Stover Bedding Co.

In the Matter of WALTER STOVER, DOING BUSINESS UNDER THE TRADE NAME AND :. STYLE OF STOVER BEDDING COMPANY and UPHOLSTERS ALLIED CRAFTS' LOCAL UNION •NO. 501 Case No. C-569.-Decided September 25, 1939 Upholstered Furniture, Mattress, and Bedding Manufacturing Industry- Interference, Restraint, and Coercion: organizational meeting, interference with, employer's open and deliberate attendance as constituting ; surveillance of union meeting ; making anti-union statements including threat to close plant if em- ployees joined union-Discrimination: allegations of, sustained as to three dis- charges, not sustained as to four dismissals-Reinstatement Ordered: of employees discriminatorily discharged-Back Pay: awarded employees dis- criminatorily discharged ; no deduction for payments received as and for State unemployment benefits because- not considered to be earnings. Mr. Newell N. Fowler, for the Board. Mr. Clarence Baird, of Salt Lake City, Utah, for the respondent. Mr. James A. Cobey, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon amended charges duly filed by Upholsters and Allied Crafts Local No. 501,1 herein called the Union, the National Labor Rela- tions Board, herein called the Board, by the Regional Director for the Twenty-second Region (Denver, Colorado), issued its' complaint dated March 23, 1938, against Walter Stover, an individual, doing business under the trade name and style of Stover Bedding Company, Salt Lake City, Utah, herein called the respondent,' alleging that the respondent had engaged in and was engaging in unfair labor. prac- tices affecting commerce, within the meaning of Section 8 (1) and,(3) and Section 2 (0) and . (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. 'A copy, of the complaint accom- 1 This is the correct designation of the Union. As used herein , "Union" also refers to the union as it has been otherwise designated in these proceedings , viz, "Upholsters Allied Crafts Local Union No. ,501," "Upholsters. & Allied Crafts Local No.' 501,", and "Upholster- ers Allied Crafts Local Union No. 501." 15 N. L. R. B., ' No: 66. 635' 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD panied by notice of hearing was duly served upon the respondent and upon the Union. In respect to the unfair labor practices the complaint alleged in substance that the respondent in November 1937 discharged nine of his employees, named in the complaint,2 -and thereafter- refused to reinstate them, because they, and each of them, joined arid- assisted the Union and engaged in concerted -activities with employees of the respondent for the purpose of collective bargaining and other mutual aid and protection, thereby discriminating in regard. to the hire and tenure of employment of these employees and discouraging member- ship in the Union; that prior to, during, and subsequent to November 1937 the respondent urged, persuaded, and warned his employees to refrain from participating by membership or otherwise in the activities of the Union, and threatened his employees with discharge and other reprisals if they became or remained members or partici- pated in the activities of the Union.; and that- by the'afore=meitioned and other acts the respondent interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. On April 4, 1938, the respondent filed his answer to the complaint denying generally the material allegations thereof, but admitting the fact of the alleged discharges, and averring, among other things, that the said discharges were occasioned solely by lack of business or by unsatisfactory service of the employees discharged. The answer also averred that two of said employees 4 were reinstated by the respondent subsequent to their discharge. Pursuant to notice a hearing, wa.s held on April 7 and 8, 1938, at Salt'Lake City, Utah, before Thomas S. Wilson, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the beginning of the hearing the respondent moved that the pro- ceedings be dismissed for failure of the complaint to state a proper charge and for want of jurisdiction over the subject matter. These motions were denied by the Trial Examiner. During the course of the hearing the respondent moved to dismiss for want of proof the allegations of the complaint with respect to two of the employees therein named.4 This motion was denied by the Trial Examiner 2 The names of these employees are as follows : Elmer Barlow, Ralph Barlow, Henry Clark, Steven Clements, Frank Colianna , Oris Gray , Bonnie Maxwell, Delbert Taufer, and Marvin Thomas. s The names of these employees are Henry Clark and Delbert Taufer. For the names of these employees , see footnote 3. WALTER STOVER 637 at the hearing, but was granted by him in the Intermediate Report, mentioned. below. At the close of the hearing the Board moved that the complaint and the charges be amended to conform to the proof, and the respondent moved that the answer be similarly amended. The Trial Examiner granted these motions. During the hearing the Trial Examiner made various rulings as to the admissi- bility of evidence. The Board has reviewed the above rulings of the Trial Examiner and finds that no prejudicial errors were committed. These rulings of the Trial Examiner are hereby affirmed. Thereafter, the Trial Examiner filed. with the Regional Director his Intermediate Report dated April 20, 1938, a copy of which was -duly served upon the respondent and upon the Union, finding 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, and recommending that :the-respondent^ce'ase',and desist from his unfair labor practices, that he reinstate with back pay seven of the nine employees named in the complaint; and that he take certain other action to remedy the situation brought about by the unfair labor practices found. He dismissed the allegations of the complaint, as above stated, with respect to the remaining two named employees.' On May 2, 1938, the respondent filed his Exceptions to the Intermediate Report together with a request for oral argument before the Board upon the Intermediate Report and the record. Pursuant to notice duly served upon the respondent and upon the Union, a hearing for the purpose of oral argument was held on February 16, 1939, before the Board in Washington, D. C. The re- spondent appeared, presented oral argument, and otherwise partici- pated in the hearing. The respondent submitted to the Board a brief : in support of his position. The Board has considered the Exceptions of the -respondent to the Intermediate Report, and in so far as they are inconsistent with the findings, conclusions, 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 L THE BUSINESS OF THE RESPONDENT The respondent is engaged in the manufacture, assembly, distri- bution, and sale of upholstered furniture, mattresses, bedding, and allied products. He owns and operates a manufacturing plant in 5 The names of these employees are : Elmer Barlow, Ralph Barlow, Steven Clements, Frank Colianna, Oils Gray, Bonnie Maxwell, and Marvin Thomas. For the names of these employees, see footnote 3. 