Washougal Woolen Mills

DECISIONS AND ORDERS OF THE NATIONAL LABOR RELATIONS BOARD In the Matter of WASHOUGAL WOOLEN MILLS and LocAL 127, TEXTILE WORKERS UNION OF AMERICA 1 Case No. C-469.-Decided April 22, 1940 Woolen Cloth Manufacturing Industry-Procedure : charges not filed by a party to dispute but by another labor organization which did not admit em- ployees of respondent to membership-Interference, Restraint, and Coercion: persisting in treating employees on strike as non -employees and as employees who had quit their employment ; imposing discriminatory conditions to rein- statement-Unit Appropriate for Collective Bargaining : employees engaged in production of woolen cloth , excluding office and supervisory employees-Repre- 8entatives : proof of choice : lists of persons transcribed from union ledger com- pared with respondent's pay roll revealed that Union represented majority in appropriate unit; there being no proof to the contrary , Board presumed that Union majority continued-Collective Bargaining : appeal to employees following Union's request to bargain held to be refusal to; refusal to bargain with respect to employees who had walked out in consequence of a labor dispute-Labor Dis- pute: employees' persistence in bringing about a change of working conditions felt to be injurious to their interests-Strike: caused and prolonged by unfair labor practices-Discrimination : discriminatory condition to reinstatement dur- ing strike ; refusal to reinstate 22 employees upon individual application- Settlement : held not to effectuate policies of Act and Board refused to be bound by-Remedial Oruler : cease and desist order as to unfair labor practices found ; respondent, however, not ordered to bargain with Union ; due to union's failure to file charges, enter an appearance, or otherwise indicate that it would pursuant to conditions stated in such cases request respondent to bargain collec- tively-Reinstatement Ordered-Back Pay: limited from filing of charges and in two cases limited from date of amendment of complaint. Mr. Daniel Baker and Mr. Thomas P. Graham, for the Board. Maguire, Shields & Morrison, by Mr. Robert F. Maguire and Mr. Donald K. Grant, of Portland, Oreg., for the respondent. McMullen cC Snider, by Mr. Dale McMullen, of Vancouver, Wash., for the Intervenor. Mr. S. G. Lippman, of counsel to the Board. 'Counsel for the charging union moved that its name appear as now set forth in the caption No objection was made thereto. The motion is hereby granted. 23 N. L. R B., No. 1. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Textile Workers Union of America, Local 127, herein called Local 127, the National Labor Relations Board, herein called the Board, by the Regional Director for the Nineteenth Region (Seattle, Washington), issued its complaint dated January 29,1938, against Washougal Woolen Mills, Washougal, Washington, herein called the respondent, alleging that the respondent had engaged in, and was engaging in, unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and- (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respond- ent and Local 127. The complaint alleged in substance : (1) that before, on, and after November 7 and 11, 1935, the respondent refused to bargain with United Textile Workers of America, Local 2077, herein called the Union, the exclusive representative of its employees in an appropriate bargaining unit; (2) that between November 11 and 18, 1935, the respondent discharged 22 named employees because of union mem- bership and other concerted activity; (3) that because of these unfair labor practices employees of the respondent went on strike; and (4) that the respondent, by these and other specified acts interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. - On February 4, 1938, the Regional Director, acting on the respond- ent's motion, postponed the hearing and extended the time for the fil- ing of an answer. On February 17, 1938, the respondent duly filed its answer, among other things, denying that it had engaged in the alleged unfair labor practices. On February 17, 1938, the respondent moved that the complaint be dismissed on the ground that the charge was not filed by a real party in interest, and that certain allegations of the complaint be stricken on the ground that they were irrelevant and immaterial. These motions are hereby overruled.2 Pursuant to notice, a hearing was held at Vancouver, Washington, on February 21, 23, 24, 26, 28, March 1, and 2, 1938, before Madison Hill, the Trial Examiner duly designated by the Board. At the open- 'Article II, Section 1-Series 1, as amended, and Article II, Section 1-Series 2, as amended, of the Board's Rules and Regulations each provide that a charge may be made by "any person or labor organization." WASHOUGAL WOOLEN MILLS 3 ing of the hearing the Trial Examiner permitted a representative of certain employees, herein called the Intervenor, to intervene'and file an answer.' The Board, the respondent, and the Intervenor were repre- sented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing, the respondent renewed its mo- tion to dismiss the complaint on the ground that Local 127, the charg- ing labor organization, was not a, party to the dispute covered by the complaint. The motion is hereby overruled. During the hearing coun- sel for the Board moved to amend the complaint to include two addi- tional named employees as having been discharged and refused reinstatement because of union membership and other concerted activi- ties. The respondent objected on the ground that the charging labor organization was not a party to the dispute covered by the complaint'. The objection is hereby overruled and the motion to amend is hereby granted. The respondent moved to dismiss the complaint,on the ground that in December 1935 a charge was filed with the Regional Office covering all the matters alleged in the complaint and that after an investigation the Regional Director refused to issue a complaint. Such alleged refusal cannot bar the present proceeding. The motion is hereby overruled. At the close of the Board's case, the respondent moved that certain allegations of the complaint be stricken for failure of proof. The motion is hereby overruled. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On March 18, 1938, the Board, acting pursuant to Article II, Sec- tion 37 (a), of National Labor Relations Board Rules and Regula- tions-Series 1, as amended, ordered that the proceeding be trans- ferred and continued before it. On March 31, 1938, the respondent moved that the Trial Examiner file an Intermediate Report and re- quested permission to file a brief. On April 2, 1938, the Board denied the motion with respect to the filing of an Intermediate Report. On April 6, 1938, the Board issued a notice setting a hearing for the pur- pose of oral argument before the Board for May 10, 1938. On May 3, 1938, the Board issued a notice postponing such hearing. On September 12, 1938, the Board directed that Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order be issued. On September 20, 1938, the respondent moved to set aside this direction. The motion is hereby overruled. Thereafter the Board directed that the parties herein should have the right, within twenty (20) days from the receipt of the proposed findings, to file exceptions, to request 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD oral argument before the Board, and to request permission to file a brief with the Board. On December 27, 1939, the Board issued and duly served on the parties its Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order. Thereafter, the respondent, the Intervenor, and Joe Webber, an employee alleged to have been discriminated against, filed exceptions to the proposed findings. The respondent and the Intervenor, respectively, also filed a brief and a written statement, in support of their exceptions. Pursuant to notice, a hearing was held before the Board in Wash- ington, D. C., on February 15, 1940, for the purpose of oral argument. The respondent, Local 127, and the Intervenor were represented at the hearing. The Board has considered the exceptions, brief, and written state- ment and, in so far as the exceptions are inconsistent with the findings of fact, conclusions of law, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Washougal Woolen Mills, is engaged in the manu- facture of woolen cloth at Washougal, Washington. The respondent purchased 4,300,000 pounds of raw wool during 1935, 1936, and 1937. It obtained approximately 42 per cent of this material from outside the State of Washington. During the same period the respondent also purchased other products, including dyes, oils, and soaps, from out- side the State of Washington. The respondent's annual sales are valued at approximately $1,000,000. It ships 85 per cent in value of its manufactured product to States other than Washington. The respondent admits that its business affects interstate commerce. IT. THE ORGANIZATIONS INVOLVED Textile Workers Union of America, Local 127, is a labor organiza- tion affiliated with the Congress of Industrial Organizations. It does not admit to membership employees of the respondent. United Textile Workers of America, Local 2077, is a labor organiza- tion affiliated with the American Federation of Labor. It remained active from December 1933 until December 23, 1935. During this period it admitted to membership employees of the respondent en- gaged in the production of woolen cloth, excluding supervisory and clerical employees. WASHOUGAL WOOLEN MILLS 111. