The Firth Carpet Co.

In the Matter of THE FIRTH CARPET COMPANY mid TExTfLE WORKERS UNION OF AMERICA Case No. C-15197.-Decided July 9, 1941 Jurisdiction : carpet manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements. Inferential offer of more favorable consideFation upon individual applica- tion for reinstatement in an attempt to induce abandonment of the union and concerted activity constitutes a violation of Section 8 (1). Discrimination: discharges and refusals to reinstate employees because they had. engaged in a strike ; charges of, dismissed as to three employees found to have been discharged for insubordination in refusing to obey a legitimate order of their superior ; lay-offs, charges of, dismissed. Remedial Orders: reinstatement and back pay awarded. - Mr. Daniel Baker, for the Board. Messrs. White c6 Case, of New York City, by Mr. Thomas Kiernan, for the respondent. Mr. Isadore Katz and Mr. David Ja ffg, of New ;York City, for tl e . Union. Mr. Norman M. Neel, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Textile Workers Union of America,' herein called the Union, the National Labor Relations, Board, herein called the Board, by the Regional Director. for the Second Region (New York City), issued its complaint, dated October 26, 1939, against Firth Carpet Company, Firthcliffe, New York, herein called the respondent, alleging that the respondent had engaged in and was engaging in, unfair labor practices affecting com- merce within the meaning of Section 8 (1) and (3) and Section 2- Prior to May 15, 1939, by which time the organization had filed its original charge and 'an amended charge, it was' known as Textile Workers - Organizing Committee. On May 15, 1939 , the organization changed its name to Textile Workers Union of America, and thereafter filed its second , third, fourth, and fifth amended charges. 33 N. L. R. B., No. 50. 191- 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing were duly served upon the respondent and the Union. The complaint alleged, in substance, that the respondent, at its Firthcliffe manufacturing plant located at Firthcliffe, New York, from on or about January 1, 1939, down to and including the date of the issuance of the complaint, through its supervisory and other employees, spread false rumors that business was slack because of the activities of the Union; directed disparaging remarks against the Union and its officers; . attempted to discourage membership in the Union since January. 9,.1939, by granting to individuals wage increases and other privileges which had been denied to said individuals when requested by the Union; imposed greater restrictions upon the freedom of move- ment about the plant of union members than of non-union workers;' subjected union members to a greater degree of checking up in the performance of their work than non-union workers; and attempted to induce employees to abandon. the Union by holding out hopes of reinstatement if striking employees applied individually for jobs. The complaint further alleged that the respondent discharged Alfred Zargorski 2 on May 5, 1939, Stanford Conklin on June 3, 1939, and William Lewis on July 28, 1939,3 and refuses to reinstate said dis- charged employees, or any of them, because they joined and assisted the Union and engaged in concerted activities for their mutual aid and protection. It further alleged that on May 9, 1939, the respond- ent's shipping-department employees went on strike for the reason that the respondent attempted to discriminate against some of the shipping-department employees because they joined and assisted the Union, by assigning some of • the union employees to work which they had not done before and by giving their regular work to people who were not employed in the shipping department; that on May 10, 1939, George C. Lewis, Henry Lewis, Herbert Haight, Robert Butter- worth, Joseph O'Donnell, Joseph Devlin, Daniel Hendricks, Harold • Conklin, John Schoonmaker, and Alfred Lent, shipping-department employees_who had gone on strike, requested the respondent to rein- state them to the positions held by them at the time of the strike on May 9; but that the respondent refused and still refuses to reinstate said individuals or any of them to their former positions because of their union membership and activities; and that, by the afore-men- 2 At the hearing it appeared that the name of this individual was Albert Zagorski and the complaint was amended accordingly. • 8 At, the hearing, on motion of Board's attorney, the allegations with reference to William ' Lewis' discharge were stricken from the complaint and the complaint , in so far se such allegations were concerned only, was dismissed. THE FIRTH G'ARPET C'OMPANTY 193 tioned and other acts, the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. On November 10, 1939, the respondent filed its answer admitting some of the specific allegations of the complaint, but deny- ing that it had engaged in any of the- unfair labor practices alleged 'therein and pleading certain- affirmative defenses. Pursuant to notice,4 a hearing was held on February 5, 6, 7, 8, 9, 13, 14, 15, and 16, 1940, at Newburgh, New York, before ' J. J. Fitz- patrick, the Trial Examiner duly designated by the Board. The Board and the respondent, were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues. During the course of the hearing the Trial Exam- iner made rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed . The rulings are hereby affirmed.' On May 25, 1940, the Trial Examiner issued his Intermediate Re- port, copies of which were duly served on each of. the parties. He found that the respondent lad engaged in and was engaged in 'and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. The Trial Examiner recommended that the respondent cease 'and desist from such unfair labor practices and take certain affirmative action in order to effectuate the policies of the Act, and further recommended 'that the=complaint be dismissed with respect to.the alleged discriminatory discharges of Alfred Zagorski and Stanford Conklin and the alleged discriminatory refusal to reinstate George C. Lewis, Alfred Lent, and Daniel Hendricks. He also recommended dismissal of certain independent charges of the violation of Section 8 (1) of the Act. Thereafter, the respondent and the Union duly filed exceptions to the Intermediate Report. Pursuant to notice, a hearing for the purpose of oral argument was duly held on September 10, 1940, before the Board, at Washington, D. C., in which the respondent and the Union participated . Briefs were duly filed with the Board by both parties. The Board has considered the exceptions and the briefs and save as the exceptions are consistent with the findings, conclusions, and order herein , finds them to be without merit. Upon the entire record in the case, the Board makes the following : One continuance , of the hearing as originally scheduled ways granted by the Regional Director on motion of the respondent. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT . The respondent is a New York corporation engaged in the business of manufacturing and distributing woolen carpets and rugs. It main-, Mains factories and warehouses at the cities of Firthcliffe, Newburgh, and Auburn, in the State of New York. This case is concerned only with the respondent's operations at its Firthcliffe plant. The principal raw materials used by the respondent in the' manu- facture of the aforesaid products at its three plants, are wool, cotton, and jute yarn. , All the 'wool and cotton used by the respondent and between 80 and 85 per cent of the jute yarn used is obtained from outside the State of New York. Of the total raw materials used by the respondent at its three plants, 50 per cent are used at its Firthcliffe. plant. _ The respondent sells and ships 85 per cent of its total products to customers located in States, other than the State of New York. Forty per cent of the total 'output of the respondent at its three plants is. manufactured at the Firthcliffe plant. The respondent spends more than $500,000 each year for the raw materials 'used at all its plants, and receives more than $500,000 each year for the sale of the products manufactured at all of its plants. The respondent in its answer, and at the hearing, admitted the interstate character of its business. II. THE ORGANIZATION INVOLVED Local 106 of Textile Workers Union of America is a labor organiza-' tion affiliated with the Congress of Industrial, Organizations, ad- mitting to membership production employees of the respondent's Firthcliffe plant. . III. THE UNFAIR LABOR PRACTICES A. Background The Union came into existence at approximately the time of a strike at the Firthcliffe plant which occurred on April 30,. 1937. On May 26,1937, the strike, was settled when the respondent and the Union signed a 1-year contract covering wages, hours , and working , condi-. tions' at the Firthcliffe and Newburgh plants of the respondent. In the• contract the respondent recognized the Union as the sole agency for collective bargaining for all the workers in both manufacturing. plants, granted a 10-per cent wage increase , and agreed to take back all strikers without discrimination . It. was also agreed "there shall be no lock-out by the firm, and there shall ' lie no strikes or stoppages by the workers during the period of this agreement . In the event THE FIRTH CARPET COMPANY 195 of a stoppage, the Union undertakes to send the workers back to work." This contract expired on May 26, 1938. At its expiration, a union committee requested that the contract. be renewed. The re- spondent refused to renew it, claiming that the Firthcliffe Workers Protective Association, herein called the F. W. P. A., had submitted proof that it represented a majority of the employees. Thereafter, the Union filed charges and amended charges with the Regional Director for the Second Region in New York City against the respondent, and on September 29, 1938, the Board issued its com- plaint-against the respondent charging it with domination of and inter- ference with the formation and administration of the F. W. P. A., and contributions of supportthereto, rind further alleging that the respond- ent had, by urging, warning, and persuading its employees to refrain from becoming members of the Union, by keeping ,under surveillance the meetings of the. Union, and by other acts, interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. A hearing on this complaint was held from November 14 to December 21, 1938, at Newburgh, New York. On December 22, 1938, the respondent, the Union, and counsel for the Board entered into a stipulation in settlement of the case. On January 4, 1939, the settlement was approved by the Board and an order and decision was entered providing, among other things, that the re- spondent cease and desist from discouraging membership of ifs em- ployees in, the Union or any other labor organization, and withdraw any and all recognition from the F. W. P. A. as a representative of the respondent's employees for the purpose of dealing with the respondent as the representative of its employees concerning grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment.5 Under a supplemental agreement entered into at the same time pro- vision was made fora consent election to be held among the employees of the Firthcliffe plant to ascertain, whether or not they desired to be represented by the Union. 'This consent election was held at the plant under the auspices of the Board on January 9, 1939, and the Union failed to obtain a majority of the votes of the employees. B. Interference, 'restraint, and coercion According to the undisputed testimony of George Cutler, employee in the blending department, Superintendent Jennings of that.depart- ment called him into a corner in April 1939 and said that "That fellow over at Canterbury was coming over there raising hell, that we were misused," and said further, that he meant "that God-damn Jew 5Matter of The Firth Carpet Company and Textile . Workers Organizing Committee, 10 N. L. R. B. 944. 450122-42-vol. 33 14 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD over'at Canterbury"-referring to one Burton who was then organizer for the Union. We find that by Superintendent Jennings' statement and disparagement of the union organizer, the respondent interfered with, restrained, and coerced the employees in the exercise of the .rights guaranteed in Section 7 of the Act. We concur in'the Trial Examiner's findings that the allegations. of the complaint that the respondent spread false rumors that business had been slack because of the activities of the Union, discouraged union membership by granting wage increases and other privileges to indi- viduals which had been denied them when requested by the Union, imposed greater restrictions upon the freedom of movement about-the plant of union members than of non-union employees, and subjected union members to a greater degree of. checking on the performance of their work, are not sustained by the evidence. C. Refusal to reinstate 10 employees in the shipping department L Sequence of events . On the morning of May 9, 1939, there was a back-log of orders in the main office with some possibility of cancellations by customers as a result of slow-delivery. Charles Koch, foreman of the.shipping department, instructed the three "boxers," 6 George C. Lewis, Alfred Lent, and Daniel Hendricks, temporarily to quit placing rugs in boxes and start carrying already boxed