Rozelle Shoe Corp.

ROZELLE SHOE CORPORATION 117 to the contention of the Intervenor and the Corporation, that for the purposes of this proceeding the Employer and the Corporation are separate employers within 'the meaning of the Act.5 Moreover, although the sawmill and creosote plant employees were formerly included in a single unit, it is clear from the record, includ- ing the Employer's tacit agreement with the Petitioner's unit conten- tion and its separate bargaining with the Intervenor, that the Em- ployer has now determined to pursue an independent course of action in labor relations matters. As the Employer has evidenced such in- tention at a time when it was not bound to group action by any agree- ment,e we find that a unit limited to employees of the Employer is appropriate. 'We find, accordingly, that all production and maintenance employees at the Employer's Olympia, Washington, sawmill, excluding office and clerical employees, professional employees, guards, and super- visors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act.8 [Text of Direction of Election omitted from publication in this volume.] 6 Ozark Central Telephone Company, 83 NLRB 258, The Clark Thread Company, 79 NLRB 542. The alleged possibility that the outcome of the present litigation between the Employer and the Corporation may reestablish the identity of the two operations as a single employer does not, in our opinion, constitute a valid basis for disregarding the facts as they presently appear. Nor, contrary to the contention of the Corporation and the Inter- venor, does It constitute a valid basis for denying to the sawmill employees the right pres- ently to select a bargaining representative of their choice. 6 See Economy Shade Company, 91 NLRB 1552 ; cf. Purity Stores, Ltd., 93 NLRB 199 ; Engineering Metal Products Corporation . 92 NLRB 823. 7 Pacific Metals Company, Ltd., 91 NLRB 696 9 The parties agree as to the composition of the appropriate unit. ROZELLE ST-10E CORPORATION and UNITED SHOE WORKERS OF AJIERIC.', CIO. Case No. 1-CA-886. July 14, 1952 Decision and Order On March 14, 1952, Trial Examiner Sidney Lindner issued his In- termediate 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. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of these allegations of the 100 NLRB No. 29. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [Chairman Herzog and Mem- bers Styles and Peterson]. The Respondent's request for- oral argument is denied inasmuch as the record, including the Respondent's exceptions and brief, ade- quately sets forth the positions of the parties. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, the conclusions, and recommendations of the Trial Examiner with the following additions., We agree with the Trial Examiner and find that the Respondent violated Section 8 (a) (1) of the Act by its conduct detailed in the Intermediate Report and violated Section 8 (a) (3) by discriminat- ing with respect to the hire and tenure of employment of certain named employees. As these employees were engaging in protected concerted activities, we find that Respondent's conduct with respect to them also independently violated Section 8 (a) (1) of the Act. Whether Respondent's conduct in this respect be regarded as a violation of Section 8 (a) (1) or of Section 8 (a) (3), we find that the same remedy is necessary to effectuate the policies of the Act. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Rozelle Shoe Corporation, and its agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Shoe Workers of Amer- ica, CIO, or any other labor organization of its employees by laying off, discharging. or refusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. ' The Trial Examiner recommended that Doris Isabelle be made whole for any loss of pay resulting from her discriminatory discharge on February 15, 1951 The Respondent on February 16, as found by the Trial Examiner , notified the Union that it would rein- state all the employees (including Isabelle ) on February 19, and the employees were so advised on the same day by the Union. However , Isabelle did not report for work on February 19, nor did she return to work until she was recalled the following month. We find, therefore , that she was offered reinstatement on Februaiy 16 and, that , having de- clined that offer , she is not entitled to back pay for the period after February 16. ROZELLE SHOE CORPORATION 119 . (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist United Shoe Workers of .America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in 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 to Anne Karamourtopoulos, Doris Gagnon, Dorilda Pacquette, Irene Harvey, Henry Hyder, and Clyde Wheeler, and each of them, immediate and full reinstatement to his or her former or substantially equivalent position without prejudice to his or her sen- iority or other rights and privileges. If any of the above named are at present serving in the Armed Forces of the United States, the Respondent shall offer such full reinstatement immediately upon his application, made within 90 days of his discharge from the Armed Forces, and shall notify him of his right to reinstatement. (b) Make whole Anne Karamourtopoulos, Doris Gagnon, Doris Isabelle, Dorilda Pacquette, Irene Harvey, Henry Hyder, and Clyde Wheeler in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of pay they may have suffered as a result of the Respondent's discrimination against them. (c) Upon request, make available to the Board or its agents for examination and copying, all payroll records, social security pay- ment records, and all other records necessary to analyze and ascertain the amounts of back pay due and the right of reinstatement under the terms herein recommended. (d) Post at its plant in Lawrence, Massachusetts, copies of the notice attached to the Intermediate Report and marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the, Respondent or his representative, be posted by the Respondent immediately 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 2This notice shall he amended by substituting the words "A Decision and Order" for the words The Recommendations of a Tiial Examinee ." in the caption thereof In the event that this Order is enforced by a United States Court of Appeals, there shall be substituted for the aforesaid words "Pursuant a Decision and Order," the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent violated the Act by discharging Helen Muldowney and by refusing after the strike to reinstate Jerry Cerullo. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon an amended charge filed by the United Shoe Workers of America, CIO, hereinafter called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the First Region (Boston, Massachusetts) issued a complaint dated July 3, 1951, against Rozelle Shoe Corporation, here- inafter called the Respondent, alleging that the latter had engaged and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U. S. C., Supp. 1, Sec. 141 et seq., hereinafter referred to as the Act. With respect to the unfair labor practices, the complaint alleged in substance, that: (1) On different dates in February and March 1951, the Respondent dis- charged nine named employees and thereafter failed and refused to reinstate the said employees to their former or substantially equivalent positions or em- ployment for the reason that they joined or assisted the Union or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; and (2) from about February 1, 1951, to date the Respondent by various enumerated acts interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. The Respondent's answer duly filed denied each and every allegation of the complaint. Pursuant to notice, a hearing was held in Lawrence, Massachusetts, from July 23 to August 9, 1951, inclusive, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. All parties were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue the issues orally upon the record, and to file briefs and proposed findings and conclusions. During the course of the hearing, various motions were made by counsel for the Respondent to dismiss the complaint on the merits. These motions, where not denied or granted at the hearing, are disposed of by the following findings and recommendations. Among other procedural contentions raised by the Respondent at the hearing is one attacking this proceeding on the grounds that the record being silent as to compliance of the Union with Section 9 (f), (g), and (h) of the Act and in the absence of a positive showing of compliance by the Union with the filing require- ments of such section of the Act, the Union was not a proper party in the pro- ceeding and is not entitled to any of the benefits 'of the Act. There is no'merit to this contention. See McComb Manufacturing Compan1y, 95 NLRB 596, and ROZELLE SHOE CORPORATION 121 cases cited therein. Neither the Supreme Court nor any court of appeals which has considered the question has ever held that the filing provisions of Section 9 (f), (g), and (h) go to the Board's jurisdiction. On the contrary the courts of appeals which have considered this issue have squarely held "that the Board was not required to allege and prove compliance, and that compliance with such provisions was not jurisdictional." N. L. R. B. v. Red Rock Co., 187 F. 2d 76, 78 (C. A. 5), cert. den. 341 U. S. 950; N. L. R. B. v. Wsltse, 188 F. 2d 917, 924, (C. A. 6) ; N. L. R. B. V. I. F. Sales Co., 188 F. 2d 931 ; N. L. R. B. v. Greensboro Coca Cola Bottling Co., 180 F. 2d 840, 844-845- (C. A. 4) ; B. B. Law and Son v. N. L. R. B., 192 F. 2d 236, (C. A. 10). A motion by the General Counsel made at the conclu- sion of the taking of testimony to conform the pleadings to the proof with respect to formal matters, such as dates, the spelling of names, and the like, was granted without objection. At the close of the hearing counsel for the Respondent presented oral argument to the Trial Examiner. A memorandum brief received from the General Counsel has been duly considered. Upon the entire record in the case and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Rozelle Shoe Corporation is a Massachusetts corporation having its principal office and place of business in Lawrence, Massachusetts, where it is engaged- in the manufacture of children's shoes. During the 12-month period preceding the hearing herein, which period is representative of all times material, the Respondent in the course and conduct of its business operations purchased in excess of $100,000 worth of raw materials, of which approximately $54,000 worth was shipped to its Lawrence plant from points outside the Commonwealth of Massachusetts. During the same period finished footwear was produced by the Respondent valued in excess of $100,000, of which its sales and shipments to' customers outside the Commonwealth of Massachusetts exceeded $100,000. The Respondent concedes and it is hereby found that at all times material herein it was engaged in interstate commerce within the meaning of the Act. U. THE LABOR ORGANIZATION INVOLVED United Shoe Workers of America, CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES 1 .A. Sequence of events 1. Interference, restraint, and coercion On or about November 15, 1950, Clyde Wheeler, an employee of Respondent whose alleged discriminatory discharge will be set forth in detail hereinafter, 1 While some consideration is given below to such matters as credibility of witnesses and conflicts in the evidence , for the most part, the findings in this section are made upon evidence which is undisputed , or is at variance only as to minor details, or are made without explanation upon the preponderance of the reliable , probative , and sub- stantial evidence in the record considered as a whole . It should be noted that there is considerable evidence , some of it highly contradictory in nature , concerning which I deem it either unnecessary to make findings in more detail than appear below, or to, make any findings at all. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD talked with Union Organizer Leo DePietro at the latter's office in Lawrence, regarding the Union and received several union membership cards which he distributed to other Respondent employees. Neither Wheeler nor the other employees to whom he gave cards did anything further about advancing union organization in the Respondent's plant at the time. Other than the intermittent distribution of union leaflets in front of the plant by DePietro it does not appear from the record that further attempts to organize the Respondent's employees were made until sometime in February 1951. Wheeler testified that at 10 a. m. on February 15, 1951, the morning rest period, he talked with Doris Isabelle, a lasting room employee whose duties required her to obtain from and deliver materials to different departments of the plant, about the possibility of a meeting of employees during the lunch hour to discuss organization among the Respondent's employees. Isabelle testified that while making'her rounds that morning she told a number of employees of her discussion with Wheeler and invited them to attend, if the meeting would be held. At about noon, while on his way to punch his time card out for lunch, Wheeler told Isabelle that the meeting would be held in the factory during the lunch hour and Isabelle in turn relayed such information to 1 girl in each of the plant departments. About 15 or 20 employees assembled in the lasting department' shortly after noon. Wheeler, who acted as chairman of the meeting, testified that among other things discussed was the formation of an independent union or affiliation with the Union herein. Unable to arrive at a decision the employees were asked to sign their names and addresses on slips of paper as an indication of their interest in organizing into a union which would assist them to obtain increased wages Wheeler testified that while the meeting was in progress Max Levin, the general manager and treasurer of Respondent, and Scurtis, the plant superin- tendent, remained in the packing room engaged in conversation and Anthony DeCesare, foreman of the lasting and making departments, stationed himself near the entrance door of the plant and observed the proceedings. It was rather unusual for Foreman DeCesare to be on the plant floor during the lunch hour, according to Wheeler, because on other workdays he regularly ate lunch with some employees in the stock-fitting room located across the corridor from the main plant. Wheeler's testimony regarding Foreman DeCesare's whereabouts during the lunch hour on February 15 was corroborated by Isabelle. Anne Karamourtopoulos, a packing room employee, who arrived at the meeting about 12: 30 p. m., corroborated Wheeler's testimony regarding Scurtis and Levin. In spite of Scurtis' explanation of the manner in which he regularly spends his lunch hour and the denials of Levin and DeCesare that they were on the plant floor between 12 and 1 p. m. on February 15, I find that they were there at some time during the said period. The complaint does not allege that Respondent engaged in surveillance. The above-noted incident, however, was fully litigated at the hearing and the General 2 The Respondent's plant is completely housed on one floor of a factory building approx- imately 100 yards long While there are several depaitments such as the lasting depart- ment, the stitching department, the cutting department, and the packing room, there are no partitions separating the departments. (This finding is based upon the personal observation of the Trial Examiner who, upon agreement of the parties and In the com- pany of the parties, visited the plant premises. ' This finding Is based on the testimony of Isabelle. Irene Dube, a former employee in the Respondent's packing room, testified that when she approached the assembled employees the talk was about obtaining more money and It was stated that If every employee in the plant signed his name to a paper a presentation would be made to Peter Scurtis, the superintendent, for that purpose. Dube's testimony in this regard Is not credited. ROZELLE SHOE CORPORATION 123 Counsel contends in his brief that Levin, Scurtis, and DeCesare spied on the employees' meeting held in the plant during the noon hour on February 15 and' thus engaged in surveillance in violation of Section 8 (a) (1) of the Act. Under the circumstances, the issue should be resolved. In spite of the fact, as Wheeler testified, that it was unusual for Foreman DeCesare to be on the plant floor .during the lunch hour and the further fact that Levin and Scurtis usually have lunch -in the downstairs cafeteria, evidence was developed that production problems arise from time to time which require discussion among Respondent's supervisors. It is entirely possible that this was such an occasion. Further- more, since the employees chose to hold their meeting on the plant premises, where the Respondent's supervisors had the right to be and indeed may well ,have been in the pursuit of their duties, I do not view this evidence as sufficient to support a finding that Respondent engaged in surveillance by spying on the employees' meeting. See H & H Dlanefacturing Company, Inc., 87 NLRB 1373; Borova Sportswear, Inc., 73 NLRB 1048. It is found, however, that Respondent did thereby obtain knowledge of its employees' concerted activities.` In addition to the signed slips obtained during the lunch hour meeting, the employees of the packing room were solicited to affix their signatures and home addresses to slips of paper to be used for the same purpose This activity took place between 2: 30 p. in. and 3 p. in. during working hours. All of the signed slips,were turned over to Wheeler who stated it was his intention to hold them until a decision was made regarding affiliation with the Union or organizing into an independent union. Scurtis testified that between 2 p. in. and 2: 30 p in. on February 15, as he was going by the packing room, he noticed employees passing slips to each other. He did not ask them what they were doing but went to Levin's office andinquired if any of the employees had permission to pass papers around the plant. Levin replied in the negative. Scurtis took no action thereafter regarding this matter, nor-did he testify as to what Levin told him he intended to do. Levin confirmed the fact that Scurtis made the inquiry as above noted. He testified that upon advising Scurtis that he had not given such permission be asked Scurtis if he knew what the slips were that were being passed around and who was participating in this activity. Scurtis, according to Levin, told him that employees Dube, Thelma Doucette, Claire Meisner, and Rose Beauchesne were engaged in this activity. Levin testified that in an effort to ascertain what the activity in the packing room was he called employee Beauchesne to his office. Levin asked what the slips were and was told that the employees were requested to sign their names and addresses on slips of paper which were to he taken to Scurtis and eventually to Levin in order to obtain a raise in wages. The word union, according to Levin, was not mentioned either by him or the employee. Levin stated he requested Beauchesne to obtain for him the slip which she had signed and she said she would. In view of the fact that upon being questioned Beauchesne stated that she had not signed a slip, and not satisfied with her replies, Levin interrogated several other packing room employees regarding this matter. He next questioned employees Dube and her mother, Adelaide Lavigne, along similar lines and received similar answers. He also requested employees Dube and Lavigne to obtain for him the slips they had signed because he wanted to see one. Levin stated none of the employees questioned brought a signed slip back to him. Lavigne, testifying as a Respondent witness, stated that Levin said "he * See John S . Barnes Corp . v. N. L. R B, 190 F. 2d 127 (C. A. 7), on the issue of obtaining knowledge of employee union activities without spying or espionage on the employees: - 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was surprised that [she] would sign a paper when he had just given [her] a raise a few weeks back." Levin testified he merely said he was surprised she would expect to get a raise when she recently obtained one. Since Levin admitted he was primarily interested in ascertaining why slips were being passed around the packing department and gave that as one of the reasons for interrogating the employees, it appears obvious that he would have made the remark as testified to by Lavigne. Lavigne's version of the conversation with Levin is credited. When he completed his interrogation of Dube and Lavigne, Levin called to his office employees Thelma Doucette and Claire Meisner for the same purpose. He testified that the latter two employees were questioned along the same lines as the other employees and offered similar answers. It is the contention of the General Counsel that the interrogation of the five packing room employees by Levin in his office regarding the signed slips of paper was in violation of Section 8 (a) (1) of the Act. Counsel for the Respondent claimed that since Levin did not have knowledge that union activity was going on in the plant at the time the interrogation took place and because Levin did not mention the term union to any employee, interference could not be spelled out under Section 8 (a) (1) of the Act. The Respondent further defends its action on the ground that it had every reason to suspect that the circulation of the slips of paper was part of a gambling venture and since a no-solicitation rule was invoked in an attempt to do away with gambling in the plant' the Respond- ent had the right to question the employees to find out precisely what was going on. Thus Levin testified that the Respondent "in its own way" on or about December 15, 1950, established that solicitation among the employees was not permitted without the consent of the "proper authorities." Levin stated he notified Superintendent Scurtis of the rule he established, and the latter wa's supposed to notify the plant foremen. At one point in his testimony Levin stated he also advised Foremen DeCesare, Goldman, and Marcinuk of the invocation of the rule. When questioned whether he had heard either the superintendent or the foremen inform their employees that a no-solicitation rule was in effect in the plant, he stated he had with the exception of Floorlady Pollano of the stitching room and Foreman Goldman in the, cutting room, but he accepted their statement that they had informed the employees in their respective departments of the existence of the no-solicitation rule. Scurtis testified that while he told the foremen about the promulgation of the no-solicitation rule, he admitted he did not hear the foremen transmit such information to the employees. Scurtis further admitted that'no notice was ever posted regarding this rule. Employee Doucette testified she was not aware of any plant rule prohibiting collections in the plant or the passing of papers around the plant by employees. She never saw any such rule posted nor was she advised by any foreman of the existence of the said rule. In fact Doucette testified that collections were made "lots of times" although not always during working hours. In view of the testimony of Doucette, which is credited in this regard, the admission of Scurtis that the "no-solicitation" rule was never brought to the attention of the employees by writ- ten notice, his further testimony that he did not know of any gambling going on in the plant, and the testimony of Levin that the rule was established by Respondent "in its own way," there appears to be some doubt that such a rule was ever promulgated by the Respondent. However, in the absence of evidence to the contrary it must be presumed and I find that such a rule was in existence. The fact remains that working time is for work and even if Respondent did not have a "no-solicitation" rule, it had the right to question employees as to their 6 The numbers racket and playing of baseball pools were the types of gambling allegedly taking place in the plant. ROZELLE SHOE CORPORATION 125 activities which lent the appearance of interfering with their regular duties during working hours. A further question arises at this point and that is to what lengths could Respondent pursue its questioning of employees in order to arrive at a determination of whether or not its rules were being violated and its work interfered with. As noted above, Levine first questioned employee Beau- chesne and determined from her that the papers passed around among the em- ployees were for the purpose of obtaining signatures in order to try to get a raise in wages. Levin testified he did not accept Beauchesne's explanation to him regarding the slips and therefore called into his office employees Dube and Lavigne. Levin stated they offered the same explanation as the previous em- ployee. Having received an identical explanation for the passing around of the slips from three employees was it reasonable for Respondent to continue its interrogation of employees or can it be said that at that point the further ques- tioning of employees regarding their concerted activities (which had already been ascertained from the three employees questioned) was discriminatory and an in= terference with the rights guaranteed employees under the Act. In view of the timing of the interrogations, several hours after Respondent observed the meeting of employees in the lasting room and as hereinabove found obtained knowledge of their concerted activities, the fact that questioning of other employees con- tinued even after Respondent had ascertained from the employees the reason for their signing the slips of paper and the further fact that within several hours after the questioning of the packing room employees the Respondent, as herein- after found, discriminatorily laid off a number of employees without warning or notice, the only reasonable inference that can be drawn is and it is hereby found that Respondent's motive in questioning its employees