Asheville Hosiery Co.

11 In the Matter of ASHEVILLE HOSIERY COMPANY and AMERICAN FEDER- ATION OF HOSIERY WORKERS Case No. C-792.-Decided March 29, 1939 Hosiery Industry-Interference, Restraint, and Coercion : anti-union state- ments ; threat of shut-down in event of successful organization ; permitting ejection of union employees by non-union employees ; praising conduct of oust- ing employees ; employer ordered to cease such practices-Discrimination: dis- charge for union activity ; refusal to grant protection at work to union em- ployees-Reinstatement Ordered : of discharged and ejected employees-Back Pay: awarded to discharged and ejected employees-Remedy: respondent ordered to assure employees that plant will not shut down, instruct employees that violence in the plant will not be permitted , and take effective action to enforce instructions. Mr. Jacob Blum and Mr. Herbert 0. Eby, for the Board. Harkins, Van Winkle and Walton, by Mr. Thomas J. Harkins and Mr. Kester Walton, of Asheville, N. C., for the respondent. Mr. Daivid Rein, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by American Fed- eration of Hosiery Workers, herein called the Union, the National Labor Relations Board, herein called the Board, by Bennet F. Schauf- fler, Regional Director for the Fifth Region (Baltimore, Maryland), issued its complaint dated January 4, 1938, against Asheville Hosiery Company, Asheville, North Carolina, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The com- plaint alleged in substance that the respondent had discharged George Baxter and had driven from the plant Lloyd Brookshire, Wayne Jones, Charles Lissenbee,' F. A. Silvers, Ed Taylor, Jack Pinkston, i This name occasionally appears in the record as Lisenhee. 11 N. L. R. B., No. 122. 164275-39-vol. xi-87 1365 1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clyde Shaft, Clifton Nuckels, Maude King, Bonnie Silvers, and Lucy Silvers for the reason that each of them joined and assisted the Union, and had thereafter refused to reinstate them ; and that the respond- ent had caused and permitted to be circulated in its plant a petition discouraging membership in the Union, and that, by said act and by other acts intimidating and coercing its employees in an attempt to prevent them from joining a labor organization of their own choosing, the respondent had interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed to them in Section 7 of the Act. A copy of the complaint, accompanied by a notice of hearing, was duly served upon the respondent and the Union. On January 10, 1938, the respondent filed an answer to the complaint denying that it was engaged in interstate commerce and that it had committed the unfair labor practices alleged in the complaint. On January 11, 1938, an additional charge having been duly filed, the complaint was amended to include an allegation of violation of the Act through the exclusion of Howard Jarrett 2 and the refusal to reinstate him because of his membership in and affiliation with the Union. An amendment to the answer filed by the respondent denied this allegation. On January 6, 1938, the Regional Director issued an order post- poning the hearing. A copy of said order was duly served upon the respondent and the Union. Pursuant to the order of postponement, a hearing was held at Asheville, North Carolina, from January 11 through January 22, 1938, before William H. Griffin, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues was afforded all parties. At the hearing, on motion of counsel for the Board, the complaint was dismissed as to Wayne Jones and Charles Lissenbee. At the close of the Board's case a motion by counsel for the Board to amend the complaint to conform to the proof in the case was granted by the Trial Examiner. During the course of the hearing the Trial Examiner made numerous other rulings on motions and on objections to the admission of evi- dence. The Board has reviewed these rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On July 12, 1938, the Trial Examiner filed his Intermediate Report in which he found that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act, 2 It appears from the record that Howard Jarrett's full name is William Howard Jarrett. i ASHEVILLE HOSIERY COMPANY ET AL. 1367 and recommended that the respondent cease and desist therefrom and take certain specified affirmative action to effectuate the policies of the Act. Exceptions to the Intermediate Report were thereafter filed by the respondent. On November 1, 1938, oral argument was held thereon before the Board, and a brief was submitted by the respond- ent. The Board has reviewed the exceptions and the brief filed by the respondent and finds the exceptions to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Asheville Hosiery Company is a Delaware corporation engaged in the manufacture of hosiery at Asheville, North Carolina. The raw materials used by the respondent in the manufacture of hosiery are silk, cotton, dyestuffs, and other chemicals. The chief raw material is silk, 80 per cent of which is purchased by the respondent from a firm in Chicago, Illinois. Other necessary materials such as coal and machinery and machinery parts are purchased outside the State of North Carolina and shipped to the respondent's plant. About 95 per cent of the