Cherry Cotton Mills

In the Matter of CHERRY COTTON MILLS and LOCAL No. 1824, UNITED TEXTILE WORKERS OF AMERICA Case No. C-69.-Decided February 21, 1939 Cotton Textile Industry-Interference, Restraint , and Coercion: surveillance of union meetings ; expressed opposition to labor organization ; threats of re- taliatory action; shut-down of plant-Discrimination: closing plant to effect replacement of active union members with new employees ; discharges ; refusal to hire because of union membership-Reinstatement and Offer of Employment Ordered-Back Pay: awarded to discharged employees and to employee refused employment from date of discrimination to date proceeding transferred' to Board and from date of this Decision to date of offer of reinstatement or em- ployment ; monies received by employees for work performed upon Federal, State, county, municipal, or other work-relief projects to be deducted and paid over to agency which supplied funds for said projects. Mr. Walter G. Cooper, Jr., for the Board. Mr. W. H. Mitchell and Mr. Chas. A. Poellnitz, Jr., of Florence, Ala., for the respondent. Mr. Ralph Gay, for the Union. Mr. Lester Asher, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On February 13, 1936, Local No. 1824, United Textile Workers of America, herein called the Union, filed with Charles N. Feidelson, Regional Director for the Tenth Region (Atlanta, Georgia), a charge that Cherry Cotton Mills, Florence, Alabama, herein called the re- spondent, had engaged in and was engaging in unfair labor practices within the meaning of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On February 27, 1936, the National Labor Relations Board, herein called the Board, issued its complaint against the respondent, signed by the Regional Director for the Tenth Region, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. 11 N. L. R. B., No. 44. 478 - CHERRY COTTON MILLS ET AL. 479 With regard to the unfair labor practices, the complaint alleged in substance that the respondent had discharged and thereafter re- fused to employ Alphonse McDonald, Empress Blaylock, Mary Mc- Clure, Ida Robnette, Maude Coker, and Grady Doyle, all employees of the respondent, because they joined and assisted Local No. 1824, United Textile Workers of America, a labor organization, and en- gaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection. Copies of the complaint, the accompanying notice of hearing, and an amended and second amended notice of hearing were duly served on the parties. On March 10, 1936, the respondent filed a motion to• dismiss the complaint, and on March 16, 1936, it,filed a plea to the jurisdiction and in abatement of the proceedings, and also an answer to the complaint. The motion to dismiss was based on allegations, that the National Labor Relations Act does not extend to the rela- tionship between the respondent and its employees, transcends the commerce powers delegated to the Federal Government, and violates the Fifth, Seventh, and Tenth Amendments to the Constitution. The plea in abatement alleged that neither the respondent's business nor its labor relations are in or affect interstate commerce. The answer of the respondent repeated the allegations that the Act is unconsti- tutional and that the respondent's business and operations are not in interstate commerce. In addition, the answer admitted the discharge of some of the persons named in the complaint, but averred that the employment of said persons was terminated for good cause and not for the reasons stated in the complaint. It further alleged that others of those- named., in, the complaint were not discharged,, but, voluntarily quit work. Pursuant to the second amended notice, a hearing was held in Florence, Alabama, on March 23, 24, 25, and 26, 1936, before Noel R. Beddow, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel; the Union by an organizer. Full opportunity to be heard, to examine and cross- examine witnesses, and to produce evidence bearing upon the issues was afforded to all the parties. At the hearing the Trial Examiner denied the motion to dismiss, and also denied the plea to the juris- diction and in abatement of the proceedings. During the course of the hearing, exceptions were taken by the parties to various rulings of the Trial Examiner on objections to the admission of evidence.. The Board has reviewed these rulings of the Trial Examiner and his; rulings on the motion to dismiss and the plea in abatement, and finds that no prejudicial errors were 'committed. The rulings are hereby affirmed. - As evidence in behalf of the respondent, its counsel requested the production of the union membership list for the purpose of showing 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the comparative number of union members employed by the respond- ent at the time of the hearing. The Trial Examiner reserved ruling thereon. It is the established policy of the Board not to compel a union to produce its membership rolls for examination, lest its mem- bers be exposed to possible discrimination by the employer.. Even assuming that members of the Union were being employed by the respondent at the time of the hearing, this entire line of evidence is, under the circumstances here presented, immaterial to the issue of the discriminations against the six prominent members involved in' this case. For these reasons the motion of the respondent for the production of the union membership list is hereby denied. On March 30, 1936, the Board, acting pursuant to Article II, Sec- tion 35, of National Labor Relations Board Rules and Regulations- Series 1, ordered this proceeding to be transferred and continued before it. Counsel for the respondent presented oral argument before the Board at Washington, D. C., on April 9, 1936, and there- after filed with the Board a memorandum commenting on the testimony. On December 30, 1937, the Board issued a Decision and Order in the case. On January 8, 1938, the respondent filed a petition with the Board praying that the Decision and Order be set aside and that the Board authorize a rehearing and the taking of further testimony. On January 29, 1938, the Board ordered that an affidavit of Charles N. Feidelson, subscribed and sworn to on January 24, 1938, be made a part of the record in the case. On January 31, 1938, the Board denied the respondent's petition for rehearing. On March 19, 1938, the Board filed in the United States Circuit Court of Appeals for the Fifth Circuit a petition for the enforcement of its order of December 30, 1937. On May 9, 1938, the respondent filed an answer to the Board's petition for enforcement and, on June 8, 