The Holmes Silk Co.

In the Matter of THE HOLMES SILK COMPANY and TEXTILE WORKERS UNION OF AMERICA Case No. C-1826.-Decided August 5, 1940 Jurisdiction : textile manufacturing industry. Unfair Labor practices Interference, Restraint, and Coercion: declarations of union preference; threatened cessation of operations. - , Company-Dominated Union: employer's suggesting formation of, and presenting plan for, to employees-permitting use of company bulletin boards by-indicia of domination: consummation, without proof of authority and after cursory negotiations, of agreement, containing no material changes in working condi- tions, during pending negotiations with outside union; appearance of dominated union during strike. Discrimination: lay-offs of employees because of their union membership and activities; charges of discrimination as to one person, dismissed. Remedial Orders: reinstatement and back pay awarded; company-dominated union disestablished and contract with said dominated union, abrogated. Mr. Joseph Castiello, for the Board. Mr. Michael J. Maggio, of Williamsport, Pa., for the respondent. Mr. James H. Mitchell, of Williamsport, Pa., for the Association. Mr. Bonnell Phillips and Mr. Frederick W. Killian, of counsel to the Board. DECISION, AND ORDER STATEMENT OF THE CASE Upon third amended charges duly filed by Textile Workers Organiz- ing Committee,' predecessor of Textile Workers Union of America 2 the National Labor Relations Board ,, herein called the Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsylvania) issued its complaint dated May 5, 1939, against The Holmes Silk I Herein called the Union. 2 Subsequent to the hearing and issuance of the Trial Examiner's Intermediate Report herein, the National Labor Relations Board, upon motion duly filed and accompanying affidavit stating that Textile Workers Union of America had become the legal successor of Textile Workers Organizing Committee, issued its order to show cause why the motion filed by said Textile Workers Union of America praying that its name be substituted for that of Textile Workers Organizing Committee in this proceeding should not be granted. No objection having been thereafter made, the National Labor Relations Board, on October 19, 1939, issued its order granting the above motion. 26 N. L. R. B., No. 10. 88 THE' HOLMES SILK COMPANY 89 Company, Williamsport, Pennsylvania, 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), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49-Stat. 449, herein called the Act. With-respect to the unfair labor practices the complaint alleged in substance (1) that the respondent in or about, July or August 1937 caused to be formed,' and continued to dominate and interfere with the formation and administration of, a labor organization among its employees -known as Newberry Textile Workers' Association, herein called the Association, and contributed support thereto; (2) that the respondent discriminated in regard to the hire and tenure of employ- ment of seven named employees; 3 and (3) that the respondent, by the foregoing acts and in other ways interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Copies of, the complaint, accompanied by notice of hearing, were duly served upon the respondent, the Union, and the Association. The respondent filed an answer to the complaint, dated May 25, 1939, denying that it had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held at Williamsport, Pennsyl- vania, on May 25, 26, and 31, 1939, before Madison Hill, the Trial Examiner duly designated by the Board. The Board and the respond- ent were represented by counsel and participated in the hearing. The Association was represented at the hearing by its president but did not otherwise participate in the proceedings. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded all parties. At the close.of the hearing the Trial Examiner granted without objection a motion to amend the complaint to conform to the proof. During the course of the hearing rulings were made by the Trial Examiner on other motions and objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On July 11, 1939, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, finding that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act, and recommending that the respondent cease and desist therefrom and, affirmatively, that the respondent withdraw all recog- nition from and completely disestablish the Association as a represent- ative of its employees for the purpose of collective bargaining, and that the respondent offer -full reinstatement with back pay to Lena Snyder, Ruth Bower, Mrs. Chester Snyder, Sarah Bierly, Chester 3 Lena Snyder, Ruth Bower, Mrs. Chester Snyder, Sarah Bierly, Chester Snyder, Oak Bierly and Gilbert Bower. .1 .1 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Snyder, Oak BIerly; and Gilbert Bower. In his Intermediate Report: the Trial Examiner advised the parties that they had the right to file. briefs and to request oral argument before the Board. , Thereafter the respondent filed exceptions to • the Intermediate Report. None of the parties exercised the right to file briefs or re- quested oral argument. The Board has considered the exceptions to the Intermediate Report and, in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds no .merit in them. Upon the entire record in the case the Board makes the following: FINDINGS OF FACT -I. THE BUSINESS OF THE RESPONDENT The respondent, a New Jersey corporation with its principal place' of business and only operating plant' at Williamsport, Pennsylvaiia, is engaged in the manufacture of broad silk, rayon, cotton goods, and similar products. Approximately 95 per,cent of the raw mate- rials used in the manufacture of -these products is secured by the respondent from points outside of the State of Pennsylvania. The respondent's finished products, amounting in value for the year 1938 to approximately $670,000, are almost entirely distributed to points outside of Pennsylvania. It was stipulated at the,hearing that the respondent is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Textile Workers Union of America, formerly known as Textile Workers Organizing Committee,' is a labor organization affiliated with the Congress of Industrial Organizations. It admits to member- ship employees in the textile industries. Newberry Textile Workers' Association is an unaffiliated labor, organization, admitting to membership employees of the respondent'" III. THE UNFAIR LABOR PRACTICES A. Inte?ference, restraint, and coercion; domination, interference with, and support of the Association 1. Events prior to the formation of the Association; the instigation of the "shop plan" petition - The first organizational activity at the respondent's plant was\ begun, as far as the record reveals, in April 1937; by the Union. By 4 At the time of the hearing the respondent also owned a dismantled textile mill at Ridgway, Pennsylvania 5 See footnote 2, supra. 6 It was testified during the course of the hearing that the Association admits to membership persons other than employees of the respondent . The Association's bylaws , however, limit voting privileges and other prerogatives of membership to employees of the respondent. THE HOLMES SILK COMPANY 91' September ; 1937, due in considerable degree to the solicitations of Chester Snyder, a'weaver employed by the respondent in its second or night shift, unioli membership approximated 48 of the 189 workers then yin the respondent's employ. During the,period of this growth, in June 1937, Snyder was informed during a conversation with his foreman,'Oscar Edler, that the respond- ent's officials had refused an order for the manufacture of textiles because the -officials were "worried that they would take an order and the C. I. O. would get in the plant and cause a strike and they would not be be' able to get the order out,on time." , As will appear more fully hereinafter, the respondent normally operated without any backlog of orders and at various times employment at the re- spondent's plant was seriously curtailed due to a lack of business., Consequently Edler's statement that the respondent's officials had refused an order because of the presence of the Union in the plant must be viewed, especially. under these, circumstances, as a grave threat that continued union activity would result in unemployment for many of the respondent's employees. We find that the respondent, by the above-described conduct of Edler, a supervisory official with power to hire and discharge, inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed iii Section 7 of the Act. On or about July 15, 1937, Edler ordered an employee on the night shift named John= Fenderson to present to 'each 'employee in the shift a' paper given-to him by Edler and' drawn in the form of a petition to the effect that "we; the undersigned, are 'desirous of forming a shop plan' union." The text of the petition carried a further statement that if a sufficient number of the respondent's employees signified their, assent to this proposition, a plan of organization would be explained to them. Pursuant to' Edler's instructions, Fenderson showed the petition to the employees in turn, asking them whether they wished to sign it, and thereafter returned it to Edler.7 The circulation of this petition, testified to -by Fenderson and by various employees to whom it'was 'p'resented, was undenied by Edler, who was not summoned as it witness at the'hearing although the Trial Examiner stated in his ' Intermediate 7 The selection of Fenderson to circulate the petition does not appear to have been predicated upon any belief that this employee was sympathetic with the purposes of the petition To the contrary, it appears that Edler kept close watch over Fenders on while he was cairymg the petition from employee to employee Fenderson and two of the employees to whom he presented the petition testified that when they began to inspect the petition, "to leaf it over ," Fenderson warned them "not to delay" him lest Edler think he was urging them not to sign the petition , and further testified that they then looked up and saw Edler watching them We assume therefore that Fenderson 's selection was based upon his availability for the task In the respondent's pay roll of August 7, 1937, wherem'a break-down of the positions occupied by the vai ions employees is,made, Fenderson is the ony employee classified as a "floor hand " 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent, charged in the complaint with the instigation and circulation of the petition, denied this allegation in its answer. At the hearing the respondent's president, Willard Phillips, who was at the time in question the respondent's superintendent, denied having any knowledge of the existence or circulation of the petition. - While Edler's supervisory authority was such as to make his actions clearly attributable to the respondent," we are unable to credit Phillips'. testimony, and find that the instigation of the petition was the act of Edler's superior officers. The petition, when given to Fenderson by. Edler, had on it already the signatures of many of the day-shift em- ployees. On the day following its circulation, Mrs.