Corinth Hosiery Mill, Inc.

In the Matter of CORINTIi HOSIERY MILL , INC.' and AMERICAN FEDERA- TION OF HOSIERY WORKERS Case No. C-76.9.-Decided October 25, 1939 Full-Fashioned Hosiery Manufacturing Industry-Interference, Restraint, and Coercion : surveillance ; expressed hostility ; threats of reprisals ; creating situa- tion where further organization activity practically impossible ; respondent held responsible for anti-union activities of mayor on ground of close cooperation, open endorsement of mayor's anti-union utterances, and close financial connection between city and respondent-Discrimination: refusal to reinstate one employee ; charge of. dismissed as to two other employees-Reinstatement Ordered: of em- ployee refused reinstatement-Back pay: awarded single employee-Settlenment: refusal to be bound by ; where respondent simultaneously with agreement engaged in anti-union conduct. Mr. Berdon M. Bell, for the Board. Mr. F. M. Curlee and Mr. Richard F. Moll, of St. Louis, Mo., and Mr. William H. Kier, of Corinth, Miss., for the respondent. Mr. Herbert G. B. King, of Chattanooga, Tenn., for the Union. Mr. S. G. Lippman, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges 2 duly filed by the American Federation of Hosiery Workers, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued its complaint dated March 15, 1938, against Corinth Hosiery Mill, Inc., Corinth, Mississippi, herein called the respondent, alleging that i The complaint and other formal papers referred to "Corinth Hosiery Mills," but it was stipulated at the hearing that the correct name is "Corinth Hosiery Mill, Inc." 2 The original charge was filed with the Regional Director for the Fifteenth Region (New Orleans, Louisiana) on July 7, 1937. On August 13, 1937, the Board ordered that the case be transferred from the Fifteenth Region to the Tenth Region (Atlanta, Georgia) and consolidated with a case there pending entitled "In the Matter of Lengil-Fencil Hosiery Company and American Federation of Hosiery Workers." On October 26, 1937, the Board issued an order revoking its order of August 13, 1937, in so far as it pertained to consoli- dation of the two cases. On January 26, 1938, the Board ordered that the case here involved be retiansferred and continued before the Regional Office for the Fifteenth Region. 16 N. L. R. B., No. 43. 414 CORINTH HOSIERY MILL, INCORPORATED 415 the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 - (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accom- panied by a notice of hearing, were duly served upon the respondent and upon the Union. With respect to the unfair labor practices, the complaint alleged in substance that the respondent had (a) by threats, warnings, de- rogatory statements, surveillance, and numerous other acts set forth in the complaint, discouraged membership in the Union and inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and (b) discharged Ernest 13. Davis on March 1, 1936, A. L. Leatherwood about June 8, 1937,3 and L. C. Johnson about September 29, 1937, and had since failed and refused to reinstate the said persons, for the reason that they joined the Union and engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection. On March 23, 1938, the respondent filed its answer and during the hearing, an amended answer, denying, that its operations affect inter- state commerce and that it had engaged in any of the unfair labor practices alleged in the complaint. The amended answer further alleged that, if the Act was applicable to the relationship between the respondent and its employees, the Act was in violation of various provisions of the constitution of the United States and amendments thereto. By way of affirmative defense, the amended answer alleged that on June 8, 1937, an agreement was reached by the respondent, the Union, and counsel for the Board wherein the respondent agreed to adjust certain grievances of the Union and to post a notice drafted by. counsel for the Board; that the respondent fulfilled the terms of such agreement; that all parties agreed at such time that said action by the respondent was in full and complete release, satisfaction and, dis- charge of all complaints and grievances based upon unfair labor prac- tices committed by the respondent prior to June 8, 1937; and that, in view of the aforesaid facts, neither the Board nor the Union has a right to complain of unfair labor practices alleged in the complaint to have been committed prior to June 8, 1937. Pursuant to notice, a hearing was held from March 28 through April 2, 1938, at Corinth, Mississippi, before L. Richard Insirilo, the Trial Examiner duly designated by the Board. The Board, the re- spondent, and the Union were represented by counsel and participated in the hearing. 'Full opportunity to be heard, to examine and cross- 3 The complaint was amended at the hearing to substitute the date "June 18,1937" for the date "June 8 , 1937." 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD examine witnesses, and to introduce evidence bearing on the issues. was afforded all parties. At the beginning of the hearing, the respond- ent moved to dismiss the complaint on the ground that the charge and the complaint do not allege any facts constituting unfair labor prac- tices. At the close of the Board's case, the respondent moved to dismiss on the ground of a failure of proof. The Trial Examiner overruled these motions. The rulings are hereby affirmed. At the close of the Board's case the Board's attorney moved to conform the pleadings to the proof. The Trial Examiner granted the motion. The ruling is hereby affirmed. During the course of the hearing the Trial Examiner made several rulings on other motions and upon objections to the ad- mission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no. prejudicial errors were committed. The rulings are hereby affirmed. On July 14, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served on all parties, in which he found that the respondent had engaged in unfair labor practices within the mean- ing of Section 8 (1) and (3) of the Act. He recommended that the respondent cease and desist from its unfair labor practices; that it make whole and offer reinstatement to Ernest B. Davis, A. L. Leather- wood, and L. C. Johnson to their former positions without prejudice to their seniority and other rights and privileges; and that it take cer- tain other affirmative action designed to effectuate the policies of the Act. On July 26, 1938, the respondent filed exceptions to the Inter- mediate Report and to rulings made by the Trial Examiner on motions and to the admission of evidence. In its exceptions, the respondent alleges on information and belief that, contrary to Section 32 of the Board's Rules and Regulations-Series 1, as amended, the Intermediate Report was not prepared by. L. Richard Insirilo, and does not represent the findings and recommendations of said Trial Examiner, based upon the record and his observation of witnesses, but is the report and the findings and recommendations of the Board in Washington, D. C., or some agent or agency thereof unknown to the respondent other than the said Trial Examiner. The respondent prays that it be served with a copy of the findings and recommenda- tions of the said Trial Examiner. Pursuant to a request made by the respondent, the Board duly served upon all parties notice of oral argument before the Board in Washington, D. C., on January 24, 1939. Prior to the date set for the oral argument, the respondent filed a request for a postponement of the oral argument for approximately 1 month. This request was denied by the Board. Neither the respondent nor the Union appeared for the oral argument before the Board. CORINTH HOSIERY MILL, INCORPORATED 417 The Board has considered the exceptions filed by the respondent and, except as consistent with the findings, conclusions, and order set forth below, finds them to be without merit. We find in this connection that allegations of the exceptions relative to the prepara- tion of the Intermediate Report are so vague and lacking in particulars as to raise no substantial or material question. