Stehli and Co., Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1939

11 N.L.R.B. 1397 (N.L.R.B. 1939)

In the Matter Of STEHLI AND Co., INC. and TEXTILE WORKERS UNION
OF LANCASTER, PENNSYLVANIA AND VICINITY, LOCAL # 133 1
Cases Nos. C-463 and R-595.-Decided March 30, 1939
Silk Manufacturing Industry-Interference, Restraint, and Coercion: oral
and published expressions of opposition to "outside" labor organizations ; dis-
crediting union and union leaders ; strike broken by soliciting and inducing
individual strikers to return to work by promising the best positions to those
who repudiated the strike first ; discharging employee for inciting concerted
activity in protest to wage cut-Company-Dominated Union: domination of
and interference with formation and administration ; use of by employer
as bulwark against "outside" unionization; encouragement of inside organiza-
tion by discouragement of outside organization ; participation by supervisory
employees ; dominated organization passed through three phases, under a
different name for each phase ; successfully established only after employer
had refused to bargain with genuine union, had broken its strike, and had
announced to its employees that under its policy it was unfair to deal with
an outside union ; disestablished, as agency for collective bargaining-Unit
Appropriate for Collective Bargaining: production and maintenance employees,
excluding office help, salesmen, watchmen, firemen, truckmen, executives, super-
intendents, foremen, assistant foremen, and those doing supervisory work-
Representatives: proof of choice : membership in union ; participation by a
majority of employees in strike called by union and preferred by employer as
means of testing union membership places burden on employer to offer rea-
sonable method of determining majority, if he doubts union's majority-Col-
lective Bargaining: failure to cooperate with union to reasonable extent to
enable it to prove its majority ; desire to test union's strength by means of a
strike ; refusal to consent to election except on condition that strike, in which
great majority of employees participated, be called off immediately; refusal to
make available at plant anyone authorized to negotiate with union ; responsi-
bility for local agent's misrepresentations to his superior of union's proposals ;
deliberate plan and policy not to deal with outside union ; employer ordered
to bargain with union-Strike: caused at least in substantial part, and pro-
longed, by employer's unfair labor practices-Strike Broken: by soliciting
strikers individually and offering most desirable jobs to those who repudiated
strike and returned to work first-Discrimination: inducing strikers to return
to work during strike, offering those who returned first most desirable jobs ;
refusal to reinstate to former or substantially equivalent employment those who
applied for reinstatement at expiration of strike; charges of, not sustained as
to five persons ; charges of, sustained as to one employee who encouraged
others to engage in concerted activity before organization of union-Rein-
statement Ordered: employees discriminatorily laid off, discharged, or refused
reinstatement to former or substantially equivalent employment at termination
'Incorrectly designated as Textile Workers of Lancaster and Vicinity, Local No 133,
In the complaint. At the hearing the complaint was amended to designate the Union
under the name appearing In the caption above.
11 N. L. R. B., No. 124.
164275-39-vol xi-89 1397
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of strike , displacement of employees hired during strike , but not employed at
commencement of strike , and of employees given preferable jobs because they
repudiated strike as a result of employer 's inducements ; if not enough work
available , employees to be placed on preferential list to be offered employment
as it becomes available-Back Pay: awarded , to employees discriminatorily
laid off, discharged , or refused reinstatement to former or substantially equiva-
lent employment at termination of strike , from date of discrimination to date
of offer of reinstatement or placement upon preferential list, excluding period
between date of Intermediate Report and date of Order in case of two em-
ployees as to whom Trial Examiner recommended dismissal of complaint ;
monies received by employees for work performed upon Federal , State, county,
municipal , or other work-relief projects to be deducted and paid over to
agency which supplied funds for said projects-Investigation of Representa-
tives: petition for, dismissed , in view of order to employer to bargain-
Definitions : charge; complaint-Trial Bxaminer : error to refuse to make find-
ings in Intermediate Report as to specific allegation in complaint where charge
though not mentioning it provides a proper basis for setting forth such a
violation.
Mr. Jack Davis, for the Board.
Mr. S. R. Zimmerman and Mr. Bernard M. Zimmerman, of Lan-
caster, Pa., for the respondent.
Mr. Isadore Katz, of Philadelphia, Pa., and Mr. Sidney L. Cahn,
of New York City, for the Union.
Mr. W. Hensel Brown and Mr. J. Hay Brown, of Lancaster, Pa.,
for the Independent.
Miss Anne E. Freeling, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On July 7, 1937, W. Curtis Yerger, district director of Textile
Workers Organizing Committee, herein called the T. W. O. C., filed
with the Regional Director for the Fourth Region (Philadelphia,
Pennsylvania ) a petition alleging that a question affecting com-
merce had arisen concerning the representation of employees of
Stehli & Co. Inc.,2 of Lancaster, Pennsylvania, herein called the
respondent , and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. On July 20,
1937,. Local 133, Textile Workers Organizing Committee, filed with
the Regional Director charges alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting
2It appears from several documents submitted in evidence by the respondent that this
is its correct name.
STEHLI AND CO., INC., ET AL. 1399
commerce within the meaning of Section 8 (1), (2), and (5) of
the Act.
On September 11, 1937, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 1, as amended, ordered an investigation
and authorized the Regional Director to conduct it and to provide
for an appropriate hearing upon due notice; and, acting pursuant
to Article III, Section 10 (c) (2), and Article II, Section 37 (b),
of said Rules and Regulations, further ordered that the represen-
tation proceeding and the proceeding in respect to the alleged unfair
labor practices be consolidated for the purpose of hearing, On
October 20, 1937, Textile Workers Organizing Committee 3 filed with
the Regional Director amended charges alleging that the respondent
had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1), (2), (3), and (5)
of the Act.
On October 22, 1937 the Acting Regional Director for the Fourth
Region issued a complaint alleging that the respondent had engaged
in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1), (2), (3), and (5) and Section
2 (6) and (7) of the Act. Copies of the complaint, accompanied by
notice of hearing thereon and by notice of hearing in the representa-
tion proceedings based on the petition, were duly served upon the
respondent, the Union, and the Independent Silk Workers Union of
Rossmere, herein called the Independent, a labor organization which
is described and discussed in Section III C below.
The complaint alleged in substance (a) that in May, July, and
September, 1937, the respondent dominated and interfered with the
formation and administration of three named labor organizations
and contributed financial and other support to them; (b) that on
or about June 28, 1937, the respondent refused to bargain collectively
with the Union as the exclusive representative of the respondent's
employees in an appropriate unit; (c) that as a result of these and
other specified unfair labor, practices, many of the, respondent's em-
ployees went out on strike on or about August 9, 1937; (d) that the
respondent discharged and refused to reinstate certain named em-
ployees, and discriminated in regard to the hire, tenure, and condi-
tions of employment of certain named employees, and refused to
3 The correct name of the local organization involved in these proceedings , as it ap-
pears on the charter granted to it by the T. W. 0. C., is Textile Workers Union of
Lancaster , Pennsylvania and Vicinity , Local #133, herein called the Union . It is made
clear by the complaint, as amended during the hearing, that Verger, who signed the
petition, charges, and amended charges , was acting on behalf of the T. W. 0. C., and
more specifically , as is indicated in the charges , on behalf of Local 133.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstate them to their regular employment, because of their mem-
bership in and affiliation with the Union, and because they engaged in
other concerted activities for their mutual aid and protection and for
the purposes of collective bargaining; and (e) that by these and
other specified acts and conduct, the respondent interfered with, re-
strained, and coerced its employees in the exercise of their rights
to self-organization and to engage in concerted activities for their
mutual aid and protection. The respondent filed an answer to the
complaint, dated October 27, 1937, admitting the allegations concern-
ing its incorporation and business, but denying that it had engaged in
the alleged unfair labor practices.
Pursuant to notice, a hearing on the complaint and petition opened
at Lancaster, Pennsylvania, on November 1, 1937, before Earl S.
Bellman, the Trial Examiner duly designated by the Board. The
hearing closed on December 15, 1937. The Board, the respondent, and
the Union were represented by counsel and participated in the hear-
ing. At the outset of the hearing, the Independent filed an answer to
the complaint, denying in substance that the respondent had domi-
nated and interfered with the formation and administration of, or
had contributed financial or other support to, any of the three named
labor organizations. On November 3, 1937, the Independent filed a
written motion to intervene. This motion was granted by the Trial
Examiner. This ruling is hereby affirmed. The Independent was
represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
produce evidence bearing on the issues was afforded all the parties.
During the hearing, counsel for the Board moved to amend the
complaint by dismissing the allegations of discrimination against cer-
tain named employees, and by adding allegations of discrimination
against George D. Booth. The Trial Examiner granted these mo-
tions.' At the close of the Board's case, counsel for the Board moved
to amend the complaint to conform to the proof in all respects, and
more particularly with regard to correcting the name of the Union
and the names of individuals which were misspelled in the com-
plaint. The Trial Examiner granted this motion only.. in so far as it
related to correcting the name of the Union and the names of indi-
viduals named in the complaint. During the course of the hearing
the Trial Examiner made rulings on other motions and objections
to the admission of evidence. The Board has reviewed the rulings
of the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
On February 28, 1938, the Trial Examiner filed an Intermediate
Report, copies of which were duly served upon all the parties, find-
' See footnote 36, infra.
STEHLI AND CO., INC., ET AL. 1401
ing that the respondent had engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8 (1), (2), (3),
and (5) and Section 2 (6) and (7) of the Act. He recommended
(1) that the respondent cease and desist from its unfair labor prac-
tices; (2) that the respondent, upon request, bargain collectively
with the Union as the exclusive representative of the employees in a
unit found to be appropriate for the purposes of collective bargain-
ing; and (3) that the respondent offer to reinstate in their former
positions, and make whole for any loss of pay they may have suffered
by reason of the respondent's discriminatory action, 15 individuals
named in the complaint. The Trial Examiner further recommended
that the allegations of the complaint that the respondent discrimi-
nated against eight named individuals, thereby discouraging mem-
bership in the Union, be dismissed.
Thereafter, the respondent and the Union filed exceptions to the
Intermediate Report. We have considered all the exceptions to the
Intermediate Report, and, save as to those which are consistent with
the findings, conclusions, and order set forth below, find them to be
without merit.
On March 14, 1938, S. R. Zimmerman, counsel for the respondent,
requested that the Board grant him an opportunity to argue orally
before the Board or to file a brief. The Board granted him per-
mission to file a brief, but he did not avail himself of the opportunity.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Stehli & Co. Inc., is incorporated under the laws
of the State of New York, and is registered to do business in Penn-
sylvania, Virginia, Missouri, Illinois, and California. All the stock
in the corporation is owned by members of the Stehli family. The
officers of the respondent are Emil J. Stehli, president and treasurer,
and Henry E. Stehli, vice president and secretary. The directors
are Emil J. and Henry E. Stehli of New York City, and Robert
Stehli of Zurich, Switzerland. Although the present corporation
was organized in this country in August 1914, the Stehli family has
been engaged in the silk industry in Switzerland since 1840 and in
this country since 1880, at which time Stehli & Co. A. G., of Zurich,
Switzerland, had a selling agent here. The business was later
carried on as a partnership, with Emil Stehli in control of the oper-
ations in this country. The respondent's first weaving mill in this
country was established in Lancaster, Pennsylvania, in 1898.
The respondent's main office is in New York City. Its principal
plant, which is the only one involved in these proceedings, is in Ross-
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mere, just outside of Lancaster, Pennsylvania, and is referred to as
either the Rossmere or the Lancaster plant. The respondent. also
owns and operates throwing plants at Waynesboro and Harrison-
burg, Virginia, and owns plants at High Point, North Carolina
and Manheim, Pennsylvania, which it leases to other companies.
The Rossmere plant is chiefly a weaving plant. The raw mate-
rials used consist mainly of rayon and silk, but also include cotton,
wool, and other miscellaneous yarns. The yarns are treated when
necessary, and then woven into fabrics, which are transported to
plants, some of which are within and others outside Pennsylvania,,
for finishing and dyeing. They are then transported to respondent's
New York office for marketing.
In the period from October 3, 1936, to October 2, 1937, the Ross-
mere plant received more than 3,200,000 pounds of rayon and more
than 150,000 pounds of silk. More than 90 per cent of this rayon
and silk is imported from China, Japan, Italy, Maryland, Virginia,
Delaware, Tennessee, and West Virginia. During this period, about
60 per cent of all the raw materials shipped to the Rossmere plant
were produced at the respondent's throwing plants in Virginia and
at other plants outside Pennsylvania not owned by the respondent.
During the same period, the Rossmere plant produced in excess
of 12,000,000 yards of fabric, having a total sales value of approxi-
mately $5,600,000, of which in excess of 11,080,000 yards, or more
than 90 per cent, were shipped to dyers and finishers located in
Virginia, North Carolina, New Jersey, New York, Rhode Island,
Massachusetts, and Connecticut, from which points the merchandise
was then transported to the respondent's New York office for market-
ing. Approximately 6,000,000 yards of the respondent's products
were sold to customers in New York City, 5,000,000 yards were sold
and transported to customers throughout the United States, and
about 100,000 yards were exported to customers in Cuba, Mexico,
Australia, and Argentina.
During this period, the respondent purchased through its New
York office in excess of 1,000,000 yards of woven fabrics manu-
factured in North Carolina, Virginia, Massachusetts, New Hamp-
shire, South Carolina, and Tennessee, having a sales value of approx-
imately $500,000. This merchandise was shipped to, and dyed and
finished by, plants in New Jersey, Pennsylvania, Virginia, North
Carolina, Rhode Island, and Massachusetts, and was then trans-
ported to the respondent's New York office for marketing.
In addition to the business described above, the respondent, through
its New York office, purchased on consignment from the Swiss cor-
poration, and sold throughout the United States, about 6,000 yards of
finished silk.
The respondent admits that it is engaged in interstate commerce.
STEHLI AND CO., INC., ET AL.
II. THE ORGANIZATIONS INVOLVED
1403
Textile Workers Union of Lancaster, Pennsylvania and Vicinity,
Local #133, is a labor organization affiliated with the Textile Work-
ers Organizing Committee, from which it received its charter on
July 7, 1937, and which, in turn, is affiliated with the Committee for
Industrial Organization. It admits to membership employees of the
respondent.
Independent Silk Workers Union of Rossmere is an unaffiliated
labor organization, all of whose members are employees of the re-
spondent at its Rossmere plant.
III. THE UNFAIR LABOR PRACTICES
A. Background
The dominant characteristic of the respondent's labor policy for
the past 39 years has been aggressive hostility toward labor organi-
zations and, in particular, "outsiders," that is, affiliated labor organi=
zations. This policy is made clear by the events and the respondent's
conduct set forth below.
Attempts were made as early as 1907 to organize the employees
at the Rossmere plant. Assistant Manager Stauffer, who was a fore-
man in 1907, testified that "In 1907 there was an effort on the part
of the I. W. W.6 to organize our mill. They succeeded in a way. I
don't remember how many members they had, but there was a com-
mittee of about a dozen that came into the office to make certain
demands upon Mr. Schneebeli, who was the manager at that time.
And, of course, Mr. Schneebeli refused them, even without consulting
New York. At least I don't think he consulted them at that time."
Stauffer further testified that "of course, these people went out of the
office and went out through the mill and called the people out . . .
Then they did some picketing for several days . . . My recollec-
tion is that perhaps one-third of them went out." The respondent,
however, claims that during that strike its plant was picketed largely
by "outsiders" rather than by its own employees. The result of this
experience was to leave the respondent's officials and supervisory em-
ployees, several of whom are still employed at the plant, with a
strong feeling of hostility toward labor organizations.
In 1934, United Textile Workers of America, Local No. 2083, herein
called the U. T. W., called a general strike. The Rossmere plant was
picketed during this strike by a few of the respondent's employees,
but for the most part, the respondent claims, by "outsiders" who were
sent to Rossmere from various parts of Pennsylvania. Joseph A.
6 Industrial Workers of the World.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wolf was the respondent's personnel manager at that time. His em-
ployment was severed in March 1936, after 16 years' service with the
respondent, but the respondent admitted at the hearing that his dis-
charge was due entirely to a general retrenchment in expenses. Wolf
testified that, according to instructions among the management, "We
always tried to keep down a union of employees; that is, we would
not hire anybody that we knew was affiliated with the union." He
testified further that "I was always informed [by the general man-
ager] that if the union would ever get hold on us we would lose our
jobs, or I would lose my job as well as he would lose his job." This
policy of repressing union activity was discussed from time to time
by the manager, superintendents, and foremen, and, from remarks
made to employees by these supervisors, inevitably became known
to the employees throughout the plant. Sometime in 1933 or 1934,
Wolf instructed William Albert, an employee, to keep him informed
concerning membership of the respondent's employees in the U. T. W.
Albert became secretary of the U. T. W. and was therefore in a stra-
tegic position to obtain for Wolf the desired information, which Wolf
in turn conveyed to the general manager and other officials at the
plant. Albert was compensated for these activities by higher wages
and other payments. There were only three U. T. W. members in
Wolf's department on the first shift. Wolf did not discharge any of
them for union activities, but when one of them, Ray Wiley, was sent
home because the work ran out on his looms, Wolf did not later call
him back to work because, "to be truthful, I guess because he be-
longed to the textile workers." Wiley did not reapply for work because,
Wolf stated, "I believe he knew he was not wanted to come back be-
cause of his affiliation with the union." Several witnesses testified that
five or six employees were discharged in 1934 for joining the U. T. W.
Wolf had no personal knowledge of what action was taken in regard
to U. T. W. members in other departments or on other shifts than his
own. He did, however, state that he understood that those employees
who went out during the 1934 strike were "taken back a little while
afterwards, but not for the time being." The respondent's employ-
ment records indicated that most of the men who were allegedly dis-
charged in 1934 for union activities had quit on or about March 21
and had been reemployed the following October or November.
The respondent's officials denied that certain "disturbances" about
which a number of witnesses testified constituted "labor disputes."