-Chester Snyder, wife of the union leader, inquired of Raymond Lowe, foreman of the day shift, as to the whereabouts of the petition. Lowe was not called as a witness at the hearing and consequently Mrs. Snyder's testimony as to the conversation which thus ensued is uncontradicted : He (Lowe) said, "Where do you think?" And I says: "You know that paper isn't supposed to be in the office." "Oh," he says, "how' do you think they would get it started?" On the same day Edler approached Snyder with, a statement that he had just been severely reprimanded by the respondent's manage- ment "on your account." In explanation Edler stated that the repri- mand had been given him because "there wasn't enough names on that paper on the night shift" and that "they claimed you used your influ- ence to keep the people from signing that paper , _. . that you held a meeting outside the mill yesterday afternoon, before you came to work." Snyder, immediately denied that there was "talk of any kind of a union outside the mill yesterday," and later repeated this,. denial to Phillips. Snyder testified that Phillips, after admitting that a report on Snyder's activities of the day before had come to the office,, stated, "as far as I am concerned I don't care how many names arc on that paper, the only thing I feel is that if we must have a union here in the plant I would sooner have a shop union of our own employees instead of having an outsider come in telling us what to do." The Trial Examiner credited Snyder's testimony, as to ,this interview over Phillips' denial that the conversation had occurred. In view of the Trial Examiner's finding, and the undenied testimony concerning the prior statements by Lowe and Edler, we find that Phillips made the statements attributed to him by Snyder substantially as set forth above. It is apparent and we find from the foregoing testimony that the petition, which stated, according to Fenderson, not only that the signers wished to form an "inside union" but that they preferred this type of organization to "becoming affiliated" with an outside union, originated in the respondent's "office" with the cognizance and approval 8 As already stated. Edler was vested with authority to hire and discharge. THE HOLMES SILK COMPANY 93 of officials superior to Edler and_ Lowe. It is also apparent that the respondent's officials were dissatisfied with the response made to their plea by the employees of the night shift, and believed that Snyder, having learned of the petition's circulation among the day shift, had urged the employees on the night shift before they reported to work to refuse their signatures to the petition. We find that the respondent, by the instigation and circulation of a petition urging the formation of a shop-plan union in preference to an "outside union", and by Phillips' later statement to Snyder indicating the same preference, interfered with, restrained, and coerced its employees in their rights of self-organization, to form, join, and assist labor organizations, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid and pro- tection as guaranteed in Section 7 of the Act. 2. The formation of the Association Approximately one month after the circulation of the above-dis- cussed petition urging the formation of a shop-plan union, the union membership in the plant went on strike, establishing a picket line outside the respondent's mill. The record reveals that this action was not caused by the respondent's unfair labor practices, but was taken in response to a general strike call issued by the Textile Workers Organizing Committee for the purpose, as far as the record shows, of improving general conditions throughout the textile industry. The Association, alleged in the complaint to have been instigated, domi- nated, and supported by the respondent, had its formal inauguration while this strike was in progress. The record lacks information concerning the preliminary steps taken in the formation of the Association. The Board attempted to elicit such information from Joseph Glenn, an employee elected the Association's first president. Although questioned at- considerable length, Glenn, testifying under subpoena issued by the Board, not only confessed ignorance concerning the details of the Association's inception or the preliminaries to its formation, but in many respects professed forgetfulness of incidents in the Association's history which were patently within his knowledge at the time of their occurrence.' There was no other testimony or evidence introduced by any party to the proceeding to supply the material lacking in Glenn's testimony. In the absence of any showing as to the preliminary steps looking towards the formation of the Association, and the inability or refusal by Glenn to convey any material information in this regard, we think significant the fact that the above-discussed shop plan petition circulated by the respondent contained a statement that if enough employees signed the petition, a plan of organization would be -ex- Excerpts from the testimony of Glenn are set forth hereinafter. 94 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD planned to them. The minutes of the Association's first meeting, held on August 30, 1937, reveal that the 14 members then present adopted without recorded debate an elaborate set of bylaws, consisting of 15 articles and many subdivisions thereof. According to the testimony of Glenn, these bylaws, which were in effect the Association's consti- tution, were drafted and presented to the Association by John Young- man, an attorney.10 Glenn, however, testified that he was without knowledge of the persons who had retained Youngman or who had recommended the attorney to the Association. Since the bylaws were in existence prior to the Associations first meeting, it will of course be recognized that the Association could not haveguaranteed the attorney compensation for his work in preparing the said bylaws. Under the circumstances, in view of the implication in the "shop plan" petition that a plan of organization was already in existence at the time of Its circulation," and in consideration of the contents of the Associa- tion's bylaws and other factors hereunder discussed, we think it reasonable to infer not only that the Association was formed in response to the respondent's request for an intramural union, as con- tained in that petition, but that the Association adopted a plan of employee representation presented to it by the management.12 Article II of the Association's bylaws contains a preamble as to the purposes of the organization. It reads as follows: The purposes are to promote cooperation between the employ- ees and the management; to give employees a voice in matters of mutual interest, including wages, hours of work, safety, sanita- tion, and other working conditions; to provide an orderly and expeditious procedure for the prevention and adjustment of differ- 10 Glenn, in response to a question as to who had drafted the constitution or bylaws, stated "Why the attorneys drew that up " Only Youngman, however, was named by Glenn. ii As before stated, the petition, while it contained no explanation of the proposed form of the shop-plan union, did, however, contain a provision that if enough of the employees sign the petition, the plan of organ- ization would be explained to them i2 An indication that the formation of the Association was not an act of self-organization by the employees of the respondent, is also found in Glenn's testimony Glenn, chosen at the beginning of the Association's first meeting as temporary president and later elected its first annual president, stated, while a witness, that he could not recall certain events which occurred at the Association's first meeting. Glenn was instructed . Look at the minutes, and also you were presiding, you should remember as well as anyone A. No, I was not the presiding ollicer. Q Well, what did the temporary president do, will you please tell nic that? A Mr Youngman (the attorney] was what I call the temporary president Q The attorney was the temporary president? A. I-Ie was the former of the organization Q Well, was lie a leader in the formation of the organization? A I do not understand that question Q T)id Mr Youngman, the attorney, foi in the organ eats ii? A That is not cleat to nie, I do not understand ii .e # * k d Q You testified that ills Youngman piezided at tlic fast nieetmg, is that correct? A I wouldn't say exactly presided, lie was there ' Q I am merely follon uig your words, and is it your testimony at this time that you wcrc selected over Mi Youngman? - A. That is light THE HOLMES SILK COMPANY .95 .ences; and to afford a means through which employees may be furnished information of mutual interest by the management. In order to effectuate - the purposes of the Association, as above promulgated, the bylaws provide, in substance, for the election by Association members of "Employee Representatives "-each member being granted the right to vote solely for a representative from the work division in which he is classified under the bylaws. Representa- tives of the seven departments in the mill thus chosen constitute collectively the "Association Council," membership in which is, how- ever, automatically terminated if a representative "leaves the service of the Company." This council "as governing body of the Associa- tion, may consider and make recommendations on all questions relating to wages, hours of labor," and other enumerated conditions of employment. It is further stipulated in the bylaws that "the Council may on its own motion investigate matters of mutual interest and make recommendations to the management." In the presenta- tion of such matters, however, the Council is restricted by a provision imposed by the Association's own bylaws, that "all meetings requested by the Employee Representatives for the purpose of meeting with the Management must be given in writing, stating reason for meet- ing." 13 In contrast to the somewhat subservient character of these provi- sions relating to collective bargaining procedure, the bylaws, adopted, of course, without any revealed sanction by the management, have numerous sections which place obligations upon the respondent. Article VII, Section 9 of the bylaws provides for nominations and elections of officers of the Association. - It contains • the following provision: The results of the balloting and the names of the nominees shall be posted on the employees' Association's bulletin board as soon as the votes have been counted and the nominations declared Similarly, Article XV of these bylaws provides in part that: Notice ' of any proposed amendment to the bylaws shall be posted by the Secretary of the Association on the bulletin board of the Association in the plant at least 10 days prior to the meeting at which such proposed bylaws are to be voted upon. Despite the' fact that the Association bad-no contract with the re- spondent guaranteeing the use' of a bulletin board in the plant, the record reveals and we find that the Association, having arrogated to itself the use of-such' facilities in its bylaws, posted and maintained without objection from the respondent a notice of a meeting set for 13 In the contract later made between the Association and the respondent it is stipulated that "Oral complaints are permitted to be made to foremen or assistant foremen, but any complaint made to the execu- tive office or officers of the Company must be in writing. 96 DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD October 30, 1937, on a plant bulletin board. Although this notice was prominently displayed and was maintained over a considerable period of time, the respondent gave no order to -remove the notice. In view of the hostility expressed by the management to the Union- hostility which subsequently found expression in the discriminatory lay-offs and discharges of several active leaders of the Union 14-we find that the respondent by its action in granting the facilities of its bulletin board to the Association, contributed support to that or- ganization.lb Returning again to a discussion of the Association's bylaws, we find numerous other provisions thereof which place obligations upon the respondent. Article XI, containing,a "procedure for adjustment," stipulates that if the employees' representative is unable to reach a satisfactory agreement concerning a grievance with the aggrieved employees' foreman, "they, in consultation with the management's representative, shall prepare a joint statement of the matter to ' be taken up with the foreman's superior officers." Section 2 of the same article provides that the Council "may go in a body with the manage- ment's representative to any part of the plant for the purpose of making an investigation." Section 5'thereof provides that "within 10 days after the matter has been referred to him, the plant manager shall 16 either (a) propose a settlement; or (b) refer the matter to arbitration." Finally, in Article XIII, making a provision for the "independence of representatives," it is stated: A representative shall be free to discharge his duties in an independent manner without fear that his individual relations with the company may be affected by any action taken by him in good faith in his representative capacity. To assure each representative such independence of action, he shall have the right to take any question of an alleged personal discrimination against him on account of his acts in his representative capacity, to any of his ranking works executives, and failing a satisfactory adjustment, to place the matter before the council. In the above-quoted article reference is made to a "right" to take any question of an alleged personal discrimination to the respondent's supervisory officials. This "right," as well as other duties which are incumbent upon the respondent under the bylaws, could; of course, only be guaranteed by the respondent, and their assertion in the con- stitution of a newly created organization, in and of itself strongly suggests employer participation in the preliminaries to the Associa- 14 See Section III B, infra. 