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, a Delaware corporation, has its general office in Reading, Pennsylvania, and its manufacturing plant in Corinth, Mississippi, where it is engaged in the manufacture of full-fashioned hosiery, employing 389 employees. 'The respondent does not pur- chase any raw material or sell its finished product, but operates entirely on a contract-commission basis. It receives the raw material usually in the form of bobbins of silk and sometimes of cotton from the contracting party, and processes it to the "stage of griege," which is completed hosiery in all respects except that it has not been dyed. The respondent then packs its completed product and returns it to the contracting party. At the time of the hearing the respondent was engaged in processing hosiery to the "stage of griege" exclusively for the Vertex Hosiery Corporation of Allentown, Pennsylvania. During • the year preceding the hearing the respondent received all of its raw material from sources outside the State of Mississippi, and shipped all of. its finished products to points outside the State of Mississippi. II. THE ORGANIZATION INVOLVED American Federation of Hosiery Workers is a labor organization which at the time of the filing of the charges and at the time of the hearing was affiliated with the American Federation of Labor, ad- mitting to its membership all employees of the respondent, exclusive of supervisory and clerical employees. III. THE UNFAIR LABOR PRACTICES A. The chronology of events In October 1935, W. J. Frazier, an organizer for the American. Federation of Hosiery Workers, arrived in Corinth, and initiated the first labor organizational activities among the employees at the respondent's plant. Shortly after his arrival. in Corinth, Frazier arranged for a number of organizational meetings which were held 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Frazier's hotel room and at the home of Oscar Strickland, an employee of the respondent. Frazier testified that while a meeting was in progress at Strickland's home he and others saw Charles O. Weibel, the respondent's superintendent, driving very slowly by the house in his automobile. He also testified that following a meeting at his hotel room he saw Weibel and another person come out of the next room. Weibel admitted in his testimony that, having heard of the activities of the respondent's employees and that a meeting was to be held at the Strickland house, he drove past the house several times to see how many cars were there. He denied, however, that he had been in a room next to that occupied by Frazier. In view of the entire record, we cannot give weight to this denial and find that Frazier's testimony is to be accepted. We think it clear that Weibel was at this time also engaged in spying upon the organi- zational meeting of the respondent's employees. A few days after Frazier's arrival in Corinth, a Mr. Sutton, city alderman, informed Frazier by telephone that E. S. Candler, the mayor of Corinth, and other city officials desired to talk with him. Frazier went to Candler's office where he talked with Candler and. members of the city board of aldermen. Frazier was asked to present his credentials and questioned as to the nature of his business in Corinth. Frazier presented his credentials and stated that he had come to Corinth to determine whether the workers wanted to or- ganize. According to Frazier's testimony, Candler then stated that the city of Corinth had invested heavily in the respondent's plant, that 'it did not want any labor trouble, and that if Frazier knew what was "good for" him he would leave Corinth. Frazier also testified that Sutton interrupted to state, "This fellow is a Red, an agitator, and he should be run out of town." Frazier further testi- fied that Weibel, who had come in during the conversation, thereupon stated -that he had an agreement with the American Federation of Labor which provided that the respondent's plant was not to be organized for a year; that the respondent's employees were one big happy family and did not want any outside interference; and that the respondent did not intend to have, any organization at its mill. Candler testified that he advised Frazier that it would be best for the mill and for the community if he returned "from where he came from," but denied that he ordered Frazier to leave Corinth. He further testified that he did not hear Sutton, who did not testify, make the remarks attributed to him by Frazier. Weibel did not in his testimony testify with respect to the remarks which Frazier testified to above. We find that Candler, Sutton, and Weibel made the above statements attributed to them by Frazier. After being in Corinth a number of days, Frazier found it neces- sary to return to the headquarters of the American Federation of CORINTH HOSIERY HILL, INCORPORATED 419 Hosiery Workers at Chattanooga, Tennessee. When he arrived at the depot in Corinth, accompanied by various employees of the respondent, to take the train for Chattanooga, he was met by Weibel and several other persons. Frazier testified that Weibel picked up a stray dog and thereupon remarked to Frazier, "Here is your brother." He further testified that Weibel who appeared to be under the influence of. liquor took hold of his coat, but that a police officer intervened. Weibel testified that, having heard that Frazier was leaving Corinth and believing that Fra.zier's' departure would alle- viate the existing confusion at the respondent's plant, he and several other persons drove to the depot to "see if this fellow does leave town." He further testified that while at the depot he put out his hand to shake hands with Frazier inasmuch as "I wanted to tell him goodbye because I sure hated to see him go." Weibel denied. that he picked up a dog and made a slurring remark to Frazier, but admitted that a police officer had threatened to arrest him fog causing a disturbance at the depot. Under all the circumstances, we conclude that Frazier's testimony regarding the foregoing is to be credited. About October 8, 1935, Frazier, together with Frank J. Ward, another organizer for the American Federation of Hosiery Workers, returned to Corinth to resume organizational efforts. Soon after their arrival, Frazier and Ward held a series of meetings