Beckerman Shoe Corp. of Kutztown

In the Matter of BECKERMAN SHOE CORPORATION OF KUTZTOWN and UNITED SHOE WORKERS OF AMERICA (AN AFFILIATE Oi THE CIO) Case No. C-1953.-Decided August 01, 19x2 Jurisdiction : shoe manufacturing industry Unfair Labor Practices Interference, Rest amt, and Coercion: anti-union statements; threat to move plant; inciting, employees to attack union organizer; warning employees not to join union Discrimination: discharging and refusing to reemploy certain employees for their unwillingness to assist the employer in combating union and others because of their union membership and activity; transferring an employee to a job that resulted in a"substantial loss of earnings and subsequently discharging him because of his union membership and activity. - Remedial Orders : employer ordered to cease and desist unfair labor practices; reinstatement and back pay awarded discriminated employees ; period between Trial Examiner's Intermediate Report and Decision excluded as to certain employees; execution of releases by certain employees subsequent to their discharge held not to bar remedial reinstatement and back pay order. - ' Practice and Procedure : complaint dismissed as to an individual because of his lack of integrity. - Mr. Robert H. Kleeb and Mr. Geoffrey J. Cun' iff, for the Board. Stevens cfi Lee, by Mr. Allan K. Grins and Mr. John D. Glase, of Reading, Pa., for the respondent; Mr. Charles L. Fleece, of New York City, of counsel. Mr. Issac Shada, of Lancaster, Pa., for the Union. Mr. James R.- Doyle, of Reading, Pa., for Charles Haddad. Mr. Roman Beck, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Shoe Workers of America, affiliated with the Congress of Industrial Or- ganizations, herein called the Union, the National Labor Relal ions Board, herein called the Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued its comp'aint 43 N L R B, No. 75 1 , 435 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dated May 8, 1941, against Beckerman Shoe Corporation of Kutz- town, Kutztown, Pennsylvania, herein called the respondent, alleg- ing that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the -leaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by a notice of, hearing, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged, in substance : (1) that the respondent discouraged membership in the Union by discharging six employees and refusing to reinstate all but one of them because of, their membership in the Union and activities in its behalf ;1 (2) that by the' foregoing acts and by urging its employees to resign from the Union, threatening to close its Kutz- town plant and to deprive its employees of work if the Union suc- ceeded in organizing the plant, requesting employees to, engage in surveillance of union meetings, questioning employees about union affairs, and inciting employees to assault a union organizer in order to prevent the distribution of union leaflets, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On May 17, 1941, the respondent filed its answer, denying that it had engaged in any of the unfair labor practices alleged in the com- plaint, but admitting that it was engaged in interstate commerce. The answer further alleged that five of the six employees alleged to have been discriminated against had quit voluntarily, and that the sixth employee had been discharged for cause. On May 29, 1941, the re- spondent filed an amended answer containing the additional aver- ment that, subsequent to the termination of their employment, three of the employees named in the complaint had released it from any liability arising out of the termination of their enmploynient. Pursuant to notice, a hearing was held at Reading, Pennsylvania, on May 29 and June 2, 1941, before Walter Wilbur, the Trial Exam- iner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, and the Union by its organizer; all parties participated in the hearing. Full opportunity to, be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the hearing the Trial Examiner made rulings on,motions and on objec- tions to the admission of evidence; at the close of the hearing, he granted, without objection, a motion of counsel for the Board to i The naiaes of these employees are Albert Azai, Subrey Azar, Charles Haddad, Howard H.- Schlegel, Anna Haas, and Lee G. Bryant. BECKERMAN SHOE CORPORATION OF KUTZTOWN 437 conform the' pleadings to the proof. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the conclusion of the hearing, the Trial Examiner afforded the parties an oppor- tunity for oral argument before him, but they did not avail themselves of the opportunity; the respondent, however, submitted a brief to the Trial Examiner. - On August 16, 1941, the Trial Examiner issued his Intermediate Report, copies of which were served on all parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from these unfair labor practices, reinstate with back pay three of the employees discriminated against, and make whole another who had been reinstated prior to the hear- ing., On September 8, 1941, the respondent filed exceptions to the Inter- mediate Report. It also filed a petition to reopen the hearing, in which,it alleged that Charles Haddad, one of the. employees found to have been discriminated against, desired to recant testimony which he gave at the hearing. - On October 2, 1941, the Board granted the prayer of that petition and ordered that the record be reopened and that a further hearing be held. Pursuant to notice, a further hearing was held at Reading, Pennsyl- vania, on October 21, 1941, before Trial Examiner Wilbur. The Board, the respondent, and Charles Haddad were represented at the hearing by counsel, and the Union by its representative; all parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine '-witnesses, and- to introduce evidence bearing upon the issue which was the subject of the further hearing was afforded all parties. During the hearing the Trial Examiner made rulings on motions and on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors - were committed. The rulings are hereby affirmed. The parties were also afforded -an- opportunity subsequent