Plymouth Finishing Co., Inc.

In the Matter of PLYMOUTH FINISHING Co., INC. and TEXTILE W6AK ERs UNION OF AMERICA (C. I. 0.) Case No. C-207.-Decided April 6,194 Jurisdiction : textile finishing industry. Unfair Labor Practices - Intei Terence, Restraint. and Coercion: anti-union statements ; urging employees not to join union under penalty of discharge ; soliciting membership in rival oigmization; granting unsolicited wage bonus during union's organizing cam- paign ; causing striking employees to return to work. Discrimination: discharge of two employees for union activity Remedial Orders : discharged employees ordered reinstated and awarded back pay. - DECISION AND ORDER On' January 25, 1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and that it take cer- tain affirmative action, as set forth in the copy of the Intermediate Report'annexed hereto. Thereafter, the respondent filed exceptions to the Intermediate Report. The Board has considered the rulings made by the Trial Examiner at the-hearing-and finds that no-preju- dicial error was committed. The rulings-al;e hereby affirmed. The Board has considered the Intermediate Report, the respondent's exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders ithat the respondent, Plymouth Finishing Co., Inc., Fall River, Massachusetts, and its officers, agents, successors, and assigns, shall: - 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of Amer- ica (C. I. 0.) or in any other labor organization of its employees, by 48 N L. R. B., No. 112. 946 PLYMOUTH 'FINISHING CO ., INC. 947 discharging or refusing to reinstate any of its employees or otherwise discriminating in regard to their hire or tenure of employment or any term of condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing, and to engage in concerted 'activities for the purpose of collective bargaining or other mutual aid or protection , as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Joseph Soares Da Silva and Manuel Thomas Froias immediate and full reinstatement to-their former or substantially- equivalent positions , without prejudice to their seniority and other rights and privileges; (b). Make whole Joseph Soares Da Silva ' and Manuel Thomas Froias for any loss of pay they have suffered by reason of the respond- ent's discrimination against them, by payment to each of them of a sum' of money equal to the amount which he would normally. have .earned as wages during the period from the date of his discrimina- tory discharge to the date of the respondent 's offer of reinstatement, less his net earnings during that period; (c) Post immediately in conspicuous places throughout its plant at Fall River, Massachusetts , and maintain for a period of at 'leatt sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b), of this Order; ( 2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the responden't's employees are free to become and remain members of Textile Workers Union of America ( C. I. 0.), and that the respondent will not discriminate against any employee because of membership in, or activities on behalf of, that organization; (d) Notify the Regional Director for the First Region in writing within ten (10) days ' from the date of this Order what steps the respondent has taken to comply herewith. INTERMEDIATE REPORT Mr. Thomas H. Ramsey, for the Board. Mr. Alfred 6'. Sherwin, of Fall River Massachusetts, for the respondent. Mr. Mariano S. Bishop, of Fall River, Massachusetts, for the Union. STATEMENT OF THE CASE Upon a charge duly filed by Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, herein called the Union, the National 521247-43-vol. 48-61 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Relations Board, herein called the Board, by the Regional Director for the First. Region (Boston, Massachusetts), issued its complaint dated November 24, 1942, against Plymouth Finishing Co., Inc, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notices of hearing thereon, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance, that the respondent: (1) since on or about March 1, ]942, interfered with, restrained, and coerced its employees by (a) interrogating employees concerning their union affiliations, (b) encouraging its employees to become members of the American Federation of Labor, (c) disparaging and expressing disapproval of the Union, (d) referring to union members as "agitators", (e) threatening to dis- charge emp'oyees if they joined the Union, and (f) urging striking employees to return to work with the promise of wage increases and vacations with pay while it knew they were represented by the Union: and (2) discharged and thereafter refused to reinstate Manuel Thomas Froias and Joseph Soares Da Silva because of their membership in or assistance to the Union, or because of other concerted actin ities for the purpose of collective bargaining or other mutual aid or protection. In its answer dated November 30, 1942, the respondent admitted the allegations of the complaint as to the nature of its business but denied that it had engaged in any unfair labor practices. Pursuant to notice, a hearing was held from December 7 through December 10, 1942, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by its Regional Director All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the commencement of the hearing, the Board moved to amend its complaint to allege that wage increases and vacations with pay were granted to discourage ,membership in the Union. This motion was granted without objection. The respondent then moved to amend its answer to add thereto the statement that the vacations with pay referred to in the amendment to the complaint were granted by the respondent because it followed the lead of the Cotton Manu- facturers Association of Fall River which granted vacations with pay to all of its employees working in Fall River and New Bedford, that increases in pay were granted as a matter of policy by the respondent and that interrogation of employees concerning their union affiliation followed after they began work and occurred only because the respondent, for the purpose of recording the personal histories of its employees, used printed forms which it obtained from a stationer and which contained a question concerning such affiliations This motion was granted without objection. At the close of the respondent' s case, the Board moved to conform the pleadings to the proof as far as variances in dates, spellings, and similar formal matters were concerned. This motion was granted without objection. The parties, upon request of the