The American Laundry Machinery Co.

In the Matter of THE AMERICAN LAUNDRY MACHINERY COMPANY and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, C. I. O. Case No. C-0315.-Decided November 4, 1942 Jurisdiction : laundry machinery manufacturing. Unfair Labor Practices Interference, Restraint, and Coercion: Surveillance over union meetings and dis- tribution of union leaflets; expressions of disapproval of the union by super- visors. Discrimination: Discharge of four employees active in the union: Remedial Orders: reinstatement and back pay awarded; fact that one employee ordered reinstated with back pay was a member of the armed forces, held not to affect respondent's obligation to pay him immediately the amount due him for the period from the date of his discriminatory discharge to the date of his in- duction into the armed forces, even though he might become entitled to further back pay following his timely application for reinstatement upon his discharge from the armed forces. DECISION AND ORDER On August 28, 1942, the Trial Examiner issued his Intermediate'Re- port in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and that it take certain affirmative action as set forth in the copy of the Intermediate Report annexed hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a brief in support of its exceptions. During the hearing, the respondent offered and the Trial Examiner refused to admit in evidence copies of certain criminal convictions of Peter Pilaroscio, one of the four employees involved in the proceeding. We are of the opinion that this ruling was improper, and it is hereby reversed. The evidence in question'i's hereby admitted in evidence and ordered made a part of the record. The Board has considered the other rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. These rulings are hereby affirmed. With its exceptions,- the respondent filed a motion that the record be reopened for-the purpose of taking additional evidence as to whether three of the four employees found by the Trial Examiner to have 'been discriminatorily discharged have since obtained substantially equiva- 45 N. L. R. B., No. 57. . V ;' . , 355, . 356 DIECISIONS OF NATIONAL LABOR RELATTONS `BOARD lent employment. Since no reason is given by the respondent for its failure to adduce this evidence at the hearing, and since the question of substantially-equivalent employment is' in any event irrelevant in determining whether reinstatement of the employees in question will effectuate the policies of the Act,' the motion is hereby denied. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board at Washington, D. C., on October 15, 1942, at which the respondent and the Union were represented by counsel. The Board has considered the Intermediate Report, the respondent's ex- ceptions and brief, and the entire record in the case, and.hereby adopts the findings, conclusions, and recommendations made by the Trial -Examiner, with the exceptions and additions noted below : 1. The Trial Examiner has found that Pilaroscio and Evancho were discriminatorily discharged, thereby, in effect, rejecting Foreman Harry Smith's testimony that he discharged these two employees be- cause the respondent's plant was going into war production and he, therefore, decided to weed out the less desirable employees in March 1942. The record shows, and we find, that prior to the middle of March 1942, the respondent's plant was only partially engaged in war pro- duction. The respondent's production manager, Arthur Loclite, ad- mitted at the hearing that conversion of the plant to war production was taking place only "in a small way" in March 1942, although com- plete conversion was then "contemplated." In any event there is no showing in the record that conversion of the respondent's plant to war production required any lay-offs at all, whether in March or thereafter. On the contrary, it appears from the record that Pilaroscio, who had voluntarily left his job with'the respondent on February 26, 1942, was rehired by Foreman Smith on March 9, 2 days before his discharge. We are therefore of the opinion, and we find, that conversion of the respondent's plant to war production was not the reason for the dis- charge of Pilaroscio'and Evancho. 2. The Trial Examiner liasJ'found, contrary'to Foreman Smith's denial, that Smith knew of Pilaroscio's and Evancho's union affiliation at the time these employees were discharged. It is admitted that employee Russell Tubiola at one time told Foreman Smith that Pila- roscio and Evancho were union members and at the same time asked Smith if it was necessary for Tubiola to join the Union in order to work at the respondent's plant. Smith, however, testified that Tubiola volunteered this information some time after Pilaroscio and Evancho had been discharged. Tubiola, on the other hand, testified, we find, that he had become a union member before Pilaroscio and Evancho - 'Phelps Dodge Corp . v. National Labor Relations Board, 313. U. S. 177; Matter of Phelps Dodge Corporation and International Union of Mine, Mill and Smelter Workers, Local No. 30, 35 N L R. B. 418; Matter of Ford Motor Company and International Union, United Automobile Workers of America, Local Union No. 20, 31 N. L. R. B. 994. THE AMERICAN LAUNDRY MACHINERY COMPANY 357 were discharged,2 and we believe it entirely unlikely that he would have waited until after joining the Union to ask his foreman whether it,was necessary for him to join in order to continue working at the respondent's plant., We, therefore, reject Smith's testimony and find ',that Tubiola informed Smith of Pilaroscio's and Evancho's union membership prior to the discharge of these two employees. 