The Cleveland Worsted Mills Co.

In the Matter of THE CLEVELAND WORSTED MILLS COMPANY and TEXTILE WORKERS, UNION OF AMERICA Cases Nos. C-1810 and C-1811.-Decided August 22, 19412 Jurisdiction :' textile manufacturing industry: Unfair Labor Practices Interference, Restraint,- and Coercion: disparagement of union officials; anti- union statements ; attempts to keep company-dominated union alive. Company-Dominated Union: formation, prior to Act, suggested by employer ; constitution furnished by employer provided for employer participation in operation and employer 'approval of change in structure-support ; meetings on employer time and property without loss of pay; insurance benefits of a Benefit Association to which employer made monthly contributions credited to and administered by company-dominated union. Discrimination: discharges because of union membership and concerted activity; refusals to reinstate strikers upon ,application after conclusion of strike not caused or prolonged by unfair labor practices ; new and former employees hired in preference to strikers ; statements made to some of, strikers indicative of intent to discriminate against strikers generally ; charges of, dismissed as to some employees.. Remedial Orders: employer ordered to refuse to recognize dominated union 'should it resume functioning in future-reinstatement and back pay awarded; special formula for back pay devised ; back pay- curtailed for some employees who failed to exercise diligence in filing charges,, alleged misconduct of em- ployees arrested but not convicted, not true reason for denial of reinstate- ment by employer. Practice and Procedure : no effect given to settlement agreement not complied with by employer. Mr. Thurlow Smoot and Mr. Colonel C. Sawyer, for the Board. Stanley & Smoyer, by Mr. W. K. Stanley and Mr. Eugene B. Schwartz, of Cleveland, Ohio, for the respondent. . Mr. David Jaffee, of New,York City, for the Union. Miss Fannie M. Boyls, of counsel to the Board. , ' DECISION AND ORDER STATEMENT OF THE CASE On September 15, 1937, Textile Workers Organizing Committee, herein called the T. W. O. C., filed with the Regional Director for 43 N. L. R. B., No 84. 481039-42-vol. 43 35 545 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Eighth Region (Cleveland, Ohio) of,the National Labor Rela- tions Board, herein called the Board, charges alleging that The Cleveland Worsted Mills Company, herein called the respondent, had engaged in unfair labor practices at its Cleveland plant. Thereafter, the T. W. O.'C. filed charges alleging that the respondent had en= gaged in unfair labor practices at its plants at Ravenna, Ohio, and on March 3, 1938, the Board issued an order consolidating the cases for the purpose of hearing. Subsequently, the Board, by the Re- gional Director, issued its complaint dated March 4, 1938, alleging that the respondent had engaged in unfair labor practices at its plants at Cleveland and Ravenna, Ohio. On May 7,1938, the respond- ent, the T. W. O. C., and counsel for the Board entered into a stipu- lation of settlement, which was approved by the Board on May 10, 1938, providing for 'settlement of the allegations in the complaint and withdrawal of charges by the T. W. O: C. Thereafter, further amended charges were filed by the T. W. O. C. alleging that the re- spondent had failed to comply with-the stipulation of settlement and had engaged in unfair labor practices.' Upon final amended charges filed by, Textile Workers Union of America, herein called the T. W. U. A.,2 the Board, by its Regional Director, issued its second amended complaint dated June 19, 1940, alleging that- the -respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce at its plants at Cleveland and Ravenna, Ohio, within the mean- ing of Section 8 (1), (2),. and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the second amended complaint, accompanied by a notice of hearing, were duly served upon the respondent and the T. W. U. A. With respect to the unfair labor practices the second amended complaint, hereinafter referred to as the complaint, alleged 'in sub- stance that:,-(1) the respondent formed and thereafter dominated and interfered with the administration of, and contributed financial and other support to, labor organizations known as Employees' Rep- resentation Plan, herein called the E. R. P., at each of its three plants 3 "and associated the government of the Cleveland Worsted Mills Company Employees' Mutual Benefit Association, a sickness, accident, and death benefit association-to the Employees' Representa- tion Council of the Employees' Representation Plan" at each of said plants, making membership in the Benefit Association compulsory; (2) the respondent at each of its three plants: (a) threatened or I On October 16, 1939, the Board issued an Order severing the two cases , but on June 14, 1940, issued a further Order revoking the order of severance and consolidating the two cases 2 This organization was the successor to the T w O. C. See Section II, 2nfra. 3 One of the plants of the respondent is located at Cleveland , Ohio, and the other two at Ravenna, Ohio , one of the latter being called the Annevar plant and the other the Redfern plant . See Section I, infra. THE CLEVELAND WORSTED MILLS COMPANY 547, intimated that its employees would be discharged and threatened to curtail or cease production if its employees joined or assisted the Union ; 4 (b) made derogatory statements concerning leaders,, offi- cers, and members of the Union; (c)' promised to give special privi- leges to its employees if they did not join or if they abandoned the Union; (d) communicated with individual employees or small groups of employees to cause dissatisfaction with the Union among its, em- ployees; (e) discriminated against employee leaders or members of the Union by giving them undesirable work assignments; and (f) "willfully misinterpreted communications concerning collective bar- gaining made" by the T. W. 0. C. to the respondent's employees in May and June of 1937, while at the same time dealing directly with leaders, representatives, and members of the E. R. P.; (3) the respond- ent (a) on or about the date` appearing opposite their respective, names discharged the following employees of its Redfern.plant : Frank Russo--------------------------------- November 20, 1936 Roland Watson------------------------------- November 20, 1936 Edna Vogelsong------------------------------ November 29, 1936 Raymond Ferrell----------------------------- May 18, 1937 and thereafter refused to reinstate them because of their union activities; and (b) on or about the date appearing opposite their respective names discharged the following employees from its Cleve land plant : Henry Badaczewski------------------------------- April 30, 1937 Casimer Trzaska---------------------------------- April 16, 1937 and has refused to reinstate them to their former or substantially equivalent positions because of their union activities; (4) on or about June 21, 1937, employees of all three ' of the respondent's plants went out on strike because of the unfair labor practices of the respondent, said strike terminating at Cleveland on August 23, 1937, at Annevar on September 14, 1937, and at Redfern on September 28, 1937; (5) during this, 3-plant strike the respondent (a) ; spoke to strikers indi- vidually and encouraged them to•"disafect"'from the T. W. 0. C. and the strike and threatened that if they did not return to work during the strike they would lose their jobs; (b) made derogatory statements about leaders and members of the T. W. 0. C. and the strikers ; and (c) circulated pamphlets, letters, and other literature among its em- ployees describing labor leaders as "strangers" and otherwise dis- paraged leaders and members of the T. W. 0. C.; (6) the respondent 4 The complaint named United Textile Workers of America, herein called the TI T W A , as one of the labor 'organizations in which the respondent, attempted to discourage,mem- bership The U T W. A. was the predecessor of the T. W. 0 C' All three labor oigam- zations, that is, the U. T, W. A, the T. W. O. C., and the T. W. U. A., are hciem some- times referred to as the Union. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after the termination of the strike at the Annevar plant (a) refused, to reinstate Kenneth L. Cox and Mary Kline; (b) refused to reinstate Anthony Porcase "except irregularly" in the year 1939 and then re- fused to reinstate him to his old or substantially equivalent position; and (c) refused,,to reinstate Harold Workman until on or about May 31, 1938; (7)' the respondent after the termination of the strike at the Cleieland plant (a) 'refused to, reinstate 49 named employees listed in Appendix A of the complaint; s (b) refused to reinstate 63 named employees listed in Appendix B of the complaint until on or about the dates appearing after their respective names; 6 (c) re- fused at any time to reinstate, to their old or substantially equivalent positions 5 named employees listed in Appendix C of the complaint; T and (d) after, reinstating 10 named employees listed in Appendix D of the complaint discharged and laid off said employees; 8 and (8) the respondent after the termination of the strike at the Redfern plant (a) did not reinstate Frank Russo and Roland Watson; (b) did not reinstate Floyd Bradfield,9 Frank Miazga, Anna Porcase, Rose Russo, and Rose (Tannert) Duber until on or about May 31, 1938; (c) did not reinstate Raymond Ferrell until on or about May 31, 1938, and then refused to reinstate him to his former or substantially equivalent position and further discriminated against 1iim so that he was com; pelled to quit work; 10 and (d) did not reinstate Edna Vogelsong until on or about May 31, 1938, "and then failed to reinstate her to her former or substantially equivalent position and further discriminated against her so that she was compelled to quit on or about June 30, 1939." 11 The complaint further alleged that the respondent dis- criminated against all the employees listed in Appendices A, B, C, 5 During the hearing the Trial Examiner granted the motion of Board counsel to dismiss from the complaint the names of the following employees appearing on this list : Martin Beilan, Agnes Fronczak, Mary Jonkl , Rose Kovalcbik , Jennie Lenard, Celia Martin, Eleanor Quella , Stanley Rydzinski , Katherine Tomczak, and Stanley Waskowski During the hearing the Trial Examiner granted the motion of Board counsel to dis- miss from the complaint the names of the following employees appearing on' this list: Katherine Brochu, Marcella Dolnochko, Lillian Dottoli, Alexandria Gosior, Vera Grishke- wicz, Pauline Juchnik , Mary, Kozlowski, Aurora Martinez , Wanda O 'Brien, Viola Parcheta, Marcella Pawlowski, Victoria Politowski, Clara Rlba , Anna Scholtz , Nellie Smutak, Anna Sroczynski , Julia . Walkowski, and Katherine Zdoncik 1 7 During the hearing Board counsel moved to have the name of Sophie Borkowski stricken from Appendix A and added to the names on Appendix C of the complaint. This motion was granted. Also during the hearing the Trial Examiner granted the motion of Board counsel to dismiss from the complaint the names of the , following employees appearing on this list : Frank Mozik, Anna Scholtz, Frances Trzaska , and Julia Walkowski. 8 During the hearing the Trial Examiner granted the motion of Board counsel to dismiss from the complaint the names of the following employees appearing on this list : Kath- erine Brochu , Rose Conde, Marcella Dolnochko, Lillian Dottoli, Kasimer Losinis , Margaret Szalek, Edward Walski, and Katherine Wojcik. During the hearing the name of Floyd , Bradfield was stricken from the complaint upon motion of Board counsel. 10 During the hearing this paragraph was stricken from the complaint upon motion of Board counsel. 11 During the hearing on motion of Board counsel the portion placed in quotation marks above was stricken from the complaint. THE CLEVELAND WORSTED MILLS COMPANY 549 and D of the' complaint because such employees had exercised. their right to engage in a strike and other concerted activity and because they were members of or active on behalf of the Union. On July 6, 1940, the respondent filed with the Regional Director a motion for a more definite statement or a bill of particulars as, to the allegations of the complaint, which motion was referred to the Trial Examiner and was granted by him in part at the hearing. Also on July 6, 1940, the respondent filed its answer to the complaint. _ Pursuant to notice a hearing was held at Cleveland, Ohio, be- ginning on July 11 and terminating on October 19, 1940, before J. J. Fitzpatrick, the Trial Examiner duly designated by -the. Chief Trial Examiner. The Board and the respondent were represented by counsel and participated in the hearing. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the close of the Board's case the Trial Examiner, on motion of the respondent, struck from certain portions of the complaint the, names of three employees.'2 At the opening of the respondent's case the respondent filed an amended and supplemental answer in which it in substance denied that it had engaged in any of the unfair labor practices alleged and affirmatively averred that in'the month of May 1938, in consideration of a large sum of money paid by the respondent to various employees and former employees, and with the consent and approval of the Board, the respondent was released of all claims and demands against it by any of the members of the Union, that the Union withdrew all charges theretofore made, and that none of said sums so paid have been returned or tendered to the respondent; and that by reason of said facts the employees alleged' to have been discriminated against, the Union, and the Board are barred and estopped from charging the respondent with any violations of the Act prior to the date of the withdrawal of said charges. At the close of the hearing the Trial Examiner granted a motion by Board counsel to conform the pleadings to the proof in formal matters. / After the close of the hearing the respondent presented to the Trial Examiner three motions to dismiss certain allegations of the complaint. The Trial Examiner denied these motions in his Inter- mediate Report., During the course of the hearing the Trial Examiner made rulings on other motions and on objections to the -'admission of evidence. The Board has reviewed the rulings of the Trial "The name of Frances Trzaska was stricken from Appendix B, and the names of Rose Miller and Agnes Wojcik were stricken from Appendix D, and certain testimony was stricken from the record . Board counsel joined in the motion to strike the names of Rose Miller and Agnes Wojcik from Appendix D. ` 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner and finds that no prejudicial error was committed. The rulings, except as hereinafter noted, are hereby affirmed. Subsequent to the hearing counsel for the'respondent and for the Board filed briefs with the Trial Examiner. Thereafter, on Janu- ary 28, 1941, the Trial Examiner filed his Intermediate Report, copies of which were duly served on the respondent and the Union. He found that the respondent had engaged in and was engaging in un- fair labor practices affecting commerce, within the meaning of Sec- tion 8 (1), (2), and. (3) and- Section 2 (6) and (7) of the Act but recommended that the complaint be dismissed insofar as it alleged that the respondent had discriminated against 24 employees listed in Appendix C to the Intermediate -Report. The Trial Examiner recommended that the' respondent' cease and desist from the unfair labor practices found and take certain affirmative action designed to effectuate the policies of the Act. . Thereafter, the respondent and the Union each filed exceptions to the Intermediate Report and a brief and supplemental brief 13 The respondent also filed an application for leave to adduce additional evidence for the purpose of showing that subsequent to the issuance of the Intermediate Report it had offered reinstatement to a number of the employees found by the Trial Examiner to have been discrim- inatorily denied reinstatement. Since the petition relates solely to matters of remedy and not to the merits of the case, adequate pro- vision for the proposed evidence will be made in our order.' 4 The petition is therefore denied. Pursuant to notice duly served upon the respondent and the Union a hearing for the purpose of oral argument was held in Washington, DX., on October 23, 1941. Both • the respondent and the Union were represented by counsel and par- ticipated in the argument. The Board has considered the exceptions and the briefs filed by the respondent and the Union and, insofar as the exceptions are inconsistent with the findings, conclusions, and, order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a corporation organized under the laws of the State of Ohio with its principal office and largest plant at Cleveland, Ohio. It is engaged in the manufacture and production of textiles 18 Counsel for the Board also filed exceptions and a brief in support thereof but later withdrew them. We have not considered these exceptions and brief 14 Our order provides that the respondent shall offer reinstatement to those employees to whom it has discriminatorily denied reinstatement "if-'it has not already done so." THE CLEVELAND WORSTED MILLS COMPANY 551 and, in addition to its plant, at Cleveland„has 2 smaller plants located at Ravenna, Ohio, known, respectively, as the Annevar and Redfern plants 15 The total purchases of raw materials for the year 1936, which was a normal year insofar as the respondent's business is con- cerned, were valued at approximately $4,400,000. About 90 percent of these raw materials came, from sources outside the State of Ohio. During the same period, sales of finished products amounted to ap- proximately $6,685,000 in value. About 80 percent of these products was shipped to points outside the State of Ohio. The respondent maintains a sales office in New York City. The respondent in its answer and amended and supplemental answer admitted the inter- state character of its business. At the time a strike occurred at- its plants in 1937 the Cleveland plant employed approximately 2,000 employees, the Annevar -plant approximately 400, and the Redfern plant approximately 300. II. THE ORGANIZATIONS INVOLVED United Textile Workers of America, affiliated with the American Federation of Labor, and Textile Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, were labor organizations admitting to membership employees of the respondent during part of the time covered by the events mentioned herein. Textile, Workers Union of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to mem- bership employees of the respondent. It is the successor to the T. W. O. C., which in turn succeeded the U. T. W. A. at the respondent's plant. - Employees' Representation Plan was an unaffiliated labor organiza-- tion, separate branches of which were established at the respondent's Cleveland and Redfern plants in 1934 and functioned at each of those plants until about May 1937. III. THE UNFAIR L4BOR PRACTICES A. Background; the E. R. P. 1. Origin of the E. R. P. In 1933 separate locals of the U. T. W. A. were established at the Annevar, Redfern, and Cleveland plants of the respondent. In De- cember 1933 Frances White, superintendent in charge of all the re- spondent's plants, called the Annevar officials of the U. T. W. A. into ' Fabrics are woven at Cleveland . Auxiliary spinning is done at the Redfern plant and some dyeing and finishing at the Annevar plant. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his office and said to them, "I hear that you fellows formed a union.' The union officials admitted that they had done so , whereupon White stated that the Union would not do the employees much good, under the N: R. A.; that he could discharge any employees he wanted to whether they had a union or not. White then suggested a plan for the employees' "own union" similar to one which he said was then 'being put into effect in the Cleveland plant. - In or. about January 1934, according to Eugene Duber, who was then treasurer of the Annevar local, White and Louis O. Poss, presi-, dent of the respondent, called a meeting of all employees, including supervisors , at the Annevar plant. Duber testified that at this meet- ing White introduced Poss, who described a representation plan which he said was being put into effect in the Cleveland plant, stated, that he would like to see a similar plan inaugurated at Annevar, and explained the sick benefit and other features of the proposed plan; that several times during this meeting Duber asked Poss what objec- tion he, Poss, had to the employees affiliating with the American Federation of Labor and that Poss, in reply, called Duber ' a scoun- drel and a dictator but ignored the question .' Poss denied that he attended this Annevai meeting or that he had any discussion with Duber concerning affiliation with the American Federation of Labor. Frances White, no longer employed by the respondent, did not testi- fy. The Trial Examiner in his Intermediate Report commented that he was impressed by Poss' lack of frankness and sincerity and that Poss' testimony generally was evasive and unconvincing . In view- of the Trial Examiner's observation concerning the nature of Poss' testi- mony and other evidence of the respondent's participation in the formation and administration of the E. R. P., we credit, as did the Trial Examiner, Duber's . testimony with regard to the Annevar meeting. About a week after this meeting ,a pamphlet entitled "Employees' Representation Plan, The Cleveland Worsted Mills, Ravenna, Ohio, Annevar Mills , Redfern Mills" and containing the constitution of the proposed plan was distributed to employees in the Annevar plant by a foreman. On February 14, 1934, a constitution for the proposed E. R. P. was submitted to the employees at the Cleveland plant and at an election held in the plant was adopted by a majority of the employees. An election for representatives was subsequently held and a formal organization was then set up. After a hearing,the National Labor Board on August 15 , 1934, conducted an election among the employees of the Cleveland and Annevar plants to ascertain their desires for a collective bargaining representative . The employees at Cleveland chose ,the E . R. P., and the employees at Annevar the U . T. W. A. THE CLEVELAND WORSTED MILLS COMPANY 553 The E. R. P. did not function thereafter at Annevar,'the respondent extending recognition to the U. T. W. A. as the representative of those employees. Although the record does not show whether or not employees of the Redfern plant ever selected the E. R. ,P., it does show that the E. R. P. was in existence at that plant from 1934 until the spring of 1937. The E. R. P. also continued in existence at the Cleveland plant until sometime in the spring of 1937. 2.' The structure and, operation of the E. R. P.; domination, interference, and support by the respondent The written constitution of the E. R. P. at the Cleveland plant is substantially identical with that of the E. R. P., at the Redfern plant. The two may be treated together. According to the constitution, the purposes of the E. R. P. were to promote cooperation between the Company and its employees; to give the employees a voice in matters of mutual interest in- cluding safety, sanitation, hours" of work, wages and other work- ing conditions; to provide an orderly and expeditious procedure for the prevention and adjustment of differences; and to-afford a means through which the management may furnish in- formation. The constitution, among other things, provided that all employees except supervisors with power to, hire and discharge were entitled to vote in semi-annual elections for representatives from their respective divisions and that only employees, "with one year of continuous service with the Company," who were 21 years of age or over and were either American citizens or declarant aliens, were eligible for election as representatives. ' It also provided for the election of employees to an Employees Council, which was to choose from among its members a committee of three, who, with three members appointed by the management, was to constitute a Joint Committee. The duties of the Joint Committee were "to consider all matters relating to hours of work, wages, working conditions, or any other matter of mutual interest that the Employees Council wishes to present to the Man- agement for their consideration, or that the Management wishes" to present for the Employees' consideration." The constitution made no provision for meetings of the employees generally but. provided for monthly meetings of the Employees Council and for special meetings of the Council to be held at the request of the chairinamof the Council or at the request of the Joint Committee. Meetings of the Joint Committee were to be called either by the chairman of the Council or by the management. The 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constitution provided that "the Company shall provide suitable places for. meetings of the Employees Council and its committees," and that -employees attending these meetings should "receive their regular pay from the Company for such time as they are necessarily absent from work for these purposes." The only method provided in the constitution for the alteration or amendment of the E. R. P. was by -a two-thirds vote of the Joint Committee. It provided, however, that the E. R. P. could be repealed entirely by a 60-percent vote of all the employees,of the respondent. Thus, it is apparent from the provisions of the constitution itself that the E. R. P. was associated closely with the management of the re- spondent and that it was incapable of functioning independently of the management. That the E. R. -P. did not in fact function inde- pendently is shown by other evidence in the record. At Cleveland elections were held in the plant during working hours. At Redfern after one of the employees had complained to Plant Superintendent Kaye in November' 1936 that there was no E. R. P. representative in his department, Kaye replied that the matter would be taken care of. Shortly thereafter a new representative was elected. Upon the basis of the facts set forth above, it is evident, and we find, that the origin and structure of the E. R. P. were such as to insure complete domination and control by the respondent and to render, the organization incapable of functioning as a real bargaining agency for the employees. In selecting employee representatives to represent them in meetings with the respondent, the employees were restricted to employees of the respondent. - These representatives looked to the respondent, not to the employees, for compensation for time spent in connection with their duties as representatives. No general meetings of the employees were either provided for or held as a matter of practice. Employee-participation'in the E. R. P. was limited to voting, in semi-annual elections; the employees had no effective or certain voice in the determination of issues or decisions on policy'; and no opportunity was provided whereby they might formulate their, demands and instruct their representatives. All meetings were held on the property of the respondent. Elections were held in the plant during working hours. Finally, by the require- ment that the E. R. P. could be altered or amended only by a two- thirds vote of the Joint Committee, half of whose members were appointed by the management, the essential structure of the E. R. P. could not be altered without the consent of the respondent. Such control of the form and structure of a. labor organization by an employer obviously subjects the operation of the labor organization THE, CLEVELAND WORSTED MILLS COMPANY 555 to the will and domination of the employer and deprives the em- ployees of the complete' freedom of action guaranteed to them by, the Act.", Associated with the E. R. P. was an Employees' Mutual Benefit Association. The record is not clear as to the exact scope' of this organization-whether there was one organization for all three plants or separate organizations for each of the three plants. In any event, the constitution of the Benefit Association provided that the members of the board of directors of the Association were to be employee representatives elected by the Employees Council of the E. R. P. and that the Association's secretary was to be appointed by the manage- ment. Until the fall of 1937 membership in the Benefit Association was compulsory for all employees of the respondent. The Benefit Association insured its members against sickness, accident, and death, and the respondent made a monthly per capita contribution, which together with the dues paid by the members, constituted the funds of the Benefit Association. The respondent permitted the E. R. P. to administer and take credit for this group insurance financed in large part by the respondent and made compulsory for all employees. Such practice clearly constituted support to the E. R. P. by the respondent.17 Upon the basis of-the facts set forth above, we find, as did the Trial Examiner, that the respondent dominated and interfered with the administration of and contributed financial and other support to the E. R. P. at the Cleveland and Redfern plants from July 5, 1935, the effective date of the Act, until the E. R. P. ceased to function at these plants in about May 1937, and that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.18 38 See N. L R B V Newport News Shipbuilding and Dry Dock Company, 308 U. S. 241; Matter of Bethlehem Shipbuilding Corporation, Limited and Industrial Union of Marine and Shipbuilding Workers of America , Local No 95, 11 N. L. R B. 105, enf'd N. L R. B. V. Bethlehem Shipbuilding Corporation , 114 F ( 2d) 930 (C C A 1), pet, for cert. dis- missed on January 13, 1941, Matter of Bethlehem Steel Corporation and Steel Workers Organizing Committee, 14 N. L R. B 539, Matter of The Colorado Fuel and Iron Cor- poration and International Union of Mine, Mill and Smelter Workers, Local 41j2, 22 N L R B 184; Matter of Phillips Petroleum Company and Oil Workers International Union, Local No. 309, 24 N L R. B. 317. r See Matter of J. Greenebaum Tanning Co and United Shoe Workers of America, Local 29 (C. 1. 0 ), 25 N L R B 672, enf d, N L R B. v. J. Greenebaum Tanning Cc, 110 F. ( 2d) 984 (C. C A 7), cert denied 311 U. S 662 ; Matter of International Har- vester Co and Local Union 57, International Union, United Automobile Workers of America, 2 N L R B 310, Bethlehem Shipbuilding Corp . v. N. L. R. B, 114 F. (2d) 930 (C C A 1) ; Wilson cf Co v. N L. R B., 103 F. (2d) 243 (C. C A 8) 38 The respondent has contended before the Trial Examiner and the Board that the complaint issued in March 1938 which led to the settlement in May 1938 did .not contain an allegation with regard to the E. R . P and that the E. R. P. has not been in operation since sometime ,in 1937 The respondent argues that the Board is therefore estopped from pressing the case as to the E R. P. in 'the present proceding . This contention is plainly -%i ithout merit. As shown below, the respondent did not comply with the settle- ment and, in any event, the settlement did not relate to the E R. P. Moreover, the contentions above set forth do not constitute a defense to an allegation of unfair labor '556 DECISIONS -0F "NATIONAL LABOR RELATIONS BOARD - B. The 1936 discharges at the Red fern. plant 1. Roland Watson and Frank Russo "OriNovember 18, 1936, Roliind'Watson, a weighman in the spinning department at the Redfern plant, prepared a petition addressed to the respondent asking for an increase in wages and better working conditions. During the noon hour, he and two other employees, Leonard Cole and Frank Russo, induced all but one of the employees in ' thespinning department to sign the petition. Watson and Cole `then presented the petition to Kaye, superintendent of the Redfern plant, who admittedly told them that he would give them an answer within a day or two. The next evening Watson asked Kaye what lie' intended to do about the petition.` According to Watson, Kaye 'r`eplied, "Nothing" and added that if Watson had been circulating vthe petition on company time, he would be discharged, and that if the men were not satisfied with the way the mill was running, Kaye would shut it down. Kaye denied that he made this statement to Watson and testified that he 'merely told V Tatson that he did not want him to circulate the petition on company time. The Trial Examiner, upon the basis of the demeanor of the witnesses and other evidence in the record indicating unfair labor practices by the re- spondent, credited Watson's testimony and found that Kaye made the 'statement testified to by Watson, and so do we. We find, as did the Trial Examiner, that the respondent, by the conduct of Kaye above related, interfered with, restrained, and coerced its employees in,the exercise of the rights guaranteed in Section 7 of the Act. On the day following Kaye's, refusal to make any response to the petition for better wages and working conditions, Watson during the noon hour interviewed two labor union officials in front of the plant office with regard to organizing the Redfern plant. 'The plant watch- man, Adam Kaye, who was a brother of Superintendent Kaye, stood within hearing distance during this interview. Although Superin- tendent Kaye denied that his brother informed him of the interview, in view of the openness of the interview, the,time during which it took place, and its proximity to Superintendent Kaye's office, it is a reasonable inference and we find, as did the Trial Examiner, that Kaye, during the noon hour or shortly thereafter, learned of Wat- son's interview with the union organizers.19 practices They are relevant only with respect to the remedy «hich will best effectuate the policies of the Act. Matter of Chambers Corporation and Allied Stove Mounters and Stove Processors International Union, Local No 36 (A. F. of L.), 21 N L R. B. 808; Matter of Corinth Hosiery Mill, Inc. and American Federation of Hosiery Workers, 16N L. R B 414. 12 Kaye was not asked and did not testify as to whether he had knowledge of the interview. THE CLEVELAND WORSTED MILLS COMPANY, . 557, Shortly after, returningc to work that- afternoon Watson, was sdis= charged by Kaye, ostensibly for spitting, tobacco -juice ,into or, under a machine. Watson testified, and we find, that when Watson, reported to the office for his pay immediately, following his discharge, he had a • conversation with Kaye, during which ;he told Kaye, that ;he,,was going to take his case to the Board; that, Kaye, replied, ,"that, is what I want you to do"; that later during the' conversation iKaye, told him that he, Kaye, preferred that Watson quit and, later, suggested-;that if Watson "went back up and ;behaved, [himself, ,he] could go,to work"; that Watson, however, replied,'that,,he {had; the organization started and could not do tliat.20 We ,find, as ;did the ,Trial Examiner; that Kaye in suggesting to Watson, that, he ;"behave", himself was, re„ ferring to Watson's concerted and organizational activities, and that Watson so, understood. . ' -, ', c ^ , , ,,, ,,1; , (' The respondent's asserted, reason for the;' discharge-,of, •Watson,is not convincing. Watson ,admitted,,that,)he,spat tobacco, juice,on,the floor in violation of posted rules but; claimed, that 'he and, other,,em ployees, including,,foremen, had-customarily, done, so. Kaye admitted that other employees did so. ,It, does,not appear, however,1,that•any employee other than, Watson had.ever ;been ;discharged. ,or• even 'dis' ciplined for violating., this rule,.,-., fi,, • ' • .,j q p Frank Russo, who had assisted Watson, in circulating, the; petition for better wages .'and working conditions on November,18, was ,alto discharged ,during the afternoon of, November 20. ,,The, respondent contends : that "except for Frank Russo's -signature, appearing, oni the' petition-,together, with many, other. signatures, the respondentihad _no knowledge of any,concerted, activity by him.", It, is true, that.;there is no direct evidence that the. respondent knew, of, Russo's,assistance in,getting, the petition signed,; but we are,, convinced, (and; find', that since the,petition•was,signed by . the, employees,openlyJn,the, spinning department, during, the, noon hour the. respondent, did" knowf of Russo's participation an securing, signatures. At the time of,,his discharge Russohad,been employed;iby^the respondent for about, 8 years., Several, months, priori, theretoL,,he^ had been ;,transferred, from his, regular, jobf; as"s;tapeyfjl oy,,,tg', more responsible i work,; as gear changer,. or "straw boss."; ;After, • Watson's discharge,,on 'the afternoon of "November r 20; • Foreman, Hutchinson a0 Kaye denied , Watson's testimony , and Igave, a different version of ,the, conversation. r , , , ro>•' "1 He testified that 1whenit ,, Watson reported to the oftlce'he tgld^Kaye that^Jt^'wotild b difficult to get another, job after having been discharged and'7thatUKave 'thereupon informed him that he could quit if he preferred ; that Watson. then informed Kaye that he had joined the'Union and that'if Kaye did not take him back 'ther'e would lid t,'ou61e` That Kave refused to, take Watson, back and,.told him ,that,he,.Kaye, 'lznew_nothing about "the union business" and would not be frightened into taking Watson back. The Trial Examiner, wlio' observed' the demeanor 'of'the , witiiesseslbelieved1 Watson's1veision `of the conversation ,, and, we likewise credit ,it.