15 It will be noted that Snyder had even been reprimanded in effect by Edler for speaking of union matters outside the plant and before working hours. A Italics supplied. THE HOLMES SILK COMPANY 97 tion's formation. It is further stipulated in Article XIII that in the event "the Representative's claim is sustained (by the Council), the matter shall be referred to the Plant Manager; and failing a satis- factory adjustment with the Plant Manager, it shall be submitted to arbitration." While it is our opinion that the unilateral assertion of these privileges reflect and-reveal the respondent's domination of and participation in the Association, we think also significant the fact that the. contract which was later executed between the Association and the respondent, while it did not materially alter the conditions of employment which obtained in the respondent's plant prior to the existence of the Association, did, however, incorporate without change in phraseology' the procedure "guaranteeing" the independence of representatives,17 the arbitration provisions in the Association's by- laws, and other obligations which the said bylaws placed upon the respondent.18 To negative the inferences of employer participation in the forma- tion of the Association, the record contains only a statement by Joseph Glenn that the respondent was not aware of the existence of the Association until it was informed of that fact by a committee of three representatives of the Association, selected by it at its second meeting some time between August 30 and September 7, 1937. Glenn, appointed to this committee, was asked: Q. Why did you go in and notify the company? A. We wanted them to know that we represented the majority of the workers. . Q. So that it is your testimony that you at that time repre- sented the majority of the workers? A. That is right. We are unable to. credit Glenn's testimony in this respect. The first two meetings of the Association had been attended by 14 and 12 mem= bers, respectively. At its second meeting, during which the committee of three was formed, the Association also appointed a committee of nine to solicit membership. Under these circumstances, we think it dubious that the ,Association had at that time a majority of the respondent's employees. Glenn, however, further testified: Q. Do you recall when the committee went in to see the repre- sentative of the company and:advised them of the formation of a union, what was said? A. I do not remember at all. v See U S Bureau of Labor Statistics, Bulletin No 634, Characteristics of Company Unions 1935 , op cit p. 127. "In only one case did the company union itself ... undertake to assure independence. To protect the independence of its officials , it included an arbitration provision in its constitution The acceptance of the provision by the management implied its participation in the guarantee." 18 This contract moreover, as found below, was granted to the Association without demand that it prove its status as majority representative of the respondent's employees, although the respondent had previously refused recognition to the Union unless it could meet this requirement. 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. You stated the purpose was to go in and advise them that the union represented a majority? A. That is correct. Q. Do you recall whether that was told to the management? A I presume it was. Q. But you don't remember? A. I don't remember, no ... Q. Was the union anxious to see that the company did know that a union was formed in the plant? A. I don't remember. In view of this testimony, which is the only testimony we have con- cerning this transaction, and in the light of our previous discussion, we are unable to believe that the respondent had no knowledge of the Association prior to this time. Prior to the execution of the Association's contract on November S, 1937, the Union, through a committee of which Chester Snyder was a member, submitted a contract to the respondent. The respondent's superintendent, Phillips, testified that "We told them if they could prove that they represented a majority of our employees we would look at it [the contract submitted]." When, however, the Association began negotiations looking towards the execution of a contract with the respondent, it is apparent that the respondent did not require similar proof from that, -organization. These negotiations were carried out by a committee authorized by the Association of which Glenn was a member. Glenn's testimony concerning this transaction follows: Q Do you recall, Mr. Glenn, whether or not the company asked you for proof of majority before it signed a contract? A I do not recall that they asked me that no. Q. Not you personally, but any members of the negotiating committee? . A. They probably asked the others; I • could not tell you. They did not ask me personally. '•Q. Were you present when, the company asked anyone i•epre= seating the Association for proof of majority?. A No. Q Were you at all the conferences that led up to the signing of the contract? A. Well, I have no way of telling that. Q. Well, you as president would know when any conference was to be held on a contract, would you not? A. Yes. But I don't know whether I was present at all of them or not. ' THE' HOLMES SILK COMPANY 9,9 This is the complete testimony by Glenn concerning any proof offered to the respondent concerning the Association's majority status During the examination of Phillips, the respondent's superintendent, concerning the same matter, counsel for the respondent questioned him as follows: Q. You heard Joe Glenn testify, I believe, that the employees signed a card and they showed you by these cards that were signed up that they represented the majority? Board Attorney: Now wait a minute. 1 object to that, Mr. Examiner, Joe Glenn did not testify in what way proof was presented to the respondent. Respondent's Attorney: I will withdraw the question and put it this way--- Board Attorney: Yes, but tlio witness is cognizant of the answer desired in the following question Respondent's Attorney: I might say there that Joe Glenn did not testify that way. But let us not encumber the record. Q. (By respondent's attorney): Did you sign a contract with the Newberry Textile Workers Association [the Association]? A., We did, Q. Do you know whether they represented a majority? A. They brought in some evidence, they brought in a lot of names. Q. And from 'the payroll that you had, did they represent the majority? A. I did not check over those names. Q. Well, who did? How do you know that they represented a majority? A. I did not know when the contract-well, I think my brother and my father looked over the names. Phillips' father was'deceased at the time of the hearing. However, there is no stated reason in the record why' Phillips' brother was not called upon to testify if, in fact, he had made any check as to the Association's majority status. In,view, therefore, of the ,testimony by Glenn and Phillips and the fact that Phillips himself carried on the Iiegotiations with the Association and became the sole party signatory to the contract on behalf of the respondent, we find that the respondent granted recognition to the Association without investi- gating or requiring proof of its status as a majority representative of respondent's employees, although the respondent had previously demanded such proof of the Union. We therefore find that the respondent by this action favored the Association over the Union and gave support to the Association. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The negotiations and the execution of the contract Three meetings were held during October 1937 between the repre- sentatives of the respondent and the Association for the purpose of negotiating the contract. The first draft of the contract submitted by the Association contained a provision for a wage increase. This proved unsatisfactory to the respondent. The Association then acquiesced in the respondent's refusal to consider a wage raise, appar- ently without further consideration of the matter, and solely upon the respondent's statement that due to losses sustained by it over a period of several years it was not in a position to accede to the Association's request. The Association also included a provision in the first draft of the contract- eliminating all work on Saturdays, but, the respondent being unwilling to accept this provision, it was also eliminated." As a result, the contract as finally executed contained no material changes in the conditions of employment which had. previously obtained in the respondent's plant.20 And although a stipulation was made in the contract for future negotiations at the end of 6 months between the Association and the respondent concerning wage. increases, tiie'record fails to disclose that any such negotiations took place. At the end of a year the contract was renewed without any change in its provisions. 4. , Conclusions It is our conclusion, based on the considerations set forth above, that the respondent, by interfering with, restraining, and coercing its employees in their attempt to organize and by dominating, interfering with, and supporting the Association, has established and maintained among its employees a collective bargaining representative not of their own choosing. The formation of a union composed exclusively , of. employees, of the respondent was first suggested by the respondent in the petition cir- culated on July 15, 1937. Phillips' statement to Snyder that "the only thing I feel is that if we must have a union here in the plant I would sooner have a shop union of our own employees leaves no doubt that the petition was circulated to counteract and defeat the steady growth of the Union among the respondent's' employees. Thereafter, during a period of strike activity, the Association, a form of organization specifically approved by the respondent's petition, came into being under the auspices of persons unrevealed. The re- IC Retained and incorporated in the final contract was a provision that the respondent should checlr o1 dues from the wages of the Association 's members and pay such dues to the Association 's financial secretary. The Association at its first meeting set dues at 50 cents per month, but shortly thereafter reduced such dues to 10 cents a month. 