Empire Worsted Mills, Inc.

In the Matter of EMPIRE WORSTED MILLS, INC. and TEXTILE WORKERS UNION OF AMERICA Case No. C-826-Decided April 29, 1940 Woolen Textile Industry-Interference, Restraint, and Coercion: statements to employees expressing opposition to Union, attempting to discredit Union and union leaders, and discouraging membership in Union ; surveillance of union meetings ; refusal ever to recognize Union as bargaining agent of employees, as contrasted with execution of bargaining contract with competing union ; attempts to create false impression that contract provided for closed shop- Discrtmination: lay-offs, discharges, and refusal to reinstate, because of union membership and activity, charges of, not sustained as to four persons-Rein- statement Ordered: employees discriminatorily. laid off and retused'+reinstate- ment-Bade Pay: awarded. Mr. Peter J. Crotty, for the Board. Mr. J. Russell Rogerson and llir. Sidney T. Hewes, of Jamestown, N. Y., for the respondent. Mr. Alfred Udoff, of New York City, for the T. W. U. A. Mr. David W. Crawford, of Erie, Pa., for the A. F. of L. Miss Edna Loeb, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by Textile Workers Organizing Commit- tee, herein called the T. W. U. A.,1 the National Labor Relations Board, herein called the Board, by the Regional Director for the Third Region (Buffalo . New York), issued its complaint, dated March 1, 1938, against Empire Worsted Mills, Incorporated2 James- 1 On June 28, 1939, Textile Workers Organizing Committee filed with the National Labor Relations Board an affidavit to the effect that in May 1939 its name had been changed to "Textile Workers Union of America," and filed an accompanying motion that its designa- tion be changed accordingly in the instant case. On August 31, 1939, after notice duly served upon all parties to the proceeding , the Board issued its Oider granting the motion and changing the designation as moved For purposes of this decision , Textile Workers Organizing Committee and Textile Workers Union of America will be referred to as the T. W U. A. 2 This is the correct designation of the respondent. 2.3 N. L. R. B., No. 27. 300 EMPIRE WORSTED MILLS, INC. 301 town, New York, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1), (3), anti. (4) and Section 2 (6) and (7) of the National Labor- Relations Act, 49 Stat. 419, herein called the Act. Copies of the complaint and accompanying notice of hearing were duly served upon the respond- ent and upon the T. W. U. A. With respect to the unfair labor practices, the complaint alleged in substance (1) that at various times between August 1937 and Feb- ruary 1938 the respondent ctiscouraged membership in the T. W. U. A. by discrimination in regard to the hire and tenure of employment of 32 named employees, herein called the charging employees; 3 and (2) that by the above acts and by other acts, the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. On March 14, 1938. the respondent filed its answer in which it alleged that the Board had no jurisdiction over it, objected to the sufficiency of the complaint,4 and denied that it had committed the unfair labor practices alleged in the complaint. Pursuant to notice, a hearing was held at Jamestown, New York, on March 14, 15, 16, 17, 18, 19, and 21, 1938, before Martin Raphael, the Trial Examiner duly designated by the Board. The Board, the respondent, and the T. W. U. A. were represented by counsel and participated in the hearing. The American Federation of Labor, herein called the A. F. of L.. appeared by counsel at the hearing but did not otherwise participate therein. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the-issues was afforded all parties. During the course of the hearing the T. W. U. A. moved to amend its charges in certain specified respects. The Trial Examiner granted 1 hese motions and allowed the respondent 5 days in which to prepare to meet any facts arising under the charges as so amended. There- after, during the course of the hearing, the T. W. U. A. moved to withdraw the above amendments so that the charges would stand as they were prior thereto. This motion was granted by the Trial Examiner. I James Provenzano , Joseph Bullardo, Wilhelmina Andeison , Mae Danie, Arthur Twee dale, Herbert Ramsey, Florence Ramsey, Thelma Kahle, Genevieve Carlson, Alice Nelson, Ida Mayo, Mary Garfield, Elsie Ostrom , Eve [Ostrom ], Osterman , Alice Johnson, Signe Erickson, Hazel Wise, Flora Wise, Victoria Thilander, Helen Carlstrom, Virginia Picld- seimer, Thyra Olafson, Alice Al. Johnson, Gunhild Forsberg, Laura Heglund, Goldie Chris- tensen, Esther Herrick, Josephine Barbagiovanni . Hilda Russell Frederickson , Lester Mayo, Helen Bonfiglio , and Frances Farnella 4 The respondent objected to the sufficiency of the complaint on the ground , inter also, that certain allegations of the complaint were not supported by the charges This objec- tion requires no comment in view of the fact that all the allegations thus complained of have been or are being dismissed herein 302 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD During the course and at the close of the hearing the respondent made motions to dismiss the entire complaint on jurisdictional and procedural grounds.' These motions were denied by the Trial Exam- iner. At the close of the Board's case, the respondent moved gen- erally to have stricken from the record all testimony regarding con- versations between employee witnesses and other employees at the mill, and further moved to have stricken specific portions of the said testimony, on the ground that such testimony was not binding upon the respondent. The Trial Examiner denied the general motion, reserved his ruling upon the specific motions, and denied them in his Intermediate Report, issued thereafter. The respondent also made separate motions to dismiss the complaint with regard to each of the charging employees, on the ground that the evidence did not support the allegations of discrimination, and counsel for the Board con- curred in the motions with respect to 10 such employees who had failed to appear as witnesses at the hearing.6 The T. W. U. A. made no objection, and the Trial Examiner granted the 10 motions. He denied the motions with respect to the other 22 charging employees. The respondent further moved to dismiss the complaint as to all and various ones of the charging employees on the ground that the evi- dence showed that they were not affiliated with the T. W. U. A. These motions were denied by the Trial Examiner. At the close of the hearing, counsel for the Board moved that the complaint be conformed with the proof, which motion the Trial Examiner granted. At that time, the respondent renewed its separate motions to dismiss the allegations of the complaint regarding 21 of thcc 22 charging employees not already dismissed from the complaint,? on two grounds, (1) that the evidence did not support such allega- tions, and (2) that these charging employees violated the existing contract executed December 7, 1937, between the respondent and Fed- eral Labor Union No. 21345 of the A. F. of L., herein called the Federal Union, by failing to employ the grievance procedure set forth {herein, and therefore had no right to participate in a proceeding under the Act. The Trial Examiner reserved his ruling on these motions. In his Intermediate Report he granted the motions made upon the first ground with regard to 3 of the remaining 22 charging employees 8 and denied the rest of the motions. With respect to the second ground upon which the respondent based these motions to dismiss, it should be noted that the above-mentioned contract pro- 5 See footnote 4, 8up7 a 6 James Provenzano , Arthur Tweedale, Genevieve Carlson , Alice Nelson , Mary Garfield, Eve [Ostrom ] Osterman , Hazel Wise , Flora Wise, Laura Heglund, and Goldie Christensen. 7 The respondent did not renew its motion to dismiss the allegations regarding Thelma Kahle, one of these charging employees . This may have been inadvertent. 8 Joseph Bullardo , Mae Dame, and Helen Carlstrom. EMPIRE WORSTED MILLS, 'INC. 303 -vides, among other things, that the employees "agree as a condition of employment to have the [Federal Union] as exclusive bargaining agent," and that the employees "may" file grievances through the Federal Union. We need not stop to construe these provisions of the contract in connection with the respondent's motions to dismiss, for the contract, even if intended to preclude an initial resort to the Board, cannot have this effect in view of the express provision of the Act." The Board has reviewed these rulings and other rulings made by the Trial Examiner at the hearing on motions and on objections to the admission of evidence, and finds. that no prejudicial errors were committed.1° The rulings are hereby affirmed. On August 8, 1938, the Trial Examiner filed his Intermediate Report in which he found 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 Act, and recommended that the respondent cease and desist there- from and reinstate 19 charging employees 11 with back pay. The Trial Examiner found that the respondent did not discriminate against three charging employees 1' and recommended that the alle- gations of the complaint with respect to them be dismissed. There- after the respondent and the T. W. U. A. filed exceptions to the Intermediate Report. On September 21, 1938, the T. W. U. A. filed a formal request, allegedly based upon evidence in the record and additional evidence available to the T. W. U. A., that the T. W. U. A. be permitted to amend its charges and that the Board amend its complaint to include allegations that the respondent encouraged membership in the Federal Union, and take other necessary and appropriate action pur- suant thereto. On April 7, 1939, the T. W. U. A. withdrew the said request. Pursuant to request of the respondent, a hearing was held before the Board on May 18, 1939, at Washington, D. C., for the purpose 9 Section 10 (a) of the Act states that the Board's power to prevent persons from en- ,gaging in unfair labor practices is exclusive and is not ". affected by any other means of adjustment or prevention that has been or may be established by agreement , code, law, or otherwise " See Matter of Kelley's Creek Colliery Co and International Union, Pio- gressive Mine Workers of America, 17 N L. R. B. 500 '° The respondent made a motion for adjournment of the hearing until the return of Clyde Carnahan , president of the respondent , from his vacation, in order that he might be permitted to testify in rebuttal regarding alleged anti-union statements made to charging employees This motion was denied by the Trial Examiner We shall not in this Decision allude further to Carnahan 's alleged statements , and the Trial Examiner's ruling cannot, therefore, be considered prejudicial. n Herbeit Ramsey , Florence Ramsey, Thelma Kahle, Ida Mayo, Virginia Pickleseimer, Victoria Thelander , Elsie Ostrom, Signe Erickson , Alice W. Johnson, Alice M. Johnson, Gunhild Forsberg , Thyra Olafson , Esther Herrick, Frances ' Farnella, Helen Bonfiglio, Hilda Frederickson , Josephine Barbagiovanni , Wilhelmina Anderson , and Lester Mayo 12 Joseph Bullardo , Mae Dame, and Helen Caristrom 304 DECISIONS OF NATIONAL LABOR ;RELATIONS BOARD of oral argument. The T. W. U. A. appeared by counsel and par- ticipated in the oral argument . The respondent did not appear but in lieu thereof filed a brief in support of its exceptions. The Board has considered the exceptions and brief of the respond- ent and the exceptions of the T. W. U. A. and, save as the exceptions 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 1. THE BUSINESS OF THE RESPONDENT Empire Worsted Mills, Incorporated, is a New York corporation engaged in the manufacture and sale of worsted cloth at its mill located in Jamestown, New York. In its manufacturing operations the respondent normally employs about 489 employees and uses ap- proximately 40,000 pounds of wool a week, at least 95 per cent of which is shipped to its mill from points outside the State of New York; approximately $7,000 worth of dyes every 6 months, approxi- mately 60 per cent of which are shipped from outside the State of New York; and less than 500 pounds of rayon every 6 months, valued at approximately $2 a pound, all of which comes from States other than the State of New York. During the past few years the respondent has sold all its manu- factured products to Rittenberg Brothers, a firm doing business in New York City under the trade name of Stonkirk Worsted Company. From August 1, 1936, to July 31, 1937, the approximate value of this merchandise was $1,500,000.13 Since July 1937, the volume and sell- ing price of the products manufactured have decreased. Approxi- mately 70 per cent of the respondent's manufactured- products are shipped from Jamestown to New York City by way of the Erie Railroad, and of these products, approximately 331/3 per cent are reshipped by Rittenberg Brothers from New York City to points outside the State of New York.' Approximately 25 per cent of the respondent's products are shipped from Jamestown to places outside the State of New York, and the remaining 5 per cent are shipped to other places within the State of New York.15 The respondent also sells byproducts or wastes, which average between $50,000 and $60,000 in value during a period of 6 months. Approximately 90 per cent of these wastes are shipped to purchasers outside the State of New York. 13 The Trial Examiner made this finding in his Intermediate Report, and the respondent has taken no exception to it. 14 See footnote 13, supra 11 See footnote 13, supra. EMPIRE WORSTED MILLS, INC. II. THE ORGANIZATION INVOLVED 305 Textile Workers Union of America, formerly known as Textile Workers Organizing Committee, is a labor organization affiliated with the Committee for Industrial Organization .1° It admits to membership production and maintenance employees of the respond- ent, exclusive of supervisory employees and office workers. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, ,and coercion The T. W. U. A. began to organize among employees of the re- spondent in April 1937. By June the T. W. U. A. began to hold regular meetings, claimed to represent a majority of the employees, and sought to bargain with the respondent. In June or July the Empire Worsted Mills Shop Union, herein called the Shop Union, was formed among the respondent's employees.'' On October 30 the Shop Union members voted to affiliate with the A. F. of L., and upon application the A. F. of L. chartered the Shop Union as the Federal Union on or about November 6. We are convinced from the record that the respondent engaged in interference, restraint, and coercion, in an effort to thwart the T. W. U. A. Thus, early in June the T. W. U. A. instituted negotiations with the respondent in an attempt to secure recognition as collective bar- gaining agent. At the second bargaining conference between the parties, the respondent was represented by J. Russell Rogerson, a member of its executive committee and its counsel in this proceeding, Hjalmar Swanson, its vice president and general manager, Wright ii Now the Congress of Industrial Organizations 17 Although our decision and order in this case are based solely upon the facts proved in this record , we may note in passing that in Matter of hmpire Worsted Mills, Inc. and Textile Workers Organizing Committee of the Committee for Industrial Organization, 6 N L R. B 513, decided April 8, 1938 , we found the Shop Union company dominated, within the meaning of Section 8 ( 2) of the Act We may note also that in July 1937 the Shop Union submitted to the New York Board of Standards and Appeals a proposed char- ter of incorporation In October 1937 that Board disapproved the proposed charter The Shop Union applied to the New York Supreme Court for an order to review the action of that Board , and on December 2, 1937, the Court issued its decision denying the said appli- cation, Matter of Campbell v. Picard, 165 N Y . Misc Rep 148 , 300 N Y Supp 515 In this decision , Justice Schenck stated : The Board [ of Standards and Appeals ] held that these was evidence to indi- cate that the proposed shop union was approved by the employer and that its purpose ,was to prevent any national organization from soliciting membeiship of the employees of the Empire Worsted Mills , thus defeating the pm poses of the National Labor Rela- tions Act The Board [ of Standards and Appeals ] also held that independent unions whose membership is confined exclusively to the employees of a single employer, if not actually dominated in infancy by the employer , tend to eventually become controlled by the employer ' There was evidence before the Board [of Standards and Appeals] which would justify the inference that the employci was exercising coercion in the formation of the company union 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Broadhead, its treasurer, and James Lee, weaving superintendent. The T. W. U. A. submitted a proposed bargaining agreement to this group. Rogerson read the provisions of the agreement and then stated in substance that "as long as he was a party or connected with the Empire Worsted, he would never recognize the C. I. 0. as collective bargaining agents of the help." None of the respond- ent's other representatives made any statement at that time to indi- cate that they did not share Rogerson's sentiments with respect to the T. W. U. A. This declaration in opposition to the T. W. U. A. was clearly coercive.18 Its coercive effect was intensified by the respondent's contrasting treatment of the Federal Union. On December 7 the respondent and the Federal Union entered into a contract which provided that all employees covered thereby 19 "agree as a condition of employment" to have the Federal Union as their "exclusive Bar- gaining Agent." The contract was for an indefinite period, ter- minable upon 30 days' notice by either party. Moreover, although this agreement does not provide for a closed shop, the respondent fostered the erroneous impression that it did so provide. Thus, Frances Farnella, one of the charging employees, told Harry Hind,20 her foreman, that Norman Campbell, former president of the Shop Union and then president of the Federal Union, was boasting that Farnella had been laud off because of her failure to join the Federal Union. She asked Hind whether the organiza- tion had a closed-shop contract, and he replied, "Sure . . . They most certainly have." She inquired whether in that case it was not the duty of the respondent to notify the employees and give them a designated period of time within which to join the Federal Union. Hind rejoined that a notice had been posted for some time. This notice, posted December 7, the date of the contract's execution, stated that the respondent recognized the Federal Union as sole collective bargaining agency for the employees. Farnella then appealed the matter of her lay-off to Hind's superior, George W. Greenwood'21 superintendent of the spinning, combing, and drawing department of the plant. She asked him whether the Fedreal Union had a closed-shop agreement, and his answer was, - "Yes, sure. You are out now. As far as you are concerned, you are out, the factory is closed for you ..." is Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N L R B 219, enf'd as mod , Republic Steel Corporation, et al., v. N. L. R. B., et at,, 107 F. (2d) 472 (C. C A. 3), cert. den. 309 U. S. 684. 19 " . all employees . . . except office workers and those in executive positions with final authority to hire or discharge." 29 Also designated Hines in the record. 21 Also designated John W. Greenwood In the record. EMPIRE WORSTED MILLS, INC. 307 The respondent's efforts to mislead an employee regarding the scope of the bargaining contract were clearly designed to deter further affiliation with the T. W. U. A. The record discloses further that the respondent maintained sur- veillance over T. W. U. A. meetings. Farnella testified that early in' the T. W. U. A.'s organizational campaign, its meetings were held at a place known as the Labor Hall; that Superintendent Greenwood kept watch upon three of these meetings, and occasionally also Harry Hind, her foreman. She testified further that on one occasion when she entered the hall for a meeting, she saw them posted on opposite corners of an intersection a short distance from the hall; that they were still there when she came out 10 minutes later to do some shop- ping and when she returned to the hall a half hour later; and that after the meeting she met Greenwood a short distance from the hall, apparently watching all persons leaving the meeting. Josephine Barbagiovannl, another charging employee, stated that she,, too, saw Hind outside the meeting place in the summer of 1937, and that he passed the door as the meeting was adjourning and the employees were leaving the hall. Greenwood did not controvert or explain Farnella's testimony re- garding his conduct. Hind denied that he had known of T. W. U. A. meetings or where they were held, and denied that he had attended or spied upon them. In view of the publicity attendant upon the meetings, we give little credence to Hind's professed ignorance re- garding them. The meetings were announced openly by notices posted on clocks and bulletin boards at the plant, and both Greenwood and Superintendent Lee admitted that these announcements did not escape their attention. Moreover, Farnella testified that she observed Hind reading a printed leaflet which related to one of the meetings. We do not credit Hind's denial and we find that both he and Greenwood posted themselves near the T. W. U. A. meeting hall for the purpose of noting the identity of employees who attended T. W. U. A. meetings. Wilhelmina Anderson, another of the charging employees, testi- fied that Superintendent Lee subjected to scrutiny those in attendance at a T. W. U. A. meeting held in a place known as the Nordic Temple about the last of July 1937. Lee testified generally that he did not interfere with or pay any attention to union activity in the plant but did not deny this testimony of Anderson. Furthermore, Farnella testified that she observed Joseph Chapman, another of the respond- ent's foremen, reading the notice of a meeting, and, on the occasion of a T. W. U. A. meeting around the middle of December 1937, saw him pass the meeting hall and park his car a short distance away on the opposite side of the street, facing the hall. Chapman denied that he had ever engaged in such espionage, but we do not find his denial 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worthy of credence when viewed against the background of the other espionage and the respondent's demonstrated hostility to the T. W. U. A. Accordingly , we find that Lee and Chapman participated in the surveillance of T. W. U. A. meetings in the respondent's behalf. Fred Ingham, an assistant foreman of the respondent , engaged in like conduct in the summer of 1937 and in December 1937. Green- wood testified that assistant foremen are "second men" who take charge of each section and that they do not "generally " discharge employees without their superior's approval. They are empowered to report faulty work and to recommend that disciplinary action be taken. In our opinion , Ingham's espionage activities , patterned as they were after those of officials superior to him in rank , resulted from the respondent's hostility to the T. W. U. A. We find that in spying upon T. W. U. A . meetings he acted in the respondent's behalf. Finally, the respondent engaged in other coercive conduct. Thus, in the summer of 1937, during the organizational campaign of the T. W. U. A. and the Shop Union , Ella Moeller, a forelady of the re- spondent, during working hours asked Alice W. Johnson, T. W. U. A. executive committeewoman and a charging employee, to sign a Shop Union slip, telling her, "Don 't read it, dust sign it . . [the slips] have got to be down in the office before quitting time." Julia Anderson, assistant forelady under Moeller , handled Shop Union cards in the plant during working hours, explained to Alice W. Johnson that these cards were favored by the respondent, and in- structed Alice M. Johnson , another charging employee , to join the Shop Union. The latter obeyed this instruction. During the same period, William Beck, a foreman, called three employees from their, work in the weaving department , one of whom was Herbert Ramsey, T. W. U. A. president and a charging employee, and asked them if they were interested in the Shop Union . This action was sanctioned by Superintendent Lee of the weaving department . Beck also asked Victoria Thelander, another T. W. U. A. executive committeewoman and charging employee, if she wanted to give tip the T. W. U. A. In November 1937, when the Federal Union was first chartered, Campbell, Shop Union president and later president of the Federal Union, openly displayed the charter among the employees in the plant. At that time, Beck identified himself with the Federal Union by saying to Herbert Ramsey, "Well, Herb, I suppose you are with us now, aren't you ?" In December 1937, General Manager Swan- son asked Virginia Pickleseimer, a charging employee who had just been laid off, to make application for membership in the Federal Union. 22 In January 193S Superintendent Lee asked Lester Mayo, 22 4 conflict in testimony regarding this incident is resolved in subsection R, below EMPIRE WORSTED MILLS, INC. 309 T. W. U. A. executive committeeman and acharging employee, why he was opposed to the Federal Union; and suggested that Mayo join the Federal Union for the dual purpose of promoting peace among the employees and of securing the reinstatement of Mayo's wife, Ida Mayo, a charging employee who had been laid off in December 1937.23 In February 1938 Superintendent Greenwood, when con- sulted by Farnella regarding her lay-off, told Farnella that she had "double-crossed" the respondent when she "stuck by" the T. W. U. A., and that he had to get rid of her because she kept so may employees from joining the Federal Union ; and made derogatory remarks about John L. Lewis, president of the C. I. O. We find that by the afore-mentioned acts, including espionage; its statement, after the presentation by the T. W. U. A. of a proposed agreement, that it would never recognize the C. I. O. as collective bargaining agent of the employees, as contrasted with its recognition of the Federal Union; its effort to mislead an employee into thinking that the Federal Union contract provided for a closed shop; and other statements and conduct hostile to the T. W. U. A., the respondent has interfered with, restrained, and coerced its employees in the exercise of the right to self-organization, to form, join, or assist labor organi- zations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining, as guaranteed in Section 7 of the Act. B. Descu im-ination The complaint alleges that at various times between August 1937 and February 1938 the respondent discouraged membership in the T. W. U. A. by discrimination in regard to the hire and tenure of employment of 32 charging employees. At the hearing the complaint was dismissed as to 10 of these employees with consent of counsel for the Board. ' Of the 22 remaining cases, the Trial Examiner found that 19 had merit, and the respondent takes exception thereto. The Trial Examiner found the cases of three charging employees to be without merit, and the T. W. U. A. takes exception as to two of them. As to the third case, that of Joseph Bullardo, we have considered the evidence and find that the respondent has not discriminated against Bullardo in regard to the hire and tenure of his employment. Since exception has not been taken in Bullardo's case, we shall not discuss it in further detail and shall dismiss the allegations of the complaint with respect to it. We turn now to the 21 cases regarding which exceptions have been taken. With respect to 19. of these 21 cases, the respondent interposed a common defense, namely, that a decline in business necessitated the 23 See footnote 22, supra. 283034-41-von 23-21 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lay-off of the charging employees involved. In subsection 1, below, we shall first discuss this defense and the evidence common to the 19. We shall then discuss the 19 cases, individually or in groups, in chrono- logical order, and make our concluding findings regarding them. With respect to the two remaining cases, the respondent's defense was that the employees were discharged for cause. These cases we shall discuss in chronological order in subsection 2, below. 