S. Blechman & Sons, Inc.

In the Matter of S. BLECHMAN & SONS, INO. and UNITED WHOLESALE EMPLOYEES OF NEW YORK , LOCAL No. 65, U. R. E. A.-C. I. O. Case No. C-1081.Decided February 16, 1940 Dry Goods and General Merchandise Jobbing Industry-Interference, Re- straint, and Coercion: anti-union statement by supervisory employee; threat to discharge union leader-Discrimination: discharge of employees because of union membership and activities and opposition to administration of "inside" organization-Reinstatement Ordered: of discharged employees-Back Pay: awarded-Procedure: charge filed by union found guilty of violating injunction against picketing respondent's place of business : no defense. Mr. Mark Lauter, for the Board. Mr. David Mickelsokni, of New York City, for the respondent. Mr. Harry Sacker, of New York City, for the Union. Mr. George Turi.tz, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Whole- sale Employees of New York, Local 65, United Retail Employees of America, herein called the Union,' the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City) issued its complaint dated March .19, 1938, against S. Blechman & Sons, Inc., herein called the respond- ent, alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices the complaint, so far as is here material, alleged, in substance: (1) that on or about Au- gust 5, 1937, the respondent, in violation of Section 8 (3) of the 1 After the issuance of the complaint but prior to the hearing the name of the Union was changed to United Wholesale and Warehouse Employees ' Union , Local 65 , United Retail Employees of America. 20 N. L. R. B., No. 52. 495 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, discharged Sidney Rosenthal, and on or about August 6, 1937, discharged Tobias Gartner and Sol Yoffie, all three employees of the respondent, because they joined and assisted the Union and engaged in other concerted activities for the purposes of collective bargaining and. other mutual aid or protection, and that the respond- ent refused and continued to refuse to reinstate them, thereby dis- criminating in regard to their hire and tenure of employment; (2) that from on or about July 26, 1937, to the issuance. of the complaint the respondent urged, persuaded, and warned its employees to refrain from becoming and remaining members of the Union and threatened its employees with discharge and other reprisals if they became or remained members thereof; and (3) that by the aforesaid acts and by other acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Copies of the complaint, accompanied by notice of hearing thereon and copies of the amended charge, were duly served upon the re- spondent and the Union. On or about March 24, 1938, the respondent filed its answer, in which it denied all the material allegations of the complaint with respect to the unfair labor practices, admitting, however, that it dis- charged from its employ the three employees named in the complaint. The answer affirmatively alleged that the Union had forfeited all right to obtain relief in this proceeding, having been found guilty of contempt of court because of misconduct toward the respondent. Pursuant to notice a hearing was held at New York City on Sep- tember 19, 20, and 21, 1938, before William Seagle, the Trial Ex- aminer duly designated by the Board. The Board, the respondent, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence on the issues was afforded the Board and the respondent. On objection by counsel for the Board the Trial Examiner rejected an offer by the respondent to prove that the Union, because of misconduct, had been enjoined from picketing the respondent's place of business, that it had violated such injunction on and after April 14, 1937, that it had been found guilty of such viola- tion and fined therefor, and that the fine had been paid. The Trial Examiner's ruling is hereby affirmed.2 During the course of the hear- ing the Trial Examiner made a number of rulings on motions, including various motions by the respondent to dismiss the complaint, 7 See National Labor Relations Board v. Remington Rand, Inc., 94 F. (2d) 862 (C. C. A. 2), cert. denied. 304 U. S. 576, enf'g Matter of Remington Rand, Inc. and Reming- ton Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N. L. R. B. 626 , where the court rejected a eimiiar defense in a case involving a violation of Section 8 (5) of the Act. S. BLECHMAN- & SONS, INC. 497 and on other objections to the admission of evidence. At the close of the Board's case the Trial Examiner, on motion by the respondent to dismiss the complaint with respect to Sol Yoffie and with the con- sent of counsel for the Board, ordered the name of said Yoffie stricken from the complaint, no evidence having been presented with respect to him. The Trial Examiner at the close of the hearing also granted a motion by counsel for the Board to conform the complaint to the proof with respect to variances in dates, names, and places. The Board has reviewed all these rulings- of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. After the close of the hearing, the respondent submitted a brief to the Trial Examiner. On or about December 5, 1938, the Trial Examiner filed his Inter- Inediat.e Report, copies of which were duly served upon the respond- ent and the Union, in which he denied the respondent's motions to dismiss the complaint, rulings on which had been reserved at the hearing, and found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Net. He recommended that the respondent cease and desist from such practices;- that it reinstate Gartner and Rosenthal to their former positions with back pay, and that it take certain other affirm- ative action to remedy the situation brought about by the unfair labor practices found. On December 7, 1938, the respondent filed exceptions to the Inter- mediate Report, and requested an opportunity for oral argument be- fore the Board. The respondent also filed a brief and a supplemental memorandum with the Board. On September 28, 1939, pursuant to notice, a hearing was held before the Board at Washington, D. C., for the purposes of oral argument. The respondent and the Union ap- peared by counsel and participated in the argument. At the oral argument counsel for the respondent requested leave to file copies of a certain statement appearing in the "Blechman Beacon," allegedly a publication of the Union. This request was denied. The Board has considered the respoident's exceptions to the Intermediate Report and the arguments in support thereof, and, except in so far as they are consistent with the findings, conclusions, and order below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: Fl-, DI NOS OF FACT 1. THE BUSINESS OF THE RESPONDENT S. Blecluinan & Sons; Inc., is a Nev Yoi•k'corporation having its place of business in New York City. It is a jobber engaged in the 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purchase