Botany Worsted Mills

National Labor Relations Board - Board Decisions

Dec 1, 1937

4 N.L.R.B. 292 (N.L.R.B. 1937)

In the Matter of BOTANY WORSTED MILLS and TEXTILE WORKERS
ORGANIZING COMMITTEE
Case No. C-216-Decided December 1, 1937
Woolen and Worsted Industry-Interference, Restraint or Coercion: en-
gendering fear of loss of employment for union membership and activity;
maintaining or encouraging surveillance of employees in the exercise of their
right to join or assist a labor organization ; questioning , threatening , and in-
structing employees in respect to the exercise of their right to join or assist a
labor organization ; interrogating prospective witnesses concerning their testi-
mony under the Act-Discrimination : discharge-Reinstatement Ordered: despite
employment since discharge as union organizer at substantially equivalent
compensation-Back Pay: disallowed in accordance with desire of person named
in complaint.
Mr. Victor A. Pascal, for the Board.
Putney, Twombly & Hall, by Mr. Louis H. Hall and Mr. Frederic
R. Sanborn, of New York City, for the respondent.
Mr. Sidney L. Cahn, of New York City,,and Mr. Ben Goodkin, of
Passaic, N. J., for the T. W. O. C.
Mr. Millard L. Midonick, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On May 7, 1937, Textile Workers Organizing Committee, herein
called the T. W. O. C. or the Union, filed a charge with the Regional
Director for the Second Region (New York City) alleging that
Botany Worsted Mills, Passaic, New Jersey, herein called the re-
spondent, had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. On July 6, 1937,
the National Labor Relations Board, herein called the Board, by
the Regional Director for the Second Region, duly issued and served
upon the parties a complaint and notice of hearing. The complaint
alleged that the respondent had engaged in unfair labor practices
affecting commerce within the meaning of Section 8 (1) and (3), and
Section 2 (6) and (7), of the Act, in that it had discriminatorily
discharged and refused to reinstate its employee, Joseph Peidl, on
292
DECISIONS AND ORDERS 293
May 1, 1937, for the reason that he joined and assisted the T. W. 0. C.
and engaged with other employees in concerted activities for their
mutual aid and protection.
Prior to the hearing, the respondent filed an answer to the complaint
denying that Joseph Peidl had been discharged for the reasons stated
above. The answer affirmatively alleged that the cause of the dis-
charge had been Peidl's neglect of his duties and his interference
with the performance by other employees of their duty by approaching
fellow employees during working hours and urging them to join the
T. W. 0. C.; that these activities of Peidl continued despite warning
that such activities must be confined to time outside working hours;
that the respondent could rightfully discharge any employee for vio-
lating the duty to devote to the service of the respondent the time
for which he was paid. The answer further denied the jurisdiction
of the Board as a legal conclusion while admitting certain facts, set
forth in Section I below, relative to the respondent and its business.
Pursuant to the notice, duly served on the parties, a hearing was
held in Passaic, New Jersey, on July 15 and -16, 1937, before Frank
Bloom, the Trial Examiner duly designated by the Board. The Board,
the respondent, and the T. W. 0. C. were represented by counsel and
participated in the hearing.
At the hearing, pursuant to notice of motion to amend served on
the parties, counsel for the Board moved to amend the complailt to
add a further allegation that the respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section
8 (1), in that the respondent prevented and is preventing its em-
ployees from joining the T. W. 0. C. by having the activities of those
of its employees who are interested in the Union, spied upon and
watched. The motion was granted by the Trial Examiner after
counsel for the respondent had waived insufficiency of notice in point
of time. The allegations added to the complaint by the amendment
were denied by a supplemental answer. At the conclusion of the
hearing, a motion by counsel for the Board to conform the pleadings
to the proof was granted. A motion to accept the admissions con-
tained in the respondent's answer, verified July 12, 1937, as part of the
Board's case, was also granted. At the conclusion of the Board's case
and again at the conclusion of the hearing, counsel for th6 respondent
made five motions to dismiss the complaint, four on the grounds of
the lack or insufficiency of evidence to sustain the allegations of the
complaint, and one on the ground that it did not appear that the
respondent was engaged in interstate commerce, and that therefore the
respondent was not subject to the Act and to the jurisdiction of the
Board. Rulings on the five motions to dismiss having been reserved
at the hearing, said motions were subsequently denied in the Interme-
diate Report.