undersigned, argued orally before him. They were given an opportunity to file, briefs with him, but filed none. Upon the record thus made and from his observation of the witnesses the undersigned makes the following: PLYMOUTH -FINISHING CO., INC. FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 949 The respondent is a Massachusetts corporation having its office and principal place of business in Fall River, Massachusetts. It is engaged in bleaching, dye- ing, and finishing. textiles. These textiles are presently used solely by the United States government. During the past year the company processed about '12,000,000 yards of cloth .valued? at over $300;000. Approximately 90 percent of this cloth was shipped to Fall River troin points outside the State of Massachusetts, and approximately 90 percent of the processed cloth was shipped to points outside of the State of Massachusetts. During the past year the respondent purchased about $96,000 worth of dye-stuffs, of which approximately $6,000 worth was shipped to Fall River from points outside of the State of Massachusetts The respondent, for the purpose of the hearing; admitted that it is engaged in interstate commerce within the meaning of the Act. The respondent employs about 59 persons in its Fall River plant.' II THE ORGANIZATIONS INVOLVED Textile Workers Union of America is a labor organization affiliated with the Congress of Industrial Organizations and admits to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Sequence of events Manuel Thomas Froias was employed by the respondent as a night-shift jigger" in its dye house from September 14, 1940, until December 14, 1940. On the day Froias began work-lie was interrogated by the respondent. One of the questions he was asked was whether he was affiliated with any union., To this inquiry he gave an affirmative answer.' After December 14, 1940 Froias worked for the Newport Finishing Company, a closed shop. In September 1941, the Union undertook to organize the respondent's employees and was unsuccessful. - Froias was reemployed by the respondent as a night-shift jigger on March 10, 1942. He was again questioned as to'his union affiliation He,replied that he was a union member.' He was also asked by whom he had previously been employed. In answer to this inquiry, he said he had formerly worked for the Newport Finishing Company. It is undisputed that about the time that Froias returned to work for the respondent, Leo Michaud, his foreman,- told the night-shift jiggers that if they 'joined the Union they would be out of jobs. On April 20, 1942, Froias was discharged. The reason assigned by the respond- ent for the discharge was Froias' disobedience of his foreman's orders. After Froias had discussed the matter with Leonard Walsh, the respondent's president, he was told to return to work the following Monday. About June 1, 1942, the Union again began organizational work among tho respondent's employees. This was carried on by Manuel Batelho, a union organ- I These findings are based in part, upon a stipulation of the parties, which was made a part of the record. 2 A jigger operates a jig in which goods are washed, sized, and dyed. 8 This is shown by his application and history record. * See footnote 3, supra. 0 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD izer, who appeared at the respondent's plant several days a week and at times distributed union literature to the employees.' During June, Walsh told Frank Simbro, day foreman in the dye house, that he thought the Union was organizing the respondent's plant. Also during June, Lugero Dias, who had replaced Michaud as night foreman in the jig department, told the jig operators that if one belonged to a union he would be discharged. Likewise, about the same time Dias told'Froias that he [Dias] and Manuel Vivieros, one of the respondent's jiggers, had previously been laid off for a week because they had joined theoUnion. Dias added that after he had told Walsh that he would have nothing to do with the Union Walsh put him back to work. About the first of June, Joseph Soares Da Silva applied to the respondent for employment but no place was found for him immediately. Sometime in June Dias talked to Froias concerning Da Silva. Dias told Froias that he had heard Da Silva was trying to get a job with the respondent. He said, further, that he understood that Da Silva was a union organizer and added that one could not work for the respondent if he was a union mane Approximately one week after Da Silva's application for employment, Simbro called upon Da Silva at the latter's home and directed him'to report for work that evening. Simbro advised Da Silva that Walsh had told him to put Da Silva to work. Pursuant to Simbro's direction, Da Silva presented himself for work. Before Da Silva could start, Simbro told him that Walsh was out of town and Simbro had no orders to hire anyone. About two weeks later, Da Silva went to the plant and asked Simbro when he could go to work. Simbro said that he did not know. Da Silva then inquired if it was his union affiliation and activities that caused the respondent to refuse him employment. Simbro finally admitted that Da Silva was not hired because Da Silva had been a union steward at the Newport Finishing Company. Da Silva then told Simbro, "If it is because of that, tell Mr. Walsh not to worry, because I am a father of five childien and I want to work, and I am not going to make trouble." Simbro replied, "I don't know."' On July 2, 1912, about one week after Da Silva's last conversation with Simbro,' Da Silva was employed by the respondent as a jigger on its night shift. Before .Da Silva started to work Dias suggested to him that, if he was asked whether he belonged to a union, he would be better off if he answered in the negative., Dias also told Da Silva that unions were of no value and caused nothing but trouble 5 At the time of the hearing Batelho was in the United^States Navy. 6 Although Dias testified that he did not "know of" talking to any of the respondent's employees about unions, the undersigned credits Froias who testified that Dias made these statements. Though the memory of Froias was not perfect and there were a few con- tradictions in his testimony, he appeared to be making an honest effort to tell the truth. On the,other hand, the undersigned was unfavorably impressed by Dias. Further, his memory was poor even as to facts with which he should have been very familiar. Thus, at first he did not remember whether he told his jiggers to sign their jig numbers on the tags attached to the rolls of cloth dyed by them, but later he admitted that he told them to write their jig numbers on the tags. Moreover, his testimony was often contradictory. For example, at one time he testified that he did not find fault with Froins in June for he was beginning to do good work then, and later he said that most of Froias' work was "rotten' and that every roll spoiled in June was spoiled by Froias This finding is based upon Da Silva's testimony which was not specifically denied by Siinbro. Moreover, the undersigned was more favorably impressed by Da Silva' s demeanor and testimony than by Simbro's. 8 In view of this conversation, the undersigned discredits Walsh's testimony that Da Silva was put to work' immediately after the respondent secured additional business , but finds that be was employed because he had agreed not to engage in union activity. 