Hope Webbing Company

In the Matter of HOPE WEBBING COMPANY and TEXTILE WORKERS ORGANIZING COMMITTEE OF THE C. I. 0., LOCAL No. 14 Case No. C-988.-Decided August 1, 1939 Textile Manufacturing Industry-Interference, Restraint, and Coercion: con- ducting ballot in plant and placing on ballot, name of non-existent organization ; dilatory tactics in negotiating process used as device for destroying outside union and bringing into existence inside union ; lending stimulus to and cooper- ating in the formation of an inside union; attempts to discredit union through newspaper propaganda ; threats to liquidate and move plait-Corn.pany-Donai- nated Union: charges of, dismissed ; election agreement between inside and out- side unions and "certification" of inside union, participated in by agents of the Board and of other branches of the government, given effect in order to effectu- ate the policies of the ' Act ; events prior to election pursuant to such agreement not considered as basis for sustaining allegations with respect to domination of inside union ; evidence of domination after election insufficient to warrant regarding events prior to election as part of course of conduct continued after election-Discnrimination: discharges and refusals to reinstate; charges of, dis- missed as to five and sustained as to two-Back Pay: awarded two employees discriminated against ; not to include period between date of Intermediate Re- port and date of Order because of Trial Examiner's recommendation to dismiss. Mr. Bernard J. Donoghue, for the Board. Hinckley, Allen, Tillinghast cC Wheeler, by Mr. Harold A. An- drews. and Mr. Isadore Paisner, of Providence, R. I., for the re- spondent. Mr. Edward S. Brackett, Jr., of Providence, R. I., for the N. F. W. U. Mr. Alfred Udoff, of New York City, for the T. W. O. C. Mr. Robert Burstein, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by Textile Workers Organizing Committee of the C. I. 0., Local No. 14,1 herein called the T. W. O. C., the Na- tional Labor Relations' Board, herein called the Board, by A. Howard 'Referred to in the charge as Textile Workers Organizing Committee of the C. I. 0. 14 N. L. R. B., No. 5. 55 190935-40-vol. 14-5 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Myers, Regional Director for the First Region (Boston, Massachu- setts), issued its complaint dated January 22, 1938, against Hope Webbing Company, 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), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act,. 49 Stat. 449, herein called the Act. Copies of the complaint, accom- panied by notice of hearing, were duly served upon the respondent, the T. W. O. C., and Narrow Fabric Workers' Union, herein called the N. F. W. U. In respect of the unfair labor practices, the complaint alleged in substance (1) that on or about April 21, 1937, the respondent dis- charged and thereafter refused to reinstate Armand D'Agostino, and at various times during the month of August 1937 discharged and thereafter refused to reinstate Albert D'Agostino, Carl Pacheco, Julio Merlin, and John Madeiros for the reason that they had assisted the Union and had engaged in concerted activities with other em- ployees of the respondent for the purpose of collective bargaining and other mutual aid and protection; (2) that prior to June 6, 1937, and thereafter, the respondent encouraged, sponsored, _dominated, and interfered with the formation and administration of the N. F. W. U., a labor organization, and contributed financial and other support to it; and (3) that by various other acts the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On January 27, 1938, the N. F. W. U. filed with the Regional Di- rector a written motion to intervene which alleged in substance that the N. F. W. U. was the sole bargaining agency for the employees of the respondent as a result of a consent election held on June 28, 1937, pursuant to an agreement between the N. F. W. U. and the T. W. O. C., under, the auspices of agents of the Board, the United States Conciliation Service, and the Rhode Island State Department of Labor. The motion was granted by the Regional Director on January 28, 1938. The respondent filed an answer dated January 29, 1938, admitting that the respondent causes and has continuously caused large quanti- ties of raw materials used in its operation and large quantities of the products manufactured by it to be transported in interstate commerce, denying that the respondent had engaged in or was engaging in the alleged unfair labor practices, and requesting that the complaint be dismissed. In addition the answer averred that by reason of the election of June 28, 1937, and the "certification" of the N. F. W. U. as the exclusive bargaining agent for the employees of the respondent, the T. W. 'O. C. and the'Board were forever estopped, precluded, and HOPE WEBBING COMPANY 57 barred from asserting that prior to such certification the respondent dominated and interfered with the formation and administration of the N. F. W. U. Pursuant to the notice of hearing which accompanied the com- plaint, a hearing was held at Providence, Rhode Island, commencing on January 31, 1938, and concluding on February 17, 1938, before Samuel H. Jaffee, the Trial Examiner duly designated by the Board. The Board, the respondent, and the N. F. W. U. were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to produce evi- dence bearing upon the issues was afforded all parties. Early in the hearing, counsel for the Board moved to amend the charge and complaint to include the names of two additional em- ployees, Minnie Taccone and James Healey, who were allegedly dis- charged and refused reinstatement in violation of the Act. The mo- tion was granted over the objections of counsel for the respondent. The ruling is hereby affirmed. Thereafter the respondent filed an answer, dated February 11, 1938, denying the allegations of the amendments to the complaint and requesting that the complaint as amended be dismissed. At the commencement of the hearing, counsel for the respondent objected to the admission of any testimony bearing on the issue of domination of the N. F. W. U. prior to the election of June; 28, 1937. The Trial Examiner ruled such testimony to be admissible for the purpose of throwing' light upon the situation after the election, in so far as that situation might be the result of a continuous course of conduct 'on the part of the respondent, but not for the purpose of affecting the results of the election. At the conclusion of the Board's case, the Trial Examiner granted a motion by counsel for the Board to remove the limitation with respect to the admission of such testi- mony, and denied the motion of counsel for the respondent and the N. F. W. U. to strike out entirely the testimony relating to matters prior to Jifne 28, 1937. The motion to strike was renewed at the close of the hearing. The Trial Examiner reserved decision on this motion and thereafter, in his Intermediate Report, denied it. At the conclusion of the Board's case, the respondent and the. N. F. W. U. moved that the complaint be dismissed. The motions were. denied. The same motions were renewed at the close of the hearing at which time the Trial Examiner reserved ruling thereon. The re- . spective parties were granted leave by the Trial Examiner to file. briefs with him. within 14 days after the close of the hearing. The respondent and the N. F. W. U. availed themselves of this opportunity and filed briefs. On September 8, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon all parties, finding 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and. (2) of the Act but not within the meaning of Section 8 (3) of the Act, and recommend- ing that the respondent cease and desist from the unfair labor prac- tices so found, withdraw recognition from the N. F. W. U. and dis- establish it as representative of the employees of the respondent, and that the complaint in so far as it alleged that the respondent dis- criminatorily discharged and thereafter refused to reinstate the seven named employees, be dismissed. We have reviewed the various rulings made by the Trial Examiner during the course of the hearing on motions and on objections to the admission of evidence and find that no prejudicial errors were com- mitted. The rulings are hereby affirmed. Exceptions to the rulings and the findings of the Trial Examiner were filed by the N. F. W. U. and the respondent on October 24 and 25, 1938, respectively. On October 27, 1938, the T. W. O. C. filed exceptions to certain of the findings of the Intermediate Report. Thereafter, pursuant to permission granted by the Board, the respond- ent, the T. W. O. C., and the N. F. W. U. filed briefs in support of their exceptions. A hearing for the purpose of oral argument on the exceptions was scheduled to be held before the Board on December 8, 1938. On December 1, 1938, the respondent moved the Board to "strike from the record the purported statements of exceptions" filed by the T. W. O. C. and to "prevent" the T. W. O. C. "from objecting to any matter or matters contained in the Intermediate Report or record in this cause," for the reason that the T. W. O. C. had not served its exceptions upon the respondent immediately upon filing them as required by Article II, Section 34, of National Labor Relations Board Rules and Regula- tions-Series 1, as amended. The respondent further moved that, in the event that the aforesaid motions were denied, the dates for the filing of briefs and for oral argument be postponed at least until Jan- uary 16 and 23, 1939, respectively. On December 3, 1938, the Board issued an order denying the first two motions but postponing the dates for filing briefs and oral argument to December 19 and 20, 1938, respectively. Exceptions to the denial of the motions were filed by the respondent. The respondent and the T. W. O. C. filed supplemental briefs. On December 20, 1938, a hearing for the purpose of oral argu- ment was held before the Board in Washington, D. C. The respondent and the T. W. O. C. were represented by counsel at the oral argument and participated in it. The Board has considered all the exceptions of the respective parties to the Intermediate Report, and in so far as they are inconsistent with HOPE WEBBING COMPANY 59 the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a Rhode Island corporation having its plant and principal office at Pawtucket, Rhode Island. It is engaged in manu- facturing and distributing narrow fabrics. It has three affiliates, American Webbing Company, Anchor Webbing Company, and San- ford Narrow Fabric Company, all of which are sales organizations located at the respondent's principal office. The raw materials, consisting principally of cotton yarn, used by the respondent in the course of manufacture are shipped to the re- spondent's plant from States other than the State of Rhode Island, including New Hampshire, Connecticut, Massachusetts, North Caro- lina, South Carolina, Georgia, and Alabama. During the year 1937, the respondent sold and shipped to points outside Rhode Island over 90 per cent of its entire output, which exceeded in bulk 1,000,000 pounds of cotton yarn and aggregated in value more than $1,000,000. The respondent sells its products to wholesalers and manufacturers in approximately 25 States. In addition to its principal office, it main- tains sales offices in New York City and Chicago, Illinois. All ship- ments, however, are made from the respondent's plant. II. THE ORGANIZATIONS INVOLVED Textile Workers Organizing Committee of the C. I. 0., Local No. 14, is a labor organization affiliated with.the Committee for Industrial Organization, admitting to membership employees of the respondent and of other manufacturers of narrow fabrics in Rhode Island. Narrow Fabric Workers' Union is an unaffiliated labor organization admitting to membership all the employees of the respondent except those having the power to hire or discharge. III. THE UNFAIR LABOR PRACTICES A. The history of events The T. W. O. C. began organizational activities among the respond- ent's employees early in April 1937, at which time a committee of the respondent's, employees, including Armand D'Agostino, Albert D'Agostino, Tony Falco, Carl Pacheco, Julio Merlin, and James 60 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD Healey, was appointed by officials of the. T. W. O. C. to undertake the task of enlisting members among the respondent's employees. Shortly thereafter, the employees who were affiliated with the T. W. O. C., pursuant to instructions from T. W. O. C. officials, elected a negotiating committee, composed of about 32 representatives from the various departments of the respondent's plant. On April 28, 1937, Weldon Caie, a T. W. O. C. organizer, tele- phoned Charles A. Horton, president and general manager of the respondent, and requested a conference for the purpose of collective bargaining. A conference between Caie and Horton was held on April 30. Horton challenged Caie's