Manville Jenckes Corp.

In the Matter Of MANVILLE JENCKES CORPORATION and WOONSOCKET RAYON COMPANY and INDEPENDENT TEXTILE UNION OF AMERICA Case No. C-1659.-Decided March 17, 1941 Jurisdiction : rayon manufacturing industry. Unfair Labor Practices In General: employers held responsible for the abortive back-to-work movement undertaken by certain, of its employees and for the activities of the local Chamber of Commerce furthering said movement ; parent corporation held responsible with its subsidiary for the unfair labor practices of the subsidiary. An employer is responsible under the Act for anti-union action prosecuted with its connivance or assistance by other persons or agencies in, the community even though such persons or agencies have no pecuniary stake in the employer's business. Interference, Restraint, and Coercion: soliciting individual employees during the pendency of a strike to return to work on its own terms, in disregard of the decision of the union and authority of the union leadership; promising rewards if they so returned; sponsoring and supporting back-to-work move- ment ; causing and joining with the local Chamber of Commerce in the publi- cation of anti-union newspaper advertisements aimed in part at causing striking employees to repudiate their union and return to work; seeking through said advertisements to induce public action against its employees' union ; undercutting the authority of union ; threatening employees with loss of employment if they remained on strike ; electioneering with respect to and interfering with a proposed consent election to determine representatives Discrimination: refusal to reinstate striking employees. Strike economic in origin held converted into unfair labor practice strike by employers' failure to bargain in good faith and became 'a remedy "paral- lel with recourse to the Labor Board," making employer's right to select employees at termination of the strike "vulnerable." Collective Bargaining: designation of majority by membership in union ; desig- nation not affected by renunciations caused by employer's unfair labor prac- tices-failure to negotiate in good faith : entering into negotiations with no sincere intention to end difference; failure to make concession or counterpro- posals; failure to have representative available following president's depart- ure for Europe ; failure to substantiate position with respect to financial ability to grant wage increases ; effecting change in wages after refusal to do so upon request of labor organization; insistance upon acceptance of terms discrediting the labor organization; failure to negotiate during shut- down. - Assertion of doubt as to union majority as excuse for refusal to bargain after meeting with union for five months on the assumption of existing majority constitutes a refusal to bargain within the meaning of Section 8 (5). 30 N. L. R. B., No. 60. 382 MANVILLE JENCKES CORPORATION 383 Remedial Orders : employers ordered to bargain collectively; reinstatement and back pay awarded striking employees discriminatorily refused reinstatement and discharged ; employees who did not desire reinstatement and another em- ployee who desired reinstatement only on a condition which he was not entitled to impose, not ordered reinstated and back pay not awarded since it did not appear when they no longer desired reinstatement ; employee who refused to accept reinstatement to position different from that which he held prior to the strike held not to preclude him from reinstatement to his former position. Definitions Parent corporation acting "in the interest of an employer" viz : the sub- sidiary corporation, when engaging in unfair labor practices, held an employer within the meaning of Section 2 (3) of the Act. Evidence Held : Evidence of renunciation of union authorization in the presence and at the instance of an employer, uncorroborated by other facts is of doubtful verity and of little evidential value since the polling of witnesses under such circumstances is likely to interfere with a free expression of choice of representatives. Unit Appropriate for Collective Bargaining : all employees excluding office, clerical, and supervisory employees, laboratory workers, employees in the rayon inspection department, analysts, employees in the spinnerette laboratory, candle filter wrappers, truck drivers, janitors, and nurses. Mr. Albert J. Hoban, for the Board. Edwards cC Angell, by Mr. Kirk Smith, Mr. Elmer E. Tufts, Jr., and Mr. Edward R. Richards, of Providence, R. I., Mr. John R. Higgins, of Woonsocket, R. I.; and Mr. Joseph B. Keenan, of Washington, D. C., for the respondents. Grant & Ango ff, by Mr. Samuel E. Ango ff, of Boston, Mass., for the Union. Mr. Malcolm A. Hoffmann, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Independent Tex- tile Union of America,' herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the First Region (Boston, Massachusetts), issued its complaint, dated March 29, 1940, against Woonsocket Rayon Company, Woon- socket, Rhode Island, herein at times referred to as the Rayon Com= pany, and against Manville Jenckes Corporation, Manville, Rhode ' Sometimes referred to in the record as the I T U 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Island, the two corporations being herein at times collectively called the `respondents, alleging that the respondents had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint and notice of Bearing were duly served upon the respondents and the Union. At the, hearing, mentioned below, the complaint was amended in certain respects. The complaint, as amended, alleged in substance (1) that the Rayon Company is a subsidiary corporation of, and is owned, operated, and controlled by Manville Jenckes Corporation; that on or about Feb- ruary 23, 1939, and thereafter, the respondents refused to bargain col- lectively with the Union, in that the respondents at various specified times entered into negotiations with the Union in bad faith and without the purpose and intention of bargaining collectively, and on and after September 21, 1939, refused to meet further with the Union for pur- poses of collective bargaining, although the Union on or about Feb- ruary 20, 1939, and thereafter, was the statutory representative of all employees of the Rayon Company employed at its Woonsocket-plant, exclusive of office, clerical, and supervisory employees and laboratory workers, and said employees constituted a unit appropriate for collec- tive bargaining; (2) that from on or about March 1 to March 25, and from on or about September 1 to September 25, 1939, and there- after, the respondents approached employees individually concerning working conditions instead of approaching them through the Union, then acting as their duly designated representative, and solicited said employees to return to work during the pendency of a strike being conducted by the Union; (3) that on or about March 17, 1939, the respondents initiated, supported, and conducted a "Back-to-Work" movement, and caused a "Back-to-Work" petition to be circulated among the employees atthe Woonsocket plant for the purpose of break- ing said strike and avoiding bargaining collectively with the Union; (4) that on or about February 20, March-17, April 20, and September 20, 1939, and between said dates and thereafter, the respondents made, issued, and caused to be made and issued to employees at the Woon- socket plant, oral and written statements and newspaper advertise- ments discouraging said employees from becoming and continuing to be members of the Union; (5) that on or about September 23, 1939, the respondents advised and instructed these plant employees to vote against the Union in any election conducted for the purpose of ascer- taining whether the Union represented a majority of said employees, warning them that if they voted for the Union the Woonsocket plant would close; (6) that by their aforesaid acts and conduct, and by their unfair labor practices, the respondents caused to be continued and MANVILLE JENCKES CORPORATION '385 prolonged a strike of the employees at the Woonsocket plant; that on or about October 19, 1939, the Union terminated the strike ; that on or about October 23, 1939, and thereafter, 28 named employees,2 and on or about November 2, 1939, and thereafter, 14 other named employees.3 applied for reinstatement to their positions at the Woonsocket plant; that on or about October 23, 1939, the respondents discharged said 28 named employees, and on or about November 2, 1939, discharged said 14 other named employees, and have since refused to reinstate all said employees to their former positions, because of their membership in and activities in behalf of the Union, and because they engaged in con- certed activities with other employees at the Woonsocket plant for the purpose of collectively bargaining or other mutual aid or protection, the respondents thereby discriminating in regard to their hire and tenure of employment and discouraging membership in the Union; (7) that by the foregoing acts, and each of them, and by other acts and conduct, the respondents interfered with, restrained, and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act.' On May 10, 1940, the respondents each filed an answer to the com- plaint, as amended, denying that they had engaged in any of the unfair labor practices alleged in' the complaint, as amended. Manville Jenckes Corporation averred that it was without knowledge as to whether the bargaining unit alleged in the complaint, as amended, was appropriate, or whether the Union represented a majority of the Woonsocket plant employees within an appropriate collective bargain- ing unit. The Rayon Company in its ansrier admitted the appropri- ateness of the unit alleged in the complaint, as amended; but at the' hearing amended its answer by defining the laboratory workers whom it would agree were excluded from the unit to be the trained chemists, technicians, and executives of the plant laboratory. ' Pursuant to notice a hearing was held at Woonsocket, Rhode Island, on May 16, 17, 20, 21, 22, 23, 24, 27, 28, 29 and June 3, 4, 6, 7, 10, 11, 12, 13, 14, 18, 19, 20, and 21, 1940, before William B. Barton, the Trial Examiner duly designated by the Board. The Board, the Union, and 2 The names of these employees with spelling conformed to the proof are • Stanley Bokoski , Stephen Bokoski , E Boucher, John Chmiel , Joseph Curodeau , Michael Czarn, Roland Desaulmers , Heive Desaulniers , Leo Garneau , H Greenhmd , Stephen Greenup, Philippe Guertin. Anthime Guilbault, Paul Hetu, Rafael Lambe, David LaValle, Edward LeClerc, Paul Mandeville, Jr, Henry Martell, George Morel, Walter Pasek, Leo Renaud, Harvey Rabidoux , Roland Rocheford, Arthur Sheehan , Raymond Sheehan , John Solrna; Stephen Wecal 3 The names of these emplo3 ees with spelling conformed to the proof are : Theodore Beauchamps, Napoleon Durand, Noel Giguere, Carl Handrickson, John IIoothay, Carl'I,educ, Florian Marquis, John Nordberg, Carl Peterson, Peter Pichie, Edmund Remillard, Magliore Savoie. Alfred St Germain, David Wilson 4 The complaint, as amended , also alleged that the respondents discriminatorily dis- charged and refused reinstatement to William St. Peter in violation of the Act. At the hearing the allegations of the complaint, as amended , in this respect were stricken upon motion of counsel for the Board 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondents were represented by counsel 5 and- participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made rulings on motions and on objections to the admission of evidence. He denied a motion of the respondents made at the close of the Board's case that the complaint, as amended, be dismissed in so far as it alleged that Manville Jenckes Corporation had engaged in unfair labor practices.6 A similar motion made at the close of the hearing was denied in the Trial Examiner's Intermediate Report, mentioned below. A motion of the Board to amend the complaint in certain respects was granted in the Intermediate Report. The Board has reviewed the foregoing rulings of the Trial Examiner and finds that no prejudicial errors were committed. These rulings are hereby affirmed. On August 7, 1940, after the hearing, the Trial Examiner directed that certain corrections be made hl the record in accordance with a stipulation previously filed herein by the parties. The respondents and the Union submitted to the Trial Examiner briefs in support of their respective positions! Thereafter, the Trial Examiner filed his Intermediate Report, dated August 15, 1940, finding that the respondents had engaged in and were engaging in unfair labor practices, within the meaning of Section 8 (1), (3), and (5) of the Act, and recommending that the respondents cease and desist from their unfair labor practices, that they bargain collectively upon request with the Union as the statutory representa- tive of employees at the Woonsocket plant, that they offer to 38 named employees reinstatement to their former positions at that plant' and make them whole for loss of pay suffered by reason of the respondents' unfair labor practices,' and that they take certain other action to remedy the situation brought about by the unfair labor practices which he found. On October 10, 1940, the Rayon Company filed exceptions to'the Intermediate Report-and to the record,8 and on October 11, 1940, the respondents submitted a brief in support thereof. On November 7, 1940, pufsuant to notice, a hearing was held before the Board at Wash- ington, D. C., for the purpose of oral argument. The respondents and the Union appeared, presented oral argument, and otherwise partici- pated in the hearing. On November 19, 1940, the respondents sub- mitted a Supplemental Memorandum, and on November 28, 1940, the Union, a Reply to Supplemental Memorandum, in support of their positions. The Board has considered the exceptions of the Rayon The respondents were jointly represented by counsel s See Section IV, infra The names of these employees are set forth in Appendices B and C , attached hereto and made a part hereof 3 No exceptions were filed by Manville Jenckes Corporation I UANV'ILLE JENCKES CORPORATION 38; Company to the Intermediate Report and to the record, the briefs and arguments of the respondents in support thereof and of the Union in opposition thereto, and, except in so far as they are consistent with the findings, conclusions, and order set forth below, finds them to be with'- cut merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. TILE BUSINESS OF THE RESPONDENTS Woonsocket Rayon Company is a Rhode Island corporation, engaged in the manufacture, sale, and distribution of rayon yarns in cake form. It maintains a manufacturing plant at Woonsocket, Rhode Island, where the rayon yarns which it sells are produced. It is a wholly owned subsidiary corporation of Manville Jenckes Corporation, a Delaware corporation, which manufactures, sells, and distributes cotton and rayon\woven fabrics. Officers of Manville Jenckes Corporation com- prise all the officers and directors of the Rayon Company.