products manufactured by the respondent are sold outside of North Carolina, principally through a brokerage house in New York City. The respondent manufactures an average of 2,700 dozen hose a week and the total value of its products in the year 1937 was $750,000. The respondent employs approximately 220 employees. II. THE ORGANIZATION INVOLVED American Federation of Hosiery Workers is a labor organization affiliated with the Textile Workers Organizing Committee, which is in turn affiliated with the Congress of Industrial Organizations. It admits to membership employees of the respondent. III. THE-UNFAIR LABOR PRACTICES A. The relationship between the respondent and its employees The respondent, Asheville Hosiery Company, is a personally owned corporation. Ninety-nine per cent of the common stock of the re- spondent is owned by Theo. Y. Rodgers. The remaining 1 per cent is divided between John T. Rodgers, son of Theo. and general man- ager of the plant, and a Mr. Bell, an attorney. The relationship be- tween the Rodgerses and the employees of the respondent is strongly paternalistic. The owners have exhibited a considerable interest in the personal affairs of the employees and their families, an interest 1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which has led the employees to turn constantly to them both for financial assistance and for advice. This relationship strongly colored the attitude of the Rodgerses toward unionization among the employees . Moreover, in his pre- vious business experience, Theo. Rodgers had had what John Rodgers described as an "unpleasant incident " with a union, which had resulted for him in a feeling of hostility toward all labor organiza- tions. This sentiment, if not shared by John Rodgers , had, in any event, been imparted to him as a basis of policy in the management of the plant. Because of the strong personal relationship existing between the Rodgerses and the employees, the Rodgerses regarded any step by them toward unionization as a direct affront. This attitude is best illustrated by the following excerpt from the testimony of John Rodgers : Q. Was it your thought that before any employee of yours joined a labor union or engaged in any union activity , that be- cause of your close relations with your employees that such em- ployees should just have come to you and talked with you about any complaint, if any, that they had before engaging in such activity? A. I don't think he should have come to me and told me if he joined a labor union or not, but I did think maybe it came about from a little dissatisfaction of some nature and that was the nature of forming an organization . I would think surely if they had a complaint that they would have come to me and told me what it was and if it was anything about their work that was unpleasant or unfair I felt it could be adjusted. Q. Do I correctly state the sequence of your testimony in this way, that you had very close and friendly relations with your employees, that is, first? A. Yes, sir. Q. And if any of your employees elected to join a labor union that was indicative of the fact that they may have had a com- plaint of some sort against the company, is that correct? A. I believed that the formation of an organization is usually the outgrowth of dissatisfaction . That is my belief. Q. And therefore, if they had such complaint to induce them to sign membership cards in a labor organization on account of your friendly relations they should have talked to you about the complaint and not the labor organization? A. I would have. ASHEVILLE HOSIERY COMPANY ET AL. 1369 Q. And because they had first joined a labor union before speaking about any complaint you felt very disappointed in the first instance, or angry, is that correct? A. Yes, sir, I was surprised. That this view was shared by many employees of the respondent is revealed in testimony by some of them that they abandoned their membership in the Union because they feared that Rodgers might be displeased if he learned of such membership." Similar findings by the Trial Examiner in his Intermediate Report as to the paternalistic relationship existing between the Rodgerses and the employees evoked the contention from the respondent that such conduct could not justly be rebuked. However, it should be clear that we make such findings with respect to this relationship, not with a view toward censure, but rather as an aid in evaluating the conduct of the respondent, and in determining whether such conduct was in violation of the Act, as charged. B. The discharge of George Baxter George Baxter was employed as a legger for the respondent. At the time of his discharge, he had been in the respondent's employ for approximately 4 years. In late October or early November 1937 Baxter, on a visit to Greensboro, North Carolina, called at the office of the Union in that city. Subsequently, upon his return to Asheville, Baxter com- menced the organization of the employees of the respondent into the Union, cooperating with Floyd Stanton, organizer for the Union, who at Baxter's suggestion had come to Asheville for this purpose. A week of union activity culminated on November 21 with the ten- tative organization of a local comprising the employees of the re- spondent and the election of a committee to "be in full charge" until