Berkshire Knitting Mills

National Labor Relations Board - Board Decisions

Jan 12, 1943

46 N.L.R.B. 955 (N.L.R.B. 1943)

61
In 1110 Matter of BERKSHIRE KNITTING MI LI rnd AMERICAN FEDERATION
"OF'-'HOSIERY WORKERS, , BRANCH # 10
Case No. C-386.-Decided January 12, 1913
Jurisdiction : hosiery manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: discrediting union by forcing employees to
repudiate article appearing in union publication ; surveillance of union meetings ;
refusal to meet with committee of minority union because it included non-
employee ; effort to destroy minority union by refusal to negotiate with it or to
accept mediation during strike; warning strikers that they would not be
permitted to return to work ; threatening to remove operations from vicinity-
strike found. to have been caused and prolonged by unfair labor practices
despite fact that purpose of strike was economic, when unfair labor practices
required resort to strike rather than continued- reliance on organization and
negotiation'
Company-Dominated Union: employees' association formed prior to the Act and
continued thereafter with respondent's support-support by : permitting use
of company premises for meeting place, office, and storage place, while refusing
similar privileges to "outside" union ; solicitation in plant, particularly in
department. through which apprentices were promoted ; and distribution of
association leaflets in plant and during working hours without pay deduction-
indicia : absence of dues ; low attendance at meetings, indicating lack of interest
among large paper membership ; support of interests of employer even when
conflicting with interests of employees ; lack of protest at departure from
prevailing economic standards; respondent's control over officers of association
by provision that membership should terminate upon discharge.
Discrimination: discharge of one employee because of participation in union
meeting; discharge of two employees for taking up a collection for striking
employee, although collections for other employees were permitted ; refusal to
reinstate unfair labor practice strikers; charges of refusal to reinstate other
employees dismissed because of absence of evidence that they applied for
reinstatement -
Remedial Orders : cease and desist unfair labor practices; dominated organiza-
tion, disestablished ; contract with dominated organization, abrogated ;
employees discriminated against ordered reinstated with back pay; striking
employees who had applied for reinstatement ordered reinstated with back
pay from date of application; striking employees who had not applied for rein-
statement ordered reinstated upon application with back pay from (late of
refusal to reinstate-circumstances affecting order of reinstatement and back
pay: certain strikers' disqualified from reinstatement by reason of the severe
nature of their misconduct; strikers) failure to comply with absence clause in
individual contracts of employment, found not to bar their reinstatement; lapse
of time between institution of proceedings and issuance of order held no ground
46N:L.R'-B,No.111 '
955
956 DECISIONS OF NATIONAL LABOR RELA'T'IONS BOARD
fdr abating amount of back pay ; failure of complainteto name -striking employees
held no bar to order requiring reinstatement with back pay.
Practice and Procedure :, allegation in answer to complaint that charge was not
filed in good faith found not to raise material issue
Mr. Samuel G. Zack, Mr. Bernard Bralove, and Mr. Robert H.
Kleeb, for the Board.
Mr. Wellington H. Bertolet and Mr. Frederick J. , Bertolet,, of
Reading, Pa., and Mr. Joseph W: Henderson, of -Philadelphia, Pa.,
for the respondent.
Mr. Isadore Katz, of Philadelphia, Pa., for Branch 10.
Mr. William M. Rutter and Mr. George Eves, of Reading, Pa., for
the Association.
Mr. Joseph, B. Robison, of counsel to the Board. -
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by'American Fed-
eration of Hosiery, Workers, Branch #10, herein called Branch 10,,
the National Labor Relations Board,,herein called the,Board, by the
Regional Director for the Fourth Region (Philadelphia, Pennsylva-
nia), issued its complaint, dated November 6, 1937, against Berkshire
Knitting Mills, Reading, Pennsylvania, herein-called the respondent,
alleging that the respondent had engaged in and was engaging in'
unfair labor practices affecting coimnerce, within the meaning of See-
tion.8,(1), (2), and (3) and, Section.2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the- complaint, accompanied by notice of hearing, were duly served
upon the respondent, Branch 10, and Berkshire Employees Associa-
tion; Inc.; of the Berkshire Knitting Mills, herein called the Associa-
tion, a,labor organization which the: complaint alleged the respondent
interfered with, supported, and dominated.
In- respect to the unfair labor practices, the complaint alleged,
in substance,, (1) that in September 1933, the respondent caused 'they
Association, a labor organization, to be organized, and that since
July 5, 1935, the respondent dominated and interfered with the
administration of the Association and contributed support to it; (2)
that the respondent, by various acts and conduct, discouraged its
employees from affiliating with Branch 10; (3) that the respondent,
by discharging Eugene Moyer on or' about September 28, 1936, Frank
Enck on or about December 31, 1936, and Ernest Epting on or about
December 29, 1936, and refusing-to reinstate the said 3 employees,
BERKSHIRE KNITTING' MILLS . 957
discriminated in regard to, their hire and tenure of employment to
discourage membership in-Branch 10; (4) that as a result of the acts
described above,'many of the employees of the respondent went out
on strike,inSeptelilber.1936, which strike continued and was a current
labor dispute up to the date of the complaint; (5) that the respondent
discriminated in regard to the hire and tenure of employment of
303 striking employees to discourage membership in .Branch 10, by
refusing to reinstate them because,of their affiliation with Branch 10,
and because they engaged in other concerted activities with other
employees for the purpose of collective bargaining ; and (6 ) that the
respondent, by all the above acts and other acts and conduct , inter-
fered with, restrained, and coerced its employees in the, exercise of
'the rights guaranteed ,in Section 7 of the Act.
On November 13, 1937, the respondent filed a written motion, to
continue the hearing to a date subsequent to December 15. The
motion was denied by the Regional Director. i The respondent filed
an answer , dated November 24, 1937, in which it admitted certain
allegations of the complaint concerning the nature of its business,
but denied that it was engaged in interstate commerce, and denied,
or averred lack'of knowledge' of, each'of the allegations of the com-,
plaint concerning, unfair labor practices, except that it admitted the
termination of the employment of the three men alleged in the com-
plaint to have been discriminatorily discharged, and stated af1"irm-
atively that they were discharged or laid off for lawful reasons.
The answer alleged affirmatively that the charges filed by Branch 10
were not made in good faith,,bui merely for the purpose of annoying
and liarrassing the respondent; which fact was known or could have
been known to the Board by investigation prior to the issuance of
the complaint.
The, respondent also filed with the Regional Director- an applica-
tion, dated' November 29, 1937, for the issuance of a subpoena direct-
ing the appearance of Luther D. Adams, president of Branch 10, at
the hearing, and the production of certain documentary evidence.'
,The-application specified that the evidence sought was "essential to
the defense of, Berkshire Knitting Mills, respondent, to the said
complaint,." The application vas' denied, by order of the Board, on
November 30, 1937. -
The documentary ei tdence requested was itemized as follows -
1. Roll of members of American Federation of Hosiery Workers, Branch #10, who
were employees of Berkshire Knitting Mills on September 23, 1936, and a roll of said
members who are now so employ ed
2. Copies of all letters , pamphlets, circulars , advertisements , and statements issued
and/or . caused to be madq and . issued relating to or pertaining to the strike alleged to
have been declared against Berkshire Knitting Mills by the American Federation of
Hosiery workers, Branch # 10, on onaboui September 1936
3. An itemized list of expenses incurred and all payments made in connection with
or pertaining to s.ud alleged strike from September 28. 1936 to date
958 DECISIONS OF NATIONAL LABOR _ RELATIONS- BOARD
Pursuant to the notice, a hearing was held in Reading, Pennsyl-
vania, from Novembar 29, 1937, to February _1, 1938, before .Leo J.
Kriz, the Trial Examiner duly designated by the Board. The Board,
the respondent, and Branch 10 were represented by counsel. On
December 2, the fourth day of the hearing, counsel for the Associa-
tion moved to intervene in the proceeding. The motion was granted,
participation being limited to the extent that the proceeding,, per-
tained to the Association. Thereafter the Association was represented
at'thefhearing.2 With the limitation; noted above as to the Associa-
tion, full opportunity to be heard, to examine, and 'cross-examine
witnesses, and to introduce, evidence bearing upon the issues was
afforded all parties. At the commencement of the hearing, the
respondent made a motion to dismiss the complaint, and it renewed
the motion at the close of the Board's case and at the end of the
hearing. The Association, at the close of the Board's case and at
the end of the hearing,moved to dismiss those portions of the com-
plaint which referred'to it. The Trial examiner 'reserved decision
on these motions until the close of the hearing and denied them at
that time. At the commencement of the hearing; the respondent also
objected to the complaint on the ground that it was not signed ley the
Regional Director. The objection was overruled.3 At the close of
the Board's case, the respondent moved to strike all testimony regard-
ing.events which-occurred prior'to the effective"date_of the Act. The
Trial Examiner reserved decision on the motion. During the presen-
tation of the Board's case, counsel for the Board moved to amend the
complaint by changing the alleged date of the formation of the
Association from September to August 1933; and at the close of the
hearing he made a motion to amend the complaint' to conform to
the evidence. Both motions were granted.
At the end of the hearing; all parties were given opportunity for
oral argument, and were granted'permission to file briefs within 10
days. The Trial Examiner allowed the parties 5 days in which to
apply to the Board for oral argument before it. - -
On February-2, 1938, the Board, acting pursuant to Article II,
Section 37, of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended, ordered that the proceedings be trans-
ferred to and continued before it. ' Pursuant to notice,'oral argument
was had before the Board on March 10, 1938, in. Washington, D.,6.
The respondent and, the Association were represented by counsel and
presented their arguments. Branch 10 did not appear. Prior to the
oral argument the respondent, the Association, and Branch 10 filed
2 On the first 3'days of the hearing counsel for the Association appeared, and participated
as counsel for officers of the Association who had been called as witnesses.
' The Re;ional ° Director 's signature was, affixed to the complaint and notice of hearing, as
a single document. ,
BERKSHIRE KNITTING MILLS 959
briefs with the Board. After the oral argument, in accordance with
permission granted by the Board, the respondent filed a supple-
mental brief in reply to the brief filed by Branch 10.
Subsequently, the respondent filed with the Board a petition, dated
May 4, 1938, praying that the case be remanded to the Trial Ex-
aminer for an Intermediate Report and that further proceedings be
stayed until such report was filed, on the ground that the respondent
was prejudiced and denied due process of law by the omission of
an"Iritefrh6diate Report.
On September 6, 1938, the Board issued an order, copies of
which were served upon all the parties, directing that Proposed
Findings of Fact, Proposed Conclusions of Law, and Proposed Order
be issued, that no Intermediate Report be issued by, the Trial Ex-
aminer, and that the parties have the right, within 10 days from the
,,,receipt of the Proposed Findings, Conclusions of Law, and Order to
file exceptions, to request oral argument, and to request permission
to file briefs with the Board. ( On April 28, 1939, Proposed Findings
of Fact, Proposed Conclusions of Law, and Proposed Order were
issued and duly served upon all the parties. Exceptions thereto were.
filed by the respondent, the Association, and Branch 10, dated, re-
spectively, May 26, May 25, and May 25, 1939.
Pursuant to notice, oral argument on the exceptions was had before
the Board on July 13, 1939, in Washington, D. C. The 'respondent,
the Association, and Branch 10 were represented by counsel and
presented their arguments. Prior to the oral argument, all parties
filed briefs with the Board, and subsequent thereto, the respondent
filed a supplemental brief.
On November 3, 1939, the Board issued a Decision and Order in
which it made certain procedural rulings, sustained the 'complaint
in part and dismissed it in part, and directed the respondent to cease
and desist from the unfair labor practices in which it was found to
have engaged, and to take certain specified affirmative action.4
On November to, 1939, the respondent filed a petition for review of
the Board's Order in the United States Circuit Court of Appeals for
the Third Circuit; thereafter, it filed a petition to adduce additional
evidence, in which it alleged, inter alia, that one of the members of
the Board who participated in the Decision and Order of November
3, 1939, was disqualified by reason of bias. On October '14, 1941, the
Circuit Court entered a resettled order remanding the case to the
Board and directing it to vacate its earlier decision, to hear oral argu-
ment, to reconsider the, case, to make appropriate findings, and to,
enter an appropriate order.5 On October 29, 1941, the Board issued
417N.LRB2,99
5 Berkshire Knitting Mills v. N. L. R. B , October Term, 1940, No. 7254.
960 DECISIONS OF- NATIONA'L`"LABOR RELATIONS BOARD
an Order and Notice; in: which • it set aside the Order 'of- November
30, 1937, denyingt the respondent's- application for a subpena, the
Order of September 6, 1938, directing the issuance of Proposed Find-
ings, and the ;Decision and Order of November 3, 1939. The parties
-were directed to show cause, on or before November 20,:1941, why
the Board should not deny the application made by the respondent on
November 26, 1937, for a subpena duces tecum directed to Luther
D. Adams, and why the Board should ,not direct the issuance of
Proposed Findings of Fact, Copelusions of Law,\and Order.
Thereafter, the Association 'filed objections to the action-proposed
in-the Order and Notice of October 29, 1941, and a, motion that the
Board hear evidence on the question of the alleged bias or; in the
alternative, direct the holding of a new hearing before ,a Trial Ex-
aminer. The respondent filed a motion-to adduce testimony concern;
ing the alleged bias and concerning certain, acts and conduct of various
members of the Board's staff. ^ The respondent also filed,,objecti oils
to the issuance of Proposed Findings and to the denial of its ^applica-
tion for a subpena. Briefs, were filed by the respondent and the
Association. On November 25,.1941, the respondent, the Association,
and Branch 10 appeared by connsel,at oral'argmnent before'the Board
iii Washington, P. C., on the above objections and motions.
On'December 23; 1941, the Board issued its' Decision on Order to
Show Cause and Order,° in which (1) it granted the respondent's ap-
plication for a subpena described above except as' to items 1 and 3 of
the application; 7 (2) it reopened the record for the -purpose of hold-
ing a further hearing for the taking,oF,the testimony of Luther D.
Adams and the introduction of documentary evidence produced pur-
suant to a subpena'duees teeun-t directed to Luther D. Adams, and for
the taking of testimony and documentary evidence in rebuttal to the
above-described testimony and documentary evidence, limiting the
hearing, however, to evidence'relevant to the issue of the cause of the
strike alleged to have been called at the respondent's plant in 1936;
'(3) it referred the proceeding to the -Regional Director for the pur-
pose of conducting the above-described hearing; (4) it directed-that
no Intermediate Report be issued by-a Trial Examiner; (5) it directed
that Proposed Findings of Fact, Proposed Conclusions of La,-,v, and
Proposed. Order -be issued after termination of the above-described
hearing; and (6) it granted the parties the right to file exceptions to
the said Proposed Findings- and a brief in support thereof and to
request oral argument before the Board. , The Board also denied the
motions of the Association and the respondent that further evidence
be adduced, described above, and overruled the objections of. the
'f.37N L R B 626.
7 See footnote 1, above.
BERKSHIRE KNITTING MILLS 961
respondent and the Association to the issuance of Proposed Filidiligs.8'
On the same day, the Board issued to the respondent subpenas ad
testificandum and daces tecum directed to Luther D. Adams.
Thereafter, by application dated December 26, 1941, the respondent
applied for subpenas directed to James. W. Batz and Edward J.
Williams, president and secretary, respectively, of Branch 10 at the
time of the application, calling for the production of the documentary
evidence described in iteni 2 of the application dated November 29,
1937,'and, in addition ; .
such portions of the minutes of American Federation of
Hosiery Workers, Branch #10, as are relevant to the allegation
in the Board's complaint that said strike • [of 1936] was caused
by unfair labor practices on the part of the respondent.
On January 6, 1940, the Board granted the application, at the same
time noting that the latter material,had not been previously requested
in an application for a subpena.
On January ,17, 1942, the respondent filed exceptions to the Board's
Decision on Order to Show Cause and Order.
Pursuant to notice, a hearing was held on January 12, 14, and 15,
1942, at Reading, Pennsylvania, before Mortimer Riemer, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board,
the respondent, Branch 10, and the Association were represented by
counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence as provided in the Board's Order reopening the record was
afforded all parties.° By letter dated February 7, 1942, the Board
denied the respondent's request for an opportunity to present oral
argument before the Board prior to the issuance of Proposed
Findings.
