The Electric City Dyeing Co.

In the Matter of THE ELECTRIC CITY DYEING CO., A CORPORATION AND FRED L . NUTTALL AND CATHERINE A. NUTTALL, CO-PARTNERS, DOING BUSINESS AS THE ELECTRIC CITY DYEING COMPANY and LOCAL UNION No. 164 OF THE INTERNATIONAL ASSOCIATION- .OF CUUANING AND DYE HOUSEWORK'ER6,AFFH;IATEDAW4TH THEw1'MERI6AN FEDERATION OF LABOR Case No. 4-C-1624.-Decided September 22,194 8 DECISION AND ORDER On July 9, 1947, Trial Examiner A. Bruce Hunt issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices,' and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this proceeding to a three-man panel consisting of the undersigned Board Members.* The Board has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed.2 The Board has considered the Intermediate Report, 'Those provisions of Section 8 (1) and ( 3) of the National Labor Relations Act, which the Trial Examiner found were violated , are continued in Section S (a) (1) and (3) of the Act, as amended 'Houston , Murdock, and Gray 2 The Respondents except to the Trial Examiner 's finding that they had full opportunity to be heard and introduce evidence , as well as to cross-examine witnesses In this connec- tion , they rely on the following : ( a) Catherine Nuttall, part owner of The Electric City Dyeing Company, was ill and unable to appear to testify at the hearing. ( b) Bernard Czankner and Leroy Sims, two of the discharged employees , did not testify at the hearing; and (c ) Joseph Downes and James McNulty , union representatives , were not called by the Board to' 'testify as witnesses With respect to *(a) the record shows that the Respondents indicated their willingness to proceed in the absence of Catherine Nuttall until the con- clusion of the Board's case, that they failed thereafter to raise the issue although provision. was made therefor , and that, at no time , did they request that depositions be taken More- 79 N. L. R. B., No 109. 872 THE ELECTRIC CITY DYEING COMPANY 873 the exceptions and supporting brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial examiner, with the exceptions, modifications, and additions noted below : 1. We agree with the Trial Examiner that the Respondents violated Section 8 (1) of the Act (a) by conduct of President Nuttall and Superintendent Heilig, and rank-and-file employee Bensing at their behest, constituting surveillance of the union organizational meeting on April 23, 1946; (b) by Nuttall's speech to the day-shift employees on April 23, 1946, before the union organizational meeting, and by a .similar speech to the night shift, shortly after the meeting, insofar as the Respondents made promises of benefit calculated to induce the Respondents' employees to refrain from organizational activities, and embodied a veiled threat of reprisal should the Union succeed in organizing the plant; 3 and (c) by their letter of April 27, 1946, mailed to the striking employees, advising them that failure to report to work by the morning of May 1, 1946, would result in termination ,of employment. 2. The Trial Examiner found that the Respondents had discrimina- torily°disc°ha'rged nine employees in-violation of Section 8 (3) of 'the Act. We agree with the Trial Examiner's findings with regard to the discharge of Helen Gilasevitch, Anthony Marciano, Leo Kelly, George Magakis, John Morelli, Flory Morelli, and Bernard Czankner. We do not find, however, that Leroy Sims and Frank McAndrew were unlawfully discharged. The Respondents contend that in each instance the discharge re- sulted.from incompetent and defective work by the employee involved, on garments sent for processing by Jacobson, a jobber of dye work. This contention must be appraised against the following back- ground : The record shows that the Respondents experienced a great increase in business beginning in the latter part of 1945 and continuing through April 25, 1946, the date of the discharge. The increase in business was accompanied by a rise in the number of complaints from -over, Fred Nuttall was the leading participant in the events in controversy, and these is no showing that the Respondents' version of these events was not adequately presented by him As to (b) testimony free from hearsay as to the activities of Czanker and Sims, who could not be located, was furnished by witnesses for both parties. As to (c), the Respondents could have called Downes and McNulty had they so desired. For these reasons, we find the Respondents' exceptions to be without merit. J In our opinion, the reprisal may be readily implied from these closing words of the speech : "It is an act of the greatest ingratitude to go over the head of your management and take your problem to an outsider to whom you will pay a tribute from your weekly pay. We urge each one of you to consider very carefully before you give this proposal any encouragement by your attendance at this meeting and remember that there is much more to be gained from friendly management than there is from one whose hand may be forced unfairly in this manner " Member Gray, however, does not agree that this state- Went constitutes a threat of 'economic reprisal, and dissents from this finding 874 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD dissatisfied customers, including Jacobson. Revealing on the-quest tion of why the Respondents were experiencing these difficulties in maintaining a.satisfactory standard of production, is Nuttall's letter to Jacobson of April 3, 1946. In this letter, Nuttall wrote in reply to Jacobson's letter of March 30, that the Respondents were confronted with "the toughest period" in their *experience, "in the midst of a great upheaval," and that it might require "several months to get straightened out." Nuttall referred to the recent increase in produc- tion, which "has entailed many changes, additions to personnel, equip- ment, structural changes in the plant and offices and a great deal of absolute congestion. I am still short of equipment and my washer, ordered last May, is scheduled for delivery during the next month sometime. I am making attempts to get a man for quality control in the dyehouse to see that things in this respect run alright. In the meantime, I have to be primarily satisfied with production: I am using products in the rinses to clear the excess dye, Dyeset to set the colors in reds, greens, cotton colors, etc., and have increased my water supply to a 4-inch line. While there is help available, there is a terrific turn-over and a very definite problem in handling them. These are some of the things that have to be contended with and which do affect the proper production." These facts demonstrate, therefore, that production and personnel difficulties existed on a plant-wide scale, and affected dye work on the garments of all the Respondents' customers. Significant, too, in determining the validity of the Respondents' defense are the following : (a) although the Respondents , alleged that they discharged only those employees who "had the exclusive ju- risdiction and responsibility of the work of Jacobson . . .," four of the discharged employees, Kelly, Magakis, Marciano, and Sims, worked on the garments of all the Respondents' customers indiscriminately and without separation of Jacobson's shipment; (b) 3 employees who worked exclusively on the Jacobson ganherrts; the coder aiid'the pinner at the "Jacobson table," and Ethel Jenkins, were not discharged; (c) although the Respondents alleged that their chief concern was with the defective handling of Jacobson's work, they were unable to state the proportion of Jacobson's complaints to the number of complaints received from the other customers; (d) the flow of work in the Re- spondents' operations was such that it was difficult to trace errors on Jacobson's garments to any one individual, with the exception of the examiner, Flory Morelli; 4 (e) although the Respondents admitted that 4 According to the Respondents ' plant-production records. Flory Morelli, the examiner of Jacobson's garments, was rejecting about half as many garments as were being rejected by the examiner of the other customers ' garments . From these figures, the Respondents argue that Morelli was inefficient . The Respondents' data and the conclusions they seek THE ELECTRIC CITY DYEING COMPANY 875 dye work in general was not being performed in an efficient manner, they chose to discharge only 2 of their 33 dyers, Kelly s and Magakis, who were acknowledged by the Respondents to be their most skilled and experienced rank-and-file dyers; (f) although Jacobson's com- plaints were increasing in number as far back as January 1946, the Respondents did not discharge employees for incompetency until April 25, 1946, about 2 days after they had learned the identity of those em- ployees who were engaging in union activities; and (g) although Nut- tall testified that he had not had "very much contact" with any of the employees individually, he did not ask for Heilig's opinion with re- gard to the discharges, but told him, according to the uncontradicted testimony of Heilig, that the employees "were talking more about unions than they were about paying attention to the 'actual work," and that, he, Nuttall, `.`would bring to a head . . . whatever was fer- menting in the people's minds, union or whatever it was." Under all the circumstances and upon a consideration of the entire record, we find that the Respondents discharged Gilasevitch, Marciano, Kelly, Magakis, John Morelli, Flory Morelli, and Czankner on April 25, 1946, not because of the calibre of their work but because of their activities on behalf of the unions We find further that by said dis- charges, the Respondents discriminated with respect to the hire and tenure of employment of these employees in violation of the Act.' . to draw therefrom are not persuasive No reason is given as to the failure of the Respond- ents to calculate the percentage of rejects before the night of the decision to discharge the- 9 employees , although Jacobson 's complaints had been increasing in number for some time, and the Respondents had the data from which to make such calculations as early as March 15 In the absence of evidence that Jacobson's work constituted a representative sampling of the whole of the Respondents ' business, it is equally permissible from a statistical view to draw the inference that the work on Jacobson 's garments was being performed in a more efficient manner than on the garments of the other customers . Moreover, the record shows that Jacobson 's work was largely that of basic dyeing which is stated to be a simpler -operation with more satisfactory results than that of fancy dyeing. 5In this connection, we place no reliance on the Trial Examiner's finding that Jacob- son's employment of Kelly some time after his discharge , evidenced a recognition of prior satisfactory work performance We find , as Jacobson testified, that due to a labor shortage -thd`latter was"compelled to hire 'anyone'he Could- obtain to work' in his new plant. G During the course of a conversation between Heilig, Nuttall, and Bensing following the surveillance of the union meeting, a remark was made that the employees "had joined up in the Union , and it would not be a good idea to fire anyone at that particular time" The Trial Examiner found that one of the three individuals , Nuttall, Heilig, or Bensing, made this remark . The Respondents except to this finding on the ground that "although the remark is not attributable to any one person, and may have been uttered by Bensing, who had no administrative authority, the Examiner gave full weight and authority of the statement to Nuttall . .. " While it is true that the record does not Indicate which, individual made the remark , it is reasonable to infer that Bensing, who had no administra- tive authority , would not have so commented , and that the remark in question was made either by Nuttall or Heilig. We so find We do not adopt that part of the Trial Examiner's findings which states : "To some extent -Mfhaps , i'n the'"institiices'`of these fe`w` erii,loyees,• the "respondents may have been motivated also by legal considerations in discharging them . . The discharge of Gilasevitch , Marciano, Kelly, Magakis, John Morelli, Flory Morelli , and Czankner is hereby found to have been motivated entirely by anti -union considerations in violation of section 8 (3) of the Act. :876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. We do not agree with the Trial Examiner's conclusion that the Respondents discriminatorily discharged Sims and McAndrew. While we regard as suspicious the fact that these two employees were discharged the same day as the seven already found to have been discriminatorily discharged, we consider as crucial the evidence that they, unlike the other seven, did not attend the union meeting on April .23, 1946, 