claim that the T. W. O. C. represented a majority of the respondent's employees and requested proof thereof. Caie gave none. Horton agreed, however, that the T. W. O. C. had the right to bargain for its members. The con- ference adjourned with the understanding that Caie would formulate demands and that thereafter a further meeting would be held. On the same day copies of a "Notice to Employees," prepared and signed by Horton, were posted on bulletin boards throughout the plant. In this notice Horton informed the employees of the refusal of the T. W. O. C. representatives to substantiate their claim to represent a majority of the employees and of his unwillingness "to discuss the affairs of our employees without first knowing that they are rightly represented." The notice stated that all employees would be treated with equal consideration "whether the majority or the minority belong to no union whatsoever, or has joined C. I. O. or any other organization, or has named a committee within the plant." The no- tice stated further : "We will undoubtedly need the help of our employees to determine who represents who, and we hope to arrange for a secret ballot to be cast early during the coming week." This notice was read at a meeting of the respondent's employees held by the T. W. O. C. on May 1. T. W. O. C. members were instructed not to participate in any ballot conducted by Horton. Horton testified that subsequent to the posting of the notice he asked various supervisory employees whether they believed that the T. W. O. C. represented a majority of the employees and received a negative reply in all instances. Within the next few days, Horton prepared a circular which set forth the purpose of the Act "to pro- tect the exercise by workers of full freedom of association, self- organization and designation of representatives of their own choos- ing"; quoted the provision of the Act defining the term "labor organization"; and continued as follows : It is your choice and your responsibility. It is clear that no one need submit to pressure from outside interests, and no man or woman need pay dues or assessments HOPE WEBBING COMPANY 61 for the right to work or the right to choose their own repre- sentatives. This is not an election.-it is not a contest-it is merely an appeal to you to serve your own best interests by telling the Management what you want in the way of representation. We hope, urge, and expect every employee to use this secret ballot system to express their, opinion. The Management will be guided by the count. Attached to the circular was a ballot in the following form : May 6, 1937 0. I. C. WHICH DO YOU WANT (Own Independent Com- mittee) AS YOUR COLLECTIVE BARGAINING AGENCY? or C. I. 0. (Committee for Industrial Organization) Show your choice by a X in one square. Tear off slip and put in box. At the hearing, Horton admitted that there was no such organiza- tion as the "0. I. C." in existence at the plant and was unable to advance any definite reason for its place on the ballot, although he asserted that "there is no particular reason why they [the em- ployees] shouldn't have their own independent committee if they wanted it." He testified that his instructions as to the drafting of the ballot were "to get down to alphabets so everybody will un- derstdnd it," and that the letters "0. I. C." were "coined by one of the young men in the office." The distribution of the circulars and the ballots took place on May 6 and was participated in by George Lord, the superintendent, and several of the respondent's supervisory employees called over- seers. The employees were required to remain at their places of work while the ballots were being cast. Lord warned Tony Falco, one of the employees : "Between now and the time you cast your ballot, don't leave your looms, because you will get fired." A total of 428 ballots were cast, 177-in favor of the "0. I. C.," 175 in favor of the C. I. 0., and 76 blank. As a result of the respondent conducting the ballot, a sit-down strike ensued the same day in several of the departments. On the following day, May 7, an agreement was entered into between the respondent and the T. W. O. C., whereby the respondent agreed to negotiate with representatives of the T. W. O. C., in the presence 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a representative of the United States Department of Labor, con- cerning wages, hours, and other conditions of employment , and not to operate the plant or move any goods or machinery until the con- clusion of negotiations ; and the T. W . O. C. agreed to induce the respondent's employees to vacate the plant on the same day. The sit-down strike terminated immediately after the signing of the agreement on May 7. The strike continued outside the plant. Thereafter a series of conferences between officials of the respond- ent and of the T. W O. C. were held. They were also attended by about 12 members of the T. W. O. C. negotiating committee who did not, however, take any part in the discussions . At the first conference, which took place on May 10, the T. W. O. C. presented as a basis for negotiations a list of departmental demands and a contract providing, in part, for recognition of the T. W. O. C. as exclusive bargaining agency for the respondent 's employees, a 20- per cent increase in pay, and a procedure for the adjustment of grievances. At the next conference on May 17, Horton read a state- ment in which he rejected the demands and contract presented by the T. W. O. C. as being unreasonable , but asserted his willingness to consider further demands supported by "facts and figures." As. a result of the insistence of Joseph Salerno, assistant director of the T. W. O. C., that the respondent make a counter -offer, Horton, at the conference of May 19, presented a proposed agreement which, however, contained in effect no counterproposals but provided in substance merely for the reopening of the plant , reinstatement of the strikers, and continuation of negotiations . It was rejected by the T. W. O. C. as one-sided. Salerno's suggestion , during the course of the same conference, that the employees return to work and the differences be referred to an impartial arbitrator met with Hortoh's refusal. On about May 21 Horton rejected as unacceptable Salerno's further proposed agreement providing for exclusive representation by the T. W. O. C., a 15-per cent wage increase, elimination of strikes and lock-outs, and arbitration of unsettled disputes. On May 26 and 28 two so-called "off the record " conferences took place. Nothing was accomplished . At the May 26 conference Salerno stated that the T. W. O. C. would accept recognition to the extent of its membership and would agree to a 10-per cent wage increase or to submit the wage question to arbitration. Horton refused to commit himself , stating that he, would submit the question to the respondent's board of directors . At the meeting of the board of directors later in the same day, Horton merely asserted his position as being unalterably opposed to arbitration. There is no evidence, nor does Horton allege, that he made any recommendation with re- spect to the settlement of the labor dispute. At the May 28 confer- HOPE WEBBING COMPANY 63 ence Salerno offered. to accept a contract similar to one which had theretofore been drafted by one of respondent's attorneys for an- other company. Horton instructed Hinckley, the respondent's attor- ney present at the conference, to draft such a contract. A few days later Horton told Hinckley not to "bother about that" for the reason that in the meantime Salerno had issued to the press a statement, allegedly contrary to fact, that the respondent had agreed to make an offer to the T. W. O. C. Shortly after the May 28 conference, there started a movement for the formation of an independent union. F. L. Smith, one of the respondent's salesmen,2 testified that the duration of the strike caused him to become "jittery" about his job and that, on about May 31, the notion of organizing a new union for the office employees came to him "kind of out of the sky." He thereupon sent to a printer an order for the printing of 50 application cards in an organization which he labeled the "OIC." Smith testified that he knew of the "OIC" ballot and had therefore adopted the same designation for his contemplated union. On June 1 Smith visited Albro Davis, the plant engineer in charge of the maintenance of the plant and all the experimental work performed in the plant, and possessing power to hire and dis- charge, at his office and was informed that Coia, one of the re- spondent's employees, had told him that a certain group of Italian employees were becoming dissatisfied with the T. W. O. C. and were initiating a movement to form a committee for the purpose of con- ferring with Horton. Smith then informed Davis that he had "just started a little movement of `his own."' Chester Frost, the respondent's assistant secretary, was present at this meeting but, according to Smith's testimony, took no part in the conversation. On the afternoon of the same day, three of the respondent's over- seers, Thomas Bruscini,8 William Varney, and Ernest Fontaine, stopped across the street from the T. W. O. C. headquarters and engaged a number of employees in conversation. According to the testimony of John Madeiros,. Carl Pacheco, and Tony Falco, em- ployees of the respondent who testified on behalf of the Board, Fon- taine and Varney, in substance, told the employees that Horton would never recognize the T. W. O. C. and urged them "to get to- gether and get a committee and go up and see Mr. Horton and drop the C. I. 0., because if you really intended to stick by the C. I. O: Horton was going to liquidate and you would be out of a job." 2 Smith , although a salesman , spent most of his time at the office. His yearly salary during 1936 and 1937 aggregated $3,300. During the same years he received bonuses of $500 and $350, respectively. 2 Also referred to as Brucini. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Varney failed to testify, thus leaving the statements attributed to him uncontradicted on the record. Fontaine testified that the em- ployees were discussing the off-the-record conferences between the respondent and the T. W. O. C. officials and that he told them, "Well, what are they doing for you? . . . so far they haven't done a thing . . . why don't you get together and do something for your- selves ?" He did not expressly deny the other statements attributed to him. We find that Varney and Fontaine did in fact make the statement testified to by Madeiros, Pacheco, and Falco. Shortly thereafter, Falco and Walker, another employee, disturbed by the remarks of the overseers; sought to obtain information from Davis concerning the off-the-record conferences. Davis was unable to comply with their request but arranged a meeting for them with Horton at 7:30 that evening. At Davis' house, where the meeting took place, Horton told them about the conferences and the proposed agreement which was to be drafted by the respondent's attorney. He remarked that he would not sign the agreement and that he was pre- pared to liquidate the plant if he had to recognize the C. I. O. He further told them that they were perfectly free to join any organiza- tion they wished, adding, however, that he saw no reason for their paying outsiders 25 cents a week, when they could have a union of their own and not be required to pay any dues at all. After further conversation, Davis requested Horton to leave the house, explaining to him that he intended to invite, over two men from the office who were organizing a union of their own. As soon as Horton left, Davis telephoned Smith and Frost and informed them of the presence of Falco and Walker. He then remarked to Falco, "A fellow with your ability to lead the Italian people, if you had put forth as much energy in behalf of the Hope Webbing Company as you did in other direc- tions, you might have gotten somewhere, the same as Tom Bruscini did." . Upon his arrival Smith outlined to Falco and Walker his plans for the organization of a new union and informed them of the cards which he had ordered. Falco remarked that the designation sounded too much like "C. I. 0." and suggested that it be changed to the "N. F. W. U." Smith thereupon telephoned the printer and in- structed him to change the name on the cards accordingly and to have them ready early in the morning. He then requested Falco and Walker to cooperate with him by urging other employees to join the new union. Davis indicated his willingness to permit the use of his home for the formation of committees and offered to furnish Falco with a tankful of gasoline for his automobile to be used in soliciting employees to join the new organization. Davis also prom- ised to have pamphlets mimeographed on the respondent's mimeo- graph machine and ready for distribution in a short time. On the HOPE WEBBING COMPANY 65' following morning Falco broached the idea of the new organization