permanent officers were chosen. On the next day, Monday, November 22, Baxter was discharged by John Rodgers. At the time of his discharge, Baxter accused Rodgers of discharg- ing him because of union activities. Rodgers denied the accusation, but, according to Baxter's testimony, stated, "George this is like a bad finger on a hand, if it affects the whole hand, you have got to take it off." This statement was not specifically denied by Rodgers 3 An example of this appears in the testimony of Sara Gregg, one of the employees, who testified as follows : "I did not want the mill to go union, and I did not want the union in our plant because Mr . Rodgers had been too nice , too nice for us to do anything that he might not approve of." Mary Duckett tore up her union card after she had spoken to her mother and "she said she did not think it was the thing . She said that Mr. Rodgers had treated us all fairly nice . She did not think we ought to go against him in that way." 1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and we find Baxter's testimony on this point to be true. Clyde Shaft testified that Rodgers, on leaving Baxter's machine after having discharged him, stopped by the machine of Clyde Shaft, who had joined the Union during the past week, and told him that Baxter had just been discharged. Rodgers warned Shaft that he was keeping bad company, and told him to behave himself. Rodgers admitted this testimony to be true. The union committee, which had been selected the previous eve- ning, immediately called upon Rodgers in his office to protest the discharge of Baxter. Rodgers maintained that Baxter had not been discharged for union activities but rather for bad work. However, when Ed Taylor, one of the members of the committee, became par- ticularly insistent, Rodgers told him to watch out or he would be discharged for bad work also. The following day, Rodgers apolo- gized to Taylor for that statement and told him he did not under- stand how he had become mixed up in the matter. The respondent contends that the discharge of Baxter was due entirely to his bad work, and was in no way caused by his activities in the Union. At the hearing it introduced records comparing the work of Baxter with that of seven other employees. These records show clearly that Baxter was the poorest of the eight and had been for some time. Other figures show Baxter to have made the poorest record of all the leggers for the week preceding his discharge. In addition, considerable testimony was introduced to show that Baxter was negligent and careless in his work and had been guilty of mis- conduct of various kinds, including gambling and drinking. Despite this evidence of Baxter's bad work we do not believe that this was the motivating cause for his discharge. About 6 months prior to his discharge, Baxter had been transferred to a better machine which operated more rapidly and thus increased his earnings on a piece-rate basis. Rodgers denied that this transfer to a better machine was in recognition of good work, but it was admitted that this was the usual method of promotion for knitters. The records of work over a period of time compare Baxter's work with only seven other selected employees and there is no showing that Baxter's work per- formance was poor as compared to that of all the employees in the plant. Indeed, Rodgers admitted on cross-examination that Baxter produced the minimum amount of stockings that he expected from his employees. The testimony as to Baxter's conduct during the per- formance of his work is exaggerated to the point of incredibility and much of it is trivial in nature.4 Moreover, on cross-examination, 4 Examples of the evidence to show misconduct such as drinking and gambling on the part of Baxter may be seen in testimony quoting Baxter to the effect that he drank a gallon of liquor a day and could make more money playing poker than working on his machine. ASHEVILLE HOSIERY COMPANY ET AL. 1371 many of these witnesses who testified to Baxter's negligent conduct admitted that what they said about Baxter might very well apply to most of the other employees in the plant.5 There is considerable evidence to show that Rodgers on November 22 knew of Baxter's union activities. Baxter testified that Brewer, the foreman for the respondent, in discussing Baxter's case with him told him that Rodgers had known of his trip to Greensboro at the time of Baxter's discharge. Brewer testified that he had stated only that Rodgers had learned of this trip since the discharge. The whole nature and tenor of the discussion between them leads us to believe that Baxter's version of this incident is the true one. Ed Taylor testified that on Tuesday, November 23, Rodgers, in speaking to a number of employees, stated that he had never been so surprised as when he had learned on Sunday, November 21, that a union was being formed in the plant. Rodgers and others testified that he had referred to "Monday" as the date of his learning about union organization at the plant. Some of this latter testimony, how- ever, is indefinite ,6 and, moreover, it is somewhat unnatural to refer to the preceding day as "Monday" rather than as "yesterday." The relationship existing between Rodgers and the employees makes it highly probable that attempts at organization would be