1938, an amended answer. On June 2, 1938, the respondent served .upon the Board interrogatories propounded to the Board and its members. On July 29, 1938, the Circuit Court issued a decision ordering the Board to answer the interrogatories within 20 days. On August 22, 1938, the Circuit Court, upon motion of the Board, stayed its order of July 29, 1938, until further order of the court and dis- missed the Board's petition for enforcement, without prejudice. On August 31, 1938, the Board, having duly notified all the parties, entered its order setting aside its findings and order of December 30, 1937, and directing that such further proceedings be taken in the case as the Board might consider necessary or desirable. On Septem- ber 20, 1938, the Circuit Court denied the respondent's petition for ' Matter of Samson Tire and Rubber Corporation and United Rubber Workers of Amer. ica, Local No. 44, 2 N. L. R B. 148,156. CHERRY COTTON MILLS ET AL. 481 rehearing on the order granting the Board's motion to dismiss its petition for enforcement. On September 23, 1938, pursuant to an order duly made, the Board issued Proposed Findings of Fact, Pro- posed Conclusions of Law, and Proposed Order herein, and granted the parties the right to file exceptions, to request oral argument before the Board, and to request permission to file briefs with the Board. On October 15, 1938, the respondent filed with the Board objections and exceptions to the Board's Proposed Findings of Fact Proposed Conclusions of Law, and Proposed Order, and on November 23, 1938, a brief in support of its objections and exceptions. The parties made no request for oral argument before the Board. The Board has considered the objections and exceptions of the respondent and, except as followed herein, 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, Cherry Cotton Mills, a corporation organized and existing under the laws of the State of Alabama, has its only mill and principal place of business in Florence, Alabama. It is engaged in the business of converting cotton into yarn, and selling and dis- tributing the yarn. During capacity production, the mill employs about 400 workers. Cotton is the principal raw material used in the spinning of the yarn, and the respondent purchases between 40 and 60 bales each week. The major portion of this raw cotton is purchased by the respondent within Alabama, although about 25 per cent of all the cotton used by it is purchased outside the State. Rayon and yarn containing wool are also utilized as raw materials to a small extent, and, together with machinery and parts, oil, and veneer-packing cases, are obtained by the respondent in States other than Alabama. Between 50,000 and 60,000 pounds of the finished cotton yarns are manufactured each week, about 90 per cent, measured both by weight and value, being shipped by railroad and other carriers to pur- chasers outside the State of Alabama. Textile mills in Pennsylvania, Ohio, and Illinois form the principal market for the product of the respondent, and its cotton yarns constitute the raw material for further textile operations such as knitting and weaving. The re- spondent obtains its customers primarily through factors and com- mission merchants having offices in the principal cities of the eastern and middle western textile markets, and the operations in the mill at Florence are generally determined on the basis of orders received. The mill attempts to manufacture its yarns as closely as possible to 482 DECISIONS ^ OF NATIONAL LABOR RELATIONS BOARD the specified shipment dates. In the large majority of shipments, the respondent pays the freight charges to the destination outside the State of Alabama. H. THE ORGANIZATION INVOLVED Local No. 1824, United Textile Workers of America, is a labor organization admitting to membership employees at the respondent's plant, and was organized in or about September 1933. III. THE BACKGROUND OF THE UNFAIR LABOR PRACTICES A. The strike of 1934 On July 17, 1934, the Union, with a membership of about 300, called a strike at the respondent's mill, which later merged into the general textile strike at that time. The Union maintained an active picket line, and the strikers were at all times observed by the plant :supervisors and officials. During the period of the strike, Fred E. Gamble,2 a mill overseer, circulated a petition to determine which of the employees wanted to go back to work, but his testimony concludes, "I went to about three or four, but they cursed so much about it, I didn't go around with it." When the general textile strike ended on September 25, 1934, the respondent did not immediately reopen its mill. After carrying on some discussions with a committee from the Union, the respondent reopened its plant on about October 2, 1934, and the regular em- ployees were all reinstated. B. Surveillance of union meetings The meetings of the Union were held weekly on Saturday after- noon or evening. During the spring and summer of 1935, John Gamble, section man or foreman in the speeder department and brother of the first-floor overseer, made a constant practice of watch- ing the meetings from a filling station almost directly across the street from the union hall. He would arrive shortly before the beginning of the meeting and would remain standing around the filling station, or near the store beneath the meeting hall, for the ,entire 2 or 21/2 hours that the meetings generally lasted, and was usually still there when the union members came out. After having seen him around the gas station during union meet- ings on six or seven occasions, the owner of the premises questioned him and asked him to leave. John Gamble explained that "he was looking up into the hall to see what they were doing. He said that 2 Incorrectly referred to in the complaint as F. E. Gammon. CHERRY COTTON MILLS ET AL. 483 he did not believe in the Union . . ." Despite his orders to leave, the owner of the station ' found Gamble repeating his practice of watching the union attendance and proceedings on several labor meeting days during August and September 1935. Testimony was offered by the respondent in support of its conten- tion that John Gamble had no authority to hire or discharge em- ployees, and was never instructed by his superiors in his activities concerning the Union, and never reported what he had seen to any mill official. The evidence is clear, however, that John, who is a brother of the overseer, Fred Gamble, was considered a section boss over 16 or 18 workers, had the authority to correct bad work, allow days off, and transmit rules from the management. His brother Fred