On September 30, 1942, Proposed Findings of Fact, Proposed Con-
clusions of Law, and Proposed Order were issued and duly served on
s The respondent has since renewed its contention that the Board should either hear evi-
dence concerning the alleged bias of a former member of the Board or direct the holding
of a hearing, de novo The reasons for our rejection of this contention are stated in our
Decision on Order to Show Cause (37 N. L 11 B 926) and need not be repeated here
DAt the resumed healing, Federation officials produced all of the minutes of Branch 10
and Berkshire Dn ision for the period in question. The respondent requested that it be
permitted to examine these minutes, or in the alternative, that the Trial Examiner examine
the minutes to determine which portions were relevant to the strike issue. The Trial
Examiner ruled, hcwever, that the Federation officials should select the relevant portions
and that only those portions should be produced This ruling was in accord with the
terms of the subpena duces tecuin, which diiected production of "such portions of the
minutes . . . as are relevant to the . . strike." The respondent's objection to this pro-
cedure is not well taken The subpena was couched in the exact terms used in the respond-
ent's request therefor. Moreover, any other piocedure would have assumed the character
of a fishing expedition. The respondent's further contention that it was prejudiced by
delay in the production of these minutes is entirely without merit' No request for a sub-
pena directing such production was made by the respondent until very late in these pioceed-
ings, at which time it was promptly gi anted.
604086-43-vol. 46-61
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all of the parties. Exceptions thereto and a brief in support thereof
were filed by the respondent. A brief was also filed by Branch 10.
Pursuant to notice, oral argument on'the exceptions was had before
the Board on December 3, 1942, in Washington, D. C. The respondent
and Branch 10 were represented by counsel and presented their
arguments.
The Board has reviewed the rulings of the Trial Examiner at the
first hearing and the rulings of the Regional Director described above.
They are hereby affirmed. The Board has reviewed the rulings^of=the
Trial Examiners at both hearings on other motions and on objections
to the admission of evidence, and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.1° The respondent's
motion to strike all testimony regarding events which occurred prior
to the effective date of the Act, and the respondent's petition, dated
May 4, 1938, that an Intermediate Report be filed, described above, are
hereby denied. The Board has considered the respondent's exceptions
to the Decision on Order to Show Cause and Order and findsno,merit
in them. The Board has considered the respondent's exceptions to
the Proposed Findings of Fact, Proposed Conclusions of Law, and
Proposed Order, and insofar as the exceptions are inconsistent with
the findings, conclusions, and order set forth below, finds them to be
without merit. -
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent; a Pennsylvania corporation, is engaged in the
manufacture, sale, and distribution of wonen's,full-fashioned hosiery.
The respondent has its principal place of business in Reading, Penn-
sylvania, and operates a plant located in the boroughs of West Read-
ing and Wyomissing, Pennsylvania. All the silk 'and rayon used by
the'respondent, which constitute 90.61 percent of its raw materials, are
procured outside Pennsylvania. Eighty percent of its finished prod-
uct is shipped outside Pennsylvania. In September 1937, a peak
month, the respondent produced 218,353 15/24 dozen pairs of stock-
ings. • In November 1937 it employed. 5,779 employees. The respond-
ent is the largest producer of women's full-fashioned hosiery in the
country, producing about 7 percent of the total output.
10 At the resumed hearing , the,respondent offered in evidence the same material which it
proffered to the Circuit Court of Appeals in support of its petition to adduce additional
evidence The resumed hearing was limited to the issue of 'the cause of, the • 1936 "strike.
The proffered evidence , to the extent that it had any hearing on this . issue , was at best
remote hearsay or the expression of opinions or conclusions . Moreover , the resumed hear-
ing was further limited to the testimony of Adams and the introduction of certain docu-
mentary evidence For these reasons among others, the Trial Examiner 's ruling rejecting
this evidence was correct
BERKSHIRE KNITTING MILLS 963
H. THE ORGANIZATIONS INVOLVED
The American Federation of Hosiery Workers, herein called the
Federation, is a labor organization affiliated with the Congress of
Industrial Organizations," admitting to membership employees in the
hosiery industry. Branch 10 of the Federation admits full-fashioned
hosiery-workers employed in Berks County, Pennsylvania. It is di-
vided into divisions for each of the plants in which it has members.
Those employees of the respondent who join Berkshire Division
become members of Branch 10 and the Federation.
Berkshire Employees Association, Inc., of the Berkshire Knitting
Mills is an unaffiliated labor organization, admitting to membership
only employees of the respondent. It was for a period affiliated with
Berks County Ilosiery Employees Association, herein called
B. C. H. E. A.
III. THE UNFAIR LABOR PRACTICES
A: Domination of and interference with the administration of the
Association and contribution of support to it
1. The strike of 1933
In the summer of 1933, a strike was called by the Federation in the
hosiery mills in Berks County. On July 5, at which time two-thirds
of the other- mills in the county were on -strike, the respondent's em-
ployees responded to the strike call.
Before the strike commenced at the respondent's plant, and while
it was in effect at other plants in the vicinity, the respondent attempted
to induce' its employees to accept an employees representation plan.
On or about June 29, 1933, 20 to 30 leggers 12 were told by their fore-
men to leave work and go to a meeting in the Recreation Hall .13 There
they were addressed by Donald,Eaches, the respondent's purchasing
agent, who read and submitted to them a plan for employee representa-'
tion. He advised the employees that they could accept the plan or
reject it, and also suggested the possibility of holding a general meet-
Formerly the Committee for Industrial Organization.
"Employees engaged in the various operations at the respondent' s plant are known as
footers, leggers, toppers , boarders , and the like
la The respondent , together with Textile Machine Works and Narrow Fabrics Company,
constitute what is known as Wyomissing Industries These three companies were founded
by the same two men 'and have several officers in common . Wyomissing Industries operates
Cooperative Service, an agency serving such functions , on behalf of the three companies, as
distribution of charity and maintenance of medical care. Cooperative Service operates the
dispensary which occupies a building owned and leased to Cooperative Service by the
respondent The facilities in the Dispensary Building are open to all employees of Wyomis-
sing Industries and to no others . The Recreation Hall is located in the Dispensary
Building.
964 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing of the legging department. Eaches then left the meeting, as did
William Brenner, the respondent's assistant superintendent,' Isaac
Witman, superintendent of the legging department, and all other su-
pervisory employees who were present. An employee named Mer-
ritt H. Schoener took the chair. Those present decided to hold a
general meeting.
A meeting of the legging department was held on the same or the
next evening. The employees on the day shift were excused from work
to attend. These employees decided to wait for the night shift em-
ployees and the meeting was delayed until the latter arrived.
Schoener, presided, and read and discussed the representation plan.
During the course of the meeting an employee named Leroy Fritz was
seen to be taking notes. He was forced to desist and the notes were
destroyed. A vote was taken in which all but one of the employees
present voted for rejection of the plan. Thereupon a suggestion was
made that the employees go to the Federation office and join that
organization. As the employees left to follow that suggestion, an
employee named Carl Wolf warned them not to do anything "that
,they would be sorry for."
Similar meetings were held during this period for the footing and
boarding departments. The plan was presented to a selected group of
footers by Marx, foreman of the footing department. Thereafter, a
meeting was held of the entire footing department which was addressed
by Hugo Hemmerich, the respondent's general superintendent., Ma-
chines in the footing department were shut off during this meeting.
Hemmerich told the employees that the local representative of the
Federation was a "radical" whom no respectable people would have
anything to do with, and that if the employees went on strike the mill
would be closed permanently. The plan was again presented to the
employees by Foreman Marx, but was rejected without the taking-of
a vote. .
After these unsuccessful meetings, Eaches spoke to Jacob Engle-
,hart, an employee later active on behalf of the Federation, and urged
him to support the plan, telling him that he was the "one man in this
group who can put it across."
At the hearing Hemmerich testified that the purpose of these meet-
ings was to explain the National Industrial Recovery _Act and that
they were called in response to the questions of various employees about
that Act. However, the presence of,high supervisory employees at the
meetings, the submission of a complete plan of representation as a sub-
stitute for the Federation, and the fact that the meetings were called
and sanctioned by the management make it clear, and we find, that
the respondent used the occasion of, these meetings to bring about em-
ployee adherence to an employees' representation plan and thereby to,
BERKSHIRE KNITTING MILLS 965
manifest -its hostility to the Federation and to forestall organization
of the employees by that union.
The coercive effect of the respondent's activities at this time is in no
way dissipated by the fact that they were not immediately fruitful.
While the plan was rejected at the meetings at which it was offered,
the employees were at no time thereafter given any indication of a
change in the management's attitude toward the Federation. When,
after the strike, steps were taken to form the Association, as described
below; the respondent's previously manifested opposition to the Fed-
eration remained as an obstacle to that organization and as ;an' advan-
tage to its rival. -
The strike of 1933 was settled upon intervention of the National Re-
'covery Administration by an agreement under which the employees
were to "elect their representatives to deal with the management in
working out agreements." When the details of the election were
being arranged, the respondent and the other companies in the county
refused to recognize the Federation as such and insisted on representa-
tion through individuals only.' At a result, the ballots used in the
election contained two columns headed, respectively, "Union Ballot"
and "Non-union Ballot." Each column contained the names of one
candidate for shop chairman and two for representatives. The union
candidates were Jacob Englehart, Luther D. Adams, and Emil Rieve.
The non-union candidates were Schoener, Fritz, and Paul T. Smith.
The election resulted in a vote of 2,662 to 976 in favor of the Federation
candidates. The respondent had from 3,700 to 4,100 employees at this
time.
Following the election the respondent again refused to deal with the
Federation- as. such. It eventually agreed to bargain with committees
set up on a proportional basis; that is, with one non-union representa-
' tive to every three union representatives. Such a committee was estab-
lished but does not appear to have been active.
At the same time, negotiations for a contract took place over a
period of several months between the respondent and Federation repre-
sentatives. Eventually, on January 11, 1934, a contract was executed
between the respondent and Rieve and Adams, "for the employees they
represent." The contract provided for adherence to the hosiery code
established under the National Industrial Recovery Act and to the
wage,scales published by the Full-Fashioned Hosiery Association, Inc.
It also provided for arbitration of disputes by a specified arbitrator.
2. Formation of the Association
i
The Association was organized in the fall of 1933. The leading
figures in its establishment were Schoener, Fritz, and Wolf, and,
later, George Frederick Werner. The first three of these had at this
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time already played, active roles in the opposition to the Federation.
All three were conspicuous in the June departmental meetings de-
scribed above . Schoener and Fritz were two of the three ' non-union
candidates in the 1933 election . The record does not show how these
candidates were chosen 14 When the respondent later signed a contract
with Schoener and Fritz ,, which was treated by the parties as a contract
with the Association , it did so, according to General Superintendent
Hemmerich , on'the strength of their showing in the election . Finally,
both Werner and Hemmerichtestified that the movement to form the,
Association originated prior to the strike. It is-thus apparent that
the movement to form an unaffiliated organization , which was started
by the respondent at the June meetings , was continuous thereafter and
led directly to the formation of the Association.
The first formal meeting of the Association took place on August 28,
1933. There had been informal meetings prior to that date. At the
August 28 meeting, Schoener submitted a set of bylaws which were,,
later adopted.
3. Organizational structure of the Association
The Association was incorporated in May 1935. Under its consti-
tution and bylaws, membership is open to all employees of the re-
spondent except foremen, foreladies, and other supervisory employees.
Membership ceases automatically upon termination of employment.
The Association elects 3 department representatives in each of 17
departments, and the 51 representatives thus elected designate-a com-
mittee of 3 to meet with the management concerning grievances not
settled between the department representatives and supervisors. An
employee's status as a department representative ceases automatically
upon transfer to another department.
Members of the Association pay no dues. The Association derives
its revenue from voluntary contributions, raffles, and social events.
Some time after.its formation, the Association became affiliated with
Berks County Hosiery Employees Associations, a federation of other-
wise unaffiliated employee organizations among the hosiery mills in
Berks County. It withdrew from that organization in May 1937.
4. The use of the Dispensary Building by the Association
The official address of the Association is in the Dispensary Building
owned by the respondent and operated by Cooperative Service.15 At
the entrance of this building there"is a sign 21/2'-by 4 feet which reads
"B. E. A. Office." The Association since its formation ha's held its reg-
14 None of the early leaders of the Association testified at the hearing in this proceeding
except Werner.
15 See footnote 13, supra.
'BERKSHIRE KNITTING 'MILLS 967
ular monthly meetings in the Recreation Hall in the Dispensary Build-
ing and has served refreshments after the meeting in the basement
of that building. Its committee meetings are also held in the Dis-
pensary Building. Officers and committee members are permitted to
remain on the mill property after hours and to enter it on Saturday,
wheli'the mill gates are closed, to transact Association business. The
Association keeps 'a desk, typewriter, and file in the basement, as well
as the blankets which it raffles for revenue purposes, and other sup-
plies. In the words of one Association leaflet,
The Association office is located in the basement of the Recre-
ation Hall. It is here that any member of the Association may
bring his or her grievances or anything pertaining to officers,
work, or other matters of interest to the, Association.
The Association has the respondent's permission to use the Dispensary
Building in the manner described above. It offered at one time to'pay
for the, services rendered but the respondent rejected the offer on the
ground that the Dispensary Building was open to the use of all
employees.
The Federation, however, has not been permitted to use the facilities
of the D spensary Building 16 Requests for such use were made in
1933 and 1934 on behalf' of both Branch 10 and Berkshire Division.
One request, on behalf of the former, was addressed to Henimerich
who, according to his own testimony, treated it as a joke, but stated
that, in any case, Branch 10 could not use the Dispensary Building
because it included members who were not employees of the respondent.
Two requests were also made on behalf of Berkshire Division, which is
'limited to employees of the respondent, at conferences with Purchasing
Agent Eaches and Assistant Plant Superintendent Brenner: At the
first of these conferences, which took place before the Association
became affiliated with. the B2rks County Hosiery Employees Associa-
tions, the request was denied on the ground that the Division had out-
side affiliations. When it was pointed out that the Association was
considering affiliating with the B. C. H. E. A. Eaches stated that
if it did so, use of the Dispensary Building would also be denied to it.
Despite this assurance, the Association continued to use the Dispensary
Building after it joined the B. C. H. E. A. In addition, one or two
meetings of the B. C. H. E. A. were held in the Recreation Hall. At
the same time, a further request for such use on behalf of Berkshire
31 The respondent states in its brief that the Federation did use the Recreation Hall on
two'occasions The occasions referred to are one of the meetings called by the respondent
in 'June 1933 to launch an employee representation plan, referred to above in Section
III A 1, and an Association meeting in September 1935. While Federation members were
present at these two meetings , it is absurd to contend that their presence constituted use
of the Recreation Hall by the Federation.
968 DECISIONS OF NATIONAL LABOR - REL'ATTONS BOARD
Division was denied; Eaches said merely "you know I` can 't answer
that."
5. Solicitation of members in the needle-straightening room--
New employees who start. working for the respondent with the hope
of becoming knitters are assigned first to the cleaning department.
After a short period of from a few days to 2 months, they are sent to
the needle-straightening department, where they are taught to
straighten knitting needles by J. E. Wertz and his superior, William
Kauffman. After 4 to 6 days they may be sent on to Claude Hilbert,
who teaches them the elements of operating a knitting machine. After
1 to 3 days under Hilbert they mny be sent out into the plant as
knitters' helpers.
Wertz and Hilbert admitted soliciting membership on behalf of the
Association while performing their tasks as instructors. Hilbert was
on the membership committee of the Association and solicited "quite a
few" employees between 1935 and the date of the hearing. Wertz
admitted asking as many as 100 employees to join the Association.
He testified that he stopped doing so in 1936 when his superior, Kauff-
man, told him that his conduct was in violation of the respondent's
rules. • Kauffman admitted that he was aware of Wertz's activities
long before he took any steps to call them to a halt. Finally, several
employees testified that Kauffman also solicited membership for the
Association during 1933 and 1934. While Kauffman denied that he
had done so, we find that the testimony of these witnesses is credible
and that Kauffman likewise participated in this activity.
The solicitation in the needle-straightening room was carried on
openly on company time. Employees were `taken from their work in-
groups, given application cards, and urged to join the Association.
Several witnesses testified, and we find, that they were given to under-
stand that their chances for advancement would be greater if they
joined the Association .17 There is no evidence that the advancement
of any employee was in fact retarded because he refused to join the
Association. However, it is common knowledge that it would require
unusual fortitude to ignore the threat which, even where not expressly
voiced,'was implicit in the positions of these three employees.
' The issue of the capacity of Kauffman, Wertz, and Hilbert to bind
the respondent by their acts has been vigorously contested: The
17 One employee, whom we credit , testified as follows :
That same afternoon when I was called up to have my needles examined, Mr Kauff-
man was examining my needles , and at the same time talking to me.
He said , "Epp, why did you not sign this card?" And I said, "I don ' t want to join
any organization at all at this time. I don 't understand enough about it"
He said, "You want to become a knitter , dont you?" I said, "well, I hope to be."
He said, "well , your chances are very slim . Take these needles back and get them
straightened right."
BERKSHIRE KNITTING MILLS 969
respondent contends that they are not foremen or supervisors.,, The
record establishes that the titular foreman of this department is one
Ernest `Geiss. However, the record also shows that- Geiss is rarely
present'in'the needle-straightening room, and that Kauffman is in full
charge in his absence. We find that Kauffman is a supervisory
employee.