to several of the employees congregated near the plant but had little success. He then met Gabriel. De Feo, another employee, and together they went into the plant to get their tools. They encountered Davis, who pursuant to Falco's request, narrated to De Feo the events of the night before, commenting that "the best thing for [them] to do was to get in this company union, and [they] would have work, because Mr. Horton intended to liquidate the plant otherwise." De Feo was interested, and in the afternoon of the same day he asked Davis for an introduction to Smith. In the evening Davis and Smith drove out to the farm of Sam Cistola, a machinist at the plant, where Davis introduced De Feo and several other employees to Smith. The em- ployees volunteered to solicit members in the N. F. W. U. and were given cards by Smith. A further organizational meeting was held on the evening of June 3 at Smith's house, attended by about half a dozen employees who were also given cards and urged to solicit members among their friends in the plant. Also, overseers of the respondent participated directly in the membership campaign. Arthur Mitchell, the general overseer in the lacquer department, testified on direct examination by counsel for the Board that on or about June 3 he drove Frank Humes, another overseer, to the homes of several employees for the purpose of soliciting their membership in the N. F. W. U. On cross-examination Mitchell testified that Humes visited the employees in an endeavor to persuade them to return to work. However, on further examination by the Trial Examiner, Mitchell, in substance, affirmed the truth of his testimony on direct examination. He testi- fied that Humes did not directly divulge, to him his purpose in visiting the employees but gave him cause to believe that it was to solicit mem- bers in the N. F: W. U., because he carried with him cards similar to the N. F. W. U. membership cards. Humes was not called upon by the respondent to testify as to his version of the incident. We believe that although one of Humes' reasons for visiting the em- ployees may have been to urge them to return to work he was also motivated by a desire to enroll them in the N. F. W. U. and that he solicited them to join the N. F. W. U. Conferences between officials of the respondent and of the T. W. O. C. were resumed on June 4. On that day Salerno reiterated his proposal to send all the strikers back to work, if Horton would submit to arbitration. Horton rejected it as unacceptable. He re- fused to make a counterproposal, asserting that it was against his policy to engage in "horse trading" and that it was incumbent upon the T. W. O. C. to continue making demands which he was at liberty, to accept or reject. Another conference was held on June 71 Salerno, unable to achieve any results through his own efforts, at this 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conference, turned matters over to Thomas McMahon , the State Director of Labor, who participated in the negotiations at the request of the Governor and of J. L. Bernard, a United States Conciliator. Salerno stated that any reasonable settlement would be acceptable to the T. W. O. C. The evidence establishes that after considerable discussion the parties had agreed upon certain terms which, at the close of the conference, were typed in the form of an agreement. These terms included, among other things, recognition of the T. W. O. C. as the bargaining representative for its members and "for those who may become members from time to time," reinstatement of strikers without discrimination on June 14 , negotiation of all. issues in dispute at four conferences between June 14 and July 2, the elimination of strikes and lock-outs , and the holding of an election under the supervision of the Board to determine the representatives of the respondent 's employees for the purpose of collective bargain- ing. Although not embodied in the agreement , it was understood that the T. W. O. C. would appear on the ballot to be prepared by McMahon and Bernard. It was further understood that the terms thus agreed upon would be submitted to the T. W. O. C. members for their approval. On the following morning a committee of the N. F. W. U. communicated with Horton, and informed him that the N. F. W. U. represented over 100 members and desired to bargain for its members and to participate in the contemplated election. Thereupon Horton dispatched a letter to Bernard advising him that the N. F. W. U. had made a request of him to be placed on the ballot and that he concurred in such request . In. the meantime the T. W. O. C. members had approved the proposed agreement. How- ever, when the T. W. O. C. officials came to the conference on', the_ same day . prepared to sign the proposed agreement , Horton denied having agreed to anything. On June 10 representatives of the N. F. W. U . again communicated with Horton and demanded a 10-per cent wage increase and a re- sumption of operations. On June 11 they were summoned by Horton and presented with a proposed agreement which had been drawn up by the respondent's attorneys. An agreement was signed the same day granting in substance all the demands of the N. F. W. U. It provided, in part, for recognition of the N. F. W. U. as bargaining agency for such of the employees "as are or from . time to time shall be" members of the N. F. W. U., a 10-per cent wage increase, and the resumption of operations on June 14. At this time the N. F. W. U. had a membership not exceeding 125. In the meantime Horton had been advised by his attorneys that if he reached an impasse in his negotiations with the T. W. O. C. he could legally terminate negoti- ations. On June 12 he informed the T . W. O. C. representatives of HOPE WEBBING COMPANY 67 the agreement with the N. F. W. U. and announced to them his determination to discontinue conferences with the T. W. O. C., on the ground that an impasse had been reached. On the same day Horton inserted advertisements in the local newspapers urging the strikers to return to work on June 14 under the agreement with the, N. F. W. U. The respondent's attempt to resume operations on June 14 failed. About 150 employees returned to work, but they were not sufficiently distributed in the various departments to enable the plant to operate. Thereupon Horton, in a statement to the press, announced that "if the strikers didn't respond to the call back to work . . . in a `reason- able time' he would begin hiring new employees provided the State and city afforded protection," and warned that otherwise "we shall close down indefinitely and I will recommend to the stockholders that we liquidate. And that's no bluff . . ." This was followed by state- ments given by Horton to the press on June 16 and 17 to the effect that he had been invited to establish the plant in several cities and that he contemplated calling a meeting of the stockholders to deal with the question of possible liquidation. On June 17 the respondent sent letters to all its employees instructing them to remove their per- sonal belongings from the plant. On the same day the stockholders were notified of a special meeting to be held on June 24 for the pur- pose of acting "upon the recommendation that the business of the company be liquidated, in view of the impossible situation caused by the activities of the C. I. O...." In the meantime, as a result of renewed efforts on the part of Bernard and McMahon to terminate the strike and thus avoid liquida- tion, a tentative agreement was reached between the T. W. O. C. and the N. F. W. U. for the holding of an election, and both organiza- tions petitioned the respondent to resume operations on June 21. A conference was held on June 19 at which Attmore Tucker, the respond- ent's treasurer and assistant general secretary, in Horton's absence, read a statement prepared by the latter. In the statement Horton emphasized that the stockholders had to act on the recommenda- tion to liquidate, suggested that in the process of liquidation it might be advisable to fill pending orders and thus furnish work to a number of employees at least for a couple of weeks, offered to cooperate in the contemplated election, and concluded that if opera- tions were resumed the 10-per cent increase provided in the agree- ment with N. F. W. U. would be granted to all the employees. After reading the statement Tucker said that he had no authority to negotiate, and the conference closed. A few days later Horton refused to meet the T. W. O. C. representatives and announced that 68 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD "there will be no more conferences with C. I. 0." At the same time he released to the press the following statement : I have carefully read all of several reports on the conference at this office last Saturday morning with Messrs. Salerno and Mayo [Joseph Mayo, assistant C. L'0. director] of C. I. O. and Department of Labor. Conciliator J. L. Bernard, and have nothing more.to say than that my patience with C. I. O. is com- pletely exhausted and I shall have nothing more to do with them. There will be no more conferences. The experiences of the past few weeks have proven beyond a shadow of a doubt that C. I. O. is not responsible and not reliable. Their agents are breeders of discontent and even vio- lence. They are, generally speaking, a tricky lot and it is nothing short of astounding that the authorities should permit their unbelievable activities to go unrestrained. The fate of the company and its majority of workers who want to work rests entirely with the stockholders at their meet ing to be held this week, and with the municipal, state and federal authorities in the matter of decent maintenance of law and order and the protection of life, property and pursuit of happiness to which all Americans are entitled. At the meeting of the respondent's stockholders on June 24, Horton read a statement outlining his version of some of the recent events and concluding in part as follows : We have now been closed for seven weeks, despite all our efforts with C. I. O. to continue negotiations while the plant was operat- ing instead of the workers loafing, and there is no immediate prospect for starting up . . . with the prospect of a depressed state of business and no real encouragement as to when we can open the plant, and if opened under the domination of C. I. O. it will be extremely difficult to operate the business profitably, I recommend that the interests of the stockholders can best be served by liquidating the business . . . It is a most reluctant decision . . . but it seems to me the better part of judgment to bow to the inevitable, when the forces unfortunately rampant in this country are bent upon the very destruction of all industry, and the forces of law and order throughout the land seem to be indifferent, to express it mildly, toward presenting any opposition to the evil forces, and in offering no protection to the great majority of that better element that desires to carry on. The meeting adopted a resolution authorizing the board of directors, either to liquidate or to move the plant outside the State, and direct- HOPE WEBBING COMPANY 69 ing them to decide upon a course of action within 1 month from the date of the meeting. Horton immediately announced to the news- papers the action taken by the stockholders. On June 25 a meeting was held at the State House attended by committees of the T. W. O. C. and the N. F. W. U., Bernard, Mc- Mahon, and Joseph T. Cahir, Rhode Island Deputy Director of Labor, and Edward Schneider and Louis R. Becker, the Board's Regional Attorney and Field Examiner, respectively.4 The, respondent was not represented. At the outset of the meeting the N. F. W. U. com- mittee expressed the necessity of taking steps to prevent the threatened liquidation of the respondent's business, and to save the jobs of the employees. The discussion then turned to the question of holding an election. Salerno maintained that the N. F. W. U. was company dominated and that its appearance on a ballot at an election would not serve to render it a legitimate labor organization. An agreement was finally concluded whereby it was agreed between the N. F. W. U. and the T. W. 0. C. that an election would he held at a place to be determined by McMahon and Bernard; that both organizations would be on the ballot, the form of which was set out; that all the employees on the pay roll of the week of May 6 would, with certain exception, be eligible to vote; and that the election would be conducted "under the supervision of the Labor Department of the State of Rhode Island, conciliation service of the United States, Department of Labor, and the National Labor Relations Board, First Region." The agreement, drafted for the most part by Becker, was signed as follows : HARRY STEAD, Narrow Fabric Workers Union. JOSEPH SALERNO, C. I. 0. Textile Workers Organizing Committee. THOMAS F. MCMAHON & JOSEPH T. CAHIR, Department of Labor, R. I. J. L. BERNARD, Conciliation Service, U. S. Department of Labor. EDWARD SCHNEIDER, Louis R. BECKER, National Labor Relations Board. 