Berkshire Knitting Mills

National Labor Relations Board - Board Decisions

Nov 3, 1939

17 N.L.R.B. 239 (N.L.R.B. 1939)

In the Matter of BERKSHIRE KNITTING MILLS and AMERICAN FaDERs-
TION OF HOSIERY Woincnns , BRANCH #10
Case No. C-385.-Decided November 3, 1939
TVomen's Full-Fashioned Silk Hosiery Manufacturing Industry-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 ; attempts to discredit union through company-dominated
union ; threats to remove operations from vicinity-Cornmany-Dominated Labor
Organization: background : prior to passage of Act respondent attempted to
create company-dominated employee representation plan ; respondent engaged
in other conduct with reference to employees' association which was continued
after effective date of Act ; after July 5, 1.935: support of association : use of
company premises by association for meeting place, office, and storage place;
refusal to accord similar privileges to union; held to be support of association
even in absence of such refusal ; such use not justified by company rule limit-
ing use of premises to organizations restricted to employees and without out-
side affiliation ; open solicitation in plant of membership in association, par-
ticularly in department through which apprentices must be promoted ; distribu-
tion of association leaflets in plant and during hours without pay deduction ;
evidence of employer domination : absence of dues; low attendance at meetings
indicating lack of interest among large paper membership ; support of interests
of employer even when these conflict with interests of employees ; lack of
protest at departure from terms of contract between respondent and repre-
sentatives of association ; respondent's control over officers of association because
of provision that membership terminates upon discharge ; respondent ordered
to disestablish association-Contract: with representatives of association ; re-
spondent ordered to cease giving effect-Strike: resorted to by union because
respondent's unfair labor practices prevented adoption of other methods of
resolving economic issues ; prolonged. by unfair labor practices-Discharges:
of one employee because of participation in union meeting, although not a
member of union ; of two employees for taking up a collection for striking em-
ployee, although collections for other employees permitted-Refusals to Rein-
state: charges of sustained as to 18 employees because of respondent's duty to
reinstate striking employees and fact that either there were vacancies or
vacancies had been filled by new employees ; charges of dismissed as to 282
employees because of_ absence of evidence that they applied for reinstatement-
Reinstatement Ordered; Positions for Which "Qualified": of employees dis-
criminated against and of striking employees, to former or substantially equiva-
lent positions or, if such positions not available, to other positions for which
they may be qualified, discharging, if necessary, persons hired after commence-
ment of strike ; convictions for minor{ offenses growing out of picket line not
grounds for refusal of-Preferential List for Those Not. Reinstated or Who
Receive Positions for Which "Qualified": those for whom employment not im-
17 N. L. It. B., No. 17.
239
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediately available , and those reinstated not to former or substantially equiv-
alent positions but to positions for which qualified, placed on preferential list
to be followed in future reinstatement to former or substantially equivalent
positions-Back Pay: awarded ( 1) to employees discriminated against from
date of discrimination , ( 2) to striking employees who applied for reinstate-
ment and were refused, from date of refusal , ( 3) to striking employees who
did not apply for reinstatement , from five days after date of Board Order ;
union relief payments not considered as earnings-Procedure : allegation in
answer to complaint that charge was not filed in good faith does not raise
substantial issue.
Mr. Samuel G . Zack and Mr . Bernard Bralove, for the Board.
Mr. Wellington M. Bertolet and Mr. Frederick J. Bertolet, of
Reading, 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. Robisont of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by American Federa-
tion of Hosiery Workers, Branch #10, herein called Branch 10,
the National Labor Relations Board, herein called the Board, by
Stanley W. Root, Regional Director for the Fourth Region (Phila-
delphia, Pennsylvania), issued its complaint, dated November 6,
1937, against Berkshire Knitting Mills, Reading, Pennsylvania, here-
in called the respondent, alleging that the respondent had engaged
in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1), (2), and (3) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint, accompanied by notice of
hearing, were duly served upon the respondent, Branch 10, and
Berkshire Employees Association, Inc. of the Berkshire Knitting
Mills, herein called the Association, a labor organization which the
complaint alleged the respondent interfered with, supported, and
dominated.
In respect of the unfair labor practices, the complaint alleged, in
substance, (1) that in September 1933, the respondent caused the
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
BERKSHIRE KNITTING MILLS 241
its employees from affiliating with Branch 10, thereby interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act; (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 three employees,
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 in September 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 em-
ployment 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 ac-
tivities with other employees for the purpose of collective bargain-
ing; and (6) that the respondent, by all the above acts and other
acts and conduct, interfered with, restrained, and coerced its em-
ployees 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. This ruling is hereby
affirmed.
The respondent filed an answer, dated November 24, 1937, in which
it admitted certain allegations of the complaint concerning the na-
ture 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 complaint concerning unfair labor practices, except
that it admitted the termination of the employment of the three
men alleged in the complaint to have been discriminatorily dis-
charged and stated affirmatively 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, but merely
for the purpose of annoying and harassing the respondent, which fact
was known or could have been known to the Board by investigation
prior to the issuance of the complaint.
Pursuant to the notice, a hearing was held in Reading, Pennsyl-
vania, from November 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-
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained to the Association. Thereafter the Association was repre-
sented at the hearing.' With the limitation noted above as to the
Association , 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 by
the Regional Director . The objection was overruled .2 The above-
rulings are hereby affirmed . At the close of the Board's case, the
respondent moved to strike all testimony regarding events which
occurred prior to the effective date of the Act. The Trial Examiner
reserved decision on the motion . The motion is. hereby denied, for
reasons which are more fully discussed below.3 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, and the rulings are hereby
affirmed. The Board has reviewed the rulings of the Trial Ex-
aminer on other motions and on objections to the admission of evi-
dence and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
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. C. The respondent and . the
Association were represented by counsel and presented their argu-
ments. Branch 10 did not appear. Prior to the oral argument the
I 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.
2 The Regional Director ' s signature was affixed to the complaint and notice of hearing,
as a single document.
8 See infra, footnote 13.
BERKSHIRE KNITTING MILLS 243
respondent, the Association, and Branch 10 filed briefs with the
Board. After the oral argument, in accordance with permission
granted by the Board, the respondent filed a supplemental 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 respond-
ent was prejudiced and denied due process of law by the omission
of an Intermediate Report.4 The petition is hereby denied.
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 Examiner, 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 a brief 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,
respectively, May 26, May 25, and May 25, 1939.
Pursuant to notice, oral argument on the exceptions was had be-
fore the Board on July 13, 1939, in Washington, D. C. The respond-
ent, 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. The Board has considered the exceptions
to the Proposed Findings, and in so far as they are inconsistent with
the findings, conclusions, and order below, finds them to be without
merit.
As part of its defense in this proceeding, the respondent in its
answer alleged affirmatively that the complaint should be dismissed
because, among other things, the charges filed by Branch 10, upon
which the complaint is based, were not filed "in good faith," but for
the purpose of "annoying and harassing the respondent," all of which
the Board knew or could have known by investigation prior to the
issuance of its complaint. In connection with this defense the re-
spondent requested the Board to issue a subpoena, duces tecum com-
pelling Luther D. Adams, president of Branch 10, to produce certain
records of Branch 10. The Board denied the request and the re-
spondent assigns this ruling as prejudicial error. The Act empowers
4 At the oral argument before the Board almost 2 months prior to the filing of this
petition by the respondent, no such contention was made.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .
the Board to issue a complaint against a person charged with en-
gaging in unfair labor practices. It does not condition the power
of the Board upon the motive of the person filing the charge. As
the Board finds below, the record sustains substantially all the allega-
tions of unfair labor practices made in the complaint.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
A. Berkshire Knitting Mills
The respondent, Berkshire Knitting Mills, was incorporated under
the laws of the Commonwealth of Pennsylvania on July 12, 1906.
It is engaged in the manufacture, sale, and distribution of women's
full-fashioned hosiery. Its principal place of business is in Reading,
Pennsylvania, and it operates a plant which is located partly in the
Borough of Wyomissing and partly in the Borough of West Read-
ing, Pennsylvania. This plant, which has a floor space of 1,106,650
square feet, produces the entire output of the respondent, which
constitutes 7 per cent of the entire production of women's full-
fashioned hosiery in the United States. The respondent is the larg-
est manufacturer of such hosiery in the country. On November 15,
1937, it had 5,779 employees. It has several subsidiaries, including
two hosiery companies in New York State, in each of which it owns
a 50-per cent interest.
The raw materials used by the respondent in its production are
silk, cotton, and rayon. The rayon is shipped to the respondent
from North Carolina; the silk is shipped from New York importers;
and the cotton is purchased in Pennsylvania. The rayon and silk
constitute 90.61 per cent of the raw materials used in production.
In. addition to these materials, the respondent purchases machinery
from concerns in Pennsylvania, Rhode Island, Kentucky, and Illinois.
Between November 1, 1936, and October 31, 1937, it spent $69,409.85
for replacements and repairs of machinery. Other materials pur-
chased both within and without Pennsylvania include boxes, soap,
oils, and cases. The total purchases from July 1936 to October 1937
amounted to $10,246,089.19, of which $5,990;680.26, or 58.47 per cent,
represented materials shipped to the respondent from points outside
of Pennsylvania by railroad and motortruck.'
The stockings produced by the respondent require no further fin-
ishing after they are shipped from the plant. These shipments are
made by railroad, motortruck, express, and parcel post. During
5 The respondent has a siding connecting with the Reading Company Railroad.
BERKSHIRE KNITTING MILLS 245
September 1937, a peak month of operations, 218,353 15/24 dozen
stockings were produced. The finished product is sold and shipped
to wholesalers and retailers in every State in the Union, and also in
England and Africa. Between July 1936 and October 1937, the
respondent's total sales aggregated $18,353,495.30 in value. Of this
amount $16,010,364.56 represented the value of its products sold
and shipped by the respondent to customers outside of Pennsylvania.
The respondent maintains offices in New York City ; Chicago,
Illinois; and Los Angeles, California. It,advertises in magazines
with a ,Nation-wide circulation, and also by displays and direct mail.
B. Wyomissing Industries
The respondent, together with the Textile Machine Works, herein
called the Machine Company, and The Narrow Fabric Company,
herein called the Fabric Company, constitute what are known as the
Wyomissing Industries. Each of these companies was founded by
the same two men, Ferdinand Thun and Henry Janssen, both of
whom are still active in the conduct of their affairs. Each company,
however, is operated as a separate unit as to finances and production.
Except for some preferred stock of the respondent owned by the
Machine Company, there is no inter-ownership of stock by the three
companies. The record does not show the extent to which the stock
of the three companies is owned by the same individuals. The
Machine Company is engaged in the production of various types of
machinery, and the Fabric Company in the production of braided
trimmings for clothing.
The plants of the three companies are situated on contiguous
properties and are connected by underground tunnels. Numerous
activities of the Wyomissing Industries are carried on jointly through
Cooperative Service, an unincorporated agency established and finan-
cially supported by the companies. Among the other services which
are under its control is the Recreation Hall which is described at
greater length below.6
II. THE ORGANIZATIONS INVOLVED
American Federation of Hosiery Workers, herein called the Fed-
eration, is a labor organization affiliated with the Committee for
Industrial Organization. It admits to membership all employees in
the hosiery industry in the United States exclusive of supervisory
employees. Branch 10, which filed the charge in this proceeding,
was chartered by the Federation. Its membership is limited to em-
ployees in the full-fashioned hosiery mills in Berks County, Penn-
9 See Section III B, infra.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sylvania. Branch 10 is itself divided into separate divisions for
each plant within the county. Employees of the respondent who
join Branch 10 thereby become members of what is known as the
Berkshire Division.
Berkshire Employees Association, Inc., of the Berkshire Knitting
Mills, is an unaffiliated labor organization which was incorporated
under the laws of Pennsylvania on May 6, 1935 . Prior to its incor-
poration it had been an unincorporated association known as Berk-
shire Employees Association. It admits to membership all employees
,of the respondent, except foremen, foreladies, and other supervisory
.employees.
III. THE UNFAIR LABOR PRACTICES
A. The strike anal election of 1933
in 1933 there was a general strike in the knitting mills situated in
-Berks County, which spread to the plant of the respondent on July
5 of that year. It was led by the Federation. Two-thirds of the
mills in the vicinity were on strike when the respondent 's employees
went out. The strike at the respondent's plant lasted for 7 weeks.
At the end of that period, as the result of mediation by the National
Labor Board, established under the National Industrial Recovery
Act, the strike was settled by an agreement which provided for an
election in which the employees would "elect their representatives to
:c Zeal with the management in working out agreements dealing with
-the relationship of employees and employer."
In the negotiations which followed the termination of the strike,
the respondent and other mills refused to agree to the inclusion of
the Federation on the ballot by name. They insisted that the elec-
tion be held on the basis of selecting individuals as representatives,
rather than organizations. The ballot finally agreed upon contained
two collmuns, one headed "Union Ballot" and the other, "Non-Union
-3allot." In each column there appeared three names, one as candi-
date for shop foreman and two as candidates for the position of
representative. The election thus held resulted in a victory for the
Federation candidates by a vote of 2,662 to 976. The respondent at
that time had between 3,700 and 4,100 employees.
After the election, the Federation attempted to reach an agreement
with the respondent upon some kind of working arrangement, but
questions arose as to the significance of-the election. The respondent
again refused to deal with the Federation as an organization. It
was agreed, finally, that committees should be set up on a. basis pro-
portional to the vote in the election. This meant that they should
-number three Federation representatives to each non-Federation rep-
BERKSHIRE KNITTING MILLS 247
resentative. It does not appear, however, that such committees were
ever established.
Extended negotiations during the latter half of 1933 resulted in a
contract between the respondent and Emil Rieve and Luther D.
Adams, two officials of the Federation, which was signed on January
11, 1934. The respondent had refused to sign a contract with the
Federation, and consequently the agreement was made merely with
the two individuals "for the employees they represent." It was to
be effective until June 1, 1934, and provided generally for adherence
to the provisions of the N. R. A. Hosiery Code, and for arbitration by
a Dr. George W. Taylor.
B. The, Association
Prior to the strike and election described above in Section III A,
the respondent attempted to establish a plan of employee represen-
tation among its employees. On Thursday, June 29, 1933, a coin-
nzittee of employees in the legging department, was selected by their
foreman, and were told by them to leave their work and to go to the
Recreation Hall. At the meeting thus called, 20 to 30 knitters were
present, as well as Donald Eaches, the respondent's purchasing agent,
William Brenner, assistant superintendent, and Isaac Witman, super-
intendent of the legging department. Eaches read a draft of a
proposed employee representation plan, and told the men that they
could accept it, or reject it, and that they might also, if they chose,
call a meeting of the leggers to discuss it. He referred to the strike
then in progress in the vicinity, stated that he knew that organiza-
tion in the plant was being discussed, and warned the men against
striking. Thereafter the supervisory employees left the meeting and
an employee named Merritt H. Schoener was made chairman. The
men voted in favor of holding a meeting of the entire legging
department.
A. meeting of the men in the legging department was held that
night in the Recreation Hall. The men on the day shift demanded
the presence of the night-shift employees, and the latter were per-
mitted to leave their machines in a body and proceed to the Recrea-
tion Hall, where they remained for the duration of the meeting,
which lasted 11/2 hours. Schoener read the plan which had been
previously produced by Eaches and spoke in favor of certain of its
provisions. After discussing the matter, however, the men voted,
with only. a single vote to the contrary, to reject the plan. During
the course of this meeting, those present noticed that an employee
named H. Leroy Fritz was taking notes. He was required to desist
and the notes were destroyed.
247as4-40-vol. 17--17
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
After the vote it was suggested by some of those present that the
men sign up then and there in Branch 10, which, up to that time,
had had very few members among the respondent's employees. An
employee named Wolf advised the men not to do anything they
would later regret. However, a number of those present left the
premises and proceeded to the headquarters of Branch 10, where
they joined that organization.
Meetings similar to the two described above were held for em-
ployees in the footing and boarding departments. They were ad-
dressed by Eaches and others. The plan presented met with the
same reception.
The record does not show the exact form of the plan presented at
these meetings, but it appears that it was in the form of an employee
representation system wherein representatives were to be elected in
each department for presenting grievances to the management.
Following the rejection of the plan, Eaches spoke to Jacob Engle-
hart, a footer who had been selected by his foreman to serve on the
committee from his department which met on June 20, and who was
later very active on behalf of the Federation. Eaches expressed re-
gret at the complete failure of the plan to make progress, and urged
Englehart to do his best to make it succeed. He assured Englehart
that the latter was the best man for that job and said, "You go
through the rest of the departments and help these others, and we
will have a good organizaion here, and we won't have any trouble
at all."
