Mission Hosiery Mills-A. H. Wittenberg, Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1939

16 N.L.R.B. 925 (N.L.R.B. 1939)

In the Matter of MISSION HOSIERY MILLS-A. H. WITTENBERG, INC.
and TEXTILE WORKERS ORGANIZING COMMITTEE, LOCAL No. 99
Case No. C-901.--Decided October 30, 1939
Silk Hosiery Manufacturing Industry -Interference, Restraint , and Coercion:
expressed opposition to labor organization ; public discharge of union member
and public warning to remaining union members-Discrimination : lay-offs : for
filing charges under the Act ; discharges : for union membership and activity ;
charges of , not sustained as to four employees-Reinstatement Ordered: dis-
charged employees; employees laid off-Back Pay: awarded.
Mr. David Sokol, for the Board.
Fleming t Robbins, by Mr. Clay Robbins, and Mr. Clifford S.
Tinsman, both of Los Angeles, Calif., for the respondent.
Black, Hammack cfi McWilliams, by Mr. Carey McWilliams, of
Los Angeles, Calif., for the Union.
Mr. F. Hamilton Seeley, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Textile Workers
Organizing Committee, Local No. 99, herein called the Union, the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Twenty-first Region (Los Angeles, Califor-
nia), issued its complaint, dated May 19, 1938, against Mission Hosi-
ery Mills-A. H. Wittenberg, Inc., Los Angeles, California, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and notice of hearing thereon were duly
served upon the respondent and the Union.
Concerning the unfair labor practices, the complaint alleged, in
substance, that the respondent (1) terminated the employment of six
16 N. L. R. B., No. 77.
925
926 DECISIONSi OF NATIONAL, LABOR RELATIONS BOARD
named employees 1 solely on account of their union activities; (2)
reinstated three of these employees 2 not to their regular positions
but to inferior positions with a reduction in pay, solely on account
of their union activities; (3) demoted E. D. Vickery, an employee, to
an inferior position with a reduction in pay, solely because of his
union activity; (4) refused to reinstate to their regular positions of
employment the aforesaid seven employees, solely on account of their
union activity ; (5) by trickery and other devices, secured the union
application cards of 10 of its employees, confronted these employees
with proof that they were members of the Union, and informed said
employees that they and the Union were only there to cause trouble
and that continued membership in the Union would be the cause
for their discharge; and (6) that by the above-mentioned activities,
and by criticizing, discrediting, and reviling unions and telling its
employees that it would discharge them if they joined the Union
and that it would never recognize or have any dealings with the
Union, and by other acts, interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
Upon supplemental charges duly filed by the Union, the Regional
Director issued a supplemental complaint, dated May 27, 1938,
against the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce with-
in the meaning of Section 8 (1), (3), and (4) and Section 2 (6) and
(7) of the Act. Copies of the supplemental complaint and supple-
mental notice of hearing thereon were duly served upon the respond-
ent and the Union.
Concerning the unfair labor practices, the supplemental complaint
alleged, in substance, that the respondent (1) terminated the em-
ployment of E. D. Vickery and Thomas E. Kinney solely because
they filed charges with the Board; (2) terminated the employment of
Charles E. Wickham, an employee, solely on account of his union
activities and affiliations, and that the respondent, by these and other
acts, interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
On June 3, 1938, the respondent filed its answer to the complaint
and supplemental complaint, in which it admitted the allegations
concerning the nature and scope of its business, but denied the allega-
tions concerning the unfair labor practices.
Pursuant to notice, a hearing was held on June 6, 7, 8, 9, and 10,
1938, at Los Angeles, California, before Thomas H. Kennedy, the
1 These employees were : Harry Bell, Lester B. Routh, Oris Clinedinst, Thomas E. Kinney,
Charles E . Wickham, and Bert Swoyer.
2 These employees were : Thomas E. Kinney, Charles E. Wickham , and Bert Swoyer,
MISSION HOSIERY MILLS 927
Trial Examiner duly designated by the Board. The respondent,
- the Union, and the Board were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all parties. During the course of the hearing,
the Trial Examiner made numerous rulings upon motions and objec-
tions 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 August 12, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the respondent and
the Union. He found that the respondent had engaged in unfair
labor practices affecting commerce within the meaning of Section
8 (1), (3), and (4), and Section 2 (6) and (7) of the Act. He
recommended that the respondent cease and desist from its unfair
labor practices, reinstate with back pay five employees,3 and post
notices in its plant stating that the respondent would cease and
desist from its unfair labor practices. The Trial Examiner further
recommended that the original complaint be dismissed in regard
to E. D. Vickery, Thomas E. Kinney, Charles E. Wickham, and
Bert Swoyer, and that the supplemental complaint be dismissed in
regard to Charles E. Wickham.