294 NATIONAL LABOR RELATIONS BOARD
Full opportunity to be heard , to examine and cross -examine wit-
nesses, and to produce evidence bearing upon the issues was afforded
the parties . The parties were granted a reasonable period for oral
argument at the close of the hearing , and they were afforded a reason-
able opportunity to file briefs . Oral argument was presented by
counsel for the Board and for the respondent . Thereafter , briefs
were submitted by counsel for the Board, the respondent, and the
T. W. O. C.
On August 11, 1937, the Trial Examiner duly filed his Intermediate
Report in which he denied the motions of the respondent to dismiss
the proceedings . He found that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and Section 2 (6) and ( 7) of the Act,
by spying upon and watching its employees, and by discharging and
refusing to reinstate Joseph Peidl . He further found that , by dis-
charging and refusing to reinstate Joseph Peidl for the reason that he
joined and assisted the T. W. O. C., the respondent had engaged in and
was engaging in unfair, labor practices affecting commerce, within the
meaning of Section 8 ( 3) and Section 2 (6) and ( 7) of the Act. The
Trial Examiner recommended that the respondent cease and desist
from its unfair labor practices and, in addition, offer reinstatement
to Joseph Peidl. The respondent thereafter, on August 21, 1937,
filed 'exceptions to the Intermediate Report, taking exceptions to the
Trial Examiner's rulings in the course of the hearing upon its mo-
tions and objections as well as to the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner on
motions and on objections to the introduction of evidence and finds
that no prejudicial errors were committed . The rulings are hereby
affirmed. We have further considered the exceptions to the Inter-
mediate Report and find no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Botany Worsted Mills, is a corporation organized
and existing since 1889 under the laws of New Jersey. Its principal
office and place of business is located in Passaic , New Jersey, where
it owns and operates a mill . The respondent engages in the manu-
facture and sale of woolen and worsted textiles for its own account,
and it also processes or combs raw materials for the account of cus-
tomers. It was testified by the respondent 's assistant secretary that
commission-combing is done for persons or firms outside the State of
New Jersey , and that he had no knowledge concerning whether such
work was performed by the respondent for firms within the State of
DECISIONS AND ORDERS 295
New Jersey. The respondent maintains a showroom in New York
City where orders are taken on the basis of samples there displayed,
subject to confirmation at the Passaic office. A sales office is also
maintained in Chicago, Illinois, where the respondent's representa-
tives procure the same form and type of orders subject to confirma-
tion at the Passaic office.
The finished products turned out at the Passaic mill, mainly worsted
and woolen goods, yarns and neckties, are made principally from
wool. Wool is generally shipped by sellers to the respondent's mill
in Passaic, New Jersey, from Massachusetts, Pennsylvania, Maryland,
and West Virginia. In some instances, the sellers of wool cause ship-
ments of wool consigned to their order from wool-growing states,
principally Texas, New Mexico, California, Oregon, Washington,
Idaho, Nevada, Montana, and Wyoming, to be diverted en route and
delivered to the respondent at Passaic. All of the respondent's raw
wool comes to it in these ways., Other raw materials, such as rayon,
silk, and cotton, enter into the respondent's products only "to a very
small extent." Sellers of such materials ship them to the Passaic
mill principally from New York, New Jersey, Delaware, Ohio, Massa-
chusetts, Connecticut, and Vermont, and occasionally small-quantities
are shipped from other states.' In its answer, verified July 12, 1937,
the respondent admits the following :
It is the fact that the greater part of its raw materials used in
the spinning of yarn and in the manufacture of woolen and
worsted goods do not originate in the State of New Jersey and
therefore must be transported in interstate commerce from and
through various states of the United States other than the State
of New Jersey to the plant of the respondent at Passaic, New
Jersey.3
At least 90 per cent of the products manufactured by the respond-
ent at its mill in Passaic are shipped to purchasers who are located
in states other than the State of New Jersey. In the great majority
of cases, the goods are shipped to purchasers located in the State of
New York, but in varying small quantities, shipments go to all the
states of the Union. Railroad shipments of the respondent's prod-
ucts are made f. o. b. Passaic over the Erie Railroad and the Delaware,
Lackawanna & Western Railroad and are routed by these carriers
over such connecting railroads as are necessary for the commodities
to reach their destinations.