For example, the respondent, in November 1936, experimented with
a new system whereby it would be able to reduce the number of its
employees. After this experiment had been in effect for a few weeks,
the weavers who were affected by the new system were able to earn
more than they had earned prior thereto. The amount of their work,
STEHLI AND CO., INC., ET AL. 1405
however, increased to a greater extent than they thought their in-
creased earnings warranted. So much dissatisfaction resulted from
this experiment that it was discontinued after a few months.
In February 1937, the respondent reduced the rates paid to employ-
ees operating certain looms. The result of this rate reduction was a
stoppage of work by some of the weavers on the third shift, which was
continued by the men coming in on the first shift. Huber, general
manager of the plant, consented to discuss the matter with a few
representatives of the employees who had stopped work. whereupon
three of their leaders were selected. It was agreed that the matter
should be adjusted by removing the shuttle fillers on the looms affected
by the reduction in rates, the weavers to fill their own shuttles and re-
ceive the original rates. George Booth, who was one of the leaders
in this dispute, was discharged the next dayr His case is discussed
below in Section III D 3.
In spite of the labor difficulties set forth above, the respondent, al-
though admitting that there were from time to time individual com-
plaints and requests for wage increases, which were to be expected
in the normal course of operations, denied that there had been any
"labor disputes" at the plant, or any general dissatisfaction. Stehli 6
testified that it seemed to him that "a labor dispute must represent a
few more than the regular kickers. In any one thousand employees
you may have ten per cent who are kickers, or at least a maximum
of ten per cent. Perhaps, sometimes, it is even less than that. There
are always a few people who are dissatisfied with the whole situation.
If those figures constitute a labor dispute that is one thing. If they
do not, I say that Stehli would never have had a labor dispute." He
testified further that he knew there was no general dissatisfaction at
the plant since he had talked to about 15 or 20 employees, some of
whom "had been with us so long that I knew some of them since I
used to come down here as a fourteen year old kid . . . I would
ask them if there was any dissatisfaction or kicking; and they said
it was a lot of hooey." When asked if he had not heard "witness
after witness take the stand and testify that the salaries they were
earning at the Stehli mill did not enable them to live properly," he
answered, "That is pretty facetious. I don't know why they want
to come back to work, then." When reminded that a number of his
employees had voted to insert into a proposed contract, which they
presented to the respondent in June 1937, a provision for a 20-per
cent increase, Stehli said, "Oh! that doesn't indicate anything . . .
Of course, they would vote themselves a raise if they could get it.
I would vote myself a raise on somebody's money if I got a
chance." Several employees testified about statements made to them
6 Except where otherwise indicated , the Stehli referred to herein is Henry Stehl!
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at various times by supervisory employees, particularly during 1937,
when the Independent was being organized, to the effect that the
respondent would never recognize any "outside" union, that it would,
in fact, prefer to close the plant and move south. Stehli frankly
stated, both on the witness stand and in an advertisement in the local
newspapers addressed to the respondent's employees during the 1937
strike, discussed below in Section III-C-3, his dislike for and opposi-
tion to "outside', organizations.
The above facts and other evidence in the record show that the
respondent has consistently pursued a policy of imputing to "out-
siders" its labor difficulties and dissatisfaction among its employees,
and for that alleged reason has always resisted the organization of
its employees in an affiliated union. That this was the policy of the
respondent, and that it was known to the employees, is fully borne
out in Section III-C-3 below, where it is shown that the respondent
frankly stated its position for the past 39 years to have been one of
opposition to dealing with "outsiders."
B. Domination of and interference with the formation and
administration of the Independent
The complaint alleges that the respondent has dominated and inter-
fered with the formation and administration of, and has contributed
financial and other support to, three labor organizations of the em-
ployees at its Rossmere plant, one in May 1937 known as Stehli In-
dependent Silk Workers Association, one in July 1937 known as Inde-
pendent Silk Workers Union of Employees of Stehli, Inc., and one
in September 1937 known as Independent Silk Workers Union of
Rossmere.
On April 17, 1937, the members of the U. T. W. voted to affiliate
with the T. W. O. C., which issued a charter to this local on July 7,
1937, designating it as Textile Workers Union of Lancaster, Penn-
sylvania and Vicinity, Local #133. This organization will be called
the Union with reference to its activities after April 17, 1937.
On May 2, 1937, the T. W. O. C. held a general meeting of all the
textile workers in Lancaster. Following this meeting a number of
the respondent's employees joined the Union, although they were
fully aware from the respondent's known hostility to outside labor
organizations that the respondent would oppose any attempt to or-
ganize an outside union in its plant.
Shortly after May 2, a group of employees, headed by Ivan Reich,
•a brother of Walter Reich, superintendent on the third shift, began
the formation of an unaffiliated union. Ivan Reich has been em-
ployed by the respondent as a loom fixer for the past 2 years, and
was formerly a foreman for about 8 years. Reich testified that he
STEHLI AND CO., INC., ET AL. 1407
and several other employees had frequently discussed the advantages
of organizing an unaffiliated union, but they took no action in the
matter until they were spurred on by the T. W. O. C. meeting on
May 2. Several of the organizers who aided Reich testified that
their purpose was "To protect ourselves and also protect the com-
pany so we would have work." They wanted to obviate the pos-
sibility of strikes, which might prevent the company from operating
and filling orders "to such an extent that it would have to close down,
or something like that." Some of the organizers testified that one
of their main purposes was to keep out the T. W. O. C. They also
thought that "If for no better purpose it would be for a social
organization."
Reich testified that he discussed the organization of an unaffiliated
union with Beazley and Lerbscher, superintendents, although he
knew he had the right to organize, because "My job is my job, the
same as yours is yours. . . . I don't want to do anything out there
against the firm." When asked why he felt it necessary to obtain
permission from his supervisors to exercise a right which he knew
he had, he said he could not answer that question. Beazley testified
that when Reich and Edgar Norton, another loom fixer, first came
to him to discuss organized labor in general, he told them he was
in a position where he did not dare advise them what to do. Reich,
nevertheless, came to him again some time in May, told him he in-
tended to start an unaffiliated union, and asked him for some in-
formation. Beazley then told him, "Ivan, I am not allowed to do
that. You fellows must have brains enough, if you have looked
into this thing, to go ahead and follow your trend of mind."
Although it thus appears that he was told that the management could
not interfere in such matters, Ivan Reich and some of the other or-
ganizers nevertheless continued to discuss their organization from
time to time with supervisory employees, and to report to them on
their progress. We are satisfied that this feeling on the part of
the organizers that they had to secure the respondent's permission
to form an unaffiliated union sprang from their knowledge that the
respondent was opposed to unions and that they would run less risk
of losing their jobs if they kept their supervisors informed and
secured their approval. Thus the respondent's hostility to unions was
from the outset a primary factor shaping the formation of this
inside union.
On May 15, 1937, a meeting of all the employees at the Rossmere
plant was called by Ivan Reich, at which about 300 were present.
Reich had invited one Lightner, an attorney, to attend for the pur-
pose of explaining the Act. Some of the questions asked Lightner
pertained to whether it was permissible for Anne Wilson and Paul
Moore, supervisory employees, to go around the plant during work-
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing hours soliciting names on a petition for an unaffiliated union.
It developed during the meeting that the majority of those present
seemed to be in favor of a T. W. O. C. union rather than an un-
affiliated union, to the extent, as Ivan Reich testified, that the meet-
ing was "stolen" from him. There was so much controversy between
the two groups that it was finally decided that they should elect a
chairman for the meeting. The chairman designated two com-
mittees of three members each, one composed of men who advocated
a T. W. O. C. union, the other of men who advocated an unaffiliated
union. The committees were instructed to sign up employees in their
respective organizations.
During this period of organization, those in favor of 'an inside
union and those in favor of affiliating with the T. W. O. C. were
active in the plant during working hours, but this was true to a far
greater extent of those working on behalf of an unaffiliated union.
Petitions indicating a preference for an inside union were circulated
openly in the mill during working hours. Some of these petitions,
moreover, were circulated by Paul Moore, who was in charge of the
stockroom, and Anne Wilson, a forelady. The petitions were signed
by several supervisory employees. After a number of employees
had testified about statements made by supervisory employees en-
couraging and, in some cases, urging them to become members of
the unaffiliated organization, all the parties, in order to avoid calling
numerous additional employees to testify to the same effect, stipulated
that if called and sworn, six additional named employees "would
testify that at various times from May until September or October
1937 they were spoken to by persons heretofore identified as fore-
ladies and assistant foreladies in the warping and winding depart-
ments and by Paul Moore, heretofore identified in the record as
being in charge of the stock room, and that the said conversations
would indicate that they were approached and spoken to in the plant
relative to a so-called company union and membership therein."
The loom fixers also preferred an unaffiliated organization, and
several of them were active in the attempts to form one. The loom
fixers' duties require them to keep in repair the looms in the sec-
tions to which they are assigned. Although they do not have the
power to hire and discharge weavers, they do have some supervision
over their work. They are responsible for the quality of the work
of the weavers under them to the extent that they are penalized or
receive a bonus according to whether the work is below or above a
certain standard. They report inefficient weavers to their superiors,
and if a weaver's inefficiency continues, they may recommend his dis-
charge. They are more highly paid than other classes of employees,
since their work requires more skill and training. A number of these
loom fixers, furthermore, were foremen until a few years ago, when,
STEHLI AND Co., INC., ET AL. 1409
during a reorganization, the classification of foremen fixers was dis-
continued. Many of the weavers continue to regard the loom fixers as
their supervisors. The close identity of the loom fixers with the man-
agement is further borne out by the fact that when the respondent
sought to break the 1937 strike by soliciting the striking employees
individually to return to work, it selected as its emissaries loom fixers
and foremen, as is discussed more fully in Section III-C-3 below.
Under all the circumstances, it is a reasonable inference that the loom
fixers were acting as agents of the respondent in assisting in the
organization of the Independent, and we so find.
As is shown in Section III A above, during the period when the
loom fixers were foremen, repression of union activity was one of the
duties of supervisory employees. There is nothing in the record to
show that the respondent changed this policy after the effective date
of the Act. It appears, on the contrary, that that policy continued
until the time of the hearing. Their closeness to the management,
and their former status as foremen, made the loom fixers even more
keenly aware than were the rest of the employees of the respondent's
hostility toward affiliated labor organizations. Thus, even conceding
that loom fixers were not formally agents of the respondent in assist-
ing in the formation of the Independent, we nevertheless impute their
acts and conduct to the respondent since the loom fixers engaged in
such acts and conduct as a consequence and in furtherance of the
respondent's policy of opposition to outside unions.
The first of the three attempts to organize an unaffiliated union
began in May 1937, shortly after the meeting of the textile workers
called by the T. W. 0. C. This first organization was known as
Stehli Independent Silk Workers Association. The attempt was un-
successful inasmuch as officers were not elected and meetings were
attended" for the most part only by the organizers. These organiz-
ers about a month later sought to stimulate interest in their union by
changing the name, this time calling it Independent Silk Workers
Union of Employees of Stehli & Co. Inc., Lancaster, Pennsylvania,
by issuing new membership cards, and by distributing a number of
printed circulars urging the employees to support an inside organiza-
tion. This second attempt was also unsuccessful and was abandoned
after about a month, no one having attended the last meeting. Reich
became discouraged and discontinued his efforts to organize an inside
union. Clarence Davis, who has been employed by the respondent
on and off since April 1900, and some of the other organizers per-
severed in their endeavors and made a third attempt to organize an
inside union shortly after the termination of the August 1937 strike,
discussed below. This third attempt took place after the respondent
had refused to bargain with the Union even though it represented
a majority of its employees, as found in Section III-C below, as a
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
result of which unfair labor practice the members of the Union had
been demoralized, and also after the respondent had made it clear to
all its employees that it would not deal with an outside union. Davis,
who became financial secretary of the Independent, and some of the
others who had been active in all three attempts to form an inside
union, testified that the three organizations were really a continua-
tion of one and the same organization. This third attempt received
considerable impetus from a statement and ail advertisement which
the respondent had had published in the local newspapers during the
August 1937 strike expressing its willingness to negotiate with its own
employees and its feeling "that it is unfair to deal with outside
groups," 7 as well as from the numerous oral statements made by
supervisory employees before, during, and after the strike to the effect
that the C. I. 0. was composed of radicals, that John L. Lewis was
a communist, and that the respondent would prefer to close the plant
and move south rather than deal with an outside union.,,
The guiding spirit of the third organization was George Witt-
linger, an employee who began working for the respondent about
33 years ago, and has worked there uninterruptedly since 1919. As
a result of their long service, Davis and Wittlinger were fully cog-
nizant of the respondent's hostility to outside organizations. Witt-
linger had the name of the organization changed once more, this
time to Independent Silk Workers Union of Rossmere, with the
hope of injecting new spirit into this renewal or continuation of
the attempt to form an inside union, as well as for the purpose of
eliminating "Stehli" from the name of the organization. Reich
turned over to Wittlinger the membership cards which he had ac-
cumulated. The first few meetings of this third organization were
just as sparsely attended as were the meetings of its two predecessor
organizations. Almost all those who attended these meetings, more-
over, were loom fixers who had formerly been foremen. W. Hensel
Brown, counsel for the Independent, or his brother, J. Hay Brown,
customarily attended these meetings, and dismissed some of them
because there were not enough people present to take any action.
At a meeting on Sunday, September 26, however, the Independent
was finally organized formally to the extent that some of the officers
were elected. Harry Reyburn, an employee who was chosen presi-
dent at this meeting, testified that a committee was appointed to
call on Huber, general manager, the following day to ascertain the
steps necessary to secure recognition as bargaining agent of the
employees, and whether or not it would be worth their while to
have a union of the kind they were trying to organize. William
' See Section III-C-3 , infra.
s See Section III-C-3, infra.
STLHLI AND Co., INC., 1T AL. 1411
File, an employee who was on this committee, testified that when
the committee asked Huber "if we would be allowed to organize
the independent union, if he had any objection ... He met it with
approval." Wittlinger, who was also on the committee, testified
that "Mr. Huber told us if we had a voting majority that they would
sooner recognize their own individual employees' organization than
an outside organization." 9 When Huber learned, however, that the
Independent did not represent a majority, he told them it was his
understanding that he could not, under the Act, recognize as col-
lective bargaining agent an organization which did not represent
a majority of the employees. However, he told them he would con-
sult with counsel or Stehli to ascertain whether or not this was
correct, and would give them a definite answer the following day.
Huber told the committee on the following day that his under-
standing had been verified and he could not recognize them until
they had obtained a majority.
There was another meeting of the independent group on October
9 for which invitation cards, made out in the names of those em-
ployees who were to be invited, were distributed in the plant. Frank
Zuercher, a member of the Union, testified that he attempted to
go to this meeting, but was refused admittance. He,remained out-
side the door, however, and watched those who entered. He testified
that 38 persons, practically all loom fixers, entered. Again a com-
mittee was appointed to call on Huber, since the Independent had
secured more members, although it still did not have a majority.
One reason why those who were organizing the Independent sent
committees to Huber to "demand the collective bargaining agency
for the workers," although they knew they did not represent a ma-
jority, was because they had been told of a plant where an organi-
zation representing a minority of the employees "had control, and
we thought we could do the same thing." Another reason was that
a Mr. Landis, who, although not an employee of the respondent,
was assisting the organizers of the Independent, had advised them
to seek a bargaining contract even though they did not have a ma-
0 The following testimony of Wittlinger indicates the extent to which the organization
of the Independent was aided by Huber's encouraging statements :
Q . . . When you went to Mr. Huber did he give his approval of your union?
A Ile did not exactly give his approval. He told us that he would sooner deal
with the individual employees than he would with an outside organization. He
also stated that he would be glad, if I recall correctly , to meet representatives of
the workmen at least once a month, or something to that effect.
Q And after that you were satisfied to go out and build up this organization?
A. Well, that was one reason , I guess, that we did all get more interested in it,
I would say.
Q. You told the members what Mr. Huber said?
A. Naturally we told them.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jority. Wittlinger testified,10 on cross-examination by counsel for
the Board, that although he wanted the members of the earlier or-
ganizations to sign new=cards in the Independent, nevertheless, when
the committee told Huber during the conferences with him how many
members the Independent had, all those who had signed cards in
the earlier organizations were included. On redirect examination
by Mr. Brown, Wittlinger was not sure whether they were all new
cards or some that had been previously signed. However, when this
last-mentioned committee called on Huber on October 11, 1937, he
still refused to recognize the Independent as bargaining agent until
it represented a majority of the employees.
In the course of trying to organize an independent union, a num-
ber of circulars and various membership cards were printed from
time to time. The circulars urged the employees to join whichever
one of the inside unions was being organized at the time and warned
them against the dangers of affiliating with an outside union. Some
of this printed material bore the name of Paul Moore, a supervisory
employee, who was in charge of the stockroom, as a member of the
organizing committee. This printed material was for the most part
prepared by Reich and Wittlinger. William Albert, who had been
of such great assistance to Wolf, when Wolf was the respondent's
personnel manager, in maintaining surveillance of U. T. W. activi-
ties in 1934, was able to utilize that experience by aiding in the
formation of the Independent. For example, he helped to prepare
the various application cards for the several organizations. Reich
testified that lie personally paid for the printing and other expenses
incurred in the first two attempts to organize, for which he was not
reimbursed. Wittlinger testified that he paid out of his own pocket
the printing and other expenses for the third organization, for which
he was reimbursed on, October 23 out of the treasury of the Inde-
pendent, which had been accumulated from donations.
10 Wittlinger 's testimony in this connection was as follows
Q. At any rate , when you went to Mr. Huber later on you told him you had
some 300 and some cards signed up?
A. Yes.
Q. And he, Mr . Landis , an outsider who was aiding in the organization of the
Independent , suggested that you go in even though you did not have a majority
and try to get a bargaining contract'?
A. That was our instructions from him-to try it.
Q And at that time these cards included cards of the first union as well as
the second?
A. Yes ; I believe it did.
Q. And you were willing to consider all of these people who signed cards as
members of the Independent Union of Rossmere?