On September 19, 1938, the respondent, and on September 23,
1938, the Union, filed exceptions to the Intermediate Report. The
parties, although accorded an opportunity to request oral argument
before the Board, did not do so. The Board has reviewed all the
exceptions to the Intermediate Report, and finds them without merit
except as they are consistent with the findings, conclusions, and order
hereinafter set forth.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Mission Hosiery Mills-A. H. Wittenberg, Inc., a California cor-
poration with its principal office and place of business in Los Angeles,
California is engaged in the manufacture, sale, and distribution of
ladies' full-fashioned silk hosiery. The respondent's president, A. H.
Wittenberg, owns all of the authorized capital stock of the respond-
ent, with the exception of two qualifying shares. The respondent
maintains a branch sales office in San Francisco, California. The
respondent employs 12 salesmen and 7 of these operate in States
3 These employees were Harry Bell, Lester B. Routh, Oris Clinedinst , Thomas E. Kinney,
and E . D. Vickery.
928 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
other than the State of California. The respondent also has; agents
located in Venezuela, Hawaii, and Costa Rica. There. are approxi-
mately 400 production workers employed at the Los Angeles plant.
The principal raw materials used by the respondent are silk, yarn,
elastic, dyes and chemicals, boxes, labels, and advertising supplies.
During 1937,4 the respondent purchased $250,292.37 worth of such
raw materials. Of this amount, $223,506.33, or 89.30 per cent, was
for raw materials purchased outside the State of California. The
principal raw material used by the respondent is' silk, which is pur-
chased from Japan, and which amounted to $205,472.15 during 1937.
Respondent's gross sales during 1937 amounted to $998,352.72. Of
this amount 28.01 per cent. represented sales outside the State of Cali-
fornia. The respondent's finished product is sold under the trade-
mark names of "Mission Knit," "Hollyvogue," and "Sunkist."
H. THE LABOR ORGANIZATIONS INVOLVED
Textile Workers Organizing Committee, Local No. 99, affiliated
with the Committee for Industrial Organization,5 is a labor organ-
ization admitting to membership all production employees of the
respondent, excluding foremen, supervisors, salesmen, and office help.
American Federation of Hosiery Workers is a labor organization
formerly affiliated with the American Federation of Labor and, since
March 1937, affiliated with the Committee for Industrial Organiza-
tion.5 It admits to membership production and maintenance workers
in the hosiery industry.
In December 1937, Local No. 99 of the Textile Workers Organizing
Committee was chartered. By an agreement with the American Fed-
eration of Hosiery Workers, T. W. O. C. Local No. 99 took over the
members of A. F. H. W. who were employees of the respondent. Dur-
ing 1938, the labor organization here involved has been T. W. O. C.
Local No. 99. Both it, and its predecessor, Local 43, A. F. H. W. are
herein referred to as the Union since it is unnecessary for the purposes
of this case to distinguish between membership in the two or-
ganizations.
III. THE UNFAIR LABOR PRACTICES
A. Background
In 1934 the Union had a substantial number of members among
the employees of the respondent. On March 30, 1934, the Union called
a strike in an effort to obtain a closed-shop agreement with the re-
4 Wittenberg testified at the hearing that the purchases of raw materials and'the- gross
sales were substantially;the same for the year 1938 as during the year 1937..
Now Congress of Industrial Organizations.
MISSION HOSIERY MILLS 929
spondent. The strike lasted approximately 3 months and the Union
was unsuccessful in enforcing its demands. The respondent's presi-
dent, Wittenberg, has always maintained that before he would operate
under a closed-shop agreement, he would "throw the keys away and
close" his place of business. As a result of the unsuccessful strike, the
effectiveness of the Union was greatly diminished and the members
dropped out of the Union. By 1935 the Union no longer amounted to
a force in the labor relations in the respondent's plant.
During the summer of 1936, one Reeves, a former employee of the
respondent, commenced reorganizing the Union at the respondent's
plant. Approximately 40 of the respondent's employees signed cards
signifying their desire to join. On July 30,'1936, Clyde Decker, a
union organizer, accompanied by a committee of three employees,
requested a conference with Wittenberg. At the conference the com-
mittee claimed to represent 75 per cent of the employees and made
certain requests pertaining to an increase in the rate of pay and the
number of hours of work per day. Wittenberg demanded of Decker
that he divulge the names of the employees that belonged to the Union.
Decker refused to disclose this information. Wittenberg then forced
Decker to withdraw from the conference and the committee was in-
formed that business did not warrant a wage increase. This conference
occurred in the morning. That afternoon Wittenberg called a meeting
of all the employees at the plant at which he discussed the morning
conference. Wittenberg claimed that the committee had threatened
to call a strike on the following day unless their. demands were
granted." He then asked "the people that are satisfied here with the
work you are getting without striking, step forward." A majority
of the employees present did so. Wittenberg then asked those who
were not satisfied to raise their hands. At first no one answered and
Wittenberg, apparently referring to Decker's claim of a majority,
said, "When a man comes in out of a blue sky and makes that kind of
a statement, unless you are just a bunch of hypocrites, he doesn't make
that kind of a statement, and the least that you can do is to be honest."