638 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD Salt Lake City, Utah. This plant is one.of the largest of its kind in the- State of Utah and has an average monthly capacity of 125 "living room suites" and .900. mattresses. Approximately 50 per- sons are employed there. The plant is served directly by the fol- lowing railroads : The Denver and Rio Grande Western, the Union Pacific, the Western Pacific, and the Southern -Pacific. During the year 1937 the. plant used in the course of manufacture supplies and raw materials of an approximate cost of $240,000, over 99 per cent of which were shipped to it from points outside the State of Utah, including points in Mexico. During this same period the plant produced manufactured products having a total value of about $340,000, 15 per cent, or about $50,000, of which were shipped from the plant to points outside the State of Utah. II. THE,UNION . Upholsterers and Allied Crafts Local No. 501 is a labor organi- zation chartered by Upholsterers, Furniture, Carpet and Linoleum Layers' International Union of America, 'a national labor organ= ization affiliated with the American Federation of Labor. Upholster- ers and Allied Crafts Local No. 501- admits to membership produc- tioii;employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In the,early part of September 1937 the American Federation of Labor began organizational activities among employees of the re- spondent's' plant and of other similar plants located in Salt Lake City, Utah. Union organizers spoke with these employees about forming a labor organization, distributed union handbills to. them, and arranged for an initial organizational meeting to be held in the Labor Temple of that city. -The respondent soon learned of this movement and determined to .be present at the mentioned meeting: He testified that he so decided in order "to see what was going on there and if I can help them, and if they want to suggest anything." The meeting was held. - It was attended by employees from vari- ous bedding plants including seven of the respondent's employees. One Peterson, an organizer for the American Federation of Labor, and president of the Utah State Federation of Labor, presided. As the meeting began the respondent entered and his presence was ob- served. The chairman, Peterson, promptly requested the respondent to leave, pointing out the impropriety of an employer attending an organizational meeting in which his 'employees were participating. The respondent replied that he, himself, had been a member of a labor organization and that he favored the American Federation WALTER STOVER 639 of Labor. He "then proceeded to address himself to the subject of union organization of his employees especially of his so-called "low paid. help." 7 The respondent stated that his employees were free to' join a union but that "if his low paid help could not bring him a profit he would lay off every low paid man in his plant." At the hearing the respondent testified that his statement in 'this respect was that "the only thing I think unfair about a union is this, if a man cannot earn the amount what the union wage scale requires ... it Would not do a man much good." We are satisfied, and find, that the respondent., by his statement, in substance and in effect threatened his employees, particularly those receiving the lower wages, with the possibility that their employment would be imper- iled if they joined a union. We are not impressed with the respond- ent's apparent contention that his statement was a mere expression of, opinion as to likely consequences should the employees through union representation make an unreasonable demand for increased wages. There then existed no issue regarding a demand by any union for increased wages, let alone an unreasonable demand. The respondent's statement was designed to discourage' his lower-paid employees from forming and joining a union. Considered 'in the light of the respondent's superior' economic position, his threat of possible loss of employment in the event of unionization, made at the very time when his employees had- assembled with other em- ployees to form a union, showed unmistakable hostility to such self- organization. By expressing such hostility and threat, the respond- ent interfered with, restrained, and coerced his employees in the - exercise of, rights guaranteed' under the Act.8 We also, view as violative of the Act the uninvited attendance of the- respondent at the afore-mentioned organizational meeting which the respondent knew had as its purpose the formation of the Union and Would be participated in by his employees. We are not satisfied with the respondent's explanation that he went there out of curiosity and with a desire to "help" his employees and gather suggestions. ' The "low paid help" were workers compensated at lower rates than other employees because of their comparative inexperience. 