Harry Schwartz Yarn Co., Inc.

In the Matter of HARRY SCHWARTZ YARN CO., INC. and TEXTILE WORKERS ORGANIZING COMMITTEE Case No. C-340.-Decided May 03, 1939 Noi,elty Yarn Manufacturng Industrg Interference, Restraint, and Coercion: surveillance of employees while meeting with union organizers ; union affiliation and activity, questioning employees regarding ; anti-union statements ; discredit- ing union and leaders ; disorganizing union, encouraging employees to join for the purpose of ; individual bargaining in disregard of negotiations with union ; engendering fear of loss of employment for union membership or activity ; vili- fying union and its officers and leaders ; interference with consent election ; discriminatory discharges : for union membership and activity ; because of activities of union ; discrimination in amount and kind of work given to union members ; discriminatory refusal to reinstate striking union members to regular and continuous employment ; refusals to bargain collectively-Unit Appropriate for Collective Bargaining: all employees except supervisory, salaried, and cl^rical employees and foremen ; reliance upon agreement of parties to such unit as expressed in agreement for consent election-Representatives: proof of choice : membership in union; consent election-Collective Bargaining: refusal of : by refusing to accept a letter from union requesting collective bargaining; by fail- ing to negotiate in good faith, use of dilatory and obstructionist tactics ; by refusing to render an understanding with the union obligatory; by refusing to enter into any contractual relationship with the union--Discrimination: with respect to hire and tenure of employment : discharges and lay-offs : for union membership and activity ; because of the activities of the union ; dismissed as to one employee ; refusal to reinstate striking employees because of union member- ship and activity, charges of, dismissed ; refusal to reinstate discriminatorily discharged employees to regular and continuous employment because of union membership and activity, charges of, dismissed as to some employees ; with respect to terms and conditions of employment : giving union employees less work to perform than non-union employees; giving union employees the most difficult work to perform-Strike: caused and prolonged by unfair labor prac- tices ; conduct of-Strike Settlement: failure of ; effect accorded to-Reinstate- ment: ordered : employees discriminatorily laid off, discharged, or refused rein- statement to former or substantially equivalent employment at termination of strike, displacement of employees hired during strike, but not employed at com- mencement of strike ; if not enough work available reduction of force may be made on a non-discriminatory basis, dismissed employees being placed on a pref- erential list to be offered employment as it becomes available ; refused : to striking employees working elsewhere at termination of strike who refused offers of reinstatement at that time-Back Pay: awarded: laid-off and discharged employees ; from date of lay-off or discharge to date of offer of reinstatement during strike, or to date of reinstatement after strike, or to date of offer of reinstatement or placement upon a preferential list pursuant to the order ; monies received by employees for work performed upon Federal, State, county, muniv- ipal, or other work-relief projects to be deducted and paid over to agency which 12 N. L. R. B , No. 116. 169131-39-vol 12-73 1139 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supplied funds for such projects-Remedial Pay: awarded : to employees dis- criminated against in the amount of work they were given to perform ; in such sum as to place their earnings on a parity with the average earnings of non- union employees. Mr. Lee Loevinger, for the Board. Mr. Irving Kornblum, of New York City, for the respondent. Mr. Alfred Udoff, of New York City, for the Union. Mr. Warren L. Slvarfman, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Textile Workers Organizing Committee, herein called the Union, the National Labor Relations Board, herein called the Board, by Elinore M. Herrick, Regional Director for the Second Region (New York City), issued its complaint dated August 25, 1937, against Harry Schwartz Yarn Co., Inc., North Bergen, New Jersey, 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), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. In respect to the unfair labor practices, the complaint alleged in substance that on June 21, 1937, the respondent discharged eight named persons employed at its plant in North Bergen, New Jersey, because of their application for membership in and activities on be- half of the Union,l thereby discriminating in regard to the hire and tenure of employment of said persons and discouraging membership in a labor organization; that thereafter on said June 21 the respond- ent's employees at said plant went on strike because of the discharges and other unfair labor practices of the respondent; that on said June 21, and thereafter, the respondent refused to bargain collectively with the Union as the representative of all the production employees at the plant, exclusive of clerical and supervisory employees, although a ma- jority of these employees designated the Union as their representa- tive for the purpose of collective bargaining and said employees con- stituted a unit appropriate for such purpose; that on or about July 13, 1937, and thereafter to the date of the issuance of the complaint, the respondent refused to reinstate the employees who had gone on strike, although requested by the Union so to do, because they had 1 The names of these employees are as follows : Margy Barry , Dorothy Calla , Rae Callo, Salvatore Corsetti, Elsie Hall , Martin Iannaconne, Marie Marotta, and Leona Pallughi. BARRY SCHWARTZ YARN CO., INC. 1141 joined the Union and engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection; that by the foregoing acts, and certain other specified acts, the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed under Section 7 of the Act. The complaint and accompanying notice of hearing were duly served upon the respondent and upon the Union. On October 2, 1937, a second notice setting the hearing for October 7, 1937, was served upon said parties. On October 4, 1937, the Board duly served its notice upon the re- spondent and upon the Union that at the hearing it would move that. the complaint be amended to allege that the respondent discharged six additional named employees on said June 21, for joining and as- sisting the Union; l that it refused and still refuses to reinstate two. of said employees; 3 that it reinstated 12 of the employees 4 dis- criminatorily discharged on June 21, but only for short periods and for part-time work, and refused and refuses to give them regular- and continuous employment; that on August 30, 1937, the respondent. and the Union entered into an agreement wherein the respondent promised, among other things, to reinstate the striking employees and to discharge all new employees hired to replace said strikers, but that despite said agreement the respondent since said August 30 had re- fused, and still refuses, to reinstate 24 of said striking employees 5 because of their affiliation with and activities in behalf of the Union; and that the respondent discriminated against the striking employees, whom it did reinstate pursuant to said agreement, in the amount and kind of their work, and in other ways in regard to the terms and con- ditions of their employment because of their union membership and activities. Pursuant to notice a hearing was held in Passaic, New Jersey, on October 7, 1937, before Irving G. McCann, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel. The Board's motion to amend the com- plaint in accordance with its notice of motion to amend, above men- tioned, was granted by the Trial Examiner. The hearing thereupon was adjourned to afford the respondent an opportunity to prepare 2 The names of these employees are as follows : Helen Condor , Natallne Panarenato (at times referred to in the record as Nataline Parnarnto ), Gladys Plohn, Margaret Rist, Ethel Rogazza and Margaret Vigno s The names of these two employees are Helen Condor and Ethel Rogazza . See foot- note 85. 4 The names of the 12 employees are : Margy Barry, Dorothy Callo, Rae Callo, Salvatore Corsetti, Elsie Hall, Martin Iannaconne, Marie Marotta, Leona Pallughi, Natallne Pana- renato, Gladys Plohn , Margaret Rist, and Margaret Vigno 5 The names of said employees are alleged as follows : Harold Beilan , Angela Borealine, May Campbell, Carmen Carbello, Catherine Casserly, May Castor, Joseph DePerna, Hilda Frasca , Irene Carton , Catherine Hanson, John Karkowski, Irving Keith, May Kerrigan, Juliette Kilian. Paul Kruger, Lena Livesey Alexandra Monsoig, George Perannod Eleanor Petei s, Vincent Rivelli , Ethel Rogazza , Gertrude Strubel , Marie Testa , and Mary Tilki. 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its answer and defense to the complaint, as amended. Thereafter, the respondent filed an answer denying the material averments of the complaint, as amended. On October 13, 1937, the hearing was duly resumed, and held to and including November 1. The Board, the respondent, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. The complaint, as amended, was further amended at the hearing with respect to one named employee,e and was dismissed as to three other employees 7 therein named, but was reinstated as to one of said em- ployees.s During the course of the hearing the Trial Examiner made various rulings on motions and on objections to the introduction of evidence. On motion of the Board's counsel, he struck from the re- spondent's answer, as irrelevant, certain allegations that striking employees "at the behest of or with the permission of the Union" by various acts "sought to intimidate and coerce non-strikers." The respondent stated no exception to this ruling in its statement of ex- eeptions thereafter filed. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the conclusion of the hearing the respondent submitted to the Trial Examiner a written brief upon the issues presented. On December 21, 1937, the Trial Examiner filed his Intermediate Report on the record, copies of which were duly served on all parties, in which he found that the respondent had engaged in and was en- gaging in unfair labor practices affecting commerce, within the mean- ing of Section 8 (1), (3), and (5), and Section 2 (6) and (7) of the Act. He recommended, inter ilia, that the respondent cease and desist from engaging in the activities constituting the unfair labor practices; that it reinstate to their former positions with back pay certain employees found to have been discharged by the respondent for joining and assisting the Union; that it similarly reinstate with back pay certain other employees found to have been discriminated against in their reemployment by the respondent because of union membership and activities; that it make whole other employees found to have been discriminated against in the amount of their work by the respondent, for similar reason ; that the respondent bargain col- lectively with the Union; and that it take certain other affirmative action to remedy the situation brought about by the unfair labor practices. On January 8, 1938, the Union filed Exceptions to the The name of this employee is Marie Marotta See footnote 47 7 The names of these employees are Helen Condor, Paul Krueger, and Ethel Rogazza. See footnotes 68, 85. 1 The name of this employee is Ethel Rogazza HARRY SCHWARTZ YARN CO., INC. 1143 Trial Examiner's Intermediate Report. On January 18 the respond- ent did likewise. Pursuant to notice a hearing was had for the purpose of oral argu- ment before the Board in Washington, D. C., on February 14, 1938. The respondent and the Union presented oral argument on their Ex- ceptions, and the Union submitted a brief in support of its position. During the hearing counsel for the Union moved to conform the pleadings to the proof, and more specifically to amend paragraph 11 of the complaint, as amended, by adding thereto the names of 16 other striking employees whom the respondent allegedly - had refused re- instatement. Notice of this motion was served on the respondent on January 8, 1938. On February 12, 1938, the respondent filed with the Board a paper opposing the motion., The motion is hereby denied. The Board has considered the Exceptions to the Intermediate Re- port filed by the respondent and by the Union, and in so far as they are inconsistent with the findings, conclusions, and order set forth below finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is a New Jersey corporation, engaged in the manu- facture, sale, and distribution of novelty yarns. It operates a manu- facturing plant in North Bergen, New Jersey, and has its main office- in New York City. Harry Schwartz is the president and principal stockholder of the respondent. The yarns manufactured by the respondent are for the most part made from other yarns, which it purchases. About 80 per cent of the finished yarn is in rayon, 10 per cent in cotton, a similar percentage in wool, and less than 1 per cent in linen. The respondent obtains its rayon from Virginia; its cotton from the South, chiefly Georgia; its wool from Pennsylvania and Rhode Island; and its linen, apart from that procured in New Jersey, itself, from foreign countries. Ap- proximately 80 per cent of the total amount of these materials used in, the course of manufacture are purchased and brought to the plant from outside the State of New Jersey. The finished yarns manufactured by the respondent are shipped to knitting mills and other manufacturing companies located through- out the United States. Approximately 75 per cent of the respond- ent's products are shipped to customers outside the State of New Jersey. The respondent's business is seasonal in character. Manufacturing for the fall season commences early in July and continues until Octo- 1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ber; that for the spring season starts in December and continues until April. • In normal times the respondent manufactures for stock be- tween seasons. The number of persons employed at the plant varied considerably during 1936 and 1937. During the week of June 21, 1937, the respondent employed about 111 persons. II. THE ORGANIZATION INVOLVED Textile Workers Organizing Committee is a labor organization affiliated with the Committee for Industrial Organization, admitting to its membership all production and maintenance employees of the respondent, excluding clerical and supervisory employees. III. THE UNFAIR LABOR PRACTICES The Union commenced organization of the respondent 's employees at North Bergen on June 14, 1937. Union organizers visited the em- ployees outside the plant, spoke to them about the Union , and dis- tributed union literature . During the succeeding week many em- ployees became members of the Union, and some actively engaged in securing signed membership acceptances from fellow workers. On the morning of June 21 , 1937, the respondent laid off or dis- charged 12 employees ." These workers promptly decided to call a strike. They proceeded to the plant and requested all of the em- ployees to cease work and go on strike. By noon of June 21 all of the respondent's employees were out on strike. On the same day one Barkan, the union representative in charge of the organization of the employees , sent the respondent a registered letter stating that the Union represented a majority of the respond- ent's employees and asking that the respondent set a date by June 24 for collective bargaining with it as representative . On June 24, no reply having been received , Barkan telephoned the respondent's gen- eral manager, Littman, and asked when the respondent would bargain collectively with the Union. Littman replied that Barkan would have to communicate with Harry Schwartz , who was out of town. On June 28, 1937, the Union filed its charges herein with the Board setting forth unfair labor practices committed by the respondent in connection with the situation . Meanwhile , Barkan continued in his efforts to meet with the respondent, but without success. A concil- iator of the United States Department of Labor, one Kamenow, en- tered the controversy and by July 13, 1937 , was able to arrange a meeting of the Union with the respondent . At this meeting and at the succeeding one on July 19, the Union sought an agreement with the respondent for the termination of the strike and for the establish- See Section III C 1. HARRY SCHWARTZ YARN CO., INC. 1145 meat of satisfactory working conditions, but no agreement could be obtained. At the July 19 meeting the respondent, among other things, raised the question whether the Union had been designated by a majority of the respondent's employees as their representative for the purpose of collective bargaining, and the parties then con- sidered the matter of holding a consent election among the employees under the supervision of the Regional Director to determine that issue. On August 9, 1937, such an election was conducted, wherein a substantial majority of the employees designated the Union as their bargaining representative. Thereafter, several conferences between the respondent and the Union were held. By August 19, 1937, the parties reached an understanding covering all points. A written form of contract was drafted by the respondent's attorney in accordance with the terms of the proposed agreement, expressly excluding from its provision, however, all matter of membership in the Union as a condition of employment with the respondent and reserving such question for further negotiations within 30 days. On August 23, the day set for the execution of the contract, the respondent altered its position and refused to sign any contract. On August 24, the Union filed its amended charge, and on August 25 the complaint issued. The origi- nal hearing on the complaint was set for August 31. On August 30 the respondent and the Union met once more. . The conference of August 30 resulted in a settlement of the strike and the postponement of the hearing. The memorandum of settle- ment then made provided that the Union terminate the strike, that the respondent dismiss immediately all persons in its employ that were not eligible to vote at the election of August 9, and that all of the strikers would be reinstated. Attached to the memorandum of settle- ment was a proposed written contract between the parties containing provisions covering wages, hours, and working conditions to which the respondent and the Union had agreed. Shortly after the strike terminated the Union contended that the respondent was not com- plying with the memorandum of settlement and was engaging in further unfair labor practices. Further conferences between the re- spondent and the Union concerning these grievances failed. The proposed contract was never signed. Thereafter, a hearing on the complaint, as amended, was begun. Other facts pertinent to our decision will appear hereinafter. A. Interference, restraint, and coercion As stated, the Union commenced organization activities among the respondent's employees on June 14, 1937. The respondent lost little time in interfering with these activities and in otherwise intimi- 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dating and coercing its employees in the exercise of rights secured them by the Act. During the week of June 14 to 19 officials and supervisors of the respondent, including Littman, the general man- ager; Dave Schwartz, the vice president; Toulson, the superintend- ent; and Schecterman, a foreman; walked among the employees, and mingled with them, as the employees gathered outside the plant to talk with the union organizers. Considerable of this surveillance occurred during the lunch hour. The officials and supervisors not only followed the employees about but went into Mario's restaurant and a grocery store where the employees customarily had their lunch. Although the officials and supervisors did not speak to the employees they never before had mingled with them on such occasions or eaten in Mario's or the grocery store. Because of these acts, the employees were unable to speak freely, and some were afraid to speak at all, with the union organizers. At the hearing Littman and Dave Schwartz stated that they had followed the employees for the pur- pose of protecting them, that they had done so only after several employees had reported that there were some C. I. O. organizers outside the plant speaking with the employees and that "something might happen." In contrast to this explanation is the one given by the superintendent, Toulson, who testified that Harry Schwartz in- structed him to observe the employees during lunch hour and deter- mine whether the organizers were distributing and the employees accepting union membership cards, and to try to overhear what the employees were saying. We find that the respondent's officials and supervisors mingled with and followed the employees in order to observe the nature of and participants in the organizational activities occurring outside the plant, to discover the identity of those em- ployees who met and conversed with the organizers, and otherwise to restrain the employees from becoming members of the Union. The evidence shows that the respondent's officers were then receiving re- ports from various persons concerning the names of employees who joined the Union. During the same period the