to the hearing to submit briefs to the Trial Examiner; the respondent availed itself of the opportunity. On November 24, 1941, the Trial Examiner issued a 'Supplemental Intermediate Report in which he found that subsequent to the first 2 Subsequent to the hearing the Trial Examiner ordered that the official transcript of the hearing be corrected in certain minor respects , in accordance with a stipulation of the parties. - The three employees whose reinstatement was recommended were Albert Azar, Subrey Azar, and Charles Haddad ; the other employee discriminated against was Lee G. Bryant. The Tual Examiner found that the other two employees named in the complaint had not been discriminated against and accoidingly recommended that the complaint be dismissed as to them. 438 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing Charles Haddad made statements concerning the termination of employment of himself and of Albert and Subrey Azar which were contrary to the testimony he gave at the first hearing. The Trial Examiner recommended' that- the complaint be dismissed as to Albert Azar, Subrey Azar, and Charles Haddad ; in other respects he adhered to the recommeriddtions of his original Intermediate Report. On December 12, 1941, the respondent filed exceptions to the Supple- -mental Intermediate Report and requested permission to argue orally before the Board. It thereafter submitted a brief in support of its exceptions. On March 5, 1942, pursuant to notice, a hearing was held before the Board in Washington, D. C., for the purpose of oral argu- ment. The respondent was represented at the argument by counsel; and-the Union by its organizer; both participated in the argument. The Board hiis considered the exceptions and briefs filed by the respondent, and except as the exceptions are consistent with the find- ings, conclusions, and order set forth below, finds no merit in them. - Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, Beckerman Shoe Corporation of Kutztown, is a Pennsylvania corporation engaged at Kutztown, Pennsylvania, in the manufacture and,sale of shoes. In the conduct of its business, the respondent uses leather, rubber, paste, heels, and soles. During 1940, it purchased $433;252 worth of these materials, of which 80 percent was purchased in-States-other than Pennsylvania and was shipped to its Kutztown plant from the State of origin. The respondent's sales during 1940 were in excess of $785,000; 90 percent of the shoes which it sold in that-period was shipped from the Kutztown plant to pur= chasers in other States. In answering the complaint, the respondent admitted that it is engaged in commerce within the meaning of the ;pct. II. THE ORGANIZATION INVOL\ ED United Shoe Workers of America is a labor organization affiliated with the Congress of Industrial Organizations ; it admits to member- ship employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In •August , 1940, Isaac Shada ,, a representative of the Union began to organize the respondent 's Kutztown workers. - Albert 4 and Subrey 4 At times Albert Azar is referred to in the record as "Aubrey" Azar. BECKERMAN SHOE CORPORATION OF KUTZTOWN 439 Azar, working foremen, joined the Union at the outset of this cam- paign and solicited their fellow workers to join. Otto Degen, the superintendent of the Kutztown plant, repeatedly warned the Azars after the membership drive had begun that Max Beckerman, president of the respondent, would close the plant if the Union succeeded in organizing the employees. Degen denied generally having made re- marks of this character, but we, like the Trial Examiner, are unable to credit his denial. In September 1940, the employees in Albert Azar's department, known as the Goodyear stitching department, stopped work in a body to enforce a demand for a wage. increase. When the work stoppage was in progress, President Max Beckerman told Superintendent Degen in the hearing of Subrey Azar "to watch" Albert Azar, adding that Albert Azar was an "agitator" and the person who had incited the stitchers to demand higher W 'ages.' - In the afternoon of October 21, 1940, while Shada, the union organ- izer, was distributing leaflets outside the plant, Superintendent Degen ordered Albert Azar to "chase" Shada "away" from the plant. Degen prefaced this instruction by saying that he had just talked with Presi- dent Max Beckerman on the telephone and Beckerman had directed him to convey the order. Degen also approached Subrey Azar at- this time and said to him that Max Beckerman had ordered that he "go out and beat [the union organizer and] chase him away from there." Neither of the Azars was willing to carry out Degen's orders. In so iliforming Degen, they bottomed their refusal on an experience which they had in 1937 when, at Degen's direction, they assaulted a union organizer.6 Degen remonstrated with each of the Azars for refusing to attack Shada, telling them that Max Beckerman would shut clown the plant the minute it became organized and that they would then all be out of work. The Azars, however, failed to heed his remonstrance. The findings -relating to this incident are based upon the testimony of the Azars; Degen and Max Beckerman gave contrary testimony. In resolving the conflict, we, as did the Trial Examiner; credit the Azars. Several considerations impel us to this conclusion : first, as we hereinafter point out, Beckerman's credibility Neither Max Beckerman nor Degen denied the testimony of Subrey Azar upon which this finding is based 6 The Union attempted in 1937 to organize the Kutztown plant when several union organizers appeared outside the plant one day, the Azars were told by Degen "to beat [the union organizers ] up,"-to quote from Albert Azar's testimony . In carrying out Degen's orders, the Azars assaulted one of the organizers ; a criminal prosecution followed The Azars were held to bail by the magistrate ' for the action of the grand jury . Bail was furnished through Max Beckerman , and the arrangements for the release of the Azars were made by the respondent 's attorneys. The criminal prosecution terminated when the grand jury failed to indict . Degen denied that he instructed the Azars to commit the assault which led to the criminal proceeding , contending that they had acted on their own initiative. Neither the Tral Examiner nor we credit his denial. 