was for the purpose of finding out the extent of the employees' concerted activities in violation of Section 8 (a) (1) of the Act. At about 3: 30 p. in., Wheeler asked Scurtis for permission to leave the plant as he had to attend a National Guard meeting that evening and wanted to prepare for it.' Scurtis, according to Wheeler, asked if he knew anything about the slips of paper that had been passed around the plant. Wheeler replied he did not know anything about it. Scurtis then told Wheeler he would have a good job for him on the sole-laying machine either the following day or Monday of the next week. Wheeler asked Scurtis why he was being offered that job at that time. Scurtis answered that he liked Wheeler. Scurtis again inquired if Wheeler was sure he did not know anything about the slips of paper. Scurtis was unable to remember any conversation with Wheeler on February 15. He testified he did not even,know that Wheeler left the plant early that day. He stated Wheeler had asked about the sole-laying machine job previously on two or three occasions during the busy season. Upon further questioning he testified the busy season occurred between January and February, "especially the first week of February, very busy." Scurtis later,changed his testimony to state he had promised Wheeler the sole-laying machine job sometime around January and on two or three occasions prior to January. From his demeanor on the witness stand Scurtis impressed me as an unreliable witness. His testimony was marked by evasion and a lack of candor, on occasion his memory failed him completely and he answered questions by the statement "I don't remember," and, as will hereinafter more fully appear, was in many respects improbable and contradictory. Wheeler's testimony was straightforward, in the main was supported by convincing detail and corroborated by other convincing circum- stances in the record. He impressed me as a truthful witness. I find that the The regular quitting time at the plant was 4 :30. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD questions and statements attributed to Scurtis on February 15 were. made sub- stantially as testified by Wheeler. At the finish of business that day packing room employees Anne Karamourtop- oulos, Joyce Brunette, Lillian Hubbard, and Helen Muldowney , and employee Isabelle of the lasting department were told they were being laid off. These layoffs hereinafter found to be discriminatory will be discussed in detail. Muldowney testified that after she was laid off on February 15 by the packing room foreman, Atella, she sought out Scurtis and asked him the reasons for the layoff Scurtis, according to Muldowney, replied "there isn't enough work" and added he would get her back into the plant as soon as possible. Scurtis inquired if Muldowney knew who started the union talk in the plant. She replied she did not know. Scurtis asked Muldowney if she signed a slip and she did not reply. Scurtis did not remember talking to Muldowney on February 15. He testified -he did not lay her off nor did he know she was laid off and he did not see her that day. As previously noted, Scurtis was an unreliable witness. His denials regarding any conversation with Muldowneyy on February 15 are not credited. After leaving the plant that afternoon, Wheeler contacted Union Organizer DePietro and arranged to meet outside the National Guard Armory when Wheeler completed his drill activities. Wheeler testified that while in the armory that evening waiting for the drill to start, he was told that Adam Marcinuk, foreman of the stock-fitting room in the Respondent's plant and a lieutenant in the National Guard, wanted to see him. Marcinuk, according to Wheeler, told him that several female employees were laid off because of the activity of the afternoon in signing the slips of paper heretofore referred to. Marcinuk inquired if Wheeler knew anything about the activity and Wheeler replied he did not. Marcinuk commented that the "whole thing" was done wrong and because of the activities of the employees signing slips of paper that afternoon other employees were "going to get it ." Marcinuk told Wheeler "they have got you pegged as the No. 1 boy." Marcinuk also said that if the employees wanted a union all of them should have been notified and should have gone down to the Union in a group. Marcinuk, testifying regard- ing his version of the events that took place in the armory on February 15, stated that as a lieutenant in the National Guard he had received notice from headquarters , regarding the promotion of Wheeler from private to corporal. As Wheeler's superior officer, Marcinuk called him into the orderly room to advise him that he was now a corporal-his promotion having come through. In addition Marcinuk stated he explained to Wheeler the duties of a corporal and called to Wheeler's attention a matter he had receive notice of several weeks before, that is that Wheeler , who was an instructor in communications in the National Guard , had not submitted lesson plans to Marcinuk on the course of instruction for that evening . Marcinuk denied speaking to Wheeler about the Respondent's plant. Marcinuk was a belligerent, quarrelsome witness. His over-all testimony disclosed him to be an evasive and unreliable witness, I do not credit his testimony. Wheeler met DePietro as per their arrangements , told him his conversation with Marcinuk, and gave him the slips containing the signatures and addresses of employees signed in the plant that afternoon. They proceeded to Wheeler's home and attempted to reach by telephone several employees . Wheeler talked with Isabelle and was advised that as she was leaving the plant at the finish of the day's work she was told that she was no longer needed . Wheeler told Isabelle that he was with Union Organizer DePietro and instructed her to be at ROZELLE SHOE CORPORATION 127 the plant at 7 a. nm. the following morning when an attempt would be made to enlist the assistance of other employees to take concerted action by remaining out of work in protest against the Respondent's action in laying off the em- ployees. On February 16 employees Wheeler, Isabelle, and Henry Hyder met Union Organizers DePietro, McGuire, and Frasca and decided to place them- selves at different points in the yard in front of the plant where they could intercept employees going to work and advise them of Respondent's, action of the previous night in an effort to enlist their assistance in remaining out of work in protest of the layoffs.' While the employees were congregated in the yard, Scurtis approached Hyder and Wheeler and asked them what the matter was and why they were not going to work. They replied that they did not like what happened to the employees laid off the previous night. About 15-to 20 employees remained out of work and proceeded to the union hall after 7:30 a. in. A meeting was held and it was agreed among those present to have the Union represent them in their future talks with Levin. Union-authorization cards were signed by all of the employees. A committee was appointed to accompany the union organizers to see Levin with regard to getting all of the employees, those laid off as well as those who remained out of work in protest to the layoffs, back to work. During the afternoon of February 16 Union Organizers DePietro and McGuire, in the company of the employee committee, Wilson, Marion Farrah, and Perry, called at the plant and attempted to see, Levin to request reinstatement for all of the employees. Levin refused to allow the employee committee to sit in with the union organizers when- lie talked with them. As W result DePietro and McGuire talked with Levin and Scurtis in Levin's office. DePietro testified Levin agreed to reinstate the laid-off employees as well as the entire group of- employees who remained out of work that morning. Levin, testifying with respect to his version of the conversation with DePietro, stated he told DePietro he would take back only those laid-off employees for whom Respondent had work and as to those who had remained out of work, since their jobs were still available they were at liberty to come back and get them. DePietro, according to Levin, repeated his request three or four times that Respondent take back all of the laid-off employees and said that he would- give the Respondent 24 hours "within which to accomplish this, otherwise the Union would call upon the Teamsters Union to assist them in the dispute. With respect to the conflict in the testimony, it is interesting to note that Levin on cross-examination testi- fied lie told DePietro if the only remaining question of the dispute was the rein- statement.of the four girls laid off from the packing room he would put them back to work rather than go into further discussion or further argument with the Union regarding them. Levin s testimony was unconvincing. He did not impress me as a reliable witness and I do not credit his testimony herein DePietro and McGuire returned to the union hall, informed the employees that Levin had agreed to reinstate all of them on February 19, and requested them to report for work that day. On February 19 all of the employees except Isabelle" Karamourtopoulos, and striking employees Dorilda Paquette, Irene Harvey, Jerry Cerullo, and Henry Ryder were reinstated Karamourtopoulos was reinstated on February 20. On February 20, Muldowney was discharged and Wheeler was told there was no work for him. 'John Wilson, a nnitness called by the Respondent, testified lie was told by Wheeler that a number of the employees were going to remain out of work that day In protest ti the layoff of the fire employees the previous night because they had signed a petition to try to get a union into the plant B Isabelle did not repoi t for work on February 19 ; she was recalled in March `1128 DECISIONS- OF-NATIONAL LABOR RELATIONS BOARD Karamourtopoulos testified without contradiction that while she was working in the lasting room on February 21, Scurtis asked her about the Union and remarked that a few union cards had been turned into him by several of the employees. Scurtis inquired if she had signed a card and if she knew who had started the union organization in the plant. Scurtis told Karamourtopoulos if she removed her name from the union list "everything would be 0. K.11 with her. He also asked if any union people had visited her home. Earamour- topoulos testified further Scurtis said when he found out she and Helen Mul- downey had signed the petition for the Union he was. shocked since all of them were Greek and they had in effect "stabbed him in the back."' Karamourtopoulos testified that on February 22, while working in the supply room" with Levin and employee Tillie Brandon, Levin asked her about the Union. She testified further that Levin inquired if she had been visited by anybody from the Union; if she had signed a union card ; and if she knew who started the Union. He - stated if a union was successful in organizing the employees he would close the plant. Levin admitted he was working in the supply room with employees Brandon and Karamourtopoulos on February 22. Testifying regarding the conversation that took place in the supply room Levin stated employees B randon and Kara- mourtopoulos were discussing their respective ages when Karamourtopoulos turned to him and asked if he would guess her age, which he did. There was further conversation with respect to a personal matter of Karamourtopoulos and that was the extent of what they talked about. As already indicated Levin did not impress me as a reliable witness. His testimony herein was unconvincing. From her demeanor on the witness stand Karamourtopoulos impressed the undersigned as a reliable witness. She testified in a straightforward manner and in considerable detail. I credit her testimony and find that the conversa- tion with Levin on February 22 took place substantially as testified to by her. At 4 p. m. on February 22 the power in the plant was shut off and all of the employees were assembled in the lasting room where they were addressed by Levin for approximately a half hour. They were paid for the time thus spent. Levin had prepared a written speech with advice of his counsel. Levin testified that even though be held the speech in his hand did not read it, having previously memorized the contents. The following is the written speech of Levin : It has been called to iuy attention that some of the employees of the Rozelle Shoe have been contacted by the Union, pertaining to having a union factory. And while I cannot tell you not to join a union, that being your privilege, and that I cannot tell you I will fire you If you join a union, I do have the privilege of telling you I do not want a union factory: It appears that most of the employee's that are not satisfied are those earning the minimum wage, unfortunately all of us could not go through college, those that are working for the minimum wage are unskilled work- ers, and those jobs cannot pay more. I feel sure that you will find in union factories as well as non-union that there are other workers making the same wages, they cannot expect to 0In explanation of this, Scurtis testified that while Karamourtopoulos was working In the stitching room Forelady Pollano complained about her performance and said, "Take back your damn Greek girl." Scurtis remarked to Pollano "that she was stabbing him in the back" because Karamourtopoulos was of his nationality . Scurtis testified this incident took place in February 1951. Pollano stated it happened shortly after Kara- moutopoulos became employed in November or December 1950. I do not credit the testimony of Scurtis and Pollano. 