Hartland Tanning Co., Inc.

In the Matter of HARTLAND TANNING Co., INC. and NATIONAL LEATHER WORKERS ASSOCIATION , LOCAL No. 21, AFFILIATED WITH THE CON- GRESS OF INDUSTRIAL ORGANIZATIONS Case No. C-126-3.-Decided March 28, 1940 Leather Tanning Industry-Interference, Restraint, and Coercion: expressed opposition to labor organization, threats of retaliatory action: threat to remove plant if employees joined any union and later if employees joined national union ; inciting citizens of community to procure cessation of "outside" union activities and membership-Company-Dominated Union: domination of and in- terference with formation and administration ; support ; suggestion of revival of unaffiliated union when national union evinced interest in organizing plant; inducing citizens of community to encourage membership in ; refusal to rein- state employee because of activity in "outside" union as further preference for; discrimination in favor of : permitting collection of dues and posting of notices inside plant ; calling meeting of executive board of, as interference and control over affairs of ; disestablished as agency for collective bargaining-Discrimina- tion: discharge of employee for attempts to organize union ; refusal to reinstate employee because of activity for "outside" union by failing to recall him to work after lay-off ; charges of discriminatory lay-off, dismissed-Reinstatement Or- dered: employees discriminated against-Back Pay: awarded. Mr. Benjamin E. Gordon, for the Board. Mr. Charles J. Goldman, of Lynn, Mass., and Mr. Ralph M. Gold- stein, of Boston, Mass., for the respondent. i}Ir. Clayton Eames, of Skowhegan, Maine, for the Association. Mr. W. F. Regan, of Peabody, Mass., for Local No. 21 and the National. Mr. Paul S. Kuelthau, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by National Leather Workers Association, Local No. 21, herein called Local No. 21, the National Labor Relations Board, herein called the Board, by the Regional Director for the First Region (Boston, Massachusetts), 22 N. L. R. B., No. 2. 25 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issued its complaint, dated January 21, 1939,1 against Hartland Tan- ning Co., Inc., Hartland, Maine, herein called the respondent, alleg- ing that the respondent had engaged in and was engaging in, unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notices of hearing, were duly served upon the respondent, Local No. 21, Hartland Leather Workers Association, herein called the Association, a labor organization alleged in the complaint to be dominated by the respondent, and National Leather Workers Association, herein called the National, a labor organization which chartered Local No. 21. The complaint, as amended at the hearing,2 alleged in substance (1) that the respondent, on or about June 1, 1937, discharged Laurence Waldron and thereafter refused to reinstate him because he was active in attempting to organize a labor organization and because he engaged in concerted activities with other employees for their .mutual aid and protection; (2) that the respondent discharged Lynn Dill on or about March 28, 1938, and thereafter refused to reinstate him, because of his membership and activity in Local No. 21; (3) that the respondent interfered with the administration of the Associa- tion on or about August 8, 1937, caused the Association to be revived and reorganized on or about November 15, 1937, and thereafter dom- inated and interfered with its administration and contributed finan- cial and other support to it; and (4) that the respondent by the afore-mentioned acts, by threatening to move from Hartland if its employees joined a union and more particularly Local No. 21, and by statements and speeches' discouraging membership in any union, 'interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Thereafter the respondent filed a Motion for Specifications, a Special Appearance, a Motion to Dismiss Complaint, and its Answer. The respondent's answer as amended 3 admitted certain facts covering its incorporation and business, admitted that the respondent was en- 1 Prior to this time , a complaint dated January 19, 1939, had been issued by the Regional Director and served on the parties . It was withdrawn by the Regional Director by an order dated January 21, 1939. 2 At the close of the Board 's case, counsel for the Board moved to amend paragraph No. 9 of the complaint to conform to the proof. Counsel for the respondent objected and the Trial Examiner reserved ruling. Later in the hearing, counsel for the respondent withdrew his objection and the Trial Examiner granted the motion. 8 At the beginning of the hearing, the respondent moved to amend its answer to admit that it was subject to the jurisdiction of the Board and to admit certain facts as to its business and incorporation , which had been denied in its answer as originally filed The Trial Examiner granted this motion. HARTLAND TANNING CO., INC. 27 gaged in commerce within the meaning of the Act, but denied that it had engaged in the unfair labor practices alleged in the complaint. Pursuant to notice, a hearing was held in Hartland, Maine, on January 30 and 31, and on February 1, 2, 3, 6, 7, 8, 9, 10, and 11, 1939, before Waldo C. Holden, the Trial Examiner duly designated by the Board. At the beginning of the hearing, the Trial Examiner granted the motion of the Association to intervene but confined the interven- tion to the 8 (2) allegations of the complaint. The Board, the respondent, the Association, Local No. 21, and the National were represented by counsel and participated in the hearing. Full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the beginning of the hearing the Trial Examiner denied the respondent's Motion for Specifications and its Motion to Dismiss. These rulings are hereby affirmed. The respondent waived its Spe- cial Appearance by participation in the hearing. Near the close of the respondent's case, counsel for the respondent moved to amend the respondent's answer by changing paragraph No. 5 thereof which dealt with the discharge and refusal to reemploy Waldron and Dill. The Trial Examiner denied this motion. His ruling is hereby af- firmed. During the course of the hearing the Trial Examiner ruled on other 