About 13 employees raised their hands. Wittenberg then said, "We
are going to discharge this meeting now. If you fellows are not
satisfied with the way I run this plant, get your tool boxes and get
out of it." After this meeting there was a cessation of union activity
until July 1937.
Some of the events described above occurred before the effective
date of the Act, and others were not alleged in the complaint, since
the allegations of the complaint were limited to events occurring in
the calendar year 1937 and subsequent thereto. Therefore we make
9 No strike was mentioned at the conference.
930 DECISIONS( OF NATIONALS LABOR RELATIONS BOARD
no findings.of unfair labor practices as to these events, but they may
be properly considered as tending to explain the respondent's sub-
sequent conduct.
. During July 1937, Ray Johnson, a discharged employee, commenced
soliciting members for the Union and several employees signed union
application cards. The respondent's superintendent, Homer David,
and other supervisors soon learned of the revived union activity.
Shortly thereafter, on August 2, 1937, a meeting of all employees was
called. There is a conflict in the testimony as to who actually called
the meeting. The respondent denies that it was called by Wittenberg.
However, it is significant that some of respondent's own witnesses
believed that the meeting was called by Wittenberg. The evidence is
clear and undisputed that Mittman, a foreman, advised employees. to
attend, and that the meeting was largely conducted by Wittenberg,
David, and Mittman. Wittenberg addressed the meeting and gave
as the ostensible purpose of the meeting that certain employees were
trying to get David discharged. Mittman then called Harry Bell,_ an
employee,-up before the crowd and accused him of calling'-David 'ca
"son-of-a-bitch." Mittman then told the crowd, "Harry Bell is the
ring leader of the trouble-makers in here and I don't think much of
you boys who want to work with a fellow like that." A heated argu-
ment then developed between Bell and David, which resulted in Bell
being discharged then and there. After Bell left the meeting, David
called nine of the union members forward and told them that he had
their union cards. One of these union members testified, "Mr. David
called us up in a bunch. Some of the boys who were afraid of getting
fired if they [the management] found out that they were in the Union
denied they had signed application cards, and Mr. David said, 'I know
you did sign it because we have compared your handwriting with the
signatures.' " David then told the group, "All of you can go back to
work now, but if anything happens in any way out of line, you will
be discharged."
One of the respondent's witnesses testified that David did not see
the union cards until some 3 weeks after the meeting of August 2,
1937. In view of the overwhelming weight of testimony from em-
ployees present at the meeting in regard to David's assertions that he
had 'compared the signatures on the cards with the office records, it
is apparent that David saw the cards before the meeting.. It is-equally
apparent that the discharge of Bell, an active union member, and the
public warning given the remaining union members, were designed to
impress the balance of the employees with the respondent's hostility
T See Jeffc)Y-De Witt Insulator Co. and Local No. 455, United Brick and Clay Workers of
America, 1 N. L. R. B. 618, order enforced in 91 F. (2d) 134 (C. C. A. 4th), certiorari denied,
302 U. S. 731; National Labor Relations Board V. Pennsylvania Greyhound Lines, Inc.,
303 U. S. 261.
MISSION HOSIERY MILLS 931
to the Union. So open and flagrant an indication of hostility toward
the Union on the part of representatives of the management, in the
presence of Wittenberg, necessarily exercised a coercive influence upon
the employees present.
Homer David was discharged by the respondent after charges were
filed under the Act and prior to the hearing. Wittenberg testified in
regard to David's discharge that, "David was responsible for creating
all the trouble . . . he was . . . discharged because of these
activities and causing the company all this trouble." David did not
testify.
The effect of the meeting upon the employees is clearly shown by
the testimony of the 'union organizer, who testified, "It stopped the
organizational activities dead."
We find that by the above-described acts the respondent interfered
with, restrained, and coerced its employees in their exercise of the
right to self-organization, to form, join, or assist a labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining and other mutual aid or protection, as guaran-
teed in Section 7 of the Act.
B. The discharges
Harry Bell. The complaint alleges, and the Trial Examiner
found, that Bell was discharged because of his union activities. The
respondent contends that Bell was discharged for ' insubordination
and because he called David an opprobrious name.
Bell started to work for the respondent as a knitter in July 1934,
and his weekly earnings were approximately $35. Thereafter Bell
received successive promotions until shortly before his discharge his
weekly earnings were between $50 and $60. Bell was admittedly one
of the best knitters employed by the respondent. He joined the
Union on July 20, 1937, and became very active ;n soliciting members
for the Union and in distributing union literature. On August 2,
1937, Bell was publicly discharged at the meeting of the employees,
described above. On August 5, 1937, Bell talked to David about
reconsidering his discharge. David admitted that Bell was a good
knitter but said that he could. not put Bell back on. David said,
"You ought to be more careful as to what you sign your name to."
