Regal Knitwear Co., Inc.

In the Matter of REGAL KNITWEAR Co., INC. and WHOLESALE & WARIE:- HOUSE WORKERS UNION, LOCAL 65, C. I. O. Case No. 0-2540.Decided May 7, 19.33 DECISION AND ORDER On March 9, 1943, the Trial Examiner issued his Intermediate Report 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 Inter- mediate Report annexed hereto. Thereafter, the respondent filed ex- ceptions to the Intermediate Report and a brief in support of its ex- ceptions. The Board has considered the rulings made•by the Trial Examiner at the hearing and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. Pursuant to notice , a hearing was held before the Board at Wash- ington, D. C., on April 27, 1943, for the purpose of oral argument. The respondent was represented by counsel and participated in the hearing; the Union did not appear. The Board has considered the Intermediate Report, the respondent's exceptions and brief, and the entire record in the case, , and hereby adopts the findings , conclusions, and recommendations of the Trial Examiner, except as noted below. 1. The Trial Exaiiner has found that Arthur Klein was discharged 'by the respondent on June 3, 1942 , because of his union membership and activity, after having been discriminatorily transferred on May 22, 1942, from work as an order picker to more arduous work in.the shipping department . We do not agree. The uncontradicted evi- dence shows that it is customary at the respondent 's plant to assign stock clerks and order pickers to work in the shipping department when necessary ; and we are not convinced by the record that Klein was selected to work in the shipping department for any reason other than that his services were needed there. After working , a day or two in the shipping department, Klein protested against having to 49 N L R B., No. 80. 560 REGAL KNITWEAR CO., INC. 561_ work there. He then, within the period of 1 week; gave the re- spondent two conflicting statements from his doctor concerning the. kind of work he was physically capable of doing. The respondent contends, and its secretary testified, that Klein was discharged be- cause of his production of these convenient and conflicting state-- ments as to his physical capabilities and because the respondent did not believe that his physical condition warranted his continued em- ployment even as an order picker. Under the circumstances, we are of the opinion that the record does not sustain the allegation that Klein's transfer and discharge were due to his union membership. and activities. The complaint will therefore be dismissed as to Klein. 2. The Trial Examiner has found that the respondent, by giving some employees, including Jean Strackman, a winter vacation with pay " and with free use of an automobile furnished by the respondent, and by distributing to its employees complimentary tickets for theatrical performances'giveii on dates when union meetings were usually held,. interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in the Act. There is evidence in the record which- gives rise to the suspicion that the respondent gave Strackman a winter vacation with' pay, after she had already had her usual summer vaca- tion in 1941, in order to induce her to abandon her union activities. However, there is no similar evidence with respect to the other em-- ployees who were also granted winter vacations, and we do not believe. that the record as a whole clearly establishes any improper purpose on the part of the, respondent in giving these winter vacations. The Trial Examiner's findings of interference, restraint, and coercion based on the respondent's doing so is hereby reversed. The theatre tickets distributed by the respondent to its employees are shown by uncon- tradicted evidence to have been obtained by the respondent without cost to it. There is no showing that the tickets were for performances. selected by the respondent because they coincided with the times at which union meetings were to be held and would therefore discourage attendance at such meetings. We find that the record does not sup- port the allegation that the respondent's distribution of theatre tickets constituted interference with its employees' union activities, and the Trial Examiner's finding to the contrary is hereby reversed. ORDER Upon the above findings of fact and 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,. Regal Knitwear Co., Inc., New York City, and its officers, agents, successors, and assigns, shall: -562 DECISIONS OF NATIONAL LABOR. RELATIONS, BOARD 1., Cease and desist from: (a) Discouraging membership in Wholesale & Warehouse Workers Union, Local 65, affiliated with the Coiigres sof Industrial Organiza- tions, or in any other labor organization of its employees, by discharg- ing or refusing to-reiristate any}of its employees, or'in''any manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations,'to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Jean Strackman immediate, and. full'reinst'atement to her former or a substantially equivalent position, without