40 So far as we are able to determine, the only benefit received by the members of the Association was a provision for a "loom cleaner " and a provision' lhet employees who desired to work overtime should not be permitted to do so. THE HOLMES SILK COMPANY 101 spondent's tactic approval of the Association 's use of its bulletin board, and the ready recognition of the Association by contract not only gave support to the Association but also demonstrated to the employees that it continued its opposition to their forming or joining a bona fide labor organization . The lay-offs considered by us below in Section III B of our decision of necessity strengthened this impression. We have previously remarked upon the fact that the shop plan petition contained a statement that if enough of the employees signed that petition a plan of organization would be explained to them. There is no evidence in the record to negative the presumption above drawn that the Association at its first meeting accepted such a plan. On the contrary the provisions of the Association's bylaws above con- sidered are patently modeled after forms of employee representation plans which we have heretofore considered in other decisions , and have found to contain the seeds of employer domination . For the reasons above given we are of the opinion that the provisions of the Asso- ciation's bylaws are not the indicia of a bona fide labor organization. We find that the respondent dominated and interfered with the formation and administration of the Association and contributed sup- port to it, thereby interfering with, restraining, and coercing its- em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act. B. The discriminatory lay-offs Reference has previously been made to a strike begun by union members on or about August 12, 1937 . On or about September 28, 1937 , following conferences between management and union repre- sentatives , an agreement was reached terminating the strike . Chester Snyder, a negotiator for the Union , testified that the agreement was predicated upon the respondent 's promise to reinstate all striking em- ployees within 10 days after the strike was terminated . Phillips, then the respondent's superintendent, testified,' however, that the respondent agreed to reinstate the strikers' only when business con- ditions thereafter permitted . We consider this conflict of testimony below. Pursuant to whatever agreement which was reached, six of the seven employees alleged in the complaint to have been discriminated against were reinstated within 10 days after the strike ended and were subsequently _laid off; the seventh, Lena Snyder , sister of the Union leader, was never recalled . All seven were active union members and active participants on the picket line maintained by the Union throughout the strike. The circumstances surrounding their subse.= quent lay-offs will be discussed individually below, 323429-42-vol. 26-$ 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From testimony at the, hearing and from the exceptions filed by the respondent to the Trial Examiner's Intermediate Report, it appears that the respondent asserts several defenses to the charges of dis- crimination within the meaning of Section 8 (3) of the Act; some applicable to one or more of the seven employees named in the com- plaint, others general in nature. One defense, asserted in the re- spondent's exceptions to the Intermediate Report, was persistently suggested by the respondent's counsel at the hearing, but refuted in the testimony.of the respondent's sole witness at the ;hearing, Phil- lips, who became president of the respondent in February 1939. In brief it is a claim that the residence of employees, that is, whether they lived in Williamsport, the site of the respondent's plant, was a factor in the respondent's employment policy. The allegation that such employees were favored in the determination of lay-offs was specifically denied by Phillips.21 It was shown, moreover, that the respondent, although operating with a curtailed force at the time of the hearing, still retained in its employ several "out of town" em- ployees.22 We accordingly find this contention to be without merit. The respondent's chief contention, and the main point of conflict between Phillips and the employees named in the complaint, is, how- ever, centered in the question of seniority. The five weavers named in the complaint23 all testified that when it became necessary to order a reduction in the number of its employees prior to the strike, the respondent laid off employees in the following order: married women, unmarried women, single men, and finally married men. As appears hereinafter, the 'respondent did not observe this alleged order of preference in making lay-offs after the strike. Phillips, on the other hand, testified that the respondent had never maintained any rule of seniority, but his statement is qualified by the following testimony: Q. Now, some reference has been made by the various wit- nesses that you have a policy of seniority, that married men were taken into consideration first, and then married women, and then single men and then single women; is that correct? A. (By Phillips.) To the best interests of the company, yes. ,Q. In other words you mean that the rule was adopted pro- vided they were efficient and equal with the others in their work? A. Yes. "-i Phillips, in response to a question whether, "when it was necessary to lay oil employees (lid you show a preference towards Williamsport as against people from out of town," stated, "We have not." Phillips also testified that "people have been after me wanting to know why I did not lay off Jersey Shore [out of town] people, let them go, and employ Williamsport help, (and) I have told them that I would not let them go " ii Among them George Long , Esther Kissell , and LaRue Simmons It appears in addition that certain employees, among them Rodney Pennypacker, who were non-residents of Williamsport, were retained after the non-residents named in the complaint were laid off, although those retained were junior in point of service to those laid off 23 Chester Snyder, Mrs Chester Snyder, Oak Bierly, Sarah Bierly, and Gilbert Bower The oche( employees named in the complaint, Ruth Bower and Lena Snyder , are quillers THE HOLMES SILK COMPANY 103 From all the testimony concerning this point we find that the re- spondent, although perhaps not observing seniority in the strict order alleged by the employees, did observe some form of quasi -seniority, dependent on the equal skill and productiveness of the various em- ployees,2' and relaxed , in certain instances , according to Phillips, because of the employees ' "home conditions, and dependents." The issue of seniority is further clouded because of the fact , which we infer from the testimony of Phillips , that when a reduction in the force of weavers became necessary due to slack business , such employees were laid off "as their looms ran out ," or became so nearly` depleted that the weaver could not longer earn a minimum wage in their operation. Accordingly, the retention of a weaver junior in service to a laid off weaver for a period of a week or even a month does not assume sig- nificance . We do regard as significant herein, however , the retention of certain weavers not otherwise explained , for long periods of time if such employees were junior in point of actual service with the re- spondent, or if their sex or marital status was such as to render then liable to lay-off, in accordance with the respondent 's rules of limited seniority, before the weavers named in the complaint . We regard as material also their reinstatement in the respondent 's employ where no offer of reinstatement was made to the weavers alleged to have been discriminatorily laid off. Since we shall have occasion to comment on such retained or reinstated employees , it is of importance to' note that the record shows the dates of their first employment with the respondent in only a few instances . We must therefore accept, unless contradicted specifically or by inference , the testimony of their fellow employees that such employees were in fact junior to them in point of service. The retention and reinstatement of these employees becomes sig- nificant in the light of the respondent 's expressed antagonism to the Union . As before stated, the employees named in the complaint were active union members and, as above found, the respondent had interfered with their rights to self-organization by the circulation of the shop plan petition , designed, clearly, to encourage and solicit membership in an intramural union, and to express its opposition to an "affiliated" organization or, in other words, the Union. The employees named in the complaint had all refused their signatures to this petition , and after the formation of the Association, which we have found to be company fostered and dominated in violation of the Act, had failed to become members of than organization.21 '4 With the exception of one immaterial instance noted below in reference to Chester Snyder, the respond- ent made no comparison between the skills of the employees named in the complaint and those of em- ployees junior to them who were retained after they were laid off, nor did it attempt to criticize their previous work in any manner. 20 The Association 's membership list was of necessity open to inspection by the respondent because of the check -off provision in the Association 's contract with the respondent See footnote 10, supra -104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD More important, perhaps, is the fact that the seven named employees, with one exception '21 had participated actively in the picket line established outside the respondent's plant during the strike. It is undenied that when one of these employees, Sarah Bierly, protested her subsequent lay-off to Phillips, he replied, "You didn't walk the picket line seven weeks for nothing." It is also undenied that at the conclusion of the conference which terminated-the strike and pro- vided for the reinstatement of the strikers, Phillips asked the union representative "if we were coming back as C. I. O. members" and received an affirmative answer. In the light of the above factors we consider, seriatim, the lay-offs suffered by the six employees named in the complaint, and the respond- ent's refusal to reinstate Lena Snyder after the strike. Chester Snyder was first employed by the respondent as a weaver in 1935 and had worked without lay-off until the time of the strike. Snyder's leadership in union affairs was manifestly well known to the respondent. As above seen, Snyder had been in effect repri- manded by Edler for having used "his influence" in causing certain night shift employees to refuse their signatures to the shop plan petition. Snyder had been conspicuous in his activity during the strike, assuming charge of the, picket line during the. absence of the Union's director who was not an employee. Thereafter, Snyder was the only employee who participated in the conference with the respondent which led to the termination of the strike. On the forma- tion of a local branch of the Union in October 1937, Snyder became vice president, and within a month thereafter, president of the Local. Following three months' employment after the strike, Snyder was laid off on January 14, 1938, by his foreman, Oscar Edler. The lay-off was ordered by Edler when he was informed by Snyder that the_warps on Snyder's looms had "run-out." In response to Edler's statement that he was laid off "until we put warps back in your looms," Snyder appealed for a transfer to another floor in the plant, claiming seniority over certain employees on that floor. Although it is shown in the record that this practice had been followed, to some extent, before the strike, Edler refused to grant Snyder's request. About an hour later, Snyder again saw Edler and said that he under- stood that a, married woman and a single girl had been so transferred during the previous week. Edler explained, according to Snyder, that the married woman's assignment was temporary but made no explanation concerning the transfer of the single girl. In conclusion, although Snyder made reference to the fact that married men had before been given priority of employment, Edler stated that he was carrying out Phillips' orders in laying him off. 2 Ruth Bower, see below. THE HOLMES SILK COMPANY 105 Three days after the lay-off Snyder returned to the plant to obtain a temporary severance slip necessary to his employment on a work- relief project, and saw Phillips. Phillips, in response to Snyder's question, stated that it "would be difficult to say" when Snyder would be reinstated, and, evading Snyder's questions as to seniority said, "When we put your looms back we will call you." Although it is und'enied that Snyder's looms were subsequently operated,27 Snyder was never recalled between the date of this lay-off and the date of the hearing. Snyder