Furthermore, Kauffman, Wertz, and Hilbert have the authority to
decide whether an employee's showing under their instructions war-
rants his being sent on to the next step in the training of a knitter.
Thus, when a foreman needs a new man, he goes to Hilbert, who may
release one of the employees whom he has instructed or retain him if
he'does not consider him ready to go out into the plant. Hemmerich
admitted that Kauffman and Wertz had authority to recommend
dismissal of an employee if he is not proficient, and Hilbert testified
that if he finds that a man is not competent he reports that fact to the
respondent's foreman. ' It was not contended at the hearing that
Wertz or- Hilbert were foremen. Nevertheless, the position of these
two employees, as well as that of Kauffman, as the sole contact between
the employees in the needle-straightening room and the management,
and their power to advise 'the respondent concerning the merits of
employees seeking to become knitters, is such as to place them in a
position which renders the respondent accountable for their'actions.
Clearly they were "in a strategic position to translate to their subordi-
nates the policies and desires of the management" and the respondent
was "in a position to secure advantage from'? their activities 1S More-
over, the respondent must answer for the activities of these men for
the independent reason that they took place openly on company time
and property and yet no attempt was made to check this continued
violation of plant rules.19 The fact urged by the respondent, that the
activity in question was contrary to plant rules, supports rather than
negates the conclusion that the respondent was responsible for this
activity. Its failure to enforce the rule against the Association could
not-,but convey to its, employees its partiality to that organization.
6. Distribution of Association leaflets
Association leaflets were frequently foifnd by the employees on their
tables when they, came to work. The uncontradicted testimony of
David S. Horn, `hich we find to be credible, shows how at least one
"International Association of Machinists v. N. L. R. B., 311 U. S 72, 80; Heinz Co. v.
N L R B , 311 U. S. 514.
"See Titan .Metai Manufacturing Co v. N. L R. B , 106 F ( 2d) 254, 259 , ( C. C. A. 3),
cert. denied , 30S U S 615 , where the Court said :
We might say that both the threats and the promises are uttered by foremen or
higher'employees on company time and on company property . We ate not concerned,
therefore , with the disturbing question of how much responsibility creates a "super-
visory" employee.
G
970, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of these leaflets was distributed late in 1935. Horn was asked by,
Association President Werner to attend a meeting of the Association
at night. There were 20 to 25 employees present. Werner divided
a stack of leaflets among them and then went,,-with them to•4he gate
house, where he arranged, by telephone, to have the various buildings
unlocked. The employees then dispersed, and went through the
plant, placing the leaflets on the various tables where they would be
found by the employees the next morning. Horn had some leaflets
left when he was through and Werner told him to put ,them in the
automobiles on the respondent's parking lot the next day. Horn
did so.
In September 1936, immediately before the strike which com-
menced on October 1 of that year, the respondent again assisted
directly in the distribution of Association leaflets by permitting em-
ployees to take time off' to hand them out at the plant gates.
Francis Petro .and several other employees, -while at work at- about
1: 15 p. in. on September 30, were told by their foreman Kellner, to
go with an unidentified man, who led them through connecting tun-
nels to the basement of the Dispensary Building, where the Associa-
tion's-office was located. There they were met by Werner, who gave,
them leaflets entitled "Questions . for, the Hosiery Union to Answer."
Werner accompanied them to the various gates of the plant and' in-
structed them to distribute the leaflets to the employees as they left
the mill. It was raining and. Werner gave the men raincoats with
the letters "B. K. M." printed thereon. We find that these raincoats
were the property of Berkshire Knitting Mills, the respondent.
Petro stayed at the gate until 4 p. in., his regular quitting time. He`
was paid his regular wages for ' the time . thus spent.
Another employee, Samuel Aiello, was taken from his work'with,
one' other employee for the same purpose and, similarly at the direc-
tion of his foreman and Werner, distributed the September 30 leaflet
on company time.
7. Activity of the Association prior to the 1936 strike
As more fully described below, the Federation called a strike on
September' 26, 1936, which 1^ommenced on October 1. During this
4-day period, the' Association, and particularly its president, Werner,
were ' permitted great leeway by the-respondent to engage ,in. anti-
strike activity.
From September 28 to 30 a petition was circulated among the
employees opposing the threatened' strike. The record shows that
this circulation was an Association project. Knitters were permitted
to leave their' machines to go to an Association meeting at the Recrea-
tion Hall, during this period, where they' received copies of this
BERKSHIRE KNITTING, MILLS 971
petition. ' The petition was admittedly circulated by members of the'
Association, having been started at the suggestion of Werner, who
organized its circulation. The petition was circulated during hours
in the plant. This activity was ili violation of the respondent's plant
rules, yet no restraints were placed upon it. In several departments
the foremen took an active. part in procuring signatures and in
following up on those employees who refused to sign when asked to
do'so by the employee solicitors. In several cases the employees were
called from their work in groups. -
In addition to participating in the circulation of the petition dur-
ing this period, Werner spoke to the employees directly in the plant.
Thus on September 30 at 2 p. in. Werner entered the seaming depart-
ment and addressed the employees, warning them that they would
lose out by going on strike and that "those that walk out on strike
won't get,their-jobs,_back." During this episode the, foreman and the
machinist shut off the power in one-half of the building.
8. Activities of the Association with regard to working conditions
On October 19, 1933, during the negotiations between the respondent
and the Federation for a contract, the Association wrote to the respond-
ent, claiming to represent a majority of the employees and asking that
it be given a contract identical with any secured by the Federation :
"We ask for no favors but request a parity of agreement and recogni-
tion." As above noted, a contract was executed between the respondent
and Federation representatives on January 11, 1934. On the next day,
the respondent signed a contract with Association officials, Fritz and
Schoener, which differed from the Federation contract only in that it
failed-to name. a specific arbitrator. Fritz and Schoener were recog-
nized for the employees they represented. By supplement executed on
January 22, the contract was extended to run until December 31, 1934.
It provided for automatic renewal unless canceled on 30 days' notice.
The Association and the respondent treat this contract as a contract
with the Association and consider it to be still in effect by virtue of its
automatic renewal provision 20 . ,
During the period after invalidation of the N. R. A. in 1935, the
respondent departed, in several respects, from the standards set in the
N. R. A: Hosiery Code, which was incorporated in the contract with
Fritz and Schoener. In fact, the question, of the departure from
these standards became one of great concern throughout the industry,
and was ' an important factor in the strike of 1936, as is more fully
"As noted In Section III B 1 , the contract between the respondent and two officials of
the Federation terminated on June 1, 1934. '
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described below. The respondent was the leader in the industry, in this
so-called "breakdown of standards."
The Federation resisted the respondent's departure from Code
standards. The Association, however, condoned and approved them
and attempted to bring about their acceptance by the employees. -
The 11.11 bonus. Under the Code, hours for footers were reduced
from 40 to 36 per week whenever two shifts were operated. To avoid
a consequent reduction in wages, it was provided that a bonus of 11.11
percent of the amounts earned at piece work during 36 hours be paid.
The respondent abandoned this provision shortly after the N. R. A.
was invalidated, thereby creating "a very vital problem in the indus-
try," as Werner testified.
The Federation held meetings'and• conferred with Hemmerich, pro-
testing this departure. Hemmerich replied that the respondent could
not pay the bonus because of Southern competition and warned that
the respondent itself might be required to move South. The Associa-
tion also held a meeting which was attended by several representatives
of the Federation. Fritz reminded those present of Hemmerich's
warnings that the respondent might move South, and stated that the
Association had conferred with the respondent about the 11.11 bonus
and that it was doing its best to keep the respondent in Berks County.
The following day, the Association announced in a leaflet as "Accom-
plished by Berkshire Employees Association," a "compromise" of the
11.11 issue, whereby the respondent was to attempt to have all footers
working 40 hours a week, and in the meantime was to pay an 8.1 per-
cent bonus to those working 36 hours. In fact, however, not even this
"compromise" was put into effect until the 11.11 issue was raised again
2 years later during the strike of 1936.
Multiple machine system. It is the practice in the hosiery industry
to train helpers and apprentices for several years before they become
full-fledged knitters. These helpers receive lower wages than the
knitters. The Federation has strived for a policy throughout the
industry of having one knitter, paid at knitter's wages,-assigned to
every machine, and that practice- has been widely accepted. The
Hosiery Code required the single machine system for footers and
banned the extension of the double and multiple machine system for
leggers. I ,
After invalidation of the Code, the respondent departed from the
single machine system for footers employing only one knitter for
two, and in some cases many more, machines. The helpers employed
in place of regular knitters received much lower wages. The Asso-
ciation echoed the respondent's defense of this system on the ground
that it was "voluntarily accepted" by the employees involved.
The 51-gauge contracts. Early in 1936, the respondent introduced
a system whereby individual contracts were negotiated with the
BERKSHIRE KNITTING MILLS 973
knitters producing 51-gauge stockings, the highest quality produced
in the industry. Under these contracts the knitters were guaranteed
50 weeks of work per year at a flat rate of $45 for an amount of
work for which they would be paid $65 to $75 under the Code piece-
work rates. When, there was no 51-gauge work to be done, the con-
tract knitters were assigned to 45- and 48-gauge work, thereby dis-
placing the piece-rate workers at those levels.
These contracts were admittedly a departure from the contract
with Fritz and Schoener, imposed by the respondent without con-
sultation with or action by the Association. Yet the Association
made no protest and, in fact, vigorously defended the contract system
as the result of "true collective bargaining." At the same time, it
failed to act on its contention that the contract system was, beneficial
by pressing for its extension to 42-, 45-, and 48-gauge knitters, who,
it is claimed, desired the protection of its guarantees.
Saturday work. In July 1936, the respondent kept its plant open
on a Saturday. The Federation at once instituted a vigorous cam-
paign, which included picketing and a mass meeting, in an effort
to halt this departure from Code standards. The Association
countered With a leaflet which stated that an Association committee
had met with the management and had been
... definitely assured by Mr. Hugo Hemmerich that there has
been no change made in the policy of the Berkshire regarding
Saturday work. The-Berkshire Mill, we were told, has adhered
to the 5 day week of 40 hours and will continue to do so. This
is their policy and last Saturday was only an exception, when
in order to fill a rush order, those who willingly would, were
allowed to work and complete this order.
OUR COMMITTEE HAS BEEN ASSURED THAT THE
BERKSHIRE WILL NOT change any provisions pertaining
to hours of work or working days per week, as originally 'set
up in the N. R. A. Hosiery Code.
The leaflet went on to state. that the Association was "unalterably
opposed to a return to Saturday work."
After the Federation held its demonstration, the respondent an-
nounced that it would continue, when necessary, to operate its finish-
ing department on Saturdays., There is no evidence that the Asso-
ciation joined in the Federation's protest about this announcement,
despite its claim that it had been "assured" by the respondent that
there would be no more Saturday work, and its insistence that it
was "unalterably opposed . . . to Saturday work."
Grievance work. The Association handles grievances of its mem-
bers through a, departmental system, whereby 3 representatives are
974 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD-
`elected in each of 17 departments. These representatives hold monthly
meetings and annually elect a committee of 3 to deal with the man-
agement. Grievances are taken up in the first instance between
departmental representatives and foremen. If not disposed of in
this fashion; they are discussed, between the management and the
elected committee of 3. Several hundred grievances have thus been
handled.
The respondent contends that this machinery indicates the inde-
pendence of the, Association. However, the existence of grievance
machinery, frequently to some extent effective, is a common feature
of company-dominated organizations, and is as consistent with em=
ployer domination as with his absence.21 ' The 'record here shows that
despite the Association's claim that it secured many raises for various
employee groups, none of these was put in writing or otherwise re-
moved from she complete control of the management. Furthermore,
adverse decisions concerning grievances made by the respondent were
never challenged, and the arbitration procedure of the contract with
Fritz and Sclioener was never resorted to. Finally, the grievance
records of the Association show no disposition as to many of the
cases and as to many others a statement only that the matter would be
investigated. The testimony of one departmental representative,
which we credit, shows that this answer was-frequently given to com-
plaints discussed at meetings of departmental representatives and that
usually nothing more was done.
On the entire record, the grievance machinery of the Association
appears to have been at best .a method which enabled employees to
submit complaints to the management for its unilateral determination.
9. Other activities of the Association
In addition to its vigorous defense of the respondent's economic
policies in derogation of the interests' of the employees the Associa-
tion has engaged in other conduct which is inconsistent with its pur-
ported status as a representative of employee interests. Among the
leaflets which it has distributed are two which purport to interpret- the
Act. Neither ' of these pamphlets, enlarges on the affirmative rights
of employees under the Act; they stress rather the employer's right
not to sign agreements with labor organizations and the employees'
right not to join any union at all. One of these leaflets, entitled "What
Does the Wagner Bill Mean to You?" is a form of pamphlet which was
given widespread currency during the early years of the operations
of this Board. It was widely distributed by employers hostile to the
rights guaranteed under the Act. .
Q' Cf. Western Union Telegraph Co. v. N. L. R. B., 113 F: ( 2d) 992, 997, (C. C. A. 2).
I BERKSHIRE KNITTING ' MILLS 975
The pamphlet distributed by the Association included the follow-
ing questions and answers :
QUESTION : Does the President or the Government expect me to
join a national labor union? Does the bill require me to join and
pay dues to such an organization?
ANSWER : President Roosevelt, in creating the Automobile La-
bor Relations Board in 1934, said: "The government makes it
clear that it favors no particular union or form of employees
organization or, representation."
Senator WALSH : "The bill does not require or request any ems
ployee,to,join any organization of any kind, shape or character.
It does not seek -to' encourage or-bring-about the establishment of
any labor organization ender,any employer where there is now
none."
QUESTION : If my employer should engage in. collective bargain-
ing with a labor union, must he are to its demands? Must he
reach an agreement of any nature?
ANSWER: Senator Walsh. "The bill requires no employer to
sign any contract, to make any agreement, to reach any under-
standing with any employee or group of employees."
Senator Wagner of New York, author of the bill, said: "It does
not compel anyone to make a compact of any kind if no terms
are arrived at that are satisfactory to him. The very,essence of
collective bargaining is that either party shall be free to withdraw
if its conditions are not met."
We have rrepeatedly held that the distribution of this pamphlet by
employers constituted-an unfair 'labor practice.22 The use of this
typical anti-union weapon by the Association is inconsistent With its
asserted status as a free bargaining representative of employees.
.These and other activities of the Association strongly indicate that
its chief purpose has-been to support the aims of the respondent even
when they were detrimental to the employees.
10. The Association's membership
Despite a paper membership, as of November 27, 1937, of 3,108, the
Association-has not received the active support of any large group
of employees. Its meetings are poorly attended. Its constitution'
.originally specified 10 percent of the membership as a quorum at its
monthly meetings. This was changed to 20 members, in March 1936,
22 See , for example, Matter of Norristown Bow Convpany and International Brotherhood
of Pulp,'Sulphite and Paper Mill Workers, Local 422, 32 N L R. B 895, enf'd 124 F (2d)
-429 (C. C A. 3) ;,and the numerous cases cited in our decision in the Norristown case, 32
N. L. R B , at p 903, note S.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because it was found impossible to obtain, a quorum at meetings. ' In
fact, in January. 1936 Werner was elected president of the Association
at a meeting at'which there was no quorum. Similarly, in 19371it
was'found to be impossible to elect representatives of the de i tiiients
and the Association's board of directors was authorized to appoint
them.
Association members pay no dues and in fact have no obligations
to the Association which might tend to indicate continuing adherence
to that organization. Thus an employee once enrolled as a member
would 'continue to appear as such in the Association's books unless
he had been formally ousted because of activity on behalf- of a rival
organization, which the Association forbids or unless the Association
learned of and acted upon his removal from the respondent's pay roll.
However, the Association has no regular means, of learning about such
severances . There is credible testimony that many employees de-
stroyed their membership cards as soon as they received them, having
joined only because they considered it, unwise to refuse to do so.,
11. Conclusions as to the Association
On the facts set forth above as well as certain further facts regarding
the activities of the Association during the 1936 strike which are de-
scribed below, we conclude that the Association has been illegally
dominated and supported by the respondent.
The Association came into existence in 1933, as a direct result of
the respondent's open attempt to foster a rival to the Federation.23
,At'the time of its formal organization, the respondent, despite a show-
ing that a substalitial majority of its employees desired representation
through the Federation, was placing obstacles in the way of the
effective functioning of that organization as a bargaining agent.' The
respondent's refusal to deal with the Federation as such, or to recog=
nize it or its officers as representatives of all of the employees, while
not illegal at the time, constituted a clear showing of hostility to' the
organization of the employees' choice, a showing which was not later
"Consideration of the circumstances surrounding the origin of the Association and the
respondent's conduct with respect to labor organizations in its plant prior to the effective
date of the Act is necessary to "an intelligent understanding of the case." Western Union
Telegraph Co v N L R B, 113 F (2d) 992, 994 (C C A. 2) ; N L R B y Pennsylvania
Greyhound Ltines, Inc., 303 U S. 261. Dforeover , there is no merit in the respondent's con-
tention that the Board may not consider whether conduct which occurred prior to the
effective date,of the Act would have been illegal if it had occurred after that date A labor
organization established before passage of the Act, under circumstances which the Act
treats as inconsistent with employee freedom , may not legally be recognized thereafter even
in the absence of further independent acts of domination, interference , or support. N L.