Hugo Hemmerich, the respondent's general superintendent, testi-
fied at the hearing that he knew of these meetings and of the partici-
pation therein of Eaches and Brenner. He could not remember
whether the latter had reported to him before or after the events in
question. He stated that he believed the meetings were called at the
solicitation of employees who were in doubt as to the significance of
the newly enacted National Industrial Recovery Act, and that Eaches
and Brenner attended in order to explain that statute. This explana-
tion, however, is not consistent with the fact that Eaches brought to
the meetings a complete plan of employee representation, which, ac-
cording to Hemmerich, was copied from a plan already in operation
at a nearby plant; nor does it explain Eaches' expressed desire to
have the plan adopted. We conclude that the respondent at this
time attempted to foist on its employees a labor organization of its
own choosing, in opposition to the Federation.
Although the first formal meeting of the Association did not take
place until August 1933, the movement to form an unaffiliated or-
ganization was already in progress before the strike which com-
menced in July of that year. Both Hemmerich and George
BERKSHIRE KNITTING JIILLS 249
Frederick Werner, who was president of the Association at the time
of the hearing, testified to that effect. Two of the three "Non-Union"
candidates on the ballot used in the election, Schoener and Fritz,
were later active in the formation of the Association. The record
does not show how the "Non=Union" candidates were selected; and
literature which was circulated in support of their election was not
signed. It is clear that the drive for the formation of the Associa-
tion, already under way before the 1933 strike, received impetus from
the respondent's attempt to oppose the Federation by a labor organi-
zation limited to its own employees.7
The chief employees active in the formation of the Association
were Fritz, Wolf, and Schoener. Werner soon became active also.
The first formal meeting took place in the respondent's Recreation
Hall on August 28, 1933, although the testimony of Werner indicates
that there were several informal meetings prior to that date at the
homes of some of the founders. The minutes of the Association show
that at this first meeting Schoener had a copy of the articles and
bylaws which were to be considered by the Association. Werner was
tmab]e to state how it happened that Schoener had these bylaws or
where he procured them. They were finally adopted at the fourth
meeting of the Association on September 18.
The bylaws of the Association, as amended, provide for a presi-
dent, vice president, executive secretary, and treasurer who are re-
quired to be employees of the respondent for at least 5 years, and
for an advisory council consisting of employees of at least 7 years'
standing. Since the incorporation of the Association in 1935, the
advisory council has been known as the Board of Directors. Mem-
bership in the Association is terminated by resignation, death, pro-
motion. to a supervisory position, or by the termination of employ-
ment with the respondent. In rare cases, it may also be terminated
by action of the president, with the right of appeal to the advisory
council.
Members of the Association pay no dues. Their only obligation
is to observe the rules of the Association. The only rule which has
any actual effect is one which forbids the joining of another labor
organization. There is no obligation to attend meetings or to take
part in the activities of the Association. In fact, although by No-
vember 25, 1937, the Association listed 3,108 employees as members,
its meetings were always poorly attended. Estimates of the number
of employees who attended meetings varied from 25 to 100. The
bylaws of the Association originally provided that one-tenth of the
membership should constitute a quorum at the regular monthly
' See Matter of Crawford Manufacturing Company and Textile Workers Organizing
Committee, 8 N. L. R. B. 1237.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings. It was found necessary, some time in 1936, to change this
provision so that 20 members constituted a quorum. Prior to that
time, most of the activities of the Association were carried on with-
out a quorum. Werner was thus elected to be president, on January
21, 1936, at a meeting attended by less than a quorum. Similarly,
meetings held for the Association's 51 departmental representatives
were also badly attended, and the Association has found it impos-
sible to follow the machinery for the election of these representatives
by its members. In 1937 they were appointed by the advisory
council.
The above facts show that the Association's membership list
showed a paper membership only, since an employee, once enrolled,
remained a member indefinitely, even though he might have lost
whatever interest he had in the Association at the time of his enroll-
ment." He may have destroyed his membership card as soon as he
received it, as many employees did, and he may never have partici-
pated in the affairs of the Association in any way. He would still
be carried as a member on its books. The manner in which em-
ployees have been induced to join the Association, described below,
shows how the Association acquired its large paper membership
despite the small number of employees who took part in its
activities.
Although the Association was originally formed as an unaffiliated
organization having no ties with any group outside of the employees
of the respondent, it early affiliated itself with the Berks County
Hosiery Employees Associations, herein called the Berks County
Associations, which is a federation of organizations similar to the
Association at various knitting mills in the vicinity. The purpose
of this federation is not clear. It holds large social events, known
as Conclaves, for the purpose of raising money, and it also sponsors
a magazine known as the "Hosiery Examiner." ,
The Association was formed ostensibly to act as a labor organiza-
tion. The preamble to its constitution contains a provision that
"This organization shall at all times in its existence, maintain an
attitude strictly non-sectarian, no nationality discrimination, not
take part in any political issues, or affairs of state." The Associa-
tion has engaged, however, in various activities inconsistent not only
with that provision but also with its supposed status as an organiza-
tion representative of employees. At a time when the Association
purported to be operating under an agreement with the respondent,
8 Branch 10 had a similar non -dues -paying membership in September 1036 of more than
3,400 employees of the respondent.
B The Association withdrew from the Berks County Associations in May 1037 , because
that organization had criticized the respondent for its position during the strike in progress
at that time.
BERKS:E[.IRL KNITTING MILLS 251
which is further discussed below, it issued leaflets to the effect that
the National Labor Relations Act does not require the signing of
agreements by employers with labor organizations. Another leaflet
issued by the Association, devoted to a discussion of the effects of
the Act, pointed out that employers do not have to agree to demands
made by labor organizations. Werner stated at the hearing that the
Association desired a closed-shop agreement for itself. Yet it
issued this leaflet, and also supported the "Hosiery Examiner,"
mentioned above, which carries on its masthead the slogan, "For the
Democracy of the Open-Shop against the Tyranny of the Closed-
Shop." An examination of these and other activities of the Asso-
ciation and its president leads to the conclusion that it has at all
times represented and upheld the interests of the respondent, even
when they conflicted with those of the employees.
The contract between the respondent and representatives of the
Federation, which was concluded on January 11, 1934, has already been
mentioned in Section III A, above. On October 19, 1933, while negotia-
tions for this contract were in progress, the Association sent a letter to
the respondent in which it requested that the respondent sign an
agreement with that organization also. It stated, "We ask for no
favors. But request a parity of agreement and recognition." The
Association did not participate in any way in the negotiations leading
to the Federation agreement; however, on the day following the sign-
ing of that agreement, the respondent signed a contract with Fritz
and Schoener, who were officers of the Association, which agreement
was identical with the one concluded on the previous day, except that
it did not name an arbitrator. Thus the agreement was made with
Fritz and Schoener for the employees they represented ; it did not
purport to be with the Association; and it provided generally for con-
formity to the provisions of the Hosiery Code.
The respondent and the Association consider this contract as still in
effect by virtue of its automatic renewal provision. The respondent
treats the contract as one made with the Association although one of
the two men with whom the contract was signed is no longer a member
of the Association because of his promotion to the rank of foreman.
Actually it does not appear that the contract has ever had any practical
effect. Despite its existence, the respondent determines the rates to
be paid for the various operations without consulting the Association
with regard to whether such rates are consistent with the terms of the
contract. In at least one substantial respect, the respondent departed
from the terms of the contract without any protest from the Associa-
tion: This was with regard to an arrangement made for 51-gauge
knitters late in 1935. The 51-gauge knitters were all induced to sign
individual contracts whereby they were guaranteed a certain amount
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of work during each year, but received a flat rate of wages rather than
the piece-rate prevailing in the industry.
The fact that membership in the Association terminates automat-
ically upon severance of a member's employment with the respondent
has the effect of giving the respondent the power of ousting any official
of the Association who proves undesirable to it. Similarly the re-
spondent may, without resorting to the expedient of a discharge, de-
prive an employee of his status as departmental representative by
transferring him to a new department. Representatives of the Associa-
tion are therefore handicapped in pressing any contention adverse to
the interests of the respondent. That this handicap has been effective
may be seen from the brief description of the Association's activities,
above. Its chief activity, other than social activity, has been to plead
the cause of the employer whenever - issues have arisen between the
interests of the respondent and those of its employees. The paper
membership has shown by its failure to participate in the activities and
administration of the Association its realization of the ineffectiveness
of the Association as an organization representative of its interest.
The records of the Association show that it has discussed numerous
grievances with respondent and has secured the adjustment of many
of them. Such activities, however, are not carried on only by organi-
zations free of company domination. Other circumstances persuade
us that these adjustments were only those which.all employers make in
the normal course of industrial operations.
We turn now to the methods by which the respondent has openly
fostered the growth of the Association.
The Association has held all its monthly meetings in the Recrea-
tion Hail, which is located in the Dispensary Building. After each
meeting, refreshments have been served in the basement of that
building. The Dispensary Building is owned by the respondent and
is leased by it to Cooperative Service, which is described in Section
I B, above. The respondent has always made it clear that the various
services and facilities of the Dispensary Building are open to all
employees of Wyomissing Industries, but only to those employees.
In addition to holding its meetings in the Recreation Hall, the Asso-
ciation has held social affairs there and it maintains a permanent
officer in the basement of the Dispensary Building. In this office
it keeps a desk, a typewriter, and a filing cabinet. It also stores
supplies there, including a large number of blankets which it raffles
off as one of its sources of income. The basement is reached through
a door on the outside of the building. Over this door there is a sign
21/2 x 4 feet, which reads, "B. E. A. Office." In this office, committee
meetings are held and the secretarial work of the Association is
done. Officers of the Association may remain on the premises after
BERKSHIRE KNITTING MILLS 253
hours to transact business, and members of the Association may go
to the Recreation Hall at any time, even on Saturdays, when the
plant is closed. In order to reach the Dispensary Building, it is
necessary to go through a private entrance to the respondent's prop-
erty. In its articles of incorporation, the Association gives the
respondent's Recreation Room as its postal address.
At the time it was organized, the Association offered to pay the
respondent for its use of the Dispensary Building, but the respondent
refused to accept such payment on the ground that the Dispensary
Building was intended for the use of all its employees. It is undis-
puted that the Association had the respondent's permission to use
part of the Dispensary Building as a permanent office. This use of
the Dispensary Building, which started prior to the effective date
of the Act, continued after that date up to the time of the hearing
before the Trial Examiner in this proceeding.
The-respondent at no time permitted any unit of the Federation
to conduct a meeting in the Recreation Hall.'° Representatives of
the Federation made several requests for such use. As early as
November 1933, at a conference with Eaches and Brenner, Luther H.
Ammarell requested the use of the Hall for Berkshire Division of
Branch 10, which as stated above, is limited to employees of the
respondent. Eaches stated that such use was impossible, because
Berkshire Division was affiliated with an outside organization. At
a subsequent conference with Hemmerich, the matter was again re-
ferred to by representatives of the Federation and again use of the
Hall was refused. Hemmerich stated at the hearing that he believed
the reference to the Hall was merely facetious and that he told the
Federation officials, "You are just trying to kid me, anyhow."
Finally, in March or April 1934, Branch 10 instructed its representa-
tives again to request the use of the Hall, in view of the fact that
the Association had itself become affiliated with the Berks County
Associations, an outside organization. The request was made at a
conference with Eaches and Brenner, who refused to discuss the
matter at length. Eaches stated, "You know, I can't answer that."
While no requests for use of the Recreation Hall by either Branch
10 or Berkshire Division have been made since the effective date of
the Act, the respondent clearly takes the position that, at least as
IO The respondent contends in its briefs that Branch 10 has itself used the facilities
of the Recreation Hall. The reference is to one meeting of the Association which 14
members of Branch 10 attended, and to the meetings in June 1933, which were sponsored
by the respondent. As to the former, the attendance of 14 members of Branch 10 does
not alter the fact that it was an Association meeting to begin with. As to the latter,
the meetings were called by the respondent. Federation members were present, but they
never acted as such, and, in fact. when a group of employees decided to join that organi-
zation, they left the premises in order to do so. It is clear that no unit of the Federation
was ever allowed, as such, to hold a meeting in the Recreation Hall.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
far as Branch 10 is concerned, permission for such use would still
be denied.
There is no doubt that the respondent can properly supply facili-
ties to its employees for the purpose of social activities, and at the
same time deny the use of those facilities to persons who are not
numbered among its employees. However, the respondent may not
permit the use of its facilities by a labor organization limited to
its own employees, while refusing their use to a labor organization
which admits as members employees other than those of the 'respond-
ent. Such a rule discriminates in favor of the former type of organ-
ization. The mere fact that this advantage is secured through the
working of a rule which is proper when applied only to social activi-
ties does not justify the favoring of a labor organization of one type
over one of another.
In any event, however, the record shows that no such rule was
applied. In the first place, as Werner testified at the hearing, and
the minutes of the Association show, at least one meeting of the
Berks County Associations was held in the Recreation Hall. In the
second place, it is clear that permission to use the Hall was refused
even to Berkshire Division, which is limited to employees of the
respondent. Berkshire Division's affiliation with an outside organ-
ization does not explain this refusal in view of the similar affiliation
of the Association. Thus, no matter how the circumstances are
viewed, the respondent discriminated between the Association and
the Federation with regard to the use of the Dispensary Building.
The argument is made that unless it can be shown that the facil-
ities which the Association made use of were denied to Berkshire
Division, there is no showing that the respondent has assisted the
former. Nothing in the Act supports such a contention. Section
8 (2) renders the contribution of support to a labor organization an
unfair labor practice. The use of the Dispensary Building by the
Association was of great value to it. By permitting this use, the
respondent gave the Association the support forbidden by the Act.
At the first oral argument before the Board, counsel for the Asso-
ciation admitted that the permission to use the Dispensary Building
was "aid." He contended, however, that the acceptance of this aid
by the Association was just one of the mistakes which laymen make
when they do not have the advice of counsel. It is impossible to
minimize, however, the effect of this open use of the respondent's
facilities by the Association. The advantage cannot be measured
merely in terms of the amount of money the Association would have
had to spend to hold its meetings and maintain its office somewhere
off of the respondent's premises. The fact that the Association had
BERKSHIRE KNITTING MILLS 255
a permanent place on the mill premises, especially when the Federa-
tion was forced to maintain its office elsewhere, gave, advantages of
convenience and accessibility to the Association. Moreover, it in-
evitably gave the impression to employees that support of the Asso-
ciation constituted one of the regular activities conducted by the
respondent, especially since Berkshire Division and Branch 10 were
denied similar privileges 11
Solicitation of membership in the Association on company time and
by supervisors occurred throughout the plant, both before and after
the effective date of the Act. The most effective solicitation of this
kind was conducted in the needle-straightening room.
A man who procures employment with the respondent in the hope
of becoming a knitter undergoes an apprenticeship of about 4 years.
There are several stages prior to the commencement of his work as an
apprentice at the knitting machines. The first is in the cleaning
department where the employee stays for from a few clays to 2
months. From there, he goes to the needle-straightening depart-
ment, where he may stay for from 4 to 6 days. Thereafter, he spends
1 or 2 days in learning the elements of operating a knitting machine.
He is then prepared to assist in the operation of the machines.
William Kauffman is in charge of the needle-straightening depart-
ment. He is assisted by an employee named John Edward Wertz.
All new apprentices pass through the needle-straightening room and
receive instructions from these two men. Numerous witnesses testi-
fied that they considered Kauffman as a foreman, although in fact,
according to the respondent's witnesses, he does not enjoy that rank
nominally. Nevertheless, it is clear that he acts in a supervisiory
capacity in the needle-straightening room. Eugene Geiss, who, the
respondent contends, is the actual foreman, is rarely present in the
room. Kauffman and Wertz pass on the qualifications of the learners
to take the next step in their apprenticeship. If a man has not
learned to straighten needles, he stays in the needle-straightening
room, on the authority of Kauffman and Wertz. Wertz is in charge
of the department when Kauffman is absent. Kauffman has exer-
cised the power to discharge employees.
There is only one employee, Claude Hilbert, who teaches the ap-
prentices how to operate machines. It was not contended at the
hearing that Hilbert is a foreman. However, he also has the power
to decide whether those whom he instructs are qualified to go out into
the mill as assistants at the machines.
11 In National Labor Relations Board v . Wallace Manufacturing Company, Inc., 95 F.
(_2d) 818 (C. C. A. 4th), the Court mentioned similar conduct as one of the facts sup-
porting the Board's finding that the employer there involved had committed unfair labor
practices within the meaning of Section 8 (2) of the Act.
256 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
It can readily be seen that the departments under the supervision
of Kauffman, Wertz, and Hilbert constitute a bottleneck through
which a large number of employees continually pass. These em-
ployees, who have all been recently hired, are desirous of starting
to work at the knitting machines. These three men therefore have
positions which make their good will most important to the
apprentices who come under their instruction.