2 days before their dismissal. Inasmuch as the record estab- lishes that the Respondents acquired knowledge of union niernbership ,on the part of the seven dischargees only through surveillance of that meeting, we are unable to infer, as did the Trial Examiner, that as to the discharge of Sims and McAndrew, the Respondents were also moti- vated by anti-union considerations. Accordingly, while the matter is not entirely free from doubt, we shall dismiss the allegations in the .complaint with respect to Sims and McAndrew. THE, REMEDY Having found that the Respondents have engaged in unfair labor -practices, we shall order them to cease and desist therefrom and take certain affirmative action which we find necessary to effectuate the policies of the Act, as amended. The record indicates that there is a likelihood that Bernard Czank- ner was, at the time of the hearing, either in the armed services or the merchant marine. The Trial Examiner, in his recommended remedy as to Czankner, makes no reference to this circumstance. We ;shall accommodate the remedy to this set of facts, should they appear .8 We shall provide, in such eventuality, that upon application by Ber- nard Czankner within ninety (90) days after his discharge from the Armed Forces of the United States, or within 90 days after his with- drawal from the merchant marine as evidence by a certificate of sub- •stantially continuous service, the Respondents shall offer him imme- diate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privi- leges. The Respondents shall make whole Bernard Czankner for any loss of pay he may have suffered by reason of the Respondents' dis- crimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages during the pe- riods : (1) Between the date of his discharge, April 26, 1946, and the date of his enlistment in the Armed Forces of the United States, or entry in the merchant marine; and (2) between a date 5 days after 8 Counsel for the Board stated he "undeistood" that Czanknei was in the armed services or the merchant marine at the time of the hearing However, in the event that Czankner is found not to have been thus engaged , the back-par and reinstatement provisions set forth in Section 2 (a) and ( c) of our order shall apply THE ELECTRIC CITY DYEING COMPANY 877 Czankner 's timely application for reinstatement and` the date of the offer-of-reiistatement, less his net earnings during those periods. The provisions of our Remedy with respect to the payment of back pay to Czankner by the Respondents shall be taken to mean that the Re- spondents shall pay immediately to Czankner that portion of the net back pay accumulated between the date of the discrimination and the date on which Czankner entered the Armed Forces of the-United States or the merchant marine, as the case may be." If Czankner has been discharged from the Armed Forces or has withdrawn from the mer- chant marine since the time of the hearing, we shall order the Re- spondents to offer him immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority and other rights and privileges . In this connection , we shall also order that Czankner be paid the amount which he normally would have eaTnedfas,*ages during the periods from the date of his discharge by the Reslondents to the date upon which he entered the Armed Forces or the merchant marine, and from the date of his discharge from the Armed Forces or withdrawal from the merchant marine to the date of the; Respondents' reinstatement , offer, less his net earnings during these periods.70 The Trial Examiner found that the Respondents violated Section 8 (1) of the Act by surveillance of the union meeting, and by threats of reprisal and promise of benefit to employees . However, his recom- mended order did not contain any provision directed particularly at such violations. We are of the opinion, upon the entire record, that the commission in the future of such acts of interference and of other unfair labor practices ma ybe anticipated from the Respondents' con- duct in the past." We shall therefore order that the Respondents cease and desist from such conduct, and from in any other manner infringing upon the rights guaranteed to their employees in Section 7 of the Act. ORDER Upon the entirexecord in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, The Electric City Dyeing Company, a corporation, and Fred L. Nuttall and Catherine Nuttall, Co-partners doing business as The Electric City Dyeing Company, Scranton, Pennsylvania, and their agents, suc- cessors, and assigns shall: Matter_of Rrown'sPie d-Lumber Company. 66'N- L- R B 637. Matter of Cannon Electric Development Company, 71 N. L. R. B 1059. " See N L. R B. v. Express Publishing Company, 312 U. S. 426. ,878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and- desist from : 1 (a) Discouraging membership in Local Union No. 164 of the Inter- national Association of Cleaning and Dye House Workers, affiliated with the American Federation of Labor, or any other labor organi- zation of their employees by discharging or refusing to reinstate any of their employees or by discriminating in any other manner in re- gard to their hire and tenure of employment, or any term or condition of employment; (b) Engaging in surveillance of employees in any manner as to their -union activities; (c) Threatening employees with economic reprisal if Local Union No. 164 of the International Association of Cleaning and Dye House Workers, affiliated with the American Federation of Labor, or any other labor organization, succeeds in unionizing the plant; (d) Promising employees economic benefits if they refrain from joining or assisting Local Union No. 164 of the International Associa- tion of Cleaning and Dye House Workers, affiliated with the American Federation of Labor, or any other labor organization; (e) In any other manner interfering with, restraining, or coercing their employees, in the exercise. of the right to self -orgauizatign,.,to, form labor organizations, to join or assist Local Union No. 164 of the International Association of Cleaning and Dye House Workers, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their -own choosing or to engage in concerted activities for the purposes 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 Flory Morelli, Helen Gilasevitch, George Magakis, Leo Kelly, Anthony Marciano, and John Morelli immediate and, full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges; (b) Offer to Bernard Czankner immediate and full reinstatement to his former or substantially equivalent position, in the manner set forth in the section entitled "The Remedy"; (c) Make whole Flory Morelli, Helen Gilasevitch, George Magakis, Leo Kelly, Anthony Marciano, and John Morelli, for any losses of pay they may have suffered by reason of the Respondents' discrimination against them by payment to each of them of a sum of money equivalent to the amount which he or she normally would have earned as wages from the date of such discharge to the date of the Respondents' offer of reinstatement, less his or her net earnings during said period; THE ELECTRIC CITY DYEING COMPANY 879 (d) Make whole Bernard Czankner for any loss of pay he may have suffered or may suffer by reason of the Respondents' discrimination against him, by payment to him of a sum of money determined in the manner set forth in the section entitled "The Remedy" ; (e) Post at their plant in Scranton, Pennsylvania, copies of the notice attached hereto, marked "Appendix A."112 Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being signed by the Respondents' representative, be posted by the Respondents, andd.maintained by them for sixty (60) consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material; (f) Notify the Regional Director for the Fourth Region in writing, within ten (10) days from the date of receipt of this Order, what steps the Respondents have taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar as it al- leges that the Respondents discharged Leroy Sims and Frank Mc- Andrew in violation of Section 8 (3) of the Act, be, and it hereby is, ,dismissed. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that : WE WILL NOT discourage membership in LOCAL UNION No. 164 ,OF THE INTERNATIONAL ASSOCIATION OF CLEANING AND DYE HOUSE WORKERS, affiliated with the AMERICAN FEDERATION OF LABOR, or any other laboraorganization of our employees , by discharging or refusing to reinstate any of our employees or by discriminating in any other manner in regard to their hire and tenure of employ- ment, or any other term or condition of employment. WE WILL NOT in any manner engage in surveillance of our em- ployees as to their union activities. WE WILL NOT threaten our employees with economic reprisal if LOCAL UNION No. 164 OF THE INTERNATIONAL ASSOCIATION OF CLEANING AND DYE HOUSE WORKERS, affiliated with the AMEpa- CAN FEDERATION OF LABOR, or any other labor organization, suc- ceeds in unionizing the plant. 11 In the event this Order is enforced by decree of a Circuit Court of Appeals , there shall be inserted in the Notice, before the words, "A DECISION AND ORDER," the words. "A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING." 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT promise our-employees economic benefits, if they refrain from joining or assisting LOCAL UNION No. 164 OF THE INTERNATIONAL ASSOCIATION OF CLEANING AND DYE HOUSE WORK- ERs, affiliated with the AMERICAN FEDERATION OF LABOR, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organi- zation, to form labor organizations, to join or assist LOCAL UNION No. 164, INTERNATIONAL ASSOCIATION OF CLEANING AND DYE HOUSE WORKERS, affiliated with the AMERICAN FEDERATION OF LABOR, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining pr other mutual aid or protection. WE WILL offer to the employees named below immediate and full reinstatement to their fornier or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss, of pay suffered as a result of the discrimination. Helen Gilasevitch John Morelli George Magakis Anthony Marciano Leo Kelly Bernard Czankner Flory Morelli All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of member- ship -in or activity on behalf of any such labor organization. THE ELECTRIC CITY DYEING COMPANY, Employer By --------------------------------------- (Reprexentattve ) (Title) Date -------------------- This notice must remain posted for sixty (60) days from the date- hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Sidney Grossman, for the Board. 1 Mr. Joseph T. McDonald, of Scranton , Pa., for the respondents Messrs. James W. MoNvlty and Joseph L. Downes, of Scranton . Pa., for the LUnIon. STATEMENT OF THE CASE Upon an amended charge duly filed by Local Union No. 164 of the International Association of Cleaning and Dye House Workers , affiliated with the American ' THE ELECTRIC CITY DYEING COMPANY 881 Federation of-Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Fouith Region ( Phila- -delphia, Pennsylvania ), issued its complaint dated March 3, 1947 , against The Electric City Dyeing Co ., a corporation, and Fred L Nuttall and Catherine A. Nuttall, co-partners , doing business as The Electric City Dyeing Company, Scran- ton, Pennsylvania , herein called the respondents , alleging that the respondents had engaged in and were engaging in unfair labor practices affecting commerce within the-meaning of Section 3 ( 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 respondents and the Union With respect to the unfair labor practices , the complaint , as amended at the hearing, alleged in substance that: ( 1) on or about April 20, 1946, and at various times thereafter, the respondent partnership ( a) urged, warned, threatened, and persuaded their employees not to become or remain members of the Union or to engage in concerted activities in behalf of the Union or in concerted activities for the purpose of collective bargaining or other mutual aid or protection ; (b) dis- paraged and expressed disapproval of the Union ; ( c) threatened their employees with economic reprisals for assisting , becoming members of, or remaining mem- bers of the Union; (d) threatened to discharge their employees unless they abandoned a strike or other concerted activities that they had engaged in and were engaging in for their mutual aid or protection ; ( e) kept under observation and surveillance the meeting places, meetings, and the activities and concerted activities of their employees for the purpose of self-organization or improvement of working conditions ; ( f) promised their employees economic rewards or benefits for refraining from becoming or remaining members of the Union ; and (g ) granted their employees wage increases and other economic benefits notwithstanding the fact that the Union was engaged in organizing said employees ; ( 2) on or about