and sale of dry goods and general merchandise, including household merchandise, underwear, knitted wear, notions, hosiery, and gloves, selling to retail stores. In 1937 the respondent's sales amounted to approximately $5,500,000, of which approximately 55 per cent represented products shipped by the respondent to customers outside of New York State. Its purchases in 1937 were approximately 12 or 13 per cent less than its sales, and approximately 70 per cent thereof represented products shipped to the respondent's place of business from points outside of New York State.3 It has approxi- mately 228 employees, and is perhaps the largest concern in the in- dustry in this country. The respondent stipulated that it is engaged extensively in interstate commerce. IT. THE ORGANIZATIONS INVOLVED United Wholesale Employees of New York, Local 65, United Retail Employees of America ,4 is a labor organization affiliated through its parent.body, United Retail Employees of America, with the Committee for Industrial Organization 5 and admitting employees of the respond- ent to membership. Prior to July 1937 it was affiliated with the American Federation of Labor under the name Wholesale Drygoods Employees Union, Local No. 19932, American Federation of Labor.(; III. THE UNFAIR LABOR PRACTICES A. The background The present proceeding is not the first one to be brought by the Board against the respondent. In a prior proceeding" under Section 10 (c) of the Act, the Board found that the respondent had dominated, interfered with, and contributed to the support of, Employees' Asso- ciation of S. Blechman & Sons, Inc., herein called the Association, that it had intimidated its employees to prevent their joining the Union, 3 The stipulation on which the above finding is based , set forth In the transcript of the hearing , states that the respondent 's "purchases for the . . . period amounted to approxi- mately seventy per cent of the total amount of its purchases ." It is apparent from the entire stipulation, however, that the purchases which were the subject of this statement were purchases made by the respondent outside of the State of New York, and that the omission from the stipulation of specific language to that effect was owing to a typo- graphical error. In an earlier case involving this respondent , entitled Matter of S. Blech- man & Sons, Inc . and United Wholesale Employees of New York, Local 65, Textile Workers. Organizing Committee- Committee for Industrial Organization , 4 N. L. R. B. 15, the respondent stipulated that it received approximately 70 per cent of its purchases from points outside of the State of New York. 4 See footnote 1 above. 5 Now the Congress of Industrial Organizations. 6 The respondent contends that the Union is not the same organization as the organization which was affiliated with the American Federation of Labor , but we do not agree with this contention . In any event , the determination of this question does not materially affect any of the issues of this proceeding. 7 4 N. L. R. B. 15. S. BLECHMAN & SONS5 INC. 499 and that it had discharged Sam Keenholtz, an employee of the re- spondent, because of his union membership and activity. It dismissed charges that the respondent had discriminatorily demoted Louis Gordon and Tobias Gartner.8 Gartner was the same employee who is named in the complaint in the present proceeding.9 The testimony in the present proceeding contains further indica- tions of the respondent's domination, interference with, and support of the Association, and of further acts of interference, restraint, and coercion with respect to the rights of the employees. Marx D. Slonim, who was the respondent's treasurer and had general super- visory authority, admitted at the hearing that permission was still accorded to the Association to collect dues on company time and prop- erty, and that employees who were members of the Association were allowed to hold meetings on company time to discuss grievances with each other, no representative of the respondent being present. The testimony also shows that other activities of the Association were carried on openly at the respondent's place of business during working hours, without objection by the respondent. Other acts of inter- ference by the respondent with the employees' self-organization will be pointed out below. B. The disch un',.^aator2^ discharges; interference, restraint, and coercion Tobias Gartwer. Tobias Gartner, known at his place of employment, and referred to at times in the record as "Teddy" Gartner, was hired by the respondent as a salesman on April 24, 1933. He was discharged on August 6, 1937, having been in the respondent's employ contin- uously for over 4 years. He was a capable and efficient employee and, except in respect to the last few months of his employment, the respondent makes no contention to the contrary. His work was often praised by officials of the respondent and he was placed in the "first group," that is, the group of salesmen whose earnings were highest. When Gartner started to work for the respondent his salary was only $20.00 a week. At the time of his discharge he was receiving $29.00 a week plus commissions which brought his average earnings to ap- proximately $32.00 a week. Before his employment with the respond- ent he had had 7 years' experience as a salesman for another firm and for a. time had conducted a business of his own. Referred to in the former proceeding as Theodore Gartner . Allegations of discrimina- tory demotion with respect to Sol Yoffie , another employee , referred to in the prior pro- ceeding as Sol Joffe , were stricken from the complaint on motion of counsel for the Board. 9A petition for enforcement of the Board 's Order was filed with the Circuit Court of Appeals for the Second Circuit but later was withdrawn , upon consent of the parties, without prejudice to the Board 's right to file another petition for enforcement of the Order. Soo DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gartner joined the Union in about August 1936, when it was known as Wholesale Drygoods Employees' Union, Local No. 19932, American Federation of Labor, and he was outstanding among the employees in activity on its behalf. It was he, indeed, who was responsible for bringing the organization into the respondent's place of business. He was instrumental in signing up about 40 employees of the respondent its members of the Union, and about 6 months before his discharge was elected shop chairman. At the same time lie maintained his ment- bership in the Association, which he joined at about the time he was first. employed by the respondent. He was active in the Association,, and was elected to the grievance board in 1935 and, in spite of his well-known activities on behalf of the Union, in 1937. He appears, however, to have been a source of annoyance to the officials of the Association because of his