Mission Hosiery Mills-A. H. Wittenberg, Inc.

In the Matter of MISSION HOSIERY MILLS-A. H. WITTENBERG, INC. and TEXTILE WORKERS ORGANIZING COMMITTEE, LOCAL No. 99 Case No. C-901.--Decided October 30, 1939 Silk Hosiery Manufacturing Industry-Interference, Restraint , and Coercion: expressed opposition to labor organization ; public discharge of union member and public warning to remaining union members-Discrimination : lay-offs : for filing charges under the Act ; discharges : for union membership and activity ; charges of, not sustained as to four employees-Reinstatement Ordered: dis- charged employees; employees laid off-Back Pay: awarded. Mr. David Sokol, for the Board. Fleming t Robbins, by Mr. Clay Robbins, and Mr. Clifford S. Tinsman, both of Los Angeles, Calif., for the respondent. Black, Hammack cfi McWilliams, by Mr. Carey McWilliams, of Los Angeles, Calif., for the Union. Mr. F. Hamilton Seeley, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Textile Workers Organizing Committee, Local No. 99, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-first Region (Los Angeles, Califor- nia), issued its complaint, dated May 19, 1938, against Mission Hosi- ery Mills-A. H. Wittenberg, Inc., Los Angeles, California, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondent and the Union. Concerning the unfair labor practices, the complaint alleged, in substance, that the respondent (1) terminated the employment of six 16 N. L. R. B., No. 77. 925 926 DECISIONSi OF NATIONAL, LABOR RELATIONS BOARD named employees 1 solely on account of their union activities; (2) reinstated three of these employees 2 not to their regular positions but to inferior positions with a reduction in pay, solely on account of their union activities; (3) demoted E. D. Vickery, an employee, to an inferior position with a reduction in pay, solely because of his union activity; (4) refused to reinstate to their regular positions of employment the aforesaid seven employees, solely on account of their union activity ; (5) by trickery and other devices, secured the union application cards of 10 of its employees, confronted these employees with proof that they were members of the Union, and informed said employees that they and the Union were only there to cause trouble and that continued membership in the Union would be the cause for their discharge; and (6) that by the above-mentioned activities, and by criticizing, discrediting, and reviling unions and telling its employees that it would discharge them if they joined the Union and that it would never recognize or have any dealings with the Union, and by other acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Upon supplemental charges duly filed by the Union, the Regional Director issued a supplemental complaint, dated May 27, 1938, against the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce with- in the meaning of Section 8 (1), (3), and (4) and Section 2 (6) and (7) of the Act. Copies of the supplemental complaint and supple- mental notice of hearing thereon were duly served upon the respond- ent and the Union. Concerning the unfair labor practices, the supplemental complaint alleged, in substance, that the respondent (1) terminated the em- ployment of E. D. Vickery and Thomas E. Kinney solely because they filed charges with the Board; (2) terminated the employment of Charles E. Wickham, an employee, solely on account of his union activities and affiliations, and that the respondent, by these and other acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On June 3, 1938, the respondent filed its answer to the complaint and supplemental complaint, in which it admitted the allegations concerning the nature and scope of its business, but denied the allega- tions concerning the unfair labor practices. Pursuant to notice, a hearing was held on June 6, 7, 8, 9, and 10, 1938, at Los Angeles, California, before Thomas H. Kennedy, the 1 These employees were : Harry Bell, Lester B. Routh, Oris Clinedinst, Thomas E. Kinney, Charles E. Wickham, and Bert Swoyer. 2 These employees were : Thomas E. Kinney, Charles E. Wickham , and Bert Swoyer, MISSION HOSIERY MILLS 927 Trial Examiner duly designated by the Board. The respondent, - the Union, and the Board were represented by counsel and partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing, the Trial Examiner made numerous rulings upon motions and objec- tions to the admission 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 August 12, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the respondent and the Union. He found that the respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (4), and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from its unfair labor practices, reinstate with back pay five employees,3 and post notices in its plant stating that the respondent would cease and desist from its unfair labor practices. The Trial Examiner further recommended that the original complaint be dismissed in regard to E. D. Vickery, Thomas E. Kinney, Charles E. Wickham, and Bert Swoyer, and that the supplemental complaint be dismissed in regard to Charles E. Wickham. On September 19, 1938, the respondent, and on September 23, 1938, the Union, filed exceptions to the Intermediate Report. The parties, although accorded an opportunity to request oral argument before the Board, did not do so. The Board has reviewed all the exceptions to the Intermediate Report, and finds them without merit except as they are consistent with the findings, conclusions, and order hereinafter set forth. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Mission Hosiery Mills-A. H. Wittenberg, Inc., a California cor- poration with its principal office and place of business in Los Angeles, California is engaged in the manufacture, sale, and distribution of ladies' full-fashioned silk hosiery. The respondent's president, A. H. Wittenberg, owns all of the authorized capital stock of the respond- ent, with the exception of two qualifying shares. The respondent maintains a branch sales office in San Francisco, California. The respondent employs 12 salesmen and 7 of these operate in States 3 These employees were Harry Bell, Lester B. Routh, Oris Clinedinst , Thomas E. Kinney, and E. D. Vickery. 928 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD other than the State of California. The respondent also has; agents located in Venezuela, Hawaii, and Costa Rica. There. are approxi- mately 400 production workers employed at the Los Angeles plant. The principal raw materials used by the respondent are silk, yarn, elastic, dyes and chemicals, boxes, labels, and advertising supplies. During 1937,4 the respondent purchased $250,292.37 worth of such raw materials. Of this amount, $223,506.33, or 89.30 per cent, was for raw materials purchased outside the State of California. The principal raw material used by the respondent is' silk, which is pur- chased from Japan, and which amounted to $205,472.15 during 1937. Respondent's gross sales during 1937 amounted to $998,352.72. Of this amount 28.01 per cent. represented sales outside the State of Cali- fornia. The respondent's finished product is sold under the trade- mark names of "Mission Knit," "Hollyvogue," and "Sunkist." H. THE LABOR ORGANIZATIONS INVOLVED Textile Workers Organizing Committee, Local No. 99, affiliated with the Committee for Industrial Organization,5 is a labor organ- ization admitting to membership all production employees of the respondent, excluding foremen, supervisors, salesmen, and office help. American Federation of Hosiery Workers is a labor organization formerly affiliated with the American Federation of Labor and, since March 1937, affiliated with the Committee for Industrial Organiza- tion.5 It admits to membership production and maintenance workers in the hosiery industry. In December 1937, Local No. 99 of the Textile Workers Organizing Committee was chartered. By an agreement with the American Fed- eration of Hosiery Workers, T. W. O. C. Local No. 99 took over the members of A. F. H. W. who were employees of the respondent. Dur- ing 1938, the labor organization here involved has been T. W. O. C. Local No. 99. Both it, and its predecessor, Local 43, A. F. H. W. are herein referred to as the Union since it is unnecessary for the purposes of this case to distinguish between membership in the two or- ganizations. III. THE UNFAIR LABOR PRACTICES A. Background In 1934 the Union had a substantial number of members among the employees of the respondent. On March 30, 1934, the Union called a strike in an effort to obtain a closed-shop agreement with the re- 4 Wittenberg testified at the hearing that the purchases of raw materials and'the- gross sales were substantially;the same for the year 1938 as during the year 1937.. Now Congress of Industrial Organizations. MISSION HOSIERY MILLS 929 spondent. The strike lasted approximately 3 months and the Union was unsuccessful in enforcing its demands. The respondent's presi- dent, Wittenberg, has always maintained that before he would operate under a closed-shop agreement, he would "throw the keys away and close" his place of business. As a result of the unsuccessful strike, the effectiveness of the Union was greatly diminished and the members dropped out of the Union. By 1935 the Union no longer amounted to a force in the labor relations in the respondent's plant. During the summer of 1936, one Reeves, a former employee of the respondent, commenced reorganizing the Union at the respondent's plant. Approximately 40 of the respondent's employees signed cards signifying their desire to join. On July 30,'1936, Clyde Decker, a union organizer, accompanied by a committee of three employees, requested a conference with Wittenberg. At the conference the com- mittee claimed to represent 75 per cent of the employees and made certain requests pertaining to an increase in the rate of pay and the number of hours of work per day. Wittenberg demanded of Decker that he divulge the names of the employees that belonged to the Union. Decker refused to disclose this information. Wittenberg then forced Decker to withdraw from the conference and the committee was in- formed that business did not warrant a wage increase. This conference occurred in the morning. That afternoon Wittenberg called a meeting of all the employees at the plant at which he discussed the morning conference. Wittenberg claimed that the committee had threatened to call a strike on the following day unless their. demands were granted." He then asked "the people that are satisfied here with the work you are getting without striking, step forward." A majority of the employees present did so. Wittenberg then asked those who were not satisfied to raise their hands. At first no one answered and Wittenberg, apparently referring to Decker's claim of a majority, said, "When a man comes in out of a blue sky and makes that kind of a statement, unless you are just a bunch of hypocrites, he doesn't make that kind of a statement, and the least that you can do is to be honest." About 13 employees raised their hands. Wittenberg then said, "We are going to discharge this meeting now. If you fellows are not satisfied with the way I run this plant, get your tool boxes and get out of it." After this meeting there was a cessation of union activity until July 1937. Some of the events described above occurred before the effective date of the Act, and others were not alleged in the complaint, since the allegations of the complaint were limited to events occurring in the calendar year 1937 and subsequent thereto. Therefore we make 9 No strike was mentioned at the conference. 