Jac Feinberg Hosiery Mills, Inc.

In the Matter of JAC FEINBERG HOSIERY MILLS, INC. and AMERICAN FEDERATION OF HOSIERY WORKERS NORTH CAROLINA DISTRICT' Cases Nos. C-774 and R-770.Decided January 19, 1940 Hosiery lIia'n'ufacluring Industry-Intetq'ereuee, Restraint, wed Coercion: hostility to organizational activity of and employee membership in "outside" union expressed by general manager of respondent in four speeches to em- ployees and in conversation with individual employees ; shut-down of mill fol- lowed by removal of legging stock for purpose of intimidating employees- Company-Dominated Union: formation of, result of respondent's unfair labor practice of creating fear in the minds of employees and townspeople that respondent would move mill unless "outside" union was eliminated from plant; respondent, who by such practice diverts his employees from adherence to one union to formation of another, interferes with formation of latter-Dtscrimt- nation: as to tenure of employment ; charges of sustained as to two employees discharged, one demoted in rank and discharged and one not recalled after mill reopened because of their union membership and activity ; charges of, dismissed as to two employees ;Reinstatement Ordered: employees found to have been discriminated against-Back Pay: awarded-Collective Bargain- ing: charges of refusal to, dismissed-Investigation of Representatives: con- troversy concerning representation of employees: refusal to recognize petition- ing union-Unit Appropriate for Collective Bargaining: production and maintenance employees excluding office and supervisory employees-Election Ordered: company-dominated union excluded from ballot ; election to be con- ducted at such time as the Board shall in the future direct. . Mr. John T. Mahoney and Mr. Marion A. Prowell, for the Board. Mr. David R. Baer, Carothers and Dickert, by Mr. Edwin Carothers, of Rock Hill, S. C., and Wilson and Wilson, by Mr. W. B. Wilson, of Rock Hill, S. C., for the respondent. Mr. Henry I. Adams, of High Point, N. C., for the Federation. M , .J. ' M. Blackmon, of Rock Hill, S. C., for Rock Hill Union. Miss Margaret M. Farmer, of counsel to the Board. ' Incorrectly designated in some of the pleadings as American Federation of Hosiery Workers. A motion to conform the pleadings to the proof was granted at the close of the hearing. 19 N. L. It. B., No. 72. 667 668 DECISIONS OF NATIONAL LABOR RELA'I TONS BOARD DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 23, 1937, American Federation of Hosiery Workers, North Carolina District, herein called the Federation, filed with the Regional Director for the Tenth Region (Atlanta, Georgia) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Jac Feinberg Hosiery Mills, Inc., Rock Hill, South Carolina, herein called the respondent, and request- ing an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Upon charges and amended charges duly filed by the Federation, the National Labor Relations Board, herein called the Board, by the said Regional Director, issued its complaint, dated December 29, 1937, against the respondent, alleging that the respond- ent had engaged in and was engaging in unfair labor practices affect- ing commerce, within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act. On December 31, 1937, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an in- vestigation of the question concerning representation, and authorized the Regional Director to conduct it and to provide for" an appropriate hearing upon due notice, and, acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of said Rules and Regula- tions, further ordered that the representation proceeding and the pro- ceeding in respect to the alleged unfair labor practices be. consolidated for the purpose of hearing and that one record of the hearing be made. The complaint and notice of hearing in the consolidated cases was duly served upon the respondent, upon the Federation, and upon United Rock Hill Hosiery Employees Union, herein called the Rock Hill Union. The complaint alleged in substance (1) that the respondent encour- aged, fostered, dominated, and interfered with the formation of the Rock Hill Union, and contributed support to it; (2) that the respond- ent discouraged membership in the Federation by discharging and refusing to reinstate 10 named employees 2 for the reason that they 2 Earl Crowe, Helen Ferrell , Basil Funk, D. W. Gilmer, Richard Holyfield, Bernice Humphries , Clem Montieth, Ella Montleth, Mary Morton, and J. L. Stover. As to Crowe. the complaint alleges that he was discharged on or about June 17, 1337, was reinstated on July 1, 1937, and was finally discharged on July 13, 1937. JAC FEINBERG HOSIERY MILLS, INCORPORATED. 669 joined and assisted the Federation; (3) that the respondent refused to bargain collectively with the Federation although a majority of the respondent's employees in an appropriate unit had designated the Federation as their bargaining representative; and (4) that by tho, foregoing acts, by addresses to its employees, by closing its plant in an effort to destroy the self-organization of its employees, and in other ways, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On January 10, 1938, the respondent filed a notice that it would move at the hearing to strike paragraphs 5 and 6 of the complaint 8 on the ground that said paragraphs were not based upon a charge in writing as is required in Article II, Section 3 of the Rules and Regu- lations-Series 1, as amended. On January 11, 1938, the respondent filed its answer, in which it denied that it had caused its manufactured products to be sold and transported in interstate commerce, denied that it had engaged in and was engaging in the unfair labor practices alleged, and averred by. way of affirmative defense that it discharged, refused to reemploy, or failed to reemploy the employees named in the complaint for cer- tain specified reasons not connected with their alleged union member- ship or activity. On January 13, 1938, the Rock Hill Union filed a motion to inter- vene in the case involving unfair labor practices. The Regional Director granted the motion in respect to the issues raised by the alle- gations of the complaint that the respondent dominated the Rock Hill Union, within the meaning of Section 8 (2) of the Act. On January 14, 1938, the Rock Hill . Union filed its answer denying those allegations. Pursuant to notice, a hearing was held in the consolidated cases 4 at. Rock Hill, South Carolina, from January 17 to 22, 1938, before Earl S. Bellmali, the Trial Examiner duly designated by the Board. The : Board, the respondent, and the Rock Hill Union were repre- sented by counsel, the Federation by its representative, and all par- ticipated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. s Paragraph 5 of the complaint alleges that the respondent, by its general manager, called the employees together on certain occasions and advised , warned, and threatened them against joining the Federation . Paragraph 6 of the complaint alleges that the respondent, for the purpose of discouraging and preventing its employees from joining and assisting the Federation , shut down the leggers on June 16 , 1937, and posted notices on June 17 , 1937 , that the entire plant would close and be closed indefinitely. * The Trial Examiner closed the hearing in the case involving unfair labor practices, and immediately thereafter held a hearing in the case based upon the Union's petition for certification of representatives. we shall, however, consider the pleadings, exhibits, and transcripts in both cases as constituting a single record in the consolidated cases, in accordance with the provisions of the Order of Consolidation. 