When asked by Bell what he meant, David said, "You signed one
of those union cards, didn't you?"
Approximately 3 weeks before the meeting on August 2, 1937, Bell
and Maylan Lowder, a fellow employee, were discussing the prices
that they received for their work and Bell allegedly remarked, "If
it weren't for that son-of-a-bitch Homer David, we,would be getting
932 DECISIONS; OF NATIONAL LABOR RELATIONS BOARD
more than we are getting ." There was no other person present at
the time the alleged remark was made. Shortly thereafter Mittman
and David talked to Lowder, and , as Lowder testified , gave him the
"third degree" until he "squealed" about Bell's remark . Apparently
nothing was said or done about the matter by either Mittman or
David until the meeting held on August 2. It does not appear that
either Mittman or David made any attempt to question Bell about
his alleged remark prior to the meeting . At the meeting Mittman
called Bell and Lowder up before the group and accused Bell of
making the alleged remark . Mittman then said, "Harry Bell is the
ringleader of the trouble -makers in here and I don't think much of
you boys who want to work with a fellow like that." A heated
argument developed and Bell accused David of using "stool-pigeons"
(evidently referring to Lowder ) who made "a big long story out of
nothing." Wittenberg denied this and Bell replied, "I don't know
that you do, but I know that David does, and I can prove it."
Whereupon , as Bell testified , "Mr. David blowed up and said, `You
are fired right now."' Bell then left the meeting.
There is some conflict in the testimony as to whether or not Bell
denied the remark at the meeting. Bell testified at the hearing that
he had denied it at the meeting and he further denied ever having
made the alleged remark. We do not believe that it is necessary to
resolve this conflict in the testimony in view of the circumstances
surrounding the meeting . The alleged remark, if made at all, was
made in a private conversation about 3 weeks before the meeting.
Apparently cursing is not uncommon around the plant. Neither
Mittman nor David made any attempt to reprimand or punish Bell
until sometime afterwards .. It was finally seized upon at the meeting
of August 2, which had obviously been called to combat the union
activities of the employees . We are convinced , and find, that Bell's
discharge.was planned in advance and designed to feature the dem-
onstration of anti-union sentiment by the respondent . We find that
the alleged remark was a mere pretext for his lischarge.
At the time of his discharge Bell was earning between $50 and $60
per week.
Lester B. Rout& The complaint alleges, and the Trial Examiner
found , that Routh was discharged on August 24, 1937 , solely on ac-
count of his union membership and activities . The respondent con-
tends that Routh was discharged because he failed to oil the needles
on his machine after being warned to do so.
Routh started to work for the respondent in April 1934 , and his
earnings were approximately $40 per week . Thereafter he received
successive promotions until at the time of his discharge he was earn-
ing $633 per week. Routh joined the Union on August 13, 1936, and
MISSION HOSIERY MILLS 933
became very active in its affairs. That the respondent was aware
of Routh's membership in the Union is evidenced by the fact that
he was one of the group of union members called before the meeting
held on August 2, 1937, and warned to "watch their step." On
August 24, Routh was approximately 11/2 hours late to work and
when he reported to the plant he found that the rest of the crew on
his machine had been told to go home by Mittman. Mittman ad-
vised Routh to, take the rest of the day off. Since the knitters are
paid on as piece-work basis this resulted in no material loss to the
respondent. Nothing was said about discharging Routh and he re-
mained around the plant fixing an appliance on his automobile.
While so engaged Mittman told hint that David wanted to see him.
He went to David's office and Routh testified to the following con-
versation: "We sat there for a minute, then he (David) said, `Routh,
I don't guess I will have any more work for you,' and I said, `What
is wrong?' and he said, `I couldn't ask for any more production or
better work than you have given,' and I asked what it was then, and
he said they wanted satisfied employees there, and I said, `What
gave you the idea I wasn't satisfied?' He said, `You signed a union
card, didn't you?"' This version of the conversation was not con-
tradicted, and we accept it as true.
The respondent's contention that Routh was discharged because he
failed to oil the needles after being previously warned, does not. bear
analysis. -The only time that it appears front the record that Routh
failed to oil the needles occurred at least 2 weeks before his dis-
charge. It was apparently the duty of the night shift to oil the
needles and it is uncontradicted that at the time of his discharge
Routh was working on the day shift. It should be noted that Routh
was not informed of his alleged failure to oil the needles at the time
of his discharge. At the hearing Mittman was asked the question
"Had the needles been oiled the previous shift?" and Mittman re-
plied, "I don't remember."
While Routh's lateness on the morning of August 24 was repre-
hensible, it appears that it was the first time that it had occurred
and the respondent did not at that time appear to attach any im-
portance to it. It was not the cause of his discharge. We find that
the reason for Routh's discharge was his union membership and
activity.
Since his discharge Routh has earned approximately $600.
