraph, provided that the respondent shall deduct from
the back pay due each employee a sum equal to that received by such
employee for work done in Federal, State, county, municipal, 'or other
relief project during the period for which back pay is due him under
this Order, and shall pay any such amount deducted to the appro-
priate fiscal agency of the Federal, State, county, municipal, or other
government financing such relief project;
(e) Make whole Frank R. Radke for any loss of pay he may have
suffered by reason of the respondent's refusal to reinstate him on
August 2, 1937, and thereafter, by payment to him of a sum of money
equal to that which he would have earned as wages during the period
from August 2 to.November 5, 1937, the date on which he obtained
n See footnote 21, supra.
147841-39-vol. 10-30
454 NATIONAL LABOR RELATIONS BOARD
his present employment elsewhere, less his net earnings 28 during said
period, had the respondent reinstated him on August 2, 1937, in the
manner provided in paragraph 1 (c) above, provided that the respond-
ent shall deduct from the back pay due him such a sum equal to
that received by him. for work done in Federal, State, county, munici-
pal, or other relief project during the period for which back pay is
due him under this Order, and shall pay any such amount deducted to
the appropriate fiscal agency of the Federal, State, county, municipal,
or other government financing such relief project;
(f) Make whole Victor Theriault, John Zidek, Stanley Dikines,
James Dikines, James Chylik, Vladimir Peknik,=and Steve Vihnicka
for any loss of pay they may have suffered by reason of this discharge
or lay-off, by payment to each of them respectively of a sum of 'money
equal to that which he would have earned as wages during the period
from the date of his discharge or lay-off to the date of the offer of
reinstatement or placement on the preferential list, less his net earn-
ings,228 if any, during said period, had the respondent reinstated him
on August 2, 1937, in the manner provided in paragraph 1 (c) above
and had the respondent not discriminatorily discharged' or laid him
off, provided that the respondent shall deduct from the back pay due
each employee a sum equal to that received by such employee for work
done in Federal, State, county, municipal, or other relief project during
the period for which back pay is due him under this Order, and shall
pay any such amount deducted to the appropriate fiscal agency of
the Federal, State, county, municipal, or other government financing
such relief project;
(g) Make whole Benjamin Galla and those employees named in
Appendix B for any loss of pay they may have suffered by reason
of the respondent's refusal to reinstate them on August 2, 1937, and
thereafter, by payment to each of them respectively of a sum of money
equal to that which he would have earned as wages during the period
from August 2, 1937, to March 15, 1938, the date of the Intermediate
Report of the Trial Examiner, and from the date of this Order to the
date of the offer of reinstatement or placement on the preferential list,
less his net earnings,211 if any, during said periods, had the respondent
reinstated him on August 2, 1937, in the manner provided in para-
graph 1 (c) above; provided that the respondent shall deduct from
the back pay due each employee a sum equal to that received by such
employee for work done in Federal, State, county, municipal, or other
relief project during the period for which back pay is due him under
this Order, but the respondent shall pay any such amount deducted to
the appropriate fiscal agency of the Federal, State, county, municipal,
or other government financing such relief project ;
28 See footnote 21, supra.
DECISIONS AND ORDERS 455
(h) Restore to the employees who went on strike on June 8, 1937,
and who have already been reinstated , their seniority and other rights
and privileges ;
(i) Post immediately in conspicuous places in each department of
the respondent 's plant notices , stating: ( 1) that the respondent will
cease and desist as pr( vided in paragraphs 1 (a), (b), (c ), (d), and
(e) of this Order; ( 2) that employees are free to remain or become
members of Textile Workers Organizing Committee , Western Felt
Local, and that the respondent will not discriminate against any em-
ployee because of such membership ; and (3 ) that the respondent with-
draws all recognition from the Independent Union of Western Felt
Workers, as a representative of any of its employees , and completely
disestablishes it as such representative;
(j) Maintain such notices for a period of at least sixty (60) con-
secutive days from the date of posting;
(k) Notify the Regional - Director for the Thirteenth Region in
writing, within ten (10 ) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the allegations of the complaint that
the respondent has engaged in an unfair labor practice within the
meaning of Section 8 ( 3) of the Act by refusing to reinstate Thomas
Kosisek be , and they hereby are, dismissed.
APPENDIX A29
Bala, James
Baptist, William G.
Batka, George
Bergstrom, Luther J.
Boksa, John
Browning, John T.
Bruhl, Benjamin N.
Calzaretta, Dominick
Citek, Josephine Petras
Connors, Tom
Crossin, Frank
Daniels, John
Domrese, George
Dowiatt, Alex
Dragozetich, John
Dye, Charles V.
Fredette, Louis, Jr.
Fredette, Louis, Sr.
Gajeski, Alex
Galla, Benjamin
Gylling, Christ
Habiger, Alice
Hoda, John
Hornick, Ann
Imperl, Fred
Javorsky, Joseph
Jordan, Frank
Kemic, Rudy
Knazoich, Angelo
Kosinski, Walter
Krajczynski, Celia
Kubelka, John
Kyncl, Jerry
Leban, William
Machacek, John
Mack, Joseph
w There are variations between the spellings of the names as listed here and as listed
in the amended complaint and in the various exhibits in which they are contained.
456 NATIONAL
Masek, Frank
Matousek, Lillian
Mensik, John
Musso, Alex
Nevsimal, Frank
Nissen, Henry G.
Novacek, Erwin
Novak, Anton
Ostrenga, Tillie
Petras, Hilda
Petras, Joseph, Jr.
Plesko, Frank
Polodna, Robert
Potts, Regina
Prusik, Albert
Radke, Frank R.
Rahn, Carl
Barone, Tony
Giannone, Santa
Malenchik, Frank
LABOR RELATIONS BOARD
Schinaedeke, Emil
Schmaedeke, August
Schweiger, John
Seroczinski, John
Shalkowskl, Anton J.
Swiadek, Anthony J.
Szerwin(ski) (t), Helen
Tratar, John, Jr.
Treahy, William J.
Troha, Joseph
Verzin, Ernest_ J.
Wanat, Edward
Wrlak, Mrs. Mary
Zalimas, hasty
Zeman, Jennie
Zrazik, Peter
APPENDIX B 30
Podbelsek, Ann
Stepps, Kenneth
Wisinski, Raymond
°There are variations between the spellings of the names as listed heic and as listed
in the amended complaint and in the various exhibits in which they are contained.