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively 1. The appropriate unit The complaint alleges that all the respondent's employees engaged in the production of woolen cloth, excluding office and supervisory employees, constitute an appropriate bargaining unit. The respond- ent's answer stated that it was "without knowledge" as to this allega- tion, and therefore denied it. The class of workers in the alleged unit is that which the Union admitted to membership and which is represented in bargaining negotiations throughout its active existence. The respondent intro- duced no evidence at the hearing contesting the appropriateness of the alleged unit. We find that all the respondent's employees engaged in the produc- tion of woolen cloth, excluding office and supervisory employees, constitute a unit appropriate for the purpose of collective bargaining, and that said unit will insure to said employees the full benefit of their right to self-organization and to collective bargaining, and other- wise effectuate the policies of the Act 3 2. Representation by the Union of a majority in the appropriate unit The complaint alleges, and the answer denies, that before, on, and after November 7, 1935, the respondent refused to bargain with the Union as the exclusive representative of its employees in an appro- priate bargaining unit. The respondent's pay-roll cards which were introduced into evi- dence reveal that during August 1935 the respondent employed ap- proximately 300 employees and during November 1935 approximately 294 employees in the appropriate bargaining unit. The Board intro- duced into evidence lists of persons who were members of the Union for the months of August and November 1935. These lists were tran- scribed from the union ledger. The respondent, although given an opportunity to compare the lists of members and the union ledger, at no time questioned the authenticity of the membership lists of the union ledger. A comparison of the membership lists and the re- spondent's pay-roll cards, resolving every doubt against the Union, reveals that during August 1935 at least 188, and during November a Cf Matter of National Weaving Company and Textile Workers Organizing Committee, 7 N. I, R B 916 ; Matter of Ingram Manufacturing Company and Textile Workers Organ- iztinq Committee, 5 N. L. R. B. 908; Matter of American Woolen Company, Nat'l. and Providence Mills and Independent Textile Union of Olneyville, 5 N L. It. B 144; Matter of Oregon Worsted Company and United Textile Workers of America, Local 243j, 2 N. L. It. B. 417. 283034-41-vol. 23-2 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1935, at least 184, of the respondent's -employees in the appropriate bargaining unit were members of the Union. During August and November 1935, therefore, the Union represented a majority of the respondent's employees in the appropriate bargaining unit. There being no proof to the contrary we may presume that the Union continued to represent a majority of the respondent's em- ployees in the appropriate unit from August 1 through December 23, 1935, the date when the Union ceased, to be active.4 The respondent stipulated during the hearing that the Union represented a majority of its employees during the period of the controversy discussed below. We find below that a labor ' dispute occurred at the respondent's plant, on and after November 11, 1935, and that many of the respond- ent's employees ceased work because of it. Since these employees retained their status as employees within the meaning of Section 2 (3) of the Act, the dispute had no effect on the Union's majority status. Besides, it does not appear that, even were we to deduct these employees, the Union would lose its majority during this period. We find that from August 1 through December 23, 1935, the Union was the duly designated representative of the respondent's employees in the unit which we have found to be appropriate for the purposes of collective bargaining and pursuant to Section 9 (a) of the Act was the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain (a) History The respondent had conferred with, and made concessions to, the Union at various times. About July 20, 1935, the executive com- mittee of the Union presented the respondent with a proposed Nation- wide contract which also provided for a closed shop. C. M. Bishop, the respondent's president, expressed himself as being in favor of a national wage scale, but stated that he was opposed to the closed- shop provision of the contract and that he would not consider sign- ing the contract unless members of the executive committee person- ally signed it and guaranteed its performance by the Union, on the alleged ground in part that the Union was not financially responsible. He also stated, at the time, according to Glen Holland, president of 4N. L. R. B. v. National Motor Bearing Company, 105 F. (2d) 652 (C. C. A 9), enf'g Matter of National Motor Bearing Company and International Union, United Automobile Workers of America, Local No. 76, 5 N. L R. B 409; International Association of Machin- ists, Tool and Die Makers Lodge No. 35, Affiliated with the International Association of Machinists et al Y. N. L. R. B, 311 U. S 729, enf g Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No. 459, 8 N. L. R. B. 621. WASHOUGAL WOOLEN MILLS 7 the Union,"that he had not signed a collective bargaining agreement in 30 years of business and that he did not intend to start now. Although C. M. Bishop testified, he did not deny Holland's testimony in this regard. Accordingly, we find that Bishop, in substance, made the statement testified to by Holland. About August 14, 1935, the executive committee of the Union met with Bishop again to discuss the proposed contract. At this con- ference, the Union requested Bishop to adjust the wages of employees in the lower wage brackets. Bishop promised to consider the matter. The next day, however, Bishop called all the employees together in the respondent's yard, stated that he had an offer to dispose of the mill and that he had no idea that the employees were dissatisfied, and requested all employees who were in favor of working at the existing wage to raise their hands. At this point Holland intervened and said, "Mr. Bishop, this is not fair to the Union, you know that a person can't live on 35 cents an hour." Bishop replied, "I am sorry, Glen, I am talking now." Thereafter, most or all of the employees present raised their hands. Bishop testified that his purpose in assembling the employees was to acquaint the employees with poor business conditions so that they could make necessary personal adjust- ments; and that he called for a show of hands to receive assurance that the employees would cooperate with him. It is clear, however, and we find, that Bishop, in summoning the employees and addressing them as he did immediately after the Union presented its wage demand, sought to go over the head of the designated bargaining agent and thereby forestall its collective bargaining efforts. On November 7, 1935, the executive committee of the Union again requested Bishop to sign the contract which the Union had presented to him on July 20. Holland testified that Bishop replied "that he had been in business too long to sign an agreement with his employees." Although Bishop testified that he objected to a closed-shop provision he did not deny that he made this statement attributed to him by Holland. We find that Bishop, in substance, made the statement