-'^- 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instructed"Russo to do Watson's work, then to get a machine ready for operation. According to Russo, he-had prepared the machine and one of the girl employees was placing wool on the bobbin pre- paratory to putting the machine into operatin when, Hutchinson came over and asked -him why' the machine was not operating; Russo replied that the girl was putting the bobbin on, whereupon Hutchin- son discharged him, stating that he, Russo, was "always loafing." Hutchinson testified that he saw Russo leaning on the-machine, talk- ing to a girl who was cleaning it; that when he reprimanded Russo, they became engaged in an' argument during the course of which Russo cursed him ; that Hutchinson thereupon discharged Russo ; and that Russo-then threatened to strike Hutchinson, a much smaller man with only one arm. Russo denied that he had leaned upon the machine and talked to the girl who was working on it and also denied that he- had cursed Hutchinson. Although Hutchinson testified that he reported the entire incident to Superintendent Kaye, the latter, in testifying concerning the reason assigned by Hutchinson for dis- charging Russo, did not mention Russo's alleged profanity but men- tioned only that Hutchinson had reported that he discharged Russo "for being lazy." Moreover, Kaye testified that in discussing the discharge with Russo on the following day, Russo denied that he had been lazy; the use of profanity, testified to by Hutchinson, was apparently not mentioned. Under the circumstances, we agreed with the Trial Examiner that Hutchinson's version of the incident is not credible and we credit Russo's testimony, as did the Trial Examiner. The respondent's contention that Russo was discharged for being lazy is inconsistent with his 8 years' service and recent promotion to the position of gear changer, even if such promotion was meant to be only temporary, as the respondent asserts. Hutchinson testified that several times prior, to Russo's discharge, he had warned Russo against loafing but could cite only one instance when he had done so. On that occasion, according, to Hutchinson, Russo was given a 2-day disciplinary lay-off, at a time when it was necessary to lay off several employees anyhow because work was slack. As found above, on the day following the circulation of the petition for better wages and, Working conditions, Kaye expressed sharp dis- pleasure with,. that action, threatening to discharge Watson if he had circulated the petition on the respondent's time, and to shut down the mill if the employees were not satisfied with the ' way it was running. Moreover, Kaye at the hearing admitted that although he had promised on November 18 to give Watson and Cole an answer in regard to the petition within a day or two, he nevertheless put the petition in a pigeon hole and never did anything about it., The respondent's attitude in regard to this petition was in sharp contrast THE CLEVELAND WORSTED MILLS COMPANY 559 •, to 'its' attitude toward employee activity in behalf of the company- dominated - E.' R. E, As has been shown above, the respondent permitted E. R. P. representatives to meet on the 'respondent's time and property and paid them ' for their time consumed in E. R. P. activities. Upon all the evidence, we are convinced that the discharges of Watson and-Russo only 2 days after the circulation of the petition and within a few hours after Watson had openly interviewed union organizers in -front of the plant office, were not for the reasons as- signed by the respondent -but were for the purpose of disrupting and, discouraging concerted and organizational activities of the respondent's employees. We find that the respondent discharged Watson and Russo on November 20, 1936, because of their concerted and organizational, activities above described, thereby discouraging membership in labor organizations,21 and interfering with, restraining, and coercing its employees `in the exercise of the rights guaranteed in Section 7 of the Act. 2. Edna Vogelsong Edna Vogelsong was a bobbin' girl at the Redfern plant when she was discharged on November 30, 1936. She had been elected recording secretary of the Redfern -local on the day before her discharge.22 Vogelsong had been transferred to the position of a bobbin girl from that as weigh girl, at which' she had been in efficient. During the week previous to her discharge she had been a few minutes late on Monday and, despite warning, a half hour late on Wednesday. It had been necessary on Wednesday td call another girl to take; her place. Thursday was Thanksgiving Day, a legal holiday. On Friday Vogelsong's foreman, Leslie Williams, can- vassed the department, asking employees if they would work -on Saturday to make up for Thursday. No one was compelled to work on Saturday, but Vogelsong indicated that she would do so. Never- theless, she failed to report on Saturday or to send word that she• would not report. Williams thereupon discussed Vogelsong's at- tendance and work record with Overseer Gordon Shooter, who instructed Williams to discharge her. According to both Williams and Shooter, whose testimony we have no reason to disbelieve, the decision to discharge Vogelsong was made prior to her election to the union office. She was notified of her discharge on Monday, as u See Matter , of Stehli tt Co , Inc. and Textile Workers Union of Lancaster, Pennsyl- vansa, and Vsc noty, Local No. 133, 11 N L. R. B 1397; Matter of The Dow Chemical Company and United Mine Workers of America, Distract No 50, 13 N. L R. B 993. 12 Watson was chosen chairman and Russo treasurer. ' 560 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD soon as.' she came to work. We find, as did the Trial Examiner, that Vogelsong was discharged for reasons,^other than union activities .211 C. The discharges at the Cleveland plant Casimer Trzaska commenced working gat the Cleveland plant, in 1935., On April 17,,1937, he was an oiler in the combing depart- ment. He had joined the T. W. O.- C. in March 1937, and early in April had been elected chairman of the organizing, committee for the T. W. O.,C. As such, he was in charge of the organizing activity of a committee of about 8 other employees and after working hours shared an office with an organizer for the T. W. O. C. By April 17, 1937, as a result of the efforts of the committee under Trzaska, about 200 'of the,-employees at the Cleveland plant had signed up with the T. W. O. C. Trzaska's position with the T. W. O. C. was common- knowledge, and accordingly it is a fair inference, and we find, as did the Trial Examiner, that the respondent had knowledge of such,activity before refusing to reinstate him after a 2-week lay-off, as shown below. When Trzaska reported to work on April 17, 1937, he was told to report to George Frank, the superintendent of his department. When Trzaska saw Frank the. latter told him, "I will have to let you go for a couple of weeks or 3." When Trzaska asked why, Frank replied, "Well, you have been quitting too early; standing around the door at a quarter of 3." Trzaska protested that there had been other employees in addition to himself standing around the door, to which Frank responded, "Anyway, I will have to let you go for a couple of weeks." Trzaska thereupon-left,, and in about 3 weeks returned and applied to Frank for his job., Frank, however, stated that he could not do Trzaska "any good." The respondent permitted its oiler boys on the first shift, which ended at 3 p. in., to wash up at 2: 30, but required them after washing to return to work at their machines. Kelly, a mechanic in Trzaska's department at the time of his discharge but an overseer in the gilling department at ,the time of the hearing, testified that it was Trzaska's practice after washing, to put on his hat and coat and stand in the doorway ready to leave as soon as the, 3 o'clock bell rang.. Kelly testified further that he had no knowledge as to whether this was a 23 In January 1937 a union committee called on Poss in Cleveland in regard to the discharges of Watson , Russo, and Vogelsong. Poss agreed that Watson's discharge had been too severe and consented to give him employment at the Annevar plant but refused to reemploy Russo and Vogelsong Watson was thereafter hired at the Annevar plant in February 1937. The problems arising from the refusal to reinstate him after 'the three-plant strike will be dealt with below in connection with a consideration of the cases of other employees who were not reinstated at that time THE CLEVELAND WORSTED MILLS COMPANY 561 common practice among oiler boys. Sam Smith, night foreman at the time of Trzaska's discharge, testified that on three separate occa- sions on coming to work at about 10 minutes to 3 o'clock p. m. he found Trzaska with his hat and coat on ready to go home;'that on the third occasion he warned Trzaska that he would be discharged if this practice did not stop, and that he reported these occurrences to \Trzaska's foreman, Godley. Godley testified that he had noticed Trzaska and other employees standing around the door before quit- ting time; that he had been censured by Superintendent Frank for permitting this practice; that he had spoken to Trzaska and other employees about it, asking them to desist; and that thereafter the violations were less noticeable for a few days. Trzaska admitted that on the day before he was laid off he and five-other oiler boys had been noticed by Frank standing in the door- way before quitting time. At the beginning of the hearing Frank was called for cross-examination by Board counsel. He was not called by the respondent nor did he testify concerning Trzaska's lay-off. . From the above testimony and all the surrounding facts and cir- cumstances we°find, as did the Trial Examiner, that in the spring of 1937 it was the practice of some of the employees on the first shift of the gill section of • the combing department to stand at the door ready to depart before the quitting bell rang, and that this practice was against the respondent's known rules; that among the more flagrant of these offenders was Trzaska; that he had been. warned several times by his superiors, about this violation of the rule prior to April 17, 1937, and ordered to desist from it; that on April 16 he was at the door with other employees before the quitting bell rang and was seen by George Frank, the department head; and that the next day Frank laid him off for 2 weeks as a disciplinary measure to stop the violation of this rule. When at the end of the disciplinary period Trzaska was told by Frank that the latter could not use him, no reason was given for,such action. The reasonable inference herein found to be the fact is that by that time Frank had become cognizant of Trzaska's union activities and refused to reinstate him for that reason. Trzaska's activities in behalf of the T. ' MT. 0. C. began shortly before his lay-off and continued after April 17. We find that the respondent, by refusing to reinstate Trzaska on or about May 1, 1937, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the T. W. 0. C., and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Henry Badaczewski was an oiler in the combing department at the time of his discharge on or about April 30, 1937. He joined the 481039-42-vol 43-36 2 I 562 _DECISIONS Or NATIONAL LABOR RELATIONS BOARD '1': W. O. C: on or about March 1, 1937, and became • an active member of the organizing committee headed by Trzaska. Part of Badaczewski's duties involved the removal of worn brushes from a bench. These worn brushes were normally placed on the bench by the mechanic under which each oiler worked. Badaczew- ski's mechanic was Lennox Smith. However, Badaczewski occa- sionally also took orders from James Spencer, who, in addition to, acting as mechanic, served as an assistant, to Godley, foreman in the department. On April 30, 1937, Badaczewski, finding a number of worn brushes on his bench which he believed had been put there by Spencer, felt aggrieved because he thought that Spencer .should have given these brushes to his ' own oiler boy. Badaczewski there- upon, according to his own testimony, went to Spencer and "told him where to get off, using obscene language. Spencer replied, "I will take care of you," and shortly thereafter Badaczewski was told by his foreman, Godley, that he was being discharged because of that incident. Badaczewski testified that he had been taunted by Spencer in the past and criticized by him because of his union activities. Never- theless, under the circumstances, we are convinced, and find, as did the Trial Examiner, that Badaczewski was discharged because of the use of obscene language to his supervisor and the refusal to perform his duties, and not because of his union activities. - D. Other interference, restraint, and coercion at Cleveland before the strike The commencement of organizational activities by the T. W. O. C. at the Cleveland plant was -met by the respondent, through its presi- dent,- Poss, and supervisory employees, ' with immediate manifesta- tions of hostility in addition to the discharge of Trzaska above mentioned. Upon one occasion, when the T. W. O. C. was passing out handbill's outside the plant, Poss, at a meeting of the committee- men of the E. R. P., stated that "them radicals were outside passing handbills" and that union officials "were getting high salaries; they did not have to worry about their jobs." 24 During this period Foster, night foreman in the yarn department, admittedly asked an employee, Percy Waite, whether he belonged to the C. I. 0., and, after receiving a reply in the negative, said, "I am glad." Badaczew- ski testified that Spencer, assistant to the foreman in the comb- ing department , upon whose recommendation Badaczewski was discharged, used to "kid" him about his union activities, constantly inquiring how many members Badaczewski had signed up. Although 24 These facts were testified to by an employee, 'Clifford Uridel. ' Poss, when asked whether he had made the statements attributed to him by Uridel, replied "I don't know the chap," thus neither denying nor, affirming the statements THE CLEVELAND WORSTED MILLS COMPANY 563 Spencer denied'•`Badaczewski's accusations, we 'credit,- as did the Trial Examiner, Badaczewski's testimony in this regard, which is consistent with other credible evidence of unfair labor practices engaged in by, the respondent through 'its supervisory officials. George Pryor, general superintendent of the plant, sharply. repri- manded Rose Miller, an employee representative under the E. R. P., allegedly for soliciting for the T. W. O. C. on company time. How- ever, he admitted that E. R. P. elections and meetings were held on company time and, property. Rose Miller testified that Pryor also told her that'he had evidence that she had "not been loyal to the company," and that accordingly she and Pryor could "no longer be friends." • Pryor denied making these statements, but we credit Miller's testimony, as-did the Trial Examiner. . During April there began to be defections from the E. R. P. to the T. W. O. C., on the part of leading employee representatives in the E. R..P., including Tom O'Brien, chairman of the Employees' Council. This circumstance, together with the fact that decisions of the United States Supreme Court sustaining the constitutionality of the Act were rendered'25 threatened the continuance of the E. R. P. and caused the respondent to take steps to insure the continued operation of the E. R. P. O'Brien testified that at a meeting of the E. R. P., after several unsuccessful attempts ,had been made, to obtain higher wages and better working ,conditions, he announced that' there would be no more meetings ; that thereafter, when Poss asked him whether he was holding meetings, he (O'Brien) raised the question of the legality of meeting on company time and property 'in view 'of the'court decisions sustaining the constitutionality of the Act; that Poss replied that he would see his attorney; and that about a week later Poss, stated to him, O'Brien, "The Employees Representation Plan will stand fire and water. You just go on and have your meetings, I am back of you At about this time the respondent posted a notice to its employees asserting that the Supreme Court decisions did not render the E. R. P. illegal. That notice (including capitalization and underscoring) read as follows : Since the action of the Supreme Court on Monday upholding the validity of the National Labor Relations Act (commonly known as the Wagner Act), reports have come to us from some of our employees that they are being told they must join a labor organiza- tion and that their independent association known as Employees Representation Plan is illegal. Any such statements are entirely false. The Supreme Court did not declare that independent employee associations are illegal. 7-National Labo? Relations Board v. Jones & Laughlin Steel Corp ., 301 U. S 1, and companion cases 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tre It merely,upheld the validity of the Wagner Act, the terms of which we have always complied-with. The act itself does NOT make it illegal for employees to form an independent organization of their own, as the wording of the law clearly shows. We particularly call to your attention the following provision of the law as to employees' rights : "Sec. 7-Employees shall have, the right to self-organization, 'to form, join, or assist labor organizations, to bargain collectively through representatives of their', own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection." The right of any group of employees to form a labor organiza- tion of their own was clearly expressed in the Report of the House Committee on Labor at the time of, the enactment of the law. That,report stated : I • "Nothing in the bill prohibits the formation of a company union, if by that term is meant an organization of workers con- fined by their own volition to the boundaries of a particular plant or employer." And President Roosevelt himself, when he created the Auto- mobile Labor Relations Board,-went on record as saying : "The Government makes it clear that it favors no particular union or particular form of employee organization or repro- . • sentation." - The management wishes to make it clear that there is nothing in the law, nor in the policy of this company, that makes it necessary for any employee to join any organization in order to work in this plant. O'Brien testified further that at a meeting with Poss and Rhodes, secretary of the respondent, subsequent to the posting of the above notice, the three of them discussed the advisability of renting a hall for E. R. P. meetings and that Poss said, "You rent a hall outside, and get anything you want. My pocketbook is wide open to you as long as you will take care of it, as long as you keep this thing from going the wrong way." Poss denied in substance O'Brien's testimony as set out above, stating that he never discussed at all the legality of the E. R. P. Rhodes, secretary of the respondent, admitted dis- cussing the problem of a meeting place for -the E. R. P. with Poss and O'Brien, and did not refute O'Brien's testimony as to the state- ments made by, Poss at this discussion. As stated above, the Trial Examiner commented on Poss' lack of frankness and sincerity. For this reason and, in view of the contradictions between the, testimony of Poss and Rhodes, and the posting by the respondent, of the notice defending the legality of the E. R. P., we credit, as did the Trial Examiner, the testimony of O'Brien set forth above. THE CLEVELAND WORSTED MILLS COMPANY 565 Despite Poss' efforts to keep the E. R. P. alive, it ceased to function in about April 1937. Although no formal action disbanding the E. R. P. was ever taken, it held no meetings after the end of April. Under all the circumstances, we find that, taken in its entirety, the conduct of the respondent described above, including Poss' re- marks to the E. R. P. committeemen, Foster's inquiry and remark to Waite, Spencer's bantering and inquiries of Badaczewski, Pryor's remarks to Miller, and Poss' attempt to keep the E. R. P. alive, was coercive, and that the respondent by such conduct interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. E. The strikes 1. The Ferrell 'case and the Redfern strike Raymond Ferrell was aweigh boy at the Fedfern plant in May 1937. Early in 1937 he was chosen chairman of the grievance com- mittee of the Redfern Local of the T. W. O. C. and thereafter met with the management in that capacity. About 3 or 4 days prior to May 18, 1937, Ferrell was' instructed by his foreman, Don Watson, to "line up plates" on machines not then being used. This task was to be done by Ferrell in his spare time from his regular duties. Within the next 3 or 4 days his foreman,- not satisfied with his progress on this task, urged Ferrell to "snap out of it." On May 18 Watson again spoke to him about this task and Ferrell replied that he had not had time to finish it, adding "I will get it done when I get God damn good and ready." Watson there- upon discharged him. Ferrell appealed to Gordon Shooter, Watson's superior, and Kaye, manager of the plant, but both upheld Watson's action. Upon Ferrell's subsequent return to work under circum- stances set forth below, he admitted to Leslie Williams, a foreman- at the Redfern plant, that he had deliberately failed to complete the job of "lining up plates." We find as did the'Trial Examiner, that Ferrell was not discharged because of his union activities. On the evening of Ferrell's discharge the Redfern local met and voted to strike unless Ferrell was reinstated. Kaye refused to re- instate him and a strike was called. Joseph R. White, Field Director of the T. W. O. C., then called on Poss in Cleveland and they agreed that the strike at the Redfern plant would be called off and that Ferrell would be reinstated. At the conclusion of this conference, White told Poss that, he would like to meet with him and talk over the situation at the Cleveland plant, whereupon Poss responded that if there were "any strings" on'the Redfern settlement, he would with- draw assent thereto. 