rolls to the markers.' At that time the boxers had about six rolls on the floor waiting to be boxed. Lewis, president of the, Union, told Koch that boxing was" their job and they had enough work to keep them busy boxing and loading; that' before doing the other work requested, the men wanted to take it up with their shop chairman, Henry Lewis." Henry Lewis asked.Koch to guarantee in writing that if the boxers helped the markers, their boxing work would not be done by others, and further, that they would get time and one-half if, upon their return to that work, it were necessary to work overtime to complete it.9 6 The work of the boxers consisted of making out tickets for rugs after they were brought from the finishing room, wrapping the rolled rugs, or "rolls," in paper and taping them ; and then placing them in boxes which they made of plywood boards, and nailing on the tops and banding the boxes. They also "dug out" boxes and rugs from stock for the cut-. order department, which consisted of removing rugs of certain patterns and numbers after they were boxed and marked in order that they might be taken to the cut-order department. They also spent on an average from 2 to 21/2 hours a day loading. 4 The markers carried boxes dug out, of stock for them by the boxers, to the marking place by means of a hoist and then engaged in marking them for shipment. s George C. and Henry Lewis testified that the boxers did not want to carry rugs because if the rolls piled up in the boxing department, which had happened before, non-union carpenters would be brought in again to do their work and they feared that the carpenters might get the work of boxing permanently. Henry Lewis testified that he demanded a written guarantee because they had a previous, "sort of an agreement" with former Foreman Smith that no loading of shipments would, THE FIRTH CARPET COMPANY 197 Koch took the problem to the main office and shortly returned, telling the men that no guarantees would be given; that unless the three men selected. did as instructed, they could go home; that they had to "get that job out." George C. Lewis inquired if the three were discharged, and Koch said that they were not discharged, but that it would, be referred to the office for decision. The, three boxers then left the plant. The. same day a conference was held in the Board's Regional Office in New ,York City attended by the Regional Director, union officials, and the respondent's director Hector L. Gaudette, at which time the Union sought the reinstatement of the three boxers. Gaudette said he wished to hear "the firm's side of the story" before making a decision. On the next day, May 10, which was not a regular pay day, the three boxers 'received their pay checks from the respondent. Al- though Koch, foreman of the shipping room, when asked by the three boxers if they were discharged,. replied in the negative, he added that the question of discharge was for the. main office to decide. We are of the opinion that the message Koch brought from the main office, that the boxers were to do the work assigned them or go home, constituted a-discharge of these employees since they left the plant at once, applied through the Union for reinstatement, and the. i espondent sent them their pay checks the next day. We find that the three boxers were discharged by the respondent on May 9, and that the action of the respondent in sending them their checks the next day was in pursuance ,of the prior discharge. When the three boxers left the plant on May 9, Henry Lewis, the Union's steward in the shipping department, walked out and also called out the remaining six union men' in the shipping room 10 in protest. -On May 10 these seven employees also received their pay checks from the respondent. We find that on May 9 -these seven employees went on strike in protest of the discharge of the three boxers and that by sending their checks to them on May 10, which was not a regular pay day, the respondent discharged them. Thereafter, efforts were made by, the Union to obtain reinstatement of all 10 of the shipping-department employees. On May 12, a conference was held in Gaudette's New York office. Gaudette was unwilling to assume authority to reinstate the men and referred the question to R. R. Matthews, superintendent of the Firtheliffe plant. On May 16, a conference took place at the plant with union repre- sentatives, Matthews, and Benoit, personnel manager of the Firth- cliffe plant, as.well as Gaudette in attendance. At that time Matthews be done by anyone outside the shipping department and that at least one shipping-room employee was to supervise the putting away of stock in the warehouse located in Newburg; and that the respondent did not live up to this understanding . The respondent disputes the existence of any such agreement . We do not deem it necessary to resolve this conflict. 10 Herbert Haight, Robert Butterworth , Joseph O'Donnell, Joseph Devlin , Harold Conklin, and John Schoonmaker. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreed to take under advisement the question of reinstatement of the 10 employees and inform the Union of his decision. On May 24, Matthews informed the Union by letter that none of the 10 would be. reinstated." The letter concluded as follows : As to what action we would take if any of the 10 employees involved' filed an application for reengagement is a different question. It is one to which very careful consideration would be given in the light of the necessity for keeping the plant running in an orderly manner, and it may be that at some time in ,the future it will be appropriate for these men to apply for reinstatement. Matthews testified that the letter was written after consultation with the respondent's counsel, and that the last paragraph, above quoted, was intended to mean "just what it says" and testified further as follows: Q. ..: I want to know whether it isn't true that you intended these men to believe that if they filed applications as new em- ployees that you might give them some consideration? - A. It doesn't mean because they q re fired they are out for all their entire life. Q. These men had applied for reinstatement through the union, had they not . . ? A. Yes. Q. Did you give them some consideration through the union?