Employees of the respondent who pass through these departments
are requested to join the Association by Wertz or Hilbert, or both,
who distribute application cards and collect them when they have
been filled out. They urge those who hesitate to join, to do so.
They tell the employees that if they join the Association their jobs
will be more secure.
At the hearing both Hilbert and Wertz admitted soliciting mem-
bers for the Association. Hilbert, in fact, was on its membership
committee. He stated that he began soliciting members in 1935 and
had done so ever since. Wertz likewise admitted that from 1933 on,
he solicited more than 100 employees to join the Association, but
stated that he had ceased doing so since some time in 1936. At that
time, Kauffman told him that he should not solicit members during
working hours. He admitted, however, that this was the first time
Kauffman had given him such instructions, and that his solicitation
prior to that time had been open and unconcealed and had drawn no
rebuke from Kauffman. Kauffman denied that he had ever asked any-
one to join the Association. There is no testimony that he did so at
any time since the effective date of the Act, and it is not necessary to
determine whether he did so before that date. In any case it is clear
that Wertz and Hilbert, with the knowledge and permission of
Kauffman, used their positions to procure memberships in the Asso-
ciation, openly on company time, both before and after the effective
date of the Act.
The respondent is responsible for the pressure to join the Associa-
tion exercised by Wertz and Hilbert. All the activity in what we
have characterized as a bottleneck was carried out on company time.
Members were solicited in groups of from one to five, being taken
away from the work tables for that purpose. There can be no doubt,
and we find, that the solicitation of applications in this bottleneck
was notorious. The responsibility of the respondent for these solici-
tations rests not only on the fact that it placed Wertz and Hilbert
in the positions which enabled them to put pressure on the employees'
who went into their departments, but also on the fact that it made
no effort to check this open and continuous violation of its rules.
Association leaflets were distributed within the plant, both before
and after the effective date of the Act. The uncontroverted testi-
BERKSHIRE KNITTING MILLS 257
mony of David S. Horn , an employee , describes an incident which
occurred near the end of 1935. At the request of Werner , the Asso-
ciation president , Horn went to a meeting in the office of the Asso-
ciation, at which 20 to 25 employees were present . Following the
meeting, each of those present was given a pack of circulars announc-
ing a social event of the Berks County Associations , with which the
Association was then affiliated , and from which it derived some of
its income . Werner led the group to the telephone exchange, where
he arranged to have the buildings unlocked so that the men could
enter. Horn and four or five others went to one of the buildings
where a watchman unlocked the door and let them in. The men
then distributed the circulars throughout the five or six floors in the
building , placing them on the tables next to the knitting machines.
No one was working at this time. Horn brought the remaining
circulars back to the Association office and was requested by Werner
to return the following night to distribute the balance in the cars
parked on the plant premises. This was done.
Two other witnesses , similarly uncontroverted , testified to the
method by which a leaflet which bore the naive of the Berks County
Associations was distributed on September 30, the day prior to the
commencement of the 1936 strike.12 On that day, Francis Petro was
working in the cleaning department when a. elan whom he was
unable to identify , came in and spoke to his foreman . The foreman
turned and selected six or seven men, including Petro, and told them
to follow the man who had entered . The latter led them through
tunnels to the basement of the Dispensary Building, in which the
Association office was located . There they came upon Werner who
was seated at a desk. Werner invited them to sit down , and they
waited for some time until the first man returned with several
bundles of leaflets entitled, "Questions for the Hosiery Union to
Answer." Werner divided the leaflets among those present and told
them to go to the gates of the respondent 's property and distribute
the leaflets to the employees at the change of shift. Petro was
assigned to the gate at Van Reed Road. Before they left, the men
were given raincoats on which the letters, "B. K. M.," appeared.
Petro arrived at the gates shortly before 2 o'clock. He remained
until 4 o'clock, distributing circulars. About 10 minutes before 4
o'clock someone came out and asked him to remain longer, stating
that he would be paid for the extra time. Petro refused to remain,
however, and after returning the balance of his circulars and the
raincoat he went back to the cleaning department , where he punched
the time clock and then departed . Samuel Aiello had a similar ex-
perience on the same day, but he was not in the same group with
12 Discussed in Section III C and D, infra.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petro. Neither Petro nor Aiello lost any pay for the time spent in
distributing the circulars. It is clear that the respondent assisted
the Association in the distribution of these circulars, by permitting
employees to leave their work for that purpose and paying them for
the time spent in distributing the circulars.
During a few days just preceding the 1936 strike, the Association
also circulated a petition in the plant, addressed to the respondent,
to the effect that the signers did not want to strike, and desired
protection. The method by which the signatures to this petition
were procured, and the use made of it, are stated in some detail
in Section III D below. It is sufficient to state here that its circula-
tion was achieved in the plant, openly, on company time, and that
pressure to procure signatures was exercised by foremen, as well as
those directly engaged in approaching the men at work. Other
activities of the Association after the strike started are also described
below in Section III D.
The respondent contends that there is nothing in the record to
show that it favored the Association over Branch 10, and that in
fact the situation with which it was faced was that of two rival
groups confronting each other on equal terms. As proof of this
contention it points to the fact that on several occasions, and even
as late as September 1936, Branch 10 attempted to secure the
.cooperation of the Association in dealing with the respondent. It
is true that such attempts at cooperation were made, and officers
of Branch 10 testified that they were at all times willing to receive
such cooperation. They also testified, however, that they never
expected that their efforts would be successful. Their beliefs in
this regard were entirely justified, their attempts at cooperation hav-
ing been at all times either rejected or ignored. The most likely
explanation of their attempts to secure the cooperation of the Asso-
ciation, in view of the clear showing in the record that Branch 10
always considered the Association as a company-dominated organi-
zation, is that they were motivated by a desire to induce the Asso-
ciation to free itself of the respondent's domination.
The facts set forth above permit no conclusion' other than that
the Association had its origin in the respondent's open attempt to
forestall the Federation in June 1933, that after its formation in
August 1933 it was encouraged and supported by the respondent'13
i' Throughout the hearing, objection was raised to the admission of testimony concerning
events which occurred prior to July 5, 1935. The Board has repeatedly held that such
evidence is relevant to show the background of the events and activities alleged to con-
stitute unfair labor practices. It is clear in this case that the 1933 strike and election,
the attitude expressed at that time and subsequently by the respondent, and the other
circumstances surrounding the origin of the Association all help to cast light on the events
which occurred after the effective date of the Act. Matter of Pennsylvania Greyhound
Lines, Inc., Greyhound Management Company , Corporations and Local Division No. 1063 of
BERKSHIRE KNITTING MILLS 259
and that since July 5, 1935, the effective date of the Act, the re-
spondent has dominated, supported, and encouraged the Association.
It has given the Association an established office and meeting place
on its premises, and it has denied the use of its premises for meet-
ings to units of the Federation. Its supervisors have solicited mem-
bership for the Association and have spoken adversely of the Fed-
eration. It has permitted and pitid employees for the time spent
in the distribution of Association leaflets on its premises and during
working hours. Our conclusion with regard to the Association is
supported also by the facts with regard to the activity described
above in which the Association engaged, as well as its activity dur-
ing the strike of 1936, discussed in some detail in Section III D
below.
We find that the respondent 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.
C. Events leading to the strike of 1936
The contract of January 11, 1934, between the respondent and
two officials of the Federation, contained a provision for its expira-
tion on June 1, 1934, upon 30 days' notice by either party. During
April 1934 there were negotiations between the Federation and the
various knitting mills in Berks County, but no agreement for the
period after June 1 was reached. On April 28 Rieve and Adams
sent a letter to the respondent terminating the contract in accord-
ance with its provisions and expressing readiness on the part of the
Federation to continue negotiations for a new agreement. On May
1 the respondent replied by a letter which stated Inerely, "We
acknowledge with regret your cancellation of the present agree-
ment." The contractual relations thus terminated were never re-
sumed. No conferences for the purpose of negotiating a new agree-
ment, as suggested in the Federation's letter of cancelation, were
ever held.
Although the respondent later used the cancelation of the con-
tract as an excuse for not conferring with Federation representa-
tives, it did not do so at first. Several conferences took place dur-
ing 1934, 1935. and 1936 with Federation officials concerning par-
ticular grievances. During this period, the question of departure
the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of
America, 1 N. L. R. B. 1, 7, decree for enforcement of the Board's order granted, National
Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., and Greyhound Manage-
ment Company , 303 U. S. 261.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the standards fixed by the N. R. A. Hosiery Code was a matter
of serious concern in the hosiery industry. In several important
respects, the respondent was a leader in the break-down of those
standards. As one of its methods of lowering its labor costs, the
respondent increased the use of apprentices or helpers on the knit-
ting machines. Apprentices receive less than the full wage prevail-
ing for skilled operators. Although it was a general practice in
the industry to have at least one knitter to two machines, the re-
spondent, in some cases, had entire floors under the supervision of
a single knitter. Another important question concerned payment
of the so-called "11.11." The Hosiery Code, as amended, provided
that plants which maintained two shifts in the footing department
should operate on a 36-hour week, instead of the usual 40-hour week,
and should pay the employees a bonus of 11.11 per cent to make up
for the difference in earnings due to the reduction in hours. The
respondent departed from this practice immediately upon the in-
validation of the N. I. R. A. in 1935. The question of Saturday
work was also important to the industry. Numerous protests were
made by Branch 10 against the respondent's practice of occasionally
keeping its plant open, in certain departments, on Saturday.
Finally, some time late in 1935, the respondent introduced a system
of making contracts with individual employees whereby they were
guaranteed a certain amount of work during each year, but received
a flat rate of wages rather than the piece rate prevailing in the
industry.
All these matters were discussed at conferences between the re-
spondent and Branch 10. In addition, Branch 10 made numerous
complaints about favoritism displayed by the respondent toward the
Association. As found above, conferences were held concerning the
use of the Recreation Hall by the Association. From 1933 on there
were discussions concerning the activity of supervisors in support of
the Association, of discrimination between members of the two or-
ganizations during lay-off periods, and about the solicitation during
working hours of subscriptions to the Hosiery Examiner, a publica-
tion sponsored by the Berks County Associations, with which the
Association was affiliated. The respondent always denied the exist-
ence of any basis for these grievances and refused to take any action
concerning them. At a conference in September 1935,' Luther H.
Ammarell, president of Berkshire Division, requested permission to
solicit subscriptions to the Hosiery Worker, a Federation publica-
tion, in view of similar solicitation for the Hosiery Examiner.
Hemmerich denied this request, stating that no solicitation for either
magazine would be permitted. Subsequently, on August. 18 and on
August 21, 1936, Herbert W. Payne, district manager of the Federa-
BERKSHIRE KNITTING MILLS 261
tion, wrote letters to the respondent requesting permission to dis-
tribute the Hosiery Worker in view of the continued distribution of
the Hosiery Examiner. The respondent . ignored these letters.
With regard to the economic issues, the respondent also refused
to recognize the validity of any of the claims made by the Federation.
One of the principal arguments which it relied on was the competi-
tion which it faced from other mills . On many occasions it im-
pressed on the Branch 10 representatives the fact that it might have
to remove its operations altogether from the vicinity.
Throughout the period prior to the 1936 strike , the respondent
maintained a steadfast policy of not permitting the Federation to
secure any credit for the amelioration of the conditions of its em-
ployees. An example of the respondent 's attitude in this respect
occurred in the fall of 1935. One day in October of that year, a
foreman in the pairing department , Edward Wentworth, announced
that the employees would no longer be paid for defective work. Up
to that time a special rate had been paid for the defective products
which were normally produced by the employees in the course of
their work. Such a change would have resulted in a substantial
reduction in earnings . The morning following this announcement,
the employees in the pairing department determined to stop work
until the order was rescinded . Clarissa Goodman , a member of
Branch 10 , persuaded the girls not to strike, but to select a committee
of six consisting of three members of Branch 10 and three members
of the Association , to protest to Hemmerich . This plan was adopted,
except that the committee ,is finally selected had five representatives
of the Association , and three of Branch 10. Goodman , as chairman,
arranged for a conference with Hemmerich, through Charles W.
Fisher, superintendent of the pairing department . At the confer-
ence Hemmerich stated that the announced change would not be
made, but threatened to move the work done in the pairing depart-
ment to Philadelphia , "if the girls did not stop getting their heads
together on street corners." During the conference , a complaint
was also made by the committee concerning the conduct of a fore-
man named Wallace Halbagh. Hemmerich stated that Halbagh
would not be removed , and that he would name anyone he chose as
foreman . Halbagh was removed, however , on the following day.
Shortly after this incident , the Branch 10 publication , Berkshire
Unionist , published an article describing what had been accom-
plished by the committee and by the firm action of the girls in the
pairing department . This article contained . a misstatement in that
it claimed that a stoppage of work had actually occurred , which was
not the case . Immediately after its appearance , Fisher spoke to
Goodman and asked her to sign a denial of the article . He arranged
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a conference with Hemmerich to which all members of the committee
were summoned. According to the uncontroverted testimony of a
member of the committee, Hemmerich told the eight girls that if they
did not sign a denial they would all be dismissed. The first state-
ment drawn up by the girls did not meet with Hemmerich's ap-
proval. It was not until several redrafts had been submitted to
him that he found one acceptable. This draft was posted through-
out the plant. It stated generally that the Berkshire Unionist
article was false, that Hemmerich had "emphatically 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."
To summarize the above incident, the respondent coerced the mem-
bers of the committee into signing a public repudiation of the article
which appeared in the Branch 10 publication. The statement which
the girls were forced to sign denied that any order reducing wages
had ever been issued, although this was clearly not the case. Fur-
thermore, although the foreman, Halbagh, was removed, Hemmerich
made it appear that this was not the result of the committee's action.
The respondent contends that it was entitled to see to it that a false-
hood which had been circulated concerning it should be corrected.
However, the single falsehood in the Berkshire Unionist article was
the statement that a stoppage had actually taken place. The repu-
diation forced upon the committee by Hemmerich's threats of dis-
charge contained no denial of this portion of the article. On the
other hand it did contain falsehoods forced upon the committee by
Hemmerich. Thus, despite the fact that two concessions to the
pairer committee were made, the respondent took active steps to
prevent the impression from spreading that it had been the resolute
action of the committee led by Goodman, a member of Branch 10,
which had secured these concessions.
The above incident is in sharp contrast with the respondent's atti-
tude toward the Association's claims concerning its purported vic-
tories. Thus when that organization claimed in a leaflet to have
achieved a compromise with the respondent in September 1935
regarding the departure from the 11.11 bonus, no retraction of this
claim was demanded, although the record shows clearly that the
respondent's decision regarding the footer situation was made en-
tirely by itself.
_ We come now to a consideration of the events immediately pre-
ceding the decision of Branch 10, on September 26, 1936, to call a.
strike of the respondent's employees.
By the summer of 1936, Berkshire Division officials had come to
the conclusion that more positive action than they had theretofore
BERKSHIRE Ii11TT1\G MILLS 263
taken was necessary concerning the break-down of standards at the
respondent's plant. We have already referred to the two letters
sent to the respondent by Payne, the Federation's district manager,
on August 18 and 21. The latter of those two letters, in addition to
objecting to the solicitation of subscriptions to the Hosiery Examiner,.
referred to other acts of favoritism toward the Association, and to
the existence of three shifts in the boarding department at the mill.
Meanwhile, meetings of employees of various departments of the
plant were being held by Branch 10 to ascertain the facts concerning
the break-down of standards and the respondent's domination of the
Association. An open meeting was held on September 12 at the
Knights of Friendship Hall in Reading. There were 300 to 350
employees present at the meeting. Among them was Edward Went-
wortli, foreman in the pairing department. Wentworth, not content
with appearing at the meeting, rose and spoke. He was immediately
requested to leave by some of those present, but refused to do so. His
own explanation of this conduct, given at the hearing, was that he
"wanted to get the whole story," and that he was going to stay whether
they wanted him to or not.
Another person who attended the meeting and spoke was Werner,,
president of the Association. He told those present that if he was
permitted to go ahead with certain plans which he had, but which
he could not. divulge, that he would be able to produce results with
regard to the break-down of standards, the existence of which be
admitted.
At the meeting, the break-down of standards and the growth of
the Association were discussed. Although it was felt that little could
be expected in the way of cooperation from the Association, it was
decided to attempt to induce that organization to join with Branch
10 in sending a committee to the respondent. A request to select a
committee to join with a similar committee of Berkshire Division
members to interview Hemmerich was conveyed to the Association by
a letter dated September 14 signed by Adams, president of Branch 10.
The Association did not reply to this letter. Adams sent another
letter on September 22 in which he expressed disappointment at a
statement in the press that the Association would not cooperate with
the Federation. He again requested cooperation, but stated that the
Federation would proceed along its own lines, if necessary. The
Association ignored this letter also.