0 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the course of the hearing the Trial Examiner denied a mo- tion of the respondent to strike paragraphs 5 and 6 of the complaint.5 At the close of the Board's case, upon motion of counsel for the Board, the Trial Examiner dismissed without prejudice the allega- tions of the complaint that the respondent had discharged and refused to reemploy Helen Ferrell, Clem Montieth, Ella Montieth, and Ber- nice Humphreys. The Trial Examiner also granted a motion of counsel for the Board to amend the pleadings to conform to the proof and a motion by counsel for the respondent to conform the answer to the proof. On July 2, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, in which he found that the respondent had engaged in unfair labor practices affecting -commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. He recommended that the re- spondent cease and desist from engaging in said unfair labor practices, that it reinstate to their former positions with back pay Earl Crowe, Richard Holyfield, D. W. Gilmer, Basil Funk, and L. J. Stover; and that it withdraw all recognition from and completely disestablish the Rock Hill Union as a representative of any of the respondent's em- ployees. The Trial Examiner further found the evidence insufficient to support the allegations of the complaint relative to the first dis- charge of Earl Crowe on June 13, 1937, the discharge of Mary Mor- ton, and the respondent's refusal to bargain with the Federation, and recommended that the allegations in respect to said discharges and refusal to bargain be dismissed. On July 28, 1938, the Rock:..Hill Union and the respondent, respectively, filed exceptions to the Inter- mediate Report and requested the opportunity for oral argument before the Board. On October 19, 1938, the Board ordered that the Federation be permitted to file with the Board in Washington amended charges of unfair labor parctices; that the record be opened for further pro- ceedings; and that the Regional Director be authorized to issue an amended complaint and to serve notice of further hearing thereon. Upon amended charges thereafter duly filed by the Federation, the Board, by the Regional Director, issued an amended complaintdated March 7, 1939, against the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act. The newly filed amended charges and paragraphs 5 and 6 of the amended complaint alleged that the actions of the respondent described in paragraphs 5 and 6 of the See footnote 3, supra. JAC FEINBERG HOSIERY MILLS, INCORPORATED 671 original complaint 6 constituted. unfair labor practices within the meaning of Section 8 (1) of the Act. The amended complaint and accompanying notice of hearing were duly served upon the respond- ent, the Federation, and the Rock Hill Union. Pursuant to notice a hearing was held at Rock Hill, South Carolina on March 16, 1939, before Edward G. Smith, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel, and the Federation by its representative. Counsel for the Board introduced into the record a stipulation entered into by and between the, attorney for the Board, the respondent, the Federation, and the Rock Hill Union, which provided in sub- stance (1) that no testimony or exhibits other than the stipulation, the amended complaint, the third amended charge and the above- mentioned order of the Board of October 19, 1938, should be intro- duced at the hearing; that the entire record should consist of all the testimony and the exhibits filed at the hearing of January 12 to 22, 1938, the instant stipulation and the documents filed pursuant thereto; that the Intermediate Report filed on July 2, 1938, and the exceptions thereto filed by the respondent on July 28, 1938, should be deemed the Intermediate Report of the entire proceedings and exceptions thereto; that the third amended charge and the amended complaint should be substituted for all prior charges and the complaint; and that the respondent withdraw its motion to strike paragraphs 5 and 6 of the complaint and those portions of its answer which refer to said motion. Pursuant to the terms of the stipulation, the third amended charge and the amended complaint were introduced into evidence. The Trial Examiner granted the motion of counsel for the Board that the stipulation be copied into the record, and also granted a motion made by the respondent that it be permitted to withdraw its motion, made at the first hearing, to strike paragraphs 5 and 6 of the original com- plaint,? that the portions of paragraphs 5 and 6 of its answer which referred to paragraphs 5 and 6 of the original complaint be stricken from the record, and that its answer as so amended be considered as its answer to the amended complaint. The Board has reviewed the rulings of the Trial Examiners at both hearings on motions and on objections to the admission of evidence and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On June 6, 1939, pursuant to notice served on the respondent, the Federation, and the Rock Hill Union, a hearing was held before the Board in Washington for the. purpose of oral argument. The respondent appeared by counsel and presented argument. 6 See footnote 3, supra. + See footnote 3, Supra. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has considered the exceptions of the respondent and of the Rock Hill Union and, save as they are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT .I. THE BUSINESS OF THE RESPONDENT Jac Feinberg Hosiery Mills, Inc., a South Carolina corporation with its only mill at Rock Hill, South Carolina," is engaged in the manufacture of full-fashioned silk hosiery on contract for Jac Fein- berg & Sons, Inc., of New York City. This latter concern purchases and causes to be delivered to the respondent's mill from outside the State of South Carolina all the raw material, consisting of cotton and thrown silk, used by the respondent in the manufacture of its product. The New York concern also purchases the entire output of the re- spondent in the "gray" stage of manufacture, causes it to be delivered from the respondent's mill to its own place of business in New York City and sends it thence to mills other than the mill of the respondent to be finished. The respondent uses annually in the manufacture of its product approximately 80,000 pounds of thrown silk, of the esti- mated value of $225,000, and approximately 10,000 pounds of cotton of the estimated value of $10,000. It manufactures annually between 130,000 and 135,000 dozen pairs of hose. The value of the labor and overhead supplied by the respondent in the manufacture of these hose is approximately $275,000. The respondent employs about 200 employees. II. THE ORGANIZATIONS INVOLVED American Federation of Hosiery Workers, North Carolina District, is a labor organization formerly affiliated with the American Federa- tion of Labor and affiliated since March 1937, with the Congress of Industrial Organizations, herein called the C. I. O. It admits to membership production and maintenance employees in the hosiery industry. United Rock Hill Hosiery Employees Union is an unaffiliated labor organization admitting to membership production and maintenance employees of the respondent. 