° As set forth hereinafter, Manville Jenckes Corporation directs and controls the labor policies and relations of the Rayon Company 1e During the year ending January 31, 1939, the Rayon Company purchased for use in production at its Woonsocket plant the following quantities of raw materials : more than 2,400,000 pounds of pulp-valued in excess of $100,000, more than 1,000,000 pounds of carbon bisulphide valued in excess of $42,000, more than 4,400,000 pounds of sulphuric acid valued in excess of $35,000, and more than 2,800,000 pouunds of caustic soda valued in excess of $61,000, approximately 59 per cent by volume and 85 per cent by value of which were shipped to the plant by common carrier from points outside the State of Rhode Island. During this same period the Rayon Company sold more than 2,400,000 pounds of rayon yarn in cake form, valued in excess of $900,000, ap- proximately 99 percent of which were sold and shipped from the Woonsocket plant to Manville Jenckes Corporation at Manville, Rhode Island. During the,yeor ending January 31, 1940, the Rayon Company purchased for use in production more than 1,500,000 pounds of pulp valued in excess of $57,000, more than 420,000 pounds of carbon bisul- phide valued in excess of $16,000, more than 1,700,000 pounds of sul- phuric acid valued in excessof $13,000, and more than,1,150,000 pounds of caustic soda valued in excess of $23,000, approximately 65 percent by volume and 88 per cent by value of which were shipped to the One of these officers , Baker, died May 14 , 1940 , prior to the hearing. Before his death the Rayon Company had four officers and four directors , all of whom were also officers of Manville Jenckes Corporation 10 See Section IV, in fOa 440! . a---42 Vol .10---26 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Woonsocket plant from points outside the State of Rhode Island. During this period the Rayon Company sold more than 1,000,000 pounds of rayon yarn in cake form valued in excess of $400,000,, approximately 99 per cent of which likewise were -sold and shipped to Manville Jenckes Corporation at Manville, Rhode Island. It thus is shown and it is admitted that Manville Jenckes Corporation has been for practical purposes the sole purchaser of the rayon yarns produced by the Rayon Company., Manville Jenckes Corporation maintains ,t plant at Manville, Rhode Island, where it manufactures its cotton and rayon woven fabrics. The principal raw materials used by it in the course of manufacture are raw cotton; cotton card strips, rayon yarn and rayon staple fibre.,' During the year ending January 31, 1939, Manville Jenckes Corpora- tion purchased more than 3, 800,000 pounds of cotton valued in excess of $440,000, more than 1,600,000 pounds of cotton card strips valued in excess of $130,000, more than 3,200,000 pounds of rayon yarn valued in excess of $1,380,000, and more than 460,000 pounds of rayon staple fibre valued in excess of $115,000, approximately 74 per cent by volume and 52 per cent by value of which were shipped to the Manville plant' from points outside the State of Rhode Island. During this period it sold finished products valued at approximately $5,031,427, approxi- mately 95 per cent of which were sold and shipped from the Manville plant to customers at points outside the State of Rhode Island. Dur- ing the year ending January 31, 1940, the Manville Jenckes Corpora- tion purchased more than 7,300,000 pounds of cotton valued in excess of $950,000, more than 1,800,000 pounds of cotton card strips valued in excess of $159,000, more than 5,200,000 pounds of rayon yarn valued in excess of $2,400,000, and more than 850,000 pounds of rayon staple fibre valued in excess of $218,000, approximately 93 per cent by' vol- ume and 89 per cent by value of which were shipped to the Manville plant from points outside the State of Rhode Island. During this period it sold finished products valued at about $6,800,000, approxi- mately 95 per cent of which were sold and shipped from the Manville plant outside the State of Rhode Island. II. THE ORGANIZATION INVOLVED Independent Textile Union of America is an unaffiliated labor or- ganization, maintaining headquarters at Woonsocket, Rhode Island, and comprising in membership all classes of workers, including those employed by the Rayon Company. In February 1939 the Union formed a local known as the .Woonsocket Rayon Local of the I. T. U. admitting to membership persons employed by the Rayon Company at its plant in Woonsocket. 11 It also uses some wool and flax. MANVILLE JENCKES CORPORATION III. THE UNFAIR LABOR PRACTICES OF THE RAYON COMPANY 389 A. The refusals to bargain with the Union; interference, restraint, and coercion 1: The strike of the spinners on February 19, 1939,_ and affiliation of the plant employees with the Union On February 17, 1939, the spinners employed in the spinning de- partment of the Woonsocket plant, acting through an employee committee, requested the Rayon Company for an increase in wages and a- decrease in the work load of their department.12 The Com- mittee informed the president of the Rayon Company, one Lockhart, that the employees were desirous of receiving the Company's reply before the morning rotation of plant shifts 2 days later.13 Lockhart asked that the Rayon Company be given more time, but this was refused by the Committee, after consultation with the spinners." Within an hour after receipt of the employees' request, Lockhart communicated with Manville Jenckes Corporation and explained the situation to the president of that corporation. The next day the -Rayon Company, anticipating a possible strike of the spinners, cur- tailed by 10-percent production preparations in the chemical depart- ment of the plant. It made no effort, -however, to communicate either with the spokesman of the spinners' committee,, one Greenup, who was -at work in the plant or with the committee itself. The following,day, at the change of shifts, the committee was informed by the overseer of the spinning department that the Company had made no reply. 'Thereupon the employees in the spinning department ceased their work and went on strike. Because of the functional interrelation .and continuity of operations throughout the plant, the stoppage of work in the spinning department resulted in an immediate cessation ,of all production work at the plant. We find that the strike of the -employees in the spinning department on February 19 was economic in origin, brought about by the desire of these employees to obtain through concerted action an amelioration of their working conditions. As more particularly set -forth hereinafter, production at the plant remained in abeyance until on or about September 23, 1939. On the -afternoon of February 19 substantially all the employees ,of the Rayon Company, including the spinners, met in a hall off the premises of the plant, and, upon unanimous agreement of those pres- '2 Prior thereto, in 1938, the Rai on Company had cut the wages of spinners, and by -changing its manufacturing process had increased the pioduction load. 13 The record is not clear as to whether the employees sought a reply to their request -or merely an undertaking by the Rayon Company to negotiate with the committee concern- ing the request '* One Greenup telephoned Lockhart's home the evening of February 14 and left woid that the time fixed was unchanged Lockhart testified that that evening his maid received an anonymous call to this effect and delivered the message to him. I 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent, took steps toward organizing themselves into a local of the Union to be known as the Woonsocket Rayon Local of the I. T. U. Between February 19 and February 27, 1939, at least 158 employees of the Rayon Company applied for membership in the Union, and thereby designated that' labor organization as their collective bargaining agency. 2. The appropriate unit The complaint, as amended, alleges that all persons employed at the Woonsocket plant, excluding office, clerical, and supervisory em- ployees, and laboratory workers, constitute a unit appropriate for collective bargaining. This unit conforms substantially to the unit that we have found appropriate for collective bargaining in other cases.15 We find that this unit was and is, in general outline, appro- priate ,for collective bargaining. The Rayon Company concedes the appropriatenes's in definition of the alleged collective bargaining unit, but questions the propriety of excluding certain employees from and including others within this unit. It urges that 10 employees," of the control laboratory, 4 of whom work in the rayon inspection department and the remaining 6 of whom are denominated as "analysts" come and have been within the general unit and may'not properly be excluded therefrom. Those in the rayon inspection department inspect samples of rayon yarn gathered daily from regular production. One determines by ma- chine the tensile strength of the yarn; another, the capacity of the yarn to stretch; the two others visually inspect samples. The analysts perform certain laboratory tests to analyze the viscose solution and collect other chemical data. Al110 employees work in rooms separated from production workers. All except one 11 are paid on a salary basis instead of on the hourly rte paid the production and maintenance workers, and the one who is not paid a salary is an employee trans- ferred from another department to the inspection department and her basis of pay has not yet changed. The Union does not claim to, represent these workers. We are of the opinion that the employees who work in the rayon inspection department or who work as analysts do not properly come within the.unit which is essentially composed 15 Matter of Grayson Heat Control, Ltd and United Elcctiical, Radio t Machine Workers of America, Local No. 1421, C 1 0 , 14 N . L R B 491 ; Matter of Southern Chemical Cotton Company and Textile Worriers Ooganozinq Committee, 3 N L R B 869 , Cf Matter of U S Testing Co., Inc and Federation of Architects, Engioieeis, Chemists ct Technicians, C 1 0 , 5 N L R B 696. 699; Matter of Hoffman Beverage Company and Joint Local Executive Board of International Union of United Breicery, Flour, Cereal, and Soft Drink Workers of America, 3 N. L. R. B. 584; but See S Matter of the B F Goodrich Company and United Rubber Worriers of America, Local No 43, 3 N L R B 420. "These 10 are Claire Gobeille, Elizabeth Breault, Rachel Martel , Mary Corrievi, Anna, Cove , George Lennox , John Gi ay, Vito I'ierannunzi , Ralph Whipple, and Elizabeth Conley._ 17 The name of this employee is Mary Cori levi MANVILLE JENCKES CORPORATION 391 of production workers. Their work, and consequently their interests as employees, are those of laboratory workers, who, the parties agree, are and were properly excluded from the general unit. Here, this difference in employee interest between the inspection department employees or analysts and the production employees is further shown by the separation of work sites and the variation in method of com- pensation.'s For similar considerations, the employees of the spin- nerette laboratory are, and have been, without the general unit.19 These employees work in a room partitioned from the rest of the plant, where they clean, dry,. and assemble spinnerettes. They are paid on a salary basis. The Union has not sought to represent them. The differences in their employee interests resulting from differences in situs of work and method of compensation establish the impropriety of their being considered within a unit of production workers, par- ticularly where organization has excluded them. The Union states that the following employees, Louise Gauvin, W. Pelletier, John Cornell, J. Wheeler, and G. Lemieux, are not within the unit. The respondents agree that Pelletier is not within the unit, but urge that the others are.20 Gauvin's job is -to wrap cloth around the core of the candle filter before the core is inserted into the filter, and to cut cloth into sizes necessary for use in the filtering process in the plant. She works in a room adjacent to the spinner- ette laboratory, separate from the other employees, and is paid on a salary basis. We find that Gauvin appropriately, is not and has not been within the unit. John Cornell, a machinist, works nmder the supervision of _ one of the Rayon Company's research technicians. He is paid, however, on an hourly basis as are other machinists, and works in the same machine shop using the same lathes and tools. Wheeler and Lemieux are employed in the water plant, where they are charged with the'task of sending water through automatic feeds., Wheeler, also, checks in employees at the gate on the midnight shift, a routine duty occupying only a small part of his time and insufficient to distinguish him from other employees. The work done by Wheeler and Lemieux is an integral part of the production process and they are paid on an hourly basis as are other production employees. Conse- quently, Cornell, Wheeler, and Lemieux, because of the close approxi, oration of their interest to those of the plant production employees, properly come, and were, within the unit we have found in general to be appropriate. . The record contains some controversy as to whether John Chad- wick, Anna Shea, Edward Demarais, Neal Blackwood, and Morris i8Cf Matter of ,Southern Chemical Cotton Company 'and Textile Workers Organizing 'Committee, 3 N. L. R. B 869. 10 The record discloses the names of two such employees . Rena Remillard , Priscilla Powers. 11 Pelletier is a truck driver, the only one at the plant , and clearly is not within the unit. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Norman come Within the general unit. John Chadwick is employed as office janitor to clean the office at the plant, wash windows, and cut, grass. He works alone at night and 'is paid on a salary basis. Anna Shea is the plant nurse. The duties of Demarais and Blackwood, hereinafter set forth'21 are of a supervisory and clerical nature. The Union states that these employees, apart from Norman, are not within the above unit, and the respondents in their brief agree that there is a reasonable basis for not finding these employees within such unit. We find these four employees to be and to have been outside the unit. The record does not disclose Norman's. duties, but it does reveal that Norman signed a notice to refrain from discussing union activities, which was circulated by the Rayon Company among its supervisory employees and others close to management. In the absence of other evidence concerning Norman's duties, we find that Norman is a super- visory employee and is excluded from the unit. The Union also states that, eight employees 22 whose names appear on the pay roll of February 18, 1939, are not in the unit because of the temporary character of their employment, but contends that three ,other temporary employees whose mimes do not appear on the pay roll of February 18 are within the unit.23 There appears to be no substantial basis for differentiating between these two groups of temporary employees. In accordance with the usual rule, we find that all these temporary employees were not within the unit.24 We also find that another employee, Leo Tremblay, was a temporary employee, and that he, too, was not within the unit. We find that all employees of the Rayon Company at the Wooli- socket plant excluding office, clerical, and supervisory employees, laboratory workers, employees in the rayon inspection department, analysts, employees in the spinnerette laboratory, candle filter wrap- pers,25 truck drivers, janitors, and nurses, constitute, and at all times herein material constituted, a unit appropriate for the purposes of collective bargaining, and that said unit insures to employees of the Rayon Company the full benefit of their rights to self-organization and 'to collective bargaining and otherwise effectuates the policies of the Act. 21 See note 45, infra These eight are A. Gourchesne , W. Etherington , J. Lowandoski , R. Brown, H Woolfall, T. Weldon , C. Dixon, and J . Redman. xs These three are J. Boucher, Fleur-Ange La Pierre, and R. Lamontagne ,u See e. q Matter of Southern Chemical Cotton Company and Textile Workers Organiz- ing Committee, 3 N. L.,R B. 869 , 875: Matter of Superior Felt and Bedding Company and Local No 173 International Upholsterers Union , affiliated with the American Federation of Labor, 14 N L R B. 835, 837-8; Matter o f Wilson d Co , Inc and Local No. 37, United Packinghouse Workers of America, of P W. 0. C. affiliated with C. I. 0., 15 N. L. R. B. 195, 199. - 25 The term "candle filter wrapper" designates the employee who wraps cloth around the core of the candle filter and cuts cloth for use in the filtering process. MANVILLE' JEIVCKES CORPORATION 393 3. Representation by the Union of a majority in the appropriate unit The two hundred and two employees within the unit above found to be appropriate were employed by the Rayon Company on February 18, 1939,26 the day preceding the strike of the spinners. Because of the cessation of production at the Woonsocket plant from February 19' until September 23, 1939, no production work was performed at the plant during this period by any of the 202 employees. Each of the plant employees save possibly nine,2' retained after February 19 his or her status as an employee of the Rayon Company 28 As stated below, on or after September 23 the plant employees returned to work, with the exception Iof certailf employees in the spinning department who were replaced by other employees under circum- stances more particularly hereinafter set forth.21 For reasons there stated the spinners who were replaced, were entitled to their positions,, upon the application which they made 30 Hence, their replacement did not affect their continuing status as employees.31 As already set forth, from February 19 to February 27, 1939, 158,. that is, a substantial majority, of the 202 employees applied for mem- bership in the Union '32 and thereby designated the Union as their representative for, the purposes of collective bargaining.33 The respondents contend that 9 of the 158 employees never desired to be represented by the Union,34 and that 34 others 35 at various times after designating the Union repudiated respectively such designation by 7" This figure includes J. Derosler whose name does not appear on the February 18 pay roll, but who bad been given a leave of absence by the Rayon Company because of illness. It does not include Albert Boissy who was discharged by the Company prior to the strike zr A 'contention of the respondents that nine employees obtained other substantially equivalent employment is treated hereinafter. 