Lane Cotton Mills Co.

In the Matter of LANE COTTON MILLS COMPANY and TEXTILE WORKERS ORGANIZING COMMITTEE Cases Nos. C-282 and C-292.-Decided November 19, 1938 Cotton Textile Industry-Interference, Restraint, and Coercion : anti-union circulars and cards , distribution of among employees ; expressed opposition to labor organization ; discrediting union and union leaders ; surveillance of union meetings ; persuading employees to resign from union ; threat to shut down plant-Company-Dominated Union: domination of and interference with formation and administration ; support; employer ordered to refrain from rec- ognizing, as representative of employees-Discrimination : lay-offs : to discour- age union membership ; discharges : for union membership and activity ; for giving testimony under the Act- charges of, not sustained as to one discharge- Shut-Down-Unit Appropriate for Collective Bargaining : all employees, ex- clusive of clerical employees , foremen, assistant foremen, second hands, and other employees having authority to hire, discharge, or discipline ; previously determined by Board-Representatives : proof of choice : prior certification by Board-Collective Bargaining: refusal to bargain collectively with union as exclusive representative; union's method of selection of bargaining commit- tee, not subject to questioning by employer ; form of remedial order : recogni- tion as exclusive representative-Reinstatement Ordered: discharged em- ployees ; employees laid off-Back Pay : awarded. Mr. Samuel Lang, and Mr. Berdon M. Bell, for the Board. Mr. Sigmund Odenheimer, Mr. John T. Hickey, Rosen, Kammer, Wolff & Farrar, and Dart & Dart, of New Orleans, La., for the respondent. Mr. R. R. Tisdale, and Miss Jane Wilkinson, of New Orleans, La., for the T. W. O. C. Mr. Lawrence V. Alba, of New Orleans, La., for the Association. Mr. Harry Cooper, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a charge duly filed by Textile Workers Organizing Commit- tee, herein called the T. W. O. C., affiliated with the Committee for Industrial Organization, the National Labor Relations Board, herein called the Board, by Charles H. Logan, Regional Director for the 9 N. L. R. B., No. 91. 952 DECISIONS AND ORDERS 953 Fifteenth Region (New Orleans, Louisiana), issued its complaint, dated July 9, 1937, against Lane Cotton Mills Company, New Or- leans, Louisiana, herein called the respondent. The complaint alleged that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 12, 1937, the Board ordered, pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations- Series 1, as amended, that the case be consolidated for the purpose of hearing with a case arising on a petition for investigation and cer- tification of representatives filed, pursuant to Section 9 (c) of the Act, by the T. W. O. C. simultaneously with the above-mentioned charge. The complaint and the notice of hearing in both cases were duly served upon the respondent and the T. W. O. C. The respondent filed no answer. Pursuant to notice, a hearing was held in New Orleans, Louisiana, between July 20 and July 23,. 1937, before D. Lacy McBryde, the Trial Examiner duly designated by the Board. At the hearing the ,Board was represented by counsel, the respondent was represented by its president, and the T. W. O. C. was represented by its regional rep- resentative. All parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues was afforded all parties. At the end of the Board's case, counsel for the Board moved that the pleadings be conformed to the evidence adduced at the hearing. No objection was made and the motion was granted. At the be- ginning of the hearing and at the end of the Board's case, the re- spondent moved to dismiss the complaint on the ground that the allegations were not sufficiently specific. The Trial Examiner twice denied the motion. The Board hereby affirms the rulings. The Board has reviewed other rulings of the Trial Examiner on motions and on objections to the admission of evidence and finds no prejudicial errors were committed. The rulings are hereby affirmed. On August 13, 1937, the T. W. O. C. filed a new charge against the respondent, and on August 17, 1937, pursuant to the Rules and Regulations, the three cases were consolidated for all purposes. On August 24, 1937, in Matter of Lane Cotton Mills Company and Textile Workers Organizing Committee, the Board rendered its decision in the representation proceeding alone, and directed that an election be held among the respondent's employees in the unit found to be appropriate. The election was held on September 7, 1937, and on September 17, 1937, on the basis of the results of the 13 N. L. R. B. 369. 954 NATIONAL LABOR RELATIONS BOARD election, the Board certified 2 the T. W. 0. C. as the exclusive repre- sentative of the employees in the appropriate unit for the purposes of collective bargaining. Amended charges were filed by the T. W. 0. C. on October 9, 1937, and on the same day, the Board by the Regional Director issued its complaint against the respondent. The complaint alleged that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1), (3), (4), and (5) and Section 2 (6) and (7) of the Act. In substance the complaint alleged that the respondent had discouraged mem- bership in the T. W. 0. C. by threats to close down its plant, and by the distribution of handbills denouncing the T. W. 0. C. It also alleged that the respondent had terminated the employment of 13 employees named in the complaint because of membership in and assistance to the T. W. 0. C., and that the employment of 7 of the employees had been terminated also because they gave testimony and,/or were subpenaed to give testimony on behalf of the T. W. 0. C. at the hearing of July 20 to 23, 1937. In addition, the com- plaint alleged that the respondent had refused to bargain collectively with the T. W. 0. C. as the exclusive representative of its employees. Amended charges were again filed by the T. W. 0. C. on October 16, 1937, and on the same day the Board, by the Regional Director, issued its amended complaint. In addition to the allegations of the original complaint, the amended complaint alleged that the respond- ent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (2) of the Act, and added the names of 55 employees alleged to have been discharged because of membership in the T. W. 0. C. The amended complaint also alleged that the respondent had caused to be distributed other handbills denouncing the T. W. 0. C., asking employees to withdraw from that organization and demanding a new election; and had caused a publisher of a newspaper militantly opposed to the T. W. 0. C. to address its employees. The amended complaint and notice of hearing were served upon the respondent and the T. W. 0. C. on Saturday, October 16, 1937. Pursuant to notice, a hearing was held in New Orleans, Louisiana, - from October 18 to 26, 1937, inclusive, before D. Lacy McBryde, the Trial Examiner duly designated by the Board. The Board was represented by counsel, the respondent was represented by its presi- dent and his executive assistant, and the T. W. 0. C. was represented by its regional representatives. In its answer filed October 18, 1937, the respondent entered a general denial to the allegations of the com- plaint that it had engaged in unfair labor practices within the mean- ing of Section 8 (1), (2), (3), and (4) of the Act, and denied the 2 3 N. L. A. B. 373. DECISIONS AND ORDERS 955 allegation of the complaint that it had engaged in an unfair labor practice within the meaning of Section 8 (5) of the Act, stating that no properly elected committee had presented itself for collective bar- gaining and that the election of September 7, 1937, was unfair. The respondent also alleged that the amended complaint was delivered to its office on Saturday, October 16, 1937, after business hours, stated that it was not prepared at that time to answer to the allegations of the amended complaint, and asked for a 5-day postponement of the hearing. At the beginning of the hearing, the president of the respondent moved that the hearing be postponed. The Trial Examiner denied the motion, and gave him permission to file his answer to the amended complaint at any time during the hearing. Twice during the hear- ing, the respondent objected, on the ground of insufficient notice, to the admission of evidence in support of allegations of the amended complaint. The Board disagrees with the ruling of the Trial Examiner on the motion to postpone the hearing. Although the respondent participated in the hearing, because of the lack of notice full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues of the amended complaint was not at the time afforded to it. At the commencement of the hearing, counsel for a committee of employees of the respondent filed an alleged petition of intervention. The Trial Examiner allowed the committee to intervene. On the sec- ond day of the hearing, after examination of the alleged petition to intervene, the Trial Examiner reversed his' previous ruling on the ground that the petition was in fact a petition for a new election and :should have been filed with the Regional Director, and ordered all reference to the petition to be stricken from the record. On Novem- ber 5, 1937, the committee filed a protest to the ruling of the Trial Examiner, with the Board in Washington, D. C. The protest alleged that the committee represented 1,121 out of 1,245 employees of the respondent, and that it was prepared to intervene with evidence to :show that the election of September 7, 1937, was not properly con- ,ducted and that the collective bargaining committee hereinafter dis- cussed was not elected by the employees whom the committee claimed to represent. Since the protest did not allege in what respects the .election was improperly conducted, and inasmuch as we find no merit in the allegations set forth in the protest, said protest is hereby rejected and the ruling of the Trial Examiner is affirmed. During the hearing, the respondent moved to dismiss the complaint on the ground that it had introduced enough evidence in its defense to warrant a dismissal. The Trial Examiner denied the motion. The ruling is hereby affirmed. 956 NATIONAL LABOR RELATIONS BOARD During the hearing the respondent offered to prove by evidence alleged to have come to its attention more than 10 days after the elec- tion of September 7, that the election was unfair and improperly con- ducted, that the collective bargaining committee of the T. W. O. C. was improperly elected and other evidence bearing upon the contract submitted by the committee to the respondent. The Trial Examiner excluded such evidence. On November 2, 1937, the respondent filed its protest to this ruling, claiming that the Trial Examiner excluded evidence to prove that the election was improperly conducted (1) because of the presence of certain striking seamen near the voting booth; (2) because the Board supervisor of the election wagered three neckties on the outcome of the election with the Board Attorney; and (3) because the Board supervisor advised employees to vote for the T. W. O. C. The first objection to the conduct of the election should have been filed with the Regional Director within the period pre- scribed by Article III, Section 9, of the Rules and Regulations, since the record discloses that the respondent had knowledge of the first ground for its objection to the conduct of the election within the time limit. ' Even if it were proved that a wager was in fact made between the Board supervisor and the Board Attorney, that fact could in no way affect the results of the election. Although the respondent was not afforded full opportunity at the October hearing to introduce evi- dence in support of the third ground for its objection to the ballot no prejudicial error resulted from such lack of opportunity in view of the hearing of February 1938 hereafter discussed. As to the evidence bearing on the selection of the collective bargaining committee, it was properly rejected, since the method of the committee's selection is purely an intraunion matter. The ruling of the Trial Examiner is therefore affirmed. Moreover, a sufficient answer to the charge of unfairness of the election lies in the fact that the respondent's general superintendent and an employee in charge of the respondent's pay roll and personnel were present as observers at the election, and they certified that the distribution and counting of ballots was done in their presence, under the supervision of agents for the Board, in fairness and with due regard for all parties concerned. In its brief subsequently filed with the Board and in oral argument before the Board, the respondent contended that the Regional Direc- tor had failed to prepare "an Intermediate Report containing a tally of the ballots, his findings and recommendations," as required by Article III, Section 9, of the Rules and Regulations, and had failed to serve such an Intermediate Report on the respondent. The record shows, however, that after the election of September 7, the respond- ent was handed a copy of the certification of the official count in the election, and that on September 8 the Regional Director caused to be DECISIONS AND ORDERS 957 served on the respondent his "Certification" in which he found that .the T. W. 0. C. had received a majority of the votes cast in the elec- tion, and as a result thereof was the exclusive representative of the respondent's employees for the purpose of collective bargaining. We find the respondent's contention to be without merit. During the hearing, counsel for the Board twice moved to amend the amended complaint for the purpose of striking therefrom the names of certain employees alleged to have been discharged because of membership in the T. W. 0. C. The motions were granted. Counsel for the Board also moved to amend the complaint for the purpose of adding thereto the names of Albert LeJaunie and Law- rence LeJaunie, alleged to have been discharged because of mem- bership in the T. W. 0. C. The Trial Examiner allowed the amend- ment over the respondent's objection, giving the respondent permis- sion to cross-examine Albert LeJaunie at the time when he testified as the Board's witness or at any other time during the hearing if it should find any further evidence in its defense with respect to him. Both Albert and Lawrence LeJaunie testified the day after their names were added to the complaint. The respondent did not, at the time, have full opportunity to cross-examine the latter or to intro- duce evidence in its defense with respect to him. However, in view of the hearing of February 7, hereafter referred to, no prejudicial error resulted by allowing the amendment. We therefore affirm the ruling. Counsel for the Board also moved to amend the complaint for the purpose of adding the name of George Kovacs, alleged to have been discharged by the respondent pursuant to an unfair labor prac- tice within the meaning of Section 8 (3) and (4) of the Act. The respondent did not object to the amendment but requested at least 1 day in which to find out about the alleged discharge. The motion was granted, and the request of the respondent allowed. Counsel for the Board likewise moved that the complaint be amended for the pur- pose of adding the names of James Hamilton and Frank Troncale, alleged to have been discharged by the respondent pursuant to an unfair labor practice within the meaning of Section 8 (3) of the Act. No objection was made, and the Trial Examiner granted the motion. Counsel for the Board also moved to amend the complaint for the purpose of alleging that in laying off and discharging employees named in the amended complaint, pursuant to an unfair labor prac- tice within the meaning of Section 8 (3) and (4) of the Act, the respondent thereby sought to discourage and did discourage and sought to destroy the membership of its employees in the T. W. 0. C. The Trial Examiner granted the motion. Counsel for the Board moved to amend the complaint in other minor particulars, and at the end of the Board's case moved that the amended complaint be conformed to the evidence adduced with respect to dates and other 958 NATIONAL LABOR RELATIONS BOARD details. These motions were granted. During the hearing, the Trial Examiner made other rulings on motions and on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On November 26 and November 3, 1937, the Board, acting pur- suant to Article II, Section 37, of the