opposition to their policies, and in about July 1937 Hochberg,'° the president of the Association, attempted to induce the grievance board to expel Gartner from the board. Hoch- berg called the grievance board together in a special meeting which was held in the respondent's plant during working hours and pro- posed Gartner's expulsion, suggesting an open ballot. Gartner de- feated this move by demanding and obtaining a secret ballot, which resulted in a vote against his expulsion. In the latter part of July, shortly before his discharge, Gartner initiated a petition for a special meeting of the Association for the impeachment of Hochberg for failure to carry out his duties, a move which aroused great interest among the employees. On August 2, 1937, only 4 days before his discharge, Gartner testified on behalf of the Board in the earlier proceeding against the respondent.. The respondent knew of Gartner's various activities on behalf of the Union and in the Association and several officials attempted to dis- courage them. In about June .1937 Simon Blechman, the president and chief stockholder of the respondent, warned Gartner to have noth- ing to do with the Union," at the same time promising him an increase in pay. In July 1937 Gartner was again advised to have nothing to do with the Union, this time by Simon Blechman and Lesser Segerman,' the respondent's vice president. They asked him what the Union,, could do for the employees, pointing out that the Association was trying its best for them. In June or July 1937 Hochberg, who was the respondent's office manager and assistant credit manager, as' well as president of the Association, tried during working hours to persuade Gartner to cooperate with him in ridding the respondent of the Uliion.- The respondent denied that Hochberg had authority to hire or dis- 10 Hochberg was the respondent's --office manager and, assistant . credit manager. His authority as a representative of`the'respondent is discussed' below. 11 Blechman used the term "outside element ," but it is clear he was referring to the Union. S. BLECHMAN &' SONS, -INC. 501 charge employees. It is clear, however, that he made recommendations as to the office employees in this respect and that they worked under his supervision. In June or July Hochberg and Slonim, the respond- ent's treasurer, reproached Gartner for meeting "with the outside union every lunch hour." When Gartner denied that he did so, Slonim said he did not believe Gartner, but added, "I hope it's not so," and shook hands with him, saying, "Hope everything will be all right." The foregoing facts concerning the respondent's attempts to discourage Gartner's activities are not contradicted in the record. On about June 1, 1937, the respondent began to assign Gartner its cheaper trade, although previously, being in the "first group," he had always been assigned the better class of trade. He was also subjected to various indignities, such as being placed in the errand boys' box, and being sent to work in the shipping department. Gartner com- plained to Segerman, the respondent's vice president, and for a while this course of conduct stopped, but it began again after Gartner testi- fied on August 2, .1937, in the earlier proceeding instituted by the Board against the respondent. During the last few days of his employ- ment it became obvious to Gartner that something was going to happen to him with respect to his job. He saw his time card repeatedly taken from the time-card rack into the office and then put back. On August 4, one Abe Reznick 12 said to Gartner in the presence of Hochberg : "Hair will grow on this palm here before a union will get in here, and you'll be out first." Reznick was the respondent's "general superin- tendent," in the sense that he was in charge of maintenance, and had been in the respondent's employ for 20 years. Reznick denied that he had any supervisory authority. However, although he spent a great deal of his time repairing the numerous hand truck's used in the respondent's business and making minor repairs to its building, it seems clear that Reznick was recognized by the employees as an indi- vidual of authority. Gartner and Rosenthal testified that Reznick had considerable supervisory authority and he himself admitted that he corrected employees' work. He was not required to punch the time clock, as the other employees were. Asher, the head of the respond- We find that Reznick was supervisory emli`loyee and that his remark testified as to Reznick : "Well, -he's not exactly above me ... when we're short of help, he helps me out and sometimes when he's in the depart- ment, I help him out." It is clear, however, that Asher recognized Reznick's authority. His first reply when asked if Reznick was above him was an unqualified "yes," and it was only on second thought that he gave the answer quoted above. Furthermore, when he was re- 'ferrecl to Reznick in connection with the problem, considered below of 12 Also referred to in the record as Rasnick: 283031-41-vol. 20-33 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rosenthal's request for a leave of absence, he went to Reznick and said : "Mr. Reznick, will you come downstairs with me because one of the boys don't want to come tomorrow, and see what we can do about it." We find that Reznick was a supervisory employee and that his remark to Gartner above referred to was attributable to the respondent.18 On August 5, the day before Gartner's discharge, Slonim called Gartner into his office and accused him of telephoning to a customer to whom he had sold some goods that day and telling the customer that unless he refused to receive the goods when they were delivered, a picket line would appear in front of his store. Gartner denied Slonim's accusation at the time and we find that it was untrue. Never- theless, as punishment, Slonim made him sit near the telephone oper- ators for several hours, and when he finally let Gartner go back to the salesmen's station, he ordered him not to talk to the other sales- men. Ordinarily the salesmen were permitted to converse freely while awaiting customers. Finally, on August 6, 1937, Slonim called Gartner into the office and discharged him. Gartner testified that Slonim told him : ".. . the things that I. have carried on in the ... few months . . . didn't do any benefit to the firm and we have to leave you go." He further testified that he then stated to Slonim : "In other words, you fire me for union activities," and that Slonim replied, "Let's not go into it." Slonim testified as to his statement to Gartner as follows: I stated to Mr. Gartner that on several occasions we have in- formed him that his duties during working hours are for the benefit of the company only and not other activities and that we have found that . . . although promised, he has not kept up his promise and that he was assigned to a customer and in- stead of attending to the customer he left the customer and went into the departments and went around disturbing other em- ployees with different activities other than for the benefit of the firm. That same day the respondent sent a registered letter to the Regional Director stating that Gartner had. been discharged because he was inattentive to his duties and disturbed other employees in their work, in spite_ of prior warnings not to do so. The letter went on to invite the Regional Director to visit the respondent and investigate the matter. 