Arcade-Sunshine Company, Inc.

In the Matter of ARCADE-SUNSHINE COMPANY, INC. and LAUNDRY WORKERS CLEANERS & DYERS UNION Case No. C-579.-Decided April 15, 1939 Laundry and Dry Cleaning Industry-Interference, Restraint, and Coercion: anti-union speech ; anti-union statements ; circulation among employees for their Si.Ignatures, of "loyalty" petition, constituting pledge not to strike- Discrimination; discharge , for union membership and activity ; charges of, not sustained as to one employee-Reinstatement Ordered: discharged employee- Back Pay: awarded to employee discharged for union membership and activities ; monies received for work performed upon Federal, State, county , municipal, or other work-relief projects to be deducted and paid over to agency which supplied funds for said projects. Mr. Reeves R. Hilton and Mr. Sannuel M. Spencer, for the Board. Mr. Alvin L. Newmyer, Mr. Ringgold Hart, and Mr. Joseph A. Kaufmann, all of Washington, D. C., for the respondent. Mr. Sidney C. Schlesinger, Mr. Frank Scott, and Mr. Jack Kutner, all of Washington, D. C., for the Union. Mr. Harry Cooper, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On July 2, 1937, Laundry Workers Cleaners and Dyers Interna- tional Union, Local 187, herein called the Union," and on August 11. 1937, Laundry Workers Cleaners and Dyers Union, filed a charge and an amended charge, respectively, with the Regional Director for the Fifth Region (Baltimore, Maryland), alleging that Arcade-Sun- shine Company, Inc., Washington, D. C., herein called the respondent, had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of the National Labor Relations Act, i Laundry Workers Cleaners and Dyers International Union, Local 187 , affiliated with the American Federation of Labor, functioned as an unaffiliated labor organization known as Laundry Workers Cleaners and Dyers Union, between the last week in July 1937 and September 24, 1937, when it became affiliated with the Committee for Industrial Organiza- tion. See footnote 2. As used herein, the word "Union" refers to the organization in each of its affiliated or unaffiliated forms. 12 N. L. R. B., No. 38. 259 169134-39-vol. 12-18 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 49 Stat. 449, herein called the Act. Upon the amended charge, the National Labor Relations Board, herein called the Board, by the Regional Director, issued its complaint and accompanying notice of hearing, dated November 19, 1937, copies of which were duly served upon the respondent and the Union. The complaint, charging 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, alleged in substance (1) that the respondent on or about June 26, 1937, discharged and refused to reinstate Alexander Parker and Joseph H. Gordon, and on or about July 31, 1937, discharged and re- fused to reinstate William Jones, three of its employees , for the reason that they joined and assisted the Union and engaged in con- certed activities with other employees at the respondent's plant for the purpose of collective bargaining and other mutual aid and protec- tion ; and (2 ) that the respondent, by and through its servants and agents, intimidated , restrained, and coerced its employees, and in other ways attempted to prevent them from joining a labor organization of their own choosing. The respondent filed an answer, denying the unfair labor practices charged, and averring affirmatively that Parker was replaced when he did not report for work , that Gordon quit, and that Jones was dismissed for drunkenness. Notices of two postponements of hearing were duly served upon the parties. Pursuant to notice, a hearing was held at Washington, D. C., on March 22, 28, 29, and 30, 1938, before Lawrence J. Kosters, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the end of the Board's case, counsel for the Board moved to dismiss the allegations of the complaint in so far as they related to the alleged discharge of Joseph Gordon. Counsel for the Board also moved that the complaint be conformed to the proof adduced at the hearing. The Trial Examiner granted both motions, without objection . Counsel for the respondent moved to dismiss the allegations of the complaint with regard to the cases of Alexander Parker and William Jones . The motion was denied. At the close of the respondent's case, counsel for the respondent moved that the answer be conformed to the proof adduced at the hearing. No objection was made and the motion was granted . At the end of the hearing, counsel for the respondent made a formal motion for the dismissal of each charge against the respondent . The motion was denied. Other motions and objections to the admission of evidence ARCADE-SUNSHINE COMPANY, INC. 261 were made and ruled upon at the hearing. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On April 22, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties. The Trial Examiner found that the respondent had engaged in and was engag- ing in unfair labor practices affecting commerce, within the mean- ing of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from the unfair labor practices and that it offer to Alexander Parker and William Jones immediate and full reinstatement to their former positions with back pay. He also recommended that the allegations of the com- plaint relating to the discharge of Joseph Gordon be dismissed. On May 5, 1938, the respondent filed its Exceptions to the Inter- mediate Report and requested oral argument, permission to file briefs, and a reopening of the record for the taking of further evidence before a member of the Board. The request for reopening the, record is hereby denied. Pursuant to notice, a hearing was held before the Board on October 25, 1938, in Washington, D. C., for the purpose of oral argument. The respondent and the Union were represented by counsel but only counsel for the respondent partici- pated in the argument. During the oral argument, counsel for the respondent was granted permission to file a brief with the Board. On November 4, 1938, the respondent filed its brief which the Board has considered. The Board has also considered the exceptions to the Intermediate Report, and in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS or FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Arcade-Sunshine Company, Inc., a Delaware corporation maintaining its plant and office in Washington, D. C., is engaged in the business of operating a laundry and dry cleaning establishment. In the course of its business the respondent also cleans, dyes, and stores carpets and rugs. The respondent's operations are carried on principally in the Dis- trict of Columbia where it also performs services for a small number of customers who reside in the State of Maryland. The respondent does an annual volume of business ranging in amount from $750,000 to $1,000,000, and employs an average of 350 to 400 employees. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE UNION Laundry Workers Cleaners and Dyers Union is a labor organiza- tion affiliated with the Committee for Industrial Organization through affiliation with Journeymen Tailors' Union of America, Local Union No. 188, which is in turn affiliated with Amalgamated Clothing Workers of America. The Union admits to membership all employees in the laundry industry in the District of Columbia, except super- visory employees having the authority to hire and discharge. Prior to July 1937, the Union was known as Laundry Workers Cleaners and Dyers International Union, Local 187, and was affiliated with the American Federation of Labor. Between July and September 1937 the Union was an unaffiliated labor organization.2 III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion During February, March, and April, 1937, the Union conducted a campaign to organize the laundry workers in the District of Colum- bia including the respondent's employees. Leaflets were distributed, meetings were held, and a number of the respondent's employees joined the Union. During the latter part of June the Union called a strike in the industry and although the strike did not purport to include the respondent's employees, the respondent's plant was pick- eted for several days and some of its employees participated therein for half a day. The strike lasted for 3 weeks, after which the Union negotiated collective bargaining agreements with other laundries in the District of Columbia. Although the Union similarly sought to negotiate with the respondent and several conferences were held, the record does not disclose the result of such negotiations. In the latter part of June employees in the flatwork department of the respondent's plant joined in a 10-minute stoppage of work for the purpose of securing an increase in wages. Melvin Viner, the respond- ent's vice president, general manager, and treasurer, entered the 2 During the first week in July 1937, Local 187 was informed that it was suspended from its parent body and by letter dated July 7, 1937, was informed "that the Charter of Local 187 has been revoked the past year ." Immediately thereafter the members of Local 187 , at a meeting assembled unanimously voted authority to its executive com- mittee to negotiate with the Committee for Industrial Organization for affiliation with that organization. At the same meeting the name of Local 187 was changed to Laundry Workers Cleaners and Dyers Union. From the first week of July 1937 to September 24, 1937, Laundry Workers Cleaners and Dyers Union functioned as an unaffiliated labor organization . During that period meetings were held , business transacted, and contracts negotiated . The membership and officers of former Local 187 remained the same. On September 24, 1937, Laundry Workers Cleaners and Dyers Union became a branch of Journeymen Tailors' Union of America , Local Union No. 188. ARCADE-SUNSHINE COMPANY, INC. 263 department and promised the employees in the department a wage increase when his father, Harry Viner, president of the respondent, who was out of town, returned. With this understanding the em- ployees resumed work. Several days thereafter, at or about the time the plant was being picketed, Rose Moran, floorlady in the flatwork department, requested Harry Viner to address the employees in her department and re- assure them that the wage increase promised by his son would be forthcoming. Moran directed the employees under her