Rules and Regulations, ordered the cases arising on the complaints of July 9 and October 16, 1937, respectively, to be transferred to and continued before it. On December 7, 1937, the Board, having considered the case aris- ing on the amended complaint of October 16, 1937, and having found that the respondent was not afforded sufficient notice, before hearing, of the allegations of that complaint, ordered, pursuant to Article II, Section 38 (c), of the Rules and Regulations, that the record be reopened and that the respondent be granted in a hearing to be held for that purpose the right further to cross-examine the Board's wit- nesses and to present further evidence in its defense. On January 10, 1938, the Board by the Regional Director issued its notice of hear- ing, which was duly served upon the respondent and the T. W. O. C. Notices of change of place and of postponement of the hearing were duly served upon the respondent and the T. W. O. C. Pursuant to notice, a hearing was held in New Orleans, Louisiana, on February 7 and 8, 1938, before D. Lacy McBryde, the Trial Ex- aminer duly designated by the Board. The Board was represented by counsel, the respondent by its president, and the T. W. O. C. by its regional representative. At the hearing, counsel for the com- mittee claiming to represent 1,121 employees of the respondent, re- ferred to above, again made a motion to intervene on behalf of the committee and filed a petition to intervene which in substance chal- lenged the conduct of the election and the authority of the bargain- ing committee of the T. W. O. C. to act for the respondent's em- ployees. Although the Trial Examiner denied the motion and ruled that the matters set forth in the petition were irrelevant at that time, counsel for the committee was permitted to intervene on behalf of the Lane Cotton Mills Welfare Association, herein called the Association, for the purpose of rebutting evidence introduced in support of the allegation of the complaint that the respondent had engaged in an unfair labor practice, within the meaning of Section 8 (2) of the Act, and during the course of the hearing, counsel for the committee was granted full opportunity to offer evidence regarding the conduct of the election. Counsel for the committee offered no evidence. At the hearing, all of the Board's witnesses who testified at the hearing of October 18 to 26, 1937, were present and available for cross-examination. The respondent and the Association expressly DECISIONS AND ORDERS 959 waived their right to cross-examine these witnesses. During the course of the hearing, the respondent again attempted to introduce evidence bearing on the conduct of the election and the selection of the collective bargaining committee, matters excluded at the previous hearing. Although the Trial Examiner stated that such evidence was inadmissible at that time, the respondent had full opportunity to offer such or any other evidence. The charges of unfairness in the conduct of the election due to the presence of certain striking sea- men and to the wager allegedly made between the Board supervisor and the Board Attorney have already been treated above, and need no further discussion here. Although the respondent had full op- portunity to do so, it offered no evidence in support of its allegation that the Board supervisor advised employees to vote for the T. W. O. C. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence was afforded all parties at the hearing. During the course of the hearing, the Trial Exam- iner made several rulings on motions and on objections to the intro- duction of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On June 13, 1938, the Board issued a Decision and Order in this proceeding.3 On July 8, 1938, the Board issued and duly served upon the parties a notice of its intention, on July 15, 1938, to vacate and set aside its findings and order for the purpose of further proceed- ings before the Board, unless sufficient cause to the contrary should then appear. No sufficient cause to the contrary appearing, the Board, on July 15, 1938, issued and duly served upon the parties its Order setting aside the findings and order made June 13, 1938. On August 5, 1938, the Board ordered, pursuant to Article II, Sec- tion 38 (d), of the Rules and Regulations, that Proposed Findings of Fact, Proposed Conclusions of Law and Proposed Order should be issued-in this proceeding, and further ordered that the parties should have the right, within ten (10) days from the receipt of said Proposed Findings, to file exceptions thereto, to request oral argument before the Board, and to request permission to file a brief with the Board. On the same day such Proposed Findings of Fact, Proposed Conclu- sions of Law and Proposed Order, together with the Order directing their issuance, were issued and duly served upon the parties. On August 15 and September 14, 1938, respectively, the committee claiming to represent 1,115 of the respondent's employees, and the respondent, respectively, filed exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order. On 3 On July 2 , 1938, the respondent filed in the Fifth Circuit Court of Appeals its peti- tion to review said Decision and Order. Thereafter, upon consent of the respondent and the Board, the petition was dismissed. 960 NATIONAL LABOR RELATIONS BOARD October 3 the respondent filed a brief. The Board has considered the exceptions and the brief, and save as the exceptions are consistent with the findings, conclusions, and order hereinafter set forth, finds them to be without merit. On October 4, 1938, pursuant to notice, a hearing was held before the Board in Washington, D. C., for the purpose of oral argument. The respondent was represented by counsel and participated in the oral argument. Upon the entire record in this proceeding, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Lane Cotton Mills Company was incorporated in Louisiana, in 1910, and has its plant and principal office in New Orleans, Louisiana. It is engaged in the manufacture of cotton cloth, cotton denim, twine, and rope. According to its pay-roll list for the week ending July 4, 1937, the number of its employees totals 1,589. Its annual pay roll is approximately $1,000,000. The respondent purchases annually some 30,000 bales of cotton, of an approximate value of $2,000,000. It also purchases other mate- rials, such as dyes, textile machinery, rope, and bags. Ninety-five per cent of its cotton is purchased from cotton merchants situated in New Orleans. The greater portion of the cotton is delivered in motor trucks to the respondent's plant from warehouses and railway terminals, while at least 10 per cent is delivered to its plant directly by railway transportation. The cotton which it receives from ware- houses is delivered in the first instance to the warehouses by boat and by rail. The respondent's sales of its finished products in 1936 aggregated approximately $4,500,000 in value. Ninety-five per cent of its sales are made directly to customers located outside of the State of Louisi- ana. Shipments to points outside of the State of Louisiana are made by motor, rail, and boat transportation. In the course of the hearing in July, the respondent admitted that it was engaged in interstate commerce. II. THE UNION The T. W. O. C. is a labor organization affiliated with the Com- mittee for Industrial Organization, herein called the C. I. O. It admits to membership all employees of the respondent, except clerical employees, foremen, assistant foremen, and any employees who have - the power to hire discharge, or discipline. DECISIONS AND ORDERS III. THE UNFAIR LABOR PRACTICES 961 A. Interference, restraint, and coercion 1. The respondent's antagonism toward the T. W. 0. C. and intimi- dation of its members during July 1937 The T. W. 0. C. began to organize at the respondent's plant in May 1937 and in June claimed a membership of 1,300 employees. On July 1, pursuant to the request of Tisdale, regional representa- tive of the T. W. 0. C., a conference took place between the respond- ent and the T. W. 0. C. Tisdale's purpose in arranging the con- ference was to attempt to negotiate with the respondent on behalf of the T. W. 0. C. Those present were Odenheimer, president, Ryck- man, general superintendent, and Odenheimer, Jr., representing the respondent; and Tisdale, Lapouble, local vice president of the T. W. 0. C., and Paillet, local organizer for the T. W. 0. C., repre- senting that organization. Newspapermen of New Orleans were present at the conference, apparently by invitation of Odenheimer.4 Odenheimer ordered supervisory and other employees, approximately 25 in number, to be present. At the meeting, he fully publicized his attitude toward the T. W. 0. C. and the C. I. 0.5 Quotations of his statements at the meeting were published on July 2 in three New Orleans newspapers. His statements as reported in the press are corroborated by the testi- mony of employees present at the meeting. Odenheimer agreed to deal with the T. W. 0. C. if he were convinced that it represented a majority of his employees, ^ and that they knew what they had signed by signing membership cards. He insisted that he should ascer- tain whether or not the T. W. 0. C. had a majority by calling each employee in person before him and asking him "if he were willing to turn himself over body and soul to -the C. I. 0.", or similar ques- tions to that effect. In front of employees, newspapermen, and union members he stated frankly that he did not want the C. I. 0., that it was "un-American," and that it was led by communists. He said that the C. I. 0. aimed only for power and not for the welfare of its members, and that it sought to bring about "Russian condi- tions." Odenheimer also stated at that meeting in front of his em- ployees that he would fight the C. I. 0. as long as he lived. On July 2, the day following the meeting discussed above, there was a wholesale distribution of copies of an anti-T. W. 0. C. cir- cular by second hands (supervisory employees) of the respondent in the mill, in the yard, and at the mill gates. The circular was ad- dressed to employees, and in substance claimed that Paillet and 4 Counsel for the respondent admitted in oral argument before the Board that Oden- hehner inited the newspaper reporters to the conference s Odenheimer used the terms C. I. 0. and T. W. O. C. Interchangeably. 962 NATIONAL LABOR RELATIONS BOARD leaders of the C. I. O. in general were communists . It warned the employees of the mill that by signing a card for membership in the T. W. O. C. they were selling their birthright. It told employees that they were not bound by signing if they did not know what they were signing, warned them not to attend union meetings, and ended up with the following : "If you don't look out for yourself, no one else will." The circular recited that it was written by Lane Mill employees. It is significant that the circular in substance contains the statements made by Odenheimer the day before. Hundreds of these circulars were seen on the overseer's desk in the mill. The night foreman of the card room stated that there was a stack of the circulars in the general office of the respondent. On the same day at a meeting duly called for that purpose, mem- bers of the T. W.• O. C. decided unanimously that an election, rather than individual submission to questioning by Odenheimer, was a preferable method to determine whether the T. W. O. C. represented a majority of the respondent's employees. The meeting was a closed one. Ryckman attempted to gain admittance. Admittance being refused, he "walked around the building, and continued looking in." Ryckman conceded that he tried to get into the closed meeting in order to be "posted" in his capacity as superintendent . He testi- fied that what the Lane Mill employees did outside the mill was just as important to him as what they did inside, that he did not like the C. I. 0., and that if he "found something wrong outside the mill" he would "advise" the employees to do "something right." On July 7 Haynes, local chairman of the T. W. O. C., Causey, a trustee of the T. W. O. C., and a third officer of the T. W. O. C., all employees of the respondent, met' with Odenheimer to discuss the cases of two employees who were alleged to have been discrimina- torily discharged by the respondent. At this meeting Odenheimer stated, among other things, that he was opposed to the C. I. O. and that he would fight it as long as he lived. For a period of 2 or 3. weeks subsequent to the meeting of July 1, 1937, second hands went about asking employees whether they be- longed to the T. W. O. C. Some were asked if they wanted to resign. One employee was threatened with discharge, by her over- seer, and one was told by the night overseer of the spinning room that the mill would shut down if the "C. I. O. won the fight." A few second hands admitted that they inquired from employees, upon order from their superiors , whether the employees belonged to or were satisfied with the T. W. O. C. Hickey, executive assistant to Odenheimer, admitted that he asked Ryckman whether certain em- ployees belonged to the T. W. O. C . King, night superintendent, admitted that he told employees • that "unions stir up strikes and trouble" and "could only bring trouble." DECISIONS AND ORDERS 963, On July 9, Ryckman showed Haynes, during working hours, a newspaper clipping containing several items describing activities of the C. I. O. in Indiana. One item related a story of the burning of C. I. O. cards at a certain company in Michigan City, Indiana, by a. C. I. O. organizer, allegedly with the consent of the members of the union involved, and quoted statements of the organizer directed against the C. I. O. Another item related the story of two organizers' of the C. I. O. who were escorted out of Washington, Indiana, by police. Ryckman admitted showing these items to Haynes, and testi- fied that he was told to do so by Odenheimer. Hickey investigated in July and at the time of the October hearing was still investigating Paillet, organizer for the T. W. O. C., in order to find out about his "communistic" activities. He reported the re- sults of his investigation to Odenheimer. He testified that it was the- "mill's business to look up Mr. Paillet's record because the mill did- not want its employees to be led by such a man." 2. Threats to shut down plant and curtailment of operations About July 20, one employee was told by the night overseer of the spinning room.that Odenheimer would shut the mill down if the- "C. I. O. won the fight." The day before the election of September 7, 1937, another employee was told by her second hand to "vote right" or Odenheimer would close the plant for several months. During the latter part of August 1937, shortly after the Board issued its Direction of Election, the respondent laid off many em- ployees from the night shift. On September 8, 1937, the day after the- election, a notice was placed on the bulletin board in the mill an- nouncing that the work schedule would be reduced to a 7-hour day and a 35-hour week. The respondent at the time was operating on the basis of a 9-hour day and a 45-hour week. The notice also. announced that some departments of the night shift would stop alto- gether and that some would be reduced. Between September 8 and 15, 1937, various departments of the mill were in fact closed down, on the night shift. Half of the' spinning room, most of the spooler room, and other departments of the night shift ceased operations, in whole or in part. The decision to curtail operations as announced in the above-mentioned notice was made on September 8, the morn- ing after the election. On or about October 1, 1937, Hickey gave to Haynes various types. of literature to read. Among these was the Textile Bulletin of Sep- tember 16, 1937. On the pages headed Mill News Items, one item was, encircled in pencil for the reader's attention, which related the story- of the removal of a plant from an Alabama town, allegedly because, of a strike caused by a refusal to recognize a union. Other magazines, 134068-39-vol. ix-62 964 NATIONAL LABOR RELATIONS BOARD which Hickey gave Haynes at that time contained editorials and articles which identified the C. I. O. with communism and in other ways showed hostility to the C. I. O. 3. The distribution of anti-T. W. O. C. cards asking for a new election. I We, the employees of the Lane Cotton Mills, demand another election. We Don't