13 Matter of American Manufacturing Company, et al. and Textile Workers Organizing Committee, C. I. 0., 5 N. L. R. B. 443, 447, enf'd, N. L. R. B. v. American Manufacturing Co., et al., 106 F. (2d) 61 (C. C. A. 2) ; Matter of The Herrick Corp. and Internatiotiai Union, United Automobile Workers of America, Local No. 459, 8 N. L. R. B. 621; :enf'd, International Association of Machinists, Tool and;.Die:' Makers Lodge No. 35, affiliated with the International Association of Machinists;=an.d Production Lodge No. 1200, Affi liated with the International Association of Machinists V. N. L. R. B., 110 F. ( 2d) 29 (C. A. for D. C.). S. BLECHMAN & SONS, INC. 503 At the hearing the principal reason advanced by the respondent for Gartner's discharge was that he persisted in neglecting customers assigned to him and disturbing other employees engaged at their tasks. The respondent further claimed that .on several occasions he was untruthful in dealings with its officials and that he was there- fore an undesirable employee. The untruthfulness consisted in Gartner's denying union activities about which the respondent's officials questioned him, some of which were undoubtedly legitimate and:none. of which appear to have been more extensive than activities which the respondent permitted the Association to carry on during working hours. He testified that the reason he denied the activities was his fear of discharge-under the circumstances a most justifiable fear. In any event, Slonim at the time of Gartner's discharge did. not raise the issue of untruthfulness. The reason for the discharge, entered by the respondent on his employment card was ". . . inatten- tive to customers & disturbing other employees during working: hours," and substantially the same reason was stated by the respond-. ent in letters sent respectively to the Regional Director and the Association on August 6. We are convinced that Gartner's untruth- fulness had nothing whatever to do with the action taken by the respondent but was only an afterthought. We think the record makes it clear, moreover, that the other matters mentioned were not the. actual reasons for Gartner's discharge and that the real reason was his membership in and assistance to the Union and the other activities he engaged. in. It is necessary, in order to evaluate the respondent's contention that Gartner was discharged for neglecting customers and disturbing other employees, to have some acquaintance with the mode of opera- tion of the respondent's business with respect, especially, to the sales- men. The respondent occupied seven and one-half floors of the building in which it was located, four of which were used for the purposes of- selling. The salesmen were stationed near the main en- trance of. the- building. As each customer came in his name was registered, and he-'was-: assigned to a ,salesman who accompanied him to all departments he desired to visit. Samples were on display in each department and one or more departmental stock clerks were stationed there who played an important role in the making of sales. They answered customers' questions about the goods in their depart- ments and sometimes the salesmen would stand aside for a consider- able period of time while the customers and stock clerks conferred together. Indeed, it was a. common and accepted practice for sales- men to leave their customers entirely for a while. Thus, with the knowledge and consent . of the respondent, they, often attended to 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD more than one customer at a time.14 Also, while with tlie^:custoiners they were frequently called to the office, located on the ground floor, or to see Green, the head of salesmen. Slonim testified that he fre- quently saw customers in the respondent's place of business unac- companied by their salesmen, and that on many of these occasions he asked the customers if they were being waited on. He made no claim that when this occurred he thought a salesman had failed properly to. carry out his duties. The stock clerks, in the absence of the salesmen, would continue to carry on business with the customers, and would even fetch goods for them from the stockroom. Slonim testified that he "frequently" saw Gartner disturbing other employees and that employees had told him Gartner disturbed them. The alleged disturbance apparently consisted in Gartner's speaking to the employees during working hours, but no showing was made that any employee's work was interfered with materially. Further- more, with the exception of Moe Weingast, whose case is discussed below, Slonim could not recall the name of a single employee who had been thus "disturbed" by Gartner or who had complained to him, nor did he claim he had ever reproved Gartner on these occasions. The incident involving Moe Weingast also involved Gartner's alleged neglect of customers. For proof of this incident the re- spondent relied chiefly upon the testimony of one David Levine, a stock clerk. Levine testified as follows : On the morning of August 5, 1937, Gartner came to his department with a customer. 'After showing the customer some samples, Gartner went to a neighboring department, where he spoke to Moe Weingast, showing him a paper which Levine later discovered was the petition for the meeting to impeach Hochberg. The customer then asked for Gartner, who by that time had disappeared, and Levine had Gartner paged. This proved unsuccessful, and when, a little later, the customer repeated his request, Levine reported the matter to the person in charge of salesmen. In a minute or two Slonim appeared and asked Levine where the salesman for that customer was, to which Levine replied that the salesman was Gartner, who had approached and spoken to Weingast and showed him a paper. Slonim then spoke to the cus- tomer. In the afternoon Levine was called to the office, where he repeated his story to Slonim, and later in - the day he was called in again and signed a typewritten statement, in form an affidavit, but not sworn to, setting forth some of the foregoing happenings. 