April 25, 1946, the respondent partnership discharged and thereafter refused to reinstate Flory Morelli, Helen Gilasevitch, George Magakis, Leo Kelly , Bernard Czankner, Anthony Marciano, John Morelli, Frank McAndrew, and Leroy Sims for the reason that they joined and assisted the Union and engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection ; ( 3) the respondent corporation since its formation on or about October 2, 1946, has failed and refused to reinstate the above-named employees to their 'former or substantially equivalent positions of employment for the reasons stated ; and (4) the alleged unfair'labor practices have led to a ,labor dispute burdening and obstructing commerce in that the employees engaged in a strike as a consequence of said practices. The respondents' answer dated March 11, 1947, admits certain allegations of the complaint concerning the partnership and corporate structures and business activities, but denies that they had engaged in unfair labor practices. The answer alleges affirmatively , inter alia, that the respondents ' principal customer, one Lawrence Jacobson of Philadelphia , had complained about the type and character of work being performed for hire, that the deficiencies in said work had become so great that Jacobson threatened to withdraw his business from the respondents , and that upon determining that the responsibility for the deficiencies .was properly attributable to the above -named employees , the respondent partner- ship discharged them. Pursuant to notice, a hearing was held at Scranton, Pennsylvania , on April 21, 22 and 23 and May 1 and 2, 1947, before the undersigned , the Hearing Examiner ,designated by the Chief Hearing Examiner . The Board, the respondents and 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union were represented by counsel and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues was afforded all parties At the close of the Board's case, counsel for the respondents made separate motions that the complaint be dismissed in whole and in part upon the ground that a prima fame case had not been established by the Board These motions were denied by the undersigned. At the close of the hearing, the respondents again moved that the complaint be dismissed in whole and in part, and these motions were taken under advisement by the undersigned. The same are hereby,denied. Counsel for the Board moved to conform the pleadings to the proof as to formal matters, and this motion was granted without objection. The parties did not avail them- selves of an opportunity to argue orally before the undersigned after the presen- tation of all the evidence, but, pursuant to leave granted at the hearing, on June 3 and June 11, 1947, the Board and the respondents, respectively, filed briefs 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 RESPONDENTS The respondents, Fred L ' Nuttall and Catherine A: Nuttall, co-partners, doing business as The Electric City Dyeing Company, were a partnership organized in January 1943, which had its office and place of business in Scranton, Pennsyl- vania, until November 1, 1916. They wei e engaged in the business of dyeing clothing and other textile products. On the last named (late, the respondent corporation, a Pennsylvania corporation which is owned and controlled by the respondent partners and their family, succeeded to the business, assets and liabilities of the respondent partnership and since has operated the plant in Scranton. There is no problem of successorship involved in this proceeding. During the calendar year 1946, clothing and other textile products received by the respondents for processing in the Scranton plant amounted to approximately $100,000 in value, of which about 50 percent was shipped and transported to the plant from points outside the Commonwealth of Pennsylvania. The clothing and other textile products, after processing, were returned to the respondent's cus- tomers, and about 50 percent were shipped to points outside the Commonwealth of Pennsylvania. The respondents concede that they are engaged in commerce within the, meaning of the Act. II. THE ORGANIZATION INVOLVED Local Union No. 164 of the International Association of Cleaning and Dye House Workers, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the respondents. III. THE UNFAIR LABOR PRACTICES A. The chronology of events The events with which we are concerned took place principally within a period of 1 month. In early April 1946, several of the employees sought to organize a union and they solicited the signatures of other employees to applications for membership in a labor organization which is not a party to this proceeding. After a sizeable number of application cards had been signed, a group of about THE ELECTRIC CITY DYEING COMPANY 883 12 employees called upon Joseph L. Downes, president of the local Building Trades Council, who informed them that he was unacquainted with the problems of em- ployees in the dyeing business , and that he would contact officials of the Interna- tionlal. Association of Cleaning and Dye House Workers in a nearby State . Downes did so, and a meeting of employees was arranged for later that month. As subsequent events proved, the application cards previously signed by the em- ployees were to be discarded in favor of applications for membership in the Union. On April 20, an employee named Walter Gilasevitch called upon Fred L. Nuttall, president of the respondent corporation, at the latter's office. Gilasevitch in- formed Nuttall that on the following Tuesday, April 23, the employees would hold an organizational meeting, and Nuttall thanked Gilasevitch for the infor- mation. Later that day, Nuttall advised Charles R. Heilig, the plant superintend- ent, of Gilasevitch's remark and inquired if Heilig had heard anything about it. Heilig replied in the negative. On the following Monday, April 22, Nuttall and Heilig again discussed the matter, "wondering whether the Union would have a majority of the help" and whether they should ascertain the fact 3 Heilig sug- gested that they observe the meeting, to which suggestion Nuttall agreed. In addition, they discussed the matter again on the next day and decided to have someone attend the meeting, and to report to them upon the proceedings and those in attendance. They selected an employee named ,William Bensing and asked him to attend, telling him that "he could spend a few dollars and it would be taken care of." Bensing agreed. On Monday, April 22, the day preceding the organizational meeting, the ap- proximately 50 employees on the (lay shift were addressed by Nuttall. The speech, which had been prepared in advance, is reproduced in full as "Appendix A" below. It was delivered to the employees during working hours, and they were compensated at their usual rates of pay during the time spent in listening. On the following day, at about 8: 30 o'clock, the employees held their organi- zational meeting at a local union hall. Approximately 35 employees attended, and they were addressed by representatives of the International Union. They elected officers and a grievance committee, all of whom consisted of employees who are complainants herein. Nearly all of the employees present signed applications for membership in the Union and paid their initiation fees. Ben- sing, who was present at the respondents' request, did not apply for membership. The union hall in which the organizational meeting was held is located on the second floor of a building in the downtown area. The hall is partially visible to persons in the mezzanine of a hotel across the street, and representatives of the respondents were there during the course of the meeting. Heilig, the plant superintendent, testified that he, Nuttall, and their wives had been seated in an automobile near the entrance to the hall, where for about 10 minutes they sought to recognize persons who entered the building, that thereafter they went b, the mezzanine of the hotel and watched the proceedings through open windows, that they identified about 20 of the employees present, and that they watched the employees form a line and "sign some record of some type." Included among the employees identified were 6 of the 9 complainants. Heilig testified also that the respondents observed that 4 employees remained after the conclusion of the meeting, and he and Nuttall correctly deduced that. these 4 employees "must have been made the officers of the Union." Finally, Heilig testified that Nuttall i The findings in this paragraph are based upon the testimony of Nuttall, a witness for the respondents, and Heilig, a witness for the Board Heilig's employment by the respond- ents was terminated subsequent to the events discussed herein, but the respondents did not attack his credibility. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mistakenly identified a bookkeeper named Mae Walsh as having been in attend- ance and that Nuttall, before learning from Bensing that Walsh in fact had been absent, said to Heilig that if Walsh was present, he would, "have-the privi- lege of firing her." The testimony of Heilig above set forth is not denied by the respondents, and the undersigned accepts it and finds accordingly After watching the organizational meeting, Nuttall, Heilig and their wives went to the plant, where Nuttall addressed employees -on the night shift in the language already set out in "Appendix A " . - On the following morning, Wednesday, Nuttall and Heilig talked with Bensing; _Bensing informed them of the . employees who had attended, stating also that several employees had been elected officers and members of the grievance com- inittee, and that Walsh, the bookkeeper, had not been present. One of these three individuals, Nuttall, Heilig or Bensing, commented that the employees "had _joined up in the Union, and it wouldnt be a good idea to fire any one at that particular time." Immediately after the conversation with Bensing, Nuttall departed for Phila- delphia. In that city, Nuttall called upon Lawrence Jacobson, an -individual -who -was engaged in the wholesale dyeing business as a jobber and who was the respondents' principal customer. As discussed more fully below, Jacobson had complained to Nuttall on several occasions about the faulty work being ,per- formed ,by the -respondents and had demanded that Nuttall visit him in Phila- delphia. Jacobson and Nuttall- discussed certain of the former's complaints in detail, and evidence of the faulty work was shown to Mil-tall He returned to the plant that night, bringing along numerous garment,' which Jacobson had refused to accept and upon which the respondents were to perform additional and better work. Nuttall arrived at the plant about 8: 30 o'clock that 'night. He examined certain production records, as discussed in more detail below, and determined-to discharge the nine complainants. He communicated his decision to Superintendent Heilig by telephoning the latter and stating, in the uncon- tradicted testimony of Heilig, that "he had just come back from Philadelphia -and had brought back quite a number of complaints . . ," that "quite a num- ber of 'bad jobs had been going out to" Jacobson and that "he decided he was -going to do something." Nuttall stated also that the employees "were talking -more about unions than they were about paying attention to the actual work " that he would "bring to a head. . . . Whatever was fermenting in the" employees' minds, and that he had decided to discharge the nine complainants. - - On the following day, Thursday, at the usual time,for commencing work, several of the complainants noticed that their time cards had been removed from the rack. Heilig testified, and the undersigned finds, that he told Flory Morelli, John Morelli, Czankner, McAndrew and Kelly that each of them "had no job" and that employees in a section of the plant known as the "Jacobson room" were being discharged also. Upon being so informed by Heilig, the Morelli 'brothers went outside the plant and awaited the arrival of other em- ployees, telling them of the conversation with Heilig and stating that those -whose time cards had been removed from the rack had been discharged Several of the complainants entered the plant to ascertain whether the cards had been removed and to talk with Nuttall or Heilig. They were not, however, informed ,of the reason for the discharges, nor did they inquire. Thus, Flory.Morelli -went into Nuttall's office and inquired of Nuttall whether the respondents were -ready to compensate him for work,already performed Nuttall replied that lie THE ELECTRIC CITY DYEING COMPANY 885 would be compensated "shortly," but there was no reference by either individual to the reason for the discharge. Helen Gilasevitch, a complainant who is the daughter of the man who informed Nuttall of the union