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 April 20, 1939, the Trial Examiner filed his Intermediate Report, copies of which were duly served on the parties. The Trial Examiner found that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1), (2), and (3) and Sec- tion 2 (6) and (7) of the Act and recommended that the respondent cease and desist therefrom, disestablish and withdraw recognition from the Association as the representative of any of its employees, and reinstate Laurence Waldron and Lynn Dill with back pay from the date of the discrimination against them. On May 15, 1939, the respondent filed exceptions to the Inter- mediate Report. Permission to file briefs was granted to all parties but no briefs were filed. Upon due notice, a hearing for the purpose of oral' argument before the Board in Washington, D. C., was sched- uled for November 28, 1939, but counsel did not appear and no argument was held. The Board has considered the respondent's .exceptions to the Intermediate Report and, in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. -- 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, Hartland Tanning Co., Inc., is a Maine corporation .having its principal office in Peabody, Massachusetts. It is engaged in processing heavy hides at Hartland, Maine. In excess of 50 per cent of the hides processed by the respondent are shipped to, it at Hartland, Maine, from points outside Maine, and in excess" of 50 per cent of the hides finished by the respondent are shipped to points outside Maine. The hides processed by the respondent yearly are worth in excess of $250,000 but are not its property since all of the respondent's work is done on hides owned by others and sent to it for processing. The respondent's annual gross receipts are in excess of $150,000.. The respondent admits that it is engaged in interstate commerce, within the meaning of the Act. II., THE ORGANIZATIONS INVOLVED National Leather Workers Association is a labor organization affiliated with the Congress of Industrial Organizations, herein called the C. I. 0., admitting tannery employees to membership. It chartered National Leather Workers Association, Local No. 21, a labor organization admitting leather workers employed by the respondent to membership: Hartland Leather Workers Association is an unaffiliated labor organization admitting employees of the respondent to membership. It was formerly known as Hartland Leather Workers Association No. 16. III. THE UNFAIR LABOR PRACTICES A. Background Max Kirstein, president and treasurer of the respondent, is also president and treasurer of Irving Tanning Co. and owns and controls both corporations.' For some time prior to the organization of the respondent, Irving Tanning Co. had been engaged in tanning sheep- skins in Peabody, Massachusetts. In 1936 Irving. Tanning Co. started making 'splits 4 from cow hides on a small scale at its plant in Pea- body. This experience showed that splits could be manufactured more profitably if the maker of the splits also tanned the hide. Since there were no facilities for tanning cattle hides in the Irving Tanning 4 A split is made by dividing a hide into two or more thicknesses HARTLAND TANNING CO., INC. 29 Co.'s plant, Kirstein became interested in finding a tannery. In the latter part of 1936, the mills at Hartland, Maine, owned by Hartland Mills, Inc., came to Kirstein's attention. Hartland Mills, Inc., is a corporation organized by certain citizens of Hartland to hold title to the mills and to induce some industry to locate in Hartland. The mills had been vacant for 5 or 6 years prior to the advent of the respondent and during that period there had been much unemployment in Hartland, the only other industry being a small canning company which operated seasonally. After some negotiation, Kirstein signed a contract with Hartland Mills, Inc., by which the latter agreed to repair the buildings and Kirstein agreed to begin tanning operations in Hartland. The con- tract provided that Kirstein was to occupy the buildings rent free but was to pay 3 per cent of his pay roll to Hartland Mills, Inc., until the latter had been reimbursed for the repairs made. The respondent commenced operations in Hartland in March 1937. For some time after operations commenced, the 3 per cent paid to Hart- land Mills, Inc., was deducted from the wages of the employees, but that practice was abandoned in the summer of 1938. At about the time operations began in Hartland, Kirstein talked to Charles W. Chamouris, representative of Local No. 21 in Salem, Danvers, and Peabody, Massachusetts, and told him that Local No. 21 was forcing the manufacturers in those cities to move and that he was planning on moving to Hartland, Maine, where he would not have to pay rent, water, and taxes and where he would not have to tolerate organizations that would dictate policies and wages to him. Kirstein also told Chamouris on another occasion that there would be no labor organization in Hartland because that was too far away and Local No. 21 would not be able to go there. Kirstein denied talking to Chamouris about moving to Hartland. The Trial Examiner, who observed the witnesses, found that Kirstein told Chamouris he was moving to Hartland. We find that Kirstein made the statements recited above. Irving Tanning Co. closed its plant in Peabody in December 1938. and had not reopened -it at the time of the hearing. B. Chronology of events As stated above, the respondent commenced operations in Hart- land in March 1937. On April 29, 1937, Laurence Waldron started work for the respondent as a pickle trimmer. At that time Charles Jones 5 and Sylvio Landry were also working as pickle trimmers. After Waldron started work, he and Jones discussed the wages 5 Also referred to in the transcript of the hearing as Charles Ellis Jones and Ellis Jones 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paid by the respondent and decided to find out what was paid in other communities for similar work. Pursuant to this plan, they asked Osman, superintendent of the respondent's plant, for the wages paid in Peabody. Osman recited some wage rates and prom- ised to ascertain others on his next trip to Massachusetts. There- after, Osman gave further wage rates to Waldron