reported to Rodgers. These factors, considered in the light of other evidence, such as Rodgers' statement to Baxter and his conversation with Shaft at the time of the discharge, lead us to accept Taylor's testimony as correct. There is further testimony that Brewer, subsequent to the discharge of Baxter, in attempting to dissuade other employees from joining the Union, pointed to Baxter as an example of what would happen if one did join the Union. Brewer did not deny this testimony and we find it to be true. The evidence shows, therefore, that Baxter, the employee most active in organizing the Union, was discharged just as union organ- ization was' making headway, and that Rodgers had knowledge of these union activities. These facts, in the light of Rodgers' stated hostility toward unions, lead us to conclude that Baxter was dis- charged because of his union activities. The subsequent activities of the respondent which are dealt with below tend to corroborate this conclusion. 8 There was considerable testimony that Baxter was rarely at his machine . On cross- examination it was developed that other employees also left their machine frequently, and with respect to one or two , who had not been discharged , their negligence had caused a smash-up on their machine , a mishap that had not befallen Baxter. Similarly, although one of the types of misconduct of which Baxter was allegedly guilty was speed- ing up his machine, Baxter had never been disciplined for such conduct, although at least two other employees had been so disciplined. 6 John Lee, who was called to testify by the respondent, on being asked what Rodgers had said with respect to the date on which he learned about the Union, stated: "I am not sure about that, unless he said about Monday." 1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent discriminated in the discharge of George Baxter because of union activities, thereby discouraging mem- bership in the Union. C. The ousters on December 1 and 2 The discharge of Baxter precipitated considerable confusion among his fellow employees. It caused both resentment and fear. Anger at the discharge produced proposals for a, strike, but these suggestions were apparently heavily outweighed by fear as to what the discharge of Baxter portended for the other union members. On Tuesday, November 23, John T. Rodgers spoke to the employees in assembly, in order, according to his own testimony, to dispel the confusion. He spoke about business conditions generally, saying that they were bad and that orders were dropping off. He pointed out to Ed Taylor that modern equipment in the plant had resulted in in- creased earnings for Taylor and for other employees. He stated that they had a perfect right to join a labor organization, but suggested that they think it over and not do anything hastily. He then inti- mated that his father disliked unions, and that there was a possibility that on his return he might shut the plant down when he learned about "this trouble." 7 This speech of Rodgers was followed the next day by a speech by Brewer, also allegedly in an attempt to quiet the continued unrest among the employees. Brewer, in the same vein as the speech by Rodgers, emphasized that business was bad and com- petition keen. He pointed out also that new equipment in the plant had resulted in increased earnings for the employees, and told about antiquated equipment in Philadelphia. Brewer, in his testimony, denied, however, that he had in this speech, as testified by Taylor, blamed the unsatisfactory conditions in Philadelphia upon the success of union activities in that city. It is obvious, however, that Brewer's speech had meaning for the employees only in relation to the setting in which it was made. It came upon the heels of a period of union organization and the discharge of the leading union member. As such, it could be understood only as a reiteration of Rodgers' covert threat to shut the plant down. Concurrently with these speeches, coal and empty silk spools were removed from the plant late at night. This added to the belief held by many of the employees that the plant was about to shut down because of the attempt to organize the employees into the Union. Although the explanation given by the respondent for the removal of 4 Ed Taylor's version of this speech is considerably more damaging to the respondent. We have set forth, however, only those portions of the speech as to which the testimony of Rodgers and Taylor are in accord. ASHEVILLE HOSIERY COMPANY ET AL. 1373 the coal and silk spools may be satisfactory, Rodgers admitted that he knew of the impression it had caused among the employees,. but despite that, did nothing to allay that impression or assure the em- ployees that the plant was not on the point of shutting down. The belief that the plant was about to close was followed by the desertion of the Union by many of its members and their organiza- tion into an anti-union faction. These men became convinced that unless all union activity was stopped the plant would close and they would lose their jobs. They resolved, therefore, to oust the more mili- tant union members from the plant and to circulate a petition which would assure Rodgers that the employees were opposed to the Union. These plans were then put into effect. A petition