8 The officers of the respondent , with the exception of David R . Baer, the general man- ager, live and maintain an office in New York City . However, Baer testified that the corporation was domiciled only in South Carolina. JAC FEINBERG HOSIERY MILLS, INCORPORATED 673 III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Late in April 1937, the Federation renewed an attempt, begun and abandoned in 1934,9 to organize the employees of the respondent. On the evening of April 28, 1937, a meeting was held at which a number. of employees joined the. organization. On the morning of April 29 David R. Baer, the general manager of the respondent, invited two employees with whom he was on friendly terms to ride with him in his car and questioned them closely concerning the recent arrival in town of a Federation organizer, and the details of the Federation meet- ing of the preceding evening. One of the employees thus questioned, D. R. Hamilton, had been a leader of employee opposition to the Fed- eration in 1934; the second, Earl Crowe, had joined the Federation, the preceding evening and was shortly to become a leader of the Fed- eration's membership drive within the mill. According to Crowe, Baer's attitude toward the Federation was at this time friendly. Several days later, however, Baer's attitude had changed to one of hostility and he sharply rebuked Crowe for representing him as being unopposed to mill employees joining the Federation, warning Crowe that if he did not stop "misquoting" Baer, he would find it necessary to call Crowe a liar. The unionization of the respondent's employees by the Federation progressed rapidly during the six weeks between the first of May and the middle of June. It was strongly opposed, however, by the respondent and by a group of employees, herein called the anti- Federation group, who were hostile to the introduction of an "out- side" union into the mill. The feeling between the Federation and anti-Federation groups became so intense that certain employees ob- jected to working on machines with members of the opposing group, and production, especially on the footing machines, declined. Some- time early in May, probably about May 6, and again a few days later, Baer entered the controversy by calling all the employees of the mill together between shifts and addressing them on the subject of union activity. In his two addresses Baer called attention to the drive then being conducted in that territory by "a certain: organization," re- minded them that a controversy was going on between "two organi- zations," the names of which he stated his hearers would know from 9 During the year 1934 the Federation , at that time affiliated with the American Federa- tion of Labor, attempted , with some measure of success to organize the employees of the respondent. This attempt was terminated, however, at the time of the United Textile workers' strike in September 1934. Although the Federation thereafter maintained its contact with a few individual employees , organizational work was not renewed until April 1937. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reading the newspapers, and expressed the opinion that it would not benefit them to ally themselves with either of the opposing groups because each sent the money collected by it out of the State. He quoted an unidentified individual as having stated that during a pre- ceding strike at the mill "the employees had nothing to eat but pinto beans" and cautioned his hearers to see to it that they "did not have to eat pinto beans again." He advised them that "anyone could get out of the C. I. 0. by tearing up his membership card." After the delivery of these two addresses, the Federation organizer called upon Baer, demanded that he cease such activity, threatened to file with the Board charges that the respondent was engaging in unfair labor practices within the meaning of the Act, and insisted that the respondent post upon the bulletin board at the mill a copy of Section 7 of the Act. Baer admitted at-the hearing that he was antagonistic in his attitude toward the Federation organizer during the conference , and that he had "overstepped himself a little" in his remarks to his employees. He eventually agreed to post a copy of the Act upon the bulletin board. Several.weeks after this episode, probably the first week in June, Baer again called his employees together. He announced that he had decided to increase their wages and that no employee would be required or permitted thereafter to work more than 8 hours per day. He advised his hearers that these benefits were in no way attributable to the presence of the Federation in the mill. At the hearing Baer explained that these innovations were designed "to give all of the employees a little more encourage- ment and show them that we were trying to cooperate at least, and that we would appreciate a little more cooperation on their part." About the middle of June Baer again called his employees together and addressed them, this time on the subject of the Act. Witnesses testified that he announced that he was "tired of putting up with what he had been in the past" and that "there was going to be a few changes made around here"; that he asserted that he did not care what union his employees joined and that he would "abide by the Act although some of you (the employees) will starve." They also testified that his remarks were made in evident anger and that at their termination he forcefully threw down upon the silk V cabinet beside him a copy of the Act which lie had taken from the bulletin board and which he held in his hand. Baer did not deny the truth of this testimony in regard to either the content or the manner of delivery of his address. We find that Baer, by his four addresses, impressed upon the minds of the employees the respondent's active opposition and hostility to the presence and activity of the Federation within the mill. JAC FEINBERG HOSIERY MILLS, INCORPORATED 675 Baer did not confine himself wholly to public expressions of anti- Federation sentiment during this period. In May Beatrice Watter- son, an employee, asked Baer for a loan. Baer inquired whether she was a member of the Federation, and upon hearing that she was a. member, advised her to attempt to borrow money from that organiza- tion. When Watterson asked if "there was any way to get the money out of the Company," Baer replied that it was a simple matter; all she had to do was to tear up her Federation membership card. That Watterson later received the requested loan without destroying her card does not alter the fact that Baer's remarks further indicated the respondent's hostility to the Federation and served to discourage membership in that organization. At least one incident during this period shows a fear among cer- tain employees that the mill.would close. About June 13 Pearl-Wall, an employee, who was a sister of the only office employee at the mill and who was described as being "very, influential" among the. em- ployees, initiated an angry altercation with Earl Crowe in which she asserted that if Crowe did not stop his union activity,. the re- spondent would close the mill and move it elsewhere. This, incident, which resulted in the dismissal upon the following day of both Crowe and Wall, caused much comment among the employees. On June 16, several days after the delivery of the fourth of Baer's addresses, detailed above, Baer shut down the legging machines and on June 17 posted a notice to the effect that the mill would be closed indefinitely. On June 18, immediately after the mill had closed, the respondent gave impetus to the rumors that the mill would be moved elsewhere by removing by truck its entire surplus stock of stocking legs with the extra silk necessary to foot them. The respondent's action alarmed (lie anti-Federation employees and also the citizens of Rock Hill, many of whom, by reason of their ownership of bonds issued against the mill building and property, had a direct financial interest in the con- tinued operation of the respondent's business at Rock Hill, in addition to the usual interest which residents of communities of this kind have in the maintenance of the "pay roll" of industries located there. Both groups moved at once to persuade the respondent to resume opera- tions. On the following day, Saturday, June 19, the respondent re- ceived from leaders of the anti-Federation group of employees a back-to-work petition containing many signatures of employees, and from the president of the Chamber of Commerce of Rock Hill a letter stating that certain of its members