Waldoroth Label Corp.

In the Matter of WALDOROTLH LABEL CORPORATION and BOSTON PRINT- ING PRESSMEN'S UNION No. 6( AND BOSTON PRESS ASSISTANTS' UNION No. 18, AFFILIATED WITH INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS' UNION OF NORT>-I AMERICA, AFL Case No. 1-CA-420.Decided October 5, 1950 DECISION AND ORDER On June 911950, Trial Examiner Irving Rogosin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. The Board 1 has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as indicated below. In finding that the Respondent violated Section 8 (a) (1) of the Act, we do not rely on the action of Respondent's treasurer, Jack Waldman, on April 21, 1949, in temporarily removing the employees' time cards from the rack. We do not agree with the Trial Examiner that Waldman's prior acts of interrogation and threats of reprisal alone afford sufficient basis for finding that his purpose in removing the time cards was in effect to convey to the employees a threat of loss of employment for union activity. The Remedy As recommended by the Trial Examiner, we shall order the Re- spondent to offer Charles Hoffman reinstatement with back pay from the date of his discharge. Since the issuance of the Trial Examiner's Intermediate Report, however, the Board has adopted a method of 1 Pursuant to the provisions of Section 3 (b) of the Natiohal Labor Relations Act, the Board has delegated its powers in connection with this Ease to a three -member panel [ Chairman Herzog and Members Houston and Styles]. 91 NLRB No. 122. 673 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD computing back pay different from that prescribed by the Trial Examiner.2 Consistent with that new policy we shall order that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discrimi- natory action to the date of a proper offer of reinstatement. The quarterly periods, hereinafter called "quarters," shall begin with the .first day, of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which this employee would normally have earned for each quarter or portion thereof, his net earnings,3 if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. We shall also order the Respondent to make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due 4 ORDER. Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Waldoroth Label Corpora- tion, Boston, Massachusetts, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Boston Printing Pressmen's Union No. 67 and Boston Press Assistants' Union No. 18, affiliated with International Printing Pressmen and Assistants' Union of North America, AFL, or any other labor organization of its employees by discriminating in regaard to the hire and tenure of employment or any term or condition of employment; (b) Interrogating its employees concerning their union affiliation, activities, or sympathies, threatening and imposing economic reprisals against its employees, withdrawing privileges previously enjoyed by its employees because of their union membership or affiliation, promis- ing economic benefits to said employees as a means of inducing them 2 F. TV. Woolworth Company, 90 NLRB 289. s By "net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where, which would not have been incurred but for this unlawful discrimination , and the consequent necessity of his seeking employment elsewhere . Crossett Lumber Company, 8 NLRB 440. Monies received for work performed upon Federal , State, county , municipal, or other work-relief projects shall be considered earnings . Republic Steel Corporation v. N. L. R;'73., 311 U. S. 7. 4 F. TV. Woolworth Company, 90 NLRB 289. We agree with the Examiner. that the Respondent 's action in requiring Gooltz and Ginsberg to give up the keys to,the plant, was discriminatory . However , as recent changes in the Respondent 's method of operation have deprived this privilege of any practical signifiean^e, we will not order the keys restored. WALDOROTH LABEL CORPORATION 675 to renounce or refrain from becoming members of the Union, or in any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form labor organizations, to join or assist Boston Printing Pressmen's Union No. 67 and Boston Press Assistants' Union No. 18, affiliated with Inter- national Printing Pressmen and Assistants' Union of North America, AFL, 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, or.to refrain from any or all such activities except to the extent authorized by the provisions of Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Charles Hoffman immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges; (b) Make whole said Charles Hoffman, in the manner set forth in the section of this Decision and Order entitled "The Remedy," for any loss of pay he may have suffered by reason of the Respondent's discrimination against him; (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order; (d) Make whole Respondent's pressroom employees for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to 'the amount they normally would have earned as wages from the date of the discriminatory reduction of the workweek to the date of the re- instatement of the workweek which each of said employees worked prior to April 21, 1949, or until such time as the Respondent would have reduced the workweek for nondiscriminatory reasons, as pro- vided in the section of the Intermediate Report entitled "The Remedy," less his*itctual earnings during such periods; (e) Restore the smoking privileges enjoyed by the pressroom em- ployees prior to April 21, 1949, and thereafter discriminatorily withdrawn by the Respondent; (f) Post copies of the notice attached to the Intermediate Report and marked Appendix A.5 Copies of said notice, to be furnished by E Such notice shall be amended by striking from the caption thereof the words "The Recommendations of a Trial Examiner" and substituting therefor the words "A Decision and Order" In the event this Order is enforced by a United States Court of Appeals, 91 7 5 7 2-51-vol. 91-44 - 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Regional Director for the First Region, shall, after being signed •by the Respondent's representative, be posted by the Respondent im- mediately upon receipt thereof, and maintained by it for sixty (60) 'consecutive days thereafter, in conspicuous places, including, all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (g) Notify the Regional Director for the First Region in writing within ten (10) days from the date of this Order what steps the Respondent has taken to comply therewith. INTERMEDIATE REPORT .AND RECOMMENDED ORDER Mr. Leo J. Halloran, for the General Counsel. Mr. M. Carl Cushner, of Boston, Mass., for the Respondent. STATEMENT OF THE CASE This complaint, issued December 6, 1949, by the Regional Director for the First Region ( Boston, Massachusetts), on behalf of the General Counsel of the National Labor Relations Board,' against Waldoroth Label Corporation, herein called the Respondent, is based upon a charge duly filed on April 22, 1949, by Boston Printing Pressmen's Union No. 67 and Boston Press Assistants' Union No. 18, affiliated with International Printing Pressmen and Assistants' Union of North America, affiliated with the American Federation of Labor, herein called the Union. The complaint alleges that the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8 (a) '(1) and (3), and 2 (6) and (7) of the National Labor Relations Act (49 Stat. 449, as amended by 61 Stat. 136), herein called the Act, Copies of the charge, the complaint, and the notice of hearing were duly served upon the parties. Specifically, the complaint alleges, in substance, that since about April 18, 1949, the Respondent: (1) Has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed by Section 7 of the Act, by inter- rogating employees regarding their union affiliation and activities, threatening and actually imposing economic reprisals, promising economic benefits in return for their renunciation of the Union, withdrawing privileges formerly allowed, reducing the weekly hours of employment, and changing the hours of work with resulting inconvenience to its employees, all because of their union affiliation and adherence; (2) on or about April 21, 1949, discharged and has since re- fused to reinstate Charles Hoffman because of his union affiliation and adherence, thereby discouraging membership in the Union ; and (3) by the foregoing con- duct has engaged in unfair labor practices within the meaning of Section 8 (a) ( 1) and (3) of the Act. In its answer filed on December 12, 1949, the Respondent admits the jurisdic- tional allegations of the complaint, but generally denies the remaining allega- there shall be inserted before the words "A Decision and Order" in the notice as so amended, the words "A Decree of the United States Court of Appeals Enforcing." 