8Matter of Knoxville Publishing Company and American Newspaper Guild, The Knox- ville Newspaper Guild, 12 N. L. R. B. 1209, 1212-17; Matter of Harry Schwartz Yarn Co., Inc. and Textile Workers Organizing Committee, 12 N. L. R. B. 1139, 1146-51; Matter of Nebel Knitting Company, Inc. and American Federation of Hosiery Workers, 6 N. L. R. B. 284, 286, 288-9, 293, order enforced National Labor Relations Board v. Nebel Knitting Company, Inc., 103 F. ( 2d) 594, 595 (C. C. A. 4th ) ; National Labor Relations Board v. American Manufacturing Company and Nu-Art Employees , Inc., 106 F. (2d) 61 (C. C. A. 2nd) ; National Labor Relations Board v. Arthur J. Colten and Abe J. Colman, Co-Partners doing business as Kiddie Kover Manufacturing Company, 105 F. (2d) 179, 181 (C. C. A. 6th) ; Virginia Ferry Corporation v. National Labor Relations Board, 101 F. (2d) 103, 104-6 (C. C. A. 4th ) ; National Labor Relations Board v. A. S. Abell Company, 97 F. (2d) 951, 955-6 (C. C. A . 4th) ; cf. Virginian Ry. Co. v. System Federation No. 40, etc., 84 F. (2d) 641 , 643-4 (C. C. A. 4th), 300 U. S. 515, 544. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . His very presence at such a meeting, necessarily would have the effect of interfering with, restraining,. and coercing his employees ii[the` enjoyment of their right of self-organization. • Moreover, independ- ent thereof; we are convinced, in view of the attitude which the respondent expressed toward the Union, and we find, that the re- spondent visited, the meeting deliberately to obtain information concerning the activity of the respondent's employees in connection with the formation of the Union. In this his action likewise con- travened the Act. That the respondent's action was open does not detract from its essential illegality." Following the'meeting the Union was organized and throughout September and October solicited members among employees of the respondent and of other local bedding manufacturers. The younger "low paid help" at the plant, particularly those in the upholstery department, joined the Union and became very active in the :cam-,, paign to organize their fellow workers. In these months many meetings of the Union, attended by employees of the respondent, were held. The record plainly shows that the respondent during this period not only was fully aware of the existence of the Union and its activity among his employees but took active steps to combat it. In October the respondent instructed one of the employees in the upholstery department to attend a union meeting in order to observe "what was going on and who was attending." We repeatedly have held this form of espionage to be violative of the Act 10 The respondent. made statements from time to time to various employees calculated to reveal his opposition and hostility to their joining the Union. He told them, among other things, that he did not think the Union should come in and tell him how to run his plant,11 that the employees were 0 Matter of Viking Pump Company and Lodge 1683, Amalgamated Association of Iron, Steel and Tin Workers of North America, through the Steel Workers Organizing Commit- tee affiliated aoith the Congress of Industrial Organizations (formerly Committee for Indus- trial Organization ), 13 N. L. R. B. 576; Matter of Washington, Virginia and Maryland. Coach Company, a. Corporation and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Local Division No. 10,9, et at., 1 N. L. R. B. 709- 773, 781; 301 U. S. 142 ; Matter of ' Brashear Freight Lines, Inc. and International Associ- ation of Machinists, District No. 9, affiliated with the American Federation of Labor, 13 N. L. It. B. 191. 10 Matter of Planters Manufacturing Company, Inc . and United Veneer Box and Barrel Workers Union, C. I. 0., 10 N. L. R. B. 735 , 746; order enforced Planters Manufacturing Compaviy, Inc. v. National Labor Relations Board, 105 F. (2d) 750 (C. C. A. 4th) ; Mattes of Millfay Manufacturing Company, Inc. and American Federation of Hosiery Workers, Branch 40, 2 N. L. It. B. 919, 921-922 , order enforced National Labor Relations Board v. Millfay Manufacturing Company, Inc., 97 F. (2d ) 1009 (C. C. A. 2nd). u Cf. Matter of The Stolle Corporation and Metal Polishers, Buffers. Platers and Help- ers International Union, 13 N. L. It. B. 370; Matter of The Weber Dental Manufacturing Company and The United Electrical and Radio workers of America, 10 N. L. It. B. 1439, 1443, 1444. WALTER STOVER 641 just wasting their money in paying dues to the Union,12 that if the employees in the upholstery department joined the Union that de- partment would be closed,'that those employees who joined the Union and obtained a. rise in wages would be required to increase proportionally their production, i. e., . would have to "make their wages back," 14 that if the employees joined the Union he'would be unable to pay union wages and the plant would shut down.'5 As stated above in connection with the statement made by the respondent at•the4initial organizational-meeting,..expressions by an employer of this character to employees, in view of the employers' economic posi- tion.. and power, are intimidatory and coercive. We have no doubt that these statements by the respondent were intended to and neces- sarily did intimidate the employees in their organizational activity. Although the respondent on occasion disclaimed any objection to union affiliation, such expressions did not avoid the clear intent and import of the statements made."' We find that the respondent by attending deliberately, as aforesaid, and without invitation the above-mentioned organizational meeting participated in by his employees, by-instructing an employee to attend and spy upon a union meeting of his employees, and by making anti- union statements and threats to employees, interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed by Section 7 of the Act. B. The discriminatory discharges of Ralph and Elnwr Barlow, and of Thomas, and the allegedly discriminatory dismissals of Clem- ents, Maxwell, Gray, and Colianna Despite the opposition of the respondent the Union by November 1937 succeeded in enrolling as members a substantial number of the plant employees. A union "negotiating committee" was set up to prepare a proposed collective contract covering wages and other working conditions of production workers employed in. bedding plants and factories located in Salt Lake City, and to negotiate the making of such a contract in behalf of the Union with the employers "Cf. Matter of Mexia Textile Mills and Textile Workers Organizing Committee, 11. N. L. R. B. 1167, 1170; Matter of Acme Air Appliance Company, Inc . and Local No. 122$ of the United Electrical Radio d Machine Workers of America, C. 1. 