wished to know of ways in which they could help in reopening the mill. Upon receipt of these two communications the respondent immediately decided to reopen the mill on Monday, June 21, and published a notice of its decision in a 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD newspaper. However, on the following day the respondent was per- suaded by a Labor Conciliator from the Department of Labor, whose services had been requested by the Federation, to postpone the resump- tion of the mill operations until certain grievances of the Federation could be presented to and considered by the respondent. Operations were finally resumed on June 23 pursuant to an agreement between the respondent and the Federation by which the respondent granted certain demands made by the Federation regarding the reinstatement of an employee, the wages of learners and other matters. Baer contended at the hearing that the shut-down of the leggers on June 16 was caused by a lag in production in the footing depart- ment and was ordered so that the footers might have a chance to reduce the surplus leg stock. He explained that the shut-down of June 17 was "in order to find some solution to my problem, get the inventory down, and start with a clean slate after that." Baer admitted that the disparity in production between the legging and footing departments arose solely from "labor trouble" incident to the Federation activity within the mill. We are convinced by the respondent's hostility toward the Federa- tion, as evidenced by Baer, by the circumstances surrounding the shut-down of the mill, and by the alacrity with which the respondent agreed to resume operations at the request of avowed opponents of the Federation among the employees and at the request of the local Chamber of Commerce, that the respondent never intended to remove or permanently to discontinue its operations; we believe that it shut its mill in order to intimidate its employees, both directly, through fear of job loss, and indirectly, through pressure from townspeople who believed their financial interest to be at stake, to abandon the Federation. We find that the respondent (1) by Baer's four speeches to the employees and his remarks to Watterson, and (2) by closing its mills, shipping its surplus leg stock from the mill and thereby pretending to discontinue local production, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Domination o l the Rook Hill Union On Saturday, June 19, as we have stated, certain citizens of Rock Hill, through the Chamber of Commerce; inquired of the respondent whether they could do anything to aid the reopening of the mill. Baer testified, regarding the inquiry, "we agreed to this against our better judgment." The only reasonable interpretation of which Baer's tes- timony is susceptible in the light of subsequent events is that the citizens offered their assistance in combatting the Federation, and that the respondent. accepted the offer. On the following day, in any JAC FEINBERG HOSIERY MILLS, INCORPORATED 677 event, L. W. Johnson, a prominent citizen of Rock Hill, spoke to Josephine Steele, a mill employee of his acquaintance, concerning the "C. I. 0." Johnson was opposed to the "C. I. 0.," believed that an "outside" union could not understand the needs of mill employees in Rock Hill, and knew that Steele shared his views. Johnson expressed the opinion to Steele that the anti-Federation group within the mill had as much right to their opinions as had the Federation group and stated that he did not see why the anti-Federation group did not "stand up" for their rights. Steele testified that she did not interpret Johnson's remarks as a suggestion that the anti-Federation group form an organization, but that she nevertheless pondered the problem of the growing strength of the Federation for several days and on Thurs- clay, June 24, questioned Johnson concerning the legal possibility of organizing an independent union among the mill employees. Johnson referred her to J. M. Blackmon, a Rock Hill attorney of their ac- quaintance, whom Steele consulted. Blackmon evinced much interest in the formation of an "inside" union within the mill. He considered the project desirable for both the employees and the town of Rock Hill, and offered to contribute his services to such a project as a "civic enterprise" in the event the proposed organization should not be able to reimburse him. He assumed the role of prime mover and organizer of the new group, and under his active guidance it achieved a mushroom growth. Steele enlisted the aid of Gertrude Chastain, it leader of the anti-Federation group of employees who, during the shut-down, had initiated and circulated the back-to-work petition mentioned above. The organization of the new group went rapidly forward. On Jude 26, 2 days after Steele's first conference with Blackmon, a meeting for mill employees was held in the Chamber of Commerce Hall, a meeting place secured by Blackmon. The meeting was presided over by Blackmon and Chastain. After Chastain had explained that the purpose of the meeting was the formation of a union of hosiery employees, Blackmon stated that any group of employees had the legal right to form a union and presented for the consideration of those present a set of bylaws drafted by himself. The group decided to form a labor organization to be called the United Rock Hill Hosiery Employees Union, and elected temporary officers, including as president, D. R. Hamilton,10 who had expressed vigorous and open opposition to the Federation since its first appear- ance in the mill in 1934; as secretary, Chastain; and as treasurer, Steele. At i meeting held one week later, the proposed bylaws were adopted and the temporary officers were made permanent officers. 10 Hamilton had been the organizer and chairman of the Helping Hand Club, a beneficial organization formed with the aid and approval of the respondent during or immediately following the organizational activity of the Federation at the mill in 1934. 253030-41-vol. 19--44 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Blackmon took an active part in the solicitation of members for the organization. He wrote individual letters to at least two em- ployees on his office stationery requesting interviews with them in order that he might persuade them to join the Rock Hill Union. Various petitions which were circulated by the members of the organ- ization were prepared by him or with his aid, and after circulation were handed to him for his disposition. The testimony of Chastain, as well as other evidence, shows that the primary object of the Rock Hill Union was the termination of the unrest in the mill, incident to the Federation organizational activity, by the elimination of the Federation from the mill. The back-to-work petition, circulated dur- ing the shut-down, was based upon the belief that this "unrest" had caused the shut-down, the fear that the mill would not reopen, and the feeling that it was necessary that the respondent be advised that a large number of employees were satisfied with their working condi- tions. The problem of "labor difficulties" at the mill remained un- solved after the resumption of operations on June 23. That it was to the elimination of this problem that Blackmon and the anti-Fed- eration leaders primarily addressed themselves in the formation, of the Rock Hill Union is shown by the testimony of Chastain that "so far as the management was concerned, we were satisfied, but we were not satisfied with the unrest the C. I. 0. had created over in our plant." After the organization of the Rock Hill Union, Blackmon and a duly elected committee twice demanded of the respondent, and were twice refused, recognition as a bargaining agent for the mill em- ployees. . Although the respondent did not finally refuse . recogni- tion, no