28 See Section 2 (3) of the Act . See also, N. L. R. B. v. Mackay Radio & Telegraph Co., 804 U. S. 333. 26 See Section III B , infra. "" See Section III B, infra nThe M H. Rtitzwoller Company v . N. L. R B, 114 F. ( 2d) 432 (C. C. A 7) enf'g. Matter of The M. H. Rttzwoller Company America, Local No 28 , 15 N L R B. 15 and Coopers' International Union of North 82 The parties agreed that 127 union membership application cards, signed by employees within the above unit, bear authentic signatures The authenticity of signatures of em- ployees in the unit on other cards was established by interrogation at the hearing, as, well as by the corroborative evidence of union dues , attendance and strike benefit records. The names of the 158 employees are set forth in Appendix A attached hereto and part hereof - 13 N. L. R. B. v Somerset Shoe Company , 111 F. ( 2d) 681 ( C. C A. 1 ), enf'g as mod. Matter of Somerset Shoe Company and United Shoe Workers of America, 5 N. L. R. B. 486. 84 These nine employees are Gaetane Czarn, Margaret Desbiens , C Dicandia, Aime Fortier, Theresa Haggert, William Kirkby, Henry O'Rourke, Adelard Savoie, Sr., and Joseph Turner a; These 34 employees are Edmund Ballou , Theodore Beauchamps , William Belisle, Romeo Bertrand , Theodore Blanchard , Albert Clark, Jr , Earl Cornell, Lester Cornwall, Florida Czarn . Stanley Czarn , Ellis Desbiens, Alcide Giguere , Francis Ragan, Earl Kempton, Joseph Lacourse, Henry Leblanc , Pasquale Lonbardi , Ernest Marien, Ronald McDonald, David Poirier, A. Monk , Walter Pasek, Rene Paradis , Carl Peterson , Mary Rominyk, Brad- ford Seagrave , -Edward Sherman, Aldy Tessier , , Frank Thibeault ;, Stacia Uruski, Rene .Voyer, George Walker, Mary Wecal , and Frederick Woodworth. I 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD repudiating their membership in the Union. Since a majority of -the 202 employees designated the Union as their bargaining agency, whether or not these 43 employees did so, the contention of the respond- ents is without materiality. Moreover, we are satisfied, and we find, that the defections of these employees from the Union, and their repudiations and withdrawals of membership in or designation of the Union, to the extent that they occurred, resulted from, and were attrib- utable to the unfair labor practices of the respondents hereinafter found, in refusing to bargain collectively with the Union, and in interfering with, restraining and coercing the plant employees in the exercise of rights guaranteed them under the Act 36 The true desires of the 43 employees must be presumed to have continued to be, and at all times material since their applications for union membership, for representation through the Union, and we so find. Such defec- tions, repudiations, and withdrawals could not affect the designation by these employees of,the Union as bargaining representative.37 We find that a majority of the 202 employees continued their desig- nation of the Union as bargaining representative during the pend- ency of the strike and at all times herein material. On September 22 and 23, 1939, a majority of the employees in the appropriate unit signed a statement, mentioned below, acknowledging the Union to 86 At the hearing the evidence of renunciation of union designation in substantially all cases took the form of testimony given on the stand by the employees involved in response to interrogation by the respondents' counsel in the presence of officials of the respondents attending the hearing, and was uncorroborated by other facts. Many of these employees had been questioned in the offices of the Rayon Company by the respondents' counsel prior to the hearing concerning their union affiliation In an analogous case we stated • "We are inclined to question the probative value of testimony concerning piefeiences in union affiliation adduced in the presence and at the instance of the employer." . . .: Matter of May Knitting Company, Inc. and United Wholesale and Warehouse Employees of New York. Local No 65, C. 1. 0•, 9 N. L. R B. 938, at 942 Cf : Matter of Moltrup Steel Prod- vets Company and Steel Workers Oiganizing Committee Lodge No 1202, 19 N L R B. 471 And in another case recently decided we discredited testimony "designed to rebut the effect of the applications of [the witnesses] for [union] membership," gi'ing weight to "the fact that they were in the employ of the . . . respondent at the time when they testified at its request " Matter of Texarbana Bus Company; Inc and Two-States Trans- portation Company, Inc. and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, affiliated with the American Federation of Labor, 26 N. L R B 582. Although employees are safeguarded against discrimination resulting from testimony given under the Act by Section 8 (4) of the Act, evidence like this carries doubt as to its own verity. We view such polling of witnesses on the stand under the foregoing circumstances as an undesirable practice, likely to mterfeie with a flee expression of choice of representatives, and of little evidential value N. L R B v Bradford Dyeing Association (U S. A ), 310 U S 318, rev'g N L R B V. Bradford Dyeing Association (U. S A.), 106 F. (2d) 119 (C. C A. 1), and enf'g Matter of Bradford Dyeing Association (U. S A.) (a corporation) and Textile Workers' Organizing Committee of the C 1 0 , 4 N T, R B 604 ; International A ssociation of Machinists, Tool and Die Makes Lodge No 35, etc, v N. L R B, 311 U S 72, aff'g International Association of Machinists, Tool and Die Maters Lodge No. 35, affiliated with the Inter- national Association of Machinists and Production Lodge No 1200, affiliated with the International Association of Machinists V. N. L' R. B , 110 F. (2d) 29 (App D. C ), enf'g Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No 459, 8 N. L. R. B. 621. National Labor Relations Board v. Highland Park Manufacturing Co, 110 F (2d) 632 (C. C. A 4), enf'g Matter of Highland Park ,Manufacturing Co. and Textile Workers Organizing Committee, 12 N. L. R. B. 1238. MANVILLE JENCKES _CORPORATION 395 be their collective bargaining representative.33 The respondents con- tend that nine employees should not be included among those who continued their designation of the Union as bargaining agency, be- cause by the time of the reopening of the plant on September 23, ,1939,, mentioned below, they had obtained substantially equivalent employment elsewhere.3C Were this contention meritorious, the Union nevertheless, would have continued to be the choice of a ma- jority of the employees in the appropriate unit. We find that on February 27, 1939, and at all times material, there- after, the Union was designated and selected by a majority of the employees of the Rayon Company at the Woonsocket plant in the unit above found appropriate, and pursuant to Section 9 (a) of the Act, was on that date, at all times material thereafter, and now is the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. , , 4. The refusals to bargain; interference, restraint, and coercion On February 19, after the organizational meeting above mentioned,40 the Union wrote the Rayon Company informing it that the plant employees had "stipulated said union as their sole collective bargain- ing agent," submitting a list of the grievances which the employees had with their employer, and stating that the Union was ready,to discuss these grievances and "a possible basis for settlement of the current dispute." On February 20 the Rayon Company sent each plant employee a "notice" which Lockhart had prepared, stating : "In. answer to, inquiries from our employees as to whether it is neces- sary for an employee to belong to a union in order to hold his job in our company, we desire to advise as follows : An employee has the right to join any union he wants to join. On the other hand, he is not required to join a union. Furthermore, he has the right to resign from a union at anytime or cancel his application for member- ship. Whether he joins a union or refuses to join, or joins and then withdraws, makes no difference whatever to the company. It will have no bearing on his job." On February 23, 1939, while the strike was in progress, the Rayon Company and the Union met. The Company was represented by Lockhart and its attorney, one Smith ; the Union by its officials and representatives. The Union stated that it represented for collective bargaining purposes a substantial majority of the employees, and 88 See Section III A 4, infra. ae These nine are Harold Bouvier , Napoleon Durand , J. Armand Fluette, Noel Giguere, Stella . Jarowskl, -Oscar Landry, John Nordberg ,• Alfred St. Germain , and Wilfred St. Germain. 11 See Section III A I, supra 396 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smith stated that the Company would assume that the Union repre- sented a majority of the plant employees. Although at the confer- ence which followed, an agreement was tentatively reached upon some matters including the Union's request for certain improvements in health and safety conditions at the plant,41 the Union failed to obtain an agreement upon matters regarded by its as most significant, viz., an increase in the wages of the spinners, a decrease in their work load, and initiation of a "closed shop" policy at the plant.42 A proposal of the Company that the strike end and the plant reopen' upon the same conditions which existed in the plant at the beginning of the strike was rejected by the Union. Thereafter, in March, the Rayoli Company by personal solicitation sought to induce the body of its employees, including those on strike, to return to work, on the Company's terms. Foreman Bunker of the spinning department approached various spinners and urged them to return, telling them that physical improvements of the plant had been made. The overseer,and two foremen of the chemical de- partment made similar appeals to employees of that department. On March 17 the Company mailed to each employee a letter addressed by it to the plant employees generally, a copy of which was sent the Union, wherein the Company stated that it "could not afford to meet . . . [the] request for higher wages and changes in working schedules;" that the "selling prices of rayon does not produce earn- ing capacity to pay higher wages or otherwise increase production costs," that it "regretted" the loss of wages by the employees, and was "ready to start up the plant at once if the workers are willing to work on the same terms with respect to wages and working schedules which prevailed before the plant was closed," otherwise the Com- pany "has no choice but to allow the plant to remain closed," that "If the Company's position in this matter is not entirely clear, it will be pleased to make fui-ther explanations to any employees or their representatives." 43 41 Before the strike, the spinners complained of bad working conditions in their depart- ment, which resulted in their suffering sore eyes , and gastric distuibances See, Alice Hamilton , Occupational Poisoning in the Viscose Rayon Industry, U. S. Dept. of Labor, Div of Labor Standards Bul. No. 34 , Washington, D C , 1940. 2 By "closed shop " the Union sought the agreement of the Rayon Company to make membership in thp Union a condition of employment as provided by Section 8 (3) of the Act. The parties also discussed requests of the Union for the placing of 47 large cans ins the chemical room to replace smaller ones ; rotation of shifts in the finishing room ; the discharke of the day help boss in the spinning room ; departmental seniority rights for plant employees ; a guarantee by the Company against discrimination because of union membership or acts ity ; and permission to 'collect dues during working hours and post union notices in the plant. 4 On March 20 the Union by telegraphic communication advised the Rayon Company that "all of your employees , with the exception of the spinners , have been and still are available for employment should you call them .", As set forth above, the spinners had called the strike. MANVILLE JENCKES CORPORATION . I 397 On March 22, 1939, in pursuance to a request by the Union, the Rayon Company again met with the Union. The Company agreed to some demands of the Union which were minor in character, but adhered to its position with respect to increasing the wages and decreasing the work load of the spinners, and maintaing a closed shop. In regard to increasing wages it repeated its statement that it was unable financially to take such action. However, it refused to demonstrate the verity of this assertion, saying that information about its business was confidential. The Union asked that the Rayon 'Company make counterproposals to the Union's requests. The Com- pany refused to do so.. Attorney Smith said that the Company had indicated clearly its position. On the following day two plant employees, one Scott of the mechanical department and one Romaine of the cone department, caused-to be advertised in thL local Woonsocket newspaper, The Woonsocket Call, a "notice" announcing that an "Important meeting" for plant employees "only" would be held on the night of March 24 in a hall known as The Chateau. The notice was signed by the "Woonsocket Rayon Employees' Committee," the only members of which were Scott and Romaine. It was the purpose of these indi- viduals to initiate a movement at the proposed meeting which would break the strike and result in all plant employees returning to work, regardless of any grant being made by the Rayon Company of the Union's requests. During the week preceding publication of this notice at least three of the plant, supervisors engaged in activity similar to that' of Foreman Bunker and Overseer Holstius, above mentioned. On about March 23 Foreman Bokowski of the spinning room called at the home of a spinner who worked under him, and requested the employee to return to work. On March -23 one Hoar, an overseer in the finishing room, urged two employees under his supervision to return to work. About a week before, Master Mechanic Gilmore suggested to another employee that that employee attempt to "get back 15 or 20 spinners," that there were "better jobs in the offing." Some 2 days before the announced date of the- meeting, Overseer Hoar informed one employee of the meeting and thereafter advised him to tell other employees about it. He told that employee and two other employees that those who attended the meeting would be "much nearer their jobs." At the hearing Hoar denied making these statements, although he testified to having mentioned to the three employees on the day 'preceding the, meeting the notice of the meeting which had appeaed in The Woonsocket Call.. In view of the' nature of the meeting called, the policy which the Rayon Company through its