declaring the intention of the signatories not to work with any member of the C. I. 0.8 was circulated in a manner which, on the testimony in the record, can only be characterized as mysterious. And on December 1, led by Howard Ledford, who worked in the boarding department, the anti-union faction drove Lloyd Brookshire, Wayne Jones, Charles Lissenbee, F. A. Silvers, Ed Taylor, Jack Pinkston, Clyde Shaft, and Clifton Nuckels from the plant. Brewer was present while this was going on, but made no move to prevent the occurrence or warn the attacking group of the consequences of their conduct. Indeed, no disciplinary action was ever taken either then or thereafter against any of the employees who participated. This was followed on December 2 by the ejection from the looping and seaming room of Maude King, Bonnie Silvers, and Lucy Silvers by the women in that room. John Lee, watchman for the respond- ent, witnessed and to some extent participated in this event. The leaders in this action stated that they had determined upon this course in emulation of the action of the men the preceding day. Thereafter, the ousted employees called upon Rodgers in groups and asked him to guarantee them protection so that they could return to work. Rodgers replied that that was more than he could possibly do, but that he would speak to the men and endeavor to persuade them to permit the union employees to return. An attempt by one of the latter to return at this time proved unsuccessful, as he was barred from his machine by the anti-union faction. On December 7 Rodgers addressed the employees in the plant and asked them to be lenient with the union employees since it was so close to Christmas. In the course of his address he praised the employees for the fine spirit of loyalty they had shown to him but asked them 8 The heading on the petition reads as follows : "IVe, the undersigned, do hereby agree, not to work with any member of the C. I. 0. or any outside organization and will stick together in keeping same out of the Asheville Hosiery Co." 1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to relent in their attitude toward the union members. The ousted employees thereafter returned to work between December 8 and 13.9 D. The exclusion on December 09 The return to work, however, did not mark a cessation of the hostility and tension in the plant, nor a termination of efforts by the more militant union members to organize the plant. The union members were ostracized to a point where the other employees in the mill, in violation of a company regulation, refused to assist them in their work. This tension led to one or two minor altercations in which Ed Taylor, the most militant of the union members, figured prominently. Taylor was threatened with bodily harm on a number of occasions and for self-protection he acquired a small tear-gas pencil and carried it with him on his person. On December 29 he came to work with this pencil on his person. Its presence was noticed by one of the employees and reported to the foreman and to many of the other employees in the plant. Taylor was ordered by John Rodgers to leave the pencil outside the plant, and he complied with this order. At the end of the day's work he left with Jack Pinkston, F. A. Silvers, and Howard Jarrett. They were seated in Howard Jarrett's car about to drive home when a number of the men from the plant came up and surrounded the car. There were many threats to drag them from the car and beat them up, and apparently violence was averted only by the intercession of Bonnie Silvers. The four men were permitted to go home but were threatened with violence if they returned to work. Although Brewer, who was present at the time of the incident, denied that he had noticed anything more than a group of men going home at closing time, Rodgers testified that Brewer informed him of the incident. We find that Brewer had knowledge of the event and informed Rodgers thereof. The four men did not return to work but a few days later came to the office for their pay. Rodgers asked them if they had quit and they replied "no" and left. Rodgers did not ask further after them but left their places open for a week or so and then filled them with other employees. E. Conclusions with respect to the oustinags and excZv,sion The respondent contends that it took no part in the oustings and exclusion and that these actions were entirely those of its employees, who were infuriated by the tactics and threats of the union members. 8 Lloyd Brookshire, Fulton Silvers , Jack Pinkston, Ed Taylor, Clifton Nuckels, Wayne Jones, and Charles Lissenbee returned to work on December 8. Clyde Shaft returned on December 9, Bonnie and Lucy Silvers returned to work on December 10, and Maude King on December 13. ASHEVILLE HOSIERY COMPANY ET AL. 1375 It contends further that, when the four excluded employees failed to return to work after the incident of December 29, they never reported the incident or their reasons for leaving, and thus left the employ of the respondent of their own volition. These contentions, however, are not borne out by the evidence. We have found that the discharge of Baxter was due to his union activities and was intended to discourage membership in the Union. This action, followed by the speeches by Rodgers and Brewer, had the desired effect. Together, they caused the desertion of the Union by many of its members, the circulation of an anti-union petition, and the ousting of the more active union members. Rodgers created among the employees the impression that the plant would close down if the Union were successful in organizing the employees in the plant. 