R. B v. McLain Fire Brick Go , 128 F . ( 2d) 393 (C. C A. 3).
BERKSHIRE KNITTING MILLS 977
disavowed. The Association, from the time of its origin, reaped the
benefit of this hostility.24
Both before and after the passage of the Act in July 1935, the
Association was supported by the respondent. The use of the Recrea-
tion Hall constituted such support and was illegal after passage of the
Act. This is true irrespective of the refusal of such use to the Feder-
ation. The granting of the facilities of the Dispensary Building gave
the Association a convenient meeting place which was of great value,
to it, a, value which cannot be measured merely in terms of the
money which the Association would have had to spend to secure quar-
ters elsewhere. , The permanent possession of part of the mill prem-
ises, marked by a sign at the entrance thereto, 'inevitably lent to the
Association an appearance of official status as a regular activity of the
respondent. The grant of such valuable facilities to a labor organ-
ization which exists without dues or regular means of support must
fundamentally impair its freedom, particularly where, as here, the
facilities may be withdrawn at a moment's notice by the management.
The illegality of the respondent's conduct with reference to the
Dispensary Building is all the more clear if its refusal to grant equal
facilities to the Federation is taken into account. This was a type
of discrimination which is clearly prohibited by the Act. The
respondent appears to rely on the fact 'that its rules required the
unequal treatment accorded the two organizations. However, the
rules were not applied impartially. Berkshire Division, consisting
only of employees of the respondent, was denied the use of the hall.
In addition, B. C. H. E. A., which included non-employees, held meet-
ings there. Moreover, the rule itself was an improper one in its
application to labor organizations, since it of necessity inured to the
benefit of one type of organization over another and placed at a dis-
advantage any union which had outside affiliations.
The solicitation of membership in the Association which took place
in the needle-straightening room likewise constituted powerful sup-
port for the Association. Further support was had of the respondent
in facilitating the distribution of Association leaflets' by paying for
the time of the distributors in the case of the September 1936 leaflet and
in arranging for distribution on its premises of the leaflet distributed
in the fall of 1935.
The bylaws of the Association give the respondent an effective
means for keeping its representatives docile. Membership in the As-
sociation terminates automatically with termination of employment.
Thus the status, of any official can be destroyed by his discharge,
""Known hostility to one union and clear discrimination against it ' may indeed make
seemingly trivial intimations of preference for another union powerful assistance for it."
International Association of Machinists v. N. L. R. B., 311 U. S 72, 78.
504086-43-vol 46=62
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether or not the discharge is legal. In addition, departmental
representatives lose their status as such upon transfer to another de-
partment; thus the respondent can, by its own act, remove any em-
ployee representative who presses the interests of his constituents in'a
manner unwelcome to it.25
The activities of the Association, described above, show that the
respondent's domination and support have had effect. The Associa-
tion has not functioned as a free collective bargaining agent'; rather
it has represented the interests of the respondent by seeking to procure
the acceptance by the employees of adverse changes in their working.
conditions, by acquiescing in violations of its contract, and by circula-
tion of literature hostile to self -organization .26
In arriving at our conclusion with respect to the Association we have
taken into consideration also the respondent's hostility to the Federa-
tion as described below and more particularly its conduct in-dealing
with the Association while refusing to deal with the Federation, con-
duct which clearly constituted support for the former. In other ways,
during the strike, the respondent gave assistance to the Association, as
by freeing the Association's president, Werner, from his regular work
to enable him to engage in anti-strike activities.
We find that the respondent, after the effective date of the Act, has
dominated and interfered with the administration of the Association
and, has contributed support thereto, and has thereby interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. The strike of 1936
1. The respondent's relations with-the Federation from 1933 to 1936
As previously noted, negotiations between the respondent and the
Federation after the 1933 strike eventually resulted in a contract
executed on January 11, 1934, between the respondent and Rieve and
Adams. The, contract' was to ,run 'until, June,1,, 1934, and thereafter
unless terminated on 30 days'-notice. A dispute had meanwhile arisen
85 See Matter of Highway Trailer Company and United Automobile 1Voikers of America,
Local No 135 and Local No 136, 3 N. L R B 591, 607.
26 The respondent offers as proof that the Association wwas not illegally dominated and
supported the fact that the Federation, immediately prior to the 1936 strike as noted below
in Section III B 2, as well as at other times, made efforts to secure ,the Association 's coop-
eration . That fact is not decisive of the issues here presented . It is well known that,
particularly during the pe'riod'prior to the establishment of the validity of the Actin April
1937, bona fide , industrial unions made frequent attempts to work with and, if possible,
win over the leaders of manifestly illegal organizations See, e g., United States Depart-
ment of Labor , Bulletin No 631, Characteristics of Company Unions, 1935 (U S Govern-
ment Printing Office , 193S )'- P, 193-195; Daugherty , Labor Problems in'American Industry
( Rev.1:Ed: ; 1938 ), pp. 643-644 ; Walsh, C. 1. C . Industrial UnioiiisnCiii''Action ( 1937) pp.
67-72. The record leaves no room for doubt that from the inception of the Association,
the Federation considered it to be a company -dominated organization.
7
BERKSHI'RE' KNITTING MILLS 979
concerning the, charges for the needles used by knitters. Prior to the
1933 strike needles had been supplied by the mills in Berks County
without charge. After the strike the respondent and the other mills
started- charging,,,, for, these needles. The question . was' vigorously
.discussed and, in March 1934,' the respondent and the other mills
announced that they would charge 50 percent of cost for the needles.
The needle question was thereupon submitted for arbitration to Taylor,
the arbitrator named in the contract between the respondent and Rieve,
and Adams, by the Federation and another mill involved in the needle
dispute. It was understood generally 'that Taylor's decision would
apply to all mills. On May 8,1934, Taylor held that the mills should
supply a specified number of needles'free'of charge. The respondent
and the other mills refused to accept, this decision, whereupon Taylor
resigned as arbitrator.
On April 28, 1934, Rieve and Adams wrote to the respondent, stat-
ing that since conferences with its representatives had not resulted
in a satisfactory arrangement, the contract of January 11 would ter-
minate according to its terms on June 1, 1934, and that the writers
'were'ready and willing to meet with the respondent to discuss future
arrangements. The respondent replied on May 1, acknowledging can-
celation of the contract but making no reply to the request for further
conferences. No -such conferences were ever' held. Negotiations did
take place, however, between the respondent and the Federation,
throughout the period from 1933 to 1936' concerning particular mat-
ters. These included specific questions regarding working conditions
and claims on the part of the Federation that the respondent was dis-
criminating against its members. These conferences were, for the
most part, fruitless. Hemmerich took these occasions to voice re
peatedly the threat that the respondent would move South.
In October 1935 an incident occurred in which the respondent
clearly manifested to its employees active hostility toward the Fed-_
.eration. The employees in the pairing department were told by a
foreman, Wentworth, that an adverse change was to be made in the
'manner in which they were paid, for a particular type of work. The
next morning, the girls in the pairing department decided that they
would not work until the change was rescinded. Mrs. Goodman, an
active member of the Federation, persuaded the girls not to stop work
but to select a committee to discuss the matter with the management, ,
the committee ' to consist of' Federation and Association adherents.
This plan' was put into effect and a; committee, led by Goodman as
chairman, saw Hemmerich who told, them that the announced change
would not be made. Four or 5 days after this conference, an article
appeared in the' "Berkshire .Unionist,", a Federation publication, con-
cerning this incident. It noted that the employees, had gained their
demands regarding the proposed change in wages.and stated that this
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been accomplished. by a "complete stoppage, of work." In fact,
while threatened, no such stoppage had occurred. The article went
on to cite this incident as an example of what the employees could
gain by united action.,
The respondent acted swiftly to counteract the effects of this article.
Superintendent Fisher told the members of the committee that unless
they signed a' denial of the statements contained in the "Berkshire
Unionist" article, Goodman would be discharged. Thereafter the
girls were told by Foreman Wentworth to go to Hemmerich's office.
Hemmerich told the committee that they would all be discharged un--
less they signed a "retraction." Goodman drafted a statement, which
was submitted to Hemmerich. He refused to approve it and outlined
what he wanted in the statement. After two or three further revisions
'he approved a form which was signed by the eight pairers. The
statement, which was, posted throughout the mill and remained posted
in the pairing department for 6 months, recited that the "Berkshire
Unionist" article was "grossly, untrue and misrepresentative of the
facts in ,the case"; that Hemmerich had declared that "there was no,
basis to the rumor, that wages were to, be reduced"; and that "'the same
harmonious relationship exists in our,department today as, we have
previously enjoyed."
This "retraction" materially misrepresented the facts about the
pairer incident. The "Berkshire Unionist" article was substantially
true in ,all respects ; the one statement which was not strictly accurate
did not deal with the respondent's activities and was- not referred to
in the "retraction" forced upon the employees by Hemmerich's threats
of discharge. The respondent contends in its brief that "no one has
the right to spread false and misleading information, and in demand-
ing that the article be repudiated, the respondent was acting ien-
' tirely within its rights." In making that argument, the respondent
persists in ignoring the fact that it did not demand repudiation of the
only misstatement in fact made in the "Berkshire Unionist" article.
It is clear, therefore, that Hemmerich's action was not prompted by
a desire to refute misstatements, on the part of the Federation. The
"retraction" was rather designed to disguise the fact, correctly publi-
cized by the "Berkshire Unionist," that collective action by the pairers,
led by a Federation adherent, had,resulted in an' improvement, in
their working conditions. In achieving this purpose through the exer-
cise. of economic pressure on its employees, the respondent interfered
in',a,field exclusively reserved to employees under the Act.
2., Events leading up to the strike
At a meeting of Berkshire Division held near the end of July 1936,
it was decided that vigorous steps should be taken to check the "break-
down of standards" and, to that end, that meetings be called of the
BERKSHIRE, KNITTING MILLS 981
,employees in the various departments to secure specific data about
working conditions and the respondent's activities relative to the
'Association. Such meetings were held. In the meantime, II: W.
Payne, district manager for the Federation, wrote to Hemierich
on August 18 and 21, complaining about favoritism to the Association
on the part of the respondent, as well as the respondent's maintenance
of a third or "graveyard" shift. These letters were not answered.
On September 12, 1936, Berkshire Division held a meeting open to
all employees of the respondent. Werner, president of the Associa-
tion, attended and spoke, admitting that the standards of the industry
were being departed from by the respondent. He insisted that he
had plans for correcting this condition and that, if left alone, he
would get "surprising results" within a week or two. Foreman Went-
worth of the pairing department also attended the meeting and
spoke. There had been some discussion of conditions in the pairing
department, and Wentworth announced that he. had always been able
to settle grievances himself and that it was not necessary to carry
them to the manegement. He was at once ordered to leave but refused
to do so.
It was finally decided at this meeting of September 12 to communi-
cate with the Association in an attempt to establish a joint commit-
tee to discuss working conditions with the respondent. Accordingly,
on September 14, Adams, president of Branch 10, wrote to the Associa-
tion, requesting it to appoint four to six of its members to a joint com-
mittee to meet with Hemmerich on or before September 26 for the
purpose of securing a return to the conditions existing after the 1933
strike. Despite Werner's admission at the September 12 meeting that
working conditions required improvement, no answer was sent to this
letter. On September 22, Adams sent a second letter in which he
noted reports in the press that the Association had adopted a resolu-
tion condemning "substandard" conditions at the respondent's mill and
that the Association had at the same time announced that it would not
cooperate with the Federation. Adams repeated his request for co-
operation but stated that the Federation "will proceed along its own
lines if it cannot obtain]" action." The Association also failed to
reply to this letter.
In the meanwhile, the Federation had also communicated with the
respondent. On September 14, it wrote to Hemmerich, discussing the
breakdown of standards at length and stating that :
A strike will be called at the Berkshire Knitting Mills unless
the company definitely undertakes in writing to :
1.)'Observe the eight hour day 40 hour five day week in all
departments of your plant; the only exception` will be those,as
provided in the hosiery code.
982 DECISIONS-"OF NATIONAL LABOR RELATIONS BOARD
2.) Pay the full prevailing wage rate which is now being paid
in the vast majority of plants in the industry and minimum-rates
shall be'those' in' the °NRA •hosierf code.
3.) Eliminate all three shift operation: obey code regulations
as to "double job operation" etc.
4.) There must be a clear cut recognition of the American
Federation of Hosiery Workers as the collective bargaining unit
for all Berkshire employees; it is obviously impossible to enforce
an agreement as to wages and working conditions in the Berkshire
unless the union is able to function effectively in this plant.
Adams wrote again on September 22, urging the importance of dis-
cussing various specified matters and stating that unless he heard to
the contrary he would appear at Hemmerich's office with a committee
of Berkshire Division members on September 24 at 4:15 p. in. The
respondent did not answer either of these letters. Instead, on Septem-
ber 24, Luther A. Ammarell, president of Berkshire Division, was
approached while at work by his foreman and told that Hemmerich
was willing to see a committee of Berkshire employees on September
26 but that he would not confer with Adams.
On September 26, Hemmerich met with a committee of six members
of Berkshire Division, led by Ammarell. Hemmerich explained his
refusal to see Adams at this time on the ground that the 1934 contract
with the Federation had been canceled. The economic issues raised
in the Federation letter were discussed briefly. Hemmerich accused
the committee of trying to stir up trouble and warned that its members
would be held responsible for any action taken by Berkshire Division.
He insisted that the respondent was conforming to the N. R. A.
standards and that such matters as the 51-gauge contract and Satur-
day work were accepted voluntarily by the employees. Finally, he
announced that no changes would be made. In addition, he questioned
individual members of the committee about their own grievances and
particularly berated one of them for appearing on the committee after
a personal grievance of his own had been adjusted.
At a meeting that afternoon, the results of this conference were
reported. A committee was given authority and directed to call a
strike within 1 week.21 The strike commenced on October 1, 1936.
3. Events during the strike
The strike which `commenced on` October 1; 1936; was a long and
bitter one. Picketing started at once and continued until August 1937.
At times the picket lines numbered in,the thousands, being augmented
"As described below in Section III C 2 , an'employee named Eugene Moyer was discrimi'
natorily discharged on September 2S because he spoke at this meeting.
BERKSHIRE KNITTING MILLS 983, ;
by employees from other mills in the vicinity, as well as from Phila-,
delphia and New Jersey. There were several serious clashes between
pickets and 'non-pickets, one of the worst of which occurred on the
-first day of the'strike and resulted in the death of a non-striker. Dur-
ing the strike, Branch 10 resorted to "lie-down" picketing in which
large groups of employees lay on the sidewalk in front-of the mill
gates. Many-were arrested and fined or imprisoned for this activity.
State police were frequently, present during the first few months, of
the strike.
There was a large- amount of destruction of property during the
strike. Automobiles were smashed; bottles filled with paint were
hurled through the windows of houses. However, the identity of the
perpetrators of these deeds is not disclosed by the record.
We have noted above that there was a great deal of destruction of
property during the strike. The respondent paid for as much of this
destruction,as .was,.called to its, attention. -While, it never announced
formally that it would do so, it was generally known that damage
should be reported to Irvin J. Noll, the respondent's traffic manager,
and that he would see to its repair at the respondent's ,expense. In
this manner, the respondent paid out (1) $4,532.35 for damage to
automobiles, (2),$50 ' 1.79 for damage to personal property, (3) $403
for personal injuries, and (4) $7,145.27 for damage to real property.
Of this total of $12,582.41, the respondent-was reimbursed to the ex-
tent of $7,300.15 under insurance policies taken out shortly before the
strike began.
Deputy sheriffs were present at the plant in varying numbers on
October 1 and continuously from a later date in October to June 30,
1937. The number of deputies on duty,,during 1937 was high, as
many as 40 to' 60 during March, Except for the period from Jan-
uary to March 7, the deputies' salaries were paid`by the respondent..
There is no explanation of these payments during 1936. Payments
after March 7, 1937, were made because Berks County, through its
treasurer, had refused to approve further payments on the ground
that there appeared to be no necessity for, keeping so large a force at
the plant. In addition to paying the deputies' salaries, as above-
described, the respondent served them with meals throughout the
period that they were at the plant. Finally, the respondent also paid
the salaries of, a number of special borough police assigned, to the
mill during the strike. In all, the respondent's total expenditures for,
these purposes came to $934.99 for meals -at its -cafeterias, $20,199.11
for deputies' salaries, $4,257.85 for borough police, and $5,422.44 for
special police supplied by Textile Machine Works.