On the same days that letters were sent to the Association, Adams
wrote to Hemmerich. In the letter of September 14 it was stated
that a strike would be called unless steps were taken to restore at the
plant the prevailing rates of wages. The break-down of standards
s
247384-40-vol. 17-18
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was reviewed in some detail, and four demands were made, three of
which dealt with working conditions. The fourth demanded recogni-
tion of the Federation as collective bargaining agency for the re-
spondent's employees and claimed that it was necessary that the
Union be able to function effectively in the plant. The second letter,
mailed on September 22, stated that unless a reply to the contrary
was received, Adams, with a committee of four members of Berkshire
Division, would appear at Hemmerich's office on Thursday, September
24, at 4:15 p. in. Neither of these letters was answered. However,
Ammarell, president of Berkshire Division, was approached while at
work by his foreman who told him that Hemmerich was willing to
see a committee of the respondent's employees, but not one which
included Adams. A conference was finally arranged for Saturday,
September 26, at 11 a. in. between Hemmerich and a committee headed
by .Ammarell and limited to Berkshire employees.
Hemmerich stated at the hearing that his refusal to meet with
Adams was based on propaganda about the respondent which, the
respondent claimed, had been spread by Branch 10, of which
Adams was president; and that he did not approve of such tactics.
Although he had been willing to confer with Adams in the past, be
did not wish to confer with him "at that time." He testified further
as follows :
Q. I know that very well, that you did not care to see him at
that time. I am merely-trying to find out why you did not
want to see him when you knew that he represented the minority
in your plant?
A. I think there were representatives in our plant at the
time who would come in to see me, just as well.
Q. In other words, you would prefer to deal with the repre-
sentatives who were employees of the Berkshire in matters affect-
ing the Berkshire Knitting Mills production, wage scale, and
so forth?
A. At that particular moment I did; yes.
Q. Yes?
A. Before that I did not.
Q. That is right. Before that, despite the fact that the con-
tract had expired in June 1934, you would permit Mr. Rieve
and Mr. Adams to come in and discuss matters with you?
A. That is right.
Q. Your refusal thereafter, in the summer of 1936, to see Mr.
Adams was not based upon the fact that the contract had expired;
was it?
A. It was based on what I termed before, the tactics used by
him and the organization.
BERKSHIRE KNITTING NIILLS 265
Q. Was it based upon the fact that the contract had been can-
celled in 1934?
A. At that time?
Q. Yes.
A. No.14
The conference which took place as arranged on September 26
demonstrated the effect of its having been limited to employees of the
respondent. Hemmerich adopted a technique notoriously effective in
its tendency to weaken a bargaining committee of employees 15 He
questioned each individual separately as to his wages and hours and
received from each a statement that he himself was satisfied. In par-
ticular, Hemmerich ridiculed one member of the committee, John
Fork, for bringing the protests of others to the management when
Fork had only recently received a change for the better in his own
working conditions. Hemmerich stated that he was under no obliga-
tion to deal with the committee at all in view of the expiration of the
1934 contract. This is the first time that this argument was used.
Finally, the matters mentioned in the letters which had been sent to
Hemmerich were discussed, and Hemmerich stated as to each that no
changes would be made. There was no discussion of the Association,
the conference being limited to the economic matters at issue.
At a meeting of Berkshire Division held on the afternoon of Septem-
ber 26, at the Knights of Friendship Hall, the results of the conference
with Hemmerich were reported. It was decided to instruct the execu-
tive board of Branch 10 to call a strike not later than the following
Thursday, October 1, and such a strike was called. Three hundred to
350 persons were present at the meeting, at which the strike vote was
taken. The vote to strike was unanimous.1e
The strike thus called started on October 1, 1936. It is necessary to
consider at this point whether, as alleged in the complaint, the strike
resulted from any unfair labor practice on the part of the respondent,
or whether it resulted, as the respondent contends, merely from the
economic issues which had arisen between it and the Federation.
At the hearing, representatives of Branch 10 testified that the chief
factor.behind the strike was the break-down of standards of working
conditions. Thus Ammarell stated that if all the economic issues had
been settled there would have been no strike. The brief which the Fed-
14 It was at this time also that Payne , the Federation 's district manager , attempted to
speak to Hemmerich on the telephone , but was told that Hemmerich had nothing to say
to him. Hemmerich explained this refusal on the ground that Payne did not represent
employees of the respondent and that the respondent had no contract with him.
15 Cf. Matter of Herbert Robinson and Otto A. Goiluber and Wholesale Dry Goods Em-
ployees Union , Federal Local 19932, 2 N. L. R . B. 460.
10 an employee named Eugene Moyer was discharged as a result of his participation in
this meeting . His discharge is discussed in Section III F , infra.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eration sent to the Governor of Pennsylvania shortly after the com-
mencement of the strike dealt almost exclusively with those issues,
although it also referred to the formation in 1933 of a "company
union," an obvious reference to the Association. It has been seen that
the letter of September 14 which was sent to the respondent by Branch
10 demanded the recognition of the Federation as the bargaining
agency for the respondent's employees. However, at-the conference of
September 26, described above, the only matters raised for discussion
by the representatives of Branch 10 were those involving questions of
working conditions.
On the other hand, the record shows clearly that from the time of
the formation of the Association to the time when the necessity of
calling a strike was debated, the Association was discussed at every
meeting of Branch 10. It was generally considered as an obstacle to
successful organization. We have held above that this obstacle was
created and maintained by the respondent. The record shows that the
Federation at all times so considered it. Its leaflets referred to the
Association as a "company union." Although Hemmerich testified
that no complaints were ever made to him about the respondent's sup-
port of the Association, his own description of conferences with repre-
sentatives of Branch 10 shows that discrimination between the two
organizations was discussed. as early as the fall of 1933. The letter
sent by Payne on August 21, 1936, already referred to, contains lengthy
charges of favoritism on the part of the respondent's foremen and
superintendents.
In September 1936, Branch 10 had reached the point where it found
it necessary to strike; and indeed the'conduct of the respondent at this
time shows that it too considered that a turning point had been reached.
Although it had been willing to meet with Federation representatives
in the past, by September 1936, when the situation was growing more
tense, it fell back, as described above, on various excuses for refusing
to deal with any but its own employees." The respondent's attitude
toward the Federation and the Association since the 1933 election,
in which the Federation had shown great strength, receiving the votes
of a majority of the employees, had gradually forced the Federation.
into a position where extreme measures were necessary to its very
existence. The time had come for the respondent to throw every
obstacle in the way of peaceful organization by Branch 10, in order
to drive it into a position where it could be completely exterminated.
One of the chief purposes of the National Labor Relations Act is to
eliminate the causes of industrial strife by encouraging the substitution
of the methods of peaceful negotiation between employers and freely
17 See, for example, the description above in this section of the respondent's refusal to
meet with Adams, or to talk with Payne, in September 1936.
BERKSHIRE KNITTING MILLS 267
.organized groups of employees for strikes and lock-outs, the methods of
industrial warfare. In this case, peaceful negotiations concerning the
-economic issues which had arisen were prevented by the respondent's
unfair labor practices. It is true that it was the economic questions
with which Branch 10 was chiefly concerned, and that their resolution
was the chief purpose of the strike. Nevertheless, it was the respond-
ent's unfair labor practices which rendered impossible any course of
action other than that of industrial strife.
For the 3 years prior to the calling of the strike of 1936 the activity
On the part of the Federation had taken the form of efforts to main-
tain and expand its organization, among the respondent's employees
and to induce the respondent, by means of negotiation, to accept its
,demands. In September 1936 the Federation decided that its past
activities had met with failure, and it determined to strike. This
change in tactics was forced upon the Federation by the activity of
-the respondent in unlawfully frustrating the self-organization of its
-employees, chiefly by fostering the Association. The support of the
Association, the refusal to see a committee which included a non-
•employee, and the various other acts of interference by the respondent
with the self-organization of its employees, created a barrier to the
attempts by the Federation and Branch 10 to deal with the respond-
-,eut concerning the terms and conditions of employment of the re-
-spondent's employees, and constituted a denial by the respondent of
-the right of its employees to organize, and a refusal to accept the
Tirocedure of collective bargaining.18 The creation of this barrier,
-and the course of action forced upon the Federation as a result there-
,.of, demonstrate how the respondent's unfair labor practices thwarted
the purposes of the Act by causing industrial strife.'0
There is here presented the very type of situation envisaged by
Congress when it passed the Act. At that time, 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 bar-
gaining lead to strikes and other forms of industrial strife or
--unrest, * 'I *.,720 The Supreme Court has accorded this finding
15In Consolidated Edison Company of New York v. National Labor Relations Board,
•et at. , 305 U. S. 197, the Supreme Court stated that the continued existence of a company
-union established by unfair labor practice or of a union dominated by the employer is a
consequence of violation of the Act whose continuance thwarts the purposes of the
-Act * * *."
"We have seen above that just before Branch 10 decided to strike, it made an effort
to overcome the barrier of the respondent's unfair labor practices by requesting the coopera-
tion of the Association in dealing with the respondent concerning the break-down of
standards . The effectiveness of the respondent ' s interference with the rights of its
-employees is shown by the Association ' s rejection of this request . The statement of
Branch 10 on September 22 that it will proceed along its own lines if it cannot obtain
Joint action" shows that the failure of this last effort was a decisive factor in the decision
,to strike.
20 49 Stat . 449, Section 1.
268 DECISIONS OF NATIONAL LABOR REI{ATIONS BOARD
the stamp of judicial approval.21 The so-called "break-down of
standards" recognized as existent by both the Federation and the
Association provided the motive for collective action on the part of
the employees. The respondent's unfair labor practices forced that
action to take the form of striking by preventing the adoption of
any other course, and made it' impossible to determine whether, in
their absence, other methods would have been chosen.
In National Labor Relations Board A,. Remington Rand, Ine.,22
the Circuit Court of Appeals for the Second Circuit said :
We have assumed hitherto that the strike here in question was
only for the purpose of enforcing the union'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 busi-
ness 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 tortfeasor 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 cannot say that the loss
of the men's jobs was due to a controversy which the act does
not affect to regulate. * *
Here, as in the Remington Rand case, the respondent cannot show
that if Branch 10 had been permitted to function free from the
handicap of the respondent's unfair labor practices, it would have
found the method of peaceful organization unsuccessful for the at-
tainment of its aims, and would have adopted a course of strike
action.
We find that, although the resolution of economic issues was the
chief purpose of the activity of Branch 10 at the respondent's plant,
the respondent's long continued course of unfair labor practices de-
scribed above made the calling of the strike of October 1, 1936, the
only course of action open to Branch 10. It was, therefore, a funda-
mental cause of the strike and a substantial factor in its precipita-
tion. At the time of the hearing a. substantial number of the strikers
had not been reinstated, nor had the respondent ceased its unfair
labor practices. The strike was still a current labor dispute at the
time of the hearing.
We find also that the respondent, by its attempt to discredit Branch
10 by forcing its employees to sign a repudiation of an article pub-
21 National Labor Relations Board V. Jones & Laughlin Steel Corp ., 301 U. S. 1.
22 94 Fed. ( 2d) 862 (C. C. A. 2nd), enforcing the Board 's order in 2 N. L. R. B. 626,
cert. den. 304 U. S. 576.
BERKSHIRE KNITTING MILLS 269
lished in a publication of that organization as described above, by
the attendance and participation of its foreman, Wentworth, at the
meeting of September 12, by its refusal in September to meet with
representatives of its employees solely because those representatives
were not employees, and by other acts described in this section, has.
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
D. The strike of 1936
The Association became active at once upon the announcement of
the calling of the strike by the Federation on September 26, 1936.23
It circulated a petition on the first 3 days of the week in which the
strike was to commence.24 This petition is addressed to the manage.-
ment of the respondent and does not contain the name of the Asso-
ciation. Werner, however, testified that the idea of initiating the
petition originated with him and that the work of circulating it was
performed by members 'of the Association. Its circulation was
clearly an Association project.
About 4,500 signatures were procured on the petition. They were
procured in the plant, openly, on company time. Werner merely told
certain employees to enter the plant and solicit the signatures, and
they did so, although such activity was clearly in violation of the
company rules. No attempt to prevent the obtaining of names was
made by any supervisory official, although several foremen, who tes-
tified at the hearing, knew that the petition was being passed around.
Employees entered their departments to,do so, although they had no
permission to be there. One foreman testified that he did not believe
it was necessary to tell his superiors about this 'activity because they
were going to receive the petition anyhow. In fact, Hemmerich ad-
mitted that he knew that the petition was being circulated.
The work of bringing the petition to the attention of the workers
in the plant was done during the first shift by employees on the
second, and vice versa. While no employees left their work to circu-
late the petition, those who were primarily responsible for obtaining
23 As stated above, the strike did not begin until October 1, 1930.
24 The petition read as follows :
wromssiNG, PA., September 28, 1936.
To the Management of Berkshire Knitting Mills:
We, the undersigned employees of Berkshire Knitting Mills , of Wyomissing Penna.,
do desire to continue at our work without interruption as long as business orders
warrant operation of our plant.
Pursuant to this desire, we petition you to take all necessary steps to prevent any
act of intimidation, violence or any act whatsoever designed or intended to prevent
our entrance to the plant, or designed to prevent our uninterrupted work.
Fearing that outside interests are about to attempt to close down our plant and
encourage, a strike which will put a stop to our income, we hereby declare that such
action is against our wishes.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the signatures were actively supported by foremen lied superin-
tendents who were at work. In cases where knitters had been un-
successful in inducing employees to sign, foremen took the blanks and
went through the aisles a second time in order to secure better results.
Foreman Wentworth went to the end of each aisle and warned' em-
ployees to sign. Wentworth, as he himself testified, told the em-
ployees that "they could sign it if they wanted to work; if they didn't
want to work there, don't sign the petition." He also admitted that
he told this to the employees "collectively"; and that he spoke in a
voice loud enough to be heard by all.
The signed parts of the petition were presented to Hemmerich at
various times on the 3 days on which it was circulated. The re-
spondent replied to the petition by a letter addressed to all its em-
ployees, and dated September 29, the second day on which the
petition was circulated. This letter was posted throughout the plant.
It referred to the petition, "signed by an overwhelming majority of
our employees." 25 It also contained the following language:
In this situation, we assure all employees who have by their
petition pledged themselves to stand by the management, that
everything within our power and resources will be done to
protect their right to work without intimidation by outside inter-
ests, and that, if necessary, adequate protection will be afforded
to protect them against unlawful molestation in getting to and
from their work.
In this connection, we urge everyone to report every case of
intimidation or violence immediately to their department head.
The activity of foremen and supervisors during the period pre-
ceding the commencement of the strike was not limited to the obtain-
ing of signatures to the petition described above. On September
30, in the afternoon, a foreman and machinist in the seaming depart-
ment turned off the power and permitted Werner to address the
employees, urging them not to strike and warning that those who
walked out would not get their jobs back. Several foremen asked
employees under them whether they intended to join the strike.
Employees were also told that they need have no fear about coming
to the plant and that the respondent would supply protection.
The distribution of a leaflet by the Association, immediately prior
to the commencement of the strike, is described above in Section
w In fact it is doubtful that a majority of the 6,000 employees had signed the petition
at the time that this letter was circulated. Of the 4,500 signatures a substantial number
must have been secured on September 30, as well as on September 29 after the letter was
posted. However, Hemmerich undoubtedly had good reasons to believe that an "over-
whelming majority" of the employees would sign the petition, in view of the methods
used to procure the signatures.
BERKSHIRE KNITTING HILLS 271
III B. This leaflet was entitled "Questions for the Hosiery Union
to Answer." It asked questions regarding, among other things, the
source of the Federation's income, the manner in which its money
was spent, and the reason for alleged poor working conditions at
plants which the Federation had unionized. It also asked whether
the Federation had ever accepted money from one group of manu-
facturers to injure the business of another group. Werner stated at
the hearing that the questions were asked solely because the Associa-
tion wanted to know the answers, and that the leaflet was not in-
tended to carry any implications of wrongdoing by the Federation.
He admitted, however, that the Association made no attempt to
secure the desired information from the Federation directly. He
also admitted that he had no ground for the. implications of wrong-
doing which the leaflet, despite Werner's denial, obviously carried.
Thus the Association, a tool of the respondent, issued a vicious and
unfounded attack on the Federation, and the respondent, as found
above, assisted in the distribution of that attack.
The strike which started on October 1, 1936, was an exceedingly
bitter one. The plant did not shut clown, but continued to operate.