9 The undersigned credits Da Silva who testified to the truth of these facts . Da Silva appeared to be an honest witness and his memory was good. For reasons previously given, the undersigned does not credit Dias, who denied this testimony. 0 PLYMOUTH FINISHING CO., INC. 951 Da Silva was then taken to the respondent 's office and interrogated concerning his life history. Among other questions asked of him were those relating to _his union affiliation , if any, and to the names of his previous employers . He said that he had' no union affiliation ," and that he had been previously employed by the Newport Finishing Company. Notwithstanding Da Silva's denial of union affiliation, Walsh testified that he knew when he employed him that Da Silva had been a union steward at, the Newport Finishing Company, and Simbro's knowledge of this fact has been detailed above. Some of the jiggers with whom Da Silva began to work at the respondent's plant also knew that he had been a union steward at the Newport Finishing Company, and they talked with Da Silva about the merits of unions and the advisability , of joining one. These discussions took place in the jig room almost nightly. In answer to their inquiries, Da Silva told them that they would get better working conditions if they belonged to a union . Very frequently Da Silva and Froias , who operated jigs which were located just across a narrow passage- way from., those at which Da Silva worked , discussed unions. Da Silva would stop these conversations when he saw a supervisor approaching and he testified that he did not think any supervisor heard what was said when he was talking about unions with his fellow employees , though he was not sure that this was true. Two or three times a night Dias would find jiggers talking in a group in which would be Da Silva and Froias." Dias, also discussed unions with Da Silva. For instance , he told Da Silva of the advantages of a non-union shop and promised to "make it good" for Da Silva if he did not "make trouble" at the plant. He also told Da Silva that if he talked about the Union he would lose his job. For 2 nights Da Silva was transferred to the finishing department of which William Platt was the night foreman. The next night Platt again asked for jiggers to work for him. Dias was about to send Da Silva, but according to the undenied testimony of Froias, , who was present during the conversation ,'=- Platt told Dias not to send Da Silva as he had started union trouble in the jig depart- ment and Platt feared he would start trouble in the finishing department if he worked there. Da Silva never was sent to the finishing department thereafter. Though, throughout the month of July , the Union had been doing some organi- zational work" at the respondent's plant, it was not until the end of the month that a serious effort was made to obtain signatures to applications for member- ship in the Union. On July 27, at the request of sorr,2 of the other jiggers, Da Silva went to the office of the Union to obtain applications for membership. He obtained a few of them and arranged to have Batelho come to the respondent's plant the next morning to get employees of the respondent to sign applications. Batelho went to the respondent 's plant before 7 o'clock on the morning of July 28. 10 Da Silva testified that he thought that at this time he was not a union member, since had ceased to pay union dues. 11 Dias `denied that he knew what the jiggers were talking about at these times How- evei , as it found below, the foreman of the night shift in the finishing department spoke to Dias of Da Silva 's union activities in the jig departmenh Froias also testified that Dias asked some of the diggers what they were talking about The undersigned finds, therefore, that sometime during July , and prior to the dischai ges of Da Silva and Froias, 'Dias learned that the night-shift jiggers talked about unions in the jig department. "Platt did not testify, though he was in the respondent s employ at the time of the hearing 13 There was undenied evidence that Batelho visited the respondent 's plant from time to time, talked to the respondent 's employees, and handed out union literature There was also testimony by Froias that Ernest Bourget , a day-shift 7icger, distributed applica- tion cards and union literature This was not denied , though Bourget testified. There was no evidence as to whether the respondent had knowledge of any union activity on the part of Bourget. 952 DECISIONS OF NATIONAL LABOR .RELATIONS BOARD As he came out of the plant, Froias, who was permitted by the respondent to leave his work before the regular quitting time for the night shift, met Batelho and signed an application card. Walsh and Linward Duff, the respondent's treasurer, were arriving at the plant at this time and were but a short distance from Froias and Batelho when Froias signed the card. Their view of Froias and Batelho at the time was unobstructed." A short time after Frolas signed a card Da Silva signed one. Dias was, passing by at the time and saw Da Silva sign. Batelho was known by Walsh, Duff, and Dias to be a union organizer.'