and Jones. Waldron and Jones discussed the rates given them by Osman with other employees, among them Alvra Butters. Thereafter, Jones wrote Local No. 21 in Peabody, Massachusetts, for a list of the wage rates prevalent in Peabody, and such a list was sent to him. The list was discussed with Waldron and other employees, and it was decided to call a meeting of the employees to discuss the desirability of organizing a union. Laurence Waldron, Charles Jones, Lynn Dill, Harold Emery, and Alvra Butters were the leaders in this movement. A meeting of interested employees was held in the Firemen's Hall in Hartland toward the end of July 1937. It was decided that a union should be organized and a meeting for that purpose was arranged for August 1, 1937. , On August 1 Waldron and Jones were laid off. Despite the lay- offs, the meeting was held, the Association formed, and officers elected.6 Further meetings of the Association were held on August 6 and 8. At the August 8 meeting a committee, consisting of the officers of the Association and Goodwin Philbrick, was elected to confer with Kirstein. Since Kirstein was not in Hartland most of the time, the committee was directed to ask Ray McDonald, the respondent's office manager, to arrange for the committee to meet with Kirstein when he was in Hartland next. When the committee saw McDonald he said that he would try to arrange the meeting but that he knew Kirstein would be opposed to a union. McDonald did not testify at the hearing. During the following week, McDonald notified the Association's committee that Kirstein would meet them in the office of Perry Furbush,7 a local attorney. When the committee arrived at Fur- bush's office, they found in addition to Kirstein and Furbush, some of the, directors of Hartland Mills, Inc. After some preliminary remarks by Furbush, Kirstein took charge of the meeting. Accord- ing to Lynn Dill and Alvra Butters, Kirstein said among other things that he did not want a union and would not have one; that if a union was organized he would close the plant and go to Europe; that he knew the trouble had originated with the two men laid off 9 The following were elected officers • Alvra Butters, president ; Harold Emery, vice presi- dent ; Lynn Dill, recording and financial secretary and treasurer. The Association was then known as Hartland Leather Workers Association No. 16 ° Also referred to in the transcript of the hearing as Furbish HARTLAND TANNING Co., INC. 31 in the pickle-trimming department and- that one of them would never return to work. Harold Emery corroborated that testimony to some extent. Kirstein denied that he had made the statements attributed to him by Dill and Butters but could remember nothing of what happened at the meeting except that the case of one man working 7 hours without lunch was mentioned. The other wit- nesses called by the respondent denied that Kirstein made the state- ments attributed to him by Dill and Butters but offered no satis- factory account of what was said. We do not credit their testimony or that of Kirstein. We find, in accordance with the finding of the Trial Examiner, who from his observation of the demeanor of the witnesses had an opportunity to form a trustworthy opinion of their credibility, that at the meeting in Furbush's office Kirstein expressed his opposition to unions and threatened to cease opera- tions in Hartland if the employees persisted in their attempt to form a union. We find further that Kirstein made the statement attributed to him by Dill and Butters that the trouble had originated with the two men laid off in the pickle-trimming department and that one of them would never return to work. After the conference discussed above, the Association became dor- mant and held no further meetings. On or about September 7, 1937, Charles Jones, who had been laid off with Laurence Waldron on August 1, was reinstated by the respondent after Marguerite Burton, a business woman in Hartland, had interceded with Kirstein in his behalf. Waldron was never reinstated although he applied on various occasions. His discharge and the respondent's refusal to reinstate him will be discussed further below. During the fall of 1937 Joseph Massidda, a representative of the National, came to Lynn Dill's home. Massidda told Dill that lie would like to organize a C. I. O. union in Hartland. Dill replied "that there would not be any chance for a C. I. O..union in this town because there was not a chance for a local union; that that had been broken up." Massidda made no attempt to organize the employees. ' Sometime later, Furbush approached Harold Emery and asked him why the employees did not organize a local union and have a sick benefit. Emery told Furbush that Kirstein did not want a union, to which Furbush replied, "Well, now he does." Emery discussed Fur- bush's suggestion with several employees of the respondent, among them Dill and Butters, and a meeting was held in Furbush's office. Furbush again mentioned a local union and said such an organiza- tion would help the respondent sell its leather. When the question of paying sick benefits out of the contemplated dues of 10 cents per; week was raised, Furbush said that they might find $200 in the trek's-' ury but refused to say who the donor would be. Furbush also of 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fered to draw up some bylaws for the union, and about 3 weeks later read some bylaws to it group of employees brought to his office at his request by Emery. On January 10, 1938, the Association was reorganized and a new election of officers was held.' Thereafter the Association held sev- eral meetings, one of which, on February 21, 1938, was addressed by W. F. Regan, counsel for Local No. 21, and Daniel J. Boyle, secre- tary-treasurer of the National. At the close of that meeting, 45 of the respondent's employees, constituting a majority, signed applica- tions for membership in the National.0 On February 24 a citizens' meeting was held in the town hall in Hartland. This meeting was called by John Connelly, one of the selectmen, pursuant to a request from Marguerite Burton, a business woman in Hartland, and was attended by a large number of local citizens. Before calling the meeting, Connelly contacted Kirstein