Oris Clinedinst.$ Clinedinst entered the respondent's employ in
April or May 1934, as a knitter, and his initial pay averaged $30 per
Incorrectly spelled "Klinedinst" in the charge and complaint. This was corrected by
motion at the bearing.
934 DECISIONS' OF NATIONAL. LABOR RELATIONS BOARD
week. He was frequently complimented by David for his work a.nd
at the time of his discharge on September 1, 1937, his earnings had
increased to approximately $50 per week. Clinedinst joined the
Union in the summer of 1936, and was very active in behalf of the-
Union. He was a member of the negotiating committee that con-
ferred with Wittenberg and he was one of the union members who.
were ''segregated at the meeting which followed, the conference.-
Clinedinst was also one of the union ' members called forward by
David at the meeting on August 2, 1937, and warned to "watch.
their step." -
On August 30, 1937, Wittenberg called a meeting of the union
members in his office, the purpose of which Wittenberg alleged was:
"to get your side of the story. I don't want you changing your-
stories any." Wittenberg then asked them, "Do you think that I
have ever discriminated against the Union or done anything against-
it?" Kinney, one of the employees present, answered, "I. think you:
have on several occasions." Clinedinst testified, "I told 'hire' (Wit--
tenberg), `I certainly thought he had, because every time any union:
activities went on around there, he called a meeting,' and that,
seemed to make him very angry and lie stood up and said, `Any time..
I can't call a meeting in my own place of business, I will throw the-.
key away."' Two days after this meeting, Mittman provoked an.
argument with Clinedinst, stopped the machine on which Clinedinst
was working, and ordered him to report to David. David told him:
to'go home until he had had time to investigate the matter. That:
afternoon a meeting was held in Wittenberg's office. David, Mitt-,
man, Wittenberg, Clinedinst; and a representative of the Board were-
among those present. A heated argument developed 'in the course of"
which Clinedinst and Mittman called each other "liars." Wittenberg-
thereupon called Clinedinst a "liar," and said, "Well, you' haven't,
been,fired up until now, but now you are fired."
The respondent contends in its answer that Clinedinst was not dis-
charged but that . he left of his own accord. At the hearing ' the.
respondent's contention was that Clinedinst "dared Mittman to fire,
him" and that he was discharged for calling' Mittman a "liar." In
its exceptions to the Intermediate Report, the respondent contends:
that Clinedinst was discharged for inefficiency and untruthfulness.
The Trial Examiner found that Clinedinst was discharged solely
for his union activity as. alleged in the complaint, and not because
of what may-have been his unfortunate choice of expression. It is
manifest from a consideration of the evidence that Clinedinst's' dis-
charge 2 days after the August 30 meeting was the result of a deliber-
ate-scheme and that Mittman's provocative actions were designed to
induce Clinedinst to commit some overt act sufficient to provide a.
plausible pretext for his discharge.. We find that Clinedinst was dis--
MISSION HOSIERY MILLS 935
charged because of his union membership and activity rather than
for the reasons given by the respondent.
Thomas E. Kinney.9 The complaint alleges that the respondent
discharged Kinney on September 14, 1937, solely because of his union
activity, and that on February 14, 1938, the respondent reinstated
Kinney not to his former position but instead demoted him, solely
because.of his union activity. The supplemental complaint alleged
that the respondent discharged Kiiiney '̂on May 27, 1938, solely because
he had filed charges under the Act. The respondent contends in its
answer to the complaint and supplemental complaint that Kinney
damaged some hosiery, that he refused to pay the damages assessed,
and that he voluntarily quit his job. The respondent further con-
tends that Kinney was only laid off temporarily on May 27, 1937,
"pending the trial of the cause" and that Kinney would be reinstated
at the conclusion thereof. The Trial Examiner found that Kinney
had been discriminated against in May because he filed charges under
the Act 'and that he had not -previously - been discriminated against
because of-his union activity.
Kinney started to work for the respondent in July 1934, as a knitter,,
And his initial weekly earnings were approximately $30 per week. At
the time of his discharge his weekly earnings had increased to approx-
imately $45 per week. Kinney joined the Union in 1934 but dropped
his membership therein after about 8 months. He rejoined the Union
in July' 1937.
Thereafter, on August 30, 1937, Wittenberg called the known union
members to the meeting in his office hereinbefore referred to. It was,
at this meeting that Kinney assumed leadership and' expressed the
union objections. On September 14, 1937, Kinney was discharged for
the alleged reason that he had damaged 7 dozen pairs of hosiery and
had refused to pay for them.
The evidence is undisputed that 7 dozen pairs of hosiery had been
negligently knitted with "mixed silk." A meeting `vas held in Wit-
tenberg's office and he contended that Kinney was responsible for the
damage and demanded that Kinney pay the cost price of the hosiery..