testified, "Well, I never did give him the authority to hire and fire, but I told him time and time again, of course, if a hand didn't do the work right, to lay them off, and he let me know it, and I would pay them up." Dowell Hendon, mill timekeeper at the date of the hearing, but formerly overseer of the top floor, stated that John Gamble talked to him about the Union, and "was all the time talking about this and that, but he didn't make any report to me or anybody else that I know of, in particular, but I never did pay any attention to what he said, no way." Yet an employee of the mill testified that he had been told by Hendon, early in 1935, that "the Union could pull nothing over on him, that he knew everything that happened in the Local in an hour after they adjourned." It is significant that the respondent did not call John Gamble as a witness. We are satisfied that the recommendations of John Gamble with respect to discharge would not have been disregarded. We find that he occupied a supervisory position which so identified him with the respondent as employer that the action taken by him in connection with spying upon the meetings of the Union must be held that of the respondent. C. The threat of a strike in October 1935 In June 1935, production at the mill slumped severely, and in August the second shift was taken off. Several individual members and a committee of the Union spoke to Darby, the superintendent of the plant, about resuming operations of the second shift, and they were told, "Well, go ahead and get on relief . . ." Darby was reported to have said that "when the government and the Union run his business he would shut it down." The discriminatory discharges set forth in the complaint are alleged to have occurred during this period of reduced production 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the summer and fall of 1935. In October , Darby heard rumors that the Union was considering a strike vote because of the dis- charges and the notices received by several union members living in mill houses ordering them to vacate. At about noon on Saturday, October 19, Darby went to the office of Lee Green , mayor of Florence, and requested protection for the plant. The mayor sent a repre- sentative to the union meeting held that afternoon, and the voting of a strike was postponed pending a conference. On the following morning the mayor met with about 20 of the union members, in- cluding Albert K. Cox, State organizer for the United Textile Workers of America, and not an employee of the respondent. At this meeting the mayor called in one of the city commissioners, who was also a member of the board of directors of the respondent. The Union presented its complaints and requested a conference with the mill management. Mayor Green spoke to J. F. Flagg, then vice president, and to the directors of the respondent, and advised them of the desire of the Union to discuss the discharges and notices of dispossession with the plant officials. On October 22, Flagg wrote to the mayor : Pursuant to our investigation this afternoon with reference to a meeting with certain labor groups, the Board of Directors of the Cherry Cotton Mills have given this matter due considera- tion, and, under the existing conditions at the mill, do not feel that the outcome of such a meeting could be of any particular help or benefit. For your information, we were successful, on Saturday of last week, in obtaining a loan from the RFC subject to certain conditions which can only be passed upon by our bank and the stockholders because it entails the mortgaging of our entire plant. Unless these conditions are favorably passed upon, the Cherry Cotton Mills is without funds to continue operations and, therefore, the plant will of necessity be liquidated. I believe, therefore, that you can see a meeting of the nature you have discussed with us is absolutely unnecessary and without merit. At this time the respondent was negotiating for a mortgage on its plant to obtain funds with which to continue operations, and the stockholders were debating whether to approve the proposed loan or to shut the mill down and liquidate all the assets. The manage- ment, therefore, stated that any meeting with the union committee was absolutely unnecessary. The respondent further contends that no representation was ever made that the meeting was desired by its employees, all the requests referring to a conference with Cox and persons outside the ranks of its own workers. The demand CHERRY COTTON MILLS ET AL . 485 for possession of the mill houses was dropped by the respondent for the time being, however, and although the management never met with the Union, no strike vote was taken. D. The shut-down and resumption of operations The stockholders of the respondent remained undecided about the mortgage, and on November 12, 1935, the following bulletin was posted throughout the plant : Notice to All Employees : Due to our inability, up to the present time, to secure sufficient financing for operations, and failure of stockholders to approve proper financing, we find ourselves without sufficient funds to operate the mill, and it becomes necessary, very much to our regret, to close down our Mill indefinitely. All employees are, therefore, released from any employment as the work coming thru runs out, and it will be in order for you to obtain employ- ment in any other direction you may find. On about November 22, 1935, the plant did cease operations for a period of 4 or 5 days, but the first shift resumed work about Novem- ber 28. The stockholders approved the loan soon afterwards, and on about December 6, the second shift was also put back to work. Many old employees were called back to their jobs by the foremen, and during December 1935 many new employees were also added, and even "learners" were taken on for the first time in years. After the resumption of operations, Meda Gandy, a non-union worker who had long been on the first shift, complained to Darby about being called on the second shift, "to give up a day job to a new country hand, like they were bringing in to learn them." The super- intendent told her, "We shut down and started up under entirely different arrangements. We shut down for the purpose of hiring who we pleased. The Union is absolutely not going to run our busi- ness, that is all there is to it." Although Darby took the stand, he did not deny having made this statement. Upon the basis of this statement and upon a consideration of all the evidence in the case, we find that the shut-down was to a large extent based upon a policy of driving out of the mill the active members of the Union and replacing them with new employees. During February 1936, efforts were made to obtain the reinstate- ment of the discharged employees named in the complaint. Darby stated at that time that he had nothing against them, except that "the mill could not work agitators ... who were trying to stir up a strike or something to stop our people from working, or stir up strife among the help or between them ... bringing in outsiders here and trying to stir up trouble." 