supervision to go to the girls' lunch and locker room after working hours, where the president would talk to them. At least one employee was told by her floorlady "that Mr. Viner (Harry) had somebody to talk to us." Under such instructions about 40 colored employees assembled in the locker room. Harry Viner attended the meeting accompanied by one Risher, a part-time employee of the respondent.3 Melvin Viner, Moran, and the respondent's cashier, among others, were also present. Harry Viner reassured the employees that the promised wage increase would materialize and introduced Risher, saying "that he was one of our people and he was there to talk to us and show us the right way to go " According to the testimony of witnesses who were present, Risher stated, among other things, that "the union ... didn't make any good to us . . . that the union being of no service to the black face and that they were only trying to get our money and he would prefer us not to bother with the union and that he thought it was best for us to organize a union of ourselves." At the hearing Risher denied the statements attributed to him, but admitted that he "cautioned them (the employees) as to undue haste in selecting the organization to join . . . and told them what I knew about the former attitude of the American Federation of Labor towards negroes, which had not been friendly." The record reveals that Risher disapproved of cer- tain activities of the Union. In view of his admissions and his hos- tility toward the Union, we find that he made the statements attrib- uted to him. We also find that in making these statements he acted in behalf of the respondent. Several days thereafter, while the plant was being picketed, the following petition was conceived at a meeting of the respondent's executives and managerial employees : 3 According to his own testimony , Risher "from approximately 1915 . . . inter- mittently rendered services to the Arcade-Sunshine . . . as well as to Mr. Harry Viner in a personal capacity " and was "in the plant as a result of employment at that time." His services for the respondent consisted , among other things, of the solicitation of laundering contracts. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE, THE UNDERSIGNED AGREE TO BE LOYAL TO THE ARCADE-SUNSHINE AND REMAIN AT OUR POST UNDER PRESENT WORKING CONDITIONS. The petition, typed on sheets of paper containing the names of all employees of the respondent, was circulated among them, at least in part during working hours, by executive and supervisory em- ployees. Upon the request of the executives and supervisors, 331 of a total of 357 employees in the plant signed the petition. The respondent contends that customers who were aware of the strike and the picketing inquired whether it was safe to send their laundry to the respondent's plant, and that the petition was circulated in order to "find out from employees whether or not they [were] willing to continue to work, with the idea of giving that information to our customers . . ." There is no evidence that the petition was in fact shown to customers although there is some testimony that it was mentioned in response to inquiries by telephone. We do not believe that the respondent's primary motive in circu- lating the petition was to apprise its customers that their laundry would be serviced and safely delivered. In the light of the respond- ent's expressed hostility toward the Union and other activity car- ried on to discourage membership of its employees therein, the infer- ence is clear that it desired to offset the collective action of its employees, and we so find. Regardless of the motive for its circulation, however, the pledge constituted an interference with rights guaranteed by the Act. An agreement not to strike is, on its face, a limitation on the exercise of such a right-the right to engage in concerted activities. Such a. limitation also interferes with the right to self-organization, since it eliminates one of the most effective methods of organization and one of the activities for which organization is designed. The limitation may be unobjectionable when reached as a result of collective bar- gaining with the representatives of the employees in an appropriate unit; 4 in such case, by hypothesis, organization has been attained, and the conclusion of the agreement is itself an exercise of the right of engaging in collective activities. But imposition of such a limita- tion upon the individual employee may constitute not only a form of coercion resulting from the inequality of bargaining position, but also an obstruction, at the outset, to the development of effective organization, concerted activity, and collective bargaining. The threat of cessation of work is practically the only economic force available to employees to invoke in their attempt to obtain conces- sions from their employer. Deprived of the, possibility of utilizing * Cf. Matter of Shell Petroleum Corporation and International Union of Operating Engineers, 10 N. L. R. B. 719. ARCADE-SUNSHINE COMPANY, INC. 265 this economic force before collective bargaining secures such conces- sions, the right to organize and bargain as