440 - DECISIONS OF NATIONAL LABOR RELATIONS, BOARD is impeached by his implausible explanation for the termination of the Azars' employment ; secondly, Degen's veracity , as we hereinafter show; is impugned by the false explanation he gave for, the termina- tion of Bryant's employment-an explanation, it should be noted, which was contradicted by the very witness upon whom the respond- ent relied for its confirmation ; and finally, the other incidents, de- scribed in this subsection, persuasively demonstrate that Beckerman and Degen had a deep-seated antagonism to the Union , and antagonism which affords a plausible motive for the Shada episode. On October 21, 1940, in the evening, Shada, accompanied by another organizer, visited Edwin Haas, an employee of the stitching depart- ment, for the purpose of inducing Haas to join the Union . Later that night, after Shada and his companion had left Haas' home, Louis Beckerman and David Beckerman , the son and nephew, respectively, of President Max Beckerman , paid Haas an unprecedented visit. Either Louis or David Beckerman observed that Haas had "had com- pany," after which David Beckerman asked Haas whether Albert Azar had instigated the stitchers to demand higher wages ; Haas replied in the negative.7 Superintendent Degen approached Haas at work the" next day and said that he heard Haas had a "party" at his home the night before. Degen went on to say, in the words of Haas, "* * * it is wrong to fool with this kind of people ; they get you into trouble." Haas re- plied: "* * * I lost one good job on account of the union , I didn't sign up, and. I don't want to lose another one." Superintendent Degen then declared that Haas would be better off not to join the Union even if the Union were able to obtain a wage increase for the employees since they would be called upon to support strikes at other plants. In general terms, Degen denied that he had ever discussed joining the Union with any employee , but he did not specifically deny the state- ments attributed to him by Haas. The Trial Examiner believed Haas' testimony ; we concur. - Anna Haas, the wife of Edwin Haas, worked for the respondent in a department over which Eli Beckerman , a brother of President Max Beckerman , -was the foreman . She joined the Union on October 21, 1940, and persuaded several of her fellow workers to join. On Oc- tober 26, 1940, Foreman Eli Beckerman asked her to report to him after working hours. At the close of the day Eli Beckerman asked her whether it was true, as he had heard, that she was a member of the Union and had induced other employees to join. Haas admitted that such was the case , but said that she had not as yet turned in the union membership applications which her fellow workers had signed. On hearing this, Eli Beckerman reminded her that she had worked a 7 The findings as to this conversation rest upon the uncontradicted testimony of Haas. BECKERMAN SHOE CORPORATION OF KUTZTOWN 441 long time for the respondent and earned that his brother, President Max Beckerman, would remove the Kutztown plant rather than toler- ate a union among the employees.' He then admonished her to "think it over," pointing out that she would be without a job if the plant was removed. In the course of this conversation, Eli Beckerman argued against the Union by' saying that it would compel its members to support strikes at other plants by imposing fines upon them. About December 1, 1940, Foreman Eli Beckerman approached Anna Haas at her machine and asked whether she had received a pamphlet which Shada, the union organizer, distributed at a gathering the night before.8 On receiving a negative reply, he alluded to an election for union officers that had recently been held, saving * * that last fellow, he just filled his pockets and now * * * another fellow has got his place and he will fill his pockets at the expense of the poor." In the latter part of October 1940, Foreman Eli Beckerman asked another employee, Elsie M. - Zuber, to- see him after working hours. When she reported to him, he told her that he heard that Anna Haas was "signing up people in the Union." After making this statement, he asked Zuber to "talk some sense into Anna Haas' head," adding, "before Beckerman spends any money he will move out of town." The findings as to Eli Beckerman's anti-union remarks are based upon the testimony of Anna Haas and Elsie M. Zuber. Eli Beckerman did not specifically deny the statements attributed to him by-these witnesses; when asked whether he had advised another employee not to join the Union, he did, however, deny in general terms that he had ever dis- cussed joining the Union with anyone. The Trial Examiner did not credit his denial, nor do we. In October 1940, Superintendent Degen told Howard H. Schlegel,- another employee, that he heard Schlegel was a union member and that union meetings were being held at his home. Schlegel assured Degeri that he was not a union member and said that he was not even thinking of joining the Union. In-November 1940, however, Schlegel attended a union meeting. When he came to work the next morning, Sam Beckerman, his foreman, remarked : "Well, I heard you were at a union meeting last night." Schlegel admitted that this report was correct,. whereupon Sam Beckerman asked Schlegel who attended the union meeting and what took place. In answer to this question Schlegel said that in addition to Elsie Zuber and Arlene.Adams,.who accompanied, him to the meeting, only a few employees, including the Azars, were present, and that no business was transacted because of the poor attendance; . Superintendent Degeli also questioned- Schlegel 8'The question eliciting the testimony concerning this conversation refers to Louis Instead of Eli Beckerman ; but the context indicates that Eli Beckerman was intended. 