attributed to him by Holland. The executive committee also made a request with respect to the spinning department. This request and events relating thereto are set forth below in Section III B. On November 11, 1935, as we find below, employees of the respond- ent left work in connection with a labor dispute. On November 18 the Union demanded that these employees be reinstated and that the matter in dispute be submitted to arbitration. The respondent, in reply, issued a mimeographed statement, which among other things set forth the following : Accordingly, all former employees employed in the spinning room who voluntarily left and quit their positions have by their own action left our employ and as a result thereof, and not other- 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wise, they are no longer in our employ. There are, therefore, at the time I am addressing you no employees in our employ with whom we have any controversy, or any dispute. I feel I have no duty either moral or legal to any person or group of persons who quit their employment with this company under circumstances that I have just outlined, and it is only prompted by a sense of courtesy to you that I appear at this meeting. Spinning jobs are open to any person or persons who make application for such work and whose application is approved. Favorable consideration will be given to such spinners as were formerly in our employ upon satisfactory individual assurance to us that the stoppage of work as now occasioned, under the circumstances described, will not re-occur in the future. No more is asked. In behalf of our employees who want steady work there is an obligation to ask for as much. ... we stand ready at any time in the future, as in the past, to discuss with our employees or their representatives any matters affecting their working conditions, but we have nothing to discuss with persons or their representatives who are not in our employ.5 G The complete statement Is as follows : STATEMENT BY MR. C M. BISHOP DELIVERED TO REPRESENTATIVES OF THE UNION AT MEETING ON'MONDAY, NOVEMBER 18, 1935 There now exists no controversy or dispute between the Washougal Woolen Mills and its employees. On Friday, November 8th, 1935, we were delivered an oral ultimatum by a worker who stated that on Monday, November 11th, no one spinner would work on two mules . We were given no opportunity to discuss the matter but were notified definitely and preemptorily. On Monday, November 11th, 1935, there having been no intervening working days from the time the ultimatum was given us, the three spinners on the first shift who were work- ing double mules appeared at the mill and stated that they would only work one mule apiece in the future. They were notified that their jobs required that they operate two small mules apiece on fine yarn as they had been doing in the past, and they thereupon each and all of them voluntarily quit their position with this company. After they had refused to work on the jobs assigned to them and individually expressed their desire to quit their employment they were paid for their services rendered to that date which they accepted. After they voluntarily left their employment, by some pre-arranged signal, they notified the other spinners on shift, who thereupon came to the office and individually expressed their desire to quit their services and they too were also paid for their services tendered to that date which they accepted. The spinners on the other two shifts voluntarily refused to appear for work although their jobs were held open for them. After waiting a reasonable period of several days for them to assume their work they also were paid for their services up to the time they volun- tarily quit their positions and refused to work further. Accordingly, all former employees employed in the spinning room who voluntarily left and quit their positions have by their own action left our employ and as a result thereof, and not otherwise, they are no longer in our employ. There are therefore at the time I am WASHOUGAL WOOLEN MILLS 9 On December 12 the Union repeated the demands which it had made on November 18.6 The respondent issued a mimeographed state- ment which set forth the union resolution and then proceeded as follows : OUR REPLY Is that we are willing to meet with our employees or their chosen representatives at any time as we have always done in the past, to discuss any matter affecting the working conditions of our employees. We do not feel obligated, however, to meet with employees or their representatives to discuss matters affecting persons who have quit their jobs and are no longer in our employ. The management feels a definite responsibility to keep the mill running harmoniously for all those employees who are at work and will be glad to have those who are not working return to their jobs as quickly as there is work for them to do. The mill will be operated as long as there are sufficient employees to maintain operations on a practical basis, or until such time as being on the "Unfair List" might make it impossible to continue. Friday, December 13, 1935 C. M. BISHOP , President. now addressing you no employees in our employ with whom we have any controversy or any dispute. I feel I have no duty either moral or legal to any person or group of persons who quit their employment with this company under the circumstances that I have just outlined, and it is only prompted by a sense of courtesy to you that I appear at this meeting. All of the other workers in the mill remained at their employment but unfortunately we were forced temporarily to lay some of them off because there was no work for them due to stoppage of operations in the spinning room. Spinning jobs are open to any person or persons who make application for such work and whose application is approved . Favorable consideration will be given to such spinners as were formerly in our employ upon satisfactory individual assurance to us that a stoppage of work as now occasioned , under the circumstances described , will not re-occur in the future. No more is asked . In behalf of our employees who want steady work there is an obligation to ask for as much. The Wagner-Connery Law insures both employee and employer of their rights to con- tinue work or to discontinue as they choose . Any statement to the contrary is an untruth. Our attitude in this matter is in strict conformance wih the provisions of the Wagner- Connery Law and we stand ready at any time in the future, as in the past , to discuss with our employees or their representatives any matters affecting their working conditions but we have nothing to discuss with persons or their representatives who are not in our employ. 9 The union demands of December 12 were made by the executive committee of the Union pursuant to a resolution adopted at a meeting of the Union on December 8. The testimony is in conflict as to whether the resolution was adopted after a motion to adjourn had been passed. The resolution is recorded in the minute book of the Union. The respondent did not predicate any action or refusal to act in respect to the alleged unfair labor practices on the ground that the resolution of December 8 was irregular . The regularity of the December 8 resolution was not challenged at the meeting of the Union on December 14; and that part of the resolution which dealt with the bargaining demands was never rescinded. although, as noted below , other parts, dealing with picketing the plant and placing it on an unfair list, were rescinded at a meeting of the Union held on December 21. Under these circumstances we find that the executive committee , in seeking to bargain with the respondent on December 12, was acting on behalf of the Union. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Concluding findings The respondent's statements in reply to the union demand on July 20, hereinabove set forth, reveal the respondent's hostility toward col- lective bargaining with the Union. Its subsequent treatment of union demands constitutes a refusal to bargain in good faith with the Union. The respondent's action on August 15, in appealing to the employees instead of negotiating with the authorized agents of the Union, was an attempt to undercut the authority of the Union by going over the heads of its representatives, thereby discrediting it.' Although the respondent met with the Union on November 7, it was not bargaining in good faith since its reply to the Union's request to sign the proffered agreement was, in substance, that Bishop would not sign a contract with the Union.8 ° The respondent took the position on November 18 and December 12, in response to the demands of the Union, that it was not obligated to bargain with respect to the employees who had walked out since they were no longer in its employment. As we find below, these employees were engaged in a current labor dispute and were, accordingly, em- ployees within Section 2 (3) of the Act. The respondent was, there- fore, obligated to bargain with respect to them upon request of the Union. Moreover, without regard to the status of these persons with- in Section 2 (3) of the Act, the union demands of November 18 and December 12 that the respondent reinstate the employees who had left work and submit the matter in dispute to arbitration were legitimate subjects of bargaining within Section 9 (a) of the Act, and therefore the respondent was obligated to negotiate with the Union with respect to those demands. We find that on August 15, November 7, November 18, and December 12, 1935, the respondent refused to bargain with the Union as the representative of its employees in the appropriate bargaining unit with respect to wages, hours of employment, and other conditions of work, and, thereby, engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. We find further that the respondent by the above conduct inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, within the meaning of Section 8 (1) of the Act. 7 N. L R. B. v. Remington Rand, Inc., 94 F. ( 2d) 862 (C. C. A. 2), cert denied, 304 U. S 576, enf'g Matter of Remington Rand, Inc and Remington Rand Joint Protective Board of the District Council Office Equipment Workers , 2 N. L. R . B. 626. BY. L. R B. v. Highland Park Manufacturing Co., March 11 , 1940 ( C. C. A. 4), enfg Matter of Highland Park Manufacturing Co. and Tevttle Workers Organizing Committee, 12 N. L. R. B. 1238 ; Art Metal Construction Company and International Association of Machinists, Local 1559, affiliated with District #65, of the I. A. M. (A. F. of L.), 12 N. L. R. B. 1307. WASHOUGAL WOOLEN MILLS 11 B. The labor dispute and the events relating thereto 1. Sequence of events The complaint, as amended, alleges and the answer denies that the respondent discriminatorily discharged and refused to reinstate Joe Webber, Louis Zelatel, and the employees named in Appendix "A" because of their union membership and other concerted activities. In 1930 the respondent had instituted two-mule spinning, wherein one employee watched over and operated two mules simultaneously. The spinners were opposed to the two-mule system because they feared that this system jeopardized their jobs and for other reasons related to their employment. On or about November 6, 1935, the respondent instructed Milo Baldwin, who had hitherto been operating a single mule, to com- mence operation of two mules. The spinners agreed thereupon to secure the elimination of two-mule spinning, but striking if necessary, and Baldwin informed his foreman that he would not operate two mules. On November 7 the executive committee of the Union requested the respondent to abolish the two-mule system. The respondent indi- cated that it might be too expensive but promised to investigate and consider the proposal. That afternoon, Bishop stated to Holland that it would cost about $10,000 annually to replace the two-mule system with single-mule spinning.9 In November 8 Peter Depoe, shop steward of the Union, and Hol- land concluded that Bishop would not voluntarily abolish the two- mule system and instructed the spinners not to operate two mules com- mencing Monday, November 11. Thereupon Depoe informed the respondent that the spinners would not operate two mules on and after November 11. On November 9 the Union met and Holland, as chairman of the executive committee, reported on the results of the conference with Bishop held on November 7, and in this connection announced that the spinners had decided to refuse to operate two mules beginning Monday, November 11. It does not appear that there was any opposi- tion to the proposed action of the spinners at this meeting. On November 11 C. M. Bishop, the respondent's president, sum- moned Glen Holland, Clarence Darling, and Ernest Schaffer, the three employees engaged in two-mule spinning, and asked them whether each of them refused to operate two mules. Upon their 6 On November 11, after the commencement of the walk-out, Bishop called the employees of the respondent together and told them that to abolish two-mule spinning would cost about $10,000, and that be would prefer to distribute such a sum throughout the plant rather than only in one department. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replying in the affirmative, Bishop directed them to work under the two-mule system and stated that unless they did they would be dis- charged. The three employees stated that they would operate one mule but persisted in their refusal to operate two mules. Bishop thereupon characterized them as having quit their employment and caused them to be paid off. As they were leaving they offered to continue work under the two-mule system if the respondent would agree to summon the executive committee of the Union and submit the controversy to arbitration. The respondent rejected this offer and the three employees left the plant. The remaining spinners at the plant decided, thereupon, to join Holland, Darling, and Schaffer. In reply to Bishop's questioning, the spinners stated that they were leaving in protest against the re- spondent's action with respect to the three two-mule spinners. Some stated also that they were leaving in protest against the two-mule system. Bishop caused these spinners to be paid off and they left the plant. Spinners on other shifts and other employees soon joined the walk-out. They received their checks by mail on November 15 with letters in which the respondent stated : "We regret that you have not appeared for work . . . but assume since the job was held open for you that you have decided to quit for reasons known to yourself." On November 18, as we have noted, the Union requested the re- spondent to reinstate the employees engaged in the walk-out and arbitrate the "two-mule issue" and Bishop refused to consider the matter on the asserted ground that they were no longer employees of the respondent, since they had quit the respondent's employment. Bishop also stated at the time that spinning jobs were open and that the respondent would give "favorable consideration" to those persons who could give "satisfactory individual assurance" that such a walk- out would not occur again in the future. On November 19 employees participating in the walk-out estab- lished a picket line at the plant.7° Although the Union had not declared a strike, pickets carried a banner with the name of the Union thereon. On November 20, at a meeting of the Union, employees who opposed the walk-out moved that a strike vote be taken. Holland, presiding, ruled the motion out of order on the ground that the requisite notice for a strike vote had not been given. On November 23 a further meeting was held evidently for the purpose of taking a strike vote. Adherents of the spinners' walk-out prevented their opponents, how- ever, from attending the meeting. Consequently no action was taken by the Union on the question at this meeting. 10 Participants in the walk-out continued to picket the plant on and off until December 15 WASHOUGAL WOOLEN MILLS 13 For about 2 weeks following November 11, the respondent had informed participants in the walk-out by notice and word of mouth that their jobs were being held open. Thus Bishop requested Clarence Darling and Walter Newman to leave the picket line and return to work. On or about November 25 the respondent filled the positions with replacements from Portland, Oregon, and in some instances by transfers from other divisions of the plant. On December 8, at a meeting of the Union, a resolution was adopted authorizing the executive committee to renew the demands of No- vember 18, and to picket the plant and place it on an unfair list if the respondent did not accede to them.11 On December 12, as we have noted, the executive committee of the Union requested Bishop : "To restore all employees who are now or have been out in protest ... and to arbitrate the issue now pend- ing . . ." To this Bishop replied : "We do not feel obligated to meet with employees or their representatives to discuss matters affecting persons who have quit their jobs and are no longer in our employ." On December 15 a meeting was arranged for the purpose of settling the walk-out. 