E. Hubschman & Sons, Inc., a Corporation

In the Matter of E. HIIBSCHMAN & SONS, INC., A CORPORATION and NATIONAL LEATHER WORKERS' ASSOCIATION, LOCAL No. 30, AFFILI- ATED WITH THE C. I. O. Case No. C'-!i60.Decided, August 5, .7939 Shoe Leather Manufacturing Industry-Interference, Restra int, and Cocr- cnon-Discrhainatian.: with respect to hire and tenure of employment : lay-offs of leaders , because of union membership and activity ; dismissed as to three employees , laid off in a fit of anger which was not induced by them and not directed at them-Reintstatement Ordered: employees discriminatorily laid off- Back Paq/: awarded : laid-off or discharged employees : from date of lay-off to (late of offer of reinstatement ; duty rests upon respondent to "disentangle" consequences of its unfair labor practices and to demonstrate these employees or any of them would not have had work at a later period. Mr. Joseph Castiello, for the Board. Sundheim, Fouz e S'undheim,, by Mr. Sylvan H. Hirsch, of Phila- delphia, Pa., for the respondent. Mr. William F. Regan, and Mr. Samuel Wolf, of Philadelphia, Pa., for the Union. Miss Margaret M. Farmer, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by the National Leather Workers' Association, Local No. 30, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsyl- vania), issued a complaint, dated December 4, 1937, against E. Hubschman & Sons, Inc., Philadelphia, Pennsylvania, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint, accompanied by notice of hearing, was duly served upon the respondent and upon the Union. 14 N. L. R. B.. No. 16. 225 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint alleged, so far as is here. material, that on or about July 7, 1937, the respondent terminated the employment of 10 named employees 1 because they joined and assisted the Union, thereby dis- criminating in regard to their hire and tenure of employment and discouraging membership in the Union ; that by these and other ,acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the right to organize and to engage in concerted activities for their mutual aid and protection.2 On December 11, 1937, the respondent filed its answer, denying generally the unfair labor practices alleged in the complaint and averring, by way of affirmative defense, that the employment of 10 employees named in the complaint, together with other employees not members of the Union, had been terminated solely for financial and economic reasons. Pursuant to notice a hearing was held, in Philadelphia, Pennsyl- vania, on December 15, 1937, before Henry W. Schmidt, the Trial Examiner duly designated by the Board. The respondent appeared and was represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bear- ing upon the issues was afforded all parties. At the close of the hearing the Board moved to conform the complaint to the proof, for the purposes of remedying minor variances between the complaint and the evidence. The Trial Examiner granted this motion. He also made various other rulings, including rulings on the admission of evidence. The Board has reviewed these rulings of the Trial Ex- aminer and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On March 10, 1938, the Trial Examiner filed an Intermediate Re- port, copies of which were duly served on the parties, finding that the respondent had engaged in unfair labor practices affecting com- merce, within the meaning of Section 8 (1) and ' (3) and Section 2 (6) and (7) of the Act, and recommending that the respondent desist therefrom, that it offer full reinstatement with back pay to the 10 employees named in the complaint, and that it take certain other action to remedy the situation brought about by its unfair labor prac- tices. Exceptions to the Intermediate Report and a request for oral argument before the Board were filed by the respondent. Briefs were submitted by both the respondent and the Union. On April 28, 1938, oral argument was had before the Board at Washington, D. C. The respondent was represented by counsel and presented argument. 1 The names of these employees are:. Joseph Dobisch , Bernard P'igiewski , Steven Haban, Steven Huniak , John Krempa , Louis Morrow, Andrew Schmidt , Mary Stobka , Joseph Wald- vogel, and Samuel wolf. _ 2 The complaint also alleged that the respondent dominated and interfered with the formation and administration of a labor organization and contributed financial and other support thereto . The Trial Examiner , on motion of the respondent , struck from the record all evidence introduced in respect of this allegation. E. HUBSCHMAN ' & SONS, INCORPORATED 227 On. October 14, 1938, there was lodged with the Board a certain written stipulation and agreement made by the respondent, the Union, and the Board through its, agent, wherein and whereby the parties thereto stipulated and agreed that certain tabulated information therein contained might be incorporated. into and made a. part of the record herein. The Board hereby directs the filing instanter of said stipulation and agreement as part of the record herein. The Board has considered the Exceptions to the Intermediate Re- port and in so far as they are inconsistent with the findings, con- clusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT E. Hubschman & Sons, Inc., a Pennsylvania corporation, with its plant and principal place of business in Philadelphia, Pennsylvania, is engaged in the manufacture and sale of fine calf upper leather of the grade used in the manufacture of ladies' and men's shoes. Raw materials used in the course of manufacture consisting of raw calf leather and chemicals are purchased annually by the respondent in the value of approximately $2,050,981. On the basis of value, ap- proximately 76 per cent of these materials are purchased and shipped to the plant from outside the State of Pennsylvania. Approxi- mately 91 per cent in value of the finished products are shipped from the plant by rail and water to States other than the State of Pennsyl- vania and to foreign countries. The respondent normally employs approximately 450 persons. II. THE UNION \ational Leather Workers' Association, Local No. 30, is a labor organization affiliated with the Congress of Industrial Organiza-' tions, admitting to its membership production employees in leather factories located in and around Philadelphia, Pennsylvania. III. THE UNFAIR