1 Reference to the General Counsel , unless otherwise stated or required by the context, is to his representative at the hearing; reference to the Board , to the National Labor Rela- tions Board. WALDOROTII LABEL CORPORATION 677 tions, including those relating to the commission of unfair labor practices. Fur- ther answering, the Respondent admits that it terminated the employment of Charles Hoffman on the date in question, but alleges that said Hoffman had been employed on a temporary basis, and that his employment was terminated in ac- cordance with that arrangement. Pursuant to notice duly served , a hearing was held at Boston, Massachusetts, from December 20 to 22, 1.949, inclusive, before Irving Rogosin, the undersigned Trial Examiner, duly designated by the Acting Chief Trial Examiner. Full op- portunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence pertinent to the issues, was afforded all parties. The General Counsel and the Respondent were represented by counsel and participated fully in the hearing. No appearance was entered for the Union. At the commencement of the hearing, counsel for the Respondent waived his motion for specifications, with the understanding that if, at the conclusion of the General Counsel's case in chief, the Respondent required further time within which to meet the evi- dence adduced, counsel might so move. No such motion was thereafter made, nor was it contended that the Respondent had not been afforded a reasonable oppor- tunity to meet the issues raised or the evidence adduced. At the close of the hearing, counsel for the Respondent renewed a motion, made earlier, and on which ruling had been reserved , to strike certain testimony . Ruling thereon was reserved for disposition in this Report. The motion is denied for reasons appearing hereinafter. Motion by the General Counsel to conform the plead- ings to the proof with respect to formal matters, not affecting substantive issues, was granted without objection. Counsel for the parties declined the opportunity afforded them of arguing orally upon the record, and -of filing proposed findings of fact and conclusions of law. Advised of their right to file briefs, the General Counsel filed a brief on January 27, 1950. No brief has been received from the Respondent. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Waldoroth Label Corporation, a Massachusetts corporation, having its office and place of business in Boston, is engaged in the printing of cloth and paper labels. Principal raw materials, consisting of ink, paper, and cloth, aggregate more than $25,000 anuu,ally, of which approximately 50 percent is shipped to the Respondent at its plant from points outside the Commonwealth of Massa- chusetts. Of its finished products, amounting in the aggregate to more than $50,000 annually, approximately 60 percent is shipped from the Respondent's plant to points outside the Commonwealth. The Respondent concedes that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Boston Printing Pressmen 's Union No. 67 and Boston Press Assistants' Union No. 18, affiliated with International Printing Pressmen and Assistants' Union of North America , affiliated with the American Federation of Labor, are labor organizations admitting to membership employees of the Respondent. 678 DECISIONS-OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Interference, restraint,, and coercion 1. Interrogation; threats of reprisal Thursday morning, April 21, 1949, the Respondent received a letter from the Union, claiming to represent its , pressroom employees, and requesting a conference. At about 11 o'clock that morning, Jacob D. (Jack) Waldman, treasurer of the Respondent, came out of his office into the pressroom, union letter in hand, and proceeded to question each of the employees in turn. Among those so interro- gated were Max Gooltz, Salvatore DeAngelo, Michael Ginsberg, Leo Stone, Walter O'Keefe, and Charles Hoffman. The general tenor of the interrogation was the same in each instance. Each employee was asked whether he had joined the Union ; each admitted he had. Despite Waldman's categorical denial that he had questioned the men regard- ing the Union, he admitted that he had talked to most of the pressroom employ- ees at the time, that he had shown or read them the union letter, and asked whether there was any truth in it or whether the Union was just "trying to fish for . . . information." When they acknowledged that they had joined, he thanked them, he testified, without further comment. When O'Keefe, an apprentice pressman, admitted that be had joined the Union, Waldman pointedly asked him how many children he had. O'Keefe said that he had four, whereupon.Waldman asked him whether he wanted to lose his job. O'Keefe replied that he did not think he would lose his job, but Wald- man rejoined, "We'll see about that." According to Waldman's version of this conversation, which he placed at some time in the afternoon rather than in the forenoon, as O'Keefe testified, O'Keefe called Waldman over to his press, and, after volunteering that he had joined the Union, mentioned the size of his family, and expressed the hope hat he would not lose his job. Waldman testi- fied that he told O'Keefe not to worry, that as far as Waldman was concerned, he could continue to work there. O'Keefe, who.like other witnesses called by the General Counsel, testified in response to a subpena,impressed the undersigned with his earnestness and sincerity. His testimony in general appeared to be influenced by an obvious, though understandable, reluctance to furnish evidence which might prove detri- mental to the Respondent. This apparently arose from the circumstance that, in September 1949, some months after the events related herein, Waldman had provided him with part-time employment, necessitating the creation of a new job, in effect, to enable O'Keefe to attend day sessions at the business school he had previously attended evenings while working days. It is not likely, therefore, that O'Keefe would have discharged the debt of gratitude he obvi- ously felt by deliberately distorting the facts regarding this encounter. More- over, the broadly hinted threat of reprisal to O'Keefe is consistent with the Sanctions later imposed upon the employees because of their union adherence. In view of these circumstances, and the general lack of credibility of Wald- man's testimony, the undersigned credits O'Keefe's version of the episode 2 Unless otherwise indicated all references to Waldman hereafter are to the Respondent's treasurer, as distinguished from Robert ( Jimmy) R'aldman , his brother, an employee whose status is discussed elsewhere. WALDOROTH LABEL CORPORATION 679 Soon afterward, according to O'Keefe's undenied testimony, Robert Waldman, known to the employees as Jimmy,' brother of Treasurer Jack Waldman, ques- tioned O'Keefe in an effort to discover who had initiated the organizational ac- tivity. O'Keefe said he did not know. Jimmy persisted, asking whether it was Alike Ginsberg. O'Keefe repeated his previous answer. Later that morning, Hoffman, O'Keefe, and Stone observed Treasurer Jack Waldman near the tinge-card rack at the farther end of the pressroom. Because of the position of the rack behind a pillar, which also supported the time clock, these employees were unable to see what Waldman was actually doing. Almost inunediately, however, Waldman started for his office carrying some time cards. Upon the basis of this observation, these employees testified that Waldman had removed the cards from the rack. Waldman firmly denied that he had removed the time cards on the day in ques- tion or at any other time during the 14 years he had been engaged in business. The undersigned, however, is unable to credit his denial in view of the posi- tive, more credible, persuasive, and mutually corroborative testimony of Hoff- man, O'Keefe, and Stone, particularly in the light of Waldman's prior conduct that morning. Nor is the testimony of Waldman's brother, Jimmy, that he cus- tomarily removed the time cards on Thursday, the end of the workweek, to en- able the bookkeeper to compute the payroll, sufficient to overcome the weight of the more credible testimony offered by the employees mentioned. It is improb- able, as was suggested at the hearing, that these employees had mistaken Jimmy for his brother Jack. For one thing, the brothers bore slight, if any, resemblance to each other. For another, since, according to Jimmy Waldman, it was he who customarily collected the time cards, a departure from this practice would have been more likely to make an impression on those who had observed the unusual occurrence. 3 According to both Treasurer Waldman and his brother. Jimmy, the latter was merely a proofreader, and possessed no supervisory authority. Jimmy, however, testified that, under President Carver. he was "in charge of maintaining the sequence of work" so as to achieve the utmost efficiency and economy. Despite testimony of pressroom employees that they regarded him as their foreman, Jimmy not only denied that he was a foreman, but also maintained that there was no foreman in the pressroom unless Carver, himself, were to be so regarded, and that he, Jimmy, merely relayed orders and instructions to the employees from Carver and Treasurer Waldman, to whom the pressmen were directly responsible. While denying that he had authority to grant employees time off, he testified that he initialed their time cards when they punched out, after permission for time off had been granted. The record discloses further that Jimmy was consulted about pro- duction problems, the amount of work on hand from time to time, and similar matters, and, as will later appear, in connection with the layoff of Hoffman. Although thoroughly familiar with all the presses and machines, most of which he had formerly operated, he performed little or no production work during the period involved herein. In contrast to the pressmen, who were paid at an hourly rate, lie was paid a weekly salary, and re- ceived no overtime pay. On the basis of his family relationship to the Respondent's treasurer. he was declared ineligible to vote in the election later held. Upon the entire record, the undersigned is convinced that, at the very least, he had authority in the interest of the Employer responsibly to direct the work of the pressmen, in the exercise of which lie required the use of independent judgment. Moreover, in addition to his close family relationship to the treasurer, he enjoyed the confidence of management, as revealed by the fact that lie was shown the union letter, and consulted with respect to the layoff of Hoffman. Finally, the remarks attributed to him are so entirely similar to those uttered by responsible management representatives both before and afterward, that it is evident that he was held out by the Respondent and reasonably regarded by the employees as speaking for management. The undersigned concludes and finds that his statements and conduct are clearly imputable to the Respondent. See Taylor Manufacturing Co., Inc., 83 NLRB 142. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned finds, substantially in accordance with the testimony of the employees mentioned, that soon after questioning the employees, as already re- lated, Treasurer Jack Waldman removed their times cards from the rack. Wald- man's actual reason for doing so can merely be surmised. The incident, however, occurring as it did on the heels of the interrogation of the employees, and the thinly veiled threat of reprisal to O'Keefe, was undoubtedly calculated to inti- mate to the employees that their jobs were at stake, and it is evident that they so regarded it. The fact that the time cards had been replaced in the rack by the time the employees left for lunch could scarcely have dissipated the effect of the Respondent's conduct. At about 11: 30 that morning, Treasurer Waldman asked Gooltz for the return of the latter's keys to the plant, remarking, "You are not being discharged for this, I just want the keys, that is all." The same clay, and under substantially the same circumstances, Waldman collected Ginsberg's keys to the plant. In his discussion with Gooltz, Waldman notified him that as of Friday morning, next day, the plant would "go on a 40-hour week, 8 hour day." After lunch, Jimmy Waldman questioned Hoffman, too, in an attempt to find out who had started the Union at the plant. Hoffman acknowledged that he had joined the Union, but denied that he knew who had started it. At about 3 o'clock that afternoon, Treasurer Jack Waldman again approached Hoffman, and sought to confirm whether he had joined the Union. Hoffman agreed that lie had. Later that afternoon, between 3 and 4: 30 p. m., DeAngelo, Gooltz, and Stone were summoned separately to the office, where each was again questioned by Treasurer Waldman, in the presence of President Joseph Carver, comanager with Waldman of the Respondent's enterprise.' According to the credited testimony of DeAngelo, Waldman asked him what "the story [was] about the Union." DeAngelo replied that there was no "story" but that the men all wanted to join the Union. Asked whom he meant by "all," DeAngelo replied, "Everybody in the shop." Again Waldman attempted to ascertain who had "started the union," insinuating that it had been Ginsberg. This DeAngelo denied. Waldman then questioned DeAngelo regarding his reasons for joining the Union. Asked whether he was dissatisfied, DeAngelo complained that he had been receiving only $1.05 an hour as compared with the prevailing union rate for pressmen of $1.79- an hour." Waldman asked DeAngelo whether he considered himself a pressman. DeAngelo said he did. During Gooltz' interview, Waldman who, according to Gooltz, was "pretty mad," stated that he "wouldn't have any Union in the place and that he would sell the place rather than have anything like that." Demanding what benefit Gooltz could derive from the Union, and reproaching him for not presenting his grievances to him, Waldman told Gooltz that even "if this thing did come to a settlement," the Respondent would be unable to pay the wages the men would demand. With Gooltz, too, Waldman endeavored to discover who had begun the union activity, and again suggested that it had been Ginsberg. Gooltz said that he did not know, but conceded, in response to Waldman's inquiry, that he would not tell him even if he did. According to Gooltz' undenied testimony, Carver, too, attempted to learn who had initiated the Union at the plant. Asked 4 Ginsberg, according to his credited and uncontradicted testimony, had been similarly questioned in the office, sometime before noon, when he had had occasion to go there in connection with a job on which he had been working. 5 This figure, appearing as $1.75 at this point in the record, is obviously a typographical error, as shown by the correct figure appearing elsewhere in this witness' testimony. The figure, $1.75, is hereby corrected to read $1.79. WALDOROTH LABEL CORPORATION 681 whether lie would divulge the identity of the person if he knew it, Gooltz agreed that he would not. Leo Stone's interview was substantially similar to those to which DeAngelo and Gooltz had been subjected. Asked how the men had gone about joining the Union, Stone said that they had called on the union representative in a group. During the interview, Stone mentioned that the union rate for the press lie was then operating was $2.20 an hour. Carver interposed that the Respondent could pay no such rate. When Stone observed that the Respondent's competitors were paying that rate, Waldman asked him whether he thought he could get another job elsewhere. Stone said he believed he could, to which Waldman rejoined, "Why don't you quit?" Stone made no reply. Before the interview was over, Carver announced that thereafter the hours would be from 8 a. in. to 12 noon and from 1 p. in. to 5 p. in. with a 10-minute rest or smoking period at 10 a. m. and another at 3 p. m.° In addition to the events related above, Hyman Wexler testified that he, too, had been questioned by Waldman on the afternoon, and possibly at noon, of the same day as the other employees. Although in some doubt that lie had been ques- tioned at noon, he testified positively that in the afternoon Waldman sent for him and asked whether he had joined the Union. When lie replied that he had not, Waldman, according to Wexler, promised to pay him more money if he would re- frain from joining. Wexler testified that he made no reply. Waldman categorically denied that he had spoken to Wexler at all. Disparag- ing Wexler's duties as primarily those of a janitor and errand boy,' Waldman clearly implied that he would hardly have condescended to discuss a matter of such importance with a mere menial. Wexler, on the other hand, while admit- ting that he performed "general work," which encompassed Waldman's descrip- tion of his duties, maintained that on occasions he had also worked on a printing press and gold stamping machine, rolled ribbon used in making labels, and hung printed labels to dry. However, in contrast to regular pressmen, who were paid at an hourly rate, Wexler received a weekly salary of $32. He was excluded from the unit and held ineligible to vote in the Board-conducted election later held, on the ground that he devoted only an insignificant portion of his work- ing time to that of a pressman. These factors, in themselves, afford slight basis for deciding whether Wald- man actually made the statements ascribed to him by Wexler, since it is doubtful that it occurred to Waldman at the time to consider whether Wexler appropriately belonged in a unit of production employees. Wexler's testimony, it is true, is con- sistent with the credited testimony of other employees who attributed similar remarks to Waldman. Yet, since Waldman had already admitted that he had talked to other employees the same (lay, though denying the coercive statements attributed to him, there appears to be no convincing reason for Waldman to have denied so emphatically that he had even talked to Wexler. Moreover, Wex- ler's failure to mention his alleged interrogation at noon, in his direct exami- nation, and his uncertainty, on cross-examination, that he had been questioned on that occasion, raise some doubt as to the reliability of his testimony as to these incidents. His testimony suggests that he may have been the unwitting victim of wishful thinking inspired by discussions, he had doubtless heard, among the employees regarding remarks Waldman had, in fact, made to then). Although the matter is not altogether free from doubt, the undersigned concludes and finds ° Carver did not testify , and there was no showing that he was unavailable at the time of the hearing. 7 Wexler appeared to be at least middle-aged. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Waldman did not make the remarks attributed to him by Wexler on either of the two occasions. With respect to the individual interviews of the employees mentioned,' Wald- man admitted that, after consulting his attorney by phone, he summoned Gooltz, DeAngelo, and Ginsberg to his office and discussed the Union with each of them separately. According to his testimony, lie again showed them the union letter, and asked if it were true that they had joined the Union. When they affirmed that they had, he told them, in substance, that the decision was theirs, but that he wanted to make certain that they had reached it of their own accord, with- out having been influenced by promises of higher wages, shorter hours, improved vacations, sick leave, and other benefits, which, they had said, the Union held out, and which, Waldman told them, the Respondent would be unable to afford. In his discussion with Gooltz, Waldman testified, be reviewed business condi- tions at the plant, stressing the increased cost of operations, and observed, "if there's any increase in our cost it might mean that we would lose more orders than we have." To support his position, he showed Gooltz correspondence from customers complaining that Respondent's prices were too high. Waldman fur- ther testified that he also showed Gooltz a financial statement prepared by the firm's accountant, and invited Gooltz to call in an accountant to verify the state- ment, when.the latter said he was unversed in such things. Doubtless the matters about which Waldman testified were discussed with the employees mentioned, in greater or less detail. His denial, however, that he questioned them concerning their union activity, endeavored to discover who had initiated the union activity, and threatened to close the plant rather. than deal with a union, sounded hollow, insincere, and unconvincing in the light of his immediate reaction to the information that his employees had joined the Union, his interrogation earlier the same day, his thinly veiled threat of re- prisal to O'Keefe, and more significantly, the action taken by Waldman almost immediately afterward when he relieved Gooltz and Ginsberg of their keys to the plant, announced a change in working hours, elimination of overtime, and curtailment of the smoking privileges. When viewed against this background, the coercive statements imputed to him by the employees in the individual interviews form it plausible part of the other remarks admittedly made by Waldman. The undersigned, therefore, concludes that Waldman (lid, in fact, utter the remarks in these interviews attributed to him by Gooltz, DeAngelo, Ginsberg, and Stone. 2. Change in hours; reduction in overtime Reference has been made to the Respondent's announcement, on April 21, of the establishment of regular hours of work and the elimination of overtime. It is undisputed that, prior to that date, pressroom employees had been per- mitted to report for work at any time from 7 to 9: 30 in the morning, to take as long as they wished for lunch, and to leave early or work as late as 5:30 or later, depending on the work available. Thus, pressroom employees could come and go practically as they pleased, being paid, of course, at the hourly rate, for the actual number of hours worked shown by their time cards. Never- theless, under this lax and casual arrangement, most of these employees worked more than 45 hours a week, receiving time and a half for overtime in excess of 40 hours. s Waldman did not specifically mention in his testimony the interview of Stone, and the latter's testimony regarding this episode. stands uncontradicted. WALDOROTH LABEL CORPORATION 683 No sooner bad the Respondent learned of the affiliation of its employees with the Union, than it announced that thereafter the hours of work would be from 8 a. m. to 5 p . m., with 1 hour for lunch , a 5-day, 40-hour week, without further overtime. In general, work on Saturdays which had amounted to 5 hours pre- vious to April 21 was thereafter eliminated. Since then, according to the credited and undisputed testimony of the various employees involved, except for several Saturdays, and an occasional half hour of overtime during the week, overtime for pressroom employees had been virtually eliminated.' In an effort to justify the elimination of overtime, the Respondent introduced bookkkeeping records purporting to show a drastic decline in dollar volume of sales for the month of April as compared with March 1949. Figures for the first 6 months of 1949, covering six selected accounts, three of which, it maintained, were its largest customers, do indicate a sharp drop in April 1949. Obviously, however, these figures are not representative of total sales for the corresponding period, as will be seen from the compilation of sales for the same period." Since it was not contended that the decline which the Respondent experienced in April, and thereafter, was attributable to seasonal factors, it is improbable that the Respondent's decision, on April 21, to eliminate overtime resulted from an anticipated drop in sales, particularly since the Respondent could hardly have ascertained the total amount of sales for the month of April until the last day of the month. It should also be noted that while total sales for the months of January and February were roughly $3,500 and $2,800 less, respectively, than for the month of March, the Respondent had taken no steps to reduce or eliminate overtime during those months." It is further significant that on April 18, 3 days before the Respondent maintained it had decided that it would be necessary to eliminate overtime because of lack of orders, it had hired Frank Riccardi, a 9 Although the preponderance of the evidence establishes that the plant was ordinarily closed on Saturday during July and August 1949, Stone and O'Keefe both testified, without contradiction, that they worked several Saturdays during these months. Compare sales to the three largest accounts for the first 6 months of 1949 National 1949: Mattress Co. Rose Derry Co. Sealy, Inc. January----------------------.----- $141. a"8 $659. is $306. 79 February-------------------------- 101.73 955.52 691.93 March ---------------------------- 1, 085. 33 1, 337. 91 1, 309. 01 April ----------------------------- 234. 91 497. 47 1, 036. 56 May ------------------------------ 41. 58 361. 81 701. 51 June------------------------------ 352. 91 1,488. 42 993. 86 with total monthly sales for the corresponding period January---------------------------------- -------------- $ 13,500 February----------------------------------------- ------ 14,354 March --------------------------------------------------------- 17, 147 April ---------------------------------------------------------- 16,268 May ----------------------------------------------------------- 13,495 June----- ------------------------------------------------------ 13,396 Thus, while sales in April to the first two accounts represent a decline of more than 60 percent, and sales to the third, a drop of about 21 percent, compared to March, total sales for the same period declined only slightly more than 5 percent. " The undersigned has not overlooked the testimony that some 6 months before April 21, 1949, and again, according to Treasurer Waldman, some 3 months previous to that date, the men had agreed during slack periods , to eliminate overtime Saturdays, and weekdays after 5 p. in., to avoid any layoffs. Jimmy Waldman merely placed the period in 1948. Since these occasions obviously occurred considerably before January they are not relevant here . Gooltz, one of the oldest employees in point of tenure , fixed the period as about 6 months before April 21. Ginsberg testified that for it year before that date the least number of hours he had worked in any week was 47, the highest, 56. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD compositor, who remained in the Respondent 's employ until a week' after the elimination of overtime . Since , in the routine of the Respondent 's operations, the work of the compositor normally precedes that of the pressmen , it is highly improbable that the Respondent would have hired a compositor at a time when it was contemplating elimination of overtime because of hick of work.' More- over, each of the pressmen who testified confirmed that there had been no slackening of work on April 21, shortly before , or thereafter . Since it appears that the Respondent frequently manufactured large quantities of labels for later delivery, any decline in sales would not necessarily result in an immediate drop in production. The fact that the Respondent utilized the alleged decline in orders as an oc- casion for establishing new hours of work , which had little , if any, relation to the drop in orders, is further indication that the Respondent was motivated by the organizational activities of its employees rather than reasons of economic necessity . It should be noted that in summarily announcing the new hours of work and the reduction of the workweek , with resultant loss of earnings to the employees , the Respondent furnished them with no reason , and made no mention of the decline in orders as a ground for the action taken . This was in decided contrast to the Respondent 's attitude at least 6 months earlier, when it advised its employees that business had slackened , and obtained their approval of elinnina- tion of work on Saturday as a means of retaining its staff intact. When these facts are considered in the light of the Respondent 's activities, on April 21, discussed above, it becomes clear that the Respondent , in reduc- ing the hours of work by eliminating overtime, was motivated , not by consid- erations of economic necessity, but by a desire to punish its employees for join- ing the Union . The undersigned so finds. 