3. The Trial Examiner has found that the respondent had knowl- edge of the union affiliation and activity of employees Massare and Alati. Foremen Denny and Converse did not deny at the hearing that they were aware of the union affiliation of Massare and Alati at the time these employees were discharged. Massare testified without contradiction, and we find, that on March 9, 1942, he placed ap- proximately 25 unsigned union cards in his locker at the respondent's plant and that these cards were missing on March 12, 1942, when he left the plant after having been discharged. Alati testified without contradiction, and we find, that on March 12, 1942, he placed 8 or 10 signed union cards in his locker at the respondent's plant; that shortly before his discharge on March 12, he heard that "the fore- men" were searching the lockers, and that he thereupon ran upstairs to his locker and removed the union cards ; that "to [his] knowledge" the lockers were searched by "a foreman or someone else for the Company" on March 12; and that the respondent has a master key to all the lockers. No attempt was made 'by the respondent to deny or explain this testimony in any way, although it obviously lay within its power to show whether or not any representative of man- agement had a key to the lockers in question and, if so, to have any such representative deny the testimony given by Massare and Alati if it was untrue. We, therefore, find that on March 12, 1942, just prior to -the, discharge of Massare and, Alati, a foreman or some other representative or agent of the respondent made a search of its em- ployees' lockers and that the union cards in Massare's locker were missing after the search. We further find that, at the time Massare and Alati were discharged, the respondent knew generally of the union activity among its employees, in which Massare and Alati were most active participants, and that the respondent knew particularly of Massare's union activity. 4.. We find that the respondent, by-discharging Pilaroscio, Evancho, Massare, and Alati, discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the Union, and interfering with, restraining, and coercing its employees in the ex- ercise of the rights guaranteed in Section 7 of the Act. 2 Tubiola first testified that he joined the Union "about a week" after Pilaroscio and Evancho had joined, but it is clear from all his testimony that he had become a union member before the discharge of Pilaroscio and Evancho 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The Trial Examiner has recommended, in. part, that Pilaroscio be reinstated with back pay upon timely application by him follow- ing his'discharge from the armed forces of the United States. The respondent contends that the Trial Examiner erred.both in excluding the respondent's proffered evidence of. Pilaroscio's criminal convic- tions and in recommending. Pilaroscio's 'reinstatment, despite his criminal record. We have already reversed the Trial Examiner's ruling as to the admissibility of this evidence and have 'ordered it made a part of the record. As we have heretobefore held, reinstate- ment of discriminatorily discharged employees is normally necessary in order to effectuate the purposes of the Act.8 We do not believe that Pilaroscio's convictions warrant our - withholding the remedy normally applicable in such cases. In accordance with the Trial Examiner's recommendation, we shall order Pilaroscio's' reinstate- ment with back pay .4 ORDER Upon the entire record in the.case, and pursuant to Section 10 (c) of 'the National Labor Relations Act, the National Labor Relations Board hereby, orders that the respondent, The American Laundry Machinery Company, Rochester, New York, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Electrical, Radio & Ma-, chine Workers of America, C. - I. 0., or in any other labor organi- zation of its employees by discharging or refusing to reinstate any of its employees or in any other manner discriminating with regard to their hire and tenure of employment or any term or condition of employment ; . - - (b) In any other manner interfering with, restraining, or coerc-, ing its employees in the exercise of the right to self-organization, to form, join, °or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or, other mutual aid, or protection, as guaranteed in Section 7 of: the Act.