respondent, through its officials and supervisors, interrogated individual employees about their member- ship in the Union and whether their fellow workers had joined. Often coupled with such questioning were anti-union remarks and statements concerning the Union and its parent body, the Committee for Industrial Organization. On June 16 the general manager, Littman, while being transported in an automobile to the ferry by Keith, an employee, asked Keith whether he had joined the Union. Upon Keith replying that he had not, Littman said that it was un- wise for Keith to do so as the Union only wanted his money. Litt- man then proceeded to question Keith concerning the names of HARRY SCIIWARTZ YARN Co., INC. 1147 employees who had joined. On June 19 Littman called aside Rivelli, one of the subforemen, and said, "Vincent, what is this I hear about you signing the C. I. 0.? " Rivelli, who had signed a union member- ship application, simulated ignorance saying, "What is the C. I. O. anyway? " Littman replied "that the C. I. O. was a Union," that it "let you go on strike and ... lose your job," and "in case you, win the strike they let you pay so much a week :.. They were just a bunch of racketeers, they took your money and walked around." Littman asked Rivelli if he had seen any of the girl employees signing applications, and said that he would give Rivelli an increase in salary if he would report the names of any who signed. At the hearing Littman admitted conversing with Rivelli but stated that all he had told Rivelli was that Rivelli had the right to join or not to join the Union. However, in the light of the general anti-union attitude of Littman as disclosed by the record, and the surrounding circum- stances we feel that Rivelli's version of the conversation is entitled to belief. Toulson, the plant superintendent, also spoke of the Union to employees in terms that disclosed unmistakably the hostility of the respondent to the Union. In tk conversation with Rivelli on June 21 he told the story of an organizer who allegedly was being paid $75 per week by the "C. I. 0." and previously had been receiving $15 a week from the "W. P. A."; and added that it was the workers who joined that had "to pay for" that organizer. Dave Schwartz, the respondent's vice president, engaged in similar activity. On June 19 he stopped Corsetti, an employee and one of the leaders in the organizing campaign, and asked if Corsetti had joined the Union. Corsetti stated that he had not. Schwartz then said that Corsetti should not "bother with them" as "they" were "nothing but a bunch of communists." Schwartz was called as a witness by the respondent and denied making these statements. However, another witness, Iannaconne, who overheard the conversa- tion, testified that Schwartz's testimony was false. Schwartz's tes- timony, in general, was contradicted at almost every turn by wit- nesses whose testimony warrants credence. Upon the entire record, we are convinced that Schwartz's denials of the statements attributed to him by Corsetti are not to be believed. The making of anti-union statements by officials and supervisory employees did not cease on June 21, when the strike occurred. Later in the summer, during the time the Union was having its conferences with the respondent, the foreman of the stock department, one Schecterman, told an employee, Elsie Hall, who was one of the most active members of the Union, "that the C. I. O. were all a bunch of racketeers and that the contract [under discussion between the re- 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent and the Union] would be made to be broken." At the very time of the hearing Schecterman said to another employee, Margy Barry, that the union organizer, Barkan, and "the rest" were a "bunch of reds," and that the chairman of the Committee for Industrial Organization, John L. Lewis, was "trying to make a name for him- self like Mussolini." Littman did not confine his acts of interference and intimidation to those above mentioned. During the week of June 14 he sug- gested to Mario, the proprietor of Mario's restaurant, that he stop the union organizers from causing a "disturbance" while the em- ployees were having their lunch at his place. Mario thereafter posted a notice to that effect in the restaurant. Littman also told Mario that it was improper for Mario to allow meetings of the Union to be held in the resturant because of the proximity of the restaurant to the plant. Rose De Fina was and is a "twister" at the plant. On the morn- ing of June 19 Littman called her into his office and conversed with her. When De Fina later returned to her work, she was asked by Elsie Hall and Marie Marotta, another twister, what Littman had said. De Fina stated that Littman. inquired whether anyone had joined the Union and if she knew anything about it, that she had not told Littman anything. About half an hour later De Fina approached Marotta and requested five union application cards, one for herself and the others for four other employees, Mary Morley, Margaret Wilson, Marie Reuter, and De Fina's sister, Angelina Car- pinella. The cards were given to De Fina and she promptly signed one. On several occasions prior to this, both Hall and Marotta had tried unsuccessfully to persuade her to join the Union. After the strike was called on June 21 neither De Fina nor any of the other four girls picketed, although large groups of the employees did. De Fina attended no union meetings until 5 weeks after the strike began. At that time she and a group of her friends sought to induce some of the striking employees to return to work. Elsie Hall, upon being in- formed of this, discussed the matter with De Fina, who promised not to return to work during the strike. Two days later while the strike was still in progress Rose De Fina led a group of employees back to work. Littman admitted in his testimony that he called De Fina into his office on June 19 and testified that he asked her if she belonged to the Union. Apart from that the only conversation which he stated he had with her was to tell her that she had a right to join or not to join the Union. He testified that Rose told him that she had not joined and would not do.so, as "she was not in sympathy with strikes and labor trouble." Although specifically examined on the subject HARRY SCHWARTZ YARN Co., INC. 1149 at the hearing, Littman could not explain why he had called De Fina into his office to ask her these questions, when in interrogating other employees in similar vein on June 19 he had done so in the plant proper. Toulson, the superintendent, testified that Herman Schwartz, a salesman for the respondent and brother of Harry and Dave Schwartz, told him, Toulson, that the respondent's officials were keep- ing themselves informed concerning the Union through one of the girl employees. From the foregoing facts and testimony, in the light of the record, we are convinced that on June 19 the respondent, through Littman, encouraged Rose De Fina to join the Union and to induce her friends to do likewise, for the purpose of assisting the respondent in combat- ting the Union in such ways as might prove helpful to the respondent. During the strike, and while the Union was meeting with the respondent in an effort to settle the controversy and arrive at an agreement concerning wages, hours, and other working conditions, various officials and agents of the respondent urged individual em- ployees to ignore the Union and union leadership and to return to work. Harry Schwartz had instructed that the employees be visited at their homes, saying, "If you can get anybody to work, get them to work." Some employees were threatened that they never would secure future employment with the respondent unless they came back at once. Others were offered increases in pay if they would break rank. On July 21 the respondent's vice president, Dave Schwartz, visited Rose Giordano, an employee, at her home and asked her to return: to work. Giordano refused. Schwartz then reminded her of a pre- vious strike at the respondent's plant in Brooklyn which had failed, and declared that the Union would not win this strike, that the respondent would not sign a contract. When Giordano still refused, Schwartz told her that she never would work for the respondent. The record shows that about 2 weeks before this, Schwartz visited Gior- dano's home and asked her landlady, Mrs. Palumbo, to evict her unless she returned to work. While Schwartz's version of these occur- rences varied from that set forth above, we place no credence, as previously stated, in his testimony. At about the same time Dave Schwartz went to the house of another employee, Barry, who was active on the picket line and asked her to return to work. He referred to Harry Schwartz, saying, "You ought to know he will never consent to a union shop. He has beat 14 unions now and he is going to beat this one. If you want your job back, you better come in Monday." About 3 or 4 weeks after the commencement of the strike Littman and Herman Schwartz, the brother of Harry and Dave Schwartz, 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD talked with Elsie Hall while she was picketing. Littman departed and Herman Schwartz invited Hall to have breakfast with him. She accepted upon Schwartz's stating that Matilda Alford, another striker, could accompany them. According to the testimony of these employees, Schwartz said to them during breakfast that the Union would never win the strike, that Harry Schwartz would never sign a contract, and advised Hall to go back to work. When she refused, Schwartz offered her a 5-dollar a week increase in salary to return. At the hearing Schwartz testified that he had had the breakfast in question with Hall and Alford, that Hall had said that she would not go out on strike if she had it to do over again. The evidence shows that Hall was not among the employees who went on strike, but had been laid off just prior thereto. In any event, in view of the record, we are satisfied that Schwartz's conversation with the two employees occurred as set forth in their testimony. The record discloses numerous other instances of interference with, and restraint and coercion of employees by the respondent in the employees' exercise of the rights guaranteed by Section 7 of the Act. In its efforts to thwart unionization the respondent, through its super- visory officials, boldly interfered with the conduct of the consent election held on August 9 under the supervision of the Regional Director among the employees, for the purpose of selecting a bar- gaining representative. Employees in some instances were asked to vote for the respondent.10 Throughout the period of the strike these officials spoke in abusive and at times obscene language to employees, largely women, because of their membership or activity in the Union. Statements of this character were made to the employees while they were picketing, when they refused the respondent's request to break the strike, and in connection with the election. Dave Schwartz was especially offensive in his utterances. Such speech was well calcu- lated to and did intimidate the employees in their organizational work. It is apparent from the above facts, that the respondent, through Littman, Dave Schwartz, Herman Schwartz, and other officials and supervisory employees, engaged in a course of action designed to deprive its employees of their right to self-organization under the law. In the surrounding circumstances and in the light of the re- spondent's economic power, the afore-mentioned anti-union state- ments of Littman, Toulson, Dave Schwartz, and Scbecterman were intentionally intimidatory and coercive.h1 We find that the respond- 10 The respondent, of course, was not on the ballot, but a vote against the Union was clearly a vote for the respondent. '-Virginia Ferry Corporation v. National Labor Relations Board, 101 F. (2d) 103, 105-106 (C. C. A. 4) ; National Labor Relations Board v. The Falk Corporation, 102 F. (2d) 383 (C. C. A. 7) ; National Labor Relations Board v. Fansteel Metallurgical Cor- po) ation, 306 U. S. 240. HARRY SCHWARTZ YARN CO., INC. 1151 ent, by engaging in surveillance of its employees while they were meeting with the union organizers and discussing union organization among themselves; by interrogating its employees as to their union affiliation and activities; by making derogatory remarks and anti- union statements concerning the Union, its leaders, and the Com- mittee for Industrial Organization with which the Union was affil- iated ; by addressing its employees in abusive, insulting, and at times obscene language in connection with their union affiliation and activ- ities; by encouraging employees to join the Union and disorganize its activities; by soliciting individual employees, during the strike and settlement negotiations, to return to work in disregard of the Union's instructions to its members; by threatening employees with, loss of employment unless they did return to work and offering them. considerations to do so; by interfering with, and intimidating the- employees in their free choice of representatives at the election of- August 9, and by various other acts, has interfered with, restrained,,, and coerced its employees in the exercise of the rights guaranteed- under Section 7 of the Act. B. The refusals to bargain collectively 1. The appropriate unit The complaint, as amended, alleged that the production workers employed by the respondent at the North Bergen plant, exclusive of clerical and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining. The respondent in its answer denied any knowledge regarding the appropriate bargaining unit, and at the hearing offered no proof on this matter. As above mentioned, in July 1937 after the Union had met several times with the respondent in an attempt to settle the strike and secure a collective-bargaining agreement, the respondent challenged the status of the Union as bargaining representative, on the ground that it had not been designated by a majority of the employees in an appropriate collective-bargaining unit. This issue was resolved, as already stated, through a consent election conducted on August 9, 1937, by the Regional Director. The record shows 12 that the ballot was taken among employees in the following unit, "The employees of Harry Schwartz Yarn Company, Inc., exclusive of supervisory, salaried, clerical employees and foremen." The consent to the elec- tion was express, in writing, signed by the Union and by the re- spondent, neither of whom here questions the appropriateness of the unit in which the election was conducted, nor, for that matter, the Regional Director's Report upon Secret Ballot setting forth the 12 See Report upon Secret Ballot, Board Exhibit No. 3. 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election return. We have held in numerous cases where the parties in interest themselves have agreed upon a specified unit as appro- priate for collective bargaining, that it was within the exercise of our discretion to find such a unit an appropriate one to effectuate the policies of the Act.- We are of the opinion that a similar principle obtains here where the parties have consented to the conduct of an election by the Regional Director in a stated unit. The exclusion of supervisory, and clerical employees and foremen from the election unit, these employees not being admitted to mem- bership in the Union, was in consonance with our usual practice. Nor does it appear that the omission of salaried employees was improper. While the complaint, as amended, described the group of employees within the unit as production employees, it is clear from the character of organization carried on by the Union among the plant employees, as well as from the meaning given the term by the parties at the hearing, that the term should not be,interpreted strictly but should be accorded its broad meaning of including equally ,other employees such as maintenance workers, shippers, and truck drivers. The agreement for the election in describing the unit in which the ballot was to be taken referred unqualifiedly to the group of eligible employees as "the employees" of the respondent. We find that the employees of the respondent at the North Bergen plant, exclusive of supervisory, salaried, and clerical employees and foremen, constituted and constitute a unit appropriate for the pur- poses of collective bargaining, and that such a unit insures, to • the employees of the respondent the full benefit of their right to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit During the week ending Saturday, June 19, 1937, which was the week preceding the commencement of the strike on June 21, not more than 106 persons were in the employ of the respondent at the North Bergen plant in the unit here found appropriate for collective bargaining.14 Their names are set forth in the record.75 In con- is Matter of Lone Star Bag and Bagging Company and Textile Workers Organizing Committee, 8 N. L. R. B. 244 ; Matter of North River Coal and Wharf Company and Inland Boatmen's Union of the Atlantic and Gulf, 8 N L. R B 146. 14 The written consent and agreement of the respondent and the Union relating to the election of August 9 (Board Exhibit No. 7 ^ provided that the election was to be con- ducted among persons in the employ of the respondent during the week ending June 19 in the unit which here has been found appropriate For purposes of the election the respondent undertook to and did furnish the Regional Director with a list of the names of such employees As submitted , the list contained 99 names typewritten thereon. During a conference between representatives of the parties and the Board prior to and concerning the election, 11 names were added in handwriting . The name of one employee, Mary Martino, was written twice. Allowing for this error, the complete list consisted HARRY SCHWARTZ YARN CO., INC. 1153 nection with the election held by the Board on August 9, 1937, to determine whether the Union then represented a majority in the appropriate unit, the respondent and the Union agreed", that the ballot to be taken in the unit, should be taken among persons in the employ of the respondent during the week ending June 19, 1937. We accordingly find that from June 19 until August 9, 1937, both inclusive, the employees of the respondent within the appropriate unit were not more than 106 in number and consisted of the persons employed in the unit at the plant during the week ending June 19, 1937. By June 19, which also marked the close of the first week of or- ganizational activity, a majority of these employees accepted member- ship in the Union and designated it their representative for purposes of collective bargaining with the respondent in respect to rates of pay, hours of work, and other conditions of employment. Employees joining the Union signed certain union cards 17 wherein and whereby they affiliated themselves with the Union and authorized it to act as their bargaining representative. Barkan, the union organizer testified that prior to June 2118 he personally examined and counted the number of such cards then signed and determined that a ma- jority of the employees in that unit had signed during the week end- ing June 19. On June 21 this majority was increased by additional employees in the unit signing cards designating the Union their representative. At the hearing the respondent questioned the Union's designation as representative by a majority, at the time the Union first requested the respondent to bargain with it in the letter mailed June 21, 1937, hereinafter mentioned. It introduced in evidence a compilation 18 based on the signed union cards, showing the dates, as indicated by the cards, when certain named employees of the respondent respec- tively signed such cards, and listing the names of other employees who signed union cards which bore no dates. Further, by way of of 109 names and, as such , constituted the election roll . It was introduced in this prodeeding as Board Exhibit No 4. Of the 109 names thus on the list , five, viz, Julius Erhardt, Joe Burnsteln , Daniel Girovitz (also spelled in the record as Guiovich ), Vincent Rivelli , and Catherine Casserly, are those of supervisory employees not within the unit here found to be appropriate. At the hearing the respondent and the Union agreed that two employees not named on the list, viz, Edith Diehl and Helen Tames , should be included on the list Accordingly , in computing the number of persons in the employ of the respondent dur- ing the week ending June 19 in the unit found appropriate , we have deducted from the 109 names on the list, the names of the five supervisory employees , and have added the to employees agreed upon. 15 These are the persons whose names were counted in computing the number of persons in the employ of the respondent in the week ending June 19 in the appropriate unit. See footnote 14 10 Board Exhibit No 7. See footnote 14. 17 Board Exhibit No. 5 is June 20 was a Sunday and no cards were signed on that day. 29 Respondent Exhibit Nos . 1 and 1-B. 