14 Slonim testified that when salesmen waited on more than one customer, they were acting contrary to instructions . However , since customers could not get into the selling departments without the permission of Green, who assigned customers to their respective salesmen , it seems certain that the respondent did not forbid the practice. . . S. - BLECIDdAN. & SONS, INC. 505 Levine was confused as to the details of his story and changed his testimony in a number of material respects. Thus, testifying as to when the customer asked for Gartner, he said it was after "a few minutes," after "a few seconds," after "maybe a minute," and "I mean the minute as soon as Teddy Gartner left him, the customer was left standing flat all alone there. He turned around, asked `Where is. Mr. Gartner?"' As to the length of Gartner's conversation with Weingast, Levine testified that it took "A few minutes," that "It took a minute; maybe half a minute," and "I don't know." Also, he first testified of only one visit to the office that afternoon, but after discrepancies in,his testimony were pointed out, he recalled the second visit. Similarly, he first told of two employees-Weingast and an- other-that Gartner spoke to and put his arm round, but on further questioning was not sure as to the second. His statement that Slonim, on coming into the department, asked where the salesman was for that. customer was in effect contradicted by Slonim. Slonim testified that he did speak to a customer, but that he did not know whether or not it was the one Gartner had left, and when asked how he calve to speak to the customer, he replied that he spoke to any customer when he saw him standing round, "to find out about it." Gartner, though claiming the incident happened-1 or 2 weeks before his discharge,' admitted that he asked Weingast to sign the petition during working hours. We are convinced, however, that Gartner's; utilizing working hours to engage in non-business activity was not the reason. for his discharge. So far as appears in the record, no one besides Gartner was ever discharged for carrying on organizational activities during working hours, and Slonim admitted that the amount of such activity engaged in on company time was very large. He said : ... when there's competition in the place between two fac- tions, not only one is responsible because they all do it and you had to watch every one of them. Q. Were others creating disturbances there also? A. There were others, yes, there were. Q. Others who were active in the employees' association? A. Yes .. . He also stated : "Well, if I had to-to discharge, I think we'd have to discharge every man in our place . . ." Slonim admitted that Al Rich and Hochberg, both supervisory employees 1' as well as "everyone in the place" participated in electioneering. He said 15 As stated above , lie testified that on August b he was called to the office and accused by Slonim of telephoning to a customer and demanding that he refuse to receive goods Gartner had sold him . This testimony was not denied. "Rich was head of the order fillers . FIochberg 's authority has already been discussed. 506 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD ". . . there was an awful disturbance in the place at that time." It is obvious that he was referring to electioneering and disturbances during working hours. In addition , Slonim admitted that in the latter , part of June 1937 Hochberg was apprehended -during working hours soliciting signatures for a petition relating to the Associ tion- and dictating a letter not pertaining to business .-• Gartner -testified that he had often distributed such things as agenda and notices of meeting for the Association on company time without being called to account for it, and the respondent admitted that the Association was permitted to collect dues and that its grievance committee, num- bering 27 persons, was permitted to meet during working hours. Levine and Rosenthal gave additional testimony as to activities on behalf of the Association carried on on company time . Slonim con- tended that , except for the use of company time for collecting As- sociation dues and for meetings of its grievance board, the respondent -endeavored to stop the practices mentioned above. . In explanation of the fact that no one besides Gartner was ever discharged for organizational activity on company time Slonim testified that when he admonished the employees against the practices , all except Gartner obeyed . This explanation, however, cannot be reconciled with the proof -of the extensiveness of the organizational activities on company time. Moreover, the record shows that Hochberg , a supervisory em- ployee, persistently engaged in outside activities during working .hours with impunity, in spite of any admonitions Slonim may have given. At the hearing the respondent laid considerable emphasis upon the alleged fact that the customer had been neglected by Gartner and caused to complain to Levine. But the record shows that the abandon- ment of a customer on that occasion or on any other occasion was not the true cause of Gartner's discharge. The typewritten statement signed by Levine, supposedly after two interviews with Slonim about it, originally mentioned nothing about the customer , the words "While waiting on a customer " having been inserted by hand. Moreover, con- sidering the allegedly direct bearing of the incident upon the dis- charge, a strange confusion existed in the minds of Levine and Slonim as to the date of the incident. Levine first testified that he thought it happened , as Gartner had testified , "about a week or two" before Gartner's discharge, and he had to be led by the respondent 's counsel to state finally that it happened on August 5. Furthermore, the numerous contradictions in his testimony, some of which have been referred to above, throw doubt upon his entire testimony . Slonim, though aware that Gartner was discharged on August 6, testified that the Weingast incident occurred "Some time in August, I believe, the end of July or August. I don't remember just when it was." More- S. BLECHMAN & SONS, INC. 507 over, Slonim scarcely mentioned Gartner's neglect of a customer in his testimony as to the Weingast incident, merely stating that Levine on about August 4, 5, or 6-the witness could not say exactly when- reported that Gartner had left a customer unattended in his de- partment 17 Slonim also complained that he had reproved Gartner on several prior occasions, between April and July 1937, for leaving his cus- tomers. Gartner testified on direct examination that no complaints were ever made concerning his work but he did not take the stand to deny these occurrences specifically or to deny that he abandoned his customer in Levine's department. The testimony in the case shows that leaving a customer, even when not authorized, was not considered a breach of discipline serious enough to warrant discharging an em- ployee. Slonim was unable to recall a single .case besides Gartner's of an employee being discharged for that reason."' Yet he admitted that Green, the head of salesmen, complained of salesmen other than Gartner abandoning customers assigned to them. Slonim would not give even the roughest