attempt to bargain took place after August 11, 1937, and the minutes of the organization, submitted in evidence, show that no meeting was held after August 28, 1937, A consideration of the events preceding the formation of the Rock Hill Union convinces us that the organization arose, not as a result of the free expression of the desires of the employees, but as a result of the fear, created by the respondent in both townspeople and em- ployees before and during the shut-down of the mill, that the respond- ent would remove its business from Rock Hill unless some way could be found to terminate the organizational activity of the Federation among its employees. We have elsewhere held that an employer whose unfair labor practices divert his employees from adherence to one union to the formation of another has interfered with the formation of the latter.' In the instant case, the respondent's unfair 1 Matter of Texas Mining and Smelting Company and International Union of Mine, Mill and Smelter Workers, Local No. 412, 13 N. L. R. B. 1163: see also Matter of Crawford Manafacturing Company and Textile Workers Organizing Committee, 8 N. L. R. B. 1237; Matter of Coldwell Lawnmower Company and International Association of Machinists, Lodge No. 757, afliated with the American Federation of Labor, 1 4 N. L. R. B. 38. JAC FEINBERG HOSIERY MILLS, INCORPORATED 679 labor practices directed against the Federation provided the impetus for the formation of the Rock Hill Union. Upon the entire record, we find that the respondent dominated and interfered with the formation and administration of the Rock Hill Union and contributed support to it; that it thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discharges Earl Crowe was first employed by the respondent for a few months in 1934. He was a skillful knitter and in 1935 reentered the re- spondent's employment at the request of a supervisory employee. Crowe joined the Federation at its first meeting for mill employees held on April 28, 1937, and immediately began the active solicitation of other employees for membership in the organization. There is no evidence that Crowe pursued his union activity during working hours at the mill. There is evidence, however, that his activity, wherever pursued, caused an abrupt change in Baer's attitude toward him which until that time had been friendly. We have related that after Crowe joined the Federation, Baer rebuked him sharply for misrepresenting Baer's attitude concerning Federation organizational activities among the employees. On that occasion Baer accused Crowe of being "a snake." Crowe became a leader of the Federation's organizing drive and personally persuaded 50 or 60 mill employees to join. He served on the grievance committee of the Federation and prior to his discharge in July 1937, twice interviewed Baer in this capacity. It will be recalled that about the middle of June, during a period of intense opposition between the Federation and anti-Federation groups in the mill, Crowe and Pearl Wall, of the anti-Federation group, engaged in a heated altercation in the mill yard after work- ing hours concerning the merits of the Federation and Crowe's part in its activity. The following morning Scott, assistant manager at the mill, discharged both Crowe and Wall. We find that upon this occasion, the respondent dismissed both disputants for purely dis- ciplinary reasons and that in so doing it did not discriminate against Crowe because of his union membership and activity. Crowe was reemployed by the respondent on July 1, after pro- tracted negotations with a Federation representative. During his several weeks of unemployment between his first discharge and his reemployment, he continued unabated his union activities. On June 18, during the shut-down of the plant, he and Richard Holyfield, an employee named in the complaint, led a group of Federation sympathizers, who had gathered in the mill yard, in an attempt to 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dissuade a truck driver from hauling goods away from the mill by informing him that there' was labor trouble at the mill and that the employees had been locked out. Baer called upon the. sheriff, who disbanded the group. Crowe and Holyfield were also leaders of a group of Federation members who attempted to prevent the formation of the Rock Hill Union by creating a disturbance at its meetings and in other ways. As a result of this activity, Blackmon, attorney who aided the for- mation of the Rock Hill Union, caused their arrest on Monday morning, July 12. They were retained in the county jail all day Monday and until Tuesday morning. Upon their return to work, immediately upon their release from jail, Crowe and Holyfield were summarily discharged by the re- spondent. Crowe was handed his final check by Scott, the assistant manager, and informed that the "mill was not a kindergarten." Scott testified that the immediate cause of Crowe's discharge was his arrest by officers of the law, that the respondent was concerned not, with a loss of production due to Crowe's . absence during his incarceration, 12 but with the effect of his arrest upon other mill em- ployees. Scott testified further that his recommendation to Baer that Crowe be discharged and Baer's acceptance of the recommenda- tion were based upon the belief that Crowe was "a disturbing influence in the mill." Except in so far as his union activities might so be characterized, Crowe is not shown to have exercised a disturbing influence in the mill. We do not believe that his arrest, alone, caused the respondent to dispense with his services. We find that the respondent discharged Crowe because of his membership and activity in the Federation. At the time of the hearing Crowe had not found other permanent employment. He desires reinstatement. Richard Holy fiield was employed by the respondent in May 1937. He was a member of the Federation and became, soon after his arrival at the plant, a leader in the active solicitation of members for the organization. He kept a. supply of application cards for membership in the Federation in plain view on the end of his tool box during working hours and distributed them whenever possible until he was ordered by Baer to remove them from mill property. Holyfield was the friend and constant companion of Crowe. He testified that he devoted most of his time outside his working hours to union activity. During the shut-down of the mill, he shared with Crowe the leadership of the group which tried to dissuade a truck driver from removing material from the mill; he accompanied Crowe to the meetings of the Rock Hill Union mentioned above; ' Crowe's machine was not idle during his absence. JAC FEINBERG HOSIERY MILLS, INCORPORATED 681 he was arrested with Crowe on the morning of July 12 for allegedly spying upon a Rock Hill Union meeting, was released from jail when Crowe was released, and returned with him to the mill. He, together with Crowe, was discharged on July 13, 1937, by Scott without explanation. The respondent contends that Holyfield's discharge was due to the fact that his rate of production was below the average attained by other knitters. Holyfield admitted at the hearing that his rate of production was low and ascribed it to the fact that he had inexpe- rienced toppers 1,1 and an old machine. Statistical data, submitted by the respondent, showing the rate of production of various knitters and toppers on several machines show that Holyfield's production on more than one machine during the period between May 29 and July 9 with both experienced and inexperienced toppers was below that obtained by other knitters. We cannot believe, however, that Holyfield's low rate of production was the cause of his discharge on July 13. Although the respond- ent had originally employed him as a spare knitter,'4 he had been