'Knowing that this impression prevailed, he did nothing to attempt to dispel it. It is clear, therefore, that he wished it to be spread and to be the guiding impulse in the actions of the employees. The testimony by the anti-union employees as to their reasons for ousting union members cannot be given credence. They testified that threats had been made that if the Union organized the plant it would cause the expulsion of all non-union men. They therefore .left the Union, although membership would apparently have guaranteed them protection in the event of its successful organization, and decided to get rid of the union men, although it was clear that so long as the union men were in the minority they could not have succeeded in bring- ing about expulsion of the non-union men. A number of the employees who had participated in the ousting, had not only been members of the Union, but had been active in the solicitation of others. In the course of this solicitation, they had apparently made the statements which were the purported reasons for their own leaving the Union. This confusing and illogical explanation for the oustings of December 1 and 2, which the respondent proffered in its brief, is obviously in- valid. We find that the motivation for the ousters was in fact the speeches and actions of the respondent, which created the belief among the employees that the plant would be closed unless union activity were . stopped. Nor was the situation remedied after the men returned to work on December 8 and 9. The-atmosphere of tension and hostility which the respondent had created still prevailed. The actions of the ousting group had not been censured, but instead had been greeted by Rodgers with approval and commendation, thus encouraging their repetition io io In his appeal of December 7, urging the employees to permit the ousted employees to return to work, Rodgers had concluded as follows : "I want to thank you for the fine spirit of loyalty which you have shown , and I hope that I will conduct myself to always warrant this friendly feeling and loyalty that you have shown for me and if at any time I can be of any service to you, I hope that you will not hesitate to call upon me," 1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, nothing had been done or said to refute the prevailing im- pression that union organization would result in the closing of the plant. Continued union activity on the part of the remaining union members therefore still constituted a threat to the livelihood of all the employees. Possession of a tear-gas pencil by Taylor was, thus, the occasion for, rather than the cause of the incident of December 29. Taylor at no time used or threatened to use the pencil against any of the employees, and, indeed, it was as they were leaving the plant and at a time when no threat of any kind was being made against the non- union men that the four union men were accosted. We find that it was the actions of the respondent in creating this anti-union sentiment, and in encouraging violence against union members, that was the cause of the exclusion on December 29. The respondent must be held responsible as having, by its actions and words, caused the union employees to be ousted on December 1 and 2 and excluded on December 29.11 After these events the resultant loss of employment and termina- tion of employment were due to the respondent's failure to guaran- tee protection. In the interval between the oustings on December 1 and 2 and the date of their return to work, the ousted employees were told by Rodgers to stay away until it would be safe to return. None of the employees who had participated in the ejection of the union members were disciplined or even told that their conduct was looked upon with disfavor by the respondent. Rodgers testified that he never learned who the ringleaders were, but this statement cannot be believed in view of the overwhelming evidence that every- one, including Brewer, knew Howard Ledford to have led the oust- ing. Indeed, as we have pointed out above, Rodgers not only did not discipline the men, but instead praised their conduct as a demon- stration of "loyalty," thus encouraging its repetition. After the exclusion of December 29, the men were justified in not returning to work. Rodgers had once refused to grant them pro- tection at their work, and certainly men are not required to work in fear of bodily harm. It is indeed the duty of an employer to- guarantee to his employees safety while at work in his plant. The duty to show impartiality as between rival labor organizations obvi- ously does not authorize an employer to permit, in his plant, the assaulting of one group by another. 