guaranteed by the Act becomes meaningless. Its exercise would be futile. To the extent that the respondent, as a part of its sales practices, deprived its em- ployees of the rights guaranteed under the Act, it engaged in an unfair labor practice.5 The respondent's discouragement of collective activity in its plant and membership of its employees in the Union is further illustrated in its treatment of the truck drivers. On July 3, 1937, shortly after the employees in the flatwork department had been granted a wage increase, the respondent's truck drivers stopped work for 5 or 10 minutes to prepare a similar request. Alexander Parker, one of the oldest drivers in the plant and a member of the Union, was selected to make the request of the respondent. During the discussion among the drivers, Brisker, the respondent's cashier, entered the service room where they were gathered and asked what they were doing. Either Parker or another driver, one Cook, demanded a wage in- crease for the truck drivers. Brisker thereupon took Cook aside and conversed with him. Immediately thereafter, according to Parker, Brisker called Parker into his office and referring to his previous conversation with Cook, accused Parker of being the "leader," and "trying to get the drivers to join the union." He advised Parker "not to agitate the union; [he] might lose [his] job." Brisker then called in all the drivers and informed them that he would take up the matter of a wage increase with Harry Viner when the latter returned. The drivers thereupon resumed work. At the hearing Brisker gave a different version of the events on that day and denied the anti-union statements attributed to him by Parker. The testimony of Harry Viner with respect to these events as reported to him by Brisker tends to confirm Parker's testimony. From all the evidence we find that Brisker made the statements attrib- uted to him by Parker. Harry Viner returned to the plant early the same evening, and was informed by Brisker that there had been some "trouble" that afternoon and that Parker and his fellow drivers had engaged in a stoppage of work. When Parker returned to the plant that evening to request an advance on his salary, Viner called him into his office, asked him what trouble he had caused in the plant, advised him of the 5 See National Labor Relations Board v. Star Publishing Co., 97 F. (2d) 465 (C. C. A. 9th), where the Court rejected the Company's contention that it had been justified in discriminating against certain of its employees because a failure to do so would have disrupted its business. The Court stated : "The act prohibits unfair labor practices in all cases. It permits no immunity because the employer may think that the exigencies of the moment require infraction of the statute. In fact, nothing in the statute permits or justifies its violation by the employer." 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD report that he "was agitating the union among the drivers," and told him "don't do it again." Harry Viner denied saying anything to Parker about the Union, but admitted talking to him about the stoppage of work that afternoon, and admitted telling him, "don't do it again," with reference to that incident. In view of Viner's admission, and his anti-union conduct as evidenced by the speech of Risher and the circulation of the petition, we do not credit his denial and find that he sought to discourage Parker from pursuing his concerted activities and to discourage his membership in the Union. Three or four months later, Parker, whose employment had ter- minated 6 following the incidents described above, returned to the plant and asked Harry Viner for reinstatement. Viner asked him what assistance he was deriving from the Union, and upon receiving the answer "nothing," added "you see what benefit you get." Viner then called Brisker, and asked him if he had a position available for Parker. Brisker stated that he did not but that when he had need for his services he would let Parker know. Viner urged Parker to talk to employees "to keep them from joining the union" and gave him a loan of $2. Viner denied ever talking to Parker concerning his union membership. We are satisfied, however, that he made the statements attributed to him by Parker. Parker was reinstated to his former position on January 31, 1938. On that day Brisker informed him, in the presence of Melvin Viner, that he had an opening for him "if you want to go back to work and do the right thing . . ." Although Parker had received $21 a week prior to July 3, Brisker offered him $18, stating : "go ahead and take the $18 and see how you get along and if you do the right thing you don't have to worry; we will fix you up . . . you have been out of work for quite a while and being with the union . . . now we will take you back, but we don't want no messing around. We want you to make your mind up and play ball with the company or play ball with the union." Either Brisker or Melvin Viner added, ". . . if you think you can go back and do the right thing, all right. We don't want to see you around talking about the union, and if a fellow comes around and says anything about . . . the union, tell them