Kinney denied responsibility, refused to pay for the damage and was
thereupon discharged. It is clear that Kinney was responsible for
the damage; several other employees were present at this meeting and
at least one of them advised Kinney to pay for the damage.10 There
8'Sometimes referred to as "Emmet C. Kinney" in the pleadings. This was corrected by
motion at the hearing.
10 A memorandum of the proceedings was submitted in evidence by the respondent. How-
ever, the stenographer who prepared the memorandum admitted at the hearing that it did
not purport to be a complete record and that it merely represented "the gist of the conver-
sations." Furthermore, the memorandum is itself unintelligible. Accordingly we shall
disregard the memorandum as having no probative value tending to prove or disprove the
statements.
247383-40-vol. 16-80
936 DECISIONS) OF N'N A'r16 Aj, LABOR RELATIO' S BOARD
is some indication in the record that other kiiittei • s had "remixed silk"
and had not been required to.pay for the dannage resulting therefrom,
but in no instance did the quantity so damage) approach the quantity
damaged by Kinney. The record clearly indicates that Kinney would
not have been discharged had he agreed to pay for the damaged
hosiery.
Under all the circumstances , we find that the respondent (lid not
discharge Thomas E. Kinney on September 14, 1937, because of his
union activities.
.
On February 14, 1938, Kinney Was reemployed by the respondent.
On May 27 , 1938, after the respondent was served with the Board's
complaint in this proceeding , Kinney received the following letter :
May 27, 1938
(Mr. Emmett Kinney.)
DEAR MR . KINNEY :
As the Mission Hosiery Mills is cited for trial for June 6, 1938,
we feel it is the proper procedure to lay you off until such time
as the trial is over, so that there will be no prejudice or collusion
from the Mission Hosiery Mills. As you have preferred charges,
it is only consistent that we abide by the decision.
MISSION HOSIERY MILLS,
A. H. WITTENBERG, INC.,
[S] A. H. WITTENBERG.
This action of the respondent was a patent and flagrant violation
of the protection afforded by the. Act to employees who file charges or
give testimony under the Act. At the hearing the respondent stated'
that the "lay-off" was only for the duration of the hearing and that
at its conclusion Kinney would be reinstated. In its exceptions to the
Intermediate Report, the respondent asserts that Kinney was in fact
reinstated following the hearing.". It is no defense to a charge of dis-
crimination to assert that the employee was discriminated against only
for a short time; the lay-off was in and of itself an unfair labor
practice regardless of the respondent's expressed intent to rectify it at
the conclusion of the hearing. If the respondent did in fact reinstate
Kinney after the, hearing, that fact will be relevant in computing the
back pay due to him under our order.
We find that the respondent has discriminated against Thomas E.
Kinney because he filed charges.under the Act.;,
E. D. Vickery. The complaint" alleges that'Vickery. 'was demoted
on November 1, 1937, solely because of his union activities. The
supplemental complaint alleged that Vickery was discharged on May
27, 1938, solely because he filed charges under the Act. The respond
ent contends in its answer that Vickery was demoted because of a
MISSION HOSIERY MILLS 937
general curtailment of work while certain machines were being re-
paired.11 The Trial Examiner found that Vickery had been discrim-
inated against in May because lie filed charges under the Act, and
that he had not been, previously discriminated against because of his
union activity.
Vickery was .employed by the respondent in May 1934, as a knitter,
and his weekly earnings amounted to approximately $30. He joined
the Union in July 1936, and was a member of the negotiating com-
mittee that met with Wittenberg. Vickery was among the union
members segregated at the meeting that followed the conference with
the committee. After this meeting Vickery was advised by Simms,
a foreman, to get rid of his union card or be liable to discharge.
Vickery thereupon gave his union card to Simms. Two weeks after
giving his card to Simms, David told Vickery, "I am glad to see
that you are playing ball with us and not having anything more to
do with the Union." Shortly thereafter Vickery received a promo-
tion which increased his earnings approximately $10 per week.
In July 1937, Vickery rejoined the Union. On August 2, 193'7, he
was among the group of union members called forward at the meet-
ing and warned to "watch their step." On October 2, 1937, Vickery
was laid off for a week because of a dispute with Mittman. He re-
turned to work, and on November 1, 1937, he was demoted to another
machine with a resulting decrease in his earnings of approximately
$10 per week. Vickery thereupon complained to the Regional Direc-
tor about the alleged discrimination.
The record sustains the respondent's contention that Vickery's de-
motion was caused by a general demotion which resulted from the
repair of certain machines. It further appears that employees with
greater seniority than Vickery also received similar demotions. Ac-
cordingly, we find that respondent did not discriminate against E.
D. Vickery, on November 1, 1937, because of his union membership
or activities.
On May 27, 1938, Vickery received a letter from the respondent
identical to that received by Thomas E. Kinney and hereinabove
set out. For the reasons there given we find that the respondent has
discriminated against E. D. Vickery because he filed charges under
the Act.