A. I did not suggest that they do that . I suggested that we try to get our
new cards signed over by those people who had signed the others . Yet we showed
Mr. Huber or told him how many cards we had ; and that is when he advised us
that he would have to consult his attorney
Q. And you told him bow many cards you had, and you included all of them?
A All of them ; yes, sir.
STEHLI AND Co., INC., ET AL. 1413
The printing for the Independent was done by Harry Althoff,
who also does some printing for the respondent, mostly in connec-
tion with a death-benefits association maintained by the respondent
and the employees jointly. Althoff entered the items of work done
for the Independent on the ledger sheets containing the respondent's
account, but explained that this was done only to simplify his records.
Two job jackets which he submitted in evidence, containing descrip-
tions of certain work done for the Independent, contain George
Wittlinger's name. The name, however, was obviously written in a
different handwriting. Althoff explained that his handwriting
usually varies when he is interrupted while writing something, and
that he must have been interrupted in the case of both job jackets
while he was writing Wittlinger's name. Althoff's testimony, on
the whole, was contradictory and evasive. Although the evidence
tends to indicate that the printing expenses of the Independent were
paid by the respondent, since the evidence is not entirely clear, we
will not so find.
It appears that the T. W. 0. C. was trying to organize the re-
spondent's other plants at about the same time as the Rossmere
plant. Unaffiliated organizations also sprang up at the Waynesboro
and Harrisonburg plants simultaneously with those at Rossmere.
Negotiations pertaining to the independent union at Waynesboro
were taken up by Arthur Shenk, manager of the Waynesboro plant,
with the New York office through Huber, general manager of all
three plants. Shenk testified that he was presented with petitions
for an independent union containing the names of about 90 per cent
of the employees. Stehli -testified in this connection that "The
manager went out and asked about 20 people and said, `Do you
belong to the Independent Union?', and from general information
they found practically nobody who did not belong. So we took it
for granted that the big majority belonged." The independent union
at the Waynesboro plant was organized around May 1937, and suc-
ceeded in being recognized by the respondent as the exclusive bar-
gaining agent within about a month. After discussing the negotia-
tions pertaining to the Waynesboro union, Stehli stated that "almost
exactly word for word the same thing took place at Harrisonburg
somewhat later." Stelili testified that he did not consider it neces-
sary to make any investigation as to whether or not these organiza-
tions had been aided in any way by the officials of the respective
plants inasmuch as the managers of both plants "were instructed to
have nothing whatsoever to do with unionism . . . towards the
end of April or the beginning of May, 1937 . . . shortly after"
the Act had been declared constitutional by the United States
Supreme,Court.
164275-39-vol. xi-90
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear from all the evidence that the respondent was opposed to
any form of organized activity on the part of its employees. It is
also clear that when the respondent became aware that the Union
was organizing its employees, it decided that if it must tolerate any
form of labor organization, an inside union would be the lesser of two
evils. The fact that the, organizers of the inside union became active
only after the Union had started its campaign; the strong feeling of
the organizers of the inside union that they had to consult their
superiors about their organizing activities; the active role in the
formation of the inside union played by supervisory employees and
loom fixers; the participation in the organization of the Independent
of William Albert, whose attitude toward labor organizations is illus-
trated by the respondent's employment of him to spy on U. T. W.
activities; the encouragement given to the organizers of the inside
union by Huber's statement that he preferred to deal with them rather
than with an outside organization; the stimulus given to the organizers
who, undismayed by the two previous failures, conducted the third
campaign, by the respondent's unlawful refusal to bargain collec-
tively with the Union, as found below, and by the published state-
ments of the respondent during the strike, indicating beyond a doubt
that it would negotiate, if at all, only with an inside organization; the
assistance flowing from the numerous statements made to employees
by supervisors expressing antagonism to any outside labor organiza-
tion; the simultaneous formation of unaffiliated unions and their
speedy recognition at two other plants of the respondent, of which
Huber was also manager; and the various other circumstances dis-
cussed in this section show unmistakably that the respondent has.
coerced and interfered with the right of its employees to bargain col-
lectively through representatives of their own choosing, and has stifled
any outside labor organization formed for the purposes of collective
bargaining, by the formation of an inside union which the respondent
could dominate and control. When all these facts are viewed against
a background of uncompromising hostility to "outsiders," a hostility
well known to its employees and on which the respondent prided
itself, there can be no doubt that the Independent was a creature of
the respondent.
We find that the respondent has dominated and interfered, with the
formation and administration of the Independent, throughout its
three phases, and has contributed support to it. We further find that,
by such acts, the respondent has interfered with, restrained, and
coerced its employees in the exercise of their rights to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection.
STEHLI AND Co., INC., ET AL. 1415
C. The refusal to bargain collectively; interference, restraint, and
coercion
1. The appropriate unit
The complaint alleges that the employees of the respondent engaged
in production and maintenance constitute a unit appropriate for the
purposes of collective bargaining. The respondent admitted this
allegation in its answer. During the hearing the Trial Examiner
granted a motion by counsel for the Board to amend the complaint
by striking therefrom the allegations with regard to the appropriate
unit and substituting therefor the following: The employees of the
respondent engaged in production and maintenance, with the excep-
tion of office help, salesmen, watchmen, firemen, truckmen, executives,
superintendents, foremen," assistant foremen, and those doing super-
visory work, constitute a unit appropriate for collective bargaining
within the meaning of Section 9 (b) of the Act. This amendment
amplifies the description of the appropriate unit to conform with
that designated in the Union's model contract. Counsel for the re-
spondent stated that he had no objection to this amendment. 1.2 The
unit set forth in the amended complaint is a normal industrial unit.
The record discloses no reason for departing from it.
We find that the production and maintenance employees, exclusive
of office help, salesmen, watchmen, firemen, truckmen, executives,
superintendents, foremen, assistant foremen, and those doing super-
visory work, employed in the respondent's plant in Lancaster, Pennsyl-
vania, constitute a unit appropriate for the purposes of collective bar-
gaining, and that such unit will insure to the employees the full benefit
of their right to self-organization and to collective bargaining and
otherwise effectuate the policies of the Act.
2. Representation by the Union of the majority in the
appropriate unit
The respondent introduced in evidence a complete list of employees
taken from its pay-roll records as of July 19 to July 31, 1937. All the
parties agreed to the use of the respondent's pay-roll records as of
these dates for the purpose of determining the number of employees in
"Apparently the stenographer inadvertently omitted the word "foremen" in reporting
the motion to amend the complaint. It is clear from the context of the motion as
reported that "foremen " should have been in the list of exclusions from the unit since
"assistant foremen" and "those doing supervisory work " are so listed . Moreover, in
subsequent references in the record to the appropriate unit, "foremen " are regarded as
excluded from the unit . Finally, the motion was made to conform the unit alleged in
the complaint with the unit set forth in the Union ' s model contract , which lists foremen
as excluded from the unit.
12 Although we regard the Independent 's contention as to the appropriate unit as
irrelevant since we have found it to be company -dominated , its claim that the appropriate
unit should consist of all employees except "salaried help" does not differ substantially
from that claimed by the Union
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the appropriate unit. The list classifies the employees alphabetically
by departments and contains a total of 1,093 names. After the re-
spondent indicated on this list those whom it admitted to be super-
visory or clerical employees, it claimed that the remaining 1,066 were
in the appropriate unit. However, we find upon checking the list of
1,066 names that it contains the names of 37 employees 13 who are not
within the appropriate unit. Accordingly we find that the respondent
employed at its Rossmere plant 1,029 in the appropriate unit.
The Union introduced its membership cards, with permission to
withdraw the cards and substitute therefor a typewritten list of its
members after the cards had been inspected and checked. During the
hearing the respondent checked the names on the Union's membership
cards against the respondent's pay-roll records, including its signature
records. On the basis of this check, the respondent conceded that the
Union had membership cards signed by persons who were employees
of the respondent at the time the cards were signed, and that the signa-
tures were genuine, to the extent indicated below :
June 28---------------------------------------------------- 383
July 20---------------------------------------------------- 432
August 10-------------------------------------------------- 530
August 11-------------------------------------------------- 541
August 12-------------------------------------------------- 543
August 13-------------------------------------------------- 545
August 16-------------------------------------------------- 547
September 23----------------------------------------------- 548
According to this list, the Union had 530 members on August 10.
We have checked the Union's membership list, however, and find that
the Union on August 10 had 528 members. Moreover, we find that
seven members of the Union are not within the appropriate unit.14
18 The names and positions of these employees are : Harry R Braught , supervisor of
the fixers on the automatic looms , and substitute on any one of the three shifts in the
absence of the superintendents and assistant superintendents ; Walter L. Shenk, who
described his position as "sort of a loom fixer and overseer ... All over the mill, and
sort of construction work," and who was formerly foreman of the sizing department in
charge of all three shifts ; Paul H. Moore, in charge of the men working in the stock-
room ; Elizabeth A. Gormley, Florence M Clegg , Dorothy P . Doner, Dorothy M . Flick,
Sue E . Stoner, and Helen M . Wenger, foreladies ; Emma G. Manning , Mathilda G . Myers,
Elizabeth V. Snader, Grace Smith, and Irene Kiehl , referred to by Huber as substitute
or assistant foreladies ; Charles Steinbaecher , foreman of sundry help ; Clarence D. Davis,
who works part of the time in the office ; Jacob G. Geist , Daniel D. Geist , John A. Gib-
son, Alfred C. Schneider , William J . Steinbaecher , Frederick J. Messer , Jr., E. Reese
Musser, and Clarence R. Doutrich , truck drivers ; Charles E . McElroy and John A. Frank,
who weigh the materials that come from the copping machines and enter the weights on
the coppers ' weight records , and who appear to be clerical employees and not production
and maintenance employees ; Frank Zuercher , Vernon E. Martin , Frank E. Decker, Sol E.
Logan, C. Quentin Myers, and Frederick Goos, clerks ; J. Willis Barr , Elias E . Coble, and
Oliver S. Herr , watchmen ; William G . Kratzert , fireman and engineer ; and Arthur A.
Smith , whose name was removed by stipulation inasmuch as he was employed for only
2 days.
14 The names and positions of these members are : Sue B. Stoner and Hazel Dagen,
foreladies ; Mathilda G. Myers, a substitute or assistant forelady ; Charles Steinbaecher,
foreman of sundry help ; Frank Zuercher , clerk ; Clarence R. Doutrich , truck driver ; and
Oliver S. Herr, watchman.
STEHLI AND CO., INC., ET AL. 1417
Thus, on August 10, the Union represented 521 of the 1,029 employees
in the appropriate unit. Since our check of the lists shows that on
August 9 the Union represented 511 employees in the appropriate
unit, August 10 is the earliest date on which the Union represented a
majority of the employees in the appropriate unit.
The Independent introduced in evidence a list of its members, con-
taining a substantial number, although not a majority, of the em-
ployees in the appropriate unit. It appears from a comparison of this
list with the Union's membership list that a number of the Union's
members joined the Independent after August 10, 1937. None of the
membership cards submitted by the Independent are dated prior to
September 1937. In view of our finding, however, that the respondent
dominated and interfered with the formation and administration of
the Independent, we consider irrelevant any defection in the ranks
of the Union which may have occurred subsequent to August 10
through its members joining the Independent. As we have had occa-
sion to state with respect to a similar situation :
The unfair labor practices of the respondent cannot operate to
change the bargaining representative previously selected by the
untrammeled will of the majority.15
We find that on August 10, 1937, and at all times thereafter, the
Union was the duly designated representative of the majority of the
employees in the appropriate unit for purposes of collective bargain-
ing, and, pursuant to Section 9 (a) of the Act, was the exclusive
representative of all the employees in such unit for purposes of col-
lective bargaining.
3. Refusal to bargain; interference, restraint, and coercion
(a) Events leading up to the strike
On June 26, 1937, the Union held a meeting at which about 150
employees were present, at which a shop committee of about 18 mem-
bers, representing the various departments at the respondent's plant,
was selected. W. Curtis Yerger, subregional director of the
T. W. O. C., read aloud a contract which was to be submitted to the
respondent. The meeting approved it paragraph by paragraph,
added a demand for a 20-per cent increase in wages, and authorized
Yerger to present the contract to Huber. On June 28 Yerger had a
conference with Huber and Stauffer. Huber claims that Yerger
stated that he represented over 700 employees. Yerger's version is
that he claimed that if an election were held, the Union would poll
15 Matter of Bradford Dyeing Association (U. S. A ) ( a Corporation ) and Textile
Workers' Organizing Comm%ttee of the 0. I. 0., 4 N. L. R. B. 604.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about 700 votes out of about 1,000 employees. Stauffer stated that
it was impossible for the Union to have over 700 members since the
Independent, which we find above to be company-dominated, claimed
to have over 300 members, and some employees, because of their
religious belief, would not join either organization. Stauffer stated
at the hearing that at the time of this conference he had no direct
information about the membership of the Independent, but had heard
rumors that it had about 300 members, which rumors he apparently
believed despite his statement, made at the hearing, that anyone
working in the mill heard so much gossip that "you disbelieved 971/2
per cent of everything you heard until it was proven to you."
Another reason for disbelieving this particular rumor was the fact
that the organizers of the inside union, as is brought out in Section
III B above, were at this time unable to induce more than a handful
of employees to attend meetings. Yerger suggested an election, and
it was agreed at this conference that that would be the best method of
settling the question of a majority. Huber, however, had no author-
ity either to negotiate an agreement or to consent to an election. He
stated that he would have to consult Stehli, and would give Yerger
a reply on July 2, 1937. Yerger notified the Board's Acting Regional
Director in Philadelphia about this conference, whereupon the latter
telephoned Huber and offered to send sample ballots and notices of
election.
When Huber telephoned Stehli about this conference with "out-
siders," Stehli told him to check up on the membership of the inside
union. Huber told Beazley, a superintendent who had been employed
by the respondent since 1902, to do so, and testified that Beazley
reported to him that the Independent had several hundred members
and he was sure the Union could not have 700 members. When this
information was conveyed to Stehli, he decided, according to his own
testimony, that Yerger did not represent a majority of the employees,
and that the respondent need, therefore, pay no attention to him, par-
ticularly since Huber assured Stehli that there were no labor disturb-
ances at the plant and these were "just outsiders who . . . are trying
to get in to the situation." Stehli testified that Yerger wanted to
bring in a group of people to discuss an election and there was
nothing to discuss, since he was an outsider and there were no labor
troubles. He further testified that he felt at that time that the Board
should order an election, and that the respondent "should not run
around and consent to one." He did not convey that idea to Yerger,
however, but simply stated that the respondent had nothing to nego-
tiate with him or his committee. Thus from the very outset the
respondent's hostility to the Union as "outsiders" was made manifest
STEHLI AND CO., INC., ET AL. 1419
and was the reason for the respondent's continuous procrastination
throughout its negotiations with the Union.
Yerger testified that on July 2 Huber told him on the telephone
that he agreed to an election. Thereupon Yerger made arrangements
with agents of the Board for an election to be held on July 12. On
July 6 Huber received a letter from the Regional Office containing
sample ballots and notices of election. On July 7 the Regional Office
telephoned Huber and suggested a conference concerning the election.
Huber agreed to hold such a conference the following day, and agreed
to permit Yerger to attend. When Huber telephoned the respond-
ent's New York office to report about this proposed conference, how-
ever, Emil Stehli told him that he had acted too hastily, and that he
wanted to consult counsel before any step was taken regarding an
election. Thereupon Huber telephoned the Board's Regional Office
and, on the same day, wrote to it that "the proposed consent election
and the conference ... will have to be deferred indefinitely because
this matter will have to be given further consideration by our New
York Office. . ." Stehli denied that Huber had consented to an
election since he had not been authorized to do so. Huber also denied
it, explaining that when he referred in his letter to "the proposed
consent election," he meant "the proposition of the election" that had
been made by agents of the Board. Sanville, a Field Examiner of
the Board, notified Yerger about Huber's letter.
The Regional Office wrote to the respondent on July 8, 1937,
notifying it of the petition for an investigation and certification of
representatives which had been filed by the Union. Huber sent the
letter to New York, but both Stehlis were away. Huber answered
the Board's letter on July 14, stating that the respondent could not
understand about the petition, since they were "convinced that no
dissatisfaction exists among our employees except such as is sought
to be generated by outside organizers." Both Yerger and Sanville
continued to communicate with Huber and to urge him to try to
prevail upon Stehli to consent to an election. They also urged the
desirability of having Stehli come to Lancaster to discuss the situa-
tion. Huber's answer on each occasion was that he had not yet heard
from New York, but would call again and let them know. At
Stehli's suggestion, Sanville came to Lancaster on July 21 and checked
the ,respondent's pay roll against the Union's membership cards.
When questioned by the respondent about the results of this check,
Sanville stated that it showed that the Union had a substantial
membership, sufficient to justify the respondent's consent to an elec-
tion. The respondent resented Sanville's failure to reveal the exact
results of his investigation. On July 28 Johnson, another Field Ex-
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aminer, wrote to the respondent requesting its consent to an election
since the check showed that the Union had an extensive membership
justifying the holding of an election. Stehli received this letter in
New York on Friday, July 30. After a telephone conference with
S. R. Zimmerman, counsel for the respondent, who was vacationing
in Massachusetts, Stehli sent to Huber on Monday, August 2, a
memorandum suggesting that Huber write to the Regional Office in
accordance with an enclosed draft of a letter, if he agreed with it,
as promptly as possible, and otherwise telephone him. The letter
stated that the respondent was agreeable to a discussion of an elec-
tion with agents of the Board, but not with the Union, because the
respondent felt that the Union did not represent a majority. Huber
received this memorandum and letter on August 3. On the same
day Sanville telephoned Huber from Yerger's office and again urged
him to try to prevail upon Stehli to agree to an election. Yerger
had received word that day that the T. W. O. C. was planning to
call a general strike on August 9, and had conveyed this informa-
tion to Sanville, who told Huber about it, adding that if the re-
spondent agreed to an election before August 5 it would be excluded
from the strike. When Huber telephoned the New York office and
told Stehli about this conversation, Stehli was very irate and, accord-
ing to his own testimony, told him "not to send that letter because
at the moment we are under threat of strike. When we have been
notified of that strike by a representative of the National Labor
Relations Board we, do not feel that we have to answer them so
promptly or so courteously, and that we would better wait to see
what happens before we do anything. And Mr. Huber acceded
heartily to that idea. So that letter was never sent."