442 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD that morning about the union meeting and was told in substance what Sam Beckerman had been told.9 Lee G. Bryant, an employee who, we later find, was discriminatorily discharged, joined the Union in October 1940 and solicited his fellow workers to join. Soon after he became a union member, Superintend- ent Degen chided him for his union activity. Degen administered this reproof when Bryant was putting,shoes on a rack, to which a, ticket was affixed indicating that the shoes were destined for future delivery.- Ad verting to the ticket, Degen said to Bryant: ". . . Mr. Beckerman has got to pay you fellows now and wait all this time until that very date you see there before he really gets his money and still you want to go and pull the dirt .. . is that the thing to do?" We agree with the Trial Examiner that Bryant was justified in inferring that Degen's remark was levelled at Bryant's union activity. Early in November 1940, Degen, referring to a union meeting which had taken place the night before, asked Bryant : "How was the beer and pretzels?" When Bryant professed not to understand his question, Degen remarked : "Well, you know what I mean, . . . that [the Union] doesn't get•you any place; it will only mean a couple of cents more, and it won't get you any place at all." Degen testified that he did not know that Bryant was a union member; he did not, however, directly deny having made the anti-union statements attributed to him by Bryant. We find, as did the Trial Examiner, that he made those statements. • We find, as did the Trial Examiner, that by its course of conduct in warning its employees not to join the Union and not to solicit others to join, in urging them to give up their'union membership,,in threaten- ing them with the loss of their employment if the Union succeeded in organizing the Kutztown plant, in threatening to close or remove the plant rather than tolerate a union, in inciting the Azars to attack Shada, the union organizer, in order to prevent his distributing leaflets among its employees, in making derogatory remarks about the union leaders, in questioning employees about their union membership and the identity of those attending union meetings and about the busi- ness done at such meetings, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Discriminatory discharges Albert and Subrey Azar. Albert Azar was employed by the respond- ent in December 1935; Subrey Azar, his cousin, entered its employ in October 1936. They were both working foremen; that is, in addition to their duties as supervisors, at times they did ordinary production 9 The findings in this paragraph are based upon Schlegel 's testimony , which was not directly controverted. BECKERVIAN SHOE CORPORATION' OF KUTZTOWN . 443 work. - Their employment terminated under like circumstances on October 22, 1940. In his Intermediate Report, dated August 16 , 1941, the Trial Exam- iner found that the Azars had been- discriminatorily discharged and that the refusal to reinstate them was likewise discriminatory. In so finding the Trial Examiner rejected the contention that the Azars had quit voluntarily . The Azars' testimony concerning their discharge was corroborated by Charles Haddad, another working foreman, who, the Trial Examiner found , had also been discharged discriminatorily. At the supplemental hearing, Charles Haddad testified , in effect, that subsequent to the first hearing he informed Max Beckerman and cer- tain other persons that the'Azars and lie had quit voluntarily . Haddad declined on constitutional grounds, however , to say whether his testi- mony at the first hearing, or the aforesaid statement was true. Find- ing that Haddad had made the recanting statement , the Trial Exam- iner 'recommended in the Supplemental Intermediate Report that the complaint be dismissed not only as to Haddad but also as to the Azars. We have examined the evidence which Haddad gave at both hearings and are convinced that none of his testimony can be relied upon. We are convinced further that he has no regard for the truth or the sanc- tity of an oath. In view of his lack of integrity we do not think that his reinstatement would effectuate the policies of the Act. Accord- ingly, we shall dismiss the complaint as to him .10 We are constrained, however, to reject the Trial Examiner's recommendation that the com- plaint be dismissed as to the Azars since we believe them to be trust- worthy witnesses. We shall now briefly set forth the facts which impel us to this conclusion." As, we have heretofore noted, the Azars joined the Union in the early stages of its membership campaign and solicited other employees to join. While the union campaign was under way, the employees in Albert Azar's department stopped work in furtherance of- their de- mand for a wage increase , and, as has been noted , their militancy was attributed by Max Beckerman to Albert Azar . Most of the coercive measures which the respondent employed to prevent its workers from becoming or remaining members of the Union occurred before October 22, 1940, when the Azars were discharged .12 Indeed, the most striking of these measures, namely Superintendent Degen's instruction that the Azars attack the union organizer occurred - on October 21, -the day preceding their dismissal . These facts Which clearly reveal the 10 Cf The Cudahy Packing Co. v. National Labor Relations Board, 116 F. (2d) 367 (C. C. A. 8), order on petition to vacate the enforcement decree. 