10 The supply room is separated from the main plant and is one flight above it. ROZELLE SHOE CORPORATION 129 make the same weeks pay as you skilled workers that have worked at your jobs for years and have developed what I would call a "Trade" no doubt it took you years to gain this knowledge, in many instances you probably started at lower pay since the minimum at that time was much lower. I say to you people that are not satisfied with your jobs, try some other factory, probably you can do better elsewhere , we are doing the best we can and cannot pay more. We have been running pretty steady, most of you have pretty good jobs, in most cases our prices are equal to union prices, and in some instances "higher. The only benefits that the Union could gain for you if we were to sign a contract, which the Union would demand , is paid holidays and a weeks .vacation, but there is one catch to this even if we did sign the contract. This is a small business , even if we signed and promised to pay we would be unable to do so, because we do not have the money. I have had our ac- countant go over our books and also estimate what this additional burden would cost us and he advises me it would cost us between ten to fifteen thousand dollars, and that we would be unable to pay it. If you people doubt this and would like to satisfy yourselves I will make this proposition . You select a committee, you allow this committee to bring in any certified public accountant to check our books , at our expense, and if he tells you that we are financially in a position to pay this we will do so, however, I know the condition of this firm and know that we could not meet any obligation of this kind. You can rest assured that at a later date if we are successful in making a, profit and find that we are in a position to take on this additional obligation without injuring the financial condition of this Company, I myself will see that you obtain these benefits. Some of you have worked for me a long time , you know that in many instances where you could not get satisfaction from your foreman or thf. superintendent in charge, you came to my office and I saw to it that you were satisfied, my door is still open and you are at liberty to continue bringing your grievances to me, if you see fit. While we still have some orders on hand it is necessary for me to leave on a trip in order to keep things rolling, otherwise , the well may run dry. I hesitate to leave due to the unrest existing . I can't go on a trip with my mind hurdencd with other troubles , I am ready to leave, but before I do I would like to have a vote of confidence in this respect , whether this factory is unionized or not, that you will stay on the job until I return. Those that are in favor of what I am asking please raise your hands. Before closing I want to say this, I have no grievance against the Union or the men that organize it, these men have a job to do the same as you and I. The Taft-Hartley law allows me some rights the same as it does the Union , and it is my privilege to say that as far as I am concerned I do not want a union factory. Upon the completion of the speech Levin testified he allowed questions from the employees which he answered. Levin testified several employees asked if the plant would shut down the week of July 4. There is a conflict in the record as to Levin's reply. Karamourtopoulos testified Levin stated the plant would be closed down for the week and if any profits were shown at that time the employees would be paid. Employee Doris Gagnon testified Levin said the plant would close down and the employees could collect unemployment compensation checks for the week they were out of work . Levin testified at first that in answer to the question he stated the plant would shut down for the week of July 4 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and admitted that in previous years it had never shut down completely. He stated he did not tell the employees the shutdown would be their vacation period and in reply to whether they could collect unemployment compensation for the period of the shutdown, he stated' he advised the employees he did not know the law. Upon further questioning Levin testified in contradiction'to:his previous testimony that he did not commit himself when asked if the plant would close for the July 4 week and stated he did not know. I find, based on a synthesis of the testimony of Levin, Karamourtopoulos, and Gagnon that Levin told the employees the plant would shut down during the week of July 4 so that the employees could have a vacation but did not promise the vacation' would be paid by the Respondent. When Levin polled the employees after stating he hesitated to leave the plant on a sales trip due to the unrest existing since he could not go on a trip with his mind burdened with other troubles and asked for a vote of confidence of the employees that they would stay on the job until he returned whether the factory was Unionized or not, Gagnon testified she did not raise her hand and that Fore- man Goldman was standing some 10 feet away from her at the time. Levin's testimony regarding the speech itself was corroborated in some re- spects by several General Counsel witnesses. I find that the speech to the employees on February 22 was substantially as contained in the written speech set forth above. It is the Respondent's contention that the speech did not 'con- tain any threats of reprisal or force or promises of benefit and is protected by Section 8 (c) of the Act. The General Counsel claims that the speech contains several promises of benefits and an implied threat; he contends also that the polling of the employees during the speech constituted interrogation concerning their right to strike and their union sympathy. These contentions will be taken up serreatim. Thus the General Counsel claimed in his brief that when Levin told the employees to select a committee and bring in a certified public accountant to check the Respondent's books at the latter's expense and if the certified public accountant told the Respondent it was financially in a position to pay for holidays and a week's vacation it would do so, that was a promise of benefit. Since by its own terms this expression of the Respondent does not promise the employees anything but provides that a benefit will be forthcoming only on the happemgg of a certain contingency, in my opinion this is not a promise of benefit contem- plated by the Act and I so find. The General Counsel contends next that Levin's statement to the employees that they could rest assured if Respondent at a later date was successful in making a profit and found itself in a position to take on the additional obligation of paying for holidays and vacations without in- juring its financial condition, it would see to it that the benefits were forth- coining, constituted a promise of benefit to the employees. Here again the benefit is based on a contingency, namely, future profits of the Respondent. By its own terms the Respondent's expression in my opinion is not a promise of benefit and I so find. Nor do I find any implied threats in the spe' ch as con- tended by the General Counsel. The Respondent's polling of the employees as to whether they would remain on the job even if the plant waa unionized while Levin was away on a sales trip, was its vehicle for illegal interrogation in order to ascertain their union sentiments and their views on striking11 This, I find was in violation of Section S (a) (1) of the Act. I find further that Levin's promise to the employees that the plant would be closed during the July 4 week even though the employees were not told they would receive vacation pay was not a promise of benefit. While it is true that the plant was never completely shut down in previous years I, nevertheless, am unable to conclude that the 11 It will be recalled that on February 16 a strike did take place at the plant. ROZELLE SHOE CORPORATION 131 employees would benefit by the shutdown, since they were not to receive vacation pay other than perhaps to enjoy a respite away from their everyday tasks. On March 2 employee Doris Gagnon, who participated in the February 16, strike and who did not express her confidence in the Respondent during the polli,rig'of the employees on February -92,,,-,vas discharged. On the basis of the record as a whole I conclude and find that by the follow- ing enumerated acts the Respondent interfered with,, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act in violation of Section 8 (a) (1) thereof: (a) Levin's interrogation of employees Beauchesne, Meisner, Doucette, Dube, and Lavigne in his office on February 15 about the signed slips of paper that were being passed around' the packing department. (b) Scurtis' interrogation of Wheeler at about 3=:30 p.m. on February 15 regarding the slips of paper (c) Scurtis' interrogation of Muldowney on February 15 as to who started the talk about the Union, and if she had signed the card. (d) Scurtis' interrogation of Karamourtopoulos regarding the Union and if she had signed a card. (e) Scurtis' promise to Karamourtopoulos that he would see to it that every- thing would be all right with her if she removed her name from the paper. (f)'Lev-rn's questioning of -Karamourtopoulos, regarding union visitors to her home and if she knew who had started the Union and if she had signed a card. (g) Levin's threat to Karamourtopoulos that the plant would be closed if the Union got underway. (h) The polling of the employees as to whether they would stay on the job and refrain from striking while Levin was away on a sales trip. B. The layoffs on February 15, 1951 As hereinabove noted, at the finish of business on February 15, 1951, the. Respondent laid off four packing room employees and a lasting room employee. Included in this group are Anne Karamourtopoulos , Helen Muldowney , and Doris Isabelle alleged in the complaint to have been discriminatorily discharged" The Respondent denies knowledge of its employees' union membership and con- certed activities . As found hereinabove the Respondent's managerial employees were on the plant floor and observed the lunch hour meeting on February 15 and thereby obtained knowledge of the employees ' concerted activities 18 Further- more, in a small plant such as was here involved ( 104 employees at that time) knowledge of union and concerted activities may be inferred . H. and H. Manu- facturing Company, Inc, 87 NLRB 1373; N. L. R. B . v. Abbott Worsted Mills, 127 F. 2d 438 (C. A.1) . Doris Isabelle was hired by Respondent in March 1950 and assigned to the job of turning tucks in the lasting department. In February 1951 she was given the additional job of assisting Foreman DeCesare in taking care of platforms because, as he testified , he thought she was capable of handling this work. As found hereinabove, Wheeler talked with Isabelle at 10 a. m. on February 15 about an employees' meeting and thereafter Isabelle told the packing room em- "Joyce Brunette and Lillian Hubbard were the other employees laid off. All of the said empl-yees• attended the lunch hour meeting in the plant and signed slips signifying their desire for a union. "Discussion among fellow employees relative to the need for union organization con- stitutes concerted activity which is protected by Section 7 of the Act since such activity is an indispensable preliminary step to employees' self-organization. See Root_ Carlin, Inc., 92 NLRB 1313. See also John, sS Barnes Corp. v. N. L. R B. supra. 