These facts are not disputed by the respondent. Indeed, in its
answer it admits :
'Board's Exhibit A.
a Board's Exhibit A.
'Respondent's Answer, paragraph 2.
67573-38-vol Iv-20
296 NATIONAL LABOR RELATIONS BOARD
The greater portion of the product of respondent's plant at
Passaic, New Jersey including yarn and woolen and worsted
goods, is ultimately transported in interstate commerce from the
respondent's plant in Passaic, New Jersey to and through other
states of the United States.4
The respondent, nevertheless maintains that its business is not in-
terstate in character, and that the Board, therefore, has no jurisdic-
tion for the reason that :
No sales of the respondent's product are consummated in any
other state than the State of New Jersey and title to such mer-
chandise sold by the respondent passes to the respective pur-
chasers thereof in the State of New Jersey, except that respondent
does ship merchandise into the State of California from which
local deliveries are made, the total volume of such deliveries
being less than 21/2 per cent of all its sales and deliveries.5
It is clear from the record that approximately 90 per cent of the re-
spondent's products are delivered to either of two interstate carriers
for immediate shipment to purchasers located in states other than
the State :of New Jersey. It is wholly immaterial, therefore, that
upon delivery of the goods to such a carrier for the purpose of an
immediate interstate movement, the title in the subjects of the inter-
state movement may pass to the purchasers before the goods have
left the State of New Jersey by virtue of the fact that they are sold
f. o. b. the point of such delivery to the carrier. The operations of
a manufacturing concern may affect interstate commerce whether it
causes its product to be transported in interstate commerce by a
carrier which is its own agent or the agent of the consignee.
II. THE UNION
Textile Workers Organizing Committee has been constituted by the
Committee for Industrial Organization, by an agreement to which
United Textile Workers of America was a party, as an unincorpo-
rated sub-committee to organize textile workers throughout the
United States for the purpose of engaging in collective bargaining
with employers. In 1936, United Textile Workers of America author-
ized the T. W. O. C. to conduct nation-wide organizational activities
in its behalf and under its constitution. Since early April 1937, the
local office of the T. W. O. C. has been soliciting the employees of
the respondent and those of other textile mills in the vicinity of
Passaic to enter the membership of the T. W. O. C., and a substantial
number of such workers were members by the time of the hearing
in this proceeding. The members of the T. W. O. C. among the
employees of the respondent were, at the time of the hearing, en-
4 Respondent 's Answer, paragraph 3
5 Respondent 's Answer, paragraph 2, as amended at the hearing ( Record, pp 7-8).
DECISIONS AND ORDERS 297
rolled directly in the national organization since no charter for a
local union had as yet been applied for.
We find the T. W. O. C. to be a labor organization.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The T. W. O . C. entered the respondent 's plant during the early
part of April 1937 . Organizers for the Union have since conducted
an active campaign to enroll members among the employees. The
respondent did not permit these activities to go unnoticed. Em-
ployees were bluntly intimidated by questionings and warnings re-
garding union activities and union membership . They were coerced
more subtly by surveillance and the consequent fear of detection.