* A. Not at that time. Q. But it was, your idea that if they showed a willingness to come back to work, as individuals; that if they abandoned the union and filed new applications as new employees, you would . consider them? A. That is not my idea . . . Q. What is your. idea? A. That sometime in the future they may apply and it would be considered. Q. Why-weren't you ready to consider it then and'not sometime in the future? A. Because we could not afford to take the risk of having the plant stopped -all the time. After the seven shipping-room employees went on strike on May 9, 1939, the respondent established a makeshift arrangement to carry on the work of that department. Using the non-union employee Cocks, and the' shipping-room clerk Seaman, as a nucleus; it built up a working arrangement by the transfer of employees from other depart- A copy of the letter was also sent to each of the 10- emlloyees and to the Board's Regional Director. . THE FIRTH CARPET COMPANY 199 nzents. The respondent admits in its brief. that it had only a makeshift arrangement at the time that reinstatement was requested.12 There- after_it hired a considerable number of persons in other departments at the plant,,and gradually decreased the number employed in the shipping department until, at the time of the hearing, it operated the shipping department with a reduced force of eight men. / 2. CONCLUDING FINDINGS On the basis of the foregoing findings of fact, we conclude that the three boxers were discharged on May 9, 1939, for insubordination in refusing to obey a legitimate order of their superior. Since they were discharged for proper cause, the respondent was entitled to refuse to reinstate them for the same reason, and we herewith find that the respondent refused to reinstate the three boxers because of their insub- ordination on May 9. We, therefore, find, as did the Trial Examiner, that the respondent by discharging and,ref using to reinstate George C. Lewis, Alfred' Lent, and Daniel Hendricks did not discriminate in regard to their hire, tenure, terms, and conditions of employment 'in order to discourage membership in a labor organization. A different situation is presented by the facts. with regard to the other seven shipping employees. On May 9 these seven employees went on strike in protest against what they considered an unfair order issued to the three boxers. This they had a legal right to do. On May 10, the respondent by paying them off discharged them, and on May 24 refused by letter to reinstate them-upon their joint application. The Trial Examiner found that the respondent's reason for these discharges and the subsequent refusal to reinstate was the fact that they had engaged in a strike-a concerted activity for their mutual aid and protection.13 "The respondent 's brief in this connection reads as follows : "While it is true, as the Trial Examiner found, that when the seven men in question applied for reinstatement, a makeshift arrangement had been gotten up for handling the shipping-department work by drawing off slack men from other departments of the mill and placing them . in the shipping department to perform the work, nevertheless, from the nucleus thus formed , a shipping department was organized which proved to be eventually so much more efficient . 1 By Section 2 (9) of the Act , the term "labor dispute" includes any controversy con- cerning terms , tenure, or conditions of employment . By Section 2 (3), an employee who ceases work because of or in connection with a current labor dispute retains his employ- ment status . By, virtue of Section 2 (3) and ( 9) the seven shipping-department em- ployees remained employees after May 9, 1940, entitled to the protection of the Act. National Labor Relations Board v. Mackay Radio & Telegraph Company, 304 U. S. 333'; National Labor' Relations ' Board v. American Manufacturing Company, 106 F. (2d) 61 (C. C. A. 2), aff'd as modified 309 U. . S. 629; Black Diamond S. S. Corp. v. National Labor Relations Board, 94 F. ( 2d) 875 ( C. C. A. 2 ), cert. denied 304 U. S . 579; National Labor Relations Board v. Good Coal Company, 110 F. ( 2d) 501 (C. C. A. 6), enf'g Matter of The Good Coal Company and United Mine Workers, District 19, 12 N. L. R. B. 136 , cert.. denied 310 U. S. 630. . Moreover, whether or not they were employees of the respoundent; a refusal to employ them for unlawful reasons would contravene Section 8 ( 1) and (3) of the Act . National Labor Relations Board v . Phelps Dodge Corporation, April 28, 1941, 313. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent, however, contends, as stated in its letter of May 24,. that these seven shipping-department employees were refused rein- statement because of their prior interferences with and stoppage of work, and because of their inefficiency. The stoppages in the shipping department occurred in June and September= 1937, and in March 1938, more than . a year before the strike and refusal to reinstate here in- volved. In each of these instances the matters in dispute were settled within a few hours and' work was resumed. Another incident relied- on by' the respondent relates to an alleged admission by George C. Lewis, one of the three boxers, in August 1938, that the shipping-department employees were deliberately slowing down at their work. From an examination of all the evidence, we find, as did the Trial Examiner, that neither George C. Lewis nor his brother, Henry Lewis, ' who was the union's shop steward, made the alleged statement and we further find that there was no admission by ,shipping-department employees that they were "laying down" on the j ob.14 The respondent also cites the failure of shipping-department em- ployees to respond to a flood emergency alarm at the plant on Septem- ber 21, 1938. At the time of this incident each of the employees gave the respondent a reasonable explanation for his absence, which was accepted by .the respondent, and no disciplinary action was taken at that time. . At the hearing the respondent attempted to -establish that the ship- pers "loafed" and were "slow" at their work. We agree with the Trial Examiner that these allegations. are not borne-out by the evidence. U. S. 177; National Labor Relations Board V. Waumbec Mills, Inc., 114 F. ( 2d) 226 (C. C. A. 1), enforcing as modified in a particular not here relevant , Matter of Waumbee Mills, Inc. and United Textile Workers o f America, 15 N. L. R. B. 37. 14 The evidence discloses that in August 1938 the men in the shipping department com- plained about the presence in that department of one Nash , assistant to Traffic Manager Koch , assigned to make a study which required his part-time presence there. At the hearing Koch testified that during the course of the ensuing discussion Henry Lewis said,. "Yes, and let me tell you, many a day we laid down on the job ever since Nash has been down here." Joseph W. Smith , who was foreman of the shipping department at that time, testified that George C. Lewis said , "We are laying down on the job, and we want you to know we are laying down on the job. You have deceived us. The Company has deceived us." Henry Lewis testified '.'that my brother ( George C. Lewis ) 'made a state- ment that whenever Mr. Nash stood on top of them and watched them all the time, that they didn 't break their necks ; sometimes they didn't go quite as fast as they did 'at other times; they just worked steady . And that is when Mr . Koch claimed that Mr. Lewis stated be was laying down on the job, and there was quite a discussion about it, whether that was the way he interpreted the statement that was given , or. whether it was a fact." George C. Lewis testified that the men thought that Nash was a spy. "So I made a state- ment that the men, while Mr. Nash was around , never rushed , just worked steady, and kept their eyes on Mr. Nash . And from that Mr. Koch said , 'Well, then , you mean to state that you are laying down,' and I . said. 