to get out of the place . . ." A month thereafter Parker's wage was increased to $20 per week. Melvin Viner denied ever discussing the Union with anyone in the plant and Brisker denied telling Parker to "play ball" with the Union or with the respondent. Brisker did not deny the remainder of the conversation. That Parker's reinstatement was in fact condi- tioned upon his doing the "right thing" is confirmed by the testimony 6 The termination of employment is discussed below. ARCADE-SUNSHINE CODIPANY, INC. 267 of Harry Viner.7 We find that Brisker or Melvin Viner made the statements attributed to them by Parker. We are satisfied from the record that by these statements the respondent conditioned Parker's reinstatement upon his refraining from union activity or other con- certed activity. We find that the respondent, by the speech of Risher, the circula- tion of the afore-mentioned petition,8 and the foregoing statements to Parker by the respondent's president, vice president, and cashier, has interfered with, restrained, and coerced its employees in the exer- cise of the'rights guaranteed by Section 7 of the Act. On January 28, 1938, following the issuance of the complaint in this case, the respondent laid off four employees, Dyer, Gibson, Rob- inson, and Wright, who worked on one mangle in the flatwork department. Three of them had been employed by the respondent for 12, 9, and 7 years, respectively, and had seniority over other employees. At least two of them were members of the Union and attended meetings at the time of the lay-off. A third, Dyer, had been selected by employees of that department early on the day of the lay-off to request another wage increase. On the morning of January 28, Melvin Viner came into the flat- work department before the request could be made, called the crew of employees on the mangle nearest to his office into the office, and when they returned it was reported that he would see other employees later. At the end of the day the floorlady called the four employees in question into her office, informed them that the respondent had too many employees and was compelled to lay them off, and that "we four had been selected." Melvin Viner informed them, upon being asked why they were being laid off, that "he had different reasons," and they were "the ones that had been pointed out to let go." At least three of these employees had received no complaints about their work, nor had they ever been laid off or disciplined before. The respondent claims that the lay-offs were occasioned by the fact that production costs were too high. The respondent's floorlady who selected the employees to be laid off testified with respect to the basis for her selection. According to her testimony, she "looked for the ones that had given me the most trouble." She admitted that she did not base the selection on seniority, although Brisker men- tioned seniority first as a basis for lay-offs during the slow season of the respondent's business. According to the floorlady, Wright was ' Viner testified that Brisker asked him if he should reinstate Parker if the latter would "do the right thing" 8 Cf. Matter of American Manufacturing Company and Textile Workers' Organizing Committee, 5 N. L R. B. 443, 449; Matter of Arthur L. Colten, and A. J. Colman, co- partners, doing business as Kiddie Kover Manufacturing Company, and Amalgamated Clothing Workers of America, 6 N. L. R. B. 355, 362. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laid off because she had on occasion left her table, chattered inces- santly, and had received warnings about "mixing up" her work; Dyer because she was "disagreeable" and could not get along with other employees; and Robinson because she was "full of play," and did not attend to her work. In view of the long terms of employment of these employees we do not believe the floorlady's testimony with respect to the reasons for selecting the employees to be laid off. The respondent's past course of illegal conduct, and the surrounding circumstances under which the lay-offs were made, viz, the inclusion of Dyer, the employees' representative for the purposes of collective bargaining, the arbitrary selection of two other employees to be laid off, and the occurrence of the lay-offs during the course of an attempt on the part of the employees of the flatwork department to bargain collectively with the respondent, convinces us that these employees were selected for this lay-off in order to discourage concerted action by the respondent's employees for the purpose of collective bargaining. Although the lay-offs discussed above were not alleged in the com- plaint to have been discriminatory within the meaning of the Act, they illustrate the respondent's hostility toward the efforts of its employees to engage in collective action, and tend to explain the fore- going unfair labor practices.9 B. The alleged discharge of Parker and the discharge of Jones Alexander Parker was employed by the respondent in 1931 as a truck driver. He signed an application for membership in the Union on June 25, 1937, being among the first drivers in the plant to join. The respondent contends that Parker quit his employment on