and secured his promise to attend. Connelly offered no explanation for calling the meeting except that there was some "trouble" at the tannery which he did not understand. The meeting opened without Kirstein and Connelly was sent to get him. The testimony as to Kirstein's statements after he arrived is conflicting. Ernest Duncan, a resident of Hartland employed in a mill in Pittsfield as night overseer and a member of the C. 10. there, testified that Kirstein said he had lost faith in the town of Hartland, that he had been, promised no labor trouble if he located there,10 and that he had had nothing but trouble since operations had begun in Hartland. According to Duncan, Kirstein threatened to move the plant if the employees persisted in joining the C. I. O. and said he would not bring another hide to Hartland until he was sure there would be no C. I. O. Duncan's testimony was corroborated in some measure by Richard Picken, a resident of Hartland who had quit his job with the respondent. Kirstein denied making the state- ments attributed to him by Duncan but gave no satisfactory account of what took place at the meeting at which he spent 2 hours. Kir- stein's testimony was generally unreliable and we do not credit it. Other witnesses called by the, respondent also denied that Kirstein made the statements attributed to him by Duncan. Their testimony was not convincing. Our conclusion as to the testimony on this meet- ing is supported by the findings of the Trial Examiner who saw the ° The old officers were reelected ; in addition, Walton Skinner became financial secretary, and an executive committee was elected . The "No 16" was eliminated ' from the Associa- tion's name by common consent and without formal action. ° The record shows that at least some of the employees applied because of threatened legal action against Kirstein by Local No . 21 which Regan claimed would compel Kirstein to bring leather workers from Peabody to staff the plant. 1° The advertisement for the mills which Kirstein saw before coming to Hartland stated that Hartland had "NEVER had a strike or labor troubles." HARTLAND TANNING Co., INC. 33 witnesses and observed their demeanor on the witness stand. We find from all the testimony about this meeting that Kirstein spoke substan- tially as testified to by Duncan, indicating his opposition to the C. I. 0. and its affiliate, the National, and threatening to close the plant in Hartland if his employees consummated their affiliation with those organizations and thereby required the respondent to bargain with them. The citizens' meeting lasted more than 2 hours and at its close a committee was appointed to talk to some of the respondent's em- ployees. Before the citizens' meeting ended, Lloyd Hubbard, an em- ployee of the telephone company in Hartland, was dispatched to the mill to get Alvra Butters, the president of the Association, and his executive committee. It is noteworthy that Kirstein, according to his own testimony, suggested this procedure by saying that he did not want the employees called to the meeting during working hours but that the citizens could see them after working hours if they wished. Butters was busy when Hubbard arrived at the plant so Hubbard returned to the committee with Harold Emery, the Association's vice president, and Lynn Dill, its recording secretary and treasurer. As they entered the room either Ralph Hamilton, local druggist, ,or Selectman Lancey said that they were afraid the town would lose the tannery if the employees joined the C. I. 0. Emery replied that the employees had only applied for membership and that they were not yet members. The committee then inquired whether or not the employees could withdraw. Emery replied that the employees would hold a meeting to decide what to do. The next evening a meeting of the Association Was held. Emery reported on the meeting he and Dill had had with the citizens' com- mittee and the employees voted 67 to' 1 to withdraw from the Na= tional and so, notified it by a letter dated February 26. Within a few days after the citizens' meeting, a group of employees, met with Kirstein in his office in the plant. No explanation of the calling of this meeting was offered at the hearing.' According Yo Lynn Dill, Kirstein opened the meeting by stating that he did not know whether or not he was breaking the law, but he wished to talk to them, and then went on to say that if the employees joined the C. I. 0. he could not give them work but that he could give them work if they did not join. Dill further testified that since he had been informed earlier that day that his shaving machine was to be moved he asked about that and was interrupted by Loignon, the re- spondent's office manager, who asked how large a truck Kirstein wanted the next morning, to which Kirstein replied that he wanted one large enough to move the shaving machine and another machine. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dill then inquired whether that meant he was discharged. Accord- ing to Dill, Kirstein replied in the affirmative, although Kirstein testi- . fled that he replied in the negative. Charles Jones then asked Kir- stein whether the people would have work if they did not join the C. I. 0. Kirstein did not reply directly but asked Dill if he had signed a C. I. 0. card. Dill admitted he had but maintained that that was his own affair. Kirstein then said that the machine would .not be moved and that Dill should come to work the next morning. At that time, the other employees left the meeting, leaving Dill, Loignori,, a,nd Kirstein. ; Dill said that he did not want to go on work- ing if the respondent considered his work unsatisfactory. Kirstein said that Dill's work was satisfactory but asked if a union organizer had not called at Dill's home the previous fall. Dill admitted that one had and Kirstein remarked, "Didn't you know that you shouldn't have them in your house, that they take the bread right out of your mouth?" Kirstein did not deny any of the above statements which were attributed to hiin by Dill. He sought to explain the projected moving of the shaving machine by saying that it was the spare machine that Was being moved and that it was needed in Peabody. When it was pointed out to him on