11 We have given no weight to Charles ITaddad's testimony in determining the issues re- lating to the discharge of the Azars because we believe Charles'Haddad to be a wholly unreliable witness 11 See Subsection A, supra 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent's deep-seated opposition to the Union. are the setting in which conflicting evidence as to the circumstances attending the dis- charge of the Azars must be viewed. The Azars' version of their discharge was in substance as-follows: On October 22, 1940, shortly before noon President Max Beckerman asked Albert Azar, who was then working at his machine, to come to his office with Subrey Azar and Charles Haddad, saying that he wanted to confer with them. When the three men entered the inner office, they found Max Beckerman there alone. Beckerman directed one of them to close the door, and then upbraided the Azars for having refused to attack Shada, the union organizer. Albert Azar replied that they were "not going to do that dirty work any more," because, he said, they had been prosecuted in 1937 for that very misconduct. Beckerman's rejoinder, according to Albert Azar, was: "What is the matter with youse guys, are you working for the Union? Well, get the hell out of here; you can't work for the Union and for me too; you are nothing but trouble makers; you can't serve two masters." Hear- ing this, the Azars left Beckerman's office, believing that they had been discharged 13 Max Beckerman's version of the incident was in substance as fol- lows : He testified that he arrived at the Kutztown plant shortly before noon that day; that the Azars and Haddad were already in the outer office when he arrived; that he invited them into his inner office, whereupon one of them announced that they had decided to quit, say- ing, according to Beckerman, "Your superintendent is watching me [sic]"; that he expostulated that he did not understand why they were quitting but that the men "would not give any explanation at all"; that he told them their. employment contracts required them to give 30 days' notice of an intention to quit, but that they simply repeated that "they didn't want to work any more in [his] place." Beckerman opened the door, he said, on hearing this, and told the men, "goodbye, and we quit." Several witnesses called by the respondent testified that the Azars had either voiced an intention of quitting or had ad- mitted, subsequent to their dismissal, that they had quit. The Azars denied the statements attributed to them by these witnesses. We are i8 On October 23, 1940, the day following their discharge, the Azars and Haddad filed claims for benefits under the Unemployment Compensation Act of the Commonwealth of Pennsylvania. The respondent, in resisting their claims, contended that the men had quit voluntarily, and had not been discharged . On December 23, 1940, a hearing was had be- fore a Referee of the Division of Unemployment Compensation , in ixhich the Azars and Haddad , as well as other witnesses , were examined . The employees received compensation, since the issue was resolved in their favor. A transcript of the testimony in the Unem- ployment Compensation hearing was introduced in evidence before the Trial Examiner with the consent of the respondent. ,In resolving the conflict in testimony, we, as^did the Trial Examiner , considered the testimony which the Azars gave at the Unemployment Compensation hearing. In its brief to the Trial Examiner ( p. 2), the respondent expressly suggested that this testimony be considered. BECKEMIIAN SHOE CORPORATION OF KUT'ZTOWN 445 ,unable to credit the respondent's version of the October 22 occurrence. Itappears to us highly improbable that employees who had spent years in the service of an employer should abruptly announce an intention to quit, without first voicing their grievance in terms comprehensible to their employer. Furthermore, it is difficult to believe that- these employees should quit at a time when, as the credible- evidence shows, they had no other employment.'' It is also not' without significance that they filed claims for unemployment compensation on the day following their discharge. We do not believe that the Azars quit their employment voluntarily. We are convinced,. rather, and find, that Max Beckerman discharged them on October 22, 1940, because of their ,unwillingness to assist the respondent in combatting the Union.15 =Moreover, the circumstances attending the respondent's refusal to reemploy the Azars lend support to the conclusion that they had not quit voluntarily. On October 25, 1940, President Max Beckerman sent letters to the Azars enclosing checks for the balance of the wages due them, in which he stated : "I was hoping that you would change your mind about quitting and in fact I even waited around Kutztown for the entire day, expecting you to tell-me that you intend to remain with us." Oil October 29, Max Beckerman agreed to meet the Azars and Haddad, at their request, but deliberately failed to keep the appointment. When Beckerman failed to appear, the Azars' replied to the above letter, denying that they had quit and stating that their discharge violated their employment contracts. The respondent's attorneys answered these letters, saying that Max Beckerman would meet the Azars and Haddad on November 6, 1940. Accompanied • by an attorney, the Azars kept this appointment. At the outset of this conference, the attorney for the Azars informed Max Beckerman that the Azars desired to return to work but Beck- erman refused to consider the question of their reinstatement, saying that their jobs had already been filled. There is no evidence, how- ever, to support Beckerman's-assertion that their jobs had in fact been filled at this time; he had-been told, moreover, according to the uncon- tradicted testimony of Albert Azar, on October 29, when Albert Azar arranged the appointment that Beckerman failed to keep, that the appointment was desired for the purpose of "straighten[ing] things out," so that the men could "go back -to work." At the November 6 14 We are unable to believe the testimony of Robert E. Gallagher that Albert Azar expressed a desire to go into business for himself. - 15That the Azars were working foremen does not, of course, deprive them of the Act's protection See Matter of Golden Turkey hlinany Company and International Union of Mine, Mill, and Smelter Workers, Local No. 410, 34 N L R B 760. See also Matter of Eagle-Picher Mining it Smelting Corp. and Eagle-Picher Lead Company, a corporation, and International Union of Mine, Mill and Smeller Workers , Locals Nos. 15, 17, 107, 105, and 111, 16 N L R. B 727, enforced in Eagle-Picher Mining it Smelting Co v National Labor Relations Board, 119 F (2d) 903 (C. C. A 8). 446 DECISIONS OF,NATIONAL LABOR RELATIONS BOARD conference Beckerman's attorney urged him to talk things over; Beck- erman's reply was : "The only time I talk is in court." The conference ended at this point. ^ We are" unable to believe that the respondent had replaced these men, either on October.. 