1. The alleged business lay-offs and failure to reinstate a. General The respondent attributes the lay-offs to the decreased volume of its business and maintains that between June 1937 and March 1938 it was forced to curtail its force sharply in the interest both of economy and efficiency. It asserts that its productive peak was reached during the second quarter of 1937, when it was manufacturing an average of 349 pieces of finished material a week, and that by the last quarter of the year the average number of pieces manufactured had dropped to 146. It claims, moreover, that productive efficiency, calculated by dividing the number of yards of cloth finished by the number of man- hours consumed in producing it, was 25 per cent lower in the last quarter than in the second quarter. Some doubt is cast upon the validity of the respondent's defense by the fact, which we gather from the entire record, that the re- spondent did not, in the interest of economy, lay off regular em- ployees from all operations of the plant but only from some of them. The respondent admitted that it had laid off no permanent employees from the combing room and, further, that additional employees have since been added to its combing, carding, and wool-washing staff. Moreover, the respondent introduced no evidence that there were lay-offs among several types of regular employees not falling within the scope of the complaint, and, as we shall point out below, refused to produce employment records and personnel information required by subpoenas daces tecum duly served upon Swanson, its vice presi- dent and general manager. Since the respondent's process of man- ufacture is an integrated one, and the several sections of the plant are interdependent, such evidence of selective lay-offs,does not con- tribute to the credibility of the respondent's claim that a failing market compelled it to decrease its force. Several of the charging employees testified, moreover, that production, although slack, in- creased just prior to their lay-offs. During prior periods of depression it had been the respondent's practice not to lay off employees but to distribute the work among them, giving each employee a reduced amount of work each week. EMPIRE WORSTED MILLS, INC. 311 This plan of sharing the work had apparently operated satisfac- torily in the past and was substantially adhered to by the respondent during a considerable part of the 1937 depression. The respondent's alleged reasons for not permitting charging employees to continue to share the work in and after December 1937, were that this was a .particularly severe depression, that since July 1937 the respondent had been losing between $1,500 and $2,000 weekly, and that it was unduly expensive to distribute the small amount of available work among the large number of employees. The respondent claims that it continued to operate with substantially unreduced staff for a time in order to provide employment, but could do so no longer when it became necessary to curtail all possible expenses to make money enough to cover the pay rolls. No records were offered to prove that such, losses were actually suffered. In view of the fact that the respondent's financial condition had been precarious for several years, it seems improbable that during such a depression the re- spondent would have carried unnecessary labor costs for a period of several months. The evidence discloses that the respondent had reliable sources of information regarding T. W. U. A. membership and activities among its employees. No secret was made in the plant of the identity of T. W. U. A. officers or committee members, and the names of various ones of them were set out in notices of meetings posted and dis- tributed at the plant, and in news stories regarding T. W. U. A ac- tivities carried by local newspapers. At least 8 of the 19 charging employees here under consideration displayed their union buttons or badges while at work. Swanson and Superintendents Lee and Green- wood, the respondent's chief supervisory officials, and Gust Olson, one of its foremen, testified that they observed some of these ac- tivities, and Greenwood named as leaders of the T. W. U. A. its president and treasurer, both of whom are charging employees.24 Moreover, as we have found above, the respondent, through its supervisory employees, engaged in espionage against the T. W. U. A. Employers who engage in espionage ordinarily do not do so without purpose and do not reject the knowledge secured thereby.25 24 Iierbei t Ramsey and Frances Farnella 25 See Montgomery Ward d Co v. N L. R B., 107 F. (2d) 555 (C C. A 7), enf'g in part, hfatter,of Montgomei y Ward d Company and Reuben Litzenberger, et al , 9 N L R B 538 The Federal Union, through Campbell, its president , and other officers , also maintained surveillance over several T. W. U. A. meetings In view of the Federal Union 's rivalry with the T W U A and its contract with the respondent , it is probable that knowledge obtained through such surveillance was communicated to the respondent This probability is increased by the fact that one of them , Leonard Wilkinson , Federal Union seargeant-at- arms, is a brother -in-law of William Beck, a foreman of the respondent , whose antagonism toward the T. W. U. A. Is Indicated herein. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record shows that the respondent laid off all the officers and executive committee members of the T. W. U. A. except two,28. but laid off none of the officers or committee members of the Federal Union, with which the respondent had a contract. The alleged busi- ness lay-offs included at least three T. W. U. A. officers, three execu- tive committee members, and three entertainment committee members, all of whom are among the charging employees being treated here.27 These facts lead us to believe that, with ample knowledge at its disposal, the respondent sought deliberately to paralyze the T. W. U. A. by eliminating from the plant its leaders and most active members. Moreover, Swanson testified that in his opinion the respondent's contract with the Federal Union provided for a closed shop, and that the Federal Union, pursuant thereto, "should have charge of who we [the respondent] hire and fire . . ." Swanson's construction of the contract also tends to show that the respondent considered union membership and activity in selecting persons for lay-off. Between June 1937 and March 1938 the respondent dropped 191 em- ployees from its pay roll. It contends that it was only natural that some T. W. U. A. members should have been included in this number, particularly since the T. W. U. A. had earlier claimed to represent a large group of the employees. We find this contention to be with- out merit in view of the following evidence. Swanson testified that between June and December 1937 the respondent had approximately 180 employees classified as "irregular" or extra employees; that these employees were laid off, almost without exception; and that he thouglit that all the charging employees were steady employees, not classified as "irregular." 211 Farnella, T. W. U. A. treasurer, testified likewise that a, large number of night-shift or extra workers were laid off and that, according to her knowledge, this number did not include T. W. U. A. members named in the complaint. She explained that extra employees were hired for extra or rush work and were laid off when such work was completed. It was not customary for them to share the work with the regular employees during periods of slack production. Prior to the hearing, the Board issued subpoenas daces tecwrn to Swanson requiring the production of employment records and other personnel information for the period under consideration. 2e The respondent retained Joseph Conti , T W. U A financial secretary , who joined the Pederal Union shortly before the bearing Lester Mayo, T. W. U. A. executive committee- man, was discharged for cause. His case is discussed in subsection 2, below 21 Another officer laid off and included among the charging employees is Arthur Tweedale, T W U A. vice president The complaint as to his case was dismissed upon his failure to appear at the hearing as a witness in his own behalf, and accordingly , his case will not be discussed herein 2s He testified later, however, that Helen Caristrom , a charging employee, was a tempo- rary employee. EMPIRE WORSTED MILLS, INC. 313 At the hearing counsel for the respondent stated that the respondent would not comply with the said subpoenae except under court order. During the course of the hearing, Swanson stated that he was willing to prepare the desired records and information if it was agreeable to counsel for the respondent. The latter declined to take a position regarding this proposal, however, and none of the documentary evi- dence subpenaed was produced .29 Upon the entire record we find that, with two possible exception S,31) the charging employees do not fall within the category of irregular employees, and that, aside from the charging employees, most of the workers released during this period were only temporary or extra employees. The respondent did not question the efficiency of the charging em- ployees, and Swanson admitted that those in the picking and mend- ing department were "quite efficient." 31 Some of the 19 charging employees here under consideration were better than average work- ers and were complimented by their supervisors. These charging employees were not chosen for separation from the respondent's pay roll because of the quality of their work. Upon all the evidence, we are convinced that T. W. U. A. mem- bership and activity constituted a definite factor in the selection of employees for lay-off. Moreover, scrutiny of the testimony regarding the employment records and the circumstances attendant upon the lay-off of charging employees, in many instances furnishes additional proof that the respondent vas motivated by its hostility toward the T. W. U. A. in selecting them for lay-off. We shall now discuss the individual lay-offs. 19 Swanson read into the record what he claimed was a list of the names of all employees laid off since the beginning of the depression in the departments under his supervision, the picking and mending or finishing department and the packing room . The list deserves little weight for the following reasons • ( 1) Swanson did not make clear the exact period of time alleged to be covered by the list ( 2) He did not disclose whether the 23 employees named thereon were regular or irregular employees , and we are unable to ascertain this fact accurately except with respect to those employees who are also named in the complaint as charging employees . (3) With two exceptions , Swanson did not state why the services of the named individuals were terminated (He explained that one woman broke her bip and that another quit ) ( 4) Finally , the accuracy of the list is impugned by other evi- dence in the record. A number of the workers from the picking and mending department are among the charging employees , and consequently the record contains testimony regard- ing their lay-offs Swanson's list fails to include two such persons, Thyra Olofson and Eve Osterman. It also omits Joseph Bullardo , a charging employee from the shipping or packing room. ° Helen Carlstroin , and Flora wise, who, according to the testimony of Virginia Pickle- seimer, a charging employee , was hired as extra help in the spring of 1937 with the under- standing that she was to be one of the first laid off in the event of decreased production See subsection b, below 3 With the possible exception of Helen Ca ilstiom 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Employment history ; union activity ; specific defenses ; concluding findings Weaving department-Wilhelmina Anderson, Herbert Ramsey, Florence Ramsey, Thelma Kahle, and Ida Mayo The respondent's weaving department is composed of two weaving sheds, a small one containing two weaving sections and a large one containing three. Until August 1937 the five sections were operat- ing on morning and afternoon shifts, with a total of about 54 weavers on each shift. The entire department is operated under the general supervision of James Lee, weaving superintendent. Each weaving section is assigned to a loom fixer, a skilled employee who assists weavers by adjusting and repairing their looms. He is essential to the functioning of the section and is to some extent responsible for the quantity and quality of the work done by the weavers of his section. We shall here consider in chronological order the termination of two weaving sections on the afternoon shift in the small shed, sec- tions assigned, respectively, to John Ramsey and his son, Herbert Ramsey, loom fixers, and the alleged discrimination against charging employees employed on these sections. (1) John Ramsey's section of weavers-Wilhelmina Anderson John Ramsey's section of weavers was composed of 10 weavers who worked in the small shed and another weaver whose looms were located in the large shed. On or about August 9, 1937, John Ramsey voluntarily left the respondent's employ and on or about the same date the respondent shut down the section and laid off the 11 weavers until further notice, maintaining that business conditions did not warrant replacing Ramsey and continuing to operate the section. Wilhelmina Anderson, a charging employee, was one of the weavers thus laid off on or about August 9. She had been employed by the respondent as a weaver off and on for about 18 years. In June 1937 she joined the T. W. U. A. and wore her union button at work in the presence of Superintendent Lee. She went to almost every T. W. U. A. meeting, even after her lay-off, and Lee saw her enter the union hall to attend one held in or about the latter part of July 1937. She testified without contradiction that her fellow weavers joined the T. W. U. A. but "changed over" to the Shop Union when it was formed. Anderson, however, did not join the Shop Union. In the past it had been the respondent's custom to notify em- ployees to return to work when they were needed. It appears that the respondent proposed to adhere to the same practice with respect EMPIRE WORSTED MILLS, INC. 315 to John Ramsey's section and to recall such of these weavers as were needed without any prior application by them, for, as we have noted, the section was shut down "until further notice," and Lee advised Anderson that he would call her if he needed her. The record does not indicate that those of the 11 weavers who returned to work did so as a result of application for reinstatement. We find that after her lay-off, Anderson remained an employee, within the meaning of Section 2 (3) of the Act. At least six of the weavers from John Ramsey's former section were reinstated after their lay-off, and Herbert Ramsey, T. W. U. A. president, testified that more than five of the weavers reinstated were members of the Shop