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD challenging the accuracy of the dates on the dated cards, it called two witnesses, Julia Scanlon and Rogazza,20 who testified that the respec- tive cards which they signed, dated June 18, 1937, were signed on June 21. There is no claim or proof that any of the employees whose names are set forth in the compilation revoked their designation of the Union as bargaining representative. A comparison of the names of the persons employed in the appropriate unit during the week end- ing June 19, 1937,21 with the names of those employees stated in the compilation as having signed cards of specified dates 22 establishes that 36 persons so employed in the unit, including Julia Scanlon and Rogazza, signed cards dated June 19, 1937, or before.23 We find nothing in the testimony of Scanlon and Rogazza which affords ground for the contention that the dates on the signed cards are gen- erally inaccurate. Moreover, in the instance of Scanlon we are satis- fied that the card was signed on June 18. There is credible evidence in the record showing that the card in question was signed during the week ending June 19, that the card adverted to by Scanlon was a duplicate card signed on June 21 and destroyed. With respect to the card signed by Rogazza, the respondent urged that the card could not possibly have been signed on June 18 because Rogazza was on vacation during the week of June 14. However, other evidence of the respondent 24 indicates that Rogazza worked one day that week at the plant. Nevertheless, because of some doubt, we will consider Rogazza's card as having been signed on June 21. With respect to the employees listed in the compilation as having signed cards which bear no dates 25 the record shows that 20 of these em- ployees, all within the unit,26 signed their cards on or before June 19.27 It also satisfactorily appears that two other employees in the 20 Ethel Rogazza, sometimes spelled Ethel Rogoza. 21 See footnote 14 22 Respondent Exhibit No. 1 Some of the names are misspelled but the identification Is clear 22 The names of these employees, excluding Rogazza, are as follows • Matilda Alford, Margy Barry, Frieda Bettiger, George Bucel, Rae Callo, Angelina Caipmella, Salvatore Corsetti, Clara DeBurgh, F. Deffenbough, Rose DeFina, Joseph DePerna, Molly Goldstein, Martin lannaconne , John Karkowski, Irving Keith, Ernest Kohler, Helen Condor, Esther \ Krausner, Theresa Lamura, Florence Luedeke, Ann Marotta, Marie Marotta, Mary Morley, Jean Mrozek, Nataline Panarenato, George Perienod, Gladys Plohn, Marie Reuter, Frank Rossi , Julia Scanlon, Ray Scanlon, Gertrude Stiuble, Anna Testa, Mary Tilki, and Margaret Wilson 21 Respondent Exhibit No. 7. 25Respondent Exhibit No. 1-B. 2e Sec footnote 8 21 Martin lannaconne, the employee leader in the organizing campaign, testified that the following persons signed cards on the following specified dates : Angela Borealine, June 18 or 19 ; Dorothy Carlo, June 17 ; Anthony Cotton, June 17 or 18 ; Josephine Fiala, June 18 ; Fiances Fiala, June 18 ; Elmer Forsyth, June 19 ; Michael Gaul, June 17 ; Elsie Hall, June 17 ; Juliette Kilian, Jure 19 ; Leona Pallughi. June 17 ; Marion Panepinto, June 19 ; Margaret Rist, June 18 or 19 ; Regina Serafin , June 19 ; Betty Torre, June 18 ; Margaret HARRY SCHWARTZ YARN Co., INC. 1155 unit, Margaret Vigno, an employee named in the complaint, as amended, and Raia, signed union cards before June 19.28 Upon the foregoing we find that at least 57 of the 106 employees within the appropriate unit did on or before June 19 designate the Union their representative for collective bargaining with the respondent, that the Union at all times since has been the representative of such employees. Further comparison of the names of employees in the appropriate unit 29 with the names of employees listed in the compilation as having signed dated cards 30 shows that on June 21, the first work- day succeeding June 19, 11 employees signed cards. With Rogazza and including the above 57, there thus were 69 employees who by June 21 had designated the Union their bargaining agent. There- after, more than 20 other employees within the appropriate unit signed dated or undated union cards. Upon the foregoing facts and the record, and in view of the further fact that all of the employees went on strike on June 21 with those who had designated the Union their representative, we find that on June 19, 1937, and from that date until the consent election of August 9, the Union was the duly designated representative of the majority of the employees in an appropriate unit, and pursuant to Section 9 (a) of the Act, was the exclusive representative of all the employees in such unit for the purposes of collective bargaining with the respondent in respect to rates of pay, wages, hours of employ- meut, and, other conditions of employment. The consent election was held on August 9, 1937. The Regional Director's Report Upon Secret Ballot 81 issued August 10, 1937, shows that 61 employees in the unit here found appropriate voted in favor of the Union acting as their representative for purposes of col- lective bargaining with the respondent, and 29 voted against. We find that on August 9, 1937, and thereafter, the Union was the duly designated representative of the majority of the employees in an appropriate unit, and pursuant to Section 9 (a) of the Act, was the exclusive representative of all the employees in such unit for the purposes of collective bargaining with the respondent in respect to Zanowick. Jure 19 Some of these names appear spelled differently in parts of the record but the identification is clear Eleven of the foregoing 16 persons themselves testified as to the date they signed , corroborating Iannaconne s testimony In addition , Harold Beilan testified that he signed a union card on June 19; Pauline Biedenkapp, that she signed one on June 18; Eleanor Peters, that she signed one on June IT, and Frances Schmale testified that her sister , May Castor , signed a card on June 19 t8 Margaret Vigno testified positively that she became a union member on June 16, although her card was not dated until later Fay Raia testified that she signed a union card on June 16 She w.is employed by the respondent in the appropriate unit during the week ending June 19 Mir name does i.ot appear in the compilation Sea footnote 14 20 Respondent Exhibit No 1. ii Board Exhibit No 3 169134-39-vol 12-74 1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusals to bargain On June 21, 1937, the Union, through Barkan, sent a letter by registered mail to the respondent at North Bergen requesting col- lective bargaining . The letter stated that the Union represented a majority of the respondent's employees and asked that a reply be made by June - 24 setting a date for bargaining . The respondent never replied . On June 24 Barkan communicated by telephone with the respondent's general manager, Littman, about the letter. Litt- man stated that the letter reached the plant , but he had refused to accept delivery of it because it was addressed to Harry Schwartz, personally. The evidence shows that the letter in fact was addressed to the respondent, not to its president . Upon Barkan's pointing out this fact, Littman answered that he would accept a redelivery of the letter. It is apparent that the respondent, through Littman, refused acceptance of the letter to avoid communication with the represent- ative of its employees. Littman knew at the time the letter was tendered by registered-mail carrier to the respondent that it had been sent by the Union '32 and his explanation for rejecting it rested on an untruth . The respondent cannot evade its duty to meet or treat with the representative of its employees by ignoring letters sent by their representative in the course of the collective-bargaining procedure. An employer is required to conduct himself with respect to such correspondence in a manner consonant with the fair demands of ordinary communication . We find that the respondent in rejecting the letter of June 21 , under the circumstances involved, refused to bargain collectively with the Union, within the meaning of the Act. In his telephone conversation of June 24 -Barkan informed Littman of the contents of the letter and asked when the respondent would bargain with the Union. Littman replied that he would have to dis- cuss the matter with Harry Schwartz , that Schwartz was out of town. During the succeeding 21/2 weeks the Union attempted repeatedly to secure a conference with the respondent, but to no avail . During this time the mayor of North Bergen, a conciliator for the United States Department of Labor, as well as one of the Field Examiners for the Board, intervened and sought to persuade the respondent to meet ivith the Union. The conciliator, Kamenow, was especially active. 32 This appears from the testimony of Barkan and is confirmed by the requirement of United States Postal Laws and Regulations, Section 1202 ( 1) and (4) that registered mail bear the name of the sender for purposes of identification upon tender of delivery. HARRY SCHWARTZ YARN CO., INC. 1157 The respondent, however, refused, predicating its unwillingness on the ground that the employees had gone on strike and that it could not act during Schwartz's asserted continued absence. It has repeatedly been held that the right of employees to bargain collectively through their chosen representative is in no wise defeated by the occurrence of a strike, that the very purposes and policy of the Act require the employer in such cases to meet with the repre- sentative of his employees in a bona fide effort to resolve the dispute through the processes of collective bargaining.33 Moreover, apart from the matter of "disentangling" 34 the two reasons advanced by the respondent, we are not satisfied, in the light of the record, that the second of these reasons, Schwartz's asserted continued absence, in fact explains or justified the respondent's conduct. We do not believe that throughout the 3 weeks which followed the calling of the strike and the closing of its plant, a period of some consequence to the respondent, there was no, person other -than Schwartz who was or properly could have been authorized by the respondent to meet with the Union. The general manager, Littman, as shown by the testimony of Schwartz and of Littman, himself, was a responsible and influential person in the management of the respondent' s affairs, well qualified to represent the respondent in matters affecting its employees. During the negotiations with the Union later undertaken by the respondent, Littman assumed a predominant position in repre- senting the respondent's interests. In view of the acts of intimidation and coercion, heretofore set-forth, then being engaged in by the re- spondent's officials and managerial employees, as well as the record as a whole, we find that the reason for the respondent's failure to enter into collective bargaining with the Union during this period was its determination to combat unionization. In any event, on July 13, 1937, chiefly through the offices of Kamenow, the Union succeeded in meeting with the respondent. Earlier in the day a form of contract was, submitted to Littman by the Union as a basis for discussion. The meeting was attended by Harry Schwartz, Herman Schwartz, and Littman, acting in behalf of the respondent, and by Barkan and one Froise, a union official, representing the Union. Kamenow also was present. Throughout the conference the respondent assumed the position that the strik- ing employees should return to work as a condition precedent to its entering into any discussion or negotiation concerning a contract "Matter of S L Allen i Company, Inc, a Corporation and Federal Labor Union Local No. 18526, 1 N. L. it. B. 714; order enforced (C. C A 3), C. C. H. Labor Law Service, Par. 18089 ; Jeffery-DeWitt Insulator Co. v. National Labor Relations Board, 91 F. (2d) 134 (C. C. A. 4), cert. den 302 U. S. 731 84 See National Labor Relations Board v. Remington Rand, Ino., 94 F. (2d) 862, 872, (C. C. A. 2), cert. den. 304 U. S. 576. 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Union. Littman was insistent "that no contract should be signed or agreed upon until first the status of the plant be brought back to the day of the strike." Accordingly, the respondent turned aside without serious consideration various proposals of the Union for settling the controversy . We find no warrant in the facts before us for the respondent thus deferring the performance of its duty to. bargain. What has been stated above regarding the purposes and policy of the Act in instances where an industrial dispute has arisen is equally applicable here. The Union, nevertheless, undertook on its part to arrange for the return upon the following day of 12 employees, the number which the respondent estimated was needed to commence production . The meeting then concluded. On July 14 the 12 employees reported at the plant for duty, but were refused work by the respondent , for the alleged reason that they had arrived at 11 instead of 9 o'clock. At the hearing Harry Schwartz admitted , and we find, that the actual ground for the re- fusal was that he had "changed his mind." He further testified that the respondent had decided that it "did not want to have any- thing settled in a half way." The record shows that during this period officials and agents of the respondent were urging and coercing individual employees to return to work, in disregard of the union leadership.35 Littman visited a number of the employees at their homes and told them that if they wanted to return immediately the respondent would take them. Also, as heretofore mentioned, the respondent's vice president on July 21 and • thereabouts went to the home of Rose Giordano and Margy Barry for the purpose of intimi- dating them to go back, and about the same time Herman Schwartz had breakfast with Elsie Hall to persuade her to the same end. On July 19 the respondent and the Union met again, after two previously arranged meetings had been postponed upon request of the respondent. Harry Schwartz, Froise, Barkan, and Kamenow were present. At the outset, Schwartz objected to the respondent 's engag- ing in any bargaining because the Union had not organized the em- ployees of the respondent's competitors in the industry and had not sought collective-bargaining agreements with such competitors. It is too clear for discussion, and we have held, that an employer cannot, for such reason, avoid the obligation imposed upon him by the Act to bargain with the representative of his employees.'' A fortiori is this true where collective bargaining is sought with an employer pending a strike induced , as herein found, by unfair labor practices. During the meeting some discussion occurred with respect to the contract which the Union had submitted to Littman on July 13. 85 See discussion in Section III A. 36 Matter of Harbor Boat Building Company, a, Corporation and Ship Carpenters Local Union tio. 1335, 1 N L H B 349, 355. HARRY SCHWARTZ YARN CO., INC. 1159 There is a conflict in the record as to whether Harry Schwartz in the course of this discussion offered, in behalf of the respondent, to enter into a contract with the Union similar in terms to an agree- ment which the Union then had with the Malina 37 Company, one of the respondent's competitors. At the hearing Schwartz denied having so offered and testified that he merely had made the state- ment, "I do not mind seeing it," meaning the Malina contract. Never- theless, the union representatives understood him to make the offer and through Froise stated that the Union would agree to enter into -such a contract. Whereupon Schwartz, who concededly had not seen the Malina contract, stated that the respondent would not accept it. While there is some dispute in the evidence about this matter, we are -satisfied that lie did so refuse. At the meeting the respondent also raised as objection to its bar- gaining, want of authority in the Union to act. Schwartz contended that a certain certificate, which he produced, issued some 3 years pre- vious apparently by the Textile Labor Relations Board 33 certifying a labor organization described as Harry Schwartz Employees' Asso- ciation, as collective bargaining representative for the respondent's -employees, debarred the Union from representing the employees. Schwartz further contended that the Union also lacked authority be- -cause it had not in fact been designated by a majority of the em- ployees. We do not believe that the respondent actually considered the certification a bar to recognition of the Union under the Act. IKamenow, who was present, promptly explained that the certificate was without force. It had been issued several years before, even before passage of the Act, under the authority of a law no longer .effective,39 to an organization which apparently was no longer in existence. Indeed Schwartz did not argue at length the force of the ,certificate, but turned to his claim that the Union had not been desig- nated by a majority. Barkan- suggested that this issue be determined through a consent election conducted among the employees under the -supervision of the Regional Director. Upon Schwartz indicating -that the respondent would accede to an election, Kamenow immedi- ately telephoned the Regional Office of the Board to secure the ap- proval of the Regional Director and to have a date set for an election. While conversing with the Regional Office Kamenow asked Schwartz Referred to in the record in various ways , as "Maligna," "Marina," "Melmas." 38 Although the record is not entirely clear, it appears that the board in question was the Textile Labor Relations Board created by Executive order on September 26, 1934, pursuant to Title I of the National Industrial Recovery Act (U S. C ., title 15, sec 701) and Public Resolution 44 (Pub. Res . 44, 73d Cong.). This board conducted elections for employees' collective bargaining representatives , and certified the results . After the Schechter decision , 295 U . S 495, it ceased functioning in this field. The board originally replaced the old Cotton Textile National Industrial Relations Board, which had been set up in 1933 under the National Industrial Recovery Act. 89 See footnote 38. 1160 BARRY SCHWARTZ YARN CO., INC. if the election could be held on July 21, whereupon Schwartz stated that he had changed his mind about having a consent election and would have to consult with Littman about it. The meeting then ended. We are of the opinion that the respondent did not bargain in good faith with the Union at the July 13 and 19 meetings. It made no sincere effort to ascertain and explore the proposals of the Union for settling the strike and establishing satisfactory working con- ditions. It made no genuine attempt by suggestion or proposal of its own, and by interchange of ideas, to achieve an understanding resolving the controversy.40 Throughout, its policy was to obstruct and delay by raising multiple unjustifiable or pretended objections to the carrying on of collective bargaining. When the Union sought to overcome some of these objections, the respondent beat a quick retreat, with its president "changing his mind." As heretofore set forth, during the period in which these meetings were held, and thereafter, the respondent through its officers and agents sought to induce and coerce individual employees and union leaders to ignore the Union and return to work. We have had occasion in previous cases to indicate the import of such conduct by an employer as dem- onstrating the absence of a real intent to bargain collectively with the designated representative." We find that the respondent refused to bargain collectively with the Union on July 13 and 19. No further meetings of the Union and the respondent occurred until August 6, 1937, when the parties conferred with the Regional Director at the Regional Office, relative to the holding of a consent election. An election was agreed upon. On August 9 the election, here- tofore referred to, was held wherein a majority of the respondent's employees designated the Union as their bargaining representative. In the week following the election several conferences were had by the Union with the respondent concerning an agreement. Litt- man, assisted by the respondent's attorney-at-law, acted for the re- spondent. After considerable discussion the parties on August 19, reached an understanding upon all terms of a proposed contract and the respondent's attorney was directed to draft a written con- 40 See Matter of 8 L. Allen d Company, Inc, a Corporation and Federal Labor Union Local No. 18526. 