LABOR PRACTICES A.. The discriminatory and allegedly discriminatory lay-offs National Leather Workers' Association began organizational work- among the leather workers of Philadelphia in April ' 1937. The. Union, chartered by this organization on June 2, 1937, was organized among these workers on a city-wide basis. The Union grew: rapidly and at the time of the hearing claimed - a membership of between 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1,400 and 1,500. As a part of its organizational drive, the Union dis- tributed leaflets in May or the early part of June 1937 at the entrance to the respondent's plant: Active solicitation for members,' which began about the middle of June, was carried on within the plant during lunch hours and before and after working hours by certain of the respondent's employees. By July 1937 over 100 of the respond- ent's employees were either members of the organization or otherwise had designated it their representative in collective bargaining with the respondent. On July 7, 1937, the employee leaders of the union-membership drive in the plant, seven in number,' together with five other employees, three of whom were also union members, were laid off. The 10 union members were all employed in the various "finishing" departments of the respondent's plant. Seven of these, Steven Haban, Andrew Schmidt, John Krempa, Mary Stobka, Steven Huniak, Louis Morrow, and Joseph Waldvogel worked as seasoners 4 on the sixth floor of the plant. Bernard Figlewski operated a boarding machine 5 and Samuel Wolf, a drying machine," both on the third floor. Joseph Dobisch was assistant shipper in the shipping room on the second floor. The record .shows that the campaign for union members within the plant began on the third floor and thereafter extended to the sixth floor. Bernard Fiqlewski was one of the union leaders and organizers on the third floor. He, together with Samuel Wolf, initiated the cam- paign on this floor. From the middle of June until the lay-offs on July 7, a period of approximately 3 weeks, they discussed the Union with fellow employees, distributed application cards for membership in the organization, and actively solicited members. That the re- spondent soon knew of Figlewski's union activity, as well as of the organizational activities generally on the floor, is evidenced by the fact that approximately a week after it commenced Fred Grugger, the fore- man on the third floor, in passing a group of employees which included Fig]ewski, addressed them as "C. I. O. boys." Figlewski testified that Shopa, a supervisory employee assisting Grugger, also was aware of his union sympathies and discussed the question of unions with him 4 or v days prior to his lay-off. At the hearing he recounted a conversation which he alleged to have occurred at this time between himself, Shopa, 8 The names of these leaders were Steven Haban , Andrew Schmidt , John Krempa, Mary Stobka, Bernard Figlewski , Samuel Wolf, and Joseph Dobisch. 4 Bulletin of the United States Bureau of Labor Statistics No. 589 (Wages and Hours of Labor in the Leather Industry, 1932) defines the occupations of seasoner and boarder as follows : Seasoner, leather, hand, clips brush and other device into seasoning solution and applies it to grain side of leather . After drying, application is repeated as many times as necessary. Boarder, leather, graining machine, operates machine used for softening leather and bringing out its grain. .8 See footnote 4. • 8 Wolf testified - that he dried skins immediately after they had been seasoned , in order to make them ready for glazing. E. HUBSCHIIAN & SONS, INCORPORATED 229 and one Hankin, a fellow employee who was Grugger's nephew. Ac- -cording to Figlewski, Shopa began the conversation by asking him what he thought about unions. When Fig] ewski replied that he. con- sidered them a "good thing because it would enable him to get things which he should have from the company," Shopa informed him that there had been unions in the plant in the past and that they always "went up." Figlewski remarked that from what conversation he had neard in the shop he had concluded that they disintegrated because "it al ways seemed that the company got its foot into it somehow and they laid the organizers off ... and other people had been afraid to speak for fear of losing their job." He testified that he also told Shopa `different things; about us getting small wages; some were figuring on .getting married, things like that; fellows getting married and were getting $18 a week. We were worth more than we were getting." Although Shopa denied that this conversation took place, we are of the opinion that it occurred substantially as related by Figlewski. As hereinafter set forth, Shopa's testimony is not entitled to credence. Figlewski was laid off by Shopa before quitting time on July 7 with the explanation that "there was no work." It appears from the record that upon this date Hubschman,7 an officer of the respondent, in- structed Shopa to shut down the boarding machine upon which Figlewski was working. Shopa asserted at the hearing that in carry- ing out these instructions he found it necessary to lay off both Figlew- ski and his (Shopa's) cousin, who were the operators of the machine. This statement was contradicted by the respondent's witness, its book- keeper, who testified that the respondent's records showed that on July- 7 the respondent laid off only two employees in addition to the 10 employees named in the complaint. One of these two employees worked in the pickling department and the second in the shipping room. Figlewski testified that Shopa's cousin was not laid off on July 7. Although the bookkeeper attempted later in his testimony to explain his statement by saying that he might have omitted the name of Shopa's cousin by mistake, we see no reason to doubt the accuracy of his original testimony. We are constrained to believe, and we find that Shopa's cousin was not laid off on July 7 but was. retained and transferred to other work at the plant. Shopa's cousin was junior to Figlewski in point of service. The record shows that a boarder named Hankin, who was operating another boarding machine and who was not laid off at this time, was also junior to Figlewski in point of service. Furthermore, there were upon the floor at this time four or five other employees also