- 'Take the following affirmative action, which the Board finds will effectuate the policies of the Act : - (a) Offer to Stephen Evancho, Edward Massare, and Nunzio Alati immediate and full reinstatement to their former or substantially, 7 See cases, cited in footnote 1, above. % 4 The fact that Pilaroscio may, under our Order, become entitled to further back pay, following his timely application for reinstatement upon his discharge from .the armed. forces of the United States shall not be regarded as affecting the respondent's obligation to pay him immediately whatever amount is due him for the period from the date of his- discriminatory discharge to the date of his induction into the armed forces of the United, States. THE AMERICAN LAUNDRY MACHINERY COMPANY 359: equivalent positions, without prejudice to their seniority and other rights and privileges ; • (b), Make whole Stephen Evancho, Edward Massare, and Nunzio Alati for any loss of pay they may have suffered because of the respond- ent's' discrimination- against them, by payment to each of them of a sum of money equal to the amount 'which he would normally have' earned as wage's during the period from the date of his discrimina- tory discharge to the date of the respondent's offer of reinstatement, less his net earnings, during that period; .. (c) Offer to Peter Pilaroscio reinstatement to` his former or a -sub- stantially equivalent position, without prejudice to his seniority and other rights and privileges, as set forth in the section of the Inter- mediate Report entitled "The Remedy"; (d) Make whole Peter Pilaroscio for any loss of pay suffered by him because of the respondent's discrimination against him, by pay-` ment . to him of a sum of money equal to the amount which, he nor-, mally would have earned as wages during the periods set forth in the section of, the Intermediate Report entitled "The Remedy," less his net earnings during those periods; (e) Post immediately in conspicuous places throughout its plant, and maintain for 'a period of at least 'sixty (60) consecutive days from the,date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct- from which it is or- dered to cease and desist i)a paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b'), (c); and (d) of this Order; and (3) that the respondent's employees are free to become and remain members of United Electrical, Radio & Machine Workers of America, C. I. O., and that the, respondent will not discriminate against any employee because of membership in or activity on behalf of that organization; (f) Notify the Regional Director for the ,Third Region in writ- ing, within ten. (10) days from the date of this Order, what steps the respondent has taken to comply herewith. Mx. GERAiiD D: REILLY took no part in 'the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Francis V. Cole and Mr. Peter J. Crotty, for. the Board. Mr. John D. Sullivan, Mr. Charles D. Mercer, and Mr. Charles S. Wilcox, of Rochester, N. Y., for the respondent. Mr. George Hoffenberg, of Rochester, N. Y. for the Union. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD STATEMENT OF THE CASE Upon a second amended charge duly filed on May 15, 1942, by United Electrical; Radio & Machine Workers of America, C. I. 0., herein called the Union, the National Labor Relations Board, herein ' called the Board, by the Regional Director for the Third Region (Buffalo, New York), issued its complaint, dated June 29, 1942, against The American Laundry Machinery Company, herein called the respondent,. alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, together with notice of hearing thereon, were duly served upon the respondent and the Union. The respondent thereafter filed its answer, dated July 10, 1942, denying that it had committed any unfair labor practices. During the course of the hearing, the respondent, pursuant to motion granted without objection, filed its amended answer, dated July 20, 1942, denying that it had committed any unfair labor practices and setting up certain affirmative, defenses to the allegations of the complaint. With respect to the unfair labor practices, the complaint alleged, in substance, that the respondent: (1) on March 11, 1942, discharged Peter Pilaroscio and Stephen Evancho, and on March 12, 1942, discharged Nunzio Alati and Edward Massare, and thereafter refused to' reinstate them because of their member- ship in, and concerted activities on, behalf of, the Union; (2) from March 1, 1942, to the date of the complaint, by its officers, agents, and servants, (a) threatened members of the_Union with discharge, •(b) spied upon union meet- ings, and (c) interfered with the distribution of union literature on public property; and (3) by these acts interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. Pursuant to notice, a hearing was held at Rochester, New York, from July 16 through 21, 1942, before the undersigned, Josef L Hektoen, the Trial Exam- iner duly designated by the Chief Trial Examiner. The Board, the respondent, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the close of the Board's case and at the-close of the hearing, the-motions of,counsel for the Board to conform the pleadings to the proof in formal matters were allowed by the undersigned. At the` close of the Board's case and at the close of the hearing, counsel, for the respondent moved to dismiss the complaint in its entirety. The former motion was denied by the undersigned and ruling on the latter motion was reserved by him ; it is hereby denied. At the close of the hearing, the parties waived oral argument; counsel for the respondent subsequently filed a brief with the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, The American Laundry Machinery Company, Rochester, New York, is an Ohio corporation authorized to do business in the State of New York. It maintains a plant in Rochester, New York, where it 'is engaged in the production and sale of military, naval, and laundry machinery and equip- ment. In the calendar year 1941, it used raw materials to the approximate value of $3,500,000, of which approximately 75 percent were shipped to it from' -THE AMERICAN LAUNDRY MACHINERY COMPANY 361 points outside the State