0., 10. N. L. R. B. 1385, 1390: Matter of Mock-Judson-Poehringer Company of North Carolina, Incorporated and Ameri- can Federation of hosiery Workers, North Carolina District, 8 N. L. R. B. 133, 139. ]A Cf. Matter of Jackson Daily 'News, Inc. and Jackson Printing Pressmen and Assistants Union, No. 2.15, 9 N. L. R. B. 120, 124, 125. To the younger inexperienced employees this was tantamount to a threat of discharge: is Cf. Ilamilton-Brown Shoe Company v. National Labor Relations Board, 104 F. (2d) 49. 53 (C. C. A. 8th) ; National Labor Relations Board v. Christian A. Land, et al., T03 F. (2d) 815, 818 (C. C. A. 8th) ;'National Labor Relations Board v. Nebel Knitting Com- pany, Inc., 103 F.: (2d) 594,' 595 (C.'"C. A. 4th). 11 See cases cited in footnote 8. (342 DECISIONS OF NATIONAL LABOR ,RELATIONS BOARD of these workers. 'Peterson, the union organizer, was authorized by the Union to submit the proposed contract to the respondent and to open. collective bargaining negotiations with him. In November 1937 the respondent terminated the employment of nine employees'17 all of whom were then members of the Union. The respondent : contends that certain of these employees is were dis- charged because their services were unsatisfactory, and that all were dismissed, i. e. either discharged or laid off, "primarily because of business conditions-"' The evidence shows that beginning in October 1937 and continuing throughout November sales of the respondent's finished products suffered a marked decline in volume. However, it does not necessarily follow that the afore-mentioned dismissals, or any of them, were occasioned thereby, "primarily" or otherwise.2O The question remains whether the termination of the employment of these persons was in whole or in part caused by their union affiliation and activity. Ralph. Barlow was discharged on November 3, 1937, the first of the employees to be dismissed by the respondent. At the time. of his discharge Barlow worked as a "clean-up man," sweeping and cleaning the premises in the upholstering department of 'the plant and, doing various odd jobs. He was an active member of the Union. He joined. in the beginning of October,. regularly attended union meetings, and was elected a member of the negotiating committee; We are satisfied, and find, that the respondent prior to November 3 learned of Barlow's union affiliation and activities. Among_ other things the foreman of the upholstering department and Barlow's immediate superior admitted at the hearing that' he knew of Bar- low's union membership and of his position on the negotiating com- mittee. It-is shown that" this foreman attended at least one of the union meetings held in October and there had observed Barlow. On November 2, the day preceding the discharge, the Union; acting through Peterson, submitted to the respondent as a basis for collective -bargaining the proposed collective contract which the negotiating committee had drafted. Also on' November 2, one of the respondent's customers while engaged in purchasing furniture in the upholstery department ban- 17 The names of these employees are set forth in footnote 2. is The names .of these employees are Ralph Barlow, Elmer Barlow, Frank Colianna, Oris Gray, and Bonnie Maxwell. 19 With respect to two of these employees , Henry Clark and Delbert Taufer , the allega- tions of the complaint regarding their discriminatory discharges were dismissed by the Trial Examiner, as above mentioned, on motion of the respondent, and this ruling we have affirmed. 20 See Matter of Servel, Inc. and United Electrical, Radio and Machine Workers of Amer. Ica, Local No.. 1002, 11 . N. L. R. B. 1295, 1319, at seq.; Matter of Commonwealth Telephone Cocnpany and Theodore R. Siplon, Walter F. Seidler and International Brotherhood of llectrical Workers, 13 N. L. R. B. 317. WALTER STOVER 643 tered the respondent about the Union and Barlow's position in it. The customer said to the respondent, "When you close down, I- guess I -will not be able to buy any furniture." This statement had refer- ence to a possible shut-down of the plant in the event of a strike by the Union. The customer adverted to Barlow, whom he named, saying that he had heard that Barlow was the "elected general man- ager" of the Union. The respondent replied -in effect that the Union would never organize. his plant. The customer also jested with Barlow, in the presence o£. several employees and the respondent, stating that he had read in the newspaper of Barlow's election as "general manager" of the Union. On the following day, a regular pay day at the plant, the respond- ent informed Barlow, upon giving him his earnings, that he was unable to pay Barlow an increased wage and, accordingly, that Barlow should spend the ensuing week in seeking other employment. About a week previously Barlow had asked and been promised a rise in his wages. The respondent said that if Barlow- failed to obtain work elsewhere, he, the respondent, would see what could be clone about it. Barlow was unsuccessful and within a few days asked the respondent to be reinstated. The respondent refused, stating that Barlow should try further to obtain other tmployment. On a succeeding Sunday 21 Barlow visited the respondent at his home, again to request reinstatement. The respondent refused and referred to the appearance of his name in a local newspaper in con- nection with the Union, saying, "My name is in the paper - every- where; they, -[the Union] have got ,my name in the paper and everything." Barlow replied that he did not know about the news- paper item. The respondent then said that he would lay off some of the other employees, including, •Barlow's brother, Elmer; that they "will find that it is hard to find a job also"; that the employees "had brought this on themselves." Either during this or the previous discussion above-mentioned, the respondent stated that he could not reemploy Barlow because he, the respondent, "had been losing money all summer." At the hearing .'Various alleged reasons . for the discharge were offered in 'support-of the respondent's position that the dismissal was not induced by discriminatory causes. It was contended that Barlow idled and read a