junior in point of service who were performing work which Figlewski had performed and for which he was fitted. Figlewski was a workman of wide experience 'It is not clear from the evidence which one of the three Hubschmans issued these instructions. However the evidence indicates generally that this was Jesse Hubscbman. -230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -and in his 31/2 years of employment with the respondent had. satis- factorily handled many types of work on two floors of the plant, .including, the third floor. There was no showing by the. respondent, although the matter was one peculiarly within its knowledge, that the work to which Shopa's cousin was transferred or work being done by others on the floor could not have been successfully undertaken by Figlewski. Under these circumstances we are satisfied and we find that Figlewski was laid off at a time when work for which he was fitted was available at the respondent's plant and was then being performed by employees his junior in service. It thus is. clearly established that his lay-off was in violation of his seniority rights. The respondent contended at the hearing that the lay-offs followed a departmental seniority rule, that 'employees youngest in point of service in their particular departments were laid off irrespective of whether they were older than other employees in other departments and had previously performed and were fitted to perform the work of such. other employees. For reasons appearing hereinafter, we are satisfied that no strictly departmental seniority rule was followed. Rather, we are convinced and we find that it was the respondent's .practice in connection with lay-offs to make provision for its older employees. The claimed rule does not explain the lay-off of Figlewski -who was dismissed when a boarder junior to him was retained and another boarder also his junior was given other work. At the time of the hearing Figlewski had earned approximately $283.12 at two -temporary jobs obtained since his lay-off. Samuel Wolf, who was probably the most active and enthusiastic union man in the plant, solicited members on the sixth floor and in the beam house on the first floor of the plant, as well as on the third floor where he was employed. As above stated he also worked under Shopa.. At the time of his lay-off he had been employed continuously by the respondent for approximately 2 years. He testified that dur- ing the period of union activity prior to his lay-off he had had many conversations with Shopa and another employee, Shopa's "counter," concerning labor organizations. He stated that a strike called.by the Committee for Industrial Organization, the organization with which the Union was affiliated, in a neighboring factory and at its height during this period had been discussed and that Shopa had made bitterly derogatory remarks about "the C. I. O." Wolf testified that Shopa- knew that he was a member of the Union, and that this was plain from the fact that the "counter" had asked him in Shopa's presence if he was "president or one of the big shots" of the Union and Shopa had laughed. Shopa professed at the hearing to be ignorant of any union activities among the employees. He denied that he had mentioned the Union to Figlewski or to Wolf or to other employees or that he was aware that the Union had any members in B. H•UBSCHMAN & SONS, INCORPORATED 231 the plant. However, Shopa admitted in the course of cross-examina- tion that he had touched upon the subject of a neighboring "C. I. O." strike in a conversation with Wolf but maintained that his remarks had been limited to an expression of sympathy for the strikers. We cannot believe that a union membership drive dependent upon the solicitation of members within the respondent's plant and successful to the point of enrolling more than one fourth of the respondent's employees within the Union's ranks during the course of a few weeks could have been wholly unnoticed by a shop foreman. In the light of all the testimony adduced both in regard to the conversation de- tailed above and in regard to subsequent events, we are of the opinion that Shopa is not a credible witness. We are equally satisfied and find that the events and conversation as testified to by Wolf occurred as he stated. A day or so before his lay-off, as he returned to work after a lunch- period visit to the sixth floor, Wolf was accosted by Grugger, the fore- man on the third floor, and peremptorily forbidden to visit the sixth floor again. No explanation other than "it is orders" was given Wolf for this restriction upon his freedom of movement within the plant. This incident occurred when union activities had been spreading from the third to the sixth floor.' We think it plain that the imposition of the restraint upon Wolf, which affected his movement about the plant even, on his own time, was to prevent him from having any possible communication with employees on the sixth floor about union matters. This imposition shows that the respondent was well aware of Wolf's union leadership and activities. When Wolf reported for work on the morning of July 7 he was told by Shopa, "You are laid off. When we want you we will call you." Later, when he inquired of Jesse Hubschman, the officer of the respond- ent in charge of production operations at the plant, the reason for this action he was informed briefly that business "is slow." Wolf de- nied at the hearing that work was slow in his department upon that date. As a defense to the allegations of illegal discrimination in the lay-off of Wolf, the respondent relied entirely upon its contention, re- peated throughout the proceedings, that lack of work in the various departments of the plant constituted the sole cause of the lay-offs not only of Wolf but also of the other employees named. in the complaint. Witnesses called by the respondent testified that between January and November 1937 the respondent's sales of skins decreased by approxi- 8 This is corroborated by a similar order given at that time by the respondent , without explanation , to employees on the sixth floor forbidding all but two from going to the .third floor , although previously it had been customary for sixth -floor seasoners to carry skins to the third floor in the normal course of the day' s work. Cf. Matter of Fansteel Mctailurgieal. Corporation-and Amalgamated , Association of Iron, Steel and Tin Workers of North iimerica, Local 66, 5 N. L. R. B. 930, 936-937, 939 affirmed as modified in Fansteel Metallurgical Corporation v. National Labor Relations Board, 59 S . Ct. 1938. 