3. Withdrawal of privileges Under the casual and informal arrangement which had prevailed before April 21., there had been no rule regarding smoking, and pressroom employees were permitted to smoke, without hindrance, except at their presses, whenever it did not interfere with their work, and provided they did not "overdo it." Thus, according to DeAngelo's uncontradicted testimony, "If you wanted to smoke, you just stopped your press and would go into the back room and smoke." Or, as Gooltz testified credibly, if the men who smoked "had to wait for a change or an O. K. or something they generally went out and had a smoke." Immedi- ately upon learning of the employees' union affiliation, Waldman announced that thereafter they would be permitted to smoke for 10 minutes in the morning and 10 minutes in the afternoon. That this policy was established in reprisal for their union activities is clearly evident. from Waldman's own testimony. He testified that previous to April 21, he had observed as many as half a dozen men at a time congregated in the back room smoking. When he asked why they were not working, they said they were waiting for a change. He pointed out that since the compositor was there with them, this could not be so, and directed the men to return to work, without reprimanding, censuring, or dis- ciplining them. "Of course," he testified, "I don't know what the buzzing was about, but after April 21st, I assumed it was because they had gone to the Union and perhaps were. discussing things here and there, so I said, `From here on , we'll make the smoking period 10: 00 to 10: 10 and 3: 00 to 3: 10 which 12 There was no showing that Riccardi had been hired to replace another compositor. WALDOROTH LABEL CORPORATION 685 will give you fellows equally as much as you had,' and to those that didn't take. the time off, I said, `I think you should go out and take your rest anyway.' 11 Although an employer's right to regulate the rest periods of his employees so as not to interfere unreasonably with production can hardly be gainsaid, it is abundantly clear that the Respondent, here, had at no time imposed any limitation upon their smoking, except to the extent already indicated, until it became aware of their organizational activities. It is clear from all the cir- cumstances which immediately preceded the announcement that the curtail- ment of these privileges was motivated solely by considerations of their union membership. The demand for the return of the keys to the plant clearly stems from the same motivation. In addition to Waldman, his brother, and Carver, Gooltz, and Ginsberg were the only employees who had been entrusted with keys. Ac- cording to Waldman, both of these employees were in the habit of reporting to work at 7 o'clock in the morning, and the first to arrive would open the plant. This enabled them to switch on a machine, which required several hours to heat, so as to be ready for operation by the compositors when they arrived at work at 8': 30 or 9 a. m.13 His reason for taking away their keys, Waldman testified, was that he "felt as long as they had joined the Union, perhaps there would be something that might boomerang. They might give the keys to the Union men or something. I don't want any trouble-break up the factory, come in when I wasn't there. I don't want any trouble from them, that's all, just protection." Elsewhere, Waldman testified, ". . . I wanted to make sure that the keys didn't get into the hands of anybody, or that they wouldn't-the boys themselves wouldn't cause any damage in the shop after we had left, after closing hours." Considering that Ginsberg had been in the Respondent's employ at least 7 years, and Gooltz, at least 10, and that, according to Waldman, they had had keys to the plant for between 3 and 5 years, the Respondent's conclusion that these employees were no longer to be trusted because they had joined the Union, speaks eloquently of its antipathy toward any self-organizational. activity by its employees. This action was obviously calculated to manifest the Respond- ent's grave displeasure, and it is evident that the employees so regarded it. That Waldman hastened to assure Gooltz, while demanding the return of the keys, that lie was not "being discharged for this," and later attempted to pass off the incident jocularly, are further indications that Waldman was aware of the seriousness with which the employee had regarded the action. 4. Further acts of interference, restraint, and coercion The Union filed a petition for certification with the Regional Office on April 21, 1949, the day on which the events already related occurred. After the usual proceedings, the Board, on July 1, 1949, issued its Decision and Direction of Election, pursuant to which an election was held on July 22, 1949. Sometime between the date of the filing of the petition and the date of the election, not further established by the record, Jimmy Waldman, in- a conversation- with Ginsberg at the litter's press, told him, "Mike, you are a fool. Why 'don't you drop out of it?" The reference was obviously to the Union. Ginsberg answered, 13 Although, according to Waldnuln, an automatic electric tine-clock device was later installed , which automatically turned on this machine at a previously selected hour, con- cededly . this was not his reason for collecting their keys. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "I will be the judge of that." Jimmy turned to DeAngelo, who was working at the press next to Ginsberg, and asked, "Am I right?" DeAngelo, pretending not to have overheard the conversation, replied, "I don't know what you are talking about."" On at least two or three occasions during the salve period, the first occurring a week or 10 days after April 21, Edward Dorfman, clerk and stockholder of the Respondent corporation, engaged Gooltz in conversation at the latter's press'" On these occasions, according to Gooltz' credible and undisputed testimony, Dorfman told Gootz, "You have got a good steady job here, go in there and write your own ticket." It is clear from the tenor of these remarks, and the Respond- ent's opposition to the Union, as expressed in the interrogation of its employees, the threats of economic reprisal, and the sanctions imposed on the employees because of their union affiliation, that Dorfman's remarks were intended, and reasonably construed by Gooltz, as an offer of inducement to renounce the Union and vote against it in the election. The undersigned so finds. During one of these discussions, shortly before the election, Dorfman also remarked to Gooltz, "If your men sign up, -do you think that we could keep Neil Doherty the way he has been acting" Gooltz replied, "I have nothing.to say about that. That isn't up to me." 16 The record convincingly establishes that the Respondent, by its ofileers and agents, interrogated its employees regarding their union membership; threatened, and actually resorted to reprisals therefor by establishing new hours of work, eliminating overtime, curtailing the smoking privileges which they formerly enjoyed, and depriving certain employees of keys to the plant with which they had formerly been entrusted; and promised employees inducements to renounce the Union. . It has been well established by a long line of precedents, that all of the fore- going acts constitute interference with, restraint, and coercion of employees in the exercise of the rights guaranteed under the Act, and the undersigned, there- fore, finds that by engaging in the said acts; the Respondent has violated Section g (a) (1) of the Act. 14 This finding is based upon the credited testimony of DeAngelo. Although testifying as a witness for the General Counsel, in response to a subpena, Ginsberg was not asked about nor did he testify regarding this incident. Apparently in the mistaken belief that DeAngelo had attributed this statement to Treasurer Jack Waldman, counsel for the Respondent elicited a denial of this conversation from him. Jimmy Waldman, however, was not asked about and did not deny making the statement attributed to him by DeAngelo. 11 Dorfman was not called to testify on behalf of the Respondent, and there was no show- ing that he was unavailable at the time of the hearing. In addition to holding the office of clerk of the corporation, Dorfman was the owner of 20 percent of the common stock. He was generally understood by the employees to be "one of the partners" of the Respondent. Although acting as a salesman at the time, he had, according to the testimony of Gooltz and other pressmen , formerly worked on the presses and run a cutting machine. During the period here involved, he had issued instructions and orders to the pressroom employees, and had previously "[run] the pressrooni while Jimmy Waldman was serving in the armed forces," and, in July 1949, "while Jimmy . . . was on vacation.". In view of all the sir. cumstances, and, particularly since the remarks expressed by Dorfman were consistent with and reflected the views of management with regard to the employees' organizational activity, the undersigned concludes that Dorfman was held out by management and reason- ably regarded by the employees as speaking for the Respondent, and, hence, a person for whose acts the Respondent may be held liable. The Respondent's motion to strike the testimony regarding statements by. Dorfman, ruling on which was reserved at the hearing, is therefore, denied. 