supervisors and other agents then and there- after, was pursuing, and other/facts herein set forth, we are unable 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to give credence to Hoar's denials . We find, as did the Trial Ex- aminer, that Hoar made the foregoing statements. For similar rea- sons we do not credit Gilmore's denial, at the hearing 'respecting his statements above set forth _44 ' ' On March 24 a group of plant employees assembled at The Chateat%. Scott, one of the two members of the self-constituted Woonsocket Rayon Employees Committee, assumed charge. Before the meeting began two supervisory or managerial employees of the plant; one Demarais and one Blackwood 4,1 had stationed themselves at the entrance to the hall for the purpose of preventing admittance by`per- sons not in the employ of the Rayon Company, particularly the president and general secretary of the Union. At the hearing Scott testified that Demarais and Blackwood were invited to the meeting because their knowledge possessed as a result of their work in the company employment office would enable them to identify those to be admitted. Soon after the meeting convened the members of the Union entered the hall en masse. The employees then voted to replace Scott as chairman with the president of the union local. Immediately Scott, Romaine, and some of their adherents left the hall. The meeting shortly adjourned without anything being done. At about this time Scott and Romaine prepared and circulated among the plant employees certain petitions setting forth that the signatories thereof were willing to return to work.46 Not more than u Gilmore admitted at the hearing that he had had a conversation at his home with the employee in question , and on cross-examination commented , "I was much surprised to hear [the employee] spill it here." '' The respondents contend that Demarais and Blackwood are not supervisory or mana- gerial employees These employees are stationed at the gateway through which the plant employees, with certain exceptions , enter on their way to work. They occupy an office, called the employment office, and check and keep a record of the time each employee enters the plant. This record is transmitted to the main office. Demarais and Blackwood receive written applications for employment from prospective employees , and each new employee ,s given an identification card signed by them. When a particular,departrnent is in need if a new employee, Demarais or Blackwood recommends to the department overseer from the applicants available the names of those in his judgment most likely to fill the need. and from these names and recommendations the overseer selects the person to be hired. At least two employees were hired directly by Demarais and Blackwood, and Demarais directly hired three or more other employees subject to approval of the overseer. It appears that the Rayon Company itself viewed these employees as identified with the management in employment relations , since Demarais and Blackwood , along with 35 other employees , were instructed by Lockhart on or about February 20 "to refrain from discussing with any of our employees , any questions relating to unions or union activities." On the basis of all the evidence, we find that Blackwood and Demarais were supervisory or managerial employees, that when participating in the Chateau meeting they acted as representatives of the Rayon Company , that the employees reasonably understood that such was the case, and that the respondents are responsible for such participation International Association of Machinists V N. L R B 311 U S. 72, aff'g 110 F. (2d) 29 (app D C ), enf'g Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No 459, 8 N L R B 621, reheating denied, 311 U S 729 1 as Scott testified that he threw his petition away, and Romaine that hers was burned by her husband after she had discussed these proceedings with Board's counsel prior to the hearing. f MANVILLE JENCKES CORPORATION 399 .36 employees signed these petitions. Toward the beginning of April Gilmore, the master mechanic, told the president of the Rayon Com- pany Local of the I. T. U., "You know, Steve, just between you and I, you are on the wrong side of the fence clown there." He then' inti- mated that the employee might be promoted were he not on "the wrong side," saying, "You know, all the good jobs down there are not gone yet." Gilmore testified that if he said anything about a "fence," lie did so "in a joking manner." The Trial Examiner who heard the testimony and observed the witness was satisfied and found, as do we, that Gilmore made the above-mentioned statements. On April 11, at the suggestion of the Union, the Union met with the Rayon Company. The Union submitted to the Company for con- sideration a draft collective labor agreement between the Union and the Rayon Company, covering wages, hours of service, and other working conditions of the plant employees. At the request of the Company, the meeting was adjourned in order to give it time in which to study the agreement. Two days later the parties again met. The Company returned the draft to the Union, stating that since the parties still were in disagreement with respect to increasing wages <lnd decreasing the work load of the spinners, and establishing a closed shop, there was no purpose in discussing additional requests of the Union. The meeting thus ended. On April 20, 1939, The TPoo'nsoclcet Call carried a prominently displayed advertisement dealing with the Rayon Company, the strike at its plant, and the Union. Advertisements similar in character thereafter appeared in this newspaper on,May 3, May 9, August 21,, and August 25, 1939.47 All purported on their face to have been initiated and sponsored by the Woonsocket Chamber of Commerce, an organization of local businessmen. We are satisfied from the facts and circumstances shown by the record, some of which are set forth in the margin," and we find, that' the Rayon Company utilized *4 Similar advertisements in the French language appeared in L'Independent de 11 oonsocket The cost of the English and French advertisements was $403 84 "Although the advertisements were paid for by the Chamber of Commerce, and that organization, as testiSed by its secretary, "tried to overcome," for economic reasons, "union agitation," we are convinced, as above found, that the Rayon Company was party to the project. The Rayon Company was a member of the Chamber of Commerce Prior to April 20, Lockhart, together with the Company's attorney, Smith, met with agents of the Chamber of Commerce, and Lockhart furnished information "concerning the history of the company and what the company might do if the strike continued." This followed arrangements between the "Existing Industries Committee" of the Chamber of Commerce and the Rayon Company and Manville Jenckes Corporation, for the purpose, as noted in the minutes of the Committee "to consider what might be done to solve the strike at the Rayon plant" At a subsequent meeting between Lockhart and Smith with the agents of the Chamber of Commerce, a draft statement of the information previously furnished by Lockhart was submitted to and checked by Lockhart and Smith for accuracy The Chamber of Commerce made no attempt to ascertain from the Union its version of the controversy or the truth of the facts given by Lockhart This information was used in connection with the advertisements that were published. The Rayon Company contends that it was ignorant of the use to be given the information, that it never authorized the 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the services of the Woonsocket Chamber of Commerce to cause the publication of these advertisements, that it assisted in their prepara- tion and assented to their publication, and that it did so in an attempt to cause the striking employees to repudiate the Union, give up the strike, and return to work. The April 20 advertisement under the caption "Another Industry Lost-to Woonsocket" recounted the his- tory of the strike in a manner hostile to and derogatory of the Union; it "decried" the fact that the Union had assumed "the cause of the strikers . . . imposing upon the management additional de- mands"; it inquired whether the people of Woonsocket would permit `-this condition to go unchallenged," and stated that the Rayon Com- pany had under consideration three possible courses of action, re- moval of its plant to u new location, permanent closing and liquida- tion of the plant, or possible retention of the plant at Woonsocket "in the hope that the employees will return to work." The advertise- ment concluded with an appeal that the employees of the Rayon 'Company "return to work and permit the management to put the plant back in active operation." At no time thereafter did the Rayon Company in any manner dispute the imputation arising from this and the other advertisements that the contents thereof repre- sented the viewpoint of the Rayon Company." On April 28 a conference attended by the Union and the Rayon Company was held in the Regional Office of the Board. The Union again sought information, if any existed, which would establish the Company's financial ability or inability to increase the wages of the spinners and grant the other requests of the Union. The Rayon Com- pany refused such information. The Union then suggested that thei parties submit the dispute over wages to arbitration, and indicated its wilFngness to abide by an arbitrament. The Rayon Company re- jected this suggestion on the ground that "arbitrators were likely to. compromise, and ..- . the company's financial position was such that it simply could not afford an increase in wages and it could not dele- gate to anyone else the decision with regard to its ability." Further meetings between the Unon and the Rayon Company were held on May 5 and May 24, with a conciliator of the United States publication thereof. Lockhart, however, admitted at the hearing that there were "some- remarks made betooeen . . . [ the agents of the Chamber of Commerce ] to the effect that they themselves felt that these facts should be made public in some way." We find it incredible either that the Rayon Company was unaware that the Chamber of Commerce through its Existing Industries Committee intended to make such use of the information or that it withheld its assent thereto. At a meeting of the Board of Directors of the Chamber of Commerce on June 14 , 1939, the president of the organization "reported on, the Chamber activities regarding the Rayon Company , to the effect that officials [of the Rayon Company ] were pleased with the cooperation extended at the Chamber." `sN. L. R. B. v. Ell,land Leather Co., 114 F ( 2d) 221 (C C A. 3), enf'g Matter of Eli land Leather Company, Inc. and National Leather Workers' Association Local No. 37, RN.-L.R B 519. MANVILLE JENCKES CORPORATION 401 Department of Labor attending. At the May 5 meeting the Rayon Company submitted a financial statement prepared by its accountants dealing with the financial condition of that Company and Manville Jenckes Corporation, for each of the 5 successive years ending Decem- ber 31, 1938. The statement, however, afforded no adequate basis for determining the financial ability of the Rayon Company to grant a wage increase to the spinners, or to "accede to the other requests of the Union.50 The Union, in view' of the fact that Manville Jenckes Corporation was the sole purchaser of the Rayon Company's pro- duction, and wholly owned and controlled the Rayon Company, sug- gested that the Rayon Company furnish information as to the price at which its rayon yarn was sold to Manville Jenckes Corporation. The Rayon Company refused, alleging that the information in ques- tion was "confidential." The Union again proposed that the parties arbitrate their dispute ; also that the Company's records be submitted to an impartial auditor who would be empowered to make a recom- mendation on the wage question. The Rayon Company rejected these suggestions, stating that the Company "knew what it could pay," and adding that the str'king employees "ought to come back under the same conditions as the day before they went out." The Union once more requested the Company to submit counterproposals, but the Company replied that in view of its position on the chief requests of the Union "there was no sense in giving . .. any counterpro- posals." The Union inquired whether the Rayon Company would sign a written collective labor contract with the Union embodying the agreement of the parties "if an agreement were reached." The Company answered that it desired time to consider the matter before replying. No reply was ever given to this inquiry. At the May 24 meeting a discussion of the Union's request for a closed shop brought the response from the Rayon Company that "Man- ville Jenckes Corporation was opposed to a closed shop." The Union then requested a conference with Manville Jenckes Corporation on, the supposition that that corporation was exercising a determinative judgment. On May 31, 1939, the Union met with Manville Jenckes Corporation. The corporation was represented by a committee com- posed of three members of its board of directors,. including its presi- dent. The Union repeated its request for a closed shop and for an increase in the wages of the spinners. It also sought acceptance of. a proposed plan for adjusting grievances of employees with the Rayon Company. These requests were refused by Manville Jenckes Corpora- 60 While setting forth the "net income" and'"loss" of the Rayon Company and Manville Jenckes Corporation during this period, along with certain other items, the statement did not disclose with particularity the manner in which such net income or loss was computed. It did not indicate the amount received by the Rayon Company from sales of rayon yarn to Manville Jenckes Corporation, current operating expenses, and costs, and like items 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lion, without any counterproposal being made. Its president stated that the corporation did not feel that the Rayon Company could grant a closed shop, that the Rayon Company was financially unable to increase wages, and as regards grievance machinery or other re- quests of the Union they were not "worthwhile" considering, "unless he [the president of Manville Jenckes Corporation] could be assured that the employees would come back on the terms on which the com- pany had previously been operating," that such requests "could be worked out perfectly satisfactorily if the employees would come back." He suggested that the officials of the Union "sell the em- ployees the idea that they were very fortunate to have steady work and that they should come back to work." On June 20 the Union. requested another conference with the Rayon Company, but none was held because of the departure of Lockhart some 6 days earlier for Europe. In his absence, no one was'author- ized to act for the Rayon Company in negotiations with the Union. The Union was not informed prior to Lockhart's departure of his plan to leave for Europe. Lockhart returned on July 6. _ Thereafter in July the Union again requested a conference. The Company re- fused. In a letter dated July 27 Attorney Smith informed the Union that the "Board of Directors of the Manville Jenckes Corporation, Hof which the Woonsocket Rayon Company is a subsidiary, voted to, close the Rayon plant indefinitely. In view of this, it is clear that there is nothing to be discussed between the management of the Woonsocket Rayon Company and the Union and there is no reason for having a conference." The record shows that the decision of Manville Jenckes Corporation to close" indefinitely the Woonsocket plant was made by its board of directors on July 11, 1939, about 1 week after Lockhart's return from Europe .51 On September 20 the Rayon Company published in the local news- paper and transmitted by mail to each employee of the Woonsocket plant, a notice announcing the opening of the plant on September 21 "on the same wage and hourly schedule," and requesting all employees to report for work on that day. The employees were informed that the positions of those