'White assured Poss that there were no "strings" to the settlement and that he would immediately call a meeting of the h I 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union and advise the employees to return to work provided that Ferrell was reinstated. In accordance with this agreement, the em- ployees at Redfern returned to work after a 3-day strike and Ferrell was reinstated. 2. The three-plant strike a. Its causes On the day when the Redfern employees returned to work, White telephoned to Poss and requested a conference to discuss "the Cleve- land- situation." Poss asked White to write a letter, setting forth what he had in mind. There ensued an exchange of correspondence between White and" Poss in which White in effect requested a con- ference with Poss for the purpose of negotiating an agreement with the respondent covering its three plants and in which Poss, evading the issue, kept insisting that he be informed of the complaints which White wished to discuss and assuring White that he would then in- vestigate the complaints, reach a decision thereon, and give White a reply. Poss' letters were obviously purposely evasive. However, the Union did not claim to and apparently did not represent a majority of the respondent's employees either at the Cleveland plant or at the combined three plants and the respondent was not therefore legally obliged to bargain with the Union. White, during the period of this correspondence, kept the union members informed of his lack of progress in negotiations and prior to June 20 there were rumors at the three plants that a strike might be called. On June 20 at a meeting of the members of the Union at the Cleveland plant attended by representatives of the Redfern and Annevar plants,26 White read the exchange of correspondence between Poss and himself and recommended the calling of a strike, telling the employees among other things, that "because of Mr. Poss' letters [he] was convinced a strike was the only way to sit down and talk.,to [Poss]." The members accordingly voted to and did strike on the following morning, June 21. , White testified that at the meeting" of June 20 he recommended a strike because of "mainly, the discharge of our people, the adjust- ment he made with the loom fixers and the changing of workers from one job and one shift to another." The record, however, does not support White's testimony that the respondent bargained with the loom fixers in order to win them away from the T. W. O. C., nor is there any evidence to show a shift of workers from one job or shift to another in order to discourage activity on behalf of the T. W. O. C. Furthermore; White never in any,of-the correspondence between himself and Poss indicated that the T. W. O. C. was "These representatives had been instructed by their respective locals to cooperate with the Cleveland local and vote for a strike if the Cleveland local so voted. I THE CLEVELAND WORSTED MILLS COMPANY 567 aggrieved because of the respondent's unfair labor practices. In all of. White's letters, the matters mentioned as subjects for discus- sion were wages, hours, 'and working conditions, and a collective agreement with the T. W. O. C. Although, as we have found above, the respondent did engage in unfair labor practices by discharging two employees at the Redfern plant in November 1936 and one at the Cleveland plant in April 1937, by dominating, interfering with, sup- porting, and encouraging labor organizations known as the E. R. P., and by disparaging the T. W. O. C. and discouraging activities of the employees in its behalf, none of these unfair labor practices was mentioned in the correspondence between White and Poss which precipitated the strike. None of them occurred during the period of this correspondence and none of them was stressed in the meet- ing at which the strike vote was taken. Under all the circumstances, we. find, as did the Trial Examiner, that the strike was not caused by the respondent's unfair labor practices .21 b. Unfair labor practices during the strike Several days after the commencement of the strike the respondent sent to each of the Cleveland employees a letter, enclosing his pay check, referring to the pickets as "strangers ," and falsely stating that only 11 of them were employees of the respondents ; it reminded the employees of the failure of another strike which occurred in 1934 and requested them, , if they desired to return to work, so to indicate on an enclosed blank. Thereafter the respondent, through its supervisors and other employees, solicited strikers to return to 'work- and in some instances threatened them with loss of their jobs if they did not return. Although the agents alleged to have made these threats denied doing so, we find their testimony unconvincing as did the Trial Examiner. The respondent also, through its officials and supervisors, on a number of occasions made insulting or disparaging remarks to pick- ets. Victoria Santin testified that on the first day of the strike while she and other strikers . were passing out T. W. ,O: C. applica- tion cards, Pryor, general ' superintendent, told the assembled girls to pay no - attention to the group passing out application cards. Although Pryor denied that he made such a statement , we credit Santin's testimony, as did the Trial Examiner. On one occasion, according to Duber, an organizer for the T. W. O. C ., Poss, upon seeing him, Duber, on the picket line said to him, "You dirty bum; you are the cause of all this trouble." 28 On another occasion Poss 27 Cf. Matter of Republic Creosoting Company, et al. and Creosote Workers Union, Local 1V0 20483, 19 N L. R B 267; Matter of The Ohio Calcium Company and) United Bieck & Clay Workers of America, Local 669, A F. of L, 34 N. L R B 917 18When asked whether he made this statement to Duber, Poss testified, "Well, he said, 'Good morning, scab,' and I guess I had to answer him " Poss denied,' however, 568 DECISIO'NS_OF NATIONAL LABOR RELATIONS BOARD accosted Badaczewski on the picket line, called him a rat, and swore at him. Jim Graham, a foreman, during the strike told an employee, Esther Barnett, who was wearing a C. I. 0. button, "I would not be caught wearing one of the damn things." Joe Bauza, another foreman, spoke to Bertha Janiewzewski on the picket line, asking her to return to work. Janiewzewski testified that when she refused, Bauza called her a "bitch." Bauza denied making this statement; however, we credit Janiewzewski's testimony, as did the, Trial Examiner. We find 'that the respondent by the acts and statements above set forth interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Pursuant to a petition filed by the Union about 2 weeks after the commencement of the strike, and upon the consent of the respond- ent, separate elections were conducted at the Cleveland and Red- fern plants on August 20, 1937, under the auspices of the Board's Regional Director.19 The Union won the election at Redfern but lost at Cleveland. The strike.was then called off at the Cleveland plant at a meeting held about August 23,30 and was called off at the Anne- yar plant about a day later. The strike continued, however, at the Redfern plant until about September 22, 1937, at which time the respondent entered into a written contract with the Union on behalf of the Redfern employees. ' Although, as we have found above, the respondent engaged in unfair labor practices during the strike, we do not agree with the Trial Examiner that such unfair labor practices prolonged the strike. Upon the entire record, including the fact that the_ strike'was called off almost immediately when, the Union lost the election at Cleve- land and when a written contract was negotiated at Redfern, we find that the strike was not prolonged by such unfair labor practices. F. The effect of the settlement agreement of May '1938 upon the alleged discriminatory refusal to reinstate strikers The complaint, alleges that after the termination of the three- plant strike the respondent refused to reinstate a large number of the strikers at each of its three plants, thereby discriminating in regard to the hire and tenure of employment of -these employees. The respondent advances as a defense to this allegation the fact that on May 7, 1938, a settlement agreement was entered into by that he told Duber that he was the cause of all the trouble We credit the testimony of Duber in this respect, as did the Trial Examiner " It was conceded by the respondent that the Union represented a majority of the employees at the Annevar plant. 10 The Cleveland plant had reopened on July 12 and by August 23 was operating with almost as many employees as it could then use. THE CLEVELAND WORSTED MILLS COMPANY 569 the T. W. 0. C., the respondent, and counsel for the Board. This agreement provided for the settlement of all allegations in an amended complaint against the respondent issued by the Board on May 7, 1938, and further provided for the withdrawal by the T. W. 0. C. of the charges upon which the Board's complaint- had been issued. By its terms the respondent was to pay certain stated sums of money to named employees and post a fund of $500 to meet all other outstanding claims. The agreement further provided : - With reference to reinstatement of complainants [persons named in the Board's complaint of May 7, 1938] included above, it is hereby stipulated that only for the purpose of establishing a basis to apply to reinstatement the. same shall be dependent upon departmental seniority and on the basis of the particular job held at the particular plant at the date of last employment with the Respondent. Wherever one employee now employed by the respondent 'in a particular job or operation, or an applicant therefor or a former employee therein, is junior in seniority in accordance with the above rule, to another employee represented by said Committee [the T. W. 0. C.] and who formerly had performed the same job or operation, the employee, applicant, or former employee of longer seniority shall be immediately employed at'his old position. Where work is not now available on the above basis, such reinstatement shall be made by reem- ployment in accordance with the above seniority rule as work becomes,' respectively available for such employees, applicants, or former employees, at all plants, and without discrimination as to union or non-union membership. This provision with ref- erence to reinstatement is intended to be applicable to all employees, including those represented by said Committee, irre-, spective of whether they have heretofore filed charges and whether or not they are entitled to immediate reemployment. Nothing herein contained is intended to limit Respondent's full right to retain, discharge or lay off any employee after being returned to work provided membership or non-membership in the union is not the cause thereof, nor shall any employee after or because he has been so returned to work in the Cleveland Mill have any superior right to any other employee of said mill. The agreement further provided that the respondent should post a notice that it would comply with the provisions of Section 7 of the Act. The Board approved this agreement on May 10, 1938. It is not disputed that the respondent posted the notice and paid the sums of money called for by the agreement. However, the record leaves no doubt that the respondent failed to comply with that por- tion of the agreement providing for the reinstatement of its em- 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees. As shown above, the agreement provided that the basis for reinstatement should "be dependent upon departmental seniority" and that the person with greatest seniority should be chosen, for, any available opening displacing any person with less seniority occupy- ing the former position of the person with greater seniority. Poss, president of the respondent, and Masgay , the respondent's employ- ment manager, who were responsible for complying with the terms of the settlement agreement , both admitted that they made no attempt subsequent to the agreement to reinstate , the strikers on a seniority basis. Indeed, the respondent in its brief does not argue that it com- plied with the settlement. It argues , however, that the clause in the settlement agreement providing that "with respect to the reinstate- ment of any such employee said withdrawal [of charges] shall not in any manner prejudice his right hereafter accruing hereunder to reinstate his charge for failure of the respondent to reinstate him as hereinbefore provided" restricts ' each employee to his rights under the agreement. This contention is clearly without merit . The Board has heretofore held that , although pit is not bound by settlement agreements, where such agreements have been entered into with the approval of the Board or its agent, the Board will normally, in order to effectuate the policies of the Act, give, effect to such , agreements' and refrain from consideration of the unfair labor practices which the agreements purport to settle.31 The Board , however has also held that it will not effectuate the policies of the Act to refrain from con- sidering the unfair labor practices unless the agreement has, in fact, been complied with by the employer.32 Where, as in this case, the respondent has deliberately violated the terms of the settlement agreement , it will not effectuate the policies of the Act for the-Board to give effect to any portion of that agreement. ' We find that the policies of the Act will best be effectuated by a decision on the merits of the issues raised in the complaint. G. Diseriminato7'y refusals to reinstate strikers 1. Evidence indicating''a discriminatory rehiring policy at Cleve- land; the respondent's defenses The complaint as finally amended alleged that the respondent dis- criminatorily denied to or delayed reinstatement of 112 of the strikers 31 Matter of Simplicity Pattern Company, Inc. and L W. Butler, et al, 16 N. L. R. B. 291,; Matter of Shenandoah -Dives Mining Company v, International Union Mine, Mill and Smelter Workers, 11 N. L. R B 885. 32 Matter of Chicago Casket Company v Casket Makers Union No. 19306, 21 N. L. R B. 235; Matter of Phillips Petroleum Company v. Oil Workers International Union, Local No 212, 23 N. L R B 741; Matter of Chambers Corporation and Allied Stone Mounters and Stone Processors International Union, Local No. 36 (A. F of L ), 21 N. L. R. B 808. The Board 's position in this ' respect has been uniformly sustained by the courts N. L R. B. V. Kohen-Ligon-Polz, Inc, 128 F. (2d) 502 (C. C. A 5) ; N. L. R. B. v Hawk & Buck, 120 F. ( 2d) 902 (C. C. A. 5 ) ; Canyon Corp . v. N. L. R. B., 128 F. (2d) •953 ( C. C. A. 8). THE CLEVELAND WORSTED MILLS COMPANY 571 at the Cleveland plant. During the hearing, the complaint was dis- missed without objection as to 29 of them, leaving 83 to be consid- ered herein. Upon the termination of the strike on August ^23, 1937, a committee of the T. W. O. C. called upon Poss, advised him that the strike had been terminated, and requested that the strikers be re- instated. Poss advised the committee that the strikers should make individual applications for reinstatement at the employment office. Each striker hereinafter considered thereafter did make application for reinstatement. Prior -to the strike in June 1937, the respondent employed at Cleve- land an all-time peak of 2,124 employees. On August 21, 1937, just before the strike was called off, only 1,425 were working. By the end of the following week 1,559 employees were working and employment thereafter fluctuated with as few as 828 working during the week ending September 24, 1938, and as many as 1,872 working during the week ending November 11, 1939. It is clear, therefore, that the re- spondent could not have reinstated all the strikers even had it desired to do so.33 However, the respondent subsequent to the strike and sub- sequent to the application of strikers for reinstatement, had a sub- stantial turnover in employment and hired a number of new em- ployees and many, former employees who had not been working for at least several months before the strike to perform work which had theretofore been done by the strikers. On August 23, the date upon which the strike was called off, the names of the strikers who had not prior to that- date returned to work, were removed from the pay roll. Both Masgay, the employ- ment manager, and Helen Borski, the respondent.'s efficiency expert, testified that it was customary for the respondent to remove from its pay roll and place on an inactive list the names of all employees who had not worked for as long as 3 months. Kowallek, the paymaster, testified that it was customary to remove from the pay roll the names of persons who had not worked for 4' or 5 weeks. In any event it seems unlikely that the respondent would have chosen the very day when the strike was called off as the propitious time for removing the names of strikers from its pay roll were it not intent on dis- criminating against them for their refusal to work during the strike. That such was the respondent's intention is indicated by numerous statements made by representatives of the respondent to the striking employees during and after the strike. "Since the strike had neither been caused nor prolonged by the respondent 's unfair labor practices , the respondent was, of course , not obliged to displace with strikers those employees who had been hired during the strike The strikers ceased work in connection with a current labor dispute, however, and therefore remained employees within the meaning of Section 2 (3) of the Act. N L R B v. Mackay Radio and Telegraph Co, 304 U- S. 333 . But, whether or not they remained employees , they are protected under the Act from the respondent's discrimination against them for having participated in the strike N L R B v. Phelps Dodge Corp, 313 U. S. 177. 