of New York . In the same period, it manufactured products to the approximate value of $9 ,500,000, of which approximately 75 percent were shipped by it to points outside the State of New York. The respondent admits that it is engaged in commerce within the meaning of the Act 1 II. THE ORGANIZATION INVOLVED United"Electrical;- Radio & Machine Workers of America, is a labor organiza- tion affiliated with the Congress of Industrial Organizations . It admits to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Chronology of events; interference , restraint, and coercion Early in 1942 , employees in the respondent's foundry discussed the possibility of unionization . In January or February employee Edward Massare asked his brother-in-law, Joseph Cerulli, a Congress of Industrial Organizations repre- sentative, to assist them in their efforts toward organization . Following his advice, Massare interested employees Nunzio Alati and Peter Pilaroscio in the project. On March 7 they met with Cerulli and Walter Wofford, a union representative , signed applications for membership in the Union , and received blank application cards for the signatures of fellow employees . Massare and Alati brought their' 'cards ' into the plant on March 9 and stored them in their lockers. Beginning that day, Massare talked to a number of 'employees about joining the Union. He'obtained no applications for membership . Alati, however, obtained 8 or 10 written applications on March 9 . Pilaroscio obtained the appli- cation of Stephen Evancho on the same day. On March 11 and 12 the employment of the four named employees was termi- nated by the respondent . During the last half of March counsel for the Union corresponded with the respondent and its counsel . Representatives of the Union, as well as Massare and'Alati , met with officials of the respondent in vain efforts to obtain their reinstatement. On the morning of March 12 the Union distributed leaflets outside the plant announcing a meeting for that evening at a union hall in Rochester . Wofford, who was active in doing so, testified , without contradiction , and the undersigned finds, that Foreman Smith 2 and a plant watchman , who were standing inside the entrance, stopped eight or nine employees who had been given leaflets , talked to them, and were handed their leaflets by these employees . The Union thereafter distributed leaflets outside the plant about once a week. It is undenied that on at least one other occasion Foreman George R Smith and General Foreman Cornelius Denny ,stood in the yard of..the plant observing those employees who accepted' leaflets as they `arrived for work. Several Board witnesses testified without contradiction, and the undersigned finds, that Foundry Foreman William J. Converse and Foreman Denny appeared at and loitered outside the meetiiig place of the Union's meetings of March 12, 17, 24, and 313 They left the scene of the March 31 meeting , upon request of Cerulli. It is also undenied, and the undersigned finds, that Production Manager Arthur Lochte while driving in his car paused briefly outside the March 12 1 These findings are based on a stipulation entered into between the Board and the respondent.- 2 The respondent employed two foremen named Smith., harry S Smith was a foreman on the night shift and George R Smith a foreman on the day shift. The record fails to show which of these two foremen was the individual present on this occasion., 8 Converse testified that he was motivated by his own curiosity and that, being of an inquisitive nature, he "went down, just to see what was all taking place." 362 DECISIONS OF NATIONAL' LABOR -RELATIONS' BOARD meeting, and- that' Foreman Denny, `continuing his interest' in the weekly meet- ifigs.of the Union; was observed outside its new gathering placeilas' late as' the time of its July 13 or 14 meeting.' j Employee Benetto Valenti testified without contradiction, and the undersigned finds, that on the day following the Union meeting of March 24, outside of which Foreman Converse had been present; the latter told Valenti in the plant, "You ought'to be ashamed of yourself, go to a Union meeting." Valenti replied that he had nothing of which to be ashamed. , At its meeting of May 5 those present resolved that members of the Union there- after wear buttons in the plant. Beginning May 6 they did so' Several Board witnesses testified without contradiction, and the undersigned finds, that on May 6, Foremen Denny and Converse and Acting Foreman Bruno Konorowski, Jr., who were passing out "I AM' AN AMERICAN" buttons to the employees in,the plant, avoided giving such buttons'to those who wore union buttons: Employee Joseph Bianchi protested to Konorowski who replied, "You got your button." Some of the union members then protested ,the discrimination to Foundry Man- ager Hanley. The latter through Edward Seiser, his assistant, caused them to receive the buttons withheld from them by the foremen. On the same day Denny asked employee Anthony Alati, brother of Nunzio, "What is the idea of wearing your button?" Alati replied that it was necessary for, their welfare that the employees organize. Denny thereupon told Alati, "- you, brother, it is your bread and butter you are going to lose." , , - On May,8 Production Manager Lochte sent for employee Bianchi, who had dis- tributed leaflets for the Union outside the plant that morning. He asked Bianchi "if