1. On or about April 25, 1937, Joseph Peidl, named in the com-
plaint as discriminatorily discharged , was asked by one of his fore-
men whether he belonged to the "C. I. 0.," the organization with
which the T. W. O. C. is affiliated. Another employee testified that
he was called into the office of the assistant head of his department
and warned that his interest in the "C. I. 0." was known , as were
his public speeches on behalf of that Union, and that he was being
closely watched by the respondent 's "Labor, Board" . Some time
later in May or in June 1937 , officials of the respondent questioned
one of Peidl 's friends about Peidl's rate of compensation for signing
up new members for the Union. As late as July 9, 1937, one week
prior to the hearing, a foreman questioned two employees , whom he
observed signing a petition for wage increases , concerning their
membership in the "C. I. 0." Moreover , William Nagy, an em-
ployee, testified that he was approached in the plant three days be-
fore the hearing in this case by Monroe Kestler, one of the foremen,
and asked if he intended to testify at the hearing and whether for
the respondent or for Joseph Peidl, his fellow employee named in
the complaint . While we do not wish to circumscribe the privilege
of a respondent to engage in reasonable methods of preparing a
case which it has pending before the Board, there is no intimation
in Kestler 's subsequent testimony or in the remainder of the record
to indicate that Kestler was acting for the respondent 's counsel
rather than in pursuance of a plan to intimidate the prospective
witness.
At the hearing, the respondent made no attempt to contradict or
refute the testimony of the witnesses establishing the facts as to the
unfair labor practices thus far set forth.
By these activities , the respondent has seized upon a powerful and
destructive weapon. Its effect is to create immediate, personal fear
of the loss of employment in present and prospective members of,
298 NATIONAL LABOR RELATIONS BOARD
the Union, and it obviously constitutes, therefore, flagrant and un-
lawful interference, restraint, and coercion of employees.6 It is not
necessary, as the respondent contends in its brief, to prove directly
that the effect of these practices has been to intimidate; we can make
no other inference but that such tactics have had and are likely to
continue to have the desired effect, and we will therefore order the
respondent to cease and desist.
2. Testimony concerning espionage in the respondent's plant re-
veals more insidious tactics. Toward the latter part of April 1937,
one Frank Pieczarka, an employee of the respondent who testified
that he disliked unions, was seen by a witness quietly observing a
transaction in which the witness returned to Peidl an executed ap-
plication for membership in the Union. According to Pieczarka's
own testimony, he sought out Henry F. Remit;, an official in charge
of the personnel department, in his office a few hours later to report
having "caught him (Peidl) signing up the men" in the plant.
When questioned whether or not it was part of his duties to relay
such information about his fellow employees, Pieczarka first an-
swered in the negative; he then corrected himself, stating that it
was part of his duties; that he passed such information on because
he felt an obligation upon himself to keep the management informed
of the Union activities observed by him; that Remig "is the General
Manager" and if "there is anything wrong everybody goes up to
him." Shortly after this incident, Pieczarka approached Peidl in
the plant and requested to be signed up as a member of the Union.
Subsequently, on.May 1, 1937, at 3: 00 A. M., Nagy overheard a con-
versation between George Leightle, a foreman, and Pieczarka, in
which the latter was asked if Peidl had attempted to sign him up.
Pieczarka replied in the affirmative. Thereupon Leightle said, "That
is all Mr. Belli wants to know".'
Assuming that the respondent gave Pieczarka no explicit instruc-
tions with regard to spying upon union activities, we would never-
theless condemn as interference, restraint, and coercion, the authori-
zation for and encouragement of systematic espionage implicit in the
respondent's readiness to listen to information about organization
which should not concern it.
Upon the foregoing findings, and upon other facts hereinafter set
forth, we conclude that the respondent, by persistent questioning, by
threats both express and implied, and by espionage, has sought to
check the organizational activities of its employees, and by these
means it has interfered with, restrained and coerced its employees in
the exercise of their rights to self-organization, to form, join, and
assist a labor organization. This conclusion is reinforced by the
9 Matter of Greensboro Lumber Company and Lumber and Sawmill Workers Local Union
No 2688, United Brotherhood of Carpenters and Joiners of America , 1 N. L. R. B. 629
1 Belli is the assistant head of the combing department.
DECISIONS AND ORDERS 299
circumstances leading to the discharge of Joseph Peidl, next to be
discussed, who is alleged in the complaint to have been discrimina-
torily discharged.