not reporting for -work by noon of September 23 would be "considered vacant." On the day preceding publication of the notice and thereafter through September 23 overseers and foremen of the Company visited numerous individual employees of the plant, On August 11, 1939, in,response to inquiry by the Regional Dnector, counsel for the Rayon Company wrote as follows : At a meeting of the Board of Directors of Manville Jenckes Corporation, of which Woonsocket Rayon Company is a wholly owned subsidiary, held on July 11, 1939, the situation with respect to the Woonsocket Rayon plant was discussed and, as stated I in the minutes of the meeting, It was the sense of the meeting that the closing of the Woonsocket Rayon Company plant be continued indefinitely. MANVILLE JENCKES- CORPORATION 403 including the spinners, and requested them to return to work. At least two spinners were told' by the supervisors that if they returned to work they would soon receive a raise in wages.52 Overseer Holstius, in the course of 'his solicitation told one employee that he, Holstius, did not "see what you can gain by staying out." The plant reopened on September 21, and 62 employees returned to work that day. On September 22, 11 additional employees re- turned. On September 21 the Union communicated with the Rayon Company and requested a conference to "discuss the then existing situation." The Company replied tliat it "had grave doubts" as to whether the Union then represented a majority of the plant employees and refused to meet with the Union unless its status as statutory rep- resenative was established. On September 22 and 23 the Union circulated for signature among the plant employees a written state- ment addressed to the Rayon Company and setting forth that the signatories thereof "have selected the Independent Textile Union of America and still do select this organization as their collective bar- gaining ,agency and have-authorized the representatives of the I. T. U. to deal collectively with their employer for the employees." A ma- jority of the employees in the unit above found to be appropriate for collective bargaining signed the statement. On the morning of September 23, at a meeting of the Union, the spinners decided to remain on strike despite the opening of the plant, but agreed that the other union members employed at the plant might return to work. The other employees then marched to work in a group. The total number of employees who returned to work by that day was 139.' Also on September 23 the Union tendered to,the Rayon Company the signed statement above mentioned, as proof of its statutory status. The Company, speaking through, Attorney Smith, stated that it "did not believe the Union -any -longer represented a majority of our em- ployees ..' . [that it was] not prepared to accept as evidence of the fact that . . . [the union] did represent a majority, either a petition or signed cards or the statements of union officials." The Union then proposed that an election be held with the parties' consent among the plant employees and under the supervision of the Board to de- termine the authority of the Union as bargaining representative. On September 26 Smith informed the Union that the Rayon Company 52 Solina, an employee In the spinning department , testified that he was told by his over- seer, Vover, and Foreman Bunker that if he came back to work , he would soon receive a raise in wages. Another spinner, Sheehan testified -that Bunker made a similar statement to him. Voyer did not specifically deny this testimony , although Bunker did we are satisfied that both made the above-mentioned statements we have heretofore found Bunker not to be a credible witness. The Trial Examiner did not credit his above -mentioned denials . As set forth below, the respondent granted a plant-wide wage increase in November 1939. - 440135-42-Vol 30-27 404 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD would consent to an election, and the parties agreed that the matter would await a conference with the Regional Office of the Board set for September 28. About the time that the plant reopened Manville Jenckes Corpora- tion retained one Higgins, an attorney of Woonsocket, to attempt a settlement of the strike. Higgins approached an employee of the Falls Yarn Mills whom he had known for many years and through him arranged a meeting with one of the striking spinners who was prom- inent in the Union. Higgins did not communicate with the Union, but questioned these two employees as to what suggestions they might have for bringing the Rayon Company employees back to work. Hig- gins was told that "the boys still thought that they should have a raise and that the work load should be reduced." Between September 24 and 28 ,various plant supervisors urged em- ployees under their supervision to vote against representation by the Union at the proposed consent election, and threatened that the plant would close down unless the employees did so. Foreman La- Plume told one employee that it would be ^ better "to vote for the company than to vote for the union; if the union would win, it would only mean the closing of the plant." LaPlume told another employee in the plant "We are going to have an election ... However, if the I. T. U. [the Union] should win that election, the mill is going to shut down." When the employee replied, "cut the baloney," La- Plume rejoined, "I am just an employee the same as you are, and I have to do what I am told from the main office." Foreman Seagrave informed an employee during working hours "we are going to have an election to find out who ... [is] to be the bargaining agent," 'Ind that it would be to the employee's "interest to vote against the union." He told another employee, that there was "an election coming up, and if the I. T. U. would win, the plant would close down indefinitely, and if they were defeated, we would run, steady." Overseer Holstius instructed an employee to vote against the Union, asserting that if the employees voted for the Union they would shut down the plant. Foreman Johnson told an employee, "There is going to be a vote ... if you vote for the company, we will keep on running, and if you hap- pen to vote the other way, we are, going to stop." At the hearing these supervisors denied having made, respectively, the afore-men- tioned statements.. They testified that. they merely told employees to leave the plant at once-and not wait until operations were begun, if another strike was intended, that they did this on Lockhart's in- structions and because of rumors which had been heard of a threat- ened strike by employees in the plant. Some of the supervisors tes- tified that it was in this connection that they used the word "vote," that they inquired of employees whether the employees intended to MANVILLE JENCKES CORPORATION 405 "vote" to go on strike. The record does not establish that a strike of the employees in the plant was then proposed by the Union.", In general the testimony of the supervisors is vague and unsatisfactory with respect to relevant matters. Apart from the issue whether the supervisors told employees to leave the plant at once if they intended to strike, we are satisfied, and we find as the Trial Examiner found, that they told employees to vote against union representation. Because of the electioneering engaged in by the plant supervisors the Union at' a conference on September 28 with the Rayon Company informed the Company that it would not participate in a consent election unless the Company took steps to disavow the action of the supervisors. Attorney Smith objected in behalf of the Company to such a disavowal being made, on the ground that, it would be equivalent to an admission that the supervisors had electioneered. The Union then suggested that the Company post a notice stating merely that it would not close the plant irrespective of whether the Union won or lost the election. Smith stated that he would discuss the matter with the Rayon Company management. On September 30 the Rayon Company informed the Union of its refusal to post a notice of disavowal. On October 3 it notified the Regional Office Qf the Board that it would not consent to an election because it was `.convinced" that the Union would misrepresent to the plant em- ployees such consent as a "willingness on the part of-the company to give in to the demands and to increase wages provided only the Union were definitely designated as the bargaining agency." Early in November about 1 week after normal production at the plant was resumed, the Rayon Company increased the wages of the plant employees by 7 per cent. Following the Rayon Company's refusal to post a notice, and, finally to participate at all in a consent election, conferences between the Union and the Company terminated. The Rayon Company has never entered into a collective labor agreement with the Union. The foregoing facts considered in the light of the entire record plainly show that with the beginning of the strike by the employees of the spinning department on February 19 and the designation shortly thereafter of the Union as statutory representative of the 63 A witness, who after the strike and prior to the hearing had been made a spare foreman, testified for the respondents that at a union meeting Aihich he attended on September 23 there was taken either a hand or voice vote in favor of a strike to occur once work was started His memory of what else took place at this meeting was vague or lacking. The same witness testified that by the middle of April he decided that he did not wish the Union to represent him, that he thereafter accepted relief from the Union, that on September 23 he signed the statement authorizing the Union to represent him and that he went to union meetings without wishing union representation. We do not credit the testimony of this witness In view of the fact that the record presents no other e%idence showing that the Union voted to strike on September 23 «e are of the opinion that no such vote was taken. 406 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant employees, the Rayon Company embarked upon a course of anti-union conduct. Pursuing this course the Company in various ways interfered with, restrained, and coerced the plant employees in the exercise of rights guaranteed them by Section 7 of the Act. Its letter of February 20 to each plant employee, sent on the day following the initial union organizational meeting of the plant employees and- at a time when membership in the Union was being enlisted among them, was calculated to disclose employer hostility to the Union and necessarily discouraged membership in that organi- zation., The letter did not confine itself to a declaration of the em- ployees' right to join a union free from employer interference, but advised the employees that they were not "required" to join a union, that they had the "right to resign from the union at any time," and that they "could cancel" their applications for membership." The solicitation by the Company in March through its supervisors and letter of March 17 attempting to persuade the employees, including those of the spinning department, to return to work on its own terms, regardless of the decision of the Union in the matter or the fact that the employees of the spinning department by concerted action were refusing to return to work pending an adjustment of their grievances and requests, not only reflects upon the good faith of the Company in its negotiations then and thereafter had with the Union, a matter considered below, but independently was violative of the Act. By 'undercutting"5$ in this manner the authority of the Union to act as collective bargaining representative, and by bringing to bear the coercive force of its economic power upon the employees to the end that they disregard the Union and union leadership and terminate the strike, 16 the Company interfered with, restrained and coerced the employees in their right of self-organization, to bargain collectively, and to engage in concerted activities for mutual aid and protection. For similar reasons the participation of the Rayon Company in the abortive "back-to-work" movement undertaken by the Woon- socket Rayon Employees' Committee,57 the attempt by the Company through further acts of its supervisors to cause the employees to break rank and return to work in derogation of the authority of the 51 Cf. Matter of Standaa d Knitting Mills , Inc. and Federal Textile Labor Union No. 21751 affiliated with the American Federation of Labor , 25 N L R . B 168 , pp 10-11 is U. N. L R. B v. Remington Rand, Inc, 94 F (2d) 862, 868 (C. C A. 2) ; Matter or Williams Coal Company and United Mine Workers of America, District No 23, 11 N L. R B 579, 644 56 Matter of Harry Schwartz Yarn Co , Inc and Textile Workers Organizing Committee, 12 N L. R. B 1139, 1149, 1151 "',Republic Steel Corporation v. N L. R B , 107 F (2d) 472 (C C A. 3) enf'g Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R B. 219; Matter of Remington Rand, Inc. and Remington Rand Joint Protectwe Board of the District Council Office Equipment Workers, 2 N L R B 626 . 665, enf'd in N. L 'R. B v Remington Rand, Inc., 94 F. (2d ) 862 (C. C. A. 2 ) cert den 304 U S. 576. MANVILLE JENCKES CORPORATION 407 Union and solidarity of the spinners,511 and the subsequent effort of the Company with the aid and through the instrumentality of the Woonsocket Chamber of Commerce to attain the same objective by use of the newspaper advertisements, contravened Section 8 (1). Irrespective of whether it initiated the plans for the Chateau meet- ing, the Company inspired and supported that enterprise. An- nouncement of the meeting followed closely upon the mailing of the March letter by the Company and solicitation by the supervisors of plant employees to return to work on the Company's terms; at least one supervisor advised employees to attend the meeting and to inform other employees about it; and two supervisory or man- agerial employees, acting as representatives of the Company, assisted in preventing non-employees, especially the president and general secretary of the Union, from attending the meeting, and otherwise lent employer sanction and influence to the occasion. The Company's utilization of the Woonsocket Chamber of Commerce was none the less an unfair labor practice because the sponsorship of the advertise- ments purported to be that only of the-Chamber of Commerce. An employer is responsible under the Act for anti- union action prose- cuted with its connivance or assistance by other persons or agencies in the community even though such persons or agencies have no direct pecuniary stake in the employer's business.50 As indicated above, the Rayon Company at the time in question neither disavowed the publication or contents of the advertisements, nor took any other step to show its employees that the advertisements were not spon- sored by itself and did not represent its position and sentiments. That the advertisements were intended to have, and we find that they did have, the effect of intimidating and coercing the plant em- ployees in their adherence to the Union, is apparent from their face. The advertisements were objectionable, in view of the purposes and policies of the Act, because they sought to induce a public "campaign of attrition" 80 against the Union. 69 See footnote 56, supra. 59N. L. R. B. v. Elkland Leather Company, Inc., 114 F. (2d) 221 (C. C. A. 3) enf'g Matter of Elkland Leather Company, Inc . and National Leather Workers Association, Local No 87, 8 N . L R B 519; N L R. B. v. Texas Mining it Smelting Company, 117 F. (2d) 86, decided January 4, 1941 (C C. A. 5), enf'g as mod. Matter of Texas Mining & Smelting Company and International Union of Mine, Mill it Smelter 'Porkers, Local No 412, 13 N. L. R B 1163 , 1174 , 1175 Cf Matter of Cosiath Hosiery Mill, Inc. and American Federation of Hosiery Workers, 16 N. L R . B 414, 424, Matter of Bethlehem Steel Cor- poration, et at. and Steel Workers Organizing Committee, 14 N. L. R B 539, 624 ; Matter of Reed it Prince Manufacturing Company and Steel 'Porkers Organizing Committee of the C 1 0, 12 N. L. R. B. 944; Matter of Jacob H . Klotz etc and Joint Board of Suitcase, Bag & Portfolio Makers' Union, A . F. of L., 13 N. L. R. B. 746, 754. '°N L . R. B v Somerset Shoe Company, 111 F. ( 2d) 681 ( C C A. 1 ), enf'g Matter of Somerset Shoe Company and United Shoe Workers of America, 5 N. L. R . B. 486; Cf. Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L R. B. 219, 252 et seq., enf'd in Republic Steel Corporation v. N. L. R B. 107 F. (2d) 479 (C. C. A. 3), cert. den. 309 U. S 684. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Likewise, the conduct of the Rayon Company at the reopening of the plant in September contravened Section 8 (1). It again solicited individual employees to return to work on its own terms, in deroga- tion of the authority of the Union and the desires of the employees to act concertedly. Higgins' attempted settlement of the strike in its behalf undercut the authority of the Union. It promised an increase in wages to employees if they would terminate their strike and in effect repudiate the Union. Finally, the statements and threats by the Company to employees regarding the proposed consent election constituted an unlawful attempt to subvert the election machinery of the Board, and to sub- ject its, employees to employer coercion in their selection of a statu- tory representative. We find that the Rayon Company by manifesting in various ways to its employees hostility to their labor organization and discouraging membership in it; by soliciting individual employees during the pendency of a strike to return to work on its own terms, in disregard of the decision of their union and authority of the union leadership; by promising rewards to them if they so returned ; by sponsoring and supporting a back-to-work movement; by causing, and joining with the local Chamber of Commerce in, the publication of the afore- mentioned anti-union newspaper advertisements aimed in part at causing striking employees to repudiate their union and return to work; by seeking through said advertisements to induce public action against its employees' union; by making statements to its employees in derogation of their union; by undercutting the authority of their union; by in effect threatening employees with loss of employment if they remained on strike; by electioneering with respect to and interfering with a proposed consent election to determine representa- tives, and by each of said acts and by other acts, interfered with, restrained, and coerced its employees in the exercise of rights guaran- teed in Section 7 of the Act. We think it also plain that the Rayon Company in various ways refused to bargain collectively with the Union. Under the Act the Company was obliged on and after February 27, 1939, to recog- nize and deal with the Union as the exclusive collective bargaining agency of employees within the appropriate unit; 61 to discuss and negotiate with the Union respecting its requests, with an open and "IN L R B. v. The Griswold Manufacturing Company, 100 F. (2d) 713 (C C A. 3), enf'g Matter of The Griswold Manufacturing Company and Amalgamated Association of Iron, Steel and Tin Workers of North America , Lodge No 1197, 6 N L R B 298; McQuay-Norris Manufacturing Company v N L R B, 116 F ( 2d) 748 decided December 23, 1940 ) (C. C. A. 7) enf'g Matter of McQuay-Norris Manufacturing Company and United Automobile Workers of America, Local No 226, 21 N L R. B 709. MANVILLE JENCKES CORPORATION 409 fair mind and with a sincere purpose to find a basis of agreement; 02 and to sign a collective labor contract embodying any terms agreed upon if requested to do so by the Union."3" - : We are satisfied, and we find, that the Company at its meetings with the Union in February, March, April, and May, 1939, entertained no real intention of nego- tiating sincerely to the end that differences might be composed and the strike settled on terms mutually satisfactory. Rather, it was firmly resolved to withhold granting to the Union any request of consequence even though sincere negotiation on its part might have led to such a grant. We are convinced that its dealings with the Union were dominated throughout by an intent to render the strike and collective bargaining nugatory in- order to discourage further resort by its employees to concerted action or unionization as a means for improving their working conditions. Thus, as heretofore set forth, the Rayon Company at these meetings made no concession or counterproposal with regard to the principal requests 'of the Union. It proposed that the employees return to work upon the same conditions as those prevailing when the strike was called .64 At the first meeting with the Union it suggested that the strike end under the conditions as then existed at the beginning of the strike. At the-meeting in May it again stated that the employees "ought to come back under the same conditions as the day before they went out." Manville Jenckes Corporation at the meeting on May 31 with the Union, stated through its president that certain requests of the Union were not worthwhile considering unless he "could be assurd that the employees would come back on the terns on which the [Rayon] Company had previously been operating," that the Union should "sell the employees the idea . . . that they should come back to work." Nor may we ignore the fact that during the period that these u2 Globe Cotton Mills v. N L R B , 103 F. (2d) 91 (C C A 5) enf'g Matter of Globe Cotton Mills and Textile Workers Organizing Committee, 6 N. L R B 461, N. L. R B v. Highland Park Manufacturing Company, 110 F. (2d) 632 (C. C. A 4) enf'g Matter of High- land Park Co. and Textile Workers Organizing Committee, 12 N. L. R B 1238, N. L. R, B. v. Biles-Coleman Lumber Company, 98 F. (2d ) 18, 22 (C. C. A 9), enf'g Matter of Biles- Coleman Lumber Company and Puget Sound District Council of Lumber and Sawmill Workers, 4 N. L It. B. 679. 03 It J. Heinz Cwepanif v N L R B, 311 U S 514, affg N L R B v 11 J Hein' Company, 110 F, (2d) 843 (C. C. A. 6) enf'g Matter of H. J. Heinz Company and Canning and Pickle Workers, Local Union No. 525, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, American Federation of Labor, 10 N. L. R. B. 963. ss In The M. H Ritzwoller Company v. N. L. R. B. 114 F. (2d) 432 (C. C. A 7) enf'g Matter of The M. H Ratzwoller Company and Coopers' International Union of North America, Local No. 28, 15 N. L. R. B 15, the United States Circuit Court of Appeals said: If'there remained any doubt that petitioner refused to bargain . . . it is dispelled by the notice signed by petitioner and posted on July 23rd at the employees' entrance to its plant, as follows . The plant will resume operation Monday, July 26th, under the same terms and conditions as the plant has run in 'the past. That is the very antithesis of any intention to bargain or to concede any of the demands made by the Union 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meetings were being held the Rayon Company, by letters to indi- vidual employees, by plant supervisor solicitation, by sponsorship of and assistance to a back-to-work movement, and by newspaper advertisements, unlawfully sought to undercut the authority of the Union as collective bargaining representative and to induce and coerce employees individually to return to work on its own terms.85 In some instances individual employees were told by supervisors that "better jobs" would be had, We conclude, and we find, that the Rayon Company at its meetings with the Union in February, March, April, and May, 1939, did not negotiate sincerely. The conduct of the Rayon Company in June, 1939, and thereafter regarding negotiations with the Union was violative further of the Company's duty to bargain collectively. We are of the opinion that Lockhart's departure for Europe without informing the Union thereof and without leaving anyone to represent the Company during his ab- sence in dealings with the Union, at a time when a strike was in progress and negotiations with the Union had not been concluded, con- stituted an act of bad faith attributable to the Company in its bar- gaining relations with the Union. Also, the refusal of the Company to meet at all with the Union from July 27 until September 21, 1939, was a refusal to bargain collectively, within the meaning of the Act.' That the Company had previously decided to keep its plant closed indefinitely did not justify a refusal to meet with the Union during this period.e° Finally, the refusal of the Company on September 21 and thereafter to recognize or otherwise bargain collectively with the Union as statutory representative, because of its alleged "doubts" as to whether the Union represented a majority of the employees in an appropriate collective bargaining unit, constituted a refusal'to bargain collectively, within the meaning of the Act. We are satisfied that the Company had no genuine uncertainty regarding the status,of the Union as statutory representative. It had met and conferred with the Union for at least 5 months on the assumption that the Union was designated as collective bargaining representative by a majority of the employees, as indeed was the fact. When to dissipate any such a In Matter of Harry Schwartz Yarn Co, Inc . and Textile Workers Organizing Com- mittee, 12 N . L R B. 1139, 1160 the Board said of an analogous situation : . , during the period in which these meetings were held , and thereafter, the re- spondent through its officers and agents sought to induce and coerce individual em- ployees and union leaders to ignore the Union and return to work We have,had occasion in previous cases to indicate the import of such conduct by the employer as demonstiating the absence of a real intent to bargain collectively with•the desig- nated representati%e. See also The M. H. Ritzwoller Company v. N. L. R. B, 114 F. ( 2d) 432 ( C C. A. 7) enf'g Matter of The M H. Ritzwoller Company and Coopers' International Union of North America, Local No. 28, 15 N L. R. B 15; N. L. R. B. v Lightner Publishing Corporation of Illinois, 113 F. (2d) 621 (C. C. A. 7). N. L R. B. v. Somerset Shoe Company, 111 F. (2d) 681 (C. C. A. 1) enf'g Matter of Somerset Shoe Company and United Shoe Workers of America, 5 N. L. R. B. 486. MANVILLE JENCKES CORPORATION 411 doubt 'the Union, as above mentioned, caused to be signed by a majority of the employees.and submitted to the Company a statement affirming the authority - 'of the Union to act as their collective bargain- ing agency, the Company rejected such proof, averring .that it was "not prepared to accept as evidence of the fact that . . . [the Union] did represent a majority, either a petition or signed cards or the statements of union officials." We have held that an employer may not refuse to bargain collectively with a labor organization claiming to be the statutory representative of his employees, on the ground that the organization has not been certified by the Board,e7 and that the assumption of such a position by an employer,where a tender of proof of representation is made, demonstrates that his' assertion of doubt regarding the status of the labor organization is not put forth in good faith.e8 The conduct of the Company in urging employees to vote against representation by the Union at the proposed consent election and threatening that the plant would close down unless they did so, further evidences the bad faith of the Company in advancing its alleged doubts. We find that the" Rayon Company by not negotiating sincerely concerning the requests of the Union at meetings with the Union in February, March, April, and May 1939, and thereafter; by re- fusing to meet or negotiate with the Union during Lockhart's trip to Europe, after failing to inform the Union thereof or to authorize some one to represent the Company on such matters in Lockhart's ,absence; by refusing to meet with the Union for purposes of collec- tive bargaining from July 27 until September 21, 1939; by refusing to recognize or treat with the Union on and after September 21, 1939, as the statutory representative of its employees; and by each of said acts and conduct, refused to bargain collectively with the Union as the representative of its employees in the appropriate unit in respect to rates of pay, wages; hours of employment, and other con- ditions of employment. 'We also find that by such refusal the Rayon 67 Matter of Burnside Steel Foundry Company and Algamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1719, 7 N. L. R. B. 714. See also N. L. R. B. V. Remington Rand, Inc., 94 F. ( 2d) 862 (C. C. A. 2) cert. den. 304 U. S. 576 enf'g Matter of Remington Rand, Inc. and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N. L. R. B. 626. °8 Matter of Brown Shoe Company, Inc . and its wholly owned subsidiary Moench Tanning Company, Inc. and National Leather Workers Association Local #44, affiliated with the Comnttttee for Industrial Organization, 22 N. L. R. B. 1080; Matter of Stehli and Co., Inc and Textile Workers Union of Lancaster; Pennsylvania and Vicinity, Local # 133, 11 N. L R. B 1397, 1427. " See also N. L. R. B. v Texas Mining d Smelting Company, 117 F '( 2d) 86 (C -C A 5) decided January 4, 1941, enf' g Matter of Texas Mining & Smelting 'Company and International Union of Mine, Mill & Smelter Workers, Local No. 412, 13 N. L R. B. 1163,' Solvay Process Co v. N L. R B. 117 F. (2d) 83 (C. C A 5), decided January 4, 1941, enf'g Matter of The Solvay Process Company, Baton Rouge, Louisiana and Oil Workers' International Union, Local No. 424, affiliated with the Com- mittee for Industrial Organization, 21 N. L. R. B. 882. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. B. Discrimination in regard to hire and tenure of employment On October 20, 1939, the striking employees of the spinning de- partment terminated their strike with the approval of the Union, and on October 21 made oral application to the Rayon Company for reinstatement to their former positions in the plant. The Com- pany refused to reinstate them, for the alleged reason that their posi- tions had been filled- by other persons hired during the course of the strike, but undertook to notify them if and when any vacancies occurred at the plant which they could fill. Thereafter, on October 21, 34 of the employees who had been on strike executed and delivered to the Company their written application for reinstatement.69 On November 1, 1939, the Union by letter to the Company applied for the reinstatement of these 34 employees and of 18 others who had been on strike.70 No response to its letter was received. There is no showing that had the Company, after receipt ofrthe foregoing appli- cations, dismissed from their positions the persons it hired after February 20, 1939, and not on the Company pay roll of February 9, 1939, to fill the vacancies occasioned by the 52 employees, referred to above, going and remaining on strike, it could not have reinstated all the 52 employees or any of them, and we presume, and find other- wise. Nor is there any satisfactory explanation why the Company did not dismiss such persons and reinstate such employees, upon the applications being received by it, except its unwillingness to do so. Although, as we have' found, the strike of February 19, 1939, had its origin in purely economic causes,71 it is manifest that the strike thereafter was prolonged and continued, and the spinning department employees remained out of work, because of the unfair labor practices engaged in by the Rayon Company on and after February 20, 1939. On the one hand, the strike became and was a "remedy parallel with recourse to the Labor Board" 72 which the striking employees pursued 11 The names of these employees are : Leo Ayotte, Stanley Bokoski, Stephen Bokoski, E. Boucher, John Chmiel, Henry Corriveau, Joseph Curodeau, Michael Czarn, Herve Desaulniers, Roland Desaulniers, Leo Garneau, H. Greenlund, Stephen Greenup, Philippe Guertin, Anthime Guilbault, Paul Hetu, Robert Hetu, Orphir Joyal, Rafael Lambe; David LaValle, Edward LeClere, Paul Mandeville, Jr, Ernest Marien, Henry Martel, George Morel, Walter Pasek, Philippe Plant, Harvey Rabidoux, Leo Renaud, Roland Rocheford, Arthur Sheehan, Raymond Sheehan, John Solina, S Wecal 70 The names of these 18 other employees are • Theodore Beauchamp, Napolean Durand, Roger Ei ben, Noel Giguere, Carl Hendrickson, John Hoothay, Carl Leduc , Florian Marquis, John Nordberg, Carl Peterson, Hector Petrin, Peter Pichie, Edmund Remillard, Gene Rondeau, Magliore (designated as "Magloire" in the letter of November 1) Savoie, A. St. Germain, W. St Germain, and David Wilson. The Union also sought "reinstatement" for one Albeit Boissy who had been discharged for cause prior to the strike. 