.8 Before the day was over substantially all of the jiggers had signed applications, and event- ually all of them signed. After these occurrences and on June 28 the respondent posted a notice on its time clock. The announcement stated that the respondent was giving its em- ployees a week's pay as a bonus in lieu of a vacation 16 It was signed by Walsh. There had been no previous suggestion made by the respondent to its employees that it might grant such a bonus. About ten o'clock on the evening of July 28 Walsh came into the jig room. He remained there between 15 and 20 minutes walking around the department and watching what was going on. When Da Silva and Froias came to work on Wednesday," July 29, Dias told them not to change their clothes, but to meet him at the office. After they had gone there Dias gave them a sheet of paper which read as follows: Two rolls that were run last night are the worst I have ever seen. There were resist stains and they were stiff as a board and absolutely worthless." This kind of work cannot be tolerated any longer. They have not either given the malt, or run them too hot, or they are not scoured properly. Everyone else's rolls in the same lot are 0. K. The tickets from the rolls proves they were run by Silva and Froias. These men are discharged and their checks are left with you, to date. (Signed) LEONARD WALSIr. Dias then told them that they were discharged and gave them their pay in full. Froias went home without saying anything to Dias. But Da Silva told Dias that he "understood a little bit about it" and that he had a right to examine the roll which it was claimed he had spoiled so that he might find out whether it was stiff. Dias replied, "Don't ask me ; I don't know anything about it." Thereupon Da Silva told Dias that he knew why he was discharged but that he could not see why Froias had been dismissed. After leaving the office, Da Silva first went home but later that evening he went to the office of the Union and reported what had happened. That night the jiggers on the night shift heard of the discharges. Some of them were displeased about the dismissals and decided to strike. However, one 11Thou_li Walsh denied that he went to the plant this early on, July 28, and he and Duff testified that Duff was out of town at the time, the undersigned credits Froias who testified that they were present when he signed the union card. For reasons stated above, Froias appeared to the undersigned to be a credible witness. 11 This is found in view of the facts that Batelho, in an effort to organize the respondent's employees, went to its plant 2 or 3 days a week during June and July 1942, and, while there; handed the employees union literature, and in view of the further fact that Walsh in June, knew that the union was organizing the plant. 11 In addition to granting a vacation bonus at this time the respondent gave two general increases in pay during 1942. On April 18 a 10 percent raise was given and on September 19 a 15 percent raise was granted. 1T The respondent's pay day was Friday. le Walsh testified that "either four or five rolls" had been spoiled by Da Silva and Frolas. PLYMOUTH FINISHING -CO., INC. 953 of them, Joseph Freitas, decided to assist the respondent. He telephoned Walsh about 10 o'clock and told him that there was going to be some trouble in the morning and that he thought the jiggers were going to be kept from going to work. The next morning, July 30, all except two of the jiggers on both the day and night shifts struck and the jig department was closed for the day. A union meeting was held that morning and was attended by most of the jiggers. At this meeting, Mariano S. Bishop, the Union's Regional Director, exhorted the men to "stick together" and to resist any steps that the respondent might possibly take to induce them individually to return to ,work. The men were also told that the ,Union would attempt to negotiate a collective bargaining contract with the re- spondent. It was agreed that another meeting would be held the following morn- ing and that the men would continue their strike. Also, during the morning of July 30, Bishop telephoned Walsh. He was told that Walsh was not at the plant then, but that upon his return he would call Bishop. About 10 o'clock on this same morning the respondent received a letter from Phillip Whitehead of the Fall River office of the American Federation of Labor to the effect that the United Textile Workers of America, A. F. of L. represented a majority of the respond- ent's employees. After receiving these communications, Walsh telephoned the chairman of the Massachusetts Board of Conciliation and Arbitration, who agreed to get in'touch with both unions and to try to give Walsh "some advice later on in the day." The same day the office of the Massachusetts Board of Conciliation and Arbitration telephoned Bishop,i8 and after first informing him that Walsh had communicated with them, asked "what was going on " Bishop related what had occurred and, in turn, was advised that Walsh stated he had received from the Americo Federation of Labor a letter claiming that it repre- sented a majority of the respondent's employees, and that it was goirg to "file a petition for an election " The respondent did not at any time thereafter get in touch with either Bishop or Whitehead. Duiing that afternoon several officials and supervisors of the respondent talked with a number of its employees and asked them to return to work. When Walsh was inquiring of some of the men concerning their return, he told them that the respondent had received a telephone call from the Union and a letter from the American Federation of Labor,20 that the respondent had called the Massachusetts Board of Conciliation and Arbitration, and that he thought that the best thing for all concerned was to return to work. He added that he did not care what union they belonged to, but that he was only interested in their return to work. He asked them to "contact the rest of the men- anti if they could to show up for work the following morning" Also, sometime that afternoon William Platt, the foreman of the night shift in the respondent's finishing department, went to the home of Rachi Villa, who worked under him, and obtained Villa's signa- ture to a membership card of the American Federation of Labor. Although Villa was not on strike, Platt told him to go to work that night. The next morning, while 'driving to work, Walsh met employees of the re- spondent at several places. He stopped as he came to them and asked them if 19 Bishop testified that the "Commissioner of Labor and Industry of the State of Massa- chusetts" communicated with him. This agent apparently was identified with the same office which Walsh had telephoned. 2° The United Textile Workers of America very soon thereafter filed a petition for inves- tigation and certification which was later withdrawn without prejudice. There was no evidence that the American Federation of Labor had attempted to organize the respondent's employees prior to July 30, 1942. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they were going to work. ' Upon receiving affirmative replies, he invited them into his car and drove them to the plant. At least one employee, before giving such a reply, asked Walsh "what the rest were doing" and Walsh answered that "they were coming in." Later that morning a few of the respondent's employees went to the office of the Union, and inquired,what the situation was. The union meeting' scheduled for this morning did not take place because of the return to work of substantially all of the striking employees. Neither the respondent nor its employees consulted with the Union before this return to work. The strike lasted but a day and the men returned to work on July 31. As already indicated by Walsh's note, which was given to Da Silva and Froias of the time they were discharged, the respondent purported to base their dismissals upon defective workmanship.21 Though but two defectively dyed rolls of cloth were mentioned in the note, the respondent contended that it did not base the discharges merely on them. Rather, at the hearing, in addition to presenting evidence relating to these two rolls, it introduced records which purported to accu= rately set forth the number of yards of goods improperly dyed at its plant during the months of April through November 1942. According to Walsh's testimony, these records were kept for his own information. They stated that the spoilage in April was 17,000 yards, in May 17,900 yards, in June 16,000 yards, 12 in July 92,000 yards, in August 23,800 yards, in September 22,000 yards, in October. 16,000 yards and in November 12,800 yards. These records showed the alleged weekly spoilage and gave monthly totals. They were typewritten on sheets which were prepared for "Closing Reports." There was no special space on these sheets for entering spoilage and the respondent placed the spoilage records at different times under "Remnants," "Pounds," and "Seconds." The respondent did not offer in evidence ,any separate records of daily or weekly spoilage, or of spoilage caused by individual jiggers. Walsh said that the spoilage was normal except in the month of July. He testified further that in that month Da Silva and Froias together caused about 90 percent of the spoilage of 92,000 yards and that each one caused about an equal amount of spoilage. This information was based wholly on Walsh's memory. The respondent claimed that Da Silva and Froias had not properly removed the starch from this cloth before dyeing it 2S and that it was, therefore, stiff and contained resist stains and streaks. Walsh, in his note relating to the discharges, stated that this result had been caused by the failure of Da Silva and Froias to run the goods through a malt solution, by running them through too hot a malt solution, or by failure to scour them properly.' Walsh asserted that it cost about $2,000 to remedy the damage alleg- edly caused by Da Silva and Froias' in the month of July. 21 Froias indicated that lack of Rork resulted in his employment termination by, the respondent when he was first employed by it in 1940. Froias' work record for that year shows that he was discharged by the respondent for poor work and the respondent offered evidence to support this record. No contention is made, however, that -Froias' work in 1940, contributed to his discharge in 1942. "Walsh at one time testified that prior to July it would take one man all night to strip (take the dye out of) each week's spoilage He said, further, that a man'could strip at least 6,000 yards a night. Again, he testified that Froias would strip "along with the rest of them " This would indicate that the spoilage prior to July was considerably more than that set forth in the records of spoilage introduced in evidence. 23 Desizing, which is the removal of starch from cloth, is an essential operation in the dyeing process, and must be done before the cloth is dyed. At times the jig operators merely desized cloth. 2i The malt solution at proper temperature is used to remove starch which is in the goods, while, the puipose of scouring with soap and soda is to remove dirt and any starch which is left on the fabric from the ma]t. ' PLYMOUTH FINISHING CO., INC. 955 The evidence failed to show that Froias had caused much spoilage from March through June.` The respondent offered, as an explanation of the difference in the character of his work during those months and the month of July, the fact that during the earlier period the respondent had done considerable desizing and that Froias had taken care of most of this. Walsh testified that Froias had done very little dyeing during that period," but that in July most of his work consisting of dyeing. Walsh testified that desizing is a much simpler operation than-,dyeing and that Froias was given two of the best jigs in which to do it. No written records were offered to prove the amount of desizing done by the re- spondent but Walsh testified that the respondent's record of bills showed that it had desized 1,018 yards of goods in April, 120,420 yards in May, 104,108 yards in June, and 20,420 yards in July. - The respondent asserted that excessive spoilage in the dye house began the first part of July. Da Silva and Froias were not discharged until July 29. To explain this delay in discharging them, Walsh testified that it was not until the middle of July that the jiggers were ordered to put - their names on the 'tags attached to the rolls of cloth which they processed and that, therefore, "it must have been around the third week of July" before it was first discovered that Da Silva and Froias were the employees doing nearly all of the defective dyeing. On the other hand, Froias and Simbro testified that Froias had always put his name on the tags attached to the goods on which Froias worked. Also the undenied testimony of Froias is that he always wrote the number of his jig on his tags Michaud, his night-shift foreman during March, April, and part of May testified that he had ordered each of his jig operators to write his name on the tags coming with 'the goods which he processed. Michaud said he did this so' that he might know- whose work was defective, and that this did enable him to tell. , Simbro, foreman of the day shift, also testified that the day-shift jiggers always put their names on their tags. Moreover, Dias, who succeeded Michaud as foreman on the night shift, testified that each jigger on the night shift always put the number of the jig in which he processed a roll of goods on the tag attached to the roll. He stated that Froias did as directed. When the respondent's witnesses were questioned at the 