testified that after he was laid off, the respondent retained numerous employees junior to him in point of seniority, naming among others two married men, Aaron Shirn and Sheldon (Lew) Laylon. Shirn, as indicated in the preceding footnote, had been first employed by the respondent in 1917, although he had been subsequently laid off for an undisclosed period because of poor workmanship. Phillips testified that Laylon, hired some 2 months before the strike was not in the respondent's employ at the time of the hearing, but did not 'disclose the date of his lay-off. Since the respondent introduced only one pay roll, that of the period immediately preceding the strike, we are unable to determine how long Laylon continued in the respon- dent's employ after the strike. In accordance with our previous dis- cussion as to the procedure followed in lay-offs of permitting em- ployees to work until their looms "ran out," and the lack of informa- tion concerning the date of Laylon's subsequent lay-off, we therefore find no indicia of discrimination in the retention of Shirn or Laylon. Snyder also named five single men who were retained at the time of his lay-off: Carl White, Ken Edler, Jack Johnson, Mason (Red) Larson, and an unidentifiable "Smith." Phillips testified that Larson had been laid off, although not specifying the date upon which it occurred. There is an indication in, the record, however, that Larson's lay-off came long after Snyder's. In the undenied testimony of Oak Bierly, hereinafter discussed, Larson is named as having been re- tained after Bierly's first lay-off on April 13, 1938, and again after Bierly's lay-off on April 11, 1939. While the retention of Kenneth Edler, son of Snyder's foreman, might possibly be regarded as nepo- tism, we find from Phillips' testimony that Johnson; laid off approxi- mately at the same time as Snyder, was later recalled, and that White was not laid off until April 1939, and that he, too, was subsequently recalled. By similar processes we find that of the nine married women named by Snyder as junior to him who were retained by the respondent after Y7 At one time these looms were operated by Aaron Shirn, an employee first employed by the respondent in 1917, but subsequently laid off for an undisclosed period for poor workmanship . In view of Shire's record, we cannot believe that this employee could have been preferred to Snyder in the handling of "light shades," which Phillips claimed he "would not dare" entrust to Snyder Moreover, as found in the text immediately ,below, employees junior to Snyder were retained after his lay -off and were also reinstated subsequent thereto. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his lay-off, four, Severson , Rudinsky, Schaffer (Schaeffer), and Weber, were either retained for long periods or recalled after lay-offs occurring (luring the period of Snyder's unemployment. Of the remaining five, one, Mrs. Solcy, was laid off at the approximate time of Snyder's lay-off and was not recalled , one, Mrs. Auchmutty , although retained, was characterized by Phillips as "a darned good weaver ," and the remaining three were retained because of what Phillips termed the "human situation." While these three women 28 all had dependents, it may be noted that at the time of the strike the respondent employed three members of the Snyder family, and that the respondent, having failed to recall his sister, Lena, after the strike , and hav- ing laid off his wife, Helen, prior to laying off Snyder himself, might well have retained Snyder himself under "the human situation," es- pecially in view of Snyder's three minor children. Although, as above stated, both Phillips and Edler had promised to recall Snyder when his looms were placed in operation , this call never came. When asked the reason for the non-recall of Snyder and his wife, Phillips replied, "Because , if Mr. and Mrs . Snyder wanted the jobs, why didn't they come and ask for the job the same as anyone else?" This is an untenable evasion. The record shows in instances too many for enumeration that the respondent notified laid-off em- ployees to return to work by messages sent by fellow employees resid- ing near them or by telephone . It was well within Phillips' knowledge that Snyder lived near employees who could have conveyed such a message to him. We have found that the respondent , in derogation of its policy of retaining married men longest in its employ, and of observing, other factors being equal, seniority in point of service, retained or recalled without stated reason Larson , Johnson, White, Severson, Rudinsky, Schaeffer, and Weber after Snyder's lay-off. This fact , together with the evasive reason given by Phillips for the non-recall of Snyder, leads us to the conclusion that the respondent, aware of and opposed to Snyder's union activity , refused and has continued to refuse to reinstate Snyder because of such activity. We find that the respondent, by laying off Chester Snyder on January 14 , 1938, has discriminated with regard to his hire and tenure of employment , thereby discouraging membership in the Union. We further find that by such lay-off, the respondent has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. The record shows that subsequent to Snyder 's lay-off on January 14, 1938, he earned $227 .03 in work on a temporary highway construc- tion project. He also received during his lay -off $100 in unemploy- ment insurance. On February 4, 1939, he addressed a letter to the 2 Kissell , Dunkleherger, and White. THE HOLMla;S SILK COMPANY 107 respondent requesting reinstatement to his former position. At the time of the hearing, Snyder desired reinstatement. Helen Snyder,29 wife of Chester Snyder, was duly reinstated after the termination of the strike. On November 1, 1937, Mrs. Snyder was laid off by the respondent. Thereafter, on December 28, 1937, Mrs. Snyder was reinstated but for less than a fortnight, being again laid off on January 8, 1938. This second lay-off was still in effect at the time of the hearing. Like her husband, Mrs. Snyder, a weaver, was active in union affairs . She had refused to sign the shop-plan petition and had engaged in picketing during the strike. At the time of her lay-off, Mrs. Snyder requested that she be transferred to other looms, and . claimed seniority over other employees still retained by the respondent. In her testimony concerning employees junior to her in point of service, she named the following married women- White, Rudinsky, Soley, O'Neil, Kissell, Dunkleberger, Weber, and Singer. We have had occasion to examine the status of these em- ployees in a discussion concerning Chester Snyder. White, Dunkle- berger, and Kissell were retained by Phillips within the scope of what he termed "the human situation.". Mrs. Soley, as we have above found, was laid off near the beginning of 1938 and was not thereafter recalled. We find, however, that Rudinsky, Weber, O'Neil, and Singer 30 were either retained for long periods after Mrs. Snyder's lay-off or were recalled prior to the hearing. The excuse made for Mrs. Snyder's non-recall was identical to the one alleged in regard to Chester Snyder. As above stated, Phillips testified that "if Mr. and Mrs. Snyder wanted the jobs, why didn't they come and ask for the jobs the same as anybody else." As found above, this is an untenable position. No valid reason having been alleged for Mrs. Snyder' s non-recall, and no reason having been given for the retention of the weavers junior to her in point of service, namely, Rudinsky, O'Neil, Weber, and Singer, we find, as in the case of her husband, that the respondent, by laying off Mrs. Chester Snyder on November 1, 1937, and on January 8, 1938, discriminated with regard to her hire and tenure of employment, thereby discouraging membership in the Union. We further find that by ordering the said lay-offs, the respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. In the interval of her first lay-off between November 1, 1937, and December 28, 1937, Mrs. Snyder was unemployed. After her second lay-off on January 8, 1938, Mrs . Snyder had received, prior to the 16 Referied to in the complaint and hereinafter as Mrs Chester Snyder 3O Mrs Singer had been employed by the respondent for a period of not over 2 months before Mrs Snyder's lay-off At the time of her lay-off, Mrs Snyder called attention to the employment status of Mrs Singer but Edler, who ordered the las-off, evaded this question, and the respondent did not at the hearing allege any reason for Mrs Singer's retculiou 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing, $80 in unemployment insurance . She was unemployed during this period . On February 4, 1939, Mrs . Snyder addressed a letter to the respondent requesting reinstatement to her position , and at the hearing again expressed her desire for reinstatement. Sarah Bierly was first employed by the respondent in August 1934. Bierly, a weaver on the night shift under Edler's foremanship , was laid off on November 4, 1937, and had not been reinstated at the time of the hearing. Like the Snyders, Bierly had refused her signature to the shop-plan petition, had participated in the strike, and had otherwise engaged actively in the Union's affairs. When laid off by Edler , Bierly remonstrated that she was the oldest woman on the second shift . Edler, however, replied, "I am not doing the laying off, Mr. Phillips is doing that now." On the following day, Bierly returned to the plant in order to receive her accrued wages and interviewed Phillips concerning her lay-off. In response to her re- iterated claim that she was the oldest woman on, the second shift, Phillips replied , " Well, seniority rights don't go any more here." Bierly's testimony is undenied and we find that she then accused Phillips of "having it in for Oak [her husband] and I," and that Phillips replied, " Well, you didn't walk the picket line for 7 weeks for nothing." Bierly named five women junior to her in point of service who were retained by the respondent after her lay-off on November 4, 1937. Of, these, as we have found above, White and Dunkleberger were retained by the respondent because they had numerous persons de- pendent upon their earnings . No reason, however, was given for the retention of the other three women, Rudinsky, Schaeffer, and Weber. In the afternoon of the day on which Bierly was laid off, Phillips called her husband , Oak Bierly , into his office and reprimanded him for making a complaint to one of the floorladies in the quilling depart- ment concerning the lay-off of an employee named Josephine Stradley, a member of the Union. Bierly, a member of the Union's executive committee , was told that the respondent's employment policy was "none of his business." Phillips' father, then the respondent's presi- dent, accused Bierly of "pushing his way into the plant" after the strike, and Phillips himself, during the course of his reprimand, threat- ened Bierly with discharge and informed him that his wife, Sarah Bierly, would be laid off that night. While it is strongly suggested in the above undenied testimony that Sarah Bierly's lay-off was made in consequence of her husband 's union activity, as well as her own, we find that Phillips' statement, "you didn't walk the picket line for 7 weeks for nothing ," clearly indicates the animus which motivated Bierly's lay-off and the failure subse- quently to reinstate her. We find that the respondent, by laying off Sarah Bierly on November 4, 1937, and thereafter refusing to reinstate her, discriminated in regard to her hire and tenure of employment, THE HOLMES SILK COMPANY 109 thereby discouraging membership in the Union. We further find that the respondent, by this action, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. At the time of her lay-off on November 4, 1937, Sarah Bierly was earning on the average between $15 and $16 a week. Unemployed from November 4, 1937, to March 28, 1938, Bierly on the later date accepted employment at substantially the same compensation at a textile mill in Montoursville, Pennsylvania. At the time of the hear- ing Bierly was still employed at the Mountoursville plant, having suf- fered one