'Representatives of the Union and the respondent at- tended. Eugene Cushing, county attorney, and Denby Brown, a member of the Central Labor Council, were also present. At this conference the Union agreed to abate the picketing pending the out- come of further negotiations with the respondent. Cushing and Brown requested the respondent to reinstate the employees still engaged in the walk-out. The respondent persisted in its position that these persons had quit. The respondent asserted further that it would reinstate participants in the walk-out as vacancies might occur, but that it would not displace the employees hired on and after November 25, unless they would consent to such displacement, since they had been promised regular positions. On December 17 Cushing reported to the Union and the respondent that three old employees who had been transferred to spinning had agreed to re- turn to their former positions, but that none of the new employees would consent to relinquish his position. On December 21 the Union revoked the authority of the executive committee to picket the plant and place it on an unfair list. On December 23 the Union submitted to the respondent a proposal in the form of a resolution for the settlement of the walk-otit.12 n See footnote 6, supra. "The resolution reads as follows : All persons, men or women, who ceased working in the Washougal Woolen Mills at the beginning or during the time of the present controversy shall be returned to their 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This proposal as construed by the union membership prior to its adoption did not require displacement of the spinners hired on and after November 25. The respondent, in a mimeographed statement, stated its "acceptance" of the union offer, "based, of course, upon what we understand the resolution to mean." 18 Thereafter, the Union did not, by resolution , adopt or reject the respondent's pur- ported acceptance. About 32 spinners, weavers, and employees from other departments participated in the walk-out at one time or another. About eight of these employees were reinstated. It does not appear that any em- ployees, for whom former or equivalent positions were available, re- fused to work on and after December 23 because of, or in connection with, the two-mule dispute. The complaint alleges discrimination with respect to the remaining 24 employees-Louis Zelatel, Joe Webber, and the 22 employees named in Appendix "A." We have noted that the respondent for about 2 weeks following the walk-out posted a notice that the jobs of participants in the walk-out positions formerly held by these men or women without discrimination against anyone for the part he or she may have taken in the recent labor trouble. All spinners will be returned to their positions as soon as possible in the order of their seniority, with the understanding that, unless lack of orders prevent, all will be returned in the near future with preference over any new employee. Upon acceptance of this resolution by the management , all employees agree to return without further delay , upon their first shift of the next work day. The statement of "acceptance" quotes the union resolution and continues as follows: WASHOUGAL , WASHINGTON , December 23, 1935. The above resolution has been submitted to us for our acceptance . We are disposed to accept this resolution and our acceptance thereof is based, of course, upon what we under- stand the resolution to mean. The first provision requiring the re-employment of all persons without discrimination ror any part an employee may have taken in the recent labor trouble , we assume does not relate to spinners or any employees who failed to return to their work after the first strike signs were removed and to Whom no assurance was given that they would be re -employed. After the second picketing was established certain employees remained away from their positions and persons who were employed in their stead were notified that when the old employees returned their old positions would be available for them. As to the portion of the resolution relating to the employment of spinners , we assume your resolution is based upon the fact, as established by Mr. Cusbing, District Attorney of Clark County , Washington, that the present spinners determined not to waive the present seniority held by them which was based upon our assurance that if they accepted the em- ployment, their positions would be permanent . We will not break faith with those work- ers any more than we would with any others . We have repeatedly explained that the old spinners quit their employment and they were invited to return, which they refused to do, and which compelled us, in order to keep the plant operating for the benefit of ourselves and other workers interested , to obtain other spinners who are now employed and whose positions are permanent . Nevertheless we will employ no more spinners and weavers from the outside other than previous spinners and weavers formerly in our employ , and will give these former spinners and weavers employment as soon as possible based upon efficiency, and need of work until all those desiring work have been employed , as discussed with us in a meeting with the Executive Committee of the Union , Although the spinners quit their jobs and thereby have no seniority , yet in deference to your resolution , along with what we determine to be their efficiency and need of work, we are willing to give some consideration to their previous period of employment with us, as your resolution requests. WASHOUGAL WOOLEN MILLS. WASHOUGAL WOOLEN MILLS 15 were being held open for them, that in some instances it solicited in- dividual employees to return to work, and that on November 18, De- cember 12, and 15 collective applications for reinstatement were made on behalf of the striking employees. Subsequent to December 23 Louis Zelatel applied for and was re- instated., He thereafter worked until April 17, 1936, when his em- ployment was terminated. There is no showing that Zelatel was not reinstated to his former or to a substantially equivalent position. Zelatel did not testify and there is no evidence in the record explaining the reason for the termination of his employment. Accordingly, we shall not order the respondent to offer him reinstatement. During the pendency of the walk-out the respondent requested Joe Webber to return to work. Webber testified that he informed the respondent that he could not return that day because he had to visit a sick relative in Portland but agreed to return the next day. Accord- ing to Webber, when he returned from Portland 2 days later the re- spondent refused to reinstate him on the ground that it did not require his services. On Webber's own testimony we conclude that the re- spondent had offered him reinstatement which, the record affirma- tively shows, he did not reject because of, or in connection with the two-mule dispute. Moreover, the record does not establish that the respondent's subsequent refusal to reinstate him was discriminatory. Accordingly, we shall not order the respondent to offer Webber reinstatement. Paul Shepherd, named in Appendix "A," had been in charge of the rewinders. The respondent refused to reinstate him as head of the reminders but instead offered him a position as an ordinary rewinder. This was not a substantially equivalent position and Shepherd refused to accept it. Subsequent to December 23, five employees listed in Appendix "A,714 applied for reinstatement and were given temporary employ- ment for varying periods. None of these employees was reinstated with his full seniority. By reason of such loss of seniority these employees were the first to be laid off, while employees who had been hired subsequent to November 25 were retained. These five em- ployees have thus not been reinstated to their former or substantially equivalent positions. Subsequent to December 23, 13 other employees listed in Appendix "A715 applied for and were refused reinstatement on the asserted 14 Russell Jones, Walter Newman. Edwin Pederson . Willis White, and Milo Baldwin. When the picketing temporarily ceased . Willis White returned to work. However, when the picketing was resumed, on or about December 12, he again left work. 15 Louis Meyer, Sam Depoe, Peter Depoe, Glen Jones, Herman launch, Frank Martmjack, Louis Schellig, James Blackburn , Ralph Dahl , Carl Scherph , Ray Nallion, Clarence Dar- ling, and Roy White. When the picketing temporarily ceased Ralph Dahl returned to work. However, when the picketing was resumed on or about December 12, he again left Bork. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ground that the respondent had no work for them and that they would have to "await their turn." The record shows that their posi- tions were filled with other persons on about November 25 and there- after. The respondent contends that Roy White, one of these 13 em- ployees, was subsequently offered and refused reinstatement in April 1936. One Campbell, a foreman, offered him a job in April. White testified that Campbell stated to him at the time that he did not know whether the job would last for "a few nights or weeks," and so he refused the offer. Campbell denied that he made this statement testified to by White but since the full seniority of other participants in the walk-out who were reinstated was not restored to them upon such reinstatement, thereby increasing the probability of their lay- off, and upon the entire record, we credit White and find that re- spondent did not offer to return him to his former or substantially equivalent position. As to the remaining three employees listed in Appendix "A"18 al- though they did not apply individually for reinstatement, as noted, collective applications on behalf of all the participants in the walk- out were made. Barney Kaiser, one of these employees, met Bishop during the walk-out and refused Bishop's request that he return to work on the ground that he "couldn't return to work until the (Union) gave me permission." Bishop then told him that he was discharged. A moment later Bishop reversed himself 'and stated : "You are not fired, you are quitting." Bishop's purported discharge of Kaiser and his purported treatment of Kaiser as having quit had no effect on his status as an employee. 2. Concluding findings By Section 2 (9) of the Act the term "labor dispute" includes any controversy concerning terms, tenure, or conditions of employment. Employees of the respondent had determined to eliminate two-mule spinning because they feared that this system jeopardized their em- ployment and for other reasons related to their employment. They communicated their determination to the respondent. The respondent did not abolish two-mule spinning and the employees concluded that it would refuse to make the change desired by them. The employees persisted, nevertheless, in their determination to bring about an end to a condition of employment felt to be injurious to their interests. Whether or not their determination was prudent is immaterial in this connection.- It is clear, therefore, and we find, that on and after '- Glen Holland , Roy Jenkins , and Barney Kaiser. 17 N. L R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333, rev'g 92 F. (2d) 761, 87 F (2d ) 611 (C. C . A 9), and enf'g Matter of Mackay Radio & Telegraph Company, a Corporation and American Radio Telegraphists Association, Ban Francisco Local No. 3, 1 N L. R. B 201. WASHOUGAL WOOLEN MILLS 17 November 11, 1935, there existed at the respondent's plant a "labor dispute" within the meaning of Section 2 (9) of the Act. The controversy with respect to the two-mule system was current on and after November 11, 1935, and Holland, Darling, Schaffer, and the other employees who joined the walk-out ceased work " as a conse- quence of, or in connection with" this current labor dispute. The respondent's conduct in characterizing them as employees who had quit and causing them to be paid for work already performed cannot alter the fact that these employees, by leaving the plant, did not intend thereby permanently to discontinue the normal employer-employee relationship, and that these employees were engaging in concerted action to secure a demand with respect to terms and conditions of employment. Whether or not this concerted action was authorized by the Union is, of course, immaterial in this connection. We find that the employees who participated in the walk-out remained employees within Section 2 (3) of the Act.1s We have noted that the respondent, in dealing with the employees engaged in the walk-out, and with the Union on and after Novem- ber 11, 1935, persisted in characterizing the employees as persons who had been discharged or quit and who were no longer employees of the respondent. At the same time the respondent sought, by notice and by individual solicitation, to procure such employees to return to work. Under these circumstances, it is evident that the respondent characterized them as persons who had been discharged or quit and as non-employees to demoralize them and to discourage their collective activity. We find, accordingly, that the respondent, in purporting to treat such employees as non-employees, interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7, thereby engaging in unfair labor practices within the meaning of Section 8 (1) of the Act.19 As we have found, the respondent, on November 18, notified the participants in the walk-out that their reinstatement would be con- ditioned upon their first giving "satisfactory individual assurance to us that the stoppage of work as now occasioned, under the cir- cumstances described, will not re-occur in the future." Thus the respondent conditioned reinstatement upon individual agreement not 18 N. L. R B. v The Good Coal Company, 310 U. S. 630 , enf'g Matter of The Good Coal Company and United Mine Workers, District 19, 12 N. L. R. B 136. Since the walk-out occurred "because of, or in connection with any current labor dispute," par- ticipants therein remained employees within Section 2 (3) whether or not the walk-out be characterized as a strike. Moreover, we find that it did constitute a strike within the meaning of Section 13 of the Act. This section reads as follows : "Nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike " 19 Matter of American Manufacturing Concern and Local No. 6. Organized Furniture Workers, 7 N. L. R. B. 753. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to engage again in certain concerted activity which the employees had engaged in for the purposes of collective bargaining and other mutual aid or protection. The respondent apparently contends that the condition which it imposed on November 18 upon reinstatement was lawful, allegedly because the walk-out disrupted the collective negotiations pending on November 11 between the respondent and the Union with re- spect to the two-mule issue. We cannot agree with this contention. The respondent's condition was clearly discriminatory and in dis- couragement of concerted activity protected by the Act.20 The con- dition was therefore unlawful whether or not the walk-out inter- rupted collective negotiations between the respondent and the Union. Besides, the respondent can hardly seek refuge in its obligation to bargain collectively since, as noted above, it did not fulfill that ob- ligation. Moreover, the respondent cannot claim that the walk-out disrupted negotiations, for the Union sought to bargain during the course of the walk-out, and in respect to the labor dispute of which the walk-out was a part.21 The respondent's contention does not gain weight by its assertion that the spinners' determination to strike and the walk-out contravened the desires of the Union. Sub- divisions (1) and (3) of Section 8 proscribe discouragement of con- certed activity whether such activity is or is not sanctioned by a majority representative. Furthermore, the assertion, at least with respect to events before and on November 18, is unsupported by the record. We find, accordingly, that on and after November 18, 1935, the respondent, by imposing its condition upon reinstatement, discrimi- nated in regard to hire and tenure and terms and conditions of em- ployment thereby discouraging membership in a labor organization, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 20 Matter of Carlisle Lumber Company and Lumber & Sawmill Workers' Union, Local 2511, Onalaska, Washington and Associated Employees of Onalaska, Inc, Intervener, 2 N. L. R. B. 248, enf'd N. L. R. B. v. Carlisle Lumber Company, 94 F. (2d) 138 (C. C. A. 10), cert. denied, 304 U. S. 575 ; Matter of American Manufacturing Company; Company Union of the American Manufacturing Company; the Collective Bargaining Committee of the Brooklyn Plant of the American Manufacturing Company and Textile Workers' Orvanizing Committee, 0. I. 0., 5 N. L. R. B. 443, mod, and enf'd, N. L. R. B. v. American Manufac- turing