On the first day a picket line numbering about 3,000 persons sur-
rounded the plant. There were 1,200 to 1,500 on the picket line on
October 2, and thereafter the number varied, reaching a high point
of 6,000 on December 18. After that date there were from 50 to 500
pickets for some time, until the number started gradually to decrease.
The picketing was not discontinued until the end of August 1937.
The picket line was substantially augmented, particularly during the
first 2 months of the strike,, by employees from other mills in the
vicinity, as well as from mills in Philadelphia and New Jersey.
When the strike was commenced, the Association continued its
activities. Within a few days after October 1, Werner, its president,
at his own request, was relieved by the respondent of his regular
duties so that he could carry on the activities described below in
connection with the strike. He was permitted to put in 8 hours of
work at any time that he chose over a period of 16 hours each day,
and he was engaged during this period in straightening needles rather
than in work as a knitter. He was not required to punch the time
clock regularly, but was paid, during this period, at his regular
contract rate.
During the 2 or 3 months that he was permitted to depart from
his usual duties and hours, Werner spent most of his time in the
Association office, at the respondent's telephone exchange, or in the
respondent's garage, where clubs were kept for the use of employees.
His duties included directing the activities of the Association, assist-
ing employees through the picket lines, and supplying them with
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clubs for this purpose. He was seen regularly at a desk in the re-
spondent's employment office. According to Hemmerich, part of his
duties at this time were to represent the Association and to confer
with employees going through the picket lines.
On October 15 the Association sent out a letter to employees in
which those not working were told to "hurry back to work to safe-
guard your job." About 1 month later, the Association started to
employ persons to visit the homes of employees who were not working
to urge them to return. Some of this work was done by employees
who would otherwise have been working at the plant. Werner did
not ask the respondent to excuse these men from their work. A total
of $770.73 was expended by the Association for this "missionary"
work, which constituted one of its chief activities during the strike.
The respondent was no less busy than the Association during the
strike. Branch 10 held a meeting in the afternoon on Sunday, April
4, 1937, at the Odd Fellows Hall in Reading, for the purpose of induc-
ing some of the employees who were working in the mill to join the
ranks of the strikers. By visiting a selected group of employees prior
to the meeting, its representatives had determined who desired to
attend and had given to these employees cards of admission. The
meeting was strictly limited to those who presented such cards. Be-
fore the meeting started, Isaac Witman, superintendent of the legging
department, was seen to enter the building and proceed upstairs to the
recreation room on the floor above. The Odd Fellows Hall is so con-
structed that a person sitting at the window in the recreation room
can see the street in front of the entrance to the building, as well as
the opposite sidewalk, but cannot see the sidewalk next to the build-
ing. Witman sat at the window where he could be seen by persons
on or across the street. While he was there several employees who
wished to attend the meeting drove up in a car. They called Payne,
an official of the Federation, over to the car and told him they would
not get out to go into the meeting as long as Witman was at the
window. The meeting was held with a limited number of employees
present and had no results of any kind. When the meeting ended,
Payne instructed those who had attended to walk close to the building
as they were leaving, and thus avoid being seen by Witman.
The financial secretary of the Odd Fellows Lodge testified for the
respondent that Witman had been a member of the Odd Fellows since
1910. No witness, however, gave any explanation of Witman's osten-
tatious presence on the particular afternoon in question. Witman
did not testify at the hearing. There can be no doubt that his
presence in an easily visible position on that afternoon had an in-
timidating effect on those who attempted to attend the meeting. We
find that it was intended to have that effect.
BERKSHIRE KNITTING MILLS 273
There is a great deal of conflict in the evidence as to the extent to
which the pickets engaged in violence. On one occasion a group of
strikers engaged in "lie-down" picketing, in which they lay silently
on the sidewalk in front of one of the main entrances to the plant, so
that those who wished to enter the mill had to walk over their bodies.
The record shows that there were several riots at the plant gates,
during the course of which State police were summoned, and that em-
ployees going to work were both the object and the source of missiles
of various descriptions. The violence which accompanied the strike
was not confined to the vicinity of the plant. Houses and automo-
biles in Wyomissing, West Reading, and the city of Reading were
damaged.
On the first day of the strike, the State police were summoned by
borough officials to quell a riot. They took charge of the situation the
following day, and remained in the vicinity until November 17. On
several occasions thereafter, they were called in to handle particular
disturbances as they arose. Following their withdrawal on Novem-
ber 17, the police of Wyomissing and West Reading, the two boroughs
in which the respondent's plant is situated, remained on duty. By
January 8 it was felt by the borough officials that the borough police
were inadequate to handle the situation and special county deputy
sheriffs were sent to the plant in large numbers.
Special deputy sheriffs first appeared at the plant on October 1,
the clay on which the strike commenced. On that day, Cook, the
sheriff of Berks County, sent 20 deputies to the plant. Thereafter,
until January 8, 1937, there were four deputies on constant duty. Up
to some time in DecemPer 1936, these deputies, including those who
were at the plant on October 1, 1936, were paid for by the respondent,
at the regular rate of $5 per day. Starting on January '8, 1937,
deputies were used in larger numbers at the plant. Approximately
40 were kept in the vicinity at all times up to the end of June 1937;
and during March the number varied between 40 and_ 60. From De-
cember 1936 to March 11, 1937, these men were paid for by the county.
On March 11, however, the treasurer of the county refused to honor
any more bills for such deputy sheriffs, partly because the amount of
money set aside in the county budget for the salaries of deputies was
being rapidly exhausted; and partly because an investigation made on
his behalf had persuaded him that it was not necessary to keep so
large a force at the mill. As a result, at a conference held on March
11, between the county commissioners and Wellington M. Bertolet, the
respondent's attorney, the latter agreed to advance whatever money
was necessary for the salaries of deputies in the future. Thereafter,
the pay roll for deputies was sent regularly to Bertolet, whose checks
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefor were deposited in the name of Jacob N. Fidler, special
deputy sheriff, in the Berks County Trust Company. There is con-
flict in the testimony as to whether the deputies were paid by cash or
by check; but it is conceded that they were paid from this account.
It is also conceded that Bertolet was acting in this platter for the-
respondent.
The deputies continued at the plant until June 30, 1937. They
were then withdrawn because of a Pennsylvania statute which went
into effect after that date, forbidding private contracts with a sheriff
for the use of deputies.
In addition to paying the salaries of the deputies as described
above, the respondent at all times furnished them with meals at its:
cafeteria. Another expenditure by the respondent at this time was.
that of several thousands of dollars to maintain borough police at
the plant.
The evidence shows that the activity of the deputies was by no.
means confined to the maintenance of order at the plant. Thus, on
one occasion in January, one deputy remarked to Charles E. Rambo,,
another deputy, on the way to the plant, "Things are getting
quiet . . . watch me." When they arrived at the plant, the
first deputy started swinging his club back and forth. A riot ensued,
which was among the worst which occurred during the strike. The
evidence also shows that deputies made a practice of throwing stones^
from the millya.rd out among the pickets. On one occasion, the
deputies and the borough police conducted a raid on the headquarters;
of Branch 10, in which several strikers were severely beaten. One
of the leaders in this attack was one Neidig, burgess of West Reading,.
who was also an official of the Narrow Fabrics Company.
Repeated efforts were made by Sheriff Cook and others to procure
a return of the State police after their removal on November 17. A
meeting of employees was held in the Recreation Hall, at which
Werner presided, for the purpose of organizing a campaign to secure-
the return of the State police. Employees working at the mill were
told by their foremen to attend. Cook addressed the meeting and.
urged the Association to induce civic bodies to put pressure on the
Governor of Pennsylvania. Werner also spoke, saying that forces
should be organized to go out and assault the strikers and drive them
away. He made it clear, however, that those present should not give-
the impression that he had told them to attack the strikers ; but
merely that "I said it could be done."
Another attempt to secure the return of the State police was made
by means of a petition addressed to the Governor, which was circu-
lated in the plant in December, and was signed by 4,771 persons dur--
BERKSHIRE KNITTING MILLS 275
ing the 2 days that it was circulated. Employees were told to sign
by their foremen. One employee testified that he was told that each
department was responsible for the employees working in that de-
partment. Thus the procurement of signatures was carried out in
a systematic fashion. No one at the hearing was able to state how
the petition originated. , One witness who was on the, committee
which went to Harrisburg on December 22 to present the petition
to the Governor, testified that he was paid for time lost in so doing.
He did not know how the committee of which he was a member was
selected.
We have already mentioned the fact that at various conferences
with Branch 10 prior to the strike, the respondent threatened to move
its plant. Hemmerich testified that the respondent always considered
the possibility of having to move its plant elsewhere, and that it was
a regular practice on his part to tell anyone who might be interested,
including citizens of Reading, groups of manufacturers, and repre-
sentatives of Branch 10, that the respondent might have to move its
plant if conditions were not corrected. The fear created by this
persistent campaign was brought to a head by the respondent during
the strike. Within a month of its commencement, the respondent
started moving machinery out of its plant. It is conceded that this
machinery was obsolescent and had not been used for 11/2 or more
years. Hemmerich testified that it was felt that October 1936 was
a good time to move it. None of the 100 to 200 machines dismantled
at this time were ever put in use by the respondent elsewhere.
Nevertheless, the respondent saw fit to issue a statement which read
in part as follows :
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.
Hemmerich refused to state how the last sentence above quoted
affected those who were out on strike.26
The respondent paid for all damages sustained during the strike
by employees who continued to work at the mill. It was generally
known that the respondent would pay for such damages, although
it never made any official announcement to that effect. The practice
was to report damages to Irvin P. Noll, the respondent's traffic man-
ager, who saw to it that they were repaired at the respondent's ex-
'6 The Association also utilized this incident in leaflets published at this time , driving
home to the workers the threat of losing their source of employment altogether.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pense. These expenses included (1) $4,532.35 for damages to auto-
mobiles; (2) $501.79 for damages to personal property, such as
-clothing; (3) $403 for personal injuries; and (4) $7,145.27 for dam-
ages to houses and other real property. Insurance which the re-
spondent took out immediately prior to the commencement of the
strike secured to it, reimbursement for most of the second and fourth
of these items. In all, it was reimbursed to the extent of $7,300.15
out of a total of $12,582.41.
The respondent's conduct in fighting the strike called by Branch
10 must be considered together with its attitude toward attempts to
settle the dispute amicably. The respondent admitted that it re-
fused at all times during the strike to deal in any manner with
representatives of the Federation. Letters sent by that organization
during the strike were ignored. Attempts made by representatives
of the State and Federal Government to bring the two parties to-
gether were consistently rejected. Among those who attempted to
arrange conferences between the respondent and Branch 10 were
Charles Kutz, a mediator in the Pennsylvania Department of Labor,
one Moser, chief the Pennsylvania Division of Conciliation and
Arbitration, and one Williams and Anna Weinstock, of the United
States Department of Labor. Hemmerich testified as follows con-
cerning his conversation with the latter when she called at the plant
in April 1937 after a telephone conversation between Edward
McGrady, United States Assistant Secretary of Labor, and Henry
Janssen, vice president and treasurer of the respondent :
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.
Q. Did you show her the picket line in front of your plant?
A. If she saw it. I did not show her the picket line.
When Governor Earle of Pennsylvania requested the respondent
to send representatives to a conference at his office, such representa-
tives were sent. I hey refused, however, to meet with any repre-
sentative of the Federation, and insisted that the only matter which
BERKSHIRE KNITTING MILLS 277
they were interested in discussing with the Governor was the sending
of State police to the plant for the purpose of protection .27
Only one step was taken by the respondent which might be con-
strued as dealing with the matters in dispute. The Governor re-
quested the Federation and the respondent to submit their views
concerning the issues involved in the strike. The Federation com-
plied on October 5, by filing the 12-page brief which has already
been referred to.28 The respondent sent it reply to this brief on
October 9 in which it denied or explained the various contentions
made by the Federation. At no other time, however, did the re-
spondent allude in any way to matters which had brought on and
were causing the continuance of the strike.
It was conceded at the hearing that the respondent had refused
at all times to deal with the Federation during the strike and that
it made this position clear to anyone who attempted mediation.
Hemmerich gave three reasons for this attitude: first, that the Fed-
eration had canceled the contract of 1934; second, that it had dis-
seminated lies about the respondent; and, third, that it represented
only a small minority among the respondent's employees. He stated
also that the third of these reasons was the most important. It is
clear that the first two do not bear close inspection. The 1934 contract
was canceled within a few months of its consummation, and the
respondent negotiated with Branch 10 for 2 years following that
cancelation.
As to the second reason, the record persuades us that it was not in
fact a serious consideration. In its brief the respondent notes, as
evidence of the lying tactics of Branch 10, the incident in the pairing
department described in Section III C above, an incident involving
an employee who testified concerning her wages in a court pro-
ceeding, and the allegations made in general by the Federation con-
cerning the break-down of standards at the respondent's plant. As
to the first of these we have already pointed out that the only mis-
statement made by the Federation was not considered of sufficient
importance to warrant refutation by the respondent; and that in
fact the respondent secured the repudiation in' order to spread mis-
27 At the end of one of the conferences with the Governor , the latter suggested that
the respondent's officials go with Bashore, secretary of the Pennsylvania Department of
Labor, to the latter's offices to see whether any settlement was possible . Hemmerich
testified , on cross-examination by counsel for Branch 1. 0, 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.
28 Section III C, skpra.
278
i
DTCISIQNS of NATIONAL LABOR RELATIONS BOARD
representations Jon its own part. As to the second it appears that,
in fact, the affidavit published by the respondent, purporting to
deny statements attributed to the affiant in a Branch 10 leaflet, con-
tained no denial at all. Finally it is difficult to believe that over-
statements or even misrepresentations of the facts concerning the
break-down of ,%tanclards which the respondent admits to have existed
at least in part, could have caused it to refuse to deal with an organi-
zation whose aim was to discuss those very matters.
There is no doubt that at the time of the strike, Branch 10 repre-
sented only a small minority of the respondent's employees. This,
however, was no bar to negotiations had the respondent chosen to
engage in them, particularly in the absence of any substantiated
claim by another organizations to majority representation. The re-
spondent had been willing to deal with both the Association and the
Federation prior to the strike, when neither represented a majority
of the employees. It remains to be seen why the respondent did not
choose to engage in negotiations with the representatives of its strik-
ing employees.
As early as 1933, the respondent showed that it preferred to deal
with an organization limited to its own employees, without affiliation
with a national body. That preference was subsequently expressed
by the respondent's support and domination of the Association, the
open and declared enemy of the Federation. Hemmerich stated on
the - stand, as noted above in Section III C, that this desire to deal
only with employees existed during the negotiations prior to the
strike. We have found above that by September 26, 1936, the con-
duct of the respondent had forced the Federation to take extreme
measures to maintain its existence at the plant, and .that this conduct
drove the Federation to the use of its last weapon, the strike. It is
clear that the respondent, having brought on the strike by its unfair
labor practices, decided that it was now in a position to attempt to
extirpate the Federation entirely from among its employees by isolat-
ing its members and representatives and refusing to recognize their
existence.
The strike was extremely costly to the respondent. The account
of its expenses during the strike shows that it spent a net total of
$62,335.57. In addition. it spent the sum of $7,348.37 for which it was
reimbursed under the insurance policies covering some of its expenses.
Included in the net total are the sum of $20,199.11 for the salaries of
deputy sheriffs, $934.99 for meals served to the deputies, $4,257.85
which was paid to the borough of West Reading for extra police and
.extra time spent by regular police, and $5,422.44 which was paid to
Textile Machine Works for special police who acted in cooperation
-with the borough police.
BERKSHIRE KNITTING MILLS 279
Had the respondent 's purpose not been the denial of the rights of
its employees to self ,organization by extirpating the Federation, but
merely the elimination of the extremely severe incidents of the strike,
it could have had no objection to cooperation with the Federal and
State officials who had the same purpose in mind. It never afforded
the latter the opportunity of ascertaining whether a settlement of the
strike was possible. Negotiations between the respondent and Branch
10, once begun , might well have resulted in a reasonable settlement
of the strike or even in a settlement entirely favorable to the respond-
ent. Such a settlement , however, would have meant the continued
existence of the Federation as a. factor among the respondent's em-
ployees. It is clear that it was this continued existence which the
respondent intended to prevent . Having, by creating and maintain-
ing the Association and by other acts interfering with the right of
the employees to self-organization, reduced the number of employees
supporting Branch 10 from a majority at the time of the election in
1933 29 to a minority at the time of the 1936 strike, and having driven
Branch 10 to its last defense, the respondent was determined at all
costs to eliminate that organization entirely from among its em-
ployees, thereby achieving the complete frustration of their self-
organization. It was willing to reimburse the non-striking employees
for damages done to their homes. But it was not willing to take the
obvious steps which might have ended t:he situation from which that
damage resulted. It was willing also to spend vast sums for the
"protection" of its own property. But it was not willing to adopt
other measures which would have cost it nothing, but which would
have meant the continued existence of Branch 10 at its plant. Such
conduct can only be explained by the respondent's uncompromising
hostility to the Federation , which was expressed continually from
1933 on, and its persistent course of unfair labor practices designed
to defeat the self-organization of its employees.