lay-off from about May'29, 1938, until about July 11, 1938. The Trial Examiner in his Intermediate Report found that Sarah Bierly,- following her lay-off by the respondent, "obtained substan- tially equivalent . employment at Montoursville, Pennsylvania, in March, 1938." We are of the opinion that the Trial Examiner's finding is not supported by the evidence. While in the respondent's employ Bierly operated only 5 or 6 looms, at Montoursville she was required to carry a load of 12 looms. The Montoursville plant is approximately 4 miles from her home, the respondent's plant about 2. During the greater part of her-lay-off preceding the time of the hearing her husband was employed by the respondent. While this personal factor would alone render employment with the respondent more desirable to her,31 the separation of the Bierlys,'who owned an auto- mobile, caused them inconvenience and increased transportation difficulties and expenses. We find that Sarah Bierly did not obtain substantially equivalent employment following her lay-off by the respondent on November 4, 1937.32 , Oak Bierly was first employed by the respondent as a weaver in May, 1934 and had been laid off only once, for a short period, before the strike. On April 13, 1938, Bierly was laid off by Edler. Bierly complained to Edler that he had seniority over certain other employees and requested a transfer to other looms. Edler made the sole reply, "That is my orders." Three days after his lay-off Bierly returned to the plant, after learning that Mrs. Schaeffer, an employee, had been placed on the looms which he had been operating. Although Bierly protested this fact to Phillips, the superintendent made no reply. At the time of his lay-off the respondent retained Aaron Shim and Walter Liddick, married men who, Bierly claimed were junior to him 3i'See Mooresville Cotton Mills v. National Labor Relations Board , 94 F. (2d) 61 (C. C. A. 4), decided March 11, 1940, wherein the Court held that although "primary importance should of course be accorded to a com- parison of working conditions" that "it would not be reasonable to exclude from consideration all the personal factors which would influence the worker's choice." 32 Although the Trial Examiner erred in finding that Bierly had obtained substantially equivalent em- ployment, he recommended , properly we think, that the respondent offer Bierly reinstatement to her former position. See Matter of Eagle-Picher Mining & Smelting Company , et at., & International Union of Mine, Mill, & Smelter Workers, Local Nos 15,17, 107,108 and 111, 16 N. L. R. B. 727. See also Continen- tal Oil Company, a corporation v. National Labor Relations Board, 113 F. (2d) 473 (C. C. A. 10), decided June 13, 1940. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in point of seniority. As above' stated, Shirn had been first employed by the respondent in 1917 and subsequently laid off for poor. work- manship and, as above shown,, Chester Snyder also claimed seniority over Shirn at the time of Snyder's lay-off. While Snyder's testimony gives strength to the :claim by Bierly that Shirn had worked less aggregate time than-had Bierly, We do not find any indicia of discrim- ination against Bierly in the retention of Shirn. With respect, to Liddick, Phillips testified that this employee had been' "in and,put" of the respondent's employ for years. Bierly claimed seniority over the following single` men retained by the 'respondent at* 'the time of his lay-off:. Jack Johnson, Rodney Pennypacker, Mason Larson, Kenneth Edler,,and one "Bill Smith" who -cannot be identified., ',Johnson, Larson, and Edler have been above discussed in reference to Chester Snyder; and we there found the retention of Edler not necessarily significant in the determination of the question of whether 'Snyder had been discriminatorily laid off. As above found, however, Johnson, although at one time'laid off,' was subsequently recalled and was in the respondent's employ, as far as the record reveals, at the time of the hearing. Since Larson and Pennypacker were 'retained after Bierly's third lay-off,. below dis- cussed, in April 1939, we infer 'in, the. -absence, of any evidence to the contrary, that Larson and Pennypacker'were retained for more than a year, following.Bierly's lay-off ,on April-] 2,:.1938. - Married women over wirhom Bierly claimed seniority at the time of his lay-off. on June' 14, 1938; were: - White, Weber, Rudinsky, Kissell, Prince,' and Schaeffer. The circumstances surrounding the retention of each of these employees, with the execution of Prince,33 +have been above discussed.' We do not regard as 'necessarily significant' 'the retention of White and Kissell, who were retained, according to Phillips, because of the "human situation." 34 ' ' On June 3, 1938, Bierly was reinstated in the respondent's employ; following the - intervention of--a Board agent. On June 1.4, 1938, Bierly was again laid off but was' again reinstated on July .1, 1938. Bierly testified without denial.'that'his seniority at' the- time, of his second lay-off',on June 14,' 1938, was !identical to -hisseniority at 'the time of his previous lay-off on April 13, 1938. ' - ,On April 11, 1939, Bierly was again laid off, Of the eight employees over whom Bierly claimed seniority on, this occasion, we regard as significant the retention of Liddick, Pennypacker, Johnson, and Rudinsky.35 33 Phillips testified at the hearing that Prince had been recalled following a lay-off, and that she was to be laid oft again "today " 3+ It may, however, be noted that Bierly , like Snyder , has three minor children 35 On or about May 8, 1939 , Bierly having learned of the reinstatement of two single women , Celia Fields and Clara Auchmutty, subsequent to his lay-off, called^Edler by telephone Edler made the sole reply, "Well, you will have to see Willard (Phillips) about that " ' ' THE HOLMES S1LK COMPANY - Ill' ' Bierly was an.active union member, having served, together with Chester Snyder, on the Union's executive board. Like Snyder, Bierly had refused his signature to the shop-plan petition and had participated in active picketing while on strike. A's stated above in the discussion concerning his wife, Bierly had been reprimanded by the respondent for protesting the lay-off of a union member, and at that time', Bierly was asked by Phillips, "Who do you represent, the C. I. 0.?" During the course of this reprimand Bierly was not only told that the respondent's employment policy was "none of his business" but was threatened with discharge and-was told that his wife would be laid off' on the following night: Although Bierly's first lay-off was ostensibly made for the reason that his warps "were running out," it is undenied that within 3 days after his lay-off of April 13, 1938, an employee junior in service to him, namely, Mrs. Schaeffer, had been placed in charge of the looms which Bierly operated. Under these circumstances, and in view' of the, retention of Johnson, Pennypacker, Rudinsky, Weber, Prince, and Auchmutty, we find that the respondent by laying off Oak Bierly on April 13, 1938; discriminated with regard to his hire and tenure of employment, thereby discouraging membership in the Union. Since similar conditions of seniority pre- vailed at the time of Bierly's second lay-off on June 14, 1938; we find that the respondent, by laying off Oak Bierly on that date also dis- criminated in regard to his .hire and tenure of employment, and thereby discouraged membership in the Union. The retention of Johnson, Pennypacker; and Rudinsky, following Bierly's third lay-off on April 11, 1939, is unexplained in the record. We find, therefore, that -the respondent, by laying' off Oak Bierly on April 11, 1939, discriminated with regard to his hire and tenure of employment, thereby discouraging membership in the Union, `and thereby inter= fering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 oft the Act.' Gilbert Bower was first employed by the respondent-in' 1933, after. 23 years' previous experience in the textile weaving trade. , With the exception of one short lay-off, due to slack business, in the first year- of his employment, Bower had-worke'd steadily for the respondent until the strike,, and thereafter until. he-was' laid off by Edler on April' 10, 1939. Bower was one of the first • employees -to' join the Union. Ile' participated in the strike, and appeared on the picket line six or eight times. 'Thereafter, like the Snyders' and Bierlys, he retained member-' ship in the Union in preference'to the 'Association. Prior to'his lay-off, a conference took place on February 4, 1939, at the Lycoming Hotel in Williamsport,' which 'was attended by repre- sentatives of the Board, the Union, the respondent, and by certain of the employees named in the complaint, including Ruth Bower, the 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wife of Gilbert Bower. At this conference- certain of the lay-offs which were in part responsible for the issuance of the complaint in this proceeding were discussed. Among-others, the preceding lay- offs of Bower's wife, Ruth, were in issue.; On the day following the conference, Phillips summoned Bower in to his office to inquire whether it was true, as Phillips claimed to have been informed, that Ruth Bower, on the occasion of one of her lay-offs, had told another quiller, one Catherine McCoy, that she was glad that she had been laid off- instead of Catherine McCoy. Phillips, told Bower that "Your wife was down to the hearing [the conference] yesterday fighting for her job," and ordered Bower to ascertain whether his wife had made the alleged statement to McCoy. Bower thereafter consulted his wife and returned to Phillips to inform him that his wife denied having made this statement. Phillips, unsatisfied,- then summoned McCoy, but McCoy also denied that Ruth Bower had told her she was "glad" that it was she who had been laid off. Despite this denial, Phillips insisted, "Well, that is just the term she used," and then, turning on Bower, informed him that "From now" on we are going to take care of Williamsport people . . . You and Snyder, you run around together, you carry all the news all the time." While the latter, accusation is somewhat ambiguous, it is clear that the only objection Phillips could have had to Bower's association with Snyder was the fact that Snyder was a union leader. Phillips' assertion that the respondent was-going to "take care of Williamsport people" from then on, made to Bower in contradiction of his previous policy, was clearly directed against Bower, who was a non-resident.3s Bower, aware of Phillips' hostility to him, stated, "I know I am getting blamed for (my wife's) filing these charges (of discrimination)," and in reply was told, "You were the one that caused her to -go down there." On April 10, 1939, the looms which Bower operated became depleted and Bower was laid off by Edler. Since the process of "running out" the warps on the looms took in some instances up to 6 weeks or more, it is probable, in view of the testimony above, that this was the first occasion which presented itself for laying off Bower under color of having no available work for him. We are convinced, however, and find that Bower was laid off because of his active union membership, his association with Chester Snyder, and because of Phillips' con- viction that Bower was responsible for the filing of charges by his wife. It is also suggested by Phillips' accusation that Bower "carried all the news all the time," that Phillips regarded Bower as a ,union liaison contact, who kept the laid-off union members informed,of developments at the respondent's plant. as Bower resided at Jersey Shore, Pennsylvania, some 18 miles from Williamsport The Snyders were also Jersey Shore residents THE HOLMES SILK COMPANY 113 We think it unnecessary in Bower's case to undertake an exhaustive analysis of his seniority rights. Bower testified without denial, and we find, that Bower was the oldest weaver in point of service on the night shift. Since transfers were rarely if ever made from one shift to another, and since the respondent continued to operate a night shift up until the time of the hearing, we find that Bower, a married man, was laid off for reasons made apparent above and in derogation of the respondent's policy of seniority. Any claim that Bower was laid off because of his non-residence in Williamsport is specifically refuted by Phillips' own testimony." We find that the respondent, by laying off Gilbert Bower on April 10, 1939, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union. We further find that the respondent by this act interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Ruth Bower, unlike the employees heretofore discussed, was em- ployed by the respondent as a quiller operator. Bower had had 4 years' experience in this work before entering the respondent's employ in July •1935: Thereafter with the exception of lay-offs due to slack business she worked until the strike began. On,the first day of the strike Bower entered the respondent's plant and attempted to per- suade other women in the respondent's employ to join the strike. On the same day Ludwig, the foreman of the quillers, informed Bower that she need not be troubled by the fact that the employees, with whom she normally drove to work were all on strike. Ludwig promised, in respect to the transportation of employees to and from the respondent's plant, that "We will take care of the ones that work." ' Bower, nevertheless, went on strike the day following this conversation and remained away from the respondent's plant for the duration of the strike. Reinstated on or about October 4, 1937, in accordance with the strike settlement terms, Bower retained employment with the re- spondent only until October 21, 1937, on which date she was laid off by Ludwig. Bower, when ilformed of her lay-off, inquired of Lud- wig, "Why me, when you have these other girls in here?"