930 DECISIONS( OF NATIONALS LABOR RELATIONS BOARD no findings.of unfair labor practices as to these events, but they may be properly considered as tending to explain the respondent's sub- sequent conduct. . During July 1937, Ray Johnson, a discharged employee, commenced soliciting members for the Union and several employees signed union application cards. The respondent's superintendent, Homer David, and other supervisors soon learned of the revived union activity. Shortly thereafter, on August 2, 1937, a meeting of all employees was called. There is a conflict in the testimony as to who actually called the meeting. The respondent denies that it was called by Wittenberg. However, it is significant that some of respondent's own witnesses believed that the meeting was called by Wittenberg. The evidence is clear and undisputed that Mittman, a foreman, advised employees. to attend, and that the meeting was largely conducted by Wittenberg, David, and Mittman. Wittenberg addressed the meeting and gave as the ostensible purpose of the meeting that certain employees were trying to get David discharged. Mittman then called Harry Bell,_ an employee,-up before the crowd and accused him of calling'-David 'ca "son-of-a-bitch." Mittman then told the crowd, "Harry Bell is the ring leader of the trouble-makers in here and I don't think much of you boys who want to work with a fellow like that." A heated argu- ment then developed between Bell and David, which resulted in Bell being discharged then and there. After Bell left the meeting, David called nine of the union members forward and told them that he had their union cards. One of these union members testified, "Mr. David called us up in a bunch. Some of the boys who were afraid of getting fired if they [the management] found out that they were in the Union denied they had signed application cards, and Mr. David said, 'I know you did sign it because we have compared your handwriting with the signatures.' " David then told the group, "All of you can go back to work now, but if anything happens in any way out of line, you will be discharged." One of the respondent's witnesses testified that David did not see the union cards until some 3 weeks after the meeting of August 2, 1937. In view of the overwhelming weight of testimony from em- ployees present at the meeting in regard to David's assertions that he had 'compared the signatures on the cards with the office records, it is apparent that David saw the cards before the meeting.. It is-equally apparent that the discharge of Bell, an active union member, and the public warning given the remaining union members, were designed to impress the balance of the employees with the respondent's hostility T See Jeffc)Y-De Witt Insulator Co. and Local No. 455, United Brick and Clay Workers of America, 1 N. L. R. B. 618, order enforced in 91 F. (2d) 134 (C. C. A. 4th), certiorari denied, 302 U. S. 731; National Labor Relations Board V. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261. MISSION HOSIERY MILLS 931 to the Union. So open and flagrant an indication of hostility toward the Union on the part of representatives of the management, in the presence of Wittenberg, necessarily exercised a coercive influence upon the employees present. Homer David was discharged by the respondent after charges were filed under the Act and prior to the hearing. Wittenberg testified in regard to David's discharge that, "David was responsible for creating all the trouble . . . he was . . . discharged because of these activities and causing the company all this trouble." David did not testify. The effect of the meeting upon the employees is clearly shown by the testimony of the 'union organizer, who testified, "It stopped the organizational activities dead." We find that by the above-described acts the respondent interfered with, restrained, and coerced its employees in their exercise of the right to self-organization, to form, join, or assist a labor organiza- tion, 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 or protection, as guaran- teed in Section 7 of the Act. B. The discharges Harry Bell. The complaint alleges, and the Trial Examiner found, that Bell was discharged because of his union activities. The respondent contends that Bell was discharged for ' insubordination and because he called David an opprobrious name. Bell started to work for the respondent as a knitter in July 1934, and his weekly earnings were approximately $35. Thereafter Bell received successive promotions until shortly before his discharge his weekly earnings were between $50 and $60. Bell was admittedly one of the best knitters employed by the respondent. He joined the Union on July 20, 1937, and became very active ;n soliciting members for the Union and in distributing union literature. On August 2, 1937, Bell was publicly discharged at the meeting of the employees, described above. On August 5, 1937, Bell talked to