Company, 106 F. (2d) 61 (C C. A. 2), 60 S. Ct. 612 21 The existence of a labor dispute does not excuse the employer 's obligation to bargain. N. L. R. B. v. Biles-Coleman, 98 F. (2d ) 18 (C. C. A. 9), enf'g Matter of Biles -Coleman and Puget Sound District Council of Lumber and Sawmill Workers, 4 N. L. R. B. 679 ; Black Diamond Corp. v. N. L. It. B., 94 F. (2d) 875 (C. C. A. 2), cert. denied 304 U S. 579, enf'g Matter of Black Diamond Steamship Corporation and Marine Engineers Beneficial Association, Local No. 33, 3 N. L R. B. 84; Jeffery-DeWitt Insulator Co. v. N. L. R. B„ 91 F. (2d ) 134 (C. C. A. 4), cert. denied 302 U S. 731, enf'g Matter of Jeffery-DeWitt Insulator Company and Local No. 455, United Brick and Clay Workers of America, 1 N. L. R B. 618. WASHOUGAL WOOLEN MILLS 19 Upon the basis of this record we conclude that the walk-out was caused and prolonged by the respondent's unfair labor practices. The respondent's unlawful treatment of Holland, Darling, and Schaffer in purporting to discharge them, characterizing them as per- sons who had quit their employment, and causing them to be paid off induced the other employees to join the walk-out. The reasonable inference is that the respondent's similarly unlawful treatment of other employees prolonged the walk-out. Moreover, the respondent's imposition of a discriminatory condition to reinstatement on and after November 18, and its unlawful refusal to bargain on November 18 and December 12, clearly had the effect of prolonging the walk- out. We find that the walk-out commencing November 11 was caused and prolonged by unfair labor practices of the respondent. The 22 employees, named in Appendix "A," made various applica- tions for reinstatement, collectively or individually, and despite such application or applications were not given reinstatement to their former or substantially equivalent employment. Since the walk-out was caused and prolonged by unfair labor practices, these employees were entitled upon application to their former or substantially equivalent positions.22 The failure of the respondent to reinstate these employees named in Appendix "A" to the positions to which they were entitled, by displacing persons hired after the commence- ment of the unfair labor practices causing or prolonging the walk-out if necessary, in effect and in result discriminated, and constituted a discrimination concerning hire and tenure of employment against such employees. Such discrimination discourages union membership. We find that by the foregoing refusal to reinstate the employees listed in Appendix "A" the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act, and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.23 22 Matter of Jeffery-DeWitt Insulator Company and Local No . 455, United Brick and Clay Workers of America, 1 N. L. R. B. 618, enf'd Jeffery-DeWitt Insulator Company v. N. L. R. B , 91 F. (2d) 134 (C. C. A. 4), cert. denied, 302 U. S. 731; N. L. R. B. v. Remington Rand, Inc., 94 F. (2d) 862 (C. C. A. 2^, cert denied, 304 U. S 576, enf'g Matter of Rem- tngton Rand, Inc. and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N. L. R. B. 626. 23 Black Diamond Steamship Corp. v. N. L. R. B., 94 F. (2d) 875 (C. C. A. 2), cert. denied, 304 U. S. 579, enf'g Matter of Black Diamond Steamship Corp . and Marine Engi- neers' Beneficial Association, Local No. 33, 3 N. L. R. B. 84; N. L. R. B. v. American Manu- facturing Company, 106 F. (2d) 61 (C. C. A. 2 ), 60 S. Ct. 616, enf'g as mod Matter of American Manufacturing Company; Company Union of the American Manufacturing Com- pany; the Collective Bargaining Committee of the Brooklyn Plant of the American Manu- facturing Company and Textile Workers' Organizing Committee, C. 1. 0., 5 N. L. R. B. 443, Matter of Western Felt Works, a corporation and Textile Workers Organizing Committee, Western Felt Local, 10 N. L. R B. 407; Matter of McKaig-Hatch, Inc. and Amalgamated Association of Iron, Steel and Tin Workers of North America , 10 N L. R. B. 33. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent contends that by its purported acceptance of the Union's resolution of December 23; "all charges . . . were fully settled, released and dismissed and an accord and satisfaction was reached." No agent of the Board participated in the purported set- tlement and it is clear that the Board is not bound by it, whatever its terms. The question is, however, whether in order to effectuate the policies of the Act, the Board deems it advisable as a discretionary matter to dismiss the proceeding pursuant to the purported settlement. Under the circumstances of the present case, we are convinced that the policies of the Act would not be effectuated by dismissing the com- plaint. The respondent's contention is overruled.24 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States, and have led and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act 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 on August 20, November 7, November 18, and December 12, 1935, refused to bargain with the Union. Our usual order in such cases would be that the respondent bargain on request with the Union. The Union however did not file charges, enter an appearance in the case, or otherwise indicate that it would, pursuant to the condition stated in our order in such cases, request the respondent for collective bargaining negotiations. Under these circumstances we shall merely order the respondent to cease and desist from refusing to bargain collectively on request with the duly designated exclusive representative of the employees in the appropriate unit. 24 Matter of Horace G. Prettyman and Arthur J. Wiltse, co -partners, doing business as the Ann Arbor Press and International Typographical Union, 12 N L R B. 640 ; Matter of Ingram Manufacturing Company and Textile Workers Organizing Committee, 5 N L. R. B 908; Matter of McKaig-Hatch Inc and Amalgamated Association of Iron, Steel and Tin Workers of North America, 10 N L. R. B 33. By Section 10 (a) of the Act, the Board's power to prevent unfair labor practices "shall be exclusive, and shall not be af- fected by any other means of adjustment or prevention that has been or may be established by agreement, code, law or otherwise." WASHOUGAL WOOLEN MILLS 21 We have found that the employees listed in Appendix "A" ceased work as a consequence of a current labor dispute, that unfair labor practices occurred which had the effect of causing and prolonging a walk-out, and that the respondent discriminated against them in regard to their hire and tenure and terms and. conditions of employ- ment by imposing the unlawful condition to their reinstatement and by rejecting collective and individual applications for reinstatement made on their behalf. We shall, therefore, order the respondent to offer reinstatement to their former or substantially equivalent positions to all employees listed in Appendix "A" and to give them back pay. The offer of reinstatement shall be `without prejudice to their senior- ity and other rights and privileges. Such reinstatement shall be effected in the following manner : All persons hired after November 11, the date of the commencement of the walk-out, shall be dismissed, if necessary to provide employment for those to be offered reinstate- ment. If, even after this is done, there is not, by reason of a reduction in the force of employees needed, 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 sys- tem of seniority to such extent as has heretofore 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 preferential list prepared in accord- ance with the principles set forth in the previous sentence and shall, thereafter, in accordance with such list, be reemployed in their former or substantially equivalent positions as such employment becomes available and before other persons are hired for such work. The record shows that Local 127 filed its charge on June 22, 1937, more than 18 months after the commission of the unfair labor prac- tices and the purported settlement of the labor dispute on December 23, 1935. In view of this circumstance we shall not direct back pay in our usual manner but we shall order the respondent to make whole each of the employees ordered to be offered reinstatement, excluding Louis Schellig and James Blackburn, by payment to each of them of an amount equal to that which lie would have earned as wages during the period from June 22, 1937, the date on which charges were filed with the Regional Director,25 to the date of the offer of reinstatement 25 Matter of Inland Lime and Stone Company and Quarry Workers International Union of North America, Branch No. 259 , 8 N. L. R. B. 944 ; cf Matter of Crowe Coal Company and United Mine Workers of America, District No 14i, 9 N. L. R. B. 1149, enf'd N L R. B. Y. Crowe Coal Company, 104 F (2d) 633 (C C A 8) ; Matter of Colorado Milling d Bieiator Company and Denver Trades and Labor Assembly, 11 N L, R B 66 28•.;0 :-4-41-%ol. 2.