it the Cox Hotel in Corinth and at the homes of various employees. On Octo- ber 10, Ward made an appointment with Mayor Candler in order to explain his presence in Corinth. Together with Frazier, Ward had a talk the same afternoon with Candler at the latter's office. At the outset of the talk, Candler asked for Ward's credentials and then stated that the city of Corinth had a large investment in the respond- ent's plant and that the city would not under any circumstances allow anything to happen which would prevent it from receiving the sums payable to it from the respondent's plant. Candler also told Ward and Frazier that the "best thing that they could do for the peace of Corinth was to fold up their tent and go home." During the course of Candler's talk with Ward and Frazier, Weibel arrived at Candler's office and shortly thereafter Weibel and Candler went to the respondent's plant. At a change in shift at the plant, Weibel called a meeting of the employees and introduced Candler who made a speech. In his introductory remarks, Weibel stated that the plant was not ready to be organized and that if the respondent could not make any money the plant would be shut down. In his speech, Candler informed the employees that the city of Corinth had a large investment in the respondent's plant and re- ceived considerable income therefrom; that if the plant should close down, it would cripple the city and affect everyone in the city; that 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the city of Chattanooga was a place where strikes and strife had been the results of the Union centering its activities there; that if the respondent's plant could not operate profitably it would be closed; that local people could run their own affairs much better "than letting some one from some out of town organization tell you what to do"; that there was no law against the respondent going elsewhere to get workers if the people of Corinth did not have the necessary requirements of competency, efficiency, and faithfulness; that he had told the union representatives that afternoon that the best thing they could do for the peace of Corinth was to fold their tent and go home; that he had also stated that the union representa- tives were furnishing ammunition to stir up trouble and strife; and that the present was-not the time for any such organization as was being advocated. In concluding his remarks, Candler stated that it was a free country and that everyone could exercise their own judge- ment, but that he desired to declare what was the city's interest in the respondent's plant. Ward and Frazier left Corinth on the day Candler made his speech to the respondent's employees and the organizational efforts slackened. There was filed with the Board about this time a charge that the respondent had discharged one Allen McClure in order to discourage union activity. The respondent brought injunction pro- ceedings to enjoin the Board from taking any action with respect to the charge. Shortly before the hearing on the injunction, two petitions were circulated in the plant during working hours. The petitions were to the effect that the employees were satisfied with conditions at the plant and did not want any help from outsiders and that Weibel had never said anything against the union organiza- tion. After the hearing on the injunction, Weibel called a meeting of the employees at which he thanked those who had signed the petitions and stated, "I am not going to forget it, but I can say to you that did not sign it, you might as well start looking for a job now." About May 10, 1937, John McCoy and Lester Adams, organizers for the American Federation of Hosiery Workers, arrived in Corinth for the purpose of instituting a second organizational drive among the employees of the respondent. McCoy and Adams communicated with a number of the respondent's employees and arranged for a meeting at the home of Talmage Bumpass, an employee, on the night of May 11. On the afternoon of May 11, Weibel called a meeting of the respondent's employees and at that time stated that "they are having a union meeting down at Talmage Bumpass' place, you go down there and hear them and join the union if you want to, I am not telling you not to join, but if you do, the union ain't going to hold your jobs for you, I will tell you that." CORIN TH HOSIERY MILL, INCORPORATED 421 About 14 employees of the respondent attended the meeting at the Bumpass house on the night of May 11 and most of them signed, applications for membership in the American Federation of Hosiery Workers. The following day about 12 of the respondent's employees, including G. W. Ambrester, Cecil Tate, and Harold Hin- ton, sought out McCoy and Adams at the Cox Hotel in Corinth, stating that the respondent's employees were satisfied with existing conditions and advising McCoy and Adams to leave Corinth since it "wouldn't be healthy" for them there. Nevertheless McCoy and Adams continued to hold meetings of employees and within 2 weeks had obtained approximately 120 signed union application cards. About May 15, 1937, Weibel called another meeting of the respon- ent's employees at the plant. He informed the employees that he would not tolerate a union and that if a union was formed he would eliminate the "toppers" and require the "leggers" to do their own "topping on." 4 About this same time, G. W. Ambrester and a number of other employees circulated in the plant during working hours petitions to the effect that the persons signing the same did not care to join any organization or union and that their names were not to be considered in determining any majority status of the Union. Don- ald Ambrester, an employee and brother of G. W. Ambrester, testified that he signed such a petition in Weibel's office after obtaining a copy from Syd Wood, a foreman. This testimony was not controverted and we find accordingly. During the latter part of May 1937, the respondent laid off a number of employees and transferred others. The respondent main- tained that this action was made necessary by a shortage of silk. The Union claimed that the action was based on the union activities of the employees affected and filed it charge with the Board. On June 8, 1937, a conference was held in Corinth relative to ' a settlement in regard to the charges which had been filed. The con- ference was attended by Weibel, Adams, McCoy, William H. Kier, an attorney for the respondent, and Gerhard Van Arkel, a Board attorney, As a result of the conference, the following stipulation was signed as a settlement: JUNE 8, 1937. Pursuant to the filing of charges to a representative of the national labor board, following settlements were made pertain- ing to certain employees of the Corinth Hosiery Mill : Ely Peyton will remain on Ludwig and will, be paid 50¢ an hour, the usual time work basis of payment on this machine for 41t appears that the "leggers " were paid on a piece-work basis. Hence requiring the "leggers" to do their own "topping on" would result in reducing the earnings of the "leggers." 