David about reconsidering his discharge. David admitted that Bell was a good knitter but said that he could. not put Bell back on. David said, "You ought to be more careful as to what you sign your name to." When asked by Bell what he meant, David said, "You signed one of those union cards, didn't you?" Approximately 3 weeks before the meeting on August 2, 1937, Bell and Maylan Lowder, a fellow employee, were discussing the prices that they received for their work and Bell allegedly remarked, "If it weren't for that son-of-a-bitch Homer David, we,would be getting 932 DECISIONS; OF NATIONAL LABOR RELATIONS BOARD more than we are getting." There was no other person present at the time the alleged remark was made. Shortly thereafter Mittman and David talked to Lowder, and , as Lowder testified, gave him the "third degree" until he "squealed" about Bell's remark . Apparently nothing was said or done about the matter by either Mittman or David until the meeting held on August 2. It does not appear that either Mittman or David made any attempt to question Bell about his alleged remark prior to the meeting . At the meeting Mittman called Bell and Lowder up before the group and accused Bell of making the alleged remark . Mittman then said, "Harry Bell is the ringleader of the trouble-makers in here and I don't think much of you boys who want to work with a fellow like that." A heated argument developed and Bell accused David of using "stool-pigeons" (evidently referring to Lowder ) who made "a big long story out of nothing." Wittenberg denied this and Bell replied, "I don't know that you do, but I know that David does, and I can prove it." Whereupon, as Bell testified, "Mr. David blowed up and said, `You are fired right now."' Bell then left the meeting. There is some conflict in the testimony as to whether or not Bell denied the remark at the meeting. Bell testified at the hearing that he had denied it at the meeting and he further denied ever having made the alleged remark. We do not believe that it is necessary to resolve this conflict in the testimony in view of the circumstances surrounding the meeting. The alleged remark, if made at all, was made in a private conversation about 3 weeks before the meeting. Apparently cursing is not uncommon around the plant. Neither Mittman nor David made any attempt to reprimand or punish Bell until sometime afterwards .. It was finally seized upon at the meeting of August 2, which had obviously been called to combat the union activities of the employees . We are convinced , and find, that Bell's discharge.was planned in advance and designed to feature the dem- onstration of anti-union sentiment by the respondent . We find that the alleged remark was a mere pretext for his lischarge. At the time of his discharge Bell was earning between $50 and $60 per week. Lester B. Rout& The complaint alleges, and the Trial Examiner found, that Routh was discharged on August 24, 1937 , solely on ac- count of his union membership and activities . The respondent con- tends that Routh was discharged because he failed to oil the needles on his machine after being warned to do so. Routh started to work for the respondent in April 1934 , and his earnings were approximately $40 per week . Thereafter he received successive promotions until at the time of his discharge he was earn- ing $633 per week. Routh joined the Union on August 13, 1936, and MISSION HOSIERY MILLS 933 became very active in its affairs. That the respondent was aware of Routh's membership in the Union is evidenced by the fact that he was one of the group of union members called before the meeting held on August 2, 1937, and warned to "watch their step." On August 24, Routh was approximately 11/2 hours late to work and when he reported to the plant he found that the rest of the crew on his machine had been told to go home by Mittman. Mittman ad- vised Routh to, take the rest of the day off. Since the knitters are paid on as piece-work basis this resulted in no material loss to the respondent. Nothing was said about discharging Routh and he re- mained around the plant fixing an appliance on his automobile. While so engaged Mittman told hint that David wanted to see him. He went to David's office and Routh testified to the following con- versation: "We sat there for a minute, then he (David) said, `Routh, I don't guess I will have any more work for you,' and I said, `What is wrong?' and he said, `I couldn't ask for any more production or better work than you have given,' and I asked what it was then, and he said they wanted satisfied employees there, and I said, `What gave you the idea I wasn't satisfied?' He said, `You signed a union card, didn't you?"' This version of the conversation was not con- tradicted, and we accept it as true. The respondent's contention that Routh was discharged because he failed to oil the needles after being previously warned, does not. bear analysis. -The only time that it appears front the record that Routh failed to oil the needles occurred at least 2 weeks before his dis- charge. It was apparently the duty of the night shift to oil the needles and it is uncontradicted that at the time of his discharge Routh was working on the day shift. It should be noted that Routh was not informed of his alleged failure to oil the needles at the time of his discharge. At the hearing Mittman was asked the question "Had the needles been oiled the previous shift?" and Mittman re- plied, "I don't remember." While Routh's lateness on the morning of August 24 was repre- hensible, it appears that it was the first time that it had occurred and the respondent did not at that time appear to attach any im- portance to it. It was not the cause of his discharge. We find that the reason for Routh's discharge was his union membership and activity. Since his discharge Routh has earned approximately $600. Oris Clinedinst.