164275-39-vol xi--32 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Production in the mill picked up rapidly during and after Decem- ber 1935, and in February 1936 over 100,000 pounds of yarn were manufactured, the highest figure in nearly 10 months. The many complaints about the quality of the product, which were made by customers during 1934 and 1935, also ceased; the respondent's own testimony showing, however, that it was due to Darby's being re- lieved of all office duties, the cleaning up and adjusting of the machinery, and the transfer of many foremen and supervisory employees. IV. THE-UNFAIR LABOR PRACTICES None of the actions of the respondent so far discussed are alleged in the complaint to constitute an unfair labor practice within the meaning of the Act. They are important, however, in showing the activities of the respondent's agents and supervisory employees, the attitude of its officials, and the motives underlying the alleged dis- criminations against the six persons named in the complaint.3 Alfonse McDonald. Alfonse McDonald was first employed by the respondent in 1923, when he was 15 years old. Beginning as a sweeper, after about 4 months he became a doffer. In 1926 he quit, and for 7 months worked in a wholesale grocery. He again obtained employment with the respondent late in 1926, and was returned to the job of doffer. After approximately 5 months he was assigned to changing spinning frames from one yarn to another. In about 1928 he was made section man in charge of the spooler room, and also sized yarn and made samples. He was taken from the spooler room in February 1934 and retained the work of sizing yarn and making samples. McDonald was a charter member of Local No. 1824, becoming its vice president at the end of 1933. He was elected president of the Union early in 1934 and retained this office until the summer of 1935, when Grady Doyle became president. McDonald was thus in charge of the 1934 strike and instructed the squads on the picket line. In January 1935, he was discharged. An employee in the mill accused McDonald of having bothered him during working hours and of having asked him to join the Union. McDonald went to the N. R. A. Compliance Board, and, after an investigation, the em- ployee making the charge changed his story, and McDonald was re- instated 2 days after his discharge. Production slumped in February 1935, and McDonald was laid off. After being without work for several weeks, he saw Dowell Hendon, overseer of the top floor, who told him there was not enough work in the mill. When McDon- 3 National Labor Relations Board v. Pacific Greyhound Lines, Inc., 91 F. (2d) 458 (C. C A. 9th) ; National Labor Relations Board v. Pacific Greyhound Lines, Inc.. 303 U. S. 272. CHERRY COTTON MILLS ET AL. 487 ald complained that he was not being treated fairly, Hendon re- torted, "Why don't you hire a lawyer, like you did before, and make us put you back to work?" McDonald then complained to the Textile Labor Relations Board, and through the intervention of its represent- atives he was put back to work in April 1935, as a doffer. He remained as a doffer until August 21, 1935, and then was laid off again. Nothing was said about the quality of his work; he was told that production being slack he was not needed. On September 1 he questioned his section man, T. S. Richey, about work, and was advised "That the mill was running short, and they could not give all.t$em work, andfwhat,was,working was not getting over one or two days a week, and I was the last man that was put on doffing, and he thought it was right to give the older hands the work .. . He told me if they ever started up where they could use me he would send after me." In November, McDonald asked Hendon when he would get his job back, and was told "when they needed me." Mc- Donald further testified : "I went back the 13th day of December, they had hired another doffer and never sent after me. . . . I said, `Mr. Hendon, why are you not working me? ... What is the reason you won't work me, because I belong to the Union?', and he said, `No, not only that, but you don't put out production."' McDonald was never given any further work at the mill. Nowhere does the record disclose any denial of these statements by the respondent's officials. Instead, the contention is made that McDonald's work was not satisfactory, that he was removed as sec- tion man over the spoolers because of his inefficiency, that he talked too much when on the job, that as a doffer he was slow and lazy, and that he violated the rules by repeatedly breaking bobbins. The evidence does support the position that while McDonald was in charge of the spoolers there were many complaints concerning the work put out by that department. McDonald's explanation, how- ever, that he was at the same time also doing the job of making samples and sizing yarn, and that he himself asked to be removed as section man, is not contradicted. Under these circumstances McDonald's poor record as section man early in 1934 does not sub- stantiate the contention of inefficiency made 2 years later. Most of the testimony concerning "talking too much during work- ing hours" refers to the incident which caused McDonald's 2-day discharge in January 1935. His reinstatement after this episode and the later intervention by the Textile Labor-Relations Board to secure his return after a lay-off of 6 weeks, convincingly refute any charges of inattentiveness, talking instead of working, or unsatisfactory work prior to that time. The testimony offered by the respondent with respect to McDonald's alleged inefficiency is unpersuasive and often confused. T. S. Richey, Ogg DECISIONS OF NATIONAL LABOR RELATIONS BOARD section man in charge of the doffers, characterized McDonald as being "the laziest white man I ever worked," unable to keep up with the other doffers, and habitually guilty of breaking bobbins which were later found on the floor near his machine. The respondent called an employee, Fred Ruple, who testified that while McDonald did not talk more than the rest of the hands, he sometimes lagged behind the witness in doffing. The importance which