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the proper length of time. Mary Kinney will remain at the position she has and will be paid usual rates of 300 an hour for the work for a reasonable period of time. Talmage Bumpass will be changed from third shift Ludwig to second shift Helscher on Monday, June 13. Vera Bumpass will, remain where she is at the present time. Management agrees to give proper consideration to both concerning a day job. Ann Hoover will be placed back to work Monday, May 14, provided however, that examiners work that day. If they don't, will be placed when they resume work. A form notice drawn up by Mr. Van Arkel will be posted on the bulletin board in the mill. NATIONAL LABOR RELATIONS BOARD, GERHARD VAN ARKEL, AMERICAN FEDERATION OF HOSIERY WORKERS, JOHN MCCOY. C. LESTER ADAMS. CORINTH HOSIERY MILL. CORINTH HOSIERY MILL, By CHAS. 0. WEIBEL. The notice, which the respondent agreed to post for 30 days, read as follows : Pursuant to the terms of the National Labor Relations Act, the Corinth Hosiery Mills recognizes the right of its employees to self-organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid and protection. The Corinth Hosiery Mills further agrees : 1. That it will not interfere with, restrain or coerce its em- ployees in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act. 2. That it, will not discourage membership in the American Federation of Hosiery Workers by discharging or threatening to discharge any employee for membership in or affiliation with the American Federation of Hosiery Workers or any other labor organization. 3. That it will not discriminate against any employee as to any term or condition of employment for assuming membership in or affiliating with the American Federation of Hosiery Work- ers or any other labor organization. The Corinth Hosiery Mills has made certain adjustments in the working conditions of certain employees at the request of the National Labor Relations Board and the American Federation CORINT}1: HOSIERY MILL, INCORPORATED 423 of Hosiery Workers pursuant to charges filed with the National Labor Relations Board. June 8, 1937. ( Signed) GERHARD VAN ARKEL, Attorney. 'I'lie notice was posted on the bulletin board at the respondent's plant on June 10, 1937. On the afternoon of June 10, Adams asked Weibel for permission to post a notice announcing a meeting of employees for June 12 at the Cox Hotel in Corinth at which E. F. Callaghan, International Vice President of the American Federation of Hosiery Workers, was to speak and for permission to speak with Walt Wheeler, an employee, concerning the meeting. Weibel stated that it was against the respondent's rules to call anyone out of the plant, but that he would inform Wheeler about the notice and that the ' latter could announce it at a meeting of employees which was to be held the folloiving day. Weibel testified that he informed Wheeler about the notice and also informed him that he could make any announcement concerning the meeting. On June 11 Weibel called a meeting of the employees at the plant. At the meeting Weibel stated, "I think somewhere in the constitution you will find the privilege of free speech. I believe in free speech and, therefore, I am going to make a speech . . ." He then stated in sub- stance that if the employees did not get "this damn mess cleared up by Monday" the plant might be closed down; that he could go to the coast and fish; that it would be the employees who would suffer and .not him; that the employees could ask for a closed shop until they were "black in the face" but that they would not get it; that he was not going to permit any C. I. O. organizer, any Federal attorney, or any so-called Wagner Act tell him how to run the mill; that he had run the mill to'suit himself before and that he would continue to do so. During the course of his remarks, Weibel asked if any of the union members desired to announce the union meeting for the next afternoon. When no reply was made, Weibel stated that such a meeting was to 'be held and advised the employees as follows : Go down and hear Mr. Callaghan. Go down and hear that sil- ver-tongued orator; I will guarantee that he is good. If you are not careful, he will sell you an idea. I heard him on the stage in a theatre in Philadelphia one time, and he had me laughing one minute and crying the next, and when I came to myself I wondered what in the hell I was crying about. That is the way this is- going to be. When this is all over you will wonder what in the hell you are crying about. 247383-40-vol. 7.6--28 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the meeting called by Weibel, G. W. Ambrester announced that he had been requested by a number of workers to call a meeting to be held outside the mill. Mary Kinney testified that Weibel declared that such' a meeting was a good idea and that "we will get a meeting in ahead of them." This testimony was uncontroverted. ' We find that Weibel made the statement attributed to him. It was then decided that the meeting should be held the following morning at the respondent's mill but outside the mill building. At the meeting on the morning of June 12, G. W. Ambrester, who presided, stated that George Meinig, the respondent's president, had spent a million dollars fighting organized labor and that he was in- formed that another million was ready to be spent. Ambrester intro- duced a Mr. McEachern, secretary of the Corinth Chamber of Com- merce, who stated that he could not tell the employees not to join the Union, but if they did so the mill would probably be closed down. He also declared that the respondent's mill had always aided the city of Corinth and had supplied much employment. He added that if the respondent's mill closed down, the city of Corinth would not be able to take care of the persons laid off inasmuch as the workers already on relief were in excess of the number the city could provide for. Syd Wood, a foreman, and Mrs. Weibel, wife of the respondent's superin- tendent, were among the persons attending the meeting. At the close of the aforesaid meeting, someone suggested that the union organizers "be run out of town." A large number of the persons attending the meeting then proceeded to the Cox Hotel where McCoy and Adams were awaiting the arrival of Callaghan. Wood and Mrs. Weibel were among those who went to the Cox Hotel. At the hotel, McCoy and Adams were advised to leave town and Mrs. Weibel, who had a fire extinguisher in her hand, informed McCoy that she would like "to bounce" it off his head. Shortly after 2 p. in. in the afternoon, Callaghan arrived in Corinth and soon thereafter attempted to address a meeting at the Cox Hotel. He was, however, constantly interrupted by questions and by threats of bodily harm. At least one person attending the meeting was armed with a pistol and another displayed an open knife. Callaghan finally decided to give up his attempt to make a speech and further decided to terminate the attempt to continue the organizing campaign among the employees at the respondent's plant. Accordingly, Callaghan, McCoy, and Adams left Corinth on June 12. B. Interference, restraint, and coercion In view of the fact set forth above, it is clear that the respondent, through its officials and also through officials of the city of Corinth, has engaged in numerous acts of interference, restraint, and coercion. CORINTH