B. The discharge
Joseph Peidl had been employed by the respondent since February
13, 1935, as a roil trucker. The events leading up to his discharge
can be listed chronologically as follows: On April 15, 1937, shortly
after the commencement of organizational activities by the T. W.
O. C. in the respondent's plant, Peidl joined the Union. By April
26, 1937, if not before, the respondent knew of Peidl's membership in
the Union and of his active participation in soliciting other employees
to join. Nothing further occurred until May 1, 1937, at about 3: 00
A. M., when Nagy overheard the conversation, previously described,
between George Leightle, a foreman, and Pieczarka, in which the
latter was asked if Peidl had attempted to sign him up. Upon
Pieczarka's reply in the affirmative, Leightle said, "That is all Mr.
Belli wants to know." When Peidl came to work that morning, he
was told by his superior, Mr. Fiori, head of the combing department,
that he was transferred to another department of the plant. About
1: 45 in the afternoon, just prior to quitting time, he was told by
Kestler to report to Fiori. Fiori told him not to return to work
until sent for ; that he did not know the reason for the discharge since
it was ordered by Remig, the head of the personnel department.
Peidl then went to Remig for an explanation. He testified at the
hearing as follows :
I approached Mr. Remig and I told him I was Joseph Peidl.
He said, "I know". I said, "Mr. Remig, why am I being laid
off ? I am not accustomed to being told to stay home and having
no explanation." He said, "Don't you know?" I said, "I think
I know". He said, "Well." I said, "It is account of the C. I. 0."
He said, "How many did you sign up in the plant, and where
are they?" I told him. He also asked me who they were. I
said "I don't know who they are. I didn't sign up many".
Remig subsequently testified :
The reason I gave him was for using company time for other
purposes than the time for which the company paid him.
Q. (By the Trial Examiner.) Is that the complete answer?
A. Well, it was preceded by other conversation.
Q. Tell us the whole conversation. Tell us what you said to
him and what he said to you.
A. Mr. Peidl on his way out from the mill, about 2 o'clock,
approached me with reference to his being out on call, as it was
expressed. He mentioned the fact that he presumed it was be-
cause he was a member of the C. I. O. I told him that that was
G
300 NATIONAL LABOR RELATIONS BOARD
not the reason. As far as he belonged to any organization was
concerned, that did not concern us nor did we even care about or
question that. The conversation brought out from me the in-
formation that it was the fact that he was using company time
for other purposes which was the basis of his discharge.
In the brief on behalf of the respondent, it is stated :
Briefly, Botany justified Peidl's discharge on the ground that
he had violated a rule of his employer by engaging in organiz-
ing work and propaganda within the employer's premises within
the eight hours' time for which his employer was paying him.
We take the flat position that an employer can hire men for
eight hours, and instruct them to sit at a desk, fold their hands,
and not speak. If they violate their instructions and the
conditions of their employment, he can lawfully discharge them.
It is no defense to say that, despite his instructions, some
"brooding omnipresence" not explicit in the Wagner Act per-
mitted them so to talk.
The employer can forbid all conversation. He can forbid dis-
cussions concerning religion-or politics-or labor unions.
Certainly he can prohibit the men from using the time that he
pays for to solicit membership, get membership cards signed, and
returned to the organizer-all on the company's time, and to the
serious neglect o l the employee's work.8
In response to so clear an assertion in behalf of the respondent, we
interpret the intent of Congress as embodied in, the Act to be this,
that inasmuch as by Section 8 (3) it is made an unfair labor practice
to encourage or discourage membership in any labor organization by
discrimination in regard to hire or tenure of employment or any
term or condition of employment, it is therefore an unfair labor
practice so to discriminate whether or not the discharge is attributed
to a violation of known company rules or "conditions of ... employ-
ment." Discrimination involves an intent to distinguish in the
treatment of employees on the basis of union affiliations or activities,
thereby encouraging or discouraging membership in a labor organ-
ization, and it is immaterial whether this be done by the means of dis-
criminatory company rules, or of the discriminatory application of
non-discriminatory rules, or in the absence of any rule.