29 or on November 6, 1940. We find that the respondent refused to reemploy them on November 6, 1940, because Max Beckerman resented their unwillingness to assist him in combatting the Union. As has been noted, the Trial Examiner found in his original Inter- mediate Report that the Azars had been -discriminatorily discharged. In so finding, the Trial Examiner rejected. Beckerman's version of what occurred. The Trial Examiner came to this conclusion after finding that Beckerman's explanation for the discharge of the Azars was implausible, and that the Azars' testimony concerning their dis- charge was persuasively confirmed by Beckerman's refusal to rehire them as well as by otherocircumstances. The only significant fact developed at the supplemental hearing was Haddad's admission that he made the extrajudicial recanting statement attributed to him. On that alone, so far as we know, since the Supplemental Intermediate Report contains no other explanation, the Trial Examiner recom- mended. a dismissal of the complaint not only as to Haddad but also as to the_Azars. We do not think that Haddad's extrajudicial recant- ing statement should be given such weight as to override the convincing testimony of the Azars, especially in view of the patent implausibility of Beckerman's explanation for the termination of their employment. We find that by discharging and refusing to reemploy Albert Azar and Subrey Azar, the respondent has discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the Union, and interfering with, restraining , and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. Lee G. Bryant. Bryant was discharged by 'Superintendent Degen on December 17, 1940, after being in the respondent's employ for about 9 months. The respondent asserted that it discharged him because of unsatisfactory work and because he sold "policy slips" 16 and obscene -photographs-in the plant. Bryant,joined the Union in October 1940 and persuaded other em- ployees to join. As has been noted, Superintendent Degen reproved Bryant for joining-the Union and later told him that his union mem- bership would get him nowhere .17 Bryant was first employed as a "bottom finisher"; he was later assigned work. described in the record as "pressing joints." On De- cember 16, 1940, Superintendent Degen told Bryant that he would be I 16 These are participations in a method of gambling in which the holder of the "policy slips" bets that certain numbers will be drawn in a lottery See New Standard Dictionary of the English Language, Funk and Wagnalls, p 1918. 11 See Subsection A, supra. BECKERMAN SHOE' CORPORATION OF KUTZTOWN 447 transferred to the cutting department. Such a transfer was desirable from Bryant's point of view since a cutter -earns more than a joint presser. , Foreman Samuel Beckerman, who was in charge of the cut- ting department, testified that "to be a real cutter" one would have to spend years at the trade. Nevertheless, after Bryant had worked in the cutting department for only a day and a half, Foreman Samuel Beckerman instructed Bryant to return to his former job, saying that he would never become a competent cutter. Bryant reported this to Superintendent Degen and asked to be restored to his former job. But Degen turned down Bryant's request, saying that he had "talk[ed] too much." Degen added that Bryant would be put to work in the bottom finishing department. Hearing this, Bryant expostulated : "this is demoting a guy right back to the very beginning of things . .." Bryant also pointed-out to Degen that he could not earn a living in the bottom finishing department since he would have only about 3 days' work a week. But his protest was unavailing; Degen gave him the alternative of working in the bottom finishing department or being discharged. Faced with this ultimatum, Bryant 'said nothing further. - After Bryant left Degen, he met Eli Beckerman, a son of Max Beckerman, and one of the foremen, and voiced his grievance to them. Later in the day, after Bryant had begun to work in the bottom finish- ing department, Superintendent Degen entered the department, where- upon Bryant renewed his request to be restored to his former job. Remarking that -Bryant had "a silvery tongue," Degen said in reply to Bryant's entreaty : "Just for talking like that, * * * I have a Christmas . present for you." After making this statement, Degen 'discharged Bryant. The findings set forth above -accord with Bryant's' 'testimony. Degen gave a different account of Bryant's discharge. Degen testified that Bryant appeared to be dissatisfied on being- as- signed to the bottom finishing department; that Bryant was talking instead of working when he (Degen) entered the department; that when he came into the department an employee named Ritter told him that Bryant was trying to sell him lottery tickets and was keeping him frpm his work ; that he thereupon reprimanded Bryant, saying that Bryant should not work at all if he was unwilling to work "with a proper feeling." Bryant's rejoinder, according to Degen was: "I can go out with the slot machines and writing [sic] policy tickets and make better money." "So," continued Degen, "I took the man up in the office and paid him off." Ritter, who testified as a witness for the respondent, said that Bryant had attempted to sell him a policy `slip on only one occasion; that he did not report the incident to his foreman, and gave it no thought until Superintendent- Degen ques' 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tioned him about it. But, Ritter testified, Degen questioned him about Bryant some 2 months after Bryant had been discharged. " This was directly contrary to Degen's testimony that Ritter had complained to him about Bryant on the day that Bryant was discharged; that, in fact, it was Ritter's complaint which precipitated the discharge. Noting this discrepancy, the Trial Examiner rejected Degen's ver- sion of the discharge. We, too, are unable to ,accept Degen's version of the occurrence. We find, as did the Trial