572 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD Ann Hlavsa testified that when she applied for a job, Masgay told her that she "couldn't have a job because [she was] on the blacklist." Mary Shefski testified that she applied for reinstatement on numer- ous occasions and that on one of, these occasions, Masgay told her in the presence of several other applicants "... you are for the Union. Well, let the Union- get you a job." Frances Wesoloski applied for a job on several occasions. In regard to one of those occasions, she testified, "She [Masgay] was sore at me, and she said because I was on the picket line she would not give me, my job." John Karpovich testified that he applied for reinstatement on several occasions and.that on one of these occasions Masgay told him that he could not get a job with the respondent, that he asked why, and Masgay replied, "Because I see you a lot of times on the picket line marching on the street. You cannot get no more job here. Don't come here. Don't bother here. You have got to look' for another job." Stella Romanek testified that when she applied for her job - shortly, after the termination of the strike, Masgay "told me I was a striker, I was in the picket line, so there is no work for me." Margaret Szalek testified that she applied for reinstatement shortly after the termination of, the strike and that Masgay "says she hasn't no job for me, because I was not go to work when they called me." Caroline Bednarz testified that upon applying for her job, Masgay told her, "no got a job, because I quit that time." Angela Wershylo testified that shortly after the termination of the strike she applied- for reinstatement to Masgay but without success; that she later applied to Poss, in Masgay's presence; that Poss asked Masgay what Wershylo's record was and Masgay replied "pretty good"; that Poss thereupon instructed Masgay to send for llrershylo when she was needed; that Masgay then told Poss that lershylo "was on duty on the picket line. She was from early in the morning until late at night every day"; and that Poss then turned,to Wershylo and said,""My dear lady, if you are stinking for the people outside, the mill instead of the people inside the mill, then, for me, I will tell you the truth; you better go to the Union, and let the Union give you a job." Thomas Wesoloski testified that after the termination of the strike, he applied to his foreman, Edward Miller; for reinstatement and "Mil- ler told me if I had not been on the picket line I would have been work- ing, and he 'told me that I had been blacklisted and I would never get my job back in that department." Masgay, Poss, and Miller denied all the statements attributed to them. In view of the unreliable character of Poss' testimony, men- tioned above, and the unfair labor practices in which, we have found that the respondent engaged before and during the strike, especially THE CLEVELAND WORSTED MILLS COMPANY 573 its threats to employees that they would lose their jobs it they did not return to work during the strike, we do not credit these denials. We find, as did the Trial Examiner, that Masgay, Poss and Miller made the statements attributed to them by the witnesses whose testi- mony is discussed above. In addition to the statements set forth above, the respondent, through Masgay, reproved a number --of, the employees who applied for reinstatement for not having returned to work when they were sent for during the strike.34 The foregoing evidence establishes the existence of a discriminatory purpose on the^,part of the respondent to deny, reinstatement to strikers as a class. • That purpose appears to have been effectuated, for the record affords a substantial number- of instances in which applications of strikers 'for reinstatement were passed over and the jobs which they had performed prior to the strike were given to new employees or,to persons who had once been in the respondent's employ but who were riot on its pay roll when the strike began. At this point we turn to.the consideration of a number of general defenses asserted by the respondent. ' a. Alleged selections on efficiency basis, The respondent contends that subsequent to the strike it reinstated strikers and hired former employees on the basis of their relative efficiency. It introduced evidence to show that some of its employees were rated A, B, and C in descending order of efficiency. However, it did not show when these ratings were made and, for the most,. they were apparently not made until after the 1938 settlement agree- ment when Employment Director Masgay, who was in sole charge of reinstating the strikers and hiring former, employees, interviewed some of the overseers and foremen in regard to the relative efficiency of the employees working and those who had not been reinstated. In view of this fact and because the respondent's demonstrated hostility toward the strikers may, to some extent, have influenced. the ratings which' it gave the strikers, we do not accord the ratings much weight. .Nevertheless, solely for the purpose of determining whether the respondent's contention is otherwise supported by the record, we shall assume that the ratings were made in good faith. Almost half the strikers and former employees were not rated and for this reason it is impossible to determine accurately the; weight, if any, given by the respondent to efficiency ratings in selecting '" The respondent during the strike had sent letters to all its employees requesting them to return to work, and it apparently regarded all those who did not return during the strike as strikers . ewe, too, shall herein refer to all such persons as strikers ,,without regard to whether their absence from work during the strike was occasioned by their _participation in the strike or by some other reason. - 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees for reinstatement or reemployment. Although both Mas- gay and Poss testified that after the May 1938 settlement agreement the strikers were' reinstated on the basis of their efficiency, this testi- mony is refuted by other evidence introduced by the respondent. A comparison of the 40 strikers whose jobs we find, infra, were filled by new or former employees subsequent to their applications for reinstatement shows that as frequently as not strikers with relatively" low efficiency ratings were offered reinstatement prior to strikers with higher ratings.35 Moreover, a former employee rated C, was employed in preference to a striker, rated B and another unrated.31 Although the record does not affirmatively show that other former employees with relatively low ratings were- hired in preference, to strikers -with higher ratings, it does show that unrated former em- ployees were hired in preference to 2 strikers with A ratings 37 and in preference to 14 strikers with B ratings.SB Only in the cases of 4 strikers 39 does it affirmatively appear that their jobs were filled solely by former employees with higher ratings. We note also that former employees with B ratings were hired in preference to 6 strikers with B ratings.40 Under all the circumstances therefore, we are of the opinion, and find, that the respondent's contention that it reinstated the strikers and hired former employees on the basis of their relative efficiency is not supported by the record. b. Alleged policy of employing learners After the strikers had applied for reinstatement, the respondent hired many persons whom it called "learners" to do work which the strikers had formerly done. The respondent contends that it has always followed, a policy of employing "learners" even when some of its skilled employees are laid off, for the asserted reason that one large 15 On the only operations where by , reason of differences in the ratings of, these strikers a comparison is possible , the strikers were offered reinstatement in the following order Combing Department, gill box operators . ( 1) Szalek, rated C; (2) Kalinowski , rated B (3) Urban, rated B ; ( 4) Zablotna , rated C. . Drawing Department, gill box operators: (1) Pritchard , rated A; ( 2) Wesolowski , rated B. Twisting Department, cap twisters (1) Godliewski, rated B , and Kubera , rated C, offered reinstatement on same day , (2) Wojcik, ,rated C ; ( 3) Sanik, rated B as Wesolowski and Marunski , respectively 37 A former employee, Mary James , nnrated, was employed in preference to the striker Florence Pritchard, rated A ; and a former employee , Catherine Papez, unrated, was employed in preference to the striker Rose Miller, rated A. Since Papez worked for only about 6 weeks and a striker, Yogler, rated B, was thereafter hired in preference to Miller, «e have not considered Miller as one of the 40 strikers whose lob , was_,taken' by a former or new employee axKalinowski, Urban, Wesolowski , Godliewski, Sanik , Vogler, Papay , Burke; Sharwark, Katherine Wojcik , Barnett, Kosmider , Bogucki, and Osiecki - 39 Stella Conde ( admittedly a "good employee" after being reinstated ), Szalek, Zablotna, and Small " Kalinowski , Urban, Skoda, Tom Wesolowski , Godliewski, and Sanik. THE CLEVELAND WORSTED MILLS COMPANY 575 order may increase the volume of its business to such an extent that an, entire new shift of employees may be needed for a short period of time and the respondent must have a surplus of trained workers in the community. A "learner" is a new' employee who, by reason of his inexperience, is unable to perform his tasks with normal efficiency. He is in all cases paid a flat rate until he reaches normal efficiency, at which time he is paid on a piece-rate basis or at a higher hourly rate than that at which he had worked as a learner. The respondent never had any set quota for learners or any definite policy for hiring them. In view of the fact that at the time the strike was called the respondent had in its employ an all-time peak number of employees and the number of employees working subsequent to the strike was drastically reduced, a large surplus of employees was already available and it was obviously not -necessary for the respondent to employ new applicants as learners. c. Employment of former employees Some of the jobs which would otherwise have been available for strikers upon the termination of the strike were, after application for reinstatement by claimants herein, given to former employees who, for reasons not appearing in the record, had been removed from the respondent's pay' `roll prior to the strike. The, respondent contends in its brief "that employees rehired in most instances were persons of unusual skill or ability and in many instances with long histories of previous employment with the respondent." As to their ability, it is true that a somewhat larger percentage of former employees hired after the strike than strikers received high ratings. However, as stated above, we do not accord the efficiency ratings much weight, nor did the respondent do so in selecting employees subsequent to the strike. As to, the claimed long histories of previous employment of the former employees, it is noted that the respondent' contends that it has never considered-seniority in^reinstating•its employees. In any event,,many of the strikers likewise had long histories of previous employment with the respondent. Thus it nowise appears that former employees as a class were objectively preferable to strikers, but, on the contrary, absent a purpose to discriminate against strikers, the latter class had the advantage of more recent experience and familiarity with the respond- ent's operations. d. Shifts The respondent argued in its brief that there were no available jobs after' the strike for 15 , named strikers, who are, claimants herein'41 "Louise Batic , Mary Blazekovich , Joseph Cadek , John Deveraux , Anna Hlavsa, John Karpovich, P. H. Flaherty, Helen Krych, Eva Papay, Florence Pietrzak, Florence Pritchard, Theresa Sharwark, Helen Skoda, Pauline Sushinsky , and Katherine Wojcik. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because no new or former employee was hired for any of the particular shifts on which such claimants worked prior to-th6 strike .42 The respondent not infrequently transferred its employees from one shift to another both before and after the strike.43 Moreover, a, num= ber of the claimants were offered and accepted jobs on shifts other than those on which they had worked prior to the strike.44 , In general, there appears to be no reason why an employee working upon a given ,operation cannot perform his work equally well upon any, shift. In: determining whether or not a claimant was discriminatorily denied reinstatement to an available job subsequent to the strike, we'shall; in accordance with the respondent's common practice, consider as avail- able any job involving the same operation in the, same department, without reference to the shift upon which he worked prior to the strike: 2. General conclusions concerning the respondent's reinstatement policy and' the discriminatory refusal to reinstate strikers We have found that although the respondent engaged in unfair labor practices both before and during Ithe three-plant, strike, the strike cannot fairly be said to have been caused or prolonged thereby. It follows that the respondent was under no obligation at the close of the strike to make room for returning strikers by dismissing persons hired during the strike to take their places.45 But the respondent was required to refrain from discriminating against' strikers because of their participation in the strikers • The record clearly shows that the respondent through its supervisory and other employees during the strike threatened some of the strikers with the loss of their jobs if they did not return to work; that imme- diately upon the termination of the strike the names of all the strikers who had not by that date returned to work were removed from the respondent's pay roll; that thereafter the respondent through its pres- ident, its employment director, and one of its foremen made-many statements to applicants for reinstatement indicating its resentment that the employees had not returned -to work during the strike and indicating' its intention not to reinstate such employees for that rea- 43 As to three claimants , Barnett, Sushinsky, and Conde, who were offered employment on shifts other than those-on which they had worked prior to the strike, the respondent argued , inconsistently, that it had not discriminated against them because the jobs offered them were not "substantially different", from the jobs on which they had previously woi lied d3 The following claimants were so transferred : Szalek , Endrzewski, Kosmider, Lojewski, Frank Mozik , Papay, Katherine Wojcik, Beilen, Perek, Janiewzev,ski, Santin, and Kral 44 This type of information is not available as, to all the claimants . However, it does appear from their respective employment cards that the following were reinstated to different shifts : Burke , Sharwark , Kosmider,' and Wolski. , 45 N. L. R B. v. Mackay Radio f Telegraph Co, 304 U. S 333. 0N. L. R. B v The (food Coal Company, 110 F. (2d) 501 , (C. C. A.'0) Wilson ik Company v. N. L. R. B., 124 F. (2d) 845 (C. C. A 7). ' 1 JTUE-CLEVELAND WORSTED MILLS COMPANY 577' son, and that- the respondent thereby: manifested •°an intention to dis' l*-r criminate against the strikers as a class because they refused to' wor' during the course of the strike. - - As we have indicated; the respondent, despite applications for-'re -instatement filed-- by a substantial number of claimants, thereafter hired new or former-employees to do the work which the claimantswere doing when the strike was called. We have, moreover, fully considered the general defenses asserted by the 'respondent. We are of the` opin- ion, and find, that'the circumstances create,a prima facie showing that -strikers whose applications for reinstatement were passed over in favor of new or former employees have been discriminated against by the respondent because they refused to work during the strike. We here- inafter consider specific defenses asserted in connection with the cases of such strikers. 3. Specific defenses The jobs of 43 of the 83 Cleveland claimants herein considered were not, subsequent to the filing of applications for reinstatement by such claimants, filled by new or former employees.47 ' There has been no showing, therefore, that the respondent has discriminated in regard to the reinstatement of these 43 employees, and we shall,dismiss the - ' complaint as,to all but 3 of them '(Batic, Blazekovich, and Hlavsa) who, as shown below, were discriminatorily discharged after- being reinstated. Those 40 claimants as to whom the complaint will be dis- missed are listed in Appendix A, infra. As to some of the remaining 43 claimants; the respondent,has, asserted special defenses, which we now consider: a. The medical examination cases " All new employees, and all other employees who had not worked for the respondent for as long as 6 months, were required- to take medi- cal examinations. Dr. E. F. Kieger, who examined them, customarily classified themas Class I, Class II, or Class III risks;'or as disqualified. A Class I employee was qualified for any type of work, Class II' for lighter work, and Class III for only-very light work. By classifying some of the old employees as' "Class III on length of service," Dr. Kieger intended to leave the question of employment entirely to the discretion of the respondent without making any recommendation, whereas he would classify a new employee with like physical defects or ailments as disqualified. ' It was the respondent; and • not the doe- "" As to 1 of the .43, Emma Jeshka, it was stipulated at the hearing that she, applied t for reinstatement during the week of August 23, 1937. New employees were hired on, her job on August 24 and 25 respectively , but since it does not affirmatively appear that Jeshka applied , for reinstatement before they were hired , we shall dismiss the complaint as to heir. 481039-42-vol. 43--37 '4, 578 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD tor, who in -all cases determined whether an -employee was to be reinstated. The' respondent contends that immediately 'prior to the strike it -had difficulty in securing a sufficient -number of employees, and rehired many former employees -who, because of -their relatively un- favorable medical reports, would not have been given employment - under normal conditions. To support'this- argument,: it recites data, 4s showing, that it hired many more persons with , unfavorable medical , reports during the approximately 6-month period preceding the strike than during the approximately, 31/2-year period after the strike: These'absolute figures, however, are valueless as a basis for compari- sons. Actually, the compilation from which the respondent derived its -data indicates that between June 1935 and January 1, 1937, the , respondent employed 32 percent of the persons 'who then received unfavorable medical reports, and that' between January 1,, 1937, and the strike on June 21, 1937, it employed the same percentage of the ' persons who received such reports. This compilation, adjusted, to include the rejected claimants, indicates that the respondent' hired 28 percent of the persons shown to have received unfavorable medi- cal reports after the strike. Since the percentage of persons with unfavorable medical reports hired during the 6 ,months immediately preceding the strike, dur- Ing which'period the respondent, hired an all-time peak,number of employees, did not vary from the .percentage'^.hir,ed during, the pre- ceding,11/2 , years'49 the respondent's argument is not supported by the compilation to which it refers. The difference in percentages of per- sons with unfavorable medical reports hired before `and after the strike is so small, and the examples from which the percentages were derived are so few, that we are of the 'opinion that the figures prove nothing. The small relative difference in the number of persons-with unfavorable medical reports hired may as reasonably be cited in sup- port of the thesis that the respondent discriminated against the strikers, as^in support of the respondent's contention that there existed a laxity in the medical requirements immediately prior .to the strike. 'We have compared the medical reports of the claimants with the reports of nonclaimants both before and after the strike, and these comparisons will be discussed in connection with a consideration' of. 