'hearing as to how much spoilage, was caused by various jig operators from March until July 1, only Dias could give an answer. His reply related merely to June. He 'testified that in that month Froias did all the poor work that was clone by the jig operators, but that he could give no estimation of how many rolls of goods Froias spoiled during June. Dias had previously testified that-he found no fault with Froias in June, for he was starting to do good work then. When the respondent's witnesses were interrogated concerning what jiggers, other than. Da Silva, and Froias, did defective work in July and how many rolls of goods they spoiled during that month, only Simbro could give an answer. He testified that Da Silva and Froias spoiled all but two of the rolls of goods and that these two rolls were processed 'by one of the older jiggers. Walsh admitted that he had no records to show what jig operators did defective work even during the second half of July. He said the reason for this lack of records was that the "Walsh testified that he did not know whether Frolas had done any poor work before June 30. Michaud at one time stated that be could not say whether anyone had spoiled goods while he was night. foreman in the jig department during March, April, and the first half of May. Dias, who was the foreman of Froias during the last half of May and June, at one point in his testimony said that he did not find fault with Froias during June for he was then "starting to come good" and he did not spoil much goods. 20 Sim'bro , day foreman in the dye house, testified on cross -examination that nothing but dyeing was done in the jig department in June, though on redirect examination he said some desizing was done that month. ' 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tags on the rolls of cloth were left on them when they were returned to the respondent's customers. - Though on two occasions prior to Froias' discharge, Walsh cautioned him concerning his work, neither Walsh nor any of his supervisors ever complained to him about the temperature at which he kept the malt in his jigs or told him he-had spoiled a roll of cloth." Prior to the discharge of Da Silva, his super- visors never told him that he had spoiled any rolls of cloth. On the contrary, about the middle of July Dias told Da Silva that the latter was a good worker. Moreover, it is undisputed that Dias at one time told Da Silva that he wanted Da Silva to be his dye weigher and assistant, the position then held by Michaud. Though the respondent has been requested to reinstate Da Silva and Froias, it has refused to do so. B. Conclusions as to the discharges of Da Silva and Froias Though Da Silva and Froias admitted that their work was,not perfect, the facts herein, when considered in their totality, clearly demonstrate the lack of merit in the respondent's claim that it discharged them because of their great amount of spoilage in July. For instance, the absence of certain normal business records,'the nature of those introduced in evidence, and the contradiction between these records and the testimony of Walsh are significant. There was no record of spoilage of individual jig operators and the evidence concerning Da Silva and Froias was based entirely on memory. The records introduced in evidence appeared to have been prepared at the end of the month, and no written memoranda of daily or weekly spoilage from which they could have been transcribed to the monthly records were offered in evidence or referred to at the hearing. These records were entered on a form which made no reference to spoilage. Moreover, the entries were not always placed in the same column on that form In addition, the testimony of Walsh as to the amount of spoilage prior to July did not correspond with the facts stated in the records. Thus, he testified that the spoilage prior to July amounted to at least 6,000 yards each week and the records show a spoilage as low as 2,000 yards a week. % Again, the comparative lack of information of the respondent' s witnesses as to the spoilage during any other month than July and by any other employees than Da Silva and Froias is a suspicious circumstance. Only Dias knew about spoilage before July and his information referred only to June. Though he testi- fied that Froias was the only jigger whose work was faulty in that month, he also testified that during June he did not find fault with Froias since he was doing good work then. Simbro was the only witness who testified that he knew all about the July spoilage and he said that the only spoilage not chargeable to Da Silva and Froias was caused by one of the old jiggers This testimony is not plausible, for the undenied evidence was that all jig operators at times caused some spoilage. Further, Walsh testified that he did not know who caused all of the spoilage even during the second half of July, though, by the middle of June, all of the jiggers had been ordered to write, their names on the tags attached to the rolls zr Though Dias and Michaud testified to the contrary, the undersigned credits Froias who testified to these facts. Michaud's memory was poor. • For instance, for several months he was foreman of the shift which did the stripping, yet he was not sure whether any stripping was done during that period. Again, he did not recall whether any jig operator spoiled cloth while he was foreman of the night jiggers.' See footnote 6, supra, as to the credibility of Dias and Froias. 21 Da Silva testified to this fact. Though Dias testified to the contrary, the undersigned, for reasons already given, credits Da Silva. PLYMOUTH FINISHING CO., INC. 957 which they dyed. His reason for this lack. of information was that the tags were left on the rolls when they were returned to the respondent's customers. This explanation of his want of knowledge is without merit. The information on the tags could have been copied onto a record to be kept at the respondent's office. Another fact which creates doubt as to the bona fides of the respondent's defense is its claim that Froias, who was "starting to come good" in June, suddenly became a very poor workman and spoiled from 40,000 to'45,000 yards of goods in July Walsh attempted to account for this by saying that during June the respondent had a large desizing order and that Froias did most of this desizing, but that in July nearly all of Froias' work consisted of dyeing. He also said that it was more difficult to dye cloth than it was to desize it. The fallacy of this explanation is that Walsh claimed that the July spoilage was