HOSIERY MILL, INCORPORATED 425 That the respondent is in the instant case properly deemed responsi- ble not only for the acts and statements of its officials but also for the acts and statements herein considered of the officials of the city of Corinth would appear to be beyond question. The evidence shows that not only did Weibel, the respondent's superintendent, work at all times in close cooperation with Candler, the mayor of Corinth, and the other city officials, but also that Weibel openly endorsed the views expressed by the city officials and indeed introduced Candler at a meeting of employees at which Candler expressed his opposition to the union activities which were being. carried on and stated that the city of Corinth had a substantial financial interest in the respondent. It is to be noted in the latter connection that the city of Corinth owns considerable stock in the respondent and receives an income of approx- imately $1,000 a month on such investment. At the beginning of the organizational activities among the em- ployees, Weibel kept under surveillance a number of the meetings of employees. Thereafter, Candler questioned Frazier, the organizer for the American Federation of Hosiery Workers, concerning his activi- ties and advised him to leave town. Sutton, a city alderman, charac- terized Frazier as a "Red" and an "agitator" and stated that he should be "run out of town." 'At this same time, Weibel stated that the re- spondent did not want any outside interference and did not intend to have any organization at its mill. When Frazier left Corinth on one occasion for Chattanooga, Weibel went to the station and made a slur- ring remark with respect to him. After Frazier and Ward, another union organizer, returned to Corinth in October 1935, Candler spoke at a meeting of employees at the respondent's plant, being introduced to the employees by Weibel. At this time, Candler expressed opposi- tion to the union activities which were being carried on and to the activities of the union organizer. In his introductory remarks, Weibel expressed opposition to the union organization and indicated that the plant might be closed down. Thereafter, at a meeting of employees, Weibel intimated that employees who had not signed a petition stating that the employees were satisfied with conditions at the plant and that Weibel had not expressed opposition to union organization, would lose their jobs. Shortly after the arrival in Corinth about May 10, 1937, of McCoy and Adams, for the purpose of instituting a second organizational drive, Weibel called a meeting of employees at which he threatened them with loss of their jobs if they attended a meeting arranged by McCoy and Adams. At a meeting of employees a few days later, Weibel stated that he would not tolerate a union at the plant and threatened to impose additional work on the employees. About this same time, Syd Wood, a foreman, furnished to an employee a copy of 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a petition which stated that the person signing the same did not desire to join any organization or union. Shortly after a settlement had been agreed upon relative to charges of unfair labor practices on the part of the respondent, Weibel called a meeting of employees at which he stated, among. other things, that he was not going to permit any C. I. 0. organizer, any Federal attor- ney, or any so-called Wagner Act to tell him how to run his business, and threatened to close down the plant "unless this damn- mess cleared up by Monday." At this same meeting Weibel spoke in a deprecatory manner concerning Callaghan, International Vice President of the American Federation of Hosiery Workers, who was scheduled to speak to a meeting of employees the following day and endorsed a meeting of employees proposed by G. W. Ambrester, an employee who had previously manifested hostility to union organization. As an after- math of the latter meeting, so endorsed, the employees favorable to union organization were prevented from having their meeting and a situation was created which made practically impossible further or- ganizational activity at that time. We find that by the acts and statements set forth above the respond- ent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. C. The settlement agreement The respondent contends that it signed the settlement agreement of June 8, 1937, and thereafter posted at its plant the notice drafted by an attorney for the Board on the understanding that if it did so "the slate would be wiped clean" and that "if any charges or com- plaints were in the future filed or made against the respondent it would be for things and acts occurring from and after June 8, 1937." It asserts that for this reason the Board may not properly consider any unfair labor practices alleged to have been engaged in.prior to June 8, 1937. We cannot concur in this contention. We think it plain that any understanding reached was not understood by the parties to be a bar to any determination by the Board if the re- spondent immediately thereafter resumed its unfair labor practices. It asserts that for this reason the Board. may not properly consider with- the signing of the settlement agreement and the posting of the notice the respondent began anew its interference, restraint, and coercion. The Board is fully aware of the importance and desira- bility of the enforcement of agreements between employers and labor organizations and realizes that effective administration of the Act and furtherance of its policies require that it pay scrupulous regard to any representations or undertakings of its agent relating to CORINTH HOSIERY 'MILL, INCORPORATED 427 adjustment.' It will, therefore, in a proper case, in the exercise of its discretion refuse to disturb a' settlement.. 'It is clear, however, that no such case is here presented.' D. Discrimination in regard to hire and tenure of employment Ernest B. Davis was first employed by the respondent in June 1931 and worked until he voluntarily quit in January 1935. He was again employed in June 1935 , and worked as a "legger " until March 1, 1936. He joined the Union in October 1935 and thereafter engaged openly in union activities . When Frazier arrived in Corinth in October 1935, Davis was the first employee with whom he communicated and Davis assisted both Frazier and Ward in their organization work. After Ward and Frazier left Corinth , Davis openly continued his attempt to organize the respondent 's employees . On one occasion during October 1935 , Davis left the plant because of illness; the fol- lowing clay Weibel, the plant superintendent, questioned him as to whether he had gone home or "was out doing a little missionary work." Davis testified that the quoted words referred to "union work." We have noted above, that Weibel kept^ .surveillance. on a number of union organizational meetings. Davis attended these meetings. We think it clear and find that the respondent knew of Davis' union activities. On February 28, 1936, Davis was employed on the night shift which worked from 3'p. in. to midnight . At about 7:30 p. in., fol- lowing the usual lunch period, Davis went to the washroom in the plant and smoked a cigarette. As he was about to