regularly assigned to a machine and had been working continuously thereon for a, period of 6 weeks prior to his discharge. The respond- ent had never criticized his work and had not warned him that it was considered unsatisfactory. On the other hand, Holyfield's dis- charge was accomplished at the same time and apparently under the same circumstances as that of Crowe, his close friend and co-leader in the Federation activity among the mill employees. We find that the respondent discharged Holyfield on July 13 because of his mem- bership in and activity on behalf of the Federation. Between the date of his discharge and the date of the hearing, Holyfield had earned approximately $120.30. He desires reinstate- ment. Basil Funk was employed by the respondent in November 1936, as a machine cleaner. He joined the Federation early in May and was openly active in its behalf. He kept application cards for membership in the organization in his pocket in plain view during working hours and persuaded 20 or 25 employees to join the or- ganization. He freely talked to the Federation organizer on the mill property. We are satisfied and we find that the respondent knew of Funk's union activity. Funk began learning to operate a legging machine in his spare time soon after his arrival at the mill and in April 1937 was placed .upon a legging machine as an operator. During April he operated ' The crew of a footing machine, such as that upon which EIolyfield was employed, con- sists of a footer and three toppers. The machine cannot be operated without a full crew. 14A spare knitter works irregularly on various machines when the knitters regularly assigned to those machines are absent. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the machine of a legger who was ill. In May and the early part of June he "split production" 15 on a machine with another operator. During the shut-down of the mill in June, Funk's machine was dis- mantled. When hee returned to work on Juhe 23, he was demoted to the role of learner and assigned to the task of helping knitters throughout the mill. The respondent had agreed with the Fed- eration during the conference preceding the reopening of the mill that it would raise the wages of learners from one dollar per week to eight dollars per week and had anounced that it would be neces- sary to discharge many ]earners in order that its total pay roll might not be increased by this provision of its agreement. On June 26, in accordance with this announcement, it discharged seven learners. Funk was chosen as a member of this group and discharged with them although he was senior to many learners in the mill in point of service and although he had been promoted from the class of learners and had been working as a knitter for several months prior to the shut-down. The Federation contends that the respondent discharged Funk solely because of his union membership and activity, and that his demotion to the class of learner on June 23 was accomplished in order that it might discharge him as a member of a group of learners, to the discharge of which the Federation had agreed, rather than as an individual knitter. The respondent contends that Funk was not considered a knitter at any time during his employment. Scott stated that Funk was given an old machine to operate in April, and, when his production proved to be below the standard required, was placed on a machine as a learner with another operator. This contention is not sup- ported by the record. That he was considered a knitter and not a learner during the period from April until the middle of June is evidenced by the fact that he was given full responsibility for a machine during part of this period and by the fact that during the entire period he was paid on a piece-work basis at the rate accorded knitters. Learners were paid on a. time basis during this period. The respondent has presented no data which would enable us to com- pare Funk's production with others in his class. However, Funk was not warned that his production was so low that it endangered his status as a knitter and there is no evidence that the respondent so considered it prior to the shut-down of the mill. The respondent also maintained that Funk's conduct was unsatisfactory in that he did not stay at his machine. However, since the respondent ad- mitted that no employee had ever been discharged for leaving his machine, we do not believe that his conduct in this respect con- tributed to Funk's demotion and discharge. The operator with whom 1a Each operator was paid for half the production of the machine. J AC FEIN BERG HOSIERY -MILLS, INCORPORATED 683 Funk was "splitting production" prior to the shut-down of the mill was neither demoted nor discharged. Under these circumstances we believe that reasons other than those advanced by the respondent motivated the demotion of Funk to the position of learner and his discharge, and that the respondent demoted Funk to the position of learner in order that it might subsequently discharge him, not as an individual knitter, but as one of a group of seven learners. In the light of all the evidence we find that the true reason under- lying the demotion and discharge of Funk lay in his activity in behalf of the Federation. At the time of the hearing, Funk had not obtained employment. He desires reinstatement. D. W. Gibne?' was employed by the respondent as it spare knitter in May 1937. He joined the Federation sometime in June. He was active in the solicitation of members for the organization and during the shut-down of the mill shared with Crowe and Holyfield the leadership of the group which tried to dissuade a truck driver from removing material from the mill. When Gilmer returned to the mill after the shut-down, he was informed that there was a lack of toppers, due to the fact that certain toppers had not reported for work, and that therefore he could not be assigned to a machine."' Gilmer secured two toppers in the town but the respondent stated that they were not acceptable and refused to employ them. Between June 23 and July 9 Gilmer reported to the mill twice daily in the hope that he would be as- signed to a machine, and upon two occasions during this period was given a clay's employment as substitute for an absent knitter. On July 9 Gilmer, on the advice of Scott, the assistant general manager of the respondent, drew his final pay check and prepared to return to his home. Scott promised that he would notify Gilmer if it became possible to assign him to a machine and Gilmer left his address with Scott. On the evening of July 9 Gilmer accompanied Crowe and Holy- field in their attempt to prevent the formation of the Rock Hill Union. Immediately after this incident he left Rock Hill. He has at all times . since that time been available for reemployment. Although the respondent has known how to reach Gilmer it has not recalled him. Gilmer desires reinstatement. In its answer the respondent stated that it did not discharge Gilmer, and that it would recall him when work for him becomes available. Scott stated at the hearing that the respondent had not recalled Gilmer because of a, lack of toppers. He admitted, how- 16 A footing machine, such as Gilmer was operating prior to tb e shut-down , requires the attention of a crew of a knitter and three toppers. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever, that the respondent had employed new footers between July 9 and the time of the hearing and, that one or two of these footers had not brought their own toppers. Since a footer cannot work without toppers, it is apparent that toppers were available in the plant or were employed by the respondent upon at least one or two occasions during this period. The respondent did not explain why it did not recall Gilmer rather than employ a new footer upon one of these occasions. Under these circumstances we are unable to accept the respondent's contention that lack of toppers prevented it from recalling Gilmer prior to the hearing or to credit its protes- tations of its intentions to employ Gilmer when work becomes available. We find that between July 9, 1937, and the time of the hearing the respondent failed to recall Gilmer to employment because of his membership in and activity on behalf of the Federation. L. J. Stover was employed by the respondent in July 1936 as an electrician and general handy man. He was engaged in the installa- tion of new electrical equipment from November 1936 until its com- pletion immediately prior to his discharge on August 14, 1937. He was told at the time of his discharge that he would be recalled if his services were again required by the respondent. The record shows that since Stover's discharge the electrical work necessary to the maintenance of the machines, and other work also done by him, such as the care of the silk and the boxing of the stock for the purpose of shipping, has been assumed by shift foremen. No employee has been hired to replace Stover. Stover joined the Federation in June 1937 and solicited members for the organization. It does not appear that he was unusually active in union affairs. We find that Stover was discharged because of the termination of the work upon which he was principally en- gaged, and not because of his union membership and activity. Mary Morton was employed by the respondent in June 1933 and at the time of her discharge on August 13, 1937, was an inspector. The evidence shows that her production was low and that her inspec- tions had been carelessly made. The Trial Examiner recommended that the complaint as to Morton be dismissed and the Federation did not except to the recommendation. We find that Mary Morton was discharged on August 13, 1937, because of unsatisfactory work and not because of her union membership and activity, and we shall dismiss the complaint as to her. We find that the respondent, by demoting Basil Funk on June 23, 1937, and discharging him on June 26, 1937; by discharging Earle Crowe, and Richard Holyfield on July 13, 1937; and by failing to recall D. W. Gilmer to employment between July 9, 1937, and the JAC FEINBERG HOSIERY MILLS, INCORPORATED 685 time of the hearing, discriminated in regard to their hire and tenure of employment, discouraged membership in the Federation, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The alleged refusal to bargain collectively In his Intermediate Report, Trial Examiner Bellman - found that. the respondent had not refused to bargain collectively, and recom- mended dismissal of the allegation of the complaint that it had done so. His conclusion was based upon a finding that a majority of the respondent's employees in an appropriate unit were not shown to have designated the Federation as their bargaining agent. We agree with the finding of the Trial Examiner both as to runt 17 and as to majority designation. No exceptions were filed to the findings and recommendation in question. We shall dismiss the complaint in so far as it alleges that the respondent refused to bargain collectively within the meaning of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We And that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the re- spondent. described in' Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and with foreign countries, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act by restoring as nearly as possible the situation that existed prior to the commission of the unfair labor practices. We have found that the respondent discriminatorily discharged Earl Crowe and Richard Holyfield on July 13, 1937, and discrimina- torily demoted Basil Funk to the position of learner on June 23, 1937, and discharged him on June 26, 1937. We shall order the respondent to offer each of said employees im- mediate and full reinstatement to his former position, without loss of his seniority or other rights and privileges and to make him whole for any loss of pay he has suffered by reason of the respond- ent's discrimination against him, by payment to him of a sum equal 17 Our determination as to the appropriate unit in Section VIII, below, corresponds with that of the Trial Examiner. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the amount he would normally have earned as wages from the date of such discrimination to the date of such offer of reinstatement, less his net earnings 18 during said period. The net earnings of Basil Funk shall be computed to include the difference between the compensation received by him as learner dur- ing the period from June 23, 1937, to his discharge on June 26, 1937, and the compensation he would normally have received during that period had he been reinstated on June 23 to the position of knitter held by him on June 17, 1937. We have also found that the respondent discriminatorily failed to recall D. W. Ginner to employment between July 9, 1937, and the time of the hearing. We shall order the respondent to offer Ginner immediate and full reinstatenieut to the position held by him prior to the shut-down of June 17 to 23, 1937, or to a substantially equiva- lent position, without loss of his seniority and other rights and privi- leges and 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 would normally have earned as wages from the date on which the respondent first, after July 9, 1937, employed a footer who did not furnish. his own toppers to the date of such offer of reinstatement, less his net earn- ings during such period. We have found that the respondent has dominated and 'interfered with the formation and administration of the Rock Hill Union. Rec- ognition by the respondent of the Rock Hill Union will render im- possible the free choice by the employees of a representative for collective bargaining. Accordingly, in order to effectuate the policies of the Act, we will order the respondent to refuse to recognize the Rock Hill Union as the representative of any of the respondent's employees for the purposes of collective bargaining. VI. THE QUESTION CONCERNING REPRESENTATION At various times between June and December, 1937, the Federation, claiming that it,represented a majority of the respondent's employees, requested the respondent to negotiate a collective bargaining agree- ment with it. In its answer, the respondent admitted that it refused "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 unlawful dis- charge 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 Sawnliil 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 oti er government or governments which supplied the funds for said work-relief projects. JAC FEINBERG HOSIERY MILLS, 11 CORPORATED 687 to bargain collectively with the Federation as the exclusive collective bargaining representative of its employees. We find that a question has arisen concerning the representation of employees of the respondent. VII. THE EFFECT OF THE QUESTION' CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent described in Section I above, has a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VIII. THE APPROPRIATE UNIT At the hearing the Federation contended that the production and maintenance employees of the respondent, exclusive of supervisory and office employees, constitute an appropriate bargaining unit. In- asmuch as we have found that the Rock Hill Union is employer- dominated, we shall not consider its contentions as to the appropriate unit. The respondent expressed the opinion that the maintenance employees consisting of two negro workers and a night watchman should not be included in the unit, but stated that it would not insist upon their exclusion. There is no evidence in the record as to. the specific duties of the maintenance employees, and the respondent pre- sented no reason