cross-examination that the Peabody plant was not operating at that time, he said he was considering opening it. Kirstein'al'so testified that he changed his plan to move the machine because Charles Jones asked him to leave it in Hartland. Kirstein was forced to admit that all three shaving machines were in use prior to that time, the foreman being engaged in the operation of the third or spare machine. Kirstein's explanations are entirely implausible and unconvincing. Although Elsie McCormack, an employee who was present at- this conference, testified that she could not recall the C. I. 0. being mentioned there, Francis Thomas, another employee, testified without contradiction that Kirstein said the employees had "knifed him in the back" by joining the C. I. 0. and James Seekins testified, that Kirstein said he was moving the, machine, because he could not depend on Hartland. The respondent's office manager, Loignon, did not testify about the meeting. We find, as did the Trial Examiner, that at the conference in Kir- stein's office at which the shaving machine was discussed, Kirstein expressed his antipathy toward the C. I. 0., threatened loss of work to the employees if they retained their membership in it, and staged the meeting in such manner as to indicate to those present that he was making good his threats to cease operations in Hartland. We further find that Kirstein chided Lynn Dill for,having a union organizer at his home. „ After the above-described meetings in February 1938, the Asso- ciation did not meet again until April 4, 1938, although it had met HARTLAND TANNING CO., INC. , 35 bi-weekly theretofore. At the April 4 meeting Dill and Butters re- signed from the Association. Also on April 4, 1938, Dill, who had been working for the respondent as a shaver since June 1937, was laid off. This lay-off and the re- spondent's subsequent failure to reemploy Dill are discussed further below. In May 1938 the Association requested the respondent to bargain with it and the respondent refused to do so until the Association was certified by the Board. Thereafter the Association held monthly ;-meetings, the notices for which were posted in the plant. The Asso- ciation also regularly collected its dues on pay day just inside the exit from the plant without objection .by the respondent., C. Domination and support of and interference with the Association The facts heretofore set forth show that the respondent dominated, interfered with, and contributed support to the Association. Initially this was evidenced by an attempt to impede the organization of the Association. Kirstein's remarks at the meeting, in Furbush's office in August 1937 clearly indicated to the Association, to the employees, and to the townspeople that the respondent did not want its employees to join any labor organization. The discharge of Waldron and the sub- sequent:refusal to reinstate him, which are discussed in detail below, were part of Kirstem's efforts to throttle the Association. That the respondent's actions were so construed by its employees is clear from the fact that thereafter the Association suspended all activities. Sub- sequently, when the National evinced an interest in the respondent's employees by sending Massidda to Hartland, the respondent changed its mind about the Association and attempted through Furbush to rejuvenate it. Although the respondent denied that Furbush was acting for it, such denials are not persuasive in view of Furbush's rep- resentation to Emery that Kirstein had changed his mind about the -Association and in the light of the fact that it was Kirstein himself who "fir§t'-called Furbush and the other directors of Hartland Mills, Inc., into the picture by requesting the Association's committee to meet with him in Furbush's office and thereafter intimidating both the employees and the townspeople by threatening to suspend opera- tions in Hartland. Kirstein's statements at the meeting in Furbush's office were a clear invitation to the directors of Hartland Mills, Inc., to intervene to prevent the organization of a union by the employees. Kirstein's statements at the citizens' meeting on February 21, 1938, which have been recited above,. were merely a. continuation and further indication of the respondent's attitude `toward truly inde- pendent labor organizations. As has been pointed out above,.Kir- stein at that meeting clearly showed his hostility toward the C. I. 0. 36 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD and sought to direct his employees away from that organization and its affiliates and into an organization which he could more easily control. Although Kirstein testified that he objected to the citizens' interfering with the employees, by his own admission, he merely did not want them to talk to the employees during working hours, but he had no objection to their doing so after working hours. Indeed, his presence at that meeting and his remarks there show that he endorsed such interference. Not content with this activity on his part, Kirstein soon thereafter arranged a meeting with some of the employees in his office at which he again expressed his hostility to - the ' C. I. O. and appeared to be carrying out his threat to move from Hartland by moving one of the shaving machines. As we have found above, the talk of moving the machines was obviously intended to impress upon the employees present that the respondent was seri- ous in its threat to move. The respondent's preference for the Association is further shown by its refusal to reinstate Dill after his lay-off on April 4, 1938, and after he resigned from the Association, which will be discussed below. Thereafter the respondent permitted the Association to collect dues inside the,plant and to post notices in the plant. When the respond- ent's treatment of the Association is contrasted with its opposition to the C. I. O. and its affiliate, the National, its domination and support, of, and interference with the Association become ap'pare`nt. The respondent's action of calling a meeting of the Association's executive board on January 23, 1939, after the issuance of the com- plaint in this matter, is further evidence of the respondent's inter- ference with and control over the affairs of the Association. On