leave the wash- room I. S. Strickland,? his foreman, entered, saw the smoke-filled room, and asked Davis if he "didn't know it was against the rules to smoke in there." When Davis replied in the affirmative, Strick- land stated , "Well, I am going to have to lay you off ." When Davis asked as to the length of the lay-off, Strickland replied, "I am laying you off indefinitely." Davis testified that on the following afternoon he went to Weibel's office, stated that Strickland had laid him 'off the previous night, and asked if he was "just laid off or fired"; that Weibel replied "Either one that you want "; that when he (Davis ) stated that he did not want to be fired Weibel turned his back and made no reply; that he (Davis ) then stated that if he was fired he wanted his money; and 'Matter of Shenandoah-Dives Mining Company and International Union of Mine, Mill & Smelter Workers, Local No. 26, 11 N. L. R. B. 885; Matter of Godchaux Sugars, Ina. and Sugar Mill Workers' Union, Locals No. 21177 and No. 2188, affiliated with the American Federation of Labor, 12 N. L. R. B. 568. "Matter of Ingram Manufacturing Company and Textile Workers Organizing Committee, 5 N. L. R. B. 908 ; Matter of The Kelly-Springfield Tire -Company and United Rubber Workers of America, Local No . 26 at al., 6 N. L. R. B. 325. 7 Strickland died prior to the date of the hearing. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Weibel replied that he could have it if he wanted it and handed his secretary Davis' time card which was already on Weibel's desk. Weibel's version of the above incident differs somewhat from that of Davis. Weibel testified that Strickland reported to him that Davis was found smoking in the washroom and that he sent for Davis and told him "to take off for a while,"; that Davis inquired about the duration of the lay-off but in accordance with his custom he re- fused to name a definite period; that Davis stated that he did not want to be fired and that he replied, "you are not fired, but you.just take off like the rest of them"; that when Davis then insisted upon knowing the length of his lay-off and stated that he wanted his money, he replied, "If you want your money all right, you have your choice, either your vacation or the money"; and that Davis took the money. In its exceptions to the Intermediate Report of the Trial Examiner, the respondent alleges that "the record shows that Davis was discharged for the reason that he did on March 1, 1936, and prior thereto violate the company's rules by smoking in the plant and by refusing to accept the usual and customary disciplinary measures of an indefinite lay-off, by demanding that he be advised how long he was to be laid off and by demanding immediate payment of his wages." The evidence establishes that since 1931 there had been in effect a rule prohibiting smoking at the plant and that a number of notices were posted in the plant relative to this matter. The record is clear, however, that it was not the practice of the respondent to enforce the rule prohibiting smoking by discharge of employees. Weibel testified that it was the respondent's practice to lay off employees who were caught smoking and then to recall such employees to work after a length of time which would depend upon the circumstances of each particular case, including the manner and attitude of the employee involved. He testified that on one occasion he had refrained from laying off three women employees who were caught smoking so as not to embarrass them, but that all other employees caught smoking were immediately laid off. Several employees testified that they were laid off the first. time they were caught smoking. On the other hand, Davis testified that it was the practice of the plant to warn employees one or two times about smoking before laying them off and testified that a number of employees, including Donald Am- brester and Cecil Wood, had been warned a number of times about smoking before being laid off. Ambrester testified that he had been laid off for smoking on one occasion, but did not testify as to whether or not he had previously been warned. Wood did not testify at the hearing. L. C. Johnson testified that he was caught smoking on one occasion and was merely cautioned not to do so again. CORINTH HOSIERY MILL, INCORPORATED 429 While Davis' case is by no means free from doubt, we are not persuaded by the evidence that Davis' union activities were the cause of his discharge. It is admitted that Davis broke the re- spondent's rule against smoking in the plant. In this connection the evidence as a whole does not sustain Davis' contention that it was the respondent's practice to warn employees one or two times before laying them off. The .respondent's normal practice, it is true, was to lay off rather than to discharge employees who had been caught smoking. However, we believe that Weibel was provoked into dis- charging Davis by his refusal to accept the usual and normal discipline of an indefinite lay-off, his insistence that he be advised of the duration of the lay-off and his demand that he be immediately paid his wages. We accordingly find that the respondent, in the case' of Davis, did not discriminate in regard to hire and tenure of employment and thereby discouraged membership in a labor organization. The alle- gations of the complaint with respect to Ernest B. Davis will be dismissed. A. L. Leather-wood was employed by the respondent as a legger on May 15, 1933, and worked regularly until June 18, 1937. He joined the Union in May 1937 and was active in its affairs. Mike Mc- Clamroch, his foreman, testified that he had heard that Leatherwood was active in the Union. On June 18, 1937, Leatherwood's machine got out of order and, it being the rule that only foremen were allowed to make repairs of any consequence, he asked McClamroch to fix it. McClamroch who was at the time engaged in repairing another machine informed Leatherwood that he would do so as soon as he got time. After repairing the machine upon which he was working, McClamroch repaired the machine of a second employee and then began -repairing the machine of a third employee. He testified that the employees who operated these machines had sought his aid prior to the time that Leatherwood did so. While at work on the third machine, Leatherwood again asked McClamroch to fix his machine. There is conflict in the testimony as to what occurred at this time. Leather- wood testified that McClamroch cursed him and told him to go to his machine and wait until he got there and that when he reached his machine McClamroch came over and told him to "punch out" and wait outside of the mill. McClamroch denied that he used abusive language toward Leatherwood and testified that he told Leatherwood that he did not know how long it would take to repair the machine he was then working on and that he should punch out if he could not find anything to do on his machine. He further testified that when Leatherwood did not follow his instructions but instead made a circle about the mill and engaged in a conversation with Eli Peyton 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he went to Leatherwood and asked him why he had not done as he was told. According to