'no.' " We credit the testimony of Henry Lewis and, George C. Lewis, and find in accord with the finding of the Trial Examiner, that neither Henry Lewis nor George C. Lewis made the statement attributed to George, C. Lewis in the respondent's letter of May 24, 1939 , and that there was in fact no admission of a slow-down in work except ,i as stated by 'George C. Lewis, to the extent that the-men were distracted from their work by the presence of Nash whom the men suspected of espionage. THE FIRTH CARPET COMPANY 201 The record discloses that the respondent admitted that the work of a number of the shipping-department employees was satisfactory, and that the wages of four of the seven employees here involved had been increased in January 1939. Furthermore, the evidence discloses that- the alleged "]oa.fing" was engaged in by at least one non-union employee, who was not discharged or even reprimanded, so far as the record indicates. With respect to all the reasons advanced by the respondent we regard it as. particularly significant that no disciplinary action was, taken by-the respondent at- the time any of the incidents occurred', and it was only after the strike of May 9, 1939, that the respondent made use of these incidents as justifying the discharges and refusal to rein- state. We, agree with the Trial Examiner and accordingly find that none of the above-stated incidents was the reason for the respondent's refusal to reinstate the seven striking shipping-department employees. On the other hand, the discharge of the seven on May 10 came immediately after they took concerted action by going on strike in protest of the discharge of the three boxers. In contrast to the boxers who Were discharged for insubordination, the respondent offered no explanation of its action in discharging the seven, and in its brief ad- mitted that the discharges were the result of the strike action.'-, It seems clear to us that the respondent's action in discharging the seven employees on May 10 was taken for the reason that they had engaged in a strike on May 9-which they had a lawful right to do. We are, likewise of the opinion that the fact that these employees went on strike motivated the respondent in its subsequent refusal., to reinstate them. Throughout the respondent's, letter of May 24 there are references to previous collective action engaged in by these em- ployees, which reveal the respondent's hostility to any collective action by its employees. Moreover, Matthews, the respondent's plant super- intendent, admitted at the hearing that the basis of his refusal to reinstate at least one of the seven strikers-Schoonmaker-was the fact that "he was in the group" of strikers. Finally, the respondent's letter of May 24 and Matthews' explanation of it, plainly invited the strikers to abandon their group application and to apply individually for reinstatement, inferentially offering them more favorable con- sideration if they did so?s Upon the entire record, we find as did 15 The respondent in its brief argues. that, "the record is clear that what the company acted upon in discharging these seven men was (inter alia ) their refusal to work in sympathy with their three fellow employees who had refused to follow the legitimate instructions of their foreman . . Thus the respondent admits in effect that their union and concerted activity caused the seven shipping employees ' discharge. 16 It is true that the respondent 's letter . refers to "any of the 10 employees ." However, we have found that the three boxers were discharged and refused reinstatement because of their insubordination on May 9, in contrast to the remaining seven shipping-department employees who we find were discharged, as well as refused reinstatement , because they engaged in concerted activities for their mutual aid and protection . We are, therefore, of the opinion that the fact that the discharged boxers also applied jointly for reinstate- ment was not the operative cause of the respondent's refusal to reinstate them. 202 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD the Trial Examiner, that the respondent discharged and refused to reinstate Henry Lewis, Herbert Haight, Robert Butterworth, Joseph O'Donnell, Joseph Devlin, Harold Conklin, and John Schoonmaker because of their union and concerted activities, thereby, discouraging membership in the Union by discrimination in regard to the hire and tenure of employment of such employees, and that the respondent has thereby engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. We further find that by such action, and by attempting to induce abandonment of. the Union and concerted activity by inferentially offering more favorable consideration upon individual application for reinstatement, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The two lay-offs .Albert Zagorski. Zagorski started to work at the Firthcliffe plant as a carpenter's helper in the maintenance or yard gang at 40 cents an hour on July 21, 1937, and joined the Union at that time. He worked steadily in this position until January 23, 1938, when he was laid off for a month. On March 7, 1938, he was placed temporarily in the card room on the third shift at 55 cents an hour, as a handy man feeding cards. Four days later, on March 11, 1938, the third shift was discontinued, and he was transferred back to his old job as a carpenter's, helper in the maintenance gang at the old rate of 40 cents an hour. On January 23, 1939, Benoit told him that there was very little work in the carpenter's department and that they did not need a helper, and transferred him to the fitting department at the same wage temporarily to replace a finishing machine employee who was ill. Zagorski worked at this job until May 5, 1939. On that date another finishing machine broke down and Zagorski was replaced by the operator of that machine who had greater seniority than Zagorski. Zagorski has not been rehired. Zagorski testified that at the time he was transferred to the tem- porary fitting-room job, he had been for some time a boxing