newspaper at work and took his luncheon before, the proper time therefor. Further, the respondent claimed that he, Barlow, performed- his job unsatisfactorily , requested increases in his wages, spent too many hours at "overtime"; work, and that busi= 21 This appears to have been November 14, 1937:, 0 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ness conditions were poor. 2-2 We do not believe that these alleged reasons, or any of them, were operative factors in Barlow's dis- charge. Barlow's alleged idling and reading of the newspaper and his alleged eating of luncheons at an improper time impress us as mere makeweights in an argument and not as real explanations of the employee's loss of livelihood. • There is no showing that these asserted matters were called to Barlow's attention and that he failed or refused to make amends. He received no complaints from, his foreman nor, for that matter, did his foreman ever recommend his discharge. The only explanation for'the dismissal, 'apart from the reference to the Union given by the respondent to Barlow at the times Barlow sought reinstatement, was that his business had been unprofitable. It is true that performance of Barlow's work, judged by ordinary work standards, was not very efficient, that he requested increases in an admittedly low wage paid him, and that he worked an amount of overtime. The evidence shows that in January 1936, some 3 days after first beginning work at the plant, Barlow caught his hand in one of the machines and sustained a severe injury result- ing in a disability to the hand. In February 1937 the respondent reemployed him as a "clean-tip man" at a. wage of $10 a week. Be- cause of his handicap Barlow was slow and in certain respects inefficient in performing his duties. However, it is clear that the respondent was fully aware of this fact during the 8 months Barlow worked in this capacity, and had accepted it as an incident in the operation of his business. He told Barlow's brother,. that because Barlow became disabled in the course of the respondent's business Barlow would have a job as long as that business continued. He never asked Barlow to "work quicker or anything else, because I, felt like that it was bad, he could get no job somewhere else, and probably didn't hurt my pocketbook so much that I could [not]- afford him the $10." Likewise, he took into consideration Barlow's handicap in determining the amount of compensation paid:.him. -The respondent testified that he realized that "it is hard to get along on $10, but he certainly wasn't worth any more money." With respect to the requests made by Barlow for an increase in his wages, the respondent granted one increase about April 1937, as above mentioned, and promised another in the week preceding the discharge. While the respondent apparently felt- that he could not "afford" to increase Barlow's wages substantially, and in that connection once suggested 22 In respect to the relation of business conditions to the discharge, the respondent testi- fled, ". . . my business was so bad I couldn't employ him any more, because my records show I made last year not any profit whatsoever on the business except 5 per cent on my investment, and my salary." WALTER STOVER 645 to Barlow's brother that Barlow might be able to do better at other employment, there was no real conflict or dispute over the matter and certainly none as to have warranted the discharge. Nor do we deem Barlow's working overtime, for which he was given additional compensation, of any importance. The respondent testified "He [Barlow] worked • all the overtime what he possibly could put in just to make more money, for which I didn't object, because $10 isn't much money." Had he considered this objectionable, the re.- sp6hdeiit easily could have put an end to it. We are not persuaded that the decline which occurred in the respondent's business in November explains the termination of Bar- low's employment. The work which Barlow performed did not cease with the slowing down of production. At the time of the hearing it was being done by an employee, one Fiel, hired after November 3. As set forth above the respondent, because of the circumstances under which Barlow's disability occurred, previously expressed an intent to make available to Barlow continuous and per- manent employment so long as he needed it. We are satisfied, and we find, that the respondent discharged Bar- low' because of his union leadership and activity. Any resolution which the respondent entertained to continue Barlow in his em ployment was destroyed upon Barlow's becoming prominently iden- tified with the Union. On the day preceding the discharge the Union submitted to the respondent its proposed collective contract and ;thereby.. confronted the respondent with the necessity of deciding whether he would continue to oppose the Union as he had in' the past, or would accept and deal with it. We are satisfied that the respondent determined to pursue further his course of opposition, and, accordingly, proceeded at once to carry out the threat, both implicit and express, in his many anti-union statements, above found. The incident concerning the bantering- and jesting by the respond- ent's customer on November 2 is of importance not merely because- it occasioned at that time a definite expression of hostility to the: Union by the respondent, but because it explains the selection of Ralph Barlow as the first union member to be discriminatorily dip-. missed.. The customer's comments marked Barlow as an important union member. We find that the respondent discharged Ralph Barlow on Novem her ^3, 1937, because lie joined and assisted the Union and engaged in concerted activities with' other employees of the. respondent for- the purpose of collective bargaining and other mutual aid and pro- tection, thereby discriminating in regard to the hire and tenure of employment of said employee and discouraging membership in a- labor organization; that by such act the respondent has interfered: 199549-39-vol. 15-42 '646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with, restrained, and coerced his employees in the exercise of:r-ights guaranteed by Section 7 of the Act. At the time of the discharge