$ Clinedinst entered the respondent's employ in April or May 1934, as a knitter, and his initial pay averaged $30 per Incorrectly spelled "Klinedinst" in the charge and complaint. This was corrected by motion at the bearing. 934 DECISIONS' OF NATIONAL. LABOR RELATIONS BOARD week. He was frequently complimented by David for his work a.nd at the time of his discharge on September 1, 1937, his earnings had increased to approximately $50 per week. Clinedinst joined the Union in the summer of 1936, and was very active in behalf of the- Union. He was a member of the negotiating committee that con- ferred with Wittenberg and he was one of the union members who. were ''segregated at the meeting which followed, the conference.- Clinedinst was also one of the union ' members called forward by David at the meeting on August 2, 1937, and warned to "watch. their step." - On August 30, 1937, Wittenberg called a meeting of the union members in his office, the purpose of which Wittenberg alleged was: "to get your side of the story. I don't want you changing your- stories any." Wittenberg then asked them, "Do you think that I have ever discriminated against the Union or done anything against- it?" Kinney, one of the employees present, answered, "I. think you: have on several occasions." Clinedinst testified, "I told 'hire' (Wit-- tenberg), `I certainly thought he had, because every time any union: activities went on around there, he called a meeting,' and that, seemed to make him very angry and lie stood up and said, `Any time.. I can't call a meeting in my own place of business, I will throw the-. key away."' Two days after this meeting, Mittman provoked an. argument with Clinedinst, stopped the machine on which Clinedinst was working, and ordered him to report to David. David told him: to'go home until he had had time to investigate the matter. That: afternoon a meeting was held in Wittenberg's office. David, Mitt-, man, Wittenberg, Clinedinst; and a representative of the Board were- among those present. A heated argument developed 'in the course of" which Clinedinst and Mittman called each other "liars." Wittenberg- thereupon called Clinedinst a "liar," and said, "Well, you' haven't, been,fired up until now, but now you are fired." The respondent contends in its answer that Clinedinst was not dis- charged but that . he left of his own accord. At the hearing ' the. respondent's contention was that Clinedinst "dared Mittman to fire, him" and that he was discharged for calling' Mittman a "liar." In its exceptions to the Intermediate Report, the respondent contends: that Clinedinst was discharged for inefficiency and untruthfulness. The Trial Examiner found that Clinedinst was discharged solely for his union activity as. alleged in the complaint, and not because of what may-have been his unfortunate choice of expression. It is manifest from a consideration of the evidence that Clinedinst's' dis- charge 2 days after the August 30 meeting was the result of a deliber- ate-scheme and that Mittman's provocative actions were designed to induce Clinedinst to commit some overt act sufficient to provide a. plausible pretext for his discharge.. We find that Clinedinst was dis-- MISSION HOSIERY MILLS 935 charged because of his union membership and activity rather than for the reasons given by the respondent. Thomas E. Kinney.9 The complaint alleges that the respondent discharged Kinney on September 14, 1937, solely because of his union activity, and that on February 14, 1938, the respondent reinstated Kinney not to his former position but instead demoted him, solely because.of his union activity. The supplemental complaint alleged that the respondent discharged Kiiiney^'on May 27, 1938, solely because he had filed charges under the Act. The respondent contends in its answer to the complaint and supplemental complaint that Kinney damaged some hosiery, that he refused to pay the damages assessed, and that he voluntarily quit his job. The respondent further con- tends that Kinney was only laid off temporarily on May 27, 1937, "pending the trial of the cause" and that Kinney would be reinstated at the conclusion thereof. The Trial Examiner found that Kinney had been discriminated against in May because he filed charges under the Act 'and that he had not -previously - been discriminated against because of-his union activity. Kinney started to work for the respondent in July 1934, as a knitter,, And his initial weekly earnings were approximately $30 per week. At the time of his discharge his weekly earnings had increased to approx- imately $45 per week. Kinney joined the Union in 1934 but dropped his membership therein after about 8 months. He rejoined the Union in July' 1937. Thereafter, on August 30, 1937, Wittenberg called the known union members to the meeting in his office hereinbefore referred to. It was, at this meeting that Kinney assumed leadership and' expressed the union objections. On September 14, 1937, Kinney was discharged for the alleged reason that he had damaged 7 dozen pairs of hosiery and had refused to pay for them. The evidence is undisputed that 7 dozen pairs of hosiery had been negligently knitted with "mixed silk." A meeting `vas held in Wit- tenberg's office and he contended that Kinney was responsible for the damage and demanded that Kinney pay the cost price of the hosiery.. Kinney denied responsibility, refused to pay for the damage and was thereupon discharged. It is clear that Kinney was responsible for the damage; several other employees were present at this meeting and at least one of them advised Kinney to pay for the damage.10 There 8'Sometimes referred to as "Emmet C. Kinney" in the pleadings. This was corrected by motion at the hearing. 