January 23, 1939' Loignon, the respondent's office manager, ap- proached James Seekins, financial secretary of the Association, and told him that there was to be a meeting of the Association's executive board in Kirstein's office and that he should inform the other mem- bers of the board. Loignon also told Harold Emery of this meeting. The meeting was attended by almost all the officers of the Association,' and by Loignon, Kirstein, and Goldman, the respondent's counsel. Goldman read the complaint issued by the Board's Regional Director and told the executive board that the Association should be repre- sented by counsel at the proceedings. The next evening the Associa- tion held a meeting, called by notices posted in the plant, and a committee was appointed to hire counsel. We find that the respondent dominated and interfered with the formation and administration of, and contributed support to the Association, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section .7 of the Act. HARTLAND TANNING CO., INC. 37 D. Discrimination in regard to hire and tenure of employment Laurence Waldron started work for the respondent on April 29, 1937, as a pickle trimmer. At that time Charles Jones and Sylvio Landry were the regular pickle trimmers but after Waldron had been employed for 2 weeks, he replaced Landry. Between April 29 and August 1 Waldron received two increases in pay of which he was notified by a slip in his pay envelope telling him that his work was satisfactory. On August 1, 1937, both Waldron and Jones were laid off. No pickle trimming was done in the plant during the week ending August 6. During the following weeks, including the week ending September 3, Sylvio Landry, Richard Robinson, and Charles Pelkie worked as pickle trimmers. During the week ending September 10 Charles Jones was reinstated after his sister-in-law, Marguerite Burton, a business woman in Hartland, had interceded with Kirstein. Thereafter Jones and Robinson worked regularly, and Charles Pelkie intermittently, at pickle trimming. After his lay-off Waldron returned to the plant seeking work every day or two. Sometimes he talked to Osman, the plant super- intendent, and was told that there was no work, while on other occasions he went into the plant and left after finding no hides in the trimming department. On one occasion when he went into the plant, Waldron found hides in the department. He, therefore, put on his apron, punched in, and put some hides on a table intending to start work on them. As he was doing this, Osman came in, and, seeing Waldron, told him there was no work, that the trimming would be done by himself (Osman) and another employee. A few days later Waldron met Osman as the latter was entering the plant and asked him if he (Waldron) was discharged. Osman replied, "Yes, you are, so far as I know." A week or two after talking to Osman, Waldron met Kirstein on the street, and asked to talk to him. Kirstein took Waldron into his office and Waldron inquired why he was not working. Accord- ing to Waldron, Kirstein replied that all the "trouble" had started in the pickle-trimming department and that he would not hire Waldron if he needed a man and Waldron was "the last man on earth." Kir- stein denied making any such statement and testified that he was much surprised to learn that Waldron was not working; that he then consulted Osman, returned, and asked Waldron whether the latter thought he knew him (Kirstein) well enough to be calling him vile names. Kirstein further testified that Waldron, after much hesitation, finally replied that he sometimes said things he did not mean when he was intoxicated, and that he (Kirstein) then told Waldron that there was no work at that time but that he should return later. 283033-41-vol. 22-4 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Several witnesses testified that Waldron's reputation for truth and veracity was bad. On the other hand, the respondent, in, its answer, alleged that Waldron was not reinstated because he was "incompe- tent, inefficient, and undependable" and had never applied for rein- statement. Near the close of the hearing, the respondent sought to change its answer to allege that Waldron was not reinstated because of the vile and derogatory remarks about Kirstein and because he was frequently intoxicated. It is reasonable to assume that had the conversation between Kirstein and Waldron taken place as Kir- stein testified, the respondent's answer, which was signed and sworn to by Kirstein, would have so alleged originally. Because of the conflicting testimony about that meeting, we make no finding as to what was said there. Irrespective of what was said at the conference between Kirstein and Waldron, it is clear that Waldron was discharged because of his part in the organization of the Association. Waldron and Jones began the agitation for higher wages and for a labor organization. Both were laid off on the day that the first meeting of the employees to form an organization was held. Thereafter, Kirstein, at the meeting in Furbush's office, said that the "trouble" had started in the pickle-trimming department and that one of the employees laid off there would never return to work. Since Jones was. reinstated by the respondent in September, that statement could only refer to Waldron. When that statement is considered in conjunction with the other remarks by Kirstein at the meeting in Furbush's office, which have been set forth above, it is clear that Waldron's discharge was part of the respondent's campaign to throttle the Association. The respondent's answer asserted that Waldron was laid off with other employees and not reinstated thereafter because he was "in- competent, inefficient, and undependable" and because the respondent had never been requested to reinstate him. Neither defense is valid. The respondent produced no evidence as to the quality of Waldron's work and he ,received two -increases in pay after`he'was hired by the respondent on April 29, 1937, being told each time that his work was satisfactory. As has been pointed out above, Waldron testified that he applied for reinstatement several times and was finally told by Osman, his foreman, that he had been discharged. Osman did not testify at the hearing. We find