The record shows that the activities of, these deputies and police,
while receiving salaries and other support from the respondent, were
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not limited to the preservation of order. Indeed, the maintenance
of a large force at the'plant after the county treasurer had determined
that it was unnecessary is a strong indication that the preservation
of order was not its sole purpose. The deputies were supplied by,the
respondent with guns and clubs. Rambo, a deputy, testified at the
hearing that another deputy told him, on the way to the plant on
January 8 , 1937 ,° "Things are getting quiet . . . you watch me."
After arrival at the plant the' deputy who made this remark started
one of . the worst riots which occurred during the strike by suddenly ,
starting to swing his club back and forth ., On another occasion, the
deputies and borough police, led-by Neidig', burgess of West Reading
and an employee of Narrow Fabrics Corporation ,28 started out toward
Federation headquarters on a raid, fired a shot or two and retired.
The "raid" was conducted because "business was bad" and the depu-
ties were afraid that their services might be dispensed with.
The Association likewise played . an active part in opposition to the
strike. Werner was freed ' from his regular work and paid at his
contract rate of $45 a week to perform various anti -strike duties.
Although Hemmerich testified that Werner was supposed to spend 8
hours a day at work, no check was kept on him , and the evidence of
several witnesses , including , that of Werner himself , shows that he
spent most of his time in the Association office , in the garage and mill
yard, or in the time office in the plant . He was in charge of passing
cut clubs to the employees going through the picket lines and of
handling complaints . He presided at a meeting held about a month
after the strike began , during ' the course of which he urged those
present to go out and "beat up" the strikers . Employees were 'di-
rected to attend this meeting by their foremen . The Association also
engaged in circulating petitions during the strike, calling for
additional police protection from State and municipal authorities.
During the strike, the Federation called a meeting to be held on
April 4 , 1937, at the Odd Fellows Hall in Reading. A selected group
of non-striking , employees%vas asked to attend this meeting . The em-
ployees were assured that the meeting would be secret and that only,
those with admission cards would be permitted to enter. Before the
meeting was to start, Isaac Witman, foreman of the legging depart-
ment, entered the building and stationed himself at the second floor ,
window above the entrance to the meeting hall. In this position he
could be seen from the street in front of the building but not from the
sidewalk . To enter the building unseen by Witman, it was necessary
for those who attended the meeting to walk close to the building.
28 See footnote 13, above.
BERKSHIRE KNITTING MILLS -985
While Witman was so stationed , two automobiles carrying employees
who wished to attend the meeting drove up in front of the building.
When Witman was observed at the second floor window , the employees
refused- to get out of the automobile and drove off without entering
the hall.
The financial secretary of the Vigilance Lodge of the Odd Fellows
testified , as a witness for the respondent , that Witman had been a
member of the Odd Fellows for 28 years. Witmani himself, how-
ever, was not called upon to explain why lie appeared at the lodge on
the day in question: or why he sat at the window throughout the meet-
ing. In view of the obvious implications of his presence on that par-
ticular occasion , his failure to testify-confirms the inference, and we
find, that Witman was present at the Odd Fellows Hall on April 4,
1937, to keep the'Federation meeting on that date under surveillance
and to discourage attendance thereat.
As note&above , Hemmerich , at the conferences with the, Federation
prior to the strike had voiced the possibility that the respondent would
transfer its operations from Berks County to the South ., In fact,
Hemmerich testified that he frequently spoke not only to the employees
but to representatives of business about - Southern competition, and
that,
I think I succeeded in enlightening a good many people regarding
this danger that exists today and has existed for the last few years.
A month after , the strike started, the respondent made use of the
fear which had thus been created by falsely giving the impression that
it was about to move its operations . It had on hand a large number
of obsolescent machines which had not been used,for 11/2 years. The
machines were torn down and moved from the plant; it was common
knowledge that this activity was taking place. On October 26, 1936,
the respondent issued the following statement :
We are disposing of one hundred machines which are now being
dismantled . More will follow. We deeply regret the necessity for
such drastic action , but there appears to be no other course. At
the same time , we can assure work for those of our employees who
are with us.
We had hoped that our desire to maintain our plant on a basis
satisfactory to the overwhelming majority of our employees would
command ` the approval • of every one s interested in.,the welfare of
the community we have helped to build - up. Without such ap-
proval , we are forced to accept the offer of communities in other
states where our business can be conducted under peaceful con-
ditions.
986- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Much has been said about hosiery manufacturers withdrawing
from Berks County , but so far few have moved their equipment,;
because of the cost of such an undertaking . Under present con-
ditions no hosiery manufacturer in Berks County can look ahead
with confidence . If the public will stand vandalism that has been
practised under the guise of aiding the hosiery industry now, it
will do so , again.
Under these conditions we are compelled to halt our plans for
enlarging and developing our plant in Berks County.
In fact, the respondent at this time was not planning to move 'its
operations , nor was the machinery which was moved set-up anywhere
else. Hemmerich 's only explanation for the issuance of the statement
at this time was that ,the respondent "thought it-was propitious at
that time to make this public statement ." It is clear that the machinery
was moved and the statement issued for the sole purpose of persuading
the employees that, if they assisted the strike and if it was , successful,
they would not have any jobs to return to., The impression thus sought
to be created was fostered by the Association in a leaflet issued about
this time which warned that "the mill will close down or maybe move
down South to avoid all this labor trouble."
Repeated' efforts were made during the strike, by the duly consti-
tuted Federal and State authorities , to bring about its settlement and
termination . The respondent refused at all times to cooperate in these
,efforts. Thus, a few days after the strike began , the respondent was
called upon by Governor Earle of Pennsylvania to discuss the-issues of
the strike . Hemmerich and other officials of the respondent met with
Earle. They_ refused at that time to meet with the Federation repre-
sentatives or to discuss anything but arrangements for protection of
the plant by State police . Subsequently , Hemmerich saw Bashore,
secretary of the Pennsylvania Department of Labor, who again asked
him to meet With the Federation 's representatives . - Hemmerich re-
fused to do so.29 Two representatives of the United States Department
of Labor also appeared at these conferences . Hemmerich' rejected
their efforts to discuss the issues of the strike . He testified at the
hearing as follows :
Q. But to all these requests you refused entirely to discuss the
matter, looking toward the settlement of the strike?
A. That is right.
29 Hemmerich,testified, as.follows,:
Q. Did you go with Mr. Bashore after that conference?
A. Yes, we left that office.
Q. Did you go with Mr Bashore to the Department of Labor?
A. No.,
Q. You left that conference, and you told them that you were not concerned with
any efforts to mediate or conciliate this strike?
A. I think that is correct
BERKSHIRE KNITTING MILLS 987
Q. And then, some time later, Mr. McGrady, the then First
'Assistant Secretary of Labor, United States Department of Labor,
contacted some official of your company, with the view of settling
the strike?,
A. I understand so.
* * * *
Q: After that call from Mr. McGrady's office, did Miss Anna
Weincock visit you at the plant?
A. That is correct; yes. -
Q. And was not that some time in April, 1937?
A. You evidently know the date question' better than I- do.
I told you before I do not know that.
Q. Well, am I substantially correct?
A. I hope so.
Q. And she tried to persuade you or discuss with you and tried
to explore the possibilities of a settlement, if you, would sit, down
with the representatives of the union" with a view of settling the
strike?
A. I think that was the subject she dealt with; yes.
Q. And what was your answer to that?
A. The same as before.
Q. You refused to meet with the union?
A. I showed her the plant, and showed her how nicely every-
thing was performing, and how many people we had engaged
there. We had all we wanted. At that time, there was no
settlement necessary. -
Finally, letters sent to the respondent by the Federation during the
strike were not answered.
4. Conclusions as to the 1936 strike
The facts-recited above reveal a pattern of conduct on the part of
the respondent before and during the 1936 strike designed to hamper
and eventually to extirpate the Federation as a factor among the em-
ployees. The pairer incident, Wentworth's attendance and activity
at the September 12 meeting, Witman's surveillance of the Federation
-meeting, the attempt to create a false impression that the plant was"
about to be moved, and the activity of the respondent's agents during
the strike all constituted illegal acts- of interference:, These -acts, to-
gether with the respondent's continued illegal support and domination
of the Association, present a consistent picture of long standing opposi=
tion to the Federation and a determination to resist its effortsto main- -
tain the position of leadership which it had achieved in 1933.
988 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
We are persuaded' further that the respondent's refusal to meet with
Adams prior to the strike and its enlargement of that refusal, during
the strike, into a rejection of all attempts on the part of the-Federation
and neutral parties to bring about negotiations concerning the- issues of
the strike, were likewise illegal.
Throughout the period under consideration, both before and after
the commencement of the strike, the respondent was dealing with the
Association concerning grievances and placing no limitations on the
personnel of its representations. 'No claim was made during this
period that the Association represented a majority of the employees
and was hence entitled to exclusive, recognition. In fact,'neither the
Federation nor the Association appears to have represented such a
majority. Since they thus stood on equal footing, the respondent, in
keeping with the attitude of neutrality which the Act imposes on
employers, was bound to deal equally with both or neither.30 It could
not legally grant one organization the valuable asset of recognition,'
even for its members only, without granting similar recognition to the.
other.
The respondent's duty to deal with the Federation if it dealt with
the 'Association required it to deal with those representatives which the
Federation chose, without imposing limitations on the Federation's
choice. The refusal to meet with Adams was hence illegal since it was
prompted by the fact that Adams was not an employee and, as Hem-
merich admitted at the hearing, he'preferred "at that particular mo-
ment" to deal with "representatives who were employees of the Berk-
shire." 31 As we have held '32
.. ,. The right of employees, guaranteed 'by the Act, to repre-
sentatives of their own choosing necessarily negatives any 'priv-
ilege on the part of the,employer to place limitations ' upon the
representatives whom the employees are permitted to designate.,
The condition, moreover, operated to the disadvantage of the Federa-
tion, an organization with outside affiliations traditionally represented
by nonemployee spokesmen, and in° favor of the type of organization
represented by the Association.
80 Matter of The Carborundum Company and United Mine Workers of America , District
50, afl'ated with the C. 1' 0, 36 N. L . R B. 710, 731. See also Third Annual Report of the
National Labor Relations Board, p. 116 and cases there cited.
n At the time this incident took place , Henimerich gave as his only reason the fact that
the 1934 contract had been canceled. However, the respondent had dealt with the Federation
for 2 years-after that contract had terminated ' and,had never raised this objection before.
Other reasons later advanced at the hearing by Hemmerich for his refusal to see Adams,
wh'ch were also advanced for the refusal to negotiate during the strike , are discussed below.
22 Matter of Fansteel Metallurgical Corporation and Amalgamated Assocaateon of Iron,
Steel and Tan Workers of North America , Local 66, 5 N L. R. B. 930, 933 , order enforced
In part, 306 U. S 240, reversing in part, 98 F. (2d) 375 (C. C. A.-7). See also N. L. R. B.
V. Bear Brand Hosiery Co .,, decided November 27, 1942, 11 L. R. R. 453 (C. C. A. 7).
BERKSHIRE KNITTING MILLS 989
The existence of the strike did not alter the respondent's duty to
treat the two organizations equally.33 Yet the respondent continued
to deal with the Association during the strike; indeed, it cooperated
closely with that, organization in. its efforts to defeat the strike.- Its
contemporaneous complete refusal to deal with the Federation 'was
hence a manifest act of favoritism, and therefore, constituted illegal
interference with the self-organization and collective activities of its
employees.
Quite apart from the unequal treatment of the Federation and As-
sociation, the respondent's departure from its earlier policy of dealing
with the Federation despite its minority status must be deemed illegal
if it was prompted by a purpose to interfere with the organiza-
tional rights of the employees. We are persuaded that it was
prompted by such a purpose, by an intention to provoke a strike and
to utilize the opportunity thus created to extirpate the Federation as
a factor among its employees.
The respondent's conduct must be viewed in its setting. In 1933,
after its successful strike, the Federation had represented a large ma-
jority of the employees. During the ensuing 3 years, during which
period the Federation had attempted to carry on its activities through
the channels of orderly negotiation, it had been faced with the open
hostility of the respondent, with favoritism to the Association, and
with other unfair labor practices designed to hamper the effective
conduct of its affairs. By September 1936, the situation had become
critical; the Federation had notified the respondent that a strike would
be called unless its economic demands were met and the Federation
permitted to "function effectively." Instead of attempting to prevent
the conflagration which was impending, the respondent provided
further, fuel by choosing that "particular moment" to announce its
refusal, on patently false grounds, to meet with non-employee repre-
sentatives. In addition, when it met with the employee representa-
tives of the Federation, its spokesman; Hemmerich, employed a tech-
nique peculiarly effective with a deputation so limited; namely, ques-
tioning the individual employee members as to their otivn grievances.
Simultaneously, the respondent's creature, the Association, rejected
the Federation's appeals for joint action without which, the Federa
tion warned, it would be forced to "proceed along its own lines."
Thus the respondent was fully aware that the Federation deemed
itself to be in a position in which it could only maintain its existence
by calling astrlke. At that crucial point it chose a line of conduct,
' Is It is well settled that the rights' of employees under the Act are not diminished by
reason of their,, going'on'strike Jeffery-DeWitt Insulator Co. v. N. L. R. B, 91 F. (2d)
134, 138-139 (C C. A 4), cert. denied, 302 U. S 731, N. L R. B. v Reed t Prince Mfg.
Co, 118 F. (2d)'874, 882 (C C. A.'l), cert.,demed, 313 U. S. 595. See also N. L. R. B. v.
Mackay )Radio f Telcgraplt Co , 304'U S. 333, 345
990 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
adhered to likewise by the Association, which could result only in
bringing on the threatened strike. • The implication is clear that its
purpose was to achieve just that result.34
This conclusion is supported by the events which took place during
the strike. Numerous attempts were made, as we have noted, tp bring
about a settlement of the strike. Due to the respondent's rejection
of these attempts, it is impossible to tell on what terms the strike could
have been settled. The one result,Rhowever, which was certain to flow
from such a settlement was the continued existence of the Federation
as a recognized factor among the employees. We conclude that it was'
this result which the respondent wished to avoid. We are led to this
conclusion by the fact that the destruction of Branch 10 was the result
which was most likely to be achieved by the respondent's 'course of
conduct, by the fact that the respondent adopted a policy, when strikers
began to apply for reemployment, of weeding out and refusing to
reinstate active strikers and Federation adherents;35 and by the fact
that no other credible explanation of the respondent's conduct appears.
Hemmerich maintained at the hearing that the chief reason for the
respondent's refusal to participate in settlement negotiations was that
the Federation was "only•very, very minute a factor in the representa-
tion of the Berkshire employees at that time." This explanation is
not persuasive. It assumes that the- respondent was attempting to
treat the strike as non-existent. Yet, the strike was sufficiently strong
to bring about the intervention of the Governor of the State and the
Federal conciliation service. Moreover, the respondent's expenses
during the strike were extremely heavy; after deducting amounts paid
to it under its insurance policies, its expenses came to $62,335.57.
Although willing to'spend these suns, to make broadcasts dealing
with the strike, to agitate for the sending of State p6lice to the plant,
and to allow the president of the Association freedom from work
schedules to combat the Federation, it was unwilling to take those steps
which might have brought about an end to the situation which
prompted those activities. Its conduct in this regard supports rather
than negates the conclusion that its guiding purpose was to bring the
strike to an end in which the Federation played no part.36
34 This is not to say that the respondent was under a duty to yield to the Federation's
economic demands. As Ave point out below, the question of what dispositin might have
been made of the economic issues had the employees been permitted to enjoy their rights
under the Act free of illegal restrictions, is immaterial.
l s, See Section III C 1, below
so Hemmerich asserted as additional reasons for refusing to meet with Adams or,to
negotiate during the strike, the cancelation of the 1934 contract with Rieve and Adams
and the dissemination by ,the Federation of false- statements about the respondent. We
have already noted that the first of these explanations has no rational basis. The second
is also without weight. Hemmerich did not specify in what respects the Federation had
made false statements concerning the respondent' s operations . He was Impelled to admit
at'the hearing that the Federation' s claims concerning the "break-down of standards" were
correct.
BERKSHIRE. KNITTING MILLS _ 991,
The respondent did not, by its refusal to negotiate during the strike,
violate Section-8 (5) of the Act by refusing to bargain collectively
within the meaning of that section. However, acts which in' one con-
text maybe legal, are violative of Section 8 (1) of the Act if prompted
by a purpose to interfere with the' right of employees to select repre-
sentatives and engage in collective activity. The refusal to negotiate
was prompted by such purpose here, a purpose to exclude the Federa-
tion from the field of the employee's choice. For that reason 'and
because1t constituted improper discrimination 'in the treatment of
the two labor organizations existing at the plant, the respondent's
treatment of the Federation's, attempts to negotiate during the strike
was illegal. -
We find that the respondent, by forcing certain of its employees
'to sign a false statement discrediting the Federation, by the activity
of its foreman, Wentworth,-at the September 12 meeting of the Fed-
eration, by the activity of its superintendent, Witman, in keeping a
Federation meeting. under bys-its'threat to move the
operations of its plant elsewhere, by the activity of its agents during
the strike, as described above, by its refusal to meet with Adams
because he was not an employee, and by its refusal to-negotiate with
the Federation or with Federal and State mediators in order to bring
about a settlement of the strike, has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
Th`e coitrpla,int' alleges and the answer-denies ,that the .1936 strike
was caused by unfair labor practices on the part of the respondent.