instructor for the "Junior Union," apparently an organization. of the junior members of the Union, and that he asked Benoit if he was being "shoved around" because of this activity. He testified that Benoit said, "No" and promised him steady work. Benoit denied that he promised steady work to Zagorski and explained. that he could not and did not promise steady work to any of the employees because' of the fluctuation in the number of workers in the different depart- ments due to business conditions over which the respondent had little control. THE FIRTH 'CARPET COMPANY 203 Benoit admitted that one Ketcham, who was laid off on May -5 with Zagorski, was put back to work again on May 11 as a spool boy in the twisting department. He explained that Ketcham desired to learn the business generally and was transferred from one depart- ment to the other as occasion required and also worked in the office; that he had greater seniority, was an excellent worker, more fitted for the type of work in the fitting and twisting departments than Zagorski had proved to be,-and more'likely to learn to run a machine; and that he was transferred to the twisting department at the request of the foreman. The respondent admits hiring a number of new employees (from May 5, 1939, up to February 10, 1940, from a list of applicants on file in Benoit's- office. Some of these jobs were bobbin-boy jobs in the fitting department and other positions requir- ing no skill, for which Benoit admitted •Zagorski would have been qualified. Benoit insisted, however, that he did not know Zagorski was available and that he had not requested any type of work. Za- gorski did not claim that he asked for a job in the fitting department after he was laid off, but he did state that he had inquired about a position in the card room. He admitted that Benoit told him that he was being transferred to the spinning room in January 1939 "tem- porarily because the carpenter work is kind of slack." It appears that the job the respondent expected to call Zagorski back for was his old job as assistant carpenter, when and if such a job became available. There is no showing that respondent has hired any assistant to the carpenters since May 5, 1939. We find, in accord with the finding of the Trial Examiner, that the respondent did not discriminate .against Albert Zagorski because of his union membership or activities. Stanford Conklin. Conklin had worked intermittently for the respondent at various jobs. involving manual labor, but requiring no particular skill, since 1919. After being away from the plant for approximately 31/2 years, he was rehired June 7, 1937, as a stock dryer in the dye house at 40 cents an hour. At that time he joined the Union but there is no showing that he was active in its affairs. In ,December, 1938, he was laid off because of slack work, and, being unsuccessful in his efforts to secure reemployment, he requested the Union to intercede with the respondent to that end. Henry .Lewis., as a• member of the union committee, interviewed Benoit the week before or the week following January 1, 1939, and Benoit stated that because of a physical defect Conklin could not operate a machine. On,February 1, 1939, Benoit put Conklin to work as a weight sorter in the blending department.' He told Conklin at that time that he would try him out for a month at 45 cents an hour and that after that he would get 50 cents an hour if he was able to do the job and if there was steady work in the department. Benoit also stated at 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that time that he had selected this particular: job for Conklin'because there was no moving machinery and warned him to be careful because of his previous poor accident record. On March 27, 1939, Conklin was raised to 50 cents an hour. On June 30, 1939, Conklin. was laid off because the third shift in his department was discontinued and a man from- that shift with more seniority than Conklin replaced him. Conklin has not been reemployed, although he has requested work on several occasions, stating that he was willing to-do any kind of work for which he was fitted. Gibson, another man laid off in the weight room with Conklin, was subsequently- put to work by the respondent in the card room. The respondent contends that its experience with Conklin in the past had shown that, because of his physical 'handicap, it was unsafe to put him on a machine or on any job where there was moving machinery involved or nearby. Conklin admitted having secured first aid as a result of the following acidents : On June 2, 1938, a- belt caught three of his fingers; on September 15, 1938, he struck his leg on a truck; on November 3, 1938, his arm was burned' when it slipped and struck a steam pipe as he was putting a belt on a machine; on November 15, 1938, the bottom of a dry kettle slipped off the hook and hit his shoulder as he was hoisting the kettle on to a table. The respondent claims that it has considered him on almost every new unskilled job of ordinary manual labor that has arisen but that so far none that he would be qualified to fill has appeared, either because the job involved working on machinery or near moving machinery. We find, as did .the Trial' Examiner, that the respondent has not discriminated against Conklin because of his union membership or activities. IV. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act, and to restore as -nearly as possible the conditions which existed prior to the commission of the unfair labor practices. , We have found that the respondent by discharging and refusing to reinstate Henry Lewis, Herbert Haight, Robert Butterworth, Joseph O'Donnell, Joseph Devlin, Harold Conklin, and John Schoonmaker, discriminated in regard to the hire and tenure of their employment in violation of Section 8 (1) and (3) of the Act. We shall, therefore, order the respondent to offer them reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges and with back pay. The respondent shall make said seven employees whole for any loss of pay they or any of them may have suffered by reason of said dis- THE FIRTH CARPET COMPANY 205 crimination, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from May 10, 1939, to the date of offer of reinstatement, less his net earnings 17 during said period. Reinstatement shall be effected in the following manner : We shall require the respondent to displace employees by transfer or otherwise who have succeeded to the former position of any of` these employees. Further, all employees hired after May 10, 1939, for the same or sub- stantially equivalent positions, shall, if necessary to provide employ- ment to the persons to be offered reinstatement, be dismissed. If, even after this is done, there is not, by reason of