that Waldron applied for work several times after his lay-off and that Osman refused to reemploy him and finally told him he was discharged. Although it is true that no pickle trimming was done during the week succeeding the lay-off of Waldron and Jones, such work was available during the following week and the refusal to reemploy Waldron at that time was tanta- mount to a discharge. HARTLAND TANNING CO., INC. 39 On the last day of the hearing in this matter the respondent sought to amend its answer to allege that Waldron had not been reemployed because of the remarks he made about Kirstein and because he drank to excess. That that defense was not raised until the last day of the hearing indicates that it was an afterthought. Furthermore, although the evidence showed that Waldron drank a good deal, there was no evidence that his work was unsatisfactory on that or any other account. The name-calling incident occurred on May 15, 1937, and Waldron was employed thereafter. The fact that Osman, who according to Kirstein discharged Waldron, was not called to testify casts grave doubt upon the validity of the re- spondent's defense. We find that by discharging and refusing to reinstate Laurence Waldron in August 1937, the respondent discriminated in regard to his' hire and tenure of employment, thereby discouraging member- ship 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. Lynn Dill started work for the respondent on May 3, 1937, as a common laborer. After 1 month he was put on the shaving machine, a skilled job, and thereafter received two raises in pay. Dill worked steadily for the respondent until April 4, 1938, at which time he and the other shavers employed by `the respondent were laid off. Prior to that time, Dill and Fred Libby had worked regularly, and Leroy Hatch, intermittently, at shaving. No shavers were employed by the respondent after the April 4 lay-off until the week ending April 30, 1938. During, that week Libby and Hatch were reemployed and thereafter were the regular shavers although six other employees worked occasionally at shaving. At the time of the hearing the respondent employed six regular shavers. Dill testified that he returned to the plant on April 9, 1938, to ,get his pay; that he then asked his foreman, Leo Kacherian, when he could return to work, and that Kacherian r',eplied,that he (Dill) was indefinitely. , laid off. Kacherian testified' that he said nothing to Dill to indicate to him that he should not return to work. Dill did not return seeking work thereafter. Dill's prominence in the organization of the Association in August 1937, and in the proposed affiliation with the National and the C. I. O. in February 1938, is undisputed. Moreover he resigned from the Association on April 4, 1938. Kirstein's opposition to the National is amply illustrated by our previous findings. His antipathy to Dill is illustrated by the shaving-machine episode and the statements made to Dill at that time, both of which are also dis- cussed above. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The allegation of the respondent's answer that Dill was not re- instated because he was "incompetent , inefficient , and undependable" is unsupported by any evidence . Indeed, it appears to have been abandoned during the hearing since Dill's foreman testified that he was a competent and efficient worker and since the respondent sought to change its answer to allege that Dill was not reinstated because he never applied for reinstatement and that the respondent was always ready to reinstate him. That the latter reason is only an excuse adopted to fit the situation is apparent when the circum- stances surrounding the failure to reinstate Dill are considered. Dill lived within 5 minutes' walk of the tannery. Because he was not reinstated , it was necessary for the respondent to teach another man to operate a shaving machine at a direct cost of $150 to $200. By the time of the hearing the respondent had, broken in four more shavers at approximately the same cost. Moreover , the failure to recall Dill is clearly discriminatory when it is contrasted with the treatment accorded to James Seekins , another employee and the financial secretary of the Association . Seekins testified without contradiction that although he was in the habit of going to the plant looking for work when he was laid off, it was his foreman's practice to send for him when he was supposed to return to work. No such treatment was accorded to Dill. The respondent offered evidence to show that Dill had told various employees that he would not return to work for the respondent under any conditions . Some such evidence was admitted by the Trial Examiner and some was excluded. Since the 'respondent offered no evidence to show that such statements had influenced its decision not to recall Dill, the testimony, was immaterial and properly excluded. Dill himself testified that he wanted to return to work for the respondent. We find that by failing to recall and thus refusing to reinstate Lynn Dill in April 1938, the respondent discriminated in regard to his hire and tenure of employment, thereby discouraging , member- ship 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. Since the evidence shows that no shaving work was available on April 4, 1938, and until the week ending April 30, 1938, we find that the respondent did not discriminate in regard to the hire and tenure of employment of Lynn Dill by laying him off on April 4, 1938. That allegation of the complaint will be dismissed. HARTLAND TANNING CO., INC. 41. E. Interference, restraint, and coercion We have found above that the respondent by dominating and interfering with the formation and administration of the Associa- tion and contributing support to it, by discharging and refusing to reinstate Laurence Waldron in August 1937, and by refusing to reinstate Lynn Dill in April 1938, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. In addition thereto, we find that by Kirstein's threats in August 1937 to move from Hartland and cease operations there if his employees joined or organized an independent union, by similar threats in February 1938 directed against the em- ployees joining the C. I. 0. and its affiliate, the National, all of which are