Want T. W. O. C. Name------------------------------------------ A card in this form was distributed in the respondent's plant early in October 1937 and for some time thereafter. Second hands partici- pated, together with other "loyal" employees, in the distribution of these cards and in the obtaining of signatures on them during work- ing hours. In some instances, employees were warned that they would lose their jobs if they did not sign the card. McCaskill, second hand in the spinning room, stated to one employee whom he asked to sign a card that "Everybody else is signing it.... I was talking to Mr. Ryckman... everybody is signing it just to please the old man." Some employees, particularly Ida F. Austin and Corinne Melancon, were permitted to leave their work in order to spend hours at a time for 4 or 5 days circulating cards and obtaining signatures, during working hours in the plant. In some instances where supervisory employees did not actively solicit or direct the solicitation of signa- tures, they passively acquiesced in such solicitation by employees during working hours. The center for the distribution of these cards was the lunchroom, adjacent to the first-aid room, in the recreation building in the plant, under the supervision of one Theresa Hackney, nurse in the mill. The cards were on Miss Hackney's table for 5 days, and a great many employees came up to "ask her" for cards. Pertuit, timekeeper for Cannon, overseer of the spinning room, and the man in charge of the supply room also obtained cards from the lunchroom and made them available to employees for signature. Pertuit testified that, although her desk was adjacent to Cannon's, employees who came to her to turn in signed cards always "made it their business to come when he (Can- non) was not there." Ida F. Austin, who testified that she distributed from 300 to 400 cards, admitted that her purpose was to help not only the employees of the- respondent, but Odenheimer as well. Ferdinand Francoeur, a supervisory employee, whose authority in the plant will be discussed hereafter, assumed responsibility for the DECISIONS AND ORDERS • 965 printing of the cards, among other anti-T. W. O. C. literature. Fran- coeur and other employees, named above, were shortly to be active in the formation of the Association. Francoeur stated that he paid for the printing with his own money.6 He distributed some 300 to 400 cards in the mill during his working hours. He was seen by some of the respondent's "officials" doing so but was not interfered with. He had delivered cards to the recreation room. 4. The address of Denis Flynn On or about September 21, 1937, Denis Flynn, editor of a news- paper known as The American, spoke in the respondent's mill yard. Hickey gave Flynn permission to speak. He ordered that the machin- ery in the plant be stopped. The speech was delivered several minutes before the day shift was scheduled to quit work. The second-shift employees were then coming in. The gates of the mill yard were closed, and several employees testified that they were ordered by their foremen to go out into the yard to hear the speech. Although the speech lasted some 20 to 30 minutes, employees who were supposed to be at work on the second shift were paid for the time spent in the yard. Odenheimer, Jr., and Ryckman were out in the yard, listening to the speech. Hickey was also present when the speech was given. Flynn declared that he was against communism and that Sidney Hillman and Philip Murray, of the C. I. 0., and Paillet, local organ- izer for the T. W. O. C., were communists. Flynn in other ways iden- tified the C. I. O. with communism. He then advised his listeners to ``get in with" the American Federation of Labor. At the same time that Flynn spoke, his newspaper, The American, was distributed to the employees assembled in the mill yard. Copies of the paper dated September 25 and October 16, 1937, were also dis- tributed subsequently in the mill yard. The American purports to be the "official paper of the Property Owners' Association." The issue of September 25, 1937, had a main article entitled "The C. I. O. is Menace to the South," and another article entitled "Lane Mills Em- ployees Begin To Have Change of Heart"-"Signers of C. I. O. Agreement Want Their Names Off"-"Resent Outsiders Entry Into Local Situation." The issue of October 16, 1937, had a leading edi- torial entitled "The C. I. O. Monster Enters New Orleans," and an- other article on the front page entitled "Lane Mill Employees Rally to Operator's Support.-Public Feeling Also Strongly in Favor of Executive Head of Plant.-Indications Point to a Determined Front Against Control by Communistic Labor Body." 6 He testified that his salary averaged approximately $13 per week and that he re- ceived a government pension of $12, apparently monthly. Miss Melancon and Mrs. Austin also testified that they had contributed small sums of 50 cents and'similar amounts to the cost of printing circulars. 966. NATIONAL LABOR RELATIONS BOARD 5. Conclusions with respect to interference, restraint, and coercion The evidence discloses that second hands serve in a capacity anal- ogous to that of assistant foremen, with authority to give orders and to recommend the dismissal of employees. The respondent must be held responsible for the anti-union activity of these employees, and that of Francoeur, whose authority will be discussed below, as well as for that of higher officials of the respondent .7 From the foregoing facts it is clear that on July 1, 1937, and for several months thereafter, the respondent in various ways drastically intimidated its employees in the exercise of their rights under the Act. Odenheimer made no attempt to conceal his antagonism toward the T. W. O. C. He openly publicized his sentiments in front of employees and newspapermen. This open antagonism took the form of branding the T. W. O. C., the C. I. 0., and its officers and organ- izers, as "communist," and "communists." One executive employee of the respondent engaged in surveillance of a union meeting and another investigated a union organizer. The respondent distributed anti-T. W. O. C. circulars and cards among its employees in the mill, and threatened employees with the loss of their jobs if they did not sign anti-T. W. O. C. cards. The respondent made other anti-union statements to employees, and presented anti-union literature to an officer of the T. W. O. C. Employees were questioned by their supe- riors about their union membership. In some instances the respond- ent threatened to shut down its plant. Operations were in fact there- after curtailed, under circumstances set forth hereafter in connection with the discharges and lay-offs, which compel the conclusion that the primary purpose was to destroy the T. W. O. C. Finally, the respondent permitted an address, hostile to the T. W. O. C., to be de- livered in its mill yard to its employees, and during such address and thereafter, permitted the distribution in the mill yard among its employees of copies of a newspaper antagonistic to the T. W. O. C. The speech was delivered and the newspapers were distributed under circumstances unmistakably showing the respondent's approval of these acts. It is clear that all of these and other acts enumerated above were intended to, and did, discourage membership in the T. W. O. C., and interfered with the rights of the respondent's employees to self- organization, to form, join or assist a labor organization, to bargain collectively through representatives - of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection within the meaning of Section 7 of the Act. 7Matter of Clinton Cotton Mills and Local No. 2182, United Textile Workers of America, 1 N. L. R. B. 97, 109. DECISIONS AND ORDERS 967 B. The refusal to bargain collectively As stated above, as a result of an election held on September 7, 1937, upon its direction, the Board certified on September 17 that the T. W. 0. C. had been designated by a majority of all the employees in the plant, exclusive of clerical employees, foremen, assistant fore- men, second hands, and all other employees having authority to hire, discharge, or discipline, as their representative for purposes of col- lective bargaining, and that, pursuant to Section 9 (c) of the Act, the T. W. 0. C. was the exclusive representative of all such employees for purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment.' On September 11, 1937, the T. W. 0. C., at a meeting held in New Orleans, elected a collective bargaining committee consisting of Haynes, chairman and local president of the T. W. 0. C., Lapouble, secretary-treasurer, Brewer, recording secretary, Arcenaux, Cula Moore, Viola Victorians, Peter Grosch, Ben Causey, all employees of the respondent, and Jane Wilkinson, local representative of the T. W. 0. C. On the same day the committee sent a telegram to Oden- heimer, requesting a meeting. At a meeting in the office of the re- spondent on September 13, Odenheimer was presented with a con- tract which contained provisions for recognition of the T. W. 0. C. as the sole representative of the respondent's employees, maximum hours and time and one-half for overtime, an increase in wages of 25 per cent, and other provisions. This collective bargaining agreement had been drawn up pursuant to instruction of the local membership of the T. W. 0. C. at the meeting of September 11. Odenheimer told the committee to come back the next day and he would have a reply for them. On September 14, 1937, the committee, together with Tisdale, re- turned to the office of the respondent, and Odenheimer handed them a written reply. The reply in substance claimed that a majority of the respondent's employees were not present at the union meeting at which the committee was elected, and that therefore the committee did not represent the respondent's employees. The reply also stated that there was intimidation at the election of September 7, 1931, that the respondent could not continue operation if it were burdened with "conditions which do not apply to Mills making competitive goods" and that the agreement was unacceptable. Tisdale testified that after reading the reply on September 14, 1937, he told Odenheimer that it was his understanding that Oden- heimer would not recognize the T. W. 0. C. Thereupon Odenheimer said, "That is right." 8Matter of Lane Cotton Mills Company and Textile Workers Organizing Committee, 3 X. L R. B. 373 968 NATIONAL LABOR RELATIONS BOARD On September 27, 1937, Tisdale again requested Odenheimer by letter to recognize the T. W. O. C. Odenheimer replied by letter on September 28, 1937, stating "we have nothing further to say other than the answer we gave you in writing when you called on us last time." The respondent, in its answer to the complaint, presented conten- tions similar to those contained in Odenheimer's reply to Tisdale and the committee on September 14. With respect to the respondent's first contention, it is sufficient answer that an employer has no stand- ing to question the method of selection by a union of its bargaining committee; that is solely an intraunion matter." The respondent's contention regarding intimidation at the election has already been discussed above in the statement of the case. Since the respondent in fact refused to recognize the T. W. O. C. as the bargaining representative of its employees, it is unnecessary to consider the respondent's third contention. We find that on September 14 and September 28, 1937, the re- spondent refused to bargain collectively with the T. W. O. C. as the exclusive representative of its employees in the appropriate unit, and thereby interfered with its employees in the exercise of the rights guaranteed by Section 7 of the Act. C. Domination of and interference with the Lane Cotton Mills Welfare Association At the meeting of July 1 between Odenheimer and the T. W. O. C., an account of which is set forth above, Odenheimer stated to Tisdale and employees who were present, among other things, that "he would like it much better if we would organize an independent union." At the meeting of July 7 between Odenheimer, Haynes, Causey, and a third officer of the T. W. O. C., Odenheimer stated, among other things, that he did not object to the Lane Cotton Mill employees having a union, that, in fact, "they ought to have an organization;" but that "he did not think that the Lane Cotton Mill employees should have an outside organization, but should have an independent organization." Ferdinand Francoeur. has charge of the sizing machine and the filling in the plant. Although the respondent denies that he has any power to hire or discharge employees, or that he is a second hand, he admitted that he "guided" a number of employees engaged in the work of filling, that the overseer told him "what kind of filling they wanted upstairs" and that he passed these instructions on to the em- ployees. Three employees who testified at the hearing referred to Francoeur as a "foreman" on the night shift. An employee who had shatter of Alaska Juneau Gold Mining Company and International Union of Mine, Mill, and Smelter Workers, Local No 203, 2 N. L. R. B. 125, 143. DECISIONS AND ORDERS 969 previously substituted for Francoeur was told by the overseer to see that the employees who were engaged in the work of filling, about 20 in number, did their work, and he considered himself a second hand while acting in Francoeur's place. It is thus apparent that Francoeur supervised the work of a number of employees in the plant, pursuant to instructions received from the overseer. Fran- coeur's anti-T. W. O. C. activity must therefore be considered to be the activity of the respondent, particularly against the background of this case, since it is natural for employees to assume that those who are in positions of authority represent to a large extent the attitude of the employer. Although Francoeur stated that the idea of a welfare association had been in the minds of certain employees for 6 months, the first meeting for the purpose of organizing the Lane Cotton Mills Wel- fare Association did not take place until shortly before October 11, 1937. It was held in the recreation room of the respondent, imme- diately after the day shift in the mill ended and as the second-shift employees were coming in. Although Francoeur was supposed to work on the second-shift, he presided over the first meeting and two other meetings the following day. Each meeting lasted about an hour. Between 47 and 67 employees attended the first meeting, and 52 attended the second. Many second-shift employees were present at the meetings. It does not appear that they or Francoeur lost any pay for the time taken off. It is not clear what happened at the first meeting. At the second meeting, Francoeur told the employees that they had to elect a chairman. Someone shouted, "You are doing pretty well." Francoeur thereupon "took the responsibility of `going ahead."' At the third meeting, officers were elected. The Association was formed in part for the purpose of dealing with the respondent concerning conditions of work, since Francoeur testified that one of its purposes was to "help correct conditions" in the mill, and to enable employees "to be friendly, and to have social times." Francoeur admitted, however, that the main purpose of the Association was to get rid of the T. W. O. C. He testified that the T. W. O. C. had caused a misfortune at the mill in that it had caused lay-offs, and in other ways. Corinne Melancon, and Ida Austin, both of whom had been active in the distribution of anti-T. W. O. C. cards, participated in the for- mation of the Association. Frank Lalla became president. It is dis- puted whether Lalla is a second hand or not. He is an employee on the night shift, and was supposed to be at work at the time he was elected. Lalla testified that he went into the meeting in the recreation room to see what was going on. He admitted he was supposed to be at work at the time, and that no one said anything to him about tak= ing the time off. '970 NATIONAL LABOR RELATIONS BOARD Francoeur and the Association caused to be printed and distrib- uted about October 15, 1937, two circulars, among employees of the respondent, inside the mill and in the yard near the main office of the plant. One circular was entitled "To the C. I. O. from the Lane Mill Employees." This circular charged that the C. I. O. was plead- ing "guilty to ingerents,10 false statements, and fraud, misrepresen- tation, duress, threats, and