the respondent itself attached to this test of efficiency is best shown by the fact that Ruple was laid off 6 or 8 weeks before McDonald. The testimony of the, overseer, Hendon, disputes the rule concern- ing bobbins which Richey emphasized. Hendon pointed out that "as a general rule .. . if a bobbin is c "racked so it won't run well, it is thrown on the floor." Hendon further testified that only once did McDonald violate company rules by breaking bobbins, and that this instance occurred about 2 or 3 weeks after he started doffing. The lack of sincerity in the respondent's contention that McDonald was slow, inefficient, and a violator of its rules is illustrated by the following passages from the record covering Hendon's examination by counsel for the Board : Q. Do you know why Alfonse McDonald is not now working for the company? A. I don't suppose his service is needed, I don't know. Q. You say you didn't fire him? A. No, I laid him off. Q. Why did you lay him off? A. Until we needed him, work was slack. On December 13, 1935, or possibly prior thereto, the respondent hired new and inexperienced doffers, and at the time of the hearing was employing more men in that department than at the time Mc- Donald was laid off. We find that the true reason for the refusal to reinstate was given by the general manager, Darby, when in ex- plaining why he had termed McDonald an "agitator" he pointed to "the strike we had, and the trouble we had in the mill with him run- ning around . . . He stood out in front of the mill, in front of our office, and prevented our office force and our foremen from coming into the mill, and I think he testified himself, that he had charge of all the crowd there to do such things, and see that such things were done." We find that the respondent refused to reinstate Alfonse McDonald on December 13, 1935, because of his union activities and affiliation. Empress Blaylock. Empress Blaylock was first employed by the respondent in 1928. She worked on the draw frames for 8 years anil for a shorter time on the speeder machines. She was a charter mem- ber of the Union, the second employee to join up, and during 1934 was on the picket line every night. CHERRY COTTON MILLS ET AL. 489 She was laid off on August 10, 1935, when the second shift was shut down. Nothing was said to her about the quality of her work. Her testimony shows that-when she came^back to the mill in October^.and asked for her job, Fred Gamble told her, "You go back home and when your job starts up I will send for you." She never received any word from the mill. The evidence presented by the respondent is designed to show that Empress Blaylock did unsatisfactory work, failed to carry out in- structions, whipped up the ends of her draw frames, and is handi- capped by a crippled right hand, several fingers of which are missing. Fred Gamble testified that when he laid her off in August and when he spoke to her in October, he did not promise that she would have her job back, that he merely told her there was no work for her. He stated that he had complained to her about her work and the whip- ping up of the ends of her draw frames. However, an employee of the same department, called as a witness by the respondent, testified that the only complaint about Empress Blaylock had been made shortly before the strike of 1934, when Gamble had called all the employees together and made a general criticism of the practice of throwing up the ends of the draw frames. No complaint since that time is revealed. Fred Carter, an overseer, declared that Empress Blaylock did satisfactory work when under his supervision a few years before the hearing. The record also discloses that the condition with respect to her right hand had existed since 1918 and was not shown to have affected her work. Cleo Sanderson, a new, inexperienced, and non-union employee about 18 years of age, was put to work on-the draw frames in place of Empress Blaylock, sometime in December 1935, when production was resumed. We find that in failing to reinstate Empress Blaylock the respondent has discriminated against her with respect to hire and tenure of employment, thereby discouraging membership in Local No. 1824. Mary McClure. Mary McClure had been employed by the respond- ent for 11 years, working on the speeders, draw frames, combers, and slubbers. She joined the Union at the time of its organization in September 1933, and a month later was put on the entertainment committee. In December 1933 she was made secretary of the local, and during the spring of 1935 the office of treasurer was added to her duties. At the time of the hearing she was still acting as secretary- treasurer of the Union. She was a leading figure on the picket line of 1934 and had been instrumental in obtaining new members for Local No. 1824. When the entire second -shift was taken off on August 10, 1935, she was laid off with all the others. She spoke to Fred Gamble soon afterward, and he told her he would try to work her as an extra. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The second shift was used for completing a special order on August 27, and . Many: ,McClure - worked-that ° one night; running - comhers: That was the last time she was employed by the respondent. On the next night, Gamble told her there was no work for her, but denies that he told her he would send for her. In the latter part of September 1935 she went to Darby in regard to obtaining work and also in regard to a notice she had received to vacate the mill house. He told her there was no work for her and that it would be necessary for her to vacate the house. Fred Carter also told her in February 1936 that he had no work for her. Yet, when the second shift was reopened, sometime before December 13, 1935, many new and nonunion employees were taken on to operate the speeders and draw frames. The 'respondent introduced ' evidence ^ to show - that •the reason • Mary McClure was not reinstated was because she did not properly clean her machine, and on occasion was rebuked for leaving her work. Fred Gamble testified to this effect, and also stated that after she had worked the one night of August 27, her foreman, "Ed (Stafford) said she could not do the work, and I told her I could not work her any more." All the testimony relating to leaving her machine dirty, however, concerns a period about 2 months after the 1934 strike, during which time Ed Stafford also reported her for going away from her machine and talking to other workers. Stafford testified that he did not remember that he made any complaints about her after December 1934: During the last 8 months she