The respondent in its brief points out that the complaint in this
proceeding does not allege that the respondent engaged in unfair
labor practices within the meaning of Section 8 (5) of the Act, which
provides that an employer shall bargain collectively with the repre-
sentatives of a majority of its employees in an appropriate unit. It
is true that no such unfair labor practice on the part of the respondent
appears in the record , since Branch 10 did not and does not claim
that at the commencement of the strike it represented a majority of
the employees in an appropriate unit. Nevertheless, acts or omis-
sions, which are not of themselves condemned by Section 8 (2), (3),
(4), or (5 ) of the Act , may fall within ' the terms of Section 8 (1)'
when the intent which motivates them is an intent to interfere with
29 See Section III A, sabre.
247384-40-vol. 17-19
280 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
the right of employees to ' self-organization, when they are one ' of the
steps in a course of conduct intended to interfere with that right, and
when they result in such interference. Furthermore, the sharp
change in the respondent's treatment of Branch 10, after September
1936, must be contrasted with its attitude toward the Association at
that time. The respondent had been dealing with both organizations,
although neither represented a majority of its employees. When the
crucial point in the relations between the respondent. and Branch 10
arrived, the former cut off all negotiations with the latter, but con-
tinued to deal with the Association. There can be no doubt that•the
respondent's sudden refusal to meet with any but its own employees,
in September 1936, and its rejection, after October 1, 1936, of all at-
tempts to settle the strike which began on that date, following a
persisting and continuing course of unfair labor practices, were mo-
tivated by its fixed determination to drive Branch 10 from its plant.
No other explanation fits the circumstances. The respondent's con-
duct in, pursuing that fixed determination, constituting as it did part
of a continuing course of unfair labor practices, designed. to crush
the self-organization of its employees, was interference with their
right to such self-organization, and was, as such, an unfair labor
practice within the meaning of the Act.
We find that the respondent, by its efforts during the strike' to
destroy the Berkshire Division of Branch 10, by the conduct of one
of its supervisors in keeping a meeting called by Branch 10 under
open surveillance, by its threats through Werner and the Association
which it dominated, that strikers would not be permitted to return to
work, by its attempts through the Association to discredit the Feder-
ation, by its threats to move its operations elsewhere, and by other
acts, has interfered with, restrained, and coerced its employees in the
exercise of the. rights guaranteed in' Section 7 of the Act. We find
further that the strike which was commenced on October 1, 1936, was
prolonged by the -unfair labor practices of the respondent described
above.
E. Discriminatory refusals to reinstate
The complaint alleges and the answer denies that the respondent
refused to reinstate 303 named employees, listed in Appendices A,
B, and C, who ceased working as a result of the strike, because of
their membership in Branch 10 and because of concerted activities
for the purposes of collective bargaining. The three . employees
named in Appendix C are also alleged in the. complaint to have
been. discriminatorily discharged by the respondent. They are dis-
cussed in Section III F, below. - The 18 employees named in Ap-
pendix B applied for reinstatement. Their cases are discussed in
this section. The balance of the employees named in the complaint,
BERKSHIRE KNITTING MILLS 281
as above described, are listed in Appendix A. The record does not
show whether any of these employees made application to the re-
spondent for reinstatement.
Beginning in January 1937, strikers started to return to the plant
and to apply for reinstatement. About the middle of September
1937, at a meeting of Branch 10, those who were still on strike were
told that strike benefits could not be continued very much longer,
and that, if they desired to do so, they should apply for reinstate-
ment to their old jobs. Strike benefits in fact ceased at the end of
November. As a result of these instructions, a large number of
strikers applied for reinstatement in September, October, and No-
vember. The respondent had been taking on men during the first,
half of 1937. It ceased hiring for the most part by the end of
August 1937, just before the largest number of strikers attempted
to return to work.
The record shows that even before the strike started, foremen of
the respondent let it be known that those who went on strike would
not be returned to their jobs. During the strike the respondent
took pictures of the picket lines. Although some strikers were later
reinstated, Hemmerich refused at the hearing to furnish a list of
such persons.
Sometime in January the respondent sent to many of its em-
ployees who were not working a letter to the effect that in view of
their prolonged absence from the mill their names were being re-
moved from the pay roll. The respondent found it impossible to
discover which or how many employees received such letters. It
is conceded that the sending of letters of this type is not in accord-
ance with the respondent's usual practice, since any employee who
is absent from the mill without excuse is automatically dropped
from the pay roll. We can only conclude that the purpose of send-
ing this letter was to intimidate those who received it. One em-
ployee who received such a letter wrote in reply that she was absent
from the mill because she was on strike, and that she wished to
return to her work when the strike was concluded. She received
no reply.
Employees who applied for reinstatement during 1937 saw Arthur
Krummenoehl in the respondent's employment office. Krulnmenoehl
stated at the hearing that the respondent had no record of the ap-
plications for employment made during this period. The notes
which were taken by a stenographer at the interviews held by Kruln-
menoehl have been destroyed.30 Sometime in January a special
$0 The respondent was also unable to produce a record of employees who ceased work on
October 1 , 1936 . It is almost incredible that the respondent had no record of its pay
rolls for this period , particularly in view of other data which it found itself able to
produce.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
system for interviewing applicants was established. Those who
applied for reinstatement were told that they would have to appear
before a committee of employees who would decide which appli-
cants were acceptable to it. The testimony of Krummenoehl and
Hemmerich as to how this committee was set up, how it operated,
and what its purposes were, is extremely vague. They stated that
several employees within the plant complained about the reinstate-
ment of certain strikers who had engaged in objectionable conduct
on the picket lines and they refused to work with such persons.
Consequently, it was suggested that a committee be set up to inter-
view all applicants and to pass on whether their return to work
would cause 'an unpleasant situation within the mill.. According, to
Hemmerich, he did not order the establishment of this committee,
but he'_ sanctioned the arrangement once it was made. Krumme-
noehl testified that in permitting the committee to occupy a room
next to the employment office, and in following its recommendations,
he acted upon instructions from Hemmerich. Neither testified as
to how the committee was selected. So far as anything appears
in the record, six employees merely walked into a room next to the
employment office and constituted themselves a committee; and no
one questioned their authority to do so. Whether Hemmerich or-
dered the establishment of the committee or sanctioned the estab-
lishment after it had occurred, it is clear that the committee acted
for the respondent and had an important voice in determining which
of the strikers were to be reinstated.
No person who had served on the committee of six testified at
the hearing. Hemmerich testified that in formulating its recom-
mendations, the committee would not have been justified in refusing
to pass favorably on an applicant merely because he had been on
the picket line. He stated that the proper criterion was whether
the applicant had interfered with employees on their way to and
from -work. He attempted to give the impression that he had ex-
ercised some sort of appellate control over the decisions of the com-
mittee, although he also stated that applicants not passed by it were
not employed. It appears that such of the striking employees as
applied for reinstatement while the committee functioned were
referred to it.
The questions asked by members of the committee, as described
by witnesses for the Board as well as a witness for the respondent,
throw some light on the attitude taken by that body. In addition
to asking Bruce Snyder, who appeared and testified for the respond-
ent, whether he had taken part in the damaging of houses, they
asked him whether he had been on the picket line, whether he had
joined Branch 10, and whether lie had gone to meetings of that
BERKSHIRE ![KNITTING -MILLS 283
.organization. Snyder told them he had been ' on the picket line
but not often. He had joined Branch 10 but had not gone to meet-
ings. Snyder was accepted by the committee. Witnesses for the
Board testified they were asked who they thought was going to
win the strike, which side they favored, and whether they had ever
been to Branch 10 headquarters.
Three employees, Valentine Parenti, Frank Vecchio, and James
Thomas Ciervo, testified that they were refused reinstatement after
being,interviewed by the committee of six. We consider now the
cases of the first two of these, both of whom were alleged in the
complaint to have been discriminatorily refused reinstatement.3'
Frank Vecchio began working for the respondent in November
1934. He went out on strike on October 1, 1936. On June 16, 1937,
he applied for reinstatement, and saw Witman, superintendent of the
legging department. When Witman asked him whether he had been
on the picket line, Vecchio said he had not been, although this was
not the case. He also said he was not a member of Branch 10, al-
though he had joined Branch 10 in October 1936. Witman told
him, however, that the respondent had no room for him. Vecchio
saw Witman again a week later, and as a result of this visit Vecchio
appeared before the employees' committee a few days later. In re-
sponse to questions put by a member of the committee, Vecchio stated
that he was not a member of. Branch 10 and that he had not been
on the picket line. After being dismissed by the committee, Vecchio
waited for about half an hour, after which time he was informed by
Krummenoehl that there was no work for him because the season
"was''slack. Vecchio never applied again, and he was never recalled
by the respondent. At the time of the strike he was earning about
$20 a week. He has had various jobs since October 1, 1936, none of
which, however, was equivalent to his former employment with the
respondent.
Valentine Parent began working for the respondent on Septem-
ber 18, 1934. On October 1, 1936, he attempted to enter the plant
but could not do so. Thereafter he remained away from work. He
joined Branch 10 about a month later, and went on the picket line.
During the first week in June 1937, he applied for reinstatement.
He saw Seidel, foreman in the legging department, and Witman.
He signed an application for reemployment and left. Thereafter,
at intervals of 2 weeks, he saw Witman four or five times. Each
time he was told there was no work for him. The fifth time he
applied, Witman sent him before the committee of employees. Like
Vecchio, he told the committee that he was not a member of Branch
10, and that he had not been on the picket line.. He waited 15
31 Ciervo is not among those named in the complaint.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minutes after being dismissed by the committee and was then in-
formed that his story was unsatisfactory. He walked out and did
not return again.
Neither Parenti nor Vecchio was arrested during the strike.
There is nothing to show that either was guilty of any improper
conduct on the picket line or elsewhere.
The respondent contends in its brief that Vecchio and Parenti
were rejected by the committee because they lied to it in denying
that they were on the picket line. Vecchio and Parenti admitted
at the hearing that they had so lied, believing that if they told the
committee that they had been active pickets they would have been
rejected. There can be little doubt that, as the respondent contends,
the committee believed these men to have been actively engaged in
picketing. We believe that the rejection was based on this fact
rather than on any dislike of falsehood.
We find that the respondent has discriminated in regard to the
hire and tenure of employment of Frank Vecchio and Valentine
Parenti, thereby discouraging membership in Branch 10, and has
thereby interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.32
The committee of six ceased to be active when the respondent
stopped hiring employees after the summer of 1937.
Certain other employees testified that they had applied to the
respondent for reinstatement. All of them went on strike on or
after October 1, 1936, and none was reinstated by the respondent.
Their names, together with the time at which they applied for rein-
statement, are as follows :
Arnold Augustine------------------------
Leonard Bittle-------------------------_
Robert Cramp---------------------------
Melvin Haas ----------------------------
Catherine Hahn-------------------------
William Hartman----------------------_
Richard Himmelberger-------------------
David Horn-----------------------------
Ralph L. Houck 33-------_--------------
Frank Kogut---------------------------
Lorna Ludwig--------------------------.
Earl Francis Musket --------------------
Nicholas Rapino------ -------------------
Earl A. Spayd---------------------------
Bernard Symanowicz -------------------_
Edward Thiele-------------------------_
Middle of September 1937.
Middle of August 1937.
Middle of July 1937.
On or about October 1, 1937.
Latter part of September 1937.
September 1937.
September 1937.
On or about September 21, 1937.
August or September 1937.
September 1937.
Middle of July 1937
First half of September 1937.
September 1937.
Middle of October 1.937.
On or about June 1, 1937.
' National Labor Relations Board v . American. Mannfaeturin Company, 309 U. S. 629.
83 The record does not show the date on which Houck applied for reinstatement.
BERKSHIRE KNITTING MILLS 285
We must consider at this point the reasons why the respondent re-
fused to reinstate the above-named employees.
Robert Cramp, David Horn, and Lorna Ludwig were convicted
of violating a borough ordinance as a result of their participation in
the lie-down picketing described above. They were each fined $10.
The last named paid her fine at once; the other two were committed
to jail for 30 days in default of payment of the fine, but were re-
leased 9 to 17 days later, on paying the fines.
Richard Himmelberger and Leonard Bittle were likewise found
guilty of an ordinance violation for participation in the lie-down
picketing and received similar sentences. In addition, Himmelber-
ger was fined and paid $10 for another violation of a borough
ordinance. This was because he "did at various times during the
morning, chill `Gas Man' directed at the Police as the patrol car
passed, thereby interfering with the Police Officers and thereby wil-
fully causing a boisterous noise." Leonard Bittle was also arrested
aildpleaded- guilty to assault and resisting an officer, for which he
was fined $25 and placed on probation for 1 year.
Ther record does not show that it was because of these convictions
that the respondent refused reinstatement to the five employees in
question. There is no evidence that the respondent had knowledge
of the convictions. In fact, Ludwig was told when she applied that
she could not be reinstated because there was no vacancy for her,
and Himmelberger was informed that nothing could be done for him
because he had broken his apprenticeship. We are persuaded that
the denial of reinstatement to Bittle, Cramp, Himmelberger, Horn,
and Ludwig was not motivated by their violations of the borough
ordinances.34
. The respondent had ceased hiring new employee's before many of
the striking employees named above applied for reinstatement. At
the time all these applications were made, however, the respondent
had hired `many new inexperienced workers who had not been in
the respondent's employ at the commencement of the strike, to take
the places of the employees who had gone out on strike. We are
satisfied that the above-named striking employees would have been
reinstated at the time they applied for reinstatement, had the re-
spondent, after application was made, dismissed so many of the
persons hired since and not in its employment at the commencement
of the strike as it then had in its employment. This the respondent
refused to do. There is nothing iii the record to show that the
respondent's refusal of such reinstatement was based upon grounds
84 The effect of the convictions above described upon our order for reinstatement is
discussed below in Section V, "The remedy."
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other than the desire not to displace persons hired since grid-not in
its employment at the commencement of the strike.
Under Section 2 (3) of the Act, the 16 persons listed above, having
ceased work in connection with a current labor dispute and as a
consequence of the respondent's unfair labor practice, remained em-
ployees for the purposes of the Act. We have held that where, as
here, a strike has been caused by the respondent's unfair labor prac-
tices, the striking employees are entitled to their former positions
upon making application therefor.35 The failure of the respondent
to reinstate the 16 employees listed above to the positions to which
they were entitled by displacing, if necessary, persons hired after the
commencement of the strike and not in its employ at the commence-
ment of the strike, in effect and in result discriminated,' and con-
stituted a discrimination concerning hire and tenure of employment
against such employees. Such discrimination discourages union
menibership.36
We find that the respondent has discriminated in regard to the
hire and tenure of employment of the 16 employees listed above,
thereby discouraging membership in Branch 10, and has thereby in-
terfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act. These 16 employees,
together with VTecchio and Parenti, whose cases are discussed above,
are named in Appendix B.
Hahn and Symanowicz, on the above list, were told, at the time
they applied for reinstatement, to return after a time and apply
again. Halm failed to do so and the record does not show,,, whether
Symanowicz did so. We have held above that the respondent dis-
criminated against them in regard to hire and tenure of employment
at the time they applied for reinstatement. The fact that the re-
spondent told them to apply again at a later date does not make its
35 Matter of Jeffery-DeWitt Insulator Company and Local No. 45.5, United Brick and
Clay Workers of America, 1 N. L. R. B. 618, order enforced in Jeffrey-DeWitt Insulator
Company v. National Labor Relations Board, 91 F. (2d) 134 (C. C. A. 4th), cert. den.
302 U. S. 731 ; National Labor Relations Board v. Remington Rand, Inc., 94 F. (2d) S62
(C. C. A. 2d), cert. den. 304 U. S. 576; Matter of American Manufacturing Company, et at.
and Textile Workers' Organizing Committee, C. 1. 0., 5 N. L. R. B. 443, order enforced in
National Labor Relations Board v. American. Manufacturing Company, 106 F. (2d) 61
(C. C. A. 2d).
36 Matter of ,American Manufacturing Company, et at. and Textile Workers' Organizing
Committee, C. 1. 0., 5 N. L. R. B . 443, order enforced in National Labor Relations Board
V. American illan.ufactnring Company, 106 F. (2d) 61 (C. C. A. 2d), -language ..:quoted
infra, footnote 46 ; Matter of Black Diamond Steamship Corporation and Marine Engineers'
Beneficial Association, Local No. 33, 3 N. L. R . B. 84, order enforced in Black Diamond
Steamship Corp. v. National Labor Relations Board, 94 F. (2d) 875 (C. C. A. 2d), cert.
den. 304 U . S. 579 ; Matter of Mol{aig-Hatch, Inc. and Amalgamated Association of Iron.