190935-40-vol. 14-16 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mately 50 per cent; that in times of depression the respondent's cus, tom has been to produce for "inventory purposes" and when so pro- ducing to have operations on skins cease prior to the "finishing" processes, the final processes, and to store the skins without subjecting them to these processes; and that between January and November 1937 inventory increased by approximately 45 per cent. It is con- tended that the respondent's afore-mentioned policy resulted in a con- dition of slack work occurring in its finishing departments necessitat- ing the laying off of the 10 employees named in the complaint who worked in these departments.° We are not convinced from anything appearing in the record 10 that skins processed but not finished were being stored and accumulated in such quantities prior to July 7, 1937, as to require a lay-off on that date of employees in the finishing departments, irrespective of whether employees at work in earlier stages of operations were being laid off. There is no satisfactory showing of the amount of skins allegedly 6 While there is testimony that "between 30 and 40 thousand " skins were stored without being finished "within six months" of December 15, 1937 , there is no showing that such storage occurred in any substantial amount prior to July 7. The testimony indicates some confusion between conditions in the finishing , departments on July 7 and conditions existent some months later. is There has been made part of the record a certain stipulation and agreement , as above -set forth , containing data with respect to the respondent ' s operations during the years 1936 and 1937 . These data appear in the following tables. In the column entitled "Skins in soak," is set forth the skins in soak, an initial process , for each of the respective months indicated ; in the column entitled "Skins in process" is set forth the total number of skins "in process," a succeeding stage of operations , for such month ; in the column entitled "Skins finished," the total number of skins "finished " In the finishing departments in such month ; in the column entitled "Skins sold," the total number of skins sold by the respondent in such month ; and in the column entitled "Skins on hand," the total number of skins on hand at the end of such month : Skins in soak Skins in process Skins fin- ished Skins sold Skins on hand 1937 January _____________________________ 114,904 110, 615 96, 523 122, 684 163,132 February ------------------- _.________ 100,460 105 , 742 106,333 99,742 169,723 March_______________________________ 94,760 89, 216 111, 286 112, 060 168,941 April________________________________ 83,040 85, 877 86, 379 54,234 200.986 May_________________________________ 87, 240 97,502 77,615 55,429 221,272 June_________________________________ 94,257 103 , 469 88,290 75,845 233,716 July --------------------------------- 57,072 83,092 77, 449 57 , 826 253,339 August______________________________ 51,880 72, 845 62,127 51 , 964 263,496 September___________________________ 54,856 73, 956 51,796 52,973 254,982 October_____________________________ 62,730 79,170 57,516 54,561 256,803 November ________________________ 70,142 90, 281 59,031 57,506 255,363 1936 January________________________ 109,514 113 , 753 114,905 113 , 056 244,611 February____________________________ 68,020 86,345 107,225 81,342 259,687 March_______________________________ 62,720 76 , 714 72, 321 82, 950 249,188 April________________________________ 65 , 290 83,146 58 . 858 62, 752 245,294 May ---------------------------------- 72, 890 87, 805 68, 231 53,332 260,193 Tune _______ ------- ------------------------ -- 77,760 86, 380 79,185 104,068 235,310 July_________________________________ 110, 435 109,656 87, 159 123,317 199,162 August ______________________________ 90,870 98, 943 101 , 783 85 , 054 199,705 September___________________________ 67,119 70,792 81,131 77, 959 212,861 October _____________________________ 95,420 85,500 80,712 83 , 600 209,973 November___________________________ 88,770 91,526 82,744 85,738 206,979 E. HUBSCHMAN & SON S, INCORPORATED 233 stored without "finishing" before that date.1' While from January to July 1937 skins on hand increased in number from 163,132 to 233,716, this increase was approximately the same in amount as the aggregate net increase in skins "finished" during that period, that is, the total excess in the number of skins "finished" over the number of skins sold.12 Accordingly, the increase in stock on hand cannot be taken as showing an increase in skins stored without finishing. The ratio of the skins "finished" to skins "in process" during the first 6 months of 1937 was approximately the same as in the first half of 1936.13 And since the number of skins finished and in process was about the same in both periods, this would indicate that, generally speaking, no greater amount of unfinished skins-was being stored in the first half of 1937 than in 1936. However, the respondent found no need at any time in 1936 because of a disproportionate accumulation of un- finished skins to lay off in its finishing departments the employees hereinafter found to have been discriminatorily laid off. We are satisfied, and we find, that prior to July 7 there was no occurrence of slack work in the finishing departments of such character as to induce or explain the lay-offs of Wolf and the other of these employees. Wolf and four of them testified that work in their departments was not slow at the time of the lay-offs. The number of skins "finished" in June 1937, 88,290, not only exceeded the number finished the pre- ceding May, but in fact was larger than the number of skins finished in 8 of the 11 months of 1936 for which statistics have been furnished. As stated above, the employees hereinafter found to have been dis- criminatorily laid off were not laid off in 1936. Even in July 1937, despite the lay-off s, the number of skins finished exceeded in amount the number finished in at least 3 of the,months of 1936.,. The number of skins finished in June 1937 is particularly significant in view of the fact, admitted by the respondent ,it the hearing, that an increase in wages accorded to employees in May 1937 was given because business was improving. This is corroborated by the fact that for the first "See footnote 13. 