-girls who, according to Bower, were junior to her in point of seniority. At the hearing Bower testified that Ludwig "couldn't tell me just exactly why, he didn't give no reason," but that Ludwig finally said, "Be- cause you didn't join the company union." Ludwig was not called as a witness at the hearing and consequently Bower's testimony is un- refuted. We have heretofore found that the respondent observed a rule of seniority among weavers which rendered married women liable to u See footnote 21, supra, and the text therein annotated. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lay-off before either single women and men employees. Bower's testimony was undenied, however, that married women and single worneu were considered together for the purposes of seniority in the quilling department. At the time of her lay-off on October 21, 1937, Bower testified that the following women junior to her in point of 'service, were retained in the respondent's employ: Marie Kane, Agnes Tacka, Catherine McCoy, and-Claire Meyer.18 Although Ludwig had promised Bower that her lay-off on October 21, 1937, "would extend for only a couple of days," Bower was not reinstated until November 8, 1938. On January 12, 1939, Ludwig again laid off Bower, but retained at this time, according to Bower, the following employees junior to her in point of seniority: Agnes Tacka, Marie Kane, and Catherine McCoy. Although Bower pro- ,tested this fact to Ludwig, he was unable to advance any reason for Bower's lay-off. Subsequently Bower interviewed Phillips, inquiring, "Why I was always laid off out of my turn." Bower testified that Phillips in reply stated that he had not been informed of Bower's lay-off and inquired whether "there were any girls in here younger than you." Upon being informed that there were, Phillips, according to Bower, called Ludwig into the office and permitted Bower to question Ludwig as to the reasons for her lay-off. Bower testified: I asked him, and he stated that the cotton was running out and there was to be some more girls laid off and I said', "Why always pick on me." . . . He really couldn't give me no reason just why I was laid off out of my turn. Bower's lay-off of January 12, 1939, was still in effect at the time of the hearing. The respondent did not specifically deny Bower's testimony con- cerning the seniority rules applicable to quillers, and introduced no evidence concerning the employment records of the quillers named by Bower as junior to her in point of seniority. At the hearing, however, the respondent introduced in evidence a list of quillers, in which such employees were divided, into "regular" and "extra" classifications. Phillips testified in effect that the list- of "extra quillers," in which Bower's name appears, was maintained for the use of the quiller foremen, and was consulted by them whenever a temporary increase in the number, of quillers became necessary. It is the respondent's contention that Bower, being,an extra quiller, was laid off, reinstated, and again laid off in due order. We cannot accept this contention. In'the list submitted in evidence there appears the name of Eleanor Hamilton. it is admitted that this quiller was hired by the respond- ent after Bower's lay-off of October 21, 1937; and it is therefore ,apparent that the list in,question was not dtawn up until after that se On the respondent's pay roll of August 7, 1937, the name of Claire Meyer does not appear, although the name of Claire Miller is present. THE 1HOLMES, S1LK COMPANY .115 lay-off-111 Moreover, as before found, Bower had demanded the reason for her lay-offs "out of. turn" on October 21, 1937, and again on Jan= nary 12, 1939, but'had received no satisfactory answer. There is no apparent reason why, Ludwig or Phillips did not inform her on those occasions that the respondent considered her as an extra quiller if such a classification then obtained. Irrespective of our-belief that the practice of dividing quillers into regular and extra classifications-was begun, if at all, following Bower's two lay-offs, we find that this contention is immaterial to the issue of discrimination for the reason that the women named in Bower's undisputed testimony as junior .to her in point of service are likewise classified in the respondent's list as extra quillers. In the absence of tiny evidence to the contrary, we find that the respondent retained Marie Kane, Agnes Tacka, and Catherine McCoy after Bower's two lay-offs in derogation of its policy of seniority; and it will be noted that Phillips, after her second lay-off,,, specifically inquired whether "there were any girls in here younger than you," but•upon being in- formed that there were, simply referred the question to Ludwig. The reason for Ludwig's action in laying off Bower, and in retaining Tacka, McCoy, and Kane, appears only in his alleged statement to Bower that "you failed to join the'Company Union." In the absence of any denial of this statement, we find that the statement was made and that the respondent, through Ludwig, twice retained T tcka, McCoy, and Kane when laying off Bower, for the reason that Bower had been and remained an active member'of the Union.4o We find that the respondent by laying off Ruth Bower on October 21, 1937, and again on January 12, 1939 , discriminated-in regard to her hire and tenure of employment, thereby discouraging member- ship in the Union, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The refusal to reinstate Lena Snyder, Lena Snyder, the sister of 6liester Snyder, was never recalled following her participation in the strike. Reference has already been made to a conflict in testimony between Phillips and Chester Snyder concerning the exact terms of the agreement which brought the strike to a close. Phillips testified, and his testimony was not disputed, that the respondent employed 25 fewer persons on the date of the termination of the strife than it had when the strike began on August, J9 Mis Hamilton had been employed by the iespundent ui 19.36 as an uuuia,ued woman She quit 'a of k during that year to be married, and was reemployed a } ear and a half later under the name of 11amndton 40 it was testified that McCoy, although at one time a member of the Union, had returned to Rork during the course of the Union's strike Neither Tacka nor Kane were union members 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 12, 1937,41 and it is apparent from the record that the respondent's business, on the whole and with fluctuations, declined after that date. Under these circumstances we do not find that the respondent discriminated against Lena Snyder by its refusal to offer her rein- statement. Snyder's employment with the respondent aggregated not over 5 months, and she had been laid off prior to the strike for a considerable period of time. Assuming, without finding, that Phillips made an absolute guarantee to the strikers of reemployment within 10 days after the strike was to be ended, we believe, in view of the respondent's policy of seniority, that Snyder if reinstated could have retained employment for a few days at best. We cannot find under such circumstances that the respondent, even though it breached its agreement by failing to recall Snyder, thereby discrimi- nated in regard to her hire and tenure of employment because of her union membership and activity. Accordingly, the allegation in the complaint charging the respondent with such discrimination in respect to Lena Snyder will be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III A and B 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 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 condition which existed prior to the commission of the unfair labor-practices. We have found that the respondent has dominated and interfered with the formation and administration of the Association and has con- tributed support to it. In order to effectuate the policies of the Act and to free the employees of the respondent from such domination and interference, we shall order the respondent to withdraw all recognition from the Association as the representative of any of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment, and to completely disestablish 41 The respondent 's pay roll as of August 7, 5 days before the strike was begun, contained the names of 189 employees. THE HOLMES SILK COMPANY 117 it as such representative.42 Since the contract between the respond- ent and the Association embodying recognition of the Association as such representative was entered into with an organization brought into existence by the unfair labor practices of the respondent, we shall order the respondent to cease and desist from giving ef- fect to the contract heretofore described or any extension or renewal thereof or any other agreement it may have entered into with the said Association in respect to wages, hours of employment, or other con- ditions of employment.43 The contract of November 8, 1937, entered into between the Association and the Union provided for a check-off, and the respondent has deducted from the wages of, those employees who were members of the Association dues for the Association. We shall order the respondent to reimburse the employees who were members of the Association for dues and assessments, if any, which the respondent has deducted from their wages on behalf of the Asso- elation.44 We have found that the respondent has discriminated in regard to the hire and tenure of employment of Chester Snyder, Mrs. Chester Snyder, Oak Bierly, Sarah Bierly, Gilbert Bower, and Ruth Bower by laying them off between or on the dates specified. We shall, accord- ingly, order the respondent to offer each of the said employees im- mediate and full reinstatement to their former positions, without prejudice to their seniority and other rights and privileges, and to make them whole 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 equal to the amount which each normally would have earned as wages, during the periods of such lay-offs, as follows: Mrs. Chester Snyder, from November 1, 1937, to December 27, 1937, and from January 8, 1938, to the date of the offer of reinstatement; Oak Bierly, from April 13, 1938, to June 3, 1938, from June 14, 1938, to July 5, 1938, and from April 11, 1939, to the date of the offer of rein- statement; Chester Snyder from January 14, 1938, to the date of the offer of reinstatement; Gilbert Bower from April 10, 1939, to the date of the offer of reinstatement; and Ruth Bower from October 21, 1937, 42 See Consolidated Edison Co. v National Labor Relations Board, 305 U. S 197, 236, National Labor Relations Board v Pennsylvania Greyhound Lines, Inc , et al , 303 U S 261, National Labor Relations Board v. Pacific Greyhound Lines, Inc , 303 U. S. 372, National Labor Relations Board v Fansteel Metallurgical Corporation, 306 U S 240, Newport News Shipbuilding & Dry Dock Co , et al. v National Labor Relations Board, 60 Sup Ct. 203, National Labor Relations Board v. The Falk Corporation, 60 Sup Ct 307 (1940). 