Charles E. 'Wickham. The complaint alleges that Wickham was
discharged on October 25, 1937, and reinstated on February 24, 1938,
to an inferior position, solely on account of his union activities.
The supplemental complaint alleged that Wickham was discharged
ss In its answer the respondent denied any knowledge of Vickery 's union membership.
However, at the hearing Wittenberg admitted such knowledge and the answer was amended
accordingly.
938 DECISIONSI OF NATIONAL LABOR RELATIONS BOARD
on May 20, 1938, solely on account of his union activity and affilia-
tion. The respondent contends in its answer, and the Trial Examiner
found, that Wickham was discharged as a result of a curtailment of
operations and not because of his union activity.
Wickham started to work for the respondent in July 1934. The
amount of his initial weekly earnings does not appear in the record.
He received several promotions and during 1937 he was earning ap-
proximately. $54 per..week.. In March 1936 Wickham joined the
Union and became fairly active in its behalf. Wickham allowed his
union membership to lapse after the meeting in July 1936, at which
the union members were segregated. On July 28, 1937, Wickham
rejoined the Union and he was among the union members singled
out at the meeting on August 2, 1937, and warned to "watch their
step." On October 21, 1937, Wickham voluntarily took a 30-day
vacation rather than accept a demotion resulting from the repair of
certain machines. At the end of his vacation Wickham applied for
work and was told that there was nothing available. On, February
24, 1938, Wickham was notified that there was a job available and
he was put.to work on an inferior machine. which resulted in a de-
crease of approximately $30 in his weekly earnings. He continued
to work on this machine until May 14, 1938, on which (late he was
informed that there was no more work there. Several other em-
ployees were laid off at about the same time. The record substaii-
tiates the respondent's contention that Wickham was laid off because
of a general curtailment of operations.
We find that the respondent has not discriminated against Charles
E. Wickham because of his union activities.
Bert Swoyer. The complaint alleges that the respondent discharged
Swoyer on October 25, 1937, that the respondent reinstated him to
an inferior position on February 24 and that on May 13, 1938, Swoyer
was laid off, all because of his union activities. The respondent con-
tends in its answer, and the Trial Examiner found, that Swoyer quit
his job voluntarily on October 25, 1937, and that his lay-off on May
13, 1938, was necessitated by a curtailment of operations.
Swoyer, started to work for the respondent in September 1926.
From 1926 until his final lay-off in May 1938, he voluntarily severed
his connections with " the respondent on at least four different oc-
casions. Swoyer was apparently a good knitter as his -pay at one
time averaged about $100 per week. -On July .30, 1930, Swoyer ac-
cepted a commission from the respondent to go East to.secure strike-
breakers. Swoyer testified that during the strike - in 1934, he acted
as a labor spy for the respondent and reported information concern-
ing the Union to the brother- of Wittenberg, who in-turn transmitted
it to Wittenberg. 'Swoyer testified that he'had been a' member"of fhe
Union continuously since 1936. In October 1937, during the curtail-
MISSION HOSIERY MILLS 939
ment of work, Swoyer was assigned to a different machine from that
which he was working on. He refused the new assignment and vol-
untarily quit the respondent's employ. It was not established that
this change in assignment was a discrimination against Swoyer. At
the hearing he testified "I quit of my own accord."
Swoyer was again employed by the respondent in February 1938
and worked until May 13, 1938, at which date he was laid off. Swoyer
claimed that he had 'greater seniority"than' some of the employees
retained. However, it appears that Swoyer had forfeited his sen-
iority rights by his frequent voluntary terminations of employment.
The evidence substantiates the respondent's contention that his lay-off
was necessitated by a general curtailment in operations.
We find that the respondent has not discriminated against Bert
Swoyer because of his union activities.
We find that the respondent discriminated in regard to the hire and
tenure and terms and conditions of employment of Harry Bell, Lester
B. Routh, and Oris Clinedinst, thereby discouraging membership in
a labor organization, .and interfering-with, ;restrainifg, and.coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act. We also find that the respondent discriminated against
Thomas E. Kinney and E. D. Vickery because they filed charges under
the Act, and thereby interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMMERCE
We find that the activities of the respondent set forth in Section III .
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several. States, and
tend to lead to labor disputes' burdening and obstructing commerce
and the free flow of commerce.
THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order the respondent to cease and desist
therefrom and to take certain affirmative action designed to restore
as nearly as possible the condition -which existed prior to the com-
mission of the unfair labor practices.
We have found that the respondent discharged Harry Bell, Lester
B. Routh, and Oris Clinedinst because of their union membership
and activity. Accordingly, we shall order the respondent to offer
each of these employees immediate and full reinstatement to his
former, or substantially equivalent position, without prejudice to
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his seniority and other rights and privileges,, and to make : them
whole for any loss of pay they have suffered by reason of the respond-
ent's discrimination against them by payment to each of them of a
sum of money equal to the amount which he normally would have
earned as wages from the date of his discharge to the date of the
offer of reinstatement, less his net earnings 12 during said period.