16 The significance of Dorfman 's remark will become more apparent in the later discussion of Hoffman ' s discharge. WALDOROTH LABEL CORPORATION 687 B. Diserimination in7, regard to hire and tenure of employment Charles Hoffman had first been employed by the Respondent as a pressman in. 1038 or 1939. After working several months he was laid off during a slack period, and obtained employment elsewhere. In 1947, he returned to work for the Respondent, again working several months, after which he left to open a phonograph record shop. On March 18, 1949, he reentered the Respondent's employ and worked until April 21, 1949, when his employment was terminated under circumstances related hereinafter. During the 2-week period before his termination he had joined the Union. Jinmty Waldman patronized Hoffman's shop from time to time, and soon after the first of the year, 1949, Hoffman began to complain to him about business, and asked Waldman about the prospect of a job with the Respondent. Waldman offered him no encouragement until late in February, when he suggested that Hoffman call on his brother, Jack. Hoffman took this advice, but learned that there was no work available at the time. At the beginning of March, Jinnmy told Hoffman that he believed there was work for him, and again advised him to see his brother. As a result of this, Hoffman was hired on March 18. Since there is a conflict as to whether Hoffman was hired on a temporary, basis, the circumstances leading up to his employment will be detailed. Accord- ing to Hoffman, he called on Waldman some 2 or 3 weeks before he was hired, and was referred to Jimmy. When Jimmy told him that business was slow at the time, Hoffman asked him to phone him as soon as work became available. Hoffman remained at the plant for' a while, talking to some of the men. As lie was about to leave, he encountered Jack Waldman, Carver, and another man whom he could not recall. Tlie men were on their way to the bank, and, at \\`aldman's invitation, Hoffman joined them, accompanying them down the elevator and into the street. During this interval, the subject of wages was brought up, and Hoffman said he would expect about $1.50 an hour, which Wald- man rejected as "way out of line." The men parted on that note. Hoffman testified that he heard nothing further until Friday morning, March 18, 1949, at about 9 o'clock, when Treasurer Waldman telephoned him at his home to come to work. Hoffman asked whether he could come in the following Monday so that he conljl make arrangements in the meantime to have someone take care of his store. Waldman, however, insisted that he come in at once and report to him before going to work. Hoffman then arranged to have his sister' in-law take over the store and went to the plant. When Hoffman reported to Waldman, the latter asked him what wages he expected. Hoffman suggested $1.50 an hour,, but Waldman, stating that the Respondent could not pay that rate, offered him $1.20 an hour, assuring him of a steady job as long as work was available. As an inducement to accept the lesser rate, Waldman told him that when work slackened, the Respondent would retain Hoffman in preference to Doherty, because of the latter's "illness" and lack of dependability. Hoffman accepted and went to work. According to Waldman's version, the episode which Hoffman placed as 2 or 3 weeks before his employment, actually- occurred on the day before he was hired, Waldman testified that he met Hoffman'. in the waiting room outside his office, as testified by Hoffman, while Waldman was on his way to the bank with Carver, Walter Herman, identified later, and Samuel Larnkin, not other- wise identified in the record. According to Waldman, Hoffman told him that he had. just been told by Jimmy that there was "a little work," and had referred Lim to Waldman. Apparently anxious to get to the bank, Waldman suggested 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Hoffman accompany them. As they were walking, Hoffman asked, "What do you think, Jack?" According to Waldman, he replied, "Charlie, I don't know, but if there is anything-it may be for a week or two or three, the way you have always worked-but call me in an hour or so, and I will tell you the answer." When Hoffman brought up the question of pay, Waldman asked what he had in mind. Hoffman mentioned a rate of about $1.35 an hour. To this, Wald- man testified, he replied, "Look; Charlie, what's the use of talking about pay. I don't even know if there is anything there for you. If there is, then we'll talk about salary." Hoffman agreed that that was fair, and according to Waldman, told him that he was "up against it," that business was bad, and that he had three children, and would appreciate anything Waldman could do. Waldman agreed to do what he could, and suggested that Hoffman call him later. About an hour later, Waldman testified, Hoffman phoned to receive his answer. Waldman told him, ". . . we've got a little work now, and if you want to come in tomorrow you can come in and work as long as the job lasts. It might be a week or two or three. . . Hoffman asked him when he was to report for work, and Waldman said he could come in whenever he wished. Hoffman then told him that he would ,have to arrange for his sister-in-law or someone else to take care of his store, and that he would be unable to come in until 10: 30 or 11 o'clock. Waldman told him that would be satisfactory. According fo Wald- man, Hoffman reported for work the next morning, March 15, before Waldman arrived. It will be seen that, apart from their disagreement as to the dates the events occurred, Waldman and Hoffman were in disagreement as to the crucial matter of whether any employment offered Hoffman was to be of a temporary nature. In view of Jimmy's testimony, that he had advised Hoffman to see Jack Wald- man as far back as late February, and again, the beginning of March, and in view of the general credibility and plausibility of Hoffman's testimony, the undersigned finds that the discussion occurred at or about the time indicated by Hoffman rather than Waldman. It is undisputed that there had been some discussion regarding wages. The crucial fact, however, which Waldman sought to establish by his testimony, was that Hoffman had been put on notice at the time, that any employment he received would be temporary The reiteration of this throughout Waldman's testimony appears unconvincing if not contrived. Walter Herman's attempted corroboration seems scarcely more persuasive. Although the matter could hardly have been of more than passing concern to him, he undertook to testify, more than a year later, that he had overheard Waldman tell Hoffman, "I don't know of anything I can give you of a permanent nature. If you call me per- haps I can give you a day's work, a week's work, three weeks." Herman was the clerk, manager, and a stockholder, with a 20 percent interest, in Central Acceptance Plan, Inc., a finance company, which shared office space with the Respondent, and in which Jack Waldman and Carver were the two principal officers, and owners of 30 percent each of the stock. Under these circumstances, Herman's desire to be helpful to the Respondent is understandable but uncon- vincing. The undersigned is unable to place any substantial reliance on this purported corroboration. Hoffman's testimony, too, however, regarding Walchuan's assurance that he would be retained in preference to Neil Doherty in the event of a layoff, did not, at first, seem too convincing. Doherty had been employed as a pressman for 14 years. Although he had absented himself from work without permission WALDOROTH LABEL CORPORATION 689 for extended periods during which, according to Waldman, he was known to have gone on alcoholic sprees, lie was, while on the job, apparently an experi- enced and satisfactory worker. It is entirely likely, however, that the Respond- ent had begun to tire of Doherty's derelictions, with which Hoffman had been familiar by reason of his previous employment with the Respondent, and in the light of this, the assurance, which Hoffman testified Waldman had given him, becomes plausible. Note, too, the undenied remark attributed by Gooltz to Dorf- man, mentioned eleswhere, "If your men sign up, do you think that we could keep Neil Doherty the way he has been acting." Moreover, Waldman admitted that Doherty had been the subject of some discussion with Hoffman, in a con- versation several weeks after Hoffman had started work. According to Wald- man, Hoffman asked him, on this occasion, how long the work would be likely to last, and whether, when work slowed down, Waldman would let Doherty go first. Waldman testified that he told Hoffman he would not, but that if Doherty left voluntarily, and work were still available, he would retain Hoffman. It seems entirely unlikely that Hoffman would have brought up the subject in that way unless it had been previously discussed between them. The undersigned, therefore, finds that Waldman did, in fact, make the statement to Hoffman regarding Doherty at the time, and in substantially the manner Hoffman testified. Hoffman continued to work without incident until Thursday, April 21. On that day, as has already appeared, the Respondent first learned that its em- ployees, had joined the Union. The course on which the Respondent, through Treasurer Waldman, and to a somewhat lesser extent, Carver and Jimmy Wald- man, immediately embarked, has already been related. The incident of the removal of the time cards has also been mentioned. Later that afternoon, when Hoffman went to the drinking fountain near the time-card rack, he noticed that his time card had been removed. In the light of what had occurred earlier that day, it is not surprising that he went back later, ostensibly to get a drink, but more than likely to see whether his time card was still out of the rack. Ile discovered that it had been returned with his time computed and pay envelope attached. At about 5: 30, as he was preparing to leave, the switchboard operator notified him that Waldman wanted to see him. Presently, Waldman came out of his office and gave him his check covering his earnings for the week, ending with the close of business that day. Normally, employees were paid in