July 3, 1937. As described above under subsection A, on July 3 Parker had been chosen by the truck drivers to present their demands to the management and had been subjected to severe criticism from Brisker and Harry Viner for engaging in such collective activity. It is ap- parent that his union membership was known to the respondent and provoked the discriminatory remarks from the respondent as detailed above. A regular part of Parker's duties included a Sunday trip to the Ambassador Hotel for the purpose of collecting laundry. The record shows that Parker was usually instructed every Saturday to make the 9 Cf. National Labor Relations Board v. Pacflic Greyhound Lines, 91 F. (2d) 458 (C. C. A. 9), affd. 303 U. S. 272; Matter of M. Lowenstein & Sons, Inc. and Bookkeepers', Stenographers' and Accountants' Union, Local No. 16, United Office and Professional Workers of America, C. 1. 0., et al., 6 N. L. R. B. 216; Matter of American Smelting and Relining Company and The Industrial Local Union of the Copper Workers of the Committee of Industrial Organization, 7 N. L. R. B. 735. ARCADE-SUNSHINE COMPANY, INC. 269 trip and that he customarily performed this task unless he asked to be relieved. On Saturday night, July 3, Brisker asked Parker to make the Sunday collection. Parker refused, claiming that his helper, Harris, had informed him that Harry Viner had told Harris to make the trip and that he, Harry Viner, did not want Parker "anywhere around the plant." Parker told Brisker "I am not making the trip; you can take the job, as far as I am concerned." Brisker advised Parker to use his own judgment in believing Harris and asked him if he was quitting. Parker replied, "to Hell with the place." Parker testified that when he told Brisker that the latter could "take the job" he was referring only to the Sunday trip. Harris did not testify at the hearing. Brisker denied having instructed Harris to makke the Sunday trip and Harry Viner denied having spoken to Harris. Parker did not appear at the plant on Sunday and was replaced by Harris. Parker testified that he reported to work on Monday, that his supervisor, the respondent's service manager, told him to see Harry Viner before he took his truck out, that he saw Viner later that morn- ing, and that Viner told him he did not want to see him, refused to say whether he was discharged or not, and told him to "get your money." According to Parker, he procured his wages and returned on the following day to withdraw his Christmas savings. Langstream, the respondent's service manager, testified that Parker did not report to work at any time on Monday. According to Harry Viner, Parker attempted to see him on Tuesday when he was out of the office. Parker returned on Wednesday and asked "can I get my job back." Viner testified that he asked Parker why he had quit and had not reported for work on Sunday, and that Parker related what Harris had allegedly told him with respect to the Sunday trip. Viner finally told Parker to take up the matter of reinstatement with Langstream. Brisker testified that he was informed by Langstream that Parker did not appear on Monday morning, that Parker came in on Tuesday, the regular pay day, said nothing about going to work, and collected his wages. Bieber, the assistant service manager, corrob- orated Brisker's testimony in this respect. As described above, Parker was reinstated in January 1938. Although Parker's case is not free from doubt, we think that the respondent's contention that he quit his employment is supported by the evidence. The allegations of the complaint, in so far as they allege that the respondent discharged and refused to reinstate Parker, will accordingly be dismissed. William Jones was employed by the respondent on September 14, 1926, engaged in pressing and steaming garments. He was dis- charged on August 4, 1934, due to "drinking while working," and rehired 3 days later. He continued in the respondent's employ as a 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presser and steamer until on or about July 24, 1937, when he was discharged. The respondent contends that Jones was again dis- charged because of drunkenness. Jones signed an application card for membership in the Union about May 13, and became an active member. He distributed union circulars, "talked" about the Union, and attended meetings thereof. The evidence shows that on two occasions Jones was questioned con- cerning his attendance at union meetings by Branch, his foreman, and by Harry Viner. About 2 weeks before his discharge Jones was re- quested by Brisker, in the presence of Melvin Viner, during working hours, to sign the "loyalty" petition, described above. As there indi- cated, most of the respondent's employees including all the pressers in Jones' department signed the petition. Jones refused to sign. During the afternoon of Saturday, July 24, 1937, Jones was laid off by his foreman, Branch, and was told to return in a few days to see Harry Viner. The evidence shows that Jones was under the influence of liquor during that afternoon and could not perform his work. Branch took Jones' time card for the week to the cashier and informed him that Jones would not