Barlow earned on an average $65 a month. This consisted of his weekly salary of $10.50 and additional compensation for overtime work., Since his discharge he has earned $5 at other employment. He also has received certain sums of money as unemployment insurance benefits paid him by the Industrial Commission of the State of Utah. Elmer Barlow 23 was discharged by the respondent on November 17, 1937. He worked in the upholstery department of the plant per- forming such tasks as bringing tow and felt to the upholsterers, attaching legs to furniture, and delivering furniture by truck to customers. He joined the Union in the middle of October and attended union meetings. On November 15 the respondent informed Barlow during the course of work that he proposed to lay off a few employees the -fol- lowing pay day, November 17. Later in the day Barlow inquired of the respondent whether the lay-off would affect him. Upon' being told that he would be among those dismissed, Barlow asked the reason therefor. The respondent gave no direct response, saying merely, "It is not because you belong to the union because I don't know whether you. do or not . . . I have no kick about your work. You are one of the best workers I have." Barlow then protested that "there must be a reason." The respondent answered, "Well, I think it is better this way" and walked away. On November 17, as Barlow was given his pay, the respondent stated to him that in the" event he was unsuccessful in securing employment elsewhere the respondent probably could give him work 1 day a week cleaning up the plant. At the hearing the respondent denied having knowledge prior to November 17 of Elmer Barlow's union affiliation. The evidence amply shows that the general plant foreman, George Stover, who recommended to the respondent the termination of Barlow's employ- ment, was aware of Barlow's membership in the Union. His testi- mony indicates that he was informed of the activities of the Union. He stated at the hearing that he had "always figured Elmer [Barlow] was more" a leader of the Union than his brother, Ralph. We have no doubt that this information and appraisal of Barlow's union activity was communicated by George Stover to the respondent before November 17. George Stover was the respondent's brother, his right-hand man at the plant, and his confidant. Of course, if George Stover in recommending Elmer Barlow's dismissal, did so because of anti-union reasons, and the respondent acted thereon, such Elmer Barlow is a brother of Ralph Barlow, whose case is discussed above. WALTER STOVER 647 dismissal would be in violation of the Act since Stover was in a supervisory position. George Stover was interrogated directly concerning the reason for Elmer Barlow's discharge, as follows 'Q. Do you know why Elmer Barlow was discharged in November 1937? , A. Elmer Barlow, I think was one of the first men there that was' dissatisfied.- -He had a family. He wanted to do better, to improve himself and do his work, but he didn't know enough to do that. And he started agitating. And before we knew it they had union advertisements [handbills]. Q. Tell us about Elmer Barlow. Anything more?' A. Elmer Barlow, he started working in there in the uphol- stery department, and it was them kids that went up there and joined the Union and made the trouble. We entertain no doubt, in view of the foregoing and the entire record, that the respondent terminated the employment of Elmer Barlow because of his union membership and activity. The dismissal was part of the respondent's campaign to defeat unionization of his plant through the device of getting rid of the more important union, adherents. We do not believe that the various reasons here urged as causes of the dismissal are the actual explanation of the termina- tion of Barlow's employment. It is noteworthy that at the time Barlow asked the respondent for an explanation, as above, mentioned, none of these reasons was forthcoming. In fact, the respondent then insisted that some of them were not the reason. We are satisfied that Barlow was a competent worker, as the respondent then de- clared, and was not indifferent toward his work or otherwise unsatis- factory in his services, as the respondent now urges. His fellow employees and foreman testified that Barlow performed his work efficiently. He received two increases in his wages, the second about 3 weeks before his - dismissal. At - that time the respondent told him, "I wish I could give you twice that much, because you are well worth it to me, but at this time I could not give you any more than that. _ The other boys might hear of it. But I will give you another good raise before Christmas." Nor do we consider the decline in the respondent's business as of relevance in the case of Elmer Barlow's dismissal. Three employees in the upholstery department junior to Barlow in point of service were retained at the time he was dismissed. While the respondent- does, not claim that seniority was observed in terminating Barlow's employment, the failure to follow such a practice is an important circumstance. This is especially true where, as here, it is contended in connection with other allegedly discriminatory dismissals that 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such dismissals were attributable solely to unavailable work and were- governed by seniority principles. Moreover, the record does not ex- plain why at the time of the hearing, when the respondent's business. was in a much poorer state than it had been on November 17, 1937,. the respondent still employed the same number of persons in the upholstery department as he did prior to that date. While some reference is made in the record to Elmer Barlow's- dismissal as a "lay off," we believe that Barlow in "fact was dis- charged.24 We find that the respondent discharged Elmer Barlow on November 17, 1937, because he joined and assisted the Union and engaged in concerted activities with other employees of the respondent for the purpose of collective bargaining and other mutual aid and protection, thereby discriminating in regard to the hire and tenure, of employment of said employee and discouraging membership in a labor organization; that by such act the