it was all right" for him to pass out leaflets at a plant engaged in war pro- duction. Bianchi replied that he thought his doing,so, was not objectionable. Lochte then told him that he merely wished to see that Bianchi avoided trouble.' Late in May or early June, Foreman Converse asked employee Leonard Schief- flin, who had been present at what was apparently a sparsely attended union meeting the night before, how it came out, adding, "Gee, you had a big crowd down there, didn't you?" He thereupon, according to Schieffiin, gave him "the ha-ha."' - On July 11 Foreman Bruno Konorowski, Sr., advised employee Peter Harris, a union member who wore his button in the plant, "`Don't join, up., It,won't get you nowhere."' The undersigned finds that by the surveillance.of union meetings and by the anti; union acts and statements of,supervisors and foremen, the respondent has inter- fered with, restrained, and coerced its employees in the exercise of rights, guar- anteed in Section 7 of the Act. , B. The discriminatory discharges's -1. Pilaroscio and Evancho ' Peter Pilaroscio and Stephen Evancho worked as, laborers on the night shift under Foreman Harry Smith. Both were dismissed from their employment on March 11. On that afternoon Smith told Evancho that he was being laid off, gave ' Beginning March 13 a few union members had worn buttons in'the' plant.' ' - 5 These findings are based on the uncontradicted testimony of Bianchi. 9 This finding is based on, the uncontradicted testimony of Schiefflin. 7 This finding is based on the uncontradicted testimony of Harris. Although the record is not clear on this point, their conversation evidently began by Harris' 'complaining of the small 'pay'he was receiving from the respondent, Konorowski's remark being in reply.' s The record indicates that it is the respondent's policy never to discharge but to lay-off its employees: ' The, respondent's answer alleged ithat the four employees alleged in'the THE 'AMERICAN' I AUNDRY MACHINERY COMPANY' 363 him his wages to date,' and promised to call him when a job was available. Evancho did not hear from Smith. About .a month later. Evancho went-to the plant to see Smith about the possibility of being reemployed. Evancho testified that he opened the conversation by saying hello to Smith-and that the latter thereupon asked why Evancho "had signed a union application card," 10 and that when Evancho explained that he had done, so at Pilaroscio's request and because he-thought it the best thing to do, Smith asked, "What does Pete think, he is going to run the place after he came in here?" He nevertheless promised to ;,peak to Hanley about a job for Evancho. The latter did not thereafter hear from the respondent. Smith testified that both Pilaroscio and Evancho were in the habit of ex- cessive talking in the plant and that he had warned the former not to "gang up" on two occasions about a month before his discharge , and the latter a week before. He also testified that he decided to weed out the less desirable em- ployees in March because the plant was going into production on war orders," and that he therefore chose to dispense with Pilaroscio and Evancho. Pilaros- cio had quit his job on February 26- but was rehired by Smith on March 9, 2 days before he was dismissed. Russell Tubiola testified that on one occasion he was sent by Foreman Harry Smith to find Pilaroscio and found him asleep in the lavatory .12 Tubiola placed this occasion - as the Friday before the discharge of Pilaroscio . Since the record establishes that Pilaroscio was not working at the plant at that time the undersigned does not credit this testimony . In any event, the record fails to show that Tubiola reported this incident to Smith or that the incident played any part in .the discharge of Pilaroscio. Smith testified that he was not aware of the two employees' union member- ship when he dismissed them. It is obvious from Evancho's conversation with Smith upon the occasion of Evancho's seeking reemployment that Smith knew of Evancho's union membership at the time of Evancho's discharge. Imme- diately upon engaging in conversation with Evancho, Smith asked him why he had joined the Union. It is clear that Smith foresaw the purpose of Evancho's visit and intended by his question to indicate that his previous dis- charge was based upon his union membership and further, that such member- ship constituted., an obstacle to favorable action by the respondent on his anticipated application for reinstatement. Accordingly, the undersigned does not credit , Smith's testimony that he was unaware of Evancho 's• union affili- ation at the time of his discharge. complaint to have been discriminatorily discharged were in fact merely "suspended." The respondent's brief, however, refers to the separations of these employees as dis- charges . In view of the fact that the employees were all paid in full as of the date of their discharges and that the respondent at no time made them an offer of reemployment, the undersigned finds that the four employees were in fact discharged. 0 On this occasion Evancho received his pay in full for the period to and including the day of his discharge. Ordinarily employees did not receive their pay until the week following the completion of their work week. - i0 Evancho's testimony concerning this incident was as follows : Q. Then did you ask him a question ; how did the conversation start? A. He started it off. Q. What did he say, again? A. He said "I don't know why you done that." Q.'Done what? A Signed up the. Union card. His testimony as to this incident was uncontradicted , and is credited by the undersigned. 