To this issue we now turn.
The testimony in this case, including that adduced at the resumed
`hearing, .leaves no room for doubt that the aim of Branch 10 during
1936 -was to bring about a reversal of the trend which has been
described as the "breakdown of standards" and to restore, the economic
conditions prevailing in 1933 and called for by the N. R. A. Code. It
was to this send that its activities, including the strike, were directed.
Thus Ammarell testified that if the economic demands of the Federa-
tion had been met, there would have been no strike. 'Other represen-
tatives of the Federation signified their agreement with this statement.
Documents which, outline the strike position of the Federation issued
during the strike period also deal almost exclusively- with economic
1emands.37
"Three -officials of the Federation , Engleliart , Ammarell, and Payne, testified in general
terms that the strike was caused by the respondent 's fostering of the Association , as well
as by ,various alleged',acts' of discrimination . against ,Federation ,members which' had -been
reported to them-but which are not shown by'the record'to have occurred. In arriving at
our conclusion concerning the cause of the strike, we have not relied on-this testimony.
Ammarell also , testified that elimination of the Association was a "goal " of the strike We
agree with the respondent that this testimony has no weight As noted above, we a,sume, for
the purposes of th•s case , that the aim of the Federation in conducting the strike was to
restore certain economic standards
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its brief the respondent relies almost exclusively on the fact that
the only demands served on it by the Federation during the strike
were economic. 'It argues that since a strike is a method of obtaining
concessions from the employer, the, cause of a strike cannot be found
in unfair labor practices which are not made the subject of complaints
to the employer. But, as the respondent itself argues, the goal of a
strike and its cause are not the same thing. The cause of a strike
must be sought not only in the factors which prompted action by the
employees, but in those which prompted them to choose the course of
action upon which they embarked. The fact that the aims of the
Federation4n 1936 were primarily economic is not, therefore, decisive.
Those aims did not have to be pursued through the channels of in-
dustrial warfare. Faced with the "break-down of standards," two
courses were open to the Federation: It could seek the support of the
employees as members and attempt to bargain collectively with the
respondent, or it could resort to its strike weapon. From 1933, when
it represented a majority of the employees, to 1936, when the strike
occurred, the Federation attempted to put into effect the first of these
alternatives. 'Its endeavors were thwarted by the respondent's un-
fair labor practices, and particularly by its domination and support
of the Association. On the very economic issues advanced by the
Federation before and during the strike,, the Association was ranged
on the side of the respondent, supporting its position as against that
of the Federation. The 11.11 bonus, Saturday work, the 51-gauge
contracts, and the multiple machine system, were all vital issues in
the strike; as to each of them, as w'e have described above, the Asso-,
ciation defended the, respondent's departure "from Code standards.'
The Association's part in persuading the employees to accept these
departures cannot be ignored in assessing the causes of the strike. By
'inhibiting the employees from taking collective action on these issues,
the Association impeded the Federation in its efforts to deal with
these matters by negotiation with the employer.
In addition, the very existence of the employer-sponsored and sup-,
ported Association hindered the expression of economic desires on the
part of the employees through freely chosen representatives which the
Act protects. It constituted an obstacle to any legitimate labor or-
ganization, and specifically the Federation, seeking the support of the
employees. The employees were entitled to select representatives
and,the Federation was entitled to seek employee support without'
having to overcome employer-made obstacles. Without than oppor-
tunity to select their own representatives, the employees could not
advance their economic aims by the peaceful methods of collective
bargaining; without, the freely given support of employees, which 'the
respondent's unfair labor practices had the normal effect of inhibiting,
BERKSHIRE KNITTING MILLS 993
the ' Federation could not make full use of the type of bargaining
which the Act is designed to encourage.
That the Association and the respondent's unfair labor practices
constituted an obstacle to the Federation is not a matter of specula-
tion. The Federation at all times recognized that the Association
was supported aild favored by the respondent. Indeed, at the Sep-
tember 26 meeting at which the strike was called, Werner was charged
with a "sell out" and it was announced that "the people around
Werner," the Association president, as well as the management, would
have to be fought. There can be no doubt that the obstruction cre-
ated by respondent's unfair labor practices was a potent factor in
determining the Federation's course of action.
In September 1936, the Federation made a final, vigorous attempt
to gain the support of the employees in pressing its demands. At
that time, the respondent, together with the Association, adopted a
course of action which was clearly intended, as we have found, to
precipitate a strike. The anticipated result followed.
The strike, once begun, was prolonged by the respondent's illegal
refusal to participate in settlement efforts,- as well as by its discrimina-
tory policy as described below in Section III C 1, and its other unfair
labor practices during the strike as described above. These practices
rendered impossible, almost from the inception of the strike,,a speedy
termination of the struggle.
In sum, the respondent's entire course of conduct constituted a de-
nial of the right of its employees to organize and a refusal to accept
the procedure of collective bargaining. As Congress has found,'such
an' iit`titude on the part of the employers tends to cause strikes; it
did so here38 While the "break-down of standards" provided the
motive for collective activity on the part of the Federation and the
respondent's employees, the form which that activity took in October
1936, industrial warfare, was dictated by the respondent's conduct.
It follows, therefore, that the respondent's unfair labor practices
were ,a fundamental cause of the 1936 strike.
This conclusion is not affected by the possibility that in the
absence of unfair labor practices-the Federation would have struck
In Section 1 of the'Act, Congress found that :
The denial by employers of the right of employees to organize and the refusal
by employers to accept the procedure of collective bargaining lead to strikes and other
forms of industrial strife or unrest, . . . ,
In N. L. R. B. v. Jones cC Laug hlin Steel Corp., 301 U. S. 1, 42, the Supreme Court, upholding
this finding on the part of Congress , stated that : .
Experience has abundantly demonstrated that the recognition of the right of em-
ployees to self-organization and to have representatives of their own choosing for the
purpose, of ' collective bargaining is often an 'essential condition of industrial peace.
Refusal to, confer and negotiate has been one of the most , prolific causes of strife.
This is such an outstanding fact in the history of labor disturbances that it is a proper
subject of judicial notice and requires no citation of instances.
604036-43-vol. 46-63
I
994 DECISIONS OF NATIONAL, LABOR 'RELATIONS BOARD
over
- '
economic issues. The guarantees of the Act are designed to
encourage the ironing out 'of economic issues without recourse to
industrial strife. It may not be; assumed that the purposes of the
Act would not have been achieved here had the respondent complied
with the law. More specifically ,, it may not be assumed that the
respondent ^ and its employees , acting through freely chosen repre-
sentatives, would not have ' been able , to arrive at a satisfactory
settlement of all economic questions had the respondent refrained
from, its unfair labor practices prior to and during the strike..: The
Congressional findings ' contained ' in Section 1 of the Act require
rather the opposite conclusion , that the strike was but - the normal
consequence of the respondent 's rejection of the procedure of col-
lective. bargaining.
The conclusion thus required by the Act can be rebutted, if at all,
only by a clear showing that a strike would have resulted even in
the absence of unfair labor practices . Whether such is the case,
however, is a question which here lies in the realm of speculation pre-
cisely ` becaiise of the unfair labor practices for which theorespondent
is answerable . Strictly applicable here is the' language of the Circuit
Court of Appeals for the Second Circuit in N. L. R. R . v. Remington
Rand, Inc., 94 F. (2d) 862, cert . den. 304 U. S. 576, 585:
We have assumed hitherto that the strike here in question was
only for the purpose of enforcing the unio'n 's power to negotiate
for all the men. That is not true; there had been a wage-dispute,
and, the men 's inability to get at the truth of the Elmira business
was another cause. It is of course possible that the parties might
have split over wages, or over the Elmira plant , even 'if the
respondent had negotiated with the Joint Board. , But since the
refusal was at least one, cause of the strike, and was a tort-a
"substraction"-it rested upon the tort feasor to disentangle the
consequences for which it was chargeable from those from which
it was immune. Since it cannot show that the negotiations, if,
undertaken , would have broken down , it ca,nliot say that the loss
of the men's jobs was due to a controversy which the act does
not affect 'to regulate * * * 39
We find that the strike which commenced on October 1, 1936, at
the respondent 's plant was caused and prolonged by the respondent's'
unfair labor practices. -
39 See also Republic Steel Corp v. N. L. R. B , 107•F. (2d ) 472 (C. C.'A. 3 ), enf'g as mod.
9 N. L. R. B 219 , mod. on another point, 311 U S. 7; N. L R. B. V. Stackpole Carbon Co,
105 F. ( 2d) 167 (C. C. A. 3) enf'g as mod . 6 N L R . B. 171„cert. denied, 303 - U ' S 605 ;^
"Great Southern Trucking Co. v. N . L. R B., 127 F. ( 2d) 180, 186 (C. C. A'..,4)-; Matter of"
The Barrett Co. and International Brotherhood of Firemen and Oilers, Local #8, 41
,N. L. R B. 1327 , 1345-1347 . U"' '
BERKSHIRE KNITTING MILLS 995
C. Discrimination with regard to hire and tenure of employment
1. Refusal to reinstate strikers
i
The complaint alleges and the answer denies that the respondent
illegally refused to reinstate 303 named employees who went on
strike in October 1936. Three of these individuals are the employees
whose discharges are discussed below in Section III _C 2. Only 18
of the remaining 300 employees testified at the hearing, and there is
no evidence that any of the other 282 persons named in the complaint
were strikers or that they applied for reinstatement at any time.
The names of these 282 persons are listed in Appendix A. The
complaint will be dismissed as to them. The cases of the 18 employees
who testified may now be considered.
(a) The respondent's general policy toward active strikers
Strikers' began to apply for work as early as January 1937, but
most of them did not apply until September, when the Federation
told its ,members that strike benefits could not be continued much
longer. The strikers were told to attempt to secure reinstatement
but that the strike would continue as to those who were not taken back.
Strike benefits were in fact discontinued in December. -
The respondent hired a large number of employees to take the place
of the strikers between January and August' 1937. It discontinued,
hiring in the latter month, so that by the time the bulk of,the strikers
applied for reinstatement their jobs had been filled. The new em
ployees who were taken on during the first part of 1937 were all
inexperienced.
A refusal on the part of the respondent to reinstate any striker
was illegal if prompted either by the fact that he had-been on strike
or bad been an active, leader of the strike '40 or by the fact that his
job had been'filled by a new employee hired afteil the strike began.41
The record reveals that throughout the period during 1937 when
the respondent was taking on employees it followed a practice of
rejecting active strikers. Immediately prior to the strike, while the
petition in opposition to the strike was being circulated, Werner,
president of the Association, spoke in the seaming department. The
power was turned off and Werner addressed all the employees present.
'ON. L R B V. Mackay Radio /f Telegraph Co , 304 U. S 333, enf'g 1 N L R B 201
41 Since the strike i\as caused by the respondent's untait labor practices as we have found
above , the respondent was required to reinstate strikers upon application, even if such
reinstatement required the displacement of strike' breakers. Matter of McKaiq-Hatch, Inc
and Amalgamated `Association of Iron; Steel and 'Tin Workers of North Ameitca, Local
##1139, 10 N L R B. 33 ; Matter of Black Diamond Steams7up Corp. and -Marine En ii-
•neeia ' Beneflcial Association-, Loeal ##33, 3 N L R B 84, order enforced in Black Dia-
mond Steamship Coip v. N. L. R. B., 94 F. (2d) 875 (C. C. A. 2), cert. denied 304 U. S.
479.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He told them that "those that walk out on strike won't get their jobs
back." In view of Werner's status as president of the company-
dominated Association,a,his statements must be viewed as stemming
'from the respondent and as authoritatively representing the respond-
ent's attitude. Moreover, similar statements were made to individual
employees by foremen at this time and after the strike began.
The respondent further made its position clear during the strike
by sending letters to a, large number of employees, during January
1937, which read as follows: ,
Due to your continued absence from work for the past several
months, we hereby wish to inform you. that we have removed
your name from our pay roll.42
The sending of this type of letter was not in accordance with the
respondent's customary practice,; normally it automatically dropped
from its pay roll employees who were absent without excuse. It is
therefore clear that, this letter had the sole purpose, and effect of
notifying striking employees, that they could no longer be employed
by the respondent. '
Some of the strikers who applied for reinstatement were inter-
viewed by a 'committee of employees who held themselves out as
having the power to decide-whether or not applicants could be
reinstated. The respondent's witnesses did not present any consistent
explanation of how this committee was established or -how it func-
tioned. Arthur, Krummenoehl, of the respondent's employment
office, and General Superintendent Hemmerich testified that the
committee was established because some of the employees objected
to working with strikers who had engaged in violent conduct on the
picket line. No such employees were called on to testify. Krum-
menoehl testified that he permitted the committee to function on
orders from Hemmerich. Hemmerich denied that he had directed
that the committee be, established but admitted that he sanctioned
its activities after it was setup. There was no testimony as to how
the committee was selected and no, direct evidence of the source of its
authority. None of its members was called on to testify at the hear-
ing. It is clear , however, that it acted with the approval of and on
behalf of the respondent. ,
The questions asked by the committee of employees who appeared
before it indicate that it was interested in determining whether or
not applicants for reinstatement had been active on behalf 'of the
strike and still supported the Federation. Hemmerich contended at
the hearing that the committee was not authorized to refuse applicants
'z The respondent , while admitting that letters similar to that quoted above were, sent
to many employees , failed to produce records showing which employees or how many were
zso notified.
BERKSHIRE KNITTING MILLS 997
on any ground other than interference with employees going to and
from work. However, in view of the direct testimony of applicants
concerning the practice of the committee, the absence of direct testi-
mony from committee members as to how they operated, and the fact
that the committee refused to approve the reinstatement of several
employees who are not shown to have engaged in any improper con-
duct, we conclude that in fact the committee's purpose was to weed out
those of the strikers who actively supported the cause of the Fed-
eration.
General Superintendent Hemmerich denied at the hearing that the
respondent had applied a policy of excluding active strikers from
reinstatement. However, while admitting that the respondent's rec-
ords would show which of the reinstated employees had been active
on the picket line, he refused to produce such evidence, and the re-
spondent failed at all times to produce the name'of a single employee
who was reinstated despite such activity: In view of the evidence
detailed above as to the respondent's general policy, and the manner
in which individual applications for reinstatement were handled, as
is described below, we conclude that the respondent, during the period
when it was taking on employees to fill the vacancies left by strikers,
discriminated against active strikers because of their, activity. Such
discrimination was illegal .13
(b)' Treatment of individual applications foh reinstatement
Frank Vecchio began working for the respondent in November 1934.
He went on strike on October 1, 1936. He applied for reinstatemernt
on June 16, 1937, to Witman, superintendent of the legging depart-
ment. When Witman questioned him about his strike activities, Vec-
chio concealed his membership in Branch 10 and his activity on the
picket line. He was told that there was no work for him. He re-
turned a week later and at this time arrangements were made for
him to appear before the employees' committee. Wlien questioned by
the committee, Vecchio stated that he was not a member of the
Federation and that he had not been active on the picket line. - After
his interview, Vecchio was told by Krummenoehl that there was no
work for him because it was summertime, and the season was slack.
Vecchio was never recalled by the respondent.
Valentine Parenti began working for the respondent in September
1934. He was unable-to' enter the plant on October 1, 1936, the first
day of the strike. Thereafter he remained away from, work and even-
tually joined Branch 10 and the picket line. He applied for reinstate-
" See footnote 40, supra. This conclusion is not affected by our finding that the strike
was caused by unfair labor practices.
998 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
ment several' times, starting early -in June 1937. On each occasion lie
was told that there was no work for him. Eventually he was referred
to the committee of employees, before whom his experiences were
similar to those of Vecchio. After his interview had ended he was
told by Krummenoehl simply, that his "story was not satisfactory."
There was no evidence that Vecchio or Parenti engaged in any im-
proper conduct at any time during the strike.,, The only explanations
given to these two employees on the occasions they were refused re-
instatement were false, since the respondent was admittedly hiring
new men at the times they applied. We conclude that Vecchio and
Parenti were refused reinstatement because they actively supported
the 'strike.
Sixteen other employees testified that they applied for and were
refused reinstatement after the .strike 44 Six of these employees were
told that there were no jobs available-and a seventh was told that he
could` not be taken back because he had broken his apprenticeship.