-3 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or placement on the preferential list, less his net earnings 26 during that period, in accordance with the principles set forth in the preced- ing paragraphs. Since it was alleged for the first time on February 21, 1938, by way of an amendment to the complaint, that the respond- ent discriminated against Schellig and Blackburn, we shall limit their back pay to the period beginning February 21, 1938. Even if the respondent had not imposed the unlawful condition to reinstatement and if we were to assume that the respondent's denial of reinstatement to the employees listed in Appendix "A" when they made individual and collective applications did not constitute an unfair labor practice we would, nevertheless, under the circumstances, award reinstatement and back pay to these employees in the manner set forth above. The walk-out having been caused and prolonged by unfair labor practices, any refusal by the respondent of a request made by the employees for reinstatement was at all times subject to such order as the Board in executing the purposes and the policies of the Act might make, directing the respondent to reinstate said em- ployees, to dismiss persons hired since, and not in its employ at the commencement of the walk-out for the purpose of making positions available for such reinstatement, and to compensate such employees for any loss of wages sustained by virtue of the refusa1.27 Since the record does not support the allegations that the respondent caused the Union to split into factions, we shall dismiss this part of the complaint. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Textile Workers Union of America, Local 127, and United Textile Workers of America, Local 2077, are labor organizations, within the meaning of Section 2 (5) of the Act. 2i 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 «ould not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union, Local 5590, 8 N. L R. B 440 Monies received for work performed upon Federal , State, county, municipal, or other work -relief projects are not considered as earnings, but as provided below in the Order , shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal , or other government or governments which supplied the funds for said work -relief projects . Matter of Republic Steel Corpora- tion and Steel Worlers Organizing Committee , 9 N L. R . B 219, enf'd- Republic Steel Corporation et al v N L R B. ct at, 310 U S 655 21 Black Diamond Steamship Corp . v. N. L. R. B., 94 F. (2d) 875, cert den 58 S. Ct. 1044, enf'g Matter of Black Diamond Steamship Corporation and Marine Engineers' Beneficial Association, Local No. 33, 3 N L. R B 84; Matter of McKaiq -Hatch, Inc. and Amalgam- ated Association of Iron, Steel, and Tin 111orkeis of North America, Local No. 1139, 10 N L R B . 33; Matter of Western Felt Worlls, a corporation and Textile Workers Organ- izing Committee, Western Felt Local, 10 N. L. R. B. 407. WASHOUGAL WOOLEN MILLS 23 2. All the respondent's employees engaged in the production of woolen cloth, excluding office and supervisory employees, constitute a unit appropriate for the purpose of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. United Textile Workers of America, Local 2077, from August 1 through December 23, 1935, was the exclusive representative of all the emiiployees in Such unit for the purpose of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. The respondent, by refusing to bargain collectively on August 15, November 7, November 18, and December 12, 1935, with United Textile Workers of America, Local 2077, as the exclusive representa- tive of its employees in such unit, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. The respondent, by discriminating in regard to the hire and tenure of employment of the employees listed in Appendix "A," thereby discouraging membership in United Textile Workers of America, Local 2077, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER On 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 respond- ent, Washougal Woolen Mills, Washougal, Washington, and its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in any labor organization of its employees, by refusing to reinstate any of its employees, by imposing an unlawful condition to reinstatement, or in any other manner dis- criminating in regard to their hire and tenure of employment or any term or condition of their employment; (b) Refusing to bargain collectively with the representative or representatives of its employees designated or selected by a majority of such employees within the appropriate bargaining unit in respect to rates of pay, wages, hours of employment, or other conditions of employment ; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD join, or assist labor organizations , to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection , as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the National Labor Relations Act: (a) Offer to the employees listed in Appendix "A" immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and privi- leges, in the manner set forth in the section entitled "The remedy" above, placing those employees for whom employment is not immedi- ately available upon a preferential list in the manner set forth in said section , and thereafter , in said manner, offer them employment as it becomes available; (b) Make whole the employees listed in Appendix "A," excluding Scliellig and Blackburn , for any losses of pay they may have suffered by reason of the respondent's discrimination against them , by pay- ment to each of them of an amount equal to that which he would normally have earned as wages during the period from June 22, 1937, to the date of the offer of reinstatement or placement upon a prefer- ential list, less his net earnings 28 during that period ; provided that the respondent shall deduct from the back pay due each of said em= ployees a sum equal to that received by said employee for work done in Federal , State, county, municipal , or other work-relief projects during the period for which back pay is due him under this Order, and shall pay any such amount deducted to the appropriate fiscal agency of the Federal , State, county, municipal , or other government or governments which supplied the funds for said work -relief projects; (c) Make whole Louis Schellig and James Blackburn for any loss of pay they may have suffered by reason of respondent's discrimina- tion against them, by payment to each of them of an amount equal to that which he would normally have earned as wages during the period from February 21, 1938, to the date of the offer of reinstate- ment or placement upon a preferential list, less his net earnings 28• during that period; provided that the respondent shall deduct from the back pay due each of said employees a sum equal to that received' by said employee for work done in Federal , State, county, municipal, or other work-relief projects during the period for which back pay is due him under this Order, and shall pay any such amount deducted to the appropriate fiscal agency of the Federal , State, county , >> nunic- ipal, or other government or governments which supplied the fends for said work-relief projects; 28 See footnote 26, supra. WASHOUGAL WOOLEN MILLS 25 (d) Post immediately notices in conspicuous places throughout its plant in Washougal, Washington, and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order, and (2) that it will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; (e) Notify the Regional Director for the Nineteenth 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 that the respondent caused United Textile Workers of America, Local 2077, to 'split into factions, be, and it hereby is, dismissed. APPENDIX A Milo Baldwin James Blackburn Ralph Dahl Clarence Darling Peter Depoe Sam Depoe Glen Holland Roy Jenkins Glen Jones Russell Jones Barney Kaiser Frank Martinjack Louis Meyer Herman Munch Ray Nallion Walter Newman Ed Pederson Louis Schellig Carl Scherph Paul Shepherd Ray White Willis White MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.