4 The labor dispute between the respondent and the T . W. O. C. had been called to the attention of the Board's Regional office on June 14 when the T. W. O. C. filed with the Regional Director for the First Region a charge in which it was alleged in substance that the respondent sponsored and participated in the formation of a committee known as the "0. I. C.," was prompting; and directing the activities of the N . F. W. U., had consistently refused to bargain with the T. W. O. C., and had caused the circulation of false and malicious rumors for the purpose of destroying the T . W. O. C. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No one at the conference manifested an intention not to abide by the results of the election or to attack the legality of the N. F. W. U. in the event that it won. At the hearing Salerno admitted that he entered the agreement in good faith and intended to abide by the re- sults of the election, although he asserted that he had no choice but to sign the agreement since the alternative meant liquidation and loss of jobs for 600 employees, and that voting in an election held under such circumstances meant "going to vote with the sword of Damocles on your neck." The election was held on June 28 as provided in the agreement and resulted in a victory for the N. F. W. U., Immedi- ately after the election the following statement, signed by "Edward Schneider, Attorney for National Labor Relations Board ; J. L. Ber- nard, Conciliation Service-U. S. Dept. of Labor; Thomas F. Mc- Mahon, Director of Labor," was issued from the office of the State Department of Labor : To WI3oM IT MAY CONCERN : As a result of a poll of the employees of the Hope Webbing Company, held this day under the auspices of the National Labor Relations Board, the U. S. Department of Labor Conciliation Service and the Rhode Island State Department of Labor, the Narrow Fabric Workers' Union is hereby declared winner and certified as the exclusive bargaining agent for the employees of the Hope Webbing Company. On June 29 Salerno filed with McMahon and Bernard a protest of the election, but, apparently, no action was taken with respect thereto. Salerno contended that (1) as a result of the threats of liquidation disseminated through the newspapers and in other ways, many of the employees voted for the N. F. W. U. in the belief that a vote.in favor of the T. W. O. C. would jeopardize their jobs; and (2) that there were irregularities in the conduct of the election itself. In support of the second contention evidence was introduced to show that the polling place, the plant of -the Smith Webbing Company, was unsuitable in that it carried a big sign announcing a "Liquidation sale"; that Attinore Tucker was present at the polling place contrary to the terms of the election agreement; and that Frost and Fontaine were standing across the street from the polling place during the election. The evidence, however, shows that the polling place was secured by McMahon pur- The results of the balloting were as follows : Total number eligible-------------------------------------------------- 552 Total number of ballots cast------------------------ ------------------- 541 Total number of votes for the N. F. W. U-------------------------------- 287 Total number of votes for the T. W. 0. C- ------------------------------- 243 Number of ballots challenged -------------------------------------------- Number of defective ballots------ --------------------------------- 9 HOPE WEBBING COMPANY 71 suant to the agreement and that no one voiced any objection to it prior to the election, and that the presence of Tucker was necessary to take care of the respondent's pay roll. There is no evidence that the pres- ence of any foreman or officials of the respondent tended to impede the election or to coerce any of the employees into voting for the N. F. W. U. On the whole the election was conducted in an orderly manner and with dispatch. On the afternoon of June 28 the respondent and the N. F. W. U. entered into an agreement pursuant to which the respondent reinstated the suspended agreement of June 11 referred to above, subject to the resolution of the stockholders on the question of liquidation or removal of the plant, and recognized the N. F. W. U. as sole bargaining agency for its employees. On July 30 the agreement was extended until December 31, 1937, subject, however, to a further resolution of the respondent's board of directors that the respondent's officers "con- tinue operations of the plant and the business of the company until otherwise ordered by this board of directors and in the meantime to continue to investigate the invitation and opportunities to move the business of the company." On October 29 Horton refused to grant the demand of the N. F. W. U. for a closed shop, but agreed to give preference to members of, the N. F. W. U. "in the necessary discharge or layoff of help, and in the employment of new help, and reinstate- ment of old help." On December 17 a new contract was entered into between the respondent and the N. F. W. U. to be in effect for the entire year 1938. It reestablished, in substance, the previous arrange- ment, but made no reference to the possibility of liquidation or removal of the plant. B. Interference, restraint, and coercion The events between May and June 28, 1937, set forth above, clearly reveal the unlawful course of conduct embarked upon by the respond- ent to frustrate the organizational activities of the T. W. O. C. and to dictate to its employees the choice of their, bargaining representa- tives. Shortly .after it became aware that the T. W. O. C. had gained a foothold among the employees, the respondent showed its antago- nistic attitude to outside unions and attempted .to prejudice the minds of the employees against the T. W. O. C. by issuing the circular of May 6 in which it pointed.out that "no one need submit to pressure from outside sources" or "pay dues or assessments for the right to work or the right to choose their own representatives." By conducting the ballot in its plant and by placing on the ballot, attached to the circular, the "0. I. C.-Own Independent Committee," a non-existent organiza- tion, the respondent indicated in unmistakable terms what course it 190935-40-vol. 14-6 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intended the employees to pursue, namely, the formation of an inside union. Although the respondent, pursuant to the agreement of May 7, met repeatedly with T. W. 0. C. representatives, received proposals, and accorded such proposals ostensible consideration, an analysis of this conduct in light of all the circumstances compels the conclusion that the respondent did not negotiate with a bona fide intent of reaching an agreement, but negotiated with an intent only to delay and post- pone a settlement and that it used the negotiating process as a de- vice for destroying the T. W. 0. C. and bringing into existence an organization modelled to comply with its desires. Throughout most of the conferences with the T. W-0. C. the respondent not only sys- tematically rejected every T. W. 0. C. proposal but also persistently declined to make any real counterproposals; and, although at one or two conferences the respondent apparently agreed to certain pro- posals, it thereafter repudiated them. In marked contrast is the treat- ment which the respondent accorded to the N. F. W. U. Shortly after the N. F. W. U. made its appearance on the scene, and at a time when it was not yet fully organized and had a membership of not more than 125, the respondent summoned the representatives of the N. F. W. U. and signed an agreement granting in substance all their demands. Immediately thereafter the respondent announced its de- termination to discontinue negotiations with the T. W. 0. C., attempt- ing to justify its conduct by the pretext that an.impasse had been reached. Although in the absence of allegations thereof in the com- plaint, we cannot find that the respondent refused to bargain col- lectively with the T. W. 0. C. within the meaning of Section 8 (5) of the Act, nevertheless, it is plain that the tactics employed by the respondent in dealing with the T. W. 0. C., particularly when con- sidered in light of the contrasting treatment given the N. F. W. U., constituted interference, restraint, and coercion of the respondent's employees in the exercise of their right to self-organization and col- lective bargaining. The respondent's pronounced favoritism for the N. F. W. U. is not surprising, since its formation was in a large measure attributable to the stimulus and cooperation given by the respondent. By June 1 the dilatory tactics of the respondent in its negotiations with the T. W. 0. C. had served to create an atmosphere of anxiety and unrest among some of the employees, and a willingness on their part to go to any lengths to safeguard their jobs. At this time Horton, the presi- dent and general manager of the respondent, told certain employees that he saw no reason for paying outsiders 25 cents a week when they could have a union of their own and not be required to pay any dues at all, and that he was prepared to liquidate the plant if he had to recog- HOPE WEBBI NG COMPANY 73 nize the C. I. 0. Davis, the plant engineer in charge of the mainte- nance of the plant and' all the experimental work performed in the plant, who had been informed by Smith of the latter's scheme of or- ganizing an inside union for the office workers, displayed a marked activity in disseminating the plan among the production employees. He arranged meetings between Smith and certain employees at his home and elsewhere and offered to buy gasoline for the use of N. F. W. U. organizers, to furnish his home for the formation of commit- tees, and to perform other services for the N. F. W. U. At the hearing Davis expressed the belief that he had a perfect right to make his home available for the purpose of discussing the formation of the N. F. W. U. and to introduce employees to individ- uals who were active in its organization. This is clearly untenable. Davis was instrumental in spreading the idea of an inside union among the employees and helped make possible the rapid expansion of the N. F. W. U. He admittedly realized the results which would naturally follow from the introductions that he had arranged. Also, as found above, supervisory employees directly participated in the solicitation of members for the N. F. W. U. Unsuccessful in its efforts to break the strike by resuming opera- tions on June 14 under the contract with the N. F. W. U. and thus to destroy the T. W. 0. C. and establish the N. F. W. U. as the repre- sentative of its employees, the respondent resorted to a systematic and persistent use of newspaper propaganda. It sought to discredit the T. W. 0. C. and bring it into disrepute by denouncing it as an irresponsible and unreliable organization and by characterizing its agents as a "tricky lot" and "breeders of discontent and even vio- lence." The respondent at the same time showed that it was pre- pared to make its antagonism effective by threatening to liquidate or move the plant and gradually making the carrying out of such threats more imminent. Thus, at first Horton announced that if the employees did not return to work he would shut down indefinitely and would recommend liquidation to the stockholders. This was followed by the announcement that he had received several offers from other cities and that he would call a meeting of the stockholders to act on his recommendation that the business of the company be liquidated "in view of the impossible situation caused by the activ- ities of the C. I. 0." and by the notification to the employees to remove their belongings from the plant. Finally came the an- nouncement that the stockholders had authorized the board of directors either to liquidate the respondent's business or to move the plant outside of the State. We find that the respondent by its course of conduct, described above,,has interfered with, restrained, and coerced its employees in 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining and other mutual aid and protection as guaranteed in Section 7 of the Act. C. The alleged domination of and interference with. the N. F. W. U. The complaint alleged that prior to June 6, 1937, and thereafter the respondent encouraged, sponsored, dominated, and interfered with the formation and administration of the N. F. W. U. and con, tributed support to it. The Trial Examiner found in his Intermedi- ate Report that the respondent initiated the formation of the N. F. W. U. and sustained and dominated it thereafter, that in con- sequence the N. F. W. U. became indissolubly linked with the respondent's will and desire, and that the results of the election could not therefore be deemed to reflect the wishes of the employees. As already noted, counsel for the respondent. and the N. F. W. U. during