227260-53-vol. 100--10 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees as well as others in different parts of the plant that the meeting would be held during the lunch hour. After attending the meeting Isabelle circulated among the employees and solicited their signatures to a petition to organize a union which would assist them in obtaining an increase in wages. Isabelle testified that after she had punched out her time card on February 15 and was on her way out of the plant, Scurtis told her it was necessary to lay her off since she was to be replaced by a man. -Upon the completion of cross-examination of Isabelle, counsel for Respondent stated unequivocally that Isabelle was not discharged but was laid off for lack of work. DeCesare testified Isabelle did not perform the job in accordance with the system he had laid out. He explained that her job was to obtain platforms in different parts of the plant and put them up for the spotters ; that she did not obtain platforms to correspond with the numbers on cases, thus creating confusion. The result was that he had to leave his other work and rectify her mistakes. He determined therefore that since he had to spend so much of his time setting things straight for her he would lay her oft and do the job himself. DeCesare testified further that Scurtis joined in the conver- sation while he was talking to Isabelle, and told her she was to be replaced by a man. DeCesare testified that he had previously discussed this matter with Scurtis and the latter instructed him to get a man for the job if Isabelle was not capable of handling it. Scurtis at first was unable to remember any conversation with DeCesare in February regarding Isabelle's work. In answer to a leading question as to whether he recalled a conversation regarding Isabelle's job about February 19, or 15, or 16, Scurtis replied there was a bottleneck in the lasting room that week and while discussing the possibility of getting more production they decided that Isabelle was holding up the production. It was therefore Scurtis' sug- gestion that a man be placed in her job. According to Scurtis, DeCesare told Isabelle she was being laid off and if Respondent found a job for her in a different department she would be recalled. It was at this point that Scurtis said "Yes, Doris, we are going to put a man on the job." On cross-examination, in explanation of what was wrong with Isabelle's work, Scurtis testified "there's a fellow doing work in the front, and when I put a girl back of him, we find out afterward that they talk so much with the fellow and they get all hauled (sic) up there and its much confused and that.it is the experience I have, so far as putting a girl on that job. . . ." Scurtis subsequently admitted that his complaint against Isabelle was that she was talking too much. In oral "argument Respondent's counsel stated categorically that Isabelle was laid off for economic reasons. He then added that she had been shifted from one job to another, tried out in several departments, and finally laid off when it was decided to have a man fill her job. The variation in the stated grounds for Isabelle's layoff casts suspicion on the merit of the Respondent's defense. Another factor which lends itself to suspicion regarding Isabelle's layoff is Levin's testimony that in determining who shall be laid off Respondent's policy was to take into account seniority and ability. DeCesare testified that Isabelle turned tucks satisfactorily and the only reason that she was given an additional job was his need for assistance in putting up platforms. Effie Christofolas was the only other employee turning tucks. Respondent offered no proof that she was better qualified than Isabelle. It is fair to presume therefore that Isabelle was equally qualified with Christofolas to do the job. She was not offered the tucking job at the time she was laid,off according to ROZELLE SHOE CORPORATION , 133 DeCesare even though she had greater seniority than Christofolas because Respondent intended to convert from a hand to a machine operation which the record reveals was done by a woman. It is interesting to note in this regard that Christofolas was one of the signers of the petition referred to hereinabove but before it was turned over to Wheeler requested that her name be removed, and Isabelle struck it out. I cannot credit the Respondent's contentions that Isabelle was laid off for the reasons set forth above; rather I am persuaded and the preponderance of the evidence leads me to the conclusion that the reasons given by the Respondent were merely pretexts to conceal its illegal motivation for her layoff. As men- tioned previously, Isabelle and Wheeler were the prime movers in arranging the employees' meeting during the lunch hour on February 15, the inception of con- certed activities. Isabelle participated in the solicitation of employees to sign slips as a manifestation of their desires for a union. Her layoff followed closely on the heels of Levin's interrogation of employees regarding the slips. In view of these circumstances and upon the record as a whole, I find that Isabelle was discharged on February 15 in violation of Section 8 (a) (3) of the Act. Anne Karamzourtopoulo8 began her employment as a buckler in Respondent's stitching department on November 10, 1950. After 2 weeks she was assigned to the packing department to clean shoes. . On February 15 Karamourtopoulos attended the lunch hour meeting in the plant. About 2: 30 p. m. she signed a slip at employee Dube's behest;' signifying her desire for a union. At about 4: 20 p. m. Karamourtopoulos returned to her regular place in the packing department, after doing some temporary work in the lasting department," when Foreman Attella told her she was being laid off. She asked him the reason but none was given. Helen Muldowney was employed by the Respondent in December 1950 to clean shoes in the packing department. On occasions she was assigned additional duties of shanking and pulling nails out of shoes. . Muldowney attended the February 15 meeting in the plant and also signed a slip signifying her desire for a union. At the completion of work that day Mul- downey.was told by Foreman Attella she was being laid off because of lack of work 1° In addition packing room employees Joyce Brunette and Lillian Hubbard were laid off allegedly for lack of work. They signed slips as an indication of their desires for an employees' union. Levin testified he called Scurtis into his office after working hours on February 12 to discuss the loss of production in the plant. On February 13 Scurtis, ac- cording to Levin, pointed out that all of the lasts were being used on current orders thus creating a bottleneck in the lasting department which resulted in a lack of work for the packing room. It was explained that in the manufacture of the shoe the process starts in the cutting department then flows through the stitching, the lasting, and packing departments. Levin testified he told Scurtis if the loss in production continued it would be necessary to lay off employees in those departments where production was falling off. Levin continued his discus- sions with Scurtis regarding this matter on February 14 and 15. Levin stated he did not mention to Scurtis at any time during their discussions reducing the "Dube was one of the employees interrogated by Levin regarding the signing of slips. 13 Karamourtopoulos testified there was a lull in her regular work that day and she was assigned to the lasting department. 10 During the afternoon Muldowney had an argument with Foreman Attella during which there was an exchange of profane language . The Respondent does not claim this had any bearing on the decision to lay her off that evening but contends it came about solely for economic reasons. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD number of employees in the packing room. This is in direct conflict with the testimony of Scurtis who stated that Levin told him there were too many em- ployees in the packing room. Levin testified that on the morning of February 15 he called Foreman, Attella to his office, told him not enough shoes had been produced that week, that it was not known how long this condition would continue, and that-Attella was.to` lay- off those employees who he thought were not needed until production picked up." At about 4:15 p. nr. Attella, according to Levin, said he did not know which girls to lay off since he was not well acquainted with their names. Levin then went out to the packing room and pointed out four girls to Attella to be laid off. Levin stated he chose Brunette, Muldowney, and Karamourtopoulos for the reason that they had the least amount of seniority in the packing room. Hubbard was chosen because she had less seniority than another employee doing a similar operation. Levin admitted it took from 5 to 6 days for the work in the lasting room to get to the packing room. The Respondent's production chart in evidence reveals that for the week ending February 9 the volume of production in the lasting room was 391 cases, the highest during the months of January and February. On the basis of Levin's testimony, therefore, any bottleneck in the lasting room which occurred during the week of February 12-16 could have had no effect upon the volume of work in the packing room during the same week. In any event the Respondent did not offer any evidence other, than that set forth above to explain this condition. The record reveals also that on February 12 employees Dorilda Pacquette and Irene Harvey were hired to clean shoes in the packing room. Since these hirings took place on the same day that Levin started his discussions with Scurtis re- garding the loss in production and the excess number of packing room employees, there appears to be some doubt cast on Respondent's contention that the layoffs in the packing room on February'15 became necessary because of the excess num- ber of employees. Significant also is the hiring of Mary Barrett and Eleanor Champy on February 16 as cleaners for the packing room. Levin testified he had complained to bookkeeper Costello on several occasions about the highcost of maintaining the packing room. He stated Costello recommended Barrett as a person who "would be a very good help" to Respondent. Barrett brought along her friend Champy to the plant when she appeared and although the record is silent as to whether Champy "would be a very good help" to Respondent, Levin told the packing room foreman to put both on as cleaners. Barrett and Champy remained in the Respondent's employ until July. Another significant fact which must be considered in resolving Respondent's contention is Harvey's uncontra- dicted testimony, which I credit, that Foreman Attella told her on February 15 he was laying off some girls and there might be a chance that her sister could get a job," and he would let her know the following day. I do not accept Levin's explanation for the hiring of Barrett and Champy the day after the layoffs of four employees, at least three of whom were doing similar work in the packing department and who were allegedly laid off for lack of work. The real reason for the layoffs is not hard to find. I am persuaded and the preponderance of the evidence leads me to the conclusion that Respondent's defense that Karamourtopoulos, Muldowner, Brunette, and Hubbard were laid off for lack of work was merely a pretext to conceal its illegal motivation for their layoffs. Karamourtopoulos and Muldowney attended the lunch-hour meet- 11 Scurtis testified that after Levin told him on February 13 there were too many em- ployees in the packing room , he in turn told Attella to lay off some help. 11 Harvey's sister had applied for employment with Respondent. ROZELLE SHOE CORPORATION 135 ing of employees several hours before the layoffs, and all signed slips signifying their desires. for a union. The layoffs took place several hours after Levin interrogated employees regarding the signed slips. And as found previously, Foreman Marcinuk told Wheeler several girls were laid off because of the ac- tivities in the plant that afternoon and because of signing slips. In view of these circumstances and upon the entire record I find that Karamourtopoulos, Mul- downey, Brunette, and Hubbard were laid off on February 15 in violation of Section 8 (a) (3) of the Act. C. The sti ike on February 16 As hereinabove found, Wheeler met with Union Organizer DePietro after being informed by Foreman Marcinuk of the layoffs of employees for signing slips in the plant. Wheeler contacted other employees, and arrangements were made to meet the nest morning at 7 a. in. in the plant yard. On February 16 employees Wheeler, Isabelle, Hyder, and Union Organizer Delietro, McGuire, and Frasca stationed themselves at different points in the yard and told employees on their way to work of the layoffs on the previous night and requested them to remain out of work in protest of the Respondent's action. About 15 to 20 employees remained in the yard until 7:30 a. in., the starting time in the plant. While they were congregated in the yard Scurtis asked Wheeler and H) der why the employees did not report for work, and they replied they did not like what happened to the employees laid off the previous night. The employees who did not report for work 10 proceeded in a group to the union hall where they signed membership application cards, held a meeting, and authorized the union organizers to appear before Levin to request reinstate- ment for, the laid-off employees and those who remained out of work in protest of the layoffs. Having found that the layoffs of Isabelle and the packing room employees on February 15 were discriminatory, it follows that the strike of the employees on February 16 in protest of the said layoffs was an unfair labor practice strike. It is so found I) The request for reinstatement; refusals to reinstate ; other discriminatory discharges On the afternoon of February 16 Union Organizers DePietro and McGuire met with Levin and Scurtis in Levin's office at the plant and requested rein- statement for the laid-off employees as well as the striking employees. As hereinabove found, Levin agreed to reinstate all of the said employees. DePietro and McGuire reported Levin's agreement to the employees at the union hall and told them to report for work on February 19. Irene Harvey and Dorilda Pacquette 20 were hired at the same time by Foreman Attella on February 12 to clean shoes in the packing room. They testified they were hired as perman ant employees .21 On February 15 each signed a slip as it manifestation of her desire to have a union in the plant. On February 16 11 Included in this group were Wheeler, Hyder, Dorilda Pacquette, Irene Harvey, Doris Gagnon, and Jerry Cerrullo alleged in the complaint to have been denied reinstatement discriminatorily or discharged. 