coercion." The circular went on to charge that the "supposed" officers of the T. W. O. C. and the collective bargaining committee were not properly elected by Lane Mill em- ployees because only a minority of those employees were present at the meeting held for the purpose of electing officers and a committee. It is significant that this claim is identical with that made by Oden- heimer in his reply to the bargaining committee. The circular then proceeded to exonerate Odenheimer from the charge that he was attempting to break up the T. W. O. C., stated that he had nothing to do with the printing of the cards previously discussed, and ended with a general threat against the C. I. O. The other circular was entitled "What the Lane Mill Employees Think and Know about the C. I. 0." In substance the circular alleged that the C. I. O. brought nothing but trouble, that its leaders were strikebreakers, and that they were going around making false statements. It threatened the C. I. O. leaders with jail, and pur- ported to come from "Employees of the Lane Cotton Mills Welfare Association." The circulars were distributed by Francoeur, Mrs. Austin, and other employees. The lunchroom was a center for the distribution of circulars. Francoeur was seen walking near the supply room with circulars under his arm. He admitted distributing circulars in the mill yard near Odenheimer's office. One employee, the yard man, distributed circulars in the mill yard "about two feet away from the main door in the office." Moreover, the distribution of anti-T. W. O. C. cards discussed above, in which second hands participated, was closely connected with Association activity. Although the distribution of the cards apparently began before the Association was formed, cards were cir- culated up to and during the approximate time when meetings of the Association were held. In fact, Francoeur not only assumed a per- sonal responsibility for the printing of the cards, but admitted that the Association caused both the circulars and the cards to be printed. The Association was thus organized in the mill during the working hours of employees who attended its meetings and of employees who were instrumental in its formation. It does not appear that any deduction from the wages of these employees was made for the 10 So in circular. DECISIONS AND ORDERS 971 time so spent. The employee mainly responsible for the formation of the Association was a supervisory employee. Other supervisory employees assisted in the circulation of anti-T. W. O. C. cards, for which the Association, as well as Francoeur, was responsible. The main purpose of the Association was admittedly to get rid of the T. W. O. C. Upon the basis of the facts set forth above it is clear that the Association was formed in response to the will and purpose of the respondent to destroy the T. W. O. C. We find that the respondent has dominated and interfered with the formation and administration of the Association and has con- tributed support to it. The respondent has thereby interfered with its employees in the exercise of the rights guaranteed by Section 7 of the Act. D. Discharges and lay-offs 1. The lay-offs during the last week in July The complaint as amended at the hearing alleges that the re- spondent terminated the employment of 51 employees because of membership in and activity for the T. W. O. C. The complaint also alleges that the respondent terminated the employment of six of the employees because they gave testimony or were subpenaed to give testimony at the hearing of July 20 to 23, 1937. The record reveals that the 51 employees were discharged or laid off between July 28 and October 6, 1937. All except eight were employed on the night shift. The respondent claims that it began to reduce its night shift dur- ing the last week of July 1937, because of overproduction and lack of sales. According to the testimony of Hickey, Ryckman, and other witnesses for the respondent, the facts are as follows : The greatest production of cotton cloth and cotton denim and the highest amount of sales of these goods by the respondent took place during the first 3 months of 1937. From April to October 1937 sales by the re- spondent and throughout the industry as a whole continually fell. The respondent claims that its sales for the first 3 months of 1937 amounted to 12 million yards of cloth, whereas sales for the period from April to October 20, 1937, amounted to 21/, million yards.',- It is admitted that production at the plant was kept at the same level from April to July 1937, even though sales fell continually during that period. Production in the industry as a whole fell during that time, while the respondent kept its production up. n It is contended in a statement signed by Hickey that for the period from September 1 to October 23, production of cloth at the plant in 1937 amounted to 21 per cent less than production in 1936, during the same period, and that sales by the respondent in 1937 amounted to 70 per cent less than in 1936, for that period 972 NATIONAL LABOR RELATIONS BOARD The respondent built a new warehouse in May 1937, and stored its surplus goods in that warehouse. At the time of the hearing the respondent was still placing goods in its warehouses. The respondent claims that as a result of continued overproduction for a period of several months, its credit was finally exhausted in the month of July 1937, and that it was therefore compelled to begin to reduce its night shift during the last week of that month. There was introduced in evidence at the hearing the respondent's pay roll submitted by it to the Board for use at the election con- ducted on September 7,-1937. The pay roll shows the employees of the respondent as of July 3, 1937, and those employees whose em- ployment was terminated between July 3 and September 1, 1937. There also appears on the pay roll the reasons for the termination of employment. The notations showing such termination of em- ployment were made by the respondent itself. In a letter to the Board Attorney for the Fifteenth Region dated August 24, 1937, concerning alleged discriminatory discharges before that date, Odenheimer stated that 200 people left the respondent's employ for various reasons between July 1 and August 22 and that the respond- ent employed 149 new employees during that period. The pay roll reveals that out of over 200 employees whose employment was terminated between July 3 and August 24, 1937, only 4 employees on the day shift were laid off because of lack of work, and only 14 em- ployees on the night shift were laid off for that reason. Of the 14 night-shift employees who were laid off for lack of work, 1 was laid off on each of the following dates : July 6, July 13, July 20, August 13, August 17; 3 were laid off on August 20. The other six, who were the only ones laid off between July 28 and July 31, 1937, are employees named in the complaint. We will discuss the latter six lay-offs first. Five doffers were laid off from the night shift soon after the hearing of July 20 to July 23, 1937. The name of one of them, John Durham, was stricken from the complaint at the hearing. As amended, the complaint alleged that four of them were laid off be- cause of "membership in and activity for the T. W. O. C. The com- plaint also alleged that one of the four, Albert Lapouble, was laid off because he gave testimony at the hearing in July. An account of the circumstances under which the four were laid off follows : Albert Lapouble. Albert Lapouble, secretary-treasurer of the T. W. O. C., and 36 years of age, has been employed by the respond- ent as a doffer intermittently for 21 years. In addition to perform- ing his duties as secretary-treasurer, Lapouble was active on behalf of the T. W. O. C. in other ways. He solicited members. He at- tended the conference between Odenheimer and representatives of the DECISIONS AND ORDERS 973 T. W. 0. C. on July 1, 1937. He testified at the hearing of July 20 to 23, 1937. Before being laid off on July 28, 1937, Lapouble had been steadily employed by the respondent since June 22, 1936. At the time of his lay-off, Cannon, overseer of the spinning room, told him lie had too much help. Forty-five other employees were doffing on the night shift and Lapouble had been there longer than any of the other doffers. No complaints had ever been made about his work; nor had he ever violated any company rules. Lapouble has asked twice to be returned to his job. Cannon told him both times that the respondent did not need any one. Since his discharge, Lapouble has found no other steady employment. He has earned $2.50 for 1 day's work. He was earning $9.75 weekly at the time he was laid off. Charles Bartley. Charles Bartley, 34 years of age, had been em- ployed by the respondent as a doffer for 17 years. He had worked steadily for 4 years before his lay-off on July 22, 1937. At the time he was laid off Cannon told him the respondent was going to "stop some frames" and did not need him any longer. He went back to the mill a few days later and was told that "there was nothing doing." He had been there longer than most of the other doffers on his shift. He had joined the T. W. 0. C. 2 weeks after it began organizing at the mill. Since his lay-off, he has not found other employment. Ernest Brandt. Ernest Brandt had been employed by the re- spondent as a doffer for 8 years before he was laid off on July 28, 1937. His last steady employment period was 11 months. At the time he was laid off, Cannon attributed that action to slackness of work. He had been employed longer than some other doffers who remained. He joined the T. W. 0. C. about 4 weeks after it began to organize at the mill. He earned $9.75 weekly at the time he was laid off, and has not found other employment since then. Edward Smith. Edward Smith, 39 years of age, had been em- ployed as a doffer by the respondent for 10 months before he was laid off on July 28, 1937. He had also worked there previous to that period, for about 5 years. He had received no complaints concern- ing his work, and had been employed longer than 10 other employees in his department. He was laid off by Pelham, assistant overseer of the spinning room on the night shift, and was told by him that the reason was "too much help." Smith joined the T. W. 0. C. on June 5, 1937, and solicited mem- bers for it. At the time of his lay-off, Smith was - earning $9.75 weekly. He has not found other employment. He applied- for his job 2 weeks after being laid off, but it does not appear what answer 974 NATIONAL LABOR RELATIONS BOARD he received to his application. At the time of the hearing he had not been reinstated. The pay roll discussed above indicates that Lapouble, Brandt, and Smith were "discharged" on July 28, 1937, because of "no work." Bartley was "discharged" for the reason that he "stays out too often." The pay roll also indicates that no other doffers were "dis- charged" at that time because of lack of work, with the exception of Durham, referred to above. In letters to the Regional Director on August 3 and August 10, 1937, Odenheimer stated that Lapouble, Smith, Brandt, and Bartley were laid off because of a curtailment of production on the night shift, and that Cannon had instructions in laying off doffers to lay off "some of the older men." Odenheimer stated that, "During the trial 12 it came to the writer's notice we had middle-aged men doing work intended for very young boys." Odenheimer also stated that "we did not hire anyone in their places," and that Cannon "tells us further that he still has instructions to lay off the balance of the older men who work as doffers, and if he needs any more help for doffing, to hire young boys." Apparently the respondent did need more doffers within a short time since Ryckman testified that "we hired learners to replace the work of the men at the doffing . . . it was the policy of putting boys on the doff; doffing is a boy's job in our mill." It also appears from Ryckman's testimony that Odenheimer told him the day after he (Odenheimer) noticed the ages of doffers who testified at the hearing in July, that he should make it his business to replace the older men with boys "as soon as possible." However, Pelham, assistant overseer of the spinning room on the night shift, testified that since doffers discussed above were laid off, experienced doffers have been hired by the respondent. As indicated above, the ages of Bartley, Lapouble, and Smith are 34, 36, and 39 years, respectively. Brandt's age does not appear. Lapouble testified that his brother, a doff er, 38 years of age, and three other doffers whom he knew, who were over 25 years old, were still employed by the respondent. Ruth, a doffer 32 years of age, testified he was still doffing. It appears from other testimony at the hearing that many doffers from 28 to 38 years of age were still employed by the respondent. These facts are uncontroverted. Moreover, doffers employed on the day shift testified that they had recently been given more frames to doff. Cannon admitted that during the week of October 18, he was short of help on the day shift and that he "stretched the boys out to two more frames." He at- tributed this to the fact that "eight boys ... quit ... some of them went to a C. C. C. camp and some to other places to work." We do "Italics ours. The reference is to the hearing of July 20 to 23, 1937. DECISIONS AND ORDERS 975 not find Cannon's explanation for this stretch-out persuasive, and do not give it credence. In view of the facts set forth above, we are of the opinion that the alleged reason for the selection of the above-named doffers for lay- off was merely a pretext by which the respondent sought to cover up its discrimination against them. We are led to this conclusion by these considerations : Odenheimer stated that the doffers were not replaced.; it is clear from Ryckman's testimony that they were re- placed within a short time. Moreover, experienced men as well as learners were hired by the respondent for the job of doffing after the lay-offs here in question. In the case of Bartley, there is a conflict between the reason for his lay-off as set forth on the pay roll and that set forth in Odenheimer's letters. What is also significant, doffers as old as those discharged were retained by the respondent. Further, the policy of laying off older doffers was admittedly applied in the cases in question immediately after the hearing of July 20 to 23, 1937. Finally, Lapouble, Smith, Brandt, and Bartley, together with Durham referred to above, were the only doffers laid off on July 28, 1937. Lapouble was an officer, Smith was an active member, and Brandt and Bartley were members, of the T. W. O. C. In view of the above considerations, the respondent's avowed antagonism against the T. W. O. C. and its illegal conduct as a whole, we find that the respondent laid off Lapouble, Smith, Brandt, and Bartley because of their membership in and activity for 'the T. W. O. C., thereby discriminating in regard to hire and tenure of employment and discouraging membership in the T. W. O. C. The fact that Lapouble was laid off so soon after giving testimony at the hearing of July 20 tends to establish that he was laid off for testifying as well as because of his union activity. On the basis of the above facts, however, we do not find that Albert Lapouble was laid off by the respondent because he gave testimony under the Act. Appie Wellborn and Sylvester Wellborn. The complaint, as amended at the hearing, alleged that Appie Wellborn and Sylvester Wellborn were laid off because of membership in and activity for the T. W. O. C. The complaint also alleged that Appie Wellborn was laid off because she gave testimony at the hearing in July. Sylvester Wellborn and Appie Wellborn, husband and wife, were employed by the respondent in the spinning room on the night shift in the middle of March 1937. Both were laid off by Pelham on July 31, 1937. They had received no complaints about their work. Mrs. Wellborn had been employed longer than some other employees in her department. Both were members of the T. W. O. C., and Mrs. Wellborn had been active for the T. W. O. C. Before her lay-off Ryckman told her that she "talked too much about the Union in the mill." She had been subpenaed to testify at 'the hearing in July, 976 NATIONAL LABOR RELATIONS BOARD but did not testify. King, night superintendent, asked her before the hearing in July if she had joined the T. W. O. C., and she told