prejudice to her seniority and other rights and privileges ; (b) Make whole Jean Strackman for any loss of pay she has suffered because of the respondent's discrimination against her, by payment to her of a sum of money equal to the amount which she would normally have earned as wages during the period from the date of her discrimi- natory discharge to the date of the respondent's offer of reinstatement, less her net earnings during that period; (c) Immediately post in conspicuous places in and about its plant in New York City, 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 ordered to cease and desist. in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in'paragraphs 2 (a) and (h) of this Order; and (3) that the respondent's employees are free to ' become and remain members of Wholesale & Warehouse Workers Union, Local 65, affiliated with the Congress of Industrial Organizations, and that the respondent will not discriminate against any employee. because of membership in, or activity on behalf of, that organization; (d) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the re- spondent has taken to comply herewith. AND„IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges that the respondent discriminated against Arthur Klein. CHAIRMAN MILLIs took no part in the consideration of the above Decision and Order. ' J REGAL KNITWEAR CO., INC. INTERMEDIATE REPORT 563 Mr. Cyril TV. O'Gorman, for the Board. Conrad & Smith, by Mr. -Williarn, W. Conrad, of New York, N. Y., for the respondent. - STATEMENT OF THE CASE Upon a seventh amended charge duly filed by the Wholesale & Warehouse Workers Union, Local 65, affiliated with the Congress of Industrial Organiza- tions, herein called the Union, the National Labor Relations- Board, herein called the Board, by its Regional Director for the Second Region (New, York, New York), issued its complaint dated January 19, 1943, against Regal Knitwear Co., Inc, of New York, New York, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices 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 com- plaint, accompanied by notices of hearing, were duly served upon the respondent and the Union. , With respect to the unfair labor practices, the complaint as amended at the hearing,' alleged in substance: (1) that the respondent on or about March 20, 1942, discharged Jean Strackman, and on or about May 22, 1942, assigned 'Arthur Klein to more arduous or less agreeable work, and discharged him on or about June 3, 19 ' 42, for the reason that these employees had joined or assisted the Union, or had engaged in other concerted activities for the purposes of collective bargaining, or other mutual aid and protection; and' (2) that from on or about June 24, 1941, to the date of the complaint, the respondent vilified, disparaged, and expressed disapproval of the Union ; interrogated its employees concerning their union affiliations ; and urged, persuaded, threatened, and warned its employees to refrain from assisting, becoming members of, or remaining mem- bers of the Union. On January 29, 1943, the respondent filed its answer denying, among other things, that it had engaged in the unfair labor practices alleged., Pursuant to notice, a hearing was held at New York, New York, on February 4 and 5, 1943, before Peter F. Ward, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, and each participated, in the hearing Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. After both parties had rested, the undersigned granted, without objection, the motion of counsel for the Board to conform the pleadings to the proof with respect to names, dates, and other minor variances. Oral argument, in which the Board and the respondent participated, was thereafter had on the record. While the parties were advised of their right to file briefs with the undersigned, no briefs were filed Upon the entire record thus made, and from his observation of the wit- nesses, the undersigned makes,- in addition to the above; the following : 1 The complaint was amended on motion of counsel for the Board, without objection, by striking the word "manufacture" from paragraph 2, thereof 531647-43-vol 49-37 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '• FINDINGS 'OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a New York corporation engaged in the sale and distribu- tion of knit goods. The essential raw materials purchased and used by the respondent in the operation of its business are yarn and cottons During the six months period prior 'to February 1, 1943, the respondent shipped approxi- mately $2,300,000 worth of finished products to points outside the State of New York ; such shipments represented approximately 84 percent of the respondent's total sales made during this period. Approximately 75 percent of the materials received by the respondent at its New York -plant for sale and distribution are received from points outside the State of New York The respondent admits that it is engaged in interstate commerce within the meaning of the Act H. THE ORGANIZATION