1 N. L R B. 714, 727, 728, order enforced (C C. A. 5), C C FI Labor Law Service, Par 18089; Globe Cotton Mills v National Labor Relations Board, 103 F (2d) 91 ((1 C A 5) 41 Matter of Bilcs-Coleman Lumber Company and Puget Round Dist,ict Conne-l of Lumber and Sawmill Workers, 4 N. L R. B, 679, 700. order enforced, National Labor Relations Board v. Biles-Coleman Lumber Company, 98 F. (2d) 18 (C. C. A 9) ; Matter of Atlas Mills, Inc. and Textile Workers of America, 3 N. L. R B. 10, 20, 22: Matter of Elbe File and Binder Company, Inc. and Bookbinders, Manifold and Pamphlet Division, Local Union No 119, International Brotherhood of Bookbinders, 2 N L R. B 906, 913; Matter of The Timken Silent Automatic Company, a corporation and Earl P Ormsby, Chairman, Execu- tive Board, Oil Burner Mechanics Association, 1 N. L. R. B. 335, 341. HARRY SCHWARTZ YARN Co., INC. 1161 tract in conformity therewith for execution by the parties the fol- lowing day. The agreement provided, among other things, for recognition of the Union as exclusive bargaining agent of the plant employees, for the return to work of the striking employees and for otherwise settling the strike, for wages, hours, and working condi- tions. The parties expressly agreed to exclude from the contract and reserve for future negotiation within 30 days the matter of membership in the Union as a condition of employment at the plant. On August 23 42 the union representatives, accompanied by one Williams, a conciliator of the Department of Labor, went to the office of Littman for the purpose of signing the agreement. Littman refused to sign. He told the union representatives that the respond- ent would not sign a contract with the Union unless provision was made for an "open shop." He then added that the respondent would not enter into any contract. The union representative understood from this that the respondent proposed to make no agreement with the Union, and they departed. At the hearing Littman testified that after the August 19 meeting had concluded he "changed his mind" about signing the contract, because he "did not want anything left open." He further testified elsewhere in the record that he did not know what caused him to state to the union representatives that the respondent refused to sign "that morning," that "it must have been something Mr. Froise said to me . . . It must have been some oc- currence that happened at the mill . . . It may have been something that happened to make me feel that way . . . It may have been one of these outbursts of violence." Littman admitted that he had au- thority to sign. We entertain no doubt that the respondent's refusal on August 23 to execute the proposed written agreement which its attorney had prepared, was motivated solely by an unwillingness to enter into any contract whatsoever with the Union. The union representatives reasonably so interpreted Littman's refusal. We are convinced that his statement to them concerning an "open shop" provision, viewed in the light both of his further statement that the respondent would not enter into any contract and of the entire course pursued by the respondent prior to the consent election, was a pretext. While the demonstration by the Union of its strength at the consent election, despite the interference therewith by the respondent, brought about a period when matters were discussed and an understanding reached, the facts show that the respondent did not completely abandon its intention to avoid contractual relations with the Union. We find that the respondent, by refusing to render that understanding 42 The postponement in meeting from August 20 to August 23 evidently was occasioned by a delay in the respondent's attorney's preparation of the formal papers. 1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obligatory,43 and refusing to enter into any contractual relationship'44 refused to bargain collectively, within the meaning of the Act. On August 25, 1937, the complaint issued against the respondent and hearing was set for September 1. On August 30, at the instance of the Regional Director, the union representatives met with Litt- man. The respondent's attorney and a member of the staff of the Regional Office were present. Littman was asked why the respond- ent did not execute the proposed contract. He replied that the respondent would not sign "unless the entire tiling was complete," meaning until the parties had reached an agreement upon the matter of union membership as a condition of employment. Littman further said that he was not prepared to discuss that matter with the Union, that he first would have to confer about it with Harry Schwartz, that the matter was one for Schwartz himself. Littman, however, assured the union representatives that he had "complete authority to carry on negotiations and to sign a contract." The member of the staff of the Regional Office who was present suggested that pending negotiations on the membership question an interim agreement be made by the parties looking toward the execution of a final contract when that question had been determined. Upon the parties' acquiescing, a so-called memorandum of settlement was drafted. It 43 In Matter of St. Joseph Stock Yards Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 159, 2 N. L R B. 39, 54, the Board stated : In our view of the Act, the minds of the parties having met, it imposed upon the respondent a definite obligation to embody that understanding in an agreement The respondent's failure to do so constituted an unfair labor practice, within the meaning of Section 8, subdivisions (1) and (5). 49 In Matter of Globe Cotton Mills and Textile Workers Organacing Committee, 6 N. L. It. B. 401, 467, the Board said : The term collective bargaining denotes in common usage, as well as in legal termin- ology, negotiations looking toward a collective agreement. If the employer adheres to a preconceived determination not to enter into any agreement with the representa- tives of his employees, as we have found here, then his meeting and discussing the issues with them, however frequently, does not fulfill his obligations under the Act. In enforcing the affirmative order of the Board in this case, the Court stated, Globe Cotton Mills v. National Labor Relations Board, 103 F. (2d) 91 (C. C. A 5) : We believe there is a duty on both sides, though difficult of legal enforcement, to enter into discussion with an open and fair mind, and a sincere purpose to find a basis of agreement touching wages and hours and conditions of labor, and if found, to embody it in a contract as specific as possible which shall stand as a mutual guaranty of conduct and as a guide for the adjustment of grievances In Consolidated Edison Company of New York, Inc., etc, et at. v. National Labor Relations Board, et at., 305 U. S. 197, the United States Supreme Court said : The Act contemplates the making of contracts with labor organizations. That is a manifest objective in providing for collective baigaining. In National Labor Relations Board v. The Sands Manufacturing Company, 59 S. Ct. 508, the Court said : The legislative history of the Act goes far to indicate that the purpose of the statute was to compel employers to bargain collectively with their employees to the end that employment contracts binding on both parties should be made. HARRY SCHWARTZ YARN CO., INC. 1163 was signed by the union representatives. Littman refused to sign. He stated as the reason that he did not "want it [the memorandum] to be construed as anything in the nature of a permanent agree- ment." The suggestion then was made that in such event the respondent's attorney sign the memorandum. Littman rejected this suggestion and cautioned the attorney "Don't you sign it either, because again it might be construed in that way." The respondent's attorney, nevertheless, did affix his signature, saying that he was doing ,so only as a witness. He told Littman, "You need not worry that it will be considered as my signing on behalf of the company any contract." After the member of the Regional Office likewise had stated to Littman that the attorney had signed "purely and solely as a witness," Littman was reassured. The conference concluded with an understanding among the parties that within the time pro- vided in the memorandum Harry Schwartz would meet and negotiate with the union representatives relative to the membership question. The memorandum consisted of two parts, the memorandum proper and an attached, unsigned draft of a formal contract between the parties containing provisions with respect to wages, hours, and work- ing conditions essentially the same as those in the draft agreement which the respondent refused to execute on August 23. The memo- randum proper provided in substance that the strike would be "called off" immediately, certain strikebreakers would be dismissed, and all striking employees reinstated ; that lay-offs at the plant in the future were to be made on a "union preference" basis; that the attached draft of contract constituted "evidence of the pro- visions to which the [respondent and the Union] . . . shall comply until settlement of the question of membership in the Union," and that said "attached contract shall be in existence until settlement of the membership question;" that this question was "to be decided by negotiations between [the respondent and the Union] .. . to commence within ten (10) days;" that in the event such negotia- tions failed the parties "shall be relegated to such rights as they may now be entitled to under the law;" that "Upon notice of settle- ment of the entire matter by the parties hereto, the Board will con- sider the question of whether or not the entire proceedings [herein] should then be dismissed." 45 There is no showing that at any time within the 10 days follow- ing the August 30 meeting, or thereafter, the respondent informed the Union that Harry Schwartz was prepared to meet with it and discuss the membership question. One of the union representatives 45 Section 10 (a) of the Act provides that the jurisdiction of the Board in respect to unfair labor practices , "shall not be affected by any other means of adjustment or pre vention that has been or may be established by agreement * * •." 1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD communicated with the respondent 's attorney and requested him to arrange a conference with Schwartz , but Schwartz never in fact met with the Union. At the hearing the respondent 's attorney stated that he had discussed the matter with Schwartz, that Schwartz had refused to meet the Union, that he had said , "Mr. Littman is capable of handling this thing with you." The record fails to disclose whether the Union ever was informed of this decision of Schwartz. On or about September 9 or 10 the union representatives met with Littman and the respondent's attorney. A member of the Regional Office staff attended. Harry Schwartz was not present. The re- spondent had not dismissed all of the strikebreakers , and the union representatives stated that this evidenced a lack of good faith in the respondent in its negotiations with the Union. Littman asserted that there were "just two or three strikebreakers in the plant ." When told that the number was approximately 16 lie disclaimed knowledge of the matter. The meeting ended with an understanding that the respondent would dismiss the remaining strikebreakers by the fol- lowing Monday morning, September 13. Thereafter, in the period immediately preceding the hearing, some discussions were, had between the Union and Littman . The Union felt convinced, because of the continued failure of the respondent to dismiss the strikebreakers and the occurrence of the unfair labor practices, hereinafter set forth , that the respondent was acting in bad faith in its negotiations . At one of these discussions Littman was asked whether the respondent would comply with the August 30 set- tlement. Littman replied that "until the open-shop clause was taken up, [the respondent] . . . could do as they pleased." Upon being further asked when Harry Schwartz would be ready to discuss that question Littman refused to answer. We find nothing in the events occurring subsequent to August 23, 1937, which convinces us that the respondent at any time since that date abandoned the position it then had assumed and began to comply in good faith with the collective-bargaining requirements imposed by the Act. Rather, the foregoing facts make manifest the adherence of the respondent at all times to its decision of avoiding any agree- ment with the Union relating to wages, hours, and working condi- tions. Littman's insistence that the execution of the proposed con- tract, concerning whose terms an understanding had been reached, be conditioned upon a resolution of the membership question, can only be viewed, in the circumstances here presented , as another dilatory tactic stemming from the respondent's unalterable decision. Littman, himself, undertook no negotiation of the question, despite his asserted authority in the matter. He referred the issue to Schwartz , a person whom the Union was afforded no opportunity HARRY SCHWARTZ YARN Co., INC. 1165 to meet. Littman's assurance that Schwartz would discuss the ques- tion with the union representatives was never fulfilled. We view the respondent's refusal to sign the memorandum of settlement and the admonishment of its attorney in that respect as further proof of the same abiding determination. Littman's explanation that affixing his or the attorney's signature would render the memorandum subject to the construction that it constituted a "permanent agreement" is wholly untenable in the light of the express language of the memo- randum. The proposed formal contract was never signed. The respondent's persistence in not bargaining in good faith, and its retention of the strikebreakers, resulted in a failure of negotiations for the proposed formal contract. We find that the respondent on or about June 22, 1937, July 13 and 19, 1937, and August 23, 1937, and on each of said occasions, and at all times since August 23, 1937, refused and is refusing to bargain collectively with the Union, as the representative of the respondent's employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment, and thereby has interfered with, restrained, and coerced, and is interfering with, restraining, and co- ercing these employees in the exercise of the rights guaranteed by 'Section 7 of the Act. C. The discriminatory discharges and lay-offs of June 21, and the commencement of the strike On the morning of Monday, June 21, 1937, the respondent laid ,off 46 Margy Barry, Dorothy Callo, Rae Callo, Elsie Hall, Leona Pallughi, Gladys Plohn, Margaret Rist, Ethel Rogazza, and Mar- garet Vigno; and discharged Salvatore Corsetti, Martin Iannaconne, .and Nataline Panarenato.4t As heretofore set forth, the preceding week of June 14 marked, the commencement of union organizational activities among the plant employees. During that week the respond- ent, as we have found, through its officials and supervisory force displayed open hostility toward the Union, engaged in surveillance 4e It is immaterial whether the employees named were laid off or discharged, for a ter- mination of work or employment, if for anti-union cause , would contravene the Act as a discrimination in regard to hire and tenure of employment , within the meaning of Section 8 (3) Matter of Precision Castings Company, Inc. and Iron Molders Union of North America, Local 80, 8 N. L. R. B 879 ; Matter of Servel, Inc. and United Electrical, Radio and Machine Workers of America, Local No. 1008 , 11 N. L R B 1295. 49 The complaint, as amended , alleged that two other employees , Helen Condor and Marie Marotta likewise were discharged on June 21 , 1937. As heretofore set forth, during the hearing, the Trial Examiner dismissed the allegations as to Condor and Rogazza, for the reason that these persons had not testified during the Board 's case in chief. Subsequently at the hearing, Rogazza was permitted to testify , and the allegations as to her were reinstated. The evidence shows that Marotta was not discharged on June 21 but went on strike on that day, and the complaint, as amended, was further amended at the hearing to allege properly this fact. 1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of and interrogated employees to ascertain the identity of those- who showed interest in the Union or participated in the organiza- tional activities, received reports as to employees who had become union members, arranged with Rose De Fina to assist it in com- batting the Union, and in other ways interfered with and coerced its employees in the exercise of their right of self-organization. Three of the above-named employees, lannaconne, Hall, and Cor- setti, were the leaders in the organizing campaign. They joined the Union either on June 14 or 15. Iannaconne assumed charge of the distribution and collection of union membership cards, Corsetti as- sisted him, and Hall obtained the signatures of some 25 employees to the cards. We are satisfied that the union activities of these persons were well known to the respondent prior to June 21. In the week of June 14 the foreman, Schecterman, averring that he wanted to become affiliated with the Union, asked Iannaconne if lie had joined the Union, and who the employees were that had become members. During that same period the superintendent, Toulson, in passing Hall at work, addressed her saying, "How is the C. I. O. going? How are you getting along?" On June 19 Dave Schwartz, the vice president, detained Corsetti and had the conversation with him heretofore mentioned in which Schwartz inquired whether Cor- setti had joined the Union, warned him not to "bother with them," and made various anti-union statements. The other above-named employees who were laid off or discharged, except Rogazza, joined the Union on or before June 18, 1937. They too were active in the Union. We are convinced that the union affili- ation or activities of a substantial number of these persons were known to the respondent through one or more of their superiors and the respondent's officers prior to June 21, 1937. Rae Callo, who acted as committee shop chairlady for the Union, was told by Littman on June 19 that he "heard rumors" of her becoming a union mem- ber. During the week of June 14 Dubin, the general foreman, ob- served and reacted to Barry's carrying of union membership cards. In the same week Pallughi was asked by Dubin whether the em- ployees were joining the Union; and was told by Dave Schwartz "not to listen" to Barkan, the union organizer, but to listen to "her boss." At the same time Littman and Dave Schwartz discovered Gladys Plohn talking with Barkan in Mario's. The record shows that on the morning of June 21, a few minutes before the beginning of work, Harry Schwartz, the president, tele- phoned the North Bergen plant from New York City and had a con- versation with Dubin, the general foreman. Dubin was in charge of various departments at the plant including the "twisting" depart- ment. Schwartz told Dubin that "some of the help" would have to HARRY SCHWARTZ YARN CO., INC. 1167 be laid off. According to Dubin's testimony, Schwartz also stated that the lay-off was occasioned by slow business, but did not tell him which employees or how many of them were to be laid off. Dubin informed Toulson, who was Dubin's immediate superior, about Schwartz's call. The evidence shows that Dubin had been in the re- spondent's employ about 8 years, Toulson some 7 or 8 months. There- after, Toulson either telephoned Harry Schwartz or received a tele- phone call from him concerning the dismissal. In this conversation Schwartz instructed Toulson to lay off "about" 25 of the women employees at the plant for a period until July 15 and to discharge all of the men employees.48 Schwartz testified that he told Toulson that the reason therefor was that "we were going into our season of slow business, and it would be advisable not to manufacture as heav- ily." However, Toulson already had sent away what help was not needed for the, day's work,49 and the. employees on hand all were working on "order" work, that is, production of yarn needed to fill orders.50 Toulson expostulated with Schwartz about the dismissal, pointing out that it would cause a stoppage in this work. Schwartz replied, "Do not ask any questions; just do as you are told. You better tell the boys [men employees] to get work elsewhere if they can, because we will not want them back again." While Schwartz at the hearing denied that Toulson protested the dismissals, the sur- rounding circumstances, as well as the facts discussed below, convince us that Toulson's-testimony of the-protest-is truthful. Usually the matter of discharging and laying off employees was not of Schwartz's concern but depended upon the discretion of the foremen and other supervisors at the plant. About half an hour later Toulson ordered all of the machines to be stopped and assembled together some 50 employees, those working principally in the "twisting" department!" The persons above named were, included. Toulson informed the employees that Schwartz had telephoned instructing that only a "skeleton crew" be retained, that some of the women employees would have to be laid off and all the '8 The men employees Toulson was instructed to discharge , termed by the witnesses "boys, " excluded foremen and subforemen , and evidently men working in the dye house who were not under Toulson's supervision. The men to be discharged were employed chiefly in the twisting department although they were "scattered around" doing work in other departments as well. 'B As set forth below, the respondent's business is seasonal in character , the "Fall season" commencing about the beginning of July w "Order work" is distinguished from "stock work" which is production in contemplation of orders "Those assembled did not include all of the men employees . Theie were others at work , for example, in the stockroom , the shipping department, and the dye house; also men engaged in carpentry work, maintenance , and truck driving. Toulson testified that "twisting" was the first basic operation in the manufacturing process and that men employees engaged in subsequent operations who were to be discharged would be dismissed later. The employees in the (lye house were not under his supervision. 