him she had. A few weeks before their discharge Wellborn and Mrs. Wellborn appeared in a newspaper picture of members of the T. W. O. C. at a meeting. Wellborn testified that Pelham at that time told him that his picture in the paper "would cause him to lose his job." Pelham told Mrs. Wellborn that "you are going to see what that was going to cause you some day." Wellborn testified that at the time of his lay-off Pelham told him he had a right "to lay them off on account of they had joined the C. I. 0." Pelham told Mrs. Wellborn that he "just got orders to lay you off." Wellborn earned $9.75 weekly at the time of his lay-off. He asked for his job back a month and a half before the hearing and was told by Pelham that "he could not tell when he could put on anybody else." Wellborn began to work at a sawmill on October 11, 1937, at 40 cents an hour and has earned about $11 since his lay-off. Mrs. Wellborn applied for reinstatement three times without success. The first time Ryckman told her. she had "no chance" and advised that she leave town if she could find employment elsewhere. She has not found other employment since her lay-off. At the time of her lay-off she was earning $10.25 weekly. At the time of their lay-off, Wellborn and Mrs. Wellborn were told by Pelham that he was "laying off" 27 others that night. Both testi- fied, however, that they were the last to leave the department that night and no other employees were laid off or discharged. In fact, the pay roll indicates that Wellborn and Mrs. Wellborn were the only employees who were "discharged" in the spinning room for lack of work during the months of July and August 1937. Pelham did not deny the conversations set forth above, nor did he testify concerning other "lay-offs" at that time. From the facts enumerated above, and in view of the record as a whole, we find that the respondent laid off Wellborn and Mrs. Wellborn because of their membership in and activity for the T. W. O. C., thereby discriminat- ing in regard to hire and tenure of employment and discouraging membership in the T. W. O. C. Upon the basis of the above facts, we find that the respondent, by laying off Appie Wellborn, did not thereby discriminate against her for giving testimony under the Act. 2. The' discharges alleged by the respondent to have been made for cause Mattie ' Brewer. The complaint alleges that Mattie ' Brewer was ,discharged because of her membership in and activity for the T. W. DECISIONS AND ORDERS 977 O. C. The complaint also alleges that she was discharged because she gave testimony at the hearing in July. Mattie Brewer has been employed by the respondent off and on for about 15 years. Before her discharge on August 6, 1937, she had been employed steadily since June 1937, running drawing frames in. the card room at night. According to her testimony, she had never been discharged before. She was a member of the T. W. O. C. Two weeks before the hearing in July, Peter Landry, second hand in her department, asked her to sign a paper "to do away with" the- T. W. O. C. She refused. He said, "If you ain't willing to sign, your name to do away with this, to stop it, don't talk about it." Mrs.. Brewer showed him her T. W. O. C. card and said she would not "take $25 for this card." Peter Landry admitted that the foreman,- Garris, told him to ask employees if "they were satisfied with the C. I. O." On Monday, July 19, 1937, the day before the hearing in July, Mrs. Brewer's son, Louis Brewer, to be discussed hereafter, approached: Garris to tell him that he, Brewer, was subpenaed to testify at the hearing and would not be in to work the following day. Thereafter- that night, enraged by his talk with Brewer, Garris told Mrs. Brewer- that "the damned C. I. O. don't own this mill ... I dare you. to tell. me you belong to the C. I. O.... You will go out of here quicker than you came in if I have to take my foot and kick you out." He - also said, "Don't you come in tomorrow night ... I don't want to, be firing you, but if you come in here tomorrow night I am going to- fire you." Mrs. Brewer testified at the hearing on Wednesday of that week,, concerning the conversations with Peter Landry and Garris set forth, above. She returned to work on Thursday and "there was Dad ( Garris) and he said `She is back again, . . . I won't stop until she is gone out."' Mrs. Brewer worked for 21/2 weeks. On the night of August 6, 1937, she left her frames and went to lunch at 8:45. Her frames were stopped when she, left them. She came back at 9: 10. and found her frames operating. She testified that that was unusual because she usually started the frames herself. She saw Sam Simon- eaux, second hand, standing in the back of the frames as if he were fixing them. Within a few minutes she saw him leave, and then. Garris came up, cursed her, and said."God damn you, I got something on you now and you are going out." He referred to-her alleged "bad _ work," claimed to be the result.of "running seven ends" in her ma- chine instead of six. Garris told her, furthermore, "You put in the- paper that I threatened you;" referring to her testimony at the hear- ing in July, and swept her hand off the frame. Mrs. Brewer told Simoneaux that Garris had put him' "up to this ... to put this bad work" in her machine. Simoneaux looked down and did not speak. 978 NATIONAL LABOR RELATIONS BOARD Garris testified that Mrs. Brewer was discharged because "she put seven slivers of drawing in where it should be six" a week before her discharge and that he warned her at that time and that she did the same thing the night of August 6. He stated that Mrs. Brewer could never "keep her work up right," and that he had laid her off before for doing the same kind of work on the third floor. He continued taking her back, however, because she "would come and make all sorts of promises." Garris "fired" her a dozen times within the last 22 years because of her poor work but continued to take her back. He took the "seven ends" down to the office for "evidence to show what 1 laid her off for." Garris, however, could not specify any other instances when he had taken other bad work to the office for evi- dence. He admitted knowing that she had testified against him at the hearing and that he had never spoken to her since the hearing "except when he had to get after her." He admitted also that the same day she came back to work after the hearing, he told Simoneaux to "watch her." Garris' testimony as a whole is evasive in character. He admitted telling her when she was discharged, "Now tell the people what I laid you off for." He told her that, he claimed, "Because she is such a liar . . . she got up here (referring to the previous hearing in July) and lied" about him. Garris also admitted that he watched Mrs. Brewer so that he would have a very good reason for her dis- charge, because an order had been issued from the office "that nobody should be discharged without a very good reason and without keeping a record of what he was discharged for." Ryckman testified he had given such an order. Ryckman also testified that Mrs. Brewer had been laid off at least five or six times before within 5 or 6 years, but admitted she had been taken back each time in spite of her "bad work." Howard testified that he knew positively that Mrs. Brewer had been guilty of the offense of putting "seven ends" in her machine three times before her final discharge, that she had been discharged each time and that she had been taken back to work each time. Simoneaux denied that he put the "seventh end" in Mrs. Brewer's drawing frames. He testified, however, that he came back from lunch at 9 o'clock, 10 minutes before Mrs. Brewer did and that he passed her frames at that time. He claimed that he had come back to start the motor. About 3 weeks after her discharge Mrs. Brewer talked to Howard, overseer of the card room, about getting her job back. Howard said at that time, "I am going to speak truthfully. You can't get no work here in Lane's mills anymore . . . because you went on the witness stand." Howard.did not deny this conversation. DECISIONS AND ORDERS 979 In view of the respondent's conduct as a whole toward the self- organization of its employees, the good faith of its order not to dis- charge an employee without good reason may be questioned. More- over, there is sufficient indication from the testimony set forth above to believe that the "good reason" in the case of Mattie Brewer was deliberately fabricated for the purpose of bringing about her dis- charge. In addition, the testimony of the respondent's witnesses with regard to the number of times Mrs. Brewer had been previously laid off and the circumstances of those lay-offs and reinstatements is vague and inconclusive. Upon the whole record, and especially in view of the character and substance of Garris' testimony, we find that the respondent discharged Mattie Brewer because of her membership in the T. W. 0. C., thereby discriminating in regard to hire and tenure of employment and discouraging membership in the T. W. 0. C., and also because she gave testimony at the hearing in July. At the time of her discharge Mattie Brewer was earning $8.78 weekly. She has found no other employment since with the excep- tion of a job distributing circulars for the C. I. 0., at which she earned about $5. Louis Brewer and Frank Hardeman. The complaint alleges that Louis Brewer and Frank Hardeman were discharged by the respond- ent because of their membership in and activity for the T. W. 0., C. and also because they gave testimony at the hearing in July. Louis Brewer, son of Mattie Brewer, was hired by the respondent in March 1937, on the day shift, to pick cotton from bales at 15 cents per hour. He was later ,promoted to the opening room, where he received 171/2 cents per hour. Upon his request,- because of the dust in that room, he was removed from the department and placed in the rope room, where he received a raise to 20 cents per hour. Later his rate of pay was increased to 241/2 cents per hour. Shortly before his discharge on about August 4, Brewer was transferred again to the opening room. He had never been discharged or laid off by the respondent before. Brewer was one of the first to join the T. W. 0. C. and later became its recording secretary and was known to Howard, overseer of the card room, as such. He was very active on behalf of the T. W. 0. C. He testified that he stood across the street from the mill with Paillet and signed up employees for the T. W. 0. C. He himself signed up 500 members. On July 2, Meyers, second hand in the opening room, who later brought about Brewer's discharge, came in with circulars of the type already described above, which he distributed throughout that depart- ment. He exclaimed to Palmer, another employee, from whom Brewer took orders, "C. I. 0., hah, hah." 134068-39-vol. ix-63 980 NATIONAL LABOR RELATIONS -BOARD ,Brewer' testified that while he was in the rope room he "began talk- ing unionism there, and right away they noticed it . . . and put hard work- on"me, extra work; and he (apparently a reference to the fore- man in- that department ) put me on a machine , and I did not know hoiv 'to r'un- that machine , and,,as a result, I got my arm caught .. . find got` it near tore off." Brewer was transferred back to the opening room before the hear- ing' in' July: ' He complained about -the transfer, and Meyers said, "Why don't you quit?" ' - Garris was aware of the fact that Brewer was subpenaed to testify at the hearing in July. After the hearing, at which Brewer testified, he was ordered to wash windo"ws, sweep floors, and throw dirt out of the "dust hole," work which he had never done before. 'The dust hole is regularly cleaned out at intervals. The first time Palmer ordered him to throw the dust out, he protested but did it. The second time he complained, and Palmer sent him to Meyers, second hand, who said, "We will take turns next time." Under protest Brewer went down into the dust hole again. At that time Brewer "told Peter Palmer to his face that he was working against me because I came 'to court and testified about it, and I told him `There is going to be a lots more 'court coming up-again'and I will'testify again' and he did not deny it, in fact he did not say a word." Brewer was told to clean out the dust hole three, times in succession." Meyers-told, him to go down the third time, and Bre\ver for the third time objected; saying, "-You told me we were going to take turns." ' Meyers' replied, "I did not promise you anything;" and told' him to see Howard, the overseer. Brewer walked up to Howard and said, "Alan Meyers sent me up here." Before Brewer could speak further, Howard said, "Well, you know, you ought to do your work. You are violating a company rule." Brewer then explained why he had come. Howard told him he should have thrown the dust out first and come to see him after- wards. Meanwhile Meyers had himself thrown the dust out. - How- ard testified that Brewer "automatically quit" by refusing -to do his work. Brewer testified that the dust got into his lungs, that his lungs grew weak therefrom, and that it affected his eyes and gave him colds. The pay roll indicates that Brewer was discharged because he re- fused to carry out orders on August 4, 1937. In a letter to the Regional Director dated August.10, 1937, Odenheimer stated as fol- lows : "As to the sixth paragraph of your letter, we presume you refer to Louis Brewer who was laid off ... for refusing to do the work allotted to him. Mr. Meyers, who is in charge of the Opening room ... under ... Howard, tells us that what is called the duet DECISIONS-AND ORDERS' 981 -roonz is .cleaned out about twice- a week, and that the men work- ing under him. in, his room-,are white men, and that said Louis Brewer on July 30 was allotted to this work, like some others, and ,he complied. On August 4, he was again allotted to this work, and refused, claiming that 221/2 cents per hour was not sufficient for that kind of work. When he refused ...,he was laid off as is cus- 'tomary . . . and Meyers, in line with ,his duty, went to his over- seer, Mr. Howard, and Mr. Howard agreed with Mr. Meyers, and Mr. Howard,- the Overseer, wrote out the pay-off slip on which he .wrote his explanation of the lay-off `refused to work' or some words like it." Meyers testified that Brewer was not discharged but that he "auto- matically quit" by refusing, to do the work assigned to him. Upon his alleged refusal, Meyers took his "gang, which was numbered about 20 men .... I showed them that I could do it myself, in order to show each- and every man ... that I was not a bit better than they." Frank Hardeman's employment with the respondent was termi- nated on August 13, 1937, under circumstances similar 'to those of Brewer's discharge. He had been employed by the respondent for 9 or 10 years. His last steady employment was for a period of about a year. He worked in the lapper room on the day shift. Three other employees were doing similar work to his and he had seniority over them. No complaints were made about his work. Hardeman joined- the T. W. O. C. when it first began to organize in the mill. He testified at the hearing in July. His foreman, Fee, "hardly spoke to him after the hearing."' Hardeman testified that when "Brewer- was laid off, Alan Meyers pointed to me and said I would be next." On August 13 Meyers told him to throw the dust out of the dust hole. He told Meyers it was not his work and that he "would see about it before I done it," ' and that he had never done that work before. He was thereupon sent to Fee, his foreman. Fee sent him to Howard who pointed out that he had refused to do the work. Howard discharged him but told him to come back Monday and he would try to put him back to work. On Monday, Howard told him to come back again. The next time Howard told him, "I can't put you back to work, there are others around here that don't want you." Hardeman had never been asked to throw the dust out before the hearing, and he testified that until the hearing in July, negroes had always thrown the dust out. - The pay roll indicates that he was discharged because he refused to do his work. Meyers denied that he told Hardeman he would 982 NATIONAL LABOR RELATIONS BOARD be next to go after Brewer, and testified that he "automatically quit" his job upon refusing to do what he was told. Fee also testi- fied that Hardeman refused to throw out the dust and thereby "automatically quit." Fee admitted that "there