71 See Section III, A, 1, supra 'I N. L. R. B. v. Remington Rand, Inc., 94 F. (2d) 862, 871 (C. C. A 2). MANVILLE JEN CKES CORPORATION 413 in an effort to compel the Company to cease and desist from its unfair labor practices and to have it negotiate in good faith with the Union ; 7s on the other, the persistent and varied refusals of the Company to bargain collectively with the Union, together with its other unfair labor practices aimed at impairing if not destroying the Union as '3ollective bargaining agency of the plant employees, precluded any possibility of the parties reaching a collective labor agreement settling the strike. Ordinarily, where the employer accepts the principles of'the Act and bargains in good faith, agreement results, and it does not rest with the Company to contend here that such would not have been the case even if it had not committed its unfair labor practices. Under these circumstances, beginning February 20, 1939, when the Company engaged in its first unfair labor practices, and continuing thereafter, the normal right which the Rayon Company had to select its employees became and was "vulnerable." 74 Any refusal by the Rayon Company after February 20 to reinstate upon application the employees who remained on strike, for no reason other than an un- willingness to displace-persons hired after that date, thereby discharg- ing such employees, in effect and in result would discriminate, and constitute a discrimination, regarding hire and tenure of employ- ment, within the meaning of Section 8 (3) of the Act, against em- ployees whose continuance and remaining on strike was caused by the Company's unfair labor practices, in favor of persons "whose position was one of sufferance, without greater right to their positions than their employer's defeasible right to employ them could afford." 74 However, the complaint, as amended, alleges that 28 of the em- ployees who went on strike were refused reinstatement in October; 78 n While the were issues between the Rayon Company and the Union other than the matter of the Company 's unfair labor practices , "it rested upon the tortfeasor to disentangle the consequences for which it was chargeable from those from which it was immune," N. L R. B. v. Remington Rand, Inc., 94 F. (2d) 862, 872 (C. C. A 2). See also N. L. R. B. V. Stackpole Carbon Company, 105 F. (2d) 167, 176 (C. C A 3). 74 Black Diamond S. S. Corporation v. N. L. R. B, 94 F. ( 2d) 875, 879 , (C. C. A. 2) cert. den. 304 U. S. 579, enf'g Matter of Black Diamond Steamship Corporation and Marine Engineers' Association, Local No . 33, 3 N. L. R B. 84. See also N L. R B v. Lightner Publishing Corporation of Illinois, 113 F. (2d) 621, 626 (C. C A 7) enf'g Matter of Lightner Publishing Corporation of Illinois and Chicago Pressmen's Union No 3, Chicago Typographical Union No 16, 12 N. L R B 1255. 'r' Matter of Mclfaig-Hatch, Inc. and Amalgamated Association of Iron, Steel, and Tin Workers of America, Local No 1139, etc , 10 N. L R. B 33, 50. Black Diamond S S Corporation v. N. L R B, 94 F. (2d) 875 (C. C. A. 2) cert. den. 304 U. S. 579, enf'g Matter of Black Diamond Steamship Corporation and Marine Engineers' Association, Local No. 33, 3 N. L R. B 84; The M. H. Ritzwoller Company v. N. L. R. B., 114 F. (2d) 432 (C C A. 7) enf'g Matter of The M H Ritzwoller Company and Coopers' International Union of North America, Local No 28, 15 N. L R B 15; N L R B v. Lightner Publish- ing Corporation of Illinois, 113 F. (2d) 621 (C C. A. 7) enf'g Matter of Lightner Pub- lishing Corporation of Illinois and Chicago Pressmen's Union No 3, Chicago Typograph- ical Union No 16, 12 N L R B. 1255, Steoai t Die Casting Corporation V N. L. R B., 114 F. ( 2d) 849 enf's Matter of Stewart Die Casting Corporation and United Automo- bile Workers of America, Local 298, 14 N L R B 872 76 See footnote 2, supra 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 14 in November,77 that is, 10 less than the 52 above found to have applied, for and been refused reinstatement in October and November. It also appears that one employee,7S who worked as a spare foreman prior to the strike was reemployed after the strike as a spinner, and that the position of spare foremen. has been abol- ished. In view of the allegations of the complaint, as amended, and the reinstatement upon satisfactory terms of the employee in question, we "shall find that the, Company's refusal to reinstate and its discharge of such employees in October and November related only to the employees named in the complaint as amended, excluding the one employee. We find that the Rayon Company by refusing to reinstate and thereby discharging on October 21, 1939, the following employees : Stanley Bokoski, Stephen Bokoski, E. Boucher, John Chmiel, Joseph Curodeau, Michael Czarn, Roland Desaulniers, Herv Desaulniers; Leo Garneau, H. Greenlund, Stephen Greenup, Philippe Guertin, Anthime Guilbault, Paul Hetu, Rafael Lambe, David LaValle, Ed- ward LeClerc, Paul Mandeville, Jr., George Morel, Walter William Pasek, Leo Renaud, Harvey Rabidoux, Roland Rocheford, Arthur Sheehan, Raymond Sheehan, John Solina and Stephen Wecal, and by refusing to reinstate and thereby discharging on November 1, 1939, the following employees:, Theodore Beauchamp, Napoleon Durand, Noel Giguere, Carl Hendrickson, John Hoothay, Carl Leduc, Florian Marquis, John Nordberg, Carl Peterson, Peter Pichie, Edmund Remillard, Magliore Savoie, Alfred St. Germain, and David Wilson, discriminated in regard to the hire and tenure of employment of each said employee and discouraged membership in a labor organiza- tion ; and that by such discrimination said Company interfered with, restrained and coerced its employees in the exercise-of rights guar- anteed them by Section 7 of the Act. IV. PARTICIPATION AND RESPONSIBILITY OF MANVILLE JENCKES CORPORA- TION IN AND FOR UNFAIR LABOR PRACTICES COMMITTED AGAINST THE WOONSOCKET PLANT EMPLOYEES As already set forth, the Rayon Company was and is a wholly owned subsidiary of Manville Jenckes Corporation. It manufactures exclusively for the parent corporation. Officers of the parent cor- poration comprise all the officers and directors of the subsidiary. We are satisfied, and we find, that during the period herein in- volved Manville Jenckes Corporation by means of its corporate rela- tionship with the Rayon Company, dominated and controlled the labor relations and policies of the Rayon Company, especially as "See footnote 3, supra. 7s The name of this employee is Henry Martel. MANVILLE- JENCKES CORPORATION 415 they concerned the commission of the unfair labor practices above set forth ; that it participated in those unfair labor practices; and in that connection itself engaged in unfair labor practices against the Woonsocket plant employees . 79 The record establishes , among other things, - that at the outset of , the dispute with its spinning depart- ment employees and before the strike - began, the Rayon Company through President Lockhart communicated with and advised Man- ville Jenckes Corporation about its position respecting the employees' requests . During the strike Lockhart communicated and conferred at various times with Manville Jenckes Corporation about the Rayon Company's relations with its employees . As above mentioned, on May 31 , 1939, upon being informed by the Rayon Company that it would not accede to a certain request because Manville Jenckes Cor- poration was opposed to a grant thereof, the Union met with Manville Jenckes Corporation for purposes of collective bargaining respecting the working conditions of the Woonsocket plant employees . At this meeting Manville Jenckes Corporation plainly disclosed its domina- tion and control over its subsidiary's relations with the Union and plant employees . _ It not only spoke with finality on requests of the Union, but by its failure or refusal to make counterproposals and by its emphasis upon the employees terminating the strike and returning to work "on the terms on which the [Rayon] company had previously been operating " manifested its own unwillingness to consider sin- cerely such requests. Also, as above mentioned , it was Manville Jenckes Corporation which determined in July 1939 during the strike that the Woonsocket plant, would be closed indefinitely , a determina- tion seized upon by the Rayon Company as ground for excusing it from bargaining with the Union. Under these circumstances Manville Jenckes Corporation is respon- sible with the Rayon Company for the unfair labor practices engaged in by the Rayon Company, heretofore set forth , and we so find. We also find that Manville Jenckes Corporation , acting in the interest of the Rayon Company, refused to bargain collectively with the Union as the statutory representative of the Woonsocket plant employees in the ap- propriate ,unit regarding working conditions ; and that by such refusal to bargain collectively Manville Jenckes Corporation interfered with, restrained, and coerced the Woonsocket plant employees in the exercise of rights guaranteed them by the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section III and IV above, occurring in connection with their operations described in Sec- '9 Since this conduct of Manville Jenckes Corporation was "in the interest of an em- ployer," viz, the Rayon Company , Manville Jenckes Corporation when engaging in such conduct was an employer , within the meaning of Section 2 ( 3) of the Act. 416 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD tion 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. VI. THE REMEDY It is essential to an effectuation of the purposes and policies of the Act that the respondents, and each of them, be ordered to cease and desist from the unfair labor practices in which they have engaged and for which they are responsible, and in aid of such order and as a means of removing and avoiding the consequences of such unfair labor prac= tices that they be ordered to take certain affirmative action, more particularly described below. We have found that the respondents, and each of them, interfered with, restrained, and coerced employees of the Rayon Company in the exercise of rights guaranteed them by the Act, or were responsible for such interference, restraint, and coercion. It is plain that the respondents, and each of them, must cease and desist from interfering with, restraining, and coercing these employees in the exercise of -such rights, and we shall so order. Moreover, since, as we have found, Manville Jenckes Corporation also is responsible for the unfair labor practices engaged in by the Rayon Company, we shall for purposes of making our order more effective and comp'etely remedying the situa- tion, order Manville Jenckes Corporation to cease and desist from unfair labor practices such as those engaged in by the Rayon .Company. We have also found that each of the respondents refused to bargain collectively with the Union. Accordingly, we shall order the respond- ents, and each of them, to cease and desist from such unfair labor prac- tice, and, affirmatively , in effectuation of the policies of the Act, to bargain collectively upon request with the Union as the exclusive bargaining agency of employees within the appropriate unit. We have also found that the Rayon Company (u October 21, 1939, discriminatorily refused to reinstate and thereby discharged 27 em- ployees, and on November 1, 1939, discriminatorily refused to reinstate and thereby discharged 14 additional employees, in contravention of Section 8 (3) of the Act, after having caused by unfair labor practices, for which Manville Jenckes Corporation also is responsible, a pro- longation and continuance of the strike of these employees. Hence, we shall order the respondents, and each of them, to cease and" desist from discouraging membership in a labor organization, or otherwise violating Section 8 (3), by discrimination in regard to hire or tenure of employment, or any term or condition of employment of the Woon- socket plant employees. However, the respondents contend that the Board should not issue an order, of the kind customary in cases such MANVILLE JENCKES CORPORATION 417 as this,S° directing them to reinstate with back pay the employees thus discriminatorily refused reinstatement and discharged, on the ground that the calling of the strike by these and the other employees of the spinning department, under the circumstances involved, "deserves some kind of censure." We find no merit in this contention.81 It is unnecessary for us to pass upon the wisdom of these employees in call- ing the strike. Their right to strike is and was expressly protected by the Act.82 There is no evidence of employee violence or other un- lawful conduct bringing the case within the doctrine of the Fansteel -case.113 The issuance of such an order is not merely by way of vindica- tion of a private right of the employee, but in furtherance of a public policy that employers should not engage in unfair labor practices.84 The respondents also contend that no order of reinstatement and back pay should issue with respect to John George Nordberg, Alfred St. Germain, and Napoleon Durand. It is argued that these persons have obtained, and at the time they applied for reinstatement, had obtained, regular and substantially equivalent employment elsewhere, and hence are,not proper subjects of such an order. Even were it true shat such other employment had been obtained, we would still be empowered to issue, and would issue, such an order in effectuation of the policies of the Act."' In any event, noise of them has obtained such employ- ment. Nordberg obtained a job in Worcester, Massachusetts, at a slightly higher wage. However, his traveling expenses to and from Worcester and his inability to have his lunches at home have resulted in a net income which is materially lower. Moreover, he has the in- convenience of the increased travel. St. Germain secured employment in Woonsocket at $20.50 for a 40-hour week. He was laid off on Jan- uary 16, 1940. St. Germain had earned prior to the strike $19.03 for a 36-hour .week., and had he been reinstated, would have participated in the general increase of 7 percent in plant wages. He thus would have earned approximately $20.36 for a 36-hour week. He obtained no work after his lay-off. Durand was employed as a spare replace- ment man in the spinning department before the strike and received as wages $24 for a 36-hour week. More than half the weeks lie worked 80 See cases cited in footnote 75, sup) a. 81 The Rayon Company itself alleges in its ansiier that it "is willing to continue" to offer positions to spinning department employees as vacancies occur, and upon the reopen- ing of the plant requested all these, employees to return to work 82 Sections 8 (1) and 13 of'the Act. x8 N L R B v Fansteel Metallurgical Corporation, 306 U S. 240 8 Agicilmes, Inc v. N L. R B, 87 F. (2d) 146, 150 (C C A 5). 85 Matter of Eagle-Picher Mining d Smeltinq Company, a corporation, and Eagle-Pwcher Lead Company, a corporation, and International Union of Mine, Mill cC Smelter Woi leers, Locals Nos 15, 17. 107, 105, and 111, 16 N L R B 727; Matter of Continental Oil Company and Oil Workers International Union, 12 N L. R B 789, mod in another respect and enf'd in Continental Oil Company v National Labor Relations Board, 113 F (2d) 473 (C. C A -10), ceit granted, 61 S Ct 72 - 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 36 hours. He obtained other employment where his compensation is $20 for a 42-hour week. All these employees desire reinstatement. The case of Joseph Curodeau also requires special consideration. Jo- seph Curodeau worked as a frame tender prior to the strike. On October 28, he was offered a job as a spinner but refused it because spinning aggravated his eyes. Curodeau was under no obligation to accept a position different from that which he held prior to the strike, and his refusal to accept the-position of spinner does not preclude him from reinstatement to his former position.