On the morning of August 4, Sanville telephoned Stehli directly
and told him about the strike which was imminent and which the
respondent could avert by agreeing to an election. Stehli told him
that he would have to consult his attorney, and would give him an
answer that afternoon. When Sanville called again that afternoon
and asked if he had made up his mind, Stehli's answer was, as he
himself testified :
Yes, we have. We have made up our mind we feel you would
do us an enormous favor if you leave the situation alone. We
have been able to get along with our people 39 years in Lan-
caster, and why you have mixed up in it and got them all excited,
we don't understand. We wish you would go away and let us
alone. Secondly, under threat of a strike we will not consent
to an election and will not consent to anything until we have
had our little strike to see how our people feel. But won't you
please go away and please stay away?
STEHLI AND CO., INC., ET AL. 1421
Stehli further testified that when Sanville told him that "he was
only trying to be helpful, that he was only trying to avoid this
terrible thing called a strike, "Stehli simply repeated that he wished
Sanville would go away and stay away. Sanville also told Stehli
that charges of unfair labor practices 16 which the Union had filed
against the respondent would be withdrawn if the respondent would
consent to an election. Stehli told him that he absolutely would
not consent to an election, although he did agree that if the Board
ordered one, he would permit it to be conducted. Counsel for the
Board, summing up Stehli's testimony, asked "You have testified
that you did not want an election and that you did not want any
outsider, or labor organization coming in and you did not want the
Board to come in; and we fully understand that. Is that correct?"
Stehli answered "That is right." Sanville telephoned Yerger and
told him about these conversations. Stehli testified that after his
telephone conversations with Sanville he had no further participation
in this situation except to order a curtailment of the orders of yarn
until the respondent saw what happened on the following Monday,
August 9.
As a matter of fact, Stehli at this time preferred that the Union
should call a strike because he thought that a strike "would be a good
way to find out in a day or so how many people there were who
wanted to strike and how many wanted to join the C. I. 0." Stehli,
furthermore, did not at this time desire to avoid the strike since he
was "under the belief it would be a joke." Although he admitted
that the strike was far more extensive than he had expected, he
stated that, even looking at it in retrospect, he did not regret that he
had not sought to avoid the strike "because we would not have found
out that way what was really the situation." Moreover, Stehli and
several other textile manufacturers had decided, at a luncheon meet-
ing, that a strike would be the best means of determining "what
progress the T. W. 0. C. had made," and he felt that "if they were
all going to listen to the music and see what progress the T. W. 0. C.
had made, we would all sit down and see it together . . . There was
one particular case of an employer in New York who signed up on
Friday afternoon with the T. W. 0. C., and amongst us at the
luncheon table he has been very freely criticized for preferring to
run out and gain an advantage on us. That did not seem sportsman-
like or decent."
As was inevitable, the respondent's attitude toward the Union did
cause a strike. The Union and the shop committee met regularly on
16 The charges at this time alleged that the respondent had violated Section 8 (1), (2),
and (5 ) of the Act.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alternate Saturdays. At the union meeting on Saturday, July 31,
the sentiment of those present was strongly in favor of calling a
strike. There had been talk of a strike for some time past; in fact,
a strike had been expected for several weeks. At the union meeting
on July 31, the employees expressed many reasons for their deter-
mination to go on strike : the respondent's refusal to negotiate with
their representatives or to consent to an election ; dissatisfaction with
"wages, hours, working conditions and machine load"; the respond-
ent's formation of an inside organization; and the respondent's
general attitude of antagonism toward the Union. Their feeling
was summed up in the testimony of Thomas Sechrist, secretary-
treasurer of the Union, who said he had discussed the possibility of
a strike with people employed throughout the plant for a period of a
month or more prior to the strike to ascertain the general sentiment
in regard to a strike because "I thought we were going to have a
very difficult time with the company, that is, that they would use
every method they could use to break the organization, and that it
would be, as I would call it, a hard job to even to get them to recog-
nize an organization." Yerger was present at this meeting, and
argued against their going on strike because he doubted that a suffi-
cient number of employees would cease work to make the strike
effective. The shop committee was authorized at this meeting to act
on all matters arising between union meetings.
At the shop committee meeting on Saturday, August 7, a telegram
from the T. W. 0. C. announcing a general strike throughout the
textile industry, to be called on Monday, August 9, was discussed.
It was not necessary that the Union participate in this general strike,
nor was the decision of the shop committee to go on strike a result
of the telegram. The Union had decided to strike independently of
it, but thought its cause might be strengthened if it called a strike at
the same time as the general strike. The members of the shop com-
mittee voted against taking their problems to the Board because they
feared that any further delay in this matter would give the unaffili-
ated union which was being organized, and which they were con-
vinced was a company-dominated union, too great an opportunity to
obtain a strong foothold in the plant. The employees were notified
by word of mouth about the strike over the week end and on Monday
morning. The walk-out started at 10 a. in. on Monday, August 9.
The effectiveness of the strike far surpassed the expectations of the
respondent. Before the strike there were 1,081 employees on the
three shifts, whereas on August 9 there were only 707, on August 10,
432, and on August 11, 372. The effectiveness of the strike may be
further indicated in terms of looms. Before the strike the respond-
STEHLI AND CO., INC., ET AL. 1423
ent had 1,764 looms running on the three shifts, whereas it had 741
on August 9, 504 on August 10, and 462 on August 11. Stehli denied
that even this strike, which brought production almost to a standstill,
was a "labor dispute" since "We had no complaints from our em-
ployees. They just walked out."
At this point it is "necessary to determine whether or not the strike
was caused in whole or in substantial part by the respondent's unfair
labor practices. The facts set forth above show, and we find, that
the strike was caused at least in substantial part by the respondent's
unfair labor practices, namely, its policy of open hostility to the
Union as an "outside" organization and its contemptuous treatment
of the Union for that reason, even to the extent of preferring a strike
to cooperating with the Union to determine the majority question;
its policy of repression of union activity; and its domination of and
interference with the formation of an "inside" organization.17
(b) The refusal to bargain
The complaint alleges that the respondent refused to bargain with
the Union on June 28, 1937, and thereafter. We have found, how-
ever, in subsection 2 above, that the Union did not represent a
majority in the appropriate unit on June 28, and did not in fact
represent a majority until August 10.
On Tuesday, August 10, the second day of the strike, Sanville
called on Huber and told him that if the respondent would consent
to an election, the strike would be called off immediately. Huber
telephoned Stehli and informed him of Sanville's proposal. Stehli
told Huber to accept the proposal. Upon being informed of Stehli's
response, Sanville went to the picket line outside the plant and told
Yerger and a group of the strikers that Stehli had agreed to hold a
consent election if the strike was called off immediately. Yerger and
the group of strikers, however, were not content to give up the strike
on the basis simply of the respondent's agreement to the holding of
a consent election. They felt that they were winning the strike, since
the plant was practically closed down, and desired that before they
called off the strike, the respondent, in addition to consenting to an
election, should agree that if the Union won the election the re-
spondent would bargain with it in good faith and would enter into
a written agreement. Sanville went back to Huber and told him
that the Union was not content to give up the strike on the basis of
an agreement by the respondent to a consent election. It was
arranged that Sanville should return with a committee of the strikers
1^ See National Labor Relations Board v Remington . Rand, Inc., 94 F. (2d) 862, 872
(C. C. A. 2nd), certiorari denied, 304 U. S. 576.
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to discuss matters with Huber. This was done. The committee con-
sisted, in addition to Yerger, of five of the respondent's employees,
namely, Yarnall, Sheneman, Ira Kendig, Ada Pyle, and Charles
Ebersole. After the conference began, Yerger sent someone to his
office for copies of a model contract. This contract was in mime-
ographed form and contained various blank spaces to be filled in.
It contained a closed-shop provision, and a wage scale was appended
to it. Huber and Assistant Manager Stauffer, who was also present
at the conference, looked over the contract and stated that the re-
spondent would never agree to a closed-shop provision or to certain
other provisions. The union representatives assured Huber and
Stauffer that these provisions were all subject to negotiation. Since,
however, Huber was not authorized to negotiate the terms of an
agreement or even to discuss changes in the model contract pre-
sented by the union representatives, the union representatives re-
quested again, as they had requested several times previously, that
Stehli, or someone with authority to negotiate an agreement, come
to Lancaster to confer with them. Huber would not ask Stehli to
come to Lancaster. He did, however, finally consent to telephone
Stehli and inform him of the Union's proposal. Huber told Stehli
that a new proposal had been made-that the Union would call off
the strike if the respondent would agree to sign the contract which
had been presented to Huber, should the Union win a consent elec-
tion. Huber further gave Stehli to understand that this proposal
had been made by Sanville, and not by the respondent's own em-
ployees. This information thus imparted to Stehli by Huber was
erroneous in two respects, namely : (1) the proposal had not been
presented by Sanville, but by a committee of the respondent's strik-
ing employees, and (2) the proposal was not that the respondent
agree to sign the model contract, without negotiation concerning its
provisions, but that the respondent agree to bargain in good faith
and negotiate an agreement on the basis of the model contract which
had been presented, if the Union won a consent election. Although
Huber and Stauffer testified that the union representatives demanded
that the respondent agree to sign the model contract if the Union
won the consent election, we find persuasive the testimony of the
union representatives, that they requested the respondent only to
agree to bargain in good faith and to negotiate an agreement if the
Union won a consent election. The respondent is responsible for the
fact that the union committee's proposal was erroneously conveyed
to Stehli by Huber.
As a result of this misinformation, Stehli, who learned for the first
time at the hearing that the proposal had in fact been made by a
STEHLI AND CO., INC., ET AL. 1425
committee of the respondent's employees and not by an "outsider",17a
rejected the proposal in the strongest terms. He testified that:
I must admit I got very cross with Mr. Huber for even sug-
gesting such a thing and said that was the most unfair and
despicable thing I ever heard of, and I wouldn't hear to anything
like that, and they could just plumb go straight to the devil. And
I said it a little stronger than that . . . I said, "Please deliver
that message to Mr. Sanville."
Huber conveyed Stehli's reply to the union representatives, and the
conference ended with a statement by Yarnall that "the strike is still
on." A copy of the model contract was left with Huber to be mailed
to Stehli.
The respondent contends that it did not refuse to bargain with the
Union on August 10, and thereafter, because the Union did not prove
to the respondent that it represented a majority of the employees.
On August 10, however, more than 600 employees, a clear majority,
were out on strike, and on August 11, more than 700 were out on strike.
Thus the respondent was on notice that the situation had changed since
July 21, when Sanville had checked the union membership cards
against the respondent's piy roll. Certainly the fact that a clear ma-
jority of the employees were on strike, particularly when a strike was
the method of testing the Union's strength and representation pre-
ferred by the respondent, indicated to the respondent a strong likeli-
hood that on August 10, and thereafter, the Union represented a ma-
jority of the employees, even if it had not represented a majority on
July 21. Indeed, Stehli admitted that the strength of the Union as
shown by the strike far surpassed his expectations. And, as we have
found above, on August 10 and thereafter the Union actually repre-
sented a majority of the employees in the appropriate unit. We are
of the opinion that when a union has called a strike, as a result of
which more than a majority of the employees stay away from work,
and, at a time when it has actually been designated bargaining repre-
sentative by a majority of the employees in the appropriate unit,
174 Stehli 's testimony in this connection was as follows •
A. They did not want to discuss anything on August 10th. They plumped that
contract down and said , " If we win the election you sign that contract," and we
said, "Nothing doing."
Q. And that is the testimony you gave?
A. That is the information Mr. Huber gave to me on the afternoon of August
10th.
Q. You have sat here and heard witnesses testify to other things said there.
One of the other things was that they asked to please have Mr. Stehli come here
and sit down and discuss this contract with them . Is that a fact?
A. I don't know how that message came to me, but it was never told to me that
people other than Mr. Sanville were in the office on the afternoon of August 10th.
That I did not know.
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requests the employer to bargain with it, the employer is under a duty
to do so, and cannot be relieved of his duty to bargain forthwith be-
cause he may have doubts concerning the Union's majority represen-
tation, unless he requests proof of the Union's majority and proposes
a reasonable method for its ascertainment. The respondent did not
fulfill its obligations. Its willingness on August 10 to consent to an
election was conditional on the immediate termination of the strike.
This required the Union to give up the strike in return for the re-
spondent's cooperation in determining the Union's representation, and
could be rejected by the Union as unreasonable since it was entitled
to the respondent's cooperation without giving up the strike. The
proposal that the strike be called off upon the respondent's consent to
an election was not made by the Union, but by Sanville, a third party
interested in settling the strike and the matters in dispute. Thus when
the Union rejected the proposal, it was the respondent's duty to bar-
gain with the Union, or, if it had any doubts concerning the Union's
majority representation, to propose a reasonable method, not condi-
tioned on the Union giving up the strike, of proving such majority.
The respondent did neither. Instead, two officials of the respondent,
without authority to bargain or negotiate for the respondent, discussed
the union committe's proposal that the respondent agree to bargain
in good faith and negotiate an agreement if the Union won a consent
election, then seriously misinformed Stehli of the proposal, which was
followed by an irate rejection of the proposal by Stehli, who had
refused to come to Lancaster himself or to authorize anyone else to
act for the respondent. We find that on August 10, the respondent
refused to bargain collectively with the Union as the representative
of the respondent's employees.
We also base our finding on a ground independent of the one set
forth above.. The proposal of the union committee contemplated a
reasonable method of determining the Union's majority and attached
no unreasonable conditions. The Union agreed to call off the strike
and merely asked that the respondent agree to do what it was required
by law to do, namely, cooperate with the Union in determining the
Union's representation and bargain in good faith to reach an agree-
ment if a majority representation by the Union was proven. The
union committee's request that the respondent agree to bargain with
it in good faith if it proved its majority was not an idle request,
even though this duty was imposed upon the respondent by law,
in view of the respondent's unfair labor practices preceding August
10, and the unwillingness of Stehli to come to Lancaster himself to
deal with the Union or to invest Huber or anyone in Lancaster with
authority to deal with the Union. The respondent is responsible for
the fact that the union committee's proposal was erroneously con-
STEHLI AND Co., INC., ET AL. 1427
veyed to Stehli by Huber, and Stehli's irate rejection of the pro-
posal, as conveyed to him by Huber, was- a rejection of the Union's
proposal, which provided a reasonable method of determining the
majority. This refusal to cooperate in establishing the Union's right
to represent its employees in the appropriate unit constituted a re-
fusal to bargain with the Union as the designated representative
of the respondent's employees.
Independently of the grounds stated above, we are convinced that
the respondent's refusal to bargain with the Union on August 10 was
not motivated by any doubts concerning the Union's majority repre-
sentation but by its long-established policy of opposition to "out-
siders", and therefore to the Union, and by a determination not to
recognize or deal with the Union. We have found above that the
dominant characteristic of the respondent's labor policy for the past
39 years has been aggressive hostility toward outside unions, that at
the very outset of the negotiations with the Union the respondent
made manifest to the Union its hostility to it as an "outsider." The
subsequent course of its dealings with the Union reflects that policy.
There can be no doubt from Stehli's testimony that the angry lan-
guage in which he couched his rejection of the union committee's
proposal on August 10, as conveyed to him by Huber, was due in
substantial part to the fact that he thought the proposal had been
made by an "outsider" and not by his own employees. During the
course of the 3 days following August 10, as set forth below, this
policy of opposition toward the Union was openly announced and
openly used to coerce the employees into repudiating the strike, and
on August 12 and 13 the respondent, in newspaper advertisements
to its employees, set forth below, frankly stated that it deemed it
"unfair to deal with outside groups" and that "it must resist" the
T. W. O. C. "in fairness" to its employees and to itself. No other
conclusion can be drawn from the respondent's course of conduct than
that from the outset it had determined to resist and destroy the Union
and that in the execution of this policy it utilized such dilatory tactics
and technicalities as it found available. We are convinced that the
respondent's conduct on August 10 was in no way motivated by any
doubts as to the Union's majority representation, but was part and
parcel of a deliberate policy and plan based on the rejection of the
principle of collective bargaining. For this reason we find that on
August 10, 1937, the respondent refused to bargain with the Union
as the representative of the respondent's employees in the appro-
priate unit.
On Wednesday, August 11, the third day of the strike, Lerbscher,
a superintendent, during his regular telephone conversation with the
respondent's New York office about shipments, discussed the strike
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Robert Frick, head of the respondent's manufacturing depart-
ment, and explained to him that he had been told by Huber that the
Union had the day before presented a proposed contract containing
a closed-shop provision and a request for a 20-per cent increase in
wages. Frick told Lerbscher that Stehli would not agree to the first
of these provisions and could not grant the second, and gave him
permission to convey this message to the employees when he paid
them off the following day, Thursday, the regular pay day. Follow-
ing this conversation, Lerbscher and Huber, with Stehli's approval,
called together the foremen and loom fixers on the first shift, most
of whom came to work during the strike. They were told to go out
and contact the weavers and request them to return to work, one
of the inducements for returning to work being that they could have
the same looms if they returned that week, but thereafter the looms
would be given to those who applied first. Huber also told them
that Mr. Stehli would never sign a contract containing a closed-shop
provision. Stehli testified that when he had heard that the Union
was asking for a 20-per cent increase in wages, he had "announced
in no mean terms so that the people could hear it that if a raise
of 20-per cent went through the mill . . . it would be impossible
to pay it." He had notified Huber and some of the other officials at
the plant, both before and after the strike, that if the respondent
had to grant a 20-per cent, or even a 10-per cent, increase, it could
then buy the goods more cheaply than it could weave them in its
own mills. Huber repeated these statements to the foremen and loom
fixers. He also pointed out that during the strike the respondent
had to send some of its work to other mills in order to fulfill its con-
tracts, so that, while its weavers were losing wages, employees in
plants not closed down by the strike would have that work. One
of the loom fixers who was present testified that Huber "said they
cannot move the plant south but he said they can get the work that
is in the looms woven by another concern." Lerbscher told them
"that if the C. I. O. would win, no doubt Mr. Stehli would just be a
converter instead of a manufacturer and buy the goods wherever he
could get them the cheapest, and no doubt this would be from mills
running in the South." When Beazley came in on the second shift,
the foremen and loom fixers on that shift were called together for
the same purpose. Although the foremen and-loom fixers were told
to solicit the employees who were at home, they were not specifically
told not to solicit those on the picket line. As a matter of fact, they
solicited all the employees who were not at work, regardless of
whether they were at home or on the picket line. Although they
were not instructed to repeat to the employees what they had been
STEHLI AND Co., INC., ET AL. 1429'
told by the management, they did repeat it. Furthermore, there is
ample evidence that the foremen and loom fixers, in their endeavors
to carry out the respondent's bidding, told some of the employees
that the respondent would never sign any contract with a C. I. O.
union, and that, rather than recognize a C. I. O. union even if it
obtained a majority, the respondent would move the plant south.