a reduction in force of employees needed) sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining em- ployees, in accordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities following a system of seniorty to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence and shall thereafter, in accordance with such list, be reemployed in their former or substantially equivalent posi- tions as such employment becomes available and before other persons are hired for such work. Upon the basis of the foregoing findings of fact and upon the entire record, the Board makes the following : CONCLUSIONS or LAW 1. Textile Workers Union of America, Local 106, is a labor organi- zation, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire alld tenure of employ- ment of Henry Lewis, Herbert Haight, Robert Butterworth, Joseph O'Donnell, Joseph Devlin, Harold Conklin, and John Schoonmaker, thereby discouraging membership in the Union, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. "By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee In connection with obtaining work and working else- where than for the respondent, which would not have been Incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. It . 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 Corp . v. National Labor Relations Board, 311 U. S. 7. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the respond- ent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not discriminated in regard to the hire and tenure of employment of George C. Lewis, Alfred Lent, Daniel Hendricks, Albert Zagorski, or Stanford Conklin within the meaning of Section 8 (3) of the Act. ORDER On the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, The Firth Carpet Company, Firthcliffe, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of Amer- ica, Local 106, or any other labor organization, by discharging or refusing employment to any of its employees, or in any other manner discriminating in regard to the hire and tenure of their employment, or any term or condition of their employment;, (b) In any manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively with repre- sentatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid of protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act : (a) Offer to Henry Lewis, Herbert Haight, Robert Butterworth, Joseph O'Donnell, Joseph Devlin, Harold Conklin, and John Schoon- maker immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority and other rights and privileges in the manner set forth in the section en- titled "The Remedy" above, placing these employees for whom employ- ment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (b) Make whole Henry Lewis, Herbert Haight, Robert Butter- worth, Joseph O'Donnell, Joseph Devlin, Harold Conklin, and John Schoonmaker fo'r any loss of pay they may have suffered by payment THE FIRTH CARPET' COMPANY 207 to each of them an amount equal to that which he would normally have earned as wages during the period from May,10, 1939, to the date of' the respondent's offer of reinstatement or placement upon a prefer- ential list less his net earnings 18 during said period; (c) Post immediately in conspicuous places in and about its Firth- cliffe plant located at Firthcliffe, New York, for a period of at least. sixty (60) consecutive days from the date of posting, notices to its employees stating : (1). that respondent will not engage in the'conduct from which it is ordered to cease and desist in paragraph 1 of this Order; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) and (b) of this Order; and (3) that the respondent's employees are free to becoii e or remain members of Tex- file Workers Union of America, Local 106, and that the respondent will not discriminate against any employee because of membership in or activity in that organization;. (d) Notify the Regional Director for the Second Region in writing within ten (10) days of receipt of this Order what steps the respond-. ent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint in so- far as it alleged the discriminatory discharges of Albert Zagorski and Stanford Conk- lin, and the discriminatory refusal to reinstate George C. Lewis, Daniel Hendricks, and Alfred Lent, and in so far as it alleged that by spreading false rumors that business had been slack because of activities of the Union, granting wage increases and other privileges to individuals which had been. denied them when requested by the Union, imposing greater restrictions upon the freedom of movement about the plant of union members than of non-union employees, and subjecting union members to a greater degree of checking on the performance of their work, the respondent discouraged membership in the Union,,be, and it hereby is, dismissed. MR. EDWIN S. SMITH, dissenting in part : I concur in the Decision and Order except in so far as it dismisses the part of the complaint which alleges that the respondent unlawfully discriminated against George C. Lewis, Alfred Lent, and Daniel Hendricks, the three,boxers employed in the shipping department. On May 9, 1939, Foreman Koch told these three employees to quit boxing temporarily and to carry already boxed rolls to the markers. The boxers, fearing that this might be the first step toward supplant- ing them with non-union carpenters, asked Koch, through officers of the Union, to guarantee, in part, that if they helped the markers their boxing work would not be assigned to other persons. After con- sulting with other officials of the respondent, Koch refused the men's 18 See footnote 1 7, supra. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD request and demanded that they help the markers, as directed, or go. home. Koch stated explicitly.that the boxers were not then being discharged but - that this matter would be referred to the - office for decision. The three boxers then left the plant and were followed by the other seven union shipping employees who protested the respond- ent's treatment of the boxers. The same day the Union applied to the respondent for the reinstatement of the boxers. On May 12, the Union made a`similar application in behalf of all 10 employees. Prior to May 24, the respondent had not expressed any decision as to whether it would grant or deny the applications. On May 24, the respondent issued its letter in which it refused to reinstate the boxers and the other shipping employees because they had engaged in the above described and similar concerted activity. . Clearly the 10 employees ceased work on May 9, 1939, because of and in connection with a current labor dispute within the meaning of Section 2 (9) and therefore continued to be employees within the meaning of Section.2 (3) of the Act. And whether or not they re- mained employees, they