recited above, and by inciting the citizens of Hartland to procure cessation of union activities and membership except in so far as such activities were directed toward the formation of a union domi- nated by the respondent, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 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 respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we deem necessary to effectu- ate the policies of the Act. We have found that the respondent has dominated and interfered with the formation and administration of the Association . and has contributed support to it. By reason of the respondent's acts the Association cannot serve as the freely chosen representative of the employees and its continued existence thwarts the purposes of the Act. In order to effectuate the policies of the Act and free the employees of the respondent from the effects of such domination and interfer- ence, we shall order the respondent to withdraw and refrain from any recognition of the Association as representative of any of the re- 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's employees for the purpose of dealing with' the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work, and to disestablish it as such representative. We have found that the respondent discriminatorily discharged Laurence Waldron in August 1937 and that it discriminatorily refused to reinstate Lynn Dill in April 1938. We shall order the respondent to offer Waldron and Dill immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges and to make them whole for any loss of pay they have suffered by reason of the discrimination against them by payment to them of a sum of money equal to the amount which each would normally have earned from the date of the respondent's discrimination against him to the date of its offer of reinstatement pursuant to the terms of our Order, less the net earnings 11 of each during said period. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. National Leather Workers Association, Local No. 21 thereof, and Hartland Leather Workers Association are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and ad- ministration of Hartland Leather Workers Association and by contributing support thereto, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ, ment of Laurence Waldron and Lynn Dill, thereby discouraging membership in labor organizations, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. . 11 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge or the unlawful refusal of employment to him and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects are not considered as earnings, but as pro- vided 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 Corporation and Steel Workers Organizing Com- mittee. 9 N. L R B 219, enforced , as modified as to other issues, Republic Steel Corpora- tion v. N L. R B, 107 F. (2d) 472 (C. C. A 31. HARTLAND TANNING Co., INC. 43 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent did not engage in unfair labor practices, within the meaning of Section 8 (3) of the Act, by laying off Lynn Dill on April 4, 1938. ORDER Upon the basis of the foregoing findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Re- lations Act, the National Labor Relations Board hereby orders that the respondent, Hartland Tanning Co., Inc., Hartland, Maine, and_ its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the formation or administration of Hartland Leather Workers Association, or dominating or interfering with the formation or administration of any other labor. organization of its employees, and contributing any support to Hartland Leather Workers Association, or to any other labor organization of its employees; (b) Discouraging membership in National Leather Workers Association, Local No. 21 thereof, or in any other labor organization of its employees, by discharging, laying off, or refusing employment to any of its employees, or in any other manner discriminating in regard to the hire and tenure of their employment, or any term or condition of their employment; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities, for the purpose of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the National- Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from and refrain from recognizing Hartland Leather Workers Association as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and completely disestablish Hartland Leather Workers Association as such representative; 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Offer to Laurence Waldron and Lynn Dill immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges ; (c) Make whole Laurence Waldron and Lynn Dill for any loss of pay they may have suffered by reason of the 'respondent's discrimination against them by payment to each of them of a sum of money equal to that which he would normally have earned as wages from the date of the respondent's discrimination against him to the date of the respondent's offer of reinstatement pursuant to this Order, less his net earnings 12 during said period; deducting, however, from the amount otherwise due each of said employees, monies received by such employees during the said period for work performed upon Federal, State, county, municipal, and other work- relief projects; and pay over the amount so deducted to the ap- propriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for such relief projects; (d) Post immediately, and keep posted for a period of at -least sixty (60) consecutive days from the date of posting, notices in conspicuous places throughout its plant stating that the respondent will cease and desist in the manner'set forth in paragraphs 1 (a), (b), and (c) of this Order; that it will take the affirmative action set forth in paragraphs 2 "(a), (b), and (c) of this Order; and that the respondent's employees are free to become or remain members of National Leather Workers Association, and Local No. 21 thereof, and that the respondent will not discriminate against any employee because of membership or activity in these organizations; (e) Notify the Regional Director for the First Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, with respect to the laying off of Lynn Dill on April 4, 1938. 12 See footnote 11, supra.