We have found that Thomas E. Kinney and E. D. Vickery were
discriminated against on May 27, 1938, because they filed charges.
under the Act. In its exceptions to the Intermediate Report, the
respondent asserts that they were reinstated following the hearing.
While we do not imply that this assertion is false, it is not in the
nature of evidence from which we could make a finding that the men
have been reinstated. Accordingly, we shall order the respondent
to offer Thomas E. Kinney and E. D. Vickery immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges,
and to snake them whole for any loss of pay.they have suffered. by
reason of the respondent's discrimination against them by payment
to each of them of a sum of money equal to the amount which he nor-'
mally would have earned as wages from May 27,;1938, to the date
of the offer of reinstatement, less his net earnings during said period:
If Kinney and Vickery have been reinstated, our order of reinstate-,
ment will already have been complied with.
We have found that the respondent has not discriminated against
Charles E. Wickham and Bert Swoyer. Accordingly, we shall dis-
miss the original complaint and the supplemental complaint in
regard to them. The allegations of the original complaint will be
• dismissed as to Thomas E. Kinney and E. D. Vickery.
Upon the basis of the foregoing findings of fact and upon the entire
record in this case, the Board makes the following :
CONCLUSIONS OF LAW
1. Textile Workers Organizing Committee, Local No. 99, and
American Federation of Hosiery Workers, Local No. 43, are labor
organizations, within the meaning of Section 2 (5) of the Act.
12 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 end'Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N . L. R. B. 440 . Monies received
for work performed upon Federal , State, county , municipal, or other work -relief projects
are not considered as earnings , but as provided below in the Order, shall be ' deducted from
the sum due the employee , and the amount thereof shall be paid over to the appropriate
fiscal agency of the Federal , State, county, municipal , or other government or governments
which supplied the funds for said work -relief projects. '
MISSION HOSIERY MILLS 941
2. By interfering with, restraining, and coercing its employees in
the exercise of their right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining and other mutual aid and pro-
tection, as guaranteed in Section 7 of the Act, the respondent has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (1) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Harry Bell, Lester B. Routh, and Oris Clinedinst, and each
of them, thereby discouraging membership in a labor organization,
the respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (3) of the Act.
4. By laying off Thomas E. Kinney and E. D. Vickery because
they had filed charges under the Act, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of
Section 8 (4) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
6. The respondent has not discriminated in regard to the hire or
tenure of employment or any term or condition of employment of
Charles E. Wickham or Bert Swoyer, within the meaning of Section
8 (3) of the Act.
7. The respondent has not discriminated in regard to the hire or
tenure of employment or any term or condition of employment of
Thomas E. Kinney or E. D. Vickery as alleged in the original com-
plaint, within the meaning of Section 8 (3) of the Act.
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
respondent, Mission Hosiery Mills-A. H. Wittenberg, Inc., Los
Angeles, California, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Textile Workers Organizing
Committee, Local No. 99, or any other labor organization of its em-
ployees, by discharging, laying off, or refusing to reinstate any of its
employees, or in any other manner discriminating in regard to their
hire or tenure of employment or any term or condition of their
employment ;
942 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
(b) Discriminating against any employee because he has filed
charges under the Act;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed lin Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Harry Bell, Lester B. Routh, Oris Clinedinst, Thomas
E. Kinney, and E. D. Vickery immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges;
(b) Make whole Harry Bell, Lester B. Routh, Oris Clinedinst,
Thomas E. Kinney, and E. D. Vickery for any loss of pay they
have suffered by reason of the discrimination against them, by pay-
ments to, each of,them. of. a ,sum, oft money equal ..,to ,that. which each.
would normally have earned as wages during the period from the
date of his discharge or lay-off to the date of the offer of reinstate-
ment, less his net earnings during said period, deducting, however,
from the amount otherwise due to each of said employees, monies
received by said employee during said period for work performed
upon Federal, State, county, municipal, or other work-relief pro-
jects; and pay over the amount so deducted to the appropriate fiscal
agency of the Federal, State, county, municipal, or other government
or governments which supplied the funds for said work-relief
projects;
(c) Immediately post notices in conspicuous places throughout its
plant and maintain such notices for a period of at least sixty (60)
consecutive days, stating that the respondent will cease and desist
in the manner set forth in 1 (a), (b), and (c), and that' it='will':take,
the affirmative action set forth in 2 (a) and (b) of this Order;
(d) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of this Order, what
steps the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the original complaint, in so far
as. it alleges that the respondent has discriminated in regard to the
hire or tenure of employment or any term or condition of employment
of Thomas E. Kinney, E. D. Vickery, Charles E. Wickham, and
Bert Swoyer, and the supplemental complaint in regard to Charles
E. Wickham, be, and they hereby are, dismissed.