meeting, testified that she went into the plant in an effort to ascertain from Nuttall or Heilig why she had been discharged, that they "both looked very busy," that she went out- side the plant without making the inquiry, and that she was under the impression that she had been discharged because of her election as secretary-treasurer of the Union. On the morning of the discharges, Flory Morelli, the Union's newly elected chairman, advised various employees who had not been discharged that they should continue at work that day. Promptly thereafter, he and other com- plainants met with representatives of the Union, who determined to confer with Nuttall that afternoon and to hold a meeting of union members that night. Later during the day, Joseph L. Downes and Ray Myers, representatives of the Union, called upon Mr and Mrs. Nuttall, their attorney, Joseph T. McDonald, and Superintendent Heilig. The Union's representatives demanded that the nine complainants be reinstated, and the respondents rejected the demand. The representatives were made aware of the complaints which had been voiced by Jacobson, the respondents' principal customer, and Nuttall detailed the evidence ' of faulty work which resulted in those complaints, asserting that the discharges were based upon the faulty work. Nuttall also pointed out that Jacobson had threatened to withdraw his business from the respondents unless the conditions were corrected. On the night following the discharges and refusal., to reinstate the members of the Union held a meeting. They were advised by Myers that a demand for rein- statement had been made upon the respondents, and that the demand was refused. With the nine complainants not participating in the vote, the other members voted unanimously to commence a strike on the next day. On the morning of April 26, a picket line was established outside the plant. It resulted in a severe curtailment; if not a cessation of production operations, and on the following day the respond- ents mailed to the employees, other than the complainants, a form letter which is reproduced as "Appendix B" hereto. As discussed below, counsel for the Board contends that the mailing of these letters constituted a violation of Section 8 (1) of the Act. At about the time of mailing the form letter to the employees, the respondents instituted in a local court a proceeding against the Union in an effort to secure an injunction. The matter was heard on May 4 and, although the record herein is silent as to the Court's disposition thereof, it is clear that at an undisclosed time thereafter the picketing ceased. It is the Union's position, however, that the strike is still in progress, while the respondents contend that it has terminated. During August, when approximately 40 of the employees were participating in the strike, there were conferences between representatives of the respondents and the Union in an effort to settle their differences. The conferences were fruitless. The respondents offered to reinstate all striking employees, including the complainants, as work became available for them No exact time was fixed in which the reinstatements were to be accomplished, but it was stated by the re- spondents that the strikers and complainants were to be placed at work as ex- peditiously as possible and that, if need be, the respondents would reinstate the complainants at odd jobs, such as painting and other work, without a decrease in wages, until work of the nature formerly done by them was again available. The respondents' offer did not provide for back pay to the complainants, nor for 809095-49-vol 79-57 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the displacement, where necessary to reinstate the old employees, of employees hired subsequent to the strike, and for these reasons the offers were rejected by the Union. B. Interference, restraint and coercion' The respondents acknowledge, and the undersigned has found, that they sought and obtained the assistance of employee Bensing in ascertaining the identity of employees who attended the organizational meeting, as well as events which transpired thereat, and that they observed the meeting from a vantage point in a local hotel. The respondents assert that their purposes were to ascertain, first, whether Nuttall had been informed correctly that there would, be such a. meeting; second, whether Nuttall's informant was present ; and third, whether the in- formant "was being used as a decoy for the purpose of getting him [Nuttall] to the meeting " It is asserted that there was no violation of the Act in these circum- stances. The undersigned does not agree. The reliable and uncontradicted testi- mony of Superintendent Heilig establishes that the respondents' real purpose was to ascertain "whether the Union would have a -majority . . ," and the Board and the Courts have held consistently that such surveillance is an unfair labor practice. The undersigned so finds.2 _ The respondents have acknowledged, also, and the undersigned has found. that Nuttall addressed separate groups of employees on two occasions in the language set out in "Appendix A." The Board asserts that the address was in violation of Section 8 (1) of the Act, while the respondents contend that' it was an exercise of their constitutional right to freedom of speech as recognized in recent decisions of the Courts and the Board.' Brief references to the speech will resolve the issue. The speech commences with a reference to the organizational meeting "to be held for the purpose of doing something about" the employee dissatisfaction "with the policies of the company." The meeting was viewed with "the greatest regret" by the respondents, who regarded employees "supporting this proposed program" as "committing an unfriendly act towards the management." After expressing a lack of intent "to restrain" the organizational activity, Nuttall then disclosed various improvements in working conditions which had been under consideration by the respondents and the disclosure of which had been "forced" by the organizational activity. These improvements, not-all of which were to be instituted immediately, included shorter hours of work, a fixed schedule of wage rates, free hospitalization and insurance benefits, an incentive bonus 2 Cf N L R. B. v Collins & Aiknian Corporation, 146 F (2d) 454, 455 (C. C. A 4), wherein the Court said "Any real surveillance by the employer over the Union activities of employees, whether frankly open of carefully concealed, falls under the prohibitions of the Act. * * * [authority cited] " See also Matter of Spencer Auto Electric, Inc, 73 N L R B 1416, where the Board held that the employer s unlawful conduct consisted, in part, of "(a) instructing Beasley [an employee] to check and report upon the employees' organizational activities; (b) Beasley's consequent efforts to acquire the requested infor- mation and the identity of employees iiho attended the December 21, 1945. organizational meeting . . The respondents, on the other hand, rely upon N L R B v J L. Brandeis & Song, 145 F (2d) 556 (C. C. A 8), but that case is manifestly not in point There the employer's surveillance was of union representatives who came into the employ- er's store, after complaint to the union by the employer that they did so "too frequently," and the purpose of the surveillance, which was entirely upon the employer's premises, was to prevent interference with the employees in the discharge of their duties to customers during working hours 3 N L R B v Virginia Electric if Pouer Company, 314 U S 469; N L R. B v Ameri can Tube Bending Co, Inc., 134 F (2d) 993 (C C A 2), cert. den 320 U S 768, and the line of cases following. THE ELECTRIC CITY DYEING COMPANY 88 plan and an improved vacation plan. The purpose in making known these im- provements, said Nuttall, was to enable the employees to determine whether they wished to support the organizational activity. There, followed, the sugges- tiog that "dissatisfied" employees "quit and give a break" to persons on the list of applicants for employment, and the speech closed with the statement that the organizational activity was "an act of the greatest ingratitude," that the employees should "consider very carefully" the matter of attending the union meeting, and that "much more" could be obtained from "friendly management" than from a management whose "hand may be forced unfairly" by organizational, activity. TTie respondents urge that'the speech is free of coercive language and they point out that the improvements in working conditions were suggested initially by a firm of production experts which had studied production problems in the plant and had made its recommendations prior to the commencement of or- ganizational activity The undersigned has considered the respondents' con- tentions carefully and finds that they are not persuasive. When viewed in its entirety, the speech is not a dispassionate presentation of the employer's view- point. Indeed, the characterization of the employees' activity as "unfriendly" and as demonstrating "the greatest ingratitude" to management, the suggestion that dissatisfied employees should resign rather than exercise their right to, seek improved working conditions through union representation, and the state- ment that "much more" could be obtained from a "friendly management"; than by unionization, are all expressions which are calculated to appeal to the employees' fear rather than to their reason.` Under these circumstances, it is immaterial that the speech also contains an expression of it lack of intent "to restrain" the employees in their activity.' Moreover, Nuttall frankly stated in the speech that he was disclosing the planned improvements in working conditions in an effort to influence the employees' decision on whether to continue their activity, and therefore it is immaterial that the changes were in'process of establishment and presumably would have been established had there been no organizational activity. The law is clear that the utilization of inducements of this nature to achieve such purpose is an unfair labor practices Finally, the speech must be considered in context with the surveillance of the organiza- 4 Cf,N L R B v West Kentucky Coal Company. 152 F (2d) 198 (C. C. A. 6) , N L R B_ V Th'e Federbush Co, Inc, 121 F (2d) 954 (C C A 2), wherein the Court said " . Words are not pebbles in alien juxtaposition ; they have only a communal existence ; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used, of which the relation between the speaker and the hearer is perhaps the most important part What to an outsider will be no more than the vigorous presentation of a conviction, to an employee may be the mani- festation of a determination which it is not safe to thwart . " 5 Matter of Clark Bros Co, 70 N L. R. B 802; Matter of Reliance Manufacturing Company, etc., 67 N L It B 515; Matter of Gate City Cotton Mills, 70 N L R B 238. "Matter of Hudson Hosiery Company, 72 N L R B 1434, wherein the Board, citing abundant authority, said : . . . What is unlawful under the Act is the employer's granting or announcing such benefits (although previously determined upon bona fide) for the purpose of causing the employees to accept or reject a representative for collec- tive bargaining . . . The vice of the respondent's conduct is that in each instance' it so timed its initial announcement to employees as to insure that the forthcoming raises would directly affect their decision on the issue of union representation . . In both instances this result could readily have been avoided and was not a necessary incident of the respondent's economic decision to increase wages." See also Matter of The S Frieder & Sdns Company, 62 N. L R B. 880. enf'd N. L R B Frieder if Sans' Company, 155 F (2d) 266 (C. C. A. 3) , Medo Photo Supply Corporation v. N. L. R B, 321 U. S 678, 64 8 Ct. 830. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional meeting and the discharges of employees discussed below, and when so considered it becomes manifest that the speech is not protected by the Constitution.' - Counsel for the Board contends further that the respondents, by mailing to the striking employees other than the complainants the letter of April 27 repro- duced as "Appendix B," thereby committed an unfair labor practice That letter was an obvious effort to induce employees to forsake the strike and to return to work.' Its statement that any employee whose absence from work was continued until May 1 "would be terminated" was ineffective to constitute a discharge. This is so because under Section 2 (3) of the Act, the striking employees remained employees within the meaning of the Act. The mailing of the letter was nevertheless a violation of Section 8 (1). As the Board has said : 9 . . . Inasmuch as the purpose and effect of the respondent's action in threatening discharge and purporting to discharge the strikers was to restrain them from engaging in concerted activities for their mutual aid and protection, the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8 (1) thereof... The undersigned finds that the respondents, by observing the organizational meeting of the Union, by Nuttall's addresses to the employees, and by mailing to the employees the form letter above mentioned, interfered with, restrained, and coerced, and are interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discharges As stated above, Nuttall discharged nine employees following a visit which he made to the plant of his principal customer, Jacobson. Before considering the duties of these employees, the quality of their work, and the contentions respecting the discharges, we shall consider the nature of the respondents' business and the production difficulties with which they were beset The respondents' business is primarily the dyeing of clothing. Over a num- ber of months preceding the strike, there was a continuous and heavy increase in the quantity of garments to be dyed, due largely to the scarcity of new clothing on the retail market and the consequent necessity that "G. I." clothing be worn by veterans. The dyeing of such garments, which commenced as early as 1943, reached large proportions in the latter part of 1945. The respondents' business during the first 4 months of 1946, the period immediately preceding the strike, increased more than 200 percent over the corresponding period of 1945, and simultaneously with the increase in business, the respondents were faced with a rising number of complaints from dissatisfied customers. In fact, on April 3, 1946, Nuttall wrote to Jacobson, whose account constituted approximately 40 7 Matter of Clark Bros. Co., Inc., footnote 5 ; N. L. R. B. v. Virginia Electric & Power Company, footnote 3; where the Court said at page 477 that "conduct, though evidenced in part by speech , may amount in connection with other circumstances to coercion within the meaning of the Act " 8 Counsel makes a similar contention respecting an advertisement which the respondents placed in a local newspaper on May 27 , 1946. The undersigned believes that it is unnec- essary to discuss the contention in detail . The most that can be said of it is that the advertisement falls within the same category as the letter of April 27. Matter of Rockwood Stove Works, 63 N L. R. B. 1297, 1298. THE ELECTRIC CITY DYEING COMPANY 889 percent of the respondents' business, that the overall increase above the pre- ceding December was "just about" 100 percent, that Nuttall was confronted with "the toughest period" in his experience, and that it might require "several months to get straightened out" New employees were hired during the period from the latter part of 1945 until April 1946, the number of employees increasing from 40 to 65, and Superintendent Heilig testified that because of the increased production he was unable to give these employees the training which they required. In an effort to meet the problems, the respondents hired the production experts mentioned in Section III, B, above The experts commenced work about January 1946, when overtime work and double shifts had failed to present a solution, and various alterations followed their recommendations. In particular, they sug- gested the establishment of a division within the plant called the "Jacobson room" which would be devoted to certain operations on the large number of 'garments sent to the plant by Jacobson. and which was intended to eliminate errors of which Jacobson had complained. The room was established, and certain of the complainants worked therein. Upon receipt of garments at the plant, they were taken to the receiving de- partment where invoices were prepared, the garments were separated according to types of materials, and a tag was attached to each garment with code desig- nations which signified the name of the customer and the color the garment was to be dyed. Since the garments received from Jacobson constituted approx- imately 40 percent of the business, and because it was helpful that they be recognized easily, the type of tag attached to those garments differed in appear- ance from the type attached to other garments. After completion of the receiving operations, the garments were sorted according to the colors they were to be dyed, and were placed into bins. They passed then to "loaders" who wrapped into 75 pound bundles those garments which were to be dyed blue, black or brown, called "basic" dyes. and placed in bags those garments which were to be dyed other colors, called "fancy" dyes. The garments were then taken to the dyers. Garments to be dyed basic colors were dyed by basic dyers; others by fancy dyers. After dyeing, they were rinsed, the moisture was removed, and they were hung to dry Thereafter, all garments were taken to the Jacobson room, where the garments from other customers were separated from the Jacobson garments and removed to the shipping room for inspection and preparation for shipment The Jacobson garments, on the other hand, remained in the Jacobson room for the same operations. As found above, Nuttall discha>vged,the nine complainants following a visit he made to Jacobson in Philadelphia. For 2 months or more preceding the visit, Jacobson had complained to the respondents that the quality of work performed for him had decreased and that he was finding it difficult to retain his cus- tomers. He complained that garments were being dyed the wrong shades and colors, that other garments were streaked and spotted, that garments had been torn or otherwise damaged by the respondents, that garments were lost and not returned to him, and that garments were sent to him which belonged to other customers. The record leaves no doubt that Jacobson was justified in com- plaining.3° 10 While there is some indication as shown by the claims paid, that Jacobson's complaints were no-greater durin tearky 1946,than duripg a corresponding period in 1945, based upon the volume of business he sent to the respondents , it is clear from his testimony that the complaints were quite numerous and serious. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record leaves no doubt too that some of the complainants were not partic- ularly capable employees and that they performed faulty work . The question, however, is whether they and other complainants were discharged for perform- ing faulty work, as the respondents assert, or because of their union member- ship and activities . - We turn, therefore , to a discussion of the work performed by them and to the real issue in the proceeding. Helen Gilasevitch commenced work in August 1945, and was assigned to sev- eral different types of work . At the time of her discharge she was a writer in the receiving department . Employees therein worked in groups of three at a table, one of whom prepared` the coded tags containing instructions about dyeing, and simultaneously called out the data to the writer , who recorded it on an invoice. The third employee pinned the tag to the garment. Gilasevitch for a short time was the writer at the table which handled garments in the Jacobson account. The respondents assert that Gilasevitch 's "relationship with the other people in the Jacobson room was not satisfactory . . . that she was part and parcel of a group that was causing the errors and affecting work. . . . " Ray Wetzel, Gilasevitch 's foreman , testified that she was not on friendly terms with some of the employees, that she did not take her work seriously enough to suit him, that she disagreed with his decisions, and that she was "a little bit" heedless in her work. Wetzel testified further that errors in the department of which he was foreman were not ascertainable until the dyeing process had been com- pleted and the garments were being examined .prior to shipment , that a "good majority" of the errors discovered by such examinations were traced to his department, that Superintendent Heilig called them to his attention , and that a "good preponderance " of the errors were attributable to employees at the table where Gilasevitch worked.' According to Wetzel, there were "at least two" occasions upon which he talked to Gilasevitch about errors she committed, and approximately 3 weeks before her discharge he complained to Nuttall about her work with the suggestion that Nuttall "look into it " The undersigned was not favorably impressed with Wetzel's testimony. The record shows that Gilasevitch was transferred from a salary to an hourly basis of pay which resulted in in- ,creased earnings of about $3 .00 per week , and Nuttall testified that he could not -recall whether this transfer took place before or after his conversation with Wetzel about her. Moreover, it is clear that Gilasevitch 's duties were such that the serious errors which were committ ed at the table where she worked could not be attributed to her , but neither of her associates was discharged. For instance, Gilasevitch merely wrote on an invoice certain data which was called out to her by the employee who coded the tags. If the code on the tag, designating the color the garment was to be dyed , did not correspond with the writing of Gilasevitch on the invoice, then presumably she was in error , but the error was minor because the dyers did not look to invoices for instructions . On the other hand, if the coded tag and the invoice corresponded , and the tag contained erroneous in- structions for dyeing, then the garment would be dyed a color other than that desired by the customer, but the fault would be that of the coder , not Gilasevitch. Likewise, if the third employee at the table , whose duty it was to attach the tags to the garments , should attach to one garment a tag belonging to another, so that erroneous dyeing resulted , the error would not be attributable to Gilase- vitch. Finally Gilasevitch testified credibly that she - had never been ' ciiticized for her work. THE ELECTRIC CITY DYEING COMPANY 891 Gilasevitch joined the Union on April 22, and at the organizational meeting on the following night she was elected secretary-treasurer. Her presence at the meeting was noted by Nuttall and Heilig from their point of observation in the hotel mezzanine Leroy Sims commenced work for the respondents on February 15, 1945. He wits the assorter in the receiving department with the duty of examining the tags which had been placed upon the garments and segregating the garments ac- cording to the colors they were to be dyed. He handled garments from all cus- tomers, .not alohe from Jacobson. Sims was not regarded by Superintendent Heilig, a credible witness for the Board, as a capable employee. According to Heilig, a number of garments were dyed in colors not desired by the customers, and he concluded that Sims was partially responsible by failing to sort the garments properly. Sims did not attend the organizational meeting of the Union, but the record establishes that he signed one of the application cards used by the employees in early April, that he aided in the circulation of those cards , and that he paid an initiation fee to Gilasevitch. Anthony Marciano worked for the respondents only 1 month, having been em- ployed during March 1946. He worked for approximately 3 weeks in the receiv- ing department, attaching tags to garments, and then was transferred to the job of assorter. After Sims had finished assorting garments, they were weighed and the garments to be dyed a basic color were passed along in bundles to Mar- ciano who examined the bundles to ascertain that only garments to be dyed a particular color were included therein. On occasion, however, the bundles were not tied well and the garments became scattered so that, although Marciano in fact performed work already performed by Sims, it appears that he was assigned this duty in order to relieve the dyers of the function, which they had performed theretofore. Superintendent Heilig testified credibly that the work of Marciano was unsat- isfactory and that he and Nuttall discussed the possibility of discharging Mar- ciano very shortly after he was employed. According to Heilig, Marciano should have been discharged because of the low quality of his work, but Heilig likes "to give a man a little break" and therefore left it up to Nuttall to discharge Marciano. Although the date of this incident is not fixed in the record, it ap- pears that Marciano was subsequently transferred to the job of assorter. It appears too that the matter was not discussed with Marciano, who testified that his work was criticized only after lie became an assorter, and that the criticism was not entirely justified. The respondents assert also that Marciano spent much time in searching the pockets of garments for articles which might have been left therein by owners, that such practice was prohibited because it delayed the dyeing process, and that Marciano continued the practice notwithstanding directions that he cease. Marciano signed an application card of the sort which was circulated among the employees early in April, and at the organizational meeting later that month he signed an application for membership in the Union. His presence at that meeting was noted by Heilig and Nuttall. Leo Kelly commenced to work for Nuttall in 1934 or 1935, prior to the forma- tion ot.