INVOLVED Wholesale & Warehouse Workers Union, Local 65, affiliated with the Con- gress, of Industrial Organizations, is a labor organization, admitting to member- ship certain employees of the respondent. HI. THE UNFAIR LABOR PRACTICES A. The discrimination against Jean Stiacknian and Arthur Kletn; interference, restraint, and coercion The record discloses that the Union began an organizational campaign at the respondent's plant about' 1938, which persisted until July or August 1041, at which time the campaign became more intensified, and so continued until the present. Jean Strackman, an employee for some 15 years, testified that she joined the Union in the latter part of July 1941,2 on her return from a vacation. Strack- man further testified that during August 1941, Julius Israel, the respondent's secretary, called Strackman into his office and asked her if she had -signed, a union card ; she replied that she had In this connection Strackman testified : Q' Tell us what was said by both Mr Israel and yourself at that time? A. I told him I had signed a union card, and he asked me why. So I said, well, people want raises, increases in their salaries and vacations, two- week vacations and sick benefit. He says, well, I could give you all that. I says, well, you haven't been giving it. So he says, well, I will. What do you want a union for? And then he sat down and he says give me the names of the people that have signed up. And he says, you won't feel sorry, you'll have a job here as long as you like to work here. So I told him I didn't do those things. And he insisted that I give him the names, and I refused . . . - During this same meeting, according to Strackman, Israel asked her to swear on the grave of his deceased father that she would not "join up" with the ' Strackman also testified that she signed a union card In 1938. However, she was again asked to sign a card in 1941, and did so. REGAL KNITWEAR CO., INC. 565 Union, and that she would try "to stop" some of the girl employees who had, signed union cards. Strackman's testimony is credited by the undersigned' Sometime subsequent to the above conversation, Strackman, having been informed by the Union that one of the respondent's former women employees had been discharged because of union activities, talked to this woman, and was advised by her that such was the fact. Strackman then went to Ti,4ael a n d accused him of discharging the former employee in question because of union activities. Israel denied the accusation, and stated that lie knew where the woman was then employed He had Strackman accompany hint into the office, telephoned the former employee, and asked her if she was in fact working, and if she was satisfied. The woman replied in the affirmative. Israel held the telephone receiver to Strackman's ear so that she could hear the responses. Israel then asked, "Didn't you just hear what she said?" to which Strackman replied, "What she told me the day before is altogether different." Israel then became very angry and seized Strackman by the throat, with the result that she became hysterical and wept. Israel thereupon sought to console Strackman, and in the process kissed her. Strackman left the office and was approached by the respondent's treasurer, Bernot, while she was still crying. He asked her if she wished to go home. She, however, elected to remain at work.' During December 1941, Israel directed employee Sylvia Abrams to make a list of names of employees who wished to go to Miami Beach, Florida, for a winter vacation. , Strackman was approached by Abrams and informed -the latter that she could not afford such a trip. Israel then conversed with Strack- man and told her that he was furnishing "a car, two weeks' pay and that he would send money to" a hotel in Miami Beach. He also stated that the girls could afford such it vacation because "it wasn't very expensive in December." Strackman, in company with Abrams, employees Herman Bogad and wife, acid Leo Pfeffer, made the trip to Florida in an automobile supplied by the re- spondent. Upon their return, a group of other employees were furnished the car which took them to a vacation place in the mountains. These vacations were "paid." At Christmas time in 1941, the respondent gave Strackman a $25 government bond, whereas in previous years it usually presented her with six pairs of hose. After the advent of the Union at the respondent's plant in 1938, Israel made it a, practice to present employees with complimentary' tickets for 'theatrical performances, and,, particularly for Saturday afternoon matinees given,when the Union held certain of its meetings. This practice had never been indulged in prior to the coming of the Union.' Strackman attended union meetings and asked a number of employees to sign cards. Notwithstanding the winter vacation, the gifts of theatre tickets, and 3Israel generally denied this and other portions of Stracknian's testirnoni Stiackaian was a credible witness. She impressed the undersigned as desirous of relating the truth, and was