1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men employees were to be discharged. Toulson indicated that the lay-off of the women would be for several weeks, and emphasized that the men employees, "especially," seek employment elsewhere. Corsetti, Iannaconne, and Panarenato were thus discharged. Toulson then told the women employees to return to their machines where those to be laid off would so be informed. Thereafter, Toulson and Dubin walked among the women em- ployees and Dubin, not Toulson, designated those to be laid off. Barry, Dorothy and Rae Callo, Hall, Pallughi, Plohn, Rist, Rogazza, and Vigno were selected.'' Some of these employees protested. Plohn asked why she was laid off when newer employees who cus- tomarily were laid off first were being retained. Dubin replied that he "wanted to give some of the new girls a break." Dorothy Callo, who had been employed by the respondent for 3 years, asked Dubin it similar question. His reply was, "Well, I am sorry. I am not laying off the girls. I am laying off the ones I have been told to lay off. I am not laying off the ones I would like to lay off." Margy Barry, who had been in the respondent's employ 5 years, told Dubin, "I need my job. There is a girl, Julia, working here a year, and she has a husband here. I want to know why I am being laid off." Dubin stated, "I am sorry. I did not pick out the girls. Those are my orders." The respondent contends that the lay-offs and discharges of June 21 were occasioned by slowness in its business and by business con- ditions; 63 further, that Dubin in selecting the above-named women employees to be dismissed chose them on an efficiency basis. We are not satisfied that the condition of the respondent's business, and of business generally, on June 21, 1937, were such as to explain the proposed lay-offs and discharges, or those actually made. The re- spondent's contention in this regard rests upon testimony lacking specificity in important particulars.- While there is some general testimony introduced by it to the effect that at some unspecified times in the past the respondent laid off on a single occasion 25 or 52 Toulson testified that at that time there was yarn already in the machines required for orders, and that because of that 25 women employees were not at that time laid off. 59 See footnote 54. 54 Some of this testimony indicates a confusion between conditions of the respondent's business on June 21 , and conditions existent some months later. This difference was brought out in the examination of Toulson at the hearing : Q. At that time, June 21, you did not know that this would be a bad season , did you? You know it now. Did you know it at that time? A. [Toulson] No. Q So, far as you were concerned , it might have been a very good season at that time? A. [Toulson] Well, we could not tell, of course. Q You could not tell at that time how the season would turn out? A. [Toulson] No. HARRY SCHWARTZ YARN CO., INC. 1169 more persons from among an unspecified total number of employees, this evidence falls far short of proving that the discharges or lay- offs of June 21 were an ordinary occurrence. On the other hand, the record shows that toward the beginning of July of each year the respondent regularly commences its so-called "Fall season" of manu- facture necessitating at that time and thereafter an augmentation in the number of employees, and of workdays per employee, rather than a dismissal of employees. In May 1937 the respondent increased generally the wages of plant employees, and in June initiated a practice of allowing vacations with pay to all employees on its pay roll for more than 1 year. Moreover, as stated above, on June 21 all of the employees at work on the machines were engaged at order work. Nor does the evidence establish that Dubin's choice of the women employees to be laid off was based upon efficiency or other work standard. Dubin's testimony with respect to his applying such criterion is unpersuasive. It contains contradictions, is evasive, and discloses lack of knowledge on relevant matters. We are convinced that all of the above-named employees laid off on June 21 were satis- factory in their work, and that at least some of them were very efficient workers. Six had been in the respondent's employ 2 years or more; all had won the praise of their superiors. Margy Barry, the employee who had been observed by Dubin in the week of June 14 carrying union membership cards, worked for the respondent 5 years and was described by Toulson at the hearing as being a "very good and efficient worker." Rae Callo, the committee shop chairlady whom Littman spoke to on June 19, as above stated, also worked 5 years for the respondent and similarly was described by Toulson as an efficient worker. We are satisfied from what has been set forth above, in the light of the entire record, that the respondent laid off Margy Barry, Dorothy Callo, Rae Callo, Elsie Hall, Leona Pallughi, Gladys Plohn, Margaret Rist; Ethel Rogazza, and Margaret Vigno, and discharged Salvatore Corsetti, Martin Iannaconne, and Nataline Panarenato, on June 21, 1937, for the purpose of intimidating, coercing, and re- straining the respondent's employees in the exercise of their right to join and assist the Union, and to discourage membership in the Union. It is manifest that the respondent's president, Harry Schwartz, pro- posed on June 21 that there be discharged and laid off a substantial number of the plant working force, including what employees were then known to the respondent to be active in or members of the Union, as a means of combatting the organizational activities begun the week before. The measure which he adopted was a form of lock- 1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out and a dismissal of known union sympathizers. -15 We entertain no doubt that Schwartz well knew prior to June 21 of the campaign being conducted by the Union to enroll the employees as members. Toulson, the respondent's plant superintendent, testified that in the week preceding June 21 he was instructed by Harry Schwartz "to keep my eyes open and see if there was anybody suggesting or,talk- ing . . . about the union ; also when I went to lunch I was instructed, along with the others [the respondent's officers and supervisory em- ployees] to see if any . . . [union organizers] were giving cards, and if any employees were accepting cards . . . and I and the others were told to stand nearby so we could hear what they [the employees and organizers] were saying." Toulson further testified that he, the "three Schwartz brothers" and Littman held conversations at that time in which they discussed the possibility of a union strike. Harry Schwartz's telephone call to Dubin on June 21 and his later telephone conversation with Toulson; the discharges of Iannaconne, Corsetti, and Panarenato as part of the general discharge of all men employees ordered to be carried out; the selection by Dubin of Barry, Dorothy and Rae Callo, Hall, Pallughi, Plohn, Rist, Rogazza, and Vigno for laying off and their being laid off, constituted successive steps in effectuating Schwartz's, and, accordingly the respondent's, illegal proposal. It evidently was immaterial to the respondent that a lay-off of the kind ordered among the women employees would result in a stoppage of necessary work, or that the discharges of Iannaconne, Corsetti, and Panarenato, the three men employees, would occasion a loss of competent workmen.56 Toulson testified that Iannaconne was a "very good worker," Corsetti "a very good and a very hard worker," and that Panarenato worked "very well indeed." It is difficult to understand why these men should have been dis- charged, not merely laid off, or, for that matter, why a discharge of all men employees should have been directed, if the motivation was solely current business conditions." The knowledge which the re- spondent had of lannaconne and Corsetti's union membership' leads us to conclude that Schwartz's order to discharge all men employees 15 As to the use of the lock -out technique to destroy unionization , see Matter of Santa Crux Packing Company, a corporation and Weighers and Cereal Workers, Local 38-4), International Longshoremen 's Association . 1 N L R B 454, 458 , order entotced to Santa Crui Fruit Packing Company v. National Labor Relations Board, 303 U. S 453; Matter of Hopwood Retinninq Company , Inc and Monarch Retinninq Company , Inc and Metal Polishers, Buffers, Platers, and Helpers International Union Local No. 8, and Teamsters Union, Local No. 584, 4 N. L R. B 922, 929, order modified and, as modified , enforced in National Labor Relations Board v. Hopwood Retinniug Company, Inc, and Monarch Retin- ring Company, Inc., 98 F (2d) 97 (C. C A. 2). 5" Toulson testified of a "general all around man" subsequently employed to perform in part I'anarenato's work, who was a "much more expensive man . . . and he did not do it half as well." "TCf Matter of Servel, Inc. and United Electrical, Radio and Machine Workers of America, Local No. 1002, 11 N. L. R B 1295 HARRY SCHWARTZ YARN Co., INC. 1171 was intended in part to make certain that the respondent would rid itself of all union adherents among these employees.58 The telephone call of June 21 from Schwartz to Dubin was for the purpose, we are convinced, of taking Dubin into Schwartz's con- fidence concerning Schwartz's decision to terminate, for anti-union rea- sons, the employment and work of a substantial group of the plant employees. We find that Schwartz communicated to Dubin his pro- posal in that regard, and, likewise, instructed Dubin to lay off among the women employees to be dismissed, those whom the respondent's management already was informed were members of or active in the union. Whether or not Schwartz told Dubin who these women employees were, we are satisfied, and find, that Dubin in making the selection knew their identity, that he designated at least Barry, Rae Callo, Dorothy Callo, Hall, Pallughi, and Plohn, because of their union affiliation or activities.58 The afore-mentioned facts show that the union membership or activities of these employees, at least, be- came disclosed to the respondent's management prior to the lay-off. The other three women employees, Rist, Rogazza, and Vigno, were laid off along with those whose union sympathy was known. As stated above, all of the women employees who were laid off, as well 4is the men employees who were discharged, had their work or em- ployment terminated as part of the respondent's plan to intimidate a.nd coerce the employees in their organizational activities in the exercise of the right of self-organization and to discourage union membership. From this viewpoint it is unnecessary to consider whether Rist and Vigno's union affiliation or activities were known to the respondent before June 21. It equally is immaterial that Rogazza first joined the Union and became active in its affairs sub- sequent to her lay-off. We find that the respondent on June 21, 1937, discharged or laid off Margy Barry, Dorothy Callo, Rae Callo, Salvatore Corsetti, Elsie Hall, Martin Iannaconne, Leona Pallughi, and Gladys Plohn, and each of them, because of their membership and activities in the Union, and discharged or laid off said employees and Nataline Panarenato, Margaret Rist, Ethel Rogazza, and Margaret Vigno, and each of them, because of the activities of the Union, thereby discriminating ° The plant employees were predominantly women Cf. Matter of Cherry Cotton Mills and Local No 1824, United Text,te Workers of America, 11 N L. R B. 478, where the Board stated of a shut-down that it "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 " rI The respondent in its brief stresses the testimony of Toulson, a Board's witness, that Toulson engaged in no anti-union discrimination in connection with the lay- offs of the Ni omen, that "it was a question of duty that I had to lay this number off" We find nothing in this testimony establishing that Harry Schwartz did not initiate the lay-offs and discharges for anti-union purposes or that Dubin did not execute Schwartz's Instruc- tions in that regard. As stated above, Dubin, not Toulson, designated those to be laid off. 169134-39-vol 12-75 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in regard to the hire and tenure of all said named employees, and each of them, and discouraging membership in a labor organization and interfering with, coercing, and restraining them in the exercise of their right to join and assist the Union. At the time of their respective lay-offs and discharges, Rogazza was earning $12.50 a week; Hall, Dorothy Callo, Rae Callo, Pallughi, and Rist each was earning $14 a week; Plohn and Vigno each was earning $13.65 a week; Iannaconne and Barry each was earning $15 a week; Corsetti was earning $15.60 a week, and Panarenato was earning $12 a week. After their respective lay-offs and prior to their reinstatement Dorothy Callo earned $22, and Plohn earned $20. None of the other employees laid off or discharged on June 21 earned any money apart from earnings received from the respondent. Corsetti, Iannaconne, Panarenato, and Rist, who have not been rein- stated to regular and continuous employment, desire full reinstatement. Following the discharges and lay-offs, the employees affected thereby left the plant and immediately determined to call a strike of all employees. They then returned to the plant and requested those at work to go on strike. Within a period of 5 to 10 minutes all of the employees were out. We find that the effective and proximate cause of the strike was the respondent's unfair labor practices in discharging and laying off the above-named employees on June 21, 1937. We further find that the refusal of the respondent to bargain collectively with the Union on or about June 22, 1937, and thereafter, and the other unfair labor practices in which we heretofore have found the respondent to have engaged during the strike, constituted an operative cause for the prolongation of the strike.80 There is neither showing nor convincing ground for belief that had the respondent discharged its duty under the Act by negotiating in good faith with the Union and refraining from committing its other unfair labor practices, the strike would not have terminated sooner than August 30, 1937.81 The respondent sought to establish that when the strike was called at the plant, some of the discharged or laid-off employees led working employees out of the plant; that Rae Callo, Barry, Tannaconne, and Corsetti "pulled switches," that is, turned off the electric power which operated some of the machines. The record plainly shows that the employees who went on strike did so voluntarily. What confusion occurred in connection with the calling of the strike does MBlack Diamond 8 S. Corporation v. National Labor Relations Board, 94 F. (2d) 875 (C. C. A. 2), cert. den 304 U. S. 579. 1 National Labor Relation8 Board v. Remington Rand, Inc., 94 F. (2d) 862, 872, (C. C. A. 2), cert. den. 304 U. S. 576, 585. HARRY SCHWARTZ YARN CO., INC. 1173 not show coercion. Nor are we convinced, apart from the irrelevancy of the matter, that the four named employees, or any of them, in fact stopped the machines. A number of the machines were left running after the employees went on strike; others were turned off in the customary fashion by the operators before going on strike. Some testimony was introduced by the respondent to the effect that lannaconne not only shut off the power, but on the evening of June 21 admitted having done so to Harry Schwartz in the presence of a police officer. The officer did not testify, and Iannaconne emphat- ically denied at the hearing having done so. HaTy Schwartz, him- self, stated in his testimony that a few moments after lannaconne's alleged making of the admission, Iannaconne denied shutting off the power to several other persons; and Toulson, the plant superintend- ent, testified not only that he had not witnessed any of the alleged pulling of switches at the time of the strike but that Harry Schwartz on several occasions had asked him to swear that Iannaconne had done so, despite Toulson's refusal so to testify. 2. Alleged discriminatory refusals to reinstate striking employees after the settlement of the strike on August 30, 1937 As stated above,e2 on August 30, 1937, the respondent and the Union signed as "witnesses" the memorandum of settlement which provided among other things that the Union was to terminate its strike and the respondent was to dismiss immediately all strikebreak- ers and reinstate all strikers.88 On August 31 the Union called off the strike, and Barkan, the union organizer, presented the respond- ent with a list of the strikers thus to be reinstated .64 Thereafter, the respondent dismissed certain strikebreakers 85 and reinstated certain ez See Section III B 3. ft The settlement agreement stated, "Persons now employed by the company who did not participate in the election vote of August 9, 1937 , shall be dismissed Immediately" Those entitled to vote at said election were "all employees on payroll ending in week of June 19 , 1937." See Board Exhibit No. 7. 84 Board Exhibit No. 19. 85 The extent of the respondent 's action in dismissing strikebreakers is ind sated by the following table computed from Board Exhibit No. 15A and 15B. Week ending- Sept. 4 Sept. 11 Sept. 18 Sept. 25 Oct 2 Oct. 9 Oct 16 Strikebreakers employed----- 33 19 9 7 10 12 6 Strikebreakers not employed whoworkedonAug 30,1937'_ 0 14 25 27 24 22 24 One strikebreaker, John Misorek, was not employed on August 30, 1937, but started to^ work for the respondent during the week ending September 18, 1937. 1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the strikers.86 However, some of the strikers in behalf of whom reinstatement had been requested, were never reinstated after August 30 by the respondent during the period under review .67 The complaint, as amended, alleged that the respondent refused to reinstate 24 striking employees because of their membership in and ac- tivity on behalf of the Union sg The names of these individuals are Harold Beilan, Angela Borealine, May Campbell, Carmen Carbello, Catherine Casserly, May Castor, Joseph DePerna, Hilda Frasca, Irene Garton, Catherine Hanson, John Karkowski, Irving Keith, May Ker- rigan, Juliette Kilian, Lena Livesy, Marie Marotta, Alexandra Mon- soiq, George Perrenod, Eleanor Peters, Vincent Rivelli, Ethel Rogazza, Gertrude Strubel, Marie Testa and Mary Tilki.8e The respondent ad- vanced at the hearing various reasons for refusing to reinstate the above-named strikers, the principal one being that there was no work for them to do either because their jobs had been eliminated or because work was slack, and contended that under the settlement, as evidenced by the memorandum of settlement, it was not required to reinstate the sstrikers under such circumstances. The settlement, which the memorandum of settlement of August 30 evidences, must be deemed to have been terminated, for all purposes, with the commencement of the hearing herein on October 7. As heretofore found, negotiations for the execution of the proposed formal contract failed prior to the hearing. We agree with the re- spondent that with the final failure of negotiations and with the com- mencement of the hearing, the memorandum of settlement, in its entirety, including that provision of the memorandum proper which provided for a continuance of the terms evidenced by the unsigned proposed formal contract until the membership question was resolved, "a Prior to October 16, 1937, of the 69 strikers eligible for reinstatement on August 30, 1937, 45 were reinstated for some period of time The number of reinstated strikers working each week from August 30 to October 16, 1937, is indicated by the following table computed from Board Exhibit No. 15C, 15D , and 15E. Week ending- Sept 4 Reinstated strikers employed- Sept 11 40 34 Sept 18 33 Sept 25 29 Oct. 2 32 Oct 9 34 Oct. 16 30 m The names of these persons are Harold Beilan , Angela Borealine , May Campbell, Carmen Carbello, Catherine Casserly, May Castor, Joseph Del'erna, Bertha Downey, Hilda Frasca, Catherine Hanson, John Karkowski , Irving Keith , May Kerrigan , Juliette Kilian, Lena Livesy, Anna Maine, Alexandra Monsoig, George Perrenod, Eleanor Peters, Vincent Rivelli , Ethel Rogazza, Gertrude Strubel, Marie Testa, and Mary Tilki 68 During the hearing the name of Marie Marotta was added to the complaint by amend- ment, and the name of Paul Krueger was dismissed from the complaint , as amended. "" Bertha Downey and Anna Maine were not named in the complaint , as amended, although they were not reinstated . See footnote 67, supra. Marie Marotta was named in the complaint, as amended, although she was reinstated during the week ending Sep- tember 4, 1937. Irene Garton, named in the complaint, as amended, was reinstated during the week ending October 9, 1937. HARRY SCHWARTZ YARN CO., INC. 1175 fell and was terminated, and that the parties thereto were thereafter relegated to such rights as they were entitled to, under the law, prior to the making of the settlement evidenced by the memorandum of settlement. Further, under the circumstances of the case, it will not effectuate the purposes and policies of the Act to accord the memo- randum of settlement any force.7° However, the fact that the re- spondent in refusing to reinstate certain strikers after August 30 was acting, to the extent that it did, in reliance on said settlement, shall be considered a circumstance in determining whether its refusals to reinstate were discriminatory. All of the above-named 24 persons, who were allegedly refused reinstatement after August 30, 1937, because of their membership in and activity on behalf of the Union, applied for reinstatement through the Union on August 30.71 Hilda Frasca, Ethel Rogazza, and Mary Tilki, the record shows, were offered reinstatement by the respondent after the strike settle- ment but were unavailable at the time. We find that Hilda Frasca, Ethel Rogazza, and Mary Tilki were not refused reinstatement because of their union membership and activity. Catherine Casserly and Vincent Rivelli were employed by the re- spondent at the time of the strike, Casserly in the winding department, and Rivelli in the reeling department. Both employees went on strike on June 21, 1937, have not worked for the respondent since August 30, 1937, and desire reinstatement. The respondent admits that Casserly and Rivelli were not reinstated, but denies that its failure to reinstate them was based on their union membership and activity. No one has replaced either employee. Dubin, the general foreman, does their work. The respondent asserts that it did not reinstate Casserly and Rivelli because their reinstate- ment would require the displacement of other production workers, which it was not required to do under the settlement of August 30; further, that Casserly and Rivelli had no actual production experience for several months prior to the strike. While the relevance of these employees' production experience is not readily apparent, we are satisfied that both Casserly and Rivelli were and are efficient produc- tion workers. It nevertheless is true that their reinstatement would have caused the displacement of other workers, not strikebreakers, and the memorandum proper of August 30, was interpreted by the re- spondent and by the Union to render unnecessary the reinstatement of strikers if no jobs were available after strikebreakers were dis- missed. According to the memorandum, therefore, the respondent properly could have refused the request made in behalf of Casserly and Rivelli on August 30 to be reinstated. 