20 Harvey was Pacquette's future daughter-in-law. 91 Levin testified,that Foreman Attella came to his office on February 12 and said Harvey and Pacquette were applying for jobs as experienced packers Levin stated he advised Attella to hire them and try them out. Attella who was no longer in the employ of the Respondent at the time of the hearing did not testify. Levin's testimony is not credited. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harvey and Pacquette arrived at the plant to report for work but joined the strike with the other employees;for the reason , as they testified, to protest the Respondent's action in -laying off some girls the night before. On February 19 they did not find their time cards in the rack upon reporting for work. Foreman Attella told them there was no work. Harvey has never been reinstated. On February 20 Pacquette testified she received a telephone message to report at the plant. She' arrived at 2 p. 'm., saw Scurtis who assigned her to various duties including cleaning shoes at which she worked until quitting time when Scurtis told her he would call her again if she was needed. - She has not been reemployed. Barrett and Champy hired on February 16 to clean shoes in the packing room, work similar to that done by Harvey and Pacquette , continued to work for the Respondent for a number of months subsequent to the strike. The Respondent attempted to justify its refusal to reinstate Harvey and Pacquette on the ground that they did not perform satisfactorily during the period of their employment. Levin testified Foreman Attella on February 13 reported Harvey and Pacquette were not satisfactory as packers whereupon Levin suggested trying them as cleaners . Both women testified credibly they were hired to clean shoes. At another point in his testimony, Levin stated Foreman Attella on February 15 told him that Harvey and Pacquette were not cleaning shoes satisfactorily and he instructed Attella to lay them off as of the finish of business on February 16 In spite of this Pacquette was recalled for a half day on February 20 to clean shoes among other duties. It is noteworthy that Levin did not choose Harvey and Pacquette for laycffs on February 15 even though they had less seniority than the other employees laid off and their work was reported to be unsatisfactory. Levin stated lie forgot completely about them and "never even gave it a thought" Harvey testified she did not receive any complaints during the 4 days she was employed by the Respondent. Levin admitted on cross-examination that Harvey was not in the Respondent's employ "for the simple reason that Irene Harvey- didn't show up for work on Friday the 16th." Levin's testimony regarding the unsatisfactory performance of Harvey and Pacquette is not credited. Furthermore it is settled law that unfair labor practice strikers upon their unconditional request for reinstatement are entitled to their former or sub- stantially equivalent jobs even if it becomes necessary to dismiss the replace- ments hired in their jobs. I do not consider Pacquette's recall on February 20 for several hours reinstatement to her job as required by the Act, particularly since Respondent retained in its employ the two employees hired as replace- ments on February 16. I conclude and find that the Respondent discharged Harvey and Pacquette for participating in the strike and at all times since February 19 has failed and refused to reinstate them to their former jobs or substantially equivalent positions.22 Clyde Wheeler started his employment with Respondent in 1948. He quit in the early part of 1949 but returned in July of the same year. During this period his job consisted of innersole tacking. In November 1950 Wheeler again quit when Respondent refused to give him an increase in wages from $40 to $50 a week. About a week later he was rehired at $50 per week and assigned the additional duties of putting up lasts for the assemblers in accordance with customers' orders and obtaining uppers from the stitching room and sizing them out in accordance with the said orders. Wheeler credibly testified that after he returned to the Respondent's employ in November 1950 innersole tacking work required only approximately three-quarters of an hour per day 32 In computing back pay the Respondent should be given credit for the time worked by Pacquette on February 20- - ROZELLE SHOE CORPORATION 137 and the balance of the time was spent carrying out the other additional duties assigned to him. As noted previously, Wheeler first contacted the Union in November 1950 and obtained several membership cards which he distributed to employees. On February 15, 1951, Wheeler arranged the employees' meeting during the lunch hour, acted as chairman of the said meeting, and collected slips signed by employees during the meeting and subsequent thereto. On the morning of February 16 Wheeler talked with a number of employees in the yard and enlisted their assistance to remain out of work in protest of the Respondent's action in laying off several girls the night before. He participated in the strike. Wheeler reported for work on February 19 at 7: 30 a. in. Wheeler testified Foreman DeCesare told him his only job thereafter was innersole tacking. He worked for about 20 minutes, completed all the tacking of innersoles there was to do that morning and then spoke with Scurtis who said he would see Levin "about getting the other part of [Wheeler's] job back," and if it was at all possible he would obtain both jobs for him. Scurtis reappeared shortly and remarked that if Wheeler went to the office and talked to Levin he would probably again do the putting up work. Scurtis stated that unless Wheeler did that he would not assign him to the said work and Wheeler would be called when needed. Wheeler did not go to see Levin and left the plant for the day. On February 20 Wheeler reported for work at the regular starting time and was told by Foreman DeCesare there was no work for him. Wheeler-did not report for work after that day nor has he been recalled. It is the Respondent's contention that the innersole tacking work began to taper off about December 15, 1950, when the manufacture of compo-constructed -shoes was discontinued and it ceased completely on February 19, 1951. Wheeler, according to Levin, was kept busy working on the innersole tacking job ex- clusively until about December 15, 1950, and thereafter was given the additional jobs referred to above. Levin testified that prior to December 15 he discussed with Scurtis the Respondent's continued need for an innersole tacker to finish the work it had on hand. They decided that rather than let Wheeler go and hire an inexperienced innersole tacker, they would add to Wheeler's duties the putting up of lasts, a job regularly performed by a boy paid 75 cents an hour, so that Wheeler could finish the innersole tacking work. Levin admitted that he instructed Foreman DeCesare on February 19 for the first time to confine Wheeler to innersole tacking and to lay him off when that work ran out because as he said "he did not care" to pay $1.25 per hour for a 75 cents per hour job. There is no evidence in the record that from November 19, 1950, to February 19, 1951, Levin questioned the hourly rate paid Wheeler even though as herein- above found he was tacking innersoles approximately three-quarters of an hour per day and spending the rest of his time putting up work and sizing uppers. It is therefore particularly significant that Levin's concern about Wheel'er's rate of pay for performing a relatively minor and unskilled job was coincidental with Wheeler's prominent participation in the employees' concerted activities and strike. Further significant as to the Respondent's motivation in relegating Wheeler to the innersole tacking job on February 19 with knowledge that there was little of said work to be done that day and none thereafter R8 was Marcinuk's statement to Wheeler made after the packing room employees were discrimi- natorily laid off, that other employees were "going to get it" and Respondent had Wheeler "pegged as the No. 1 boy." In view of the foregoing and upon the record as a whole it is clear and I find that Wheeler was discharged because of his concerted activities in connection 23 This finding is based on DeCesare's testimony. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the employees' concerted activities on February 15 and the strike on February 16, in violation of Section 8 (a) (1) and (3) of the Act. See Rome Specialty Co., Inc., 84 NLRB 55. Furthermore the undisputed facts are that Respondent on February 19, upon W'heeler's reporting for work, did not restore him to the same job which he performed before the strike. I conclude and find that Respondent since Febru- ary 19 has tailed and refused to reinstate Clyde Wheeler to his former job or one substantially equivalent thereto. Henry Hyder was first employed by the Crystal Shoe Company, the pred- ecessor firm to the Respondent, in April 1947 as a heel slugger.` Hyder testi- fied that in about June 1950 he was assigned the additional job of roughing soles" From the latter date until February 19, 1951, according to Hyder, he performed both jobs but spent 80 to 90 percent of his time on roughing soles. Hyder was paid a piecework rate and was under the supervision of Foreman Marcinuk. Marcinuk admitted that Hyder worked on both jobs. His testimony as to when Hyder was assigned the additional job of roughing soles was inconsistent. Marcinuk first testified that when he became foreman of the stock-fitting room in October 1950, Hyder's job was confined to slugging heels. This work slowed up at about that time and Marcinuk gave Hyder the additional job of roughing soles. He later testified that the heel slugging work slackened in December 1950 when Respondent began to produce a new type of shoe and in answer to a leading question stated he did not assign Hyder to the additional job nor did he tell him to do that work on all occasions when there was not enough work to be done on slugging heels. As heretofore found, Marcinuk was not a reliable witness. Hyder impressed me as a forthright, truthful witness. I credit his testimony as set forth above. Hyder talked with DePietro about the Union in November 1950. Thereafter he met with the union organizers on several occasions and talked with them when they were in the plant yard. On the night of February 15 Hyder discussed with Wheeler the layoffs of the five employees that day. On the morning of February 16 Hyder joined the other striking employees congregated in the plant yard and solicited a number of employees to remain out of work in protest of the Respondent's action of the previous day. -'While thus engaged, Scurtis approached Ryder and asked what was the matter. Hyder replied "The reason is obvious, Peter. We don't like what happened to the girls." Hyder remained out of work for the day, attended the meeting of striking employees at the union hall, and signed a union authorization card. On February 19 Hyder, in accordance with Levin's conversation with DePietro transmitted by the latter to the striking employees, reported for work at 7: 20 a. m. Hyder was told by Foreman Marcinuk there was no heel slugging for him to do. Ryder inquired if there was not a lot of roughing to which Marcinuk replied "there is no more slugging for you." Hyder then remarked "in other words, that's all there is" and Marcinuk commented "never mind." Hyder left the plant after being advised by Marcinuk to report on February 21 when there would be some slugging work. On February 21 Ryder reported at the plant and was told by Marcinuk there was no slugging work. Ryder observed one case of shoes which required heel slugging and said, "I'll do that if you want me to ; it only takes ten minutes." 