forthright in her manner . Israel's testimony relating to certain niatenal matters is vague and unconvincing, and where it contradicts Strackman's, the latter 's is credited by the undersigned . An example of the unconvincing nature of Israel's testimony is his statement that Strackman was an undesirable employee because she started "taking airs on," and dressed inappropriately for iwoik which "might soil the clothes " S These, findings are based upon Strackman's testnnony Israel, in effect admitted these facts, but testified that Strackman wept at ' the replies made by the former eniplo5ee, and denied that be assaulted Strackman His testimony, insofar as it is at variance with Strackman's, is not credited by the undersigned 5 These findings -are based upon the testimony of Strackman as corroborated by Arthur Klein, and also Emanuel Blaum, who is presently employed by the respondent lsi ael admitted having given the respondent's employees threatie tickets, and testified that the practice started "two or more years ago." I 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Israel's efforts -to dissuade her from her union activity, Strackman continued to attend union meetings, until March 20, 1942, when Israel asked her to meet him after working hours. Strackman did so, and testified as follows concerning the events which then transpired : Q All right, tell us what happened at that time? A. He said, I don't know what I'm going to do with you. I says, well, I don't understand. He says, well, I expect I'll be leaving very soon on a vacation and I can't have you around, I'm afraid to trust you I said, well, I don't understand what you mean by that. r He says, well, you know what's been going on all along about a union, he says I have a list here, he says, of names of people that have signed up, and I expect to get rid of quite a few of these people. And he did have a list with the names on them. So I says to him, I don't, think that is a very wise thing to do And he says, oh, I don't know about that. He says, I'm giving you two weeks pay and any time you need any money if you don't get a job in the near future you can come up and ask me for it' I told him I didn't accept charity. * * * * * * * Q (By Mr. O'Gorman.) Was there anything said in that conversation about unions? A. So I-asked him if I was being fired for union activities. And he says, I'm not firing you, I'm just telling you to go I says, well, that's being fired ; if you're not firing me I'm coming back tomorrow. He says, o k , then you're fired. -He was very angry. So he -says to me, I'm really sorry to let you go, I really need you, but I can't chance it. And- Q. Did you,ask him what he meant by chancing, it? A. Yes, he said that he was afraid to have me around because I would- ,he says, people working in a place too long get ideas , and that he realized 0 that I had a'few ideas that didn't fit in with his. So-= Q. 'Did he mention what those ideas were? A: Well, he did mention union once: He said he had a list of people belonging to the union ' Q. Did you see that list? A. I did see the list. Q. Can you tell us any of the names that appeared on that list? A Well, I believe he had the name of Herman Bogad, and he did have Leo Pfeffer,' and he had the-my name was on it, and Arthur Klein.' That's about all I did see. Israel's version of this occurrence is different. His testimony is to the effect that he told Strackman he did not think "this place was suited for her any more," $ The evidence indicates that the woman whose discharge vas discussed by"Strackman and Israel had been an active union member , was induced to leave her employment with the respondent, and was placed elsewhere in employment by Israel for about one week, after which she was discharged. 7 As found above Herman Bogad and Leo Pfeffer were among those given a paid vacation to Miami Beach, Florida 8 As hereafter found the respondent discriminated against Klein because of his union membership and activities. REGAL KNITWEAR CO., INC. ' 567 and he advised her "it would be better for her to, get another position." Israel contended that in the last two of her fifteen years of employment by the iespofident' Strackman. "fooled around" and talked too much with the respond- ent's male employees, and dressed in a manner which "disrupted" their work. These contentions are uncorroborated by testimony of any of the male employees in question, or any other person. Strackman received several wage increases during her employment. ' Moreover, consistent with Strackman's testimony, Israel admitted that he left for Florida the day after Strackman's discharge. In view of Israel's antipathy to the Union as above related, his patently weak conten- tions,10 and the fact that he left for his vacation immediately after he discharged Strackman, the undersigned is convinced and finds that Strackman's testimony relating to the conversation which took place on the day of her discharge reflects the true facts. It is apparent that Strackman was discharged because of her union membership