There is no evidence as to what reasons, if any, were,given to the other
applicants. -
Although it appears that 5 of th ese 16 employees pleaded guilty or
were found guilty of misconduct during the strike and were fined or
sentenced to jail, there is no evidence that their misconduct was the
reason for their rejection by the respondent, or, indeed, that the re-
spondent was aware of their misconduct. Two of them were given
other explanations' when they applied, as described above. We are
satisfied that their misconduct had nothing to do with their rejection.
Whether or not it warrants withholding of the remedy of reinstatement
is discussed below.
At the time these employees applied for reinstatement, the respond-
ent had hired a•large number of new, inexperienced workers to take
the place of strikers. It is clear that the applicants were refused rein-
statement either because they had been active strikers or because there
" The names of these employees and the dates on which they applied for reinstatement
are as follows :
Arnold Augustine : Middle of September 1937
Leonard Bittle : Middle of August 1937
-Robert Cramp : Middle of July 1937
Melvin Haas . On or about October 1, 1937
Catherine Hahn : Latter part of September 1937
William Ilartman : September 1937
Richard Himmetberger : September 1937
David Horn : On or about September 21, 1937
Ralph L . Houck No evidence as to date of application
Fiank Kogut ; August or September 1937
Lorna Ludwig : September 1937
Earl Francis Musket : Middle of July 1937
Nicholas Rapino : First half of September 1937
Earl A Spayd September 1937
Bernard Symanoww icz : Middle of October 1937
Edward Thiele • On or about June 1, 1937
BERKSHIRE,, KNITTING MILLS 999
were no jobs available for them. The respondent could have-created
vacancies, however, by discharging strikebreakers. As we have pre-
viously pointed out,15 the respondent was under' a duty to do so; its
failure to reinstate these applicants was therefore illegal.
We find that the'respondent has discriminated in regard to the hire
and tenure of employment of the 18 employees listed in Appendix B,
thereby discouraging membership in Branch 10, and has thereby inter-
fered with, restrained, and coerced-its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. The discriminatory discharges
The complaint alleges and the answer denies that the respondent
terminated the employment of three employees, Eugene Moyer, Frank
Enck, and Ernest Epting, and thereafter refused to reinstate them be-
cause of their membership in and affiliation with Branch 10 and be-
cause they engaged in other concerted activities with other employees.
Eugene Moyer worked for the respondent for a few months in 1931
and from August 1933 until September 29, 1936. Although he was
not a member of Branch 10 at the time, he attended the meeting on
September 26, 1936, at which it was decided to call a strike at the
respondent's plant. At this meeting the wages paid at the plant were
discussed. Moyer participated in the discussion by describing his own
earnings. He was requested to give his name and did so. On the
following working day, September 28, he was discharged by his fore-
man, Keener, before he started to work, on the express ground that
he "was doing too much shooting off about conditions at the mill."
Witman, the department superintendent, confirmed the discharge.
Moyer's testimony concerning the reason given to him for his dis-
charge is unrefuted. There is no testimony on the part of officials
responsible for the discharge explaining the reasons for their action.
We are therefore constrained to hold that Moyer was discharged
because,of his,participation in the September 28 meeting. Such a
discharge was clearly illegal.
Frank Enck and Ernest Epting were employed as bobbin boys in the
respondent's winding department. Neither went on strike, although
Enck had joined Branch 10 in 1933. Prior to Christmas 1936, these
two employees tookfup a collection during working hours for a Christ-
mas present to Albert Ruth, a bobbin boy who had gone on strike.
On December 31,_ they were discharged by their foreman,, -Schware,
who.told,Epting-that he "was discharged for collecting money for the
striker, because [his] actions seemed to appear as if [he] would further
the cause of the strike." A similar explanation was given to Enck.
11 See footnote 41, supra.
1000 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
It appears that the taking of collections during working hours was
a common practice and that Enck and Epting had taken a collection
for a Christmas present to their foreman just before they collected
for the striker. They were not discharged for this action, although it
came to the attention of at least one foreman from whom funds were
solicited.
While the testimony of Enck and Epting shows that they had both,
on various occasions, been reprimanded for inattention to their duties,
there is no testimony tending to show that they were discharged for
that reason. No official responsible for the discharges was called on
to testify at the hearing. We are therefore required to find that the
employees were discharged not because they violated any rules, but
because their activity took the particular form of, assisting a striker.
Schware's statement to Epting leaves no room for doubt on that score.
The discharges thus served notice on the employees that activity which
appeared to assist the cause of the strike would not be tolerated.. The
discharges were therefore illegal. ,
We find that•the respondent discharged Eugene Moyer,on September
28, 1936, and Frank Enck and Ernest Epting on or about December 31,
1936, because they gave support to other employees engaged in con-
certed action for the purpose of mutual aid and protection and for the
purpose of collective bargaining. The respondent thereby discour-
aged membership in Branch 10 by,discrimination in regard to the hire
and tenure of employment and thereby interfered with, restrained, and
coerced its employees in the'exercise of the rights guaranteed in Section
7 of the At.
IV. THE EFFECT OF THE'UNFAIR LABOR PRACTICES UPON "COMMERCE
The activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the respondent de-
scribed 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.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease ' and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act.
We have found that the respondent dominated and interfered with
the administration of the Association and contributed support to it
after the effective date of the Act. By such domination, interference,
BERKSHIRE KNITTING MILLS 1001
and support; the respondent has prevented the free exercise by its
employees of their right to self-organization and to collective bargain-
ing. 'In order to remedy the respondent's unlawful conduct and
secure to'the employees the full measure of their rights guaranteed
under the Act, we shall order that the respondent withdraw all recog-
nition' from the ' Association as representative of its employees, for
the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, and completely disestablish it as such
representative.
We have also found that thei contract entered into in January 1934
between the respondent and two of its employees, Fritz and Schoener,
was treated by the parties as a contract with the Association, and, at
the time of the hearing, was treated as being still in effect-by virtue of
its automatic renewal provisions. This' contract may still be in
effect. We shall order the respondent to cease and desist from giving
any effect to the contract of January 12, 1934, or to any extension,
renewal, modification, or supplement thereof, or to any superseding
contract which may now be in force, or to any contract with the Asso-
ciation which may now be in force. Nothing in this decision and order
shall be taken to require the respondent to vary any' non-discrim-
inatory wage, seniority, or other substantive feature of its relations
with the employees themselves which the respondent has established
in performance of the invalid contract as extended, renewed, modified,
supplemented, or superseded, or in performance of any contract with
the Association.
Our findings that the respondent has discriminated with regard to
the hire and tenure of employment and that the 1936 strike was caused
and prolonged by'unfair labor practices on the part of the respondent
raise the question of the reinstatement of the affected employees. In
this connection, the respondent contends that this normal remedy
should be withheld in some or all cases because of the violence which
took place during the strike.
A's stated above, the strike of 1936 was accompanied by extensive
violence and illegal conduct. The record does not disclose the identity
of those guilty of destruction of property and injury to persons. We
may not assume that this conduct.was engaged in by any of those
employees whom we herein order reinstated,. nor' may we charge the
latter with the illegal conduct of the unknown persons, even if it were
shown that they were also strikers. As we have previously held '46
Acts which some strikers may have committed during a strike
do not disqualify the other strikers from reinstatement. The
4E Matter of El Paso Electric Company, a corporation and Local anion 585, International
Brotherhood of Electrical, Workers, et at., 13 N. L . R. B. 213, order enforced in this respect
119 P . ( 2d) 581 ( C. C. A. 5).
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Norris-LaGuardia Act provides that no member of an organiza-
tion participating in a labor dispute shall be held responsible in
any court of the United States for the unlawful acts,of individual
members except upon: clear proof of actual participation in, ,or,
actual authorization of such acts, or of ratification of such acts
-after-actual knowledge thereof. We are of the opinion that the
Board should be guided by this policy.
Were we to decide otherwise, the respondent's unfair labor prac-
tices would be left unrestrained, the resultant obstruction to commerce
would not be removed, and the employees of the respondent, including
those who are not members of the Federation, would remain unpro-
tected. Such a result would be to subordinate the public interest in
the suppression of unfair labor practices, and to treat proceedings
,under the Act as though they served no purpose other than the vindica-
tion of the private rights of the charging union, which is not an "actor
in the proceeding." 41 The respondent's argument; 'ii this connection
completely overlooks the fact that the Board's remedial order is de-
signed, in the public interest, not merely to free the Federation from
the restraints placed on it by the respondent, but primarily to enable
all of the respondent's employees freely,to select the bargaining agency
of their own choice. 'Certainly all of the employees should not be
deprived of the benefits of the Act because certain undisclosed ones
forfeited their rights. To sustain [the respondent's]' contentions
would, in effect, produce such a result." 48
The record does disclose; however, that 157 named persons were con-
victed of or pleaded guilty to various crimes and offenses during the
strike in the boroughs of Wyomissing and West Reading: While in
most cases there is no affirmative evidence that, the persons involved
were strikers, we are satisfied that the record sufficiently raises the
question, of whether the conduct of which they were found guilty pre-
cludes reinstatement.
The 157 persons named as offenders were convicted of or pleaded
guilty to 168 offenses. One hundred forty five of these offenses con-
sisted of lie-down picketing, for which all but 1 of those involved were
charged with. violation of borough ordinances. Twenty-one convic-
tions were reversed in effect in habeas corpus -proceedings. The re-
maining 124 resulted in fines of $10 and sentences of 30 days in jail
in defaut of payment. Of the remaining 22 convictions,,7 were for_
disorderly conduct. One of the 7 offenders was fined $25 and theother
6 were fined $10. The remaining 15 convictions involved 14 persons,
charged with assault and battery, inciting to riot, rout and riot, un-
47 Amalgamated Utility Workers v . Consohdated Edison Co , 309 U. S. 261 , 264-265.
48 Steuart Die Casting Corp. v. N. L. R. B., 114 F. ( 2d) 849, 856 (C. C. A.,7), ceit. denied,
312;'U. S. 680
BERKSHIRE KNITTING' MILLS 1003
lawful assembly, resisting arrest, and malicious mischief to highways.
In the latter case, the offender was fined $25 for "throwing nails and
tacks in street." In the other cases, -2 were fined $25 and sentenced to
30 days to 1 year in jail; 1 was sentenced to-60 days in jail and fined
an unspecified amount; 3 were fined $50 and placed on probation for
1 year; 1 was fined $25 and placed on probation for 1 year; 2-were
fined costs and placed on probation for 1 year; 3 were fined $25 and 1
was fined costs.,
The record does not show the exact nature of the conduct with
which the offenders were charged in the above cases. In many cases,
the only indication of the seriousness of the offenses is the brief tech-
nical summary of - the crime charged in the official reports and the
sentences imposed.
We conclude that in the cases of the man who received a 60-day
sentence, the two men who were fined $25 and sentenced to 30 days
to 1 year,in'jail,'and the three men who were fined $50, and placed on
probation for 1 year, reinstatement with back pay is not warranted.
The names of these six men appear in Appendix D. In the other cases,
upon the entire record, we conclude that the offenses described above
were not of so serious a nature as to warrant withholding the normal
remedy of reinstatement. The record does not show that the offenses`
were of so serious a nature as to render the convicted persons unfit for
employment 49 The misconduct in question grew out of a labor dis-
pute caused and prolonged by the respondent's unfair labor practices,
and accompanied by much violence on both sides. We have repeat-
edly held that in cases involving strikes caused by unfair labor
practices, the purposes of the Act will be best effectuated by ordering
reinstatement of strikers and thereby restoring the status quo which
was disturbed by the employer's conduct. The basic considerations
which underlie this policy are not, overborne by the relatively minor
offenses which were here punished by, the civil authorities. The public
49 In Republic Steel Corp. v. N. L. R. B., 107 F. (2d) 472, 479 (C. C. A. 3), reversed in
other respects 311 U. S. 7, the Court said :
We think it must be conceded , however, that some disorder is unfortunately quite
usual in any extensive or long drawn out strike. A strike is essentially a battle "caged
with economic weapons. Engaged in it are human beings whose feelings are stirred
to the depths . Rising passions call forth hot words . Hot words lead to blows on the
picket line. The transformation from economic to physical combat by'those engaged
in the contest is difficult to prevent even when cool heads direct the fight. Violence
of this nature, hoccever much it is to be regretted, must have been in the contempla-
tion of the Congress when it provided in Sec. 13 of the Act that nothing therein
should be construed so as to interfere with or impede or diminish in any way the
right to strike. If this were not so the rights afforded to employees by the Act would
be indeed illusory. We accordingly recently held that it was not intended,by the
Act that ' niinor disorders of this nature should , deprive,a ,striker of the possibility of
reinstatement . National Labor Relations Board v. Stackpole Carbon Co ., supra, [105
F. (2d) 167 (C. C. A. 3)]
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
policies incorporated in the ordinances and statutes violated by the
offenders have been fully enforced by the penalties imposed, and
there is no reason to believe that further sanctions are necessary to
the future preservation of public order. . On the contrary, the public
policies of both the Federal and States Governments will best be
served by full restoration of the situation which would have existed
but for the respondent's unfair labor practices and the results thereof.
Without in any way approving of or condoning the illegal conduct
shown to have occurred, we conclude and find that the purposes and
policies of the Act will best be served by ordering reinstatement of
the persons described above, with the exception of those named in
Appendix D, irrespective of any illegal conduct on their part which
this record discloses. The discussion below of the reinstatement of,
and the payment of back pay to, striking employees shall not be deemed
applicable to the six men listed in Appendix D.
We have found that the respondent discriminatorily discharged the
employees listed in Appendix C and discriminatorily refused to rein-
state the employees listed in Appendix B because they engaged in
concerted activities for the purpose of mutual aid and protection and
for the purpose of collective bargaining. In order to effectuate the
purposes and policies of the Act, we will order that the respondent offer
to the employees listed in Appendices B and C full and immediate
reinstatement to their former or substantially equivalent positions and
that it make whole the said employees for any loss of pay they may
have suffered by reason of the respondent's discrimination against
them, by payment to each of them of a sum equal to the amount
which he normally would have earned as wages from the date of the
discrimination against him to the date of the respondent's offer of re-
instatement, less his net earnings 50 during said period.
We have found that the strike which commenced at the respondent's
plant on October 1, 1936, was caused and prolonged by the respond-
ent's unfair labor practices. In order to restore the status quo before
the strike, we shall order the respondent (1) to offer reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, to those employees
who went on strike on October 1, 1936, or thereafter, and who have
applied for and who have not been offered reinstatement, and (2)
upon application, to offer reinstatement to their former or. substan-
tially equivalent positions, without prejudice to their seniority and
w 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 Amerioay
Lumber and Sawmill Workers Union, Local 2590. 8 N. L. it. B. 440.
BERKSHIRE KNITTING MILLS 1005
other rights and privileges, to those employees who went on strike on
said date, or thereafter, and who have not previously applied for
reinstatement.
The reinstatement of employees in categories (1) and (2) above, and
of the employees listed in Appendices B and C, shall be effected by
dismissing, if necessary, any persons hired by the respondent after
October 1, 1936, the date of the strike, and not in the employ of the
respondent on said date. If thereupon, despite such reduction in
force, there is not sufficient employment immediately available for the
remaining employees, including those employees who are to be offered
reinstatement, all available positions shall be distributed among such
employees without discrimination against any employee because of
his union affiliation or concerted activities, following such a system
of seniority or other non-discriminatory practice' to such extent as
has heretofore been applied in the conduct of the respondent's busi=
ness. Those employees, if any, remaining after such distribution, for
whom'no employment is immediately available, shall'be'placed upon
a preferential list and offered employment in their former or substan-
tially equivalent positions, as such employment becomes available and
before other persons are hired for such work, in accordance with such
system of seniority or other non-discriminatory practice as has here-
tofore been followed by the respondent.
The respondent's employees, when hired, signed contracts which
required them to give 2 weeks' notice in case they intended to leave the
respondent's employ, and to make arrangements with the foreman of
their department whenever they knew they would be absent, or, if
unable to make such arrangements, to notify the mill of their absence
without delay. The respondent contends that these contracts' are
valid, that the Board may not limit the respondent's right to discharge
an employee because of a breach thereof, and that the Board's order
should direct reinstatement only of the employees who complied with
the contract. We reject this contention. In the first place, the con-
tracts did not provide for the automatic termination- of the employ-
ment of employees who failed to abide by, them. They provided only
that a violation "shall subject the offender" to discharge. The record
does not show which, if any, strikers, were in fact discharged because
of failure to give the respondent notice that they'intended to be absent
from the mill. In the second place, we are satisfied that the clauses
of the contract described above did not, and were not intended to,
apply to employees leaving their jobs to go on strike. Such employees
were clearly not "leaving the employ of" the respondent, and hence,
were not required, to give the specified 2 weeks' notice. The clause
which required notice in case of absence was manifestly designed to
apply only to intermittent and occasional absences' on the part of the
1006 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
individual employees and not to apply to a strike, a publicized mass
departure from work. A contrary construction would mean that the
clause in fact impeded the right to strike. Such a clause would be
illegal if included in individual contracts the signing of which was a
condition of employment. Finally, since the strikers left their jobs
because of the respondent's unfair labor practices, and since, as we
have found, reinstatement of the strikers is necessary to undo the
effects of those practices, we conclude that the normal remedy should
not be withheld because the strikers may have committed violations
of employment contracts which could have subjected them to dis-
missal. •
We shall order the respondent to make whole those employees who
went on strike on October 1, 1936, ,or thereafter, and who have applied
for and have been refused reinstatement, for any loss . of pay they
may have suffered by reason of- the, respondent's refusal, if any, to
reinstate them, as provided above, by'payment to each of them of a
sum of money equal to that which he would normally have earned
as wages during the period from five (5) days after the date on which
he applied for reinstatement to the date of the respondent's offer of
reinstatement or placement upon a preferential list, less his net earn-
ings,51 if any, during such period. We shall also order, the respond-
ent to make whole those employees who went out on strike on October
1, 1936, or thereafter, and who have not previously applied for rein-
statement for any loss of pay they may suffer by reason of the
respondent's refusal, if any, to reinstate them, as provided above, by
payment to each of them of a sum of money equal to that which he
would normally, have earned as wages during the period from 'five
(5) days after the date on which he applies for reinstatement to the
date of the respondent's offer of reinstatement or placement on a
preferential list, less his net earnings,52 if any, during such period.