12See footnote 10. The aggregate amounts of skins "finished" and "in process" during the first 6 months of 1937 and of 1936, as well as the proportion of one to the other are set forth in the following table, based upon the facts contained in the tables in footnote 10 : January to July Skins finished Skins in process Proportion of skins finished to skins in process Per cent 94 ----------------------------------------------------- 1 564,476 592,421 93 1936-------------------------------------------------- 500,725 534,143 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6 months of 1937 the respondent sold 520,014 skins, whereas in the same period in 1936 it sold 497,500 skins. It sold more skins in June 1937 than the preceding month of May when the wage increase was given.. Nor is it shown that the amount of skins on hand at the end of June 1937 was unusually large. It 'was less than the amount on hand at the end of June 1936, or on hand at the end of any of the months in 1936 preceding June. While in August and continuing through September 1937 the respondent's sales of skins fell below its monthly sale for any month of 1936, and a general curtailment of business operations apparently then occurred, this fact cannot be taken as explaining lay-offs at an earlier time when such conditions did not obtain. In the light of the foregoing and our findings below as to the true cause of the lay-offs, we are of the opinion that the defense here urged of slack work on July 7, 1937, is a mere afterthought.'' Steven Haban, Andrew Schmidt, and John Krempa,11, three of the respondent's most skilled seasoners, were the leaders of the organizational drive on the sixth floor, to which floor the union activity spread soon after its initiation by Wolf and Figlewski on the third floor. These three employees distributed application cards for membership in the Union and talked to the. 60 or 70 employees in the seasoning department, persuading many of them to join the organization. Haban, who spoke Slovak, solicited members among the Slovak-speaking seasoners. Jesse Hubschman was constantly on this floor during the period of organizational activity preceding July 7, although his frequent presence there prior to this period had been unusual. During this period Zwada, the foreman on this floor, was frank in his expressions of hostility to the Union. He frequently addressed the women employees in Slovak, warning them that they would lose their jobs if they joined or aided the Union. He specifically forbade Haban to solicit members for the Union on the floor although Haban's solicitation had occurred during lunch periods, warning him "Steve, why you make trouble for me? I liked you best on the floor and you make trouble now. What is Jesse going to say . . . Steve, I don't want you to go around the, floor with applications and talk to womans . . . I don't want you to go even on lunch hour either. I want you to stop altogether to "The record indicates that on July 13, 7 employees were laid off; on July 28, 8; and during the succeeding months an additional 12 were laid off. There is no showing, although the matter was one within the respondent's peculiar knowledge, as to the work these individuals performed and the other facts attending their lay-offs. Under these circum- stances, the lay-offs of these employees cannot be taken as explaining the lay-off on July 7 of a large number of skilled employees in the finishing departments in violation of their seniority rights and at a time when conditions in these departments did, not warrant such action. 16 While Krempa did not testify at the hearing, the facts and circumstances herein shown concerning the alleged discriminatory lay-off of Haban and Schmidt are substantially the same in regard to Krempa. E. HUBSCHMAN & SONS, INCORPORATED 235 -talk about union . . . In case anything happens, don't blame me." When laid off by Hubschman, as hereinafter set forth. Haban in- quired of Zwada why new employees were not laid off first. The only reply Zwada vouchsafed him was "See, didn't I tell you, didn't I tell you?" Zwada admitted at the hearing, and it is clear, that he knew of the union activity on the floor and had discussed the matter with Hubschman. He claimed that he had attempted to curb discussion among the employees only during working hours. How- ever, the evidence shows that his action in this regard extended to discussion during the lunch hour. Although Zwada denied that he knew of or was interested in the union membership of Haban or of any other employee and although he insisted that his discussion with Hubschman had not included the naming of specific individuals,16 we believe the evidence amply sustains the conclusion and we find that both Hubschman and Zwada were well aware that Haban, Schmidt, and Krempa were leaders of the union movement in the seasoning department. Haban, Schmidt, and Krempa were laid off by Hubschman before quitting time on July 7. They were highly skilled workmen of long experience, engaged at this time in the seasoning of special skins.17 The three men immediately challenged Hubschman to explain the mo- tive underlying their lay-offs and an angry altercation ensued. They pointed out to hint that in previous periods when production had dropped far below its then present level the work had been "spread" and lay-offs had occurred among only the comparatively new em- ployees in the seasoning department. They accused him of violating their seniority rights. To this accusation Hubschman replied, "That is my business." At the hearing Hubschman maintained that these employees, although senior to many "regular" seasoners, were junior employees of the "special" seasoning department and, accordingly, that their lay-offs did not constitute a violation of their seniority rights. He stated that although it was the policy of the respond- ent to "spread" the work as much as possible during periods of depression in order to avoid lay-offs, it was against the respondent's policy to "degrade". or demote "special" seasoners by putting them back on "regular" seasoning work. He stated that the "special" seasoning department was differentiated from the "regular" season- ing department by a difference in the type of work done and by a higher rate of compensation. It appears from the record that "spe- cial" seasoners are employees who by reason of doing "regular" 16 Zwada gave as his reason for not naming individuals the fact that Hubschman was frequently on the floor and had ample opportunity to observe the conduct of individuals. 