- At the hearing two of the employees discriminated against, Noel Giguere and Carl Rangnar Peterson, stated that they did not wish reinstatement, and a third, Theodore Beauchamp, stated that he desired reinstatement only on a condition which he is not entitled to impose. Under these circum- stances, we shall not order the reinstatement of the three employees, and since it does not appear when they no longer desired reinstatement we shall not order back pay in their behalf. Accordingly, to remedy the situation brought about by the unfair labor practices of the respondents which prolonged the strike, to remedy the respondents' refusal to reinstate and their discriminatory discharge of the above-mentioned employees, the names of said em- ployees being listed in Appendices B and C, attached hereto and part hereof, and in effectuation of the policies of the Act, we shall order the respondents, and each of them, to offer each of said em- ployees named in Appendices B and C, immediate and full reinstate- ment to said employee's former or substantially equivalent position with back pay, as hereinafter set forth, and without prejudice to said employee's seniority and other rights and priveleges.$' If there be not sufficient employment immediately available for all those to be offered and who accept reinstatement, then the respondents shall dis- miss or cause to be dismissed, to the extent necessary, employees of the Woonsocket plant hired after February 20, 1939, and not on the pay roll of the Rayon Company of February 19, 1939, in order to provide employment for those to be offered and who accept reinstate- ment. If despite and after such it dismissal of all such employees there still not be sufficient employment immediately available for the remaining employees in the spinning department including all those to be offered and who accept reinstatement, then all available posi- tions after such dismissal shall be distributed among such remaining employees, including those to be offered and who accept reinstate- ment, following such a system of seniority or other procedure as has heretofore been followed by the Rayon Company in reducing its " Matter of Continental Oil Company and Oil Workers International anion, 12 N. L. It B. 789, mod. in another respect and enf in Continental Oil Company v. National Labor Relations Board, 113 F. (2d) 473 (C C A. 10), cert. granted, 61 S. Ct. 72. 117 See cases cited in footnote 75, supra. MANVILLE JENCKES CORPORATION 419 plant force. Those employees remaining after such distribution for whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered reinstatement to their former or substan- tially equivalent positions, as such employment becomes available and before other persons are hired for such work. Furthermore, we shall order the respondents, and each of them, to make whole those employees to be offered reinstatement for any loss they may have suffered by reason of the respondents' discriminatory refusal to rein- state them, which resulted in their discharge, by payment to each of said employees of a sum of money equal to the amount said employee normally would have earned as wages from the date said employee was so refused reinstatement and discharged to the date of the re- spondents' reinstatement or placement of said employee upon the preferential list above described, as the case may be, less said employee's net earnings 88 during such period.89 We also shall order certain other action which we find necessary to effectuate the policies of theAct. For reasons heretofore set forth, we shall dismiss the allegations of the complaint, as amended, with respect to Henry Martel. Upon the basis of the above findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Independent Textile Union of America, and Woonsocket Rayon Local of the I. T. U., are labor organizations, within the meaning of Section 2 (5) of the Act. 2. Manville Jenckes Corporation was and is an employer of the employees of Woonsocket Rayon Company, within the meaning of Section 2 (3) of the Act. 3: All employees of the Woonsocket Rayon Company at the Woon- socket plant, excluding office, clerical, and supervisory employees, laboratory workers, employees in the rayon inspection department, s' By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining Rork and working else- where than for the Rayon Company, which would not have been incurred but for his or her unlawful refusal of reinstatement and discharge, and the consequent necessity of his or her seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings. See Republic Steel Corporation V N L It. B., 311 U. S. 7. B° We have pointed out above that there is no satisfactory explanation in the record why the Rayon Company did not dismiss from their positions persons hired after February 20, 1939, and not on the company pay roll of February'19, 1939, and we found that had it dis- missed such persons it could have reinstated the employees who had been on strike and who in October and November 1939, sought but were refused reinstatement. 440135-42-Vol. 30-28 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD analysts, employees in the spinnerette laboratory , candle filter wrap- pers, truck drivers , janitors, and nurses, constitute , and at all times material constituted, a unit appropriate for the purposes of collective bargaining, within the meaning^of Section 9 (b) of the Act. 4. Independent Textile Union of America, was on February 27, 1939, and at all times thereafter has been , the exclusive representative .of all employees in such unit for the purposes of collective bargain- ing, within the meaning of Section 9 (a) of the Act. 5. By refusing from and after February 27, 1939, to bargain col- lectively with the Union , as the exclusive representative of the em- ployees in the above-stated unit, the respondents, and each of them, have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 6. By discriminating in regard to the hire and tenure of employ- ment of the employees listed in Appendices B and C hereinafter, thereby discouraging membership in the Union, the respondents, and ,each of them, have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (3) of-the Act. 7. By interfering with, restraining, and coercing the employees of the Woonsocket Rayon Company at the Woonsocket plant in the exercise of the rights guaranteed in Section 7 of the Act, the respond- 'ents, and each of them, have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 9. The.respondents have not engaged in unfair labor practices respecting Henry Martel, as alleged in the complaint, as amended. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby, orders that the respondents, Woonsocket Rayon Company, Woonsocket, Rhode -Island, and Manville Jenckes Corporation, Manville, Rhode Island, and each of them, their officers, agents, successors and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Independent Textile Union of America as the exclusive representative of all employees oof the Woonsocket Rayon Company at the Woonsocket plant, exclud- ing office, clerical , and supervisory employees, laboratory workers, ,employees in the rayon inspection department, analysts, employees in the spinnerette laboratory, candle filter wrappers, truck drivers, janitors, and nurses; MANVILLE JENCKES CORPORATION 421 (b) Discouraging membership in Independent Textile Union of America, Woonsocket Rayon Local of the I. T. U., or any other labor organization of the employees of-Woonsocket Rayon Company, by refusing to reinstate the employees named in Appendices B and C attached hereto, or by in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment of employees of Woonsocket Rayon Company; (c) In any other manner interfering with, restraining, or coercing the employees of Woonsocket Rayon Company in the exercise of their right of self-organization, to form, join, or assist labor or- ganizations, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection, as guaran- teed in' Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request bargain collectively with Independent• Textile Unioi of, America, as the exclusive representative of all employees of the Woonsocket Rayon Company at the Woonsocket plant, exclud- ing office, clerical, and supervisory employees, laboratory workers, employees in the rayon inspection department, analysts, employees in the spinnerette laboratory, candle filter wrappers, truck drivers, janitors, and nurses; (b) Offer to each of the employees whose names are listed in Appendices B and C, attached hereto and part hereof, immediate and full reinstatement to said employee's former position or t( a position substantially equivalent thereto, without prejudice to said employee's seniority and other rights and privileges. If there be not sufficient employment immediately available for all those to be offered and who shall accept reinstatement, then dismiss or cause to be dismissed to the extent necessary persons employed in the Woon- socket plant of Woonsocket Rayon Company who were hired after February 20, 1939, and were not on the pay roll of Woonsocket Rayon Company of February 19, 1939, in order to provide employ- ment for the employees listed in Appendices B and C to be offered and who accept reinstatement. If despite and after such disniissal there be not immediately' available sufficient employment for the remaining employees in the spinning department including those to be offered and who shall accept reinstatement; then distribute all available positions among such remaining employees including those to be offered and who shall accept reinstatement, following such a system of seniority or other procedure as has heretofore been fol- lowed by Woonsocket Rayon Company in reducing its plant force. Place the remaining employees, for whom no employment is immedi- 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ately available after such distribution, upon a preferential employ- ment list with priority fixed among them in accordance with such system of seniority or, other procedure as has heretofore been fol- lowed by Woonsocket Rayon Company in like situations, and, there- after, in, accordance with such list, offer the employees on such list reinstatement to their former or substantially equivalent positions, as such employment becomes available and before other persons are hired for such work; (c) Make whole all employees whose names are listed in Appen- dices B and C to ,be offered reinstatement for any loss they may have suffered by reason of the respondents' discriminatory refusal to reinstate them and the respondents' discharge of them on October 21, 1939, or November 1, 1939,90 by payment to each of said em- ployees of a sum of money equal to the amount said employee would have earned as wages from the date said employee was refused rein- statement and. discharged to the date of the, respondents' reinstate- ment of said employee or placement of said employee upon the pref- erential employment list above described, less the employee's net earnings 91 earned during such period; (d) Post immediately in conspicuous places throughout the Woon- socket plant of Woonsocket Rayon Company, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to employees of said plant stating that the respond- ents, and each of them, will not engage in the conduct from which they, and each of them; have been ordered to cease and desist in paragraph 1 (a), (b), and (c) of this Order, and that they, and each of them, will take the affirmative action set forth in paragraph 2 (a), (b), and (c) of this Order, and that said employees are free to become or remain members of Independent Textile Union of America, Woonsocket Rayon Local of the I. T. U., or any other labor organization, and that the respondents will not discriminate against any employee because of membership or activity in such labor organization; and (e) Notify the Regional Director for the First Region, in writing,. within ten (10) days from the date of this Order what steps the respondents, and each of them, have taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, as amended, be,' and it hereby is, dismissed in so far as it alleges that the respondents have engaged ,in unfair labor practices with respect to Henry Martel. °° The names of those employees who were discriminatorily refused reinstatement and) discharged on October 21, 1939, are set forth in Appendix B , those on November 1, 1939, in Appendix C. n For definition of net earnings , see footnote 88, supra MANVILLE JENCKES CORPORATION 423 APPENDIX A The names as here set forth follow their listing on the pay roll of February 18, 1939, except that employees who testified and gave their names more fully are here listed with their names as given in their testimony. The 158 employees are: Ayotte,•A. Dicandia, C. Ayotte, Leo Didion, R. Ayotte, Sophie Ditson, R. Bacon, Wilfred Dunn, John Bailey, C. Durand, Napolean Ballou, Edmund Erben, R. Beauchamp , Theodore Ethier, D. Beaulieu, Lawrence Fluette, J. Armand Belisle, William Forget, H. Bergeron , D. Fortier, Aime Bergeron , Francis Gabrielson, Uno Bertrand, Romeo Gagnon, Aldor Blais, R. Garlacy, A. Blanchard , Claire Gariepy, Lionel Blanchard , Theodore Garneau, Leo. Bokoski, Stanley Giguere, Alcide Bokoski, Stephen Giguere, Noel Bouvier, Harold Gingras, Roland Boucher, A. Gnot, S. Boucher, E. Goyette, Euclide Boulet, Leo Greenlund, H. Carr, W. Greenlund, Wilfred Chmiel, John (On pay roll as Clark, Albert , Jr. J. W. Greenlund) Cook, R. Greenup, Stephen Cornell, Earl Guay, E. Cornwall, Lester Guertin, Phillippe Corriveau , H. Guilbault, Anthime Curodeau , Joseph Hagan, Francis Czarn, Florida Haggerty, Theresa Czarn, Gaetane Hernois, W. Czarn, Michael Hebert, George Czarn, Stanley Hendrickson, Carl Derosier, J. Heroux, Eldege Desaulniers , Herve Hetu, Paul Desaulniers, Roland Hetu , Robert Desbiens , Ellis Hladyk, A. Desbiens, Margaret Hoothay, John 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jarowski, Stella Joyale, O. Kaschouba, J. Kempton, Earl Kirkby, William Kwiatkowski, J. Kwiatkowski, Mary Lacourse, Joseph Laganiere, R. Lambe, Rafael Lataille, L. Landry, Oscar (On pay roll as A. Landry) Lavalle, David Leblanc, Henry Leboeuf, A. LeClerc, Edward Ledoux, P. Leduc, Carl Lefrancois, Cecile Lepley, Denaige Linton, Margaret Lombardi, Pasquale MacDonald, Ronald Mandeville, P., Sr. Mandeville, Paul, Jr. Marien, Ernest Marquis, Florian Martel, Henry Masse, A. McClure, Madelaine Millotte, D. Monk, A. Moon, Albert (On pay roll as J. Moon) Moran, J. Morel, George Nichols, E. Nordberg, John O'Rourke, Henry Paradis, Rene Pasek, Walter William Peterson, Carl Petrin, Hector Pichie, Peter Plante, Philippe Poirier, David -Rabidoux, Harvey Ramsey, L. Remillard, Edmund Renaud, Leo Reynolds, F. Reynolds, F., Jr. Ringuette, H. Rocheford, Roland Rogers, Robert Rogoze, Mary Rominyk, Mary Rondeau, Gene Ryan, T. Savini, Cecile Savoie, Adelard, Sr. Savoie, J., Jr. Savoie, Magliore Seagrave, Bradford Sheehan, Arthur Sheehan, Raymond Sherman, Edward Soling, John St. Germain, Alfred St. Germain, Wilfred St. Peter, William Susla, Stacia Tellier, A. Tessier, Aldy Tetrault, H. Thibeault, Frank Turner, Joseph Uruski, Stacia Valiant, E. Voyer, Rene Walker, George Wecal, Mary Wecal, Stephen Wilson, David Woodworth, Frederick MANVILLE JENCKES CORPORATION Bokoski, Stanley Bokoski, Stephen Boucher, E. Chmiel, John Curodeau, Joseph Czarn, Michael Desaulniers, Roland Desaulniers, Herve Garneau, Leo Greenlund, H. Greenup, Stephen Guertin, Philippe Guilbault, Anthime Hetu, Paul Durand, Napoleon Hendrickson, Carl Hoothay, John Leduc, Carl Marquis, Florian Nordberg, John APPENDIX B Lambe, Rafael LaValle, David LeClerc, Edward Mandeville, Paul, Jr. Morel, George Pasek, Walter Renaud, Leo Rabidoux, Harvey Rocheford, Roland Sheehan, Arthur Sheehan, Raymond Solina, John Wecal, Stephen APPENDIX C Pichie, Peter Remillard, Edmund Savoie, Magliore St.'Germain, Alfred Wilson, David 425