the course of the hearing made motions to strike all the testimony relating to matters prior to the election of June 28, and in their exceptions to the Intermediate Report excepted to the denial of such motions. Both the respondent and the N. F. W. U. contend that the Board, by the participation of its representatives in the negotiations leading, to the election.. agreement, in the conduct of the election itself, and in the signing of the statement certifying the N. F. W. U. as the exclusive bargaining representative for the respondent's employees, is barred and estopped from contesting the legality of the N. F. W. U. as such representative and from directing an order of disestablishment against the respondent based on any activities of the respondent prior to June 28. The respondent fur- ther contends that, since the charges filed by the T. W. 0. C. on June 14, similar in scope to those forming the basis of the present complaint, were pending before the Board at the time of the elec- tion, and since the Board's representatives who participated in the election were aware of such charges and of the facts on which they were predicated, the Board is precluded from proceeding with any charges of unfair labor practices which may have been engaged in by the respondent prior to June 28. We think there is plainly no merit in the latter contention. The election agreement merely embodies an understanding between the T. W. 0. C. and the N. F. W. U. that an election be held to determine which of the two organizations represents a majority of the respond- ent's employees. It does not in any way purport to condone, nor does it constitute a compromise, of the respondent's interference, HOPE WEBBING COMPANY 75 restraint, or coercion coercion in the exercise of rights guaranteed by Sec- tion 7 of the Act. The first contention, however, involves different considerations. Although the election agreement did not explicitly provide against instituting charges against the respondent for domination of and interference with the N.. F. W. U., and no such representations were made by the Board's agents, the provision to designate the N. F. W. U. on the ballot and the subsequent certification of the N. F. W. U. as the exclusive bargaining agency for the respondent's employees must, by implication, be deemed an acknowledgement by the Board's agents of the N. F. W. U.'s capacity to operate as a representative of the respondent's employees. Although we do not agree in the contention that the Board is thereby estopped from proceeding with charges of domination of and interference with the N. F. W. U., we believe that effective administration of the Act requires that the Board's.agents have the respect and confidence of labor organizations, employers, and agents of other branches of the government with whom their work brings them in contact. In our opinion the policies of the Act will best be effectuated by giving effect to the election agreement and the certification which were par- ticipated in by agents of the Board and ' by agents of the State Department of Labor and the United States Conciliation Service. We shall, therefore, refrain from consideration of the events prior to June 28 as a basis for sustaining the allegations of the complaint with respect to the respondent's domination of and interference with the N. F. W. U. and for ordering its disestablishment as a repre- sentative of the- respondent's employees, unless after June 28 the respondent engaged in conduct which shows a continuity with its conduct and attitude prior to June 28. It thus remains to be considered whether the respondent engaged in such conduct subsequent to June 28. Several employees testified that they saw N. F. W. U. representatives collecting dues within the plant during working hours. Iva Rogers, secretary of the N. F. W. U., admitted that she had on several occasions received monies handed to her during working hours by some employees, although she as- serted that the proper procedure was to collect dues during the lunch hour. However, all the supervisory employees who testified, except Mitchell, denied seeing anyone collecting dues during working hours. Mitchell testified that he saw Juber, a representative of the N. F. W. U. doing so several times and that he reprimanded him for it, al- though he did not discharge him. James Healey, an employee in the drying room, testified that he noticed Joseph Armour, another N. F. W. U. representative, marking his dues books during working hours in the office of MacKenzie, the foreman of the dye and bleach 0 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD houses. MacKenzie, however, testified that since the dye and bleach houses are usually damp, he permitted Armour to keep his books in the office, but that he never saw him making any entries in them during working hours. Michael Ferri, an employee, testified that sometime in November MacKenzie asked him the reason for being 15 weeks in arrears in the payment of dues. Ferri explained that his delinquency was the result of a quarrel which he had had with Armour and which was a matter of general knowledge in the depart- ment. The evidence also shows, as noted below '6 that late in July Mitchell informed John Madeiros, an employee of the lacquer depart- ment, that Davis was concerned over the fact that some of the em- ployees under his (Mitchell's) supervision did not belong to the N. F. W. U. and thought it best that they join. There is no evidence, however, that Mitchell made similar statements to any other em- ployees under his supervision. Upon the basis of all the evidence, we do not believe that it has been sufficiently established that after June 28 the. respondent engaged .in conduct which would warrant our regarding the events prior to June 28 as part of a course of conduct which continued after June 28. The complaint, in so far as it alleges that the respondent dominated and interfered with the formation and administration of the N. F. W. U. and contributed support to it, will be dismissed. D. The alleged discriminnator j discharges and refusals to reinstate Armand D'Agostino. Armand D'Agostino had worked for the respondent approximately 7 months prior to his discharge on April 21, 1937. At the time of his discharge. he was employed as a tape man in the weave shed under the supervision of his uncle, Thomas Bruscini. D'Agostino was very active in the early organizational efforts of the T. W. O. C. and succeeded in enrolling a large number of employees as members. On April 19, 1937, Henry Stanton, a, fire-insurance inspector, made one of his periodic visits to the plant to check up on fire hazards. He found evidence of recent smoking in "Sectioli H," a room in the base- ment in which were stored old looms, beams, lint, and other materials. Cigarette butts, cigarette carton papers, and matches were scattered on the floor, and the odor of cigarette smoke could still be detected in the air. Stanton immediately reported his discovery to Davis, the plant engineer, and admonished him to put a stop to the practice of smoking in Section H. The following morning Davis instructed Harold, Tierney, an employee in the sample department, to station himself in the basement and attempt to discover the person guilty of smoking in 9 See infra, part III, D. 0 HOPE WEBBING COMPANY 77 Section H. Tierney did so and in the afternoon he observed someone smoking. Being a short distance away, Tierney was unable to dis- tinguish the person clearly, although noticed that he wore a yellow polo shirt. The testimony regarding Tierney's subsequent conduct is some- what conflicting. According to Davis' testimony, Tierney reported to him that the person smoking was dressed in a yellow polo shirt, that after such person had finished smoking, Tierney followed him upstairs into Bruscini's weave shed, and that he saw no other man in the entire shed wearing a polo shirt. Tierney denied that he followed D'Agostino upstairs. He did not remember, however, whether or not he reported such fact to Davis or exactly what he reported, except that the person whom he saw smoking had been wearing a yellow polo shirt. Tierney in fact testified that his recollection was hazy as to the events of that day. We are inclined to believe that Tierney's report was as testified to by Davis, and so find. Davis narrated the episode to George Lord, the superintendent. On the following morning Lord in turn told Bruscini of the smoking incident and asked him whether he had an employee in his weave shed wearing a yellow polo shirt or sweater. D'Agostino, who happened to be in their vicinity at the moment, fitted the description. Lord ex- pressed the belief that D'Agostino was the guilty individual. Brus- cini requested Lord to make certain of his belief because he, Bruscini, knew that D'Agostino was in financial straits. Bruscini then ques- tioned D'Agostino who denied that he had been smoking. In the afternoon Lord assured Bruscini, "That is the fellow, all right." Bruscini immediately summoned D'Agostino, informed him of.Lord's orders to discharge him, and urged him to tell the truth. According to D'Agostino, he replied that whoever reported that he was smoking must have been mistaken. He admitted, however, that he had passed through Section H that morning in the performance of his duties. Bruscini testified that in answer to his inquiry D'Agostino's reply was, "No, I wasn't smoking. And if I was nobody seen me," and that such denial did not convince Bruscini. It is clear from the record that smoking in the plant was considered a grave offense. The evidence shows that about 3 years prior to D'Agostino's discharge an employee was slated to be discharged for smoking in the toilet, but was finally given another chance. About a month before the strike another employee was discharged for the same offense, and in December 1937 still another employee was either laid off or discharged for smoking. Smoking in Section H was a particu- larly serious infraction of the rule in view of the inflammable materials stored there. Whether or not D'Agostino was in fact the employee seen smoking by Tierney, the respondent's belief that he was the cul- prit was not unreasonable under the circumstances. We think that 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was this belief rather than his union membership or activity which motivated his discharge. We find that the respondent did not dis- criminate against D'Agostino in regard to hire or tenure of employ- ment. Albert D'Agostino. Albert D'Agostino began work for the respond- ent in 1934 and was employed as a weaver under the supervision of his uncle, Bruscini. He was a member of the T. W. O. C. negotiating committee and was present at the conferences with the management. He was active on the picket line and served on the strike relief com- mittee. On June 7, he and Carl Pacheco, an employee of the slashing and warping department, led a parade of the strikers to the State House and carried a banner with the inscription "Hope Webbing Strikers." Two or three days after the termination of the strike, he joined the N. F. W. U. in accordance with instructions issued by Salerno at a T. W. O. C. meeting. D'Agostino was discharged by Bruscini on August 6 allegedly because of a series of repeated absences from work without permission ,or explanation beginning shortly after the resumption of operations in the plant. The shop rules of the respondent, posted- on the bulle- tin board in the plant, provided in part, that "absence from work with- out permission from the overseer, (except in case of sickness or other unavoidable necessity) will be considered as terminating the engage- ment of the person thus absent," and that "the overseers of the several departments will be held responsible . . . for a strict enforcement of the . . . rules." A further rule was established that a person absent- ing himself because of illness, should, if possible, report such illness to his overseer forthwith, and in any event immediately upon returning to work. Bruscini testified that the strict enforcement of these rules was especially necessary in the weave sheds, since the absence of any weaver resulted in the idleness of the particular looms assigned to him and frequently had to be explained to the superintendent. Bruscini further testified that, except in the case of D'Agostino, he experienced no difficulty in obtaining compliance with these rules. D'Agostino had also been absent from work on a number of occa- sions prior to the strike. The evidence is undisputed, however, that on those occasions Bruscini had no cause for complaint. Thus, D'Agostino took a number of days off in 1936 as a result of certain domestic difficulties, but Bruscini knew of these absences in advance, because during that year D'Agostino drove him to and from work. Again, in the early part of 1937, D'Agostino was out 2 days because of illness, once on February 22 and again on May 4. He reported the first absence after he returned and obtained prior permission for the