17 Haban and Schmidt had been in the employ of the respondent for 6 and 51/2 years respectively. Since a period of working on regular skins is a necessary prerequisite to working on special skins , we may assume that Krempa was also an experienced worker. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seasoning for a certain length of time become highly skilled and are then given "special" skins to work upon. After attaining the requi- site skill, they are given an increase in their rate of pay and they become known as "special" seasoners. They work in a section of the large room used by the "regular" seasoners. However, the record does not bear out the. respondent's contention that the seasoners were divided into two distinct departments for purposes of either work or seniority ratings. The record shows an interchange in the functions of "regular" and "special" 'seasoners. Schmidt at various times while working as "special" seasoner had been given "regular" skins to work upon when the supply of "special" skins decreased, and contrariwise when the supply of "special" skins had become unusually large skilled "regular" seasoners were assigned to help handle them. Schmidt testified without contradiction and we find that in previous slack periods new employees in the seasoning de- partment had been laid off but that he, Haban, and Krempa, who were the old employees in that department had not been laid off. We are satisfied from the foregoing in the light of the entire record that the respondent determined the seniority of its seasoners without regard to whether they were "special" or "regular" seasoners; that for the purposes of laying off in slack seasons it considered the seniority of all seasoners; and that in laying off Haban, Schmidt., and Krempa on July 7 it violated the seniority-. rights of said em- ployees. We find it incredible that new and comparatively unskilled employees should be retained in the respondent's service while old workers highly skilled at the same work should be laid off in order to avoid a "degrading." At the time of the hearing Haban had obtained work for 3 weeks in a Slovak church and had earned $67.50. Schmidt had held two temporary jobs, one as a caddy at a golf course and one as a cook's helper in P. restaurant; the exact amount of his earnings is not disclosed by the record. Maj &obka, a Slovak-speaking regular seasoner on the sixth floor, became a member of the Union approximately 2 weeks before her lay-off on July 7. She discussed the Union in Slovak during her lunch hours with the women in her department. She knew every woman seasoner on the floor. When Schmidt, who could not speak Slovak, wished to solicit the union membership of a Slovak-speaking seasoner, he took the seasoner to Stobka to enlist her aid. The inter- est in the Union shown by the women seasoners was of especial con- cern to Zwada, who, as has been previously mentioned, frequently addressed them in Slovak during the organizational period prior to July 7, loudly forbidding them to talk of the Union and warning them that they would lose their jobs if they joined it. We have no E. HUBSCHMLAN & SONS, INCORPORATED 237 doubt and we find that, in view of Zwada's knowledge of the union activity on this floor and the steps he took to suppress it, that Zwada, and accordingly the respondent, was aware of Stobka's part in the said activity. Stobka was laid off on July 7 by Zwada on orders from Hubschman. Although she requested an explanation of Zwada, none was accorded her. Zwada informed her that he did not know "exactly" why she was being laid off. Stobka was one of the senior employees in the department. That her work had been satisfactory is evidenced by the fact that in her 41/,, years' employment with the respondent she had been given several increases in wages and had suffered no pre- vious lay-offs. The respondent did not deny the fact as shown by the evidence, that on July 7, 10 employees in the department who were junior to her in point of service were retained. We think it clearly established that Stobka was laid off without regard to the quality of her work and in violation of her seniority rights; indeed, in complete disregard of the seniority rule which the respondent contended it followed. Steven Huniak, Louis Morrow, and Joseph Waldvogel were regu- lar seasoners. They worked together at a table near an archway lead- ing into the section of the seasoning department in which Haban, Schmidt, and Krempa worked. According to their testimony, in which all three were substantially in agreement and which we find to be true, they were laid off before quitting time on the afternoon of July 7 under the following circumstances: About the middle of the afternoon of July 7 they noticed Jesse Hubschman engaged in the afore-mentioned altercation with Haban, Schmidt, and Krempa. Shortly thereafter Hubschman "came shooting through the archway" into their section of the room. He was "red in the face" and very angry. He stopped in front of the table at which the three men were working, pointed his finger at them, and shouted "you and you and you stay home until I call you back." We find that these three employees were not laid off because of union membership or activities. We are of the opinion that Hubschman capriciously laid them off when in a state of anger and in order to assert his authority. We find that the respondent has not discriminated in regard to the hire and tenure of employment or any condition of employment of Steven Huniak, Louis Morrow, and Joseph Waldvogel, and of each of them, as alleged in the complaint, and, accordingly, we shall dis- miss the allegations of the complaint, as amended, in so far as they relate to these individuals. Joseph Dobisck, the junior of the two shippers in the plant, had been employed by the respondent for approximately 6 years at the time of his lay-off. He joined the Union early in June and imme- 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diately