'the individual cases below.50, 48 The data from which the respondent's figures are compiled were'-obtained from` Board Exhibit 150,'a compilation of employees or applicants, other than the claimants, who were given unfavorable medical reports between June 1935 and the hearing in 1940 49 The respondent does not contend that this 11/2-year period -was abnormal 60 Althopgh 10 claimants were rejected by the respondent, allegedly, because of -adverse medical reports, we. shall consider the cases of only 7 of these claimants, since-no new' or former employees were hired to fill the jobs ot, the other 3 claimants The cases of those 3, Mary Shefski, John Karpovich, and Anton, Uszynski, will be dismissed. See Appendix A. THE CLEVELAND WORSTED MILLS COMPANY- 579 Caroline C. Bednarz, a gill-box operator in the Combing Depart- ment, applied for reinstatement shortly after the strike ended. There- after, on December 9, 1937, the respondent hired a former employee to do work which Bednarz had performed prior to the strike. Bed- narz, was recalled on December 1, 1938, but was denied reinstate- ment after receiving an unfavorable medical report. She was a Class III employee whom the doctor considered. as a "very poor shop risk." Although one employee, with a classification similar to Bednarz's and several others classed as "poor" shop risks were hired prior to the strike, no employee classed as a "very poor shop risk" or even as "poor" shop risk was hired subsequent to the strike.51 Although, we as we, have found, Masgay told Bednarz at the time of her application for reinstatement that she had lost her job because she .had refrained from working during the strike, we are not con- 'inced thatathe respondent, in.rejecting Bednarz after the medical examination, discriminated against her for that, reason. We, find that the respondent discriminated against Bednarz only, between December.9, 1937, when.a former employee was hired to do her work, and December 1, 1938, when the respondent was apprised of her unfavorable medical-report. Martha Godliewski and Anna Kubera, both cap twisters in the Twisting Department, applied for reinstatement immediately after the termination of the strike. On, January 17 and May 2, 1938, and thereafter, former employees were hired to do work which Godliewski and Kubera had.done prior to the strike. Both were recalled on, May 27, 1938,' and rejected after they had received unfavorable medical reports. Godliewski's medical report was marked "Qualified Class III-length of service, 9 years," and Kubera's report was marked "Qualified Class III-length of service, 27 years." Both before and after the strike, some persons whose medical re- ports were marked "Qualified Class III on length of service" were employed and some were rejected. However, most of those so marked were employed.' After the strikethe cards of 'three persons other than the claimants were so marked. Two of them were employed and one was rejected.' However, the rejected applicant was also rated as a "very poor shop risk." As stated above, the doctor made no recom- mendation in regard to employees classified as "Class III on 'length of service," and the respondent exercised its own 'discretion as to whether such employees should be reinstated. Both Godliewski and Kubera had been active on'the picket lines during the strike:., In view of the respondent's general intent t6 ,discriminate* against strikers, we find that the activity of Godliewski and Kubera on the picket line, and Sl Six of the 13 applicants rejected because of adverse medical reports subsequent to the strike (excluding the claimants) were classified as "poor" or "very poor" shop risks. 580 DECISIONS OF NATIONAL,LABOR RELATIONS BOARD not their adverse medical reports, was the deterlnining factor. in the respondent's decision not to reinstate them. ° Anna` Osiecki, a spinner in the Worsted Spinning Department, ap plied for reinstatement on the day the strike terminated and was recalled about December 1, 1938. She was rejected after receiving an adverse medical report. The medical report was -marked "Class III, length of service. Poor shop risk." As stated above, no employee classified as a "poor" shop risk was hired subsequent to the strike. Under these circumstances, although Osiecki had worked for there spondent for about 6 years, and although she had served on the picket lines, we are -not convinced that the respondent rejected her in Decem- ber 1938 because of her strike activity. We find that the respondent discriminated against Osiecki between November 15, 1938, when a for- mer employee was hired to do work which she had formerly done, and December 1, 1938, when the respondent was' apprised of her adverse medical report, but not thereafter. ' - Celia Bogucki, a spinner in the Worsted Spinning Department, applied for reinstatement shortly after the termination of the strike. On November 15, 1938, ignoring Bogucki's application, the respondent hired a former employee for work which Bogucki had performed prior to the strike. " Thereafter Bogucki was twice recalled to work, first on December 1, 1938, and again on July 23, 1940. On the first occasion she was ill and did not report., ;On the second, she was examined and was -rejected on July 25, 1940, on receiving a medical report'reading "Quali- fied Class III-special on length'-of service." Bogucki had worked for the respondent intermittently since 1912 and steadily between 1934 and the date of the strike'. - We find that by ignoring Bogucki's application and hiring a' former employee for work which Bogucki had performed, the respondent discriminated against Bogucki because she failed to work during the strike. The discrimination continued from November 15 to December 1, p38, when Bogucki was recalled and was unable to report 52 We further find that the respondent discriminated against Bogucki on July 25, 1940, when it rejected her on the basis of her adverse medical report. We base this finding upon the following circumstances : first, as we have pointed out, the respondent employed all non-claimant applicants who were similarly classified after the strike; second, as we shall show, a number of strikers who were recalled in 1940; at about the same time as. Bogucki, were allowed to work for a short period and were then discriminatorily discharged.53 - 62 Actually, the record shows, Bogucki was incapacitated by illness for about 2 months beginning , on November 21, 1938, so that she would not normally have had earnings during that period. See Appendix B. • 13 See subsection 3 (d) below. ` THE CLEVELAND WORSTED MILLS COMPANY 581 Joseph Tomczak, a, janitor in the Weft Department, was recalled in July 1940. His medical report, dated July 24, 1940, is marked "Disqualified on account of hernias. Poor shop risk." 'A new employee was hired on August 24, 1937, the day after' the termination' of the strike, to do work which Tomczak had formerly done 54 In accordance,with the. respondent's custom not to require medical examinations of employees who had been absent from employ- ment for less than 6 months, Tomczak-was entitled to reinstatement on August 24; 1937, without taking ti medical examination. ,if he had been reinstated at that, time it is possible that the 'respondent might never 'have discovered his ;physical incapacity. However, the re- spondent employed no persons classified as "poor shop risk" after the strike, and we are of, the, opinion that it would, not effectuate the policies of, the Act to .require, the respondent now to reinstate an em- ployee whose physical capacity. for work is as questionable, as that of Tomczak. We therefore find that the respondent, by denying Tomczak reinstatement between August 24, 1937, and July 24, 1940, discrimi- nated against him but we do not fin&that the respondent discriminated against him after July 24, 1940. b. Alleged failures to report when, called The respondent contends that three of the claimants, Josephine Chao, Frank (Harry) Maruns/ei,' rind' Mildred K. Pientowski, each of whom applied for reinstatement within a -week after the termina- tion of the strike, failed to report when they were recalled. A new employee had been 'hired on March 21, 1938, to do work which Char' had formerly done,' and the respondent offered no ex- planation for 'its failure to recall Charo at' that date. Charo was, offered reinstatement in November 1938, but was then pregnant and could not accept. 'When she was offered reinstatement in November she was told to report back whenever she was able.' She never there- after reported. We find, therefore, that the respondent discriminated against Charo only between March 21 and November 1938.55 mMasgay testified that Tomcza1 never applied for reinstatement. Tomczak, however, testified that he did apply and we credit his testimony, as did the Trial Examiner. According to Tomczak, he heard the strike, "was over" on Friday (apparently the day of the election wherein the Union lost) and applied for reinstatement "after the strike, Monday." Tomczak's wife testified that she heard on Sunday (apparently following the election) that the strike "was over" and that both she, and her husband applied for reinstatement early the next morning, at which time "quite a number" of other strikers were also applying. It is apparent from the record that a number of the employees considered that the strike "was over" when the Union lost the election on Friday, August 20, and that many of them applied for reinstatement early on ,the following Monday morning before' the strike was formally called off. Under the circumstances we find that Tomczak applied for reinstatement on Monday, August 23, 1937. ' It was stipulated that because of her condition Charo was unable to work after September 1, 1938. Her back pay under our order, below, ' makes allowance for this circumstance. ' 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 31, 1937, the respondent hired a former employee to do work which Marunski had formerly done. On October 25, 1937, Marunski went to a C. C. C. camp' near Cleveland, and left word with his mother, with whom he lived, to notify him immediately if the respondent should recall him. His arrangements with the C. C. C. ;were, "such that he could have left immediately upon being -offered reinstatement. Employment Director-Masgay testified- that' sometime prior to May 1938 she sent for Marunski and that he was not reinstated, at that time "maybe because he was not located." Marunski testi- fied that he was at no time informed by anyone that the respondent had tried to reach him, and that Masgay made no mention of such fact on May 27, 1938, when he talked to her about returning to work. We find, as did the Trial Examiner, that prior to May 1938 Masgay, upon inquiry, learned that Marunski was in a C. C. C. camp, but made no attempt to reach him there, and that the respondent there- fore made no bona fide attempt to reinstate him. The respondent, having discriminated against' Marunski prior tb his departure for the C. C. C. camp,_*as'under a duty toexercise'due diligence to lo- cate him in order to remedy its discrimination against him. This it did not do. Marunski was 'offered and declined reinstatement on July 23, 1940. We find, therefore, that the respondent discriminated against Marunski between August 31, 1937, , when the former em- ployee was hired to do work which he had formerly done, and July 23, 1940. A former employee was hired on January 17, 1938, to ' do work which Pientowski had formerly done. The respondent offered no explanation for its failure to reinstate Pientowski at that time. She was sent for'on November 30, 1938, but could not be located because of her failure to notify the respondent of a change in her address. We think the respondent sufficiently performed its obligation to re- instate her on that date. We find that the respondent discriminated against Pientowski only between January 17 and November 30, 1938. . c.' Alleged refusals of offers of employment Esther Barnett, Rose Conde, and Pauline Sushinsky, each.of whom applied for reinstatement shortly after the termination of the strike, were offered reinstatement on shifts other than those on which they were working at the time the strike was called, and each either re- fused to work on the different shift' or quit shortly after being re- instated on the different shift, because of her alleged inability to work on a shift different from that on which she had been previously em- ployed. There is no evidence that any of the claimants, except the three above mentioned, objected to being reinstated on a shift dif- ferent from that on which he had previously worked. THE CLEVELAND WORSTED MILLS COMPANY 583 At the time Conde and Snshinsky were first offered reinstatement no new or former employees had been hired on any shift to do work formerly done by them. At the time Barnett was offered reinstate- ment, both hew and former employees had been hired on, another shift, .but none hag. ever been hired on' her former shift to do work which she had performed. In the absence of a clear showing of dise'ririinatbryr purpose in offering 'a claimant work on a shift other than that upon which he formerly worked, we do not infer, discrimi- nation merely by virtue of such•an offer, but find that the respondent has performed its obligation of offering reinstatement. No such showing is made in these cases. We- accordingly find • that' "the re- spondent discriminated, against Barnett only between January 3, 1938, when it hired a former employee on Barnett's operation, and, December 1, 1938, when it offered Barnett reinstatement on a different shift. Since no new' or former employee was hired on any shift to do work which Conde and Sushinsky had done prior to the time when they were offered reinstatement, we find that the respondent did not discriminate, against them. Angela..Wershylo, a gill=box operator in the Combing Department, applied for reinstatement on' the -day' the strike terminated and was offered reinstatement on May 23, 1938, at which time she notified the respondent that she could not report for work because of the necessity of leaving town to see a sick relative. It is undisputed that Wershylo fabricated this story and remained in town to work on a WPA job, which she had obtained on December 14, 1937, and that Masgay saw her in town when she was supposed. to be out of town., We find that Wershylo's conduct amounted to a refusal of reinstatement on May 23, 1938, ' which relieved the respondent, of its -obligation to offer her employment. The, respondent, however, had on December 9, 1937, ¶liired-V`,former ' employee to do work which Wershylo -had performed prior to'the strike. We therefore find that the respondent discriminated against Wershylo between December 9; 1937; and May 23, 1938, but not thereafter. d..The 1940 reinstatements Ten of the claimants , all of whom applied for reinstatement shortly after the termination of the strike, were reinstated and worked for brief periods of time ih 1940. The jobs of 3 of these 10, Mary Wierz- bicki, Bertha Janiewzewski, and John Deveraux, had, prior to their reinstatement , been filled , on December 9, 1937, November 15, 1938, and November 28, 1938, respectively, by new , or former employees and no, adequate, explanation was offered by the respondent for its .4- 584 . DECISIONS OF NATIONAL LABOR RELATIONS, BOARD failure sooner to reinstate the 3• claimants: We accordingly find that the respondent, discriminated against them between the dates when the new or former employees were hired, on their jobs and the dates when, they, were reinstated. One ,of the ,three,, Wierzbicki,.after being reinstated,on=July: 29, was discharged on August 2,', 1940, allegedly' because she - and., another employee ' who worked with her as a team failed- to earn their ,guaranteed minimum wages: Because Wierzbicki'had not been work- ing for the respondent since the'strike, it maybe- assumed that she was not as skillful as other emplovees, who had worked regularly. Helen Borski, the respondent's ,efficiency expert, admitted that some employees who 'had earned less than their minimum during July-and August 1940,were not discharged. When asked how long • a period she usually permitted employees to work earning less. than their minimum, Borski replied .that she permitted them to work less than 5 weeks. We construe her answer to mean that she usually permitted • employees to, work approximately 5 'weeks earning- less than their minimum. By this standard, Wierzbicki, who was permitted, to work only 4 days, was clearly not given the leeway usually accorded employees. - Borski testified that before reinstating any of- the employees who were, reinstated in 1940, she ,'had determined from their personal ^ appearance • that none of them should have been employed and she,kept a close check on their work' after they were reinstated., It is plain, therefore, that the respondent's treatment of Wierzbicki after reinstating her was discriminatory and we find that she was discharged on August 2, 1940, because of her refusal to work during the strike. . Janiewzewski after being reinstated on July 31, 1940, quit her em- ployment on August 6. We therefore find that the respondent did not discriminate against her after reinstating her. Deveraux after being reinstated on July 13, 19.40, failed to -appear for work on August 12 and an investigation by the respondent.dis- closed that he did not report for work because of drunkenness. Borski thereupon ordered that he be discharged. Although there is some evi- dence that the respondent had in the past condoned drinking on the part of its employees, we are nevertheless not, convinced that. Dev- eraux's discharge was occasioned' by any reason other than his ab- sence because of drunkenness. We therefore find, that the respondent's discrimination'as to him ceased at the time when it reinstated him on July 13, 1940. - , • As to seven other strikers who were reinstated in 1940, no new or former employees had been hired subsequent to the strike to work at their jobs. The respondent therefore did--not discriminate against THE CLEVELAND WORSTED MILLS COMPANY 585 them prior to reinstating them .w One of these seven, Edward Miko; lajski, voluntarily quit his job soon after being reinstated and it is clear that the respondent did not discriminate against him after re-, instating him. The other six strikers,' however, were discharged by the respondent shortly after being reinstated and each claims that his discharge was discriminatory. Louise Batic was reinstated on July 311$ and-discharged on August 13; Mary Blazekovich _was rein- stated on July 29 and discharged on August 2, 1940;, and Anna Hlavsa was reinstated on July 29 and discharged on August 6,1940. The reason assigned by the respondent for discharging each of these employees was that he failed to earn his minimum wage or otherwise performed- his work unsatisfactorily. As stated above, in discussing the case of Mary Wierzbicki, the respondent customarily permitted employees, to work as long as about 5 weeks earning less than their minimum before discharging them. We find, as we did in Wierzbicki's case, that the respondent by applying stricter standards of efficiency to the three employees above mentioned, discriminated against them because they refused to work during the strike. Two other employees, Lillian Gnidzinski and Helen'Krych, were permitted to work approximately 1 month without earning their guaranteed minimum before being discharged. The respondent therefore ' permitted them to work ap- proximately as long as was customary without earning the minimum wage and we therefore find that its discharge of 'them was not dis- criminatory. The last employee, Stanley Kotowski, after-being-re- instated on July 31, 1940, was discharged on August 6.: ' According to Borski, he was discharged because of his inability to keep up with his work and the consequent tying up of other departments. Kotowski was a trucker and his failure to keep up with his work held up the work in other departments and led to a disruption of operations. Al- though in view of- Borski's testimony relative to her attitude toward these employees who were reinstated in 1940, Kotowski's case is not free from doubt, nevertheless, we find, as did the Trial Examiner, that Kotowski was discharged for a legitimate reason. e. Miscellaneous cases Genevieve Danielowicz applied for reinstatement immediately after the termination of the strike. Thereafter, on March 21, 1938, a new 60 The respondent excepted to the Trial Examiner's findings relative to the discrimina- tory discharge of some of these employees on the ground that their discriminatory dis- charge was not alleged in the complaint. The facts relative to these discharges were fully developed at the hearing,'however, and the respondent had an opportunity to and did meet the issues. Under, the circumstances we find that the respondent was not prejudiced by the failure of the complaint to allege that the employees were discrimina- torily discharged. Cf. Stewart Die Casting Corp. v. N. L. R. B., 114 F. (2d) 849 (C. C. A. 7), cert. denied '312 U. S. •680, enf'g Matter of Stewart Die Casting Corporation and United Automobile Workers of America, Local 298, et al., 14 N. L. R. B. 872; Fort Wayne Corrugated Paper Co. v. N. L. B. B., 111 F.