71 Compare the language of the Circuit Court of Appeals in Clover Fork Coal Company v. National Labor Relations Board, 97 F. (2d) 331, enforcing an order of this Board issued in 4 N. L It. B. 202 , in which the court said : "The contention, that employees were not discharged because of union activities by the petitioner but were forced out by the determined attitude of petitioner's non-union men in refusing to work with members of the United Mine Workers , must be rejected in view of evidence which supports findings that the attitude of the petitioner 's non-union men was if not inspired by , at least encouraged and promoted by the petitioner and its agents." ASHEVILLE HOSIERY COMPANY ET AL. 1377 In Matter of General Shoe Corporation and Georgia Federat ion of Labor, 12 involving a similar situation, we said : The respondent here owned the plant, exercised exclusive control over it and exclusive authority over its employees and the conditions under which they worked. It had the correlative and affirmative duty to protect its employees dur- ing working hours and to maintain safe working conditions for them. Instead of fulfilling the obligation which every em- ployer owes to his employees, instead of exercising the author- ity, inherent in its position, to protect them from assaults, it stood by idly and indifferently surrendering complete control to a group who proceeded to carry out the respondent' s desires. Viewed in the light of the events that occurred, the respondent's conduct amounted to a delegation of authority which it knew and expected would be invoked and unlawfully exercised at the expense of union employees. In the absence of such a guarantee of protection employees are justified in not returning to work without being considered to have left the employment of the respondent upon their own volition. Failure to grant protection, at least to the extent that it is within the employer's power to do so, amounts to a discrimination in regard to a term or condition of employment within the meaning of the Act. That the excluded employees did not, after December 29, once again explicitly request of Rodgers that he grant them protection is immaterial in view of Rodgers' admitted knowledge of the inci- dent, and his failure on the basis of such knowledge to get in touch with the men and assure them that they could return to work in safety. Since Rodgers had not only once denied them protection but had, as we have pointed out above, praised the conduct of the ousting employees, describing such conduct as an expression of loy- alty to himself,13 a further request for protection would undoubtedly have been futile. We find that the actions of the respondent were the direct cause of the ousting of Lloyd Brookshire, F. A. Silvers, Jack Pinkston, Ed Taylor, Clyde Shaft, and Clifton Nuckels on December 1, and of Maude King, Bonnie Silvers, and Lucy Silvers on December 2, and the exclusion of F. A. Silvers, Jack Pinkston, Ed Taylor, and Howard Jarrett on December 29. We find, further, that by its subsequent failure to grant protection, causing loss of employment to the ousted employees, and on the occasion of December 29, the termination of the employment of F. A. Silvers, Jack Pinkston, 32 5 N. L. R B. 1005, order modified and, as modified, enforced in National Labor Relations Board v. General Shoe Corp., 99 F. (2d) 223 (C. C. A. 5th, 1938). is See footnote 10, supra. 1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ed Taylor, and Howard Jarrett, the respondent has discriminated in regard to a term and condition of their employment and has thereby discouraged membership in the Union. We find that the respondent, by stating and intimating to its employees that in the event of the organization of its plant by the Union it would shut down its plant and cease operations, inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial 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. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom. Since we have found that the respondent by its discriminatory acts has brought about the termination of the employment of George Baxter, F. A. Silvers, Jack Pinkston, Ed Taylor, and Howard Jar- rett, we shall order the respondent to offer to these employees full reinstatement to their former or substantially equivalent positions, and to make each of them whole for any loss he may have suffered by reason of such discrimination, by payment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of the termination of his employment to the date of the offer of reinstatement less his net earnings 14 during said period. We shall also order the respondent to make whole Lloyd Brookshire, F. A. Silvers, Jack Pinkston, Ed Taylor, Clyde Shaft, Clifton Nuckels, Maude King, Bonnie Silvers, and Lucy Silvers for their loss of employment from December 1 and 2 to the date of their return to work on or about December _8. We will 14 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for the unlawful termination of his employment and the consequent necessity of seeking employment else- where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. It. 