for their exclusion. We shall include them in the unit. We find that the production and maintenance employees of the re- spondent, excluding office and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to the employees of the respondent the full benefit of their right to self-organization and collective bargaining and otlie-r- wise effectuate the policies of the Act. IX. THE DETERMINATION OF REPRESENTATIVES At the hearing the Federation claimed to represent a majority of the respondent's employees in the appropriate unit and introduced evi- dence in support of its claim. The nature and extent of the evidence is such, however, that an election by secret ballot is necessary to resolve the question concerning representation which has arisen. In the elec- tion to be held, the name of the Rock Hill Union, which we have found to be employer dominated, will be omitted from the ballot. Since the respondent has, by engaging in various unfair labor practices, inter- fered with the exercise by its employees of the right guaranteed them 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Act, we shall not now set the date for the election. We shall hold the election, however, upon receipt of information from the Re- gional Director that the circumstances permit a free choice of repre- sentatives unaffected by the respondent's unlawful acts. We shall, at the time we specify the date on which the election is to be held, also specify the date on the basis of which eligibility to vote in the election shall be determined. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. American Federation of Hosiery Workers, North Carolina Dis- trict, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. United Rock Hill Hosiery Employees Union is a labor organiza- tion, within the meaning of Section 2 (5) of.the Act. 3. By dominating and interfering with the formation and admin- istration of United Rock Hill Employees Union and contributing support thereto, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 4. By discriminating in regard to the hire and tenure of employ- ment of Earl Crowe, Richard Holyfield, Basil Funk, and D. W. Gil- mer, thereby discouraging membership in American Federation of Hosiery Workers, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 7. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. 8. The respondent has not discriminated with respect to the hire and tenure of employment of S. L. Stover or Mary Morton, within the meaning of Section 8 (3) of the Act. 9. A question affecting commerce has arisen concerning the repre- sentation of employees of Jac Feinberg Hosiery Mills, Inc., Rock Hill, South Carolina, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 10. The production and maintenance employees of the respondent, excluding office and supervisory employees, constitute a unit appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. JAC FEINBERG HOSIERY MILLS, INCORPORATED ORDER 689 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, Jac Feinberg Hosiery Mills , Inc., (Rock Hill, South Carolina) its officers, agents , successors, and assigns shall : 1. Cease and desist from : (a) In any manner dominating or interfering with the administra- tion of United Rock Hill Hosiery Employees Union or the formation or administration of any other labor organization of its employees, and from contributing support to United Rock Hill Hosiery Employees Union, or any other labor organization of its employees; (b) Discouraging membership in American Federation of Hosiery Workers or any other labor organization of its employees by discrimi- nating in regard to hire or tenure of employment or any term or condi- tion of employment; (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 and other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action , which the Board finds will effectuate the policies of the Act : (a) Refuse to recognize United Rock Hill Hosiery Employees Union as a representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay , wages, hours of employment, and other conditions of employment ; (b) Offer to Earl Crowe and Richard Holyfield, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges; (c) Offer to Basil Funk and D. W. Gilmer immediate and full reinstatement to the positions held by them, respectively, on June 17, 1937, or to substantially equivalent positions , without prejudice to their seniority or other rights and privileges; (d) Make whole Earl Crowe, Richard Holyfield , and D . W. Gilmer, and each of them, for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him a sum of money equal to that which he would normally have earned as wages from the date of such discrimination to the date of the respond- ent's . offer of reinstatement pursuant to this Order, less his net earn- ings.during said period; deducting , however, from the amount other- wise . due each of soid .employees, monies . i'eceived by him during,.saicl, 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so.ordered 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; - (e) Make whole Basil Funk for any loss of pay he may have suf- fered by reason of his demotion to the grade of learner and his subse- quent discharge, by the payment to him of a sum of money equal to that which he would normally have earned as wages as a knitter from the date of his demotion to the date of the offer of reinstatement pur- suant to this Order, less his net earnings during said period, deduct- ing, however, from the amount otherwise due him, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so ordered 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; (f) 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 paragraphs 1 (a) and (b) and will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this Order, and that the respondent's employees are free to become or remain members of American Federation of Hosiery Work- ers, North Carolina District, and that the respondent will not dis- criminate against any employee because of membership or activity in that organization; (g) Notify the Regional Director for the Tenth 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 complaint, as amended, 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 (5) of the National Labor Relations Act, and in so far as it alleges that the respondent has discriminated in regard to the hire and tenure of employment of Mary Morton and S. L. Stover, within the meaning of Section 8 (3) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby JAC FEINBERG HOSIERY MILLS, INCORPORATED 691 DIRECTED that, as part of the investigation authorized by the Board to ascertain the representatives for the purposes of collective bar- gaining with Jac Feinberg Hosiery Mills, Inc., Rock Hill, South Carolina, an election by secret ballot shall be conducted at such time as, the Board shall hereafter direct, under the direction and super- vision of the Regional Director for the Tenth Region, acting in this matter as agent of the National Labor Relations Board and subject to Article III, Section 9,-of said Rules and Regulations, among the production and maintenance employees of Jac Feinberg Hosiery Mills, Inc., Rock Hill, South Carolina, employed by said respondent during a pay-roll period which the Board shall in the future specify, including those employees who did not work during the pay-roll period chosen, because they were ill or on vacation, but excluding office and super- visory employees and any employees who have after the eligibility date quit or been discharged for cause, to determine whether or not they desire to be represented by American Federation of Hosiery Workers, North Carolina District, affiliated with the Congress of Industrial: Organizations, for the purposes of collectiVe'bargaining. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision. Order, and Direction of Election.