Huber admitted that he knew some of the employees were reporting that
the mill would be closed, the plant moved south, and that the respond-
ent would never sign with a C. I. O. union, but he apparently did
not see fit to issue a denial of these statements, although they were
made by men authorized to act on behalf of the respondent.
When Lerbscher paid the men on Thursday, he had them come in
individually so he could talk to them and tell them that their looms
would be held open for them only the rest of the week, and then
would be given to whoever applied first.
On Thursday, August 12, the respondent issued the following
statement which was published in one of the local newspapers :
The Stehli plant will be kept open for all employees who de-
sire to work., The company pledges itself to do everything within
its power to safeguard those who desire to go about their usual
daily labor.
The company is ready and willing to sit down with representa-
tives of its employes and talk over any difference of opinion
which may exist. This is not new. It has been the policy of the
company for 39 years and will remain so.
The Stehli company feels that it is unfair to deal with outside
groups. It feels that in adopting this policy it is wholly within
the letter and spirit of the Wagner Act.
There was no unrest, no dissatisfaction among employees prior
to the time CIO came in and instituted the present strike. There
have been no demands, no complaints from any of our own
employes.
The company agreed with a representative of the National
Labor Board that an election should be held among the employes
to determine which group should represent the workers. Half
an hour later the CIO opposed the election unless the company
was willing to sign an agreement which automatically was to
become effective after the election.
The company refused to sign such an agreement. Had it done
so there would have been nothing to negotiate, no basis for collec-
tive bargaining. [Italics supplied.]
Huber assisted in the preparation of this statement and stated that
"it was perfectly presenting our feelings at _that time."
164275-39-vol. xi-91
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the following day the respondent inserted a full-page advertise-
ment in the two local newspapers. The advertisement was to the same
general effect as the above statement, but contained the following
introduction :
A STATEMENT
To the Public and to All of Our Employes
At the present time the Stehli & Co., Inc., Silk Mill at Rossmere
has curtailed production because of a strike among some of its
employees, instigated and called at the instance of representatives
of the Textile Workers Organizing Committee, associated with
C. I. O. Because of that situation we are prompted to make this
statement to the community of which we are a part.
and the following concluding paragraph :
... In fairness to the great body of its employees and to itself
it must resist influences which it believes to be opposed to the last-
ing welfare of either. In support of this policy it will continue
to keep its plant open for all employees who desire to work. This
is not new. It is a policy that has endured for 39 years and is
unchanged now. [Italics supplied.]
Stehli, who testified that he was personally responsible for the adver-
tisement, stated that the "influences" mentioned in the newspaper
advertisement as threatening the welfare of the respondent and its
employees referred to the T. W. O. C., as indicated by the first para-
graph of the advertisement. He stated further that the respondent's
policy in regard to "outside groups" is exemplified by the statement
and advertisement. Stehli explained that the respondent announced
in the statement and advertisement that no demands or complaints
had been made by its employees because he thought that the proposed
contract was presented on August 10 by "outsiders." Even when in-
formed during the hearing that the proposed contract had been pre-
sented by a committee of his employees, Stehli said it "was certainly
a very phony demand, if I ever saw one." The statement and adver-
tisement necessarily had the effect of discouraging membership in the
Union and, by indicating the respondent's preference for an inside
union, of encouraging the organization of the Independent.
Sanville, Yerger, and Yarnall continued their efforts during the
strike to obtain the respondent's consent to an election and an agree-
ment of some sort that would also be agreeable to the strikers. They
encountered the same barrier, however, of having to deal through
intermediaries lacking authority and over the long-distance telephone.
They requested a number of times that Stehli come to Lancaster and
STEHLI AND Co., INC., ET AL. 1431
discuss this matter with them, feeling that if any agreement were
reached, it would then be effective. Stehli, however, chose to ignore
these requests.
Sanville wired Stehli on August 17 that if he would reinstate the
strikers without discrimination, the Union would consent to an elec-
tion. A great many of the strikers had by this time been induced by
the respondent to return to work, although the Union had not issued
any formal order that the strike was ended. There was no reply to
this telegram.
On or about August 20, Sanville called on Zimmerman, counsel for
the respondent, to discuss the situation. Zimmerman testified that
he told Sanville at that time that "the strike was over and the em-
ployees were back at work and there was no longer any trouble out
at the plant. And . . . there wasn't any occasion to do anything
further at the moment, as I saw it, but just let matters take their
course." ,
On about September 8, a volunteer committee of union members
went to see Huber to request that all the striking employees be rein-
stated to the positions they held before the strike. The respondent,
however, thought that the employees who returned first during the
strike and were given jobs on the first and second shifts were entitled
to retain them, in preference to the striking employees who returned
later to ask for their jobs, even though, in some cases, they had worked
on the first and second shifts for many years before the strike.
On October 7, Davis, an attorney for the Board, wrote to the re-
spondent advising it of the complaint, based on charges filed by the
Union, which the Board was about to issue" against the respondent,
and requesting a conference in regard thereto. After further cor-
respondence and telephone conversations, in the course of which
Davis urged Stehli's attendance, it was arranged that a conference
should be held on October 22 at the Board's Regional Office in
Philadelphia. Stehli did not attend. Zimmerman and Huber rep-
resented the respondent. After considerable discussion, during which
it became obvious that no agreement was going to be reached, one
of the union representatives finally suggested that the respondent
at least recognize the Union as the representative of its own mem-
bers, but Zimmerman refused to agree to this. Zimmerman suggested
an election, but the representatives of the Union refused to consent
to it at this time. The conference ended thus.
On October 29, Yerger sent by registered mail to Stehli, Huber,
and Zimmerman, a letter offering to prove that the Union repre-
sented a majority of the employees and requesting a conference and
negotiations to avoid a public hearing on the complaint. Yerger
received no reply.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
An examination of the documentary evidence and the many hun-
dreds of pages of testimony reveals the following facts :
1. That the strike beginning on August 9, 1937, was caused at
least in substantial part by the respondent's unfair labor practices.
2. That on August 10, 1937, the respondent refused to recognize or
bargain collectively with the Union.
3. That the above refusal to bargain collectively was a primary
factor in the prolongation of the strike.
4. That throughout the negotiations which took place after August
10, 1937, the respondent adhered to its long-established policy of not
bargaining with an "outside" union, and steadfastly refused to bar-
gain collectively with the Union. That such refusal to bargain
collectively was a continuing factor in the prolongation of the strike.
5. That the respondent refused to bargain collectively with the
Union in good faith. This is clearly disclosed by the respondent's
dilatory tactics, by its policy of opposition to an outside union, by
its failure to place in charge of the negotiations at Lancaster a
person with authority to negotiate, by its readiness to destroy col-
lective bargaining by going over the heads of the union representa-
tives and dealing directly with employees individually, and by
dominating and fostering the formation of an inside organization
prior to, during, and after the period in which the Union sought to
bargain collectively with the respondent.
6. That the respondent, by making manifest to its employees its
hostility to the Union by threatening to close the plant and move
south if the Union succeeded in securing recognition, by urging its
employees to join an inside union, by discrediting the Union and
its leaders by derogatory statements addressed to its employees, by
soliciting employees individually to return to work, accompanied by
threats, warnings, and a promise of the most preferable positions to
those who repudiated the strike first, has pursued a course of coercion,
intimidation, and interference for the purpose of interfering with
the rights of its employees to bargain collectively through representa-
tives of their own choosing and to engage in other concerted activities.
We find, therefore, that on August 10, 1937, and thereafter, the
respondent has refused to bargain collectively with the Union as
the representative of its employees in respect to wages, rates of pay,
hours of employment, and other conditions of employment.
We further find that the respondent, by the acts and conduct set
forth in the two preceding paragraphs, has interfered with, re-
strained, and coerced its employees in the exercise of their rights
to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing,
STEHLI AND CO., INC., ET AL. 1433
and to engage in concerted activities for the purposes of collective
bargaining and other mutual aid and protection as guaranteed in
Section 7 of the Act.
D. Ending of the strike; discriminatory reinstatement of some
strikers and refusal to reinstate others
The complaint alleges that the respondent discriminated against
32 named employees in regard to hire and tenure of employment, and
thereby discouraged membership in the Union. During the hearing
the complaint was amended by dismissing the allegations of dis-
crimination against 10 named employees,'8 and by adding allega-
tions of discrimination against George D. Booth. The Trial Ex-
aminer, in his Intermediate Report, recommended that the respond-
ent offer to reinstate in their former positions, and make whole for
any loss of pay they may have suffered by reason of the respondent's
discriminatory action, 15 named employees,19 and further recom-
mended that the allegations of the complaint as to discrimination
against 8 named employees 20 be dismissed. The Union filed excep-
tions to the Trial Examiner's findings and recommendations as to
5 of these 8 employees, but did not file exceptions as to the other 3,
namely Robert Hertz, Charles L. Sload, and Paul Yarnall. We
concur with the Trial Examiner's recommendations as to Hertz and
Sload, and, although we have some doubt respecting his recom-
mendation as to Yarnall, we will, in view of the failure of the
Union to file exceptions as to these three persons dismiss these allega-
tions of the complaint without detailed discussion.
Thus there remain 20 persons against whom the respondent is
alleged to have discriminated in regard to hire and tenure of
employment.
1. Discrimination against 17 striking employees
The 17 employees listed in the footnote below 21 went out on the
August 9, 1937, strike, which we have found above was caused and
18 The names of these employees are : Hawthorne Caulwell , Charles P. Mellinger, Elva
T Farmer, William Schroeder , L. Eugene Bretz , Del Dona Kellenberger, Alice Shomo,
Hazel Dagen, Myrtle L. Weidman and Evelyn B Wirrick
19 The names of these employees are : Walter Zurcher, Earl Weinhold, Harold McKonly,
Leroy E. Emmerich, Clarence Harman, Harold Rankin, George H. Carpenter, John Gibbs,
Eugene Skiles, Alonzo W. Sheneman, William Landis, John L. McLane, John Caulwell,
Lewis E. Frank, and C. Ellsworth Jones.
20 The names of these employees are : Robert H Hertz, Catherine W. Harmes, Charles
L. Sload, William C. Overly, Paul Yarnall, George F. Hurter, Paul V. Schreck, and George
D. Booth.
n Walter Zurcber, Earl Weinhold, John Caulwell, John Gibbs, C. Ellsworth Jones,
Harold Rankin, William Landis, John McLane, George Carpenter, Lewis E. Frank, Eugene
Skiles , Harold McKonly , Leroy Emmerich , Alonzo W. Sheneman , Clarence Harman,
Catherine W. Harmes, and George F. Hurter.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prolonged by the respondent's unfair labor practices. During the
strike the respondent sought to induce the striking employees to
repudiate the strike and return to work by announcing that it would
not deal with an outside organization and by offering the most
desirable positions to those striking employees who repudiated the
strike first. The most desirable positions are on the first shift, which
is a day shift; the next best positions are on the second shift, which
begins in the afternoon and ends in the evening; the least desirable
positions are on the third shift, which begins in the late evening
and continues through the early morning hours. The positions on
the first shift are also most desirable because when the working
force is reduced, the workers on the first shift are laid off last, while
the workers on the third shift are laid off first. This, of course,
means that the workers on the first shift are likely to earn more
money over a period of time, even though the rates of pay on all
three shifts are the same. Moreover, a considerable amount of pre-
paratory work is performed on the first shift which is not per-
formed on the second and third shifts, and a number of operations
requiring for their performance persons with special skills are per-
formed only on the first shift. Men are not transferred from one
shift to another unless, Huber explained, "there is some special
reason." Vacancies on each shift are generally filled by hiring new
employees.
The respondent claims that the strike, which began on August 9,
1937, was broken by August 13, 1937, since after that date the re-
spondent did not send its foremen and loom fixers to solicit strikers
to repudiate the strike by offering the most desirable positions to
those who returned to work first, because as Superintendent
Lerbscher testified, "we had everybody back we wanted to come
back." The Union admits that the strike had petered out by August
18, 1937. Thus when the 17 striking employees involved here ap-
plied for reinstatement to their former positions on August 18, 19,
and 20, 1937, they were denied reinstatement to their former posi-
tions because those positions were occupied by strikers who had
repudiated the strike and returned to work in response to the re-
spondent's offer of the best positions to those who repudiated the
strike, first, and possibly by persons who had not been in the re-
spondent's employ at the commencement of the strike.
The respondent admitted that it placed in positions on the first shift
persons who had been employed on the second and third shifts at the
commencement of the strike. At the time of the hearing about 25
weavers who had been employed on the second and third shifts at the
commencement of the strike were occupying positions on the first
STEHLI AND CO., INC., ET AL. 1435
shift. The record does not disclose the number of persons hired by the
respondent during and after the strike who had not been in the re-
spondent's employ at the commencement of the strike, or the positions
they occupied.
As mentioned above, the'17 employees involved here applied for rein-
statement to their former positions on August 18, 19, and 20, 1937, and
were denied such reinstatement because their positions were occupied
by employees who had returned to work at an earlier date in response
to the respondent's offer of the best positions to those who repudiated
the strike first, and possibly by persons who had not been in the
respondent's employ at the commencement of the strike. Fourteen 22
of these 17 employees occupied positions on the first shift at the com-
mencement of the strike. Of the 14 who were denied reinstatement
to their positions on the first shift, 1 23 was unwilling to accept a posi-
tion on another shift, 4 24 subsequently accepted positions on the second
shift, 8 25 subsequently accepted positions on the third shift, and 128
was reinstated to a position on the first shift about 2 months later.
Two 27 of the 17 employees occupied positions on the second shift at
the commencement of the strike. Of these two employees, one 28 was
unwilling to accept any other than his former position, and the other 29
subsequently accepted a position on the third shift. The remaining
130 of the 17 employees occupied a position on the third shift at the
commencement of the strike. He was reinstated to a position on the
third shift, but on different looms.
There was a curtailment of production at the Rossmere plant around
October and November 1937 because of a drop in business, and also
because the respondent had arranged during the strike to send certain
qualities of yarn to other mills to be woven. The respondent continued
to send these yarns out 2 or 3 months after the strike because it claimed
that the Rossmere plant was at that time too busy to weave these yarns,
and it was not feasible to wait until the plant could handle them. The
result was that some of the weavers who had been on the first or second
shift at the commencement of the strike, but were reinstated to the
third shift after the strike because they had not, at the respondent's
request, repudiated the strike, were laid off in October and November.
22 Walter Zurcher , John Caulwell , John Gibbs , Harold Rankin , William Landis, John
McLane , George Carpenter , Lewis E Frank , Eugene Skiles , Hai old McKonly, Leroy
Emmerich , Alonzo W. Sheneman , Clarence Harman, and Catherine W Harmes.
21 Walter Zurcher.
24 John Caulwell , William Landis , John McLane , and Lewis E Frank
2S John Gibbs , Harold Rankin , George Carpenter , Eugene Skiles , Harold McKonly, Leroy
Emmerich , Alonzo W Sheneman , and Clarence Ilaiman.
26 Catherine W. Harmes
2' Earl Weinhold and C. Ellsworth Jones.
28 Earl Weinbold.
-" C Ellsworth Jones.
20 George F. Hurter.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent, as found above, refused to reinstate these 17 em-
ployees on August 18, 19, and 20, 1937, to their former positions after
application for reinstatement had been made. The strike having been
caused and prolonged by the unfair labor practices of the respondent,
the ordinary right which the respondent had to select its employees
was "vulnerable," and its refusal to reinstate these 17 employees to
their former positions was subject to such order as the Board, in
effectuating the purposes and policies of the Act, might make, direct-
ing the respondent to reinstate said employees ; to dismiss persons hired
since, and not in its employ at, the commencement of the strike, and
to displace and shift to other positions persons occupying the positions
formerly held by these 17 employees and to redistribute its other em-
ployees on a non-discriminatory basis, to such extent as necessary, for
the purpose of making positions available for such reinstatement, and
to compensate these 17 employees for any loss of wages sustained by
virtue of the refusal.31 In our Order below, we will, after taking into
account facts peculiar to each of these 17 employees'32 make provision
to remedy the situation brought about by the unfair labor practices
which caused and prolonged the strike.
Moreover, the record convinces us that the respondent would have
been able, by displacing or shifting to other positions the persons
occupying the positions held by these 17 employees at the com-
mencement of the strike, to have restored all these 17 employees to
their former positions at the time of, or shortly after, their appli-
cation for reinstatement. This the respondent refused to do. Aside
from the respondent's intention to discriminate against these 17 em-
ployees because they did not repudiate the strike, considered below,
there is nothing in the record to show that the respondent's refusal
of such reinstatement was based on grounds other than the desire
not to shift to other positions the persons then occupying the posi-
tions held by these 17 employees at the commencement of the strike.