We have considered the respondent's earnestly presented contention
that because of the lapse of time since the institution of these pro-
ceedings, back pay,should be ordered only for the period subsequent
to the Board's order. We conclude that this contention must be
rejected. The lapse of time "does not warrant shifting the burden
.to the employee[s]." 53 As we said in Matter of Cowell Portland
Cement Co., 40 N. L. R. -B. 652, 703:
The respondent has been legally chargable with knowledge of its
commission of the unfair labor practices above -found, and has at
all times since the service 'of the original complaint been on
61 See footnote 50, supra. '
52 See footnote 50, supra. - ` ,
•53 Overnight Motor Transportation Co. v. A1tssell, 316 U. S. 572, 583 ; N. L. R. B. v. Elec-
tric Vacuum Cleaner Co., 315 U. S. 685, 698.
BERKSHIRE KNITTING MILLS -1007
notice of the precise claims made on behalf of the Government.
Although it had then and has had at all subsequent times the'
-power to stop the accumulation of back pay by reinstating the
discriminatorily discharged employees, the respondent chose even
after receipt of such notice to continue upon its preconceived
illegal course of 'action . . . The employees have been powerless
to 'expedite the administrative process which they promptly
invoked against the respondent's intransigent opposition to the
Act. 'Under such circumstances we are of the opinion that
effectuation of the policies of- the Act requires that our order
,restore,to these employees, as nearly as possible, the full amount
of the losses which they have suffered by reason of the respond-
ent's violation of their rights to self-organization and to collec-
tive bargaining through representatives of their own choosiiig.
The respondent further contends that the Board may not direct the
reinstatement of any person not specifically named in the complaint,
since the respondent has not had opportunity to introduce evidence
with respect to the earnings, employment, and possible conduct con-
stituting a bar to reinstatement of such persons. Such questions, to
the extent that they are relevant to the issue of compliance with the
Boa'rd's remedial order, may be explored after the scope and validity
of that order have been determined. This type of order is customary
in cases involving unfair labor practice strikes and its validity is es-
takllished.'4 Furthermore, the respondent had opportunity to present
-evidence with respect to its striking employees, since it-could have
' asce'rtained'their- ides tity by examining its own employment records,
which were under its exclusive control. It did not attempt to do so.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Boardmakes the following :
CONCLUSIONS OF.LAW
1. American Federation of Hosiery Workers, Branch #10 thereof,
and `Berkshire Division thereof, and Berkshire Employees Association,
Inc., of the Berkshire Knitting Mills are labor organizations, within
the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the administration of the
Association and contributing support to it, the respondent has en-
gaged in and is engaging in unfair labor practices, within the meaning
of Section 8 (2) of the Act.
3. By discriminating 'in regard to the hire and tenure of employ-
ineht of the employees named in Appendices B and C, thereby dis-
See, for..example ,, Rep'asblac -Steel Corp . v. N. L. R B, 107 F (2d) -472,,478'(C C A 3),
reversed in other respects , 311 U S. 7; Stewa ,t Die Ca,ting Corp. v N. L. R B., 114 F (2d)
849,806 (C. C. A. 7), cert. denied ,'312 U.S. 680.
'1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
couraging membership in or affiliation with American Federation' of
Hosiery Workers and Branch 10 and Berkshire Division thereof, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8, (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (17) of
the Act.
6. The respondent, by failing to reinstate the employees, named
in Appendix A, has not engaged in unfair labor practices, 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 respond-
ent, Berkshire Knitting Mills, its officers, agents, successors, and as-
signs shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Berk-
shire Employees Association, Inc., ,of the Berkshire Knitting Mills, or
with the administration of any other labor organization of its em-
ployees,,and from contributing support to the said labor organization,
or to,any other labor organization of its employees;
(b) Giving effect to the contract of January 12, 1934, with Merritt
H. Schoener and Leroy Fritz, or to any extension, renewal, modifica-
tion, or supplement thereof, or to any superseding contract which may
,now be in force, or to any contract with the Association which may
now be in force,;
(c) Discouraging membership in American Federation of Hosiery
Workers, or Branch 10, or Berkshire Division thereof, or any other
labor organization of its employees, by discharging 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 terms or condi-
tions of employment;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain• collectively through-•rep=
resentatives of their own choosing, and to engage in concerted activ-
ity for the purposes of collective bargaining or other 'mutual aid or
protection, as guaranteed in Section 7 of the, Act.
BERKSHIRE KNITTING MILLS -1009
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Berkshire Employees Associa-
tion, Inc., of the Berkshire Knitting Mills as representative of any
of its employees' for the purpose of dealing with the respondent con-
cerning grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or other conditions of employment, and completely dis-
establish the said Association as such representative;
(b) Offer to the employees listed in Appendices B and C, and to
those employees who went on strike on October 1, 1936, or thereafter,
and who have applied for and have been refused reinstatement, and,
upon application, offer to those employees who went out on strike on
October 1, 1936, or thereafter, and who have not previously applied
for reinstatement, immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their senior-
ity and other rights and privileges, in the manner set forth in the
section entitled "The remedy" above, placing those employees for
whom employment 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; provided,
however, that the provisions of this paragraph shall not be deemed
applicable to those whose names appear in Appendix D;
(c) Make whole the employees listed in Appendix C for any loss
of pay they have suffered by reason of the respondent's discriminatory
acts, by payment to each, of them, respectively, of a sum of money
equal to that which each would normally have earned as wages during
the period from the date of his discharge to the date of the respond-
ent's offer of reinstatement, or placement upon a preferential list, re-
quired by paragraph (b) above, less his net earnings during said
period ;
(d) Make whole the employees listed in Appendix B for any loss
of pay that they have ;suffered by respondent's discriminatory acts,
by,paynient to each of them of a sum of money equal to that which he
would have earned as wages during the period from the date of the
respondent's refusal to reinstate him to the date of the respondent's
offer of reinstatement, or placement upon a preferential list, required
by paragraph (b) above, less his net earnings-during said period;
(e) Make whole the other employees ordered to be offered rein-
statement, who applied for and were refused reinstatement by the
respondent after October 1, 1936, for any loss of pay they 'have suffered
by reason of the respondent's refusal to reinstate then by payment to
each of them, respectively, of a sum, of money equal to that which he
would have earned as wages during the period from the date of the
respondent's refusal to reinstate him to the date of the respondent's
504086-43-vol 46-64
1010 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
offer of reinstatement, or placement upon a preferential list, required
by paragraph (b) above, less his net earnings during said period; pro-
provisions of, this paragraph shall not bevided, however, that the,,
deemed applicable to those whose names appear in Appendix D;
(f) Make whole the other employees ordered to be offered rein-
statement, and who have not applied for reinstatement, for any loss of
pay they may have suffered by reason of the respondent's refusal to
reinstate them, upon application, following the issuance of this Order,
by payment to each of them, respectively, of a sum of money equal
to that which- each would normally have earned as wages during the
period from five (5) days after, the date of such application for rein-
.statement-to the date of the offer of employment or placement upon a
preferential list, required by paragraph (b) above, less his net earnings
during said period; provided, however, that the provisions of this
paragraph shall not be deemed applicable' to those whose names appear
in Appendix'D;
(g) Post immediately in conspicuous places throughout its plant,
and maintain for a period of sixty (60) consecutive days- from -the
date of such posting, notices to its employees stating (1) that the
'respondent will not engage in the conduct from which it is ordered to
cease and, desist in paragraphs 1 (a), (b), (c), and (d) of,this,Order
and (2) that it will take the affirmative action set forth in paragraphs
2 (a), (b), (c), (d), (e), and (f) or this Order and (3) that the re-
spondent's employees are free to become or remain members of Amer-
ican Federation of Hosiery Workers, or- Branch 10, or Berkshire
Division thereof, and that the respondent will not discriminate against
any employee because of'membership 'in or activity in' behalf of those
organizations;
(h) Notify the Regional Director for the Fourth Region in writing
within ten (10) days from the (late of this Order what steps the re-
spondent has taken to comply herewith;
AND IT IS FURTHER ORDERED that the allegations of the complaint that
tl e,respondent has ; discriminated; in: regard- to the'hire and-tenureof
employment of the individuals named in Appendix A.,be, and they
hereby are, dismissed.
APPENDIX • A
Achenbach, Maryjane
Adams Melvin
Adams, Nelson
Adams, Woodrow
Allison, Rena
Ammarell, Luther
Anastasio, Sebastian
Arnold, George
Augustine, Mrs. Lillian
Augustine, Louis
Barth, Luther
Bednar, Andrew
BERKSHIRE KNITTING MILLS 1011
Bednar, Michael
Bendel, Catherine
Benevit. Kathryn
Bennethum; Leonard
Bingaman,Warren
Blatt, Raymond
Blattler, Alfred
Blimline, Dorothy
Blimline, Earl
Bogdanski, Stanley
Bohanak, Joseph
Bohanak, Mary
Bohanak, Steffie
Bonte, Fred
Borawski, Helen
Bower, Ruth
Bross, Joseph
Bross, Joseph
Brown, Ruth
Burkey, Charles
Capiotes, `William
Carl, John
' Chelius. Paul
Chirieleison, Frank
Chirieleison, Thomas
Churan, Stevan
Coleman, Allen
Cremer, Gustav
Crupi, Joseph
Cummings, Leon
Davis, John
DeAngelis, Woodrow
Deeds, Bernard
Delewski, "Ed.
Demario, Joseph
Denatala, Fannie
Didyoung, Ruth
Dietrich, Calvin
Dietrich, Charles
Distasio, John"
'Dmochowski, Walter
Eberly,John
Eberly, 'Kathryn
Ecks, George "
Ely, Irene .
Farino, Jerome
Faust, Eleanor
Feyrer, Fred
Filak, Anthony
Filak, Joseph
Filak, William
Firestone, Hazel
Fisher, Ruth
Flickinger, John
Ford, Mrs. Annetta
Franckdwiak, Florence
Frank, Albert
Frederick, Dorothy M.
Fry, Carol
Gale, Nicky
Garipoli, Fannie
Garipoli, Francis
Garman, Luther
Garrett, Lee
Gaspar:, Emidio
Gawrys, Cecilia
Gegenheimer, LeRoy
Geiss, John
Gift, Paul
Gilbert, Hilda
Ginder. Charles
Godek, Louis
Graeff, Elmer
Graeff, Sarah
Grant, Francis
Gray, Andrew
Green, Raymond
Groewski, Max
Groff, Earl
Hare, Robert
Hamaker, Robert
Hammond, Leo
Hartranft, Wm.
Hartenstine, Katie,
Hartman, Paul
Hawk, Edward
Hawman, Richard'
Hepner, Emma
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hertzog, George
Herring, Laura
Hilbert, Lester
Hill, James
Hill, John
Himmelman , Robert
Hindenach, John
Hindenach, Maynard
Hindenach, Wm.
Hinkel, Harry
Hoffman, Wm. Brooke
Holl, Harold
Horst, Earl
Houser, Charles
Howe, Joseph
Howe, Mrs. Dorothy
Hoyer, Earl
Humma, Verna G.
Humma, Warren
Hummel , Grace ti
Hunt, Harry
Inro, Dominic
Jacobs, Mertis
Janiszewski, Frank
Jasinski, Stanley
Johnson, George
Johnston, Edward
Kaucher, Florence
Kaufman, Harry
Kazmierczak, Al
Keenan, Robert
Keener, Charles
Kelchner, Eli
Kelley, Leroy
Kemmerer,. Walter
Keppley, ^El wood
Kerber, Louis
Kirkland, Mildred (nee
Myers)
Kline, Lester
Kline, Ralph
Klinikowski, Edward
Knoll, Paul
Kramer , Roberta _
Kremer, Jack
Krizon, Anthony
Kruk, Helen
Kuntz, Walter
Kusior, John
Kwittkowski, John
Latshaw, Burris
Lawrence, Edward
Lebo, Wm.
Lewis, Nick
Light, George
Lorah, Carl
Lucas, John
Luksie, Sophia
Machrina, Tony
Malpede, John
Marderness. Isaac
Marks, George
Marnelli, Nick
Marnelli, Peter
Martin, Frank
Masal, Anna
McCarraher, Donald
McClatchie, Hazel
Megno, Mariano
Mehosky, Augustas
Menet, John
Menet, Stanley
Miller, Franklin
Miller, James E.
Moffa, Charles
Moyer, Mrs. Ruth
Naus, Charles
Neeb, Charles
Newman, Francis
Noll, Russel' '
Palange, Joseph*
Palmer , Walter
Pasco, Catherine
Paynter, Mariam
Pearson, Lee '
Pelligrino, Frank
Petro, Francis'
Petro , George
1
BERKSHIRE 'KNITTING MILLS
Petrowski ,- Stanley
Pigeon , Wilbur
Potteiger , Hattie
Radka, Frank
Rapino, Louis'
Rapp, Harry
Ray, Beatrice
Redcay, Stanley
Remley, Meade
Resch, James
Rhoads, Bernard
Rhoads, Donald
Richardson, John
Ringler, Forrest
Ringler, Steward
Ritter, Henry
Ross, Joseph
Royer, Ernest
Rusnak, Anna
Ruth, Paul
Sacco, Matthew
Sands, Wayne
Santispirt, Joseph
Schaich, Fern
Scherba, Michael
Scherl, Joseph
Schultz , Stewart
Seiling, Elwood
Sekulski, Florence
Sekulski, Paul
Shifliet, Edith
Shipe, Wayne
Shuker, Loretta
Simmonds, Robert
Smith, Robert
Snow, Mrs. Mildred
Snyder , Ronald
Soltis, Edmund
Soltis, John
-Soltyski, Matthew
Spangler, Earl,
Spangler, Leroy
Spayd, Paul
i
1013
Springer, Emily
Sroka, Wanda
Stacherski, Anthony
Steely, Leroy
Steffe, Edwin
Stober, Edgar
Stoudt, Wayne
Street, Albert
Street, Mrs. Kathryn
Strouse, Harry
Strunk, Arlington
Stuber, John
Sukije, Anna
Sweitzer, Lester
Talarico, Michael
Talarico, Samuel
Terenchin, Theo
Thiele, Ruth
Thomas, Gilbert '
Tilini, Peter
Tobias, Paul
Toth, Alex
Toth, Helen
Toth, John
Toth, Wm.
Trautman, Harold
Ustaszewski, John
Ustaszewski, Walter
Vargo, John
Victor, Steffie
Vollmer, Fred
Volutza, Orlando
Wasik, Walter
Wawrzyniak, Walter
Weinhold, Paul
Weitzel, Margaret
Wells, Larry
Wetzel, Clarence
Weaver, Wm.
Weyman, Hazel Graham
Wright, Harold
Young, Charles ' _
1014 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
Zeiber, Charles
Zeiber, Raymond
Zeller, Earl
Zellers, Lewis
Zellers, Ralph
Augustine , Arnold
Bittle, Leonard
Cramp, Robert
Haas , Melvin
Hahn, Catherine
Hartman, `Vm.
Himmelberger , Richard
Horn, David
Houck, Ralph
Enck, Frank
Epting, Ernest
Adams,,Melvin
Bohanek, Joseph
Gerber, Irwin
Zerbe, Edward
Ziolkowski, Sylvester
Zocco, Benny
Zocco, Louis
Zocco, Philip
APPENDIX B
Kogut, Frank
Ludwig, Lorna
Musket, Earl
Parenti, Valentine
Rapino, Nicholas
Spayd, Earl
Symanowicz, Bernard
Thiele, Edward
Vecchio-Frank,
APPENDIX C
Moyer, Eugene
APPENDIX D
Hindenach, Maynard
Leone, Joe .
Talarico , Samuel