respondent interfered with, restrained, and coerced his employees in the exercise of rights guaranteed by Section 7 of the Act. At the time of his discharge Elmer Barlow was earning $90 on: an average each month as .wages 25 and for overtime work. He has earned since his discharge between $75 and $100 working as a sales- man on a commission basis, and has received additional sums of money by way of unemployment benefits from the Industrial Com- mission of the State of Utah. He desires to be reinstated. Marvin Thomas was discharged by the respondent .likewise on November 17, 1937. He had been employed as a night watchman and had done some work cleaning, and. sweeping.. the. plant and cutting up old mattresses. Thomas joined the Union in late Septem- ber or the early part of October. We are satisfied that the respondent was aware of Thomas' membership and activity in the Union. Among other things, Thomas had attended the afore- mentioned or- ganizational meeting, where he was observed by the respondent. The respondent testified that on various occasions the employees would have "secret" discussions at the plant which they would stop when the respondent appeared, that Thomas participated in some of these discussions, and that the respondent "had a good guess what was going on." It is clear that the respondent considered these discussions as involving union problems and organization. On the morning of November 17, as he completed his work, Thomas was told by the respondent that he would not be needed any longer.. 24 The issue whether Barlow was laid off or discharged is immaterial since in either event the termination of his employment on November 17, 1937, constituted a discrimina- tion as to hire and tenure of employment, within the meaning of the Act. Matter of Commonwealth Telephone Company and Theodore R. Siplon, Walter F. Seidler and Inter- national Brotherhood of Electrical Workers, 13 N. L. R. B. 317. 25 His wages were $18 per week. WALTER STOVER 649 Later in the day Thomas asked the respondent why he had been .discha;rged, and'stated that he thought his work. had been satisfactory. 'The respondent replied that Thomas' work had been satisfactory and then remarked that "some people seemed to think they could run [the respondent's] business, . . . [that the respondent] had enough money so lie could quit business and live like he wanted to the rest of his life." The respondent stated that business conditions were poor and that if Thomas found himself unable to find work the re- :spondent would reemploy him. Thomas ,requested and was given a letter of recommendation. Thereafter, Thomas sought through his landlord to be reinstated, but the respondent denied his application. The respondent contends that Thomas' discharge was occasioned by poor business conditions. It is asserted that lack of work made it necessary for the respondent to demote to the position of night watchman an employee who formerly held that position, one Dixon, and to dismiss Thomas. The record does not support this contention. Thomas worked from 10 p. in. to 8 a. in. While it is true that follow- ing Thomas' discharge the task of cleaning the plant which Thomas had performed was done by Dixon and Fiel, Dixon did not perform Thomas' duties as night watchman. For this work the respondent, within a week after Thomas' dismissal, employed one Nielsen, a former employee, to keep watch over the plant through the night. Dixon completed his cleaning at 10 p. m. It is not shown whether Dixon did any work besides this. We have no doubt that Thomas' discharge, like that of Ralph and Elmer Barlow, was motivated by the union affiliation and activity of the employee. The respondent was not concerned with removing Thomas simply to make work available to another employee having greater seniority. The employment of. Nielsen as night watchman and the division,-of-the':cle ining4work between. Dixoli and Fiel 16.. show-that... . the respondent's prime interest was to get rid of Thomas, and that the filling of the vacancy thereby created was a matter of incidental adjustment. The respondent knew from the outset of Thomas' inter- est in the Union. He noted Thomas' participation in the "secret" discussions. His remark to Thomas at the time of the discharge that. "some people seemed to think they could run his business" had refer- ence, we are satisfied, to the organization of the plant by the Union and to the desire of the Union for a collective contract with the respondent. The respondent's statement, above quoted, to Thomas on November 17 shows clearly the anti-union character of the dismissal. His promise to reemploy Thomas if Thomas could not obtain other work, like the promise made to Ralph Barlow, was not in good faith. " F1el also : was a new employee: , 650 DECISIONS OF NATIONAL LABOR "RELATIONS BOARD We find that the respondent discharged Marvin Thomas on No- vember 17, 1937, because he joined and assisted the Union and engaged in concerted activities with other employees of the respondent for the purpose of collective bargaining and other mutual aid and pro- tection, thereby discriminating in regard to hire and tenure of employment of said employee and discouraging membership in the Union; that by said act the respondent interfered with, restrained-, and coerced his 'employees in the exercise of the rights guaranteed by Section 7 of the Act. Thomas was earning $17 a week at the time of his discharge. Since that date he has received $150 from the United States Works Progress Administration for services performed upon work-relief projects. Bonnie Maxwell, Steven Clements, One Gray, and Frank Colianna, were discharged or laid off by the respondent, Maxwell on November 15, and the other three on November 17, 1937. While the circum- stance that these employees were all union members and that their discharges occurred in the same period when other employees of the respondent were discriminatorily dismissed arouses a suspicion that the termination of their employment likewise was attributable to anti-union causes, we do not conclude on the evidence presented that such was the case. We heretofore have adverted to the decline in the respondent's business which occurred in November. It is shown that