Union. Anderson, however, who re- mained loyal to the T. W. U. A., was denied reinstatement despite her numerous applications therefor. She had greater seniority than any other weaver from the section. Superintendent Lee did not question her efficiency, testified that he had no "trouble" with any of his employees, and offered no plausible explanation for his pref- erence of the weavers recalled, to the exclusion of Anderson. He testified further that weavers were rehired from the former section as vacancies arose, and that he selected those whom he could most easily contact, without regard for union affiliation. There is no evidence in the record, however, to indicate that Anderson was any more inaccessible for recall than the employees reinstated,32 or that Lee tried at any time to send word to her to return to work. Anderson testified that one of the weavers was returned to work on the day following the lay-off of the section, on or about August 10, and that a second one was reinstated in the same week. Lester Mayo estimated that all the weavers rehired were rehired within 2 weeks of the lay-off. Lee testified that he could not give the dates on which the weavers were rehired. He stated vaguely that he re- employed them at "varying times," that there "wouldn't be any need for taking anybody in for quite a while" after the subsequent lay-off of Herbert Ramsey's weaving section on December 8, 1937, and vary- ingly, that the first reinstatement "must be" during December 1937 or, he "should say," the year 1938. Such vague approximations are worthy of little if any consideration in view of Lee's access to the respondent's employment records and the respondent's refusal to produce such records at the hearing. We credit Anderson's straight- forward testimony and find that one of her fellow-weavers was rehired on or about August 10 and another during the same week. Considering all the facts, including Anderson's seniority and Lee's failure to make a credible explanation of her exclusion, we are con- vinced that Lee would have reinstated Anderson the day following =Anderson lives in Jamestown , where the plant is located 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her lay-off had he not known her to be a staunch T. W. U. A. adherent. We find that the respondent failed to reinstate Anderson on or about August 10, 1937, because she joined and assisted the T. W. U. A. Prior to her lay-off, Anderson was paid upon a piece-work basis. At the time of the hearing, she had secured 4 weeks of work as a cook, earning $11 a week. She testified that she would accept reinstatement. (2) Herbert Ramsey's section of weavers-Herbert Ramsey, Florence Ramsey, Thelma Kahle, and Ida Mayo Herbert Ramsey, son of John Ramsey, was loom fixer for the re- maining afternoon section in the small shed, which, like his father's section, was composed of 10 weavers who worked in the small shed and another weaver who worked upon looms located in the large shed. - On December 8, 1937, the day following the respondent's execution of its contract with the Federal Union, Swanson laid off Ramsey and the 11 weavers in his section by posting a notice that the section would "shut down indefinitely." We shall first discuss the cases of Ramsey and three of the weavers who are charging employees 33 and then discuss the respondent's contentions regarding the lay-off of this section. Herbert Ramsey was employed by the respondent as a loom fixer in December 1934.34 He testified without contradiction that he was complimented upon his work by Swanson and Lee, and that he had greater seniority as a loom fixer than two other loom fixers who were not laid off, Willard Schmerhorn and Edward Lee. Schmerhorn was originally a loom fixer but proved so inefficient that he was removed from that position in December 1934. Ramsey was made a loom fixer at that time to replace him. Schmerhorn worked for several years as a weaver but about a year prior to the hearing was given the job of another loom fixer who became ill. Edward Lee, a nephew of Superintendent Lee, was considered a "learner," for he had had only about a year's experience and had done the work of a loom fixer at the plant only since November 1937. Ramsey testified with- out contradiction that 1 year is insufficient time in which to become a competent loom fixer. Ramsey joined the T. W. U. A. in April 1937; was elected T. W. U. A. representative of the loom fixers, in which capacity he 83 We shall not treat individually the cases of Genevieve Carlson, Alice Nelson, and Mary Garfield , three other charging weavers, for these cases were dismissed from the complaint with consent of counsel for the Board. 84 He worked as a weaver for 10 days before becoming a loom fixer. EMPIRE WORSTED MILLS, INC. 317 often discussed with Superintendent Lee the working conditions of the loom fixers and related matters; was made T. W. U. A. vice chairman; and in the latter part of June 1937, was elected T. W. U. A. president. He was a member of the negotiating committee which sought to negotiate a contract with the respondent in June 1937, and he testified in September 1937 at the earlier Board hearing held pur- suant to charges of unfair labor practices engaged in by the re- spondent. As T. W. U. A. president, his name appeared on notices of meetings posted at the plant and once on leaflets distributed among the employees. Superintendents Lee and Greenwood admittedly knew that Ramsey was a leader of the T. W. U. A. On one day around the middle of June 1937, when Ramsey was busily engaged upon. some rush sample work for Superintendent Lee, William Beck, a foreman, summoned Ramsey and two other em- ployees to the locker room and asked them whether or not they were interested in the Shop Union. They replied that they were not and Ramsey inquired who gave Beck authority to call him away from his work. The latter answered that he did so upon his own initiative. Lee met Ramsey coming out of the locker room and reprimanded him for being away from his rush work. He apologized, however, when Ramsey explained the reason for his absence.35 On November 5 or 6, 1937, the day that the Federal Union received its charter, Campbell, later president of the Federal Union, openly displayed the document to the employees in various departments of the mill. Beck approached Ramsey on this occasion, put his arm on the latter's shoulder, and said, "Well, Herb, I suppose you are with us now, aren't you?" Ramsey replied, "If you are referring to the A. F. of L. charter that you have, no, my mind is the same as it was when you took me away from my work." 36 At the time of his lay-off Ramsey was working 15 hours per week and was earning 82l/, cents per hour. He earned only $20 after his lay-off and testified that he would accept reinstatement. Florence Ramsey, Herbert Ramsey's wife, was first employed by the respondent in July 1935, worked for about a year, took about 6 months off, and then worked steadily for the respondent until Decem- ber 8, 1937, the date of her lay-off. She joined the T. W. U. A. in May 1937, became a member of its entertainment committee, wore her T. W. U. A. button at work in Lee's presence, and distributed some T. W. U. A. membership application cards. Once her name appeared in Jamestown newspapers in connection with the activities of the T. W. U. A. entertainment committee. "Beck was not called as a witness at the hearing. 86 Two brothers of Herbert Ramsey are still employed by the respondent . The record does not disclose their union affiliation, if any 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mrs. Ramsey was paid upon a piece-work basis 3' and was earning between $10 and $11! a week at the time of her release. She earned no money after her lay-off and testified that she desired reinstatement. Thelma Kahle, Herbert Ramsey's sister, was employed by the respondent as a weaver from June 5, 1935, to December 8, 1937. She wore her T. W. U. A. button to work, became a member of the T. W. U. A. entertainment committee, and also had her name published in Jamestown newspapers in connection with the functions of that com- mittee. She testified without contradiction that about 25 weavers were hired subsequent to the date she was first employed, and that at least 1 of the 25 was still working at the plant, a "learner" whom she taught to weave. Kahle was paid upon a piece-work basis and. earned between $10 and $12 per week prior to her lay-off. She earned nothing there- after and testified that she desired reinstatement. Ida Mayo, another weaver, worked for the respondent for a total of approximately 6 or 7 years. During this time she laid off work voluntarily for 3 or 4 months and,then returned to work, her last period of employment extending from May 1934 to December 8, 1937. She testified without contradiction that weavers with less seniority than she were still working at the plant. Ida Mayo was a member of the T. W. U. A. entertainment commit- tee, wore her T. W. U. A. button to work, and secured new union members. The names of the members of the entertainment committee were published in Jamestown newspapers once or twice. Ida Mayo is the wife of Lester Mayo, a charging employee and executive com- mitteeman of the T. W. U. A. The latter testified that on January 28, 1938, he had a friendly argument with Superintendent Lee regard- ing the respective merits of the T. W. U. A. and the Federal Union. According to Mayo's testimony, during the course of the argument Lee asked him why he was so much opposed to the latter organiza- tion : Mayo replied that it was because he felt that it was not a "real legitimate A. F. of L. union"; he asked Lee what he could do about certain disputes which he was having with other employees about union matters; and Lee stated that he could not tell him what to do but that if he were Mayo, he would join the Federal Union, that that "would help promote peace amongst the workers," who were "only getting even" with Mayo for being active in the T. W. U. A. Mayo also testified as follows : He [Lee] says, "I know your wife wants to come back to work" . . . He said [that if Mayo signed up with the A. F. of L.] that would give him something to work on. Then he ' All of the weavers were paid upon a piece-wort: basis except two who were paid hourly wages. EMPIRE WORSTED MILLS, INC. 319 would be free to put her back to work. He said, "The way things are now, I am not at liberty to do as I would like to do." Lee denied that he ever suggested that Mayo join the Federal Union or any other labor organization, or stated that the other work- ers were "getting even" with Mayo for being a T. W. U. A. member. Lee admitted, however, "I might have said I wished that things would get settled down here, either C. I. O. or A. F. of L., or some- thing, to get the family relations back to where they ought to be ..." In the light of all the evidence we consider Mayo's testimony credible and find that Lee made the statements attributed to him by Mayo. Mrs. Mayo was paid upon a piece-work basis prior to her lay-off and earned nothing thereafter. She testified that she would accept reinstatement. Respondent's defense as to Herbert Ranwey's section.-The re- spondent contends that it laid off Ramsey and his section pursuant to the curtailment program, without regard for the union affiliation of the employees involved. We find this contention difficult of belief in view of the evidence. A majority of the persons comprising the section were members of the T. W. U. A.,38 and we have noted that the section included the president and at least three committee mem- bers of the T. W. U. A. Only three of the weavers in the section were affiliated with the Federal Union and unaffiliated with the T. W. U. A.3° Some time after December 8, Superintendent Lee reinstated three employees of Herbert Ramsey's section, Dora Chap- man and Anna Lessing, Federal Union adherents 40 and Genevieve Carlson, who prior to her lay-off had joined both the T. W. U. A. and the Shop Union. At the time of the hearing Carlson was a member of the Federal Union. Kahle testified that Lessing and Carlson were "old-time" employees, and that she had less seniority than Carlson. Ida Mayo termed herself an "old-time" weaver, and testified that she had greater seniority than Lessing, but less seniority than Chapman and Carlson. Lee claimed that he reinstated the weavers whom he could "contact" most easily, but submitted no facts to show that the three reinstated were any more accessible for recall than the other eight weavers from the section. Moreover, he admitted that he was not sure that the three reemployed were senior in service to the others on the section. 38IIerbert Ramsey, Florence Ramsey, Thelma Kahle, Ida Mayo Mary Garfield, Alice Nel- son and Genevieve Carlson, all charging employees Carlson had also joined the Shop Union Another \%eaver, Anna Johnson, was a member of both the T W. U. A and the Federal Union Edith Nelson, still another weaver, was formerly a member of the T. W. U. A. and the Shop Union. 39 Dora Chapman (also a Shop Union member ), Anna Lessing, and Eva Chapman. We have noted that Anna Johnson was a member of both the T. W. U. A. and the Federal Union. 40 Anna Johnson and Eva Chapman were the only Federal Union members not reinstated. The former was also a member of the T. W. U. A., and the latter had been ' employed only a short time. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although Lee testified generally that he reinstated the three weavers to fill vacancies which had arisen on other sections, the record shows that two of Herbert Ramsey's looms were placed in operation after his lay-off, those located in the large shed ; that they were allocated to other afternoon weaving sections ; and that Lessing, a Federal Union adherent, was reinstated upon these looms. The respondent contends further that Herbert Ramsey's section was more costly to operate than the other sections , allegedly because the looms on Ramsey's section were run with electric power bought from a Jamestown public utility company, while most of the power for the looms on the other sections was generated at the plant. This testimony was not clear and Swanson failed to explain why utility power had to be bought for only this particular section. He admitted that he had not estimated the operating costs recently and failed to support his testimony by producing the old estimates which he claimed were at the plant. Moreover, although the respondent was in poor financial condition and had suffered several slack periods after 1932, from 1934, at least, and probably from before that time, until Decem- ber 1937, Herbert Ramsey's section was continuously operated in the afternoon despite the alleged additional cost of electric current. Fi- nally, Herbert Ramsey testified that in the periodic computations, made by the respondent at least as late as July 1937, of the relative cost of operation and efficiency of the several weaving sections and of the efficiency of the loom fixers , which computations were based upon the number of pieces woven over periods of 10 weeks, Herbert Ramsey's section ranked third among the five sections then on the afternoon shift," and that his section was superior to at least one such section in operation in December 1937. Superintendent Lee maintained that he selected Ramsey's shift for lay-off also because it was considered "extra," the small shed having been operated for a shorter period than the large one . Lee was un- able to state the date when Herbert Ramsey's section was started. This period of operation amounted to a number of years, however, and after such a lapse of time , the sections in the small shed could hardly have been deemed "extra." Furthermore, Ramsey testified without contradiction that, as T. W. U. A. representative of the loom fixers, he once questioned Lee about a rumor that the afternoon shift was considered "extra." Lee assured him that it was just as im- portant as the morning one since the advent of the National Indus- trial Recovery Act. We are convinced that the alleged "extra" char- acter of the section was not the respondent's real reason for shutting it down in its entirety. a There were only four afternoon sections after the shut-down of John Ramsey's section in August 1937. EMPIRE WORSTED MILLS, INC. 321 Finally, Lee contended that he selected Ramsey"s section for lay-off because its looms were "pretty near all empty" and because it was "the nearest to being run out" of work. He submitted no facts, however, in support of this contention. Herbert Ramsey testified that within the last 2 weeks before the shut-down, between 16 and 18 of his 22 looms were in operation, more than there had been before, and that working hours increased from 10 to 15 hours per week. Lee admitted that he did not know how many of the looms of Ramsey's section were running, testified that he would not deny Ramsey's testimony that 16 of them were in operation, and conceded that 16 was a "pretty good" percentage. Florence Ramsey also testified that work had been in- creasing within these last 2 weeks; that all the weavers on the section had some work; that she had a new warp upon which to work; and that one weaver on the section had two warps, enough to occupy her for 2 or 3 weeks under the reduced hourly schedule. The work of this section was completed by the morning shift. Herbert Ramsey testified further that during the week following the lay-off of his section, the working hours of the weavers were increased to 25 hours per week, and although Lee testified that it was natural for the fewer remaining weavers to receive more work than before, Ramsey asserted without specific contradiction that he believed that more looms were operated on the increased hourly basis than before the lay-off. We have already noted that two of Herbert Ramsey's looms were started up after the shut-down and were assigned to Lessing. Upon all the evidence, we are not convinced that this section was discontinued be- cause it had any less work to do than other weaving sections. We conclude that the respondent departed from its customary policy of sharing the work and laid off Ramsey's section in order to eliminate from the plant a nucleus of active T. W. U. A. adherents. Accordingly, we find that the respondent laid off Herbert Ramsey, Florence Ramsey, Kahle, and Ida Mayo because they joined and assisted the T. W. U. A. Picking and mending department 42-Virginia Pickleseimer, Victoria Thelander, Elsie Ostrom, Signe Erickson, Alice W. Johnson, Helen Carlstrom, Thyra Olofson, Alice M. Johnson, Gunhild Fors- berg, and Esther Herrick Virginia Pickleseimer 43 was employed by the responaent in or about August 1935 as a picker in the picking and mending depart- ment, which is under the direct supervision of General Manager Swanson. She joined the T. W. U. A. in April or May 1937, at- •2 This department is also called the finishing department. +8 Designated Picklseimer in the complaint 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tended many of its meetings, solicited new members, and was out- spoken in her opinions regarding the T. W. U. A. She testified that because of a speech by Rogerson, counsel for the respondent, she "got cold feet" and joined the Shop Union, also. On December 15, 1937, Pickleseimer received in her pay envelope a notice signed by Swanson that, clue to "working conditions," her services were no longer required. She testified without contradiction that she had greater seniority than six or eight pickers hired as extra help in the spring of 1937 with the understanding that they were to be laid off first in the event of decreased production; that only three of them were laid off; 44 and that she was more efficient than at least two of the extra employees retained after her lay-off, Violet Stophel and Hilda Carlson, both of whom were members of the Federal Union. Pickleseimer testified further that she was surprised at her release, that the amount of work in her department had recently been in- creasing, and that she therefore visited Swanson on the following day to ask the reason for her lay-off. The latter told her that he did not need her any longer. She urged him to give her some explana- tion, and he stated that he did not feel that he had to do so, but that her work was all right, and that he would recommend her to other employers. She asked if unions had caused her lay-off. Swanson replied that they had not and that he did not want to hear any- thing about unions. He said that her name had been brought down to him by some person whom he did not identify and that the matter was "entirely out of his hands." Pickleseimer told him that she had joined the C. I. O. and the Shop Union but that she had not joined the Federal Union. She testified that he inquired why she had not done so and asked her to apply for membership through Vera Moore, the Federal Union committeewoman for the picking and mending department. Although Swanson had little recollection of his con- versation with Pickleseimer, he denied that he ever discussed union activities with charging employees, mentioned the Federal Union to Pickleseimer, or referred her' to Moore. He admitted, however, that he knew of Moore's Federal Union office, and testified that he thought that Campbell, president of the Federal Union, had told him of it. Following her conversation with Swanson, Pickleseimer applied to Moore for membership in the Federal Union; this ap- plication was denied. Laura Fasciana, recording secretary of the Federal Union, testified that only persons currently employed are eligible for membership therein. The Trial Examiner, who had an A4 She testified that all three of these employees laid off were T W. U A members One of them, Flora wise, had signed up with the Fedeial Union at "the very last." Wise was a charging employee whose case was dismissed from the complaint because of her failure to appear at the hearing EMPIRE WORSTED MILLS, INC. 323 opportunity to observe the demeanor of the witnesses , found credible Pickleseimer's version of her conversation with Swanson , and upon the entire record we find that Swanson made in substance the state- ments set forth above and testified to by Pickleseimer. In the course of the above conversation on December 16, 1937, Swanson asked Pickleseimer to apply for reemployment after Janu- ary 1, 1938. She did so and Swanson told her that he had nothing for her. Like the other pickers and menders, Pickleseimer was paid upon an hourly basis , and at the time of her lay-off was earning between $8 and $10 per week. She earned nothing following her release, and testified that she would accept reinstatement. Victoria Thelander 45 worked for the respondent as a mender for a total of about 7 years between 1929 and 1937. Her last period of employment extended from November 1936 to December 15, 1937, when she received a slip in her pay envelope that she was laid off indefinitely because of business depression. Thelander joined the T. W. U. A. in May 1937, and was elected a member of its executive committee in September or October 1937. She testified without contradiction that she and the other members of the executive committee were named as such in a local newspaper. She wore her union button at work on some occasions, and attended most of the meetings of the T. W. U. A. When the Shop Union was being formed in June or July 1937, Foreman Beck asked Thelander whether she wanted to give up the T. W. U. A. She replied in the negative. Elsie Ostrom worked for the respondent for a total of 7 or 8 years, during a period of 26 years . Her last period of service started around the first part of October 1936, when she was employed as doffer and twister on the night shift in the spinning department . In Novem- ber 1936 she transferred to the picking and mending department and worked as a picker until December 15, 1937, when Ella Moeller, her forelady, handed her her wages with a lay-off slip like that given to Thelander. Ostrom joined the T. W. U. A. in May 1937. She testified that she was not active in behalf of the organization, but that she wore her union button to work, and attended some of the T. W. U. A. meetings . She applied to Swanson for reinstatement on January 3, 1938, but to no avai146 At the time of her lay-off Ostrom was earning approximately $5.78 a week. She earned nothing after her lay-off and testified that she would accept reinstatement. 45 Designated Tbilander in the complaint 11 Her husband is still working for the respondent Ile was formerly a T W U A member-but at the time of the hearing was a member of the Federal Union 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Signe Erickson worked for the respondent as a picker from June 5, 1937, until she was laid off on December 15, 1937, by a similar dismissal slip. She joined the T. W. U. A. in June 1937, attended most of its meetings, and wore her union button while at work. Erickson testified without contradiction that after her lay-off, the respondent retained two pickers who were junior to her in service and gave one of them her job. This employee, Hilda Carlson, a married woman, was formerly a member of the Shop Union and then ,,became affiliated with the Federal Union." At the time of her lay-off. Erickson was earning between $5 and $7 per week. She did not secure other employment after her lay-off and testified that she would accept reinstatement if it were offered to her. Alice W. Johnson 48 was employed by the respondent off and on as a mender from the latter part of 1923 until December 15, 1937, when her forelady, Moeller, handed her an envelope containing a lay-off slip and the wages due her. Her last period of employment commenced in 1934. She joined the T. W. U. A. in June 1937, and testified in September 1937 at the earlier Board hearing held pursuant to charges of unfair labor practices engaged in by the respondent. She was elected a member of the T. W. U. A. executive committee, was named as such in a local newspaper, attended all but one of the meetings of the T. W. U. A., and was active in its behalf. Johnson testified without contradiction that Julia Anderson, the "second" or assistant forelady who at times directs the work of the department as Moeller does, and who can recommend a discharge, had charge of Shop Union cards. On June 9, 1937, Johnson asked Anderson what right she had to distribute such cards during working hours, and Anderson replied that they were favored by the respond- ent. Moreover, in the same month, Moeller asked Johnson to sign a Shop Union slip or card 5 minutes before the end of working hours. When the latter started to read the slip, Moeller said, "Don't read it, just sign it . . . this is in a hurry, they [the slips] have got to be down in the office before quitting time." Johnson did not testify whether or not she obeyed this instruction. Johnson's work was excellent, and she was complimented by Moel- ler and Swanson with respect to her ability to mend flaws which the other menders could not repair. She testified without contradiction that the respondent retained in her department a number of employ- ees who were junior to her in service and who were affiliated with the Federal Union.49 47 The other picker retained was another Hilda Carlson, an unmarried woman. 48 Designated Alice Johnson in the complaint. 49 For example, Kathleen Beck, daughter of Foreman Beck, Irene Johnson , and Judith Anderson EMPIRE WORSTED MILLS, INC. 325 - Johnson was paid hourly wages by the respondent and her final wages amounted to approximately $6 for about 15 hours of work. She secured no employment after her lay-off and testified that she desired reinstatement. Helen Carlstrom, an active T. W. U. A. member, worked for the respondent as a mender from April 1936 50 to the date of her final lay-off, December 15, 1937. In September 1937 Carlstrom was laid off by Forelady Moeller for having absented herself from work for 3 days without notifying the respondent, but she was reinstated the same day upon her appeal to Swanson. At that time Moeller asked her if she did not know the respondent's rule against absences without notice. On December 15, 1937, the day on which the respondent laid off the five T. W. U. A. members treated above, Carlstrom was again absent from her job without notice. When she returned to the plant on the following day, she was told by Moeller that she had been laid off the day before. Swanson testified that he laid her off along with the others because she did not work steadily, staying away from work without notice. Carlstrom testified that nobody else notified the respondent of absences, but Swanson testified that the employees generally did give some notice. Swanson also testi- fied that Carlstrom had been hired as a temporary employee. The latter stated to the contrary that she was on the regular day shift and that she had shared the work with other employees. Finally, Swan- son asserted that Moeller had found Carlstrom's work somewhat deficient, and Carlstrom testified that she had received no specific complaints regarding her work. The Trial Examiner found that her lay-off was not discriminatory. Thyra Olofson 51 was employed by the respondent as a picker from February 1931 until December 31, 1937, when she received a slip in her pay envelope informing her that she was laid off indefinitely. She joined the T. W. U. A. in May 1937, attended several of its meetings, and discussed the organization with fellow workers. She signed up with the Shop Union in the summer of 1937, and also signed an application for membership in the Federal Union on De- cember 16. It was not accepted prior to her release. Her asserted reason for applying is as follows : "I signed an application .. . right after the ten girls were laid off [on December 15, 1937] to save my job, when it was a lot of other girls, a whole slew of girls, signed up to save their jobs too." She testified that she considered herself still a member of the T. W. U. A. . On January 3, 1938, following her lay-off, Olofson visited Swanson and asked why she had been released. When he replied that it was °0 She had 5 years' previous service with the respondent but had laid off for several years prior to April 1936. 