cash, but, according to the Respondent, it did not usually keep sufficient cash on hand, and, therefore paid Hoffman by check. At Hoffman's request, either Waldman or his brother, Jimmy, who was present, cashed the check, and Hoffman re- paid Jimmy a balance of 525 on a loan Jimmy had made him. According to Jimmy, Hoffman thanked him, and said he would see him Saturday when he called for some records Hoffman had ordered for him. As Hoffman left, Jack Waldman remarked, according to Hoffman, "Go to the Union and get your $1.79." After trying, unsuccessfully, to reach the union representative that night, Hoffman went to union headquarters next morning, Friday, and, with the union representative, filed a charge at the Regional Office the same day. Notice of the filing of the charge was received by the Respondent, next day, Saturday, April 23. Apparently neither Jack Waldman nor Carver were at the plant. Although Jimmy Waldman signed the receipt for the registered mail notice, he disclaimed any knowledge of its contents until the time of the hearing. Assuming, as he testified, that he left the unopened letter on his brother's desk, he could hardly have failed to note the return address. Moreover, in view of the fact that his brother had shown him the original union letter, and since he 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had not only been aware of, but actually participated in some of the events which occurred thereafter, it is altogether improbable that he did not, at least, surmise its contents and notify his brother of the arrival of the letter. In any event, Jimmy called at Hoffman's shop later that day, ostensibly to pick up the phonograph records. According to Jimmy, Hoffman asked him if things had picked lip at the plant. Waldman replied that they had not, but told Hoffman to keep in touch with Jack if he wished any more work. Hoffman, Jimmy testified, said that he would. Hoffman denied that he engaged in any such conversation. Since Hoffman had filed a charge only a day earlier, in which he claimed to have been discriminatorily discharged, it is altogether improbable that lie would have questioned Waldman about the state of work only 2 days after lie had been discharged allegedly for lack of it. Moreover, his version of what actually took place, incidentally not specifically denied by Jimmy, is more credible and consistent with the prior events. In addition to denying that Jimmy had had any records on order with him, Hoffman testified that, after waiting until the two men were alone in the store, Jimmy asked, "Who started that business up the shop?" obviously referring to the union activity. Hoffman replied that he (lid not know, but told him, "I got a rotten deal up there." Hoffman's version of this occurrence, including the questioning by Waldman, is credited. The Respondent contends not only that Hoffman was hired as a temporary employee, as he had been in the past, but that the decline in orders after his employment necessitated his layoff. Parenthetically, Waldman testified, it could have managed without him, but afforded him employment out of consideration for his financial plight. According to Jimmy Waldman, there had been a tem- porary rush of orders in March, which had enabled the Respondent to offer Hoffman temporary employment. When these orders were completed, it no longer needed his services, and therefore laid him off. It should be noted, inci- dentally, that, although the Respondent attempted to treat his termination as a layoff, he was, in fact, discharged. There is, of course, disagreement as to whether Hoffman had actually been hired on a temporary basis. The fact that he had worked for the Respondent for relatively short periods in the past is not determinative of whether he was hired on the same basis on this occasion. Nor does the fact that Hoffman had been maintaining an enterprise of his own, warrant the conclusion that lie was seeking only temporary employment at this time. On the contrary, the testi- mony of Jimmy Waldman, himself, discloses that Hoffman had told him that lie had been considering closing the store, or putting someone in charge, be- cause business was poor. As a matter of fact, in his eagerness to indicate how desperate Hoffman's plight was at the time, Jimmy testified that Hoffman bad also told him that he had been operating a laundry route, and that he could not "make a go of it." It was, therefore, apparent to Jimmy, as Hoffman spe- cifically told him, and as Jack Waldman doubtless learned, as well, that Hoff- man was seeking to return to his former trade, Hoffman's credited testimony, regarding his discussion with Waldman at the time he was hired, in which Waldman assured him of a steady job as long as there was work, and promised to let Doherty go before laying Hoffman off, convinces the undersigned that he was hired to work as long as work was available for him. Waldman's testimony, that Hoffman was notified in advance of his impending discharge, appears too contrived to be convincing. Waldman testified, as did his brother, that on Monday morning, April 18, after reviewing the work on WALDOROTH LABEL CORPORATION 691 hand, it was decided to let Hoffman finish out the week and lay him off. Wald- man then instructed Jimmy to notify Hoffman to that effect, and told Jimmy that because of the slack in work, the plant would be closed next day, April 19, .a legal holiday in Massachusetts. According to Jimmy, he told Hoffman the same day that "work was very slow and, in fact, we were going to be closed Tuesday and by the end of the week he would probably get laid off unless there was a lot more work." Hoffman, Jimmy testified, made no comment ex- cept that he hoped things would pick up. Jack Waldman also testified that the same day, pursuant to his usual custom of notifying the bookkeeper on Monday of each week of any change in the status of employees, he instructed her to prepare Hoffman's pay check on Thursday, April 21. In addition, according to Jack Waldman, at about 5: 30 p. m. that day, Mon- day, April 18, he took it upon himself to ask Hoffman whether Jimmy had told him that "work is petering out and that we are not open tomorrow and that Thursday will be your last day." Hoffman, Waldman testified, agreed that he had been so informed. Although he admitted that Jimmy had told him that the men would not be working April 19, Hoffman emphatically denied that he had been notified at any time in advance that he faced the prospect of a layoff. Despite the pur- ported corroboration, by Jimmy and the bookkeeper, of Waldman's testimony, the evidence regarding prior notice to Hoffman impressed the undersigned as artificial and contrived. It will be noted that, although Waldman testified that he had instructed his brother to notify Hoffman that he would be laid off at the end of the week, Jimmy testified that he told Hoffman that he would "probably get laid off" at the end of the week "unless there was a lot more work." Since, however, Jack Waldman had made no such qualification, this patent discrepancy creates serious doubt as to whether any such discussion took place, and whether either of the Waldmans actually notified Hoffman that he would be laid off on Thursday." The testimony of both Waldnians was evasive and lacking in candor, and gave every appearance of having been contrived after the discharge in order to lend plausibility to the Respondent's position. Jimmy, in particular, was evasive and contentious, frequently professing ignorance of relatively unimportant matters with which he was undoubtedly familiar. Thus, for example, he testified that he did not know what office his brother held in the corporation ; that he did not know whether pressmen were paid at an hourly rate, although, as part of his regular duties, he collected the time cards in preparation for the payroll. At first, he denied any knowledge of the union activities until Friday, the day after most of the events occurred. Later, when it developed that his brother had shown him the union letter the clay it was received, he corrected himself, and conceded that he had learned of them the same day. The undersigned has, therefore, been obliged to reject in large measure their testimony, even where allegedly corroborated by others, whose testimony has been found similarly unreliable. In denying that he had told Hoffman at the time of his discharge, "Go to the Union and get your $1.79 an hour," Waldman volunteered, "I never knew what the Union wage was." Whether or not this was actually true, this gratui- tous remark is characteristic of his testimony. The fact is that prevailing wage rates had been discussed at some length that very day, during the personal interviews in Waldman's office, and that the figure $1.79 had actually been mentioned to Waldman by DeAngelo. The events of that day clearly demon- 917572-51-vol. 91-45 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strated Waldman's disapproval of his employees' conduct in joining the Union, and the remark attributed by Hoffman to Waldman is entirely consistent with Waldman's threats of reprisals earlier the same day. Most significant, however, if the testimony of its witnesses is to be believed, is the length to which the Respondent claimed to have gone to notify an employee that he was to be laid off in accordance with an arrangement made at the time he had been hired. From the Respondent's standpoint, this should have been merely a routine layoff. Yet, according to the testimony of Waldman, he not only held a conference