has been a couple of negroes doing it (throwing out dust) . . . for a good while but ... not lately, they have been taking turns lately." Howard testified that Hardeman's case was similar to that of Brewer, and that since Brewer had objected to throwing out the dust, "I made a rule to let everyone take a turn, and if I remember right, two or three threw it out and then Hardeman's time came, and he refused ... and then he came to me and I told him the same thing I told Brewer." The fact that Howard anticipated the reason why Brewer had been sent to him after the latter objected to throwing out the dust for the third time, is revealing. Neither Brewer nor Hardeman was ever asked to clean out the dust hole before the hearing in July. In view of Meyers' attitude as shown by his distribution of anti-T. W. 0. C. circulars, we disbelieve his denial of the statement to Hardeman that "he would be next to go after Brewer." Hardeman's testimony that only negroes had thrown out the dust before the hearing is substan- tially corroborated by Fee. The fact that the respondent changed its policy in this respect after-the hearing, alone, would be of little significance. However, there is .considerable indication that anti- T. W. 0. C. bias motivated the change. It is,clear,that Meyers' action in cleaning out the dust hole himself was merely for histrionic effect and probably for, the purpose of allaying suspicion with respect to his motives in assigning Brewer to that job. The testimony of Pal- mer and Fee that they also had, done this job is not credible in view of the fact that they were employed in a supervisory capacity. How- ard's testimony set forth above with respect-to other employees who took turns at the job is significantly vague. Furthermore, Howard stated that it was only after Brewer's objections that he "made a rule to let everyone take a turn." Moreover, it is significant that no em- ployees of the respondent other than those indicated above testified to throwing out the dust. The record as a whole leads us to believe that the selection of Brewer and Hardeman for the job in question after the hearing was calculated to bring about the desired result, namely, the severance of employment with the respondent of Brewer and Hardeman. We conclude that the discharges of Brewer and Hardeman were the result of a scheme on the part of the respondent to sever their employment with it because of their membership in the T. W. 0. C., and because of the fact that they testified at the hearing in July. We find that the respondent, by discharging Brewer and Harde- man, discriminated against them in regard to hire and tenure of em- DECISIONS AND ORDERS 983 ployment thereby discouraging membership in the T. W. O. C. We also find that the respondent discharged Brewer and Hardeman be- cause they gave testimony under 'the Act. Before his discharge Brewer earned $11 to $12 per week. He asked to be-returned to his job about-August 9 and was refused. He had found no other employment at the time of the hearing except that he had distributed union circulars and thus earned $3 to $4. At the time of his discharge, Hardeman was earning $12 to $13 weekly. Two weeks before the hearing of October 18 he went to work for a painting contractor. He has earned $50 since his discharge. Peter Grosch. The complaint alleges that Grosch was discharged because of membership in and activity for the T. W. O. C. Grosch was employed by the respondent as a doffer off and on for 10 years. His last steady employment before his discharge began in January 1937. At the time of his discharge he was employed as a doffer on the night shift. He had never received any complaints about his work prior to the date of his discharge, nor had he ever violated any company rule. He had never been discharged before. Grosch was one of the first to join the T. W. O. C. He was very active in its behalf, testifying that "he got 200 to join." He was discharged by Pelham, night overseer, on August 13, 1937. Pelham said he was playing and throwing water the day before. Grosch denied the charge. He testified that during the rest period the day before, "a few of the boys were playing . . . and after a while there was some water throwed . . . and Pelham came over and accused me and said `You are fired."' Grosch told him he had not thrown the water but refused to tell who had. Pelham insisted he saw Grosch throw water. Grosch said, "If you saw me throw it you must have saw what the other boys were doing." About 3 weeks before his discharge, Pelham gave him a book to read which "concerned labor, and was about John L. Lewis called a tyrant, and the C. I. O. was worse and things like that." The day after his discharge, Grosch was in the respondent's office for his wages, and Odenheimer, Jr. said to him, "I heard you were fired for throwing water . . . You was in some trouble in 1933 in the last strike." He also told him that he was "in trouble now." Grosch asked him what he meant and Odenheimer, Jr. told him, "Well, you are mixed up in the C. I. O. now." At the time of his discharge, Grosch earned $9.75 weekly. Since then he has earned about $50, at temporary employment. The pay roll indicates that Grosch was discharged for playing. Pelham testified that he discharged Grosch for throwing water, and that Grosch had been- warned several times not to throw water. Pel- ham did not deny that other employees had thrown water. He ad- mitted giving Grosch the Textile Bulletin to read. However, he did 984 N.\'FIONAL LABOR RELATIONS BOARD not remember whether there was anything in the Bulletin about the C. I. O. The copy of the Textile Bulletin which Hickey gave to Haynes, referred to above, reveals the anti-C. I. O. character of that publication. The conversation with Odenheimer, Jr., set forth above, is not denied. In view of the length of Grosch's employment, the fact that other employees undoubtedly also threw water, and other facts set forth above, and in view of Pelham's anti-union attitude as disclosed by his discharges of other employees for membership in the T. W. O. C., we believe that Grosch was discharged because of membership in and activity for the T. W. O. C. We find that, by discharging Peter Grosch, the respondent discriminated in regard to hire and tenure of employment thereby discouraging membership in the T. W. O. C. Charles Siegwart. The complaint alleges that Siegwart was discharged because of his membership in and activity for the T. W. 0. C.' Siegwart had been employed by the respondent for 11/2 years be- fore he was discharged on August 20, 1937. He was employed as a doffer on the iiight shift. He had worked there longer than other doffers, and had never received any complaints about his work. ' He joined the T. W. 0. C. on June 5, and solicited for it. At the time of his discharge, he was the sergeant. at arms in the T. W. O. C. He attended the hearing in July. Siegwart was out ill on Thursday, the night before his discharge. He was discharged by Pelham, on August 20,1937, who told him the reason was that he had stayed out the night 'before. Two or three months before his discharge, prior to the advent of the T. W. O. C., Siegwart had been ill and had been absent from work for 2 weeks. When he returned he was put back to work. At that time and also the night before his discharge he sent word to Pelham that lie was ill. At the time of his discharge, Siegwart was earning $9.75 weekly. He has made no earnings since. Two weeks before the 'hearing he asked Cannon whether any doffers were needed. The reply was in the negative. The respondent does not contend that it is its'practice to discharge employees for absence due to illness if such absentees send word of their illness. Although Pelham testified at the hearing he did not deny that he had in fact received such word from Siegwart the night of the latter's absence, nor did he even claim that Siegwart was dis- charged for staying out on Thursday. At the hearing Pelham at- tributed Siegwart's discharge to the fact That "he stayed out each and every. Monday for a period of four or five weeks." The fact that Pelham should have waited until a Friday to discharge an em- DECISIONS AND ORDERS 985 ployee, who, according to -his testimony, had been staying out each and every Monday for several weeks, and the fact that the reason for Siegwart's discharge given at the time of the discharge differs from that given at the hearing raises a doubt with respect to the truth of either alleged reason. Moreover, in weighing Pelham's testimony we must consider Pelham's conduct as revealed by the record as a whole, particularly with reference to the discharge of Appie and Sylvester Wellborn, and other employees, as indicated above. We do not believe that the reasons given by Pelham for the discharge of Siegwart are honest answers to the charge of discrimination in his case. We therefore find that the respondent discharged Siegwart because of his membership in and activity for the T. W. O. C., thereby dis- criminating in regard -to hire and tenure of employment and discouraging membership in the T. W. O. C.-, Dan Kruebbe. The complaint alleges that Kruebbe was -discharged by the respondent because of his- membership in and activity for the T. W. O. C. - Kruebbe was employed by the respondent-as a doffer on-•the day shift for about 9 'months before his discharge. , He had never been laid off or discharged by the respondent before. - He--joined the T. W. O. C. when it first began to organize at the plant. : - . , - About 2 days before his discharge, McCaskill, his foreman, came to him with an anti-T. W. O. C., card demanding another election, and asked him to sign it.. Kruebbe told him that he would sign if all the doffers would. He testified that "they would -not sign it and told me not to:" --McCaskill at that time said to him, "It is going to be hard on you." - - - McCaskill discharged him about October 6; 1937. .With respect to the circumstances of his discharge Kruebbe testified as follows : "I doffed my post and the other doffer was supposed to doff his, and he would not doff his, another boy in the alley, and Mr. Frank (McCaskill) came in and said, `Why don't you doff that alley,' and I said `That is not my alley, we each take turns and everyone doffs his own.alley' and he said `Why don't you doff it?' and I said `That is the other boy's alley ... He is supposed to doff it, it is not. my alley' and I would not doff it." McCaskill thereupon stated "I am afraid I am going to have to lay you off. You never done your work right anyway." • ` . - - • ' - - - None of Kruebbe's testimony was controverted at the hearing. The respondent did not deny that the employee whose post was adja- cent to Kruebbe's refused to doff his alley, nor is -there any showing that such employee was discharged. - Under the circumstances we do not believe that Kruebbe's refusal to doff another employee's post 986 NATIONAL'' LABOR RELATIONS BOARD was the real iea"son'for his discharge. Upon'-the basis of the facts set forth; particuhirly the conduct of 'McCaskill; and upon the basis of the"" record as a whole, we are of the opinion that Kruebbe -was discharged because of his membership in the T. W. O. C. We find that the respondent, by discharging Kruebbe discriminated in regard to hire and tenure of employment thereby discouraging membership in the T. W. O. C. At the time of his discharge, Kruebbe earned $6.84 weekly. George Kovacs. The complaint alleges that Kovacs was dis- charged by the respondent because of his membership in and activity for the T. W. O. C. and also because he testified at the hearing in July. Kovacs Was employed by the respondent as a warp tier on the day shift. Before his alleged discharge, he worked for about a year and a half. No complaints 'vere ever made about his work. He joined the T. W. O. C. when it first started to organize at the plant. He was active on behalf of the T. W. O. C. He testified at the hear- ing in July. He went out on several occasions with Haynes and "we signed up different people." Kovacs quit his job about October 6, 1937. He testified that 3 weeks before that date work from the night shift began to be piled up for him when he came in to work in the morning. When he com- plained the first two or three times he was given help. During the last 2 or 3 days of his employment, however, Fonti, his overseer, said he did not have any spare hands and did not know whether he could get anyone to help him, and he received no relief. On the morn- ing of October 6, Kovacs came in, saw extra warps left over from the night shift for him to tie in addition to his own, worked 40 minutes, and quit without asking Fonti for relief. Kovacs testified that he had twice as much work to do as each of the two other warp tiers in his department. Work from the night shift was not left over for the other warp tiers as it was for him. About this time many looms in the weaving department on the night shift had been stopped. Kovacs admitted that the section of looms on which the other two warp tiers worked had not been in operation on the night shift during the last 3 or 4 weeks of his employment. The section of looms on which he worked, however, continued to operate at night. Kovacs inquired from the night superintendent about the warp tier on his section on the night shift, but "got no satisfaction." Fonti testified that Kovacs quit without asking him for assistance, and that he gave him no reason why he quit. He also stated that he gave him assistance when Kovacs asked him for it. DECISIONS AND ORDERS 937 Upon the basis of the facts set forth above, we do not find that the respondent discriminated against Kovacs because of his membership or activity in the T. W. O. C. 3. The lay-offs between August 26 and September 15, 1937 Thirty-eight employees named in the complaint were laid off by the respondent between August 26 and September 15, 1937. The circum- stances under which these lay-offs occurred are set forth below. a. Lay-offs from the weaving department The following employees named in the complaint were laid off in the weaving department during this period : Margie Williams, Della Wallace and Nellie Donahue. Williams began to work for the respondent in February 1937. She joined the T. W. O. C. in March and solicited members. She was laid off from the night shift on August-26 by Richards, her foreman, who said,, "Well, girls, I haven't anything else for you all to do." Williams asked him why, and he said, "I don't want no one around here inter- fering that belongs to the C. I. O." Wallace was employed by the respondent for about a year on the night shift before she was laid off on August 27. She testified that a few others were laid off at the same tiriie that she was. She'was a member of the T. W. O. C. and her husband was an officer. No complaints had been made about her work, but other employees were kept at work in her department who had been there for a shorter period than she had. Nellie Donahue was employed by, the respondent off and on for 8 or 9 years., She was last hired in May 1937. She was, a, spare hand weaver on the day shift. She was laid off on September 1. Her foreman told her he was sorry and :that the lay-off was, tem- porary. He said he would:put her back as soon as the department started again. She had never been laid off , or discharged before. No complaints had been made about her work. She testified that some employees in her department were employed after she was. She was replaced by a girl from the night shift. She testified that "when they laid me off . . . a girl was already on my looms." She applied for reinstatement four times. She, was told. to come back each time. The last time she was intercepted by Ida Hurdy Austin and told to sign an anti-T. W. O. C. card if she wanted her job back. She signed the card but it does not appear that, she was taken back. The pay roll reveals that about 30 other employees were laid off from the weaving department on the night shift about ;the same time that the above employees were laid, off. A few employees were laid off from the day shift at the same time. 988 - NATIONAL LABOR RELATIONS BOARD At the time of her lay-off Williams was earning $6.10 'for a 5-day week. Since she has been laid off, she has found no other employ- ment and has had no earnings. Wallace was earning $9.75 weekly at the time she was laid off and has since had no earnings. Dona- hue was earning $5 weekly at the time she was laid off. It does not appear .whether she has since found other employment. b. Lay.