•the respondent partnership oi corporation He worked as a basic dyer until his employment was terminated in 1941 He was reemployed in 1944 as a fancy dyer.. About 25 employees worked in the dyeing department, and Kelly 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Magakis, whose employment is discussed below, were experienced fancy dyers. Of the 25 employees, only they were discharged. Kelly was not a thoroughly reliable employee. He had an uncontrollable fondness for intoxicants According to Heilig, Kelly was admonished many times for being absent from work because of drinking, but when sober he was reliable. On one occasion, in fact, Kelly was absent from work for about 8 weeks as a conse- quence of a leg injury sustained while drinking, returning to work during the Feb- ruary preceding his discharge. It is apparent, however, that Kelly could not have been responsible for defective work during that time, and Heilig testified that it "would be hard" to attribute faulty work to Kelly at any time. Kelly testified that there was only one complaint made to him about his work, but that he was admonished for corning to work when he had been drinking. Kelly was more active in organizing the Union than any other employee It was he who took the initiative in circulating among the employees the applica- tion cards in early April, and at the organizational meeting he was elected a member of the Union's grievance committee. His presence, there was noted by Nuttall and Heilig. George Magakis was a fancy dyer, working alongside Kelly Magakis com- menced working for Nuttall about 1935. About 1936 his employment was inter- rupted for a year when he went to another State, and after his return he worked until 1942, when he entered military service. He had worked primarily as a basic dyer. In July 1944, after his discharge from the armed forces, Magakis returned to work for the respondents, this time as a fancy dyer. While in mili- tary service, Magakis became a victim of malaria, and he acquainted Nuttall with this fact at the time he returned to work. It was understood that his hours of work might be irregular, and it is clear that on a number of occasions he was absent from work, reported to work late, or ceased work (luring the day as a consequence of recurring attacks of malaria The respondents assert that Magakis, in addition to being a fancy dyer, also worked as a basic dyer, that his work was "substantially" on garments in the Jacobson account, that he "took advantage" of his ailment in order to be absent from work excessively, that he was of a quarrelsome nature, and that his quarrels with other employees resulted in decreased efficiency on the part of himself and his fellow employees. The respondents' first contention is not supported by the record. Magakis was a fancy dyer who may have performed a minor amount of work as a basic dyer after his discharge from the armed forces. But since the garments to be dyed basic colors were not segregated according to customers, and since the garments to be dyed fancy colors were not so segregated either, it is apparent that only by chance could Magakis have worked in large measure upon Jacobson garments. The respondents did not produce attendance records to establish the number of absences of Magakis, but it is clear that he did not work with the regularity of other employees. There is no reason, however, to conclude that those absences were not attributable to malaria. In fact, Superintendent Heilig testified that he did not have "too much trouble" with Magakis as a consequence of the absences. It is clear, however, that some employees working with Magakis resented him, that he participated in quarrels, and that Nuttall spoke with him in an effort to improve the situation, asking Magakis to conduct himself pleasantly toward other employees. On the other hand, Superintendent Heilig testified that it "would be hard" to attribute faulty work to Magakis, and it is clear that Magakis was never criticized about the quality of his work. THE ELECTRIC CITY DYEING COMPANY 893 Magakis, like Kelly, was elected to membership on the Union's grievance com- mittee, and his presence at the organ i zational meeting was noted by Nuttall and 'Ileiing Frank McAndrew commenced working for the respondents in January 1945. Upon the establishment of the Jacobson room early during the next year, he was transferred to it as a "sorter." As related above , after the dyeing opera- tions were performed upon garments , they were rinsed and dried . It was Mc- Andrew's job to take all garments from the drying room to the Jacobson room and, there to separate the Jacobson garments from garments of all other cus- tomers, taking the latter to the shipping room. Although there were several occasions upon which Nuttall or Heilig spoke with a group of employees, including McAndrew, about faulty work which had been discovered, there was no occasion upon which McAndrew was criticized directly for his work. In early April, McAndrew signed an application card of the type used originally by the employees . He did not attend the organizational meeting of the Union, but he became a member after signing another application card at a time he could not remember. John Morelli commenced work for the respondents during February 1346. He worked for about a month in the dye house, and was transferred at his own request to the Jacobson room as an assorter . There he performed the same type of work as McAndrew for the second and last month of his employment. He was not criticized for his work prior to the strike. During early April 1946, Morelli signed one of the application cards used by the -employees initially , his signature thereto having been solicited by Kelly, and at the organizational meeting of the Union he signed an application for membership. On that occasion he paid an initiation fee. His presence at the meeting was noted by Nuttall and Heilig. Flory Morelli also commenced working for the respondents during February 1946. He worked in the Jacobson room as an examiner, and was charged with the duty of examining garments in the Jacobson account after they had been brought to the room and segregated by his brother and McAndrew. When damage to a garment or imperfections , such as uneven dyeing, were detected, it was Morelli's function to set the garment aside so that it would not be returned to Jacobson until the fault had been corrected The respondents assert that Flory Morelli was thoroughly inefficient and that he was largely- responsible for the complaints by Jacobson. It will be recalled that ,Jacgpson had made a variety of complaints to Nuttall, including complaints that he was receiving garments which had been dyed incorrectly or poorly, torn or otherwise damaged garments, and garments which belonged to other cus- tomers, and the respondents contend that a capable inspection of these garments by Morelli would have resulted in their having been set aside for corrective work in advance of shipment to Jacobson . There is merit in the respondents' con- tention. While it appears from the testimony of Superintendent Heilig that some of the garments may have been damaged in shipment to Jacobson, and it is also true that Morelli could riot have been expected to detect errors in dyeing which were attributable to faulty coding of the "tags ," it is nevertheless true that a capable inspection of the garments would have brought, detection of streaks within garments and other types of errors in the dyeing process. In support'of the respondents' position , Nuttall testified that upon his return to the plant on April 24, after visiting Jacobson in Philadelphia , and at the time that he determined to discharge the nine complainants , he examined certain production 894, DECISIONS OF NATIONAL LABOR RELATIONS BOARD records which showed that a more thorough inspection of garments was being made by the examiner in the shipping room than by Morelli in the Jacobson room, and which showed also, because of the constant increase in the number of gar- ments being rejected by the examiners, that the work within the dye house was not being performed properly " It appears, however, that there was only one occasion upon which Morelli was criticized for faulty work On that occasion he was told by Nuttall, "You are here to reject the garments, don't be afraid, that is your job " Morelli was one of the leaders in the organizational activity. As related above, he and other employees called upon Downes, the International Representative, in early April and the organizational meeting followed. At that meeting Morelli was elected chairman of the Union, and his presence was noted by Nuttall and Heilig. Bernard Czankner commenced working for the respondents on October 27, 1945. It was his duty to take garments in the Jacobson account, after inspection by Flory Morelli, and place them neatly into the shipping bags, and thereafter to tie the bags The record establishes that Jacobson complained to Nuttall that various garments had not been placed in the bags properly, and the respondents assert that Czankner was a careless and inefficient employee. Superintendent Heilig, a witness for the Board , testified that Czankner's work was "especially unsatisfactory " for some months prior to the organization of the Union, that he and Nuttall discussed the matter and concluded that Czankner should be discharged at the same time that they reached a similar conclusion respecting Marciano. Heilig testified further that Czankner "was a kid" who had a "very bad temperament," but that other employees "paid . . . [no] atten- tion to him" because of his -youth Heilig testified also that his opinion of Czankner was formed soon after the latter 's employment in 1945, that Czankner was not discharged because of the scarcity of labor, but that this scarcity had ended sometime before the discharge of the complainants and that the respond- ents had a list of applicants for employment during April 1946.'2 " Counsel for the Board argues that this contention by the respondent is "purely conjectural," that the number of garments rejected by Flory Morelli compares favorably with the number rejected by the examiner in the shipping room , and that the increasing number of complaints should be attributed to the increasing amount of business As set forth above, there was an increase in business during the first 4 months of 1946 of more than 200 percent over that during the corresponding period of 1945, and there was a 100 percent increase from December 1945 to April 1946 In view of the undersigned's con- clusions below, however, it is unnecessary to consider*in detail this contention by counsel for the Board The record contains much testimony by Ethel Jenkins , a witness for the respondents, concerning Flory Morelli and Czankner. Jenkins was the only employee in the Jacobson room who was not discharged , and she did not participate in the organizational activities of the Union. Jenkins testified that (luring the period from March 1 to April 26, 1946, she saw Flory Morelli and Czankner throw garments into the bags in which they were retuined to Jacobson , that several tines a day for a period of two weeks before the dis- charges Flory Morelli and Czankner deliberately tore buttons from garments , that on "a half dozen times a day or more" for a period of "a week or month ," Morelli and Czanknei deliberately broke coat hangers and scattered the pieces on the floor, that Morelli, after selecting garments for redyeing because the original dyeing had been defective, neverthe- less put the garments into the bags for shipment to Jacobson , and that Morelli "a good many times" approved for shipment garments which had been dyed defectively. Jenkins testified also that on one occasion Kelly. one of the complainants , gave to Czankner a jacket which Czankner tried on and later , after dyeing , put into the lunch box of an••niiidentified- em- ployee . The undersigned rejects the testimony of Jenkins She did not create a favorable impression as a ixitness and, in fact , appeared to be careless in her anseers and inclined d. THE ELECTRIC CITY' DYEING COMPANY 895, Czankner was 110t a witness at the hearing and, of course, did not testify respect- ing his employment or