began organizational work among employees in the shipping and other departments occupying the second floor of the plant. Sears, his foreman, expressed hostility to "the C. I. 0." and asked Dobisch if he belonged to it. When Dobisch denied his membership, Sears remarked to another workman in Dobisch's presence that if he caught anyone belonging to "the,C. I. 0." he would lay him off. On July 7 Milton and Harry Hubschman, officers of the respondent, were in Dobisch's department and watched Dobisch. At the end of the day Sears informed him, "I got to lay you off. That is my orders from the bosses. I have been fighting the whole damn day for you. You are a good man, but I got to lay you off." When Do- bisch pointed out the fact that there were many employees on the floor junior to him in point of service Sears said that they were to be laid off, too, but that "it will all blow over in a week, like every- thing else blows over, It usually does." Dobisch had performed various jobs on the second floor before being made a shipper, and the record shows an amount of shipping work done by the other employees on the floor. At the hearing Sears denied any knowledge of union activity in the plant and maintained that he had laid off Dobisch on his own initiative in order to make room for the return to the shipping department of a former shipper named Gonzales. Sears explained that Gonzales had been promoted from the shipping room to the "wet" room on the fourth floor at some previous time but that work had become slack on the fourth floor and that Gonzales was transferred back to his former job in order that it might not be necessary to lay him off. The record shows that Gonzales was in fact transferred to the shipping room after Dobisch's lay-off. We do not find Sears' testimony to be credible in certain respects. As we said above in connection with the testimony of Shopa, we cannot believe that an intensive union membership drive carried on within the plant could have entirely escaped the notice of a shop foreman. Furthermore, in view of the statement of Jesse Hubschman at the hearing that all lay-offs were made in accordance with his orders, we do not believe that Sears laid off Dobisch on his own initiative. The respondent has not proved, moreover, that the return of Gonzales to the shipping department necessarily involved the lay-off of Do- bisch. There were on the floor at that time five employees junior to Dobisch in point of service who were performing work for which he was fitted. The record shows that only one shipping-room em- ployee in addition to Dobisch was laid off on July 7. Sears stated at the hearing that all five of these junior employees were laid off "about July 7." This statement was neither corroborated nor ampli- fied by other testimony and is too vague to be of substantial weight in our consideration in the instant case. We are satisfied from the E. HUBSCHMAN & SONS, INCORPORATED 239 foregoing and we find that the respondent knew of Dobisch's union membership and activity at the time it laid him off, and that irre- spective of whether the transfer of Gonzales to the shipping room was in pursuance of a seniority rule, the lay -off of Dobisch was in violation of seniority rights which he had over other employees on his floor. There is no claim that he could not perform the work of these other employees . The respondent cannot contend that the transfer of Gonzales from one department to another was in accord- ance with a general seniority rule, and insist in Dobisch's case that seniority as a shipper should control . Since his lay-off Dobisch has had no employment. As we have seen, Figlewski , Wolf, Haban, Schmidt, Krempa, Stobka, and Dobisch were leaders of a union membership drive within the respondent's plant, which, in the period of a few weeks resulted in the enrollment in the union ranks of approximately one fourth of the respondent's employees. The respondent was fully aware of the growth of this movement and knew the identity of its leaders. During the organizational period preceding July 7 the supervisors of the respondent, Shopa, Zwada, and Sears, expressed the respondent's hostility to unions. On July 7, the respondent suddenly laid off seven leaders of the movement . These seven employees were highly skilled workmen of long experience . Six of the seven were laid off in violation of their seniority rights. The seventh, Wolf, was an initiator of the union movement in the plant and one of its most active leaders. To the charges that these seven lay-offs were discrim- inatory, the respondent has interposed but one defense , that the lay- offs were necessitated by slack work. We have considered this de- fense heretofore in connection with the case of Wolf, and what was there said need not be repeated . Nor do we think it determinative of the issues here presented that on July 7 the respondent laid off Steven Huniak, Joseph Waldvogel , Louis Morrow, and two others concerning whom the record is silent, or that subsequent to that (late the respondent also laid off others. The record is plain that the afore- mentioned seven were discriminated against by the respondent. The example which the respondent sought to set by discriminatorily lay- ing off seven union leaders was no less perceptible to its employees because it found it necessary or desirable for some reason to lay off other employees.18 In any event, after considering the circum- stances surrounding the lay-offs of seven union leaders and upon the entire record we are convinced and we find that the respondent sought by laying off Figlewski, Wolf, Haban, Schmidt, Krempa, Stobka, and Dobisch to rid itself of these leaders of the Union for a 18 Matter of Servel, Inc. and United Electrical, Radio and Machine Workers of America, Local No . 1002, 11 N. L. R. B. 1295. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period of time at least, thus to destroy the union movement in its plant. By such conduct the respondent has discriminated against its employees in regard to hire and tenure of employment, thereby dis- couraging membership in a labor organization and has interfered with, coerced, and restrained its employees in the exercise of their rights guaranteed in Section 7 of the Act. B. The alleged company wnion Since Ave have affirmed the ruling of the Trial Examiner striking from the record all testimony concerning the alleged unfair labor practices under Section 8 (2) of the Act we find it unnecessary to discuss this matter further. We shall dismiss the complaint in so far as it alleges a violation of Section 8 (2). IV. THE EFFECT OF THE IJNFAIR LABOR PRACTICES UPON COMM ERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the business 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 between the States and foreign countries, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist from further en- gaging in such practices . Moreover, we shall order the respondent to take certain affirmative action which Ave deem necessary to effectuate the policies of the Act. We have found that the respondent on July 7, 1937 , discrimina- torily laid off Bernard Figlewski , Samuel Wolf, Steven Haban, Andrew Schmidt, John Krempa, Mary Stobka, and Joseph Dobisch. Since work was then available which these employees respectively could perform and would have performed but for the discrimina- tion, we cannot presume or find, if material,19 that had they or any of them not been laid off on July 7, nevertheless , they would have been laid off some time thereafter because of a recession in the respondent's business. In any event , if relevant,20 the duty 19 See National Tabor Relations Board V. William Randolph Hearst, Hearst Publications, Inc., a corporation, Hearst Consolidated Publications, Inc., a corporation, Hearst Corpora- tion, a corporation, American Newspapers, Inc., a corporation , and King Feature, Inc., a corporation, 102 F. (2d) 658 (C. C. A. 9th). 20 See footnote 19. E. HUBSC:FLIIAN & SONS, INCORPORATED 241 rested upon the respondent to ciiselitaligle 21 the consequences of its unfair labor practices and to demonstrate that at a later period these employees or any of them would not have had work. Accord- ingly, we shall order the respondent to offer each of these persons immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of pay they have suffered by reason of the respondent 's discriminatory action against them, as aforesaid , by payment to each of them of a sum of money equal to that which lie or she normally would have earned as wages from July 7, 1937, until the date of the offer of reinstatement, or if such person already has been fully reinstated then until the date of such reinstatement , less his or her net earnings 22 during said period. Upon the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW - 1. National Leather Workers' Association , Local No. 30, is a labor organization , within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to hire and tenure of employ- ment of Bernard Figlewski , Samuel Wolf, Steven Haban, Andrew Schmidt, John Krempa, Mary Stobka, and Joseph Dobisch, thereby discouraging membership in National Leather Workers' Association, Local No. 30, 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 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 labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. National Labor Relations Board v. Reiningion Rand , Inc.. 94 F . ( 2d) 862 , 872 cert, den, 304 U. S. 576 ; National Labor Relations Board v. Staofipolc Carbon Company, 105 F. (2d) 167 (C. C. A. 3rd) decided May 12, 1939 ; rehdariug denied June 30, 1939. --By "net earnings" is meant earnings less expenses, such as for transportation ,. room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his or her unlawful lay-off and the consequent necessity of his o r her seeking employment elsewhere. See Matter of Crosset Lumber Company and United Brotherhood of Carpenters and Joiners of America, etc.. 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. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By laying off Steven Huniak, Louis Morrow, and Joseph Wald- vogel, the respondent engaged in no unfair labor practices, within, the meaning 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 Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, E. Hubschman & Sons, Inc., and its officers, agents,, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in National Leather Workers' Asso- ciation, Local No. 30, or any other labor organization of its employees. by discriminating in regard to hire or tenure of employment or any term or condition 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 rep- resentatives of their own choosing, and to engage in concerted activi- ties, for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Bernard Figlewski, Samuel Wolf, Steven Haban, Andrew Schmidt, John Krempa, Mary Stobka, and Joseph Dobisch, and to each of them, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their sen- iority or other rights and privileges; and make them whole for any loss of pay they may have suffered by reason of respondent's discrimi- natory action against them by payment to each of them of a sum of money equal to that which he or she normally would have earned as wages from July 7, 1937, until the date of the offer of reinstatement, or if such person has already been fully reinstated then until the date of such reinstatement, less his or her net earnings 13 during said period, deducting, however, from the amount otherwise due each of the said employees, monies received by such employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and paying over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, munici- pal, or other government or governments which supplied the funds for said work-relief projects; "See footnote 22. E. HUESCHMAN & SONS, INCORPORATED 243 (b) Post immediately, and keep posted for a period of at least sixty ,(60) consecutive days from the date of posting , notices in conspicuous places throughout the plant stating that the respondent will cease and desist in the manner set forth in 1 (a ) and (b ), and that it will take the affirmative action set forth in 2 (a) of this Order; (c) Notify the Regional Director for the Fourth Region in writing within ten (10 ) days from the date of this Order what steps the Tespondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, -dismissed in so far as it alleges that the respondent discriminated in regard to the hire and tenure of employment . of Steven Huniak, Joseph Waldvogel, and Louis Morrow, and in .so far as it alleges that the respondent has engaged in, unfair labor practices within the meaning of Section 8 (2) of the Act. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.