with Jimmy to decide whether Hoffman should be laid off at the end of the week, instructed Jimmy to relay the decision to Hoffman, and the bookkeeper to make up his terminal pay, but also personally undertook to make certain that Hoffman had been so advised. The evidence is completely unconvincing. Upon the basis of the foregoing, the undersigned concludes that the Respondent did not notify Hoffman of its decision to lay him off on April 18, or at any time prior to the date of his discharge. Finally, the Respondent sought to rely upon the decline in sales in April as a ground for Hoffman's discharge. Analysis of the volume of the Respondent's sales for the pertinent periods, already discussed elsewhere, in connection with the reasons advanced for elimination of overtime, wholly fails to convince the undersigned that the decline in sales was a substantial factor in its decision to discharge Hoffman. It should be noted, too, that despite the substantial drop in sales for the months following Hoffman's discharge, no other employees were discharged or laid off during that period for that reason. The most persuasive factor, however, in reaching the conclusion that Hoffman was not laid off for economic reasons, is to be found in the employment of Barney Goldstein as a regular and perment employee, shortly before the Respondent discharged Hoffman allegedly for lack of work. Late in 1948, the Respondent had entered into an arrangement with Goldstein, the terms of which are not revealed in the record, whereby he was permitted to use the premises, presses, and facilities of the Respondent to do commercial printing for his own customers. Although Goldstein occasionally did some commercial printing for the Respondent, he was not directly employed by it. The work done for Goldstein's own customers was billed under his own firm name, Globe Printing Company; that done for the Respondent, under its own name. On about April 7, according to the Respondent, it hired Goldstein as a regular, full-time pressman at an hourly rate of $1.60, 40 cents more than Hoffman had been receiving. Goldstein, however, for reasons not explained in the record, did not begin to punch a time card until Friday, April 15, 1949. It is unlikely that between April 7, accepting the Respondent's testimony as to when Goldstein first went on its payroll, and April 18, the date on which, the Respondent con- tends, it had decided to lay off Hoffman, business had deteriorated to the extent that it became necessary to terminate Hoffman, especially, in the absence of any evidence of the volume of sales between April 7 and April 18. Moreover, despite the substantial decline in sales after April, the Respondent continued to retain Goldstein in its employ without interruption until the hearing. Goldstein, whose past experience had been limited to commercial printing, involving a substantially different process than the printing of cloth and linen labels, as assigned to the very press which Hoffman had been operating at the time of his discharge. Yet, the record clearly establishes that Goldstein lacked sufficient experience to operate that press, as is shown by the undisputed testimony of Gooltz that he "broke in" Goldstein on the press Hoffman had previously operated. No satis- WALDOROTH LABEL CORPORATION 693 factory explanation was offered by the Respondent for replacing Hoffman, an experienced and satisfactory pressman, with Goldstein, a relatively inexperi- enced operator in the special process involved, as a regular full-time employee. When these facts are viewed against the background of the Respondent's entire course of conduct that day, including the interrogation of the employees regarding their union membership, the threats of discharge, reduction of hours, withdrawal of privileges, and the other conduct set forth, culminating in Hoff- man's discharge, the conclusion that Hoffman was discharged, not because of the alleged lack of work or because he had been hired on a temporary basis, but because of his union membership, becomes irresistible. It is, of course, no answer to say that other employees who had joined the Union were not laid off or discharged. The fact is that they were subjected to other forms of reprisal such as the elimination of overtime and the with- drawal of privileges. True, Hoffman had not distinguished himself in any way as a union member, and there was no showing that he had been instrumental in organizing the employees. As a matter of fact, it would appear from the interrogation of the employees that the Respondent suspected Ginsberg of hav- ing been the union protagonist. The answer to Hoffman's selection as a target for this type of reprisal is to be found in the fact that, as the most recent employee, he was more vulnerable to discharge than the other pressroom employees, most of whom had been employed for a number of years, and who had afforded no convenient pretext for discharge. Manifestly, the Respondent assumed that the action taken with respect to Hoffman would suffice as an object lesson to the others. On the basis of the foregoing and the entire record, the undersigned con- cludes and finds that the Respondent discharged Hoffman on April 21, 1949, because of his membership in the Union, to discourage membership therein, thereby violating Section 8 (a) (3), and by the foregoing, as well as the other acts of interference, restraint, and coercion found above, has violated Section 8 (a) (1). IV. THE EFFECT OF THE UNFAIR LA13OR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that by discharging Charles Hoffman on April 21, 1949, because of his membership in the Union , the Respondent has discriminated in regard to the hire and tenure of his employment thereby discouraging member- ship in the Union. It will therefore be recommended that the Respondent offer the said Charles Hoffman immediate and full reinstatement to his former or substantially equivalent position ' without prejudice to his seniority and other rights and privileges and make him whole for any loss of pay which he may 17 See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have suffered by reason of the Respondent's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the Respond- ents offer of reinstatement, less his net earnings during said period." It has further been found that the Respondent has discriminated against its employees by reducing the number of hours various employees had been work- ing prior to April 21, 1949, to 40 hours per week in order to discourage member- ship in the Union. Since the number of hours in excess of 40, which employees worked prior to April 21, 1949, varied among different employees, no determina- tion can be made at this time with respect to the amount of overtime such employees would have worked absent the Respondent's discrimination. The undersigned will, therefore, recommend that the Respondent be required to reinstate the workweek, including overtime, corresponding to that which each of the various employees had been working prior to April 21, 1949, and rehn- burse them for any loss of pay suffered by reason of such discrimination. In the event, however, the Respondent can satisfactorily establish that it would have reduced the weekly number of hours of work to 40 for nondiscriminatory reasons, at any time after the discriminatory reduction in the hourly workweek, it will be recommended that the Respondent should not be required thereafter to reinstate the workweek, which employees had been working before the dis- criminatory reduction, or to reimburse employees for hours in excess of 40 per week during such period. Since the issue is one which must necessarily be re- solved at the compliance stage of the proceedings, it will be recommended that the Board reserve the right to modify any order which may be entered to con- form to the facts developed in the compliance proceedings. It will also be recommended that the Respondent make said employees whole for any loss of pay resulting from the discriminatory reduction in hours of work from the date of said discrimination to the date of the reinstatement of the former work- week, or to the date on which the Respondent would have reduced the work- week to 40 hours for nondiscriminatory reasons, whichever shall occur first." It is apparent from the entire record that the commission of acts of inter- ference and other unfair labor practices may be anticipated in the future on the basis of the Respondents conduct in the past. It will therefore be recom- mended that the Respondent be ordered to cease and desist from in any other manner infringing upon the rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. Boston Printing Pressmen's Union No. 67 and Boston Press Assistants' Union No. 18, affiliated with International Printing Pressmen and Assistants' Union of North America, affiliated with the American Federation of Labor, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Charles Hoffman, and by discriminating with regard to the terms and condi- tions of employment of its other pressroom employees, thereby discouraging membership in a labor organization, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (a) (3) and Section 8 (a) (1) of the Act. 18 Crossett Lumber Company, 8 NLRB 440, 492-498. 19 See Westinghouse Pacific Coast Brake Co., 89 NLRB 145. WALDOROTH LABEL CORPORATION 695 3. By interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (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 [Recommended Order omitted from publication in this volume.]