26 This operation consists of nailing a small leather top to the heel of the shoe. 25 This operation entails running the sole on a machine to make it rough so..,that ,when cement is applied it will adhere to the shoe ROZELLE SHOE CORPORATION 139 Marcinuk's response was "There is no need to. Why don't you wait until I call you." Ryder has never been reinstated. Respondent's counsel contended in oral argument that Ryder was discharged for the following reasons: (1) Inefficiency; (2) insubordination, in that he re- fused to obey orders of Foreman Marcinuk ; and (3) causing bickering and argu- ment among the employees of the stock-fitting department. It is noteworthy that only in oral argument did Respondent raise the issue of Hyder's inefficiency. Otherwise not a scintilla of evidence was adduced by Respondent to warrant raising such a contention. On the contrary DeCesare " testified that Hyder's work was all right and Levin testified- he never received any complaint about Hyder's work. This contention is without merit. With respect to the second contention Marcinuk testified that when he became foreman of the stock-fitting room he endeavored to and did increase production. Ryder, according to Marcinuk, did not see eye to eye with him on increased production because he feared the employees would be working themselves out of jobs. One morning while the production drive was going on Ryder was doing some work he chose to do and not the work Marcinuk had designated.2' An argument resulted and Ryder allegedly said to Marcinuk "this is not the Army; you can't tglk to us like that." Ryder denied having any arguments with Marcinuk. He specifically denied making the statement attributed to him by Marcinuk. He testified that so far as he knew no friction existed between himself and Marcinuk and thely cap- peared to "get along" even though they were not too friendly. Ryder impressed me as a mild mannered person, not prone to be argumentative. Marcinuk, on the other hand, was an extremely belligerent witness, irascible, and difficult to control at the hearing. I credit Hyder's testimony and denials -herein. As to Ryder's causing bickering and argument among the employees of the stock-fitting room, Marcinuk testified that during January and February 1951 he overheard Ryder discussing the distribution of work in the department with employees Eleanor Conti and Marion Farrah and at times there was shouting. On other occasions during the same period he heard employee Gagnon scold Ryder in a loud tone of voice because of the manner in which he placed soles on the rack.28 It seems apparent from the record that Marcinuk was not greatly concerned by the bickering and arguments among the employees and the result- ing noise, since the only action he took was to tell the employees "cut it out, cut this noise out." No evidence was adduced by Respondent that the alleged arguing and bickering interferred with the employees' work in the stock-fitting room. Even though, as above indicated, the Respondent contended that Ryder was discharged for the reasons set forth, Levin was unable to testify with any degree of certainty that he was discharged. Levin testified variously as follows : He instructed Marcinuk on February 12 to discharge Ryder at the finish - of business"on February 16 because the latter had given Levin an ultimatum to the effect that he would have to leave the Respondent's employ unless employees Conti and Farrah were removed from their jobs ; on cross-examination Levin stated he did not "even know" that Ryder was actually discharged and was of 28 DeCesare was Marcinuk's predecessor as foreman of the stock-fitting room F'+ It does not appear from the record that Marcinuk had any system of distributing the stock-fitting room work to the employees Conti testified they did the work in their assigned jobs such as slugging or roughing and if that ran out they did any other work they "could get itheirli hands on " 28 Farrah testifying as a witness for Respondent stated she heard Gagnon complain to Hyder that she was not getting the work fast enough but their conversation was not too loud. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the' impression that he left of his own accord. Levin stated further that he did not ascertain the reasons for Hyder's discharge and knew. only that he was no longer in the Respondent's employ because he did not report to work on February 16. On redirect examination Levin testified that as far as he personally, was concerned Hyder was discharged but was not so advised by Foreman Marcinuk because he did not report to work on February 16. When questioned by the Trial Examiner as to the reasons why Hyder was not told he was discharged on Monday, February 19, when he appeared at the plant prepared to work, Levin stated it was not necessary for the foreman to carry out his previous instruc- tions to discharge Hyder since Respondent took the "polite way out" and merely told him there was no work. , , Hyder was never told he was discharged. ,,I do not credit the Respondent's contentions that Hyder was discharged for the reasons advanced by it at the hearing. I conclude and find that from February 19, 1951, the Respondent failed to reinstate Hyder, to his former or a substantially equivalent position.29 Jerry Cerullo was employed by the Respondent early in 1950 as a sprayer. He thereafter was assigned to the job of a shipper, and prior to Christmas 1950 he was transferred to the cutting department to learn the operation of a clicker machine. Cerullo cut soles on the clicker machine until February 16, 1951. He was under the 'supervision of Foreman Louis Goldman and was paid $1 per hour, the same rate he received as a shipper. ;, On February 16, Cerullo met employee Isabelle in the plant yard at about 7: 15 a. in. and was enlisted by her to remain out of work in protest of the Respondent's action the previous day. Cerullo joined the striking employees, participated in the union hall meeting, signed a union authorization card, and was with the other employees when DePietro reported Levin's acquiescence to have all of them return to work the following Monday morning. , ^ Cerullo testified he spoke with Foreman Goldman 90 on February 18 advising him of the death of his mother-in-law which necessitated his remaining away from work 3 or 4 days. Goldman, according to Cerullo, told him to come in when all arrangements were completed and the funeral was held. Cerullo reported for .work on February 22 but was unable to find his time card. He testified Goldman came up to him and told him not to bother looking for the card as he had been replaced in order not to hold up the work. Scurtis approached them while they were thus engaged in conversation and asked what they were discussing. Gold- man explained that Cerullo wanted to know whether he was discharged or laid off because he wanted to apply for unemployment compensation if he was laid off. Scurtis then said, "Well, let him collect his checks there is no work for him." Cerullo collected unemployment compensation until he was rehired some 6 weeks later. He, worked on the clicker machine for 11/2 days when he was shifted to the shipping job, " and was still employed at the latter job at the time of the hearing herein. Goldman denied Cerullo's version of the conversation on February 19. Gold- man admitted that Cerullo said he would not be in to work for several days because his mother-in-law passed away. Goldman testified that Cerullo added he did not want to go back to work on the clicker machine but would like to 29 Marcinuk testified that whereas the slugging of heels was discontinued in February, there was enough sole roughing work to do thereafter for employees Conti and Farrah, s° Louis Goldman was president of the Respondent Corporation and foreman in charge of the cutting and shipping department. Cerullo 'did - not , recall exactly when be returned to work . He thought it was on a Wednesday.. He stated he worked for a day and a half at cutting and transferred to the shipping job because Miller, the regular shipper, quit. ROZELLE SHOE CORPORATION 141 return to his old job at shipping. Goldman testified further he did not promise anything to Cerullo and their conversation ended. When Cerullo returned to the plant on February 22, Goldman stated he told Cerullo that since he wanted the shipping job he could not use his services at ,that time but just as soon as he could '*make room;' for him he would bring him, back as the shipper. Goldman did not recall Cerullo's comments but did remem- ber that no objection was raised. Cerullo was recalled on March 22 to the shipping job. . Cerullo denied on cross-examination that he told Goldman he wanted his old job back. He stated he "just wanted to work." Cerullo admitted at the hearing that on occasion after he returned to the Respondent's employ when he was about to leave the plant during working hours and was questioned by a foreman he did not tell the truth about where he was going. It was also developed at the hearing that Cerullo by letter dated July 9, 1951, voluntarily advised the Regional Office of the Board that Respondent "is not responsible for any time lost as a result for having joined in the walkout of Feb. 16, 1951. The reason why I was not immediately hired was because I did not want my old job back. But instead wanted a new job in the packing room. When I made the request within a few days after the 16th of Feb. I was told that I could have the job in the packing room as soon as a vacancy took place." From his demeanor Cerullo did not impress me as a truthful witness, I do not credit his testimony or denials. • Upon the record as a whole I conclude and find that Cerullo was not reinstated on February 22, 1951, because he advised Respondent he did not want his old job but instead wanted to go back as a shipper. It will be hereinafter recom- mended that the allegation in the complaint as to Jerry Cerullo be dismissed. Helen Muldournell, as hereinabove found, was discriminatorily laid off on February 15. Muldowney, testified that during the day on February 15 Fore- man Attella told her to clean a case of white leather shoes. She started, when Attella said he would first have them stained by another employee. Muldowney told Attella that the cleaning should be done before the staining, but Attella told her "never mind." After the shoes had been stained and were still wet, Attella returned with them to Muldowney and directed her to clean them with compo. Muldowney claimed she told Attella that when white shoes are cleaned with compo the brown-stain runs-into the white and makes it difficult to wipe off and she refused to clean the shoes. Attella with the aid of another employee did the job. When Attella in answer to a question by Muldowney said he asked her to do the job "out of spite," she called him a name impugning his ancestry and he retorted with a profane epithet disparaging her nationality ' Muldowney returned to work on February 19 at the regular starting time. After working about 15 minutes, Attella came to her workbench and addressing himself to her and another employee said, "I don't want no back talk from you two girls ; you just do your work and that's all. If its the last thing I do I'll get you out of here." Muldowney thereupon hurled at Attella the same vulgar expression she used on February 15, punched out her time card, and left the plant. On her way out, Scurtis inquired where she was going, Muldowney re- plied that she was not "going to take it anymore," she was leaving. The General Counsel argued that Attella's remarks were a device, planned by the Respondent, to force Muldowney to quit and that Muldowney's quitting should be construed as a constructive discharge in violation of Section 8 (a) (3). In my opinion the remarks and name calling on February 19 were merely a • 02 As previously found it is not contended by either party that this incident had any bearing on Muldowney's layoff on February 15. The fact is that the record does not indicate the time when _the.nanie calling took place. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD continuation of the dispute on February 15, prior to Muldowney' s layoff- Attella's remarks contained no threat of retribution of future action by reason of her past concerted activities or union activities. I conclude and find that the General Counsel has failed to sustain the burden ,of proving that the Respondent forced Muldowney to quit on February 19 because of her union membership or concerted activities. Anne Karamourtopoulos, as heretofore found, was discriminatorily laid off on February 15. She reported to work on February 19 as per Levin' s agreement with DePietro, but was told there was no work for her. That afternoon she received a telephone call from Foreman Attella to come in to work the next day. On February 21 Scurtis questioned Karamourtopoulos about the Union and if she had signed a membership card. He remarked that if she had her name stricken from the union membership list "everything would be O. K." He also. commented that he was shocked at learning that she and Muldowney, who, like himself were Greek, had signed union cards. On February 22 Levin interrogated Karamourtopoulos about her union mem- bership. Upon the completion of the day's work on February 26, Karamourtopoulos was again laid off by Attella without any reason. She has not been reemployed. Karamourtopoulos testified that on February 27 she was given a form at the State Unemployment Compensation office to be filled out by Respondent, on which Respondent set forth "lack of work" as the reason for layoff. At the hearing the Respondent did not assert any grounds for her discharge on February 26. That "lack of work" was not the real reason for Karamourtopoulos' dis- charge appears obvious from the testimony of John Wilson, a witness called by the Respondent, who stated "there was plenty of work." In fact Levin did not claim that economic necessity was the motivating factor for discharging Karamourtopoulos ; he admitted on cross-examination that he had no idea why she was laid off on February 26 and stated the matter was not brought to his attention. In view of the timing of the second layoff of Karamourtopoulos, shortly after she was interrogated regarding her union membership and activities by Scurtis and Levin and considering the Respondent's discriminatory refusal to reinstate Wheeler and Hyder as well as Levin's statement to the employees that he did not want a union factory, I conclude and find that the layoff of Karamourtopoulos on February 26 was because of her union membership and engagement in con- certed activities. Doris Gagnon started her employment with the Respondent in January 1950 as a stock-fitting room employee. At one time or another during the course of her employment she performed all the operations in the department such as cementing, trimming, roughing, and staining. Gagnon testified that on the morning of February 16, Wheeler told her of the layoff of five employees the previous night and asked if she would remain out of work in protest of the Respondent's action Gagnon joined the other strik- ing employees, solicited others to remain out of work, attended the meeting at the union hall, and signed a union membership card. On February 19 Gagnon was reinstated to her job of cementing soles, the work she did prior to the strike. Gagnon was among the employees gathered to hear Levin's speech on Feb- ruary 22. She testified that she was standing about 10 feet away from Foreman Goldman when Levin requested the employees to express their confidence in the Respondent against the Union by a show of hands ; she did not raise her hand. At the end of the workday on March 2, Foreman Marcinuk told Gagnon he had to let her go. When she asked what he meant, he replied she was dis- ROZELLE SHOE CORPORATION 143 charged. Gagnon inquired if it was "on account of Friday." Marcinuk re- plied "I can't talk. I'll call you up and let you know." Gagnon thereafter met Scurtis who told her she was fired because of her "rotten work." Scurtis re- fused to show her the work he had reference to. Gagnon spoke to Marcinuk on the telephone that evening and again asked why she was discharged. Marcinuk replied it was because of her bad work. After some further conversation and Gagnon's comment that he should know she did not do bad work, Marcinuk said "Doris, you know I can't talk on the phone because they've got big ears on this phone. You know, you never should have listened to those commies ; you should have went (sic) to work Friday and you could have went (sic) to Mr. Levin and he would have given you a raise." It is the Respondent's contention that Gagnon was discharged for the follow- ing reasons: (1) Inability to do proper work; (2) inability to work in harmony with her supervisor ; and (3) inability to work in harmony with her fellow workers. The Respondent adduced considerable testimony from Levin, Scurtis, De- Cesare, and Marcinuk regarding Gagnon's inefficiency and complaints about her work from the time she was hired throughout the period of her employment. Much of this testimony regarding the times of her alleged inefficiencies is in conflict. Moreover, it is difficult to understand how it was possible for Re- spondent to have countenanced Gagnon's inefficiency over such a prolonged period, especially when it is considered that she was doing a nonskilled job and could easily have been replaced since help was available. Such testimony be- comes further suspect when viewed in the light of the timing of her discharge. I will not burden this Report further by a lengthy recital of the testimony since I do not credit it. Gagnon admitted that in April or May 1950, while she was working at the staining operation, stain occasionally dropped on the shoe soles and Scurtis berated her for bad work. She testified that since then none of the supervisors complained about her work but on the contrary Foreman Marcinuk told her it was- good. Gagnon impressed me as a forthright, reliable witness I credit her testimony. With respect to the other contentions, neither Conti nor Farrah, coworkers of Gagnon in the stock-fitting room, called as witnesses by the Respondent, testi- fied to any conflicts or difficulties with her. No specific testimony was offered by Marcinuk regarding Gagnon's inability to work in harmony with him. It appears that disharmony between the employees and supervision in the stock- fitting room was the commonplace thing as is evidenced from Marcinuk's testi- mony that he w anted to leave the Respondent's employ because of digust in not obtaining cooperation from the employees I find no merit in these contentions. The real cause for Gagnon's discharge was made unmistakably clear to her by Marcinuk when he told her she should never "have listened to those commies" and should have come in to work on February 16 instead of joining the strike. Upon the foregoing and the record as a whole I conclude and find that Gagnon was summarily and discriminatorily discharged on March 2 because of her union membership and concerted activities in violation of Section 8 (a) (3) of the Act. Iv. THE E}FECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, 23 Friday, February 16, was the day Gagnon joined the strike with other employees in protest of the Respondent's action of February 15. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to-and have led to labor disputes -burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in unfair labor prac- tices, it will therefore be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated in regard to the hire and tenure of employment of Anne Karamourtopoulos, Doris Gagnon, and Doris Isabelle by discharging them and thereafter refusing to reinstate Karamourto- poulos and Gagnon (Isabelle was. reinstated on or about March 14) and having further found that the Respondent discriminated in regard to the hire and tenure of employment of Dorilda Pacquette, Irene Harvey, Clyde Wheeler, and Henry Hyder, by discriminatorily refusing, following their participation in a strike caused by the Respondent's unfair labor practices, to reinstate them to, their former or substantially equivalent positions, although they unconditionally applied for such reinstatement and in fact were told by Respondent to report back to work on February 19, it will be recommended that the Respondent be ordered to offer all of the said employees, with the exception of Isabelle, full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges." If there are not sufficient positions available for Pacquette, Harvey, and Hyder, the Respondent shall make room for them by dismissing, if necessary, employees hired on and after February 16, 1951. Wheeler has been inducted into the Armed Forces of the United States since Respondent's refusal to reinstate him, and, accordingly, may not be available for immediate reinstatement. In order to restore him to his position and thus effectuate the policies of the Act, it will be recommended that upon application, made within 90 days of his discharge from the Armed Forces, the Respondent offer him reinstatement in the same manner as. pre- scribed hereinabove for the other striking employees discriminatorily denied reinstatement. It will be recommended that the Respondent be ordered to make whole Anne Karamourtopoulos, Doris Gagnon, Doris Isabelle, Dorilda Pacquette, Irene Harvey, and Henry Hyder for any loss of pay they may have suffered as a result of the discrimination against them. Consistent with the policy of the Board enunciated in F. W. Woolworth Company, 90 NLRB 289, it will be recom- mended that loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the appropriate back-pay period. The 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 these employees normally would have earned for each quarter or portion thereof, their net earnings , if any, in other employment during that quarter.85 With respect to Wheeler, it will be recommended that the Respondent make him whole for any loss of earnings he may have suffered because of the Respondent' s discrimination against him by payment to him of a sum of money equal to the amount he 84 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 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 86 See Crossett Lumber Company, 8 NLRB 440 ; Republic Steel Corporation v. N. L. it. B., 311 U. S. 7. ROZELLE SHOE CORPORATION 145 would normally have earned as wages during those periods (1) between February 19, the date when he unconditionally applied for reinstatement and the date of his induction and (2) between a date 5 days after his timely application for reinstatement and the date of offer of reinstatement by the Respondent less his net earnings during these periods." It has also been found that the Respondent by various acts interefered with, restrained, and coerced their employees in the exercise of rights guaranteed by the Act. The Respondent's fixed intentions to defeat their employees' efforts toward self-organization, as manifested by the interrogation, the threat of reprisal if the Union was successful in organizing the plant, the layoffs, dis- charges, and refusals to reinstate striking employees, indicates such a disregard of their employees' rights under the Act as to convince me that there exists a danger of the repretition of such violations and of the commission of other unfair labor practices proscribed by the Act. Unless the recommended order is coextensive with the threat the preventive purposes of the Act will be thwarted. Accordingly, in order to effectuate the policies of the Act, to make more effective the interdependent guarantees of Section 7, and to deter the Respondent from future violations of the Act, I will recommend that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Since it has been- found that the Respondent did not commit unfair labor practices by discharging Helen Muldowney or by refusing after the strike to reinstate Jerry Cerullo, it will be recommended that the complaint be dismissed insofar as it alleges that the Respondent committed the aforesaid unfair labor practices. Upon the foregoing findings of fact and the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. United Shoeworkers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the terms and conditions of employment of some of its employees, thereby discouraging concerted activities and membership in the aforesaid Union, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By the above unfair labor practices, and by otherwise interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged 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. 5. The Respondent did not commit unfair labor practices by discharging Helen Muldowney, nor by refusing after the strike to reinstate Jerry Cerullo. [Recommendations omitted from publication in this volume.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify pur employees that : " Bee Stationers Corporation, 96 NLRB 196. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any manner interfere with, restrain , or coerce our em- ployees in the exercise of their right to self-organization , to form labor Or- ganizations, to join or assist UNITED SHOE WoRKERs OF AMERICA, CIO, 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, and to refrain from any or all of such activities except to the extent that such, right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized In Section 8 (a) (3) of.the Act. WE WILL offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed: Anne Karamourtopoulos Irene Harvey Doris Gagnon Henry Hyder Dorilda Pacquette Clyde Wheeler WE WILL make whole for any loss of pay suffered as a result of our dis- crimination, the.following employees: Anne Karamourtopoulos Irene Harvey Doris Gagnon Henry Hyder Dorilda Pacquette Clyde Wheeler Doris Isabelle 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 membership in or activity on behalf of any such labor organization. Dated---------------------------------- NOTE : Any of the above-named ROZELLE SILOS CORPORATION, Employer. By----------•------------------ ,(Representative ) (Title) 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 GO days from the date hereof, and must not be altered, defaced, or covered by any other material. NEIL J. KUNST, LLOYD NORTON AND LORETTA S. KUNST, CO-PARTNERS, D/R/A CONNOR FOUNDRY COMPANY, A CO-PARTNERSHIP and INTER- NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO and CONNOR FOUN- DRY EMPLOYEES' UNION, PARTY TO THE CONTRACT. Case No. 7-CA- 614. July 14, 1952 Decision and Order On December 27,1951, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in unfair labor prat- 100 NLRB No. 28.