11 Civilian production did not cease until June 1, 1942. Pilaroscio was in the armed forces of the United States and did not testify. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smith stated that Pilaroscio and Evancho were associated in purported ex- cessive conversation in the plant . The undersigned has found that Smith was aware of Evancho's union membership. Under these circumstances , it is un- likely that Smith was not also aware of Pilaroscio 's union membership at the time he discharged him. The undersigned finds that he had such knowledge. It is impossible - to' reconcile Smith 's statement- that he discharged .• Evancho and Pilaroscio for excessive talking in the plant with his failure to mention such conduct to either of them at the time of their discharges. In all of the circumstances revealed by the record, the contradictory, incon- sistent, "and unconvincing testimony of Smith and Tubiola , and the credible testimony of Evancho, the undersigned is convinced that the respondent merely sought to cloak its motive in discharging Pilaroscio and Evancho by obfusca- tory and manufactured excuses, its real reason for doing so being its desire to rid itself of them because of their union affiliation . He so finds" 2. Massare and Alati ' F Edward Massare and Nunzio Alati first worked as yard laborers under Foreman George Smith and were subsequently transferred to the foundry under Foreman Converse . Both received a series of increases in pay from 50 cents per hour to 75 'cents which they werel'earning when' dismissed,,-the last being a 5 cent increase granted them on February 4, 1942. On March 12 Converse gave Massare his pay in full, and according to the latter, said, "I 'am sorry, I have got to let you go . . . I have got orders from [Hanley]." Converse testified that he told Massare that he "would have to give him a vacation " on account of the change-over to war production, and that he did not tell him that his "real" reason ' for letting him go was his ex- cessive talking in the plant because he thought that Massare would apply for work "within a month or so" and "promise to do better ." Converse was not a convincing witness. He testified that the respondent did not give the em- ployees a mid -morning lunch period. Several other witnesses , including Guy Liberatore , who testified for the respondent , testified that it was an established custom in the foundry for the employees to take a short mid-morning lunch period: Converse cannot have been ignorant thereof. The undersigned finds that the conversation took place as testified to by Massare. Alati testified and the undersigned finds that on the same afternoon Foreman Denny told him, whom he paid off in full , "I don't want you to have any hard feelings against me, but I got orders to fire you ." '4 According to Denny, Hanley and he had discussed "what was to be done about conditions in the " The fact that Pilaroscio did not' appear-' and testify' at the hearing is not a fbar to granting him relief under the Act.. The proceeding by the Act is not for adjudication of private rights.-"It has few of the indioia of a private litigation and watches its require- ment for the presence in it of any private party other than the employer charged with an unfair labor practice. The Board acts in a public capacity to give effect to the declared policy of the Act to eliminate and prevent obstructions to interstate commerce by encour- aging collective bargaining-The immediate object of the proceeding is to prevent unfair labor practices which, as reviewed in 5, 7, 8, are practices tending to thwart the declared policy of the Act " National Licorice Company v. N. L. If. B., 309 U. S. 350, 362. If, as in this case, the record sustains the allegations of unlawful discrimination against a discharged employee, his testimony is not a sine qua non of relief under the Act. Matter of Atlanta Flour and Grain Company, Inc., etc, 41 N L R B. 409 14 Denny at first testified that after a conference with Hanley, he paid off Alati and told hum he was through. Subsequently, Denny testified that he told Alati that 'Alati was going to have 2 or 3 weeks' vacation. In view of the contradictions in Denny's testi- mony the undersigned credits the testimony of Alati. THE AMERICAN LAUNDRY, MACHINERY COMPANY 365 shop" and Denny determined to discharge Alati. s Denny admitted that the company's change-over had little to do with the decision. As related above, Massare and Alati, and also, union representatives , there- after unsuccessfully sought reinstatement at the respondent's plant. Foreman George Smith testified that when Massare and Alati were laborers under him they were lazy and unwilling workers. He admitted that he would not retain incompetent employees on his crew , but did not explain why if they were shirkers and soldiered on the job, he retained Massare for almost 4 years and Alati for more than 3.16 Foremen Denny and Converse testified that Massare and Alati talked a great deal in the foundry, particularly during the period just before they were dis- charged. -Various witnesses for the respondent testified to the ; same effect, adding that they also spent too much time in the wash room, took too long for luncheon, reported late, were indifferent, talked "about the wrong things." 