Steel, and Tin Workers of North America, Local No. 1189, 10 N. L. R. B. 33: Matter of
Western Felt Works, a corporation and Textile Workers Organizing Committee, Western
Felt Local, 10 N. L. R. B. 407; Matter of Denver Automobile Dealers Association, et at.
and Capitol Automotive Lodge No. 606, International Association of Machinists. 10 N. L.
R. B. 1173.
BERKSHIRE KNITTING MILLS 287
refusal to reinstate them at the time of application any less a dis-
crimination, nor is it a reason for our not ordering their reinstate-
ment now. Once the respondent discriminatorily denied them rein-
statement it thereafter rested with the respondent to offer them rein-
statement if it wished to mitigate the consequences of its unfair labor
practices', -
The employees named, in Appendix C are discussed below in Sec-
tion III F. The record does not show that the persons named in the
complaint, other than the employees named in Appendices B and C,
made application for reinstatement, or that the respondent refused
such reinstatement. We will therefore dismiss the complaint with-
out prejudice in so far as it alleges discrimination against the persons
named in Appendix A, in regard to hire and tenure of, employment.
F. The discriminatory discharges
The complaint alleges that the respondent discharged and refused
to reinstate three of its employees, Eugene Moyer, Frank Enck, and
Ernest Epting, because of their membership in and affiliation with
Branch 10 and because they engaged in concerted activities for the
purposes of collective bargaining, thereby discouraging membership
in Branch 10.
Eugene Moyer was employed by the respondent for a few months
in 1931. He was reemployed in August 1933 and worked steadily at
the plant until September 28, 1936, at which time he was employed
as a legger.
Moyer attended the union meeting on Saturday, September 26,
1936, at which the strike vote was taken. He was not at that time a
member of Branch 10 and did not become one until many months
thereafter. At the meeting, during a discussion of the wages being
paid at the respondent's plant, Moyer rose and described his own
earnings. When he had concluded he was asked to give his name,
which he did. On the following Monday, September 28, he arrived
at the plant 10 minutes before he was to start working. He was
greeted by his foreman, Louis Keener, and told that he was not to
continue working because he had talked too much about conditions
,it the mill. Keener referred him to Witman, superintendent of the
leggers, who confirmed what the foreman had said. He suggested
that Moyer find a job somewhere where he liked the working condi-
tions better. Moyer went to the office and received his pay, which was
waiting for him. Since his discharge he has made three unsuccessful
attempts to be reinstated.
The respondent clainms, first, that even if Moyer was discharged for
making the speech, described above, this would not be a discharge
for "concerted activity." Although Moyer was not a member of
288 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD
Branch 10 at the time of his discharge, it is clear that his attendance.
at the meeting and his participation therein at the very least gave
the appearance of sympathy toward and support to Branch 10, and
-that the respondent associated his participation in the meeting with
membership in or activity on behalf of Branch 10. Furthermore, it
is clear that his discharge had the effect of discouraging membership
in Branch 10. The second defense offered by the respondent is.that
Moyer was discharged because he was a dissatisfied and inefficient
worker. Regardless of what the record may show as to reasons, why
the respondent might conceivably have discharged Moyer, his testi-
mony as to the reason for his discharge given him by two supervisors
is entirely uncontroverted. We believe that it shows the true motive
for the discharge.
We find that the respondent discharged Eugene Moyer on Septem-
ber 28, 1936, and thereafter refused to reinstate him because he at-
tended and participated in a meeting of Branch 10. We further
find that-the respondent, by discharging and. refusing to reinstate
Moyer, has discouraged membership in.Branch 10 by discrimination
in regard to the hire and tenure of his employment, and has thereby
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act..
At the time of his discharge, Moyer was earning $21.50 for a 40-
hour week. At the time of the hearing he was employed at another
plant at a salary of $25 for a 40-hour week. He desires to be rein-
stated in his position with the respondent.
Frank Enck and Ernest Epting were both employed as bobbin
boys in the winding department in 1936. Both continued to' work
after the strike began on October 1, 1936. It does not appear whether
or.not Epting was a member of Branch 10. Erick joined Branch 10
in 1933. Sometime prior to Christmas in 1936, Enck and Epting
participated in taking up a collection during working hours to buy
a Christmas present for a foreman, Jacob Gaul. No objection was
raised to this activity on their part. Having completed the collec-
tion, they remembered one of their fellow bobbin boys, Albert Ruth,
who was out on strike, and decided to take up a collection for him
also. In the course of obtaining contributions for Ruth they solicited
at least one supervisory employee, but did not solicit their own fore-
man, Schware. A few days after the collection. was completed, on
December 31, 1936, Schware discharged both Enck and Epting., ,.. He
told them that he was doing so because they had collected money for
a striker, which they had no right to do, since such activity appeared
to give support to the strike.
There is testimony in the record tending to show that both Enck
and Epting failed to attend as strictly to their duties as they might
have. The respondent contends that their conduct in violating plant
BERKSHIRE KNITTING MILLS 289
rules by collecting money during working hours was merely the last
straw which broke their foreman's patience . However, counsel for
the respondent admitted at the hearing that they were discharged
for violating the rules of the company "by collecting monies in the
plant during working hours for the benefit of a striker ." As in the
case of Moyer, the testimony as to the reasons given to those two
employees for their discharge is uncontroverted . Regardless of what
reasons the respondent may assign at the present time, we must
conclude that Enck and Epting were discharged because they col-
lected money for a striker . In view of the fact that collections in
general, although they constituted violations of the respondent's
rules, were not considered grounds even for a reprimand , it is clear
that it was the fact that the collection was for a striker , and that
such conduct was associated with aid to Branch 10 , the striking
union, which motivated the discharges . The respondent , by these
discharges , made clear to Enck and Epting and to its other employees
that any conduct which might be construed as assistance to those' of
their fellow employees who were engaged in concerted activities for
the purposes of collective bargaining would result in the loss of
their positions . The discharges would not have taken place if the
activity of the two employees which led to the discharges had not
tended to give aid to Branch 10. The clear effect of the discharges,
therefore, was to discourage any acts which tended to give such aid.
We find that the respondent discharged Frank Enek and Ernest
Epting on or about December 31 , 1936, because they gave support
to other employees engaged in concerted action for the purpose of
collective , bargaining . We further find that the respondent , by dis-
charging Enck and Epting , has discouraged membership in Branch
10 by discrimination in regard to the hire and tenure of their em-
ployment, and has thereby interfered with, restrained , and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
Epting, up to the time of the hearing , had not secured any employ-
ment since his discharge. Enck had been operating a service station
but had not as yet earned any money. He desires reinstatement to
his former position.
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 A above, have a close, intimate , and substantial
relation to trade, traffic, and commerce among the several States, and
have led and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order it to cease and desist therefrom, and in aid
of such order-,-and-,as, a means of removing. and avoiding the con-
sequences of such practices, we will order the respondent. to take c'er '
tain affirmative action, more particularly described below, designed
to effectuate the purposes and policies of the Act.
We have found that prior to the effective date of the Act the re-
spondent dominated and interfered with the formation of the Asso-
ciation. We have also found that the respondent, after the effective
date of the Act, dominated and interfered with the administration of
the Association and contributed support to it. By such domination,
interference, and support the respondent has prevented the free exer-
cise of its employees' rights to self-organization and collective bar-
gaining. The mere withdrawal of this domination, interference, and
support will, not, •be.suficient to overcome . the. impressions, created, by
the circumstances surrounding the origin and administration of the
Association. In order to effectuate the policies of the Act and free
the employees of the respondent from such domination, interference,
and support and the effects thereof, which constitute a continuing
obstacle to the exercise by the employees of the rights guaranteed
them by the Act, we shall order the respondent to withdraw all recog-
nition from the Association, and to disestablish it as a representative
of the employees for the purposes of collective bargaining,37 and to
cease and desist from giving effect to any contract or agreement
entered into by the respondent and the Association or representatives
thereof concerning wages, rates of pay, hours of employment., or other
conditions of employment.38
The respondent introduced evidence that about 157 persons 'had
been, convicted-?or had pleaded' guilty to the commission.-,of various
offenses in the Boroughs of Wyomissing and West Reading during
the strike. We have already considered this evidence to the extent
that it is relevant to the question of whether the respondent dis-
criminated against certain employees by refusing to reinstate them.
'National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., at at., 303
U. S. 261; National Labor Relations Board v. Pacific Greyhound Lines , Inc., et at., 303 U. S.
272; National Labor Relations Board v. Fansteel Metallurgical Corporation, 306 U . S. 240;
National Labor Relations Board v. Stackpole Carbon Co., 105 F. (2d) 167 C. C. A.
3d) ; National Labor Relations Board v. Griswold Manufacturing Co., 106 F . (2d) 713
(C. C. A. 3d). See Consolidated Edison Company , Inc., of New York, et at. v. National
Labor Relations Board , et al., 30:5 U. S. 197, where the court said : "The continued
existence of a company union established by unfair labor practices or of a union dominated
by the employer is a consequence of violation of the Act and renders ineffective any
order restraining the unfair practices."
as National Labor Relations Board v. Stacl?pole Carbon Co., supra , footnote 37. See
also National Labor Relations Board v. Pacific Creghonnd Lilies, Inc., 91 F. (2d) 458
(C. C. A. 9tb).
BERKSHIRE KNITTING MILLS 291
We consider now the effect of this evidence on the order which should
be made to remedy the effect of the respondent's unfair labor practices.
The records of the Boroughs of Wyomissing and West Reading
show 168 convictions for various offenses during the strike. Twenty-
one of these convictions, however, all of them for lie-down picketing,
were in effect reversed by habeas corpus proceedings. Of the 147
reinainiTig convictions, all but 22 were for lie-down picketing. The
124 persons who were found or pleaded guilty of such conduct were
fined $10 and costs and sent to jail for 30 days in default of payment.
Some paid at once. Others served as much as 17 days before paying.
As to many, the records do not show whether they paid the fine or
went to jail. All but one of the lie-down pickets were sentenced
under borough ordinances, and the other was sentenced under a Penn-
sylvania statute. Seven of the 22 remaining convictions were for
mifior offenses in the nature of disorderly conduct, such as shouting
at the police and loitering on the sidewalk. They resulted in sen-
tences similar to those given to the lie-down pickets, although one
person` was'fined- $25 and costs. Of the remaining 15 convictions, in=
volving 14 persons, the records show that one was charged with mali-
cious mischief to highways, for which he was fined $25 and costs, and
the others were charged with one or more of the offenses of assault
and battery, inciting to riot, rout and riot, unlawful assembly, and
resisting arrest. The record does not show in all cases upon what
charges they were held or pleaded guilty.39
With a few exceptions, the record does not show which of the per-
sons, against whom the convictions discussed above were recorded,
are among the striking employees affected by our order. However,
we consider that the record sufficiently raises the question whether
any of those convictions will disqualify the persons convicted for
reinstatement if they are among the employees to be reinstated.
We cannot concur in the contention that the evidence discussed
above warrants us to deny reinstatement to any of the persons in-
volved who would otherwise be entitled to reinstatement under-our
order. The Board's power of reinstatement is discretionary in nature,
to be exercised in the light of all the circumstances of the case in the
manner best calculated to effectuate the purposes of the Act.
The offenses described above grow out of a strike caused and pro-
longed by unfair labor practices of the respondent. In fact, all but.
22 were for lie-down picketing. ; The exact nature of the other offenses
does not appear. We are unable to find that any one of the individuals
3' The sentences of these persons were as follows : One person was fined costs;'osts ; three
were fined $ 25 and costs ; two were fined costs and placed on probation for 1 year: one
was fined $25 and costs and placed on probation for 1 year; three were fined $50 and
costs and placed similarly on probation ; one was fined an unspecified amount and sentenced
to 60 days in jail ; two were fined $25 and costs and sentenced to 30 days to 1 year in
jail.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against whom convictions have been recorded is not a suitable em-
ployee or that his or her reinstatement would tend to encourage vio-
lence in labor disputes.40 The reasons for ordering the reinstatement
of employees who strike wholly or partly because of an employer's un-
fair labor practices 41 are controlling here and outweigh any detri-
mental effects which might arise from the reinstatement of the
offenders here involved.
We conclude that the respondent's unfair labor practices should not
be imperfectly remedied and that the important national policies of
the Act, which would be fulfilled in this case by the reinstatement of
strikers, should not be imperfectly effectuated, because some of the
respondent's striking employees have violated other laws, where such
violations have already been punished by the appropriate law-enforce-
ment agencies and are not of such a character as to disqualify any of
the strikers from reemployment. '
Under all the circumstances, without condoning the illegal acts of
these persons, and in order to effectuate the purposes of the Act, we
hold that none of the offenses proved to have occurred during the
strike, which are described above, constitutes a bar to the reinstate-
ment of the persons who committed them and who are otherwise
entitled to reinstatement under our order. We shall order the
respondent to offer reinstatement to the 18 employees named in
Appendix B, who were discriminatorily denied reinstatement by the
respondent, and to the three employees named in Appendix C who
were discriminatorily discharged.42 Since the strike was caused and
prolonged by the respondent's unfair labor practices, we shall also,
in accordance with our usual practice, order the respondent, upon ap-
plication, to offer reinstatement to their former or substantially equiv-
alent positions to those employees who went out on strike and have not
since been fully reinstated. This provision in our order will apply to
all strikers, whether or not their names appear in the complaint or in
the Appendices to this Decision and Order.
The reinstatement which we order shall be effected in the follow-
ing manner : All employees hired after October 1, 1936, the date of
the commencement of the strike, and who were not in the respond-
ent's employ on that date, shall, if necessary to provide employment
for those who are to be reinstated, be dismissed. If, even after this
is done, there is not, by reason of a reduction in force, sufficient
40 Matter of Republic Steel Corporation and Steel Workers Organizing Committee,
9 N. L. R . B. 219, 392.
41 Matter of Remington Rand, Inc. , and Remington Rand Joint Protective Board of the
District Council Office Equipment Workers, 2 N. L. R. B. 626 ; order enforced , National
Labor Relations Board v. Remington Rand, Inc., 94 F. (2d) 862 (C. C. A. 2d), cert. den.
304 U. S. 576, 585.
42 The employees named in Appendices B and C would also be entitled to reinstatement
as strikers, within that provision of our Order which is dealt with in the third sentence
of the above paragraph.
BERKSHIRE KNITTING MILLS 293
employment immediately available for the remaining employees,
including those who are to be reinstated, all available positions shall
be distributed among such remaining employees in accordance with
the respondent's usual method of reducing its force, without dis-
crimination against any employee because of his -union affiliation or
activities, following a system of seniority to such extent as has here-
tofore been applied in the conduct of the respondent's business.
Those employees remaining after such distribution, for whom no
employment is immediately available, shall-be placed upon a prefer-
ential list prepared in, accordance with the principles set forth in
the previous sentence, and shall, thereafter, in accordance with such
list, ,be, offered employment in their former or in substantially equiva-
lent' positions, as such employment becomes available and before
other persons are hired for such work; but if, before employment in
their former or substantially equivalent positions becomes available,
employment for which they are qualified becomes available,. they
shall be offered such employment before other persons are hired for
such work, provided, however, that those who accept such employ-
ment shall, in accordance with the preferential list, be offered em-
ployment in their former or substantially equivalent employment
as it thereafter becomes available.
We shall order the respondent to make the employees named in
Appendix C whole for any loss of pay they have suffered by reason
of their respective discharges by payment to each of them a sum of
money. equal to-the amount which he normally would have earned
as' wages from the date of his discharge to the date, of the offer of
reinstatement or placement on a preferential list as described in the
above paragraph, less his net earnings 43 during said period. We
shall likewise order the respondent to make the employees listed in
Appendix B whole for any loss of pay they have suffered by reason
of the respondent's discrimination against them by payment to each
of them of a sum of money equal to the amount which he would have
earned as wages from the date upon which he was refused reinstate-
ment to the date of the offer of reinstatement, or placement on a
preferential list as described, in the above paragraph, less his net
earnings 44 during said period: had the respondent, (1) on the dates
3 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 or the respondent ' s refusal to reinstate him and the consequent necessity of his
seeking employment elsewhere. See Matter of Crossett Lumber Company and United
Brotherhood of Carpenters and Joiners of America , Lumber and Sawmill -Yorkers Union,
Local 2590, 8 N . L. B. B. 440 . Monies received for work performed upon Federal , State,
county, municipal , or other work -relief projects are not considered as earnings , but, as
provided below in the Order , shall be deducted from the sum due the employee , and the
amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State,
county, municipal , or other government or governments which supplied the funds for said
work -relief projects.