43 National Labor Relations Board v Stackpole Carbon Company, 105 F (2d) 167 (C C A. 3), Dow Chemical Company and United Mine Workers of America, District No 50, 13 N L R B 993 44 Sec Matter of Heller Brothers Company of Newcomerstown and International Brotherhood of Blacksmiths, Drop Forgers, and Helpers, 7 N L R B 646, !flatter of West Kentucky Coal Company and United Mine Workers of America, District No 23. 10 N L. R B 88, Matter of Mt. Vernon Car Manufacturing Company, a corporation and Local Lodge No 1756, Amalgamated Association of Iron, Steel & Tin Workers of North America, affiliated with the Committee for Industrial Organization, 11 N L R B 500, Matter of The Western Union Telegraph Company, a corporation and American Communications Association, 17 N. L. R B. 34, A E' Staley Manufacturing Company, a corporation and United Grain Processors, Local 21490, affiliated with the American Federation of Labor, 22 N L R B 663. 323429-42-vol. 26 9 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to November 8, 1938, and from January 12, 1939, to the date of the offer of reinstatement, less in each case, his or her net earnings 45 during said periods. The respondent alleges, with respect to Sarah Bierly, herein found to have been discriminatorily laid off on November 4, 1937, that it offered this employee reinstatement to her former position during the month of October 1938, and that Bierly refused this offer. Phil- lips testified that he had summoned Bierly to the plant following a conference with an agent of the Board, who is alleged to have stated that charges previously filed with the Board in respect to Bierly's lay- off might be dismissed should Phillips offer her reinstatement. Bierly reported to Phillips when informed by her husband, who was then in the respondent's employ, that Phillips wanted to see her. She testified that she went with the expectation of being offered her former position, but that Phillips instead told her that no looms were available at that time. Bierly testified and Phillips admitted that, in the course of this interview, Phillips questioned Bierly as to her employment at Montoursville, advising her to remain there. Bierly replied, however, "Well, you send for me when you want me." Phil- lips, according to Bierly, then promised that he would do so, although this promise was never fulfilled. In view of the alacrity with which Bierly responded to Phillips' invitation to confer with him, in view of the greater work require- ments at the Montoursville plant, its further distance from her home, and the fact that her husband was then in the respondent's employ,46 we are unable to believe that Bierly refused an offer of reinstatement to her former position. We are of the opinion and find that Phillips 45 By "net earnings" is meant earnings less expenses , such as for transportation , room, and board , incurred by an employee in connection with obtaining work elsewhere than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his obtaining employ- ment 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 Direct relief or home-relief payments are not to be considered as "earnings" and hence are not deductible . Matter of Vegetable Oil Products Company, Inc , a Corporation and Soap and Edible Oil Workers Union , Local No . 18409, 5 N L R. B. 52, amending 1 N L R B 989 Unemployment compensation benefits are similar in purpose and effect to home-relief payment, and , therefore , are not deductible . Matter of Pennsylvania Furnace and Iron Company and Lodge No. 1328, International Association of Machinists, 13 N. L. R B 49. The same is true of relief payments received from a union Matter of Missouri -Arkansas Coach Lines, Inc. and Brotherhood of Railroad Trainmen , 7 N L. R B 186 , Matter of West Kentucky Coal Company and United Mine Workers of America, District No. 23, 10 N. L R B 88. Nor are monies received as disability compensation from the Veterans Administration of the United States Government to be considered "earnings" and deductible. Cf Matter of Louis Hornick & Company, Inc. and Textile Trimming Workers Union, Local 2440, United Textile Workers of America, 2 N. L. R . B 983 , Matter of Anwelt Shoe Manufacturing Company and Shoe Workers' Protective Union, Local No. 80, 1 N. L. R. B. 939. Monies received for work performed upon Federal, State, county, municipal , or other work-relief projects are not to be considered as earnings, but, as provided below in the Order, shall be deducted from the sums due each of the employees herein, 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. Republic Steel Corporation, et. al v. National Labor Relations Board, 107 F. (2d) 472, (C. C A. 3) cert granted as to this point, 60 Sup. 1072 , enforcing as modified as to other issues Matter of Republic Steel Corporation and Steel Workers' Organizing Committee, 9 N. L. R. B. 219. 44 These factors are considered in Section III B above in relation to the issue of substantially equivalent employment therein discussed. THE HOLMES SILK COMPANY •119 either failed to offer her reinstatement or so clouded his offer with advice to retain employment at Montoursville that Bierly did not understand that an offer was being made. Having discriminatorily laid off Bierly, it was incumbent upon the respondent to offer her full and unequivocal reinstatement to her former position. We find that the respondent has not done so, and, accordingly, we shall order the respondent to offer her immediate and full reinstatement to her former position, without prejudice to her seniority and other rights and privileges, and to make her whole for any loss of pay she may have suffered from November 4, 1937, the date upon which she was discriminatorily laid off, to the date of the offer of reinstatement, less her net earnings 47 during said period. 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 and Newberry Textile Work- ers' Association are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and admin- istration of, and by contributing support to, Newberry Textile Work- ers' Association, 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 and terms and conditions of employment of Chester Snyder, Mrs. Chester Snyder, Oak Bierly, Sarah Bierly, Gilbert Bower, and Ruth Bower, thereby discouraging membership in the Textile Workers Union of America, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent 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 has not discriminated in regard to the hire and tenure of employment of Lena Snyder within the meaning of Section 8 (3) of the Act. - 47 The Trial Examiner found that Sarah Bierly had secured substantially equivalent employment at Montoursville, Pennsylvania He recommended in his Intermediate Report that the respondent offer Bierly immediate and full reinstatement and back pay from the date of the discriminatory lay-off . As stated above, we do not agree with the Trial Examiner 's conclusion that Sarah Bierly secured substantially equiv- alent , employment. Since the Trial Examiner recommended that Sarah Bierly be offered reinstatement with back pay, the respondent has not been prejudiced by the Examiner 's finding and, accordingly, we shall order that she be made whole from the date of the respondent's discrimination against her to the date of the offer of reinstatement. Cf. Matter of Virginia Electric & Power Company and Transport Workers Union of Amer- ica, 20 N. L. R. B. 911. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the basis of the foregoing 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 re- spondent, The Holmes Silk Company, and its officers, agents, succes- sors, and assigns shall: 1. Cease and desist from: (a) In any manner dominating or interfering with the administra- tion of Newberry Textile Workers' Association, or the formation or administration of any other labor organization of its employees, or contributing support to Newberry Textile Workers' Association or any other labor organization of its employees; (b) In any manner giving effect to its contract heretofore described with Newberry Textile Workers' Association, or to any extension, renewal, modification, or supplement thereof, or to any successor contract with Newberry Textile Workers' Association which may now be in force; (c) Discouraging membership in Textile Workers Union of America or any other labor organization of its employees, or encouraging mem- bership in Newberry Textile Workers' Association, or any other labor organization of its employees, by discharging, laying off, or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purposes of collective bargaining and other mutual aid or protection as guaranteed in Section 7 of the National Labor Rela- tions Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from Newberry Textile 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 other conditions of em- ployment, and completely disestablish Newberry Textile Workers' Association as such representative; (b) Refund to each employee from whose wages it deducted or checked off dues in the Newberry Textile Workers' Association the amount of such check-offs; (c) Offer to Chester Snyder, Mrs. Chester Snyder, Oak Bierly, Sarah Bierly, Gilbert Bower, and Ruth Bower immediate and full reinstatement to their former positions without prejudice to their seniority and other rights and privileges; THE HOLMES SILK COMPANY 121 (d) Make whole the following employees for any loss of pay they may have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment by payment to, each of them of a sum of money equal to that which he or she would have earned as wages during the following periods: Mrs. Chester Snyder, from November 1 to December 27,'1937, and from January 8, 1938, to the date of the offer of reinstate- ment; Oak Bierly, from April 13 to June 3, 1938, from June 14 to July 5, 1938, and from April 11, 1939, to the date of the offer of reinstatement; Chester Snyder, from January 14, 1938, to the date of the offer of reinstatement; Gilbert Bower, from April 10, 1939, to the date of the offer of reinstatement; Ruth Bower, from October 21, 1937, to November 8, 1938, and from January 12, 1939, to the date of the offer of reinstatement; and Sarah Bierly, from November 4, 1937, to the date of the offer of reinstatement; less, in each case, his or her net earnings 48 during such periods; deducting, however, from the amount otherwise due each of them, monies received by each of them during said periods for work per- formed upon Federal, State, county, municipal, or other work-relief projects during the period for which back pay is due them under this Order, and 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 such work-relief projects; (e) Post immediately in conspicuous places at its plant, and main- tain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), and (d) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order; and (3) that the respondent's employees are free to become or to remain members of Textile Work- ers Union of America, and that the respondent will not discriminate against any employee because of membership or activity in that organization; (f) Notify the Regional Director for the Fourth Region, in writing, within ten (10) days from the date of this Order, what steps the re- spondent has taken to comply herewith. 48 See footnote 45, supra 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has discriminated in regard to the hire and tenure of employment of Lena Snyder, within the meaning of Section 8 (3) of the Act. MR. WILLIAM M. LEISERSON took no part in the consideration Of the above Decision and Order.