70 As to the power of the Board, see Section 10 (a) of the Act. 71 The precise list of names was tendered the respondent , as stated above, on August 31. 1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent did not refuse to reinstate Catherine Casserly and Vincent Rivelli because of their union membership and activity. Irene Garton was offered reinstatement by the respondent after the strike settlement but was unavailable at the time because of illness. When she recovered she reported back to work and was reinstated on October 7, 1937. We find that the respondent did not refuse to reinstate Irene Garton because of her union membership and activity. Marie Marotta was reinstated by the respondent on September 1, 1937, 2 days after the strike settlement. We find that the respondent did not refuse to reinstate Marie Marotta because of her union mem- bership and activity. May Campbell, Carmen Carbello, Juliette Kilian, Eleanor Peters, and Gertrude Strubel42 were all employed by the respondent as ex- aminers prior to the strike on June 21. They were all members of the Union and all went on strike. None of them was reinstated after the strike settlement. All of them desire to be reinstated. The examining department where these employees worked was eliminated after the strike. No one has replaced Campbell, Carbello, Kilian, Peters, or Strubel. The small amount of examining work now done by the respondent is performed by Julius Earhardt, who was subforeman of the examining department prior to the strike, and by Grace Valenti and Bertha Landrock, two employees who served as examiners prior to the strike and returned to work before the strike settlement in other capacities. As in the cases of Casserly and Rivelli, the respondent properly could have refused the request made in be- half of Campbell, Carbello, Kilian, Peters, and Strubel on August 30 to be reinstated. We find that the respondent did not refuse to reinstate May Camp- bell, Carmen Carbello, Juliette Kilian, Eleanor Peters, and Gertrude Strubel because of their union membership and activity. Harold Beilan 73 and George Perrenod 74 were employed by the respondent in the stock department prior to June 21. Both belonged to the Union and went on strike on June 21. Neither was reinstated by the respondent after August 30 because of the unavailability of work. Neither was replaced. Under the strike settlement the re- spondent properly could have refused the request made in their behalf on August 30 to be reinstated. We find that the respondent did not refuse to reinstate Harold Beilan or George Perrenod because of their union membership or activity. Joseph DePerna and Irving Keith were employed by the respond- ent as shipping clerks prior to June 21.75 Both men belonged to the 72 Also referred to as Grace Strubel. 78 His name also appears as Beilin. 74 His name also appears as Perranot. 75 While Keith worked as a chauffeur on occasions his position is that of a shipping clerk. HARRY SCHWARTZ YARN CO., INC. 1177 Union and went on strike. Neither was reinstated after August 30, 1937. There is no work available for either DePerna or Keith as shipping clerks, and neither has been replaced. In view of the strike settlement the respondent properly could have refused the request for reinstatement made in their behalf on August 30. We find that the respondent did not refuse to reinstate Joseph DePerna or Irving Keith because of their union membership or activity. Alexandra Monsoig 78 was employed by the respondent as a sample maker and in the hand-knitting department prior to June 21, when she went on strike. She was not reinstated after the strike settlement, because the respondent then made no samples and the hand-knitting department had been discontinued. Under the settlement the re- spondent properly could have refused the request for reinstatement made in her behalf on August 30. We find that the respondent did not refuse to reinstate Alexandra Monsoig because of her union mem- bership and activity. May Castor, Catherine Hanson, and Lena Livesey were employed be the respondent as winders prior to the strike on June 21. Hanson went on strike on June 21, and Livesey and Castor joined the strike ,on June 22. After the settlement the respondent reinstated all of the striking winders with the exception of Castor, Hanson, and Livesey.77 There was no work then available for them. The respondent properly 'could have refused their requests for reinstatement of August 30. We find that the respondent did not refuse to reinstate Catherine Hanson, Lena Livesey, and May Castor because of their union mem- bership and activity. Angela Borealine 78 and Marie Testa were employed by the respondent as reelers prior to June 21, 1937, when they, as mem- bers of the Union, went on strike. Neither has been reinstated since August 30, 1937, and both desire reinstatement. Three days after the strike settlement the respondent reinstated 9 of the 13 striking reelers.79 Borealine and Testa were not reinstated because there was no work for them. The respondent properly could have refused their requests for reinstatement of August 30. We find that the respondent did not refuse to reinstate Angela Borealine and Marie Testa because of their union membership and activity. May Kerrigan was employed by the respondent as a packer prior to June 21, 1937. She went on strike, and was not reinstated after 7e Also referred to as Monroy. 77 Anna Maine and Bertha Downey, two other winders not named in the complaint, as amended , were not reinstated after the settlement . The respondent requested their return but they had obtained jobs elsewhere. Catherine Casserly was the subforeman in the winding department. 78 Also referred to as Borealina. 7e A tenth reeler, Edna Testa, was reinstated the following week. Vincent Rivelli was a subforeman in the reeling department. Borealine and Marie Testa were the other two reelers not reinstated . See Board Exhibit No. 15-D. 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 30 because there was no work for her to perform. The respondent properly could have refused her request for reinstatement of August 30. We find that the respondent did not refuse to rein- state May Kerrigan because of her union membership and activity. Johan Karkowski 80 was employed by the respondent as a dyer prior to June 21, 1937, when he went on strike. He was not reinstated after August 30. Shortly after the strike settlement the respondent dismissed one Frank, a strikebreaker who was working as a dyer."' and offered the vacated position, through the Union, to Karkowski. At that time Karkowski was in Pittsburgh. However, Barkan assured Littman that Karkowski desired that position and that he, Barkan, would communicate by telegram with Karkowski, inform- ing him of the available position. On September 8, 1937, Kar- kowski, having returned from Pittsburgh, went to the respondent's plant seeking employment. The plant was closed, however, for the day, and Karkowski was unable to speak with any of the respond- ent's officials. He never again approached the respondent to secure reinstatement, but maintained relations with the Union for that purpose. On September 29, 1937, the respondent rehired Frank, who was employed from that time until October 18, 1937, when he was laid off because of a slack in work. Littman testified that he would have reinstated Karkowski and would not have reemployed Frank had he known that Karkowski was available'82 that he had been told by Barkan that when Karkowski returned from Pittsburgh the respond- ent would be notified, that no such notification had been received. On the other hand, Barkan testified that when Littman first offered to employ Karkowski he told Littman that Karkowski was in Pitts- burgh and would be available, that he, Barkan, expected Littman would communicate with him further about Karkowski, and that no such communication had been received. It is clear that under the strike settlement the respondent was required to dismiss Frank and make his position available to Kar- kowski. The respondent's failure to do so, if through its own fault, might have constituted a discrimination with respect to the employ- ment of Karkowski as well as a violation of the settlement. How- ever, from what has been set forth above, and from the entire rec- ord, we find that the failure to reinstate Karkowski was due to a reasonable misunderstanding by the respondent and the Union as to whether the Union was to inform the respondent that Karkowski 10 Also referred to as Krkowski and Jankowski. "See Board Exhibit No. 15-D. During the week ending September 4, 1937, Julius Frank worked 181/2 hours during 2 days. See Board Exhibit No. 12. s'" Littman testified that Karkowski was as good a worker as Frank, and the respondent points out in its exceptions to the Intermediate Report that it would have saved $8 a week by employing Karkowski instead of Frank. HARRY SCHWARTZ YARN CO., INC. 1179 had returned from Pittsburgh or the respondent was to communicate further with the Union about Karkowski's position. We find that the respondent has not refused to reinstate John Karkowski because of his union membership and activity. Upon the foregoing facts we will dismiss the complaint, as amended, in so far as it alleges that the respondent refused to rein- state the above-named 24 striking employees, because of their mem- bership in and activity in behalf of the Union. However, since the strike in which they engaged was caused and prolonged by the unfair labor practices of the respondent, our order will make provision for the reinstatement of these employees.83 3. Discriminatory and allegedly discriminatory refusals to give reinstated employees regular and continuous employment The complaint, as amended, further alleged that although the respondent reinstated Margy Barry, Dorothy Callo, Rae Callo, Salvatore Corsetti, Elsie Hall, Martin lannaconne, Marie Marotta, Leona Pallughi, Nataline Panarenato, Gladys Plohn, Margaret Rist, and Margaret Vigno'84 it has so reinstated them and each of them for only short periods of time and for part-time work and has re- fused to give them regular and continuous employment because of their union membership and activity'85 thereby discriminating in regard to the hire and tenure of employment, and terms and con- ditions of employment, of said employees, within the meaning of Section 8 (3) of the Act. We are satisfied from the entire record that Margy Barry, Dorothy Callo, Rae Callo, Elsie Hall, Marie Marotta,88 Leona Pallughi, Gladys Plohn, and Margaret Vigno received regular and continuous employment.87 Whether there was any discrimination as to the amount or kind of work these employees received after their rein- statement, apart from the regularity and continuity thereof, as com- pared with the work of non-union workers, will be dealt with here- inafter. 88 National Labor Relations Board V. Remington Rand, Inc., 94 F. (2d) 862 (C. C. A. 2), cert. den. 304 U. S 576 ; Black Diamond Steamship Corp. v. National Labo7+ Relations Board, 94 F (2d) 875 (C. C. A. 2), cert. den. 304 U. S. 579. 84 These employees were reinstated as follows : Barry , Dorothy Callo, Hall , and Marotta on September 1 ; Plohn and Vigno on September 2; Rae Callo , Corsetti, Pallughi, and Rist on September 3; Panarenato on September 9; and Iannaconne on September 11, 1937. 85 The amendment to the complaint also alleged that the respondent refused to reinstate Ethel Rogazza and Helen Condor for the same reasons The refusal to reinstate Rogazzq; has been discussed above, see Section III C 2. Helen Condor's name was dismissed from the complaint, as amended , during the hearing. See footnote 7. se Marotta 's reinstatement is dealt with in Section III C 2. 87 The salient facts concerning the employment of these individuals after their rein- statement appear in the following table. We find that the individuals listed in said table were given work and received earnings as set forth in the respective columns opposite their names, in the periods indicated . (Following page for table.) 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD m O G O m rw^ri iti inw sac .a m N C- C C O O ClO O ^m ;;V N M CO O M O 0 N W 00 N N O O _ M M C ' N m M N" H Ga m ti N l` 00 W 00000 m i N N .i N O n O ^^^ M ^ M n to CD N CD ti m 00000 CO uo O O O O V^ W Cl O Cl CA C) rl H .-I .4 .4 M N N N N ^' M N CO N 0O N CC 0 rn 0) M 00 M CO - - CO H M H M Ca COD li m b «) m .^^ M M O ^Ci O ^ O O Ki tq C7 GO m A-1ZA 1$2 :500EI CO N CO N CO M N M- M HARRY SCHWARTZ YARN CO., INC. 1181 We find, however, that Salvatore Corsetti, Martin Iannaconne, Mar- garet Rist, Nataline Panarenato have not been reinstated to regular and continuous employment."" The question, accordingly, as regards each of these employees is whether such failure to reinstate is at- tributable to discriminatory action of the respondent in contraven- tion of the Act. Salvatore Corsetti, prior to his discharge on June 21, 1937, was em- ployed as a "utility man," engaged generally in receiving and storing stock, moving machines, distributing stock, and placing and removing pipes. The record shows that from August 30 until October 16, 1937, the period with respect to which evidence was introduced, Corsetti was employed as a utility man by the respondent for a total of 40 hours at a wage rate of 421/2 cents an hour. The respondent maintains that Corsetti was given no other work during this period because none was available. However, it employed one Karp 89 in this same period for a total of 2681/2 hours, at least 90 per cent of which time was spent in removing and placing pipes. Karp was one of the strikebreakers, who under the terms of the August 30 settlement the respondent had agreed to dismiss immediately. Littman testified that he did not discharge Karp because there was no striker who satisfactorily could replace Karp at the work he was performing. However, Corsetti was fully qualified to perform the work done by Karp after August 30. Corsetti had performed such work for the respondent before his discharge. We heretofore have found that the respondent discharged Corsetti on June 21 because of his union membership and activities. Corsetti was one of the leaders in the organizing campaign which preceded his discharge, and assumed a prominent part in the activities of the Union throughout.the strike. We are convinced that the respondent did not dismiss Karp, as it had agreed, and make the work he was performing available to Corsetti, for the same reason that it had originally dis- charged Corsetti, namely, his union membership and activities. We find that while the respondent reinstated Corsetti after August 30, it refused, because of his union membership and activities, to pro- vide him with regular and continuous employment substantially equivalent to that which he had enjoyed before his discharge. By such refusal the respondent discriminated against Corsetti in regard to hire and tenure of employment ; thereby discouraging membership in the Union. To the, extent that the respondent's - refusal to afford Corsetti work was attributable to its unwillingness to displace Karp, BoSee footnote 87. p Also referred to as Korp. 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a strikebreaker, that, too, was a discrimination, within the meaning of the Act.90 By its discrimination against Corsetti after his rein- statement the respondent has interfered with, restrained, and coerced its employees and is interfering with, restraining, and coercing them in the exercise of the right guaranteed by Section 7 of the Act. Martin Iannaconne had been employed previous to June 21, 1937, in various occupations at the plant, including binding, twisting, examin- ing, and floor work. At the time of his discharge on June 21, he was engaged in floor work, that is, distributing work among other em- ployees, repairing machines, and giving general assistance. On or about September 11; 1937, Littman offered to reinstate Ianna- conne, apparently at twisting. The strike settlement provided that Iannaconne was to be reinstated at such work. Iannaconne thereupon proceeded to the plant to perform this operation. About an hour after his arrival Harry Schwartz observed lannaconne's presence and in- structed Toulson to "let him [Iannaconne] go out and put him on nights." Iannaconne was then dismissed. Thereafter, Iannaconne, on at least six occasions asked the respondent for work, but was never successful in obtaining it. On one occasion his foreman told him "that he could not put me to work until he was given orders by Mr. Littman." When Iannaconne then telephoned Littman, he was told that Littman would instruct the foreman to give him work. However, a subsequent inquiry of the foreman elicited the response that "there was nothing doing, but to call up the following day." Repeated calls by lannaconne brought no further results. Finally on October 18, while the hearing herein was being held, Littman told Iannaconne that "if he stayed home and slept the next day and called the foreman at 4 o'clock p. m." he would be given work the next night. Iannaconne was a witness at the hearing the following day.- While Iannaconne was reinstated and permitted an hour's work on September 11, it is plain that he did not receive after August 30, regu- lar or continuous employment. The respondent contended at the hear- ing that the reason Iannaconne was not fully reinstated was that he had "pulled the switches" at the time the strike began. We have here- tofore stated 92 concerning this matter, that, apart from the issue of its relevancy, we were not convinced that Iannaconne had engaged in such conduct. Moreover, as stated above, the strike settlement of Au- go See Matter of McKaig-Hatch, Inc. and Amalgamated A88ootation of Iron, (Steel, and Tin Worker8 of North America, Local No. 1139, 10 N. L. R. B 88. 11 That lannaconne was present every day at the hearing, and that the respondent was aware of this is shown by its exceptions. 12 See Section III C 1. HARRY SCHWARTZ YARN Co., INC. 1183 gust 30 expressly provided that the respondent would reinstate Ianna- conne as a twister. Iannaconne, like Corsetti, was one of the leaders of the Union. We have found that the respondent discharged lanna- conne on June 21 because of his union membership and activities. This fact, as well as the circumstances surrounding his dismissal by Schwartz on September 11 and the manifestly dilatory acts of the re- spondent thereafter, despite its agreement, in avoiding making work available to Iannaconne, plainly establishes that his inability to obtain regular and continuous employment resulted from discriminatory .cause. We find that although Iannaconne was reinstated by the respondent on September 11, 1937, he was refused regular and continuous em- ployment substantially equivalent to that in which he was engaged before his discharge on June 21. We further find that the respondent so refused to afford him such employment because of his union mem- bership and activities, thereby discriminating in regard to hire and tenure of employment and discouraging membership in the Union; that by such discrimination the respondent has interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed by Section 7 of the Act. Margaret Rist was employed by the respondent as a redrawer 1 clay each of the 3 weeks following the strike settlement. She was then laid off because there was no more redrawing work to be performed by her or any other redrawer. We find that the respondent did not dis- criminate against Margaret Rist by refusing her regular and con- tinuous employment after August 30, 1937. Nataline Panarenato worked as an oiler boy for the respondent prior to the strike. Subsequent to August 30, he was employed for 1 day to oil and tape some machines. He thereafter received no work because there was no oiling for him to perform. One Wilenkin, who is doing such work now, was in the respondent's employ prior to the strike and was working at the time of the settlement of August 30. We find that the respondent did not discriminate against Nataline Panarenato by refusing him regular and continuous employment after August 30, 1937. Upon the foregoing, we shall dismiss the complaint, as amended, in so far as it alleges that the respondent refused, after reinstatement, to give Margy Barry, Dorothy Callo, Rae Callo, Elsie Hall, Marie Ma- rotta, Leona Pa]lughi, Nataline Panarenato, Gladys Plohn, Margaret Rist, and Margaret Vigno regular and continuous employment be- cause of their union membership and activity. 