Examiner, that Bryant's testimony correctly described his discharge and the events leading to his discharge. Apart from Degen's uncorroborated assertion that Bryant was slow and Bryant's brief experience in the cutting department, there is no evidence that his work had been unsatisfactory. We are satisfied, as was the Trial Examiner, that Bryant was not dismissed for that reason. Nor do we believe that Bryant was discharged for selling policy slips or indecent photographs. Degen, it is true, testified that he had cautioned Bryant regarding those matters, but admitted at the hear- ing that the admonition was delivered about 6 months prior to Bryant's discharge. Eli Beckerman testifiedrthat he himself `bought policy slips from Bryant but he placed the most recent purchase at 5-to 6 months prior to Bryant's discharge. • Ritter testified that Bryant attempted to sell him obscene photographs; but, he said, this occurred about 3 months prior to Bryant's dismissal and was never mentioned by him to anyone until Degen questioned him about 2 months after Bryant was discharged. It is apparent, and we find, as did the Trial Examiner, that the resurrection of these incidents was an attempt to justify Bryant's discharge in retrospect, and that they did not motivate his dismissal. On May 8, 1941, the complaint in this proceeding was issued. President Max Beckerman thereafter sent for Bryant and offered him reinstatement on condition that he sign a document agreeing that he would 'not again sell policy slips in the plant and would be subject to discharge if he violated that undertaking. Although at first Bryant was unwilling to sign the document, protesting that he had never sold policy slips, he yielded to Beckerman's demand because of his neces- sitous circumstances. This incident confirms us in the conviction, 'as it:did the Trial Examiner, that the respondent tried to construct a case against Bryant in order to conceal the discriminatory motive for his discharge. We find, as did the Trial Examiner, that the respondent discharged Lee G. Bryant because of his union membership and activity. We find, further, that by discharging Bryant, the respondent has discrim- inated in regard to his hire and tenure of employment, thereby dis- couraging membership in the Union, and interfering with, restraining, BECKERMAN SHOE CORPORATION OF KUTZTOWN" 449 and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Anna Haas, Howard H. ,Schlegel. In his Intermediate Report, dated August 16, 1941, the Trial Examiner found that the respondent did'- not -discriminatorily discharge Anna, Haas and Howard H. . Schlegel; he accordingly recommended, that the complaint be dis- missed as-to them. The Union filed.no exceptions to the Intermediate Report.- We' have nevertheless 'examined the record with respect to these employees and agree with the Trial Examiner's findings. We shall 'accordingly dismiss the complaint as to them. '. , IV. THE EFFECT OF THE UNFAIR,LABOR PRACTICES UPON COMMERCE; The activities -of-the respondent set forth in Section III 'above, occurring in colinection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among- the several States, and tend to lead to .labor disputes burdening and. obstructing commerce and the, free'flow of commerce." V. THE REMEDY Having found that -the respondent has engaged in unfair labor practices, we shall order it. to cease and desist therefrom. and that it take certain affirmative action which will effectuate the policies of the Act. We have found that the respondent has discriminated in regard to the hire and tenure of employment of Albert Azar, Subrey Azar, and Lee G. Bryant. We shall direct the respondent to reinstate the Azars to their former positions, without prejudice to their seniority and other rights and privileges." We shall also order the respondent to make whole Albert Azar and Subrey Azar for any loss of pay they have suffered by,reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his-discharge, to November.24, 1941, the date of the Supplemental Intermediate Report and from the date of this Decision and Order to the date of the respondent's offer of rein- statement, less his net earnings- 19 during such period. We have" ex- is Bryant, as has been noted, was reinstated prior to the hearing 19 By "net earnings" is meant earnings less expenses such as transportation, room, and board incurred by an employee in connection with obtaining work and working elsewhere than for the respondent which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking eniplovment elsewhere. See Matter of Crossett - Lumber Compaaiy and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, S N. L. R. B 440. Monies received for work per- formed upon Federal, State, county, municipal, and other work-relief projects shall be considered as earnings See Republic Steel Corporation v. National Labor Relations Board, 311 U. S. 7. 4S1039--42-vol 43-29 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eluded from the period during which back pay is'awarded the Azars the period that the Trial Examiner's Supplemental Intermediate Re- port was outstanding, since during that period the respondent could not have been expected to reinstate, them. ` We find no merit in the respondent's contention that reinstatement, and`remedial pay should be denied these men because of releases which they executed subsequent to their discharge. We have affirmed the ruling of' the' Trial Examiner which excluded these releases from evi- dence.. In the 'exeicise of our administrative discretion, we have determined that private-settlements should not stay us from vindicat- ing the policies of the Act by remedying unfair labor practices involved in the discriminatory discharge of employees.20 This is not to say that in determining how much back pay is due these employees, the respondent may not be entitled to credit for part of the sums paid for the releases. Whether or not it should receive such credit is a question that, concerns compliance with our order, not its propriety.21 ,,rWe;shall also order the respondent to make Lee G. Bryant whole for any loss of pay he has suffered by reason of the respondent's