10 A memorandum of the proceedings was submitted in evidence by the respondent. How- ever, the stenographer who prepared the memorandum admitted at the hearing that it did not purport to be a complete record and that it merely represented "the gist of the conver- sations." Furthermore, the memorandum is itself unintelligible. Accordingly we shall disregard the memorandum as having no probative value tending to prove or disprove the statements. 247383-40-vol. 16-80 936 DECISIONS) OF N'N A'r16 Aj, LABOR RELATIO' S BOARD is some indication in the record that other kiiittei•s had "remixed silk" and had not been required to.pay for the dannage resulting therefrom, but in no instance did the quantity so damage) approach the quantity damaged by Kinney. The record clearly indicates that Kinney would not have been discharged had he agreed to pay for the damaged hosiery. Under all the circumstances , we find that the respondent (lid not discharge Thomas E. Kinney on September 14, 1937, because of his union activities. . On February 14, 1938, Kinney Was reemployed by the respondent. On May 27 , 1938, after the respondent was served with the Board's complaint in this proceeding, Kinney received the following letter : May 27, 1938 (Mr. Emmett Kinney.) DEAR MR. KINNEY : As the Mission Hosiery Mills is cited for trial for June 6, 1938, we feel it is the proper procedure to lay you off until such time as the trial is over, so that there will be no prejudice or collusion from the Mission Hosiery Mills. As you have preferred charges, it is only consistent that we abide by the decision. MISSION HOSIERY MILLS, A. H. WITTENBERG, INC., [S] A. H. WITTENBERG. This action of the respondent was a patent and flagrant violation of the protection afforded by the. Act to employees who file charges or give testimony under the Act. At the hearing the respondent stated' that the "lay-off" was only for the duration of the hearing and that at its conclusion Kinney would be reinstated. In its exceptions to the Intermediate Report, the respondent asserts that Kinney was in fact reinstated following the hearing.". It is no defense to a charge of dis- crimination to assert that the employee was discriminated against only for a short time; the lay-off was in and of itself an unfair labor practice regardless of the respondent's expressed intent to rectify it at the conclusion of the hearing. If the respondent did in fact reinstate Kinney after the, hearing, that fact will be relevant in computing the back pay due to him under our order. We find that the respondent has discriminated against Thomas E. Kinney because he filed charges.under the Act.;, E. D. Vickery. The complaint" alleges that'Vickery. 'was demoted on November 1, 1937, solely because of his union activities. The supplemental complaint alleged that Vickery was discharged on May 27, 1938, solely because he filed charges under the Act. The respond ent contends in its answer that Vickery was demoted because of a MISSION HOSIERY MILLS 937 general curtailment of work while certain machines were being re- paired.11 The Trial Examiner found that Vickery had been discrim- inated against in May because lie filed charges under the Act, and that he had not been, previously discriminated against because of his union activity. Vickery was .employed by the respondent in May 1934, as a knitter, and his weekly earnings amounted to approximately $30. He joined the Union in July 1936, and was a member of the negotiating com- mittee that met with Wittenberg. Vickery was among the union members segregated at the meeting that followed the conference with the committee. After this meeting Vickery was advised by Simms, a foreman, to get rid of his union card or be liable to discharge. Vickery thereupon gave his union card to Simms. Two weeks after giving his card to Simms, David told Vickery, "I am glad to see that you are playing ball with us and not having anything more to do with the Union." Shortly thereafter Vickery received a promo- tion which increased his earnings approximately $10 per week. In July 1937, Vickery rejoined the Union. On August 2, 193'7, he was among the group of union members called forward at the meet- ing and warned to "watch their step." On October 2, 1937, Vickery was laid off for a week because of a dispute with Mittman. He re- turned to work, and on November 1, 1937, he was demoted to another machine with a resulting decrease in his earnings of approximately $10 per week. Vickery thereupon complained to the Regional Direc- tor about the alleged discrimination. The record sustains the respondent's contention that Vickery's de- motion was caused by a general demotion which resulted from the repair of certain machines. It further appears that employees with greater seniority than Vickery also received similar demotions. Ac- cordingly, we find that respondent did not discriminate against E. D. Vickery, on November 1, 1937, because of his union membership or activities. On May 27, 1938, Vickery received a letter from the respondent identical to that received by Thomas E. Kinney and hereinabove set out. For the reasons there given we find that the respondent has discriminated against E. D. Vickery because he filed charges under the Act. Charles E. 