The respondent urges that Peidl was lawfully discharged for
violating an alleged regulation prohibiting employees from engaging
in any activities outside the scope of their employment during the
eight consecutive hours of each shift. It is clear from the record
that at various irregular and informal periods during each working
8 Memorandum on Behalf of Respondent , pp. 1, 17.
DECISIONS AND ORDERS 301
day, there are 15 to 30 minute intervals for most of the men during
which time they do not actively work. Because of the nature of the
processes of wool manufacture, there are often such periods of en-
forced inactivity while employees await supplies, while machines
receive minor repairs and attention, and while machines run auto-
matically. During such intervals in this plant, the employees would
congregate in small groups and eat lunch and engage in discussions
of baseball, fishing, and other topics. There was a substantial amount
of uncontradicted testimony that it is a common practice for a large
majority of the employees to sell, during such inactive periods, tickets
for various lotteries, Irish Sweepstakes, and raffles, tickets for dances
and basketball games, chances for "numbers" games, and to solicit
contributions for Christmas baskets and flood relief. This condition
of affairs was known to many of the foremen. In fact, it appears
from the evidence that the foremen were as active in such matters
as the non-supervisory employees. These widespread and recurrent
activities were all outside of, the duties for which the employees
were hired, and substantial amounts of time were consumed thereby.
And yet, according to Remig, no employee has been discharged for
such activities over the'period of several years during which he has
supervised the personnel department. It is obvious that so long as
their efficiency was not impaired, the management did nothing to
prevent the employees from so using the time not taken up with
active duties. We conclude, therefore, that the alleged rule against
outside activities, nowhere to be found in writing and never enforced
except in Peidl's case, is not a bona fide regulation of the respondent
but merely a screen erected to divert attention from its real motive.
In their brief, counsel for the respondent emphasizes that Peidl's
union activities on the respondent's time caused "the serious neglect
of the employee's work".,, Peidl testified that he was never repri-
manded for inefficiency or told that he was loafing on the job. He
further testified as to his own efficiency and the method by which he
was able to perform his duties with dispatch. In this respect, Peidl's
testimony was uniformly supported by the workers in the combing
department whose materials it was his job to remove and cart away,
and by workers in the willowing and press room to which Peidl
trucked the materials for baling. The testimony of Kestler, one of
Piedl's foremen, was to the opposite effect, that during March 1937,
Kestler thought Peidl "seemed to be loafing on the job", and neglect-
ing his duties by "standing around and talking to people." Although
Kestler testified this neglect "was a daily occurrence," nevertheless
by Kestler's own previous testimony, his last rebuke to Peidl on this
score occurred a month prior to Peidl's discharge. And although
Kestler testified that he received similar complaints from his assist-
0 Memorandum on Behalf of the Respondent, p. 17.
302 NATIONAL LABOR RELATIONS BOARD
ant, Leightle, the respondent did not call Leightle to testify at the
hearing.
It is apparent from the record that the true reason for Peidl's dis-
charge was not the alleged neglect of his work. Kestler, the fore-
man, testified that although he instructed Peidl to refrain from talk-
ing to other employees and to refrain from signing them up on
company time, he nevertheless did not instruct the other employees
of the alleged rules governing taking part in discussions during
working hours. At that time, the intention of the respondent ap-
pears to have been to single Peidl out for the purpose either of halt-
ing his activities, or, if unsuccessful in that, to have a basis for his
discharge. Peidl did not cease his organizational activities. There-
upon, and shortly before the discharge, a conversation took place
between Pieczarka and Leightle, the foreman, in which Pieczarka
reported that Peidl had tried to sign him up in the plant. This
conversation referred to an incident when Pieczarka approached
Peidl and requested to be signed up. These occurrences clearly indi.