Clements, Gray, and Colianna, because of their low seniority were logical persons to be laid off in such an eventuality. Maxwell's increasing physical incapacity to do her work is a reasonable•explana- tion of her discharge. We find that the respondent engaged in no unfair labor practices with respect to said persons, as alleged in the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the re= spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead the labor disputes burdening and obstructing commerce and the free flow of commerce.27 V. THE REMEDY It is essential to an effectuation of the purposes and policies of the Act that the respondent be ordered to cease and desist from certain unfair labor practices in which we have found him to have engaged, m See National Labor Relations Board V. Fainblatt et al., 59 S. Ct. 669 , and cases there cited. WALTER STOVER 651 and, -in aid of such order and as a means of removing and avoiding. the consequences of such practices, that the respondent be ordered to, take certain action more particularly described below. We have found that the respondent interfered with, restrained,. and- coerced- his employees in the exercise of the. rights secured them by the Act. We also have found that the respondent discrimina- torily terminated the employment of Ralph Barlow, Elmer Barlow,, and Marvin Thomas. Accordingly, we shall order the respondent to cease and desist from such practices. Moreover, to effectuate the purposes and policy of the Act, we shall require the respondent to, offer said employees immediate and full reinstatement to their former- or substantially equivalent positions with the -respondent, without prejudice to their seniority and other rights and privileges and to make them whole for any loss of pay they have suffered by reason of' the respondent's discriminatory termination of their employment as aforesaid, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date- of the illegal termination of his employment to the date of. the offer- of reinstatement, less his net earnings 25 during such period. In computing the amount of back pay owing to Ralph Barlow and Elmer Barlow, respectively, under the Order below, there shall be. included in such amount the equivalent of What such employee would have earned on, an average for "overtime work" had he not been unlawfully discharged. Upon the basis of the foregoing findings of fact and upon the- entire record in the case, the Board makes the following : CONCLusIONs OF LAW 1. Upholsterers and Allied Crafts Local No. 501 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 Ralph Barlow, Elmer Barlow, and Marvin Thomas, thereby discouraging membership in Upholsterers and Allied Crafts Local 21 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 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 Amer- ica, Lumber and Sawmill Workers, Local No . 2590, 8 N. L. R . B. 440, 49-7-8 . Payments received by the employee as and for unemployment benefits from the Industrial Commis-- sion of the State of Utah are not to be considered as earnings and hence are not deducti- ble. Cf.- Matter of Oil Well Manufacturing Corporation and Employees Mutual Beneflt` Association, 14 N. L. R. B. 1114, footnote 9. Monies received for work performed upon, Federal, State, county, municipal, or other work-relief projects are not considered as earn- ings, but, as provided below in the Order, shall be deducted from the sum due the em- ployee, 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. 652 DEO[SIONS Or, NATIONAL LABOR RELATIONS BOARD No...501, 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 his employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1)' of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. By dismissing Steven Clements, Frank Coliaiina, Oris Gray, and Bonnie Maxwell, the respondent has not engaged in any unfair labor practices, as alleged in the complaint. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Walter Stover, doing business under the trade name and style of Stover Bedding Company, Salt Lake City, Utah, and his agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Upholsterers and Allied Crafts Local No. 501, or any other labor organization of his 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 his employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities, 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 Ralph Barlow, Elmer Barlow, and Marvin Thomas, and each of them, immediate and full reinstatement to their former or to substantially equivalent positions, without prejudice to their seniority and other rights and privileges; and make them whole for any loss of pay they have suffered by reason of their respective dis- charges by payment to each of them of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge, viz, Ralph Barlow on November 3, 1937, and Elmer Barlow and Marvin Thomas on November 17, 1937, to the date of the offer of reinstatement, less his net earnings 29 during that period, 29 See footnote 28 as to the meaning of "net earnings." WALTER STOVER 653 deducting, however, from the amount otherwise due to each of said employees, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work- relief..projects, and. pay over the amounts so deducted to the appro- priate.fiscal agency of the Federal, State, county, municipal, or, other government or governments which supplied the. funds for said work- relief projects; (b) Post immediately in conspicuous places throughout his plant and keep posted for a period of at least sixty (60) consecutive days from the date of posting, notices stating that the respondent will cease and desist in the manner set forth in 1 (a) and (b") and that he will take the affirmative action set forth in 2 (a) of this Order; (c) Notify the Regional Director for the Twenty-second Region in writing within ten (10) days from the date of this Order what steps he has taken to comply herewith. AND IT IS FURTHER ORDERED -that`the complaint, in so far as it alleges that the respondent engaged in unfair labor practices with respect to Steven Clements, Frank Colianna, Oris Gray, and Bonnie Maxwell, be, and the same hereby is, dismissed. Mn. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.