caused by improperly desizing the cloth before it was dyed, while he also accounted for the good record of Froias in June by saying that most of his work during that period consisted of desizing. Moreover, Simbro, the day foreman in the jig depait- ment, testified at one time that nothing but dyeing was done in that department during June. An additional factor of special significance is the respondent's failure to dis- charge Da Silva and Froias until July 29, though it claimed that spoilage had become excessive the first week in July. The reason given by Walsh for this delay was that the jiggers were not told until the middle of July to write their names, on the tags which came with their rolls, and that he did not begin to know who spoiled rolls until the third week in July. The respondent's own testimony establishes the invalidity of this excuse. Simbro testified that the day-shift jiggers always placed their names on the tags attached to their rolls of goods, and Dias testified that the night-shift jiggers always placed the numbers of their jigs on their tags. While a day worker and a night worker might have worked at the same jig and placed the same number on their tags, the fact that the day worker signed his name disclosed that a tag with a number alone was identified with a night jigger. This made it possible for the respondent at all times to ,have ascertained the person responsible for a spoiled roll of goods Moreover, with respect to Froias, Simbro corroborated Froias' testimony that the latter had always affixed his name to his tags. Assuming that the names of the jiggers were not written on the tags until July 15, the respondent would not have been obliged to wait until a week later to discover what jigger spoiled 'goods after the date, but it could have learned immediately who had done the poor -work., This is shown by Walsh's note relating to the discharges of Da Silva and Froias. It reads in part: "Two rolls that were run last eight are the worst I have ever seen. . . . The tickets from the rolls proves they were run by Silva and Frolas." Thus, instead of discharging these employees soon after it could have discovered any poor work done by them, it continued to employ them for several weeks thereafter and discharged them between pay days and one day after a substantial number of the jiggers had signed applications for membership in the Union It is to be noted that Walsh's note specified two spoiled rolls for which Froias and Da Silva were responsible, but Walsh's testimony attributed to Froias and Da Silva spoilage of "either four or five." This inconsistency casts further doubt upon the respondent's contention that it discharged Froias and Da Silva for poor workmanship. Significantly, Dias, supervisor of Da Silva, spoke of promoting him and this also considerably weakens the respondent's contention that he was discharged for poor workmanship. Finally, the evasiveness of Dias when Da' Silva asked to see the roll of cloth which was supposed to be the immediate cause of his discharge and his failure to show it to Da Silva are strong indications that no such roll existed. 958 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD . All these considerations clearly indicate the lack of merit in the respondent's claim that it discharged Da Silva and Froias because of their poor workmanship and the undersigned so finds. It must now be determined whether the respondent discharged these employees because of their union activity., To begin with, Da Silva was known by the respondent to have been a union steward at the Newport Finishing Company. Because of this he was at first refused employ- ment.- It was only after Da Silva promised not to engage in union activity that he was employed . Despite this promise, Da Silva, soon after he was hired, began to talk to many of his fellow employees about the Union. This fact became known to the respondent. His union activities reached a climax when he was seen by Dias to sign a union application card and when , on the same day, substantially all of his fellow jiggers signed similar cards . The following day he was discharged. When 'Froias applied to the respondent for employment it knew that he had recently been employed at the Newport Finishing Company which was a closed shop, but there was no evidence that he had engaged in any union activity other i than to become a union member. However, after Da,Silva began to work for the respondent, facts known to the respondent occurred which linked him with Da Silva and which might well have made the respondent believe that Frolas had begun activity to assist the Union . Thus, while Da Silva was employed by the respondent, Frias worked with jigs which were just across a passageway from those assigned to Da Silva.- He talked a great deal with Da Silva and he and Da Silva were always in the groups of jiggers which Dias often found talking to- gether when he came into the jig room :29 Finally he signed a union application card on the same morning that Da Silva and most of the other jiggers signed them. The following day he was discharged. In short, mere inactive union membership was not a bar to employment by the respondent, but it would not countenance among its employees anyone who it thought was assisting the Union in organizing its plant. In view of these facts and of the anti-union attitude of the respondent as shown by the statements and conduct of its supervisors and by the granting of a vacation bonus immediately after the jig operators joined the Union, the undersigned finds that the respondent discharged Da Silva and Froias, and thereafter refused them reinstatement, because of their membership in, and activity on behalf of, the Union. By thus discriminating in regard to the hire and tenure of employment of Da Silva and Froias the respondent discouraged membership in the Union and ,interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. Conclusions as to interference , restraint, and coercion The undersigned finds that by asking its employees about their union affiliations, by telling them that one could not work for the respondent if he-was a union man, by threatening its employees with the loss of their . jobs if they joined the Union, by disparaging unions, by promising favors to employees who would not engage in union activity , by asking an employee to sign an application card of the American Federation of Labor, by granting an unsolicited vacation bonus 90 during the height of the Union 's organizational activity , and by- its conduct in causing its a' In fact. Froias in these discussions talked about the Union. 