and activities. Prior to February 1942, Arthur Klein had been unemployed for a number of days Early in February 1942, one Miss Brown, formerly employed as a stenographer by the respondent, gave Klein a letter of introduction to Alex Roff, the respondent's office and credit manager, in which she asked Roff to "do something" for Klein. Brown also telephoned Roff in Klein's behalf and told him that Klein "was out of work . . . and he has a wife, his wife is .. . going to become a mother." Roff introduced Klein to Israel and according to Klein's testimony which the undersigned credits, Israel at the outset of his interview with Klein stated, "before I hire you, . . . suppose there was some union activity going on, would you become part of it?" Klein replied that if a majority desired a union, he `would want a union." Israel then asked Klein ". . . if the majority went off and jumped off a building, would you follow suit?" Klein responded that "there was no analogy' there."" During this discussion Klein told Israel that he had had a hernia at one time, and would not be able to do "hard work." Israel did not disclose the type of work expected of Klein. He did, however, assure Klein that it would not be "heavy work."" Israel then hired Klein at a wage of $20 per week and put him to work as a stock clerk. About March 1, 1942, Klein joined the Union and became active in its organiza- tional efforts He worked as a stock clerk for a time, was then "promoted" to the job of order picker, and on or about April 1 he received an increase in pay of $2 per week. Subsequently Klein met Israel in the plant and thanked him for the raise in pay. Israel then took Klein aside and told him in substance, that he had lost faith in "somebody" with respect to "being in,the union." Klein responded that if the implication was that he was "in the union," this was the, fact Israel then called Klein's attention to the fact that the latter was a married man who had "coining responsibilities," was "going to become a father," and would need a friend and some financial aid. Israel also stated that he was "the one" to give financial aid to Klein. He added, "I've always been good to those who have been true and faithful to me. Those who, have stuck with me need never worry." Israel also suggested that he might set Klein up in business, 'These years coincide with those during which the Union attempted to organize the employees of the respondent. 1° with reference to Strackman's mode of attire, it is undisputed that while woi king she at all tunes wore a "smock' which completely coveied hei dress 11 This portion of Klein 's testimony is uncontradicted 12 Israel denied that at this time Klein informed him that he had had a hernia. Klein was straightfoi ward in his demeanor , and consistent in his testimony . As above indicated the undersigned accord's little weight to Israel 's uncorroborated testimony. 568 DECISIONS Of NATIONAL LABOR RELATI'O''N BOARD supply him with merchandise , and give him any needed financial assistance. Israel asked Klein if there was anything he could do or say that would "dis- courage" Klein from union membership, and Klein replied in the negative 13 On May 22, 1942, Klein had occasion to go to the shipping room where, as the evidence shows, the work performed was more arduous than the work done by stock clerks or order pickers. When he arrived there Israel, who was present, ordered him io remain and help in the shipping room. Klein worked in the shipping room the balance of that day. On the next day Klein reported to the order picking department, where he was then working, and was told by the foreman of that department that pursuant to Israel's orders he was to work in the shipping room. Klein worked in the shipping room that day. The following Monday, May 25, Klein went to the sales room where in the presence of Bob Goldberg '14 an employee, and others, he reminded Israel of the fact that he had had a hernia, would be unable to work in the shipping department, and that if Israel persisted in making him work in the shipping department Klein would deem it a 'discriminatory action on Israel's part and report it to the National Labor Relations Board Israel replied that Klein could do as he pleased, but as far as-his work was concerned he was to do what he was "instructed to do." Since Klein had advised Israel at the time of his employment' that, due to a hernia operation had in the past, he would be unable to perform "heavy work;" the undersigned is-convinced, under the circumstances herein set forth, that Klein was on May 22 transferred to the shipping room and thereafter ordered to remain there because of his union membership and activities. Klein then' went to a doctor, complained that he had strained himself in the shipping room, and procured a certificate from him.36 He later went to the plant, talked with Office Manager Roff, and gave the doctor's certificate to him. Roff said that Klein looked "bad" and advised him to go home and rest for a few days. Klein kept in touch with Roff on the