were entitled to protection against the unfair labor practices denounced by the Act. 19 The respondent, by refusing to give employment to these 10 shipping employees because of their union and concerted activity, engaged in unfair labor practices within the meaning of Section 8 (1) and (3). The Board finds on these grounds that the respondent discriminated unlawfully against seven of the shipping employees but refuses to 'make a similar finding in the case of the three boxers. The respond- ent's letter of May 24 and the other circumstances in the record show that its reasons for refusing to give employment to the seven shipping employees, which the Board finds were unlawful, were also operative in its refusal with respect to the three boxers. I am at a loss, therefore, to understand why the Board dismisses the complaint in respect to the three boxers, although sustaining the complaint as to the seven shipping employees. - The majority apparently seeks to distinguish between the three boxers and the other seven shipping employees on the ground that. the former were discharged on May-9 before, and the latter on May 10 after, the walkout. But in my opinion the distinction is both fic- titious -and immaterial : fictitious because none of the 10 employees,. was definitely terminated until May 24- when they were all refused. reinstatement in an identical letter; 20 immaterial because the respond- 19 National Labor Relations Board v. Phelps Dodge Corporation, decided by the Supreme Court of the United States April 28, 1941. 20 I 'believe the majority finding that the boxers were discharged on May 9 to be in error. The direction to the boxers to work or go home is relied , upon as constituting a discharge. Standing by itself, this expression is ambiguous on the question of whether a-discharge was intended . But the ambiguity is resolved 'against the construction of the Board by Koch's contemporaneous denial that the men were discharged and statement that the THE FIRTH CARPET COMPANY 209 .'ent's reasons for severing them were discriminatory whenever such severance occurred. The respondent made plain in its letter of May 24 21 and in its actions that all 10 were being denied employment because of their past and current collective activity. In respect to the respondent's motivation, the only ground offered by the majority for distinguishing between the boxers and the other. union shipping employees is the finding that the former engaged "in insubordination in refusing to obey a legitimate order of their supe- rior." But this finding is predicated solely on the employees' peaceful and entirely lawful collective effort; for example, to obtain, a. guaran- tee that the boxers would not be displaced by non-union carpenters, activity which constitutes part of a controversy concerning terms and conditions of. employment within, the meaning of Section 2 (9) and.concerted activity within the proection of Sections. 7 and 8 of. the Act. I cannot agree that such activity constitutes insubordina- tion justifying a,discharge or refusal to reinstate, nor do I understand how the majority can so conclude in respect to the boxers, since, in respect to the remaining employees, it has based its finding of unfair labor practices on the respondent's discouragement of and discrimina- tion because of this very activity. The Board's dismissal of the. complaint- as to the boxers is incom- prehensible unless it be interpreted as a determination that their collective activity, while lawful, was nevertheless improper and hence not deserving of protection against the respondent's unfair labor prac- tices. But the Board does not explain wherein a peaceful effort by the employees to obtain a guarantee that they would not be replaced by non-union employees is unjustifiable. Moreover, whether such concerted activity is wise or imprudent, the employer who discrimi- nates on account of it violates the Act.22 The majority by holding matter would be referred to the main office for decision , as well as by the respondent's subsequent reference , in a conference with the Union, to Koch' s denial , as showing that the men were not discharged on May 9 . Other indicia relied upon , that the men left the plant at once and applied through the Union for reinstatement , are equally consistent with the-hypothesis that they were not discharged. A further incident , cited•in support of the findings that the boxers were discharged on May 9 and the other employees on May 10, is the respondent 's sending them.their checks on M ty 10. While; under other circumstances, this might be probative of a discharge , such inference is dispelled by the circumstances set forth above and by the respondent 's apparent position that it sent the checks because of its belief that State law required payment to an employee "when he quits work." 21 The respondent stated inter alia in its letter of May 24, in reference to all 10 men "We have reached a point where these interferences and stoppages of work can no longer be tolerated . We are, therefore, advising you that these men will not be reinstated." 22 National Labor Relations Board v. Mackay Radio d Telegraph Company, 304 U. S. 333 ; see National Labor Relations Board V. Good Coal Company, 110 F. ( 2d) 501 (C. C. A. 6), enf'g Matter o f The Good Coal Company and United Mine Workers, District. 19, 12 N. L. It. B. 136 . cert. denied 310 U. S. 630 ; Matter of Washougal Woolen Mills and Local 127, Textile Workers Union of America, 23 N. L., R. B. 1; Matter of Pittsburgh Standard Envelope Company and Pittsburgh Printing Pressmen and Assistants Union, No. 6/y 20 N. L. R. B. 516: Matter of Harnischfeger Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 111$, 9 N. L. R. B. 676; cf. Asso- ciated Press v. National Labor Relations Board, 301 U. S. 103, 132. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the boxers' lawful concerted activity in this case removes them from the protection afforded by the Act against unfair labor prac- tices, appears to me to have taken a dangerous step toward changing- a statute intended to protect the rights of self-organization' and col- lective bargaining into a measure for restricting the exercise of those rights. The respondent has refused to reinstate George Lewis, Lent, and, Hendricks because of their union and concerted activity thereby dis- couraging membership in the Union and infringing Section 8 (1) and 1(3). Effectuation of the policies of the Act requires that they be, reinstated with back pay, along with the other seven shipping em-. ployees, and I would so order.23 22 Since the three boxers first applied for reinstatement on May 9 , and the seven other employees on May 12, I would date their back pay awards , respectively , from May 9 and, May 12, 1939. 1