80 The respondent 's claim that it"gave this bonus because one was given the textile indus- try in Fall River is not plausible , since it was granted before a similar bonus was given by the local textile industry and was announced at a time when it would be particularly effective in-stopping union activity at the respondent 's plant. The undersigned finds, fur- ther, that the increases in pay given by the respondent on April 18 and September 19, 1942, not having been granted during organizational activity , did not constitute unfair labor practices. PLYMOUTH FINISHING CO., INC. 959 striking employees to return to work,81 the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 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, described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and have led and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in unfair labor prac- tices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the po1 c.es of the Act. It has been found that the respondent has actively engaged in a campaign to hinder and obstruct its employees in their right to self-organization and has engaged in a course of conduct calculated to intimidate its employees in the exercise of the rights guaranteed them in Section 7 of the Act. It will there- fore be recommended that the respondent cease and desist from such actions. It has been found that the respondent discharged Joseph Soares Da Silva and Manuel Thomas Froias and thereafter refused to. reinstate them because they joined and assisted the Union-and engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection. It will therefore be recommended that the respondent offer Da Silva and Froias immediate and full reinstatement to their former or substantially, equivalent positions, without prejudice to their, seniority or other rights and privileges It will be further recommended that the respondent make Da Silva and Froias whole for any loss of pay they may have suffered by reason of their discharges by payment to each of -them of a sum equal to the amount which he would normally have earned as wages from the date of his discharge to the date of the offer of reinstatement less his net earnings, if any, during such period.32 Upon the basis of the foregoing facts, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAw . 1. Textile Workers Union of America, affiliated with the Congress of Industrial -Organizations, is a labor organization, within the meaning of Section 2 (5) of the Act. I an Since the respondent was guilty of unfair labor practices, some of which were the direct cause of the strike, its activities, which resulted in the return to work of the striking employees were violative of Section 8 (1) of the Act. Distinguish in this respect, Matter of Charles Bloom, Inc. and United Furniture Workers of America, Local 45-B, C. I. 0., 45 N L R. B. 1250. ' 12 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which should not have been incurred but for the,respondent's discrimination against him and the consequent necessity of his seeking employment else- where See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L. R B. 440. Monies received for work pertornied upon Federal, State, county, municipal, or-other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 960 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD 2. By/ interfering with, restraining, and coercing its employees in the exercise of 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. > 3. By discriminating in, regard to the hire and tenure of employment of Joseph Soares Da Silva and Manuel Thomas Froias, thereby discouraging membership in Textile Workers Union of America (C. I. 0.), the respondent has engaged in and is engaging in unfair labor, practices, within the meaning of Section 8 (3) of the Act. - .4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section,2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, Plymouth Finishing Co., Inc., and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of America (C. I. O. ), or any other labor organization of its employees by discharging or refusing to reinstate any of its'employees, or in any other manner discriminating in regard to their hire and tenure of employment or any other term or condition of their employment ; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right of self-organization, to form, join, or assist labor organizations; to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Joseph Soares Da Silva and Manuel Thomas Froias immediate and full reinstatement to their former or substantially equivalent positions with- out prejudice to their seniority and other rights and privileges and make them whole for any loss of pay they may have suffered, by reason of the respondent's discrimination against them, by payment to each of them of a sum equal to that which he normally would have earned -as wages from. the date of his discharge to the date, of: the offer 'of ,reinstatement, less 'his iiet earnings n during said period ; (b) Post immediately in conspicuous places in its place of business in Fall River, Massachusetts, and maintain for a period of at least sixty (60) consecu- tive days from the date of posting, notices to its employees stating. (1) that the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 (a) and (b) of these recommendations; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of these recommendations, and that its employees are free to remain or become members of the Textile Workers Union of America (C. I. 0.), and that the respondent will not discriminate against any employee because of mem- bership or activity in that organization'; (c) Notify the Regional Director for the First Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. 81 See footnote 32, supra. PLYMOUTH FINISHING CO., INC. 961 It is also recommended that, unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recom- mendatiOns, the National Labor Relations Board issue an order requiring it to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended-effective October 28, 1942; any party may within fifteen (15) days from the date of the entry of the .order transferring the case to'the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Wash- ?ngton, D C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as it relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must.be made in writing to the Board within ten (10) days after the date of the order transferring the case to the Board. CARL C. WHEATON, Dated January 25, 1943. Trial Examiner. 0