cate that the respondent was looking for an incident, to which to at-
tribute a discharge, entirely unrelated to the manner in which Peidl
did his work. This is further borne out by Pieczarka's own testi-
mony to the effect that, subsequent to the discharge, one of the fore-
men told him that " the fellow from the press room (Peidl) got fired
for signing up the people to the C. I. 0." Similarly, in the interview
immediately following the discharge, Remig, the supervisor of per-
sonnel, sought to ascertain from Peidl the number and identity of
those whom he had signed up for the T. W. 0. C. By this it is evi-
dent that the respondent's interest lay principally in the subject
matter of Peidl's private activities on company time rather than in
the effect of such private activities on the quality of Peidl's work.
Moreover, Peidl's discharge was sought and brought about by high,
officials of the respondent. Remig, who supervised the personnel de-
partment, admitted that he knew nothing of the manner in which
Peidl did his work, and it seems unlikely that Remig's superior,
the General Manager of the plant from whom the order for Peidl's
discharge originated, was better informed.io
i0 Remig testified in part as follows :
Q (By Mr. Pascal ) Mr. Remig. are you the one that ordered Mr Peidl discharged?
A No, sir
Q. Who ordered him discharged9
A. It is a question I took up with the General Manager.
Q who is the General Manager?
A. Mr F. R Edington.
Q. Who gave the order that Mr Peidl be discharged?
A. I took the question up with Mr. Edington.
Q. And Mr . Edington gave the order?
A. Yes, sir.
Q You knew nothing about whether this man is efficient or a bad worker?
A. No, sir.
DECISIONS AND ORDERS 303
So much of the evidence relating to Peidl's alleged neglect of duty
as is conflicting is to be weighed in the light of the respondent's
animus toward the T. W. O. C. We further take into consideration
the findings of the Trial Examiner, who from his observation of the
demeanor of the witnesses had the opportunity to form a trust-
worthy opinion of their credibility. We are convinced that Peidl
performed his services with reasonable efficiency and competency,
and we conclude, therefore, that inefficiency was not the reason
motivating the respondent in discharging him.
We are similarly convinced from all the evidence that Peidl, in
conversing with or soliciting other employees, did so in such a way
as not to interfere with their efficiency, and that therefore such
alleged interference was not the motivating cause of his discharge.
Finally, the respondent argues that since several other men in the
plant, whom it knows. to be members of the Union, are still em-
ployed, the discharge of Peidl cannot be attributed to his union
affiliation. We are convinced that the respondent's basis for dis-
tinction in its discharge was between Peidl, whom it feared as an
active organizer, and the others, who appear to have been 'passive
memb'e'rs. "
To recapitulate, we have found that the respondent's employees
are necessarily inactive during several periods of each working
day, that Peidl during such periods has engaged in organizational
activities on behalf of the T. W. O. C., that by so doing Peidl has
not in any manner neglected his work or caused others so to do,
that during inactive periods within the working day the respondent's
employees in general have engaged extensively in various activities
without the scope of their employment but unconnected with the
Union, that the respondent has taken no steps to prevent outside
activities unconnected with the Union while at the same time it
warned Peidl to cease outside activities on behalf of the Union and
then discharged- him- for -refusing to comply. We, conclude, -there-,
fore, that the respondent's alleged rule prohibiting outside activities
during working hours, although in itself unobjectionable and
within the lawful power of the respondent to adopt and en-
force, was either non-existent or a dead letter and was invoked
and applied to Peidl in a discriminatory fashion. Peidl was dis-
charged not for outside activities but for outside activities in behalf
of the T. W. O. C. Other employees, engaging, freely in activities
outside the scope of their employment, but not in behalf of a labor
organization, were not discharged. We find that Peidl's discharge
was intended as a further warning to other employees that their in-
terests would" best be served by refraining from joining, or by sever-
ing their affiliations with, the Union. We conclude also that such
discharge was motivated by a desire to prevent further active organ-
304 NATIONAL LABOR RELATIONS BOARD
izational activities by Peidl, and it was intended also by the respond-
ent as a warning to other Union members not to engage in similar
activities.