worked for the mill no complaints against her are shown by the record, and Fred Carter testified that she had worked for him in 1933, for over a year, and had-done,good-work. " Darby explained his labeling of Mary McClure as an "agitator" by the fact that she had been "bringing in outsiders here and trying to stir up trouble," and he attributed to her the presence of Albert K. Cox, State organizer of the Union, during the threat of a strike in October 1935. We find that the refusal to reinstate Mary McClure on and after December 13, 1935, was caused by her prominence in the affairs of Local No. 1824. Ida Robbnette. Ida Robnette, an employee of the respondent for 35 years, was 50 years of age at the time of the hearing. For the most part, she worked on the spoolers, but she also had experience on the twisters and winders. She was a charter member of the Union, regularly attended all meetings, and during the strike of 1934 was on the picket line every day and greeted all the officials, as they went into the mill. She testified that she last worked on September 6, 1935, when she was laid off by T. S. Richey and told that she was not needed. On CHERRY COTTON MILLS ET AL. 491 September 9 she returned and asked for work, but was advised that there still was no work and she would be sent for when needed. In November, according to her further testimony, she was astonished when she saw Hendon and Darby about her job and was told by each of them that nothing could be done for her, since she had quit. Although the respondent makes some point of Ida Robnette's talk- ativeness, the fundamental reason given for the refusal to reinstate her is that she had voluntarily quit her job. When told on Septem- ber 9 that there was no work for her, she said to both Richey and Hendon, "I think I will just quit and go up to Huntsville and get me a job." The record clearly discloses the truth of both contentions presented by the respondent. It may be conceded that Ida Robnette was a very talkative worker. Such a characterization, however, can have little' importance' in the face-of a record, of, employment for, 35 years, and cannot overbalance testimony that she did excellent work and was used for jobs of unusual difficulty. As to the assertion that she voluntarily resigned, the record also supports this conclusion. She told many of her neighbors and coworkers that she had quit and was going to Huntsville to look for a new job. She did not leave Florence, however. She stayed on in the house which the mill owned, expecting to be called back to work. When she received a notice to vacate her house during November 1935, she talked to Darby and pleaded with him to put her back to work. Certainly at that time she was making application for employment and clearing up any uncertainty as to her intentions. The answer made to her by the respondent that nothing could be done, that she should not have quit, was a deliberate attempt to ignore her request for employment. Yet the, record. shows,, beyond., a doubt- that early in December 1935, many inexperienced hands were called in from outside the mill neighborhood and put to work in the spooling and twisting departments. The record also discloses that the mill officials vividly recalled Ida Robnette's activity and talkativeness on the picket line in 1934. When asked about her part in the strike, Darby stated, "She was agitating something. I could not say she was active. She was out there sitting in' a chair in front of the mill for probably two months, or three months of the strike." Ida Robnette applied for work at the mill in November 1935, and was thereafter known by the respondent to desire employment. De- spite this fact, the respondent refused to employ her and on or before December 13, 1935, hired new employees to do work similar to that which she had been doing for 35 years. We find that the respondent refused employment to Ida Robnette because she was a leading figure in the activities of the Union. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Maude Coker. Maude Coker was first employed by the respondent in 1904, but later also worked for other cotton mills in the vicinity. From 1933 on she had worked for the respondent, generally as a spinner. She joined the local about 2 weeks after it was organized, took an active part in the strike and picketing in 1934, and regularly attended all union meetings. On November 15, 1935, she was laid off by T. S. Richey, who stated that the mill was going to shut down. The mill did shut down luring the.following week, but after about 6 days the first shift was put back on, and early in December the second shift was also rein- stated. Maude Coker's testimony indicates that she was told that she would be called back when work started, and since the mill never sent for her, she did not return to the plant after November 15. At the hearing the respondent's attorney and general manager both stated that she was a very good employee and would be given her job at any time she applied and there was work available. No ex- planation was offered for the failure to follow the general commu- nity practice of calling the employees back to work, except the sug- gestion that the shut-down notices which were posted throughout the mill on November 12, 1935, terminated all employments. As stated, above, the record shows, however, that after that date many em- ployees were called back to work by the foremen, and the entire back- ground of the labor activities of the respondent indicates that the cessation of operations was in a large measure designed to carry out the purpose of forcing the active elements of the Union out of the mill and putting inexperienced workers in their places. The officials of the respondent admitted that new employees were taken on in December 1935; even "learners" were added for the first time in many years. We find that the respondent failed to recall Maude Coker during December 1935, and thus refused to reinstate her because of her union activities and affiliation. Grady Doyle. Grady Doyle was first employed by the respondent in 1928, working for the greater portion of the time on a machine in the picker room, but also running draw frames in the drawing department and operating the waste machinery for shorter periods. He joined Local No. 1824 when it was first organized, became a dele- gate to the Central Labor Body in May 1935, and was the president of the Union from about August 1935, up to a few days before the hearing. He was active during the 1934 strike, being on the picket line every day, and was generally influential in obtaining new members for the local. About