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Discrimination in regard to amount and kind of work given to union members after the strike settlement The complaint, as amended, alleged that subsequent to the reinstate- ment after August 30 of striking employees by the respondent, the respondent discriminated against those it had so reinstated, in regard to the terms and conditions of their employment, because of their union membership and activities.93 The record shows that when the strike settlement of August 30 was reached some 26 of the employees who had gone on strike already had returned to work. None of these was then a member of the Union. On the other hand, all of the strik-' ing employees to be reinstated under the settlement were union mem- bers. Thus, after the reinstatement of the striking employees pursuant to the strike settlement, the respondent employed both union and non-union employees. The complaint, as amended, expressly alleged that the respondent gave the union employees only "part time" em- ployment while the non-union employees received regular and con- tinuous employment, that the union employees received the least pleasant of the work to be performed. Both the non-union and union employees were compensated for their services on an hourly basis, at the same rate within each occupational classification. Certain compilations in writing, based upon the respondent's own "time card" records, were introduced into evidence. 94 These com- pilations, among other things, set forth the respective amounts of the weekly earnings of all the respondent's employees during the 7-week period commencing with the week ending September 4, and concluding with the week ending October 16, 1937; which of these employees were union employees and which non-union employees; B3 The names of these employees and the classification of their occupations , as shown by the record, are as follows : Twisters : Margy Barry, Dorothy Callo, Elsie Hall, Ann Marotta, Marie Marotta, and Ann Zanowick ; Binders : Pauline Biedenkapp , Rae, Callo , Molly Goldstein, Leona Pallughi, Gladys Plohn, Margaret Vigno, and Margaret Zanowick; Reelers : Genevieve Dercia, Marcelle Eitzenhoffer, Rose Giordano, Betty Leone, Florence Luedeke, Fay Rala, Regina Serafin, Helen Tames , Edna Testa, and Emily Testa ; Winders : Bessie Abrams , Edith Diehl, Frances Fiala, Josephine Fiala, Irene Garton, Esther Krausner, Barbara Laub , Emily Menigaz, and Frances Schmale ; Coners : Matilda Alford. In addition to the foregoing employees , the following 12 striking employees who were members of the Union also were reinstated: Four of these employees , viz, Coisetti, Inna- conne, Panarenato , and Rist, have been considered separately in Section III C 3 , supra, and will not be dealt within this section. The remaining eight employees , Arce , Bucci, Cottons, Gaul , Kohlgr, Panepipto, Rossi , and Torre, likewise will not be dealt with in this section because the work which they performed upon their reinstatement was not per- formed by any non-uuionw employees , and, hence, no criterion for determining discrimina- tion in the amount - of their work exists. 84 Board Exhibit Nos. 15 and 19. See also Board Exhibit Nos 8, 9 , 10, 11 , 12, 13, and 14. HARRY SCHWARTZ YARN Co., INC. 1185 what the occupational classification of each employee was, as "twist- ers," "binders," "winders," and "toners"; and what employees were strikebreakers, subject to dismissal under the August 30 agreement, viz, the so-called "ineligible employees." The compilations further set forth certain conclusions therein reached relating to a comparison, in each occupational classification, of the amount of earnings received by non-union and union employees during the period reviewed 95 At the hearing the respondent did not challenge the specific statements in the compilations of the amount of weekly earnings of each em- ployee, or the designation of each employee as union or non-union, or the designation of certain employees as the so-called "ineligible employees," but contended that certain of the employees listed had been erroneously classified as to their occupation or had been errone- ously included in an occupational classification. The respondent, therefore, urged that the conclusions in the compilations were inaccu- rate. We find merit in this contention, and in view thereof and in view of certain other matters mentioned hereinafter have based our findings set forth below solely upon the admitted facts of said compilations, and the record, and not upon the conclusions of the compilations. We find that for each of the 6 weeks 96 during the period com- mencing with the week ending September 11 and terminating with the week ending October 16, 1937, the average earnings of the re- spondent's union employees and of its non-union employees, respectively, in the specified occupations, excluding the "ineligible employees," are as set forth in the following table. We further find that the average weekly earnings of the union employees and of the non-union employees, in said respective occupational classi- fications, from the viewpoint of the entire 6-week period, are as set forth in the said table. The date at the head of each of the various columns of the table, except the last column, is the last day of the weekly period to which the figures in the column apply. The figures in the columns under these dates state the average earnings for the weekly period ending with the respective date. The last column sets forth the average weekly earnings for the entire 6-week period, based upon the aggregate average earnings of all the 6 weeks. By "Union" and "Non-Union" are meant union and non-union employees, respectively. us These conclusions showed a substantial discrimination against union employees in the amount of their earnings. °B It appears that some of the union employees who worked during the week ending September 4, 1937, were not reinstated until the middle of the week. This fact would result in weighting the average weekly earnings -n their favor. We, therefore , have omitted this week from our findings. 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Week ending- Average Sept. 11 Sept. 18 Sept. 25 Oct. 2 Oct 9 Oct. 16 Sept 4- Oct. 16 Twisters: Union I ------------------------- 12.16 5.94 8 85 11 23 8 02 3.87 8.35 Non-Union 3-------------------- 10.25 9.45 12 82 17.82 16 40 10 78 12.92 Binders 1 Union 3------------------------- 9 50 6 34 7.16 9.81 5 54 3 70 7.01 Non-Union4.................... 9.58 7 15 8 69 11.09 10 19 6 81 8.92 Reelers. Union 5------------------------- 6.39 6 63 8 79 8.73 10 11 5.70 7.73 Non-Union 5-------------------- 11.09 14 26 15 84 15 85 15 84 15 84 14 79 Winders Union °------------------------- 10 54 12 12 17 57 15 13 13 39 14 97 13.95 Non-Union 8____________________ 12.04 14 26 17 82 17.82 16.45 15 02 15.57 Coners Union 3------------------------- 3 17 .53 Non-Union 10--------- ---------- - 9.50 14 95 12 67 15 84 15 84 15.84 14 11 All above classifications combined* II Union--------------------------- 8 88 6 95 9 34 10 85 9 47 7 25 8 79, Non-Union---------------------- 9 76 11.53 14 10 16 09 15 02 12 30 13 13 The union twisters are Margy Barry, Dorothy Callo, Elsie Hall , Ann Marotta, Mane Marotta, and Ann Zanowick Barry is included for the full period because we view, and find , her lay-off in connection with the Wilson incident as discriminatory , within the meaning of the Act Martin Iannaconne, Rae Callo, and Leona Pallughi are excluded from the table in accordance with the respondent's contentions 2 The non-union twisters are Rose DeFina , Agnes Dunphy, Margaret Durkin, Theresa La Mura, and Mary Morley Freida Bettiger, Jean Mrozek , and Marie Reuter are excluded from the table , as the re- spondent contended , because they are twister-binders. All night twisters are excluded from the table as they are paid at a different hourly rate 3 The union binders are Pauline Biedenkapp , Rae Cello, Molly Goldstein , Leona Pallughi . Gladys Plohn, Margaret Vigno. and Margaret Zanowick . Molly Goldstein was excluded from the table after the, period ending September 25, 1937, because it does not appear that she was discharged discriminatorily 4 The non-union binders are Angelina Carpinella , Florence Deffenbaugh , Julia Scanlon, and Margaret Wilson 5 The union reelers are Genevieve Dercia , Marcelle Eitzenhoffer, Rose Giordano, Betty Leone. Florence- Luedeke , Fay Raia, Regina Serafin, Helen Tames , Edna Testa, and Emily Testa Angela Borealine, Vincent Rivelli , and Maria Testa are not included in the table because they were not reinstated 5 The non-union reelers are Theresa McNulty and Margaret Silvers Nicholas Provizano and Michael Karp are excluded from the table as the respondent contends , because they are not reelers 7 The union winders are Bessie Abrams , Edith Diehl, Frances Fiala, Josephine Fiala, Irene Garton, Ester Krausner , Barbara Laub, Emily Menigaz , and Frances Schmale Bertha Downey, Catherine Han- son, Lena Livesey, and Anna Maine are not included in the table because they were not reinstated Matilda Alford is excluded from the table, as the respondent contends , because she is a toner Edith Diehl, Irene Garton, Barbara Laub , Emily Menigaz , and Frances Schmale were included in the table only for the period following their reinstatement 8 The non-union winders are Bertha Boos , Clara De Burgh , Anna Gehrman , Josephine Goerther, Emma McMannus , Kate Matys . and Elva Smith Grace Valenti and Bertha Landrock are excluded from the table, as the respondent contends, because they are examiners Likewise, Wilhelmina Mayer is excluded because she is a coner 8 The only union toner is Matilda Alford le The only non-union toner is Wilhelmina Mayer n Only the employees named above as being included in the table are included in this classification. It is apparent from the foregoing table, and we find, that in each week during the period commencing with the week ending Septem- ber 11 and concluding with the week ending October 16, 1937, except for 1 week in one classification,9" that the non-union employees in each classification earned substantially more than the union employees in the same classification. During the 6-week period under con- sideration, the average amount of earnings received by non-union employees was 49 per cent greater than the average amount of earn- ings received by union employees. Prior to the strike of June 21 the respondent allocated the avail- able work equally among all employees in each of the occupational classifications. The draft contract attached to the memorandum of settlement speaks of such equal distribution. Littman, the general 97 Week ending September 11-Twisters HARRY SCHWARTZ YARN Co., INC. 1187 manager, testified that after August 30 he instructed the foreman to distribute the work evenly, in the most "economic way." He admitted, however, that the union employees consistently had received less work and, consequently they had earned less than the non-union employees, but urged that the difference was explicable in terms of the relative efficiency of employees. Dubin, the foreman in charge of the winders, testified that Littman instructed him to distribute the work equally between the union and non-union employees , but was unable to explain why, after August 30, the average earnings of the non-union winders were consistently higher than the average earn- ings of the union winders. On the other hand, Barkan , the union organizer, testified that when he complained to Littman about the uneven distribution of work Littman replied that he would "run the company as he saw fit." Toulson, the plant superintendent, testified that after August 30 Littman from time to time "checked up" on the amount of work given to the various employees, chiefly to the union employees; that thereafter Littman would instruct him, Toulson , to lay off certain employees ; that invariably these were the union employees. Elsie Hall, one of the employees who we have found was discriminatorily laid off on June 21 for union membership and activities was told by her superior, "I would give you more work if it was up to me. You are a very good worker . If it was up to me I would let you work all week but I get half a hundred [$50] . . . to do as I am told." Pallughi, Iannaconne, and Dorothy Callo each were told by their superior upon requesting more work that they could not be given more because of "Littman's orders." We are satisfied, and find, that the respondent , after August 30 gave union employees less work to perform than it gave non-union employees, that it so discriminated against the union employees be- cause of their union affiliation , to discourage membership in the Union. The widespread and substantial nature of the discrimina- tion does not yield to an explanation based on a variation or differ- ence in the capabilities between the union and the non-union em- ployees. We find that the respondent subsequent to August 30, 1937, discriminated in regard to the terms and conditions of the employ- ment of its employees to discourage membership in the Union ; that by such acts the respondent has interfered with, restrained, and coerced its employees , and is interfering with, restraining, and co- ercing them, in the exercise of the rights guaranteed in Section 7 of the Act. There are set forth in the table below, in the last column thereof, the respective amounts of money which the union employees, whose 169134-39-vol. 12-76 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD names are listed in the table,98 would have earned during the period 'from September 6 to October 16, 1937, apart from and in addition .to that which they did earn, had the respondent during said period given each of said union employees following his or her reinstate- ment an amount of work equal to that which, as an average, the ,non-union employees in his or her occupational classification were -then given. The other columns of the table set forth the following: In the first column are stated the names of the union employees; in ,the second their respective occupational classifications; in the third the number of weeks during the period from September 6 to October 16, 1937, which ensued following their reinstatement;99 in the fourth the average weekly earnings of each employee for the period set ;forth in the third column opposite his or her name; and in the fifth, ,the average weekly earnings of all the non-union employees in the ;respective occupational classifications during such period. We find .as a fact all of the facts set forth in said table. Each of the amounts listed in the last column of the table represent, respectively, the ,difference between the figures in the fifth and fourth columns opposite such amount, multiplied by the number in the third column opposite ,such amount, ame of employee Occupational classification Number of weeks rein- stated in period Sept 6- Oct. 16, 1937 Average weekly earnings same period Average weekly earnings of non- union employ- ees in the same occupational classification same period Amount to be received Margy Barry__________________ Twister_____ ______ 6 $5 34 $12 92 $45.48 Dorothy Cello_________________ _____do_____________ 6 7.41 12 92 33 06 Elsie Hall_ ____________________ _____do_______ 6 7 72 12 92 31.20 Ann Marotta__________________ _____do =_________-_ 6 10 02 12 92 17 40 Marie Marotta ________________ -----do------------- 6 9 48 12 92 20 64 Ann Zanowick _______ _________ _____do------------- 6 10.10 12 92 16 92 Pauline Biedenkapp------------ Binder ____________ 6 6 08 8 92 17 04 Rae Cello_____________________ _____ do_____________ 6 5 71 8.92 19.26 Molly Goldstein_______________ _____do_____________ 3 5 66 8 47 8 43 Leona Pallughl ---------------- _____do_____________ 6 6 61 8 92 13 86 Gladys Plohn_________________ _____ do_____________ 6 8 00 8 92 5 52 Margaret Zanowick___________ _____ do____________ 6 7 12 8 92 10 80 Genevieve Dercia _____________ Reeler_ ____________ 6 2 06 14 79 76 38 Marcelle Eitzenhoffer_________ _____ do_____________ 6 6 06 14 79 52 38 Rose Giordano ________________ _____ do_____________ 6 3 71 14 79 66 48 Betty Leone ___________________ ----- do------------- 6 6 59 14 79 49 20 Florence Luedeke _____________ _____ do_____________ 6 8 35 14 79 38 64 Fay Rala---------------------- _____do_____________ 6 12 06 14 79 16 38 'Regina Serafln___________ ______ _____ do_____________ 6 9 50 14 79 31 74 Helen Tames__________________ _____ do_____________ 6 7 89 14 79 41 40 Edna Testa ___________________ _____ do_____________ 6 8 95 14 79 35 04 Emily Testa ____________ _______ ----- do------------- 6 11 89 14 79 17 40 Edith Diehl ___________________ Winder----------- 2 15 04 15 74 4 20 Frances Fiala__________________ _____ do_____________ 6 14. 13 15 57 8 64 Josephine Fiala ____ _______r____ _____do_____________ 6 13 53 15 57 12 24 Irene Garton __________________ ----- do------------- 2 13 37 15 74 14 22 Esther Krausner______________ _____dc_____________ 6 14 61 15 57 5 76 Barbara Laub _________________ _____do_____________ 3 11 88 16 43 27 30 Emily Memgaz________________ _____do_____________ 3 12 84 16 43 21 54 Frances Schmale ______________ _____ do_____________ 3 14. 37 16.43 12 36 Matilda Alford________________ Coner_____________ 6 .53 14 11 81.48 98 Bessie Abrams and Margaret Vigno are excluded from the table as it does not appear ,that they were discriminated against. 01 Thg1e was some aelfy after August 30 in reinstating employees. HARRY SCHWARTZ YARN CO., INC. 1189 Discrimination against the union employees after August 30 was not limited to the unequal distribution of work discussed above. 'The record shows that on or about August 30 Harry Schwartz 'directed Toulson "Now Toulson, this strike is about over. When .the girls come back to work, I want you to treat them like the sons .of bitches that they are. Sweat them ! Hustle them all the time, .and I will help you to do it." Herman and Harry Schwartz also told Toulson that if he "could put anything in the way, such as finding some bad bobbins on the machines of these girls, that they •could be discharged for, to put them on there because they got back to work on the machines." Thereafter, some of the union employees were required to clean the twisting machines which the non-union 'employees operated, although prior to the strike this unpleasant task was performed by the machine operators themselves. Some women union employees were required to lift rails from the machines, :a task formerly performed by men employees. Elsie Hall, the shop chairlady of the Union, was required after August 30 to operate three twisting machines although the non-union girls only operated two. Hall received no additional compensation for operating the additional machine. It is manifest that the respondent, after August 30, proceeded methodically to discriminate against the union employees in order to compel them to abandon the Union. We find that the respondent, by giving the union employees more difficult and less pleasant work than the non-union employees received because of their union affilia- tion and activities, has discriminated against said union employees with respect to the terms and conditions of their employment, thereby discouraging membership in the Union ; that by such acts the re- spondent has interfered with, restrained, and coerced, and is inter- fering with, restraining, and coercing, its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and have led and tend to lead to labor disputes burdening and obstructing .commerce and the free flow of commerce. V. THE REMEDY It is essential in order to effectuate the purposes and policies of the Act that the respondent be ordered to cease and desist from 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain activities and practices in which we have found it to have been engaged, and in aid of such order and as a means for removing and avoiding the consequences of such activities and practices, that the respondent be directed to take certain affirmative action, more particularly described below. We have found that the respondent in many ways has interfered with, restrained, and coerced its employees in the exercise of the rights which the Act has secured to them. It is plain that the re- spondent must cease and desist from such practices, and we shall so order. We also have found that the respondent has persistently refused to bargain collectively in good faith with the Union, as the rep- resentative of the respondent's employees. We, therefore, shall order the respondent to cease and desist from its said refusal, to bargain collectively with the Union as such representative, and if any understanding is reached upon request to embody such under- standing in a written signed agreement.100 We have found that the respondent on June 21, 1937, discrimina- torily laid off Margy Barry, Dorothy Callo, Rae Callo, Elsie Hall, Leona Pallughi, Gladys Plohn, Margaret Rist, Ethel Rogazza, and Margaret Vigno, and discriminatorily discharged Salvatore Corsetti, Martin lannaconne, and Nataline Panarenato.101 Since Barry, Dorothy and Rae Callo, Hall, Pallughi, Plohn, and Vigno were rein- stated by the respondent on or about August 30, 1937,102 to employ- ment which we have not found to be irregular or lacking in con- tinuity, it is unnecessary, and we shall not order, that the respondent offer reinstatement to them. However, Corsetti, Iannaconne, Panarenato, and Rist, while reinstated, were reinstated to employ- ment which was not substantially equivalent to the employment each respectively had enjoyed prior to his or her respective discriminatory lay-off or discharge.103 Accordingly, to effectuate the policies of the Act we shall order the respondent to offer them the full reinstate- ment to which they are entitled, upon the terms, however, more fully set forth below. Rogazza was not reinstated because she was unavail- able when the respondent made its offer after August 30 to reinstate her. Since this offer was in response to the Union's request of that date in her behalf, at a time when the strike had, terminated, we do not feel that it will effectuate the purposes and policies of the Act to 100 Matter of Inland Steel Company and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel and Tan Workers of North America , Lodge Nos 611, 1010, and 1101, 9 N. L. R B. 783; Matter of Globe Cotton Mills and Textile Workers Organizing Comomettee, 6 N L It. B 461, enforced in part in Globe Cotton Mills v. Notional Labor Relations Board, 103 F. (2d) 91 (C. C. A. 5) 101 See Section III C 1. 