14 and were generally disrupting influences in the plant . Records substantiating such alleged breaches of proper conduct were not produced by the respondent nor does the record indicate any specific reprimand by the respondent for them. Lochte, in charge of production, testified respecting Massare's production record for the week before his discharge . Asked by counsel for the respondent whether the record was above or below average, Lochte answered, "Well, for the week it might be below." Lochte testified that production records of Massare's work were kept by the respondent. The respondent produced no other records thereof, however. and no records of production of employees in positions comparable to that of Massare Massare admitted that he engaged in conversations with other employees during working hours but denied that these - conversations interfered with production, in any way . The record es- ' tablishes that the respondent permitted its employees to engage in conversation provided they did not thereby interfere with production. In view of the re- spondent's failure to produce any records demonstrating that Massare's produc- tion contrasted unfavorably with that of other workers or with his own past performance, the undersigned credits Massare's testimony. . As related above, Massare and Alati were the outstanding proponents of the Union , the former having first taken steps in organizing the plant by consulting Cerulli and enlisting the aid of Alati and Pilaroscio to that end, and Alati hav- ing secured a number of union membership applications 3 days before his dis- charge. It is clear, and the undersigned finds, that under the circumstances revealed by the record , the respondent had knowledge of their union affiliation and activity. The record indicates that talking was common in the plant and was not objected to by the respondent if it did not interfere with production. The respondent adduced no evidence that the alleged activities of Massare and Alati were reflected in unfavorable production records. As found above , both Massare and Alati received pay increases over extended periods of employment. Neither was ever warned that his talking in the plant was looked upon with disfavor by the respondent , nor that it would result in disciplinary action Nor was the subject mentioned on the occasion of the discharge of either . As found above, the respondent's supervisors engaged in 15 Denny also testified that Alati was "the last man in [his gang ]," and that this also influenced him in Alati's discharge. On cross-examination by counsel for the Board, how- ever, Denny admitted that he was not sure of the accuracy of this statement. 16 Alati was "layed -off-no work!' for about a year during this period 11 This quotation is from the testimony of Edward Vieira who further testified that he talked "quite a little" also , and added , "I don't work against, the. company I work for." i 366 IYECISIONS OF NATIONAL LABOR RELATIONS' BOARD anti-unionficonduct. ,Upon the whole record the undersigned is convinced and, finds that the respondent did not in fact discharge Massare and Alati for inter- fering with production, but merely used such alleged interference in retrospective justification. thereof, its actual motive for doing so being their union mem- bership and the respondent's determination to drive the Union out of the plant and eliminate its attendant organizational threat. The undersigned finds that the respondent has discriminated in regard to hire and tenure of employment of Pilaroscio, Evancho, Massare, and Alati thereby discouraging membership in the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE I 41 The undersigned finds that the activities of the respondent set forth in Sec- tion III above, occurring in connection with the operations of the respondent described in Section I. above, have a close; "intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in and is engaging in certain unfair labor practices, it will be recommended that it cease and de- sist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent discharged and thereafter refused to reinstate Peter Pilaroscio, Stephen Evancho, Edward Massare, and Nunzio Alati for the reason that they joined a labor organization and engaged in con- certed activities on its behalf. It will therefore be recommended that the re- spondent offer Evancho, Massare, and Alati immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority, and- other rights and privileges. It will be further recommended that the respondent make them 'whole for any loss of pay they may have suffered by reason of its discrimination against them 18 by payment to each of them a sum of money equal to the amount each would normally have earned, as wages' from the date of the respondent's discrimination against him to the date' of the offer of reinstatement, less the net earnings 10 of each during that period. Peter Pilaroscio was inducted into the armed forces of the United States in April, 1942. It will be recommended that the respondent,, upon application by him within forty (40) days of his discharge from said armed forces, offer 18 The respondent adduced evidence that Massare and Alati had obtained other employ-,, ment at higher wages than then received from the respondent since their discharges. Such evidence is irrelevant "to considerations decisive of the question whether reinstatement effectuates the policies of the Act." Matter of Ford Motor Company, 31 N. L. R B. 994. No evidence was introduced as to the other conditions of employment under which Massare and Alati entered upon their new work. The record fails to establish that they received "substantially equivalent employment." Accordingly, the usual remedy recommended as to back pay is unaffected. 