telephone, and on or about May 28 returned to the plant and talked with Roff, for he had been unable to' contact Israel since the meeting in the show room above referred to. Klein told Roff that he' was ready to go to work. Roff stated that the respondent had received advices from its insurance agents that Klein could not be employed in the respondent's shipping department. Klein reminded Roff that he was an order picker, but that he would secure from his physician a certificate, stating that he was capable of performing "any type of work." Klein was reexamined on June 1, and received such a certificate from his doctor.1' On about this date he presented this certificate to Roff and stated. that he was willing to do any type of work. • Klein asked Roff "to take it up" 13 The 'above findings are all based upon Klein's testimony Israel testified in substance that he merely told Klein that he was glad that Klein received the raise, and that he stated "I hope you'll be deserving of it and continue your good work." Israel did not categorically deny Klein's testimony concerning the, former's attempt on this occasion to induce Klein to abondon the Union. 1 14 Goldberg, although not shown to be unavailable, was not called as a witness. MAY 25, 1942. 15 To Whom it May Concern: Arthur Klein complains of pain in the right groin He has had a hernia of the right side which was repaired several years ago. I advise that he refrain from work which entails lifting of weights in order to prevent recurrence of hernia. (S) Louis BASS, M. D. JUNe 1, 1942. 16 To Whom it May Concern: I have reexamined Arthur Klein Ile no longer complains of any pain in the groin. I find his condition iery satisfactory and he may ieturn to any type of work. (S) Louis BASS, M. D. REGAL KNITWEAR CO., INC. 569 with Israel, and Roff agreed to do so and let Klein know what transpired. On June 3 Klein met Roff and was advised by him that Israel told him to tell Klein he was "definitely through." 17 Israel contended that Klein's employment was terminated because Klein produced two inconsistent statements from his physician, and was accordingly not "the type" to be employed by the respondent. He further stated that Klein was physically incapable of working, in view of his complaint. Con- sidering the respondent's strong opposition to the Union, the physician's final opinion that Klein was able to perform all types of work, and the earlier dis- crimination against Klein, the undersigned is convinced and finds that the respondent's contentions are without merit, and were advanced as pretexts for Klein's discharge; the true reasons therefor being his union membership and activities. Ralph Piccolo, an employee of 16 years standing, and a receiving clerk for the respondent, testified that during July or August 1942, Israel spoke to him concerning his membership in the Union. In this connection Piccolo's uncon- tradicted and credited testimony is as follows : Q. (By Mr. O'Gorman.) Will you repeat that conversation to us, if you will? 'A. He asked me if I was in the union ; I told him I was. He says, "What are you going to do about it?" I says, "Nothing, I am going to stay in the union." That was all. Piccolo's mother does "contract" work for the respondent. She "takes work out," and "hands it out to other people." On the occasion of the above con- versation with Piccolo; Israel threatened to take the matter up with Piccolo's mother, "but he never went that far." The undersigned finds-that the respondent, by the acts and statements of Israel above related, from on or about July 1941, to date, vilified, disparaged, and expressed disapproval of the Union ; interrogated its employees concerning their union affiliations ; urged, persuaded, threatened, and warned its employees to refrain from assisting, becoming members of, or remaining members of the Union, and thus interfered with, restrained, and coerced, and is interfering with, restraining, and coercing its employees in the exercise of the rights guaran- teed them in Section 7 of the Act. From the above and the entire record, the undersigned is convinced and finds that the respondent discharged Jean Strackman on March 20, 1942, assigned Arthur Klein to more difficult work on May 22, 1942; and on June 3, 1942, dis- charged him, for the reason that these employees were members of the Union and had engaged in union and concerted activities, and the respondent thus 'discriminated in regard to their hire and tenure of employment, thereby dis- couraging membership in a labor organization ; by such discrimination the respondent has interfered with, restrained, and coerced and is interfering with. restraining, and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 17 These findings are based upon Klein's testimony. Roff's version of these events is somewhat at odds with Klein's, especially as to chronology. Roff testified that Klein in- sisted that he would not work in the shipping department; that after receiving the first certificate he conferred with Israel about the matter who said he'd "see about it" ; that Israel never advised him definitely as to Klein's status ; and that he did not tell Klein he was "through". Yet Israel admitted that he told Roff that Klein was discharged and that Roff received instructions from him to advise Klein to this effect . In the circumstances Roll's testimony is not credited by the undersigned. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The undersigned finds that the activities of the' respondent set forth in Section III above, occuring in connection with the operations of the respond- ent described 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The undersigned has found that the respondent discriminated in regard to the hire and tenure of employment of Jean Strackman and Arthur Klein, thereby discouraging membership in the Union. In order to effectuate the policies of the Act, it is recommended below that the respondent offer to Jean Strackman and Arthur Klein immediate and full reinstatement to their former or substantially equivalent positions ; without prejudice to their seniority or other rights and privileges ; and that it make them whole for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equivalent to that which each normally would have earned as wages from the date of discrimination, I. e., March 20, 1942, In the case of Strackman, and May 22, 1942, in the case of Klein, to the date of the offer of reinstatement, less the net earnings 18 of each during said periods. Upon the basis of the above findings pf fact, and upon the entire record in . the case, the undersigned makes the following: CONCLUSIONS OF LAW 1 Wholesale' & Warehouse Workers Union, Local 65, affiliated with the Con- gress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The respondent, by discriminating in regard to the hire and tenure of em- ployment of Jean Strackman and Arthur Klein, thereby discouraging member- ship in a' labor organization, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. The respondent, by interfering with, restraining, and coercing its employ- ees in the exercise of the rights guaranteed them 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. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 ( 6) and (7), of the Act. iS "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 shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S.'7. , f REGAL KNITWEAR CO., INC. 571 RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, Regal Knitwear Co., Inc., and its officers, agents, successors, and assigns shall: 1. Cease and desist from (a) Discouraging membership in Wholesale & Warehouse Workers Union, Local 65, affiliated with the Congress of Industrial Organizations, or 'any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in-any other way discriminating in regard to their hire and tenure of employment, or any term or condition of their employment ; (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, or to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Jean Strackman and Arthur Klein immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) 'Make whole the said Jean Strackman and Arthur Klein for any loss of pay they may have suffered by reason of the discrimination against them, by - payment to each of them of a sum of money equal to that which each would nor- mally have earned as wages during the period from the date of discrimination, I. e. March 20, 1942 as to Strackman, 'and May 22, 1942, as to Klein, to the date of the offer of reinstatement, less the net earnings,"' of, each during said periods ; (c) Immediately post in conspicuous places in and about its plant in New York, New York, 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) of these recommendations; (2) that it will take the affirmative action set forth in paragraphs 2 (a) and (b) of these recommendations; and (3) that respondent's employees are free to become or remain members of Wholesale & Warehouse Workers Union, Local 65, affiliated with the Congress of Industrial Oorganizations, and that the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization; (d) Notify the Regional Director for the Second Region in writing within ten (10) days from the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies said Regional Director in writing that it has complied with the foregoing recommendation, the National Labor Relations Board issue an order requiring the respondent 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, effective October 28, 1942-any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article 19 See footnote 18, supra.` 572 DECISIONS OF NATIONAL LABOR R-MATION'S BOAIRD II of said Rules and Regulations , file with the Board, Shoreham Building, Wash- ington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as it 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 per- mission to argue orally before the Board , request therefor must be made in writ- ing to the Board within ten (10 ) days from the date of the order transferring the case to the Board. PFrER F. WARn, Trial Examiner. Dated March 9, 1943.