McClamroch's testimony, Leatherwood then stated that he (McClamroch) had been picking on him ever since he joined the Union-and added, "I have got a good mind to slap hell out of you and a couple of fellows right behind me will back me up." When questioned on cross-examination as to whether he had threatened McClamroch, Leatherwood testified, "If he didn't hush cussing me, I told him I was going to knock hell out of him." Eli Peyton, an employee, testified that when Leatherwood saw Mc- Clamroch approaching, Leatherwood stated, "yonder comes the fixer, you watch us, we are going to have it." On the basis of the entire testimony, we conclude that McClamroch's version of the incident is to be credited. After the above incident, Leatherwood "punched out" and waited nearby until McClamroch finished repairing the machine upon which he had been working as well as Leatherwood's own machine. As soon as his machine was repaired, Leatherwood returned to work. After working for some 15 or 20 minutes, he was informed by Mc- Clamroch, who had reported the aforesaid incident to Weibel, that the latter wished to talk with him. When ^ Leather-wood reported at Weibel's office, Weibel asked him to explain his action in the mill and why he desired "to whip McClamroch." Leatherwood replied that he did not like the way he was being treated and that others felt the same way and would back him up in anything that he did. He then mentioned Eli Peyton as among those who had stated that they would back him up. Weibel summoned Peyton and asked him whether Leatherwood's statement was accurate. Peyton stated that if Leatherwood had made such a statement he was "just a damn liar." Weibel then informed Leatherwood that he was being laid off indefinitely and that he would be notified when he could return to work. . After his lay-off t eatherwood went to Chattanooga and had a charge filed with the Board relative to his lay-off. He testified that about a week after his return he went to Weibel's home and requested reinstatement. According to his testimony, Weibel stated that he could not use him, but that if he had stayed home and minded his own business he would have been given his job back. He further testified that Weibel asked if he was "on the union side" and stated that the respondent had $15,000 with which to fight. Weibel testi- fied at the hearing after Leatherwood testified, but made no reference to the above testimony of Leatherwood. We find that Weibel made the statements attributed to him by Leatherwood. Although we think that Weibel's statements at the time Leather- wood applied for reinstatement cast doubt on the respondent's claim that Leatherwood's lay-off was predicated on his insubordination and CORIN TH HOSIERS' MILL, INCORPORATED 431 threat that he would assault McClaniroch, we conclude that the evi- dence does not sufficiently establish that Leatherwood's union membership was the reason for the lay-off. We conclude- however that Leatherwood's union activity and membership was the reason that Weibel refused to reinstate him at the time Leatherwood re- quested that he be allowed to return to work. We find that by refusing to reinstate Leatherwood to employment upon his application therefor the respondent discriminated in regard to his hire and tenure of employment, thereby discouraging mem- bership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. While. working for the respondent Leatherwood earned approxi- mately $25 per week. He was unemployed from June 18, 1937, until about September 20, 1937, at which time he was employed by the Baker-Moise Mills at Dallas, Texas, where he was working at the time of the hearing. At the Baker-Moise Mills, Leatherwood earned approximately $33 or $35 per week. He testified that his home was in Corinth and that he desired reinstatement at the respondent's mill. L. C. Johnson. began to work for the respondent on September 2, 1935, and worked as a "legger" until September 29, 1937. He joined the Union in May 1937 and was active in its affairs. . Several months prior to September 29, 1937, Weibel instructed Johnson to learn to operate a footer machine and promised that he would be assigned from the legger machine to the "footer." Accord- ingly, for the following 2 or 3-weeks, 'Johnson-went to.the,'millFeach day, about 3 hours before starting time for his shift and devoted ,such time to learning to operate a "footer." It appears that about this time Weibel instructed the leggers to learn the "topping on" process. On September- 28, 1937, all the employees on the shift on which Johnson worked were informed that they would have to "top on" that night. Weibel testified that several hundred ."top ons" had .accumulated in the plant and that he had ordered everyone to "top on" until the accumulated material was cleared up. Although we have noted above that about May 15, 1937, Weibel threatened to eliminate the "toppers" and to require each legger to do his own topping on if a union was formed at the plant, we conclude that the evidence as a whole does not establish that the order of September 28 was foil other than business reasons. Johnson testified that he was unable to do the "topping on" be- cause it was a difficult process requiring considerable training and that he informed his foreman that he was unable to do the work. According to Johnson's testimony, his foreman replied that he would 432 DECISIONS OF' NATIONAL LABOR RELATIONS `BOARD have to learn and that accordingly he tried the entire night to "top on" but was wholly unsuccessful. He also testified that the following day he informed Weibel that he was unable to do the work because he had no training for such work and reminded Weibel- of his promise to assign him to a "footer," but that Weibel told him to go back and "top on" or "punch out." He further testified that he stated to Weibel,'"Now, you don't feel like doing a damned thing for me, and I know, why, because I joined the union" and that he did not want to punch out, and that after the latter remark Weibel told him to "go ahead and punch out" and that his money would be ready 'at- 9 o'clock the next morning. When questioned on cross-examina- tion as to whether Weibel had suggested that he get glasses, Johnson testified that Weibel had "said something about getting glasses." He also testified on cross-examination that following his discharge he had threatened to "beat up" Weibel. Weibel testified that Johnson came to his office on the morning of September 28 in, a highly excitable and nervous condition and stated that he could not "top on" and was not going to do-so; that, in response to his question as to why he could not do so, Johnson stated that he "couldn't see them"; that he suggested that Johnson get some glasses, but that Johnson replied, "They won't do me no damn good-if I did get glasses"; that he informed Johnson that he .would have to "top on" because every legger at the plant would have to do so and that Johnson "got personal" and stated that "he didn't like me a damn bit and didn't like the way that I was acting"; that he replied to Johnson, "that is mutual, and so you just go your way." Weibel testified further that Johnson thereupon asked for his money and that he replied that he could get