Under Section 2 (3) of the Act, these 17 employees remained em-
ployees for the purposes of the Act. And we have frequently held
that where, as here, a strike has been caused or prolonged in whole
or in substantial part by the employer's unfair labor practices, the
striking employees are entitled to their former positions upon mak-
si Matter of Black Diamond Steamship Corporation and Marine Engineers ' Beneficial
Association, Local No. 83, 3 N. L. R. B. 84; order enforced in Black Diamond Steamship
Corporation v. National Labor Relations Board, 94 F ( 2d) 875 (C C. A. 2d), certiorari
denied, 58 S. Ct. 1044; National Labor Relations Board v. Remington Rand, Inc, 94 F
(2d), 862 ( C. C. A. 5th ), certiorari denied, 58 S Ct. 1046 , 1061; Matter of McKaig-
Hatch, Inc . and Amalgamated Association of Iron, Steel, and Tin Workers of North
America, Local No. 1139, 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
"See page 11,53 et seq, infra
STEHLI AND CO., INC., ET AL. 1437
ing application therefor. 33 The refusal of the respondent in this
case to reinstate these 17 employees to the positions to which they
were entitled, by displacing or shifting to other positions the persons
occupying the positions to which these 17 employees were entitled,
at the time of application for reinstatement, in effect and result dis-
criminated, and constituted a discrimination, concerning hire and
tenure of employment against these 17 employees. Such discrimina-
tion discourages union membership. We find that by the foregoing
refusal to reinstate these 17 employees the respondent has engaged
in unfair labor practices within the meaning of Section 8 (3) of
the Act, and has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act 34
Independently of the foregoing, we find from the record that the
actual reason for the respondent's refusal to reinstate these 17 em-
ployees to their former positions lay in its desire to punish them for
not repudiating the strike and to reward the employees who re-
pudiated the strike in response to the respondent's offer of the best
positions to employees who repudiated the strike first, thereby dis-
couraging membership in the Union which was conducting the strike.
The respondent contends that during the strike it offered reemploy-
ment to all striking employees and that those who did not return
to work while their former positions were still unoccupied are not.
entitled to their former positions. As we have heretofore held, an
employee may refuse an employer's offer of reemployment during
the pendency of a strike resulting from the employer's unfair labor
practices without impairing such employee's right to subsequent re-
instatement. Moreover, the respondent's offer of reemployment was
by its terms discriminatory, since it predicated the reinstatement of
the striking employees to their former positions on priority in re-
pudiating the strike.
In view of the foregoing facts and upon the record as a whole,
we find that these 17 employees were denied reinstatement to their
former positions on August 18, 19, and 20, 1937, because they did not
cease striking as early as the respondent desired them to do so, and
that this constituted discrimination in regard to their hire and tenure
s' Matter of Jeffery-DeWitt Insulator Company and Local No. 455, United Brick and
Clay Workers of America, 1 N L. R. B. 618; order enforced in Jeffery-DeWitt Insulator
Company v . National Labor Relations Board, 91 F . ( 2d) 134, certiorari denied, 302
U. S. 731; National Labor Relations Board V Remington Rand, Inc, 94 F. (2d) 8Q2,
certiorari denied May 23, 1938, 58 S. Ct. 1046
'Matter of Black Diamond Steamship Corporation, footnote 31, supra; Black Diamond
Steamship Corporation v. National Labor Relations Board, footnote 31, supra; Matter
of Mc%aig-Hatch, Inc, footnote 31, supra; Matter, of Western Felt Works, footnote 31,
supra; Matter of Douglas Aircraft Company, Inc. and United Automobile Workers of
America, International Union, Douglas Local No. 214, 10 N . L. R. B 242; Matter of Denver
Automobile Dealers Association, et al . and Capital Automotive Lodge No. 606, International
Association of Machinists, 10 N. L. R. B. 1173.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employment, thereby discouraging membership in the Union.
The respondent has therefore engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act, and
has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
We shall now set forth facts concerning each of these 17 employees,
including facts occurring after they were denied reinstatement, and
point out what relevance, if any, such facts have upon the remedy.
Walter Zurcher had been in the respondent's employ for about 10
years. Prior to and at the commencement of the strike Zurcher
worked as a weaver on the first shift. The respondent acknowledges
that he was one of the best of its weavers. He applied for reinstate-
ment to his former position on August 19, 1937, and was denied such
reinstatement by the respondent because the positions on the first
shift were already occupied. The respondent claims that it offered
him a position on another shift and that he refused to accept such a
position. An employee who ceases work as a consequence of unfair
labor practices may refuse an offer of employment which is not
substantially equivalent without impairing his right to subsequent
reinstatement. Zurcher obtained employment elsewhere and was
working at the time of the hearing. He earns less money at this
employment and is required to work on alternating shifts. He desires
to be reinstated to his former position with the respondent. We will
order the respondent to reinstate Zurcher, with back pay, as provided
below in the section entitled "Remedy."
Earl Weinhold had been in the respondent's employ for about 10
years. Prior to and at the commencement of the strike Weinhold oc-
cupied the position of weaver on the second shift. On August 19,1937,
he applied for reinstatement to his former position and was denied
such reinstatement because his former position was occupied by an
employee who had been working on the third shift at the commence-
ment of the strike. Weinhold testified that Superintendent Beazley
told him there was nothing available in his department, and that
he would send for him when there was. Beazley, on the other hand,
testified that he offered Weinhold a position on the same shift, but
on looms of a different type, and that Weinhold refused to return
to work unless he was assigned to the same type of looms he had
operated at the commencement of, the strike. Beazley further stated
that production in the department in which Weinhold had been
employed had been so drastically curtailed that there has been no
occasion to send for him.
Weavers who are accustomed to one type of looms are usually
very reluctant to transfer to a different type of looms, even though
the latter type might be generally considered preferable because of
STEHLI AND Co., INC., ET AL. 1439
new improvements or some other reason. The record shows that the
transfer of weavers to looms of a different type frequently resulted in
a decrease in earnings. Even if we accept Beazley's statement that
he offered Weinhold work on different looms, in the absence of any-
thing in the record to the contrary, it is a reasonable inference that
the position offered Weinhold was not substantially equivalent to
his former position. It appears, moreover, that even though produc-
tion in his department had been greatly curtailed, his looms were
available, and were being operated by a weaver who had formerly
been employed on the third shift. For the reasons stated above in
connection with Zurcher, Weinhold did not impair his right to sub-
sequent reinstatement even if he refused to accept the position which
the respondent claims it offered him, since it was not substantially
equivalent to his former position.
Weinhold was not employed at the time of the hearing. During
the period from August 19, 1937, when he was denied reinstatement,
to the date of the hearing, he had earned about $55. He desires to
be reinstated. We will order the respondent to reinstate Weinhold,
with back pay, in the manner provided below in the section entitled
"Remedy."
John Caulwell began working for the respondent in 1905. Prior
to and at the commencement of the strike he occupied the position of
weaver on the first shift. On August 19, 1937, he applied for rein-
statement to his former position and was denied such reinstatement.
At that time his former position was occupied by another person. On
August 26, 1937, he accepted a position on the second shift, where he
earned less money because he was required to operate looms of a
different type and because of different working hours. At the time
of the hearing he was still working on the second shift. He desires
to be reinstated to his former position on the first shift. We will
order the respondent to reinstate Caulwell, with back pay, in the
manner provided below in the section entitled "Remedy."
John Gibbs had been in the respondent's employ for about 12 years.
Prior to and at the commencement of the strike he occupied the posi-
tion of weaver on the first shift. On August 19, 1937, he applied
for reinstatement to his former position and was denied such rein-
statement. His former position was occupied by another person at
that time. He was offered a position on the second shift but did not
accept it. On August 24, 1937, he accepted a position on the third
shift, operating the same looms which he had operated on the first
shift. At the time of the hearing he was still employed in the same
position.
During the period from August -19 to August 24 he earned about
$10. He desires to be reinstated to his former position on the first
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shift. We will order the respondent to reinstate him, with back
pay, in the manner provided below in the section entitled "Remedy."
C. Ellsworth Jones had been in the respondent's employ on and
off for a period of about 10 years. Prior to and at the commence-
ment of the strike he occupied the position of weaver on the second
shift. On August 19, 1937, he applied for reinstatement to his former
position and was denied such reinstatement by, the respondent. At
that time his former position was occupied by another person. On
September 8, 1937, he accepted a position as a weaver on the third
shift. At the time of the hearing he still occupied this position. He
desires to be reinstated to his former position on the second shift.
We will order the respondent to reinstate him, with back pay, in
the manner provided below in the section entitled "Remedy."
Harold Rankin was a weaver on the first shift prior to and at the
commencement of the strike. On August 18, 1937, he applied for
reinstatement to his former position and was denied such reinstate-
ment by the respondent. At that time his former position was occu-
pied by another person. On September 8, 1937, he accepted a posi-
tion as a weaver on the third shift. At the time of the hearing he
still occupied this position. He desires to be reinstated to his former
position on the first shift. We will order the respondent to reinstate
him, with back pay, in the manner provided below in the section
entitled "Remedy."
William Landis had been in the respondent's employ on and off
for about 22 years, and had worked continuously for about 17 years.
Prior to and at the commencement of the strike he occupied the posi-
tion of weaver on the first shift. On August 19, 1937, he applied for
reinstatement to his former position and was denied such reinstate-
ment by the respondent. At that time his former position was oc
cupied by a person who had worked on the second shift at the com-
mencement of the strike. On August 25, 1937, he accepted a position
as a weaver on the second shift. It appears that on October 30, 1937,
he was placed on the "short" shift, working 3 days a week. We will
order the respondent to reinstate him, with back pay, in the manner
provided below in the section entitled "Remedy."
John McLane began working for the respondent in 1905. Prior
to and at the commencement of the strike he occupied the position
of weaver on the first shift. On August 19, 1937, he applied for re-
instatement to his former position on the first shift and was denied
such reinstatement. At that time his former position was occupied
by another person. On September 3, 1937, he accepted a position as
a weaver on the second shift. It appears that on October 30, he was
placed on the "short" shift, working about 3 days a week. He desires
to be reinstated to his former position on the first shift. We will
STEHLI AND CO., INC., ET AL. 1441
order the respondent to reinstate him, with back pay, in the manner
provided below in the section entitled "Remedy."
George Carpenter had been employed by the respondent for about
20 years on and off. For 10 years prior to the strike he occupied the
position of weaver on the first shift. On August 19, 1937, he applied
for reinstatement to his former position and was denied such rein-
statement by the respondent. At that time his former position was
occupied by another person. On August 31, 1937, he accepted a posi-
tion as a weaver on the third shift. On November 16, 1937, he was laid
off temporarily for lack of work. Since employees on the third shift
are laid off for lack of work before employees on the first shift, he
would not have been laid off if the respondent had reinstated him
to his former position. We will order the respondent to reinstate
him, with back pay, in the manner provided below in the section
entitled "Remedy."
Lewis E. Frank had been in the respondent's employ for 15 or 16
years as a weaver on the first shift. On August 19, 1937, he applied
for reinstatement to his former position and was denied such rein-
statement by the respondent. At that time his former position was
occupied by another person. On August 24, 1937, he accepted a posi-
tion as weaver on the second shift. On November 19, 1937, he was
temporarily laid off for lack of work. Since employees on the second
shift are laid off for lack of work before employees on the first shift,
he would not have been laid off if the respondent had reinstated him
to his former position. He desires to be reinstated to his former
position on the first shift. We will order the respondent to reinstate
him, with back pay, in the manner provided below in the section
entitled "Remedy."
Eugene Skiles had been employed by the respondent for about
a year and a half before the strike. He was employed as a shuttle
filler on the first shift until July 26, 1937, at which time, because he
seemed a "promising and intelligent" young man, he was promoted
to weaving. At the commencement of the strike he already had his
own set of six looms. On August 18, 1937, he applied for reinstate-
ment to his former position and was denied such reinstatement by
the respondent. Lerbscher told Skiles that his looms were taken,
but that he could probably secure a job on the third shift when it was
opened. Skiles asked Reich that same evening for a position on
the third shift. Reich told Skiles that he did not have a weaving
job available, but could put him back on shuttle filling. Skiles told
Reich he preferred a shuttle-filling job to no work at all. He went
back to work on August 25, 1937, as a shuttle filler on the third shift.
He was laid off on November 17, 1937, because the qualities of yarn
which were being woven at that time did not require shuttle fillers.
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If Skiles had been reinstated at the termination of the strike to
his former or substantially equivalent position on the first shift, he
would not have been laid off on November 17. His lay-off is therefore
a consequence of the respondent's discriminatory method of reinstat-
ing the striking employees. Although Skiles testified that his aver-
age earnings were higher after the strike than before, he stated that
he desired to be reinstated to his position on the first shift. We will
order the respondent to reinstate him, with back pay, in the manner
provided below in the section entitled "Remedy."
Harold McKonly and Leroy Emmerich had been employed by the
respondent as shuttle fillers on the first shift for about a year prior
to the strike. Because they also seemed "promising and intelligent"
young men, they were promoted to weaving on the first shift on
July 26, at the same time as Skiles was promoted. Thus at the com-
mencement of the strike they occupied positions as weavers on the
first shift.
On August 19, 1937, McKonly and Emmerich applied for reinstate-
ment to their former positions and were denied such reinstatement
by the respondent. Lerbscher told them their looms were taken and
they would have to wait until the third shift was opened.
McKonly asked Reich for a job on the third shift on August 25,
1937, and that day returned to work as a shuttle filler on the third
shift.
Emmerich had obtained other employment and so did not again
request reinstatement until August 31, 1937. He returned to work
for the respondent on September 1 as a weaver on the third shift
on looms he had never before operated. He had so much trouble with
them that he was put back on shuttle filling about 3 weeks later.
McKonly and Emmerich did not come in to work on September
23, the day after pay day, because, they claimed, they were ill.
When they came in to work on the next working day, September 27
1937, they were discharged because, Reich testified, they had stayed
away from work the day following pay day after they had been
previously warned about such conduct. As far as the record dis-
closes, they were discharged for the reason testified to by Reich.
We have found above that the respondent engaged in unfair labor
practices within the meaning of Section 8 (3) of the Act as to Mc-
Konly and Emmerich by refusing to reinstate them to their former
or substantially equivalent positions when they applied for reinstate-
ment on August 19, 1937. Nevertheless, we will not, in our discretion.
order the respondent to reinstate them to their former or substantially
equivalent positions on the first shift because their discharge on
September 23, 1937, did not spring from and was not intimately asso-
ciated with their discriminatory reinstatement to positions on the
third shift.
STEHLI AND CO., INC., ET AL. 1443
Alonzo W. Sheneman had been in the respondent's employ for
about 18 years. Prior to and at the commencement of the strike he
occupied the position of loom fixer on the first shift. He was the
only loom fixer who was active in behalf of the Union. On August
18, 1937, he applied for reinstatement to his former position and was
denied such reinstatement by the respondent. At that time his
former position was occupied by Resch, who had been a loom fixer
on the third shift at the commencement of the strike and who had
been active in organizing the Independent. On August 26, 1937,
Sheneman accepted a position as weaver on the third shift at much
less pay than he had received as a loom fixer. In its answer the
respondent states that it reemployed Sheneman as a weaver because
as a loom fixer he had been found neglectful of his work, unreliable,
and unsatisfactory. The record shows that there had been no com-
plaints about him prior to the strike. The respondent's records show
that as a loom fixer he usually received the bonus which was added
to a loom fixer's pay if the material woven on the looms assigned
to his care measured up to certain standards.
Huber and Lerbscher testified that four girls who had worked
under Sheneman had complained about him and had stated that they
would not work under him. The four girls were called as witnesses
by the respondent and testified that they were receiving better serv-
ice from Sheneman's successor.35 This testimony is of no significance
since at least three of the girls and some of the respondent's super-
visors admitted that Sheneman's work had always been satisfactory
until the period just preceding the strike. Sheneman asked these
four girls to join the Union, but they admitted that he never said
he would not fix their looms if they did not join the Union. More-
over, three of the girls testified that they did not suggest the notion
of refusing to work under Sheneman. It appears that this notion
originated with the fourth girl, Alverta Behmer. Behmer admitted
that it was because of her dislike of Sheneman that she preferred
not to work under him. She testified that whenever Sheneman "saw
me do anything at all that wasn't my place to do . . . he would
go and tell on me. And naturally I was called to the office a couple
of times. So I thought some day my chance would come." Appar-
ently the strike was her chance and she made use of it as stated
above. However, Behmer did not go to Lerbscher and complain
about Sheneman, but made her complaint to him when he questioned
her and the other three girls during the strike about Sheneman.
as It appears that the earnings of these four girls were to some extent increased after
the strike . This was due , however, to the fact that the rates were increased on the
qualities which they were weaving, and not because Resch gave them better service than
Sheneman had.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Lerbscher had talked to Sheneman several times after the
strike, he did not tell Sheneman of the girls' complaint until about
2 weeks before the hearing when they were talking about the Board
proceeding. It seems reasonable to suppose that if the girls' com-
plaint was the real reason for Sheneman's demotion, he would have
been so informed at the time of his demotion. Lerbscher and Shene-
man had been very friendly prior to the strike. Lerbscher knew
of Sheneman's activities and had told him that he was making a
mistake. Lerbscher testified that he became angry at Sheneman be-
cause the latter solicited membership in the plant despite a promise
not to do so. After the strike Lerbscher preferred not to have Shene-
man working on Lerbscher's shift (the first shift), and testified that
their relations had grown less friendly. Lerbscher clearly resented
Sheneman's interest in the Union.
We find that the respondent sought out and utilized the complaint
of the four girls as a pretext for not reinstating Sheneman to his
former position. We will order the respondent to reinstate him,
with back pay, in the manner provided below in the section entitled
"Remedy."
Clarence Harman had been in the respondent's employ for a total
of about 9 years, and steadily for about the last 71/2 years. Prior to
and at the commencement of the strike he occupied the position of
weaver on the first shift. On August 19, 1937, he applied for rein-
statement to his former position, and was denied such reinstatement
by the respondent. At that time his former position was occupied
by another person. He applied again on August 23, 1937, and was
told by Lerbscher that "I don't have anything for you. Somebody
will have to die before I ever take you on the first shift." Earl
Lynch, an assistant superintendent who was present, told Harman,
who had been a captain of the picket line, that he had been "anything
but a gentleman on the picket line." As a matter of fact, as Super-
intendent Reich testified, the picket line had not been disorderly.