union activities. He was in military service or the merchant marine, and his whereabouts was unknown to counsel for the Board. The record is clear, however, that Czanknei attended the organizational meeting, and that he joined the Union at that time Although Heilig testified that he could not recall having noted the presence of Czankner at the meeting, employee Bensing observed the proceedings at the respondents' request and later reported to Nuttall and Heilig the names of the employees who had attended. It is apparent from the above analysis of the work of each complainant that several of them were not regarded by the respondents as capable and that two of them were considered for discharges prior to the organizational activity On the other hand, certain of the complainants appear to have been employees whose work was not criticized, and there is convincing evidence that Superintendent Heilig regarded Kelly as it capable dyer notwithstanding his use of intoxicants. Thus subsequent to the strike, Jacobson established his own dyeing plant and promptly employed Heilig as superintendent, the same position which Heilig had filled for the respondents. Heilig, it will be recalled, had not participated in the selection of employees for discharge, and had been informed of the selections by Nuttall Yet Heilig's early acts as superintendent for Jacobson were to bring to Philadelphia as employees certain persons who had worked for the respondents. Among those persons were Kelly and McAndrew. The principal question in this case is whether the respondents were motivated by the shortcomings of certain employees and the alleged shortcomings of others in deciding to discharge them, or whether the respondents were motivated princi- pally by the complainants' union m embeiship and activities The undersigned has considered the evidence carefully and concludes that the respondents' motives were illegal. Several reasons impel this conclusion. First. the respondents' opposition to the Union and their surveillance of the organizational meeting Second, the utilization of employee Bensing to report upon events at that meeting and the employees present Thud, the statement of Nuttall to Heilig during the course of the surveillance that if Walsh, the bookkeeper, was present, he, Nuttall, would "have the privilege of firing her." This statement shows an unmistakable willingness to violate Section 8 (3) of the Act b'ourth, Nuttall, who selected the complainants for discharge, did so without consulting Superintendent Heilig or the foremen as to the complainants' abilities, although, as Nuttall testified, he himself had not had "very much contact" with any employee individually. More- over, at the time of Nuttall's decision to discharge, he had in mind the union to exaggerate. Moreover, itcwas not Flory. Morelli 's duty toplace _garnients in bags for shipment , since he was the examiner , and it does not appear from the testimony of Superin- tendent Heilig that he criticized Morelli or other employees for the conduct attributed to them by Jenkins Yet Jenkins testified that Heilig Caine into the room during the day and he could see that Morelli was throwing garments into bags Too, notwithstanding the great number of misdeeds attributed to the employees by Jenkins , which must have affected her work since she checked off on invoices the data called out to her by Moielli , she did not bring these matters to the attention of her superiors at any time before the strike Finally , although Czankner was not a witness and his whereabouts at the time of the hear- ing was unknown to the Board's attorney , Morelli testified that he did not see Czankner break clothes hangers , that lie did not break them himself , that old or poorly constructed 1ian,zers sometime,, came apart and fell to the floor , that lie rarely took over Czankner's job of placing garments in shipping bags and that when he did so he tolded the garments properly , that he did not recall instances when Czankner thieve garments into the bags, and _„h8t the garmeRESn-which heurejeeted -were,placed aside and not put into the bags Too, Kelly denied that he gai`e Czankner a jacket to try on 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities because he later telephoned Heilig and stated that the employees "were talking more about union than they were about paying attention to the actual work . . ," notwithstanding that the complaints from Jacobson extended over a period antedating the commencement of organizational activity. It was Nuttall's purpose, he said to Heilig, to "bring to a head . . . Whatever was fermenting in the" employees' minds. Fifth, the production records which Nuttall examined at the time he decided to discharge the complainants contain data respecting the work of several complainants, but not all of them, and there is no indication that Nuttall possessed or examined records which would show the extent of faulty work by a number of the complainants or capable work by per- sons who were not discharged." Sbtih, the majority of the work performed for Jacobson came within the group of three colors known as basic dyes, and a large proportion of Jacobson complaints concerning defective dyeing involved those colors. Nuttall did not, however, discharge a single basic dyer. Instead, he discharged the two fancy dyers who composed the Union's grievance committee, one of whom subsequently was hired by Superintendent Heing in Jacobson's new plant. Seventh, the complainants were not informed at the time of their dis- charge that the reason therefor was defective work" Finally, while it is true that valid reasons had existed for the discharge of a few of the complainants, the record is clear that the respondents chose instead to retain them as employees until the respondents learned of their organizing activities. To some extent per- haps, in the instances of these few employees, the respondents may have been motivated also by legal considerations in discharging them, but in view of the respondents' entire course of "conduct 'the undetsigned is unable to conclude conscientiously that any of the discharges was for cause. As the Board recently said, with a lengthy citation of authority : . . . We have uniformly recognized that "an employer may discharge an employee for good reason, a poor reason or no reason at all so long as the provisions of the National Labor Relations Act are not violated." [authority cited] However, where, as here, anti -union considerations pre- cipitate the discharge, we have found, and the Courts have agreed, that such a discharge is discriminatory and prohibited by the Act, even though valid reasons exist which might warrant this action. [authority cited] The undersigned finds that Gilasevitch, Sims, Marciano, Kelly, Magakis, Mc- Andrew, Czankner, and John and Flory Morelli were discharged because of their union membership and activities and that, by their discharges, the respondents have discriminated in regard to their hire and tenure of employment, thereby discouraging membership in a labor organization. The undersigned finds further that by such discharges , the respondents have interfered with, restrained, and coerced, and are interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act. 13 It cannot be determined to what extent , if any , the discharge of the complainants served to remove from the pay rolls employees who were responsible for defective work. This is so because the strike followed promptly after the discharges, and there were included among the strikers and other employees out of work because of the strike a large number of persons who had worked regularly on garments in the Jacobson account. 14 Cf. Matter of Spender Auto Electric, Inc., footnote 2. 15 Matter of Spencer Auto Electric Inc., footnote 2. THE ELECTRIC CITY DYEING COMPANY 897 IIV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section III, above, occurring in connipclilon with the operations of the respondents 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 burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondents have engaged in certain unfair labor prat- tices,'the undersigned .will recommend that they cease and-desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. The undersigned has found that the respondents discharged Flory Morelli, Helen Gilasevitch, George Magakis, Leo Kelly, Bernard Czankner, Anthony Mar- ciano, John Morelli,,Frank McAndrew, and Leroy Sims because of their union .membership and activities and that the respondents refused a demand of the Union that these individuals be reinstated on the day of the discharge. The undersigned has found also that about 4 months thereafter, during August 1946, the respondents offered to reinstate all striking employees, including the com- plainants, as work became available for them. The respondents' offer did not fix a time in which the reinstatement of the complainants was to be accomplished, but it was stated that the complainants were to be placed at work as expeditiously as possible and that, if need he. the respondents would reinstate the complainants at odd jobs, such as painting and other work without a decrease in wages, until work of the nature formerly done by them was again available. The respondents' offer did not provide for back pay to the complainants, nor for the displacement, where necessary to reinstate the complainants, of employees hired subsequent to `the strike, and for these reasons the offer was rejected by the Union. The ques- tion arises whether the offer of reinstatement was of such character as to relieve the respondents of the obligation to compensate the complainants for back pay subsequent to the date of the respondents' offer. The question must be answered in the negative. The defects in the respondents' offer are that (1) It did not envision the immediate reinstatement of the complainants, as presumably could have been accomplished by their displacement of employees hired subsequent to the strike, and (2) in providing for reinstatement at odd jobs, such as painting and other work, it did not constitute an offer of reinstatement to their former or substantially equivalent positions. The undersigned will recommend, there- fore, that the respondents offer immediate and full reinstatement to the nine complainants to their former or substantially equivalent positions," without prejudice to their seniority or other rights and privileges, and that the respond- ents make whole said complainants for any losses of pay they have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to that which he or she normally would have earned from the date of such discrimination to the date of the offer of reinstatement, less his or her net earnings " during said period. 16 In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position wherever possible•and if such position is no longer in existence then to a substantially equivalent position ", See Matter, of The, Chase National Bank of the City of New York, an Juan, Puerto Rico, branch, 65 N. L R B 827, 11 See Matter of Crossett Lumber Co, 8 N L R B 440, 497-8 898 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD The undersigned believes that the respondents' illegal conduct constitutes a threat to the broad rights of employees under the Act. Because of the respond- ents' unlawful conduct and its underlying purposes and tendencies, the under- ,i;igned is convinced that the unfair labor practices found are persuasively related to the other unfair labor -practices proscribed and that danger of their'coinmis- sion in the future is to be anticipated from the course of the respondent's con- duct in the past 18 This is especially true because the discharge of, and the refusal to reinstate, employees because of union membership and activity, striking as it does at their means of livelihood, "goes to the very heart of the Act." The preventive purpose of the Act will be thwarted unless the undersigned's -recommendations are coextensive with the threat.. In order, therefore; to make -effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby to minimize industrial strife which burdens .and obstructs commerce, and thus effectuate the policies of the Act, the under- signed will recommend that the respondents cease and desist from in any man- ner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. Local Union No. 164 of the International Association of Cleaning and Dye House Workers, -affiliated with the ,American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Flory Morelli, Helen Gilasevitch, George Magakis, Leo Kelly, Bernard Czankner, Anthony Marciano, John Morelli, Frank McAndrew, and Leroy Sims, and each of them, and thereby discouraging membership in a labor organization, the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are 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. RECOMIII-ENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed hereby recommends that the respondents, The Electric City Dyeing Co., a corporation, and Fred L. Nuttall and Catherine A. Nuttall, Co-partners, doing business us The Electric City Dyeing Company, Scranton, Pennsylvania, their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in the above-named or any other labor organiza- ion by discharging or refusing to reinstate any of their employees or in any other manner discriminating In regard to their hire or tenure of employment or any term or condition of employment ; and is N. L: R. B. v. Expreaa Publishing Co, 312 U. S. 426, 61 S. Ct 693 is N. L. R. B v. Entiii'itle Manufacturing Com'p'any, 120 F. (2d) 532, 536 (C. C. A. 4), .enf'g 23 N L. R B 1058. THE ELECTRIC CITY DYEING COMPANY 899 . (b) In any other manner interfering with, restraining, or coercing their em- ployees in the exercise of their right to self-organization, to form labor organiza- tions; to join or assist Local Union No. 164 of the International Association of Cleaning and Dye House Workers, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing or 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. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Flory Morelli, Helen Gilasevitch, George Magakis, Leo Kelly, Bernard Czankner, Anthony Marciano, John Morelli, Frank McAndrew, and Leroy Sims , immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privi- leges; in the manner set forth in "The remedy" ; (b) Make whole in the manner set forth in "The remedy," Flory Morelli, Helen Gilasevitch , George Magkais, Leo Kelly , Bernard Czankner, Anthony Mar- ciano, John Morelli, Frank McAndrew , and Leroy Sims, for any losses of pay they have suffered by reason of the respondents ' discrimination against them ; (c) Post at their plant in Scranton, Pennsylvania, copies of the notice attached hereto marked- "Appendix C." Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by the respondents' representative, be posted by the respondents immediately upon receipt thereof, and maintained by them for sixty (60) consecutive days there- after, in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondents to in- sure that said notices are not altered , defaced, or covered by any other material ; and (d) File with the Regional Director for the Fourth Region within ten (10) days from the date of the receipt of this Intermediate Report, a report in writing setting forth in detail the manner and form in which the respondents have com- plied with the foregoing recommendations. It is further recommended that unless on or before ten (10 ) days from the date of the receipt of this Intermediate Report, the respondents notify said Regional Director in writing that they will comply with the foregoing recom- mendations, the National Labor Relations Board issue an order requiring the respondents to take the action aforesaid. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board , pursuant to Section 203.38 of said Rules and Regulations , file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies . of a statement in writing setting forth such excep- tions to the Intermediate Report or to any other part of the record or proceed- ing (including rulings upon all motions or objections ) as he relies upon, to- gether with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period, file an original and four' copies' of a brief in support, of the Intermediate Report. Immediately upon the filing of such stateiuent ,of exceptions and/or briefs , the party or counsel for the Board filing the same shall „ serve a copy thereof upon each of, the other 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as re- quired by Section` 203.65. As further provided in said Section 203.39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to' the Board within ten (10) days from the date of service of the order transferring the case to the Board. Dated July 9, 1947. A. BRUCE HUNT, Hearing EramUner. APPENDIX A It has come to the attention of your management that a number of employees are dissatisfied with-the policies of this company. A meeting is shortly to be held for the purpose of doing something about it. It is with a feeling of the greatest regret that we find you have not seen fit to present your problems to your manage- ment for consideration instead' of going over- our heads to'an outsider. Any- employee supporting this proposed program is committing an unfriendly act; towards this management inasmuch as the problems involved have not been. presented to the management for discussion and consideration. There , is not-any- attempt to restrain any employee from supporting the proposed program or at- tending -the meeting and we simply wish to outline for you the program which, the management has been in-the process of forming for several months and which, while not completed will be placed in effect during the next few months= and yon can, then judge for yourselves whether or not the majority of you wish to support this proposal or have confidence in your management to satisfactorily meet the- changing conditions without outside 'Interference. The- fact that your meeting- is soon•to be held has forced the hand of the management to disclose plans that have been under consideration for many months, some of which are not yet completed. - In the first place your management is scheduling work so that we can ultimately- go on to a five day week, 10 hour day working schedule. A comparison of wage rates shows that there has been since 1941 an increase in comparable actual wage rates of-from 45 to 55% and also the payment of time and one half over forty hours additional to this. You are all aware of the fact that in every business there are certain jobs which are more important, require more training, and pay- more money than others. To this end a schedule of starting wages, promotional increases and top wages for any and every job in this company has been prepared, and is available for inspection by any employee on application to the plant super- intendent. This takes the guess work out of your job and it the job you are working on does not have a top high enough for your ambitions you are entitled,, to transfer and have preference in so doing to another department that has a, higher top wage. Do not forget in making comparisons of wages that up to now,. this company has provided constant work (and overtime) •every week of the year and that many of the high wages being paid by other companies are for seasonal employment or employment that is only as constant as weather conditions permit, and only on a straight forty hour basis-no overtime. Secondly: For quite some time, your company has been negotiating with the Prudential Insurance Company and there has been since last Wednesday and ,is. at this very moment and there will be in the future in effect a program which provides a thousand-dollar Life Insurance Policy and $5.00 per day hospitaliza- tion for each employee. Everyone here present and on the payroll has this pro-. THE ELECTRIC CITY DYEING COMPANY 901 tection and it does not cost any one of you a RED CENT The entire expense of $1.36 per month for each employee, is paid by the management because we feel that it is a real need for the peace of mind of a great many of you. Thirdly : As soon as adequate steam supply has been provided -so that you have- the tools with which to work without hindrance and delay an incentive bonus- plan will be installed so that every individual in this plant will be able to make more money for increased production above the fair standards which will be set. -Nobody-can get the boiler room finished any faster or get this plan installed any earlier. The incentive plan is the modern way of increasing earnings by greater- efficiency, and which is the only practical and logical way. Fourthly : Starting this year , all employees after one year of service , whether- weekly or hourly workers , are to receive one weeks vacation with pay at the- base rate of forty hours This is a forward step and gives an employee a reward ,of free time for faithful attendance to his duties. Other improvements which cannot at present be disclosed are scheduled for the betterment of working conditions , but you surely must realize that all im- provements, especially in these days of shortages , must of necessity proceed- slowly. Perhaps, some of you without having any knowledge of, or any interest in the costs of production are misled by the apparent cost of improvements which- have been and are now under way . Do not forget for one second that if your management was interested in profit, regardless of anything else , these very improvements would not havd been nude, and fully 40% of you-employees would never have been hired. The large portion of the profit of this company in the past few years has gone. into the expansion program which is in full evidence and which is responsible- for all of you newer employees being on the company payroll. Don't forget that the O P A. still controls our prices which have not been increased since 1929: The policy of this company toward its help has been a very tolerant one and -many of you have not been and are not now fully cooperating in all ways to pull ?your weight in the boat . Remember that you will get out of this job. or any. other job only what you put in it. If you are dissatisfied with your job in this Com-- pany-why not quit and give a break to someone else who really wants to work? There are at present over 40 names on our files of applications for employment in this+ Plant. It is an act of the greatest ingratitude to go over, the head of your management and take your problem to an outsider to whom you will pay a trib- ute from your weekly pay . We urge each one of you to.consider very carefully 'before you give this proposal any encouragement by your attendance at this meet- ing and remember that there is much more to be gained from friendly manage-. ment than there is from one whose hand may be forced unfairly in this manner, APPENDIX B Fred L. Nuttall THE ELECTRIC CITY DYEING CO. Wholesale Garment Dyer Scranton, Pa. APRIL 27, 1946. Mr, SAMUEL ROACH : A sign in front of our premises carried by one of our employees reads, in part, as follows: 809095-49-vol 79-58 -902 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD THE ELECTRIC CITY DYEING COMPANY ON STRIKE This is far from the truth. Employees reporting for work on last Friday April 26 were stopped and told -there was not any work. This again is utterly false. The Electric City Dyeing Company is'open for business and as far as this Compapyis concerned, no labor dispute exists. This-Conipany was not, appt6 'hed prior to Thursday afternoon April 25th by any employee. - group of employees or organizing official of any kind relative to any possible labor relations matter Up to the present time, the door of this Company has been open during working -hours for any employee to return to work, and will remain so until Wednesday morning, May 1st at 8 o'clock A M. After this time, all absentee cards will -be removed from the time rack and association as an employee with this Com- pany will be terminated as of that moment. Rehiring of any former employee at any time will be at the discretion of this management. FRED L. NUTTALL, The Electric City Dyeing Coinpany. APPENDIX C NOTICE TO•ALL-EMPLOYEES Pursuant to the recommendations of a Hearing Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local Union No. 164 of the INTERNATIONAL ASSOCIATION OF CLEANING AND DYE HOUSE WORKERS, affiliated with the AMERICAN FEDERATION OF LABOR, or any other labor organization, 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. WE WILL OFFER to the employees Damed below illllpedlate;and,ftl^l',ri'i.l staj^e- in^iit'to` then foriiiei or substantially equivalent positions without'-preju- dice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of,. the discrimination. Flory Morelli Anthony Marciano Helen Gilasevitch John Morelli George Magakis Frank McAndrew Leo Kelly Leroy Sims Bernard Czankner All our employees are free to become or remain members of the above-named ,.union or any other labor organization We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any THE ELECTRIC CITY DYEING COMPANY 903 -employee because of membership in or activity on behalf of any such labor -organization. THE ELECTRIC CITY DYEING Co. a corporation , and FRED L NUTTALL and CATHERINE A. NUTTALL Co-partners , doing business as THE ELECTRIC CITY DYN.ING COMPANY, Employer. By ------------------------------ (Representative) (Title) Dated -------------------- NOTE.-Any of the above -named employees presently serving in the armed -forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof , and must not be altered , defaced, or covered by any other material.