(2d) 869 (C.• C. A. 7). 586 DECISIONS OF NATIONAL LABOR `RELATIONS BOARD employee was hired to do work which Danielowicz had formerly done. She was not called back to work until August or September 1938: She --testified that Masgay told her to report to her foreman Sam Smith; that- 'he did so ; that a few minutes' later he sent her back to Masgay, who thereupon told -her, "Sam does' not want you because 'you did not 'come to work"; that she, Danielowicz, then explained ,to Masgay that she had not wanted to work: as a "scab". and left the plant. ' Sam Smith testified that he permitted Danielowicz,to work for a, half hour but that she was incapable 'of doing the work and that he therefore sent her back to Masgay. Masgay denied the conversation "related by Danielowicz. The''Iespondent's contention that Danielowicz proved herself incapable' in so' short a. time is not convincing. Moreover, her employr'rient card, which shows that 'she` worked intermittently for the respondent for 'about 13 years,' contains no notation about the incident. We credit Danielowicz's testimony a's' did the Trial Ex- aminer, and'find that Danielowicz was not permitted to work- in the fall of 1938 because-'of her refusal -to work when she, was ' sent--for during the strike. ' The 'respondent reinstated her on December 5, 1939. We' therefore find that the 'respondent discriminated against her between March 21, 1938, arid' December 5, 1939. Toryii^ O'Brien is the only"elnployiee'whom the respondent asserts`th'at 'it does -not;interid to 'reinstate.' The -reason assigned by the respondent for refusing to reinstate- O'Brien is that he ' used very foul' language in addressing' Poss' during the strike. O'Brien ' admitted that, ,upon ,one occasion during the ,strike, after, being released from jail and believing-that Poss was responsible for his arrest, 'he cursed- Poss and called -him obscene-names' in the presence of a number of people who were 'gathered' in' a restaurant near the plant, and that he started to strike Poss a's the latter left the restaurant. ; O'Brien testified further, however, that'as he:entered the restaurant, Poss'remarked to him-that he, Poss, had "picked-[O'Brien] up-fromn nothing" 57 and-cursed him. Poss testified that he left the restaurant Without-speaking, to O'Brien after the latter had called him vile-and obscene names and threatened to attack him. Rhodes, secretary of the respondent, who was with Poss at the time of the altercation, also testified that Poss had not ,spoken to O'Brien when the,latter cursed Poss. Poss testified at the hearing that-he did not intend to reinstate O'Brien, explaining, "I felt that'! .would lose-my self-respect after all the vile names he had called me, ever to take him back in my plant. It did not matter,what my own personal feeling might be toward Tom O'Brien, but he made it impossible to take him back." Accepting O'Brien's own testimony in regard to the altercation, as the Trial Examiner apparently did,' e'' O'Brien had once been convicted of a felony and served a term in prison and he claimed to have interpreted Poss' remarks as a reference to his criminal record. THE CLEVELAND WORSTED MILLS COMPANY 587 we are nevertheless of the opinion that in view of O'Brien's conduct the respondent was warranted in refusing to reinstate him after the. strike. We find that the respond:ent .did not refuse to reinstate him because of his union membership and activities. We have considered above the respondent's specific defenses to charges that ' it discriminated against employees of its Cleveland plant who refused to return to work during the strike. There remain 24 other claimants as to. whom the respondent asserts only the gen- eral defense that they- were less efficient than new or former em- ployees hired totfill,their •jobs. For-re ' asons appearing, above, we find this defense to' be without merit. We accordingly find, in the light 'of • our discussions above and upon the entire record, that the respondent discriminated in regard to the hire and tenure of employment of Caroline C. Bednarz, Martha Godliewski, Anna Kubera, Anna Osiecki, Celia Bogucki, Joseph Tomczak, Josephine Cliaro, Frank (Harry) Marunski, Mildred K. Pientowski; Esther Barnett, Angela Wershylo, Mary Wierzbicki, Bertha Janiewzewski, John Deveraux, Louise Batic, Mary Blaze- kovich, Anna Hlavsa, Genevieve Danielowicz, and 24, other em- ployees listed in Appendix B, all of whose jobs, were filled with new or former employees,subsequent to their application for reinstatement, and thereby discouraged membership in the T. W. O. C. and the T. W. U. A. and interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Refusals to reinstate at Redfern and at Annevar Four employees of the Redfern plant and four employees of the Annevar plant were denied reinstatement subsequent to the strike allegedly because they were arrested in Cleveland during the strike under circumstances which the respondent claims' indicated that the employees were bent on a mission of vandalism. The circumstances surrounding' the arrest of these employees are as follows : In con- nection with 'picketing the Cleveland plant, Frank Miazga from the Redfern plant, and Roland Watson, Kennet/i Cox, and Harold Work- man, from the Annevar plant, in a car driven by Miazga, followed another car until it drove into a, police station.' In the latter car were riding J. C. Ewen, manufacturing superintendent of the Cleve- land plant, and other employees who were working during the strike: 'Miazga drove past the police station but stopped 'near it upon meet- ,ing•a car from Ravenna, driven by Anna'Porcase from the Redfern plant and containing Rose Russo and Rose Tannert Duber, also, from the Redfern plant, and Maij Kline from the Annevar plant. While the employees in the two cars were talking with one another, they were placed under arrest at the request of Ewen, who pointed them out 55 DECISIONS ' OF 'NATIONAL LABOR RELATIONS BOARD to the police., The police upon searching the cars found -stones in the car ' which was ' driven by Anna Forcase. All of the employees arrested were released after having been detained for about 2 hours. After the termination of the strike, all of the strikers at the Red- fern and Annevar plants, except those arrested at Cleveland during the strike, were offered reinstatement in accordance with a,seniority list agreed upon with the Union. Arthur Kaye, superintendent of the Redfern plant, and Robert Anderson, superintendent of the Annevar plant, each claimed to have reached an independent de- cision not to reinstate those employees who were arrested because of a belief that the employees were in' Cleveland for purposes of vandalism. None of those arrested was reinstated until after the' May 1938 settlement at which time the names of all of them were placed upon the respondent's seniority lists at each of the Ravenna plants and all except Kline 58 were offered reinstatement in accord- ance with such lists. As appears in Section III B above, Superintendent Kaye at the Redfern plant had indicated his hostility to collective activity on the part of employees of the Redfern plant in the fall of 1936 and had discriminatorily discharged two employees who had been active in circulating a petition for better wages and working conditions. • Super- intendent Anderson at the Annevar plant likewise showed his dis- pleasure toward the union activities of employees under him when shortly prior to the strike he admittedly attempted to persuade some of the employees that they should not participate in the proposed strike at the Cleveland plant. Anderson testified at the hearing that he considered those employees who went to Cleveland and were ar- rested as "troublesome people" and believed that they should have stayed away from the Cleveland plant "which was really in substance none of their affair." The attitude of Kaye and Anderson thus evinces strong displeasure toward attempts at effective collective activities on the part of the respondent's employees and this fact together with the many acts and statements of the respondent's, officials set forth, above showing their hostility toward the T. W. ' O. C., convinces us, and we find, that the respondent refused to reinstate those employees, who were arrested during the strike because they had gone to Cleve- land for the purpose of helping make the strike effective. None of the employees arrested in Cleveland was convicted of, tried for, or even charged with the commission of any crime.' Although the respondent caused their arrest it did not press charges against them. We find that by refusing to reinstate these eight employees or place their names "Kline's name was not reached upon the list due to a curtailment of work in her department. Her name was finally dropped from the list in accordance with an under- standing between the respondent and the Union. THE CLEVELAND WORSTED MILLS COMPANY, 589 upon its seniority lists prior to May 1938 the respondent discriminated in regard to their hire and tenure of employment, thereby discourag- ing membership in'the T. W. U. A. and interfering with, restraining,' and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. The complaint alleges that the respondent also discriminatorily denied reinstatement after the strike to Anthony Porcase. The record shows, however, that Porcase's reinstatement was, controlled by the seniority list agreed upon by Anderson and the Annevar Local of the T. W. 0. C. There is accordingly no merit to this allegation of the complaint and we shall dismiss the complaint insofar as it alleges that the respondent discriminated against Anthony Porcase. Frank Russo at the Redfern plant was offered reinstatement on May 23, 1938, to a position as tape boy, instead of to the position of gear changer, at which he was working at the time of his discriminatory discharge in November 1936. Russo refused the offer of a tape boy position, stating that he wished to be reinstated to the position from which he was discharged. The respondent contends that although Russo had been working as a gear changer in November 1936,.that his work at such position was only temporary and that his regular job was that of tape boy. Russo's employment card does not show that he was ever transferred from, his job as' tape boy. Moreover, the' record shows that Russo while working as a gear changer continued to do tape boy work at times: Under the circumstances, we are of the opinion that the respondent fulfilled its obligation to Russo by offering him reinstatement as a tape boy on May 23, 1938, and that the respondent's discrimination against him ceased at that time. Roland Watson after the May 1938 settlement applied for rein- statement at the Redfern plant, the plant from which he had been discriminatorily discharged in November 1936, instead of at the Annevar plant, where he was working at the time the strike was called. Superintendent Kaye told him that he was an employee of the An- nevar plant and that he should apply for reinstatement there. Wat- son did not thereafter apply at the Annevar plant. Watson's rein- statement at the Annevar plant in February 1937, instead of at the Redfern plant from which he was discharged, was in the nature of a settlement pending a decision, by the Board in regard to a charge - which Watson had filed. He testified that he never,intended that his acceptance of the job at the Annevar plant should be a final .settlement of his claim. His job at the Annevar plant was not as-desirable as his job at the Redfern plant because his low seniority at the Annevar plant resulted in his being frequently laid off. That Watson consid- ered himself an, employee of the Redfern plant is also indicated by the fact that he retained his membership in the Redfern Local of the 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD T. W. 'O., C. after accepting the job at the Annevar plant. We find that Watson was entitled to reinstatement at the Redfern plant and that he was not obliged to apply for reinstatement at-the Annevar plant. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respond- ent described in Section I, above, have a close, intimate, and substan- #-ial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. We have found that the respondent dominated and interfered with the administration of, and contributed financial and other support to, the Employees' Representation Plan. The record- indicates that this organization has not functioned since sometime prior to,'the 1937 three-plant strike. The respondent, however, at no time has taken any affirmative, action to disestablish this labor organization. Ac- cordingly, although it is unnecessary to order that it be disestablished, we shall order that the respondent refuse hereafter to extend-recogni- tion' to the Employees' Representation Plan in the event that such organization resumes functioning.5° We have further found that the respondent, by discharging Roland Watson, Frank Russo, Casimer Trzaska, Louise Batic, Mary Blaze- kovich, and Anna Hlavsa has discriminated in regard to their hire and tenure of employment. Watson's employment at the Annevar plant prior to the strike did not, as we have shown above, remedy the respondent's discrimination against him. We shall therefore order that the, respondent offer him reinstatement to his former or substantially equivalent position'at the Redfern plant without preju- dice' to his seniority or other "rights and privileges .G° Russo, as stated above, refused an offer of reinstatement on May 23, 1938. The re- spondent/will not, therefore, be required to offer him reinstatement. '9 Matter of B: Z. B Knitting Co.' and American Federation of Hosiery Workers, Local Fo. 64, affiliated with the Congress of Industrial Organizations, 28 N. L. R. B. 257 ; see also Eagle-Picher Mining & Smelting Co. v N. L. R. B, 119 F. (2d) 903 (C. C. A. 8). 00 Watson had seniority at the Redfern plant over all other weigh boys and would normally therefore have been reinstated on September 23, 1937, when the plant reopened. THE CLEVELAND WORSTED MILLS COMPANY 591 Trzaska on May 31, 1938, was given work as a scaler, a more difficult job than the job of oiler at which he was working prior- to the respondent's discrimination, against him on May 1, •1937. More- over, his employment as a scaler resulted in his brother, also a scaler, being laid off part of the time. The brother was a married man and needed the work worse than Trzaska, who was single,, and, for that reason Trzaska quit after working 2 days. Under the cir-, cumstances, we find, as did the Trial Examiner, that the job as scaler was not substantially equivalent to Trzaska's former job as an oiler. Neither Trzaska, Batic, Blazekovich, nor Hlavsa had been reinstated at the time of the hearing and we shall order the respond- ent to offer them reinstatement to their former or substantially, equivalent positions without prejudice to their seniority,,or other rights and priviliges, if it has not already done so. We shall also require the respondent to make the six employees above named whole for any loss of pay they may have suffered by reason of.the•discrimi-, nation against them by payment to each of them of,a sum of,money_. equal to the amount he normally would 'have earned as wages, from the date of the original discrimination against him to the date of the offer of reinstatement in the cases of Watson, Trzaska, Batic,, Blazekovich, and Hlavsa, and to -May 23, 1938, in Russo's case, less his net earnings 61 during these periods and less any amounts he may have received from the respondent as a result of the 1938 settlement. We, have found that the respondent has discriminated in regard to the hire and tenure of employment of 39 employees of its Cleveland plant by failing and refusing to reinstate them after the June 1937 strike as jobs became available. These 39 employees are listed in Appendix B. Three of them,, Martha Godliewski, Anna Kubera, and Celia Bogucki,. had not been reinstated at the time of the hear- ing, and we shall therefore order the respondent to offer them rein- statement to their former or substantially equivalent positions with- out prejudice to their seniority or other rights and privileges, if it has not already done so, dismissing, if necessary, any new or' former employees hired subsequent to their applications for reinstatement on the jobs at which they formerly worked. In order to effectuate the policies' of the Act, we shall also order that the respondent make 61 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board incurred by an employee in connection with obtaining work and working else- where than for the respondent, 'which would not have been incurred but for the discrim- ination by the respondent and the consequent necessity of his seeking employment else- where. See Matter of Crossett! Lumber Company and United Brotherhood of Carpenters and Joiners ' o f dinerica; ;Lumber, and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county , and municipal or other work-relief projects , shall be considered 'as earnings . See Republic Steel Corporation V. National Labor Relations Board, 311 U., S. 7. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whole with back pay, in the manner set forth below, these 39 em= ployees-against whom we have found that the respondent has dis- criminated, subject, however, to our findings relative to several con- tentions of the respondent which we shall now, consider. The respondent contends that charges in behalf of many of the claimants at the Cleveland plant were not filed until 1940 and indi- cates that if charges had been sooner filed, it would have reinstated the claimants sooner and thereby minimized the amount of back pay for which it would normally become liable. The record shows that 8 of the claimants, as to whom we have found the respondent dis- criminated by hiring new or former employees on their jobs, filed charges prior, to the May 1938 settlement,62 but that 19 others 63 re- ceived money in connection with the settlement and the respondent was put on notice of their claims' when it received receipts and re- leases from them in July 1938. The respondent does not claim that it has been prejudiced by any delay in the filing of charges prior to the 1938 settlement, and we find that the claimants who filed charges at any time prior to'the settlement or who were included in the settle- ment should not be denied the usual back-pay, remedy.' There are 3, other claimants against whom we have found the respondent discrimi- nated whose jobs were not filled by new or former employees until after the settlement, but who filed charges within 6 months after their jobs were so filled.',' As to these claimants also, we find' that the usual back-pay remedy should not be denied. There remain, how- ever, 11 claimants who were not included in the settlement and whose jobs had been filled for more than 6 months before charges were filed in their behalf, and no extenuating circumstances are'shown to excuse the delay in filing charges.65 We find that the policies of the Act will best be effectuated by denying back pay to them for the period prior to the date on which charges were filed on their behalf.