discrim- ination against him by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date 'of hi"s discharge to. the date of his reinstatement, less his net earnings The respondent's entire course of conduct, including its many and varied forms of interference, restraint, and coercion and its discrim- inatory discharges discloses a fixed purpose on its part to defeat self- organization and its objects., Because of the respondent's unlawful conduct•in the past and its underlying purpose we are convinced that tliere is it danger in the future of the respondent's engaging in other related unfair labor practices prpsiribed by the Act. The preventive purpose of the Act will be thwarted unless'our order is coextensive with the threat. In order, therefore, to make effective the interde- pendent guarantees of Section 7, to prevent a recurrence of unfair n That we have such discretion is a corollary from the exclusive authority to prevent unfair labor practices which, the Act confers upon its (Section 10 (a)). Conformably with this view it has been held that only the Board can compromise an award of back pay made to a`wrongfully discharged employee ( National Labor Relations Board v. American Potash & Chemical Co, 113 F. (2dj 232 (C. C. A. 9) ; further, that only the Board has the right to` institute proceedings to punish an employer for contempt of a court decree enforcing a Board order (Amalgamated Utility ' ltorkers v. Consolidated Edison Co, 309 U S 261, 269-270 ). See also National Labor Relations Board v. William H. Killoren, Trustee, 122 F. (2d) 609, 612 (C C A 8), cert denied 314, U. S 696 n In determining that question it will be necessary to ascertain whether or not the con- sideration paid for the releases was intended to make reparation for the wage loss suffered by these men as the result of their discriminator y discharge ; or, whether, as the recitals in the releases and their terms seem to indicate , the releases ,were intended solely to bar claims arising out of the respondent 's alleged violation of the Fair Labor ' Standards Act and its asserted breach of the employment contracts which it had entered into with these employees. Only so much of the consideration paid as was intended to reimburse the employees for the wage loss they suffered - by reason of their wrongful discharge may be credited to the respondent on account of its back-pay liability hereunder BECKERMAN SHOE CORPORATION OF KTTT'ZTOWN 451 labor practices, and thereby to minimize strife which burdens and' obstructs commerce, and thus to effectuate the policies of the Act, we shall order the respondent to cease and desist from in any manner infringing the rights- guaranteed in'Section 7 of the Act.' Upon the basis of the above findings of fact, and' upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. United Shoe Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire andtenure of employment of Albert .Azar,, Subrey Azar, and, Lee G. Bryant, and thereby dis- couraging membership in United, Shoe Workers of America, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 -(3) of the Act.' 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent did not discriminate in regard to the hire and tenure of employment of Charles Haddad, Anna Haas, and Howard H. Schlegel, within the meaning of Section 8 (3) of the 'Act. ° ORDER - Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act,,the National Labor Relations Board hereby orders that the-respondent, Beckerman Shoe Corporation of Kutztown, Kutztown, Pennsylvania; and its officers, agents, successors,'and assigns shall: V' - 1. Cease and desist from : : _ - - (a) Discouraging membership in United Shoe Workers of America, or any other labor organization of its employees, by- discharging or. refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage -in concerted activ- ities for the purpose of collective bargaining and other mutual aid or 452 DECISIONS OF NATIONAL LABOR,RELATIONS BOARD protection as guaranteed in Section 7 of the National Labor Relations Act. 2. Take, the following affirmative action which the Board finds will effectuate the policies of,the Act: (a). Offer to Albert Azar and Subrey Azar immediate and full reinstatement to their former positions, without, prejudice to their seniority and other rights and privileges; (b) Make whole Albert.Azar and Subrey Azar for any loss of pay they have suffered by reason,of the respondent's discrimination against them by payment'to each of them of a sum of money equal to that which he normally would have earned' as wages from October 22, 1940, the date of his discharge, to November 24, 1941, the date of the Supple- mental Intermediate Report, and from the date of this Decision and Order to the date of 'the respondent's offer of reinstatement; less his net earnings during said periods; . (c) Make whole Lee G. Bryant for any loss of pay he has suffered by reason of the respondent's, discrimination against him by payment to him of a sum *of money equal to that which he normally would have earned as wages from December 17, 1940, the date 'of his discharge, to the date of his reinstatement, less his net earnings during that period ; (d) Post immediately in conspicuous places throughout the re- spondent's plant and'maintain for a,period of at least sixty ( 60) con- secutive days notices to its employees, stating: (1) that the respond- ent will not engage in the conduct from which it has been ordered to cease and desist in paragraphs 1 (a) and (b) ; (2) that it will take the affirmative action set forth in paragraphs 2 (a'), (b), and ( c) of this Order; and (3) that the respondent's employees are free to become or remain members of'United Shoe Workers of America, affiliated with the Congress,of Industrial Organikations, and that the respondent will not discriminate against any employee because of membership or activity in that organization;. (e) Notify the Regional Director for the Fourth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith; AND IT IS FURTHER ORDERED that the allegations of the complaint with respect to Anna Haas, Howard H. Schlegel, and Charles Haddad. be, and they hereby are, dismissed.