it at 9 o'clock the next morning. A number of employees who worked on the same shift as Johnson testified that Johnson stated on the night on which the legger began to "top on" that his eyesight was too poor for him to do such work. Although Johnson testified generally that his eyesight was good, he Admitted on cross-examination that he was somewhat nearsighted. At the hearing the respondent requested that Johnson have his eyes examined by a competent oculist of his own choice and that the oculist's report be included in the record but Johnson, upon the advice of counsel for the Union, refused to have such examination 'made. In light of the uncontradicted testimony of the employees who testified that Johnson stated on the night that the "leggers" began to "top on" that his eyesight was too poor for him to "top on," John- son's admission on cross-examination that he was somewhat near- sighted, and that Weibel may have said something to him "about getting glasses," we believe that Weibel's version of the conversation CORINTH HOSIERY MILL] INCORPORATED 433 surrounding the discharg' of -Johnson is more consistent with all the facts, and accordingly we shall credit it. Johnson testified that about 3 or, 4 days after his discharge, he ,asked Weibel to let him return to work and that Weibel replied "I • don't know," "I will have to think it over," and "you damn boys get mighty smart some time." He also testified that some weeks later he again sought reinstatement and that Weibel stated, "I. am not going to put you back in there, I have got enough trouble in there already." He further testified that on one of the occasions on which he saw Weibel he met Syd: Wood, a foreman, who in response to .his request that he get Weibel to reinstate him, stated, "I couldn't do much about it, Johnson . . . I don't know why you ever signed up with the Union, I knew that you would get fired on account of it . . . Johnson, I could have told you that -you were going to lose your job, but it wasn't any of my business and you wouldn't have paid no attention to me anyway." Although Weibel testified at the hearing after Johnson testified, he made no reference to the above testimony of Johnson. Wood did not testify. We find that Weibel and Wood made the above statements which Johnson attributed to them. Despite Wood's observation to Johnson when he asked Wood to get Weibel to reinstate him, which reveals an anti-union animus, and throws suspicion on Johnson's discharge, we are of the opinion that the weight of the evidence does not sustain the allegations of the complaint that' Johnson was discharged and refused reinstate-. anent because of his union activity. On the contrary, the evidence as a whole indicates that for reasons unconnected with any union -activity, the respondent insisted that all "leggers" would have to "top. on"; that Johnson, due to his weak eyesight was unable to "top on"; and that the next day a heated argument ensued between Weibel and Johnson over Johnson's difficulty in "topping on" which resulted in the latter's discharge. We accordingly find that the respondent, in the case of Johnson, did not discriminate in regard to hire and. tenure of employment and thereby discourage membership in a labor organization. The allega- tions of the complaint with respect to L. C. Johnson will be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with operations of the respondent -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 to labor disputes burdening and obstructing commerce and the free flow of commerce. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act;' aiid'to restore' as, nearly as,,possible -the conditions :which.: existed prior to the commission of the unfair labor practices. We have found that by refusing to reinstate Leatherwood to em- ployment upon application therefor shortly after June 18, 1937, the respondent discriminated against him. We shall order the respondent to offer Leatherwood reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights 'and privileges. We shall also order the respondent to make him whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to that which he normally' would have earned as wages from the date of the discrimination to the date on which the respondent offers him reinstatement, less : his • net, earnings 8 during said period. Upon the basis of the foregoing findings of fact and upon the .entire record in the case, the Board makes time following: CONCLUSIONS OF LAW 1. American Federation of Hosiery Workers is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of A. L. Leatherwood, and thereby- discouraging membership in the Union, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices within the meaning of 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. "By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge or other discrimination 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. C0111-NTH HOSIERY MILL, INCORPORATED 435 5. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (1) and (3) of the Act, with respect to Ernest B. Davis and L. C. Johnson. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Corinth Hosiery Mills, Corinth, Mississippi, and its officers, agents; successors;,andsassigns;-shall: 1. Cease and desist from : (a) Discouraging membership in American Federation of Hosiery Workers or any other labor organization of its employees by refus- ing to reinstate any of its employees, or in any other manner dis- criminating with regard to their hire and tenure of employment or any term or condition of employment because of membership in American Federation of. Hosiery Workers or any other labor organi- zation of its employees; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid and protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take" the following affirinative action which the Board finds will effectuate the policies of the Act: (a) Offer to A. L. Leatherwood immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges; (b) Make whole A. L. Leatherwood for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of the discrimi- nation to thwdate''on whichtheurespondent offersihiin=reinstatement, less his net earnings during said period ; deducting, however, from the amount thus to become due him, monies received by him during said period for work performed upon Federal, State, county, munici- pal, or other work-relief projects, and pay over the amount, so de- ducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (c) Post immediately and keep posted in conspicuous places in and about its plant at Corinth, Mississippi, for a period of at least sixty 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (60) consecutive days, from the date of the posting, notices to its employees stating that it will cease and desist in the manner set forth in paragraphs 1 (a) and (b), and that it will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; (d) Notify the Regional Director for the Fifteenth Region in writing .within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. 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 (1) and (3) of the Act, in so far as it concerns Ernest B. Davis and L. C. Johnson. MR . WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.