61 Designated Olafson in the complaint. 283034-41-vol. 23-22 .326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of working conditions, she inquired why they could not con- tinue to share the work as they did during the previous summer when there was much less work. He stated that her husband was working but made no satisfactory answer to her query. She ques- tioned him as to whether there was anything wrong with her work, and lie stated that it was very good, and that she would be reem- ployed when there was more work. Olofson testified without contradiction that she had greater senior- ity than a number of pickers retained by the respondent after her lay-off, some of whom were hired very recently. One of these was the wife of Foreman Harry Hind, who had been employed for less than 2 years. Prior to her lay-off Olofson was earning between $5 and $8 per week. She earned nothing thereafter and testified that she would accept reinstatement. Alice M. Johnson and Gun/iild Forsberg were employed by the respondent as pickers. They were work partners. Forsberg had worked for the respondent for about 81/2 years, while Johnson began her service in November 1933. Forsberg and Johnson had seniority over a number of their coworkers, and both did special rush work and samples, which require more care and speed than the ordinary work of the department. Johnson and Forsberg joined the T. W. U. A. in May 1937 and the latter attended almost all of its meetings. Forsberg testified with- out contradiction that her attendance was observed by "men from the factory" posted outside, one of whom was Fred Ingham, an as- sistant foreman of the respondent. Although Johnson testified that she was not active in any labor organization, she attended several T. W. U. A. meetings, wore her union button to work for a time, and talked about the T. W. U. A. membership to the girls at her table. Johnson and Forsberg joined the Shop Union and paid some dues to it but did not attend its meetings. Johnson testified without contradiction that she joined because she was told to do so by Julia Anderson, the assistant forelady. Notwithstanding, both employees considered themselves to be T. W. U. A. members, and Johnson still attends T. W. U. A. meetings. Like Olofson and others, these two pickers applied for membership in the Federal Union a day or two after the December 15 lay-offs, but neither was notified of the ac- ceptance of her application. Johnson expressly indicated that she filed such an application through fear of losing her job. On December 31, 1937, the respondent gave Johnson and Forsberg lay-off slips in their pay envelopes, but did not lay off a number of workers in the department a great deal junior to them in service. Some of those retained had been employed only about 6 or 7 months. The two employees called upon Swanson; told him of their superior EMPIRE WORSTED MILLS, INC. 327 work and long service, and asked why they had been laid off. Swan- son did not answer this query but told them both to return to work on Monday, January 3, 1938. They did so and worked through January 5, 1938, when they were laid off until further notice by Moeller, their forelady. At the time of their release, Johnson and Forsberg were each working 15 hours and earning approximately $5 per week. Neither one of them secured other employment after her lay-off, and both testified that they would accept reinstatement. Esther Herrick was employed by the respondent as a knot picker from February 1932 until January 5, 1938, when Forelady Moeller laid her off until further notice. She joined the T. W. U. A. in May or June 1937 and attended its meetings. On or about December 15, 1937, she, too, signed an application for membership in the Federal Union but was not notified of its acceptance prior to her lay-off. A day or so after her lay-off, Herrick spoke with Swanson and told him that it was unfair to lay her off "while all those girls that were taken in last summer were still working." Swanson replied, "Well, we had to lay someone off." She asked him why he selected her, and. he answered, "Well, we had to start with someone," and promised that she would be reinstated "some day," when she was heeded. Herrick testified without contradiction that she was one of the oldest employees in her room, in point of service, and that the respondent retained employees who had less seniority than she. Respondent's defense as to picking and mending department. The respondent had between 60 and 80 pickers and menders on its pay roll prior to the reduction in force. Between December 15, 1937, and January 5, 1938, it terminated the employment of approximately 17 of them,J2 including the _10 charging employees whose cases we have discussed above. The respondent denies that T. W. U. A. member- ship was the criterion used in choosing those to be laid off. The record shows that at least 12 of the 17 pickers and menders laid off were affiliated with the T. W. U. A., and that 2 of the 12 were members of its executive committee. Only 1 of the 17 was rehired, all employee whose union affiliation, if any, is not indicated.53 The record does not reveal with any degree of specificity how many em- ployees in the, department were T. W. U. A. members prior to these ]ay-offs.54 This is the approximate number indicated by the testimony in the record As stated above, we shall accept this number as correct in the absence of the respondent 's employ- ment records 53 Agnes Spitz or Betz "I Herrick testified that everyone in her department joined the T W U. A and went to meetings as she did, but indicated that the Federal Union secured some members in the department Helen Bonfiglio, T. W U A secretary, admitted that practically all of the iespondent's employees could claim that they had once been T W U A members The aecoid indicates that at some undisclosed time most of the respondent 's employees signed 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Swanson testified that in laying off employees he did not consider the length of their service. He contended that he selected the workers to be released non-discriminatorily, on the basis of their being married women whose husbands were currently employed. . The record shows, however, that three unmarried women were included among the em- ployees laid off 55 from the picking and mending department, and that many married women with employed husbands were retained therein.6e Swanson failed to explain what standard he followed in retaining some-married women in preference to others named in the complaint. Moreover, he admitted that no such basis of selection had been used during prior depressions when the work had been shared. From the testimony of Superintendent Lee and Foreman Hind, from statements of counsel for the- respondent, and from the entire record, it appears that the marital status of employees was not considered in making lay-offs in other departments of the plant. The respondent pointed out also that pickers worked in pairs, and contended that they had likewise been laid off in pairs. The record shows that pickers were not laid off in pairs. Thus, the respondent retained in its employ Signe Anderson, Edna Erwin, and Hilda Carl- son, former partners, respectively, of Erickson, Olofson, and Flora Wise [Kern], charging employees, and even in instances where it laid off both partners, it did not uniformly release them on the same dates.57 It appears that such splitting of pairs of pickers and the assignment of the pickers retained to new partners did not at once serve the ends of economy, for a period of adjustment is required before two pickers can work together to the best advantage. This fact, together with the undisputed fact that Anderson, Erwin, and up also - with the Federal Union . At the time of the execution of its contract with the respondent , December 8, 1937, the Federal Union claimed a majority of the respondent's employees At the time of the hearing both organizations claimed almost 100 per cent membership among the employees . Farnella , T W U. A treasurer , admitted that practi- cally all the employees were "forced members" of the Federal Union Laura Fasciana, Federal Union secretary, testified that the latter union had over 470 members in good standing "without double-crosseis people who are with von and claim they aie with the [T W U A]" 55 Alice M Johnson , Flora Wise [ Kern] , a charging employee whose case was dismissed from the complaint because of her failure to appear at the hearing , and Mrs Wise, the latter's mother, a divorced woman, who may or may not be the Hazel Wise named in the complaint and also dismissed therefrom 5a Among these women were Signe Anderson , Hilda Carlson, Hedwig Peterson , Gladys Carlson , Mrs Hartley , Mrs Muratto, and Mrs Harry Hind , the wife of Foreman Hind In see eral instances the respondent had in its own sei vice two or more members of the sane family For example, it employed the husbands of Mrs Muratto, Mrs Hind , and Mrs Hartley as well as the son of the latter, and employed Kathleen Bech, a mender , and Fore- man William Beck, her father Agnes Spitz or Betz , the only person reinstated from the group of pickers and menders laid off, may also be a married woman, for she is refereed to in the record as Mrs Spitz or Betz The record does not disclose whether or not her husband was employed at the time of her lay-off or reinstatement 67 For example , Pickleseimer nad Eve Osterman , charging employees , were laid off on December 15, 1937, but their respective partners , Herrick and Goldie Christensen, also charging employees , were not released until January 5, 1938. EMPIRE WORSTED MILLS, [NC 329 Carlson, the single partners retained, were Federal Union members, indicates the presence of discrimination against the T. W. U. A. in the respondent's selection of employees to be laid off. Although throughout his testimony Swanson reiterated that he employed the above marriage standard and at one point indicated that marriage was the sole factor weighed, he also testified that the efficiency of employees was considered "to some extent," and later, that efficiency was given primary consideration in retaining an employee suggested for lay-off by Forelady Moeller. He admitted, however, that the charging employees from this department were "quite effi- cient," and with the possible exception of Carlstrom, did not claim that the work of any one of them was inferior to that of pickers or menders retained on the pay roll. Viewing the above facts in the light of all the evidence, the re- spondent's espionage activities, other interference with and coercion of its employees, its lay-off of other T. W. U. A. leaders and com- mittee members, Swanson's contradictory and incredible testimony in regard to his criteria of selection for lay-offs, the greater seniority of charging employees over persons retained in the picking and mending department, the retention of Federal Union members and the lay-off of their T. W. U. A. partners, and Swanson's construction of the contract with the Federal Union as providing for a closed shop, we conclude that the respondent selected Pickleseimer, Thel- ander, Ostrom, Erickson, Alice W. Johnson, Olofson, Alice M. John- son, Forsberg, and Herrick for lay-off because of their adherence to the T. W. U. A.58 Because of Carlstrom's admitted repetition on December 15 of the offense for which she had previously been tempo- rarily laid off and about which she had been warned, we agree with the Trial Examiner's finding that her release was not discriminatory. We find that the respondent laid off Pickleseimer, Thelander, Os- trom, Erickson, and Alice W. Johnson on December 15,1937; Olofson on December 31, 1937; and Alice M. Johnson, Forsberg, and Her- rick on January 5, 1938, because they joined and assisted the T. W. U. A. We find further that the respondent did not lay off Carlstrom because she joined and assisted the T. W. U. A. Spinning, combing, and drawing department-Josephine Barbagio- vanni, Hilda Russell Frederickson, Frances Farnella, and Helen Bonfiglio The spinning, combing, and drawing department is operated under the general direction of Superintendent Greenwood. It is composed of six sections performing several kinds of work, and each section is supervised by a foreman. 68 Any efforts on the part of these employees to join the Federal Union came too late and did not serve to dissociate them from the union of their choice. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) Josephine Barb agiovanni and Hilda Russell Frederickson were employed on a spinning section of Greenwood's department, super- vised by Foreman Norman Sliowlder. In this section there were ap- proximately 29 employees, only 1 of whom did not join a union. The remaining 28 employees became members of the T. W. U. A., but 7 transferred their affiliation to the Federal Union when it was char- tered. Following the execution of the contract between the respond- ent and the Federal Union and the lay-offs on December 8 and 15, 1937, 20 of the remaining 21 T. W. U. A. members, including Bar- bagiovanni, applied for membership in the Federal Union. Bar- bagiovanni the only 1 of the 20 who was a witness at the hearing, testified without contradiction that she and the other 19 employees so applied because of fear of losing their jobs. Frederickson was the only T. W. U. A. adherent in the section who failed to sign a Federal Union application card. It does not appear that the respondent laid off from this section any employees other than Barbagiovanni and Frederickson. Barbagiovanni worked for the respondent for approximately 11 years, first as a spinner and later as a twister, which position she occupied prior to the date of her lay-off, February 4, 1938. She joined the T. W. U. A. on May 11, 1937, discussed unions with other employees at the plant outside working hours, and until November 1937, attended all of the T. W. U. A. meetings, one of which was ob- served by Hind, foreman of a different spinning section, and another, by Fred Ingham, an assistant foreman under Foreman Beck. These supervisory employees are subordinates of Superintendent Green- wood. Barbagiovanni testified as a witness for the Board at the prior Board hearing held in September 1937 pursuant to charges of unfair labor practices engaged in by the respondent. As noted above, fear of loss of employment prompted Barbagio- vanni to apply for membership in the Federal Union. She filed her application on December 20, 1937, prior to her lay-off, and on January 5, 1938, Josephine Scara, a Federal Union committeewoman, in- formed her that the application had been accepted on January 4. On January 18 Campbell, Federal Union president, conferred in her department with Foremen Showlder, Olson, Beck, Hind, and Arthur Ingham and then with Scara, and on the same date Scara told Barba- giovanni that her name had been stricken from the list of those accepted on January 4.59 On January 24, 1938, Barbagiovanni was unable to report to work because of illness. She notified the respondent of this fact. On co It may be that Barbaglovanni filed another such application after her lay-off, for both Laura Fasciana , Federal Union secretary, and D W. Crawford, A. F. of L. organizer, testi- fied that an application of hers was rejected because it was signed when she was not work- ing. Fasciana testified that she had heard of the earlier application but that she did not know about the action taken upon it, if any. EMPIRE WORSTED MILLS, INC. 331 February 4 she sent her brother to the plant to tell Foreman Showlder that she wanted to return to work on February 7. Showlder advised her brother, "Well, we don't have so much work, tell your sister to stay home," until further notice. About a week later, Barbagiovanni went to the plant and asked Showlder why he had laid her off. He replied that he had been ordered to do so. She reminded him that her frame was still running, and he stated, "Well, your frame [is] running but you got to stay home," making no mention of slack work. Showlder did not testify at the hearing. Superintendent Green- wood, his superior, stated that Barbagiovanni was laid off because there was insufficient work but did not deny that her frame had continued to operate. He admitted that during her illness Barba- giovamni had been replaced by an extra girl, and testified, ". . . we thought we would give her [Barbagiovanni] lots of time to recuper- ate before she came back." Barbagiovanni had been absent from work every winter due to illness and had always been returned to work without difficulty prior to her 1938 lay-off. Greenwood testified that in selecting employees for lay-off he at- tempted to observe seniority principles. Barbagiovanni ranked third in seniority among the eight twisters in her section. Upon all the evidence, including the fact that Greenwood ordered her lay-off without regard for his alleged seniority practice, we are convinced that if Barbagiovanni had not been an active T. W. U. A. member, the respondent would have permitted her to return to work at the conclusion of her illness as usual, instead of retaining an extra girl_60 We find that the respondent laid off Barbagiovanni on February 4, 1938, because she joined and assisted the T. W. U. A. Just prior to her lay-off Barbagiovanni worked 8 hours a day, 51/2 days per week, and earned 401/2 cents per hour. She testified that she would accept reinstatement. Frederickson was employed by the respondent as a spooler from June 1933 until the date of her lay-off, February 10, 1938. She joined the T. W. U. A. in April or May 1937, and attended all but the first two of its meetings. She was elected a member of the T. W. U. A. executive committee and was named as such in a local newspaper. She did not join the Shop Union or the Federal Union, although appli- cation blanks for the latter were circulated in the workroom. In February 1938 Frederickson and the five other spoolers in her section were sharing the available work, each in turn laying off for a day while the other five worked. In accordance with this system, Frederickson stayed away from work on February 10. On the same day Greenwood sent her a message to remain home until he sum- ^O Barbagiovanni has a sister and brother who are working at the plant. Both are meta_ hers of the Federal Union. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD honed her. She went to the plant on the following day and asked him why she was being laid off. She testified that Greenwood re- plied, "You know we are slack, and we are talking of removing that spool." When she asked him if that was true, he laughed. Fred- erickson testified also that she learned that her spool was not in fact removed but that two winders worked on it at times. Greenwood testified that Frederickson's machine was not running and that no new employee had been hired to take her place. When he was questioned as to whether anyone had done her work since her lay-off, lie testified that he did not know and admitted that employees were shifted around "a little." We find that winders in fact did Fred- erickson's work on some occasions. Frederickson had less seniority than the other spoolers in her sec- tion, but she testified without contradiction that her work was better than that of the other spoolers, probably due in part to her 13 years' previous service in another worsted mill, and that she had experience in winding and yarn inspection in addition to spooling. Moreover, Frederickson had greater seniority than three employees retained on doffing and twisting operations in her section. Two of the three had been T. W. U. A. members, but had joined the Federal Union. The third was not a T. W. U. A. member. Considering Frederickson's lay-off in the light of her excellent qualifications and performance, her T. W. U. A. office, the fact that she was the only employee in her section who did not apply for mem- bership in the Federal Union, and the entire record, we conclude that her activities in behalf of the T. W. U. A. constituted a sub= stantial cause for the termination of her employment. We find that the respondent laid off Frederickson on February 10, 1938, because she joined and assisted the T. W. U. A. At the time of her lay-off Frederickson was earning approximately $15.25 per week at a rate of 381/ cents per hour. She secured no employment after her lay-off and testified that she would accept reinstatement. (2) Frances Farnella and Helen Bon,figlio, T. W. U. A. treasurer and secretary, respectively, were employed as doffers 61 on two differ- ent spinning sections of Greenwood's department. Although the respondent employed doffers in four or five sections of the plant, Far- nella and Bonfiglio were the only doffers laid off pursuant to the alleged economy program. Farnella was employed by the respondent as a doffer and bobbin setter from May 29, 1933, until February 11, 1938, the date of her lay-off. She joined the T. W. U. A. on May 14, 1937. After the formation of the Shop Union in June or July 1937, Angeline Saia, an employee, took a Shop Union application card to Farnella's 61 Also called duffers in the record. EMPIRE WORSTED MILLS, INC. 333 mother, and advised the latter that Farnella should join the Shop Union for "protection." Saia, a committee member formerly of the Shop Union and later of the Federal Union, was employed as a doffer in another spinning section and was there entrusted with special work by her foreman, Joseph Chapman. Thereafter, Far- nella signed a Shop Union card but attended only one of its meetings. She testified that she "didn't belong to the shop union," but remained a member of the T. W. U. A. She wore her T. W. U. A. button to work every day, and attended all but one of the T. W. U. A. meet- ings, a number of which were spied upon by supervisory officials of the respondent. She was elected temporary room representative and later treasurer of the T. W. U. A., and played a leading part in its affairs. Superintendent Greenwood named her as one of the T. W. U. A. leaders whom he knew. On February 11, 1938, upon Greenwood's orders, Harry Hind, fore- man of Farnella's section, laid Farnella off until further notice and assured her that her work was, "Very satisfactory. In fact, more than satisfactory." Farnella had much greater seniority than Annette Nal_bone, another duffer in her section, who had been working for the respondent for less than a year. Nalbone was a Federal Union committee member, and Hind admitted that he had heard of that fact. Farnella went to see Greenwood and asked him why she had been laid off. He replied that he no longer wanted or needed her services; upon her inquiry, he stated that her work was "not satisfactory at all"; and when she told him what Hind had said of her work, asserted that Hind "didn't have the nerve enough" to tell her the truth. She pressed Greenwood for a further explanation of her lay-off and he answered by saying, among other things, that she was not "fair" to the respondent; that he did not necessarily observe seniority rights; and that the respondent "had to get rid" of her. On the same day, Farnella consulted Swanson regarding her release. He told her that because of poor business, there were going to be even more lay-offs, but failed satisfactorily to explain why she was the only one laid off in her section. On February 18 Farnella returned to the mill for her wages and questioned Hind as to why he had told Greenwood that her work was "no good." Hind denied that he had made any such report to Greenwood and stated that Greenwood had only been "kidding" her if he had said any such thing. As noted above, Hind told her that the Federal Union had a closed-shop contract with the respondent. She told him that Campbell was boasting that she had been dis- charged because of her failure to join the Federal Union, and Hind stated, "Well, if Campbell said that, why don't you go and see Camp- bell? Why don't you go to their union meetings and everything will be all right?" 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Farnella spoke with Greenwood on the same day. According to Farnella's testimony , he told her , among other things, that the Fed- eral Union had a closed-shop contract ; that Farnella had "double- crossed" the respondent when she "stuck by" the T. W. U. A.; that he had to "get rid" of her because she kept so many people from joining the Federal Union; and that, "You [Farnella] are out now. As far as you are concerned, you are out, the factory is closed for you" ; referred to John L. Lewis as a "fat head " ; and inquired what Lewis had ever done for the people . Farnella denied that she had stopped anybody from joining any union and told Greenwood that everyone in the department except herself had joined the Federal Union. She testified further that Greenwood said that he had heard that she was working for the C. I. 0. and had made a speech in its behalf on February 12; that he asked her what more she wanted; and that she denied working or making a speech for the C. I. 0. Green- wood testified generally that he did not converse with anybody about the union activity of the employees in the plant . We credit the straightforward testimony of Farnella and find that Greenwood in substance made the above statements which she attributed to him. At the hearing Greenwood did not advance poor work as a reason for Farnella's being singled out for lay -off. Hind testified that Far- nella was an average worker , admitted that she was senior in service to Nalbone, the Federal Union committeewoman , and stated that he did not think there was any reason for selecting her for lay-off. Later, when urged to give some explanation of this disregard of seniority, Hind testified, "I suppose the choice was between her [Frances Farnella] and this Nalbone girl and they laid Frances off because the Nalbone girl was the better worker. " This was clearly conjectural testimony, unsupported by evidence in the record. More- over, Hind admitted that Greenwood did not consult him as to whom to lay off but merely ordered him to terminate Farnella. Under all the circumstances, it is apparent that Greenwood eliminated Farnella from his staff not because she was less efficient than Nalbone but because her T. W. U. A. membership and office marked her as an undesirable employee. We find that the respondent laid off Farnella on February 11, 1938, because she joined and assisted the T . W. U. A. At the time of her lay -off, Farnella was earning 361/2 cents an hour and was working 8 hours a day . She secured no subsequent employ- ment elsewhere and testified that she would accept reinstatement to her position with the respondent. Bonfiglio was employed by the respondent as a doffer from Feb- ruary 1936 until February 11, 1938, the date of her lay-off. She joined the T. W. U. A. on or about May 14, 1937 , wore her union button at work most of the time, and attended T. W. U. A. meetings, EMPIRE WORSTED MILLS, INC. 335 at least one of which was watched by Fred Ingham, assistant fore- man. She was elected T. W. U. A. secretary and her name appeared on all T. W. U. A. notices of meetings posted in the plant. About 10 of the 16 employees on her section were T. W. U. A. members. Some time prior to January 1938, Saia, Federal Union committee- woman, approached Bonfiglio during working hours, offered her a Federal Union membership application blank, and warned Bonfiglio that she would lose her job if she did not sign it before January 1. Saia refused to state from whom she secured this information. Later Bonfiglio asked Saia why she preferred the Federal Union to the T. W. U. A., stating, ". . . common sense will tell you that if the com- pany favors the A. F. of L. to the C. I. 0., that the A. F. of L. is not a genuine A. F. of L. organization." Saia answered that- the respondent was the "boss." Bonfiglio did not join the Federal Union. On February 11, 1938, Chapman, foreman of the section, laid off Bonfiglio upon orders from Greenwood. She was the only employee laid off from the section. She applied to Greenwood for reinstate- ment but without success. Greenwood told Bonfiglio that she was selected for lay-off from her section because she was "probably" the youngest employee there. She denied this and told him that there were four girls there with less seniority than she. Greenwood replied, "Well, you had it coming to you." At the hearing Green- wood testified that Chapman had "thought" Bonfiglio to be the youngest employee in the section and that he, Greenwood, had in- structed Chapman, "Well, we will have to lay some of them off, be- cause we haven't got enough to do. You had better lay her off, anyway." When questioned as to whether he considered Bonfiglio's union affiliation at the time of her lay-off, Greenwood replied, "Not necessarily, no." Chapman was not questioned by the respondent concerning the reason for Bonfiglio's lay-off. Bonfiglio testified that she had greater seniority than four of the seven doffers with whom she worked,62 and that Jenny Sarsone, one of the four, was an active Federal Union adherent. From his observation of the demeanor of the witnesses on the stand and the above facts, the Trial Examiner accepted her testimony in preference to that of Greenwood, based upon what Chapman was alleged to have told him. We agree with the Trial Examiner, and find, that Bonfiglio was senior to four of her coworkers. Thus in laying off Bonfiglio, Greenwood departed from his alleged observance of seniority principles. In view of the circumstances surrounding her release, Greenwood's statement that she "had it coming" to her, and his access to the respondent's employ- ment records, we do not believe that Greenwood chose her because of 02 At one point in her testiinouy, Bonfiglio stated that four girls were hired after she was laid off but other parts of her testimony indicate that she meant to say that these girls were hired after she was hired, and had less seniority than she. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mistaken information regarding her seniority status. We are con- vinced that Bonfiglio was selected as the sole employee to be released from this section because of her outstanding and well-publicized par- ticipation in T. W. U. X. affairs. We find that the respondent laid off Bonfiglio on February 11, 1938, because she joined and assisted the T. W. U. A. Prior to her lay-off Bonfiglio earned about 36 cents per hour and worked from 2 to 4 days per week. At the time of the hearing she had had less than 2 weeks' service in a temporary office job paying $12 per week. She testified that she was earning more money than she had earned just prior to her release by the respondent, but that the new job was not a steady one and that she would accept rein- statement if offered to her. We find that the respondent discriminated in regard to the hire and tenure of employment of Wilhelmina Anderson, Herbert Ramsey, Florence Ramsey, Thelma Kahle, Ida Mayo, Virginia Pickleseimer, Victoria Thelander, Elsie Ostrom, Signe Erickson, Alice W. Johnson, Thyra Olofson, Alice M. Johnson, Gunhild Fors- berg, Esther Herrick, Josephine Barbagiovanni, Hilda Russell Frederickson, Frances Farnella, and Helen Bonfiglio, thereby dis- couraging membership in a labor organization, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. In view of the above findings, we shall dismiss without prejudice the allegations of the complaint that the respondent discriminated against Herbert Ramsey and Alice W. Johnson because they gave testimony under the Act, within the meaning of Section 8 (4) of the Act. We find that the respondent has not discriminated in regard to the hire and tenure of employment of Helen Carlstrom, thereby discouraging membership in a labor organization. 2. The discharges for cause Mae Dame, an active member of the T. W. U. A., was employed by the respondent as a doffer and winder in March 1934 . The com- plaint alleges that the respondent , by its allocation of work to Dame, discriminated against her in regard to the hire and tenure of her em- ployment, because she joined and assisted the T. W. U. A. and gave testimony under the Act at the prior Board hearing held in Septem- ber 1937 pursuant to charges of unfair labor practices engaged in by the respondent. Dame testified that Gust Olson, her foreman, was always "picking" on her; that when she was working as a winder, he sometimes assigned her too large a portion of the work and gave her less pay than she should have received ; and that during slack periods EMPIRE WORSTED MILLS, INC. 337 when the employees were sharing the work, he laid off her and several other T. W. U. A. members more frequently than he did Shop Union adherents. In October 1937 she complained to Swanson of not re- ceiving a fair share of the work. Swanson relayed her complaint to Greenwood, who, in Swanson's presence, denied that she was being discriminated against. At the hearing; Olson denied that he had "picked" on Dane or anybody else, and testified that he treated all the employees "alike." The Trial Examiner found that the respond- ent had not allocated work to Dame discriminatorily, and in view of the vagueness of Dame's testimony and Olson's denial, we agree with this finding. The complaint alleges also that the respondent terminated Dame's employment discriminatorily because she joined and assisted the T. W. U. A. The Trial Examiner found that her release was not discriminatory. Dame was discharged on November 19, 1937, under the following circumstances. Christine Fasciana, a doffer with some supervisory duties, told Dame that she was not supposed to doff on the side of the machine where she was then doffing and asked her to work on the other side. Dame refused to do so and Fasciana re- ported the matter to Superintendent Greenwood. From the testi- mony, much of which is confused and contradictory, it appears that Dame then engaged in a bitter altercation with Greenwood and that Greenwood discharged her. We agree with the Trial Examiner's finding that the discharge was not discriminatory. Lester Mayo, a member and committeeman of the T. W. U. A., was employed by the respondent as a weaver from 1930 until February 10, 1938, when Swanson discharged him. It was the respondent's prac- tice to discharge any employee who was threatened with garnishment proceedings and who did not immediately arrive at a satisfactory settlement with his creditor. The respondent asserts that Mayo was released pursuant to this practice. From the testimony, much of which is in conflict, it appears that Mayo was indebted to- C. E. Sea- ger, a grocer; that on February 10 the latter conferred with Swanson at the plant in an effort to collect the sum due; that Swanson sum- moned Mayo to the conference; that Mayo failed to make any ar- rangements for settling the debt; that Swanson thereupon discharged Mayo, stating, "I have got no work for you anyway"; that Mayo then said to Swanson, "I have done the best I can and I cannot pay that bill on the wages I am making. I am at your mercy, you can let one go if you want to, but do you call that justice?"; and that later on the same day, a local constable attempted to serve on the respondent a writ of garnishment secured against Mayo by another creditor. We are not convinced that the respondent's defense is untruthful or that this application of the garnishment rule was a pretext for oust- ing a T. W. U. A. adherent. 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent has not discriminated in regard to the hire and tenure of employment of Mae Dame and Lester Mayo, thereby discouraging membership in a labor organization. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, -intimate, and substan- tial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Since we have found that the respondent has engaged in 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 and to restore as nearly as possible the conditions which existed prior to the commission of the unfair labor practices. We have found that the respondent discriminated in regard to the hire and tenure of employment of Wilhelmina Anderson, Herbert Ramsey, Florence Ramsey, Thelma Kahle, Ida Mayo, Virginia. Pickleseimer, Victoria Thelander, Elsie Ostrom, Signe Erickson, Alice W. Johnson, Thyra Olofson, Alice M. Johnson, Gunhild Forsberg, Esther Herrick, Josephine Barbagiovanni, Hilda Russell Frederick- son, Frances Farnella, and Helen Bonfiglio. We shall therefore order their reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. Such reinstatement shall be effected in the following manner : All employees hired during or after the failure to reinstate or the lay-offs here in question shall be dismissed, if necessary to to provide employment for those to be offered reinstatement. If, thereupon, by reason of a reduction in force, there is not sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining employees in accordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has here- tofore been applied in the conduct of the respondent's business. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a pref-' erential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such EMPIRE WORSTED MILLS, INC. 339 list, be offered employment in their former or substantially equiva- lent positions, as such employment becomes available and before other persons are hired for such work. We shall order the respondent to make whole the above-named employees for any loss of pay they have suffered by reason of the discrimination against each of them, respectively, by payment to each of a sum equal to the amount which he would normally have earned as wages from the date of the discrimination against him to the date of the offer of reinstatement or placement upon the prefer- erential list in accordance with the method set forth above, less his net earnings e3 during said period. 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 Union of America is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Wilhelmina Anderson, Herbert Ramsey, Florence Ramsey, Thelma Kahle, Ida Mayo, Virginia Pickleseimer, Victoria Thelander, Elsie Ostrom, Signe Erickson, Alice W. Johnson, Thyra Olofson, Alice M. Johnson, Gunhild Forsberg, Esther Herrick, Josephine Bar- bagiovanni, Hilda Russell Frederickson, Frances Farnella, and Helen Bonfiglio, thereby discouraging membership in Textile Workers Union of America, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the respond- ent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. as 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 lay-off or discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Join- ers of America, Lumber and Sawmill Workers Union, Local f590, 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 clue 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 . Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N L. R. B. 219, enf'd as mod, Republic Steel Corporation v. N. L. R B , 107 F ( 2d) 472 ( C C. A 3 ), cert. den. April 8, 1940. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The respondent has not discriminated in regard to the hire and tenure of employment of Joseph Bullardo, Helen Carlstrom, Mae Dame, or Lester Mayo, within the mednmg 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, Empire Worsted Mills, Incorporated, Jamestown, New York, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of Amer- ica or any other labor organization of its employees, by discharging; laying off, or failing or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment, because of their membership or activity in Textile Workers Union of America or any other labor organization of its employees ; (b) III 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 purposes of collective bargaining and other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the National Labor Relations Board finds will effectuate the policies of the National Labor Relations Act : (a) Offer to Wilhelmina Anderson, Herbert Ramsey, Florence Ramsey, Thelma Kahle, Ida Mayo, Virginia Pickleseimer, Victoria Thclander, Elsie Ostrom, Signe Erickson, Alice W. Johnson, Thyra Olofson, Alice M. Johnson, Gunhild Forsberg, Esther Herrick, Jo- sephine Barbagiovanni, Hilda Russell Frederickson, Frances Far- nelia, and Helen Bonfiglio immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth in Section V above, placing those employees for whom em- ployment is not immediately available upon a preferential list in the manner set forth in the said section, and thereafter offer them em- plovment as it becomes available; (h) Make whole Wilhelmina Anderson, Herbert Ramsey, Florence Ramsey, Thelma Kahle, Ida Mayo, Virginia Pickleseimer, Victoria Thelander, Elsie Ostrom, Signe Erickson, Alice W. Johnson, Thyra Olofson. Alice M. Johnson, Gunhild Forsberg, Esther He Jo- EMPIRE WORSTED MILLS, INC. 341 sephine Barbagiovanni, Hilda Russell Frederickson, Frances Far- nella, and Helen Bonfiglio for any loss of pay they have suffared by reason of the discrimination against them, by payment to each of them, respectively, of a sum of money equal to that which each would normally have earned as wages during the period from the date of the discrimination against him to the date of the offer of reinstatement or placement upon the preferential list. required by paragraph 2 (a) above, less his net earnings,64 if any, during said period; deducting, however, from the amount otherwise due to each of the said employees, monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, munici- pal, or other government or governments which supplied the funds for said work-relief projects; (c) Immediately post in conspicuous places in its plant at James- town, New York, and keep posted for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs '2 (a) and (b) of this Order; and (3) that the respondent's employees are free to become or remain members of the T. W. U. A. and the respondent will not discriminate against any employee because of membership or activity in that organization; (d) Notify the Regional Director for the Third Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint, in so far as it alleges discrimination with respect to Joseph Bullardo, Helen Carlstrom, Mae Dame, and Lester Mayo be, and it hereby is, dismissed. AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent discriminated against Herbert Ramsey and Alice W. Johnson within the meaning of Section 8 (4) of the Act, be, and it hereby is, dismissed, without prejudice. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order. 84 See footnote 63, supra 283034-41-vol 23-23