June 27, 1935, he told his foreman, Fred Gamble, that since he was only working a few days each week he was not making a living for his family and would like to get off his job and go on CHERRY COTTON MILLS ET AL. t 493 relief. According to Doyle's testimony, Gamble told him "it would be perfectly all right," and that- his job would be ready for him when he got ready to come back. The foreman denied that he had ever promised Doyle that he would have a job waiting for him, but did admit that he had granted the permission to lay off and permit him to go on relief. Doyle came back for his job on about October 1, 1935. He testified that Gamble first spoke to him about a union member not being a religious man, reminded him of "last summer when you carried clubs down here and kept me out of the mill," asked him if he had been carrying a petition around protesting against working 10 hours a day at the mill, and then concluded, "I don't guess you ever will go back to work or ever will have any more job. He said he heard all I done was talk unionism on the street and on my job, and that that was the reason I didn't have no job at that time." Gamble contradicted this testimony and admitted only that he told Doyle there would be no job for him. Within, a short time afterward, Doyle also saw Darby and asked to have his, job back. He was told that the mill was running slack and that there was nothing for him at that time. In January 1936 he spoke to Fred Carter, foreman during the illness of Fred Gamble, and was told that there still was no work, but that Carter would do all he could for him. Since June 27, 1935, Doyle has never been taken back to work by the respondent. The management of the mill contends that Doyle was not efficient, that he made adjustments of the machinery contrary to the plant rules, and that his supervisors frequently warned him about his work and practice of tinkering with the machinery. In his testimony Doyle disclosed, as the only complaint against him, that about April 1935 an efficiency man, who. had been at the mill a short time, objected because he adjusted a finishing machine in the picker department for the change to a. different size of cotton. Doyle testified that no fixer was available, and that Fred Carter later told him that the efficiency man had nothing to do with pro- duction, and if no fixer could be located, Doyle could get a wrench and adjust the machines. Carter did not recall having any such con- versation concerning the machinery. The refusal to reinstate Doyle is based upon this incident with the efficiency man, together with the charge made by Fred Gamble that on the last day that Doyle worked he again violated the rules and moved the evener on his machine, causing all the finished laps to run far too heavy. Gamble testified that "the morning he quit he done all his dirty work, there in the morning, and I didn't find 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out until I had Donald Lindsey and Paul Poague up, and was about to let them go. I thought they done it, but they said it was him." Lindsey and Poague, workers in the picker room on the second shift, placed the incident as having occurred sometime within a pe- riod commencing ' about 3 months vafter the--strike. and- March. L935. Both testified that when Gamble complained about the heavy laps they told him it was not their work. They testified that they did not say anything about Doyle; that they did not know who made the laps; and that Lindsey was not even working on Doyle's machine. It is clear from the record that the charges of inefficiency and violation of the rules concerning the handling of the machinery were deliberately fabricated by the respondent after Doyle had been allowed to go on relief. Even after he requested the return of his job he was never advised of the complaints against him. He was told,that*there,was no work-for him; that the mill was running slack. The attitude of the respondent's supervisory officials toward Doyle and the other employees involved in this case is clearly shown by the testimony of Fred Gamble concerning the mill production. Gamble testified that Darby complained to him about the quality of the yarn every day "up until I got shed of this bunch. After I got shed of that, it was going all right ..." The record does not indicate that any new employees were added to the picking-department force after the respondent resumed opera- tions in December 1935. However, some employees with less experi- ence than Doyle were recalled for work on the pickers. Donald Lindsey was first taken on by the respondent as an employee just a few months before Doyle voluntarily laid off in June 1935. He was assigned to the second shift in the picking department, but in October 1935 was moved to the first shift and was not at once re- placed on the second shift. Ed Lindsey, who was on the first shift and also went, off in -June to go on relief, was called-back by Fred Carter at the beginning of February 1936 and placed on the picking- room second shift. Ed Lindsey has not been employed by the re- spondent as long as has Doyle. In addition, workers entirely new to the pay roll of the respondent have been added to the drawing- room staff, although Doyle is familiar with this work. These circumstances, when viewed in the light of the history of the respondent's relations with its workers, make it evident that the accusations that Doyle violated the rules and was inefficient are merely to camouflage a discharge designed to remove from among its employees the president and one of the active members of the Union. By reason of his seniority, Doyle should have been rein- stated on February 3, 1936, at the time Ed Lindsey was called back to work. CHERRY COTTON MILLS ET AL. 495 We find that the respondent failed to reinstate McDonald, Blay- lock, McClure, Coker, and Doyle because of their union activities and affiliation. Although we find that Ida Robnette voluntarily left the respondent's employ, the refusal to accept her application for employment and to offer her a position was based upon her union activity and constituted an unfair labor practice by the respondent. In accordance with the foregoing findings of fact, the Board con- cludes that by refusing reinstatement to Alfonse McDonald, Empress Blaylock, Mary McClure, Maude Coker, and Grady Doyle, and by refusing employment to Ida Robnette, the respondent has discrim- inated against its employees and applicants for employment with respect to hire and tenure of employment, thereby discouraging mem- bership in Local No. 1824, United Textile Workers of America, and interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. We further find that at the time of the hearing in this proceeding none of these six individuals had obtained regular and substantially equivalent employment. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section IV above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. VI. THE REMEDY In addition to an order to cease and desist from its unfair labor practices, we, shall, affirmatively require the respondent to offer rein- statement and present employment to the six persons named in the complaint, against all of whom we have found discrimination. Each ,of the persons named in the complaint is also entitled to back pay from the date of the discrimination against him, less his net earnings 4 during said period. We have already indicated above that the dates • 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 unlawful discrimination against him and the consequent necessity of his seeking employment else- where. See Matter of Crossett Lumber Company and Unated Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local i590, 8 N. L R. B 440. Monies received for work performed upon Federal, State, county, municipal, or other work- relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county , municipal , or other government or governments which supplied the funds for said work -relief projects. 496 DECISIONS. OF NATIONAL -LABOR RELATIONS BOARD of the discriminatory acts are clearly established by the evidence to be December 13, 1935, in the case of Alfonse McDonald, and February 3, 1936, in the case of Grady Doyle. As to the remaining individuals named in the complaint, the record does not specify the exact date of the discriminatory acts, but the testimony, does establish that new employees were taken on to do the work of these particular persons early in December 1935, and that the second shift started December 5. The date of December 13, on which day a new man was hired to take the place of McDonald, is later than the time set by the cor- roborating testimony, and we shall find that the discriminatory acts against all the persons named in the complaint, with the exception of Grady Doyle, occurred on December 13, 1935. This proceeding was transferred to and continued before the Board on March 30, 1936, and no Intermediate Report has been filed by the Trial Examiner. While in the normal case we should order tike payment of back pay from the date of the discrimination to the date of the offer' of reinstatement or employment, in this case, be- cause of the long delay after its transfer to the Board, we shall not require payment between the date of such transfer and the date of this decision. In each instance, therefore, back pay will be ordered from the date of the discriminatory act to March 30, 1936, and from the date of this decision to the time of such offer of reinstatement or employment, less net earnings during said periods. 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. Local No. 1824, United Textile Workers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Alfonse McDonald, Empress Blaylock, Mary McClure, Ida Robnette, Maude Coker, and Grady Doyle, thereby discouraging membership in the labor organization known as Local No. 1824, United Textile Workers of America, the respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within. the,meaning of Sections (1), of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. CHERRY COTTON MILLS ET AL. ORDER 497 Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, Cherry Cotton Mills, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Local No. 1824, United Textile Workers of America, or any other labor organization of its em- ployees, by discriminating in regard to hire or tenure of-employment or any term or condition of employment because of membership in or activity in behalf of Local No. 1824, United Textile Workers of America, or any other labor organization; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Alfonse McDonald, Empress Blaylock, Mary McClure, Maude Coker, and Grady Doyle immediate and full reinstatement to their former positions without prejudice to their seniority and other rights and privileges; (b) Offer present employment to Ida Robnette, comparable as to wages, general duties, and general conditions of employment with the position formerly held by her; (c) Make whole Alfonse McDonald, Empress Blaylock, Mary Mc- Clure, and Maude Coker for any loss of pay they have suffered by reason of the respondent's refusal to reinstate them, and Ida Robnette for any loss of pay she has suffered by reason of the respondent's discrimination in regard to her hire, by payment to each of them, respectively, of a sum of money equal to that which each would normally have earned as wages during the periods from December 13, 1935, the date of the discriminatory acts, to March '30, 1936, and from the date of this decision to the time of such offer of reinstate- ment or employment, less his or her net earnings, if any, during said periods ; deducting, however, from the amount otherwise due to each of the said employees, monies received by said employee during said period for work performed upon Federal, State, county, municipal or other work-relief projects, and pay over the amount, so deducted, 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the appropriate fiscal agency of the Federal, State, county, mu- nicipal, or other government or governments which supplied the funds for said work-relief projects; (d) Make whole Grady Doyle for any loss of pay he has suffered by reason of the respondent's refusal to reinstate him, by payment to him of a sum of money equal to that which he would normally have earned as wages during the periods from February 3, 1936, the date of the discriminatory act, to March 30, 1936, and from the date of this decision to the time of such offer of reinstatement, less his net earnings, if any, during said periods; deducting, however, from the amount otherwise due him, monies received by him during said period for work performed upon :Federal,' State,,, county, municipal or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, mu- nicipal, or other government or governments which supplied the funds for said work-relief projects; (e) Immediately post notices to its employees in conspicuous places throughout its mill in Florence, Alabama, stating that the re- spondent will cease and desist in the manner aforesaid, and keep such notices posted until at least sixty (60) days after the date of posting ; (f)' Notify the Regional Director' for the Tenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.