approximation of how many salesmen Green had complained about 19 and Green, who was probably the only person in a position to know the extent to which the various salesmen engaged in the practice, was not called to testify. The record thus shows that Gartner was no more guilty of the infractions alleged as the cause of his discharge than other employees of the respondent. On the other hand he was the principal promoter of the Union and a serious threat to the officials of the Association, the organization which the respondent preferred. His temporary demotion in June was undoubtedly intended as a warning to him of the possible consequences' of his organizational activities. His testi- mony at the earlier hearing and, especially, his bold move to impeach Hochberg as president of the Association finally convinced the re- spondent's officials that Gartner was incorrigible, and they decided upon his discharge. There is no doubt in our minds that the respond- ent considered Gartner a capable and efficient employee and that it would have been tolerant of his lapse in abandoning his customer and 17 Slonim's testimony was that he learned of the petition and Gartner 's connection with it from several employees whom he questioned as to the cause of the general excitement which he observed in the place of business of the respondent . He said nothing about being informed of the petition by Levine. 18 He testified that the employment card of an employee discharged in 1933 stated as the reason for his discharge , "didn't treat a customer properly ," that the card of an employee discharged in 1931 stated as the reason for his discharge, "Told the customer that goods not in stock without referring to it," and that the card of an employee dis- charged in 1927 stated as the reason for his discharge , "refused to do his duty and was found fooling around during the busiest time, the time of the busy season." He did not know exactly what the first statement meant and he had no further recollection as to any of the cases. 19 Slonim 's testimony was as follows : Q. Was it two or three , or fifteen or twenty [ salesmen]? A. . . . I can't say. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD approaching Weingast during working hours if it not been for his actions with respect, to the Union and the Association. We are satis- fied that Gartner was discharged solely because he,joined and assisted the Union and engaged in other concerted activities for the purposes of collective bargaining' and other mutual aid and protection. The respondent in effect thereby urged, persuaded, and warned its em- ployees to refrain from becoming or remaining members of the Union k and threatened them with discharge and other reprisals if they did so. We find that the respondent, by discharging Gartner, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in a labor organization, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. We also find that by, Reznick's remark to Gartner on August 4, 1937, quoted above, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.20 After his discharge, Gartner was unemployed until September 29, 1937, when he obtained a position as an outside salesman with a firm in the same business as the respondent. His starting salary was $23.00 per week, but at the time of the hearing he was earning com- mission which brought his weekly earnings to an average of approxi- mately $32.00 per week, the amount he earned with the respondent at the time of his discharge. For. the approximately 58 weeks between his discharge 'and the opening. of the hearing Gartner, if he had not been discharged and if he had been paid at the rate of his average earnings at the time of his discharge, would have received from the respondent about $1,856.00. He estimated his actual earnings during that period at $1,400.00. He testified that he desired reinstatement. Sidney Rosenthal. Sidney Rosenthal, a stock clerk in the reserve- stock department, was hired by the respondent on February 23, 1937, and was discharged on August 6, 1937, effective as of August 5. The work of the reserve-stock clerks was unskilled, and Rosenthal was unquestionably a competent and efficient employee. The reason for his discharge advanced by the respondent at the hearing was an al- leged act of insubordination, consisting of his being absent on August 6 without permission and contrary to specific instructions. Though not so prominent in organizational affairs as Gartner, Rosenthal made his influence felt, both by opposition to the Asso- ciation and by aid to the Union. On about April 13, 1937, he refused to sign a petition being circulated among the employees authorizing the Association to represent them in collective bargaining with the 20 We make no findings of unfair labor practices with respect to the occurrences set forth above which took place prior to July 26, 1937, because the complaint was limited in its scope to events which occurred on and after that date. S. BLECHMAN & SONS, INC. 509 respondent. Shortly after April 27, 1937, on which day a consent election was conducted by the Board among the respondent's em- ployees, Rosenthal, along with approximately 15 or 20 other em- ployees, was called to the respondent's office and was requested to. sign an affidavit stating that.Slonim had given the employees proper instructions prior to the election. In spite of the presence of Hoch- berg, Reznick, and officers of the firm on that occasion, Rosenthal refused to sign the affidavit. In about May or June 1937 Rosenthal joined the Union 21 and thereafter he regularly attended meetings of the members employed by the respondent. He spoke to approxi- mately 20 employees in an effort to persuade them to become members of the Union, and he was instrumental in having a number of them join. In June 1937 Asher, Rosenthal's immediate superior, told Rosenthal that he had heard complaints of Rosenthal's soliciting union members during working hours. Rosenthal denied to Asher. that he had done so during working hours, and Asher informed him that he was not concerned with his union activities, but that they were to be carried on outside of working hours. In that same month, during various lunch hours, William Koenigsberg, the buyer in the notions department and a supervisory employee, ordered employees from his department to get away from Rosenthal. This occurred after Rosenthal began to solicit members among those employees. At the end of July 1937 Nathan Blechman told Rosenthal he had received word that Rosenthal had attempted, to get a pledge card signed "in the building," and asked Rosenthal if he had any such cards in his pocket. Rosenthal replied that he had signed up one of the employees, but had done so before work. Nathan Blechman then remarked that "as long as it was before nine o'clock it was 0. K." - Rosenthal was absent from work on August 6, and late that after- noon the respondent sent him a letter of dismissal which read in part as follows : Since you have taken leave of absence without permission and contrary to instructions, we regret that we are compelled to dispense with your services. That same day the respondent also sent a letter to the Regional Director informing her that Rosenthal and two other employees had been discharged.22 This letter stated, in part : The reasons for our action, are due to the fact that they have taken leave of absence without permission, which is contrary to instructions, as is generally known, according to the notice given n The Union was then known as wholesale Dry Goods Employees Union, Local No. 19932, American Federation of Labor. 