102 See Section III C 3. 103 See Section III C 3. HARRY SCHWARTZ YARN CO., INC. 1191 require the respondent to make a second offer of reinstatement to her. 114 We shall omit her from among the persons whom the re- spondent will be ordered to offer reinstatement. All of the above employees who were discriminatorily laid off or ,discharged on June 21, 1937, will be made whole for any loss of pay they may have suffered by reason of the illegal termination of their employment. The amount of compensation to be paid them shall not be diminished on account of the strike, for it was the respondent's acts in unlawfully discriminating against their tenure of employment, and its other unfair labor practices, which caused and prolonged the strike.105 With respect to Dorothy Callo, Rae Callo, and Leona Pallughi, the compensation to be paid these em- ployees shall be for the period from June 21, 1937, until the dates of their respective reinstatements by the respondent after August 30, 1937100 The record shows that while the strike was in progress the respondent offered to reinstate Plohn and Rogazza on August 19, Barry and Vigno "during July," and Hall "three or four weeks after the strike." Each of these employees refused such offer and elected to remain with the employees who were seeking by the strike to remedy the respondent's unfair labor practices. By reason of their election to continue with those on strike rather than to return to work, the status of these employees changed upon their refusals of such offers, from employees discriminatorily discharged to employees engaged in a strike induced and prolonged by unfair labor prac- tices.101 Accordingly, the order shall provide that the compensation to be paid to Barry, Hall, Plohn, Rogazza, and Vigno shall cease on the date when each respectively refused such offer of reinstate- ment. We do not find that the respondent unequivocally offered-rein- statement to any of the other employees discriminatorily discharged or laid off on June 21, 1937. With respect to Corsetti, Iannaconne, Panarenato, and Rist, compensation will be ordered, since they were not fully reinstated prior to the hearing, from June 21, 1937, until the respondent's offer of full reinstatement to them, pursuant to the order, or if they have already been reinstated, until the date they received full reinstatement. In all cases a deduction from the com- pensation to be paid will be made on account of the net earnings,b08 if any, of the respective employees to be compensated. 104 Matter of Precision Castings Company, Inc. and Iron Molders Union of North America, Local 80, 8 N L. R. B 879. 105 National Labor Relations Board V. William Randolph Hearst et al, 102 F. (2d) 638 C. C. A. 9). 100 These employees were reinstated, as follows : Dorothy 'Callo, September 1, 1937; Rae Callo, September 3, 1937; and Leona Pallughi September 3, 1937 107 Matter of Harter Corporation and International Assn. of Machinists , 8 N. L R B. 391. 109 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 his or her 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have found that the respondent has not reinstated the follow- ing striking employees employed by it in the week of June 14, 1937:109, Harold Beilan, Angela Borealine, May Campbell, Carmen Carbello,. Catherine Casserly, May Castor, Joseph DePerna, Catherine Hanson,. John Karkowski, Irving Keith, May Kerrigan, Juliette Kilian, Lena Livesy, Alexandra Monsoig, George Perrenod, Eleanor Peters, Vin- cent Rivelli, Gertrude Strubel, and Marie Testa. Since the strike was caused and prolonged by the respondent's unfair labor practices,, we shall, in accordance with our custom in such cases, order the respondent to offer each of these employees who has not since been fully reinstated, as well as to Salvatore Corsetti, Martin lannaconne, Nataline Panarenato, and Margaret Rist, immediate and full rein- statement to his or her former position with the respondent, or to a substantially equivalent position, without prejudice to his or her seniority and other rights and privileges. All of the employees presently working, for the respondent who were hired by it since. June 21, 1937, and were not in its employ during the week of June 14, 1937, shall, if necessary, be dismissed by the respondent to provide employment for the above employees ordered to be offered and who, shall accept reinstatement. If, despite and after a dismissal of ally such employees, there is not sufficient employment immediately avail- able for the employees presently working for the respondent, exclud- ing those dismissed, and for the employees ordered to be offered and' who shall accept reinstatement, then all positions of employment shall be distributed by the respondent among the employees presently working for it, excluding those dismissed, and the employees ordered to be offered and who shall accept reinstatement, in accordance with the- respondent's usual method of reducing its force, without dis- crimination against any employee because of his or her union affiliation and activities, following such a system of seniority or other non-discriminatory procedure as has been heretofore applied by the respondent in the conduct of its business. Those employees, remaining after such distribution for whom no employment is im- mediately available shall be placed by the respondent on a prefer-- ential list, with priority determined among them in accordance with, such system of seniority or other non-discriminatory procedure as= has been heretofore applied by the respondent in the conduct of its: unlawful termination of employment and the consequent necessity of his or her seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Jotiners of America, Lumber and Sawmill Workers Union , Local 2590, 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. ' See Section III C 2. HARRY SCHWARTZ YARN CO., INC. 1193, business, and, thereafter, in accordance with such list shall be offered- reinstatement by the respondent in their former or substantially equivalent positions, as such employment becomes available and.- before other persons are hired for such work.110 Because they were unavailable when the respondent's offer after August 30 to reinstate them was made, Hilda Frasca and Mary Tilki were not reinstated by the respondent. The reasons above mentioned- which have led us to conclude not to require of the respondent that it again offer reinstatement to Rogazza apply equally with respect to the reinstatement of Frasca and Tilki. Hence, they, too, will not be included among those the respondent will be ordered to offer reinstatement. We have found that the respondent discriminated against union employees whom it reinstated after August 30 by refusing to give- them regular and continuous employment, because of their uniom membership and activities. The respondent,will be ordered to cease and desist from such unfair labor practices. We also have found- that the respondent discriminated against 31 named employees, whom it reinstated, in the amount and kind of their work, because- of their union membership and affiliation."' These unfair labor practices the respondent also will be ordered to cease. Moreover, since we have found the respective amounts of money these employees would have earned during the period from September 6 to October 16, 1937, apart from that which they did earn, had the respondent, during said period given each of them following his or her rein- statement an amount of work equal to that which, as an average,. the non-union employees in his or her classification were given, we shall order the respondent to pay to each of said employees, such-- respective amounts of money. We are of the opinion that where employees are paid on an hourly basis, and where, as here, those who- are union members are consistently given less work to perform than those who are non-union employees, for the purpose of discouraging union affiliation and activity, the proper remedy, in effectuating the purposes and policies of the Act and in removing the consequences. of such discrimination, is to require the employer to pay to those of its union employees who were given less work, an amount of money sufficient to place their earnings on a parity with the average earn- ings of the favored non-union employees in their respective occu- pational classification. The consequences of the discrimination will most appropriately be removed and avoided by equalizing the earn- 110 Matter of The Louisville -Refining - Company and , International Association, Ott Field, 'gas Well and Refinery Workers of America, 4 N. L. It. B. 844 ; order enforced In National Labor Relations Board v. The Louisville Refining Company, 102 F. (2d) 678 ( C. C. A. 6). m See Section III C 4. 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ings of the union employees at the level of earnings attained by the non-union employees. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Textile Workers Organizing Committee is a labor organization, within the meaning of Section 2 (5) of the Act. 2. The employees of the respondent at the North Bergen plant, .:except-supervisory, salaried, and clerical -employees -and foremen, constituted and constitute a unit appropriate for the purposes of col- lective bargaining, within the meaning of Section 9 (b) of the Act. 3. Textile Workers Organizing Committee was on June 19, 1937, and at all times thereafter has been, the exclusive representative of all the employees in such unit for the purpose of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with Textile Workers Or- ganizing Committee, as the representative of its employees, on or about June 22, 1937, July 13 and 19, 1937, and August 23, 1937, and ,on each of said occasions, and at all times after August 23, 1937, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire or tenure of employment ,of its employees, and their terms and conditions of employment, thereby discouraging membership in the Textile Workers Organizing 'Committee, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the 'meaning of Section 2 (6) and (7) of the Act. 8. By refusing after August 30, 1937, to reinstate the 24 employees named in the complaint, as amended, or to reinstate Barry, Dorothy and Rae Callo, Elsie Hall, Marie Marotta, Leona Pallughi, Nataline Panarenato, Gladys Plohn, Margaret Rist, and Margaret Vigno to regular and continuous employment, the respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, as alleged in the complaint, as amended. HARRY SCHWARTZ YARN Co., INC. 1195 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, Harry Schwartz Yarn Co., Inc., and its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Textile Workers Or- ganizing Committee, as the exclusive representative of all its em- ployees, at the North Bergen plant, except supervisors, salaried, and clerical employees and foremen ; (b) Discouraging membership in Textile Workers Organizing Committee, or any other labor organization of its employees, by dis- charging or laying off its employees, or any of them, or in any other manner discriminating in regard to hire or tenure of employment of its employees ; (c) Discouraging membership in Textile Workers Organizing Committee, or any other labor organization of its employees, by dis- criminating in regard to earnings of employees, or to the kind of work given employees to perform, or in regard to any other term or condition of their employment; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organisations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purposes 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) Upon request, bargain collectively with Textile Workers Or- ganizing Committee, as the exclusive representative of all its em- ployees at the North Bergen plant, except supervisory, salaried, and clerical employees, and foremen, in respect to rates of pay, wages, hours of employment, and other conditions of employment ; and, if an understanding is reached on any of such matters, embody said understanding in a written signed agreement, if requested to do so by Textile Workers Organizing Committee; (b) Offer to Harold Beilan, Angela Borealine, May Campbell, Carmen Carbello, Catherine Casserly, May Castor, Salvatore Corsetti, Joseph DePerna, Catherine Hanson, Martin Iannaconne, John Kar- kowski, Irving Keith, May Kerrigan, Juliette Kilian, Lena Livesey, Alexandra Monsoig, Nataline Panarenato, George Perrenod, Eleanor Peters, Margaret Rist, Vincent Rivelli, Gertrude Strubel, and Marie -1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Testa, and each of them, who have not since been fully reinstated, immediate and full reinstatement to their former or to substantially -equivalent positions with the respondent, without prejudice to their seniority and other rights and privileges. All of the employees pres- ently working for the respondent who have been hired by it since June 21, 1937, and were not in its employ during the week of June 14, 1937, shall, if necessary, be dismissed by the respondent to provide employment for the above employees to be offered and who shall .accept reinstatement. 112 If despite and after a dismissal of all such employees there is not sufficient employment immediately available for the employees presently working for the respondent, excluding -those dismissed, and for the employees to be offered and who shall -accept reinstatement, then all positions of employment shall be dis- tributed by the respondent among the employees presently working for it, excluding those dismissed, and the employees to be offered and who shall accept reinstatement, in accordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his or her union affiliation and activities, following such a system of seniority or other non-discriminatory pro- cedure 113 as has been heretofore applied by the respondent in the -conduct of its business. Those employees remaining after such dis- tribution for whom no employment is immediately available shall be placed by the respondent on a preferential list, with priority -determined among them in accordance with such system of seniority or other non-discriminatory procedure as has been heretofore applied by the respondent in the conduct of its business, and, thereafter, in accordance with such list, shall be offered reinstatement by the re- spondent in their former or substantially equivalent positions, as such employment becomes available and before other persons are hired for such work; (c) Make whole Margy Barry, Dorothy Callo, Rae Callo, Elsie Hall, Leona Pallughi, Gladys Plohn, Ethel Rogazza, and Margaret Vigno, and each of them, for any loss of pay they have suffered by reason of their respective lay-offs by the respondent on June 21, 1937, by payment to each of them of a sum of money equal to the amount she normally would have earned as wages from June 21, 1937, to the date that the respondent reinstated such employee 114 or that such employee during the strike refused reinstatement,115 without 112 The names of all employees employed in the week of June 14, 1937, are set forth In Board Exhibit 4. 113 By "non-discriminatory" as used in this Order is meant without discrimination, within the meaning of the Act. 114 Dorothy Callo was reinstated on September 1, 1937 ; Rae Callo on September 3, 1937 ; Leona Pallughi on September 3, 1937. 115 Margy Barry refused such an offer of reinstatement during July 1937 ; Elsie Hall, 3 weeks after June 21 , 1937; Gladys Plohn on August 9, 1937; Ethel Rogazza on August 9, 1937 ; Margaret Vigno during July 1937. HARRY SCHWARTZ YARN Co., INC. 1197 :any diminution in the amount thereof on account of said strike, less her net earnings 118 during such period, deducting, however, from the amount otherwise due to each of said employees, monies received by her during said respective period for work performed upon -Federal, State, county, municipal, or other work-relief projects, and pay over the amounts so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or gov- -ernments which supplied -the funds for such work-relief projects; (d) Make whole Salvatore Corsetti, Martin Iannaconne, Nataline _Panarenato, and Margaret Rist, and each of them, for any loss of pay they have suffered by reason of their respective discharges and lay-offs by the respondent on June 21, 1937, by payment to each of them of a sum of money equal to the amount he or she normally would have earned as wages from June 21, 1937, to the date of his or her reinstatement or placement on a preferential list pursuant to para- graph 2 (b) above, or if such employee already has been fully rein- stated by the respondent, then to the date of such reinstatement, without any diminution in the amount thereof on account of said strike, less his or her net earnings 118 during such period ; deducting, however, from the amount otherwise due to each of said employees, monies received by him or her during said respective period for work performed upon Federal, State, county, municipal, or other work- relief projects, and pay over the amounts so deducted to the appro- priate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for such work- relief projects ; (e) Make whole each of the persons, excluding Salvatore Corsetti, Martin Iannaconne, Nataline Panarenato, and Margaret Rist, to be offered reinstatement pursuant to paragraph 2 (b) above, for any loss of pay he or she will have suffered by reason of a refusal by the respondent so to offer him or her reinstatement, in accordance with the said paragraph 2 (b) above, following the issuance of this Order, by payment to each such employee so refused, of a sum of -money equal to that which he or she normally would have earned :as wages during the period from five (5) days after the date of this Order to the date he or she is offered reinstatement or placed upon the preferential list, as required by paragraph 2 (b) above, less his or her net earnings 118 during said period; deducting, how- -ever, from the amount thus to become owed to him or her, monies received by him or her 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 ue See footnote 108. 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Federal, State, county, municipal, or other government or govern- ments which supplied the funds for said work-relief projects; (f) Place on a parity the earnings of the following named em- ployees with the average earnings of non-union employees within their respective occupational classifications, for the period from Sep- tember 6 to October 16, 1937, by payment to each of such named employees, apart from and in addition to any other monies pay- able to such employees under this Order, the following re- spective sums of money : Matilda Alford-$81.48, Margy Barry- $45.48, Pauline Biedenkapp-$17.04, Dorothy Callo-$33.06, Rae Callo-$19.26, Genevieve Dercia-$76.38, Edith Diehl-$4.20, Mar- celle Eitzenhoffer-$52.38, Frances Fiala-$8.64, Josephine Fiala- $12.24, Irene Garton-$14.22, Rose Giordano-$66.48, Molly Gold- stein-$8.43, Elsie Hall-$31.20, Esther Krausner-$5.76, Barbara Laub-$27.30, Betty Leone-$49.20, Florence Luedeke-$38.64, Ann Marotta-$17.40, Marie Marotta-$20.64, Emily Menigaz-$21.54, Leona Pallughi-$13.86, Gladys Plohn-$5.52, Fay Raia-$16.38, Frances Schmale-$12.36, Regina Serafin-$31.74, Helen Tames- $41.40, Edna Testa-$35.04, Emily Testa-$17.40, Ann Zanowick- $16.92, and Margaret Zanowick-$10.80; (g) Immediately post notices in conspicuous places throughout its North Bergen plant, and maintain such notices for a period of sixty (60) consecutive days, stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a), (b), (c), and (d) of this Order, and that it will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), (e), and (f) of this Order; and (h) Notify the Regional Director for the Second Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTIhER ORDERED that the complaint, as amended, in so far as it alleges that the respondent discriminatorily discharged Helen Condor on June 21, 1937, that subsequent to August 30, 1937, it discriminatorily refused to reinstate 24 employees herein named, and that it discriminatorily refused to give Margy Barry, Dorothy Callo, Rae Callo, Elsie Hall, Marie Marotta, Leona Pallughi, Nata- line Panarenato, Gladys Plohn, Margaret Rist, and Margaret Vigno regular and continuous employment, within the meaning of the Act, be, and the same hereby is, dismissed.