Harman had been complimented by the State police for his work on
the picket lines, and informed Lynch of this fact.
Since Harman realized that he could not secure reinstatement to
his position on the first shift, he asked Reich on August 24, 1937, for
a position on the third shift, explaining that he wanted it only
temporarily since he hoped eventually to get back to the first shift.
He started to work as a weaver on the third shift on August 25. On
October 2, 1937, at about 1: 30 a. m., Harman was discharged, al-
legedly for smoking. One night shortly after Harman began work-
ing on the third shift, he asked Assistant Superintendent Keeler if
he could go out into one of the courts and smoke. Keeler referred
him to Superintendent Reich, who refused to grant him permission
STEHLI AND CO., INC., ET AL. 1445
because it was against the rules. About 2 or 3 weeks later, Keeler
saw Harman coming in through the lobby. Although he was not
sure Harman had been outside, Keeler reported this incident to Reich.
Reich told Keeler to watch Harman, which Keeler did, until he
caught him going out again several days later. Keeler testified that
he found Harman in one of the courts smoking a cigarette, and that
Harman admitted to him then, and again later when Keeler brought
him before Reich, that he had been smoking. Harman, however,
denied that he was smoking, and explained that he had gone out for
a breath of fresh air because he was not feeling well. He was not
accustomed to working nights, and found it almost impossible to sleep
during the day because of his children. He found it necessary oc-
casionally, in order to stay awake, to leave his work and go out for.
some fresh air or to splash water on his face. He felt so ill on the
night on which he was discharged that he had considered not going
to work, but finally decided he would since it was the last night of the
week. He testified that he went to the doctor about a week after his
discharge, and was told that he had shingles as a result of upset
nerves.
Harman testified that, on the night of his discharge, he pleaded
with Reich to give him his job back, but Reich told him that "We
were laying for you many times and we were going to fire you, and I
didn't give a damn what it was for." Reich refused to permit
Harman to operate his looms for the remainder of that shift, refused
to give him his pay, and refused even to permit him to wait in the
plant until the pay office opened. Harman testified further that
Keeler later told him that "Mr. Reich gave me orders to keep my eye
on you and fire you."
Harman -vent back to the plant on October 5 to talk to Huber.
He told Huber he had not been smoking, and explained that he had
gone out in the yard to refresh himself. Huber refused to reinstate
him, and refused also to give him a written reference.
When asked if there was much smoking on the third shift, Reich
stated that the first and second shifts do not "run into it like we do
on the third shift . . . We have to follow it up pretty close." Never-
theless, some of the supervisors who had been employed by the respond-
ent for about 20 or 30 years could not recall anyone else ever having
been discharged for smoking. Reich finally stated that he remembered
that several employees had been discharged for smoking, but he could
recall the name of only one, George Kurl. When Kurl, a 17-year old
boy, was called as a witness by the Board, he testified that he had not
been discharged for smoking or for any other reason, but had•ouit after
working only one night because the work made him ill.
164275-39-vol. xi-92
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harman had joined the Union a few days after the May 2 meeting,
and was active in organizing the Union. He was on the shop com-
mittee, and was a captain of the picket line. He was strongly opposed
to the formation of an unaffiliated union. His activity in the Union,
and his opposition to the organization of an unaffiliated union, were
well known to his supervisors as a result of several conversations he
had had with some of them. He had sought, on the morning of August
9, to induce Huber to consent to an election and thus prevent the strike.
In the course of this conversation he told Huber that as a member of
the shop committee, he would of course participate in the strike.
Although it is not entirely clear from the record whether or not
Harman actually was smoking on the night of his discharge, under
all the circumstances the respondent's action in summarily discharging
him seems unwarranted, even if he had been smoking.
The court in which Keeler found Harman on the night of his dis-
charge was one in which the employees were permitted to smoke
before and after working hours, so apparently no serious fire hazard
was involved. Since Harman's discharge, a new law has gone into
effect in Pennsylvania which requires that night-shift employees be
given a rest period, during which they can smoke.
The refusal to permit Harman to operate his looms for the remainder
of the shift, the refusal to give him a written reference, the general
attitude of hostility toward him, and the rigid enforcement against
him of a rule which was so rarely invoked, all lead to the conclusion
that the respondent was motivated by a desire to find an excuse to
discharge Harman. On the basis of the entire record, we find that
Harman was discharged because of his membership in, and activity
on behalf of, the Union. The respondent's discharge of Harman con-
stituted a further discrimination against him in regard to hire and
tenure of employment. Moreover, we have found above that the re-
spondent engaged in unfair labor practices within the meaning of
Section 8 (3) of the Act in refusing to reinstate Harman to his former
position on the first shift when he applied for reinstatement on August
19, 1937. Even if the respondent honestly discharged Harman on
October 2, 1937, because it actually thought that he had been smoking,
we would nevertheless order him reinstated to his former position on
the first shift since the circumstances surrounding his discharge grew
out of the respondent's discriminatory refusal to reinstate him to the
first shift. As a result of this discriminatory refusal to reinstate him,
Harman's usual manner of living was considerably disarranged, and
we cannot find that his alleged smoking on October 2, 1937, even if it
did occur,•has in any way made him unfit to occupy his former posi-
tion on the first shift and to perform his work under the conditions
under which he was entitled to work.
STI;HLI AND CO., INC., ET AL. 1447
Harman was unable to obtain employment following his discharge,
and was not employed at the time of the hearing. The only work he
found available was on a night shift, and this he refused because
night work had already seriously affected his health. He stated that
he desired to be reinstated to the position he held at the commence-
ment of the strike on August 9, 1937. We will order the respondent
to reinstate Harman, with back pay, in the manner provided below in
the section entitled "Remedy."
Catherine W. Harmes began working for the respondent on May
26, 1937, and worked steadily on the first shift in the copping de-
partment until August 9, 1937, when she went out on strike. On
August 19, 1937, she applied for reinstatement to her former position
and was denied such reinstatement by the respondent. At that time
her former position was occupied by another person. Thereafter
she applied for work almost weekly, until on October 20, 1937, she
was reemployed at the same work she had performed at the com-
mencement of the strike. When she was reemployed she was told
that it was for a 3 or 4 weeks' trial. On November 19, 1937, she was
laid off for lack of work.
In its answer the respondent states that Harmes was known to be
an inefficient worker. This was not the reason given her when she
applied for reinstatement on August 19, 1937. In fact she was not
reemployed because her position was occupied by another person.
The record establishes that Harmes was laid off on November 19,
1937, for lack of work and not because her work was unsatisfactory.
Moreover, it is clear that the respondent regarded her as having quit
her employment when she went out on strike, and that it was its
policy to give preference to persons who returned to work during
the strike in subsequent lay-offs for lack of work. Hence it is pos-
sible that if Harmes had been fully reinstated to her former position
and had not been regarded as an employee who had quit, she would
not have been laid off on November 19, 1937. We will order the re-
spondent to reinstate her, with back pay, in the manner provided
below in the section entitled "Remedy."
George F. Hurter had been in the respondent's employ on and off
since 1931, and had worked steadily for about 2 years before the
strike. Prior to and at the commencement of the strike he occupied
the position of weaver on the third shift. On August 20, 1937, he
applied for reinstatement to his former position. Reich, superin-
tendent of the third shift, told Hurter there would be no position
available for him until the third shift reopened. Hurter accepted
reinstatement on August 24, on the third shift, but on different
looms. Hurter was discharged on September 15, 1937, allegedly be-
cause a piece of material he had woven was graded by Cavin, chief
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
examiner of the woven material, as a "CC" piece, a term used to desig-
nate an exceptionally bad piece of work. Hurter explained that he
had woven the CC piece because-
... there was bad filling on the loom. The shuttles were no
good. The fixer worked on it. He worked on that loom ever
since the work was put in, and he came to my looms every night
and took a couple of broken picks out. That was all that was
in the piece. I have a green shuttle filler and I never run those
looms before in my life. The fixer claimed that he did not work
on them for about eight years. I had to weave, I had to fill shut-
tles, and I had to watch for imperfections, and I had to do
everything.
However, the part of the piece in question that had been woven on
the same looms on the first shift was perfect, and the part woven
on the second shift contained five weaver's defects, none of them due
to loom trouble. The piece had been started and completed on the
third shift, so that Hurter had woven more than one-third of the
entire piece. The parts he had woven contained 23 defects. Lavin
admitted that these defects were due to loom trouble.. Hurter would
be responsible for such defects unless he notified the loom fixer about
them. Hurter claims that he did so. Upon being notified, the loom
fixer should have marked the defects to indicate that they were due
to loom trouble, and that he had been notified thereof by the weaver.
One of the imperfections was marked but Cavin testified that he
could not determine whether it was a loom fixer's mark, and, fur-
ther, that the other 22 imperfections were not marked at all. Hurter
explained that the lack of marks on the other imperfections was due
to the fact that the loom fixer was not able to take care of the trou-
ble himself, so the latter requested Keeler, the assistant superintend-
ent, several times to look at it, but Keeler failed to do so. Under
such circumstances, however, it was Hurter's duty to close down
the looms and not to continue weaving obviously defective material.
There is no explanation in the record for Hurter's not closing down
the looms. Shortly after Hurter's discharge, a change was made in
the looms whereby imperfections could be seen more readily. Huber,
however, claimed that Hurter should have been able to see the imper-
fections under the old arrangement since the other weavers could.
Hurter had woven several other bad pieces since he returned to work
after the strike, although this was his first CC piece. It also appears
that he had been warned, over a period of a year or more, by Cavin,
Huber, and Reich that his work was not satisfactory. Hurter ad-
mitted that his work had been criticized by his superiors, but denied
that it was criticized more often than that of other weavers, and also
denied that he had ever been threatened with discharge because of
STEHLI AND Co., INC., ET AL. 1449
poor work. Several of the pieces of cloth on which Hurter had
worked had to be sold at reduced rates because of defects. The
piece on which he had done CC work would probably prove to be a
total loss since the customer had refused to accept it even at the
greatly reduced price for which the respondent offered to sell it.
Hurter testified that he was the only one on his floor who did
not sign the petition for an independent union. He had been fairly
active in organizing the Union. One night toward the end of June,
Hurter was standing outside the mill talking about the Union to
employees going in to work on the third shift. One employee named
Kertz, whom Hurter tried to sign up in the Union, seemed unable
to make up his mind, and came back several times to talk to Hurter
further about it. Reich, who had apparently observed this incident,
called Hurter to the office and warned him about interfering with
the employees coming in to work. Hurter explained that Kertz kept
coming back of his own accord. Kertz was called to the office and
verified Hurter's story. Hurter was a member of the shop com-
mittee, and a captain of the picket line. Hurter, in fact, was on
the "greeting committee" which greeted the employees as they came
out of the mill. Although the weight of the evidence shows that
the picket lino was conducted in an orderly manner, Huber testi-
fied that the sheriff had told him that "there were a few bad actors
on the picket line and that Hurter was one of them."
It thus appears that some of the respondent's officials knew and
disapproved of Hurter's union activities. Although this case is not
free from doubt, we find that Hurter was discharged on September
15, 1937, for unsatisfactory work and not for union activities. While
Hurter's bad work may, to a small extent, have been due to the fact
that the respondent discriminatorily reinstated him to different looms,
under all the circumstances, we will not in our discretion order the
respondent to reinstate him.
2. Failure to reinstate William C. Overly
William C. Overly had been in the respondent's employ since
May 11, 1937, as an extra man in the sizing department. He had
also been employed by the respondent on a few occasions prior to
that date. He told Shenk, his supervisor, on August 9, 1937, that
he wanted to work during the strike. The work of the sizing de-
partment was so greatly reduced because of the strike that Shenk
did not need Overly in that department, but arranged to provide
work for him in the twisting department. Overly worked all day
August 9, but went out on strike on August 10. On August 19, 1937,
he applied for reinstatement to his former position. Shenk told
him that the sizing department was not running at full production,
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that he would send for him when it was. Up to the time of the
hearing, the sizing department had not been operating fully, so that
Overly's services had not been needed. We find that Overly was
not discriminatorily denied reinstatement to his former or substan-
tially equivalent position. However, since he- ceased work as a con-
sequence of the respondent's unfair labor practices, we will order
the respondent to reinstate him in the manner provided below in the
section entitled "Remedy."
3. Discharges
George D. Booth 33 began working for the respondent in 1917, and
had been in the respondent's employ on and off for a total of about
15 years. He occupied the position of a weaver on the third shift.
When the respondent reduced the weaving rates on certain materials
in February 1937, Booth's looms were affected. He was one of the
three employees who stirred up the others to protest this rate reduc-
tion, which protest culminated in a stoppage of work at the end of
the third shift and the beginning of the first shift on the morning
of February 25, 1937. He was, furthermore, one of the committee
of three employees who negotiated the settlement of this dispute with
Huber. He was discharged on February 26. Reich and Keeler testi-
fied that Booth was discharged because he left his looms too fre-
quently to go to the hydrant, and because his production was too low.
They testified that they had warned him several times that he must
try to increase his production. Reich testified that at the time Booth
was discharged, the respondent had found it necessary to close down
the section where he was employed, and since he had better weavers
"Counsel for the Board made a motion at the hearing that the complaint be amended
by adding allegations of discrimination against Booth . Counsel for the respondent
objected to an amendment of the complaint during the hearing which would involve
additional charges, even of the same nature as charges already contained in the com-
plaint. The Trial Examiner granted the respondent 5 days in which to file an answer
to the amended complaint . At the expiration of the 5 days he granted the motion to
amend the complaint . It was agreed by counsel for the Board and counsel for the
respondent "that the amendment as set forth orally and as recorded in the record and
the ,denial of the allegation by counsel for the respondent , as stated orally and as
included in the record , is sufficient for the purposes of this record and for the purposes
of complying with the rules and regulations of the Board " The Board and the re-
spondent produced testimony concerning Booth. The Trial Examiner , however, in his
Intermediate Report, stated that he would make no finding concerning Booth since the
amended charges contained no allegations as to Booth.
The Trial Examiner erred in this respect. See Matter - o f Shell Petroleum Corporation
and International Union of Operating Engineers, 10 N. L. R B. 719, in which the
Board said :
The function of the charge is to call the attention of the Board to the fact
that certain unfair labor practices are alleged to have been committed . It is not
essential that the charge described the alleged unfair labor practices with the
same particularity as the complaint . . . . The portions of the complaint objected
to are not extensions beyond the primary allegations of the charge , but constitute
a setting forth in greater detail of the violations alleged to -lave been committed
by the respondent.
STEHLI AND CO., INC., ET AL. 1451
available, he let Booth go. When Huber was asked why Booth was
discharged for inefficiency after so many years of employment, he
answered that "when people who sometimes for years have been satis-
factory became interested in or were influenced in a way like it hap-
pened during the past few months, they changed so radically as not
to be the same people for us any more, and . . . they take a de-
fiant attitude and refuse to take orders from. their superiors. So
that today, after many years of satisfactory service, he became ab-
solutely unsatisfactory." When asked if he was talking generally
about some of the workers, Huber answered, "Yes; but first to explain
as to why George Booth, after so many years of employment, was
then found unsatisfactory at that time." Huber's explanation seems
to be predicated on the notion that an employee who engages in con-
certed activity with other employees for their mutual protection is
no longer fit for employment by the respondent. In the case of
Booth, his "unsatisfactory service" can have reference only to the
incident on February 25, the day preceding his discharge. When
Reich discharged him, Booth stated that "I am getting fired because
I went in to see Mr. Huber." Reich answered that "it isn't that at
all. You know yourself what has taken place with you in the last
few months, that you have given us not your best service." Even
though Booth's production may have decreased for some time prior
to his discharge, such fact was not, in view of Huber's explanation
for Booth suddenly becoming an unsatisfactory worker after 15 years
of employment with the respondent, the real reason for his discharge,
but was merely utilized as a pretext to screen the respondent's true
reason, his active participation and leadership of employees engaging
in concerted activity on February 25. We find under all the circum-
stances that Booth was discharged because of his action in stirring
up the respondent's employees to protest the cut in weaving rates.
By discharging Booth because he engaged in concerted activity for
the purposes of collective bargaining and other mutual aid and pro-
tection, the respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed by Section 7
of the Act, thereby engaging in an unfair labor practice within the
meaning of Section 8 (1) of the Act.37 In addition, a discharge for
that reason discourages concerted activity for the purposes of col-
lective bargaining, and has the effect of discouraging the formation
of and membership in a labor organization, which is the customary
instrument utilized by employees to achieve collective bargaining, and
constitutes an unfair labor practice within the weaning of Section
8 (3) of the Act.
87Matter of Indianapolis Glove Company and Amalgamated Clothing Workers of
America, Local No. 145, 5 N. L. R. B. 231. -
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paul V. Schreck had been in the respondent's employ since 1924.
Prior to and at the commencement of the strike he occupied the
position of machine twister and spare hand on the second shift.
On August 19, 1937, he applied for reinstatement, and was rein-
stated to his former position on the same shift. On September 21,
1937, Schreck was discharged, allegedly for wasting too much time.
Schreck admitted that his foreman had criticized him several times
for leaving his department too frequently. Schreck explained that
his work necessitated his going from one mill to another, but his
foreman, being new on the job, did not understand that until one
of the foremen explained it to him. Beazley and Huber, however,
testified that Schreck had been criticized several times, beginning as
early as March 1937, about leaving his work too frequently and
about his attitude toward his supervisors. Schreck admitted that
when Beazley told him he could come back to work, he warned him
about his disposition toward his foremen. On the night on which
Schreck was discharged, Beazley found him in another department
talking to two girls. When Beazley asked him what he was doing,
he answered that he had just stopped to say hello.
Although Schreck signed up a few members in the Union during
the strike, he does not appear to have been particularly active in the
Union.