22 The two other employees were Sol Yoffle and Eugene Gruber. Gruber was later taken back when he explained his absence satisfactorily to the respondent. These discharges are not in issue in this case. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to all employees that none are to take any time off unless they so •report to our Mr. Nathan S . Blechman in advance, and per- mission given by him . . . Rosenthal received his dismissal letter on Saturday , August 7, which was not a workday. On Monday morning he went to the respond- ent's place of business and demanded the reason for the letter from Slonim, who answered that Rosenthal had been absent without per- mission. Rosenthal replied that he had received permission from Asher, and, according to Slonim's testimony, from Reznick also. Slonim then stated that he had been informed by Reznick to the contrary, and he said that he would speak to Reznick. Later that morning he informed Rosenthal that Reznick insisted Rosenthal had not received leave of absence. Twice Rosenthal, asked Sloninf to allow him to confront Reznick, but Slonim refused . Slonim did not inform Rosenthal that Asher also allegedly denied having given Rosenthal leave of absence. The testimony is sharply conflicting as to whether or not Rosenthal was given leave of absence. :Rosenthal testified that on the afternoon of Thursday, August 5, Asher granted his request for permission to take the following day off, and that later in the day Reznick remarked to him that he understood Rosenthal would not be there the next day, to which Rosenthal . replied, "That is correct." Reznick testified that on Thursday , after being informed by Asher that Rosenthal wanted Friday off, he told Rosenthal he was unable to help out, but that Rosenthal told him and Asher that whether or not Reznick could take his place, he would not come in the next day. Asher denied that he gave Rosenthal permission to stay away. He testified that on Thurs- day afternoon Rosenthal informed him he had an important engage- ment and would not be in the next day, to which Asher objected, stat- ing that the respondent was very busy, and short -handed to boot; that when Rosenthal insisted that he had to go away and therefore would not come in , Asher said he would see what he could do; but that after he had consulted Nathan Blechman , Slonim, and Reznick, he, as well as Reznick, informed Rosenthal that he could not have the next day off. Asher, Reznick, and Slonim attempted to corroborate the fore- going evidence by testimony as to various conversations which alleg- edly took place on August 5 with respect to Rosenthal's request. This testimony failed to accomplish its purpose because of the numerous inconsistencies it contained . For example, Slonim contradicted Asher's testimony that on August 5 Asher, informed him and Nathan Blech- man that Rosenthal had simply announced he would not come in the next day. Also, Asher testified that Rosenthal told Reznick and him that he would "not come in because he has an important engagement S. BLECHMAN & SONS, INC. 511 for Friday," whereas Reznick testified that Rosenthal told him noth- ing about having an important engagement.. In a further attempt to corroborate Asher's denial that he gave Rosenthal leave of absence, the respondent tried to prove that Asher had no authority to do so, and that general instructions had been issued requiring employees to apply to the office "for such leave, even, for a single day. Asher, Rez- nick, Slonim, and Nathan Blechman gave testimony to this effect. In this connection the respondent laid considerable emphasis upon the posting of certain notices instructing the employees to make arrange- ments with the office for taking time off, but the record shows that those notices referred only to vacations and not to cases .like Rosenthal IS.23 Furthermore, Asher's. uncontradicted testimony shows that his sub- -ordin'ates'habitually.dealt with.him'and not with the office in arranging for such occasional absences, and that Nathan Blechman relied almost entirely upon Asher's judgment as to whether or not permission should be granted in each particular case. We cannot, therefore, credit the testimony that the respondent had issued general instructions of the kind claimed, and we find that Asher had authority to grant leave of absence to his subordinates, including Rosenthal. Finally, the re- spondent attempted to show, through Reznick and Asher, that Rosen- thal could not be spared on August 6 and that because of his absence his work had to remain undone. In view of Reznick's statement that if Rosenthal had told him he had an important engagement, he would have considered taking his place and might have done so, we do not believe his testimony that when Rosenthal did not report on Friday, he"wa^unable•to take his place because he was busy doing repair work. Asher's testimony that because of the shortage of clerks Rosenthal's work could not be done until the following Monday, when two clerks returned from their vacations, did not find support in the respond- ent's records, which showed that no clerks had returned to work at that time. Asher, indeed, was an especially untrustworthy witness. He testified that Reznick had no title but Reznick's testimony estab- lished that he had the title "general superintendent." He testified at first that after consulting the office on August 5 he did not tell Rosenthal that he could not have the next day off, but immediately thereafter hee stated that he did. He testified that in June he had a conversation with Rosenthal about the Union but later stated that this testimony was not correct. He made a similar admission concern- ing his statement that no employees in his department took vacations later than the middle of July. 23 Although • the respondent's witnesses claimed that the alleged rule as to obtaining leave of absence had existed for many years, the notices had never been posted until 1937 , when the respondent first instituted paid vacations among its employees . Moreover, the notices were kept posted only for the period of about 8 or 9 weeks just prior to the vacation season. 