- - The respondent also contends that it should not be required to give back pay to 10 of the employees as to' whom we have found. it discrimi- nated because they made no effort after the strike to secure employ- ment, elsewhere, some - of them devoting their entire time to their homes and families .66 It appears, 'however, that each of these em- 62 Angela Wershylo , Tom, Wesolowski, Martha Godliewski , Anna Kubera , Mary Cimek Sanik, Rose Miller, Anna Vogler, and Bertha Janiewzewski. 63 Stella Conde, Josephine Charo, Caroline Bednarz, Mary Kalinowski , Catherine Urban, Stella, Zablotna, Florence Pritchard , Frances Stelak Wesolowski, Mildred Kaprowski Pientowski , P. -L. Small, P . H Flaherty, Frances Kral , Florence Pietrzak, Eva Papay, Celia Burke , Theresa Sharwark , Kate Wojcik, Mary. Kosmider,' and Anna Osiecki. 04 John Deveraux, Kate Wojcik, and Celia Bogucki. - I I 0G Genevieve Danielo icz, Margaret Szalek , Mary Wierzbicki, Helen Skoda , Walter Kowalski , Frank Marunski , Agnes Wojcik, Katherine Wavrzacz , Helen Lojewski, Joseph Tomczak, and Esther Barnett. 06 These 10 employees, area Caroline Bednarz, Mary Blazekovich , Martha Godliewski, Bertha Janiewzewski , Frances Kral, Anna Kubera, Florence Pietrzak, Catherine Urban, Katherine Wojcik, and Anna Porcase. THE CLEVELAND WORSTED MILLS COMPANY 593 ployees applied for reinstatement and desires his old job back. His failure to look for work elsewhere or to make diligent effort to find work elsewhere may, for aught that appears in the record, have been occasioned by inability to work elsewhere due to distance from home, inexperience at other work, or a similar good reason. None of the claimants was shown to have "willfully incurred" any loss 67 We find that it will not effectuate the policies of the Act to withhold the usual back-pay remedy from any of the 10 claimants for the reason asserted by the respondent611 The respondent contends that the Board is without power to order reinstatement and back pay for three of the employees as to whom we have found it discriminated,19 on the theory that, such employees have obtained regular and substantially equivalent em- ployment and are, by reason of such fact, no longer employees with- in the meaning of the Act.70 For reasons heretofore fully stated by us in other cases,71 we find that whether or not the employees obtained regular and substantially equivalent employment elsewhere, effectuation of the policies of the Act requires that the respondent be ordered to reinstate them. We accordingly find it unnecessary to decide whether or not the three employees above mentioned have obtained regular or substantially equivalent employment. Subject to our finding above in regard to 11 of the claimants who failed to exercise diligence in filing their claims with the Board, we shall require the respondent to make whole with back pay all the claimants at the Cleveland plant against whom'we have found that the respondent has discriminated by paying to each of them a sum of money `which he normally would have earned between the date when his job was filled by a new or former employee and the date N ar See Phelps Dodge Corp . v. National Labor Relations Board, 313 U. S. 177; see also, Matter of Western Felt Works, a corporation and Tactile Workers Organizing Committee, Western Felt Local, 10 N. L. R. B. 407, enforced Western Felt Works v. National Labor Relations Board, March 25, 1939, (C. C. A. 7). °° The respondent cites, in support of its contention that back pay should be denied claimants who did not seek employment elsewhere , the case of Sulnn, et al . v. National Labor Relations Board, 113 F. (2d) 202 (C. C. A. 3), wherein the Court held that back pay should not, be awarded an employee who after being laid off did not try very hard to gain employment elsewhere because her only child was ill and she was engaged in looking after her child , the Court concluding that she "was largely occupied by family duties as a matter of her own choice." It did not affirmatively appear in that case that the employee would have left her sick child to return to work. In the instant case, since each claimant had applied for reinstatement, we must assume that he would have returned to work noon being offered reinstatement. 00 Frank Russo , Roland Watson, and Frank Marunski. 70 That the Board has such power has,been recognized in Phelps Dodge Corp. V. National Labor Relations Board, 313 U S. 177. 71 See Matter or Ford Motor Company and International Union United Automobile Workers of America, Local Union No. 249, 31 N. L. R. B 994; Matter of Phelps Dodge Corporation, a corporation and International Union of Mine, Mill and Smelter Workers, Local No. 30, 35'N. L. R. B. 418. ` 481039-42-vol. 43-38 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was reinstated or was offered and declined , reinstatement,722 less his net earnings during this period and less any amount which he may have received from the respondent as a result of the 1938 settle- ment. Where, on a given operation, a new or former employee has been hired to do work formerly done by more than 1 of the claim- ants concerning whom we have found that, the respondent discrim- inated, we shall assume that the claimant who was first thereafter reinstated would, in the absence of any discrimination, have been entitled to the job which was given to the new or former employee and that the claimant who was next reinstated would, in the absence of any discrimination, have been given a job-at the time that the first claimant was reinstated, etc. We shall, therefore order that the respondent give back pay to the first claimant ;%vho was reinstated for the period between the date of employment of the new or former employee, and the date of his, the first claimant's, reinstatement. We shall order that the respondent give back pay to the second claim- ant for the period between the date of the reinstatement of the first claimant and the date when he, the second claimant, was reinstated, etc. Where more than 1 claimant was offered' reinstatement on the same date, back pay computed on a basis similar to that above out- lined shall be equally divided between them.73 The claimants who are thus entitled to back pay and the dates during which such back pay has accrued or is accruing are listed in Appendix B. At the Annevar and Redfern plants, the respondent had 'agreed with the Union and it was customary to reinstate employees on the basis of their seniority. We shall therefore order that the respondent make whole with back pay Frank Miazga, Kenneth Cox, Harold Workman, Anna Porcase, Rose Russo, and Rose Tannert Duber from the date each respectively should have been reinstated on the basis of his senior- ity to the date when he was actually reinstated, less his het earnings during this period and less any amount which he may have received from the respondent as a result of the 1938 settlement. Since we have found that the respondent has not discriminated in regard to the hire and tenure of employment of the employees named in Appendix A, we shall dismiss the complaint insofar as it alleges the contrary. 72 The Trial Examiner excluded evidence and rejected offers of proof by the respondent relative to the length of time each new or former employee , after being hired subsequent to the strike , remained in the employ of the respondent. We consider such evidence rele- vant to the reinstatement and back-pay provisions of our order , and the Trial Examiner's ruling is hereby reversed and the offers of proof are received and considered by us as evidence on the reinstatement and back-pay , issue. 72 A'similar method of computing , back-pay, awards was utilized in Matter of Acme,Avr Appliance Company, Inc. and Local No. 1223 of the United Electrical, Radio and Machine Workers of Ame,tica, C. I. 0., 10 N. L R. B 1385, enf'd as to this point, N. L. R. B. V. Acme Air Appliance Co., 117 F. (2d) 417 (C. C. A. 2). 7 THE CLEVELAND WORSTED MILLS COMPANY 595 .Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Textile Workers Union of America, affiliated witn the Congress of Industrial Organizations, is a labor, organization, and United Tex- tile Workers, affiliated with the American Federation of "Labor, Tex- tile Workers Organizing Committee, affiliated with the Committee for Industrial Organization, and the Employees' Representation Plan, at the Cleveland, Redfern, and Annevar plants 3f the respondent, were labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the administration of the Employees' Representation Plan and contributing financial and other support thereto, the respondent has engaged 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 employment of Roland Watson, Frank Russo, and Casimer Trzaska, and thereby discouraging membership in Textile Workers Organizing Committee, the respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (3) of the Act. 4. By discriminating in regard to the hire and tenure of employ- ment of Louise Batic, Mary Blazekovich, Anna IIlavsa, Frank Miazga, Kenneth Cox, Harold Workman, Anna Porcase, Rose Russo, Rose Tannert Duber, and Mary Kline, and those employees listed in Appen- dix B, attached hereto, and thereby discouraging membership in Tex- tile Workers Organizing Committee and Textile Workers Union of America, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 5. By interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respond- ent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. , 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 7. The respondent has not discriminated in regard to the hire and tenure of employment of employees listed in Appendix A, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor -Rela- tions Act, the National Labor Relations Board hereby orders that 596 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD the respondent, The Cleveland Worsted Mills Company, and its offi- cers, agents, successors, and assigns, shall : 1. Cease and desist from : '(a) Dominating or, interfering with the administration of, and from contributing financial or other support to, the Employees' Rep- resentation Plan, or any other labor organization of its employees; (b) Discouraging membership in Textile Workers Organizing Com- mittee or Textile Workers Union of America, or any other labor or- ganization of its employees, by discriminating in regard to the hire or tenure of employment or any terms or conditions of employment of its employees; I • (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will • effectuate the policies of the Act : (a) Refuse hereafter to recognize the Employees' Representation Plan at each of its^Cleveland, Redfern, and Annevar plants, as the representative for collective bargaining of any of its employees if the Employees' Representation Plan should at any time resume func- tioning at any of the respondent's three plants; (b) Offer to Roland, Watson, Casimer Trzaska, Louise Batic, Mary Blazekovich, Anna Hlavsa, Martha Godliewski, 'Anna Kubera, and Celia Bogucki, immediate and full reinstatement to their former or substantially equivalent positions in the manner set forth in the section entitled "The remedy" above; (c) Make whole Frank Russo, Casimer Trzaska,,Roland Watson, Louise Batic, Mary Blazekovich, Anna Hlavsa, Kenneth L. Cox, Har- old Workman, Frank Miazga, Anna Porcase, Rose Russo, ,Rose Tan- nert Duber, and the employees listed in Appendix B, and each of them, for any loss of pay he may have suffered by reason of the re- spondent's discrimination in regard to the hire and tenure of his em- ployment and the terms and conditions of his employment, by pay- ment to.each of them of a• sum of money equal to that which he nor- mally would have earned as wages from the date of the respondent's discrimination against him to the date when he was reinstated or is 'offered reinstatement, as set forth in the section entitled "The remedy" above, less his net earnings during said period and less any amounts he may have received from the respondent as a result of the 1938 settle- ment; • THE CLEVELAND WORSTED MILLS COMPANY 597 (d) Post immediately in conspicuous places throughout its plant at Cleveland and throughout its Annevar and Redfern plants at Ravenna, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating,(1) that the respondent will not engage in the conduct from. which it is ordered to cease and-desist in paragraphs 1 (a), (b), and-(c) of this Order; (2) that the respondent-will take' the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3), that the respondent's employees are free to become or remain members of Textile Workers Union of America or any of its locals, and that the respondent will not discriminate against any employees because of membership or activities,in that organization; (e) Notify the Regional Director for the Eighth Region, in writ- ing, 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 complaint be, and it hereby, is, dismissed insofar as it alleges that the respondent discriminated in regard to the hire and tenure of employment, of the employees listed in Appendix A. Appendix A 1. Employees as to whom complaint will be dismissed because their jobs were not filled by new or former employees subsequent to their applications for reinstatement : Mary' Kasko Frank Mozik Sophie Borkowski Mary Mozik Sylvester Kaminski Stella,Barwacz Stanley' Kotowski Elizabeth Barbeck Kasimer Lasinis Louise Brabenic Cech Steve Wojcik Florence France Percy Waite Pauline Sushinsky Emma Jeshka Stella Romanek Lillian Gnidzinski Edward Wolski Bernice Jaworski Edward Mikolajski Helen Krych Frank Kara Valeria Perek John Karpovich Frank E. Pinkas, Jr. Stanley Siegel Joseph Bielawski Catherine Duplaga James Gildea Mary Shefski Rose Miller Anna Sterger Anton Uszynski Rose Conde, Joseph Cadek Victoria Santin Rose Mozik Helen Chahulski Clifford Uridel William B. Merriman 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Employees as to whom complaint is dismissed- for other reasons : Edna Vogelsong Tom O'Brien Henry Badaczewski Anthony Porcase Raymond Ferrell Appendix - B Employees of the Cleveland plant as to whose reinstatement the respondent has discriminated and periods during which back pay, if any, has accrued in their favor : Name Back pay Stella Conde_______________________ 12-14-38 to 2-10-39. Josephine Charo___________________ 3-21-38 to 9-1-38. Genevieve Danielowiczx__=__-_____-_ 10-20-39 to 12-5-39. Margaret Szalek*_______________-___ - - Angela Wershylo__________________ 5-19-38 to 5-23-38. Caroline Bednarz------------ ------ } 5-23-38 to 12-1-38 74 Mary Kalinowski------------------ Catherlne Urban___________________ . 12-1-38 to 12-5-38. Stella Zablotna_____________________ 12-5-38 to 12-7-38. Mary Wierzbicki*__________________ 6-19-40 to 7-29-40. Florence Pritchard_________________ 5-20-38 to 11-1-38. Frances Stelak Wesolowski--------- 10 -31-38 to 11-25-38. Helen Skoda*______________________ - - Walter; Kowalski*_________________ - Tom Wesolowski___________________ 8-31-37 to 12-5-38.- Frank Marunski*__________________ 6-19-40 to 7-23-40. Martha Godliewski_-_-_- 1-17-38 to 5-2-38 until reinstated. Anna Kubera------------ 5-2-38 ---- 5-2-38 until reinstated. 75 Agnes Wojcik*-=------------------- - - Mildred K. Pientowski______________ 7-14-38 to 11-30-38. Mary Cimek Sanik____________ _____ 7-18-38 to 12-1-38. Anna Vogler_______________________ 1-20-38 to 3-1-38. - P. L. Small____________ ___________ 11-28-38, to 12-1-38. John 'Deveraux---------------------- 12-1-38 to 7-31-40. *Employees whose back pay is curtailed by their delay in filing charges 74 Bednarz and Kahnowski were offered reinstatement on the same day, December 1, 1938, to a job which , in the absence of discrimination, would have been offered to one of them on May 23, 1938 . The back pay for this job will therefore be equally divided between them. 76 One former employee was hired on January 17, 1938, and another on May, 2, 1938, to do work which Godliewski and Kubera had performed prior to the strike. Since Godliewski and Kubera were each thereafter called back to the plant and discriminatorily ,rejected by the respondent on the same day, it is impossible to determine which of them in the absence of discrimination , would have received the job given to the former employee on January 17. We shall therefore divide the back pay for this job equally between them until May 2, 1938, after which date each will receive full back pay. THE CLEVELAND WORSTED MILLS COMPANY 5991 Name Back pay P. H. Flaherty_____________________ 1-24-39 to 8-13-40. Frances Kral______________________ 11-30-38 to 8-19-40. Florence Pietrzak__________________ 1-10-39 until reinstated.76. 10=12=38 to 12.1=38. Katherine Wavrzacz*_______________ = - _ Celia Burke 12-1-38 to 12- 5-38. __ 10-12-38 to 12-1-38 Theresa Sharwark_} 12-1-38 to 12-5-38.77 Helen Lojewski*----- ____________ - - - Kate Wojcik_ ______________________ 12-5-38 to 6-19-39., Joseph , Tomczak*__ ________________ 5-21-40 to 7-24-40. Esther Barnett*_____ 11-3-38 to 1-24-38 (half) and 1-24-38 to Mary Kosmider_ _____ 12-1-38 78 Celia Bogucki 11-15-38 to 11-21-38_ . 7=25-40 until reinstated. Anna Osiecki_} { 11-21-38 to 12-1-38.79 Bertha Janiewzewski_______________ 12-1-38 to 7-31-40. *Employees whose back pay is `curtailed by their delay in filing charges: ve Pietrzak' was reinstated shortly before for during the hearing, the exact date not appearing in the record. 77 Burke and Sharwark were reinstated on the same day, December 5, 1938, to a job which should have been offered to one of them on October 12, 1938. A jqb for both of them was not available until December 1, 1938 Since it is impossible to determine which of the two, in the absence of discrimination, would have been offered the job available on October 8, 1938, we shall divide the back pay equally between them for the period from October 8 to December 1, 1938, but thereafter until December 5, 1938, when both were reinstated, they shall receive full back pay. 7a One former employee wa's hired on January 3, 1938, and another on January 24, 1938, to do work which Barnett and Kosmider had done prior to the strike. Since Barnett, and Kosmider were reinstated on the same day, December 1, 1938, we would, in accordance with our treatment of other cases herein , divide the back pay equally between them for the period from January 3, 1938, and January 24, 1938, and give full back pay to both of them only after January 24, 1938.' In this case, however,,'we shall require the respondent to compensate only Kosmider in that manner, since Barnett by failing to file charges within a reasonable time, has forfeited her right to back pay 71A former employee was hired on November 15, 1938, to do work which Bogucki and Osiecki had performed prior to the strike. Bogucki and Osiecki were called back to work on the same 'day, December 1, 1938 On that date Osiecki was rejected because of an adverse medical report . Bogucki was then, and had been since November 21, 1938, incapacitated for work because. of illness She was recalled and discriminatorily 'rejected on July 25, 1940, after taking a physical examination. Under these circumstances, back pay for the job given to the former employee shall be equally divided between' Bogucki and, Osiecki for the period from November 15 to 21, 1938; Osiecki shall receive full back pay from November 21 to December 1, 1938; and Bogucki shall receive full back pay from July 25, 1940, until reinstated See discussion of their cases supra, Section III G 3 (a).