-offs in, the spooling room, Dora Baker, Ida Dorn, Jane Durant, Lillian Flores, Bella Guidry, Eula Hardeman, Adveline Himmel, George Laborde, Albert LeJaunie, Lawrence LeJaunie, Olive Landry, Annie Peters, Willa Pitts, Palmmire Reiss,, Amelia Ruppert, Hallie Washington and Florence White. These 17 employees named in the complaint were laid off in the spool- ing room on the night shift between September 8 and September 12,. 1937. Most of them were employed as spoolers. About 45 were employed in this room before the lay-off began. 'It appears that by September 10 all employees in the room-had been laid off with the exception of nine. Of those named in the complaint eight were laid- off on September 8. The other nine were laid off within the next 4 days. When the news that the T. W. O. C. had won the election became known on the night of September 7, some employees in the, spool room- displayed excitement. Immediately thereafter that eve- ning a section of employees in the room' was sent home. Hallie Washington, who worked in the spool room putting binders in boxes and who was laid off on September 8, testified that McCaskill, her foreman, said to her when she was laid off, "Anybody who was in the C. I. O. did not have no more job." She was also told by him when she applied for reinstatement a few days later that she could not have a job because she had "joined the C. I. 0." The 17 employees' had been employed by the respondent for pe- riods ranging from a few months to 5 years. All but one were members of the T.' W. O. C. Several solicited members for the T. W. O. C. and several attended its meetings. Two testified they had been employed longer than other employees who remained. No complaints had been made about the work of any of them. A few were told they were being laid off because of slackness of work. Others were given no reason. Although there is some evidence that work had been slack in the spool room for some time prior to September 8, apparently due to a shortage of yarn, and that some of the spoolers worked 4 days a week instead of 5 for that reason, the record discloses that work in the spooling room was no more slack on September 7 and 8 than it had been for 2 months prior to those dates. 'DECISIONS.AND ORDERS 989 I "I The weekly earnings 'of these employees at the time of their lay-off and their earnings since that time are stated below : Employee Weekly 'earn: rags Earnings since lay-off 11 Baker -------------------------------------------- $6 10 (1) 6. 95 None Durant-------------------------------------------- 7.00 None Flores--------------------------------------------- 6. 10 None Guidry-------------------------------- --------------- •8. 04 None E. Hardeman---------=---------------------------- 8. 00 None Himel--------------------------------------------- 6 10 None Laborde---'------ I---I------------------------------ 9 75 None A. LeJaunie -------------------------------------- 9. 75 $10 L. LeJaunie---------------------------------------- 10. 50 $8 Landry-------------------------------------------- 6. 10 None Peters--------------------------------------------- (2) None Pitts---------------------------------------------- 7. 32 None Reiss---------------------------------------------- 6. 10 None Ruppert------------------------------------------- 8 50 ^3) Washington---------------------------------------- 6. 10 (t) White=--------------------------------------------- 6. 10 None 1 Evidence lacking. 7 From $6 to $7 98 on piece work. 3 Between $30 and $35. Most of these employees stated at the hearing that they desired to be reinstated to their form'er'positions. c. Lay-offs in the spinning room Five employees named in the complaint were discharged or laid off in the spinning room during the first 2 weeks of September 1937. Alice Miller. Alice Miller was employed by the Company for a period of about 6 months as a sweeper on the night shift. She was laid off on September 2. She had never received any complaints about her work. She joined the T. W. O. C. on August 17 and was active on its behalf. On September 1 a meeting of the T. W. O. C. was held at her home. She sent word by Dora Mack, an employee in her department, that her daughter was sick that night. Dora Mack testified that she delivered the message to Pelham and that he said "it was all right." Pelham laid off Miller the next evening and told her, "I was informed that you had a C. I. O. meeting at your house last night ... if you could stay home to hold a C. I. O. meet- ing at your home you are no more needed in the Lane Cotton Mills." About 2 weeks after she was laid off, she asked Pelham for reinstate- ment. At that time Pelham said, "Let the C. I. O. take care of you, you are not needed here any more." Although Miller falsified the reason for her absence from work on September 1, it is clear, under , the circumstances, that neither her absence nor her failure to give the true reason for it, but rather the 990 NATIONAL LABOR RELATIONS BOARD fact that a meeting of the T. W. O. C. was held at her home, was the motivating cause of her lay-off. Miller earned $6.10 weekly at the time of her lay-off and has had no earnings since that time. Zular Moore, Myrtle Wellton, Dorothy Brown, Etta Phillips, Dora Mack. The first four named employees on the night shift in the spin- ning room were laid off on September 8. Mack was laid off on Sep- tember 9. These employees had been employed for periods ranging from a monthi to 2 years. Moore, Wellton, Phillips and Mack were members of the T. W. O. C. at the time they were laid off. Brown became a member after she was laid off. Mack, a sweeper in the spinning room, was told by Redner, her foreman, on the night of September 7, in answer to a question why so many were being laid off, that "He was going to get rid of all those damn people that joined the C. I. 0." At the time of her lay-off, however, Mack was given no reason. Nor were the others, with the exception of Brown, who was told there was no work for her. Wellton, another sweeper, had also been told by Redner a few months before the lay-off that "Oden- heimer is going to get rid of all C. I. O. members." The testimony of these employees reveals that others in the spin- ning room were laid off at the same time. Moore, however, testi- fied that she was immediately replaced,bv,,an.,employeq,from another section of the department, who "wasn't exactly new, a new hand, I saw her there before)., : - but,I -was :there ,when night work first started." Mack was employed on a quill machine and testified that three other employees engaged in"that work wlho had "been 'there-less time than she had were not laid' off when she was. - She also testified Chat Mary{ Nolile, an employee in her ' departrneut, tool: her place and that, although she did not know whether Mari Noble was or was not a member, of the T. W. O. C., she had talked to her about the T. W. O. C. and Noble had said "Daiiin the • C. I. O." More and Mack applied for reinstatement and were fold that no employees were needed: ,At the time of their lay-offs, Moore, Wellton, Brown, Phillips and Mack were earning $10.25, $6.10, $10.25, $10.40, and $6.10 per week, respectively. None of them have had any earnings since that time. All of them stated at the hearing that they desired to be reinstated to their, former positions. d. Lay-offs in the warp room Viola Victoriana and Josephine Accardo. Victoriana was hired by the respondent in September 1936. 'Accardo was ; employed for 4' months. Victoriana rindAccardo were creelers in the warp room on the night shift. Seven were engaged *in that work: Victoriana DECISIONS 'AND • ORDERS 991 had been' there longer than three or four of the others. She joined the T. W. 0. C. in June. , No-complaints were made about her work. The day, before the election,, Iiebiaric, her foreman, had told her, "Vote right, because if you don't, .Mr. Odenheimer is going to shut the windows ,for 5 months." Leblanc asked both Victoriana and Accardo before the election whether they had joined the T. W. 0. C. and, upon being answered in the' affirmative, whether they wanted to resign. Victoriana was laid off on September 8 and told the rea- son was "too much help." She testified that no other employees were laid off on the same date.' Accardo, who had joined the T. W. 0. C. when it first started to organize at the plant, was laid off on September 10, and testified that three other employees were laid off that same night. She had been employed there longer than the two remaining employees. She also testified that the remaining employees were not members of the T. W. 0. C. At the time she was laid off Victoriana was earning $7.07 per week. She has made no earnings since then. She desires to be reinstated to her former position. Accardo also was earning $7.07 weekly when she was laid off and has since had no earnings. e. Lay-offs in the card room During this period, the first and fourth floors of the card room on the night shift ceased operations. Those named in the complaint who were laid off in that department are as follows : . Frederick Landry. Landry was employed by the respondent as a stripper's helper on December 21, 1936. He joined the T. W. 0. C. on May `26 'and° solicited members. Shortly after Mattie Brewer's dis- charge Landry "asked a man to give me his name so that I could prove that her work was all right." Howard told him with reference to that incident, "What business you got to ask people their names in the mill?" Landry was told by Garris in July that "it is too bad, if you belong to the C. I. 0. . . . There is lots of them in here that don't belong to the C. I. 0. and they want their jobs." Landry came in late on August 27 and found another employee in his job who had previously been employed in it. Landry was not rebuked for, coming in late, but was told lie was being laid off because "they wanted to put some of the old men to work." He was reinstated on September 3. He was laid off again after the election on September 8. Garris told him, "Ryckman told me to. lay you off." And when he received his pink slip from Howard, Howard said "Your machine is shut down." At the time he was laid off Landry was earning $9.75 weekly. He has since earned $31 doing odd jobs, and desires to be reinstated to his former position. 992 NATIONAL LABOR RELATIONS BOARD Rita Hammer, Junius Arcenaux, Melba Brehm. These employees were employed for periods ranging from a few weeks to 11/2 years. They were all members of the T. W. O. C. Hammer did not go to work on September 8 because she was ill. On September 9 she was told that the fourth floor had been shut down. Arcenaux was an oiler on the first floor of the card room. He was laid off on September 15 and told by Howard that "he did not need him any more ... he had to keep the oldest hands." An oiler from the third floor took his place. Simoneaux, second hand on the second floor, asked him before his lay-off whether he had joined the T. W. O. C. and told him he did not think "it was much." Brehm was laid off on the same date as Ar- cenaux and was told, together with other employees, that "they were not needed any more." Hammer, Arcenaux and Brehm were earning $8.78, $11.14, and $8.78, respectively, at the time they were laid off. Arcenaux has earned $2 since that time. The other two employees have had no earnings. All three desire reinstatement to their former positions. f. Lay-offs in the lapper room The night shift in the lapper room, consisting of six or seven em- ployees, was laid off on September 9. Among these Henry Martinez is named in the complaint. Murphy Falgout, also named in the com- plaint, was employed on the day shift in that department. Henry Martinez and Murphy Falgout. Martinez was employed for a 3-week period before the lay-off. Two.years before that time, he had been employed by the respondent. He joined the T. W. O. C. on June 16. The working 'hours on ,the- day shift in the lapper -room were increased from` 9 to 13 after the night shift was laid off 13. Fat- gout, who had been employed by the respondent for 10 months, was laid off from the day shift on September 10. He was told that he was going to be replaced by a man from the night shift. Falgout was also a member of the T. W. O. C. and solicited for it. His, job consisted of filling hoppers in the lapper room. Two other employ- ees, one of whom had been there less time than Falgout, were not laid off. Martinez and Falgout were earning $11.58 and $11.00 per week, respectively, at the time they were laid off. Since that time neither .has had any earnings. Both desire to be reinstated to their former positions. g. Other lay-offs Charles Ziegler. Ziegler was employed on the day shift in the mason room for a period of 2 months before he was laid off on Sep- I3 Martinez claimed to know this because he lived directly across the street from the -mi11. DECISIONS AND ORDERS _993 tember 10. He was engaged in filling hoppers. - He, had received no -complaints about his work. His rate of pay was raised twice within 3 weeks before his lay-off. He joined the T. W. O. C. before the elec- tion. Joe Lalla, his foreman, told him when he was laid off that "it was not on account of the C. I. 0., but they wanted to put an older .man to work." Ziegler was earning $8.10 per week at the time of his lay-off and since that time has had no earnings. He desires reinstate- ment to his former position. John Marshall. Marshall was employed by the respondent for a period of 6 months before he was laid off on September 10. He was engaged in picking up cloth in the weaving department on the day shift. He joined the T. W. O. C. when it first began to or- ganize at the plant, and solicited for it. He had never been laid off before and Ryckman had praised him for his work. Fonti, the overseer, told him at the time he was laid off, that "he did not need me no more, he is going to put an old timer in my place . . ." Marshall was earning $9.75 weekly at the time of his lay-off and since that time has earned about $15. He desires, to be reinstated to his former position. ' Frank Troncale. Troncale was employed by the respondent in July 1937, in the weaving. room. Some time later he was transferred to the dye house as a dye mixer on the night shift. He joined the T. W. O. C. in August. No complaints were ever made about his work. His overseer laid him off on September 8 and give him no reason for the action. Of seven men employed in the dye house on the night shift three employees, including Troncale, were laid off at the same time. He testified that "the other two they put in some other part of the mill." Troncale testified that at the time he was laid off the day and night shift together made four "runs" and that after he was laid off. they continued to make three and four, "runs." At the time he was laid off Troncale was earning $12 weekly and since that time has made no earnings. He desires to be rein- stated to his former position. - James Hamilton. Hamilton was employed by the respondent as a painter on the day shift since 1932. He joined the T. W. O. C. on June 14. No complaints had ever been made about his work. His foreman, Goodell, laid him off on September 8. Goodell said it was Ryckman's orders. A carpenter was laid off at the same time. Ham- ilton applied for reinstatement on September 25. Ryckm'an said they were not putting anyone back to work, but gave him a refer- ence which indicated that Hamilton had been laid off "on account of reduction in force." However, the carpenter who had been laid off together with Hamilton, was reinstated before September 25. Hamilton testified that there were no other painters employed by the respondent and that the carpenters, with whom he worked, 994 NATIONAL LABOR- RELATIONS BOARD "painted'around." He admitted that his 'Job gave out several times in the last year" and he "did not know what to paint next." How- ever, he had left a painting job unfinished, when he was laid off and he testified that on September 25 he noticed that the unfinished job had been completed. The carpenter referred to above told him he had finished the job. Hamilton was earning $12.38 per week at the time he was laid off. Since that time he has had no earnings. h. Conclusions with respect to,the lay-offs between August 26 and September 15, 1937 The pay roll submitted for the election reveals that on August 26 and 27, immediately after the Board issued its Direction of Election, about 30 employees were "discharged" from the night shift because of "no