need his card any longer. On Monday Branch similarly disposed of the time card for the following week. Jones returned to the plant on the Wednesday morning following his lay-off, failed to find his card in the rack, and was referred by Branch to Harry Viner. Jones spoke to Harry Viner either that Wednesday or the following Saturday and asked the latter what he, Viner, was "going to do." According to Jones, Viner answered, "Why. Jones, you talk too much around here; you walk around and talk about the union." Jones denied that he talked more than other employees. Viner replied ". . . that is all right. I know. I got somebody to tell me." Branch informed Jones that he would let him know when he had work for him, but has since failed to communicate with Jones, and the latter has never returned to work for the respondent. Al- though Viner denied ever talking to Jones about his union member- ship, we are satisfied from the evidence that he made the statements attributed to him by Jones. It is clear that Jones was an intemperate employee. He admitted that he drank, sometimes before working hours and, in the past, sometimes during working hours. The record shows that Jones ou occasion came to work in an intoxicated condition and had to be sent home or absented himself from the plant due to intoxication. There is also evidence that the respondent received complaints regarding the steaming of velvets and other apparel, most of which work was done by Jones, although Branch himself also performed steaming operations. In order to determine, however, whether Jones was dis- charged because of his habitual intoxication, it is necessary to con- sider the testimony of some of the respondent's witnesses. ARCADE-SUNSHINE COMPANY, INC. 271 According to Branch, Jones had reported for work in an intoxicated condition practically every day over a period of 10 years and was a thoroughly unreliable employee. He was drunk "all the time" and could not perform his work; furthermore, ever since his employment, Branch had received complaints about the steaming of garments. Branch further testified that he "couldn't count" the number of times he warned Jones and showed him his poor work and that the latter would usually complete 50 to 60 coats daily whereas he should, under normal circumstances, handle 500. In addition, Harry Viner also observed Jones' condition and "practically every morning, or in the afternoon" over a period of 10 years, he called Branch's attention to Jones' state of intoxication. Branch's further testimony was that about once a week he was compelled to send Jones home because of his intoxication ; that he, Branch, thus "put up" with Jones for a period of 10 to 12 years. Harry Viner tended to corroborate Branch's testimony. Accord- ing to the former, ever since Jones had been employed, he frequently told Branch to discharge Jones sometimes as often as 3 times daily. Viner testified that he had urged Branch to discharge Jones "about a hundred or two-hundred times." Viner further testified that for a period of more than 10 years "there never wasn't a week there wasn't any trouble with Jones." Both Viner and Branch admitted, however. that when Jones was sober he was a competent employee. Viner also admitted on cross-examination that Jones was sober most of the time.' The respondent now urges that Jones was discharged because of his frequent intoxication. With respect to the witnesses who testi- fied regarding his habitual intoxication, the Trial Examiner stated in his Intermediate Report "It is very obvious to me that the wit- nesses were making a special effort to completely discredit Jones. Their testimony is not believed by me." The record plainly supports the Trial Examiner's observation. The testimony of Branch and Harry Viner shows an obvious effort to construct a case against Jones and to cover up the real reason for his discharge. It is highly improbable that any employer would endure an employee of the char- acter described by the respondent's witnesses; it is equally improb- able that such an employee would be kept on a pay roll for a period of many years during which his sobriety and efficiency were inter- rupted almost daily. It is apparent that Jones was not discharged because of his habitual intoxication, a condition which the respondent would have us believe it countenanced for over 10 years. As described above, the respondent was engaged in a course of conduct designed to discourage its employees from engaging in con- certed activities or joining the Union. Witness to such conduct was the speech by Risher, the circulation of the "loyalty" petition, and the anti-union statements directed to Parker. To similar purpose was 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the questioning of Jones with respect to his attendance at union meet- ings and the respondent's accusation at or about the time of his dis- charge that he talked "too much . . . about the Union." We are satisfied that Jones' union membership, his attendance at union meet- ings, and his conspicuous conduct in refusing to sign the "loyalty" petition proved more obnoxious to the respondent than his alleged 10 years of drunkenness. "While proof of the presence of proper causes at the time of discharge may have relevancy and circumstantial bearing in explaining what otherwise might appear as a discrimina- tory discharge, such proof is not conclusive. The issue is whether such causes in fact induced the discharge or whether they are but a justification of it in retrospect." 