44 See footnote 43, supra.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees listed in Appendix B were denied reinstatement, dis-
charged so many as might have been necessary of the persons hired.
after the commencement of the strike on October 1,-1936, and not
on its pay roll of that date, and thereafter refrained from employing
so many as might have been necessary of persons thereafter -employed
and not on said pay roll, who were or are employed in the same or
substantially equivalent positions as those formerly held...by.- the
employees listed in Appendix B, and (2) had it filled positions
occupied by such persons with the employees listed in Appendix B.45
We shall likewise, for the reasons stated in Matter of Western Felt
Works 46 order the respondent to make whole. those of the other
employees ordered to be offered reinstatement, 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 them, of a sum of money equal to the amount
which lie would have earned as wages from the date upon which
he was refused reinstatement to the date of the offer of reinstate-
ment, or placement on a preferential list as described in the above
paragraph, less his net earnings 47 during said period : had the re-
spondent (1) on the dates the. said employees were denied reinstate-
ment, discharged so many as might have been necessary of the per-
sons hired after the commencement of the strike on October 1, 1936,
and not on its pay roll of that date, and thereafter refrained from
employing so many as might have been necessary of persons.., there-
after employed and not on said pay roll, who were or are-employed
in the same or substantially equivalent positions as those formerly
held by the said employees, and (2) had it filled positions occupied
by such persons with the said employees. We shall likewise order
the respondent to make whole the other employees ordered to be
offered reinstatement, and who have not applied for reinstatement,
ss For the reasons set forth in Matter of Western Felt Works , supra, footnote, 36, we
would order the same remedy in this case, irrespective of our specific finding of a violation
of Section 8 (3) of the Act. See also Matter of American Manufaclui;in.g Compan,f°;•infra,
footnote 46.
See footnote 36, supra . In Matter of American Manufacturing Company et al. and
Textile Workers' Organizing Committee, C. 1. 0., 5 N. L. R. B. 443; order enforced as
modified in National Labor Relations Board v . American Manufacturing Company, 106 F.
(2d) 61 (C. C. A. 2d), we said (p. 467) :
When employees voluntarily go on strike , even if in protest against unfair labor
practices , it has been our policy not to award them back pay during the strike.
However, when the strikers abandon the strike and apply for reinstatement despite
the unfair labor practices , and the employer either refuses to reinstate them or im-
poses on their reinstatement new conditions that constitute unfair labor practices.
we are of the opinion that the considerations impelling our refusal to award back
pay are no longer controlling.
In enforcing the order of the Board in that case the -Court of Appeals for the Second
Circuit said :
But whether or not the discharge was discriminatory , it cannot be justified for
the reason that the men went on strike because of the unfair labor practices of
the Company. . . . They, therefore , remained employees and the Board had dis-
cretion to order them reinstated with back pay.
47 See footnote 43, supra.
BERKSHIRE KNITTING MILLS 295
for any loss of pay which they will have suffered by reason of the
respondent's refusal to reinstate them, upon application, following
the issuance of the order, by payment to each of them, respectively,
of a sum of money equal to the amount which he would normally
have'earned as wages during the period from 5 days after the date
of such application for reinstatement to the date of the offer of
einpl'oytnent or placement upon a preferential list as .described. in•.the
above paragraph, less his net earnings 48 during said period.49
Some of the employees to whom we have ordered the respondent to
give back pay may have received monetary assistance from Branch
10 or 'the Federation in the form of relief or benefit payments. Any
ti,mounts so received are not earnings and are not to be considered
in the computation of their net earnings.50
Upon the basis of the foregoing findings of fact and upon the
entire record in this proceeding, the Board makes the following :
CONCLUSION'S OF LAW
. 1. American Federation of Hosiery Workers, Branch #10, 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 by contributing support to said organization, the
respondent. has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of the employees named in Appendices B and C, thereby dis-
couraging membership in or affiliation with Branch 10, the respond-
ent 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 by. Section 7 of. the;.Act,.the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The afore-melitioned unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section 2 (6)
and (7) of the Act.
48 see footnote 43, supra.
49 Matter of Oregon Worsted Company and United Textile Workers of America, Local 2435,
3 N. Lr R: B. 36 , order , eenforced , in National Labor-Relations Board v .+,Oregon lTliorsted
Company, 96 F. (2d) 193 (C. C. A. 9th) ; Matter of Biles-Coleman Lumber Company and
Puget Sound District Council of Lumber and Sawmill Workers, 4 N. L. R. B. 679, order
enforced in National Labor Relations Board v . Biles- Coleman Lumber Company, 98 F. (2d)
18 (C. C. A. 9th).
Matter of Missouri-Arkansas Coach . Lines. Inc. and The Brotherhood of Railroad
Trainmen, 7 N. L. R. B. 186; Matter of West Kentucky Coal Company and United Mine
Workers of America, 10 N. L. R. B. 88.
247384-40-vol. 17-20
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the above findings of fact and conclusions of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Berkshire Knitting Mills, and its officers, agents, succes-
sors, and assigns shall:
1. Cease and desist from:
(a) In any manner dominating or interfering with the adminis-
tration of Berkshire Employees Association, Inc. of the Berkshire
Knitting Mills, or any other labor organization of its employees,
and from contributing support to the Berkshire Employees. Associa-
tion, Inc. of the Berkshire Knitting Mills, or to any other labor
organization of its employees;
(b) In any manner giving effect to any contract or agreement
which it may have entered into with the Association or representa-
tives thereof in respect to rates of pay, wages, hours of employment,
or other conditions of work;
(c) Discouraging membership in American Federation of Hosiery
Workers, Branch #10, or any other labor organization of its em-
ployees, 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 in the terms and conditions of their
employment ;
(d) In any other manner interfering with, restraining, or coercing
its'employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, or to engage in concerted ac-
tivity for the purposes of collective bargaining and other mutual
aid or protection, as guaranteed in Section 7 of the Act.
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 work, and completely disestablish
the said Association as such representative;
(b) Offer to the employees listed in Appendices B and C, and,
upon application, offer to those employees who went out on strike
on October 1, 1936, and thereafter, immediate and full reinstatement
to their former or substantially equivalent positions, without preju-
dice to their seniority 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
BERKSHIRE KNITTING MILLS 297
a preferential list in the manner set forth in said section, and there-
after , in said manner , offer them employment as it becomes available;
(c) Make whole the employees listed in Appendix C for any loss
of pay they have suffered by reason of the respondent 's discrimina-
tory acts , by payment to them, respectively , of a sum of money
equal to that which each would normally have earned as wages dur-
ing the period from the date of his discharge 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; deducting , however, from the amount otherwise due to
each of the said employees , monies received by said employee during
said period for work performed upon Federal , State, county ,' Iriunic-
ipal , or other work-relief projects , and pay over the amount so de-
ducted to the appropriate fiscal agency of the Federal , State, county,
municipal , or other government or governments which supplied the
funds for said work-relief projects , but not deducting any amounts
which each of the said employees may have received in the nature
of relief or benefit payments during said period from American
Federation of Hosiery Workers, or from Branch 10 thereof;
(d) Make whole the employees listed in Appendix B for any loss
of pay that they have suffered by respondent 's discriminatory acts,
by payment to each of them of a sum of money, computed in the
manner described in the section entitled "The remedy" above, 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 prefer-
ential list, required by paragraph (b) above, less his net earnings
during said period; deducting , however, from the amount otherwise
due to each of the said employees , monies received by said employees
during said period for work performed upon Federal, State , county,
municipal , or other work -relief projects , and pay over the amount so
deducted to the appropriate fiscal agency of the Federal, State,
county, municipal , or other government or governments ,which sup-
plied the funds for said work-relief projects, but not deducting any
amounts which each of the said employees may have received during
said period from American Federation of Hosiery Workers, or from
Branch 10 thereof ;
(e) Make whole the other employees ordered to be offered reinstate-
ment, who applied for and were refused reinstatement by the respond-
ent after October 1, 1936, for any loss of pay they have suffered by
reason of the respondent 's refusal to reinstate them by payment to
them, respectively , of a stun of money, computed in the manner
described in the section entitled, "The remedy" above , 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
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent's offer of reinstatement, or placement upon a preferen-
tial list, required by paragraph (b) above, less his net earnings
during said period; deducting, however, from the amount other-
wise due to each of the said employees, monies received by said
employees during said period for work performed upon Federal,
State, county, municipal, or other work-relief projects, and pay over
the-amount so deducted-to the appropriaterfiscal_agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for such work-relief projects, but not deducting
any amounts which each of the said employees may have received
during said period from American Federation of Hosiery Workers, or
from Branch 10 thereof ;
(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 will have suffered by reason of the respondent's refusal to
reinstate them, upon application, following the issuance of this Order,
by payment to 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 reinstatement
to the date of the offer of employment or placement upon a preferen-
tial list, required by paragraph (b) above, less his net earnings during
said period; deducting, however, from the amount otherwise due to
each of the said employees, monies received by said employee during
said period for work performed upon Federal, State, county, munic-
ipal, or other work-relief projects, and pay over the amount so de-
ducted to the appropriate fiscal agency of the Federal, State, county,
municipal, or other government or governments which supplied the
funds for said work-relief projects, but not deducting any amounts
which each of the said employees may have received during said period
from American Federation of Hosiery Workers, or from Branch 10
thereof;
(g) Immediately post notices in conspicuous places throughout its
plant, and maintain such notices for a period of sixty (60) consecutive
days from the date of such posting, stating that the respondent will
cease and desist in the manner set forth in 1 (a), (b), (c), and (d) and
that it will take the affirmative action set forth in 2 (a), (b), (c), (d),
(e), and (f) of this Order;
(h) Notify the Regional Director for the Fourth Region in writing
within ten (10) days from the date of this Order what steps the re-
spondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the allegations of the complaint that
the respondent has discriminated in regard to the hire and tenure of
employment of the individuals named in Appendix A, be, and they
hereby are, dismissed without prejudice.
BERKSHIRE KNITTING MILLS
APPENDIX A
299
Achenbach, Mary - Cremer, Gustav Gegenheimer, LeRoy
jane Crupi, Joseph Geiss, John
Adams, Melvin Cummings, Leon Gift, Paul
Adan, Nelsoul Davis, John % Gilbert,-`Hilda
Adams, Woodrow DeAngelis, Woodrow Ginder, Charles
Allison, Rena Deeds, Bernard Godek, Louis
Ammarell, Luther Delewski, Ed. Graeff, Elmer
Anastasio, Sebastian Demario, Joseph Graeff, Sarah
Arnold, George Denatala, Fannie Grant, Francis
Augustine, Mrs. Didyoung, Ruth Gray, Andrew
Lillian Dietrich, Calvin Green, Raymond
Augustine, Louis Dietrich, Charles Groewski, Max
Barth, Luther Distasio, John Groff, Earl
Bednar, Andrew Dmochowski, Walter Hare, Robert
Beclo s r,,Michael _ Eberly, John, Hamaker, Robert
Bendel, Catherine Eberly, Kathryn Hammond, Leo
Benevit, Kathryn Ecks, George Hartranft, Wm.
Bennethum, Leonard Ely, Irene Hartenstine, Katie
Bingaman, Warren Farino, Jerome Hartman, Paul
Blatt, Raymond Faust, Eleanor Hawk, Edward
Blattler, Alfred Feyrer, Fred Hawman, Richard
Blimline, Dorothy Filak, Anthony Hepner, Emma
Blimline, Earl Filak, Joseph Hertzog, George
Bogdanski, Stanley Filak, William Herring, Laura
Bohanak, Joseph Firestone, Hazel Hilbert, Lester
Bohanak, Mary Fisher, Ruth Hill, James
Bohanak, Steffie Flickinger, John Hill, John
Bonte, Fred Ford, Mrs. Annetta Himmelman, Robert
Bor. ,1, i Helen Franckowiak, Hindenach, John
Bower, Ruth Florence Hindenach, Maynard
Bross, Joseph Frank, Albert Hindenach, Wm.
Bross, Joseph Frederick, Dor- Hinkel, Harry
Brown, Ruth othy M. Hoffman, Wm.
Burkey, Charles Fry, Carol Brooke -
Capiotes, William Gale, Nicky Holl, Harold
Carl, John Garipoli, Fannie Horst, Earl
Chelius, Paul Garipoli, Francis Houser, Charles
Chirieleison, Frank Garman, Luther Howe, Joseph
Chirieleison, Thomas Garrett, Lee Howe, Mrs. Dorothy
Churan, Stevan Gaspari, Emidio Hoyer, Earl
Coleman,, Allen Gawrys, Cecilia Humma, Verna G.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Humma Warren Marks, George Ross, Joseph
Hummel, Grace Marnelli, Nick Royer, Ernest
Hunt, Harry Marnelli, Peter Rusnak, Anna
Inro, Dominic Martin, Frank Ruth, Paul
Jacobs, Mertis Masal, Anna Sacco, Matthew
Janiszewski, Frank McCarraher, Donald Sands, Wayne
Jasinski, Stanley McClatchie, Hazel Santispirt, Joseph
Johnson, George Megno, Mariano Schaich, Fern
Johnston, Edward
Kaueher,` Florence
Mehosky, Augustas
Menet, 'John
Scherba., Michael
Scherl, Joseph
Kaufman, Harry Menet, Stanley Schultz, Stewart
Kazmierezak, Al Miller, Franklin Seiling, Elwood
Keenan, Robert Miller, James E. Sekulski, Florence
Keener, Charles Moffa, Charles Sekulski, Paul
Kelchner, Eli Moyer, Mrs. Ruth Shiffiet, Edith
Kelley, Leroy Naus, Charles. Shipe, Wayne
Kemorer Walter Neeb, Charles Shuker, Loretta
Keppley, Elwood Newman, Francis Simmonds, Robert
Kerber, Louis Noll, Russel Smith, Robert
Kirkland, Mildred Palange, Joseph Snow, Mrs. Mildred
(nee Myers) Palmer, Walter Snyder, Ronald
Kline, Lester Pasco, Catherine Soltis, Edmund
Kline, Ralph Paynter, Mariam Soltis, John
Kiinikowski, Edward Pearson, Lee Soltyski, Matthew
Knoll, Paul Pelligrino, Frank Spangler, Earl
Kramer, Roberta Petro, Francis Spangler, Leroy
Kremer,^Jack Petro, George Spayd, Paul<
Krizon, Anthony Petrowski, Stanley Springer, Emily
Kruk, Helen Pigeon, Wilbur Sroka, Wanda
Kuntz, Walter Potteiger, Hattie Stacherski, Anthony
Kusior, John Radka, Frank Steely, Leroy
Kwittkowski, John Rapino, Louis Steffe, Edwin
Latshaw, Burris Rapp, Harry Stober, Edgar
Lawrence, Edward Ray, Beatrice Stoudt, Wayne
Lebo, Wm. Redcay, Stanley Street, Albert
Lewis, Nick Remley, Meade Street, Mrs. Kathryn
Light, George Resch, James Strouse, Harry
Lorah, Carl Rhoads, Bernard Strunk, Arlington
Lucas, John Rhoads, Donald Stuber, John
Luksie, Sophia Richardson; John Sukije, Anna
Machrina, Tony Ringler, Forrest Sweitzer, Lester
Malpede, John Ringler, Steward Talarico, Michael
Marderness, Isaac Ritter, Henry Talarico, Samuel
BERKSHIRE KNITTING MILLS 301
Tere .chi,Theo Victor, Steflie Young, Charles
Thiele, Ruth Vollmer, Fred Zeiber, Charles
Thomas, Gilbert Volutza, Orlando Zeiber , Raymond
Tilini, Peter Wasik, Walter Zeller, Earl
Tobias, Paul Wawrzyniak , Walter Zellers, Lewis
Toth, Alex Weinhold , Paul Zellers, Ralph
Toth, Helen Weitzel, Margaret Zerbe, Edward
Toth, John Wells, Larry Ziolkowski , Sylvester
Toth, Wm. Wetzel, Clarence Zocco, Benny
Trautman , Harold Wewer,; Wm. Zocco,. Louis :.
Ustaszewski, John Weyman, Hazel Zocco , Philip
Ustaszewski , Walter Graham
Vargo, John Wright, Harold
APPENDIX B
Augustine, Arnold Himmelberger, Parenti, Valentine
Bittle, Leonard Richard Rapino, Nicholas
Cramp, Robert Horn, David Spayd, Earl
Haas, Melvin Houck, Ralph Symanowicz, Bernard
Hahn , Catherine Kogut, Frank Thiele, Edward
Hartman, win. Ludwig, Lorna Vecchio, Frank
Musket, Earl
APPENDIX C
Enck, , Frank Epting, Ernest Moyer, Eugene