second. However, the testimony regarding D'Agostino's absences from work after the strike is conflicting. He was absent on July 6, 7, 19, during HOPE WEBBING COMPANY 79 part of July 20, and on August 5 and 6. Bruscini testified that after D'Agostino failed to account for the first two absences upon returning to work, he warned him, "Albert, you can't go on and do this. If you can't get in touch with me, at least tell me the next day. Come over and respect me for what I am. I am boss here. I have got to look after my own job. I have people to answer to. I have,the other fellow over me . . . if you keep on doing this, you are not going to get away with it"; and that D'Agostino, nevertheless, re- peated the same offense. Bruscini admitted that on the morning of D'Agostino's discharge, after his last absence, D'Agostino reported to him that he had been out because of a stomach ailment. Bruscini testified, however, that he had already made up his mind to discharge D'Agostino on August 5, and that he told him, "You can't go on like this . . . You never came down and see me, never tell me any- thing about it. You are forgetting me altogether. You just go out and in as you please. You can't do it no more . . . You are all done." D'Agostino testified that it was impossible for him to notify Bruscini during his absences, but that he always reported to Brus- cini immediately upon returning to work. He denied that he was ever warned by Bruscini in this respect. The Trial Examiner, who had the opportunity of observing the witnesses, resolved the conflicting testimony of Bruscini and D'Agostino in favor of the former and found that D'Agostino's "union affiliation and activity had nothing to do with his discharge." Under all the circumstances, we find that the record does not sup- port the allegation of the complaint that the respondent discriminated in regard to hire or tenure of employment of D'Agostino. John Madeiros and Julio Merlin. Madeiros had worked for the respondent approximately 2 years and 3 months prior to his lay-off on August 12, 1937. He was employed in the lacquer department, where he was fourth in seniority. Madeiros joined the T. W. 0. C. late in April. He was a member of the T. W. 0. C. negotiating committee and attended the con- ferences with the management. During the strike he served as a captain on the picket line, and in the parade of June 7 he carried a placard on which were inscribed the words : "We are willing to arbitrate, but he [Horton] is not." Madeiros testified that during the strike, Mitchell, the general overseer in the lacquer department, told him that Humes, another overseer in the same department, had made a record of the names of all the employees in the department who were engaged in picket- ing. Mitchell could not recall whether he had so informed Madeiros, but admitted that Humes told him of such a record. We find that Mitchell, in fact, imparted this information to Madeiros. After the resumption of operations in the plant, Madeiros, apprehensive that 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees who participated in the picketing, would be "put on the spot," indicated to Mitchell on several occasions his fear that he would be discharged. Mitchell's reply was, "Yes, I believe you will, but I will do all I can to keep you here." Madeiros testified that about 2 weeks before his lay-off Mitchell told him that Davis, who was in charge of the lacquer department, was concerned about the fact that some of the employees under his (Mitchell's) supervision did not belong to the N. F. W. U. and thought it best that they enroll. ' According to his testimony, Madeiros replied, "I won't joint any company union, there is no law compelling me to." Madeiros further testified : . Foreman Mitchell went on and says "Everytime I go up to the office Mr. Davis seems to have something against you," and I asked what it was, and he says "Walking the picket line," and I said "What has that got to do with my work now, isn't my work O. K.," and he said "Sure it is." Although Davis denied asking any employee directly to join the N. F. W. U., he did not deny expressing to Mitchell his concern over the presence of non-members under the latter's supervision. Mitchell denied saying to any employees that Davis desired them to join the N. F. W. U. He did not, however, refute the other statements attributed to him by Madeiros. Under the circumstances, Mitchell's bare denial does not in our opinon refute Madeiros' testimony with respect to his non-membership in the N. F. W. U. We find that Mitchell expressed himself to Madeiros as testified by the latter. Julio Merlin had worked for the respondent approximately 31/2 years prior to his lay-off on August 12, 1937, and had the greatest seniority in the lacquer department where he was employed. He taught several other employees in the department to operate the machines and was considered by Humes, his overseer, as one of the best employees there. Merlin joined the T. W. O. C. on April 14, was elected a member of the negotiating committee, and was present at most of the con- ferences with the respondent. He served on the picket line during the strike. He did not thereafter join the N. F. W. U. The evidence shows that a slackening of work in the. fall of 1937 occasioned by the scarcity of new orders and excessive inventory made feasible certain lay-offs. On August 12 Davis received instruc- tions to lay off employees in his department. Davis relayed the in- structions to Mitchell who on the same day announced the lay-off of all the employees in the lacquer department, 14 in number.7 Since it was necessary to maintain the machines in continuous opera- ' Seven other employees had been laid off during the period between July 23 and August 5. The record does not, however, disclose the reasons therefor. HOPE WEBBING COMPANY 81 tion in order to prevent the varnish from adhering to them, a skele- ton crew consisting of the three overseers on the three shifts was retained in the department. Both Madeiros and Merlin testified that, when they returned for their pay the following day, Mitchell first told them that they were discharged and a few minutes later, after speaking with Davis over the telephone, said, "Mr. Davis changed his mind, you are only laid off." According to Merlin's testimony, Mitchell added, "When work picks up we will call you." Madeiros testified that he remarked, "That is only a polite way of firing us," and that Mitchell replied, "That is all I can do." Mitchell denied telling Madeiros and Merlin that they were discharged. He testified that Merlin and Madeiros requested to see Davis, that Davis rejected such request, and that he, Mitchell, then told them that they were laid off. Davis, however, testified to the following effect : After Merlin and Madeiros had drawn their pay and left, Mitchell informed Davis that they wanted to see him, and that, in reply to their question whether "they were done," Mitchell told them that they would be if he had his way. Davis reprimanded Mitchell for making such a remark and instructed him to tell them when he saw them next that they "were certainly going to go back to work if we had work." Mitchell acknowledged being at fault and explained that he made the remark, because "that is the way he felt." In view of Davis' testimony, we do not credit Mitchell's denial but believe that he in fact first told Madeiros and Merlin that they were discharged and then that they were merely laid off. Several days after the 'lay-off, the respondent received an order for goods which could not be filled from the stock on hand and had to be manufactured, thus creating work for the lacquer department. Davis immediately instructed MacKenzie, Bruscini, and Joseph Stanis, a loom fixer, to have their sons, who were employed in the department, to return to work. All three began working on August 16. Davis testified that this course of action was in accordance with his usual practice of recalling for rush work those employees who were most readily available, provided they were equally efficient. More orders came in thereafter and, beginning on August 30, more employees were recalled for work, so that by September 20 all the employees who had been laid off on August 12, except Madeiros and Merlin, Hector Leduc, who had in the meantime obtained employment elsewhere, and Peter Juber, who was transferred to another department, and all, except one," of the employees who had been laid off prior to August 8 Board Exhibit No. 46. which lists the dates on which the various employees in the lacquer department were laid off and taken back , would seem to indicate that four em- ployees in this category had not been taken back. Davis' testimony, however, shows that one of them was transferred to another department and the other two were not laid off but had voluntarily left their employment. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. 12, were back at work. They only worked for short periods of time, varying from one to 31/2 months, and were then laid off again, so that by the time of the hearing only the three overseers remained at work. Madeiros and Merlin testified that seniority was considered in other lay-offs and that older employees were retained and, if neces- sary, transferred to the night shift composed of younger employees who were laid off first. According to their testimony, both Madeiros and Merlin were customarily accordedpreferred treatment. Thus Madeiros had been among the last to be laid off and the first to be recalled. Merlin had been retained on occasions when all the em- ployees except the overseers had been laid off. His only lay-off, which was for a period of 4 or 5 weeks, occurred shortly after he first commenced work for the respondent. On that occasion Leo Lebow, the erstwhile general overseer of the department, had been sent to his house for the express purpose of notifying him to return to work. At the hearing Davis advanced the following reasons in justifica- tion of his failure to recall Madeiros and Merlin at any time after their lay-off on August 12: (1) As there was no material difference in the efficiency of the employees in the department resulting from greater length of service, the degrees of seniority of the employees have not been given weight in making lay-offs but rather their economic circumstances, so that other considerations being equal, an individual in financial straits would be given employment if avail- able. (2) All the employees whom Davis had recalled after the present lay-off, with the exception of the first three, had communi- cated with him at various times and told him "hard luck stories" as to their need of work, whereas Madeiros and Merlin had never done so and he did not know, therefore, whether or not they needed em- ployment. (3) Davis felt that since Madeiros and Merlin had always had steady work and had never been laid off, the other employees should be given priority on the present occasion. In recommending in his Intermediate Report that the complaint be dismissed as to Madeiros and Merlin, the Trial Examiner stated that he was convinced that "Davis' testimony concerning Merlin and Madeiros is substantially true." However, the very nature of his testimony, in light of the circumstances as a whole, impels us to dis- agree with the Trial Examiner. Whether or not Davis followed a strict system of seniority, it is clear from his past. treatment of Madeiros and Merlin that he had adopted a practice of giving special consideration to older employees. Davis' did not allege the financial circumstances of Madeiros and Merlin as the reason for having given them preference in former lay-offs. He did not and could not allege HOPE WEBBING COMPANY 83 as a motivating factor their superior skill, since by his own assertion there is no great difference in skill between the employees in the department. Such preference must therefore be ascribed to the only other plausible reason, their greater seniority. Moreover, Davis ad- mitted that at a lay-off which occurred during the year 1936 he trans- ferred. certain employees from one shift to another. Since he did not assert that such employees were transferred because they were in need of work most, we believe, on the basis of Madeiros' testimony, that they were so transferred because they had greater seniority. There is no evidence that after other lay-offs in depression years when the need of work was presumably as great at the present lay-off, only those employees who came to the plant and told "hard luck stories" were recalled to work. The evidence points to a contrary practice. It is not denied that subsequent to his only previous lay- off, Merlin was notified to return to work. without any such pre- liminaries. On the day following their present lay-off, Madeiros and Merlin were told by Mitchell that they would be called back when work picked up. Davis testified that he instructed Mitchell to tell them that they "were certainly going to go back to work if we had work." Moreover, Davis testified that he had of his own initiative inquired about Hector Leduc, one of the employees laid off, and had been informed that he was employed elsewhere. Further inconsis- tent with his contention in this regard is Davis' testimony that he asked Humes whether Madeiros and Merlin were employed but that Humes did not know. Nor do we credit the contention that Davis did not recall Madeiros and Merlin, because he felt that the others were entitled to preference at this time. No reason appears why Davis should have at this time departed from the practice pursued theretofore of giving preference to older employees. Moreover, Davis did not assert that Madeiros and Merlin were the only em- ployees who had had steady employment in the past. His testimony that there had not been a general lay-off prior to the present one would seem to indicate the contrary. There is no reason, therefore, why he should have preferred all the employees who had been laid off, even those laid off at a prior date, to both Madeiros and Merlin. In this connection it is significant to note that Madeiros and Merlin were the only two employees in the department who served as mem- bers of the T. W. O. C. bargaining committee and were present at the conferences with the management,9 and, as far as the record shows, were the only ones in the department who had not joined the N. F. W. U.' In light of the fact that Merlin and Madeiros were the most active T. W. O. C. members in the department and that Davis was markedly 9 Hector Leduc was also a member of the committee but did not attend the conferences. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interested in the N. F. W. U., it becomes apparent, upon the elimina- tion of the reasons advanced by Davis, that his real reason for failing to recall them to work at any tine was their union activity. We find that the respondent discriminated against Madeiros and Merlin in regard to hire and tenure of employment, thereby dis- couraging membership in a labor organization, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. From the date of their lay-off to the date of the hearing, Madeiros had earned no money and Merlin had earned about $20. Carl Pacheco. Carl Pacheco had worked in the respondent's plant for about 8 years prior to his discharge on August 20, 1937. He was employed as a floorman in the slashing and warping department.10 He took an active part in the early organizational efforts of the T.W. O. C. and succeeded in enrolling 15 or 20 employees as mem- bers. Fontaine, the overseer of the department, was aware of Pacheco's affiliation with the T. W. O. C. and showed a friendly attitude. He told Pacheco that he would like to see the T. W. O. C. established in the plant, asked him about the T. W. O. C. meetings, and advised him against voting the "0. I. C." ballot. Pacheco was also active on behalf of the T. W. O. C. during the strike. He was a member of the strike relief committee, served on the picket line where he distinguished himself by his singing, was conspicuous on election day through his objections to the presence of supervisory employees at the meeting prior to the balloting, and carried a banner with the inscription "Hope Webbing Strikers"' in the parade of June 7. Pacheco testified that while he was picketing on June 14, the day on which the respondent made unsuccessful efforts to resume opera- tions, Fontaine accused him of being an "ungrateful wretch" because of his actions on the picket line after all that the respondent.had done for him. Fontaine denied referring to Pacheco as an "ungrateful wretch," but did not deny the substance of the statement attributed to him by Pacheco. Shortly after the strike, Catherine Donnelly, the overseer of the handing-in and drawing-in department, told him that it was unfortunate that he had made "a fool out of himself" on the picket line, since he might otherwise have been assigned to a better job. On a subsequent occasion, Bridges, the paymaster, stopped Pacheco in the main office, and similarly expressed his regret that he "got into the mess with the C. I. O.... "His duties consisted in assisting the slasher tenders in the operation of the machines, fixing warpers, making starches, and taking yarn to the yarn department, and in the performance of other odd jobs. , . HOPE WEBBING COMPANY 85 Pacheco testified that about a week or two after the strike ended Fontaine accused him of copying a notice on the bulletin board dur- ing working hours and said, "You had better do your work if you know what is good for you. . . . You are an ungrateful wretch for the way you have been working during the strike." According to his testimony, Pacheco replied, "The company never give me any break," to which Fontaine said, "You got all the breaks coming, you are a cheap punk and a skunk." Pacheco further testified that on the fol- lowing day Fontaine stopped him and said, "Why don't you get onto yourself, the C. I. 0. isn't here now. If you want your job you know you got to get to work." Fontaine testified that copying notices dur- ing working hours was against the plant rules. He denied applying to Pacheco the alleged disparaging epithets, but did not deny making the other remarks. Pacheco's testimony with respect to his discharge which took place on August 20 is as follows : Early in the afternoon he and four other employees, named by him, were shooting dice. As he was re- turning to his work, leaving the others still engaged in the game, Fontaine came in and caught them. About 2 hours later Fontaine announced to Pacheco that he had lost his patience with him and that Pacheco was through. Fontaine gave him as reasons for his dis- charge, that he took the wrong attitude after the strike and that he could not loaf and "shoot crap" and at the same time do his work. Pacheco testified that shooting dice was a regular pastime which had been engaged in by employees in the department since Fontaine be- came overseer 3 or 4 years ago, that Fontaine was aware of it, and that no one had theretofore been discharged for participating in such pastime or cautioned against it. Fontaine denied that he caught any employee shooting dice on that day or that he said anything about it to Pacheco. He admitted that an employee had informed him of such activity, but that he did not know the names of. the participants. He asserted that when he discharged Pacheco he merely told him that he was not doing his work properly. In our view of the case and in light of the evidence discussed below it is unnecessary to decide whether or not Fontaine in fact mentioned dice shooting to Pacheco when he discharged him. Fontaine testified as follows with respect to the circumstances lead- ing to Pacheco's discharge : Prior to the strike Pacheco was a "happy- go-lucky fellow, . . . jolly, good-natured, ready for a joke," and neat in appearance. He never had to be given orders with respect to his duties which he carried out in a satisfactory manner. After the strike, however, his attitude was entirely changed. He appeared to have a "chip on his shoulder," was slovenly in appearance, and had to be given repeated orders before he finally performed tasks 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the ambit of his duties. Until about August 1 Fontaine did not take any action, because it was not long after the strike and he wished to give Pacheco an opportunity to revert to normal, and be- cause he was apprehensive that any action he might take would be attributed to Pacheco's union activity. Pacheco's misconduct, how- ever, had become so noticeable that other employees were remarking that he must "have something on the boss. He is'getting away with murder." On about August 1 Fontaine warned him and said, ".. . you seem to have taken a different attitude since you have been back. You seem to do things just about as you please. You don't care how the place looks. You don't care how you look yourself. You are not attending to your work." At about that time there was a slackening of work in the department, and Fontaine noticed Pacheco sitting on the windowsill practically every day for an hour or an hour and a half at a time. He therefore instructed him to "cut off beams," 11 in his spare time. Pacheco remonstrated that he had not been as- signed this work before the strike, and persisted in the practice of sitting on the windowsill. Fontaine then asked him whether he had understood his instructions, to which Pacheco replied, "Well, there is nobody waiting for them, is there?" and remarked that he would do as ordered but would take his time about it. Fontaine said it made no difference whether anybody was waiting for the beams and told him to be careful because that was the last warning he would give him. Pacheco thereafter cut off about a dozen beams and stopped. On August 20 Fontaine determined to discharge him. At about 1 o'clock on that day he told the paymaster to prepare Pacheco's pay as of the end of that day and at about 3 o'clock he informed Lord, the superintendent, of his decision. Pacheco testified that his duties before the strike were confined for the most part to the assistance of the slasher tenders in the operation of the machines, so that he had considerable spare time and there were days when he had no work at all. According to his testimony, he used to sit on the windowsill, shoot dice, buy ice cream for the girls, at Fontaine's request, and visit his mother-all during working hours. In his own words, "That was a position, that wasn't no job." He further testified that after the strike, however, Fon- taine imposed additional duties on him, such as cutting off beams and taking waste to the waste house, and ordered him to pick up the paper and burlap every day whereas before he was permitted to do it only once a week. He admitted that he resented the in- roads which Fontaine made on his leisure time by giving him this n This work consisted in removing by hand the small amounts of yarn remaining on certain beams which are taken off the looms and sent to the slashing and warping department. HOPE WEBBING COMPANY 87 additional work which had previously been done by other em- ployees, and the closer scrutiny to which he was subjected. The record, it is true, shows that Pacheco had distinguished him- self by his activities in behalf of the T. W. O. C. during the strike and was given more work and subjected to closer supervision after the strike than before. However, in view of Pacheco's attitude toward his work and his admitted derelictions in duty, we do not feel that the evidence is sufficient to show that he was discharged because of his union activity. We find that the respondent has not discriminated against Pacheco in regard to hire or tenure of employment. Minnie Taccone. Minnie Taccone had worked for the respondent approximately 14 years. At the time of her lay-off on October 22, 1937, she was employed as a. drawing-in girl in the handing-in and drawing-in department. Only - two. or three out of the approxi- mately 25 girls employed in the department had greater seniority. Taccone joined the T. W. O. C. on May 1, was elected a member of the negotiating committee, and was present at the conferences with the management. She participated in the picketing during the strike and acted as a watcher at the election. She never joined the N: F. W. U. Until shortly before Taccone's lay-off, Catherine Donnelly, the overseer of the department, had pursued the practice of permitting the employees to work on a "share-the-work" basis instead of giving full-time work to some and laying the remainder off. About the middle of September, Horton, who received periodic analyses of -the pay roll, was disturbed by the fact that there were far too many employees in that department and that as a result their individual wages were low. He instructed Lord, who explained the situation to him, to curtail the staff in the department so as to give full-time work to as many employees as possible and to lay the rest off on the basis of efficiency. In accordance with Horton's instruc- tions Lord obtained from the paymaster a list of all the employees showing the number of days they worked and average daily earn- ings during the 11-week period between June 30 and September 17. Each employee was given a numerical efficiency rating on the basis of her relative earnings, Taccone being rated tenth out of the 12 drawing-in girls. Thereafter, pursuant to Lord's instructions, Don- nelly proceeded to make certain lay-offs in accordance with the ratings. The employee rated twelfth was laid off on September 16, and those rated eleventh and tenth (Taccone), on October 22.12 Further lay-offs, generally in accordance with the ratings,13 were 12One girl rated as the least efficient, had been laid off prior to the preparation of the ratings. 