10 The conclusion is inescapable that because of his union activity the respondent seized upon Jones' intem- perance of many years' duration to offer as a reason for his discharge. The alleged reason for the discharge is palpably false. We conclude that Jones was discharged because of his membership in and activity on behalf of the Union.11 We find that the respondent, by discharging William Jones on or about July 24, 1937, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed by Section 7 of the Act. At the time of his discharge Jones earned $18 weekly. He has since earned about $116 at temporary employment, and desires rein- statement to his former position. IV. THE EFFECT 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 de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce within the District of Colum- bia, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent will be required to cease and 10 Matter of Kelly-Springfield Tire Company and United Rubber Workers of America, Local No. 86, et al, 6 N. L. R. B. 325, enforced in The Kelly-Springfield Tire Company v. National Labor Relations Board, 97 F. (2d) 1007 (C. C. A. 4th, 1938). 11 Cf Matter of U. S. Truck Company, Incorporated and International Union, United Automobile Workers of America, Local 174, 11 N. L. R B. 706, and Matter of Kelly-Sprting/leld Tire Company and United Rubber Workers of America, Local No. 26, et al, 6 N. L R. B 325, enforced in The Kelly-Springfield Tire Company v. National Labor Relations Board, 97 F. (2d) 1007 (C. C. A. 4th, 1938). ARCADE-SUNSHINE COMPANY, INC. 273 desist from such interference, restraint, and coercion. We have also found that the respondent discharged William Jones because of his membership in and activity on behalf of the Union. We shall there- fore order the respondent to offer William Jones immediate and full reinstatement to his former position, without prejudice to his senior- ity and other rights and privileges, and to make him whole for any loss of pay he has suffered by reason of his discharge by payment to him of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings 12 during said period. Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, the Board makes the following: CONCLUSIONS OF LAW 1. Laundry Workers Cleaners and Dyers Union is a labor organ- ization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of William Jones and thereby discouraging membership in a labor organization, 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 prac- tices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not discriminated in regard to the hire or tenure of employment of Alexander Parker, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the "By "net earnings" is meant earnings less expenses , such as for transportation, room and board, incurred by an employee in connection with obtaining work and working elsewhere than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590 , 8 N. L R. B. 440. Monies received for work performed upon Federal, State, county, municipal , or other work-relief projects are not considered as earnings, but, as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work -relief projects., 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent, Arcade-Sunshine Company, Inc., and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Laundry Workers Cleaners and Dyers Union 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 or tenure of employment or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, 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, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to William Jones immediate and full reinstatement to his former position without prejudice to his seniority and other rights and privileges; (b) Make William Jones whole for any loss of pay he has suffered by reason of his discharge by paying to him a sum` of money equal to that which he would normally have earned as wages during the period from the date of his discharge to the date of such offer of reinstatement, less his net earnings 13 during said period;-deducting, however, from the amount otherwise due him, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which sup- plied the funds for said work-relief projects; (c) Immediately post notices in conspicuous places throughout its plant, and maintain such notices for a period of sixty (60) consecu- tive days, stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a) and (b) and that it will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; (d) Notify the Regional Director for the Fifth 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 complaint, in so far as it alleges, with regard to Alexander Parker, that the respondent has engaged in and is engaging in unfair labor practices, within the mean- ing of Section 8 (3) of the Act, be, and it hereby is, dismissed. '8 See footnote 12, supra.