'Wickham. The complaint alleges that Wickham was discharged on October 25, 1937, and reinstated on February 24, 1938, to an inferior position, solely on account of his union activities. The supplemental complaint alleged that Wickham was discharged ss In its answer the respondent denied any knowledge of Vickery 's union membership. However, at the hearing Wittenberg admitted such knowledge and the answer was amended accordingly. 938 DECISIONSI OF NATIONAL LABOR RELATIONS BOARD on May 20, 1938, solely on account of his union activity and affilia- tion. The respondent contends in its answer, and the Trial Examiner found, that Wickham was discharged as a result of a curtailment of operations and not because of his union activity. Wickham started to work for the respondent in July 1934. The amount of his initial weekly earnings does not appear in the record. He received several promotions and during 1937 he was earning ap- proximately. $54 per..week.. In March 1936 Wickham joined the Union and became fairly active in its behalf. Wickham allowed his union membership to lapse after the meeting in July 1936, at which the union members were segregated. On July 28, 1937, Wickham rejoined the Union and he was among the union members singled out at the meeting on August 2, 1937, and warned to "watch their step." On October 21, 1937, Wickham voluntarily took a 30-day vacation rather than accept a demotion resulting from the repair of certain machines. At the end of his vacation Wickham applied for work and was told that there was nothing available. On, February 24, 1938, Wickham was notified that there was a job available and he was put.to work on an inferior machine. which resulted in a de- crease of approximately $30 in his weekly earnings. He continued to work on this machine until May 14, 1938, on which (late he was informed that there was no more work there. Several other em- ployees were laid off at about the same time. The record substaii- tiates the respondent's contention that Wickham was laid off because of a general curtailment of operations. We find that the respondent has not discriminated against Charles E. Wickham because of his union activities. Bert Swoyer. The complaint alleges that the respondent discharged Swoyer on October 25, 1937, that the respondent reinstated him to an inferior position on February 24 and that on May 13, 1938, Swoyer was laid off, all because of his union activities. The respondent con- tends in its answer, and the Trial Examiner found, that Swoyer quit his job voluntarily on October 25, 1937, and that his lay-off on May 13, 1938, was necessitated by a curtailment of operations. Swoyer, started to work for the respondent in September 1926. From 1926 until his final lay-off in May 1938, he voluntarily severed his connections with " the respondent on at least four different oc- casions. Swoyer was apparently a good knitter as his -pay at one time averaged about $100 per week. -On July .30, 1930, Swoyer ac- cepted a commission from the respondent to go East to.secure strike- breakers. Swoyer testified that during the strike - in 1934, he acted as a labor spy for the respondent and reported information concern- ing the Union to the brother- of Wittenberg, who in-turn transmitted it to Wittenberg. 'Swoyer testified that he'had been a' member"of fhe Union continuously since 1936. In October 1937, during the curtail- MISSION HOSIERY MILLS 939 ment of work, Swoyer was assigned to a different machine from that which he was working on. He refused the new assignment and vol- untarily quit the respondent's employ. It was not established that this change in assignment was a discrimination against Swoyer. At the hearing he testified "I quit of my own accord." Swoyer was again employed by the respondent in February 1938 and worked until May 13, 1938, at which date he was laid off. Swoyer claimed that he had 'greater seniority"than' some of the employees retained. However, it appears that Swoyer had forfeited his sen- iority rights by his frequent voluntary terminations of employment. The evidence substantiates the respondent's contention that his lay-off was necessitated by a general curtailment in operations. We find that the respondent has not discriminated against Bert Swoyer because of his union activities. We find that the respondent discriminated in regard to the hire and tenure and terms and conditions of employment of Harry Bell, Lester B. Routh, and Oris Clinedinst, thereby discouraging membership in a labor organization, .and interfering-with, ;restrainifg, and.coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. We also find that the respondent discriminated against Thomas E. Kinney and E. D. Vickery because they filed charges under the Act, and thereby interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMMERCE We find that the activities of the respondent set forth in Section III . above, occurring in connection with the 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. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order the respondent to cease and desist therefrom and to take certain affirmative action designed to restore as nearly as possible the condition -which existed prior to the com- mission of the unfair labor practices. We have found that the respondent discharged Harry Bell, Lester B. Routh, and Oris Clinedinst because of their union membership and activity. Accordingly, we shall order the respondent to offer each of these employees immediate and full reinstatement to his former, or substantially equivalent position, without prejudice to 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his seniority and other rights and privileges,, and to make : them whole for any loss of pay they have suffered by reason of the respond- ent's discrimination against them by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings 12 during said period. We have found that Thomas E. Kinney and E. D. Vickery were discriminated against on May 27, 1938, because they filed charges. under the Act. In its exceptions to the Intermediate Report, the respondent asserts that they were reinstated following the hearing. While we do not imply that this assertion is false, it is not in the nature of evidence from which we could make a finding that the men have been reinstated. Accordingly, we shall order the respondent to offer Thomas E. Kinney and E. D. Vickery immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to snake them whole for any loss of pay.they have suffered. by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to the amount which he nor-' mally would have earned as wages from May 27,;1938, to the date of the offer of reinstatement, less his net earnings during said period: If Kinney and Vickery have been reinstated, our order of reinstate-, ment will already have been complied with. We have found that the respondent has not discriminated against Charles E. Wickham and Bert Swoyer. Accordingly, we shall dis- miss the original complaint and the supplemental complaint in regard to them. The allegations of the original complaint will be • dismissed as to Thomas E. Kinney and E. D. Vickery. Upon the basis of the foregoing findings of fact and upon the entire record in this case, the Board makes the following : CONCLUSIONS OF LAW 1. Textile Workers Organizing Committee, Local No. 99, and American Federation of Hosiery Workers, Local No. 43, are labor organizations, within the meaning of Section 2 (5) of the Act. 12 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 and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters end'Joiners of Amer- ica, 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. ' MISSION HOSIERY MILLS 941 2. By interfering with, restraining, and coercing its employees in the exercise of their right 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 pro- tection, as 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. 3. By discriminating in regard to the hire and tenure of employ- ment of Harry Bell, Lester B. Routh, and Oris Clinedinst, and each of them, thereby discouraging membership in a labor organization, the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (3) of the Act. 4. By laying off Thomas E. Kinney and E. D. Vickery because they had filed charges under the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (4) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent has not discriminated in regard to the hire or tenure of employment or any term or condition of employment of Charles E. Wickham or Bert Swoyer, within the meaning of Section 8 (3) of the Act. 7. The respondent has not discriminated in regard to the hire or tenure of employment or any term or condition of employment of Thomas E. Kinney or E. D. Vickery as alleged in the original com- plaint, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Mission Hosiery Mills-A. H. Wittenberg, Inc., Los Angeles, California, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Textile Workers Organizing Committee, Local No. 99, or any other labor organization of its em- ployees, by discharging, laying off, or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment ; 942 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD (b) Discriminating against any employee because he has filed charges under the Act; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed lin Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Harry Bell, Lester B. Routh, Oris Clinedinst, Thomas E. Kinney, and E. D. Vickery immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; (b) Make whole Harry Bell, Lester B. Routh, Oris Clinedinst, Thomas E. Kinney, and E. D. Vickery for any loss of pay they have suffered by reason of the discrimination against them, by pay- ments to, each of,them. of. a ,sum, oft money equal ..,to ,that. which each. would normally have earned as wages during the period from the date of his discharge or lay-off to the date of the offer of reinstate- ment, less his net earnings during said period, deducting, however, from the amount otherwise due to each of said employees, monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other work-relief pro- jects; and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (c) 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 set forth in 1 (a), (b), and (c), and that' it='will':take, the affirmative action set forth in 2 (a) and (b) of this Order; (d) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the original complaint, in so far as. it alleges that the respondent has discriminated in regard to the hire or tenure of employment or any term or condition of employment of Thomas E. Kinney, E. D. Vickery, Charles E. Wickham, and Bert Swoyer, and the supplemental complaint in regard to Charles E. Wickham, be, and they hereby are, dismissed.