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. ASHEVILLE HOSIERY COMPANY ET AL. 1379 require the respondent to provide for the reinstated employees ade- quate protection from violence or molestation by other employees during working hours. Since the acts of the respondent which caused the ousting and exclusion of union employees were the threats and intimations by the respondent that the plant would close down if the Union were or- ganized, we shall order the respondent to state to its employees that it does not intend closing the plant in the event of the successful organization of the plant by the Union. We shall order further that the respondent instruct all of its employees that physical assaults upon fellow employees for the purpose of discouraging union mem- bership or activity will not be permitted in the plant, and that it take effective action to enforce these instructions. Upon the basis of the foregoing findings of fact and upon the entire record in the proceedings, the Board makes the following : CONCLUSIONS OF LAW 1. American Federation of Hosiery Workers 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 George Baxter and thereby discouraging membership in American Federation of Hosiery Workers, the respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By its conduct in causing employees to oust and exclude from the plant Lloyd Brookshire, F. A. Silvers, Jack Pinkston, Ed Taylor, Clyde Shaft, Clifton Nuckels, Maude King, Bonnie Silvers, Lucy Silvers, and Howard Jarrett, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. By its refusal to offer unconditional reinstatement and guaran- tee protection to Lloyd Brookshire, F. A. Silvers, Jack Pinkston, Ed Taylor, Clyde Shaft, Clifton Nuckels, Maude King, Bonnie Silvers, Lucy Silvers, and Howard Jarrett, the respondent has discriminated in regard to a term or condition of their employment, thereby dis- couraging membership in American Federation of Hosiery Workers, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 5. By stating and intimating to its employees that, in the event of the organization of its plant by American Federation of Hosiery Workers, it would shut down such plant and cease operations, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. By interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Asheville Hosiery Company, Asheville, North Carolina, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in American Federation of Hosiery Workers or any other labor organization of its employees by dis- charging or refusing to reemploy any of its employees, or denying them protection at their work, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or con- dition of their employment; (b) Expressly or by conduct stating or intimating to its employees that in the event of the organization of its plant by American Fed- eration of Hosiery Workers or any other labor organization it will shut down such plant and cease operations; (c) Permitting physical assaults on and threats of physical violence to employees in its plant for the purpose of discouraging membership in, or activities on behalf of, American Federation of Hosiery Workers, or any other labor organization; (d) 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 con- certed activities for the purpose of collective bargaining or other mutual aid and 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 George Baxter, Ed Taylor, Jack Pinkston, F. A. Silvers, and Howard Jarrett, immediate and full reinstatement to the positions formerly held by them, or positions substantially equivalent thereto, without prejudice to their seniority or other rights and privileges, and insure them full and adequate protection while they are in the employ of respondent; ASHEVILLE HOSIERY COMPANY ET AL. 1381 (b) Make whole George Baxter, Ed Taylor, Jack Pinkston, F. A. Silvers, and Howard Jarrett for any loss of pay they may have suffered by reason of the respondent's acts by payment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from the date of the termination of his employment to the date of the respondent's offer of reinstate- ment, less his net earnings during that period, deducting, however, from the amount otherwise due to each of 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, 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; (c) Make whole Lloyd Brookshire, F. A. Silvers, Ed Taylor, Jack Pinkston, Clyde Shaft, Clifton Nuckels, Maude King, Bonnie Silvers, and Lucy Silvers for any loss of pay they may have suffered by reason of the respondent's acts by payment to each of them of a sum of money equal to that which each would normally have earned as wages during the period from the date of their expulsion from the plant on or about December 1, 1937, to the date of their return to work on or about December 8, 1937; (d) Instruct its employees that the successful or attempted organi- zation of the plant by American Federation of Hosiery Workers or any other labor organization will not lead to the closing of the plant by the respondent; (e) Instruct all its employees that physical assaults on and threats of physical violence to their fellow employees for the purpose of discouraging membership in, or activities on behalf of, American Federation of Hosiery Workers, or any other labor organization, will not be permitted in the plant at any time-; and take effective action to enforce these instructions; (f) Post immediately in conspicuous places throughout its plant, and maintain for a period of at least sixty (60) consecutive days notices stating that the respondent will cease and desist as aforesaid, and stating further the content of 2 (d) and 2 (e), above; (g) Notify the Regional Director for the Fifth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. 164275-39-vol. xi-88