work." Most of these employees were employed in the weaving department. Among them were Williams and Wallace. Donahue, who, was also laid off at that time from the day shift, was replaced 'by a -night-shift employee. Testimony reveals that within a period from September 8 to September 15, 1937, the following departments of the night shift ceased operations : The weaving department, first and fourth floors of the card room, the lapper room, most of the spooler room, and one-half of the spinning room. The number of dye-house employees was also reduced. The respondent contends that it was compelled to reduce the num- ber of its employees in order to reduce production, and that it was compelled to reduce production because it had continued for a period of several months, -to produce more goods than it could sell, as indi- cated above. The respondent thus claims that approximately 250 employees were laid off from the night shift from the first week in August to the hearing of October 18, and that at least 150 employees were laid off from the night shift after the election. It is clear from the record, however, that only 13 employees in addition to those found above-to have been discriminatorily laid off, were in fact laid off by the respondent because of lack of work before August 24, although overproduction at the mill had continued for many months before that time. It is significant that about 40 em- ployees were laid off immediately after the Board issued its Direction of Election on August 24. Furthermore, the decision to lay off a number of departments of the night shift, causing the lay-off of over 150 employees, was in fact made on the morning of September 8, the day after-the election. In view of the respondent's previous course of illegal conduct, it is difficult to believe that the fact that this decision -was made immediately following the election is merely a coincidence. It is not clear whether"the respondent also claims to have reduced production on its day shift during the latter part of August and the month of September, although Hickey clearly stated with respect to DECISIONS - AND> ORDERS . • 995 -the last week of July that they "continued the usual: production on the day shift." However, the pay roll indicates that about 10 em- ployees were "discharged" from the day shift about August 27, because of "no work" in various departments. A few day-shift em- ployees were replaced by employees from the laid-off night shift. -Thus, Donahue and Marshall were replaced by employees from the night shift. Falgout was told that he would be so replaced. The day shift as a whole was reduced from a 9-hour shift to a 7-hour shift on September 8, 1937. Moreover, there is some evidence that production on the day shift was increased between the time of the lay-offs on the night shift and the October hearing. Doffers on the day shift testified that they had .recently been given more frames to doff. Moreover, the overseer of the spinning room admitted, as indicated above, that during the week of October 18 he was short of help and stretched out his employees to two more frames. In addition, the day shift in the lapper room was increased from 9 to 13 hours after the night shift was laid off after the election, admittedly to make up part of the loss of produc- tion on the night shift. Furthermore, since the general 7-hour shift had been put into effect, the half-hour for lunch previously given to employees, has been taken away. Ryckman assigned as a reason for .this that a lunch period on a 7-hour shift was "impracticable." The -respondent introduced no evidence other than oral testimony in support of its contentions set forth above; nor did it indicate more specifically than as set forth above the extent of reduction in produc- tion and the number of employees laid off from each department. About July 20 one employee was told by the night overseer of the spinning room that Odenheimer would shut the mill down if the "C. I. O. won the fight." The day before the election another employee was told by her second hand to "vote right" or Odenheimer would close his plant for several months. On the night of September 7, immediately after the election results were known, a section of the spool-room employees were sent home by the foreman, following excitement among them caused by the - news of the election. The foreman told them he thought they could come back the next evening. It was the next evening that the lay-offs from the spool room began. The respondent's position with respect to the reason for the lay- offs at this time is considerably weakened by the facts set forth above, especially in view of the respondent's other unfair labor prac- tices. Throughout this period both before and after the election, supervisory employees in the weaving room, spinning room, and spooling room indicated by statements to employees who were being .laid off, that the lay-offs were made in order to discourage mem- bership of the respondent's employees in the T. W. O. C. In the 134068-39-vol. ix-64 ,996 NATIONAL LABOR 'RELATIONS -BOARD face of such statements, which are set forth above, the respondent's contentions carry little weight. - The respondent argued in its brief that, while it is true many de- partments of the night shift began to be closed up the day after the election, this course of action was decided upon long before the election; that the respondent had withheld putting into effect its decision to curtail production pending the outcome of the election, because of the very charge that might be made that it was done in order to influence the election. In view of the respondent's course of illegal conduct, aside from the conduct now in question, we can- not accept this argument as valid. Our opinion on this matter is confirmed by the fact that the respondent did in fact lay off many employees between the Direction of Election and the election itself. The complaint as amended at the hearing alleged that in laying off and discharging employees named therein, the respondent sought to destroy the membership of its employees in the T. W. O. C. The record sustains that allegation. The respondent's desire to destroy the T. W. O. C. was the primary, if not the exclusive, cause behind the lay-offs during the last week in August and the shut-down of many departments of the night shift after the election. We find that the respondent shut down and curtailed various departments of its night shift during the last week of August and the first 2 weeks of September, thus causing several lay-offs on its day shift to make way for night-shift employees, for the purpose of crushing the T. W. O. C. - - We find that the respondent, by laying off Josephine Accardo, Junius Arcenaux, Melba Brehm, Dorothy Brown, Dora Baker, Nellie Donahue, Ida Dorn, Jane- Durant, Murphy •Falgout, Lillian Flores, Bella Guidry, James Hamilton, Rita Hammer, Eula Hardeman, Adveline Himel, Frederick Landry, Olive Landry, George LaBorde, Albert LeJaunie, Lawrence LeJaunie, Dora Mack, John Marshall,- Henry Martinez, Alice Miller, 'Zular Moore, Annie Peters, Willa Pitts, Etta Phillips, Palmire Reiss, Amelia Ruppert, Frank Tron- cale, Viola Victoriana, Della Wallace, Hallie ' Washington, Myrtle Wellton, Florence White, Margie Williams, and Charles Ziegler, has discriminated in regard to hire and tenure of employment, thereby discouraging membership in the T. W. O. C. and thereby interfering with, restraining and coercing its employees in the exercise of the rights guaranteed by 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 de- scribed in Section I above, have a close, intimate, and substantial DECISIONS AND ORDERS 997 relation to trade, traffic, and commerce among the several States, and have led to and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. THE REMEDY We have found that the respondent dominated and interfered with the formation and administration of the Association and con- tributed support thereto. We shall order the respondent to cease and desist from such domination and interference, and to refrain from recognizing the Association as an organization representative of its employees for the purpose of dealing with it concerning griev- ances, wages, hours of employment, and conditions of work. We shall also order the respondent to bargain collectively with the T. W. 0. C. as the exclusive representative of its employees in the appropriate unit. Since Albert Lapouble, Charles Bartley, Ernest Brandt, Louis Brewer, Mattie Brewer, Peter Grosch, Frank Hardeman, Dan Kruebbe, Charles Siegwart, Edward Smith, Appie Wellborn, Syl- vester Wellborn and the employees named in appendix A, were dis- missed or laid off as the result of unfair labor practices, we shall order their reinstatement to their former or substantially equivalent positions, either on the day or night shift, with back pay in the amount they would normally have earned, less the net earnings 14 of each of them, respectively, in the meantime. Such reinstatement shall be effected in the following manner : All new employees hired after September 15, 1937, either on the day or night shift shall, if necessary to,provide employment for those 'ordered to be reinstated, be. dismissed. If, thereupon, by reason of a reduction in force there is not sufficient employment immediately available for the remain- ing employees, including those ordered reinstated, all available po- sitions on the day or night shift 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 union affiliation or activities, following a -system of seniority to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees re- maining after such distribution, for whom no employment is imme- -diately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, 14 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 work- ing elsewhere 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 Union , Local 2590, 8 N. L. R. B. 440. 998 NATIONAL LAI3OR RELATIONS I30ARD and shall thereafter, in-accordance with such list, be offered employ- ment in their former on in substantially equivalent positions, either on the day or night shift, as such employment becomes available and before new persons are hired for such work. "New employees" or "new persons" as used herein does not include employees who were in the employ of the respondent during the last week in August 1937, and who were laid off together with employees named in appendix A. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. Textile Workers Organizing Committee and Lane Cotton Mills Welfare Association are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and ad- ministration of Lane Cotton Mills Welfare Association, the respond- ent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Albert Lapouble, Charles Bartley, Ernest Brandt, Louis Brewer, Mattie Brewer, Peter Grosch, Frank Hardeman, Dan Kruebbe, Charles Siegwart, Edward Smith, Appie Wellborn, Syl- vester Wellborn, and the employees named in appendix A, and thereby discouraging membership in the Textile Workers Organizing Committee, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By discharging Mattie Brewer, Louis Brewer, and Frank Harde- man because they had given testimony under the National Labor Relations Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (4) of the Act. 5. All of the employees of the respondent, except clerical em- ployees, foremen, assistant foremen, second hands, and all other em- ployees having authority to hire, discharge, or discipline, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 6. Textile Workers Organizing Committee was, on September 7, 1937, and at all times thereafter has been, the exclusive representa- tive of all the employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, within the meaning of Section 9 (a) of the Act. 7. By refusing to bargain collectively with Textile Workers Or- ganizing Committee as the exclusive representative of its employees DECISIONS AND ORDERS 999 in the appropriate unit, the respondent has engaged in and is en- gaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 8. 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. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 10. By laying off Appie Wellborn and Albert Lapouble, the re- spondent has not engaged in unfair labor practices, within the mean- ing of Section 8 (4) of the Act. 11. By discharging George Kovacs, the respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) or (4) 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, Lane Cotton Mill's Company, and its " agents, successors, and assigiis shall':' 1. Ceatise'and desist from: '(a) Dominating or interfering with the; administration of Lane Cotton Mills Welfare Association; or" with the formation or admin- istration of 'any otlier labor organization of its employees, or con- tributing support to any such labor organization; (b) Discouraging membership in Textile Workers Organizing Committee or' any other labor organization of its employees, by dis- charging, laying off, or refusing to reinstate any of its employees or in any other manner discriminating in regard td-their hire or tenure of employment or any term or condition of their employment; (c) Discharging, laying off, or -otherwise discriminating against any employee because he has - given testimony under the National Labor Relations Act; (d) Refusing to bargain collectively with Textile Workers Organ- izing Committee as the exclusive representative of all its employees, except clerical employees, foremen, assistant foremen, second hands, and all other employees having authority to hire, discharge, or dis- cipline; (e) 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 rep- resentatives of their own choosing, and to engage in concerted activi= 1000 NATIONAL LABOR-RELATIONS BOARD ties for the purpose of collective bargaining and other mutual aid and 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) Refrain,from recognizing the Lane. Cotton. Mills Welfare Asso- ciation as a representative of its employees for the purpose of, dealing with the respondent, concerning; grievances, labor. disputes, wages, rates of pay, hours of employment, ,or, conditions of work; (b) Offer to Albert Lapouble, Charles Bartley, Ernest Brandt., Louis Brewer, Mattie Brewer, Peter Grosch, Frank Hardeman, Dan Kruebbe, Charles Siegwart, Edward, Smith, Appie Wellborn, Sylves- ter Wellborn, and the employees named in appendix A, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth in the section entitled "Remedy" above, placing those employees for whom employment is not imme- diately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (c) Make whole the employees named in (b) above and the em- ployees named in appendix A, for ,any loss of pay they have suffered by reason of their discharge or lay-off, by payment to each of them, respectively, of a sum of money equal to that which he would nor- mally have earned as wages during the period from the date of his discharge or lay-off, to the date of the offer of reinstatement, less his net earnings during that period; (d) Upon request, bargain collectively with Textile Workers Or- ganizing Committee as the exclusive representative of all its em- ployees except clerical employees, foremen, assistant foremen, second hands, and all other employees having authority to hire, discharge, or discipline; (e) Post immediately in a conspicuous place on each floor of the respondent's plant notices stating that the respondent will cease and desist as aforesaid, and maintain such notices for a period of at least thirty (30) consecutive days from the date of posting; (f) Notify the Regional Director for the Fifteenth 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 (4) of the Act by laying off Appie Wellborn and Albert Lapouble, and that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) and (4) of the Act by discharging George Kovacs, be, and they hereby are, dismissed. DECISIONS AND ORDERS APPENDIX A Josephine Accardo Junius Arcenaux Melba Brehm Dorothy.Brown - ,Dora Baker Nellie Donahue Ida Dorn Jane Durant Murphy- Falgout Lillian Flores Bella Guidry' James Hamilton Rita Hammer Eula Hardeman Adveline Himel Frederick Landry Olive Landry George LaBorde Albert LeJauni6 Lawrence LeJaunie Dora Mack John Marshall Henry Martinez Alice Miller Zular Moore Annie Peters Willa Pitts Etta Phillips Palmire Reiss Amelia Ruppert Frank Troncale Viola Victbriana- Della Wallace Hallie Washington Myrtle Wellton Florence White Margie, Williams Charles Ziegler 1001