12 Donnelly deviated from the ratings with respect to Alma McCormick, a drawing-in girl who, although rated ninth , was not laid off but transferred to banding -in work. How- ever, the record shows adequate ground warranting an exception in McCormick 's case. 190935-40-vol. 14-7 ° 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made thereafter, so that at the date of the hearing only four out of the twelve drawing-in girls remained. We find that the record does not support the allegations of the complaint that the respondent discriminated against Taccone in re- gard to the hire or tenure of her employment. James Healey. James Healey had worked for the respondent from 192'2 to 1924 or 1925 and again from about March 1935 to the date of his lay-off, October. 10, 1937. He was employed with two others, Victor St. Germain and Joseph DiSanto, in the drying room where the materials coming from the dye and bleach houses were dried. Healey was a member of the T. W. O. C. negotiating committee and attended the conferences with the respondent. He acted as general picket captain during the strike. He joined the N. F. W. U. a few days after the resumption of operations but resigned about 4 or 5 weeks later. As a result of reduced operations in the plant due to business condi- tions, a number of lay-offs, beginning late in November 1937, were made in the bleach and dye houses, and by December only 29 out of the 41 employees comprising the two department's remained: ' Nor- mally the services of one dry-room mail were required for every 16 or 17 employees in the bleach and dye houses combined. On Decem- ber 10, therefore, it became feasible to lay off one employee in the dry room. Healey was selected for such lay-off. Healey testified that in former lay-offs he was given priority over St. Germain, one of the other dry-room men. MacKenzie, the over- seer of the dry room, advanced as a reason for laying off Healey rather than St. Germain or DiSanto that the latter two were steadier employees and had greater seniority, St. Germain having been in respondent's employ 9 years and DiSanto 10 years. MacKenzie testified that on a former occasion in 1935 he laid off St. Germain for about 5 weeks and retained Healey, because he believed that the latter was then in greater need of work, being the sole support of his family, whereas, in the present lay-off, the situation was reversed. According to his testimony, DiSanto was always in financial straits. The Trial Examiner, in his Intermediate Report, gave credence to MacKenzie's testimony with respect to Healey's lay-off, and recom- mended that the complaint be dismissed as to him. We find that the record does not support the allegation of the complaint that the respondent discriminated against Healey in regard to the hire and tenure of his employment. IV. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, Al B, and D above, occurring in connection with the operations HOPE WEBBING COMPANY 89 described in Section I above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. , V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order it to cease and desist therefrom. In order to effectuate the purposes and policies of the Act and as a means of removing and avoiding the consequences of the respondent's unfair labor practices, it is essential that in aid of our cease and desist order the respondent be directed to take certain affirmative action, more particularly described below. We have found that the respondent has discriminated against John Madeiros and Julio Merlin in regard to hire and tenure of employ- ment. We will order the respondent to offer them reinstatement with .back pay: Such reinstatement shall be; without prejudice to their seniority and other rights and privileges and shall be effected in the following manner : If at the date of 'ou'r Order there is an, amount of work in the lacquer department, judged by the number of employees required, which was considered sufficient to warrant the retention of Madeiros and Merlin or their recall to work in lay-offs prior to August 12, 1937, they shall be offered reinstatement immediately, without prejudice to their seniority and other rights and privileges, dismissing other employees if necessary. If at the date of our Order there is not such an amount of work in the lacquer department. Madeiros and Merlin shall be placed on a preferential list and offered employment as soon as there is such an amount of work in the lacquer department. We will order the respondent to make Madeiros and Merlin whole for any loss of pay they-have suffered by payment to each of them of a sum of money equal to that which each would normally have earned as wages from the date on which there was first -an- amount of work in the lacquer department, judged by the number of em- ployees required, which was considered sufficient to warrant • their retention or their recall to work in lay-offs prior to August 12, 1937,14 to the date of the offer of reinstatement or placement on the prefer- ential list, excluding from .the computations of the back pay of each of them the period from September 8, 1938, the date of "the Inter- 14 we do not believe that the respondent discriminated against Madeiros and Merlin on August 16, 1937, when the first three employees were taken back, since there appears ample reason for the preference accorded to such employees. August 16 cannot. therefore, be taken as the beginning of the period for the computation of back pay but rather August 30, or thereafter, when further employees were recalled to work. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediate Report, to the date of our Order,15 less the net earnings is of each during the periods for which back pay is to be computed. Upon the basis of the above findings of fact and upon the entire record in the case,,the Board makes the following : CONCLusIONS OF LAW 1. Textile Workers Organizing Committee of the C. I. 0., Local No. 14, and Narrow Fabric Workers' Union are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of John Madeiros and Julio Merlin, thereby discouraging mem- bership in a labor organization, the respondent has engaged.in and is engaging in unfair labor, practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (2) of the Act. 6. The respondent has not engaged in unfair labor, practices, within the meaning of Section 8 (3) of the Act with respect to Armand D'Agostino, Albert D'Agostino, Carl Pacheco, Minnie Taccone, and James Healey. 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- 15 In the Matter of E. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. R. B. 760. 19 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for the discrimina- tion against him and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R . B. 440. 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. HOPE WEBBING' COMPANY 91 spondent, Hope Webbing Company, Pawtucket, Rhode Island, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Textile Workers Organizing Committee of the C. I. 0., Local No. 14, by laying off and refusing to reinstate any of.. its employees, or otherwise discriminating in regard to the hire or tenure of their employment, or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the, policies of the Act: (a) Offer immediately to John Madeiros and Julio Merlin full reinstatement to their former or to substantially equivalent posi- tions, without prejudice to their seniority and other rights or privi- leges, dismissing other employees, if necessary, if there is an amount of work in the lacquer department, judged by the number of em- ployees required, which was considered sufficient to warrant the retention of Madeiros and Merlin or their recall to work in lay-offs prior to August 12, 1937; if there is not such an amount of work in the lacquer department, place them on a preferential list and offer them reinstatement as soon as there is such an amount of work in the lacquer department; (b) Make John Madeiros and Julio Merlin whole for any loss of pay they may have suffered by reason of the respondent's discrimi- nation in regard to their hire and. tenure of employment by pay- ment to each of them a sum of money equal to that which each of them would normally have earned as wages during the periods from the dates on which there was first an amount of work in the lacquer department, judged by the number of employees required, which was considered sufficient to warrant their retention or their recall to work in lay-offs prior to August 12, 1937, to the date of the offer of reinstatement or placement on the preferential list, excluding from the computation of the back pay of each of them the period from September 8, 1938, the date of the Interinediate Report to the date of this Order, less the net earnings of each during the periods for which back pay is to be computed; deducting, however, from the amounts otherwise due them, monies received by each of -them, respectively, during said periods for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the amount so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or govern- ments which supplied the funds for said work-relief projects; (c) Immediately post notices in conspicuous places throughout its plant, and maintain such notices for a period of at least sixty (60) consecutive days, stating that the respondent will cease and desist in the manner aforesaid ; (d) Notify the Regional Director for the First Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (2) of the Act:. AND IT IS FURTHER ORDERED that the complaint be, and it hereby.is, dismissed in so far as it alleges that the respondent has engaged in .unfair labor practices, within the meaning of Section 8 (3) of,the Act, with respect to Armand D'Agostino, Albert D'Agostino, Carl Pacheco, Minnie Taccone, and James Healey. MR. WILLIAM M. LEIsERSON, concurring: I concur in the findings and decision of Chairman Madden. MR. EDWIN S. SMITH , dissenting in part : I concur in Chairman Madden's opinion in all respects except the finding that the respondent, after the election of June 28, did not engage in conduct which would warrant the Board regarding the events prior to June 28 as part of a course of illegal conduct which continued after June 28. As expressly recognized in the Chairman's opinion, the policy of the Board in refraining from considering the events prior to the election as a basis for sustaining the charges of violation of Section 8 (2) of the Act holds only so long as the respondent conducts itself in conformity with the spirit of the election agreement and does not after the election engage in conduct which is of a piece with its previ- ous conduct. If, after the election, the respondent engaged in such conduct, the reasons for disregarding the events prior to the election are no longer present and the entire course of the respondent's conduct is to be considered in deciding whether the respondent has domi- nated and interfered with the formation and administration of the N. F. W. U. It is, not necessary that the respondent's post-election conduct be as seriously culpable as its pre-election conduct, especially when, as here, it was no longer necessary after the election for the respondent to HOPE WEBBING COMPANY 93 impose its will upon its employees in as forceful and thorough-going a fashion as before. The respondent, prior to the election, by a persistent course of unfair labor practices caused the N. F. W. U. to come into being and so completely established its favored status as a representative of the employees that further action on the part of the respondent for this purpose after the election hardly seems to have been necessary. Yet, as the Board found, Davis, who played a major role in the formation of the N. F. W. U. and for whose conduct the respondent is respon- sible, expressed concern to a foreman under him over the fact that certain employees in that foreman's department were not members of the N. F. W. U. and later discriminated in regard to the employ- ment of Madeiros and Merlin, the only two men in that department who, so far as the record shows, had hot joined the N. F. W. U. and who also had been prominent in the T.' W. 0. C. I think that the conduct and attitude of Davis after the election, including the discrimination against Madeiros and Merlin, shows con- vincingly that after the election the respondent was still pursuing its pre-election policy of stamping out the T. W. 0. C. and intrenching the N. F. W. U. I do not, therefore, agree that the Board should refrain from considering the events prior to the election as a basis for sustaining the charges of violation of Section 8 (2) of the Act. A consideration of the entire course of the respondent's conduct shows unmistakably that the respondent has'dominated and-interfered with the formation and administration of the N. F. W. U. and has contrib- uted support to it, and I would so find. I would issue an appropriate order requiring the respondent to cease and desist from dominating and interfering with the N. F. W. U., and, affirmatively, to withdraw recognition from the N. F. W. U. as a representative of the employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and condi- tions of work, and to disestablish it as such representative.