We find that the record does not support the allegations of the
complaint that the respondent discharged Schreck because of his
union membership or activity.
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
have led and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act.
We have found that the respondent has dominated and interfered
with the formation and administration of the Independent Silk
Workers Union of Rossmere and has contributed support to it. In
order to effectuate the policies of the Act and free the employees
of the respondent from such domination and interference, and the
STEHLI AND CO., INC., ET AL. 1453
effects thereof, which constitute a continuing obstacle to the exercise
by the employees of the rights guaranteed them by the Act, we
will order the respondent to refrain from any recognition of the
Independent as representative of any of the respondent's employees
for the purpose of dealing with the respondent concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment,
and conditions of work, and to disestablish it as such representative 33
We will also order that the respondent, upon request, bargain
collectively with the Union as the exclusive representative of its
employees in the appropriate unit.
Since the strike was caused and prolonged by the respondent's
unfair labor practices, and in view of our finding of unfair labor
practices within the meaning of Section 8 (3) of the Act as to the
employees listed in Appendix A,39 we shall, to effectuate the pur-
poses and policies of the Act, order the respondent to offer rein-
statement to the employees listed in Appendix A, and, upon appli-
cation, to all the employees, including William C. Overly, who went
on strike and who (1) have not since been reinstated at all, or (2)
have not since been fully reinstated to their former or substantially
equivalent positions on the shifts on which they were employed at
the commencement of the strike, or (3) have since been reinstated
to any position, but were thereafter temporarily laid off for lack of
work ,40 to their former or substantially equivalent positions on the
shifts on which they were employed at the commencement of the
strike. The offer of reinstatement shall be without prejudice to
their seniority and other rights and privileges. Such reinstatement
shall be effected in the following manner :
All persons not in the respondent's employ at the commencement
of the strike, hired after August 9, 1937, the date of the commence-
ment of the strike, shall, if necessary to provide employment for the
employees referred to in the preceding paragraph and who accept
reinstatement, be dismissed. If, after this is done, there is not, by
reason of a reduction in the force of employees needed, sufficient
31 See Consolidated Edison Co . v. National Labor Relations Board, 59 S. Ct. 206 ( 1938),
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
whose continuance thwarts the purposes of the Act and renders ineffective any
order restraining the unfair practices.
3D In the case of George D. Booth, listed in Appendix A, we also found that the
respondent , by discharging him, engaged in unfair labor practices within the meaning
of Section 8 (1) of the Act , independently of our finding of unfair labor practices within
the meaning of Section 8 (3) of the Act as to him. We would require his reinstatement,
with back pay, to remedy the unfair labor practices within the meaning of Section 8 (1)
of the Act, even if we had not found unfair labor practices within the meaning of
Section 8 (3) of the Act.
40 We shall not order the respondent to offer reinstatement to striking employees who
were reinstated following the termination of the strike , but who, we have found above,
were subsequently discharged for cause.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment immediately available for the remaining employees,
including those referred to in the preceding paragraph and who
accept reinstatement, all available positions on each shift shall be
distributed among such employees, without discrimination against
any employee because of his union affiliation or activity, following a
system of seniority (or other procedure) as to each shift to such extent
as has heretofore been applied in the conduct of the respondent's
business. Those employees remaining after such distribution, for
whom no employment is immediately available, shall be placed on a
preferential list prepared in accordance with the principles set forth
in the preceding sentence, and shall thereafter, in accordance with
such list, be offered employment in their former or substantially
equivalent positions, on the shifts on which, they were employed at
the commencement of the strike, as such employment becomes avail-
able and before other persons are hired for such work; but if, before
such employment becomes available, other employment for which they
are qualified, on any shift, becomes available, they shall be offered
such employment before other persons are hired for such work, pro-
vided however, that those who accept such employment shall, in
accordance with the preferential list, be offered employment, as it
becomes available, in their former or substantially equivalent posi-
tions on the shifts on which they were employed at the commence-
ment of the strike, before other persons are hired for such work.
Although the record shows that some of the employees listed in
Appendix A had, up to the time of the hearing, earned as much as
they would have earned if the respondent had reinstated them to their
former positions, it is possible, however, that such has not been the
case since the time of the hearing. Accordingly, we shall also order
that the respondent make whole all the employees listed in Appendix
A, except George D. Booth, for any losses of pay they may have suf-
fered by reason of the respondent's discrimination against them, by
paying to each of them an amount equal to that which he would have
earned as wages during the period from August 18, 19 or 20, 1937,
as the case may be, to the date of the offer of reinstatement, or place-
ment on the preferential list, less his net earnings 41 during that
period, had the respondent, on August 18, 19 or 20, 1937, as the case
may be, reinstated him to his former or substantially equivalent posi-
#I By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N L. R B. 440. Monies
received for work performed upon Federal , State, county , municipal , or other work -relief
projects are not considered as earnings , but, as provided below in the Order, shall be
deducted from the sum due the employee , and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal , State, county , municipal , or other govern-
ment or governments which supplied the funds for said work -relief projects.
STEHLI AND CO., INC., ET AL. 1455
tion on the shift on which he was employed at the commencement of
the strike, and had the respondent, in the event of any subsequent
reduction of the force of employees needed, reduced its force in
accordance with its usual method of • reducing its force, without dis-
crimination against any employee because of his union affiliation or
activities, following a system of seniority (or other procedure) to
such extent as has heretofore been applied in the conduct of the
respondent's business. Since the Trial Examiner found that Cath-
erine W. Harmes was not discriminated against and did not recom-
mend her reinstatement, we shall exclude from the computation of
her back pay the period from February 28, 1938, the date of the
Intermediate Report, to the date of the Order herein. This is in
accordance with our rule that the respondent could not have been
expected to reinstate her after the date of the Intermediate Report
which recommended the dismissal of the complaint as to her.42
We shall also order the respondent to make payment to George
D. Booth of a sum of money equal to that which he would normally
have earned as wages during the period from February 26, 1937, to
the date of the offer of reinstatement, or placement on the preferen-
tial list, less his net earnings 43 during that period. We shall exclude
from the computation of his back pay the period from February 28,
1938, the date of the Intermediate Report, to the date of the Order
herein, because the Trial Examiner did not find that Booth had been
discriminated against and did not recommend his reinstatement.
We shall also order that the respondent make whole the other em-
ployees ordered to be offered reinstatement for any loss 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 5 days
after the date of such application for reinstatement to the date of
the offer of reinstatement or placement on the preferential list, less
his net earnings 44 during that period.45
THE PETITION
In vibw of the findings in Section III above as to the appropriate
unit and the designation of the Union by a majority of the respond-
4-'Matter of E. R. Haf'elfinger Co., Inc. and United Wall Paper Crafts of North America,
Local No. 6, 1 N. L. R. B. 760.
43 See footnote 41, supra.
" See footnote 41, supra.
45 Oregon Worsted Co . v. National Labor Relations Board, 94 F . (2d) 671 (C C. A
9th), enforcing order in Matter of Oregon Worsted Company and United Textile Workers
of America, Local $435, 3 N. L. R. B . 36; Bites-Coleman Lumber Co . v. National Labor
Relations Board, 98 F. (2d) 18 (C. C. A. 9th), enforcing order in Matter of Bites-
Coleman Lumber Company and Puget Sound District Council of Lumber and Sawmill
Workers, 4 N. L. It. B. 679.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's employees in the appropriate unit as their representative for
the purposes of collective bargaining, it is not necessary to consider
the petition of the Union for investigation and certification of repre-
sentatives. Consequently, said petition will be dismissed.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Textile Workers Union of Lancaster, Pennsylvania and Vicinity,
Local #133, and Independent Silk Workers Union of Rossmere,
formerly known as Stehli Independent Silk Workers Association and
as Independent Silk Workers Union of Employees of Stehli, Inc.,
are labor organizations within the meaning of Section 2 (5) of the
Act.
2. The production and maintenance employees, exclusive of office
help, salesmen, watchmen, firemen, truckmen, executives, superin-
tendents, foremen, assistant foremen, and those doing supervisory
work, employed at the respondent's plant in Lancaster, Pennsylvania,
constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the Act.
3. Textile Workers Union of Lancaster, Pennsylvania and Vicinity,
Local #133, was on August 10, 1937, and at all times thereafter has
been, the exclusive representative of all the employees in such unit
for the purposes of collective bargaining, within the meaning of
Section 9 (a) of the Act.
4. The respondent, by refusing to bargain collectively with Textile
Workers Union of Lancaster, Pennsylvania and Vicinity, Local
#133, as the exclusive representative of its employees in an ap-
propriate unit, has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (5) of the Act.
5. The respondent, by dominating and interfering with the forma-
tion and administration of Independent Silk Workers Union of
Rossmere, and by contributing support to it, has engaged in and is
engaging in unfair labor practices, within the meaning of Section
8 (2) of the Act.
6. The respondent, by discriminating in regard to the hire, tenure,
and conditions of employment of Walter Zurcher, Earl Weinhold,
John Caulwell, John Gibbs, C. Ellsworth Jones, Harold Rankin,
William Landis, John McLane, George Carpenter, Lewis E. Frank,
Eugene Skiles, Harold McKonly, Leroy Emmerich, Alonzo W.
Sheneman, Clarence Harman, Catherine W. Harmes, George F.
Hurter, and George D. Booth, thereby discouraging membership in
the Union, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
STEHLI AND CO., INC., ET AL. 1457
7. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities, for the purposes of collective bargaining or other mutual
aid and protection as guaranteed in Section 7 of the Act, has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8 (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
9. The respondent has not discriminated and is not discriminating
in regard to the hire and tenure of employment of Robert H. Hertz,
Charles L. Sload, Paul Yarnall, Paul V. Schreck, and William C.
Overly, and has not engaged and is not engaging in unfair labor prac-
tices, within the meaning of Section 8 (3) of the Act, with regard
to them.
ORDER
Upon the basis of the foregoing 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 Stehli & Co. Inc., and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Textile Workers Union
of Lancaster, Pennsylvania and Vicinity, Local #133, as the exclu-
sive representative of its production and maintenance employees, ex-
clusive of office help, salesmen, watchmen, firemen, truckmen, execu-
tives, superintendents, foremen, assistant foremen, and those doing
supervisory work, employed at the respondent's plant in Lancaster,
Pennsylvania ;
(b) In any manner dominating or interfering with the administra-
tion of Independent Silk Workers Union of Rossmere, or dominating
or interfering with the formation and administration of any other
labor organization of its employees, or contributing support to said
Independent Silk Workers Union of Rossmere, or to any other labor
organization of its employees;
(c) Discouraging membership in Textile Workers Union of Lan-
caster, Pennsylvania and Vicinity, Local #133, or in any other labor
organization of its employees, by discharging, laying off, refusing to
reinstate any of its employees, reinstating them to less desirable posi-
tions, or in any other manner discriminating in regard to hire and
tenure of employment, or any term or condition of employment;
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities, for the purposes of collective bargaining or other mutual
aid and protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Refrain from recognizing Independent Silk Workers Union of
Rossmere, by whatever name now known, as a representative of any
of its employees for the purpose of dealing with the respondent
concerning grievances, labor disputes, rates of pay, wages, hours of
work, or other conditions of employment, and completely disestablish
said organization as a representative of its employees;
(b) Upon request, bargain collectively with Textile Workers Union
of Lancaster, Pennsylvania and Vicinity, Local #133, as the exclusive
representative of the production and maintenance employees, exclu-
sive of office help, salesmen, watchmen, firemen, truckmen, executives,
superintendents, foremen, assistant foremen, and those doing super-
visory work, employed in the respondent's plant in Lancaster, Pennsyl-
vania, in respect to rates of pay, wages, hours of work, or other condi-
tions of employment;
(c) Offer reinstatement to the employees listed in Appendix A,
and, upon application, to all the employees, including William C.
Overly, who went on strike and who (1) have not since been reinstated
at all, or (2) have not since been reinstated to their former or sub-
stantially equivalent positions on the shifts on which they were
employed at the commencement of the strike, or (3) have since been
reinstated to any position, but were thereafter temporarily laid off
for lack of work, but not including those employees who went on strike,
who were reinstated following the termination of the strike, but who,
we have found above, were subsequently discharged for cause, to their
former or substantially equivalent positions on the shifts on which
they were employed at the commencement of the strike, without preju-
dice to their seniority and other rights and privileges, in the manner
set forth in the section entitled "Remedy" above, placing those em-
ployees for whom employment is not immediately available upon a
preferential list in the manner set forth in said section, and there-
after, in said manner, offer them employment as it becomes available;
(d) Make whole all the employees listed in Appendix A, except
Catherine W. Harmes and George D. Booth, for any losses of pay
they may have suffered by reason of the respondent's discrimination
against them, by paying to each of them an amount equal to that which
STEHLI AND CO., INC., ET AL. 1459
he would have earned as wages during the period from August 18, 19
or 20, 1937, as the case may be, to the date of the offer of reinstatement,
or placement on the preferential list, less his net earnings 46 during
that period, had the respondent, on August 18, 19 or 20, 1937, as the
case may be, reinstated him in his former or substantially equivalent
position on the shift on which he was employed at the commencement
of the strike, and had the respondent, in the event of any subsequent
reduction of the force of employees needed, reduced its force, without
discrimination against any employee because of his union activity or
affiliation, following a system of seniority (or other procedure) to
such extent as has heretofore been applied in the conduct of the re-
spondent's business; provided that the respondent shall deduct from
the back pay due each employee a sum equal to that received by such
employee for work done in Federal, State, county, municipal, or other
work-relief projects during the period for which back pay is due him
under this Order, and shall pay any such amount deducted to the
appropriate fiscal agency of the Federal, State, county, municipal, or
other government or governments which supplied the funds for said
work-relief projects;
(e) Make whole Catherine W. Harmes for any loss of pay she
may have suffered by reason of the respondent's discrimination against
her, by paying to her an amount equal to that which she would have
earned as wages during the period from August 19, 1937, to the date
of the offer of reinstatement, or placement on the preferential list,
excluding from the computation of her back pay the period from
February 28, 1938, the date of the Intermediate Report, to the date
of the Order herein, less her net earnings 47 during the periods for
which back pay is computed, had the respondent reinstated her on
August 19, 1937, in her former or substantially equivalent position on
the shift on which she was employed at the commencement of the
strike, and had the respondent, in the event of any subsequent reduc-
tion of the force of employees needed, reduced its force, without dis-
crimination against any employee because of his union activity or
affiliation, following a system of seniority (or other procedure) to
such extent as has heretofore been applied in the conduct of the re-
spondent's business; provided that the respondent shall deduct from
the back pay due flarmes a sum equal to that received by her for
work done in Federal, State, county, municipal, or other work-relief
projects during the periods for which back pay is due her under this
Order, and shall pay any such amount deducted to the appropriate
fiscal agency of the Federal, State, county, municipal, or other govern-
ment or governments which supplied the funds for said work-relief
projects;
40 See footnote 41, supra.
47 See footnote 41, supra.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Make whole George D. Booth for any loss of pay he may have
suffered by reason of his discharge, by paying to him an amount equal
to that which he would normally have earned as wages during the
period from February 26, 1937, to the date of the offer of reinstate-
ment, or placement on the preferential list, excluding from the compu-
tation of his back pay the period from February 28, 1938, the date of
the Intermediate Report, to the date of the Order herein, less his net
earnings 48 during the periods for which back pay is computed; pro-
vided that the respondent shall deduct from the back pay due Booth
a sum equal to that received by him for work done in Federal, State,
county, municipal, or other work-relief projects during the periods
for which back pay is due him under this Order, and shall pay any
such amount deducted to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for said work-relief projects;
(g) Make whole the other employees ordered to be offered rein-
statement in paragraph 2 (c) above for any loss they will have suf-
fered 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
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
reinstatement or placement on the preferential list, less his net earn-
ings 411 during said period; provided that the respondent shall de-
duct from the back pay due each of said employees a sum equal to
that received by said employee for work done in Federal, State,
county, municipal, or other work-relief projects during the period
for which back pay is due him under this Order, and shall pay any
such amount deducted to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for said work-relief projects;
(h) Post immediately notices to its employees in conspicuous places
throughout its plant in Lancaster, Pennsylvania, stating: (1) that
the respondent will cease and desist in the manner set forth in para-
graphs 1 (a), (b), (c), and (d), of this Order; (2) that the re-
spondent will refrain from any recognition of Independent Silk
Workers Union of Rossmere as a representative of any of its em-
ployees, and completely disestablishes it as such representative;
(3) that the respondent's employees are free to remain or become
members of Textile Workers Union of Lancaster, Pennsylvania and
Vicinity, Local #133, and that the respondent will not discriminate
against any employee because of such membership ; and (4) that the
4" See footnote 41, supra.
40 See footnote 41, supra.
STEHLI AND CO., INC., ET AL. 1461
respondent will, upon request, bargain with Textile Workers Union
of Lancaster, Pennsylvania and Vicinity, Local #133, as the rep-
resentative of all its employees, exclusive of office help, salesmen,
watchmen, firemen, truckmen, executives, superintendents, foremen,
assistant foremen, and those doing supervisory work, employed at its
plant in Lancaster, Pennsylvania;
(i) Maintain such notices for a period of at least sixty (60) con-
secutive days from the date of posting;
. (j) Notify the Regional Director for the Fourth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges, with regard to Robert H. Hertz,
Charles L. Sload, Paul Yarnall, Paul V. Schreck, and William C.
Overly, that the respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (3) of the
Act.
AND IT IS FURTHER ORDERED that the petition for investigation and
certification of representatives, filed by Textile Workers Union of
Lancaster, Pennsylvania and Vicinity, Local #133, be, and it hereby
is, dismissed.
APPENDIX A
George D. Booth
George Carpenter
John Caulwell
Lewis E. Frank
John Gibbs
Clarence Harman
Catherine W. Harmes
C. Ellsworth Jones
William Landis
John McLane
Harold Rankin
Alonzo Sheneman
Eugene Skiles
Earl Weinhold
Walter Zurcher
164276-39-vol. xi-93