We conclude, therefore, that the respondent has discriminated in
regard to the hire and tenure of employment of Joseph Peidl to
discourage membership in the T. W. 0. C. We further conclude
that by this conduct, the respondent has interfered with, restrained,
and coerced its employees in the exercise of their rights as guaran-
teed in Section 7 of the Act.
The work of Joseph Peidl having ceased as a result of an unfair
labor practice, he retained his status as an employee of the respond-
ent within the meaning of Section 2 (3) of the Act. Although
from the time of his discharge to the date of the hearing he was
being employed by the T. W. 0. C. as a full time organizer, and at
a salary substantially equal to that which he had been receiving from
the respondent," we nevertheless find, partly on the ground of his
desire for reinstatement to the employ of the respondent, that he
has not obtained any other regular and substantially equivalent em-
ployment so as to terminate his status as an employee of the respond-
ent, within the meaning of Section 2 (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
THE REMEDY
In addition to an order to cease and desist from its unfair labor
practices, we shall affirmatively require the respondent to offer re-
instatement to Joseph Peidl. Although he is entitled to back pay
from the date of the discriminatory discharge, less any amounts
earned by him during such period, we will not order the respondent
to pay the small sum involved in view of the fact that it was indi-
cated at the hearing that Peidl does not desire this remedy.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following conclu-
sions of law :
n Peidl's salary from the respondent had been $20 .40 per week ; his salary from the
T. W. O. C has been $ 20 00 per week.
DECISIONS AND ORDERS 305
1. Textile Workers Organizing Committee is a labor organiza-
tion, within the meaning of Section 2 (5) of the Act.
2. The respondent, by discriminating in regard to the hire and
tenure of employment of Joseph Peidl, has discouraged and is dis-
couraging membership in the T. W. O. C. and has thus engaged in and
is engaging in an unfair labor practice, within the meaning of Sec-
tion 8 (3) of the Act.
3. Joseph Peidl was at the time of his discharge by the respondent,
and has been at all times since, an employee of the respondent, within
the meaning of Section 2 (3) of the Act.
4. The respondent, by spying upon, questioning, threatening and
instructing its employees with respect to membership in and the man-
ner and extent of their activities on behalf of the T. W. O. C., and
by the conduct set forth in paragraph 2 above, has interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the meaning of Section
8 (1) thereof.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the 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,
Botany Worsted Mills, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
a. Discouraging membership in Textile Workers Organizing Com-
mittee, or any other labor organization of its employees, by discharg-
ing, refusing to reinstate, or otherwise discriminating against its em-
ployees in regard to hire or tenure of employment or any term or
condition of employment;
b. In any manner maintaining or encouraging surveillance of its
employees in the exercise of their right to join or assist Textile
Workers Organizing Committee, or any other labor organization of
its employees;
c. Questioning, threatening, or instructing its employees in respect
to the exercise of their right to join or assist Textile Workers Organ-
izing Committee, or any other labor organization of its employees;
d. In any manner interfering with, restraining, or coercing its em-
ployees in the exercise of their right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
306 NATIONAL LABOR RELATIONS BOARD
ties, for the purposes of collective bargaining or other mutual aid
or protection.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
a. Offer to Joseph Peidl immediate and full reinstatement to his
former position, without prejudice to his seniority or other rights and
privileges;
b. Post immediately notices in conspicuous places where they will
be observed by the respondent's employees, stating : (1) that the re-
spondent will cease and desist as aforesaid; (2) that such notices will
remain posted for a period of thirty (30) consecutive days from the
date of posting;
c. Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this order what steps the re-
spondent has taken to comply herewith.