19 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 the unlawful discrimination 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 Sesvmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies re- ceived for work performed upon Federal, State, county, municipal , or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. National Labor Relations Board, 311 U. S. 7. , _ THE AMERICAN LAUNDRY.- MACHINERY COMPANY_ 367 Pilaroscio full reinstatement to his former or substantially' equivalent position, without prejudice to his seniority and other rights and privileges. It will be further recommended that the respondent make him whole for any loss of pay he may have suffered. by reason of its discrimination against him by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of the respondent's discrimination against him to the date of his induction, and from the date five .(5) days after his timely application for reinstatement to the date of the respondent's offer there- of, less his net earnings 20 during these periods. Upon the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : , ; ' CONCLUSIONS OF LAW 1. United Electrical, Radio & Machine Workers of America, C. I. 0., is a la- bor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment by Peter Pilaroscio, Stephen Evancho, Edward Massare, and Nunzio Alati, thereby discouraging membership in United Electrical, Radio & Machine Workers of America, C. I. 0., the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. - 3. By interfering with, restraining, and coercing its employees in the-exer- cise of rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor--practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that, the respondent, The American Laundry Machin- ery Company, Rochester, New York, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in United Electrical, Radio & ,Machine Work- (ers-of America, C. I. 0., or any other labor organization of its employees, by discharging,, refusing to reinstate, or in any other manner discriminating in regard to the hire and tenure of employment or any term or condition of em- ployment of its employees ; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for We -purposes of col- lective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Stephen Evancho, Edward Massare, and Nunzio Alati immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges ; upon timely application by Peter Pilaroscio, as set forth in the Section entitled "The Remedy" 20 See footnote 19, supra. 368 1 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD above, offer to him immediate and full reinstatement to his former or substan- tially equivalent position , without prejudice to his seniority and other rights and privileges ; (b) Make whole, in the manner set forth in the Section entitled "The Remedy" above, Peter Pilaroscio, Stephen Evancho, Edward Massare, and Nunzio Alati for any loss of pay they may have suffered , or may hereafter suffer, by reason of the respondent's discrimination again them, by payment to them of a sum of money equal to the amount each would normally have earned as wages but for such discrimination , less the net earnings 21 of each during that period; . (c) Post immediately in conspicuous places , throughout ,its plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating ( 1) that the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraphs 1 (a) and (b) hereof; (2) that it will take the affirmative action set forth in paragraphs 2 (a) and (b) hereof; and ( 3) that the respondent's employees are free to become and remain members of United Electrical , Radio & Machine Workers of America, C. I. 0., and that the respondent will not discriminate against any of its employees because of membership in or activity, on behalf of that organization ; (d) Notify the Regional Director for the Third Region in writing within twenty (20) days of the receipt of this Intermediate Report' what steps the respondent has taken to comply herewith. It is further recommended that unless on or before twenty (20) days from the date of the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply, with the foregoing recommenda- tions, the National Labor Relations Board-issue an order requiring the respond- dent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended-any party may within thirty"'(30)' days from the date of the entry of the order transferring the case to'the' Board, pursuant to Section 32 of Article II of said Rules and Regulations, file" with `the Board, Shoreham Building, Washington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Inter- mediate Report or to any other part of the record or proceeding ( including rulings upon all motions or objections ) as he relies upon , together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within twenty (20) days after the date of the order transferring the case to the Board. Dated August 28, 1942. JOSEF,L. HEkiOEN, Trial Examiner. 21 See footnote 19, supra.