512 DECISIONS OF NATIONAL' LABOt RELATIONS BOARD The foregoing considerations impel us to the conchision'that Asher and Reznick are not to be believed, aiid 'that Rosenthal was in fact granted a leave of absence by Asher. Other considerations lead to the same conclusion'. In the letters which the respondent sent on Au''-` gust 6 to the Regional Director and to Rosenthal the respondent based, Rosenthal's discharge Upon his alleged disobedience of non'-existent general instructions with regard to leave of absence, and not upon his disobedience of specific orders:: 4 Furthermore, Slonim's refusal to permit Rosenthal to confront Reznick on 'August 9 is indicative of the validity of Rosenthal's contention. If Slonim's motive in dis- charging Rosenthal had been the maintenance of proper discipline, as he in effect claimed, he. would, we think, have granted Rosenthal's request. Taking all these matters into consideration, together with the respondent's hostility to the Union, and the discriminatory dis- charge of *Gartner on the following day because of union activities, we conclude that Rosenthal had permission to be absent on August 6 and that the respondent discharged him because he joined and assisted the Union and engaged in other concerted activities for the purposes of collective bargaining and other mutual aid or protection: We find that the respondent, by discharging Rosenthal, discrinii-, rated in regard to his hire and tenure of employment, thereby dis- couraging membership in a labor organization, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Rosenthal was unemployed at the time of the hearing. He had previously had temporary work at which he earned a total of approxi- mately $473.60. If he had not been discharged, and if he had been paid at the rate of his earnings at the time of his discharge, he would have earned up to the opening of the hearing about $784. He testified that he desired reinstatement. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, B, above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. u We are led to conclude that the respondent in its letter to Rosenthal was referring to his disobedience of general instructions rather than his disregard of a specific order since identical letters were sent to Yoffie and Gruber who, the respondent claimed, had dis- obeyed the alleged general instructions and not a specific order. Moreover, on the same day the respondent advised the Regional Director that all three individuals had been discharged for absence contrary to instructions which could only have meant general instructions. S. BLECHMAN & SONS,, _INC. 513 THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act and to restore, as nearly as possible, the situation that existed prior to the commission of the unfair labor practices. We have found that Tobias Gartner and Sidney Rosenthal were. discriminatorily discharged. We shall, accordingly, order the re- spondent to offer them 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 their respective discharges by pay- ment to each of them of a sum equal to the amount which he normally would have earned as wages, commissions, or other forms of pay- ment from the date of his discharge to the date of the. offer of rein- statement, less his net earnings 25 during said period. 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. United Wholesale Employees of New York, Local 65, United Retail-Employees of America, now known as United Wholesale and .Warehouse Employees' Union, Local 65, United Retail Employees of America, is a labor organization within the meaning of Section 2 .(5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Tobias Gartner and Sidney Rosenthal, thereby discouraging membership in the Union, the respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (3) of the- Act. 3. By interfering with, restraining, and coercing its employees in .the exercise of the rights guaranteed in Section. 7 of the Act,, the respondent has engaged .in, and' is engaging in unfair labor. practices .,-within the meaning of Section 8 (1) of the Act. a5 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 America, Lumber and Sawmill TVorkers, Local 2590, 8 N. L. R . B. 440. Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects are not considered as earnings , but, as ' provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appro- priate :: fiscal,:.agency of the rode,al State county municipal or other -gocernment•-or goveriluients :which supplied ` the funds for said work-relief projects._ 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices .affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section'10 (c) of the National Labor Relations Act, S. Blechman & Sons, Inc., New York City, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Wholesale and Ware- house Employees' Union, Local 65, United Retail Employees of America, or any other labor organization of its employees,; by dis- criminating in regard to the hire or tenure of employment or any term or condition of employment of its employees; (b) In any other manner interfering with, restraining, or coercing its employees in their right to self-organization, to form, join, and assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, 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 Tobias Gartner and Sidney Rosenthal immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges; (b) Make Tobias Gartner and Sidney Rosenthal whole for any loss of pay they have suffered by reason of the -mspondent's discrimi- nation in regard to their, hire arid tenure of employment; -by payment to each of them of a sum of money equal to that which he would normally have earned as wages, commissions, or other form of pay- ment during the period from the date of such discrimination against him to the date of the offer of reinstatement, less his net earnings during such period, deducting, however, from the amount otherwise due to each of the said employees, monies received by said employee during said period for work performed upon Federal,- State, county, . municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which sup- plied the funds for said work-relief projects; (c) Immediately post, and keep posted for a period of at least sixty (60) consecutive days from the date of posting, in conspicuous places throughout its place of business, notices to its employees stat- S. BLECHMAN & SONS, INC. 515 ing (1) that the respondent will cease and desist in the manner set forth in 1 (a) and (b), and will take the affirmative action set forth in 2 (a) and (b), of this Order; and (2) that the respondent's em- ployees are. free to become and remain members of United Wholesale and Warehouse Employees' Union, Local 65, United Retail Em- ployees of America, and that the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization; (d) Notify the Regional Director for the Second Region in writing within fifteen (15) days from the date of this Order what steps the respondent has taken to comply therewith.